A critical essay on Rawls's theory of justice

Introduction

Rawls's work on justice runs from A Theory of Justice (1971) to The Law of Peoples (1999). At its centre is justice as fairness, which stands for a just distribution of primary goods in society. A critical essay must explain its main ideas and then weigh against its achievements the objections of Brian Barry and the communitarians, of the Marxists and of Amartya Sen, among others.

Rawls's theory of justice

John Rawls (A Theory of Justice, 1971) asks how a fair set of rules for society can be reached when each person is tempted to favour his own position. His answer is a thought experiment: imagine ourselves choosing the rules by which society is to be organised without knowing what position we would occupy in it: whether we would be born rich or poor, into an upper or lower caste, privileged or disadvantaged. This is thinking under a veil of ignorance. Everyone, acting from rational self-interest, would then look at society from the standpoint of the worst-off, because anyone might turn out to be in that position, and would want rules that guarantee reasonable opportunities and access to education, health and shelter to all. They would also want rules from which society as a whole benefits, so that the better-off, who might have been born worse off, are not weakened either. The result is fairness reached by rational choice, not by benevolence or generosity; the veil does not ask people to be self-sacrificing, only to be their usual rational selves.

The principles chosen. Rawls calls this choosing situation the original position, a contract setting in place of the older state of nature, and says the parties in it would choose two principles. First, each person has an equal right to the most extensive set of basic liberties compatible with the same liberties for others (political liberty, that is the vote and the right to hold office; freedom of speech and assembly; the right to hold personal property; freedom from arbitrary arrest), with liberty of conscience and of thought protected in the constitution the parties then choose. Second, social and economic inequalities are acceptable only if they work to the greatest benefit of the least advantaged (the difference principle) and are attached to offices and positions open to all under fair equality of opportunity. The first principle has priority over the second, so basic liberties may not be traded for economic gain. Within the second principle, Rawls's own order in A Theory of Justice puts fair equality of opportunity before the difference principle. (The IGNOU unit labels the difference principle (a) and fair opportunity (b), and words the priority the other way round, as (a) over (b); the order given here is Rawls's.) The theory is called justice as fairness, and Rawls built it as a rival to utilitarianism, which he faulted for letting the good of some people be sacrificed to the greatest happiness of the greatest number.

Significance for policy. NCERT presents Rawls as giving a rational justification for helping the least privileged members of society, which bears on schemes for the disadvantaged such as reservations, and on the basic minimum of food, housing, clean water, education and a minimum wage that a democratic government is held responsible for providing.

Primary goods. What the two principles allot are primary goods: things a rational person would always prefer to have more of, not less. They are of two kinds. Natural goods, such as health, intelligence and talent, are influenced by social institutions but not handed out by them; social goods, such as income, wealth and opportunities, are handed out by those institutions directly. For Rawls a distribution is fair when the worst-off do as well as they can on the measure of primary social goods.

Criticisms of Rawls

1. Libertarian (Nozick). Nozick's entitlement theory, a reply to Rawls drawing on Locke, holds that redistributing property to reach a fairer pattern violates individuals' natural rights: a state that takes one person's property to hand it to another acts, on this view, much as a thief would, so taxing people to fund welfare is wrong in itself. A holding is just if it was acquired by just means or justly transferred.
2. Communitarian (Sandel, Taylor, Walzer). Sandel calls the Rawlsian individual disembodied, standing apart from society, and Taylor attacks its atomistic picture of the person; for communitarians society comes first, choices have a social context, and people so placed might not choose Rawls's principles. Walzer adds that goods cannot be shared out until we know what they mean to the people among whom they are distributed, so justice is a principle of the community, not of the isolated individual.
3. Feminist (Okin and others). Rawls applies his principles to the basic structure of society, but Okin argues that a theory silent on inequality inside the family, which is treated as a private sphere, is incomplete: the unequal division of household work follows women into public life, so justice as fairness is not fair to women. Other feminists say the self-interested, rational chooser of the original position is a male model that leaves out care, empathy and cooperation.
4. Capabilities (Sen). Two people with the same share of primary goods may differ in health or ability and so in what they can do with it; Sen therefore asks that justice be judged by people's real freedom to achieve what they have reason to value, with primary goods only a means to that freedom.
5. Rationality of the parties (Barry). Brian Barry doubted that people in the original position would reason as Rawls supposes, and added that the least advantaged are hard to define in any society.
6. Marxist. Marxists say a fair distribution inside capitalism leaves the exploitation of workers by capitalists untouched, and that bargaining behind a veil that hides everyone's social and economic conditions is meaningless; justice has to be judged by class relations and private ownership.
7. Market view. Defenders of free markets say markets, not state redistribution, are the best way to help the disadvantaged; others reply that markets tend to work in favour of the already privileged and that the state must ensure basic facilities.

Critical assessment

Strengths. (1) It argues for equal liberty and concern for the disadvantaged without starting from any moral goal given in advance, because it rests on what rational persons would choose. (2) The device of the veil of ignorance models impartiality: it does not ask for self-sacrifice, only for rational self-interest under uncertainty, which is a realistic basis for fairness. (3) It gives a principled defence of a social minimum and of measures like those the Indian state has adopted. (4) It makes justice a matter of the rules of social institutions, which Rawls calls their first virtue, and not of individual charity.

Weaknesses. The objections above are serious: the self behind the veil is abstract; the family is left out; and the choice of the difference principle rests on the parties choosing to keep their worst possible loss as small as they can, a kind of rationality Barry doubted. Beyond borders, Rawls's own Law of Peoples keeps domestic and global society apart, while Beitz would extend the difference principle to the world as a whole. NCERT itself grants that it is not easy to set aside our identities and imagine ourselves behind such a veil.

Overall. It remains the most influential theory of distributive justice of the last half century.

Conclusion

Rawls's theory is a landmark of liberal-egalitarian thought, and it brought normative questions back into a discipline that the behavioural approach had made value-neutral. It has been criticised by libertarians, communitarians and feminists, and it has still shaped how benefits are allotted to deprived groups in liberal democracies such as India.