On the Legacy of A Theory of Justice

How should we consider its legacy?

Many Law & Liberty subscribers are acquainted with Theory’s basic arguments. But the task of assessing its legacy is complex by the fact that Rawls’s ideas changed over time, along with the explanations for these developments remain a matter of controversy. I am not a Rawlsian, along with my curiosity about the finer points of Rawlsian pupil has limitations. But as somebody who routinely instructs Rawls and sympathizes with components of the project, I really do have some thoughts about its heritage.

Rawls’s lifelong endeavor was an effort at political conflict-resolution at a high degree of philosophical abstraction. He worked for the most part in what he called”ideal theory,” discussing political arrangements as they could be”but for” background and happenstance. Yet Rawls always considered ideal theory for a prelude to”non-ideal theory,” that the task of reforming political arrangements to be able to bring them more in accordance with reason. He was something of a”rationalist,” because Michael Oakeshott applied the term. But unlike an intense rationalist, he did not theorize out of a blank slate. Rather, he started from particular political and ethical sentiments that are found in contemporary liberal society.

Rawls’s Job in Theory

The fundamental ideas that frame Theory derive from these commonly held thoughts: humor, fairness, equal liberty, equal opportunity, and the need for social collaboration. Rawls presents them as axiomatic though, for many others, they might warrant investigation. Against this background, Theory attempts to describe the fundamentals of liberal liberty and equality in such a manner that everyone, or almost everyone, will take the conclusion results as honest, no matter their personal circumstances.

Theory contains three parts. The second part considers how these principles might be institutionalized in political practices and practices. The next part endeavors to demonstrate how participation in the resulting”well-ordered society” is compatible with a strong, general conception of the great, which Rawls hopes citizens will find attractive. If Rawls were successful, citizens would enjoy the pursuit of a great lifestyle as free and rational beings in a secure, well-ordered society.

Rawls’s two principles of justice purport to balance liberty and equality. But in fact they need radical egalitarianism. True, everyone is to enjoy a comprehensive collection of”basic liberties”–this really is the gist of the first principle, which Rawls gifts as”lexically before” to the second. Nevertheless, the second nevertheless opens the door to huge state intervention so as to guarantee not just formal but substantive equality of opportunity, as well as a far-reaching system of redistribution so as to supply welfare and to regulate economic inequalities over time.

In reality, it’s tough to comprehend the ambition of Rawls’s project in Theory; and it took two decades for the critical dust to listen. Early on, the compliments was epic. For example, Robert Nozick, that was quite critical of Theory, nevertheless explained it in 1974 as”a strong, profound, lively, broad, orderly job in political and moral philosophy which has never seen its like as the writings of John Stuart Mill, though then.”

But over time lots of exacting criticisms emerged. H.L.A. Hart demonstrated how Rawls’s first principle paid insufficient focus on competing rights and liberties and to the tension between liberty and other important social goods. Nozick himself showed that the notion of distributive justice in Rawls’s second principle was at odds with a”historical-entitlement” perspective grounded in human rights and freedoms. Marxists assaulted him to be an ideologist of the status quo, and feminists for his apparent acceptance of the hierarchical family. Rawls’s Theory was undoubtedly successful in reshaping the dialogue in political doctrine, but it surely did not suit everyone.

Accounts differ concerning the precise reason behind Rawls’s recasting of Theory in a second book called Political Liberalism (1993), but most agree that it originated from the incompatibility of his theory with reasonable pluralism regarding ethical concepts like justice and the great. Rawls came to doubt that his two principles of justice would be endorsed, or, when they had been endorsed, they would stay secure in a pluralist society.

One way to see this (but maybe it’s too simple) is to state Rawls recognized his demonstration in Theory”begged the issue,” since it assumed without debate one moral framework (neo-Kantianism) one of other sensible rivals. A different way to see it’s that Rawls never considered his theory as hinging on a single moral frame –Kantian or differently –but came to understand that given liberty of thought and enough time, equal principles of justice could become attractive. In any event, Rawls had jeopardized the problem of reasonable pluralism and now needed to try again.

Rawls’s wrestling with pluralism directed him to introduce into Political Liberalism quite a few new concepts including”comprehensive doctrines,””reasonable pluralism,” that the”burdens of judgment,””overlapping consensus,””grounds,” and, above all,”legitimacy,” which would develop into an integral portion of his attempt to revise his undertaking. Additionally, Rawls now recast his entire theory in a much more abstemious manner, presenting it as a”political notion,” without reliance for its substance or justification on any metaphysical or religious doctrines not shared among citizens. All these revisions, commonly referred to as Rawls’s”political turn,” enabled Rawls to reply to the problem of pluralism. But they also (I would argue) left his theory less coherent, particularly in its revolutionary egalitarianism.

In outline, the theory of Liberalism goes something like this. In contemporary liberal societies, citizens obviously embrace multiple, sometimes indicative”comprehensive doctrines” about life’s meaning and the possibilities of politics. Pluralism need not result from recalcitrance or intellectual laziness, but might arise naturally from valid obstacles to discovering truth (what Rawls calls the”burdens of judgment”): conflicting or obscure evidence, different life experiences, along with competing normative considerations.

But when pluralism is valid (if people do and can reasonably hold indicative comprehensive doctrines) and when we’re serious about the value of human liberty and appropriate equality, we ought to refrain from creating political life upon any detailed philosophy. To do differently would not just violate people’s liberty and equality, it would likely perpetuate ongoing political divisions and conflict.

Rather, Rawls thinks we ought to find terms of political agreement who are”freestanding,” referring to their rationale not to contentious comprehensive doctrines but to ideas already embedded into our common life together. Additionally, we ought to limit the scope of political agreement to the most fundamental domain (particularly, the”basic structure”)–in the expectation that all or most citizens are going to have the ability to agree wholeheartedly (i.e., achieve an”overlapping consensus”) about the fundamental principles of political cooperation.

Ultimately, once citizens agree to the fundamentals of the fundamental arrangement, they are going to have touchstones by which to cause constitutional conflicts that arise. Referring back to the fundamental principles, citizens can provide”public reasons” regarding what society must do.

The results, I think, are mixed. Rawls was right to admit pluralism as a permanent feature of liberal society. His treatment of this subject wasn’t as penetrating as the best theorists of pluralism from Michael Oakeshott and Isaiah Berlin to Stuart Hampshire and Bernard Williams. But it was certainly solid enough to put theoretical obstacles in the way of which we could call the”politics of unified vision” Rawls confirmed the U.S. is not and never will be a polity such as Calvin’s Geneva where everyone agrees about the ends must be pursued; and it’s high time we stopped approaching politics this manner.

Nevertheless, when it arrived in retaining his original theory, Rawls ran into difficulties. The longer he came to love the depth of reasonable pluralism, the more he understood his second rule of justice in particular (the one about equality and inequality) was unlikely to become a portion of almost any”overlapping consensus” Rawls’s egalitarianism might have been attractive within certain political and ethical frameworks, however it was definitely not universally attractive and would likely not even command a bare majority of adherents.

The objective is to win and wield the power of the country in pursuit of a person’s own moral vision–enemies become damned. This, however, won’t operate in a pluralist society committed to liberty and formal equality.As an outcome, Rawls started to soft-pedal his second principle of justice, beginning with Political Liberalism and end with his final function, Justice as Fairness: A Restatement (2001), where he writes quite honestly:”[T]he justification for the first principle is, I think, very conclusive;… the justification for the difference principle, is less conclusive. It turns out on a delicate balance of less decisive factors.”

The Issue of Liberal Political Legitimacy

Maybe due to his principles of justice seemed less convincing after taking pluralism more seriously, Rawls turned to the subject of legitimacy. This is contested: There are different accounts of why Rawls centered on legitimacy beginning in Liberalism and continuing throughout Justice as Fairness. But if his aim were to discover motives for political unity independent from his two principles of justice, I don’t believe he triumphed. This is not simply because, as Rawls states , his”principle of legitimacy [has] the exact same basis because the significant principles of justice” They flow from the same neo-Kantian spring, I would say. It’s also because Rawls’s account of legitimacy is insufficient on its face.

Legitimate rules are what citizens could”reasonably be expected” to agree to, not just what they actually agree to.

But a problem emerges when political legitimacy is approached such a way: What happens when no such agreement about basic principles of justice, let alone the”inherent principles,” is coming? Rawls knows of this. He writes,”there is plainly no guarantee that justice as fairness, or any fair notion for a democratic regime, can obtain the support of an overlapping consensus and in that manner underwrite the equilibrium of its political constitution” But when no agreement is forthcoming–and this is sadly our current state of affairs in the USA and in most liberal regimes–then the problem of legitimacy remains unsolved. The state employs coercive power, since it must do this when the plan is to be preserved. But such coercion will continually seem illegitimate to”free and equal” citizens who disagree with its own endings.

Rawls’s answer isalso, in effect,”well, citizens don’t need to actually agree; it suffices they reasonably ought to.” But this to take a particularly paternalistic position on the problem of legitimacy, one that’s incompatible with normal notions of liberty and equality. Who’s to decide exactly what”reasonably ought” to be acceptable?

The Truth About Rawls’s Project

In my view, not only Rawls’s account of legitimacy, but also his two principles of justice (both of these ) ultimately neglect.

The problem with the initial principle (equal basic rights and liberties) is the rights and liberties in question are decided not by any historical consideration of Western constitutionalism and political practices, but with a thought experiment motivated by a distinctly”favorable” sense of independence:”We consider what liberties provide the political and societal conditions essential for the adequate growth and complete exercise of the two moral powers of equal and free men”–the two powers being the potential of a sense of justice and a conception of the good.

Notably absent from Rawls’s set of basic liberties is a right to personal land in productive assets. This is not an omission, but instead matches Rawls’s appetite”to put all citizens in a position to manage their own affairs on a basis of a suitable degree of economic and social equality.” To do this, Rawls must ensure”widespread ownership of productive forces,” by seizing and redistributing productive assets according to a rational plan. It should really come as no surprise that Rawls cannot determine in the end whether a”property-owning inherent democracy” or a”liberal socialist program” best matches his theory of citizenship: He says that they do.

The problem is that this cannot possibly be attained. For by”fair equality of opportunity,” Rawls means (visit JF II.13) that”people who possess the exact same amount of ability and skill and the exact same willingness to use these gifts should have the same prospects of success regardless of their social class of origin. [We have to have] the same prospects of culture and achievement.”

To achieve this, Rawls proposes that”a free-market system… be set within a framework of legal and political institutions” that”establish, among other matters, equal chances of education for all regardless of family income” and which”correct the extended trend of economic forces so as to prevent excessive levels of land and wealth, particularly those likely to contribute to ideology.”

Of course, expanding educational opportunities for the less well-off seems desirable in the abstract. So too can averting disparities of wealth in translating into disparities of energy (the problem of”domination”). But to state that a society is not only unless instructional opportunities are equivalent, or until”excess” (whatever that means) levels of land and wealth are removed, is in effect to state that a radically egalitarian society can be truly only. Just something approaching complete equality will do, since where there is inequality whatsoever, and the liberty to do as we will, gaps in educational opportunities and concentrations of prosperity will emerge. The only way to prevent this is by way of suspension of liberty and redistribution of resources. Regardless of Rawls was circumspect concerning the rights of land.

The other portion of Rawls second principle, the so called”difference principle,” is also impractical. It says that economic and social inequalities needs to be”to the greatest advantage of their least-advantaged members of the society ” Lately, classical liberals and libertarians frequently justify economic inequality on these grounds–that the least advantaged members of a foreign exchange market are, on the whole, better than they are otherwise. But Rawls implements an empirical claim (if it’s accurate is a separate question) into a normative condition: just if inequalities redound to the greatest advantage of the least advantaged are that they just.

It is not obvious for me that justice demands any such thing. But when it did, I still wonder how anyone could know if the condition were actually met–in the aggregate or, how considerably more problematically, particularly trades and investments of one’s time, energy, and material sources. Rawls’s method is to demonstrate his”difference principle” will likely be recognized as more simply than just one contender: the pragmatic principle of utility. Maybe he’s perfect. It could be done, possibly, through regular redistribution by the end of fixed periods. But how do we know beforehand the least advantaged are actually better served under a method of redistribution than they would be, longterm, under a system of economic freedom? Since von Mises has famously arguedthat the total amount available to distribute over time is based upon the system where wealth is created. Redistribution may well have negative effects for wealth creation.

By exactly the exact token, how can we know ahead of the effects that redistrubtion could have about entrepreneurial creativity and innovation, once these have been severed from the expectation of a complete reward?

Construction on the Ruins

As a way of concluding my accounts of Rawls’s legacy, I would like to catalog these components and show where I presume they point.

Rawls rightly understood the struggle of liberal regimes is to preserve peace, order, and a feeling of legitimacy in the face of three fundamental requirements: a dedication to individual liberty, a dedication to formal equality, along with the existence of acceptable pluralism. American political authors and celebrities have much to learn from Rawls on this stage. Rawls noticed something more, which is that regimes where these three fundamental states obtain can’t be speaking, be known as”communities” or”associations” They’re rather a different type of human relationship,”political relationship,” where, due to pluralism, contentious ethical purposes cannot be pursued without breaking freedom and equality. Politics should hence be non-purposive to the greatest extent possible.

Rawls also known that unlike associations and communities, which can be voluntary (e.g., could be entered into and exited at will) political relationship is mandatory: there is no easy exit. He simultaneously understood and worried about the fact that”political power is obviously coercive power” And he then drew the right conclusion from these facts: The coercive use of the state to pursue contentious ends in a scenario where citizens don’t have any departure is, on the face of it,”incompatible with basic democratic liberties.” Thus much for the contemporary agenda.

I would mention one other part of Rawls’s theory I believe is fruitful for future liberal theorizing, though I realize it will be more contentious than the things above. He offers no justification because of this basic starting point of the idea. And, obviously, he goes on to use the concept of collaboration so as to press for a cosmopolitan society, which I have already shown violates liberty and equality. However, such as Rawls, I regard cooperation as the ideal way to understand and clinic liberal politics.

The objective is to win and wield the power of the country in pursuit of a person’s own moral vision–enemies become damned. This, however, won’t operate in a pluralist society committed to liberty and formal equality. A much better way to know politics would be as an ongoing discussion of truce among citizens who might disagree radically and yet remain committed to living together in peace. Cooperation don’t mean distributive justice because it’s for Rawls; however it can and should indicate a commitment to understanding each other formally as political leaders.

A corollary of this comprehension of politics is the use of federal power ought to be limited to functions about everything, or almost all, citizens agree. Greater electricity could, of course be exercised more local levels of government by which”depart” is simpler and pluralism less conspicuous; or from voluntary associations working on a small or a large scale, as societal problems require. But federal power, as an issue of moral principle, ought to be limited to functions upon which most citizens can agree.

In the long run, thenI find in the remnants of Rawls’s political theory the grounds for a classical-liberal theory of politics, wealthy in associational life and restrained in national pursuits. It appears unlikely the U.S. will go in this direction anytime soon, but it’s a direction I would regard as simply.