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ABSTRACT: Rawls' theory of justice as fairness involves a central contention that principles of justice essential to the structure of a constitutional democracy must be viewed as political in contrast to more comprehensive moral, philosophical or religious doctrines. The concept of justice is not its being true to an antecedent moral order and given to us, but its being congruent with our self-understanding within the history of justice as political is not a mere modus vivendi, for it embodies an overlapping consensus that does have a moral basis. Critical reaction to Rawls has been that what is simply a consensus within a tradition of public discourse cannot afford an adequate criteria of moral justification, and that Rawls cannot define the moral basis for justice as fairness without some reference to a comprehensive theory of the good. But it will be argued that critics are missing what is central to Rawls' theory of moral justification as what he sees to be the outcome of a process of "wide reflective equilibrium" in which principles of justice initially given within a tradition are weighed against rival moral theories and in relation to scientific theories of human nature and society in order to establish what seems "most reasonable to us."
It is the central contention of Rawls that the principles of justice essential to the structure of constitutional democracy must be characterized as political in contrast to more comprehensive moral, philosophical and religious doctrines on which agreement is not possible within the pluralism of modernity, and that the concept of justice is not its being true to an antecedent moral order, but its congruency with our self-understanding within history and traditions embedded in our public life. But Rawls emphasizes that the concept of justice as political is not a mere modus vivendi, for it embodies an overlapping consensus by specifying the fair terms of cooperation between citizens that are regarded as free and equal. This consensus encompasses the concept of primary goods: basic right and liberties, powers and prerogatives of office; income and wealth; the basis of self-respect. It also encompasses the "difference principle": in which economic inequalities are allowed so long as this improves everyone's situation including that of the least advantaged. The overlapping consensus, Rawls further specifies, is not a consensus simply in accepting a certain authority, or simply as compliance with certain institutional arrangements.
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Critical reaction to Rawls' approach to defining the concept of justice as fairness has centered upon an alleged incoherency or problematic in his contention that principles of justice must be seen as political in opposition to a more comprehensive view of the good, while yet also believing that justice as political does have a moral basis. In the view of Patrick Neal, Rawls' theory of justice involves an unresolved tension between political and metaphysical implications. Rawls, on the one hand, speaks of justice as fairness as a political concept independent of controversial philosophical, moral and religious doctrines, and arising from an interpretive understanding within the traditions of constitutional democracy. Yet Rawls believes, at the same time, that justice as fairness is not to be interpreted as a Hobbesian mosus vivendi; it has a moral component, serving as a political agreement between citizens viewed as free and equal persons, an "overlapping consensus" which more comprehensive philosophical, moral and religious doctrine can accept in their own way. In Neal's view, Rawls is thus "oscillating" between metaphysical and political interpretations. "Interpreting it along political lines, Rawls must be careful to keep it from being rendered too politically, lest it become Hobbesian. Yet the remedy for the specter of Hobbesianism is a dose of Kantianism, and this serves only to take justice as fairness beneath the surface, philosophically speaking, raising the specter of controversial metaphysical arguments or turning justice as fairness into a sectarian moral ideal." Neal is convinced that if justice as fairness is to remain a moral theory, as Rawls wishes, the conventional beliefs of contemporary citizens must be something more than mere conventions. (2)
William Galston mounts a similar objection against Rawls' theory of justice. Rawls' concept of a political constructivism, he notes, embodies principle of justice that is constituted by a procedure of construction without appeal to prior moral facts. But the difficulty is that constructivists must offer some support for the specific conception of the person they choose to employ. "Here they encounter a dilemma. If they appeal to something external to the person to justify their choice, they return to intuitionism through the back door. If they do not, they must concede that the formal concept of personality is compatible with a wide variety of conceptions, each of which leads to somewhat different moral conclusions through the procedure of construction." Galston points out that Rawls' appeals to a conception of justice, appropriate to a democratic culture. But unless one has dome prior reason for preferring democratic to non-democratic cultures, this puts justification back one step without resolving it. "Rawls' reconstructed theory is divided against itself. It is explicitly Kantian but implicitly Hegelian. It avoids formalism only at the cost of abandoning the Kantian standpoint above history and culture. Instead, the content of its principle is provided by the shared beliefs of the democratic community." Galston acknowledges that Rawls' deviation from Kant in the name of social practices is necessary and proper to overcome the dualism of Kant's moral theory; to bind the circumstances of ordinary life into our first principles in order to reduce the gap between theory and practices. "But it is also to forget that the point of having first principles is to judge our institutions and practices and not merely codify them." (3)
Neal and Galston provide critical focus upon difficulties in Rawls' concept of justice as political, but they do not put into fair perspective the merits of Rawls' approach to moral justification in face of a pervasively anti-foundationalist trend in contemporary philosophical analysis that has put into question any possibility of principles of justice as self-evident apriori constructions of human consciousness; a growing consensus upon the conventionality of rules and criteria of what counts for rational speech and action; the plurality of language games and forms of life. The problem, then, is how it may be possible to establish a criteria of moral justification in which the fact of our inevitable involvement within a historical-cultural context does not preclude the possibility of a reasonable consensus upon minimal principles of justice essential to the structure of constitutional democracy that does not require agreement upon more comprehensive moral theories. It is here that Rawls' concept of a political constructivism provides an approach to moral justification that would seek to avoid both the inadequacies of classical foundationalism as well as moral skepticism or cultural relativism.
The concept of political constructivism, Rawls contends, stands in opposition to "rational intuitionism" as self evident truths about good reasons fixed by a moral order independent of our concept of the person and the social role of morality. Under a constructivist view, a moral conception can establish only a loose framework of deliberation relying on powers of reflective judgement developed by a public culture and shaped by that culture. But what Galston's critique misses is that Rawls is not contending that principles of justice are authorized simply because of their having the sanction of particular historical traditions or social practices. The process of justification, he contends, is how a moral judgment fits in with and organizes our considered judgments in "reflective equilibrium." Justification is a mutual support of many considerations, of everything fitting together into a coherent view, where first principles and particular judgments appear on the balance to hang together reasonably well in comparison with alternative theories. Justice as fairness is thus a hypothesis that principles chosen in an original position are identical with those that match our considered judgments and so these principles describe our sense of justice. But such judgments must make allowance for possible irregularities and distortions so that when a person is presented with an initially appealing account of his sense of justice, he may well revise his judgment to conform to its principles even though the theory does not fit his existing judgments exactly. From the standpoint of moral philosophy, then, the best account of a person's sense of justice is not the one which fits his judgment prior to his examining any concept of justice, but rather the one that matches his judgment in reflective equilibrium. "This state is one reached after a person has weighed various proposed conceptions and has either revised his judgments to accord with one of them or held fast to his initial convictions." (4)
Rawls' concept of wide reflective equilibrium is thus not an uncritical defense of principles of justice simply by reference to what is given in tradition or social practices or conventions. This is a point clarified by Kai Nielsen's interpretation of what is basic to Rawls' concept of WRE as well as his own version of this concept. We cannot avoid starting from some consensus in regard to institutionalized norms which are generally accepted. But essential to Rawls' theory is the process of wide reflective equilibrium by which initial convictions may be subject to modification. Wide reflective equilibrium, Nielsen points out, is also a coherence theory of justification: "It seeks to produce and perspicuously display a coherence among: (a) our considered moral convictions; (b) a set or at least a cluster of moral principles; (c) a cluster of background theories including most centrally moral theories and social theories, among them social theories that are quite definitely empirical theories about our social world and how we function in it and (d) an empirically based broadly scientific concept and account of human nature." The method of wide reflective equilibrium, Nielsen observes, does not permit certainty. "But knowledge with certainty is not pleonastic, and fallibilism is not skepticism or subjectivism. It is rather late in the day to have nostalgia for the Absolute, though perhaps such nostalgia is a kind of recurrent Philosophical Disease." (5)
What Galston finds objectionable in Rawls' theory of justice is that it lacks what is essential to the moral foundation and principles of democracy that can have a claim to universality. While it is a mistake to insist that all meaningful norms are universal, it is essential to define a bedrock morality not metaphysically, but rather with reference to general features of human beings and of the circumstances in which theory is ordinarily placed; a minimal code common to different communities, and values across not merely within their boundaries. "Although the outline of prohibition against murder, deception, betrayal and gross cruelty must be filled in with the details of a particular culture, they nonetheless provide the framework for any possible moral life." (6)
Rawls' concept of wide reflective equilibrium does not rule out the possibility of a minimal core of moral principle that could be established through critical dialogue between different cultures. But what would be more controversial is whether such dialogue could establish a commonality in regard to the concept of rights and liberties that Rawls associates with the structure of Western constitutional democracy. It is thus understandable that he prefers not to consider the question of whether justice as fairness is applicable to other societies and that what is more essential is that we be able to establish what is possible as a minimal consensus within our own history and traditions of public life. But if Rawls' theory of justice is not directed to the question of universality as an antecedent moral order that could be a basis of a cross cultural commonality, his concept of justice is not, for that reason, lacking a reasonable concept of objectivity. For the concept of constructivism, he points out, is not simply a radical choice: "The notion of radical choice, commonly associated with Nietzsche and the existentialists finds no place in justice as fairness." But Rawls is arguing that rational intuitionism is also unnecessary for objectivity. "We have arrived at the idea that objectivity is not given by the point of view of the universe. Of course, it is always possible to say if we ever do reach general and wide reflective equilibrium that now, at last, we intuit the moral truth fixed by a given moral order; but the constructivists will say, instead, that our conceptions of justice, by all the criteria we can think of to apply, is now the most reasonable for us." (7)
(1) John Rawls Political Liberalism (New York: Columbia University Press, 1993), 147.
(2) Patrick Neal, "Justice as Fairness: Political or Metaphysical," Political Theory (February 1990), 42-47.
(3) William A. Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State (New York: Cambridge University Press, 1991) p. 136, 138.
(4) Rawls, A Theory of Justice (Cambridge, Harvard University Press, 1971), 48
(5) Kai Nielsen, After the Demise of the Tradition (Boulder, Westview Press, 1991), 200, 208
(6) Galston, Liberal Purposes, 38-39.
(7) Rawls, "Kantian Constructivism in Moral Theory," Journal of Philosophy (September 1980): 568, 570.