Rawls round-up

There’s been no shortage of Rawls talk in the blogosphere over the last week or so.

Warning: lots of Rawls-related (but otherwise un-related?) stuff to follow.

(i) Larry Solum’s Legal Theory Lexicon discusses the “Rule of Law”:http://lsolum.blogspot.com/2004_01_01_lsolum_archive.html#107322120903508857 and offers a schematic Rawlsian view of it. (Solum has done students of legal and political philosophy a great service by posting an index to his Legal Theory Lexicon entries “here”:http://lsolum.blogspot.com/2004_01_01_lsolum_archive.html#107290420215566142.)

(ii) “Will Wilkinson”:http://www.willwilkinson.net/flybottle/2003_12_28_archive.html#107265478263410676 and “Matt Yglesias”:http://www.matthewyglesias.com/archives/002219.html#002219 seem to agree that Rawls didn’t really save us from the death of political philosophy at the hands of positivism because he didn’t resolve any of the foundational, or metaethical, concerns that bothered positivists in the first place. This line from Wilkinson’s post struck me as rather strange:

bq. And Rawls is not concerned with the veracity of the elements of moral conceptions. He is simply concerned to tease out the structure of various moral conceptions–that’s the work of “moral theory” as opposed to a comprehensive moral philosophy–and to analyze various formal properties of moral conceptions once their implicit logic is refined through a process of reflective equilabration. (italics added)

It’s the “simply” that really gets me. Even if Wilkinson’s right that this is all Rawls was doing–that is, even if his only purpose was to lay out two moral conceptions (i.e., utilitarianism and justice as fairness)–he would have succeeded in reviving political philosophy. The systematic articulation of justice as fairness alone would have been sufficient for that purpose. Of course, systematic description of moral conceptions was not Rawls’s only purpose. The point of doing systematic work in moral theory is to provide the proper materials for comparing and choosing a superior theory. And A Theory of Justice is loaded with arguments recommending one conception over another.

(This reminds me of an amusing line from the introduction of Brian Barry’s book on TJ:

bq. In the final paragraph [of TJ] (on page 587) we find Rawls still firing arguments at us in a last attempt to remove any lingering doubts we may still be harbouring. ‘Finally, we we may remind ourselves that the hypothetical nature of the original position invites the question: why should we take any interest in it, moral or otherwise? Recall the answer . . .’ and then bang, bang, bang for the last time.)

It’s hard to recognize Rawls’ constructive (and critical) ambitions in Wilkinson’s “post positivist” description of him. The argument seems to be that you can’t really be doing substantive moral or political philosophy unless you have an objective (read: correspondence theory) of moral truth to support it. Now, Rawls was explicit about his view that moral and political philosophy should proceed independently of a true account of right and wrong. He thought if we waited for someone to prove an objective theory of moral truth, we’d be waiting a really long time. Better to get on with the business of working out our moral views with the only materials presently available to us–our most confident and settled moral beliefs and our ability to work out their implications more systematically, even if that means radically revising our moral and political views. But I don’t see why this method of doing political philosophy is somehow less “substantive” than the (unstated?) methods Wilkinson and Yglesias seem to prefer. Maybe it would help to know more about what they mean by “substance” in this context, and why they think it’s important.

(iii) Stemming from discussion about the opening of this “faith-based prison”:http://www.naplesnews.com/npdn/florida/article/0,2071,NPDN_14910_2530516,00.html, there’s been an intra-blog debate of sorts about the merits of public reason over at “Punishment Theory”:http://punishmenttheory.blog-city.com/, with Kyron Huigens roughly “pro”:http://punishmenttheory.blog-city.com/read/411953.htm and Rick Garnett “against,”:http://punishmenttheory.blog-city.com/read/412996.htm and with Solum weighing in “here”:http://lsolum.blogspot.com/2003_12_01_lsolum_archive.html#107271557239274777. In what I think might be the most interesting contribution to this discussion, John Gardner “comments”:http://punishmenttheory.blog-city.com/read/412996.htm (scroll down) that:

bq. The principle of public justification central to the liberal tradition is the principle that government should not rely on reasons that it cannot or will not make public . . . If governments should not rely on reasons of respect for God, that is only because there are no such reasons. For governments, like the rest of us, should only rely on reasons that actually exist. The liberal tradition is a humanist tradition according to which there is no God and there therefore cannot be reasons for respecting Him. Anyone who acts out of a respect for God acts not for a (real) reason but only for what they mistakenly take to be a reason.

Gardner’s view is only sustainable if you date the “liberal tradition” roughly from Bentham (“On Publicity”) and J.S. Mill forward to . . . Raz? Maybe this is “Bright”:https://www.crookedtimber.org/archives/000239.html Liberalism? But it sure isn’t the liberalism that starts with seventeenth-century lessons about religious toleration–the liberalism that still thinks it’s worth reading Locke’s Letter Concerning Toleration. That liberalism, the one that inspires Rawls’ project, starts with the basic idea that governments should not only make their reasons public, but that those reasons should be acceptable to those governed by them. Arguably, the conception of public justification most central to the liberal tradition is one that requires governments to rely only on reasons that are, in principle, acceptable to their citizens. Of course, there’s a world of trouble lurking in the phrase “in principle,” but the fact that it’s troublesome doesn’t make the contractarian conception of public justification any less central to the liberal tradition.

I think a liberal conception of public justification has two aspects. First, political justifications should be made (actually) public, except where there is sufficient reason to keep certain classes of decisions secret; and, second, they should be public in the sense of being publicly acceptable. Gardner might disagree with the second part of this conception of public justification, but it is recognizably liberal and draws on a tradition of political thought going back at least as far as Locke. (“Jeremy Waldron”:http://www.amazon.com/gp/reader/0521436176/ref=sib_vae_pg_44/104-9058318-2257562?%5Fencoding=UTF8&keywords=%26quot%3Beverybody%20is%20going%20to%20want%20an%20answer%26quot%3B&p=S01N&twc=1&checkSum=OrThmC7jEfIyOzRK8lBnPLH2%2FjEdMfyJIx%2BNwMuoCWs%3D#reader-link wasn’t just making it up in his essay on the “Theoretical Foundations of Liberalism,” where he argues that the fundamental liberal thesis is that political legitimacy is “rooted” in the consent of the governed. In what sense it is “rooted” is part of the trouble. But that really isn’t the point here.) It’s one thing to disagree with this contractarian (and possibly religious) strain of liberal thought, quite another to read it out of the tradition altogether.