Rawls, John. 1958. “Justice as Fairness.” The Philosophical Review 67 (2). [Duke University Press, Philosophical Review]: 164–94.
Section I claims that the fundamental idea for the concept of justice is fairness.
Section II introduces the two principles of this conception.
Section III explains how these two principles are arrived at.
Section IV pre-empts possible criticisms against justice as fairness as developed in Sections II and III.
Section V sketches why fairness should be central to any concept of justice.
Section VI characterises the utilitarian conception of justice as one concerned with efficacy.
Section VII discusses why such utilitarianism fails as a conception of justice.
The fundamental idea in the concept of justice is fairness. The paper will try to justify this claim. It is this aspect of justice (as fairness) that classical utilitarianism fails to account for.
Three things should be kept in mind. First, justice is considered as a virtue of social institutions (henceforth “practices” as Rawls does) and its function is essentially distributive. Second, justice is considered as only one of the many virtues of practices. Justice is just one aspect of any conception of a good society. Third, the principles of justice discussed below are not the principles of justice.
There are two principles of justice as fairness:
(a) first, 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;
(b) and second, inequalities 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 first principle expresses a presumption against “distinctions and classifications” created by practices. Put another way, the first principle presumes an original situation of equality. However, it does not rule out deviations from this state — “there can be, and there often is, a justification for doing so”.
The second principle defines what sort of deviations from this original situation of equality — or inequalities — permissible. First, only those inequalities are permitted which benefit everyone. Second, those offices and positions that have benefits attached to them must be open for all to acquire through fair competition.
How are these two principles arrived at?
Imagine a society of persons where a system of practices is well in place. Now suppose that they are, by and large, mutually self-interested. This means that they are self-interested but not always so. They have loyalties to their families, nations, churches and the like whose interests they also pursue. This does not imply however that they are mutually self-interested under all circumstances. They are so only when they participate in “common practices”. Also, suppose also that they are rational meaning that (a) they know their own interests, (b) they can foresee the consequences of their actions, (c) they can adhere to their chosen course of action, (d) they can resist enticements for immediate gain, and (e) they are comfortable with certain limited differences in their condition and that of others. Finally, suppose that they have similar needs and interests which enables their fruitful cooperation.
This society of mutually self-interested, rational, and similarly situated persons, since they already have a system of practices in place, can be imagined to regularly discuss complaints about the practices they have set up. They first establish the principles based on which their complaints will be judged by letting everyone propose the principles based on which he thinks complaints should be tried. This is done on the understanding that once the principles are adopted, they will be binding on all future occasions. This provision disallows principles that may be peculiarly advantageous for a particular complaint as they will be, if adopted, imposed on everyone for every complaint that might arise.
The two parts of this conjectural story have definite significance. The first part reflects the typical circumstances in which questions of justice arise. Such circumstances are those where conflicting demands are brought to bear on the design of a practice by persons insisting on what they consider to be their rights. The second part represents the constraints under which persons are brought to act reasonably. The constraints are those of morality which, at the very least, imply acknowledgement (a) of principles that must be pursued even if they conflict with self-interest and (b) that principles must be applied impartially to all.
Given the circumstances and the constraints specified by the two parts, it can be seen how the two principles of justice put forth at the beginning of Section II might come about. This is not offered as proof that those two principles will necessarily be chosen but merely to show that those principles could be chosen.
Justice on this account appears to be a sort of pact between rational and egoistic persons similar to the sort advanced by Glaucon at the beginning of Book II of Plato’s Republic. However, this is not entirely so.
First, the conjectural account does not advance any theory of human motivation (or human nature) underlying the actions and decisions of persons. The account refers simply to the fact, in the circumstances of justice, the different parties do press their conflicting and competing claims on one another and do regard themselves as representing interests which need to be considered. Second, the account does not seek to explain the establishment of any particular society or practice as most social contract theories set out to do. The different parties “jointly acknowledge certain principles of appraisal relating to their practices [which are] either already established or merely proposed” (emphases added). Third, the account does not imply that the parties are coming together for the first time. It applies even when highly developed social institutions already exist. This means that the account is not fictitious. In any society where people reflect on their practices, there will be times when principles of justice would actually be discussed in the way sketched by the account.
Thinking about justice in the manner so described brings out the idea that fairness must be central to justice. Rules of a practice are fair if they are accepted as applicable by all concerned on the basis of them (rules) being legitimate. Similarly for principles of justice. It is this idea of mutual acceptance (or mutual acknowledgement) which makes fairness central to justice because when understood through the conjectural account, the principles of justice arrived at are what can be undoubtedly called as fair since they are premised on the notion of mutual acknowledgement brought about by the condition that these principles are binding on everyone. It is this notion of mutual acknowledgement that ensures a community between persons and their practices based not on force.
If the rules of a practice are correctly acknowledged as fair, duties on the part of the parties to act in accordance with those rules when it fall upon them to comply are born. This is the duty of “fair play”. This obligation to abide by the rule does not depend on any explicit contract acknowledging the practice but merely requires knowing participation in and acceptance of the benefits of the practice.
The duty of fair play might enjoin upon the participants to sacrifice their self-interests in particular situations. This is the expected consequence of the strong commitment to the rules made in the general position (the situation described in the conjectural account, see Section III). The acceptance of the duty of fair play along with this constraint is recognition of the others as persons with similar interests and capacities, as specified in the general position.
These comments are made in order to anticipate and forestall the misinterpretation that the account presented of justice and fair play requires that there be de facto equality (“balance of powers”) in the general position. Such balance is important but is not the basis. The recognition of one another as persons with similar interests and capacities involved in a common practice is enough basis for the acceptance of the principles of justice and the duty of fair play.
One consequence of the conception as explicated thus far is that there is no moral value in satisfying a claim that is incompatible with it. Put concretely, there is no moral value in the satisfaction derived out of something which one imposes on others but would not accept for himself, regardless of the pleasure it generates.
For the classical utilitarians, justice is a kind of efficiency. Justice is tied to benevolence and benevolence is brought about through the most efficient design of institutions to promote the general welfare
A common objection is that this would “justify institutions highly offensive to our ordinary sense of justice”. However, classical utilitarianism can answer this objection. For one, individuals are considered as having roughly the same utility function and differences due to accidents of birth and upbringing are ignored. For another, they accept the idea of marginal diminishing utility. These two assumptions build a strong case for equality.
However, even if these assumptions actually operated and led to similar principles of justice, they would still be fundamentally different from justice as fairness. Firstly, in the utilitarian conception, the principles of justice are the contingent result of a higher administrative decision. Second, the individuals receiving the benefits due to the utilitarian calculus are non-related units to which resources may be allocated. Their enjoyment of the benefits has no moral connection with other persons.
It is assumed that the administrator will after considering all relevant criteria make the correct executive decision and that the principles of justice would result from this being so.
Many social decisions are of course administrative decisions. And classical utilitarianism can properly account for many of these decisions about social utility. However, as in interpretation of the principles of justice, classical utilitarianism fails.
It allows one to argue — not that the classical utilitarians did — that slavery is unjust because the disadvantage to the slaves outweighs the advantages to the slaveholder. The point is not whether the disadvantages to one party can outweigh the advantage of the other but simply that slavery is not in accordance with principles that can be mutually acknowledged and it is for this reason that slavery will always be unjust. The classical utilitarian might retort that it is not always true that the disadvantage to the slaves outweighs the advantages to the slaveholder and in the cases where this is not true, slavery is not wrong. Indeed, it is right, and for the same reason that justice is right. He might point out that utilitarianism gives no special weight to justice above and beyond the basic concern with effectiveness. And if slavery is effective, it is perfectly just.
But reasons of justice have a special weight which utilitarianism cannot account for but justice as fairness can. The argument that slavery is sufficiently advantageous might not be wildly irrelevant but it nevertheless constitutes a moral fallacy. Since slavery does not ensue from principles that could be mutually acknowledged, the advantages or disadvantages (benefits or burdens) that result from it have no moral significance. If the slaveholder recognises the injustice of slavery, he will disregard the advantages that might flow from it. Such advantages then cannot be grounds for defending a practice as just. For these reasons, the principles of justice have a special weight. With respect to the principle of the greatest satisfaction, they have an absolute weight. They are not contingent.
This criticism of utilitarianism does not depend upon whether or not the assumptions of similar utility functions for individuals and diminishing marginal utility (see section V, second paragraph) are understood to be scientific or psychological. It is certainly more attractive to consider the latter to be true. However, even if the assumptions are understood as moral or psychological, the mistaken belief in the intrinsic value of satisfaction of (moral and psychological) desires irrespective of the relations between persons still remains.
“By way of conclusion I should like to make two remarks: first, the original modification of the utilitarian principle (supra note 6) actually has a different conception of justice standing behind it. I have tried to show how this is so by developing the concept of justice … [which] involves the mutual acceptance, from a general position, of the principles on which a practice is founded, and how this in turn requires the exclusion from consideration of claims violating the principles of justice.
Second, … I have been dealing with the concept of justice. …Societies will differ from one another … in the range of cases to which they apply [the concept of justice as fairness] and in the emphasis which they give to it as compared with other moral concepts. A firm grasp of the concept of justice itself is necessary if these variations, and the reasons for them, are to be understood.”
 Why is justice considered only in its application to social institutions? Because its application to social institutions is “basic” and may be “easily” applied to other “subjects of justice” such as persons or particular actions once its principles are established.
 The word “practice” is used as a technical term meaning any form of activity specified by a system of rules which defines offices, roles, moves. penalties, defenses, and so on, and which gives the activity its structure
 “The principles of justice … formulat[e] restrictions as to how practices may define positions and offices, and assign thereto powers and liabilities, rights and duties”.
 The term “person” could mean human individuals, nations, provinces, business firms, churches, teams, and so on. In any case, the principles apply to all. The use of the term is self-confessedly ambiguous.
 These inequalities are not the differences in offices and positions and the differences in benefits and burden that ensue from them.
 This modification of the utilitarian principle that everyone must benefit from the inequality disallows utilitarian justifications that appeal to the greater magnitude of the benefits accruing to some compared to the burdens borne by others.
 The last point implies that the rational man in not greatly worried by seeing others in a better position unless that were the result of injustice. The rational man, in a word, is free from envy.
 “A man whose moral judgments always coincided with his interests could be suspected of having no morality at all.”
 “They say that to do injustice is naturally good and to suffer injustice bad, but that the badness of suffering it so far exceeds the goodness of doing it that those who have done and suffered injustice and tasted both, but who lack the power to do it and avoid suffering it, decide that it is profitable to come to an agreement with each other neither to do injustice nor to suffer it. As a result, they begin to make laws and covenants, and what the law commands they call lawful and just. This, they say, is the origin and essence of justice. It is intermediate between the best and the worst. The best is to do injustice without paying the penalty; the worst is to suffer it without being able to take revenge. Justice is a mean between these two extremes. People value it not as a good but because they are too weak to do injustice with impunity. Someone who has the power to do this, however, and is a true man wouldn’t make an agreement with anyone not to do injustice in order not to suffer it. For him, that would be madness. This is the nature of justice, according to the argument, Socrates, and these are its natural origins.” John M. Cooper ed., 1997, Plato: Complete Works, Indianapolis: Hackett, 358e–359b. (See this if you don’t know what the numbers mean.)
 “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.
 “…[T]o 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 … but taking advantage of loop-holes or ambiguities in rules, … and more generally, acting contrary to the intention of a practice.”
 Rawls of course is referring to the objection that the general welfare could be bought at great particular cost. The greatest happiness of the many, to use other words, could come at the expense of the greatest suffering of the few.
 Satisfaction derived from additional units of a good diminishes. The implication is that fantastic differences in levels of satisfaction are unlikely to occur.