et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis


Thursday, May 16, 2002

The Mises Review
By David Gordon
Winter 2001; Volume 7, Number 4

Rawlss Ballet

Justice As Fairness: A Restatement by John Rawls (Harvard University Press, 2001, xviii + 214 pgs)

Time has not been altogether kind to John Rawls. True enough, his A Theory of Justice has been the most widely acclaimed book in political philosophy since its publication thirty years ago. But Antony Flew, Robert Nozick, and other critics have devastated Rawlss Das Kapital of the welfare state, in particular his famous difference principle. Rawls has met these objections, for the most part, by constant reiteration of his original contentions.

In one respect, though, he has changed course. Beginning with Political Liberalism (1993), Rawls began to claim that his theory was devised to fit a special set of circumstances, and he continues this emphasis in the book we have now to consider. By limiting his theorys application, Rawls hopes to strengthen support for it; and his new starting point, one must admit, is plausible.

Is it not the case that, in a constitutional democracy like the United States, large numbers of people find themselves at odds on key issues? Some people, for example, support laissez-faire capitalism; others foolishly support socialist nostrums. (Of course, Rawls would not put it quite like that.) Should society allow abortion? What role, if any, should government play in education?

These political disputes, and others like them, do not arise from nothing. As Rawls rightly notes, people hold various "comprehensive moral doctrines" from which their opinion on particular issues follow: "The elements of such a conception [of the good] 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" (p. 19).

Rawlss starting point cannot be gainsaid; people in societies like the United States do indeed differ fundamentally on basic issues. Unless everyone by some miracle converts to the same doctrineof course the true doctrine that we now holdmust we not learn to live with inevitable conflict? Rawls does not think so.

Instead, everyone must, for the purposes of public discussion, abandon his own comprehensive doctrine. In its place, "public reason" becomes the order of the day. Since you know that others do not share your most fundamental beliefs, is it not obvious that you cannot rely essentially on them in debates on the basic structure of society? Others must accept a parallel restriction on using their own comprehensive doctrines. By doing so, those with irreconcilable doctrines can live together peacefully.

But what is left? If none of us can appeal to our own convictions, is not discourse emptied of all content? Must not public discussion under Rawlss restriction be reduced to what F.H. Bradley called "an unearthly ballet of bloodless categories"? Rawls finds a way out.

A substitute set of reasons enables us all to proceed. Each person adopts for public discussion reasons that depend on no comprehensive doctrine. Instead, these reasons assume only that each person is a free and equal member of society. Contrary to what one might at first think, to put aside ones most deeply held views does not condemn discussion to sterility.

A new difficulty seems immediately to arise. Will not a problem analogous to the one Rawls has endeavored to solve now confront us? Will not people who restrict themselves only to public reason find themselves mired in new disagreements? Why will those who recognize each other as free and equal find their debates free of discord?

Our author responds with a simple solution. Everyone adopts the same set of reasons. Well, you may say, Rawls has secured the unity he so much wants: but has he not paid too high a price? Why will people give up their comprehensive doctrinesthe positions that are to them most basicjust to secure agreement with others?

Here exactly our author is at his most ingenious. Rawls, it develops, is not so unrealistic as to expect people to abandon their most basic beliefs. Quite the contrary, everyone in the Rawlsian world retains his beliefs, even though these cannot be used in public discussion on societys basic structure. But if the beliefs cannot be used in so essential a context, in what sense do they remain?

Rawlss answer takes us to the heart of his new approach. Each person will ask, from within his own comprehensive doctrine, what he is to do when others in society radically disagree. Those who do so will find resources in their own fundamental beliefs to support public reason. Each system, that is to say, will perform an act of self-abnegation: it will deduce from its own tenets that its distinctive doctrines must be placed to one side, when diverse positions show themselves present. In brief, an "overlapping consensus" of various comprehensive doctrines supports public reason.

One point more, and we will grasp the essence of what Rawls has in mind. Public reason, as he conceives it, does not consist of innocuous generalities, so bland that all comprehensive views can accept them. In his opinion, resort to public reason generates universal agreement on the proper basic structure of society. By an odd coincidence, this structure is identical with the scheme that Rawls propounds in A Theory of Justice. In particular, public reason endorses the radically egalitarian "difference principle."

Rawlss new construction strikes me as wrong in all its major contentions, except for his starting point. Certainly he is right that people in modern societies do not unite in accepting a comprehensive doctrine. But he at once takes a false step. He assumes that, unless its situation is somewhat palliated, a society whose members have clashing beliefs faces disaster. But why assume this? Why cannot people with differing beliefs live together, even if each person refuses in public debate to dilute his own beliefs? Why, for example, should a natural-rights libertarian put aside his views just because he knows that egalitarians in his society do not share his beliefs? Why should he not attempt to defend his beliefs as best he can?

Our author responds that to do so is to render society unstable. Stability demands more than a mere modus vivendi; unless people adopt public reason, society stands at risk of dissolution. People who operate exclusively within their comprehensive doctrine will be tempted to impose their views on others, should the occasion arise. Only when people through the use of public reason become attached to the proper basic structure can a society resist disintegration.

How does Rawls know all this? He has engaged, without evidence, in sociological conjecture. Why cannot a society exist for a long period without the sort of stability that Rawls wants? He does not tell us. Perhaps, though, I have misread him, and his enterprise is one of definition. He is not prepared to call a society "stable" unless it acknowledges public reason. If he has this in mind, why should anyone else be concerned with stability in his sense?

What seems to underlie Rawlss concern about stability is this. During the wars of religion in early modern Europe, nations sought to impose a single religion on their recalcitrant subjects. The attempt to do so led to disastrous conflicts: does this not show the dangers of attempts to impose a comprehensive moral doctrine? How can so unfortunate an outcome be prevented except by universal adoption of public reason?

Rawls might thus reply to my charge that he speculates without evidence with a direct denial. His invocation of public reason rests on the lessons of history. But in fact this response depends on appeal to a biased sample. Of course an attempt to impose religion is liable to meet resistance from those who profess another faith. Not all comprehensive views, though, teach that their doctrine should be imposed by force. If a comprehensive doctrine does not call for dissenters to be suppressed, why need its use in public debate lead to irreparable social conflict? Must a society that contains people who differ on the need for a welfare state collapse unless people confine their public arguments to a set of common reasons?

Even if Rawlss argument from stability fails, he can still rescue his theory. According to his account, all comprehensive doctrinesat least those among them fit for polite societyimply that public reason governs society in case people differ in doctrine. Rawls holds then that all acceptable theories lead to his theory. He does not need the appeal to stability: the comprehensive doctrines themselves directly imply his view.

Unfortunately for him, his daring contention fails. No doubt it would be convenient for him if all the most important comprehensive views favored public reason in case of conflict. But he never shows that even one such position has this consequence. Will, for example, a utilitarian be apt to resort to Rawls should he find that others fail to share his views? Will he not rather endeavor to apply his utilitarian convictions to the circumstances? And will not a supporter of natural law attempt to apply his position? Rawlss claim is utterly arbitrary.

But let us put all this aside and grant Rawls his premise. Suppose that everyone agrees to confine public argument to the restricted premise of public reason. Will the result be, as Rawls claims, that his own theory of justice will be instituted? He secures this result only through unjust tactics. He considers at some length various principles a society might adopt to distribute the gains from social cooperation. In particular, he contends that his difference principle defeats the competing rule of maximizing average expected utility.

He secures victory for his system only by dismissing out of hand all major competing views. As natural-rights libertarians see matters, property rights render otiose Rawlss question. The gains from social cooperation do not belong to society, and there is nothing to "distribute." The rights to liberty and property that people possess independent of social decision settle all questions of ownership. Our author is of course quick to wave aside this alternative; it subordinates equality to arbitrary moral luck.

But this reply convinces only if one begins from Rawlss strongly egalitarian starting point. If one declines to do so, Rawls makes no case that public reason requires his difference principle. It would not matter much if it did, since he has concocted public reason out of nothing. Further, the difference principle still would fall before the objections of Flew and Nozick. The alleged fact that public reason supports a principle avails nothing, if that principle is unsound.