A Theory of Justice

Rawls states that “any liberty can be explained by a reference to three items: the agents who are free, the restrictions or limitations which they are free from and what it is they are free to do or not to do” (177).

A person has the liberty to do something when unconstrained to either do it or not to do it, and they are protected in this from interference by other persons and institutions. A distinction exists between regulating liberties and restricting liberties, and while equal liberties may be restricted, restrictions must adhere to criteria derived from equal liberty and the serial order of the two principles of justice: “A basic liberty covered by the first principle can be limited only for the sake of liberty itself” (179). Under the two principles of justice, the basic structure should establish a scheme of liberties that maximizes those of the least advantaged.

Freedom of conscience applies to freedom of religion and philosophy, among other interests. Persons in the original position do not view themselves as isolated individuals, but rather they have interests to protect and ties with persons of other generations, who make similar claims. Therefore, they must choose principles to protect their liberty-of-conscience and ensure equal protection of liberty-of-conscience for all, including future generations.

To ensure equal protection of liberty for all spanning generations, the principle of paternalism dictates persons in the original position “must choose for others as [they] have reason to believe they would choose for themselves if they were at the age of reason and deciding rationally,” and therefore must presume future generations would desire liberty. Further, the principles chosen must be final (183).

Rawls states that “[j]ustice as fairness provides, as we have now seen, strong arguments for an equal liberty of conscience” (186), adding that “[t]he state can favor no particular religion and no penalties or disabilities may be attached to any religions affiliation or lack thereof” (186). Liberty-of-conscience can be limited only by the common interest in public order and security. It is not within the government’s competence to decide the legitimacy of associations. Rather, the state is “the association consisting of equal citizens” that, rather than interfering with religious and philosophical doctrine, “regulates individuals’ pursuit of their moral and spiritual interests in accordance with principles to which they themselves would agree in an initial situation of equality” (186). The state may restrict liberty of conscience only when failing to do so would damage the public order the state is tasked with maintaining. This is embedded in the first of the two principles of justice, which guarantees equal liberty and dictates that “the only ground for denying the equal liberties is to avoid an even greater injustice, an even greater loss of liberty” (188). Rawls states that:

The parties in the constitutional convention, then, must choose a constitution that guarantees an equal liberty of conscience regulated solely by forms of argument generally accepted and limited only when such argument establishes a reasonably certain interference with the essentials of public order (189).

This section considers “whether justice requires the toleration of the intolerant, and if so under what conditions” (190). This question raises several issues. First, does an intolerant sect have any right to complain when not tolerated? Rawls writes:

[O]ne has no title to object to the conduct of others that is in accordance with principles one would use in similar circumstances to justify one’s actions toward them. A person’s right to complain is limited to violations of principles he acknowledges himself (190).

Second, one must ask, under what conditions may a tolerant sect not tolerate the intolerant? Rawls writes that  “[t]he problem of liberty is that of choosing a principle by which the claims [people] make on one another in the name of their religion are to be regulated” (191). It cannot be said that tolerant sects have the right to suppress intolerant sects purely because they are intolerant. Tolerant sects have the right to not tolerate intolerant sects only when they believe that such intolerance is mandatory for their security. Equal liberties should be preserved as far as liberty and freedom themselves are secure.

Third, when a tolerant sect has the right not to tolerate an intolerant sect, “for what ends should it be exercised” (190)? Rawls states:

[W]hile an intolerant sect does not itself have title to complain of intolerance, its freedom should be restricted only when the tolerant sincerely and with reason believe that their own security and that of the institutions of liberty are in danger (193).

Political justice is the justice of the constitution and consequently is a system of imperfect procedural justice. The constitution establishes a just procedure that satisfies the requirements of equal liberty and is framed in the way most likely to result in just and effective legislation.

When applied to political procedure, the principle of equal liberty is interpreted as the principle of equal participation, which applies to institutions and requires “that all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply” (194).

The standards and procedures are adopted in a constitutional convention in which all participants lack “the knowledge that is likely to prejudice the design of constituencies” (196). Additionally, the principle of participation requires all citizens have equal access to public office. Persons with similar abilities and motivations should have access to the same positions, regardless of their economic or social class: “[A] just constitution sets up a form of fair rivalry for political office and authority” (199). Otherwise, the economic and social system would undermine any existing political equality. Though only a fraction of a state’s citizenry will devote time to politics, this fraction should represent all sectors of society equally: “The many communities of interests and centers of political life will have their active members who look after their concerns” (200).

Rawls writes:

[E]qual political liberty is not solely a means. These freedoms strengthen men’s sense of their own worth, enlarge their intellectual and moral sensibilities, and lay the basis for a sense of duty and obligation upon which the stability of just institutions depends (206).

The extent of the principle of participation depends on the extent to which the mechanisms of constitutionalism restrict bare majority rule. Limits to the principle of participation should be applied equally to every citizen. Restrictions must be justified by establishing to the constitutional representative that the reduction in freedom of participation is outweighed by enhanced security and the increased extent of other liberties: “[T]he priority rule requires us to show that the inequality of right would be accepted by the less favored in return for the greater protection of their other liberties that results from this restriction” (203).

Rawls writes that “[t]he conception of formal justice, the regular and impartial administration of public rules, becomes rule of law when applied to the legal system” (206), and the rule of law protects the rights of the person. He adds: “A legal system is a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social cooperation” (207).

A legal system exercises final authority over the broad set of activities it regulates, secures fundamental interests, and “defines the basic structure within which the pursuit of all other activities takes place” (207). Injustice can exist when judges and others in authority misinterpret or fail to apply the appropriate rule, which can add prejudice, bias, and discrimination to the legal system. A legal system can be determined as fairer than another if it better fulfills the rule of law by more fully securing liberty and better organizing cooperative schemes.

The rule of law is guided by several precepts:

1) The precept that “ought implies can” dictates that the requirements of the rule of law should be those reasonably expected and with which compliance is possible; that laws are enacted in good faith; and that impossibility of performance should be a recognized legal defense;

2) The precept that similar cases be treated similarly establishes that citizens must have knowledge that their justice will be the same as anyone else’s in their society, and such knowledge is required for them to plan their actions in accordance with the laws of society;

3) The precept that there cannot be an offense without a law:

demands that laws be known and expressly promulgated, that their meaning be clearly defined, that statutes be general both in statement and intent and not be used as a way of harming particular individuals who may be expressly named, that at least the more severe offenses be strictly construed, and that penal laws should not be retroactive to the disadvantage of those to whom they apply (209).

The precepts of natural justice are guidelines to preserve the integrity of the judicial process. These include rules of court and evidence. Rawls writes that “[b]y enforcing a public system of penalties [,] government removes the grounds for thinking that others are not complying with the rules” (211).

A common understanding of justice as fairness is responsible for constitutional democracy. Liberties are well-constructed when derived from mutually agreed-upon principles held by similarly-situated persons: “[T]he precedence of liberty means that liberty can be restricted only for the sake of liberty itself” (214).

Restriction of liberty may be justified in two circumstances. First, a restriction can “derive from natural limitations and accidents of human life, or from historical and social contingencies” (215). When this occurs, a just method of addressing limitations must be devised. Second, injustice may presently exist in social arrangements, or in an individual’s conduct. In this situation, persons must determine the just way to respond to injustice.

The two principles of justice now read:

“First Principle: Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

“Priority Rule: The Principles of justice are to be ranked in lexical order and therefore liberty can be restricted only for the sake of liberty. There are two cases: (a) a less extensive liberty must strengthen the total system of liberty shared by all, and (b) a less than equal liberty must be acceptable to those citizens with the lesser liberty” (220).

Justice as fairness is derived from Kant’s notion of autonomy. In Kant’s notion of autonomy, he establishes moral principles as the object of rational choice because “they define the moral law that [people] can rationally will to govern their conduct in an ethical commonwealth” (221). Consequently, principles must be both acceptable to all and be made public.

Kant’s notion also establishes that such principles must be agreed to by free and rational beings; Rawls writes that “[t]he description of the original position is an attempt to interpret this conception” (221).

Similarly, the premise of mutual disinterest connects with the Kantian idea of autonomy, which held that a person acts autonomously “when the principles of his action are chosen by him as the most adequate possible expression of his nature as a free and equal rational being” (222). The original position, then, is “a procedural interpretation of Kant’s conception of autonomy and the categorical imperative within the framework of an empirical theory” (226).