Later On

A blog written for those whose interests more or less match mine.

What John Rawls Missed

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Jedediah Briton-Purdy, who teaches at Columbia Law School, writes in the New Republic:

John Rawls, who died in 2002, was the most influential American philosopher of the twentieth century. His great work, A Theory of Justice, appeared in 1971 and defined the field of political philosophy for generations. It set out standards for a just society in the form of two principles. First, a just society would protect the strongest set of civil liberties and personal rights compatible with everyone else having the same rights. Second, it would tolerate economic inequalities only if they improved the situation of the poorest and most marginalized (for example, by paying doctors well to encourage people to enter a socially necessary profession).

Taken seriously, Rawls’s principles would require a radical transformation: no hedge funds unless allowing them to operate will benefit the homeless? No Silicon Valley IPOs unless they make life better for farmworkers in the Central Valley? A just society would be very different from anything the United States has ever been. Rawls argued that justice would be compatible with either democratic socialism or a “property-owning democracy” of roughly equal smallholders. One thing was clear: America could not remain as it was, on pain of injustice.

It did not remain as it was, but Rawls’s vision did not triumph either. A Theory of Justice was published in 1971, just before economic inequality began its long ascent from its lowest level in history to today’s Second Gilded Age. Richard Nixon’s “Southern strategy” was reorganizing American politics around resistance to equal rights. Within a decade, Ronald Reagan and Margaret Thatcher would lead the English-speaking world sharply away from anything resembling Rawls’s egalitarianism. Yet his philosophical stature only increased. Even his critics—the libertarian Robert Nozick, the feminist Susan Moller Okin, the communitarian Michael Sandel—ended up confirming the central and inescapable place of his thought. By the end of his life, philosophical thinking about equality, war, political authority, dissent and obedience, and global order took place on a terrain that Rawls towered over—in the shadow of justice.

That shadow provides the title of Katrina Forrester’s extraordinary study of Rawls’s thought and its legacy. Over the last 50 years, she argues, Rawls’s centrality has shaped the very idea of what philosophy is. Working in his aftermath, political philosophers have tended to emphasize ideals of consensus-seeking deliberation, legalistic formulations of political problems, and the dilemmas of individual choice in terrible situations such as war. Certain other questions have been quietly kept out: notably, the central place of conflict and collective action in politics, the tendency of capitalist democracy to fall into plutocracy, and the deep role of racism and colonialism in shaping American society and world order.

Yet as Forrester’s book demonstrates, Rawls’s approach to philosophizing about politics was never the only one, however much his influence has made it seem so. Instead, his theory of justice emerged from his distinctive experience of the exceptional decades after World War II. By tracing those historical circumstances—the political and economic assumptions of the postwar years, as well as the ways philosophy was done then—Forrester shows how Rawls’s thinking, with its strengths and blind spots, came to seem natural. Her aim is to open space for problems that Rawls neglected. What would it mean to pursue a just society while grappling with how deeply unjust and divided ours is, with how it got and stays that way?

Although Rawls’s principles of justice were in many ways radical, they were not novel. He is often thought of as the philosopher of 1960s Great Society reformism, because his principles seemed to elaborate on the goals of the civil rights movement and the war on poverty. What was new was Rawls’s mode of argument. He asked a question fundamental in political philosophy: Can any society be justified to all its members, in light of the inequalities it contains, the burdens it imposes (who empties the bedpans and gets up at midnight to make sure the subways keep running?), and the violence it deals out through police, prisons, and wars? If it cannot be just, then some of us are living in a kind of prison, and others are the wardens. If, however, justification is possible, then we might be able to create a world in which we actually approach one another as free and equal persons.

To imagine such a world, we have to shake off the habits of this one and picture ourselves as able to reset all our institutions and social relations, keeping only those that are just—that is, are justifiable to everyone who has to live within them. Rawls proposed a technique for doing this, a thought experiment that he called the “original position.” It invites us to imagine a situation in which people are to choose the world in which they will live. The key is that they choose behind a “veil of ignorance,” that is, they do not know where they would fall in the distribution of privilege and vulnerability in the societies they imagine. Would you choose to live in the United States today if you didn’t know whether you would be Elon Musk or an undocumented immigrant?

Rawls argued that, faced with this uncertainty, people would choose the world that provided the best position for the least advantaged, worst-off class of people. If you don’t know where you will fall, you will want the worst possibility to be as acceptable as possible. Economics-minded critics argued that this was too risk-averse, that one might gamble for the Silicon Valley jackpot at the risk of picking lettuce instead. But this criticism misconstrued the project: Rawls’s argument was a way of setting out exactly what it meant to justify a social world even to the people picking lettuce. If the question is, “Can this world be justified to me as a free and equal person?” Rawls was not prepared to accept, “Yes, because you might have been Elon Musk!” as an answer.

Conservative critics such as the Straussian Allan Bloom (later famous for his polemic The Closing of the American Mind) accused Rawls of cherry-picking principles to suit the liberal prejudices of the moment. In Rawls’s hands, the original position gave philosophy’s imprimatur to the democratic welfare state as well as to the civil disobedience of the civil rights movement and resistance to the Vietnam War. Friendlier readers interpreted Rawls in light of the conflicts of the early 1970s too. Philosopher Marshall Cohen’s New York Times review of A Theory of Justice welcomed a defense of American liberalism “at a time when these principles are persistently being obscured and betrayed”—presumably in Vietnam and at home by the Nixon administration.

Both of these responses, Forrester argues, miss key features of Rawls’s project. Her story begins in the decade after World War II, when Rawls undertook the work that became A Theory of Justice. A watershed event for Rawls was the 1953 publication of Ludwig Wittgenstein’s Philosophical Investigations, which along with Wittgenstein’s other late work helped to inspire a broader philosophical turn to “ordinary language.” When Rawls visited Oxford in the academic year of 1952 to ’53, this approach was richly elaborated there. It was the new philosophical frontier of the age, full of untried possibility.

Ordinary-language philosophers turned away from highly technical questions about the fundamental nature of language (What makes a sentence true? Does every word in a true statement refer to some definite object in the world?). Instead they asked how language works from the point of view of a clear-minded speaker and listener. Everyone lives inside a language, they reasoned, knows how to use its grammar, and recognizes misuse and confusion. We have to get over the philosophical impulse to seize sentences and sweat them, inquisition-style, until they confirm their truth or confess their falsehood. Philosophy is less about achieving a new kind of knowledge, more about making clear what we already know. Philosophers began to think about language and social practices such as law the way we think about games. There is no such thing as hitting a triple outside of baseball: Try as you might, you cannot do it alone, or in a group of people who have never heard of baseball and want you, please, to take your stick off the soccer pitch. But once you are playing baseball, it is clear whether or not a triple has been hit. Even close cases, such as a photo-finish race to beat a throw from an outfielder, just confirm that we know what a triple is.

The legal philosopher H.L.A. Hart argued that law, too, is a game in this way. There is no “natural law” that tells you whether you “really” must obey a law you dislike, as both dissenters and defenders of existing law had long hoped to show. But once you are involved in legal argument, you tacitly accept that certain things count as law. If you start to insist that Leviticus trumps the San Francisco municipal code, then you have become the person waving a baseball bat on the soccer pitch, hoping to get to third base in a game where third base does not exist. Forrester argues that Rawls wanted to elucidate society itself as a “game” of this sort. Social morality, which is the topic of justice, had its own tacit rules, and drawing those out could help to make clear what people already knew when not distracted by self-interest or prejudice. Like the rule book for a well-established sport, the original position and the principles that Rawls drew from it did not dictate some new morality. They helped to spell out the terms of a social practice.

If Rawls’s approach to justice emerged from the philosophical currents of the 1950s, it also formed in response to political concerns. Born in Baltimore in 1921, Rawls saw the rise of the administrative state through the 1930s and ’40s, as New Deal programs led to the establishment of an alphabet soup of government agencies to implement them: the SEC, the FHA, the PWA, the NLRB, and many more. Although Rawls was not an anti-New Deal reactionary, he shared the worries of some liberals and centrists that the expanded American state would end up interfering with personal autonomy through perennial supervision of the economy. He preferred to think that if the state established the right set of operating principles and guardrails, people would be able to get along on their own, with no more than modest political intrusion or contest.

It was bold, if not implausible, to posit a neutral and abiding set of principles in American society, which was torn by bloody labor conflict in the ’30s and ’40s, and sent its pacifists and revolutionaries to prison or worse. But Rawls wasn’t alone in doing so: The decades in which he developed his theory formed the high-water mark of the “consensus” schools of American political science and history. It became conventional to say that Americans had mostly agreed on the essential principles of liberty, equality, and democracy—and, less abstractly, private property, regulated markets, and courts of law. Conflict was the exception. Radical dissenters were outliers. The idea of consensus was essential to Rawls’s project: If Americans deeply agreed on justice, then the hidden logic of that agreement, drawn out through the original position, could both guide and limit the state.

A Theory of Justice was both radical and conservative. Yes, it proposed a sweeping reconstruction of “the basic structure” of American life—Rawls’s term for the key institutions of public life, such as government and the economy. At the same time, it described the principles of reconstruction as ones that Americans already held. This strategy of squaring the circle might seem odd: How can a country be committed to principles it routinely and pervasively defies and ignores? Yet it’s also peculiarly American. The American political myth (meaning not a simple fiction but a kind of shared master-story) is “constitutional redemption,” the idea that moral truths are woven deep into the country’s character, imperfectly expressed in the Constitution and existing institutions, but awaiting realization in “a more perfect union.” This was how Frederick Douglass and Abraham Lincoln talked about freedom and equality in the 1860s, and how Martin Luther King and Lyndon Baines Johnson talked about the same values in the mid-1960s. Constitutional redemption was the defining ideal of Cold War liberal patriotism. Its strategies became, by subtle philosophical transformation, the strategy of A Theory of Justice: to say that Americans already are what they have never yet been—and that this ideal is also incipiently universal, if other peoples can make their way to it.

Forrester is a subtle intellectual historian as well as a political theorist, and she does not imply that one book, even a work as field-defining as A Theory of Justice, can in fact define a field. In the Shadow of Justice also tells the story of a network of Rawls’s contemporaries and the generation-plus that followed him. These thinkers continued a search for the impersonal perspective on politics that Rawls had put at the heart of the field. Ironically, however, the consensus Rawls had counted on was already gone by the polarized late 1960s, which saw violent backlash against the civil rights movement, vicious clashes over the Vietnam War, and acts of domestic terrorism from both the militant left and the racist right. There was little more reason in 1971 to think that Americans shared an abiding consensus than there is in 2019. In the face of polarization, the thinkers in political philosophy’s mainstream persisted in presenting themselves as above mere political conflict, claiming a neutral ground that no longer existed.

In Forrester’s telling, the philosophers in Rawls’s milieu aimed to engage with the radical challenges of the 1960s and 1970s, but tended to formulations that blunted the sharpest criticisms of American life. Confronted with civil disobedience against the Vietnam War and racial subordination, Rawls and his cohort developed the canonical modern image of civil disobedience: as an appeal to the country’s higher principles, a fragment of lawbreaking in support of a larger fidelity to law. Those dissenters who disobeyed because they considered the U.S. government illegitimate, at least in some respects, were written out of the story.

When black activists and scholars proposed reparations for slavery and Jim Crow, the philosophers responded that justice asks whether people are being treated as equals today, not the “historical” question of how inequalities arose. Rawls similarly hurried past segregation in his work; he reasoned that it was so manifestly unjust that there was nothing a philosopher should say about it except that it should be abolished completely. But maybe a philosopher who was trying to distill the country’s most basic values should have lingered over just how deeply the legacies of Jim Crow and slavery shaped that country. What did the vicious and often successful resistance to the civil rights movement reveal about the American grammar of justice?

A similar ahistorical impulse governed when Rawls and others turned to the problem of international justice. Colonialism and empire largely receded from sight, as did postcolonial political efforts to develop redistributive regimes such as the short-lived New International Economic Order. In The Law of Peoples, Rawls imagined an original position for representatives of nation-states, interested in fair rules of international order. But he didn’t propose redress for newly independent countries, which would be starting out poorer than the colonial powers that had dominated them for years. There is a fine line between distilling problems to issues of principle and losing track of the settings altogether.

A part of what happened in these decades was that the technique of Rawls’s arguments came loose from the setting in which it had originally made sense. The discipline became increasingly remote from moral and political experience. What, asked some next-generation Rawlsians, would be the result of an original position for the whole world? The question moves far away from Rawls’s own effort to draw out the principles to which his audience was already committed. Where was the consensus, what were the institutions, for a philosophy of global justice? . . .

Continue reading.

Written by LeisureGuy

10 November 2019 at 7:24 am

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