The Central Role of Rawls's Theory

...Rawls's conception of justice as fairness challenged the dominant utilitarian understanding of how to treat people as equals...

...The absence of these freedoms from the list of basic liberties is no oversight or inconsistency on Rawls's part...

...When philosophers sidestep this process of approaching reflective equilibrium, they act on faith rather than reason...

...Similarly, fair equality of opportunity goes far beyond the classical liberal ideal of careers open to talents...

...For utilitarians, treating people as equals means counting each person's interests equally in calculations of social welfare...

...Thomas Nagel, T.M...

...Of course, reading Rawls did not suddenly convert utility maximizers and "emotivists" into rights theorists...

...Yet new philosophical ideas also catch on faster in the academy than in the real world...

...It challenges every critic to offer constructive revisions of justice as fairness, to defend another systematic theory whose premises and conclusions are more intuitively compelling, or to justify something other than a systematic theory (such as a plurality of principles refined and balanced by our practical judgment of particular cases...

...Whom would the courts hold responsible for providing the necessary goods and services...

...The first principle of Rawlsian justice—the equal liberty principle— gives priority to securing basic liberal freedoms: freedom of thought, conscience, speech, assembly, universal suffrage, freedom from arbitrary arrest and seizure, the right to hold public office and personal property...

...He argues that we have no better way of justifying principles that meet the minimum standards of moral reason (logical consistency, generality, and so on) than by translating the principles into social practices and judging whether the practices are consistent with our moral convictions...

...The second principle of Rawlsian justice has two parts...

...This is a formidable but fair challenge...

...To be sure, scholars stimulated by Rawls's theory have not singlehandedly (or together) guided the course of social reform...

...The absolute priority of liberty holds only for the ideal world...

...Political thinking in the academy has changed since the 1950s and early 1960s in at least three significant ways...

...Among twentieth-century philo338 • DISSENT Political TIMM/ sophical works Rawls's theory may be our most common possession...

...There we are all rational choosers...

...If Rawls's theory requires such an expansive reading of our rights, the courts could put Congress into receivership...

...In defending the method of "reflective equilibrium," Rawls is the most modest, and in this respect wisest, of the grand philosophers...

...Not knowing my own religion, I will choose a principle of religious toleration to govern society...

...Were Rawls the first philosopher to suggest a way of narrowing the gap between classical liberalism and socialism, the misinterpretation of Rawlsian principles would be less surprising...

...But what about the large bundle of rights necessary to secure fair equality of opportunity and the "difference principle...

...Some scholars were already searching for a systematic alternative to utilitarianism and emotivism...

...If a practice derived from the principles conflicts with a conviction, then we must either reformulate the principle or change our conviction...

...It is doubtful that our political alternatives are, or ever were, so stark and simple...

...Michelman's inconclusive conclusion seems correct...

...Scanlon, Bernard Williams, and (most recently) Will Kymlicka have elaborated the challenge...

...Rights advocates also lacked a convincing response to the enduring Marxist critique of rights as—not nonsense—but the common sense of capitalism, confusing the class interests of the bourgeoisie with the universal interests of humanity...

...Grand political theories, Bernard Crick observed, were treated like "corpses for students to practice dissection upon...

...Tawney, John Dewey, among others—who defend a politics explicitly more egalitarian than Lockeanism and explicitly more libertarian than Marxism...

...Green, L.T...

...Many students read Rawls in their philosophically formative years and grew up, as it were, with strong Rawlsian sympathies...

...Although utilitarians and socialcontract theorists are both committed to equality, their commitments differ dramatically...

...Their forays into practical ethics invoke moral considerations similar to Rawls's—what it means to treat people as equals, what kinds of claims can legitimately count as moral arguments in a public forum, whether individual rights or only matters of public policy are at stake, whether a policy endangers the selfrespect of citizens—but they rarely reach their conclusions in specific cases without generating new moral distinctions and priority rules, distinctions and rules tailored to the case at hand rather than derivable from an ideal theory of justice, Rawls's or even their own...

...Many liberal critics have SUMMER • 1989 • 339 Political Theory followed Robert Nisbet's reading of Rawls's theory as a radically egalitarian rejection of liberal freedom (reminiscent of Rousseau), while many socialist scholars have followed Norman Daniel's first reading of the theory as yet another liberal rationalization of large-scale inequalities in income, wealth, and power between classes (reminiscent of Locke...

...A Theory of Justice is still a triumph within the tradition of grand political theory...

...The most distinctive principle of Rawls's theory, the "difference principle , " is also the most counterintuitive...

...Liberals who believe in distribution according to the market or individual desert (or both) have criticized Rawls for not counting the freedom to appropriate the fruits of one's own labor as among the basic liberties...

...But it is also a less critical conception, at least in its legal implications, than some admirers of Rawls's theory hope...

...If any systematic view could claim adherents in the academy, it was utilitarianism, which asserted the seemingly simple principle, "maximize social welfare...

...Rawls's critics pay the greatest tribute to A Theory of Justice by affirming Henry James's view that "to criticize is to appreciate, to appropriate, to take intellectual possession, to establish in fine a relation with the criticized thing and to make it one's own...

...It rests on more than its influence in renewing philosophical defenses of human rights...

...It is curious that both sets of critics misrepresent the substance of Rawls's theory in a direction opposite to their own political sympathies...

...The "difference principle" prevents the poor from falling (even into a safety net) so long as it is possible to raise their life prospects higher...

...These are not questions that Rawls ever claims to answer...

...Although they find flaws and suggest revisions in the Rawlsian framework, most consider the principles a stimulus to their own thinking about justice...

...Although Rawls says little about the obligations of judges, legislators, or ordinary citizens in our society, his silence has stimulated scholars in many disciplines—law, philosophy, political science, economics, education, and medicine among others—to delve into issues of practical ethics in the spirit of Rawls's goal "to guide the course of social reform...

...An extraordinary number of philosophers, political scientists, economists, and constitutional lawyers have accepted it...

...They searched for a set of eternal forms, a self-evident truth, or a very simple first principle from which to derive all practical moral imperatives...

...Utilitarianism was also extremely influential outside the academy...

...On this view, the greater power of judges brings with it a greater responsibility than that of ordinary citizens to act on behalf of relatively powerless and poor citizens, especially when legislators fail to fulfill their responsibility to the least advantaged...

...The first (and most famous) part—the "difference principle" —justifies only those social and economic inequalities that maximize benefits to the least advantaged citizens...

...Some philosophers, calling themselves "emotivists," elaborated versions of the view that morality is just a matter of opinion...

...Mark Tushnet and others question whether abstract rights derived from the "original position" (or any other philosophical position) can be translated into something as specific as a legally enforceable right to health care, housing, or a minimum income in the United States today...

...What, then, is the relevance of justice as fairness for American politics...

...Socialists can consistently support the liberalism of the first principle because the second principle (the socialist core of Rawlsian justice) renders liberal freedoms far more than mere formalities for the disadvantaged...

...Since judges have more political power than the rest of us but less accountability than legislators, a Rawlsian philosopher (concerned to preserve the priority of equal political liberty) might discourage them from recognizing new welfare rights against legislative will...

...The income of the least advantaged may not be maximized, for example, by denying freedom of association to professionals or freedom of speech to neoconservatives...

...Socialists who believe capitalist ownership of large-scale enterprises to be a postfeudal form of private government have criticized Rawls for leaving the choice between private and collective ownership of large-scale industry open to empirical argument rather than settling it on moral grounds...

...In A Theory of Justice and subsequent writings, Rawls stops short of translating his two principles into specific social practices and judging the principles in light of common convictions concerning the practices, even though this step is essential to the method of justification that he defends...

...Still other, more established scholars first criticized A Theory of Justice and then constructed systematic theories to replace it...

...But they have broadly influenced public debates on a wide variety of controversial issues, among them affirmative action for minorities and women, legalization of abortion, distribution of health care and education, prevention of international famine, conscientious objection, civil disobedience, nuclear deterrence and foreign aid, and qualifiSUMMER • 1989 • 341 Political Theory cations for appointments to the Supreme Court...

...Rawls's revival (and revision) of contract theory gave rise to the second significant change in political thinking in the academy: the ascendancy of rights over utility...

...This integration of liberal and socialist principle explains the appeal of Rawlsian principles to left-liberals...

...People with "similar abilities and skills should have similar life chances . . . irrespective of the income class into which they are born...

...Where are these rights to be found in our Constitution...

...For social contract theorists, it means securing each person's basic interests against routine calculations of welfare...

...Communitarian Critique The most recent misrepresentation of Rawls is the communitarian critique...

...The triumph rests on more than the philosophical richness, originality, and wisdom that Rawls's work manifests to a degree not seen since John Stuart Mill...

...In our nonideal world, where inadequate education, housing, health care, and income may deprive the disadvantaged of their self-respect (a "primary good" to which Rawls also gives the highest priority), Rawlsian judges face a hard choice between deferring to legislative will (for the sake of equal political liberty) and enforcing welfare rights (for the sake of self-respect, the difference principle, fair equality of opportunity, and the fair value of liberty...

...To decide which course to take, we must use our practical judgment to weigh a variety of considerations (the firmness and consistency of our convictions, the certainty of the principles and of the evidence underlying the practice, and so on...

...Most philosophers today accept some version of Rawls's method of "reflective equilibrium," but few—including Rawls himself—actually practice it, at least in public...

...Second, most prominent political philosophers are now rights theorists...

...The legal theorist Frank Michelman concludes that it is quite unclear what Rawlsian judges should do...

...First, most rights advocates now embrace part of the Marxist critique and defend not only the traditional list of civil and political liberties but also more equal distributions of income, wealth, education, job opportunities, health care, and other goods essential to secure the welfare and dignity of the disadvantaged...

...Conspicuously absent from these basic liberties are capitalist market freedoms: to own commercial property, to appropriate what one has produced, to inherit or to pass on one's possessions...

...Hobhouse, R.H...

...Scholars allied with the critical legal studies movement carry this challenge one step further...

...342 • DISSENT...

...Judges would decide cases in the name of hypothetical rather than actual people...

...The "difference principle" seems not to leave enough moral room for democratic decision making, or for distributions according to desert—not even for Nobel Prizes or Most Valuable Player awards (unless they can be shown to maximize the life prospects of the least advantaged...

...Grand theorists as different as Plato, Hobbes, and Mill wrote as if their conceptions of justice were justified for all people at all times...

...Ideological divisions of the past die harder in academic discourse than in actual politics...

...The enormous interest in A Theory of Justice among legal scholars has been plausibly attributed to the opportunity it seems to offer American courts to expand the domain of individual rights...

...It seemed to provide a straightforward and rigorous method by which public officials could solve hard political problems: for every policy alternative, add up the social benefits, subtract the social costs, and implement the alternative that maximizes net benefits...

...Does the duty to further Rawlsian principles apply in some special way to judges...

...Utilitarianism is everywhere on the defensive...

...Democratic critics point out that such an expansion carries serious moral costs and reveals a significant tension within Rawls's theory: to the extent that courts read more rights into the Constitution, they narrow the domain of democratic decision making created by the fundamental political rights of citizens (to vote, to hold office, to influence public policy, and so on...

...The reluctance to accept the political meaning of Rawlsian principles is even harder to explain because on a wide range of political issues—such as compensatory education, equal pay for equal work, national health insurance, antitrust, and plant-closing legislation—many of Rawls's critics support positions that are both politically liberal and economically egalitarian...

...The result has been to stir up old ideological debates between partisans of liberty and equality, individual and community, equality of opportunity and equality of results...

...A Theory of Justice offers no philosophical rationalizations for the interests of any dominant class or group...

...And so will you and so will every other rational person, because in the "original position" there is nothing to distinguish us from each other...

...Or, it may be that Rawlsian judges should be more "activist" and read a defense of welfare rights into the equal protection clause of the Constitution...

...Third, grand political theory is once again alive in the academy...

...He recognizes, as some of his admirers do not, the intellectual gap that exists between an ideal theory of justice and a theory applicable to any nonideal society...

...Is a society unjust if it falls short of maximizing benefits to the least advantaged...

...Not knowing my social class, I will choose principles that guarantee fair equality of opportunity and maximize my life prospects if I turn out to be among the least advantaged citizens...

...If this is a practical implication of Rawls's theory, then it is more compatible with democratic decision making than its critics suggest...

...Rawls's most distinctive contribution to the tradition of grand theory is his defense of a method of justification, which he calls "reflective equilibrium...

...But believers in rights lacked systematic philosophical arguments against the opposing Benthamite intuition that rights are nothing more than "nonsense on stilts...

...Michael Sandel's Liberalism and the Limits of Justice and Alasdair Maclntyre's After Virtue suggest that we must choose between a Rawlsian politics of individual rights, in which atomistic individuals languish without a shared morality, and an Aristotelian politics of the common good, in which solidaristic citizens fare well without the protection of individual rights...

...Many of our constitutionally guaranteed rights—free speech, religion, press, suffrage, and so on340 • DISSENT Political Theory are among those that would be chosen by people in the "original position...

...But to invoke my intuitions, or anyone else's, against Rawls's does not constitute a devastating criticism of his theory—not only because his intuitions may be morally better, but more important because the method of "reflective equilibrium" welcomes just this kind of criticism...

...How much health care, housing, and guaranteed income would satisfy the presumed Rawlsian right...

...Here (in everyday social life) we are all "free and equal moral persons," led by our sense of "justice as fairness" to accept the "original position" as the fairest way to agree about political principles, to forge a new social contract...

...Philosophers still contend over which understanding is morally correct, but utilitarianism is now on the defensive against Rawls's argument that contract theory is a better public philosophy for a democratic society governed by a bill of rights...

...It also explains why other liberals and socialists have been more critical of Rawls's theory...

...The second part requires "fair equality of opportunity" for all, equalizing not only job opportunities but life chances...

...The Rawlsian idea that was accepted most readily is the "original position," a hypothetical situation in which a "veil of ignorance" deprives us of all knowledge of our natural talents, moral views, and place in the social order so that we can rationally choose principles of justice that are not biased in our own favor...

...This is a liberalism for the least advantaged, a liberalism that pays a moral tribute to the socialist critique...

...Most of these (like Ronald Dworkin's theory of equality) resemble Rawls's theory in significant ways, but even those that are radically different would not have been conceived, as Michael Walzer acknowledges in Spheres of Justice, without Rawls's work...

...Harder to justify are the rejections of Rawls based upon contradictory misrepresentations of Rawlsian principles...

...Unlike the parties to Locke's social contract, Rawlsian "contractors" must choose distributive principles without knowing their relative wealth or their social class...

...Why both libertarians (like Robert Nozick) and democratic socialists (like Walzer) would criticize Rawls's theory is clear enough...

...Nothing short of securing their highest practicable life prospects will satisfy Rawlsian demands...

...All three of these changes are attributable to the influence of A Theory of Justice...

...Unaware of whether they are capitalists or workers, they will care more about securing a decent life for themselves and their children than about protecting the profits of property owners...

...But he follows a long line of liberal philosophers—John Stuart Mill, Henry Sidgwick, T.H...

...Outside the "original position," it seems more reasonable to call a society unjust if it fails to provide everyone with decent life prospects (adequate not optimal health care, housing, education, and income) and with the freedoms necessary to participate as an equal citizen in influencing the remaining distributions...

...The common intuition that the rights of individuals should not be sacrificed for the sake of social welfare somehow persisted alongside the academic ascendancy of utilitarianism—a testimony, perhaps, to the tenacity of our moral intuitions...

...It also requires compensatory education and limits on economic inequalities so that "in all sectors of society there should be roughly equal prospects of culture and achievement for everyone similarly motivated and endowed...

...Liberals can consistently support the theory's egalitarian economic implications because the first principle, the liberal core of Rawls's theory, rejects equalization at the expense of the basic liberties of any citizen...

...Joining Socialist Criticism and Liberal Theory To appreciate the political substance of Rawls's theory, it is best to begin with the first and most specific change that Rawls has wrought: the integration of socialist criticism into liberal theory...