Rawls, Mills & Theories of Justice

In his book, A Theory of Justice [1], Dr. John Rawls refers to “the first principle of justice” that involves a set structure of basic liberties having a higher standing and requirement to be protected than other societal concerns like efficiency, culture, and overall prosperity. Unlike John Stuart Mill [2], Rawls does not leave the concept of liberties open-ended, chock-full of ambiguity and vagueness. He does so by putting it in the context of a known format of the following list [3], as seen in many nations’ constitutions:

1. Liberty of conscience and freedom of thought.

2. Freedom of speech.

3. Freedom from arbitrary arrest.

4. Freedom to own and right to property.

5. Freedom of assembly.

6. Right to vote.

7. Right to contest for public office.

The real essence of justice is the protection of the above rights. As we can observe from the above list, liberty of conscience and freedom of thought is the primary basic liberty, which is a completely different discussion but, in a nutshell, it is wider than just the individual’s general system of belief or right to religion. OHCHR states that it covers all aspects and ethics that human being cherishes. A reference to this in international law can be seen under Art. 18 (1) of the International Covenant on Civil & Political Rights [4].

On the other hand, Mill does not give a list of liberties and rights. He states that liberties and rights are subjective and malleable. He further states utility is pleasure and society should encourage individuals to derive as much utility/pleasure as they can.

He too advocated that for people to prosper, they had to be given certain freedoms and rights to go about their life. According to Utilitarianism, these liberties and rights would make people act in a way that gives them the highest form of utility/pleasure. Mill believed that morally speaking, people will perform only those acts which derive the highest overall utility. This allows only utility-based considerations to be factored into the discussion [5]. This part of the utilitarian theory hits a roadblock which Rawls too refers to as such a society is quite linear in thinking. They will allow practices if either utility or pleasure is derived. If the concept is not limited like the way Rawls puts it, it may lead to contradicting scenarios where anti-societal actions are sanctioned. Like slavery being allowed as in slavery if utility or pleasure is derived. The same can be extended to the allowance of activities by society that society itself considers immoral like free to operate brothels, open carry of intoxicants, distribution of narcotics, etc. This is precisely why Rawls states that rights must be grounded in relation to the social contract between people and society. Under social this contract, members of a society agree to restrain/surrender some of their many freedoms to authority in lieu of maintenance and protection of their other rights along with law and order. The people entering this social contract would be in the “Original Position” which is an artificial device created by Rawls for balancing the distribution of rights and justice. Here, people are placed under the veil of ignorance [6], under this veil, all personal traits of the people would be non-existent so that no one has a distinct advantage over the other which was missing under Utilitarianism wherein the Principle of Equality would not be achieved due to economic, social, political privileges enjoyed by a few to gain the higher ground on the larger part of the society.

The major differences between the two theories come up when we examine the concept of justice. This is best explained in the paper by Prof. Dalaqua [7]. He writes that due to Mill’s concept of the Greatest Happiness Principle, his version of utilitarianism sometimes departs from the concept of justice to the extent of sacrificing it to maximize utility. Rawls states that only in exceptional circumstances shall this departure be allowed. A starving man steals food to survive, here, this man is not breaking the law as he is doing so to save his life, that too his own. This argument could have also been made in the case of R v. Dudley & Stephens [8] as according to Mills, this stealing for self-survival is not a precept to justice as in dire situations, the principle of justice ceases to be. The main difference between the two philosophers is that Mill’s principle of justice is mutable. It is a dynamic concept that is subject to the parties involved and depends on the facts and circumstances that it is a product of. Rawls is of the school of thought that justice is finite, and its principles are set in stone which is neither a sustainable concept nor universally applicable. This is seen in hollow justice delivered by courts by the enforcement of unjust laws like exploitative tax regulations, biased competition enactments, and archaic divorce laws, etc. Such a caged version of justice is against Mill who leaves it up to the people to discover a version of justice that can be best applied to the society at large as justice cannot be applied unilaterally. The principles of justice can be best formulated with societal and government collaboration as seen from the white paper process in India.

[1] Belknap Press, 1971.

[2] Utilitarianism (London, Parker, Son & Borne, 1863).

[3] A Theory of Justice, supra note 3, at 61.

[4] Part I, GRA 2200A (XXI), 1966.

[5] Dr. Evan Tiffany, Conflicting Rights: Utilitarianism & Rawls (Associate Prof. Phil, Simon Fraser University).

[6] Developed taking inspiration from the Age of Enlightenment, 18th century Europe.

[7] Dr. Gustavo Hessmann Dalaqua, John Stuart Mills v. John Rawls: A Comparison, Seara Filosófica, N. 8, Inverno, 2014, P.61-69.

[8] 14 QBD 273 DC.

Art: "Justice" by Pierre Subleyras.