Constructing justice for existing practice: Rawls and the status quo

Philosophy and Public Affairs

Volumn 33, Issue 3, 2005, Pages 281-316

  James, Aaron ^a  

^a NONE

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EID: 33845390409     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2005.00034.x     Document Type: Article

References (61)

1. John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999).
2. As is argued by "cosmopolitans" such as Charles R. Beitz, Political Theory and International Relations, rev. ed. (Princeton, N.J.: Princeton University Press; Beitz, "Cosmopolitan Ideals and National Sentiment," The Journal of Philosophy 80 (1983): 591-600; Beitz, "Rawls's Law of Peoples," Ethics 110 (2000): 669-96; Thomas Pogge, Realizing Rawls (Ithaca, N.Y.: Cornell University Press, 1989); Pogge, "An Egalitarian Law of Peoples," Ethics 23 (1994): 195-224; Brian Barry, "International Society from a Cosmopolitan Perspective," in International Society: Diverse Ethical Perspectives, ed. David R. Mapel and Terry Nardin (Princeton, N.J.: Princeton University Press, 1998).
3. Rawls, The Law of Peoples, p. 83.
4. That is, different goods might be in question, the parties may have greater or lesser information, and they may or may not be risk averse or self-interested. What cannot vary is only the "formal constraints of concept of right."Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), pp. 130-36, hereafter TJ.
5. Rawls, The Law of Peoples, pp. 32-33, 86.
6. Rawls, "The Law of Peoples," in Collected Papers: John Rawls, ed. Samuel Freeman (Cambridge, Mass.: Harvard University Press, 1999), pp. 532-33. For parallel remarks, see Rawls, Political Liberalism, paperback ed. (New York: Columbia University Press, 1996), p. 262.
7. Rawls, "Justice as Fairness,"in Collected Papers, ed. Samuel Freeman, p. 47, n. 1.
8. Ibid., p. 48.
9. Although Rawls's notorious "heads of households"assumption suggests that individuals as such were not the loci of his concern in the domestic context either.
10. As argued in. For skepticism whether the global and domestic contexts are analogous, see Brian Barry, "Humanity and Justice in Global Perspective,"in Ethics, Economics, and the Law, ed. J. R. Pennock and John W. Chapman (New York: NYU Press, 1982).
11. This hardly implies that only relations between whole societies matter. Any of various practices associated with globalization can, for instance, still have principles of social justice (even if the Law of Peoples would forbid using force to promote their fulfillment). I outline a broadly Rawlsian account of fair trade in my "Distributive Justice without Sovereign Rule: The Case of Trade,"Social Theory and Practice 31 (2005). Thus Rawls can admit what Sen calls "plural affiliations," and his view is not essentially a form of "national particularism,"as suggested in Amartya Sen, "Justice across Borders,"in Global Justice and Transnational Politics, ed. Pablo De Greiff and Ciaran Cronin (Cambridge, Mass.: MIT Press, 2002).
12. G. A. Cohen, "Facts and Principles," Philosophy & Public Affairs 31 (2003): 211-45 argues that principles grounded in any facts, not simply facts about existing practices, cannot be fundamental. I present a Rawlsian reply in an unpublished manuscript.
13. See, e.g., Brian Barry, Justice as Impartiality (Oxford: Clarendon, 1995); Allen Buchanan, "Justice as Reciprocity Versus Subject-Centered Justice," Philosophy & Public Affairs 19 (1990): 227-52; Allan Gibbard, "Constructing Justice," Philosophy & Public Affairs 20 (1991): 264-97; Robert E. Goodin, "What Is So Special About Our Fellow Countrymen?" Ethics 98 (1988): 663-86; Amartya Sen, "Open and Closed Impartiality," Journal of Philosophy XCIX (2002): 445-69.
14. Rawls, "Two Concepts of Rules,"in Collected Papers.
15. Rawls, "Justice as Fairness," p. 53.
16. Proponents of "luck egalitarianism"include G. A. Cohen, "On the Currency of Egalitarian Justice," Ethics 99 (1989): 906-44, and Richard Arneson, " in Equality: Selected Readings, ed. Robert Westmoreland and Louis Pojman (New York: Oxford University Press, 1997). On the trend toward interpreting Rawls in these terms, see Samuel Scheffler, "What Is Egalitarianism?" Philosophy & Public Affairs 31 (2003): 5-39. Although the position is suggested by some of Rawls's well-known remarks in the first edition of A Theory of Justice, revisions made as early as 1975 for the German translation (the original appeared in 1971) make it plausible to hold that much of the suggestion is rhetorical overstatement. For discussion, see Thomas Nagel, "The Writings of John Rawls," in Concealment and Exposure (New York: Oxford University Press, 2002), pp. 82-83.
17. Rawls clearly distinguishes the Difference Principle from the principle that "undeserved inequalities [of birth and natural endowment] call for redress" or "are somehow to be compensated for" (TJ, pp. 100-01). Scheffler in "What Is Egalitarianism?" draws attention to this on p. 25.
18. Robert Nozick, Anarchy, State, Utopia (New York: Basic Books, 1974). Nozick would of course deny that justice depends on existing practice.
19. As Rawls suggests when he says of the circumstances of domestic justice: "if one supposes that the concept of justice applies whenever there is an allotment of something rationally regarded as advantageous or disadvantageous, then we are interested in only one instance of its application"(TJ, p. 8).
20. TJ, pp. 110 and 334-36. Rawls does note that "it would be possible to choose many of the natural duties before those for the basic structure without changing the principles in any substantial way" (TJ, p. 110). Yet he is quite clear that the natural duty of justice is an exceptional case. Unlike many natural duties, and like "obligations"such as the principle of fairness, Rawls says "the duty to support just institutions" presupposes "principles for social forms."He assumes an established basic structure and its principles for all "principles for individuals,"despite his admission that many could be independently defended, largely for the sake of simplicity. See TJ, p. 110.
21. Even if we assume Rawls would accept a stronger, broadly Kantian duty to leave the state of nature and submit to the rule of law, what this entails might vary according to prevailing circumstances and practice. It may not involve submission to the modern state, but, as in many parts of present-day rural Africa (not to mention pre-modern ages), submission to local custom and dispute resolution by a tribal chief or local elders. One might argue that we need a still stronger, practice-insensitive version of the duty of natural justice in order to explain how existing practices might be in some sense fundamentally unjust. I consider whether Rawls has adequate critical resources below.
22. For similar views, see Arneson, "Equality and Equality of Opportunity for Welfare," Cohen, "On the Currency of Egalitarian Justice," Liam Murphy, "Institutions and the Demands of Justice," Philosophy & Public Affairs 27 (1998): 251-91, and Amartya Sen, "Rights and Agency," in Consequentialism and Its Critics, ed. Samuel Sheffler (Oxford: Oxford University Press, 1988), pp. 187-223.
23. Such as the overlapping domains of sovereignty described by Thomas Pogge, "Cosmopolitanism and Sovereignty," Ethics 103 (1992): 48-75.
24. Rawls, "Justice as Fairness," p. 48. Moreover, Rawls assigns no positive value to equality in itself (Rawls, The Law of Peoples, pp. 113-15), following T. M. Scanlon, "The Diversity of Objections to Inequality,"Lindley Lecture: University of Kansas (1997). For discussion of similar considerations, see Charles Beitz, "Does Global Inequality Matter?" Metaphilosophy 31 (2001): 95-112.
25. In The Law of Peoples, Rawls takes an international order for granted without arguing or even overtly supposing that this is our only practically possible option. He does suggest, following Kant, that a world government would either be "a global despotism" or "rule over a fragile empire torn by frequent civil strife" (p. 36). He does not clearly take this to show that an order much like our own is inevitable, however. If he had, the "laws and tendencies" that make it inevitable would have to be identified independently of the order in question. The only fixed "laws and tendencies" Rawls mentions are those of the idealized existing social order itself (see p. 11). Indeed, Rawls emphasizes the possibility of institutional reorganization. He says that, in contrast with laws and tendencies such as "the fact of reasonable pluralism," "the limits of the possible are not given by the actual, for we can to a greater or lesser extent change political and social institutions and much else" (p. 12).
26. As suggested above, this is not to say we cannot imagine any practice we like and ask what justice would require of it, if it did exist. The claim is simply that any principles we take to apply under hypothetical conditions will not necessarily tell us what fundamental requirements of justice actually require of us. We need to consider existing practices only insofar as this is our question.
27. Christopher Ake, "Justice as Equality, " Philosophy & Public Affairs 5 (1975): 69-89, p. 73; Amartya Sen, Inequality Reexamined (Cambridge, Mass.: Harvard University Press, 1992), pp. 92-93; Larry Temkin, Inequality (New York: Oxford University Press, 1993), p. 292.
28. A similar difficulty arises for an appeal to "priority for the worse off,"the idea that benefits matter more, morally, the worse off people are. (See Thomas Nagel, "Equality," in Mortal Questions [Cambridge: Cambridge University Press, 1979], and Derek Parfit, "Equality and Priority," Ratio 10 [1997]: 202-21. When people are already very well off, it may be better if benefits go to less well-off persons, but this may seem to have little urgency as compared to other worthy goals. One can insist that it is nevertheless of overriding importance to shift benefits even to those quite well off, simply because failing to do so allows an injustice. This, however, can seem unmotivated.
29. The threat to security is of course the dictator's favorite excuse (not to mention the wartime president who quickly curbs civil liberties). I take the fact that this permission can be abused to reflect its genuine presence.
30. This is what Rawls calls "The Priority of Justice over Efficiency and Welfare," (Ibid., p. 302).
31. Although Rawls need not treat every social practice that could properly be said to exist as though it is as legitimate as any other. There is no presumption, for instance, that even "the practice of slavery" in the antebellum South might have been just if only it were better organized; its moral status is in question until it is determined what our basic structures are and what principles apply to them.
32. Rawls, TJ, p. 7; Rawls, The Law of Peoples, pp. 6-7.
33. Here "interests" can be broadly construed to include any of the range of claims or objections people might raise in practice against the structures in question. He can remain neutral between different theories on which of these claims give rise to a demand for justification.
34. Of course, gender, kinship, and religious structures also profoundly affect most human interests. I cannot consider the matter in detail, but the thought may be that reasonably just political structures will often substantially compensate for significant harms within these other structures, while reasonably just structures of these other kinds are less likely to substantially compensate for the significant harms of political structures. For Rawls's discussion of why political injustice has created the "great evils of human history," see The Law of Peoples, pp. 6-7.
35. For Rawls's emphasis on reciprocal and not merely mutual advantage, see Political Liberalism (hereafter PL), p. 16.
36. Rawls suggests that mutual respect is an "essential part of the basic structure...of the Society of Peoples" on p. 122 of The Law of Peoples.
37. Rawls does say that the idea of a well-ordered society is an "idea of practical reason," whose content is gleaned by "reflect[ing] on how these ideas [ideas of practical reason] appear in our practical thought" (PL, p. 108). This may seem to suggest that the idea of a well-ordered society is not a creature of existing practices and their interpretations, but this is not necessarily the case. One possibility is that the idea of a well-ordered society appears in our practical thought because it is implicit in the public political culture of a democratic society. Its content will then be as much a matter of social interpretation as a priori reflection. Another possibility is that the abstract and unspecified idea of a wellordered society is itself a priori, while its content-that which grounds original position reasoning-is given by what is implicitly accepted in a public political culture.
38. Ronald Dworkin, Law's Empire (Cambridge, Mass.: Belknap Press, 1986), pp. 65-66.
39. In this way, Rawls denies Walzer's thesis claim that a suitable sociological interpretation of a "sphere" of human activity and the social meanings of its associated goods will determine their criterion of just distribution (Michael Walzer, Spheres of Justice [New York: Basic Books, 1983]). Because original position reasoning has a role, social meanings are not, by themselves, sufficient. The practice-dependence of original position reasoning also distinguishes Rawls from Dworkin, who writes, "a theory of justice is not required to provide a good fit with the political or social practices of any particular community, but only with the most abstract and elemental convictions of each interpreter" (Dworkin, Law's Empire, on p. 425, n. 20).
40. I do not mean to defend this perhaps controversial conception of social interpretation, but merely to suggest that it is the most natural one for Rawls's purposes. I therefore ignore possible objections.
41. In PL, p. 109, n. 15, he mentions "H.L.A. Hart's minimum content of natural law" (H.L.A. Hart, The Concept of Law [Oxford: Oxford University Press, 1961], pp. 189-95). He also flirts with the strong requirements for a legal system defended by Philip Soper, A Theory of Law (Cambridge, Mass: Harvard University Press, 1984). His approach in The Law of Peoples is similar, but he qualifies his endorsement of Soper's approach on p. 66, n. 5.
42. Rawls, The Law of Peoples, p. 27.
43. Rawls, PL, p. 16. Rawls also mentions as essential for cooperation that each person can see the scheme as advancing his or her own good, in terms of primary social goods, and that the scheme coordinates behavior by rules that are generally accepted, and known as accepted, as proper guides for conduct.
44. In Political Liberalism Rawls is of course very concerned with reasonable disagreement in conceptions of justice. His solution to the problem involves appeal to the generally accepted "fundamental idea" of society as a scheme of cooperation, which he spends comparatively little time defending.
45. As is required for interpretive charity generally. See, for instance, Donald Davidson, Inquiries into Truth and Interpretation (Oxford: Oxford University Press, 1984).
46. See Richard Moran, Authority and Estrangement (Princeton, N.J.: Princeton University Press, 2001) on "transparency," pp. 60-65.
47. I take this to be the standard governing interpretation generally, whether of society or of art or of literature.
48. This is not a significant constraint if our considered judgments are strongly influenced by existing practice. I assume there are reasonably uncontroversial considered judgments for which this is not the case.
49. Rawls is quite explicitly concerned in the domestic context only with "citizens...normally active and fully cooperating members of society over a complete life" with "physical and psychological capacities within a certain normal range" (Rawls, "Social Unity and Primary Goods," Collected Papers, pp. 368-69). For parallel passages, see Rawls, PL, p. 20, and Rawls, "The Law of Peoples," p. 531. In the international context, ideal theory similarly considers only "well-ordered" societies. See Rawls, The Law of Peoples, pp. 64-68.
50. For example, Buchanan, "Justice as Reciprocity Versus Subject-Centered Justice," p. 237.
51. As on some interpretations of David Gauthier, Morals by Agreement (Oxford: Clarendon Press, 1986), p. 268.
52. T. M. Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard University Press, 1998). This possibility is in accord with Sen's claim (in Sen, "Open and Closed Impartiality") that original position reasoning must be supplemented. I take the natural alternative to be a contractualist framework such as Scanlon's, not the Smithian, "impartial spectator" approach that Sen recommends.
53. For example, the relevant principles might include: Principles of which proscribe various forms of force, coercion, or other control; principles of Collective Due Care, which require precautions for the exercise of dangerous forms of power; and principles of Collective Exclusion, which prohibit the turning away of refugees, boat people, those seeking political asylum, and so on.
54. See, e.g., Rawls's cryptic comments on "unity by appropriate sequence" (PL, pp. 261-62).
55. Rawls, The Law of Peoples. The principles are enumerated on p. 37. For the role of the decency assumption, see pp. 63ff.
56. Specifically, a society's arrangements must conform to a "common good conception of justice." For Rawls, a conception that does not include guarantees of security and life would not be reasonably characterized as a common good conception, although a conception that does not honor rights to freedom of association and democratic participation might be so characterized, at least under certain circumstances. Human rights therefore include rights to security and life, but not rights to freedom of association and democratic participation. See Ibid., pp. 65-80.
57. Rawls, "Justice as Fairness," p. 59.
58. To be sure, Rawls famously denies that participants can lay greater contributionbased claims to social goods as compared to other participants. The talented are not being "taken advantage of" by the less talented who may seem to offer less but equally do their part.
59. Rawls, The Law of Peoples, p. 8.
60. Ibid., pp. 23-30.
61. In the way of explanation, Rawls offers only the methodological remark: "We must always start from where we now are, assuming that we have taken all reasonable precautions to review the grounds of our political conception and to guard against bias and error" (Ibid., p. 121). This approach is natural given Rawls's aim to "reconcile...us to our political and social condition," and not simply to describe what may be an unlikely utopia (Ibid., p. 11).