M I M A M S H A

Revisiting Rawls: Justice and Self-respect

Abstract
This paper revisits the theory of justice based on the seminal works of John Rawls, primarily "A Theory of Justice," an integral and foundational text deemed necessary in the context of modern legal philosophy regarding justice. Through this paper, we aim to present a concise and comprehensive account of justice as addressed by the Rawls' theory while addressing the flaw in the idea of justice prevalent at the time, which was founded upon the idea of utilitarianism and intuitionism and highlight Rawls two foundational principles; ‘the Liberty Principle’ and ‘the Difference Principle’. Additionally, this paper attempts to explore criticism of Rawls' theory from a leftist perspective, mainly focusing on the neglect of ‘self-respect as a function of economic distribution’ in his justice system.

Introduction
John Rawls' foundational text "A Theory of Justice" was published in 1971, during the prominent rise of analytical philosophy along with the other significant social context like uprising in the American Civil War and consequential political upheaval in background. Rawls' theory is an alternative to utilitarianism, which had been dominant among philosophers and political thinkers since the mid-18th century. Notable politicians, economists and moral philosophers such as Adam Smith, Jeremy Bentham, John Stuart Mill and Henry Sidgwick had all advocated utilitarianism.1 The theory provided by Rawls focused to highlight the limitations in the idea of justice prevailing in the 20th century based on ethical theories of utilitarianism and intuitionism. On the one hand, Utilitarianism, in its classic form, is simple: maximization of happiness is the summum bonum individuals’ act according to pleasure and pain.2 It considers maximum happiness and diminished pain as a measure for the fairness and just nature of law. While on the other hand, intuitionism heavily relies on the moral intuitions which are known to vary among the individuals. Intuitionism, though close in methodology to Rawls' model, differs because it depends upon objective principles which are discerned through and may override immediate intuitions, rather than empirical claims about people's actual or abstracted preferences. Given that there is no explicit principle for balancing values in all conflict cases or, at least, confining intractable value conflicts within narrow limits, intuitions are bound to greatly influence decision-making by determining how conflicts must be settled.3 Intuitionism examines humanity's collective experience for common moral intuitions, but, unlike Rawls, does not confer legitimacy upon principles of justice because of political consensus. 4
Thus, Rawls drew a theory of justice to provide stable and coherent structure within a fair and just society, providing insights regarding the need of innovative principles which could address the framework of society allowing respect for individual autonomy and rights while considering the collective well-being in parallel. Principles of justice, according to Rawls, are principles which "provide a way of assigning rights and duties in the basic institutions of society and ...define the appropriate distribution of the benefits and burdens of social cooperation." 5 In his book, A Theory of Justice, Rawls has described justice as “the first virtue of social institutions'' 6and identifies “the primary subject of justice” as “the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation”.7 Additionally, Rawls has built his idea on the basis of the Social Contract Theory specifically propounded by Locke, Rousseau and Kant. Rawls Argues that “justice as fairness assigns a certain primacy to the social.”8

The Original Position and Veil of Ignorance
Rawls continues the social contract tradition, especially aligning with the approach of Locke, Rousseau and Kant. Similar to the other versions of social contract, Rawls defines the original position in a similar approach as social contract as a situation where the individual members of society come together to set up the rules of the society and, in doing so, establish the principle of justice. Rawls presents his conception of justice as fairness through the requirement of original position to provide for mutual agreement fair among all the participants in the scenario of a hypothetical social contract.
The idea of original position, also known as the initial status quo, is central where it represents a hypothetical situation for establishing a fair principle of justice. The purpose of his original position is to yield principles to determine and assess the justice of political constitutions and of economic and social arrangements and the laws that sustain them. To do so, it is qualified in the original position that “to combine into one conception the totality of conditions which we are ready upon due reflection to recognize as reasonable in our conduct towards one another”.9 According to Dworkin, the original position is an intermediate conclusion, a halfway point in a deeper theory that provides philosophical arguments for its conditions10.
There is no distinction between status or position from one another, so that one party can make a balanced agreement that is Rawls's view as an "original position" which rests on the notion of a reflective equilibrium based on the characteristics of rationality, freedom, and equality to regulate the basic structure of society11. In sum, the original position is simply a device of representation: it describes the parties, each of whom are responsible for the essential interests of a free and equal person, as fairly situated and as reaching an agreement subject to appropriate restrictions on what are to count as good reasons.12 The point where he diverges from the other traditions of social contract is when he introduces the concept of veil of ignorance.
Within the hypothetical situation known as the original position, the individuals of a society are hidden behind a veil of ignorance to ensure impartiality, shielding the parties from knowledge about the people they represent: about their gender, race, religious beliefs, wealth, and similar facts. 13The “veil of ignorance” is a moral reasoning device designed to promote impartial decision making by denying decision makers access to potentially biased information about who will benefit the most or the least from the available options14. The removal of the knowledge of particulars will create a situation in which people can unanimously agree on what is fair 15since no one can tailor principles for their maximum benefit when hidden by anonymity.

Principles of Justice
Based on the original position with blinding approach, Rawls presents an argument that every rational individuals would mutually agree in the given two key principles of justice:
A.        Liberty Principle:
Every individual acquires a scheme of equal basic liberties, which is then compatible with the similar scheme provided for all. Every individual has rights attributed equally to fully adapt the basic liberties, which Rawls has identified as a collection of fundamental rights necessary for individuals including the freedom of speech and expression, conscience and religion, assembly, personal property and other forms of political liberties. This principle can also be regarded as the principle of equal rights which is inversely proportional to the obligations bestowed on an individual
Rawls maintains that there is a simple priority relationship between the two: "First Priority Rule (The Priority of Liberty). The principles of justice are to be ranked in lexical order and therefore liberty can be restricted only for the sake of liberty”16. The arrangement of such liberty attributed to an individual should not infringe the scheme of liberties attributed to another which simply refers that exercise of right by an individual should always be compatible with the same right of others.
Mill and Rawls agree, that liberty is essential for individual development; and Mill, no less than Rawls, upholds the "priority of liberty” 17 however, Mill’s approach towards liberty is individualistic with roots of utilitarianism while Rawls’ has applied an egalitarian concept with its roots in the social contract theory. One very important difference is that for Mill the Liberty Principle is not part of a larger view which  holds that the liberal state must be ‘ethically neutral’ – whereas that requirement is a central feature of Rawls’ liberalism. 18
B.        Difference Principle:
This principle mainly ensures that the social and the economic inequalities be arranged in an order as;
a)         Reasonably expected to be for everyone’s advantage and
b)         Attached in positions ensuring conditions of fair equality of opportunity for all.
The difference principle allows for prioritization of basic liberties ensuring that the inequalities support the least advantaged members in a society, allowing a fair system of cooperation. The difference principle plays a very important role, since the justification of social and economic inequalities is made to depend upon satisfying it. The difference principle states that the long-run expectations of the least advantaged social group should be maximized. 19 So, these principles permit inequalities beneficial to everyone, especially the marginalized community laying groundwork for distributive justice. This means the economic inequalities in society are agreed upon only if they enhance the situation of the most disadvantaged individuals as compared to a situation with no inequalities.
Additionally, Rawls has also advocated for integration of maximin strategy, the idea behind this strategy is that one ought to choose that act which maximizes his minimum gain (or, what comes to the same thing, minimizes his maximum loss)20. In other words, the societal structure can only be judged by the provisions for maximized advantage for the least advantaged individual. Whereas, such disparity can only be acceptable when associated with positions without barriers, any forms of discrimination and fair access to all individuals to attain that position.
Rawls prioritizes the Liberty principle over the difference principle. The basic scheme of liberty and the rights cannot be withheld for any economic or social benefit unlike utilitarianism. Within the Difference Principle, fair and equal advantage to all has been prioritized over the maximin principle which means the society must ensure fair and equal advantage to all before any of the inequalities are considered acceptable for marginalized communities. 

Criticisms of Rawls’ Theory
Rawls’ framework does not appropriately recognize and address the social basis of self-respect and the impact the distribution of economic power has in shaping the social basis of inequality. In different contexts, Rawls’s own concern for what he calls the ‘social bases of self-respect’ may require the public endorsement of different principles of justice or different specifications of the standard of justice.21 Rawls contradicts when he admits that the equality in self-respect can co-exist with inequalities in economic power of the people as long as equality of opportunity to the members of society is ensured. Despite an adequate emphasis on the necessity of self-respect, he disregards the class character attached to the social relations in a capitalist society which is determined by a person’s relation to the means of production. There is no attaining equal liberty and an equality of self-respect without at least rough economic equality. The realities of capitalism, both laissez faire and modern, make impossible the attaining of equal liberty and human autonomy.22
It is not so that Rawls completely ignores the impact of economic structure in self-esteem. He argues that if self-esteem is influenced by the economic structure, it should be incorporated within the second principle. This comes as a surprise, especially when his idea of justice prioritizes equality in the social bases of self-respect above all other goods. He argues that equal liberty is non-negotiable since it ensures equal self-respect, which he believes to be the most important primary good. If social justice does not allow the exchange of equal liberty for economic benefits, it should not allow trading equal self-respect either. In this regard, it is important to recognize that Rawls’s account of self-respect throughout Theory is primarily a normative one, focusing mostly on self-respect as it would be shaped in a society organized by his principles of justice. 23
Rawls goes on to write that the equality of liberty leads to equality in social basis of self-respect at two levels: first, every citizen has the same political and legal status; second, democratic social associations ensure that everyone can engage in activities that affirm their sense of self. This also clearly shows his understanding of self-respect as completely distinct from economic positions. While political and legal apparatus, as he mentioned, are the means through which human dignity is protected, however, the very political and legal apparatus, and their functioning are the outcome of how economic distribution is made in the given society.
An unresolved conflict in Rawls’ system of justice stands in the way. On the one hand, he views self-respect as such an important concept that it requires equality and takes priority over all other goods in social justice while on the other, he sometimes treats self-respect as just another economic benefit that can be adjusted based on the overall need of the second principle. This duality creates a contradiction in how self-respect is valued within his framework.
Rawls does not attempt to develop a social understanding about the foundation of self-respect in capitalist democracies. However, he also does not defend the inevitability of limits that capitalism puts on economic life. He seems to accept the assumptions about human dignity that capitalist democracy promotes, rather than scrutinizing those ideas.
Bourgeois-democratic liberties typically focus on individual freedom, but they do not address the need for the democratic control in the workplace. For all the people to respect each other, it is imperative that we strive for a collective freedom. These include having a say in the decisions that affect lives of people, including that of the workplace. Without the ownership of the means of production that the workers use for production, every decision from the conditions of the wage-laborers to the appropriation of the output thus produced is made by the capitalist. The contradiction of social character of production and private appropriation of profit creates an unequal economic base. This results in the inequality in social relations thus curtailing the self-respect of the working class of the society.
In the last century, the advanced capitalist democracies have seen two big changes, namely (1) fewer big companies exercising more power and (2) more workers joining big companies, where they have less say and work in more harsh conditions. These changes have created at least two major social crises: first, ordinary people cannot really control the economic decisions that affect their lives and surroundings directly; second, people cannot control their own working conditions or the availability of jobs. So, without solving the crisis of powerlessness of democratic public in front of private corporations, and thus the loss of control over the decisions that directly affect the lives of people, we are nowhere in the discourse of protection of human dignity and mutual self-respect.

Conclusion
“A Theory of Justice" provides an essential framework regarding the idea of justice and fairness as discussed in legal theory. With a contrast of the background and earlier prevailing justice theories including Utilitarianism and Intuitionism, this paper underscores the relevance of the theory presented. The innovative ideas introduced by Rawls Including the idea of original position and the veil of ignorance has also been highlighted to discuss two key principles, namely The “Equal Liberty Principle” and “The Difference Principle” which have assisted in adopting a thoughtful approach when designing public conception of justice. Furthermore, the paper dissects and critiques the areas of shortcomings such as its abstract treatment of personhood, absence of a concrete social theory as a base along with the inadequacy in addressing the economic inequality and the power dynamics.
 
 

About the Authors

Aadarsha Ghatani

Aadarsha Ghatani

Aadarsha Ghatani, coordinator at Mimamsha, is currently pursuing B.A.LL.B. at Nepal Law Campus. He is interested in Marxist Philosophy, Political Economy and bridging them with legal studies.

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Abhiruchee Lamsal

Abhiruchee Lamsal

Abhiruchee Lamsal, is currently studying B.A.LL.B at Nepal Law. She is interested in legal philosophy, gender justice and is also a freelance writer.

View all posts by Abhiruchee Lamsal

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