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Volume 13, Number 2 (Winter 1973)

Defining the Just Society

book cover imageA Theory of Justice,
by John Rawls.
Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1972.

Haven Bradford Gow

What is justice? This question has perennially aroused the avid interest of man ever since he began pondering the riddles of the universe. Plato, who devoted the Republic to an attempt to formulate an answer to that often-asked question, thought that justice is, among other things, “the internal ordering of the soul,” while Karl Marx’s view of justice is best summed up by his famous slogan: “From each according to his abilities and to each according to his needs.” Jeremy Bentham, the English utilitarian, held that justice is that which maximizes the greatest satisfaction for the greatest number, while, on the other hand, the American philosopher, Paul Elmer More, said that justice is “the inner state of the soul when, under the command of the will to righteousness, reason guides and the desires obey.” And the medieval Schoolman Thomas Aquinas, echoing the sentiments of the Stoics, maintained that justice is “the act of right distribution, giving to each man his natural right and due.”

Five years ago Otto Bird, Mortimer Adler’s colleague at the Institute of Philosophical Research, published The Idea of Justice, which sought to bring some light to the timeless controversy concerning the elusive meaning of justice. According to Bird, all the theories of justice which have been developed throughout history are reducible to three basic positions: 1) the Positive Law; 2) the Social Good; and 3) the Natural Right.

The first, the Positive Law theory of justice, holds that justice is conventional, not natural; it identifies justice with positive law and claims that justice, apart from legality, is merely a subjective norm. Justice, it is said, is obligatory only because of legal and political sanctions.

The difficulties that arise from such a theory are clear: For example, even in our ordinary usage of language we admit that a certain deed may be legal without thereby approving it, or claiming that it is a “just” act. While we may grant the legality of a certain action, we do not have to consider necessarily the action morally correct. The Southern slaveholder may have had the law behind him, but it would be mistaken to term such a law “just.” The fact that we can distinguish between “legal” and “just” shows that “legal” cannot entirely replace the word “just.”

Like the Positive Law position, the Social Good theory of justice contends that justice is not natural, but conventional. Unlike the previous theory, however, the second holds that justice and injustice are not exclusively dependent on positive law. Justice, it is claimed, is applicable in areas, such as private life, where law does not and should not apply.

It is also asserted that justice derives exclusively from society and consists ultimately in promoting the “social good.” Justice, that is to say, is totally dependent on society, and not upon the nature of man as such. All rights and duties of justice must be decided ultimately in terms of social utility.

To these respective positions John Rawls, Professor of Philosophy at Harvard University, opposes what Bird terms “the Natural Right” theory of justice. This theory denies, in sharp contrast to the previous two, that justice is exclusively a matter of law or the social good: that is to say, it claims that justice is natural, that it is derived from the kind of being man is. Justice, according to proponents of this theory, is a criterion for judging the law; it is an objective norm for judging human actions, and it is a distinct virtue which imposes a moral obligation to render to each man his natural right and due.

That Rawls holds to this theory of justice is made manifest by his assertion that a conception of justice depends upon “the sort of persons we are, the kinds of wants and aspirations we have and are capable of.” And it is from within the Natural Right framework that the author develops his theory of “justice as fairness”; his criticisms of classical utilitarianism; and his two principles of justice.

For Rawls, “justice as fairness” is not meant to suggest that the concepts of justice and fairness are the same, any more, he writes, “than the phrase ‘poetry as metaphor’ means that the concepts of poetry and metaphor are the same.” Rather, the term he employs is meant to convey the notion that the principles of justice are agreed to in an initial situation that is fair.

“Justice as fairness” differs in several important respects from the utilitarian conception of justice. It has seemed to many philosophers, and indeed has been supported by our common-sense convictions, that we distinguish between, on the one hand, the claims of liberty and right and, on the other hand, the desirability of augmenting aggregate social welfare; and that we place a greater priority on the former, because, for us, “the rights secured by justice are not subject to political bargaining or to the calculus of social interests.” While utilitarianism seeks to account for them as a socially useful illusion, “justice as fairness,” says Rawls, “accepts our convictions about the priority of justice” as on the whole “sound.”

Another contrast, contends Rawls, is that “whereas the utilitarian extends to society the principle of choice for one man,” the author’s conception of justice, being a contract view, holds that “the principles of social choice, and the principles of justice, are themselves the object of an original agreement” by free and rational persons in an hypothetical situation that corresponds to the state of nature in the social contract theory. It has been customary, he observes, “to think of utilitarianism as individualistic …” Utilitarians, after all, have been strong defenders of liberty and freedom of thought (John Stuart Mill being a good case in point). “Yet,” insists Rawls, “utilitarianism is not individualistic, at least when arrived at by the more natural course of reflection, in that by conflating all systems of desires, it applies to society the principle of choice for one man.” Hence, we see that “the second contrast is related to the first, since it is this conflation, and the principle based upon it, which subjects the rights secured by justice to the calculus of social interests.”

A third contrast is that utilitarianism is a “teleological theory” while “justice as fairness” is not. Because of this utilitarianism lends itself to the assertion: “Social welfare depends directly and solely upon levels of satisfaction or dissatisfaction of individuals. Thus if men take a certain pleasure in discriminating against one another, in subjecting others to lesser liberty as a means of enhancing their self-respect, then the satisfaction of these desires must be weighed in our deliberations.… If a society decides to deny them fulfillment, or to suppress them, it is because they tend to be socially destructive.…”

In “justice as fairness,” on the other hand, the principles of justice “put limits on which satisfactions have value; they impose restrictions on what are reasonable conceptions of one’s good.… The moral ideal of justice as fairness is more deeply embedded in the first principles of the ethical theory. This is characteristic of natural rights views (the contractarian tradition) in comparison with the theory of utility.”

A last and very important contrast concerns the conceptions of persons as means or as ends in themselves. “Justice as fairness,” according to the author, regards persons as “ends in themselves in the basic design of society,” while utilitarianism regards “persons as means” and is “prepared to impose upon them lower prospects of life for the sake of the higher expectations of others.”

After examining these related contrasts Rawls presents his two principles of justice, which are: 1) Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others; and 2) social and economic inequalities are to be arranged so that, they are both a) reasonably expected to be to everyone’s advantage, and b) attached to positions and offices open to all.

These principles of justice, claims the author, are those that free and rational persons would accept in “the original position” of equality. In this hypothetical situation, nobody knows his place in society; his class position or social status; his fortune or ill-fortune in the distribution of natural assets and abilities; his intelligence, strength, or even conception of the good. Thus, deliberating behind “a veil of ignorance,” men determine their rights and obligations.

According to Rawls, his deliberate ordering of the two principles means that “a departure from the institutions of equal liberty required by the first principle cannot be justified, or compensated for, by greater social and economic advantages.” He writes, “if there are basic inequalities that work to make everyone better off in comparison with the benchmark of initial equality, why not permit them?” The distribution of wealth and income and the hierarchies of authority, he insists, “must be consistent with both the liberties of equal citizenship and equality of opportunity.”

In giving this priority to liberty, Rawls’s theory of justice is, of course, in sharp contrast with that of the utilitarian conception, since the latter easily can lend itself to serious infractions of liberty for the sake of the “social good.” If the “greatest good for the greatest number” demanded, for example, the denial of basic liberties to a minority group such as the Jews, utilitarianism easily could furnish the intellectual basis for such a denial. On the other hand, Rawls’s conception of justice serves to reinforce the belief that each member of society possesses, as the author puts it,

… an inviolability founded on justice, or as some say, natural right, which even the welfare of every one else cannot override. Justice denies that the loss of freedom for some is made right by a greater good shared by others. The reasoning which balances the gains and losses of different persons as if they were one person is excluded. Therefore in a just society the basic liberties are taken for granted and the rights secured by justice are not subject to political bargaining or to the calculus of social interests.

For so eloquently restating this basic but so often neglected truth, Rawls deserves our thanks. He has, indeed, furnished us with an important and valuable work that should be read and pondered. 

Haven Bradford Gow has been a Wilbur Foundation Fellow.

Posted: March 30, 2014 in Best of the Bookman.

Imagination it is that shapes society—moral imagination, or idyllic imagination, or diabolic imagination.

Russell Kirk

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