The theory further presupposes that the parties in the original position are equal. The concept of such equality is based on the possession of each person of the same rights to the participation in the procedure of choosing principles. It is put forward that “human beings are equal as moral persons having a conception of their good and capable of a sense of justice (Rawls; 1971). ” However, such a contention is incomplete as, coupled with the veil of ignorance, men are assumed equal regardless of their stature in life.
Thus the proposed rational choice of preferring equal benefits to be derived from a chosen principle may not be gauged at all. Persons choosing would have no framework to base equitable benefit thereto. Morally, it is correct to adjudge men equal. However, it is the basic truth that, in life, such equality is not evident. There are those who have more in life and those who have less. This is the very reason why systems such as the law are put in place, for there to be no discrimination on the basis of economic, moral, or physical differences.
It is only with the consideration of the vast spectrum of differences observable in people in a given community that true, rational, justifiable choices may be made. Not only this, but it should be borne in mind that there are inherent inequalities in society itself. It cannot be argued that simply because choices are made to equally distribute rights and duties there will be equivalent or substantial benefit to each party to the contract. Such is not the case.
The theory thinks too much within the confines of a controlled space and an airtight box. The institutions for example that are put in place in society, apart from being just in derivation, would naturally take on a different character once held by individuals with personal biases. Even with a set of principles in place as provided in contract, individuals in position in society would be able to use their positions in order to increase their benefit and in order to better exercise their rights.
Most times, even to the disadvantage or the detriment of rights of others. Furthermore, the theory has no application in real life because of the inherent imbalance amongst persons. First, there is an imbalance as regards the abilities and skills of individuals. Thus, given a particular situation, individuals would respond differently leading to the greater or lesser benefit for the individual. More importantly, there is an imbalance with regard to the power distribution and the hierarchy in society.
The theory fails to take into account the inherent injustice in societal structure and simplistically argues that such structures, if agreed upon, would be considered just. Yet it is already evident in our cultures and societies that even with the regulated control of rights and the fight to maintain equality among persons, there are built-in inequalities which hinder less advantaged persons from achieving the maximum potential of their rights or their shares, or the free exercise of their benefits. Conclusion The theory of justice is one of ideal standards.
Yet in it's attempt to reach its idyllic goal, it failed to account for a rational process or a practical solution. The lofty ideas set forth by Rawls may certainly have application in ethics and in study but they have limited application outside of theory. It might even be argued that the very essence of the theory as a contract is baseless. For it is this through the mutual agreement and the voluntary consent to the terms of the contract that Rawls enforces the principles reached by society, expressly or impliedly.
However, such concurrence by all members of society to one particular set of standards is practically impossible. Particularly so considering that Rawls sets a rigid standard by not settling for a mere majority but insisting on a totality. Furthermore, it cannot be escaped from that the contract's effectivity would have hold only insofar as it applies to the generation that contracted it. Yet for future generations there is no consent asked. The principles chosen by the pioneer parties are thus effectively passed on and retained.
Yet the binding nature of such a contract absent the consent of its parties is rendered nugatory. Not only this, but regulatory institutions themselves impose rules and regulations purportedly for the benefit of all and for the protection of their rights. However, these rules and regulations are not decided upon by the concurrence of the society as a whole. Rather, they are dictated upon the members of society by the officials and offices that enact them.
What is of note, is that certain mandates from societal institutions go so far as to dictate what may be deemed as right or wrong. The theory completely ignores such an oligarchy in principle formulation and choice. It can thus be seen that albeit a much celebrated theory of justice, the justice as projected by Rawls is one that has no place in present society. The logic in itself of the foundational concepts of the theory are found wanting and largely contradictory. It may reasonably be held that the accepted norms and laws of society bind its members into compliance.
However, it is not seen that the compliance is borne out of a voluntary agreement to the rules. Rather it is most likely borne out of an apprehension against or respect for the implementing authorities. There is also no showing that such norms and laws were put in place in order to ensure equality amongst men nor that they were enacted to implement benefit for all. The best that can be hoped is that they benefit most or that they benefit the least.
Rawls, J. (1971). A Theory of Justice. Cambridge: Harvard University Press.