Abstract

In this work we address the proposition that because it emerges from the contract tradition and so relies upon the assumption of mutual advantage, John Rawls' theory of “Justice as Fairness” cannot accommodate persons with severe mental and/or physical impairments. We respond to this criticism by proposing a revision to Rawls' contracting situation, the Original Position . Specifically, we propose to supplant the traditional understanding of mutual advantage—which we agree does constitute the necessary and sufficient condition for deliberation to come about in the OP, as it stands—with a more modest alternative: a Hobbes-inspired concept that we call minimal mutual advantage. We argue that when this revision is introduced into Justice as Fairness, it reconciles admirably the seeming tension between contractarianism’s insistence on the rational, self-interested actor and the reality of societies in which not all members are capable of meeting a standard of reciprocity understood in terms of productive contributions to the general well-being. In so doing, minimal mutual advantage renders indistinguishable the disabled from the able in the OP, allowing Justice as Fairness to capture successfully problems of disability while leaving intact the more appealing aspects of liberalism that other approaches would dismiss.