Several years back, in a flurry of activity, I set out to read the fundamental books in the social contract tradition. I read Rousseau, I read Locke, and I read Hobbes. Around the same time, I set a goal of reading John Rawls’s A Theory of Justice, and I got as far as purchasing a copy and reading the first twenty or so pages before I was stopped by the wall of dense, complex theory and prose. There it was, staring back at me from my shelf, a tome, a massive reproach, a hole and a gap in my knowledge of 20th century philosophy.
As the parent of young children, I’ve found that my ability to read much of anything over the last few years outside of the materials I read for work has dwindled to almost nothing. I sometimes see friends posting year-end charts recording all the books they’ve read; my own, once robust, would look almost entirely blank over the last several years. My usual intake of reading material on nights and weekends includes little more than the instructional manuals of various appliances and power tools immediately necessary for household operations, peered at in the dim light of the basement or garage, with the kind of quizzical look on my face that wonders how it is possible that a snowblower’s carburetor can at once be intricate and unseeable by the human eye. For me, as a middle-aged father of small children, reading has become more of a utilitarian pastime.
But there sat John Rawls on my shelf, and I’ve thought about him more and more as I think about the fascinating relationship between philosophy, political theory, schools, and society. I was particularly curious if my previous encounter with Rawls, when I’d been immediately turned off by his thinking, was fair or not. When I’d first read Rawls several years ago, I’d found his original position to be too rationalistic, a “bloodless abstraction” in the words of some contemporary philosopher whose name escapes me. His prescriptions seemed so bland to me, so basically liberal-democratic, it was hard to understand why his thinking had proven so influential. And, to be honest, I couldn’t get a stinging critique out of my head, one written by the notorious Chicago political philosopher Allan Bloom, he of “The Closing of the American Mind” fame. Bloom’s critique was knocking around somewhere in the back of my head still, to the effect of Rawls’s original position acting more as a milquetoast justification for the modern liberal welfare state than as an honest attempt to rethink the grounds of society as the true state of nature philosophers had done during the Enlightenment. I remembered Bloom had some line in his piece akin to, “For all its bells and whistles, A Theory of Justice is nothing more than a defense of the modern welfare state.” It was this blistering attack – paired with the general incomprehensibility of Rawls’s prose – or perhaps of any text other than a dishwasher repair manual to my parenting-addled brain after about 6pm in the evening – that finally led me to put Rawls back on the shelf for a two year period.
But then, blissfully, this past month I found myself with several days of peace and quiet, and, in my usual eccentric style, after plowing through a Peter Heller novel as if to remind myself that I can still read English (Peter Heller’s books being perfectly paired, down to the sub-atomic particle, with my own reading DNA preferences – river trips, mountains, airplanes, laconic heroes who mysteriously all have attended Dartmouth College, guns usually coming out somewhere in the last third), I dragged out that several-pound slab of political thought out of my luggage. It was time to try Rawls again.
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There’s a lot to A Theory of Justice, but I think the best way to approach this book is to focus on the analysis of one major aspect of it: Rawls’s view of human nature or essence, and how that relates to his conception of justice.
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Rawls begins by defining his quest as locating the proper arrangement of society to support social justice, which he identifies as embodying the way of assigning rights and duties to citizens and to identifying the proper distribution of “benefits and burdens of social cooperation” (4). And immediately he identifies his focus as being not on the conduct of individuals but on the superstructure of society: on the way that the basic institutions (such as the laws, the constitution, etc.) support this assignment of rights, duties, and shares. Justice, he says, is the first virtue of institutions, just as truth is the first virtue of thought. Rawls also contrasts his definition of justice with Aristotle’s; while Aristotle terms justice as the absence of pleonexia – taking someone else’s reward, for instance, or denying him his due in some way, Rawls’s definition of justice is concerned more with understanding just what exactly is a person’s “due” in the first place.
When I first was reading Rawls, I could not get past the infeasibility of his project, particularly his derivation of political institutions from the rather bloodless, rationalistic and wildly improbable “original position.” There has been a great deal of ink spelled on this topic going straight back to the book’s publication in 1971, and it’s safe to say that my reservations are common. But gradually I began to realize that it’s something of a mistake to hold the original position to the standard of Hobbes’s or Locke’s or Rousseau’s state of nature as a realistic interpretive standard for the origination of a social contract. The original position is not a starting point for ontological assumptions about how to erect political institutions, let alone for grounding social agreement. In fact, when you look closely, Rawls never intends the original position to be used this way.
Specifically, Rawls regards the original position as something of a device for clarifying and making one “feel the full force” (as he puts it) of our decisions about social justice. It’s a lens that – because it is so cleansed, so artfully restricted in scope, so finely honed to have isolated just the variables he wishes to test – will very, very powerfully magnify any minute shift in moral principles in order that we may continually assess whether they fit what we want. In a sense, Rawls starts from what he calls “our considered judgements” about what is just in a society; he mentions a number of them (in a way that is surprisingly unsystematic and off-the-cuff; his suggestions are also surprisingly conventional and middle-of-the-road: religious tolerance, racial equality, freedom of thought, etc.). But the question for Rawls is how to get from here to the creation of a truly just society, one that has built our most important beliefs about justice straight into its superstructure.
In fact, his purpose is even deeper than this – because, as I’ll get to later – Rawls, self-consciously following Kant in this respect – believes in a kind of innate morality accessible to all humans at their best and highest.
To derive this basic structure of society, Rawls invents the device of the original position in order to clarify a society’s sense of justice in a broad sense – to make us check to see if our specific, narrow beliefs about justice align with broader, more generalizable principles. In this sense, the original position is a device to continually ask the question: is our belief generalizable to a larger principle? What is that principle – and is it one we would subscribe to? If not, perhaps we must consider just what the larger principle is that we would accept, and then attempt to bring our more localized and specific beliefs into alignment. When all of our narrower and specific beliefs are in alignment with the larger generalizable theories that we also believe in, we are in a kind of equilibrium – which Rawls calls “reflective equilibrium.” This is the state or goal that Rawls is aiming for the entire civilization to have.
As a result, the original position is not meant to approximate the state of nature as a starting point for society, but instead to represent a kind of mental heuristic, a lens that allows us to quickly check our most cherished beliefs about social justice to see if they are spreadable across all of society; do they result in broader principles that we and all other humans would accept? In fact, since reflective equilibrium is not only a goal but a method, Rawls freely admits that he not only constructs the requirements of the original position purposefully to load the deck in favor of “our considered judgments” about justice, but that he intends to be able to modify the original position should the pursuit of reflective equilibrium show him that he doesn’t actually like what the original position results in.
This is not to say that the original position is simply a thought experiment; Rawls in fact intends it to be a political starting point – and a device for use in continual clarification of political goals and means. It’s just a very different kind of starting point from the state of nature as envisioned by Enlightenment contract theorists, and that’s most easily seen by looking at the specifics.
So – what are the specifics of Rawls’s deliberations as he moves toward his own reflective equilibrium?
While Hobbes and Locke both possess far “earthier” visions of human nature, what counts for Rawls about humans is the fact that they are, as he puts it, “moral persons” – free in the sense that they are “autonomous,” equal in the sense that they are all capable of moral choice, rational and capable of being “objective,” and yet also innately self interested and focused on pursuing their own rational life plan. Yet it is this autonomy that each person possesses, this “moral personality,” that counts most. At one point, he writes, “Those who can give justice are owed justice” (446). His view is perhaps best summed up in the famous opening to the book: “Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override” (3).
In most of this, Rawls self-consciously follows Immanuel Kant. Rawls includes an entire section in the book describing his connection to Kant. He writes that justice as he envisions it derives from a “desire to express most fully what we are or can be . . . free and equal rational beings with a liberty to choose” (225). In fact, he writes that the original position is an attempt to literalize Kant’s categorical imperative: the original position “tries to present a natural procedural rendering of Kant’s conception of the kingdom of ends and of the notions of autonomy and the categorical imperative” (233). This “detaches from its metaphysical surroundings” Kant’s structure “so that it can be seen more clearly and presented relatively free from objection” (233).
Because of this view, what does *not* count for human beings is what he calls “contingencies” – that is, the accidents of birth that result in different “starting points” in society. These are many of the conventional identity-based labels of his time and ours (race, gender) as well as even deeper differences, such as temperament and even persistence and willingness to work hard, as well as specific conceptions of the good, all of which Rawls also sees as fundamentally inessential to the human essence. Many of these characteristics, Rawls terms “arbitrary from a moral point of view.” There is an interesting contrast here with a thinker like Locke, who saw man as having a natural right not only to the protection of his life, but to the rightfully gained property that became his by “mixing his labor” with the fruits of the earth. For Locke (and for many other Enlightenment thinkers), differences in men’s temperaments and capacities were not only normal, but were considered essential core parts of their nature, which should be protected. But for Rawls, these elements are at best accidents of nature, but often the result of disparities in starting social position or child rearing.
Because of these beliefs, Rawls designs his original position to strip humans of these contingencies. As a result, he creates his famous “veil of ignorance,” in which the participants in the original position know almost nothing about themselves. The only elements that they do know are the ones that count for Rawls: that they are all rational, capable of a sense of justice, and therefore equal. They are also unaware of their conception of the good; Rawls says that they have “mutual disinterest” – they are not trying to outbid or “get” each other, only to maximize their own score of happiness.
Not only does Rawls thus align the original position with his conception of the important elements of human beings, but he also sets up the original position to foster a kind of perfect environment to foster the formation of just principles. He sets things up to reflect what he calls the “circumstances of justice” – conditions of moderate scarcity, and conflicting claims to the advantages of social cooperation. He also requires other restrictions – for instance, the society being set up in the original position is isolated from any other hostile, warring states; he also writes that we are to imagine the society will be reasonably prosperous (again, “moderate” scarcity prevails, not widespread scarcity). It’s important to note that Rawls is not starting from utopian premises, exactly; he writes that while men may leave the original position and enter reality to find that some of them have sentimental attachments to each other, they do not start from this premise in the original position. They are not envious of each other; in fact, they are “mutually disinterested” (112). Rawls is surprisingly realistic about human beings: they are rational but self-interested; he flatly states that these men in the original position are not willing to sacrifice their own plans for the good of others. This is the reason why principles of utilitarianism are rejected. It’s also important to note that Rawls’s original position participants are without ties of family or clan; it is man as an individual, autonomous agent that Rawls takes to be fundamental. It is the individual’s capacity for justice and for rational choice that is most salient for Rawls.
Given the circumstances of justice, there is a need to create principles of justice – that is, there is a need to “work things out.” And given the veil of ignorance, none of the participants in the original position can try to tailor the principles to his own specific situation. That is, if one knows that one is good at making money, he might try to push for principles of justice that favor the moneymakers. Most importantly, because he does not know anything about his prospects, Rawls maintains that he will promote Rawls’s famous second principle of justice – the key part of which is the so-called “Difference Principle.” This states that any inequalities must benefit the least advantaged. The intuitive idea is that, because I don’t know anything about my prospects, I will “play it safe” and vote to protect the least advantaged, in case I am one of them.
There are several further restrictions Rawls includes. Most important of these is that all men in the original position must unanimously agree on the principles of justice before leaving the original position and entering real society. Additionally, they must agree that these principles are to be adhered to what Rawls calls “strict compliance,” and that they are permanent. These are more restrictions, it seems to me, to force us to clarify our very best and most ideal conceptions of justice.
There are many, many consequences of Rawls’s understanding of what counts for human beings. The most striking of these consequences is his difference principle, which is essentially a principle of redistribution. Rawls outlines four different possible interpretations of his second principle, and the one he selects, democratic equality, ensures that neither initial starting place in society nor innate natural talent gives anyone an undue advantage over others. As I wrote before, Rawls takes a fairly extreme position that natural endowments are both morally arbitrary and not an innate part of the core of what matters for a human being as the subject of justice. He writes, “We do not deserve our place in the distribution of native endowments any more than we deserve our initial starting place in society” (89). As a result, any disparities resulting from native abilities are deeply suspect: If “distributive shares are decided by the outcome of the natural lottery . . . this outcome is arbitrary from a moral perspective” (64).
Even more strikingly, for Rawls even our character is not truly “ours”: “That we deserve the superior character that enables us to make the effort to cultivate our abilities is also problematic; for such character depends in good part upon fortunate family and social circumstances in early life for which we can claim no credit” (89). There are a whole host of objections to this extreme position which I will not even begin to outline here; they are well-established. Suffice to say that this rejection of even one’s personality or character as a kind of inessential “contingency” is why the people in Rawls’s original position – who’ve been accordingly stripped of knowledge of such an inessential as their own temperament – seem so bloodless.
This also requires Rawls to engage in what feels to me like hair-splitting, as he tries to account for the obvious fact that one’s character surely “belongs” to him in some meaningful way: “To be sure, the more advantaged have a right to their natural assets, as does everyone else; this right is covered by the first principle under the basic liberty protecting the integrity of the person.” As a result, he assures us, “the more advantaged are entitled to whatever they can acquire in accordance with the rules of a fair system of social cooperation” – a system, which, he reminds us, need offer no assurance that the well-endowed can have free reign to pile up money at the expense of others. So perhaps we do “own” our character and our abilities, but that doesn’t mean for Rawls, as for Locke, that we own the fruits of our labor. Those fruits belong to the state.
Thus Rawls rejects three of the four principles he proposes which interpret the division of distributive shares, including that of what he calls “the liberal interpretation” – which is essentially a true meritocracy: a society in which all positions are open to all members of similar natural abilities regardless of their starting points in society. Although this society tamps out the unfairness of starting position, it maintains the (for him) morally arbitrary element of natural talent and character. The approach he approves of ultimately, that of so-called democratic equality, is embodied in the redistributive effects of the difference principle. Although Rawls is not prepared to go so far as mandating equality by simply disallowing differing outcomes (by embracing communism, for instance), he is at least prepared to heavily control the effects.
Certainly there is much more to say about Rawls beyond his conception of the ideal circumstances of justice. I think particularly about the many considerable political implications of his ideal system of justice. Rawls’s insistence on what he terms “ideal theory” – particularly his insistence on strict compliance – sidesteps a number of thorny, real-world questions of justice and of political viability. There is also much to say about the tension between economic incentives and redistribution economic, as well as about Rawls’s striking conception of what he calls the “primary goods” which rational humans desire (one of the main ones he believes society should try to promote, curiously enough, is self esteem). The lingering question, of course, in the head of any good reader of Hobbes or Locke or Rousseau is whether the state of nature is not a far better device for establishing a system of justice in a good society than the original position, and whether Rawls’s focus on humans as autonomous, rational agents capable of choice – and no more – really creates a better system of justice than other, fuller conceptions of human essence or nature.
As a way of founding the good society comprised of real human beings, I think Rawls’s device is totally implausible. But as a kind of mental tune-up of our late-liberal society, I think the original position is illuminating. It forces us to ask important questions of ourselves: What are the ideal principles of justice, in a perfect situation requiring that we act justly, and requiring us to create laws that everyone at all times and places, for all time, must abide by? This is important – it’s asking us about Kant’s categorical imperative – if we had to legislate for all time, respecting all human beings as ends in themselves and not as means – what sort of laws would we create? What is due to each human being in the ideal circumstances? What matters about humans as we legislate for justice, and what does not matter? In a sense, A Theory of Justice is important because ideal theory is important. It is a way to remind ourselves how we should act and treat others if we are at our best.
Rawls’s original position is, like Plato’s Cave, just the sort of brilliantly simple yet deeply rich device that is both memorable and illuminating and useful. It’s hard to forget Rawls’s vision once you’ve read it – even if you don’t agree with the particulars of his conclusions.