This article is written by Ayushi Dubey, a third-year student of Institute of Law, Nirma University. The article gives a detailed account of John Rawls’ theory of Justice with relevant examples for a clearer understanding. 

Introduction 

An American moral and political philosopher, John Bradley Rawls is known as the philosopher of Liberal tradition. Born and brought up in Baltimore, he was the second son of William Rawls, who was one of the most prominent attorneys of Baltimore. Rawls has published three books, out of which “A Theory of Justice” is the most famous one. The book focuses on the theory of the Original Position in attaining justice. 

In order to understand Rawls idea of justice, we need to have a pretext of the idea of another famous political thinker, Emanuel Kant. Kant says that just laws arise out of the contract. These contracts are not the usual and actual contracts which people make when they come together. These contracts are exceptional in nature. The question is why are they different. Kant says that when different people gather together to make constitutional conventions, then all of them have different interests and demands. Also, people have different bargaining power so, the one with good bargaining power would have heavier say in the contract. Therefore, the actual social contracts do not necessarily be just laws. These contracts will only highlight differences and would be special to them who have more knowledge of law and politics. 

So, this concludes that though Kant is a contractarian he doesn’t trace the origin of any social contract that gives rise to just laws. Which means that Kant’s exceptional contract is a hypothetical contract since it never happened. And therefore, an obvious question arises, “What is the force of a hypothetical contract?” The answer to this question lies in the theory of John Rawls. 

The concept of Veil of Ignorance

Rawls theory of justice is parallel to Kant theory of justice in two ways. Firstly, Rawls, like Kant is also a critique of Utilitarianism. And secondly, like Kant, Rawls also follows the principle of a hypothetical social contract to achieve justice. Rawls, to explain his idea of a hypothetical social contract introduces a device called the “Veil of Ignorance.” 

Rawls says that imagine a situation where people have gathered to decide collective principles of justice to govern themselves. There would be different ideas and suggestions. The idea and suggestion would be affected by the kind of people in the discussion. There would be people who are rich, poor, strong, weak etc. All of them would have different interests which would reflect in this idea. This discussion would give rise to a situation where a compromising idea of justice would be chosen and which would not necessarily serve the purpose. Therefore, Rawls says instead of this, imagine we gather together in an “original position” of equality, where everybody is equal. This equality is assured through the veil of ignorance. The basic idea of the veil of ignorance is that people are behind a kind of veil and without knowing certain particular facts about each other. And by this, nobody would have superior bargaining power in the collective idea of justice. 

Hence, Rawls idea of justice is “a hypothetical social contract, made behind the veil of ignorance in the original position of equality.” 

Moral force behind the Hypothetical Social Contract

The first question that would arise in a mind about Rawls’ hypothetical social contract is “what would be the moral force behind this contract”. There are certain reasons as to why any promise should be kept or fulfilled. In order to abide by a contract, there shall be some force behind it. Similarly, there should be a moral force behind the hypothetical social contract which never happened. To answer this question, we first need to look at the moral force behind the actual contract. What is it that makes an actual contract binding on parties?

There are two ways in which an actual contract generates obligations on the parties in the contract:

1. Consent-based obligation: This points out towards the idea of autonomy. There is involvement of the self in this. If you have consented for a particular agreement then, you have to abide by it. This moral force is self-imposed.
2. Benefit-based obligation: This points out towards the idea of reciprocity. One obliges to fulfil his promise because he has been benefited by the act of opposite party and hence has to fulfil the promise in return. 

But does consent make a contract fair? No, just because someone has consented to the contract that doesn’t necessarily mean that the terms of the contract are fair. Consent might be a result of Undue Influence, Misrepresentation, Fraud or any other form of intentional and unintentional deceive. For example, an old lady consented to sell her property to a man. The price that was decided between the two was half of the actual price of the property. Now, here, though the lady has consented the terms of the contract are not fair since she is not aware of the malice hidden in the deal. In this case, the lady has all the right to end the contract even after consenting. Hence, it is not always necessary that if one has consented for the contract then, he or she has to necessarily abide by it. 

Contrary to this, there is another situation, when a contract is said to take place even if you have not consented for it. A classic example of this could be poor children who start cleaning your car glasses even without your consent. In this situation, you kind of becomes obligated to pay him since you never stopped him while he was cleaning the glass of your car.

Hence, an actual contract derives its moral force by virtue of two ideas:

1. Autonomy- consent based.
2. Reciprocity- benefit based. 

But in real life, an actual contract may fall short of these ideas. The idea of autonomy may fail due to the lack of knowledge among the parties. Whereas, the idea of reciprocity may fail due to the difference in bargaining power. So, Rawls tells us to imagine a situation where the idea of autonomy and reciprocity are not subjected to any conditions or contingencies and are fixed to take place. What would be that contract? Rawls says it would be a Hypothetical Social Contract, made behind a ‘veil of ignorance’ in a state of complete equality. Therefore, according to Rawls principles of justice can only be achieved through this way. Now, the next question would be, what would be the principles of justice?

The Principles of Justice 

Rawls does not give a clear account of what principle of justice should be chosen, but he did talk about the principles which shouldn’t be chosen. 

• Rawls argues that we would not choose the principle of utilitarianism. He says, that we would support individual rights and would not want the majority to tyrannize the minority. We would have a system of equal rights and hence would choose a principle of equal basic liberty. 

What principle would be chosen to govern social and economic inequality?

• Rawls says, to answer this, we need to first agree for equal distribution of wealth and income. This, Rawls says, can be done by agreeing to the qualified principle of equality. Rawls called this principle as the “difference principle”.

Difference principle is based on the idea of distribution. It says that only those inequalities would be considered which are for the benefit of the least well-off. Therefore, all inequalities would not be rejected. If inequality works for the benefit of those who are at the bottom of society then, it should be accepted. 

Rawls Difference Principle in comparison to other rival theories 

According to Rawls, the distribution of income and wealth should not be based upon arbitrary factors which are not in control of an individual. Rather, it should be based upon factors which their own credit. For this Rawls criticised some rival theories. We will consider a common example of a race to understand the difference between all the systems. 

1. Feudal aristocracy: By this Rawls means that the people’s life events are determined by their birth. This may include their place and environment of birth. Birth is a factor which people have no control and hence determining principle on the basis of birth would be arbitrary from a moral point of view. Hence, the result of the race cannot be based upon this system. 
2. Libertarian system: Libertarians believe that everybody should be given equal opportunities to show their talents regardless of their birth. There shall be equality of opportunities in every aspect and all should have the equal right to strive for work of their choice. But Rawls could not agree to this system as well. He opined that if the race you give equal opportunities to everyone then, those who have started from a lower point would never be able to reach equal to others. Therefore, in the race, when people start from different starting points then their endpoint should also be different. 
3. Meritocratic system: In the meritocratic system all are brought on the same starting point i.e. everybody is given equal facilities and privileges to move towards their end goal. For example, providing similar education to all. Then, the race would be fair. But Rawls is not satisfied with this system also, he argued that even if we all start from the same starting point, with the same facilities and towards the same goal then also, there would be some people with extraordinary talents and learning capacities which will help them to do better than the rest of the people.

For example, in a race, the best athlete would win. Therefore, the meritocratic system fights against social barriers but can not overcome the biological barriers that come in between. So, Rawls thinks that for removing the moral arbitrariness, we would require a system which goes beyond this. Many answered that the only way to remove this would be to handicap the best runner. But Rawls says that even this can’t be done since this would dissolve the very purpose of the competition. 

So, the question remains what can be done to remove the moral arbitrariness without dissolving the purpose of the competition? 

Rawls answered this question through his difference principle. According to this principle, you encourage those with extraordinary talents, good fortune and privileged conditions. But you also take into account those who don’t have any of these. You will establish a principle which would benefit people from their luck in their genetic lottery, their place of birth, their talents but only on the terms that it works for the benefit of the least well off. The terms for the fruits of the race would be different for all and hence the result would be based upon the efforts put and the conditions behind those efforts. 

So, for example, Bill Gates can earn whatever money he wants but only on the condition that a part of his income would, in the form of taxes, benefit those who lack the skills that he is blessed with. Rawls further says that those in a better position can never think that they deserve what they have. “Those who have been favoured by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out.” You set up a system where everybody, including those at the bottom, is benefitted by the talents of those who are lucky.

Conclusion 

John Rawls gives account of a system which benefits all sections of the society, equally. He, through his theory, proposed a system where laws and principles of justice are made by the conscious effort of the people who would be governed by those laws and principles. His idea of the veil of ignorance points out to the idea of equality, a system where each individual has equal participation in the making and where there are no biases involved. Further, through his difference principle, he had taken care of those who need special attention after the system is made. His idea is one such ideal which can be chosen to protect the rights of minorities and the least well off. 

References 

1. https://www.britannica.com/biography/John-Rawls
2. https://plato.stanford.edu/entries/rawls/
3. https://owlcation.com/social-sciences/Key-Concepts-of-the-Philosophy-of-John-Rawls
4. https://scholar.harvard.edu/sandel/justice