Justice as the first virtue of Society
John Rawls, a professor of philosophy at Harvard University, posited a liberal political theory modifying the social contract theory conceptualizing liberal democratic society.
In going beyond the traditional way of conceiving a social contract between a State and its people , Rawls perceived justice primarily as fairness.
His assertion that ‘justice is the first virtue of society’ (Cohen, p.685) —
intuitively resonates with our idea of a society guided by ethical and moral rules underpinning social solidarity; rules respecting fundamental individual human rights…
Arguments raised by legal positivists that positive laws of Sovereign States derive their legitimacy solely from legal norms enacted by their legislature conflict with Rawls’ assertion that:
“Laws and institutions no matter how efficient and well -arranged must be reformed or abolished if they are unjust.
Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.” ( Cohen. p.685)
The fact that laws legally passed by the legislature of a Sovereign state may be unjust and even cruel in their treatment of individuals is not entirely inconceivable;
The political theorist, Hannah Arendt considered the nature of totalitarian rule in States such as historical Nazi Germany;
The rule of such states, she wrote, –
‘‘far from being ‘lawless’ …goes to the sources of authority from which positive laws received their ultimate recognition …far from being arbitrary ..is more obedient to these superhuman forces than any government ever was before, —
and that far from wielding its power in the interests of one man, it is quite prepared to sacrifice everybody’s vital immediate interests to the execution of what it assumes be the law of History or the law of Nature.” ( Cohen, p. 548)
As Arendt reminds us, positive laws enacted by a Sovereign State’s legislative institution may claim a superior form of justice that allow them to transcend the interests of individuals, since its source is traced to a ‘higher form of legitimacy’ (Arendt quoted in Cohen, p.548);
an ideological legitimacy cloaked in the principle of legality that autocratic and totalitarian States invoke to demand the obedience of their people; ‘a political order in which crime is legal and the rule.‘ ( Arendt 2006, p.292)
‘back of the concept of act of State stands the theory of raison d’etat.
According to that theory, the actions of the State , which is responsible for the life of the country and thus also for the laws obtaining in it, are not subject to the same rule as the acts of the citizens of the country.”
”Just as the rule of law, although devised to eliminate violence and the war of all against all, always stands in need of the instruments of violence in order to assure its own existence , —
so a government may find itself compelled to commit actions that are generally regarded as crimes in order to assure its own survival and the survival of lawfulness.” ( Arendt 2006, p.291)
In this post-Holocaust world we live in today, the legislative effect of nationalistic policies of States promulgating ethnical, linguistic, racial and economic superiority of privileged groups of people bodes ill for the protection of rights of minorities and vulnerable individuals.
Demagogues of States are even known to promote policies that effectively legalize International Crimes of apartheid, genocide and colonialism, justifying their political acts of violence and death in the name of legality.
At the time of writing, the Burmese army had reportedly killed more than 700 civilians including children protesting against its coup d’etat in February 2021 Myanmar Coup Highlights Autocracy’s Rise in Southeast Asia – The New York Times (nytimes.com);
While the Chinese government is said to be committing crimes against humanity against Uyghurs and other Turkic Muslims in the northwest region of Xinjiang; China: Crimes Against Humanity in Xinjiang | Human Rights Watch (hrw.org)
Such a political morality that embraces the Benthamite utilitarian calculus permitting the rights of some to be sacrificed for the greater good of the majority is, to say the least, unjust to the individual;
Since, a ‘shared conception of justice’ that Rawls speaks of in his work is by definition an inclusive one, respectful of individual dignity.
A shared conception of Justice within Society
Rawls’ theory of justice is premised on the idea that a society is a self- sufficient association of persons ‘who in their relations to one another recognize certain rules of conduct as binding and who for the most part act in accordance with them.” ( Cohen, p.686)
Rawls acknowledges that such a society would not only be characterized by a degree of cooperation among its members , for their mutual benefit, —
but also by a conflict of interests, since ‘persons are not indifferent as to how the greater benefits produced by their collaboration are distributed, for in order to pursue their ends they each prefer a larger to a lesser share.”(Cohen, p.686).
This need to satisfy the insatiable social desires and aspirations for wealth, fame and success within the individual is a theme explored by the sociological writer, Durkheim in his theory of anomie or normlessness.
Principles of social justice are therefore imperative in ensuring ‘a way of assigning rights and duties in the basic institutions of society and they define the appropriate distribution of the benefits and burdens of social cooperation.” ( Cohen, p.686).
Such a just society in Rawls’ perception would be a well-ordered society, governed by a public conception of justice defined as :
‘‘a society in which (1) everyone accepts and knows that the other accepts the same principles of justice , and–
(2) the basic social institutions generally satisfy and are generally known to satisfy these principles .”
From this perspective, even if individuals within a society evince a form of self- interest in their interactions with others in achieving individualistic goals , ‘a shared conception of justice establishes the bonds of civic friendship.'( Cohen p. 686)
The question that remains, however, is how such ‘a shared conception of justice’ is to be defined;
To Rawls’, Justice must be conceived as:
‘political, not metaphysical….capable of being the object of an overlapping consensus amongst such reasonable doctrines.'( Brown, p.8)
In this analysis, those who advocate, for instance, for the rights of stateless immigrants would not be able to plausibly defend their views based on their particularistic religious beliefs;
‘they must employ only those arguments to which other believers in other reasonably comprehensive doctrines can reasonably be expected to respond’ (Brown p.8), —
by for instance invoking the International protection of human rights enshrined in the 1951 Refugee Convention or The Universal Declaration of Human Rights 1948, recognizing that ‘all human beings are born free and equal in dignity and rights” and ”are endowed with reason and conscience, and should act towards one another in a spirit of brotherhood.‘ Universal Declaration of Human Rights | United Nations
A Rawlsian approach to justice would not necessarily reject differing conceptions of justice specific to some liberal and non- liberal States as long as they ‘still agree that institutions are just when no arbitrary distinctions are made between persons in the assigning of basic rights and duties”(Cohen, p. 686).
Thus the detention by a State, invoking national security concerns, of minors, the disabled, political dissidents, or human rights activists advocating democratic reforms to a society would be deemed arbitrary and unjust in the absence of due process rights to a fair trial and legal representation afforded to such individuals.
Rawls’ Theory of Justice: Principles of Justice chosen behind a veil of ignorance
Rawls’ theory of justice begins with the reconceptualization of the theoretical idea of social contract, propounded by writers such as Rousseau and Locke, entered into by self-interested individuals with a sovereign involving the setting up of government.
The question posed is: how can those from diverse backgrounds, varying religious, ethical beliefs, and conflicting interests,—
involving, for example, property claims and payment of taxes, agree to a social contract with a government for the fair allocation of such obligations and rights of such individuals?
Rawls’ answer to this question posits justice as fairness underlying a fictional social contract, which one enters into, characterized by the following features:
‘no one knows his place in society , his class position or social status , nor does anyone know his fortune in the distribution of natural assets and abilities , his intelligence, strength and the like.’ (Cohen, p.688)
The principles of justice, from this perspective, are chosen behind a veil of ignorance to ensure that:
‘no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance in the contingency of circumstances.'( Cohen p.688).
A far cry, you could say, from a traditional understanding of how burdens and rights in society are perceived to be allocated by Sovereign States among individuals and groups of people, —
allocated in ways that are contingent upon one’s social and political status, wealth and at times, even one’s religious, linguistic and ethnical background.
The idea gleaned from Rawls’ analysis is that if one were to possess knowledge of, for instance, one’s disadvantaged financial or economic status, one would presumably support the taxing of the wealthier classes to ensure the distribution of benefits for the poorer segments of society;
conversely, one would presumably support the exempting of the rich from being taxed if one were a wealthy capitalist or entrepreneur.
The purpose of Rawls’ fictional existence of a veil of ignorance among individuals in the original position and the corresponding conditions impinging on such a fictional social contract–
is to ensure the representation of equality among such individuals.
“equality between human beings as moral persons, as creatures having a conception of their good and capable of a sense of justice,” –
defining ”the principles of justice as those which rational persons concerned to advance their interests would consent as equals —
when none are known to be advantaged or disadvantaged by social and natural contingencies.”
( Cohen , p.691)
Two principles of Justice postulated by Rawls
Rawls’ two principles of justice include:
”First : each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.”
”Second: social and economic inequalities are to be arranged so that they are both
(a) reasonably expected to be to everyone’s advantage , and–
(b) attached to positions and offices open to all.” ( Cohen, p.692)
Equal individual liberties satisfying Rawls ‘ first formulation of justice would comprise of every individual citizen possessing the same basic rights of :
‘political liberty ( the right to vote and to be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought;
freedom of the person along with the right to hold personal property; and freedom from arbitrary arrest and seizure …” (Cohen, p.692)
These individual liberties embedded within the first principle of justice arguably give meaning to what it means to be a sentient rational, moral human being, —
whose unique individuality is expressed through and mediated by his or her’s thoughts, musings and emotions,-
and reflected in such a person’s speech and interaction with others within a society.
Underpinning such a notion of equal liberties is the recognition of the inherent dignity of every human being, —
regardless of his or her political status in life or the political society which he or she is part of.
In this regard, It is imperative to note that the Universal Declaration of Human Rights 1948, recognized by many as a source of International Customary law ‘binding on the entire community of States’ SSRN-id3518106 (1).pdf , states that:
‘‘…the inherent dignity and … the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. Preamble to the UDHR 1948
Having prioritized the first principles of justice, Rawls in his second principle argues that the presence of unequal distribution of wealth and income must be such that–
it is ‘to everyone’s advantage , and at the same time , positions of authority and office of command must be accessible to all’.
The hierarchical ordering of these two principles suggest that ‘a departure from the institutions of equal liberty required by the first principle cannot be justified by, or compensated for, by greater social and economic advantages”, —
since ”injustice… is simply inequalities that are not to the benefit of all.” ( Cohen, p.692)
How is democratic equality among individuals in a society achieved?
Rawls argues that “democratic equality is arrived at by —
combining the principle of fair equality with the difference principle ….
the higher expectations of those situated are just —
if and only if they work as part of a scheme which improves the expectations of the least advantaged members of society.” ( Cohen, p.694)
in this analysis of ‘democratic equality’ or a perception of justice as fairness we observe an inextricable link, drawn by Rawls,–
between the treatment of wealthier individuals and that of the less well off in society.
A paradigm of justice requiring that any policies benefiting the wealthy, ruling classes in Society be contingent upon improving the social, economic, political conditions of the underclasses in society, their access to universal medical care, employment, legislated minimum wages rather than progressive wages;
As Rawls states:
”The intuitive idea is that the social order is not to establish and secure the more attractive prospects of those better off unless doing so is to the advantage of those less well off.’ ( Cohen p.694)
Brown, C. (2002), ‘The Construction of a ‘Realistic Utopia’: John Rawls and International Political Theory’, Review of International Studies, 28:1, pp. 5-21.
COHEN, M. (2018), Princeton Readings in Political Thought: Essential Texts from Plato to Populism. Princeton, Princeton University Press.
Hannah Arendt (2006), Eichmann in Jerusalem, A Report on the Banality of Evil’, Penguin Books, New York.
Universal Declaration of Human Rights, UN 1948. Online: http://www.un.org/en/universal-declaration-human-rights/