Is Justice Fairness? A four quadrants critique of John Rawls A Theory of Justice
1. What is Justice?
The question what is justice is one of the most important in
philosophy, and pretty much definitive of the field of political theory, if
indeed it makes sense to talk of political theory as a special branch of
philosophy rather than as an essential part of any philosophy. According to John Rawls, the best way to
think of justice is as fairness, or at least, he argues, it is better to think
of justice as fairness than the two alternatives of maximum utility, or as
something known intuitively, which for him seems to exhaust the possibilities. In practice he pays scant attention to
intuitionism, and his argument therefore is in essence a defence of Kant
against Mill and other utilitarians.
Rawls is careful
always to speak of “justice as fairness,” and says that this does not mean that
“justice is fairness, any more than the phrase “poetry as metaphor” means that the
concepts of poetry and metaphor are the same”.[1] This seems a questionable distinction. If someone was to speak of poetry as
metaphor in a work entitled A Theory Of Poetry, and didn’t mention anything
else poetry might involve apart from metaphor, you would have to conclude that the
argument is indeed that poetry and metaphor are the same. It’s the same with Rawls who speaks only of
justice as fairness without mentioning anything else that might be another
aspect of justice throughout A Theory of Justice, (thought there are
hints in later works that he accepts that there may be other aspects, still
unspecified) and it seems that the theory is at the least that justice is
defined as fairness, and this implies that justice is explained by, therefore caused
by, and therefore a result of fairness. It wouldn’t be very interesting otherwise: a theory that fairness is only one of many
aspects of justice but which spoke only of fairness without mentioning any of the
others wouldn’t be much of a theory.
At first sight the assertion that justice is fairness seems
innocuous enough, 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 (as fairness might require) so much as 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, retribution 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.
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, yet A Theory of
Justice is widely regarded as the most important work of political theory
of the twentieth century and has had a profound influence on the development of
law especially in the USA. It is hard
to imagine any theory based on a definition of the subject matter of its title 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 to happen, a question I’ll return to in section 6
below.
As well as the notion that justice is fairness, there are
four other elements to Rawl’s theory:
the Original Position, the Veil of Ignorance, and the Two Principles
(Maximise Freedom, and The Difference Principle which permits advantage to one
party so long as other parties also gain some benefit but not otherwise). These have been widely debated and in the
interest of brevity I don’t propose to discuss them in any detail here. All involve the notion of justice as
fairness, and if this proposition is false, then the four other aspects of the
theory also fall, so I will concentrate on the notion of justice as fairness. Let’s start by looking at where the virtues of
justice and fairness 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. 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 as well as all commercial life, indeed in many
European languages the word for “Company” is the same as the word for “Society”. 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, 4 below) and secondly, any attempt to ground
either the family or the state in some kind of contract, however imaginary or counterfactual
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
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. The family too exists
independently from civil society and is not created by contract.[2]
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. [3] 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 limit
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.
More specifically, Rawls’ theory is essentially that everything,
ideally, is civil society, or “social”.
The state and the family, which don’t follow the rules of civil society,
are for the most part ignored, and in the few places where Rawls acknowledges
their existence it is only to contemplate their abolition on the grounds that
they don’t comply with his theory.[4]
3 Is
Justice Fairness?
In the Original Position and under the Veil of Ignorance the
question we have to ask boils down to, would we have accepted the rules of the
game 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 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 we are saying that we think this set of
rules is just, the other one less so.
And in order to use this criterion, we 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. But we don’t
want rules for the sake of rules, but only for a purpose, and that purpose is
justice, which is therefore their final
cause and the thing that gives them meaning. So we can say that not only are justice and
fairness not the same thing, but also they differ from each other precisely as
formal and final cause, which classical philosophy held to be irreducibly
separate.[5] 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 and is really just advocating rules for the sake of rules; 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.
Let’s take an example.
Say I propose introduction of a law that anyone convicted of theft of a
certain degree should have his 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? Some might say it is, while most westerners
at least would probably 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 precision
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 don’t 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 an understanding of what justice is in itself, and that is not
a topic that is touched upon by Rawls.
4. Government and Power.
While we are on the topic of causes, there are two more in
the classical picture both conspicuously absent in Rawls, and one of these is efficient cause or power (we’ll come to the other, material cause or wisdom, shortly). 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. 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, which depends
on consent, into a law, which does 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 society and the laws
of a state is precisely the power that the latter are supported by[6],
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. In Rawls we can
say that it has almost entirely vanished.
The state is 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 (a view not confined to Rawls, but pretty much definitive of
contemporary liberal thinking). 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, for which government should be suitably grateful)[7]; 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 and women
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).
5. 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 more
commonly just 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. [8]
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”[9],
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”[10]
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”. [11] 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, and since this is the
same thing as justice, justice is 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.
Perhaps Rawls represents a kind of culmination of this process of
abstraction, and it’s hard to see how social contract theory could become any
more abstract, with the “state of nature”, arguably the most interesting aspect
of earlier social contract theories, having been reduced to an “original position”
in which all empirical data, context and even conceptions of the self have been
eradicated. The net result is that where
we might like to find distinct, clear concrete ideas we find instead critically
important notions 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.
6. Rationalism and Philosophy
So we can return to the question I asked at the outset, how
is it that this morass 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 alone, in the dominance of the
third quadrant, which encourages a peculiarly narrow approach to
philosophy. This is not generally something
it is aware of as a belief, but an unquestioned assumption, as the most effective
ideologies usually are. Rationalism may
not be universal,[12],
but it is extremely 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. On the other hand, if you are firmly
convinced that philosophy is essentially a process of deduction and that truth
can only be derived from Reason, then you might well find it hard to improve on
Rawls, who certainly shares your belief, and you might find yourself buying
into his theory, in spite of its evident weakness, on the grounds that within
the confines of the rationalist perspective it is indeed hard to think of
anything better.
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. It implies the notion that the truth is
independent of our thinking, something to be discovered rather than deduced,
while sophism holds that there is no truth independently of reason. Of
course the word philosophy no longer carries that meaning in normal usage, and
while modern philosophy hasn’t reached any consensus as to what the truth is or
even whether such a thing exists, it is quite the norm for individual
philosophers to make a claim to know the truth, and for that claim to amount to
their claim to fame, in this case, that justice is fairness. In other words, modern philosophy is equivalent
to sophism, and it doesn’t believe in the independent existence of the truth,
or that there is any knowledge that can be discovered.
If the truth doesn’t exist independently of reason, what
remains for philosophy? Really nothing
more than sophisticated reasoning, and cleverness with abstract thought. Philosophy becomes a kind of mental
gymnastics. Where classical philosophy
abhorred abstraction, modern sees it as a virtue, and none more than Rawls, who
characterises his argument as taking Kant’s to a higher level of abstraction,[13]
apparently taking it for granted that a higher level of abstraction is an
improvement, and implicitly criticising Kant for not being abstract enough. But increased abstraction is only going to
make things worse, and it is the belief in reason alone that the love of
abstraction stems from that needs to be examined. The problem is that belief in reason is
just that, a belief, and it is only a short step from understanding that it is
a belief to realising that it is a mistaken one, and that actually reason is
not the only ground of truth, but just one quarter of it and that all four
quadrants have equal value and independence and must all be part of any account
that is true; and that realisation takes
us back to the classical definition of philosophy as love of the truth. The
modern view of philosophy as sophism is not just an understandable historical shift
in the meaning of words. It is misconceived.
7. 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
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 [14] 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 one Rawls does not begin to engage with.
To those who feel that any mystical view is to be opposed at
all costs, perhaps because of a 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 people mean when they invoke the spectre of
mysticism. An interesting thing about
this is that the down to earth rationalist empiricism in philosophy that is
often seen as an antidote to mysticism is itself full of magical thinking. There are many examples in Rawls. Perhaps the best is the notion that in the
original position there is no notion of the good and that this notion is
created in the process of deliberation as to what rules you would and would not
accept. The creation of something from
nothing is a staple of stage magic, because it’s obviously impossible. In this case the reality is that you can’t
make the distinction between what you would and would not accept in an original
position unless you already have a notion of the good, without which you can’t
know what is better or worse for you, and the idea that this notion somehow
materialises from nothing is pure magical thinking. Rawls’ own account of this is seems muddled. For example he says “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”[15]. The confusion here is 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. There’s no sliding scale of the good. You
either have the concept or you don’t, and if you do the possibilities are
infinite from the outset, and there is no gradual accumulation of “conceptions
of the good”.
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.
8. The Reality of Moral Choice
Hopefully by now a common theme is emerging, 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)[16]
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. The distinction between 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. The “difference principle” explicitly
calculates good and bad arithmetically:
if my portion shrinks, by however little, that is bad, if it grows by
even the slightest amount that is good, and all that matters. Now, if your answer is correct, and Rawls
uses this term quite freely[17],
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 for example where in characteristic make-it-up-as-you-go-along style
Rawls declares that the unjust, the bad, and the evil are to be understood simply
as varying degrees of noncompliance with his theory.[18]
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 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 ethical life, the kind of dilemmas we find expressed in stories from
great literature to soap operas and gossip, where the participants don’t have a
perfect solution but nevertheless have to make a choice and deal with the
consequences are simply not touched by 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 your own self. Without that
morality is just smugness, with, in Rawls’ case, shades of Political
Correctness. In fact Rawls is so
satisfied with his own theory that he said that a life lived without it is not
worth living, so if you are inclined to disagree with the theory, and hopefully
by now you are, you know what he thinks of you and how safe your life would be
in his hands if he were ever to attain a position of power. 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 (same thing) or explain it (also same thing),
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 the truly philosophical one.
A theory of justice must address the question of what justice is in
itself, and must resist the temptation to substitute an easier question by
redefining justice as something simpler, such as fairness[19],
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.
[1] John Rawls, A Theory of Justice, OUP 1980,
(hereafter TJ), p 13
[2] 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.
Kant talked of the family in terms of contract; Hegel described this as “shameful”.
[3] http://www.politics.ox.ac.uk/materials/centres/social-justice/working-papers/SJ017_Lister_MirageofSocialJustice.pdf
[5] 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).
[8] 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.
[17] For example TJ p 48 where he talks of a “correct decision”. This explicitly in the context of a
judgement, but if you have to make a judgement, how can it possibly be correct
or wrong? If that were the case there
would be no judgement to be made. This is another category error.
[19] See Daniel Kahnemann, Thinking Fast, Thinking Slow, for an exposition of this universal
tendency we have to deal with difficult questions by substituting easier ones, which
in many cases give the exact opposite of the correct answer. For example,
what shares should I invest in? Correct question: which ones are undervalued? But this is hard. Easier substitute: which ones do I like? Result:
I buy fashionable shares that are overvalued because they are
popular. The entire stockmarket is
skewed by this effect as Kahnemann shows,
and he also shows empirically that professional fund managers
consistently score worse than random choice in selecting investments, perhaps
because of it.
