Reading Notes by Christopher Lay

Los Angeles Pierce College

Department of History, Philosophy, and Sociology

Rawls' "Justice as Fairness"

Justice	What is justice? What are its parts?
	"A practice is just if it is in accordance with the principles which all who participate in it might reasonably be expected to propose or to acknowledge before one another when they are similarly circumstanced and required to make a firm commitment in advance without knowledge of what will be their peculiar condition, and thus when it meets standards which the parties could accept as fair should occasion arise for them to debate its merits."
What is Justice? How is Justice Related to Fairness?	Justice = Fairness? nay Justice ≠ Fairness Is one more primary than the other? Is justice more fundamental than fairness? Is fairness more fundamental that justice?	"It might seem at first sight that the concepts of justice and fairness are the same, and that there is no reason to distinguish them, or to say that one is more fundamental than the other." "I think that this impression is mistaken."
Fairness	Rawls: fairness is the fundamental concept in justice	"In this paper I wish to show that the fundamental idea in the concept of justice is fairness; and I wish to offer an analysis of the concept of justice from this point of view."
Superior Justice	Justice, with fairness as its fundamental concept is superior to other employments of justice in Utilitarianism and Social Contractarianism	"I shall ... argue that it is this aspect of justice for which utilitarianism, in its classical form, is unable to account, but which is expressed, even if misleadingly, by the idea of the social contract."
Senses of Equality	The sense of equality in the concept of justice ≠ The sense of equality in the "more comprehensive social ideal"	"It is important, for example, to distinguish that sense of equality which is an aspect of the concept of justice from that sense of equality which belongs to a more comprehensive social ideal."
Tolerable Inequalities	The sense of equality in the concept of justice can tolerate some forms of inequality While other notions might motivate us to not tolerate such forms of inequity	"There may well be inequalities which one concedes are just, or at least not unjust, but which, nevertheless, one wishes, on other grounds, to do away with."
Sense of Justice Focused Upon	Here, the sense of justice examined aims at The elimination of arbitrary distinctions The establishment of proper balance amongst competing claims	"I shall focus attention, then, on the usual sense of justice in which it is essentially the elimination of arbitrary distinctions and the establishment, within the structure of a practice, of a proper balance between competing claims."
The Principles	Principles at the heart of this sense of justice give voice to Liberty Equality Desert for "contribut[ions] to the common good"	"These principles express justice as a complex of three ideas: liberty, equality, and reward for services contributing to the common good."
First Principle	"each person participating in a practice, or affected by it, has an equal right to the most extensive liberty compatible with a like liberty for all"
First Principle	A strong statement of initial equality If you are in, or affected by, a practice, you have the right to the same liberties as others have
Departures from Initial Equality of Liberties	Departures from "initial position of equal liberty" must be justified	"The first principle holds, of course, only if other things are equal: that is, while there must always be a justification for departing from the initial position of equal liberty (which is defined by the pattern of rights and duties, powers and liabilities, established by a practice)," and
	The justification for such departures must be made by those who seek departure	"the burden of proof is placed on him who would depart from it, nevertheless, there can be, and often there is, a justification for doing so."
Like for Like	Similar cases call for similar treatment The generality of rules	"Now, that similar particular cases, as defined by a practice, should be treated similarly as they arise, is part of the very concept of a practice; it is involved in the notion of an activity in accordance with rules."
Equality Enough?	Is equal liberty sufficient for justice? But what about systems that permit greater liberties for some without "loss or conflict?" Only when a greater liberty to some is "incompatible" (or in "conflict"), or when it renders a practice "less effective" (a "loss") would we want to constrain such greater liberty Justice, then, permits some to have greater liberties	"It might be argued at this point that justice requires only an equal liberty. If, however, a greater liberty were possible for all without loss or conflict, then it would be irrational to settle on a lesser liberty. There is no reason for circumscribing rights unless their exercise would be incompatible, or would render the practice defining them less effective. Therefore no serious distortion of the concept of justice is likely to follow from including within it the concept of the greatest equal liberty."
Second Principle	"[I]nequalities are arbitrary unless it is reasonable to expect that they will work out for everyone's advantage, and provided the positions and offices to which they attach, or from which they may be gained, are open to all." "The second principle defines what sorts of inequalities are permissible; it specifies how the presumption laid down by the first principle may be put aside" Permissible departures defined Initial equality desired, and Subsequent inequality permitted
Inequalities of What? / Benefits & Burdens	Inequalities of "benefits and burdens" "[S]uch as prestige and wealth, or liability to taxation and compulsory services"	"Now by inequalities it is best to understand not any differences between offices and positions, but differences in the benefits and burdens attached to them either directly or indirectly, such as prestige and wealth, or liability to taxation and compulsory services."
Games Analogy	Distribution of unequal rights and duties Not challenged on the playing field Likewise Not challenged by the citizens of a country "Players in a game do not protest against there being different positions, such as batter, pitcher, catcher, and the like, nor to there being various privileges and powers as specified by the rules; nor do the citizens of a country object to there being the different offices of government such as president, senator, governor, judge, and so on, each with their special rights and duties."
The Condition of Just Inequality	"the second principle holds that an inequality is allowed only if there is reason to believe that the practice with the inequality, or resulting in it, will work for the advantage of every party engaging in it" Inequalities benefitting all engaged are permissible
All Must Benefit	Only those inequalities benefitting all engaged are permissible	"Here it is important to stress that every party must gain from the inequality."
	Across the spectrum of those who participate in a practice, all must find a change in equality preferable to its absence	"the representative man in every office or position defined by a practice, when he views it as a going concern, must find it reasonable to prefer his condition and prospects with the inequality to what they would be under the practice without it."
Not Utilitarianism	"The principle excludes, therefore, the justification of inequalities on the grounds that the disadvantages of those in one position are outweighed by the greater advantages of those in another position"
Analogous to Morality	When persons insist upon rights in the face conflicting claims about the design and institution of a practice we see the desire for constraints And those constraints are "analogous to those of having a morality, whereby rational and mutually self-interested persons are brought to act reasonably"	"The procedure whereby principles are proposed and acknowledged represents constraints, analogous to those of having a morality, whereby rational and mutually self-interested persons are brought to act reasonably. Thus the first part reflects the fact that questions of justice arise when conflicting claims are made upon the design of a practice and where it is taken for granted that each person will insist, as far as possible, on what he considers his rights."
		"It is typical of cases of justice to involve persons who are pressing on one another their claims, between which a fair balance or equilibrium must be found."
Having a Morality	Having a morality, or making an appeal to such a constraint, implies acknowledging impartial principles that apply equally Such principles limit "one's own interests" as it does others'	"On the other hand, as expressed by the second part, having a morality must at least imply the acknowledgment of principles as impartially applying to one's own conduct as well as to another's, and moreover principles which may constitute a constraint, or limitation, upon the pursuit of one's own interests."
	"having a morality is analogous to having made a firm commitment in advance; for one must acknowledge the principles of morality even when to one's disadvantage"
		"A man whose moral judgments always coincided with his interests could be suspected of having no morality at all."
Inequality and Long-Term Utility	Submission to inequalities that satisfy the second principle An investment on a future (hoped) return	"There is, however, no reason why they should regard this position as final; for if there are inequalities which satisfy the second principle, the immediate gain which equality would allow can be considered as intelligently invested in view of its future return."
Incentives	Inequalities as incentives Its seemingly human nature anyhow	"If, as is quite likely, these inequalities work as incentives to draw out better efforts, the members of this society may look upon them as concessions to human nature: they, like us, may think that people ideally should want to serve one another."
The Morality Statement of Justice	"The principles of justice may ... be regarded as those principles which arise when the constraints of having a morality are imposed upon parties in the typical circumstances of justice"
	Fairness (and Empathy!)
Morality	Once we impose a "concept of morality" on mutually-interested, similarly constrained persons Justice emerges as a primitive notion of morality	"Not only does it bring out the idea that justice is a primitive moral notion in that it arises once the concept of morality is imposed on mutually self-interested agents similarly circumstanced"
	The concept of fairness, as a result, is seen as fundamental to justice Fairness: persons related to each other cooperatively, or competitively	"it emphasizes that, fundamental to justice, is the concept of fairness which relates to right dealing between persons who are cooperating with or competing against one another, as when one speaks of fair games, fair competition, and fair bargains."
	When does fairness become an issue? Persons not subjected to authority engaged in joint activities attempting settle rules governing benefits and burdens	"The question of fairness arises when free persons, who have no authority over one another, are engaging in a joint activity and amongst themselves settling or acknowledging the rules which define it and which determine the respective shares in its benefits and burdens."
Statement of Fairness	"A practice will strike the parties as fair if none feels that, by participating in it, they or any of the others are taken advantage of, or forced to give in to claims which they do not regard as legitimate"
Duty to Obey	To ensure fairness, There is a prima facie duty to obey the acknowledged rules when Acknowledged rules are accepted, and No complaints lodged against such a practice	"Now if the participants in a practice accept its rules as fair, and so have no complaint to lodge against it, there arises a prima facie duty (and a corresponding prima facie right) of the parties to each other to act in accordance with the practice when it falls upon them to comply."
Prima Facie ≠ Absolute	The prima facie duty to obey the accepted, acknowledged rules is just that, only prima facie Other considerations may justify deviation	"This prima facie obligation may, of course, be overridden: it may happen, when it comes one's turn to follow a rule, that other considerations will justify not doing so. But one cannot, in general, be released from this obligation by denying the justice of the practice only when it falls on one to obey."
Conditions	When deviance seems permitted Announce in advance intention to deviate And recuse oneself from participating in the practice, or benefiting from it	"If a person rejects a practice, he should, so far as possible, declare his intention in advance, and avoid participating in it or enjoying its benefits."
Unfair	Unfair actions don't emerge from just breaking a rule "taking advantage of loop-holes or ambiguities in rules," "availing oneself of unexpected or special circumstances which make it impossible to enforce them," "insisting that rules be enforced to one's advantage when they should be suspended," "and more generally, acting contrary to the intention of a practice."	"This duty I have called that of fair play, but it should be admitted that to refer to it in this way is, perhaps, to extend the ordinary notion of fairness. Usually acting unfairly is not so much the breaking of any particular rule, even if the infraction is difficult to detect (cheating), but taking advantage of loop-holes or ambiguities in rules, availing oneself of unexpected or special circumstances which make it impossible to enforce them, insisting that rules be enforced to one's advantage when they should be suspended, and more generally, acting contrary to the intention of a practice." "fair play implies a constraint on self-interest in particular cases; on occasion it enjoins conduct which a rational egoist strictly defined would not decide upon."
Fair	Feeling of fairness ≠ just following the rules	"acting fairly requires more than simply being able to follow rules; what is fair must often be felt, or perceived, one wants to say. It is not, however, an unnatural extension of the duty of fair play to have it include the obligation which participants who have knowingly accepted the benefits of their common practice owe to each other to act in accordance with it when their performance falls due"
Tax-Dodger E.G.	"one might say of the tax-dodger that he violates the duty of fair play: he accepts the benefits of government but will not do his part in releasing resources to it; and members of labor unions often say that fellow workers who refuse to join are being unfair: they refer to them as 'free riders,' as persons who enjoy what are the supposed benefits of unionism, higher wages, shorter hours, job security, and the like, but who refuse to share in its burdens in the form of paying dues, and so on."
Recognizing Another	"acknowledging the duty of fair play is a necessary part of the criterion for recognizing another as a person with similar interests and feelings as oneself"	"the criterion for the recognition of suffering is helping one who suffers, acknowledging the duty of fair play is a necessary part of the criterion for recognizing another as a person with similar interests and feelings as oneself."
Accepting Fair Play Reflects Recognition of Others	"the acceptance of the duty of fair play by participants in a common practice is a reflection in each person of the recognition of the aspirations and interests of the others to be realized by their joint activity."
From Recognition of Others to Justice	Recognizing other as similar, requires certain ways of acting Those ways of acting "intimately connected" with prima facie duties Acknowledging those duties "in some degree" is not a choice (Note, "acknowledging" ≠ acting upon)	"To recognize another as a person one must respond to him and act towards him in certain ways; and these ways are intimately connected with the various prima facie duties. Acknowledging these duties in some degree, and so having the elements of morality, is not a matter of choice, or of intuiting moral qualities, or a matter of the expression of feelings or attitudes (the three interpretations between which philosophical opinion frequently oscillates); it is simply the possession of one of the forms of conduct in which the recognition of others as persons is manifested."
		("to forestall, together with the remarks in Section 4, the misinterpretation that, on the view presented, the acceptance of justice and the acknowledgment of the duty of fair play depends in every day life solely on there being a de facto balance of forces between the parties. It would indeed be foolish to underestimate the importance of such a balance in securing justice; but it is not the only basis thereof.")
From Empathy to Justice as Fairness	Recognition of other as similar "must," save something special "show itself in the acceptance of the principles of justice and the acknowledgment of the duty of fair play" (Note, "accepting" ≠ acting upon, and "acknowledging" ≠ acting upon)	"The recognition of one another as persons with similar interests and capacities engaged in a common practice must, failing a special explanation, show itself in the acceptance of the principles of justice and the acknowledgment of the duty of fair play."
Morality	So, from the basis of other codes of moral conduct Justice is likewise based	"the principles of justice may be thought of as arising once the constraints of having a morality are imposed upon rational and mutually self-interested parties who are related and situated in a special way."
Crystallization	"A practice is just if it is in accordance with the principles which all who participate in it might reasonably be expected to propose or to acknowledge before one another when they are similarly circumstanced and required to make a firm commitment in advance without knowledge of what will be their peculiar condition, and thus when it meets standards which the parties could accept as fair should occasion arise for them to debate its merits."	"Regarding the participants themselves, once persons knowingly engage in a practice which they acknowledge to be fair and accept the benefits of doing so, they are bound by the duty of fair play to follow the rules when it comes their turn to do so, and this implies a limitation on their pursuit of self-interest in particular cases."
Injustice	This conception of justice handles injustice (and the feelings we have that injustices are immoral)	"where [this developed conception of justice] applies, there is no moral value in the satisfaction of a claim incompatible with it."
Claims	Claims can violate basic communal conditions Pressing a claim means acknowledgment that claims can be pressed against oneself	"Such a claim violates the conditions of reciprocity and community amongst persons, and he who presses it, not being willing to acknowledge it when pressed by another, has no grounds for complaint when it is denied"
		"whereas he against whom it is pressed can complain."
Coercion and Compulsion	Pressing a claim without such acknowledgement amounts to an appeal to coercion	"As it cannot be mutually acknowledged it is a resort to coercion; granting the claim is possible only if one party can compel acceptance of what the other will not admit."
Utility	Utilitarian-like claims that an unjust act will nevertheless satisfy wants and desires is not enough	"in deciding on the justice of a practice it is not enough to ascertain that it answers to wants and interests in the fullest and most effective manner."
	Justice trumps such claims	"For if any of these conflict with justice, they should not be counted, as their satisfaction is no reason at all for having a practice."