To what extent is Rawls's Theory of Justice merely a Justification of the Existing Political System?

The existing political system is generally recognised as embodying democratic, liberal and capitalist ideals. Where free market values are upheld in a society with an established formal democracy. However, inequalities occur within this society, which some argue are justified through Rawls's Theory of Justice. For this provides a model of society based on the principles of justice and fairness, where inequalities also occur. Thus if even in a just society there are those who are less advantaged, this is seen to justify the present system.

According to Rawls, society should be based on the values of justice and fairness. For in contrast to classic utilitarianism, justice takes priority to happiness. Therefore actions are considered in light of their fairness before the amount of pain or pleasure involved is examined.

Although Rawls's theory is set upon an highly artificial and hypothetical premise, through the original position (OP). The society constructed is based upon the basic structure of the existing system. Thus implying that the structure at present is inherently fair, and that there is merely a need to rationalise judgements for justice and fairness to be achieved. In the rationalisation of judgements, Rawls aims for reflective equilibrium, where narrow self-interests are merged with wider interests until a compromise is reached.

The organisation of the society though is achieved using an imaginary social contract, formulated through the original position. This involves a group, of people from society (POP) who are under a veil of ignorance, hence unaware of their sex, age, wealth, class and position within society. The POP though, do have a general knowledge of sciences and are free, rational beings motivated by self-interest.

This self-interest entails attaining as many primary social goods for oneself as possible, under the maximin principle. Primary social goods include liberties, rights, opportunities, income, wealth, and self-respect. Whilst the maximin principle involves obtaining the best deal for oneself, if once the veil of ignorance was lifted, one was to become amongst the least advantaged in society. In order for this to be effective there are two conditions placed upon the POP. Firstly, there must be non-envy, otherwise total equality will be preferred, so the POP will not take into account the awards for others. Secondly, the POP will be risk adverse, thus unwilling to gamble on becoming amongst the better off, once the veil is lifted.

In the choice of principles to organise their society, the POP will opt for two main principles of justice initially.

'First: each person is to have an equal right to the most extensive basic liberty compatible with similar liberties 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 just savings principle, and

(b) attached to offices open to all in conditions of fair equality of opportunity.'1

Along with these two principles, it is assumed that there will be social co-operation, such that everyone contributes to the benefit of the society. Through their choice of these two principles of liberty and equality, the POP are attempting to gain more primary social goods for themselves. Of greatest importance though is equal basic fundamental rights, such as political liberty and freedom of thought and speech, with the POP placing priority upon liberty. Therefore, inequalities will occur but the least advantaged will still have basic liberties that are intractable.

Under the second principle, inequalities will be reduced under clause(a), which is known as the difference principle. This will ensure that the actions of society are to the greatest benefit of the least advantaged.

Rawls argues that the choice of the two principles in favour of others is intuitionistic, for despite ruling out other principles such as non-tolerance, not every possibility is considered. The choice through intuition though creates a certain amount of criticism at the Theory of Justice. Where it is argued that through the choice of the principles in this fashion the results are therefore contrived, justifying ...

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Marxists such as Fisk2, have argued that this highlights the inherent bias of Rawls. For everyone is said to have a distinct set of values and thus liberties, Rawls though is said to ignore the distinctiveness of individuals. However, with the existing structure the choice of the two principles and the desire for primary social goods, becomes more acute. For in societies based on a structure that does not require wealth, the need for this as a primary social good is unnecessary. Furthermore, even in present society, there are certain members such as monks who will have no desire or need for wealth, despite Rawls perceiving this as a good desired for by all. Fisk criticises Rawls's choice of primary social goods as reflecting bourgeois, capitalist, liberal ideals, which seen in the present system, thus serve to justify it.

Moreover, Nagel argues that there is bias in all contract theories. Whilst the suppression of knowledge in the veil of ignorance is unfair, and produces a contrived result.3

Whilst in the exclusion of economic factors from the constraints to liberty, Daniels criticises Rawls for an assumption that political equality is compatible with social and economic inequality4 . For where there is a greater degree of wealth and subsequently influence, especially in the area of media, political inequality will result. For the wealthy will manifestly be more capable of effecting the nature of politic in any system.

Furthermore the self-interest and pursuit of primary social goods for oneself is seen to justify the greed and acquisitive nature of society within the present system. Once again though the distinctiveness of the individual is not catered for. Rawls fails to account for those who would opt for a more caring, equal community above that of acquiring greater rights for themselves, this option not forming part of the life plans of a 'free society'. Whilst not all primary social goods are of equal value in pursuit of the life plan of individuals.

Self-interest also seems to be in contradiction to the difference principle and social co-operation. For are millionaires really expected to sacrifice greater benefits for themselves, to maximise those of the least advantaged. Even though their wealth was gained from the society, through such wealth they are seen to weld greater power. Thus are not reliant on society to an extent, whereas society are reliant on them to provide investment, jobs and therefore greater wealth. This is seen to justify the present system that allows for entrepreneurs to accumulate great wealth, for through their wealth it is argued that jobs are created and therefore greater all round wealth. However, it is unlikely that the least advantaged gain the greatest benefit from this, with the better off maximising their wealth.

Marxists5 have criticised the difference principle as an impossibility where class distinction exists. For with class conflict, the better off will be unwilling to act in benefit to the least advantaged. Furthermore, with the political and economic institutions being created for the ruling classes, which the better off comprise, the entire system is seen to work against the least advantaged and therefore the difference principle. Thus Rawls is seen to create an egalitarian society, where there is consensus opposed to conflict, with Rawls assuming that the society is naturally free. This highlights the artificiality of the model further, in a society that can never be extracted from its material circumstances. Whilst even if the difference principle does maximise benefits to the least advantaged in the system, under a different system benefits may be maximised even further. Thus the failure to address this possibility is seen to justify the present system.

Elements of the difference principle are seen in the present system though, thus acting as justification. Through distributive income taxation, the better off are seen to work for the benefit of the least advantaged. For the tax will be used to provide benefits for the least advantaged. However, with the widening underclass in society, the employment of the difference principle may be seen to be ineffective, for these are amongst the least advantaged in society, but do not benefit or have their inequalities reduced through the system.

Equality of opportunity is also part of the second principle, implying non-discrimination. This is reflected in the existing system where such principles are said to be upheld by its institutions such as the Court. However, inequality of opportunity are still prevalent where the wealthy are more likely to achieve their aspirations. Whilst on a more acute level, there is still a glass ceiling in many professions that creates an inequality of opportunity on women and ethnic minorities. This suggests that reflective equilibrium is yet to reached, with rationalisation of judgements required. For the system is seen to be inherently correct providing institutions to facilitate and ensure equal opportunities, such as the law.

This equality though involves the collective right to natural talents. For if distribution of goods should not hinge on being born in to wealth than neither should the natural talents. Thus natural talents can only be used to one's advantage if it benefits the least advantaged most.

Nozick6 argues though that if natural talents are to be used collectively than why not bodily organs? For such use is violating the liberty of the individual prohibiting their distinctiveness. Moreover, such conditions to the principle increases the artificiality of Rawls's society, thus is harder to relate to the existing system. Especially with the distribution of social goods is seen to be 'patterned'.

Lloyd7 argues that with inequality in wealth and power, inevitably there is an inequality in liberty, thus providing a conflict between the two principles. Rawls though distinguishes between liberty and the value of liberty. For the value of one's liberty is dependent on one's wealth, and therefore ability to achieve his aspirations. Liberty though as a concept is unaffected by wealth and power.

Even if the POP are seen to choose the two principles of justice and fairness above others, Hart8 argues that this does not explain the lexical priority that Rawls accords to liberty. Where liberty is not to be sacrificed to achieve greater equality. However, until a certain level of economic development is reached general liberties may be sacrificed to raise the standard of economic welfare in society. These liberties though, exclude the basic fundamental rights.

Such a trade-off is seen in the newly developed states such as Singapore, where an authoritarian regime has been tolerated, as the country sustains economic growth. Rawls feels though that once a certain level of economic well-being has been reached by even the least advantaged, liberty will no longer be sacrificed. With society preferring greater liberty to greater economic wealth and equality. However, this fails to consider those who would prefer greater equality. Whilst what is the level at which the trade off would no longer persist? In Singapore, despite a high standard of living, the authoritarian regime is still seen to impose harsh restrictions on society and capital punishment is meted out for offences which western societies do not regard as serious9. With collective rights and good taking priority over that of the individual, in contrary to Rawls.

The priority of liberty fails to justify the existing system though. For whilst inequalities may be explained by the trade off, the increase in restrictions on the liberty of society does not. For example, the new Criminal Justice Bill is seen to limit the liberty of individuals through restricting the right to silence. This does not justify the present system instead highlights its problems, implying that there is no trade off. This though may be explained again by the need to rationalise judgements. However, in a system which allows legislation to limit rights in such a fashion, surely the system itself is at fault, for failing to protect such liberties.

The existing system is also seen to differ from that created by Rawls, in regard to deserts. Where the present society is aid to be based on a meritocracy, in Rawls's society people are only rewarded for their actions where the benefits of the least advantaged are maximised first. Under Aristotle, this is not justice, for justice deals exclusively with deserts, which the benefits of the least advantaged is irrelevant to.

Rawls feels that despite such apparent 'unfairness' the decisions of the POP will be followed by society. For people will recognise that moral principles have been formed to regulate life in a binding fashion. Thus there will be a sense or duty of justice to obey the laws that have been laid down. This seems to justify the existing system in a sense though. For despite any unfairness which may have arisen, society is based on moral principles which should be obeyed in order to allow the perpetuation of the system.

Dworkin10 argues that Rawls's Theory concentrates on equal concern and respect for individuals, this being a presupposition of the social contract not a consequence. Therefore, the creation of the OP and the subsequent conditions is seen to contrive a certain result, and the choice of certain principles.

The Theory of Justice is seen as highly artificial though from its concept in the OP, the conditions placed upon the POP, to the operation of the difference principle. Thus any analogy with the existing system is somewhat worthless. For it is impossible to create such a society where the only motivation of people is self-interest but their natural talents are collective assets.

Similarities that exist between Rawls's model and the existing system, in terms of inequalities and the liberal, acquisitive nature of society though is inevitable. For with a common basic structure for both systems the subsequent results are likely to show a correlation. Thus criticisms of an inherent bias in creating a contrived result. Moreover, it is the adoption of the structure of the existing structure that leads to its justification. For this implies that the framework of society is fair but reflective equilibrium has yet to be reached. This allows all the problems within the society to be explained by the failure to reach reflective equilibrium. When the reflective equilibrium is reached though the problems will be solved, with many liberties being accorded to society which enjoys a high level of economic well-being where equalities are minimised.

The similarities though are seen to be coincidental when the artificiality of the theory is examined. For with assumptions of society such that there will be acceptance of the difference principle through the difference principle, it is highly unlikely that Rawls intended to create a model to justify the existing system, but as an alternative to utilitarianism, in providing a just society.

Although the system was created such that present society could be examined in comparison to a just and fair model. There was never really an intention for the existing system to try and follow that created, or gain justification through it.

BIBLIOGRAPHY:

Rawls. Theory of Justice. 1972

Freeman & Lloyd. Lloyds Introduction To Jurisprudence. 1985 5th Edn.

Martin. Rawls & Rights. 1985

Wolff. Understanding Rawls. 1977

Daniels (ed). Reading Rawls. 1975

Genn. LLB Textbook on Jurisprudence. 1991 2nd Edn.

Samek. 'Justice as Ideology- Another look at Rawls.' Canadian Bar Review (1981) 787

Nozick. Anarchy, State and Utopia. 1975