Constructing the Original Position 1: On Society and Justice

This is the first post in a series on constructing the original position. The introductory post is here. Look here for the rest of the posts in this series.

The original position is first and foremost a contract or choice situation. In order to start justifying the original position or any similar device, we need to start justifying why we use a choice situation. The idea is that since systems of social rules are better to the extent that they benefit everyone more, there is some contract situation which accurately models the reasons in favour of a system of rules. In order to show how this can be the case, I will first show how social rules are prima facie better to the extent that they benefit everyone more.

First, we have the idea of society as a system of coordination. When we examine society we often find situations where people can make claims against each other. People decide to take actions, effect states of affairs and other people’s actions can affect the outcome or even whether or not the action can be performed. In such cases, we make claims against others. We demand that they perform one action rather than another or that they refrain from acting. Similarly, they advance a counter claim against us that we not make such claims against them.

We are now at an impasse; both claims cannot be simultaneously satisfied. Social rules solve this by providing clear instructions to each party in this conflict. The conflict is resolved because the rule tells one person to withdraw his claim and the other to push her claim if she wanted to. If we were to examine our concept of a society, we would see that for any group of people we would wish to call a society, most conflicts between people would have to be resolved. Thus, whatever else society may be, it is at least a system of coordination.

We can see that for even one instance of conflict, there is more than one way to resolve that conflict. A rule might tell one party to withhold its claim and the other party that it can advance its claim as far as it can, or vice versa, or it may allow each party to only advance their claims partially in such a way that no conflict arises in situations where this is possible. Given that there are many possible social rules that could govern a situation; the question that concerns us is: which rule should we have?

This is the essential problem of justice: Which set of rules is morally appropriate to resolve conflicting claims. And appropriately, we call situations where there are conflicting claims to be resolved by some rule the circumstances of justice. The first step in solving the problem of justice is showing that any society we think of as just is one where anyone who is a part of society and abides by its rules “benefits”. The term “benefit” is used here in an extremely broad and perhaps idiosyncratic sense. For the purpose of this chapter, we do not consider the word benefit to refer merely to the personal advantage we normally associate with the term, but to be open to include things like the salvation of the soul, serving God, or fulfilling antecedent moral duties. The term “benefit” is merely a convenient placeholder for whichever positively valenced “thing” that we think is the appropriate accounting standard for the payoffs in the coordination game which we can represent the circumstances of justice as.

In order to see how the idea of society is connected to the notion of benefit, we will examine cases where people are removed from society and cases where people remove themselves from society.

One thing that we observe is that societies exclude erstwhile members from its ranks when they are deemed to be liabilities. Criminals are a case in point. When criminals’ prison term is over, or during parole hearings, we think of the end of the prison term as the person re-entering society. The implication was that he left society for a while when he entered prison. In older days, we used to banish or even outlaw criminals. This does not stop at criminals. If we consider the way some societies sometimes treat their chronically incompetent like the insane, or the aged or their lepers, unless there are family members who prefer their presence in the house, such people are sequestered away in asylums, nursing homes or leper’s colonies. Attempts to keep the elderly integrated into society often centre on what benefits society could reap by having them around: We could benefit from their wisdom and experience. That some person, in his interaction with others will be unable or is unwilling to coordinate on favourable or beneficial rules seems to be a reason that people invoke to exclude others from society and similarly, that some person is beneficial is often used as a reason to not exclude them. The point is not to suppose that such judgments are justified, but to note the structure of such judgments. Whenever we see that it is reasonable or justified that a person was removed from society, we see that the person was a detriment to society where the way in which he was detrimental is a way that we think is central to what we consider the purpose of social organisation.

Complementary to the issue of expulsion of members of society from its ranks is the issue of people deciding to leave of their own accord. The practice of eremitism and the reasons that have fuelled such practices across cultures is revealing. One reason people from across cultures have practiced eremitism is to get closer to God or achieve enlightenment. Where a life engaged with society is seen as an obstacle to that goal, that person finds it reasonable to leave society in order to better pursue it. In ancient China, eremitism was also a form of protest by a court official against his ruler. Officials, unhappy with their ruler, would remove themselves from court and even from society as a whole, slowly starving themselves to death in the wilderness. In the case of Chinese officials, we see that they choose to forgo certain benefits of society as a form of protest in order to shame their ruler. Moreover, the reason they saw such drastic protest as warranted was because the bad behaviour by their ruler made their own participation in their social roles as meaningless in their own eyes. In addition to the practice of eremitism, understanding the push and pull factors of migrants and refugees also underscores this relationship. Migrants and refugees leave societies where they experience fewer benefits as they understand it and move to countries where they hope to get more benefits. More interestingly, Host countries tend to grant asylum only to those refugees whom they regard as having valid reasons for leaving their previous countries. Again, we see the basic idea that there is some benefit that members of a society ought to get and that getting less or none of this benefit provides them with legitimate reasons to leave society.

The dynamic we observe here is that each member of society is at the same time expected to benefit from and contribute some benefit to society. The benefits to coordination are therefore not exactly one sided, but mutual or reciprocal. But social coordination for mutual advantage just is what we call cooperation. The basic idea that we can extract is the idea that social rules are supposed to benefit all the members of society. Let us note a further conceptual relation. We think that society is oppressive to the extent that it alienates or fails to provide some benefit that we think society ought to provide. Our concept of what counts as oppression depends on what we think the benefits of social cooperation should be. Where people defect from social cooperation because they were alienated from some benefit which we didn’t think they were supposed to receive we think that they are being unreasonable. This is because we don’t think that they were oppressed. If on the other hand, we were to be convinced that the aforementioned benefits were in fact properly one of the aims of social cooperation, we would think such people who were alienated from those benefits were oppressed. Moreover, even if a particular benefit was owed to a person, but that it was not the proper aim of social cooperation, while we would think that person unfortunate in a number of ways, we would not think that the person was oppressed. In addition, to the degree that a particular society is oppressive, we do not think it is just. It is impossible to conceive of a society that is both oppressive and just in the same respects at the same time. Therefore, we can infer that insofar that a system of social rules benefits some member of society, there is a prima facie moral reason in favour of that system. This also means that insofar as system A is pareto-superior to system B in terms of benefits, A is more just than B. Nothing we have said so far, however, gives us any way to aggregate or balance claims, see whether one claim over-rides another or undercuts it. Theories of justice differ from each other because they have different notions of what counts as a benefit and they differ on how the various prima facie moral reasons interact with one another.

To be continued…