On the Legacy of A Theory of Justice

How should we consider its own heritage?

Many Law & Liberty subscribers are acquainted with Theory’s fundamental arguments. But the task of assessing its heritage is complicated by the reality that Rawls’s ideas changed over the years, along with the reasons for these modifications remain a topic of controversy. I’m not a Rawlsian, along with my interest in the finer points of Rawlsian pupil has limitations. But as a person who routinely teaches Rawls and also sympathizes with elements of his project, I really have some ideas about its legacy.

Rawls’s lifelong endeavor was an effort at political conflict-resolution at a high level of philosophical abstraction. He worked to get the most part of what he called”perfect theory,” talking political arrangements since they could be”but for” background and happenstance. Nevertheless Rawls always considered ideal theory as a prelude to”non-ideal theory,” that the task of reforming political structures to be able to bring them more in accordance with reason. He was something of a”rationalist,” as Michael Oakeshott used the expression. But unlike an intense rationalist, he did not theorize out of a blank slate. Rather, he began from certain political and ethical sentiments that are present in contemporary liberal society.

Rawls’s Job in Theory

The basic ideas that framework Theory derive from those generally held sentiments: democracy, fairness, equal liberty, equal opportunity, and the demand for social cooperation. Rawls presents them as axiomatic even though, for others, they might merit investigation. Against this backdrop, Theory attempts to describe the fundamentals of liberal liberty and equality in this manner that everyone, or almost everyone, will take the ending results as fair, regardless of their personal circumstances. Rich or poor, fortunate or unfortunate, all taxpayers will feel they are involved with a cooperative system which acknowledges and respects them as persons.

Theory includes three components. The initial offers two principles of justice and explains, using the thought experiment of this”first position” and its”veil of ignorance,” why taxpayers should take those principles for regulating what Rawls calls the”basic structure” of society. The second part considers how these principles might be institutionalized in political practices and norms. The next part endeavors to demonstrate how involvement in the consequent”well-ordered society” is compatible with a strong, general conception of the good, which Rawls expects citizens will find attractive. If Rawls were successful, taxpayers would delight in the pursuit of a great existence as free and rational beings at a secure, well-ordered society.

But in reality they demand radical egalitarianism. True, everybody is to enjoy a comprehensive list of”fundamental liberties”–such is the gist of this very first principle, which Rawls gifts as”lexically before” to the next. Nevertheless, the second nonetheless opens the door to massive state intervention to be able to guarantee not just formal but meaningful equality of opportunity, as well as a far-reaching system of redistribution to be able to provide welfare and to regulate economic inequalities as time passes.

In actuality, it is tough to comprehend the ambition of Rawls’s project in Theory; and it required at least two decades for the crucial dust to settle. Early on, the praise was so epic. For example, Robert Nozick, who was very critical of Theory, nonetheless explained it in 1974 as”a strong, deep, subtle, broad, orderly work in political and ethical philosophy that 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 revealed how Rawls’s first principle paid insufficient attention to competing rights and liberties and to the tension between liberty and other significant social goods. Nozick himself revealed that the idea of distributive justice Rawls’s second principle was at odds with a”historical-entitlement” perspective grounded in human rights and freedoms. Michael Sandel contended that Rawls’s abstract theorizing paid insufficient respect to this concrete, communal wellsprings of justice. Marxists assaulted him to be an ideologist of this status quo, and feminists for his clear acceptance of this family. Rawls’s Theory was undoubtedly effective in simplifying the dialogue in political doctrine, but it certainly did not suit everybody.

Revision: Political Liberalism

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

One way to see this (but maybe it is too easy ) would be to state Rawls realized that his presentation at Theory”begged the issue,” because it assumed without argument one ethical frame (neo-Kantianism) among other sensible rivals. Another way to view it is that Rawls never thought 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 appealing. Either way, Rawls had suppressed the issue of acceptable pluralism and now needed to try again.

In addition, Rawls now recast his whole theory at a far more abstemious manner, presenting it as a”political notion,” without reliance for its substance or justification to any metaphysical or religious doctrines not already shared among taxpayers. All these alterations, commonly known as Rawls’s”political turn,” allowed Rawls to reply to the issue of pluralism. But they also (I’d argue) rendered his theory less coherent, especially in its radical egalitarianism.

In outline, the theory of Political Liberalism goes something like this. In modern liberal societies, taxpayers obviously adopt multiple, sometimes indicative”comprehensive doctrines” about life’s meaning and the possibilities of politics. Pluralism don’t lead to recalcitrance or intellectual laziness, but might arise naturally from valid obstacles to discovering truth (what Rawls calls the”burdens of judgment”): contradictory or vague evidence, different life experiences, and rival normative factors.

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

Instead, Rawls believes we ought to discover terms of political arrangement that are”freestanding,” referring to their rationale not to contentious comprehensive doctrines but to ideas already embedded into our everyday life together. Moreover, we ought to limit the reach of political arrangement to the most basic domain (particularly, the”basic construction”)–in the expectation that most taxpayers are going to have the ability to concur wholeheartedly (i.e., reach an”overlapping consensus”) on the basic principles of political alliance.

Finally, once taxpayers agree to the essentials of the basic arrangement, they are going to have touchstones in that to cause preexisting conflicts that arise. Referring back to the basic principles, taxpayers can offer”public grounds” about what society should do.

The outcome, I believe, are blended. Rawls was right to admit pluralism as a permanent feature of liberal society. His treatment of this subject was not as penetrating as the top theorists of pluralism out of Michael Oakeshott and Isaiah Berlin to Stuart Hampshire and Bernard Williams. Nevertheless, it was certainly solid enough to place theoretical obstacles in the way of that which we could call the”politics of unified vision.” Rawls confirmed that the U.S. isn’t and never will be a polity like Calvin’s Geneva where everybody agrees on the ends to be pursued; and it is time we stopped approaching politics this manner.

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

The target is to triumph and wield the power of this state in pursuit of one’s own ethical vision–enemies become damned. This, however, will not operate at a pluralist society committed to liberty and proper equality.As a consequence, Rawls began to soft-pedal his next principle of justice, even beginning with Political Liberalism and ending with his final work, Justice as Fairness: A Restatement (2001), in which he writes quite honestly:”[T]he justification for the very first principle is, I believe, very incisive;… the justification for the difference principle, is less conclusive. It ends up on a more delicate equilibrium of less decisive factors.”

Perhaps due to his principles of justice seemed less persuasive after accepting pluralism more critically, Rawls turned to the subject of legitimacy. This can be contested: there are various accounts of why Rawls concentrated on legitimacy starting in Political Liberalism and ongoing throughout Justice as Fairness. But if his aim should happen to find motives for political unity independent from both principles of justice, I don’t believe he triumphed. This isn’t simply because, as Rawls says , his”principle of legitimacy [has] the same basis as the substantive principles of justice.” They flow out of the same neo-Kantian spring, so I’d say. It’s also because Rawls’s consideration of legitimacy is insufficient on its face.

Rawls believes the practice of political power among taxpayers considered equal and free is valid”just when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal might rather be expected to endorse in the light of principles and ideals acceptable for their ordinary human reason.” Rejecting both a”consent theory” of legitimacy and a”tacit-consent theory,” Rawls follows Kant in supplying exactly some call a”hypothetical-consent theory.” Legitimate rules are what taxpayers could”reasonably be expected” to consent to, not just what they really consent to.

But a problem arises when governmental legitimacy is approached this way: What occurs when no such agreement about fundamental principles of justice, let alone the”constitutional essentials,” is coming? Rawls knows of this. He writes,”there is no guarantee that justice as fairness, or any fair notion for a democratic regime, so could get the support of the overlapping consensus and at that manner underwrite the stability of its constitution.” But when no agreement is coming –and this is sadly our present state of events in the USA and in many liberal regimes–then the issue of legitimacy remains unsolved. The state employs coercive power, as it must do so when the regime is to be maintained. But such coercion will consistently look illegitimate to”free and equal” taxpayers who disagree with its ends.

Rawls’s reply isalso, in effect,”well, taxpayers don’t have to really consent; it suffices that they pretty should.” But this to really have a notably paternalistic position on the issue of legitimacy, one that’s incompatible with ordinary notions of liberty and equality. Who is to decide exactly what”reasonably should” to be okay?

The Failure of Rawls’s Job

The issue with the primary principle (equal fundamental rights and liberties) is that the rights and liberties in query are decided not by any historical account of Western constitutionalism and political practices, but by a thought experiment inspired by a distinctly”optimistic” sense of independence:”We consider what liberties offer the political and social conditions necessary for the adequate development and complete practice of the two moral powers of equal and free persons”–the two powers being the capacity for a sense of justice and a conception of the good.

Notably absent from Rawls’s set of fundamental liberties is a right to personal property in productive assets. This isn’t an omission, but rather fits Rawls’s desire”to place all taxpayers in a position to handle their own affairs on a footing of a suitable level of economic and social equality.” To try it, Rawls must ensure”widespread ownership of productive forces,” by seizing and redistributing productive assets according to a rational plan. It must really come as no surprise that Rawls cannot determine ultimately whether a”property-owning inherent democracy” or a”liberal socialist regime” best fits his theory of justice: He says that they both do.

Equally problematic is that a portion of Rawls’s second principle known as the”equal opportunity principle”–i.e., insofar as there are”economic and social inequalities,” that the”offices and positions” to which they’re connected must be”available to all under conditions of fair equality of opportunity.” The difficulty is that cannot possibly be achieved. [All should have] the same prospects of culture and achievement.”

To do this, Rawls suggests that”a free-market system… be set within a framework of political and legal institutions” which”establish, among other matters, equal chances of education for everyone regardless of household income” and that”correct the extended trend of financial forces so as to prevent excessive concentrations of property and wealth, especially those likely to contribute to political domination.”

Needless to say, expanding educational opportunities for the less well-off seems desirable in the abstract. So too does averting disparities of wealth from translating into disparities of energy (the issue of”domination”). But to state that a society isn’t only unless educational opportunities are equivalent, or until”excessive” (whatever that means) concentrations of property and wealth are eliminated, is in effect to state that just a radically egalitarian society could be truly only. Just something approaching complete equality is going to do, because where there is inequality at all, and also the liberty to do so we will, gaps in educational opportunities and concentrations of wealth will emerge. The only way to prevent this is through suspension of liberty and redistribution of assets. No wonder Rawls was circumspect regarding the rights of property.

Another part of Rawls next principle, the so called”difference principle,” is also impractical. It states that economic and social inequalities have to be”to the best benefit of the least-advantaged members of society.” Interestingly, classical liberals and libertarians often justify economic inequality on just these grounds–which the least advantaged members of an free-market economy are, overall, better than they are otherwise. But Rawls implements an empirical claim (whether it is true is another question) to a normative state: just if inequalities redound to the best benefit of the least advantaged are that they just.

It isn’t clear for me that justice requires such a thing. But when it did, I still wonder how anybody could know if the state were really met–either in the aggregate or, even much more problematically, in particular trades and investments of one’s time, energy, and material resources. Rawls’s strategy would be to demonstrate that his”difference principle” would likely be considered more simply than just one contender: the pragmatic principle of typical utility. Perhaps he’s right. It could be done, possibly, through regular redistribution at the end of fixed periods. But how can we know in advance that the least advantaged are in fact better served under a system of redistribution than they would be, long lasting, under a system of financial freedom? As von Mises has famously argued, the amount available to disperse over time is dependent on the system in which wealth is made. Redistribution may well have adverse consequences for wealth creation.

By exactly the same token, how can we know in advance the effects which redistrubtion could have on entrepreneurial imagination and invention, once these have been severed from the expectation of a complete reward?

Construction on the Ruins

A fascinating feature of Rawls’s mature theory is that the level to which it contains elements that support a far more”liberal” theory (in the classical sense) of limited government and individual liberty. As a way of finishing my account of Rawls’s heritage, I want to catalog these elements and reveal where I presume they point.

Rawls rightly recognized that the challenge of liberal regimes would be to preserve peace, order, and a feeling of legitimacy in the face of three basic conditions: a dedication to human liberty, a dedication to formal equality, and the presence of realistic pluralism. American political writers and actors have to learn out of Rawls with this point. We cannot struggle or fool our way to political unity and the collective pursuit of purposeful moral visions. Rawls noticed something more, which is that regimes where these three basic conditions obtain can’t, technically speaking, be known as”communities” or”associations.” They’re quite a distinct sort of human connection,”political affiliation,” in which, because of pluralism, controversial ethical purposes cannot be pursued without breaking freedom and equality. Politics should hence be non-purposive to the best extent possible.

Rawls also known that unlike communities and associations, which can be voluntary (e.g., could be entered into and left will) political connection is compulsory: there is no easy exit. He understood and worried about the fact that”political authority is obviously coercive power.” And he then drew the right conclusion from these details: The use of this state to pursue contentious ends at a circumstance where taxpayers don’t have any departure would be, on the face of it”incompatible with fundamental democratic liberties.” So much for the modern progressive agenda.

I’d mention one other part of Rawls’s theory that I think is fruitful for prospective liberal theorizing, though I realize that it will be more contentious than the things previously. Rawls presents liberal political affiliation essentially as a form of cooperation, not competition, much less war. He provides no justification for this fundamental starting point of his thought. And, of course, he goes on to use the idea of cooperation to be able to press for an egalitarian society, that I’ve already revealed violates liberty and equality. Still, like Rawls, I respect alliance as the ideal method to understand and practice liberal politics.

The target is to triumph and wield the power of this state in pursuit of one’s own ethical vision–enemies become damned. This, however, will not operate at a pluralist society committed to liberty and proper equality. A better way to know politics will be as an ongoing discussion of truce among taxpayers who might differ radically and remain committed to living together in peaceof mind. Cooperation don’t imply distributive justice as it’s for Rawls; however, it could and should mean a commitment to understanding each other officially as political leaders.

A corollary of this understanding of politics is that the usage of national power ought to be limited to purposes about which all, or almost all, citizens concur. Greater electricity may, obviously be exercised at more local levels of government where”depart” is simpler and pluralism less conspicuous; or by voluntary organizations working on a small or a large scale, as social issues need. But national power, as an issue of ethical principle, ought to be limited to purposes upon which many taxpayers can agree.

In the long run, I personally find at the flames of Rawls’s political theory the grounds to get a classical-liberal theory of politics, rich in associational life and restrained in domestic pursuits. It appears improbable that the U.S. will head in this direction anytime soon, but it is a direction I’d regard as only.