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PHIL 427
Professor Samuel Freeman
Rawlss Justice as Fairness
In A Theory of Justice, John Rawls sets himself to the task of finding the basic
fundamental principles that can account for our usual moral judgments regarding
institutions. To do so, he imagines the principles that rational persons in a hypothetical
ideal position of equality and freedom would agree to: equal basic liberties and fair equality
of opportunity. In this paper, I will explain further these principles and the original position,
and will show why Rawlss account of liberalism offers a more convincing and less
problematic way to explain our moral judgments than Mills.
Since Humes critique of the Locke and the social contract theory, utilitarianism has
dominated political philosophy. However, the principle of utility seems to conflict with
several of our common moral views, it seems to be inapt for thinking about justice in a
democratic society (for example, it doesnt account for equal citizenship). Rawls proposes a
revival of the social contract theory as the way to find the fundamental principles that can
explain our sense of justice in a more satisfactory way than the principle of utility. He
argued that the problems of the previous contractarian theories lied in the ways they set up
their original positions, resulting in theories that we would consider unjust. A correct
modification of the conditions of the original position would render a more general and
satisfactory theory of justice.
Before going to the details of such modification, lets take a closer look at the two
principles of which Rawlss theory of justice, justice as fairness, consists. He states the first
one in the following terms: Each person is to have an equal right to the most extensive
total system of equal liberties compatible with a similar system of liberty for all
1
. All
persons of a society must have some basic equal liberties (of conscience and association,
thought and expression, freedom of the person, political participation, and the rule of law).
However, even though Rawls defends equal rights, his theory is not one of equal
economical distribution. Inequalities offer benefits for society such as incentives and
effective systems of allocation. The question is how to make those inequalities fair, and
how to maximize the worth of the positive liberties of the first principle for the least
advantaged. This is the role of the second principle: Social and economic inequalities are
to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, and
(b) attached to offices and positions open to all under conditions of fair equality of
opportunity.
2

Lets take a closer look at it. By opening offices and positions to everyone, the
principle establishes a formal equality of opportunity (where according to the law everyone
can have access to any position). However, several social contingences will still determine
who will have access to those opportunities (for example, someone born wealthy will
receive a better education that will allow him to get a better job than someone who
doesnt), so to transform this equality of opportunity from a formal one to a real one,
institutions such as a public systems of education and health care are necessary.
Nevertheless, this will never be a perfectly real equality of opportunity: social institutions
such as the family will still have a great influence on it, and even if this could ever be
neutralized, fair equality of opportunity will make a meritocratic system just (rewarding
people on the basis of their good luck at the lottery of natural talents). This is why Rawls

"
John Rawls, A Theory of Justice, p. 266.
#
Ibid.
introduces the difference principle, which states that social and economic inequalities must
benefit the least advantaged.
Hes not picturing a welfare state, where tax collection is used to cover some basic
needs while huge inequalities are still allowed; instead, in a system that follows correctly
the difference principle, every inequality will benefit the least advantaged, such as in what
he denominates a private property democracy, where concentrations of wealth are limited,
large states are heavily taxed, and mutual shares are spread throughout the whole of society,
allowing for a widespread distribution of the overall product. In this way, certain liberties
would fall under this principle and not under the first one, such as economic rights of
property and contract, having as such no priority over the second principle, and thus having
to follow it (in other words, under Rawlss theory, laissez-faire capitalism is not a just
system). It is important to note that this principle, as the other fundamental principles,
applies only at the level of the institutions, not directly to individuals (for individuals,
maximizing the goods of the least advantaged is just one good among others from which
they are free to choose).
Why does Rawls think that his social contract parties will choose these principles?
He believes the problem with the previous social contract theories, the one responsible for
their unjust outcomes, is the fact that the parties had knowledge of their respective positions
(their personal, social, and historical conditions). In other words, their original positions (or
state of nature in Hobbes and Locke) were not fair. To establish a theory of justice as
fairness one needs to start from a fair original position. To solve this, Rawls uses what he
calls the veil of ignorance. Under this veil, the parties are ignorant of the particular facts
about themselves, others, and their society. They will only have a general knowledge of
human psychology and societies to decide between different alternatives to establish the
principles that will rule their social institutions. In this way they are symmetrically situated
and have no reasons to choose arbitrary unjust positions.
With this original position settled, Rawls tests his principles by imagining a
comparison between them and other alternatives (mainly average utilitarianism, the
tradition hes going against), always from the perspective of rational mutually disinterested
parties situated in the hypothetical original position under the veil of ignorance. Under this
veil, the rational decision would be to argue for equal liberties and equal distribution.
However, once the benefit of economic inequalities is acknowledged, fair equality of
opportunity with the difference principle seems more reasonable than equal distribution.
Nevertheless, this second principle must have less priority than the first, because even
though the parties dont know particular facts about themselves, they consider equal free
persons as beings who can revise and alter their final ends and who give first priority to
preserving their liberties in these matters
3
(at least in an advanced and educated society).
The first principle secures their liberties, and as such it has priority over the second one,
which distributes the means to achieve those final ends in a fair and efficient way. This is
why they would choose these two principles over the principle of utility (which is
concerned for maximizing the average utility, not taking seriously the differences between
persons or the importance of equal rights).
Rawls also offers a more systematic way to argue for the principles from the
original position. The fact that veil of ignorance excludes all knowledge of likelihood and
particular probabilities, that the least advantaged position offered by the two principles is
acceptable, and that none of the least advantaged positions of the other alternatives is, make
it reasonable to choose the two principles over the other options (following the maximin

3
John Rawls, A Theory of Justice, 132.
rule of choice). The argument is strengthened by the fact that the decision is one that is final
and cant be changed later (having repercussions not only in ones life but in the lives of
ones descendants as well), ruling out the possibility of a rational party taking the irrational
risk of choosing an arbitrary unequal position with the hope of being favored by it (which
the principle of utility would seem to approve), and makes the maximin strategy the most
rational to apply when choosing.
Another element that is crucial against utilitarianism is the publicity condition,
according to which the fundamental principles must be known to all (which is important for
the parties, according to Rawls, and is desirable because it [embeds] ideals in first
principles with simplicity and stability
4
). So, for example, even though a utilitarian may
accept, with Rawls, that a sense of self-respect or the importance of allowing individuals
develop their plans of life make equal liberties necessary for individuals, he will consider
that it is desirable to establish them only because in that way the general and average utility
will be maximized. The publicity condition would rule out this way of thinking, because it
would pursue one principle while publicly defending others (which would either be done by
spreading false beliefs or by asking people to ignore the teleological principle that actually
rules their institutions and believe in others, making self-respect really difficult for the least
advantaged).
John Stuart Mill had already tried to solve the inconsistency between the principle
of utility and some of our most generally accepted moral judgments (especially those
regarding the equal liberties of persons). To do so, he conceived utility not as maximizing
the overall amount of pleasurable experience or satisfaction of desires but as maximizing
the exercise and development of higher capacities. In order for individuals to be able to

4
John Rawls, A Theory of Justice, 158.
exercise their higher capacities there are a set of liberties that they all must have. These
liberties must be protected by individuals in their public political lives, and therefore they
must ignore the principle of utility in those situations. However, the final purpose of these
liberties is to actually maximize overall utility (his claim is that only in a world of
guaranteed freedom and liberty, utility can be maximized).
Even though Mill argues for the legislators never to violate the principles of liberty
under the claim of the principle of utility, his arguments are not convincing enough. It
seems that under a system that views utility as the ultimate teleological good and
justification, liberties are not as strongly guarded as in one where equal liberties have the
most priority (such as in Rawls). Under utilitarianism, violating an individuals liberties for
the sake of a great overall maximizing of utility seems to be the rational thing to do (even
though our commonly held moral judgments would oppose strongly). Furthermore, Mills
concept of utility seems to favor certain human capacities over others, which would
encourage social institutions to be arranged so that those capacities are developed and
practiced by individuals. In other words, institutions would have interest in controlling
individuals activities and plans of life. Under Rawlss theory, individuals are free to
choose their own goals and plans of life, and as such enjoy more freedom and liberty than
under Mills proposal. Rawlss theory explains our common moral judgments regarding
liberalism in a more satisfactory and less problematic way than Mills.
We have seen how Rawls faces the difficult tension between our commonly
accepted moral convictions and the principle of utility with a new theory of justice that
recovers the social contract theory and modifies it to obtain, this time, a theory that matches
and explains our commonly held moral judgments regarding public institutions. From an
ideal original position of fairness and equality, in which the parties are positioned under a
thick veil of ignorance, two principles are elected over the other alternatives: basic equal
liberties (which matches our convictions of the importance of equal distribution of rights
among individuals) and fair equality of opportunity and the difference principle (which
offer a fair and efficient way to distribute inequalities throughout society). The first one, the
one that has the most priority, offers a convincing way to explain the importance of
individual rights that the principle of utility could not account for (at least not in a
convincing way). The second one offers a way to achieve both the efficiency that the
libertarians and defenders of a laissez-faire economy strive for and the fairness that
egalitarians pursue. With justice as fairness Rawls offers us a theory that can truly
account for our common moral judgments.

Bibliography
John Rawls, A Theory of Justice (revised edition 1999) (Harvard University Press)