A Threat to Liberty–and Justice

No American author over the past fifty years has achieved greater damage to the analysis of political philosophy, to jurisprudence, or to the foundations of our Constitutional regime than John Rawls. Although some details of his theory have been ably criticized by Professor Corey, the real issue goes far deeper, from the way that Rawls conceives his job of”ethical theory” Simply put, accountable for the Constitutional order that currently exists in the USA, and its foundation in the thought of liberal people and statesmen like Locke, Montesquieu, and the American Founders, Rawls writes as though the fact that people disagree about the dictates of justice–a phenomenon characteristic of political life under any non-despotic political regime–is a problem to be”resolved” by getting everyone to agree to a”theory” chased by a single philosophy professor or the other. Once this assumption is accepted, it matters whether the theory in question is really a redistributive one like Rawls’s or even a libertarian one like Robert Nozick’s. The fundamental issue with Rawls’s strategy, as critics like Benjamin Barber and Seyla Benhabib have observed, is the fact that it tries to eliminate politics.
While their intentions might be less violent, think about how far movements like Antifa and the Proud Boys are from winning the sort of popular support which allowed the large-sale warfare waged over the streets of Weimar Germany–or people of Thucydides’ Corcyra.
With the exception of 1860 (and perhaps of partisan extremists following the elections of 2016 and 2020), that the vast majority have confessed that, even if their preferred party loses an election–meaning that the coverages government pursues on everything from taxes to defense to regulation to offense to judicial appointments are not those they most favored–they’ll continue to delight in a fair security of life, liberty, and property, thanks to our Constitutional order.
This consensus has been recorded by writers ranging from Tocqueville–view his discussion of”small” vs.”good” parties–to historians like Louis Hartz and Daniel Boorstin. If anything should happen to make our politics more warlike, it could be a text like A Theory of Justice that informs people that if their vision of justice or the great life differs in the author’s, their aspirations have”no value.” (Rawls uses that word into connote”conceptions of the good” that violate that which he maintains are the “wide limits” that his principles impose “the sort of men that guys wish to be.” For example, people whose perspectives of the great society involve placing legal limitations to”spiritual and sexual practices” that look”black or degrading” would automatically have their perspectives ruled out of the political arena. Surely, judicial rulings that read policies like homosexual marriage and transgender rights to our Constitution and legislation, following Rawls’s plan of dismissing that the electoral , have tended to spark popular passions into an unhealthy level, generating what is broadly referred to as a”culture war.”)
Freedom and Community
I think there is far less to Rawls’s theory, in either its first or revised versions, compared to Corey maintains. Contrary to Corey, we needed Rawls to inform us that a liberal program must guarantee individual freedom, equality before the law,” and”reasonable pluralism.” (Watch, on the last, Federalist 10.) Nor do we have”much to learn from Rawls” into the result that a diverse, liberal country like ours cannot at the exact same time be a”community” according to some group of shared”ethical functions.” Our need for a widely shared, albeit limited, morality, has been addressed at length by such liberal scholars as William Galston and also Peter Berkowitz. As Madison observed in Federalist 55, a republican government like ours presupposes, over any other form, a high level of moral merit. (Think of such virtues as patriotism, courage, tolerance, compassion, moderation, honesty, industry, thrift, and dedication to family.) But we barely needed Rawls to describe that our country will never be”that a polity like Calvin’s Geneva”!
By Rawls’s time, of course, Americans’ general standards of moral behaviour had become much less restrictive than in the past–thanks to innovations like no-fault divorce, that the legalization of abortion and pornography, and also a judicial mandate of rigorous governmental neutrality between religion and atheism. These developments certainly grapple with Rawls’s morally libertarian goal. (In the time of this writing, the Biden administration had just removed the ban on admitting transgendered individuals to the military, without a consideration being given to the impact on unit cohesion, although the New York State legislature is contemplating a proposal to legalize streetwalking.)
But how could the massive bulk of Americans were induced to endure such sacrifices as they did to their country in conflicts like World War II with no sort of human feeling which Aristotle (Politics III.9) deems essential for a political community? Consider the peroration of all Lincoln’s First Inaugural Address, attractive to such notions of brotherhood in a bid to prevent the Union from falling apart. And as to the consequences on our domestic well-being of the sort of libertarian sexual morality that Rawls and his frenemy Nozick ordained as a mandate of justice, then consult with the writings of educated observers like Myron Magnet and Mary Eberstadt–or else, as Christopher Wren’s epitaph ordains, just look about you.
What Corey means by stating that politics should be”non-purposive into the greatest extent possible” is beyond me, because it could have been around the writers of the Declaration of Independence.   Just as it is natural for human beings to pursue specific purposes in their lives, it is inevitable that in forming and seeking to maintain political communities, they’ll expect the government to enact policies that they think (accurately or not) will help them, and will want to persuade their fellow citizens to prefer those policies also. As Aristotle puts it in his Politics, while human beings initially form cities for the sake of life, these cities keep in life as means to living well.

Turning to the particulars of Rawls’s”two principles of justice,” Corey rightly criticizes the very first principle, ordaining that the”highest equal liberty” for all, and delegating it”priority” within the next principle (that legitimizes inequalities in economic and social goods so long as they maximize the well-being of the”least advantaged”) because of its abstractness. In actuality, Rawls’s mandate that”liberty can be restricted just for the sake of liberty” is without significant significance whatsoever : every law restricts people’s liberty to do something or other! Rawls’s consignment of financial liberties into his next principle–as if the right to earn a living in a commerce of one’s choosing, or to have one’s house secured against theft or lawless governmental confiscation, were not as vital than freedom of speech, the media, or faith –was absolutely arbitrary, a manifestation of their Progressive liberalism of the time and milieu, was given judicial imprimatur from the Supreme Court’s”preferred place” philosophy in the 1930’s.
Those who wish truly to promote liberty and justice should leave”moral theory” and then return to the analysis of classic texts of political philosophy in addition to the writings of the greatest American statesmen, all whose expressions involved the serious, open-minded consideration of alternative political statements, also grounded their reports of justice in an understanding of human nature.Contrary into Corey, Rawls does not literally mandate governmental redistribution of land, in the feeling of its lead seizure. Instead, he urged these conventional liberal policies since progressive income and estate taxes. Yet, as classical liberal and libertarian writers like John Tomasi have pointed out (and as Corey properly notes), there’s no reason to suppose that the financial well-being of the”least advantaged” wouldn’t be more inclined to be improved by means of a system that allows and encourages the most gifted and loved ones of society to earn high rewards, as opposed to through redistributive taxation, because in so doing they would be elevating the great deal of their weakest fellow citizens also.
But there is a deeper rationale underlying Rawls’s difference principle compared to solicitude for your welfare of the bad. In Part Three of Theory, he enunciates a remarkable philosophy of”excusable envy”–in violation of every one of the wonderful spiritual and cultural customs –based on that it is”logical” for all those lower down the economic scale to feel envious of these wealthier than they’re, in the event the inequalities between them exceed certain (unspecified) limitations. It’s at this point that we find the underlying if unacknowledged connection between Rawls’s philosophy and that of Karl Marx, perhaps inspiring the name of a recent study by William Edmundson, John Rawls: Reticent Socialist. So far as I know, the only precedent behind Rawls’s difference principle is Marx’s and Engels’s mockery of their so-called”utopian” socialist rivals, in Part III of this Communist Manifesto, on the floor that they hunted”to improve the state of every member of society,” rather than benefit solely the oppressed proletarians.
Just as there was no room from the Marxian scheme for people who found the guaranteed proletarian dictatorship (to be managed with”Communists” like Marx and Engels themselves) harmful to their well-being, Rawls tells readers who find his scheme antithetical to their good that”their nature is their misfortune.” While Rawls was no violent radical, he, including Marx and Engels, aimed to promote resentment among the different classes, rather than serve the frequent good. (He offered just the lame explanation that given the need to operationalize the term”common good,” it would be easiest, provided the”ethos” of a modern democratic society, to recognize that the common good with the least advantaged.
In this light, it is crucial to remember that Rawls did not in the end prioritize political liberty in any way, contrary to his claims. He expressed a studied agnosticism as to whether his fundamentals tended to prefer a free-market economy over a socialist person, oblivious to the philosophical association between the latter and the refusal of political freedom. He evinced no awareness that a political program that makes everybody a worker of the state deprives them of the independence that would let them criticize the authorities –or even openly detract from now reigning political styles. (Consider now’s”cancel culture.”) Even in his earlier writings, Rawls enabled that the priority of liberty can justifiably be suspended if such suspension proved necessary to progress the”social and economic” state of the poor–thus sanctioning the alibi provided by every Marxist despotism for its denial of freedom and the rule of law, even though the refusal served solely to improve the despots’ wealth and power.
In the 1996 debut to Political Liberalism, Rawls actually endorsed the criticism of”Hegel, Marxist, and socialist writers” that the liberties guaranteed by the Declaration of Independence, taken by themselves, are”purely formal” and quantity at best to”an impoverished form of liberalism.” Instead of permit the level of financial regulation or degree of tax in a free society to be negotiated through the political process, due to varying conditions and competing partisan demands, Rawls insisted that his own concept be substituted to the good older one embodied in the records that Americans inherited by the patriots of 1776, 1787, and 1865, ideally putting political dispute to a conclusion.

Ever since Theory was first released, it has functioned as a model for academics of political or ethical”theory” or jurisprudence to generate their own subjective, utopian versions of a mere society, impervious to political and financial realities. Rawls’s schooling has functioned only to hamper the true bases of political freedom and of conventional,”bourgeois” morality.
Those who wish truly to promote liberty and justice should leave”moral theory” and then return to the analysis of classic texts of political philosophy in addition to the writings of the greatest American statesmen, all whose expressions involved the serious, open-minded consideration of alternative political statements, also grounded their reports of justice in an understanding of human nature. Most importantly, unlike Rawls, they respected the principle of government by the consent of the governed.