A candle loses nothing by lighting another candle
There are a number of problems with Rawls’ conception of political justice. The greatest of these is the issue of what entities are considered in the original position. In Justice as Fairness these entities are restricted to those parties which possess “the two moral powers.” This is the major problematic aspect of Rawls’ conception of political justice because it assumes that the only entities which involve themselves in society, or are forced to be involved in society, are humans with “the two moral powers.” This is patently untrue. Society forces its rules upon not only those with “the two moral powers” but also on those without them. This includes not just humans who lack one or both of these powers, for whatever reason, be it developmental disability or the result of an accident, but also animals which are ruled by human law.
The problem with Rawls’ original position is not just that it is restricted to specific people, but it is this combined with the fact that those negotiating in the original position are self interested that causes problems. If we assume self interestedness and assume that the entities which can enter into the original position are limited, in Rawls’ case by the capacity for moral development, then we come up against a situation where any entity not included in the original position is considered to have only derivative value in the resulting conception of political justice. We see this in Rawls in that he gives no justification for the protection of those entities outside those included in the original position. Because of this we have a result that I would find terribly unjust, that any entity not included in the original position has no protection except those that entities which are included in the original position choose to give them.
This becomes a problem further because the goods of those entities which are included in the original position differ by group or individual, and because the comprehensive systems which those groups or individuals adhere to give differing amount of value to entities not included in the original position, down to no value at all. If there exists a comprehensive system which gives no value to those entities which are not included in the original position then individuals which adhere to said comprehensive system can make a compelling argument that the system of political justice allows them to treat entities not included in the original position in whatever way they may wish, up to and including torture and killing, because to stop the individual from acting as such would violate their rights, assuming that the entity acted upon has no derivative value for other entities included in the original position.
For example, if I am included in the original position then I am given rights and allowed to pursue my goods. If I have a comprehensive system wherein torturing animals is a good, say as a religious rite, then the government which results from the two principles must allow me to torture animals to at least some extent. This is because of the second principle in which the difference principle says that if there is a possible state of distribution of goods where the goods of the most advantaged are increased then the goods of the least advantaged must be maximized. Practically speaking this means that the political institutions must be put together in such a way that even if the majority of people think that no one should be able to torture cats, their goods, or their comprehensive system in this case, must be forwarded in such a way so as to allow me some of my goods, cat torturing that is.
What this means even more so is that it is not only limited to cats, but I can also include in my goods the damaging of any entity of which I am allowed ownership. So any animal or plant or even people who do not have the capacity for moral development, because they were not included in the original position. So a sociopath or someone who is developed or incapacitated such that they have little to no rational ability are also not protected by the original position. This lack of protection means that such a person is fair game for whatever treatment society wishes to heap upon them, perhaps as a medical guinea pig or as slave. This differs little from many older political systems but in the extent of entities to which protection is extended. For hundreds of years blacks in America were held as slaves with the justification being that they were not mentally fit to live as free people. Similarly, women have historically held, and in many places now hold, a position subordinate to men on similar rationale. Rawls’ conception of political justice does away with this subordination in theory, though not necessarily in practice, a topic outside the scope of this paper.
To give an existing wrong for which there is no provision in Rawls’ conception of political justice we need only look to the practice of factory farming. As I write this there are an enormous number of animals being treated in a way which if a human was subjected to it would be considered inhumane in the extreme. But Rawls’ conception of political justice gives no protection for these poor creatures. One could argue that they are not a part of political society and thus do not deserve inclusion in a conception of political justice, but this returns us to the situation of the sociopath or developmentally disabled. They are necessarily a part of society because they have been forced into society. They have been born and bred, quite literally, within the milieu of the state and contribute to society in a real way. Do they not as such deserve real protection and not just derivative value?
There are a number of possible ways to allow for the intrinsic value of those entities excluded from Rawls’ original position. One of these ways would be to include them as full parties considered in the original position. This has the drawback of being too inclusive. We cannot expect a mouse to have the same rights and privileges as a person who has full capabilities for rational thought and it is absurd to say that a mouse should be able to hold political office. However, if we accept that all entities should be considered to be covered by the two principles of justice then we would have to allow for mice or rabbits or dogs to hold office, or at least structure society such that their opportunity to hold offices is supported. This option seems out.
A second option is to include them in the original position but only in regards to the second half of the second principle. The reasoning for this is that we know that these entities participate in society and we know that they have goods which they would pursue, and so we know that if they had a choice of distribution and they behaved rationally then they would choose the difference principle, for the same reasons that Rawls gives for those entities he includes in the original position. This would result in a protection of those entities not included in the original position by Rawls and would not lead to conundrums such as whether a mouse or rabbit should hold office. I’ll admit some influence from Nozick on this point, as he recommends that the principle of utility might be used in regards to animals in a political state; but, the argument against the utility principle in Justice as Fairness give reason for people to choose the difference principle, so why not for those other entities not included?
It might be argued that this arrangement still puts the entities not included in Rawls original position at a distinct disadvantage, and I do not disagree. The point here is not to perfect the theory of justice as fairness, but to make it more fair. We can look back to the case of factory farming for an example of how this would be more fair. The cows, or whatever animals are farmed, will be included in the calculations of the difference principle. In this case we would find that we could not, most likely, allow the mistreatment of the animal as an acceptable trade off for the good of someone eating meat. This would hold in other cases as well, such as for the sociopath or the developmentally disabled. In addition, nature would be necessarily preserved as habitat for animals, or, if we wanted to include nature in general in our calculation, nature would be protected in and of itself. The last of the suggestions would clearly bring up issues far to complex to cover in a short paper, but it should be left open for consideration.
An additional argument might be that including entities which lack the two moral powers will denigrate the position of those whom Rawls includes in the original position. On the surface this seems to be a fair objection, but in fact it is just another way of saying that said entities lack moral standing. It is good to remember here that both the first principle of justice and the first part of the second principle are prior to the difference principle. Or put another way, If I light a candle while under a spotlight it does not decrease the light but increase it. The point is to expand the conception of justice.
I hope I have shown that Rawls’ conception of political justice is lacking and that it can be expanded so as to include more entities within it. I for one cannot countenance a theory of justice which allows for torture and murder simply because of reasons of rationality or moral ability. The inclusion of those entities not possessing those traits can be included in such a way as shown above without denigrating those previously included in the original position.