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Rawls and subject 14

March 23, 2017
  • Constitutional convention and delegate

Certainly, it is easy enough to understand Rawls’ requirement: political justification and public discourse bear less on the principles of justice and more on the institutionalization of those principles. After all, the person exiting the standpoint of the party with the principles justice may lack the institutional orientation necessary to bring those principles to bear on the social system in which she lives. The author calls attention to this potential shortcoming:

So far I have supposed that once the principles of justice are chosen the parties return to their place in society and henceforth judge their claims on the social system by these principles. But if several intermediate stages are imagined to take place in a definite sequence, this sequence may give us a schema for sorting out the complications that must be faced. Each stage is to represent an appropriate point of view from which certain kinds of questions are considered. Thus I suppose that after the parties have adopted the principles of justice in the original position, they move to a constitutional convention[1].

There seem three considerations to unpack in this passage: 1.) why does the author speak of a constitutional convention? 2.) what complications does a constitutional convention face?; 3.) what is the standpoint appropriate to a constitutional convention? Certainly, with regards to 1.), the author finds a “workable political conception” in the familiar form of constitutional democracy and finds a parallel in the United States Constitution, its history and drafting[2]. Less parochially, he holds that the person exiting the party standpoint will encounter difficulties concerning the application of the principles of justice to the basic structure of institutions and liberties in her society. Ordinarily, such a structure takes shape in the form of a constitution.

In any case, those difficulties lead us to 2.). Of the three problems facing the person returning to society and highlighted by Rawls, the second corresponds most closely to the difficulties which the constitutional convention must alleviate:

[A] citizen must decide which constitutional arrangements are just for reconciling conflicting opinions of justice. We may think of the political process as a machine which makes social decisions when the views of representatives and their constituents are fed into it. A citizen will regard some ways of designing this machine as more just than others. So a complete conception of justice is not only able to assess laws and policies but it can also rank procedures for selecting which political opinion is to be enacted into law[3].

The machine’s design, i.e. the make-up of the basic structure, is subject to much the same process of deliberation and justification as in the decisionmaking procedure of the original position. Wherefore Rawls’ remark that the constitutional convention and the following stages are “an elaboration of the original position”[4].

As with the original position, there remains the matter of defining the standpoint most appropriate to the decisionmaking procedure embodied in the constitutional convention, the question raised by 3.). If he characterized the standpoint relevant to the original position as that of the party, i.e. a depersonalized person in symmetrical relations with others autonomously proposing reasonable principles in publicly available modes, the delegate, the standpoint appropriate to the constitutional convention, inflects the former’s main traits:

Subject to the constraints of the principles of justice already chosen, [delegates] are to design a system for the constitutional powers of government and the basic rights of citizens. It is at this stage that they weigh the justice of procedures for coping with diverse political views. Since the appropriate conception of justice has been agreed upon, the veil of ignorance is partially lifted[5].

Two remarks are in order here. On one hand, the delegates are charged with designing a second-order system capable of reconciling conflicting, first-order political views. On the other, insofar as all have assented, through the party standpoint, to a single conception of justice, i.e. justice as fairness, certain constraints on knowledge, information and reasons are removed. In other words, information which was previously considered morally irrelevant to the party standpoint at the level choosing principles necessarily gains moral relevance for the delegate standpoint in framing institutions and liberties. For the society in question must be capable of instantiating those institutions and liberties, for which these must not be incommensurate with social or political realities determining that society. The author briefly enumerates the kinds of information available to the delegate standpoint:

The persons in the convention have, of course, no information about particular individuals: they do not know their own social position, their place in the distribution of natural attributes, or their conception of the good. But in addition to an understanding of the principles of social theory, they now know the relevant general facts about their society, that is, its natural circumstances and resources, its level of economic advance and political culture, and so on. They are no longer limited to the information implicit in the circumstances of justice. Given their theoretical knowledge and the appropriate general facts about their society, they are to choose the most effective just constitution, the constitution that satisfies the principles of justice and is best calculated to lead to just and effective legislation[6].

[1] TJ, p. 172.

[2] TJ, p. 171, cf. p. 172.  He allows, however, that other institutional forms could also qualify as workable.

[3] TJ, pp. 171-172. While some may object to the characterization of political process as machine, the analogy suggests not an automatized entity set in motion once and for all but more a procedure in which the inputs and outputs are treated independently of the particular persons concerned therewith.

[4] TJ, p. 172.

[5] Idem.

[6] TJ, pp. 172-173.

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