Rawls’s central aim in Outline of a Decision Procedure for Ethics (hereby, the Outline) is to devise a decision procedure which could be used by a morally competent person to adjudicate cases of conflicting individual interests. In addition to proposing a procedure, the Outline is rich with insights about ethical inquiry and theory-building. To Rawls, the goal of ethics is to discover whether there exists a reasonable method for managing conflicts of interest. Finding this method, according to the paper, is a matter of explicating a class of considered judgements made by morally competent judges. Here, an explication is defined as a list of principles that would yield approximately the same judgements as those of the judges, when applied to the same cases.
This article addresses whether the description of morally competent judges given by Rawls can accommodate the influence of class positionality on the capacity for sound judgement. My argument is that, if class-based prejudice and bias have an influence on the soundness of moral judgements, then Rawls should be open to selecting a new class of judges whose positions along social hierarchies are known and accounted for.
- Morally Competent Judges
It is probably optimistic to conjecture that humans generally display principled moral behaviour. Let us say there are people among us who are capable of making intuitively sound judgements about how to resolve conflicts of interest. Rawls describes morally competent judges as people who are intelligent, reasonable, and impartial with respect to the cases they adjudicate (§2.1). We are invited to imagine that their considered judgements on uncomplicated cases are most likely to approximate what we would regard as being reasonably justified. The cases themselves should be non-special, even straightforward ethical dilemmas, which illicit intuitions without putting any of the judge’s own interests at risk or putting them under duress. And, although judgements should proceed from careful consideration of all the relevant facts of the matter, they should not be explicitly guided by any principles (§2.5). The end goal is to provide a satisfactory explication of their judgements. This in turn can serve as a candidate decision procedure for future cases.
- Explication
An explication is satisfactory, says Rawls, only if it explicates the class of considered judgements made by morally competent judges. Rawls defines explication in §3.2:
Consider a group of competent judges making considered judgments in review of a set of cases which would be likely to arise in ordinary life. Then an explication of these judgments is defined to be a set of principles, such that, if any competent man were to apply them intelligently and consistently to the same cases under review, his judgments, made systematically nonintuitive by the explicit and conscious use of the principles, would be, nevertheless, identical, case by case, with the considered judgments of the group of competent judges. The range of an explication is specified by stating precisely those judgments which it is designed to explicate, and any given explication which successfully explicates its specified range is satisfactory. (pp. 184)
So, an explication should be a set of principles that a reasonable, morally competent person could apply to everyday ethical problems. This suggests that an explication is subject to some human psychological and not just logical constraints on how many principles it can include and how complex they can be. In other words, while 3000 principles yielding one-to-one judgements on 3000 cases may technically count as an explication, it is probably not a likely candidate for the kind of procedure Rawls has in mind, since no person could reasonably be expected to remember 3000 moral principles, yet alone to justify their actions by them daily. To Rawls, elegance and simplicity are not just virtues, but requirements for a satisfactory explication.
- What are potential limitations of defining our evidence base in this way?
Morally competent judges play an important role in the Outline. They define the evidence base for the theory and set a standard for what should count as a satisfactory explication. But it is worth considering why the judgements of this group should be most relevant, rather than some other potentially viable group. One could worry that Rawls does not adequately justify that the judgements of the ‘competent man’ are the evidence in need of explication. Might we also take Rawls at his word that the morally competent are men?
I will return to gender. Consider for now that a potentially viable alternative might be the class of judgements belonging to a group of people with degrees in ethics and morality. This could include moral philosophers and judges– the latter at least are already entrusted with an official duty to make ethical decisions. Rawls insists that morally competent judges are of average intelligence; that they are individuals we ordinarily call “reasonable” and “impartial,” for it is “men of their character whom we want to decide any case in which our interests are at stake.” (§2.4). Thus, it seems like the class of morally competent judges is juridical in nature; we must ask ourselves who we would trust to properly adjudicate on matters where our own interests were at stake. But this raises the question of why any of us should be happy to trust people of average intelligence when we could recruit individuals with formal qualifications, whom we already trust to make ethical decisions. Unless our trust in them is misplaced, formally trained judges are expected to make more reliable ethical judgements. An explication of these, then, should yield something closer to the consistent set of moral principles we are looking for.
To this, Rawls would say: Assuming that something like moral insight exists, we should find sufficient evidence of it in regular people (§2.3.i). Yet, from Rawls’s description of these hypothetical judges, one easily gathers the impression that his standards are in fact quite demanding– that he is calling for a rarer level of expertise than what we might really consider to be average. For instance, the morally competent judge is supposed to be self-aware and non-fatalistic about their biases and prejudices. They are also supposed to be vividly sympathetic and experienced (§2.3.iii–iv). The morally competent judge defined by Rawls, though acclaimed to be average, turns out to represent stringent ideals for good decision making.
Has Rawls given an exhaustive description of the characteristics we think are important to objective and fair decision-making? He does not, for instance, consider the likelihood that morally competent judges live under an oppressive regime, such as the Patriarchy. Recall that this institution founded itself and justified its activity on the grounds that the interests of men outrank the interests of women as a social class. A similar point is made by considering the history of racism. One could worry that, having been raised under institutions of oppression, our morally competent decision maker may possess patriarchal or other prejudices. While judges must be self-aware and non-fatalistic about their prejudices, Rawls does not say that they must be capable of adjusting for them. Assuming they try their best to mitigate for bias and prejudice, there is a risk that decision makers could be unconsciously or implicitly biased, about which mere self-reflection could not make them aware in the first place.
The problem is that deep structures of hierarchal oppression may affect moral judges’ abilities to make genuinely impartial judgements. This issue should be distinguished from those at the level of application after the decision procedure has been made: For example, a failure of someone who is following the procedure to properly weight competing interests. Rather, what is at risk here is a failure at the level of constructing the procedure, which could cast doubt over its legitimacy as a source of ethical justification. If the judgements we explicate are themselves altered by prejudice, we should have less confidence that the resulting procedure will be justified.
Rawls should be sensitive to the concern that bias and prejudice may affect the outcome of an explication, since he evidently values the impartiality of the class of considered judgements. The question, then, is whether his view can mitigate our concern. There is some feature of Rawls’s view that I believe can address it on the one hand and yet, at the same time, may bar us from exploring interesting alternatives.
In §2.4, Rawls states that the characteristics of moral competence cannot be associated with characteristics of race or social class or institutional group, because these have no “known” connection with “coming to know” (§2.4, pp. 181). Thus, he rules out that social class could affect a person’s ability to make informed judgements. However, the very natures of bias and prejudice are to affect our rational processes, at least in cases where a trigger is salient. It should be relevant to the integrity of a person’s judgements that they are implicitly biased in their assessment of facts with certain content. Even a class of judges who actively practice self-awareness may neglect deeper prejudices which lead them to unconsciously privilege the interests of a certain group over those of another. The history of oppression tells us it is reasonable in general for members of oppressed classes to doubt whether others can be properly impartial and sympathetic to their interests.
Rawls could accept that prejudice threatens the integrity of a person’s judgements. May we therefore disqualify such persons from the class of morally competent judges? To the extent that these phenomena affect a person’s capacity to be reasonable and impartial, it seems permissible to do so.
An alternative way of filtering bias and prejudice from our evidence base would be to adjust the class of morally competent judges so that oppressed social groups are fairly represented among them. If our concern is that judges will implicitly favor a dominant class, then requiring a diverse representation of backgrounds could be a balancing force. This would be especially worthwhile if we thought there were patterns of reasonableness specific and common to members of oppressed groups which makes them more adept at making certain kinds of moral judgements. For instance, some feminist theorists have argued for the thesis that living under oppression gives one privileged access to knowledge about matters concerning power and oppression.[1] Rawls writes that race and social class have no association with ‘coming to know’ (§2.4). Taking this remark seriously suggests that he would oppose a representation-based selection of the class of morally competent judges. However, at a separate point he does say that there is no “known” association (pp. 181). Use of ‘known’ here suggests that he might become open to the representation solution were it demonstrated that group membership does in fact bear on knowledge acquisition and moral decision-making. If so, it would make sense to adjust our evidence base to promote the fair representation of decision makers from different social backgrounds.
If implicit prejudice and epistemic privilege affect the reasonableness of a moral judgement, then we should take steps to account for them when selecting morally competent judges. My conclusion is that Rawls’s theory in the Outlinecan address these concerns by recognizing that features like gender, race, and social class are connected to moral cognition.
References
Rawls, John. “Outline for a Decision Procedure in Ethics,” Philosophical Review, 66 (1957).
- E.g., Janack, Marianne. “Standpoint Epistemology without the ‘Standpoint’?: An Examination of Epistemic Privilege and Epistemic Authority.” Hypatia, vol. 12, no. 2, 1997, pp. 125–39. JSTOR, http://www.jstor.org/stable/3810473. Accessed 30 Oct. 2023.
Nadia Miller 
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