This Month's Colloqium

Colloquia Archive

November of this past year witnessed the passing of the arguably the greatest and most influential writer and scholar in the 20^th century on issues surrounding the topic of political justice. For over thirty years this Harvard professor of philosophy's Theory of Justiceⁱ has formed the focal point of debate on the principles that must under gird the possibility of democratic liberal societies. Rawls has had his critics- many of them-but any informed commentator on the nature of political justice is forced to take sides on Rawls' theory. It is no exaggeration to say that the discussion of this topic in the last 35 years has been a commentary on Rawls. Rawls' life-long and single-minded passion has been to articulate the necessary moral presuppositions for justice in a society and in a world characterized by pluralism with respect to ultimate ends. How can there be harmony and justice in a world where there is profound and seemingly uneradicable disagreement with respect to the ultimate good? Whatever we may think of fundamental assumptions and details of Rawls' work all thoughtful citizens of the USA and the world have a stake in and ought to be committed to the Rawlsian project.

The Inadequacy of"Modus Vivendi"

'Modus vivendi' means literally 'mode of living.' The meaning in this context refers to a feasible arrangement that provides a pragmatic compromise that bypasses difficulties that would without compromise make cooperation impossible. Rawls rejects this as a viable solution with respect to ultimate values. This includes ultimate religious values but also ultimate values embodied in secular philosophical perspectives. Rawls' reasons here seem fairly clear. Pragmatic compromise is possible, necessary and frequently relatively easy in social relationships. Pragmatic compromise with respect to ultimate values, however, is inherently coercive and unstable. It is unstable, because important values are being compromised because the balance of power makes this necessary. Should the balance of power change (as it probably will over time) then we can expect renewed conflict to break out. It is also coercive in a deep religious sense. A compromise over whether to go out for pizza, grits or sushi is not a religious compromise (for most of us anyway). A compromise with regard to upon which view of the ultimate good to found society's basic theory of justice is a compromise with respect to my most basic 'sense of self'. This violates one of the most basic tenets of political liberalism and democratic society namely 'freedom of religion.' This then is our dilemma. Religious liberty (including freedom from religion) is part of the very structure of liberal democratic society. Religious liberty almost guarantees a social order increasingly characterized by pluralism with respect to views of the ultimate good. To found a theory of basic justice on any one of these views of ultimate good (or some kind of modus vivendi among several of these theories) entails coercion of adherents of the members of society. It is both unjust from the point of view of political liberalism and inherently unstable. It is neither morally or in the long run empirically viable. What is the way out of this impasse?

Rawls and Utilitarianism and The 'Right' the 'Good'

Rawls' solution to this dilemma can perhaps best be seen by understanding his critique of utilitarianism. Utilitarianism is, of course, a rival expression of the political liberal tradition with which Rawls finds several major faults. In the first place, in defining justice as laws that contribute to "the greatest good of the greatest number" utilitarianism in principle makes possible the exploitation of the few by the many. For example, if the benefit of slavery to the majority was sufficiently great so as to outweigh the disadvantage to the minority then the average utility of society might increase by its institutionalization. Less dramatically, a given economic arrangement might benefit a large majority at the expense of a minority. Thus, "justice" would allow for exploitation. Of course, utilitarians argue that slavery does not maximize utility. On the contrary freedom increase utility and therefore freedom contributes to the greatest good for the greatest number. The same thing may be said of economic equality. This justification, however, grounds the 'rights' of liberty and equality on the maximization of good. The 'right' is based on the 'good.' The fact that liberty and equality contribute to the maximization of good in society is a contingent or empirical fact of social order. Rawls, following Kant, believes that liberty and equality are basic 'rights' fundamental to the dignity of human personhood. A theory of justice that treats them as secondary or derived is 'in principle' defective. In fact, there may be empirical situations that could allow them to be overridden for the sake of maximizing the good of society. Secondly, utilitarianism in grounding justice on "greatest good of the greatest number" puts forth a theory of ultimate good which is likely to conflict with rival theories of the good with which many citizens will disagree. The greatest good of the greatest number (whether the 'good' is defined in terms of 'pleasure' or preferences-Singer-ⁱⁱor some other definition of the good) is no different than defining the ultimate good in terms of one or more religious perspectives.

Justice, the Priority of Liberty and Equality, and the Original Position

What is Rawls' solution? To determine the basic structure of justice Rawls asks that we assume (in our imaginations of course) the stance of the 'original position.' In the original position one knows a great deal about how the world works but nothing about one's personal identity. I know that I will enter the actual world and assume a rich and full identity. In the original position, however, I do not know whether I am rich or poor, young or old, a genius or mentally retarded an artist or an engineer. I also do not know if I am a Christian, a Jew, a Muslim or an Atheist, a hedonist or an ascetic. I know that when I take my place in the real world I will have ultimate commitments or will, at least, value some things more than others. I do not know what those ultimate commitments will be. What principles of justice will one choose in this 'veil of ignorance' concerning one's actual identity? Rawls gives us two principles. First (and this principle is given priority) I will choose the maximum amount of liberty consistent with equal liberty for all. Second, I will choose a social order characterized by equality of opportunity and equal distribution of wealth-except where unequal distribution of wealth benefits the least advantaged. These two principles are thus really three different senses of equality (1) equal liberty, (2) equality of opportunity and (3) equal distribution of wealth-except where unequal distribution of wealth benefits the least advantaged.ⁱⁱⁱ

We can better understand Rawls justification of these principles if we clarify what problems their adoption solves. In the first place, they are prudent principles. When I leave the original position and enter the 'real world' and adopt a real social situation and real ends associated with my full self-hood I may be less well off than others in society but I will not be exploited by them. Others may be more wealthy than I will be but rather than being disadvantaged by their increased wealth I will be advantaged by it. Secondly, Rawls formulation deals with the standard objections to utilitarianism. Even if slavery could be shown in some actual or hypothetical context to raise the average utility in society and thus be for the greatest average good for the greatest number it would be excluded by all three of Rawls' principles taken separately and together. Slavery obviously denies equal liberty, equality of opportunity and unequal distribution of wealth that does not benefit the least well off (in this example the slave). But Rawls 'difference principle' (the term he uses to refer to the third principle of equality) prevents economic and political exploitation of any kind. Thus, even if I am not risk-aversive, or imagine that I will not be when I leave the original position, Rawls' theory appeals to my fundamental sense of fairness as compared to utilitarianism.

Of course, not all political liberals agree with Rawls on this point. Libertarians as represented by Robert Nozick (Anarchy, State and Utopia, see esp. pp. 183-231) espouse the three principles of acquisition, transfer and rectification. I have a right to any property that I have legitimately acquired. I have a right to any property that has been freely transferred to me by someone who has legitimately acquired that property. I have a right to rectification of property that has been taken from me by some one who has not legitimately acquired that property or has received transfer of that property by someone who has not legitimately acquired that property. Libertarians regard the difference principle as unfair because it takes property from those who have legitimately acquired it and on the basis of an unjustified principle of equality transfers it to others who have no legitimate claim to it. I will not further pursue a discussion of libertarianism here. I introduce it to indicate that not all political liberals have the same moral intuitions as Rawls. Neither do they all after engaging in reflective equilibrium reach the same rational conclusions that he upholds.^iv

Rawls has also argued that his three principles of justice give the dearest and most accurate articulation of the values of the Western Liberal Enlightenment (liberty, equality and fraternity). This may be stated as the argument from Western values. Thus, in the first principle of equal liberty we have 'liberty.' Equality of opportunity affirms the value of equality. The difference principle embodies the value of 'fraternity.' True brotherhood (and sisterhood of course) would not want to be advantaged at the expense of a brother or sister. (Rawls TJ, 105ff.). This argument taken by itself, of course, is only convincing if one has already embraced the principles of the Western Liberal Enlightenment tradition.

The Original Position and the Avoidance of Modus Vivendi

Rawls rests the defense of his position, however, not mainly on an argument from prudence or compatibility with Western values but primarily on the view that his theory ofjustice best embodies the principle of fairness and secondly avoids a mere modus vivendi. The avoidance of modus vivendi is essential to the principle of fairness. If I impose my view ofjustice on another by virtue of my power to do so (however benevolent my motives and consequences of my imposition of power) then I violate their political freedom and quite likely their religious liberty as well. The same result occurs in reverse if others impose their view on me.

In order to avoid a modus vivendi Rawls must achieve two things. He must have a principle that avoids metaphysical claims about ultimate moral values. Otherwise the claims of Rawls' justice will come in conflict with alternative claims of ultimate values by both secular and religious positions. He must, in other words, exclude any notion of ultimate good as the foundation of a just political order. We must have a theory of the 'right' that takes priority over and is not founded on a theory of the 'good'. Rawlsian justice is founded on the 'right' and not on the 'good.' This view excludes Plato, Aristotle, the Stoics, Augustine, Aquinas, the Protestant Reformers, Islam, Hume, Bentham, Mill and Kant as well as contemporary political philosophers like Alasdair MacIntyre and Michael Sandel. Secondly, his theory must not be a comprehensive theory. It must confine itself to issues of political justice and not extend itself to all areas of life. Rawls in later writings admits that he did not avoid this mistake in Theory of Justice or at least did not make himself sufficiently clear on this matter. The philosophical positions cited above are both metaphysical and comprehensive.^v In later discussions Rawls drops the term metaphysical and refers to comprehensive doctrines. He contrasts his own position with comprehensive doctrines by which he means that it is neither metaphysical (founded on a theory of the ultimate good) nor designed to make other than claims about political morality.

The original position enables Rawls to develop a non-comprehensive perspective by assuming that individuals within this position do not know what their ultimate values will be nor do they know what other non-political associations or goals they will have. Thus, any rational insights they derive in this position will avoid claims about ultimate or comprehensive values.

Religion and Politics

The original position thus, allows us to talk about political justice without talking about politics. Thus, if we cannot avoid talking about religion and we cannot avoid talking about politics, we can at least avoid talking about 'religion and politics.' Does this mean that we cannot talk about political justice from the point of view of our religious or other comprehensive doctrines? No but there are restrictions. What are these restrictions?

'Public' reason holds "for citizens when they engage in political advocacy in the public forum, and thus for members of political parties and for candidates in their campaigns and for other groups who support them....... Thus, the idea of public reason not only governs the public discourse of elections insofar as the issues involve those fundamental questions, but also how citizens are to cast their vote on these questions."^vi

Public reasons apply to basic political issues in the public forum. Non-public reasons and presumably non-public forums include such associations as churches and universities, scientific societies and professional groups.^vii

"This means that in discussing constitutional essentials and matters of basic justice we are not to appeal to comprehensive religious and philosophical doctrines-to what we as individuals or member of associations see as the whole truth-nor to elaborate economic theories of general equilibrium, say, if these are in dispute. As far as possible, the knowledge and ways of reasoning that ground our affirming principles of justice and their application to constitutional essentials and basic justice are to rest on the plain truths now widely accepted, or available, to citizens generally. Otherwise, the political conception would not provide a public basis of justification."^viii

It is clear from the above that there is a realm to be appropriately designated as having to do with 'constitutional essentials and basic justice' here public reason alone is morally permissible. Rawls also claims that citizens and legislators may vote on the basis of their comprehensive doctrines where basic justice is not at stake.^ix This all rests on the ability to distinguish public reason from non-public reason and matters having to do with basic justice from those that do not. This is a matter to which I will return later.

Fortunately for democracy there is a great deal of overlapping consensus between public reason and a variety of comprehensive doctrines. Thus, there are a number of 'reasonable' or partially reasonable comprehensive doctrines. Rawls meaning here is relatively clear. Secular humanism, Christianity, Islam, Judaism, utilitarianism, etc., frequently overlap in their views of justice not only with each other but also with Rawls' view of political liberalism. Where there is disagreement between public reason and a comprehensive doctrine public reason over rides. Referring obviously to the Roman Catholic Church as well as other religious believers who oppose abortion Rawls gives us an example of public reason trumping a comprehensive doctrine.

"...I simply want to illustrate the point of the text by saying that any comprehensive doctrine that leads to a balance of political values excluding that duly qualified right in the first trimester is to that extent unreasonable; depending on the details of its formulation, it may also be cruel and oppressive..."^x

Rawls goes on to say that because a comprehensive doctrine is unreasonable in one or more issues it does not follow that it is unreasonable in all issues.

Another example of both an overlapping consensus and a partial overlapping consensus is 'just war theory'. The Christian view of just war theory agrees with Rawls political liberalism. They do not, of course, agree on the foundation of the just war theory. Christians view this theory as founded in a natural law established by God. Rawls' political liberalism by definition cannot appeal to any metaphysical or religious ground (nor does it deny such a ground). Rather, just war theory for Rawlsians is derived from the deliberation of rational individuals in the original position. What about Quakers and other pacifists? They are in a similar position to the Catholics on abortion. They espouse a view of Christianity that is unreasonable-not because their view of Christianity is mistaken. Rawls could not enter into this debate among Christians. They are unreasonable because their position is in disagreement with the deliberations of rational persons in the original position.

The Proviso

Religious believers, Secular Humanists and proponents of other comprehensive doctrines may and do develop theories of justice that derive from their respective comprehensive doctrines. These theories of justice overlap with each other and with Rawls' version of political liberalism. As such they are designated by Rawls as 'reasonable' comprehensive doctrines. When engaging in 'public' discourse, however, proponents of these various positions have a moral obligation to argue using public reason available to all rational persons (including those who may disagree with their particular perspectives. They may, however, introduce reasons derived from comprehensive doctrines into public debate "provided" that in due time they also introduce arguments derived from public reason in defense of their positions. Thus, the religious arguments introduced by the Abolitionists in the debate over slavery and Martin Luther King Jr. and others in the Civil Right Debate were legitimate and useful. This was because these arguments based on comprehensive doctrines could be and eventually were supported by public reason and they furthered the cause of justice.^xi

The Tertullian Turn: A Critique of Rawls' Political Liberalism

"What hath Athens to do with Jerusalem, or the Stoa with the porch of Solomon"?^xii

The early Christian apologist Tertullian was arguing that Creek and Roman philosophy and culture had nothing to contribute to Christian life, thought and understanding. It was simply a threat to the Christian faith, which was sufficient unto itself. Historically, however, the general answer to Tertullian's question by the Christian church has been that Athens has quite a lot to do with Jerusalem and the Stoa a great deal to do with the porch of Solomon. During the late Roman Empire and the Middle Ages Augustine and Aquinas stand as towering figures in this regard but they are part of a rich tradition who rejected Tertullian's perspective. Aquinas was, of course, especially influenced by Aristotle. The Aristotelian corpus had been largely preserved by an incredibly advanced Islamic culture as well as a rich Jewish intellectual tradition. This is not the place to give an extended discourse on the answer of Christianity, Judaism and Islam's answer to Tertullian's question. I raise it to ask another question. What from the viewpoint of the of the Rawlsian perspective does political liberalism have to do with Jerusalem or any other comprehensive doctrines? For that matter, since Athens represents a variety of comprehensive doctrines, what does political liberalism have to do with Athens?

To clarify the answer to this question it will be helpful to make some distinction regarding why people consider alternative comprehensive doctrines. The reasons for considering alternative doctrines are not for the most part mutually exclusive and we may begin consideration for one reason and later adopt another. (1) Coercion: The first reason I will term the motive of coercion. "My parents forced me to go to church. My philosophy professor made me read Nietzsche". (2) Control: Secondly, one may study an alternative perspective to manipulate, destroy or control. CIA or FBI agents may study radical Islamic groups for this reason. (3) Apologetics: Thirdly, we may have apologetic reasons for such study. We may study alternatives to either convert or defend the faithful against conversion to alternative perspectives. (4) Curiosity: We may study alternative perspectives for the same reason we take up chess. We find this an interesting pastime. (5) Preservation of cultural pluralism: We may study alternative perspectives because we believe that people holding these perspectives have rights and we wish to create institutional structures that allow them to preserve their cultural identity. (6) Therapy: We may have a therapeutic motive. We may believe that someone has a world-view that is associated with their mental illness (or less seriously their emotional problems) and we want to study their world-view in order to treat them more effectively. (7) Allies in a common cause: We may believe that others have a perspective that we reject but nonetheless realize that their perspective leads them to adopt moral viewpoints and behavior of which we approve. We may study their perspective in order to become more effective allies in a common moral endeavor. In this case, let us assume that we believe the other perspective has nothing to offer us personally in either a moral or epistemological sense. We merely recognize adherents of the alternative perspective as allies in a common moral endeavor. (8) Moral, Intellectual and Cultural Enrichment: We may study the other perspective not because we think that we might be converted to the alternative perspective. Nevertheless, we may believe that although our perspective or historical cultural tradition is superior to the alternative position that it is not complete. We entertain at least the possibility that our perspective may be made more complete (morally and intellectually) by encounter with the alternative tradition. In short we need the insight of the alternative perspective. (9) Possible conversion: Finally the alternative tradition for us may be what William James called "a live option."^xiii We may be considering conversion to the alternative perspective.

Although the other reasons are of interest and relevance, I want to focus here on reasons #7 and #8. Where does Rawls version of political liberalism fit? With respect to reason #7 he very clearly recognizes that some comprehensive doctrines may be allies in furthering the moral order that justice as fairness supports. Slavery in this country might not have ended nearly so quickly in this country without the Abolitionists. It is difficult if not impossible to imagine where civil rights would be in this country without the work of Dr. Martin Luther King and the appeal he made to Christian social ethics. Rawls recognizes this and has made a place for it in his theory. Secondly, with respect to #8 Rawls makes room for moral, intellectual and cultural enrichment in a restricted sense. Individuals and institutions can profit enormously from encounter with alternative comprehensive doctrines. Rawls would not be opposed to liberal arts education. Furthermore, background institutions like churches, mosques and synagogues, professional societies, etc.; with their discussion of alternative comprehensive doctrines are necessary for the flourishing of a democratic liberal social order. Justice as fairness, however, as derived from the reflective equilibrium or rational persons in the original position does not need the insights of alternative comprehensive doctrines. It embodies the necessary and sufficient epistemological principles to ground a just social order. Here it clearly looks like Rawls and his supporters have taken the Tertullian turn. Rawlsians qua Rawlsians with respect to political liberalism may study alternative doctrines for apologetic reasons or to seek allies but not to have their own position enhanced or enriched. Of course, this does not settle the debate. If Christian Fundamentalists in fact have the necessary and sufficient insight to grasp the nature of God and the moral order than their only possible proper response is to benevolently bestow it on the rest of us. So it is with Political Liberalism. Nevertheless to claim to have the truth, the whole truth and nothing but the truth even within a limited scope is to assume an enormous epistemological burden.

How Shall We Become Epistemologically and Morally Pure?

How shall we become epistemologically and morally pure? Rawls answer to this question is clear. We must enter the original position and abstract from all things that make us the particular person that we are including our ultimate commitments. To the extent that we seek this goal for our society, we should engage in public discourse about justice using public reason, which is the reason derived from the original position. Is this possible:' If it is possible how would we know when it was achieved? If I can know when I have achieved this goal, how can I know when others have achieved it? How can others know when I have achieved it?

There are enormous difficulties both epistemological and psychological in achieving the original position. We all start with a variety of moral intuitions. Inevitably as we live our lives some of these moral intuitions come in conflict with one another. We frequently try to adjudicate this conflict by appealing to some comprehensive doctrine. Again all too frequently, we discover that we have been harboring in our minds bits and pieces to a greater or lesser extent of several comprehensive doctrines. Furthermore, on important matters there are frequently different interpretation regarding the proper application of the same comprehensive doctrine. The origin of these various intuitions and interpretations is sometime opaque. They come from our culture, our parents, our peers, books we have read, movies we have seen and our particular personalities. Some of us are aggressive. Others passive or risk aversive. We get relatively settled about basic principles. our moral intuitions and correct application and external conditions change radically, raising more problems. I have yet to mention analysis of our motives. In matters of fairness we typically attempt to put ourselves in the place the other ("Do unto others as you would have them do unto you"). We resort to objective distancing of the self perhaps through something like the categorical imperative ("Would I be willing for everyone to act on this principle"?) The reader will judge for himself or herself whether I describe the actual human condition. My point is not that the exercise in moral judgment is a despairing project. I do affirm that on some issues it is a difficult one that requires critical "self" reflection. The Rawlsian original position invites us to achieve self-understanding by abstracting from all that makes us a particular self. But how can we know that we have achieved this abstraction. Would Rawls think it unreasonable to deny a woman an abortion before the third trimester if he had been born a Catholic? Rawls thinks that the insights of the original position can be extended to generations yet unborn.^xiv Does this include conceived and yet unborn? In what month? Would he think pacifism unreasonable if he had been born a Ouaker? Rawls does not include animals in the original position. Animal rights activists have criticized him on this ground and argued for an extension.^xv This seems unreasonable to me and perhaps to my readers but would it seem more reasonable if we had been born Hindu? My point is not that such questions are easy when we place our comprehensive doctrines on the table. But at least they can be dealt with more adequately. The original position it seems to me can encourage duplicitous suppression. Just because I don't voice my comprehensive doctrines in the public square doesn't mean that I am not motivated by these considerations. It can even encourage repression or denial of my true motivation and reasons because they have been declared out of bounds. The unexamined public reason may be worth articulating but the chances for honesty, genuine self-reflection and dialogue less likely.

ⁱ John Rawls, Theory of Justice, (Cambridge, Massachusetts: Harvard University Press, 1971).

ⁱⁱ See Peter Singer, Practical Ethics 2^nd ed. (Cambridge, England: Cambridge University Press, 1993).

ⁱⁱⁱ See Rawls, Theory of Justice, pp. 60ff.

^iv Robert Nozick, Anarchy, State and Utopia (USA: Basic Books, Inc., 1974) pp. 183-231.

^v Rawls, "Justice as Fairness: Political and not Metaphysical" (1985) in John Rawls: Collected Papers, ed. by Samuel Freeman (Cambridge, Mass.: Harvard University Press, 1999) pp. 389 and 441ff.

^vi John Rawls. Political Liberalism (New York: Columbia University Press, 1993) p. 215.

^vii Ibid. 220.

^viii Ibid. 224-225.

^ix Ibid. 235.

^x Ibid. 243-244.

^xi John Rawls. "The idea of Public Reason Revisited" in Collected Papers pp. 591-594.

^xii Tertullian, Roman Jurist turned Christian ca 160-230 AD. Quoted In Harold O.J. Brown, Heresies (NewYork: Doubleday and Company, Inc. 1984) p. 43.

^xiii See William James, "The Will to Believe"

^xiv John Rawls, Political Liberalism

^xv See Daniel A Dombrowski, Rawls and Religion: The Case for Political Liberalism (Albany, NY: State University of New York Press, 2001) chapter 11 Animals and Marginal Cases pp. 143-157.