A Fair State

It is over twenty years since John Rawls’s A Theory of Justice was published. It was recognised at once as an immensely significant contribution to modern political philosophy, and its reputation has only grown since. There are many questions, about social justice, toleration and the stability of a modern state, that can scarcely be discussed unless one starts from ideas that have been shaped by Rawls.

The author himself has not been idle in these years. Unlike some who have made large contributions to philosophy, he has not been content to act as the janitor of his system, stopping leaks, explaining it to visitors, and replacing some of the wiring to meet improved modern standards. On the contrary, he has in certain respects basically rethought it. Rather than merely fiddling with the details in order to answer his critics and to provide new applications, while keeping all the central emphases the same, Rawls has done almost the opposite. He has preserved nearly all the structure, including most of the detail, but has given a new account of what it is about, the purpose that it primarily serves. He has provided what is almost a new interpretation of his own ideas.

He has done this over the years in a series of published lectures, which Political Liberalism now brings together. They are still called lectures, and they still display marks of the form. Some of them have been rewritten or edited more than others, and there is a good deal of repetition; the last two pieces in the book particularly, ‘The Basic Liberties and their Priority’ and ‘The Basic Structure as Subject’, start from the foundations of the system – which, by this stage, is hardly necessary. The book does not try to be independent of A Theory of Justice, and no one will get much from it who does not know that work quite well. A good deal of it (especially in the very helpful and instructive footnotes) is concerned with detail, and with Rawls’s discussions with his critics, discussions that are unfailingly courteous, concessive to the furthest limits that reason, honesty and good will can reach, and marked throughout by a most distinctive quality – a straightforward and unfeigned gratitude for being helped to see things more clearly. In many respects this book is a commentary on the earlier work, but above all, among its detailed developments and concessions, it offers a new conception of what Rawls is at.

Theory, as Rawls calls the earlier book (and we might as well follow him), offered a reasoned basis for thinking about social justice in the form of a fundamentally very simple thought-experiment. Those who are going to share life in a society are represented, in this fiction, by people in an ‘Original Position’ who are instructed to choose the structure and fundamental principles of a social system without knowing what role in it each person will play. The question of what people would choose if they did not know how they would benefit from the arrangements (if they were behind a ‘veil of ignorance’, in Rawls’s famous phrase) is used to model what would be a fair arrangement for people in ordinary life, rather as you may get a fair division of a cake by asking someone to cut it who does not know which piece he will get. Behind the veil of ignorance, the parties choose ‘rationally’, as Rawls puts it, which means on the basis of intelligent self-interest. However, behind the veil, they do not know what their particular interests are, so everyone’s self-interest has to be stylised in terms of a set of all-purpose or ‘primary’ goods – notably, liberty, money and self-respect – which it is assumed are valued by any human being, or at least any human being who is a candidate for living in a modern society. Under these assumptions, Rawls argued, people would choose a rather specific set of provisions to shape their society, including a priority for liberty over other goods, and also a principle of distributive justice, called ‘the Difference Principle’, which says that any departures from equality can be justified only if they benefit the worst-off. This principle can be expected to have a notably redistributive effect.

Although in the Original Position the choice is made in terms of rational self-interest, Rawls did not suppose that social justice could be based solely on self-interest. To suppose that this was the idea is to leave out the device of the Original Position itself. A self-interested person is not bound by what he would choose if he did not know who he was or what his advanantages were. The whole point of the model is that a person who is willing to think in these terms, to imagine himself into the Original Position, is someone prepared to consider what is fair; he is a person who, as well as being merely rational, is ‘reasonable’, as Rawls says, and is willing to live on reasonable terms of co-operation with others. This point, central to Theory, was made entirely clear there, and Rawls has shown a saintly degree of patience with the remarkable number of critics who have not understood it.

The conception of justice that emerged from Theory was called Justice as Fairness. Some of its principles invited interpretation as constitutional features of the society; others, and in particular the Difference Principle, looked more like determinants of a desirable policy. It was itself a moral theory, which applied moral criteria to a political subject matter, saying what, from that moral point of view, a just society would be like. It seemed, moreover, to represent an ideal for any society anywhere, or at any rate for any society secure and developed enough for such aspirations to social justice to become real possibilities for reflection and for action.

The radical change in Rawls’s position is that he now sees Justice as Fairness as a distinctively political conception. This means that he wants to distinguish it from any comprehensive moral doctrine among the many that claim to tell human beings how to live. It is both more and less than any such doctrine. It is less, because it does not claim to determine important metaphysical and moral questions that are vital to a view of life – religious issues, for instance, or questions of what sort of individual life is most worth living. It is also more than any overall moral outlook because, just in virtue of its minimalism, it can serve a purpose that no such comprehensive doctrine could serve – that of providing a decent shared framework within which people with different outlooks can share a social life.

The importance of this purpose is intimately connected to another change in the interpretation of Justice as Fairness: that it no longer offers a universal theory of justice. As, now, a political theory, it offers a solution to what Rawls sees as a distinctively modern political problem: how to settle the structure and principles of a society that contains a variety of groups with differing comprehensive outlooks or creeds – a society that is, and is going to remain, as Rawls supposes, pluralist. Justice as Fairness is seen as providing a central structure, a set of principles, on which the differing groups can agree as a basis for society as a system of ordered and principled cooperation, despite the fact that the groups disagree on many matters of great ethical importance. Its spirit, therefore, is very closely associated with the idea of toleration, and indeed Rawls often mentions the ideas of toleration that emerged from the wars of religion as a historical precursor of the ideas he is exploring.

That case, as Rawls points out, is not a perfect example of what he has in mind. For one thing, the arrangements were felt by many, at least at first, to constitute merely a modus vivendi, the best that could be achieved granted that no one could win and most people had tired of violence. Rawls insists very strongly that his pluralist society is not based merely on such a compromise. His principles of justice are more than devices to get people to live together as an alternative to their dying together. Life in accordance with the principles of justice, the life of toleration and fair co-operation under ideological difference, itself represents a higher human capacity for reasonableness and intelligent moderation. At some points Rawls salutes this capacity as among the most valuable human characteristics. Since it is distinctively elicited by the circumstances of pluralism, it should follow that the condition of pluralism itself is not just a special feature of modern societies (still less, as cultural conservatives would have it, a deplorable feature), but a particularly valuable historical development, an expression of progress. Rawls comes close to saying this, without quite doing so. At certain moments he acknowledges that while the values of liberalism are those particularly developed by modernity, there are other human possibilities, certainly valuable, which liberalism has ruled out.

Religious toleration has both encouraged and been helped by religious scepticism; sensible people, faced with the clash of fanaticisms, can reasonably wonder whether any of these positions can be known to be true – whether indeed they may not all be untrue – and their enthusiasm for any of them declines. Rawls certainly rejects fanaticism from his reasonable republic, but equally he does not want scepticism and indifference to overcome the outlooks that coexist in it. People must live by some conception of the good. Rawls hopes that in the pluralist state such conceptions will be strong and will give distinctive meaning to the lives of those who follow them, but at the same time he needs the conceptions to be peacable and reasonable enough for them to coexist amiably within the shared framework of justice. Indeed, the shared framework itself needs the various conceptions of the good to flourish. In giving a detailed account of the way in which the institutions of justice can be grounded in, and can hold together, what he calls the ‘overlapping consensus’ among the various ethical conceptions, he sees moral energy as passing in both directions, between the central values of justice and the various ideals. Scepticism and cynicism about the various overall ethical outlooks can only serve to weaken the liberal structure of Justice as Fairness at the same time.

It is often asked whether the ideals of liberalism are robust or substantial enough to provide a focus of loyalty or aspiration. To this question, in this from, Rawls gives careful and reassuring answers, articulating the values and aspirations that go with Justice as Fairness, and explaining how it can coexist with a range of other, more comprehensive outlooks. The difficulty for him comes rather when one asks the converse question: how robust and distinctive can the various views be that coherently coexist under liberalism? It is not all that clear, first of all, what sort of thing they are. Sometimes Rawls seems to have in mind certain philosophical moral theories, such as Utilitarianism; but it will be no great political feat, obviously, to get such typical products of modernity (Mill and Kant, for instance) to coexist under liberalism. Sometimes he has in mind various religions, but in order to form part of the overlapping consensus, they and their followers have to be reasonable, and the demands of Rawls’s reasonableness are strong enough to make one suspect that only domesticated and already liberal forms of religion will count. Rawls’s state has no way of including militant Hinduism or Islam, for instance, or the most fanatical variants of Orthodox Judaism, and no doubt it is not sensible to expect that it should, but Rawls would help us to understand better how wide his state could go if he said more about that frequent condition of mankind, violent and enthusiastic unreasonableness. Its forces look as though they may be making more rather than fewer demands on liberalism in the near future.

Even within his state, the space that Rawls leaves for the operations of the various outlooks is quite constrained. The desirable rules of public speech require politicians (at least with regard to important and national matters) to lay aside appeals to the distinctive beliefs about the good that they and their group may hold, and to move rather at a level of the shared structure and the common good. One is not even supposed, ideally, to vote (at the national level) with the motive of expressing one’s distinctive views of what kind of life is worth living, or any other such sectarian outlook. As an account of how one’s strongest convictions and values should be related to politics, this seems to leave a very narrow space between there being either no politics or no convictions. It is significant that when Rawls addresses the one issue in current American politics that is acknowledged to carry a powerful religious and ethical charge, abortion. Justice as Fairness itself delivers one answer than the other: the right to abortion should be constitutionally protected.

Rawls’s theory is obviously grounded very deeply in the American constitutional experience, which he salutes, while at the same time he freely admits the many ways in which the American system has fallen short of its own best aspirations. Despite his admissions, however, his account even of America, the heartland of his conception, sometimes seems disembodied and idealistic. It is not that he mistakes abstract moral theory for concrete political reflection; he is very good on the role of abstract thought in politics, and he has many sensible reflections on the psychological and political effects of adopting one or another attitude to social justice. What is lacking, rather, is the dimension of what might be called the sociological imagination, a sense that the peculiarities (including the peculiar successes, to date) of American constitutionalism may depend on features of American society which are grounded neither in its political organisation nor in its ideals, but in such things as the history of its immigration and its dedication to the aims of commercial society. Without some discussion of the peculiarities of America, it is very hard to do what Rawls wants us to do, which is to agree that a system based on America’s experience (though it registers some limitations of that experience) can serve as the basis for reconciling, in order and decency, conflicting moral or religious claims as they occur in very different sorts of society.

When Theory first presented the theory, one thing that attracted particular attention was the strongly redistributive implications of the Difference Principle. It seemed a theory especially addressed to defining economic and social justice. Now that it has taken on its new aspect of a political theory of the tolerant liberal state, the Difference Principle has come to play a distinctly secondary role compared to the elements that help to define a constitutional structure within which the debates of politics can go on. Rawls indeed explains with some care why the Difference Principle cannot enjoy the same kind of status as other principles generated by the theory; cannot, in other words, provide the central constitutional structure. The main reason is that anything as obviously a matter of contested politics as redistributive taxation cannot expect the support of the overlapping consensus. But this is a strange reason. The argument for the Difference Principle is as strong as any other in the theory, and if people can be expected to reject it, despite those arguments, because of their conflicting political commitments, it is not clear why that should not apply to the more constitutional provisions as well.

Rawls’s movement from a near-universal moral theory of social and economic justice to a political theory of the modern liberal state, with its pluralism and its toleration, is a remarkable, impressive and compelling transformation. Anyone concerned with these questions and familiar with Theory’s original formulations will want to follow the arguments that Rawls offers here in support of that transformation and for its consequences. As we follow them, we shall he bound to ask: how much room does Rawls’s liberalism really leave for radically various moral conceptions of human beings and of society? What place does it find, in its new incarnation, for one of its own most distinct conclusions, the demand for a thoroughgoing redistribution of advantage? It is characteristic of Rawls’s achievement that these are questions that in one form or another we shall have to confront anyway.