John Rawls Contract Theory
The remedy for such distortions of judgment is to redefine the initial situation. Instead of a state of nature, Rawls locates the parties to his social contract so that they do not have access to factual knowledge that can disturb their judgments and lead to unjust principles. Rawls` initial position is a situation of initial arrangement in which the parties have no information allowing them to adapt the principles of justice favorable to their personal situation. One of the essential characteristics of the original position is that no one knows his place in society, his class position or social status, nor his race or sex, his wealth in the distribution of natural goods and abilities, his level of intelligence, strength, education, etc. Rawls even assumes that the parties do not know their values or “ideas of goodness,” their religious or philosophical beliefs, or their particular psychological inclinations. The principles of justice are chosen behind a “veil of ignorance” (TJ 12:11). This veil of ignorance deprives the parties of any knowledge of certain facts about themselves, about others, and even about their society and history. For Ronald Dworkin, “a hypothetical contract is not simply a pale form of a real contract; it is not a contract at all” (Dworkin, 1975, p. 18). As can be seen, this criticism does not refer only to Rawls` theory: “It applies to the use of any hypothetical decision model in ethics” (Freeman, 1990, p. 135).
The argument can be illustrated by the example of a poker game, in the middle of which both players notice that a card is missing from the game. According to Dworkin, it is very unlikely that the losing player would be able to convince the winning player to throw into the hand, although he can convince the latter that both would have agreed to such a rule if the possibility of the deck being short had been increased before the match. The same logic applies to the rich in a society: why should they accept rules that, on the basis of a hypothetical contract, restrict their freedom by binding it to the benefit of the poorest? Since the parties have not really agreed on this, the hypothetical contract seems non-binding and meaningless. Unfortunately, the obvious solution to this dilemma of replacing the hypothetical contract with a real contract is impossible. This would require not only reshaping almost all elements of Rawls` initial position, but would also exclude the justification of both principles of justice. As Rawls and Sandel argue, “real contracts . cannot justify” (Sandel, 1998, p. 125), because they will always be charged with contingencies and conventions of a particular society. Another way Rawls represents the “deeply social” foundations of the principles of justice is to focus on “the fundamental structure of society.” The “first subject of justice,” says Rawls, are the principles that govern the basic social institutions that form the “basic structure of society” (TJ Section 2). These basic institutions include the Political Constitution, which establishes procedures for legislation and law enforcement, and the system of judicial procedures for the settlement of disputes; the foundations of the economic system, including norms of ownership, its transmission and distribution, contractual relations, etc., all of which are necessary for economic production, exchange and consumption; and, finally, the norms that define and regulate the permissible forms of the family necessary for the maintenance of society. It is incumbent upon the principles of justice to specify and evaluate the system of rules that make up these fundamental institutions and to determine the equitable distribution of the rights, duties, opportunities, powers and positions to be exercised there. What makes these institutions and their organization the first subject of the principles of social justice is that they are all necessary for social cooperation and have such a profound impact on our situation, our goals, our character and our prospects for the future.
No stable and sustainable society could exist without certain rules of ownership, contract and transfer of goods and resources, which allow economic production, trade and consumption. Nor can a society last long without a political mechanism to settle, create, revise, interpret and enforce its economic and other cooperative standards; nor without some form of family to reproduce, support and nourish the members of their future generations. This distinguishes social institutions that form the basic structure from other deeply influential social institutions such as religion; Religion and other social institutions are not fundamental in Rawls` sense, as they are not necessary for social cooperation among members of society in general.
