John Rawls and Justice.
It is a civil obligation to read Joy Gordon's Invisible War: The United States and the Iraq Sanctions (Cambridge: Harvard University Press, 2010).
I appreciate the anger and frustration that observers of this cruelty and criminality feel -- I mean the censorship at these blogs -- but I ask for your continued observations and publicizing of these events. I will update my system, back up files, then I will try again tomorrow to scan my computer. I cannot say how many essays have been altered or vandalized this morning. ("What is it like to be tortured?" and "How Censorship Works in America.")
I recently learned of the death of Philippa Foot. I will soon post a brief essay about this important British philosopher whose work has influenced me. Along with Mary Midgley, Iris Murdoch, Elizabeth Anscombe and Mary Warnock, Mrs. Foot was a member of a generation of English philosophers shaped by what Iris Murdoch described as "the experience of Hitler."
These women's shared experience of horror and dread is not irrelevant to their equally shared skepticism concerning scientism (expressed in their various works) together with the focus on morality found in the best writings of each of these remarkable women.
Among their American counterparts are several philosophers who happen to be women and whose views bear striking similarities on these issues concerning the limitations of science: Judith Jarvis Thompson, Marjorie Grene, from a later generation Angela Davis and Martha Nussbaum, also agree on the dangers of scientism and the importance of the struggle against injustice.
I do not believe that the similarity in the concerns and views of outstanding American and British women, who have been and remain great philosophers in our time, is unimportant.
To my knowledge, however, there is no comparative study of the works of these women nor any effort to appreciate the warning they have tried to provide to our civilization.
Several attacks on my computer, interference with my cable connection, computer crimes have accompanied my writing efforts today. I will continue to write.
John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), $25.00.
Michael Sandel, Justice (2010), (DVD of Harvard Course, broadcast on Boston's PBS station.)
My purpose in this brief essay is to summarize and comment on the work of John Rawls who is one of the foremost political philosophers of the twentieth century.
Professor Rawls provides an elaborate defense of pretty much what I believe, intuitively, concerning politics and law. Furthermore, he does so with a genius that allows me always to draw inspiration and instruction from his writings (or those that I know anyway) in defending a very American brand of "equity liberalism" or "liberalism with social justice" against rival political philosophies, including all forms of collectivism and totalitarianism.
Rawls's theory is close to Noam Chomsky's "liberal socialism" except that Rawls is more of a rights theorist than Chomsky.
Rawls is a great source to use in developing arguments against the U.S. government's violations of human rights or dignity in a number of settings. Torture and censorship are always unamerican (or un-American).
Regrettably, Rawls's work is difficult. His prose is always clear and compelling, but it is also dry and dense with few concessions to the attention-span of the reader and no visible displays of humor or wit. There are also few dazzling and dramatic examples offered by Rawls as opposed to, say, Jean-Paul Sartre, who is famous for his examples, and none of the stylistic "crispness" to be found in Robert Nozick's books, nor the amiable irony of Richard Rorty's laid back or "cool" campus pragmatism. ("Richard Rorty's Ethical Skepticism.")
Fortunately, students (like me) can acquire a pretty good grasp of Rawlsian ideas from interpreters and explicators of his work.
Also, many prominent theorists explain the ideas that they borrow from Rawls as they make use of them in their own theoretical work -- for example, theorists such as Ronald Dworkin or Charles Fried and many others. ("Ronald Dworkin's Jurisprudence of Interpretation.")
See generally, Charles Fried, "Jurisprudential Responses to Legal Realism," 73 Columbia Law Review 331, 333 (1988) and George P. Fletcher, "Why Kant?," 87 Columbia Law Review 421, 424 (1987).
I also suggest a careful reading of Professor Hart's essay, "Between Utility and Rights," also in the Columbia Law Review or the classic statement of positivism, H.L.A. Hart's The Concept of Law (Oxford: Clarendon Press, 1961). ("What is Law?")
I hope to read more of Rawls in the future. I expect that his work will present fewer obstacles for me at my advanced age.
Rawls's essay on civil disobedience is now a classic: Compare Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986) with Ernest J. Weinrib, "Law as a Kantian Idea of Reason," 87 Columbia Law Review 472 (1987), then A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 237-239.
When Rawls wrote his great book the most outstanding American philosophers were still, overwhelmingly, despite the few exceptions that confirmed the rule, "white males." At least, this was the attitude in academia. This attitude is now changing.
We are still in need of a great American political and legal philosopher who happens to be a woman. There are several candidates for this position today -- Drucilla Cornell is one -- to provide a fresh perspective on our tradition. Drucilla Cornell, The Philosophy of the Limit (New York & London: Routledge, 1990), pp. 91-116. ("The Good, the Right, and the Possibility of Legal Interpretation.")
Judith Butler is a major political thinker with important things to say to American legal scholars in Gender Trouble: Feminism and the Subversion of Identity (New York & London: Routledge, 1999), pp. 33-45. ("Language, Power, and the Strategies of Displacement.")
Concerning the due process controversy and the dangers of secrecy Judith Butler is highly eloquent about all that is at risk in our current failed policies: Judith Butler, "Indefinite Detention," in Precarious Life: The Powers of Mourning and Violence (New York & London: Verso, 2004), pp. 19-50. ("Obama Says: 'Torture is a Secret!'")
Feminist philosophers and legal scholars may wish to contrast a modernist approach to legal theory in Judith N. Sklar, Legalism: Law, Morals, and Political Trials (Cambridge: Harvard University Press, 1986), pp. 111-209 with a more radical and controversial thinker Mary Joe Frug's, Postmodern Legal Feminism (New York & London: Routledge, 1984), pp. 11-155. ("A Postmodern Legal Manifesto.")
John Rawls is the quintessential "academic" philosopher who is seemingly best read while one is sitting in a leather arm chair somewhere in New England wearing a tweed jacket and smoking a pipe. This is unfortunate because Rawls's originality and radicalism can get lost in his polite and scholarly style. Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986), pp. 5-14. ("Critique of Legal Thought.")
I begin with some biographical comments. I believe that philosophy is always personal. Philosophy is a response to perceived problems in a person's life that demand a solution -- problems which must be connected to a particular person's historical and ethical perspective on life.
I agree with John Dewey on the need for philosophy as way to "fix" what is broken or not working properly.
This "personal" aspect exists even when a philosophy is presented in a highly impersonal and analytical style.
This is not to make all philosophy "subjective" or "relative," a mere matter of opinion, or some such nonsense. A philosophical work may be both personal and highly rigorous, as the best books of philosophy usually are. Stuart Hampshire, "Morality and Convention," in Morality and Conflict (Cambridge: Harvard University Press, 1983), pp. 130-139 then Ben-Ami Scharfstein, The Philosophers: Their Lives and the Nature of Their Thought (New York & Oxford: Oxford University Press, 1980), pp. 15-16. ("Persuasion for Mutuality.") ("Stuart Hampshire and Iris Murdoch on Freedom of Mind.")
Personality is evident in the works of John Rawls whose early formation in Protestant schools is not very different from Kant's Pietist upbringing. Rawls eventually became a "prep-student" at the famous Kent school in Connecticut, an experience which is important to his mature thought, as was his military service during World War II.
Rawlsian liberalism (or liberal-socialism) should be placed between conservatism, whether of the paternalistic or libertarian varieties, on the one hand, and both Communist as well as Fascist forms of totalitarianism on the other hand.
Rawls is the philosopher of that form of democratic liberal centrism which is still dominant in the Western world today, especially in the United States of America. It may not sound exciting on campus, but sober and responsible political thought is more necessary now than ever before in an increasingly dangerous world. ("'This is totally amazing!' -- Donald J. Trump.")
I identify the sources of Rawls's philosophy, first, (despite his surface secularism) in Christianity; then in English liberalism and in the Critical theory of Immanuel Kant, also in American Constitutionalism as well as in the fascinating labyrinths of modern game theory.
British idealism is a closet source for Rawls, more T.H. Green than F.H. Bradley, but also with a debt to William Ernest Hocking and Brand Blanshard.
I provide a summary analysis of Rawls's conclusions concerning liberty and justice, along with some objections which have been raised against his views.
I conclude with an assessment of his continuing importance. If there is any doubt about that importance consider these remarks by one of the strongest libertarian critics of Rawls's theory:
"A Theory of Justice is a powerful, deep, subtle, wide-ranging, systematic work in political and moral philosophy which has not seen its like since the writings of John Stuart Mill, if then. It is a fountain of [important] ideas, integrated together into a lovely whole ... it is impossible to read Rawls's book without incorporating much, perhaps transmuted, into one's own deepened view. And it is impossible to finish his book without a new and inspiring vision of what a moral theory may attempt to do and unite; of how beautiful a moral theory can be."
Robert Nozick, Anarchy, State, and Utopia (Harvard: 1974), p. 183.
I.
John Rawls was born in Baltimore, Maryland in 1921. He studied at Princeton University, earning a B.A. in 1943, shortly before he left for the army as an infantryman and was shipped to the Pacific theater of the war. He visited Hiroshima not long after the bomb fell in 1945, finding himself so altered by this experience that he refused a commission as an officer, left the army and returned to Princeton, where he earned a Ph.D. in philosophy in 1949. He then taught at Princeton, Cornel, MIT, and finally, for more than 40 years, at Harvard University. He died at the age of 82, in 2002.
With the recent publication of controversial biographies of Wittgenstein and Nietzsche the private lives of philosophers have become a matter of legitimate interest for students and scholars. At the risk of disappointing the reader I should point out that there is nothing sensational about Rawls's sex life. Yes, he was married; and no, he was not "gay." (Yes, a possessive may follow a word ending with the letter "s.")
It is no exaggeration to say that Rawls's A Theory of Justice (Harvard: 1971) is simply the greatest work of political philosophy in the English language of the twentieth century.
It is important to have some sense of what Rawls was hoping to accomplish, what he was reacting against in the climate of philosophical ideas during the fifties and sixties, and how he met these challenges.
There were two components of that intellectual climate that Rawls rebelled against: First, he opposed the narrowing and sharpening of the subject-matter of political philosophy that became popular in the aftermath of logical positivism and the "Anglo-American" linguistic revolution in philosophy.
The reduction of social theory to a second-order inquiry concerned exclusively with the meaning of conceptual terms and the logic of economics and politics while turning away from "grand theory" which was seen as finished was profoundly antithetical to a system-builder like Rawls. ("Is clarity enough?")
Frederick Copleston, S.J., Contemporary Philosophy: Studies of Logical Positivism and Existentialism (London: Burns & Oates, 1956), pp. 256-45. ("Reflections on Logical Positivism" with additions from the 1966 edition, then please see the debate between Copleston and Ayer on "universals.")
As for the "climate of opinion against ideologies and grand theories," see Daniel Bell, The End of Ideology (Cambridge: Harvard University Press, 1960), pp. 75-95. (Premature?)
Second, the dominance of utilitarianism in moral and political philosophy was equally unpalatable to Rawls as a Kantian deontologist who regarded utilitarianism as insufficiently respectful of the dignity of persons and the priority of rights and/or even "offensive" to justice.
Rawls's political philosophy is individualist in its starting point; deontological rather than teleological in its moral logic; hostile to all forms of consequentialism; and focused on individuals rather than abstract social collectivities. His theory reacts against utilitarianism by postulating that rights "trump" (Dworkin's term) utilities on the grounds that:
"Each person possesses [by nature] an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason, justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests. The only thing that permits us to acquiesce in an erroneous theory is the lack of a better one; analogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice. Being first virtues of human activities, truth and justice are uncompromising."
A Theory of Justice, pp. 3-4 (emphasis added).
The idea that truth and justice exist at all is radical today, but the notion that they are "uncomprimising" is positively archaic. ("John Finnis and Ethical Cognitivism.")
The foundations for this Rawlsian insight are obviously and explicitly Kantian. To quote Alan Ryan:
"The similarity between Rawls's work and that of Kant extends to ... the almost architectural quality of the resulting theory, with its hierarchical structure of first principles of right and their personal and institutional implications all neatly labelled and rationalized."
"John Rawls," in The Return to Grand Theory in the Human Sciences (Cambridge: 1985), p. 108. ("Why I am not an ethical relativist.")
The idea of a unique ontological and moral significance attaching to each human being resonates powerfully in the American tradition, a tradition in which the Bill of Rights and Constitutional adjudication have made citizens familiar with the doctrine that rights often are or may be "anti-majoritarian" and privileged against legislative encroachment. ("Manifesto For the Unfinished American Revolution.")
The ultimate source for this stance is religious, of course, originating in the notion derived from the scriptures, that all persons are endowed by God with infinite moral worth or eternal significance. Secular forms of this insight are plentiful in modern philosophy, notably in Kant's secularization of the golden rule, but also (again) in the neglected tradition of British idealism, from T.H. Green to John MacMurray. ("David Stove's Critique of Idealism" and "G.E. Moore's Critique of Idealism.")
For developments of Rawlsian thinking, see Brian Barry, The Liberal Idea of Justice (Oxford: Clarendon Press, 1972) and all of the works of David A.J. Richards, Professor at New York University's School of Law, are highly recommended, especially: A Theory of Reasons for Action (Oxford: Oxford University Press, 1971).
In writing a paper on the "right to die" debate in America as a law student I was deeply influenced by these thinkers and felt compelled to return to Kant's philosophy. I have never regretted that return to the classic philosophical tradition and America's Enlightenment thinkers. ("Thomas Jefferson and America's Hope.")
If there is any idea that is at the center of American political thought, then this is it:
"Government is a necessary evil that exists for the people and not the other way around."
No collective goal, no future utopia, no will of a dictator is more important than the rights of the humblest person, including rights to freedom of speech and privacy to say nothing of physical safety and moral autonomy.
This idea still seems in the deepest meaning of the word "revolutionary" and true if also more endangered than ever in our history. (Again: "Manifesto For the Unfinished American Revolution.")
In a world in which dissidents, artists and philosophers, along with ordinary citizens -- all of whom may be deemed "inconvenient" by government officials for some reason -- are often tortured and killed, the idea of the dignity of humanity and concerns over the social value of dissent means that every person must "matter."
I say this as a person whose writings have been censored, altered, suppressed because of their content even as their author has been assaulted and raped, slandered, impoverished, threatened by illicit power in America and ignored by legal authorities informed of the matter. ("What is it like to be tortured?" and "What is it like to be censored in America?")
I write these words in opposition to continuing U.S. government efforts at censorship and against a tidal wave of sanctioned computer crime from one American state. ("An Open Letter to Cyrus Vance, Jr., Esq.")
I write in protest against all forms of torture, including waterboarding, by Americans or any officials, anywhere, of any human victim. ("C.I.A. Lies and Torture.")
A nation committed to this principle of human dignity -- and the U.S. is devoted to this ideal (I continue to hope), however frequently individual Americans may fail to live up to it in places like Abu Ghraib or at home for that matter in the wastelands of New Jersey -- deserves to be regarded as a great nation.
Yes, this principle of individual dignity motivates concern for China's Liu Xiaobo, but it also requires that we protest against the tortures and imprisonment of Mumia Abu-Jamal. ("So Black and So Blue in Prison" and "Foucault, Rose, Davis and the Meaning(s) of Prison.")
It is easy to point out human rights issues in other countries. It is less easy to do something about our own human rights crises. The daily vandalism of this essay may illustrate my point. ("Freedom for Mumia Abu-Jamal" and "Psychological Torture in the American Legal System" then "America's Unwilling Experimental Animals.")
I am sad and sorry to say that I do not know whether I can honestly claim that the United States of America continues to adhere to these lofty ideals found in the Bill of Rights as well as in America's tradition of political theorizing.
Recent decades of my life have been experienced as a torture chamber in which the effort to communicate and think, freely, develops against criminal opposition made possible by government corruption in a nation guilty of monstrous crimes against humanity that is surrendering to a Disney-like fantasy of normality in its public rhetoric while bringing about the death and destruction of millions of people. ("Nihilists in Disneyworld.")
I often cannot recognize America any longer in the actions of our leaders on the world stage. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "New Jersey's 'Ethical' Legal System" then, again, "What is it like to be tortured?" and "How Censorship Works in America.")
In Rawlsian-Kantian thinking no person is merely a means to the ends of others, not to the ends of a majority, nor even to the ends of all others in the state. Each individual possesses an equal moral status before the power of the State, an infinite ontological and moral worth before the law.
No one is a slave (or a "thing") to be traded or tossed away by others. ("What is it like to be tortured?" and "What is it like to be censored in America?" soon "What is it like to be raped?")
Rawls gestures at the tradition of systematic political philosophy in the West by reviving the "social contract" device. This is to "join hands" with illustrious predecessors in the effort to re-imagine politics in order to create (or suggest) better political-legal arrangements for humanity as a whole.
Astonishingly, Rawls's scheme purports to be both objective and universal, not limited by culture or circumstance.
In the era of jaded "postmodernist" philosophies Rawls is a universalist and an objectivist as well as a humanist.
Among these "others" sharing the liberal perspective are Thomas Hobbes, John Locke, Jean-Jacques Rousseau, Immanuel Kant and now, several younger philosophers whose work was inspired initially by Rawls himself, such as Robert Nozick and Bruce Ackerman, among the legal-political theorists indebted to Rawls are R.M. Dworkin, Charles Fried, and Michael Walzer, who is a communitarian critic of Rawlsian thinking and of the controversial "social contract" device.
Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982) and, as a critic of liberalism, Roberto Mangabeira Unger, Knowledge and Politics (New York: The Free Press, 1975). ("Jacques Derrida's Philosophy as Jazz.")
Finally, Alasdair MacIntyre's masterpiece, After Virtue, 2nd Edition (Indiana: Notre Dame Press, 1984), pp. 6-22, pp. 51-79 contains an extended discussion of contemporary moral analysis in the light of the Enlightenment project's alleged "failure."
To say that John Rawls belongs among the great liberals -- it now seems pretty clear that he does -- is a strong claim that I do not make lightly. If this essay accomplishes nothing more than to lead one person to discover Rawls's philosophy it will be more than justified. ("Richard A. Posner on Voluntary Actions and Criminal Responsibility.")
II.
A. "The Original Position" and Two Principles of Justice.
Imagine a group of persons who find themselves in a state of nature. They are intelligent and self-interested agents, says Rawls, who must design political institutions to govern themselves from behind a "veil of ignorance" which prevents them from knowing what social strata each person will fall into or what specific talents and aptitudes the agent will possess, as an individual, in the post-political situation.
Rawls might say further that we should suppose that the agents do not know even to what gender or race they will belong. Bruce Ackerman, Social Justice in the Liberal State (New Haven: Yale University Press, 1980). ("Mana.")
Rawls argues that, in accordance with the logic of game theory, each agent operating in such conditions of "radical uncertainty" will seek, rationally, to ensure that the worst outcome of the game will be as beneficial as possible for the worst-off player -- since that worst-off player may be him- or herself.
One is unlikely to become a racist, for example, if one may end as a member of the despised racial or ethnic group, or as the victim of that very racism. Richard A. Posner, The Problems of Jurisprudence (Cambridge: Harvard University Press, 1990), pp. 71-101. ("Legal Reasoning and Practical Reasoning" then see again my essay "Richard A. Posner on Voluntary Action and Criminal Responsibility.")
This leads to Rawls's formulation of his core principles of justice: 1) The "difference" ("minimax") principle suggests that liberty should be equal for all members of the society that is created, except where minimal infringements on the liberty of some, or different degrees of liberty, will result in the maximum benefit or distribution of liberty for all, especially the worst off members of the group. Provided, again, that the encroachments on liberty are as minimal as possible. 2) The "maximin" principle holds that it is best to provide the maximum liberty for each agent, individually, that remains compatible with the minimal encroachment or burden on the liberty or upon the collective welfare of the worst-off members of the group.
Some social inequality is acceptable, in other words, as the price for improving the condition of the least advantaged. In Rawls's words:
"I shall maintain that the persons in the initial situation would choose two rather different principles: the first requires equality in the assignment of basic rights and duties, [liberties and responsibilities,] while the second holds that social and economic inequalities, for example inequalities of wealth and authority, are just if they result in compensating benefits for everyone, and in particular for the least advantaged members of society."
A Theory of Justice, pp. 14-15.
Those who like slogans may prefer this formulation: "Maximum liberty compatible with minimal inequality." Professor Rawls writes:
"First Principle:
Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.
Second Principle:
Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.
First Priority Rule (The Priority of Liberty):
The principles of justice are to be ranked in lexical order and therefore liberty can be restricted only for the sake of liberty ...
Second Priority Rule (The Priority of Justice Over Efficiency and Welfare):
The second principle of justice is lexically prior to the principle of efficiency and to that of maximizing the sum of advantages; and fair opportunity is prior to the difference principle."
A Theory of Justice, p. 302.
Rawlsian principles aim to produce a society that is fair to the least advantaged while allowing for the creative achievement and corresponding unequal rewards due to the most advantaged. Rawls postulates a political situation that is both egalitarian and freedom-protecting, dynamic and flexible, taking full advantage of the talents of all by allowing for incentives and differential rewards, nonetheless providing for constant improvements in the justice and quality of life available to the least endowed members of the group. This is a democratic form of socialism (or communitarianism) that is respectful of each person's civil rights. ("Roberto Unger's Revolutionary Legal Theory" and "Ronald Dworkin's Jurisprudence of Interpretation.")
In such a liberal-socialist society the existence of a Donald Trump or Kobe Bryant results not only in a higher standard of living for them, as individuals, but also improves the lives of the worst off members of society, collectively, by their mere presence and through their enhancement of the total quantum of wealth, benefits, and goods available to all.
Yet even if everyone will get richer by the sacrifice of the poorest single member of that society -- who is otherwise innocent of any crime -- such a violation of that one person's fundamental rights is prohibited. ("Zero Dark Thirty.")
For Rawls, the "right" is prior to the "good." John Rawls, "Kantian Constructivism in Moral Theory," 77 Journal of Philosophy 515-572 (1980) then Thomas W. Pogge, Realizing Rawls (Ithaca & London: Cornell University press, 1989), pp. 211-281 ("Globalizing the Rawlsian Conception of Justice" and "Master and Commander.")
Rawlsian socialism comes into play at this point in the notion that the talents of the most gifted and the rewards received because of those talents are legitimated exclusively in terms of the resulting benefits to the worst-off members of a community and not because they "belong" to their "owners" naturally. By way of comparison please see: Ernesto "Che" Guevara, El Socialismo y el Hombre Nuevo (Mexico, DF: Siglo XXI, 1982), pp. 53-95. ("El Plan y el Hombre.")
Rawls's political theory has been the subject of strong critiques from both conservatives on the Right, who do not like this socialist idea, and Marxists on the Left, who object to Rawls's concern with individual rights. ("William Godwin and Mary Wollstonecraft.")
I now turn to those criticisms and to a guarded defense of the Rawlsian scheme.
B. Criticism and Defenses.
Rawls claims that his theory is universal and objective -- though he is publishing his book in 1971, not in 1771 -- so that the works of phenomenologists concerning unavoidable historical or linguistic, also Nietzschean "perspectival" limitations on knowledge claims are breezily ignored together with nearly a century of logical and linguistic theory focusing on the limits of human rationality.
Freudian and Marxist suspicions come to mind on this issue. For a sample of phenomenological and hermeneutic criticisms of modernist thought concerning law and politics, see Duncan Kennedy, "Form and Substance in Private Law Adjudication," 89 Harvard Law Review 1685 (1976). (Professor Kennedy's brilliance in articulating postmodernist skepticism within the CLS camp is worthy of both of his classical mentors, David Hume and Karl Marx, also Groucho Marx.)
Peter Gabel's thoughtful and sharp critique of Dworkin's Taking Rights Seriously (Cambridge: Harvard University Press, 1977) -- as I recall Gabel's review appeared in volume 93 of the Harvard Law Review -- focuses some heavy philosophical artillery on Rawlsian-Dworkinian reasoning concerning law from the perspective of a Sartrean existentialist.
The locus classicus for these doubts concerning modernity is Roberto Mangabeira Unger, Law in Modern Society (New York: The Free Press, 1976).
For an update of this reasoning, see Roberto Mangabeira Unger & Cornel West, The Future of American Progressivism (Boston: Beacon Press, 1998), pp. 23-33.
For Rawls, truth is singular, universal, objective and determined rationally, no matter who or where you are. This is what philosophers call "a strong claim." To the extent that Rawlsian theory is compatible with a general phenomenological stance, it would have to be not with a Heideggerian or a Sartrean perspective, but with a highly Kantian reading of Edmund Husserl's early works, that is, with a form of phenomenological idealism leading to hermeneutics. Hans-Georg Gadamer, Truth and Method (London: Sheed & Ward, 1975). ("A Philosophical Investigation of Ludwig Wittgenstein.")
Please see my essay, Paul Ricoeur and the Hermeneutics of Freedom (North Carolina: Lulu Press, 2004). http://www.Lulu.com/JuanG
Nobel laureate, Mario Vargas Llosa, articulates a hermeneutic position defending his political concerns as a novelist and human being in "Interview With Carlos Meneses," in Anne Freemantle, ed., Latin American Literature Today (New York: New American Library, 1978), pp. 325-330:
"I believe all men [and women] have an obligation towards the political problems of their society, and I see no reason why writers [lawyers?] should be excused from this obligation."
Rawlsian epistemic confidence is nothing less than breathtaking. It is simply not a problem to speak in terms of what "rationality" requires at a universal and objective level for all human beings or even "rational choosing agents" on the basis of his postulate of a state of "reflective equilibrium" -- comparisons with Husserl's epoche' are available -- and by the use of the controversial device of the social contract.
Compare Philippa Foot, "Reasons for Action and Desires," in Virtues and Vices (Berkeley & Los Angeles: University of California Press, 1979), pp. 148-156 with Judith Jarvis Thompson, "Some Ruminations on Rights," in Rights, Restitution, & Risk: Essays in Moral Theory (Cambride: Harvard University Press, 1986), pp. 49-66.
It is important to notice how this foundational stance is achieved: Rawls strips his choosing agents of all particularities -- nationality, economic class, and so on. These things do not exist in the "original position" so that there are no subjective biases to obstruct or cloud the agents' "rational" decisions.
A question for Rawls is: In what sense are these choosing agents any longer "real," or human, or even relevant to human beings in the empirical world -- to human beings who are inescapably embodied, historical creatures, filled with particularities, making their political choices both difficult and meaningful? Is Rawls too academic? Is all of this just science fiction? Derek Parfitt, Reasons and Persons (Oxford & New York: Oxford University Press, 1986), pp. 468-480. (Imaginative examples, thought experiments, science fiction scenarios in philosophy, and "The 'Galatea Scenario' and the Mind/Body Problem.")
Rawls would insist that it is not just science fiction that is supporting his argument. Rawls may point to a "superconductor" used by particle physicists to isolate subatomic particles so as to better understand their properties and functions. Knowing that the superconductor creates a "highly artificial environment and situation" scientists will nevertheless make use of it because it isolates functions that otherwise would remain unobservable and relations which might be forever obscured.
Rawls's "original position" is a thought experiment that should be judged by the convenience of the device and plausibility of its results. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 198-231.
The intention behind the social contract device is to make clear that rationality in abstract decision-processes might well be obstructed by extraneous factors or biases, that is, "subjective" preferences that interfere with the "optimally rational solution" to the problem of government.
The proof, Rawls might insist, is in the pudding -- that is, in the intuitive appeal of the results provided by the device together with its logical and practical "consequences." R.M. Hare, "Utility and Rights: Comment on David Lyons's Paper," in Essays on Political Morality (Oxford: Clarendon Press, 1989), pp. 96-106. (H.A. Pritchard's "Rational Intuitionism"?)
Marxists and other communitarians argue, on the other hand, that Rawls is excessively individualistic. The competition and self-interest that motivates his choosing agents are not aspects of "pure" human rationality at all, but are the products of capitalist distortions of the psyche.
In the workers' utopia a "new man" (Ernesto "Che" Guevara, Herbert Marcuse, early Roberto Unger) or new "person" emerges, who is uncontaminated by such characteristics as greed but who is, instead, sufficiently appreciative of the value and need for community, as opposed to an individualist maximizer of self-interest, so that radically self-interested behavior will simply not arise.
Rights and rights-talk are too individualistic, Marxists say, what is needed is a concern with community.
I disagree with Marxist assumptions concerning the variability of human nature. (Again: "Richard Posner on Voluntary Actions and Criminal Responsibility.")
As Freud makes clear in his veiled criticisms of Marx -- in Civilization and Its Discontents, for example -- human aggressiveness, greed as well -- are inherent aspects of the human animal. There is indeed a universal "grasping" quality in the self.
Rawls is right to make such a quality a feature of the "pure" human calculus in the original position. No alteration in political structures or economic arrangements, alone, not even the abolition of private property, will change such a fundamental human feature. Evil is a part of human beings and always will be. ('''I am Legend': A Movie Review" and "The Wanderer and His Shadow.")
Conservatives enter the fray from the opposite direction to say that Rawls is wrong to criticize profiting from exceptional ability -- or even good fortune -- by those who possess such things merely on the basis of the welfare of the "worst off" members of the community.
My talents and opportunities are mine. I have every right to use them in any way that I wish, say Robert Nozick and Allan Bloom.
What is more, I may use my talents and/or wealth "irrationally" or for any purpose whatsoever. If I wish to give all of my money to my cat, for instance, and let poor people eat cake or starve, for all I care, then I should be free to do so.
Selfishness and greed only seem to be an example of the stubborn evil in human nature. For Ayn Rand and others the "virtue" of "selfishness" is the epitome of what is best about persons. As Professor Ryan explains:
"Rawls's theory does not merely support the thought that those who are asked to contribute by way of taxation to the operations of the welfare state have no right to complain about the use of their income; it supports the more radical thought that it is not their income at all. ...To Nozick, [Rawls] can properly reply that external property belongs in a morally less serious category than do our own abilities, and these in a less serious category than do our personal affections [or the requirements of community?]."
The Return of Grand Theory, pp. 113-114 and Kurt Baier, The Moral Point of View (Ithaca: Cornel University Press, 1958). (Professor Baier's ethical objectivism or neo-Kantianism prompted criticisms from Professor Foot along with a number of leading philosophers in the sixties.)
"From each according to his ability," Rawls might respond, "to respect for the rights and needs of all, regardless of abilities or power."
It is a sure sign that a philosopher is on to something when he or she is attacked from both the Right and Left of the political spectrum.
It is the opposite of a weakness of Rawlsian theory that it is compatible with liberal and democratic socialist arrangements. Ralwsian philosophy is not compatible with a State command economy that infringes on fundamental liberties or rights for any reason or no reason. For a strong criticism of Rawlsian thinking, see Allan Bloom, "Justice: John Rawls Versus the Tradition of Political Philosophy," in Giants and Dwarfs: Essays 1960-1990 (New York: Simon & Schuster, 1990), pp. 315-348. ("The Misuse of Kant.")
Cuba's recent flexibility in the national economy to allow for private initiatives, arguably, brings that society within the ambit of the states recommended in Rawlsian thinking. Castro, Guevara, Unger and others acknowledge the evil in human nature while contending that much of this evil can be ameliorated with an improvement in the material conditions of people's lives.
Given my experiences at these blogs over the past several days (or even the last twenty-one years), I am inclined to be more pessimistic about evil and corruption than these thinkers seem to be. ("Let Them Eat Caviar" and "Hunger in America.")
It may now be possible to offer my tentative assessment of the overall importance of Rawlsian political theory and its significance for future thought.
For a perspective from a Chinese scholar and thinker, see Zhiyuan Cui, "An Appendix on Saving and Investment," in Roberto Mangabeira Unger, Democracy Realized: The Progressive Alternative (New York & London: Verso, 1998), pp. 279-287. (China offers a powerful model to Cuba and other Third World states and/or developing societies concerned to diversify economies while retaining socialist commitments.)
China's effort to ease tensions in the Korean peninsula should be seen as expressive not only of a new awareness of China's global responsibilities as an emerging superpower, but also of different psychological assumptions than U.S. diplomats often make concerning the motivations of states in international affairs or the best solutions to what Henry Kissinger described as "geopolitical conflicts."
During his visit to America, President Hu Jintao met with Mr. Kissinger signalling both recognition of Kissinger's role in the historic "opening" to China, but also China's new interpretation of Kissinger's method of "quiet diplomacy."
It may not be possible to starve or threaten, bomb or isolate nations into doing what Washington "demands."
Reasoning together as equals may accomplish better results without the human suffering produced by embargoes and economic sanctions. Sadly, saying this will ensure additional insertions of "errors" in this text. ("How Censorship Works in America" and "What is it like to be censored in America?")
For one example of the consequences resulting from unfettered licensing of brutal bombing or sanctions regimes and more embargoes there is the disaster that is Pakistan's broken alliance with the United States -- an alliance which seems to be a casualty of one of our robot bombs.
It is important to have a clear understanding of the high price that we are paying for clinging to failed militarism in what is only partly a military struggle against Islamic fundamentalist terrorism.
We cannot "condition" persons into obeying our will as slaves or subjects of a new imperialism, economic or otherwise, especially after nations have struggled for independence from former colonial powers. The word "alliance" implies equality and mutual respect. ("Vladimir Putin's Advice to America.")
III.
Rawls returned Anglo-American philosophy to the "public square" in the aftermath of the Holocaust and Hiroshima. This alone is an important achievement, but also through his recognition of the universal importance of civil liberties in society, of the individual's right to dissent and to be "different," to civil disobedience, while retaining a commitment to community over selfishness, acknowledging the priority of liberty in a political scheme that recognizes the vital need for equality is a lasting legacy and achievement.
In a famous closing paragraph, Rawls writes at page 587, of A Theory of Justice:
"The perspective of eternity is not a perspective from a certain place beyond the world, [now?] nor the point of view of a transcendent being; rather, it is a certain form of thought and feeling that rational persons can adopt within [emphasis added] the world. And having done so, they can, whatever their generation, bring together into one scheme all individual perspectives and arrive together at regulative principles that can be affirmed by everyone as he lives by them, each from his own standpoint. Purity of heart, if one could attain it, would be to see clearly and to act with grace and self-command from this point of view." ("Donald Davidson's 'Anomalous Monism.'")
Rawls strikes the appropriate balance between ego and community, the common good and individual rights, particularity and universality in his defense of the need for political ideals by achieving in his finished political theory a very American balance between "responsible wealth" and "dignity for the poorest" of us, that is, for the least advantaged members of the polis.
G.J. Warnock, "Kant," in D.J. O'Connor, ed., A Critical History of Western Philosophy (New York: The Free Press, 1964), pp. 296-319.
If Rawls articulates the basic philosophical position of liberals in America then Robert Nozick expresses the position of political Conservatives. Alasdair MacIntyre makes essentially this argument in After Virtue.
Rawls deserves to be better known among non-philosophers.
The global community should understand the sophistication and power in America's best political philosophizing which is available to all. Please see Martin Diamond, "The Federalist," in Leo Strauss & Joseph Cropsey, eds., History of Political Philosophy, Second Edition (Chicago & London: University of Chicago, 1981), pp. 631-652.
I suggest a return to America's sources, for example: Thomas Paine, "The Rights of Man," in Sidney Hook & Jack Fruchtman, Jr., Common Sense, Rights of Man, and Other Essential Writings of Thomas Paine (New York: Signet Classic, 2003), pp. 129-351.
Why are American embassies not offering materials on Rawls (Nozick, Fried, Nussbaum, Dworkin, Posner) or sponsoring conferences dealing with A Theory of Justice in many parts of the world? Why is this essay still attracting sabotage efforts from an American jurisdiction? Why am I subjected to cybercrime, censorship, plagiarism, computer crime before the eyes of the world in a society that claims to protect fundamental rights that include freedom of speech in its foundational documents? Ethics? ("An Open Letter to Cyrus Vance, Jr., Esq." and "Law and Ethics in the Soprano State.")
I cannot answer these questions.
I can, however, continue to confront America with these basic principles of law and political morality by underlining the contradiction between what we say we believe and what we do in the world. Joseph Cropsey, "Karl Marx," in History of Political Philosophy, pp. 755-782.
John Rawls will be regarded as the greatest American political thinker of the twentieth century, a philosopher whose ideas are more needed now than ever before in a world that is still, sadly, divided by terror and warfare, by brutal denials of liberty to dissidents and cruel economic inequalities produced by embargoes and discrimination.
We want both freedom and justice. Nothing less will do.
Why not grant these same values and rights to others in the world? ("Time to End the Embargo Against Cuba.")
Labels: Political Philosophy.
posted by Juan Galis-Menendez @ 7:10 PM
