Seite 27 [27]
EQUAL RIGHTS BETWEEN SEXES
open to anyone. This is the first basic condition; the second is that any inequal¬
ity should bring some benefits to everyone.* In other words, it is no longer
acceptable for members of a group to suffer any, even a slight disadvantage,
whatever the benefit to others. Stating this, Rawls is confronting Bentham and
the utilitarians. Thus, he considers the principle of social difference to only be
conceived within the framework of total freedom and in sucha way that it does
not put any group in disadvantage.
In conclusion, Rawls believes it seems reasonable and generally acceptable
that principles should be chosen in order that no one is disadvantaged by
natural or social circumstances. The concept of “original position” he coined
“is understood as a purely hypothetical situation characterized so as to lead to
a certain conception of justice”. The realization of this in turn presupposes
a state of equilibrium in which the interests of different social positions, ranks,
etc. are balanced, which means that the principles of justice ensure an adequate
level of prevalence of each of these interests (relative to one another). This is
the idea of the so-called “justice seen as fairness”.*°
The criterion of social justice does not include discrimination on the basis of
protected property, i.e. discrimination based on sex, origin, race, religion, colour,
etc. There is no doubt, however, as stated above, that both gender and cultural
differences can create wholly natural (biological) or less natural (hereditary)
living conditions, which are nonetheless unfavourable. Disadvantages that ad¬
versely affect the chances of a particular group, and deprive the members of a
particular group of their basic rights, can posteriorly be compensated for in
order to help members of society have access to equal opportunities (tutoring,
free education, early retirement, scholarships for women who have children, etc.
— see also Article 157 TFEU®*), i.e. the objectively just starting position (with
regards to Rawls’ “original position is the appropriate initial status quo”**). But
these are not related to performance, so from that point it is only their knowl¬
edge, insight, learning, decisions that further their place or position in the social
space that is most suitable for them.
Illustrated by the chosen subject, it is precisely the constitutional principle
of gender equality that de jure means equal rights in all spheres of life, that is,
fully equal conditions and opportunities. It is however clear that living con¬
ditions and the biological differences between the two genders are radically
different, noting in particular a woman’s ability to give birth. These natural
differences should however not affect the living conditions of women and men
34 T6éth: John Rawls, n.d.
35 Rawls: A Theory of Justice, 104.
36 T6éth: John Rawls, n. d.
37 http://eur-lex.europa.eu/legal-content/HU/TXT/?uri=LEGISSUM%3Ac10823 (accessed 5 May
2018).
38 Rawls: A Theory of Justice, 11.