The Inequality Created by Rawls’ “Justice as Fairness”

By Cuong Q. Nguyen

American political philosopher John Rawls developed a concept of justice as fairness in his influential work, A Theory of Justice, to answer the existing question: what is just or right with respect to the allocation of goods in society.  This conception of justice as fairness borrows elements from Kantian philosophy to justify the method of morally evaluating political and social institutions.  Rawls argues that individuals would intrinsically support the proposal of distributive justice for a variety reasons.  Primarily, Rawls suggests that individuals in a given society would agree on the equal distribution of goods if they were placed in a “neutral and fair situation.”  This neutral and fair situation is coined by Rawls in Part Two of A Theory of Justice as the “original position.”  The original position plays a similar role to that of “nature” in the social contract tradition of Thomas Hobbes, John Locke, and Jean-Jacques Rousseau.  Rawls hypothesizes that all individuals placed in the original position would be bothered with the negative consequences of being the worst off and would create a system which would require a distribution of resources in order for everyone to benefit from any possible social inequalities.  Though Rawls provides a valid argument for just distribution of goods, philosophers Ronald Dworkin and Thomas Nagel raise interesting questions opposing his conception of distributive justice.  Both Dworkin and Nagel have deep reservations about the original position, which Dworkin describes as “ignorant of interests beyond a chosen few” (Dworkin 292).  This response will evaluate Rawls’ conception of justice as fairness and the critiques of Dworkin and Nagel.  I will then continue Dwork and Nagels’ critique of Rawls’ theory of distributive justice from the standpoint of egalitarianism.

The original position continues the tradition of social contract theory established by Hobbes, Locke, and Rousseau.  In social contract theory, individuals within the state of nature agree to conditions that define fundamental rights and duties of citizens within civil society.  In Rawls’ theory, Justice as Fairness, the original position is akin to his state of nature.  It is hypothetically designed to reflect the principles of justice that would be formulated in a civil society founded on fair and free cooperation between individuals.  In the original position, individuals are placed behind a veil of ignorance where no one knows anything about themselves, their natural abilities, or position in society.  Individuals know nothing of their race, gender, nationality, or personal tastes.  Behind the veil of ignorance, individuals are morally equal and rational beings.  Though individuals within the veil of ignorance know nothing about themselves, they do know that beyond the veil of ignorance, individuals will be different from one another by characteristics such as natural ability, wealth, gender, race, and culture.  We have to ask ourselves, given such little information, how would these individuals reach an agreement and what possible principles of justice would they devise and agree with?  Rawls argues that these individuals would agree on two principles of justice: the Liberty Principle and the Difference Principle.  Both principles are, in a sense, along Kantian justifications since autonomy is the foundation for both principles.  The Liberty Principle states “each person is to have an equal right to the most extensive basic liberty compatible with similar liberty for others” (Rawls 282).  The Difference Principle states “social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage and (b) attached to positions and offices open to all (Rawls 283).  These principles demonstrate the desire of individuals to select a course of action which minimizes the negative consequences of any worst possible outcomes.  Both the Liberty Principle and the Difference Principle correlate to justify equal liberties within this hypothetical civil state.

Dworkin, in “Justice and Hypothetical Agreements,” questions the practicality of the original position with regards to justice as fairness.  Under Rawls’ view, justice is an agreement between individuals behind the veil of ignorance.  But is justice merely an agreement?  Dworkin refutes Rawls’ claim that justice is not an actual agreement.  In hindsight, it is a hypothetical one.  The very notion that justice is conceived under a hypothetical agreement raises questions about the practicality of the original position and veil of ignorance.  “A hypothetical contract is not simply a pale form of an actual contract; it is no contract at all” (Dworkin 289).  Dworkin states that hypothetical agreements, unlike actual agreements, have no binding force to make sure individuals comply with the agreements they have made.  Dworkin’s rationale makes a lot of sense.  Philosophers create hypothetical situations and ideals thought experiments that always work under the special circumstances philosophers impose but generally fail in the context of reality.  Is there any redeeming quality of Rawls’ original position and veil of ignorance than in understanding justice as fairness?  Rawls conception of justice as an agreement (or contract under classical social contract theory) should not be seen as the foundation of Rawls’ theory but rather as a guide towards the principles of justice.  In this situation, Rawls views the principle as the natural right of all people to equal concern and respect.  The original position and veil of ignorance plays a vital role in guiding one towards the principle of justice because it provides a better understanding of this right to equal concern and respect.

The original position may now be seen as a device for testing these competing arguments. It supposes, reasonably, that political arrangements that do not display equal concern and respect are those that are established and administered by powerful men and women who, whether they recognize it or not, have more concern and respect for members of a particular class, or people with particular talents or ideals, than they have for others (Dworkin 294).

In his article, “Internal Difficulties with Justice as Fairness,” Thomas Nagel similarly critiques justice as fairness by attacking Rawls’ original position.  Unlike Dworkin who questioned the practicality of the original position, Nagel questions the strength of the constraints placed on the original position.  In justifying the restrictions on the original position, Rawls characterized the limitations as weak and controversial, and thus the only principles individuals behind the veil of ignorance could agree upon were the liberty and difference principle.  Rawls states the aim of the veil of ignorance is “to rule out those principles that it would be rational to propose for acceptance, however little the chance of success, only if one knew certain things that are irrelevant from the standpoint of justice” (Nagel 297).  One of the constraints in the original position, ruling out the knowledge of ones conception of the good, seems neither weak nor uncontroversial.  In fact, it creates an imbalance by favoring a certain type of morality.  Nagel argues that this constraint of the original position establishes favoritism for individuals whose conception of the good is more individualistic.  “The refusal to rank particular conceptions of the good implies a very marked tolerance for individual inclinations” (Nagel 298).  If the constraints that Rawls applied to the original position in which a bias is implied, then justice is not achieved from the agreement within the veil of ignorance.  The only thing achieved is an unfair doctrine easily described as “injustice.” “The suppression of knowledge required to achieve unanimity is not equally fair to all the parties, because the primary goods are not equally valuable in pursuit of all conceptions of the good” (Nagel 299).

Like the critiques of Rawls’ theory of justice as fairness by Dworkin and Nagel, I also find considerable flaws with the original position, the foundation of Rawls’ theory.  Unlike Dworkin, who considers the original position to be impractical, and Nagel, who considers it to be biased, I feel there is an underlying hypocrisy with the original position, justice as fairness, and Rawls’ egalitarianism.  The original position is a thought experiment created by Rawls to substantiate justice as fairness.  I agree with Nagel that ruling out knowledge of one’s conception of the good is a poor constraint that makes original position favor individualistic conceptions of the good rather than the good for everyone.  Under the political doctrine of egalitarianism, individuals should be treated as equals from birth.  If that is so, then Rawls’ egalitarianism is in direct conflict with the principles of justice he created.  Rawls is essentially justifying and endorsing inequalities if and only if they are to benefit everyone in the civil society (if he is to maintain the premises of the original position).  But are the inequalities created in direct violation with the very idea of justice as fairness?  How could a theory coined justice as fairness endorse any sort of equality whatsoever?  The theory promotes just distribution of social goods and equal liberties, yet it allows and endorses the inequalities for the greater good of just distribution.  For a theory of distributive justice to have legitimacy, it cannot allow injustices of inequality to promote justice and equality.  Doing so would merely be hypocritical.  “Why should parties in the original position be prepared to commit themselves to principles that may frustrate or contravene their deepest convictions” (Nagel 299).  Justifying inequalities is a dangerous slippery slope and, by definition, not egalitarian.

In conclusion, Rawls theory of justice as fairness is considerably weakened by the original position.  Philosophers Ronald Dworkin and Thomas Nagel provide clear and reasonable arguments to show the weaknesses of Rawls’ thought experiment.  In hindsight, the original position fails due to the impracticality of the ideal fair situation and the bias created by the constraints on the original position.  Though I believe Rawls’ distributive theory of justice to be folly, the original position beautifully continued the social contract tradition founded by Hobbes, Locke, and Rousseau and influenced a variety of philosophers and other intellectuals today.  I believe that if philosophers were to review Rawls’ theory of justice as fairness and considered changing the constraints of the original position to eliminate the inequalities created by the bias for individualistic conceptions of good, there is a possibility of justifying just distribution of social goods.

Works Cited

Dworkin, Ronald. “Justices and Hypothetical Agreements,” from “The Original Position, in What is Justice, edited by Robert C. Solomon & Mark C. Murphy.

(New York: Oxford University Press, 2000).

Rawls, John. “Justice as Fairness,” from “Justice as Fairness” and “A Theory of Justice,” in What is Justice, edited by Robert C. Solomon & Mark C. Murphy.

(New York: Oxford University Press, 2000).

Nagel, Thomas. “Internal Difficulties with Justice as Fairness,” from “Rawls on Justice,” in What is Justice, edited by Robert C. Solomon & Mark C. Murphy.

(New York: Oxford University Press, 2000).

Cuong Q. Nguyen (’12) is a Philosophy major at Johns Hopkins University.


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