Freedom and Fairness
by Carmen Pavel
Philosopher John Rawls, who has died at 82, is widely regarded as the most influential philosopher of the 20th century a sort of John Maynard Keynes of political philosophy. He is credited with reviving political philosophy in an age of behaviorism. Because of his topical focus and the intuitive appeal of his ideas, he has left a long train of devoted followers and has significantly shaped mainstream political discourse.
Defenders of liberty, however, have good reason to question key elements of Rawls's thought.
Rawls has worked on the same idea his entire academic life, constantly developing, recasting, revising and expanding it. The centerpiece of Rawls's work is justice as fairness the view that whatever else the institutions of a society stand for, they should primarily embody a concern with setting up a structure in which all individuals within that society are provided with a set of basic goods.
The first major embodiment of this idea is A Theory of Justice (1971), which has two primary aims: one is to create a framework for thinking about morality, and second, to put forth a theory of politics based on moral considerations derived from the framework. The book provided a Kantian alternative to utilitarian moral and political theory, which was predominant at the time Rawls wrote it.
To derive his theory, he asked readers to perform a thought experiment, under a "veil of ignorance". Imagine that you are part of society but you do not know whether you are a man or a woman, rich or poor, smart or dumb. What kind of principles would you choose to guide the institutions of your society? Rawls assumed that everybody would want to play it safe and not risk being stuck at the bottom. He concluded from this that all basic rights should be distributed to everyone equally, unless unequal distribution is to the advantage of the least well off (the difference principle).
There are many important theoretical and practical difficulties with Rawls's approach, as noted by critics such as Murray Rothbard, Robert Nozick or Anthony Flew. One I will mention here. What separated Rawls from at least some varieties of utilitarianism is his emphasis on the separateness of persons. He famously said:
"Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many."
The main thrust here is this: that some people have more cannot make up for other people having less. Murray Rothbard, who forcefully reinstated the Lockean principle of self-ownership, ruled out that a group of people could morally use another to further goals without the latter's consent. The same is true for Robert Nozick, with his emphasis on individual rights as side-constraints.
Rawls seems to be more concerned with our separateness as consumers. He claims that justice requires that people cannot have less than their equal share of the community's pool of resources, while Rothbard and Nozick think that people should not have less than what they are able to acquire by peacefully minding their own business. they believe that justice has something integrally to do with production, and to buttress our dignity as producers of what we bring to the table, not merely as consumers of what we take from the table. No one person or group may be sacrificed for the good of others, and this is true, contrary to Rawls, for poor and rich people alike. Rights express the inviolability of individual people, who cannot be sacrificed for a greater good, and people who happen to have more than their "assigned share" are no exception to this rule. There is no social entity on the altars of which people can be sacrificed. There are only individual people, different individual people, with their individual lives.
Responding to some of the criticism  sparked by his book, Rawls radically modified the structure of justification for his theory of justice in his next book, Political Liberalism (1993). He sought to decouple moral and political philosophy and look instead for a justification for political principles in a shared background culture. The basic premise of this book is that the fact of reasonable pluralism people tend to diverge when they reason about the good life is fraught with moral significance. Modern, western societies contain individuals or groups with diverse comprehensive conceptions of the good, and uniformity is not possible without a considerable degree of coercion, which, in Rawls's view, is an evil that should be avoided.
We can hardly find anything anti-liberal about this approach. But here is the punch line: since reasonable pluralism is bound to be a permanent feature of our society, we should try to devise political arrangements based on an overlapping consensus of values shared by the comprehensive views that already exist and have a high probability of being part of the social landscape in the future. Whose values are counted? What comprehensive conceptions are deemed reasonable? Only those that accept the basic premises of the western liberal-democratic tradition. Since quite of few people are comfortable with liberal democratic principle, a stable political arrangement will arise that will command the allegiance of its citizens.
Rawls runs the thought experiment of the original position again and ends up with the same two principles of justice as in his earlier book: maximum equal liberty and fair equality of opportunity, the first enjoying lexical priority.
Beyond questions about the circularity of his argument , more interesting is the radical new way in which Rawls conceives of political philosophy. Metaphysics, or questions about ultimate values are no longer relevant to political philosophy, as it was for most of its history, including Rawls's earlier work. Politics is characterized by epistemic abstinence, and it should now refuse to make any judgments about the truth of particular moral doctrines or comprehensive views. The criterion for the conception of justice Rawls himself proposes is no longer what is true but whether it is reasonable.
Joseph Raz, in an illuminating critique  of Rawls's project, sees this as a move from philosophy to practical politics, which undercuts the whole purpose of political philosophy.
The new Rawls considers that the aim of political reasoning is not to direct us to true, moral ideals but to achieve certain practical political goals (stability, social unity) through reasoning about constitutional essentials. This move has almost transformed him into a politician, interested in give and take, exploring common grounds for agreement on policies and principles, without questioning their basis or validity.
Rawls would have probably disagreed with this characterization of what his work is about, but I think Raz is correct. And, in an academic environment were you can practically hear almost all political philosophers saying, "we are all political liberals now," a concern lingers about the course Rawls set for political philosophy, by suggesting that it should be no more than a sort of bargaining politics. Principles and policies stand or fail with the general assent; their success is no longer measured by their truth, but by their majoritarian appeal.
This turn gives Rawls a chance to sneak in his favored philosophical premises, by downplaying the extent of the controversies about core values in western liberal societies. As William Galston points out in his latest book , Rawls refuses to conduct philosophy in classical terms, i.e. questioning the assumptions that underlie moral theories, and instead takes democracy as a point of departure. Rawls does not offer any reason to show why we should refuse non-democratic modes of governance, except that they are not widely supported by the basic elements of the background culture.
Nor is Rawls's ambition of creating a freestanding political theory a tenable one. Galston also questions the legitimacy of Rawls's new (non)foundations by pointing out that the neat separation that Rawls employs between public and non-public reasoning is hard to maintain. Freestanding, public reasons cannot be understood as detached from comprehensive views.
We do not normally think, nor should we be asked, to separate our political ideas from our comprehensive personal morality as if they are two different realms of logic or morality. The fact that constitutive values may be seen as freestanding is an illusion. The most basic of our constitutive values reflect clashing moral understandings.
What that means is either that the consensus we can reach on political matters is minimum, or none at all. In either case, we should accept this feature of our political life and strive to make the best of it. The alternative is what Rawls unsuccessfully sought to immunize his theory against: force other people to live by our own rights through coercion.
Rawls on International Justice
Having settled the question of domestic justice, Rawls moves on in The Law of Peoples (1999) to define the principles of justice that should guide the behavior of political societies, or peoples as he likes to call them, in their interactions with each other. Rawls departs in some important respects from his domestic conception of justice. The most striking difference is that he does not favor distributive justice at the international level (although he has room for a limited duty of assistance).
Rawls has two concerns with the difference principle at the international level. International distributive justice is continuous and it is not targeted (it has no cutoff point). The arbitrariness of the distribution of natural resources among countries should cause no difficulty. He imagines this scenario where two countries have roughly the same amount of resources and one decides to pursue a sound economic policy, thereby increasing its wealth and the other chooses some disastrous, irresponsible economic path. In this case, Rawls claims that the country that chose a sound economic policy does not have a duty to help the other country, and the question of redistribution should not arise. Plus, he adds that resource poor countries have done well historically, so the redistribution of material resources should not even arise.
But this argument, which granted is correct, strikes at the foundation of Rawls's own system, as David Gordon perceptively pointed out in his review  of the book. If resources do not determine whether countries fare well in time, why should they determine how individuals do? Why do we still need domestic redistribution, which is continuous and has no cutoff point, no target? Presumably we can imagine a scenario (and there are plenty real-life stories) where two individuals start with the same amount of money, one of them spending it wisely and the other one wasting it all.
Why should this scenario not carry the same type of import for domestic distributive justice? Why should we continue to provide the uninspired spender with continuous material support? It seems that in the light of what Rawls has to say about international distribution, we have no good reason. In the words of David Gordon, "Rawls's effort to halt his difference principle at society's borders fails".
Boundaries of Thought
One assumption underlies all of Rawls's moral and political philosophy, a central moral thesis that links individuals to their political communities: people are committed to share in one another's fate. The moral basis of political communities reflects a shared understanding of political obligation, of rights and duties. Consequently, political institutions can and should reflect values beyond a mere modus vivendi (political cooperation motivated simply by self-interest), like the difference principle.
This also explains partly why Rawls thinks that individuals have different moral duties toward fellow citizens than toward people from political societies other than their own.
Most of us find ourselves lumped in political societies with others we do not know, cannot identify with, and we feel no duty towards them beyond simple civility.
Why the boundaries of political philosophy seem to map the boundaries of communities, and not more (the whole world) or less (the individual person or the family) is unclear and Rawls himself does not provide any grounds for the moral relevance of bounded communities. Moreover, the actual geographical boundaries of many states have historically been drawn quite arbitrarily, and those who might have cared for each other and who were part of naturally evolving communities have been separated in different countries. Why should those people be forced to share in anyone's fate?
If we value communities, we value them because we choose to belong and identify with the people they contain. And even if we affectively identify with the members of our community, it still remains an open question what kinds of duties we are supposed to have vis-a-vis them. Moral identification is not enough to ground the duties that Rawls thinks we have toward our fellow countrymen.
Rawls will be remembered for the egalitarian ideal of justice as fairness, developed within the medium of analytical political philosophy, in a manner that is detached from history and economics. These are the features of his thought that make him a hero among contemporary political philosophers, but an unlikely champion of freedom.
Notwithstanding, Rawls's theory remains a formidable competitor for the theories proposed by classical liberals and libertarians. Because he has shaped the main conversation in political philosophy, true liberals need to take on his powerful legacy if only to better understand and strengthen the positions they are defending.
 Although Rawls was very charitable to his critics in general, making substantial concessions to liberals and communitarians in revised versions of his books, he never responded to the libertarian counter-arguments. Political Liberalism, for instance, contains no reference to Robert Nozick, one of his most prominent libertarian critics and his colleague at Harvard.
© Carmen Pavel 2002
Carmen Pavel is a Ph.D. candidate in political philosophy at Brown University.
This article was originally posted on the 6th December at http://www.mises.org. It is reproduced here by kind permission of the author.
John Rawls died peacefully at his home in Lexington, Massachussets on 24 November 2002. He was 81. John Rawls was James Bryant Conant University Professor Emeritus at Harvard. A brief obituary can be found at http://www.news.harvard.edu/gazette/2002/11.21/99-rawls.html.