Why Does Rawls Modify Standard Social Contract Theory

The Enlightenment is mainly identified with its political achievements. The era was marked by three political revolutions that together formed the basis of modern republican constitutional democracies: the English Revolution (1688), the American Revolution (1775-83), and the French Revolution (1789-99). Success in explaining and understanding the natural world encourages the Enlightenment project to reshape the social/political world in accordance with the true patterns we are supposed to find in our reason. Enlightenment philosophers note that existing social and political orders do not stand up to critical scrutiny; They note that the existing political and social authority is shrouded in religious myths and mysteries and rests on obscure traditions. The negative work of criticizing existing institutions is complemented by the positive work of theoretical construction of the model of institutions as it should be. We owe to this period the basic model of government, which is based on the consent of the governed; the articulation of the political ideals of freedom and equality and the theory of their institutional realization; the elaboration of a list of individual fundamental human rights to be respected and implemented by any legitimate political system; articulating and promoting tolerance of religious diversity as a virtue to be respected in a well-ordered society; the conception of basic political powers as organized in a system of checks and balances; and other features now familiar to Western democracies. Rawls admits that «mixed ideas are much more difficult to argue than the utility principle» because «strong arguments of freedom cannot be used as before» (TJ, 316/278 rev.). He discusses mixed concepts in Theory, §49, and later devotes more attention to them in Justice as Fairness: A Restatement (§§ 34-38). Rawls cites several considerations or «reasons» that should lead the parties in the original position to agree on the principle of difference — publicity, stability and reciprocity — and he adds several more specific arguments against the choice of the principle of limited utility (TJ § 49; JF § 38). His argument (TJ § 29) has already been mentioned that the principle of difference affirms the self-respect of the less fortunate since, unlike the principle of utility, it treats them as an end in itself and not as a means to ensure the greater well-being of the beneficiaries.

Although still relevant, the power of this argument of self-respect is not as strong when the principle of difference is compared to a principle of limited utility that guarantees a social minimum. A second implication of a retributivist theory of criminal law is that penalties must be earned and that, therefore, criminal sanctions should be reserved for intentional misconduct. This simplistic idea has various consequences. For example, he suggests that any crime must be based on wilful misconduct – and that, therefore, no-fault liability offences have no place in criminal law. Another set of implications concerns defence; A retributivist conception of criminal law implies that any defence that denies guilt of the crime must be recognized. Given the long-standing and widespread influence of social contract theory, it is not surprising that it is also the subject of many critiques from different philosophical perspectives. In particular, racially conscious feminists and philosophers have made important arguments for the substance and feasibility of social contract theory. The condition of publicity stipulates that the parties must assume that the principles of justice they have chosen will be publicly known to the members of society and recognized by them as the basis of their social cooperation. This implies that people are not misinformed or have false beliefs about the foundations of their social and political relationships. There must be no «noble lies,» false ideologies, or «fake news» that obscure a society`s principles of justice. For Rawls, the publicity of the principles of justice is ultimately a condition for respecting persons as free and equal legal persons.

Rawls believes that in a democratic society, individuals should know the basics of their social and political relationships and not be deceived about them in order to cooperate and live together under fair conditions. This condition plays an important role in Rawls` arguments against utilitarianism and other consequentialist conceptions. The idea of the public sphere is further developed in political liberalism through the ideas of public justification and the role of public reason in political deliberation.