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- Essay Question- What conceptual and empirical problems are posed by Rawls

construction of the original position?

- Candidate Number- R20395
- Module Code- 7SSPP008
- Word Count- 1,481

I will analyse a number of problems that the original position poses. Firstly the knowledge
conditions that are highlighted by the original position are questionable and are worthy of
further analysis. Secondly I shall highlight problems with the minimax principle. And I will
end by looking at the basis of the original position; the fundamental principle of Rawls deep
The fundamental concept of Rawlss deep theory is the abstract right to equal concern and
respect (Dworkin, 1989, p. 51). The original position is not a defining principle or predicate,
instead it is a device used for justification of Rawls fundamental principle and his deeper
theory, including the two principles of justice; the priority of liberty and the difference
principle (Arrow, p.246). The original position can be seen as a half-way point in Rawlss
deeper political theory and this deeper theory argues for the 2 principles of Justice through,
not from, the original position (Dworkin, 1989). In other words, the abstract right to equality
is not a creation of the original position, but a condition for admission to it (Dworkin, 1989,
p. 51). I shall briefly outline the original position before highlighting its problems. Behind the
veil of ignorance the parties can be seen as pre-moral in the sense that they are not
particular individuals who know who they will actually be; they are deprived of all
knowledge of their social, historical and personal circumstances and features (Barber, 1989).
It dismisses all knowledge of those contingencies which sets men at odds and allows them to
be guided by their prejudices (Rawls, 1971, p. 17). The original position blanks out all
information that would make it possible to mould principles that would further an
individuals actual self-interest. This is because the principles are agreed to in an initial
situation that is fair (Rawls, 1971, p.11) since the individuals are given their right to equal
respect and concern (Dworkin, 1989, p. 52). However, the original parties are not just behind
the veil so they cannot bargain for their own self-interested principles. This could be
specified without the need for the veil but Rawls is not just sealing of self-interest (Barber,
1989). The veil of ignorance is needed to show that the parties in the original position would
choose their principles conservatively. If one knew ones attributes but had limits set on what
he could relatively argue there is a possibility that he would not decide conservatively
because he knows his attributes. The veil is needed not just to make sure fair principles are
picked, but that they are picked in a specific way; in a conservative way because this would
be the only rational choice, in their ignorance, for self-interested men to make (Dworkin,
1989, p. 21). To summarize, the fundamental principle of equality defines the conditions of
the original positions. The original position and the veil of ignorance then justify how the 2
principles of Justice are decided upon.
Although the Original Position is a hypothetical contractrian device it still needs to be
plausible; at least hypothetically plausible. Rawls highlights that behind the veil of ignorance
parties have certain knowledge of general facts about human society Indeed, the parties
are presumed to know whatever general facts affect the choice of the principles of justice,
however they do not know the particular circumstances of their own society. As Barber
(1989) puts it, men, in the original position, are stripped of all contingent particularity to the
point where their nature only consists of rationality and generalized interest (Barber, 1989,
p. 294). Men do not possess particular, substantive ends but a common interest towards
primary social goods. However it is uncertain whether, with no particularity present, that
interest is intelligible at all on the individual level (Barber, 1989). In other words, it could be
that the particular combination of knowledge and ignorance required by Rawlss
construction is in principle impossible (Wolff, 1977, p. 122). For example, Individuals in the
original position have knowledge of political affairs and the principles of economic theory;
they know the basis of social organization and the laws of human psychology (Rawls, 1971,
p. 119). But to state that it is possible to know general rules of human psychology, without
knowing our own particular, substantive means is not in conjunction with a number of
psychological traditions, such as Psychoanalysis (Wolff, 1977). In other words, the veil of
ignorance assigns an impersonal and trans-temporal character to theories such as
psychology where it is at least questionable whether an individual could have any knowledge
of that tradition without any particular knowledge of himself (Wolff, 1977). Society does not
have, like the natural sciences, an objective and cognitive position. Instead social knowledge
is historical, self-reflective, constitutive and expressive (Wolff, 1977, p.127). As Wolff
asserts, society is a collective human product; our knowledge of society is dependent upon
us being in it as our particular selves (Wolff, 1977, p.127). One criticism of my argument is
that the original position has a hypothetical nature of, however, this does not mean the bridge
between psychology and the original position is irrelevant, after all, Rawls does assign a kind
of maximin psychology to individuals in the original position (Barber, 1989).
Another problem concerns the nature of decision-making that is justified by the original
position; the maximin principle. I shall focus primarily on the psychological disposition that
Rawls attributes to individuals in the Original Position. The maximin principle allows
Rawls to show how the principles would be picked behind the veil of ignorance. The rule
tells us to rank alternatives by their worst possible outcomes (Rawls, 1971, p. 152-3). For
Rawls when the individuals are to decide on principles they must adopt a conservative
attitude (Rawls, 1971, p.153). This is because the individuals are trying to maintain the most
amount of possible liberty for everyone while also guaranteeing that the inequalities will
benefit the least advantaged members of society (Barber, 1989). However Rawls makes a
very big leap from the situation of the original position, where men have no knowledge of
their independent circumstances, to stating that doubt in the original position will produce in
them a rational preference for minimizing risk (Barber, 1989, p. 297). However the two
principles in the original position do not determine the risk aversion of the individual (this is
why Rawls developed the maximin principle) and I think it is doubtful to make the
assumption that all individuals will be the least risk averse as possible. The rationality of
which solution (whether it be more or less risk averse) will surely depend upon what is
shrouded by the veil of ignorance and it is no less rational, but of a different temperament, to
follow a moderate risk strategy. (with the) possibility of somewhat greater gains (Barber,
1989, p. 297). In other words, the veil of ignorance and original position try to justify the
principles chosen but they have no bearing on how partial an individual is to taking risks.
Barber points out, to dismiss an argument that shows an individual, in the original position, is
to be more risk averse then one must also dismiss Rawls maximin argument (Barber, 1989).

The original position is constructed in a way that it relies on Rawls fundamental principle of
equality as highlighted above. The notion that everyone has the abstract right to equal
concern and respect is the fundamental assumption that creates the laws to which the
original position is built to justify the two principles that are conceived in it (Dworkin, 1989,
p. 51). This natural right is based on Rawls trying to balance intuition with principles through
reflective equilibrium, however, it means that the original position and Justice as Fairness is
built on an intuitive notion (Dworkin, 1989, p.51). In conjunction with my critique of
society and social knowledge as historic and changing; it is the sum total of the sentiments,
expectations, habits, patterns of interactions, and beliefs of the men and women who make it
up (Wolff, 1977, p. 123). This intuitive notion that Rawls theory is based upon is a belief
that is in itself subject to the critique of society I have just given. I find it uneasy that the
fundamental principle is used to construct the original position and therefore cannot be
critiqued or criticized by it; it is a principle that is taken as given and natural.
In conclusion we have established that the original position is a framework used to show the
moral importance of the fundamental principle of Rawls deep theory; the abstract right to
equal concern and respect (Dworkin, 1989, p. 51). The way it is constructed creates a
number of epistemological problems including the questionable differentiation between
actual and particular knowledge. There has also been a problem concerning the non-
exclusivity of the maximin principle.


- Arrow, K.J. (1973) Some Ordinalist-Utilitarian Notes on Rawls's Theory of Justice.
The Journal of Philosophy, 70 (9), pp. 245-263

- Barber, B. (1989) Justifying Justice: Problems of Psychology, Politics, and
Measurement in Rawls. In: Daniels, N. Reading Rawls: Critical Studies on Rawls A
Theory of Justice. California: Stanford University Press

- Daniels, N. (1989) Reading Rawls: Critical Studies on Rawls A Theory of Justice.
California: Stanford University Press.

- Dworkin, R. (1989) The Original Position. In: Daniels, N. Reading Rawls: Critical
Studies on Rawls A Theory of Justice. California: Stanford University Press.

- Mandell, J. (2009) Rawls A Theory of Justice: An Introduction. Cambridge:
Cambridge University Press.

- Rawls, J. (1999) A Theory of Justice: Revised Second Edition. Oxford: Oxford
University Press.

- Wolff, R.B. (1977) Understanding Rawls: A Reconstruction and Critique of A Theory
of Justice. Princeton: Princeton University Press.