## 1. Historical Background: The Moral Point of View



The idea of the moral point of view can be traced back to David
Hume's account of the "judicious spectator." Hume
sought to explain how moral judgments of approval and disapproval are
possible given that people normally are focused on achieving their own
interests and concerns. He conjectured that in making moral judgments
individuals abstract in imagination from their own interests and adopt
an impartial point of view from which they assess the effects of their
own and others' actions on the interests of everyone. Since,
according to Hume, we all can adopt this impartial perspective in
imagination, it accounts for our agreement in moral judgments (see
Hume 1739 [1978, 581]; Rawls, LHMP 84-93, LHPP
184-187).



Subsequently, philosophers posited similar perspectives for moral
reasoning designed to yield impartial judgments once individuals
abstract from their own aims and interests and assess situations from
an impartial point of view. But rather than being mainly explanatory
of moral judgments like Hume's "judicious
spectator," the role of these impartial perspectives is to serve
as a basis from which to assess and justify moral rules and
principles. Kant's categorical imperative procedure, Adam
Smith's "impartial spectator,", and Sidgwick's
"point of view of the universe" are all different versions
of the moral point of view.



An important feature of the moral point of view is that it is designed
to represent what is essential to the activity of moral reasoning. For
example, Kant's categorical imperative is envisioned as a point
of view any reasonable morally motivated person can adopt in
deliberating about what they ought morally to do (Rawls, CP 498ff;
LHMP). When joined with the common assumption that the totality of
moral reasons is final and override non-moral reasons, the moral point
of view might be regarded as the most fundamental perspective that we
can adopt in our reasoning about justice and what we morally ought to
do.



Rawls's idea of the original position, as initially conceived,
is his account of the moral point of view regarding matters of
justice. The original position is a hypothetical perspective that we
can adopt in our moral reasoning about the most basic principles of
social and political justice. What primarily distinguishes
Rawls's impartial perspective from its antecedents (in Hume,
Smith, Kant, etc.) is that, rather than representing the judgment of
one person, it is conceived socially, as a general agreement by
(representatives of all adult) members of an ongoing society. The
point of view of justice is then represented as a general
"social contract" or agreement by free and equal persons
on the basic terms of cooperation for their society.


## 2. The Original Position and Social Contract Doctrine



Historically the idea of a social contract had a more limited role
than Rawls assigns to it. In Thomas Hobbes and John Locke the social
contract serves as an argument for the legitimacy of political
authority. Hobbes argues that in a pre-social state of nature it would
be rational for all to agree to authorize one person to exercise the
absolute political power needed to maintain peace and enforce laws
necessary for productive social cooperation. (Hobbes, 1651) By
contrast, Locke argued against absolute monarchy by contending that no
existing political constitution is legitimate or just unless it
*could* be contracted into starting from a position of equal
right within a (relatively peaceful) state of nature, and without
violating any natural rights or duties. (Locke, 1690) For Rousseau and
perhaps Kant too, the idea of a social contract plays a different
role: It is an "idea of reason" (Kant) depicting a point
of view that lawmakers and citizens should adopt in their reasoning to
ascertain the "general will," which enables them to assess
existing laws and decide upon measures that promote justice and
citizens' common good. (Rousseau, 1762; Kant, 1793, 296-7;
Kant 1797, 480) Rawls generalizes on Locke's, Rousseau's
and Kant's natural rights theories of the social contract (TJ
vii/xviii rev.; 32/28 rev.): 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, he seeks in the original position
"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" (TJ 587/514 rev.).



Why does Rawls represent principles of justice as originating in a
kind of social contract? Rawls says that "justice as fairness
assigns a certain primacy to the social" (CP 339). Unlike
Kant's categorical imperative procedure, the original position
is designed to represent the predominantly social bases of justice. To
say that justice is predominantly social does not mean that people do
not have "natural" moral rights and duties outside society
or in non-cooperative circumstances--Rawls clearly thinks there
are human rights (see LP, SS10) and certain "natural
duties" (TJ, SSSS19, 51) that apply to all human beings
as such. But whatever our natural or human rights and duties may be,
they do not provide an adequate basis for ascertaining the rights and
duties of justice that we owe one another as members of the same
ongoing political society. It is in large part due to "the
profoundly social nature of human relationships" (PL 259) that
Rawls sees political and economic justice as grounded in social
cooperation on terms of reciprocity and mutual respect. For this
reason Rawls eschews the idea of a state of nature where pre-social
but fully rational individuals agree to cooperative terms (as in
Hobbesian views), or where pre-political persons with antecedent
natural rights agree on the form of a political constitution (as in
Locke). Rawls regards us as social beings in the sense that in the
absence of society and social development we have but inchoate and
unrealized capacities, including our capacities for rationality,
morality, even language itself. As Rousseau says, outside society we
are but "stupid and shortsighted animals" (Rousseau, 1762,
bk.I, ch.8, par. 1). This draws into question the main point of the
idea of a state of nature in Hobbesian and Lockean views, which is to
distinguish the rights, claims, duties, powers and competencies we
have prior to membership in society from those we acquire as members
of society. Not being members of some society is not an option for us.
In so far as we are rational and reasonable beings at all, we have
developed as members of some society, within its social framework and
institutions. Accordingly Rawls says that no sense can be made of the
notion of that part of an individual's social benefits that
exceed what would have been that person's situation in a state
of nature (PL 278). The traditional idea of pre-social or even
pre-political rational moral agents thus plays no role in
Rawls's account of justice and the social contract; for him the
state of nature is an idea without moral significance (PL
278-280). The original position is set forth largely as an
alternative to the state of nature and is regarded by Rawls as the
appropriate initial situation for a social contract. (Below we
consider a further reason behind Rawls's rejection of the state
of nature: it does not adequately allow for impartial judgment and the
equality of persons.)



Another way Rawls represents the "profoundly social" bases
of principles of justice is by focusing on "the basic structure
of society." The "first subject of justice," Rawls
says, is principles that regulate the basic social institutions that
constitute the "basic structure of society" (TJ sect.2).
These basic institutions include the political constitution, which
specifies political offices and procedures for legislating and
enforcing laws and the system of trials for adjudicating disputes; the
bases and organization of the economic system, including laws of
property, its transfer and distribution, contractual relations, etc.
which are all necessary for economic production, exchange, and
consumption; and finally norms that define and regulate permissible
forms of the family, which is necessary to reproduce and perpetuate
society from one generation to the next. It is the role of principles
of justice to specify and assess the system of rules that constitute
these basic institutions, and determine the fair distribution of
rights, duties, opportunities, powers and positions of office, and
income and wealth realized within them. What makes these basic social
institutions and their arrangement the first subject for principles of
social justice is that they are all necessary to social cooperation
and have such profound influences on our circumstances, aims,
characters, and future prospects. No stable, enduring society could
exist without certain rules of property, contract, and transfer of
goods and resources, for they make economic production, trade, and
consumption possible. Nor could a society long endure without some
political mechanism for resolving disputes and making, revising,
interpreting, and enforcing its economic and other cooperative norms;
nor without some form of the family, to reproduce, sustain, and
nurture members of its future generations. This is what distinguishes
the social institutions constituting the basic structure from other
profoundly influential social institutions, such as religion; religion
and other social institutions are not basic in Rawls's sense
because they are not generally necessary to social cooperation among
members of society. (Even if certain religions have been ideologically
necessary to sustain the norms of particular societies, many societies
can and do exist without the involvement or support of religious
institutions).



Another reason Rawls regards the original position as the appropriate
setting for a social contract is implicit in his stated aim in *A
Theory of Justice*: it is to discover the most appropriate moral
conception of justice for a democratic society wherein persons regard
themselves as free and equal citizens (TJ viii/xviii rev.). Here he
assumes an ideal of citizens as "moral persons" who regard
themselves as free and equal, have a conception of their rational
good, and have a "sense of justice." "Moral
persons" (an 18th century term) are not all
necessarily morally good persons. Instead moral persons are persons
who are capable of being *rational* since they have the
capacities to form, revise and pursue a rational conception of their
good; moreover, moral persons also are capable of being
*reasonable* since they have a moral capacity for a sense of
justice--to cooperate with others on terms that are fair and to
understand, apply, and act upon principles of justice and their
requirements. Because people have these capacities, or "moral
powers," (as Rawls calls them, following Kant) we hold them
responsible for their actions, and they are regarded as capable of
freely pursuing their interests and engaging in social cooperation.
Rawls's idea is that, being reasonable and rational, moral
persons (like us) who regard ourselves as free and equal should be in
a position to accept and endorse as both rational and morally
justifiable the principles of justice regulating our basic social
institutions and individual conduct. Otherwise, our conduct is coerced
or manipulated for reasons we cannot (reasonably or rationally) accept
and we are not fundamentally free persons. Starting from these
assumptions, Rawls construes the moral point of view from which to
decide moral principles of justice as a *social contract* in
which (representatives of) free and equal persons are given the task
of coming to an agreement on principles of justice that are to
regulate their social and political relations in perpetuity. How
otherwise, Rawls contends, should we represent the justification of
principles of justice for free and equal persons who have different
conceptions of their good, as well as different religious,
philosophical, and moral views? There is no commonly accepted moral or
religious authority or doctrine to which they could appeal in order to
discover principles of justice that all could agree to and accept.
Rawls contends that, since his aim is to discover a conception of
justice appropriate for a democratic society, it should be justifiable
to free and equal persons in their capacity as citizens on terms which
all can endorse and accept. The role of the social contract is to
represent this idea, that the basic principles of social cooperation
are justifiable hence acceptable to all reasonable and rational
members of society, and that they are principles which all can commit
themselves to support and comply with.



How is this social contract to be conceived? It is not an historical
event that must actually take place at some point in time (TJ 120/104
rev.ed.). It is rather a hypothetical situation, a kind of
"thought experiment" (JF 17), that is designed to uncover
the most reasonable principles of justice. Rawls maintains (in LHPP,
cf. p.15) that the major advocates of social contract
doctrine--Hobbes, Locke, Rousseau, and Kant--all regarded
the social contract, as a hypothetical event. Hobbes and Locke thus
posited a hypothetical state of nature in which there is no political
authority, and where people are regarded as rational and (for Locke)
also reasonable. The purpose of this hypothetical social contract is
to demonstrate what types of political constitutions and governments
are politically legitimate, and determine the nature of
individuals' political obligations (*LHPP* p.16). The
presumption is that if a constitution or form government could be
agreed to by rational persons subject to it according to principles
and terms they all accept, then it should be acceptable to rational
persons generally, including you and me, and hence is legitimate and
is the source of our political obligations. Thus, Hobbes argues that
all rational persons in a state of nature would agree to authorize an
absolute sovereign to enforce the "laws of nature"
necessary for society; whereas Locke comes to the opposite conclusion,
contending that absolutism would be rejected in favor of
constitutional monarchy with a representative assembly. Similarly, in
Rousseau and Kant, the social contract is a way to reason about the
General Will, including the political constitution and laws that
hypothetical moral agents would all agree to in order to promote the
common good and realize the freedom and equality of citizens.
(Rousseau, 1762, I:6, p.148; II:1, p.153; II:11, p.170; Kant, 1793,
296-7; Kant 1797, 480; cf. Rawls, LHPP, 214-48).



Rawls employs the idea of a hypothetical social contract for more
general purposes than his predecessors. He aims to provide principles
of justice that can be applied to determine not only the justice of
political constitutions and the laws, but also the justice of the
institution of property and of social and economic arrangements for
the production and distribution of income and wealth, as well as the
distribution of educational and work opportunities, and of powers and
positions of office and responsibility.



Some have objected that hypothetical agreements cannot bind or
obligate people; only actual contracts or agreements can impose
obligations and commitments (Dworkin, 1977, 150ff). But the original
position is not intended to impose new obligations on us; rather it is
a device for discovery and justification: It is to be used, as Rawls
says, "to help us work out what we now think" (CP 402); it
incorporates "conditions...we do in fact accept" (TJ
587/514 rev.) and is a kind of "thought experiment for the
purpose of public- and self-clarification" (JF, p.17).
Hypothetical agreement in the original position does not then bind
anyone to duties or commitments they do not already have. Its point
rather is to help discover and explicate the requirements of our moral
concepts of justice and enable us to draw the consequences of
considered moral convictions of justice that we all presumably share.
Whether we in turn consciously accept or agree to these consequences
and the principles and duties they implicate once brought to our
awareness does not undermine their moral justification. The point
rather of conjecturing the outcome of a hypothetical agreement is
that, if the premises underlying the original position correctly
represent our most deeply held considered moral convictions and
concepts of justice, then we are morally and rationally committed to
endorsing the resulting principles and duties whether or not we
actually accept or agree to them. Not to do so implies a failure to
accept and live up to the consequences of our own moral convictions
about justice.



Here critics may deny that the original position incorporates
*all* the relevant reasons and considered moral convictions for
justifying principles of justice (e.g. it omits *beneficence*,
or the parties' knowledge of their final ends), and/or that some
reasons it incorporates are not relevant to moral justification to
begin with (such as the *publicity* of fundamental principles,
as utilitarians argue, Sidgwick, 1907, or the *separateness or
persons*, *temporal neutrality* and *rationality of the
parties* in promoting their own conception of the good). (Parfit,
1985, 163, 336; Cohen, G.A., 2009; Cohen, J., 2015,). Or they may
argue that the state or nature, not the original position, is the
appropriate perspective from which to ascertain fundamental principles
of justice, since individuals moral and property rights are pre-social
and not dependent upon social cooperation. (Nozick, 1974,
183-231).


## 3. The Veil of Ignorance



Rawls calls his conception "justice as fairness." His aim
in designing the original position is to describe an agreement
situation that is fair among all the parties to the hypothetical
social contract. He assumes that if the parties are fairly situated
and take all relevant information into account, then the principles
they agree to are also fair. The fairness of the original agreement
situation transfers to the principles everyone agrees to; furthermore,
whatever laws or institutions are required by the principles of
justice are also fair. The principles of justice chosen in the
original position are in this way the result of a choice procedure
designed to "incorporate pure procedural justice at the highest
level" (CP, 310, cf. TJ 120/104). This feature of Rawls's
original position is closely related to his constructivism, and his
subsequent understanding of the original position as a
"procedure of construction"; see the supplementary
section:



> 
> Constructivism, Objectivity, Autonomy, and the Original Position,
>  



in the supplementary document
 Further Topics on the Original Position.



There are different ways to define a fair agreement situation
depending on the purpose of the agreement and the description of the
parties to it. For example, certain facts are relevant to entering a
fair employment contract - knowledge of a prospective
employee's talents, skills, prior training, experience,
motivation, and reliability - that may not be relevant to other
fair agreements. What is a fair agreement situation among free and
equal persons when the purpose of the agreement is fundamental
principles of justice for the basic structure of society? What sort of
facts should the parties to such a fundamental social contract know,
and what sort of facts are irrelevant or even prejudicial to a fair
agreement? Here it is helpful to compare Rawls's and
Locke's social contracts. A feature of Locke's social
contract is that it transpires in a state of nature among free and
equal persons who know everything about themselves that you and I know
about ourselves and each other. Thus, Locke's parties know their
natural talents, skills, education, and other personal
characteristics; their racial and ethnic group, gender, social class,
and occupations; their level of wealth and income, their religious and
moral beliefs, and so on. Given this knowledge, Locke assumes that,
while starting from a position of equal political right, the great
majority of free and equal persons in a state of nature -
including all women and racial minorities, and all other men who do
not meet a rigid property qualification - could and most likely
would rationally agree to alienate their natural rights of equal
political jurisdiction in order to gain the benefits of political
society. Thus, Locke envisions as legitimate a constitutional monarchy
that is in effect a gender-and-racially biased class state wherein a
small restricted class of amply propertied white males exercise
political rights to vote, hold office, exercise political and social
influence, and enjoy other important benefits and responsibilities to
the exclusion of everyone else (see Rawls, LHPP, 138-139).



The problem with this arrangement, of course, is that gender and
racial classifications, social class, wealth and lack thereof, are,
like absence of religious belief, not good reasons for depriving free
and equal persons of their equal political rights or opportunities to
occupy social and political positions. Knowledge of these and other
facts are not then morally relevant for deciding who should qualify to
vote, hold office, and actively participate in governing and
administering society. Rawls suggests that the reason Locke's
social contract results in this unjust outcome is that it transpires
(hypothetically) under unfair conditions of a state of nature, where
the parties have complete knowledge of their circumstances,
characteristics and social situations. Socially powerful and wealthy
parties then have access to and can unfairly benefit from their
knowledge of their "favorable position and exercise their threat
advantage" to extract favorable terms of cooperation for
themselves from those in less favorable positions (JF 16).
Consequently, the parties' judgments regarding constitutional
provisions are biased by their knowledge of their particular
circumstances and their decisions are insufficiently impartial.



The remedy for such biases of judgment is to redefine the initial
situation within which the social contract transpires. Rather than a
state of nature Rawls situates the parties to the social contract so
that they do not have access to factual knowledge that can distort
their judgments and result in unfair principles. Rawls's
original position is an initial agreement situation wherein the
parties are without information enabling them to tailor principles of
justice favorable to their personal circumstances and interests. Among
the essential features of the original position are that no one knows
their place in society, class position, wealth, or social status, nor
does anyone know their race, gender, fortune or misfortune in the
distribution of natural assets and abilities, level of intelligence,
strength, education, and the like. Rawls even assumes that the parties
do not know their values or "conceptions of the good,"
their religious or philosophical convictions, or their special
psychological propensities. The principles of justice are chosen
behind a "veil of ignorance" (TJ 12/11). This veil of
ignorance deprives the parties of all knowledge of particular facts
about themselves, about one another, and even about their society and
its history.



The parties are not however completely ignorant of facts. They know
all kinds of general facts about persons and societies, including
knowledge of relatively uncontroversial scientific laws and
generalizations accepted within the natural and social sciences
- economics, psychology, political science, biology, and other
natural sciences (including applications of Darwinian evolutionary
theory that are generally accepted by scientists, however
controversial they may be among religious fundamentalists). They know
then about the general tendencies of human behavior and psychological
development, about neuropsychology and biological evolution, and about
how economic markets work, including neo-classical price theory of
supply and demand. As discussed below, they also know about the
circumstances of justice--moderate scarcity and limited
altruism--as well as the desirability of the "primary
social goods" that are needed by anyone in modern society to
live a good life and to develop their "moral powers" and
other capacities. What the parties lack however is knowledge of any
particular facts about their own and other persons' lives, as
well as knowledge of any historical facts about their society and its
population, its level of wealth and resources, religious institutions,
etc.. Rawls thinks that since the parties are required to come to an
agreement on objective principles that supply universal standards of
justice applying across all societies, knowledge of particular and
historical facts about any person or society is morally irrelevant and
potentially prejudicial to their decision.



Another reason Rawls gives for such a "thick" veil of
ignorance is that it is designed to be a strict "position of
equality" (TJ 12/11) that represents persons purely in their
capacity as free and equal moral persons. The parties in the original
position do not know any particular facts about themselves or society;
they all have the same general information. They are then situated
equally in a very strong way, "symmetrically" (JF 18) and
purely as free and equal moral persons. They know only characteristics
and interests they share in their capacity as free and equal moral
persons--their "higher-order interests" in developing
the moral powers of justice and rationality, their need for the
primary social goods, and so on. The moral powers, Rawls contends, are
the "basis of equality, the features of human beings in virtue
of which they are to be treated in accordance with the principles of
justice" (TJ, 504/441). Knowledge of the moral powers and their
essential role in social cooperation, along with knowledge of other
general facts, is all that is morally relevant, Rawls believes, to a
decision on principles of justice that are to reflect people's
status as free and equal moral persons. A thick veil of ignorance thus
is designed to represent the equality of persons purely as moral
persons, and not in any other contingent capacity or social role. In
this regard the veil of ignorance interprets the Kantian idea of
equality as equal respect for moral persons (cf. CP 255).



Many criticisms have been leveled against Rawls's veil of
ignorance. Among the more common criticisms are that the
parties' choice in the original position is indeterminate (Sen,
2009, 11-12, 56-58), or would result in choice of the
principle of (average) utility (Harsanyi, 1975), or a principle of
relative prioritarianism that gives greater weight to but does not
maximize the least advantaged position (Buchak, 2017) (The argument
for the choice of the principle of average utility is discussed
below.) Among reasons given for the indeterminacy of decision in the
original position are that the parties are deprived of so much
information about themselves that they are psychologically incapable
of making a choice; or they cannot decide between a plurality of
reasonable principles. (Sen 2009, 56-58). Or they are incapable
of making a *rational* choice, since we cannot decide upon
ethical principles without knowing our primary purposes in life, the
values of community, or certain other final ends and commitments.
(MacIntyre, 1981; Sandel 1982)



One answer to to the criticism of inability to make a rational choice
due to ignorance of our final ends is that we do not need to know
everything about ourselves, including these primary purposes, to make
rational decisions about the background social conditions needed to
pursue these primary purposes. For example, whatever our ends, we know
that personal security and an absence of social chaos are conditions
of most anyone's living a good life (as Hobbes contends).
Similarly, though Rawls's parties do not know their own values
and commitments, they do know that as free and equal persons they
require an adequate share of primary social goods (rights and
liberties, powers and opportunities, income and wealth, and the social
bases of self-respect) to effectively pursue their purposes, whatever
they may be. They also know they have a "higher-order
interest" in adequately developing and exercising their
"moral powers" - the capacities to be rational and
reasonable - which are conditions of responsible agency,
effectively pursuing one's purposes, and engaging in social
cooperation. Rawls contends that knowledge of these "essential
goods" is sufficient for a rational choice on principles of
justice by the parties in the original position.



To the objection that choice behind the veil of ignorance is
psychologically impossible, Rawls says that it is important not to get
too caught up in the theoretical fiction of the original position, as
if it were some historical event among real people who are being asked
to do something impossible. The original position is not supposed to
be realistic but is a "device of representation" (PL 27),
or a "thought experiment," (JF, 83), that is designed to
organize our considered convictions of justice and clarify their
implications. The parties in it are not real but are "artificial
persons" who have a role to play in this thought experiment.
They represent an ideal of free and equal reasonable and rational
moral persons that Rawls assumes is implicit in our reasoning about
justice. The veil of ignorance is a representation of the kinds of
reasons and information that are relevant to a decision on principles
of justice for the basic structure of a society of free and equal
moral persons (TJ 17/16). Many kinds of reasons and facts are not
morally relevant to that kind of decision (e.g., information about
people's race, gender, religious affiliation, wealth, and even,
Rawls says more controversially, their conceptions of their good),
just as many different kinds of reasons and facts are irrelevant to
mathematicians' ability to work out the formal proof of a
theorem. As a mathematician, scientist, or musician exercise their
expertise by ignoring knowledge of particular facts about themselves,
presumably we can do so too in reasoning about principles of justice
for the basic structure of society. Rawls says we can "enter the
original position at any time simply by reasoning in accordance with
the enumerated restrictions on information," (PL 27) and
considering general facts about persons, their needs, and social and
economic cooperation that are provided to the parties (TJ 120/104,
587/514).



A related criticism of Rawls's "thick" veil of
ignorance is that even if the parties can make certain rational
decisions in their interest without knowledge of their final ends,
still they cannot come to a decision about principles of justice
without knowing the desires and interests of people. For justice
consists of the measures that most effectively promote good
consequences, and these ultimately reflect facts about
individuals' utility or welfare. This criticism is mirrored in
utilitarian versions of the moral point of view, which incorporate a
"thin" veil of ignorance that represents a different idea
of impartiality. The impartial sympathetic spectator found in David
Hume and Adam Smith, or the self-interested rational chooser in John
Harsanyi's average utilitarian account, all have complete
knowledge of everyone's desires, interests and purposes as well
as knowledge of particular facts about people and their historical
situations. Impartiality is achieved by depriving the impartial
observer or rational chooser of any knowledge of its own identity.
This leads it to give equal consideration to everyone's desires
and interests, and impartially take everyone's desires and
interests into account. Since rationality is presumed to involve
maximizing something - or taking the most effective means to
promote the greatest realization of one's ends - the
impartial observer/chooser rationally chooses the rule or course of
action that maximizes the satisfaction of desires, or utility
(aggregate or average), summed across all persons. (See TJ,
SS30)



Rawls's original position with its "thick" veil of
ignorance represents a different conception of impartiality than the
utilitarian requirement that equal consideration be given to
everyone's desires, preferences, or interests. The original
position abstracts from all information about current circumstances
and the status quo, including everyone's desires and particular
interests. Utilitarians assume peoples' desires and interests
are given by their circumstances and seek to maximize their
satisfaction; in so doing utilitarians suspend judgment regarding the
moral permissibility of peoples' desires, preferences, and ends
and of the social circumstances and institutions within which these
are shaped and cultivated. For Rawls, a primary reason for a thick
veil of ignorance is to enable an unbiased assessment of the justice
of existing social and political institutions and of existing desires,
preferences, and conceptions of the good that they sustain.
People's desires and purposes are not then assumed to be given,
whatever they are, and then promoted and fulfilled. On Rawls's
Kantian view, principles of right and justice are designed to put
limits on what satisfactions and purposes have value and impose
restrictions on what are reasonable conceptions of persons'
good. This basically is what Rawls means by "*the priority of
right over the good*." People's desires and
aspirations are constrained from the outset by principles of justice,
which specify the criteria for determining permissible ends and
conceptions of the good. (TJ 31-32/27-28) If the parties
to Rawls's original position had knowledge of peoples'
beliefs and desires, as well as knowledge of the laws, institutions
and circumstances of their society, then this knowledge would
influence their decisions on principles of justice. The principles
agreed to would then not be sufficiently detached from the very
desires, circumstances, and institutions these principles are to
critically assess. Since utilitarians take peoples' desires,
preferences, and/or ends as given under existing circumstances, any
principles, laws, or institutions chosen behind their thin veil of
ignorance will reflect and be biased by the status quo. To take an
obvious counterexample, there is little if any justice in laws
approved from a utilitarian impartial perspective when these laws take
into account racially prejudiced preferences which are cultivated by
grossly unequal, racially discriminatory and segregated social
conditions. To impartially give equal consideration to
everyone's desires formed under such under unjust conditions is
hardly sufficient to meet requirements of justice. This illustrates
some of the reasons for a "thick" as opposed to a
"thin" veil of ignorance.


## 4. Description of the Parties: Rationality and the Primary Social Goods



Rawls says that in the original position, "the Reasonable frames
the Rational" (CP 319). He means the OP is a situation where
rational choice of the parties is made subject to reasonable (or
moral) constraints. In what sense are the parties and their choice and
agreement rational? Philosophers have different understandings of
practical rationality. Rawls seeks to incorporate a relatively
uncontroversial account of rationality into the original position, one
that he thinks most any account of practical rationality would endorse
as at least necessary for rational decision. The parties are then
described as rational in a formal or "thin" sense that is
characteristic of the theories of rational and social choice. They are
resourceful, take effective means to their ends, and seek to make
their preferences consistent. They also take the course of action that
is more likely to achieve their ends (other things being equal). And
they choose courses of action that satisfy more rather than fewer of
their purposes. Rawls calls these principles of rational choice the
"counting principles" (TJ SSSS25, 63; JF 87).



More generally, for Rawls rational persons upon reflection can
formulate a *conception of their good*, or of their primary
values and purposes and the best way of life for themselves to live
given their purposes. This conception incorporates their primary aims,
ambitions, and commitments to others, and is informed by the
conscientious moral, religious, and philosophical convictions that
give meaning for them to their lives. Ideally, rational persons have
carefully thought about these things and their relative importance,
and they can coherently order their purposes and commitments into a
"*rational plan of life*," which extends over their
lifetimes (TJ SSSS63-64). For Rawls, rational persons
regard life as a whole, and do not give preference to any particular
period of it. Rather in drawing up their rational plans, they are
equally concerned with their (future) good at each part of their
lives. In this regard, rational persons are
*prudent*--they care for their future good, and while they
may discount the importance of future purposes based on probability
assessments, they do not discount the achievement of their future
purposes simply because they are in the future (TJ, SS45). (For a
different view, see Parfit, 1984)



These primary aims, convictions, ambitions, and commitments are among
the primary motivations of the parties in the original position. The
parties want to provide favorable conditions for the pursuit of the
various elements of the rational plan of life that defines a good life
for them. This is ultimately what the parties are trying to accomplish
in their choice of principles of justice. In this sense they are
rational.



Rawls says the parties in the original position are "mutually
disinterested," in the sense that "they take no interest
in each other's interests" (TJ 110/[omitted in rev. ed.]).
This does not mean that they are self-interested or selfish persons,
indifferent to the welfare of others. The interests advanced by the
parties' life plans, Rawls says, "are not assumed to be
interests in the self, they are interests of a self that regards its
conception of the good as worthy of satisfaction..." (TJ
127/110) Most people are concerned, not just with their own happiness
or welfare, but with others as well, and have all kinds of
commitments, including other-regarding, beneficent, and moral
purposes, that are part of their conceptions of the good. But in the
original position itself the parties are not altruistically motivated
to benefit *each other, in their capacity as contracting
parties*. They try to do as best as they can for themselves and
for those persons and causes that they care for. Their situation is
comparable, Rawls says, to that of *"*trustees or
guardians" acting to promote the interests of the beneficiaries
they represent. (JF, 84-85) Trustees cannot sacrifice the
well-being of the beneficiary they represent to benefit other trustees
or individuals. If they did, they would be derelict in their duties.
It is perhaps to address the common criticism that the parties to the
original position are self-interested that Rawls in the revised
edition (TJ 110 rev.) omitted the phrase from the 1st
edition, cited above, that "the parties take no interest in each
other's interest." Moreover in later writings increasingly
he says that we should imagine that the parties are
"representatives" of free and equal citizens and their
interests and "act as guardians or trustees," seeking to
do as best as they can for the particular individuals that each
trustee represents. (PL SS4, JFSS24) In either case, Rawls
believes this account of the parties' motivations promotes
greater clarity, and that to attribute to the parties moral
motivations or benevolence towards each other would not result in
definite choice of a conception of justice (TJ,
148-9/128-9; 584/512). (For example, how much benevolence
should the parties have towards one another or towards people in
general? Surely not impartial benevolence towards everyone, for then
we might as well dispense with the social contract and rely on a
disinterested impartial spectator point of view. It is one of the
"circumstances of justice" that people have different and
conflicting values, and they value their own purposes and special
commitments to others more than they value others' purposes and
special commitments, This is a good thing, not to be discouraged or
undermined by justice, but rather regulated by it, since special
obligations and commitments to specific others give meaning to
people's lives. (cf. Scheffler, 2001, chs.3, 4, 6) But if not
equal concern for other parties and/or persons including themselves
(and perhaps other animals), then how much care and concern should the
parties in the original position exhibit towards others generally, as
compared with concern for themselves and their own good? (Half as much
concern for others' good as for their own? One-fifth as much?
There is no clear answer.) Rawls's thought is that, so far as
justice is concerned, fair regard for others' interests is best
represented by each party's rational choice behind a thick veil
of ignorance; for each party has to be equally concerned with the
consequences of their choice of principles for each position in
society, since they could end up in that same position.



Mutual disinterest of the parties also means they are not moved by
envy or rancor towards each other or others generally. This implies
that the parties do not strive to be wealthier or better off than
others for its own sake, and thus do not sacrifice advantages to
prevent others from having more than they do. Instead, each party in
the original position is motivated to do as well as they can in
promoting the optimal achievement of the many purposes that constitute
their rational conception of the good, without regard to how much or
how little others may have. For this reason they strive to guarantee
themselves a share of primary social goods that is at least sufficient
to enable them each to effectively pursue their (unknown) conception
of the good.



Another feature of the parties is that they represent not just
themselves, but also family lines, including their descendants, or at
least their own children. This assumption is needed, Rawls says, to
include representation of "the interests of all,"
including children and future generations. In the first edition of
*Theory* Rawls says. "For example, we may think of the
parties as heads of families and therefore as having a desire to
further the welfare of their nearest descendants" (Rawls 1971,
128). Because of criticisms of the heads of families assumption, (by
English, 1977 and others) Rawls said in the revised edition that the
problem of future generations can be addressed by the parties assuming
that all preceding generations have followed the same principles that
the parties choose to apply to future generations. (Rawls 1999a, 111
rev.). The "heads of families" assumption is discussed
further in connection with feminist criticisms of Rawls in the
supplementary section:



> 
> A Liberal Feminist Critique of the Original Position and Justice within the Family
> 



in the supplementary document
 Further Topics on the Original Position.



Though the parties are not motivated by beneficence or even a concern
for justice, still they have a moral capacity for
*reasonableness* and a *sense of justice* (TJ, 145/125
rev.). Rawls distinguishes between the requirements of rationality and
reasonableness; both are part of practical reasoning about what we
ought to do (JF 6-7; 81-2). The concept of "the
Rational" concerns a person's *good*--hence
Rawls refers to his account of the good as "goodness as
rationality." A person's good for Rawls is the rational
plan of life they would choose under hypothetical conditions of
"deliberative rationality," where there is full knowledge
of one's circumstances, capacities, and interests, as well as
knowledge of the likelihood of succeeding at alternative life plans
one may be drawn to (TJ, SS64). "The Reasonable" on
the other hand addresses the concept and principles of *right*,
including individual moral duties and obligations as well as moral
requirements of right and justice that apply to institutions and
society. Both rationality and reasonableness are independent aspects
of practical reason for Rawls. They are independent in that Rawls,
unlike Hobbes and other interest-based social contract views, does not
regard justice and the reasonable as simply principles of prudence
that are beneficial for a person to comply with in order to
successfully pursue their purposes in social contexts. (Cf. Gauthier,
1984) Unlike Hobbes, Rawls does not argue that an immoral or unjust
person is irrational, or that morality is necessarily required by
rationality in the narrow sense of maximizing individual utility or
taking effective means to realize one's purposes. But
rational persons who violate demands of justice are unreasonable in so
far as they infringe upon moral principles and requirements of
practical reasoning. Being reasonable, even if not required by
rationality, is still an independent aspect of practical reason. Rawls
resembles Kant in this regard (PL 25n); his distinction between the
reasonable and rational parallels Kant's distinction between
categorical and hypothetical imperatives.



Essential to being reasonable is having a *sense of justice*
with the capacities to understand and reason about and act upon what
justice requires. The sense of justice is a normally effective desire
to comply with duties and obligations required by justice; it includes
a willingness to cooperate with others on terms that are fair and that
reasonable persons can accept and endorse. Rawls sees a sense of
justice as an attribute people normally have; it "would appear
to be a condition for human sociability" (TJ, 495/433 rev.). He
rejects the idea that people are motivated *only* by
self-interest in all that they do; he also rejects the Hobbesian
assumption that a willingness to do justice must be grounded in
enlightened self-interest. It is essential to Rawls's argument
for the feasibility and stability of justice as fairness that the
parties upon entering society have an effective sense of justice, and
that they are capable of doing what justice requires of them for its
own sake, or at least because they believe this is what morality
requires of them. An amoralist, Rawls believes, is largely a
philosophical construct; amoralists who actually exist Rawls regards
as sociopaths. "A capacity for a sense of justice ... would
appear to be a condition of sociability" (TJ 495/433).



Subsequent to A *Theory of Justice*, beginning in
'Kantian Constructivism in Moral Theory,' (1980) (CP
303ff.) Rawls says that the parties to the original position have a
"highest-order interest" in the development and full and
informed exercise of their two "moral powers": their
capacity for a sense of justice as well as in their capacity for a
rational conception of the good. Fulfilling these interests in the
moral powers is one of the main aims behind their agreement on
principles of justice. Subsequently in *Political Liberalism*
(1993) Rawls changed this to the parties' "higher order
interests" in development and exercise of the two moral powers
(to avoid giving the appearance that the moral powers were final ends
for free and equal moral persons, as was argued in TJ). The
parties' interest in developing these two moral powers is a
substantive feature of Rawls's account of the rationality of
free and equal persons in the original position itself. (In this
regard, his account of goodness as rationality is not as
"thin" as in social theory; cf. TJ 143/124 rev.) Here
Rawls is still not attributing specifically moral motives--a
desire to be reasonable and do what is right and just for their own
sake--to the *parties* in the original position. The idea
behind the parties' rationality in cultivating their sense of
justice is that, since being reasonable and exercising one's
sense of justice by complying with fair terms is a condition of human
sociability and social cooperation, then it is in people's
*rational interest*--part of their good--that they
normally develop their capacities for justice under social conditions.
Otherwise they will not be in a position to cooperate with others and
benefit from social life. A person who is without a sense of justice
is wholly unreasonable and as a result is normally eschewed by others,
for they are not trustworthy or reliable or even safe to interact
with. Since having a sense of justice is a condition of taking part in
social cooperation, the parties have a "higher-order
interest" in establishing conditions for the development and
full exercise of their capacity for a sense of justice. The
parties' interest in developing their capacity for a sense of
justice is then a rational interest in being reasonable; justice is
then regarded *by the parties* as instrumental to their
realizing their conception of the good. (Here again, it is important
to distinguish the purely rational motivation of the parties or their
trustees in the original position from that of free and equal citizens
in a well-ordered society, who are normally morally motivated by their
sense of justice to do what is right and just for its own sake.)



Three factors then play a role in motivating the parties in the
original position: (1) First, they aim to advance their determinate
conception of the good, or rational plan of life, even though they do
not know what that conception is. Moreover, they also seek conditions
that enable them to exercise and develop their "moral
powers," namely (2) their rational capacities to form, revise
and rationally pursue a conception of their good, and (3) their
capacity to be reasonable and to have an effective sense of justice.
These are the three "higher-order interests" the parties
to Rawls's original position aim to promote in their agreement
on principles of justice.



The three higher-order interests provide the basis for Rawls's
account of *primary social goods*. (TJ SS15, PL
178-190) The primary goods are the all-purpose social means that
are necessary to the exercise and development of the moral powers and
to pursue a wide variety of conceptions of the good. Rawls describes
them initially in *Theory* as goods that any rational person
should want, whatever their rational plan of life. The primary social
goods are basically: rights and liberties; powers and diverse
opportunities; income and wealth; and the social bases of
self-respect. 'Powers' refer not (simply) to a capacity to
effect outcomes or influence others' behavior. Rawls rather uses
the term 'powers' to refer to the legal and other
institutional abilities and prerogatives that attend offices and
social position. Hence, he sometimes refers to the primary goods of
"powers and prerogatives of offices and positions of authority
and responsibility" (JF 58). Members of various professions and
trades have institutional powers and prerogatives that are
characteristic of their position and which are necessary if they are
to carry out their respective roles and responsibilities. By income
and wealth Rawls says he intends "all-purpose means" that
have an exchange value, which are generally needed to achieve a wide
range of ends (JF 58-59). Finally, "the social bases of
self-respect" are features of institutions that are needed to
enable people to have the confidence that they and their position in
society are respected and that their conception of the good is worth
pursuing and achievable by themselves. These features depend upon
history and culture. Primary among these social bases of self respect
in a democratic society, Rawls will contend, are equal recognition of
persons as citizens, and hence the institutional conditions needed for
equal citizenship, including equality of basic rights and liberties
with equal political rights; fair equality of opportunities; and
personal independence guaranteed by adequate material means for
achieving it. The social bases of self-respect are crucial to
Rawls's argument for *equal* basic liberties, especially
political equality and equal rights of political participation.



The parties to the original position are motivated to achieve a fully
adequate share of primary goods so they can achieve their higher-order
interests in pursuing their rational plans of life and exercising
their moral powers. "They assume that they normally prefer more
primary social goods rather than less" (TJ, 142/123 rev.). This
too is part of being rational. Because they are not envious, their
concern is with the absolute level of primary goods, not their share
relative to other persons.



To sum up, the parties in the original position are formally rational
in that they are assumed to have and to effectively pursue a rational
plan of life with a schedule of coherent purposes and commitments that
they find valuable and give their lives meaning. As part of their
rational plans, they have a substantive interest in the adequate
development and full exercise of their capacities to be rational and
to be reasonable. These "higher-order interests" together
with their rational life plans provide them with sufficient reason to
procure for themselves in their choice of principles of justice an
adequate share of the primary social goods that enable them to achieve
these higher-order ends and effectively pursue their conceptions of
the good.



A final feature of Rawls's account of rationality is a normal
human tendency he calls "the Aristotelian principle" (TJ
sect.65). This "deep psychological fact" says that, other
things being equal, people normally find activities that call upon the
exercise of their developed capacities to be more interesting and
preferable to engaging in simpler tasks, and their enjoyment increases
the more the capacity is developed and realized and the greater the
complexity of activities (TJ, 426/374). Humans enjoy doing something
as they become more proficient at it, and of two activities they
perform equally well, they normally prefer the one that calls upon a
larger repertoire of more intricate and subtler discriminations.
Rawls's examples: someone who does both activities well
generally prefers playing chess to checkers, and studying algebra to
arithmetic. (TJ 426/374) Moreover Rawls, citing J.S. Mill believes
that development at least some of our "higher capacities"
(Mill's term) is normally important to our sense of
self-respect. These general facts imply that rational people should
incorporate into their life plans activities that call upon the
exercise and development of their talents and skills and distinctly
human capacities (TJ 432/379). This motivation becomes especially
relevant to Rawls's argument for the stability of justice as
fairness, the good of social union, and the good of justice (TJ
SS79, SS86; see below, SS5.3). The important point here is
that the Aristotelian principle is taken into account by the parties
in their decision on principles of justice. They want to choose
principles that maintain their sense of self-respect and enable them
to freely develop their human capacities and pursue a wide range of
activities, as well as engage their capacities for a sense of
justice.


## 5. Other Conditions on Choice in the Original Position



The veil of ignorance is the primary moral constraint upon the
rational choice of the parties in the original position. There are
several other conditions imposed on their agreement.


### 5.1 The Circumstances of Justice (TJ SS22)



Among the general facts the parties know are "the circumstances
of justice." Rawls says these are "conditions under which
human cooperation is both possible and necessary" (TJ 126/109
rev.). Following Hume, Rawls distinguishes two general kinds: the
objective and subjective circumstances of justice. The former include
physical facts about human beings, such as their rough similarity in
mental and physical faculties, and vulnerability to the united force
of others. Objective circumstances also include conditions of moderate
scarcity of resources: there are not enough resources to satisfy
everyone's desires, but there are enough to provide all with
adequate satisfaction of their basic needs; unlike conditions of
extreme scarcity (e.g. famine), cooperation then seems productive and
worthwhile for people.



Among the subjective circumstances of justice are the parties'
mutual disinterestedness, which reflects the "limited
altruism" (TJ 146/127) of persons in society.. Free and equal
persons have their own plans of life and special commitments to
others, as well as different philosophical and religious beliefs and
moral doctrines (TJ 127/110). Hume says that if humans were
impartially benevolent, equally concerned with everyone's
welfare, then justice would be unnecessary. People then would
willingly sacrifice their interests for the greater advantage of
other. They would not be concerned about their personal rights or
possessions, and property would be unnecessary (Hume 1777 [1970,
185-186]). But we are more concerned with our own aims and
interests--which include our interests in the interests of those
nearer and dearer to us--than we are with the interests of
strangers with whom we have few if any interactions. This implies a
potential conflict of human interests. Rawls adds that concern for our
interests and plans of life does not mean we are selfish or have
interests only in ourselves--again, interests *of* a self
should not be confused with interests *in* oneself; we have
interests in others and in all kinds of causes, ends, and commitments
to other persons (TJ 127/110). But, as history shows, our benevolent
interests in others and in religious and philosophical doctrines are
at least as often the cause of social and international conflict as is
self-interest.



The subjective circumstances of justice also include limitations on
human knowledge, thought, and judgment, as well as emotional
influences and great diversity of experiences. These lead to biases
and inevitable disagreements in factual and other judgments, as well
as to differences in religious, philosophical, and moral convictions.
In *Political Liberalism*, Rawls highlights these subjective
circumstances, calling them "the burdens of judgment" (PL
54-58). They imply, significantly, that regardless how impartial
and altruistic people are, they still will disagree in their factual
judgments and in religious, philosophical and moral doctrines.
Disagreements in these matters are inevitable even among fully
rational and reasonable people. This is "the fact of reasonable
pluralism" (PL 36), which is another general fact known to the
parties in the original position. Reasonable pluralism of doctrines
lends significant support to Rawls's arguments for the first
principle of justice, especially to equal basic liberties of
conscience, expression, and association.


### 5.2 Publicity and other Formal Constraints of Right (TJ SS23)



There are five "formal constraints" associated with the
concept of right that Rawls says the parties must take into account in
coming to agreement on principles of justice. The more a conception of
justice satisfies these formal constraints of right, the more reason
the parties have to choose that conception. The formal constraints of
right are: generality, universality in application, ordering of
conflicting claims, publicity, and finality. The *ordering
condition* says that a conception of justice should aspire to
completeness: it should be able to resolve conflicting claims and
order their priority. Ordering implies a systematicity requirement:
principles of justice should provide a determinate resolution to
problems of justice that arise under them; and to the degree that a
conception of justice is not able to order conflicting claims and
resolve problems of justice, that gives greater reason against
choosing it in the original position compared with those that do. The
ordering condition is important in Rawls's argument against
pluralist moral doctrines he calls "Intuitionism."



Sidgwick attaches a great deal of importance to the ordering
condition, and contends that "Universal Hedonism" is the
only reasonable moral doctrine that can satisfy it (Sidgwick 1907
[1981], 406). Rawls would have to concede that justice as fairness
does not possess, at least theoretically, the same degree of
systematic ordering of claims as does hedonistic utilitarianism which
has cardinal measures of utility. For example, Rawls's priority
principles can resolve conflicting claims regarding the priority of
basic liberties over fair equality of opportunity, fair opportunity
over the difference principle, the difference principle over the
principle of efficiency and the general welfare, as well as many
disputes arising within the difference principle itself regarding
measures that maximally promote the position of the least advantaged.
But there is no priority principle or algorithm to resolve many
conflicts between basic liberties themselves (e.g. conflicts between
freedom of speech vs. rights of security and integrity of persons in
hate speech cases; or the conflict between free speech and the fair
value of equal political liberties in restrictions on campaign finance
contributions). Often in such conflicts we have to weigh competing
considerations and come to a decision about where the greater balance
of reasons lies, much like intuitionist views. (See Hart, 1973). Rawls
in 'Basic Liberties and their Priority,' 1980, PL ch.VIII,
addresses this problem to some degree with the idea of the
significance of a basic liberty to the development and full and
informed exercise of the moral powers.) The lack of a priority or
algorithmic ordering principle does not mean the balance of reasons in
such conflicts regarding basic liberties is indeterminate but rather
that reasonable individuals will often disagree, and that final
decisions practically will have to be made through the appropriate
democratic, judicial, or other procedures (which of course can be
mistaken). But for Rawls a moral conception's capacity to
clearly order conflicting claims is not dispositive, but one among
several formal and substantive moral conditions that a conception of
justice should satisfy (ultimately in reflective equilibrium).



The *publicity* *condition* says that the parties are to
assume that the principles of justice they choose will be *publicly
known* to members of society and recognized by them as the bases
for their social cooperation. This implies that people will not be
uninformed, manipulated, or otherwise have false beliefs about the
bases of their social and political relations. There are to be no
"noble lies", false ideologies, or "fake news"
obscuring a society's principles of justice and the moral bases
for its basic social institutions. The publicity of principles of
justice is ultimately for Rawls a condition of respect for persons as
free and equal moral persons. Rawls believes that individuals in a
democratic society should know the bases of their social and political
relations and not have to be deceived about them in order to cooperate
and live together peacably and on fair terms. Publicity plays an
important role in Rawls's arguments against utilitarianism and
other consequentialist conceptions. The idea of publicity is further
developed in *Political Liberalism* through the ideas of public
justification and the role of public reason in political
deliberation.



Related to publicity is that principles should be *universal in
application*. This implies not simply that "they hold for
everyone in virtue of their being moral persons" (TJ 132/114
rev.). It also means that everyone can understand the principles of
justice and use them in their deliberations about justice and its
requirements. Universality in application then imposes a limit on how
complex principles of justice can be--they must be understandable
to common moral sense, and not so complicated that only experts can
apply them in deliberations. For among other things, these principles
are to guide democratic citizens in their judgments and shared
deliberations about just laws and policies.



Both publicity and universality in application (as Rawls defines it)
are controversial conditions. Utilitarians, for example, have argued
that the truth about morality and justice is so complicated and
controversial that it might be necessary to keep fundamental moral
principles (the principle of utility) hidden from most
individuals' awareness. For morality and justice often require
much that is contrary to peoples' beliefs and personal
interests. Also sometimes it's just too complicated for people
to understand the reasons for their moral duties. So long as they
understand their individual duties, it may be better if they do not
understand the principles and reasons behind them. So Sidgwick argues
that the aims of utilitarianism might better be achieved if it remains
an "esoteric morality," knowledge of which is confined to
"an enlightened few" (Sidgwick 1907 [1981], 489-90).
The reason Rawls sees publicity and universality as necessary relates
to the conception of the person implicit in justice as fairness. If we
conceive of persons as free and equal moral persons capable of
political and moral autonomy, then they should not be under any
illusions about the bases of their social relations, but should be
able to understand, accept, and apply these principles in their
deliberations about justice. These are important conditions Rawls
contends for the freedom, equality, and autonomy (moral and political)
of democratic citizens.



Finally, the *generality* condition is straightforward in that
it requires that principles of justice not contain any proper names or
rigged definite descriptions, which Rawls says rules out free-rider
and other forms of egoism together with the ordering condition. The
*finality* condition says that moral principles of justice
provide conclusive reasons for action, providing "the final
court of appeal in practical reasoning." They override demands
of law and custom, social rules, and reasons of personal prudence and
self-interest. (TJ 135-36/116-17). Finality is one of
several Kantian conditions Rawls imposes that have been questioned by
critics on grounds that it underestimates inevitable and sometimes
irresolvable conflicts of moral reasons with other values. For
example, should reasons of justice *always* be given priority
over special obligations owed to specific persons or associations?
Should moral reasons always be given priority over reasons of love,
prudence, or even self-interest? (See Williams 1981, chs.1, 5; Wolf,
2014, chs.2, 3, 9)


### 5.3 The Stability Requirement



Rawls says, "An important feature of a conception of justice is
that it should generate its own support. Its principles should be such
that when they are embodied in the basic structure of society, people
tend to acquire the corresponding sense of justice and develop a
desire to act in accordance with its principles. In this case a
conception of justice is stable" (TJ, 138/119). The parties in
the original position are to take into account the "relative
stability" of a conception of justice and the society that
institutes it. The stability of a just society does not mean that it
must be unchanging. It means rather that in the face of inevitable
change members of a society should be able to maintain their
allegiance to principles of justice and the institutions they support.
When disruptions to society do occur (via economic crises, war,
natural catastrophes, etc.) and/or society departs from justice,
citizens' commitments to principles of justice are sufficiently
robust that just institutions are eventually restored. The role of the
stability requirement for Rawls is twofold: first, to test whether
potential principles of justice are compatible with human natural
propensities, or our moral psychology and general facts about social
and economic institutions; and second, to determine whether acting on
and from principles of justice are conducive and even essential to
realizing the human good.



To be stable principles of justice should be realizable in a
*feasible and enduring social world*, the ideal of which Rawls
calls a "well-ordered society." (See below, SS6.3.)
They need to be practicably possible given the limitations of the
human condition. Moreover, this feasible social world must be one that
can endure over time, not by just any means, but by gaining the
willing support of people who live in it. People should knowingly want
to uphold and maintain society's just institutions not just
because they benefit from them, but on grounds of their *sense of
justice*. In choosing principles of justice, the parties in the
original position must take into account their "relative
stability" (TJ SS76). They have to consider the degree to
which a conception (in comparison with other conceptions) describes an
achievable and sustainable system of social cooperation, and whether
the institutions and demands of such a society will attract
people's willing compliance and generally engage their sense of
justice.



For example, suppose principles of justice were to impose a duty to
practice impartial benevolence towards all people, and thus a duty to
show no greater concern for the welfare of ourselves and loved ones
than we do towards billions of others. This principle demands too much
of human nature and would not be sustainable or even
feasible--people simply would reject its onerous demands. But
Rawls's stability requirement implies more than just
'ought implies can.' It says that principles of justice
and the scheme of social cooperation they describe should evince
"stability for the right reasons" ((as Rawls later says in
PL xli, 143f., 459f.,). Recall here the higher-order interests of the
parties in development and exercise of their capacities for justice. A
just society should be able to endure not simply as a *modus
vivendi*, or compromise among conflicting interests; nor simply
endure by promoting the majority of peoples' interests and/or
coercive enforcement of its provisions. Stability "for the right
reasons," as conceived in *Theory*, requires that people
support society for *moral reasons of justice*. Society's
basic principles must respond to reasonable persons' capacities
for justice and engage their sense of justice. Rawls regards our moral
capacities for justice as an integral part of our nature as sociable
beings. He believes that one role of a conception of justice is to
accommodate human capacities for sociability, the capacities for
justice that enable us to be cooperative social beings. So not only
should a conception of justice advance human interests, but it should
also answer to our moral psychology by enabling us to knowingly and
willingly exercise our moral capacities and sensibilities, which are
among the moral powers to be reasonable. This is one way that
Rawls's conception of justice is "ideal-based" (CP
400-401 n.): it is based in an ideal of human beings as free and
equal moral persons and an ideal of their social relations as
generally acceptable and justifiable to all reasonable persons
whatever their circumstances (the ideal of a well-ordered
society).



This relates to the second ground for the stability condition, which
can only be mentioned here: it is that the correct principles of
justice should be compatible with, and even integral to realizing the
*human good*. It speaks strongly in favor of a conception of
justice that it is compatible with and promotes the human good. First,
if a conception of justice requires of many reasonable people that
they change their conscientious philosophical or religious convictions
for the sake of satisfying a majority's beliefs, or abandon
their pursuit of the important interests that constitute their plan of
life, this conception could not gain their willing support and would
not be stable over sustained periods of time. Moreover, Rawls contends
that a conception of justice should enable citizens to fully exercise
and adequately develop their moral powers, including their capacities
for justice. It must then engage their sense of justice in such a way
that they do not regard justice as a burden but should come to
experience that acting on and from principles of justice is worth
doing for its own sake. For Rawls, it speaks strongly in favor of a
conception of justice that acting for the sake of its principles is
experienced as an activity that is good in itself (as Rawls contends
in *Theory of Justice*); or at least that willing compliance
with requirements of justice is an essential part of the reasonable
comprehensive philosophical, religious, or moral doctrines that
reasonable persons affirm (as Rawls contends later in *Political
Liberalism*). For then justice and the full and informed exercise
of the sense of justice are for reasonable and rational persons
essential goods, preconditions for their living a good life, as that
is defined by their rational conception of the good.


## 6. The Arguments for the Principles of Justice from the Original Position



The original position is not a bargaining situation where the parties
make proposals and counterproposals and negotiate over different
principles of justice. Nor is it a wide ranging discussion where the
parties debate, deliberate, and design their own conception of justice
(unlike, for example, Habermas's discourse ethics; see Habermas,
1995). Instead, the parties' deliberations are much more
constrained and regulated. They are presented with a list of
conceptions of justice taken from the tradition of western political
philosophy. These include different versions of utilitarianism,
perfectionism, and intuitionism (or pluralist views), rational egoism,
justice as fairness, and a group of "mixed conceptions"
that combine elements of these. (For Rawls's initial list see TJ
124/107) Rawls later says libertarian entitlement principles should
also be added to the list, and contends the principles of justice are
still preferable. (JF 83). (Nozick agrees and says the OP is incapable
of yielding historical entitlement principles, but only patterned
end-state principles instead. Nozick 1974, 198-204. Rawls
replies that the difference principle does not conform to any
observable pattern but grounds fair distributions in a fair social
process that must actually be carried out. PL, 282-83)



The parties' deliberations are confined to discussing and
agreeing upon the conception that each finds most rational, given
their specified interests. In a series of pairwise comparisons, they
consider all the conceptions of justice made available to them and
ultimately agree unanimously to accept the conception that survives
this winnowing process. In this regard, the original position is best
seen as a kind of selection process wherein the parties'
deliberations are constrained by the background conditions imposed by
the original position as well as the list of conceptions of justice
provided to them. They are assigned the task of agreeing on principles
for designing the basic structure of a self-contained society under
the circumstances of justice.



In making their decision, the parties are motivated only by their own
rational interests. They do not take moral considerations of justice
into account except in so far as these considerations bear on their
achieving their interests within society. Their interests again are
defined in terms of their each acquiring an adequate share of primary
social goods (rights and liberties, powers and opportunities, income
and wealth, etc.) and achieving the background social conditions
enabling them to effectively pursue their conception of the good and
realize their higher-order interests in developing and exercising
their moral powers. Since the parties are ignorant of their particular
conceptions of the good and of all other particular facts about their
society, they are not in a position to engage in bargaining. In effect
they all have the same general information and are motivated by the
same interests.



Rawls makes four arguments in *Theory*, Part I for the
principles of justice. The main argument for the difference principle
is made later in TJ SS49, and is amended and clarified in
*Justice as Fairness: A Restatement*. The common theme
throughout the original position arguments is that it is more rational
for the parties to choose the principles of justice over any other
alternative. Rawls devotes most of his attention to the comparison of
justice as fairness with classical and average utilitarianism, with
briefer discussions of perfectionism (TJ, SS50) and intuitionism
(TJ 278-81) Here I'll focus discussion primarily on
Rawls's comparison between justice as fairness and
utilitarianism.


### 6.1 The Principles of Justice



Before turning to Rawls's arguments from the original position,
it is helpful to have available the principles of justice and other
principles that constitute Justice as Fairness.



*First Principle*: "Each person has an equal right to the
most extensive total system of equal basic liberties compatible with a
similar system of liberty for all." (TJ 266)



The first principle was revised in 1982 to say "Each person has
an equal right to a fully adequate scheme of equal basic liberties
..." (PL, 291) replacing "... the most extensive
scheme of equal basic liberties.") Notably, Rawls also
introduces in *Political Liberalism*, almost in passing, *a
principle of basic needs* that precedes the first principle and
requires that citizens' basic needs be met at least to the
extent that they can understand and fruitfully exercise their basic
rights and liberties. (PL 7; JF 79n.) This social minimum is also said
in *Political Liberalism* to be a "constitutional
essential" for any reasonable liberal conception of justice. (PL
166, 228ff.; JF 47, n.7)



The basic rights and liberties protected by the first principle are
specified by a list (see TJ 53f., PL 291): liberty of conscience and
freedom of association, (TJ SSSS33-4); freedom of
thought and freedom of speech and expression (PL, pp.340-363);
the integrity and freedom of the person and the right to hold personal
property; equal rights of political participation and their fair value
(TJ SSSS36-37); and the rights and liberties protected
by the rule of law (due process, freedom from arbitrary arrest, etc.
TJ SS38). (Rawls says the right to ownership of means of
production and laissez faire freedom of contract are not included
among the basic liberties. TJ, 54 rev. Also freedom of movement and
free choice of occupation are said to be primary goods protected by
fair equality of opportunity principle. PL 76, JF 58f.))



*Second Principle*: "Social and economic inequalities are
to satisfy two conditions. First they must attach to offices and
positions open to all under conditions of fair equality of
opportunity; and second they must be to the greatest advantage of the
least advantaged members of society [the difference principle]"
consistent with the just savings principle. (PL 281, JF 42-43,
TJ 301/266 rev.)



*Just Savings Principle*: Each generation should save for
future generations at a savings rate that they could rationally expect
past generations to have saved for them. (TJ SS44; JF
159-160)



*Principles for individuals*, include (a) *the natural
duties* to uphold justice, mutual respect, mutual aid, and not to
injure or harm the innocent (TJ SSSS19, 51); and (b) *the
principle of fairness*, to do one's fair share in just or
nearly just practices and institutions from which one accepts their
benefits, (which grounds the principle of fidelity, to keep
one's promises and commitments. (TJ SSSS18, 52).



*The Priority Principles*: the principles of justice are ranked
in lexical order. (a) The priority of liberty requires that basic
liberties can only be restricted to strengthen the system of liberties
shared by all. (b) Fair equality of opportunity is lexically prior to
the difference principle. (c) The second principle is prior to the
principle of efficiency and maximizing the sum of advantages. (TJ
302/266 rev.)



*The General Conception of Justice:* "All social
goods--liberty and opportunity, income and wealth, and the bases
of self-respect, are to be distributed equally unless an unequal
distribution of any or all of these goods is to the advantage of the
least favored." TJ 1971, 302. Note: The general conception is
the difference principle generalized to all primary goods (TJ 1971,
83); it applies in non-ideal conditions where the priority of liberty
and opportunity is not sustainable.


### 6.2 The Argument from the Maximin Criterion (TJ, SSSS26-28)



Describing the parties' choice as a rational choice subject to
the reasonable constraints imposed by the original position allows
Rawls to invoke the theory of rational choice and decision under
conditions of uncertainty. In rational choice theory there are a
number of potential "strategies" or rules of choice that
are more or less reliably used depending on the circumstances. One
rule of choice--called "maximin"--directs that
we play it as safe as possible by choosing the alternative whose worst
outcome leaves us better off than the worst outcome of all other
alternatives. The aim is to "maximize the minimum" regret
or loss to one's position (measured in terms of welfare or, for
Rawls, one's share of primary social goods). To follow this
strategy, Rawls says you should choose as if your enemy were to assign
your social position in whatever kind of society you end up in. By
contrast another strategy leads us to focus on the most advantaged
position and says we should "maximize the maximum"
potential gain--"maximax"--and choose the
alternative whose best outcome leaves us better off than all other
alternatives. Which, if either, of these strategies is more sensible
to use depends on the circumstances and many other factors.



A third strategy advocated by orthodox Bayesian decision theory, says
we should always choose to *directly maximize expected
utility*. To do so under conditions of uncertainty of outcomes,
the degree of uncertainty should be factored into one's utility
function, with probability estimates assigned to alternatives based on
the limited knowledge that one has. Given these subjective estimates
of probability incorporated into one's utility function, one can
always choose the alternative that maximizes *expected*
utility. Since it simplifies matters to apply the same rule of choice
to all decisions this is a highly attractive idea, so long as one can
accept that it is normally safe to assume that that the maximization
of *expected* utility leads over time to maximizing
*actual* utility.



What about those extremely rare instances where there is absolutely
*no* basis upon which to make probability estimates? Suppose
you don't even have a hunch regarding the greater likelihood of
one alternative over another. According to orthodox Bayesian decision
theory, the "principle of insufficient reason" should then
be observed; it says that when there is no reason to assign a greater
likelihood to one alternative rather than another, then an *equal
probability* is to be assigned to each potential outcome. This
makes sense on the assumption that if you have no more premonition of
the likelihood of one option rather than another, they are *for all
you know equally likely* to occur. By observing this rule of
choice consistently over time, a rational chooser presumably should
maximize expected individual utility, and hopefully actual utility as
well.



What now is the appropriate decision rule to be used to choose
principles of justice under conditions of complete uncertainty of
probabilities in Rawls's original position? Rawls argues that,
given the enormous gravity of choice in the original position, plus
the fact that the choice is not repeatable (there's no
opportunity to renegotiate or revise one's decision), it is
rational for the parties to follow the maximin strategy when choosing
between the principles of justice and principles of average or
aggregate utility (or any other principles that do not guarantee basic
rights, liberties, opportunities, and a social minimum). Not
surprisingly, following the maximin rule of choice results in choice
of the principles of justice over the principles of utility (average
or aggregate); for unlike utilitarianism, justice as fairness
guarantees equal basic liberties, fair equal opportunities, and an
adequate social minimum for all citizens.



Why does Rawls think maximin is the rational choice rule? Recall what
is at stake in choice from the original position. The decision is not
an ordinary choice. It is rather a unique and irrevocable choice where
the parties decide the basic structure of their society, or the kind
of social world they will live in and the background conditions
against which they will develop and pursue their aims. It is a kind of
superchoice--an inimitable choice of the background conditions
for all one's future choices. Rawls argues that because of the
unique importance of the choice in the original
position--including the gravity of the choice, the fact that it
is not renegotiable or repeatable, and the fact that it determines all
one's future prospects--it is rational to follow the
maximin rule and choose the principles of justice. For should even the
worst transpire, the principles of justice guarantee an adequate share
of primary goods enabling one to maintain one's conscientious
convictions and sincerest affections and pursue a wide range of
permissible ends by protecting equal basic liberties and fair equal
opportunities and guaranteeing an adequate social minimum of income
and wealth. The principles of utility, by contrast, provide no
guarantee of any of these benefits.



Rawls says that in general there are three conditions that must be met
in order to make it rational to follow the maximin rule (TJ
154-55/134 rev.). First, there should be no basis or at most a
very insecure basis upon which to make estimates of probabilities.
Second, the choice singled out by observing the maximin rule is an
acceptable alternative we can live with, so that one cares relatively
little by comparison for what is to be gained above the minimum
conditions secured by the maximin choice. When this condition is
satisfied, then no matter what position one eventually ends up in, it
is at least acceptable. The third condition for applying the maximin
rule is that all the other alternatives have worse outcomes that we
could not accept and live with. Of these three conditions Rawls later
says that the first plays a minor role, and that it is the second and
third conditions that are crucial to the maximin argument for justice
as fairness (JF 99). This seems to suggest that, even if the veil of
ignorance were not as thick and parties did have some degree of
knowledge of the likelihood of ending up in one social position rather
than another, still it would be more rational to choose the principles
of justice over the principle of utility.



Rawls contends all three conditions for the maximin strategy are
satisfied in the original position when choice is made between the
principles of justice and the principle of utility (average and
aggregate). Because all one's values, commitments, and future
prospects are at stake in the original position, and there is no hope
of renegotiating the outcome, a rational person would agree to the
principles of justice instead of the principle of utility. For the
principles of justice imply that no matter what position you occupy in
society, you will have the rights and resources needed to maintain
your valued commitments and purposes, to effectively exercise your
capacities for rational and moral deliberation and action, and to
maintain your sense of self-respect as an equal citizen. With the
principle of utility there is no such guarantee; everything is
"up for grabs" (so to speak) and subject to loss if
required by the greater sum of utilities. Conditions (2) and (3) for
applying maximin are then satisfied in the comparison of justice as
fairness with the principle of (average or aggregate) utility.



It is often claimed that Rawls's parties are
"risk-averse;" otherwise they would never follow the
maximin rule but would take a chance on riskier but more rewarding
outcomes provided by the principle of utility. Thus, John Harsanyi
contends that it is more rational under conditions of complete
uncertainty *always* to choose according to the principle of
insufficient reason and assume an equal probability of occupying any
position in society. When the equiprobability assumption is made, the
parties in the original position would choose the principle of average
utility instead of the principles of justice (Harsanyi 1975).



Rawls denies that the parties have a psychological disposition to
risk-aversion. They have no knowledge of their attitudes towards risk.
He argues however that it is rational to choose *as if* one
were risk averse under the highly exceptional circumstances of the
original position. His point is that, while there is nothing rational
about a fixed disposition to risk aversion, it is nonetheless rational
in some circumstances to choose conservatively to protect certain
fundamental interests against loss or compromise. It does not make one
a risk averse person, but instead it is normally rational to purchase
auto liability, health, and home insurance against accident or
calamity (assuming it is affordable). The original position is such a
situation writ large. Even if one knew in the original position that
the citizen one represents enjoys gambling and taking great risks,
this would still not be a reason to gamble with their rights,
liberties and starting position in society. For if the high risktaker
were born into a traditional, repressive, or fundamentalist society,
they might never have an opportunity for gambling and taking other
risks they normally enjoy. It is rational then even for high
risktakers to choose conservatively in the original position and
guarantee their future opportunities to gamble or otherwise take
risks.



Harsanyi and other orthodox Bayesians contend that maximin is an
irrational decision rule, and they provide ample examples. To take
Rawls' own example, in a lottery where the loss and gain
alternatives are either (0, n) or (1/n, 1) for all natural numbers n,
maximin says choose the latter alternative (1/n, 1). This is clearly
irrational for almost any number n except very small numbers. (TJ 136
rev.). But such examples do not suffice here; simply because maximin
is under most circumstances irrational does not mean that it is
*never* rational. For example, suppose n>1 and you must have
1/n to save you own life. Given the gravity of the circumstances, it
would be rational to choose conservatively since you are guaranteed
1/n according to the maximin strategy, and there is no guarantee you
will survive if you choose according to the principle of insufficient
reason.



No doubt maximin *is* an irrational strategy under most
circumstances of choice uncertainty, particularly under circumstances
where we will have future opportunities to recoup our losses and
choose again. But these are not the circumstances of the original
position. Once the principles of justice are decided, they apply in
perpetuity, and there is no opportunity to renegotiate or escape the
situation. One who relies on the equiprobability assumption in
choosing principles of justice in the original position is being
foolishly reckless given the gravity of choice at stake. It is not
being risk-averse, but rather entirely rational to refuse to gamble
with one's basic liberties, fair equal opportunities and
adequate resources needed to pursue one's most cherished ends
and commitments, simply for the unknown chance of gaining the
marginally greater social powers, income and wealth that might be
available to some in a society governed entirely by the principle of
utility.



Rawls exhibits the force of the maximin argument in discussing liberty
of conscience. He says (TJ, sect. 33) that a person who is willing to
jeopardize their right to hold and practice their conscientious
religious, philosophical and moral convictions, all for the sake of
gaining uncertain added benefits via the principle of utility, does
not know what it means to have conscientious beliefs, or at least does
not take such beliefs seriously (TJ 207-08/181-82 rev.). A
rational person with convictions about what gives life meaning is not
willing to negotiate with and gamble away the right to hold and
express those convictions and the freedom to act on them. After all
what could be the basis for negotiation, for what could matter more
than the objects of one's most sincere convictions and
commitments? Some people (e.g. some nihilists) may not have
*any* conscientious convictions (except the belief that nothing
is worthwhile) and are simply willing to act on impulse or on whatever
thoughts and desires they happen to have at the moment. But behind the
veil of ignorance no one knows whether they are such a person, and it
would be foolish to make this assumption. Knowing general facts about
human propensities and sociability, the parties must take into account
that people normally have conscientious convictions and values and
commitments they are unwilling to compromise. (Besides, even the
nihilist should want to protect the freedom to be a nihilist, to avoid
ending up in an intolerant religious society.) Thus it remains
irrational to jeopardize basic liberties by choosing the principle of
utility instead of the principles of justice.



None of this is to say that maximin is normally a rational choice
strategy. Rawls himself says it "is not, in general, a suitable
guide for choices under uncertainty" (TJ 153). It is not even a
rational strategy in the original position when the alternatives for
choice guarantee basic liberties, equal opportunities, and a social
minimum guaranteed by the principle of average utility - see the
discussion in the supplementary section:



> 
> The Argument for the Difference Principle
> 



in the supplementary document
 The Argument for the Difference Principle and the Four Stage Sequence.



Rawls relies upon the maximin argument mainly to argue for the first
principle of justice and fair equality of opportunity. Other arguments
are needed to support his claim that justice requires the social
minimum be determined by the difference principle.


### 6.3 The Strains of Commitment



There are three additional arguments Rawls makes to support justice as
fairness (all in TJ, sect. 29). Each of these depends upon the concept
of a "well-ordered society." The parties in the original
position are to choose principles that are to govern a well-ordered
society where everyone agrees, complies with, and wants to comply with
its principles of justice. The ideal of a *well-ordered
society* is Rawls's development of social contract doctrine.
It is a society in which (1) everyone knows and willingly accepts and
affirms the same public principles of justice and everyone knows this;
(2) these principles are successfully realized in basic social
institutions, including laws and conventions, and are generally
complied with by citizens; and (3) reasonable persons are morally
motivated to comply by their sense of justice - they want to do
what justice requires of them (TJ 4-5, SS69). There are then
two sides to Rawls's social contract. The parties in the
original position have the task of agreeing to principles that all can
rationally accept behind the veil of ignorance under the conditions of
the original position. But their rational choice is partially
determined by the principles that free and equal moral persons in a
well ordered society who are motivated by their sense of justice
reasonably can accept, agree to.and comply with, as the basic
principles governing their social and political relations.



The parties are to assess principles according to the relative
stability of the well ordered societies into which they are
incorporated. Thus a well-ordered society of justice as fairness is to
be compared with a well-ordered society whose basic structure is
organized according to the average utility principle, aggregate
utility, perfectionism, intuitionism, libertarianism, and so on. They
are to consider which of these societies' basic struture is
relatively more stable and likely to endure over time from one
generation to the next, given natural and socially influenced
psychological propensities and conditions of social cooperation as
they interact with alternative principles of justice.



Now to return to Rawls's arguments for his principles of
justice. The first of Rawls's three arguments highlights the
idea that choice in the original position is an *agreement*,
and involves certain "*strains of commitment.*" It
is assumed by all the parties that all will comply with the principles
they agree to once the veil is lifted and they are members of a
well-ordered society (TJ 176f./153f. and CP 250ff). Knowing that they
will be held to their commitment and expected to comply with
principles for a well-ordered society, the parties must choose
principles that they sincerely believe they will be able to accept,
endorse and willingly observe under conditions where these principles
are generally accepted and enforced. For reasons to be discussed
shortly, Rawls says this condition favors agreement on the principles
of justice over utilitarianism and other alternatives.



But first, consider the frequent objection that there is no genuine
agreement in the original position, for the thick veil of ignorance
deprives the parties of all bases for bargaining (cf. TJ,
139-40/120-21 rev.). In the absence of bargaining, it is
said, there can be no contract. For contracts must involve a *quid
pro quo*--something given for something received (called
'consideration' at common law). The parties in the OP
cannot bargain without knowing what they have to offer or to gain in
exchange. So (the objection continues) Rawls's original position
does not involve a real social contract, unlike those that transpire,
say, in a state of nature. Rather, since the parties are all
"described in the same way," there is no need for multiple
parties but simply the rational choice of one person in the original
position (see Hampton, 1980, 334; see also Gauthier, 1974 and 1985,
203).



In response, not all contracts involve bargaining or are of the nature
of economic transactions. Some involve a mutual pledge and commitment
to shared purposes and principles. Marriage contracts, or agreements
among friends or the members of a religious, benevolent, or political
association are often of this nature. For example, the Mayflower
Compact was a "covenant" to "combine ourselves
together into a civil body politic" charged with making and
administering "just and equal laws...for the general
good." Likewise the U.S. Constitution represents itself as a
commitment wherein "We The People ... ordain and establish
this Constitution" in order "to establish justice,"
"promote the general welfare," "secure the blessings
of liberty," and so on. The agreement in Rawls's original
position is more of this nature. Even though ignorant of particular
facts about themselves, the parties in fact do give something in
exchange for something received: they all exchange their mutual
commitment to accept and abide by the principles of justice and to
uphold just institutions once they enter their well-ordered society.
Each agrees only on condition others do too, and all tie themselves
into social and political relations in perpetuity. Their agreement is
final, and they will not permit its renegotiation should circumstances
turn out to be different than some had hoped for. Their mutual
commitment to justice is reflected by the fact that once these
principles become embodied in institutions there are no legitimate
means that permit anyone to depart from the terms of their agreement.
As a result, the parties have to take seriously the moral and legal
obligations and potential social sanctions they will incur as a result
of their agreement, for there is no going back to the initial
situation. So if they do not sincerely believe that they can accept
the requirements of a conception of justice and voluntarily conform
their actions and life plans accordingly, then these are strong
reasons to avoid choosing those principles. It would not be rational
for the parties to take risks, falsely assuming that if they end up
badly, they can violate at will the terms of agreement or later regain
their initial situation and renegotiate terms of cooperation (see
Freeman, 1990; Freeman, 2007b, 180-182).



Rawls gives special poignancy to this mutual commitment of the parties
by making it a condition that the parties cannot choose and agree to
principles in bad faith; they have to be able, not simply to live with
and grudgingly accept, but instead to willingly endorse the principles
of justice as members of society. Essential to Rawls's argument
for stability is the assumption of everyone's *willing
compliance* with requirements of justice. This is a feature of a
well-ordered society. The parties are assumed to have a sense of
justice; indeed the development and exercise of it is one of their
fundamental interests. Hence they must choose principles that that
they can not only accept and live with, but which are responsive to
their sense of justice and they can unreservedly endorse. Given these
conditions on choice, the parties cannot take risks with principles
they know they will have difficulty complying with voluntarily. They
would be making an agreement in bad faith, and this is ruled out by
the conditions of the original position.



Rawls contends that these "strains of commitment" created
by the parties' agreement strongly favor the principles of
justice over the principles of utility and other teleological (and
most consequentialist) views. For everyone's freedom, basic
rights and liberties, and basic needs are met by the principles of
justice because of their egalitarian nature. Given the lack of these
guarantees under the principle of utility, it is much more difficult
for those who end up worse off in a utilitarian society to willingly
accept their situation and commit themselves to the utility principle.
It is a rare person indeed who can freely and without resentment
sacrifice their life prospects so that those who are better off can
have even greater comforts, privileges, and powers. This is too much
to demand of our capacities for human benevolence. It requires a kind
of commitment that people cannot make in good faith, for who could
willingly support laws that are so detrimental to oneself and the
people one cares about most that they must sacrifice their fundamental
interests for the sake of those more advantaged? Besides, why should
we encourage such subservient dispositions and the accompanying lack
of self-respect? The principles of justice, by contrast, conform
better with everyone's interests, their desire for self-respect
and their natural moral capacities to reciprocally recognize and
respect others' legitimate interests while freely promoting
their own good. The strains of commitment incurred by agreement in the
original position provide strong reasons for the parties to choose the
principles of justice and reject the risks involved in choosing the
principles of average or aggregate utility.


### 6.4 Stability, Publicity, and Self-Respect



Rawls's strains-of-commitment argument explicitly relies upon a
rarely noted feature of his argument: as mentioned earlier, there are
in effect *two social contracts*. First, hypothetical agents
situated equally in the original position unanimously agree to
principles of justice. This agreement has attracted the most attention
from Rawls's critics. But the parties' hypothetical
agreement in the original position is patterned on the general
acceptability of a conception of justice by free and equal persons in
a well-ordered society. Rawls says, "The reason for invoking the
concept of a contract in the original position lies in its
correspondence with the features of a well-ordered society [which]
require...that everyone accepts, and knows that the others
accept, the same principles of justice" (CP 250). In order for
the hypothetical parties in the original position to agree on
principles of justice, there must be a high likelihood that real
persons, given human nature and general facts about social and
economic cooperation, can also agree and act on the same principles,
and that a society structured by these principles is feasible and can
endure. This is the *stability* requirement referred to
earlier. One conception of justice is relatively more stable than
another the more willing people are to observe its requirements under
conditions of a well-ordered society. Assuming that each conception of
justice has a corresponding society that is as well-ordered as can be
according to its terms, the stability question raised in
*Theory* is: Which conception of justice is more likely to
engage the moral sensibilities and sense of justice of free and equal
persons as well as affirm their good? This requires an inquiry into
moral psychology and the human good, which takes up most of Part III
of *A Theory of Justice*.



Rawls makes two arguments in *Theory* from the original
position that invoke the stability requirement, the arguments (1) from
publicity and (2) from self-respect (see TJ, SS29)



(1) The argument from publicity: Rawls contends that utilitarianism,
perfectionism, and other "teleological" conceptions are
unlikely to be freely acceptable to many citizens when made fully
public under the conditions of a well-ordered society. Recall the
*publicity condition* discussed earlier: A feature of a
well-ordered society is that its regulative principles of justice are
publicly known and appealed to as a basis for deciding laws and
justifying basic institutions. Because all reasonable members of
society accept the public conception of justice, there is no need for
the illusions and delusions of ideology for a society to function
properly and citizens to accept its laws and institutions willingly.
In this sense a well-ordered society lacks false consciousness about
the bases of social and political relations. (PL 68-69n.) A
conception of justice that satisfies the publicity condition but that
cannot maintain the stability of a well-ordered society is to be
rejected by the parties in the original position. Rawls contends that
under the publicity condition justice as fairness generally engages
citizens' sense of justice and remains more stable than
utilitarianism (TJ 177f./154f.rev.) For public knowledge that reasons
of maximum average (or aggregate) utility determine the distribution
of benefits and burdens would lead those worse-off to object to and
resent their situation, and reject the principle of utility as the
basic principle governing social institutions. After all, the
well-being and interests of the least advantaged, perhaps even their
basic liberties, are being sacrificed for the greater happiness of
those who are already more fortunate and have a greater share of
primary social goods. It is too much to expect of human nature that
people should freely acquiesce in and embrace such publicly known
terms of cooperation. By contrast, the principles of justice are
designed to advance reciprocally everyone's position; those who
are better off do not achieve their gains at the expense of the less
advantaged. "Since everyone's good is affirmed, all
acquire inclinations to uphold the scheme" (TJ, 177/155). It is
a feature of our moral psychology, Rawls contends, that we normally
come to form attachments to people and institutions that are concerned
with our good; moreover we tend to resent those persons and
institutions that take unfair advantage of us and act contrary to our
good. Rawls argues at length in chapter 8 of *Theory*,
SSSS70-75, that justice as fairness accords better than
alternative principles with the reciprocity principles of moral
psychology that are characteristic of human beings' moral
development.



In *Political Liberalism*, Rawls expands the publicity
condition to include three levels: First, the principles of justice
governing a well-ordered society are publicly known and appealed to in
political debate and deliberation; second, so too are the general
beliefs in light of which society's conception of justice is
generally accepted--including beliefs about human nature and the
way political and social institutions generally work--and
citizens generally agree on these beliefs that support society's
onception of justice. Finally the full justification of the public
conception of justice is also publicly known (or at least publicly
available to any who are interested) and is reflected in
society's system of law, judicial decisions and other political
institutions, as well as its system of education.



(2) The argument from *the social bases of self-respect*: The
publicity condition is also crucial to Rawls's fourth argument
for the principles of justice, from the social bases of self-respect
(TJ, 178-82/155-59 rev.). These principles, when publicly
known, give greater support to citizens' *sense of
self-respect* than do utilitarian and perfectionist principles.
Rawls says self-respect is "perhaps the most important primary
good," (TJ, 440/386 rev.) since few things seem worth doing if a
person has little sense of their own worth or no confidence in their
abilities to execute a worthwhile life plan or fulfill the duties and
expectations in their role as citizens. The parties in the original
position will then aim to choose principles that best secure their
sense of self-respect. Now being regarded by others as a free and
independent person of equal status with others is crucial to the
self-respect of persons who regard themselves as free and equal
members of a democratic society. Justice as fairness, by affording and
protecting the priority of equal basic liberties and fair equal
opportunities for all, secures the status of each as free and equal
citizens. For example, because of equal political liberties, there are
no "passive citizens" who must depend on others to
politically protect their rights and interests; and with fair equal
opportunities no one has grounds to experience the resentment that
inevitably arises in societies where social positions are effectively
closed off to those less advantaged or less powerful. Moreover, the
second principle secures adequate social powers and economic resources
for all so that they find the effective exercise of their equal basic
liberties to be worthwhile. The second principle has the effect of
making citizens socially and economically independent, so that no one
need be subservient to the will of another. Citizens then can regard
and respect one another as equals, and not as masters or subordinates.
("Non-domination," an idea central to contemporary
Republicanism, is then essential to citizens' sense of
self-respect in Rawls's sense. See Pettit 1997.) Equal basic
liberties, fair equal opportunities, and political and economic
independence are primary among the social bases of self-respect in a
democratic society. The parties in the original position should then
choose the principles of justice over utilitarianism and other
teleological views both to secure their sense of self-respect, and to
procure the same for others, thereby guaranteeing greater overall
stability.

 In connection with Rawls's argument for the
greater stability of principles of justice on grounds of their
publicity and the bases of self-respect, Rawls provides a Kantian
interpretation of difference principle. He says: "[T]he
difference principle interprets the distinction between treating men
as means only and treating them as ends in themselves. To regard
persons as ends in themselves in the basic design of society is to
agree to forgo those gains that do not contribute to everyone's
expectations. By contrast to regard persons as means is to be prepared
to impose on those already less favored still lower prospects of life
for the sake of the higher expectations of others" (TJ 157
rev.). Rawls says the principle of utility does just this; it treats
the less fortunate as means since it requires them to accept even
lower life prospects for the sake of others who are more fortunate and
already better off. This exhibits a lack of respect for the less
advantaged and in turn has the effect of undermining their sense of
self respect. (TJ 158 rev.) The difference principle, by contrast,
does not treat people as means or undermine their sense of self
respect, and this adds to the reasons the parties have for choosing
the principles of justice instead of the principle of utility.


Rawls substantially relies on the publicity condition to argue against
utilitarianism and perfectionism. He says publicity "arises
naturally from a contractarian standpoint" (TJ, 133/115 rev.).
In *Theory* he puts great weight on publicity ultimately
because he thinks that giving people knowledge of the moral bases of
coercive laws and the principles governing society is a condition of
fully acknowledging and respecting them as free and responsible
rational moral agents. With publicity of principles of justice, people
have knowledge of the real reasons for their social and political
relations and the formative influences of the basic structure on their
characters, plans and prospects. In a well-ordered society with a
public conception of justice, there is no need for an "esoteric
morality" that must be confined "to an enlightened
few" (as Sidgwick says of utilitarianism, Sidgwick 1907 [1981],
490). Moreover, public principles of justice can serve agents in their
practical reasoning and provide democratic citizens a common basis for
political argument and justification. These considerations underlie
Rawls's later contention that having knowledge of the principles
that determine the bases of social relations is a precondition of
individuals' freedom.(CP 325f.) Rawls means in part that
publicity of society's fundamental principles is a condition of
citizens' exercise of the powers and abilities that enable them
to take full responsibility for their lives. Full publicity is then a
condition of the political and (in *TJ*) moral autonomy of
persons, which are significant values according to justice as
fairness. (TJ SS78, PL 68, CP 325-26)



Utilitarians often regard Rawls's emphasis on the publicity of
the fundamental principles underlying social cooperation as
unwarranted. They contend that publicity of laws is of course
important for them to be effective, but there's no practical
need for the publicity of the fundamental principles (such as the
principles of efficiency and utility) that govern political decisions,
the economy, and society, much less so for the publicity of the full
justification of these principles. Most people are not interested and
have little understanding of the complex often technical details that
must go into deciding laws and social policies. Moreover, as Sidgwick
claimed, utilitarianism functions better as an "esoteric
morality" that is not generally incorporated into the public
justification of laws and institutions. Others claim that
Rawls's arguments from publicity are exaggerated. If people were
properly educated to believe that promoting greater overall happiness
or welfare is the ultimate requirement of justice and more generally
of morality, then just as they have for centuries constrained their
conduct and their self-interests and accepted political constraints on
their own liberties for the sake of their religious beliefs, so too
could they be educated to accept the promotion of social utility and
the general welfare as the fundamental bases for social and political
cooperation.


## Supplementary Documents on Other Topics



Additional topics concerining the original position are discussed
in the following supplementary documents:


* The Argument for the Difference Principle. 
Explains the Difference Principle and the least advantaged class.
Comparison of the difference principle with mixed conceptions,
including restricted utility. Arguments from reciprocity, stability
and self-respect, and the strains of commitment. Rawls's reasons
why the difference principle supports property owning democracy rather
than welfare-state capitalism.
* The Four Stage Sequence.
How principles chosen in OP (first stage) apply to choice of political
constitution (second-stage), democratic legislation (third stage), and
application of laws to particular circumstances (fourth stage).
* Ideal Theory, Strict Compliance and the Well-Ordered Society.
Why strict compliance is said to be necessary to justification of
universal principles. Sen's, Mills's, and others'
criticisms of ideal theory. Rawls's contention that ideal
theory is necessary to determine injustice in non-ideal conditions.
Role of non-ideal theory.
* A Liberal Feminist Critique of the Original Position and Justice within the Family. 
 Criticism of "heads of families" assumption in OP and
Rawls's response to criticisms that principles do not secure
equal justice for women and children. Rawls's discussion of
justice within the family.
* The Original Position and the Law of Peoples.
Rawls's extension of OP to decisions on the Law of Peoples
governing relations among liberal and decent societies. Human rights,
the duty to assist burdened peoples, oulaw societies, and
Rawls's rejection of a global principle of distributive
justice.
* Constructivism, Objectivity, Autonomy, and the Original Position.
Kantian Interpretation of the OP and Constructivism. OP as a
procedure of construction and objective point of view. Response to
Humean argument that social agreements cannot justify. Role of OP in
reflective equilibrium.
* Is the Original Position Necessary or Relevant? 
 Reply to claims that OP is superfluous or irrelevant. Why Rawls
thinks rational acceptance of principles in OP and congruence of Right
and Good is essential to justice.