A theory of Justice: Revised Edition

The Calculus of Consent
(Ann Arbor, University of Michigan
Press, 1963). The idea of the four-stage sequence is part of a moral theory, and does not belong to an
account of the working of actual constitutions, except insofar as political agents are influenced by the
conception of justice in question. In the contract doctrine, the principles of justice have already been
agreed to, and our problem is to formulate a schema that will assist us in applying them. The aim is
to characterize a just constitution and not to ascertain which sort of constitution would be adopted, or
acquiesced in, under more or less realistic (though simplified) assumptions about political life, much
less on individualistic assumptions of the kind characteristic of economic theory.
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31. The Four-Stage Sequence

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requires a knowledge of the beliefs and interests that men in the system
are liable to have and of the political tactics that they will find it rational
to use given their circumstances. The delegates are assumed, then, to
know these things. Provided they have no information about particular
individuals including themselves, the idea of the original position is not
affected.
In framing a just constitution I assume that the two principles of justice
already chosen define an independent standard of the desired outcome. If
there is no such standard, the problem of constitutional design is not well
posed, for this decision is made by running through the feasible just
constitutions (given, say, by enumeration on the basis of social theory)
looking for the one that in the existing circumstances will most probably
result in effective and just social arrangements. Now at this point we
come to the legislative stage, to take the next step in the sequence. The
justice of laws and policies is to be assessed from this perspective. Pro-
posed bills are judged from the position of a representative legislator
who, as always, does not know the particulars about himself. Statutes
must satisfy not only the principles of justice but whatever limits are laid
down in the constitution. By moving back and forth between the stages of
the constitutional convention and the legislature, the best constitution is
found.
Now the question whether legislation is just or unjust, especially in
connection with economic and social policies, is commonly subject to
reasonable differences of opinion. In these cases judgment frequently de-
pends upon speculative political and economic doctrines and upon social
theory generally. Often the best that we can say of a law or policy is that
it is at least not clearly unjust. The application of the difference principle
in a precise way normally requires more information than we can expect
to have and, in any case, more than the application of the first principle. It
is often perfectly plain and evident when the equal liberties are violated.
These violations are not only unjust but can be clearly seen to be unjust:
the injustice is manifest in the public structure of institutions. But this
state of affairs is comparatively rare with social and economic policies
regulated by the difference principle.
I imagine then a division of labor between stages in which each deals
with different questions of social justice. This division roughly corre-
sponds to the two parts of the basic structure. The first principle of equal
liberty is the primary standard for the constitutional convention. Its main
requirements are that the fundamental liberties of the person and liberty
of conscience and freedom of thought be protected and that the political
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process as a whole be a just procedure. Thus the constitution establishes a
secure common status of equal citizenship and realizes political justice.
The second principle comes into play at the stage of the legislature. It
dictates that social and economic policies be aimed at maximizing the
long-term expectations of the least advantaged under conditions of fair
equality of opportunity, subject to the equal liberties being maintained. At
this point the full range of general economic and social facts is brought to
bear. The second part of the basic structure contains the distinctions and
hierarchies of political, economic, and social forms which are necessary
for efficient and mutually beneficial social cooperation. Thus the priority
of the first principle of justice to the second is reflected in the priority of
the constitutional convention to the legislative stage.
The last stage is that of the application of rules to particular cases by
judges and administrators, and the following of rules by citizens gener-
ally. At this stage everyone has complete access to all the facts. No limits
on knowledge remain since the full system of rules has now been adopted
and applies to persons in virtue of their characteristics and circumstances.
However, it is not from this standpoint that we are to decide the grounds
and limits of political duty and obligation. This third type of problem
belongs to partial compliance theory, and its principles are discussed
from the point of view of the original position after those of ideal theory
have been chosen (§39). Once these are on hand, we can view our par-
ticular situation from the perspective of the last stage, as for example in
the cases of civil disobedience and conscientious refusal (§§57–59).
The availability of knowledge in the four-stage sequence is roughly as
follows. Let us distinguish between three kinds of facts: the first princi-
ples of social theory (and other theories when relevant) and their conse-
quences; general facts about society, such as its size and level of eco-
nomic advance, its institutional structure and natural environment, and so
on; and finally, particular facts about individuals such as their social
position, natural attributes, and peculiar interests. In the original position
the only particular facts known to the parties are those that can be inferred
from the circumstances of justice. While they know the first principles of
social theory, the course of history is closed to them; they have no infor-
mation about how often society has taken this or that form, or which
kinds of societies presently exist. In the next stages, however, the general
facts about their society are made available to them but not the particu-
larities of their own condition. Limitations on knowledge can be relaxed
since the principles of justice are already chosen. The flow of information
is determined at each stage by what is required in order to apply these
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31. The Four-Stage Sequence

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principles intelligently to the kind of question of justice at hand, while at
the same time any knowledge that is likely to give rise to bias and
distortion and to set men against one another is ruled out. The notion of
the rational and impartial application of principles defines the kind of
knowledge that is admissible. At the last stage, clearly, there are no rea-
sons for the veil of ignorance in any form, and all restrictions are lifted.
It is essential to keep in mind that the four-stage sequence is a device
for applying the principles of justice. This scheme is part of the theory of
justice as fairness and not an account of how constitutional conventions
and legislatures actually proceed. It sets out a series of points of view
from which the different problems of justice are to be settled, each point
of view inheriting the constraints adopted at the preceding stages. Thus a
just constitution is one that rational delegates subject to the restrictions of
the second stage would adopt for their society. And similarly just laws
and policies are those that would be enacted at the legislative stage. Of
course, this test is often indeterminate: it is not always clear which of
several constitutions, or economic and social arrangements, would be
chosen. But when this is so, justice is to that extent likewise indetermi-
nate. Institutions within the permitted range are equally just, meaning that
they could be chosen; they are compatible with all the constraints of the
theory. Thus on many questions of social and economic policy we must
fall back upon a notion of quasi-pure procedural justice: laws and policies
are just provided that they lie within the allowed range, and the legisla-
ture, in ways authorized by a just constitution, has in fact enacted them.
This indeterminacy in the theory of justice is not in itself a defect. It is
what we should expect. Justice as fairness will prove a worthwhile theory
if it defines the range of justice more in accordance with our considered
judgments than do existing theories, and if it singles out with greater
sharpness the graver wrongs a society should avoid.
32. THE CONCEPT OF LIBERTY
32. The Concept of Liberty
In discussing the application of the first principle of justice I shall try to
bypass the dispute about the meaning of liberty that has so often troubled
this topic. The controversy between the proponents of negative and posi-
tive liberty as to how freedom should be defined is one I shall leave aside.
I believe that for the most part this debate is not concerned with defini-
tions at all, but rather with the relative values of the several liberties when
they come into conflict. Thus one might want to maintain, as Constant
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did, that the so-called liberty of the moderns is of greater value than the
liberty of the ancients. While both sorts of freedom are deeply rooted in
human aspirations, freedom of thought and liberty of conscience, free-
dom of the person and the civil liberties, ought not to be sacrificed to
political liberty, to the freedom to participate equally in political affairs.
3
This question is clearly one of substantive political philosophy, and a
theory of right and justice is required to answer it. Questions of definition
can have at best but an ancillary role.
Therefore I shall simply assume that any liberty can be explained by a
reference to three items: the agents who are free, the restrictions or
limitations which they are free from, and what it is that they are free to do
or not to do. Complete explanations of liberty provide the relevant infor-
mation about these three things.
4
Very often certain matters are clear from
the context and a full explanation is unnecessary. The general description
of a liberty, then, has the following form: this or that person (or persons)
is free (or not free) from this or that constraint (or set of constraints) to do
(or not to do) so and so. Associations as well as natural persons may be
free or not free, and constraints may range from duties and prohibitions
defined by law to the coercive influences arising from public opinion and
social pressure. For the most part I shall discuss liberty in connection
with constitutional and legal restrictions. In these cases liberty is a certain
structure of institutions, a certain system of public rules defining rights
and duties. Set in this background, persons are at liberty to do something
when they are free from certain constraints either to do it or not to do
it and when their doing it or not doing it is protected from interference
by other persons. If, for example, we consider liberty of conscience as
defined by law, then individuals have this basic liberty when they are free
to pursue their moral, philosophical, or religious interests without legal
restrictions requiring them to engage or not to engage in any particular
form of religious or other practice, and when other men have a legal duty
not to interfere. A rather intricate complex of rights and duties charac-
terizes any particular basic liberty. Not only must it be permissible for
3. See Constant’s essay