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5. Economics and Philosophy, 29 (2013) 349–369 C
Cambridge University Press
doi:10.1017/S0266267113000357
A SATISFACTORY MINIMUM
1
CONCEPTION OF JUSTICE:
2
RECONSIDERING RAWLS’S MAXIMIN
3
ARGUMENT
4
ALEXANDER KAUFMAN Q1
5
University of Georgia, USA
6
akaufman@uga.edu
7
In A Theory of Justice, John Rawls argues that it is possible to describe
8
an appropriate initial situation from which to form reliable judgements
9
about questions of justice.1
This initial situation, which Rawls calls the
10
‘original position’, models the practical implications of fundamental and
11
shared intuitions regarding justice, in particular intuitions concerning the
12
role that considerations regarding fairness, impartiality, and the avoidance
13
of arbitrariness should play in grounding judgements of justice. Once
14
these intuitions are modelled faithfully, Rawls argues, the structure of
15
the resulting choice problem dictates that rational persons occupying
16
the original position should apply a maximin rule of choice in choosing
17
principles of justice to regulate their joint social relations. As a result,
18
the structure of the choice problem narrows the set of acceptable choices
19
sufficiently to require the choice of a unique pair of principles. According
20
to this argument (the ‘maximin’ argument), then, the constitution of an
21
account of justice may accurately be represented as a problem of rational
22
choice under uncertainty. The maximin argument plays a central role
23
in Rawls’s justification of his account of justice in A Theory of Justice,
24
I would like to thank Richard Arneson, Keith Dougherty, Robert Grafstein, Martin van
Hees, Clark Wolf, and two anonymous referees for their comments on various drafts of
this article.
1 Rawls defines the original position as an ‘initial status quo which insures that the
fundamental agreements reached in it are fair’ (Rawls [1971] 1999: 15). Page references
to this book will be placed in the text.
349

6. 350 ALEXANDER KAUFMAN
and Rawls continued to emphasize the centrality of this argument to
25
the justification of his theory throughout his discussions of the original
26
position procedure, from the 1970s through his last published works.2
27
It is a striking irony that while A Theory of Justice is widely regarded
28
as the most influential work of political philosophy of the last century, the
29
maximin argument – which constitutes Rawls’s most salient justification
30
for the acceptance of his two principles of justice – has widely been
31
dismissed as unpersuasive. This argument is often described, even by
32
sympathetic interpreters, as ‘perhaps the single worst argument in Theory’
33
(Wolf 2000: 103–104). Indeed, as Rex Martin suggests, the credibility of
34
Rawls’s entire theoretical project has been undermined by his reliance
35
upon the apparently unpersuasive logic of the maximin argument (Martin
36
1985: 102).
37
The current unsympathetic view of the maximin argument is the
38
product of a number of apparently devastating critiques published
39
during the decade after the initial publication of A Theory of Justice.
40
Rawls’s argument, it was argued, relies upon an imprecise account of
41
the satisfactory minimum to be secured under the maximin rule. In the
42
absence of specific information regarding the minimum share of goods
43
that the choosers may secure for themselves, Brian Barry argues, it is
44
impossible to determine ‘whether . . . maximizing the minimum is a good
45
idea or not’ (Barry 1973: 98; see Buchanan 1980). Moreover, critics claimed,
46
the maximin rule is not the only or even the most attractive decision
47
rule that is available to rational persons facing choice under extreme
48
uncertainty. In particular, John Harsanyi argues that the appropriate
49
decision rule for choice in the original position is the Bayesian expected-
50
utility maximization rule (Harsanyi 1976). The objections thus criticized
51
both Rawls’s analysis of the choice under uncertainty problem facing
52
choosers in the original position and his choice of a decision rule to
53
regulate that choice. As will be discussed below, these objections have
54
strongly influenced the interpretations of Rawls offered by Ken Binmore,
55
Daniel Hausman, Michael McPherson, John Roemer, Robert Taylor and
56
Philippe van Parijs, among others (see Binmore 1994: 146; Hausman and
57
McPherson 1996: 155; Roemer 1998: 172–176; van Parijs 2003; Taylor 2011:
58
194). These objections have been particularly influential both because
59
they were offered by leading rational choice theorists and because they
60
appealed to assumptions widely shared among such theorists, such as
61
the view that one decision rule – the Bayesian criterion – is uniquely
62
appropriate to govern rational choice under uncertainty. While Rawls
63
could respond persuasively that the particular nature of choice in the
64
2 In his final statement of the argument for the principles of justice in Justice as Fairness: A
Restatement (2001), Rawls continues to emphasize the central role of the maximin rule in
his argument (see Rawls 2001: 96–110).

7. A SATISFACTORY MINIMUM CONCEPTION OF JUSTICE 351
original position – involving both extreme uncertainty and a choice
65
problem involving the selection of principles rather than goods – differed
66
from the conditions that characterize standard problems in rational choice,
67
criticism of the maximin argument on grounds persuasive to rational
68
choice theorists seriously undermined its credibility.
69
These objections were formulated more than thirty years ago and
70
have been more or less taken for granted since that time. I will argue,
71
however, that the maximin argument is more robust than has generally
72
been recognized and that this argument performs a number of important
73
functions in clarifying the nature and implications of Rawls’s argument
74
for justice as fairness. First, Rawls’s employment of the maximin rule as a
75
central element of his argument for the two principles underlines the fact
76
that justice as fairness is not an allocative theory designed to regulate the
77
division of a collection of goods among definite individuals.3
Rather than
78
providing support for an account of justice that focuses on (i) securing an
79
optimal distribution of expected utility or (ii) maximizing the share of the
80
least advantaged, the maximin argument ‘forc[es] us to consider what our
81
fundamental interests really are’ (Rawls 2001: 99). Second, the maximin
82
rule guides reflections in the original position regarding the choice of (i)
83
standards to determine the acceptability of basic social institutions, not
84
(ii) guaranteed shares of objects or goods. Rawls’s maximin justification
85
of the principles of justice therefore develops, not an account of the
86
value of goods or social surplus to be realized through application of the
87
principles, but rather an account of the reasons that require the adoption
88
of standards to regulate basic social institutions. Third, a conception of
89
justice capable of satisfying the maximin rule must establish conditions
90
that – taken as a whole – provide satisfactory protections for each
91
person’s fundamental interests. This focus on the realization of social
92
conditions that secure protections for fundamental interests establishes a
93
clear contrast between justice as fairness and consequentialist theories of
94
justice that aim primarily to compensate persons for deficits in well-being.
95
Finally, the maximin argument illustrates the potential of Rawls’s ethical
96
constructivism to identify structural features of moral questions that are
97
not obvious from a merely discursive presentation of those questions.
98
Once it is accepted that the original position constitutes the uniquely
99
appropriate standpoint from which to form judgements of justice, Rawls
100
argues, a careful consideration of the structure of the particular conditions
101
3 Justice as fairness ‘does not interpret the primary problem of distributive justice as one of
allocative justice . . . . [In allocative justice], ‘a given collection of goods is to be divided
among definite individuals with known desires and needs’ (77, my emphasis). The justice
of a distribution is determined by assessing the justice of the system as a whole and
examining ‘what individuals have done in good faith in light of established expectations’
(76).

8. 352 ALEXANDER KAUFMAN
of choice in the original position identifies the maximin rule as the
102
uniquely appropriate decision rule to govern judgements formed from
103
that standpoint.
104
In order to develop my argument, I will first sketch Rawls’s account of
105
choice under uncertainty, emphasizing the structure of the choice problem
106
that faces Rawls’s hypothetical choosers. I will then examine the objection,
107
developed by Brian Barry and Allen Buchanan, to Rawls’s claim that
108
a rational chooser in the original position will feel no need to secure
109
advantages above a guaranteed satisfactory minimum. The objections
110
presented by Barry and Buchanan that are discussed in this section
111
constitute the most influential examples of the argument that the maximin
112
argument relies upon an imprecise account of the satisfactory minimum
113
to be secured under the maximin rule. I will reject the assumption –
114
central to this objection – that the satisfactory minimum that persons
115
employing the maximin rule seek to achieve is a minimum level of primary
116
goods. Next, I will examine John Harsanyi’s criticisms of the maximin
117
choice criterion – the most influential example of the objection that the
118
maximin rule is not the only or even the most attractive decision rule that
119
is available to rational persons facing choice under extreme uncertainty,
120
Here, I will argue that Rawls provides persuasive arguments for rejecting
121
the view that the Bayesian criterion could be an acceptable criterion to
122
guide choices of fundamental importance under conditions of complete
123
uncertainty. Finally, I will argue that the application of the maximin rule
124
under the specialized social contract conditions of the original position
125
performs an important function in focusing deliberations on identifying
126
the central concerns that an acceptable conception of justice must address.
127
Both this final argument and the discussion of Harsanyi’s argument
128
respond to the objection that the maximin rule is not the most attractive
129
decision rule that is available to rational persons facing choice under
130
extreme uncertainty
131
1. THE MAXIMIN ARGUMENT
132
If we accept the claim that a just distribution of social goods should
133
not be determined by ‘factors [that are] arbitrary from a moral point of
134
view’ (63), Rawls argues, then we will agree that deliberations regarding
135
the nature and requirements of justice should be conducted from the
136
standpoint of an original position in which information is not available
137
regarding a society’s (i) endowments of resources, (ii) current level
138
of wealth and economic development and (iii) distribution of wealth,
139
income and power. If, in addition, we accept the claim that persons
140
should not be able to ‘tailor principles [of justice] to the circumstances of
141
[their] own case’ (16), Rawls argues, then we will agree that information
142

9. A SATISFACTORY MINIMUM CONCEPTION OF JUSTICE 353
regarding one’s own situated interests should not be available. Rawls
143
represents these informational constraints through the imposition of a
144
veil of ignorance that deprives deliberators of information regarding (i)
145
their society’s wealth and level of development and (ii) their situated
146
interests – in particular, information regarding both social endowments,
147
which include inherited wealth, social position and class advantages;
148
and natural endowments, which include talents, abilities, intelligence,
149
ambition, and other physical and psychological traits. In depriving the
150
choosers of information regarding their endowments, the original position
151
represents concretely the intuition that an appeal to the mere possession of
152
an inherited trait or status does not provide a satisfactory justification for
153
a claim to goods: justice should not, for example, reward people simply
154
for being intelligent or talented, although it may reward the employment
155
of those qualities (87–89).
156
In order to prevent all appeals to arbitrary factors in deliberations
157
about justice in the original position, Rawls argues, the veil of ignorance
158
must deprive persons not merely of knowledge regarding their specific
159
endowments, but also of knowledge regarding the nature of the society
160
they will occupy when they emerge from behind the veil. Otherwise,
161
arbitrary particular facts regarding a society’s level of development and
162
wealth at a particular point in history might determine the parties’
163
general judgements regarding the requirements of justice; and rational
164
choosers pursuing their own interests would be likely to base their choice
165
of principles on probabilistic assessments of the likely effects of the
166
principles chosen on relative advantage.
167
Rawls argues that it is rational for persons facing such a constrained
168
choice problem under uncertainty to employ a maximin rule of choice – a
169
rule that instructs the chooser to select that option that secures the most
170
‘satisfactory minimum’ state of affairs (133–135). While the maximin rule
171
is not appropriate for all, or even most, choices under uncertainty (133),
172
Rawls argues that it is the appropriate rule to regulate judgements behind
173
the veil of ignorance because of two features of that choice position.4
174
Rawls develops three arguments, the first being that probabilities are not
175
known in the original position. Rational choosers in such a position will
176
4 Rawls presents this argument in a series of sections in which he develops the argument for
the two principles in a pairwise comparison with the principle of average utility. The claim
that choosers in the original position would recognize the maximin rule as the appropriate
decision criterion to govern their choices, however, appears to be perfectly general and
not limited to comparisons between the two principles and the principle of average utility.
Rawls states explicitly in section 26 of Theory that the maximin rule should be employed
to govern the reasoning in all pairwise comparisons between the two principles and other
alternatives: ‘if the list of traditional views (section 21) represents the possible decisions,
these principles would be selected [from pairwise comparisons among principles on the
list] by the [maximin] rule’ (135).

10. 354 ALEXANDER KAUFMAN
be more concerned to secure a satisfactory minimum than to secure the
177
possibility of receiving greater advantages. If potential losses and gains
178
are both unlimited, Rawls asserts, it is rational to be more concerned to
179
avoid the worst possible outcomes than to insist upon preserving the
180
possibility of the greatest possible gains. In particular, if the choosers
181
are able to ensure that the minimum guarantee is an attractive one, they
182
may feel little need to ensure the possibility of securing significantly
183
greater advantages (135). Second, the choosers will insist upon ruling out
184
completely certain unacceptable outcomes. If, for example, slavery is a
185
real possibility – as it must be for persons behind a veil of ignorance – and
186
if a person can eliminate that possibility simply by choosing a principle
187
forbidding slavery; then, Rawls argues, any rational person would insist
188
upon the choice of that principle.
189
It is important to emphasize that Rawls does not claim that choosers
190
in the original position will seek to achieve the guarantee of a minimum
191
income or bundle of primary goods. Rather, Rawls argues that the
192
‘satisfactory minimum’ that choosers will attempt to secure constitutes
193
‘an adequate minimum conception of justice’ – that is, the conception
194
that provides the most satisfactory minimum guarantee of protections of
195
their fundamental interests (153). In particular, Rawls argues, the choosers
196
will choose a theory that: (i) minimizes invasions of fundamental rights,
197
(ii) promotes equal opportunity to develop and exploit their talents and
198
(iii) mitigates the inequalities that continue to exist in a social order that
199
ensures equal opportunity.
200
2. THE NATURE OF A SATISFACTORY MINIMUM
201
Brian Barry offers an influential objection to this argument that was
202
later elaborated by Allen Buchanan. Barry and Buchanan object to the
203
claim that a rational chooser in the original position will feel no need
204
to secure advantages above a guaranteed satisfactory minimum. In the
205
absence of information about the precise minimum share of goods that
206
may be secured by the maximin criterion, Barry argues, ‘we cannot say
207
. . . whether in any particular situation maximizing the minimum will be
208
a good idea or not’ (Barry 1973: 98). In addition, Buchanan argues, in
209
making such a claim, Rawls relies upon unrealistic assumptions about
210
diminishing marginal value. Both of these objections, however, focus
211
on the size and value of a share of goods to be assured under the
212
maximin rule. As a result, I will argue, both objections reflect a confusion
213
regarding the character of the satisfactory minimum that Rawls argues that
214
rational choosers will seek to secure through their choice of principles.
215
In particular, as I discuss below, both objections falsely assume that
216
the satisfactory minimum sought under the maximin rule is a share of
217
primary goods assured under the difference principle.
218

11. A SATISFACTORY MINIMUM CONCEPTION OF JUSTICE 355
2.1 A minimum threshold and diminishing marginal value
219
Barry argues that choosers in the original position will only view the
220
maximin rule as an attractive criterion if they can be sure that the
221
minimum share of primary goods attainable under the rule will be at least
222
equal in value to the threshold amount above which they care little for any
223
gains. Unless they can be certain that the attainable minimum falls at or
224
above this amount, Barry argues, the choosers cannot be certain whether
225
they prefer to maximize the minimum or to adopt some other principle
226
(Barry 1973: 97–98). In particular, if the guaranteed minimum falls below
227
the minimum threshold amount, the choosers will assign positive value
228
to gains above that minimum. Moreover, Buchanan asserts, Rawls’s claim
229
that a chooser cares little for any gain above a minimum stipend requires
230
an implausibly strong assumption about the diminishing marginal value
231
of goods (Buchanan 1980: 27). It may be plausible, Buchanan concedes,
232
to claim that there exists some minimum threshold amount above which
233
gains are of negligible value compared with the disutility of falling below
234
that minimum (27); but it does not follow that parties who are assured of
235
this minimum will care very little for gains above it. Moreover, Buchanan
236
asserts, Rawls cannot consistently assume such a level of diminishing
237
marginal value because Rawls, himself, attacks utilitarians for making
238
similarly extreme assumptions regarding diminishing marginal value.
239
Defenders of Rawls’s theory have responded to these objections
240
by arguing that choosers in the original position would focus on the
241
minimum guarantees secured by the principles because securing such
242
minimum protections will: (i) strengthen the bases of self-respect and
243
secure social stability (Cohen 1989: 736–750); (ii) elicit cooperation from all
244
members of society (Pogge 1989: 264); or (iii) vindicate intuitions reflected
245
in the structure of the original position (see Kymlicka 1990: 70).5
Such
246
responses, however, fail to identify the most serious shortcoming of the
247
objections offered by Barry and Buchanan.
248
These objections are unsound because they are based upon the
249
assumption that the satisfactory minimum that the choosers seek to
250
achieve is a minimum level of primary goods (see Buchanan 1980: 27).6
251
5 The justifications for the choice of the principles of justice ‘are mutually supported by
reflecting on the intuitions we appeal to in our everyday practices . . . . Because Rawls is
seeking such a reflective equilibrium, criticisms like those of Barry and Hare are overstated’
(Kymlicka 1990: 70).
6 The satisfactory minimum sought by the choosers under the maximin rule, Buchanan
claims, is simply a level of ‘primary goods covered by the Difference Principle’ (Buchanan
1980: 27). Similarly, Barry claims that the satisfactory minimum is simply a bundle of
primary goods including a set of liberties plus ‘a set minimum amount of wealth and
power’ (Barry 1973: 102). Barry therefore concludes that the formal argument for the
difference principle is simply ‘the result of applying the maximin criterion’ from the
standpoint of the original position (Barry 1989: 226).

12. 356 ALEXANDER KAUFMAN
Such a view conflates the idea of a satisfactory minimum with the idea of
252
a guaranteed minimum level of primary goods, because such a view assumes
253
that it is the difference principle that secures the satisfactory minimum
254
sought under the maximin rule by guaranteeing a minimum bundle of
255
primary goods to the least advantaged members of society. This view,
256
however, is contradicted by Rawls’s explicit account of the character of
257
the satisfactory minimum sought under the maximin rule.
258
2.2 A satisfactory minimum
259
The view that the satisfactory minimum sought by the choosers in the
260
original position is simply a share of primary goods – in particular, the
261
share of income or primary goods to be allocated to the least advantaged –
262
is so widely shared (see, for example, Arrow 1973: 251; Barry 1989:
263
213–217, 226–241; Binmore 1994: 146; Roemer 1998: 172–176; van Parijs
264
2003; Taylor 2011: 194) that it is remarkable to consider how completely
265
such a view is contradicted by Rawls’s account of the deliberations in the
266
original position. Rather than a share of primary goods, the satisfactory
267
minimum sought by the parties is ‘a satisfactory conception [of justice]’
268
that is ‘assured by the two principles in lexical order’ (135). A conception
269
of justice is defined as (i) ‘a set of related principles for identifying the
270
relevant considerations which determine . . . a proper balance between
271
competing claims’ (9) and (ii) associated priority rules (37–38, 266). During
272
deliberations in the original position, the parties focus on the task of
273
ranking conceptions of justice by their acceptability.7
In order to select the
274
most acceptable conception, the parties assess ‘a definite list of traditional
275
conceptions’ (102) and choose from that list the conception that constitutes
276
the most satisfactory ‘minimum conception’ (153) of justice. The task of the
277
choosers is therefore to assess the acceptability of conceptions of justice.
278
The most acceptable conception must (i) provide the most adequate
279
protections for citizens’ fundamental interests and (ii) establish the right
280
kind of priority between claims grounded in competing fundamental
281
interests. Thus, the parties in the original position focus, not on choosing
282
an allocation of primary goods to be assigned to the least advantaged, but
283
rather on assessing the character of different conceptions of justice – the
284
kinds of interests that they protect, the kinds of balance that they establish
285
between fundamental interests, and the kind of political and social world
286
that would result from the adoption of each conception.
287
The choosers thus apply the maximin rule to a very specific task –
288
they assess the substance and practical implications of a wide range
289
of proposed conceptions (e.g. justice as fairness, classical utility theory,
290
perfectionism, intuitionism, mixed conceptions), and they aim to choose
291
7 ‘Conceptions of justice are to be ranked by their acceptability’ (16).

13. A SATISFACTORY MINIMUM CONCEPTION OF JUSTICE 357
a conception that is satisfactory in the sense that it provides the
292
most satisfactory protections for the fundamental interests of citizens
293
corresponding to the ‘two coordinate roles’ of the basic structure of
294
society: (i) securing equal basic liberties and (ii) providing background
295
institutions that secure social and economic justice (53; see Rawls 2001:
296
48).8
In addition, and crucially, the choosers consider the priority ranking
297
that each proposed conception establishes between conflicting claims
298
grounded in these interests. Rawls emphasizes that a conception of
299
justice is defined not merely by the principles it contains, but by the
300
priority rules that determine the relative weight to be assigned to
301
the requirements of each principle.9
The priority that his conception
302
establishes among citizens’ fundamental interests is central to Rawls’s
303
argument that choosers in the original position would prefer that
304
conception to utilitarianism.10
Thus, a satisfactory minimum conception
305
is satisfactory because of the relation that it establishes between content
306
and structure.11
307
Rawls develops a number of arguments to support his claim that a
308
conception of justice consisting of his two proposed principles and the
309
associated priority rules constitutes a satisfactory minimum conception.
310
Justice as fairness provides the most satisfactory minimum protection
311
of liberty interests, Rawls argues, because it secures their priority over all
312
other fundamental interests. Rawls develops this argument by noting
313
that the acceptance of any conception of justice will generate ‘strains of
314
commitment’ – strains generated by the justified reservations of persons
315
subject to principles of justice regarding the effects of those principles
316
(153–154). The most severe strain on commitment, Rawls suggests, occurs
317
in cases in which some must ‘acquiesce in a loss of freedom . . . for the
318
sake of a greater good enjoyed by others’ (154). A conception of justice
319
8 Rawls provides the clearest statement of this point in Justice as Fairness: A Restatement,
when he writes that the parties in the original position act to secure the ‘fundamental
interests [of the persons that they represent] in their freedom and equality – in the
conditions adequate for the development and exercise of their moral powers and effective
pursuit their pursuit of their conception of the good on fair terms with others’ (Rawls
2001: 85).
9 ‘The assignment of weights is an essential and not a minor part of a conception of justice’
(37).
10 The assignment of priority ‘beyond the calculus of social interests’ to the first principle,
Rawls argues, supplies the quality of justice as fairness that ensures that the choosers will
recognize that that conception is ‘more effective than the principle of (average) utility in
guaranteeing the equal basic liberties’ (see Rawls 2001: 115).
11 Rawls emphasizes that ‘justification rests upon the entire conception,’ justification is a
matter ‘of everything fitting together into one coherent view’ (507). Justice as fairness
constitutes the most satisfactory conception of justice because it ‘combine[s] into one
conception the totality of conditions that we are ready upon due reflection to recognize as
reasonable in our conduct with regard to one another’ (514).

14. 358 ALEXANDER KAUFMAN
that parties to the choice ‘can rely on one another to adhere to’ (157)
320
must therefore provide the most complete protection possible against
321
this kind of injustice; and Rawls’s first principle, with its foundational
322
commitment to the inviolability of the person, responds to the strains of
323
commitment more effectively than any other viable alternative principle
324
because it insures completely ‘against the worst eventualities’ involving
325
losses of liberties (154). Thus, justice as fairness will minimize the strains
326
of commitment, Rawls argues, precisely because it guarantees the most
327
acceptable minimum protection of liberty interests.
328
Justice as fairness provides the most satisfactory protection of the
329
interest in the fairness in the distribution of social burdens and benefits because,
330
in addition to ensuring equal opportunity and fair compensation, it
331
provides the most satisfactory minimum guarantee regarding the social
332
bases of self-respect – and, Rawls argues, self-respect is an essential
333
primary good required for the successful pursuit of the individual’s
334
conception of the good.12
General affirmation of the second principle
335
– and thus shared agreement to an arrangement that secures basic
336
liberties and aims to mitigate the influence on life chances of factors
337
that are arbitrary from the moral point of view (see 156) – publicly
338
expresses the respect of each member of a well-ordered society for every
339
other member.13
This public expression of respect, Rawls notes, provides
340
support to the self-respect of members of society that would not be
341
provided under even a generous utilitarian conception that accepted
342
the liberty principle if that conception did not aim to mitigate arbitrary
343
influences on life chances.14
Thus, in choosing the principles of justice as
344
fairness, the choosers ‘insure their self-respect as it is rational for them to
345
do’ (156).15
346
12 ‘Unless we feel that our endeavors are respected by [others], it is difficult if not impossible
for us to maintain the conviction that our ends are worth advancing’ (155–156, see 386).
‘[P]erhaps the most important primary good is that of self-respect . . . . Without it nothing
may seem worth doing, or if some things have little value for us, we lack the will to strive
for them. All desire and activity becomes empty and vain, and we sink into apathy and
cynicism. Therefore the parties in the original position would wish to avoid at any cost the
social conditions that undermine self-respect. The fact that justice as fairness gives more
support to self-esteem than other principles is a strong reason for them to adopt it’ (386).
13 Under the publicity condition, members of a well-ordered society fully understand and
accept ‘the complete justification of justice as fairness in its own terms’ (Rawls 2001: 121).
‘[I]n a society well ordered by the principles of justice as fairness, . . . [e]quality is present
at the highest level in that citizens recognize and view one another as equals’ (Rawls 2001:
132).
14 ‘In a public utilitarian society men, particularly the least advantaged, will find it more
difficult to be confident of their own worth’ (158).
15 In Justice as Fairness, Rawls reformulates this argument to justify the choice of the two
principles in preference to a mixed conception that Rawls refers to as the principle of
restricted utility. Under that principle, the basic structure is ‘to be arranged so as to

15. A SATISFACTORY MINIMUM CONCEPTION OF JUSTICE 359
It is the conception taken as a whole that constitutes the satisfactory
347
minimum: the requirements of the chosen principles ‘are tied together as
348
one conception of justice which applies to the basic structure of society as
349
a whole’ (136; Rawls 2001: 99),’ and the fact that this conception secures a
350
‘satisfactory political and social world’ – not merely a bundle of goods,
351
resources, and protections – ’is crucial for the argument’ (Rawls 2001:
352
100). The choosers have a rational interest in ensuring that each member
353
of society is guaranteed both the liberty and the effective capacity to
354
pursue his or her conception of the good.16
Justice as fairness provides
355
the most satisfactory protection of this interest because of the combined
356
effect of its basic guarantees, which unite the assurances that (i) liberty
357
interests will be assigned priority over all other social claims; (ii) arbitrary
358
factors will not justify inequalities of opportunity or social status; and
359
(iii) society will honour legitimate expectations of fair compensation (273–
360
277). Rawls refers to this combination of guarantees, and not to a minimum
361
guaranteed income or bundle of primary goods, when he argues that a
362
chooser in the original position would ‘care very little, if anything, for
363
what he might gain above the minimum’ guaranteeable level (134).17
364
It could be argued, however, that Barry’s and Buchanan’s objections
365
can be reformulated in a manner that avoids conflating of the idea
366
of a satisfactory minimum with a guaranteed level of primary goods
367
supplied under the difference principle. According to this view, both
368
maximize average utility consistent, first, with guaranteeing the equal basic liberties
(including their fair value) and fair equality of opportunity, and second, with maintaining
a suitable social minimum’ (Rawls 2001: 120). In the reformulated argument, Rawls argues
that satisfactory minimum protection of the interest in fairness in the distribution of
goods requires the maintenance of a social minimum protections ‘derive[d] from an idea
of reciprocity appropriate to political society so conceived’ (Rawls 2001: 130). While the
substance of the argument is somewhat altered in this reformulation, its form remains
unchanged – Rawls, that is, continues to argue that rational choosers in the original
position would choose his two principles over the alternative by determining which
principle(s) secured the most satisfactory minimum protections of fundamental interests
as required by the maximin rule: to justify the claim that the choosers would prefer
Rawls’s two principles to the principle of restricted utility, ‘we argue that the second
condition of the maximin rule is fully satisfied, or nearly enough so to provide an
independent argument for the principles’(Rawls 2001: 120).
16 ‘[T]he parties regard themselves as having certain fundamental interests that they must
protect . . . . They must try to secure favorable conditions for advancing these [interests]’
(160).
17 Rawls concedes that ‘[t]his important point about the guaranteeable level . . . is never
expressly stated in Theory’, and that the failure of A Theory of Justice to make this
point explicit ‘led some to think of the guaranteeable level as a natural, nonsocial, level
below which individual utility drops to negative infinity.’ ‘[A]s the text shows,’ Rawls
emphasizes, ‘this was not the intention’ (Rawls 2001: 100). The principles ‘are to guarantee
equally for all citizens the social conditions necessary for the adequate development and
full and informed exercise’ of both their conceptions of the good and the sense of justice
(Rawls 2001: 112).

16. 360 ALEXANDER KAUFMAN
the first objection – that the maximin rule will only be attractive
369
if the attainable minimum exceeds some threshold level of value – and
370
the second objection – that the maximin argument is grounded in an
371
implausible assumption about the diminishing marginal value of wealth
372
and other primary goods – could be reformulated to refer to the value of
373
the protections of fundamental interests provided by the two principles
374
rather than to the value of a bundle of primary goods.
375
A reformulation of the Barry and Buchanan objections, however,
376
would require a precise estimate of the value of the value of the
377
interests protected by the two principles – and no such precise estimate
378
is available, because the two principles do not guarantee the provision
379
of any particular social goods, resources, or level of welfare. The claim
380
that the two principles secure the most satisfactory minimum protection
381
of citizens’ fundamental interests, in fact, involves a characterization of
382
the principles’ adequacy in addressing fundamental interests and not a
383
description of its sufficiency in guaranteeing resources or welfare.
384
Both the Barry and the Buchanan objections, however, depend upon the
385
idea of a minimum guarantee of a bundle of objects with specifiable and
386
determinate values. Thus, in order to illustrate his claim that the maximin
387
rule is attractive only if a threshold level of value can be achieved, Barry
388
offers an example in which the maximin rule is unattractive because only
389
ten apples can be provided to each person, while the threshold level
390
with respect to apples is twelve (Barry 1973: 98). Since the guaranteeable
391
minimum is below the threshold level, Barry argues, the maximin rule
392
would be less attractive than a rule requiring that we give twelve apples
393
to as many people as possible while allowing a few people to receive fewer
394
than ten apples.
395
The fundamental interests protected by a satisfactory minimum
396
conception of justice, however, are unlike apples or other material goods
397
because those interests are not objects or goods with a definitive form and
398
specifiable value. Nor is it plausible to suggest that some unique threshold
399
exists below which the protection of these interests would become so
400
much less desirable that members of society would necessarily judge that
401
the decision rule requiring the protection of fundamental interests should
402
be replaced by some other rule (e.g. a rule requiring maximizing expected
403
utility). To see why this is true, consider the following example. A
404
stable and homogeneous society initially guarantees a satisfactory system
405
of equal basic liberties. This commitment to the protection of liberties
406
reflects the generally shared judgement among members of the society
407
on due reflection (on the basis of arguments similar to those that Rawls
408
presents) that a just society should ensure the most satisfactory feasible
409
minimum protection of fundamental interests. After the society has been
410
destabilized by violent conflict resulting from religious discord, however,
411
the level of liberty protections that can be sustained is more limited than
412

17. A SATISFACTORY MINIMUM CONCEPTION OF JUSTICE 361
the original system of protected liberties – people must submit to metal
413
detector tests, invasive searches, curfews, and other restrictions on liberty.
414
The level of protection for liberties, in fact, falls below the threshold of
415
acceptability for many members – perhaps a majority – of the society.
416
Would such circumstances justify abandonment of the decision rule that
417
required selecting principles that protect fundamental interests? The short
418
answer would appear to be no. Due reflection – a careful consideration of
419
all relevant considerations under conditions conducive to sound reflection
420
subject to none of the usual errors in reasoning – justified the adoption
421
of the maximin decision rule. Members of society might be justified in
422
abandoning this decision rule on the basis of consideration relevant to the
423
grounds for the choice of that rule – for example, if Buchanan could justify
424
his claim that the reasoning supporting the argument for the maximin
425
rule relied upon an implausible assumption about diminishing marginal
426
utility. The fact that social conditions prevent the optimal protection of
427
one of the set of fundamental interests whose protection is required by the
428
decision rule, however, is not a consideration relevant to the reasoning
429
that justified the adoption of the decision rule.
430
Even a reformulated version of Barry’s objection fails to ground a
431
relevant objection to the maximin argument because a choice problem
432
involving the selection of principles differs in character from a choice
433
problem involving the selection of a minimum guaranteed supply of
434
goods. In Barry’s example involving a minimum supply of apples, apples
435
are determinate goods with identifiable value, and the value of the bundle
436
of apples that can be supplied under the decision rule is a consideration
437
directly relevant to the justification of the decision rule itself. If the value
438
of that bundle falls below a certain threshold, that fact could – as Barry
439
notes – justify the employment of a different decision rule. The decision
440
facing persons in the original position, however, involves the choice of
441
principles of justice. A principle of justice is not an object or good, but
442
rather a standard that can be employed to assess the acceptability of
443
institutions, legislation, and policy. The choice of such a standard reflects
444
an underlying judgement regarding the kinds of reasons that can justify
445
an institution, legislation or policy. The choice of a principle requiring
446
the protection of liberty interests, for example, reflects the judgement
447
that the fact that a policy or piece of legislation promotes or protects
448
liberty constitutes a sufficient reason to support or adopt that policy or
449
legislation. Such a choice is justified, then, not by consideration of the
450
value of the objects supplied to persons under the principle, but rather by
451
consideration of the reasons that justify affirmation of the principle. The
452
value realized or lost as a consequence of adopting the principle may be
453
relevant – for example, if adopting a principle would destroy all social
454
value – but the mere fact that persons would assign a lesser value to a form
455
of implementation of a principle that they still endorse on due reflection
456

18. 362 ALEXANDER KAUFMAN
would not count as a consideration justifying the abandonment of the
457
decision rule that led to the choice of the principle. Since Barry’s argument
458
necessarily assumes that the objects chosen in the decision procedure have
459
a specific form and a specifiable value, his objections cannot readily be
460
reformulated to apply to a choice problem in which the choice focuses on
461
principles rather than goods.
462
The objections raised by Barry and elaborated by Buchanan
463
nevertheless continue to influence many leading interpretations of
464
Rawls’s work. Many leading scholars have been influenced to identify
465
the maximin rule with the difference principle and to view the choice
466
in the original position as concerned solely with the distribution of
467
goods over persons. John Roemer, for example, claims that the task of
468
choosers in the original position is ‘the choice of [a] distribution [of goods]
469
from behind a veil of ignorance’ (Roemer 1998: 177). Ken Binmore18
and
470
Philippe van Parijs19
conflate the idea of a satisfactory minimum under
471
the maximin rule with a guaranteed level of primary goods under the
472
difference principle. Daniel Hausman and Michael McPherson claim that
473
the choosers in the original position would design social and political
474
institutions ‘to advance maximally the interests of the worst-off group’
475
(Hausman and McPherson 1996: 155). And Robert Taylor, in his recent
476
book on Rawls, claims that the reasoning of the choosers in the original
477
position can be summarized as follows: (i) the difference principle is
478
the maximin rule among distributive principles; (ii) the maximin rule is
479
rational under three conditions; (iii) these conditions hold in the original
480
position; therefore (iv) the parties in the original position should choose
481
the maximin rule among distributive principles (Taylor 2011: 194). The
482
analyses of Rawls’s arguments presented by these leading scholars – all of
483
whom cite Barry’s The Liberal Theory of Justice as a leading interpretation
484
of Rawls’s arguments – are thus distorted by fundamental confusions
485
regarding the substance and role of the maximin argument deriving from
486
Barry’s critique.
487
3. MAXIMIN AND CHOICE UNDER UNCERTAINTY
488
Harsanyi’s objection focuses on the plausibility of the maximin rule
489
as a decision criterion for rational choice under uncertainty. While
490
the maximin rule was viewed as an optimal decision rule when the
491
issue of rational choice under uncertainty first attracted attention,
492
18 Binmore asserts that ‘[the] ‘difference principle’ is little more than a direct application of
the maximin criterion’ and refers to ‘the maximin criterion that Rawls calls the difference
principle’ (Binmore 1994: 176).
19 Van Parijs conflates the requirements of the difference principle with the maximin rule,
stating that the difference principle ‘amounts to asking that the minimum of some index
of advantage should be maximized’ (van Parijs 2003: 200).

19. A SATISFACTORY MINIMUM CONCEPTION OF JUSTICE 363
Harsanyi claims, the limitations of that approach quickly became apparent
493
(Harsanyi 1976: 38–39). Consider, he suggests, a choice between option
494
A, in which a New York City resident interviews only for mediocre jobs
495
in New York, and option B, which involves the opportunity to interview
496
for a superior job in Chicago. The worst outcome that could result from
497
choosing option A is mediocre employment; but the worst outcome that
498
could result from choosing option B is death in a plane crash. A maximin
499
rule would therefore require that a rational person must always select
500
option A. Since the maximin decision rule produces such implausible
501
results, Harsanyi concludes, it cannot provide an appropriate decision
502
criterion for rational choice under uncertainty (Harsanyi 1976: 39–43).
503
Rather, the appropriate decision rule is the Bayesian expected-utility
504
maximization rule.
505
Note, however, that this objection is not responsive to Rawls’s
506
argument that maximin is an appropriate decision rule only under the
507
carefully defined conditions of uncertainty that hold in the original
508
position – extreme conditions of uncertainty in which the choosers possess
509
no information at all about probabilities. Harsanyi’s example merely
510
demonstrates that maximin is an inappropriate decision rule for choices
511
under conditions in which choosers have a great deal of information
512
about probabilities, although the precise probability of each outcome is
513
not known. Harsanyi’s objection, then, does not address, much less refute,
514
Rawls’s arguments that the maximin rule is the appropriate criterion for
515
rational choice under the conditions of extreme uncertainty that exist in
516
the original position.
517
Harsanyi’s objection, however, is motivated by the view that the
518
criterion for rational choice does not and should not vary under
519
differing choice conditions.20
According to such a view, an argument
520
demonstrating that maximin is an inappropriate decision rule for
521
any particular category of rational choices necessarily establishes that
522
maximin is an inappropriate decision rule for all categories of rational
523
choices. If this view is accepted, Harsanyi’s example counts decisively
524
(i) against Rawls’s maximin argument and (ii) in favour of the claim
525
that the Bayesian expected-utility maximization rule is the uniquely
526
appropriate decision rule for choice under uncertainty. This strand of
527
Harsanyi’s argument has been influential, particularly among rational
528
choice theorists (see Goldman 1980; Hardin 1988: 135; Barry 1989: 215;
529
Hare 1989: 107). Harsanyi’s argument is, however, vulnerable to a number
530
of serious objections.
531
It is important to note, first, that the claim that expected-utility
532
maximization is the uniquely appropriate decision rule for choice under
533
20 ‘I cannot see how anyone can propose the strange doctrine that scale is a fundamental
variable in moral philosophy’ (Harsanyi 1976: 60).

20. 364 ALEXANDER KAUFMAN
uncertainty is ‘highly controversial’ (Hausman and McPherson 1996: 31)
534
among rational choice theorists (see Ellsberg 1961; Allais 1979; Sen 1985;
535
Levi 1986; McClennen 1990). As Daniel Hausman and Michael McPherson
536
note, talk of maximizing expected utility ‘is obscure when probabilities
537
and even the range of possible outcomes are not known’ (Hausman and
538
McPherson 1996: 31). Decision theorists such as Isaac Levi argue instead
539
that it would be rational for a person choosing under conditions of
540
uncertainty to follow a rule requiring the choice of only those options
541
that would produce the highest security level when combined with at
542
least one hypothesis that is true if that option is chosen (Levi 1984: 132;
543
see Levi 1967, 1974, 1980). According to this view, when expected utility
544
considerations fail to require the choice of any particular option, reliance
545
upon a secondary decision criterion is rational. Indeed, as Erik Angner
546
notes, the information available to the parties in the original position
547
underdetermines rational choice in precisely the manner described in
548
Levi’s argument (see Angner 2004: 16).21
The parties know nothing
549
about (i) the distribution of wealth and other resources or (ii) their own
550
conceptions of the good. They therefore lack sufficient information to
551
assign utilities to outcomes, much less to maximize expected utility, so
552
that reliance upon a secondary decision criterion is rational.
553
A number of leading defences of the maximin argument, including
554
those presented by Gail Corrado (1980) and Binod Agarwala (1986), have
555
offered similar responses to the objections raised by Harsanyi – they have
556
argued, that is, that the information available to the choosers is inadequate
557
to ground calculations of expected utility, and that under such conditions
558
maximin reasoning is a rational alternative. While these theorists argue
559
that the Bayesian criterion may be supplemented or replaced in conditions
560
in which that criterion cannot be applied or its meaning is obscure, Rawls
561
presents arguments in Sections 27 and 28 of A Theory of Justice that provide
562
a persuasive basis for rejecting altogether the view that the Bayesian
563
criterion could be an acceptable criterion to guide choices of fundamental
564
importance under conditions of complete uncertainty.
565
First, the Bayesian criterion is objectionable as a criterion to guide
566
significant social choices under conditions of complete uncertainty
567
because choosers under such conditions have no basis for estimating the
568
subjective probabilities necessary in order to calculate expected utility,
569
while assessments of probability that are to serve as the basis for rational
570
decision ‘must have an objective basis’ (149). The necessity of such an
571
objective basis becomes more urgent as the importance of the judgement
572
increases. A decision involving the choice of principles which will
573
determine the extent to which the most fundamental of human interests
574
21 ‘Since expected utility considerations fail, agents may perfectly rationally resort to
maximin reasoning when choosing between [options]’ (Angner 2004: 16).

21. A SATISFACTORY MINIMUM CONCEPTION OF JUSTICE 365
receive protection would clearly involve the highest degree of urgency.
575
This urgent need cannot be met in conditions of complete uncertainty.
576
Even if it were possible to assign an equal probability to an unknown
577
number of outcomes, the choosers would have no objective basis for
578
that probability assignment. As Samuel Freeman notes, if the choosers
579
lack sufficient information to assign any set of probabilities to outcomes,
580
they also lack sufficient information to assign equal probabilities (see
581
Freeman 2003: 15–18). Parties forming judgements regarding fundamental
582
questions of justice under conditions of complete uncertainty would
583
therefore lack a sufficient informational basis to apply the principle of
584
maximizing expected utility.
585
In addition, an individual who employs an expected utility criterion
586
in conditions of complete uncertainty cannot base her judgements upon
587
a unified system of preferences. While expected utility calculations are
588
usually derived from the perspective of an individual with a single
589
unified system of preferences, a chooser in the original position does
590
not have ‘aims which he counts as his own’ (150). Any calculation of
591
expected utility from this perspective must therefore incorporate the
592
hypothetical utility functions of many individuals. An argument for the
593
employment of the Bayesian criterion, then, would have to assume that
594
reliable interpersonal comparisons of utility can be made – a highly
595
controversial view.22
Even putting that problem aside, however, Rawls
596
argues persuasively that expected utility calculations based upon the
597
assumption that one may turn out to be any one of a number of persons
598
are of doubtful validity (150). In particular, it is not clear what scale of
599
value one should employ in evaluating the worth of another person’s
600
way of life and system of ends – should one apply one’s own scale of
601
values or the scale of values favoured by that person? Conflicting claims
602
of justice arise not merely because people want similar sorts of things but
603
because their conceptions of the good life differ. Even the choosers in the
604
original position are aware that their final ends differ and are subject to
605
no commonly acceptable criterion of value. Thus, no plausible criterion
606
of value is available to provide a basis for attempts to calculate expected
607
utility from a standpoint of complete uncertainty.
608
This problem is particularly acute for an argument in favour of the
609
Bayesian criterion of choice, Rawls notes, because such an argument
610
requires a unified account of the chooser’s expectations. Such an argument
611
must therefore, it would seem, assume that everyone thinks of themselves
612
as having the same utility function. The argument for the Bayesian
613
criterion is thus based upon a conception of the person as having no
614
determinate independent character of will. If we judge that it is more
615
22 See Hausman and McPherson (1996: 67–116) for a helpful discussion of some of the
problematics of interpersonal comparisons of utility.

22. 366 ALEXANDER KAUFMAN
plausible to view persons as having higher order interests and preferred
616
ends, then we must reject the argument for the Bayesian criterion (151–
617
152).
618
In the absence of further argument, then, the balance of reasons would
619
appear to weigh against the conclusion that the Bayesian criterion is the
620
appropriate criterion to guide choice under the extreme uncertainty of the
621
original position. Rather, it seems more plausible to argue with Rawls
622
that rational choosers under conditions of extreme uncertainty who (i)
623
are more concerned to secure a satisfactory minimum than to secure the
624
possibility of receiving greater advantages and (ii) insist upon ruling out
625
completely certain unacceptable outcomes (iii) should therefore be guided
626
in their choices by the maximin rule.
627
4. CONCLUSION
628
In interpreting Rawls’s arguments for the principles of justice, it is
629
essential to keep in mind the limited role of the maximin rule in Rawls’s
630
formal argument. In developing this argument, Rawls represents –
631
in the form of his decision procedure – ‘weak and widely shared’
632
considered judgements regarding the qualities that should characterize
633
fair conditions for resolving questions of justice. The character of the
634
model generated through this constructivist process, Rawls argues,
635
reveals important qualities of the process of judgement in questions
636
of justice. The decision problem of moral deliberators faced with such
637
questions, Rawls concludes, has the formal structure of a problem of
638
choice under uncertainty, and the specific character of this particular
639
choice problem justifies the judgement that a particular decision rule –
640
the maximin rule – is uniquely appropriate to regulate the judgements
641
of the choosers. The maximin rule recommends the choice of the most
642
satisfactory minimum alternative and – since the task of the choosers is to
643
select a set of principles of justice that constitute an acceptable conception
644
of justice – the maximin rule in this case recommends the selection of those
645
principles that, taken together, constitute the most satisfactory minimum
646
conception of justice.
647
This sketch of the choice process in the original position describes
648
the full extent of the operation of the maximin rule in Rawls’s argument.
649
The maximin rule neither justifies nor describes the operations of
650
the difference principle, nor does it apply directly to any substantive
651
questions of justice or morality. It certainly does not require that a just
652
society must maximize the well-being or share of goods of the least
653
advantaged. Rather, the maximin rule is simply a rule for choice that is
654
appropriate, Rawls argues, to guide reflections regarding the choice of
655
principles of justice under the particular conditions that characterize the
656
original position.
657

23. A SATISFACTORY MINIMUM CONCEPTION OF JUSTICE 367
While the role of the maximin rule in Rawls’s argument is thus more
658
limited than has often been appreciated, the rule – as the choosers apply
659
it under the special circumstances of the original position – nevertheless
660
performs a number of important functions in Rawls’s argument. In
661
particular, Rawls argues, the process of judgement involved in applying
662
the rule under the specialized social contract conditions of the original
663
position is well-designed to focus the choosers on identifying and
664
protecting their real interests. In addition, the choosers’ complete lack
665
of information regarding the social position that any one of them may
666
occupy after the veil is lifted justifies the choosers’ rational judgement
667
that satisfactory protections of fundamental interests must be provided to
668
all members of society. Application of the maximin rule under conditions
669
of uncertainty, Rawls argues, ensures that even mutually disinterested
670
rational choosers must select principles that require that social institutions
671
are to be constituted in a manner than abstains ‘from the exploitation
672
of the contingencies of nature and social circumstance’ (156). Thus,
673
application of the maximin rule leads to the adoption of principles that
674
can be seen as ‘a fair undertaking between the citizens as free and equal
675
with respect to these inevitable contingencies’ (Rawls 2001: 124).
676
If it is assumed that (i) Rawls’s theory is designed simply to translate
677
the requirements of maximizing rationality into moral principles; and
678
(ii) the central guarantee of Rawls’s theory is the difference principle,
679
then the theory will appear to focus primarily on the redistribution of
680
income or resources according to a rigid formula. Once these confusions
681
have been corrected, the theory can be brought into sharper focus. In
682
protecting basic liberties, guaranteeing equal opportunity and a fair
683
distribution of social goods, and establishing the proper priority relation
684
between these interests, Rawls argues, the theory ensures the realization
685
of a ‘satisfactory political and social world’ (Rawls 2001: 100) – a world
686
in which basic liberties are respected, all persons are guaranteed the
687
opportunity to succeed to the extent permitted by their talents, and the
688
society’s public conception of justice affirms the value of each person
689
as a moral being and not merely as a productive factor in the market.
690
The fact that the satisfactory minimum constitutes a satisfactory form of
691
social life, and not merely a bundle of goods, Rawls asserts, ‘is crucial for
692
the argument’ (Rawls 2001: 100). It is this satisfactory form of social life
693
to which Rawls refers when he suggests that it will not be worthwhile
694
to jeopardize the minimum guarantee for the possibility of further
695
gains.
696
The principal critiques that I have assessed and rejected have played
697
an important role in shifting attention away from some of Rawls’s central
698
arguments in A Theory of Justice and have obscured the function and
699
significance of the maximin argument in Rawls’s justification of the two
700
principles of justice. Addressing the confusions in the interpretation of
701

24. 368 ALEXANDER KAUFMAN
Rawls’s maximin argument, then, should make possible a more balanced
702
appraisal of Rawls’s overall argument.
703
REFERENCES
704
Agarwala, B. K. 1986. In defence of the use of maximin principle of choice under uncertainty
705
in Rawls’s original position. Indian Philosophical Quarterly 13: 250–254.
706
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