Rawls published his Theory of Justice as a response to the utilitarian ethos that abounded at the time. He thought that the utilitarian system caused too many problems, both in that it caused counterintuitive moral choices to be taken, and because it put too much onus on the moral agent to make these choices. He felt that issues where one individual could be negatively affected for the benefit of several others, as in Peter Singer's Survival Lottery, were not what we think of as being morally good, and thus utilitarianism was flawed. He also objected to the load placed upon moral agents with each moral act. The fact that they had to try to determine which was the best course of action for all actions was unacceptable. Thus, he attempted to formulate a set of predefined principles by which moral agents could operate, and to do so in accordance with our moral instincts. Thus, he formulated a situation which would allow the determination of the best moral system for all, a system based on principles that would be "the final court of appeal" for moral judgements, and thus take most of the pressure off moral agents. In order not to skew the principles thus generated in favour of whoever generates them, he created a "veil of ignorance" condition, which limits the knowledge that can be used by a moral agent in formulating the principles. He goes on to suggest that this system necessarily leads to a combination of two certain principles, ones which he has earlier postulated. Various criticisms are often levelled at Rawls, many concerning his use of this veil of ignorance, and also that he does in fact recourse somewhat to the utilitarian framework that he is trying to escape from. I think that his system is indeed flawed, that it fails to provide an 'appropriate' ethical system. However, whether that is the fault of his veil of ignorance or a deeper problem with contractual theories of ethics is debatable. I think that as contractual systems go, Rawls' theory is very well formulated, and does lead to the principles that he describes. However, I think that some of the underlying principles are incorrect, and I am particularly unhappy with the idea that we should all come up with the same moral system.
To begin with, we need to define what the öriginal position" that Rawls sets out is, both in intention and in fact. What it is intended to be is a sketch of the background against which the moral principles will have to operate. It takes in to account both the physical and sociological situations, or öbjective" and ßubjective" factors. He takes in to account why we should both need and be able to co-operate, and why we are also not entirely willing to co-operate. He points out that we have both a divergence and identity of interests, in that we recognise that we can all benefit from co-operation, but each want to benefit to a greater extent from such co-operation. Thus, what a theory of justice must do is define how the benefits are apportioned. The objective factors in this society are that they must be a group of comparable individuals, such that no one can assume dominance against the combined will of the others, and that whilst there are enough resources for all to survive, there are not enough to completely fulfil the desires of all individuals. In addition to these, there are the subjective factors, those that are determined by our nature as humans. The subjective factors present in the original position are that as individuals, or rather as representatives of families, as he sees individuals, we have different ideas of what goals to achieve and how to achieve them, and we attempt to further these goals in our own way. Individuals also do not exhibit any interest in the ends of others, so that the situation is one where
``mutually disinterested persons put forward conflicting claims to the division of social advantages under conditions of moderate scarcity.''
This serves to show why we need a theory of justice, and also to give us a test environment to apply it to.
We must now ask whether this sketch of the basic conditions of a society is a reasonable one. I think that it is, since it does seem to account for the reasons why we need to co-operate at all, and why our co-operation is not total. One might question some of the subjective factors that he postulates, particularly the mutual disinterest, but he later points out that he does this only so that he cannot be said to be relying upon assumed interest in other members of the society. In other words, he removes the idea of caring for others in order to remove the temptation to use that as part of the reason for our co-operating. He does however retain a common family interest, what we could now label as the interest of our memes, which he uses to explain why we should care what happens to generations outside our own. I do not think that we could dispute this on empirical grounds, since the drive to nurture our offspring is one of the major motivating factors in our actions.
Having laid out the scenario with which our theory of justice must deal, Rawls goes on to describe the mechanism for the genesis of the principles of the theory. He first lays out five formal conditions that principles must comply with in order to be accepted, and then describes a veil of ignorance from behind which any moral agent in can create his moral system in accordance with the circumstances and the formal conditions. The formal conditions are there mostly to ensure that the principles are relevant to a universal theory, but also to eliminate certain undesirable moral lines, in the form of egoism and its type. The formal conditions can be condensed down to one phrase, that is complex, but is not due for discussion in this essay:
``A conception of right is a set of principles, general in form and universal in application, that is to be publicly recognised as a final court of appeal for ordering the conflicting claims of moral persons.''
The veil of ignorance is an attempt to "nullify the effects of specific contingencies", that is to stop individuals from creating principles to further their own interests in such a way as might be detrimental to others. What it says is that when considering moral principles, an agent cannot take into account information such as his own place in society, his abilities, nor his own interests. Some commentators have treated the veil of ignorance as an actual condition that must happen to people, and have thus objected, as Angelo Corlett does, that one could still ëntertain beliefs" about your status etc. However, I think that this is missing the point entirely, since what Rawls is attempting to achieve is a criterion for testing whether principles should be part of a theory of justice, he is not necessarily trying to get moral agents to formulate an entire theory whilst under the influence of this strange affliction that makes them forget who they are, what they can do and the like.
What the veil of ignorance does do is separate the formulation of a principle from an individual who could benefit from pushing it one way or the other. Obviously, the individual will achieve some effect from the principle, otherwise it would be pointless to formulate it, but they do not know whether it would benefit them or not. Thus, Rawls suggests that they will attempt to minimise their chance of suffering bad effects over increasing their chance of benefiting more.
We must now consider whether or not this veil of ignorance is a beneficial addition to his system. The most obvious claim is that it makes the system as impartial as possible, but this is assuming an awful lot. We take for granted that bias is a bad thing, that when making a judgement we should try to be 'impersonal' about it, but I see no valid reason why this is necessarily the case. I grant that it is the case in most, if not all, practical examples, but I fail to see how favouring some particular individual or group makes a moral theory any less valid. In order to say that we have to presuppose another value judgement, that discrimination, which is effectively what a bias would amount to, is wrong. Whilst I recognise that Rawls is working from empirical principles rather than logical ones, it still seems to be an inappropriate step to make to assume the immorality of discrimination. The next point to be made in favour of this ignorant position is that it will lead to greater social equality, due to the fact that it leads to Rawls two principles, the equal liberties principle and the maximin principle. However, we are again left with the feeling that this is presupposing that certain states of affairs are better than others, and in this case we have even more evidence. Rawls freely admits that he constructed this system in order to generate these two principles, and so we find bias in intent already. However, this is no reason to assume that the system is not itself valid, and that it would generate these valid principles. However, we need to assume that both liberty and equality are 'good' things, and again we are left with a moral presupposition where none should be. One argument in favour of this veil of ignorance that I would not take issue with is that since in theory any moral agent could be placed behind the veil, and come out with the same result, all individuals should recognise the moral system that it produces as the best one possible, and that it would "generate its own support", something that Rawls feels is essential for a decent moral theory. However, that is only the case if one thinks that the system is valid, and I do not.
Compare to these alleged benefits from the inclusion of the veil of ignorance the demerits it brings with it. If we make our system from behind the veil, then we are lacking information that many would regard as important. If we are not aware of our own place in society, then we are not really making the decision as our full selves, but rather have had some of our personality removed. One might say that it is unnecessary for the choice, or even detrimental, but I do not think that we can say that with surety. If we do not identify as an individual within our society, we need not care what happens to it. If we seek to add this additional stipulation, that we do care what happens, then we make the system much more complex, and I think would find some unwanted results coming out. Another point against the system is that it is designed to lead to Rawls two principles, and so is questionable in validity. This is not so much of a concern, since one can easily conceive of it being a valid system anyway, but it is something that must be examined. Finally, the veil of ignorance, or at least what Rawls expects to get out of it, assumes an aversion to risk, in that it assumes that our ignorant moral agent will choose to play it safe and minimise his worst potential situation, whereas it may in fact be the case that he would take a chance and create some highly discriminatory principles in the hope that they would benefit him. There is no reason why this is not a perfectly rational choice, as Rawls would want.
It seems to me that the veil of ignorance is not at all necessary as a part of Rawls' theory, since if one follows all his other principles, as well as one stipulating that you should try to minimise the worst case scenario, you would come out with the same results. However, I am not sure that they are the results that Rawls claims, nor that they would be the 'best' results. This additional principle of minimising risk, whilst not stated anywhere in Rawls, is implicit, and could do with being stated in his theory. If it is, then I think that his veil of ignorance becomes an idle wheel, fulfilling no function. The veil also assumes the beneficial effects of impartiality, something which I would contest its correctness in doing. I can see that one could derive benefit from being in full possession of the facts when making a choice about a system of justice. It seems to me that Rawls takes to much for granted in his theory, and perhaps needs to increase his veil of ignorance to include some of the moral presuppositions that he makes.
A. Corlett, Equality and Liberty J. Rawls, A Theory of Justice (Bristol: OUP, 1973)