Vedrørende Rawls:
The American philosopher John Rawls has been an immensely influential thinker
within political philosophy, ethics and philosophy of rights. Arguably his two main
works, “A Theory of Justice” (Rawls, 1999) and “The Law of Peoples” (Rawls, 2003)
are attempts to apply the same basic ethical principles to deliver conclusive answers
to the two related questions of how human relations should be structured on the
intra-communal and inter-communal levels respectively. He is in many ways a
classical liberal, but distinguishes himself with his strong focus on contractualism as
not only a premise of ethics but an ethical methodology, as a sort of transcendental
principle for agreement between reasonable agents, which at once reveals the Kantian
inspiration of his approach and its contrast to other classical representatives of
contractualism such as Thomas Hobbes and Jean Jacques Rousseau.
Rawls attempts to construct principles for a just society that could achieve the
principle assent of all reasonable individuals. In “A Theory of Justice” for any given
political association of men, i.e. a state. In “The Law of Peoples” for the global level,
including those rules that should guide the interactions of individuals across borders
as well as the rules for inter-state relations. In the first, Rawls takes a minimalist point
of departure in the form of the rational self-interest of the individual and attempts to
show that even given this there are certain principles that all individuals would be able
to agree to. From the formal definition of justice it follows that this constitutes
principles that not only could be agreed upon, but which individuals should assent to
as ethical principles. In the second, Rawls attempts to demonstrate that this
agreement is independent, i.e. that a global overlapping consensus is possible on
certain core values, and that relations constituted between culturally defined and
culturally different communities will follow similar but not identical principles as
those which obtain on the intra-communal level. The qualifier of “similar, but not
identical” is particularly interesting in this connection.
In both cases Rawls’s initial premise is a theoretical position in which autonomous
and reasonable individuals are placed behind a ”veil of ignorance”. The two
conditions of the veil are at once competence on a number of areas, such as empirical
knowledge of certain basic, relevant facts of the world, and ignorance of those factors
that would predispose the agents towards making decisions that are not generalizable,
such as their individual positions within the community, identity, cultural background,
etc. On this basis Rawls proceeds along a choice-theoretical scenario to the properly
normative level composed of two central ethical principles as well as guidelines for
their implementation including their order of priority.
It is worth underlining,
however, that Rawls qua the limitations inherent in the veil cannot formulate detailed
principles for a number of choices and priority of values. The normative principles
thus leave considerable maneuvering room within the framework set in the original
position. This has the implication that there is not on, but a number of different
reasonable communities that can at once meet the principles and have substantially
different common conceptions of the content of the good life.
The premise of Rawls’s argument is the presupposition of the possibility of a public
reason, and the implications that follow from this.
The strategy is to universalize fundamental rights by making them imperatives of
reason as choice-theoretical decisions made behind a relevant veil of ignorance. This
condition itself, however, suffers from several weaknesses as famously pointed out by
Jürgen Habermas, among them the difficult double-bind of the twin requirements of
the veil’s eliminating irrelevant but maintaining relevant information, and the
principle problem in relinquishing the autonomy of self-legislation through a final
transcendental solution granted by the original position. (Reference.) The central
problem in this connection, however, is not the more or less serious difficulties that
Rawls’s specific ideas of how to arrive at the ethical principles or their content may be
afflicted with, but the fact that it contains a weakly supported and possibly
contradictory limitation of responsibilities in the form of Rawls’s definition of
relevant communities. The constitution of such communities seems to be considered
a given before the introduction of the veil, as the question of how to compose them
never enters the original position, or is perhaps simply considered a fact beyond the
reach of the principles that can be considered there, on a par e.g. with gender. 1 The
community is then at once a type of a priori, and an empirical problem which is
relegated to the substantial conception of the definition of a good life.
On the concrete level communities (or ”peoples” in Rawls’s terminology) are
organized around such substantial conceptions of the good life, but on a basis of
reasonable preconditions. To the extent that rights are attached to the universalizable
foundation for reasonable peoples, rights however are common all human beings,
and a common obligation for those communities which are reasonable according to
Rawls’s definition. How then to justify limiting responsibility? Or, to put it more
succinctly: what is the disanalogy property that obtains to prevent such universal
rights from creating universal duties, and why is it morally relevant in Rawls’s theory?
There seem to be two general possibilities: either to reduce duties to those that
concern strictly negative rights, by somehow arguing that these would be the
principles chosen in the original position. This possibility suffers from a combination
of the flaw that Rawls’s does not, in fact, argue along these lines, and that any attempt
to do so would run into the difficulties I described in chapter 3. Or to define a
legitimate limit to the group of individuals to which duties are owed on a principle
level, and in accordance with the fundamental normative principles that Rawls
believes obtain.
1
And we should be cautious, perhaps, to assume that even a category such as gender could not be
submitted to consideration. By this I do not mean, of course, debating the principles that should obtain for
relations between the sexes, but rather the much more fundamental question of whether distinguishing
along sexual lines is relevant in the first place. Certainly, we can imagine some queer-theorists questioning
this premise.
Definition of peoples:
Rawls seems to base his conception of peoples on ”a common understanding of the
good”. But this seems to lead him into difficulties. Traditional definitions of peoples
would not support this definition – it does not cohere with nationhood, language or
culture. It seems rather to define peoples as political entities, which seems to lead to
the odd conclusion that most democratic states hold not one, but several peoples
(distinguished by their conviction of the differing programmes for “the good” framed
by political parties), and that these owe each other no considerations of justice
beyond those that obtain between peoples. There seems no obvious way to reconcile
the two so as to reach Rawls’ assumption that the nation-state can provide the basic
foundation of global justice. Peoples, quite simply, will not correlate with states, if we
follow the way that Rawls attempts to delineate them.
Definition of liberal peoples:
”Liberal peoples have three basic features: a reasonably just constitutional democratic
government that serves their fundamental interests; citizens united by what Mill
called ”common sympathies”; and finally, a moral nature.” (s.23)
Peoples are not sovereign! (s.25)
The most serious problem for Rawls then becomes the complete indifference to the
problem of properly, or fairly we might say, constituting the peoples that he believes
his theory should operate with. It is obvious that such traits as national associations
must belong to the group of features that the individuals in the original position leave
behind the veil of ignorance. As such, one might expect a discussion of how these
participants would decide to legitimately constitute themselves as peoples to be a
crucial element of their deliberations. But this is not the case. Rather, peoples are
considered a sort of pseudo-ontological entity, given in the world behind the veil of
ignorance with the same obviousness as gender or race, i.e. categories which it may be
quite possible to discuss the fair relations between and internal identity of, but not the
fundamental division into.
An indication of how such peoples would properly be constituted is contained in the
description of their difference as defined by their varying substantial conceptions of
the good life. Accordingly, we might consider the viability of this as a criterion.
Initially, it will fit well with the general choice-theoretical and contractualist character
of Rawls’s thinking: liberalism establishes a series of principles to which all
communities must adhere, but the individuals are then granted freedom to organize
themselves around their varying conceptions of the good life – English with English,
Catholic with Catholic, and Social-Democrat with Social-Democrat…or what? As
indicated, rather than resolving the question it seems to open up another line of
questions that Rawls’s theory is ill prepared to deal with. One central among them
might be the rights of the emigrant: we saw in chapter 2 that the rights to movement
and citizenship are among those most severely constrained in the UN conventions,
but how would Rawls’s theory deal with the question of exclusion? The emigrant who
publicly denounces her former association and the attached conception of the good
life in favour of adopting another conception is, theoretically speaking, already a
member of the relevant community in virtue solely of this ideological shift. But so
loose a structure of political association is likely an unacceptable consequence for
Rawls.
Habermas’ critique:
As mentioned earlier, Rawls’s attempt to construct universal principles for a just
society moves analytically from a series of transcendental premises across a choicetheoretical scenario to the shaping of a concrete normative ethics. Jürgen Habermas,
while sympathetic to much of the Rawlsian approach, questions in particular the last
two elements of the argument. First by criticizing the constitutive traits of the choicetheoretical scenario, i.e. Rawls’s original position, and secondly by illustrating the
untenable consequences for the normative level if the argument is carried through, i.e.
a reductio ad absurdum of the implementation in a normative ethics.
The first point of contention focuses on whether it is possible to construct an original
position that is at once abstract enough to be serviceable as a universalizable
foundation, and at the same time substantial enough to be capable of producing
solutions to the questions it needs to address. There is a difficult balancing act,
embodied in the concept of the veil of ignorance, between the two requirements of
the position, which may be principally impossible to resolve. At the same time he
questions the application of the principle of fairness in Rawls’s theory, the liberal
conception of equality, and the reduction that Rawls submits it to, in order to
accommodate the requirements of neutrality and universality in practice. Finally,
Rawls seems to privilege the one half of the concept of autonomy which concerns the
duty to live according to principles of reason at the expense of the other half which
concerns the duty to be the author of self-legislation in accordance with reason. This
has the unacceptable consequence that the rights established in the original position
acquire an undesirable precedence as compared with the democratic process of
legitimation which must constitute and reproduce them in the specific context.