Theories of Rights
John Rawls, one of the most celebrated contemporary philosophers, puts forward a compelling concept in A Theory of Justice (1971) which attempts to delineate the features of a just society by way of a hypothetical contract, grounded in rationality, arrived at under ideal conditions (Dunne & Wheeler, 1999; Jones, 1994). Rawls (1999: 10) purposes a persuasive theory by presenting ‘a conception of justice which generalizes and carries to a higher level of abstraction the familiar theory of the social contract’ tied to earlier thinkers, such as John Locke, Jean-Jacques Rousseau and Immanuel Kant.
Undeniably, the contractarian aspect of Rawls’s theory has had the greatest influential impact (Kukathas ; Pettit, 1990), so much so that American intellectuals nominated Rawls to become a judge in the Supreme Court. However, despite this, some critics are yet to be persuaded by Rawls’s notion of ‘justice as fairness’ (Alejandro, 1998; Boucher & Kelly, 1994). Using a hypothetical model Rawls considers how rights would be conceived in the original position (Freeman, 1991).
According to Rawls (1971) cited in Wolff (1977) the ‘original position’ is a group of rational men and women who are roughly similar in needs and interests, suitably equal in power and ability and not envious, who come together to form a social contract (Dworkin, 1977). Not surprisingly, this egalitarian concept has come under critical attack as Rawls fails to acknowledge natural talent (Corlett, 1991) and that certain individuals may require more resources, for example, a ‘person with paralysed limbs needs many more resources to achieve the same level of mobility’ (Amartya Sen cited in Hayden, 2001: 221).
In addition to this, Kukathas & Pettit (1990) suggest it not psychological realistic to be unmotivated by envy. Rawls also makes the distinctive assumption cited in Barry (1973) that those in the original position had limited knowledge, which he refers to as a ‘veil of ignorance’: “I assume that the parties are situated behind a veil of ignorance. They do not know how the various alternatives will affect their own particular case and they’re obliged to evaluate principles solely on the basis of general considerations” (Rawls, 1971: 136-7 cited in Kukathas & Pettit, 1990)
To elaborate, under the veil of ignorance a party forgets all the details of his personal life, ‘including his talents, abilities, interests, purposes, culture, sex, age plan of life, historical location, and so forth’ (Wolff, 1977: 120), yet he understands ‘political affairs and the principles of economic theory; they know the basis of social organization and the laws of human psychology’ (Wolff, 1977: 72). Surely, therefore, the arrangement which we would choose under the veil of ignorance has a good claim to be a just one (Kukathas & Pettit, 1990).
Undeniably, there is disjointedness between the moral perspective in the original position and the person outside of the original position ‘who is in full knowledge of his beliefs, values and interests’ (Boucher & Kelly, 1994: 231). However, Rawls (1971) cited in Barry (1973: 7) persuades the reader to take on his notion of justice as impartiality by stating that ‘acting justly is something we want to do as free and equal rational beings’: if we fail to adopt Rawls’s theory of human rights, we fail to act rationally.
Despite Rawls’s attempt to create a situation where no one is in a position to tailor principles to their advantage (Boucher & Kelly, 1994), the notion of a ‘veil of ignorance’ has aroused major criticism, which has consequently tarnished the persuasiveness of his theory. The first difficultly, pointed out by Wolff (1977: 66), is that, ‘unless we specify exactly how much the veil of ignorance obscures and how much it leaves available to the occupants of the original position, we shall be unable to deduce anything at all about their reasoning processes’.
If, under the veil of ignorance, the parties have no idea of their purposes, plans, and interests, surely they could not possibly engage in rational deliberation about how they would like their institutions to be arranged (Boucher & Kelly, 1994). Also, admittedly, even the most unskeptical reader would find it hard to be persuaded by the epistemologically impossible assumption that parties in the original position know a good deal, although not about themselves (Wolff, 1977: 71).
Barry (1973: 12) suggests that Rawls’s theory would be more persuasive if he abandoned his ‘original position’ contractarian device, whilst maintaining his commitment to justice as impartiality, after all ‘there is not a great deal of practical difference between invoke Rawls’s ‘veil of ignorance’ and simply demanding that an ‘ideal observer’ should behave impartially, or saying that people’s moral judgements are more likely to be unprejudiced if their own interests are not at stake in the matter’.
Similarly, Boucher & Kelly (1994: 231) claim that Rawls has made life difficult for himself by adopting such an ‘abstract and philosophical implausible account of the person in order to ground an impartial perspective’. Rawls (1999) cited in Hayden (2001) theorises that parties in the original position realise they’re rational beings who are capable of planning their futures and ‘although they do not know the details of those plans, they do know that the plans require certain sorts of goods for their satisfactory completion’ (Wolff, 1977: 133).
Evidently, it appears that Rawls’s concept of individual is a little loaded as the rational capacities which Rawls suggests we would draw on are not natural, they are the product of social conditioning. Similarly, Wolff (1977: 74) believes there are reasons to doubt the cognitive psychology of the original position, as they seem to ‘know how to get whatever they want, but they do not know what they want’, whereas ‘we know what we want but we do not know how to get it’. Wolff (1977: 141) declares he cannot think of a ‘less persuasive portrait of true rationality’.
Rawls’s claims primary goods are the items that all rational individuals would desire for attaining whatever he wants to attain in life (Jones, 1994; Hayden, 2001). The Rawlsian list of primary goods includes; ‘liberties, powers and opportunities, income and wealth, and a sense of self-respect’ (Wolff, 1977: 13). In addition to these, Rawls has more recently added freedom of movement and the free choice of occupation to the list (Hayden, 2001). Rawls’s cited in Jones (1994: 129) justifies individuals having rights to these freedoms by stating that ‘autonomous beings must be respected’.
Rawls elaborates by claiming: “Equal voting rights and the other equalities associated with democracy are important, not for what they contribute to the process of decision making, but as public acknowledgements of the equal status accorded to individuals… people have a right not be treated in that publicly humiliating fashion” (Rawls, 1971 cited in Jones, 1994: 179) This highly evocative statement is a very persuasive way of confronting the reader with the demands of justice as fairness (Jones, 1994).
Admittedly, Rawls advocates that the natural human is used to large array of primary goods, however it is perhaps more appropriate to suggest that these primary goods are reflective of consumer society. It is highly unlikely that natural society wants as much as Rawls suggests. In response to this criticism, Rawls refined and narrowed his definition of primary goods in later work (Jones, 1994). To ensure we have access to these primary goods, we would recognise a need to draft a code of conduct that we could all agree on.
There is considerable disagreement among contemporary writers as to how to arrive at universal principles (Dunne & Wheeler, 1999). Rawls’s theory contributes to this debate as he emphasises that all the parties in the original position can be expected to vote in the same way, since ‘each is assumed to be equally ignorant and equally rational’ (Kukathas & Pettit, 1990: 21). Freeman (1991: 45) challenges the assumption, by arguing that ‘the ends perceived by one individual as good may not be similarly perceived by others’.
To explain further, Rawls cited in Hayden (2001: 409) speaks of an ‘overlapping consensus’ whereby ‘different groups, countries, religious communities, civilizations, while holding incompatible fundamental views of theology, metaphysic, human nature, and so on, would come to an agreement on certain norms that ought to govern human behaviour’. If Rawls’s theory is correct, it is fair to advocate that we are able to come to a genuine, unforced international consensus on human rights.
Rawls (1999: 53) believes that if these men and women are rational, and act only in their own self-interest, they will choose the following two principles of justice: “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. 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”
To elaborate, these basic liberties are to include; political liberty, freedom of speech and assembly, liberty of conscience and freedom of thought, freedom of person, right to hold personal property and freedom from arbitrary arrest and seizure (Rawls, 1999: 53). These principles recognise our status as equals (Boucher & Kelly, 1994; Daniels, 1975) and set a standard of justice against which to test actual political institutions. Indeed, ‘the rights he enunciates have a certain universality, in that they represent the rights that should be enjoyed by all citizens in all modern states’ (Jones, 1994: 102).
However, it is fair to question, on what basis, other than an ‘unargued-for judgement as to what his well-ordered non-liberal societies will in practice accept’, does Rawls include the freedom of speech in his list of actionable international human rights but exclude the right to education (Dunne & Wheeler, 1999: 280). Critics have argued that there are no grounds for accepting these principles because without the veil of ignorance we would not chose the same two principles (Sandel cited in Boucher & Kelly, 1994; Wolff, 1977; Corlett, 1991).
Likewise, Dworkin (1977: 150) states that these principles would only be chosen by ‘men who were conservative by temperament, and not by men who were natural gamblers’. As Wolff (1977: 36) points out, Rawls simply assumes that ‘neither threats nor coercion will be used by some players to extract agreement on principles from the other’ and fails to acknowledge that those in the original position may quite possibly fail to reach an agreement about any competing principle of justice (Corlett, 1991).
Rawls places much emphasis on rational choice, however Boucher & Kelly (1994) suggest a more appropriate terminology for what goes on behind the veil of ignorance is discovery. This criticism seriously undermines Rawls’s recourse to a contractarian justification, by proposing that what goes on in the original position is not a contract after all, but ‘the coming to self-awareness of an intersubjective being’ (Sandel cited in Boucher ; Kelly, 1994: 230).
If we look more closely at Rawls’s second principle of justice, Rawls appears to have a highly optimistic outlook on capitalism, providing that a gain to the rich does not mean a loss to the poor. Rawls (1971) cited in Jones (1994: 165) regards ‘societies as ‘schemes of cooperation’ in which individuals combine their labour and arrange their lives for their mutual advantage’. However, paradoxically, ‘a society designed to advance the good of its members might require a greater equality than he is willing to allow’ (Alejandro, 1998: 161).
Despite Rawls’s emphasise on the need for fairness, it appears that his second principle of justice works to the advantage of the worst-off group in society (Jones, 1994; Boucher ; Kelly, 1994). Alejandro (1998: 166) believes this is an issue of concern because ‘justice as fairness encourages unaccountability on the part of the most disadvantaged’ as they do not carry any financial responsibility toward society. Some libertarians might argue that Rawls’s theory sacrifices too much liberty for the sake of the least advantaged group (Corlett, 1991).
Indeed, ‘the Rawlsian requirement entails a distinctly social democratic view of society’, which many cultures may not be persuaded by, as they not only do not share these views (Dunne & Wheeler, 1999: 138). Perhaps another weakness in Rawls’s theory is the way in which he argues for substantial redistributions of income and wealth, yet fails to pay attention to the institutional arrangements by means of which the redistribution is to be carried out (Wolff, 1977). According to Rawls, the governmental institute we would have opted for in the original position would be democracy.
Although there is no historical evidence to suggest we would naturally opt for democracy, it is persuasive to suggest we would reject utilitarianism due to its failure to acknowledge ‘the separateness of persons’, which could consequently result in majoritarianism (Jones, 1994: 62). After examining A Theory of Justice, it is fair to say, despite critical attention, Rawls is an impressive systemic thinker who has succeeded in restating liberalism in a persuasive and dramatic way.
Rawls puts forwards an abstract and complex theory, crammed with arguments in attempt to remove any lingering doubts critics may still be harbouring (Barry, 1973). Although it may be epistemologically impossible for the parties to ‘possess all and only the knowledge Rawls imputes to them’ (Wolff, 1977: 72) and despite the veil of ignorance making the task of arriving at moral consensus infinitely easier than it really is (Dunne ; Wheeler, 1999), upon reflection Rawls offers a convincing theory ‘that would seem reasonable (perhaps even eminently plausible) to persons in others cultures or in other times’ (Boucher ; Kelly, 1994: 263).
It is fair to conclude that Rawls’s relentless attempt to present ‘justice as fairness’ has indeed led us all to subconsciously challenge the way in which we should make decisions about rights.
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