John Rawls developed a unique theory of justice and ethics based on liberalism and fair equal opportunities. The subject matter of the theory is the ‘basic structure’ of society, the point of the theory is to provide a set of principles which regulate the ‘basic structure’ such that the terms of association within a society are fair and consequently the society is well-ordered. Rawls defends two principles of justice to regulate the ‘basic structure’ of a well-ordered society, these are the equal liberty principle and his conception of democratic equality which comprises both fair equality of opportunity and the difference principle.
The social contract method is crucial for Rawls because it provides a justification which accommodates this conception of individuals as free and equal. Such a conception when fully worked out is, he argues, more likely to be consistent with fundamental intuitions about the priority of the person, and it was precisely its inability to make sense of these intuitions which lead Rawls to reject utilitarianism.
A liberal polity structured in accordance with Rawls’s two principles of justice is justifiable not because it maximizes welfare, but because it would be chosen in a hypothetical initial contract. Even though the contract situation can only be hypothetical, the contractarian method serves two purposes; first, it provides a mechanism for choosing the two principles of justice; and second, it aims to show philosophers why people ought to accept the terms of association specified by the two principles.
It achieves this second task by showing that the principles do not disadvantage philosophers in order to advantage someone else, as utilitarian principles might, and because they recognize status as equals. While the contractarian method imbues the whole of Rawls’s conception of ‘justice as fairness’, the main focus of discussion and criticism has been his account of the hypothetical contract and in particular the ‘original position’ and the ‘veil of ignorance’.
The ‘original position’ is the hypothetical situation of choice under which individuals choose among the rival candidate principles of justice, those principles which ought to apply to the ‘basic structure’ of society. Rawls had assumed there that since the two principles of justice comprising ‘justice as fairness’ were chosen in the ‘original position’ they would become part of the comprehensive morality of a society for that reason. “They express the result of leaving aside those aspects of the social world that seem arbitrary from a moral point of view”.
Rawls uses this conception of the person to ground principles of justice which are impartial between individuals’ beliefs and conceptions of the good so that the resultant liberal polity will be neutral in its dealings with such individuals. It is only by adopting such an abstract conception of the moral subject that Rawls can provide an Archimedean point within the ‘original position’ from which genuinely impartial and universal principles must be chosen. The point of critique is to show that Rawls’s social contract theory and the conception of the person upon which it is premised is incoherent and cannot justify his liberal theory of justice as impartiality. “They maintain that moral judgments are implicitly utilitarian in the sense that when confronted with a clash of precepts”.
This seems an over hasty conclusion and one that many liberals have been unprepared to accept. Rawls just makes life difficult for himself by adopting such an abstract and philosophically implausible account of the person in order to ground an impartial perspective. The critique of the Rawlsian subject is intended to show not only that there is some incoherence in the idea of such a radically abstract chooser, but also that there is an unbridgeable gap between the moral perspective of impartiality in the ‘original position’ and the person outside the ‘original position’ who is in full knowledge of his beliefs, values and interests.