John Rawls’ A Theory of Justice, first published in 1971, immediately became and has remained unquestionably one of the most important texts for law schools for the last 50 years. But it should come with a warning label for three reasons:
1. With his “original position,” Rawls attempts to supplant a universally knowable Natural Law, à la the Judeo-Christian tradition.
2. With his “veil of ignorance,” Rawls attempts to supplant the moral imagination of the Moral Principle of Reciprocity, i.e., the Golden Rule and the Silver Rule.
3. The conditions of hypothetical deliberators in the original position are equality and liberty. Insofar as the principles of justice which Rawls ends up constructing are equality and liberty, the whole argument is essentially circular.
The saving grace of John Rawls’ A Theory of Justice is that it reflects the Natural Law and legal tradition of the American experience.
The danger of John Rawls’ A Theory of Justice is that, as with all Legal Positivism, it supplants a God-based Natural Law with a human construct, which is even more subject to human bias and vagaries.
Constructing legal theory and law are difficult and challenging enough given our Fallen nature. The challenge of constructing legal theory and law is not improved by supplanting the moral imagination of Natural Law and the Moral Principle of Reciprocity with a hypothetical original position behind a veil of ignorance.
Hence the need for a Warning Label.