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To the extent that a theory of justice is complete, it must apply equally to each citizen within a particular society. Arbitrary principle cannot serve as a guide to who is incorporated into, or left out of, a society’s conception of justice. Therefore, it seems relevant to ask, when a theory of justice is being considered, to whom the theory applies if not all persons. However, simply restricting the scope of a theory of justice to all existing persons builds to a number of potential problems, namely the problem of intergenerational justice (or, in other words, the justice obligations that persons have to members of future generations).
In John Rawls’ theory of justice as fairness, the issue of intergenerational justice serves a central role in determining what constitutes justice.
Moreover, because Rawls intends his structure of justice to be a practical account of justice, he is understandably conscious of how future generations sustain the original position.
Although Rawls adequately addresses obligations to future generations, the responsibilities society has toward children receive an incomplete attention that ultimately weakens the legitimacy of the original position. The original position is a heuristic device Rawls introduces in order to determine what foundational principles of justice will govern society. Rather than operating within the perspective of a single person, the original position incorporates the opinions of multiple contractors, each seeking to maximize the welfare of society (Rawls, PL, 259). Set in the context of the contractarian tradition, Rawls assumes that the contractors in the original position are fully rational, self-interested adults, so that the parties have the appropriate capacities to conduct their deliberations.
If the original position is only valid if actually carried out, only adults are capable of carrying out the conditions and stipulations of the agreement. This excludes children, who lack the capacity to reason (Rawls, TOJ, 249). On this account, the concept of “justice as fairness” is open to dispute by children, who are decidedly absent from the original position. An important distinction exists between children and future generations, particularly with respect to the justice-obligations to which the contractors are committed. When one speaks of “future generations” in the context of the original position, this is not in reference to children who exist today or at future times. Rather, members of future generations are fully rational adults capable of deliberating over the social contract (Rawls, TOJ, 138). As a result, in the first formulation of the original position, children receive no direct representation from the contractors.
Thus, while a theory of justice as fairness may adequately explain a motivation of one generation to justly save for subsequent generations, such a theory does not necessarily account for the interests of presently-existing children, who are regarded neither as fully rational agents of the present nor as the fully rational agents of future generations. According to Rawls, even though children stand absent from the original position, the rational, self-interested contractors arguing behind the veil of ignorance possess justice-based obligations to members of future generations. These justice-based obligations exist not only in the simplifying assumption of a timeless world, but also in the cross-generational context in which actual human beings live. Rational contractors upset this context and expectation when they choose not to save for subsequent generations.
Respect for the future of society allows for principles set forth in the original position to be carried forth, but only if a foundation for those principles is still intact. The resources that allow these principles to be exercised by a subsequent generation must be guaranteed by a principle of just saving that permits each generation to have equal opportunity for prosperity (Rawls, TOJ, 289). Knowing that the contractors in the original position are trusted to develop the principles of justice that apply to all people and at all times, it is necessary for those contractors to represent the interests of people through time. Part of Rawls’ concept of the original position is the veil of ignorance, which refers to a purposive ignorance of one’s social status, race, gender, and so on. The contractors in the original position operate behind this veil and thus are unable to choose principles specially tailored to his or her advantage (Rawls, TOJ, 139).
However, as Rawls states explicitly, the veil of ignorance fails to secure justice for all persons because it is insufficient to maintain a concern for future generations (Rawls, TOJ, 140). Assuming the present time of entry interpretation, the contractors in the original position realize they are all contemporaries (of a single generation) in this arrangement (Rawls, TOJ, 140, 292). With regard to this realization, Rawls identifies the problem as a lack of duty to the future members of one’s society and, given the priority the contractors will naturally give to their contemporary society, there is no guarantee they will save for posterity. To ensure saving for posterity, Rawls introduces a principle that prompts contemporaries in the original position to account for the needs of future generations (Rawls, TOJ, 288). Even though the contractors know they all are all contemporaries, they are nonetheless ignorant of what era they live in.
As a result, it is rational for them to agree to a principle of just savings in order to adjust the quantity of resources that one generation should reserve for subsequent generations. Just savings is coherent with the second principle of justice, the “equality principle,” which Rawls believes will cause the contractors to agree that social and economic inequalities are to be arranged so that they are to the greatest benefit of the least advantaged, which is consistent with the just savings principle (Meyers 2004, 119). The equality principle represents justice obligations for future generations that are in accord with the rational interests of the contractors and harmonious with the just savings principle. While Rawls appeals to the rational interests of the contractors in the original position, he modifies the motive of self-interest with respect to future generations by re-characterizing the individuals in the original position as heads of families (Rawls, TOJ, 292).
With sentimental ties to subsequent generations, the parties in the original positions no longer merely represent their selves alone, but also the interests of subsequent generations of kin. Rawls clarifies this assumption in response to the argument that people have no bonds of love or affection with indefinite future persons and no community connection or sense of belonging with future generations (Care 1982, 195). Yet if the contractors in the original position are heads of families, or representatives of family lines, they are responsible for generations of individuals by virtue of that relationship. Behind the veil of ignorance, the contractors retain no knowledge of whether they indeed possess a family line, which makes it conceivably both rational and a matter of self interest to choose principles that provide for and ensure an application of the just savings principle for future generations. While this is thought to satisfy the need for justice for both children and future generations, only members of future generations seem to benefit from an arrangement of just savings in this situation. The heads of family assumption in the original position is an ad hoc notion that secures only intergenerational justice (Evers 1978, 110).
The thought that contractors will change their decisions based on the possibility of a family line fails to address justice for children. The hypothesis only limits the scope of theory of justice by removing the principles of justice from the proper representation and protection of children. The contractors within the original position, even if they know there is the possibility of a family line, still have no rational, self-interested reason to discuss intra-familial justice or the right way to raise a family because doing so may restrict their power over the family’s affairs once the veil is lifted. Irrespective of whether some of these heads of family are benevolent toward their children, Rawls’ solution provides no way of mending the injustices caused by malevolent heads of families.
Additionally, applying the principles of justice within the family is impractical because this new assumption bases justice-obligation to children on ties of sentiment, rather than the rational self-interest involved in every other aspect of the original position. To the extent that affection and intuitions are left as the governing principles of family justice, Rawls leaves the family impervious to the rational laws and principles of justice that direct the remainder of society (Rawls, JAF, 165). Given that violence committed against children is most likely to occur at the hands of a family member, there seems to be a more urgent obligation to help children, even from those individuals who are supposedly looking out for their interests (Wright and Leroux 1991). As persons, children are deserving of the same kind of protection from unjust treatment as adults, and any society incapable of this protection is unjust. This lack of protection is brought out by the belief that families, or heads of families, have a moral aversion to putting their children in harm’s way.
Regardless, if it were a necessary fact that heads of families care affectionately about their children, there would be no need to discuss the protection of children in the context of a theory of justice. In response to criticism, Rawls revised the heads of families assumption about the contractors in the original position by means of re-characterizing them instead as “our representatives” (Rawls, PL, 305). This is meant to clarify the role of the contractors as people who are desirous of the best ends for all individuals, not just families. These representatives need not possess ties of sentiment to their family’s descendants or the descendants of the families they represent. Instead, the representatives must only choose a principle of justice savings they would have liked previous generations to adopt (Rawls, PL, 274).
Given the contractors in the original position are conceivably unaware of generation to which they belong, such a solution seems to overcome the problems associated with the heads of families assumption. Nevertheless, simply changing the contractors from “heads of families” to “representatives” seems to provide nothing more than a semantic adjustment to the family orientation of the original position heuristic. Although Rawls seemingly addresses the objections to his first assumption, he has done so only with respect to obligations to future generations of fully rational adults. Children, who belong to the present generation neither as fully rational adults nor to a future generation of fully rational adults, remain without representation inside the original position. Under the thought that the contractors in the original position are representatives of individuals, as opposed to families, the problem of neglected children remains without an objective solution. Once again, Rawls’ conception of the original position conceptually removes children from representing themselves, considering that adult contractors in the original position see no benefit in making agreements with children. For one, children offer nothing beyond what adults can provide, and secondly, irrational and behaviorally unpredictable children are incapable of carrying out the contract agreed to, by virtue of the fact that agreements made by irrational agents do not have much weight. Without argument, Rawls offers the assumption that contractors come into existence “during the age of reason” (Rawls, TOJ, 146).
The supposition of reason ensures each contractor is an adult when the veil is lifted. Because every person in the original position is aware of this, one possesses at least some information about his background, namely that he is an adult; consequently, it cannot be truly said, “no one knows his situation in society” (Rawls, TOJ, 139). If one modifies or removes the “age of reason” assumption offered by Rawls, the consequence is that the contractors must take into account not only the interests of the adults they represent, but also teenagers, children, elderly adults, and other persons incapacitated in some way. This new representative focus necessarily takes into account the whole spectrum of a human life. Designed to address economic and social inequities between members of the same community, the original position should logically extend not only to an isolated time-slice of individuals, but to the whole of their existence, which includes their childhood.
Thought of in this light, this whole-life perspective of the original position reflects the initial motivations behind the concept: namely to distribute justice in such a way as to minimize the disadvantage of society’s least well off. Under the heads of family assumption, an inclusive perspective on human existence would have been impossible. With a revision to “representatives” as opposed to individual selves, children’s interests seem to be accounted for by the contractors. Such an alternative sets out two requirements. The first requirement is that the adult contractors are able to consider what a child wants, but to do so hypothetically using the reasoning capacity of an adult. The second requirement states that representatives are justified in making choices on behalf of children in a paternalistic manner and that paternalistic representation does not undermine the rights of children. With regard to the first requirement, an adult could intuitively emphasize with a child in order to understand what he or she wants. Still, the adult should consider only the interest of the child, not to reason as if were one a child.
Even if reasoning as a child were possible, it would be counterproductive considering the necessity of having all-rational representatives in the original position. For that reason, the contractor in the original position is limited to simply viewing himself, given his lack of knowledge, as a potential representative of an irrational child, but constrained to arguing for that child in rational deliberations that seek that child’s best interests. Despite the representative’s responsibility to pursue the interests of a child, one should note that no one where in this process is there an actual child. In fact, the only interests promoted are interests of a hypothetical child in the mind of an adult, which denotes a policy of paternalism. Rawls speaks to the importance of paternalism by affirming that others “are authorized and sometimes required to act on our behalf” (Rawls, TOJ, 249), which is an important piece of Rawls’ search for a general principle to manage cases of feeble-mindedness (such as in children and elderly adults) or incapacitation (such as in coma victims).
Rawls decides on a general principle that reflects the will of individuals, namely that “we must choose for others as we have reason to believe they would choose for themselves if they were of the age of reason and deciding rationally” (Rawls, TOJ, 249). In other words, an individual’s liberty may be restricted if the choice was not rational, and the choice would have been different if the individual had been rational. For children who are not of the age of reason, this implies that children have a very limited scope of liberties. In addition, the general principle implies that children, if they were rational adults, would agree to this severe restriction of liberty. Yet such an assumption is not necessarily true for even rational persons. Although the idea of representatives appealing paternalistically to the hypothetical interests of children was initially appealing, it is abhorrent that actual children ought to have no rights while the representatives in the original position make crucial decisions on the behalf of nonexistent children.
Once again, the Rawlsian framework for securing the interests of children fails because of a lack of true representation. Robert MacDougall has demonstrated that the bioethical consequences of this Rawlsian paternalism is objectionable, insofar as Jehovah’s Witnesses may refuse life-saving blood transfusions for their children, even when doing so could end that child’s life. Allowing the child’s representative to reject a medical treatment “is required by the strict hierarchy of the principles of justice,” which reflects the fundamental implications of a theory that allows representatives to act on behalf of children in idealized circumstances (MacDougall 2010, 153). Rawls’ notion of providing for the general will of children must also answer the question of how one non-arbitrarily differentiates between rational and non-rational decisions as children develop into adults.
To act paternalistically on behalf of some person, when he is already making rational decisions for himself, is a matter of injustice. Without providing a sound theoretical argument for why a universal principle for dealing with non-rational agents is necessary, this practical problem of arbitrary distinctions between individuals leads to the refutation of that alleged need for a general theory. Rawls’ discussion revolves around a perceived necessity for an all-encompassing theory that situates the contract in ideal circumstances, which excludes the possibility that individual persons may produce their own private contracts for different sorts of feeble-mindedness under different circumstances and at different times of their lives. Instead, the responsibility of this contracting is given solely to the representatives in the original position, and individuals in reality receive no part, due to the fact that they actually exist and may “tailor principles” to their own advantage. At least in the case of children, there is no means of providing a comprehensive, non-arbitrary theory of will for representation in the original position.
Thus, as opposed to trying to develop elaborate schema for ensuring comprehensive, non-arbitrary representation, one ought simply to recognize the right of parents, by virtue of a special relationship to their children, to custody over their children. In this relationship, while the children live on their parents’ property, it is the responsibility of the parents to determine the conditions of the private contractual agreement (for example, setting rules about permission to use the family property). However, the contractors in the original position still need to treat all persons in society equally (Rawls, JAF, 11). That is, physical abuse of a child is as much a violation of a child’s fundamental right as physical assault of an adult is a violation an adult’s fundamental right. On this view of a child’s rights, there is no general principle of paternalism that needs to decide principles of justice on behalf of children. In its place are numerous private contracts within families that, despite being arranged and carried out within the family, are subject to the laws and principles of justice set in the original position. The theory of justice as fairness and the original position proposed by John Rawls systematically fails to account for the interests of children.
An inability to address questions of justice for society’s most vulnerable people should call into question the applicability of a theory whose ultimate goal is to maximize the good for society’s disadvantaged. Even though the theory fails its children, one might argue that it needs not a Rawlsian general principle to protect children. If a society follows the liberty principle and allows individual guardians to set the terms of the contract with their children, and creates laws that protect adults and children equally as the veil of ignorance dictates, the theory of justice as fairness will accomplish what it set out to achieve. By trusting individuals to look after their own children, with side-constraints on that right, members of the society can protect young people with an unparalleled sense of duty and commitment within the context of a general social contract.
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