By combining information garnered from the original description of the basic structure, from the application of the institutional principles to background justice and from the 4-stage sequence, we are now able to devise a more thorough description of the application of the institutional principles and of the basic structure. We can describe the application of the institutional principles according to a 3-step process.
5.1. The 3-step application of the institutional principles
1. Direct application of the institutional principles to the basic structure:
1.1. Direct application of institutional principles to political form and economic system;
1.2. Direct application of institutional principles to constitution;
1.3. Direct application to legislation.47
2. Indirect application of institutional principles to non-basic structure (by applying to its public rules).
3. Application of institutional principles to the evaluation of the outcome of steps 1 to 2.
Step 1 describes the direct application of the institutional principles to the basic structure. This consists of 3 stages, where each stage leads to and helps to determine the next. In the first stage (1.1) the institutional principles determine the political form and economic system most compatible with the institutional principles. The second stage (1.2), determining the constitution, follows from the first stage as the first stage will establish the need for a constitution and the need to enshrine elements of the political form and economic system in the constitution. The constitution is determined both (1) directly through an application of the institutional principles and (2) through constraints determined by the choice of political form and economic system in
47 Note, the institutional principles seemingly only apply directly to these institutions where they are relevant to the distribution of primary social goods, thus even elements of these institutions which do not directly influence this distribution are included as part of non-basic structure, not the basic structure.
the first stage. Laws and policies which affect distribution are determined in the third stage (1.3) by the institutional principles and the constitution.
In the second step, the institutional principles apply indirectly to subjects outside of the basic structure. This step is not an independent step but leads from and is determined by the first step. It is not so much that the institutional principles are actually applied to subjects besides the basic structure. Rather, by applying the institutional principles to the basic structure a fair context (background justice) is set up which constrains individual behaviour and the internal functioning of institutions. Thus individual behaviour according to this step does not need to live up to the institutional principles, however, the institutional principles through the constitution and through legislation determine public rules which limit what individuals and associations are able to do.
In the last step, step 3, the institutional principles are used to evaluate the fairness of the outcomes of steps 1 and 2. Although we are likely to achieve fair outcomes by following the procedure of step 1 (which would necessarily imply step 2), we would need to monitor whether the application of the institutional principles to the basic structure (and thus indirectly to the non-basic structure) does result in outcomes that are genuinely fair. If these outcomes were found to be unjust, they would need to be modified so that they would genuinely live up to the ideal demanded by the institutional principles.
5.2. The basic structure
The basic structure seems to consist of the institutions of political form, the economic system, the constitution and legislation. These institutions are fair if the ways in which they assign rights and distribute social goods are regulated by the institutional principles. Other institutions, specific policies and laws, associations and behaviours such as the family, firms and universities are only included in or affected by the basic structure in so much as the public rules applicable to them are determined and regulated by the application of the institutional principles to the institutions of the basic structure. The
institutional principles thus only apply to the public rules of these institutions.
As Rawls is purposefully vague in his description of the basic structure and as there are inconsistencies with what is and what is not included as part of the basic structure, I would not claim that this description of the basic structure is definitive. Thus I would agree that there are other convincing ways of
describing the basic structure.48 However, this description of the basic structure is feasible as it seems to follow logically from our analysis of background justice, the 4-stage sequence and the problem of the family.
Admittedly even this description remains rather vague, however. I do not think that it is clear, for example, precisely what the public rules of an
institution are, or how other institutions I have mentioned as implicitly part of the basic structure, such as the judiciary fit into the 3-step process. Most
48 Examine Cohen’s description (1997: 18, fn.36 and 2000: 136-140) of the ambiguity of the basic structure defined coercively or noncoercively, or Pogge’s claims (1989: 22-25) that the basic structure can be understood widely or narrowly.
important for the purposes of this thesis, however, is not establishing an exact definition of the basic structure but a better understanding of whether personal choice is included as part of the basic structure. As we have seen, personal choice does not seem to be determined or evaluated by the institutional principles either directly or indirectly. It is not evaluated directly as it is not part of the basic structure. However, even when it comes to the indirect application of the institutional principles to individual behaviour, the
principles apply to the public rules of an institution and thus seemingly not to personal choice.