"Faith, Social Hope and Clarity"
John Rawls’ A Theory of Justice (TJ) appeared three decades ago, in the heyday of analytic moral philosophy. (Analytic moral philosophers, to generalize incautiously, disparage systematic, constructive ethical theorizing in favor of inquiry into the meaning and cognitive status of moral judgments.) TJ immediately won widespread acclaim because it was as technically sophisticated as most work then being in done in the analytic tradition, yet highly constructive and fully substantive in its concerns. The book showed that philosophical ethics could legitimately aspire to be much more than the logical "clarification" of moral concepts recommended by philosophers like R.M. Hare. Perhaps what impressed Rawls’ early readers most was that he seemed to present a workable alternative to utilitarianism, widely accepted when TJ made its debut. "Each person," he asserted on the book’s first page, "possesses an inviolability founded on justice that even the welfare of society as a whole cannot override." No utilitarian could accept that proposition, but it lay at the heart of the theory Rawls called "justice as fairness."
Justice as Fairness: A Restatement (JAF) is a concise, self-contained, and up to date presentation of Rawls’ views. The book originated as a set of lectures for a political philosophy course that Rawls taught for many years at Harvard. In their most revised form, the lectures fully incorporated the reformulation of the theory of justice as fairness put forward in Political Liberalism (PL) of 1993. While JAF does not present any theoretical departures from PL, it deals with important topics Rawls never fully addressed before such as Marx’s critique of liberalism and the moral short-comings of welfare state capitalism. (A welfare state, unlike a property-owning democracy or a liberal democratic socialist regime, he says, is incapable of realizing the main values of justice as fairness.) Rawls’ long-time readers will also be pleased to find that JAF includes careful replies to Sandel, Sen, Okin and other critics on issues ranging from health care to the legal status of gender differences. Much less dense than TJ, and far more perspicuous than the PL, JAF will surely be the text henceforth used to teach Rawls in political philosophy courses.
Justice as fairness has strong ties to the social contract tradition: principles of justice conceived of as basic terms of social cooperation are to be selected in a fair choice situation (the "original position"). The justification of the principles proceeds in two stages. In the first, the principles are provisionally selected as specifying basic terms of social cooperation. In the second, it is demonstrated that the conception of justice codified by those principles has the required property of being stable. Rawls characterizes a conception of justice as stable when those brought up in a society effectively regulated or "well-ordered" by its principles would (by known laws of moral psychology) acquire a strong allegiance to basic social institutions. The need to meet this requirement has motivated Rawls in his recent thinking to pursue what he describes as a "political" conception of justice.
According to Rawls, a pluralism of incompatible, yet reasonable comprehensive doctrines is characteristic of a society with liberal democratic institutions. (A philosophical, religious, or moral doctrine is described as "comprehensive" when it includes "conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relationships, and much else that is to inform our conduct, and in the limit to our life as a whole." Since no one comprehensive doctrine is endorsed by all citizens in a pluralistic society, no such doctrine can be used to justify terms of social cooperation that will be acceptable to all. Instead, a conception of justice must be purely political or "freestanding," drawing only upon certain fundamental ideas of personhood, society, and reason implicit in the public, political culture of a democratic society. These ideas are used to structure the original position. They are the shared point of departure for deliberation on principles; it is presupposed that all those who enter into the original position accept them. Only a political conception of justice, Rawls thinks, will be able to win the support of what he calls an "overlapping consensus" of reasonable comprehensive doctrines. The support of an overlapping consensus is necessary condition of a conception’s stability in a pluralistic context.
In what follows below I shall very briefly argue, first, that the notion of an overlapping consensus does not seem actually to contribute to the justification of a political conception already accepted in the first stage of justification; and second, that, contrary to Rawls’ suggestion, what mandates a political approach to the problem of specifying principles of justice cannot in fact be the issue of stability.
To reiterate, one of the main features of a political conception of justice is that its content is derived from certain fundamental ideas implicit in the public political culture of a democratic regime. They are sufficiently complex and so widely accepted that Rawls thinks it possible to work up an acceptable political conception of justice for a constitutional regime on their basis. Among these fundamental ideas, that of society as a fair scheme of cooperation for mutual advantage, and that of citizens as free and equal persons are central to the construction.
Implicit in both of these ideas, Rawls says, is the notion that a citizen is politically reasonable when she is willing to propose and abide by terms of social cooperation so long as they are acceptable to all other reasonable citizens. Principles of justice and the exercise of power they authorize are legitimate only when they can be freely endorsed by all reasonable citizens. Reasonableness, in this sense, is the expression of the criterion of reciprocity, identified by Rawls in PL as the "intrinsic normative and moral ideal" of his political conception justice.
Now, as mentioned above, Rawls thinks it is an important requirement in any conception of justice that it should be able to win the support of an overlapping consensus of reasonable comprehensive doctrines. This is necessary if a conception accepted in the first stage of justification is also to be accepted in the second. Jürgen Habermas, however, has argued that Rawls’ notion of an overlapping consensus does not seem to contribute to the justification of a conception of justice already accepted in the first stage of justification. I think Habermas is right. For it is hard to see how a conception might win the support of citizens in the first stage, yet nonetheless turn out to be incompatible with their philosophical, religious, or moral views in the second. Since it is assumed that citizens who enter into the original position (and thus conceive it as a fair choice situation) accept the fundamental, democratic ideas, principles of justice derived from those ideas ought to be compatible with any reasonable comprehensive doctrine they might also espouse. In fact, Rawls generally characterizes a comprehensive doctrine as reasonable if it is compatible with or incorporates the fundamental ideas in question. A comprehensive doctrine that, for instance, rejected the idea of citizens as free and equal, would not be reasonable, and a citizen espousing such a doctrine could not be expected to accept the set-up of Rawls’ choice situation as fair. Further, in PL (p. 149), Rawls says that the "depth" of an overlapping consensus does not go beyond common acceptance of the fundamental ideas in question. So, if a (rational) citizen holds a comprehensive doctrine that is genuinely reasonable, there ought to be no grounds emerging from that doctrine for rejecting principles of justice that are worked up from the fundamental ideas.
Rawls says that "the problem of stability in a democratic society leads us to specify a political conception of justice and the domain of the political so as to make it possible for a political conception to be the focus of an overlapping consensus… Otherwise, the institutions of a constitutional regime will not be secure." However, the question of whether a conception of justice is stable (posed in the second stage of justification) arises only after a society effectively regulated or "well-ordered" by its principles is assumed to have come into being. Since it belongs to the notion of a well-ordered society that all its citizens publicly accept the institutionalized principles of justice, and since no non-political conception of justice could be accepted by reasonable citizens, the question of stability can arise only for a political conception of justice. Thus, from an intra-theoretic standpoint, it cannot be the problem of stability that motivates the specification of a political conception of justice. Rather mere reasonableness requires of citizens (in the first stage of justification) that they select freestanding or comprehensive-doctrine-independent principles of justice. The anteriority of the issue of reasonable acceptability to that of stability precludes construing the latter as what mandates a political approach to formulating principles of justice.
I am grateful to Juliet Floyd, Bernard Prusak, and T.M. Scanlon for their helpful criticisms of an earlier version of this review.
Review by Robert Brisco
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