Sen’s ‘The Idea of Justice’ (Chapter 2, ‘Rawls and Beyond’)

As its title suggests, this chapter is a critical discussion of Rawls’s political philosophy.  However, the chapter is not Sen’s only critical treatment of Rawls’s ideas in the book: some criticisms noted in the ‘Introduction’ are not developed here but elsewhere, and some criticisms mentioned here are developed further later in the book.  Moreover, the chapter is not entirely critical: Sen begins by recounting his long friendship with Rawls, and about halfway through the chapter Sen identifies seven ‘positive lessons’ from Rawls’s political philosophy.  Nonetheless, the bulk of the chapter is critical of Rawls’s views.

The following three criticisms especially struck me as I was reading the chapter:

  1. Sen’s claim that if Rawls acknowledges that unanimity on a conception of justice cannot be achieved, then it follows that Rawls’s entire theory of justice is ‘devastated.’
  2. Sen’s claim that Rawls simply assumes that citizens will “spontaneously do what they agreed to do in the original position” (61).
  3. Sen’s worry that ‘parochial beliefs’ might adversely affect the selection of principles of justice by the parties within the original position.

I found all three criticisms unconvincing.

1.

Sen restates his pluralism with respect to conceptions of justice: “There are genuinely plural, and sometimes conflicting, general concerns that bear on our understanding of justice” (56-7).  Consequently, he does not think that rational agents invariably will converge on a unique set of principles of justice within the original position.  Sen goes on to note that Rawls, in his later writings, acknowledges that alternative conceptions of justice might be selected by the parties in the original position.

(The picture is actually more complicated than Sen presents.  Not only does Rawls acknowledge that the original position device does not necessitate the selection of the two principles of justice as fairness, given the many different considerations to which the parties might appeal in their deliberations [JF, 133-4], he also claims that the original position device itself is only one way to satisfy the ‘criterion of reciprocity,’ and that other liberal theories might employ different justificatory strategies for arriving at principles of justice that satisfy the criterion of reciprocity [PL, xlviii-xlix].)

According to Sen, while Rawls accepts “that there are incurable problems in getting a unanimous agreement on one set of principles of justice in the original position,” Rawls fails to recognize that this “cannot but have devastating implications for his theory of ‘justice as fairness’”(58).  However, Sen does not seem to provide any argument (as far as I could discern) for this claim.  That is, I could not see why Sen thinks that Rawls’s acknowledgement that there might be a plurality of reasonable liberal conceptions of justice renders Rawls’s overall theory no longer viable.

I think that the most plausible way to understand Rawls’s project (in his writings on political liberalism, at least) is that he is trying to identify and defend what he takes to be the best justified conception of justice available, ‘justice as fairness,’ and to explain to us why he thinks that that conception of justice is the best one (namely, by means of the original position device, etc.).  Rawls hopes that we will agree with him, and that we will, in light of his arguments, achieve a reflective equilibrium in support of the principles of justice as fairness (and subsequently employ those principles when thinking about fundamental political matters).

Rawls acknowledges that this is an ongoing, open-ended democratic process.  As he writes: “…we are in civil society and…the political conception of justice, like any other conception, is always subject to being checked by our reflective considered judgements” [‘Reply to Habermas,’ 153].  Commitment to the principles of justice as fairness does not require or depend upon the achievement of unanimous support for those principles (as far as I can tell).  It is not clear why we should abandon our commitment to justice as fairness (assuming that we have been convinced by Rawls’s arguments) once we acknowledge that other reasonable and rational persons might endorse other liberal conceptions of justice.

Moreover, it is important not to overstate the scope for reasonable disagreement with respect to justice in Rawlsian political liberalism: “The limiting feature of these forms [of reasonable liberalism] is the criterion of reciprocity” [PL, 450].  Thus all reasonable political conceptions of justice (roughly, all conceptions that could be supported by reasonable persons, i.e., persons who acknowledge the fact of reasonable pluralism and are committed to satisfying the criterion of reciprocity) will include three features, according to Rawls.  These features are: (a) a set of basic (liberal democratic) rights and liberties, (b) a ‘special priority’ for these rights and liberties over other considerations of justice, and (c) measures ensuring that all citizens have adequate resources to make effective use of their basic rights and liberties.  Consequently, conceptions of justice like libertarianism and classical utilitarianism remain ‘unreasonable’ and thus ‘off the table’ in Rawlsian political liberalism (libertarianism fails with respect to (c), whereas classical utilitarianism fails with respect to (b)).  Even late Rawls, then, would reject Sen’s ‘flute example’ from the Introduction.  Therefore, the concession that Rawls makes does not look especially harmful to his overall project.  All reasonable liberal conceptions of justice are going to overlap on certain core features.  Their differences simply are not fundamental in nature.  (They concern disagreements over questions like: should the basic liberties have ‘lexical priority,’ or a ‘special weight,’ relative to other considerations of justice’?  In ensuring that all citizens have adequate means to make effective use of their liberties, is the ‘difference principle’ to be preferred, or a weaker ‘sufficientarian’ principle?  Etc.)

Perhaps Sen thinks that unanimity is required for the implementation of the principles of justice, given Rawls’s account of a ‘well-ordered society’?  This is not mentioned at all in the chapter, but I suppose that an argument to this effect might proceed along the following lines.  A fully just society, according to Rawls, is a ‘well-ordered society,’ and in a well-ordered society all reasonable persons endorse the same political conception of justice.  If unanimity on a conception of justice is recognized as unachievable, then a well-ordered society cannot be regarded as a realistic utopia, and so the Rawlsian project crumbles.  (Or so such an argument might go.  Again, Sen does not explicitly make this argument.)

However, I think that the idea of a well-ordered can easily be tweaked from one in which there exists unanimous support for the relevant conception of justice to one in which the basic structure is organized in accordance with a legitimate political conception of justice (one that satisfies the criterion of reciprocity, and thus includes the three features outlined above).  If all reasonable persons in a society acknowledge the legitimacy of the conception of justice that governs their basic structure, that society is ‘well ordered’ in nature, i.e., ‘stable for the right reasons,’ as citizens’ sense of justice is sufficient for them to freely support the conception of justice (even if the conception is not their most preferred one, and they consequently exercise their democratic rights to recommend the adoption of a different conception).  If this modest amendment to the idea of a well-ordered society is plausible, then arguments in favour of a conception of justice that claim that a society organized in accordance with it would be ‘well ordered’ in nature can still be made, that is, the idea of a well-ordered society can continue to play its role in demonstrating the feasibility and legitimacy of a conception of justice (within the second stage of the original position argument).

My apologies for this somewhat lengthy discussion!  The main point that I want to make simply is that Sen provides us with no argument, as far as I can tell, for his claim that Rawls’s acknowledgement that the original position device need not yield a unique set of principles of justice entails the demise of his overall theory.  Moreover, I’m sceptical that such an argument is available.

2.

Sen claims that Rawls’s focus on determining principles of justice for institutions leads him to neglect the ‘actual behaviour’ of people; instead, Rawls simply assumes compliance with the requirements of justice.  Within Rawls’s system, according to Sen, the selection of the principles of justice ensures not only the right choice of institutions, but also the necessary behaviour by citizens (see 69).

This strikes me as clearly incorrect.  On Rawls’s account, political power in an adequately just society is ultimately the “power of free and equal citizens as a collective body.”  Consequently, the question of whether citizens actually can do what is necessary in order to maintain just institutions over time is of central importance to Rawls’s project.  There are no ‘political institutions’ that are independent of citizens’ behaviour: “political power is citizens’ power, which they impose on themselves and one another as free and equal” [JF, 40].  Consequently, there is a vital second stage to the original position, in which the parties determine whether the principles that are selected in the first stage can be stable over time ‘for the right reasons,’ i.e., through the free support of reasonable citizens, given the parties’ knowledge of human psychology, the circumstances of justice, and so forth.

All of Part V of Justice as Fairness is devoted to this question (just as is a substantial part of A Theory of Justice, with its discussion of the ‘strains of commitment,’ the ‘argument for congruence,’ etc.).  While Rawls’s discussion of this stage of the original position is conducted at a high level of generality, the parties in the original position, when determining the stability of justice as fairness, do appeal to general psychological and social facts (as well as the general circumstances of justice, including the fact of reasonable pluralism, etc.).  Consequently, Rawls is not simply assuming that citizens in a just society will ‘spontaneously’ act in accordance with the requirements of justice.  Indeed, failure to demonstrate the stability of a society governed by principles of justice in the second stage of the original position is sufficient to show that those principles must be rejected.  While one might fault the details of Rawls’s discussion of stability, Sen is clearly incorrect in claiming that Rawls simply assumes compliance with the requirements of justice.

Perhaps Sen’s criticism should be construed as levelled against Rawls’s assumption of ‘full compliance’ within a just society?  (The argument in the second stage of the original position is meant to show that ‘full compliance’ by reasonable persons is possible, despite the fact of reasonable pluralism, and in light of, inter alia, general features of human psychology).  If so, this is not stated explicitly by Sen in this chapter.  (Although this reading might be suggested by Sen’s presentation of the “6th exclusion” of Rawls’s theory in chapter four (90).)

Certainly, when trying to realize the principles of justice in non-ideal theory, more specific information concerning ‘actual behaviour’ (including expectations regarding probable levels of non-compliance, the actions of ‘unreasonable’ persons, etc.) needs to be taken into account.  However, I do not see why such considerations would undermine the original position device and the justifiability of the principles of justice derived via that device.  This seems especially to be the case once we keep in mind the different roles of the ‘general conception of justice’ and the ‘special conception of justice’ in Rawls’s theory.  The former provides a threshold account of the requirements of justice by means of which we can judge the justice/injustice of existing, ‘non-ideal’ societies.  The latter conception of justice, in contrast, constitutes a ‘regulative ideal’ for thinking about how to reform existing societies.  Once we keep in mind the different content and roles of these two conceptions of justice in Rawls’s theory, the complaint that Rawls fails to consider adequately the ‘actual behaviour’ of persons does not seem to have much force, in my judgement.

3.

Finally, Sen criticizes Rawls’s social contract approach to thinking about justice for being vulnerable to the problem of ‘parochialism.’  Sen writes: “each country, or each society, may have parochial beliefs that call for more global examination and scrutiny” (71).  Sen pursues this criticism at greater length in chapter six, so perhaps we should postpone discussion of it for later.  Nonetheless, I wanted to note that I find this criticism deeply misguided.  The parties in the original position only know certain very general facts about their society, namely, “that it exists under the circumstances of justice, both objective and subjective, and that reasonably favourable conditions making a constitutional democracy possible obtain” [JF, 87].  Beyond that, when identifying principles of justice (as opposed to just institutions), the parties in the original position do not know more particular information about their society – and, in particular, they do not employ the kinds of country or society-specific beliefs that would give rise to concerns about ‘parochialism.’  It seems that Sen is conflating the original position, in which principles of justice are selected, with the ‘constitutional stage,’ at which point the parties apply the principles of justice to the constitutional structure of a particular society, while remaining ignorant of the particular place of the people whom they represent within that society.  (Even with respect to the ‘constitutional stage,’ though, I find Sen’s concern with ‘parochialism’ misguided.)

In conclusion, I would like to note that while I have not (so far) been very impressed by Sen’s criticisms of alternative accounts of justice, and especially Rawls’s account, I remain hopeful that his ‘positive’ project, his ‘comparativist’ approach to justice, will prove to be more compelling.

(Finally, my apologies for so grotesquely exceeding the recommended word limit!)

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13 Responses to Sen’s ‘The Idea of Justice’ (Chapter 2, ‘Rawls and Beyond’)

  1. Derek Bowman says:

    Blain,

    (A) I agree with your general assessment of this chapter, but I do think Sen briefly raises one important challenge. He says, “it is not absolutely clear that a line can be drawn in a way that incentive-based inequalities are seen as acceptable… while other grounds for inequality are rejected.”(p. 61) In effect, he accuses Rawls of trying to inhabit an unstable middle ground between Cohen’s fact-free inquiry and an unrestricted concern with feasibility. I have some thoughts about how Rawls might meet this challenge, but it bears further discussion.

    (B) I share your dissatisfaction with the flute example. Indeed, given Sen’s own position, it should be seen to support justice as fairness. Sen says, “There are genuinely plural, and sometimes conflicting, general concerns that bear on our understanding of justice.”(p. 57) The children ought to recognize that each of them is defending a position based upon a comprehensive preference for one of three competing values. If they also see one another as free and equal, this will lead them to seek an overlapping consensus which strikes a mutually agreeable balance among concerns for equality, efficiency, and controlling the products of one’s labor. Justice as fairness is one such compromise.

    (C) I agree that Sen is somewhat unclear on why the lack of unanimity is supposed to be so devastating for ‘justice as fairness,’ but I read the argument in a different way than you suggest. Sen puts a lot of weight in this discussion on the original position as a procedure for generating principles of justice. Indeed, we can read him as glossing what he takes to be Rawls’s main argument when he says, “[Rawls] argues that since these principles would be chosen by all in the original position, with its primordial equality, they constitute the appropriate ‘political conception’ of justice…” (p. 56)

    This doesn’t strike me as a crazy reading of the ‘original position’ argument, especially when we emphasize its place in the social contract tradition (as Sen does, p. 69-70). In Locke, for example, the state’s distinctive authority over its citizens is based upon the actual (if tacit) agreement of all citizens. Rawls moves from actual to hypothetical consent, but nothing in that would change the need for unanimity. If the hypothetical contractors cannot agree on a determinate set of principles, it appears that we don’t even get a hypothetical contract. What then will the original position have given us?

    Thus, I think your parenthetical remarks (“The picture is actually more complicated…”) go to the heart of the matter. Moreover, Sen’s discussion is ambiguous between two readings of the relationship between a plurality of reasonable conceptions and the original position. One is that when anyone engages the device of the original position, they will find the parties in fundamental disagreement and so get no answer at all. The other is that when each of us engages that device we find the parties come to a unanimous agreement, but we might each find them coming to agreement on different principles. Sen’s argument seems to assume the former, whereas the latter is the better reading of Rawls.

    (On the other hand, Sen’s remark on p. 57 that lack of unanimity would make the theory “hard to use” suggests in favor of your ‘implementation’ reading. On that same page Sen footnotes several articles of his on this same topic, so perhaps the structure of the argument is more clear in one of those).

  2. Blain’s comments all seem good to me, so I won’t comment on them too directly. The one issue I will focus on is the curious reference to Adam Smith and his idea of the ‘impartial spectator. Sen claims that this device “allows some possibilities that are not readily available in the contractarian line of reasoning used by Rawls” (70). However, most of his examples seem to contradict this point in a way that gels with Blain’s reading of the unanimity problem.

    The original position, it seems to me, is nothing more than a device designed to inspire public reasoners to imagine themselves as Smith’s impartial spectator. In his lectures on Hume’s similar idea of the ‘judicious spectator’ he states relatively clearly that this was an important seed for his development of the original position. From what I can tell, the original position adds two components. First, it asks people to imagine themselves in such a position and what they would rationally want. The representatives in the original position are imagined to be impartial (by virtue of their ignorance) but to ALSO be aware of the rational interests of those they represent. This seems important for precisely the reasons Sen points us to: the importance of incorporating actual human motivations.

    Second, it frames this in a contractual way not to imply that a society rests on any specific contract (either real or hypothetical), but instead to offer to means of translating the abstract principle of justice into a concept that will motivate real people. The metaphor of contract implies the value that is offered. The impartial spectator, standing alone, has no legitimacy. The judgment may be impartial but it bears no political force. What Rawls hopes to offer, I think, is a way of using that idea but giving it meaningful purchase on those actual people who are asked to envision it.

    As Blain aptly points out, the original position serves a justificatory purpose. It is a device meant to convey to people a) WHY they are obligated to take seriously the competing viewpoints in the process of public reason and b) why they should not abandon entirely the hope of some degree of consensus. Whether it succeeds is an open question, but I don’t think it’s correct to imagine its purpose as untethered to concrete legitimation and the material world.

    I do find the last point Sen makes–the problem of universality and parochialism–to be a strong one, though. It does seem like a tremendous problem for Rawls and any other theorist of justice if their systems can only construct basic structures for a limited set of contracting members. I don’t know that Sen has yet offered anything better, but I await his further discussion on the matter.

  3. Derek,

    Regarding (A), I agree that Sen does bring up an important challenge to Rawls’s argument in favour of the difference principle. I did not mention it, though, as it is a reference to G. A. Cohen’s ‘incentives argument’ against the difference principle, a line of argument that Sen does not seem much interested in pursuing, given his desire to move further away from ‘ideal theory’ (in contrast to Cohen). Moreover, I’m sure that most readers here are aware of the debate that has been going on for a dozen years in response to Cohen’s argument (not mentioned by Sen, however), including defences of Rawls against Cohen’s argument by David Estlund, Thomas Pogge, Andrew Williams, Norman Daniels, and others. I agree with you that this is a challenge worth discussing further, but since it seemed not central to Sen’s own concerns, I did not bring it up in my (already far too long) commentary.

    Regarding (C), I think that you may be right that I was overly quick in dismissing Sen’s ‘unanimity’ criticism of the original position device. I also agree with you that the better reading of Rawls is that when each of us employs the device of the original position, we understand the parties as coming to a unanimous agreement on principles of justice, given the considerations that we think are relevant to their deliberations. But, at the same time, we reasonably can recognize that other persons, through their use of the original position device, might come up with somewhat different ‘unanimously-endorsed’ principles.

    Does this possibility pose a serious problem for Rawls, with respect to either (I) the justification for the principles of justice, or (II) their implementation?

    (I) With respect to justification, I would go back to the point that I made about the limited range of reasonable liberal conceptions of justice that Rawls thinks are possible. All reasonable (or legitimate) liberal conceptions of justice are going to share three features (roughly, basic liberal democratic rights and liberties, special priority for those rights and liberties, and a guarantee of basic resources for all citizens). So, even with a plurality of different conceptions of justice arrived at by means of different employments of the original position device, there is still going be some level of ‘unanimity’ with respect to the general features of justice. Among other things, libertarianism and utilitarianism continue to be ruled out. Moreover, each of us should continue to reflect critically upon – and, if necessary, revise – the conceptions of justice that we think is the correct one, in light of objections, criticisms, and so forth (i.e., we should always feel free to ‘re-enter’ the original position). Consequently, I think that the existence of a plurality of reasonable liberal conceptions of justice does not pose a decisive problem with respect to justification (but I clearly need to think more about this).

    (II) The remaining disagreements amongst the family of reasonable liberal conceptions of justice also does not seem to pose an intractable problem for the implementation of justice by societies. Even if my society ends up organizing its basic structure in accordance with a reasonable conception of justice that I do not think is the most justified one (i.e., the one that my original position device yields), the conception of justice in question nonetheless is not going to be one that I think is grossly unjust. Indeed, I will recognize that it shares certain general features with the conception of justice that I think is the correct one. So I will think of my society as ‘adequately’ just, but not ‘fully’ just. Furthermore, any reasonable conception of justice is going to secure for me rights, liberties, and resources sufficient for me to advocate the democratic adoption of the conception of justice that I think is the correct one.

    In short, with respect to the original position device, I agree with you about how best to understand Rawls on the ‘plural conceptions of justice’ question, and, given that understanding, I think that Sen’s ‘unanimity’ criticism of the original position device is (still) unconvincing.

    (I have some thoughts on Charles’s comment as well, but must run now. I’ll post them tomorrow.)

  4. I would like to elaborate a bit on one the line of objection Sen makes to Rawls with respect to the prioritization of the equal basic liberties principle. I have tried to make a similar objection against Rawls, and I think Sen’s distinction between an “arrangement-focused” versus “realization-focused” approach to justice can usefully clarify my objection and concerns.

    So the criticism I have in mind is that the Rawlsian prescription that justice requires us to serially order liberty over all other values (e.g. equality, priority, utility, etc.) is an “arrangement-focused” approach to justice which (unlike a “realization-focused” approach) is not “inescapably linked with the world that actually emerges” (what Sen calls “naya”, p. 20). As such, the “arrangement-focused” approach generates inert or deeply problematic prescriptions when invoked in (or applied to) the real world.

    The design of the original position ensures that the parties invoke an “arrangement-focused” approach to justice rather than a “realization-focused” approach. For example, in addition to the impartiality-promoting constraints Rawls invokes, like the veil of ignorance, he also introduces questionable empirical assumptions. For example, in his discussion of maximin Rawls claims that the contracting parties are deliberating about what their place would be within a society that exists in the circumstances of justice under reasonably favourable conditions. Elaborating on what the latter entails Rawls claims that they are the ‘conditions that, provided the political will exists, make a constitutional regime possible’ (Rawls 2001, p. 101). These are conditions such as sufficient economic and technological development, sufficient natural resources and an educated citizenry.

    But this contravenes the constraint the veil of ignorance imposes on the parties in the original position-namely, how rich or poor their country is. Very few non-democratic societies in the world today, let alone in past generations, are so affluent that they could institute American-style liberal democracy if they only had the “political will”.

    Perhaps the Rawlsian would also add that, as an exercise in ideal theory, the parities are to assume full compliance and thus the priority of liberty does not require much affluence as society would not have to spend much on protecting liberty if no one would be inclined to contravene liberty.

    Assumptions like full compliance and “reasonably favourable conditions” thus bracket key considerations that a “realization-focused” approach to justice would emphasize- like that fact of non-compliance and that protecting liberty has costs.

    The right to vote is a basic liberty and a just society should ensure that no adult citizen is denied the right to vote. But the difficulty arises when decisions must be made concerning the allocation of the public funds needed to run an election and ensure citizens can exercise their right to vote. Prohibiting citizens from voting is not the only way citizens can be disenfranchised. Full compliance would rule that possibility out and let’s grant that assumption for the moment. But other “realities” of even fully compliant societies raise serious challenges. The distribution of polling stations within a geographical territory and the hours of operation of a polling station, etc. will also have an impact on the opportunity citizens have to exercise the right to vote. These provisions have budgetary implications which can run into millions of dollars. In The Costs of Rights Stephen Holmes and Cass Sunstein describe some of the costs involved in American elections:

    In Massachusetts, a state law passed prior to the 1996 presidential elections mandated longer hours for polling stations. Implementing this tiny amendment to the law cost Massachusetts taxpayers $800,000. In California, where a study of electoral expenses was commissioned by the state government, the cost of any statewide election (whether presidential, senatorial, gubernatorial, etc.) runs around $45–50
    million. This is also true for any referendum requiring a separate ballot. Printing and mailing costs for voter guides alone, including those printed in Spanish as well as English, can range from $3 million to $12 million. In California, the cost per voter is estimated to run from $2 to $5, depending on each municipality’s voting system (Holmes and Sunstein, 1999, p. 114).

    All rights, even something as basic as the right to vote, cost money and this means that giving an absolute priority to the basic liberties will severely constrain the public funds available to promote other laudable aims. How much should we spend to ensure that every citizen enjoys what Rawls calls the ‘central range of application’ (Rawls, 1996, p. 297) for each of the basic liberties and exactly what constitutes this range of application? The answers to these questions cannot, for Rawls, be answered by appealing to considerations of the common good. Rawls believes that justice denies that the loss of freedom for some is made right by a greater good shared by others. Indeed, justice even denies that the loss of freedom for some is made right by conferring greater benefits on those individuals whose rights are being restricted (unless those benefits are greater liberty).

    The only way I can make sense of Rawls’ absolutist stance on basic liberties is that he (falsely) assumes these are costless rights. But a basic right like the right to vote has costs. We could spend endless amounts of public funds trying to ensure that the right to vote is adequately regulated (as well as all the other fundamental rights and freedoms).The more we spend on improving the enjoyment of this one right the less we will have for other laudable aims that do not involve basic liberties, such as universal health care, education, etc. But Rawls does not permit us to appeal to benefits to the public good when making decisions about the regulation of basic liberties. Such decisions would violate the equal basic liberties principle which is serially ordered above the principles of fair equality of opportunity and the difference principle. So the equal basic liberties principle cannot be subjected to a cost–benefit analysis that transcends the metric of liberty itself. But the reality is that every society, even affluent societies like America, must (and do) make such decisions when they invest scarce public funds into certain aims (e.g. national defence, domestic security, education etc.) rather than other aims. These constraints are ignored by Rawls because he discusses a society that exists in an idealized scenario that is insulated from many of these issues. Thus an “arrangement-focused” approach to liberty limits our deliberations in a way that makes it sound reasonable to assert “The priority of liberty implies in practice that a basic liberty can be limited or denied solely for the sake of one or more other basic liberties, and never, as I have said, for reasons of public good or perfectionist values.” (Rawls, PL 295) A “realization-focused” approach to justice will not take such an absolutist position on liberty.

    And this then links in with Sen’s concern about the relevance of a global perspective of justice. If one sought to apply Rawls’s first principle of justice to the global arena, one might think that it is most important to train virtuous judges who can then ensure that all societies make good on having the “political will” to prioritize liberty over all other values (by threatening to invalidate legislation that contravenes a liberal constitution). Having impartial and competent judges is of course important. But as the “first principle” of global justice one might find it a bit odd, even perverse, to prioritize the training of judges and instituting judicial review over, say, the training of doctors and nurses, eliminating infectious diseases, eliminating the most blatant and vicious abuses of political power. A “realization-focused” approach to justice would bring these considerations to the fore, rather than bracketing or side-stepping them as I believe Rawlsian justice does.

    Cheers,
    Colin

  5. I would like to comment upon these remarks of Blain’s:

    The picture is actually more complicated than Sen presents. Not only does Rawls acknowledge that the original position device does not necessitate the selection of the two principles of justice as fairness, given the many different considerations to which the parties might appeal in their deliberations [JF, 133-4], he also claims that the original position device itself is only one way to satisfy the ‘criterion of reciprocity,’ and that other liberal theories might employ different justificatory strategies for arriving at principles of justice that satisfy the criterion of reciprocity [PL, xlviii-xlix].

    I think Sen is mistaken in thinking that Rawls concedes that the original position does not yield a determinate set of principles because of pluralism and I think that the passage that Blain quotes from JF does NOT, as Blain thinks, support Sen’s view. Indeed, in the passage Blain refers to, Rawls is merely conceding that the OP cannot “attain the ideal of rigorous deductive reasoning”. Rawls says (please forgive the long quote):

    [I]n section 23.4 we noted that we should try to present the parties’ reasoning in the OP so as to show it to be fully deductive…even though we grant that our reasoning is highly intuitive and falls far short of the ideal.

    This statement can be misleading unless it is carefully understood: the idea is that all the necessary premises for the argument from the original position, including the necessary psychological beliefs…are included in the description we gave of it. Our aim is to show that the selection of the two principles is based on the premises explicitly set out in that description and not on further psychological and other presuppositions. Otherwise the OP does not keep track of our assumptions and we don’t know which ones we have to justify.

    The ideal of rigorous deductive reasoning cannot, however, be fully attained, for at least two reasons. The first reason is that there are indefinitely many considerations that may be appealed to in the original position and each alternative conception of justice is favored by some considerations and disfavored by others. Unless we can close the list of possible considerations (which we cannot), it remains uncertain how the balance would turn out, all things tallied up. The best we can say is that these are the most important considerations and trust that those we have not examined would not upset the balance of these reasons.

    Here’s how I read this: there are (logically) possible considerations that we might overlook and this will prevent the argument from the OP to the two principles from being strictly deductive. The “indeterminate-ness” is caused by some logically possible considerations that we might miss. This, it seems to me, is a different problem than “the fact of genuinely plural, and sometimes conflicting, general concerns that bear upon our understanding of justice”. And, I don’t think Rawls saw pluralism about conceptions of justice as requiring him to concede the that the OP will not yield a determinate set of principles.

  6. Charles,

    I think that I agree with almost everything in your comment (not surprising, since you seem to agree with me!).

    The one exception is this: “I do find the last point Sen makes–the problem of universality and parochialism–to be a strong one, though. It does seem like a tremendous problem for Rawls and any other theorist of justice if their systems can only construct basic structures for a limited set of contracting members.”

    I would be curious to know exactly what you mean by ‘parochialism’ here. For the reasons that I provide in my commentary, I don’t think that Sen’s argument is very compelling when it comes to parochial beliefs or values. (This is the 4th ‘exclusion’ mentioned by Sen on p. 90, if I may jump ahead one chapter.) As far as I can tell, the parties in the original position simply do not rely on the kinds of beliefs that are vulnerable to this criticism.

    On the other hand, what you seem to be referring to in the second sentence that I quoted above is a different problem, namely, the worry that the interests of persons outside of the contracting members are not addressed adequately (or at all) by the principles that the contracting members select. (This is the 3rd ‘exclusion’ mentioned by Sen on p. 90.) This might be a serious worry. One way to get around it is to relax the assumption that the parties in the original position are selecting principles for a ‘closed society.’ However, that might give rise to other problems. (Among other things, it makes the selection of principles far more uncertain. Difficult questions arise about how much ‘weight’ is to be given to the interests of non-members, etc.) An alternative is to posit a global original position, either something like the version posited by Rawls in The Law of Peoples, or a ‘cosmopolitan’ version like the one recommended by Pogge and Beitz. Sen claims that such a move is unsatisfactory, but it’s not clear to me why this is so, or why the Smithian impartial spectator is to be preferred over an ‘open’ or ‘extensive’ version of the original position. Perhaps his answer will become clearer once we get to his views on global justice.

  7. Colin,

    I recognize some of the claims in your comment from your article in Political Studies. They helpfully flesh out and bolster Sen’s criticism of what he takes to be Rawls’s ‘arrangement-focused’ account of justice.

    Nonetheless, I have some concerns with a couple of your claims. Before I get to them, though I would like to make a general point, as I think that it will help to make clear why I am not entirely persuaded by your criticisms of Rawls.

    I think that it is important to keep in mind that in A Theory of Justice Rawls identifies two conceptions of justice: the general conception and the special conception. The general conception of justice asserts, roughly, that all goods distributed in society, including liberty and opportunity, are to be distributed equally unless an unequal distribution benefits everyone (and in particular those who fall on the short end of the resultant unequal distribution). The special conception, in contrast, includes the two principles, including the lexical priority of the first (the basic liberties) over the second, and the lexical priority of the ‘fair equality of opportunity’ part of the second principle over the difference principle part. Moreover, the special conception requires that the basic liberties be distributed equally – unlike the general conception, inequality with respect to liberty is ruled out.

    When non-ideal circumstances obtain, or to the extent that they exist, Rawls recognizes that the special conception cannot be realized. Under such circumstances it becomes a goal – a ‘regulative ideal’ – rather than a set of requirements. (At least I think that this is the most plausible interpretation of what Rawls says.) The rankings provided by the special conception do give us some guidance as to what matters are especially urgent. Protecting the physical integrity of persons, or preventing their enslavement, is obviously more urgent than achieving fair equality of opportunity. Nonetheless, in non-ideal circumstances, I think that it would be a mistake to interpret Rawls as insisting that the lexical priority of the basic liberties be respected. If some inequality, temporarily instituted, would help to bring about conditions in which the special conception might be feasible, then that inequality would be justified, within Rawls’s overall theory. In contrast, the general conception of justice does seem to apply to non-ideal circumstances. Inequality with respect to any kind of social good (liberties, resources, etc.) that does not benefit everyone, especially those on lesser side of the distribution, is unjust and something that we should redress. So the general conception provides us with a standard of justice that we can apply even in non-ideal conditions.

    1. With all that in mind, I have a couple of thoughts regarding your claim that the ‘lexical priority’ that Rawls assigns to the basic liberties over other considerations of justice can be explained only by an assumption on his part that such rights are ‘costless.’

    Presumably one of the reasons why the ‘special conception of justice’ applies under conditions of (a) full compliance and (b) ‘reasonably favourable conditions’ (i.e., adequate resources, etc.) is that the basic liberties would be relatively inexpensive (not ‘costless’) to realize adequately for all citizens. As I mentioned earlier, when those conditions do not obtain, I don’t think that the lexical priority of the first principle of justice obtains (although it remains a ‘regulative ideal’, i.e., a goal to be pursued).

    Also with respect to the cost of rights, I think that it is important to keep in mind that the basic liberties and their priority are justified because they are necessary for the effective exercise of citizens’ two moral powers (roughly, a capacity for a sense of justice, and capacity to form, revise, and pursue a conception of the good) over the course of a complete life. Consequently, my interpretation of the extent to which the basic liberties need to be secured for all citizens is a ‘threshold’ conception – i.e., the basic liberties have to be secured to the point that they can be exercised adequately by all citizens in the ‘two fundamental cases’ – not the ‘maximizing’ conception that you seem to be presupposing in your comment (i.e., the first principle of justice requires that a just society ‘maximize’ the extent to which citizens’ liberties are protected). (Perhaps I am misinterpreting you here?)

    A final point concerning the cost of rights: even if I were to grant your objection, it is not clear to me why this would entail rejecting Rawls’s overall approach to thinking about justice. At most, it would require me to reject Rawls’s special conception of justice, justice as fairness, in favour of an alternative reasonable liberal conception, say, one that assigned only a ‘special priority’ to the basic rights and liberties, as opposed to ‘lexical priority.’

    2. I don’t think that I understood the following criticism of Rawls: “[I]n his discussion of maximin Rawls claims that the contracting parties are deliberating about what their place would be within a society that exists in the circumstances of justice under reasonably favourable conditions. … But this contravenes the constraint the veil of ignorance imposes on the parties in the original position – namely, how rich or poor their country is.”

    How does the parties’ knowledge that they are selecting principles of justice for a society that enjoys ‘reasonably favourable conditions’ – i.e., conditions sufficient for the principles of the special conception of justice to be realized, assuming the appropriate will on the part of citizens, etc. – violate the restrictions on knowledge imposed by the veil of ignorance? I understood Rawls’s claim here simply to identify one of the general features of the society in question, namely, that it meets a certain threshold in terms of resources. In this respect, it no more contravenes the constraints of the veil of ignorance, as far as I can tell, than the general knowledge that the parties behind the veil of ignorance have that their society is characterized by the ‘fact of reasonable pluralism.’ Rawls is simply identifying the kind of society to which the special conception of justice can apply. Different principles apply to societies under different circumstances.

    In conclusion, I remain sympathetic to an approach to justice that includes room for thinking about both what ‘full justice’ consists in (ideal theory), as well as how to redress existing injustices (non-ideal theory, including Sen’s ‘comparativist’ approach, as well as your own). And I don’t see any reason to think that Rawls’s political philosophy rules out the latter (even if his own writings tended to focus on the former). Moreover, importantly, I think that both kinds of investigation can helpfully inform each other.

  8. Cynthia,

    I am happy to defer to your interpretation of the passage in question, and certainly never meant to suggest that Rawls ever thought that other conceptions of justice were as justified as justice as fairness. My interpretation is that he thought that they were ‘reasonable’ (so long as they included the three features, etc.), and thus ‘legitimate’ (since they satisfied the ‘criterion of reciprocity’, etc.), even if they were not as reasonable as justice as fairness. So while Rawls thought that there were a plurality of reasonable liberal conceptions of justice, he did not think that all of them were equally reasonable/justified/just. My apologies if I seemed to suggest otherwise.

  9. Blain,

    Invoking the distinction between the general and special conceptions of justice does provide the Rawlsian with a possible response my objection, but I wonder how satisfactory it is.

    Firstly, one might contest the benchmark that equality of primary goods, or some variant of a difference principle applied to all the primary goods, is a defensible account of justice (in the less than “reasonably favourable conditions”) . I think the general conception is appealing in the sense that it permits societies to make the kinds of tradeoffs they will inevitably have to make given budgetary constraints.

    Whether or not non-ideal (or even ideal) societies should aspire to prioritize liberty in the way the regulative ideal of the special conception prescribes is what I think is questionable. And this is my problem with utilizing the OP more generally. I don’t think we ought to invoke a “regulative ideal” from a position of *ignorance* (e.g. without knowledge of our particular economic or political situation, level of civilization and culture). The weight to be placed on promoting the primary goods should be *fact dependent* (e.g. much depends upon facts like the level of goods we already enjoy, the constraints that impede the realization of a higher levels of these goods, etc). If the greatest threat to security of the person in one’s culture comes from state torture then things look different than they would be if the greatest threat is drinking contaminated drinking water. So in certain cultural circumstances it might make sense to prioritize the right not to be tortured; whereas in other circumstances our regulative ideal might be to prioritize public health measures like sanitation and immunizations over the constitutional protection of all basic liberties.

    So tackling the issue of priorities and tradeoffs in the abstract, as Rawls does, is, in my view, fundamentally flawed. Rather than invoking either the special or general conception of justice in non-ideal circumstances, contracting parties might want to know what actually limits their ability to realize the “reasonably favourable conditions” before deciding on which “regulative ideal” to aspire towards. Rawls’s comment about societies lacking the “political will” to become constitutional democracies is a grossly simplified description of the situation.

    This brings me to another line of response to Blain’s points. And it concerns the question of whether the equal basic liberties principle requires a kind of sufficiency or maximization. If we conceive, as Rawls does, of the basic liberties as “negative rights” then one will think that prioritizing them is relatively inexpensive. But all legally enforceable rights are *positive rights*, the realization of which requires much more than the absence of state interference. The right not to be tortured requires more than simply a prohibition on torturing. It also requires us (as Sunstein and Holmes argue) to arrange for “prompt visits to jails and persons by taxpayer-salaried doctors, prepared to submit credible evidence at trial”. How far we go in instituting the measures necessary to ensure all citizens enjoy the right not to be torture is an important and complex question. And the same applies to all rights (right to vote, freedom of expression, etc). I don’t think a regulative ideal that invokes only considerations of liberty to help us tackle such issues is helpful or viable. And the assumption of full compliance just ignores all this. Prioritizing liberty when no one will threaten our liberty is one thing. But saying we should prioritize liberty over all other values when doing so has large budgetary implications is another thing. And so the assumption of full compliance skews our deliberations about justice right from the outset.

    On the issue of how the assumption of “reasonably favourable conditions” contravenes the constraints of the veil of ignorance: when Rawls stipulates that the parties in the original position do not have information about the particular economic or cultural situation of their society this means they should not assume that they have economic and technological development (e.g. natural resources and an educated citizenry) that make a liberal constitution viable (if we only had the political will). So when Rawls invokes the reasonably favourable condition assumption I take this to be equivalent to a move that says that, at the level of the individual, the veil of ignorance removes knowledge of which particular person you will be but yet you also can assume you will be born into a family that has the “reasonably favourable conditions” of the most affluent people in society.

    Indeed, this kind of tension permeates Rawls’s account of the original position. He wants us to think impartially by limits this by assuming (a) our society is closed (b) there is full compliance and (c) we are all healthy and productive members of society. Then we can add to this the further assumption that (d) our society is one which enjoys the “reasonably favourable conditions” Rawls identifies. Do we really think the best place to start deliberating about justice is to ask what we think fairness requires in a rich, fully compliant, closed society that is composed of only healthy persons?

    I suppose that is one of the main reasons why I am less hopeful than Blain is that the best way forward is to work towards an approach that integrates ideal and non-ideal theory. I am of course open to that possibility, but have no basis for thinking that ideal theory offers us much. I think the original position has impoverished, rather than enhanced, our deliberations about justice. If one invokes aspects of Rawls’s later writings, like public reason and the liberal principle of legitimacy, then perhaps the Rawlsian project does not appear as troubling as I have made it out to be. But I think a Rawlsian committed to the original position and its conclusions (i.e. the two serially ordered principles) does face serious difficulties for the reasons I have briefly alluded to here.

    Cheers,
    Colin

  10. Colin,

    I have to say that I find the challenges that you raise against the original position device in support of Sen much more compelling that Sen’s own criticisms (or at least the way that Sen formulates them in chapter two). Here are some further thoughts on them.

    1.
    Perhaps I misunderstood your criticism concerning the ‘abstract’ nature of the original position, but I do not see anything in Rawls’s political philosophy that rules out taking into account particular facts when trying to determine what to do in particular circumstances. To use your example of contaminated drinking water, I see nothing in Rawls’s theory that would prevent people committed to it from focusing on addressing this problem before attempting to secure the basic liberties, since (among other things) access to clean drinking water is necessary in order for those liberties to even be viable. Indeed, this is, in part, a reason why the special conception of justice is limited in its scope of application to societies under reasonably favourable circumstances (i.e., societies in which access to clean drinking water is not an issue).

    If we simply abandon the special and general conceptions of justice – without replacing them with a justified alternative, that is, some other justified conception of justice – I worry that measures adopted in particular circumstances to advance ‘justice’ might end up being ad hoc, potentially contradictory (reforms that undermine each other), and risk exacerbating (or creating) injustice elsewhere.

    Now, to make clear the nature of this worry, I should stress that there are going to be cases of injustice that are obvious enough that we do not need to appeal to a worked out conception of justice in order to identify them, or even to determine how to address them (e.g., slavery, torture, genocide, preventable starvation, and so forth). And I don’t think that Rawls would deny this – indeed, such ‘clear cases’ comprise the ‘fixed points’ of our judgement on which he constructs his conception of justice. So, contrary to what Sen claims, Rawls does not think that an account of a ‘perfectly just society’ is both necessary and sufficient for addressing all cases of injustice. It is not where we start deliberating about justice. We already have certain ‘foundational’ views about justice firmly in place.

    Nonetheless, the aim of Rawls’s special and general conceptions of justice (as I understand them) is, among other things, to help us in those cases in which it is not clear what justice requires. There are many difficult decisions that societies face, aside from the most ‘urgent’ cases like slavery, torture, preventable starvation, etc. In those circumstances, the general conception of justice can help us identify instances of injustice that might not otherwise be obvious, and the special conception of justice, as a regulative ideal, can help us identify what our priorities should be in addressing identified injustices (e.g., why securing liberty of conscience should have priority over securing equality of opportunity). That is, the special conception of justice, understood as a regulative ideal, can help us (although perhaps not always) to think about how to make important trade-offs in non-ideal theory (in full light of the relevant facts), and the general conception can help us to identify existing injustices that need to be addressed (viz., cases of unjustified inequality).

    2.
    Regarding your point concerning rights, I did not mean to suggest that the basic liberties should be understood as ‘negative rights.’ Clearly the political liberties are not ‘negative’ in any meaningful sense (as Rawls acknowledges), and you are right that all of them are ‘positive’ in the sense that they require collective action and resources to realize and maintain. My point merely was that satisfying the first principle of justice as fairness requires only that the basic liberties need to be realized to an adequate degree for all citizens. The threshold in question is the ability of citizens to exercise adequately their two moral powers over a complete life – it is a ‘sufficiency’ requirement, not a ‘maximizing’ one. It seems relatively unproblematic, I think, to understand the first principle as prohibiting the reduction of citizens’ basic liberties (including the resources necessary to secure them) below a certain level or threshold for the sake of some other social good – hence the ‘lexical priority’ of the first principle. I don’t see why this would require that endless resources be deployed in order to ensure that the basic liberties are protected to the ‘maximum’ extent possible. Moreover, I think that the ‘sufficientarian’ view, applied to a definite list of basic liberties (a ‘fully adequate’ one, as Rawls puts it), is the view that Rawls moved to in response to Hart’s criticism of the formulation of the first principle in Theory.

    An analogy can be drawn with the idea of a basic income. If citizens have a right to a basic income, such a right clearly would be a ‘positive’ one. Such a right would secure for all citizens a certain level of resources, below which they would not be permitted to fall. However, once this level has been secured for all citizens, there would be no further ‘positive’ duty on the part of society to provide additional resources to citizens (ceteris paribus). Likewise, I think that the first principle of justice as fairness, with respect to the resources necessary to secure the basic liberties for all citizens, can be understood as a ‘sufficientarian’ one: it prohibits reductions in the effective protection of the basic liberties below a certain threshold in order to achieve other social goods (hence its ‘lexical priority’).

    3.
    I’m afraid that I still don’t see how the assumption of ‘favourable conditions’ violates the constraints of the veil of ignorance. The parties simply are stipulated by Rawls as selecting principles for a certain kind of society. Different principles would be appropriate for a society under different circumstances (e.g., one not characterized by the fact of reasonable pluralism), or different subjects (e.g., the international domain, local justice, etc.). The society in question has certain general features, among them the fact of reasonable pluralism, a certain level of resources (‘favourable condition’), and so forth. I don’t see anything inherently ‘contradictory’ in designing the original position in this way. Now, I certainly can understand why you might object to the way in which Rawls specifies the society in question, as you do later in your post, but that strikes me as a different kind of objection altogether.

    4.
    I agree that aspects of Rawls’s later work, such as the ideas of public reason and the liberal principle of legitimacy, are important in putting the original position device and the conception of justice as fairness in perspective. As I noted in my commentary, Rawls eventually came to see the original position as only one way to satisfy the ‘criterion of reciprocity.’ Moreover, the criterion of reciprocity, and the liberal principle of legitimacy based upon it, place important constraints on how citizens can pursue (their preferred conceptions of) justice.

    Nonetheless, the question of the justification of principles of justice remained central to Rawls’s project, even in his final writings. My worry with dismissing ideal theory altogether is that doing so might leave us without any satisfactory way of justifying principles of justice. Perhaps the original position isn’t the best strategy for justifying principles of justice (I’m actually somewhat ambivalent about it myself). But I’m not sure how simply focusing on particular situations is a viable alternative. Moreover, I am sceptical that Sen himself manages to do without ‘ideal theory’ altogether. His use of Smith’s ‘impartial spectator’ seems to be playing a justificatory role for him quite similar to the original position (and seems similarly ‘ideal’ in nature), as Charles pointed out in his comment.

    In short, despite the serious challenges that your raise, I do not think that we should abandon ideal theory when thinking about justice. Perhaps I simply have a different assessment of the history of political philosophy over the past 40 years than you do.

  11. Blain,

    Just a few quick responses to your thoughtful remarks:

    (1) “To use your example of contaminated drinking water, I see nothing in Rawls’s theory that would prevent people committed to it from focusing on addressing this problem before attempting to secure the basic liberties”

    But we could extend the example of clean drinking water to healthcare more generally (which, for Daniels and the later Rawls, falls under the second principle). I don’t think one can establish, via the thought experiment of the OP, that prioritizing the equal basic liberties over healthcare is a requirement of justice. Rawls of course can do this because he assumes everyone is healthy! When he does drop that assumption in PL he just sticks healthcare under the principle of fair equality of opportunity. But once we drop the assumption that everyone in society is healthy I think the question of what the proper weighting is between liberty and healthcare is much more difficult to establish (and can’t be justified by appeal to the OP).

    My own view is that our stance on what the appropriate balance is between distinct primary goods should be (both morally and politically) *provisional*. Hence why I don’t like the constraints of the serial ordering of primary goods established via an abstract thought experiment we can do in isolation without important empirical information.

    (2) “My point merely was that satisfying the first principle of justice as fairness requires only that the basic liberties need to be realized to an adequate degree for all citizens.”

    Much of course depends on the details of what one takes that “adequate degree” to be. So libertarians, for example, will argue that an adequate provision of property rights will basically mean that the re-distributive aspirations of the second principle of justice will be ruled out (Narveson made this kind of objection).

    Rawls’s response to this line of argument (in JAF: A Restatement) is to add some more details about which kinds of right to property are included in the first principle and which are not. So he excludes the rights to ownership of the means of production and external recourses. And his justification for this one that takes a *purposeful* approach to the basic liberties, an approach that goes beyond the concerns of liberty itself . He argues that such an extensive right would undermine important social interests- namely, a suitable degree of social and economic equality.

    Rawls’s discussion of the constitutional protection of property transcends the logic of his defence for prioritizing liberty over all other values. Now I like Rawls’s move on the issue of how far property rights ought to be extended in the first principle, it is an approach I am sympathetic to. And I think we should take such a purposeful approach to all rights (e.g. freedom of expression, etc.). Thus I think it is a mistake to serially order liberty and claim you can only limit liberty for liberty’s sake.

    (3) “I’m afraid that I still don’t see how the assumption of ‘favourable conditions’ violates the constraints of the veil of ignorance. The parties simply are stipulated by Rawls as selecting principles for a certain kind of society”.

    Sen (plausibly I believe) describes Rawls’s project like this (on p. 54):

    “So what is fairness? This foundational idea can be given shape in various ways, taking note of the interests and concerns of others as well, and in particular the need to avoid being influenced by our respective vested interests, or by our personal priorities or eccentricities or prejudices. It can broadly be seen as a demand for impartiality”.

    I think it is contradictory for Rawls to invoke the notion of impartiality (which the veil of ignorance and OP attempt to do) and yet also invoke stipulations like “assume the society is affluent enough to prioritize liberty” and “assume society is closed” and “assume everyone is healthy”. These assumptions are problematic because they bias the parties’ deliberations by catering to the personal priorities (even eccentricities) which we may have if we imagine living in a rich, closed, fully compliant society of healthy persons. Only in such a contrived scenario would we really come to the conclusion that fair equality of opportunity should be assigned lexical priority over the difference principle (see Arneson’s “Against Rawlsian Equality of Opportunity”). The idea that justice requires us to prioritize the goal of ensuring that persons with the same native talent and ambition should have the same prospects of success in the competition for positions of advantage over the difference principle is an eccentricity and prejudice.

    (4) “My worry with dismissing ideal theory altogether is that doing so might leave us without any satisfactory way of justifying principles of justice.”

    I appreciate that worry, but I think the costs of fixating on what the principles of justice are have far outweighed the benefits. So perhaps we need to set different aspirations for a theory of justice (and for us as political philosophers), which is why I am interested in (and sympathetic to) the argument Sen is advancing.

    Cheers,
    Colin

  12. Colin,

    Thanks for your further comments, and my apologies for taking so long to reply.

    1.
    A general thought on your construal of Rawls’s approach to thinking about justice: I think that you are mistaken if you are attributing to Rawls the idea that the principles of justice are to be understood as ‘immutable’ or somehow ‘beyond revision.’ They are ‘provisional’ in that they are ideas that are meant to be part of the democratic debate over what kind of society we should be trying to create. The original position device (at least within the context of political liberalism) merely is meant to provide us with a rigorous way to understand the underlying justification for the principles of ‘justice as fairness’ (which Rawls recognizes is not the only possible political conception of justice), including how those principles realize the ‘criterion of reciprocity.’ “The ideal of a just constitution is always something to be worked toward” by citizens in a democratic society (Rawls, “Reply to Habermas,” p.154).

    Moreover, I still see no reason to think that ‘important empirical information’ cannot play a decisive role in determining how to implement the principles of justice in particular circumstances – or even whether the principles of the special conception of justice as fairness can even apply to a society under certain circumstances. My worry about fixating too much on contingent empirical circumstances is that the principles of justice end up lacking adequate justification, and instead become ‘ad hoc’ in nature.

    2.
    Regarding your comment: Rawls’s “justification for this [the right of personal property] takes a *purposeful* approach to the basic liberties, an approach that goes beyond the concerns of liberty itself … Rawls’s discussion of the constitutional protection of property transcends the logic of his defence for prioritizing liberty over all other values.”

    I disagree with this interpretation. The justification for the principles of justice – including the set of basic liberties, and their priority vis-à-vis the other principles – are all grounded on the overriding interest that the parties have in the original position in securing the ability of the people whom they represent to exercise adequately their two moral powers over the course of a complete life. Thus all of the basic liberties are defended by a ‘purposeful’ approach, namely, their relation to citizens’ ability to exercise their two moral powers. This is why Rawls (in PL onwards) focuses on specific liberties, the roles of which can be explicated clearly with reference to the moral powers (in contrast to his account of the first principle in TJ).

    3.
    Regarding: “I think it is contradictory for Rawls to invoke the notion of impartiality (which the veil of ignorance and OP attempt to do) and yet also invoke stipulations like “assume the society is affluent enough to prioritize liberty”… [etc.]”

    Again, I just don’t see anything inherently ‘contradictory’ in the description of the society for which the parties in the original position are selecting principles of justice. They simply are selecting principles for a particular subject, namely, a society characterized by certain features. Where is the ‘inherent contradiction’ in this? I certainly can understand that you may not find it to be a ‘useful’ way to think about justice, but that is an entirely different kind of criticism.

  13. Blain,

    On the issue of the contradictory commitments of impartiality in Rawls, this morning I started to read through chapter 6 of Sen (ch. 5 was very short!) and there he invokes the difference between “closed” and “open” impartiality. I’ll save making any comments on that until the group addresses that chapter next week, but I think Sen addresses points similar to the concerns I have. Namely, that it is contradictory to invoke the veil of ignorance (to help people see beyond their personal vested interests and goals), and yet, at the same time, stipulate that the parties in the OP are only concerned with the “membership entitlement” (Sen’s phrase) of healthy people in a closed, rich, fully compliant society. Such closed impartiality is prone to parochialism.

    But we can save a discussion of open and closed impartiality for next week when the reading group covers ch. 6.

    Cheers,
    Colin

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