CONTRACTUALISM:
RAWLS’S JUSTICE AS FAIRNESS

Moral Conversation Project for next time:  In “The Case for Animal Rights,” Tom Regan 
presents some criticisms of a contractualist or “contractarian” approach in light of its 
treatment of the rights of animals (B, 111-112).  Peter Carruthers defends a contractualist 
approach to this issue (B, 127-133).  Who do you think has the better of this debate and 
why?

I. Utilitarianism and Libertarianism as competing conceptions of moral equality.

A. Utilitarianism: Everyone’s happiness matters equally.  Everyone is owed 
equal consideration of his or her interests (happiness).
B. Libertarianism:  Everyone has an equal dignity or moral status, consisting in 
having equal negative rights to life, liberty, and property.

II	Rawls’s contractualism offers a different conception of moral equality.

A. Morality as a system of norms for a community of free and equal persons.
1. The norms structure a community of equals—they give everyone equal 
status and express respect for this equal status.
2. The norms are themselves subject to the agreement (consent) of free and 
equal persons.  (Note the difference with Locke:  For Locke, norms 
granting equal moral rights are assumed as given, and political laws are 
subject to consent.  For contractualism, even moral norms are derived 
from the consent of free persons.)
B. Comparison and contrast with Libertarianism and Utilitarianism
1. Like Libertarianism, Contractualism sees human beings as having equal 
moral status by virtue of their being persons, i.e., their capacity for 
independent moral responsibility and agency.  Note the difference with 
Utilitarianism here.  What is morally considerable is not pleasure or 
happiness, but the capacity of moral action.
2. But unlike Libertarianism, and like Utilitarianism, Contractualism doesn’t 
assume a fixed set of natural rights as fundamental and self-evident.  
Rather it derives specific rights (e.g. of liberty, property, etc.) from what 
rights free persons would agree or consent to.  And, also like 
Utilitarianism, it maintains that the consequences of the social acceptance 
of a right are relevant here.  Roughly:  a right exists if a free and equal 
person would consent to the consequences of the social acceptance of that 
right.

II. Justice as Fairness

A. Strictly speaking, Rawls’s theory is a theory of justice.
B. Roughly speaking, his idea is that society is a set of rule-structured practices 
and institutions, and that the rules (and the society) is fair and just if its most 
basic rules could be chosen by individuals in a situation (the original position) 
which is itself fair and just.
C. The original position:
1. Individuals choose principles the will guide evaluation of
2. the “basic structure” of the society in which they will live.
3. They choose behind a “veil of ignorance” regarding their own social 
position, talents, and interests,
4. but choose principles likeliest to put them in the best person to pursue 
their interests, whatever they happen to be.
D. Therefore, the “principles of justice” are whichever principles would be so 
chosen, i.e. would be chosen to guide social criticism of the basic structure of 
society from a position of equality (i.e., in the original position, behind the 
veil of ignorance.)

III. Rawls’s Two Principles of Justice

A. Their content
1. Equal basic liberty principle:  Everyone has certain basic rights: right to 
life, equal political participation, free speech, free thought, and right to 
acquire property (but not unrestricted, as libertarianism holds).
2. Difference principle:  other benefits and burdens (e.g. wealth) must be 
distributed so that they work to the greatest advantage of the least 
advantaged.  (I.e., the minimum position must be maximized)
B. Rawls’s argument that his two principles, rather than either libertarianism or 
utilitarianism would be chosen from the original position.