On the Legacy of A Theory of Justice

A Theory of Justice (1971)was one of the most influential works of twentieth-century political concept, and we’ve now arrived during its 50th anniversary. How should we consider its heritage?
Many Law & Liberty subscribers are familiar with all Theory’s fundamental arguments. But the job of assessing its legacy is complicated by the fact that Rawls’s ideas changed over the years, along with the reasons for these developments remain a topic of lively controversy. I’m not even a Rawlsian, along with also my own interest in the finer things of Rawlsian scholarship has limits. But as a person who routinely instructs Rawls and also sympathizes with components of his job, I do have some thoughts about its legacy.
Rawls’s lifelong endeavor was an effort at political conflict-resolution in a high degree of philosophical abstraction. He worked for the most part of what he called”perfect theory,” discussing political arrangements as they might be”but also for” history and happenstance. Nevertheless Rawls always considered ideal theory for a prelude to”non-ideal concept,” that the job of reforming political arrangements to be able to bring them more in accord with reason. But unlike an extreme rationalist, he didn’t theorize out of a blank slate. Instead, he began from particular moral and political sentiments that are found in modern liberal society.
Rawls’s Project in Theory
The fundamental ideas that frame Theory derive from those generally held thoughts: democracy, fairness, and equal freedom, equal opportunity, and the demand for social cooperation. Rawls presents these as axiomatic though, for many others, they may justify investigation. Against this backdrop, Theory attempts to explain the essentials of liberal liberty and equality in this way that everyone, or almost everyone, will take the end results as honest, regardless of their personal conditions. Rich or poor, fortunate or unfortunate, all citizens will sense they take part in a cooperative system which acknowledges and respects them as persons.
Theory contains three parts. The second section considers how these principles may be institutionalized in political practices and norms. The third part jobs to show how participation in the resulting”well-ordered society” is compatible with a robust, general conception of the fine, which Rawls expects citizens will find attractive. If Rawls were successful, citizens would take pleasure in the pursuit of a good existence as free and rational beings in a stable, well-ordered society.
Rawls’s two principles of justice purport to balance equality and liberty. But in fact they require radical egalitarianism. True, everybody is to enjoy a comprehensive list of”fundamental liberties”–such is the gist of the first principle, which Rawls presents as”lexically prior” to the next. Nevertheless, the second nonetheless opens the door to huge state intervention to be able to ensure not only formal but substantive equality of opportunity, in addition to a more rigorous system of redistribution to be able to provide welfare and to regulate economic inequalities over time. Not a lot of this is instantly evident from the way Rawls said the next rule:”Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged… and (b) attached to positions and offices open to all under conditions of fair equality of opportunity.”
In actuality, it’s tough to comprehend the dream of Rawls’s job in Theory; plus it took two years for the important dust to listen. Early on, the praise was epic. For instance, Robert Nozick, that had been very critical of Theory, yet explained it in 1974 as”a strong, deep, subtle, extensive, orderly job in political and ethical philosophy which has never seen its like since the writings of John Stuart Mill, if then.”
But over time a number of rough criticisms emerged. H.L.A. Hart demonstrated how Rawls’s first principle paid inadequate focus on competing rights and liberties and to the tension between freedom and other important social goods. Nozick himself showed that the idea of distributive justice in Rawls’s second principle had been at odds using a”historical-entitlement” view grounded in individual rights and liberty. The initial place and veil of ignorance were derided by Allan Bloom as a”bloodless abstraction” offering no motive for anyone to continue under Rawls’s system if he did not like the results. Michael Sandel argued that Rawls’s abstract theorizing paid insufficient regard to the concrete, communal wellsprings of justice. Marxists attacked him for being an ideologist of the status quo, and feminists because of his apparent acceptance of the hierarchical family. Rawls’s Theory was undoubtedly effective in simplifying the dialogue in political doctrine, but it definitely did not suit everybody.
Revision: Political Liberalism
Accounts differ concerning the precise reason behind Rawls’s recasting of Theory in a second publication called Political Liberalism (1993), but many agree that it stemmed from the incompatibility of his own concept using reasonable pluralism regarding ethical concepts such as justice and the good. Rawls came to doubt that both principles of justice would be supported, or, if they had been endorsed, that they would stay stable in a pluralist society.
One way to see this (but maybe it’s too simple) would be to state Rawls realized that his demonstration in Theory”begged the question,” since it assumed without debate one ethical frame (neo-Kantianism) one of other sensible rivals. A different approach to see it’s that Rawls never thought his concept as hinging on a single moral framework–Kantian or differently –but came to realize that given liberty of thought and enough time, rival fundamentals of justice might become appealing. In any event, Rawls had underestimated the problem of acceptable pluralism and now needed to try again.
Additionally, Rawls now recast his whole concept in a much more abstemious way, introducing it as a”political conception,” without reliance because of its own substance or justification on any metaphysical or religious doctrines not already shared among citizens. All these revisions, commonly known as Rawls’s”political turn,” enabled Rawls to react to the problem of pluralism. But they also (I would argue) rendered his concept coherent, especially in its revolutionary egalitarianism.
In outline, the concept of Political Liberalism goes something like this. In contemporary liberal societies, citizens clearly adopt multiple, occasionally incompatible”comprehensive doctrines” regarding life’s meaning as well as the chances of politics.
But if pluralism is valid (if folks do and can reasonably hold incompatible comprehensive doctrines) and if we are serious about the value of individual liberty and formal equality, we should refrain from creating political life upon any detailed doctrine. To do differently would not only violate people’s liberty and equality, but it would likely perpetuate continuing political divisions and battle.
Rather, Rawls believes we should find terms of political agreement that are”freestanding,” speaking to their rationale not to contentious comprehensive doctrines however to notions already embedded into our everyday life together. In addition, we should limit the scope of political agreement to the most fundamental domain (particularly, the”basic structure”)–in the hope that most citizens are going to have the ability to concur wholeheartedly (i.e., attain an”overlapping consensus”) on the fundamental principles of political alliance.
In the end, once citizens agree to the principles of the simple structure, they are going to have touchstones from which to cause preexisting conflicts that come up. Referring back to the fundamental principles, citizens can offer”public grounds” about what society ought to do.
Now, it’s fair to ask just how nicely Rawls’s”political turn” (a) reacted to the problem of reasonable pluralism while (b) retaining the core elements of his original concept. The results, I think, are blended. Rawls was appropriate to acknowledge pluralism as a permanent characteristic of liberal society. His treatment of this subject wasn’t as penetrating as the best theorists of pluralism out of Michael Oakeshott and Isaiah Berlin to Stuart Hampshire and Bernard Williams. But it was definitely solid enough to place theoretical obstacles from the way of that which we might call the”politics of unified vision” Rawls affirmed that the U.S. is not and never will be a polity such as Calvin’s Geneva where everybody agrees on the ends must be pursued; and it’s high time we stopped coming politics this way.
Nevertheless, when it came to retaining his original concept, Rawls ran in to problems. Rawls’s egalitarianism may have been appealing within certain moral and political frameworks, however, it was surely not universally appealing and would probably not even control a bare majority of adherents.
The target is to win and wield the power of the nation in pursuit of a person’s own ethical vision–enemies be damned. This, however, will not work in a pluralist society dedicated to liberty and proper equality.As an outcome, Rawls began to soft-pedal his next principle of justice, even beginning with Political Liberalism and end with his final function, Justice as Fairness: A Restatement (2001), where he writes quite frankly:”[T]he reasoning for the first principle is, I think, quite incisive;… the reasoning because of the difference principle, is less conclusive. It turns on a more delicate balance of decisive considerations.”

Maybe because 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 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 do not think he succeeded. This is not just because, as Rawls states repeatedly, his”principle of legitimacy [has] the identical basis as the substantive principles of justice” They flow out of the same neo-Kantian spring, so I would say. It is also since Rawls’s consideration of legitimacy is insufficient on its surface.
Rawls believes the practice of political power among citizens regarded as free and equal is valid”only when it’s exercised in accordance with a constitution the essentials of which all citizens as free and equal may fairly be expected to support in the light of principles and ideals acceptable for their common human reason” Rejecting a”consent concept” of a”tacit-consent concept,” Rawls follows Kant in supplying exactly some call a”hypothetical-consent theory” Legitimate rules are what citizens may”reasonably be expected” to consent to, not just what they really consent to.
But a problem emerges when political legitimacy is approached such a way: What happens when no agreement about fundamental principles of justice, let alone the”inherent principles,” is coming? Rawls knows of this. He writes,”there’s plainly no promise that justice as fairness, or some other sensible conception for a democratic regime, so could add the support of the overlapping consensus and in that way underwrite the stability of its constitution” But in case no agreement is forthcoming–and this is sadly our current state of affairs in the United States and in many liberal regimes–then the problem of legitimacy remains unsolved. The state employs coercive power, since it must do this if the plan is to be maintained. But such coercion will constantly look illegitimate to”free and equal” citizens who disagree with its ends.
Rawls’s answer isalso, in effect,”well, citizens don’t have to really consent; it suffices that they pretty ought to.” But this to take a notably paternalistic place on the problem 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 Truth About Rawls’s Project

The problem with the original principle (equal fundamental rights and liberties) is that the rights and liberties in query are decided not by some other historical account 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 social conditions essential for the adequate development and full practice of the two moral forces of free and equal persons”–the two forces being the capacity for a sense of justice and a conception of the good.
Notably absent in Rawls’s list of fundamental liberties is a right to personal property from productive assets. This is not an omission, but instead fits Rawls’s appetite”to set most citizens in a position to handle their own affairs on a foundation of a suitable level of economic and social equality.” It must really come as no surprise that Rawls can’t determine ultimately whether a”property-owning constitutional democracy” or even a”liberal socialist program” best fits his concept of justice: He says they do.
The problem is that this cannot possibly be attained. [We all should have] the same prospects of culture and achievement.”
To achieve this, Rawls proposes that”a free-market system… be put within a framework of legal and political institutions” which”establish, among other matters, equal chances of education for everyone regardless of household income” and which”adjust the extended trend of financial forces so as to prevent excessive levels of property and riches, especially those likely to contribute to political domination.”
Obviously, expanding educational opportunities for the well-off seems desirable from the abstract. So too can preventing disparities of wealth by translating into disparities of electricity (the problem of”domination”). But to state that a society is not just unless instructional opportunities are equal, or until”excessive” (whatever that means) levels of property and riches are eliminated, is in effect to state that a radically egalitarian society could be truly just. Just something approaching absolute equality is going to do, since where there is inequality whatsoever, and also the liberty to do as we will, gaps in educational opportunities and concentrations of wealth will emerge. The only method to prevent this is via suspension of liberty and redistribution of resources. Regardless of Rawls was circumspect about the rights of property.
The other portion of Rawls next principle, the so called”difference principle,” is also impractical. It says that economic and social inequalities have to be”to the greatest advantage of the least-advantaged members of society” Interestingly, classical liberals and libertarians often warrant economic inequality on just these grounds–which the least advantaged members of some foreign market are, overall, better off than they would be otherwise. But Rawls implements an empirical claim (if it’s accurate is a separate question) to a normative state: only if inequalities redound to the greatest advantage of the least advantaged are they just.
It is not obvious for me that justice requires any such thing. But if it did, I still wonder how anyone could know if the state were really fulfilled –either in the aggregate or, even a whole lot more problematically, particularly transactions and investments of one’s time, energy, and material assets. Rawls’s method would be to show that his”difference principle” would likely be recognized as more just than only one competitor: the utilitarian principle of average utility. Maybe he’s right. But the problems of ensuring that all financial transactions redound to the greatest advantage of the least advantaged are legion. It might be done, possibly, through routine redistribution in the conclusion of fixed periods. But how do we know beforehand that the least advantaged are actually better served under a method of redistribution than they would be, long lasting, under a system of financial freedom? As von Mises has famously argued, the total amount available to disperse over time is dependent upon the system where wealth is made. Redistribution may well have adverse consequences for wealth production.
By exactly the same token, how can we understand in advance the effects which redistrubtion might have on entrepreneurial imagination and innovation, after these were severed in the hope of a full reward?
Construction on the Ruins
As a method of concluding my account of Rawls’s legacy, I would like to catalog these components and reveal where I believe they point.
Rawls rightly known that the struggle of liberal regimes would be to preserve peace, order, and a sense of legitimacy in the surface of three fundamental conditions: a dedication to individual liberty, a dedication to appropriate equality, along with the presence of acceptable pluralism. American political writers and celebrities still have to learn out of Rawls on this point. Rawls discovered something more, and that’s that regimes where these three fundamental conditions obtain can’t, technically speaking, be known as”communities” or”associations” They are quite a distinct kind of human relationship,”political connection,” where, because of pluralism, controversial moral purposes can’t be pursued without breaking freedom and equality. Politics should hence be non-purposive to the greatest extent possible.
Rawls also known that unlike communities and associations, which can be voluntary (e.g., could be input into and exited at will) political relationship is compulsory: there is not any easy exit. He simultaneously understood and worried about the fact that”political power is obviously coercive power” And he then drew the perfect conclusion from these details: The coercive use of the country to pursue contentious ends in a situation where citizens have no departure would be, on the surface of it”incompatible with fundamental democratic liberties.” So much for the contemporary progressive agenda.
I would mention one other part of Rawls’s concept that I think is fruitful for future liberal theorizing, although I realize that it will be more contentious than the things previously. He offers no explanation for this fundamental starting point of his idea. And, naturally, he proceeds to use the concept of cooperation to be able to press for a cosmopolitan society, which I’ve already revealed violates liberty and equality. However, such as Rawls, I regard alliance as the best approach to understand and training liberal politics.
The target is to win and wield the power of the nation in pursuit of a person’s own ethical vision–enemies be damned. This, however, will not work in a pluralist society dedicated to liberty and proper equality. A better way to understand politics is as an ongoing negotiation of truce among citizens who may differ radically and remain dedicated to living together in peace. Cooperation need not imply distributive justice as it does 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 use of national power should be limited to functions about which all, or almost all, citizens concur. Greater electricity may, of course be exercised at more local levels of government by which”exit” is easier and pluralism less marked; or by voluntary organizations operating on a little or a huge scale, as social problems need. But national power, as a matter of ethical principle, should be limited to functions upon which many citizens can agree.
In the long run, thenI find in the flames of Rawls’s political concept the grounds for a classical-liberal concept of politics, rich in associational life and controlled in national pursuits. It seems unlikely that the U.S. will go in this route anytime soon, however it’s a direction I would regard as just.