How Rawls Could Support the Due Care Principle
by Dr. Jan Garrett
March 15, 2005
This webpage assumes that the reader is familiar with the elements of John Rawls' philosophy described in John Rawls on Justice.
The basic idea of the Due Care Theory of manufacturers' obligations to consumers is that since manufacturers have much greater knowledge and power than their consumers, they have a special obligation to look out for the interests of the buyers (and members of their households), and above all to take special care to make sure that the buyers are not harmed by manufacturers' products. Due Care Theory starts from the assumption that the rough equality that exists between those who form truly voluntary contracts does not characterize many relationships between sellers and buyers in a technologically complex world where the sellers are large corporations.
One might give a Rawlsian defense of the principle of Due Care from two perspectives. One approach might take Due Care Theory to be an application of the natural duties not to injure people and not to harm the innocent, and one could make the case that negligent design or production of defective products that harm customers violate the rule of non-injury.
But it seems to me the more meaningful approach is to regard the principle of due care as part of a mutually beneficial practice and the failure to exercise due care as a kind of failure in fairness, a lack of respect for the generally understood rules of this particular practice.
The practice is one that is defined as follows:insofar as society permits manufacturers to operate in such a way that they are permitted to sell highly complex, potentially dangerous, and also potentially profitable products on the market, manufacturers will do their very best to ensure that the products will not be harmful to buyers, their households, or third parties. Furthermore, they do not have to have promised to do this when the contract with specific buyers is concluded. It is enough that they have chosen to operate a business of this sort in the first place.
The validity of this arrangement, and its superiority over the alternate arrangement according to which manufacturers have only those obligations to which they have explicitly agreed, can be tested by reference to the Difference Principle under whose general scope it falls.
As part of Rawls' second principle of (social) justice the Difference Principle states that inequalities are justified only if they are part of an arrangement that works to the greatest advantage of the least advantaged individuals.
Consider now the consumer who does not know advanced chemistry and who nevertheless is being invited to purchase a potent pesticide which she will apply herself. She is not able to afford a professional gardener to apply it for her. She can represent a relatively disadvantaged individual. Suppose she and persons like her are properly warned about the potential hazards of use of this chemical and that the chemical is only as dangerous as it needs to be to achieve its task.
On these assumptions the unequal arrangement from which the already powerful manufacturer is benefitting may in fact work to the greatest advantage of the more disadvantaged persons. In any case, if the manufacturer did not exercise such Due Care, the arrangement would clearly be less advantageous to the more disadvantaged persons, and therefore the practice without Due Care would violate Rawls' Difference Principle. Thus Due Care receives at least a tentative endorsement from Rawls' Difference Principle and the Principle of Fairness (as a Bridge Principle) which requires us, once we have joined a practice justified by the principles of justice, to do our part as specified by the rules of that practice.