JOHN
RAWLS:
A
THEORY
OF
JUSTICE
D.
J.
BENTLEYt
The
object
of
this
piece
is
to
offer
a
few
reflections,
provisional
and
far
from
rigorous
in
character,
on
Professor
Rawls'
A
Theory
of
Justice.
In
essence,
I
shall
be saying
no
more
than
"this
seems
difficult,"
or
"important"
or
(rarely)
"unsatisfactory."
Rawls
is,
of
course,
a
philosopher;
I
am
trained
as
a
lawyer,
and
I
can
only
ask
that
the
following
remarks
be
received
de
bene
esse.
I
It may
be
helpful
to
those
who
are
not
familiar
with
Rawls
to
plot
his
position
against
a
better-known
moral
theory,
namely
utilitari-
anism.
At
any
rate,
on
this
side
of
the
Atlantic,
where
no
modern
charter
contains
the
compact
under
which
we
consent
to
be
governed,
the
defence
of
truth
and
justice
has
most
often
in
the
last
hundred
years appeared
to
be
in
the
hands
of
the
utilitarians.
This
raises
two
immediate
questions:
first,
is
justice
a
"special
department"
of
moral-
ity?
And
second,
do
we
by
this
mean
to
commit
ourselves
further
to
the
position
that
the
province
of
justice
is
not
(whatever
be
the
case
for
the
rest
of
morality)
governed
by
the
principles
of
utility?
After
looking
at
these
questions,
we
can
go
on
to
assess
the particular
solution
proposed
by
Rawls.
It
is
perfectly
possible to
be,
broadly, an
utilitarian
and
yet
to
give
the
principles
of
justice
a
special
status.
For
instance,
in
The
Con-
cept
of
Law,
Professor
Hart
carefully
distinguishes "fairness"
(which
roughly
covers
justice)
from
morality
in
general.'
And
Hart,
I
suppose,
is
a
modern
utilitarian.
Why
should
the
two ever
have
been confused?
The
explanation can
be
found
by
looking
at
Mill's
chapter
on
the
con-
nection
between
justice
and
utility.
2
Mill
rightly
saw
the idea
of
justice
as
an
obstacle
to
the
simple
test
of
utility
in
assessing
right
and
wrong.
People,
that
is,
went
on
referring
to
this
rather
old
fashioned
notion,
and
seemed
remarkably attached
to
it,
despite being
urged
to
look
to
expediency
instead.
But
to
Mill,
this
notion
of
justice
had to
be
either
irrational
or
the
reflection
of
the
operation
of
a
perhaps
concealed
principle
of
utility.
I
Tutor
and
Lecturer in
Jurisprudence,
Christ
Church,
Oxford.
B.C.L.
1957,
MA.
1960,
Oxford
University.
I
H.LA.
HART,
Tim
CoNcEPT
or
LAw
153-55
(1961).
2
J.S.
MiLL,
U=TmaNixTr,
LiBExR,
w
REPRESENTATIVE
GovmanmNT
51-80
(1951).
RAWLS'
THEORY
OF
JUSTICE
To
arrive
at
this
position
Mill
took
one
sure and
one
false
step.
As
he
rightly
says,
"[t]
hat
a
feeling
is
bestowed
on
us
by
Nature,
does
not
necessarily
legitimate
all
its
promptings.
'8
To
feel
that
something
is
just
or
unjust
cannot
be
the
test
of
its
justice
or
injustice
unless,
as
Mill
says,
one
believes
that
justice
is
some
special
quality
("intrinsically
peculiar")
which
can
only
be
perceived
by
what
amounts
to
a
"special
revelation."
This
is
a
pretty
familiar
sort
of
argument
of course.
But
then
Mill
offers
a
false
choice
for
us:
either
the
feelings
of
justice
are
sui
generis
perceptions
like
taste
or
smell,
so
that
debates
about
justice
are
to
be
resolved
by
asking
"does
it
feel
just?,"
as
one
might
ask
whether
a
cup
of
tea
has
enough
sugar,
or
justice
is
only
a
combination
of
certain
other
qualities
of
a
thing
"presented
under
a
peculiar
aspect."
Mill
goes
for
the
latter,
and
his
treatment
of
justice
appears
at
times
more
akin
to
social
psychology
than
moral
philosophy,
for
he regards
the
powerful
sentiments
evoked
in
this
area
as
what
are really
in
need
of
explanation.
The
resulting
index
of
justice
is
simple:
utility.
In
fact,
the
choice
Mill
puts
before
us-utility
or
the
special
quality-is,
at
least
as
he
presents
it,
too
restricted.
There
is
a
middle
way,
which
a
theory
like
Rawls'
exemplifies,
though
no
doubt
other
non-utilitarian
but
rational
theories
of
ethics
can
be
devised.
This
view
accepts
readily
that
justice
is
"a
thing
intrinsically
peculiar,
and
distinct
from
all
. . .
other
qualities"
4
but
denies
that
it
is
to be
discovered
by the
"peculiar
revelation"
which
Mill
rightly
distrusts.
Briefly,
this
sort
of
theory
would
assert
(a)
that
justice
is
a
special
department
of
morality;
and
(b)
that
what
makes
it
special
is
not
simply
the
ground
it
covers
(by
which
I
mean
fair
procedure,
etc.)
but
also
the
kinds
of
arguments
that
are
deployed
over
that
territory.
It
is
one
of
the
more
entertaining
consequences
of
this
divergence
of
approaches
that
when
Mill
considers
the
thoroughly
Rawlsian
maxim
"so
act
that
thy
rule
of
conduct
might
be
adopted
as
a
law
by
all
rational
beings,"
he
turns
Kant
into
a
utilitarian:
8
but
what
else
could
Mill
have
done?
It
is
now
time
to
look
a
little
more
closely
at
the
way
Rawls
treats
justice;
after
that,
I
shall
take
up
some
points
which,
I
am
sure,
are
both
important
and
yet
by
no
means
obvious.
II
Rawls
sets
out
his
main
thesis
at
an
early
stage;
much
of
the
rest
of
the
book
is
concerned
with
refining
the early
broad
statement
3Id.
51.
4
Id.
52.
GId.
64-65.
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of
principle,
developing
the
philosophical
arguments
on
which his
case
rests
(and
knocking
down
objections)
and applying
his
theory
to
particular
problems.
There
is
for
Rawls
a preliminary
distinction
to be
drawn
between
the
concept
of
and
various
conceptions
of
justice.
Men
recognize
the
concept
of
justice
when
they
"understand the
need
for, and are
prepared
to
affirm,
a characteristic
set
of
principles
for
assigning
basic
rights
and
duties
and
for
determining
what
they
take
to
be
the proper
distribution
of
the
benefits
and
burdens
of
social
cooperation.""
A
conception
of
justice, then,
consists
of
any
set
of
definite
principles
selected
as
being
correct.
I
must
confess
to
some
doubt
here:
can
justice,
and perhaps
other fundamental
notions
in
political
philosophy,
be
so
easily
and
unequivocally
distributed
be-
tween
concept
and
conception?'
A
lot
perhaps
depends
on
the
force
and
fineness
of
the
term
"characteristic."
In
any
case,
what
Rawls
proposes
is
a
conception
of
justice.
What,
he
asks,
are
the
basic
principles
that
"free
and
rational
persons
con-
cerned
to
further
their
own
interests
would
accept
in
an
initial
position
of
equality
as
defining
the
fundamental
terms
of
their
association"?
8
There
are
two:
"the
first
requires
equality
in
the
assignment
of
basic
rights
and
duties,
while
the
second
holds
that
social
and
economic
inequalities
.
. .
are
just
only
if
they
result
in
compensating
benefits
for
everyone,
and
in
particular
for
the
least
advantaged
members
of
society."
This
conception,
which Rawls
calls
"justice
as
fairness,"
may
appear
to be
obvious,
but
Rawls
is
after
big
game
here,
and
his
pre-
mises
cannot
be accepted
lightly.
Rawls
is
not
simply
engaged
in
a
dispute
over
definition
with his
academic
opponents,
nor
is
he
con-
cerned
to
defend
a
generally
acknowledged
good
like
liberty
of expres-
sion.
Rather,
he
is
trying
to
produce
a
set
of
principles
which
anyone
who
has
felt the
pull
of
justice
(that
is,
the
concept
of
justice)
would
acknowledge.
Sometimes
one
genuinely
does
not
know
what
would
be
the
right
thing
to
do,
and
Mill
and
Rawls
could
well
disagree.
In
such
a
case,
by
ranking justice
as
the
prime
virtue,
and
in
turn
ranking
his
two
principles
of
justice,
Rawls
is
arguing
that
alternative
solutions
to
conflicts of
principle
are incorrect, whether
or
not
they
are
presented
in the
name
of
justice.
We
are
being
offered,
then,
a
social
contract
theory
in
place
of
61J.
RAwILs,
A
THEoRY
OF
JVSTICE
5
(1971).
See
also
id.
7-11.
7
Cf.
Dworkin,
The
Jurisprudence
of
Richard
Nixon,
N.Y.
R
v.
or
Boo3Ks,
May
4,
1972,
at
27
(employing
such
a
distinction).
8
J.
RAwLs,
supra
note
6,
at
11.
9
Id,
14-15.
RAWLS'
THEORY
OF
JUSTICE
the
long-lived
rationalist
ethic
of
utilitarianism.
It
is of
course
a
hypo-
thetical contract
for
this
is
an
exercise
in moral philosophy, in
the
criticism
of
institutions,
and
not
an
attempt
to
explain
how
social
arrangements
have
actually
come
about.
Thus
we
are
not entitled
to
ask,
as
did
Hume,
"what
authority
any
moral
reasoning
can
have,
which
leads
into
opinions
so
wide of
the
general
practice
of
mankind."
But
there
is
a
further
question which
also
turns
on
the
relationship"
between
statements
of
fact
and
moral
judgments:
how
does
the
mere
fact
that
certain
principles
of
the
moral
contract
may
be
selected,
insure
that
those
principles
are
the
correct
ones?
This
goes
to
the
heart
of
"justice
as
fairness,"
and
in
light
of
this
question
we
may
note
immediately
two
features
of
Rawls'
theory.
First,
it
does
not
attempt
to
embrace
the
whole
field
of
morality.
"Rightness
as
fairness"
must
wait
its
turn,
although
Rawis
seems
to
consider
that
such generalisa-
tion
would
be
worth
a
try.
Second,
and
this
seems
to
me
to
be
more
serious
for
those
trying
to
find
their
bearings
in
the
Rawls universe,
his
concern
is
primarily
to
give
an
account
of
the kind
of
ideal
social
arrangements
that
adherence
to
his
principles
would engender.
This
leads
Rawls
to
devote
a
great
deal
of
attention
to
very
fundamental
issues
of
social
organization
(hierarchies
and
savings
in
the
design
of
institutions,
etc.)
and
rather
less
attention
to
what
could
roughly speaking
be
called
jurisprudential
problems,
which fall
into
what
he
terms
"partial
compliance
theory",
that
is,
the
adapta-
tion
of
his
theory
to
the
world
we
actually
live
in,
where
people
are
not
necessarily
free,
rational
or
just,
where disobedience exists
and
punishment may
be
necessary.'
0
As
a consequence
of
this
concentra-
tion
on
"strict
compliance
theory," the
follower
of
Rawls
is
left
with
a
significant
difficulty
in
explaining
how
a
theory
derived from
the
postulated
choices
of
men
in
an
imaginary
state
of
affairs
can
have
any
applicability
to conduct
in
the
real
world.
I
shall
return
to
this
difficult
question
later.
III
I
want
now
to
look
a
little
more
closely
at
certain
aspects
of
this
theory.
First,
I
should
like
to
go
back
to
the
question
of
what
makes
this
conception
a
moral
one:
why
are
we
entitled
to
say
that
what
men
would
choose
is
what
they
are
right
to
choose?
Briefly,
the
answer
is
that
it
is
not
what
they
choose,
but
the way
they
choose,
that
insures
the morality
of
their
choice.
The
terms
of
the
contract
are
settled
by
men
in
a
situation
in
which
they
know
very
little
about
themselves
10
Id.
8-9.
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and
their
circumstances;
in
Rawls'
terms
they
choose
behind
a
veil
of
ignorance.
In
this
position
they
will
settle
only
for
a
society
in
which basic
fair
treatment
is
guaranteed
to
each
individual.
Rawls'
conception is
thus
deliberately
prepared
to
meet
a
basic
question
which
can
be
asked
about
any
society:
why
should
a
person
be
ex-
pected
to
assent
to
its
arrangements-what
do
they
offer
him?
In
this
way
the theory
is
sharply
differentiated
from
any
utilitarian
theory,
according
to
which
the
pursuit
of
happiness
for the greatest
number
precludes
the
possibility
of
guaranteeing
fairness
of
treatment
to
the
individual.
Rawls can
argue
then
that
the
utilitarian.
claim
to
count
each person
as
one,
no
one
to
count
for
more, no
one
for
less,
is
thoroughly
misleading.
Prior
to
it
should be
a
commitment
to
the
notion
of
individual
personality,
too
basic
to be
at
the
mercy
of
a
felicific
calculus.
Two
points
need
consideration.
First,
how
does
Rawls know
that
this
is
how
rational
beings
would
behave
in
the
"original
position"?
I
think
the
answer
must
be
that
Rawls
has loaded
the
odds
fairly
heavily against
any
other
choice.
A
gambler
would
be
taking
a
fearful
risk,
not
only
for
himself
but
also
on
behalf
of
his children
and
his
children's
children,
if
he
turned
out
to be
born
on
the
wrong
side
of
the
tracks
in
a fundamentally
unjust
society.
As
a
way
of
eliminating
some
rather
extreme options,
this
approach
has
its
attractions,
but
in
less
drastic
situations
its
role
is
less
clear.
Were
the
gambler
assured
of some
measured
amount
of
fairness
of
treatment,
he
might
be
will-
ing to
risk any
additional
fairness.
This
goes,
of
course,
to
the
mini-
mum
definition
of
fair treatment.
But
the
point
is
that
that
standard
might
be
sufficiently
low
that
Rawis'
two
subsidiary
principles
would
not
follow
as
a
matter
of
course.
The
second
comment
that
I
would
make
about
the
alleged
ethical
superiority
of
Rawlsian
over
utilitarian
justice
is
perhaps
an
index
of
the
difficulty
that
I
find
in
interpreting
the
utilitarians
rather than
a
point
against
Rawis.
Obviously
if
Rawls
and
the
utilitarians
really
diverge,
this
ought
to
show
up
in
their
treatment
of
rights
against
society.
At
first
sight
this
appears to be
the
case.
Mill,
for instance,
considers
that
justice
is
closely
bound
up
with
the notion
of
rights,
and
that
"[t]
o
have
a
right
[is]
to
have something which
society
ought
to
defend
me
in
the
possession
of.
If
the
objector
goes
on
to
ask,
why
it
ought?
I
can
give
him
no
other
reason
than
general
utility."'
1
Now
I
think
it
is
at
any rate
arguable
that
this
dictum should
not
be
treated
as
conclusive
proof
that
Mill
does
not
understand what
rights
11
J.S.
MiL,
supra
note
2,
at
66.