Rawls: Problem with the Veil of Ignorance and Invitation to Discussion about Scalia's Approach to Interpretation

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With this blog post, I aim to do two things: (1) to point to my dubiousness about the veil of ignorance that channels Henry's concerns and (2) to raise questions about Rawls' theory in the context of Scalia's A Matter of Interpretation. 

It is clear that the veil of ignorance is a key facet of Rawls' theory. After all, it is a tool by which the "original position" (11) is reached. Rawls describes the veil of ignorance as the hypothetical situation in which "no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets..." (11) More importantly, as Henry points out, the veil of ignorance prevents people from knowing "their conceptions of the good" (11). Because Henry has very eloquently stated many of my concerns in his post, I turn to a different avenue--to Rawls' distinctions between his and utilitarian theories. 

In pointing out the flaws of utilitarian theory, he claims that it is problematic that the impartial spectator's "use of sympathetic identification" (24) and the extrapolation of the spectator's discernments to all of society determine justice. He then states that unlike his theory of justice as fairness, "utilitarianism does not take seriously the distinction between persons" (24). I argue that through its dependence on the veil of ignorance, Rawls' theory also does not take seriously the distinction between persons in two ways.

First, Rawls assumes that people behind the veil of ignorance would agree on the two principles he explains later in Chapters I and II. While I acknowledge that Rawls establishes these principles as guidelines through which justice can and should be achieved, I argue that his assumption that all behind the veil are conducive to the assumption that there is in fact not much distinction between them. After all, the satisfaction of these principles leads to a shared understanding of justice, which then leads to similar actions and intentions in society. In a way, this conception of society closely resembles that of Rousseau through his general will. Second, as stated previously, the veil of ignorance prevents people from knowing "their conceptions of the good" (11). In addition to reducing the notion of man, this principle also weakens the distinctions between persons. People's varying conceptions of the good, as demonstrated through the plethora of philosophies of justice, differentiate people themselves. Therefore, it seems that the veil of ignorance only undermines this differentiation and thus Rawls' claim that his theory is different from the utilitarian theory in that regard.

I also want to bring attention to Rawls' discussion about formal justice. In this discussion, he claims: "One kind of injustice is the failure of judges and others in authority to adhere to the appropriate rules or interpretations thereof in deciding claims" (51). Upon reading this, I called upon Scalia's argument that statutory interpretation that is objective and rooted in the text is superior to that which is subjective. Scalia's argument reveals that there are varying perspectives (e.g. Living Constitution, originalism, etc.) on how statutes and the Constitution should be interpreted. How then, following Rawls' line of reasoning, do we determine which approach is "appropriate" (51)?

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