John Rawls

Justice as Fairness: Liberalism or Communitarianism?

J.W. Bulger, Ph.D.

I. The Overview:
Rawls in his books, A Theory of Justice1, and Political Liberalism2 puts forth a hypothetical scenario in
which he presupposes that there are individuals who live within a pluralistic, free and equal, democratic,
constitutional society. He further presupposes
that all the individuals in this hypothetical so- Free and Equal, Pluralistic, Democratic,
ciety are persons, that are rational and reasona- Constitutional Society
ble, (rational meaning the ability to form, re-
ORIGINAL POSITION
vise, or pursue ones good, i.e., ones pur- Veil
pose and meaning of life, and reasonable {
Rational: Form, revise, or pursue ones good
Reasonable: Get along with others
meaning having the ability to get along with Of
TWO PRINCIPLES OF JUSTICE
others). Rawls then presents us with the task of
1. Basic rights and liberties-maximum
determining what principles of justice should be Ignor-
2. Fair distribution-maximin
adopted for the citizens of this society if we
were to be their representatives. To make sure ance POLITICAL FRAMEWORK
that we do this fairly, Rawls puts us behind a
A. Constitutional Stage
veil of ignorance, called the original position,
in which all we know is that the individual(s) B. Legislative Stage
we represent is rational and reasonable as above C. Judicial Stage (Application of the above)
defined. Our task is to make sure our citizen(s)
has those basic goods that would be necessary
for the continuation or development of their rational and reasonable states.
Rawls argues that from this original position, it would be logically consistent to construct principles of jus-
tice that would ensure those necessary basic goods. Rawls comes up with the following Two Principles of
Justice, which are in hierarchical order. (Hierarchical order means two things. First, it means that the first
principle of justice must be established before establishing the second principle of justice. Secondly, it
means that the first principle of justice can never be violated or infringed on by the second principle of jus-
tice, or anything else lower in hierarchy). The Two Principles of Justice are summarily given as follows: 1.
The maximization of basic rights and liberties through the process of reflective-equilibrium3, and 2. If there
is going to be any unequal distribution it must benefit all, or at minimum the least well off, i.e., maximiza-
tion of the minimal conditionmaximin. These two principles of justice can be interpreted as being the pri-
mary and secondary mid-level principles respectively. (It should be noted that Rawls never claims to have
any type of mid-level principles. This is an interpretation of Rawlss work that is meant to explain and/or
clarify how he does in fact construct his political framework).
The first principle of justice comes about by a.) looking at what rights and liberties have historically worked
well for democracy, b.) intuitions4 and c.) trial and error. These rights and liberties are then justified and
maximized through a process of reflective-equilibriuma back and forth process between theory, mid-level
principles, intuitions, and practical application. Through this process of reflective-equilibrium, our specific
rights and liberties become established and mutually constrain each other.

1
John Rawls, A Theory of Justice, (Cambridge: Belknap Press of Harvard University Press, 1971)
2
John Rawls, Political Liberalism, (New York: Columbia University Press, 1993)
3
Rawls is the author of the term reflective-equilibrium.
4
Rawls actually talks about lucky guesses which is a type of intuition.
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The second principle of justice is a distributive principle that utilizes the maximin principle, i.e., maximizes
or improves the worse-off condition. In doing this, Rawls is not a pure egalitarian in that he does allow
unequal distributions of social goods as long as it benefits all, especially the least well off. However, be-
cause of the hierarchical order, we cannot violate any of the basic rights or liberties under the first principle
of justice when implementing the distributive principles of the second principle of justice.
Once the two primary mid-level principles of justice are established, Rawls believes that we can now logi-
cally construct a just political framework that would consist of the Constitutional Stage, the Legislative
Stage, and the Judicial Stage. The Constitutional Stage would consist of the broad weighing and balancing,
and specification, of the basic rights and liberties of the first principle of justice. The Legislative Stage is the
broad weighing and balancing, and specification, of the distributive aspects of the second principle of jus-
tice. Lastly the Judicial Stage would apply all of the above to actual specific situations. All steps are in hier-
archical order and the veil of ignorance gets thinner as one goes from the constitutional stage to the legisla-
tive stage and finally to the judicial stage where there is no veil. This thinning of the veil of ignorance is
essential for us to be able to deal justly with situations that progressively become increasingly specific. The
hierarchical ordering is a protective mechanism that makes sure that the basic rights and liberties, that are
the goods necessary in order to develop into rational and reasonable citizens, are never infringed upon.
These three stages can be thought of as three tiers of mid-level principles. Like our mid-level principles,
Rawls recognizes that there will be amendments, clarifications and additions that will come about through
the process of reflective-equilibrium.
Rawls begins his political framework with certain presuppositions, and constructs the mid-level principles
that consist of the two principles of justice, constitution stage, legislative stage, and a judicial stage. It is also
important to note that Rawlss political framework is not the framework but only one of many possible
frameworks that can be constructed.
II. A Closer Look At Rawls Rational:
In this hypothetical scenario we are assuming that our citizen whom we represent is ideally rational and rea-
sonable. In justice as fairness the reasonable and the rational are taken as two distinct and independent
basic ideas. They are distinct in that there is no thought of deriving one from the other; in particular, there
is no thought of deriving the reasonable from the rational. (PL p.51) Secondly, These conditions [the ra-
tional and the reasonable] do not impose the unrealistic requirement that all citizens affirm the same com-
prehensive doctrine, but only, as in political liberalism, the same public conception of justice. (PL p. 39)
Reasonable persons, we say, are not moved by the general good as such but desire for its own sake a social
world in which they, as free and equal, can cooperate with others on terms all can accept. They insist that
reciprocity should hold within that world so that each benefits along with others. (PL p. 50) The first basic
aspect of the reasonable, then, is the willingness to propose fair terms of cooperation and to abide by them
provided others do. The second basic aspect, as I review now, is the willingness to recognize the burdens of
judgment and to accept their consequences for the use of public reason in directing the legitimate exercise of
political power in a constitutional regime. (PL p.54) Being reasonable is not an epistemological idea
(though it has epistemological elements). Rather, it is part of a political ideal of democratic citizenship that
includes the idea of public reason. The content of this ideal includes what free and equal citizens as reason-
able can require of each other with respect to their reasonable comprehensive views. (PL p. 62) Public
reason is characteristic of a democratic people: it is the reason of its citizens, of those sharing the status of
equal citizenship. The subject of their reason is the good of the public. Public reason, then, is public in
three ways: as the reason of citizens as such, its the reason of the public; its subject is the good of the pub-
lic and matters of fundamental justice; and its nature and content is public, being given by the ideals and
principles expressed by societys conception of political justice, and conducted open to view on that basis.
(PL p.213) Social cooperation is always for mutual benefit and this implies that it involves two elements:
the first is a shared notion of fair terms of cooperation, which each participant may reasonably be expected
to accept, provided that everyone else likewise accepts them. Fair terms of cooperation articulate an idea of
reciprocity and mutuality: all who cooperate must benefit, or share in common burdens, in some appropri-
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ate fashion judged by a suitable benchmark of comparison. This element in social cooperation I call the
reasonable. Whereas the notion of fair terms of cooperation is shared, participants conceptions of their
own rational advantage in general differ. (PL p. 300-301). These two powers [rational and reasonable]
are the capacity for a sense of right and justice (the capacity to honor fair terms of cooperation and thus to
be reasonable), and the capacity for conception of the good (and thus to be rational). In greater detail, the
capacity for a sense of justice is the capacity to understand, to apply, and normally to be moved by an effec-
tive desire to act from (and not merely in accordance with) the principles of justice as the fair terms of so-
cial cooperation. The capacity for a conception of the good is the capacity to form, to revise, and rationally
to pursue such a conception, that is, a conception of what we regard for us as a worthwhile human life. (PL
p. 302)
III. Support For Communal Ideals and Marxist Economics:
A. If, in this hypothetical scenario, we assume that citizens are in fact ideally rational and, most important-
ly, reasonable then I fail to see the necessity of the development of formalized basic rights and liberties, i.e.,
the foundation of the libertarian society. I have arrived at this conclusion because of the fact that what makes
a libertarian theory libertarian is the priority given to basic rights and liberties as implemented through a
process of procedural justice. If, however, our society is composed of ideally reasonable individuals, in other
words each citizen is ideally able and willing to get along with others, then there doesnt seem to be a need
to formulate what those rights and liberties are.
Think in terms of an ideal family relationship. The focus of such a relationship is not on basic rights and lib-
erties, rather the focus is on the good of the family and its members. Rights and liberties are the necessary
precautionary elements within relationships of unreasonable individuals. As individuals become more and
more reasonable there is less and less need to establish basic rights and liberties. I agree that in a society
composed of ideally reasonable persons that they could agree on basic rights and liberties, it is just that I fail
to see the necessity or even the desire of doing so in such a society. My question is, in such a society
wouldnt we just forget about rights and liberties and focus instead on the relational components?
If the above is true, then Rawls conception of justice is not based on ideally reasonable citizens but rather
on the practical political conception of citizens being less than reasonable. If our ideal citizens are in fact
reasonable, then communal values, not state protections of individual moral and political rights, are best
suited to achieve their rational good. Some of these communal values would be things such as conven-
tions, tradition, and loyalties, i.e. relationships.
B. The second series of questions focus on political economics.
If in compliance with the distribution principle we are to maximize the minimal position then what effect
would the maximin principle have on employee and employer relationships? Once again, think of yourself
as being in an ideal family which is composed of ideally reasonable individuals. Would you distribute
goods using a maximin principle? If a member broke its leg would you distribute more goods to that
individual? Of course you would. You would distribute according to need. In accomplishing tasks that effect
the familys good would you contribute according to your ability? Of course you would. You would contrib-
ute according to ability. From each according to their ability, to each according to need.
If the above is true, then Rawls conception of justice would in fact support not a libertarian conception of
social economic distribution, rather it seems to better support a communitarian or socialistic conception. In
other words, Rawls liberal political framework only comes about because of the initial presupposition of the
free and equal, pluralistic, democratic, constitutional society. Rawls entire framework seems to be the result
of the informal fallacy of begging the question. Begging the question is the fallacy in which the conclusion
of an argument is stated or assumed in one of the premisses.
If we do come to the conclusion that such a society would distribute goods from each according to their
ability and to each according to their need, then how would that effect the common-law doctrine of Em-
ployment At WillEAW? It would seem that the entire capitalistic framework that we are so used to would

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need to be categorically abolished. Distribution of moneys and responsibility would need to be distributed
by ability and need.