Justice As Fairness

Source : http://www.legalserviceindia.com
Author : Ranjini2
Published on : September 05, 2017

Ranjini2's Profile and details
Ranjini Ghosh is a student of class 11 in Gopi Birla Memorial School , Mumbai. She takes keen interest in the philosophy of law , human rights and theories of justice as applied in real life .

Justice As Fairness

The name of John Rawls has been associated with his most famous book A Theory of Justice (1971) . His views have laid the foundation for any discussion on the principles of justice.  The principles postulated by Rawls have also been the subject of extensive study and disagreements.

The main idea given by Rawls is that justice is to  be seen in terms of fairness. The idea of fairness is in a way prior to the principles of justice given by him. The essence of fairness is our evaluations of principles of justice  which should be free from personal biases or our respective interests and personal  prejudices . Rawls bases his idea of impartiality or fairness on his concept  of “ original position” . It is a hypothetical experiment where all those who participate in formulating principles of justice should do so without their personal prejudices , interests etc. That is , they have to decide on the appropriate principles of justice from a position where each person does not know who he or she is , what is their ethnicity , gender , class or any other form of identity which has the effect of introducing a bias in their judgement . Because if  a person is aware his or her skin color , social status , strata etc. then such a person when deciding on the appropriate principle of justice would tend to formulate only such a principle that favors his position or interest. It is only when we are absolutely ignorant of our personal interest that we can decide on a principle which will  be to our benefit even if we are placed in the most disadvantageous position . For example a person who has been locked up in a cell without any knowledge of personal identity will only think of freedom first . So that is the first principle for him  . It is in this way that Rawls wants us to think of principles about justice where such principles are fair to all and in particular to the worst off in society . This is only possible when such a decision is taken under a “ veil of ignorance “. The principles of justice will determine the social institutions in a society to carry out the task of justice . Rawls believes that even in a society where people are deeply divided on ideologies and personal interests , a reasonable conception of justice based on appropriate principles can be formulated . Therefore in the Rawlsian system the choice of institutions designed to implement these fair principles of justice is also important . In his scheme of justice the first step is the choice of basic principles of justice . The second step is the constitutional stage in which actual institutions are chosen .

Rawlsian Principles

Rawls argues that principles of justice will be arrived at through consensus by people in the original position and under veil of ignorance . These are:
a. Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all . 
b. Social and economic inequalities are to satisfy to conditions . First , they must be attached to offices and positions open to all under conditions of fair equality of opportunity ; and second , they must be to the greatest benefit of the least advantaged members of society.

In these principles it will be noted , as Amartya Sen has pointed out ,that there is a priority of liberty for  each person over the principle of equality . Therefore liberties of people cannot be violated on the argument that there will be better redistribution of income and wealth .The second principle concerns institutional arrangements which ensures that there are equal opportunities of public employment etc. available to everybody . The second part of the second principle is the famous “ Difference Principle “ . It is concerned with distributive equity and the aim here is that the worst off people in society should be made as well off as possible . Rawls says that the equity principle involves distribution of “primary goods” like rights , liberties , opportunities of income and wealth . Rawls defends inequalities in society so long as such inequalities help the worst off in society.

Transcendental Institutionalism

In philosophy there has been a divergence of opinion about justice . Thinkers like Hobbes and Rousseau and followed by Immanuel Kant emphasized the role of institutional arrangements in a society to ensure justice . Amartya Sen calls this “transcendental institutionalism” . This view identifies a conception of perfect justice rather than relative comparisons of justice to injustice. Their main concern has been to identify the nature of the just and not to settle for  a practical view of societies which may not be perfectly just but less unjust than others. This school of thought has also concentrated on just  institutions instead of how the actual institutions work in society . That is , they have ignored the actual behavior of people in such institutions . In essence , this view has been concerned with a transcendental identification of just institutions. In contrast to this Amartya Sen has focused on a realization-focused understanding of justice .  This view stresses that it is the actual behavior of people which determines outcomes of justice rather than ideal behavior and ideal institutions. Sen says that the right way about asking questions about justice is to ask how justice could be advanced rather than asking what would be perfectly just institutions .  Rawls does not tell us how  a particular set of institutions could be set up which will implement his principles of justice . There are competing claims of which is the best principle of distribution for ensuring justice . Amartya Sen in his book The Idea of Justice (2009) gives an example of three children and a flute. Child A claims the flute  on the ground that she is the only one who knows how to play it  . Child B demands a flute on the ground that he is so poor that he has no toys. Child C points out that it is she who has made the flute with her labor . Egalitarians would prefer child B , libertarians would support child C and the utilitarian would defend the claim of child A on the ground that her pleasure will be more since she can play it . In this example one can see competing conceptions of distributional justice and the problems associated in formulating a just scheme of equitable distribution. Sen also says that if a theory of justice is to guide  choice of policies and institutions then the identification of fully just social arrangements is neither necessary nor sufficient . He gives an example to explain this that if we are trying to choose between a Picasso and a Dali there is no point in saying that the ideal picture is Mona Lisa . Therefore it is not necessary to talk about the greatest and most perfect picture in the world and neither is it sufficient to know that Mona Lisa is the perfect picture when the choice is between a Dali and a Picasso. 

Classical Indian Conception
Amartya Sen in his book has pointed out that the distinction between an institutional arrangement  focused view and a realization focused view of justice can also be found in the Sanskrit literature on ethics and jurisprudence . In Sanskrit the word niti stands for organizational propriety and behavioral correctness . They word nyaya stands for realized justice . In Sanskrit literature there is a concept matsyanyaya, justice in the world of fish which means bigger fish eat little fish  . What is stressed in this concept is that it is not only institutions or arrangements which are important but how actual justice is realized . The principle should be to avoid matsyanyaya . Sen has emphasized the role of outcomes in justice as more important than mere institutional arrangements . The debate on institutions versus outcomes has often been interpreted as the debate between deontology versus consequentialism . We may recall that Immanuel Kant had emphasized a duty based approach to ethics (deontological). As opposed to this is the consequentialist view which is concerned with the outcomes or consequences .In the Indian epic Mahabharata , the famous dialogue between Krishna and Arjun can be seen in these terms .Krishna urges Arjun to do his duty and not worry about the consequences of the war but Arjun’s concerns about the effects of war are justified in view of the consequences of devastation it entails . Therefore the actual outcomes cannot be ignored . In the Rawlsian theory of “justice as fairness”, the idea of fairness relates to persons where as his principles of justice apply to choice over institutions .

Robert Nozick

In his book , Anarchy , State and Utopia (1974) Nozick rejects the Rawlsian theory of justice on the ground that it is a patterned conception of justice . He argues that there is nothing wrong with economic inequality and also rejects the idea that a just distribution consists of a pattern such as equal income or equal provision of basic needs. What is important for him is to see how this unequal distribution of income or wealth came about . He argued that distributive justice should be only concerned with ensuring whether there is justice in the initial holding of wealth and it’s transfer . This means we should only check if the money or wealth a rich person has was legitimately his own in the first place , or if he made his money through free exchanges in the market or from voluntary gifts received by him . If the answers to these are in the affirmative then the State has no role in interfering to make a just distribution of his wealth . Nozick has given an example of redistribution in the case of the famous basketball player Wilt Chamberlain . Michael Sandel in his book Justice (2009) gives  a similar example of Michael Jordan . Whoever wants to see him play deposits five dollars in a box each time they buy a ticket . The proceeds go to Jordan . Hence at the end of the season he accumulates huge sum  of money . So at this stage the initial just distribution of people depositing money for him no longer obtains . Jordan has more money and others have less . But his money now has only come from people’s money which they deposited voluntarily . There is nothing apparently wrong with this kind of situation . Nozick says that the Rawlsian conception of justice posits that this income inequality is unjust and so an intervention is required to redistribute this income from Jordan to other people . If he is now taxed to support redistribution programs for the poor that violates his rights since he has earned that money out of people’s free choices . 

Philosopher G.A. Cohen says that the theory of justice given by Rawls goes against the concept of self-ownership  of property . He gives the example of an astronaut who by chance lands on an uninhabited planet . Since the astronaut is the first person to arrive there she claims it as her property and in Nozick’s view this would be a just acquisition. Now we imagine a second astronaut lands there but he has nothing for him to eat sleep or drink since everything belongs to the first astronaut who has appropriated it . Unless the first gives something to the second there will be no option left for the second one but to become a slave .  Cohen says that a similar situation obtains on the earth as well since most resources on the earth belong to a small property owning minority . Nozick says that by the logic of Rawls, any system of private property is unjust and so there must be redistribution . Cohen says that by this logic capitalism is unjust . He further says that also means that any idea of self – ownership is unjust like talent . He gives an example that if the state by a lottery today decides to donate my one eye to someone blind it would not be unjust since I have no claim over my eye . Nozick says that a Rawlsian state would exactly do this to implement his second principle . But Cohen says that this would be an interference in a person’s liberty which according to Rawls is the first principle.

 Rawls’ difference principle states that it is possible to correct for the unequal distribution of talents . He says that gifted people should be encouraged to develop and exercise their talents but with the understanding that whatever incomes they earn from the market belong to the community as a whole . It should be shared with people who do not have such talent. It regards the distribution of natural talents as a common asset . The naturally advantaged are not to gain merely because they are gifted but only to cover the cost of training and education and for using their endowments in ways that help the less fortunate .

Communitarian Critics
The communitarians point out that the idea of an unbiased rational agent doesn’t make sense since individuals have talents , religions , ethnicities and cultures that make them who they are . If all these identities are taken away then what individual can we speak of . Hence Rawls’ idea of individuals deliberating on the principles of justice without any conception of themselves behind a veil of ignorance is metaphysically impossible . The whole idea of Rawls ,they point out,is seeing society as a set of isolated individuals with competing claims. This may not be entirely true.

Communitarians emphasize that individuals can only be identified as members of pre-existing social organizations. This means that whatever ideas men and women have are from the society and community they are a part of . Hence any notion of distributive justice will also belong to this context . Communitarians argued that if individuals are abstracted from their social economic and cultural contexts in an original position and behind a veil of ignorance ,such individuals will not be able to make choices. The notion of the universal good or good of the most disadvantaged cannot be made in isolation since the very conception of good and justice are ideas which are specific to particular communities and specific points of time . Michael Walzer in his book Spheres of Justice argues  that no system of justice can be evaluated as inherently just or unjust . Evaluation is only possible of meanings attached to the goods by the community. Walzer gives the example of a society based on the caste system of birth. Hence in such  a case access to various primary goods like basic education, property rights etc. will be determined by one’s position at birth . So long as all members of a society understand the same conception and meaning of the caste system, their conception of justice will only logically flow from their meaning attached to the caste system. So distribution of primary goods cannot be decided without understanding the social meaning attached to such goods in the context of a specific community  and the practices and institutions of that community. The primary goods that are to be distributed are essentially social goods and their meaning and values are created socially. Justice can therefore be understood only within a communal framework and not on the basis of abstract universal principles which Rawls gives . 

** Ranjini Ghosh is a student of class 11 at Gopi Birla Memorial School  . She takes keen  interest  in the philosophy of law and theories of justice as applied to real life .

1. Rawls , John , A Theory of Justice , Harvard University Press, 1971.
2. Sen , Amartya , The Idea of Justice , Penguin books , 2009.
3. Sandel , Michael J. , Justice , Penguin book , 2009.
4. Nozick , Robert, Anarchy , State and Utopia , Basil Blackwell , 1974.
5. Walzer , Michael , Spheres of Justice , Basic Books , 1983.