Justice in American Thought

As Gordon Wood argues, the pluralism so dear to the anti-federalists triumphed in the short run and became the dominant conception of politics in the American society. It was in the context of this pluralism that John Rawls developed and polished what turned out to be the most influential theory of justice in the intellectual vistas of American society during the last three decades of the twentieth century.

With the publication of A Theory of Justice (1971), John Rawls set out to establish the institutional framework and the moral principles of a well-ordered society conceived in perpetuity. He did this by constructing an imaginary scenario that he called the "original position" and designing the parties who were to deliberate about the agreement that would rule their society. The arguments were then premised on the social-contract tradition to the extent that the end of deliberation was to reach a binding agreement for present and future generations. In the first version of his theory, Rawls saw the agreement on justice as a paradigm that would apply to all societies. In the original position, "a veil of ignorance" covers the parties, which means that they lack knowledge about their gender, race, social status, philosophical beliefs, and religious beliefs. In other words, they are selves that, placed in a context of fairness, would arrive at a fair agreement. This is why Rawls calls his theory "justice as fairness." The assumption is that the lack of knowledge about personal and social features would lead the parties to advocate an institutional arrangement that would benefit all of them. The original position brings forth a basic agreement on two principles of justice: the principle of equal liberties and the difference principle. In Justice as Fairness. A Restatement (2001), Rawls offers his last articulation of these principles:

1. Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and
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 to the greatest benefit of the least-advantaged members of society (the difference principle). (pp. 42–43)

The principle of equal liberties protects constitutional essentials that will be settled once and for all. There is no need to deliberate about them. The difference principle sets a goal, which is to maximize the long-term expectations of the least advantaged members of society over the long run. This maximization, Rawls believes, is achieved by providing a social minimum to the disadvantaged. It is worth mentioning that the right of property does not count as one of the constitutional essentials. Rawls even defends the creation of a distributive branch with the responsibility of watching over society to rein in excessive inequalities, though what counts as excessive is not specified.

In a second version of his theory, Rawls abandoned the quest of universality and declared that the parties were representatives of democratic citizens; namely, historical members of a particular society. His theory depended not on a metaphysical view of persons as empty shadows but on the political culture of the United States. In Justice as Fairness: A Restatement, Rawls says that his theory takes into account three kinds of contingencies: social class, "native endowments," and "good or ill fortune." In light of this political culture, Rawls believes, there are two intuitive ideas that will justify the choice of his two principles of justice. The first idea stands for the moral equality of all citizens, while the second defends a system of fair cooperation. Bound together, these two intuitive ideas are seen as already embedded in the political vocabulary and practices of a constitutional democracy. More importantly, they are completely free of what Rawls calls "comprehensive moral doctrines," which are doctrines that seek to provide all or partially encompassing answers to the deepest questions surrounding the meaning, if any, of life and the human good.

In the three decades after the publication of Theory, Rawls expanded and modified his arguments in several areas, while leaving intact its basic tenets. The most important upshot of his reflections was the articulation of what he called "political liberalism," a liberalism that is bereft of questions of truth, the human good, and any transcendental realm; that is, it eschews any form of comprehensive doctrines. These doctrines are seen as belonging to the private sphere, and citizens should not use them in deliberations about justice. Furthermore, justice is expected to supersede the injunctions of comprehensive doctrines even in the private domain.

Under the aegis of political liberalism, the emphasis is not so much on distributive justice as it is on the quest of an overlapping consensus embracing all reasonable doctrines that may flourish in a constitutional democracy. Political liberalism is deeply aware of the fact of pluralism in modern times and the impossibility of having a universal agreement on a single conception of the human good. Hence the need of fair principles of justice to achieve the overlapping consensus Rawls seeks to undergird stability. Rawls assumes that "justice as fairness" is capable of commanding the kind of support a theory of justice needs to provide stability. He further assumes that, in a well-ordered society, citizens see themselves as fully cooperating members of society over their whole life. The terms "reasonable" and "fully cooperating" mean that people will see the two principles of justice as moral principles, abide by their outcomes, and use them in choosing and revising their conceptions of the human good.

Rawls's theory is vulnerable to a question that "justice as fairness" leaves unanswered: how could the second principle maximize people's long-term expectations when all Rawls expects from the state is the allocation of a social minimum? This question leads to a problem that haunted the Rawlsian view. In both Theory and Political Liberalism Rawls accepts that his well-ordered society is compatible with the existence of large economic inequalities. As long as the constitutional essentials are preserved and the difference principle is in operation, these inequalities will not tarnish the moral character of a Rawlsian society. Though the issue of large inequalities is present in Justice as Fairness: A Restatement, Rawls introduces the following modification. Instead of writing about maximizing the long-term expectations of the least advantaged over the long run, he writes about "an appropriate interval of time" in which the expectations mentioned above should be maximized.

Other theories of justice.

Though John Rawls's theory of justice set the context for discussions of justice in the last three decades of the twentieth century, it was not the only theory advanced. Ronald Dworkin developed his own theory that he calls "Equality of Resources." This theory insists that, without the need of resorting to an original position, people ought to be aware of the true cost of their life-plans for other people, and to be willing to redesign these life-plans when they go beyond the fair share of resources available to all citizens. Unfortunately, Dworkin is not clear about the criteria and the institutions that will decide what a "fair share" of resources is and when the individual is taking more than what this "fair share" demands. Iris Marion Young brought to the fore an alternative conception of justice that relies not on an abstract equality but on the recognition that different groups have different needs and, accordingly, may require unequal allocations of public resources. At first sight, this view seems to reject the universal understanding of justice that imbued the Rawlsian philosophy, but, ultimately, Young advocates general rules of justice to regulate the competing interests of a group-based politics.