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ContraContract:
A BriefagainstJohnRawls'
Theoryof Justice
LEON H. CRAIG
University of Alberta
64
LEONH. CRAIG
Furthermore, the strength of his theory's main appeal is meant to proceed more
from the manner in which it was generated than from a final outcome it seeks to
realize. Though Rawls has firm ideas on what this outcome should be like, and
no doubt hopes we joint in finding it attractive, nonetheless the rightness of it is
underwritten by its being the outcome of society functioning through his notion
of justice. If we claim not to find his vision of the ultimately good society very
appealing, we are probably outside the audience Rawls is primarily addressing.
His ambition is to offer a theory "which best approximates our considered judgements of justice and constitutes the most appropriate moral basis for a democratic society" (p. viii).2 This is to say, Rawls assumes acceptance of, among
other things, a fundamental individualism3that places a premium on broad individual freedoms or rights, either as inherently good or as a primary means to
some further good (as opposed, say, to treating liberty as the residuum after
claims of good social order have been met). The tradition of thought is familiar
as Liberalism, after the manner of Locke, the Utilitarians, and J.S. Mill. Parenthetically, I do not agree with Rawls that Rousseau is a party to this view, since
his idea of the freedom society ought to afford (that is, as outlined in Treatise du
contrat social) is not one of personal liberty.4 More to the point, Rawls no doubt
appreciates his limited persuasiveness with, for example, Platonists or Marxists.
But, if we are at all sympathetic to liberal democracy, Rawls desires that we direct
our attention to how his principles emerged, and if we cannot fault his conception
there, he would expect us to accept the outcome (so long as it is not intuitively
monstrous), for it is just.
Since it is the "fairness" of the op that is meant to lend Rawls' theory of justice
its clear appeal over alternative notions, I shall examine its structural features
with some care. It will further this purpose to sketch first the main outlines of the
or and the nature of bargaining that transpires therein and which purportedly
leads to two basic principles of justice; here we necessarily abstract from a discussion richly detailed. Subsequently, however, certain of these details will be
brought forward for scrutiny as well.
What we are asked to imagine, then, is a gathering of competent adults divested
2Most commentators on Rawls understand the limitations he sets for his project and seem
generally to endorse them. For instance, Michael Lessnoff ["John Rawls' Theory of Justice,"
Political Studies XIX(1), 63-80] considers "one of the most interesting features of Rawls'
theory"to be the claim "thatfrom his conception of justice can be derived the essential norms
of liberal democracy"(p. 67).
3Rawls, replying to other critics, protests against reading too much into this implicit individualism: "the theory does not hold that human beings are self-sufficient;nor that social life
is simply a means to individualends. Persons'more particulardesires and preferences are not
thought to be given, but (rather) to be shaped by social institutions and culture. The view is
individualisticin the minimal sense of stipulating that society is composed of a plurality of
human persons for whom an equal liberty and the right of dissent is to be maintained."See
his "Reply to Lyons and Teitelman," in The Journal of Philosophy LXIX(18), 557. It is my
opinion that the effects of even this "minimalsense" of such individualismare quite pervasive,
and I intend to argue against it, partly on Rawls' own grounds (i.e. his moral psychology).
4A good exposition of this aspect of Rousseau's thought is Patrick Riley's "A Possible Explanationof Rousseau'sGeneralWill," in the American Political Science Review LXIV(March
1970), 86-97.
des principes gendrauxde justice sociale dans la mesure oui elles demeurent encore
aujourd'huiau cwturde la probldmatiquenormative.Deuxiemement,Craig considere
que l'argumentationemploydepar Rawls pour ddfendreson principed'optimisationde
la libertdn'est pas trdspersuasivepuisqu'ellerepose sur un suppose consensus concernant la libertdde pratiquereligieuse,consensus qu'elle drige en paradigmeapplicable
a toutesles libertes.Enfin,I'auteursouligneque, dans la structuration
des circonstances
ddliberativesde ses principes,Rawls dcartea priori toute considdrationdes theoriesnon
libdralesde la justice.
of all particular knowledge about themselves: they deliberate behind a "veil of
ignorance" as to the historical period in which they live; the personal attributes,
deficiencies, and talents they enjoy; the socioeconomic situation they are born
into; and the actual prospects life presents them; in sum, without any knowledge
that might burden the proceedings with partiality. They share a primordial equality (which Rawls suggests "corresponds to the state of nature," p. 12), based on
a common ignorance of their own and each other's fate, a common complete
knowledge of all general laws of natural and social science, a common appreciation of the fact that cooperating in a society with other men yields many benefits,
but that it entails as well chronic conflict. Perhaps most important, they share a
common desire to find a means for resolving all such conflict in a manner mutually acceptable; that is, they are motivated to seek principles that will define justice in social settlements. Each person is presumed to be self-interested and
rational in the sense that he seeks to advance his own prospects for a good life,
though he lacks all knowledge of what such a good life comprises. He knows only
that whatever final good he pursues, his chances for success are enhanced by his
having a larger share of "primary goods." These are understood to be the universal means for the pursuit of any human end and consist of certain goods naturally distributed (genetically, such as health, intelligence, beauty, talent, vigour,
imagination), and certain goods distributable through the social system (rights
and liberties, opportunities and powers, income and wealth).5 It is the latter that
is the concern of social justice in the first instance, although it is conceivable that
deficiencies in the former may be compensated for by gaining a greater portion of
the latter.
5In the process of refining his theory, Rawls adds "self-respect"as a social primary good
enjoying a "central place" (p. 62), as "perhaps the most important" (p. 440); the many
problems involved with this idea can be ignored for purposesof our discussion.
LEONH. CRAIG
66
Contra Contract
67
Rawls has hypothetically constructed and its appropriateness as a set of delimiting parametersfor moral argument.
Rawls argues that the contractarian approach is preferable to classical Utilitarianism (although not necessarily in this case over the "more modern" conception of Utilitarianism employing an "average utility," i.e., per capita, principle),
because the classical version cannot adequately cope with the problem of population size (see p. 162), whereas it can be treated as a decision by POP.Population size is merely one of several problems of intergenerationalsocial justice which
Rawls believes his theory can deal with, and which have been especially vexing
for liberal thought (another being capital savings; his argument is meant to accommodate social development generally). POP can in effect choose what size
of group humanity is to be, and presumably would choose such that the material
resources of the world would not be strained in providing amply for all. On closer
examination, however, this kind of decision requires transcending the limitations
of the oP conception. Stated somewhat facetiously, what these persons are being
asked to approve is the possibility of their not existing once the veil of ignorance
is removed. Given the attention Rawls has paid to the awesome responsibility and
serious nature of decisions made in the (albeit hypothetical) OP, how each person
therein must be assumed to exercise great care in not jeopardizing his future
prospects, some scepticism on this matter seems appropriate.
Let us be clear about what is at stake here; to repeat, it is the credibility of the
deliberative assumptions (as Rawls has cast them) that is being tested. In discussing his characterization of OP and POpelsewhere, Rawls would seem to have
successfully protected himself from criticism. He declares, "the original position
is not to be thought of as a general assembly which includes at one moment everyone who will live at some time; or, much less, as an assembly of everyone who
could live at some time. It is not a gathering of all actual or possible persons.
[This would be] to stretch fantasy too far." Following this reasoning through,
Rawls concludes that each person in the oP, being divested of particularity, is
equally representative in his reasoning of all people: "Therefore, we can view the
choice in the original position from the standpoint of one person selected at random." (p. 139) This seems plausible enough until one considers a problem such
as "population size," which Rawls introduces for his own reasons (demonstrating
a way in which his contractarian approach is superior to classical Utilitarianism).
As one ponders restricting population as a matter of justice, the limitations inherent in Rawls' individualistic perspective emerge with devastating results. How
can the reasoning of any de-personalized individual reasoner be representative of
all people (conceived individually), when the collective term "all" is a variable
dependent upon decisions made in the op? That is, how can reasoning represent
individuals POPdecide not to create? One may conclude that there ought to be
fewer people in the world (or parts thereof) in order that each person may have
more goods, but only if one is assured one will be among those left after the
reduction.
Rawls solicits agreement on this point by surreptitiously providing such assurance, but by so doing, renders his resolution of the issue chimerical. For notice
that, whereas one might induce widespread assent to the general (and quite abstract) proposition that population should be limited, one cannot expect a similar
68
LEONH. CRAIG
Contra Contract
69
One need not defend the position of this last statement in order to make a point
against Rawls. One need only call attention to his failure to fully appreciate its
implications for his project. Rawls states: "It is taken for granted ... that [PoP]
know the general facts about human society. They understand political affairs
and the principles of economic theory; they know the basis of social organization
and the laws of human psychology. Indeed, the parties are presumed to know
whatever general facts affect the choice of the principles of justice" (p. 137). This
implies a substantial consensus about "political affairs,""economic theory," "social
organization," and "human psychology" that I contend does not exist, even (or
perhaps especially) among specialists. These are indeed factual matters, but there
are imposing barriers to their empirical settlement, some of which Rawls occasionally concedes (see p. 121). Whosoever would presume to adumbrate such "general facts about human society" must be prepared to defend his description, since
it will be in important respects speculative and personal, and thus challengeable.
Indeed, and I shall be returningto this point repeatedly, it is "knowledge" about
the real nature of man that is at the centre of much moral controversy: what are
man's real needs, how is character formed, how does he learn, what are his real
possibilities, how does he (or can he) fit into the rest of the natural world, etc.
Rawls has his own view of "moral psychology" (as he calls it), and devotes chapter 8 of his treatise to it, but by doing so, he implicitly acknowledges that the
question (or constellation of questions) is philosophically arguable, not something one would expect to settle "scientifically."' And whatever psychological
knowledge one imports to the oP must have something to recommend it besides
its being congenial to moral conclusions one intuitively wishes to see established.
Rawls is concerned simply with removing sources of bias or partiality from
deliberations in the original position. The idea is that if POP reason using only
knowledge from which all particularity has been abstracted, they will be able to
formulate and agree upon principles of justice, and such principles will be those
Rawls has explicated (or at least ones basically similar). One can readily allow
that biases resulting from self-interest and/or provincialism are a common source
of discord in moral discussion. But this is far from concluding that such biases
are either the universal source, the most basic source, or even the most common
most of the major issues here is Alan Ryan's The Philosophy of the Social Sciences (London
1970). Phenomenological studies offer another source of criticism directed at any attempted
science of man modeled on the physical sciences. See, for instance, Maurice Merleau-Ponty's
Structure of Behavior (Boston 1963) or Phenomenology of Perception (London 1963),
especially the firstfour chapters.
9Michael Teitelman in "The Limits of Individualism" (Journal of Philosophy LXIX(18),
545-56) offers a critique of Rawls in the spirit of Marx's early writings that supplementsour
own critique in interesting ways: "it is obviously of great importance what conception or
model of individualsis permittedin the basis of the theory. If we allow the appropriateassumptions in the model, we can guarantee the inference to any principles we would like to
generate" (p. 546). Teitelman charges that Rawls has prejudicedhis theory of justice in that
very way. We agree with the spirit of Teitelman's criticism, but our own diverges from it
somewhat on this point. We argue that Rawls' theory of justice is not even wholly consistent
with Rawls'own model of man.
Lessnoff, in "JohnRawls' Theory of Justice,"also recognizes the "knowledgeproblem"we
refer to when he concludes that Rawls' conception is "a social contract theory, and highly
illuminatingabout the merits of that style of theorizing. But it also shares some of the defects
of social contract theory: it assumes that we know more about human nature than we really
do; and it assumesthat human nature is more uniform than it probablyis" (p. 78).
70
LEON H. CRAIG
source of disagreement. Rather, it seems to be general views of man and the world
that differentiate (at least in part) the respective moral advice of, for instance,
Plato, Aquinas, Hobbes, Kant, Mill, Marx, etc. No doubt these authors' general
views were strongly influenced by their respective particular experiential circumstances, but what abstraction process would POPhave access to (that I certainly
lack) which would allow POPto sift the general truth from the presumably biased
original presentations? And which of such views is to provide the basis for deliberations behind the veil of ignorance? Clearly, principles of justice will vary according to which of these perspective is adopted. Are POP to look at the world
through the eyes of Plato or Hobbes, Marx or Mill (to mention only some important examples of differentiable perspectives)? The hypothetical construction
of an "original position" is an illusory solution for coping with moral debate, and
perusing the shelves of any general social studies library makes concrete the
problem of deciding clear criteria for what would be admitted behind the veil of
ignorance. Will Marx's Capital be included? Michels' Political Parties? Machiavelli's The Prince? Freud's Introductory Lectures on Psychoanalysis? de Tocqueville's Democracy in America? Skinner's Beyond Freedom and Dignity? Gibbon's
Decline and Fall of the Roman Empire? Morgenthau's Politics Among Nations?
If the entire corpus of social and psychological writings is made available to PoP,
construction of the oP has not accomplished Rawls' intention, as the debate would
continue indefinitely, in a manner with which all are familiar. I am not arguing
that there is no objective truth about man. But I am insisting that the substance of
such truth remains at the crux of moral debate, as is exhibited throughout the
tradition of political and moral philosophy. Fundamental issues cannot be resolved by appealing to an original position simply because it was structured to be
impartial (assuming such a structuringis possible, of which I am not convinced);
for bias is not necessarily the obstruction, but rather lack of agreement on what
is the truth about man.'0
Nor does it seem possible to formulate a substantive theory of justice which is
somehow neutral in regard to these conflicting "world views." Although Rawls
is primarily concerned with ensuring an outcome compatible with liberal democracy, he seems to think he has preserved just such a neutrality. But as I shall attempt to demonstrate in a subsequent section of this paper, in this he is mistaken.
There are other reservations one can hold about the original position. For
instance, other critics have observed that any choice by PoP is a kind of gamble,
and that what Rawls is really arguing for is to place the safest bet. Specifically,
Rawls suggests that a person in the original position should choose principles
"for the design of a society in which his enemy is to assign him a place" (p. 152).
But the special reasons he invokes here are not convincing, and this is a serious
shortcoming, for the mainstay in the argument for his conception of justice is that
it would be the clear choice of all PoP."1
I direct attention to this criticism that others have argued against Rawls, for it
loAs W.C. Runciman has shown in a more limited but illuminating way, frequently the
determinationof what the facts are effectively decides the moral question ("Sociological Evidence and Political Theory," in his and Lasletts' Philosophy, Politics, and Society, second
series;Oxford 1962).
11David Lyons, in "Rawls Versus Utilitarianism" (The Journal of Philosophy LXIX(18),
535-45), seems to provide an especially damaging critique of Rawls' argumenton this point.
71
Contra Contract
IV
I should like now to examine Rawls' account of how POPwould reason towards
accepting his first principle of justice concerning compatible equal liberties. Chapter 4 of his treatise is devoted to this task, and the core of his argument is the
discussion of freedom of conscience, which he takes to be paradigmatic of the
case for liberty generally.
Rawls does not explicitly attempt to defend liberty as a "final good," that is, as
a moral end. One has the impression that he does so regard it (based, for instance, on his discussion of Kant, p. 251-7); his program only seeks to employ
it as a "primarygood," which is part of a set of universal means to all final ends.
He is not burdened with demonstrating that liberty is inherently valuable, i.e. for
the development of a moral personality, in the fashion of J.S. Mill or T.H. Green.
Nor does Rawls attempt to analyse "freedom." He is content to describe "liberty"
72
LEON H. CRAIG
as having this form: "this or that person (or persons) is free (or not free) from
this or that constraint (or set of constraints) to do (or not to do) so and so"
(p. 202). Thus, in his view, freedom from restraint is all that is immediately relevant to his discussion of social justice; the practical potential for using freedom
can be treated as a separate problem, the worth of freedom (p. 204).
Rawls describes the basic freedoms he means to be defending as "the liberties
of equal citizenship," which include "liberty of conscience and freedom of thought,
liberty of the person, and equal political rights" (p. 197). Liberty of person is to
be understood as including equality before the law. He intends to treat freedom
of conscience as the paradigmatic case for all the freedoms, and as a test of the
validity of the specifications attached to the original position. It will "provide an
occasion to clarify the meaning of equal liberty and to present further grounds
for the first principle" (p. 205). It can be employed as a "fixed point," allowing
us to check the results of his conception of justice, since (according to Rawls)
the "question of equal liberty of conscience is settled" (p. 206). Rawls had earlier
stated his intention to work on the problem of justice from both ends, dialectically
correcting his scheme until the original conditions and the results of the principles
arrived at therein squared with our intuitive ideas (p. 20; see also his comments
about "reflective equilibrium," p. 48-52). Hence, his discussion on this point
must do double duty: it is both a pattern and a test. Now, since I would claim
that, at the very least, it is far from a "settled question" in any philosophic sense
(regardless of what accommodations liberal society has come to on this matter),
its utility in the latter regard is immediately suspect. I think a closer examination
reveals its failure on the former count as well.
However, before turning to such an examination, I should point out that two
issues frequently undistinguished in everyday life are separate questions philosophically and may be a source of some confusion about Rawls' discussion of
"liberty of conscience." One is a metaphysical question included under the rubric
of "free will vs determinism," and concerns whether we are or are not (more or
less) free to think what we please, on religious questions or any other. Regarding
this issue, Rawls' entire analysis employs a quite thoroughgoing determinism, as
this is the consistent basis of his argument against his having to incorporate considerations of moral desert into a theory of justice (pp. 7, 15, 73-74, 104, 108,
312).12 The other issue, freedom of religious practice, is a question of political
ethics, and as such is Rawls' principal concern here. In any event, neither of these
questions is "settled" philosophically speaking (at least not in any meaning of
the word we are familiar with), and it seems preposterous to suggest that they are.
I should like to begin with a detailed analysis of Rawls' argument purporting
to show that Pop would choose a principle which guaranteed freedom of conscience. Given its key role in his analysis, it is all the more curious that the argument is disappointingly scant. It reduces to this: since POP do not know what
their respective religious views will be, nor whether they will be with the minority
or the majority in their faith, "it seems equal liberty of conscience is the only
principle that the persons in the original position can acknowledge" (p. 207).
Rawls believes that his examination of the question demonstrates other im12We are indebted to a working paper by Professor W.E. Cooper (University of Alberta)
for a particularlyilluminatingdiscussion of the extent and import of Rawls' determinism.
Contra Contract
73
portant points. First, it argues for the serial ordering of his two principles, since
PoP "must choose principles that secure the integrity of their religious and moral
freedom"; consequently, the principle which underwrites liberty of conscience
must be met prior to and apart from considerations of distributive justice. Second, it clarifies the role of the state vis-a-vis liberty; it is to regulate religion, not
authorize it, for "liberty of conscience is limited, everyone agrees, by the common interest in public order and security" (p. 212). On Rawls' view, his treatment is compatible with the absolute character of religious faith (p. 207). Presumably, if God wills justice among men as Rawls conceives it, and if He prefers
the worship of those in a free society (those who, in Rawls' words, "highly value
the liberty to examine one's beliefs"), then acknowledging the principle of equal
liberty does not contravene the absolute claims of religion. We should like immediately to point out, however, that these "ifs" are for God to decide; should He
be a jealous God, and we be on His side, His Will would be conclusive "argument" against our tolerance. One must say about Rawls' PoP, as Max Lerner did
about John Stuart Mill, that the idea of freedom was his true religion.13
This point brings out my basic misgiving about Rawls' manner of dealing with
this question. His rationale, which here is found to be threadbare at best, proceeds at all only by virtue of the original position being godless, notwithstanding
his repeated disclaimers to the contrary. He has built into the structure of that
situation a secular priority; if religious claims conflict with the secular claims of
good social order, the state decides in favour of the latter. This is not surprising.
Rawls' project necessarily commits him to secularism, since a substantive notion
of God would make gratuitous a purely profane examination of justice. If God has
any business with people, one would expect it to include the authorizing of values.
So, I do not fault Rawls for his secular bias; it is in the nature of this enterprise.
Rather, I fault him for attempting to make the issue of religious tolerance carry
his general argument for liberty, since it surely is one question he decided a priori
in the way he cast his project. I think that the problem is actually deeper and
broader than that, however; it is a matter of not fully appreciating what is involved
in the serious holding of values,"1religious or otherwise. A fuller exploration of
this must await the final sections of the paper, but for now I simply wish to call
attention to how Rawls' approach ill-equips us for seriously examining the panoply of religious questions that have social consequences, such as blasphemy,
proselytization, pacificism, oaths, etc. Rawls attempts to skate around the potentially tough problems by asserting that religious liberty may be limited out of
concern for public order, and such concern "must be based on evidence and ways
of reasoning acceptable to all" (p. 213), which precludes revelation, and thus
possibly what is essential to living a religious life (i.e., communion with God as
1 Brian Barry, in "Liberalismand Want Satisfaction, a
Critique of John Rawls" (Political
Theory I, (2), 134-53), develops a line of argument against Rawls that is complementaryto
that given here. Barry observes, "the choice to be made is a choice between differentkinds of
society, each with advantages and disadvantages,a liberal society and an orthodox society."
Rawls has not successfully shown that POPwould choose a liberal society. "Everything ...
turnson how importantone thinks orthodoxy is" p. 148-52.
14Theterm "value"is used throughout this paper despite my misgivings about it, given that
such use implies an acceptance of the peculiarly modern and quite problematic "fact-value"
distinction. Still, the term is so thoroughly established in today's philosophical discourse that
avoiding it involves considerableclumsiness, especially in discussing a work such as Rawls'.
74
LEONH. CRAIG
one of His favoured). In short, one can be sure the liberal notion of religious
tolerance is compatible with a serious religious commitment only if one knows
that God is a liberal, a notion about which one may well harbour doubts.15
Rawls argues that justice requires a full and equal (albeit regulated) tolerance
for all religious views, and that a limited tolerance will not do. He suggests that
those who offer toleration only within certain limits they judge compatible with
civic virtue, as do Locke and Rousseau, are mistaken in their estimates of the
range of incompatible views that may abide together peaceably (p. 215-16). His
evidence here is historical, since he finds that even atheists and Catholics need
not disturb social harmony. We submit that, given a broader view of history, there
is ample evidence to the contrary, and that what Rawls is really citing is the decline of all religious values which necessarily attended the ascendance of the
secular state.16 Were religion still a power at large in men's lives, the advice of
Locke and Rousseau (not to mention Machiavelli and Hobbes) as to its treatment would bear heeding for anyone interested in the primacy of a stable secular
political order.
Rawls innocently introduces (in germinal form, and for another purpose) our
own explanation for religion's decline when he turns to discussing "toleration of
the intolerant" (p. 216-21). He maintains the question has several parts. First,
he concludes that an intolerant sect has no right to complain if it is not tolerated
by others, since a complaint must appeal to shared principles which would be
absent in this case. But others may complain whenever "equal liberty is denied
without sufficient reason." Thus, the liberty of intolerant persons or groups may
be legitimately curtailed, but only when they offer a clear threat to the equal liberty
of others, which is basically the same conclusion reached by J.S. Mill.
Rawls further observes that a society ordered in accordance with his two principles of justice would be inherently so stable that, ordinarily, intolerant sects
could not pose such a threat. In fact, Rawls feels that when an intolerant sect
enjoys the blessings of a tolerant society over an extended period of time, "it will
tend to lose its intolerance and accept liberty of conscience." I agree, but not
exactly for the reason that Rawls suggests (that as a matter of moral psychology,
a person acquires an allegiance to what he perceives as beneficial). It is rather
more likely that this is the natural outcome of the corrosive effect full tolerance
has on all values. The substantive value base which the person defends or asserts,
15DavidLewis Schaefer, in a very scathingreview of Rawls' book ("The 'Sense'and Non-sense
of Justice," Political Science Reviewer ini (Fall 1973), 1-41), finds Rawls' unexamined
prejudices especially unsettling: "this book is not, as its author claims, a work of political
philosophy. Rather, it is an ideological tract ... [which] accords so well with the political
dogmas that are currentlypopular in the academic community ... [that] it is unlikely to receive
much severe testing from that quarter"pp. 1-2. Schaefer's general philosophic perspective,
as well as certain specific strandsof his criticism,parallelour own; he turns them to somewhat
differentaccount,however.
16Strangelyenough, this is basically the same conclusion J.S. Mill reached in On Liberty:
"yet so natural to mankind is intolerance in whatever they really care about, that religious
freedom has hardly anywhere been practically realized, except where religious indifference,
which dislikes to have its peace disturbedby theological quarrels, has added its weight to the
scale." But whereas Mill, unlike Rawls, had read the historical evidence correctly, he seems
not to have profitedthereby;both fail equally to appreciatethe internal rationale of why this
is so.
Contra Contract
75
that which he is intolerant about, is simply worn down. Thus, it is less a case of
the intolerant person being converted, than of his being reduced to the same low
level of value commitment. Tolerance seems to presuppose a low ambient intensity of value-holding, just as intolerance is an outcome of taking values seriously.
Probably neither tolerance nor intolerance is, properly speaking, a value. I am
not inclined to defend "intolerance" per se, nor would I know how to go about it
were I so moved; but I am prepared to defend the serious commitment to right, and
whatever intolerance (to wrong, presumably) this practically necessitates. Tolerance, on the other hand, does have its defenders who cast it as something inherently valuable. I think, however, it is more accurate to consider that what is being
defended in such cases is, for the most part, a kind of pragmatic social peace purchased at the price of the serious and full pursuit of other values. No witness to
the destruction that has plagued the twentieth century can remain insensitive to the
value of such a peace. But I suggest (because it seems to be frequently overlooked)
that its price is high in terms of a forfeiture to realize other values. And it is a cruel
irony, if not evidence of a deeper problem, that modern liberal man has paid the
price, but not gained the peace.
V
In an immanent sense, arguing a full case against Rawls would require offering a
counter theory. Of course, one need not be limited in choosing the best idea of
social justice by what might seem most appealing in the original position described
by Rawls, although one may count PoP's preference as evidence concerning what
is best for us, or even as conclusive evidence (which Rawls means for us to do).
It is not my ambition here to offer such a counter theory. But perhaps the circumstances will allow something more modest. First, this section will be devoted to
indicating how the oP has been structured by Rawls so as to eliminate in a priori
fashion effective considerations of conceptions of justice that differ fundamentally from Rawls' own: that is, the limitations imposed on POPare such that they
can only give serious attention to conceptions of justice that are individualistic
and in the liberal tradition, such as contractarianism and Utilitarianism. And,
importantly, I seek to show that such a "ruling out" is illegitimate on Rawls' own
grounds. Second, the following section will sketch enough of a counter position to
demonstrate that Rawls' theory of justice is not neutral in regard to different
visions of what is good for man; specifically, there is an incompatibility between
Rawls' first principle and the classical (i.e., Platonic) understanding of human
nature.
Perhaps the best place to begin is by examining Rawls' rejection of the "principle of perfection" (p. 325-32). As he put it, this principle directs society "to
arrange institutions and to define the duties and obligations of individuals so as
to maximize the achievement of human excellence in art, science, and culture"
(p. 325). In order for the principle of perfection to be employable, it "must provide some way of ranking different kinds of achievements and summing their
values." But because POP"are assumed to be committed to different conceptions
of the good" (though they do not know what these conceptions are specifically),
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"they do not have an agreed criterion of perfection that can be used as a principle
for choosing" and that would allow them to rank the relative merits of different
religious, aesthetic, and moral ideas, so that they can arrive at a consensual choice
as to what constitutes the best life. "Thus it seems that the only understanding that
persons in the original position can reach is that everyone should have the greatest
equal liberty consistent with a similar liberty for others" to advance his ends.
Anything less risks "a loss of freedom altogether to advance many of one's spiritual ends," since such claims might have to be denied in favour of "the higher
social goal of maximizing perfection" (p. 327).
Obviously, the people in the original position can not choose a conception of
justice that most furthers all men's living the best life if the OP (as constituted by
Rawls) denies them the knowledge necessary upon which to base such a choice.
But this hardly counts as a reason for our rejecting perfectionism. Instead, it is
an instance of the kind of knowledge problem referred to earlier that makes us
question the validity of any appeal to the supposed impartiality of the OP. Why
are we to assume (or, for that matter, why should POPassume) that persons have
different conceptions of the good? One might reason that a judgment of value
presupposes a reference to the system of desires of some particular person or
class or persons. Things are good for men only given their interests and what
they wish to do. All they can agree on as good are the "primarygoods" (the means
to all final goods), but this "does not establish a standard of excellence" (p. 328).
It can be agreed that experience bears out the notion that people do in fact have
different conceptions of the good. But the important questions are: why do they,
and what are the real implications of such a fact? What goes into the system of
desires, interests, and what one wishes to do? How does each person decide what
is best for him, what is the right thing for him to do? Allowing that each of us is
not born with a complete vision of the good, but that we do come with this will to
do what is best for us which motivates our rational choices (as Rawls explicitly
recognizes, among other things men must desire justice in some formal sense),
the substance of this vision is filled out in the course of living. If POP"know" just
this much, they could hardly be expected to agree unanimously that the best way
to find out what is good is by each person working independently. Why, for instance, would they not reason that rightness is more likely to be manifested in a
Rousseauistic General Will, than in the will of each? Why not make finding goodness a cooperative affair?Rawls notes that he has not argued "that the criteria of
excellence lack a rational basis from the standpoint of every-day life," but only
that there is no teleological commitment to perfection acknowledged in the OP,
and in any event his conception of justice is neutral with respect to claims of excellence (p. 328). What I fail to understand is why his admitting the rationality
of standards of excellence should not qualify ideas of excellence as part of the
"knowledge" available to POP,and thus to be appropriately taken into account in
generating a conception of justice. I contend that his is not the wiser choice for
PoP, and that it is far from neutral; rather, in its endorsement of general tolerance,
it is actively destructive of substantive ideas of excellence.
If one agrees that rightness of choice has, in some final sense, priority over
process of choosing, then the liberal dogma sanctifying each individual's choosing
his own good must go by the board. In his conception of justice, Rawls (typical
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here of liberal thought) has avoided grappling with the constant moral problems
by simply passing them on undiminished for each person to cope with as best
he can.
VI
Were one familiar only with Rawls and the rest of liberal political thought, he
would find Plato's examination of justice in The Republic curious, for personal
liberty finds no place in the Platonic conception, nor does equality before the law.
Justice, for Plato, is not a procedural matter; it is an integral part of goodness.
When Rawls chooses Utilitarianism as the primary alternative to his own contract
theory, he is operating within the self-imposed parameters of individualistic thinking. Unfortunately, this choice does not provide as revealing a contrast as would
a comparison with the fundamentally different communitarian conception of social
justice, such as that held by the ancients (which Rawls would include under the
rubric "perfectionism"). As mentioned before, it is not my intention to present
in fullness such an alternative. I shall, however, try to sketch part of a position
that, while admittedly a superficial and otherwise inadequate adumbration of
Platonism, is I hope sympathetic to this classical view of man. Let it be clear, I am
not concerned here with demonstrating the correctness of the Platonic theory, but
only with showing that this general account of human nature is incompatible with
Rawls' first principle of justice. In this regard, its correctness is not essential; it
need only be a plausible view of man. Thus, if POPemployed a Platonic "social
science" in their deliberations, they would not likely endorse Rawls' first principle.
Contrary to Rawls' belief that his theory of justice is neutral as regards various
conceptions of the good, a Platonist would find that theory prejudicial to the realization of a good society.
Thus, the starting point is the problematic "knowledge" about man. What must
be fully appreciated is the primordial sociability of man, that his very humanness
is causally dependent upon his being born into an on-going society that metamorphically transforms him from an animal being into a human being. Far from
society being merely a grand arrangement for yielding multiple benefits to the
constituent individuals beyond those possible in solitary life, society is essential
to the very existence of those individuals as humans. Society is certainly composed
of individuals, but its existence is not dependent upon any specific individual;
whereas, the existence of every specific individual is dependent upon society. The
import of this is, first, to grant the claims of society priority to the claims of any
individuals therein.17Second, it is a recognition that the kind of man one is depends fundamentally upon the kind of society into which one is born and lives.
Being social means being inextricably woven into a patterned flux of interpersonal
relations, that one's image and understanding of self is inseparable from that held
17The"Laws"in Plato's Crito elaborate this argumentwith forceful eloquence. Obviously, this
claim does not exhaust the considerations that may legitimately be brought to bear on
questionswhere the interestsof one's society conflict with one's own immediate interests. But
the truth referred to either has the implication specified, or it has no implications at all; it
certainly does not imply the opposite (i.e., that claims of the individual have priority over
those of his society). Liberals, in order to protect their individualism,are obliged to pretend
they can see no implicationsat all.
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withease), andkeyedto
tional,in principlediscernible
(althoughnotnecessarily
the essential nature of being human (the ideal is to have that nature fulfilled).
A society should be ordered to realize the highest potential in every person, and
this is best done through accommodating the natural capacities of ordinary men.
A good society can elicit a high level of virtue from ordinary persons if the citizens
expect it of one another. But in order for this "best" behaviour to become habitual
good behaviour, the demand must be ubiquitous; that is, there must be a social
consensus on what constitutes good character, and this mutual demand pattern
must be ever present in the background of all important interpersonal dealings if
good character is to be created in the individual citizens. This consensus need not
extend to all details of life, but only to those important value questions. Tolerance
for individual preferences is appropriate for most aspects of private life, but it
is inimical to the requisite consensus on fundamental rightness that must permeate
social life if an individual citizen is to experience a consistent and coherent system
of demands for virtue. An ordinary person can be a good person if he has a clear
model of that in which goodness consists. This model must be present in the history
and culture of his people; he must find it exemplified by his leaders; he must learn
it in school; and he must feel it expected of him by his contemporaries; generally,
by all the people he deals with.
It should be clear from what has been said that the refusal to grant a general
tolerance to all views on fundamental value questions does not amount to espousing a totally administered society (totalitarianism), nor does it imply an endorsement of barbarous inquisitions. The problem of maintaining consensus on values
admits of various solutions, and is a practical political concern. Presumably, some
censorship of public communication is required, and close attention to the education of children. But not even this requires legal sanction if general standards of
manners and taste are what they ought to be. Nor is it incompatible with individuals holding deviant views on the fundamentals, so long as these views are kept
private (thus not disrupting the uniform demand pattern), and affect only a
relatively small minority of citizens.
It should also be clear that the problem of what is best remains. How does a
good society decide what its members should endorse consensually? This question
has exercised "perfectionist" thinkers since ancient times. At least it is to their
credit that they felt obliged to grapple with it, however inadequately, rather than
to beg it. I would contend that certain theorists have already offered estimable
visions of a good life (which includes justice), Plato being the foremost. But in
any event, "choosing" the best ethical values for social employment is properly a
social enterprise, carried out by people reflecting upon and deliberating about their
experience with life in its fullness.
Having sketched this much of an alternative view of these issues, I should like
to interject at this point a parenthetical comment on Rawls' position. He too contends that justice (and virtue generally) must be compatible with man's moral
psychology, that the "is" and the "ought" are closely related if not absolutely
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sonalacquaintances
chosenfortheeasewithwhichonegetsalongwith
(generally
in
them),andthe person'sownconscience(a thingthat,giventhe environment
that the liberalfreedomshave not yet been fully exercisedby the populationat
large (due largely to the restraintsof lingeringtraditionswhich steadily grow
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credible set of specifications limiting proposals about justice. I have argued that
two such features, in my opinion each separately decisive, reveal flaws in the oP
as Rawls has described it: first, the problem of population size (and related aspects
of intergenerationaljustice) reveal a paradox in the "rationality"of POP;second,
Rawls fails to fully appreciate the epistemological difficulties attending general
knowledge about human behaviour, and the role of such knowledge in settling
moral questions. Any criticism at the first two levels should be of immediate
interest to Rawls, and those others (friends and critics) who accept the primary
intent of his project: developing a theory of justice consonant with liberal society.
These same persons will no doubt be less moved by criticism at the third level:
that is, challenges to the individualism built into Rawls' approach. Even so, especially given Rawls' own theory of moral psychology, I believe that I have introduced
some considerations that merit their attention. First, a full appreciation of man's
fundamental sociability (operating much as Rawls has described it) renders illegitimate the generation of moral theory from the starting point of wholly discrete
individuals, pursuing personal visions of goodness. Second, it is a markedly impoverished notion of justice that is confined to procedural or instrumental matters
(i.e., Rawls' "primary goods"), and thus not informed by, nor integrated with, a
substantive idea of goodness or rightness. Third, general public tolerance for all
religious and philosophic values is inimical to the role values ought to fill in structuring, directing, and signifying life.
But perhaps it is a mistake to claim that the carnival of values in liberal society
erodes serious commitment to each and every value; there does seem to be one
value that weathers rather well through it all: affluence. A commitment to material
acquisition is apparently still tenable. Historically, this is the only value liberalism
has felt much confidence in anyway. In terms of Rawls' discussion, the universal
means have become the universal end. To be sure, man still conforms. And in
liberal society, it is to the fashions of the day (whether in dress or in thought).
So we are confronted with the irony, not to say paradox, of man conforming to
what is novel, rather than to what is permanent.
One may suppose that the value cacophony encouraged by liberal democracy is
harmless enough for philosophers; they should be able to get on well anywhere.
But in our view, a good society is one that does best by the ordinary man; whereas
liberal society, despite its material success, is providing an increasingly meaningless, morally tawdry life. Our most profound objection to Rawls' A Theory of
Justice is that it continues to accept liberal society as the given.