The Theory of Justice by John Rawls identifies
the need to define a set of basic impartial social principles behind a ‘veil of
ignorance’, in order to establish a framework of constitutional rules, separate
to the partiality existing in socio-political life1. This creates a liberal
state which is impartial and cannot be influenced by the actions or opinions of
society. This ideal of liberalism can be defined as the supremacy of right over
good2. Rawls proposes the need
to create a systematic account of our ‘moral’ intuitions, to establish the
impartial set of social principles (thereby ensuring they are coherent and
just) as he argued that without these principles, liberalism fails to achieve
equality for the individual. Power is legitimate only when the divisions of both
benefits and burdens within society are fair, and that citizens are free and
equal. For Rawls justice is the primary virtue of social
institutions. In order for laws to be put in place and be exercised they must
and seen to be fair. Two key attributes must be exhibited by the exercise of justice for it
to be perceived as fair. Firstly, the perception by the individual of the initial
situation of freedom and equality, which Rawls refers to as the original
position. Secondly, a set of principles which society would accept, which Rawls
defines as the principles of justice. Sandel’s Liberalism and the Limits of Justice suggests that Rawls’
contemporary liberalism did not take adequate account of the role of moral and
spiritual issues within political life. For Sandel, Rawls conceives of the
individual subject too narrowly, suggesting that the impact of community,
tradition, and history on the individual are not considered sufficiently4. He argues that liberalism
itself is incoherent because the hypothetical subject in the original position
cannot exist without considering culture, background and identity of the
subject. This essay argues that there are four areas of concern for Sandel when
considering the original position and the liberal self: the moral status of the
subject, the lack of self-understanding of the individual, the liberal self in
relation to the effects of natural assets and talents, and the difference
principle. This essay aims to appraise these criticisms, in order to conclude
that although Sandel highlights failings within Rawls’ work, it is evident that
there are also shortcomings in his critique. In order to do so, Rawls’ key
concepts must be analysed.
Rawls’s concept of the ‘original
position’ provides a foundation for the supremacy of the concept of ‘right’ over good5, which Kant’s transcendental
argument fails to do. The original position is the point from which principles
are generated, the initial ‘status quo’, from which fundamentally ‘fair’ agreements are established6. Rawls concludes that the implementation
of principle of justice within society should take the form of pure procedural
justice7. The principles of justice
are established behind a ‘veil or ignorance’ which ensures the impartiality of
judgement. No one is given any advantage in the choice of principles, in effect
a contingency of social circumstances. The most rational choice in the original
position for Rawls requires two basic principles of justice, the equal right to
basic liberties, compatible with a similar scheme of liberties for others8 and, that social and economic
inequalities adhere to two principles. That these inequalities are advantageous
for all, and that they are attached to positions and offices which are open to
Rawls’ argues that once the original
position is established, the principles chosen are ‘acceptable’ from a moral
point of view10.
When the original position has been defined, all agreements concluded are
‘fair’, and the process of reaching these agreements is considered to be ‘just’.
Sandel argues that it is unclear how ‘generous’ the provisions are to the subjects11. The original position is
designed in such a way that the subjects are guaranteed to only ‘wish’ for
certain principles12. The position is fair
under the assumption that the principles of justice ensures a particular outcome,
however these are not necessarily agreed to voluntarily by the subject, as the outcome
The fairness of the procedure appears to originate in the pretence that the
subject will choose ‘fair’ principles of justice14. Rawls sought to highlight
the importance of the moral position of the individual as the basis for the
choice of principles, however this is not achieved in practice when choice is
made on a rational basis, which is the original position15. This appears to be a
valid critique of Rawls original position, as the subject is faced with limited
choice and only one clear option within the veil of ignorance of the original
position. The subject has no concept of history, community, or self-identity.
Therefore, it is evident that the outcome of the original position could be
perceived as pre-determined, as without knowledge of self-identity, the subject
is left with no option but to choose the principles which Rawls’ identifies, as
they ensure the safest outcome.
that the principle of justice can exist alongside the concept of justice itself.
However, for Sandel, it is difficult to distinguish between the values one has,
and the person one is, under Rawls’ principle. Loyalties are more than values one
happens to have, ultimately they shape the person one is. To imagine an agent
without these commitments and attachments is to conceive of someone without
morals or character16.
This liberal ethic ‘puts the self beyond the reach of experience, beyond deliberation
and reflection’17. Without this
self-understanding, Sandel believes that the agent is conflicted between a
sense of detachment, as opposed to entanglement on the other18. A
consequence of this analysis is his concept of the unencumbered self, and its
liberating promise. The unencumbered self is defined by things which one has,
wants, or seeks19. The
ability to choose ends is essential to the unencumbered self. However, what is
denied is the possibility of existing in a community where the self could be at
stake, because of the principles of justice20.
Sandel suggests that this is a key weakness of the
concept of the original position, as it presents a hypothetical subject, existing
without both a sense of identity and morality. As suggested by Mulhall and
Swift, the identification of our highest-order interests seems to presuppose
that the subject is capable of changing one’s views and values21, which
may not be the case, as it is difficult to create a sense of detachment from
ones values, making Sandel’s critique valid. However, for Baker, it is unclear
if Rawls is committed to the image of the human subject as a general
description of who we are. He argues that the image of the subject critiqued by
Sandel is in fact meant to be a person in the original position for a limited
purpose according to Rawls22. For
Baker, this concept of the person does not commit Rawls to a theory of all persons23
(without community, identity and history), suggesting that Sandel’s critique in
this respect is not valid. Rawls’ argues that one should not confuse society as
a whole with the subjects in the original position constructed for the purposes
of deriving critical principles24. The
liberal self is not compromised under Rawls’s theory of justice.
of natural assets is fundamental to Rawls’ principles of justice and is an
agreement made within the original position. For Rawls’, the ‘difference
principle’25 functions in a way which
enables the redistribution of assets, ensuring that all subjects are ‘better
off’, as this equality of distribution benefits the least advantaged26.
However, Sandel argues that this contradicts Rawls individualistic project, as
subjects are not entitled to the assets which they were naturally given27. Sandel
and Nozick both agree that Rawls’ original position places emphasis on the
redistribution of assets rather than morality and consequential decision-making.
Sandel’s critique is strengthened by Nozick’s argument, if natural assets are
arbitrarily distributed, then subjects only ‘have’ rather than ‘deserve’ their
assets, meaning that the difference principle is ‘unjust’28. Nozick
argues that subjects are entitled to the possessions which result from their
natural assets. As he writes, ‘whether or not peoples natural assets are arbitrary
from a moral point of view, they are entitled to them, and what flows from
extends this argument and suggests that the justification of the difference
principle requires acceptance of a group subject ‘entitled’ to the natural
assets and a correspondingly divided conception of individual selves30. However,
Baker argues that entitlements should not be the property of the possessor of
the natural assets, and therefore disagrees with Nozick and Sandel, questioning
the validity of Sandel’s critique31.
According to Baker, it is only experience and memory of
activity which ‘flows’ directly from an individual’s activity, and Rawls’
theory is concerned with the structure in which people act, rather than the
distribution of natural assets32.
Rawls writes; ‘the
self is prior to the ends which are affirmed by it’ 33. Sandel
critiques this, arguing that subjects
are treated as means in themselves. The individual who values justice in the
original position has bounds which are fixed absolutely prior to its choice of
Sandel argues that from this principle, the liberal self exists ‘always’ and
‘irreducibly’ prior to values and ends35.
This assumption about the priority of the self is inconsistent
with understandings and experiences of the subject. It is not sufficient to
support Rawls’ theory of justice36.Therefore, for Sandel, the
difference principle cannot coexist with the theory of the person, as in order
to maximise the potential talents of the subject, they must be used as a means37. Sandel’s
critique results in the questioning of the existence of the liberal self, as
agents being treated as means, with their talents as the property of the state which
cannot co-exist with the concept of the liberal self. This argument strengthens
the value of Sandel’s appraisal of Rawls.
Rawls’ argues that
‘justice is the first virtue of social institutions’38,
the subjects within the original position, under the veil of ignorance hold an
‘inviolability’ based upon the principle of justice which cannot be infringed
upon it by the welfare society39.
Sandel concludes that the exercise of justice has created a decline in the moral
character of the subject, rather than justice being understood as a virtue, it
becomes a vice40. However, Caney argues
that a key flaw within the critique presented by Sandel is the misunderstanding
of Rawls’s claim that justice is the first virtue of social institutions.
Virtue can be understood in two ways; institutional41,
and agent related42,
according to Caney43. Therefore, it could be argued that Sandel
does not truly engage with Rawls’s Theory
of Justice, as his critique appears to work for agent-virtue justice,
however it does not engage with the liberal contention that laws and
institutions should respect the rights of the individual above all else.
Sandel’s critique is flawed because it is directed against agent-virtue, and
not against justice as a virtue of social institutions44. From
a liberal perspective, Rawls’s theory of justice ultimately has the capacity to
be the first virtue under the institutional definition, simultaneously
understanding that it can be ‘morally desirable’ for the individual to
relinquish their given rights45,
creating a key flaw within Sandel’s critique of the original position and thus
the liberal self.
Sandel’s critique highlights
key issues within the original position and the liberal self. This is evident
in his analysis of the value of the decisions made under the veil of ignorance
in the original position, as it would appear that the subject is pre-determined
to choose the principles which Rawls believes one will, based on self-interest.
Further, it would appear that Rawls’ theory does treat the natural assets of
the individual as a means, and as a consequence his individualistic project is
not fully realised. Sandel further argues that the individual within the
original position is not representative of subjects as a whole. However, it is
evident that this was not the intention of Rawls, as the hypothetical subject
is in the original position temporarily, and is not representative of all
subjects. Further, it would appear that Sandel fails to distinguish between
Rawls’ definitions of virtue, meaning that his critique of the decline of the
moral subject appears invalid. Although Sandel’s critique has clear strengths,
its validity is questioned.
1 Minogue, K. (2002). Liberalism. online
2 ibid (pp.3)
3 Rawls, J. (1999). A Theory of Justice. 2nd ed. Oxford:
Oxford University Press. (pp.3)
4 Sandel, M. (1998). Liberalism and the Limits of Justice.
Cambridge: Cambridge University Press.
5 Sandel, M.
(2018). The Procedural Republic and the Unencumbered Self on JSTOR.
6 Rawls, J. (1999). A Theory of Justice. 2nd ed. Oxford:
Oxford University Press. (pp.11)
7 Pure procedural justice can be understood through the example of
gambling, when the outcome is unknown, the procedure is fair.
8 Rawls, J. (1999). A Theory of Justice. 2nd ed. Oxford:
Oxford University Press. (pp.53)
9 Rawls, J. (1999). A Theory of Justice. 2nd ed. Oxford:
Oxford University Press. (pp.53)
10 Sandel, M. (1998). Liberalism and the Limits of Justice.
Cambridge: Cambridge University Press. (pp.127)
11 ibid (pp.127)
13 ibid (pp.127)
14 ibid (pp.127)
15 ibid (pp.104)
16 Sandel, M. (1998). Liberalism and the Limits of Justice.
Cambridge: Cambridge University Press. (pp.91)
17 Sandel, M. (2018). The Procedural Republic and the Unencumbered
Self on JSTOR. online (pp.91)
18 Sandel, M. (1998). Liberalism and the Limits of Justice.
Cambridge: Cambridge University Press. (pp.91)
19 Sandel, M. (2018). The Procedural Republic and the Unencumbered
Self on JSTOR. online (pp.86)
20 ibid (pp.86)
21 Mulhall, S. and Swift, A. (1996). Liberals and Communitarians.
2nd ed. Cambridge: Blackwell Publishers. (pp.11)
22 Jstor.org. (2018). Sandel on Rawls on JSTOR. online
Available at: http://www.jstor.org/stable/3312128 Accessed 21 Jan. 2018.
23 ibid (pp.898)
24 ibid (pp.899)
25 The difference principle is Rawls’s
concept that any inequalities which exist in society should benefit the least
26 Rawls, J. (1999). A Theory of Justice. 2nd ed. Oxford:
Oxford University Press. (pp.65)
27 Sandel, M. (1998). Liberalism and the Limits of Justice.
Cambridge: Cambridge University Press. (pp.102-3)
28 Nozick, R. (1974). Anarchy, State and Utopia. Oxford:
29 ibid (pp.226)
(2018). Sandel on Rawls on JSTOR. online (pp.908)
31 ibid (pp.909)
32 ibid (pp.909)
33 Rawls, J. (1971). A Theory of Justice. Cambridge: Harvard
University Press. (560)
34 Mulhall, S. and Swift, A. (1996). Liberals and Communitarians.
2nd ed. Cambridge: Blackwell Publishers. (pp.47)
35 ibid (pp.46)
36 Jstor.org. (2018). Sandel on Rawls on JSTOR. online(pp.896)
37 ibid (pp.896)
38 Rawls, J. (1999). A Theory of Justice. 2nd ed. Oxford:
Oxford University Press. (pp.3)
(2018). Sandel on Rawls on JSTOR. online Available at:
http://www.jstor.org/stable/3312128 Accessed 21 Jan. 2018. (pp.898)
41 The institutional reading of virtue concludes that justice is the
first virtue of social institutions.
42 The agent-related reading concludes that justice is the first
virtue of personal agents.
43 Caney, S. (1991). Sandel’s Critique of the Primacy of Justice: A Liberal
Rejoinder. British Journal of Political Science, 21(04). (pp.515-6)
44 ibid (pp.515-6)
S. (1991). Sandel’s Critique of the Primacy of Justice: A Liberal
Rejoinder. British Journal of Political Science, 21(04). (pp.516)