John Rawls’ “Hypothetical” Contract
We might also suggest the approach of the Harvard philosopher John Rawls, whose book A Theory of Justice is the single most influential philosophical ethics text of the past thirty years. Rawls’ contractarian approach differs radically from the approach of either Gauthier or Harman because it finds its inspiration, not in Hobbes, but in Locke, Rousseau, and Kant.
Rawls begins by considering the original position where parties deliberate about the rules of right conduct that will be universally applicable in society. In the bargaining position, parties are impartial, that is, everyone’s interest count equally. This is guaranteed by the so-called veil of ignorance that hides from contractors any knowledge of themselves. You do not know your race, sex, social class, or nationality from behind the veil of ignorance. Although parties are self-interested and want to establish rules beneficial for themselves, in reality, self-interest is ruled out by the veil of ignorance because from behind it one cannot differentiate their interests from the interests of others.
The rules agreed to by rational bargainers behind a veil of ignorance are moral rules. This solution demonstrates a hypothetical way that contract theory could account for the rules favored by ordinary moral conscious-ness, since the veil of ignorance assures us that impartial rules will result. However, by mitigating the role played by self-interest, this type of con-tract radically departs from the account of morality given by Hobbes or any neo-Hobbesians.
It is important to keep in mind that the agreement that stems from the original position is both hypothetical and nonhistorical. It is hypothetical in the sense that the principles to be derived are what the parties would, under certain legitimating conditions, agree to, not what they have agreed to. In other words, Rawls seeks to persuade us through argument that the principles of justice that he derives are in fact what we would agree upon if we were in the hypothetical situation of the original position and that those principles have moral weight as a result of that. It is nonhistorical in the sense that it is not supposed that the agreement has ever, or indeed could actually be entered into as a matter of fact.
Rawls claims that the parties in the original position would adopt two such principles, which would then govern the assignment of rights and duties and regulate the distribution of social and economic advantages across society. First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others. The basic liberties of citizens are, roughly speaking, political liberty (i.e., to vote and run for office); freedom of speech and assembly, liberty of conscience and freedom of thought, freedom of property; and freedom from arbitrary arrest. It is a matter of some debate whether freedom of contract can be inferred as being included among these basic liberties.
The first principle is more or less absolute, and may not be violated, even for the sake of the second principle, above an unspecified but low level of economic development (i.e. the first principle is, under most conditions, lexically prior to the second principle). However, because various basic liberties may conflict, it may be necessary to trade them off against each other for the sake of obtaining the largest possible system of rights. There is thus some uncertainty as to exactly what is mandated by the principle, and it is possible that a plurality of sets of liberties satisfy its requirements.
The second principle is that social and economic inequalities are to be arranged so that:
- a) they are to be of the greatest benefit to the least-advantaged members of society (the difference principle).
- b) offices and positions must be open to everyone under conditions of fair equality of opportunity
Rawls’ claim in a) is that departures from equality of a list of what he calls primary goods – ‘things which a rational man wants whatever else he wants’ [Rawls, 1971, pg. 92] – are justified only to the extent that they improve the lot of those who are worst-off under that distribution in comparison with the previous, equal, distribution. His position is at least in some sense egalitarian, with a proviso that equality is not to be achieved by worsening the position of the least advantaged. An important consequence here, however, is that inequalities can actually be just on Rawls’s view, as long as they are to the benefit of the least well off. His argument for this position rests heavily on the claim that morally arbitrary factors (for example, the family we’re born into) shouldn’t determine our life chances or opportunities. Rawls is also keying on an intuition that we do not deserve inborn talents, thus we are not entitled to all the benefits we could possibly receive from them, meaning that at least one of the criteria which could provide an alternative to equality in assessing the justice of distributions is eliminated.
The stipulation in b) is lexically prior to that in a). ‘Fair equality of opportunity’ requires not merely that offices and positions are distributed on the basis of merit, but that all have reasonable opportunity to acquire the skills on the basis of which merit is assessed. It is often thought that this stipulation, and even the first principle of justice, may require greater equality than the difference principle, because large social and economic inequalities, even when they are to the advantage of the worst-off, will tend to seriously undermine the value of the political liberties and any measures towards fair equality of opportunity.
In conclusion, it appears that contract theory is viable to the extent that individuals are relatively equal in power when the contract is both negotiated and renegotiated. But, in the real world, this does not appear to be the case. Thus, we always have an imperfect contract which represents the interests of the stronger, more interested, or more persuasive parties. Whether an “equilibrium” can be reached in the bargaining process is problematic, inasmuch as individuals rarely encounter each other “on a level playing field” even when interacting within the contract. So even though it may be the case that morality is, as the moral philosopher Gilbert Harman supposes, nothing more than the result of bargaining and power-struggling between various groups, we can still ask whether this should be the case. Many accept the “is” but reject the “ought.” And if they do, then morality “ought to be” more than just a contract between rational bargainers. (which is one reason why Rawls’ stipulates the veil of ignorance.)
Finally let us note how much of contemporary western civilization operates within a contract framework. We have contracts that govern our property, our mortgages, and our marriages. We have contracts that state who will speak for us if we cannot speak for ourselves and what kind of medical technology is deemed appropriate to sustain our lives. In short, we are a contract society. Whether this is for the better, only the reader can judge.