JOHN RAWL’S THEORY OF JUSTICE

John Rawls is the twentieth century political philosopher who has attempted to develop a theory
of justice in his own unique way. Rawls conception of justice is to generalise and take to higher
abstraction the theory of social contract as advanced by Locke, Rousseau, and Kant. The
original contract represents the basic structure of society in achieving justice. As Kant had said
that man in his original position has inalienable rights and freedoms before enters into a social
contract, similarly Rawls conceives principles of justice from the standpoint of free and rational
persons who are concerned to further their own interests accepting the proposition that being
free and equal at the initial level, the regulations which they form to enter into associations to
form the government for social cooperation is justice as fairness. These associations or
government assign basic rights and duties and determine the division of social benefits. There
is a veil of ignorance according to Rawls, before people choose principles of justice for the
reason that no one knows what his place in society prior to forming a social contract as people
would be in a state of nature which is a hypothetical situation. The veil of ignorance ensures
that no one is advantaged or disadvantaged, nor are they aware of their social status, neither
are people able to design principles in one or other’s favour, principles of justice are the result
of fair government or bargain. The original position is the initial status quo and thus the
fundamental principles reached in it are fair. The principles of justice are agreed to be fair in
the initial situation. The concept of justice chose at the initial situation succeeds in the
institutions of law such as constitutions, legislature, statutes, etc. The original position once
determines the obligations and principles, the people can say that they are operating on the
principles that they would agree as if they were fair. The choice of principles would impose
restraints on the freedom of persons, whoever, whatever the status of the person in society is,
the assumption is that the associations or state and its various legal institutions is essentially
voluntary towards achieving freedom and equality as they are autonomous and the restrains are
self-imposed.1

THE FEATURES OF JUSTICE AS FAIRNESS ARE:

1. Parties in the initial situation are rational and mutually disinterested,

1
Political Theory, Vol. 10, No. 1 (Feb., 1982), pp. 134: Sage Publications Inc.
 2. Persons who look themselves are equals are entitled to press their claims upon one
another for the principle that some may be entitled for lesser prospects than the greater
sum of advantages enjoyed by others.2
3. Principle of utility is incompatible with the concept of social cooperation among equals
for mutual advantages.
4. The persons at initial situation would choose two different principles, first requires
equality of assignment of basic rights and duties, while the second, social and economic
inequalities are just only if they result in compensating benefits for everyone, in
particular to the most disadvantaged members of society, and
5. Institutions cannot be justified on the ground that hardships of some are offset by a
greater good in the aggregate, rather the distribution and division should be such that
every person willing cooperates in the distribution of obligations. Rawls two principle
of justice and the first statement of the two principles reads as follows:

First- Each person is to have an equal right to the most extensive basic liberty compatible with
similar liberty to all 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.3

The final version of these two principles explained by Rawl’s as follows:

FIRST PRINCIPLE- Each person is to have an equal right to the most extensive total system
of equal basic liberties compatible with a similar system for all.

SECOND PRINCIPLE- Social and economic inequalities are to be arranged so that they are
both:

(a) The greatest benefit of the least advantaged, consistent with just savings principle, and
(b) Attached to offices and positions open to all under conditions of fair equality of
opportunity.

FIRST PRIORITY RULE (THE PRIORITY OF LIBERTY)

The principle of justice are to be ranked in lexical order and therefore liberty can be
restricted only for the sake of liberty.

2
The Modern Law Review, Vol. 44, No. 6 (Nov., 1981), pg 47
3
The Modern Law Review, Vol. 44, No. 6 (Nov., 1981), pp. 105
 There are two cases:

(a) A less extensive liberty must strengthen the total system of liberty shared by all;
(b) A less than equal liberty must be acceptable to those with the lesser liberty.

SECOND PRIORITY RULE (THE PRIORITY OF JUSTICE OVER EFFICIENCY AND

WELFARE)
The second principle of Justice is lexically prior to the principle of efficiency and to that of
maximizing the sum of advantages, and fair opportunity is prior to the difference principle.
There are two cases:

(a) An equality of opportunity must enhance the opportunity of those with the lesser
opportunity
(b) An excessive rate of savings must on balance mitigate the burden of those bearing this
hardship.

GENERAL CONCEPTION
All social primary goods-liberty and opportunity, income and wealth and the bases of self-
respect are to be distributed equally unless an unequal distribution of any or all of these
goods is to the advantage of the least favoured.

By way of a comment Rawls theory of justice is an admixture of metaphysics, economics

and politics which is very difficult to comprehend. To simplify, in Rawls theory of justice
one has to bear in mind the nature of man prior to his entering into a social contract which
Rawls reasonably conceives that as he was living in a state of nature, therefore, there were
fetters on his choices of the form of government, the constitution, laws and the type of
restrains which he may impose upon himself.4 Once he enters into a social contract or
compact for governing himself and others the justice as fairness should inform the legal
institutions. Virtually, man was living behind veil of ignorance which happened to be his
original position. However, from his original position, the man’s voyage for imposing
restraints and obligations starts since he conceives rights, duties, sharing of goods and
benefits for which Rawls conceives his principles of justice as fairness. The veil of
ignorance and the original position are hypothetical and men are living in terms of their
statutes and are ignorant of their own particular aggregation of them. Fairness is the
outcome of prudence, and principle of justice, ditched by prudence, are those which

4
The Cambridge Law Journal, Vol. 40, No. 2 (Nov., 1981), pp. 366
 hypothetical rational persons would choose in a hypothetical original position of equality.
People in original position area assumed to know certain things, for instance general
psychology and the social sciences but as they are living behind the veil of ignorance which
keeps them away from understanding their personal conditions, places in society, material
fortunes, etc. In other words all people behind the veil of ignorance may be possessing
various types of material conditions, places in society, material fortunes, etc. Once basic
principles of justice are to be employed, the personal status, property and other conditions
are to be excluded for achieving generality and validity. The form of justice is required to
benefit everyone, i.e. maximization of the minimum, the primary social goods included
basic liberties, opportunities, power and minimum of wealth.5 Therefore, Rawls first
principle of justice stresses that each person is to have an equal right to the most extensive
total system of equal basic liberates include basic equal liberty of thought and conscience,
equal participation in political decision making and the rule of law which safeguards the
person and his self-respect. This may be termed as distributive justice. The second principle
accordingly takes the shape of social justice in the sense that social and economic
inequalities are to be arranged so that they are not:

A. To the greatest benefit of the least advantaged consistent with the just saving principles
and
B. Attached to offices and positions open to all under conditions of fair equality of
opportunity. The just saving principle is a principle to secure justice for generations and
is categorised as each generation must not only preserve the culture and civilization and
gains thereof, but should maintain intact those institutions that have been established
and also accumulate real amount of capital accumulation. There has to be constitutional
convention to settle a constitution and procedures for the purposes of achieving just and
effective order, which has to be followed by legislation and other rules and regulation.

NOZICK’S THEORY OF JUSTICE

In brief Nozick’s theory is as follows. Man has certain natural rights, including the right to
acquire property. These rights must not be violated by anyone, without the consent of the
right holder. They act as moral ‘side constraints’ on action. To be justified, a state must be
such that it would arise from a no-state position (the state of nature) without infringing the
rights of anyone who did not consent, only a minimal state offering protection against

5
The Philosophical Quarterly (1950-), Vol. 31, No. 124 (Jul., 1981), pp. 150: Oxford University Press
 violence, theft and breach of agreement would emerge in this way. Any further state if not
justified, particularly, a state distributing wealth is not justified, and taxation to bring this
about is the equivalent of forced labour.6 The only legitimate way of coming to hold
property is by just acquisition, just transfer, or rectification of a past injustice. Nozick extols
the virtues of eighteenth century individualism and nineteenth century extols lassies-faire
capitalism. It has certainly represented profound shock to legal theory. The book is a
provocative essay and one which in my view has had a very considerable impact on political
reality. After reading Nozick one may ascertain where many of the ideas of Thatcherism
have derived their origin, although they have undergone some modification in the process.
Nozick’s views, to the extent that classification is all legitimate, may be referred to as
libertarian. He questions whether liberty and equality are compatible and concludes that
they are not. His control thesis rests on the proposition that the individual is inviolable. This
point is crucial to an understanding of his theory.7 Let us look at his theory in more detail.
In hi critique of Rawls, as we have seen, Nozick rejects any ‘patterned’ conception of
justice. A patterned conception is one that views justice as a matter of the pattern of
distribution of benefits and burdens that is achieved, for example the Marxist idea of
distribution according to need. As state he prefers his ‘historical entitlement theory’, the
content of which would be appropriate to outline as follows.

NATURAL RIGHTS
Rather than examine the pattern of distribution, Nozick seeks to concentrate on the question
of how the distribution came about in the first place. If that distribution is brought about
entirely as a result of freely entered into transaction then it is just. He puts it thus, ‘If each
person’s holding are just then the total set of holdings is just’. The individual has certain
rights, including the freedom from violence against his person.8 The freedom to hold the
property, and the freedom to enforce his other rights. Concentrating on the right to hold
individual property, a person can legitimately acquire property in three ways.

BY JUST INITIAL ACQUISITION

This details the circumstances under which a person may acquire ownership of formerly
unowned resources. This right of appropriation follows Locke. Locke had the proviso that
‘as must and as good be left for others’. Nozick has a more limited proviso merely that the

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documents.routledge-interactive.s3.amazonaws.com/.../A2/.../JusticeRawlsNozick.pdf
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Id.
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The Philosophical Review, Vol. 92, No. 4 (Oct., 1983), pp. 504
 remainder be left for other, and not necessarily as much as good. In many case, MacPherson
says that the Lockean proviso ceases to be relevant once money is invented, since there is
always some of that property available.

BY LEGITIMATE TRANSFER
This details the means by which ownership of resources may be transferred from one to
another. If I choose to give you some of my property, or we agree to swap bits of our
property, then you receive my property legitimately by transfer.

BY RECTIFICATION OF PAST INJUSTICE

This details the action to be taken to rectify a distribution which is unjust in terms of the
first tow principles. If I acquire property in an unjust manner, it can be taken from me and
restored to its proper owner. These rights cannot be violated without a person’s consent:
this is his meaning of the distinctness of persons. A person’s separateness and individuality
must be respected, he must not be treated as a means to an end. Each person has exclusive
rights in himself and no rights in others. What is important is that in the pursuit of our own
aims we do not violate the rights of others as we have seen and state above, Nozick’s theory
originated in a critical evaluation of Rawls. He has critiqued Rawls on the ground that
individual abilities are not common assets to be explained for the benefit of the least
advantaged. For this reason, Nozick rejects goal based principle of justice. These are
principles which a judge a society by reference to whether or not it matches a particular
goal, a particular end state, such principles shall require the right of the individual to be
sacrificed for the goal of the desired end state, the person being treated as a means to that
end. The Wilt Chamberlain example, below, is a graphic illustration of Nozick’s point. But
then such an end state, goal based principle, Nozick insists that a historical entitlement
principle be chose.9 This means that a situation is judged not with reference to whether or
not it matches a given end state but rather with references to whether or not it came about
justly, with no infringement of anyone’s rights. Under this entitlement principle, people’s
rights are respected, they become moral ‘side constraints’ which forbid decision and actions
which violate them. Natural rights can only be infringed with the consent of the right holder.
These rights are the rights of the liberty and the right to property. Their interrelationship is
interesting. The right to liberty is defined by references to the right to property and the right
to property is the result of the exercise of rights in one’s own labour. The right to property

9
Supra 3
 is then an expression of the right to liberty. Nozick believes that private property increases
freedom. The idea of Nozick that when one mixes one’s labour with an object that is not
owned, natural talents and abilities are not possessed as a result of any labour but as a result
of natural and therefore, morally arbitrary distributions.

THE MINIMUL STATE

Nozick envisages a state of nature, asks whether any state would emerge without haring
people’s right. In fact, a state will emerge, through an ;invisible hand’ process, that is one,
which occurs without anyone intending it or aiming for it by morally permissible means
and without anyone’s rights being violated. In brief the process is as follows.

1. To protect themselves, people form protective agencies, pooling their protective

resources and leaving themselves free from fear of attack.
2. T each region, one protective agency becomes dominant, but there are still
independents.
3. The dominant agency will prohibit independents from enforcing their own rights, since
they will distrust the independents’ procedure for determine violations. This prohibition
involves infringing the independent’s rights and demanding compensation, thus
compensation is ‘paid’ by protecting the would be independents as well.

The dominant agency develops into a ‘night-watchman’ state, carrying out a minimal range
of duties, protection from theft, violence, fraud, and breach of contract. This state claims a
monopoly of force. If the state engaged in a patterned distribution then it would be
exercising excessive powers as it would entail constant interference with liberty. Nozick
does, however, recognise the need for some state, otherwise there would be anarchy.

CONCLUSION
The difference between Rawls and Nozick is in their starting points. Rawls starts from a
standpoint of equality, and asks for reasons why we should accept inequality. Nozick starts
from the idea of rights, with a consequence that a man owns the property he has worked for
and created. For Rawls, the rich man must show why his wealth should not be taken, for
Nozick, it cannot be taken without his consent. Wealth is created by individuals and they
that create have rights over it. Hence Nozick maintains that one is not entitled to regard
society’s total wealth as a cake to be divided up. Nozick’s theory is very controversial,
because it could justify very unequal distributions of property that may not respect what
people deserve, nor what they need, nor give any kind of priority to people who are worse
off. If he is right, redistribution cannot be justified except to rectify a previous injustice.
Rawls challenges Nozick’s defence of property rights. Much of what people own is the
result of people’s social position and their natural talents, both of which are morally
arbitrary. Therefore, any inequalities in ownership are unjust. Furthermore, what rights
people have to property can’t be decided before deciding on the principles of justice.
People don’t have a right to the earnings their talents bring them, only to that share which
they keep according to the principles of distributive justice.

Nozick responds that each person’s talents and abilities belong to them. They therefore
have a right to keep (or do whatever they want with) whatever these talents and abilities
gain for them. To forcibly redistribute what they earn is to fail to respect their autonomy.
But even if people own themselves, we can argue that this doesn’t entail that we have the
right to do whatever we want with all of our property. A reinterpretation of ‘justice in
transfer’ could place restrictions on property rights. Nozick supposes that any transfer, if it
is freely consented to, is just. We can argue that the rules governing transfer should be
sensitive to many political values, not just liberty. The rules we currently have (regarding
tax, inheritance, transfer between married couples, gifts and so on) are a product of
balancing many considerations relating to patterns of production and work, family life, and
political institutions.

Furthermore, we can interpret individual liberty as a goal to be pursued, not a constraint. If

the value of justice rests on liberty, and Nozick is right that property is so important for
liberty, then surely we must ensure that everyone has sufficient property to be free.
Redistribution of property from the rich to the poor will equally be a redistribution of
liberty. But this is a patterned principle of justice. A final objection to Nozick is this:
History shows that a great deal of initial acquisition of property was unjust, based on theft,
exploitation, slavery and colonization. All property that derives from unjust acquisition is
unjustly held. You do not have a right to transfer property you stole, nor does the new
owner have a right to what they receive. But, of course, we cannot now rectify the injustice
of the past. We have no way of establishing what belongs to whom. So Nozick’s theory has
no application if we do not start from a just beginning; we must therefore work out a
different theory of justice that is not so sensitive to past injustices that we cannot correct.
The historical nature of Nozick’s theory turns out to be a weak spot.

Due to the above-mentioned reasons Rawl’s theory of justice is favoured.