Rawls and subject 8
- 3. Original position
1.) Four-stage sequence
If Rawls deems that justice as fairness with its two principles meets the test of reflective equilibrium better than other conceptions of justice, the question remains in what way justice as fairness outperforms them on that count. The answer thereto lies in the careful development of the original position qua representational device. For this, we shall leave aside the two principles of justice and critical discussion thereof in order to focus on the precise mechanisms by which the original position arrives at a more adequate equilibrium. The answer lies in the four-stage sequence.
Our reason for focusing on the four-stage sequence owes to the importance which Rawls accords this sequence when he answers Habermas’ charge that the original position’s formulation constrains participants to reason by means of principles and norms predetermined by theory and to accept one conception from the consequently narrowed range of possibilities. More simply, for Habermas, the original position imposes conditions on participants’ will-formation which delegitimize the end-state of the decisionmaking procedure.
Rawls’ response comes in two parts. In the first, he examines Habermas’ charge in greater detail and pinpoints that at which this charge takes aim. For this, he attempts to make sense of the “two-stage character” of justice as fairness which his interlocutor attributes him:
[Habermas] then refers to the two-stage (Zweistüfig) character […] of the political conception of justice as fairness, by which I take him to mean that this conception starts with the hypothetical situation of the original position where principles of justice are selected once and for all by the parties as equals subject to the veil of ignorance, and next moves to citizens’ regular application of those same principles under the actual conditions of political life. The two-stage character of the political conception leads, he believes, to the liberal rights of the moderns having a priori features that demote the democratic process to an inferior status (127-28).
Accordingly, the political conception of justice as fairness would comprise a first hypothetical step in which parties to deliberation arrive at principles of justice and a second actual step in which those same principles are applied. As Habermas sees it, the problem would arise from the first step’s a priori constraints on the selection of principles rather than from the application thereof. In other words, delegitimization results with selection not application.
Having isolated the moment at which the objection intervenes, i.e. the first step, Rawls moves to the second part of his response wherein he contends that justice as fairness manages to avoid just such concerns. For Habermas seems to misunderstand a key aspect of the original position and the four-stage sequence in which it is inscribed. Rawls underlines this misunderstanding by showing that a decisionmaking procedure for judgments of justice is available to persons for which the result is not theoretically predetermined:
First, the four-stage 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.
So long as the four-stage sequence is more than theoretical, it is not handed down on high from philosophers. The person is free to come back on its conclusions and on the characterization of a given stage. And, insofar as this sequence is not actual, it can stand over and against the merely factual, i.e. existing institutions. The political conception at which the person arrives through the sequence is not dictated by the political system under which the person lives. Independent of both a priori philosophical presuppositions and contingent constraints, the four-stage sequence represents, for the person, an avenue of free deliberation.
[W]hen 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.
In any case, Rawls clearly reserves a central role for the four-stage sequence in the decisionmaking and justificatory procedure, a point to which too few studies have drawn attention. Thus, this represents a lacuna which this study shall try to remedy in what follows.
 PL, p. 396.
 PL, p. 397. Still, one may have concerns over how the two-stage character of justice as fairness relates to its four-stage sequence, a point on which Rawls is none too clear. This might owe in part to the term’s originating in Habermas’ critical treatment rather than in Rawls’ own work. Regardless, two contrary interpretations remain plausible at first blush. Either the original position is the sole content of the first stage of the two-stage character and the subsequent three stages of the four-stage sequence are relegated to the second stage of the two-stage character qua application of those principles or the first stage of the two-stage character includes both the original position and the subsequent three stages of the four-stage sequence and Rawls supplies no further content for the second stage of the two-stage character. Direct textual considerations do little to settle the matter: if Rawls specifies that the four-stage sequence is not “actual”, he also speaks of it as an “application”, both terms appearing in the definition of the second stage: “[…] and next moves to citizens’ regular application of those same principles under the actual conditions of political life” (PL, p. 396). The fact remains that the four-stage sequence enables the person deliberating to proceed from hypothetical assent to justice as fairness and its two principles to a complete and determinate political conception which the person will then submit to procedures for justification under the aegis of public reason. Such that, in the end, for the principles to be applied, they must be couched within a complete and determinate political conception, suggesting that the four-stage sequence stands independent of any given application of principles qua condition of application.
 PL, p. 398.