Rawls II
pp. 52-69
Political Justice and the Relationship Between Formal and Substantive Justice
The claims of formal justice (rules and systems) depend on the substantive justice (ethical correctness) of institutions and their potential for reform.
Some argue that substantive and formal justice are compatible; thus, grossly unjust institutions rarely demonstrate impartial administration.
Individuals benefiting from unjust systems often disregard adherence to the rule of law when it conflicts with their interests.
The inherent vagueness of laws and broad interpretative scope can foster arbitrariness; allegiance to justice can mitigate this.
Presence of formal justice, such as rule of law and fulfillment of legitimate expectations, is often accompanied by substantive justice.
The pursuit of impartial rule application correlates with recognizing the rights and liberties of others, promoting fair social cooperation.
This relationship requires a deeper understanding of substantive justice principles before assessing their connection to formal justice.
Two Principles of Justice
Initial Formulation
The two principles of justice proposed are:
Each individual is entitled to the same extensive scheme of equal basic liberties, as long as it does not infringe upon the liberties of others.
Social and economic inequalities must meet two criteria:
(a) They should benefit everyone.
(b) Positions and offices must be accessible to all.
Ambiguities exist in the second principle, particularly in terms “everyone’s advantage” and “open to all.”
A more precise understanding of this second principle's terms will lead to a refined second formulation.
pp. 73-77
Assumption of High Risk Aversion
The relation between the difference principle and the assumption of very high risk aversion is acknowledged.
It is important to clarify that extreme attitudes toward risk are not necessarily postulated (§28).
There are multiple reasons supporting the difference principle that do not involve aversion to risk.
The term "maximin criterion" should be specifically used for the rule of choice under uncertainty.
Fair Equality of Opportunity and Pure Procedural Justice
Fair Equality of Opportunity
The second part of the second principle is interpreted as the liberal principle of fair equality of opportunity.
This principle should not be conflated with the notion of careers open to talents.
It is essential to understand that the consequences of fair equality of opportunity differ from the liberal interpretation of the combined principles.
Importantly, this principle avoids objections related to fostering a meritocratic society, which will be discussed further in §17.
Relation to Pure Procedural Justice
The justification for requiring open positions is not strictly or primarily based on efficiency.
Open positions are important even if it is possible to enhance the overall benefit by allocating specific powers and rewards without full access to these positions for all.
Even when there are exclusions from certain offices, superior talent can still be attracted and performance improved; however, the principle of open positions ensures fair treatment.
If positions are not fairly open to all, those excluded would justifiably feel wronged, regardless of the overall benefits derived from the efforts of those in position.
This exclusion deprives individuals of significant aspects of human good, specifically the realization of oneself through meaningful social engagement.
Importance of the Basic Structure
The primary subject of justice, according to the theory of justice as fairness, is the basic structure.
Though all ethical theories acknowledge the basic structure’s relevance to justice, their treatment may differ.
Justice as fairness interprets society as a collaborative effort aimed at mutual benefit, with the basic structure being a public system of rules that outlines a framework for cooperative activities.
This structure enables individuals to collectively produce greater benefits and assigns recognized claims to share in the outcomes based on contributions made according to public rules.
Concept of Pure Procedural Justice
The concept of pure procedural justice suggests the social system should be designed to yield just outcomes, irrespective of the nature of those outcomes, provided they fall within a reasonable range.
Pure procedural justice can be contrasted with perfect and imperfect procedural justice.
Perfect Procedural Justice
Illustrated through a fair cake division scenario:
One individual divides the cake and takes the last piece, incentivizing equal division among others.
Key features:
There exists a predetermined independent standard defining a fair division.
A procedure can be established that guarantees the desired result.
Notable assumptions include the divider's ability to divide equally and the desire to maximize their share, though details can be overlooked for conceptual clarity.
Imperfect Procedural Justice
Exemplified by a criminal trial, where the desired outcome is to declare the defendant guilty only if the crime is committed.
Legal rules are framed to find and establish the truth, but designing infallible rules to ensure correct outcomes is generally unattainable.
A trial may lead to incorrect outcomes (e.g., wrongful conviction or acquittal) due to circumstances beyond human control, referred to as miscarriages of justice.
Imperfect procedural justice maintains an independent criterion for the correct outcome but lacks guaranteed procedures ensuring that outcome is achieved.
Pure Procedural Justice Explained
Defined as a scenario where there is no independent criterion for what is just; instead, a correct or fair procedure ensures fair outcomes, regardless of the specific result.
Illustrated via gambling examples:
Multiple fair bets lead to a fair distribution of cash, as long as bets are voluntary and fair.
Each distribution resulting from these bets is equally fair, provided the procedure is properly followed.
The key is the necessity of conducting the actual procedure to achieve justice; abstract fairness cannot confirm any distribution as just.
Implications for Distributive Justice
Applying pure procedural justice requires establishing and impartially administering a just system of institutions.
Only within the framework of a just basic structure can the requisite procedure for distributive justice be identified.
The role of the fair opportunity principle is to ensure pure procedural justice within cooperation systems.
Practical benefits of focusing on pure procedural justice include eliminating the complexities of continuously monitoring shifting individual circumstances.
The basic structure is assessed from a broader perspective rather than singular transactions; thus, the principles of distributive justice are not evaluated in isolation from the systemic context.
The two principles of justice do not approach distributive justice purely as an issue of allocative justice.
Allocative justice pertains to the fair division of goods among individuals with known desires, needs, and no existing cooperative ties.
In allocative contexts, goods may be shared based on desires or needs, often reflecting utilitarian perspectives which compare outcomes by their utility.
Utilitarianism lacks the understanding of the basic structure as a pure procedural justice scheme since it relies on independent standards for assessing distributions based on efficiency maximization rather than fairness in process.
Lexical Ordering of Principles
Current assumptions treat the two parts of the second principle as lexically ordered.
This ordering creates a structured approach that benefits inquiry into distributive justice, shifting from generalities to investigating specific conditions under which such orderings might be selected.
The conceptual framework aims for simplicity and clarity regarding what constitutes a just basic structure, leveraging varied notions such as the veil of ignorance, lexical ordering, and the least favored position.
Summary
The relationship between formal and substantive justice highlights that the validity of formal justice systems relies on the ethical correctness of institutions. Substantive justice, which includes claims of fairness, often clashes with the interests of individuals benefitting from unjust systems. The principles of justice propose equal basic liberties for all, and social inequalities must ultimately benefit everyone and remain accessible. An emphasis on fair equality of opportunity distinguishes itself from merely allowing careers for talented individuals. The concept of pure procedural justice outlines that the process to achieve fairness is crucial, even without independent criteria for just outcomes. This framework demands a just basic structure to administer distributive justice, focusing on fair processes rather than merely equitable distributions. Through this lens, justice becomes a collective effort grounded in mutual benefit and fair cooperation among all members of society.