JOHN RAWLS THEORY OF JUSTICE

Yet in comparison with the tradition of political philosophy from antiquity to at least the late nineteenth century, both Rawls’ aims and methods — indeed, his very conception of political philosophy — are quite novel. And his account of justice represents a considerable departure from the one embodied in the American constitutional tradition.

Political philosophy as traditionally understood aimed to articulate the nature of the best and most just political regime, as well as that of the best human life, by starting with the consideration of the conflicting opinions that human beings hold about those things, or of the various human passions that generate the need for government. The former approach is exemplified by Plato’s Republic and Laws, as well as Aristotle’s Politics and Ethics. The latter is manifest in works like Hobbes’ Leviathan, Locke’s Second Treatise, and Rousseau’s Second Discourse and Social Contract.

By contrast with such works, the aim Rawls expresses from the outset of Theory is to devise a “theory” of justice that can better systematize people’s judgments about it. In his view, existing political societies are “seldom well-ordered” simply because they are characterized by disagreements about justice. An agreed-on theory of justice is needed, in addition, in order for individuals’ “life plans” to be “fitted together” so that nobody’s “legitimate expectations” will be “severely disappointed.”

Rawls claims to have provided a solution to these problems in the form of two “principles of justice,” the first of which enjoys priority over the second. The first principle mandates that everyone has “an equal right to the most extensive system of equal basic liberties compatible with a similar system of liberty for all.” The second (with some qualifications omitted here) dictates that inequalities in “social and economic” goods must arranged “to the greatest benefit of the least advantaged” members of society (the “difference principle”), while being “attached to offices and positions open to all under conditions of fair equality of opportunity.”

To spell out the concrete meaning of these specifications would require a great deal of work, only a limited amount of which Rawls undertakes. To begin with: how are we to identify which liberties are “basic”? Don’t they include economic liberties, which Rawls relegates to the second, subsidiary principle — and then seems to undermine entirely by giving “society” the right to redistribute property in accordance with the needs of the least advantaged? How do we rank different kinds of disadvantage — genetic, medical, economic? And who gets the authority to decide these issues?

Rawls might have tried to clarify and defend his principles by comparing them with the writings of great political philosophers from the past. Instead, he chooses to demonstrate their superiority to two alternative theories about the basis of moral judgments, utilitarianism and intuitionism, which he maintains “have long dominated our philosophical tradition” (i.e., the Anglo-American school of philosophy over the past two centuries). And his method of demonstration is to show that they would be chosen over alternative theories by rational, self-interested parties operating in an “original position” of equality.

Rawls’ original position is loosely modeled on the “state of nature” adopted by Hobbes, Locke, and Rousseau as a ground for judging the legitimacy of government. The most important difference between the two conditions, however, is what Rawls calls the “veil of ignorance.” This veil, which Rawls invents to constrain the parties’ decisions in such a way as to “nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances” to favor their own interests, prevents them from knowing their social or economic class, their share of “natural assets and abilities,” “the particular circumstances” of the society for which principles are being chosen, or even their “conception[s] of the good.” All they are allowed to know is the “general facts about human society,” including “political affairs,” “economic theory,” and “the laws of human psychology.”

In the absence of an agreed-on view of the human good, the parties to the original position must base their choice among alternative theories on which of the theories guarantees the greatest amount of “primary goods” to the representative member of society (with special reference to the least advantaged). These goods “are things of which it is supposed a rational man wants whatever else he wants,” of which he would prefer to have more rather than less. In “broad categories,” they include “rights, liberties, and opportunities,” “income and wealth,” and “a sense of one’s own worth.”

Rawls has little difficulty demonstrating that his principles, constituting what he calls a “contract theory” of justice, would be chosen over utilitarianism in the original position as he has defined it. The central difficulty of one form of utilitarianism, the principle of “average utility,” is that it would justify such morally opprobrious practices as slavery, if only it could be demonstrated that the pleasure or utility enjoyed by slaveholders was great enough to outweigh the suffering endured by their slaves. Since the parties to the original position do not know what their ultimate position would be in society, it is more sensible for them to guarantee their freedom and (partial) equality by adopting the two principles than by shooting for the stars and adopting a principle that would potentially enable them to enjoy the joy of unlimited mastery, but at the far more likely price of ending up as slaves. (Montesquieu makes a similar argument against slavery in Spirit of the Laws XV: how would supporters of slavery like it if the tables were turned?) Rawls raises similar objections to “classical” utilitarianism, as expressed in the writings of Hume and Adam Smith: Smith’s notion of assessing a society’s practices from the standpoint of an “impartial spectator…fails to take seriously the distinction between persons,” he maintains, since it “conflat[es] all desires into one system of desire,” as if individual human beings’ happiness or rights could adequately be provided for just by assuring that the society they inhabited was on the whole most usefully organized. Since Rawls’s theory, by contrast, treats the welfare of all individuals as equally valuable, he calls it “justice as fairness.”

Rawls dismisses two other rival theories even more briefly. Intuitionism, defined as the doctrine that justice must be determined in particular situations by balancing “a plurality of first principles” without any “priority rules” for ordering them is held to be defective because the way in which we weigh conflicting intuitions may be biased by our own particular situations and “expectations.” While it isn’t “necessarily irrational” to “appeal to intuition to settle questions of priority,” Rawls urges that we “do what we can to reduce the direct appeal to our considered judgments” in order to make agreement among us more likely — as, he maintains, his two principles (including the priority rule) do.

Rawls finally dismisses “perfectionism,” a theory ordaining that society be ordered “so as to maximize the achievement of human excellence in art, science, and culture,” which he associates with Nietzsche, on the ground that the veil of ignorance, which deprives the parties to the original position of knowledge of their conceptions of the good (other than the desire to maximize their share of primary goods) would prevent the parties to the original position from having “an agreed conception of perfection that can be used” to choose among institutions on that basis. While denying holding that “the criteria of excellence lack any rational basis from the standpoint of everyday life,” Rawls maintains that in the absence of a known conception of the good, the parties to the original position have no choice but to agree on the first principle of justice, maximizing the “greatest equal liberty” for each person to pursue his vision of the good (whatever it may turn out to be), rather than risk having to accept “a lesser religious or other liberty, if not to a loss of freedom altogether to advance many of one’s spiritual ends” (in case the criterion of perfection that society imposes differs from their own view of the good).

In reality, however, it is misleading to think that the ground for preferring Rawls’ two principles over rival theories is the fact that the latter would be rejected in the original position. This is because Rawls acknowledges devisinghis account of the original position in advance in order to generate principles that he thinks best cohere with “our” considered moral judgments. If the original position, including the veil of ignorance, didn’t produce the principles Rawls desired, he would simply alter it accordingly in order to produce the result he desired.

As numerous critics have pointed out, the reasoning by which Rawls demonstrates that the parties to his original position would prefer his two principles suffers from several defects. The most important of these is the fact that despite his denial of resting the parties’ choice on a particular vision of the good, he does just that. In holding that in order to be “rational,” the parties must choose a society in which everyone has the greatest liberty to pursue his particular vision of the good, however irrational or even repellent it might seem, Rawls simply rules out of order the beliefs of people who think that a properly organized society should promote a proper piety, heroism, or even the basic conditions of human dignity. Rawls goes so far as to deny that a just society has the right to punish any sexual practices that some may deem “degrading or shameful” — including, presumably, prostitution, polygamy, bestiality, and incest. Meanwhile, his emphasis on the “objective” goal of maximizing individuals’ “income and wealth,” however these are distributed, would seem to encourage a materialistic view of the human good, according to which we “know” that having more wealth is good for you, but cannot know that piety, heroism, or sexual restraint are.

As Theory proceeds, it becomes more and more apparent that in the name of articulating a theory of justice, Rawls has simply read the program of contemporary American left-liberalism into his doctrine, without any serious grounding. Fashionable practices like “civil disobedience” and “conscientious refusal” are ordained, without seriously confronting the objections to their widespread practice. As for the difference principle, Rawls’ only ground for asserting that inequalities in social and economic goods must be arranged for the benefit of the least advantaged is the argument that since nobody “deserves” the natural assets he was born with (including not only such qualities as intelligence, strength, and beauty, but even the very ambition to succeed), “our” considered judgments dictate that society be organized so as to compensate those who do less well in life as far as possible for their having lost out in nature’s lottery. But this notion of desert is deeply problematic. If nobody deserves his natural assets, i.e., his nature, how could anyone ever come to deserve any other good? And if those who are less successful in life are persuaded that their failings are the result of nature’s meanness, how can they even be persuaded to allow anyone a greater share of “primary goods” than those they possess, simply by being told that the allowable inequalities still benefit them the most (by motivating the more talented to work harder for the sake of greater rewards, thus ultimately enlarging the stock of primary goods available to benefit the less advantaged through some form of government redistribution)? Why shouldn’t they simply demand perfect social and economic equality, simply for the sake of that most-important primary good of self-respect — even if this means settling for a lower standard of living for all? In any event, isn’t Rawls’ denial of people’s capacity for improving their life-prospects by hard work and self-control likely to weaken the very effort they make to succeed, even if that may be the greatest determinant of success? Will anyone’s “self-respect” really be enhanced by telling him that his low starting-point in life simply guarantees him a share of more successful people’s earnings, without his having to accomplish anything himself?

These problems point in turn to the deepest difficulty in the ground of Rawls’ theory: the ambiguity regarding the “we” whose considered moral judgments the two principles were designed to reflect. Unlike the classic social-contract philosophers who grounded their doctrines in an account of the “state of nature,” designed to reflect the most fundamental natural needs and desires of actual human beings, Rawls, as we have seen, derives his principles from the hypothetical “decision” of a group of purely imaginary beings who have no recognizable human counterparts: beings who “know” that they want to maximize their so-called primary goods yet also know that they lack any agreed-on conception of the good; who “know” the “general facts” of politics, economics, and psychology but without deriving them from personal experience; who indeed lack any of the prerequisites of a sense of personal identity. It isn’t hard for Hobbes to demonstrate that the condition of human beings deprived of all government would be a life that is “solitary, poor, nasty, brutish, and short”— thus proving why it is in the interest of actual human beings to obey a sovereign, instituted for the limited purpose of securing our rights, so as to allow our private pursuit of “felicity.” Locke, building on Hobbes’ teaching, similarly shows why it’s in our interest to allow our fellows to engage in the unlimited pursuit of wealth through honest labor and investment, since it raises everyone’s standard of living (while diverting people’s energies away from religious and civil warfare). And Rousseau, in turn, calls into question the Hobbesean-Lockean solutions to the political problem by asking whether a society that fosters competitive individualism, and enables the few (in his view) to dominate the many, doesn’t leave us worse off than if we had remained in the condition of stupid, asocial animals — thus setting a stricter (perhaps unattainable) standard of political legitimacy than either of his liberal predecessors did, but reminding us of the tensions among individual freedom, wealth-maximization, and a sense of civic community. Finally, to pursue these issues to their root, we would have to reconsider Aristotle’s argument that human beings are by nature political animals, so that grounding the question of political legitimacy in hypotheses about how human beings in an imagined condition of anarchy would choose to organize themselves is approaching the problem of justice from the wrong direction.

Rawls, unfortunately, never addresses these issues. Instead, late in Theory, he acknowledges the historically relative character of his doctrine. That is, rather than claiming any timeless validity for his principles, he admits that the “truth” about justice may change over time. Rawls became increasingly open in this position in his post-Theory publications, as in his 1985 article “Justice As Fairness: Political Not Metaphysical,” where he abandoned any claim to ground the principles in objective truth, and culminating in his 1993 book Political Liberalism, which represented the principles as designed to foster societal agreement among people who held differing “comprehensive doctrines” about religion and morality, simply for the sake of guaranteeing civic peace and toleration. To achieve that goal, he stressed the necessity that public debate about political issues be grounded in secular, “rational” arguments rather than religious ones — forming an “overlapping consensus” among competing moral views. Hence, again following the left-liberal program, he continued to warn against allowing government to give any sort of endorsement to religion over atheism, and added the need for public campaign financing to prevent richer people’s voices from (somehow) crowding out those of the bulk of the population (despite the minority status of the former). He even added proposals for restricting commercial advertising, taking his doctrine even farther afield from any intelligible connection to justice.

While Rawls’ theory continues to be highly influential in academic departments of philosophy and political science, having spawned a veritable “industry” of hundreds of books and tens of thousands of articles, it has enjoyed its greatest practical impact in law schools, encouraging the (already previously incipient) tendency among teachers of jurisprudence and constitutional law, and consequently among their juristic progeny, to read their own moral “intuitions” into the Constitution and statute law. Those who believe in the cause of constitutional self-government might well doubt whether the growing judicialization of our political life that Rawls’ teaching promoted is a salutary development, or whether therefore Rawls’ work indeed served to revive the “faith” of “learned Americans” in the system of democratic government bequeathed to us by the Founders — rather than simply flattering the egos of a certain class of Americans by giving their partisan opinions an ostensibly philosophical gronding.

Above all, Rawls’ treatment of the fact of political disagreement as a problem to be solved by getting people to agree on a particular “theory” of justice — rather than as the starting point of philosophic reflection (as seen most manifestly in writings like Plato’s dialogues, Aristotle’s treatises, or Tocqueville’s Democracy in America) — evinces an attitude is both antiphilosophical and antipolitical. In an age of unfortunately growing political polarization, its tendency is to obstruct what liberally educated citizens most need to learn: how to engage in open-ended dialogue with their fellows about what is good and just, enlightened by the study of classic philosophical works offering differing answers to that question, but unconstrained by any veil of ignorance, let alone by the certainty that any disagreement with one’s own favored outlook is inevitably the result of an insufficient commitment to justice.