University of Transnational Business Law

B. John Rawls: His Two Principles and Their Application

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This entry discusses Rawls’s two principles of justice and their application through a four-stage sequence to the basic social structure.
I . Rawls’s Two Principles of Justice

The content of justice as fairness is given, most basically, but not completely, by Rawls’s now famous two principles of justice. Rawls’s first principle concerns the distribution of basic liberties. His second principle concerns first the distribution of opportunities for offices and positions of authority and second the distribution of wealth and income. Before saying more about the content of the two principles, it is important to note that under the favorable conditions of ideal theory they are, on Rawls’s view, serially (or as he often says, lexically) ordered. This means that the first principle may not be violated for the sake of the second. And the second principle’s first half may not be violated for the sake of its second half. Neither principle may be violated for the sake of aggregate goods (such as increased Gross Domestic Product), corporate goods (such as national defense - though as a matter of non-ideal theory there is an exception in the case of a sufficiently severe constitutional crisis), or perfectionist goods (such as a more virtuous or righteous citizenry). Justice takes priority over these goods. The two principles are meant by Rawls to be satisfied together. While they do not presuppose advanced levels of development or great wealth, they are not meant to apply to (the non-ideal conditions of) impoverished or primitive societies. The two principles presuppose the satisfaction of a more fundamental principle requiring that the basic needs of all persons within the polity be met.

The first principle demands a constitutionally recognized system of equal basic liberties fully adequate to the fundamental interests of citizens as citizens. Citizens have fundamental interests in the social conditions essential to the development and exercise of their two basic moral capacities – to form, revise and pursue a conception of their own good, and to propose and honor fair terms of social cooperation with others. The basic liberties are the familiar canonical liberal liberties (conscience, speech, association, and so on) and are given by a list. They are to be constitutionally secured.

The second principle is to be legislatively secured. It demands that laws and policies giving rise to social and economic inequalities satisfy two conditions (corresponding to the two halves of the principle). First, they must be consistent with fair equality of opportunity. Second, the lowest social and economic status they permit must be higher than, first, the social and economic status all would enjoy under a system of law and policy that insured social and economic equality and, second, the lowest social and economic status permitted by any other feasible system of inequalities. Subject to the priority of the basic liberties and fair equality of opportunity, then, justice, strictly speaking, forbids laws and policies giving rise to social and economic inequalities unless they i) leave everyone with a regularly allotted expected lifetime share of wealth and income superior to what they would enjoy under a system of equal shares, and ii) are necessary to maximize the smallest regularly allotted expected lifetime share of wealth and income.

Rawls assumes that there exist systems of unequal regularly allotted expected lifetime shares of wealth and income that satisfy the first condition. This is because persons will not reliably cultivate and put to socially productive uses their talents in the absence of laws and policies that reasonably guarantee that they will be able to cover the various costs to them (training, lost opportunities) associated with so doing. A system of equal regularly allotted expected lifetime shares of wealth and income is unlikely reliably to elicit the cultivation and use of socially productive talents. While wealth and income may be shared out equally in such a system, each share is smaller than it could be if disincentives to the development and exercise of socially productive talents were eliminated by allowing for unequal shares.

Of the systems of unequal regularly allotted expected lifetime shares of wealth and income that satisfy the first condition, Rawls identifies as just that system within which the lowest regularly allotted expected lifetime share of wealth and income is as high as it can be. This is the share expected by the typical unskilled worker; unskilled workers have the lowest costs associated with the development and exercise of their talents. Thus, on Rawls’s view, inequalities between the lowest and the highest regularly allotted expected lifetime shares of wealth and income are just only if without them the lowest expected share would be even lower still.

It is important to keep four things in mind about Rawls’s claim that justice demands a social world within which the lowest expected lifetime share of wealth and income for any representative citizen is as high as it can possibly be. First, expected lifetime shares of wealth and income are determined by and relative to the rules governing the economy and the basic social structure more generally. The ‘least advantaged,’ then, are not those least advantaged by nature apart from or prior to participating in the economy. They are, instead, those least advantaged by their participation in the economy. Second, advantage is measured relative to the (egalitarian benchmark of the) expected lifetime share of wealth and income for any representative citizen when wealth and income are shared out equally. Third, to maximize the smallest expected lifetime share of wealth and income for any representative system is not to maximize the share for some group the members of which might be picked out by proper names or so-called rigid designators. Rather, it is simply to arrange the game of the economy so that the lowest regularly expected score, no matter whose score it is, is as high as it can be. Fourth, Rawls is not arguing for the redistribution of wealth and income as if wealth and income could be defined independent of the principles of justice. Rather, Rawls is arguing for a system within which the rules that constitute or make possible wealth and income also work to maximize the regularly allotted minimum expected lifetime share.

The second principle, and in particular its second half, known as the difference principle, guarantees that no citizen may reasonably complain over the substantive value or worth to her of the equal liberties formally guaranteed by the first principle. True, if she is economically or materially among the least well-off, the formally equal liberties she enjoys with all others may be worth less to her than they are to all those who are better-off. But under any other system of law and policy consistent with the first principle and with fair equality of opportunity, they would be worth even less to its least well-off. The difference principle requires a social world within which the minimum value of basic liberties to any citizen is higher than it would be in any other feasible social world, including one within which wealth and income were equally distributed. In this way, Rawls aimed to meet the familiar Marxist complaint that the formally equal system of liberties central to liberal theories of justice inevitably serves to legitimate and entrench structural, group-based relations of economic exploitation.

The two principles so understood still fail to guarantee a social world faithful to the democratic requirement that there be no significant inequalities in the worth or value to citizens of their equal political participation liberties. To meet this worry, Rawls attached to the first principle a corollary guaranteeing all citizens “fair value” for their political liberties. While the worth or value to citizens of all other basic liberties is determined or regulated by the difference principle, the worth or value to citizens of their political participation liberties is determined or regulated by the liberty principle itself, the first principle of justice.

Rawls identified two political systems or institutional arrangements faithful to his two principles: liberal democratic socialism and “property owning democracy.” He ruled out as inconsistent with his two principles laissez-faire capitalism, welfare state capitalism, and state socialism with a command economy.
II. The Basic Social Structure

The two principles apply to the basic social structure. The basic social structure is the total set of key institutions, taken as a dynamic and integrated whole, constitutive of the polity. It is the unified and rule-governed system within which particular institutions (government offices, the legal system, markets, civil society, the family, and so on), as well as individual citizens acting within those institutions, interact over time. There are at least three reasons it is, on Rawls’s view, the first subject of justice. First, in every polity, it powerfully shapes the desires, dispositions, even character, of citizens. Second, it provides the institutional context within which citizens acquire obligations and entitlements and thus come, through their actions in light of those obligations and entitlements, to deserve this or that kind of treatment. Third, it provides the institutional context within which natural traits or abilities acquire determinate value. These three considerations in favor of treating the basic social structure as the first subject of justice constitute also reasons to regard as question begging or insufficiently critical attempts to define justice in terms of either the satisfaction of existing desires (some forms of utilitarianism), or entitlement or desert (some forms of libertarianism), or a bargain struck between persons with determinately and differently valued natural endowments (some social contract theories).

The two principles do not apply directly to particular components or elements of the basic social structure; they apply to the whole taken as a dynamic system. While the family in whatever form it is legally and socially recognized is part of the basic social structure, the two principles do not apply directly to the family. Rather, they apply indirectly insofar as they apply to the total set of institutional relations within and through which the family is part of the basic social structure. The same holds for churches, the market, business corporations, and so on. They must satisfy the two principles only when taken together as a unified, dynamic system, as a social world.

The two principles do not apply to the allocation of particular entitlements to determinate individuals. Within a basic social structure faithful to the two principles, citizens develop legitimate expectations. They then determine how particular entitlements are allocated between them by what they actually do within, and subject to the rules of, the basic social structure. I am entitled to my particular salary from my employer because as a matter of historical fact and subject to the rules of a (let us assume reasonably just) basic social structure (rules that include contract law) my employer and I entered into a particular, legally valid, agreement. Justice requires that I get my salary. But only because my entitlement to it arises against the background of just social institutions.


III. A Four Stage Sequence

As an analytic and normative matter, the two principles are applied to the basic social structure in stages. First, they are applied to the political constitution. Here Rawls’s focus is on the first principle and its corollary demand of fair value for the political liberties. The two principles require a constitutional liberal democracy faithful to the majority principle. Subject to this constraint, each polity is free to select that political constitution best suited to its own historical or demographic condition. Second, the two principles are applied to the system of laws and policies. Here Rawls’s focus is on the second principle. The primary work of legislators and policy-makers is to create a system of law and policy that satisfies the second principle while remaining faithful to the first principle and the political constitution (from which their authority derives). Legislators and policy-makers are free in this undertaking to select that system of law and policy best suited to the historical, demographic, economic and other relevant general conditions of their society. They may also act with other ends in mind (e.g., increasing GDP, protecting the environment, authorizing a space exploration program, etc.), subject to the constraints of justice. Third, the two principles are applied to individual persons and transactions. This is the work of the executive and adjudicatory aspects of the legal system. Judges and other officials apply to particular cases the laws and policies enacted by legislators and regulators. Taken all together, then, Rawls presents a four stage sequence: i) the selection of principles of justice, ii) the selection of a constitution subject to the constraints imposed by the principles of justice, iii) the enactment of laws and policies subject to the constraints imposed by both the principles of justice and the constitution, iv) the adjudication of particular disputes subject to the constraints imposed by the principles of justice, constitution and laws and policies. As one moves for the first to the fourth stage, the agents deciding the question at hand are afforded access to more and more information, the “veil of ignorance” is steadily lifted. At the fourth stage, judges appropriately know all the relevant facts about the particular case before them.