A reconstruction+ of Rawls, phase 1 (continuing a series of posts)
The Original Position (O.P.) corresponds to a requirement that institutions of social justice be established (at least in broad outline) in an initial contract and not subject to repeated renegotiation in conflictual circumstances. (By analogy with interpretation of the Constitution of the United States, the O.P. provides a strict constructionism.) The social understanding embodied here is that some parties to any current dispute will have a negotiating advantage (born of greater information, power etc.) and, moreover, that the choices presented in particular situations can be too narrow to permit justice — preparatory action is needed to ensure the possibility of justice. For example, some corporations are giving women between menarche and menopause the choice of sterilization or losing their jobs. In formal terms the women are free to choose sterilization or not, but given their economic circumstances the choice is made under duress. The choice could become less constrained only if, well in advance, there had been developed a countervailing power to the corporations’ prerogative to determine the availability, range, and conditions of employment opportunities.
The Veil of Ignorance is readily interpreted as a means of blanking out interests born of historically generated and current advantages. This element is needed because, whatever we believe about the relative influence of self-interest and moral motivations on the actions of individuals, we know that, at least for now, social life resounds with the pursuit and defense of community, corporate, and national interests against the conflicting interests of others.
The Priority of Liberty over material concerns or welfare constrains the transactions governed by Equality of Opportunity and the Difference Principle. Notice first that welfare is central to Rawls’ thinking: almost all of his formulations are in terms of the welfare of the different parties; he considers the “worth of liberty” (i.e., the welfare accruing from liberty, see TJ, p. 204-5); and he does allow liberty to be constrained at least in order to achieve a minimum level of welfare. So why could he not allow liberty to be totally foregone in favor of welfare? One interpretation stems from Rawls coming to maturity with the defeat of fascism and under the specter of communism. Recall that fascist and totalitarian systems have at times proved quite successful at raising social welfare, and, moreover, have sometimes done so with less inequality of distribution than evidenced in systems guaranteeing greater personal liberty. The Priority of Liberty was originally needed, therefore, for Rawls to maintain his philosophical distance from such systems, and has been retained since.
Equal Opportunity and the Difference Principle (D.P.) form a complementary compensatory pair, each constituting a safeguard if the other does not operate reliably. Suppose that, in each generation during people’s upbringing, opportunities to develop talents were equalized (Equal Opportunity) so that inherited advantages were discounted before people commenced transactions as adults. The strict constraints on transactions ensured by the D.P., namely, that only those transactions benefitting the least well-off be allowed, would then hardly be necessary. Similarly, if (after some initial redistribution) the D.P. operated consistently, large inequalities would probably be slow to accumulate and so compensation against inherited advantages would be less necessary.
In any case, whether on their own or as part of this pair, the two principles follow readily from social observations: The wealthy do provide their heirs with greater educational opportunities and more lucrative employment opportunities. So, if inequality is not to be self-perpetuating, Equal Opportunity is needed to discount inherited advantages. Given the tendency of wealth to breed more wealth and poverty more poverty, Rawls has to temper in some way the effects of inequality in current transactions. The principle of maximizing utility (in its pure form) does not address the issue of inequality, so a different principle is needed. The wealthy cannot be relied upon to use their power to divide the cake fairly. So, leave it to someone acting on behalf of the most disadvantaged (if not the disadvantaged themselves) to decide whether some transaction tempers inequality — in short, follow the Difference Principle.
Finally, Rawls’ concern not to generate intolerable Strains of Commitment by citizens to the system of injustice tacitly acknowledges the resistance of the wealthy to constraints on their power. In the other components of Rawls’ framework there is no logical limit to redistribution and to measures to ensure Equality of Opportunity (except if it can be argued that some measure violates individual liberty). Considerations of Strains of Commitment serve to moderate (to a somewhat arbitrary degree) the unconstrained application of the other rules of justice. Although Rawls speaks of Strains of Commitment for the general person, the greatest risk to the implementation of these rules is that wealthy people would not abide by them. It is this risk that he is tacitly moderating, and in doing so the difficulty of implementation or transformation — a feature of the non-ideal realm Rawls’ claimed to exclude from his analysis — clearly enters his theory.
At this point I have introduced in broad outline a reinterpretation of the general framework derived in Rawls’ TJ. By no means has every aspect of this work been rendered coherent by extending the referents outwards to implicit aspects of the social realm. I have yet to discuss the arguments in support of this framework which make up the bulk of Rawls’ presentation (D->C in figure 1). On the other hand, within moral philosophy there exist hundreds of critical accounts and revisions of Rawls’ arguments within moral philosophy. By departing from strictly moral philosophical terms, however, my reconstruction affirms the coherence of Rawls’ framework.
What, it may be asked, is the value of seeking a coherent interpretation of Rawls, especially since my attempt to give coherence to Rawls involves me departing significantly from what Rawls literally says? Moreover, what is the value of coherence of Rawls’ general framework alone, when TJ is much more, namely, an elaborate derivation of that framework? How can we make sense of all the detail of that derivation? Why not stay within the confines of moral philosophy, dispute and revise Rawls’ arguments, and, on the terms in which it was stated, attempt to build a better framework?
My response has two thrusts: 1) If Rawls’ theory can be given coherence by referring to implicit background social considerations, then, in principle, any moral philosophical framework is open to a constructivist+ interpretation. The conventional boundary of moral philosophical interpretation (enclosing points C, D, and sometimes B in figure 1) should no longer be assumed, but must be justified, and even that justification is open to reinterpretation. 2) Constructivist+ reinterpretation abandons the pretence that issues of justice can be resolved by abstract philosophical arguments that make scant reference to social considerations. As a consequence of moving beyond abstract, asocial arguments, more concrete and direct statements about justice can be made. Table 1, which summarizes my reinterpretation of Rawls thus far, would be readily accessible to a non-specialist inquiring about Rawls’ principles.
Table 1 Summary of reinterpretation of Rawls’ framework
Institutions of justice once established are not subject to repeated renegotiation in conflictual circumstances. (note 1)
Veil of Ignorance
Blank out interests born of historically generated and current advantages. (note 2)
Priority of Liberty
No tradeoff between liberty and welfare (Contra totalitarian and fascist systems).(note 3)
Equal Opportunity & Difference Principle
Each a safeguard in case the other is not operating reliably — E.O.: Discount historically given advantages in current transactions. D.P.: Temper transactions so that wealth and poverty are not self-reinforcing. Allow someone acting on behalf of the poorest to decide what measures are acceptable.
Strains of Commitment
Moderate the unconstrained application of the preceding principles to reduce the risk of the wealthy and powerful undermining them.
Notes: 1. Consistent rule of international law, instead of “Might makes right.”
2. Including geographically given advantages.
3. Transactions, e.g., investment, cannot be conditional on suppression of political rights.
Stated so baldly, Rawls’ rules of justice, it may be objected, can seem reasonable and even desirable, but are still in need of greater justification. Let us delve deeper, therefore, into Rawls’ theory to consider the foundation he builds for his framework. Here, however, a constructivist+ perspective will lead to a much less generous assessment of Rawls’ coherence.
Daniels, N. (1989). Reading Rawls: Critical Studies on Rawls’ A Theory of Justice. Stanford: Stanford University Press
Lyons, D. (1989). “Nature and soundness of the contract and coherence arguments,” pp. 141-167 in N. Daniels (ed.) Reading Rawls: Critical Studies on Rawls’ A Theory of Justice. Stanford: Stanford University Press
 Other moral theorists have claimed, for example, that the Difference Principle would not be chosen by participants in the Original Position (Lyons [1973, 1989]) or that liberty and welfare should be jointly subject to the Difference Principle. See Daniels , 1989 for a range of other criticisms.
 Moreover, the framework thus expressed is readily extended to rules of justice among nations. This extension is intelligible whether or not one thinks that nations are the relevant entities upon which to build in thinking about international justice.