Rawls' Kantian Egalitarianism and Its Critics

Maria Cecilia Liotti Department of Political Science

McGill University, Montreal August 2003

A thesis submitted to McGill University in partial fulfilment of the requirements of the degree of Master of Arts

© Maria Cecilia Liotti, 2003.

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Table of Contents

Acknowledgements .............................................................................. 111

Abstract. ........................................................................................... .iv

Chapter 1: Introduction ............................................................ . ............. 1

Chapter 2: Reconciling Equalities in Rawls' Theory of Justice ... ........................ 6

1. Justice as moral reciprocity ......................................................... 6 II. The moral equality of persons and the problem of power. . . ... .. . . .. . .. .. . ... 8 III. The difference principle and the problem of arbitrary nature............... 15 IV. Equalliberties and unequal resources ............................................ 19

Chapter 3: Individual Rights, Social Goods and Moral Reciprocity ....................... 24

1. Introduction ........................................................................... 24 II. Nozick's conception ofindividual moral entitlements ........................... 25 III. Nozick's argument against Rawls' difference principle ........................ 29 IV. The state, social goods, and moral reciprocity ................................. 34

Chapter 4: Equality, Community and Diversity .......................................... .40

1. Introduction .......................................................................... 40 II. Moral agents as ends in themselves ............................................. .40 III. Liberal justice and political community ....................................... 48 IV. Moral equality and the fact ofreasonable pluralism ......................... 53 V. Conclusion .......................................................................... 59

Chapter 5: Conclusion .......................................................................... 62

Bibliography ..................................................................................... 66

11

Acknowledgements

1 give special thanks to my thesis supervisor, Prof essor Catherine Lu. 1 want her

to know how much 1 appreciate the time she spent reviewing the drafts of this work, and

how much 1 depended on her thoughtful comments. Professor Lu has been enormously

helpful to me as 1 developed my ide as, organizing and clearing up my thoughts, and

cutting off those that seemed to lead to confusion. She has also helped me to stay

focused on my thesis and gave me enough trust and encouragement to finish it.

It has also been my pleasure to work with Professor Alan Patten while he was

my advisor and teacher in the "Problems in Political Theory" and "Liberalism and

Nationalism" seminars. He has also contributed in invaluable ways in presenting to me

critically what would later be the main topics of this dissertation.

1 also owe an extraordinary understanding of the problem of equality and justice

to Professor Gerald A. Cohen. He c1arified for me what 1 believed were obscurities in

Rawls' approach and he taught me to see the distinction between Justice and the

Problem of Justice.

1 am also indebted to Rachel K. Brickner. 1 appreciate the time she spent editing

a previous version of my thesis. 1 am also grateful to Dr. Gisèle Stanislawa Szczyglak

for her assistance with the French translation of the thesis abstract.

1 also thank Susan Bartlett and Helen Wilicka for their patience and help with

the administrative aspects of the MA pro gram.

Finally, 1 want to thank my boyfriend Adrian Sidharta, who has been a great

companion to me, my family, and my friend Carolina De Lasa. They all believed 1

could do it.

A todos el/os muchas gracias.

111

Abstract

This thesis explores the role of the concept of equality in John Rawls' theory of justice.

Rawls argues that the Kantian idea of the moral equality of persons translates into a

primary principle of equal basic liberties, followed by a principle of fair equality of

opportunity that addresses the moral arbitrariness of social and natural contingencies.

Furthermore, the "difference principle" specifies that social and economic inequalities

are only justified if they benefit the worst-off group. Libertarian cri tics su ch as Robert

Nozick argue that Rawls' "difference princip le" is inconsistent with a Kantian respect

for the moral equality of pers ons as ends in themselves. Communitarians such as

Michael Sandel and Charles Taylor argue that Rawls' egalitarian commitments are not

supportable via a Kantian conception of the moral subject of justice as an autonomous

pre-social self. This thesis defends Rawls' theory of justice against these challenges.

Résumé

Cette thèse analyse le rôle du concept d'égalité dans la théorie de la justice

élaborée par John Rawls. Rawls affirme que l'idée kantienne d'égalité morale entre les

personnes peut se traduire en principe premier des libertés fondamentales égalitaires,

suivi d'une égalité des chances juste qui s'adresse à l'arbitraire moral des contingences

sociales et naturelles. En outre, le "principe de différence" précise que les inégalités

dans la distribution des biens sociaux primordiaux se justifient seulement si elles vont

au bénéfice du groupe le plus démuni. Nozick affirme que le "principe de différence"

de Rawls ne s'accorde pas avec le respect kantien pour l'égalité morale des personnes en

tant que fin en soi. Les communétariens affirment que les obligations égalitaires ne

s'accordent pas avec la conception kantienne du sujet moral de la justice an tant

qu'élément présocial autonome. Cette thèse défend la théorie rawlsienne de la justice

contre ces enjeux.

IV

Chapter 1.

Introduction

John Rawls' theory of justice has been a source of inspiration and provocation for

contemporary political theorists since the publication of A Theory of Justice in 1971. In

this thesis, 1 explore Rawls' political philosophy and present sorne of the problems,

theoretical and moral, that his position on justice and, more specifically, on equality, have

generated. 1 will delve into the philosophical foundations ofRawls' account, analyzing his

idea of justice as the primary virtue of institutions, and his defense of equality as a 'just'

value. 1 will also address and evaluate specifically criticisms made against two aspects of

his theory. Pirst, 1 will examine libertarian critiques of Rawls' emphasis on the distributive

nature of justice. Second, 1 will explore communitarian critiques of the Kantian

foundations of Rawls' theory. This thesis, then, is an examination of Rawls' Kantian

egalitarianism, and what it implies about the relationship between (1) equality and freedom,

and (2) equality and community.

Chapter 2 is devoted to an exposition of the concept and value of equality in Rawls'

the ory of justice. The main focus is on the ideals of the moral equality of persons - enacted

through the original position - and substantive equality - enacted through the difference

principle. The challenging questions are how they are related and reconciled in Rawls'

theory.

Rawls adopts a Kantian commitment to the freedom and equality of persons, but

wants to save the priority of the right from Kant's idealist metaphysic. To achieve this, he

uses the social contract device to formuhlte princip les to guide the basic institutions of a

society that could be chosen by rational and morally reasonable people under conditions

that ensure impartiality. Rawls' hypothetical social contract construction, "the original

1

position," asks what self-interested people would agree to as the standard for evaluation of

the basic structure of society, if they knew nothing about where their position in the social

order. Rawls conc1udes that they would give priority to protecting themselves against the

worst possibilities, and that this would result in the choice of his two principles of justice

rather than a utilitarian standard that would maximize average expectations, perhaps at the

cost of allowing a bigger spread from the least fortunate to the most fortunate.

Rawls' position is understandable if we take into account that each person's

prospects and opportunities in life are strongly influenced by the position into which she is

bom through no choice of her own: by her place in a political, social, and economic

structure defined by the basic institutions of her society. Rawls believes that deep

inequalities built into a social and economic structure that is sustained by the power of the

state present the greatest potential for unfaimess. While people retain sorne control over

their lives through the choices that they make against the background of this structure, the

influence of the structure itself is Rawls' main moral concem. Since the design of basic

. institutions of society are under human control, we should question whether the conditions

for life-goveming good and bad fortune that our institutions create are morally acceptable.

Rawls' challenge is that a legitimate social order must recognize the moral equality

of persons, and this in tum leads to a requirement that structural inequalities in the basic

social and political institutions of society are morally justified, or consistent with the

principle of the moral equality of persons. This is evident in Rawls' defense of the two

principles of justice. Rawls insists on "freedom as equal liberty" or the "complete system

of the liberties of equal citizenship" to safeguard institutional respect for the moral equality

of persons. This is the first and most fundamental sense of equality in his account of social

justice. The second princip le is concemed with effecting the distribution of basic social

2

goods as fairly as possible. A fair distribution, according to Rawls, reqU1res that

socioeconomic inequalities are acceptable only if they cannot be eliminated without making

the worst-off class even worse off. Rawls also contends that the principle which secures

opportunities and powers, income and wealth, must be subordinated to the primary good of

guaranteeing a scheme of equal basic liberties.

Rawls' theory of justice has generated great controversy and debate in moral and

political theory.

Chapter 3 is devoted to Robert Nozick's fierce critique of Rawls' conception of a

just or "well-ordered" society. In his Anarchy, State and Utopia, Nozick advances a view

of justice that gives ultimate priority to individual rights to life, liberty and property. The

curious thing is that both Nozick and Rawls find in Kant the moral foundations of their

disparate accounts of justice. However, for Nozick, the idea of the moral equality of

persons as ends in themselves translates into near absolute individual rights that express the

inviolability of persons and reflect the fact of our separate existences. Such rights convey

individuals' entitlements to a protected sphere concerning their life, liberty and property,

with which no one may interfere without consent.

Nozick's critique of Rawls focuses on the Difference Principle that specifies the

conditions of justified inequality in the distribution of primary social goods. Nozick argues

that the right to liberty has got to involve the right to retain any property acquired through

legitimate means. This means that any end-state or "patterned" theory of social justice like

Rawls' is unjust because it requires the coerced re-distribution of goods, which violates

individuals' entitlements to own the property they have legitimately acquired through their

own efforts. According to Nozick, then, the problem with Rawls' theory of justice is that

the Liberty Principle is at odds with the Difference Principle: the Difference Principle

3

requires the very kinds of re-distribution the Liberty Principle disallows. Does Nozick

make a mistake about what is morally necessary to ensure the moral equality of persons

understood as ends in themselves? Or do es Rawls? What kind of moral reciprocity can

Nozick's theory support, and does it do justice to the Kantian view of free and equal

persons? Is it the case that respecting the liberty of individuals necessarily conflicts with

egalitarian princip les of social justice?

In addition to the controversy about the relationship between liberty and equality

generated by libertarian critics of Rawls, a great deal of the critical response to Rawls'

work focuses on the relationship between community and equality. Chapter 4 examines

this latter theme through a critical assessment of communitarian challenges to Rawls'

theory of justice. Communitarians argue that Rawls' attempt to formulate an impartialist

universalistic morality is wrongheaded, and they wonder how principles of justice derived

from an original position founded on a Kantian notion of the moral equality of pers ons can

help us to contextualize the pursuit of egalitarian justice in actually existing societies.

According to communitarians, Rawlsian liberalism presupposes an impoverished vision of

the individual self, and may lead to impoverished conceptions ofpolitical community.

Michael Sandel and Charles Taylor object to the conception of the self underlying

Rawlsian liberalism, arguing it is unrealistic and morally undesirable. Sandel, for example,

argues that a Kantian subject that is prior to its ends misses the fact that most individuals'

identities are deeply constituted by their social ends and attachments. Taylor argues that

the idea of an autonomous moral agent can only be maintained and achieved in a certain

type of culture with certain facets and activities which are carried on in institutions and

associations which require stability and continuity and also support from society as a

whole.

4

Rawls' conception of individuals as free and equalleads him to make a distinction

between political values and more comprehensive values. He believes that justice requires

faimess not only in the distribution of material and social advantages, but also toward

different conceptions of the good. The sense of justice should lead us not to want to impose

our own conception of the human good on others against their will, even if we have the

political power to do it. Instead, we should want to base the justification of state coercion

on a narrower set of purely political values, leaving the comprehensive values of religion

and ultimate ends to voluntary communal and personal pursuit. Rawls' liberalism requires

a strong commitment to the controversial claim that certain political values of freedom and

equality take precedence over divergent conceptions of the human good, and that these

conceptions should not be allowed to overthrow the political fundamentals.

This liberal position, according to which certain principles of right are priar to the

good, has provoked the communitarian objection, according to which only a shared

conception of the human good canjustify a social arder. Communitarians thus fear that the

kind of moral reciprocity based on faimess that Rawls proposes is not an adequate basis for

social cohesion or justice. In sorne ways, communitarians, like libertarians, are arguing that

Rawls' Liberty Principle conflicts with the Difference Principle, since they argue that

individuals cannot be free in the way that Rawls presupposes and still have a commitment

to an egalitarian principle of social justice such as the Difference Principle.

At the root of both libertarian and communitarian critiques of Rawls is a dispute

about the concept of equality. What conceptions of equality flow from the idea of the

moral equality of persons, and how are these conceptions of equality to be reconciled in a

the ory of justice? These are the questions at the heart of this thesis.

5

Chapter 2.

Reconciling equalities in Rawls' Theory of Justice

I. Justice as moral reciprocity

Every functioning society is a cooperative enterprise involving the joint efforts of

individual members. There are, however, diverse ways of grounding social cooperation,

from threats of terror and coercion, to appeals to love and loyalty, to arguments of justice.

According to John Rawls, "everyone's well-being depends upon a scheme of cooperation

without which no one could have a satisfactory life.") What kinds of terms for social

cooperation are morally supportable for human beings? Rawls argues that the moral

legitirnacy of any scheme of social cooperation depends on the strength of its claims to

justice.

A Rawlsian conception of a just or "well-ordered" society is defined by a kind of

moral reciprocity between members, who understand society not only as a joint venture for

mutual advantage, but also as a type of moral association that is founded on a respect for its

members' capacity for moral personality. For Rawls, "a society is well-ordered when it is

not only designed to advance the good of its members but when it is also effectively

regulated by a public conception of justice ... [so that] (1) everyone accepts and knows that

the others accept the sarne principles of justice, and (2) the basic social institutions

generally satisfy and are generally known to satisfy these principles.,,2 This description of

a well-ordered society is Rawls' first mention of the idea of justice as moral reciprocity.

) John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1999 [revised ed.]), pp. 13-14.

2 Ibid., pp. 4-5.

6

For persons endowed with a capacity for moral personality, and hence, with a sense

of justice, principles of social justice are required to choose between various social

arrangements that determine the division of advantages and to come to an agreement on

proper distributive shares. A public conception of justice constitutes the fundamental

charter or framework that regulates the play of competing values and ends. Rawls argues

that, "Those who hold difJerent conceptions of justice can ... still agree that institutions are

just when no arbitrary distinctions are made between persons in the assigning of basic

rights and duties and when the rules de termine a proper balance between competing c1aims

to the advantages of social life." The principles of justice apply to "the basic structure of

society, or more exactly, the way in which the major social institutions distribute

fundamental rights and duties and determine the division of advantages from social

cooperation," where major institutions inc1ude "the political constitution and the principal

economic and social arrangements.,,3 Persons are to enjoy first and foremost equal basic

liberties in a Rawlsian vision of the just society, and although inequalities in social and

economic circumstances are permitted, they must bene fit the least advantaged members of

society.

The principle of equal liberty assumes a prior position over the second "difference

principle" because certain basic liberties are necessary for the exercise of moral personality.

The second principle of justice is justified on the basis of the former although the difference

principle is thought to mitigate the arbitrariness of the external world. In this way no

matter how or where an individual is socially situated, that pers on enjoys the moral

3 Ibid., pp. 5 and 7. Emphasis mine.

7

reciprocity of fellow citizens in a well-ordered society. The idea of moral reciprocity is

thus integral to Rawls' theory of justice.

II. The moral equality of persons and the problem of power

The basis of moral reciprocity is idea of the moral equality of persons, and the basis

of that concept of equality is the "features of human beings in virtue of which they are to be

treated in accordance with the principles of justice.,,4 These features constitute the essential

elements of moral personality, which are identified by considering what human capacities

are required for the selection of and compliance with what Rawls calls "fair terms of social

cooperation."s These capacities are two moral powers which render persons "capable of

being normal and fully cooperating members of society over a complete life.,,6 For Rawls

"a Kantian doctrine joins the content of justice with a certain conception of the person; and

this conception regards persons as both free and equal, as capable of acting both reasonably

and rationally, and therefore as capable of taking part in social cooperation among persons

so conceived.,,7

To derive the main principles of justice, Rawls "generalizes and carries to a higher

level of abstraction the familiar theory of the social contract."g The guiding idea of the

"original position" is that the principles of justice for the basic structure of society are the

4 Ibid. p.441.

5 John Rawls, "The Basic Liberties and their Priority," in The Tanner Lectures in Human Values III, Sterling M. McMurrin, ed. (Cambridge, UK: Cambridge University Press, 1982), p.14.

6 Ibid., pp. 14-15.

7 John Rawls, "Kantian Constructivism in Moral Theory: The Dewey Lectures 1980," The Journal of Philosophy 78 (1980), p. 518.

g Rawls, A Theory of Justice, p.lO.

8

object of an original agreement between free and equal persons. Rawls constructs the

original position around recognition of the moral equality of persons, in virtue of their two

moral powers (a capacity for a sense of justice and for a conception of the good) and the

powers of reason (of judgment, thought, and inference) connected with these powers.

"While the procedural interpretation of this contractual process emphasizes the deliberative

basis for the principles of justice selected, the Kantian version of the contract portrays the

outcome of the deliberations as an expression of the moral personalities of the participants,"

it has been argued by Jeffrey Pau1.9

Rawls does not think of the original position as an actual device through which to

set up a particular society or form of government. Rather, Rawls uses the contract as a

theoretical device with which test our moral intuitions: the original position has legitimacy,

fundamentally, because it reflects the ideal of the moral equality of persons, i.e., the idea

that the moral personality of each person is to be respected. The contract in question models

the idea that no pers on is inherently bound to others. 10

Rawls asserts that persons conceived with moral personality would agree to choose

as the first principle of justice, the following: "each person has an equal right to the mos!

extensive scheme of equal basic liberties compatible with a similar scheme of liberties for

9 Jeffrey Paul, "Rawls on Liberty", in Conceptions of Liberty in Political Philosophy, ed. Zbigniew Pelczynski and John Gray (London: The Athlone Press, 1984), p. 379. Rawls says that he "does not mean that his conception is literally Kant's conGeption, but rather that it is one of no doubt several conceptions sufficiently similar to essential parts of his doctrine to make the adjective appropriate." See Rawls, "A Kantian Conception of Equality" in his Col!ected Papers, ed. Samuel Freeman (Harvard University Press, Cambridge, 1999), p. 264.

10 "The original position of equality corresponds to the state of nature in the traditional theory of social contract." Rawls, A Theory of Justice, p.ll.

9

all.,,11 The basic liberties (freedom of thought, liberty of conscience, and so on) are the

background institution al conditions necessary for the development and the full and

informed exercise of the two moral powers. These liberties are also indispensable for the

protection of a wide range of determinate conceptions of the good (within the limits of

justice ).12 The basic liberties to which Rawls accords this priority comprise a family, and it

is this family, or scheme, of liberties which is to be equally distributed among citizens

rather that the individual liberties. 13 The respective liberties must be grouped so as to

provide the most adequate family (scheme) of rights for the exercise of the two moral

powers. 14

II Ibid., p. 53.

12 "The basic liberties are given by a list of su ch liberties. Important among these are political liberty (the right to vote and hold public office) and freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person, which includes freedom from psychological oppression and physical assault and dismemberment (integrity of the person); the right to hold personal property and freedom from arbitrary arrest and seizure as defined by the concept of the mIe of law. These liberties are to be equal by the first principle." Rawls, A Theory of Justice, p. 53.

13 For an earlier articulation of the principles of justice, see Rawls, "Constitutional Liberty and the Concept of Justice (1963)" in Collected Papers, p. 75.

14 The Priority of Liberty Defined in A Theory of Justice, p. 214-220. Aiso the enunciation of the priority mie: "The principles of justice are to be ranked in lexical order and therefore liberty can be restricted only for the sake ofliberty. There are two cases: (a) a less extensive liberty must strengthen the total system of liberty shared by aIl, and (b) a less than equal liberty must be acceptable to those citizens with the lesser liberty." (p.220) Rawls also says that "These liberties have a central range of application within which they can be limited and compromised only when they conflict with other liberties. Since they may be limited when they clash with one another, none of these liberties is absolute; but however they are adjusted to form one system, this system is to be the same for all. It is difficult, and perhaps impossible, to give a complete specification of these liberties independently from the particular circumstances - social, economic, and technological - of a given society. The hypothesis is that the general form of such a list could be devised with sufficient exactness to sustain this conception of justice. Liberties not on the list, for example, the right to own certain kinds of property (e.g. means of production) and freedom of contract as understood

10

The first principle of justice seems to be logically derived from the presumption that

the parties in the original position are unaware of the information related to their own

conceptions of the good. Due to the "veil of ignorance," the parties in the original position

can have no knowledge of the specific final ends sought by those whom they represent. 15

What they do understand is the general structure that anyone's rational plan for life must

have, as weB as the generic character of the conceptual elements - religious, philosophical,

or moral - in terms of which such a plan is interpreted and grasped. If we inquire how the

parties are to provide conditions for those whom they represent which will enable them

effectively to conceive of and revise their final ends, we can appreciate their selection of

the basic liberties. The lack of knowledge of their specific conceptions of the good makes

them concemed about their own liberties. In a broad sense they would be interested in

ensuring that whatever conception of the good they embrace, it will not be discriminated

against by the basic structure of society. Given the absence of this particular information

about themselves, the parties in the original position will not select a principle that is

specifically contrived to bene fit or burden one segment of the population based on any

particular conception of the goOd. 16

by the doctrine of laissez-faire are not basic; and so they are not protected by the priority of the first principle." (p. 54)

15 To wit, "No one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural as sets and abilities, his intelligence, strength, and the like. ( ... ) the parties do not know their conceptions of the good or their special psychological propensities." Rawls, A Theory of Justice, p. 11.

16 The considerations leading the parties to conclude such an agreement where the princip les secure the basic liberties and assign them priority are ones pertaining "to the development and the full and informed exercise of the two moral powers, each giving rise to considerations of a distinct kind; and finally considerations relating to a person's determinate conception of the good." See RawIs, "The Basic Liberties and Their Priority," p.24.

Il

Moreover, Rawls argues, the adoption and revision of such beliefs would not be

relinquished in exchange for wealth or power by moral persons and, consequently, the

liberty to engage in su ch reflection would not be subordinated to sorne other primary good

by their representatives. Thus, we see that the capacity for a conception of the good

provides grounds for the adoption of principles which guarantee the basic liberties. The

grounds are related to this capacity's dual role as both a means to and a part of one's

determinate conception of the good. As a means to one's final aims, this power supplies the

capacity to assess and, ifnecessary, modify one's goals. Consequently, it requires liberty of

conscience for its development and exercise, as weIl as liberty of association, which is an

expression of liberty of conscience. As an intrinsic part of one's final aims, this capacity

endows one's conception of the good with its justificatory basis. But justification

necessitates that we be permitted "to faU into error and to make mistakes within the limits

established by the basic liberties. In order to guarantee the possibility of this conception of

the good, the parties as our representatives adopt principles which protect liberty of

conscience.,,17

Finally, there are considerations which are related to the human moral capacity for a

sense of justice which move the representatives to select the basic liberties in the original

position. Now this moral power, as it appears in the original position, refers to the capacity

to be moved by the terms of social cooperation once these have been adopted. Since no

such terms have been selected antecedent to the original position, the sense of justice

possessed by the parties in it does not answer to any determinate set of social principles.

Nevertheless, the capacity to develop such a particularized sense subsequently does provide

17 Ibid., p. 29.

12

the representatives in the original position with grounds for adopting principles which

secure the basic liberties and assign them priority. Then, as Paul underlines, "the basic

liberties ... are chosen by the parties and accorded a superior place among the principles of

justice because they are required to advance any conception of the good and are necessary

for the exercise of the two moral powers which any such conception presupposes.,,18

In viewing persons as self-generating sources of ends and purposes, Rawlsian

liberalism denies that what makes a society just is the telos, or purpose or end, toward

which it aims; its acknowledgement of persons as independent centers of purpose and

agency requires social institutions to refrain from imposing on its members comprehensive

shared purposes and ends. In a just society individu aIs are free to pursue their own self-

chosen values and ends, consistent with a similar liberty for others. The priority of the right

over the good means that basic individual rights cannot be sacrificed for the sake of general

utility and that the principles of justice that specify these rights cannot be premised on any

particular vision of the good life. 19

Other theories of justice, and for that matter, ethics, have typically founded their

c1aims on sorne conception of the good. Aristotle, for example, said the measure of a polis

is the good at which it aims, and even John Stuart Mill, who in the nineteenth century

called "justice the chief part, and incomparably the most binding part ofall morality," made

18 Paul, Op. Cit., p. 385.

19 However, there is a shi ft in Rawls' later work. In Political Liberalism, for example, Rawls elaborates a political conception of justice, arguing that it must have the kind of context associated with liberalism historically (it must affirm certain basic rights and liberties, assign them a certain priority and so on), but within which the right and the good are complementary. See John Rawls, Political Liberalism (New York: Columbia University Press, 1993). For Rawls now, "a political conception must draw upon various ideas of the good." See John Rawls, "The Priority of Right and Ideas of the Good" [1988] in Collected Papers (Cambridge, MA: Harvard University Press, 1999), p. 451.

13

justice an instrument of utilitarian ends.20 Recognizing the moral equality of persons

involves acknowledging the distinctness of each pers on as a moral agent, and thus requires

a repudiation ofutilitarian morality:

It has seemed to many philosophers, and it appears to be supported by the

convictions of common sense, that we distinguish as a matter of principle

between daims of liberty and right on the one hand and the desirability of

increasing aggregate social welfare on the other; and that we give certain

priority, if not absolute weight, to the former. Each member of society is thought

to have an inviolability founded on justice or, as sorne say, on natural right,

which even the welfare of every one else cannot override. Justice denies that loss

of freedom for sorne is made right by a greater good shared by others. The

reasoning which balances the gains and losses of different persons as if they were

one person is excluded. Therefore in a just society the basic liberties are taken for

granted and the rights secured by justice are not subject to political bargaining or

to the calculus of social interest.21

Rawlsian liberalism asserts the priority of right and seeks principles of justice that do not

presuppose any particular conception of the good. This is what Kant means by the

supremacy of the morallaw, and what Rawls means when he writes that "justice is the tirst

virtue of social institutions.,,22 Justice is not merely one good among a plurality of goods;

20 See Aristotle, The PoUties, trans. Cames Lord (Chicago: University of Chicago Press, 1984); John Stuart Mill, Utilitarianism [1893] in The Utilitarians (Garden City: Doubleday, 1973), p. 465; and Mill, On Liberty [1849]), in The Utilitarians, p. 485.

21 Rawls, A Theory of Justice, p. 24-26.

22 Ibid., p. 3.

14

rather, it provides a framework of princip les that regulates the pursuit of competing goods

and ends between free and equal persons.

In summary, Rawls insists on "freedom as equalliberty" or the "complete system of

the liberties of equal citizenship,,23 to safeguard institutional respect for the moral equality

of persons. This is the first and most fundamental sense of equality in Rawls' account of

social justice.

III. The difference principle and the problem of arbitrary nature

The moral equality of persons is the moral pillar of A Theory of Justice. The first

principle of justice is founded on the moral significance of mutual recognition of this

equality. It requires that the basic structure of society respects the moral personality of

every pers on. The second principle is concerned with effecting the distribution of basic

social goods as fairly as possible. In the original position, while the first principle of justice

derives from the fact that the parties do not know their detenninate conception of the good,

the difference princip le derives from the parties' lack of knowledge of the natural and

social contingencies of the individuals they represent.

The original position incorporates pure procedural justice in that any outcome of

participants' deliberations de fines the princip les of justice, the fairness of these principles

being the direct result of the faimess of the procedure. There are no antecedent principles to

23 For the most part Rawls discusses liberty in connection with constitutional and legal restrictions. In these cases liberty is a certain structure of institutions, a certain system of public mIes defining rights and duties. See Rawls, Theory of Justice, p. 176-180. AIso, "The fact that the two principles apply to institutions has certain consequences. First of aIl, the rights and basic liberties referred to by these principles are those which are defined by the public rules of the basic structure. Whether men are free is detennined by the rights and duties established by the major institutions of society. Liberty is a certain pattern of social forms. The first principle simply requires that certain sorts of rules, those defining basic liberties, apply to everyone equally and that they allow the most extensive liberty compatible with a like liberty for aIl." (p. 55-56)

15

which the parties are bound prior to their deliberations. However, Rawls assumes aIl along

that the parties know that they are subject to the conditions ofhuman life. As Rawls states,

Being in the circumstances of justice, [the parties] are situated in the world with

other men who likewise face limitations of moderate scarcity and competing

claims. Human freedom is to be regulated by principles chosen in the light of

these natural restrictions. Thus justice as fairness is a theory of human justice and

among its premises are the elementary facts about persons and their place in

nature.24

The circumstances of justice show that the condition of the external world is neither one of

dire scarcity nor one of lavish abundance. While the circumstances of justice generate the

problem of justice, Rawls appeal to a Kantian view of persons to construct the solution to

that problem.25

According to the difference princip le, social and economlC inequalities are

permitted so long as these maximize an index of primary goods enjoyed by the least

advantaged members of society: "Social and economic inequalities are to meet two

conditions: they must be (a) to the greatest expected benefit of the least advantaged; and

(b) attached to offices and positions open to al! under conditions of fair opportunity. ,,26

The outcome of the original position is that people will agree to avail themselves of the

advantages of nature and social circumstance only when doing so is for the common

24 Ibid., p.226.

25 1 owe this clarification to Prof. Gerald Cohen: "It is not Justice to be 'ultimately based on the circumstances of justice,' but the Problem of Justice. Not the solution, but the problem." Quoted from a letter ofreply from Cohen that 1 received in June 2002.

26 Rawls, Theory of Justice, p. 53.

16

benefit. The two principles of justice are a fair way of meeting the arbitrariness of fortune,

and while no doubt imperfect in other ways, the institutions which satisfy these princip les

are just.

The difference principle entails a transcendence of the ordinary idea of distributive

justice in modem societies. According to the conventional idea, what everyone gets is just

if the benefits and positions in question are accessible to everybody. But given that no one

deserves her natural talents and abilities, these and their products are arbitrarily distributed

from a moral point of view, thus justice cannot be realized through a conventional view of

equality of opportunity.27 Rawls points out that differences in families typically lead to

une quaI prospects between individuals: to realize equality of opportunity implies realizing

equal starting points, but this could lead to great social disruption, since it could imply the

need to abolish sources of social inequality such as the family. Such an attempt at radical

social change is likely to be unstable and inefficient.

Instead Rawls proposes that people be encouraged to develop their natural talents

and fortunes, but within a context of a theory of justice that requires the benefits to be

distributed in su ch a way that the worst-off in society benefit from this development. In

Rawls' words,

The acknowledgement of the difference principle redefines the grounds for social

inequalities as conceived in the system of liberal equality ... We are more ready to

dwell upon our good fortune now that these differences are made to work to our

advantage, rather than to be downcast by how much better off we might have been

27 "Equality of opportunity means an equal chance to leave the less fortunate behind in the personal quest for influence and position." Ibid. p. 91.

17

had we had an equal chance along with others if only aIl social barriers had been

removed.28

Rawls thus asserts that the advantages of those who benefit more from the natural (and

arbitrary) distribution of as sets are justified only ifthey are part of a structure that improves

the expectations of the least advantaged of society:

... society must take organizational requirements and economlC efficiency into

account. So it is unreasonable to stop at equal division. The basic structure should

allow inequalities so long as these improve everyone's situation, including that of

the least advantaged, provided these inequalities are consistent with equal liberty

and fair opportunity. Because we start from equal shares, those who benefit least

have, so to speak, a veto; and thus we arrive at the difference principle. Taking

equality as the basis of comparison those who have gained more must do so on

terms that are justifiable to those who have gained least.29

The ideal of the moral equality of persons thus involves protection not only from the

arbitrary exercise of power by other persons, but also from inequalities in social and

political advantage generated by "accidents of natural endowment and the contingencies of

social circumstance." The principles of justice thus "express the result of leaving aside

those aspects of the social world that seem arbitrary from a moral point of view". 30 Once

again, the idea of moral reciprocity is a key justificatory concept, as Rawls argues that "it

28 Ibid., pp. 447-448.

29 Rawls, "A Kantian Conception of Justice", p. 262. The point here is that sorne measure of agreement in conceptions of justice is not the only prerequisite for a viable human community. There are other fundamental social problems, in particular those of coordination, efficiency, and stability.

30 Rawls, A Theory of Justice, p. 13-14.

18

must be reasonable for each relevant representative man defined by this structure, when he

views it as a going concern, to prefer his prospects with the inequality to his prospects

without it.,,31 The moral equality of persons grounds the idea of justice as moral

reciprocity, that entails a guarantee of equal basic liberties, as weIl as justifies restrictions

on substantive social and economic inequalities.

IV. Equalliberties and unequal resources: questions of relationship and priority

In a society characterized by a fair system of social cooperation, the principles of

justice need to offer a rational and reasonable justification for social cooperation to the

least-advantaged of society.32 No one can lead a satisfactory life without a scheme of social

cooperation, and justice requires that "the division of advantages should be such as to draw

forth the willing cooperation of everyone taking part in it, including those less weIl

situated.,,33 Rawls contends that the princip le which secures opportunities and powers,

income and wealth, must be subordinated to the principle that guarantees a scheme of equal

basic liberties. Thus, in the original position, equality is firstly conceived as equalliberty of

31 Ibid., p. 56. Rawls advocates a democratic interpretation of the second principle of justice. (pp. 57-73)

32 It is important to take into account that in the original position the selection of the difference principle leads to a rule for choice under uncertainty, a heuristic device for arranging arguments for principles of justice. The maximin rule of choice under uncertainty states that, "The two principles are those a person would choose for the design of a society in which his enemy is to assign him his place. The maximin rule tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative the worst outcome of which is superior to the worst outcomes of the others .... Clearly the maximin rule is not, in general, a suitable guide for choices under uncertainty. But it holds only in situations marked by certain special features ... a good case can be made for the two principles based on the fact that the original position has these features to a very high degree." Rawls, A Theory of Justice, p. 132-133.

33 Rawls, A Theory of Justice, p. 13-14.

19

persons in the first princip le of justice, that is lexically prior to equality in terms of

distribution of basic goods as stated in the second principle.

The difference principle, in allowing for social and economic inequalities, however,

may undermine the equality of the basic liberties of the first principle. For while aIl are

equally free to exercise a set of liberties equally distributed, aIl are not similarly

empowered to make use of comparable advantages, i.e. primary goods, in the exercise of

those liberties. Each may be equally free to speak her mind, but the materially advantaged

may purchase greater influence for their ideas than the disadvantaged. While citizens are

equally free from certain constraints, they are not equally able, due to inequalities in wealth

and power, to exploit that freedom. Put another way, the equal negative freedom guaranteed

by the first principle of justice is juxtaposed to the unequal positive freedoms sanctioned by

the second, and the inequality of the latter, it has been argued by one critic, undermines the

equality of the former.34

Rawls does not conceive ofthis problem as an incompatibility between negative and

positive liberty.35 Nevertheless, he does address it in other terms. He insists that it is

inappropriate to assert that equality of liberty is compromised by differences in economic

wealth and power. These differences, Rawls argues, produce inequalities in the value or

worth of liberty to various individuals, while leaving intact the equality of liberty itself.

Whatever inequalities are permitted by the difference principle will constitute no restriction

or diminution of liberty overall, for the equalliberties of the less fortunate or successful are,

34 Norman Daniels, "Equal Liberty and Unequal Worth of Liberty" in Reading Rawls. ed. Norman Daniels, (Basic Books, New York, 1975), pp. 256 and 257.

35 Rawls says that, "The controversy between the proponents of negative and positive liberty as to how freedom should be defined is one 1 shall leave aside." See Rawls, A Theory of Justice, p. 176.

20

on this account, simply of less value to them but are equalliberties none the less.36 Rawls

de fines negative liberty as the freedom to do certain things unrestricted by a variety of

potential constraints. Freedom of speech, for example, is enjoyed equally by aIl when they

are equally free from a similar range of restrictions, such as legal prohibitions. However,

Rawls concedes that the value ofthis liberty to the wealthy will be greater than to the poor.

But Rawls introduces two considerations which, he believes, mitigate these differences in

the value of persons' liberties.

Firstly, he argues that any economic inequalities that prevail in a society are

minimized by the difference principle, which therefore maximizes the value of liberty to the

least advantaged. According to Rawls,

The lesser worth of liberty is, however, compensated for, since the capacity of the

less fortunate members of society to achieve their ai ms would be even less were

they not to accept the existing inequalities whenever the difference principle is

satisfied. But compensating for the lesser worth of freedom is not to be confused

with making good an unequal liberty. Taking the two princip les together, the basic

structure is to be arranged to maximize the worth to the least advantaged of the

complete scheme of equal liberty shared by aIl. This defines the end of social

justice. 37

Paul has a very interesting view on this point. He argues "that any attempt to increase the

worth of liberty to the least advantaged beyond that allowed by the difference principle

36 According to Amy Gutmann, Rawls offers "a liberalism for the least advantaged, a liberalism that pays moral tribute to the socialist critique." See Gutmann, 'The Central Role ofRawls' Theory', Dissent (Surnrner 1989), p. 339.

37 Rawls, A Theory of Justice, p. 179.

21

would fail. It would be irrational to strive for such an increase, for it would require that we

ignore the inefficiencies that would result from departures from the arrangements which

instantiate the difference principle. Besides, if inequalities in wealth were to be limited

beyond what is required by the difference principle, sorne further principle would have to

be introduced". 38

In addition to these maxlmlzmg effects of the difference principle, Rawls

emphasizes another way of mitigating the consequences of the unequal worth of the basic

liberties. He insists on the worth of the political liberties to aIl citizens and their fair value.

For Rawls "aIl citizens are to have an equal access, at least in the formaI sense, to public

office.,,39 What is more, Rawls argues that the effects of inequalities in the value of other

basic liberties can be reduced by including in the tirst principle of justice the requirement

that the political liberties be secured only by their fair value. Rawls makes the distinction

between the idea of a Welfare State and a Property-owning Democracy. The former may

allow large and inheritable inequalities of wealth incompatible with the fair value of

politicalliberties, as weIl as large disparities of income that violate the difference principle.

With the concept of property-owning democracy the aim is to carry out the idea of society

as a fair system of cooperation between free and equal persons. Thus, basic institutions

must from the outset put in the hands of citizens generally, and not only of a few, the

productive means to be fully cooperating members of society. The emphasis falls on the

steady dispersal over time of the ownership of capital and resources by the laws of

inheritance and bequest, on fair equality of opportunity secured by provisions for education

38 Paul, Op. Cit., p. 387.

39 Rawls, A Theory of Justice, p. 196.

22

and training, and the like, as weIl as on institutions that support the fair value of the

political liberties.40 Rawls believes that by assuring roughly equivalent political power to

citizens, equitable social background arrangements and a fair public policy are more likely

to be maintained.

Rawls' theory of justice aims to reconcile in a systematic way two conceptions of

equality: the moral equality of persons arising from their capacity of moral personality and

irrespective of their social position, and equality in the distribution of primary social goods

such as income and wealth. As Rawls puts it,

The priority of the first principle over the second enables us to avoid balancing these

conceptions of equality in an ad hoc manner, while the argument from the

standpoint of the original position shows how this precedence cornes about.41

The moral equality of persons is fundamental: the first principle involves the natural dut y

of mutual respect, and "it is owed to human beings as moral persons." The second

principle "regulates the structure of organizations and distributive shares so that social

cooperation is both efficient and fair," or protected as much as possible from morally

arbitrary natural and social contingencies. Rawls' principles of justice thus define fair

social cooperation as a kind of moral reciprocity between free and equal persons.

40 See Rawls' revised first edition of A Theory of Justice, specifically the "Preface for the French Edition of A Theory of Justice" (1987) in Collected Papers, p. 415-420.

41 Rawls, A Theory of Justice, p. 447.

23

Chapter3.

Individual Rights, Social Goods and Moral Reciprocity

1. Introduction

Both Robert Nozick and John Rawls appeal to a Kantian notion of the moral equality of

persons in their theories of justice. Nozick, however, is a fierce critic ofRawls' conception

of a well-ordered society. Their conflict reveals disparate understandings of the concept of

equality, leading to different accounts of justice as moral reciprocity.

Nozick argues from a natural rights tradition that views persons as morally entitled to

life, liberty and property. However, there is not only a Lockean foundation for Nozick's

theory, but a Kantian one as weIl. Nozick interprets the "Kantian princip le that individuals

are ends and not merely means" to mean that each of us is the rightful owner of our own

body, and that our body rights are absolute.1 We have separate existences. For Nozick, it is

wrong to sacrifice one person for the sake of another, since that would be treating the

sacrificed person as a means for another's end. Our only morally enforceable obligations

are based on our individual rights to life, liberty and property. The point is that these rights

can never be overridden without justification, and only certain kinds of justification will do.

Politically, Nozick's assertion of the primacy ofindividual rights leads to ajustification

for "a minimal state, limited to the narrow functions of protection against force, theft, fraud,

enforcement of contracts, and so on," but "any more extensive state will violate persons'

rights no to be forced to do certain thingS.,,2 The minimal state exists simply to enforce

natural rights and administer justice by means of the police and the courts. Few actual

1 Robert Nozick, Anarchy, State and Utopia (Basic Books, New York, 1974), pp. 30-31.

2 Ibid., p. ix.

24

states resemble Nozick's ideal: most liberal states have programs for the alleviation of

poverty that are partIy fmanced by taxation of the better off. According to Nozick, this

taxation goes beyond the legitimate functions of the state, for in re-distributing property

through taxation, the state is not protecting, but violating, the pre-political rights of

individuals.

This is where Nozick's critique of Rawls enters the debate. Rawls' theory of justice

proposes to address the problem of the distribution of primary social goods in a system of

social cooperation that produces such social goods. Nozick questions what is meant by

"social goods." Talk of distributive justice seems to presuppose a social entity that produces

social goods that are then to be allocated by that social entity to individuals in society. This

argument contradicts Nozick's entitlement theory that presupposes that whatever goods are

produced in society are produced by individuals with individual entitlements to property.

Does a Kantian view of individuals as ends in themselves necessarily militate against a

distributive principle like Rawls' difference princip le? Whose conception of justice better

serves the idea of the moral equality of persons?

II. Nozick's conception of individual moral entitlements

Nozick opens Anarchy, State, and Utopia by stating that, "Individuals have rights ...

so strong and far-reaching that they raise the question of what, if anything, the state and its

officiaIs may dO.,,3 Nozick's political philosophy, like Rawls', is strongly anti-utilitarian

and deontological. Nozick, like Rawls, accords high moral significance to certain

individual rights; both therefore reject the moral permissibility of violating such rights in

favour of the welfare of others, an authorized possibility in utilitarian morality. Both, in this

3 Ibid., p. ix.

25

sense, share a common antecedent in the Kantian commitment to the moral equality of

persons, wherein individuals are taken as ends in themselves, but they interpret the

implications of such a princip le for political morality quite differently.

Nozick fo11ows Locke in assuming that people have natural rights or moral pre­

political rights, that ought to inform the scope and content of legal and political rights, or

those rights established by convention. A natural right exists independently of human

action. Indeed part of the point of claiming that hum ans have natural rights is to provide a

standpoint from which one is able to criticize human laws and conventions.

Nozick argues that a11 individuals have rights to life and liberty, and can also form

equally strong rights to property. He defends the thesis of self-ownership: each ofus is the

rightful owner of our own body; and our body rights are absolute. Self-ownership has

consequences for liberty in the sense that things which are done to me without my consent

are illegitimate, since they violate my right to own myself. Nozick's distinctiveness from

other philosophers of rights is the emphasis he puts upon rights of self-ownership.

Individual moral entitlements in the form ofrights have primacy in Nozick's moral theory.

Rights are absolute and override aIl considerations of need or welfare or happiness.

Individual rights, for Nozick, fi11 the whole moral landscape; it is by virtue of these rights

that "aggression," both against the person and against the person's property, is morally

prohibited. Taking individual rights seriously leads to the legitimacy of moral side

constraints on the exercise of those rights. In this sense rights can never clash with each

other. This means we should not adopt any course of action that violates someone's rights.

FinaIly, his theory of rights leads us to the idea that our only enforceable moral obligations

are based on rights.

26

Rights may not be overridden for the sake of public welfare. It is in this sense that

Nozick understands the Kantian princip le of persons as ends in themselves. For Nozick,

this interpretation of the conception of moral persons as ends in themselves - in the context

of natural rights - leads to a conception of morality that supports a strictly limited set of

near absolute individual rights. Such rights for him "express the inviolability of persons"

and "reflect the fact of our separate existences.,,4 These rights include each individual's

right not to be killed or assaulted, so long as she does not violate the same rights of others;

the right to freedom from all forms of coercion or limitation of freedom; and the right to

own property that has been legitimately acquired without it being seized or its use limited.

Individuals also have the secondary right to punish and exact compensation for violation of

their primary rights, and to defend themselves and others against such violations. Finally,

they have the positive right to acquire property by making or finding things and by transfer

or inheritance from others, and they have the right to make such transfers and binding

contracts.5

The aim of Nozick's libertarian philosophy is to maximize for individuals their

sphere ofliberty: "One is assigned a protected sphere ofrights to one's body and property

so that one may do what one likes with them, free from interference, provided one respects

the similar rights to others. Thus rights to self-ownership and rights to property might be

seen as maximizing individual secure liberty.,,6 AIso, they might be seen as providing the

basis of political morality. The legitimacy of "social institutions" derives from their

4 Ibid., pp. 32 and 33.

5 Ibid., pp. 10,89 and 139.

6 Jonathan Wolff, Robert Noziek, Property, Justice and the Minimal State (Stanford University Press, 1991), p. 97.

27

adherence to individual rights. Any scheme of institutions that does not respect individual

rights so conceived is immoral and illegitimate.

The morallandscape which he presents contains only individual rights and is empty

of everything e1se except possibly the moral permissibility of avoiding what he terms

catastrophe.7 The basic rights which comprise the moral landscape and express the

inviolability of persons are few in number but are all equally stringent. Moral wrongdoing

has only one form: the violation ofthese rights. So long as rights are not violated (and short

of catastrophe), how a social system actually works, how individuals fare under it, what

needs it fails to meet, and what misery or inequalities it produces, are not issues of

morality. The only legitimate state is one to which individu ais have transferred their

(secondary) rights to punish others for rights violations or exact compensation from them,

and the state may not go beyond the night-watchman functions of using the transferred

rights to protect persons against force, fraud, and theft or breaches of contract.

Nozick' libertarian conception of rights reveals what he understands by the moral

equality of persons. Two conclusions can be drawn. First, the moral equality of persons, for

Nozick, translates into an equal claim of individuals against each other not to be interfered

with in specified ways. Nozick's account is founded on the basic premise that each

individual has proprietorship over herself, or rather is the legitimate owner of her body.

Each person has an equal entitlement to freedom from external interference, and an

entitlement to property acquired through voluntary transactions, whatever the distributive

outcome. Such rights express the moral equality of persons as self-directed and self-

possessing beings, and protect them from being harmed and exploited by others.

7 H.L.A. Hart, "Between Utility and Rights" in The Idea of Freedom, Alan Ryan ed. (Oxford University Press, Oxford, 1979), pp. 77-98.

28

Second, Nozick's conception of individual moral entitlements, especially to private

property, exists prior to the construction of civil society or a basic structure of society

regulated by principles of justice. In this sense, the issue of distributive justice seems to be

settled before the circumstances of justice arise. Nozick thus equates the moral equality of

persons in a pre-political state of nature with the moral equality of persons in a political

community, without taking into account the effects of social and natural contingencies on

persons' claims to moral equality within society.

III. Nozick's argument against Rawls' difference principle

Nozick advances an entitlement theory of justice based on the prirnacy of rights

thesis. This directly opposes Rawls' theory of justice as fairness. 8 For Rawls, persons are

to enjoy fIfst and foremost equal basic liberties, and although inequalities in social and

economic circumstances are permitted, they must benefit the least advantaged members of

society. Rawls principles of justice are founded on the moral significance of mutual

recognition of the moral equality of persons. Thus, the principles of justice require that the

basic structure of society respects the moral personality of persons, which includes

addressing discrepancies in their social fortunes caused by social and natural contingencies

that are arbitrary from a moral point ofview.

Any distributive princip le of justice is, according to Nozick, problematic on the

basis that it will infringe on sorne people's rights to self-ownership. It is the

characterization of natural rights as absolute that explains Nozick's attack on distributive

8 Nozick, Op. Cit., p. xi.

29

justice.9 In short, he argues that a redistributive principle like Rawls' difference princip le

entails imposing immoral restrictions on individual freedom, violating the idea of persons

as ends in themselves.

Nozick argues that justice in property entitlements can only obtain from what he

calls "voluntary individual transactions." This is because entitlements to property or

resources are derived from individual rights to own their own bodies. Since such rights-

bearing individuals are ends in themselves, justice in the distribution of resources can only

be determined in three ways: by the original "acquisition of holdings", the appropriation of

unheld things; the "transfer of holdings" from one person to another; and the "rectification

of injustice in holdings". A principle of "justice in acquisition" tells us how things can

change status from being unowned to being owned, and a princip le of "justice in transfer"

explains how goods, aIready justly owned, can be transferred to others. Again it is clear that

the essential core of Nozick' s principle of justice in transfer is that a transfer is just if and

only if it is voluntary. However, given that the world is not wholly just, and people

sometimes acquire goods by force or fraud, a princip le of "justice in rectification" is also

needed, to repair the effects of past injustices. So the essence of Nozick's position is that

the justice of one's holding of a particular item of property depends entirely on how it came

into one's possession. 10

9 It is important to note that "treating rights as negative, construing them as providing side constraints, and as being exhaustive - trumping all other moral considerations - allows Nozick to insist that rights have a secure, absolute character." Wolff, Op. Cit, p.23.

10 At this point, Nozick introduces a particular interpretation of the Lockean proviso: no one should suffer as a result of another's appropriation. That is, the Nozickean proviso has the simple normative consequence that appropriation is illegitimate if it worsens another' s situation, aIl things considered. On Locke's proviso and its protection of an unlimited natural right to property with the introduction of money, see C. B. Macpherson, Po/itical

30

According to Nozick, by defmition "an end-state princip le or distributional

patterned princip le of justice" and notably "any distributional pattern with any egalitarian

component" will be "overturnable by the voluntary actions of individual persons over time"

- such as when they exchange goods and services with other people, or give things to other

people. If freedom means non-interference with voluntary actions of this sort, then it

certainly follows that, under realistic assumptions, "liberty upsets patterns," including

egalitarian patterns. Il But Nozick goes further, for he also claims that what makes an

action non-voluntary (and thus presumably unfree) depends on whether the actions of other

people that limit one's available opportunities are actions they had the right to perform.

Since in Nozick's theory people have no moral right to implement restrictions on individual

liberty to achieve an egalitarian distribution, it foIIows that an egalitarian policy, must by

defmition, violate liberty and constitute injustice. As he argues, "The system of

entitlements is defensible when constituted by the individual aims of individual

transactions. No overarching aim is needed, no distributional pattern is required.,,12 Thus

for Nozick any patterned, end-result or end-state princip le of distribution, such as Rawls'

difference principle, violates individual rights to self-ownership because it does not respect

people's voluntary contractual obligations. Any imposition of end-result princip les violates

Theory of Possessive Individualism, (Clarendon Press, Oxford, 1962), Ch. V, sect.2, pp.197ff. Nozick does not say much about the two stages in which the state of nature is divided, before and after the introduction of money.

Il Nozick, Op. Cit., pp. 160-4.

12 Ibid., p. 158.

31

individuaI rights; and astate that enforces such princip les goes beyond the moraIly

permissible bounds of state action. 13

With these arguments, two questions need to be explored. First, does Nozick

correctly interpret Rawls' difference princip le as an end-state principle that seeks a

pattemed distribution? Second, what is the relationship between distributive justice and the

Kantian conception of free and equal persons?

Rawls' approach to justice is based on the idea that humans have moral capacities

for a sense of the good and of justice. The basic liberties protected by the frrst princip le of

justice are indispensable for the protection of a Kantian conception of persons as being free

and equal in their moral capacities. These are persons with a wide range of determinate

conceptions of the good and of justice. Rawls' theory of justice aims to develop social

institutions that give the greatest respect to the idea of persons as self-directed beings,

capable offashioning and choosing their own plans oflife.

Rawls' endorsement of individual rights, however, is contextualized in a wider

structure of social justice. The princip les of justice are construed on the idea of our shared

moral capacities, and not on the emphasis of self-ownership rights. That is why, frrst,

principles of justice have to be founded on the moral significance of mutual recognition of

this equality; and second, they require that the basic structure of society respects the moral

personality of every person. Under this interpretation the ideal of the moral equality of

persons involves protection not only from the arbitrary exercise of power by other persons,

but aIso from inequalities in social and political advantage generated by "accidents of

13 Nozick's notorious "Wilt Chamberlain" example generalizes the point to demonstrate that liberty - freedom of transfer - rules out not only equaIity but aH pattemed and end­state theories.

32

natural endowment and the contingencies of social circumstance." Thus, Rawls' idea of

social justice is not satisfied with respect for individuals' natural rights and liberties. It aiso

takes into account the social context in which individuals must cooperate if they are to

realize any of their own ends, and justifies the advantages of those best awarded by the

natural lottery if and only if they are part of a system that improves the expectations of

those least advantaged members of society.

The difference princip le is thus derived from a commitment to the idea of persons as

self-directing beings, and not from sorne concern for a particular vision of an egalitarian

society. Nozick is wrong then to characterize the difference princip le as outcome-driven.

The problem that arises here is a misconception of Rawls' deontological argument. Rawls

does not posit an overall good end-state in society; his main concern is to understand how

rational and reasonable people reach fair terms of social cooperation. Cooperation, thus, is

understood on the basis of the mutual recognition our moral personalities. In justice as

faÏrness there is always a social shared responsibility of equity in the distribution of primary

social goods because of the moral equality of persons with whom we are engaged in a

cooperative enterprise.

While Nozick's theory of justice struggles for the priority of individual's pre­

political moral entitlements, especially to private property, aIl claims of entitlement to

resources are, for Rawls, relative to a structure of social justice. Nothing is "absolutely

mine" but only "mine given the principles of justice" that are formed within a socially

cooperative system. From a Rawlsian point ofview, the error ofNozick's libertarianism is

that it bases individuals' moral entitlements to property and resource shares within society

on their moral entitlements before social cooperation. But this move fails to take into

33

account the social obligations individuals can legitimately expect others to perform when

they are involved in a system of social cooperation for mutual advantage.

These obligations, such as those arising from the difference principle, are relevant

only when the cooperating individuals are conceived in a Kantian sense as free and equal

persons. Rawls' argument is that it would be morally unreasonable and irrational for

individuals so conceived to agree to social cooperation on other terms. In this sense, his

account of the difference princip le is not coercive in the way that Nozick contends.

IV. The state, social goods, and moral reciprocity

Nozick's conception of moral reciprocity is severely restricted by his sense of

individual entitlements to self-ownership, and is summed up by the principle that

individuals must not interfere with the voluntary transactions of others. According to

Nozick, provided self-ownership rights are not violated, no injustice is committed.

Nozick's radical commitment to individual rights so conceived, however, does not

make him an anarchist. Against anarchy, Nozick argues, "A state would arise from anarchy

(as represented in Locke's state of nature) even though no one intended this or tried to bring

it about, by a pro cess which need not violate anyone's rightS.,,14 The minimal state is the

14 Nozick, Op. Cit, p. xi. "Individuals in Locke's state of nature are in a "state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave or dependency upon the will of any other man" (sect. 4). The bounds of the law of nature require that "no one ought to harm another in his life, health, liberty, or possessions" (sect. 6). Sorne persons transgress these bounds, "invading others' rights and ... doing hurt to one another," and in response people may defend themselves or others against such invaders of rights (chap. 3). The injured party and his agents may recover from the offender "so much as may make satisfaction for the harm he has suffered" (sect. 10); "everyone has a right to punish the transgressors ofthat law to such a degree as may hinder its violation" (sect. 7); each person may, and may only "retribute to [a criminal] so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint" (sect. 8)." (p.lO.)

34

institution that protects individuals' natural rights to life, liberty and property. It is minimal

only because the rights protected are minimal. If there were an individual moral right to be

supported in a condition equal in welfare to everyone else's, no matter what one's talents

and efforts, then there would be a more-than-minimal state, i.e., astate committed to

effecting a goal of substantive equality, and not just to the maintenance of a system of

relationships govemed by equal individual rights to life, liberty and property.

The minimal state should protect us against physical violence; it should be an

institutionalized guarantee against illegitimate force and fraud. For Nozick the only

legitimate state is one to which individuals have transferred their rights to punish or exact

compensation from others for violations of their rights, and such astate may not go beyond

the night-watchman functions of using the transferred rights to protect persons against

force, fraud, and theft or breaches of contract. 15

For Locke civil society arises when those who feel the inconveniences of the state of nature enter into a social compact to establish a minimal state with a legislator, judge, or magistrate. Nozick, however, suggests that before following Locke into civil society we should see whether there is any way to remedy these inconveniences without establishing a state, within the state of nature. Nozick explains how, by the process of an invisible hand, mutual protection associations, comparable to Locke's 'civil society' but not identical with it, become a de facto dominant protection agency. This is a spontaneous process that does not involve, according to Nozick, the violation of people's rights. However, to get from a de facto dominant protection agency to a minimal state without violating any rights, Nozick postulates a princip le of compensation. This means that people can be compensated by the minimal state for forfeiting their natural right to self-protection to the minimal state.

15 Wolff emphasizes "it is against the background of a theory of distributive justice, and in particular of private property rights, that the argument for the state takes place. For example, we saw that one of the problems exercising Nozick is that, if astate protects all, sorne people must be made to pay for the protection services supplied to those who cannot afford them. Nozick had to find a justification for this which did not Ïnfringe natural rights to property. For Nozick these natural private property rights, therefore, are more fundamental than the state, and would exist, he would daim, whether or not the state is justified." See Wolff, p. 74.

35

Nozick understands freedom negatively: a person should be left to do or be what she

is able to do or be without interference by other persons. Nozick thus fmds a conflict

between the pursuit of social equality and the guarantee of individual freedom. But even if

the foundation for such rights is the respect for the separateness of persons, why should

rights be limited as they are, to abstention from such things as murder, assault, theft and

breach of contracts?16 Why not contemplate the fact that persons exist not only if their

rights are respected, but within a social framework? Why not consider that we need a

certain level of social respect or recognition without which our self-respect as self-directed

beings is undermined? Or as a critic questions,

Why should there not be included a basic right to the positive service of the relief of

great needs or suffering or the provision of basic education and skills when the cost

of these is small compared with both the need to be met and with the fmancial

resources ofthose taxed to provide them? Why should property rights, to be morally

legitimate, have ab solute, permanent, exclusive, inheritable and unmodifiable

character which leaves no room for thiS?17

It is here where Nozick's conception of society and of moral reciprocity gets extremely

thin. For Nozick moral obligations based on positive marshalling of social and economic

resources violates individuals' self-ownership rights, and makes them means to a social end

of supporting the least weIl-off in society.

Nozick ultimately challenges Rawls' idea of society as a scheme of social

cooperation according to which society must be tied by a sense of moral reciprocity

16 Hart, "Between Utility and Rights," p. 85.

17 Ibid., p. 85.

36

inspired on the moral equality of persons. For Nozick an interpretation of society such as

Rawls' does not respect the idea that "there is no moral outweighing of one of our lives by

the others so as to lead to a greater overall social good. There is no justified sacrifice of

sorne ofus for others.,,18 It is in this sense that he maintains that " ... there is no social entity

with a good that undergoes sorne sacrifice for its own good".19 But Rawls' description of an

egalitarian society is not utilitarian, as discussed; rather it is based on the Kantian premise

of the moral equality of persons.

Nozick's contention is that moral reciprocity consists of mutual respect for each

other' s natural rights, and justice is done as long as these rights of individuals are protected.

For Rawls, however, while no individual is entitled to the social products of his own

efforts, the princip les of justice as faimess ensure that the terms of cooperation between

individuals are based on a recognition of the moral equality of persons. His egalitarian

conception of justice is grounded on the idea that free and equal individuals cooperate

because they conceive of themselves as ends; and in order for the system to make moral

sense, persons must sees themselves in a reciprocal relationship of mutual recognition when

enacting principles of social cooperation.

If the justification of a libertarian view of individual rights is the idea of persons as

ends in themselves, one might question whether a society based on Nozick's views would

actually guarantee for individuals lives that are autonomous or self-directed. Perhaps in

such a society many people will have to endure unrelieved poverty. Sorne may even starve,

and other lead meniallives; and there is no moral wrongdoing ifthe state or other people do

18 Nozick, Op. Cit., p. 33. Again, this argument seems to echo Rawls' arguments against utilitarianism.

19 Ibid., p.32.

37

not interfere in their lives. What is more, as in the Hobbesian idea of mutual self-

preservation,20 in Nozick's account, it is ultimately my interest that counts. Here, morality

is seen as self-interest. This is a radical way of presenting the question, but what if it is not

in my self-interest that the least advantaged people of society survive? Under Nozick's

view, it would not be morally wrong not to have a contractual relation of assistance with

these people. It is hard to see how such a society wou Id be able to pay proper respect to the

idea of the moral equality of persons.

ln an ironic way, because individuals' rights to property are so absolute for Nozick,

society has no intrinsic moral value and becomes merely instrumental, and in sorne ways,

other people also bec orne merely instrumental. As Charles Taylor has argued, "the

atlachment to a theory which asserts the primacy of rights, like Nozick's, "den[ies] the

same status to a principle of belonging or obligation, that is a principle which states our

obligation as men to belong to or sustain society, or a society of certain type, or to obey

authority or an authority of a certain type ... Rather our obligation to helong to or sustain a

society, or to ohey to its authorities, is seen as derivative, as laid on us conditionally,

through our consent, or through its being to our advantage. The obligation to belong is

derived in certain conditions from the more fundamental princip le which ascribes rightS.,,21

Nozick's view of justice as the non-violation of self-ownership rights of individuals

leads to a very weak sense of moral reciprocity that undermines the social bases of self-

20 It is important to note that for Hobbes our atlachment to life is our desire to go on heing agents of desire. 1 am not sure, though, if Nozick based his philosophical approach on this idea of agents of desire. 1 think Nozick has more in mind the Lockean idea that we need the right to property as an essential underpinning oflife and liberty.

21 Charles Taylor, "Atomism", in his Philosophical Papers 2 (Cambridge University Press, Cambridge, 1985), p. 188. (Emphasis mine). Taylor also notes that "The paradigm of primacy-of-rights theories is plainly that of Locke."

38

respect. This is because his account of a just society could leave individuals in situations of

material deprivation that would necessarily undermine the sense that they had any value in

society at aIl. In allowing for this kind of separateness of individuals in society, Nozick's

self-possessing individuals are not only self-directed but also plainly selfish. Not oruy

would they not endorse a difference princip le, but it is hard to see why individuals so

conceived would ever voluntarily be charitable towards unfortunate members in society.

Rawls' theory of justice highlights the extent to which a just society that aims to

respect individuals as morally equal self-directed beings is bound by a notion of moral

reciprocity that is reflected in social institutions that guarantee the material and social bases

of self-respect. Rawls' theory of justice does not require people to have charitable attitudes

towards fellow citizens; instead his account of society as a system of social cooperation, of

social goods produced by that cooperation, and of the social bases of individual welfare,

make it clear that an equitable principle to regulate the distribution of primary social goods

is a matter of justice, rather than charity.

39

Chapter4.

Equality, Community, and Diversity

J. Introduction

While Nozick considers Rawls to have too thick a conception of moral reciprocity

in his theory of justice, communitarians such as Michael Sandel and Charles Taylor argue

that Rawls' conception of moral reciprocity is too thin for a viable or desirable political

community. At issue here is a perceived conflict between Rawls' Kantian conception of

persons as ends in themselves, evident in the original position, and his commitment to an

egalitarian redistributive princip le in his theory of justice. We are led in this discussion to

explore the connections between the moral equality of persons, the value of community,

and the fact of diversity.

II. Moral agents as ends in themselves

Rawls gives priority to the basic liberal freedoms based on a Kantian conception of

the person. Individuals who are subjects of justice possess moral powers of shaping,

pursuing, and revising (if need be) their own life-plans; a social structure that seeks to

support individuals so conceived must encourage respect for the exercise of these powers of

self-determination.1 Everybody has a "highest-order interest,,2 in making use of her or his

powers, thus liberal civil and political freedoms have value because they enable individuals

to exercise their powers of self-determination, and not because they maximize utility.

1 John Rawls, "Kantian constructivism in Moral Theory: The Dewey Lectures 1980", The JournalofPhilosophy, 78 (1980), pp.515-72.

2 Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1999 [revised ed.]), p. 131-132.

40

Not surprisingly, as Rawls himself acknowledged, such a conception of the person

is bound to generate controversy:

When fully articulated, any conception of justice expresses a conception of the

person, of the relations between persons, and of the general structure and ends of

social cooperation. To accept the principles that represent a conception of justice is

at the same time to accept an ideal of the person; and in acting from these princip les

we realize such an ideal. 3

Communitarians typically argue that the conception of the self underlying Rawlsian

liberalism is unrealistic as a description of individu al selves, and morally undesirable even

if practicable.4 The pre-social conception of the individual self as an autonomous rational

chooser is evident in Rawls' construction of the original position. Critics argue that such a

self is "overly individualistic" in that it fails to recognize individuals "as members of this

family or community or nation or people, as bearers of this history, as sons or daughters of

that revolution, as citizens ofthis republic."s As Daniel Bell has put in describing this line

of criticism, the liberal conception of a rational and choosing self that is divorceable from

social atlachments is difficult to sustain in reality, since more often than not, individuals'

senses of themselves, even as moral agents, "are involuntarily picked up during the course

3 John Rawls, "A Kantian Conception ofEquality" (1975), in Col/ected Pa pers, ed. Samuel Freeman (Harvard University Press, Cambridge, 1999), p. 254-255.

4 For a complete discussion of Raw1s' Kantianism in the context of the communitarian critique, see Daniel Bell, Communitarianism and Its Critics, Clarendon Press, Oxford, 1996.

S Michael Sandel, "The Procedural Republic and the Unencumbered Self', Po/itical Theory, 12, 1984, pp. 81-96.

41

of our upbringing, rational choice having played no role whatsoever.,,6 Furthermore, the

liberal conception of the self supports an impartialist universalistic morality that is

"insufficiently sensitive to the importance of community or social context;" thus liberal

theories, unrooted in particular moral traditions, will not likely have much "practical

force.,,7 Finally, the atomistic liberal self, ifpracticable, would be detrimental to individu al

well-being.8

Let us analyze sorne more specifie arguments. Michael Sandel's version of this

critique is aimed at what he has called the "unencumbered self." He reads Rawls as

arguing that human beings "are not simply defmed as the sum of our desires, as utilitarians

assume, nor are we beings whose perfection consists in realizing certain purposes or ends

given by nature, as Aristotle held. Rather, we are free and independent selves, capable of

choosing our ends for ourselves. ,,9 This idea, according to Sandel, is a poor descriptive

vision of the human being. 10 Adopting such a conception of the self misses a more

6 Bell, Communitarianism and Its Critics, p. 4. The point is that an awareness of the unchosen nature of most of our attachments undermines those justifications for a liberal form of social organization founded on the value of reflective choice. This last issue relies on the critique to the very dichotomy between choice and coercion that liberals seem to defend.

7 Ibid., p. 6.

8 Ibid., p. 7.

9 This is Sandel's reading of the Rawlsian subject. See Michael Sandel (1982), Liberalism and the Limits of Justice, Cambridge University Press, Second Edition; and Sandel, 1982.

10 In short, communitarians note that "the problem is that to imagine individuals as socially disembodied beings is so far removed from people's intuitions that liberal theory can never get off the ground. Whether or not Rawls successfully derives his two prlnciples of justice, actual individuals would only endorse the se if they fit with their intuitions". Bell, Communitarianism and Its Critics, p.30.

42

complete understanding of the person, one that recognizes the importance that knowledge

ofthe values of one's community has for everyone - values persons do not choose, but fmd

out, that persons identify by 100 king behind the practices of the groups to which they

belong. 11 Sandel thus objects to the idea, rooted in Kantian philosophy, that "the subject is

prior to its ends" .12 This view of the subject "rules out the possibility of what we might caU

constitutive ends. No role or commitment could defme me so completely that 1 could not

understand myself without it. No project could be so essential that tuming away from it

wou Id caU into question the person 1 am.,,13 Sandel asserts that certain commitments

become constitutive of individuals' identities. 14 The self underlying Rawlsian liberalism is

therefore an impoverished subject that maintains autonomy at the expense of meaning.

This objection is also present in the idea that liberalism assumes a peculiar

ontological position that has been characterized as "atomist". "Atomism" is a term used by

Charles Taylor to describe those "contractarian" doctrines that arose in the seventeenth

II Before we go on, we should note that we are moving on to an ontological question, as Bell argues: "a question conceming what factors you will invoke to account for social life. The communitarian idea is that 'society' is ultimate in the order of explanation -whether we like it or not, whether we know it or not, we're deeply bound up in the social world in which we happen to find ourselves." Ibid., p. 31.

12 Sandel, "The Procedural Republic," p.85.

13 Ibid., p. 86.

14 ln other words, we could say that "constitutive communities pro vide a largely background way of meaningful thinking, acting, and judging, a way of being in the world which is much deeper and more many-sided than any possible articulation of it." Bell, Communitarianism and Its Critics, p. 95. Emphasis mine. That argument, quite simply, is the congruence of the communitarian ideal with a deeper understanding of ourselves and our aspirations. Bell's argues that "if you ask yourself what matters most in your life, 1 think that the answer will invoke a commitment to the good of the communities out of which your identity has been constituted, a need to experience your life as bound up with that ofwhat we can caU "constitutive communities". p .94.

43

century and also the successor doctrines that embrace a vision of society as an aggregation

of individuals guided by independent individual aims. As Taylor says, they entail "a vision

of society as in sorne sense constituted by individuals for the fulfillment of ends which are

primarily individual."15 Ontological atomism typically leads to po litic al theories that

favour individual rights at the expense of social purposes and ends. Taylor argues that this

is problematic because individuals are not self-sufficient, but develop self-realization only

within a social context. The communitarian subject is deeply marked by belonging to a

particular community and its practices. Our identity is defmed from our social situation, or

our relations and commitments to the community with which we identify. Individuals are

not beings capable of living in a vacuum because they need a social and cultural

environment. For Taylor the starting point of atomists

is a kind of blindness, a delusion of self-sufficiency which prevents them from

seeing that the free individual, the bearer of rights, can only assume this identity

thanks to his relationship to a developed liberal civilization; that there is an

absurdity in placing this subject in a state of nature where he could never attain this

identity and hence never create by contract a society which respects it. Rather, the

free individual who affmns himself as such already has an obligation to complete,

restore, or sustain the society within which this identity is possible. 16

15 Charles Taylor (1985), "Atomism" in Philosophy and the Human Sciences, Philosophical Papers 2, Cambridge University Press p. 187.

16 Ibid., p. 209. At this point we should remember that for Rawls ''the original position of equality corresponds to the state of nature in the traditional theory of the social contract." (Rawls Op.Cit., p.ll) But isn't this critique more applicable to Nozick than to Rawls?

44

Taylor supports the idea of the self as auto no mous and self-determining, but insists on the

idea that identity defmed as such requires a specific social matrix, "one for instance which

through a series of practices recognizes the right to autonomous decision and which calls

for the individual having a voice in deliberation about public action.,,17

Taylor thus defends a "situated" idea of liberty that takes into account our being a part of

shared social practices, and which is against a "vacuous" idea of freedom that presupposes

a vacuous conception of individuals. 18

The critique of Rawls focuses on his formulation of the original position in A

Theory of Justice. In the original position, rational agents, acting on behalf of real persons,

are to agree once and for al! to a set of princip les of justice to go vern the basic structure of

their future society. Theses contracting agents are placed behind a "veil of ignorance" to

capture the equality of moral persons (rational beings with their own ends and capable of a

sense of justice). So the contractors are deprived of information about their full conception

of the good life. The ide a that princip les of justice should be the product of an imaginary

prior agreement, by persons deprived of knowledge of their actual social position, is a

pro minent part of Rawls' theory. Finally, but not least, the original position was the

appropriate status quo that ensured that the fundamental agreements reached in were fair.

That fact, according to Rawls, yielded the term ''justice as fairness". The original position

of equality corresponded to the state of nature in the traditional theory of social contract,

and the princip les of justice that would regulate further agreements were the object of that

original agreement.

17 Taylor, "Atomism", p. 209.

18 Charles Taylor, Sources of the Self, Cambridge, Cambridge University Press, 1990.

45

In his later work, Political Liberalism, "the original position is simply a device of

representation.,,19 This means that it is a kind of thought experiment we might be able to

agree on and through which we can reach an agreement. The original position no longer

gives a portrait of the self, but gives a model of settling disagreement under the standards of

objectivity, impartiality, etc. As Rawls says "the idea is to use the original position to

model both freedom and equality and restrictions on reasons in such a way that it becomes

perfectly evident which agreement would be made by the parties as citizens'

representatives.,,20 Rawls thus makes clear in his later work that the original position is not

a mechanism to portray the individual self.

Will Kymlicka introduces to the debate a very sound argument against this criticism

when he argues that the assumption of a pre-social self as a descriptive reality of

individuals does not "enter anywhere in the theories of Mill or Rawls or Dworkin, and it is

remarkable how often this accepted wisdom gets passed on without the least bit of textual

support.,,21 Catherine Lu also questions the communitarian depiction of the liberal self:

Both Sandel and Taylor challenge the validity of a conception of the human subject

as an abstract entity capable of being divorced :from all social relationships. Indeed,

it would be absurd to deny that we are aH bom into families, communities and

states, and cannot be identified without sorne reference to these particularities. The

19 John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 25.

20 Ibid., p.26.

21 Will Kymlicka , Liberalism, Community and Culture, Clarendon Paperbacks, 1991, pp.13-14.

46

liberal conception of the self, however, does not deny the se facts, but takes a

different view of their relevance to the consideration of persons as moral subjects. 22

Even more problematic than the communitarian charge that Rawlsian liberalism

requires a pre-social self, is the argument that Rawls has no conception of community. Is it

really truth that Rawls denies "that there exists any social entity above or beyond the

individuals who comprise it,,?23 This critique seems more applicable to someone like

Nozick and libertarian philosophy than Rawls and liberalism. Rawls seeks to construct

principles of social order that respect the idea of persons as "centers of consciousness,

purpose and agency.,,24 He does not assume that such persons are socially dissociated, or

that society does not exist; indeed his princip les of justice are needed as guarantees for

individuals to exercise their agency as moral beings (with moral powers) within a social

context. Rawls recognizes the dependency of individuals on the social context of rules and

institutions for leading autonomous lives. His princip les of justice inform basic social

institutions to ensure the moral equality of persons in their pursuits of their own

conceptions of the good, and in the competition for social goods and advantage.

Individuals would not need the se princip les if it were assumed that they lived in a social

vacuum. Thus Rawls' theory of justice actually presupposes rather than denies community

or a social context in which individuals are embedded.

22 Catherine Lu, "Images of Justice: Justice as a Bond, a Boundary and a Balance" in The Journal of Political Philosophy: Volume 6, Number 1, 1998, pp.I-26 at p. 7.

23 Sandel, Liberalism and the Limits of Justice, p. 67

24 Lu, "Images of Justice," p. 7.

47

III. Liberal justice and political community

While Sandel thinks the abstract individualistic premlses of liberalism are

unrealistic, he also argues that the ethic of rights-based liberal justice produces persons

incapable of forming constitutive attachments. Independent from concrete social aims and

ties, the liberal self is "wholly without character, without moral depth," and is denied

"those qualities of character, reflectiveness, and friendship that depend on the possibility of

constitutive projects and attachments. ,,25 The particularistic appeal of community underlies

Sandel's critique of liberal justice. For Sandel, my loyalties to my family, community,

nation or people, which define who l am, "go beyond the obligations l voluntarily incur and

the 'natural duties' l owe to human beings as such. ,,26 These special relationships ground

our moral and social obligations, and it would be destructive of moral order to abstract

ourselves from all the particularities of social relationship in terms of which we have been

accustomed to understand our moral responsibilities and interests. Politically, Sandel

argues that the liberal elevation of individual rights as the primary foundation of justice

leads to impoverished conceptions of political community. For example, the liberal

commitment to respect persons as ends in themselves with the capacity and right to choose

their ends (which are individually defmed) translates into the idea of astate that must be

neutral to competing conceptions of the good27 Sandel sees liberal justice as a divis ive

25 Sandel, "The procedural republic," pp.79-80.

26 Ibid., p.90.

27 Kymlicka, Liberalism, Community and Culture, p. 36. According to Kymlicka two very different concems underlie Rawls' contrast ofthe relative priority of the right and the good. "The fust is that each person' s good should be given equal weight, which utilitarianism fails to do adequately. The second is that people's legitimate entitlements shouldn't be tied to any particular conception of the good life." Unfortunately, according to Kymlicka,

48

value that undervalues communal goods and ends, and undermines the development of

community.

Communitarians thus challenge the assertion that justice as liberals conceive it is

essential or conducive for social unity and stability. The liberal conception of justice holds

that individual negative freedoms are crucial to a well-ordered society. Communitarians

argue that freedom lies elsewhere: not in the recognition of individual rights but in the

commitments of collective self-rule that involve individuals having a sense of communal

identification and a sense of collective or shared values, ends and goals. For

communitarians a bondage construed on the social shared meanings bearing on communal

practices is a necessary condition of mutual respect and recognition. Rights-based liberal

justice is antagonistic towards the development of political community bonded by shared

understandings and values.

"neither issue concems the priority of the right or the good. Kymlicka maintains this view on the assumption that the argument between utilitarianism and Rawls' conception of justice is not over whether people have distinct c1aims, but over haw we give equal weight ta each persan 's daim in farmulating princip les afjustice." Thus, for Kymlicka, ifthis is the argument then it has nothing to do with the priority of the right or the good. (Emphasis mine) However, Samuel Freeman argues that Kymlicka, not Rawls, is culpable of a "serious confusion". Freeman says "[Kymlicka] confuses deontology -a daim about the content of princip les of right - with the princip les that are invoked in justifYing and applying the content of a moral view. Moreover, he confuses deontology with a related idea, the priority of the right. The priority of the right has received a great deal of attention from Rawls' communitarian critics. This is surprising in view of the fact that Rawls has so little to say about it in A Theary af Justice. What accounts for this attention, 1 suspect, is Michael Sandel's misreading. He identifies the priority of the right with deontology, and says both mean that Rawls' arguments for justice as faÎmess relies on no account of the human good or our interests. Kymlicka rightly argues that Rawls does not seek "to derive princip les of justice without any idea of people's essential interests". But he persists in identifYing deontology and the priority of right... The priority of the right is a different notion, one that is central to Rawls' liberalism and the Kantian structure of his deontological view." Samuel Freeman, "Utilitarianism, deontology, and the priority of right", Philasaphy and Public Affairs; Princeton; Fall 1994, p. 315.

49

Without such shared understandings and goals, Sandel maintains that social

cooperation is not easily sustainable. An example of this, according to Sandel, is Rawls'

attempt to formulate an egalitarian redistributive princip le in a liberal theoretical context.

Rawls wants to go beyond the traditional liberal preoccupation with civil and political

rights, arguing that liberal justice also requires principles for the fair distribution of social

goods and resources. In short, the equality of persons as moral agents with capacities to

choose their own ends translates into equal individual rights not only to civil and political

freedoms that individuals need to form, pursue, and revise their own conceptions of the

good, but also to an equal share of social and economic resources needed for that same

purpose, unless inequalities in these resources benefit the least fortunate. Sandel argues

that such a principle is unsustainable in a liberal society that is not bound by a stronger

sense of community and social solidarity. Communitarians push us toward the issue of

whether the kind of egalitarian redistribution outlined in A Theory of Justice "can be just

forged around a common understanding that makes justice the principal virtue of social

life," or whether "sorne other good should have to figure as weIl in the definition of

community life. ,,28

Is Rawls' conception of justice so thin that it must fail to justify collective goods

and ends such as an egalitarian society? It is true that Rawls argues that "the most stable

conception of justice .. .is presumably one that is perspicuous to our reason", and that it

should be "congruent with our good, and rooted not in abnegation but in affirmation of the

28 Charles Taylor is here restating Sandel's critique. Charles Taylor, "Cross-purposes: the liberal-communitarian debate," Liberalism and the Moral Life, ed. Nancy L. Rosenblum (Cambridge, Mass.: Harvard University Press, 1989), p. 166.

50

self. ,,29 Thus the princip les of justice guarantee everyone equalliberties and assure that our

identity as self-determining persons will be respected. In sorne sense, then, justice fi

princip le is realized with the emancipation from communal attachments and ends.

Yet Rawls talk:s about the resulting attachments of justice as moral reciprocity.30

For Rawls, persons acquire a common conception of justice and societies enjoy the ties of

civic friendship when they are founded on a scheme of moral reciprocity that is designed to

ensure the social bases of self-respect. It is this scheme that justifies Rawls' conception of

faÏrness in the distribution of the benefits and burdens of social cooperation.

Rawls thus does not deny the importance of the kind of ethics communitarians

defend, but he argues that social arrangements justified on the basis of the ties of friendly

feeling and trust toward others in the association in which people comply with their duties

and obligations, is just a step in the development of morality. In the communitarian

description of justice, moral attachments seem to be solely connected with the well-being

and approval of particular individuals and groups or society, as a whole. We need to

identify the variety ofpoints ofview, that the perspectives of the others are not the same as

ours; and finally, having understood another's' situation, it remains for us to regulate our

own conduct in the appropriate way by reference to it. This requires individuals to view

issues from the moral standards appropriate to the their specific role in the association to

which they belong; and to shape their moral decisions according to their communal context.

29 Rawls, A Theory of Justice, p. 436.

30 Rawls says "... we acquire attachments to persons and institutions according to how we perceive our good to be affected by them. The basic idea is one ofreciprocity, a tendency to answer in kind." Ibid., p.433.

51

Rawls is not against the reciprocal effects of everyone doing her part in a relationship like

this; he recognizes that this kind ofbonds generate friendly feelings and mutual confidence.

But Rawls goes further to maintain that "without a common or overlapping sense of justice

civic friendship cannot exist. The desire to act justly is not, then, a form ofblind obedience

to arbitrary principles unrelated to rational aims.,,31 In this sense, although natural

attachments to particular persons and groups still have an appropriate place, justice is

independent from "the accidentaI circumstances of our world".32 Rawls insists that among

the diverse ways of grounding social cooperation, the one that should prevail is that which

depends on the moral claims to justice. This way, the recognition that we and those for

whom we care are "the beneficiaries of an established and enduring institution" tends to

engender in us the corresponding sense of justice. 33

Community and justice do not necessarily conflict, but "it is precisely when

affection fails that justice is needed to enable individuals to control their own lives. This

does not mean that we must choose between having either affection or justice from those

with whom we have an enduring relationship; rather, in such complex and lasting relations,

we need only to determine the proper boundaries between justice and affection. ,,34 Against

the communitarian objection, justice is not a divisive value of society; ultimately, it is what

makes a community of free and equal persons govemed by moral reciprocity and mutual

31 Rawls, A Theory of Justice, p. 417.

32 Ibid., p.416.

33 Ibid., p. 415.

34 Lu, Op. Cit., p.9.

52

respect possible.35 Rawls considers the communitarian approach as providing a conception

of justice based on a too thick idea of fellowship; and disrespects the moral interests of

individuals as self-determining ends in themselves. Under Rawls' vision, justice inspired

on affection is vulnerable: it is bound to the approval or disapproval of the mood of a

certain community. In Political Liberalism, he insists on a conception of justice that, based

on the moral equality of persons, gives full worth to aIl citizens' reasonable conceptions of

the good.

IV. Moral equality and the fact of reasonable pluralism

Rawls' later work represents an important theoretical shift. A Theory of Justice,

according to him, offered "justice as fairness" as a comprehensive liberal doctrine; and a

well-ordered society should not contradict the fact of reasonable pluralism. Thus, Rawls

moves from a comprehensive theory of justice to a political conception of justice. To

understand what a political conception of justice entails, it is helpful to contrast it with a

comprehensive religious, philosophical, or moral doctrine. According to Rawls that

distinction highlights the great differences between political and comprehensive Iiberalism.

As Rawls maintains,

the distinguishing features of a political conception of justice are, first, that it is a

moral conception worked out for a specific subject, namely, the basic structure of a

constitutional democratic regime; second, that accepting the political conception

35 While it is true that people can only criticize social practices by drawing on the ideas about justice they have leamed in their community, the need for a reform just shows that sorne requirernents of justice may go unfulfilled for a long time. This is Kyrnlicka's idea that "the efficacy of a justice daim and its legitimacy are two separate questions." (Kyrnlicka in Bell, Op. Cit., p. 215.)

53

does not presuppose accepting any particular comprehensive religious,

philosophical, or moral doctrine; rather, the political conception presents itself a

reasonable conception for the basic structure alone; and third, that it is formulated

not in terms of any comprehensive doctrine but in terms of certain intuitive ideas

viewed as latent in the public political culture of a democratic society.36

In contrast, a doctrine is fully comprehensive when it covers aH recognized values and

virtues within one rather precisely articulated scheme of thought, whereas a doctrine is only

partially comprehensive when it comprises certain (but not aH) nonpolitical values and

virtues and is rather loosely articulated.

The shift in Rawls' position is evident in Political Liberalism, where he elaborates a

political conception of justice. Such a conception, Rawls argues, must have the kind of

context associated with liberalism historically (it must aflirm certain basic rights and

liberties, assign them a certain priority and so on), but within which the right and the good

are complementary. For Rawls in Political Liberalism "a political conception must draw

upon various ideas of the goOd.,,37 This means that the ideas of the good justice draws upon

must fit within the limits drawn by that political conception itself. As Rawls says "in justice

as faÏrness the priority of the right implies that the principles of (political) justice set limits

to permissible ways of life; hence the c1aims citizens make to pursue ends that transgress

those limits have no weight (as judged by that political conception).,,38 By "permissible

36Rawls (1988), "The Priority of Right and Ideas of the Good" in Collective Pa pers, Harvard University Press, 1999, p. 450.

37 Ibid., pA51.

38 Ibid., pA49.

54

ways of life" Rawls means that citizens regarded as free and equal share political ideas that

belong to a reasonable political conception of justice and that those political ideas do not

presuppose any particular fully or partially comprehensive doctrine.

Rawls, however, does not abandon the idea of the priority of the right itself: a

political conception is founded on the respect of citizens as free and equal. In other words,

its basis is still the respect of persons as moral equals and ends in themselves. But, he do es

pay attention to the outstanding fact of our plurality.

As discussed in chapter 2, in Rawls' approach to justice, the moral equality of

persons is fundamental. While the fust princip le involves the natural duty of mutual

respect, and "it is owed to human beings as moral persons", the second principle "regulates

the structure of organizations and distributive shares so that social cooperation is both

efficient and fair." The principles of justice aim to protect persons from morally arbitrary

natural and social contingencies. Now Rawls' revised vision of justice underlines the

recognition of a political consensus resulting from our own moral capacities to tolerate

reasonable pluralism. He argues in Political Liberalism that "we join [the] fIfSt fundamental

question [of justice] with a second, that oftoleration understood in a general way.,,39

In reformulating his view, Rawls aims to reconcile the fact of diversity with the

ideal of the moral equality of persons. Rawls questions "how is it possible for there to exist

over time a just and stable society of free and equal citizens, who remain profoundly

divided by reasonable religious, philosophical, and moral doctrines?,,40 But, although he

came back to the issue that his former account was a bit insensitive to underline the value

39 John Rawls, Political Liberalism, p.3.

40 Ibid., pA.

55

of political tolerance, he does it in a way that does not contradict what he had said on moral

and substantive equality. In this respect, he insists failure to recognize the fact of our

plurality could be damaging to the "social bases of self-respect", the most important

prÏmary goOd.41 These bases are those aspects of basic institutions normally essential if

citizens are to have a sense of their own worth as persons and to be able to develop and

exercise their moral powers and to advance their aims and ends with self-confidence.

In A Theory of Justice, the idea that the princip les of justice should be the product of

an imaginary prior agreement, by persons deprived of knowledge of their actual social

position, was a pro minent part of Rawls' approach. Indeed, it was regarded by him as its

foundation, though in my view it was much shakier than the substantive moral conception

that it was supposed to support. In Political Liberalism, instead, Rawls prefers to use a

political conception of the person because the original attempt presupposed a metaphysical

doctrine of the person. So citizens are conceived as free in that they conceive of themselves

and of one another as having the moral power to have a conception of the good; they have

deep aims and commitments - political and non- political- that specify their moral identity

and give shape to a person's way of life, what she sees herself doing and trying to

accomplish in the social world; they view themselves as free in the respect that they regard

themselves as being entitled to make daims on their institutions in order to advance their

41 Rawls, A Theory of Justice, p. 386. For Rawls, prÏmary goods include:l- The basic liberties; 2- Freedom of movement and free choice of occupation against a background of diverse opportunities (the se opportunities allow the pursuit of diverse fmal ends and also allow us to revise and change them if we so desire); 3- Income and wealth (understood broadly as all-purpose means having exchange value); and 4- The social bases of self­respect This is Jeffrey Paul's classification of prÏmary goods. See Paul, J., 'Rawls on Liberty', in Conceptions of Liberty in Political Philosophy, ed. Zbigniew Pelczynski and John Gray (The Athlone Press, London, 1984).

56

conceptions of the good (provided the se conceptions faH within the range permitted by the

public conception of justice); they are also capable of taking responsibility for their ends

and this affects how their various claims are assessed. This conception of the self also

reveals that the right and the good are complementary, that a political conception of justice

must leave adequate room for forms of life citizens can affrrm. This last point puts Rawls

very close to Charles Taylor. 42

In "The Politics of Recognition," Taylor maintains that "a society with strong

collective goals can be liberal, provided it is also capable ofrespecting diversity, especially

when dealing with those who do not share its common goals; and provided it can offer

adequate safeguards for fundamental rights".43 Taylor defends a kind of liberalism that

"allows for astate committed to the survival and flourishing of a particular nation, culture,

or religion, or of a (limited) set of nations, cultures, and religions -so long as the basic

rights of citizens who have different commitments or no such commitments at all are

protected.'.44 But, ultimately, the main idea is that "a sense of shared common good should

animate political communities".

Although Taylor favors the idea of astate committed to a collective goal, provided

the rights of citizens who have different commitments or no such commitments at aIl are

protected, Rawls' mode! would not be incompatible with Taylor's. The idea is to frnd a

42 What is not always clear in Taylor's approach to justice is how moral reciprocity should be realized; it is not always clear in what respect, moral equality should be the inspiring source of justice. The answer may lie in the fact that Taylor is not a Kantian.

43 Charles Taylor, "The Politics of Recognition" in Multiculturalism, ed. Amy Gutmann (Princeton, NJ: Princeton University Press, 1992) p. 59.

44 "Comment" by Michael Walzer in Multiculturalism, p. 99.

57

shared idea of citizens' good that is appropriate for political purposes; a political

conception may be the focus of an overlapping consensus. That is so under the premise that

the space allowed for forrns of life that can affirrn citizens' sense of the good must fit

within the limits drawn by that political conception itself. The moral consequences of

applying a political conception of justice would be the same everywhere in the respect that

basic rights of citizens would be always protected. In this sense, it is plausible that Rawls

and Taylor would not disagree.

Rawls views the idea of a well-ordered society in terrns of a society effectively

regulated by a political conception of justice that can gain the support of an overlapping

consensus between reasonable comprehensive doctrines. For Rawls "such consensus

consists of aIl the reasonable opposing religious, philosophical, and moral doctrines likely

to persist over generations and to gain a sizable body of adherents in a more or less

constitutional regime, a regime in which the criterion of justice is that political conception

itself.,,45 What are the implications of this? Maybe that it is impossible for the basic

structure of a just constitutional regime not to have important effects and influences on

which comprehensive doctrines endure and gain adherents over time. This takes us back to

the idea of the neutral state. From what has been said above, neutrality of effect is

abandoned by politicalliberalism, and is not supportable through the principle of the moral

equality of persons. Instead, it is possible to talk about procedural neutrality or neutrality

of aim (or neutrality of intention) because the basic institutions and public policy are not to

45 Rawls, Political Liberalism, p.I5.

58

be designed to favor any particular comprehensive doctrine.46 Certainly basic social

institutions cannot support comprehensive doctrines that deny the moral equality of persons

and still daim to be expressions of liberal justice.

v. Conclusion

Rawls' concern in A Theory of Justice is about the special grounds needed for moral

justification of social inequalities against a background of arbitrary conditions of the social

world. In his later work, however, he emphasizes the distinction between political values

and comprehensive values, which is fundamental to a conception of pluralistic liberalism. It

is not the distinction between values on which everyone agrees and others about which they

disagree. Disagreements about justice are just as fierce and intractable as disagreements

about religion. Rather, Rawls is making a distinction between disagreements that have to be

fought out in determining the basic structure of society and the use of political power, and

disagreements that can be left unsettled. The way to draw this boundary will itselfbe one of

the most fundamental political disagreements of aIl.

Communal, cultural and political values, according to Rawls, contain plenty of

disagreement; it is a space in which we are obliged to argue with one another and to try to

convince one another - a space of attempted mutual justification - that implies toleration

and pluralism outside it. In this sense, Rawls' liberalism requires a strong commitment to

the controversial daim that certain political values of freedom and equality take precedence

46 For Waldron the state should always decide to be neutral in respect to sorne issues. See J. Waldron, "Legislation and Moral Neutrality," in Liberal Rights (Cambridge University Press, 1993) pp143-167.

59

over divergent conceptions of the human good, and that these conceptions should not be

allowed to overthrow the political fundamentals. The result of his approach to justice is a

regime of toleration, with strong protections for the freedom of individuals and associations

to pursue different ends in life. This is a requirement of moral reciprocity between

individuals considered to be morally equal self-directing beings. That is why, against his

communitarian critics, he insists that the sense of justice should lead us not to want to

impose our own conception of the human good on others against their will, even if we have

the political power to do it. Instead, as he suggests in Political Liberalism, reasonable

competing ideas of the good should be "elaborated into a political conception of justice that

can gain the support of an overlapping consensus".47

Rawls approaches the question of justice from two different perspectives in A

Theory of Justice and Political Liberalism. This is evident in a more recent explication of

his views in "The Idea of Public Reason Revisited". There, he argues that A Theory of

Justice offered "justice as fairness" as a comprehensive liberal doctrine, "in which aIl the

members of its well-ordered society affmn the same doctrine ... This kind of well-ordered

society contradicts the fact of reasonable pluralism and hence Political Liberalism regards

that society as impossible." 48 Rawls' comments here are interesting, because while Sandel

criticized A Theory of Justice for envisioning a divisive and atomistic society lacking basic

ingredients for the pursuit of collective moral projects like redistribution, Rawls is saying

that the well-ordered society of A Theory of Justice is not diverse enough, and does not

47 Rawls, Po/itical Libera/ism, p. 15. It is in this context that he insists on the idea that the right and the good are complementary. However, a political conception limits ideas of the good.

48 John Rawls, The Law of Peoples (Harvard University Press, Cambridge, 1999), p. 179.

60

allow for enough individual (or group) variations, or what he calls ''the fact of reasonable

pluralism."

This fact may indeed affect how one interprets the category of the "worst-off'

group, since cultural or religious minorities may have grounds to belong to that category

other than their socio-economic position. A fair distribution of primary social goods that

guarantees the social bases of self-respect might thus require greater social contributions to

support minority communities within liberal societies. Although Rawls did not formulate

his theory of justice originally in these terms, it is c1ear that his commitment to the moral

equality of persons can continue to guide us in resolving diverse problems of justice in

pluralistic societies.

61

Chapter 5.

Conclusion

The question of justice is the question of how human beings, whose interests and

values put them into potential conflict with each other, can inhabit with decency a common

world. 1 interpret Rawls as ahead of his time, engaged in the imagination of human

possibilities which, when properly described, will give us something to aim at.

Rawls formulates a liberal yet egalitarian model of social justice. He insists on the

priority ofbasic liberties over any principle regulating socioeconomic inequalities. Yet it is

his liberalism that leads him to a fairly stringent principle of redistribution to minimize

socioeconomic inequalities.

Rawls grounds his theory of justice in the recognition of the moral equality of

persons who have a moral capacity to develop a sense of the good and justice. Such

persons would choose princip les of justice that are founded on mutual respect of those

powers in individuals. These princip les would lead to social institutions that as much as

possible eliminate morally arbitrary advantages and disadvantages produced by natural and

social contingencies. Rawls' conception of a just society is one of exceptional solidarity, in

which no matter where an individual is socially situated, that person enjoys a social union

with fellow citizens founded on justice. This is not, according to Rawls, a mere modus

vivendi; it is a requirement of mutual respect.

Rawls' theory of justice has had many critics. Rawls' libertarian and communitarian

critics 0 bject to rus vision of Kantian egalitarianism. For different reasons, they perceive a

conflict between Rawls' "liberty principle" and his "difference principle." Put in another

62

way, they percelve a conflict between the Kantian conception of persons as ends in

themselves, and Rawls' commitment to an egalitarian redistributive princip le in his theory

of justice. What is stake in these disputes is the connection between the princip le of the

moral equality ofpersons, and the nature and value offreedom and community.

For Nozick, a commitment to treat persons as ends in themselves leads to a scheme

of individual rights to life, liberty and property that cannot be sacrificed for any social end

such as an egalitarian society, or a more efficient society. Rawls' conception of moral

reciprocity is too thick; social institutions need only make sure that individuals are

protected from violence and fraud, they should not be involved in redistributing

individuals' property for the sake of the most disadvantaged groups in society. From a

Rawlsian point ofview, Nozick misunderstands the social basis of individual freedom, and

therefore his theory cannot deliver to individuals the freedom he promises to secure. Rawls

recognizes that freedom requires that individuals or various groups are able to pursue and

advance freely their share communal and cultural ends, without penalizing or marginalizing

those groups who have different and perhaps conflicting goals. In this sense, the

separateness of persons is respected. But Rawls also recognizes that individuals are only

able to pursue their ends in a social context, and that the distribution of the burdens and

advantages of social cooperation affects the value of freedom for individuals located in

different social positions. His princip les of justice secure a fair basis for this distribution so

that the value offreedom, or the status ofbeing a self-directed person, is enjoyed equitably

by aU who cooperate to form a society.

As for communitarians, they argue that Rawlsian liberalism is overly individualistic

because it is wedded to the idea of an autonomous pre-social individual at expense of the

63

social conditions and relations within which individuals develop and exercise their truly

human capacities. Whereas liberals view communal and cultural associations as

"constraints" which limit the natural freedom of individuals, those theories that recognize

our social nature understand that community and culture are the preconditions of genuine

freedom and equality. To communitarians such as Michael Sandel and Charles Taylor,

then, Rawls' conception of moral reciprocity is too thin for a viable or desirable political

community. Expounded in this way, it is hard to understand how Rawls' liberalism

manages to gain any more than a handful of adherents.

However, 1 have tried to show that Rawls' liberalism offers a plausible and

compelling account of community and culture. It recognizes the way that communal

aspects of social life pro vide the possibility for the pursuit of human values. Rawls insists

that these values ultimately depend on the way in which each individual understands and

evaluates them. Hence the value of the social depends on our individual picture of people

forming and pursuing their own understandings of the good. The result is a regime of

toleration, with strong protections for the freedom of individuals and associations to pursue

different ends in life. This is, according to Rawls, a requirement of mutual respect. At the

same time, Rawls' account of political community as a "well-ordered society" is grounded

in an irreducible commitment to respecting individuals' social agency and responsibility.

Social institutions that support the moral equality of free and responsible persons generate

bonds of mutual respect that lead to the "difference principle," reinforcing the social bases

of self-respect and thereby ties of civic friendship. As Lu as argued, Rawls "invokes the

64

image of justice as a bond between individuals in society when he shows that acting justly

toward others implicitly involves a recognition oftheir commonality with ourselves".49

In conclusion, it is important to recall Rawls' aim in writing A Theory of Justice.

There he "sketched the more reasonable conceptions of justice for a liberal democratic

regirne and presented a candidate for the most reasonable".50 Rawls is engaged in what he

calls "realistic utopianism", or the imagination ofhuman possibilities which, when properly

described, "reconciles us to our social world". In this respect, he insists that "for so long as

we believe for good reasons that a self-sustaining and reasonably just political and social

order ... is possible, we can reasonably hope that we or others will someday, somewhere,

achieve it; and we can then do something toward this achievement.,,51 Rawls' theory of

justice is thus a moral road map of sorts by which liberal democracies can track their moral

progress.

49 Lu, "Images of Justice," p. 7.

50 Rawls, The Law of Peoples, p.128.

51 Ibid., pp. 127-128.

65

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