http://www.units.it/etica/2006_1/TRIFIRO.htm
John Rawls:
anti-foundationalism, deliberative democracy, and cosmopolitanism
University
of Dublin – Trinity College
Abstract
This paper aims at illustrating how from the works of John Rawls we can
see emerging a viable anti-foundationalist cosmopolitan and deliberative
democratic approach to liberalism. I shall argue that, despite
what some of his critics believe, Rawls’s liberal theory of justice (1) is not
concerned with foundational preoccupations (e.g. Michael Sandel); (2) does not
ignore concrete processes of collective deliberation over matters of public interests (e.g. Amy Guttman, Dennis Thomson,
Brian Barry); (3) nor does it endorse rigid limits to the scope of democratic
deliberation (e.g. Jeremy Waldron, John Gray,
Richard Bellamy). Yet I shall claim, following Andrew
Kuper, that (4) there is a real risk of infringing individuals’ primary moral
significance in trying to stretch too much the limits of liberal toleration in
order to accommodate political liberalism with multiculturalism in the
international sphere. |
1. Political liberalism
and anti-foundationalism
Michael Sandel, one of the main critics of John
Rawls’s liberalism, sees it as an instance of that “deontological liberalism”,
stemming from Kant’s transcendental approach, concerned not only with moral and
political principles but also with their foundations. That is, he thinks that
Rawls endorses deontological liberalism not only in its moral sense, opposed to
consequentialism as a first-order
political and moral position «containing certain categorical duties and
prohibitions which take unqualified precedence over other moral and practical
concerns», but also in its foundational sense, opposed to teleology as «a form of justification in which first principles are
derived in a way that does not presuppose any final human purpose or end, nor
any determinate conception of the human good». (1)
Contrary to this conviction at the basis of Sandel’s
criticisms of Rawls’s liberalism, which I shall not deal with here, I shall
show how Rawls, during the past thirty years, as he himself continually
repeated, was just trying to put together into a coherent and clear system the
political and moral assumptions and intuitions that he took as best expressing
the liberal respect for people’s freedom and equality, without any consideration of their epistemological status, let
alone attempting to show their epistemological privilege over the assumptions
and intuitions of other moral and political traditions. As he said, his
conception of justice is «political, not metaphysical», and this means, amongst
other things, that he took his conception of justice as a first-order moral and
political conception without any epistemological privilege attached to it. I
shall thus show that Rawls provides a concrete example of a viable
anti-foundationalist endorsement of liberalism; a concrete example of an
affirmative answer to Sandel’s rhetorical question: «Can liberalism of the
first [moral] kind be defended without recourse to the second [foundational]?»
(2) We can start shedding some light on why Sandel is
wrong in regarding Rawls as holding a foundational position by noting that
there is no epistemological tension in the difference between deontological and
teleological conceptions. What I mean by this is that every deontological
position has a value, or a set of values, the satisfaction of which sets a
final end to aim towards; and every teleological position has a value, or a set
of values, that it considers to be of the most fundamental importance and not
subject to compromise. Namely, any point of view stands on some basic values
which can be conceived both, in a deontological way, as a matter of ultimate
importance not to be questioned, and, in a teleological way, as the ultimate
end towards which to direct our practices. There is really no epistemological
difference involved here, but only a different way of accounting for the last
court of appeal of our justifications, either as a final end or as first
principle. Thus, both teleological and deontological justifications end in some
ultimate value, or set of values, which does not presuppose any other one. If
you have foundationalist inclinations you will regard that last set of values
as corresponding to how things really
are in themselves; if you have anti-foundationalist inclinations you will think
instead that that set of values, which is the last court of appeal for our
justifications, stands only on itself, that it constitutes only the ungrounded
territory on which we currently stand. But this epistemological difference does
not concern the choice of viewing our ultimate values as final ends or as first
principles.
I think the cause of this misreading of the difference
underlying the distinction between deontological and teleological theories lies
in the potentially misleading formulation of the actual moral and political
opposition traditionally involved in that distinction. This is the opposition
that Sandel himself acknowledges as being behind the
deontology-versus-consequentialism divide, an opposition between first-order
moral and political theories holding different views about the fundamental
values to which to give primacy, and that is usually formulated in terms of
theories that give priority to the right over the good and those that instead
put the good before the right.
The priority of the right over the good is indeed the
central conviction at the basis of Rawls’s – and in fact of any form of –
liberalism. I say that this can be a misleading formulation of the central
tenet of liberalism because, by setting the right over the good, it may lead,
and in fact has led, people to think that liberalism is based on the claim that
its conception of justice, of the right way in which to regiment our social
interactions and collective decision-making practices, stands on an epistemologically different ground from
our conceptions of what it means to live a good life. Indeed, it has led people
to think that liberalism maintains that the right stands on itself in an
epistemologically privileged way, independent of any conception of the good.
This reading of the difference between the right and the good may well suit
Kant’s transcendental conception of morality, but it does not necessarily have
to be linked with the liberal thesis of the priority of the right over the good.
This thesis, when held with an anti-foundationalist conscience, amounts to
nothing else than the statement with which Rawls opened his Theory of Justice, namely, that
according to liberalism «justice is the first virtue of social institutions». (3) And whatever a virtue is, it surely is connected
with our conception of the good life.
Claiming the priority of justice over other values –
the welfare of society as a whole, for example – amounts only to the
first-order moral and political claim that «the rights secured by justice are
not subject to political bargaining or to the calculus of social interests», (4) and not to the epistemological one that the liberal
conception of justice, standing detached and aloof from any consideration of
the good, must be regarded as the conception that we would endorse once we
divested ourselves of our prejudicial views of the good life. To say that the
rights secured for people by justice are not to be subject to political
bargaining is simply to express a particular moral and political position about
the main concerns and values to which a liberal community must give priority in
considering how to organize its main structures and institutions, namely, about
the restrictions on conceptions of the good whose pursuit must be regarded as
acceptable for a society of free and equal persons. As Rawls says,
In justice as fairness the priority of right implies
that the principles of (political) justice impose limits to permissible ways of
life; and hence the claims citizens make to pursue ends that transgress those
limits have no weight (as judged by that political conception). (5)
What we need to know in order to come to an adequate
understanding of political liberalism is what conception of the liberal good is
conveyed by “justice as fairness”: what exactly are the principles of political
justice that we would choose from the standpoint of justice as fairness in
order to foster and instantiate that conception? In the course of our answering
these questions, and thus explaining the moral and political content of justice
as fairness, we will also come to a proper appreciation of its
anti-foundationalist character.
We can start answering those questions by pointing out
the main motivating concern behind Rawls’s elaboration of justice as fairness.
This is to give adequate expression to the two fundamental values of the
liberal tradition: freedom and equality. The basic concern that these values
pose for a liberal society is that of political legitimacy. Rawls’s approach to
the political question of legitimacy follows the tradition of social contract
theories of justice, and maintains that, given both the pluralistic nature of
our society and the coercive nature of state power, the governing organisms of
the state can exercise their power legitimately only by submitting the choice
of the principles regulating the terms of social cooperation and the processes
of collective decision-making to the free and considered assent of its citizens
regarded as free and equal persons. This is what Rawls calls the «liberal
principle of legitimacy».(6) It
amounts to the familiar democratic claim that, in a liberal society, state
power is legitimated only when it is exercised with the free consent of, as far
as possible, everyone bound by it.
From this central idea Rawls starts drawing the lines
of his conception of justice. The central point is that this is a political conception. For a conception
of justice to be political means three things:
First, that it is a moral conception worked out for a
specific subject, namely, the basic structure of a constitutional democratic
regime; second, that accepting the political conception does not presuppose any
particular comprehensive religious, philosophical or moral doctrine; rather,
the political conception presents itself as a reasonable conception for the
basic structure alone; and third, that it is formulated not in terms of any
comprehensive doctrine but in terms of certain fundamental ideas viewed as
latent in the public political culture of a democratic society. (7)
The basic structures of a society are the major
political, economical and social institutions that regulate the assignment of
fundamental rights and duties to citizens and the distribution of the benefits
coming from their social cooperation. The main consideration behind the
limitation of the subject of the conception of justice for a democratic society
to its fundamental institutions, which links the first with the other two
features of the political, is that to lay down regulating principles that
extend beyond the limits of the main institutions of political, social and
economical life to the whole of life is not consistent with respect for the
freedom and equality of the citizens of a pluralist and democratic society.
This is because, given the fact of the plurality of incommensurable conceptions
of the good and incompatible ways of life, «as a practical political matter no
general moral conception can provide a publicly recognized basis for a
conception of justice in a modern democratic state».(8) This means that there is no way to legislate on every aspect of life without violating
the values of freedom and equality, for «a continuing shared understanding on
one comprehensive religious, philosophical, or moral doctrine can be maintained
only by the oppressive use of state power».(9) The idea is that a political conception of
justice for a constitutional democracy committed to safeguarding the equality
and the freedom of its citizens «should be, so far as possible, independent of
controversial philosophical and religious doctrines», it must be presented as a
«freestanding view». From this it follows that
to formulate such a conception we apply the principle
of tolerance to philosophy itself: the public conception of justice is to be
political not metaphysical. (10)
This point, corresponding to the second feature of the
political, is what lies behind the claim that for liberals the right takes
priority over the good, and it is made clear, for example, by Rawls’s remark
that a political conception of justice «is a module, an essential constituent
part, that fits into and can be supported by various reasonable comprehensive doctrines that endure in the society
regulated by it». (11)
The freestanding character of political liberalism is
a direct consequence of the liberal principle of legitimacy according to which,
given people’s different and conflicting comprehensive doctrines, there is no
other way to propose a non-oppressive organization of society than to look for
principles of justice that, as far as possible, all citizens could freely and
reasonably endorse; principles that, as Rawls puts it, could be «the focus of
an overlapping consensus of at least the reasonable
comprehensive doctrines affirmed by its citizens». (12) This implies that a liberal society requires from
its citizens a commitment to a particular “civil duty”, «the duty to be able to
explain to one another…how the principles and policies they advocate and vote
for can be supported by the political values of public reason», (13) intended as «the reason of equal citizens who, as a
collective body, exercise a final political and coercive power over another in
enacting laws and in amending their constitution».(14)
It is this idea of reasonable
consensus obtained through a collective rational deliberation respectful of
everyone’s freedom and equality that lies behind the claim to primacy of the
right over the good. This primacy expresses in fact the restraints to be placed
on collective decision-making for it to be accepted as reasonable. It expresses
the idea that in order to bring about a reasonable
consensus among people holding and pursuing different conceptions of the good
we need to draw as few restrictions to the acceptable ways of life of citizens
as is compatible with the equal freedom of everyone to pursue their own way of
life; we need, that is, to give priority to the value of having as much respect
for every citizen’s choice of the good life as is consistent with their equal
freedom, over the conviction that only one
particular conception of the good life is worth following and should thus be
imposed over the others.
It is here, in the reference to “reasonableness”, that
we find one of the points where the moral character of Rawls’s liberal
conception of justice – its being a conception of the good – is made the more
manifest. This is also one of the points in which Rawls most clearly expresses
his distance from the foundationalist tradition. The point of insisting on the
reasonableness of the comprehensive doctrines supporting the liberal conception
of justice is, in fact, to recognize that not any kind of pluralism, not any
project of the good life, is consistent with a democratic organization of
society; that the possibility of realizing a pluralist, free and equal society
depends on its citizens endorsing, along with their own particular different
conceptions of the good life and rationality, the same conception of public
reason, the same conception of how best to regulate their encounters and
cooperation in respecting each other’s freedom and equality. It is to recognize
that, in order for different and conflicting comprehensive doctrines to be able
to cohabit in a liberal society, they must share a particular moral attitude
and virtue, that of reasonableness, intended as «the willingness to propose
fair terms of cooperation and to abide by them provided others do», (15) the civic virtue that involves «a willingness to
listen to others and a fair-mindedness in deciding when accommodations to their
views should reasonably be made». (16) It is to recognize, that is, that participation in a
liberal society requires the willingness to enter into public deliberation
about matters of common concern in respecting each other as free and equal
persons.
This recognition has great importance for a proper
understanding and evaluation of the liberal project, especially in view of
answering the criticisms that insist on its partiality, on its failure to abide
by its aim of presenting a freestanding point of view on justice, of creating a
state neutral towards its citizens’ conceptions of the good. We can see how a
liberal response to this criticism may go by noting that Rawls is aware that
the liberal project does not intend to be neutral towards any point of view;
aware that this intention would be self-stultifying since, aiming at building a
reasonable society, liberalism must
stand in direct opposition to all the unreasonable
tendencies that represent a menace for its realization, i.e. the illiberal
tendencies to violate the fair terms of social cooperation and the freedom and
equality of persons. As he says:
Even though political liberalism seeks common ground
and is neutral in aim, it is important to emphasize that it may still affirm
the superiority of certain forms of moral character and encourage certain moral
virtues...the virtues of fair social cooperation such as the virtues of
civility and tolerance, of reasonableness and the sense of fairness…The
principles of any reasonable political conception must impose restriction on
permissible comprehensive views, and the basic institutions those principles
require inevitably encourage some ways of life and discourage others, or even
exclude them altogether. (17)
Rawls is then aware that the priority of right does
not mean that we must avoid ideas of good. It only means that «the ideas used
must be political ideas: they must be tailored to meet the restrictions imposed
by the [liberal] political conception of justice».(18) Thus, to be reasonable is, for Rawls, to demonstrate
one of the virtues required for the working of a free and equal pluralist
society, and by insisting on the requirement of reasonableness he intends to
stress both the moral and political nature of the liberal project.
By identifying the reasonable with a moral attitude
Rawls also wants to create distance between himself and any foundationalist
approach to ethics (19)
and politics. For Rawls, in fact, to say that reasonableness is a moral virtue
coincides with the denial that it is an epistemological idea, (20) and this denial means that in justice as fairness
«there is no thought of deriving the reasonable from the rational». (21) In good pragmatist fashion Rawls distances himself
from foundationalism by remarking that «only as a result of philosophy, or a
subject in which the rational has a large place would anyone think it necessary
to derive the reasonable from the rational»; (22) would anyone
think that if the reasonable can be derived from the
rational, that is, if some definite principles of justice can be derived from
the preferences, or decisions, or arrangements, or agreements of merely
rational agents in suitably specified circumstances, then the reasonable is at
last on a firm basis. The moral skeptic has been answered. (23)
According to Rawls the reasonable and the rational are
two complementary moments of our lives. We manifest rationality when we deliberate
over alternative courses of action from within the framework of a hierarchical
system of values. Rationality is for Rawls the means to an end activity of
finding the best way to act and to think about both factual and evaluative
matters, in accordance to our
ultimate system of values. We manifest instead reasonableness in our public
behaviour, in our encounters with the others, especially with those holding
different systems of values from our own. To be reasonable is to behave in
accordance with the liberal principles of justice. Because of this
complementarity there is no deriving of the reasonable, of the liberal
principles of justice, from the rational. On the contrary, since our
rationality works only within a system of values,
it seems likely that any plausible derivation must
situate rational agents in circumstances in which they are subject to certain
appropriate conditions and these conditions will express the reasonable. (24)
This ethnocentric point will become even clearer once
we have turned to consider the standpoint Rawls regards as best expressing the
liberal idea of the good and the reasonable and as most appropriate from which
to derive the liberal principles of justice, the standpoint of the original position.
Although many have read the formulation of the original position as showing
Rawls’s foundationalist inclinations, I shall show instead how it matches
perfectly well with the last passage quoted, with the pragmatist subordination
of the rational to the moral. Before turning to the original position, however,
we have to shed some light on the third feature of the political, where the
connection of Rawls’s conception of justice with anti-foundationalism is the
closest.
But first it is opportune to make two further
observations that connect the second feature of the political to the
anti-foundationalist predicament. I want to point out that to conceive of
rationality as Rawls does, as embedded in our evaluative system and as
incapable of answering the sceptic, is to join the pragmatist
anti-foundationalist conception of rationality. In particular, I want to point
out that from this ethnocentric conception it follows that, for those who are
placed within the liberal ethnos,
rationality comes to overlap with reasonableness; it comes, as Richard Rorty
maintains, «to name a set of moral virtues: tolerance, respect for the opinions
of those around one, willingness to listen, reliance on persuasion rather than
on force…the virtues which members of a civilized [read ‘liberal’] society must
possess if the society is to endure». (25)
My second remark, related to the first, concerns the
significant point of contact between anti-foundationalism and liberalism. It
ultimately concerns the fact that the priority of the right over the good can
be intended as the priority of liberal values over Truth, the priority of the
respect of people’s freedom and equality, as expressed in the liberal principle
of legitimacy, over Philosophy. Indeed, we can see this point emerging,
somewhat counter-intuitively, from Rawls’s very dissociation of liberalism from
scepticism. Rawls points out that the liberal principle of legitimacy, which
requires us to extend the application of the principle of toleration from
religion to philosophy and to any sort of comprehensive doctrines, is not based
on the consideration of the impossibility of the foundational project. In fact,
the desideratum of publicity itself requires our political and moral conception
not to presuppose any particular position on such controversial matters as
those concerning the possibility of reaching Truth. As Rawls says, «it would be
fatal to the idea of a political conception to see it as skeptical about, or
indifferent to, truth. Such skepticism or indifference would put political
philosophy in opposition to numerous comprehensive doctrines, and thus defeat
from the outset its aim of achieving an overlapping consensus». (26) Of course, as we have seen, there may come times
when our support for the ideals of political liberalism will require from us a
direct involvement in controversial issues. These are the times when we have to
defend the basis of democratic cooperation of free and equal citizens against
the threats coming from people not sharing liberal ideals of reasonableness.
This will happen, for example, «whenever someone insists that certain questions
are so fundamental that to insure their being rightly settled justifies civil
strife». At this point, as Rawls recognizes, «we may have no alternative but to
deny this, or to imply its denial and hence to maintain the kind of thing we
had hoped to avoid». (27)
Yet this defence of the liberal conditions of freedom and equality does not
stand on foundationalist ground; it is just the result of the moral and
political commitment of putting reasonableness as our overriding goal, immune
from political bargaining. And precisely on this same moral and political
ground stands the liberal extension of the principle of toleration to
philosophy. The idea is that even if foundationalism were possible, even if we
could get at the way things really
are and should be, in the name of the
values of freedom and equality we must refrain from imposing that God’s-eye
view of things on everyone. The idea is that if we care about freedom and
equality more than anything else we will have to ask God, or his
representatives, to sit down with all the others at the table of free and open
discussion. If we want to keep our encounters free and open, we must avoid a
public foundationalist attitude. In this
moral and political sense Rawls says that the extension of the principle of
tolerance to philosophy is not the result of meta-philosophical scepticism.
Both considerations can be seen as flowing directly
from the liberal principle of justification, which we can now read as
characterizing a liberal society in Rorty’s pragmatist terms, as «one which is
content to call ‘true’ [read ‘legitimated’] whatever the upshot of fair, open
and free encounters turns out to be». (28) Such a society for Rawls, making the same point,
replaces the search for moral truth interpreted as
fixed by a prior and independent order of objects and relations, whether
natural or divine, an order apart and distinct from how we conceive of
ourselves with the search for reasonable grounds for reaching agreement rooted
in our conception of ourselves and in our relation to society. (29)
That is, a liberal society replaces foundational rationality with conversational reasonableness. In the
light of this conception of liberalism we can then paraphrase the idea of the
priority of the right over the good in the terms of Rorty’s pragmatist slogan
which says: «if we take care of political freedom, ‘true’ and ‘good’ will take
care of themselves». (30) The idea is that, although liberalism is
philosophically neutral, if an Archimedean point were to exist it would not be
suitable for liberalism, because, as Rawls remarks, given the fact of
reasonable pluralism,
philosophy as the search for truth about an
independent metaphysical and moral order cannot provide a workable and shared
basis for a political conception of justice for a democratic society. (31)
However, if Rawls acknowledges that to endorse the
liberal ideals of freedom and equality does not commit one to
meta-philosophical scepticism – that «to deny that religious beliefs [as well
as any other comprehensive beliefs] can be publicly and fully established by
reason is not to say that they are not true» (32) – his own endorsement
of political liberalism, as a member of a liberal community, does actually
break with any Archimedean point in a more direct way than the political one
just considered. This is shown by his conception of justification in moral and
political matters, from which the third feature of political liberalism can be
seen to follow.
The conception of justification at the basis of
Rawls’s formulation of the liberal principles of justice is, in fact,
anti-foundationalist through and through. It is the holistic and ethnocentric
view that since Theory of Justice has
been associated with the expression “reflective equilibrium.” The idea behind
this expression is that the justification of a conception of justice is not a
matter of «deduction from self-evident premises or conditions on principles»,
but rather a matter of finding a considered balance, a “reflective
equilibrium”, between our intuitive convictions and our theoretical principles
by way of shaping our position from both sides – a matter, as Rawls puts it,
«of the mutual support of many considerations, of everything fitting together
into a coherent view». (33)
Implicit in this view is that there is no belief and no principle which is a priori exempt from revision, that
there is no way to anchor some of our beliefs and principles on necessary
ground. As Rawls states it clearly in a subsequent paper, according to the view
of “reflective equilibrium”,
what justifies a conception of justice is not its
being true to an order antecedent to and given to us, but its congruence with
our deeper understanding of ourselves and our aspirations, and our realization
that, given our history and the traditions embedded in our public life, it is
the most reasonable doctrine for us. (34)
Just as the pragmatists, Rawls maintains that the only
materials we can work on in order to formulate a particular conception of
justice – indeed, in order to formulate any kind of conceptions – are the
intuitive ideas, and more or less considered beliefs, that shape our points of
view and that are usually embedded in the tradition of the culture we belong
to. There is no way of resorting to an order transcending every practice.
According to this holistic and ethnocentric view of justification the aim of
political philosophy will not be, then, the foundational one of finding a way
to answer the moral sceptic and grounding an ideal just regime sub specie
aeternitatis, but rather the pragmatist one
to articulate and to make explicit those shared
notions and principles thought to be already latent in common sense, or, as is
often the case, if common sense is hesitant and uncertain, and does not know
what to think, to propose to it certain conceptions and principles congenial to
its most essential convictions and historical traditions. (35)
If then the conception of justice to be worked out is
for a democratic society, we shall have to «draw solely upon basic intuitive
ideas that are embedded in the political institutions of a constitutional
democratic regime and the traditions of their interpretation». (36) As Rawls describes his own procedure:
We collect such settled convictions as the beliefs in
religious toleration and the rejection of slavery and try to organize the basic
ideas and principles implicit in these convictions into a coherent conception
of justice. We can regard these convictions as provisional fixed points which
any conception of justice must account for if it is to be reasonable for us. We
look, then, to our public political culture itself, including its main
institutions and the historical traditions of their interpretation. The hope is
that these ideas and principles can be formulated clearly enough to be combined
into a conception of political justice congenial to our most firmly held
convictions. (37)
We have thus eventually arrived at the third feature
of the political nature of Rawls’s “justice as fairness”, which turns out to be
a direct consequence of its being a freestanding conception of justice. We have
seen that if we want the conception of justice for the basic structure of a
society to be democratically endorsed by its citizens, we must avoid as much as
possible relying on any particular comprehensive doctrine, on any controversial
idea and principle which we cannot expect that other people reasonably agree
to. We must rather try to obtain an overlapping consensus relying as much as
possible on a conception of public reason shaped by reciprocal respect for the
equality and freedom of each point of view participating in the collective
process of deliberation. And the best way to seek this public basis of
agreement on a conception of justice for a pluralist society, without
infringing people’s freedom and equality, Rawls tells us, is «to work from
fundamental intuitive ideas implicit in the public culture and to abstract from
comprehensive religious, philosophical, and moral doctrine». (38) Indeed, in the light of the “reflective equilibrium”
conception of justification, this is the only
possible way, for there is no possible appeal to an order antecedent to and
given to us.
2. The epistemological
and political significance of the original position: anti-foundationalism
(again), deliberative democracy and self-reflexivity
Up to this point I have presented Rawls’s thought
without consideration of its development from A Theory of Justice to Political
Liberalism. I followed this approach because it is my conviction that the
changes that Rawls has made to his initial formulation of justice as fairness
are more concerned with its presentation than with the substance of its
content. These changes can be seen as the results of an effort to make the
fundamental intuitions behind his conception of justice clearer in the light of
the criticisms that have been mistakenly advanced against its initial
formulation. These criticisms have been concerned mainly with Rawls’s use of
the idea of the original position and it is exactly from these attempts at
reformulating the basic intuitions of his conception of justice, without making
any further use of that controversial idea, that the main changes in Rawls’s
later thought are derived.
I shall consider here two such criticisms, showing why
they are mistaken notwithstanding their initial plausibility on a superficial
reading of the construction of the original position, and how Rawls has thought
to reformulate the basic concepts of justice as fairness in order to obviate
them. One criticism is concerned with the epistemological significance of the
original position, the other with its political significance for liberalism. In
replying to them we shall be able to appreciate better both the
anti-foundationalist character of Rawls’s liberalism and its endorsement of the
value that must be regarded as central to a healthy liberal society, that of
collective self-reflexive discussion over its fundamental rights claims and
procedural principles. First a brief sketch of the original position.
3.1. The
original position
The liberal principle of legitimacy is the fundamental
idea shared by all theories of justice based on the notion of social contract.
It does not come as a surprise, then, that Rawls resorts to the idea of the
social contract, too. However, Rawls is unsatisfied with the way the classical
contractualist theorists envisaged the contractual situation. He thinks they
overlooked important moral intuitions that any appropriate formulation of the
principles of justice for a liberal society must account for. Thus, by
proposing justice as fairness he aims to obviate this defect by recasting the
doctrine of the social contract in a way which «generalizes and carries to a
higher level of abstraction the familiar theory». (39)
While the classical theorists of the social contract
imagined real men and real women, endowed with their place in society, their
natural assets and their particular interests and conceptions of the good,
gathering together to bargain and reach an agreement on the form of government
for their community, Rawls wants us to consider carefully what should be the
conditions under which free and equal persons ought to enter an agreement on
the principles of justice regulating the terms of social cooperation in order
for that agreement, and thus those terms, to respect their freedom and
equality. The idea at work here is that
the most appropriate conception of justice for the
basic structure of a democratic society is one that citizens would adopt in a
situation that is fair between them and in which they are represented solely as
free and equal persons. (40)
According to Rawls, the classical social contract
theories were far from considering fair conditions of encounter between the
different contractual parties of society, and thus far from being able to
arrive at appropriate principles of justice respecting all citizens’ freedom
and equality; this is because, by considering those parties as real human
beings with all their values, interests, natural talents and wealth, they were
not able to ensure that imbalance between the bargaining powers of citizens –
which, as Rawls remarks, «naturally arises within the background institutions
of any society from cumulative social, historical, and natural tendencies» (41) – are eliminated; and allowing some people greater
bargaining advantages than others means compromising the fairness of social
interactions and the freedom of those who are disadvantaged.
Rawls introduces the idea of the original position
precisely to capture the egalitarian conviction, which the classical
contractualist theories did not adequately account for, that the contractual
parties are to be symmetrically situated in order to reach an agreement under
fair conditions. That, when thinking about justice, the differences between
persons due to natural contingencies (such as their sex, their race, their
native talents) and to social chance (such as their wealth and their income),
and those deriving from their different interests, values and conceptions of
the good life, should be regarded as
irrelevant, because, as Rawls says, «these aspects are arbitrary from a moral
point of view».(42) It is this moral point of view that Rawls intends to
give expression to through the idea of the original position. He does so by
asking us to imagine the persons in the original situation as behind a “veil of
ignorance” that deprives them of all that information about themselves that
would give them some bargaining advantages or disadvantages.
The original position, then, in order to create
contractual conditions appropriate for a society of free and equal persons,
places, through the device of the veil of ignorance, all persons on the same
footing, so that no one will be able to choose principles that favour her
particular interests. The assumption is that «the fairness of the circumstances
under which agreement is reached transfers to the principles of justice agreed
to».(43)
This is what yields the name “justice as fairness.” The idea is to «set up a
fair procedure so that any principles agreed to will be just». (44)
However, if the veil of ignorance ensures fair
procedural conditions, it does not yet enable us to see which principles would
be chosen from the standpoint of the original position. In order to arrive at
these principles we need some assumptions about the motivations of the
contractual parties. We need to turn from what the parties must ignore in order
to enter the initial position of fairness, to what they are allowed – and,
indeed, need – to know in order to be able to make any choice at all.
If the veil of ignorance represents the negative side
of the liberal conception of the good, namely the idea that a just society
should not base its collective decisions on any particular comprehensive
conception of the good that is not unanimously endorsed by all its members, the
assumptions about the motivations of the parties to the original position
represent the positive side of the liberal good, namely the sphere of content
of citizens’ conceptions of the good life that is considered compatible with an
equal freedom of every citizen to pursue her own chosen or preferred way of
life. Rawls maintains that, «since these assumptions must not jeopardize the
prior place of the concept of right, the theory of good used in arguing for the
principles of justice is restricted to the bare essentials». (45)
This theory of the good restricted to the bare
essentials Rawls calls the “thin theory.” With this expression he intends to
draw attention to the fact that the difference between the liberal conception
of the good, as it is contained in the principle of the priority of the right
over the good, and other conceptions of the good is a matter of extension: in
fact, a matter of freedom and equality. The more a conception is extended –
“comprehensive” – the more it imposes restraints on people’s choices. The
liberal ideal is to reduce the restraints on people’s ways of life to the
minimum, the minimum not being, though, the absence of any conception of the
good. «Again, some view of goodness is used in defining justice as fairness». (46) The limits of the minimum are traced by what Rawls
calls “primary goods”, those things that are «necessary as social conditions
and all-purpose means to enable human beings to realize and exercise their
moral powers and to pursue their final ends (assumed to lie within certain
limits)». (47)
The two moral powers are «the capacity to understand,
to apply and to act from the principles of justice», and «the capacity to form,
revise, and rationally to pursue a conception of the good». (48) The latter corresponds to our sense of freedom and
yields the virtue of rationality, of rationally pursuing a plan of life; the
former corresponds to our sense of equality and yields the virtue of
reasonableness, of respecting our fellow citizens’ autonomy by committing
ourselves to the collective search for reasonable agreement and abiding by the
agreed principles and rules. By endowing the parties in the original position
with the capacity of being rational and reasonable we endow them with the
sufficient and necessary motivation to derive the principles of justice for the
basic structure of a society of free and equal citizens cooperating under fair
conditions. In order to see which principles the parties would choose we now
only need to solve a problem of rational choice: we have to find out, in the
light of the restrictions on their knowledge and on their motivations, what is
the rational choice of principles of justice regulating their main
institutions’ assignment of rights and duties and the distribution of the
resources coming from social cooperation, i.e. the choice that will best
guarantee and promote their self-interest.
To
sum up the situation of the parties in the original position: they do not know
their place in society – their social status, their wealth and income; nor do
they know their fortune in the distribution of natural assets – their sex,
race, strengths and physical abilities; they are also ignorant of their
comprehensive doctrines – their philosophical, religious and moral conceptions
– and their psychological setting – their natural propensities and interests.
They also do not know the probability of belonging to one or another category,
so that any propensity to take some risks to secure higher expectations will be
curbed, and they will instead follow a “maximin” approach which will make them
rank alternatives by their worst possible outcomes, choosing the one whose
worst outcome is superior to the worst outcome of the others. What they know,
though, is that they hold some particular conception of the good life to the
pursuit of which they will direct their energies and resources (even if they do
not know which), and they know that they are capable of abiding by the dictates
of reasonableness. Assuming these facts, according to Rawls, we can be
confident that everyone in the original position will choose principles of
justice that, first of all, would guarantee an equal distribution of certain
basic rights and liberties (freedom of thought and of conscience, freedom of
movement and occupation, etc.) and of a certain minimum standard of income and
wealth to everyone, as necessary conditions freely to form, revise and
rationally pursue their own conception of the good life and to ensure equal
respect to everyone’s point of view and way of life. Secondly, they will choose
principles that would ensure an equal distribution of the benefits coming from
social cooperation – unless doing otherwise will be to the advantage of
everyone, or at least to the more disadvantaged members of society. Thus, the
two principles of justice as fairness:
I. 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.
II. Social and economic inequalities are to be
arranged so that they are both:
(a) to the
greatest benefit of the least advantaged; and
(b) attached to positions and offices open to all
under conditions of fair equality of opportunity. (49)
Each principle controls one of the two functions of
justice which the governing institutions are in charge of; each gives
expression to one of the two basic moral intuitions of justice as fairness, and
is represented in the construction of the original position by one of the two
sets of restraining conditions conveyed by the veil of ignorance; and each one
stands in critical opposition to one of the two principal defects of the main
current alternative conceptions of justice.
The first principle controls the aspect of justice
concerned with the assignment of fundamental rights and duties to citizens and
gives expression to the moral conviction, behind the claim of the priority of
the right over the good, that every person should be left free to pursue her
own conception of the good as long as it does not interfere with the
realization of the others’ plans of life, which is represented in the original
position by the assumption of the parties’ ignorance of their own conceptions
of the good. The conceptions of justice it opposes are the perfectionist ones,
as exemplified by classical utilitarianism.
According
to Rawls, classical utilitarianism, as with any perfectionist doctrine, fails
to recognize the priority of the right over the good. In particular it fails to
abide by Kant’s precept always to treat human beings as ends in themselves and
never as means. It fails to give an adequate account of the commonsense
conviction that “each person possesses an inviolability founded on justice that
even the welfare state as a whole cannot override”. Justice as fairness instead
recognizes that
justice denies that the loss of freedom for some is
made right by the 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. (50)
For this reason the first principle has to be given
precedence over the second.
In particular, Rawls believes that utilitarianism is
led to ignore the primacy of the basic rights of citizens because, by
incorrectly thinking that «as it is rational for one man to maximize the
fulfilment of his system of desires, it is right for a society to maximize the
net balance of satisfaction taken over all of its members», it is led «to adopt
for society as a whole the principle of rational choice for one man», (51) thus failing to recognize the essential aspect of
human existence underlying the primacy of justice, «the plurality and
distinctiveness of individuals».
The second principle of justice, which Rawls calls
“the principle of difference”, controls instead the aspect of justice concerned
with the «appropriate distribution of the benefits and burdens of social
cooperation», and gives expression to the other liberal moral intuition
represented by the other constraint of the veil of ignorance, namely, that we
should try to neutralize the inequalities in the initial distribution of
natural and social assets when deliberating about justice. The conceptions of
justice it opposes are those that, although usually belonging to the social
contract family which Rawls praises, allow for factors due to natural
contingencies and to social chance to influence the choice of principles for
the correct distribution of social and economic benefits. Rawls’s targets here
are two particular systems of justice. One is based on the principle of
“natural liberty”, the other on the principle of “liberal equality.”
The system of natural liberty, as it has been endorsed
by intellectuals in the liberal tradition stemming from Hobbes, Locke, Bentham
and Smith, like libertarian liberals such as Hayek and Nozick, regards as just
any distribution resulting from a social organization based on free market
economy and observing a formal (legal) equality of opportunity. For Rawls,
«intuitively, the most obvious injustice of the system of natural liberty is
that it permits distributive shares to be improperly influenced by these
factors so arbitrary from a moral point of view». (52) In fact, the distributive shares sanctioned by the
principle of natural liberty tend to be a mere reproduction of the initial
distribution of natural talents and social fortune, and thus they will be just
only in so far as the initial distribution was just; which, as a matter of
fact, is never the case.
The system of liberal equality tries to remedy to
these injustices by aiming at a “fair meritocracy.” The idea is to make the
principle of equality of opportunity less formal by correcting the social
inequalities between persons, so that those similarly talented may enjoy real
equal opportunities. To Rawls the principle of liberal equality «intuitively
still appears defective», too close to the libertarian predicament, because,
«even if it works to perfection in eliminating the influence of social
contingencies, it still permits the distribution of wealth and income to be
determined by the natural distribution of abilities and talents», and «there is
no more reason to permit the distribution of income and wealth to be settled by
the distribution of natural assets than by historical and social fortune». (53) Both factors are equally arbitrary from a moral
point of view.
In order to obtain an adequate grasp of this point of
view, justice as fairness postulates that the parties in the original situation
do not know their social position and their fortune in the natural lottery, so
that the principles of justice to which they will give their allegiance will give
expression to the intuitive idea of democratic equality as it is expressed by
the principle of difference, «that the social order is not to establish and
secure the more attractive prospects of those better off unless doing so is to
the advantage of those less fortunate». (54) Only in this way will the governing institutions be
able adequately to respect citizens’ freedom and equality and thus be
considered legitimated, for no one could be reasonably asked to assent to terms
of social cooperation that would disadvantage her more than other viable and
reasonable alternatives.
3.2. The
original position and anti-foundationalism
The epistemological criticism of Rawls’s construction
of the original position points to the fact that the ignorance requirements of
the original conditions have been appositely tailored in order to be able to
derive the principles that Rawls was looking for from the outset. This
criticism plays on the consideration that a circular justification is not a
justification at all, and expresses the conviction that Rawls presented the
idea of the original position as a heuristic procedure that could provide a
rational foundation for his two principles of justice. Alas, the original
position is not a device of justification at all, and Rawls does not intend to
provide a foundational argument for his proposed principles of justice, as
opposed to an ethnocentric one.
Rawls is well aware that the conditions of the
original position have been tailored ad
hoc in order to obtain the two principles of justice as fairness. In A Theory of Justice, he admits that
«there are many possible interpretations of the initial situation» and that
«justice as fairness is but one of these»; (55) and he explicitly says that he wants «to define the
original position so that we get the desired solution». (56) But this circularity does not bother him, because,
as he has made repeatedly clear, the original position is not to be taken as a
device of justification, but «is to be seen as a device of representation». (57) It must be seen as a device by means of which he can
represent his liberal moral point of view and specify the considerations that
he believes must be taken into account, and those that must not, for deciding
the principles of justice for a society of free and equal citizens. As he says,
«as a device of representation the idea of the original position serves as a
means of public reflection and self-clarification. It helps us work out what we
now think, once we are able to take a clear and uncluttered view of what
justice requires when society is conceived as a scheme of cooperation between
free and equal persons». (58)
That is, it helps us
[to model] what we regard – here and now – as fair conditions under which the representatives
of free and equal citizens are to specify the terms of social cooperation in
the case of the basic structure of society; and since it also models what, for
this case, we regard as acceptable restrictions on reasons available to the
parties for favouring one political conception of justice over another, the
conception of justice the parties would adopt identifies the conception of
justice that we regard – here and now –
as fair and supported by the best reasons. (59)
Rawls is not trying, then, to use the original
position as a foundational device for liberal ethics and politics. He «[is] not
trying to find a conception of justice suitable for all societies, regardless
of their particular social or historical circumstances». Rather, coherently
with the holistic and ethnocentric conception of justification and the related
conception of the aim of political philosophy that we have presented above, he
is just trying «to settle a fundamental disagreement over the just form of
basic institutions within a
democratic society under modern conditions», (60) by showing not that his conception of justice is
«true to an order antecedent to and given to us, but its congruence with our
deeper understanding of ourselves and our aspirations, and our realization
that, given our history and the traditions embedded in our public life, it is
the most reasonable doctrine for us». (61) «The real
task», he says,
is to discover and formulate the deeper bases of
agreement which one hopes are embedded in common sense, or even to originate and
fashion starting points for common understanding by expressing in a new form
the convictions found in the historical tradition by connecting them with a
wide range of people’s considerations: those which stand up to critical
reflection. (62)
And this task, he again makes clear, in a way
reminiscent of the pragmatist conception of objectivity, «is not primarily an
epistemological problem»:
The search for reasonable grounds for reaching
agreement rooted in our conception of ourselves and in our relation to society
replaces the search for moral truth interpreted as fixed by prior and
independent order of object and relations. (63)
The original position serves as a means for
accomplishing this task: «[it] serves as a mediating idea by which our
considered convictions of all levels of generality are brought to bear on one
another so as to achieve greater mutual agreement and self-understanding». (64) And, of course, «we have to concede that as
established beliefs [and thus considered convictions] change, it is possible
that the principles of justice which it seems rational to choose may likewise
change». (65)
There is no attempt, pace Sandel, at
escaping tradition to reach the Archimedean point, no attempt at
«distinguishing a standard of appraisal from the thing being assessed» (66) in order to ground the cherished liberal practices sub specie aeternitatis.
Even if Rawls uses the expression «Archimedean point» (67) to describe the standpoint of the original position,
even if he says that «to see our place in society from the perspective of this
position is to see it sub specie
aeternitatis», we do not have to forget that he specifies that
the perspective of eternity is not a perspective from
a certain place beyond the world, nor the point of view of a transcendental
being; rather it is a certain form of
thought and feeling that rational persons can adopt within the world.
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. (68)
These are the concluding sentences of A Theory of Justice, and they confirm
the central point I have been making in this paper, that is, that Rawls’s
conception of justice, and thus the device of the original position, elaborates
just one moral conception amongst other different and conflicting moral
conceptions. Indeed, as Rawls remarks, commenting on the proposal to include
explicit moral motivations in the description of the parties to the initial
situation, «it is a mistake to object that the notion of the original agreement
would no longer be ethically neutral. For, this notion already includes moral
features and must do so, for example, the formal conditions on principles and
the veil of ignorance».(69)
In particular, those concluding sentences make clear that the objectivity justice as fairness
is after, the only objectivity with which, according to anti-foundationalism,
liberalism should be content, is objectivity intended as fairness, the objectivity we may obtain if we try to place ourselves
in the original position; that is, if we try to adopt that certain form of
thought and feeling, that certain moral sensibility, which does not regard the
facts that we occupy a particular social position, that we hold a particular
comprehensive doctrine and a particular conception of the good, and that we are
endowed with particular natural characteristics and abilities, as constituting
morally and politically appropriate reasons to be taken in consideration when
deliberating on matters of justice – e.g., on the appropriate assignment of
rights, duties and distributive shares. This is a moral objectivity, not an
epistemological one, and saying this is the same as saying that the original
position has not been envisaged as a justificatory device but as a normative
one.
The belief that Rawls, by proposing the idea of the
original position, was trying to provide a definitive argument for a certain
conception of justice has been thought to be supported not only by his
reference – arguably inopportune but in any case innocuous once contextualized
– to the Archimedean point, but also by the apparent rationalist aspect of the
idea of the original position. This aspect is taken to be manifested in the
fact that the choice of principles of justice by the parties to the original
position is presented as an instance of a solution to a problem of rational
decision; and to be further confirmed by Rawls’s assertion that «the theory of
justice is a part, perhaps the most important part, of the theory of rational
choice», following the seemingly even more compromising claim that «the merit
of a contract terminology is that it conveys the idea that the principles of
justice may be conceived as principles that would be chosen by rational
persons, and that in this way conceptions of justice may be explained and
justified». (70)
However, even if we admit that this is a somewhat lax
way of speaking for an anti-foundationalist, we should not forget that Rawls is
talking from the standpoint of a conception of justification according to which
«to justify a conception of justice to someone is to give him a proof of its
principles from premises that we both accept, [these principles having in turn
consequences that match our considered judgements]»; that is, a conception of
justification according to which «proofs become justification [only] once the
starting points are mutually recognized». (71) This means that Rawls is well aware that the
rational choice of the parties to the original position will sound rational,
and thus an argument for the chosen principles of justice, only to those who
share the same liberal form of thought and feeling as the parties of his device
of representation. As he says,
the essential agreement in judgments of justice arises
not from recognition of a prior and independent moral order, but from
everyone’s affirmation of the same authoritative social perspective. (72)
In other words, Rawls is aware that, since in the real
world we face the choice of principles of justice with full knowledge of our
natural talents, our conceptual and moral setting, and our social position, it
will not be irrational per se – as opposed to immoral – for someone to choose
principles which would be to her advantage, even if they will make some other
citizens worse off. He is aware that for real people to choose the liberal
principles he proposes, to accept to enter into the conditions of the original
position, they must already share the same moral convictions represented by the
veil of ignorance, that is, that people should be left as free to pursue their
own conceptions of the good as is consistent with an equal freedom for
everyone, and they should be treated as equal without natural and social
fortune influencing the distribution of the benefits of social cooperation.
Rawls is aware that his two principles of justice will be accepted only by reasonable people, people who have
agreed to abide by the dictates of freedom and equality, and thus by the
collectively endorsed terms of social cooperation.
But, as we know, Rawls has no thought of deriving the
reasonable from the rational. He believes that «any plausible derivation must
situate rational agents in circumstances in which they are subject to certain
appropriate conditions and these conditions will express the reasonable». (73) And this is exactly what he does: ethnocentrically
conceiving of reasonable conditions as the conditions of a pluralist and
democratic society committed to the respect of everyone’s freedom and equality,
(74)
and trying to give adequate expression to them by looking for «a description of
the initial situation that yields principles which match our considered
judgments duly pruned and adjusted», incessantly going back and forth in the
holistic swing of the reflective equilibrium, «sometimes altering the
conditions of the contractual circumstances, at others withdrawing our
judgments and conforming them to the principles».(75) This is the only possible way of proceeding, since
«there is no set of conditions or first principles that can be plausibly
claimed to be necessary or definitive of morality and thereby especially suited
to carry the burden of justification». (76) This burden can be carried only by the ethnocentric,
conversational and holistic procedure aiming at «the mutual support of many
considerations, of everything fitting together into a coherent view».
Looking back at his initial formulation of the
derivation of the principles of justice from the construction of the original
position Rawls admits that it would have been better not to have said that the
theory of justice is a part of the theory of rational decision. «What should
have been said», he now clarifies,
is that the account of the parties, and of their
reasoning, uses the theory of rational decision, though only in an intuitive
way. This theory is itself part of a political conception of justice, one that
tries to give an account of reasonable principles of justice. There is no
thought of deriving those principles from the concept of rationality as the
sole normative concept.
Yet he still believes that «the text of Theory as a whole supports this
interpretation». (77) I
have been trying to show that this is indeed the case.
In his later works, however, Rawls prefers to drop any
talk of theory of rational decision and to rely less heavily on the
construction of the original position. Indeed, he seems to have realized that
as a device of representation it lent itself to too many misreadings and that
it would be better to replace it with a more direct and concrete way of
expressing the moral and political intuitions that he tried to systematize by
its means. The normative concept of “public reason”, which I have already
introduced as «the reason of equal citizens who, as a collective body, exercise
a final political and coercive power over another in enacting laws and in
amending their constitution», (78)
fulfils this substitutive function.
Built into the concept of “public reason” is the same
moral stance we found at the basis of that certain
form of thought and feeling that the original position was intended to
convey. Purity of heart, in the same
sense of fairness, we could now say, ‘would be to see clearly and to act with
grace and self-command in accordance with the dictates of public reason.’
In fact, the idea of public reason, just as with the epistemic and motivational
constraints on the parties in the original position, expresses the condition of
reasonableness necessary for reaching a fair agreement on the principles of
justice between free and equal persons. It expresses the ideal of democratic
citizenship, «the ideal of democratic citizens trying to conduct their
political affairs on terms supported by public values that we might reasonably
expect others to endorse». (79)
Indeed, the core of public reason is the principle of reciprocity, according to
which
Our exercise of power is proper only when we sincerely
believe that the reasons we offer for our political action may reasonably be
accepted by other citizens as a justification of those actions. (80)
The idea of public reason thus answers the problem of
political legitimacy for a liberal society in exactly the same egalitarian
spirit of the construction of the original position. Political decisions are
collectively binding, i.e. legitimated, when they are justifiable to all
citizens bound by them, regarded as free and equal persons. Both the idea of
the original position and that of public reason yield the same liberal principle
of political legitimacy.
There is therefore no substantial difference between
the central idea of Rawls’s original formulation of justice as fairness and
that central to his later formulation. The change reflects Rawls’s willingness
to obviate any misunderstanding about the epistemological intent behind the
elaboration of his conception of justice. This does not aim at giving a
rational foundation to liberal ethics and politics; it just wants to express a
particular stance in the debate within liberalism over the best way to realize
in our pluralist society the respect for everyone’s freedom and equality.
Public reason, with its explicit moral and political injunctions incorporated
into it, makes the ethnocentric endorsement of this moral and political stance
more perspicuous and less artificial than the idea of the original position.
3.3. The
original position and democratic deliberation
However, by elaborating the concept of public reason
Rawls not only wanted to state more clearly his distance from foundational
philosophy, he also wanted to answer the other kind of criticism which I wish
to consider, that concerned with the political significance of the original
position. This criticism focuses on the form that political deliberation on the
principles of justice takes when viewed through the device of the original
position. Indeed, so the criticism goes, in justice as fairness properly
speaking there is no political deliberation at all, if by this term we intend
what we normally intend (at least ideally) for it in the everyday practice of
politics, namely, the collective give-and-take of moral arguments on matters of
controversial political and moral issues. For example, Amy Gutmann and Dennis
Thompson observe that, even if Rawls «argues cogently for the values of
citizenship and participation in politics»,
When [he] considers how to make the principles of
justice more specific, he does not propose that citizens or their
representatives discuss moral disagreement about these principles in public forums.
Although his theory of constitutional democracy leaves room for such
discussion, it emphasizes instead a solitary process of reflection, a kind of
private deliberation. He suggests that each of us alone perform an intricate
thought experiment in which a veil of ignorance obscures our own personal
interests, including our own conception of the good life, and compels us to
judge on a more impersonal basis. (81)
The same point has been made by Brian Barry who
argues, following Hart’s statement that within Rawls’s system we are concerned
with what «no rational person bargaining with others on a footing of equality
could agree to», that
Rawls’s original position does not have any room for
bargaining with others – on a footing of equality or any other footing. There
can be no bargaining among people who, even though they actually have
conflicting ends, do not know what those ends are. The whole idea of bargaining
thus becomes inapplicable and the choice of principles reduces to a choice by
anyone in the original position picked at random … We might as well talk of
computers having the same program and fed the same input reaching an agreement. (82)
Barry’s conclusion is that Rawls is in this way «open
to precisely the charges that he levels against ‘impartial spectator’ theories
of ethics: he ‘does not take seriously the plurality or distinctiveness of
individuals’ nor does he ‘recognize as the basis of justice that to which men
would consent.’ For it is perfectly open to someone to say ‘I accept that if I
were making the kind of decision stipulated in the original position I would
have chosen x; but that has no relevance to what I can reasonably be
asked to agree here and now’». (83) Therefore his theory of justice «fails to
accommodate [his] fundamental egalitarian idea that principles of justice have
to be acceptable above all to those who stand to do least well under them». (84)
Similarly, Gutmann and Thompson conclude that, by
placing all the weight of the derivation of his principles of justice on the
solitary deliberation of the original position, Rawls compromises his initial
egalitarian intentions, because «citizens cannot maintain a stable commitment
to principles of justice…without extensive deliberation in public forums about
the meaning of constitutional principles and their implications for specific
decisions of government». (85) For
it is only «by making democracy more deliberative [that] citizens stand a
better chance of resolving some of their moral disagreements, and living with
those that will inevitably persist, on terms that all can accept». (86)
Although it is undeniably true that within the
original position no actual process of collective deliberation takes place, I
believe that these criticisms miss the point behind Rawls’s construction of the
initial situation. Like the previously considered charge of circularity, these
criticisms “from deliberation” fail to appreciate that the original position is
only a device of representation. In particular, these criticisms forget that
the original position never pretended to be a description of how political
deliberation is, or should be, effectively conducted. In fact, Rawls never
fails to remind us that «the original position is a purely hypothetical
situation. Nothing resembling it needs ever to take place»; (87) that the contract between people placed behind the
veil of ignorance «must be regarded as both hypothetical and nonhistorical»
since «we do not suppose that the agreement has ever [been], or indeed ever
could actually be entered into». (88)
The construction of the original position serves only
as a figurative way to convey the moral commitment that Rawls believes
citizenship in a pluralist, free and egalitarian society demands. It is a
thought experiment by means of which Rawls wants to communicate to us the moral
and political injunction that we should regard our natural and social assets,
our interests and our conceptions of the good, as morally and politically
inadequate considerations when deciding on matters of justice and of common
concern. It is «an expository device which sums up the meaning of [the
constraints that we are prepared to regard as limits on fair terms of social
cooperation] and helps us to extract their consequences». (89) And, as Barry himself notes, «there is nothing wrong
with the idea that we can throw light on what is fair by asking questions about
what we might think in hypothetical situations». (90)
It seems, then, that Barry shares to some degree the
same «incapacity to appreciate the force of hypotheticals» that he himself
imputes to Rawls’s critics. Like Henry Phelps Brown, whom Barry rightly mocks
for writing that «it is hard to see why an engagement that appears rational,
and binding, to a person of one kind, allowed very limited information should
continue to be acceptable or to be binding upon that person when he and all
others like him have been greatly changed and are altogether better informed», (91) thus not seeing that for Rawls «the only point of
the original position» was to make demands on real people, he himself seems to
be «apparently incapable of recognizing that Rawls, [through the hypothetical
device of the original position] invites people to put themselves in others’
shoes in order to concentrate their minds on what they should think is fair
while wearing their own shoes». (92)
It is therefore incorrect to argue, as Barry, Gutmann
and Thompson do, from the solitary nature of political deliberation within the
framework of the original position the absence from Rawls’s conception of
justice of any commitment towards spaces of collective deliberation over
matters of common interest, and thus his blindness towards a necessary
condition for political legitimacy in a society free and equal persons. This is
not to deny that A Theory of Justice fails
adequately to stress the importance of – and indeed gives little attention to –
the concrete collective deliberative practices of public decision-making in a
pluralist society. In fact, Rawls introduces the concept of public reason
precisely in order to give to his conception of justice a worldlier and more
practice-oriented moral and political outlook, and to give within justice as
fairness a more central space to moments of collective deliberation. Yet, we
cannot ignore that already built into the device of the original position was
the moral and political injunction central to the later development of theories
of deliberative democracy such as those advanced by Gutmann and Thompson and by
Barry themselves. This is the injunction that Rawls, in Political Liberalism, placed at the basis of the idea of public
reason in the form of the principle of reciprocity: namely, the injunction that
citizens,
as reasonable and rational, and knowing that they
affirm a diversity of reasonable religious and philosophical doctrines, should
be ready to explain the basis of their actions to one another in terms each
could reasonably expect that others might endorse as consistent with their
freedom and equality. (93)
As Gutmann and Thomson explain, «this disposition to
seek mutually justifiable reasons expresses the core of the process of
deliberation». And just as for Rawls, for them too the main motivation behind
this disposition is the quest for political legitimacy. «Deliberative
democracy», they say, «asks citizens and officials to justify public policy by
giving reasons that can be accepted by those who are bound by it». (94)
Joshua Cohen, another key figure in the development of
deliberative conceptions of democracy, expresses the key tenet of his position
in similar terms to those used by Rawls. «The conception of [political]
justification that provides the core of the ideal of deliberative democracy»,
he writes, «can be captured by an ideal procedure of political deliberation».In
such a procedure participants regard one another as equals; they aim to defend
and criticize institutions and programs in terms of considerations that others
have reason to accept, given the fact of reasonable pluralism and the
assumption that those others are reasonable; and they are prepared to cooperate
in accordance with the results of such discussion, treating the results as
authoritative. (95) In
A Theory of Justice this disposition
of reciprocity was contained in the idea that in a well-ordered liberal
society, a society regulated by a public liberal conception of justice,
the members are, and view themselves as, free and
equal moral persons … they each have, and view themselves as having,
fundamental aims and interests in the name of which they think it legitimate to
make claims on one another; and they each have, and view themselves as having,
a right to equal respect and consideration in determining the principles by
which the basic structures of their society is to be governed.
Indeed, the original position, as Rawls clarifies
immediately afterwards, «is specified to embody the appropriate reciprocity and
equality between persons so conceived». (96) Indeed, the injunction of reciprocity is contained
in the fundamental idea behind the construction of the contractual
circumstances of the original position. This is the very same idea that Barry
places at the basis of his conception of “justice as impartiality”, i.e. «that
just rules are those that can be freely endorsed by people on a footing of
equality». (97)
I hence believe that we can confidently conclude that
both the role of reciprocity as the guiding principle of public discussion and
the role of fair and free public discussion as the guiding principle of
political justification have always been central elements of Rawls’s justice as
fairness. Although we can certainly agree with Barry that the idea of the
original position does not do any essential work in the construction of justice
as fairness – as Rawls himself has acknowledged, after all, by replacing
“public reason” for “the original position” as his central idea – and that what
Rawls is really asking is after all, in a way similar to Thomas Scanlon’s
contractualist construction, (98) «whether
or not a principle could reasonably be rejected by someone aware of its impact
on him». (99)
3.4. The
original position and self-reflexive deliberation
By showing the anti-foundationalist and deliberative
character of Rawls’s justice as fairness I thus think we can confidently
attribute to it the commitment to the value which I regard as fundamental for
the fuller respect of people’s freedom and equality, i.e. that of leaving the
established interpretation and application of the requirements of justice open
to public discussion and revision. Jeremy Waldron, though, has questioned this
point, maintaining that Rawls fails to draw from his ‘burdens-of-judgment’
argument for a reasonable plurality of comprehensive conceptions of the good
the conclusion that «for the same reason, in a well-ordered society, reasonable
people might be expected to disagree fundamentally about the basic terms and
principles of their association», (100) thereby failing «to deal with justice-pluralism and
disagreement about rights». (101)
Waldron’s argument is based on what I believe to be an
incorrect reading of Rawls’s injunction to follow the demands of public reason
when dealing with matters of justice. He takes it as presupposing that an
agreement on the fundamentals of justice must be already realized in our
societies when we engage in public discussions, whereas I believe it must be
taken as a moral injunction to strive towards reaching such an agreement. The
centrality played in Rawls’s conception of public reason by the normative
principle of reciprocity for me clearly shows that Rawls takes public reason as
a normative ideal, as a moral telos
which persons holding different and conflicting conception of the good and of
the right should strive for in order to bring our societies nearer to the
liberal ideal of a well-ordered society of free and equal persons. This can be
clearly evinced, for instance, by Rawls’s assertion that
the limits of public reason are not, clearly, the
limits of law or statute but the limits we honor when we honor an ideal: the
ideal of democratic citizens trying to conduct their political affairs on terms
supported by public values that we might reasonable expect others to endorse. (102)
However, even leaving aside the correct interpretation
of Rawls’s conception of public reason, I do not see how, in the light of the
many passages in which Rawls acknowledges the plurality of reasonable
conceptions of justice and of fundamental rights, it can be plausibly believed
that Rawls overlooks the fact that «pluralism of comprehensive religious,
philosophical, and moral doctrines is not the only pluralism with which we have
to deal in a modern democratic society». (103) For example, when we dealt with the
charge that the conditions of the original position have been tailored ad hoc in view of the two principles of
justice, we saw that Rawls, already in A
Theory of Justice, had no problem in admitting that «there are many
possible interpretations of the initial situation» and that «justice as
fairness is but one of these». We also saw that, in the same book, coherent
with his ethnocentric and holistic conception of justification as consisting of
a reflective equilibrium between our theorizations and our established beliefs,
he maintained that «we have to concede that as established beliefs change, it
is possible that the principles of justice which it seems rational to choose
may likewise change».
In Political
Liberalism, the work on which Waldron bases his argument, Rawls is even
more explicit on the plurality of reasonable conceptions of justice. He states,
for instance: «The view I have called justice as fairness is but one example of
a liberal political conception; its specific content is not definitive of such
a view». (104) Furthermore, and more
significantly, he clarifies his conception of public reason by claiming that
It is crucial that public reason is not specified by
any one political conception of justice, certainly not by justice as fairness
alone. Rather, its content – the principles, ideals, and standards that may be
applied to – are those of a family of reasonable political conceptions of
justice and this family changes over time. These political conceptions are not
of course compatible and they may be revised as a result of their debates with
one another. Social changes over generations also give rise to new groups with
different political problems…The content of public reason is not fixed any more
than it is defined by any one reasonable political conception. (105)
This passage, in which we can find stated both the
anti-foundationalist and deliberative character of justice as fairness, makes
particularly clear that Rawls wholly acknowledges the fact raised by such
criticisms as advanced by Waldron, but also Gray and Bellamy (106) for example, namely that specifications of basic
rights, liberties, and opportunities, assignments of a special priority to
these rights, liberties, and opportunities, and decisions of measures assuring
all citizens adequate well-purpose means to make effective use of their basic
liberties and opportunities «can be seen in different ways, so there are many
liberalisms». (107)
As we have already observed, Rawls’s intention was to
take a particular stance within the debate internal to liberalism. His has been
an attempt to systematize certain intuitions about the set of rights,
liberties, and principles regulating their relative priority, that can best
realize in pluralist societies the respect for people’s freedom and equality,
and thus legitimize governing institutions, without ever forgetting that his
represents only a particular interpretation of freedom, equality and political
legitimacy among other different but equally reasonable interpretations. I
think we can confidently say that Rawls’s justice as fairness does not aim, as
Gray believes, at being «insulated from conflict of value»; (108) at giving «a prescription for an universal regime» (109) based «on a rational consensus on the best way of
life». (110) It
does not aim at «the construction of the just society sub specie aeternitatis», (111) as Bellamy believes. There is no attempt, pace Sandel, at «distinguishing a
standard of appraisal from the thing being assessed» (112) in order to ground his favoured
principles of justice on the Archimedean point of view. Of the two horns of the
dilemma that the justification of principles of justice presents us with, the
Humean one which wants us to derive the principles «from the values or
conceptions of the good current in society», and the Kantian one which makes us
look for «a standard external to the values and interests prevailing in
societies», (113)
Rawls is happy, pace Sandel, to grasp
the former ethnocentric one.
Returning to Sandel’s criticism of Rawls with which I
started my reflections, I want to observe how the dilemma of justification on
which Sandel bases his charges is just a particular instance of the fundamental
dilemma of epistemology: either abandoning ourselves to an infinite regress of
justifying reasons or accepting instead the unavoidable circularity of
justification. This is not the place to formulate a viable anti-foundationalist
epistemology defending it from the charges of corrosive relativism. I just
limit myself here to observing that the fear of circularity is a typical
expression of the foundational conviction that if you do not have a neutral
ground upon which to place your cherished values and beliefs then you do not
have any valid reason at all to endorse them. Sandel shows that he shares this
fear and this conviction when, in presenting us with the dilemma arising from
the justification of principles of justice, he takes for granted that Rawls is,
in some way, trying to escape from it. In fact the conviction behind this
assumption is that to grasp the first, circular, option would condemn our
values and beliefs to arbitrariness as much as if we would grasp the second,
infinitely receding option. (114)
However, as I have shown, Rawls in formulating his
conception of justice is not trying to reach that Archimedean point which would
permit us to break the dilemma of epistemology, since, like
anti-foundationalist philosophers such as Richard Rorty and Hilary Putnam, he
does not think that that dilemma is a genuine one. He does not think that the
contingency of the bases on which our justifications stand is something we
should worry about; that to accept the contingency of our positions forces us
to embrace the corrosive conclusions of relativism. Rather, he endorses and
defends the values and practices of the liberal tradition, accepting at the
same time their metaphysical neutrality and immanency. In particular, with the
description of the original position he does not try to give them a
metaphysical back-up, but only to contribute to their clearer formulation. I am
therefore inclined to think that behind Sandel’s belief in the foundationalist
spirit of Rawls’s deontological liberalism there lies the foundationalist
assumption that if you are not able to give such an absolute backup to your
values and beliefs than you cannot claim their priority; from which follows the
conviction that, if Rawls is willing to claim the priority of justice as
fairness over other conceptions of the good and of the right, he must be trying
to secure that priority on absolute foundations.
4. The Law of Peoples: a multicultural path to
cosmopolitanism?
Rawls in The Law
of Peoples (115) turns
to apply his liberal conception of justice «to the principles and norms of
international law and practice», (116) trying to «work out the ideals and principles of the
foreign policy of a reasonably just liberal people» (117) taking into account the historical fact of the
diversity of cultures and traditions of thought among the different peoples of
the world. Rawls’s preoccupation is «to specify how far liberal peoples are to
tolerate nonliberal peoples», (118) starting from the consideration that
If all societies were required to be liberal, then the
idea of political liberalism would fail to express due toleration for other
acceptable ways (if such there are, as I assume) of ordering society. We
recognize that a liberal society is to respect its citizens’ comprehensive
doctrines – religious, philosophical, and moral – provided that these doctrines
are pursued in ways compatible with a reasonable political conception of
justice and its public reason. Similarly, we say that, provided a nonliberal
society’s basic institutions meet certain specified conditions of political
right and justice and lead its people to honor reasonable and just law for the
Society of Peoples, a liberal people is to tolerate and accept that society. (119)
Rawls calls these non-liberal societies complying with
basic requirement of liberal justice and with international laws, «in the
absence of a better term», «decent peoples».
Just as with the normative idea of reasonableness, he
does not believe there could be a precise definition of decency from which we
could deduce a clear-cut set of criteria. Furthermore, just as he believes in
there being different kinds of liberal peoples interpreting the notion of
reasonableness in different ways, he believes that there may be different kinds
of decent peoples. Thus he regards the kind of decent people that he takes into
consideration as one among many possible ones. The one kind which, in his usual
pragmatist fashion, conforms to the way he thinks “decency” is used within a
liberal democratic culture. (120)
What then are the basic criteria of justice a people should meet in order to be
considered decent?
Without going into the details of his definition of
‘decency’ Rawls believes that decent peoples are those non-aggressive societies
that honour the laws of peace and respect the political and social order of
other societies, that secure human rights for all their members and in which
their system of law and their public servants follow a common good idea of
justice that takes into account the fundamental interests of everyone in
society. (121)
Decent peoples are also characterized by associationist social structures and
by what Rawls calls a “decent consultation hierarchy.” That is, as he puts it,
«the members of these societies are viewed in public life as members of
different groups, and each group is represented in the legal system by a body
in a decent consultation hierarchy». (122)
This hierarchy he regards as satisfying six guidelines:
First, all groups must be consulted. Second, each
member of a people must belong to a group. Third, each group must be
represented by a body that contains at least some of the group’s own members
who know and share the fundamental interests of the group. The first three
conditions ensure that the fundamental interests of all groups are consulted
and taken into account. Fourth, the body that makes the final decision must
weigh the views and claims of each of the bodies consulted, and, if called
upon, judges and other officials must explain and justify the rulers’ decision.
In the spirit of the procedure, consultation with each body may influence the
outcome. Fifth, the decision should be made according to a conception of the
special priorities [of the people] … Sixth and last – but highly important –
these special priorities must fit into an overall scheme of cooperation, and
the fair terms according to which the group’s cooperation is to be conducted
should be explicitly specified. (123)
Besides liberal and decent peoples Rawls see the world
inhabited by ‘outlaw states’, ‘burdened societies’, and ‘benevolent
absolutism.’ «While a benevolent absolutism does respect to a certain extent
human rights, it is not a well ordered society, since it does not give its
members a meaningful role in making political decisions». (124) That is, it lacks a decent consultation hierarchy.
Burdened societies are those societies that because of unfavourable historical,
social and economic circumstances are not able to achieve a well-ordered
regime, whether liberal or decent. Outlaw states are instead those regimes that
do not respect the human rights of their members and are aggressive towards
other peoples. (125)
According to Rawls the society of peoples guided by
liberal laws can and should comprise only liberal and decent peoples, that is,
those peoples that in their relations towards each other and towards their
members are guided by considerations of reasonableness and thus respect the
reciprocity principle. Indeed, the motivation behind Rawls’s choice of peoples
rather than states as the relevant political and moral subjects of
international relations is exactly that of «distinguishing [his] thinking from
that about political states as traditionally conceived, with their powers of
sovereignty included in the (positive) international law for the three
centuries after the Thirty Years’ War», namely «the right to go to war in
pursuit of state policies with the ends of politics given by a state’s rational
prudential interests…and a certain autonomy in dealing with its own people». (126) The main normative idea behind his formulation of
principles of liberal justice at the global level is precisely «to reformulate
the powers of sovereignty in light of a reasonable Law of Peoples and deny to
states the traditional rights to war and to unrestricted internal autonomy». (127) He thus focuses on peoples, conceived as persons
sharing the same reasonably just institutional, cultural and political-moral
environment, (128) as the subjects to place in the original position to
be acted out at the global level.
To conclude my sketchy presentation of Rawls’s
conception of the Law of Peoples let us look at the principles of international
justice that he believes liberal and decent peoples will come to agree once
when the veil of ignorance drops down. These, which he takes «from the history
and usages of international law and practices», are the following eight
«familiar and traditional principles»: (129)
1. Peoples are free and independent, and their freedom
and independence are to be respected by other peoples;
2. Peoples are to observe treaties and undertakings;
3. Peoples are equal and are parties to the agreements
that bind them;
4. Peoples are to observe a duty of non-intervention;
5. Peoples have the right of self-defense but no right
to instigate war for reasons other than self-defense;
6. Peoples are to honor human rights;
7. Peoples are to observe certain specified
restrictions in the conduct of war;
8.
Peoples have a duty to assist other peoples living under unfavourable
conditions that prevent their having a
just or decent political and social regime. (130)
Andrew Kuper in his Democracy Beyond Borders (131) has advanced a powerful argument against Rawls’s
application of his political conception of justice to the international sphere.
He believes that when he passes to the global level Rawls betrays the liberal
attribution of primary moral significance to individuals. The key mistake for
Kuper is Rawls’s choice to take peoples, rather than individuals, as the
politically relevant subjects to place in the global original position.
According to Kuper, Rawls’s commitment to constrain states’ sovereignty by
considerations of reasonableness and decency is not enough to protect
individuals’ «democratic rights and obligations». (132) Kuper, that is, thinks that decent peoples are not
decent enough, and that when Rawls comes to extend toleration from within
liberal communities to decent peoples «he seeks toleration of the wrong kind. Only an original position that includes all the
persons of the world as free and equal persons can express toleration in the
right way», (133)
namely, in the liberal way.
Kuper’s argument is that the tolerance manifested by
decent peoples towards the traditions, views and practices of their members is
not compatible with liberal tolerance. «Liberal tolerance expresses ethical neutrality, by remaining
impartial between particular moral conceptions of the good; for this very
reason, liberalism must reject any political
neutrality, that is, neutrality in respect of justification of coercion». (134) Kuper refers to Rawls’s own conception of toleration
in Political Liberalism according to
which a state should be neutral towards comprehensive views of the world.
It is the essence of a politically liberal regulatory
framework that it expresses toleration by not
incorporating any comprehensive doctrine in the principles of justice; to fail
to do so is not to extend but rather to eliminate liberal tolerance. In LP, on the other hand, he is mistaken.
Decent peoples are not ethically neutral, nor is a Law of People which
recognizes their comprehensive doctrine ethically neutral; thus at neither
stage is there any basis for saying that what is being expressed counts as
liberal toleration. (135)
Kuper’s preoccupation is that Rawls by trying to take
cultural pluralism seriously, stretching liberal toleration to decent
non-liberal people, «does so by not
taking seriously the reasonable pluralism of individual persons». (136) His reasonable Law of Peoples would thus
unreasonably have serious anti-liberal consequences, for «dissenting
individuals with liberal views would surely, it seems, dispute the idea that
accommodation of reasonable pluralism requires that their individual moral
claims be taken less seriously». (137) In
particular, the problem with decent societies is that their decent consultation
hierarchy «does not allow free speech», as «one could not really know what
[dissenting individuals] would think, since their views could well be sealed
off from view by the decent consultation hierarchy». (138) Sure, decent peoples, as Rawls has characterized
them, «ensure that fundamental interests of all groups are consulted and taken
into account», as well as guaranteeing space for dissent, public accountability
for its civil servants, and transparency of public procedures and
decision-making. Yet, Kuper argues, «citizens must argue within the conceptual
terms of the regime, and only through representative of the groups; this closes
off large domains and numerous types of discussion», the most serious being
that «it prevents proper critical discussion of how the rules of discussion
might be altered». (139)
Here we reach the core of the disagreement, and the
key issue to be dealt with in order to assess Rawls’s The Law of Peoples with regard to the liberal commitment to the
priority of individual autonomy as expressed in A Theory of Justice and Political
Liberalism. Are decent peoples decent enough? Are they to be tolerated by
liberals? Indeed these are the very questions that motivate The Law of Peoples, and we know that
Rawls’s moral intuitions tell us that we should answer them in the affirmative.
Yet, is he right? Is he not relaxing too much the liberal criteria of
toleration? Kuper believes so. In order to assess the normative import of
Rawls’s conception of international justice I believe we should try to grasp
the source of the disagreement. We should see, then, first all whether Kuper is
getting Rawls’s description of decent peoples wrong or right.
If he is mistaken about the
extent to which Rawls’s decent societies curb the social and political rights
of their members, and in particular of those who dissent from the ruling
conception of the good, then their normative disagreement would disappear and
Rawls’s intention would be that to accommodate within liberalism the importance
attached by individuals to their culture and community: to accommodate, that
is, cosmopolitanism with multiculturalism in the full respect of everyone’s
individual autonomy. If Kuper, though,
gets Rawls’s conception of decency right, then their disagreement would be a
question of a clash of different moral and political intuitions about how to be
liberal, and the further crucial question would raise: What is the motivational
basis of Rawls’s toleration of decent peoples, normative or pragmatic? In other
words, is Rawls really surrendering individuals’ rights to the normative
priority accorded to a culture, thereby abandoning a cosmopolitan ethos, or is he only raising a pragmatic
point concerning the concrete reality which liberal peoples have to face?
I
believe that Kuper gets Rawls both wrong and right, and that behind Rawls’s
extension of justice as fairness to the international arena there lie both
pragmatic considerations external to the normative core of liberalism and
normative considerations internal to the concept of liberal toleration. The
reason behind this ambivalence and ambiguity, I believe, is Rawls’s
anti-foundationalist awareness, as expressed in his conviction that there is not
a single correct form of liberalism, a single correct interpretation of liberal
reasonableness, toleration, freedom and equality and practices implementing
these values and principles. «Liberal societies», he reminds us,
may differ widely in many ways: for example some are
far more egalitarian than others. Yet these differences are tolerated in the
society of liberal peoples. Might not the institutions of some kinds of
hierarchical societies also be similarly tolerable? I believe this to be so. (140)
Here it is made manifest how at the centre of Rawls’s
preoccupation with liberal international toleration is his anti-foundationalist
awareness that it is not possible to define a
priori the normative and institutional limits of a liberal society, ‘to
deduce the reasonable from the rational’, and as a consequence, that also is
not possible to establish clear-cut limits between liberal and non-liberal
peoples. Surely, there are behaviours that are unquestionably unacceptable such
as those of outlaw regimes «that think a sufficient reason to engage in war is
that war advances, or might advance, the regime’s rational (not reasonable)
interests» (141) and that do not
respect those universal human rights whose «political (moral) force extends to
all societies» and that «are binding on all peoples and societies, including
outlaw states». (142) And Rawls is unshakable in his condemnation of these
states. «An outlaw state that violates these rights is to be condemned and in
grave cases may be subjected to forceful sanctions and even intervention», and
«this refusal to tolerate those states is a consequence of liberalism and
decency».
If the political conception of political liberalism is
sound, and if the steps we have taken in developing the Law of Peoples are also
sound, then liberal and decent peoples have the right, under the Law of
Peoples, not to tolerate outlaw states. Liberal and decent peoples have
extremely good reasons for their attitude. Outlaw states are aggressive and
dangerous; all peoples are safer and more secure if such states change, or are
forced to change, their ways. Otherwise, they deeply affect the international
climate of power and violence. (143)
Yet, in the grey area that divides liberal and
non-liberal peoples how can anyone possibly be so certain to recommend a
liberal foreign policy of political and economical sanctions or forcible
interventions, aimed at «gradually shap[ing] all not yet liberal societies in a
liberal direction, until eventually (in the ideal case) all societies are
liberal»? (144)
«This foreign policy simply assumes that only a liberal democratic people can
be acceptable». (145)
This is the question behind Rawls’s reflections on international justice: «how
do we know, before trying to work out a reasonable Law of Peoples, that
nonliberal societies are always, other things being equal, the proper object of
political sanctions?» (146)
Following the conviction that «denying respect to
other peoples and their members requires strong reasons to be justified», (147) Rawls then is only asking himself whether we should
withhold respect to decent peoples, given that, even though Kuper is right that
their «ideas of justice allow basic inequalities among their members (for
example, some members may not be granted equal liberty of conscience)» (148), still
Liberal peoples cannot say that decent peoples deny
human rights…; nor can liberal peoples say that decent peoples deny their
members the right to be consulted or a substantial political role in making
decision…Finally, decent peoples allow a right of dissent, and government and
judicial officials are required to give a respectful reply… Dissenters may not
be dismissed as simply incompetent or lacking in understanding. In this and
other ways, the common good conception of justice held by decent peoples may
gradually change over time, prodded by dissents of members of these peoples. (149)
Indeed, these hypothetical decent peoples as described
by Rawls seem far more decent than most of the real societies that describe
themselves as liberal democracies. Still, Rawls’s fundamental concern is the
following: even if decent peoples are not complying with liberal ideal principles and practices, are they
so bad as to be sanctioned? Kuper is
correct in stressing that the inequalities with regard to freedom of speech and
conscience «are serious restrictions on liberty which would horrify a liberal
at home, and it is not apparent that they should not be less horrifying when
perpetrated against people that are not part of one’s liberal society». He is
correct, of course, if he speaks of ideal liberal societies and peoples. And,
always staying on ideal ground – this has always been our ground of reflection
after all –, Kuper is also right when he continues the passage just quoted by
observing that the seriousness of these infringements to freedom and equality
«would certainly be apparent to parties in a single global original position
who, when the veil lifts, might find themselves in a non-liberal society». (150)
Yet again, are these infringements so serious as to sanction these peaceful societies that respect basic economic,
social and political rights, as opposed to constructively
relating with them? Rawls never affirms that considerations of reciprocal
respect, as he introduces them in the international original position, forbid
rational dialogue and debate between liberal and decent peoples, just as they
do not forbid rational confrontation between different liberal societies. Also
he never denies the moral and political superiority of the liberal commitment
to the normative primacy of individual autonomy. Rawls’s answer to our last
question can thus be found in the following passage:
Liberal peoples must try to encourage decent peoples
and not frustrate their vitality by coercively insisting that all societies be
liberal. Moreover, if a liberal constitutional democracy is, in fact, superior
to other forms of society, as I believe it to be, a liberal people should have
confidence in their convictions and suppose that a decent society, when offered
due respect by liberal peoples, may be more likely, over time, to recognize the
advantages of liberal institutions and take steps toward becoming more liberal
on its own. (151)
Kuper does take into account these pragmatic
considerations. He admits, in fact, that for Rawls «liberals are still able to
criticise non-liberal regimes, since acceptance of decent peoples in
international law by no means implies endorsement of their principles by
liberals more generally nor does it require that non-liberal regimes are viewed
as beyond reproach».(152) Yet, on the one hand, he believes that Rawls
practical recommendations on how to deal with decent people are too weak.
Liberals should not only engage in critical confrontation with non-liberal
peoples, they should also limit decent peoples’ engagement in a common global
legal structure by requiring reforms in the liberal direction, as it is
increasingly being invoked by the theory and practice of international law.
This global legal structure inspired by cosmopolitan values would in its turn
increase the efficacy of the soft efforts of reforming, from outside and
within, decent people towards a fully liberal democratic organisation of
society. (153) On the other hand, Kuper believes that giving
priority to pragmatic considerations in international relations over above
normative co-coherence with the dictates of liberalism ends up watering down
the ‘realistic utopian’ aspiration of a liberal conception of international
justice, in this way – reminding us of Kant’s observation – risking to
«eternalise the violation of right». (154)
Here, the issue thus shifts again to that of the
normative appraisal of the political moral decency of Rawlsian decent peoples,
and to what extent we are giving up individual liberties by extending respect
to them in the way advocated by Rawls. Kuper remains of the same conviction that,
as Bruce Ackerman puts is, «Rawls proposes a dangerous political compromise» in
choosing peoples rather than individual as the relevant moral subjects to place
in the global original position, because, «none of Rawls’ ‘well ordered’
hierarchies will be free of natives who are themselves inspired by liberal
ideas of liberty and equality». (155)
His concern is further compounded by Amartya Sen’s research on the
relationships between democracy and development showing that communities that
do not guarantee full democratic rights risk ending up infringing also the
fundamental human rights to life and well-being of their members. (156)
So, in conclusion, is Rawls’s choice of peoples as the
moral and political subjects of an international conception of justice
legitimate from a genuine liberal standpoint? I tend to share Kuper’s worries,
while understanding and appreciating both Rawls’s main normative intent behind
his Law of Peoples and the epistemological approach that accompanies it. I
believe that, given the fact of pluralism and the impossibility of deducing
liberal principles and practices from a
priori considerations of rationality, and thus the impossibility of drawing
a clear-cut line between liberal and decent non-liberal people, it is both a
wise pragmatic principle and part of the liberal commitment to freedom and
equality to maintain a relaxed – we could even say anti-foundationalist –
approach to toleration; reminding ourselves at the same time that relaxed
toleration does not in the slightest entail withdrawal from rational criticism.
At this point there is space for disagreement about the correct non-intrusive
ways to interact with decent peoples with a view to encouraging them to move
towards liberal democratic principles. Kuper believes there is more room for
manoeuvre than Rawls seem to believe, and he may be correct. However, the
disagreement on the normative ethos
of liberalism here intertwines with that over concrete policy recommendations
of action, which is a terrain on which Rawls is not walking, and we do not want
to walk either here. The point remains, though, that the relaxed attitude
towards toleration recommended by Rawls is crucial in order to release the
tensions between the universalistic aspirations of human rights and democratic
principles and cultural particularism, and thus for accommodating
cosmopolitanism with multiculturalism.
Yet Kuper’s worries, which are also reflected in his
more substantive and pro-active policy recommendations, are legitimate,
because, as he rightly reminds us, history has shown us that when priority is
given to communities vis-à-vis individuals, and when our normative aspirations
give too much way to pragmatic considerations, serious violations of human
rights take place, and our driving ideals, losing their utopian element, lose
their capacity to drive us towards concrete reforms of our present predicament.
Rawls, I believe, would agree with these concerns of Kuper. None the less it is
never too much to remind us, as Kuper does, that our appreciation of, and our
respect for, the valuable and significant role that cultures, traditions and
shared histories play in individuals’ life-projects and self-realisation,
should not blind us to the fact that the shared institutions, culture and
conceptions of good of a people are not undisputed and undisputable facts of
nature, but can and should be criticized when they are felt and judged to be
violating individuals’ autonomy. I have no doubt that Rawls would agree with
this cautionary remark, given both his unshakable commitment to the priority of
the right over the good, and his anti-foundationalist awareness. For this same
reason I agree with Kuper that it would be better to take individuals as the primary
moral and political subjects of global justice, and let the role of culture in
the realization of their life project be decided by them in the original
position. (157)
In this paper I have argued that Rawls’s reflections
on justice, from his A Theory of Justice
to The Law of Peoples, passing
through Political Liberalism,
elaborate what I call an anti-foundationalist deliberative democratic
conception of liberal justice concerned to accommodate its universalistic
aspirations with multiculturalism.
I have argued in particular that ‘justice as fairness’
cannot be considered the expression of a deontological theory attempting to
ground the principles of liberal justice on absolute grounds, trying to deduce
them from an a priori conception of
rationality. Justice as fairness stands, in fact, on a firm ethnocentric
epistemological awareness, as it is exemplified by his ‘reflective equilibrium’
conception of justification. Indeed, justice as fairness expresses a particular
conception of the good among many others, only a more liberal one that aims at
enabling different comprehensive view of the world to live together on terms of
reciprocal respect. This moral point of view is conveyed by the normative
device of representation that Rawls calls ‘the original position’. Its
epistemological significance is not a foundational one, as it represents only
an attempt to formulate in a clear and coherent way the moral intuitions that
Rawls regards as contained in the moral and political tradition to which he
belongs.
I have argued that this ethnocentric normative
awareness has been further stressed by his later conception of public reason,
which he introduces to replace the construction of the original position as the
driving normative core of his conception of liberal justice. The notion of
public reason, I also argued, allows Rawls to meet the objections of those
theorists of democracy who failed to appreciate the discursive dimension of his
conception of political legitimacy in A
Theory of Justice. The notion of public reason enables him to depart from
the abstraction of the original position and come down to the worldly,
deliberative, reality of the principle of reciprocity that has always been at
the centre of justice as fairness. I have further argued that the combination
of Rawls’s commitment to public deliberation and his anti-foundationalist
awareness leads him to appreciate how the liberal project should be centred on
a commitment to self-reflexively keep open to debate and revision the outcomes
of its deliberations as well as its fundamental assumptions.
Finally I have illustrated how Rawls’s contribution to
the theory of international relations and global justice should be considered
an attempt to draw a difficult and risky path through the muddy and contested
‘no man’s land’ running between individual and collective rights,
cosmopolitanism and multiculturalism, without falling into the opposed but
similar traps of blind and hypocritical universalism and relativism.
References
(1) M. Sandel, Liberalism
and the Limits of Justice (Cambridge: Cambridge University Press, 1982),
p.3; referred to hereinafter as LLJ.
(2) Ibidem.
(3) J. Rawls, A
Theory of Justice, rev. edn (Oxford: Clarendon, 1999), p. 3; hereinafter TJ.
(4) Ibidem, p. 4.
(5) J. Rawls, The Priority of Right and Ideas of the
Good, in Collected Papers
(Cambridge, Mass., and London: Harvard University Press, 1999), p. 449;
hereinafter Col. Pap.
(6) J. Rawls, The Idea of an Overlapping Consensus,
in Political Liberalism (New York:
Columbia University Press, 1993), p. 137; hereinafter PL.
(7) J. Rawls, The
Priority of Right and Ideas of the Good, in Col. Pap., p. 450.
(8) J. Rawls, Justice
as Fairness: political not metaphysical, in Col.
Pap.,
p. 390.
(9) J. Rawls, Fundamental
Ideas, in PL, p. 37.
(10) R. Rorty, Justice
as Fairness, in Col. Pap.,
p. 388.
(11) R. Rorty, Fundamental Ideas, in PL, p.12; the emphasis is mine.
(12) See The Idea of an Overlapping Consensus, in Col. Pap., p. 425.
(13) J. Rawls, The Idea of Public Reason, in PL, p. 217.
(14) Ibidem, p. 214.
(15) J. Rawls, The Power of Citizens and Their
Representations, in PL, p.
54.
(16) J. Rawls, The Idea of Public Reason, in PL, p. 217.
(17) J. Rawls, The Priority of Right, in Col. Pap., pp. 460-1.
(18) Ibidem, p. 467.
(19) I am not distinguishing here between ethics and
morality as Habermas does, but using the two terms interchangeably to refer to
views and conceptions of individual and collective life projects and the
fundamental values underlying them.
(20) See The Power of Citizens, in PL, p. 62: «being reasonable is not an
epistemological idea. Rather, it is part of a political ideal of democratic
citizenship».
(21) Ibidem, p. 51.
(22) Ibidem, p. 52.
(23) Ibidem, p. 51.
(24) Ibidem, p. 52.
(25) R. Rorty, Science as Solidarity, in Objectivity, Relativism, and Truth
(Cambridge, Mass.: Cambridge University Press, 1991), p. 37.
(26) J. Rawls, The Idea of an Overlapping Consensus,
in PL, p. 150.
(27) Ibidem, p. 152.
(28) R. Rorty,
Contingency, Irony, and Solidarity, (Cambridge, Mass.: Cambridge University
Press, 1989), p. 52.
(29) J. Rawls, Kantian Constructivism in Moral Theory,
in Col. Pap., p. 306.
(30) R. Rorty, Contingency,
Irony, and Solidarity, p. 84.
(31) J. Rawls, Justice as Fairness: Political not metaphysical,
in Col. Pap., p. 395.
(32) J. Rawls, The Idea of an Overlapping Consensus,
in PL, p. 153.
(33) J. Rawls, TJ,
p. 19.
(34) J. Rawls, Kantian Constructivism, in Col. Pap., pp. 306-7.
(35) Ibidem, p. 306.
(36) J. Rawls, Justice as Fairness, in Col. Pap., p. 390.
(37) Ibidem, p. 393.
(38) J. Rawls, Priority of the Right, in Col. Pap., p. 459.
(39) J. Rawls, TJ,
p. 10.
(40) J. Rawls, Kantian Constructivism, in Col. Pap., p. 310.
(41) J. Rawls, Fundamental Ideas, in Political Liberalism, p. 23.
(42) J. Rawls, TJ,
p. 14.
(43) J. Rawls, Kantian Constructivism, in Col. Pap., p. 310.
(44) J. Rawls, TJ,
p. 118.
(45) Ibidem, p. 348.
(46) Ibidem.
(47) J. Rawls, Kantian Constructivism, in Col. Pap., p. 314.
(48) Ibidem, p. 312.
(49) Ibidem, p. 266.
(50) Ibidem, pp. 3-4.
(51) Ibidem, pp. 23-4.
(52) Ibidem, p. 63.
(53) Ibidem, p. 64.
(54) Ibidem, p. 65.
(55) J. Rawls, TJ,
p. 105.
(56) Ibidem, p. 122.
(57) J. Rawls, Justice as Fairness, in Col. Pap., p. 400.
(58) Ibidem, p. 402.
(59) Ibidem. The emphasis is mine.
(60) J. Rawls, Kantian Constructivism, in Col. Pap., pp. 305-6. The emphasis is
mine.
(61) Ibidem, pp. 306-7.
(62) Ibidem, p. 306.
(63) Ibidem.
(64) J. Rawls, Justice as Fairness, in Col. Pap., p. 402.
(65) Ibidem; TJ, p. 480.
(66) M. Sandel, LLJ, p. 16.
(67) J. Rawls, TJ,
pp. 230-32: «How can this doctrine determine an Archimedean point from which
the basic structure can be appraised?»; and p. 511: «embedded in the principles
of justice there is an ideal of the person that provides an Archimedean point
for judging the basic structure of society».
(68) Ibidem, p. 514; emphasis mine.
(69) Ibidem, p. 512.
(70) Ibidem, pp. 14-15.
(71) J. Rawls, TJ,
p. 50.
(72) J. Rawls, Kantian Constructivism, in Col. Pap., p. 356.
(73) J. Rawls, TJ,
p. 52.
(74) See Kantian Constructivism, p. 340: «rather
than to think of the principles of justice as true, it is better to say that
they are the principles most reasonable for us, given our conception of persons
as free and equal, and full cooperating members of a democratic society».
(75) J. Rawls, TJ,
p. 18.
(76) Ibidem, p. 506.
(77) J. Rawls, The Power of Citizens, in Col. Pap., p. 53 footnote 7.
(78) Ibidem, p. 214.
(79) J. Rawls, The Idea of Public Reason, in Col. Pap., p. 253.
(80) J. Rawls, Col. Pap., p. xlvi.
(81) A. Gutmann and D. Thompson, Democracy and Disagreement (Cambridge, Mass. and London: Harvard
University Press, 1996), p. 37.
(82) B. Barry, Justice
as Impartiality (Oxford: Clarendon
Press, 1995), p. 58.
(83) Ibidem, p. 59.
(84) Ibidem, p. 61.
(85) A. Gutmann and D. Thompson, Democracy and Disagreement, p. 38.
(86) Ibidem, p. 51; my emphasis.
(87) J. Rawls, TJ,
p. 104.
(88) J. Rawls, Justice as Fairness: A Restatement (
(89) J. Rawls, TJ, p. 19.
(90) B. Barry, Justice
as Impartiality, p. 55.
(91) H. P. Brown, Egalitarianism and the Generation of
Inequality (Oxford: Clarendon Press, 1988), p .444.
(92) B. Barry, Justice
as Impartiality , p. 56.
(93) J. Rawls, The Idea of Public Reason, in PL, p. 218.
(94) A. Gutmann and D. Thompson, Democracy and Disagreement, p. 52.
(95) J. Cohen, Procedure and Substance in Deliberative
Democracy, in S. Benhabib, (ed.), Democracy
and Difference (Princeton, N.J.: Princeton University Press, 1996), p. 100.
(96) J. Rawls, TJ,
p. 475.
(97) B. Barry, Justice
as Impartiality, p. 52.
(98) See T. M. Scanlon, Contractualism and
Utilitariansim, in A. Sen and B. Williams, eds, Utilitarianism and Beyond (Cambridge: Cambridge University Press,
1982).
(99) B. Barry, Justice
as Impartiality, p. 67.
(100) J. Waldron, Law
and Disagreement (Oxford: Clarendon Press, 1999), p. 152.
(101) Ibidem, p. 158.
(102) J.
Rawls, The Idea of Public Reason, in PL,
p. 253.
(103) J.
Waldron, Law and Disagreement
(Oxford: Clarendon Press, 1999), p. 158.
(104) J.
Rawls, The Idea of Public Reason, in PL, p. 226.
(105) J.
Rawls, PL, p. liii.
(106) See for instance J. Gray’s Two Faces of Liberalism (
(107) J. Rawls, The Idea of Public Reason, in PL,
p. 223.
(108) J. Gray, Two
Faces of Liberalism, p. 81.
(109) Ibidem, p. 2.
(110) Ibidem, p. 1.
(111) R.
Bellamy, Liberalism and Modern Society,
p. 261.
(112) M. Sandel, LLJ, p. 16.
(113) Ibidem, p. 17.
(114) Ibidem: «Where the first would be arbitrary because contingent, the second
would be arbitrary because groundless…These then are the perplexing and
difficult demands of the Archimedean point [which allegedly Rawls tries to look
for] – to find a standpoint neither compromised by its implication in the world
nor dissociated and so disqualified by detachment».
(115) J.Rawls: The Law of Peoples (LP), (Cambridge, Mass., London, England: Harvard University Press,
1999).
(116) Ibidem, p. 3.
(117) Ibidem, p. 10.
(118) J. Rawls, LP,
p. 59.
(119) Ibidem.
(120) Ibidem, p. 67: «We give it meaning by how we use it».
(121) Ibidem, pp. 64-7.
(122) Ibidem, p. 64.
(123) Ibidem, p.77.
(124) Ibidem, p. 92.
(125) Ibidem, p. 90.
(126) Ibidem, pp. 25-6.
(127) Ibidem, pp. 26-7.
(128) Ibidem, pp. 23-4.
(129) Ibidem, p. 41.
(130) Ibidem, p. 37.
(131) A.Kuper: Democracy
Beyond Borders. Justice and Representation in Global Institutions (DBB),(
(132) Ibidem, p. 4.
(133) Ibidem, p. 19.
(134) Ibidem, p. 20.
(135) Ibidem, pp. 20-1.
(136) Ibidem, p. 21.
(137) Ibidem, p. 22.
(138) Ibidem.
(139) Ibidem.
(140) J. Rawls, LP,
p. 84.
(141) Ibidem, p. 90.
(142) Ibidem, pp. 80-1.
(143) Ibidem, p. 81.
(144) Ibidem, p. 82.
(145) Ibidem, pp. 82-3.
(146) Ibidem, p. 60.
(147) Ibidem.
(148) Ibidem, p. 70.
(149) Ibidem, p. 61.
(150) A. Kuper, DBB,
p. 22.
(151) J.
Rawls, LP, p. 62.
(152) A.
Kuper, DBB, p. 34.
(153) Ibidem, pp. 42-4.
(154) I. Kant, Perpetual Peace, in H. Reisss, trans.
and ed., Kant’s Political Writings
(Cambridge University Press, 1991), quoted in A. Kuper, DBB, p. 38.
(155) B. Ackermam, Political Liberalism, in “Journal of Philosophy”, vol. 91, n.7
(1994), pp. 382-3.
(156) A. Sen, Development
as Freedom (Oxford: Oxford University Press, 1999).
(157) A. Kuper, DBB,
p.24: «In political liberalism, we do not close off the possibility that
parties representing free and equal persons in a global original position would
decide in favour of thin states [i.e. states whose government is constrained by
reasonable peoples]…rather we say that thin states…must be justified».