John Rawls: “Justice as Fairness”

1. Justice as a virtue of social institutions [365.1]

I shall focus attention, then, on the usual sense of justice in which it is essentially the elimination of arbitrary distinctions and the establishment, within the structure of a practice, of a proper balance between competing claims. [365.2]

2. The Two Principles [366.1]

a. LIBERTY PRINCIPLE: Each person participating in a practice, or affected by it, has an equal right to the most extensive liberty compatible with a like liberty for all

b. DIFFERENCE PRINCIPLE: Inequalities are arbitrary unless

i. it is reasonable to expect that they will work out for everyone’s advantage

ii. the positions and offices to which they attach are open to all

The kind of inequalities that cannot be justified are those where the justification is that others are benefited but not the people at the bottom (the kind of justifications that utilitarianism allows)

3. The Justification Procedure for the Principles [367.1]
Some justifications proceed a priori or (in the case of the social contract) historically unconvincing. Rawls’s take:
Imagine a society of rationally self-interested families (with the added proviso that they exhibit no envy) who have roughly similar needs and interests who have to come up with principles to assess complaints against established institutions. They are held by chains of commitment, that is, they understand that they themselves will have to abide by the principles once accepted, even if their circumstances change drastically. That is:

The restrictions which would so arise might be thought of as those a person would keep in mind if he were designing a practice in which his enemy were to assign him his place. [368.2]

The rationality and self-interestedness of the parties mirrors the circumstances in which issues of justice are likely to arise.
The bindingness of the contract mirrors the constraints which having a morality would impose on persons so situated.

Crucial claim: people in this situation would select Rawls’s two principles

4. Contrast with Hobbesian social contract [369.1]
Is this view like the Greek/Hobbesian one of justice as a compromise (or modus vivendi) whose stability depends on the balance of power?

No, for several reasons:

First, the self-interestedness of the parties is not meant to represent any claim about general human nature, but rather just to mimic the circumstances in which issues of justice actually arise.

Second, unlike with most contracts in the tradition, the point is not to establish an actual society, but rather to assess principles of justice.
Finally, this is a thought experiment that can be carried out by anyone any time. It doesn’t happen to specific people at a specific time.

5. The Duty of Fair Play [370.2]
One has a duty to obey the laws of just (fair) institutions simply because they are fair, whether one has agreed to them or not. “It is sufficient that one has knowingly participated in and accepted the benefits of a practice acknowledged to be fair” [371.1]. Free riding is wrong because one accepts benefits without the burdens that usually accompany them (and do for others).

6. Contrast with Utilitarian concept of Justice [373.1]
Standard objection to utilitarianism: it could allow the most wildly unjust systems (including slavery) if they happened to produce the maximal happiness given the circumstances.
Sophisticated utilitarian response: principles of justice can actually be justified on utilitarian grounds. That is, we should care about justice only if it maximizes happiness. This is contrasted with Justice as Fairness, which prioritizes justice.

7. The Social Contract expresses Justice where Utilitarianism cannot [374.1]
Discussion of slavery: Utilitarian arguments against slavery miss the point. They argue that slavery is unjustified if and when the interests of the slaveholders are outweighed by the suffering of the slaves. However:

The conception of justice as fairness, when applied to the practice of slavery with its offices of slaveholder and slave, would not allow one to consider the advantages of the slaveholder in the first place. [374.1]

That is, the slaveholder has no moral title to the advantages of slave owning in the first place, so we would be committing a “moral fallacy” if we were even to consider them.

8. Concluding comments [376.2]