By Victoria Tabut LLB (Hons)
INTRODUCTION.
A social contract is the voluntary agreement among individuals by which, according to any of the various theories, as of Hobbes, Locke, or Rousseau, organized society is brought into being and invested with the right to secure mutual protection and welfare or to regulate the relations among its members[2].
The theory of justice.
Original position and the veil of ignorance.
This is a hypothetical position of the initial status quo. It is the original position of equality and corresponds to the state of nature in the traditional theory of the social contract. However, it is more thought of a primitive condition of culture rather than the traditional state of nature. This means that the original position is inclined to be deduced from the activities and composition of people as opposed to the natural occurrence of events[3]. In this instance, no one knows their place, class position or social status. They have no conception about the fortune in the distribution of natural assets and abilities or intelligence and strength in conception of good or psychological prosperities. This is a situation where all individuals are under a veil of ignorance. The aim of such a state is to nullify effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage.
In this position, it is assumed that the individuals will be able to enter into a fair agreement or bargain. This is due to the fact that they are similarly situated in terms of position and status because there are no advantages or disadvantages emanating from natural chance or contingencies of social circumstances. It is also because in this position, individuals are viewed as moral persons who are capable of a sense of justice[4]. This is because, although they are unaware of the state of their socio-political economical state, they are provided with general facts. They understand political affairs and the principles of economic theory, social organization and human psychology[5].
Justice as fairness.
This is the idea that justice principles agreed upon in the original position is fair and not its concepts as fairness. It’s the same as the analogy of poetry as a metaphor, it does not mean that poetry is a metaphor but rather is comprised of elements of a metaphor, according to Rawls. This theory suggests that there must certain guiding principles of justice which must be chosen so as to assign basic rights and principles and to determine division of social benefits. In this state, society has not been setup and the content of the relevant agreement is not to enter into a given society or to adopt a given form of government but to come up with guiding principles in common to govern the society the individual is in[6].
These principles will have the function of regulating claims and will become the foundation charter of society which is just and may be determined by rational persons, these persons must have equal liberty which in essence is hypothetical, and finally, the problem seeking to be regulated must have a solution. These principles fall in an ideal sequence of hypothetical agreement. Firstly, there must be regulation of all subsequent criticism. Secondly, there must be reformation of institutions for the sake of conception of justice and to form a legislature with the object of enacting laws to curb subsequent problems.
There are certain fundamental terms of association for such an agreement to be bargained. First, the society must be in a state of original position. Secondly, individuals must be free and rational persons concerned with means to further their own interests. This means that the concept of utilitarianism is incompatible with such a society. This is because parties in an original position are rational, that is they use the most effective means to a given end and they are mutually disinterested, that is not to mean that they are egotistical but rather they do not have vested attention to the acts or beliefs of another or others. Such an individual is in the business of advancing themselves and will not accept a situation simply because it advantageous to the entire society irrespective of their own needs.
As earlier discussed, the agreement entered into in this position is not for the basis of an already formed society but for the purposes of achieving common guiding principles of justice in a newly formed government which encompasses the views of these individuals. However, no society can be a scheme of cooperation which mean enter into literally and are often placed into already formed society by birth. The closest this literal society can come to the one in the original position is by satisfying principles of justice which equal persons whose relation with one another is fair would enter into. It must also satisfy the general recognition of a fact which would signify public acceptance[7].
In regard to the choices of principles, there are two principles of justice. First, is that all individuals have equal liberties which are fundamental rights and freedoms are inherent and cannot be limited without occasioning an injustice. The second is that there are certain social inequalities by virtue of nature or social circumstances such as health, vigor and intelligence which may be limited so as to create an advantage to all persons. In essence, wealth and authority are the limitations to effectuate such. For instance, authority may limited to one elected representative for all person, and whereby the lack of such a position would create disadvantages for the less fortunate[8].
Rawl’s theory of justice as a contractian one.
Locke believed that man’s primeval state was one of perfect freedom which degenerated when dangers threatened individual existence. Men united and became a political society by contracting to give power to a governing body which would act so as to protect the individual. There was a contract inter se between members of the society and another between these members and the governing body. The governing body enjoyed the trust of the governed only so long as it carried out its basic duties which are preservation of life, liberty and estates. Tyranny begins where law ends. Locke insisted that the trust enjoyed by the government would be forfeited where there was a failure to protect subjects. Where man’s inalienable right to the preservation of life is ignored by government, Locke suggests that such a government ought not to be obeyed.
Rousseau argued for the natural goodness of human nature. Man is born innocent and good, free and equal, but the corrupting powers of civilization are responsible for the evil situation in which he finds himself. The foundation of the State is a Social Contract made by citizens who enter into it on the basis of their inalienable rights to freedom and equality. Democracy thrives when the general will prevails. The people’s right of sovereignty must never be surrendered[9].
Kant's most significant contribution to political philosophy and the philosophy of law is the doctrine of Rechtsstaat. According to this doctrine, the power of the state is limited in order to protect citizens from the arbitrary exercise of authority. The Rechtsstaat can be translated as the legal state or state of rights. It is a constitutional state in which the exercise of governmental power is constrained by the law and is often tied to the concept of the rule of law. Kant's political philosophy has been described as liberal for its presumption of limits on the state based on the social contract as a regulative matter[10].
In this instance, the social contract theory will be adjudicated as one theory but with different approaches. The social contract theory is one that has been envisioned by various scholars whose ideologies have been influenced by their different backgrounds and circumstances. This connotes that their approaches to this theory differ. However, some elements of the various theories remain constant. They are that in primeval times, individuals were born into a state of nature which was generally anarchic. Man’s natural reason and his innate need to live within society led him to create a society by contracting with others. The essence of the Social Contract was the surrender of some rights and powers to a Sovereign in the expectation that he would safeguard individuals and protect them against oppression.
In essence, the theory of justice according to Rawls is that Social contract is an opportunity that presents itself over and over again. It is in contemporary times. Rawls theory is that a social contract is for the purpose of justice. Justice is the structural rules in society within people with different perspective in life can co-exist, co-operate and even compete. A just society is one which we would all agree to if we had an opportunity to choose our circumstances in the society. The social contract never happened but it could or will happen. A veil of ignorance will prompt a just society. This is ignorance based on status of persons in society. It may be limited if people knew this that would not compromise their status such as Primary needs required and Politics of society. At this position of ignorance that is original position rules made are just rules.
It would appear that, Rawls is a contemporary social contract thinker but with a different approach to the theory. This is because, he satisfy the common element of the social contract theory in his theory of justice. First, there is the issue of primeval times, Rawls suggest that man is in the primitive condition of culture which in essence means that he is in a state of non-governance and lack of a formal society, and this corresponds with the historical, traditional concept of a state of nature. Secondly, is the issue of formation of a society where according to Rawls is in contemporary times and is achieved by individuals of equal liberties under a veil of ignorance and will result in a just society which is consistent with the formation of a society in the social contract theory. In the issue of surrender of power to a governing body, Rawls states that there are certain liberties under the second principle of justice which have resulted to social inequalities due to nature and other contingencies which may be limited so as to cause an advantage to all persons.
In conclusion, though there are certain differences in the theory of justice by Rawls as compared to the general social contract theory, these differences are qualified. As earlier stated, the social contract theory is advocated by many other philosophers who though have a common base may differ in other aspects due to ideological backgrounds. Rawls may then be placed in this category of social contract thinker but with a slightly modified theory.
Progression of social contract tradition.
The modification of Rawl’s theory may in itself qualify as a progression to the traditional stance of the social contract theory. Rawl’s theory has been criticized as irrational because the concept of the veil of ignorance has been viewed by many as being hypothetical and as such a state of utopia which he responds by saying that the decision of one person is the reflection of the entire society which is rational and has equal liberties. This response is itself not a response as it circumvents the issue. Truly, this theory though irrational may be a great standard for a corrupt society which will not be met but will serve as a measure of non-bias and quality assurance even if it is to a minimal level. This is especially since the agreement in this theory happens in a contemporary world. This in itself is an advancement on the traditional social contract theory where the status of all persons are not adhered to but are in essence weaker parties to a contract without any protection and must render habitual obedience to the governing body.
The other criticism is that the ability of bargaining in the usual sense is limited by the limited knowledge. However, Rawl’s states that there is provision of general information or knowledge that will not create contingencies but help in making a fair agreement based on the guiding principles of justice. This creates fair terms for all persons unlike the social contract tradition where the terms are not particularly adhered to. In fact, there is contemplation of injustice with the provided recourse or revolution or outsing of the sovereign in cases of such by theorists such as Rousseau and Locke respectively. Rawls also criticized this position by challenging law makers to stand at a neutral position by wearing a veil of ignorance.
In my view, the most significant progression that Rawls made to the social contract theory was the conception of the entering into this agreement in contemporary times. This would cure other forms of radical movements anticipated by the social contract tradition such as revolution. It is in fact substantial to assume this because there is a renewal of terms of the social contract in many modern nation-states through election and other means. This point has been completely disregarded by the traditional social contract theory leading to agitation and incitement of individuals who believe that they have no recourse of asserting their initial rights.
Conclusion.
Rawls may be classified as a social contract theorist who envisions the contract as being entered into in contemporary times by individual who are rational and with equal liberty that is in a veil of ignorance and as a result, their decisions ate just and fair forming a society that mirrors this. He progresses the social contract theory by introducing certain elements in is theory such as the veil of ignorance, guiding principles of justice in entering into the agreement and the creation of a fair and just society to all individual by virtue of these elements.
Bibliography.
1. A theory of justice by John Rawls, Cambridge, Mass: the Belknap Press of Harvard University Press Copyright 1971.
2. John Locke, Second Treatise of Government.
3. Jean-Jacques Rousseau, The Social Contract.
4. The Foundations of Metaphysics of Morals by Immanuel Kant.
[1] Cambridge, Mass.: Harvard, 1971.
[2] dictionary.reference.com/browse/
[3] The metaphysics of morals, pt.I and pt II of the essay ‘Concerning the common saying: This may be true in theory but it does not apply in practice’ in Kant’s political writing, ed. Hans Reiss and trans. By H.B Nisbet. ( Cambridge, The University Press, 1970).
[4] A theory of justice by John Rawls, Cambridge Mass: The Belknap Press of Harvard University Press.
[5] J.C Harsanyi, cardinal utility in Welfare Economics and in the Theory of Risk taking, Journal of political Economy, vol. 61 (1953).
[6] Philosophical dialogue on Justice: John Rawls on Distributive Justice.
[7] Philosophical dialogue on Justice: John Rawls on Distributive Justice.
[8] A theory of justice by John Rawls, Cambridge Mass: The Belknap Press of Harvard University Press.
[9] Peter Curzon Lecture Notes on Jurisprudence Lec (Bookos.org).
[10] Thomas Fleiner, Lidija Basta Fleine, Constitutional Democracy in a Multicultural and Globalised World.
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