A Theory of Justice at Fifty

John Rawls’s A Theory of Justice will achieve its fiftieth anniversary this year. The occasion ought not to go uncelebrated – or, at the very least, unremarked upon. Accordingly, I should like to honour it with a few comments, the first being that there is irony latent in the fact Rawls was not just a great philosopher – some would say the greatest political philosopher of the late twentieth century – but a philosopher whose vision of the just society is, in certain ways, markedly American. It has to be ironic, therefore, that this same year should have opened with an event so infamous that it will go down in American history. I mean the Trump-inspired attempt by a violent mob to stage an occupation of the Capitol and thereby sabotage the United States’ democratic process. It would be surprising if the event carried no implications for the way Rawls’s project should be understood.

Before considering what those implications might be, however, some reminders of familiar facts might be helpful. The first is that, with A Theory of Justice, Rawls’s great achievement was, as he put it, “to bring to a higher level of abstraction the familiar theory of the social contract as found, say, in Locke, Rousseau, and Kant.” Fundamental to his own version of the theory is the idea of an imaginary situation – “the original position” as he calls it – within which rational individuals, each of whom stands to gain through cooperation with the others, are pictured as selecting principles which specify the terms upon which they are to cooperate. (Its theoretical role corresponds, roughly, to that played by the state of nature in traditional social contract theory.) The original position is imaginatively constructed in a manner intended to reflect “common intuitions” we have concerning justice. For example, it is supposed that no party to the choice of principles is in a position to coerce any of the others. This is intended to preclude the choice of principles which privilege the interests of a particular individuals or groups, and it reflects the requirement that justice should be impartial. For the same reason the rational choosers are imagined to be placed behind a “veil of ignorance” which precludes them from knowing a great deal of what you or I would normally know. Each is, for example imagined to be ignorant of his or her place in society, social status and, likewise, of his or her “fortune in the distribution of natural assets and abilities”. (“Justice is blind”, as the saying goes.) Rawls argues that, with such strictures in place, his hypothesised rational choosers will select his famous “two principles of justice” (of which more shortly).

Secondly, readers will also know that the amount of literature to have been devoted to the analysis and critique of Rawls’s argument is massive. In particular, much intellectual effort has been spent upon questioning the assumptions underlying the hypothesis of an original position, for example, as well as upon the logical validity of the reasoning by which Rawls derives his principles from that initial hypothesis. In the context of this short article, there would be little point in my contributing to that critique. It’s unlikely that I would have anything original to say. In any case, even if I did, how would I know? I would never have time to check through the work of the others and find out.

The very quantity of material demonstrates the extent to which Rawls had managed to breathe new life into the subject. It had never been true, however, that political philosophy was actually dead, having been killed off by logical positivism and linguistic analysis – not even back in 1956, when Peter Laslett pronounced it to have been just that. Consequently, the familiar legend comparing the appearance of Rawls’s text upon the intellectual scene with the story of raising of Lazarus – with political philosophy in the eponymous role and Rawls in that of the other main character – cannot be true either. It is true, however, that by 1971 the subject had been unfashionable for some decades, — unfashionable in the world of sophisticated, “high” philosophy, that is. Laslett’s comment, though false strictly-speaking, was – if anything — an exaggeration with a foundation in reality.

Moreover, if the quantity of material devoted to the discussion of Rawls’s argument demonstrates the extent to which it established and has continued to maintain a strong presence within political philosophy then, by that very token, it also suggests the extent to which its present familiarity has come to dull a sense of just how original his contribution was. I mean that A Theory of Justice is a work which falls into none of the categories which come so readily to hand in the work of so many of those who write about philosophy these days. Thus, it is not a work of “analytic philosophy”– not strictly speaking; not in the sense in which Russell’s The Philosophy of Logical Atomism or Wittgenstein’s Tractatus – being concerned with the resolution of relatively complex propositions into the simple elements of which they are composed – are works of analytic philosophy. Nor is Rawls a philosopher of “ordinary language” in the way that Gilbert Ryle and J.L. Austin were, and – obviously – neither is he a “continental philosopher.” Such broad categories may be helpful to university administrators, charged with the design of modular courses, drawing up job descriptions, or printing labels for office doors. However, they do nothing to capture the fine detail – the true similarities and differences between the work of different theorists. In fact, if there are comparisons to be drawn between Rawls’s work and that of other twentieth century theorists, it would be more accurate to classify it with works of economic theory such as that of – say – J.M. Keynes.

That said, however, while the originality of Rawls’s text goes a long way to explaining the stir created by its initial appearance, a further explanation is required to account for the hold it has continued to maintain upon political philosophy. How can it be, then, that Rawls’s work has come to maintain such a strong presence over the past five decades (and counting)? To this question the answer lies, if only in part, in the fact that Rawls’s general argument carries implications for quite a few more specific issues. You could say that Rawls supplied fresh perspective on many questions in what has come to be known as “applied philosophy.” There is, however, a stronger explanation for the continuation of Rawls’s contribution, namely the versatility – the openness – of the “contractualist” model he reintroduced into political philosophy. By this I mean the way in which the model provides a framework within which disputes between philosophers taking very different political sides can be conducted.

As for Rawls’s own political affiliations, these are expressed by the two “principles of justice” he sets out to defend. The first, which states (in one formulation) that “Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all” demonstrates that Rawls is a liberal. By this I mean that he is a “liberal,” not in the loose and lazy sense of the term – the sense in which “liberal” is used to apply to anyone whose views are not politically conservative – but that his position is practically equivalent to that taken by the great liberal philosopher of the nineteenth century, John Stuart Mill. Rawls’s list of “basic liberties” thus corresponds, roughly, to the list of freedoms which, as Mill insists in On Liberty, fall within the “sphere of action in which society, as distinct from the individual has, if any, only an indirect interest” and which comprehends “all that portion of a person’s life and conduct which affects only himself or, if it also affects others, only with their free, voluntary, and undeceived consent. (The lists are not identical, of course, but, as Rawls acknowledges in his Lectures on the History of Political Philosophy, “his [Mill’s] principles of justice and liberty, have roughly the same content as the two principles of justice”. Clearly, Rawls thought his own argument to be the better of the two.)

Rawls’s liberalism also shows up in his insistence that the first principle must always take priority over the second, in other words that liberty trumps welfare. As for the second principle itself, this applies to inequalities in the distribution of “primary goods” such as, “income and wealth” and also “rights, liberties, and opportunities”. There are various formulations, but at the core of this “difference principle” there lies the idea that inequalities must be arranged in a way which works to the greatest benefit of the least advantaged. With this, Rawls demonstrates a commitment to redistributivism, the idea that the state may be entitled to remove resources from the relatively advantaged – typically through taxation – in order to improve the situation of the relatively disadvantaged. The principle states the terms upon which redistribution is justified. On this point, Rawls reflects the mood which prevailed in the USA and in Europe during the years which immediately followed World War Two, when there was a clear need for reconstruction; a mood also reflected, in the USA, in President Harry Truman’s “New Deal”. In the UK, it took the form of sweeping reforms — including the introduction of a Welfare State, the National Health Service, and education for all children up to a certain age. (Bear in mind, that, while A Theory of Justice was not published until 1971, it was during the 1940s that Rawls first began work upon the arguments it contains. His first paper on the subject, “Outline of a Decision Procedure for Ethics”, was published as long ago as 1951.)

But while Rawls’s reformulation of liberalism may have been welcome, and his defence of redistributivism timely, the framework his theory set up also suppled a context for – just for instance — arguments for Marxism such as G.A. Cohen’s, defences of the capitalist free market such as Robert Nozick’s, and arguments for collectivist “communitarianism” such as Michael Sandel’s. All are examples of philosophers who defend and define their positions through an account of their relationship to those taken by Rawls. That is my point, and if it is what Nozick had in mind when he remarked that “Political philosophers now must either work within Rawls’s theory or explain why not,” he had a case. There can be no doubt that Rawls achieved his (not inconsiderable) ambition to formulate an alternative – even a successor – to utilitarianism, for it was utilitarianism which had supplied a comparable broad framework of principles for an earlier generation of philosophers. (It’s an attitude typified by a remark of A.J. Ayer’s, namely that, “The Utilitarian position is the one to which I feel most sympathetic,” because “if we are evaluating political institutions and political measures, then I do think that what should be primarily considered is their probable effect upon the happiness of those concerned”.)

But now, having made a case for describing Rawls as a “great philosopher,” let me add two caveats. The first concerns his place in the canon; that is, the list of major political philosophers — the ones who no self-respecting history of the subject could ignore. Suppose that, in compiling such a list, one were to employ two criteria of selection, these being (i) the intellectual quality and originality of a philosopher’s contribution to the subject and (ii) the extent to which a philosopher’s ideas have played a role in the world at large. Suppose also that only philosophers who satisfy both criteria were to qualify for inclusion in the list. That would be a reasonable way to proceed, and I take it that, having deployed both criteria one would come up with a fairly conventional list. It would include, say, Plato, Aristotle, Hobbes, Locke, Hegel, Mill, Marx, and one or two others. (There are other ways to compile a canonical list of course. For example, there is, no doubt, a canon of women philosophers who have been side-lined by history, but that would not be the conventional canon with which I’m concerned here.) My caveat, then, is that, while there can be no doubt that Rawls’s work satisfies the former criterion, it is not obvious that it satisfies the latter for, unlike the others, Rawls has – as one might put it — no “public face”.

Some examples of those who do (or did): Hobbes, who was widely notorious for his materialism and suspected atheism; Locke, the readership of whose Second Treatise – his apologia (or manifesto) for the “Glorious Revolution” of 1688 extended beyond the narrow intellectual realm; Rousseau, the rhetoric of whose The Social Contract informed the French Declaration of the Rights of Man; Mill, who was a renowned essayist and public intellectual; Marx, who was famous for, well, for his Marxism. I could continue the list. My point is that, for a full understanding of, say, the motivation behind the 1688 revolution, the thinking of the “founding fathers” who drafted the U.S. constitution, the behaviour of the French revolutionaries, or the nineteenth century’s movements for revolution or reform, then, for the full story you will need to understand the role played by the ideas of the philosophers. These are, in short, writers whose work helped to shape events, and that is a reason for including their work in the canon, a reason in addition to its intellectual quality. By contrast, outside academia, who can there be who has heard of Rawls? There are, I am sure, very few. I suspect, too, that even within academia his name will be unfamiliar to many. If his work has influenced events, that will only be through its effect upon the thinking of high-level mandarins who, having spent their time in the back corridors of elite universities studying for degrees in political science, are now functionaries within the bureaucratic apparatus of government. (If I’m right, it’s a sad reflection, not upon Rawls, but upon the low level of attention paid to philosophy in our times.)

Following on from this, my second caveat arises from the consideration that any social contract theory, hinging – as it must – upon an account of what it is rational to do, must carry with it a recommendation for action. The caveat is that people will only follow the recommendation if they are aware of theory itself. An obvious example with which to illustrate the point is Hobbes’s Leviathan. The implication of its argument is that a sovereign with absolute power is required if horrific upheavals such as the English Civil War are to be avoided. That is the lesson Hobbes intended his readers to draw, and – of course – they couldn’t draw that lesson unless they knew what his argument was. Ideally, they should have read his book, or so – I assume – Hobbes would have thought. (Think of it as a book of instructions.) My point is that, likewise, if people are to strive to establish Rawls’s principles of justice, they must first be aware of what his argument for those principles might be.

With that, let me return to a point I raised at the start of this piece, and to the question of just how markedly American Rawls’s vision of the just society is. In answer, there is, for example, a resemblance between the way in which his hypothetical rational choosers select principles of justice, and the manner in which real, non-hypothetical, people might set about drawing up a constitution. Couldn’t it be argued, then, that Rawls’s “original position story” is simply an idealised version of events which took place at the Philadelphia Convention of 1787? Perhaps it could and perhaps there are objections to Rawls’s argument which can be founded upon this observation. I’m sure, too, that there are other features of Rawls’s philosophy which bear witness to its American pedigree. I shan’t dwell upon such details here, however. It is more to the point that Rawls’s entire philosophy can be seen as an attempt to articulate and defend one version of the American dream; the dream of constructing a society within which individuals between whom there are great differences – of ethnicity, cultural background, religious faith, moral vision, and so on – can live peaceably together and flourish. It’s a project to which Rawls continued to direct his energies in his second major book, Political Liberalism. There, he set out to define the main features of “a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical, and moral doctrines.” This is the vision of America as a “shining city on a hill”; the vison extolled by presidents as different from each other as Reagan and Obama.

It’s a vision which merits two comments. The first is that, for all the “shining city” talk, there is nothing especially American about it. There are, after all, other continents inhabited by individuals who are profoundly divided by religious, philosophical, and moral doctrines – Europe being one obvious example. In fact, you could say that the whole world has become so internationalised that it can be viewed as such an entity. It follows that, while Rawls’s vision may carry more than a trace of its American origins, it is more than local in its potential range of application. We all have every reason for taking notice of attempts to work out theories of justice such as Rawls’s. The second comment is that there is, tragically, more than one American dream. Another is the dream of America as a fortress whose walls protect a haven for a narrow caste; its members filled with contempt for those who differ from themselves and who, convinced of their own superiority and the rightness of their prejudices, have no regard for constitutions or principles. We know that some of those Capitol insurrectionists had guns, but I’d be prepared to bet that none will have been carrying copies of A Theory of Justice.

Alan Haworth weighs up the work.