In the Nuts and Bolts series I lay out some of the basic concepts thrown around in my areas of interest – philosophy, theology and biblical studies – and explain them for those unfamiliar with them.
This time I’m looking at the “Original Position,” a term that originates with John Rawls, one of the most significant political philosophers of the 20th century. Rawls, like many people in the Western democratic tradition, advanced a form of social contractarianism; the view that the principles of just government are grounded in an agreement (a “social contract”) between the governed and those who govern. Those who govern must govern according to the terms of that contract, and in fact fellow citizens should only support policies or laws that are in keeping with that contract.
But what sort of contract would that be? Is it an overtly stated contract that we all actually agree to? No. Like many other social contractarians (e.g. John Locke), Rawls realised that the types of contracts that everyone might actually agree to could be significantly flawed in all kinds of ways. We want to think of social arrangements in terms of contracts partly because it stresses the fact that each side has the power to negotiate with the other on equal footing with them. But this is often not the case. Simply out of ignorance, for example, we might agree to terms that are actually unjust to us and unfairly advantageous to others. What if members of an ethnic minority in your society were willing to agree to a social contract that, unbeknownst to them, actually had the consequence that they were exploited and seriously disadvantaged when it came to, say, employment? What if all the kind, gentle people were happy to endure conditions in, say, trade negotiations that were flagrantly unfair to them and helpful to cutthroat, assertive, dishonest swindlers? So the actual contracts that people happen to form aren’t really good enough here.
What is needed to come up with the standard of what sorts of laws and public policies are acceptable, then, is a kind of hypothetical social contract, one that we would arrive at under idealised conditions. And what sort of conditions are those, you might ask? Here is where the title of this blog comes into play: The constitutional basis of law and government in a just society, says Rawls, are those that we – or at least ideal versions of ourselves – would formulate from the perspective of the Original Position.
The original position is a thought experiment – a place where we imagine what we would do if we were gathered around the boardroom table of society to decide on the basic rules – the constitutional essentials of government that will constrain all public policy. If we take a fairly “left leaning” approach to the role of government (as it is fair to say that John Rawls did), we are primarily asking basic questions about how society’s resources are to be “divided up.” And here is the problem: How do we, as individuals with our own agendas, our own goals, our own preferences and desires, our own outlook on life and vision of “the good life,” fairly make decisions when taking on a task like this? Human nature being what it is, there will be a tendency to create social structures, laws, policies, practices, institutions, that favour people in our circumstances to the disadvantage of others. Your tax dollars for my ends. We might – intentionally or otherwise – make life worse in society for those who do not share our position in life or our interests. And so on. How do we avoid this?
One of the ways that the original position avoids this is by stripping the parties to this hypothetical contract of knowledge. People in the original position are behind a famous “veil of ignorance.” Because of the veil of ignorance, the original position “is a state of affairs in which the parties are equally represented as moral persons and the outcome is not conditioned by arbitrary contingencies or the relative balance of social forces” [emphasis added].1 The outcome is not so condition, Rawls explains, because the veil of ignorance filters out those accidental, contingent features of their real lives that woukld skew their perspective in normal decision making. To explain just what knowledge the veil of ignorance veils from us, I’ll introduce another of Rawls’s terms: The Circumstances of Justice. Justice is something that is applied to people in the circumstances in which they happen to find themselves. We might be in business, we might be an employee of a business, we might be a farmer, we might be a carpenter, we might be a stay-at-home mum, or any one of a number of other things. We might be male or female, black or white. In addition to this sort of diversity in society, says Rawls, there also exists “a diversity of philosophical and religious belief, and of political and social doctrines.”2 Surveying this list of arbitrary facts that might befall us in society including all of the above, Rawls says “this constellation of conditions I shall refer to as the circumstances of justice.”
In the original position we are aware that the circumstances of justice exist in the world that we are making decisions about, but we distance ourselves from them. We do not know what our circumstances amid the circumstances of justice will be. The veil of ignorance prevents us from knowing any facts that would unduly influence us as we make the rules, so that we have to be prepared for the rules to apply to all of us without partiality, and to nobody’s special advantage or disadvantage. So we must make decisions without knowing how wealthy we are, how attractive we will be, what ethnicity we will be – or, among other things, what religious beliefs we will hold. While one’s privately held belief system, especially if it is highly complex, is excluded from the knowledge of those in the original position, Rawls obviously cannot have people in the original position knowing nothing, so he says in the original position, “For the most part I shall suppose that the parties possess all general information. No general facts are closed to them.”3
The original position is thus set up as a hypothetical place of decision making where people are impartial and treat all parties to the social contract as equals. This impartiality is meant to be ensured by the fact that we the decision makers do not know which position in society we will fill. We do not know what circumstances of justice we will find ourselves in, so we create arrangements that do not advocate, disavow, advantage or disadvantage any of the circumstances of justice. But we do know the “general facts.”
This raises some interesting questions. Among the circumstances of justice are very different perspectives on environmental issues like climate change and the sorts of measures that are warranted to address it. But people in the original position, it would seem, cannot favour any view on the matter. Or is this the point where the lecturer pipes up and declares that his own view – you know, the one supported by the evidence – should count as “general information” that people in the original position should be aware of? What about religious views? Rawls himself clearly counted religious beliefs as belonging to the circumstances of justice, and therefore the veil of ignorance should shield us from our own religious views when making any decisions in the original position. What then of the religious view that in fact all people know that God exists and they also know some of what God requires of us? Paradoxically, it looks like Rawls wants us to imagine ourselves going into the original position assuming that this religious belief is false. These questions have been addressed by plenty of people (in fact my doctoral dissertation was devoted to addressing the implications of political liberalism for religion), and I will have more to say about that in future (and I have said it in a couple of podcast episodes already), but my point is just that the whole thought experiment that is the original position does not cleanly answer any questions. It gives rise to a whole slew of them!
That said, and although I profoundly disagree with some of the conclusions that Rawls himself drew from the exercise, I think there’s something fundamentally right about using tools like the original position. The question we should ask of ourselves and our fellow citizens when it comes to the principles of law and policy is not “what do you want for yourselves right now? More money for people in your circumstances? Better conditions for people who are in your husband’s circumstances? Fewer opportunities for people in Joe foreigner’s circumstances? Easier access to this piece of property that you want for your project? More pay? Lower wages for your staff?” Those are not foundational questions, and we should look at those issues only after we have considered more fundamental ones. Our actual answers to those questions may well be systematically bad. We are selfish! We are ignorant. We don’t adequately consider others. We don’t always appreciate the implications of certain types of law for us. The type of compact we really want to enter as a society, then, is one where we are not biased towards or against ourselves or anyone else. It is one where we know the most important facts (and that is where the controversy properly lies), and we apply them across society in such a way that it is just too risky to disadvantage anyone, because the disadvantaged one may turn out to be us. For this reason political liberalism has been described as an exercise in cutting up the cake – without knowing which slice you were going to get! The decisions that we would, on careful reflection, make under those circumstances – in the original position – should form the basis of our society, said Rawls.
Interestingly – and this will be my parting thought – recall that in the original position when people are making decisions that will affect people in the real world, the veil of ignorance keeps them from knowing what circumstances they will find themselves in. Now – make a decision, under those hypothetical circumstances – on whether or not abortion should, as a rule, be permitted. Oh, and here’s what the veil of ignorance keeps you from knowing: In the real world in the actual circumstances in question, your circumstances of justice includes the fact that you’re an unborn baby, gestation eight weeks.