University of Transnational Business Law

C. John Rawls: The Original Position Argument

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This entry discusses Rawls’s original position argument for his two principles of justice. It first explains the original position argument as a heuristic device intended to model the relationships between several fundamental idea(l)s implicit in the most basic question citizens face in a liberal democracy: How ought we organize our polity? It then explains how the argument as a heuristic device highlights the superiority of Rawls’s two principles of justice to its main utilitarian rivals.


I. Fundamental Idea(l)s and the Original Position

How ought we as democratic citizens organize our polity? To answer this question, Rawls recast it in the more basic and manageable terms of the original position argument. In A Theory of Justice Rawls developed the original position argument by specifying the circumstances of justice, the role of principles of justice in governing the institutional production and distribution of social primary goods, various formal requirements of justice, principles of rational choice, and so on. In Political Liberalism he recast the original position argument as a heuristic the power of which derives from its incorporating three fundamental idea(l)s. These are the idea(l)s of fair social cooperation, persons as free and equal citizens, and the well-ordered society. In the spirit of Rawls’s Restatement, what follows is a composite.

Rawls does not consider the question of whether we ought to have a polity. He devotes his attention to the question of what kind of polity we ought to have. When we inquire, as democratic citizens, into the kind of polity we ought to have, Rawls holds, we implicitly assume that our polity is a system of social cooperation from one generation to the next. What we want to know is how it ought to be organized. Because we think of ourselves collectively as the free and equal co-authors of the system of social cooperation that is our polity, we assume that the system must be fair in the sense that each and every citizen could accept and voluntarily act on its rules. At a minimum, this requires that simply by following the rules, citizens reliably and mutually advantage one another.

The idea of social cooperation for mutual advantage presupposes two further ideas. Both are necessary to give determinate content to the idea of mutual advantage. The first is the idea of a metric in terms of which citizens are made better or worse off. The second is the idea of a baseline or default condition against which any proposed institutional arrangement can be assessed to determine whether it mutually advantages all subject to it.

As citizens we cooperate politically for the sake of various goods we could not secure adequately for ourselves without cooperation. Rawls calls these social goods. There are many social goods reasonably sought by at least some citizens in modern democracies. But the idea of mutual advantage presupposes a (public and easily deployed) metric applicable to all citizens. And so Rawls identifies a small number of “primary” social goods. These are social goods the possession of which it would be reasonable to suppose to the advantage of any, and thus each and every, citizen. They are goods responsive to the higher order interests all citizens have in the development and exercise of their two fundamental moral powers or capacities (discussed immediately after the next paragraph). These basic or generic goods Rawls labels “primary goods.” They include basic rights and liberties, diverse opportunities (including education and training) for office and authority, wealth and income, the social or public bases of self-respect, and so on. When citizens ask how they ought to organize their polity’s basic social structure, they’re really or initially asking what principles ought to govern their cooperative production and distribution of primary goods so understood.

Rawls identifies the baseline or benchmark against which mutual advantage is to be assessed as the level of primary goods each citizen would enjoy if all citizens over a complete life received, or could reasonably expect, an equal share of society’s total cooperative output of primary goods. A distribution of primary goods is mutually advantageous, then, if for all citizens it improves over this egalitarian benchmark the received or reasonably expected share of primary goods. Unequal distributions of primary goods may be mutually advantageous, then. An unequal distribution may make it possible to increase the total cooperative product available for distribution over what would be available under an equal distribution. So long as all share in that additional cooperative product, all are mutually advantaged relative to the egalitarian benchmark. Here Rawls’s idea is that income differences may enhance overall social productivity by encouraging (or at least removing disincentives for) individuals to develop and exercise their socially useful or valued talents. So long as all share in the increased social product realized under a system of unequal incomes, unequal incomes may leave everyone better off than they would be were the total social product shared out equally under a system of equal incomes.

This egalitarian benchmark or baseline reflects the moral self-understanding of democratic citizens as the free and equal co-authors of the basic structure of their polity. Each citizen has the capacity and disposition – Rawls called it “the rational” – to pursue her own good. But each needs the cooperation of others to secure her own good, and knows that others similarly need her cooperation to secure their good. Each has also, then, the capacity and disposition – Rawls called it “the reasonable” – to subordinate the pursuit of her own good to fair public terms of cooperation with fellow citizens, provided they do the same. Citizens are equal in that they each have the foregoing two fundamental moral capacities or powers to the minimum degree necessary to enter into and sustain fair social cooperation. They are free because they remain citizens regardless of their particular commitments and desires, because they are responsible for adjusting their particular commitments and desires to the demands of a just or fair basic social structure (rather than the other way round), and because they have final authority over their polity’s basic social structure as equal co-authors. As equal democratic citizens all have the same self-authenticating valid claim when it comes to determining terms of cooperation for the production and distribution of primary goods within and through their polity’s basic structure. None need settle for anything less than that which they would receive under a system of equal shares. But if all citizens can agree to a system that reliably leaves each better off than she would be under a system of equal shares, then they are free to adopt that system.

When citizens ask for principles of social cooperation they could each publicly accept and voluntarily honor, they are not asking how they ought to organize the production and distribution of primary goods as men and women, or Blacks and Whites, or workers and capitalists, or Christians and non-Christians, or the highly talented and the less talented, or the Hatfields and the McCoys (or any other properly named individuals). They’re asking rather how they ought to organize their basic social structure simply as free and equal citizens. They recognize as morally irrelevant their particular identities and as morally relevant their identical self-authenticating claims with respect to that cooperative undertaking. They’re asking for principles of social cooperation that could imagine affirming from a shared moral point of view and then voluntarily honoring in social life. A basic social structure governed by such principles would be a “fair game,” at least as assessed from the democratic self-understanding of citizens as its free and equal co-authors.

One final point regarding Rawls’s recasting of the question “How ought we as democratic citizens organize our polity?”: Rawls assumes that when we ask this question we’re aiming at a “well-ordered” polity. A polity is well-ordered when it is governed by a public conception of justice that everyone knows and affirms and knows that everyone else knows and affirms, when the main institutions are faithful to or comply with the public conception of justice, and when ordinarily citizens reared and living under such institutions voluntarily comply with the demands those institutions make on them without excessive policing or manipulation.

The foregoing should suffice to suggest how Rawls’s original position argument models the assumptions and key ideas implicit in, and thereby recasts, the basic question democratic citizens face. Because we are, as free and equal democratic citizens, inquiring into fair terms for the cooperative production and distribution of primary goods in a well-ordered polity, we ask: What principles for the production and distribution of primary goods would rational, mutually disinterested (i.e., envy free) agents agree to as the foundational, binding, and public charter of their polity if they were in an ‘original position,’ blinded by a reasonable ‘veil of ignorance’ to all the morally irrelevant details of their particular identities, and concerned only to improve their own reasonably expected share of primary goods over a complete life no matter who they turn out to be? To answer this question, Rawls imagined such hypothetical agents engaging in a number of pair-wise comparisons between historically significant conceptions of justice. The two most significant candidate alternatives were utilitarianism and justice as fairness. Rawls argued that rational agents in an original position blinded by a veil of ignorance would unanimously converge on his own justice as fairness as the best of the alternatives available to them. This argument from the original position constitutes Rawls’s main line of argument in favor of justice as fairness as the best answer to the most basic question faced by democratic citizens. Of course, one might treat the original position argument as a mere heuristic device and endeavor to argue directly from the assumptions and ideals it organizes to the two principles. To this Rawls has no objection.
II. Making the Case for the Two Principles

Rawls first compared his two principles to utilitarianism. He argued that agents in the original position would prefer his two principles for at least two reasons. First, his two principles firmly secure the basic liberties essential to citizens’ fundamental interests as both rational and reasonable, whereas utilitarianism does not. Utilitarianism carries always some real possibility (of an unknowable or uncertain probability) of a morally catastrophic loss of liberty for citizens. The two principles guarantee a satisfactory social world, at least in terms of basic rights and liberties. This satisfactory social world is rationally to be preferred over the potentially unsatisfactory social world governed by utilitarian principles. Second, as a matter of moral psychology, citizens cannot reasonably be expected voluntarily and reliably to honor utilitarian demands that leave subject to ongoing reassessment the basic rights and liberties essential to their fundamental interests. A polity organized on utilitarian principles will suffer, then, from instability to some nontrivial degree. A polity organized on the principles of justice as fairness will avoid at least this instability. Agents in an original position will prefer, then, the latter. This first comparison demonstrated, for Rawls, that fair terms of cooperation must include a liberty principle, and thus a constitutionally entrenched system of basic liberty rights, immune to being overturned by utilitarian considerations.

Rawls next compared his two principles to what he called “restricted utilitarianism.” Restricted utilitarianism accepts the liberty principle and its priority, accepts fair equality of opportunity, and accepts a social minimum or safety-net (of the sort familiar in developed liberal democracies). But it then, subject to the constraints just given, organizes the basic structure (mainly the economy) so as to maximize average utility. By comparing his two principles to this restricted utilitarianism, Rawls focused attention on the merits of his “difference principle” over and against a humane utilitarianism immune to morally catastrophic losses of liberty or the worst distributive possibilities. He argued that original position agents would favor his difference principle for several reasons. One reason is that it is better suited to serve as a public principle of justice. Reliable society-wide assessments of average utility are difficult, if not impossible, to generate within reasonable costs. Another reason is that it is more likely to secure social stability. It will permit a smaller range of economic inequalities than restricted utilitarianism. And the inequalities it permits will themselves be seen by democratic citizens as more fully faithful to the ideals of reciprocity and fraternity implicit in their self-understanding as the free and equal co-authors of their polity’s basic structure. This constitutes a third reason for thinking it superior to restricted utilitarianism. It bears emphasizing that a general current running beneath the surface of all Rawls’s arguments against utilitarian principles of justice is that original position agents must choose principles of justice with a good faith expectation that the parties they represent will be able and inclined voluntarily to comply with those principles and support the institutions embodying them no matter how they fare under them. Certain sorts of gambling (choosing high yield but high risk principles of justice) for the sake of the parties they represent is thus ruled out.

Rawls did not think the two comparisons yielded similarly strong results. He felt the first comparison pointed more decisively toward justice as fairness than the second. Still, overall, he maintained that the two comparisons taken together show that justice as fairness constitutes a better answer to our fundamental question as democratic citizens than the most familiar and politically tempting versions of utilitarianism. It best expresses our implicit commitment to mutual recognition and reciprocity as free equals in social and political life.

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