2.

Rawls's Mature Work: A Theory of Justice (1971)

a. The Basic Structure of Society

The subject matter of Rawlss theory is societal practices and institutions. Some social institutions
can provoke envy and resentment. Others can foster alienation and exploitation. Is there a way of
organizing society that can keep these problems within livable limits? Can society be organized
around fair principles of cooperation in a way the people would stably accept?

Rawlss original thought is that equality, or a fair distribution of advantages, is to be addressed as a

background matter by constitutional and legal provisions that structure social institutions. While fair
institutions will influence the life chances of everyone in society, they will leave individuals free to
exercise their basic liberties as they see fit within this fair set of rules. To carry out this central idea,
Rawls takes as the subject matter of TJ the basic structure of society, defined (as he later put it) as
the way in which the major social institutions fit together into one system, and how they assign
fundamental rights and duties and shape the division of advantages that arises through social
cooperation. PL at 258. Rawlss suggestion is, in effect, that we should put all our effort into
seeing to it that the rules of the game are fair. Once society has been organized around a set of fair
rules, people can set about freely playing the game, without interference.

b. Utilitarianism as the Principal Opponent

Rawls explains in the Preface to the first edition of TJ that one of the books main aims is to provide
a workable and systematic moral conception to oppose utilitarianism. TJ at xvii. Utilitarianism
comes in various forms. Classical utilitarianism, the nineteenth century theory of Jeremy Bentham
and John Stuart Mill, is the philosophy of the greatest good of the greatest number. The more
modern version is average utilitarianism, which asks us not to maximize the amount of good or
happiness, but rather its average level in society. The utilitarian idea, as Rawls confronts it, is that
society is to be arranged so as to maximize (the total or average) aggregate utility or expected well-
being. Utilitarianism historically dominated the landscape of moral philosophy, often being
refuted, but always rising again from the ashes. Rawlss view was that until a sufficiently
complete and systematic alternative is put on the table to compete with utilitarianism, its recurrence
will be eternal. In addition to developing that constructive alternative, however, Rawls also offered
some highly influential criticisms of utilitarianism. His critique of average utilitarianism will be
described below. About classical utilitarianism, he famously complains that it adopt[s] for society
as a whole the principle of choice for one man. In so doing, he suggests, it fails to take seriously
the distinction between persons. TJ at 24.

c. The Original Position

Recognizing that social institutions distort our views (by sometimes generating envy, resentment,
alienation, or false consciousness) and bias matters in their own favor (by indoctrinating and
habituating those who grow up under them), Rawls saw the need for a justificatory device that
would give us critical distance from them. The original position (OP) is his Archimedean Point,
the fulcrum he uses to obtain critical leverage. TJ at 230-32. The OP is a thought experiment that
asks: what principles of social justice would be chosen by parties thoroughly knowledgeable about
human affairs in general but wholly deprivedby the veil of ignoranceof information about
the particular person or persons they represent?
i. The Conditions and Purpose of the Original Position

The OP, as Rawls designs it, self-consciously builds on the long social-contract tradition in Western
political philosophy. In classic presentations, such as John Lockes Second Treatise of Civil
Government (1690), the social contract was sometimes described as if it were an actual historical
event. By contrast, Rawlss social-contract device, like his earlier decision procedure, is frankly and
completely hypothetical. While Rawls is most emphatic about this in his later work, for example,
PL at 75, it is clear already in TJ. He insists there that it is up to the theorist to construct the social-
contract thought-experiment in the way that makes the most sense given its task of helping us select
principles of justice. Especially because of its frankly hypothetical nature, Rawlss OP carries to a
higher level of abstraction the familiar theory of the social contract as found, say in Locke,
Rousseau, and Kant. TJ at 10.

The idea is to help justify a set of principles of social justice by showing that they would be selected
in the OP. The OP is accordingly set up to build in the moral conditions deemed necessary for the
resulting choice to be fair and to insulate the results from the influence of the extant social order.
The veil of ignorance plays a crucial role in this set-up. TJ at sec. 23. It assures that each party to
the choice is equally or symmetrically situated, with none enjoying greater power (or threat
advantage) than any other. TJ at 116, 121. It also isolates the parties choice from the contingencies
the sheer luckunderlying the variations in peoples natural abilities and talents, their social
backgrounds, and their particular societys historical circumstances. About their society, Rawls has
the parties simply assume that it is characterized by the circumstances of justice, which
principally include (a) the fact that material goods are scarce, but moderately so and (b) that there
is, within society, a plurality of worldviewsconceptions of the good moral, religious, and
secular. TJ at sec. 22.

It would be too fanciful to think of the parties to the OP as having the capacity to invent principles.
The point of the thought experiment, rather, is to see which principles would be chosen in a fair set-
up. To use the OP this way, we must offer the parties a menu of principles to choose from. Rawls
offers them various principles to consider. Among them are his own principles (to be described
below) and the two versions of utilitarianism, classical and average. The crux of Rawlss appeal to
the OP is whether he can show that the parties will prefer his principles to average utilitarianism.

Would rational parties behind a veil of ignorance choose average utilitarianism? The economist
John Harsanyi argues that they would because it would be rational for parties lacking any other
information to maximize their expectation of well-being. Harsanyi (1953) Since they do not know
who they will be, they will therefore want to maximize the average level of well-being in society.
Given Rawlss opposition to utilitarianism, it would be ironic if Rawlss thought experiment
supported it. Because Rawlss OP differs from Harsanyis choice situation in important ways,
however, its parties will not prefer average utilitarianism to Rawlss competing principles. The most
crucial difference concerns the motivation that is attributed to the parties by stipulation. The veil
deprives the parties of any knowledge of the valuesthe conception of the goodof the person
into whose shoes they are to imagine stepping. What, then, are they to prefer? Since Harsanyi
refuses to supply his parties with any definite motivation, his answer is somewhat mysterious. Cf.
TJ at 152. Rawls instead defines the parties as having a determinate set of motivations.

ii. The Motivations of the Parties to the Original Position

The parties in the hypothetical OP are to choose on behalf of persons in society, for whom they are,
in effect, trustees. PL at 76, 106. The veil of ignorance, however, prevents the parties from knowing
anything particular about the preferences, likes or dislikes, commitments or aversions of those
persons. They also know nothing particular about the society for which they are choosing. On what
basis, then, can the parties choose? To ascribe to them a full theory of the human good would fly in
the face of the facts of pluralism, for such theories are deeply controversial. Instead, Rawls
suggests, we should ascribe to them a thinner or less controversial set of commitments. At the
core of these are what he calls the primary goods: rights, liberties, and opportunities; income and
wealth; and the social bases of self-respect. To give the parties a definite basis on which to reason,
Rawls postulates that the parties normally prefer more primary goods rather than less. TJ at 123.
This is the only motivation that TJ ascribes to the parties.

In their pursuit of the primary goods, the parties are defined as being mutually disinterested: each
is motivated to obtain as many primary goods as he or she can and does not care if others attain
primary goods. TJ at 12. The parties are motivated neither by benevolence nor by envy or spite.
Many commentators think that this assumption of the parties mutual disinterest reflects an
unattractively individualistic view of human nature, but, as with the motivations ascribed to the
parties, the ascription of mutual disinterest is not intended to mirror human nature. The assumption
of mutual disinterest reflects Rawlss development of, and reaction against, both the sympathetic-
spectator tradition in ethics, exemplified by David Hume and Adam Smith, and the more recent
ideal-observer theory. The former tradition attempts to imagine the point of view of a fully
benevolent spectator of the human scene who reacts impartially and sympathetically to all human
travails and successes. The ideal-observer theory typically imagines a somewhat more dispassionate
or impersonal, but still omniscient, observer of the human scene. Each of these approaches asks us
to imagine what such a spectator or observer would morally approve.

Against these theories, Rawls raises a number of objections, which can be boiled down to this:
either they involve neglecting the separateness of persons (in roughly the same way that
utilitarianism does when it adds up everyones happiness), TJ at 164, or, if they seek to avoid
utilitarian aggregation, they will find that benevolence is at sea as long as its many loves are in
opposition in the persons of its many objects. TJ at 166. In other words, all difficult questions of
human conflict will be simply reproduced within the sympathetic spectators breast. Rawls was
determined to get beyond this impasse. He suggests that the OP should combine the mutual-
disinterest assumption with the veil of ignorance. This combination, he argues, will achieve the
rough moral equivalence of universal benevolence without either neglecting the separateness of
persons or sacrificing definiteness of results. TJ at 128.

As we will see, the definite positive motivations that Rawls ascribes to the parties are crucial to
explaining why they will prefer his principles to average utilitarianism. Because the parties
motivations are essential to the arguments bearing on this central philosophical contest, it is
important to attend to Rawlss rationale for giving this motivation to the parties.

The primary goods are supposed to be uncontroversially worth seeking, albeit not for their own
sakes. Initially, TJ presented the primary goods simply as goods that normally have a use whatever
a persons plan of life. TJ at 54. Although this claim seems quite modest, philosophers rebutted it
by describing life plans or worldviews for which one or another of the primary goods is not useful.
These counterexamples revealed the need for a different rationale for the primary goods. At roughly
the same time, Rawls began to develop further the Kantian strand in his view. These Kantian ideas
ended up providing a new rationale for the primary goods.

iii. Kantian Influence and Interpretation of the Original Position

Rawls had long admired Immanuel Kants moral philosophy, making it central to his teaching of the
subject. See CP essays 13, 16, 23. TJ aims to build on Kants central ideas and to improve on them
in certain respects. TJ at sec. 41. By insisting, as against utilitarianism, on the separateness of
persons, Rawls carries on Kants theme of respect for persons. Kant held that the true principles of
morality are not imposed on us by our psyches or by eternal conceptual relations that hold true
independently of us; rather, Kant argued, the moral law is a law that our reason gives to itself. It is,
in this sense, self-chosen or autonomous law. Kants position is not that morality requires whatever
Ms. Smith or Mr. Jones chooses to believe it does. Rather, his claim is that the rational (or
vernnftig) nature that each person shares shapes a single moral law, valid for all: the categorical
imperative.

Rawls suggests that the OP well models Kants central ideas. The OP is set up so that the parties
reflect our nature as reasonable and rationalRawlss dual way of rendering the Kantian
adjective vernnftig. Once it is so set up the parties are to choose principles. Their task of choosing
principles thus models the idea of autonomy. In designing the OP, Rawls also aimed to resolve what
he took to be two crucial difficulties with Kants moral theory: the danger of empty abstractness
early stressed by Hegel and the difficulty of assuring that the moral laws dictates adequately
express, as Kant thought they must, our nature as free and equal reasonable and rational beings.
Rawls addresses the issue of abstractness in many waysperhaps most fundamentally by dropping
Kants aim of finding an a priori basis for morality. Although Rawlss use of the veil of ignorance
keeps particular facts at a distance, he insists, as against Kant, that moral theory must be free to
use contingent assumptions and general facts as it pleases. TJ at 44. Another feature that reduces
the abstractness of Rawlss view is his focus on institutionson the basic structure of society. In
this light, we can see his institutional focus as carrying forward Hegels insight that the idea of
human freedom can achieve an adequately concrete realization only by a unified social structure of
a certain kind.

The OP also addresses the second problem with Kants moral theorythe problem of expression.
The OP, Rawls suggests, may be viewed as a procedural interpretation of Kants conception of
autonomy and the categorical imperative within the framework of an empirical theory. TJ at 226.
To be autonomous, for Kant, is to act on a law that one gives oneself, a law adequate to ones nature
as a free and equal, reasonable and rational person. The parties to the OP, in selecting principles,
implement this idea of autonomy. How they represent equality and rationality are obvious, for they
are equally situated and are rational by definition. Reasonableness enters the OP not principally by
the rationality of the parties but by the constraints on themmost especially the veil of ignorance.
They are also constrained in ways not yet mentioned and that we shall not discuss further, such as
the formal constraints of the concept of right. TJ at sec. 23. The veil also expresses (or models)
a crucial aspect of our freedom, namely our freedom to endorse principles in a way that is not
controlled by the historical contingencies of the society into which we are born. TJ at 225.

Rawlss attempt to solve the problem of expression also led him towards a fuller articulation of the
parties motivations, ascribing to them certain highest-order interests. An intermediate step in this
direction is his characterization of our three highest-order powers, the moral powers that persons
have as reasonable and rational beings. The rational corresponds to Kants hypothetical
imperative with its directive to take effective means to ones ends; the reasonable corresponds to
Kants categorical imperative, the moral law that demands that we do the right thing, irrespective of
what our ends are. To conceive of persons as reasonable and rational, then, is to conceive of them as
having certain higher-order powers. On the side of the rational, there is, first, the power to frame
our endsour conception of the goodand to pursue it by selecting effective means to satisfying
them. Second, we can also revise our ends when we see reason to do so. Third, on the side of the
reasonable, we have the power or capacity to act from an effective sense of justice: we can do the
right thing.

This Kantian conception of the powers of reasonable and rational persons directly supports Rawlss
later account of the motivations of the parties. The parties are conceived as having highest-order
interests that correspond directly to these highest-order powers. Although the account of the moral
powers was present in TJ, it is only in his later works that Rawls uses this idea to defend and
elaborate the motivation of the parties in the OP.

Rawlss account of the moral powers explains why it makes sense to postulate that the parties are
motivated to secure the primary goods. In various, complicated ways, in his later work, Rawls
defends the primary goods as being required for free and equal citizens to promote and protect their
three moral powers. This is to cast the primary goods as items objectively needed by moral persons
occupying the role of free and equal citizens. While the list of primary goods may not be a perfect
or complete account of what is needed to support this aspect of moral personality, Rawls claims that
it is the best available account that we can muster in the face of the fact of reasonable pluralism.
PL at 188-9.

In addition to providing a new rationale for the primary goods, Rawlss account of the moral powers
also became, in his later work, a basis for elaborating the motivations ascribed to the parties. In
Political Liberalism, Rawls describes the motivation as: The parties in the original position have
no direct interests except an interest in the person each of them represents and they assess principles
of justice in terms of primary goods. In addition, they are concerned with securing for the person
they represent the higher-order interests we have in developing and exercising our moral powers
and in securing the conditions under which we can further our determinate conceptions of the good,
whatever it is. PL at 105-6. Here, the motivation of the parties is importantly extended by
postulating that these hypothetical beings care about the moral powers of persons in society and
also, by extension, about those persons ability to pursue what they particularly care about or are
committed to.

Rawlss assumptions about the motivations of the parties involve frankly moral content and are
justified on openly moral grounds, as he had always avowed. His aim remains, nonetheless, to
assemble in the OP a series of relatively uncontroversial, relatively fixed points among our
considered moral judgments and to build an argument on that basis for the superiority of some
principles of justice over others.

d. The Principles of Justice as Fairness

Justice as Fairness is Rawlss name for the set of principles he defends in TJ. He refers to the
two principles of Justice as Fairness, but the second has two parts. These principles address two
different aspects of the basic structure of society: the First Principle addresses the essentials of the
constitutional structure. It holds that society must assure each citizen an equal claim to a fully
adequate scheme of equal basic rights and liberties, which scheme is compatible with the same
scheme for all. PL at 5. The second principle addresses instead those aspects of the basic structure
that shape the distribution of opportunities, offices, income, wealth, and in general social
advantages. The first part of the second principle holds that the social structures that shape this
distribution must satisfy the requirements of fair equality of opportunity. The second part of the
second principle is the famousor infamousDifference Principle. It holds that social and
economic inequalities are to be to the greatest benefit of the least advantaged members of
society. PL at 6. Each of these three centrally addresses a different set of primary goods: the First
Principle concerns rights and liberties; the principle of Fair Equality of Opportunity concerns
opportunities; and the Difference Principle primarily concerns income and wealth. (That the view
adequately secures the social basis of self-respect is something that Rawls argues more holistically).
TJ at 477-8.

e. The Argument from the Original Position

The argument that the parties in the OP will prefer Justice as Fairness to utilitarianism and to the
various other alternative principles with which they are presented divides into two parts. There is,
first, the question whether the parties will insist upon securing a scheme of equal basic liberties and
upon giving them top priority. Secondly, assuming that they will, there remains the question
whether social inequalities should be governed by Rawlss second principle, comprising Fair
Equality of Opportunity and the Difference Principle, or else should be addressed in a utilitarian
way. Making the latter choice, and so inserting utilitarianism into a position subordinate to the First
Principle, yields what Rawls calls a mixed conception. TJ at 107.

Each of these parts of the argument from the OP is considerably aided by the clarified account of
the primary goods that emerges in Rawlss later work and that has been set out above in the section
on the motivation of the parties to the OP. Regarding the first part of the argument from the OP, the
crucial point is that the parties are stipulated to care about rights and liberties. They further know, as
a general fact about human beings, that the determinate persons on whose behalf they are choosing
are likely to have firmly and deeply-held religious, philosophical, and moral views. PL at 311
They also have a higher-order interest in protecting these persons abilities to advance these
conceptions. Accordingly, they cannot take chances by permitting a lesser liberty of conscience to
minority religions, say, on the possibility that those they represent espouse a majority or dominant
religion. PL at 311. Rawls admits that persons deeply-held views are not always set in stone, but
he insists that not all circumstances in which they may change are morally acceptable. He argues
that protecting ones ability to exercise ones highest-order power to change ones mind about such
things requires an adequate scheme of basic liberties. PL at 312-3. In addition, he argues that
securing the First Principle importantly serves the higher-order interest in an effective sense of
justiceand does so better than the pure utilitarian alternativeby better promoting social stability,
mutual respect, and social unity. PL at 317-24.

The second part of the argument from the OP takes the First Principle for granted and addresses the
matter of social inequalities. Its sticking point has always been the Difference Principle, which
strikingly and influentially articulates a liberal-egalitarian socioeconomic position. While there are
questions about Rawlss precise formulation and implementation of the principle of Fair Equality of
Opportunity, it is far less controversial, both in theory and in practice. It is the Difference Principle
that would most clearly demand deep reforms in existing societies. The set-up of the OP suggests
the following, informal argument for the difference principle: because equality is an ideal
fundamentally relevant to the idea of fair cooperation, the OP situates the parties symmetrically and
deprives them of information that could distinguish them or allow one to gain bargaining advantage
over another. Given this set-up, the parties will consider the situation of equal distribution a
reasonable starting point in their deliberations. Since they know all the general facts about human
societies, however, the parties will realize that society might depart from this starting point by
instituting a system of social rules that differentially reward the especially productive and could
achieve results that are better for everyone than are the results under rules guaranteeing full equality.
This is the kind of inequality that the Difference Principle allows and requires: departures from full
equality that make some better off and no one worse off.
While this is the intuitive idea behind the Difference Principle, Rawlss statement of the principle is
more careful and precise. Three main refinements are worth noting. First, because the principle
pertains to the basic structure of society and because the parties are comparing different societies
organized around different principles, the expectations that matter are not those of particular people
but those of representative members of broad social classes. Second, to make his exposition a little
simpler, Rawls makes some technical assumptions that let him focus only on the expectations of the
least-well-off representative class in a given society. (These assumptionsof close-knitness and
chain-connectionenable him to ignore, for instance, the possibility of increasing the inequality
between the rich and the middle-class without affecting those on the bottom. For those who find
these simplifying assumptions too restrictive, Rawls offers a multi-tiered, or lexical, version of
the Difference Principle. TJ at 72. Allowed by these simplifying assumptions to focus only on the
least well off representative persons, the Difference Principle thus holds that social rules allowing
for inequalities in income and wealth are acceptable just in case those who are least well off under
those rules are better off than the least-well-off representative persons under any alternative sets of
social rules. This formulation already takes account of the third refinement, which recognizes that
the people who are the worst off under one set of social arrangements may not be the same people
as those who are worst off under some other set of social arrangements. Cf. PL at 7n.

The Difference Principle requires society to look out for the least well off. But would the parties to
the OP prefer the Difference Principle to a utilitarian principle of distribution? Here, Rawlss
interpretation of the OP matters. It took a while for commentators to grasp the degree to which
Rawlss characterization of the OP departed from the much simpler one favored by Harsanyi, from
the point of view of which Rawlss argument for the Difference Principle appeared to be a plain
mistake. For parties like Harsanyis, it would be irrational to choose the Difference Principle.
Harsanyis parties lack any determinate motivation: as Rawls puts it, they are bare-persons. TJ at
152. With nothing but the bare idea of rationality to guide them, they will naturally choose any
principle that will maximize their utility expectation. Since this is what the principle of Average
Utilitarianism does, they will choose it. Yet as we have seen, Rawls departs from Harsanyis version
of the thought experiment by attributing a determinate motivation to the parties, while denying that
an index of the primary goods provides an interpretation of what the parties conceive to be good.
Rawls never defends the primary goods as goods in themselves. Rather, he defends them as
versatile means. In the later theory, the primary goods are defended as facilitating the pursuit and
revision, by the persons the parties represent, of their conceptions of the good. While the parties do
not know what those conceptions of the good are, they do care about whether the persons they
represent can pursue and revise them.

With this departure from Harsanyi in mind, we may finally explain why the parties in the OP will
prefer the principles of Justice as Fairness, including the Difference Principle, to average
utilitarianism. In laying out the reasoning that favors the Difference Principle, Rawls argues that the
parties will have reason to use the maximin rule. The maximin rule is a general rule for making
choices under conditions of uncertainty. It is markedly different from the rule of maximizing
expected value, the more averaging sort of rule that Harsanyis parties employ. The maximin rule
directs one to select that alternative where the minimum place is higher (on whatever the relevant
measure is) than the minimum place in any other alternative. Applied to the theory of social justice,
maximin is an approach a person would choose for the design of a society in which his enemy is to
assign him his place. TJ at 133.

The parties to Rawlss OP are not bare-persons but determinate-persons. TJ at 152. They care
about the primary goods and the highest-order moral powers, but they also know, in effect, that the
primary goods that they are motivated to seek are not what the persons they represent ultimately
care about. Accordingly, the parties will give special importance to protecting the persons they
represent against social allocations of primary goods that might frustrate those persons ability to
pursue their determinate conceptions of the good. If the parties knew they had in hand an adequate
sketch of the good, they might use that to assess the gamble they face, choosing in a maximizing
way like Harsanyis parties. But Rawlss parties instead know that the primary goods that they are
motivated to seek do not adequately match anyones conception of the good. Accordingly, it is
rational for them to take a cautious approach. They must do what they can to assure to the persons
they represent have a sufficient supply of primary goods for those persons to be able to pursue
whatever it is that they do take to be good.

f. Reflective Equilibrium

Although the OP attempts to collect and express a set of crucial constraints that are appropriate to
impose on the choice of principles of justice, Rawls recognized from the beginning that we could
never just hand over the endorsement of those principles to this hypothetical device. Rather, he
foresaw the need to work from both ends, pruning and adjusting things as we go. TJ at 18. That
is, we need to stop and consider whether, on reflection, we can endorse the results of the OP. If
those results clash with some of our more concrete considered judgments about justice, then we
have reason to think about modifying the OP.

Alternativelyand this is what Rawls means by working from both endsinstead of modifying
the OP, we might decide that the argument from the OP gives us good reason to modify the
considered judgments of justice with which its conclusions clash. Eventually, we may hope that this
process reaches a reflective equilibrium. If it does, Rawls wrote, we shall find a description of
the initial situation that matches our considered judgments duly pruned and adjusted. Ibid.

The reflective equilibrium has been an immensely influential idea about moral justification. It is not
a full theory of justification. When it was introduced, however, it suggested a different approach to
justifying moral theories than was being commonly pursued. The idea of reflective equilibrium
takes two steps away from the sort of conceptual analysis that was then prevalent. First, working on
the basis of considered judgments suggests that it is not necessary to build moral theories on
necessary or a priori premises. What matters, rather, is whether the premises are ones that we do,
in fact, accept. TJ at 19. Rawls characterizes considered judgments as simply judgments reached
under conditions where our sense of justice is likely to operate without distortion. TJ at 42. Second,
the sort of pruning and adjusting that Rawls assumes will be involved in the search for reflective
equilibrium implies that theories need not aim for a perfect fit with theory-independent data.
Whereas the practitioners of conceptual analysis had raised to a fine art the method of generating
counterexamples to a general theory, Rawls writes that objections by way of counterexample are to
be made with care. TJ at 45. Checking a theorys fit with ones more concrete considered
judgments is only a way-station on the route to reflective equilibrium. Reaching it might involve
revising some of those more concrete judgments. A third novel idea about justification thus emerges
from this picture: it involves arguments built in various different directions at once. The resulting
justification, as Rawls puts it, is a matter of the mutual support of many considerations. TJ at 19,
507.

Eventually, the hope is that each person will reach a reflective equilibrium that coincides with every
other persons. Since it is up to each person, however, to determine which arguments are most
compelling, Rawls stresses that the reader must make up his or her own mind, rather than trying to
predict or anticipate what everyone else will think. TJ at 44.
g. Just Institutions

Part Two of TJ aims to show that Justice as Fairness fits our considered judgments on a whole range
of more concrete topics in moral and political philosophy, such as the idea of the rule of law, the
problem of justice between generations, and the justification of civil disobedience. Consistent with
the idea of reflective equilibrium, Rawls suggests pruning and adjusting those judgments in a
number of places. One of the thorniest such issues, that of tolerating the intolerant, recurs in PL. In
addition to serving its main purpose of facilitating reflective equilibrium on Justice as Fairness, Part
Two also offers a treasure trove of influential and insightful discussion of these and other topics in
political philosophy. There is hardly space here even to summarize all the worthwhile points that
Rawls makes about these topics. A summary of his controversial and influential discussion of the
idea of desert (that is, getting what one deserves), however, will illustrate how he proceeds.

As we have seen, Rawls was deeply aware of the moral arbitrariness of fortune. He held that no one
deserves the social position into which he or she is born or the physical characteristics with which
he or she is endowed from birth. He also held that no one deserves the character traits he or she is
born with, such as his or her capacity for hard work. As he wrote, The natural distribution is
neither just nor unjust; nor is it unjust that persons are born into society at some particular position.
These are simply natural facts. What is just and unjust is the way that institutions deal with these
facts. TJ at 87.

In Part Two, Rawls sets out to square this stance on the moral arbitrariness of fortune with our
considered judgments about desert, which do hold that desert is relevant to distributive claims. For
instance, we tend to think that people who work harder deserve to be rewarded for their effort. We
may also think that the talented deserve to be rewarded for the use of their talents, whether or not
they deserved those talents in the first place. With these common-sense precepts of justice, Rawls
does not disagree; but he clarifies them by responding to them dialectically. TJ at sec. 48. He
questions whether these common-sense claims are meant to stand independently of any assumptions
about whether or not the basic institutions of societyespecially those institutions of property law,
contract law, and taxation that, in effect, define the property claims and transfer rules that make up
the marketplaceare just. It is unreasonable, Rawls argues, to say that desert is a direct basis for
distributional claims even if the socio-economic system is unfair. It is much more reasonable to
hold, he suggests, that whether one deserves the compensation one can command in the job
marketplace, for instance, depends on whether the basic social institutions are fair. Are they set up
so as to assure, among other things, an appropriate relationship between effort and reward? It is this
justice of the basic structure that is Rawlss topic.

Rawlss alternative proposal is that the common-sense precepts about desert generally presuppose
that the basic structure of society is itself fair. When they are qualified in line with this
presupposition, Rawls supports them. To prevent the unqualified and the qualified claims from
being confused with each other, however, he uses the term legitimate expectations as a term of art
to express the claims of desert appropriately so qualified. A crucial idea of Justice as Fairness is that
fundamental principles of justice must be respected for the rules of social cooperation to be fair, and
that when they are, we should allow the free operation of the market largely to determine peoples
legitimate expectations. (This dialectical clarification of the moral import of desert, however, did
not satisfy all commentators. See Robert Nozick (1974).

h. Stability
In pursuing his novel topic of the justice of the basic structure of society, Rawls posed novel
questions. One set of questions concerned what he calls the stability of those societies whose
institutions live up to the requirements of a given set of principles of justice. The stability of the
institutions called for by a given set of principles of justicetheir ability to endure over time and to
re-establish themselves after temporary disturbancesis a quality those principles must have if they
are to serve their purposes.. TJ at 398-400. Unstable institutions would not secure the liberties,
rights, and opportunities that the parties care about. If any set of institutions realizing a given set of
principles were inherently unstable, that would suggest a need to revise those principles.
Accordingly, Rawls argues, in Part Three of TJ, that institutions embodying Justice as Fairness
would be stable even more stable than institutions embodying the utilitarian principle.

In addressing the question of stability, Rawls never leaves behind the perspective of moral
justification. Stability of a kind might be achieved by arranging a stand-off of opposing but equal
armies. The results of such a balance of power are not of interest to Rawls. Rather, the stability
question he asks concerns whether, in a society that conforms to the principles, citizens can
wholeheartedly accept those principles. Wholeheartedness will require, for instance, that the reasons
on the basis of which the citizens accept the principles are reasons affirmed by those very
principles. PL at xlii. If stability can be grounded on such wholeheartedly moral reasonsas
opposed to ulterior reasonsthen it is stability for the right reasons. PL at xxxix. In TJ, the
account of stability for the right reasons involved imagining that this wholeheartedness arose from
individuals being thoroughly educated, along Kantian lines, to think of fairness in terms of the
principles of Justice as Fairness. Cf. PL at lxii. As we will see, he later came to think that this
account violated the assumption of pluralism.

The imaginative exercise of assessing the comparative stability of different principles would be
useless and unfair if one were to compare, say, an enlightened and ideally-run set of institutions
embodying Justice as Fairness with the stupidest possible set of institutions compatible with the
utilitarian principle. In order to standardize the terms of comparison, Rawls discusses only the
well-ordered societies corresponding to each of the rival sets of principles. His notion of a well-
ordered society is complex. See CP at 232-5. The gist of it is that the relevant principles of justice
are publicly accepted by everyone and that the basic social institutions are publicly known (or
believed with good reason) to satisfy those principles.

Assessing the comparative stability of alternative well-ordered societies requires a complex

imaginative effort at tracing likely phenomena of social psychology. As Rawls comments, One
conception of justice is more stable than another if the sense of justice that it tends to generate is
stronger and more likely to override disruptive inclinations and if the institutions it allows foster
weaker impulses and temptations to act justly. CP at 398. In order to address the first of these
issues, about the strength of the sense of justice, Chapter VIII develops a rich and somewhat
original account of moral education. Drawing upon empirical research in developmental
psychology, Rawls describes the gradual development of individuals senses of justice as involving
three stages: the morality of authority, which is fostered in families; the morality of association; and
the morality of principles. He argues that each of these stages of moral education will work more
effectively under Justice as Fairness than it will under utilitarianism. TJ at chap. 8. He also argues
that a society organized around the two principles of Justice as Fairness will be less prone to the
disruptive effects of envy than will a utilitarian society. TJ at secs. 80-81.

i. Congruence
As we have seen, the veil of ignorance disconnects the argument from the OP from any given
individuals full conception of the good. The final question addressed by TJ attempts to reconnect
justice to each individuals good, not in general, but within the well-ordered society of Justice as
Fairness. A stable society is one that generates attitudes, such as are encapsulated in an effective
sense of justice, that support the just institutions of that society. If, in the well-ordered society,
having those attitudes is also a good for the persons who have them, then there is a match between
justice and goodness that Rawls calls congruence. TJ at 350.

In order to address this question of congruence, TJ develops an account of the good for individuals.
Chapter VII of TJ, in fact, develops a quite general theory of goodnesscalled goodness as
rationalityand then applies it to the special case of the good of an individual over a complete
life. Rawls starts from the suggestion that A is a good X if and only if A has the properties (to a
higher degree than the average or standard X) which it is rational to want in an X, given what Xs
are used for, or expected to do, and the like (whichever rider is appropriate). TJ at 350-1. This idea,
developed in dialogue with the leading alternatives from the middle of the 20th century, still repays
attention. To work out this suggestion for the case of the good for persons, Rawls influentially
developed and deployed the notion of a life plan. A rational plan of life for an individual, he
argued, is answerable to certain principles of deliberative rationality. These Rawls sets out in a
low-key way that masks the power and originality of his formulations. TJ at 359-72.

Rawlss argument for congruencethat having an effective sense of justice built around the
principles of Justice as Fairness will be a good for each individualis a complex and
philosophically deep one. It appeals to at least four types of intermediate good, each of which may
be presumed to be of value to just about everyone: (i) the development and exercise of complex
talents (which Rawlss Aristotelian Principle presumes to be a good for human beings), TJ at 374,
(ii) autonomy, (iii) community, and (iv) the unity of the self. Rawlss argument for congruence is
spread out across many sections of TJ. Some of its main threads are pulled together by Samuel
Freeman in his contribution to The Cambridge Companion to Rawls. Freeman (2003). With regard
to autonomy, to supplement the positive argument flowing from the Kantian interpretation of the
OP, Rawls argues that the type of objectivity claimed for the principles of Justice as Fairness is not
at odds with the idea of the autonomous establishment of principles. TJ at sec. 78. He further argues
that Justice as Fairness supports the kind of tightly-knit community he calls a social union of social
unions, marked by the shared purpose or common aim of cooperating together to realize their
own and anothers nature in ways allowed by the principles of justice. TJ at 462. If Rawls is right
about the congruence of goodness and justice, these ways are hardly trivial. (Not long after TJ
was published, it came under attack by a set of critics who identified themselves as
communitarians, see for example MacIntyre (1984) and Sandel (1998). Ironically, the
communitarian critique focused largely on Parts One and Two of TJ, giving short shrift to the
powerful articulation of this ideal of community in Part Three.) Finally, regarding the unity of the
self, Rawls criticizes the Procrustean sort of unity that could come from attaching oneself to a single
dominant end. He notes the advantages of a conception of the unity of the self that hangs, instead,
on the regulative status of principles of justice. TJ at secs. 83-85. The cumulative effect of these
appeals to the development of talent, autonomy, community, and the unity of the self is to support
the claim of Justice as Fairness to congruence. In a well-ordered society corresponding to Justice as
Fairness, Rawls concludes, an effective sense of justice is a good for the individual who has it. In
TJ, this congruence between justice and goodness is the main basis for concluding that individual
citizens will wholeheartedly accept the principles of justice as fairness.
3. Recasting the Argument for Stability: Political Liberalism
(1993)
Rawls has the parties to the OP assume that the society for which they are choosing principles is in
the circumstances of justice, which include the presence of a plurality of irreconcilable moral,
religious, and philosophical doctrines. But his argument for the comparative stability and the
congruence of Justice as Fairness, imagines a well-ordered society in which everyone is brought up
in ways deeply informed by the adherence by all adults to the same principles of justice.
Accordingly, his discussion of stability and congruence in Part Three of TJ is at odds with the
assumption of pluralism. In his second book, Political Liberalism [PL], he set out to rectify this
serious problem. PL at xvii.

PL clarifies that the only acceptable way to rectify the problem is to modify the account of stability
and congruence, because pluralism is no mere theoretical posit. Rather, pluralism has been endemic
among the liberal democracies since the 16th century wars of religion. Moreover, pluralism is a
permanent feature of liberal or non-repressive societies. It does not rest on irrationality. On the
contrary, within a wide range such pluralism is reasonable and will not be erased by peoples
attempts to cooperate reasonably. That is because a series of intractable burdens of judgment all
but preclude reasoned convergence on fundamental and comprehensive principles about how to
live. PL at 54-8. Accordingly, Rawls takes it as a fact that the kind of uniformity in fundamental
moral and political beliefs that he imagined in Part Three of TJ can be maintained only by the
oppressive use of state force. He calls this the fact of oppression. PL at 37. Since he also
unsurprisinglyholds that oppression is illegitimate, he refrains from offering fundamental and
comprehensive principles of how to live. In this way, his insistence on the fact of oppression
prompts a marked scaling back of the traditional aims of political philosophy.

The seminal idea of PL is overlapping consensus. In an overlapping consensus, each citizenno

matter which of societys many comprehensive conceptions he or she endorsesends up
endorsing the same limited, political conception of justice, each for his or her own reasons. The
principal role of the overlapping consensus is to replace TJs description of wholehearted
acceptance. Unlike TJs description, the overlapping consensus conceptually reconciles
wholehearted acceptance with the fact of reasonable pluralism.

Part of this newer approach is the distinction between comprehensive conceptions, which address
all questions about how to live, and political conceptions, which address only political questions.
This distinction has proven somewhat troublesome. The domain of the political, as Rawls calls it,
is not completely distinct from morality. In concerning himself only with the political, he is not
setting aside all moral principles and turning instead to mere strategy or Realpolitik. On the
contrary, a political conception is, of course, a moral conception, but it is a moral conception that
concerns itself only with the basic structure of society. PL at 11. Further, a political conception is
one that may be developed in a freestanding way, drawing only upon the very great values of
the political, rather than being presented as deriving from any more comprehensive moral or
religious doctrine. PL at 139. A corollary of this approach is that such a political liberalism is not
wholly neutral about the good. PL at 191-3. While Justice as Fairness is one such political
conception, in PL Rawls makes a point of stressing that it is just one member of the broader family
of views he refers to as the reasonable liberal political conceptions.

Armed with the idea of an overlapping consensus on a reasonable political conception, Rawls could
have contented himself with describing the historical and sociological grounds for hoping that a
reasonable overlapping consensus on a political liberalism might be reached. Hope is indeed the
leitmotif of PL. E.g PL at,40, 65, 172, 246, 252, 392. But because Rawls never drops his role as an
advocate of political liberalism, he must go beyond such disinterested sociological speculation. He
must find and describe ways of advocating this view that are compatible with his full, late
recognition of the fact of reasonable pluralism. This attempt is what makes PL so rich, difficult, and
interesting.

The difficulty is this: to advocate Justice as Fairness or any other political liberalism as true would
be to clash with many comprehensive religious and moral doctrines, including those that simply
deny that truth or falsity apply to claims of political morality, as well as those that insist that
political-moral truths derive only from some divine revelation. To preserve the possibility of an
overlapping consensus on political liberalism, it might be thought that its defenders must deny that
political liberalism is simply true, severely hampering their ability to defend it. To cope with this
difficulty, Rawls pioneered a stance in political philosophy that mirrored his general personal
modesty: a stance of avoidance. Using the method of avoidance, Rawls neither asserts nor denies
such truth claims. CP at 395. The central idea, he writes, is that political liberalism moves within
the category of the political and leaves philosophy as it is. PL at 375. Perhaps defending political
liberalism as the most reasonable political conception is to defend it as true; but, again, Rawls
neither asserts nor denies that this is so.

Developing a compelling freestanding presentation of political morality may be possible if we may

draw upon a shared set of relevant moral ideas implicit in the background culture of democratic
societies. PL at 14. Foremost among such shared ideas is the idea of fair cooperation among free
and equal citizens. Much of PL is accordingly devoted to recasting the earlier argument for Justice
as Fairness in terms that are political, not metaphysical. Many of the revisions concern the
arguments for various features of the OP. Although these revisions occupy much of PL, they need
not be covered further here, as most of them have been already anticipated in the above exposition
of TJ. To have structured the exposition in this way is to have sided with those who see considerable
unity in Rawlss work, for example, Wenar (2004). One important change, however, is that PL goes
to considerably further lengths to show that the values to which the view appeals are political, rather
than being tied up in any particular comprehensive doctrine. For instance, that citizens are thought
of as free is defended, not by general metaphysical truths about human nature, but rather by our
widely shared political convictions. On the road to Damascus Saul of Tarsus becomes Paul the
Apostle. Yet such a conversion implies no change in our public or institutional identity. PL at 31.
On the contrary, our political rights ought not to vary with such changes. To think of political rights
in this way is to think of citizens as free, in a relevant, political sense.

Instead of seeing a fundamental unity to Rawlss work, some commentators emphasize what they
take to be PLs new focus on political legitimacy, as distinct from political justice, for example,
Estlund (1998) and Dreben (2003). It is certainly true that Rawls prominently deploys a liberal
principle of legitimacy that was not present in TJ. This principle states that

[O]ur exercise of political power is proper and hence justifiable only when it is exercised in
accordance with a constitution the essentials of which all citizens may reasonably be expected to
endorse in the light of principles and ideals acceptable to them as reasonable and rational. PL at
217; cf. 137.

This principle thus appears to connect Rawlss view to that of others working in political and
democratic theory who lean on the notion of reasons that all can accept, for example, Gutmann
and Thompson (1996). Rawls, however, leans more heavily than most on the notion of
reasonableness. This is apparent in a late essay, where he writes that our exercise of political power
is proper only when we reasonably think that other citizens might also reasonably accept those
reasons [on which it is based]. CP at 579.

These further qualifications hint at the relatively limited purpose for which Rawls appeals, within
PL, to this principle of legitimacy. The principle is part of his account of public reason in pluralist
societies. This account answers the question: how can we, in political society, reason with one
another so as to set priorities and make political decisions, given the fact of reasonable pluralism
and the burdens of judgment that make it permanent? Finding reasons that we reasonably think
others might accept is a crucial part of the answer. The demand that we do so makes up the core of
the duty of civility that binds citizens acting in any official capacity. Rawlss limits on public
reasoning have been highly controversial, but it is important to remember that they form part of his
revised thought experiment about stability. The overall question of PL is similar to that of Part
Three of TJ: what grounds do we have for thinking that a political liberalism would be stable? In
this context, Rawlss duty of civility may be seen as contributing his defense of the following
conditional claim: if citizens of a pluralist society would abide by such restraints of civility, and if a
political liberalism were the object of an overlapping consensus, then that political liberalism would
be stable.

To this observation, some of the critics of Rawlss account of public reason reply that accepting this
kind of restraint on public dialogue would be too high a price to pay for a stable liberalism. See
Richardson & Weithman vol. 5 (1999). Yet in his last essay on the subject, The Idea of Public
Reason Revisited (in LP as well as CP), Rawls introduced qualifications to his duty of civility that
have mollified some. To begin with, he emphasizes that this stricture is not meant to restrict public
discussion in the background culture in any way, but only to constrain certain official interactions.
He further introduces a proviso that allows one to rely, even in official contexts, on reasons
dependent on one or another comprehensive doctrine, so long as in due course one provides
properly public reasons. CP at 584. Even this revised account of civility remains highly
debatable. Still, it should make a difference to the debate whether we consider the restriction only as
part of a hypothetical consideration of the stability of a given well-ordered society (specifically, one
that has reached overlapping consensus on some political liberalism) or rather as a doctrine about
what civility requires in our society, here and now.

4. Problems of Extension
The modesty and restraint we have noted in Rawlss general approach is also revealed in the way he
set aside a number of difficult questions that properly arise within his self-assigned topic.
Complicated as his view is, he was keenly aware of the many simplifying assumptions made by his
argument. We need to be tolerant of simplifications. TJ at 45-6. His most prominent
simplifications are the following two: the assumption (for the time being) that society is a closed
system isolated from other societies, TJ at 7, and that all citizens are fully cooperating members
of a society over a complete life. CP at 332; cf. PL at 20. These simplifications set aside questions
about international justice and about justice for the disabled. An additional simplifying assumption
implicit in the account of moral development in Part Three of TJ, is that families are just and caring.
Relaxing each of these three simplifying assumptions gives rise to important and challenging
problems of extension for a Rawlsian view.

In The Law of Peoples [LP] (1999), Rawls relaxes the assumption that society is a closed system
that coincides with a nation-state. Once this assumption is dropped, the question that comes to the
fore is: upon what principles should the foreign policy of a decent liberal regime be founded? Rawls
first looks at this question from the point of view of ideal theory, which supposes that all peoples
enjoy a decent liberal-democratic regime. At this level, with reference to a rather thinly-described
global original position, Rawls develops basic principles concerning non-intervention, respect for
human rights, and assistance for countries lacking the conditions necessary for a decent or just
regime to arise. These principles govern one nation in its relations with others. He next discusses
the principles that should govern decent liberal societies in their relations with peoples who are not
governed by decent liberalisms. He articulates the idea of a decent consultation hierarchy to
illustrate the sort of non-liberal society that is owed considerable tolerance by the people of a decent
liberal society. In a part of the book devoted to non-ideal theory, Rawls impressively defends quite
restrictive positions on the right of war and on the moral conduct of warfare. Surprisingly, questions
of global distributive justice are confined to one brief section of LP. In that section, Rawls treats
quite dismissively two earlier attempts to extend his theoretical framework to questions of
international justice, those of Beitz (1979) and Pogge (1994). Drawing on the ideas of TJ, these
philosophers had developed quite demanding principles of international distributive justice. In LP,
Rawls instead favors a relatively minimal duty of assistance, with a definite target and a cut-off
point. LP at 119.

As to justice for the disabled, Rawls never attempted an extension of his theory. He did direct some
brief remarks to the topic in Political Liberalism, noting that the view generates a salient distinction
between those whose disabilities permanently prevent them from being able to express their higher-
order moral powers as fully cooperating citizens and those whose do not. PL at 183-6. While Rawls
limited himself to this observation, Norman Daniels work on justice and health care may be viewed
as an attempt to extend Rawlss view in the direction the observation indicates. Daniels (1985).
Nussbaum argues that Rawlsian social-contract theory is a deeply flawed basis for addressing
questions of justice for the disabled and cannot be well extended to deal with them. Nussbaum
(2005).

Responding to critics, Rawls did briefly address justice within the family in The Idea of Public
Reason Revisited. CP at 595-601; LP at 156-164. He writes that he had thought that J. S. Mills
landmark The Subjection of Women made clear that a decent liberal conception of justice
(including what I have called Justice as Fairness) implied equal justice for women as well as men,
but admits that he should have been more explicit about this. CP at 595. He there affirms that the
family is part of the basic structure and is subject to being regulated by the principles of political
justice. The laws defining the rights of marriage, divorce, and the ownership and inheritance of
property by families and family members are presumably all part of the basic structure of society, as
are provisions of the criminal law protecting the basic rights of family members not to be abused.

In the case of the family as in economic transactions, Rawlss stance illustrates once more how his
focus on institutional justice structures his attempt to reconcile freedom and equality. Egalitarian
concerns are addressed at the institutional level by assuring that protection for the appropriate rights
and liberties is assured by the basic structure of society. Freedom is preserved by allowing
individuals to pursue their reasonable conceptions of the good, whatever they may be, within those
constitutional constraints.