Rawls [4], “Constitutional Liberty and the Concept of Justice” (1963)

When we last left Rawls, he was trying to identify the ‘concept’ of justice–that is, what it is we’re attributing to a society when we call it ‘just.’  Rawls claimed that a ‘just’ society conforms to the two principles of justice–viz., (i) each person has an equal right to liberty consistent with the same liberty for all, and (ii) inequalities that arise are only tolerable on the conditions that a) they work out to the benefit of everyone and b) attach to positions open to all.  Now why again should we accept these principles as the operative principles of a just society?  Well, because

…when the logical subject is the fundamental structure of the social system in which everyone must begin, the two principles of justice are those which rational persons would acknowledge when subject to the constraints of the concept of morality in circumstances giving rise to questions of justice.

In this latest essay Rawls’s goal is to render this all a bit less abstract by showing how his conception of ‘justice as fairness’ can be deployed in defense of our generally recognized constitutional liberties.  I won’t go into the details about how Rawls sets about accomplishing this goal, but will underscore what for me is the most important ‘take-away’ point of the paper:

In a free society, in which a wide divergence of religious and political belief is to be expected, the concept of justice is…the most rational ground for a common public understanding of the basis of these fundamental liberties.

I would submit that this one sentence has helped me understand Rawls better than any other.  Our problem is not that there are too few justifications available for ‘morality,’ but rather that there are too many.  We must own up to the fact of value pluralism, and do the best we can to create a well-ordered, rational society in light of this value-pluralism.  Rawls’ approach (perhaps it’s been obvious to you for a long time) is designed to answer this need.  When you can’t agree on matters of substance, check to see if you can agree on matters of procedure.  If so, you’ll probably be able to get along after all.

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26 Responses to Rawls [4], “Constitutional Liberty and the Concept of Justice” (1963)

  1. Lime says:

    David, I seem to recall discussing this point with you at Hopleaf several years ago.

    You are not alone. Apparently many people were able to publish papers and books analysing Rawls while still missing this basic point.

  2. Nate says:

    Very interesting. I’ve read less Rawls than any of you, so this took me by surprise. I’d always heard that early Rawls was accused of being insufficiently pluralistic, that he took this charge seriously, and sought to correct it in his final works. Is this true? And are we talking about the same pluralism?

  3. Lime says:

    Well, Rawls was never insufficiently pluralistic in the sense that he believed that a theory of justice could be based on what might be called a comprehensive conception of a well-lived human life. There is a question, however, as to whether liberalism is understood as the only or clearly “most rational” response to the fact of pluralism or simply one possible response. In Political Liberalism, Rawls makes clear that his theory is a political conception, meaning that a society (I don’t have the text with me) where citizens remain profoundly divided by reasonable though incompatible comprehensive doctrines can nonetheless be just and stable over time IF citizens share an overlapping consensus on a basic political morality. Rawls Political Liberalism, then, is one version of political morality that a diverse citizenship could affirm.

  4. Josh says:

    David –

    Some critics found the (apparently) more relativistic project of _Political Liberalism_ unmotivated, in light of the sort of point you are making. I think Will Kymlicka was one of them (in either _Liberalism, Community and Culture_ or _Contemporary Political Philosophy_). The germ of the idea of all the main concepts laid forth in_ Political Liberalism_ is right there in the essay you’ve just read.

    However, somewhere in the 80’s, Rawls became a stalking horse for a wide variety of critics who did not care to understand the details (or even general gist) of his theory, and instead used him as the sort of “individualistic liberal humanist” or whatever it was they most wanted to vilify. What’s interesting about reading the essays you’re looking at is that, in retrospect, a lot of those critics’ complaints have already been taken into consideration.

    But then again, is there perhaps something about the presentation of those ideas in _A Theory of Justice_, if not their actual content, that makes them susceptible to this misreading? Somewhere along the line, for some at least, “The Kantian Interpretation” became something beyond what it claimed to be, i.e., an *interpretation* of justice, and instead morphed into something it never claimed to be, i.e., “the only possible universal foundational justification of justice.”

    And – in the interest of full disclosure, yours truly made this very interpretative mistake while writing his undergraduate thesis. My advisor argued with me the whole way through, but I was too committed to the idea that Rawls had some sort of metaphysical commitments to “personhood” or something, to understand that this wasn’t so.

    But might that not be Rawls’s fault, at some level?

  5. Lime says:

    It is probably Rawls’ fault at some level. He could be clearer about what the veil of ignorance thought experiment, for example, is meant to accomplish. Also, TJ is a long book, and many of the clearest sections on justification (in particular section 87) don’t come until the end.

    At times, one gets the impression at times that Rawls believes that justice as fairness is neutral (both in terms of aim and effect) with respect to comprehensive doctrines, though Rawls certainly never claimed neutrality of effect in TJ or PL.

    As for your senior thesis, Josh, I think you may have been onto something – although if you were at all like me as an undergrad, you probably went over the top with universalist (or relativist) language. I argue in a forthcoming paper that Rawls’ theory does draw normative force from an account of personhood, though it is a political rather than a metaphysical account. His account is not a “fact of practical reason,” as a Kantian like Rainer Forst would put it, but instead an orientation towards others that makes a particular account of justice as fairness possible.

  6. David says:

    Thanks for the replies. They’re very helpful.

    I can only speculate regarding the issue of whether Rawls fostered misunderstandings of his position, but the following comes to mind. Rawls himself might have been ambivalent about the scope of his project. Some mornings he might have thought, “I’ve figured out the Platonic Form of Justice!” On other days he might have thought, “Well, at least I’m shedding light on what justice means in a society like ours that purports to be founded on principles like freedom and equality.” This ambivalence might come through in his writing.

    Lime, I’d like to hear more about the distinction between ‘metaphysical’ and ‘political’ conceptions of the ‘person.’ I’m particularly keen to hear how the latter might be spun independently of the former.

    Thanks again! The Rawls summaries work especially well (for me, anyway) when you elaborate and comment on the essays’ themes.

  7. Nate says:

    OK, now I’m confused. Here are three ways we might characterize Rawls’ position in Theory of Justice:
    (1) OP (and related principles) are the criteria that must be met by ANY just political system, and modern liberalism is the only system that meets these criteria.
    (2) OP (and related principles) are the criteria that must be met by ANY just political system, and a variety of political systems meet these criteria.
    (3) OP (and related principles) together represent one way of being a just political system, but there are other ways of being just.

    Some of the comments here sound a little like (3), but I find it hard to believe Rawls would have thought this. (2) maybe, but surely not (3). After all, isn’t the whole point of the veil of ignorance was to abstract from the particularities of self and society and to arrive at general conditions of justice? Otherwise, what’s the point of all the connections he draws between his theory and Kant’s. For example: “The description of the original position resembles the point of view of noumenal selves, of what it means to be a free and equal rational being.” (225) Am I mistaken about this?

  8. Lime says:

    Is OP the “original position” or fair equality of opportunity (occasionally referred to as the opportunity principle)? I’m not sure what you mean by OP and related principles.

    Unfortunately, I don’t have TJ with me here in Alaska. I can say however that the point of the veil of ignorance is to abstract away from self and your place within society, but parties in the OP should know basic facts about society. “Abstracting away” from self is itself a bit misleading, since Rawls view is not a view from nowhere so much as a heuristic device meant to encourage the reader to imagine whether her beliefs about justice could be affirmed by individuals in a variety of social positions (otherwise the criticisms from the 80s that Josh mentions would have been on target).

    Justice as Fairness is a theory of justice for democratic peoples, that is, those broadly committed to free and equal citizenship. Those not committed to democratic citizenship (very broadly conceived) are simply not Rawls’ audience, and will most likely not be convinced by his arguments from TJ. His target is libertarian and utilitarian philosophers, economists, and legal scholars who affirm Rawls’ foundational assumptions, but nonetheless deny the merits of a property-owning democracy, believing it to be hopelessly inefficient or inconsistent with individual liberty. Justice as Fairness, Rawls contends, best matches the fixed points of his interlocutors’ considered convictions about justice. I leave it to you to decide whether that best matches (1), (2), or (3).

  9. Josh says:

    Lime writes: “Those not committed to democratic citizenship (very broadly conceived) are simply not Rawls’ audience, and will most likely not be convinced by his arguments from TJ.”

    I think you’re right that Rawls’s main targets are utilitarians and libertarians – but I’ve often wondered who’s actually in the set of people who are “not committed to democratic citizenship.” Isn’t there a sense in which Rawls ends up arguing that utilitarians (and for that matter libertarians) aren’t actually committed to democratic citizenship either? Or, they say they are but end up mired in contradiction?

    So what would be an example of the sort of person who’s not committed to democratic citizenship? A dictator? A Masai tribesperson? It seems like Rawls’s “widely shared but weak premises” are things that most of those people would acknowledge as binding as well – i.e., the idea that a principle of human interaction should be universalizable in some sense, that human society is marked the circumstances of justice, i.e. relative scarcity, sometimes a confluence and sometimes a contradiction of personal interests?

    In the same vein – on the question of heuristic device vs. “metaphysical commitments” or whatever. I attended a lecture by Ronald Dworkin back in college, and he left an impression with a series of statements he wrote on the chalkboard.

    P
    P is true.
    P is universally true.
    P is universally, metaphysically true.

    P exists in Plato’s heaven.

    What he was arguing was that, despite the apparent differences among these statements, they’re all true or they’re all false, and that we weren’t doing ourselves any favors as liberals trying to make distinctions among or between them.

    In short – it’s hard for me to imagine a sincere interlocutor (as opposed to someone just looking to justify lying, first-person dictatorship, stealing, or whatever) actually contesting any of Rawls’s premises. And I’m still not so sure why Rawls (especially later Rawls) is so wary of them.

    Also, Lime writes “Rawls’ theory does draw normative force from an account of personhood, though it is a political rather than a metaphysical account. His account is not a ‘fact of practical reason,’ as a Kantian like Rainer Forst would put it, but instead an orientation towards others that makes a particular account of justice as fairness possible.”

    isn’t that distinction (between a “metaphysical” and a “political” conception of the person) – one Rawls makes explicitly in_Political Liberalism_?

    And maybe I’m just reading Kant too much through a Rawlsian lens, but isn’t Kant’s “fact of reason” idea that really all that much different from Rawls’s idea, just transposing out of the language of German idealism and into the language of late-20th-century moral theory? What exactly is the difference between calling something a “fact of practical reason” and calling something a “consequence of seeing ourselves as certain kind of political agent”? When you chracterise Rawls’s view as “an orientation towards others that makes a particular account of justice as fairness possible” how is that different from the “fact of reason” thing – which, as I understand it, is just “an orientation towards others that makes a particular account of morality possible”?

  10. Lime says:

    I just got off the plane from Alaska so forgive me for failing to be articulate.

    Josh writes: “In short – it’s hard for me to imagine a sincere interlocutor… actually contesting any of Rawls’ premises.” Really? The quickest answer would be that such interlocutors would include all the the non-liberal peoples from Rawls’ Law of Peoples. Probably the majority of the world’s citizens. Now, the Kantian in me might want to come back, “could you really affirm (say) gender or religious or genealogical hierarchy” as a universal principle? What it you were those people?

    Many interlocutors would wonder what I mean by “if you were a woman,” if they were a woman, they wouldn’t be them. Many would sincerely answer yes. If I was a woman, this would be my role. If I was a member of another religion, I pray that someone would convert me, by whatever means necessary. I have come to believe, thanks to a number of theorists including our friend Chad Flanders, that this way of arguing reveals a serious blind spot among liberals.

    Josh writes:”Isn’t that distinction (between a “metaphysical” and a “political” conception of the person) – one Rawls makes explicitly in_Political Liberalism_?” Basically. I didn’t mean to imply that interpretation of Rawls is original here- though some call it a mistake and many critics, in particular, ignore it. Rawls’ theory could never be “neutral” in the way Rawls’ critics sometimes attribute to him. Then I draw a comparison to another theorist who, I believe, relies upon a similar account of personhood, though he is unwilling to claim it (and criticizes Rawls’ “false claims to neutrality”).

    Perhaps I am too exhausted, but I don’t see the relevance of the Dworkin lesson. Rawls is simply recognizing that principles of justice rely upon premises that may not be irrationally denied by different groups of people.

  11. Nate says:

    Wait, isn’t the real issue rationality, not sincerity?

    Josh, you wrote: “it’s hard for me to imagine a sincere interlocutor (as opposed to someone just looking to justify lying, first-person dictatorship, stealing, or whatever) actually contesting any of Rawls’s premises.”

    And, Lime, you wrote: “Many would sincerely answer yes. If I was a woman, this would be my role. If I was a member of another religion, I pray that someone would convert me, by whatever means necessary. I have come to believe, thanks to a number of theorists including our friend Chad Flanders, that this way of arguing reveals a serious blind spot among liberals.”

    Lime, I agree that these people would often be sincere, but this seems beside the point. The way you characterize their response indicates that they’re refusing to engage with the thought experiment–they’re appealing to values or goals that are not available to them behind the veil of ignorance. So, unless they can come up with principled reasons for thinking the thought experiment unfair (and this strikes me as being an extraordinarily difficult task), then it looks to me like they’re being irrational.

  12. Josh says:

    Sincerity was probably the wrong concept – you’re right. But beyond that – when Lime says that there are many interlocutors who would hold that their roles as women or members of a religion would color their beliefs or understandings – those don’t really contradict the “widely shared by weak premises” Rawls references. The agreement to exclude gender or religious background from the range of acceptable justifications for principles of justice is a bit further downstream.

    The things that are supposed to be “widely shared” are things like “people can disagree about fundamental goals or values” or “the conditions of relative scarcity generally obtain.”

    I really don’t think the majority of the world’s population disagrees with things like this. I think they quite often acknowledge them as true, but then set aside logical consistency to cling to beliefs they would prefer to hold. But that’s not really all that different from what libertarians or utilitarians (who apparently Rawls is allowed to argue with without being called intolerant) do either.

    That was the point of the Dworkin lesson – simply asserting that one’s own understanding of life contradicts a given assertion is not a real refutation of that assertion.

  13. Lime says:

    Josh writes, “The agreement to exclude gender or religious background from the range of acceptable justifications for principles of justice is a bit further downstream. The things that are supposed to be “widely shared” are things like “people can disagree about fundamental goals or values” or “the conditions of relative scarcity generally obtain.”

    This is precisely correct. I’m not sure, however, that the above things get you a theory of justice. I think it is important to distinguish, as Rawls does, between reasonableness and rationality. Not only do the majority of people likely agree with with the above statements, but I would go further and say that it is irrational to disagree with them.

    Rawls theory, however, requires an additional moral premise. A rational person recognizes the fact of pluralism and the relative fact of scarcity. A reasonable person, committed to free and equal citizenship (including a pretty robust notion of reciprocity when the whole story is laid out) responds to these facts in a particular way- public reason, etc. It is not irrational to be unreasonable (though certain forms of unreasonableness are likely irrational, like inciting ethnic riots or supporting a system where poverty threatens basic security). It is only if citizens are reasonable, according to Rawls, that a society can be just and stable over time.

  14. Josh says:

    Okay, but I’m not exactly sure why the “fact of reasonable pluralism” has to be seen as something that’s so metaphysically/socially/contextually/historically/whatever-ally loaded. When Rawls appeals to Hume’s “circumstances of justice,” he construes the “subjective” circumstances as the recognition that our interests sometimes align and sometimes collide. Is that a unduly western prejudice? And how far away is that from the “fact of reasonable pluralism”?

    Lime says that these things are responded to “in a particular way” but again I’m confused – what is the different way that others could legitimately respond to the fact of reasonable pluralism? The fact that a non-liberal dictator could “respond” to the circumstances of justice by attempting to eliminate them (or, at least, the people that seem to give rise to them) hardly seems like a reason to “relativize” the theory. The fact that a slightly (though often not much) religious hierarchy, or just a male head of household in a patriarchal society could also just insist that the “circumstances of justice” are some sort of evidence of our fallen natures, or the corrupt workings of the Great Satan, or proof that his wife’s virtue has been corrupted, or whatever, doesn’t make me think we’ve found a “blind-spot” in liberalism.

    And it again makes me question the sincerity of the interlocutors – aren’t they just opportunistically embracing a sham sort of metaphysics that allows them to stay in power? And aren’t their people just laboring under the sort of abusive delusion it’s often difficult to set aside? And again – aren’t these the same sorts of argumentative moves that western corporations often use when they appeal to libertarian tenets, and also the same sort of argumentative moves that large swaths of the American population feel beholden to?

    Systems of power, whether in Saudi Arabia or in Texas, often “respond” badly to the circumstances of justice, but I’m just not persuaded that “cultural difference” somehow excuses this in the former case but not in the latter.

    Maybe if I could be pointed to a real-world example (or even a hypothetical example) of someone who understands the circumstances of justice, which strike me as, for lack of a better term, true, but who “responds to these facts” differently, and not simply opportunistically, but who instead holds a view that’s worthy of respect, I would feel better about this whole idea that “reasonableness” is so loaded and therefore suspect.

    If it’s a question of stability only, and just justification, though, then isn’t it just a matter of letting justice take root?

  15. Lime says:

    Just to clarify, I don’t think “reasonableness is so loaded and therefore suspect.” In a sense just the opposite, as I think that a notion of reasonableness is unavoidable in normative theorizing (at least about justice). I see part of my work as being directed toward theorists (not to mention social scientists) who don’t believe that they are invoking/utilizing a conception of reasonableness in their arguments, and who then criticize them in others. One of the many virtues of Rawls’ work is that he articulates what he means by reasonableness, laying his cards on the table and therefore opening himself up to criticism.

    I’m not sure what you mean by “holds a view that’s worthy of respect,” but surely you can imagine both rational and sincere interlocutors, who conduct their life with a kind of integrity of belief, who respond to the circumstances of justice differently than you or I would. I am not suggesting, finally, that you or I should respond to the sort of injustices that I think you have in mind by saying, “well, that’s just the way they do things over there.” Neither is Rawls.

  16. Josh says:

    Actually, I’m not sure. I really don’t know what you mean by “respond to the circumstances of justice differently than you or I would.” Saying “surely you can imagine” such a person really doesn’t clarify who such a person is actually, or what they might sound like. The circumstances of justice seem like powerful pointers towards a substantive account of justice. If what you mean by “respond differently” is, deploy an argument which reaches different conclusion than Rawls’ by means of criticizing the logic of his argument, then perhaps I understand. But that’s not really all that surprising – that’s just saying people can have arguments within moral theory as a discipline.

    But if what you’re saying is people can have arguments about whether justice can apply at all, or is an acceptable topic of conversation in the first place, then I don’t understand, and I again repeat my request for an example. Otherwise, this starts to feel like a memorable graduate school course where I was told repeatedly that it’s easy to conceive of a world the same as ours but lacking the phenomenon of consciousness… “imagine a world exactly like ours, but lacking the phenomenon of consciousness” – give me some sort of example.

    And by “a view that’s worthy of respect” I mean a view that’s a not just a sham view being deployed strategically for the sake of maintaining one’s power, be it economic, political or theological, and also a view that’s not just a sort of internalized victim-narrative that’s resulted from someone else’s strategic deployment of such a sham view, for the sake of maintaining power. I mean a view that doesn’t make obvious logical errors or require a sort of anthropological condescension on our parts to accept it.

    As to whether a concept of reasonableness is being invoked – I’m still not sure that it’s all that important as a separate step of theorizing. If “reasonableness” means “understanding the circumstances of justice” then I repeat – the circumstances of justice DO obtain, and so then reasonableness just becomes “acknowledging true general facts about our society.” I’m really not all that sure what else is included in this notion of “reasonableness” such that being self-conscious about it is helpful.

  17. Lime says:

    The short answer is that reasonableness is rationality plus reciprocity. I think there are at least two separate questions here. The first is how far can “reason” get us? The Rawlsian answer is that it can get us to understanding the circumstances of politics. There is nothing irrational about understanding the circumstances of politics but not feeling compelled to provide reasons to others that they could accept as valid given these circumstances. Rawls’ audience is those committed to providing such justifications (in a certain way), but who nonetheless reach different conclusions about justice. Reasonable people, according to Rawls, committed (I might say) to a certain understanding of moral personhood, respond to the circumstances in a particular way.

    The second question is: how should reasonable people consider unreasonable people? The answer is that we will probably hold them as less worthy of our respect. While they may be perfectly rational, they are far from perfectly moral. This conclusion may be the heart of the Josh/Dworkin view: if we are going to regard them as morally suspect regardless, of what practical import is the distinction between rationality and reasonableness. Nonetheless, this discussion points to a series of central questions in intergroup or international relations: how ought liberal or democratic peoples respond to illiberal or undemocratic peoples? Walzer says one thing, Beitz says another, Rawls says another, Kymlicka says another, and so on. I have my own views, but they probably aren’t worth exploring here.

  18. Josh says:

    Lime writes “there is nothing irrational about understanding the circumstances of politics but not feeling compelled to provide reasons to others that they could accept as valid given these circumstances.”

    I still feel like a question is not being answered – who are these people who believe this, and why are we so sure that it’s so difficult to converse with them? Not feeling compelled to justify your actions or rules to others still feels like, as Nathan labelled it, just an irrational refusal to engage in thought. Reciprocity just doesn’t seem like it’s historically or socially conditioned to nearly the extent Lime seems to be assuming it is.

    Why should we frame the question as “how ought liberal or democratic peoples respond to illiberal or undemocratic peoples?” I still maintain that such people – these (still putative, not actually identified) people who refuse to think reciprocity is important, are probably either in the throes of an ideology that’s been abusively forced upon them by corrupt leaders, or are simply those corrupt leaders themselves.

    And I’ve really never met a person – though I’ve met several non-liberals – who didn’t think that reciprocity was important. They were just reluctant to acknowledge the effects that a full understanding of reciprocity would have on their politics. But that, again, is just someone being inconsistent, not someone being a member of an “illiberal people.”

  19. Lime says:

    That’s the problem with short answers, I guess. I think you may be conceiving of reciprocity a bit differently/more generically than what Rawls’ theory entails.

    O.K. Non-democratic peoples would be those who’s overlapping consensus does not include democratic norms as Rawls understands them. To put it in terms of the original position, the content of the veil of ignorance would be substantially different for them, so they couldn’t be expected to affirm the same principles of justice. These peoples would include most Middle Eastern nations, or at least those where ethnicity or religious identity confers a particular citizenship status (the modern Church of England wouldn’t count). It probably includes patriarchal nations with a capital P.

    That said, it probably isn’t appropriate to think of an overlapping consensus on “democratic principles” as an either/or. To the extent that such principles are shared, peoples are more likely to be convinced by the arguments from TJ, and affirm the same principles of justice.

    Of course, democratic peoples can converse with non-democratic peoples. They can/perhaps ought to try and convince them. Perhaps for you, convincing them would entail showing them how irrational they’re being. I’m not sure that Rawls or I would agree.

  20. Nate says:

    Lime writes: “To put it in terms of the original position, the content of the veil of ignorance would be substantially different for them, so they couldn’t be expected to affirm the same principles of justice. These peoples would include most Middle Eastern nations, or at least those where ethnicity or religious identity confers a particular citizenship status [...]”

    I’m up in Canada right now, so I don’t have my copy of Rawls, but I’ve been looking at the Google Books version, and I’m not seeing where religious identity comes into play behind the veil.

    Rawls says: “Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance.”

    This seems pretty definitive. Surely most religious beliefs would fall under the excluded conceptions of the good. It seems like the whole point of the veil is to sufficiently abstract from our particular situation so as to arrive at something universal.

    Am I missing something? Is there somewhere else in the book I should be looking?

  21. Lime says:

    Nate, you seemed to have answered your own question. Parties in the original position would not know their conceptions of the good or “personal ideologies.” So the argument from the veil of ignorance so described applies to peoples who believe that such religious beliefs are not relevant from the perspective of justice.

    Rawls conception of our shared values (including so-called “fixed points of our considered convictions”) provides the content of the veil of ignorance (what knowledge is blocked), it is not the result of the veil of ignorance. His argument is if you affirm x, y, z, (which I assume that you do, or could easily be convinced to affirm them, say through a process of reflective equilibrium), then you ought to affirm the principles of justice (even if you don’t currently affirm them). As Rawls puts it, “justification proceeds from what all parties to the discussion hold in common. Ideally, to justify a conception of justice is to give him proof of its principles from premises that we both accept” (1971, p. 580-581). Rawls’ conception of the original position is not “ethically neutral,” nor could it be (1971, p. 579). Instead, “the force of the argument depends upon the features of consensus appealed to” (p. 581). Otherwise, his view really is a “view from nowhere,” and subject to all the communitarian, feminist, and multicultural criticisms that as Josh noted above and I have argued are largely based on mischaracterizations.

    The best place to look in TJ is chapter IX. Of course, Rawls expands upon these points of justification in Political Liberalism (1993) and Justice as Fairness: A Restatement (2001). I should note that the internally consistent view of Rawls’ work that I have presented is disputed. I do believe, however, that it is now the received view among self-proclaimed Rawlsians, including students like Sam Freeman. It is certainly how Rawls himself viewed his work.

  22. Josh says:

    If the problem is that religious identities constitute a part of identity that can’t be abstracted away from, I still don’t understand why that’s not just as Nate described it, a refusal to engage in theorizing.

    The question of whether religion is an essential component of one’s identity and the question of whether religion is a fair thing to appeal to in the construction of a theory of justice (in the face of others whose religions are different) seem distinct. As David originally pointed out, it’s the very importance of religion that leads to its being set aside when questions of justice are at stake. Two people can both recognize that religion is important, even essential to their identities, but also recognize that their religions differ, and then, because of the shared recognition of the importance of their respective beliefs, and their recognition of the difference that exist between those beliefs. This leads them to construct a relatively religion-free account of justice. That’s still only really using the “thin” notion of reciprocity.

    Why is it so important that one’s religious identity in some non-liberal countries affects one’s political rights? Those societies are, quite simply, living under unjust laws. I’m still not sure what the problem is for an account of justice. I reaffirm my claim that such societies are almost always under the sway of self-serving leadership that would like to perpetuate the myth of their own society’s “different self-understanding” in order to maintain power.

    Supposing a law were passed in the United States which restricted Jewish citizens’ rights – using “overlapping consensus” the way that Lime is using it would mean the US’s “overlapping consensus” had shifted. The existence of a law, or even a law of which the majority approves, can’t be enough to justify an abandonment of reciprocity. That’s one of Rawls’s fundamental criticisms of utilitarianism at the start of TJ.

    Put simply – I think it’s overly hasty theoretically, and really quite dangerous politically, to concede from the start that there are “liberal peoples” and “illiberal peoples.” I know Rawls does this in some later texts, but I think it is a mistake. What Lime is calling “illiberal peoples” really just seem like people who, for whatever reason, exist in an internally inconsistent society – one that is multicultural in reality, but supposedly “theocratic” or whatever at the government level. And even if the given country is homogeneous, I have no idea why we draw the line at the current political borders. That just justifies the very repressive ideological techniques that justice is meant to question.

  23. Lime says:

    Josh writes, “The question of whether religion is an essential component of one’s identity and the question of whether religion is a fair thing to appeal to in the construction of a theory of justice (in the face of others whose religions are different) seem distinct.” I don’t believe anyone in this conversation denies that, though perhaps some communitarian or nationalist theorists do.

    Josh writes, “Supposing a law were passed in the United States which restricted Jewish citizens’ rights – using “overlapping consensus” the way that Lime is using it would mean the US’s “overlapping consensus” had shifted. The existence of a law, or even a law of which the majority approves, can’t be enough to justify an abandonment of reciprocity. That’s one of Rawls’s fundamental criticisms of utilitarianism at the start of TJ.”

    You seem to be conflating the moral premises that make a theory of justice possible with the laws of a society that a theory of justice is meant to evaluate. If your example is a society is generally committed to democratic values, but inconsistently applies them in their laws (say, by locking up citizens according to racial profiling, without probable cause), then this phenomenon is precisely what a theory of justice is meant to expose. In that case (as in the case of Rawls’ criticisms of utilitarianism and libertarianism) it would build from shared premises to a conclusion that challenges the status quo, even if 90% of citizens affirm the status quo upon first inspection.

    What you seem to be asserting is that a theorist can build a theory of justice on the basis of rationality alone (that is, without shared moral premises), and that illiberal societies must reflect an unwillingness to engage in theorizing. Rawls denies this claim throughout, as do I.

  24. Lime says:

    Josh writes, “It is… really quite dangerous politically, to concede from the start that there are “liberal peoples” and “illiberal peoples.”

    If what you mean by this statement is a kind of Orientalist dualism, and a tendency in parts of the literature to gloss over internal diversity, then I wholeheartedly agree.

  25. Josh says:

    Well, then, I think our disagreement comes down to when and if the label “committed to democratic principles” should apply. I’m not saying one can construct a theory of justice with “rationality alone” but more that the things you are labeling as “reasonability” are not clearly distinguishable from “rationality” as you seem to think.
    Everything you have isolated as part of the “responthethe circumstances of justice” I have tried to show relatively easily argued for regardless of one’s comprehensive doctrine.

    What is the difference between a liberal society with inconsist

  26. Josh says:

    Inconsistency and an illiberal society? They ALL have internal diversity, which means the whole distinction is unnecessary. Also, if the way you decide whether a society is a liberal one is by looking at it’s laws, then I don’t think you can set aside the example of Jews in the united states so easily. What from one perspective would demonstrate that a society is illiberal from another would just seem inconsistent. There’s no good way other than that to see if a society is committed to principles of justice or a procedure for picking principles of justice.

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