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Rawls and subject 16

March 27, 2017
  • Legislature and legislator

Rawls envisions the third stage in the four-stage sequence as that of the legislature. As with the constitutional convention above, we may ask three basic questions of this stage: 1.) why does the author speak of a legislature? 2.) what complications does a legislature face?; 3.) what is the standpoint appropriate to a legislature?

In response to 1.), recall that the author spoke of the constitutional convention in the previous section as the means by which delegates design a process or “machine which makes social decisions when the views of representatives and their constituents are fed into it”. Naturally, that machine requires both input and output, as it does not create laws and policies in and of itself. Input and output will take the form of legislation. As to 2.), Rawls addresses, at the beginning of §31, the fundamental problem facing the person engaged in the legislative stage of the decisionmaking procedure. Note that:

[The citizen] must judge the justice of legislation and social policies. But he also knows that his opinions will not always coincide with those of others, since men’s judgments and beliefs are likely to differ especially when their interests are engaged[1].

More simply, the person so engaged is charged with making just laws and policies and providing justification therefor in the face of disagreement. At this point, it becomes a question of the standpoint which the person is to take, leading us to 3.). Rawls answers:

Now at this point we come to the legislative stage, to take the next step in the sequence. The justice of laws and policies is to be assessed from this perspective. Proposed bills are judged from the position of a representative legislator who, as always, does not know the particulars about himself[2].

If this last remark recalls the delegate standpoint, this owes to the fact that both the delegate and the legislator standpoint build on the basic elements of the party standpoint. Both accept the two principles of justice and exclude considerations peculiar to individual persons from deliberation and justification. The question then becomes in what way the legislator standpoint builds on the delegate standpoint.

Insofar as the party standpoint provides the model for the standpoints in the later stages, we can expect to find its baseline again in the legislator standpoint: a depersonalized person in symmetrical relations with others autonomously proposing reasonable principles in publicly available modes. In order to determine whether the legislator standpoint is continuous with the previous, we need only consider what new elements that standpoint introduces. These new elements prove twofold. First, the difference principle provides the independent standard by which to assess legislation. Secondly, all general information on economy and society is now available to the person occupying the legislator standpoint:

The second principle comes into play at the stage of the legislature. It dictates that social and economic policies be aimed at maximizing the long-term expectations of the least advantaged under conditions of fair equality of opportunity, subject to the equal liberties being maintained. At this point the full range of general economic and social facts is brought to bear. The second part of the basic structure contains the distinctions and hierarchies of political, economic, and social forms which are necessary for efficient and mutually beneficial social cooperation. Thus the priority of the first principle of justice to the second is reflected in the priority of the constitutional convention to the legislative stage[3].

[1] TJ, p. 171.

[2] TJ, p. 174.

[3] TJ, p. 175.

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