Transcript powerpoint on Rawls

Jurisprudence LG 327
Topic 5
John Rawls: Justice, Liberalism
and the Social Contract
John Rawls; 1921-2002
Author of A Theory of Justice
(1971) - “many think [this]
the most important work in
political philosophy since
the writings of John Stuart
Mill” (Samuel Freeman)
Themes
• The idea of justice
• The relationship between law and justice
• Justice and the social contract: an alternative to natural
law
• The independence of moral and political theory in
political liberalism
• Rawls’ resurrection of the idea of the social contract: a
“device of representation”
• Justice as fairness and the “original position”
• The meaning of the “veil of ignorance”
• Justice as “political not metaphysical”
• Critics of Rawls: communitarianism and the “situated
self”
• Is Rawls’ theory of justice based on an “abstracted” or
“atomised” conception of the self?
• Author of:
- A Theory of Justice (1971;1999)
- Political Liberalism (1993)
- Justice as Fairness: a Restatement (2002)
- The Law of Peoples (1999)
• Introduction: the idea of justice
The relationship of justice to law?
The difference/relationship between ‘justice’
and ‘morality’?
Why is justice relevant to jurisprudence
(indeed to law)?
What is the subject of justice? How does this
make it different from morality?
• Rawls’ preoccupation is:
- What are the “fair terms of social cooperation”
on the basis of which we might determine the
justice and legitimacy of our law and institutions?
Where are these principles of justice to be found
are how may they be justified?
- For Rawls, the answer lies not in natural law or
even in ‘philosophy’ properly speaking, but
rather in the idea of a social contract,
constructed on terms that reflect the status of
citizens as free and equal moral persons
• The ‘principles of justice’ are those
principles that rational persons would
agree upon if they were deliberating from
a hypothetically impartial standpoint,
ignorant of certain morally-arbitrary factors
such as wealth, gender, race, power,
religion, etc.
• However, justice pertains to the “basic
structure” of society only – it has no
“regulative role for all of life” – so the
subject of justice is very different from the
subject of morality and we could not base
the “terms of social cooperation” on a
“comprehensive” worldview, a moral or a
religious doctrine.
“…some have claimed that [the principles of
justice] are specified … by an authority
distinct from the persons cooperating … say
God’s law, or with reference to natural law, or
a moral order of values.”
… instead, “the fair terms of social
cooperation” are derived from an“agreement
reached by free and equal citizens”
[Justice as Fairness: a Restatement]
• Because this agreement is to bound persons
conceived as free and equal, the terms of this
agreement must be “fair” and not defined with
reference to any “comprehensive” philosophy or
worldview:
“in justice as fairness a democratic political
society has no shared values and ends apart
from those falling under or connected with
the political conception of justice itself.”
• In basing justice on the idea of contract, Rawls
attempts to “generalize and carry to a higher
order of abstraction the traditional theory of the
social contract as represented by Locke,
Rousseau and Kant”
• However, this contract is meant as a hypothesis,
a “thought experiment” in which we exclude
certain reasons from deliberation on the scope
of justice
• This is the sense in which justice is “political not
metaphysical”. It regulates the institutions of a society
characterised by “reasonable pluralism”, therefore
cannot be based on any “comprehensive” doctrine
• This arises because justice is a sub-set of morality
• Justice is “the cardinal virtue of institutions, as truth is of
systems of thought.”
• Justice is defined by fairness in the terms of social
cooperation, rather than by any broader objective ‘truth’
• Political philosophy, specifically, cannot provide the
answer to all dilemmas
• Why is justice different from ethical theory?
• Justice applies to the State rather than to private
individuals and private relationships; Aristotle wrote
“when men are friends they have no need of justice”.
• What is important about Rawls’s work is
how he frames justice as independent
from other forms of morality, in the way
that he roots in the idea of social contract
rather than any conception of ‘natural law’
• Justice, as it applies to a whole society of
persons, cannot be based on any “zeal for
the complete truth”
• For Rawls, the role of political philosophy
to see whether “some underlying basis of
philosophical and moral agreement can be
uncovered”, or at least that a basis of
social cooperation on a “footing of mutual
respect among citizens may be
maintained”.
• The preoccupation of political philosophy
therefore cannot be truth as such
Rawls’s critique of utilitarianism:
Utilitarianism says that just institutions should
maximise the overall welfare or happiness of
society: it is the view that “the institutions of the
basic structure are to be arranged so as to
maximise the average welfare of the members of
society.”
Bentham rejected natural rights as “nonsense on
stilts” (in its rejection of natural law, utilitarianism
is often associated with legal positivism.
This was quite a radical idea in the 19th century
but Rawls rejected it as inadequate – it failed to
take the “separateness” of persons seriously
enough
Instead, Rawls wished to define what was “right”
as “prior” to individuals’ private conceptions of
“good”
This would better account for ideas of equality
and reciprocity
Utilitarianism might require that certain persons’
rights would be compromised in order to
facilitate a greater benefit for the society as a
whole: “justice denies that a loss of freedom for
some is made good by a greater good shared by
others”.
“There is no reason in principle … why the
violation of the liberty of a few might not be
made right by the greater good shared by
many.”
• He adds that not all interests are
“commensurable”:
– “in the history of democratic thought two
contrasting ideas of society have a prominent
place: one is the idea of society as a fair system
of social cooperation between citizens regarded
as free and equal; the other is the idea of society
as a social systems organised so as to produce
the most good summed over all its members”
– From Justice as Fairness: a Restatement
• Utilitarians, he says, overlook the special
type of moral justification required for the
state, as a coercive political authority:
‘in the light of what reasons and values
… what kind of a conception of justice
– can citizens legitimately exercise that
kind of coercive power over one
another?’ [ibid]
• Thus, looking to the overall welfare of society,
aggregated across its members, overlooks the value of
consent as the moral basis for the legitimation of public
authority:
• ‘political power is legitimate only when it is
exercised in accordance with a constitution … the
essential of which all citizens, as reasonable and
rationale, can endorse in light of their common
human reason … this is the liberal principle of
legitimacy’ [ibid]
• “the fundamental status in political society is equal
citizenship, a status all have as free and equal
persons”
• Thus, society is conceived as a fair
framework for social cooperation which
enables persons to pursue their own selfinterest – but on terms that all persons can
be expected to endorse as equals
Citizens are thus conceived as “free and equal”, living in
a social framework which they may reasonably endorse.
They are conceived as having two “moral powers”:
“(i) One such power is the capacity for a sense of
justice: it is the capacity to understand, to apply, and to
act from (and not merely in accordance with) the
principles of political justice that specify the fair terms of
social cooperation.
(ii) The other moral power is a capacity for a
conception of the good: it is the capacity to have, to
revise, and rationally to pursue a conception of the good.
Such a conception is an ordered family of final ends and
aims which specifies a person’s conception of what is of
value in human life or, alternatively, of what is regarded
as a fully worthwhile life. The elements of such a
conception are normally set within, and interpreted by,
certain comprehensive religious, philosophical, or
moral doctrines in the light of which the various ends
and aims are ordered and understood.”
• These “moral powers” play a role in the
original position: “since the veil of
ignorance prevents the parties from
knowing the comprehensive doctrines
and conception of the good of the
persons they represent, they must have
some other grounds for deciding which
principles to select in the original
position”
• Citizens are free and equal both in the sense that the
power legitimately exercised over them is based on
principles they may endorse in light of their “common
reason”, and also in the sense that they reserve to
themselves their choice of private or “comprehensive”
identity:
• “[they] claim the right to view their persons as
independent from and not identified with any
particular conceptions of the good, or scheme of
final ends. ”
• “given their moral power to form, to revise, an
rationally to pursue a conception of the good, their
public or legal identity as free persons is not
affected by changes over times in their determinate
conception of the good”
• They ‘regard themselves as self-authenticating
sources of valid claims’
• the conception of persons as free and equal is a
‘normative conception’, ‘given by political and moral
philosophy’
• In this way, persons are not regarded as “passive
carriers of desires” as under utilitarianism. They are
considered to have an intrinsic interest in, and capacity
for social cooperation.
• Therefore, the social contract is not justified in view of
citizens’ rational self-interest: they are “reasonable” as
well as “rational”
• In light of this, the “original position” models two
things:
• The “fair conditions under which …. citizens …
are to agree to the fair terms of cooperation
whereby the basic structure is to be regulated”
• it models “what we regard … as acceptable
restrictions on the reasons on the basis of which
the parties, situated in fair conditions, may
properly put forwards certain principles of
political justice and reject others”
• Rather than maximising overall utility, the parties in the
original position, having a “higher-order” interest in the
moral powers, seek a fair share of the “primary goods”:
• “these are various social conditions and all-purpose
means that are generally necessary to enable citizens to
adequately develop and fully exercise their two moral
powers, and to pursue their determinate conceptions of
the good”
• To derive these primary goods “we look to the normal
circumstances of human life in a democratic society” –
what do we need in order to exercise our “powers of
moral personality”?
• These are “things needed and required by
persons in light of the political conception of
persons … not merely as human beings apart
from any normative conception … not things it is
simply rational to want or desire … we use the
political conception, and not a comprehensive
moral doctrine, in specifying those needs and
requirements”
• “rational plans of life … depend on certain
primary goods for their formation, revision, and
successful execution”
• Principles of justice are defined from the standpoint of a
hypothetical ‘original position’ in which people know
nothing about their position in society
• What knowledge is available in the ‘original position’ –
and why?
“the fact that we occupy a particular social position, say,
is not a good reason for us to accept, or to expect others
to accept, a conception of justice that favors those in that
position. If we are wealthy, or poor, we do not expect
everyone else to accept a basic structure favouring the
wealthy, or the poor, simply for that reason. To model
this and other similar convictions, we do not let the
parties know the social position of the persons they
represent. The same idea is extended to other features
of persons by the veil of ignorance”
• This amounts to a “veil of ignorance” which
constrains the knowledge available to the parties
in the original position. The point of these
“modelled constraints” is to reflect individuals’
equal moral status
• The principles adopted will be just, says Rawls,
because they are adopted and agreed upon
from a standpoint of fairness
• The agreement ‘must not be distorted by the
particular features or circumstances of the
existing basic structure’
• The original position eliminates the ‘bargaining
advantages’ which may arise in a given society - ‘the
bargaining advantages that inevitably arise over time
within any society as a result of cumulative social
and historical tendencies’
• This means that our institutions must be justified
independently of the status quo
• This will ground an argument for distributive justice (see
ahead)
• However, why should we set aside our talents and
“native endowments” in arguing about matters of justice?
• Note that in the original position, persons are
denied knowledge not only of their bargaining
advantages, but also, of their religious or
philosophical beliefs
• Why? To ensure that the principles of justice
decided upon are appropriate to a society
characterised by “reasonable pluralism”
• Is this inherently problematic?
• Note also that those in the original position are
not denied all knowledge: they are modelled as
“free and equal”
• Note that for Rawls, the “reasonable” takes
precedence over the “rational”. What do these
ideas mean?
• Reasonable persons are ‘ready to propose, or to
acknowledge when proposed by others, the
principles needed to specify what can be seem
by all as fair terms of cooperation’
• But it is ‘rational’ for those who ‘have a superior
political power or are placed in more fortunate
circumstances … to take advantage of their
situation’
• The two “principles of justice” arising from the
original position
• The parties in the OP would reject the ‘utility’ principle
given the constraints on their deliberation within the ‘veil
of ignorance’. Why?
• They do not know their position in society – they would
be unaware how the “calculus of social interests’ would
affect them. Since they are accorded a ‘higher-order
capacity’ to have and pursue a conception of the good,
they would be concerned less with ensuring that the
overall happiness or welfare of society were maximised
in an aggregate sense, than in ensuring that they
enjoyed the social and institutional conditions which
enabled them to form and pursue a rational plan of life
and revise this if necessary.
• The parties would not accept utilitarian
principles because it would render the
exercise of their choice of worldview
“subject to the calculus of social interests”
on the basis of “a greater net balance of
satisfaction.”
• Instead they demand a roughly equal
share of the “primary goods”. These are:
1 ‘The basic rights and liberties: freedom of thought
and liberty of conscience, and the rest. These rights
and liberties are essential institutional conditions
required for the adequate development and full and
informed exercise of the two moral powers’
2 freedom of movement and free choice of occupation
3 powers and prerogatives of offices and positions of
authority, responsibility
4 Income and wealth
5 ‘The social bases of self-respect, understood as those
aspects of basic institutions normally essential if citizens
are to have a lively sense of their worth as persons and
to be able to advance their ends with self-confidence’
Instead of the utility principle, or natural law, the parties in
the OP would settle on the following principles of justice:
1. equal liberty ‘each person has the same indefeasible
claim to a fully adequate scheme of equal basic
liberties, which scheme is compatible with the same
scheme of liberties for all’
2. Social and economic inequalities are to be arranged so
that
a) they are to be of the greatest benefit to the leastadvantaged members of society (the difference
principle).
b) offices and positions must be open to everyone under
conditions of fair equality of opportunity
• The selection of the difference principle is obtained
through the use of the maximin rule: ‘identify the worse
outcome of each available alternative and then to adopt
the alternative whose worst outcome is better than the
worst outcomes of all the other alternatives’
• The parties in the OP must focus on the “best worst
outcome” under each scenario considered in the OP
• It is rational for the parties ‘not to be much concerned for
what might be gained above what can be guaranteed by
adopting the alternative whose worst outcome is better
than the worst outcomes of all the other alternatives’
• The rejection of the utility principle
assumes that ‘there are realistic social
circumstances, even with reasonably
favourable conditions, under which the
principle of utility would require, or
allow, that the basic rights and liberties
of some be in various ways restricted,
or even denied altogether, for the sake
of greater benefits to others or for
society as a whole.”
• Since the principles of justice ‘secure the
basic rights and liberties equally for all …
and if the principle of utility may
sometimes permit or else require the
restriction or suppression of the rights
and liberties of some for the sake of a
greater aggregate of social well-being,
then the parties must agree to the two
principles of justice’
… “given the conception of the person in
justice as fairness, citizens have, among
other interests, certain religious,
philosophical and moral interests and that
the fulfilment of these interests must, if
possible, be guaranteed. There are some
things we cannot give up; they are not
negotiable.”
• The first principle of justice is given priority over
the second given its “fundamental nature”: this
rules out “trade-offs” between the basic rights
and liberties and “social and economic
advantages.”
• … “the priority of liberty … means that a basic
liberty can be limited or denied only for the sake
of one or more other basic liberties, and never
for a greater public good understood as a net
sum of social and economic advantages for
society as a whole.”
• He claims the free market must be set within
framework that prevents the trend of long term
economic forces to concentrate property and wealth,
which lead to inequality of opportunity as well as
political domination
• “if we ignore the inequalities in people’s prospects
in life arising from these contingencies and let these
inequalities work themselves out while failing to
institute the regulations necessary to preserve
background justice, we would not be taking
seriously the idea of society as a fair systems of
cooperation between citizens as free and equal”
• Another assumption underpinning Rawls’ theory is that
wealth can only be created and sustained through the
framework of a coercive state which divides property and
transmits it between generations, therefore people could
only be expected to endorse and consent to the state if
they were given a stake in the benefits of social
cooperation, in the resources whose production was
enabled by the coercive framework of the law:
• ‘native endowments of various kinds … are not fixed
natural assets with a constant capacity …. they are
merely potential and cannot come to fruition apart
from social conditions’
• The “priority of liberty”
• Given the priority of the basic liberties, ‘we should
count among them only truly essential liberties’
• ‘these liberties are bound to conflict with one
another; hence the institutional rules specifying
them must be adjusted so that each liberty fits into a
coherent scheme of liberties.’
• ‘a liberty is more or less significant depending on
whether it is more or less essentially involved in, or
is a more or less necessary institutional means to
protect, the full and informed exercise of the moral
powers’
• In drawing up list of liberties, consider ‘what liberties
provide the political and social conditions essential
for the adequate development and full exercise of
the full moral powers of free and equal persons’
• …‘liberty of conscience and freedom of association
enable citizens to develop and exercise their moral
powers in forming and revising and in rationally
pursuing … their conceptions of the good’
• They ‘protect and secure the scope required for the
exercise of the two moral powers … judging the
justice of basic institutions, and pursuing our
conception of the good … essential to us as free and
equal citizens’
• This assumes that “our fundamental interests
connected with the exercise of citizens’ two moral
powers take priority over other interests”.
• Liberty of conscience reflects the ‘often intractable
nature of religious, philosophical and moral conflicts
in the absence of a secure public basis of mutual
trust.’
• The alternative idea represented by utilitarianism is
that ‘all human interests are commensurable … that
for any two interests, given the extent to which they
are satisfied, there is always some rate of exchange
at which a rational person is willing to accept a
lesser fulfilment of the one in return for a greater
fulfilment of the other’
• justice as fairness puts basic liberties “beyond the
calculus of social interests”
• These are “taken … off the political agenda” …
• “by contrast, to regard the calculus of social
interests as always relevant in specifying basic
rights and liberties, as the principle of utility
does, leaves the status and content of those
freedoms still unsettled. It subjects them to the
shifting circumstances of time and place.”
- Thus the advantage of justice as fairness is to
define justice independently of the demands of a
dominant, majority social or cultural norm
• Justice as fairness: “political not metaphysical”
• This means justice is not based on any theoretical
conception of objective, natural truth. It is rather an
exercise in “practical reason” that can uncover a “fair
basis for social cooperation” in a society of persons
regarded as possessing the moral powers
• The question being asked is less what is true/what is
good? – than what are the fair terms of justice for the
basic structure of a society of persons regarded as
themselves having the capacity to themselves decide
questions of ultimate truth or good?
• This encapsulates the “political” nature of Rawls’s social
contract – it does not regulate “all of life” – and illustrates
the difference with natural law
• This separating out of “political” and “comprehensive”
issues is related to the “liberal principle of legitimacy”:
• ‘political power is legitimate only when it is
exercised in accordance with a constitution … the
essential of which all citizens, as reasonable and
rationale, can endorse in light of their common
human reason … this is the liberal principle of
legitimacy’
• This is a more complex way of saying that the legitimacy
of government is derived from the consent of the
governed – here, consent is given on terms that do not
presuppose acceptance of any “comprehensive”
worldview
• Rawls says a democratic society cannot be a
community – in the sense of a body of persons
united in sharing the same comprehensive
doctrine – therefore the “terms of social
cooperation” in a just society cannot be based
on a shared comprehensive worldview that
everybody is expected to endorse
• There is because a “permanent condition” of
democratic societies is the “reasonable
pluralism” of worldviews within it. Consensus on
the “good life” could only be achieved through
the “oppressive use of state power”
• The fact that justice cannot be based on a
comprehensive worldview is linked with
the claim that citizens must be able to
determine their own ends and beliefs: they
“claim the right to view their persons as
independent from and not identified
with any particular conceptions of the
good, or scheme of final ends.”
• Therefore, ‘in justice as fairness a
democratic political society has no such
shared values and ends apart from those
falling under or connected with the political
conception of justice itself’
• Basic institutions should be ‘justifiable to all
citizens’, and not just those who accept a
particular private worldview. Grounds must be
‘accessible to citizens’ common reason’ – ie they
do not presuppose acceptance of any idea of
the good, or the final ends or purpose of their
life. A political doctrine would be one which
citizens can endorse whatever their private
worldview. For example, freedom of conscience
and religion – this is something that can be
accepted by reasonable persons independently
of what private worldviews they hold themselves
• So “liberalism” in Rawls’s theory is not based on
the idea of Enlightenment, autonomy or
individuality – or even the idea that persons’
worldviews should be rational and based on
autonomous deliberation – but rather on the idea
that the State must regard them as having
ownership or sovereignty over their “final ends”,
whatever these might be. He says that justice as
fairness is “not an Enlightenment project”.
• In this way he hopes his theory can form the
basis of an “overlapping consensus” between
different (reasonable) worldviews
• Thus, arguably, a state committed to “free
thought” or “Enlightenment” ideology cannot
respect equal liberty in the Rawlsian sense. It
must account for ‘the burdens of judgment’.
• This does not imply philosophical scepticism per
se (ie that there is no ultimate truth) – it merely
implies that this if for persons themselves to
resolve:
• ‘… it does not follow that there is no true
comprehensive doctrine … it only says that we
cannot expect to reach a workable political
agreement on what it is’
• ‘… deep religious and moral conflicts
characterise the subjective circumstances of
justice’
• Moreover he notes:
• “ it is a longstanding objection to liberalism that it is
hostile to certain ways of life and biased in favour of
others; or that it favors the values of autonomy and
individualist and opposes those of community and
associational allegiance. In reply, observe first that the
principles of any reasonable political conception must
impose restrictions on permissible comprehensive views,
and the basic institutions these principles require
inevitably encourage some ways of life and discourage
others, or even exclude them altogether.”
• Therefore, although political liberalism is derived
independently of any comprehensive worldview, it
cannot be strictly “neutral” between these
… ‘does this by itself imply that its political
conception of justice fails to be neutral between
[comprehensive doctrines]? Given the connotations
of ‘neutral’, perhaps it does fail, and this is a
difficulty with that term. But the important question
surely is whether the political conception is
arbitrarily biased against these views, or better,
whether it is just or unjust to the persons whose
conceptions they are … it would not appear to be
unjust to them, for social influences favoring some
doctrines over others cannot be avoided on any view
of political justice. No society can include within
itself all ways of life. We may indeed lament the
limited space … of social worlds.’
• He says that the politically-liberal state
should not impose any worldview on
children but it should educate them to the
idea of political justice itself – they must
gain a conception of themselves as “free
and equal”
……
• “… various religious sects oppose the culture of the
modern world and wish to lead their common life apart
from its foreign influences. A problem now arises from
their children’s education and the requirements the state
can impose … The liberalisms of Kant and Mill may lead
to requirements designed to foster the values of
autonomy and individuality as ideals to govern much if
not all of life. But political liberalism has a different aim
and requires far less. It will ask that children’s education
include such things as knowledge of their constitutional
and civil rights, so … that they know that liberty of
conscience exists … and that apostasy is not a legal
crime … their education should also prepare them to be
fully cooperating members of society, it should also
encourage the political virtues so that they want to honor
the fair terms of social cooperation”
• [From Justice as Fairness: a Restatement]
• To re-cap …
• “political power, as the power of free and equal
citizens, is to be exercised in ways that all
citizens as reasonable and rational might
endorse in the light of their common human
reason”
- ie the peculiar character of state power
requires a particular type of justification for its
exercise
Social unity is therefore rested not on a single
accepted truth but rather a shared basis of social
agreement that all persons can be ‘expected to
endorse’
• The fact of reasonable pluralism precludes
comprehensive doctrines ‘as a basis for a workable
political agreement on a conception of justice’
• ‘It is a permanent feature of the public culture of
democracy’
• ‘Just institutions … would serve no purpose – would
have no point - unless those institutions … not only
permitted but also sustained conceptions of the
good … that citizens can affirm as worthy of their full
allegiance. A conception of political justice must
contain within itself sufficient space … for ways of
life than can gain devoted support.’
• ‘an essential feature of a well-ordered society is
that its public conception of political justice
establishes a shared basis for citizens to justify
to one another their political judgments; each
cooperates, politically and socially, with the rest
on terms all can endorse as just’
• What he calls “public justification” … must
“proceed from some consensus” – which is the
basis of the social contract
• Therefore citizens must ‘be able to present to one
another publicly acceptable reasons for their political
views … our reasons should fall under the political
values expressed by a political conception of justice …
we must justify our use of corporate and coercive
political power … in the light of public reason.’
• ‘public reason is the form of reasoning appropriate
to equal citizens who as a corporate body impose
rules on one another backed by sanctions of state
power … shared guidelines for inquiry and methods
of reasoning make that reason public, while freedom
of speech and thought in a constitutional regime
make that reason free’
• Complete agreement in society is not possible, it is
only necessary to have agreement on the
constitutional essentials
• … ‘the aim of public justification is to preserve the
conditions of effective and democratic social cooperation
on a footing of mutual respect between citizens regarded
as free and equal’
• ‘… so far as possible, political liberalism neither
accepts nor rejects any particular comprehensive
doctrine, moral or religious… justice as fairness
hopes to put aside longstanding religious and
philosophical controversies and to avoid relying on
any particular comprehensive view’
• ‘… if this is achieved, we have an overlapping
consensus of reasonable doctrines’
• The defence of constitutional democracy is arranged
so as to win wide support but ‘we do not look to the
comprehensive doctrines that in fact exist and then
frame a political conception that strikes a balance
between them expressly designed to gain their
allegiance’. This would make justice as fairness ‘political
in the wrong way’
• Citizens ‘affirm the political conception [of justice] from
within different and opposing comprehensive doctrines’
• Justice as fairness takes account of the coercive nature
of state power. How can this be justified? (Answer – by
ensuring it is exercised by the light of principles which
can be justified independently of any worldview
• In light of the above, how is Rawls’s theory
of justice different to the natural law
theory?
• Criticisms of Rawls’s Theory
1. The priority of liberty: why should liberty take
precedence over everything else?
Hart argues that Rawls’s “preference for liberty
over other goods which every self-interested
person who is rational would have” rests on
“the ideal … of a public-spirited citizen who
prizes political activity.”
-“Rawls on Liberty and its Priority” (1973) 40 The
University of Chicago Law Review 534, p. 534.
• 2. The original position represents persons in an
unrealistic way, as detached from their ends and
commitments.
• This is sometimes called the ‘communitarian’ critique of
liberalism. It refuses to consider justice from the
standpoint of abstracted individuals choosing the terms
of social cooperation independently of their own
attachments and worldviews
• They disagree with the attempt to derive
universal principles of justice “from an idealised
standpoint”,independently of cultural, religious
and other particularities. The state should not
recognise the individual in the abstract but also
the community within which he operates
• See generally M. Walzer, Spheres of Justice
(Oxford: Blackwell, 1983); M. Sandel, Liberalism
and the Limits of Justice (Oxford, 1989)
• Communitarians focus instead on “socially and
historically situated subjects … understood as members
of communities and as bearers of particular identities”
(Pettit and Kukathas on Rawls)
• They question whether “the principles of justice that
govern the basic structure of society can be neutral with
respect to the competing moral and religious convictions
its citizens espouse.” (Sandel)
• Rawls is accused of “producing a deracinated sense of
self,” or an “implausible” self “barren of constituent traits”
(Sandel)
• He constructs persons as “somehow existing above and
acting independently of their social and historical
contexts and bodily matrices” (Markell)
• Communitarianism “values particular ways of life and
subcommunities,” as well as “communities which shape
self-identity and endow it with values and attachments”
(Stolzenberg)
• It denies that “[we can] detach ourselves in order to
identify the principles by which to order our association”,
and rejects the value of “agreement by pre-social
individuals”, as we do not have the “capacity to construct
a morality without self-knowledge.”
• It “insists on the equal, even prior, importance of
communal belonging”, and often “looks for a state that
will be grafted closely onto a community’s way of life.”
(Pettit)
• The liberal conception of justice is alleged
to portray the individual in a way that
misrepresents “real life”. Walzer says that
for Rawls, the individual is “constituted
only by his wilfulness, liberated from all
connection, without common values,
binding ties, customs or traditions.”
• Rawls’ defence of this is to say that we must
accept principles of justice that can we endorsed
by all independently of any particular worldview
and this is the reason for representing persons
independently of their identities in the original
position. The purpose of the “veil of ignorance”
is not to suggest that actual people should
regard themselves as “detached” from their ends
and identities
• The original position is merely meant as a
“device of representation”
• 3. Justice as fairness suggests a universal
conception of justice which takes no account of
the different histories and characteristics of
different societies
• This is related to the communitarian critique.
Just as individualist liberalism fails to account for
the differences between individuals and their
identities, it also fails to account for the
differences between societies.
• On this view, while the original position masquerades as
universalist, it is really “parochial in construction”,
reflecting Rawls’s preoccupation with American society
• Sen observes that Rawls “seems to accept that there are
incurable problems in getting a unanimous agreement on
one set of principles of justice in the original position,
which cannot but have devastating implications for his
theory of ‘justice as fairness’”
• Why should the social contract not take account of the
different histories and characteristics of different
peoples? Must the principles of justice be the same
everywhere?
• Communitarians suggest that “to know what
rules or laws are appropriate for us we need to
look more closely at our own community and
moral tradition to discover what our values are –
and what is necessary to protect them” [Pettit
and Kukathas]
• … “the idea of looking to uncover abstract
principles of morality by which to evaluate or redesign existing societies is an implausible one.”
• 4. Rawls’s political liberalism is not really
‘neutral’ between different worldviews or
conceptions of the good
• It is sometimes objected that it is
effectively impossible to formulate
principles of justice without entering into
“comprehensive” questions of what is the
purpose or end of human life – questions
Rawls claims to avoid entirely
• “A liberal must take his stand on the proposition
that some ways of life, some types of character,
are more admirable than others … Liberalism
rests on a vision of life: a Faustian vision. It
exalts self-expression, self-mastery and control
over the environment, natural and social; the
active pursuit of knowledge and the clash of
ideas.”
- Brian Barry
- The point here is that liberalism is not merely
committed to neutrality between worldviews but
is itself committed to a particular worldview
• Nagel states: “the original position seems to presuppose
not just a neutral theory of the good, but a liberal,
individualistic conception according to which the best
that can be wished for someone is the unimpeded
pursuit of his own path, provided it does not interfere
with the rights of others.”
• Similarly, Taylor attributes the “political” basis of Rawls’s
theory to an “ethics of inarticulacy”, suggesting that the
principles of justice rest upon an unstated moral basis:
“we recognise that these are acceptable principles of
justice because they fit with out intuitions. If we were to
articulate what underlies those intuitions we would start
spelling out a very ‘thick’ theory of the good.” C. Taylor,
Sources of the Self: The Making of the Modern Identity
(Cambridge: Cambridge University Press, 1989), p. 89
• But Rawls never claims that his theory is
intended to be “neutral” between
“comprehensive doctrines” in the sense of
neither favouring nor disfavouring any of them.
Rather, it must be justifiable from a standpoint
that does not pre-suppose acceptance of any of
these
• “No society can include within itself all ways
of life. We may indeed lament the limited
space … of social worlds” – the limits of
liberal toleration?
5. By focusing on the principles of justice that
apply to the State and the public sphere alone,
Rawls’s theory overlooks the injustice and
inequality that occurs within the private sphere
and the family in particular
This is often the criticism of feminists in particular
(eg Susan Okin) who believe that Rawls, in
limiting the “principles of justice” to the “basic
structure” of public institutions, overlooks the
injustice perpetuated within the family
• Recall – why did Rawls limit the principles of
justice to the “political association” of the state
as opposed to associations and communities?
• Okin argues that Rawls ends up ignoring the
ways the internal dynamics of the family place
subordinate women - which in turn leads him to
overlook how this restricts the ability of women
to be free and equal citizens within the political
sphere
• Rawls assumes “the family, in some form, is
just”. In his later work he brings the family within
the remit of the “basic structure”. Why?
… ‘at some point society has to trust to
the natural affection and goodwill of
parents’
…However, ‘the principles of justice also
impose constraints on the family on
behalf of children who are society’s
future citizens and have claims as
such.’
• … ‘political liberalism distinguishes
between political justice that applies to the
basic structure and other conceptions of
justice that apply to the various
associations within that structure’ but ‘it
does not regard the political and the nonpolitical domains as two separate,
disconnected spaces, as it were, each
governed solely by its own distinct
principles’
• … ‘the principles defining the equal
basic liberties … always hold in and
through all so-called domains.’
• ‘if the so-called private sphere is a
space alleged to be exempt from
justice, there is no such thing’
• Sample questions on John Rawls:
1. What does it mean to say that Rawls’s theory of
justice is a social contract theory? How does this
make it different from natural law and
utilitarianism in particular?
2. In what sense is Rawls’s theory of justice
“political not metaphysical”?
3. What are the main criticisms of Rawls’s theory
of justice?