Rawls, equality, and democracy

Philosophy & Social Criticism

Volumn 34, Issue 3, 2008, Pages 203-246

  Baker, C Edwin ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

Author keywords

communicative action; democracy; difference principle; distribution; equality; Immanuel Kant; John Rawls; just wants; liberal neutrality; social minimum; subordination; toleration

Indexed keywords

EID: 57749131760     PISSN: 01914537     EISSN: None     Source Type: Journal    
DOI: 10.1177/0191453707087251     Document Type: Article

References (49)

1. References to John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), are identified as TJ. Page citations are to the original edition.
2. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), is identified as PL.
3. John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge: Harvard University Press, 2001), is identified as RS.
4. My listing differs in two respects from Rawls' own report (TJ, 504–5). First, Rawls adds that equality applies at the level of rule application. Roughly meaning regularity, equality requires ‘treating like cases alike’. I neglect this formal ‘rule of law’ principle because it does not relate to any controversial aspect of the substantive meaning of equality. Second, Rawls' list of three levels does not distinguish my second level, the modeling of basic equality by the structure of the original position, an issue that merits separate consideration. My primary earlier work on equality, on which this article especially in Part II draws, C. Edwin Baker, ‘Neutrality, Process, and Rationality: Flawed Interpretations of Equal Protection’, Texas Law Review 58 (1980): 1029–96.
5. C. Edwin Baker, ‘Outcome Equality or Equality of Respect: The Substantive Content of Equal Protection’, University of Pennsylvania Law Review 131 (1983): 933–98, contrasts in respect to the first point above with.
6. Peter Westen, ‘Empty Idea of Equality’, Harvard Law Review 95 (1982): 537–96.
7. See C. Edwin Baker, ‘Grounded Universal Commitments’ (MS, November 2006; obtainable from the author at University of Pennsylvania School of Law [ebaker@law.upenn.edu]).
8. Cf. Samuel Freeman, Justice and the Social Contract (Oxford: Oxford University Press, 2007), pp. 18 ff. (distinguishing interest-based [e.g. Hobbes or Gauthier] and rights-based social contract theories).
9. Largely in response to a critique by H. L. A. Hart, Rawls subsequently modifies this principle to refer to ‘fully adequate scheme of equal basic liberties’ (RS, 42).
10. Frank I. Michelman, ‘Morality, Identity, and “Constitutional Patriotism”’, Denver University Law Review 76 (1999): 1009–28 (1011–12). This point about universalism and its not being available in every form of life could justify liberals following (any persuasive) recommendations of Kantian constructivism without accepting new justifications advanced in PL. at 112–14.
11. See Baker, ‘Grounded Universal Commitments’. See also Part III, below.
12. Among democrats who accept that justice at least limits the decisions that the democratic majorities can properly make, some would have these limits found and interpreted by a judiciary, others argue that the public itself (or its elected representatives) should have sole authority to do so, while possibilities such as under-enforcement of constitutional norms give a role to each. Parties at either actual constitutional conventions or the envisioned constitutional stage of Rawls' four-stage sequence could have reason to assign interpretative authority as to some of the requirements of justice to the judiciary while leaving other requirements of justice to determination by democrat majorities. Jeremy Waldron, ‘The Core of the Case Against Judicial Review’, Yale Law Journal 111 (2006): 1346–1406.
13. Lawrence G. Sager, Justice in Plainclothes (New Haven, CT: Yale University Press, 2004).
14. Frank I. Michelman, ‘The Liberal, the Procedural, and the Contractual in Normative Constitutional Conceptions’ (MS, 2007, ch. 2).
15. I read Rawls to relate this concern to ‘choice’ because he notes that unless the least advantaged have these political rights, the better situated may further entrench their position in the settlement of social questions (TJ, 225).
16. Freeman, Justice and the Social Contract, p. 268.
17. Knut Wicksell, A New Principle of Just Taxation (1896).
18. reprinted in Classics in the Theory of Public Finance, ed. Richard A. Musgrave and Alan T. Peacock (London: Macmillan, 1958), pp. 72–118.
19. TJ, 197, n. 2. Rawls emphasized the real world side of this distinction in his reply to Habermas. John Rawls, ‘Reply to Habermas’, Journal of Philosophy 92 (1995): 132–80.
20. See also John Rawls, Lectures on the History of Political Philosophy, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 2007), p. 4.
21. Even if some individuals have conceptions of the good for which certain primary goods are not needed, Rawls notes that, from behind the veil of ignorance, ‘it is rational for the parties to suppose that they do want a larger share, since in any case they are not compelled to accept more’ than they want (TJ, 143).
22. Seeing this point undermines a major criticism of Rawls in Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).
23. At the legislative stage, however, citizens might make adjustments for excusable envy, which undermines self-respect, as something along with wealth and income to be taken into account in applying the difference principle (TJ, 546).
24. G. A. Cohen, like Nozick, largely rejects the distinction in order to recommend a conclusion that is almost the distributional mirror image of Nozick's. G. A. Cohen, If You're an Egalitarian, How Come You're So Rich? (Cambridge, MA: Harvard University Press, 2000).
25. Freeman, Justice and the Social Contract, p. 268.
26. H. L. A. Hart, ‘Rawls on Liberty and Its Priority’, University of Chicago Law Review 40 (1973): 534–55. Although my argument is structurally similar at many points to that made by Hart, it derives from a 1972 conversation with Andreas Eshete who explained the possible rationality of a distribution more egalitarian than that created by the difference principle.
27. Andreas Eshete, ‘Contractarianism and the Scope of Justice’, Ethics 85 (1974): 38–49.
28. Barry Gruenberg, ‘The Happy Worker: an Analysis of Educational and Occupational Differences in Determination of Job Satisfaction’, American Journal of Sociology 86 (1980): 247–71. Gruenberg argues that intrinsic rewards are more satisfying for workers than are extrinsic rewards. Although no evidence shows that workers must learn to appreciate the intrinsic satisfaction of work, they apparently often need to learn to like extrinsic rewards, learning that reduces dissonance if intrinsic rewards are not available.
29. See Freeman, Justice and the Social Contract, pp. 102–9. The matter deserves more attention but I find this development best described either as Rawls interpreting the demands of the difference principle (e.g. his engagement in the epistemic effort of determining the principle's application) or as a modification of the content or role of his two principles. It may be that he thought he was doing the first while actually doing the second.
30. C. Edwin Baker, ‘Counting Preferences in Collective Choice Situations’, UCLA Law Review 25 (1978): 381–416.
31. This assertion puts aside the important difference in standards for measurement, what Sen calls the ‘space’ of equality, under the two approaches: utility in one, an index of primary goods in the other. See Amartya Sen, Inequality Reexamined (Cambridge, MA: Harvard University Press, 1992).
32. Samuel Scheffler, ‘What is Egalitarianism?’, Philosophy & Public Affairs 31 (2003): 5–39.
33. Frank I. Michelman, ‘Welfare Rights in a Constitutional Democracy’, Washington University Law Quarterly (1979): 659.
34. Sen, Inequality Reexamined;.
35. Martha C. Nussbaum, Women and Human Development (Cambridge: Cambridge University Press, 2000).
36. Nussbaum, Women and Human Development, 2000. Rawls' argument with cosmopolitans could be reconsidered if justice requires a culturally sensitive (local) just wants guarantee rather than the difference principle, whose application on a worldwide basis Freeman shows is inconsistent with Rawls' enterprise. Freeman emphasized, however, that Rawls did advocate worldwide provision of basic needs.
37. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999).
38. Freeman, Justice and the Social Contract.
39. Bush v. Gore, 531 U.S. 98 (2000).
40. Baker, ‘Grounded Universal Commitments’.
41. Baker, ‘Foundations of the Possibility of Legitimate Law’ (MS, September 2006; obtainable from the author at University of Pennsylvania School of Law [ebaker@law.upenn. edu]).
42. C. Edwin Baker, ‘Michelman on Constitutional Democracy’, Tulsa L. Rev. 39 (2004): 511–46.
43. C. Edwin Baker, ‘Injustice and the Normative Nature of Meaning’, Maryland Law Review 60 (2001): 578–606.
44. e.g. Sen, Inequality Reexamined;.
45. Ronald Dworkin, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000).
46. Only this restricted, hypothetical, constructed context allows the statement: ‘now obviously no one can obtain everything he wants; the mere existence of other people prevents this’ (TJ, 119). In the real world, Rawls emphasizes that ‘among our final ends are the attachments we have for persons, the interests we take in the realization of their interests, and the sense of justice’ (TJ, 494; see also 522–3; 570–1; 573), ends for which the existence of others is crucial.
47. Samuel Freeman nicely describes how Rawls' intense democratic sentiments lead him to substitute ‘Realm of Ends’ for Kant's phrase. Freeman, Justice and the Social Contract, p. 5.
48. Peter Winch, The Idea of a Social Science and its Relation to Philosophy (New York: Humanities Press, 1958).
49. See Steven H. Shiffrin, Dissent, Injustice, and the Meanings of America (Princeton, NJ: Princeton University Press, 1999).