3.

Theory of Justice
3. JUSTICE
JUSTICE
"Justice is the first virtue of Social Institutions, just as truth is to systems of thought."
"People will adhere to social norms only if they find it just"

1. John Rawls uses the methodology of Reflexive Equilibrium (in contrast to Socratic Dialectics),
to arrive at his principles of Justice in book "A Theory of Justice" (1971).
2. Key phrases:
1. Greatest Philosopher of 20th Century
2. Revived Political Theory (Philosophy)
3. Contemporary Political Philosophy is Footnote to Rawls
4. Reference Point to all (Sen, Nozick, Dworkin, Berlin, Kimlicka)
3. In doing so he revived Political Philosophy, which suffered a body blow with rise of
Behaviouralism.
4. Context
1. He was writing in the context of social unrest (Black movement, Disarmament movement,
feminist movement, Protest against Vietnam War etc.)
2. Death of Political theory due to Behaviouralism
3. Before him Bentham's Utilitarian Justice (GHGN)
5. Inspiration
1. Rawls was inspired by Immanuel Kant's emphasis on human dignity. (Each person
possesses inviolability founded on the principles of Justice)
2. He also revived the social contract tradition which has roots in Hobbes, Locke, Rousseau.
6. How he arrives at it---- follows "Consensual approach: People will adhere to social norms
if they find it just.
1. Rawls uses the heurestic device of VEIL OF IGNORANCE.
 2. Men are put behind the veil of ignorance and asked to do a Thought experiment of
arriving at a just distribution of PRIMARY and SECONDARY goods.
3. Since these are not HOBBESIAN MEN driven by "desire after desire" and live in society,
they are to arrive at just principles.
7. Good is not prior to right, rather determined by right
8. Principles of Justice (arranged in lexical order)
1. Liberty Principle: maximum, equal liberty for all compatible with all
2. Social and economic inequalities are to be arranged in such a manner that both
1. Equality of Opportunity Principle: attached to position and offices open to all, equality
of opportunity
2. Difference Principle: any inequality, only justified to the benefit of the least
advantaged
9. Further
1. for Rawls, natural facts are not just or unjust
1. how we deal with them makes them just or unjust
2. Rawls therefore supports
1. Affirmative action, progressive taxation, welfare state, social security
2. Society for him is like a CHAIN, the weakest link is as important as the
STRONGEST
Justice as Fairness (1958)
Theory of Justice (1971)
Book on Political Liberalism (1993)
The Laws of People (1999)

COMMUNITARIAN CRITIQUE
Bowling Alone: ROBERT PUTNAM: decline of social capital
Invest time in societies, like economic capital is needed to run industries, social capital is needed to
run society

MICHAEL SANDEL: “LIBERALISM AND THE LIMITS OF JUSTICE”

 1. Criticizes Rawls on two bases:
1. Conception of Self
2. Conception of Society
2. Rawls like other Liberals treats Man as abstract self, but for Communitarianism: Man is “
EMBEDDED SELF” in traditions and customs.
3. Rawls furtherconsiders RIGHT prior to the GOOD,i.e., rights of individuals are given primacy
over Good of Community.
4. Communitarians argue that Individuals’ rights not independent of good of the society
MICHAEL WALZER: “SPHERES OF JUSTICE”

1. Justice is not “HOMOGENISATION” BUT “ ART OF DIFFERENTIATION”

2. People produce their own SOCIAL MEANING, which therefore cannot be imposed
3. Criticizes Rawls for Ignoring differences
RESPONSE OF RAWLS:

“POLITICAL LIBERALISM” 1993

1. ACCEPTS Communitarian Critique accepts the principles may not apply in Non Western Society
2. But the Principle of Justice as Fairness remains the most RATIONAL PRINCIPLE
3. Also LIMITS Justice TO Political Sphere.
4. Gives Concept of “OVERLAPPING CONSENSUS” BASED ON
1. Public Reasoning
2. Reflexive Equilibrium that acknowledges Reasonable Pluralism
5. Overlapping Consensus for Rawls is not MODUS VIVENDI: an unwilling agreement of temporary
nature like Hobbesian Contract.

OVERLAPPING CONSENSUS:
- The term overlapping consensus refers to how supporters of different comprehensive normative
doctrines—that entail apparently inconsistent conceptions of justice—can agree on particular
principles of justice that underwrite a political community's basic social institutions.
Comprehensive doctrines can include systems of religion, political ideology, or morality.
- Rawls explains that an overlapping consensus on principles of justice can occur despite
"considerable differences in citizens' conceptions of justice provided that these conceptions
lead to similar political judgements."
- Political power is used legitimately in a liberal society when it is used in accordance with
political conception of justice.
- Question remains why citizens willingly obey law as specified by a liberal political
conception?
- Why should citizens however follow the laws?
- If citizens do not have believe they have reasons, social order may disintegrate
- Rawls places his hopes for social stability in an OVERLAPPING CONSENSUS.
- In an overlapping consensus, citizens endorse a core set of laws for different reasons.
- In Rawlsian terms, each citizen supports a political conception of justice for reasons
internal to her own comprehensive doctrine.
- Political conception thus evolves as a module that can fit into any number of worldviews that
citizens may have
- In overlapping consensus, each reasonable citizen affirms this common “module” from her own
perspective.
- For Rawls this overlapping consensus is the most desirable form of stability in a free
society.Stability is an overlapping consensus superior to mere balance of power(modus vivendi)
among citizens.
- This is because as power often shifts, social stability of a modus vivendi may also be lost.

LIBERTARIAN CRITIQUE:

ROBERT NOZICK: “Anarchy, State and Utopia”

1. Libertarian response to Rawls

2. Against PATTERNED AND END-STATE CONCEPTIONS OF JUSTICEwhich Interferes with
Individual Liberty
1. It is theENTITLEMENT THEORY OF JUSTICE BASED ON THE IDEA OF
“NIGHTWATCHMAN STATE”
3. According toNozick “ Social Justice by state is a Mirage.
4. State should only be centred on ensuring:
1. Public property and order
2. Enforce contracts
3. Protect against foreign attack
 5. Difference Principle was criticized by Nozick for it focuses only on “Formal definition of
Liberty”
SOCIAL LIBERALS:

1. Rawls according to Sen treats individuals as abstract, not real persons in real situations,
2. Sen supports SOCIAL CHOICE> RAWLS RATIONAL CHOICE
1. Real people negotiating in real situations unlike abstract individuals negotiating in
3. Rawlsignores VALUE PLURALISM, which Sen explains through the analogy of “ANNE-
BOB-CARLA”
4. Rawls analysis is Procedural rather than substantial.
5. While Sen gives primacy to Nyaya(Justice) over Niti(procedures) inspired by the
conversation between Krishna and Arjuna in the battlefield.
6. Transcendental Institutionalism
Anne Bob Carla -- in real life infeasible--
Unachievable---therefore redundant
HDI, UNDP; Public reasoning, Social choice approach
MARXIST CRITIQUE

1. Canadian Marxist Gerald Cohen: RESCUING JUSTICE AND EQUALITY questions Rawls trust
placed in Liberalism.Cohen argues that liberalism’s obsession with self interest
maximization is not compatible with his redistributiveideas.
2. Capitalism and Liberalism for Cohen can never lead to FAIR SOLUTIONS
3. Rawls Theory amounts to a“ VULGAR DEFENCE OF INEQUALITIES”
4. Marxist Idea of Justice is summed up in the “CRITIQUE OF THE GOTHA PROGRAMME”:
“From each according to his ability, to each according to his needs”
FEMINIST CRITIQUE
SUSAN OKIN: “Justice, Gender and the Family”
1. Rawls overlooked significance of Justice in Family
2. Public realm also has a bearing on families
CAROLE PATEMAN: The Sexual Contract
In the original position: heads of families are predominantly men, how are women represented
then
CAROL GILLIGAN: In a Different Voice
Ethics of Care should be the first principle rather than Liberty
We ahould discuss co cept of justice in theory of ethics
Better than reason, masculinist culture
Empowerment of women

GLOBAL JUSTICE
In the book “ THE LAW OF THE PEOPLES”
Specific responseto the question of CHARLES BEITZ AND THOMAS POGEE:
Can the Difference Principle be extended to the Global level? Can North be taxed for South?
Rawls’ Response:
It cannot be applied in international sphere, only domestic
However, Rawls gives principles for interaction between nations
Respect Sovereignty
Non Interference
Respect treaties
Observe International Code of Conduct (example: POWs)
Help during Natural Calamities
A few comparisons:
1. Rawls vs Libertarians:
1. Both prioritise Liberty
2. Rawls makes an effort to justify inequality whereas Libertarians find no need to
justify inequality
 3. State for Rawls is aimed at helping the Disadvantaged while Libertarians treat the
pursuit of Social Justice by state as a Mirage and call for NIGHTWATCHMAN STATE
2. Rawls vs Socialists/Marxists
1. Rawls emphasizes on Liberty, Liberty for Marxists is False Consciousness. They call
for true human freedom: realization of human creativity
2. Socialists further argue that there is no need for equality of opportunity. They only
uphold the difference principle
Communitarian: no Universalist Concept
Walzer, Sandel: Sandel’s Cri9cism of Rawls
Concep9on of Self: Original Posi9on (dependent on Commmunity)
Concep9on of Community
Rawls Vs Communitarians
1st Book: Theory of Jus9ce
Universal Principle based on Ra9onal Principle
Communitarians: Man not Independent of Society
2nd Book: Poli9cal Liberalism
Answer to Communitarian Cri9cism
Limits Principles of Jus9ce to Poli9cal Ins9tu9ons
Theory only For Liberal Democracy, not Applicable to Others (Irra9onals)
3rd Book: Laws of People
due to Ques9ons Raised by Cosmopolitan Scholars Like Charles Beitz and Thomas Pogee
Differences should be Accepted.
Rawls's Original Posi9on Atomis9c
Rawls in Response Limited His Theory to Poli9cal Sphere only: Only where Democra9c Culture.
Democracy: Difference Yet Stable
Democra9c Socie9es Accept Difference
People Can Live According to Their 'Comprehensive Doctrines' (Way of Life)
Democra9c Poli9cal Culture is based on
Public Reasoning
Principle of Reciprocity
Tolera9on due to Burden of Judgement: Acceptance of Difference.
Overlapping Consensus Developed since People Accept Burden of Judgement
Acceptance of Difference
Book: Poli9cal Liberalism
Differs from Modus Vivendi: Compulsion by Force
Minority Accept to Protect Their Rights, Majority Accept For Stability
Against Ques9on of Charles Beitz and Thomas Pogee About Taxa9on to North For Payment to
South, He
Rejects and Gives Concept of Decent People (no Difference Principle Inter-Society)
Liberals (Seasia)- Book: Laws of the People
Treat Equal in Treaty, Non-Interven9on, Human Rights
Decent People: Peaceful, Human Rights, E.G.- South East Asian Countries.
Poli9cal Liberalism
3 Principles of Jus9ce Limited to Poli9cal Sphere only in Wake of Cri9cism from Communitarians
Communitarian Vs Liberalism
Individual
Atomis9c For Liberalism.
Situated Self- Man not Independent of Culture (Self is not Prior to good, rather Self is Cons9tuted
by good): Our Choice are Made by Community in Which we Live, even when we Might Think
Ourselves
to be Independent
Community: Take Organic View of Society as Against Aggregate View Taken by Libertarians
Rights
There should be Community Specific Rights
Personal and Poli9cal should not be Separate
Libertarians Consider to Keep Public Sphere Free of Culture, Religion and Believe in Universal
Ci9zenship, Uniformity, Uniform Civil Code, Etc
Tradi9on is Part of Personal Iden9ty
A NOTE ON DIFFERENCE PRINCIPLE:
The difference principle thus expresses a positive ideal, an ideal of deep social unity. In
a society that satisfies the difference principle, citizens know that the economy works
to everyone’s benefit and creates social harmony.
IN JUSTICE AS FAIRNESS: MEN AGREE TO SHARE ONE ANOTHERS’ FATE
Allows inequalities in wealth and income so long as these will be to everyone’s
advantage and specifically to the advantage of those who will be worst off.
The difference principle accommodates Human dignity in the conception of Justice.
It asserts that any departure from equal distribution of primary goods is only justified
to benefit the least advantaged.
Society according to RAWLS is a chain in which the weakest link is equally important
(NALSA, Will Kymlicka: Minorities)
Through this Rawls balances DESERT, DIGNITY AND MERIT
It does not violate Justice as fairness as is a substantive not procedural theory
It is congruent with NALSA judgment that calls for treating 3rd Gender as backward
class and WILL KYMLICKA’s demand of special rights for minorities
CRITIQUE:
Nozick: Anarchy, State, Utopia: criticized Welfare State, Entitlement theory: where
people should be held responsible for their choices.