Rawls, A Theory of Justice, Chapter 21. Formal Justice

Rawls, A Theory of Justice, Chapter 2

1. Formal Justice

We can understand social institutions as defined by systems of rules. The social institution exists while those rules are publicly acknowledged, and people are regarded as occupying the social positions defined by those rules, and perform the actions defined by the rules (p.55). (It is assumed then that these rules are public, p.56.)

We should note the distinction between the constitutive rules of an institution and the strategies and maxims for how best to take advantage of the rules (p.56). Certainly, in designing the rules, we should take account of how people are likely to act once those rules are in place (p.57).

Now we may introduce a notion of 'formal justice' (p.58). This is a matter of the (constitutive) rules being followed conscientiously, and enforced impartially and consistently. This is obviously compatible with injustice, if the rules themselve are unjust. But along with the publicity of the rules, it at least enables everyone to know where they are and what they can expect (p.59). (Rawls mentions the view that formal justice is unlikely to obtain in a grossly unjust society, p.60.) In fact, formal justice or 'justice as regularity' is at least one component of the idea of the 'rule of law' which we will be examining later.

2. Rawls's Two Principles

The two principles (p.60). The two principles regulate the distribution of different goods: the first principle regulates the distribution of fundamental rights or liberties; the second principle has two clauses: the second clause regulates the distribution of social positions and offices (jobs, etc.); the first clause regulates social and economic inequalities more generally, including, most importantly, income and wealth, though also including diferences in authority or responsibility, or chains of command (p.61). These principles are lexically ordered.

The general conception (p.62). This just requires that the distribution of 'social values', here listed as including liberty, opportunity, income and wealth, and the [social] bases of self-respect, should be distributed equally unless an unequal distribution is to everyone's advantage.

One step that we will have to look at later on is exactly what are the goods whose distribution is the focus of these principles of justice. Elsewhere Rawls calls them 'social primary goods'. Here he just calls them 'primary goods, that is, things that every rational man is presumed to want' (p.62). We will also need to look at the differences between the kind of primary good that is the focus of the first principle and the kind that is the focus of the second principle: that is, the difference between fundamental rights and the other socio-economic goods. As he says, the fact that the principles are lexically ordered, with the first principle taking absolute priority over the second, 'expresses an underlying preference among primary social goods' (p.63). The question, When (if ever) is this preference rational? he postpones to a later occasion (though he implicitly recognizes that this preference may not always be rational).

Still, we should note at once the important difference between Rawls's principles and a utilitarian approach. Rawls's principles focus on concrete social primary goods, while the utilitarian focuses on well-being or happiness.

The focus, Rawls reminds us (p.64), is on the basic structure. Fundamental rights are, by definition, the rights and duties assigned by the basic structure (as opposed to the rights that individuals acquire through particular transactions and relationships) (pp.63-4). When the principles tell us that everyone must benefit from inequalities; in applying these principles, we must look, not at individual persons, but at 'representative persons hoding the various social positions', and at the expectation that 'indicates their life prospects as viewed from their social station'. Neither principle applies to particular decisions about what goods to allocate to what individuals.

3. The Second Principle

Problems arise about the interpretation of the second principle, especially to understand how to understand the ideas of social positions being 'equally open to all', and of inequalities being 'to everyone's benefit'.

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3. The Second Principle

Rawls considers two interpretations of each component of the 2nd principle (p.65). For the idea of social positions' being 'equally open to all' he compares two conceptions of equality: 'equality as careers open to talents' and 'equality of fair opportunity'. For the idea of inequalities being 'to everyone's advantage' he compares 'efficiency' (which most economists call 'Pareto optimality') and the 'Difference Principle'.
This gives rise to four interpretations of the principle, which Rawls calls Natural Liberty, Natural Aristocracy, Liberal Equality, Democratic Equality. One of the main purposes of this section is to argue that Liberal Equality is clearly preferable to Natural Liberty, and then to argue that the reasons for preferring Liberal Equality over Natural Liberty are equally reasons for preferring Democratic Equality over Liberal Equality.

Rawls starts his discussion of Natural Liberty on p.66. One curious feature of his discussion is how little he says about the two interpretations of the idea of social positions' being 'equally open to all'. The idea of careers being 'open to talents' he also calls 'formal equality of opportunity' which guarantees that 'all have at least the same legal rights of access to all advantaged social positions' (p.72). I think we may suppose that it also implies that social positions are always given to those who are best qualified for them, without any discrimination on any grounds other than the expectation of how well they will carry out the responsibilities of the position. However, it is quite compatible with formal equality of opportunity that there are stark inequalities in people's access to education; it could I think be a system in which there is no public ducation school system, and a person's access to education depends on whether anyone is able and willing to pay for her education.

The principle of efficiency is explained on pp.66-70. The basic idea is that one scheme S1 is Pareto-superior to another S2 if under S1 no one is worse off than under S2 and at least some people are better off. Then a scheme is Pareto-optimal if there is no scheme to which it is Pareto-inferior: no feasible alternative scheme in which everyone is at least as well off and some people better off.
The objections to the principle of efficiency as a complete account of distributive justice are given on p.71.

Natural liberty seeks to supplement efficiency as an account of justice by taking it as a condition on institutions, which must also satisfy certain basic conditions, such as the first principle of equal liberty and equality as careers open to talents (pp.71-2).

If we make the standard assumption about perfectly competitive markets, we may suppose that the social institutions will produce a certain efficient outcome from any initial distribution of initial assets (p.72). However, which distribution is produced depends on the initial distribution. Under Natural Liberty the initial distribution is regulated only by the principle of equal liberty and the principle of formal equality of opportunity. So how wealthy a person's parents are (for example) may make a massive difference to their share of the advantages of social cooperation. But Rawls thinks it is obviously unjust for the people's distributive shares to be influenced by factors that seem so 'arbitrary from a moral point of view' (p.72).

This is why it is plausible to move from Natural Liberty to Liberal Equality (p.73). Here we add the idea of 'fair equality of opportunity'. This idea is, roughly, that we should eliminate the impact of social circumstances on people's expectations of a share in the advantages of social life. Instead, everyone who has similar talents and similar motivation should have the same expectations: these expectations should not be affected by their social class. (The most promising way to do this is outlined on the second half of p.73.)

However, even if Liberal Equality 'works to perfection in elimiating the influence of social contingencies it still permits the distribution of wealth and income to be determined by the natural distribution of abilities and talents' (73-4). This allows distributive shares to be determined by the 'natural lottery', and this too Rawls thinks is equally arbitrary from a moral point of view (74-5). Rawls doesn't argue for this point as clearly as he might, but I think on reflection he is right: why should having certain genes by itself make you deserving of greater advantages? After all, you didn't choose those genes.

Now, I do not think that Rawls is saying that brute luck (natural, social or historical fortune) should never affect someone's share. Some philosophers think this (especially a distinguished neo Marxist political philosopher G.A. Cohen), but I think Rawls is quite prepared to allow that individual strokes of luck (I just happen to see the advertisement in the paper when another person doesn't, for example) may make a difference to a person's particular share. He is not really talking about a person's actual share, but the expectation that goes along with a certain position in the initial distribution of social and natural assets.

4. The Difference Principle

The Difference Principle says (p.75): 'Assuming the framework of institutions required by equal liberty and fair equality of opportunity, the higher expectations of those better situated are just if and only if they work as part of a scheme which improves the expectations of the least advantaged members of society'.

The Difference Principle is explained on pp.76-8. The basic idea is that you compare various feasible alternative schemes of social institutions; in each scheme you find out who is worst off in terms of their expectation of social primary goods under that scheme; and you prefer a scheme whose lowest point is as high as, or higher than, the lowest points of all the other schemes.

The whole point of the Difference Principle is to favour equality except where we have, not a zero-sum game, but a situation in which the sum total of all shares can be enlarged by allowing some equalities. It may be that, when one class has a greater expectation of advantages, this may contribute to the expectations of other classes as well. This is why Rawls's contribution curve OP has the shape that it has.

Rawls suggests that the mere fact that I have greater talents is not enough to justify my getting greater rewards, but the fact (if it is a fact) that a system in which I get greater rewards is better even for those who do not get them can justify my getting them (see p.78). If the Diff. Princ. is satisfied, everyone will regard the inequalities that exist as acceptable in the sense that they acknowledge themselves to be better off with these inequalities than they would be if the distribution were more equal.
A refinement of the principle (p.78-9): the ideal situation is the one that optimizes the position of the least advantaged; just ones are those that contain no inequalities that do not improve the position of the least advantaged; unjust ones those that contain inequalities that do not help to raise the position of the least advantaged.

The Difference Principle and Efficiency (p.79-80). The ideally just system under the Difference Principle is necessarily also efficient. However, not all efficient systems are just. And if the system is efficient but unjust according to the principle, our duty to promote the cause of justice may require us to make this scheme less efficient (at least temporarily) in order to make it more just.

Everyone benefits from inequalities in the following clear sense. If the Diff. Princ. is satisfied, then the least advantaged group has a greater expectation of social primary goods than under any system that generated an equal distribution. So, if even the least advantaged are better off under this scheme than they would be under the equal scheme, it follows that everyone is better off under this scheme than they would be under the scheme that yields an equal distribution.

Of course, a system that optimizes the position of the least advantaged need not optimize the position of anyone else. But under certain assumptions it may at least improve the conditions of everyone else: that is, it may be true that if a scheme S1 is better for the least advantaged than another scheme S2, it is also better for everyone else. Then there would be a stronger sense in which the precise degree of inequality that exists would be to everyone's benefit: everyone is better off than they would be if the distribution were closer to equality. If we can't assume this, then Rawls suggests a more general principle (p.83), under which the worst-off group has lexical priority over everyone else, the second worst-off group has lexical priority over everyone else except the worst-off group, and so on.

5. Fair Equality of Opportunity and Pure Procedural Justice

It is important to remember that Rawls's focus throughout is on the evaluation of institutions. We evaluate institutions on the basis of the expectations that they generate for relevant social positions, judging these expectations as if from the standpoint of a representative occupant of that social position.

The principles of justice aren't concerned with evaluating particular distributions of particular shares among particular individuals. The only way to evaluate this, Rawls thinks, is as a matter of pure procedural justice. Here he introduces his distinction between perfect, imperfect, and pure procedural justice. Still, which procedure is the right one? Rawls conceives of the procedure as defined by a system of rules, and the right system of rules is the one that optimizes the expectation for the representative occupant of the least advantaged social position.

6. Primary Social Goods as the Basis of Expectations

Utilitarianism is concerned to maximize the sum of certain goods - viz. well-being or happiness. It therefore requires us to perform cardinal interpersonal comparisons; to be able to say things like 'Compared with social system S1, person A gains twice as much from social system S2 as person B loses from it.' That is, we have to be able to compare one person's gain or loss from a given social system, relative to some other social system, with the gain or loss of another person from the same system, and indeed we must not only compare these gains and losses in ordinal terms (and so to say that A gains more than B loses), we must be able to measure them in cardinal terms (and so to say how much more A gains than B loses).

Except in the most simple and artificial contexts, this is fantastically complicated idea. Hence the difference principle seems to have an advantage. Here we must indeed be able to compare people's level of advantage in terms of social primary goods (e.g. We must be able to say that unskilled labourers are worse off in these terms than skilled labourers), but we do not need to measure how much worse off they are (pp.91-2). Moreover, having identified the least advantaged social position, we need only compare the expectations of the representative occupant of this one position under different social systems. We needn't worry about the more favoured social positions.

In addition, for Rawls, the comparisons are made in terms of social primary goods, not well-being. Here he offers another a/c of social primary goods. They are primary goods because they are things which it is supposed that a rational person wants whatever else she wants; and they are social goods because of their connection with the basic structure: 'liberties and powers are defined by the rules of major institutions and the distribution of income and wealth is regulated by them'.

Here he does indeed suggest that the relevant social primary goods are just (i) fundamental rights, and (ii) the powers and prerogatives of authority, and income and wealth (p.93). One might wonder why he excludes job opportunities, access to education, and access to health care. I guess he thinks that these will be covered by the fair opportunity principle, or can be treated as a form of income or wealth.

For Rawls then, we don't need to worry about other people's goals in life, and whether they really do promote their well-being. We must just make sure that everyone has the means to pursue their conception of the good life. We needn't worry about whether you are fundamentally happier than I am. We can focus on something simpler and more obvious: how well off I am in terms of social primary goods.

7. Relevant Social Positions

What this means, Rawls says, is that there are just two relevant social positions from which we should judge social institutions (p.96). These are the position of the equal citizen; and the position of someone born into the least advantaged group.
The task of identifying the least advantaged group is not straightforward. If the principle of fair opportunity is genuinely satisfied, then the social class of someone's family background should be irrelevant. The only relevant factor would be his natural characteristics. This I suppose is why Rawls suggests the unskilled labourer.

8. The Tendency to Equality

p.101: 'We see then that the difference principle represents, in effect, an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be....'
'In designing institutions they undertake to avail themselves of the accidents of nature and social circumstance only when doing so is for the common benefit.'

The difference principle also expresses an idea of reciprocity. Pp.102-3.

The idea of desert is confusing here. In one sense, what we deserve is just what is our due under the rules of the institutions themselves. But then this notion of desert cannot be appealed to in evaluating those institutions. In another sense, it is what gives us a natural or moral right to greater advantages. Our natural assets, or our good fortune, do not make us Deserving in that sense.

The Difference Principle also captures the idea of 'fraternity' (p.105): 'Members of a family commonly do not wish to gain unless they can do so in ways that further the interests of the rest'.
Hence a society satisfying the difference principle will not be a meritocratic society (pp.106-7).

9. Principles for Individuals: Fairness

There are also principles of right governing the conduct of individuals. These can only be understood once a conception of justice is on hand, since in many respects what individuals should do depends on whether the social institutions in which they participate are just.

The Principle of Fairness says roughly that ifsome practice or institution is just, and you either voluntarily accept the benefits produced by the practice, or voluntarily take advantage of the opportunities offered by the practice, you must do your part as specified by the rules of the practice (p.112).

All obligations, in the strict sense, arise from the Principle of Fairness, even the obligations that we acquire when we join a game (p.113).

10. Natural Duties

The really important natural duty for our purposes is the duty to uphold just institutions, to comply with them, to work for the reform of unjust institutions where that is possible without great cost to oneself, and generally to advance the cause of justice.

These duties apply regardless of the existing social institutions, and we owe them, not just to particular people with whom we engage in cooperative activities, but to absolutely everyone, regardless of our voluntary act or not. This is what makes them 'natural duties'.