A theory of Justice: Revised Edition

Nomos IX: Equality,
ed. J. R. Pennock and J. W. Chapman (New York, Atherton Press,
1967), pp. 62–64, 66–68; and W. K. Frankena, “Some Beliefs about Justice” (The Lindley Lecture,
The University of Kansas, 1966), pp. 16f.
444
The Sense of Justice

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of justice. But the description of the parties in the original position iden-
tifies such a property, and the principles of justice assure us that any
variations in ability within the range are to be regarded as any other
natural asset. There is no obstacle to thinking that a natural capacity
constitutes the basis of equality.
How then can it seem plausible that founding equality on natural
attributes undermines equal justice? The notion of a range property is too
obvious to be overlooked. There must be a deeper explanation. The an-
swer, I think, is that a teleological theory is often taken for granted. Thus,
if the right is to maximize the net balance of satisfaction, say, then rights
and duties are to be assigned so as to achieve this end. Among the
relevant aspects of the problem are men’s different productive skills and
capacities for satisfaction. It may happen that maximizing aggregate wel-
fare requires adjusting basic rights to variations in these features. Of
course, given the standard utilitarian assumptions, there is a tendency to
equality. The relevant thing, however, is that in either case the correct
natural basis and the appropriate assignment of rights depends upon the
principle of utility. It is the content of the ethical doctrine, and the fact
that it is a maximizing notion, that allows variations in capacity to justify
unequal fundamental rights, and not the idea that equality is founded on
natural attributes. An examination of perfectionism would, I believe, lead
to the same conclusion. But justice as fairness is not a maximizing theory.
We are not directed to look for differences in natural features that affect
some maximand and therefore serve as possible grounds for different
grades of citizenship. Although agreeing with many teleological theo-
ries in the relevance of natural attributes, the contract view needs much
weaker assumptions about their distribution to establish equal rights. It is
enough that a certain minimum is generally fulfilled.
Several further points should be noted briefly. First, the conception of
moral personality and the required minimum may often prove trouble-
some. While many concepts are vague to some degree, that of moral
personality is likely to be especially so. But these matters are, I think, best
discussed in the context of definite moral problems. The nature of the
specific issue and the structure of the available general facts may suggest
a fruitful way to settle them. In any case, one must not confuse the
vagueness of a conception of justice with the thesis that basic rights
should vary with natural capacity.
I have said that the minimal requirements defining moral personality
refer to a capacity and not to the realization of it. A being that has this
capacity, whether or not it is yet developed, is to receive the full protec-
445
77. The Basis of Equality

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tion of the principles of justice. Since infants and children are thought to
have basic rights (normally exercised on their behalf by parents and
guardians), this interpretation of the requisite conditions seems necessary
to match our considered judgments. Moreover, regarding the potentiality
as sufficient accords with the hypothetical nature of the original position,
and with the idea that as far as possible the choice of principles should
not be influenced by arbitrary contingencies. Therefore it is reasonable to
say that those who could take part in the initial agreement, were it not for
fortuitous circumstances, are assured equal justice.
Now of course none of this is literally argument. I have not set out the
premises from which this conclusion follows, as I have tried to do, albeit
not very rigorously, with the choice of conceptions of justice in the
original position. Nor have I tried to prove that the characterization of the