D. John Rawls: Procedural Justice and Legitimacy
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This entry discusses the role(s) played by ideals of procedural justice and legitimacy in Rawls’s justice as fairness. It first sets out several different ideals of procedural justice. It then discusses the roles played in justice as fairness by the ideals of pure and quasi-pure procedural justice. It concludes with a discussion of legitimacy as a moral property of coercive state action and the nature and limits of the duty citizens have to obey or at least acquiesce to legitimate laws and coercive state actions.
I. Procedural Justice: Perfect, Imperfect, Pure and Quasi-Pure
Justice is standardly thought of as a moral property of outcomes or states of affairs, rather than procedures. Yet we often speak of procedural justice. Rawls distinguishes four senses in which we do so. First, consider a case where we independently know what justice requires of an outcome or state of affairs. We know who ought to get what as a matter of justice. Now suppose we had a procedure that we could use reliably to yield the sought after just outcome or state of affairs in every instance. Such a procedure Rawls characterizes as an instance of perfect procedural justice. Imagine for example that we have a cake and that we agree that a just distribution of it to those hungry persons present would give everyone an equally sized piece. To effect this result, we may ask any person to cut the cake into the requisite number of pieces subject to the condition that she will be the last person to select her piece.
Now consider another sort of case in which we know who ought to get what as a matter of justice. In this case, we independently know what justice demands, but our best procedure for reliably generating the sought after outcome or state of affairs is imperfect. It hits the mark most of the time, but not all the time. Such a procedure Rawls characterizes as an instance of imperfect procedural justice. Fair trials constitute a good example. We know that as a matter of justice only (and perhaps all) the guilty should be punished. But our best procedure for distributing punishment – a fair trial – will sometimes miss the mark. We will sometimes punish innocent persons. (And sometimes the guilty will go unpunished.) But no there is available to us no procedure better able consistently to generate just results.
Of course, we often do not know what justice requires of an outcome or state of affairs apart from considerations bearing on the procedure the produced it. For example, in a poker game, we may have no idea what a just distribution of the total money brought to the table would be independent of the procedure through which the money will in fact be distributed – the actual playing of the poker game itself. We may say that so long as the poker game is fairly played, the distribution – the outcome or state of affairs – it produces is just. This is an example of what Rawls means by pure procedural justice. Pure procedural justice refers to the use of a fair procedure to arrive at a determinate and substantive judgment of justice in cases where we have no other clear, determinate noncontroversial independent standard of what justice demands. The central idea in these cases is that the fairness of the procedure is sufficient to establish the justice of the results.
Sometimes the fairness of a procedure is insufficient to establish the justice of the results, but sufficient to establish a less demanding normative standard. For example, we might say of fair democratic procedures that they cannot by themselves establish the justice of the laws enacted, but they can and do establish their legitimacy. Procedures of this sort Rawls characterizes as instances of quasi-pure procedural justice.
II. Pure (and Quasi-Pure) Procedural Justice within Justice as Fairness
It is often said that justice is a matter of giving each her due. Suppose we ask “Which team is due recognition as the best soccer team?” We may answer, “The team that has the most talent, plays the best, and otherwise most fully exemplifies all the virtues of soccer.” But how do we know which team that is? Faced with no clear, determinate, noncontroversial method for picking out the best team, we may agree to identify the best team through a fair procedure, a game. We may say, “The team that wins the final game of the World Cup is entitled to recognition as the best team, provided each game is played fairly.” That is, we agree to accept as the answer to our initial question the team selected by an actual, historical play or working out of a selection procedure we accept as fair. We recognize that luck will inevitably play a role in this procedure. Yet, as with a fair gamble, the fairness of the result is not undermined by the influence of luck in the procedure, since all are equally vulnerable to both good and bad luck. Though it may win in part through good luck, thus leading some to judge it less “deserving” than some other team, the team that wins the World Cup is entitled to recognition as the best team. And that, officially and publicly, settles the matter.
Suppose now we ask “Which citizen is due this or that job or income?” We have no clear, determinate, noncontroversial method for picking out which citizen is, as a matter of justice, or of giving each her due, due this or that job or income. And so we agree to accept as the answer to this question the citizen selected by a fair procedure, or game. In this case, the procedure or game is that of a fair basic social structure. To the question of justice “Which citizen is due this or that job or income?” we answer “The citizen selected by an actual, historical play or working out of a fair basic social structure..” The idea of pure procedural justice lies at the heart, then, of what Rawls means by “justice as fairness.”
The idea of pure procedural justice figures in justice as fairness in three ways. First, and paradigmatically, it captures Rawls’s thought that a just allocation of particular entitlements to determinate individuals simply is the allocation determined by the actual, historical voluntary conduct of individuals within and subject to the rules of a fair basic social structure, one faithful to the two principles of justice. So, for example, in an open and competitive market within which all citizens formally and legally enjoy an adequate system of equal basic liberties as well as fair value for their political liberties, within which fair equality of opportunity is secured through both nondiscrimination laws as well as meaningful public education and health programs, and within which property rights, tax laws and other basic rules are designed to bring market results in line with the difference principle over the long run, the market (from which luck cannot be eliminated) determines the allocation of jobs and incomes to particular individuals, and this allocation is presumptively fair and just.
Now, one reason we treat a fair play of a soccer game as an instance of pure procedural justice is because the players voluntarily choose to, and need not, play. By playing, they show that they, each and all, accept the rules. And insofar as they each and all accept the rules, we can regard the rules as fair. But citizens do not voluntarily choose to play (and cannot choose not to play) the game that is the basic social structure of their society. They find themselves simply born into and subject to their society’s basic social structure. So why should we think of any society’s basic social structure as a fair procedure for selecting a just allocation of particular entitlements to determinate individuals? This brings us to the second role played by pure procedural justice in Rawls’s thought, and a second aspect of what he means by “justice as fairness.”
With respect to games played voluntarily, we do not ask whether the rules are fair. Because players need not play, the only question is whether they voluntarily assent to the rules. Of course, citizens typically do not and can not voluntarily assent to the rules governing their basic social structure before being subject to them. But suppose they could publicly vindicate those rules as just. Then they would have good reason to regard their basic social structure as a fair procedure for allocating particular entitlements to determinate individuals. But how are citizens publicly to vindicate the rules of their basic social structure as just? Rawls holds that a basic social structure is just if and only if no citizen could reasonably reject its basic or constitutive rules from a shared moral point of view specified, hypothetically, as if prior to any particular play of the “game.” From this imagined point of view, citizens do not know what position they will play, what moves they will make, or how they will fare once the game is played. They know nothing about the particular interests they will acquire as the game is played. They know only about the most basic interests they bring to the game simply as citizens, as one among many free and equal players. This is the point of view given by Rawls’s original position thought experiment, with its veil of ignorance.
The original position argument, with its veil of ignorance, constitutes, then, a second instance of pure procedural justice. Lacking a clear, determinate, noncontroversial method for identifying a just basic social structure, a basic social structure that might function as a fair procedure for allocating entitlements to determinate individuals, we agree to accept as just the basic social structure picked out by a “fair reasoning game”( the original position thought experiment) that we can each and all voluntarily play. If we could design such a thought experiment, then we could, officially and publicly, settle the question of whether we ought to bring about this or that basic social structure as a matter of justice. So, just as a fair basic social structure functions as a fair procedure for allocating particular entitlements to determinate individuals, yielding a just allocation of entitlements, so too a fair reasoning game, a properly designed original position argument, functions as a fair procedure for selecting between competing candidate conceptions of justice for a body politic. Justice as fairness.
Rawls also draws on the idea of pure procedural justice in a third way, giving rise to a third aspect of what he means by “justice as fairness.” He characterizes the democratic legislative procedures of a just basic social structure as instances of “quasi-pure procedural justice.” Apart from fair democratic legislative procedures, we have no clear, determinate, noncontroversial method for identifying authoritative or legitimate laws. These procedures are fair insofar as they are consistent with and give effect to the two principles of justice, and in particular the first principle and its corollary guaranteeing all citizens fair value for their political liberties. Of course, even fair democratic legislative procedures can sometimes yield substantively unjust laws. This is something citizens can publicly judge or settle by reference to the two principles themselves. So, Rawls does not treat fair democratic legislative procedures as instances of pure procedural justice. Citizens may sometimes have good reasons to reject as unjust the actual outcome of such procedures. But the legitimacy or authority of a law is something distinct from its justice. And citizens have no other basis for determining the legitimacy or authoritativeness of any given law apart from checking to see that it was in fact the actual outcome of a fair democratic legislative procedure. Rawls describes such procedures, then, as instances of “quasi-pure procedural justice.” Here it is not justice that is given by fairness, but authority or legitimacy.
Justice and legitimacy are distinct, though related, moral properties. Coercive state action is just when it satisfies, either in itself or by virtue of its results, the demands of justice as given by sound principles of justice. It is legitimate when its exercise is rightful or with right. Coercive state action may be just but illegitimate. A state may act (through its officials) to bring about just results that is has no right, perhaps no constitutional authority, to bring about. Conversely, coercive state action may be legitimate but unjust. Of course, purposeful coercive state action aimed at very serious injustice is always illegitimate. But a state may act (through its officials) to bring about unjust results that is has a right, indeed the constitutional authority, to bring about. It may do so, for example, if officials misunderstand the demands of justice. Perhaps many of the laws constituting the US Tax Code are legitimate but unjust in this sense.
In A Theory of Justice Rawls did not much discuss legitimacy, though his discussions of civil disobedience clearly evidence an unarticulated appreciation of this important moral property. Rawls discusses legitimacy at greater length in Political Liberalism. His discussion there is driven by his attention to the fact that in a free society citizens will very often disagree when it comes to determining the justice of laws and the coercive state actions through which they are enforced. If a free society is to be stable without excessive policing or unacceptable indoctrination, then, citizens must be generally moved to voluntarily comply with most laws by a shared understanding of the legitimacy (rather than justice) of those laws and the coercive state actions through which they are enforced. Rawls’s liberal principle of legitimacy is discussed below in the sub-entry devoted to political liberalism.
IV. Obeying the Law and Civil Disobedience
Rawls distinguishes between the legitimacy of a state and the coercive authority it claims over its subjects, on the one hand, and the duty or obligation of those subject to obey its laws or acquiesce to its exercises of coercive force, on the other. Rawls rejects most familiar arguments – from consent, from fair play – for the obligation or duty of the ordinary citizen or subject to obey the law. Citizens rarely explicitly consent to the state or all the laws to which they are subject. And there are probably no states or laws to which all subject citizens explicitly consent. Arguments from tacit consent cannot fill the gap. Given the limited range of options most citizens face, the failure to leave a state cannot qualify as a marker of tacit consent to it or its laws. Because most citizens receive nonvoluntarily the benefits conferred on them by the states and laws to which they are subject, arguments from a duty of fair play do no better at grounding an obligation to obey legitimate laws or acquiesce to legitimate coercive state action.
Rawls claims instead that the ordinary citizen or subject has a natural duty of justice that requires her to comply with the legitimate laws and to support the legitimate state to which she is subject provided neither is too unjust. This duty is natural in that it applies to citizens or subjects regardless of any voluntary undertaking on their part. Rawls distinguishes natural duties from obligations. The latter apply to citizens or subjects only because of their voluntary undertakings within a determinate social order. Officials and others who voluntarily take on special roles in a polity often have obligations to obey the law and to do other things that do not depend on their natural duty of justice.
Neither the natural duty of justice nor a political obligation to obey the law acquired by way of a voluntary undertaking demand obedience to any and all legitimate laws. Civil disobedience and conscientious refusal are sometimes morally permissible, perhaps even morally required.
Though legitimate if properly enacted through reasonably fair democratic procedures (and not too unjust), all unjust laws call for revision. The revision of unjust laws always figures in the ongoing work of citizens and officials within a democracy. In general, however, the injustice of a law or coercive state action does not free one from the natural duty or political obligation to obey.
But some laws are both unjust and resistant to revision within ordinary democratic legislative processes. Where the injustice and the resistance to democratic revision are both substantial, citizens and officials may properly turn to nonstandard remedial responses. The most important of these responses are civil disobedience and conscientious refusal. The civil disobedient responds to a substantially unjust but still legitimate law by publicly disobeying and willingly accepting the legally proscribed sanction. When properly called for by substantial injustice, civilly disobedient conduct is itself a fulfillment of the natural duty of justice. By civilly disobeying the law and accepting her punishment, the civil disobedient publicly and powerfully communicates to her fellow citizens her judgment that the law is sufficiently unjust to demand immediate correction and that the democratic process has thus far failed. The ability to judge when civil disobedience is permissible or necessary, and the disposition wisely to engage in it when it is either, are virtues of good citizenship. Of course, some laws may be so fundamentally unjust that they cannot be seen as legitimate no matter what, regardless of their relationship to fair democratic legislative procedures. Laws of this sort may invite, even require, uncivil disobedience. And this too, when properly called for, may be seen as a fulfillment rather than abrogation of the natural duty of justice.
The conscientious objector typically refuses to comply with an ostensibly legitimate specific order or command. But in doing so she need not intend to communicate anything to her fellow citizens or to call for their immediate political action to redress a systemic injustice. Indeed, she may refuse to comply with a legitimate order from a state official simply because compliance would involve abrogating a fundamental tenet of her own personal morality (as is the case for many religious pacifists with respect to military conscription orders). The ability to judge when conscientious refusal is permissible or necessary, and the disposition to engage in it when it is, are more than virtues of good citizenship. They are virtues of personhood more generally.
Following section: E. John Rawls: Justification and Objectivity