Constructing Justice: Fairness, Inclusiveness and Understanding

• Author: John East
• Position: BA (Hons) (Philosophy and Political Science); MA (Political Science); JD (Candidate), Bora Laskin Faculty of Law, Thunder Bay, Ontario, Canada. The author would like to thank Professors Drake and Maundrell for their invaluable input as supervisors of this article. He would also like to thank Ms Amanda Somek for her contributions as editor. Ms ...
• Pages: 1-26

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CONSTRUCTING JUSTICE: FAIRNESS, INCLUSIVENESS, AND

UNDERSTANDING

John East*

A INTRODUCTION

In Political Liberalism, Rawls presents a theory of justice endeavoring to account for the fact

that in a modern democratic society, citizens hold irreconcilable religious and philosophical

conceptions of the world. He does not reconcile these competing views within a theory of justice,

rather he conceptualises justice as a purely political matter. In essence, Rawls privatises how

citizens should connect their underlying personal values to an overarching principle of justice in

a reasonable and rational way. His approach is constructivist in nature and attempts to be as

inclusive as possible. Principles of justice are built from the ground up and depend on

abstractions from specific features of the social world, starting with the basic principle of the

social contract.1 We do not enter democratic society voluntarily, but we are born into it. We find

ourselves situated in a political society at a particular moment in time. Given that our presence in

this society is not an association, a theory of justice should speak to the extent that democratic

citizens are free. Principles of justice should specify fair terms of social co-operation and

regulate the division of benefits that arise, along with the encumbrances required to sustain those

benefits.2

Ultimately, Rawls hopes the most marginalised groups of society will find motivation to adopt

justice as fairness. Yet basing principles of justice on abstractions of a uniquely liberal social

world raises the question: despite Rawls’ constructive efforts, how inclusive and motivating can

his justice really be? One way to test the validity of this approach is to take fundamental ideas

central to his conception, and theorise about exclusionary effects they may have on groups

situated at the far fringes of society. The Anishinabe or Anishinabek are an aboriginal group of

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*BA (Hons) (Philosophy and Political Science); MA (Political Science); JD (Candidate), Bora Laskin Faculty of

Law, Thunder Bay, Ontario, Canada. The author would like to thank Professors Drake and Maundrell for their

invaluable input as supervisors of this article. He would also like to tha nk Ms Amanda Somek for her contributions

as editor. Ms Somek's advice and input played a crucial role in preparing this article for publishing.

1 John Rawls, Justice as Fairness: A Restatement (Harvard University Press 2001) 3-17.

2 ibid.

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peoples fitting this description. More importantly, some Anishinabe communities oppose basic

assumptions of the liberal doctrine, particularly when it comes to how they conceive of property

or land. They teach that we cannot and should not privately own land.

Working through this thought experiment to its final conclusions reveals that basing justice on

liberal assumptions has similar exclusionary effects as theories of justice that purport to

illuminate some universal morality or truth. We must slightly reconfigure Rawls’ political

conception if citizens who hold stark and contradictory views are to adopt justice as fairness.

Overall, justice as fairness becomes more stable and inclusive if we couch it in a specific version

of the pragmatic theory of truth, championed by the pragmatist Richard Rorty.

This article is divided into three key sections. The first section explains key concepts that are

crucial to understanding justice as fairness and include the reasonable comprehensive doctrine,

original position, and overlapping consensus. Special focus is given to how some of these

principles are dependent on uniquely liberal ideals. The second section begins by highlighting

critiques of Rawls’ argument concerning citizens’ motivation to form an overlapping consensus

of justice. The ontological differences between some Anishinabe views of property and

underlying liberal assumptions are so stark it results in a motivational deficit. The last section

explains that to account for this deficit we should ground Rawls’ constructivist approach in a

pragmatic theory of truth.

B KEY CONCEPTS

I Reasonable Comprehensive Doctrine

Rawls argues that each citizen will be able to connect their reasonable comprehensive doctrine to

an overarching conception of justice in a reasonable and rational way. Understanding his

argument requires an explanation of what a reasonable comprehensive doctrine is. We derive the

concept of reasonable from the assumption that society is a system of fair co-operation. Persons

are fundamentally reasonable when they are ready to propose principles and standards of fair

terms of social co-operation.3 People willingly abide by the standards if they feel assured that

others will too. Reasonable people are not motivated by personal desires for good per se; rather,

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3 John Rawls, Political Liberalism (Columbia University Press 1993) 50-52.