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Justice as Fairness and its relevance to the Israeli Society
Justice as Fairness and its relevance to the Israeli Society
Rawls J. 2001 Justice as Fairness, Cambridge, Massachusetts, Harvard University Press
A Review

M. Eliany © 2013

Abstract
Justice as fairness as discussed here is a political conception, which aims to reflect contemporary historical conditions in democratic societies. In this conception, free and equal citizens cooperate to enhance their common good and strike an agreement that is just and fair to reach this goal. This agreement takes the form of a social contract, often in the form of a constitution, allowing for reasonable pluralism between various and even conflicting groups, assuming they operate within an overlapping consensus (Rawls 2001: xi). Justice as fairness as a political conception excludes the superiority of any single conception and it is clearly distinguished from other comprehensive doctrines, whether religious, philosophical, or moral (Rawls 2001: xvi; p.84). As citizens in this conception aim to enhance their common good, they acknowledge that granted equal opportunities, it is reasonable for those who acquire knowledge and skills and who use them to enhance the common good to gain more benefits from their advantage (Rawls 2001: 14-18, 46-47, 174). However, it would not be reasonable if the system is structured in such a way that one group gains more advantages that another systematically and if no corrective measures are put in place to re-establish fairness in the system of cooperation (Rawls 2001: 18-24, 42-44, 50-51, 52-57, 74-75, 122-124). A fair system of cooperation in which citizens are free assumes that they maintain the right to consider and reassess what is just and what is good not only at an original point of time but overtime. The right of citizens to call for adjudication is essential to the process of maintaining a just and fair system overtime (Rawls 2001: pp. 21-24; p. 86).

A detailed discussion of justice as fairness as a political conception will follow, along with an examination as to how it applies to the Israeli society.

Justice as fairness as a political conception

Justice as fairness as discussed here aims to reflect contemporary historical conditions in democratic societies. In this conception, citizens cooperate to enhance their common good. As free and equal citizens they aim to strike an agreement that is just and fair. In a political liberalism context, this agreement takes the form of a social contract, allowing for reasonable pluralism between various and even conflicting groups, assuming they operate within an overlapping consensus (Rawls 2001: xi) In this sense, justice as fairness is a political conception. It excludes the superiority of any single conception and it is clearly distinguished from other comprehensive doctrines (i.e., religious, philosophical, or moral) (Rawls 2001: xvi; p.84).

Israel like any society faces a basic need to provide its citizens with a social order. Yet, in Biblical as well as in modern times, Israel faced divisions and conflicts that seem at times impossible to resolve on the basis of ‘a reasoned common ground for political agreement’.

Biblical editors recount the tale of Abraham the Hebrew who wandered from Aram Naharyim to Hebron to buy land (the Cave of Machpelah) from Ephron the Hittite. By the time of Jacob-Israel, Abraham’s grandson, Hebrew tribes acquired a sense of belonging to the land of Canaan. Some Hebrews lived in Egypt and some wandered around Canaan, but they clearly identified Canaan as an ancestral land they could return to (1300-1220 BCE). Yearning to the Land of Israel has been part of Jewish existence ever since, providing thereby reasonable justification for a return to Zion and a claim on Palestine, according to contemporary Zionists.

Bible editors did not conceal facts, which indicate that other parties had legitimate claims on Canaan. Ishmael was Abraham’s son as much as Isaac’s and Esau was Isaac’s son as much as Jacob. Jacob went to Laban not only for matrimonial purposes, he left to escape injury in the hands of Esau who claimed his legitimate rights as a ‘first born’ over ancestral lands (Genesis 27 and 28). Even after 14 years in Aram, the time Jacob took to marry Lea and Rachel as well as two concubines (Bilhah and Zilpah), he felt obliged to appease Esau in order to avoid war upon return to Canaan (Genesis 32 and 33). Biblical editors chose an appeasement strategy to resolve the conflict over the ownership of ancestral land; but interestingly, they also recalled divine powers to bless Jacob and grant him the land that was to be called hence forth the Land of Israel’ (Genesis 35).

Biblical tales indicate that competing claims over the same land have been the source of conflict within Hebrew tribes. Biblical editors offered ‘a reasoned common ground for political agreement’ in the form of appeasement (Genesis 32 and 33), but also a religious doctrine, which grants divine rights to Israel over the land of Canaan (Genesis 35). In other words, the religious doctrine set aside politics of compromise to settle competing claims over the same land by recalling divine intervention. The religious doctrine made the source of conflicts impossible to resolve on the basis of ‘a reasoned common ground for political agreement’ ever since.

Locke (1689), Montesquieu (1748), Hobbes (1652) dealt with similar competing divisions within society to which it seemed difficult to find any ‘reasoned common ground for political agreement.’

In this discussion of justice as fairness in a contemporary political context, the purpose is to explore how a mutual agreement may be reached between parties in fair conditions. In a political liberalism context, the objective is to find out whether a social contract is achievable in Israel, allowing for a reasonable pluralism between various and even conflicting groups, assuming they operate within an overlapping consensus (see Rawls 2001: xi for the basis of this formulation). Biblical tales pointed out that divergence may be narrowed through social cooperation if parties are willing to compromise, make concessions as well as acknowledge common grounds (common ancestry). However, when a divine doctrine is involved, the basis for social cooperation is ruled out and thus grounds for an overlapping consensus weaken, implying the necessity for the use of force to enter and occupy Canaan. And indeed, following the Exodus from Egypt, Hebrew tribes engaged in a long and bloody war campaign to take hold of the ‘Promised Land.’

A New World Order

Zionists claims over the land of Palestine present similar problematic but with a significant difference, the international political context has changed. Following the French revolution and Napoleon’s wars, nationalism swept European lands but it came to fruition only after the breakdown of the old Empires after WWI. In this context, Jews sought a homeland for themselves like other nations. And indeed the League of Nations granted Jews a homeland in Palestine subject to a British mandate (Versaille and San Remo Treaties). Around the same time (1920), Arab tribes were granted several nations spreading all over North Africa and the Middle East. It would be hard to deny that the concept of a Jewish homeland in Palestine gained international legitimacy. Alternatively, one can hardly claim that efforts to establish a Jewish nation in Palestine breached international principles of justice. Unlike in Biblical times, Jews engaged in the process of nation building in modern times, not on the basis of a divine doctrine (although this argument has not been set aside) but on the grounds of a contemporary international political doctrine, which grants national legitimacy to groups with particular social characteristics (Johnson, 1987).

Assuming that a contemporary international political doctrine grants legitimacy to Zionists to make valid claims over Palestine, the question remains as to the rights of local residents who are not Jews or Zionists. At least two groups can be identified as local residents in Palestine when Zionists began the process of nation building: Arab Palestinians and Jewish Orthodox residents. Each of these two groups holds doctrines, which diverge clearly from the Zionist discourse. In a contemporary political liberalism context and allowing for a reasonable pluralism between various and even conflicting groups, would it be possible to bring the parties to operate within an overlapping consensus and strike a social contract? And if so, what would be its underlying principles?

Basic Liberties and Fair Equality of Opportunities

Debates in recent centuries identified basic liberties and fair equality of opportunities as key underlying principles of social contracts in democratic context. The principles of liberty and equality bear significant differences, along with consequences of substance on public policy (Constant 1819). Members of contemporary civilized societies have come to think in term of these taken for granted principles to guide their behaviour, thereby reconciling themselves with the social order in which they live in a positive rather than a resigned way (Hegel 1821). Liberty and equality thus provide the framework within which a reasonable pluralism between various and even conflicting groups may emerge and within which an overlapping consensus may evolve or a social contract struck in nowadays democracies (Rawls 2001: pp. 2-3).

Basic liberties protect fundamental interests, i.e., religious beliefs or some other doctrines or philosophies. In the absence of mutual trust, a constitution should guarantee basic liberties (Rawls 2001: p.105). Without constitutional guarantee, citizens may feel that their fundamental interests are in jeopardy and thus withdraw or narrow their support to the unfavourable social order, resulting in its instability (Rawls 2001: p.110). In the case of freedom of speech, there are special cases that need to be addressed i.e., libel, defamation and incitement to lawless use of force. In the case of libel and defamation, the matter tends to be in the private particular domain and may be considered as an offence. Incitement to lawless use of force is not permitted because it undermines democratic procedures. Revolutionary advocacy, however, remains permissible. Basic liberties include the right to hold private property for exclusive use, as it provides the basis for personal independence and self-respect (Rawls 2001: p.113-114).

In the Israeli context, it is clear that many citizens have not entered a social contract within the Israeli democracy voluntarily. Many Arab Palestinians and most objecting and antagonist orthodox Jews found themselves in Israel subsequent to war in 1948 or 1967. Others were born into it. Yet, in our contemporary way of thinking of democracy, citizens who actively participate in it are considered equal and free. The process that follows then deals with the terms of active participation in order to ensure a social order, which results in just and fair outcomes and within which a reasonable pluralism between various and even conflicting groups may emerge and within which an overlapping consensus may evolve or a social contract struck.

Most interesting is the case of objecting and antagonist orthodox Jews who tend not to support the secular Jewish state of Israel. Non-orthodox Zionists perceive man as a proactive agent responsible for his personal and national redemption, while orthodox Jewry subjects man to the will of God and divine redemption (Hertzel תש”ך; Greenfield, 2001: p.57, 68, 70). According to orthodox groups if Jews follow the Covenant (i.e., Torah precept), divine redemption will follow and peace will reign upon the Land of Israel (Leviticus 26:3-6). Thus they wish to derail Zionist nation building, while accepting life in exile as long as divine redemption does not take place (Greenfield, 2001: p.35). This orthodox Jewish doctrine obviously conflicts with Zionist contemporary conceptions and it would be of essence to examine if an overlapping consensus may evolve between these two diverging groups in a societal context that allows for a reasonable pluralism. A similar examination will address evident conflicting interests between Palestinians and Israelis too and related consequences on the Israeli society.

Society as a Fair System of Cooperation

One way to look at a society as a fair system of cooperation is to examine how it addresses liberty and equality in its comprehensive doctrines (i.e., religious, philosophical, or moral) as well as in practical terms. It would be of interest to examine the political and judicial culture and the way political conceptions and laws are interpreted and applied. It would be fair to argue that democratic societies are not static entities and that fairness is the outcome of an incremental process that may be achieved overtime and from one generation to the next. In this context, an analysis will be conducted to examine how distinct social groups faired in Israel (i.e., groups of immigrants such as Veteran East Europeans, North African, Middle Easterner, Russians, Ethiopians, Labour migrants as well as Palestinians within the green lines and beyond them.). A comparative analysis should provide indications whether the Israeli system of cooperation yield fair results in the areas of liberty and equality. In general, Israeli citizens view their society as a democratic society and that as such it should be based on a system of cooperation that offers fair equality of opportunities and that cannot remain static due to any religious or aristocratic reasoning. In other words, Israeli citizens would tend to hold the view that political parties should not work to deny any one or any group basic rights such as liberty and equality and should not propose the denial of these rights in their political platforms.

A fair system of cooperation should not be based on a central coordinating authority but rather on transparent and well-identified rules, which guide expectations and behaviours of citizens. Citizens normally expect to advance their own good on the basis of the accepted rules of cooperation. They also wish these rules would apply to all parties equally based on principles of reciprocity. Thus it is not fair for a party to propose terms of cooperation but deviates from them to draw extraordinary benefits (Rawls 2001: pp.6-7). It is granted that societal systems of cooperation are complex and that some flexibility is needed in the way rules of cooperation are applied to facilitate smooth operation. For example, it may be reasonable to expect that some citizens may benefit of an advantage they possess. However, it cannot be considered reasonable if the terms of cooperation are structured in such a way that one group may draw more benefits than another at any point of time or over time or across generations. An examination of these issues as they evolved in the Israeli society will follow. However, to make matters clearer, it is argued that granted equal opportunity in education, it is reasonable for citizens who acquire knowledge and skills and who use them to advance the common good to gain more benefits from their advantage. However, it would not be reasonable if the system of education is structured in such a way that one group gains more advantages that another systematically and that no corrective measures are put in place to re-establish fairness in the system of cooperation. A society that lacks corrective mechanisms would be considered defective in its application of the principle of fairness as a political concept.

The essence of an orderly society and its basic structures

Citizens in democratic societies identify transparent and well-identified rules along with relating political and socio-economic institutions (or structures) as the essence of an orderly society. They normally have a good intuitive understanding of this underlying order and use it to guide their behaviour effectively. Regardless of their level of education, citizens do have a political conception of justice and act according to it; therefore they are able to express their discontent when they encounter significant deviations from it (i.e., through protests, demonstrations, voting, emigration, withdrawal, etc…). Further, citizens in a democratic society may subscribe to various and even conflicting doctrines (i.e., religions) and yet have an overlapping consensus that would form the base for cooperation or a social contract.

Judiciary and economic structures provide a framework to oversee and regulate the distribution of benefits. They do not specify exactly how things should be done but provide ‘rule of thumb’ guidelines to allow for enough flexibility to deal with changing circumstances over time. Effective judiciary and economic structures should normally yield a fair and orderly society. Alternatively, ineffective structures would point out injustices (Rawls 2001: pp 10-13). Using these basic concepts, an analysis of the Israeli society would identify ineffective structures and point out injustices and should be useful in identifying reform objectives.

The Question of Just Relations between Peoples

The discussion of justice as fairness focussed until now on a social contract within a given society. The intention underlying this discussion applies to any society but the intention here is to address the Israeli society specifically. However, Israel does not exist in an international vacuum. Therefore it is necessary to address the international context in which it has to subsist. Thus in a fair and just world order, it is reasonable to expect that societies would live side by side and that within each society orderly structures permit decent political existence that may be in the most ideal case democratic and respectful of human rights such as liberty and equality or at the least not lacking complete disorder, even if democracy does not exist (see relevant discussion in Kant’s “Perpetual Peace” 1795 and Rawls 1999).

Subsequent to the WWI, as mentioned earlier, international authorities granted Jews the right to establish a homeland in Palestine. Non-Jewish residents of Palestine persisted in their objection to the establishment of a Jewish homeland on their expense and managed to enlist the support of neighbouring Arab countries to assist them in securing what they regard as their legitimate right. All expressions of objection to the establishment of a Jewish homeland in Palestine, i.e., from demonstrations to wars, failed in preventing Zionists from bringing to fruition the establishment of the homeland that is now the state of Israel. And yet, Israel has to deal with non-Jewish Palestinians within its boundaries as well as address outstanding claims of Palestinians outside its boundaries. A detailed discussion of these issues will follow.

The Idea of Original Position

The political concept of a just and fair society stems for the original position that free and equal citizens join forces to improve their common lot. There is no doubt that the original position could start elsewhere. For example, orthodox Jews may use divine authority as an original position to define a fair and just society according to prescribed religious laws. In such a case, priests (Cohens) and teachers (Levites) would have special privileges, thus breaching principles of justice as fairness as a political conception in contemporary democratic societies. Divergence as to the original position applies to the Israeli society especially and therefore would be addressed in more detail later. Divergence as to the original position also indicates as to the necessity to accommodate a reasonable pluralism between various and even conflicting groups, within an overlapping consensus. However, even when reasonable pluralism is assumed, free and equal citizens join forces only with the goal to improve their common lot. Therefore, the minimum they are not likely to agree on is fair equality of opportunity and not a structure that benefits one group more than another. (Rawls 2001: pp.14-18).

Equality of opportunity requires that all positions be open to everyone based on talent but also that everyone get a fair chance to attain them. This idea is based on the supposition that citizens who have the same level of talent, abilities and willingness to use them would have the same chance regardless of origin (i.e., social class, ethnicity, religion…) It also requires adjustments overtime to prevent excessive concentration of wealth and political might in the hands of the few (Rawls 2001: pp. 42-44). Further, equality of opportunity cannot be denied on the basis that it would allow a certain group (i.e., Arab Palestinians) to impact economic development (i.e., the development of the Jewish economic sector in Israel). Similarly, equality of opportunity does not allow exemption or deferment of military conscription because conscription interferes with liberty and equality (Rawls 2001: pp. 46-47). It also requires equal access to medical care to ensure that citizens are able to take full advantage of their basic rights (Rawls 2001: p.174).

The absence of equality of opportunity is likely to be associated with the emergence of diverging or conflicting doctrines among Palestinians, citizens living in remote areas in the Galilee or the Negev, as well as citizens exempt from military service (orthodox Jews and Palestinians) in Israel. These matters will be explored later.

The Ideas of Freedom and Equality, Distributive Justice and Basic Structures

Citizens understand intuitively what is just and what is good and they tend to pursue both overtime. In this sense citizens are considered equal from a political perspective and political conceptions of justice do not allow treating them differently. Thus political conceptions of justice exclude preferential treatment of any group (i.e., an aristocracy) or denial of benefits to any group (i.e., an ethnic group) (Rawls 2001: pp.18- 24).

Citizens cooperate in a fair and just society to enhance their common good and expect that all benefits produced be distributed in accordance with the principle of fair equality of opportunity. For this purpose basic societal structures should be organized according to well-known principles and all parties are expected to honour them to ensure systemic fairness overtime (Rawls 2001: pp.50- 51, 122-124).

Justice as fairness requires that basic laws regulate accumulation of property to prevent excessive concentration of power, i.e., through taxation and inheritance laws. For it is very likely that a high concentration of wealth may be accumulated in the hands of the very few and thus undermine fair equality of opportunity. It is taken for granted that some inequality is beneficial for society to operate efficiently. However, excessive inequality can also undermine order and efficiency. Therefore, it is necessary to address societal characteristics that may enhance systemic inequality, i.e., social class of origin (i.e., birth in poverty), endowments of birth and opportunities to develop them, as well as destiny determined by chance (i.e., lack of employment or business opportunities in a remote region) in order to adopt corrective measures that ensure fairness (Rawls 2001: pp.52-57, 122-124).

The idea of a fairness that is conducive to social cooperation to enhance the common good requires that basic structures reward citizens not for positions due to class of origin, endowments of birth or destiny determined by chance but for skills and education acquired and for putting them to work to enhance the common good (Rawls 2001: pp.74-75).

The idea of fairness here is based on the principle of comparative advantage in economy. In other words, regardless of positions due to class of origin, endowments of birth or destiny determined by chance, when citizens cooperate to enhance the common good and accept to ‘take’ a role and ‘acquire the skills to do it’ in a division of labour that enhances the common good, they deserve a fair share not on the basis of their social placement but on the basis of their contribution to the common good. In the case of Israel, when immigrants assume a role that enhances the common good, i.e., live in a remote location to provide more security to the whole society, they deserve fair compensation and should not bear the cost of living in a disadvantageous location alone. Fair compensation may also be given to a citizen who invests more in learning to enhance the common good. Thus differential compensation works in a variety of ways to fulfil the fairness requirement. It aims to reduce inequalities in the case of a citizen who lives in a remote area to serve a common good but also accepts differential compensation and related inequalities that are associated with differences in investment in learning to enhance the common good. Relevant empirical observation in the Israeli society will be examined later.

The fairness of basic social structures may be assessed according to criteria such as the freedom of thought, fair equality of opportunity in terms of mobility and occupations, reasonable expectation of income from occupation or position held, the possibility to exchange income/wealth to fulfill personal choices and social bases of self respect that influence the way a citizen advances his/her cause in society (Rawls 2001: pp.57-61).

The discussion above is particularly relevant to the Israeli society in which veteran immigrants absorbed newer immigrants. It would be of interest to examine to what extent differential treatment of different groups took place. It is evident that if basic structures allow preferential treatment of veteran versus newer immigrants, then systemic fairness is breached with consequences as to citizens’ commitment to social cooperation. In general, it would seem that inequalities between waves of immigrants would be associated with inequalities in political power and control over economic resources. The same is likely to apply to differences in gender and ethnicity (ethnicity in Israel is a proxy of race elsewhere).

In the case of the Israeli society, there is a special situation that requires attention when assessing the fairness of the social structure due to the Israeli-Arab conflict. The principle of freedom of thought would grant Palestinians in Israel the right to civil disobedience and/or conscientious refusal to serve in war against their brethren across the green the line or in neighbouring Arab countries. Given this right, how should Palestinian citizens be treated in the areas of fair equality of opportunity in terms of mobility and occupations, reasonable expectation of income from occupation or position held, the possibility to exchange income/wealth to fulfill personal choices and social bases of self respect that influence the way a citizen advances his/her cause in society?

In the case of the Israeli society, there is another special situation that requires attention when assessing the fairness of the social structure due to the orthodox and non-orthodox conflict relating to legitimacy of social contract that does not stem from divine authority.
The principle of liberty of conscience would grant objecting and antagonist orthodox Jews in Israel the right to civil disobedience and/or conscientious refusal to serve in war that would take them away from Torah learning and involve them in actions that interfere with divine wishes. Given this right, how should objecting and antagonist orthodox Jewish citizens be treated in the areas of fair equality of opportunity in terms of mobility and occupations, reasonable expectation of income from occupation or position held, the possibility to exchange income/wealth to fulfill personal choices and social bases of self respect that influence the way a citizen advances his/her cause in society?

The Idea of Adjudication and Justice

In the political conception of society, a fair system of cooperation assumes freedom and equality as necessary ideas if we are to expect citizens to play an active role in the pursuit of what is just and what is good. Citizens are free in the sense that they claim the right to consider and reassess what is just and what is good not only at an original point of time but overtime. A political conception of justice is not a static doctrine but an evolving outcome of agreements struck between parties that remain free overtime. The right of citizens to call for adjudication is essential to the process of maintaining a just and fair system overtime. Of relevance to adjudication are its underlying principles: are they based on constitutional or majority democracy? For free and equal citizens to make claims or reassess what is fair, underlying structures must be also public to allow adjudication to take place in time of disagreement (Rawls 2001: pp. 21-24; p. 86).

Israeli founders opted for majority rather than constitutional democracy. In majority democracy there is a possibility that some aspects of the underlying structures remain concealed from the public, raising doubt as institutional fairness as well as a questionable support by citizens. An examination of relevant consequences would be of interest here.

Public Justification

For justice as fairness to hold, public justification of the social order must be acceptable not only to one dominant group but also to groups who hold diverging or even conflicting conceptions. Taking for granted some divergence, the aim then is to narrow it as much as possible in order to bring all parties to converge around key issues such as the structure of the legislature, the executive government, the judiciary and the limits of majority rule (i.e., majority respect for liberty of thought and association and equality in vote and rule of law). The idea of public justification seeks to moderate divisive political conflicts (i.e., between religious and non-religious doctrines) in order to bring all parties to cooperate on the basis of an overlapping political consensus, reflecting equilibrium in an orderly society (Rawls 2001: pp. 26-31). Public knowledge is associated with a process of education, which enhances the feeling of fairness, the spirit of compromise and reciprocity and the will to respect the social contract that binds all parties and thereby ensures public civility (Rawls 2001: p. 118; 120-122; Mills 1969).

It is necessary to distinguish between public and non-public justification (or reasoning). While non-public reasoning deals with particular principles guiding voluntary associations, public justification is an overriding underlying structure consisting of universal rules, which apply to all lower level associations. This distinction is of essence because a member of a public association may leave it without significant costs (i.e., a person who abandons his synagogue or political party) while getting out of societal boundaries (i.e., emigration) has much more significant implications in terms of language, culture, self-perception…

Consider for example the division between orthodox and non-orthodox Jews in Israel. Some orthodox Jews believe that the underlying structures of the Israeli society should be congruent with divine law (i.e., Torah and rabbinic interpretations of it, i.e., according to Deuteronomy 18:11 and prophecies Ezekiel 37:21-28) and can come to fruition only through divine redemption. Most non-orthodox Jews believe that the underlying structures of the Israeli society should be congruent with contemporary political conceptions of liberalism and democracy, which expect each individual to bring about both personal and national redemption. Although the divergence between the two groups appears irreconcilable, the process of public justification can moderate differences through cooperation on the basis of principles that are common to both Biblical law and contemporary political conceptions of liberalism and democracy (i.e., the principle of equality as defined in Leviticus 19:33-34; Numbers 15:16 and Deuteronomy 11:18-19; the principle of equality before the law in Deuteronomy 1:16; The principle of personal responsibility; Ezekiel 33:20; The principle of fairness as in Deuteronomy 24: 14; Jeremiah 22: 3; Zechariah 8:16-17, rather than emphasis on ritual Amos 5: 21-25 and Micah 6:7-8; the principle of representation as specified in Deuteronomy 1:13; Joshua 4:2; limits imposed upon rulers as in Deuteronomy 17: 14-20; Isaiah 32: 1; universality and peace Isaiah 2:2-4; Micah 4:1-5). This illustration will suffice for now, as a detailed analysis will follow later.

Overlapping Consensus, Stability, Oppression and Related Consequences

Realistically speaking, although the process of public justification is likely to produce some equilibrium, historical and contemporary empirical observations indicate that diverging doctrines remain potent and require accommodation within contemporary democratic structures. Thus, modern democracies allow for a reasonable pluralism between various and even conflicting groups, assuming they operate within an overlapping consensus (Rawls 2001: xi).

In the case of Israel, divergence between orthodox and non-orthodox Jews may remain potent overtime. And yet, it is important to note that many citizens do not hold congruent views at all times. An orthodox Jew may believe in active personal and national redemption while a non-orthodox Jew may believe that active personal and national redemption express a divine wish. In other words, conceptual incongruence at the personal level moderates diverging positions, permitting a modus vivendi that turns into an overlapping consensus over time (Rawls 2001: pp. 32-33, 192-194).

Ideally, a political conception of justice as fairness generates its own support and stability. Further, a political conception of justice as fairness cannot be considered liberal and cannot constitute an overlapping consensus if it does not allow reason to win over citizens who are parties to the social contract. This formulation then requires that unreasonable doctrines do not gain enough popularity to undermine the basic structures, which underlie the social order (Rawls 2001: pp124-125; 185-187). But the view that reason prevails is somewhat idealistic in light of the fact of oppression. In some cases the complexity of the problems citizens face leads them to conflicting reasoning. Historically conditioned opinions, i.e., in the case of the orthodox non-orthodox divergence and the Israeli Palestinian conflict, do tend to result in conflicting reasoning. Pluralism is one way to deal with conflicting reasoning in a democratic context. Yet, a democratic use of power to impose the opinion of the majority cannot be excluded (i.e., penalties enforced by state power), but at significant social costs such as oppression and corruption of economic, civic and cultural life. However, a democratic society regulated by any imposed doctrine, religious or not, undermines the conception of justice as fairness since justice is redefined as ‘rightness’ whether divine or not (Rawls 2001: pp. 34-37; 185, 188). Justice as fairness as a political conception assumes that conflicting reasoning may endure overtime without undermining social order because each party, (i.e., orthodox Jews in Israel), believes that its doctrine will win support overtime and that it would dominate society sometime in the future (Rawls 2001: p.195).

Here too, an examination will be pursued to find out how the Israeli society dealt with groups which held conflicting doctrines, such as the orthodox groups and the Palestinians and related social consequences.

There are also circumstances when advantaged groups violate the terms of social cooperation and urge re-negotiations periodically to gain more benefits. The theory of justice as fairness suggests that it is not in the best interest of the advantaged to seek re-negotiation to gain more benefits because their attempts are likely to destabilize a system, which gives them already advantages based on the principles of reciprocity and difference. And yet, because the more advantaged are in positions of power, they are often tempted to violate the principle of justice at the risk of instability (Rawls 2001: pp. 124-127).

There are also circumstances when social order experiences strains because disadvantaged groups feel oppressed and violated by the terms of social cooperation and respond either with violence or withdrawal. In both cases they withdraw support to the existing social order. The theory of justice as fairness suggests that the principles of reciprocity and difference are potent enough to ensure commitment to social order, as they allow citizens a good chance to gain the needs essential to maintain a decent life (Rawls 2001: pp.127-130). In modern democracies and welfare states, an attempt is made to reduce strains on systemic order through a guarantee of a social minimum.

An examination of the Israeli society will explore whether advantaged groups have violated principles of fairness and how disadvantaged groups responded in ways that point to strains on the existing social order.

Justice as fairness proposes that all citizens have a stake in an equitable social order that provides:
1. Basic needs to all;
2. Reduced social and economic inequalities to prevent one group dominating another;
3. Inequalities encourage the development of inferiority among the disadvantaged and superiority among the advantaged; Ascribed status by birth, gender or ethnicity/race are considered particularly unjust in contemporary societies;
4. Inequalities, (i.e., monopolies) produce inefficiencies in politics and distortions in market conditions.
The idea of equality stems from the political necessity to establish a social order that is conducive to fair social cooperation between free and equal citizens engaged in enhancing the common good overtime and that inequalities would tend to undermine the stability of such a system (Rawls 2001: pp.130-132; Rousseau 1762)

What kind of social order is just and fair?

Justice as fairness as a political conception examines social orders on the basis of four criteria: Are its social structures fair? Can its social structures be designed to fulfill set goals? Can citizens shaped by its social structures be trusted to comply by rules (i.e., is there corruption)? And finally, are citizens able to fulfill tasks within the social structures (i.e., are they competent)?

Laissez-faire capitalism aims for economic efficiency, securing formal equality but dismissing fair equality of opportunity as well as diminishing the value of equal political liberties. Welfare state capitalism allows concentration of economic and political power in few hands, undermining thereby equality of opportunity. The least advantaged get welfare assistance but little opportunities to become part of a production system that would improve their marginal condition. State socialism with command economy breaches principle of equality and liberty as well as free democratic and market dynamics. Liberal democratic socialism comes close to Property owning democracy but requires ownership of means of production, thus raising questions relating to corruption and competence.

Property owning democracy has social structures, which are designed to disperse wealth among citizens to prevent a few hands from controlling both the economy and political power. It ensures fair equality of opportunity through education at the beginning of the race and an adjustment at its end (taxes). The least advantaged get a fair share, not due to welfare, but because they make a contribution to a system that benefits everyone. This social structure is fairer because it reduces the probability for an underclass to evolve and for citizens to be more supportive of the social structures. In other words, social structures encourage wider participation and thereby prevent a few hands from taking control of power and pursuing narrow interests (Rawls 2001:pp.133-145).

Property owning democracy is a constitutional rather than procedural democracy. The constitution consists of laws that are consistent with principles of fairness (i.e., equality and liberty). Citizens may refer to them in case of need for adjudication and courts use them to render judgement. In procedural democracy the majority may legislate laws that limit the liberty and equality of certain groups (i.e., Palestinians in Israel). The difference is of significance because social structures have an impact on how citizens perceive themselves in a given social order and which values they acquired in it to guide their expectations and behaviour. In other words, social structures in a constitutional democracy encourage wider participation on the basis of more universal rules while procedural democracy allows a particular majority to take hold of power and pursue its interests while denying those of the minority (Rawls 2001:pp.145-148). This distinction between constitutional and procedural democracy is particularly relevant to Israel, as shall be seen later.

Fair equality of opportunity of political liberties

It is common to discuss equality of opportunity in the context of education. However, here it is proposed that all citizens must have fair equality of opportunity to influence the outcome of elections, hold office, and by implication have fair representation. To apply this principle to Israel implies that ‘sponsored’ representation (i.e., selection of party candidates to represent an ethnic group) should not exclude ‘contest’ representation based on fair probability to hold an office. This may require significant reforms of the electoral system to ensure fair weight to citizens according to a variety of relevant criteria, public funding of elections and regulation of other sources of funding and contributions, access to public media, among other issues to be elaborated on later. These types of adjustments are necessary especially in the Israeli context to empower legislators and political parties and free them of the influence of bureaucratic control due a long tradition of liberal democratic socialism as well as from the concentration of economic and social might in the hands of a few families.

Justice as fairness does not require ‘guaranteed’ outcomes or allocations of resources such as income to different groups (i.e., to a religious group to meet religious needs or to artists etc…). It only requires that social structures ensure fair equality of opportunity and acknowledges likely differential outcomes. It is of essence to distinguish between allocations of resources for the universal benefit of a society from allocations for the particular benefit of a sector in society (i.e., the orthodox or the kibbutzim in Israel) (Rawls 2001:pp.148-152).

Distinctions between Political and Comprehensive Liberalism

Justice as fairness is based on the principles of liberty and equality. It may be argued that it favours individuals and their autonomy and simultaneously disfavour group allegiance to comprehensive conceptions (i.e., religion). The issue at stake is not a matter of bias towards individualism but a matter of fair equality of opportunity from a structural point of view. Justice as fairness does not preach ‘individualism’ per se. Its structures allow for groups to form and for ‘reasonable pluralism’ to flourish through diverse and even conflicting doctrines. However, it excludes doctrines, which degrade or repress citizens on the basis of criteria such as gender, race, ethnicity or religion. Such exclusion should not be mistaken for injustice. Justice as fairness as a political conception may clash with certain religious sects that reject modernity on matters relating to the education of children (or adults), when society insists on applying the principles of liberty and equality to members of the sect, i.e., informing members on liberty of conscience and training for self-sustenance. Justice as fairness as a political conception, does not allow any institution (including families) to violate the basic rights of liberty and equality of citizens (women, as well as, children as future citizens included). In other words, citizens may choose to be members of associations and abide by their rules but as free citizens they have the right to opt out at any time and they remain eligible for the protection of their basic rights at all times. These issues are particularly relevant in Israel, in the case of members of orthodox Jewish and Arab communities, as well as children in those communities. Justice as fairness as a political conception rejects the doctrine that there is no salvation outside of the synagogue, mosque or church, and therefore a social contract in the form of a political constitution cannot be accepted. Under such circumstances, a majority of citizens has the right to impose its will upon an objecting or antagonist minority in order to make room for a social order that is based on liberty and equality. These issues will be discussed in more detail later (Rawls 2001:pp.152-157, 166-167; 183; Berlin 1958; Okin 1989).

The examination of the above principles of justice in the Israeli society remains pending.

References
Berlin. I. 1958 “Two Concepts of Liberty” in Four Essays on Liberty N.Y.: Oxford University Press, 1969
Constant, B. 1819 “Liberty of the Ancients Compared with that of the Moderns” in Constant, B. 1988 Political Writings, NY: Cambridge University Press

Kant E. 1795 Perpetual Peace
Locke (1689) Letter on Toleration
Locke (1689) Second Treaties
Mill, J.S. 1969 “Remarks on Bentham’s Philosophy” in
Robson, J.M. (ed.) 1969 Collected Works, Vol. 10 Toronto University Press.
Montesquieu (1748) The Spirit of Laws
Okin Moller S. 1989 Justice, Gender and the Family N.Y. Basic Boooks
Hobbes (1652) Leviathan
Hegel 1821 Philosophy of Right
Greenfield, 2001
Hertzel תש”ך

Rawls J. 2001 Justice as Fairness, Cambridge, Massachusetts, Harvard University Press
Rawls J. 1999 A Theory of Justice, Cambridge, Massachusetts, Harvard University Press
Rawls J. 1999 The Law of Peoples, Cambridge, Massachusetts, Harvard University Press
Rousseau 1762 Social Contract

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