A Theory of Justice (1971)was one of their most influential works of twentieth-century political concept, and we have now arrived in its 50th anniversary. How should we consider its own legacy?
Most Law & Liberty subscribers are acquainted with Theory’s fundamental arguments. But the job of assessing its heritage is complex by the reality that Rawls’s thoughts changed over the years, along with the explanations for these developments remain a topic of lively controversy. I’m not even a Rawlsian, along with my interest in the finer points of Rawlsian scholarship has limits. But as a person who regularly teaches Rawls and sympathizes with components of his project, I do have some ideas about its legacy.
Rawls’s lifelong project was an effort at political conflict-resolution at a high level of philosophical abstraction. He functioned to get the most part in what he called”perfect theory,” talking political arrangements since they might be”but for” background and happenstance. Nevertheless Rawls always regarded ideal theory for a prelude to”non-ideal concept,” the job of reforming political structures to be able to bring them more in accordance with reason. He was something of a”rationalist,” as Michael Oakeshott employed the term. But unlike an intense rationalist, he did not theorize by a blank slate. Instead, he started from certain moral and political notions that are found in contemporary liberal culture.
Rawls’s Project in Theory
The basic ideas that frame Theory derive from those generally held thoughts: humor, fairness, and equal liberty, equal opportunity, and the need for social collaboration. Rawls presents these as axiomatic though, for many others, they might justify investigation. Against this backdrop, Theory tries to explain the essentials of liberal freedom and equality in such a manner that everyone, or almost everyone, will accept the conclusion results as honest, regardless of their personal circumstances. Rich or poor, fortunate or unfortunate, most citizens will feel that they are involved in a combined system which respects and acknowledges them as persons.
Theory contains three components. The second part considers how these principles might be institutionalized in political practices and practices. The third part endeavors to show how involvement in the resulting”well-ordered society” is compatible with a robust, general conception of the good, which Rawls expects citizens will discover attractive. If Rawls were successful, citizens would take pleasure in the pursuit of a fantastic life as free and rational beings at a stable, well-ordered society.
Rawls’s two principles of justice purport to balance liberty and equality. But in reality they require radical egalitarianism. True, everybody is to enjoy an extensive list of”fundamental liberties”–such is the gist of this very first principle, which Rawls gifts as”lexically before” to the second. Nevertheless, the second nonetheless opens the door to huge state intervention to be able to guarantee not just formal but meaningful equality of opportunity, as well as a more rigorous system of redistribution to be able to supply welfare and also to regulate economic inequalities over time.
In actuality, it’s hard to comprehend the ambition of Rawls’s project in Theory; plus it required at least two years for the critical dust to listen. Early on, the praise was so epic. For example, Robert Nozick, that was rather critical of Theory, nevertheless described it in 1974 as”a powerful, deep, subtle, broad, systematic function in political and moral doctrine which has never seen its like as the writings of John Stuart Mill, if then.”
But over time a number of exacting criticisms emerged. H.L.A. Hart revealed how Rawls’s first principle paid insufficient attention to competing rights and liberties and to the tension between liberty and other important social media. Nozick himself showed that the notion of distributive justice in Rawls’s second principle was at odds with a”historical-entitlement” view grounded in individual rights and freedoms. The first place and veil of ignorance have been derided by Allan Bloom as a”bloodless abstraction” offering no rationale for anyone to continue under Rawls’s platform when he didn’t like the outcomes. Marxists assaulted him for being an ideologist of this status quo, and feminists for his clear acceptance of this family. Rawls’s Theory was undoubtedly successful in reshaping the conversation in political doctrine, but it surely didn’t suit everybody.
Nor was Rawls himself fulfilled. Accounts differ as to the precise reason for Rawls’s recasting of Theory at a second publication called Political Liberalism (1993), but many agree that it originated from the incompatibility of his concept with reasonable pluralism regarding ethical concepts such as justice and the good. Rawls came to doubt that his two principles of justice would be reinforced, or, when they were endorsed, they would remain stable at a pluralist society.
1 way to see this (but maybe it’s too simple) is to say Rawls realized his presentation at Theory”begged the matter,” since it assumed without argument one ethical framework (neo-Kantianism) one of other reasonable rivals. A different way to see it’s that Rawls never believed his concept as hinging on a single moral framework–Kantian or –but came to understand that given freedom of thought and sufficient time, equal fundamentals of justice might become appealing. Either way, Rawls had suppressed the issue of acceptable pluralism and now needed to try again.
Rawls’s wrestling with pluralism led him to introduce into Political Liberalism several new theories including”comprehensive doctrines,””reasonable pluralism,” the”burdens of judgment,””overlapping consensus,””grounds,” and, most importantly,”legitimacy,” which would develop into an integral portion of his endeavor to revise his undertaking. Moreover, Rawls now recast his whole concept at a much more abstemious manner, introducing it as a”political notion,” without dependence for its own substance or justification to any metaphysical or spiritual doctrines not shared among citizens. All these alterations, commonly referred to as Rawls’s”political turn,” allowed Rawls to reply to the issue of pluralism. However they also (I would argue) left his concept less coherent, especially in its radical egalitarianism.
In summary, the concept of Political Liberalism goes some thing like this. In contemporary liberal societies, citizens clearly adopt multiple, sometimes indicative”comprehensive doctrines” about life’s meaning as well as the possibilities of politics. Pluralism don’t result from recalcitrance or intellectual laziness, but may arise naturally from valid obstacles to discovering reality (what Rawls calls the”burdens of judgment”): conflicting or vague evidence, different life experiences, along with competing normative considerations.
But when pluralism is valid (if folks can and do reasonably hold indicative comprehensive doctrines) and when we are seriously interested in the worth of individual freedom and proper equality, then we should refrain from developing political existence upon any detailed philosophy. To do otherwise would not just violate people’s freedom and equality, but it would probably perpetuate ongoing political divisions and battle.
Instead, Rawls believes we should discover terms of political agreement that are”freestanding,” speaking to their rationale to not controversial comprehensive doctrines but to ideas embedded in our everyday life together. Additionally, we should restrict the reach of political agreement to the most basic domain (specifically, the”basic construction”)–in the expectation that all or most citizens will have the ability to concur wholeheartedly (i.e., achieve a”overlapping consensus”) on the basic principles of political cooperation.
In the end, once citizens agree to the fundamentals of the basic arrangement, they will have touchstones by which to reason about preexisting conflicts that arise. Referring back to the basic principles, citizens can offer”public grounds” regarding what society ought to do.
The outcome, I think, are mixed. Rawls was appropriate to acknowledge pluralism as a permanent feature of liberal culture. His treatment of the subject was not as penetrating as the greatest theorists of pluralism out of Michael Oakeshott and Isaiah Berlin to Stuart Hampshire and Bernard Williams. But it was certainly solid enough to place theoretical obstacles in the way of what we might call the”politics of unified vision.” Rawls confirmed the U.S. is not and never will be a polity like Calvin’s Geneva where everybody agrees on the ends to be pursued; also it’s time we stopped coming politics this manner.
Nevertheless, when it arrived in preserving his original concept, Rawls ran in to issues. The more he came to appreciate the thickness of realistic pluralism, the more he realized his second principle of justice in particular (the one relating to equality and inequality) was unlikely to become part of almost any”overlapping consensus.” Rawls’s egalitarianism may have been appealing within certain moral and political frameworks, however it was certainly not universally appealing and would likely not even control a bare majority of adherents.
The tacit understanding held by most American political celebrities now is that politics is war. The target is to win and wield the power of this country in pursuit of a person’s own ethical vision–enemies be damned. This, however, won’t operate at a pluralist society dedicated to freedom and proper equality.As a consequence, Rawls started to soft-pedal his second principle of justice, beginning with Political Liberalism and ending with his final work, Justice as Fairness: A Restatement (2001), in which he writes quite frankly:”[T]he reasoning for the very first principle is, I think, quite conclusive;… the reasoning for the difference principle, is much not as conclusive. It turns out on a delicate balance of less decisive concerns.”
The Issue of Liberal Political Legitimacy
Maybe due to his principles of justice appeared less convincing after taking pluralism more critically, Rawls turned to the subject of legitimacy. That can be contested: there are various accounts of why Rawls centered on legitimacy starting in Political Liberalism and continuing throughout Justice as Fairness. But if his goal should happen to discover motives for political unity separate from his two principles of justice, then I don’t believe he succeeded. This is not just because, since Rawls states , his”principle of legitimacy [has] the same basis because the substantive principles of justice.” They flow out of the exact neo-Kantian spring, I would say. It is also because Rawls’s consideration of legitimacy is inadequate on its surface.
Rawls believes the practice of political power among citizens considered free and equal is valid”just when it’s exercised in accordance with a constitution the essentials of which all citizens as free and equal may fairly be expected to endorse in the light of principles and ideals acceptable for their ordinary human reason.” Legitimate rules are what citizens might”reasonably be expected” to agree to, not what they actually agree to.
But a difficulty emerges when political legitimacy is approached this way: What occurs when no agreement about fundamental principles of justice, let alone the”constitutional essentials,” is forthcoming? Rawls knows of the. He writes,”there is plainly no promise that justice as fairness, or some other fair notion for a democratic regime, so could get the help of the overlapping consensus and at that manner underwrite the stability of its constitution.” But in case no agreement is coming –and this really is sadly our present state of events in the United States and in many liberal regimes–then the issue of legitimacy remains unsolved. The state employs coercive power, because it must do so when the regime is to be preserved. But such coercion will continually appear untrue to”free and equal” citizens who disagree with its endings.
Rawls’s answer is, in effect,”well, citizens don’t need to actually agree; it suffices they fairly ought to.” But this to simply really have a notably paternalistic spot on the issue of legitimacy, one that’s incompatible with normal notions of freedom and equality. Who is to determine what”reasonably ought” to be okay?
The Failure of Rawls’s Project
In my opinion, not only Rawls’s account of legitimacy, but also his two principles of justice (both of them) ultimately fail.
The issue with the original principle (equal fundamental rights and liberties) is the rights and liberties in query are decided not by some other historical account of Western constitutionalism and political practices, but by a thought experiment motivated by a distinctly”optimistic” sense of liberty:”We consider what liberties provide the political and societal conditions necessary for the adequate development and complete practice of both moral powers of free and equal persons”–both the two powers being the potential for a sense of justice and a conception of the good.
Notably absent from Rawls’s list of fundamental liberties is a right to private property in productive assets. This is not an omission, but rather fits Rawls’s appetite”to put all citizens in a position to handle their own affairs on a basis of a suitable level of social and economic equality.” It must come as no surprise that Rawls cannot determine in the end whether a”property-owning constitutional democracy” or even a”liberal socialist regime” best fits his concept of citizenship: He says they do.
Equally problematic is that part of Rawls’s second principle referred to as the”equal opportunity principle”–i.e., insofar as there are”social and economic inequalities,” the”offices and places” to which they are connected must be”open to all under conditions of fair equality of opportunity.” The difficulty is that cannot possibly be attained. For by”fair equality of opportunity,” Rawls means (see JF II.13) which”people who have the same level of talent and ability and the same willingness to use those gifts must have the very exact prospects of success no matter their social class of origin. [All have to have] the very exact prospects of achievement and culture.”
To accomplish this, Rawls suggests that”a free-market system… be put within a framework of political and legal institutions” which”establish, among other matters, equal chances of education for all regardless of household income” and which”correct the extended trend of economic forces so as to prevent excessive levels of property and riches, especially those likely to contribute to political domination.”
Of course, expanding educational opportunities for the less well-off seems desirable in the abstract. So also does preventing disparities of wealth in translating into disparities of power (the issue of”domination”). But to say that a society is not just unless educational opportunities are equal, or until”excessive” (whatever that means) levels of property and riches are removed, is in effect to say that only a radically egalitarian society could be truly just. Just something approaching complete equality is going to do, since where there is inequality whatsoever, and also the freedom to do so we shall, differences in educational opportunities and concentrations of wealth will emerge. The only means to stop this is through suspension of freedom and redistribution of resources. No wonder Rawls was circumspect regarding the rights of property.
Another portion of Rawls second principle, the so called”difference principle,” can be impractical. It states that social and economic inequalities have to be”to the best advantage of their least-advantaged members of the society .” Interestingly, classical liberals and libertarians often justify economic inequality on just these grounds–which the least advantaged members of the free-market economy are, on the whole, better than they would be otherwise. But Rawls converts an empirical claim (if it’s accurate is a separate question) into a normative state: just if inequalities redound to the best advantage of the least advantaged are they just.
It is not obvious for me that justice demands any such thing. But when it did, I wonder how anybody could know whether the state were actually met–either at the aggregate or, even considerably more problematically, particularly trades and investments of someone’s time, energy, and material resources. Rawls’s method is to show his”difference principle” would probably be considered more simply than just 1 competitor: the utilitarian principle of typical utility. Maybe he is perfect. It could be done, possibly, through routine redistribution at the end of fixed periods. But how could we know in advance the least advantaged are in fact better served under a method of redistribution than they would be, long lasting, under a system of economic freedom? As von Mises has famously argued, the total amount available to distribute over time is dependent upon the system where wealth is created. Redistribution may well have negative effects for wealth generation.
By exactly the same token, how could we understand in advance the effects which redistrubtion might have on entrepreneurial imagination and innovation, after these have been severed from the expectation of a complete reward?
Building on the Ruins
As a means of finishing my accounts of Rawls’s heritage, I want to catalog these components and reveal where I think they point.
Rawls rightly recognized the challenge of liberal regimes is to maintain peace, order, and a feeling of legitimacy in the surface of three basic conditions: a commitment to individual freedom, a commitment to formal equality, along with the existence of reasonable pluralism. American political authors and celebrities still have to learn out of Rawls on this stage. Rawls noticed something more, and that’s that regimes at which these 3 basic conditions obtain cannot, technically speaking, be known as”communities” or”associations.” They’re rather a different type of human relationship,”political relationship,” in which, due to pluralism, contentious ethical purposes cannot be pursued without breaking equality and liberty. Politics should consequently be non-purposive to the best degree possible.
Rawls also known that unlike communities and associations, which are voluntary (e.g., could be input into and exited at will) political relationship is mandatory: there is no easy exit. He understood and concerned about the fact that”political power is obviously coercive power.” And he then drew the right conclusion from these details: The coercive use of this country to pursue controversial ends at a situation where citizens have no exit is, on the surface of it,”incompatible with fundamental democratic liberties.” Thus much for the contemporary progressive agenda.
I would mention one other section of Rawls’s concept I think is fruitful for future liberal theorizing, though I understand it will be more controversial than the points previously. Rawls presents liberal political relationship fundamentally as a form of collaboration, not competition, much less war. He has no justification because of this fundamental starting point of his idea. And, clearly, he goes on to use the thought of collaboration in order to press for a cosmopolitan society, which I have already shown violates freedom and equality. Still, like Rawls, I respect cooperation as the best method to understand and practice liberal politics.
The tacit understanding held by most American political celebrities now is that politics is war. The target is to win and wield the power of this country in pursuit of a person’s own ethical vision–enemies be damned. This, however, won’t operate at a pluralist society dedicated to freedom and appropriate equality. A better way to know politics will be as an ongoing negotiation of truce among citizens who may disagree radically and remain dedicated to living together in peace. Cooperation don’t imply distributive justice because it’s for Rawls; however it could and should indicate a commitment to recognizing each other formally as political leaders.
A corollary of the comprehension of politics is the use of federal power should be limited to functions about everything, or almost all, citizens concur. Greater power could, of course be exercised more local levels of government by which”exit” is simpler and pluralism less conspicuous; or by voluntary associations working on a small or a huge scale, as societal problems need. But federal power, as an issue of ethical principle, should be limited to functions upon which many citizens can agree.
Ultimately, I personally find at the flames of Rawls’s political concept the grounds to get a classical-liberal concept of politics, wealthy in associational existence and restrained in national pursuits. It seems improbable the U.S. will head in this way anytime soon, however it’s a direction I would regard as just.