from behind a veil of ignorance, in which they prescinded from all
knowledge of their own particulars that might give them an idea of how
such arrangements would impact on their own well-being.5 4 So, for
example, people might be required to imagine considering arrangements
about racial discrimination without knowing what race they belonged to
or arrangements about the state's relation to religion without knowing
what religion they belonged to.
Would it be appropriate to approach the principles underlying
socioeconomic rights from this perspective? Could one argue, for
example, that principles roughly similar to those that I mentioned at the
beginning of this Article-the principles of socioeconomic rights
that one finds in the UDHR, the ICESCR, or the South African
Constitution-might emerge from a contractarian theory as the upshot of
asking what people would agree to from behind the Rawlsian veil of
ignorance?
In light of what was said in Part IV, one might imagine a Rawlsian
response to the effect that a nonallocative theory simply does not
generate principles of that sort in this direct way. Rawls might say that
if justice requires welfare payments, for example, then that will emerge
in the course of the detailed elaboration of what is implied as a matter of
public policy by the very abstract propositions that are the subject matter
of decision in the original position. (We will examine this in Part VIII.)
But, he will say, it misconstrues the order of argument in Rawls's
conception to think that welfare can emerge as a matter of right as a result
of directly applying the idea of choice behind the veil of ignorance.
But actually that is not quite right, at least as far as Rawls's own
theory is concerned. The "First Principle" of Rawls's conception of
justice as fairness contains what he refers to as "equal basic liberties,"
under which heading we find many principles that are regarded as
human rights. 5 These include political liberties, freedom of speech and
assembly, liberty of conscience and freedom of thought, freedom of the
person, and freedom from arbitrary arrest.56 According to Rawls, these
are argued for directly using the idea of the original position.5 ' For
example, the argument for the right of freedom of conscience is that
''persons in the original position . . . . cannot take chances with their
liberty by permitting the dominant religious or moral doctrine to
54. For other uses of contractarian or quasi-contractarian approaches, see BRUCE
A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 327-28 (1980), and T.M.
SCANLON, WHAT WE OWE TO EACH OTHER 189-90 (1998).
55. RAWLS, supra note 4, at 53.
56. Id.
57. Id. at 181.
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