Early Rawlsian Anarcho-Liberalism

Early Rawlsian Anarcho-Liberalism

In light of questions regarding Social Contract Theory, I thought it might be useful to resurrect sections from my now 20 yr. old M.A. thesis on the development of Rawls’ thought up to 1989 (until now protected under lock and key due to its overly compelling content).

The first section summarizes his seminal article, “Justice as Fairness” (in The Philosophical Review 67, 1958). The second section covers part of my critical explication of his first period of thought (1951-63), specifically by characterizing the contract process. The latter section is, I believe, eloquently interesting and dizzyingly original. The former, however, but required reading. I will forego notation (all quotes are from Rawls).

  1. Justice as Fairness

The primary thesis of this article is to demonstrate that the idea of “fairness” captures the central essence of the concept of justice. Secondarily, it is directed at establishing the superiority of a social contract account of justice over that offered by utilitarianism. The main subject of analysis is to be considered as distinct from issues related to particular actions or persons, by its being delimited to “the sense of justice as applied to practices, since this sense is the basic one.” Two principles are posited as “typical of a family of principles normally associated with the concept of justice.” The first is explained as applying to the formal structural nature of practices themselves, and is thus purely abstract:

[1] each person participating in a practice, or affected by it, has an equal right to the most extensive liberty compatible with a like liberty for all.
[2] inequalities are arbitrary unless it is reasonable to expect that they will work out for everyone’s advantage, and provided the positions and offices to which they attach, or from which they may be gained, are open to all.

Both are meant to express three interrelated ideas essential to the very concept of justice, namely: “liberty, equality, and reward for services contributing to the common good.” As a technical term with appropriate abstract reference, given that the only relevant issue is that of justice as a virtue of social institutions, “person” is used as a term that “may refer to nations, provinces, business firms, churches, teams, and so on […] although there is a certain logical priority to the case of human individuals.”

The principles are not to be thought as derivative from a priori principles of reason or as otherwise in themselves intuitively self-evident. Rather, their basis of justification is to be understood through the construction of a thought experiment, wherein conditions are laid out appropriate to what would constitute an ideal contractual forum for discussing the matter. As the main modification to be made to the utilitarian principle, such conditions would preclude “justification of inequalities on the grounds that the disadvantages of those in one position are outweighed by the greater advantages of those in another position.” In other words, everyone must benefit from inequalities if they are to be considered justifiable. That inequalities must be granted as having some effect in this theoretical setting is nothing beyond an acknowledgement of the necessity to make “concessions to human nature.” Mutually self-interested associations (comparable to families) composed of rational individuals who are non-envious, having roughly similar needs and abilities, satisfy their ongoing complaints about already established social practices by volunteering to join into formal discussions where they would forward principles under which their own and all other complaints in general ought to be evaluated. The restrictions entailed by this “general position” would lead the representative persons into a purely practical intersubjective attitude by which to evaluate the reasonableness of their own complaints, i.e. an impartiality whereby once proposed the person’s principle would henceforth also be acceptable even as the basis upon which “his enemy were to assign him his place.” This hypothetical attitude is to be imagined as analogous to having a well-reasoned morality, just as having a morality is analogous to “having made a firm commitment in advance.”

It is noted that this way of coming to comprehend principles of justice is related to a tradition extending back to the Greek Sophists’ appeal to prudence. However, differences are highlighted, especially in regard to the most recent variations of that tradition referred to under the rubric of “game theory”. While the notion of a “game” is relevant to the conditions of negotiation, it has to be understood in a way that is first and foremost strictly related to the concept of justice in and of itself. In particular, neither a general theory of human motivation is assumed, nor is there any preview as to which specific societies’ practices are the most justifiable. As well, the account is in no way to be characterized as merely “fictional”; it is rather meant to bear directly upon any already established social situation, and is to be understood as “representing the actual quality of relations between persons as defined by practices accepted as just.”

The implicit sense in which “fairness” is found to describe the solution to this thought experiment serves as sufficient ground to induce the notion of “fair play” as a prima facie social duty, and hence also a right. A social basis for moral obligation is thereby established. Nonetheless, it is admitted that this is an “extended” way of employing the “ordinary” notion of fairness. Such is to be noted in as much as the governing idea that it is “not a matter of choice” by which we must ultimately agree to consent to the notion of fairness (i.e. to be moral) is not one entailed by that notion in and of itself. But given its intuitive relation to justice, the extension may be superinduced upon the reasonable assumption that “a resort to coercion” would in principle otherwise be a procedurally sound option, and that this is intuitively unacceptable.

The concluding sections of the article focus on why this contractual account is a superior one to that of utilitarianism, showing how the latter fails to place sufficient stress on the central role of fairness. The example of slavery, as an intuitively unjust practice, is shown to be fully disallowed on principle alone through the fairness analysis. While the utilitarian may want to acknowledge the role of fairness, so as to guarantee absolutely a judgement in theory against such practices as slavery, the only means by which he can do so are unsound: “it is a mistake to resort to the urgency of feeling; as with the appeal to intuition, it manifests a failure to pursue the question far enough.” Instead, ethical theory must not merely direct itself to a general conception of justice and rely otherwise on matters of moral personality, it must focus fully on the central concept proper. The analysis must accordingly be as universally relevant as is the concept of justice itself.

  1. Rebels without the Clause

In order to be clear about Rawls’ first period it would be important to distinguish it from aspects of his subsequent thought. First of all, the “general position”, in spite of its obvious connections, is in fundamental respects distinct from that of the later “original position” (herein referred to simply as OP, and its members as POPs). For the purpose at hand, the most important difference is that it is in fact a general position, indicating no theoretical priority to the society which it addresses—indeed it itself is that society. Put another way, the general position might be viewed as an ongoing position, sharing as much with the later notion of a “well-ordered society” (WOS) as it does with the OP. Its members know who they are and what in particular they want, whereas POPs have no clue who they are and know only that they want something, but not what. Unlike those in the general position, however, members of a WOS are not in a position to come to a collective agreement about what basic principles of justice they will accept to govern the structure of their social practices; instead, we are to imagine that a certain few among them have already come to such agreement through their previous personae as POPs. The point of the matter is that there later occurs a division in theory of the practical labour going on in the general position, through the separation of the parties into POPs and members of a WOS: the former reveal the formal issue of rational deliberations about justice, while the latter represent the substantive matter of (ideal) compliance with just practice.

In contrast to this later separation of issues, for participants in the general position there remains a sense in which they are never out of the position of deliberating about what are the most basic principles of justice. One might view the general position as itself a special sort of practice, where the parties attempt to comply with just (well-reasoned) deliberation even while they might otherwise remain engaged in social practices the justice of which has yet to be demonstrated. That is, the parties are participating in the praxis of practice, if you will. Within the already established social system, we are to imagine that an informal or customary version of such conduct already exists in as much as “we can imagine that from time to time they discuss with one another whether any of them has a legitimate complaint against their established institutions.” The general position can thus be said to represent the formal establishment of such discussions in terms of an institutional setting. Now while for practical, or perhaps more correctly, provisional theoretical purposes we imagine the parties coming together as a society and in a relatively brief space of time approximating a fulfillment of deliberations on the matter, there appears a recursive loop in this characterization of social contracting which has the potential of setting it apart from others. As already ongoing, “a society of persons amongst whom a certain system of practices is already well established”, the general position is yet also to be construed in thoroughly hypothetical terms: “in contrast to the various conceptions of the social contract, the several parties do not establish any particular society or practice; they do not covenant to obey a particular sovereign body or to accept a given constitution.” Even to the parties themselves, therefore, the general position postulates a recognition in principle of the need to conceive of a universally relevant procedure for settling issues of social practice. They are not determining what “society” is, but rather how social practice ought to be structured. With a view to their already established social system, which Rawls indicates may represent anything from a neighbourhood of families through on up to “every peoples”, the establishment of a general position premises the parties’ qualitiatively re-establishing the system itself. Such is done by their consciously and collectively seeking to decide what are to be the basic principles upon which the system is to be (re)ordered, even while in doing so “they do not make any specific agreement, or bargain, or adopt a particular strategy.” The system will subsequently oblige their compliance on the newly originated moral basis of their having had a part in, and having agreed to, the formulation of its governing principles—principles, that is, upon which it was morally regenerated. Nonetheless, there remains an interesting paradox within the re-established system in the sense that, as a system that was established prior to the introduction of those principles, it would not in itself be one to which the parties are or were ever morally obliged to agree.

The agreement entered into, therefore, occurred without obligations of any socially established moral importance; but once entered it itself marks the creation of such importance. The import is not of their agreeing to be obliged to the already established social system per se, but rather to the principles upon which its structure is to be reformed. Thus, it is possible to imagine that while the parties may agree on the principles, they forever disagree fundamentally about the actual system. In that case, they remain in the general position of agreeing to continue as members of a general position—of agreeing to disagree about the system, so long as this is now done in terms of principles rather than brute claims of self-interest. In contrast, concurrent with their agreeing on principles of justice POPs also come to agreement about an ideal WOS structure, with the consequence that members of the resultant society are in principle always already in basic agreement about the system itself.

The significance of this differentiation from later developments is that in the general position much more is left open for a theoretical consideration of ongoing practical deliberation. For example, agreement about what in fact the already established social system actually was, and therefore what it is and what it should become, need not be assumed. There need not be a conception already in mind, in other words, of what it is that constitutes the parameters of a “society”. Because it was never an element of the construction that these persons mutually agree about whatever it is that was already established (indeed, it must be assumed that there is sufficient disagreement to motivate collective negotiations), but simply about the need for principles upon which that establishment (whatever it was) will on future occasions be addressed, it is open for us to imagine, say, some members of the general position claiming that strangers, previously construed by various others as being non-members, ought in principle to possess rights of membership which those same others must henceforth recognize.

Advocates of strangers’ rights would be in the righteous position to insist that persons who were previous not participants in the established social system now have a basis within it from which to make claims. The advocates might, perhaps, have acknowledged that these others were without any immediate right to membership in the initial setting of the general position. However, in as much as their own group-interest remains one which is in basic conflict with social arrangements of the type that previously denied those others a way to participate, strangers’ advocates would reject the claim that previous participation is a necessary criterion for future membership. Other groups might continue to have an interest in making such a claim. Nevertheless, as pursuant to such original disagreement, when the advocates agreed to the principle of “each person participating in a practice, or affected by it, has an equal right to the most extensive liberty compatible with a like liberty for all”, they were agreeing to something which gave (in principle) rights of membership to strangers—at very least on those occasions where such persons have been (or will be) affected by the given society’s established (or proposed) institutions. Subsequently, they may claim that if this was not what they agreed to, then they never agreed to any principles in the first place.

If membership in the general position, like citizenship in a state or partnership in a business (but more fundamentally than these), denotes a person’s official status as a “participant”; if in conjunctgion with a concern in principle for both those participating in and those affected by social practice “it is also necessary that the various offices to which special benefits or burdens are attached are open to all”; and finally, if the general position is framed “so that it will apply when the full complement of social institutions already exists and represents the result of a long period of development”, …then the office of being a member of the re-established society, even while not of the initial general position itself, ought to be one opened to parties merely affected by that social system. For if we want to respect such persons as moral beings, the conditions must be there upon which they may become participants and ahve the opportunity to resolve their complaints (or, if the effect was beneficial, to contribute to our society’s common good as reciprocation for the reward it has bestowed upon them). A full complement of social institutions would, therefore, apparently have to be principled upon establishing the practice of extremely open membership, the only possible exclusions being those persons who have not been affected by the practices of that social system.

On the basis of the above reasoning, unless less broad-minded members would agree with the advocates that the negotiation of principles was not in fact completed—or at the very least, that the established system to which they apply is not “in principle” a closed one—the advocates might henceforth exempt themselves from any social obligation dependent upon the general position (which they were not obliged to be in in the first place), and yet continue living in the already established social system. As rebels without the clause, they themselves would thereby become strangers from within. Other “in principle” disagreements by other members on other matters might yield the same sort of dis-position. For instance, groups of persons who read the “or affected by” clause as indicating that future generations, the mentally or physically disabled, or those unrepresented for other reasons must in principle henceforth be given direct and equal consideration might find themselves up against other groups who do not view their institutional obligations in that way. If such attempts to represent those whom others are interested in dismissing as “third parties” were denied, the surviving members of the now less than completely general position would nonetheless still face the practical problem of subsequent and ongoing difficulties in dealing with these now non-disposed groups of persons. To complicate the matter further, some continuing members may be unable to view them as non-members, and might continue on within the limits of the agreement speaking on their behalf due to ties of friendship and respect which happened to develop between them during the previously more complete arrangement. The more recalcitrantly self-interested parties might, however, deny the legitimacy of such other-directed claims, thereby fostering even more dispositions. Thus, to avoid a reduction into absurdity, it is more useful to imagine that the general position might continue its negotiations on an ongoing basis. This it could do by virtue of its members taking the “or affected by” clause as seriously as they take that of their own status as already established participants.

In contrast to this whole scenario, upon the development of an OP/WOS differentiation in the next period, much in way of those interests held by the likes of strangers and their advocates are undermined and written out a fortiori, as will be seen later on. The point of the discussion thus far has been to show not only how it is appropriate, but also why it is more reasonable, to imagine Rawls’ initial “general” position as an ongoing one in which full agreement on the systematic context, if not the principles themselves, might in principle never be reached. Indeed, Rawls himself states that his purpose is not that of offering “a proof that persons so conceived and circumstanced would settle on the two principles, but only to show that these principles could have such a background…” Hence, it would seem that we are allowed to continue imagining it, after the above due reflections, as a truly general one, i.e. as (potentially) “complete” in respect of its constructive capacity to incorporate the broader range of deliberations about the justice of social institutions. Such would also lend to the account an order of relevance appropriate to the broadest spectrum of compliance issues.

What I will now examine is an issue present even in the description of an ongoing general position which, I will contend, may precipitate “in principle” dis-positions not wholly dissimilar to those avoided by the above. As mentioned earlier [in the thesis], this issue involves the notion of representing persons in the basic situation of contractual moral agency most fundamentally in but the terms of each always being members of some respective “group”, and for the purposes of social cooperation committed only to a group-interest. By his first presenting us with the vision of a general position of “mutual self-interest” in the sense of rational egoism (where, incidentally, the formative psychological conditions for a sense of justice are by definition completely lacking), Rawls offers us as a qualitatively tempered notion the view that “one can form a more realistic conception of this society if one thinks of it as consisting of mutually self-interested families, or some other association.” To justify my “ongoing” reading of the general position, I simply assumed that the order of association was that sort amongst which one might find a group whose interests include a concern for those society tends to exclude as strangers, etc. As a case of such an order, the plurality of what are commonly referred to as “non-governmental organizations”, or NGOs, include ultra-societal groups such as Amnesty International, Oxfam, and Tools for Peace, just as they include the National Rifleman’s Association or expressly insular ones like the Aryan Nations. While the ruling “self-interest” of the hypothetical group in question was also an other-directed one, there is nothing in Rawls’ account to rule out such an interest in the form that it was presented. This is an important point, for the others to which their interest is directed are not those originally in the (initial) general position, so it is an interest which would put them in potential conflict with these others. Rawls will for some time, even if infrequently, continue respecting this dimension of interest. For instance, such is done in his first renderings of the OP, where POPs “are assumed to take no interest in one another’s interests (although they may have a concern for third parties)”. In any case, Rawls needed to present a non-egoist scenario so as to “form a more realistic conception of this society”; that is, in order to effect an implication that, at minimum, as individuals these persons already possess the basic capacity for authority and association guilt—i.e. the necessary grounds for the complete moral feeling of principle guilt, which later compliance with the agreement would depend. So the cognitive basis for an interest in others—for an interest in persons “affected by” a society’s practices—is evident.

I think I’ll break the paragraphs into smaller chunks. I’ll also add italics where appropriate (it was printed back in the day on an old 9-point printer that didn’t have such luxuries). Anyhow, hope it’s still relevant…


justice is a fun concept… of course Thrasymachus was correct

“interest” in others…


Ya, if only those strangers would cease showing us their might!!

So, my brain is pretty fried right now. But if I were to say that I favored a GP within a WOS and I think that Rawls mistakenly veered away from that in his POP would that be consistent with the communitarian view? I normally echo Sandel, but that deals with Rawls at a later time-point than this essay so I’ll stick within a broader narrative and not anachronistically pigeon-hole myself.

Hmm. Well, the WOS is already principle-governed, so the GP wouldn’t have anything to be determining in that sense. Perhaps the GP could be considered a Well-Ordering Society, in which case I think there would be greater linkage to communitarianism available. For instance, there would no longer be need for the OP to be able to lay claim to all natural assets in the basic structure, etc., as the basic structure is not delineated. But the bounded self still persists more or less, even though nominally group-dependent. No necessary connection to the wider community is required, though over time perhaps this would occur in way of a connection to the GP process itself…

damn, still gotta chop up those paragraphs…