Rawls and subject 13
Still, the conditional mood in the passage may give some readers pause: the person occupying the standpoint of party to the original position could see existing arrangements as meeting stipulations which she would acknowledge in a fair decisionmaking procedure. Moreover, there remains the disconnect between a voluntary society satisfying the principles of justice as fairness and that in which the person lives and which justice as fairness only approximates. In a word, why would the person go through the effort of choosing principles which do not effectively regulate that society in which she lives, as Larmore inquires?
The answer proves simpler than one might imagine and harkens back to our opening comments: the original position is neither actual nor theoretical (in the narrow sense) but is instead an artificial standpoint which the person assumes in order to model a conception of justice in accord with her considered moral judgments. Rawls underscores just this point in a passage wherein he contrasts the standpoint of “parties in the original position” with “that of ourselves – of you and me who are elaborating justice as fairness and examining it as a political conception of justice”. He continues:
[T]he parties as rational representatives who specify the fair terms of social cooperation by agreeing to principles of justice are simply parts of the original position. This position is set up by you and me in working out justice as fairness, and so the nature of the parties is up to us: they are merely the artificial creatures inhabiting our device of representation. Justice as fairness is badly misunderstood if the deliberations of the parties, and the motives we attribute to them, are mistaken for an account of the moral psychology, either of actual persons or of citizens in a well-ordered society.
If the standpoint of the party seems alien to the person taking up that standpoint, this is for no other reason than that standpoint’s being alien in significant ways. The standpoint of the party does not model everyday deliberation: it restricts information and reasoning so that the person, or the standpoint of “you and me” can isolate the conception of justice in which considered judgments of justice are best instantiated. That the original position and the standpoint of the party are so constructed serves precisely that end. Though Rawls does not include such an argument, we might advance on his behalf that adopting such a standpoint greatly simplifies a person’s access to a point of view like that of the morally competent judge of the “Outline”.
This artifice serves, however, a further purpose: that of causing the original position to issue in a determinate conception of justice which we might then put to the test of reflective equilibrium.
The idea is to use the original position to model both freedom and equality and restrictions on reasons in such a way that it becomes perfectly evident which agreement would be made by the parties as citizens’ representatives. Even should there be, as surely there will be, reasons for and against each conception of justice available, there may still be an overall balance of reasons plainly favoring one conception over the rest. As a device of representation the idea of the original position serves as a means of public reflection and self-clarification […] The original position serves as a mediating idea by which all our considered convictions, whatever their level of generality—whether they concern fair conditions for situating the parties or reasonable constraints on reasons, or first principles and precepts, or judgments about particular institutions and actions—can be brought to bear on one another. This enables us to establish greater coherence among all our judgments; and with this deeper self-understanding we can attain wider agreement among one another .
This passage illustrates to what extent the test of reflective equilibrium and the original position mutually interact. First, the conditions and constraints imposed in the original position follow from considered judgments. The conception and principles of justice which result from the original position are then subjected to the test of reflective equilibrium to determine whether the initial conditions and constraints accurately model the considered judgments. Lastly, should the resultant conception and principles of justice prove a poor fit for considered judgments, the conditions and constraints imposed in the original position are modified to ensure a better outcome. In a word, if the original position seems predetermined to select justice as fairness, this is by design on the author’s part and stands as an essential part of his method.
Supposing that the person occupying the standpoint of party for representative persons arrives at a conception of justice with its associated principles, this does not mean that her work is done. After all, a conception of justice defines only “a general point of view” in reference to which “the problems of adjudicating among the basic liberties are settled”. For those problems to be settled, a more determinate understanding of the conception of justice will be required, namely, in the form of institutions. For, as Rawls makes clear as early as §3, choosing the conception of justice, in this case, justice as fairness with its two principles, is only the first step in building a determinate political conception of justice for which the subsequent choice of a constitution and legislature is necessary. While the two principles provide the standard by which to measure the determinate political conception, they must first pass through the remaining stages of the four-stage sequence to arrive there.
 PL, p. 28.
 PL, p. 26. In a similar vein, see TJ, p. 18, where Rawls provides a definition of reflective equilibrium.
 TJ, p. 82.
 TJ, p. 12.