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IN PRAISE OF JOHN RAWLS,THE MAN
WHO MADE MORAL PHILOSOPHY
RESPECTABLE AGAIN--AND WHOSE
VIEWS ALSO PROFOUNDLY INFORMED
AMERICAN LEGAL THOUGHT
By MICHAEL C. DORF
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Wednesday, Dec. 11, 2002
Philosopher John Rawls died last month. Many of the ideas that he
championed--including, most famously, the principle that a just society
should work to improve the lot of its least fortunate members--have fallen
out of fashion. Nonetheless, Rawls remained the most important American
philosopher since John Dewey. Indirectly, his views of how a democratic
constitution secures justice have had a profound impact on American legal
thought as well.
Rawls's Influence: Making Moral Philosophy Respectable Again
Philosophy means the love of knowledge, and to the ancients, the knowledge
philosophers loved was all-encompassing. Socrates, Plato and Aristotle
propounded theories about the nature of existence and how human beings
should live.
So too, Enlightenment philosophers like John Locke and Immanuel Kant are
as famous for their views on how to organize individual and social lives,
as
for their views on the organization of the material world.
Yet philosophy has long been losing turf. Science does a better job of
describing the physical world than pure thought does. For example, Aristotle
believed--relying on intuition and deduction--that objects in motion tend
to
come to rest, and that heavier objects fall faster than lighter ones. But
Galileo, by contrast, proved these views wrong by systematic experiment
and observation.
Meanwhile, philosophy's claim to speak to morality and ethics has declined
as well. When philosophers shared a common set of religious assumptions,
they could propound moral axioms as universal truths without paying much
attention to the controversial nature of their axioms. The religious
assumptions, however, are no longer shared.
Numerous factors--including the rise of Darwinian evolution, growing
religious pluralism, and the secularization of universities--led to a separation
of philosophy and religion. Yet, as contemporary philosophers such as
Alasdair MacIntyre have persuasively argued, much of the structure of
moral philosophy continued to rest on a religious foundation.
By the middle of the twentieth century, most philosophers had followed
Ludwig Wittgenstein in taking a "linguistic turn" away from pondering the
great questions of how to live our lives, and toward analyzing what it
is that
people mean when they use concepts like "good," "right," and "justice."
Philosophical quandaries, in this view, were caused by confusion; by
clarifying our concepts, philosophers could eliminate the confusion and
thus
the philosophical quandaries.
John Rawls changed all of that. He made moral philosophy respectable
again. Rawls did not re-inject religion into philosophy. On the contrary,
he
began with the assumption of religious pluralism and asked how it is that
people with vastly different conceptions of what it means to live a good
life,
can nonetheless treat each other fairly.
The Starting Point: The Original Position and the Veil of Ignorance
Rawls followed Kant in giving priority to the "right" over the "good."
To lead
a good life, according to Rawls, is to follow a comprehensive life plan
of the
sort that religions prescribe. In a pluralist society, however, people
hold
vastly different conceptions of a good life, and accordingly, if they are
to live
together in peace, they cannot each insist on using the state's resources
and
coercive power to further their particular conception.
Accordingly, Rawls argued that the state must remain neutral with respect
to
various conceptions of the good. People, as individuals and collectively
acting through the state, are nonetheless obligated to treat one another
fairly. In his seminal 1971 book, A Theory of Justice, Rawls defined justice
as fairness.
But isn't fairness one of those moral concepts about which people disagree?
Rawls thought not, and he made his point by borrowing (and modifying) a
thought experiment used by social contract theorists like Locke.
Rawls asked what basic political arrangements people would choose if they
were in the "original position" of establishing the basic structure of
government. To prevent self-serving choices, he hypothesized that such
a
choice must be made behind a "veil of ignorance," which shields our
constitution-makers from the knowledge of both their relative fortune and
their conception of the good.
Someone in the original position could not choose laissez-faire capitalism
on
the ground that she is wealthy, or oppose a right of abortion on religious
grounds. Behind the veil of ignorance, she would not know what her wealth
or religion would be.
The Result: Constitutional Rights, and the Difference Principle
Using these relatively modest starting points, Rawls derived two sets of
principles. First, he justified most of the familiar constitutional
rights--freedom of speech, freedom of religion and conscience, a right
against racial discrimination, rights to fair warning in criminal prosecutions,
and so forth.
Second, and more controversially, Rawls argued that behind the veil of
ignorance people would order the economy according to what he called "the
difference principle." That principle states that inequalities in the distribution
of society's material resources are acceptable only to the extent that
they
work to the advantage of society's least fortunate members.
What The Difference Principle Means
How can inequalities advantage the poor, as Rawls suggested? The simple
answer is this: rough redistribution via taxation.
By contrast with extreme forms of socialism, the difference principle
acknowledges basic human nature: If people are not permitted to keep
some substantial fraction of what they earn, they will cease to work or
they
will take steps--like selling their labor on the black market--to avoid
taxation. And without tax revenue to redistribute, the poor will not be
helped.
Thus, rates of taxation cannot be set so high as to be self-defeating.
However, the difference principle allows some modest reductions in the
net
store of wealth in the service of a more egalitarian distribution of resources.
Nozick's Criticism of the Difference Principle
A variety of criticisms of the difference principle have been offered.
Perhaps
the most famous was offered by Rawls's longtime colleague, Robert Nozick,
who also died this year. In his book Anarchy, State and Utopia, Nozick
argued that any political system that aims at a fair distribution of resources
will end up unduly intruding into the lives of its citizens.
Given the fact of unequal distribution of talents and inclinations, inequalities
of wealth are an inevitable product of free exchange. Even if we begin
with
an equal distribution of resources, people will, to use Nozick's most famous
example, pay more money to watch a very proficient basketball player than
to watch a clumsy oaf. As a result, in a short time the proficient player
will
end up wealthy relative to the oaf (assuming the oaf lacks some other
proficiency that is in great demand).
At that point, redistribution would again be necessary, ad infinitum. So
long
as the conditions of exchange are fair, Nozick argued, there is nothing
unjust
about any particular distribution of resources.
Whether Nozick's criticism is fatal to Rawls's project is an open question.
As
a practical objection, it seems to miss the mark. A system of taxation
that
approximates the difference principle can be set up and then left to run
its
course without adjusting the framework each time a new transaction occurs.
But Nozick's objection is better viewed as a matter of basic morality than
practicality. He denied Rawls's claim that the distribution of talents
and
inclinations should be regarded as a collective resource as a matter of
principle: Talents and inclinations, he thought, belonged to the individuals
who had them. (Nozick himself later softened his libertarian views, but
others have continued to make his point forcefully.)
Should the unequal distribution of talents and inclinations be regarded
as
just hard luck for those holding the short end of the stick? I have my
intuition about this question, and you probably have yours. Perhaps the
best
way to adjudicate the matter is to imagine ourselves behind the veil of
ignorance in the original position.
Would People Behind the Veil of Ignorance Really Choose the
Difference Principle?
But this brings us to another criticism of Rawls: how do we know that people
would actually choose the difference principle behind the veil of ignorance?
To give an over-simplified example, suppose that, absent taxation, eighty
percent of society would be either middle class or wealthy, while twenty
percent would be poor. Suppose, further, that raising the condition of
the
poor to that of the poorest of the middle class would require a fifty percent
reduction in the standard of living of the middle class and wealthy.
Given that choice, most people might choose to run the twenty percent risk
that they will end up among the poor, rather than risk a fifty percent
reduction in their standard of living in the four times more likely event
that
they end up middle class or wealthy. In short, they might let inequalities
stand as they are, rather than reducing them to make sure they might not
suffer them.
Obviously, given the great variety of possible tax schemes and their effects,
whether people in the original position would choose the difference principle
cannot really be known.
Still, it can be said in defense of Rawls that even if people might not
choose
the difference principle, they probably would not choose the current
distribution of resources. In our society now, the top one percent of
Americans have roughly forty percent of the nation's wealth, while the
bottom fifty percent have only about three percent of the nation's wealth.
Behind the veil of ignorance, Rawls argued, people would not rationally
bet
so much on being in the top one percent, or even the top fifty percent.
How then do we explain the fact that our democracy--in which most people
find themselves with only a small fraction of society's resources--does
not
yield greater redistribution? Rawls thought that this fact could only be
explained by a political system corrupted by the impact of money.
The Methodological Legacy of Rawls: The Court's Reflective
Equilibrium
Even if the difference principle has not fared well among our lawmakers,
Rawls can be credited--at a minimum--with providing a strong justification
for the method by which the United States Supreme Court reasons in
controversial rights cases. Though the Court has never cited Rawls in its
opinions, his logic is noticeably present.
Rawls thought that arguments based on comprehensive views about the
good--such as those provided by religion--were inadmissible in debates
about what fundamental rights people ought to have. But that leads to a
vexing question: Without recourse to theological authority, how can people
discern basic principles of justice? Of course, this is also a question
relevant
to the courts, which must call exclusively upon secular sources of law.
Rawls advocated a method he called "reflective equilibrium." We must ask
of
a moral theory how well it fits with and justifies the moral intuitions
we
consider unassailable--such as the proposition that slavery is wrong. When
we do, some of our concrete moral intuitions will, upon close examination,
conflict with one another. Thus, we will need to amend them in accordance
with the theory, until finally an equilibrium is reached between the abstract
theory and the concrete intuitions.
This process, Rawls thought, can be applied using only our intuitions about
basic rights--without regard to religious or other comprehensive views
about
the good.
One can draw a strong parallel between the method of reflective equilibrium
and the traditional common-law method of Anglo-American jurisprudence.
In
place of individual moral intuitions, substitute individual precedents.
Just as
reflective equilibrium will sometimes require the abandonment of an
intuition, so the process of adjudication will occasionally require that
past
precedents be overruled.
Rawls's Influence on Dworkin, and the Problems with the Views of
Both
In the legal academy, Ronald Dworkin is commonly credited with the view
that judges should strive for a principle of "integrity" that both fits
and
justifies past decisions. Unsurprisingly, Dworkin's views are themselves
strongly influenced by Rawls.
Both Dworkin and Rawls have been criticized on the ground that they take
insufficient account of moral disagreement. With respect to Rawls, it was
argued that despite the veil of ignorance, the people he placed in the
original
position held values remarkably like those of John Rawls.
To some extent, Rawls acknowledged this criticism. In his 1993 book,
Political Liberalism, the theory of justice appears not as an account of
any
conceivable human society but of a Western democratic one in particular.
In
limiting his theory this way, Rawls acknowledged that to some extent, his
theory had been fitted to the society in which he himself lived. With that
modification, Rawls's views come even closer into line with our own
constitutional culture.
For example, the Supreme Court will soon decide whether the Fourteenth
Amendment's guarantee of "Equal Protection of the Laws" permits Michigan
to give an advantage to members of traditionally disadvantaged groups in
seeking a diverse university student body. It will also decide whether
that
same constitutional provision permits Texas to impose criminal penalties
for
"homosexual conduct."
In considering these issues, the Court will ask what it means for a society
to
treat people as free and equal citizens. However, in the spirit of Rawls's
later
work, the Court will not ask this question about any conceivable society.
Rather, the Court's inquiry will focus on the values of a particular Western
democracy--the United States in the Twenty-first Century.
A Personal Note: Rawls as a Professor
As an undergraduate in the 1980s, I had the good fortune to study with
both
Robert Nozick and John Rawls. Nozick was a gifted teacher. He did not so
much lecture as think aloud. It was exciting to see him do philosophy on
his
feet.
Rawls was not, by conventional standards, a good classroom teacher. He
spoke with a severe stutter and perhaps for that reason, he read his lecture
notes aloud verbatim. Because Rawls also distributed these notes, there
was, in principle, no reason to come to class. Yet such was the power of
the
man and his ideas, that the room was always packed.
In a moving eulogy in the New York Times, Martha Nussbaum wrote that
"Rawls has sometimes been portrayed as a kind of natural saint." Perhaps,
but as students in a large lecture class whose only interaction with Rawls
occurred in the brief question-and answer period that followed each lecture,
we could not discern much about his personal qualities.
We came and stayed for those lectures because we could tell, even through
the stutter--perhaps in part because of the stutter--that John Rawls was
a
man for whom the basic questions about how to organize a just society were
urgent business. We could use more people like Rawls in public life today.