Justice Lite

Political Liberalism
by john rawls
columbia university press, 401 pages, $29.95

Americans are justifiably anxious about the stability of their society and its institutions. Almost forty years after Brown v. Board of Education and almost thirty after the Civil Rights Act of 1964 and the Voting Rights Act of 1965, racial harmony seems as far away as ever. In some sense, the prospects of harmony have even receded. Difficult as white-black relations have been and are, the influx of Hispanics and Asians promises to make the tensions even greater as Americans fight over group entitlements. Radical feminism and the homosexual rights movement are dividing us even further, while the madness of multiculturalism threatens to make our culture a chaos. Public respect for the institutions of government is low and sinking. 

John Rawls’ latest book, Political Liberalism , focuses on the problem of stability in a diverse, democratic, and liberal society. He recognizes that it is impossible that citizens of a free society should agree on comprehensive religious, philosophical, and moral doctrines. As to such matters, we are, and always will be, divided. What can be hoped for, he thinks, is an overlapping consensus on principles of political justice, on the principles, that is, of a form of constitutional democracy that provides fair terms of social cooperation between citizens who disagree, reasonably, about much else. An air of unreality arises at the outset of his argument, then, because much of what fragments our society is not disagreement about reasonable, comprehensive doctrines but group animosities and fights for material advantage (often phrased in moral terms). Still, as stated in outline, Rawls’ endeavor sounds useful.

Unfortunately, but predictably, Rawls approaches his topic not through an examination of American society, its institutions, and its stresses, but through a highly abstract and complex contractarian theory that advances a political agenda whose main appeal will be to persons already of left-liberal persuasion. As he did in his 1971 book, A Theory of Justice , Rawls places representatives of citizens behind a “veil of ignorance” in which no one knows what positions the persons represented will occupy when the veil is lifted and life in a real society begins. These representatives, who apparently believe their principals to be highly risk averse, arrive at two principles of political justice:

a. Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their full value. b. Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society.

The first principle seems unexceptionable, at least until it begins to receive more concrete meaning. On its face, however, the second condition of the second principle, which survives from Rawls’ previous book, raises a warning signal. What reason is there to believe that people behind a veil of ignorance would adopt so Draconian an egalitarian stricture? What reason is there to think that justice requires that there be no social or economic inequality unless the least advantaged in the society receive the greatest benefit from that inequality? There are no good reasons, of course, and the tendency of the condition is pernicious. It condemns all actual societies, including that of the United States, by setting a requirement that can never be satisfied. This legitimates, from a left-liberal perspective, a ground for perpetual attacks upon and hostility toward the hierarchies and lines of authority of this society as it is, or even as it may become.

That characteristic of his philosophy aside (which is a little like saying, “Other than that, Mrs. Lincoln, how did you enjoy the play?”), Rawls’ argument leaves the world we know for one imaginable only in a seminar. Early on, he tells us: “The aim of justice as fairness, then, is practical: it presents itself as a conception of justice that may be shared by citizens as a basis of a reasoned, informed, and willing political agreement.” If that means that citizens are to understand and accept Professor Rawls’ reasoning, or even its main outlines, then the possibility of realizing his “practical” aim is zero. For this is an endlessly complex and exceedingly abstruse argument that will be followed only by a few academics working the same line of country.

If Americans did understand Rawls’ reasoning, moreover, they would never accept the extremely egalitarian model of political liberalism he offers. His ideal society is utopian and can for that reason only be approached by coercive methods. It is to be feared that such methods are what he has in mind, and that the instrument of coercion is to be the judiciary: “Judges are expected to have a deeper understanding of society’s conception of political justice than others, and a greater facility in applying its principles and in reaching reasonable decisions, especially in the more difficult cases.” This suspicion is confirmed when he turns to “the basic liberties and their priorities” in relation to the Supreme Court’s free speech jurisprudence.

Advocacy of violent revolution is to be protected by the courts unless lawlessness is imminent. This is indeed the way the Supreme Court now reasons; yet if the constitutional regime is just, as Rawls says his is, and if the polls are open, it is impossible to see what value there is to advocacy of violent overthrow of a democratically elected government. To suppress advocacy of revolt, Rawls says, is to suppress advocacy of the reasons given. That, of course, is not true. Socialism, for example, can be advocated without advocating the violent destruction of a democratic regime. Rawls’ other tactic is to confuse the danger of advocating violent overthrow of the government—necessarily a minority project—with the advocacy of a policy that might be dangerous if a majority adopted it. But constitutional protection of the latter does not require protection of the former. On the other hand, Rawls has no difficulty justifying the suppression of speech by those having what he regards as disproportionate influence—corporations, wealthy candidates for public office, etc. He also appears to endorse the Supreme Court’s one person, one vote decisions without worrying about the fact that those decisions draw on nothing in the Constitution or in our historical political arrangements.

This suggests that Professor Rawls, like his legal academic admirers, is prepared to have judges implement his philosophy whether or not there exists any actual constitutional principle to support it. In the end, therefore, Political Liberalism is not merely unworldly and egalitarian beyond reason but contains strong authoritarian elements inappropriate to a constitutional democracy. It is a matter for regret that the book reflects so well much of the current academic mood.

Robert H. Bork, the John M. Olin Scholar in Legal Studies at the American Enterprise Institute, is author of The Tempting of America: The Political Seduction of the Law.