COURSE: LAW & JUSTICE IN A

GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: JOHN RAWLS‟ DISTRIBUTIVE
ODISHA JUSTICE (WEEK 4)
INSTRUCTOR(S): PROF. RAO

RAWLS’ CONCEPT OF REFLECTIVE EQUILIBRIUM AND LEGAL

ASPECTS

Rawls‟s idea of social justice is one essentially rooted in the idea of the social contract. “The
guiding idea”, as written by Rawls “is that the principles of justice for the basic structure of
the society are the object of the original agreement. They are the principles that free and
rational persons concerned to further their own interests would accept in an initial position of
equality as defining the fundamental terms of their association.”1 Thus, Rawls further
contends that these set principles would govern all further agreements and specify the kinds
of social cooperation that can be entered into and the forms of government that can be
established. This proposition, Rawls believed, is the essence of Justice is fairness.2 Rawls
argues that one must first distinguish between people‟s genuine judgements about justice and
their subjective, self-centred views. When we do so, it becomes plain that the position that
would be adopted by a neutral outsider concerning what is just is likely to be fairer than the
assessments made by the parties who have vested interests in the outcome.

Once those objective criteria of fairness have been arrived at, then one is to measure that
against their own judgments, and the inescapable distinction between the two judgements
ought to be corrected by modifying the individual‟s judgment in such a way that it comes
closer to the objective standards of fairness of the hypothetical outsider. This is basically the
concept of Reflective Equilibrium.

Much of Rawls's book is about a detailed comparison of rival theories of justice, and
especially his critic on utilitarianism. He uses these concepts to argue in support of his two
principles of justice is largely resting on the „reflective equilibrium method'. The implications
of two principles and of rival theories in this methodological approach are contrasted with
reference to our own inherent considered judgments about specific issues (for example
slavery is wrong). Now if the implications of the general theory of justice contradict these
considered judgments, then there can be two alternatives, a) to reformulate the general theory
or b) to reformulate the considered judgment, and after each modification or rejection test

1
F Michelman , READING RAWLS (Norman Daniels Daniels ed., 1989).
2
Raymond Wacks, UNDERSTANDING JURISPRUDENCE (Oxford University Press, 2012) 222.
 COURSE: LAW & JUSTICE IN A
GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: JOHN RAWLS‟ DISTRIBUTIVE
ODISHA JUSTICE (WEEK 4)
INSTRUCTOR(S): PROF. RAO

them against each other. During such shuttling of back-and-forth what emerges is „Reflective
equilibrium' or coherence between the general theory of justice ( in the above-mentioned case
the two principles) and the individual's moral choice making or considered judgments. The
core value this is the Rawlsian treatise of justice is that there must be coherence between
one's theory of what is justice, and one's a particular view about the justice of specific
arrangements.

NATIONAL LEGAL SERVICES AUTHORITY V UNION OF INDIA3

In this landmark case concerning the legal recognition of gender of the transgender people,
and if non-conformity to clearly identifying oneself as male or female was in contradiction to
the Constitution of India, in the absence of previous law regarding the civil and political
rights of the transgender people, the court had held noting that the diverse transgender
community has faced great disadvantage and prejudice in India since the 18th Century, and
stating an individual's gender identity to be an integral part of their personal identity, and a
basic aspect of dignity, freedom and self-determination , declared that the transgender people
have the right to be treated as a „third gender‟ and also in other cases determine their own
self-identified gender, while also addressing the issues of the several socio-economic
discrimination faced by the people of this gender in terms of health services, access to
education and employment, and general access opportunities to public places.

Justice K.S Radhakrishnan, speaking on behalf of the court noted in paragraph 127 of the
judgment, talking of the justice of treating equals equally, remarked saying while Aristotle
had been the first to opine that the ends of justice can only be met when equals are treated
equally and unequal unequally and the most important assumption that has been made is that
all humans have equal value and thus ought to be treated equally by equal laws as expressed
in the Rawlsian idea of „reflective equilibrium'.

This comparative approach of comparing individual moral ethics to the societal standards
constantly to find a coherent meeting point between the two- forms the cornerstone of the
idea of „justice as fairness‟. In Rawls proposes a number of model institutions. He also
emphasizes certain „considered judgments‟, which he believes most individuals in most

3
(2014) 5 SCC 438.
 COURSE: LAW & JUSTICE IN A
GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: JOHN RAWLS‟ DISTRIBUTIVE
ODISHA JUSTICE (WEEK 4)
INSTRUCTOR(S): PROF. RAO

societies may accept and conform to. Rawls tried to formulate a set of principles which may
be universally applicable in a democratic society. Combining this notion with the theory of
distributive justice propounded by Amartya Sen brought the court in the given case to its
jurisprudential basis for not only recognizing the identities of the Transgender people but also
to do justice in trying to address their extreme vulnerability in the Indian Society.

NAVTEJ SINGH JOHAR V UNION OF INDIA4

In this most welcome judgment decriminalizing homosexuality in India, two of the

concurring judges – Justice RohintonNariman and Justice D. Y. Chandrachud referred to the
Rawlsian treatise on Justice.

Justice Nariman, talking about the recent developments in the Indian law that necessitated the
approach of the Supreme Court in decriminalizing consensual sex between homosexual
couples, referred to the case of Common Cause v Union of India5. In that case, dealing with
euthanasia, the Chief Justice of India, Justice Dipak Misra had said in paragraphs 167 and
168 of the said judgment- that Rawlsian Political liberalism focuses on the liberal concept of
choice making and thus in such context self-determination is understood as exercised through
the process of choosing.6 This respect for an individual human being and in particular how
such a person is to live their own lives is a question to be decided by the said persons'
individual autonomies and their right to self-determination.

Justice Chandrachud in his concurring judgment also refers to Rawls, in order to explain how
sexual choices are inherently an attribute of autonomy. The Rawlsian concept of the original
position, as we already learned, serves as a model to illustrate the concept of choice making
behind the „veil of ignorance‟, where mutually disinterested parties unaware of their own
social position make decisions on allotment of goods. In this situation, the decision reached
by the people in the original position would focus on a category of goods which an individual
would desire irrespective of his own individual understanding of what a „good' is or his own
social status. These neutral goods, which Rawls terms as the „primary social goods‟
encompass a bundle of rights, liberties, duties, opportunities, and the constituents of self-

4
AIR 2018 SC 4321.
5
(2018) 5 SCC 1.
6
John Rawls, POLITICAL LIBERALISM (Columbia University Press, New York) 32-33.
 COURSE: LAW & JUSTICE IN A
GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: JOHN RAWLS‟ DISTRIBUTIVE
ODISHA JUSTICE (WEEK 4)
INSTRUCTOR(S): PROF. RAO

respect. This kind of conception of self-respect establishes it as a primary human value

desired by all strata of humanity for themselves and for others. “In furtherance of the
Rawlsian notion of self-respect as a primary good, individuals must not be denied the
freedom to form relationships based on sexual intimacy,” writes Justice Chandrachud in
paragraph 67 of his concurring opinion in the Navtej Singh Johar judgment.

Thus Rawl's idea of autonomy and self-determination is expressed primarily through the
individual actions of choice making, again helped found not only the jurisprudential basis for
the Common Cause case, but the whole expanding realm of the right to privacy jurisprudence
and hence also a part of the jurisprudence that helped decriminalize consensual homosexual
intercourse in India according to justice Nariman, while to Justice Chandrachud, the theory
becomes an integral instrument to establish the idea of self-respect as not only the foundation
of autonomy but as a primary human value founded on an individual's ability to exercise their
native capacities in a competent manner.

REFERENCES

1. Catherine Audard, DEFENDING DEMOCRATIC EQUALITY: THE ARGUMENT FROM THE

ORIGINAL POSITION, IN JOHN RAWLS, (McGill-Queen‟s University Press, 2007).

2. F Michelman, READING RAWLS (Norman Daniels Daniels ed., 1989).
3. Raymond Wacks, UNDERSTANDING JURISPRUDENCE (Oxford University Press, 2012).
4. John Rawls, POLITICAL LIBERALISM (Columbia University Press, New York).
5. John Rawls, THE THEORY OF JUSTICE (1971)

SELF-ASSESSMENT QUESTIONS

1. Explain the Rawlsian idea of Justice as fairness.

2. How do Justice Nariman and Justice Chandrachud relate to John Rawls‟s Theory of
Justice in the case of Navtej Singh Johar v Union of India? Is this approach similar or
different from the approach taken by Justice Radhakrishnan in the NALSA case?
 COURSE: LAW & JUSTICE IN A
GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: JOHN RAWLS‟ DISTRIBUTIVE
ODISHA JUSTICE (WEEK 4)
INSTRUCTOR(S): PROF. RAO

THINKING EXERCISE

Try and conceptualize a society where everybody is truly under a veil of ignorance. Is such a society
truly egalitarian? Think and write about the pros and cons of living in such a society.