Chapter II. John Rawls on Justice as Fairness

                     II. 1.       What is Justice?

Justice is usually regarded as an ideal, moral, and correct concept of the way persons interact. Justice is related to concepts such as freedom, equality and so on.  It is the fundamental objective study related to areas such as ethics, politics, and law.

Justice is normally defined as the system that assures that a person receives what is due for their performance and contributions. It can be seen as “A day’s pay for a day’s work.” Let us mention various forms of justice, and then move into an analysis and evaluation of Rawls’s conception of justice. 

Justice can be seen as formal, substantive, retributive, corrective, commutative or reciprocal, and distributive.

First of all, formal justice is the equal and consistent applications of the principles of a state’s laws, whether the laws themselves are “just” or not. 

Substantive justice is concerned with the actual “rights,” or what an individual can realistically demand of the government.

Retributive justice is concerned with providing retribution or punishment for an offense against the state, corporate entities, associations, or individuals. This has expressed itself as a desire to “get even” for sufferings caused by a person or group, and as a means of deterring future offenses.     

Corrective justice is a matter of setting things right by imposing judgments requiring compensation for civil damages. (See Audi, Robert, ed. The Cambridge Dictionary of Philosophy, 1995. p395).

Distributive justice and commutative justice are often seen as complimenting one another. Distributive justice dictates fairness between the state and the people, especially in regard to the distribution of public benefits and burdens. Commutative justice governs exchanges between individuals or commercial enterprises. The two are inseparable because the welfare of the state (the common good) is closely linked to the fairness and credibility of the exchanges between individuals or commercial entities.

In order to understand the concept of justice more clearly, we should take a look at views of justice expressed by the two greatest philosophers of the Western world, Plato and Aristotle.

Many others agree with their views, for they consider justice the most significant virtue. Others, such as charity, loyalty, compassion, integrity, and so on flow from it. However, Plato and Aristotle understand “justice” in two different ways.

In his Republic, Plato sees justice as the greatest and highest virtue, separate from the other virtues. For him, “We speak of justice as residing in an individual man and also as residing in an entire city…” (Plato, “Republic.” See in Steven M. Cahn, ed. Political Philosophy: The Essential Texts. 2005, p59).

According to Richard Kraut, Plato defines justice as a personal state, 

a unitary psychological phenomenon that . . . is at bottom a relationship one has to oneself involving a relationship among the parts of one’s soul, that it is most fully exhibited by philosophers, and that it is best understood by being placed in the context of an ideal society. (Kraut, Richard. Aristotle: Political Philosophy, p100).

In his work, The Republic, Plato understands justice as “the condition of the soul that allows each of its components to do its own work: reason rules, spirit serves as its ally, and the appetites obey.” (Kraut, Richard, Aristotle: Political Philosophy, p121). In his own terms, found in The Republic,

‘… we must remember that each of us will be just and perform his proper function only if each part of him is performing its proper function.’

‘Yes, we must certainly remember that.’

‘So the reason ought to rule, having the wisdom and foresight to act for the whole, and the spirit ought to obey and support it.’

‘Certainly.’ (Plato. The Republic. Translated with an Introduction by Desmond Lee. 2^nd Edition, 1974, pp218-9).

Plato classifies people into three classes according to their soul’s traits: philosophers, soldiers and workers. In a society where there are interactions of these various types of people, justice is found when these people do their own jobs properly, that is to say the elements of the soul, reason, spirit, and appetite, are properly and harmoniously related. He also mentions that justice is a harmonious inner state that exists within a person, so that the just person treats others fairly as a consequence of this inner harmony.

‘So there will be no difference between a just man and a just city, so far as the element of justice goes.’

‘None.’

“But we agreed that a state was just when its three natural constituents were each doing their job, and that it was self-disciplined and brave and wise in virtue of certain other states and dispositions of those constituents.’

‘That is so,’ he said.  (Plato. The Republic. Translated with an Introduction by Desmond Lee. 2^nd Edition, 1974, p209).

Injustice, for Plato, is a result of conflicts among these elements of the soul.  For instance, a person decides by his reason to refrain from eating, yet the appetite refuses to follow this. In a similar way, one may wish to be fair in an exchange of goods, but appetite leads one to demand too much from the other party.

Aristotle, on the contrary, understands justice differently. Unlike Plato, Aristotle, in his Nicomachean Ethics, considers justice as the greatest and most important virtue of all in terms of political philosophy. He focuses his attention on this. Differently from Plato, Aristotle is said to hold that “Justice is not a relationship of the parts of one’s soul but a relationship among separate human beings, and political justice (the most important aspect of this virtue) requires that one treat others in ways that accord with the rules of one’s community—­defective though that community may be.” (Kraut, Richard, Aristotle: Political Philosophy, p101).

To understand justice, we need to understand injustice in the sense that we recognize beauty, for instance, because we can distinguish it from ugliness. It is similar with justice and injustice. Aristotle regarded justice as the complete and supreme virtue, not an absolute virtue in itself or in the soul, but found in relations to other virtues as mentioned; on the other hand, injustice is vice, not a part of some other vice, but a whole vice in itself. Of course, justice is a virtue, but to make a distinction between justice and virtue is possible by looking into the relations each has with other virtues. Justice is a moral state in relation to others virtues; and virtue is also a moral state, but in an absolute sense, unrelated to other elements.

Thus, justice is “the moral state which makes people capable of doing what is just, and which makes them just in action and in intention;” whereas injustice “is the [opposite] moral state which makes them unjust in action and in intention.” (Aristotle. The Nicomachean Ethics. J. E. C. Welldon, trans., 1987, p142).

Furthermore, he distinguishes between two kinds of justice: in a broad sense, justice is “lawfulness,” and in a narrow sense it is “equality or proportionality, which comes in three kinds (distributive, corrective, and reciprocal).” (Kraut, Richard, Aristotle: Political Philosophy, p98). For example, a just person is in one sense, lawful; in another, equal; whereas an unjust person is, in one sense, lawless; in another, unequal. The unjust person is someone who is not satisfied with an equal share. He allocates to himself too much and he leaves for others too little. As Aristotle mentioned,

[A person] is said to be unjust, if he breaks the law of the land; he is also said to be unjust, if he takes more than his share of anything. It is clear then that the just man will be (1) one who keeps the law, (2) one who is fair. Accordingly what is just is (1) what is lawful, (2) what is fair; what is unjust is (1) what is unlawful, (2) what is unfair. (Aristotle. The Nicomachean Ethics, p144).

Since some laws are unjust, what does Aristotle mean by “lawfulness”? By lawfulness he means in accord with laws created by people that are harmonious with the natural laws, which he defines as “general principles of conduct which are ascertained by reason,” (D. R. Bhandari, History of European Political Philosophy, p63), in the sense that they are moral, that is to say, they are characterized by morality and universality. We should also note that Aristotle conceives natural laws not the same as natural rights, for in fact he does not believe in natural rights, though he appreciates natural laws.

Now we come to justice in its narrow sense, consisting of equality or proportionality. It can be understood in regard to these three kinds of justice: distributive, corrective, and reciprocal.

Distributive justice is “the distributions of honour or wealth or any other things which are divided among the members of the community, as it is here that one citizen may have a share which is equal or unequal to another’s”; it is determined, according to Aristotle, by merit which is understood differently according to people: the democrats understand freedom, the oligarchs wealth or nobility, and the aristocrats virtue (See Aristotle, The Nicomachean Ethics). Thus, for Aristotle, distributive justice appoints to every man his due in a society in regard to his contributions to the society. It is clearly similar to proportionate equality that is involved with his merit or desert in the sense that he is treated in accordance with his social actions and contributions.

Corrective justice is “corrective of wrong in private transactions.” It is primarily concerned with voluntary commercial transaction like sales, hiring, furnishing of security, etc., and other things like aggression on property and life, honor, and freedom. Of course, for Aristotle, the private transactions are concerned with two transactions: the first one is voluntary: entered into by people’s free will, for instance, selling, buying, lending at interest, giving security, lending without interest, depositing money, hiring. The other one is involuntary which can be either secret, i.e., theft, adultery, poisoning, pandering, enticing slaves away from their masters, assassination, and false witness; or violent, i.e., assault, imprisonment, murder, rape, mutilation, slander, and contumelious treatment. (See Aristotle. The Nicomachean Ethics, pp150, 151).

For corrective justice, Aristotle holds that “a community will not succeed in achieving its goal—the well-being of all—unless its members regard each other as equals, despite differences among them in power, wealth, education, and the like;” whereas “distributive justice requires distinctions based on merit, and it serves the good of all to have such hierarchies, when they are in fact based on merit.” (Kraut, Richard, Aristotle: Political Philosophy, p149).

The last one, reciprocal justice, is akin to commutative justice; for Aristotle, it is seen in the daily commercial activities wherein both citizens and non-citizens participate: buying, selling, lending, renting, and the like. It deals with just relation with commercial exchange. His basic idea is “goods should be exchanged for goods on an equal basis.” (Kraut, Richard, Aristotle: Political Philosophy, p152).

Aristotle’s concept of reciprocal justice is not the same as the Pythagoreans’; in fact he criticizes their concept. The Pythagoreans’ rule is “should one suffer the things one did, right justice would be done (V.5 1132b27).” Since the Pythagoreans’ justice as reciprocity can be interpreted in two ways: “it might mean not only that good should be returned for good, but also that evil should be returned for evil,” (Kraut, Richard, Aristotle: Political Philosophy, p152); according to Aristotle, in some regard, this principle is agreeable in the sense that “evil should be returned for evil: those who do injustice deserve to suffer some punishment. But this is because justice requires a restoration of status that serves the public good—not merely the piling up of harms.” (Kraut, Richard, Aristotle: Political Philosophy, p153).

Aristotle criticizes Pythagoreans.  First, “Pythagoreans go wrong because their definition of justice is unqualified (1132b21-2): they equate justice with reciprocity, as though that were the whole of this virtue.” Second, their formula: “‘should one suffer the things one did, right justice would be done,’ gives us bad [ad]vice in particular cases (1132b28-30).” (Kraut, Richard, Aristotle: Political Philosophy, pp152, 153).

Aristotle claims that happiness is impossible unless everyone has an adequate supply of material goods.  They cannot achieve this unless they practice some form of trade or commerce, using some kind of currency to facilitate their transactions.

He goes on to note that people will not trade unless they can be assured that they will get a fair exchange. They must be able to protect themselves from those who enjoy getting more than they deserve.  Those who have established a good reputation can be relied upon, and it is such people who support the system that provides the goods.

Those who are driven by greed in commercial relations harm the people they cheat and they also damage the whole society, because they discourage trading and free exchanges of goods by souring the experience and destroying trust. According to Aristotle, “Justice in economic relations is not exemplified by builders building and farmers farming, but by citizens and non-citizens alike abiding by the rules of exchange that serve the common good.” (Kraut, Richard, Aristotle: Political Philosophy, p156).

In modern times distributive justice is seen in new ways, leading to various discussions and different ideas on the problem of distributive justice.  For example, instead of the old arguments about fair wages and fair prices, there has been the enormous historical struggle over the distribution of property, position, and wealth embodied in the rise of Marxism and the Soviet Union, modern China, and the smaller Marxist and socialist republics like Cuba, Vietnam, North Korea, Venezuela, and the like.

Though the modern controversies and evolving concepts involve a meaning of “equality” very different from that of ancient Athens and its illustrious philosophers, today’s systems of justice and philosophers of justice are deeply indebted to the ancients’ way of thinking. No one will deny that justice demands that equals be treated equally. What has changed is the concept of the distinction between classes, such as females and males, citizens and slaves, and scholars, workers, and soldiers.  Today egalitarianism is taken for granted by nearly every political thinker. It usually means that “all are equal by virtue of being human beings.” (Barry, Vincent, Applying Ethics: A Text with Readings, Second Edition, 1985, p71). Aristotle, although imbued with his culture’s traditional concepts of a stratified society, expressed his concern for the welfare of the least powerful members of society, a burning issue social justice even today on national and international levels. Plato was concerned with justice for people at large, seeing it as a question of who is entitled to what, and asking for what reason individuals are “entitled” to share in the community’s bounty.

Having considered the ancient Greek conceptions of justice, let us now look at what Rawls means by “justice as fairness.”

                     II. 2.       Justice as Fairness

Hailed as the greatest and most influential philosopher in the fields of political and moral philosophy in our time and, for many, the greatest political philosopher in the 20th century, John Rawls argues that justice should be understood in terms of fairness.  What does Rawls mean by “justice as fairness”?

His theory of justice is based on the idea that justice is fairness. By fairness he means impartiality. In his famous book, A Theory of Justice, chapter one is entitled, “Justice as Fairness,” Rawls describes justice as “the first virtue of social institutions, as truth is of systems of thought.” (Rawls.  A Theory of Justice. 1971, p3.)

Does Rawls see no difference between the terms justice and fairness? It seems that the title of the book’s first chapter, “Justice as Fairness,” implies that justice is not different from fairness, but Rawls clearly argues that they are not the same.  In the first chapter, he writes: “The name [justice as fairness] does not mean that the concepts of justice and fairness are the same.” (Rawls. A Theory of Justice. 1971, pp12-3; see A Theory of Justice: Revised Edition, 1999, p11.) In fact, he wishes to demonstrate that fairness is the most fundamental concept in justice, but it remains only a part of justice.

In this paper I wish to show that the fundamental idea in the concept of justice is fairness; and I wish to offer an analysis of the concept of justice from this point of view…I shall then argue that it is this aspect of justice for which utilitarianism, in its classical form, is unable to account, but which is expressed, even if misleadingly, by the ideas of the social contract. (Rawls, John, quoted by D.D. Raphael, Concepts of Justice. 2001, p197.)

More than this, he says ‘justice as fairness’ is an attempt to “convey the idea that the principles of justice are agreed to in an initial situation that is fair.” (Rawls,   A Theory of Justice, 1971, p12.)

Rawls’s contribution to justice concerns not only what is right, but also what is good. It means something is right when it is fair and good. Moreover, goodness for a person is the satisfaction of a rational desire. Every person has different ideas and plans for life. To pursue each one’s plan for living, each might see that what is good for him/her, it might be not good for the others, because they may seek to satisfy different rational desires.

Rawls sees this very clearly, and suggests that right must be set down in the social contract so that each member’s liberty, opportunity, self-respect and so on can be guaranteed equally, justly and fairly. This is established in the condition Rawls calls the “Original Position,” which will be explained later on in this chapter.

                     II. 3.       A Free and Equal Person

According to Rawls, justice as fairness is a foundation for a fair society. He considers the fundamental idea of a fair society as “a fair system of cooperation.” This fair system of cooperation developed over generations as a result of two essential elements: The first is “the idea of citizens as free and equal persons;” and the second is “the idea of a well-ordered society as a society effectively regulated by a public political conception of justice.” (Rawls, Political Liberalism, 1993, p35.)

What does he mean by “citizens as free and equal persons”?

First of all, Rawls sees citizens as political and declares they as free in three respects: first, “they conceive of themselves and of one another as having the moral power to have a conception of the good.” (Rawls, Political Liberalism, 1993, p30.) Second, “they regard themselves as self-authenticating sources of valid claim,” (Rawls, Political Liberalism, 1993, p32), in which they regard themselves as having duty and obligation to their society and to make claims to advance their conception of the good which is compatible to the public conception of justice. Third, “they are viewed as capable of taking responsibility for their ends and this affects how their various claims are assessed.” (Rawls, Political Liberalism, 1993, p33.)

Finally Rawls concludes that citizens are regarded as free and equal persons because they possess two qualities which represent their powers of moral personality; they are ‘the capacity for a sense of justice’ and ‘the capacity for a conception of the good.” (Rawls, Political Liberalism, 1993, p34; also see in A Theory of Justice, 1971, p505.) These two qualities in individuals as free and equal persons are necessary for the two ideas of cooperation: in terms of fairness and of each participant’s pursuit of rational advantages.

                     II. 4.       A Just Society

Rawls’s theory of justice is a call for consistent, deeply respected fair practice in a community, an institution, or a society. He regards the basic structure of a society, for instance, as a subject matter of justice. From our experience, we see that some institutions ignore the matter of justice, and in fact, cause resentment, envy, alienation, exploitation and so on. This is the main concern of Rawls’s theory, because a community, an institution or a society plays a very significant role in assuring that every one of its member can enjoy their rights and privilege in terms of equality and fairness, in order to avoid or at least reduce the exploitation and resentment mentioned above.

His theory of justice is designed to foster equality in terms of a fair distribution of advantages as the basic concern for constitutional and legal provisions that structure social institutions. He clearly sees that a fair community, institution, or society plays a significant role in everyone’s life in the sense that it influences the opportunity of everyone in it and guarantees that everyone is free to exercise their basic liberties within the fair set of rules fostered by that community, institution or society.

In order to make this ideal a reality, Rawls’s theory of justice regards “the basic structure of society” as the primary subject of justice, which he defines as

the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation. By major institutions I understand the political constitution and the principal economic and social arrangements….
The justice of a social scheme depends essentially on how fundamental rights and duties are assigned and on the economic opportunities and social conditions in the various sectors of society. (Rawls, A Theory of Justice, 1971, p7.)

Thus, a society is a fair one if and only if it cares for its citizens as free and equal individuals and provides a set of fair rules so that everyone can exercise their rights, freedoms, and equality in order to avoid injustice, inequality, and exploitation in their living activities, such as social, economic, political undertakings.

                     II. 5.       The Principles of Justice as Fairness

The reason why Rawls defines justice in terms of fairness is because the basic structure of a society centers on what he calls the object of the original agreement.  Here, fairness is the sought-after ideal of justice which the contractors are to agree about. In this sense, the principles of justice play a very important role as the basic structure of a society in which the basic rights and duties are to be assigned and the division of social benefits is to be determined rationally and fairly.

What are the principles of justice, according to Rawls?  Rawls calls his concept “justice as fairness” because in it the principles of justice are

the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association. These principles [would] regulate all further agreements; they specify the kinds of social cooperation that can be entered into and the forms of government that can be established. (Rawls,  A Theory of Justice, 1971, p11.)

According to Rawls, there are two principles of justice as fairness which address two different aspects of the basic structure of society concerning of basic primary goods:

First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.

Second: 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, A Theory of Justice, 1971, pp60, 302.)

II. 5.1. First Principle of Justice as Fairness

The first principle of justice as fairness is the Liberty Principle.  It deals with rights and states “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others” and addresses the essentials of the constitutional structure which assure that each citizen has access to an equal claim of basic rights and liberties like everyone else in the society. As very clearly mentioned by Rawls, in regard to the first principle,

The basic liberties of citizens are, roughly speaking, political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly, liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) property; and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law. These liberties are all required to be equal by the first principle, since citizens of a just society are to have the same basic rights. (Rawls, A Theory of Justice, 1971, p61.)

Since we are in the society, our basic rights and liberty have to be in agreement with other citizens; if not, it leads to a violation of other people’s basic rights and liberty. Thus, Rawls argues that the rights and liberties are set by the public rules of the basic structure of society, and each individual’s freedom is determined by these rules equally with everyone else in the society.  This is what he wrote to explain this first principle of justice:

The first principle simply requires that certain sorts of rules, those defining basic liberties, applying to everyone equally and that they allow the most extensive liberty compatible with a like liberty for all. The only reason for circumscribing the rights defining liberty and making men’s freedom less extensive than it might otherwise be is that these equal rights as institutionally defined would interfere with one another. (Rawls,  A Theory of Justice, 1971, p64.)

II.5.2. Second Principle of Justice as Fairness

The second principle is mainly about social advantages: “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,” addresses the fundamental aspects of the basic structure of society referring to its citizen’s distribution of opportunities, income, wealth and so on.

The second principle is divided into two parts: the first part is called the “Difference Principle”: “Social and economic inequalities are to be arranged for the greatest benefit to the least-advantaged members of society”; and the second part is called “the Principle of Fair Opportunity”: “Social and economic inequalities are to be arranged so that offices and positions must be open to everyone under conditions of fair equality of opportunity.”

Rawls sees very clearly that in a democratic society where freedom and equality of the people are of great importance, the two principles of justice are needed so that each citizen can enjoy personal freedom, that is to say, all economic factors are subordinate to personal freedom. Probably the reason why he raises this issue is that a person’s liberty is limited when he is poor.  Assuring that everyone has at least some minimum basic economic foundation guarantees that he will have at least some liberty. As we shall see later, the deliberators in the Original Position deliberations know it is better to have a guaranteed minimum than it is to gamble on being one of those with better circumstances and hence more liberty because once the hypothetical contract is in place, if one finds he has lost his gamble, and is among the poorest without at least a minimum amount of wealth, he will have to live in misery forever.

This is the reason why Rawls argues that, for a fair and just society, we have to care primarily for the basic liberty and rights of the people. Furthermore, the first principle is absolute more or less in the sense that it cannot be violated by any other principles; let’s say the second one, even though it is violated for the sake of the second one. As he mentioned, the first principle is lexically prior to the second principle.  He gives more details about this in the priority rules. (See II.5.3.)

Thus, Rawls urges for the first principle that people’s basic equality and freedom have to be safeguarded for all with no exception.

However, in the second principle, Rawls suggests exceptional cases of inequality and he acknowledges that inequality in a basic structure of society is acceptable. He is aware, however, that the two principles are different. If the difference is arranged in such a way that even the least advantaged has the minimum fulfillment of his needs, the system works for the benefit of everyone.

I shall maintain. . . that the persons in the initial situation would choose two rather different principles: the first requires equality in the assignment of basic rights and duties, while the second holds that social and economic inequalities of wealth and authority, are just only if they result in compensating benefits for everyone, and in particular for the least advantaged members of society. (Rawls, A Theory of Justice, 1971, pp14-5.)

Moreover, inequality is acceptable if “All social values—liberty and opportunity, income and wealth, and the bases of self-respect—are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s advantage,” (Rawls, A Theory of Justice, 1971, pp62, 303), and the least favored receive the maximum possible benefit. That is to say, “each individual must be better off with that inequality than without it.” (Lichtenstein, Peter M. “Economic Democracy: The Rawls – Vanek – Sraffa Connection”. See in Review of Social Economy, Vol. XLII, No. 2. Date: October 1984. P173.)

In short, the social and economic inequality is acceptable if and only if it is arranged with conditions given below in II.5.2.1 and II 5.2.2.:

II.5.2.1. The Difference Principle

This principle’s main concern is income and wealth. According to Rawls, social and economic inequality is acceptable when it is arranged for helping those who are the least fortunate persons in society.

II.5.2.2. The Principle of Fair Opportunity

This principle requires that the social structure that relates to the distribution of social advantages, i.e. wealth or income, must care for the fair equality of opportunity for every citizens of a society. In this case, the inequality that is related with the positions or offices or jobs in a society is acceptable because if it benefits everyone and especially it helps those who have talents, yet they have no chance to express, contribute or develop their talents. So society has an important role in helping those who are in need.

According to Rawls, the two principles of justice are fair because they care for the basic liberty and rights of the people, and also assure for everyone equal opportunity in their pursuit of wealth and income. More than this, they are fair when the method of applying them into praxis is also fair. Thus, if the two principles of justice are applied successfully, Rawls believes that they will provide the best chance of maximum advantages for both society and citizens in terms of liberty, rights and the enjoyment of social advantage for all of the members in that society, maximizing benefits for the least well-off.

II.5.3. The Priority Rules

In regard to the priority rules, Rawls is well aware that for some cases the two principles can be in conflict with one another. He has mentioned that there are two priority rules: the first priority rule he calls the Priority of Liberty, whereas the second priority rule he calls the Priority of Justice over Efficiency and Welfare (Rawls, A Theory of Justice, 1971, pp302-3). In this sense, he ranks his first principle on equal basic liberty for all as the first priority, and the second principle on distribution of wealth and income as the second priority.

Concerning on the first priority rule, Rawls argues that the principles of justice must be ranked in lexical order so that liberty can be restricted only for the sake of liberty. He proposes that it would be better to avoid finding a single overriding principle and instead rank them in a serial or lexical order in the sense that we should give “priority to principle A until it is fully satisfied (or unless it does not apply) before we are allowed to move on to implement principle B, which in turn must be fully satisfied before we may move on to implement principle C, and so on.” (Raphael, D.D, Concepts of Justice, p202.)

Moreover, the principles of justice should be lexically ordered in the sense that a society is justified when it does not decrease its member’s liberty by increasing its social and economic advantages. Thus, he raises the specific priority for two cases:

(a) a less extensive liberty must strengthen the total system of liberty shared by all;

(b) a less than equal liberty must be acceptable to those with the lesser liberty.

For the second priority rule, Rawls argues that the second principle of justice is lexically prior to the principle of efficiency and to that of maximizing the sum of advantages; and fair opportunity is prior to the difference principle. He raises two cases:

(a) an inequality of opportunity must enhance the opportunities of those with the lesser opportunity;

(b) an excessive rate of saving must on balance mitigate the burden of those bearing this hardship.

In short, we can conclude that the priority of his principles of justice, in case there is any conflict between the two principles when the decision is made, the first principle on equal basic liberty has to be the first priority whereas the second one is regarded as the second priority, because the second principle of justice’s main concern is also for the sake of equal liberty for all.

If justice is regarded as fairness, when principles of justice are imposed on the people, these questions arise: What should fairness be? What does fairness require? How do we know that the principles are fair?

The answers to these questions of what justice as fairness is can be seen later as we analyze meaning of the original position.

                     II. 6.       The Role of the Original Position

John Rawls, along with other philosophers like Hobbes, Rousseau, Locke and Kant, has talked about a social contract. However, Rawls did not base his theory on a traditional social contract, which concerned the way a government receives its legitimacy by the general agreement of the people governed; instead, he created a mental stratagem called the “Original Condition,” analogous to the “natural state” of earlier theories, to arrive at principles set down in a “hypothetical contract” that would establish how the state would distribute freedom and public wealth to the people. Instead of justifying the existence of the state, it attempts to justify the contract that governs the actions of the state in regard to the people under it. As he puts it,

…we are not to think of the original contract as one to enter a particular society or to set up a particular form of government. (Rawls, A Theory of Justice: Revised Edition, 1999, p10.)

His “original position” in which people agree to a hypothetical contract that will govern the state in its dealings with the people is formed by the people (not real people, but hypothetical moral and reasonable people) operating under an imaginary “veil of ignorance” about themselves and their social position, even their gender, and, considering the possible ways their government might distribute wealth, privilege, and freedom among its real people represented by the imaginary people involved in selecting the terms of the hypothetical contract. Rawls has us picture in our minds imaginary people creating and agreeing on a “hypothetical contract” which guarantees that people will enjoy the widest possible liberty and the state will distribute goods and services in ways that provide the maximum amount of support for the persons who have the minimum amount of wealth, privilege, and status.  

Rawls called the imaginary condition in which the contractors consider the terms of the contract the “Original Position.” It is, as stated above, analogous to the “natural state” of man under Rousseau, Locke, and others. He justifies its use by showing that it minimizes all self-interest and bias by veiling the parties’ social position and economic status while using the stratagem of “finality,” meaning the contract will be valid and binding forever once agreed upon, to eliminate risk-taking that could lead deliberations to gamble on setting up a biased contract with the hope of discovering that they are actually among those who benefit from bias. By making the contract forever binding, someone must give up all hope of living decently if they gamble and lose. Rational people, Rawls affirms, will never take such a gamble because being assured of winning something small but decent is better than risking being miserable, ending up with nothing, without hope of improvement.

Rawls’s idea on original position is radically different from the traditional “social contract” theories because the old contracts were designed to show how the people agreed to form a government, and under what condition they could legitimately dissolve the government. Rawls’s use of the original position to form a hypothetical contract is not a method of entering a particular society, setting up a government, or legitimizing the state, as the original social contracts sought to do. Instead it establishes the principles which “are the object of the original agreement.” (Rawls, A Theory of Justice, 1971, p11; and A Theory of Justice: Revised Edition, 1999, p10.) To put it simply, his work seeks to create or legitimize a liberal government that assures that individual liberty will be extended as far as it can be, limited only because it is not allowed to encroach on or limit other people’s liberty, and assures that all will be assured of what amounts to a “decent” life, with a fair opportunity to advance.

In regard to distributive justice, it attempts to arrange everything so that maximum benefits are allotted to the minimally advantaged. The original social contacts sought to guarantee a decent life by setting up a government to protect the people from the most common threats of the time: invasion by rapacious foreign peoples, and attack by domestic criminals. Rawls’s new contract shields the individual’s right from unjust limitations imposed by the government, and establishes principles of operation to assure every citizen a fair opportunity to seek and hold positions of power, and is assured the basic necessities of a decent life.

Rawls asks us to understand his “original position” concept, not in terms of what he calls the actual historical state of affairs, but as “a purely hypothetical situation characterized so as to lead to a certain conception of justice.” (Rawls, A Theory of Justice, 1971, p12;  A Theory of Justice: Revised Edition, 1999, p11.) Furthermore, he argues that in this hypothetical situation, everyone is in a state of ignorance because they do not know their place in society, their class position, or financial status, and their good or bad fortune in the distribution of natural assets and abilities, such as their intelligence, strength, and so on. Thus, Rawls assumes that, under the special veil of ignorance, “the parties do not know their conceptions of the good or their special psychological propensities.” (Rawls, A Theory of Justice, 1971, p12).

One thing to be remembered is that the hypothetical state proposed by Rawls is just a mental device allowing people to discuss his theory of original position. He asked us to imagine ourselves without any government and to think of what kind of principles we would have to follow to achieve justice in terms of fairness. 

It is similar to the state of nature described by Hobbes, Rousseau and Locke in the theory of social contract because it is, in theory, the condition people were in before entering into the state or society. As Hobbes said, the state of nature never exists in the actual sense and human beings were never actually in the state of nature. Hobbes just wants to describe how people could leave a state of nature by a hypothetical social contract.

So we can review now, asking “What does Rawls mean by “original position?” “What is the connection between this original position and his principles of justice?” Rawls defines the original position as “the most philosophically favored interpretation of this initial choice situation for the purposes of a theory of justice.” (Rawls, A Theory of Justice, 1971, p18;  A Theory of Justice: Revised Edition, 1999, p16.)

According to Rawls, in the hypothetical state, the parties do not know themselves in terms of the concepts of the good and, do not even know their innate tendencies because they are behind a veil of ignorance. Even though people are rational beings and capable of a sense of justice, he specifies that “The principles of justice are chosen behind a veil of ignorance” (Rawls, A Theory of Justice, 1971, p12) and all the contractors have is “a thin concept of the good.”

Here I would like to clarify some more points:

What is the veil of ignorance? Why is it necessary to select the principles of justice in this altered state of mind? What guarantees that the contractors will choose just and fair principles? What are the consequences of using the Rawls’s special way of reasoning called the “Original Position”? What finally “wakes up” the contractors that form the “hypothetical contract?”

The veil of ignorance is a vital element of the Original Position. It insures that all contractors are fair and just. Rawls has us consider that they “don’t know certain kinds of particular facts.”(Rawls, A Theory of Justice, 1971, p137.) The certain kinds of particular facts include most very personal and sometimes private facts, such as,

a). their place in society, their class position or social status;

b). their fortune in the distribution of natural assets and abilities, their intelligence and strength, and the like.

c). their personal conception of the good, the particulars of their rational plan of life, or even the special features of their psychology such as their aversion to risk or liability to optimism or pessimism.

d). the particular circumstances of their own society: They do not know its economic or political situation, or the level of civilization and culture it has been able to achieve.

e). any information about to which generation they belong. (Rawls, A Theory of Justice, 1971, p137;  A Theory of Justice: Revised Edition, 1999, p11.)

The hypothetical contract must be drawn up while the contractors are shielded from self-knowledge because they must operate without self-seeking and without bias. 

The fact that once the principles are agreed to by the contractors, they will apply to all the people, and cannot be revoked, will eliminate the temptation to gamble on biased principles. For example, a person might think, “I don’t know if I’m really in the top 90%, or in the bottom 10% of the people, but I’m going to make life very good for the top 90% at the expense of those at the bottom, because I’ll probably find out that I am in the  larger number of people, the better off people, and thus I’ll live a better life than if I compromised and surrendered some of the top 90%’s wealth to assist the bottom 10%.”

Rawls is sure no “moral and reasonable” person would take such a gamble, because he would realize that if he turned out to actually be in the poorest sector of the economy, his biased rules would keep him there forever, without hope of relief, and unable to lead a “decent” life.  The fact that securing an assured decent existence with the hope of improvement is infinitely better than the risk of loosing all hope forever will deter moral and reasonable people from accepting biased terms in the original position and the hypothetical contract will reflect the best and most reasonable terms for everyone.

Now, we have to define what Rawls means by the consequences of the principles. The principles that people choose in the original position can have two results, just or unjust. But why would reasonable people, limited by the veil of ignorance, tend to choose the just principles rather than unjust ones?

The answer lies in self-interest. The contractors, under the veil of ignorance, know that once the contract is in effect, their plans of life and work will be carried out under the terms the deliberators chose. Thus, in the original position, they would create a society that is just, because people do whatever serves their own interests. When the contractors awaken and the contract is in effect, they want to be sure that they will be free enough and well enough provided for so they can be sure of a decent life, if not an ideal one. The reason why Rawls invented the veil of ignorance in the original position was to assure that the contractors find the best principles possible which are just and fair for everyone in the society, in regard to education, social welfare, job opportunities and so on. Thus, they need the principles that are fair to everyone.

Furthermore, although Rawls realizes the fact that the contractors selecting principles of justice need a limited amount of social information so that they can adjust the veil of ignorance to each characteristic of the social system of cooperation, according to Rawls, the reason why the hypothetical parties tend to choose just principles rather than unjust ones is because they have only the most general facts about their society as a group of people. Thus they are able to make workable and fair judgments they will all be subject to under the circumstances of justice. They know the more general facts about the society, for example, they understand political affairs and the basic principles of economic theory, they know the basis of social organization and the laws of human psychology; this helps them make reasonable choices.

Moreover, in the original position, general social information is admissible because people are seen as rational beings that are capable of having conceptions of goodness and justice, and the veil of ignorance lets deliberators choose without individualistic bias. People’s sense of justice and goodness would be stable when the principles of justice are associated with the basic structure of society that help people acquire the corresponding sense of justice; and the moral lessons from the principles help them develop a desire to behave in regard to the principles.

Rawls declares that people choose the just principles rather than unjust ones because if we believe that humans are social animals, the principles that they establish must be for the favor of everyone in the society. If deliberators disadvantage others, it means that they cannot guarantee that they will not disadvantage themselves, because they and others are in the same boat and are interrelated. As Rawls mentions, “if a group were to decide to band together to the disadvantage of the others, they would not know how to favor themselves in the choice of principles. Even if they could get everyone to agree to their proposal, they would have no assurance that it was to their advantage, since they cannot identify themselves either by name or description.” (Rawls, A Theory of Justice, 1971, p140.)

Based on these considerations, Rawls holds that people will fail to choose unjust principles and will choose just ones instead. Let us look at the issue of saving wealth and or resources for the use of future generations. The veil of ignorance prevents the contractor from knowing which generation he is in, the current generation, or one to come later.  In setting down principles of fairness and justice in the way the country handles its wealth and resources, the temptation may be to place no limits on the depletion of resources during the current generation, and may place no restrictions of the amount of money the nation should borrow during the current generation.  This can appeal to one who is sure he will spend his life in the current generation, and suffer no discomfort, leaving future generations to do without resources and pay off the debts.

But under the Original Condition, there is no guarantee that, once the contract is ratified, the amoral and unreasonable contactor would actually wake up and be in the current generation. He might be arriving in society in fifty or a hundred years hence, and living in a depleted, debt-ridden country without hope of escape.

The probability that a really moral and reasonable person would establish and agree to live under such a system is very low or nonexistent. In this case, people of every generation are deliberating now, even those from future generations.  As Rawls puts it,

Previous generations have saved or they have not; there is nothing the parties can now do to affect that. So in this instance the veil of ignorance fails to secure the desired result. (Rawls, A Theory of Justice, 1971, p140;  A Theory of Justice: Revised Edition, 1999, p121.)

                          

But since we can reasonably include persons from both the current and future generations in our contract deliberations, it would seem unlikely that people who realize they may belong to a future generation would accept principles skewed to the advantage of the current generation.

Therefore, the consequences flowing from a hypothetical contract drawn up in the original position are 1). The principles will be acceptable to everyone, because they are fair, and 2). the society as a whole will benefit because liberty to own property and incentives to build wealth and advance in society are guaranteed to everyone, encouraging enterprise and stability by freeing people to build wealth, and assuring the government of a growing supply of wealth which can be distributed as needed to provide goods and services, with the greatest benefits arranged to help the least advantaged. This is, in fact, the sort of arrangement modern capitalistic states use to ensure economic growth and provide benefits for all the people.

In order to overcome this veil of ignorance and move on to form a society, no matter if it is just, unjust, fair or unfair, the contractors must choose the principles “the consequences of which they are prepared to live with whatever generation they turn out to belong to.” (Rawls, A Theory of Justice, 1971, p137.) Once they have formed the contract and accepted it unconditionally, they “wake up,” and can see how they fit into the new scheme of things. According to Rawls, if they made moral and reasonable choices and set up fair principles, they will be happy, but if they acted in a biased way, they may regret it.  In fact, of course, the contractors are imaginary, and do not really exist, but for the sake of his theory, they will, given the opportunity and operating reasonably, they would be happy, because they arranged things in a fair and just fashion, and were willing to accept the consequences.

In short, Rawls suggests that the veil of ignorance makes a complete harmony or agreement of a particular conception of justice possible through the use of his special limitations of knowledge on the part of the contractors. Moreover, a principle is not a just one if it threatens the advantage of the others, but is just if it represents a genuine reconciliation of interests and stands as the public basis of social cooperation. “If the original position is to yield agreements that are just, the parties must be fairly situated and treated equally as moral persons. The arbitrariness of the world must be corrected for by adjusting the circumstances of the initial contractual situation.” (Rawls, A Theory of Justice, 1971, p141.)

Furthermore, Rawls concludes that people are free in the original position in the sense that they have equal rights in the procedure for choosing principles, making proposals and submitting proposal for others to accept and so on. They are equal in the sense that they have dignity as human beings and as moral persons they have some idea of what goodness is and are capable of having a sense of justice. However, the ignorance of about whom they really are, their place in a society, their innate strength or intelligence and so on, leads them to seek out the principles that could serve their advanced interest.

This implies that in the hypothetical state, we all are equal similarly in terms of sharing the advantages from the outcome of natural chance or the contingency of social chance. Let us recall the following reference, which we have already quoted above; in it, Rawls concludes that for the original position, 

No one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain. For given the circumstances of the original position, the symmetry of everyone’s relations to each other, this initial situation is fair between individuals as moral persons, that is, as rational beings with their own ends and capable, I shall assume, of a sense of justice. The 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. (Rawls, A Theory of Justice, 1971, p12; see also p19.)

Thus, Rawls has developed the original position based on the grounds that everyone makes their own decision on which principles of justice to follow from behind a veil of ignorance. The veil of ignorance makes people blind about the facts about what they are, what they need, and so on. In the original position, the ignorance about their entire personal identity will lead them to establish principles that are fair to all and treat all equally and particularly they will establish the principles which are a kind of the maximin strategy to help those in the least fortunate circumstances.

Rawls believes that if a society is a free one, its people must have widely different point of views about life and how to live ethically and so on. Thus, Rawls proposes a theory of justice for a free society because he thinks, like Kant, that  the theory of justice implies moral principles which he regards as the object of rational choice and people are rational, equal and free beings,

For once we think of moral principles as legislation for a kingdom of ends, it is clear that these principles must not only be acceptable to all but public as well. Finally Kant supposes that this moral legislation is to be agreed to under conditions that characterize men as free and equal rational beings. The description of the original position is an attempt to interpret this conception. (Rawls, “The Kantian Interpretation of Justice as Fairness,” p149, see Kenneth F. Rogerson, ed. Introduction to Ethical Theory. 1991.)

For Rawls, furthermore, a theory that is based on moral foundations that are widely disputed among reasonable people cannot be accepted as a theory of justice. Rawls disagrees with J.S. Mill and utilitarianism in that Mill’s idea about liberalism presupposes that utilitarianism is true, however, according to Rawls, “utilitarianism is disputed by reasonable people and thus cannot be the basis of a theory of justice which aims to justify political institutions to reasonable people.” (Brighouse, Harry. Justice, 2004, p31). Indeed, Rawls suggested that it is reasonable to “think of people as deserving whatever it is justice says they should have, rather than thinking of justice as having to give people what they deserve.” (Brighouse, Harry. Justice, 2004, p33.)

One of the few things communitarians have in common is the opinion that it would be impossible for a person to be impartial under any circumstances.  Thus no one could really live “behind a veil of ignorance” that would hide their own identity, position, cultural background, or gender and allow them to form objective judgments about matters of policy.  They would, these insist, always react in a way that favors their own kind. 

Of course, Rawls would not object to the idea of preserving the cultural identity of a community. However, it is hard to imagine the adherents of this kind of thinking living peacefully in a multiethnic neighborhood or working cooperatively in any kind of mixed work force. If all people are always going to act in a biased way, there seems little point of having philosophical discussions, which claim to be objective. It is hard to take such criticism at face value. How could we have impartial juries if this is true? 

It is seldom possible to state that people will “always” do a certain thing, and it is therefore questionable to believe that reasonable and moral people will always act according to the way their group acts. Living day to day requires that people put aside their group’s biases about gender, race, and ethnicity in order to function in a complex world. Thus it is clear that, with the aid of will power, people do act in ways that run counter to some of their community feelings. 

As for the matter of placing so much faith in “imaginary” people, a true philosopher with a liberal education can be assumed to be familiar with imaginary numbers and thought experiments based on imaginary but useful concepts; that is what Rawls’s original position is, a heuristic device for reaching true conclusions.

Communitarians must also admit that human nature is astoundingly resilience and flexible, and presents us with cases in which valuable understandings and powerful agreements can be reached through everyday thought processes applied in rational ways that reach conclusions that contradict one’s habitual way of thinking and acting. To think that all, or even most, members of any sub-community or minority group are incapable of such free self determination seems to be unjustified.

The role of the original position is to persuade us to accept as unbiased any agreements reached in the hypothetical contract. The agreement it leads to is hypothetical because the people who establish the principles based on consensus about what is just and fair are only imaginary and do not actually exist; still, we would probably agree that the agreement reached is fair, because its principles are sound and moral. It is non-historical because the circumstances of the original position never existed in the ordinary sense of the word in real historical time. Yet it is hypothetically true in a real sense, like a moral tale is “true” even if it is fictional.  In the original position, then, according to Rawls, after people agree on the principles that govern rights, duties, and so on, the principles would regulate the distribution of social and economic advantages across society over a long period.  One must recall that the “natural state” mentioned by Rousseau, Locke and others was also a non-historical but “true” state that served a valid purpose without having ever actually existed.

                     II. 7.       Reflective Equilibrium

Since our judgments are based on the sense of justice and goodness, and the principles of justice as fairness are also based on this justification, which, according to Rawls, is “a matter of the mutual support of many considerations, of everything fitting together into one coherent view.” (Rawls, A Theory of Justice, 1971, p579.) 

Now, we can come to consider the reasons why in the reflective equilibrium, considered judgments are not a peculiar or strange idea in moral philosophy.

Since, according to Rawls, each person possesses a sense of judgment of what is right or wrong, just or unjust, everyone has the capacity to develop this sense of judgment intellectually under normal social circumstances. By facing each circumstance, we are required to exercise the skill and judge things to be just or unjust and also find reasons that support our judgments. Without reasons that support them, our judgments are considered to be invalid or capricious. Of course, the ways we perform the judgments are complicated, and it is not always easy to express our judgments and support them with clear and easily understood reasons.

According to Rawls, it is difficult to define moral philosophy as describing our moral capacity, or as describing our sense of justice (Rawls, A Theory of Justice, 1971, p46), because this kind of description does not refer to a list of judgments provided by institutions that can label as “just” or “unjust” certain actions that we would like to perform. Thus, Rawls proposes instead that what moral theory or philosophy should be is “a formulation of a set of principles which, when conjoined to our beliefs and knowledge of the circumstances, would lead us to make these judgments with their supporting reasons were we to apply these principles conscientiously and intelligently.” (Rawls, A Theory of Justice, 1971, p46.)

This is one of the reasons why moral philosophy has a great influence on our thoughts and actions. Rawls also realizes that our sense of morality is characterized by a sense of justice especially when we make our judgments in everyday life in regard to these principles. Moreover, when the principles are justly and morally applicable, and they offer acceptable and reasonable guidance in the judgments we make in daily life, they can be regarded as part of the valid and sound premises of an argument:

These principles can serve as part of the premises of an argument which arrives at the matching judgments. We do not understand our sense of justice until we know in some systematic way covering a wide range of cases what these principles are. Only a deceptive familiarity with our everyday judgments and our natural readiness to make them could conceal the fact that characterizing our moral capacities is an intricate task. The principles which describe them must be presumed to have a complex structure, and the concepts involved will require serious study. (Rawls, A Theory of Justice, 1971, pp46-7.)

Furthermore, since we are not sure whether the common sense precepts or principles that we are familiar with can provide adequate support to characterize our sense of justice as valid, we cannot have enough reason to assure that. Thus, Rawls argues that, to be correct, our moral capacities should be derived from both principles and theoretical constructions that go beyond the norms and standards that we face in daily life; this probably also requires “fairly sophisticated mathematics as well,” (Rawls, A Theory of Justice, 1971, p47), because the theory of justice is partly based on the theory of rational choice, which involves questions of probability which require mathematical analysis.

By considered judgments, Rawls means, “those judgments in which our moral capacities are most likely to be displayed without distortion.” (Rawls, A Theory of Justice, 1971, p47.)

From this consideration, since there are many kinds of judgments regarding the decisions our judgment tells us to make, and the actions we should perform, Rawls suggests that we may choose some and rejects the others. For instance, we may throw away those judgments that are made with hesitation or little confidence, or those judgments that are made when we are upset or frightened, or when we stand to gain one way or the other (see Rawls, A Theory of Justice, 1971, p47). These kinds of judgments should be avoided because they imply error and they may be partial and arbitrary, and are apt to be influenced by our emotions rather than by reason.

Thus, we can conclude that considered judgments are the judgments that are made in regard to justice and righteousness under favorable conditions. Usually, the sense of justice is regarded as a mental capacity that involves the exercise of thought, and the right judgments should be made under conditions that benefit all: “Considered judgments are simply those rendered under conditions favorable to the exercise of the sense of justice, and therefore in circumstances where the more common excuses and explanations for making a mistake do not obtain.” (Rawls, A Theory of Justice, 1971, pp47-8.)

Rawls reminds us that the principles of justice that we usually talk about in describing our personal sense of justice are different from the principles of justice that are chosen during the hypothetical original position.  The principles we use in daily life and even those based on our own “considered judgments” are much simpler and easy to apply than the principles worked out in the Original Position which are incorporated in the hypothetical contract;

[O]ne might say that justice as fairness is the hypothesis that the principles which would be chosen in the original position are identical with those that match our considered judgments and so these principles describe our sense of justice. But this interpretation is clearly oversimplified. (Rawls, A Theory of Justice (1971), p48, italic added.)

Instead, Rawls suggests, from a moral philosophical view point, the principles of justice are derived from the person’s sense of justice and the person’s sense of justice “not the one which fits his judgments prior to his examining any conception of justice, but rather the one which matches his judgments in reflective equilibrium.” (Rawls, A Theory of Justice, 1971, p48.) The original position is a complex state, and reflective equilibrium is a complex notion because reflective equilibrium characterizes the study of principles of justice that “govern actions shaped by self-examination.” (Rawls, A Theory of Justice, 1971, p48.) Rawls suggests that we should follow the Socratic Method to see if

we may want to change our present considered judgments once their regulative principles are brought to light. And we may want to do this even though these principles are a perfect fit. Knowledge of these principles may suggest further reflections that lead us to revise our judgments. This feature is not peculiar though to moral philosophy, or to the study of other philosophical principles such as those of induction and scientific method. (Rawls, A Theory of Justice, 1971, p49.)

Rawls realizes that different persons might have different interpretations of “reflective equilibrium.” The differences are dependent upon whether we present the interpretation just to describe it in order to see if it matches our existing judgments or whether we present it in a way that describes all possibilities that not only may match our everyday judgments, but also to show how it related to all other relevant philosophical arguments that we might face in reflecting on our most complex judgments and about how the principle deals with all arguments that may arise against it.

From this, there derive two kinds of reflective equilibrium: the first one is derived from the first interpretation; Rawls said, “we would be describing a person’s sense of justice more or less as it is although allowing for the smoothing out of certain irregularities.” The second one is derived from the second kind of interpretation, and once the more comprehensive reflection is examined, “a person’s sense of justice may or may not undergo a radical shift.” (Rawls, A Theory of Justice, 1971, p49.)

Rawls then says, in moral philosophy, the second kind of reflection is what we care for, because in order to justify something we need to consider all possible arguments and produce good reasons to support our position. However, he also realizes that it is not easy to reach to this state, even though we have all possible descriptions and well-sufficient philosophical arguments at our disposal. He suggests we apply ourselves “to study the conceptions of justice known to us through the tradition of moral philosophy and any further ones that occur to us, and then to consider these.” (Rawls, A Theory of Justice, 1971, p49.) This is one of the reasons why, when Rawls argues for “justice as fairness,” he has to compare its principles, the principles of justice, and its arguments, with other similar thoughts.

Therefore, he concludes that, finally,

justice as fairness can be understood as saying that the two principles [of justice]… would be chosen in the original position in preference to other traditional conceptions of justice, for example, those of utility and perfection; and that these principles give a better match with our considered judgments on reflection than these recognized alternatives. Thus justice as fairness moves us closer to the philosophical ideal; it does not, of course, achieve it. (Rawls, A Theory of Justice, 1971, pp49-50.)

Even though it is just a philosophical ideal, it is the kind of philosophical proposal we can profit from, and taking a critical look at it is worth the effort involved. It is useless to ask such questions as, “’Does reflective equilibrium exist?” and “If it exists can equilibrium ever actually be reached?” In fact, Rawls would suggest that we should look at his theory of justice as fairness as an ideal and not as a reality, bearing in mind that it provides the principles which govern “our moral powers, more specifically, our sense of justice.” (Rawls, A Theory of Justice, 1971, p51.) It is ideal; however, it plays a very important role in the rules of method and as a “device used in setting up the general structure of theory.” (Rawls, A Theory of Justice, 1971, p51.)

Thus, Rawls proposes that the two principles of justice are the only reasonable answer to the questions presented by the original position, and his intention is to show to us that the principles are “everyone’s best reply, so to speak, to the corresponding demands of the others. In this sense, the choice of this conception of justice is the unique solution to the problem set by the original position.” (Rawls, A Theory of Justice, 1971, p119.) In order to do this, Rawls argues, we must assume that the hypothetical parties, as rational beings, capable of a sense of justice and caring about the well being of others, have agreed on the two principles as the best way to make everyone feel secure, based mainly on their knowledge, beliefs, and interests.

Just in case our considered judgments are not smooth, and create conflict in some way, we need to adjust our various beliefs until they arrive at the balanced (equilibrium) state. This means that once our considered judgments are smooth, not in conflict with others’ any more, they become stable and they can be the practical and consistent guidance for our actions. Rawls argues also that principles derived through reflective equilibrium give stability, because people in the society agree, accept, and practice them as fair rules for their lives.

Rawls also suggests that the society or institution plays an important role in securing its own stability, and “stability is secured by sufficient motivation of the appropriate kind acquired under just institutions,” (Rawls, A Theory of Justice, 1971, pp142-3), and stability is also based on accepting the concepts that citizens are reasonable and rational, free and equal.

That is why, according to Rawls, reflective equilibrium is a way to determine a set of principles that are rooted in our sense of justice. When reflective equilibrium is not actually in equilibrium, and society is unstable, the system will have to change in regard to the people’s attitudes toward the principles. Both the principles and the attitudes may need to be adjusted in order to reach or reestablish equilibrium.

However, he also says that once a situation is balanced (is in equilibrium) or even stable, there is no guarantee the situation is just or right. Where long standing animosity exits, the situation may be in equilibrium, but it does not mean that there is no hatred or hostility in it, but in fact, it is probably stable because of a balance of hatred and hostility. Also stability may exist because people are given a false estimate of their position, and thus, they “act effectively to preserve it.” (Rawls, A Theory of Justice, 1971, p120.) Moreover, if a situation contains hatred and hostility, we can conclude that “any feasible change will be worse.” Thus, the best way to respond to it is to say that it “may be a condition of lesser injustice rather than of greater good.” (Rawls, A Theory of Justice, 1971, p120.)

Moreover, the situation and its judgment or evaluation are dependent on the circumstances that shape them. It is the same thing in the equilibrium situation, which shows a very strong relationship between the original position and moral philosophy, as Rawls said, “The moral assessment of equilibrium situations depends upon the background circumstances which determine them. It is at this point that the conception of the original position embodies features peculiar to moral theory.” (Rawls, A Theory of Justice, 1971, p120.)

                     II. 8.       Public Reason

In a pluralist society, public reason is very important.  Rawls often refers to the common reason of all citizens. The decisions, plans and actions conducted by the individuals, families, and institutions of a political society are arrived at through reason, whether they involve intellectual or moral reasoning.

Rawls explains that reasoning can be “rational and reasonable.” Reasonable means the person reasoning is ready to “propose principles and standards as fair terms of cooperation and to abide by them willingly, given the assurance that others will likewise do so.” (Rawls, Political Liberalism, p49.) In this sense, the reasonable refers to justifiable. Reasonable thinking regards society as a system of fair cooperation, fair for all because it is reasonable for all to accept it in terms of reciprocity, which implies altruistic and mutual advantages.

Rational, on the other hand, is not the same as the reasonable, and it “applies to a single, unified agent (either individual or corporate person) with the powers of judgment and deliberation in seeking ends and interests peculiarly its own.” (Rawls, Political Liberalism, p50.) The rational person would consider adopting, affirming, and giving priority of these ends and interests that benefit self. Decisions about means and ends are based on what is best for self rather than on altruism and mutual advantages. To “adopt the most effective means to ends, or to select the more probable alternative, other things equal,” (Rawls, Political Liberalism, p50), is rational, but may not be reasonable.

It may seem that the rational person is solely self-interested. According to Rawls, it is not true, because a person has to plan his life, and the rational person knows how to balance between the means and the ends. According to Rawls, moreover, self-interest does not always result in benefits to oneself. As Rawls puts it, “Every interest is an interest of a self (agent), but not every interest benefits the self that has it.” (Rawls, Political Liberalism, p51.) This implies that as a person we have self-interest, but as a rational person one may have all kinds of affections for others, and we have “attachments to our communities and places, including love of country and of nature” (Rawls, Political Liberalism, p51) that are based not only on selfishness, but also on reasonable altruism as well.

What is lacking in the rational person is “the particular form of moral sensibility that underlies the desire to engage in fair cooperation as such, and to do so on terms that others as equals might reasonably be expected to endorse.” (Rawls, Political Liberalism, p51.)

The reasonable individual or group could be lacking moral sensibility too, but Rawls wants to show us that the strictly rational entity lacks the idea of fair cooperation, whereas the reasonable one does not. However, Rawls also shows us that both reasonable and rational thinking are needed and are complementary ideas in regard to fair cooperation in the sense that,

Each is an element in this fundamental idea and each connects with its distinctive moral power, respectively, with the capacity for a sense of justice and the capacity for a conception of the good. They work in tandem to specify the idea of fair terms of cooperation, taking into account the kind of social cooperation in question, the nature of the parties and their standing with respect to one another. (Rawls, Political Liberalism, p52.)

Thus, they need each other because without the rational, the reasonable “would have no ends of their own they wanted to advance by fair cooperation;” and without the reasonable, the rational would lack “a sense of justice and fail to recognize the independent validity of the claims of others.” (Rawls, Political Liberalism, p52.)

Reason can also be categorized as public and nonpublic reason, because according to Rawls, not all reasons are public, and e.g. the reasoning of churches, universities, and some other associations in civil society may be nonpublic. Here Rawls is influenced by Kant, who characterizes reasons as public and private ones in his article, What is Enlightenment? (1784), though the Rawls’s concept of reasons in Political Liberalism are not completely the same to Kant’s.

So now we can ask, what is public reason? And what kind of reason is considered nonpublic?

Rawls argues that public reason is the basic trait of people in a democratic regime because it is “the reason of its citizens, of those sharing the status of equal citizenship.” (Rawls, Political Liberalism, p213.) Rawls mentions that public reason is possible in the democratic regime, where people are equal, because “public reason is the reason of equal citizens who, as a collective body, exercise final political and coercive power over one another in enacting laws and in amending their constitution.” (Rawls, Political Liberalism, p214.)

Moreover, the purpose of this public reason is for the good of the public, because the political conception of justice requires two sorts of reason; the first is more general, “of society’s basic structure of institutions,” and the second is more specific, “of the purpose and ends [basic goals] institutions are to serve.” (Rawls, Political Liberalism, p213.)

Rawls maintains that public reason in a democracy is public for three reasons: First, it is public because is done by the public and “it is the reason of the public.” (Rawls, Political Liberalism, p213.)  Second, public reason is public is because its subject or purpose is to serve the good of all, the public, in matters of fundamental justice. The third way reason is public is due to the essence of it: “its nature and content is public,” (Rawls, Political Liberalism, p213) in the sense that this reason is the result of the ideals and principles of justice as fairness shared by all citizens in the society, and it is practiced publicly on this basis.

Ideally, in Rawls’s society, the citizens accept and honor this public reason because it is just and fair, not because it is a matter of law.

Nonpublic reason is peculiar to people and institutions operating within their own frame of reference.  There are various nonpublic reasons in a diverse population, whereas there is only one public reason.

Nonpublic reason, for instance, is the reasoning found in aristocratic and autocratic regimes.[1] If the regimes care for the good of the society, this is not the result of reasoning on the part of the public (the citizens), but it is done by the rulers.  Whether the rulers are good or bad is not the result of the thinking of the whole population, so it is not public reason, though it does often relate to the way the government treats the public. The people living under these regimes are not considered as equal and free and their basic rights and freedoms are limited. If such a society and its members are lucky, they have good rulers who care for the welfare of all. On the contrary, if they are not fortunate and they have bad rulers who care only about their own group(s), and not the good of society at large, it is simply a result of the aristocratic or autocratic form of government. Because the thinking of the public at large (public reason) is not a part of the aristocratic form of government, the problems may remain until a new form of government develops.

Any kind of reason that is not common to all is what Rawls calls nonpublic reason. Nonpublic reason is the reason that is contributed to by some people who are in power or who take charge of an institution or society. The decisions they make are based on nonpublic reason. Even when they apply to the public, they remain nonpublic, for the public has no part in the reasoning leading to decisions.

In many cases related to associations such as churches and universities, scientific societies and professional groups, both public reason and nonpublic reason are seen. They exercise nonpublic reason when considering matters related to the internal functioning of the associations. They may act reasonably and responsively, whether they are corporate bodies, or associations of individuals, when they act only in regard to their members. Yet they also practice public reason “with respect to political society and to citizens generally” (Rawls, Political Liberalism, p220) by being responsive to the attitudes of the public and making decisions that affect the public.

In the case of a charitable institution, for example, the association regulates its membership and manages its budget using nonpublic reasoning, but its budget reflects the needs and attitudes of the public also, so where matters of distribution of goods and services are concerned, the reasoning of the charity is public. Religious associations, and particular philosophical and professional organizations, and other entities involved in the welfare of the public, may thus employ nonpublic reason in this sense for the good of the public because its reason for being may be to provide for the good of the people in general. Rawls argues that we have learned from experience that, in a democratic society, the nonpublic power, such as that wielded by

the authority of churches over their members, is freely accepted. In the case of ecclesiastical power, since apostasy and heresy are not legal offenses, those who are no longer able to recognize a church’s authority may cease being members without running afoul of state power.  (Rawls, Political Liberalism, p221.)

One can then voluntarily join or leave nonpublic organizations, saying “whatever comprehensive religious, philosophical, or moral views we hold are also freely accepted, politically speaking; for given liberty of conscience and freedom of thought, we impose any such doctrine on ourselves.” (Rawls, Political Liberalism, p222.) He means that as free and equal citizens we exercise our freedom and rights within the basic constitutional rights and liberties when we join or leave a non-public group.

Moreover, nonpublic reason impacts on the public reason of civil society and belongs to what Rawls calls the ‘background culture,’ in contrast with the public political culture. (Rawls, Political Liberalism, p220.) These kinds of nonpublic reasons imply social, not private, interests, though it seems that the term “nonpublic” is normally equivalent to “private.”

In a liberal democracy, is there anything like private reasoning?

Rawls denies private reason.  For him, there is no such thing. All reasoning is either public or nonpublic. Of course, he acknowledges that there are other forms of reason that we participate in and they allow us to exercise and enjoy our rights as equal citizens.

 Rawls says “the many reasons of associations in society which make up the background culture,” and domestic reason, “the reason of families as small groups in society,” (Rawls, Political Liberalism, on footnote p220), are opposite to public reason.

Rawls also mentions limitations of the public reason imposed to secure political stability. His argument laying out the limits of public reason has been debated and remains controversial, but it is significant. As mentioned above, in a democratic society, “public reason is the reason of equal citizens who, as a collective body, exercise final political and coercive power over one another in enacting laws and in amending their constitution.” (See Rawls, Political Liberalism: 214). Thus, he proposes two kinds of limitations imposed by public reason to be features of public reason. First of all, the public reason limits itself by not applying to “all political questions,” but only applying to “those involving what we may call ‘constitutional essentials’ and questions of basic justice.” (Rawls, Political Liberalism, p214.)

For instance, public reason is concerned with the fundamental questions, such as problems of voting, freedom of religion, and fair equality of opportunity: “who has the right to vote, or what religions are to be tolerated, or who is to be assured fair equality of opportunity, or to hold property,” (Rawls, Political Liberalism, p214), and the like. Public reason must not be confined to strictly fundamental matters, but may apply to things such as “tax legislation and many laws regulating property; statutes protecting the environment and controlling pollution; establishing national parks and preserving wilderness areas and animals and plant species; and laying aside funds for museums and the arts.” (Rawls, Political Liberalism, p214.)

Moreover, the public reason does not apply “to our personal deliberations and reflections about political questions, or to the reasoning about them by members of associations such as churches and universities, all of which form a vital part of the background culture.” (Rawls, Political Liberalism, p215.) However, one might argue that it is not possible to ignore the religious, philosophical, or moral considerations apart from political decisions when citizens make up their minds about principles that will govern their lives.

Of course, Rawls acknowledges that the religious, philosophical, and moral considerations also play important roles because they are characteristic parts of people’s self-understanding which affects their decisions and actions. Yet, public reason should and must go beyond these considerations to avoid civil conflict in the society. Public reason must incorporate the ideal of fairness, regardless of any religious beliefs, philosophical tendencies, and so on. Thus, its basic concern is the fair terms of social cooperation in the matters of basic justice, as mentioned.

                     II. 9.       Overlapping Consensus

In 1993, John Rawls published Political Liberalism.  After A Theory of Justice, he was concerned that liberal democracies were sometimes shaken by groups within them that did not accept the conventions that made up an unwritten consensus and kept relations between rival churches, philosophical systems, political parties, ethnic groups, and so on relatively peaceful and allowed life to proceed in a smooth and orderly fashion. 

In his 1993 book, then, Rawls tried to establish a second original position. This time, instead of having individuals as his imaginary deliberators, he had  groups that, behind their veil of ignorance, would use their sense of fairness and the good to establish the essential (“constitutional” class) principles free from their own identity and ignorant of their own religious, philosophical, political or ethnic affiliations or leanings, trying to establish the principles such as religious and ethnic tolerance, fairness and equality of opportunity, and so forth that could be valued and endorsed on the basis on reason alone. Every sub-group in the population could live in freedom and its rights would be secure. The kind of principles that the veiled groups would agree to could be written into a constitutional document, to give it the force of law, and later, as people became used to it, they could form a more elaborate unwritten and tacit code of action based on the positive experiences the groups had once they were back from their hypothetical deliberations. The feeling everyone had about how individuals and groups should act in a liberal democracy formed what Rawls termed an overlapping consensus or agreement to honor certain ways of acting toward one another so that friction would be reduced and everyone could enjoy their daily lives.

Overlapping Consensus, then, is Rawls’s term meaning the kind of agreement, based on “public reason,” that describes a kind of overall understanding among the citizens of a liberal democracy whereby diverse groups such as various religions, political parties, philosophical groups, and other kinds of minority groups can accept a general system of belief acceptable to all and protective of all, without having to have it based on one or many “comprehensive doctrines” such as Islam, Christianity, Marxism, and other systems that adherents accept as the basis for  their personal concepts and values.

Rawls understands that in creating a just society, where several groups of believers exist holding very different views of the world based on (rival) religious or ideological faiths, (what he called comprehensive doctrines), care must be taken to set things up so that these groups, and people who do not belong to such groups, are all able to live peacefully together without fear.

Sinn Fein, the Catholic party in Northern Ireland, for example, adheres to their religion as a “comprehensive doctrine,” as do their rivals, the Protestants of the Democratic Unionist Party. 

Recently Gerry Adams, the Sinn Fein leader accused of being a one-time commander of the terrorist I-R-A, or Irish Republican Army, met with his long-time adversary, Ian Paisley, leader of the Democratic Unionist Party, to sign an agreement to abide by rules of equality and tolerance, and give up armed struggle as a political tool. This may or may not bring lasting peace to Northern Ireland, but it serves as an excellent current example of the way rival and contentious groups with opposing comprehensive doctrines in a more or less liberal, more or less democratic society can come to an overlapping consensus to establish peace and equality where there had an absence of both for over a hundred years. Rather than base their agreement of the teachings of their deeply divided religions, the parties based their agreement on moral principles arrived at through the use of human reason alone. The agreement will be a quasi-constitutional document, and will allow for the members of both groups to associate and cooperate with one another enough that gradually a certain amount of mutual trust and even understanding may develop, which will allow the parties to work out unwritten ways of acting which will move the parties from a formal legal relationship to a more comprehensive and informal way of co-existing, for the benefit of both, based on unchanging moral principles and the common need of human beings to live together in peace and harmony.

For a liberal democratic society with a reasonable kind of diversity among it constituent ethnic, religious, racial, or political and philosophical groups, to function, all parties must form an overlapping consensus about the need for tolerance, fair opportunity, equality under the law, and so on. People must be able, according to Rawls, to set aside their contradictory religious notions to accept, on reason alone, the necessity and value of such political unity and the virtues of tolerance and respect for others’ views that guarantee on-going equality of treatment and mutual respect based on reason and good moral principles. Constitutional provisions for freedom of assembly, speech, conscience, religion, and so on can only provide a framework of law to bring about peace within a society. It takes an overlapping consensus to actually assure that rivalries do not cause intolerance and even armed conflict to develop within the country itself.  Such a consensus will provide elders and opinion-makers with the means of controlling their more radical or unruly followers.

As used here, overlapping consensus means an agreement between most or all parties, including individuals and groups, to abide by written, but mostly unwritten rules in order to enjoy the liberties they can claim by virtue of being human.  While their particular religious faith or political doctrines or philosophical positions are “comprehensive” in regard to the way people behave within their special group, the individuals and especially the leaders of each group must have an overlapping sense of the good and a concept of fairness. This consensus is needed in order for a liberal democracy to be stable and function in the complex modern world. 

Where there is agreement between the competing groups about how they should be governed, and it is outside the boundaries of the group’s internal consensus about their own doctrines and practices, it is possible that communities of Christians and Muslims, for example, or even Jews and Muslims, can agree to terms which can result in tolerance and stability.

Everyday consensus exists in many places where ancient enmities exist.  For example, in parts of the world where violence is frequent, people still abide by the basic traffic rules for cities and highways.  This way, everyone of any faith or party knows that in their country, everyone must drive on the left side of the road, for example. This has nothing to do with faith, but is very important in everyday affairs, allowing traffic of every kind to move in an orderly fashion.

Overlapping consensus will be studied under three aspects in a moment, but first, we must qualify our statements by saying that it applies only in a “free” liberal democracy, or at least in a “decent” country, where people are free to speak their minds without fear of retribution or conflict on matters of common interest.

This is very significant in a country populated by peoples who are members of various groups that are distinguished from one another by culture, race, religious or ideological beliefs, and so on. Rawls realizes that to be fair and rational, government institutions in such a pluralistic and diversified country must treat all impartially.  Guarantees and provisions for members of each group to enjoy liberty, justice and equality, as a group and as individuals, must be firm and constant so citizens can exercise their civil rights and enjoy their freedoms while maintaining their group identity. Rawls sees this kind of arrangement as essential in a fair, just, and reasonable society.  It must be unlimited in durations and must be legitimized by the laws of the government and based on the power of human reason without reference to the specific religious or political beliefs of one or another of the “comprehensive” belief systems that are peculiar to one or more of the groups in the population.

(i) Rawls distinguishes rational pluralism from pluralism by noting that pluralism itself allows for the simultaneous presence of competing and even hostile and intransigent beliefs and policies that effectively make coexistence with other groups impossible. For example, when two theocratic political systems both have as their core value the destruction of the other, it is not possible to reach reasonable accommodations in which they can live side by side.

This leads Rawls to acknowledge that his model of a liberal democratic pluralist country can accommodate only a reasonable and rational pluralism, where the various groups are ready to make adjustments to their personal or group thinking so that, at least in the context of the overarching Rawlsian pattern, they can coexist fairly and successfully.

Peoples living in the Rawlsian society would be fortunate, for the Rawlsian institutions would care for their happiness, freedom, justice and equality, and the like equitably. The overlapping consensus theoretically exists where there is justice and equality under the conditions of freedom: Overlapping consensus, then, is “the outcome of the free exercise of free human reason under conditions of liberty.” (Rawls, Political Liberalism, p144.)

(ii) The overlapping consensus must be expressed in the fundamental political documents (in the constitution, or on the “constitutional level”) of the country (assuming it is a constitutional democracy) in such a way that it is based solely on human reason and stands alone, independent, without relying on any religious or ideological “comprehensive system” for its credibility.

Religious, philosophical, and moral doctrines, however sacred they may be, must, as far as possible, be left out of the wording of the essential constitutional documents so that all reasonable people can accept them as reasonable and obvious rules of government or rules of behavior. Such principles, arrived at through the reasoning process accessible to all human beings, are valid universally, and set standards of conduct equally for every citizen and every group in the society.

Rawls sums this up by saying, “the political conception is a module, an essential constituent part, that in different ways fits and can be supported by various reasonable comprehensive doctrines that endure in the society regulated by it.” (Rawls, Political Liberalism, pp144-5.)

iii). Attempting to be realistic in regard to the difficulty of establishing a general overlapping consensus among advocates of competing religious and ideological groups, Rawls anticipates four objections to his reason-based system, and tries to answer them satisfactorily.

Objection 1: How shall people and groups of people live in a reason-based system of basic principles? Is the consensus a mere modus vivendi or stop-gap arrangement, like a truce on the battlefield?

Rawls rejects this suggestion that trivializes the “overlapping consensus” concept as merely a temporary “modus vivendi” because the need for a stable and smoothly functioning government is easily grasped by reason, and as such, it is not just a temporary solution to a temporal problem, but an agreement based on basic, reasonable understanding of the on-going need to live in peace and harmony. A modus vivendi is forced upon two or more nations by the constraints of the moment.  For example, if a plague breaks out, two warring nations may agree to stop the war while the plague rages. When it abates in either country, there might be the temptation to seize the advantage and renew the fighting while the other nation is still distressed by the plague. Because the overlapping consensus is based on reason, and founded on moral principles, it is timeless, and not subject to unfair maneuvers on the part of this or that group. All parties realize that for continued prosperity, all must abide by the rules of the consensus.

2. Rawls understands that critics might argue that even though the overlapping consensus seems to be stable, it is still unacceptable with regard to achieving political unity in overlapping consensus. The reason why it is still liable to be rejected is because the idea of political unity “abandons the hope of political community and settles instead for a public understanding that is at bottom a mere modus vivendi.”

 Rawls’s reply to this criticism is that unless common ground can be established on the basis of reason alone, we must abandon hope of establishing a cohesive political community, because if one faction of the community insists on imposing its own comprehensive doctrine on all, reasonable pluralism must be abandoned and the oppressive use of the state power to enforce the official system must be accepted.  This would not be allowed in a Rawlsian system of justice.

Rawls realizes that the values of community have a very important impact on the moral quality of the society and public life of the communities within it.  He maintains that a liberal democracy is “an association or society whose unity rests on a comprehensive conception of the good.” (Rawls, Political Liberalism, footnote on p146.) Thus, if a community cares for good things enjoyed equally and justly for everyone in it, the values of the community are acceptable.

On the other hand, a sub-community that refuses to take its place inside a larger political system and insists on setting rules for other groups is unreasonable and incompatible with the establishment of overlapping consensus.

Rawls insists that the overall community cannot establish political unity founded on the overlapping consensus unless it is basically liberal and fair. While respecting the value a politically oriented sub group may provide to its members or to society as a whole, Rawls rejects the plans of groups that insist on imposing their political system on others.  He continues to work toward the reason-based overlapping consensus acceptable to all factions and individuals because it is “essential and realizable. . . .first in the various associations that carry on their life within the framework of the basic structure, and second in those associations that extend across the boundaries of political societies, such as churches and scientific societies.” (Rawls, Political Liberalism, footnote on p146.)

Thus, the idea of political unity founded on overlapping consensus does not imply the establishment of a monolithic political community such as the one-party systems in pseudo democracies.

Going back to Rawls’s second Original Position as described in his 1993 book, Political Liberalism, when in the process of forming an overlapping consensus, the parties operate ignorant of their own interests and must be fair because reason tells them to, since bias may result in serious trouble if they tilt the results to a group to which they do not belong. By using the veil of ignorance, Rawls can assume that each group, like the individuals in his 1971 original system, will wisely refrain from gambling on a biased system which may ultimately cause them serious trouble.  Agreements formed under Rawls’s special heuristic device are designed to be less self serving and more timeless than the modus vivendi agreements between states which are necessitated by temporary circumstances, such as a plague, as described above.

The modus vivendi is a temporal, contingent political object, while the overlapping consensus is a reasonable agreement clearly of benefit to all, having the stature of a constitutional level law, and, because it deals with what is right and wrong, it is essentially a moral document.

3. A third aspect of the overlapping consensus is its stability, which is also mentioned above.  While the modus vivendi of two nations is based on contingencies, the moral principles of the Rawlsian agreement are timeless and therefore stable.

Some critics claimed that because he insists on basing his moral consensus on reason alone, and not religious principles, Rawls and his system are skeptical of the value of religion, and his system is godless.

But is this true?  Is Rawls a hopeless skeptic, cynical about the religious truths that are the basis for moral conduct in religious subgroups?  Is his system deliberately indifferent to the feelings of those who are asked to surrender their faith-based assumptions about right and wrong?  Is Rawls denying the value of good works which allow the believers in most faiths to build up eternal capital through righteous living on earth in order to collect on one’s meritorious investment in the afterlife?

Rawls answers that it would be foolhardy to allow overlapping consensus to conflict with truth, since it would put human reason, which is a gift, in opposition to truth, and would make him and his system outlaws in the eyes of so many believers in various comprehensive doctrines. On the other hand, if he were to assign one a higher value than another, he would be destroying the whole system, which attempts to bring everyone together in workable arrangements based on something everyone shares, the power of reason. 

Rawls and his system are not skeptical, but both must be unbiased and remain neutral with reference to the beauty and value of one culture compared to another because to declare one the “winner” in a value contest, is to declare all the others “losers,” which would assure the failure of the effort to bring all parties together to accomplish things that are impossible to any fragment of the society to accomplish, no matter how venerable or populous it may be.

Moreover, Rawls says that the principles of tolerance and equality are necessary and should be applied in the cases of conflicts among citizens’ comprehensive views:

To apply the principles of toleration to philosophy itself is to leave to citizens themselves to settle the questions of religion, philosophy, and morals in accordance with views they freely affirm.” (Rawls, Political Liberalism, p154.)

Rawls must repeatedly go back to the principle of tolerance because people adopt and cling to their moral, religious, and political views both as individuals and as members of their group, and they have strong emotional ties to these interconnected systems of thought and behavior. Anything that diminishes any of these deeply cherished values is hurtful and intolerable; therefore as a philosopher and proponent of peace and justice, he is in a very important position, where any word that offends one group or promotes another is taken very seriously. In order to achieve his ambitious goals of peace, harmony, and cooperation, understanding and tolerance must characterize everything he does.  Actions speak louder than words, especially for someone in his unique situation.

The third objection is related to the idea that supposing an overlapping consensus is not a modus vivendi, then one argues that “a workable political conception must be general and comprehensive…It is useless, …, to try to work out a political conception of justice expressly for the basic structure apart from any comprehensive doctrine.” (Rawls, Political Liberalism, p154.)

Rawls replies to this objection that a political conception need not be comprehensive. As Rawls has partly replied in the third view of the model case of the overlapping consensus, this objection is a pluralist view and is not systematically unified in the sense that “besides the political values formulated by a freestanding political conception of justice, it includes a large family of nonpolitical values.” (Rawls, Political Liberalism, p155.)

Moreover, Rawls replies that since the citizens are guaranteed security with regard to their basic rights and liberty by the fair constitutional-level laws of the liberal society, they can pursue their way of life in a fair way while respecting the values of others. “With those constitutional guarantees secure, they think no conflict of values is likely to arise that justifies their opposing the political conception as a whole, or on such fundamental matters as liberty of conscience, or equal political liberties, or basic civil rights.” (Rawls, Political Liberalism, p155.)

Thus, when a political conception cares for its citizens’ basic freedom and rights, it can help reach the political agreement at least on “the constitutional essentials and the basic questions of justice.”

For Rawls, liberty is the most reasonable political conception of justice for a democratic regime, in the sense that “it protects the familiar basic rights and assigns them a special priority; it also includes measures to insure that all citizens have sufficient material means to make effective use of those basic rights. Faced with the fact of reasonable pluralism, a liberal view removes from the political agenda the most divisive issues, serious contention about which [would] undermine the bases of social cooperation.” (Rawls, Political Liberalism, pp156-7.)

Rawls pointed out that political values usually supersede other values. “[T]he . . . reason political values normally win out is that severe conflicts with other values are much reduced,” (Rawls, Political Liberalism, p157), in the sense that when an overlapping consensus supports the political conception, the political conception supports and protects other basic values such as religious, philosophical, and moral freedoms and other strongly held and highly valued values. Further, Rawls suggests that it is useless to talk about “the claims of political justice against the claims of this or that comprehensive view; nor need we say that political values are intrinsically more important than other values and that is why the latter are overridden. Having to say that is just what we hope to avoid, and achieving an overlapping consensus enables us to do so.” (Rawls, Political Liberalism, p157.)

Thus, we can properly conclude that a political conception need not be comprehensive; and when using public reason to establish a reasonable pluralism, we do not need to rely on general and comprehensive doctrines. Rawls has given us two reasons for avoiding reliance on general and comprehensive doctrines: first, the reasonable pluralism “identifies the fundamental role of political values in expressing the terms of fair social cooperation consistent with mutual respect between citizens regarded as free and equal;” and second, it provides “a sufficiently inclusive concordant fit among political and other values seen in a reasonable overlapping consensus.” (Rawls, Political Liberalism, p158.)

4. The fourth objection declares “the idea of overlapping consensus is Utopian” in the sense that “there are not sufficient political, social, or psychological forces either to bring about an overlapping consensus (when one does not exist), or to render one stable (should one exist).” (Rawls, Political Liberalism, p158.)

Rawls replies that an overlapping consensus develops in two stages: The first stage ends with a constitutional consensus, and the other stage ends with an overlapping consensus.

The first stage is when the agreement to live in peace is formulated at the constitutional level with a formal agreement, such as the one recently signed by Sinn Fein and the Democratic Unity Party in Northern Ireland.  In this stage, constitutional, Rawls concludes that “the liberal principles of justice, initially accepted reluctantly as a modus vivendi and adopted into a constitution, tend to shift citizens’ comprehensive doctrines so that they at least accept the principles of a liberal constitution. These principles guarantee certain basic political rights and liberties and establish democratic procedures for moderating the political rivalry, and for determining issues of social policy.” (Rawls, Political Liberalism, p163.)

In the second stage an overlapping consensus evolves. This stage is derived from the first stage when “a constitutional consensus on certain principles of basic political rights and liberties and on democratic procedures becomes an overlapping consensus.”

Once the parties have enjoyed the freedom that the constitutional-level protections provide, and peace had become a continuing condition, parties begin to re-think some of their prior convictions and adjust their comprehensive assumptions based on their new and more secure status.

In this stage, Rawls says, we should consider the depth and breadth of the overlapping consensus. He maintains that the depth of an overlapping consensus requires that “its political principles and ideals be founded on a political conception of justice that uses fundamental ideas of society and person as illustrated by justice as fairness,” whereas its breadth “goes beyond political principles instituting democratic procedures to include principles covering the basic structure as a whole.” (Rawls, Political Liberalism, p164.)

As the depth and breadth of the consensus develop, the political principles of justice as fairness also create certain substantive rights, such as liberty of conscience, freedom of thought, fair equal opportunity, and principles covering certain essential needs.

Thus, the overlapping consensus centers mainly on the concept of justice in terms of fairness, which he calls the standard example. The reason is that when a society is created based on the consensus of the people, there is no doubt that justice as fairness is there with the consensus: “In a political society with a consensus of this kind, several conceptions of justice will be political rivals and no doubt favored by different interests and political strata. When overlapping consensus is characterized this way, the role of justice as fairness will have a special place within conceptions defining the focus of the consensus.” (Rawls, Political Liberalism, p164.)

Thus, according to Rawls, this is his reply to the objection that says overlapping consensus is Utopian. Moreover, as he clearly mentions, as “overlapping consensus is not a modus vivendi,” in the sense that the political conception founded on the overlapping consensus “is affirmed as a moral conception and citizens are ready to act from it on moral grounds,” which means that it is based on unchanging principles rather than temporal contingencies.

In addition to this, as mentioned above, Rawls argues for the two basic ideas which insure the stability of political liberalism based on public reason.  “[F]undamental political questions can be settled by the appeal to political values expressed by the political conception endorsed by the overlapping consensus.” (Rawls, Political Liberalism, p169.)

The first is that “the values of the political are very great values and not easily overridden;” and second, “that there are many reasonable comprehensive doctrines that understand the wider realm of values to be congruent with, or supportive of, or else not in conflict with, political values as these are specified by a political conception of justice for a democratic regime.” (Rawls, Political Liberalism, pp168-9.)

The concept of overlapping consensus is, then, a practical concept, free from elements that foster contention, respectful of and protective of the comprehensive doctrines that are deeply loved and highly valued by various factions of society, and is, unlike some Utopian scheme, attainable in two distinct stages, which can be seen in operation in current history.

One might hope that someday it can develop in all the lands where unreasonable factionalism and internal strife exist today.

                  II. 10.       Summary

Rawls sees his justice as fairness as the fundamental basis of a just society.  It embodies his two principles: the first is the Liberty Principle, and the second principle consists of two parts the Difference Principle, and the Fair Opportunity Principle. The principles are governed by the priority rule and can be summarized as: “All social primary goods, such as Liberty and opportunity, income and wealth, and the bases of self-respect, are to be distributed equally, unless an unequal distribution of any or all of these goods is to the advantage of the least well-off.”

The principles are considered as morally just for any parties because moral and reasonable rational beings would choose the rules from a hypothetical starting point called “original position,” without being swayed by bias and where they are freed from self-interest, preference or any attachments by the condition he calls the “veil of ignorance.”

Reflective equilibrium is a state of balance that exists when basic principles of justice and the practices arranged in the hypothetical contract are congruent and compatible with a person’s considered judgments and deepest moral convictions.  Rawls tends to use the phrase “reflective equilibrium” as a kind of adjective meaning “valid and acceptable” or “justified and fair” when describing a principle or set of principles a nation or a people accept and live by. 

In his theory, the Original Position includes the social contract or “hypothetical contract” drawn up and agreed upon by his imaginary deliberators working under their veil of ignorance and arriving at the basic understandings that include his two principles, the Liberty Principle and the Difference Principle.  Details, he explains, must be worked out so that differences between what the “contract” says and the deepest, soundly reasoned, “reflections” must be “smoothed out.”  He explains that it is a two-way process, allowing for possible clarifications or adjustments to the contract, and adjustments the person must make within himself or herself in order that the contract and the individual’s “considered judgments” are congruent and compatible.

Rawls suggests that the way the principles are applied might be adjusted as far as possible, and then any remaining issues could be worked out by readjusting the one’s own principles. The process of these back and forth “reflections” on applications and principles goes on until they finally reach a state where there is “equilibrium,” which implies no further adjustments have to be made. The method of reflective equilibrium ends up defining a realistic and stable social order by determining a practical and coherent set of principles that are properly grounded on citizens’ inherent moral motivation; leaving the people disposed to conform to them. Reflective equilibrium provides flexibility in the contract between the government and the governed, and it changes as the individuals encounter new individual issues or experience negative consequences resulting from their old principles applied to new conditions. Reflective equilibrium is a mechanism that promises to provide continuity and stability over time.

Rawls divides reasoning into reasonable reasoning and rational reasoning.  When a person reasons reasonably, he is willing to offer ideas, listen to ideas, and abide by compromises that work for the benefit of all.  When a person reasons rationally, he is thinking of ways to gain an advantage, either for himself or for someone else. Rawls says both kinds of reasoning are necessary and complimentary, and can be carried out by individuals or corporate bodies like organizations, churches.

He further divided reason into public and non-public reasoning, and claims that there is no really private reasoning.

Public reason has three qualities: 1). It is the reasoning of the people at large. 2). It is the reasoning about the populace. 3). It is practiced and expressed openly in public. Non-public reasoning is not done by the public, it does or does not focus on the behavior or condition of the public, and it is not necessarily on the public record.

Governments may be based on public reason, as in a democracy, where the populace debate issues and elects its representatives in open and public view.  In an aristocracy, the ruler and important functionaries rule the public, and then they make decisions affecting the public, but the reasoning behind decisions is not done by the public, is not generally responsive to the public, and is not displayed to the public, so it is non-public reason.  It is a matter of luck whether the reasoning is benign or tyrannical.

In many institutions such as religions, fraternal organizations, charities, and so on, both public and non-public reason operate. In a charity providing health services, the directors and even the entire membership has to regulate itself internally with budgets, appointments to various positions, and general inside operations by a form of non-public reasoning because it is not accomplished by the entire population, does not relate to the general population, and is not done in public. When making decisions regarding the public welfare, such as how to fund research into public health, or which hospitals to endorse, the focus is on the public, and the decisions will be publicized and open to public review.

The organization may even seek public input and suggestions, and in these ways the charity is using public reason. Many non-public universities and professional organizations, churches and so on make important declarations, publish important articles and books, and otherwise deal with the public good and contribute influence the functions of society.  Their deliberations and work form a vital part of what Rawls called the “background culture” and cannot easily be deemed either public or non-public reason. Rawls’s focus on liberal democracies implies that public reason is of equal or greater value than non-public reason.

By nature, a liberal democracy usually includes a number of sub-communities representing followers of various comprehensive doctrines, such as members of religions, political parties, philosophical or scientific organizations, and so on.  Rawls concluded that his original position of 1971 should be expanded into a new original position where representatives of each such sub-community would formulate a set of rules and principles while under the veil of ignorance that would provide all reasonable people and reasonable groups constitutional-level guarantees of freedom and equality.  He insisted that the new system must provide for construction of a new “overlapping consensus” based only on public reason because to base it on any comprehensive doctrine would create chaos.  In Rawls’s term, overlapping consensus refers to an agreement between most or all reasonable parties, including individuals and groups, by which they will abide by written and unwritten rules in order to enjoy fully the liberty and equality due to all human beings. It is based on timeless moral principles and would be long-lived rather than temporary.  It would be established in two historically attainable stages, first based on law, and later on unwritten understandings developed as tolerance and equality become habitual. Though limited in application to liberal democracies and “decent” peoples, it can serve as an ultimate goal for developing societies all over the world.

Thus, his theory of justice as fairness and its principles are very attractive. They seem reasonable and appropriate because they assure people’s fundamental liberties and at the same time maximize the assistance given to the most unfortunate ones. The theory seems to offer ways of fulfilling the basic needs of all citizens in a society as much as possible, allowing them to enjoy their basic liberties without infringing on others’ liberties, and without distractions from economic factors.

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[1] Aristocracy (Greek aristos, “best”; kratos, “power”), form of government in which the sovereign power is vested in a small number of citizens who are theoretically the best qualified to rule, as opposed to monarchy, in which the supreme authority is vested in one person, and to democracy, in which the ultimate authority is exercised by the entire body of citizens or their representatives. In an aristocracy, although the power of government is wielded by a few, theoretically the administration of government is carried on for the welfare of the many. Whenever the interests of the people as a whole are made subservient to the selfish interests of the rulers, aristocracy becomes a form of government known as oligarchy. (Microsoft Encarta Reference Library 2004.)

Autocracy, in a country or state, is a form of government ruled by a single person with having unlimited power.

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