Thursday 23 July 2015

Is Justice Fairness? A critique of John Rawls "A Theory of Justice"



Introduction

After an energetic discussion at the Kingston Philosophy CafĂ© about the eminent American philosopher John Rawls’ A Theory of Justice, it was decided that it would be worthwhile to look into the definitions and meaning of key terms he uses including justice, fairness, politics and society.   The comments below begin with this, and go on to develop the outline of a more detailed critique of Rawls’ theory.


1.   Is Justice the same as Fairness?

The best way to think of justice according to John Rawls is as fairness.     This seems innocuous enough at least initially as we all understand that fairness is something that justice aspires to.    But does that mean that justice is the same as fairness?    To begin with there seems to be a grammatical problem.  We speak of justice being done, something active, whereas fairness is a passive principle and you can’t talk of doing fairness, so they seem to be different things.    If we look at what people generally mean when they call for justice to be done, as they regularly do especially in the tabloid press, it’s pretty clear that what they are calling for is not fairness, but retribution and punishment.   They think someone has transgressed and they are not interested in reversing the transgression (which is what fairness would require) but in punishing the transgressor, using force of some kind to discourage him or others from offending again, or maybe just for revenge.    It’s clear that justice though it may hope to be fair, also involves control, revenge and punishment and that a theory that neglects these darker aspects of justice, as Rawls’ does, is missing a very significant part of the picture.

Rawls would certainly object that viewing justice as fairness in not the same as saying justice is fairness, “any more than the phrase ‘poetry as metaphor’ means that the concepts of poetry and metaphor are the same” and he does in fact take pains always to speak of “justice as fairness” and never to say “justice is fairness”, presumably to side-step the charge of reductionism.    This seems a questionable distinction.    If one was to speak of poetry as metaphor in a work titled A Theory of Poetry, there seem to be only two options:   either metaphor is one aspect of poetry and the theory must also mention the other essential aspects, or if it doesn’t, then the theory must be that poetry is metaphor alone.    A theory of justice that speaks of justice as fairness likewise should either mention other essential aspects of justice, or if like Rawls’ Theory it does not (though he does in later works make reference to their existence), it seems fair to conclude that it is saying at the very least that fairness is the criterion by which justice is to be judged.    This latter seems to me equivalent to the strong claim that justice is fairness, and that is how I have interpreted it in what follows as if it is not making this claim it is hard to see that it is making any claim at all, as you could hardly call the notion that fairness is one of the many attributes of justice the core of a meaningful theory of justice, especially if those other attributes don’t feature anywhere in the theory.

 If you add to this the fact that justice can sometimes be unfair, when for example it hands out an unusually severe sentence to “make an example”, it doesn’t seem that the notion of fairness is anywhere close to a complete account of justice.    Fairness doesn’t encompass the whole of justice, since it leaves aside retribution and punishment, and it is not even a quality justice necessarily has to have.    It’s neither sufficient, nor necessary.    This is a very shaky foundation for a theory, and it is hard to imagine any theory based on a definition of its titular subject matter that only a little reflection shows to be neither necessary nor sufficient rising to the top of any other academic discipline, but this has happened in philosophy and it raises the question of whether there is something about contemporary philosophy that allows this.    I’ll return to that question later (7 below), as well as to the distinction between justice and fairness (section 4) but first let’s look at the places where those virtues are found.

2    Is the State the same as Society?

There is an aspect to our lives that can be termed the social.    It corresponds to a sphere of activity sometimes referred to as Civil Society, or perhaps the Public Realm.    It’s that area of our lives where we are free to do as we please, and where we can form associations and alliances with others to achieve common goals.    It includes friendships and clubs (like this philosophy group for example) as well as all commercial life.    In many European languages and perhaps others for all I know, the word for “Company” is the same as the word for “Society” and indeed our own word Company is not so far removed.    Because we are free in this field it is where we can and do make contracts.    Where we have no obligations, we can agree to do something because we expect something in return, and this is the basic form of a contract, which can have many shapes but in everyday life most commonly takes the form of a purchase or sale.     Where we have duties and obligations, things that we have to do, we don’t have that freedom and we can’t contract to do something that we have to do regardless.   Freedom and limitation are essential to contract.  I have to be free to enter into the agreement, and I also have to be able to define the agreement, which means saying when it has been fulfilled, which means specifying its limits.    You can’t have an unlimited contract;   that would be something more like slavery and would contradict the freedom that is essential to contract.

In contrast to this social sphere are two other aspects of community, namely the State, and the Family, two great institutions if you like, indeed Civil Society itself can also be viewed as an institution, the third essential part of the structure of our lives.    The state and the family share in common two features not found in Civil Society.     You belong to both by virtue of birth and for life, so you do not enjoy the freedom to choose whether or not to belong;  and you have certain obligations by virtue of belonging, things that cannot be subject to contract because you are not free to choose whether or not to perform them.   

Two simple points follow.    Firstly the state and society are fundamentally different things (we’ll return to the difference shortly, 5 below) and secondly, any attempt to ground either the family or the state in some kind of contract, however imaginary this may be, is inappropriate because contract is only appropriate in civil society, and we must have the state before civil society can exist.    Indeed some thinkers put enforcing contract as among the highest and most important functions of the state.    The notion that it could be the other way around, that there could first be a civil society and contract without a state and that the state could emerge from this as a result of a contractual agreement puts the cart before the horse.    The existence of civil society depends on the existence of the state, not vice versa.   You can make a similar argument regarding the family, that it exists independently from civil society and cannot be seen as some sort of extension of it, perhaps created by some form of contract.     Of course there is a contract at the heart of the family, the contract of marriage. There is no contract though to be a parent or child or any other kind of kin, and the marriage contract itself is a strange form of contract.    The elements of freedom and limitation that are essential to contract are both lost in marriage, and there is no specific thing that I commit to do in entering into a marriage.   If there were, there could come a time when I say that I have fulfilled my contractual obligation and therefore I have completed the contract and am now free, but this can never be the case with a marriage and if I want to undo it I have to go through a special legal process, I can’t just give notice.     If marriage is a contract at all, it is a contract that commits the parties to moving out of the sphere of civil society (in which of course they met) and into another sphere, the family, where contract no longer applies, a contract in other words to transcend contractual relations.

In short, the idea of the “social contract’, the notion that government is based on an implicit contract between it’s citizens, on which almost all modern political theory relies, is a combination of two terms specific to the sphere of Civil Society, but entirely inappropriate for family or state, and cannot be a useful tool in furthering our understanding of the political.     The term “social justice” which Rawls also uses widely is equally a muddle of two terms, one appropriate to civil society, and one appropriate to the political, and Hayek for example reasonably argued against Rawls that the phrase has no meaning  (Hayek and Rawls were potential allies and there is even a small movement of “Rawlsekians” who try to amalgamate the two into a grand libertarian theory).  To put it another way, the two essential elements of contract, freedom and limitation, are absent in the sphere of the political where we are not free but subject to law, and where there is no limitation to our obligation to comply with that law.   Rawls is just one of many to make this error of confusing the social and the political, contract and obligation.          

3.    What if Rawls is right, and justice is fairness?

Let’s imagine though for a moment that Rawls is right, and that justice is indeed fairness.    What then?     If the original question was “what is justice?” and we have answered it by saying “justice is fairness”, have we actually answered the question?    Wouldn’t it be more accurate to say that we have just given it a new name?    After all if justice and fairness are the same thing, we still need to know what that thing is, don’t we?    A philosopher, you might hope, would go on to ask the original question again, with its new name, “what then is fairness?”    And, while we are at it, “what is so great about it?”      You won’t find any answer to that in Rawls however.     He is satisfied that by saying justice is fairness he has stated his case, and all he has to do now is to flesh it out, an entirely empirical process.

The answer to the question “what is fairness?” though turns out to be quite a simple one, and much easier that the more elusive one “what is justice?”.     Fairness depends on rules being applied equally to everybody, in other words it depends on abstraction and generalisation or universality.    These are the key features of reason, which also, like mathematics, depends on abstraction and universality.    We love fairness because we love reason and we can say that fairness is a virtue that depends wholly on rationality.

4.   The Veil of Ignorance.

Let’s delve into this a little further.     Rawls says that what we need to do to decide what is just is to imagine that we are able to decide what the rules of the game should be without knowing how we will be affected by the outcome.    For example, if we want to decide whether or not we should have private property, we shouldn’t do so from our current position, because if we are well off we might be more likely to support private property than if we are not, but instead should forget about our current actual position and instead just imagine from behind a “veil of ignorance” whether in general we would accept a system of private property that allowed us to lay claim to certain possessions as our own.   In other words we should apply the rational criteria of abstraction and generalisation.    The answer in this case seems to be broadly speaking yes, though Rawls rightly notes that his theory would also be consistent with communal property;   and you could see Rawls’ argument as a conservative one that supports acceptance of the situation we live in where power and wealth are intensely concentrated in the hands of a very few in a way that seems quite unfair, on the grounds that, had anyone taken the trouble to ask, we might have agreed to establishing the rules that allow this to happen.    Rawls himself backs away from this rather extreme laissez-faire view and adds a pair of principles that he thinks a rational agent would accept if he were consulted that modify this and only allow a certain amount of difference in reward consistent with maintaining incentive but also protecting the least favoured, but it has to be said that these principles seem arbitrary and many critics of Rawls have proposed alternatives that may be just as valid.    The rational agent who “would agree” doesn’t have to be consulted of course, because his conclusion can be deduced from reason alone (meaning incidentally that he’s not a moral agent, because he has no choice in the matter), although it is unclear how any concrete conclusion can be reached in such a way and Rawls’ principles do not in fact seem to have been deduced from pure reason, but from reason plus something else as yet undefined.   ( It’s worth stressing perhaps that the original position, the veil of ignorance, justice as fairness, and the two principles constitute pretty much the whole of Rawls’ theory.    Everything else is detail and justification for these basic propositions.   And, as David Schaefer finally asks in his book on Rawls Illiberal Justice , after a long, scrupulously polite and serious chapter by chapter critique of A Theory of Justice, “How could anyone with a serious grounding in the history of political philosophy ever have believed that merely asserting two principles that, reduced to their essence, “promote equal liberty” and “help the poor” … could entitle one to the status of a philosopher, let alone the authority to dictate the goals of statesmanship?”).

Now, the question was, would we accept the rules if we had been consulted at their hypothetical inception?     The criterion we have been given for making this decision is fairness.      We run into a problem.    If fairness is the criterion, then we have to accept any rule whatsoever, because all rules are fair.   They apply equally to everyone, i.e. obey the rational rules of abstraction and generalisation.    An unfair rule, e.g. one that applies differently to blue-eyed and brown-eyed people is an irregularity, and rules must be regular, that’s just a tautology, which means an unfair rule is an impossibility.   This brings the Rawlsian argument to an impasse.     If justice is indeed fairness, then there is no way to distinguish one set of rules from another.   If on the other hand I am able to say that I would accept these particular rules, but not those ones, then I am introducing a criterion that allows me to distinguish them and that criterion cannot be fairness, because you can’t make such a distinction on the basis of something that applies equally to all of them.

It’s true of course that we can distinguish the rules we like from others we don’t, but in order to do so we have to invoke a criterion other than fairness.    And what is that criterion?    We have to consider what the rules are for if we are going to distinguish between them, which means asking what is their purpose?   And what is that?   It is, precisely, justice, because in selecting one set of rules over another you are saying that you think this set of rules is just, the other one less so.     And in order to use this criterion, you must accept that it is a different one from fairness, meaning that the original assertion that justice is fairness has been shown to be false.     The relation between justice and fairness can be expressed quite succinctly.      Fairness is a virtue of reason, and it regulates and gives shape.    We can’t do without regulation, rules are an essential part of the picture and we can call them the formal cause.    In order to distinguish good rules from bad ones we need another criterion, we need to ask what they are for, and what they are for is justice, which is therefore their final cause, their purpose, and the thing that gives them meaning.    So we can say that not only are justice and fairness not the same thing, but also that they differ from each other precisely as formal and final cause, which classical philosophy held to be irreducibly separate.    (Quick recap:    Plato gave us the notion that there are four cardinal virtues, namely wisdom, courage, temperance and justice;  and Aristotle the notion that there are four causes: material, efficient, formal and final.     If you want to explain something you have to say what causes it and you will need to take into account each of the four causes:   the stuff it is made of, the energy that went into it, its shape, and its purpose.    So for example if it’s a building, you need to talk about the building materials, the builders, the architect, and the use to which the building will be put.   If it’s “the good” you need to talk about the material cause (wisdom), efficient cause (courage), formal cause (reason) and final cause (justice).)    Fairness gives regulation, which in turn gives shape, while justice contributes purpose or meaning, and both are essential and separate aspects of the good.    Any meaningful theory of justice needs to take cognisance of this fact.    A theory of justice that reduces justice to fairness is one that not only becomes so abstract as to be without real meaning, because it can’t say why one set of rules is any better than another one, but worse, is literally devoid of meaning because the basis of all meaning, which is final cause or purpose, has been cut off from it because it denies that final cause has any existence independent of reason and instead sees it just as a result of reason itself, i.e of fairness.    It hasn’t just failed to reach any meaningful conclusion, it has made any meaningful conclusion impossible because it denies the existence of final cause, without which there can be no meaning.

In case this seems a bit abstract, let’s flesh it out with an example.   Say I propose introduction of a law that anyone convicted of theft should have his right hand cut off.    If I succeed in getting this enacted, it would certainly be fair, because it would apply equally to everyone irrespective of position or status, and it would be well known so everyone would know equally where they stood and what is likely to happen to them if they transgress.    But it is just?    We have to consider its purpose, perhaps to prevent crime and provide suitable punishment.     Some, including maybe many who live under regimes where this is indeed the case, might argue that this is just, and point to the very low rate of property crime to show its effectiveness.     Most of us would demur and say that this punishment seems disproportionate and not quite just.    Now, if fairness is the only criterion of justice, we couldn’t say this.     To say something is disproportionate is not the same as to say that it is unfair.   It is to say that that it seems too harsh, draconian, an excessive use of force, medieval in its brutality, in a word, unjust.    This illustrates a second important distinction between fairness and justice.     We can say with some certainty whether or not something is fair, which is really an either/or question, i.e. is everyone treated the same, or not;  but we cannot say with the same certainty whether something is just.    It is a more subjective judgement that really depends on a system of justice and such systems can differ, and still be equally just.    Rawls’ plan on the other hand is to lay down the law as to what actually is or is not just.     This is hubristic.    Philosophers are not possessed of a higher moral sense and do not know better than anyone else what is just, in fact in most cases, including the present one where justice is confused with fairness, they seem to know a good deal less.  It is not our job to tell those in power what to do, or even to lay down general principles we think they ought to follow.    If philosophy can contribute anything, it is knowledge of what justice is in itself, and that is not a question that is addressed by Rawls.

5.    Government and Power.

While we are on the topic of causes, there are two more in the classical picture one of which in particular is conspicuously absent in Rawls, and that is efficient cause or power.   Power is the essence of government, the one thing it can’t exist without.    Nobody has power over me in civil society, and though I may have to do the things I have contracted to do, my job for example, I always have the option of terminating the contract if I don’t want to comply any more with its demands.   It’s different with the state, and the government above all rules, and if I decide not to comply it can bring down on me the full force of the state apparatus of physical power if necessary.   I may have the option not to comply but if I take it I run the risk of punishments that include removal of my right to participate in civil society, and I certainly don’t have the right to terminate my contract if I don’t want to obey the law, or even to opt out by emigration (I may be permitted sometimes to do that but it is never a right, and I wherever I emigrate to I still have to obey the local law).    Power is what turns a rule, determined by consent, into a law, which is not.

Modern political theory doesn’t much like the concept of power which it sees as irrational and prefers the view that we comply with the rule of law because we agree to rather than because we have to, which may be true but doesn’t change the fact that if we don’t want to comply then we may be forced to.   It’s not optional.       Looking at the history of political theory we can trace a gradual diminishing of the concept of power in the modern period, a gradual fading of truth into abstraction.    In Machiavelli, who is really pre-modern, power is still fully integrated into his political thinking and his is a true political theory that fully understands the specificity of the political, never muddling it with the social as so many subsequent thinkers do.    In Hobbes the separation of power from the rest of the theory is beginning and though power is important, and Hobbes is especially clear that the difference between the rules of a club and the laws of a state is precisely the power that the latter are supported by, it is nevertheless secondary and required only because men cannot be trusted to keep to their agreements.    In an ideal world for Hobbes power would not be needed and though Hobbes has no illusions about such a world being possible it means that the relationship between government and power has become an external one, and power something that has to be added subsequently to the original contract that creates government, while Machiavelli understood that without power government is nothing.     With Rousseau power plays a lesser role, but with his chilling talk of “forcing a man to be free” it remains an unfortunate necessity.    By the time of Kant it is becoming irrelevant and in Rawls we can say that it has almost entirely vanished.    The state is just the same as a club or a business, just writ large, in fact it is a part of civil society, not distinct from it:  state and society are the same thing, all based on contract.    This theory of justice is not a political theory at all, because it does not distinguish the state from civil society, or justice from fairness (same thing), and in a later work on international law The Law of Peoples Rawls declines even to speak of nations or states:    they are just “peoples”, the plural of the plural of a person, mere aggregates.   There is no polity that a political theory could be about.    At best this theory of justice is a moral theory directed vaguely towards those in office, as well as towards citizens encouraging them to dutiful behaviour (except when they know better, when they can and maybe should acquaint the government with the error of its ways through civil disobedience);  and because of the impasse identified earlier it’s not much good as that either, certainly no better than the Kantian categorical imperative from which it is of course derived.    It’s questionable even whether it functions as a moral theory, since it depends on rules (“principles”) and someone who is governed only by rules is an automaton, not a free agent, and has no moral agency.

What is the basis of the power of the state?     Ultimately it rests on one thing which is military power, and that means it depends on the service of armed men willing to put their lives in danger to protect it, which means that it depends on the virtue of courage.     Courage is the efficient cause of the state and without courage the state, its laws, its justice, could not exist, in other words it is not just a cause but an essential cause, a sine qua non, something without which justice would remain just an ideal, an abstraction, never a real thing.   Any theory of the political that does not take into account efficient cause, or power, and the virtue of courage it rests on, is one that will be condemned to remain forever abstract and ineffectual, impotent in fact.   So we can say that salient features of Rawls Theory of Justice are that it has no final cause (lacks meaning) and no efficient cause (lacks force).   

6.   Four Quadrants.

We can piece this together into a theory of four quadrants.    The truth, which is also the good, is the whole, represented as a circle, which is divided into four sections corresponding to the four cardinal virtues and the four causes.    The first quadrant, the beginning, is the material cause and the virtue of wisdom, absent from Rawls who is intent on abstracting away from any empirical data or context.     The second, the efficient cause, is the virtue of courage, for reasons we have seen, and likewise absent from Rawls.   The third is formal cause, which is reason with its virtue of regulation, or temperance as it is usually translated in the classical theory and the only part that features in Rawls’s thinking;    and the fourth, the final cause, purpose or meaning, is justice.    It looks something like this:


                                                                   THE GOOD





It’s a simple enough theory with only four elements, but it is more complex than modern theories that with only a few exceptions assert or assume the dominance of the third quadrant, reason and formal cause, and imply that all the others can be expressed as manifestations of these.    Now the point of both the cardinal virtues and the four causes is precisely that they stand alone and cannot be reduced to each other.     If justice were indeed a manifestation of reason, then justice would not be a stand-alone cardinal virtue, but just a sub-category of reason, and the theory of the cardinal virtues would fall, and if final cause could be deduced from formal cause, then the same would follow for the four causes.    (If you are interested in looking further into the notion of four quadrants it’s worth checking out the work of the US psychologist Ken Wilber, or perhaps the German esoteric Wolfgang Dobereiner, whose work I have drawn on.).

One could reasonably expect an eminent professor of philosophy to be aware of these fundamental principles of classical philosophy, and indeed if it could be shown that justice can be deduced from reason and final cause from formal cause, so that the classical theories are wrong, this would be an original and hugely significant contribution to philosophy.     Unfortunately you will look in vain for such a critique of classical thinking in Rawls or indeed anywhere else that I am aware of.    What you find instead is just an assumption of the primacy of reason, the third quadrant, and one that appears to be unaware of its own existence as an assumption, let alone its profound opposition to basic principles of classical philosophy.   “Rawls” as Habermas said “is a product of a school which thinks that it invented philosophy”, and which takes it for granted that earlier thought is nothing more than a more primitive and less enlightened version of its own.

Underlying Rawls’ theory are two reductions. Firstly the good, which in the four quadrants is the whole, is reduced to justice, quadrant 4, so that the good is “congruent with” the just, pretty much by definition as the good in Rawls is simply what you would choose in the original position.    Secondly the just is immediately reduced to the fair, quadrant 4 to quadrant 3, so that the just is nothing more than the fair, again pretty much by definition as what you would choose in the original position is what seems to be fair.    The good and the just in fact simply evaporate, because they can everywhere be replaced by the fair, which represents their truth.    The good, in Rawls’ account, is nothing more than “that which it is rational to want”.    Quadrants 1 and 2, wisdom and courage, are passed over.   How could one “rationally want” to sacrifice one’s life in battle?    What benefit could wisdom offer when all moral values can be deduced from fairness, especially when to figure out what is fair, you need to impose a “veil of ignorance”, the opposite of wisdom?   You don’t need any empirical knowledge or context at all, in fact you need to suppress it:  everything can be worked out from rational principles alone.    Courage and wisdom are not virtues apparently, and the only virtue is fairness or regulation, following rules, self-control, which is the same thing as justice so that’s not a virtue in it’s own right either.

 The development of modern philosophy in general in this picture can be seen not as a gradual process of refinement and improvement, culminating in the perfection of analytical philosophy, but one of increasing erosion and abstraction, where the virtues and causes in particular gradually fade away, like the Cheshire Cat, leaving only the grin of fairness and reason.    Where we might like to find distinct, clear concrete notions we find instead critically important ideas such as justice, fairness, society, the state, laws, rules, contract, consent, obligation, family, and even the good itself all mushed up together into a kind of porridge in which these and other ideas lose all independent meaning and merge into each other, all simply manifestations of the same abstract, empty notions of fairness and reason.       


7.   Rationalism and Philosophy

So we can return to the question I asked at the outset, how is it that this mass of indistinct ideas, lacking both meaning and power, can be the best that contemporary philosophy has to offer in the area of political theory?    One answer I would suggest is that contemporary philosophy is in thrall to the ideology of rationalism, the belief that he truth is to be found in reason, and reason alone, which encourages a peculiarly narrow approach to philosophy.     This is not something it is aware of as a belief, but an unquestioned assumption, as the most effective ideologies usually are.   Rationalism may not be universal, see for example Michael Oakeshott’s famous essay Rationalism in Politics, but it is very dominant in modern thought.     After all, you might think, if you can’t believe in reason, what hope is there for philosophy?     But rationalism isn’t a belief in reason so much as a belief that reason gives rise to truth, and the antidote to rationalism is not irrationality or superstition, but an understanding that reason is a tool that we can use in trying to discover the truth, but not the truth itself or its source.   This was Plato’s view exactly.    And actually, when you look at the assertion that reason is the source of truth, it’s not hard to see that it is a mistaken one.     Reason, at least for modern philosophy, like mathematics depends on abstraction and generalisation and while it can express certainty, it cannot express any concrete truth precisely because it has to be abstract and general so is by its nature cut off from the particular and can’t say anything specific at all.    This is true in general of modern philosophy (ever since Descartes led it up the rationalist blind alley when he made the mistake of equating certainty and truth) and we saw in particular, just to cite a concrete example, that it was true of Rawls’ theory of justice which was stuck in the impasse that the abstract criterion of fairness applies equally to all rules so it couldn’t on that basis distinguish between them, in other words it could not make the transition from the general to the particular which is required if it is to say anything true.

So what is philosophy in fact, if not the application of reason?    In the classical definition attributed to Pythagoras it is a love of knowledge that does not claim to be possession of knowledge, and it was defined in particular as the opposite of sophism, which did make such a claim.   Now, I’d be the first to agree that words can change their meanings over time and even turn into their opposites.     It seems clear that few people use the term “philosophy” in its classical sense nowadays and indeed it does seem to have turned into its opposite, sophism, as modern philosophy, much as it cannot agree about the truth or even whether such a thing exists, nevertheless in particular instances such as the present one does lay claim to true knowledge, in this case that justice is fairness, which formally is just the same as Thrasymachus’ sophist argument in Plato’s Republic that justice is the interest of the stronger, in other words a claim to know the truth.    So if the word philosophy has changed its meaning, what is its meaning currently?      What are the criteria by which we say x is a work of philosophy, and y is not?  Is the new definition of philosophy a useful one?    I don’t know the answer and from my limited reading of contemporary philosophy I’m not sure anybody else does either, and this may be not so much an unanswered question as an unasked one.   We know what philosophy is because we know what is on the syllabus, when really we should know what it is first so we can then say what should be on the syllabus and why.     “Sophism” seems apt, but has pejorative connotations.     How about “Rationalism”?  Belief in the power of reason, the supremacy of the third quadrant, does seem to be a uniting factor in all those diverse notions that one comes across under the heading of philosophy these days so perhaps it has the virtue of accuracy at least.    It’s consistent too with another modern fancy about philosophy, that it has to do with abstract thinking, which is a characteristic of reason, but shouldn’t be one of philosophy (Rawls characterises his argument as taking Kant’s to a higher level of abstraction, apparently taking it for granted that a higher level of abstraction is a good thing).     The problem with that is that as soon as you have understood that rationalism is not just a reflection of reality, but a belief, it is but a short step to the realisation that it is a mistaken one, that reason is just one quarter of the truth and that all four quadrants have equal value and independence and must all be part of any account that is true;  and that realisation would take us back to the classical definition of philosophy as love of the truth. 

8.   Mysticism and magical thinking.

It is often objected to the classical view, and in particular to Plato’s notion that ideas (such as justice and courage, to put this in the context of the current discussion) exist independently and in their own right, rather than for example as mere manifestations of reason, that ultimately it is a mystical one, and this is true enough.     Life is full of mystery and the way we share ideas and values, indeed the notion of value itself, is one of the greatest.     In mythology it is the power Adam gained when he ate the apple, the power of discrimination, the knowledge that marks us out as different from the rest of creation, but which also has the significance of being a curse, of propelling us from the blissful womb-like state of paradise into the fallen condition we actually live in.    Plato thought that ultimately philosophy could only scratch the surface of these profound mysteries and I too would say that although in saying that justice is the final cause of the good I am saying something concrete and meaningful about that great philosophical puzzle, whereas Rawls says nothing at all (if he says anything it is about fairness, a different concept), I also recognise that it is only a sketchy beginning.    In one sense, because I am comfortable using the word justice, I must know what its meaning is, but I’m equally aware that if I try to pin that meaning down in a reductive way, by trying to define it as perhaps fairness or as the interest of the stronger, it will elude me, and the philosophical alternative which is to try to describe it as it is in itself – perhaps as Plato did by trying to describe an ideal state – is also an elusive and difficult task.   But that speculative task is what falls to philosophy, and it is something Rawls does not consider.

To those of you who feel that any mystical view is to be opposed at all costs, perhaps because of your commitment to reason and rationalism, I think it is worth drawing the distinction between mysticism, which can be profound and thoughtful as well as based solidly in reason, and magical thinking, which is neither and is what most of you mean when you invoke the spectre of mysticism.    An interesting thing about this is that the down to earth rationalist empiricism in philosophy which you might support as an antidote to mysticism is itself full of magical thinking.     There are some good examples in Rawls.    The “difference principle”, which says it’s OK for you to have a bigger slice of the cake than me as long as mine also increases a bit, a trick which is possible because your big slice makes the whole cake grow by incentivising you to greater productive activity which benefits me too, seems like wishful thinking at best, especially if you are a banker, and is certainly unverifiable.     Or consider for example his idea that in the hypothetical original position there is no notion of the good and it is only in the process of making an agreement that the good is defined.   If this were true it would really be magic, something coming from nothing, which is one of stage magic’s staples.    But in this case it’s only conjuring, because the truth is the opposite, that you can’t make a contract unless you already have the notion of the good, because you can’t make a contract unless you can discern that outcome x is better for you than outcome y.    You pulled the good out of the hat, but could only do so because it was hidden in there in the first place.    (Rawls himself seems unclear about this, for example here where he seems to both deny and assert the notion of the good in the original position in the same sentence:  “While the persons in the original position do not know their conception of the good they do know, I assume, that they prefer more than less of the primary goods”.    The confusion here seems to be between the notion of the good, which must exist in an original state, otherwise you couldn’t talk of primary goods because you wouldn’t know what good means, and the many examples of the good you can experience once you have the notion.   When Rawls says they don’t know their conception of the good what he seems to mean is that they still have to develop concrete examples of what specifically is good for them;  but they cannot do this if they don’t “know their conception of the good”.   This is a category error, confusing the notion with examples of it, or with those things you can experience once you have the notion, but cannot experience without it, the form of the good with its content).    Contractarian theory in general is based on magical thinking.    Nobody now argues that there was ever an actual original contract that founded government or a real “original position” that preceded it.    The argument is “counterfactual”  (itself a word that seems to have been invented for the case, to avoid having to say “imaginary” or “untrue”) and says that even though it is not true, it is somehow helpful to think about things as if it were.     This is an argument that is completely detached from reality, and if you believe in it that can only be because you want to, even though you know it’s not real, and that is pretty much the definition of magical thinking.   “ Where no Gods are, spectres rule”.     I don’t believe in magic, but I do put my hand up to being a mystic, or at least not an atheist, because reason forces me in that direction, just as it did the founding fathers of philosophy.    We may believe that we with our modern ways are more enlightened now than those ancient thinkers, but that is a conceit that is not warranted by the facts, and it turns out that they anticipated our current errors thousands of years ago, certainly in the realm of political theory.

9.   The Reality of Moral Choice

Hopefully by now you are detecting a common theme, which goes beyond Rawls and includes wider aspects of contemporary philosophy.    There’s a small problem, and a bigger one.    The small problem, which perhaps isn’t so small, is this.     If a theory of justice has to work out what justice means, and previous theories such as the utilitarian one are false, this means that until we have worked out what justice actually does mean, we are stuck in a limbo where we don’t know the meaning of this critically important concept.     If we talk about justice in daily life, we don’t really know what we are saying, because we are not party to the great philosophical theory that is required to explain what the concept actually means.      This means that we are being irrational and that the concept we use is not really valid at all because it hasn’t yet been validated by philosophy (Rawls is explicit on this point: his argument in his view trumps our everyday understanding) and if philosophy hasn’t yet made sense of it, how can we?     This surely is back to front.   If philosophy has a value it must be to elucidate what we really do mean, and not to tell us that we are wrong.   But if Rawls’ theory is right, what we generally mean by justice (retribution, punishment, control) is radically mistaken.    What are we to make of a theory that tells us that the meaning of a word is actually quite different from what we think it is when we use it?    It sounds like something that only Humpty Dumpty could make sense of.

That’s the small problem.   The big problem is this.    For modern ethical philosophy the challenge is to say what is right.   It interprets this as giving a direct answer to the question:   what is right is x, where x is a certain predicate of the right:   it speaks of the content of the right, not its form.   For Rawls x is fairness, for others it is utility, or something else.     It means that once you have decided what x is, you have your answer.     This means that the decision of what is and is not right is decided.   For Rawls it is fairness, and using your two fundamental principles derived from fairness, you can in principle decide a correct answer to every moral question.     Now, if your answer is correct, and Rawls uses this term quite freely, you can’t rationally disagree.    If you act otherwise, this is an irrational act.     The question of what is moral or not is only a question of whether you obey the rules, respect the principles, or not.    As long as you decide to obey the rules, i.e. to be rational, not irrational or preferring your own private interest to the general interest, you are perfectly good.     There is no wrong beyond irrationality, self-interest, “noncompliance” (there’s a striking passage in  A Theory of Justice #66 where in characteristic make-it-up-as-you-go-along style Rawls explains that the unjust, the bad, and the evil are to be understood as varying degrees of noncompliance).

The idea that you can be perfectly good is rarely expressed directly, but it is a consequence of most modern ethical theories.   These theories after all try to set out for you rules that decide whether or not your actions are good, and this is certainly true of Rawls.     But if you follow rules, you have no free will, no moral agency.     There is no right or wrong, only rationality and irrationality (fairness or unfairness in this case), and as long as you are rational and follow the rules, you will be perfectly good, beyond criticism.     For morality to be a reality though there has to be a real choice between right and wrong.    This means that the right and wrong have to be real things, not just abstractions ultimately derived from reason, and you have to have a real choice between them.     This intuition, which is the basis of all morality, is expressed, perhaps paradoxically, in the notion of original sin, the idea that you cannot be perfectly good and that the bad is also part of your nature.     Often seen as a negative view of humanity, the notion that we are all tainted with sin properly understood is the basis of all morality, because if you don’t have a real choice between good and bad then you don’t even have the potential for moral action.    At best you have the potential to avoid the irrational, in other words to avoid following your passions, oddly enough something that is widely seen as a praiseworthy as well as pleasant thing to do in most circumstances.      The reality of daily moral life, the kind of dilemmas we find expressed in stories from great literature to soap operas and gossip, where the participants don’t have an absolute answer but nevertheless have to make a choice are simply not allowed for in these abstract theories.     Morality may be a beautiful thing, but perhaps like all beautiful things, justice in particular, it is nothing without its dark side, and you cannot be moral if you do not acknowledge the dark side within yourself.    Without that morality is just smugness.    In four quadrant theory, ethics belongs in quadrant four, whereas modern ethical theories like Rawls’ are worked out in quadrant three, and cannot touch the ethical dilemmas that don’t have perfectly logical solutions that are the stuff of ethical life, because they operate only in the quadrant of abstraction and generalisation, of reason and fairness, and not in the quadrant of justice where ethical life actually takes place.

The notion that what philosophy has to do, in relation to the question “what is justice?” is almost universally in modern philosophy understood to be to give a definitive answer, justice is utility, or fairness, or the interest of the stronger, or whatever, and to derive from that principles that will give you a correct answer to every moral question, if only you have enough information to make the correct calculation.     Classical philosophy has a different view.    The point is not to give a definitive or predicative answer to the question, so that no choice remains, but to respect the notion of justice, and to try to understand what it is in itself.     This means accepting that you can’t reduce it to something else, or define it, but also understanding that this doesn’t mean you don’t know what it means.  On the contrary, your notion of justice, intuitive as it may be, is the reality of justice and is already ahead of the understanding of those philosophers who try to turn it into something else, or to explain to us that it is something different.    Plato made a fine job in The Republic of trying to describe justice without reducing it to anything else by describing his view of an ideal state and while nobody would argue that that state would be ideal today, or maybe even in his own time, it is also the case that his speculative approach to the great question of what is justice is a truly philosophical one.    A theory of justice must address the question of what justice is in itself, and must resist the temptation to change the subject by redefining justice as something else, such as fairness, and talking only about that and leaving the critical question of what justice actually is untouched, but this is unfortunately exactly what happens in Rawls’ A Theory of Justice, as well as in most modern moral and political theories.