We need rules for living together, we cantankerous human beings: this is one premise governing John Rawls’ A Theory of Justice, and one that governs social contract theory in general. As chaos is the point of departure for creation myths, so conflict has been for political theory. We need rules to establish peace and order and stability. Just as “the word” makes existence possible, and conceptual categories (causality and the rest) make experience possible, rules are (to put it in Kantian language) the conditions for the possibility of a society.
The question is then what these rules are to be. We might appeal to a variety of different standards when determining them, only one of which is “justice.” Other possibilities include, for instance “the word of God.” But the point of Rawls’ book is not to argue directly for justice over these competing possibilities. When he tells us that justice “is the first virtue of social institutions,” he is asking us to assume with him that it is the correct standard for ordering a society. He also asks us to assume from the outset that justice is a particular sort of thing: that it involves at its core, concepts of fairness (premised on human equality) and liberty (with attendant rights), and is a means to the fair allocation of goods within a society (that is, “distributive justice”). Rawls calls this “justice as fairness.”
Once we assume that we need rules for living together and that our standard for choosing them is justice-as-fairness, we can then move on to Rawls’ “original position” and “veil of ignorance”: these are thought experiments meant to force us into the position of fair-mindedness. They lend themselves to the concept of fairness because they require us to give up our biases: in the “veil of ignorance,” those deciding on the rules that will govern a society know nothing about their class, social status, natural abilities, psychological propensities, or conception of the good. What they do know is something they have in common with everyone else – their “essential goods” or “basic needs,” along with general facts about the world. In such a position we are forced – even as self-interested parties – to choose what’s fair, maximizing as much as possible the prospects of the least well off, just in case we are one of them.
One criticism of the veil of ignorance we gave voice to in our recent episode on Rawls – one often associated with communitarians such as Michael J. Sandel – is the notion that it leaves us in too weak a position to make a genuine, rational decision about how a society should be ordered; that the deliberators in this position are implausibly abstract, and devoid of the communal identity required to make a meaningful choice. Does this objection work? I doubt it: clearly human beings have a capacity for fair-mindedness, and fair-mindedness must transcend particular fealties and biases in just the way that Rawls describes.
This objection is better framed as a challenge to the notion that justice-as-fairness is the proper principle for ordering a society in the first place, as opposed to some other shared conception of the good, such as religion. Liberalism and theocracy are two competing notions of how to set up a polity. This is not to say that a theocracy can’t incorporate principles of justice-as-fairness (and even some level religious tolerance), as long as they are subordinate to more fundamental theocratic principles; nor is it to say that the theocrat won’t identify religious principles with a sort of “justice” that is broader than justice-as-fairness as we have defined it.
We might try to argue the theocrat off their position by appealing to their self-interest. We might point out that historical shifts of power are just as likely to endanger a particular religion as enthrone it, making the pluralistic society that results from the application of justice-as-fairness a safer bet than theocracy for ensuring the unfettered practice of religion, even if it deprives one’s preferred religion (or another conception of the good) of the political power it might have under certain circumstances.
But this sort of argument is unlikely to produce agreement, and it is one you must have before you enter the original position’s very special, amnesia-inducing conference room. Many theocrats would see the risk of being a religious minority as worth the possibility of seeing state sanction of the one true religion. There’d be little point in conducting the Rawlsian thought experiment without assuming from the beginning the standard of justice-as-fairness, because it is the one standard that can incorporate and tolerate other, conflicting conceptions of the good within its framework. Absent justice-as-fairness, can we think of some means of reconciling two theocrats with differing religions? If the goal is, as we’ve assumed, to move from primordial conflict to order, then justice-as-fairness has something to recommend it from the beginning after all. This is to say that, as I hinted at the outset with talk of “conditions for the possibility,” there might be transcendental arguments to be made for liberalism, just as there are transcendental arguments to be made for the law of non-contradiction and categories of experience. Assuming that non-contradiction, coherent (and especially scientific) experience, and lack of conflict are what we really want.
— Wes Alwan