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Fr. 742

November 28, 2016

Rawls tasks the ninth and final lecture in Political Liberalism, “Reply to Habermas”, with making explicit a number of points in justice as fairness to which the German philosopher had drawn attention as either unclear or incomplete. Section 3 therein deals, in large part, with the charge that Rawls’ original position deprives democratic citizens’ of opportunities both to shape the political conception’s content through will-formation and to exercise their political autonomy by determining important features of political conception prior to citizen involvement by way of the original position (396-7).

Rawls’ reply thereto comes in two parts, of which some elements prove more familiar and others less. He begins by recalling that his readers should avoid reifying the original position.

First, the fourstage sequence describes neither an actual political process, nor a purely theoretical one. Rather, it is part of justice as fairness and constitutes part of a framework of thought that citizens in civil society who accept justice as fairness are to use in applying its concepts and principles. It sketches what kinds of norms and information are to guide our political judgments of justice, depending on their subject and context (397).

Notably, this applies to the original position qua both decision procedure and first of four stages in the sequence embodying that procedure, namely, original position, constitutional convention, legislature, judiciary. Moreover, to each of these corresponds a distinct epistemic standpoint which regulates how much information and what kind of reasons become available within that stage to the person occupying the standpoint in question. Rawls lays this out as follows:

We begin in the original position where the parties select principles of justice; next, we move to a constitutional convention where—seeing ourselves as delegates—we are to draw up the principles and rules of a constitution in the light of the principles of justice already on hand. After this we become, as it were, legislators enacting laws as the constitution allows and as the principles of justice require and permit; and finally, we assume the role of judges interpreting the constitution and laws as members of the judiciary, Different levels and kinds of information are available at each stage and in each case designed to enable us to apply the (two) principles intelligently, making rational but not partial decisions favoring our own interests or the interests of those to whom we are attached, such as our friends or religion, our social position or political party (397-8).

In a word, the four-stage sequence aids the person in finding a middle ground between pure history and pure theory. Rawls expects neither that this decision procedure be embodied solely in the founding of new political bodies nor that a requisite group of people be assembled to similar ends. Furthermore, the fact of breaking the sequence down into identifiable stages helps familiarize and simplify the task at hand, moving the decision procedure from the realm of armchair philosophy to ordinary life.

The second part of Rawls’ response to the above charge reprises this last point:

The second point, related to the preceding ore, is that when citizens in political offices or civil society use this framework, the institutions they find themselves under are not the work of a political philosopher who has institutionalized them in theory beyond citizens’ control. Rather, those institutions are the work of past generations who pass them on to us as we grow up under them. We assess them when we come of age and act accordingly. All this seems obvious once the purpose and use of the four- stage sequence is made clear (399).

This makes clearer in what way the original position would then act as an individual’s means of check, in four stages, the “health” of current institutions, which would move this representational device from the realm of the politically prehistoric or merely hypothetical to the everyday.

Yet questions remain over the the original position and the four-stage sequence which, somewhat ironically, the author’s attempts at explication here have only served to muddy further. This stems in large part from his vacillation over the precise characterization over the agent working through the four-stage sequence. Recall that the original position, both as procedure and stage, is typified by the reasonable and the rational, the former of which provides formal constraints on the procedure and the latter of which works through the content therein. The author remarks of the person working through that procedure:

The rational […] applies to a single, unified agent (either an individual or corporate person) with the powers of judgment and deliberation in seeking ends and interests peculiarly its own (PL, 50).

Two clear meanings suggest themselves here. Either the agent of the procedure is a person working her own interests out subject to constraints imposed by the reasonable or the agent is a person working out the interests of a group of persons which she represents within that procedure. (In addition, a third more tenuous reading might take the form of a group of individuals working their shared interests out without recourse to representative party, a possibility which Rawls likely discounts when he remarks that the original position is not an actual event, but to which we shall return nonetheless to see whether it might better withstand concerns to follow.)

Taking each of these cases into account, we shall now try to work through more concretely how the agent goes about this procedure and the four-stage sequence.

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