JUSTICE AS THE FIRST VIRTUE OF A SOCIETY

In A Theory of Justice, John Rawls has presented a detailed analysis of the

nature of the concept ‘Justice’ which applies to the ‘basic structures’ in a ‘modern

constitutional democracy’. It does not attempt to define justice in general , rather it

explores how justice is to be understood if it is intuitively recognized as a salient

feature of a ‘democratic regime’. His main emphasis is on procedural justice.

Following a just procedure some basic regulative principles have to be arrived at.

These principles are to be honoured in all subsequent deliberations on justice

regarding constitutional essentials.

Rawls conceives ‘justice’ as a virtue neither of a human character nor of any

particular action but of institutions because by ‘basic structure’ he means a society’s

main social, political and economic institutions collectively constituting one unified

system of social cooperation. Here, society stands for a democratic state which

identifies its citizens as free and equal rational individuals with diverse philosophical

and religious beliefs and ends but all cooperating among themselves with the view

of enhancing their mutual social advantages from one generation to the next.

Therefore, all individuals are necessarily required to seek affiliation to certain

social, political institutions of such a state which Rawls technically calls ‘ practice’--

- it stands for any form of activity specified by a system of rules that defines the

structure of the activity. He specified at least three essential features of the idea of

social cooperation. These are as follows: 1) Social cooperation is distinct from

merely socially coordinated activity – for example, activity coordinated by others

issued by an absolute central authority. Rather, social cooperation is guided by

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publicly recognized rules and procedures which those cooperating accept as

appropriate to regulate their conduct. 2) The idea of cooperation includes the idea of

fair terms of cooperation. 3) The idea of cooperation also takes into account the idea

of each participant’s rational advantage.1

Rawls holds that in order to comprehend the meaning of justice one needs to

distinguish between the different applications of the concept; whether it is used in

respect of persons, practices or particular actions because in his view these are

indeed connected but their interconnectedness does not imply that they are identical.

As per his interpretation, justice in the sense of a virtue of a practice upholds a

political conception of justice as against a metaphysical one. Rawls argues that a

concept of justice should not be affected by different or even controversial

philosophical and religious doctrines in order to be ‘political’. By the term

‘philosophical’ Rawls refers to ‘metaphysics’. In fact, he is aware of the fact that

reasonable pluralism is a permanent feature of a democratic society and this

,according to him also characterizes the subjective circumstance of justice.2 His

major concern is what should count as the basic principles of ‘domestic justice’ and

what process would facilitate the formulation of such principles. In this context he

writes, “…to formulate such a conception we apply the principle of toleration to

philosophy itself: the public conception of justice is to be political, not

metaphysical.” 3 However, it is important to note that, Rawls actually identified three

levels of justice – first, is local justice (principles applying directly to institutions

and associations); second is domestic justice (principles applying to the basic

structure of society) and global justice (principles applying to international law).4

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 It is the central contention of Rawls that the principles of justice essential to

the structure of constitutional democracy must be characterized as political in

contrast to more comprehensive moral, philosophical and religious doctrines on

which agreement is not possible within the pluralism of modernity, and that the

concept of justice is not its being true to an antecedent moral order, but its

congruency with our self-understanding within history and traditions embedded in

our public life. In view of Galston, the content of the principles that Rawls refer to in

his theory is provided by the shared beliefs of the democratic community.5 Rawls

insists that principles of justice initially given within a tradition must be weighed

against rival moral theories and in relation to scientific theories of human nature and

society in order to establish what seems ‘most reasonable to us’. In this context,

Terry Hoy points out that while the anti-foundationalist trend in contemporary

philosophical analysis itself has raised problems regarding any possibility of self-

evident a priori principles of justice and also regarding the criteria of what counts for

rational speech and action in case of the plurality of language games and forms of

life, “Rawls’s concept of a political constructivism provides an approach to moral

justification that would seek to avoid both the inadequacies of classical

foundationalism as well as moral skepticism or cultural relativism.” 6

Such a theory of justice is expressed in terms of rightness or fairness and not

in terms of goodness. Therefore, according to Rawls, in matter of justifying a

principle of justice the idea of right rules over the idea of good or end. He argues

that parties in the original position try to increase their conception of good to the

best of their ability but “in attempting to do this they are not bound by prior moral
7
ties to each other.” Thus, justice as fairness should not be interpreted as a

comprehensive doctrine of moral goodness. Now, we may try to understand the

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meaning of the term ‘fairness’ as a demand for impartiality for avoiding bias in our

evaluations and also to take note of interests and concerns of others as well.8

It then appears that, justice has various connotations. Among them, Rawls’s

major concern is explication of principle of fairness which in his view, is capable of

constituting a just practice of a society by enabling it to execute its functions

properly, i.e., to distribute fairly among all its participants certain ‘benefits’ such as

wealth, social prestige, basic rights along with certain ‘burdens’ like duties and

penalties in a right or fair proportion. And this proportional distribution is

determined by rules of a practice following two principles of justice. The

justification of fairness of distribution lies in the fact that such principles are

publicly acknowledged and voluntarily accepted by each participating in the

practice. Hence, for Rawls, a fair practice ensures a just or well-ordered society.

Being well-ordered, conveys three things: “First, …and implied by the idea of a

public conception of justice, it is a society in which everyone accepts and knows that

everyone else accepts the very same political conception of justice (and so the same

principles of political justice). Moreover this knowledge is mutually recognized: …

Second, … societies basic structure – that is, its main political and social institutions

and the way they hang together as one system of cooperation- is publicly known or

with good reason believed, to satisfy those principles of justice. Third, … citizens

have a normally effective sense of justice, that is, one that enables them to

understand and apply the publicly recognized principles of justice and for the most

part to act accordingly as their position in society, with its duties and obligations

requires.”9 But he argues that fairness is only one of the characteristics of a good-

society. Despite being fair it might lack certain other attributes of a society. Thus, to

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equate a just society with an all-inclusive vision of good society would be an over

simplification of the concept of a good society. 10

According to Rawls, principle of fairness presupposes the fact of inequality.

Thus, to accommodate the social, political and economic differences commonly

present in the lives of the citizens, Rawls formulated his “Difference Principle”. It

holds that inequalities are just so long as they result in compensating benefits for

everyone. in respect of offices, positions, rights and duties as specified by the first

principle, that is, the “Principle of Equal Liberty” does not permit any unequal

distribution of prestige and wealth which results from any sort of social

contingencies and natural fortune. Therefore, all inequalities are not unjust as per

Rawlsian version. Only if any inequality cannot produce benefit to all including the

least advantaged persons it is considered as injustice by Rawls.11 Such a practice is

regarded as unjust. It is a right of the participants to lodge complaint against such a

practice and its rules needs to be reassessed . So, one needs to distinguish between

different senses in which the concepts equality and inequality are applied to a theory

of justice. Thus, Rawls claims that following the two principles of justice, any

deviation and distortion on distributive shares can be prevented.

Being the rational citizens of a liberal democratic society, the individuals

have the freedom to present their respective claims and calculate their individual

interests and in practical life they exercise this freedom by ‘pressing claims on each

other’ as they demand that these deserve due consideration. And in Rawls’s opinion,

it is these conflicting or competing claims that give rise to the principle of justice.

Conflict of claims is a characteristic feature of Liberalism. “They are the principles

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that free and rational persons concerned to further their own interests would accept

… as defining their fundamental terms of their association.”12

It is important to note that Rawls has specified that in his theory idea of

‘person’ belongs to a political conception of person. To quote him, “This means that

the conception of the person is not taken from metaphysics or the philosophy of

mind or from psychology; it may have little relation to conceptions of the self

discussed in those disciplines. It must, of course, be compatible with (one or more)

13
such philosophical or psychological conceptions… but that is another story”.

Rawls asserts that such a conception is characterized by two moral powers: the

capacity for a sense of justice and a capacity to have, to revise and rationally to

pursue a conception of the good. 14

Again in his theory, Rawls describes the terms ‘free’ and ‘equal’ in a

particular sense. He explains that to say that citizens are ‘equal’ persons means they

possess to the minimum degree the moral capacities that enable them to participate

fully in the cooperative life of society. And citizens are ‘free’ not in the sense of

having freedom of will. Rawls clarifies that the relevant meaning of free persons is

to be drawn from the political culture of a democratic society according to which

citizens are free in two respects: a) citizens consider themselves as free because the

they are capable of revising and changing conception of good on reasonable and

rational ground and in doing so their legal or political identity is preserved. Another

respect in which citizens are free is their ability to become self-authenticating

sources of valid claims which have their own importance apart from being derived

from social obligations.15

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 Hence, one could infer that Rawls’s theory of justice puts emphasis upon

individual rights. Any dispute regarding a right-claim is not intended to be settled

with reference to an end such as the idea of good or the glory of God. 16 Now, we

may try to understand what a right-claim is following J.L.Mackie’s exposition of

the term. According to Mackie, a right-claim is a kind of right which surely needs

to be distinguished from the kind that exemplifies liberty. But, a liberty and a

related claim- right may go together. Both liberty and right-claim either speaks of

or occurs within a particular legal or moral system.

Thus, Mackie says, “To say that someone has a certain right-claim may

…be to say that if he claims (or if someone representing him claims on his behalf)

whatever it is that he has this right to, the system will support his obtaining what he

claims- or ( speaking within the system) to say that he has this right may be to give

him this support, typically by imposing on one or more or indefinitely many others
17
the duty of fulfilling the claim if it is made.” In other words, it asserts that it is

a politico-legal process that actually determines rights. Consequently, no right is

absolute or a priori in nature. However, as regards the legitimacy of right-claims

related to primary goods Rawls maintains that it is to be determined by judging the

merit of such claims and the standard means of adjudication is called the two

Principles of Justice by Rawls. Thus, he holds that the function of justice is to

strike a fair balance i.e., to weigh the appropriateness of all competing right-

claims. However, it seems that Rawls has not used the term legitimate in juridical

sense alone as he interprets it as “…each has a conception of legitimate claims

which he thinks reasonable for others as well as himself to acknowledge. A

practice is just … if it satisfies the principles which those who participate in it

18
could propose to one another for mutual acceptance.” Rawls, therefore claims

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 that this is feasible only when the good of the members of a well-ordered society is

effectively regulated by a public conception of justice that could be worked out by

over-lapping public reason which justifiably provides citizens with a ‘ corporate

and coercive political power’ in case political matters are at stake.. Rawls calls this

the principle of political legitimacy.19

In this context, Rawls points out that there might be a tendency to

misinterpret the nature and scope of the motivation assumption. For example, to say

that the parties are mutually disinterested is generally meant that they are self-

interested individuals with individualistic aims. In view of Rawls, the members of a

well-ordered society does not require to strive for gain or for greater power as

required for their self-protection since it ensures an equal liberty and freedom of

association. Here it should be mentioned that by “power”, Rawls definitely means

power to create a structure of rights and duties by following certain procedures that

the court will enforce ; powers that provide individuals with facilities for achieving

their aims. For instance, power to make a will. Such powers, according to him are

classified as primary goods like liberties and opportunities. Rawls himself argues,

“…that political and economic power is a primary good I never meant to say ; if at
20
certain points the text will bear this interpretation, it needs to be corrected.” In

fact, Rawls believes that a scholarly and communal form of life may be secured in a

society following the two principles and any personal or individualistic ambitions

may pose a distraction in the path of achieving such ideal. Thus, Rawls claims that

“…there seems no reason offhand why the ends of people in a well-ordered society

should be predominantly individualistic.” 21

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 Now let us turn our attention to the idea of ‘primary good’ as presented by

Rawls:

Primary goods are defined by Rawls as “…things needed and required by

persons seen in the light of the political conception of persons, as citizens who are

fully cooperating members of society and not merely as human beings apart from

any normative conception. These goods are things citizens need as free and equal

persons living a complete life; they are not things it is simply rational to want or

desire or to prefer or even to crave.”22 For Rawls, the list of primary goods include

rights, liberties and opportunities, income and wealth. To this he also adds, “A very

important primary good is a sense of one’s own worth.23 Although Rawls admits

that what count as a primary good indeed depends on general fact about human

needs and abilities and relation of social interdependence, yet, he stressed that the

account of primary good does not depend exclusively on psychological, social or

historical facts.24

However, it may be noted that in A Theory of Justice, the way Rawls

explicates the reason for considering ‘self-respect’ as a primary good seems to be

incompatible with the version of primary good which appears in the A Restatement.

In A Theory of Justice, Rawls has put it as follows:

“It is clear then why self-respect is a primary good. Without it nothing may

seem worth doing or if somethings have value for us, we lack the will to strive for

them. All desire and activity becomes empty and vain, and we sink into apathy and

cynicism.”25

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 The two principles that Rawls formulates as the criterion of justice, i.e. of

just distribution of primary goods are:

1) “Each person has the same indefeasible claim to a fully adequate scheme

of equal basic liberties which is compatible with the same scheme of liberties for

all

2) Social and economic inequalities are to satisfy two conditions: first,

they are to be attached to offices and positions open to all under conditions of fair

equality of opportunity; and second they are to be the greatest benefit of the least-

advantaged members of society( Difference Principle).” 26

Now, a few points regarding these two principles need elaboration –

1) Rawls prioritize the first principle over the second and also in the second

principle, fair equality of opportunity is given priority over the difference principle

because he holds that in applying a principle, the prior principles should be fully

satisfied as he explains “… this priority rules out exchanges …. Between the basic

rights and liberties covered by the first principle and the social and economic

advantages regulated by the difference principle. For example, the equal political

liberties cannot be denied to certain groups on the grounds that their having these

liberties may enable them to block policies needed for economic growth and

efficiency.”27

2) The term ‘basic liberty’ in the statement of principle occurring in A

Theory of Justice has been replaced by the term ‘scheme of equal basic liberties’ in
28
Restatement by Rawls to clarify that no priority is given to liberty as such. The

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 reason behind this is perhaps like the traditional liberal thought, Rawls wanted his

‘Justice as Fairness’ to focus on achieving certain specific rights and liberties as

well as specific constitutional guarantees as given by the declaration of rights of

man.29

3) The phrase ‘fair equality of opportunity’ in the second principle has a

special significance. It requires that, “… not merely that public offices and social

position be open in the formal sense, [careers open to talent] but that all should

have a fair chance to attain them. … In all parts of society there are to be roughly

the same prospects of culture and achievement for those similarly motivated and

endowed.”30

In Rawls’s opinion, both parts of the second principle aim at establishing

democratic equality which favors an egalitarian concept of society and seeks to

prevent any kind of injustice in the form of unfair socio-economic distribution or

greater expectations of ‘have lots’ which stems from ‘social contingencies’ or

‘natural fortune’. He says, “…unless there is a distribution that makes both persons

better off …, an equal distribution is to be preferred’’. 31

Regarding the characteristics of the two principles of justice Rawls

maintains that they are a product of a free bargain among a group of rational, free,

self-interested persons who unanimously choose such principles and thereby

willfully agree to abide by them by signing a contract which cannot be broken

according to their sweet will. The reason for this unanimity is that they have been

proposed independently by each member of the contracting group after enough

bargaining and therefore each acknowledges the principles to be in his best

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interest. Thus, Rawls urges that his theory of justice as fairness should be treated

as an example of a contract theory. The term contract has a special significance in

the theory as it has been purposely used by Rawls to uphold the idea that although

principles of justice expresses freedom of thought of individuals belonging to a

group, yet the issue of justice cannot be settled until it is made public, i.e., “…the

conditions that the appropriate division of [social] advantages must be in

accordance with principles acceptable to all parties … Citizens have a knowledge

of the principles that others follow.” 32

The above observation reveals two facts. First, it entails the idea of

plurality as contract signifies that principles of justice apply to the relations among

several persons or groups. Second, the contractarian idea of the concept of justice

as one of the virtues of an ethical system however leaves aside a discussion about

how individuals are to conduct themselves toward animals and the rest of nature.33

Third, two principles of justice “…cannot be deduced from self-evident premises,

...; instead, its justification is a matter of the mutual support of many considerations

of everything fitting together into one coherent view.” 34

Moreover, the nature of the contract that Rawls introduces is hypothetical.

In this context Dworkin says, “Rawls does not suppose that any group ever entered

into a social contract of the sort he describes. He argues only that if a group of

rational men did find themselves in the predicament of the original position, they

would contract for the two principles.”35 Therefore, on Rawls’s account

deliberation of two principles of justice is plausible only if it satisfies two major

conditions—

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 First, the contracting parties must recognize themselves to be motivated by

a sense of justice intuitively revealed in a rational state. Rawls names it “reflective

equilibrium” that is manifested in the form of a ‘constraint of morality’ which

consists in

a) Limiting pursuit of one’s own interest so that his basic liberties are

compatible with that of others.

b) Acknowledging that principles of justice apply impartially to one’s

own conduct as well as to that of another.

c) A firm commitment in advance to comply with the two principles

similar to principles of morality and not to manipulate them to suit one’s

circumstance.

d) An accompaniment of obligation to explain if one acts contrary to

the principles or to show remorse or shame or to display a wish to amend.

In his Understanding Rawls, Robert Wolff argues that the only plausible

justification for Rawls behind the introduction of the concept ‘reflective

equilibrium’ is his desire to provide a logical status to man’s conviction in the two

principles of justice. Rawls purposely uses it for constructing the proof for

deducing ‘undeniable conclusions from undoctored premises’. Thus, “Rawls

clearly thinks, … nothing more could rationally be demanded of a moral

philosopher or a reasonable citizen.”36

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 Secondly, the moral capacities of the contracting members reveal the moral

psychology of individuals who are ignorant about their specific position in the

society, their caste and natural endowments and therefore, cannot to get any sort of

undue advantage to improve their condition on such grounds. This, on Rawls’s

assumption portrays the mental make-up of persons in the original position whose

knowledge regarding specific contingencies and special features of psychology are

covered by a veil of ignorance. They are, however, equipped with all general

information which ensures a stable social cooperation and thereby creates the

circumstance of pure procedural justice which consists in an obligation to formulate

or evaluate principles of justice by following a procedure solely based on general

considerations about human society. 37

The idea of the original position helps to understand the moral features of

Rawls’s theory of justice.

According to Rawls, “… the original position is to be understood as a device

of representation. As such it models, our considered convictions as reasonable

persons by describing the parties (each of whom is responsible for the fundamental

interests of a free and equal citizen) as fairly situated and as reaching an agreement

subject to appropriate restrictions on reasons for favoring principles of political

justice.”38 In the opinion of Ronald Dworkin, the original position is constitutive of

man’s capacity to make moral judgements particularly those about justice.

According to him the original position depicts a “schematic representation of a

particular mental process of at least some and perhaps most human beings.” 39 In his

theory, Rawls himself speaks of a sense of justice in man. He, however, does not

equate this sense with morality in general. He only asserts that sense of justice is as

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fundamental to human life as it is man’s capacity to make moral judgements

especially judgements about justice and reveals a commitment which is similar to

the commitment to morality. In “Sense of Justice”, Rawls argues, “If men did not do

what justice requires, not only they would regard themselves as bound by the

principles of justice, but they would be incapable of feeling resentment, indignation

and they would be without ties of friendship and mutual trust. They would lack

certain elements of humanity.” 40 Therefore, to Rawls, sense of justice is , however,

intrinsic to human essence.

At this point, it is important to mention that for Rawls, ‘resentment’ and

‘indignation’ are not the same as ‘anger’ and ‘annoyance’ as he argues that

“Resentment and indignation are moral feelings. Resentment is our reaction to the

injuries and harms which the wrongs of others inflict upon us, and indignation is our

reaction to the injuries which the wrong of others inflict on others. Both resentment

and indignation require, then an explanation which invokes a moral concept, say the

concept of justice and its associated principle(s) and so makes a reference to a right

or a wrong.”41 Thus, according to Rawls, sense of justice is similar to a moral

sense.In fact, Rawls has tried to explain this sense without taking the help of any

element of morality. He says “…in the life of every society there must be at least

some relations in which the parties consider themselves to be circumstanced and

related as the concept of justice as fairness requires.” 42

Again, In Taking Rights Seriously, Dworkin compares the conditions giving

rise to the two principles in Rawls’s theory of justice with the innate categories of

morality common to all human beings as he argues that in order to deny these
43
principles one has to abandon the power to reason about morality. Hence, it

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seems that Rawls actually wanted to bring to light the fact that the two principles

of justice manifest only a general human motivation as the persons formulating the

principles neither make any agreement as regards the said principles specific to a

given practice nor do they adopt any particular strategy. Rather, any concept of

justice becomes meaningful if it has relevance to one another who consider

themselves to be similarly situated and thereby intend to judge the arrangement of

their common affairs. In his article, Terry Hoy argues that Rawls however believes

that justice as fairness is not to be interpreted as Hobbesian modus vivendi as

Rawls specifies that the overlapping concensus which his concept of justice

embodies is not simply in accepting a certain authority, or simply as compliance

44
with certain institutional arrangements. Rawls observes, “For all those who

affirm the political conception start from their own comprehensive view and draw

on the religious, philosophical and moral grounds it provides.”45 This observation

also reveals another fact of human psychology, that is, the original position infuses

within all rational but self-interested human beings a sense of equality and a sense

of reciprocity --- two axioms that can be deduced from the sense of justice. Each

person recognizes an equal right to information about the rules of justice and it is

therefore the duty of the institutions to interpret the rules equally to all persons of

the society. Again, each practice has the right to consider all participants

possessing equal moral constraints and thereby it enjoins an idea of duty on the

part of a person to abide by a reciprocal relation in the matter of limiting his own

liberty with another person as well as with an institution.

Hence, Rawls would consider an action to be just if it conforms to or agrees

with two principles of justice which assigns their rights and duties of all human

beings. And for Rawls the merit of justice consists in “acting fairly”. It is the

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 question of deciding how fair is the conformity between a particular act and the

standard of justice that prompted Rawls to propound a theory of justice in terms of

fairness. “The Principle holds that a person is under an obligation to do his part as

specified by the rules of an institution whenever he has voluntarily accepted the

benefits of the scheme or has taken advantage of the opportunities it offers to

advance his interests, provided that this institution is just or fair, that is, satisfies

the two principles of justice. … We are not to gain from the cooperative efforts of
46
others without doing our fair share.” That is why Rawls argues that “… acting

unfairly is not so much the breaking of any particular rule even if the infraction is

difficult to detect (cheating), but taking advantage of loopholes or ambiguities in

rules, availing oneself of unexpected or special circumstances which make it

impossible to enforce them, insisting that rules be enforced to one’s advantage

when they should be suspended and more generally acting contrary to the intention

of a practice.” 47

From the above discussion it follows that the concept of right and the

concept of duty deserve special attention in Rawls’s theory of justice.

Liberalism as a philosophical doctrine pioneers ‘autonomy’ and ‘individuality’

as against the supremacy of any social collectivity. It recognizes that each person has

the freedom, the capacity and the responsibility to form and pursue his or her

conception of determinate ends and to seek happiness each in his or her own way so

long as this is done in a lawful fashion. Hence, it advocates that it is absolutely

essential to provide every individual with certain basic rights and liberties. The most

important among these are right to speech, right to form association, right to choose

one’s occupation, freedom of thought and conscience and other civil and political

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rights. The state does not have the right to interfere with the individual rights.

However, Rawls clarifies that the state is also not expected to favor any particular

comprehensive view. According to him, this feature of liberalism known as ‘political

liberalism actually distinguishes it from comprehensive liberalism.48 For Rawls, “…

the role of justice is to assign rights and duties and to determine the division of

advantage.”49

Thus, Rawls’s theory of justice echoes the basic tenets of political liberalism

underlying his socio-political thought. In view of Rawls it is the duty of the basic

structure to distribute respective shares of ‘benefits’ such as wealth, social prestige of

every citizen along with their burdens and penalties. And it is also acknowledged that

every participating member in a democracy could justifiably press right-claims on

each other out of his concern to maximize his self-interest. But in this regard, Rawls

specifies that “Apart from existing institutions, there is no prior and independent idea

of what we may legitimately expect, or of what we are entitled to, that the basic

structure is designed to fulfill. All claims arise within the background system of fair

social cooperation; they are based on its public rules. …”50 However, Rawls admits

that it is impossible to solicit all their claims. Therefore for a sound adjudication of

right-claims, Rawls claims, the two principles of justice should be referred to.

According to Rawls, If the participants accept the rules of a practice as fair and have

no allegation against it there arises a prima facie duty of the concerned parties to each

other to act in accordance with the rules of the practice when it is required to comply.

The intuitive idea is that when a number of persons engage in a mutually

advantageous cooperative venture according to certain rules and thus voluntarily

restrict their liberty, those who have submitted to these restrictions when required

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have the right to a similar acquiescence on the part of those who have benefited from

their submission.”51

Hence, it appears that the rights and duties that Rawls talks about are special

rights and duties conditioned by previous actions voluntarily undertaken. That is, such

rights depend on their being engaged in a common practice and on their conscious

acceptance of the benefits offered by that practice. Rawls thinks it would be

considered unfair if one accepts the benefits but refuses to share in its burdens. He

calls such a duty the ‘duty of fair play’. It “… is not of course, intended to account for

its being wrong for us to commit crimes of violence, but it is intended to account in

part, for the obligation to pay our income tax, to vote and so on.”52 Further, it does not

resemble an obligation which presupposes a deliberate performative act in the sense

of a promise or a contract in the ‘original position’. Such promise or contract actually

sanctions the two principles of justice that provides the foundation for all other social-

political obligations. Therefore, it is absolutely binding on the contracting parties to

maintain the contract and to abide by the two principles so long as a different set of

principles of justice are not formulated.

On the contrary, duty of fair play issues a social-political obligation as

Rawls holds that any political obligation is sufficiently justified if a party accepts

the benefits of a practice which is recognized as fair according to the two

principles of justice. One cannot be simply released from this obligation at his will

for that would imply a denial of the justice of the practice in question. Therefore,

Rawls points out that it could be only justified if a person rejects a practice or

questions the validity of any single rule, but in that case, he should as far as

possible, declare his intention in advance and avoid participating in it or enjoying

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its benefits. This led Rawls to assert that “… the moral obligation to obey the law

is a special case of the prima facie duty of fair play.”53

Thus, he says, “ It would be incorrect to say that our duty not to commit

any of the legal offences, specifying crimes of violence, is based on the duty of fair

play, at least entirely. These crimes involves wrongs as such, and with such

offenses, as with the vices of cruelty and greed, our doing them is wrong

independently of there being a legal system the benefits of which we have

voluntarily accepted.”54

On Rawls’ view, although the duty of fair play like other duties of fidelity,

gratitude involves a moral element in it, still it should be distinguished from them.

It may be conceived as a moral duty insofar as it implies a self-constraint on

individual liberty which is the characteristic feature of a sense of morality. Rawls

observes, “while justice does not require of anyone that he sacrifices his interests

in that general position and procedure whereby the principles of justice are

proposed and acknowledged, it may happen that in particular situations, arising in

the context of engaging in a practice, the duty of fair play will often cross his

interests in the sense that he will be required to forgo particular advantages which

peculiarities of his circumstances might permit him to take. …It is simply the

consequence of the firm commitment…” 55

Moreover, Rawls holds that the acceptance of the duty of fair play by

participants in a common practice reflects each person’s recognition of the

aspirations and interests of others to be realized by their joint activity which entails

a criterion for recognizing another as person with similar interests, capacities and

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feelings as oneself. Here Rawls shares in The Kantian moral formula of respect for

individual human dignity to account for man’s ability to recognize another as a

person for he argues that otherwise they would not recognize one another as

persons at all but as complicated objects involved in a complicated activity. 56

Therefore, following Kant, Rawls admits that to recognize every person as

equally self-interested human beings and thereby to refrain from treating each

other as a means of satisfying their own interests is definitely a moral duty of each

person. Rawls points out that such recognition consists in an act of responding to

the other person in certain ways which entails certain prima-facie duties. But

acknowledging these duties in some degree, for Rawls is neither matter of choice,

nor of intuiting moral qualities, or a matter of the expression of feelings or

attitudes. To him, it is simply the possession of one of the forms of conduct in

which the recognition of others as persons is manifested.

Rawls further points out that “there is no ‘moral value’ in the satisfaction of

a claim incompatible with duty of fair play. Such a claim violates the conditions of

reciprocity and community among persons.” 57

Thus, on Rawls’ account, duty of fair play admits acts of omission, i.e. of

certain acts which parties of a practice ought not to do. In this context, Rawls

writes, “… in deciding on the justice of a practice it is not enough to ascertain that

it answers to wants and interests in the fullest and most effective manner. For if

any of these conflict with justice, they should not be counted, as their satisfaction

is no reason at all for having a practice. It would be irrelevant to say, even if true,

that is resulted in the greatest satisfaction of desire. In tallying up the merits of a

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practice one must toss out the satisfaction of interests the claims of which are

incompatible with the principles of justice.” 58

Rawls argues that he who presses it not being willing to acknowledge it

when pressed by another, has no grounds for complaint when it is denied; whereas

he against whom it is pressed has a right to complain. As it cannot be mutually

acknowledged it becomes a resort to coercion. This, amounts to a case of

retributive justice and according to Rawls this may be understood as acts of

commission instructed by the duty of fair play.

From the afore-said observations, one could justifiably infer the following

points:

First, the theory that Rawls propounds is not based on rights but on justice

as Rawls holds that the two principles of justice are more fundamental than any

concept of socio-political right.

Second, the two principles of justice are absolute and unchangeable within

the framework of constitutional democracy. As a result, the freedom and benefits

enjoined by the two principles are also absolute and inviolable. But any other right

that is or may be deduced from two principles are provisional in nature.

In Rawls’ opinion, although the two principles of justice which he

formulates in his theory of justice, may be regarded as the principles indispensable

for any and every just society, yet he specifically mentions that those two

principles are actually meant for a ‘regime’ that is marked by a ‘constitutional

democracy’.

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 Rawls thinks that such a constitutional framework provides its citizens

with certain fundamental liberties. These may be guaranteed in a bill of rights or in

other clauses of a written constitution interpreted by a supreme court with the

power of judicial review or may be secured by certain constitutional conventions

and statutes which the supreme legislature would in no circumstance violate or

override. Rawls explains this phenomenon in the following way----“Since the

constitution is the foundation of the social and political structure, the highest order

system of positive rules regulative in relation to other institutions, the

constitutional liberties define and establish an initial position of equal liberty.” 59

In Rawls’s opinion, complex of rights and duties characterize any basic

liberty. He holds that any liberty can be explained by a reference to three items.

These are- the agents who are free, the limitation which they are free from and what

it is that they are not free to do.

Associations as well as natural persons may be free or not free and

constraints may range from duties and prohibitions defined by law to the coercive

influences arising from public opinion and social pressure.

Some of the examples of Constitutional liberties are – liberty of the person,

liberty of conscience and freedom of thought, political liberty, freedom of

movement and equality of opportunity. According to Rawls in matters of these

liberties, no person is favored over another. This proves that in a democracy every

citizen is ought to enjoy an equal right to these liberties. He further holds that

freedom of the person and civil liberties ought not to be sacrificed to political

liberty or the freedom to participate equally in political affairs.

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 Thus, it may be said that Rawls seems to confine his discussion about

liberty to the concept of liberty in connection with constitutional and legal

restrictions.60 This liberty, therefore, stands for a certain structure of institutions, a

certain system of public rules defining rights and duties. Therefore, liberty of

conscience when considered to be defined by law, then Rawls’ explanation would

be that individuals have this basic liberty when they are free to pursue their moral,

philosophical or religious interests without legal restrictions; that is the legal

system requiring them to engage or not to engage in any particular form of moral

or religious practice and when other men have a legal duty not to interfere. Hence,

it seeks to assert the idea that it is not enough to permit individuals to do or not to

do something but it is equally important and necessary also that government and

other person must have a legal duty not to obstruct. Thus, he says, “A basic liberty

covered by the first principle can be limited only for the sake of liberty itself….”61

Rawls admits that in addition to the principles for basic structure of society, a

theory of justice demands certain other principles also without which, he believes

that a conception of justice would remain incomplete. So, Rawls accepts another

three sets of principles namely, i) principles for individuals, followed by the ii)

principles for the law of nations and finally iii) the priority rules for ‘assigning

weights when principles conflict’.

Rawls however argues that the principles for institutions or the two

principles of justice should be ranked first in the hierarchy of principles as he feels

that the obligations on the part of individuals presuppose principles for social

forms. They feel obliged to those principles as these have been presupposed by

them prior to their sense of obligation. Therefore, it is called the duty to support

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just institutions. This, in Rawls’s view reveals the social nature of justice.

Principles applying to individuals however are not unconditional as individuals’

obligation arise if and only if the institutional rules and laws satisfy two conditions:

first, if the institution is just or fair and second, individuals enjoy voluntarily the

benefits of a just institution to which they are affiliated.

Hence, it appears that Rawls distinguishes obligation from duties.

Obligations are conditional in nature while duties are not. Rawls observes, “…it is

not possible to have an obligation to autocratic and arbitrary forms of government

…Obligatory ties presuppose just institutions or ones reasonably just in view of the

circumstances.”62 He argues that “unjust social arrangements are kinds of extortion

63
and any consent to them is not binding.” This point of contention also seeks to

justify that ‘justice as fairness’ as a sort of a social contract theory should be free

from the vice of attempting to coerce the citizens consent or win their tacit

agreement in a sophisticated way. In view of explaining the characteristic feature

of an obligation that they are owed to definite individuals particularly those who

are cooperating together to maintain the required social arrangement, Rawls cites

the example of the political act of holding public office in a constitutional regime.

He points out that it is this act that entails obligation to fulfil the ‘duties’ of office

which actually determine the content of the obligation. By the term ‘duty’, Rawls

however does not refer to moral duties in Kantian sense of the term. According to

Rawls, although one might have a moral reason for discharging his duties, still he

insists that duties are to be understood as ‘tasks and responsibilities assigned to

certain institutional positions’.

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 But Rawls at the same time feels that “…it seems appropriate to distinguish

between those institutions or aspects thereof which must inevitably apply to us

since we are born into them and they regulate the full scope of our activity and

those that apply to us because we have freely done certain things as a rational way

of advancing our ends. Thus, we have a natural duty to comply with the

constitution whereas we have an obligation to carry out the duties of an office …

64
that we have joined.” When a person assumes public office, he becomes

obligated to his fellow citizens for seeking their trust and confidence and for

extending his cooperation with them in running a democratic society. On Rawlsian

account, such an obligation may be described as a moral requirement. Rawls thinks

that the person’s activity calls for the same moral obligation which likewise

bounds a person joining a game to play by the rules and thereby to prove himself a

good sport. According to Rawls such obligation is the product of the Principle of

Fairness. And since, this principle is concerned with the justice of institutions or

practices, therefore one could infer that by moral requirement Rawls’ identifies

public morality.

Rawls however mentions two exceptions in respect of political obligation.

In the first place, Rawls argues that citizens in general are free from a

political obligation since it is not clearly specified what politically binding action

holds for average citizens, that is, those who do not hold any public office.

Secondly, an obligation to keep promises itself is not a moral principle but

a constitutive convention. In this respect it is on a par with legal rules and statutes,
65
and rules of games. It is not absolute in Rawls’s opinion for he points out that

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the phenomenon of promise-keeping can be sufficiently explained only with the

reference to an analysis of the nature of the relevant practice.

In sharp contrast to obligation, Rawls however holds that individuals do

have many natural duties to perform. But Rawls says that these are neither

accounted for nor dictated by any single principle like the Principle of Fairness or

whatsoever. “Thus, we have a natural duty not to be cruel and a duty to help
66
another whether or not we have committed ourselves to these actions.”

According to Rawls, duties may be classified as a) positive and b) negative.

Among positive duties are the duty of mutual aid and the duty of mutual respect as

they involve doing something good to another human being. Whereas duty not to

harm another and duty not to cause unnecessary suffering are instances of negative

duty as they require abstinence from doing something that is considered a wrong.

This distinction, Rawls holds is intuitively revealed to men.

Rawls puts forward the following as characteristic features of natural

duties. 67

First, they apply to rational individuals irrespective of any regard to

voluntary acts. In fact, the reason why Rawls calls these duties natural is that he

believes that whether or not we have committed ourselves to such acts, they are

however, binding on us.

Secondly, they have no necessary connection with any practice, whether

social, political or legal.

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 Thirdly, the content of duties are not defined by the rules of any socio-

political arrangement.

Fourthly, duties hold between persons irrespective of their institutional

relations; as equal moral persons.

Finally, duties are natural and not institutional as they are owed not only to

‘definite individuals’, cooperating together in a particular social arrangement but as

persons in general.

From the standpoint of ‘justice as fairness’, Rawls however, maintains that

a fundamental natural duty is the duty of justice. This duty requires us to support

and comply with just institutions that exist and apply to us. Thus, Rawls claims

that “…the principles that hold for individuals may be identified as those that

would be acknowledged in the original position.”68 Rawls thus holds that the duty

of mutual respect is shown to persons insofar as they claim themselves to be moral

beings, i.e. beings with a sense of justice and a conception of good. Similarly,

Rawls tells us that the duty towards mutual aid affects quality of everyday life as

writes, “The primary value of it does not lie in the help one receives but the value

is measured by our sense of confidence and trust in other men’s good intentions

without which a sense of human being’s own worth would be made impossible.” 69

Now, Rawls asserts that his justice as the principle of fairness entails both

obligations as well as natural duties. According to him, men are born in a society

whose institutions or practices regulate ‘full scope’ of man’s activities. Thus,

Rawls says, each is bound to these institutions independent of his voluntary acts. In

other words, natural duty of man consists in supporting just institutions. In Rawls’s

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view, “Principle of natural duty also helps one to justify the concept of obligation
70
which is dictated by the rules of the just institutions.” Hence, it may be stated

that in Rawlsian framework, complying with a just practice comprises one’s duty

and performing his part constitutes one’s obligation.

In connection with the concept of duty and obligation, Rawls draws our

attention to another class of actions which he calls supererogatory actions, such as

acts of benevolence, mercy and self-sacrifice. “He feels that these are indeed

morally good actions but he holds that they are neither a duty nor an obligation.”71

However, when it is pointed out by a critic that it is a natural duty to bring about a

great good, Rawls argues that it is indeed a natural duty if it could be done

relatively with ease but it is not absolute as one is released from this duty when it

costs him too much. Hence, Rawls clearly specifies that such acts are not required

by ‘Justice As Fairness.

So, it appears that Rawls believes that “…a principle taken in isolation does

not express universal statement to establish sufficiently how one could act when

conditions of the antecedent are fulfilled. When we say something is our duty we

bear in our mind two phrases ; “other things equal” and “all things considered”

which means we have surveyed each relevant feature which are identified and

“tallied up” by the complete conception of right. Otherwise it refers to a prima

facie duty based on judgement by taking into account only certain principles and

not the entire scheme of reason.” 72

In the last analysis, it may be said that Rawlsian theory of justice however

has been subject to severe criticisms on the following grounds :

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 It is argued that Rawls cannot define the moral basis for justice as fairness

without some reference to a comprehensive theory of the good. In view of Patrick

Neal, Rawls’ theory of justice involves an unresolved tension between political and

metaphysical implications. 73

Although Amartya Sen acknowledges his indebtedness to Rawls for

illuminating his understanding on certain essential concepts of justice, yet he

thinks that Rawlsian theory contains a few difficulties which need fresh

investigation. These may be discussed as follows : First, Sen repudiates the theory

mainly on the ground that it concentrates primarily on “…getting the institutions

right and it is not directly focused on the actual societies that would ultimately

emerge. The nature of the society that would result from any given set of

institutions must of course, depend on non-institutional features such as actual

74
behavior of people and their social interactions.” In fact, Sen argues, “The mere

acceptance of some principles as forming the right ‘political conception of justice’

does not resolve this issue if the theory of justice sought has to have any kind of

applicability in guiding the choice of institutions in actual societies.”75

Secondly, Sen seems to be disturbed by the fact that ‘Justice as Fairness’ of

Rawls requires that people’s behaviour complies entirely with the demands of

institutions based on a unique set of two principles absolutely and exclusively

concerned with establishing just institutions. He argues, “There are genuinely

plural and sometimes conflicting general concerns that bear on our understanding

of justice. They need not differ in the convenient way – convenient for choice, that

is-that only one such set of principles really incorporates impartiality and fairness,

157
while the others do not. Many of them share features of being unbiased and

dispassionate, …”76

Sen is however skeptical whether the plurality of reasons for justice would

really allow one unique set of principles of justice. In this context he points out that

Rawls in one of his later writings himself recognized the fact that “The content of

public reason is given by a family of political conceptions of justice, and not by a

single one. There are many liberalisms and related views and therefore many forms

of public reason specified by a family of reasonable political conceptions. Of these,

justice as fairness, whatever its merits, is but one.”77

Thirdly, Sen further draws our attention to another feature of Rawls’s

theory which he finds problematic. In ‘Justice as Fairness’ while emphasizing the

issue of moral and political objectivity, Rawls argues that, “To say that a political

conviction is objective is to say that there are reasons specified by a reasonable and

mutually recognizable political conception (…) sufficient to convince all

reasonable persons that it is reasonable.”78 Here, Sen’s point of contention is,

“Indeed, we do not hear much from Rawls about how those who could be seem as

‘unreasonable persons’ come to terms with ideas of justice and how they would be

integrated into the social order.” 79

However, it is interesting to note that despite his recognition of the

difficulty Rawls seems to justify his theory by holding that “The best worked out

political conception cannot overcome these limits; nor are they defects, as they lie

in the nature of our practical reason. In political philosophy, as elsewhere, we must

rely on judgement as to what considerations are more or less significant and when

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in practice close the list of reasons. Even when judgement is unanimous we may

not be able to articulate our reasons any further … whether… a conception serves

its purpose can only be decided by how well it identifies the more relevant

considerations and helps us to balance them in the more important particular cases,

especially those involved in the constitutional essentials and the basic questions of

distributive justice. …”80

Fourthly, in one of his articles, Amartya Sen argues that although the

framework of political and social analysis initiated by John Rawls has had a

profound impact on the contemporary understanding of the nature of justice, a

serious departure from the ramifications of Rawlsian analysis will ultimately be

needed. He points out that it is not sufficient to address the case of social justice as

the relation applying primarily within nations or even as the relation between

nations. In his view, ideas of justice needs to be interpreted in terms of plural

affiliation cut across borders and it must not be confused with international

relations in general, or with demands of international equity in particular. Rawls

calls this Global equity. According to Sen, this idea expresses range of multiple

identities accessible to individuals like doctors, educators and social workers who

work without frontiers and socio-political belief. Thus, Sen insists that Global

equity is not the same as international equity. He explains that the former involves

practical reason at the global level and also has far-reaching implications on the

choice of actions of potential agents and most importantly, in such a conception,

justice is applicable to a corresponding diversity of socio-political realities,

independent of the idea of national frameworks which seeks to justify a minimal

code common to different communities and values across not merely within our

boundaries. 81

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 Fifthly, Sen admits that the ‘contractarian method of reasoning’ employed by

Rawls actually helped him to condemn the ‘Utilitarian tradition’ in determining the

principle of justice. Yet, Sen claims that Rawls should have explored other

approaches as well that are neither contractarian nor utilitarian. In this regard, he

particularly invokes the mechanism of ‘impartial spectator’ presented by Adam

Smith. In fact, Sen is confident that Smithian line of reasoning can take note of

certain issues which Rawls’s social contract’ approach fail to accommodate. Such

as, taking note of voices beyond membership of the contractarian group; allowing

incompleteness in social assessment, still providing guidance in important problems

of social justice etc.82

Finally, Amartya Sen’s idea of justice seeks to throw light upon a major

limitation in Rawls’s theory. It is basically an extension of Sen’s critique of Rawls’s

use of the social contract approach by virtue of which the pursuit of justice is a

concern for the members of a given society and it is not a global issue. In this

context, Sen argues that the functioning of a country’s basic institutions and the

major policies adopted surely have huge impact on the rest of the world beyond a

geographical border. Moreover, he feels that “… the factual presumptions that lie

behind particular ethical and political judgements can be reviewed with the help of

the experiences of other countries or societies.”83 Thus, according to Sen globally

sensitive questioning could yield a better assessment of the facts and values

regarding cases of injustice by widening the class of questions which are generally

raised from ‘parochial beliefs’.

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 NOTES AND REFERENCES

1. Rawls, John, Justice As Fairness: A Restatement, ed. by Erin Kelly, Harvard

University Press,2001, p. 6

2. Ibid, p.84

3. Rawls, John, “Justice as Fairness: Political not Metaphysical”, John Rawls:

Collected Papers, ed. by Samuel Freeman, O.U.P, 1999, pp. 388-389.

4. See A Restatement, p.11

5. Galston, William, A., Liberal Purposes : Goods, Virtues and Diversity in the

Liberal State, Cambridge University Press, 1991, p. 136

6. Hoy, Terry, “ Rawls’ Concept of Justice As Political : A Defense Against

Critics” , 20th WCP , p. 3

7. Rawls, J, A Theory of Justice, Harvard University Press, Cambridge, 1971,

p.111

8. Sen, Amartya, The Idea of Justice, Penguin Books, 2009, p.54.

9. See Restatement, pp.8-9

10. See ATheory of Justice, p.58

11. Ibid, p. 54

12. Ibid, p.10

13. See A Restatement, p.19

161
14. Ibid, pp. 18-19

15. Ibid, pp21-22

16. Rawls, “Justice as Fairness” in Rawls: Collected Papers ed. Samuel Freeman,

O.U.P, 1991, p. 57

17. Mackie, J, L, Ethics : Inventing Right and Wrong, Penguin books Ltd, 1977,

p. 173

18. See Freeman, S., p.59

19. See A Restatement, pp.89-91

20. See Collected Papers, f8 p.273

21. Ibid, p. 275

22. See A Restatement, p.58

23. See A Theory of Justice, p. 79

24. See A Restatement, p.58

25. See A Theory of Justice, p.386

26. See A Restatement, pp.42-43

27. Ibid, p. 47

28. Ibid, p.42

29. Ibid, p. 45

162
30. Ibid, pp.43-44

31. See A Theory of Justice, pp65-66

32. Ibid, p. 15

33. Ibid, p. 15

34. Ibid, p.19

35. Dworkin, Ronald, “ Justice and Rights”, Taking Rights Seriously, Universal

Law Publishing Co. Pvt. Ltd, Indian Reprint, 1996, p.151

36. Wolff, Robert, Understanding Rawls : A Reconstruction and Critique of A

Theory of Justice, Princeton University Press, 1977, p. 186

37. Rawls, J, A Theory of Justice, p.118

38. See A Restatement, p. 18

39. See Dworkin, p.158

40. See Rawls: Collected Papers, p. 96

41. Ibid, p111

42. Ibid, p. 71

43. Ibid, p. 158

44. See Terry Hoy’s article, p.1

45. Rawls, J, Political Liberalism, New York, Columbia University Press, 1993,

p. 147

163
46. See A Theory of Justice, p.301

47. See Freeman, S, ed. Collected Papers , pp.60-61

48. See A Restatement, 153

49. See A Theory of Justice, p 113

50. See A Restatement, p. 72

51. Rawls has taken this point from H.L.A Hart, “Are There Any Natural Rights?”

Philosophical Review, Vol. 64, 1955, p.185f

52. See Collected Papers ed. by Freeman, p.128

53. Ibid, p.117

54. Ibid, p.118

55. Ibid, p. 61

56. Ibid, pp. 62-63

57. Ibid, pp. 62-63

58. Ibid, pp. 63-64

59. Ibid, p.65

60. See A Theory of Justice, pp.176-178

61. Ibid, p. 179

62. Ibid, p. 96

164
63. Ibid, p.302

64. Ibid, p. 302

65. Ibid, 303

66. Ibid, p.98

67. Ibid, pp.98-99

68. Ibid, p. 99

69. Ibid, p. 298

70. Ibid, p.302

71. Ibid, p.100

72. Ibid, p.300

73. Neal, Patrick, “ Justice As Fairness : Political or Metaphysical”, Political

Theory, Sage Publication, 1990, Feb. Vol. 18 pp. 24- 50.

74. See, Sen’s The Idea of Justice, p.6

75. Ibid, p.68

76. Ibid, p. 57

77. Rawls, The Law of Peoples, Harvard University Press, 1999, pp.137-141

78. See Political Liberalism, pp. 110-119

79. See Sen’s The Idea of Justice, p.44f

165
80. See A Restatement, p.134

81. See Sen’s The Idea of Justice, pp.140-144

82. Ibid, p.70

83. Ibid. p.71

166