Justice as Fairness / Gerechtigkeit als Fairness (Englisch/Deutsch). John Rawls
in a joint activity and amongst themselves settling or acknowledging the rules which define it and which determine the respective shares in its benefits and burdens. A practice will strike the parties as fair if none feels that, by participating in it, they or any of the others are taken advantage of, or forced to give in to claims which they do not regard as legitimate. This implies that each has a conception of legitimate claims which he thinks it reasonable for others as well as himself to acknowledge. If one thinks of the principles of justice as arising in the manner described, then they do define this sort [56]of conception. A practice is just or fair, then, when it satisfies the principles which those who participate in it could propose to one another for mutual acceptance under the afore-mentioned circumstances. Persons engaged in a just, or fair, practice can face one another openly and support their respective positions, should they appear questionable, by reference to principles which it is reasonable to expect each to accept. [179]
It is this notion of the possibility of mutual acknowledgment of principles by free persons who have no authority over one another which makes the concept of fairness fundamental to justice. Only if such acknowledgment is possible can there be true community between persons in their common practices; otherwise their relations will appear to them as founded to some extent on force. If, in ordinary speech, fairness applies more particularly to practices in which there is a choice whether to engage or not (e.g., in games, business competition), and justice to practices in which there is no choice (e.g., in slavery), the element of necessity does not render the conception of mutual acknowledgment inapplicable, although it may make it much more urgent to change unjust than unfair institutions. For one activity in which one can always engage is that of [58]proposing and acknowledging principles to one another supposing each to be similarly circumstanced; and to judge practices by the principles so arrived at is to apply the standard of fairness to them.
Now if the participants in a practice accept its rules as fair, and so have no complaint to lodge against it, there arises a prima facie duty (and a corresponding prima facie right) of the parties to each other to act in accordance with the practice when it falls upon them to comply. When any number of persons engage in a practice, or conduct a joint undertaking according to rules, and thus restrict their liberty, those who have submitted to these restrictions when required have the right to a similar acquiescence on the part of those who have benefited by their submission. These conditions will obtain if a practice is correctly acknowledged to be fair, for in this case all who participate in it will benefit from it. The rights and duties so arising are special rights and duties in that they depend on previous actions voluntarily undertaken, in this case on the parties having engaged in a common practice and knowingly accepted its benefits.13 It is not, however, an obligation which [60]presupposes a deliberate performative act in the sense of a promise, or contract, and the [180] like.14 An unfortunate mistake of proponents of the idea of the social contract was to suppose that political obligation does require some such act, or at least to use language which suggests it. It is sufficient that one has knowingly participated in and accepted the benefits of a practice acknowledged to be fair. This prima facie obligation may, of course, be overridden: it may happen, when it comes one’s turn to follow a rule, that other considerations will justify not doing so. But one cannot, in general, be released from this obligation by denying the justice of the practice only when it falls on one to obey. If a person rejects a practice, he should, so far as possible, declare his intention in advance, and avoid participating in it or enjoying its benefits.
This duty I have called that of fair play, but it should be admitted that to refer to it in this way is, perhaps, to extend the ordinary notion of fairness. Usually acting unfairly is not so much the breaking of any particular rule, even if the infraction is difficult to detect (cheating), but taking advantage of loop-holes or ambiguities in rules, availing oneself [62]of unexpected or special circumstances which make it impossible to enforce them, insisting that rules be enforced to one’s advantage when they should be suspended, and more generally, acting contrary to the intention of a practice. It is for this reason that one speaks of the sense of fair play: acting fairly requires more than simply being able to follow rules; what is fair must often be felt, or perceived, one wants to say. It is not, however, an unnatural extension of the duty of fair play to have it include the obligation which participants who have knowingly accepted the benefits of their common practice owe to each other to act in accordance with it when their performance falls due; for it is usually considered unfair if someone accepts the benefits of a practice but refuses to do his part in maintaining it. Thus one might say of the tax-dodger that he violates the duty of fair play: he accepts the benefits of government but will not do his part in releasing resources to it; and members of labor unions often say that fellow workers who [181] refuse to join are being unfair: they refer to them as “free riders,” as persons who enjoy what are the supposed benefits of unionism, higher wages, shorter hours, job security, and the like, but who refuse to share in its burdens in the form of paying dues, and so on.
[64]The duty of fair play stands beside other prima facie duties such as fidelity and gratitude as a basic moral notion; yet it is not to be confused with them.15 These duties are all clearly distinct, as would be obvious from their definitions. As with any moral duty, that of fair play implies a constraint on self-interest in particular cases; on occasion it enjoins conduct which a rational egoist strictly defined would not decide upon. So while justice does not require of anyone that he sacrifice his interests in that general position and procedure whereby the principles of justice are proposed and acknowledged, it may happen that in particular situations, arising in the context of engaging in a practice, the duty of fair play will often cross his interests in the [66]sense that he will be required to forego particular advantages which the peculiarities of his circumstances might permit him to take. There is, of course, nothing surprising in this. It is simply the consequence of the firm commitment which the parties may be supposed to have made, or which they would make, in the general position, together with the fact that they have participated in and accepted the benefits of a practice which they regard as fair.
Now the acknowledgment of this constraint in particular cases, which is manifested in acting fairly or wishing to make amends, feeling ashamed, and the like, when one has evaded it, is one of the forms of conduct by which participants in a common practice exhibit their recognition of each other as persons with [182] similar interests and capacities. In the same way that, failing a special explanation, the criterion for the recognition of suffering is helping one who suffers, acknowledging the duty of fair play is a necessary part of the criterion for recognizing another as a person with similar interests and feelings as oneself.16 A [68]person who never under any circumstances showed a wish to help others in pain would show, at the same time, that he did not recognize that they were in pain; nor could he have any feelings of affection or friendship for anyone; for having these feelings implies, failing special circumstances, that he comes to their aid when they are suffering. Recognition that another is a person in pain shows itself in sympathetic action; this primitive natural response of compassion is one of those responses upon which the various forms of moral conduct are built.
Similarly, the acceptance of the duty of fair play by participants in a common practice is a reflection in each person of the recognition of the aspirations and interests of the others to be realized by their joint activity. Failing a special explanation, their acceptance of it is a necessary part of the criterion for their recognizing one another as persons with similar interests and capacities, as the conception of their relations in the general position supposes them to be. [70]Otherwise they would show no recognition of one another as persons with similar capacities and interests, and indeed, in some cases perhaps hypothetical, they would not recognize one another as persons at all, but as complicated objects involved in a complicated activity. To recognize another as a person one must respond to him and act towards him in certain ways; and these ways are intimately connected with the various prima facie duties. Acknowledging these duties in some degree, and [183] so having the elements of morality, is not a matter of choice, or of intuiting moral qualities, or a matter of the expression of feelings or attitudes (the three interpretations between which philosophical opinion frequently oscillates); it is simply the possession of one of the forms of conduct in which the recognition of others as persons is manifested.
These remarks are unhappily obscure. Their main purpose here, however, is to forestall, together with the remarks in Section 4, the misinterpretation that,