JOHN RAWLS THEORY OF JUSTICE IN PRESENT SCENARIO
By Apoorva Yadav,
Final Year Student, National
Law Institute University, Bhopal (M.P)
John Rawls was born in the year 1921 on Baltimore and spent his whole life as on academic philosopher at the elite American University of Princeton. He dealt in his philosophies with the fundamental idea of political philosophy i.e. Justice.
John Rawls gave theories, which were unique in themselves. He was a supporter of the contemporary socio-political synthesis, which combines liberal democracy, the market and the redistribution welfare state.
His academic career started with Justice as fairness in 1958. Then once his major work on ‘A theory of Justice which was published in the year 1971 followed by political liberalism in 1933.
He was against utilitarian principle. His theories are the speculative. He gave a thought experiment and his work is purely analytical construction. He gave a thought experiment principle because he says that it is only for majorities and not for minorities & slaves. And his theory is inclusive of all inequalities, he tries to bring everyone in equal pedestrian.
In the present paper I have attempted to highlight relevance of John Rawl’s in the present context. The concept of Justice is basic of whole legal system. Since centuries a lot many writers have attempted to explain concept of Justice but John Rawls was successfully able to give the theory of Justice.
John Rawls in his celebrated work “A theory of Justice” (1971) has pointed out that a good society is characterized by a number of virtues justice is the primary and indispensable virtue of a good society. In other words justice is necessary but not a sufficient condition of a good society. These who argue that justice should not be allowed to name in the way of social advanced and progressed society the moral risk of causing the moral degradation of society.
According to Rawls, the problem of justice consists in ensuring a just distribution of ‘Primary goods’ which include rights and liberties, powers and opportunities, income and wealth, means of self-respect and so on.[1]
Rawls has described his theory as the theory of pure procedural justice. It means that once certain principles of justice are unanimously accepted the distribution resulting from their application will necessarily just.
He has severely criticized those theories of allocated which ignore moral worth of the individual for the attainment of any procedural predetermined goals. He has attacked utilitarianism because in calculating the greatest happiness of the ‘greatest number’ it does not care if it leads to extreme hardship to any particular individual for instance, one might imagine a state of affairs in which the maximum amount of happiness would be produced and its distribution to a maximum number of people achieved by the enslavement of minority. Rawls has brilliantly agreed that you cannot compensate for the sufferings of the distressed by enhancing the joys of the prosperous.
Rawls has evolved a unique methodology for arriving at a unanimous procedure of justice following the tradition of ‘Social Contract’ Rawls has envisaged an ‘original position’ by abstracting the individual from their particular social and economic circumstances. These individuals are symbolically placed behind a ‘veil of ignorance’ where they are supposed to be deliberating as national agents. They are totally unaware of their wants, interests, skills and abilities as well as of the condition, which lead to discrimination and conflict in society.
But they have an elementary knowledge of economics and psychology and also have a ‘sense of justice’. Each individual tries to maximize his or her well being without being envious. They are self interested but not egoists. They are not prepared to take a risk to or resort to gambling according to Rawls in such a state of uncertainty the rational contractors will chooses the least dangerous path. In other words each individual will place himself in the ‘least recommending the criteria of allocation of the primary goods. Hence each of these will demand greatest benefit for the least advantaged.
RAWL’S THREE PRINCIPLES OF JUSTICE.
Rawls gave his principles of justice and they are as follows
in the following order:
1. Principle of equal liberty
Principle of equal liberty signifies that equal right to most extensive liberty compatible with similar liberty of others which postulate that nobody’s liberty will be sacrificed for the sake of any benefit liberty in this sense implied equal right to political participation, freedom of expression religious liberty, equality before the law, etc.
2.
Principle of fair
equality of opportunity
Particularly for acquiring offices and position
3.
Difference principle
This implied that any departure from equal distribution of the primary goods could be justified only when it could be proved to bring greatest benefit to the least advantaged.
In other words a special reward for extra-ordinary ability and effect of any individual can bettered as just only if it results in the greatest benefit to the least privileged when these conditions have been fulfilled, the criteria of efficiency can be justly applied in a competitive economy. Rawls concept of the chain connection implies that in order to strength a chain, we should start with strengthening its repeat the process by identifying the weakest link on each occasion.
A citizen of a country while applying the principles of justice has to make three decisions[2]- First he has to judge the justice of the legislation and social policies when he knows that his opinions will not coincide with others as all have conflicting interest. Secondly, a citizen must decide which constitutional arrangements are just for reconciling conflicting opinions of justice.
So the complete conception of justice is not only restricted to making and assessing of laws but also ranking procedures for which to be followed thirdly, since the political process is one of the best imperfect procedural justice, the citizen must know when the enactment’s of a certain rule should be done and when not.
Thus the first stage they had to decide upon the justice if political forms and chooses a constitution. They are to design a system of constitutional powers of government and rights of citizen. Here the veil of ignorance is partially lifted. Thus, it can lead to a just and effective legislation.[3]
In providing with just procedure liberties of equal citizenship should be incorporated and protected by the constitution. These liberties in order to make a constitutional democracy must include liberty of conscience and freedom of thought, liberty of the person and equal political right. In order to have a just and effective legal order Rawls says that knowledge of the benefits and interests is required and that men have political tactics in different circumstances.
The second stage is legislative stage, here framing of constitution is visualized with proposed bills are judged from the position of a representative legislator who does not know the particulars about himself. Statues must satisfy both principles of justice and limitation.
Third stage is that a finding whether legislation is just or unjust in relation to economic and social policies. It is to be observed that difference principles obeyed properly.
The last stage is that of application of rules to particular cases by judges and administrators and the following of rules by citizen. In this stage all restrictions are lifted and veil of ignorance is not considered here, general facts of society is made available but not the particulars of own condition.
The four stage sequence is a device for applying the principles of justice. It is a part of justice as fairness.
There occurs a controversy with respect to meaning of liberty several liberties and values come into conflict. Rawls says that the freedom of thought and liberty of conscience freedom of the person and the civic liberties should not be sacrificed to political liberty.[4]
Persons are at liberty when they are free to do something without any constraints for e.g., in freedom of conscience persons have liberty when they are free to peruse their moral philosophical , or religious interests without legal restrictions there must not only be permissible but also sate must lay this duty on others the they will not obstruct this liberty.
Rawls has also stressed on the liberty of others that if rights are unrestricted then they will collide each other for e.g., in a profitable discussion without any specific rules and procedures of inquiry and debate freedom of speech its value. This delegate must decide how various liberties are to be specified so to yield the best total system of equal liberty.[5]
Rawls has also gave importance to inequality in certain cases liberty is unequal when one class of person has a greater liberty than another , or liberty is less intensive then it should be according to lexical order basic liberty (first principle) can be limited only for the sake of liberty itself.
Constraint of poverty and ignorance are also taken into account in Rawls’s theories. He clarifies liberty and worth of liberty. Liberty is represented by complete system of the liberties of equal citizenship, while the worth of liberty to capacity to advance to persons and groups. He says that freedom, as liberty is same for all but worth of liberty is not same for all. Some have greater authority and wealth, and therefore greater means to achieve their aims.
Rawls defines theory of conscience as liberty as applied to religious, philosophical and moral views of our relation to the world. Rawls assumes that it is normal for individuals to affirm such views, which form the ground-plan as to speak, of what he often refers to as their plan of life and of the conception of good. He believes that they are so integral to an individual personality that they are non-negotiable. They are firms of belief and conduct of the protection of which cannot properly abandon. One cannot give up one’s right to like according to ones philosophy of life. They are adequate for the development of moral personality.
Rawls says that parties must choose principle for securing integrity of their religion and moral freedom according to veil of ignorance they only know that they have moral obligations which they interpret in this way. And that equal liberty of conscience is the only answer. He says that people should abide by this and should consent so an unequal liberty only if there is a threat of coercion, which it is, unwise to resist from the standpoint of liberty itself.
He recognizes the principle of paternalism by saying that the principles should be followed by descendants. There rights are assigned to fulfill the principle of co-operation that citizen would acknowledge when each is fairly represented as a moral person.
In this way notion of confessional state is rejected. Also the notion of omnipotent laciest state is also denied, since from the principles of justice it follows that government has neither the right nor the duty to do what it or majority want to do in question of morals and region. Its duty is limited to underwriting the conditions of equal moral and religious liberty.
TOLERATION AND THE CONCEPT OF COMON
INTEREST.
Rawls says that in a just constitution government has no right to suppress religious or philosophical views. Liberty of conscience is limited by the common interest in public order and security. He says that government should regulate individuals of their moral and spiritual interests in accordance with principles to which they want to adhere.
The government’s right to maintain public order security’s an enabling right, a right that the government must have if it is to carry out its duty of impartially supporting the conditions necessary for everyone’s pursuit of his interest and living up to his obligation as he understood then.
Toleration is not derived from practical necessitation or reasons of state. The point coming under this would be generally shared ways of reasoning and plain facts accessible to all. Thus Rawls says, the parties in the constitution convention must choose a constitution that guarantees an equal liberty of conscience regulated solely by forms of argument generally accepted and limited only when such argument a reasonably certain interference with essentials of public order.
In certain cases political parties have observed that toleration is in inconsistent with the principles of justice. In the present portion Rawls has given his opinion in case of toleration of the intolerant.
The question arises whether an intolerant sects has any title to complain if it in not tolerated. Second, under what condition tolerant sect have right against intolerant sects and third when they have not to tolerate them.
The answer to the above questions are that as intolerant sect does not have title to complain of intolerance but there freedom is restricted only when the tolerant sincerely and with reason believe has their own security and that of institutions of liberty are is danger. The tolerant should curb the intolerant is this case only. The principle is to establish a just constitution with the liberties of equal citizenship. The just should be guided by the principle of justice and the unjust have no right to complain.
But, it should be kept in mind that even when freedom of the intolerant is limited to safeguard a just constitution, it is not done in name of maximizing liberty. The liberties of some are meet suppressed simply to make possible a greater liberty for offers. Justice forbids this sort of reasoning in connection with liberty as much as it regard to the sum of advantages. It is only the liberty of intolerant which is be limited and this ids done for the sake of liberty under a just constitution the principle of which the intolerant themselves would acknowledge in original position.
Rawls says that in order to clarify the meaning of liberty limitation one on the participation should be analyzed.
The extent of the principle of participation is defined as the degree to which the procedure of bare majority rule is restricted by the mechanism of constitutionalism. These devices serve to limit the scope of majority rule, the kinds of matters of which majority have final authority, and the speed with which the aims of the majority are put into effect limitation like a bill of rights which may remove certain liberties or separation of power with judicial review may slow down the pace of legislative charge. He gives argument for these limitations.
Rawls says that this extent of principle of participation is assumed to fall equally on everyone and then only these would be easily justifiable to unequal political liberties.
Rawls says that first purpose which these limitations serve is the protection of other freedoms. A constitution, which restricts majority rule by various traditional devices, is thought to lead to a more just body of legislation. In a representatives body government the less extensive freedom of participation is sufficiently outweighed by the greater security and extent of other liberties. Unlimited majority rule is often thought to be hostile to liberties. These restrictions will compel a majority to make deliberate decisions.
Secondly, he says that this principle of participation ensured that the government respects the rights and duties of the governed. We not abandoning the participation but rather we are narrowing or widening its extent where the danger to liberty from marginal loss in control over those holding political power just balance security of liberty gained by greater we of constitution process. He says that giving emphasis. One principle of participation takes the risk to the freedom of the person.
Thus we can say that the principle of participation in a just constitution sets up a form of rivalry for political office and authority by presenting the condition of public good and policies the rival parties seek to gain citizen approval in background of freedom of thought and assembly in which the fair value of political liberty is assured. In a well ordered society representatives must seek to pass just and effective legislation and also further their interests, when the e principle of participation is satisfied all have the common status of equal citizen.
Political justice of the constitution political justice has two aspects arising from the fact that a just constitution is a case of imperfect procedural justice. First the constitution has to be a just procedure satisfying requirement of equal liberty and second, that the just arrangements lead to just and effective system of legislation.
Rawls while describing the principle of liberty with respect to political procedure refers to the principle of (equal) participation. It requires that all citizens are to have an equal right to take part in and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply should be fair one.
The authority to determine social policies resides with a representative body. It has law making powers and policies advance some basic conception of public good. All sane adult has the right to take part in political affairs and the precept one elector one vote is honored elections are free, fair and regularly held. In addition to this there is firm constitution protection for liberties. The principle of legal opposition is recognized without which the politics of democracy cannot be properly conducted or long endure.
Under this, three points are concerned in equal liberty, its meaning, its extent and the measures that enhance its worth.
Meaning-here the precept of one elector one vote is applied. This would avoid gerrymandering[6] and impartial purpose the principle of participation means that all citizens have an equal access to public office.
Each is eligible to join political parties, in qualification off sex.
The constitution must take steps to enhance the value of the equal rights of participation for all members of society. But the main defects of constitutional government have been the failure of fair value of political liberty.
Rights of the principle are protected by the principle of the rule of law. The conception of formal justice, the regular and impartial administration of public rules, becomes the rule of law when applied to the legal system. Rule of law is closely related to liberty. Consider the notion of a legal system and its intimate connection with the precept definitive of justice as regularity. A legal system is a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the basis for legitimate expectations. They constitute ground upon which persons can rely on one another and rightly object when their expectations are not fulfilled. If the basis of these claims is unsure so are the boundaries of men’s liberties e.g.: Rules of games.
The legal order exercises a final authority over a certain well-defined territory. The wide range of activities it regulates also marks it and the fundamental nature of the nature of the interest it is design to secure. These features simply reflect the fact that the long refined the basic structure within which the pursuit of all other actions takes place.
Rule of law required that those who enact laws and give order to do in good faith. Legislatures and judges, and other official of the system must believe that the laws can be obeyed: and they are to assume that any order given can be carried out. More over not only must the authorities act in good faith but there good faith must be recognized by those subject to their enactment. It also intents to preserve to integrity of judicial process.
Justice as fairness makes a constitutional democracy. The basic liberties of a democratic regime are most firmly secured by the conception of justice. By the priority of liberty Rawls means the precedence of the principles are in lexical order and therefore the claims of liberty are into play. The basic liberty may either be less extensive though still equal or they may be unequal. If liberty is less extensive, the representative citizen must find this a gain for his freedom on balance: and if liberty is unequal, the freedom of those with lesser liberty must be better secured. In both instances the justification proceeds by references to the whole system of the equal liberties.
Rawls justifies in equalities on the ground that the inequalities would be benefiting the least advantage and formalities the priority of liberty.
First Principle
Each person is to have an equal right to the most expensive total system of equal basic liberties compatible with a similar system of liberty for all.
Priority Rule
The principle of justice are to be ranked in lexical order and therefore liberty can be restricts only for the sake of liberty. There are two cases: a) a less extensive liberty must strengthen the total system of liberty shared by all and (b) a less that equal liberty must be acceptable to those citizens with the lesser liberty.
After detailed analysis of John Rawls concept of equal liberty it will be appropriate to say that his essay and work on justice cab still be seen applicable in present scenarios. His work reflects the picture of 21st century. His ideas for the uplifting of minority group are indispensable for equality. He is able to justify fully his principle of inequality. His idea that difference will remain until the inequalities are not curbed is truly applicable. His theory is also relevant when he talks about the law making body and representatives.
He is more concerned for the poor class. He justifies his theory saying that riches will continue to have the ability to pursue life-plans which is denied to poor and is the problem of equality. Where is equality?
He has given a formal theory. I would say that his ideas are instructive and everyone should read his idea in the concept of justice. His ideas are also, important for lawyer. His ideas can be applied to various legal problems. The said theory can also be applied to the Reservation policy of Backward Classes by the Government. Applying Rawls theory it means that if discrimination is being done by way of allotment of seats to these reserved classes than it should lead to overall development of them, the government should ensure that this reservation is beneficial for these classes otherwise it would lead to widespread outburst.
Rawls conception on the work of judges is very relevant as he says that people are fully relied on them and they should construe justice after taking into accounts all the evidences available with them. Thus his idea is reflected in present context.
[1] Eddy Asirvatham , Political Theory
[2] John Rawls, A Theory of Justice pg. 195
[3] J.M. Buchanan and Gordon Tulluck, The Calculus of Consent (Ann Arbor, University of Michigan Press, 1963).
[4] Constants essay Ancient and Modern Liberty (1819)
[5] Alexander MeiKlefjohn, Free Speech and its Relation to Self Government ( New York, Harper and Brothers, 1948), ch. 1 , sec 6
[6] W.S. Vickerey “On the prevention of Gerrymandering Political Science Quarterly Vol. 76. (1971)