Collected Papers

John Rawls, Samuel Freeman

• Publisher: Harvard University Press
• Year: 2001
• Print ISBN: 9780674005693, 9780674137394
• eBook ISBN: 9780674255753
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

John Rawls's work on justice has drawn more commentary and aroused wider attention than any other work in moral or political philosophy in the twentieth century. Rawls is the author of two major treatises, A Theory of Justice (1971) and Political Liberalism (1993); it is said that A Theory of Justice revived political philosophy in the English-speaking world.

But before and after writing his great treatises Rawls produced a steady stream of essays. Some of these essays articulate views of justice and liberalism distinct from those found in the two books. They are important in and of themselves because of the deep issues about the nature of justice, moral reasoning, and liberalism they raise as well as for the light they shed on the evolution of Rawls's views. Some of the articles tackle issues not addressed in either book. They help identify some of the paths open to liberal theorists of justice and some of the knotty problems which liberal theorists must seek to resolve.

A complete collection of John Rawls's essays is long overdue.

1

Outline of a Decision Procedure for Ethics

(1951)

1.1 The question with which we shall be concerned can be stated as follows: Does there exist a reasonable decision procedure which is sufficiently strong, at least in some cases, to determine the manner in which competing interests should be adjudicated, and, in instances of conflict, one interest given preference over another; and, further, can the existence of this procedure, as well as its reasonableness, be established by rational methods of inquiry? In order to answer both parts of this question in the affirmative, it is necessary to describe a reasonable procedure and then to evidence that it satisfies certain criteria. This I attempt to do beginning at 2.1 below.

1.2 It should be noted that we are concerned here only with the existence of a reasonable method, and not with the problem of how to make it psychologically effective in the settling of disputes. How much allegiance the method is able to gain is irrelevant for our present purposes.

1.3 The original question has been framed the way it is because the objectivity or the subjectivity of moral knowledge turns, not on the question whether ideal value entities exist or whether moral judgments are caused by emotions or whether there is a variety of moral codes the world over, but simply on the question: does there exist a reasonable method for validating and invalidating given or proposed moral rules and those decisions made on the basis of them? For to say of scientific knowledge that it is objective is to say that the propositions expressed therein may be evidenced to be true by a reasonable and reliable method, that is, by the rules and procedures of what we may call “inductive logic”; and, similarly, to establish the objectivity of moral rules, and the decisions based upon them, we must exhibit the decision procedure, which can be shown to be both reasonable and reliable, at least in some cases, for deciding between moral rules and lines of conduct consequent to them.

2.1 For the present, we may think of ethics as being more analogous to the study of inductive logic than to any other established inquiry. Just as in inductive logic we are concerned with discovering reasonable criteria which, when we are given a proposition, or theory, together with the empirical evidence for it, will enable us to decide the extent to which we ought to consider it to be true so in ethics we are attempting to find reasonable principles which, when we are given a proposed line of conduct and the situation in which it is to be carried out and the relevant interests which it effects, will enable us to determine whether or not we ought to carry it out and hold it to be just and right.

2.2 There is no way of knowing ahead of time how to find and formulate these reasonable principles. Indeed, we cannot even be certain that they exist, and it is well known that there are no mechanical methods of discovery. In what follows, however, a method will be described, and it remains for the reader to judge for himself to what extent it is, or can be, successful.

2.3 First it is necessary to define a class of competent moral judges as follows: All those persons having to a certain requisite degree each of the following characteristics, which can, if desired, be made more determinate:

(i) A competent moral judge is expected to have a certain requisite degree of intelligence, which may be thought of as that ability which intelligence tests are designed to measure. The degree of this ability required should not be set too high, on the assumption that what we call “moral insight” is the possession of the normally intelligent man as well as of the more brilliant. Therefore I am inclined to say that a competent moral judge need not be more than normally intelligent.

(ii) A competent judge is required to know those things concerning the world about him and those consequences of frequently performed actions, which it is reasonable to expect the average intelligent man to know. Further, a competent judge is expected to know, in all cases whereupon he is called to express his opinion, the peculiar facts of those cases. It should be noted that the kind of knowledge here referred to is to be distinguished from sympathetic knowledge discussed below.

(iii) A competent judge is required to be a reasonable man as this characteristic is evidenced by his satisfying the following tests: First, a reasonable man shows a willingness, if not a desire, to use the criteria of inductive logic in order to determine what is proper for him to believe. Second, a reasonable man, whenever he is confronted with a moral question, shows a disposition to find reasons for and against the possible lines of conduct which are open to him. Third, a reasonable man exhibits a desire to consider questions with an open mind, and consequently, while he may already have an opinion on some issue, he is always willing to reconsider it in the light of further evidence and reasons which may be presented to him in discussion. Fourth, a reasonable man knows, or tries to know, his own emotional, intellectual, and moral predilections and makes a conscientious effort to take them into account in weighing the merits of any question. He is not unaware of the influences of prejudice and bias even in his most sincere efforts to annul them; nor is he fatalistic about their effect so that he succumbs to them as being those factors which he thinks must sooner or later determine his decision.

(iv) Finally, a competent judge is required to have a sympathetic knowledge of those human interests which, by conflicting in particular cases, give rise to the need to make a moral decision. The presence of this characteristic is evidenced by the following: First, by the person’s direct knowledge of those interests gained by experiencing, in his own life, the goods they represent. The more interests which a person can appreciate in terms of his own direct experience, the greater the extent to which he satisfies this first test. Yet it is obvious that no man can know all interests directly, and therefore the second test is that, should a person not be directly acquainted with an interest, his competency as a judge is seen, in part, by his capacity to give that interest an appraisal by means of an imaginative experience of it. This test also requires of a competent judge that he must not consider his own de facto preferences as the necessarily valid measure of the actual worth of those interests which come before him, but that he be both able and anxious to determine, by imaginative appreciation, what those interests mean to persons who share them, and to consider them accordingly. Third, a competent judge is required to have the capacity and the desire to lay before himself in imagination all the interests in conflict, together with the relevant facts of the case, and to bestow upon the appraisal of each the same care which he would give to it if that interest were his own. He is required to determine what he would think to be just and unjust if each of the interests were as thoroughly his own as they are in fact those of other persons, and to render his judgment on the case as he feels his sense of justice requires after he has carefully framed in his mind the issues which are to be decided.

2.4 Before considering the next step in the development of the method here adopted, it is necessary to make some comments on the previous remarks. First, the tests for defining and determining the class of competent moral judges are vague; that is, given a group of persons, there would be, in all probability, instances in which we could not decide whether a person is a competent moral judge or not. Yet we do recognize in everyday life the pattern of characteristics discussed above; we do think that certain individuals exhibit them to a comparatively pre-eminent degree, and these individuals we call “reasonable” or “impartial”; it is men of their character whom we want to decide any case in which our interests are at stake. Thus, while the foregoing tests are admittedly not precise, they do describe and select a recognized type of person; and those persons who do satisfy them beyond any reasonable doubt, will be called “competent moral judges.”

Second, it is important to note that a competent judge has not been defined by what he says in particular cases, nor by what principles he expresses or adopts. Competence is determined solely by the possession of certain characteristics, some of which may be said to be capacities and achievements (intelligence and knowledge), while others may be said to be virtues (thus, the intellectual virtues of reasonableness). It will become clear in later sections why we cannot define a competent judge, at least at the beginning of our inquiry, as one who accepts certain principles. The reason is that we wish to say of some principles for adjudicating interests that one ground for accepting them as reasonable principles is that competent judges seem to apply them intuitively to decide moral issues. Obviously if a competent judge were defined as one who applies those principles, this reasoning would be circular. Thus a competent judge must not be defined in terms of what he says or by what principles he uses.

Third, one should note the kind of characteristics which have been used to define a competent moral judge: namely, those characteristics which, in the light of experience, show themselves as necessary conditions for the reasonable expectation that a given person may come to know something. Thus, we think of intelligence as being such a condition in all types of inquiry; and similarly with knowledge, since the more a man knows, the greater the likelihood of his success in further inquiry. Again, not only is it necessary to have certain abilities and achievements but, to be a good investigator, a person must develop those habits of mind and thought which we may call “intellectual virtues” (cf. 2.3 [iii]). Finally, there are those habits and capacities of thought and imagination which were described in connection with sympathetic knowledge of human interests. Just as intellectual capacities and virtues are found to foster the conditions necessary for successful inquiry of whatever type, so these habits and capacities are believed to be necessary for making fair decisions on moral issues. We may call them the “virtues of moral insight” with the understanding that they do not define either the content or the nature of moral insight, but, assuming it exists, simply represent those habits and capacities which secure the conditions under which we believe it most likely to assert itself effectively. Thus the defining characteristics of a competent judge have not been selected arbitrarily, but in each case there is a reason for choosing them which accords with the purpose of coming to know.

Finally, we can make these remarks clearer if we consider other methods of choosing the class of competent judges. It is one of the marks of an ideology that it violates the above criteria. Ideologies, of whatever type, claim a monopoly of the knowledge of truth and justice for some particular race, or social class, or institutional group, and competence is defined in terms of racial and/or sociological characteristics which have no known connection with coming to know. In the present method care has been exercised to select the class of competent moral judges according to those characteristics which are associated with coming to know something, and not by means of characteristics which are the privileged possession of any race, class, or group, but which can and often do belong, at least to a certain degree, to men everywhere.

2.5 The next step in the development of our procedure is to define the class of considered moral judgments, the determining characteristics of which are as follows:

(i) It is required first that the judgment on a case be given under such conditions that the judge is immune from all of the reasonably foreseeable consequences of the judgment. For example, he will not be punished for deciding the case one way rather than another.

(ii) It is required that the conditions be such that the integrity of the judge can be maintained. So far as possible, the judge must not stand to gain in any immediate and personal way by his decision. These two tests are designed to exclude judgments wherein a person must weigh the merit of one of his own interests. The imposition of these conditions is justified on the grounds that fear and partiality are recognized obstructions in the determination of justice.

(iii) It is required that the case, on which the judgment is given, be one in which there is an actual conflict of interests. Thus, all judgments on hypothetical cases are excluded. In addition, it is preferable that the case be not especially difficult and be one that is likely to arise in ordinary life. These restrictions are desirable in order that the judgments in question be made in the effort to settle problems with which men are familiar and whereupon they have had an opportunity to reflect.

(iv) It is required that the judgment be one which has been preceded by a careful inquiry into the facts of the question at issue, and by a fair opportunity for all concerned to state their side of the case. This requirement is justified on the ground that it is only by chance that a just decision can be made without a knowledge of the relevant facts.

(v) It is required that the judgment be felt to be certain by the person making it. This characteristic may be called “certitude” and it is to be sharply distinguished from certainty, which is a logical relation between a proposition, or theory, and its evidence. This test is justified on the ground that it seems more profitable to study those judgments which are felt to be correct than those which seem to be wrong or confused even to those who make them.

(vi) It is required that the judgment be stable, that is, that there be evidence that at other times and at other places competent judges have rendered the same judgment on similar cases, understanding similar cases to be those in which the relevant facts and the competing interests are similar. The stability must hold, by and large, over the class of competent judges and over their judgments at different times. Thus, if on similar cases of a certain type, competent judges decided one way one day, and another the next, or if a third of them decided one way, a third the opposite way, while the remaining third said they did not know how to decide the cases, then none of these judgments would be stable judgments, and therefore none would be considered judgments. These restrictions are justified on the grounds that it seems unreasonable to have any confidence that a judgment is correct if competent persons disagree about it.

(vii) Finally, it is required that the judgment be intuitive with respect to ethical principles, that is, that it should not be determined by a conscious application of principles so far as this may be evidenced by introspection. By the term “intuitive” I do not mean the same as that expressed by the terms “impulsive” and “instinctive.” An intuitive judgment may be consequent to a thorough inquiry into the facts of the case, and it may follow a series of reflections on the possible effects of different decisions, and even the application of a common sense rule, e.g., promises ought to be kept. What is required is that the judgment not be determined by a systematic and conscious use of ethical principles. The reason for this restriction will be evident if one keeps in mind the aim of the present inquiry, namely, to describe a decision procedure whereby principles, by means of which we may justify specific moral decisions, may themselves be shown to be justifiable. Now part of this procedure will consist in showing that these principles are implicit in the considered judgments of competent judges. It is clear that if we allowed these judgments to be determined by a conscious and systematic application of these principles, then the method is threatened with circularity. We cannot test a principle honestly by means of judgments wherein it has been consciously and systematically used to determine the decision.

2.6 Up to this point I have defined, first, a class of competent judges and, second, a class of considered judgments. If competent judges are those persons most likely to make correct decisions, then we should take care to abstract those judgments of theirs which, from the conditions and circumstances under which they are made, are most likely to be correct. With the exception of certain requirements, which are needed to prevent circularity, the defining characteristics of considered judgments are such that they select those judgments most likely to be decided by the habits of thought and imagination deemed essential for a competent judge. One can say, then, that those judgments which are relevant for our present purposes are the considered judgments of competent judges as these are made from day to day on the moral issues which continually arise. No other judgments, for reasons previously stated, are of any concern.

3.1 The next step in the present method is as follows: once the class of considered judgments of competent judges has been selected, there remains to discover and formulate a satisfactory explication of the total range of these judgments. This process is understood as being a heuristic device which is likely to yield reasonable and justifiable principles.

3.2 The term “explication” is given meaning somewhat graphically as follows: Consider a group of competent judges making considered judgments in review of a set of cases which would be likely to arise in ordinary life. Then an explication of these judgments is defined to be a set of principles, such that, if any competent man were to apply them intelligently and consistently to the same cases under review, his judgments, made systematically nonintuitive by the explicit and conscious use of the principles, would be, nevertheless, identical, case by case, with the considered judgments of the group of competent judges. The range of an explication is specified by stating precisely those judgments which it is designed to explicate, and any given explication which successfully explicates its specified range is satisfactory.

3.3 The next objective, then, in the development of the present method is to discover and formulate an explication which is satisfactory, by and large, over the total range of the considered judgments of competent moral judges as they are made from day to day in ordinary life, and as they are found embodied in the many dictates of commonsense morality, in various aspects of legal procedure, and so on. If reasonable principles exist for deciding moral questions, there is a presumption that the principles of a satisfactory explication of the total range of the considered judgments of competent judges will at least approximate them. On the basis of this presumption the explication of these judgments is designed to be a heuristic device for discovering reasonable principles. Therefore, while explication is an empirical inquiry, it is felt that it is likely to be a w...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Editor’s Preface
• 1 Outline of a Decision Procedure for Ethics
• 2 Two Concepts of Rules
• 3 Justice as Fairness
• 4 Constitutional Liberty and the Concept of Justice
• 5 The Sense of Justice
• 6 Legal Obligation and the Duty of Fair Play
• 7 Distributive Justice
• 8 Distributive Justice: Some Addenda
• 9 The Justification of Civil Disobedience
• 10 Justice as Reciprocity
• 11 Some Reasons for the Maximin Criterion
• 12 Reply to Alexander and Musgrave
• 13 A Kantian Conception of Equality
• 14 Fairness to Goodness
• 15 The Independence of Moral Theory
• 16 Kantian Constructivism in Moral Theory
• 17 Social Unity and Primary Goods
• 18 Justice as Fairness: Political not Metaphysical
• 19 Preface for the French Edition of A Theory of Justice
• 20 The Idea of an Overlapping Consensus
• 21 The Priority of Right and Ideas of the Good
• 22 The Domain of the Political and Overlapping Consensus
• 23 Themes in Kant’s Moral Philosophy
• 24 The Law of Peoples
• 25 Fifty Years after Hiroshima
• 26 The Idea of Public Reason Revisited
• 27 Commonweal Interview with John Rawls
• Credits
• Index