Rawls and Justice as Fairness

The priority rules, which students omit and which carry marks.

• The first principle has lexical priority over the second. Liberty may not be traded for economic gain. A society may not reduce the freedom of a minority in order to raise general prosperity.
• Within the second, fair equality of opportunity has priority over the difference principle. Positions must genuinely be open before the distribution of their rewards is considered.

The Indian mapping

The correspondence with the constitutional scheme is close enough to be worth stating expressly, and it is what makes this theory more useful in an Indian answer than any other.

The first principle and Part III. The basic liberties are the fundamental rights, and their priority corresponds to the position that fundamental rights are not to be sacrificed to economic policy. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, is the Indian statement.

Facts. A sick textile undertaking was taken over and nationalised, and the Act placed in the Ninth Schedule. The petitioners challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976. Section 55 inserted clauses (4) and (5) into Article 368; section 4 widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19.

Held. Both were void. Clause (5) removed all limitations on the amending power and demolished the pillars on which limited government rests; clause (4) removed the courts' power to decide whether a limitation had been exceeded, and a limited power cannot be made unlimited by removing the means of enforcing the limit. The widened Article 31C destroyed the balance between fundamental rights and directive principles, which is itself a basic feature.

Why it matters here. Section 4 would have made economic goals automatically prevail over Articles 14 and 19. Striking it down is close to Rawls's lexical priority: liberty is not to be traded for economic advantage, and the balance is itself protected.

Fair equality of opportunity and Article 16. Equality of opportunity in matters of public employment, with Article 16(4) permitting reservation.

The difference principle and Part IV. Article 38 on minimising inequalities, Article 39(b) and (c) on distribution of resources and prevention of concentration of wealth, and Article 46 on the promotion of the interests of the weaker sections. The difference principle is a criterion for when inequality is permissible, which is exactly what those provisions assume.

Reservation. Rawls's second principle is the most powerful available justification for it: an inequality of treatment is permissible where positions are genuinely open and the arrangement works to the benefit of the least advantaged. That argument is available to a student and is stronger than an appeal to compensation for the past, because it does not depend on identifying present beneficiaries of historic wrongs.

The criticisms

Nozick's objection. Justice concerns how holdings came to be held, not the pattern they form. If a distribution arose from just acquisition and just transfer, it is just however unequal, and maintaining any pattern requires continuous interference with liberty. Treated in [The Critics of Liberal Justice].

The conservative reasoning is contestable. Behind the veil a party might reason as a gambler rather than as a pessimist, and the choice of the maximin rule is an assumption rather than a derivation. Utilitarians say the parties would maximise expected welfare instead.

Sen's objection. Rawls distributes primary goods, but people differ in their ability to convert goods into functioning: a disabled person needs more resources for the same capability. The proper measure is capability, not goods.

The parties are abstractions. Communitarians object that a person stripped of class, sex, community and conception of the good is not a person at all, and that our conceptions of justice are formed within communities rather than chosen behind a veil.

It is a theory for one closed society. It assumes a self-contained society under favourable conditions and says little about the poorest societies, or about obligations across borders.

A worked example

A State proposes to permit private capitation fees in professional colleges, arguing that the revenue will fund more seats overall.

First principle. Are basic liberties affected? Not directly, so the first principle does not decide.

Fair equality of opportunity. Yes, decisively. Positions must be open to all under conditions of fair equality, and price rations by wealth rather than by talent, so the arrangement fails the first limb of the second principle whatever it does for total seats.

The difference principle. Even if capitation fees benefited the worst off, the priority rule means fair equality of opportunity is considered first, so the argument from total seats never reaches the question.

What Indian law did. Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178, held the right to education to flow from Article 21 read with Articles 41, 45 and 46, framed a scheme regulating admissions and fees, and confined the fundamental right to free education to children up to fourteen years by reference to the State's economic capacity. The reasoning is not Rawls's, but the structure, opportunity protected first and capacity limiting the rest, is close.

Quick revision

1. Rawls, A Theory of Justice, 1971. Justice as fairness: the principles that would be chosen in an original position behind a veil of ignorance.
2. The veil removes knowledge of class, race, sex, talents and conception of the good, so principles cannot be tailored to one's own advantage.
3. First principle: equal claim to a fully adequate scheme of equal basic liberties.
4. Second principle: inequalities permissible only if attached to positions open under fair equality of opportunity, and only if to the greatest benefit of the least advantaged.
5. Priority: the first principle over the second; within the second, fair equality of opportunity over the difference principle.
6. Indian mapping: Part III and Minerva Mills for the first principle; Article 16 for fair equality of opportunity; Articles 38, 39(b), 39(c) and 46 for the difference principle; and the strongest available justification of reservation.
7. Criticisms: Nozick on patterns against entitlement; the conservative reasoning is an assumption; Sen on capability against primary goods; communitarian objection to the abstracted parties; and the theory's confinement to one closed society.

Test yourself

1. Explain the original position and the veil of ignorance, and say why the veil produces fairness. The original position is a hypothetical situation of choice in which principles of justice are selected. Behind the veil of ignorance the parties know general facts about society but not their own class, race, sex, natural endowments or conception of the good. The veil produces fairness because nobody can tailor principles to his own advantage when he does not know what his advantage is, so the fairness is built into the procedure of choice.

2. State both principles and both priority rules. Each person has an equal claim to a fully adequate scheme of equal basic liberties compatible with the same for all. Social and economic inequalities must be attached to offices open to all under fair equality of opportunity, and must work to the greatest benefit of the least advantaged. The first principle has lexical priority over the second, so liberty may not be traded for economic gain; and within the second, fair equality of opportunity has priority over the difference principle.

3. Map the theory onto the Indian constitutional scheme. The first principle corresponds to Part III, and its priority to the holding in Minerva Mills that the balance between Parts III and IV is a basic feature, so that economic goals may not be made automatically to prevail over Articles 14 and 19. Fair equality of opportunity corresponds to Article 16 with Article 16(4). The difference principle corresponds to Articles 38, 39(b), 39(c) and 46, and supplies the strongest available justification of reservation.

4. Give two criticisms of Rawls with their force. Nozick's, that justice concerns how holdings were acquired and transferred rather than the pattern they form, so that maintaining any pattern requires continuous interference with liberty. And Sen's, that primary goods are the wrong measure because people differ in their capacity to convert goods into functioning, so that a disabled person needs more resources to reach the same capability, and the proper currency of justice is capability rather than goods.