Copyright (c) 1994 The Columbia Law Review Columbia Law
Review
October, 1994
94 Colum. L. Rev. 1882
LENGTH:
8030 words
ESSAY: RAWLS'S ARGUMENT FROM POLITICAL
STABILITY
George Klosko *
* Professor of Government and Foreign
Affairs, Universty of Virginia. Completion of this paper was greatly aided by a
University of Virginia Sesquicentennial Grant.
SUMMARY: ... At different stages of his
career, John Rawls has attempted to justify his principles of justice through
different methods. ... Under those circumstances in which the representative
individuals would view stability (what can be called "political stability") as
an important concern, justice as fairness would make a relatively small
contribution to it, and so considerations of stability would favor different
principles. ... A useful account of "political stability" is provided by Seymour
Martin Lipset, according to whom a stable democracy is one that has enjoyed "the
uninterrupted continuation of political democracy since World War I and the
absence over the past twenty-five years of a major political movement opposed to
the democratic "rules of the game.' ... Rawls continues to endorse the moral
psychology presented in A Theory of Justice (pp. 8188, 14044), and is still
deeply concerned with the moral stability of principles of justice. ... Putting
the two fundamental questions together, Rawls wishes to identify the best
possible principles of justice in purely normative terms that will also promote
political stability. ... In contrast to a modus vivendi, an overlapping
consensus is morally stable in Rawls's sense. ... In Political Liberalism, he
suggests that a stable society is based on moral stability, without exploring
other factors (pp. 14044, 16063). ...
TEXT: [*1882]
At different stages of his career, John Rawls has attempted to justify
his principles of justice through different methods. In his classic article,
"Justice as Fairness," published in 1958, he relies on a version of the social
contract argument. n1 A Theory of Justice, published in 1971, presents a more
elaborate contract argument, employing the now familiar device of representative
individuals deliberating behind a "veil of ignorance" in the "original position"
and important related notions, such as the doctrine of primary goods. n2 Since
the publication of A Theory of Justice, Rawls has moved towards a sociological
account of his principles, which are represented as the core of a "political"
conception of justice and which can constitute the heart of an "overlapping
consensus" in contemporary liberal society. (These ideas are discussed below.) A
developed account of this last position is presented in Rawls's recent work,
Political Liberalism, aspects of which are examined in this Essay. n3 It is
striking that, as Rawls has moved between these justificatory models through a
period of more than thirty-five years, there has been little change in the
content of his moral view. Throughout this period, he has continued to defend
his two principles of justice and the overall view he refers to as "justice as
fairness" with relatively little alteration. n4
Two
distinct sides to Rawls's sociological defense of his principles can be
distinguished. First, he claims that justice as fairness is worked up from
"certain fundamental ideas seen as implicit in the public political culture of a
democratic society" (p. 13). The basic idea here is that Rawls believes his view
is most "congenial to" or represents the most consistent [*1883]
elaboration of central aspects of democratic political culture. n5 A second,
increasingly important claim in Rawls's recent works is that a particular kind
of moral/political view he calls "political liberalism" is necessary for the
stability of liberal society, and that justice as fairness is such a view. The
subject of stability receives considerable attention from Rawls. In Political
Liberalism he says that the need to remedy defects in his account of stability
in A Theory of Justice led to all revisions of his theory in the later work (p.
xvii). In other respects, Rawls takes "the structure and content of [A] Theory
[of Justice] to remain substantially the same" in the later work (p. xvi).
This Essay examines Rawls's conception of stability and
its role in justifying his moral principles. Though Rawls places great weight on
stability, his account of it is unsatisfying in important ways. In the
Introduction to Political Liberalism, he identifies "the problem of political
liberalism" as follows: "How is it possible that there may exist over time a
stable and just society of free and equal citizens profoundly divided by
reasonable though incompatible religious, philosophical, and moral doctrines?"
(pp. xviii, 4). However, some aspects of Rawls's view of a stable society are
unclear, while others are highly idiosyncratic. Part I of this Essay reviews
Rawls's account of stability in A Theory of Justice and an ambiguity in his
presentation in Political Liberalism. Part II examines the role of stability in
establishing justice as fairness in the later work. In particular, this Part
explores how considerations of stability would figure in the reasoning of the
representative individuals in the original position in Political Liberalism, and
whether these concerns would favor Rawls's preferred principles of justice. This
Essay contends that Rawls faces a dilemma. Under those circumstances in which
the representative individuals would view stability (what can be called
"political stability") as an important concern, justice as fairness would make a
relatively small contribution to it, and so considerations of stability would
favor different principles. Under other circumstances, in which justice as
fairness might do more to promote stability, the representative individuals
would view stability itself as a minor concern and so would accord it little
weight in their deliberations.
I. Rawls's Conception of Stability
A. Stability in A Theory of
Justice
In A Theory of
Justice, Rawls justifies particular principles of justice by arguing that they
would be chosen by suitably described representative individuals, deliberating
behind a hypothetical veil of ignorance, in the original position. Because they
want their chosen principles to endure, the representative individuals are
concerned with the notion of stability. Rawls views stability as an attribute of
moral principles. His concern with [*1884] this stems from certain
"laws of moral psychology," which center on the generation of feelings of
reciprocity: "Persons tend to love, cherish, and support whatever affirms their
own good." n6 An individual brought up in a society in which everyone else
adheres to moral rules, thereby conferring great benefits on all members of
society, including himself, will develop a desire to comply as well. Rawls
describes a set of moral principles as stable if it is able to generate
attitudes that are sufficiently strong to outweigh other factors that would lead
people to act unjustly:
When institutions are just (as defined by this conception), those
taking part in these arrangements acquire the corresponding sense of justice and
desire to do their part in maintaining them. One conception of justice is more
stable than another if the sense of justice that it tends to generate is
stronger and more likely to override disruptive inclinations and if the
institutions it allows foster weaker impulses and temptations to act unjustly.
The stability of a conception depends upon a balance of motives: the sense of
justice that it cultivates and the aims that it encourages must normally win out
against propensities toward injustice. n7
Stable
moral principles generate strong desires to comply throughout society, thereby
fostering general adherence to society's moral principles. Rawls describes such
a society as "well-ordered." In such a society, "everyone accepts and knows that
the others accept the same principles of justice, and the basic social
institutions satisfy and are known to satisfy these principles." n8
Rawls's discussion of stability immediately appears
somewhat odd. As the term is generally used in discourse about politics,
stability is an attribute of political systems rather than of moral principles.
n9 While the concept doubtless admits different interpretations, according to
the most common usage, stable systems are characterized by law and order,
smoothly functioning institutions, and similar features. Most obviously, such
systems are without ruinous social conflict and other sources of disruption. A
useful account of "political stability" is provided by Seymour Martin Lipset,
according to whom a stable democracy is one that has enjoyed "the uninterrupted
continuation of political democracy since World War I and the absence over the
past twenty-five years of a major political movement opposed to the democratic
"rules of the game.' " n10 [*1885] According to this common view, a
"stable" democracy is characterized by smoothly functioning democratic
institutions. By extension, other stable governments possess similar
features.
Rawls's account of stability is importantly
different. Rather than a characteristic of political systems, stability is an
attribute of moral theories. A stable principle of justice is one that is able
to give rise to certain attitudes. At one point, Rawls refers to this as the
question of "psychological stability." n11 For ease of reference, stability in
this sense can be referred to as "moral stability."
Moral stability figures prominently in A Theory of Justice in the
choice of moral principles in the original position. Though they are behind a
veil of ignorance, the representative individuals are aware of "the general
facts about human society," concerning such matters as political affairs,
economic theory, and human psychology. n12 Among such facts discussed by Rawls,
those bearing on moral stability are prominent. n13 When the representative
individuals make their choice, a "strong point" in favor of a particular
conception of justice is that it gives rise to the attitudes in question and so
generates its own support. n14 Because his principles evince greater concern for
the value of each individual and the crucial primary good of self-respect, Rawls
believes they will be more stable than utilitarian alternatives. n15
[*1886]
Rawls's overall reasoning in regard
to stability can be surmised. He appears to believe that the representative
individuals will be interested in moral stability, because this contributes to
political stability, which is a necessary condition for acceptable lives. If
this is actually Rawls's argument, then it depends on two assumptions. First,
there must be significant differences between the contributions different moral
principles make to political stability, and the contribution his principles
would make must be significantly greater than that of other principles,
especially utilitarian ones. Unless the difference between the respective
contributions is substantial, the representative individuals would not appeal to
this factor in their reasoning. Second, political stability must be an important
consideration. If the representative individuals were not concerned with the
threat of instability, the added contribution of Rawls's principles would not be
a "strong point" in their deliberations. n16
B. Stability in Political Liberalism
Rawls attributes the major differences
between Political Liberalism and A Theory of Justice to his realization of the
irreducible pluralism of contemporary liberal societies. If widespread
disagreements about basic moral and political questions are unavoidable, then
the model of a well-ordered society presented in A Theory of Justice is, as
Rawls says, "unrealistic" (p. xvii).
In Political
Liberalism (and a series of articles leading up to it) n17 Rawls attempts to
develop what he calls a "political" conception of justice. In contrast to other
moral doctrines, a political conception of justice is neither "general" in scope
nor "comprehensive." By the former, Rawls means that a "political" view does not
address a wide range of questions, but focuses on central political and social
institutions. Unlike a comprehensive doctrine, which "covers all recognized
values and virtues within one rather precisely articulated system" (p. 13), a
political view attempts to stay on the philosophical surface and so avoids being
dependent on controversial philosophical views. This allows a political view to
be acceptable to people who subscribe to different comprehensive views. Whereas
A Theory of Justice does not distinguish between comprehensive
[*1887] and political views, and so assumes that all members of
society will understand Rawls's principles in the same way, Political Liberalism
presents a toned-down account of a well-ordered society.
Because of the problem of pluralism, Rawls attempts to generate a set
of principles that can be endorsed for different reasons by different people,
each of whom views them from his or her own distinctive perspective. No longer
attempting to produce moral unanimity, Rawls strives for principles that are
able to give rise to an "overlapping consensus." He believes that different
groups will be able to accept a set of common principles to adjudicate important
political issues, though they disagree about wider philosophical questions, and
accept the principles for different reasons (pp. 346, 13372).
Though Rawls's concern with pluralism leads him to revise his theory,
central features of A Theory of Justice survive in Political Liberalism.
Importantly, Rawls retains both the concepts of the original position and the
well-ordered society. He says that the original position still supports the same
two principles of justice - though, since publication of A Theory of Justice, he
has modified the first, the equal liberty principle, in response to important
criticisms presented by H.L.A. Hart. n18 In Political Liberalism, the principles
are intended to support a well-ordered society - with the qualification noted.
Rawls continues to endorse the moral psychology presented in A Theory of Justice
(pp. 8188, 14044), and is still deeply concerned with the moral stability of
principles of justice.
One difference between the works
is that in Political Liberalism, Rawls is more deeply concerned with political
stability. His greater attention to this problem is apparent in the two
fundamental questions Political Liberalism addresses. The first, a normative
question, is similar to the moral inquiry that dominates A Theory of Justice. As
stated in Lecture I of Political Liberalism, this is as follows: "What is the
most appropriate conception of justice for specifying the fair terms of social
cooperation between citizens regarded as free and equal ... ?" (p. 3). The
second question is initially described as "that of toleration understood in a
general way" (p. 3). Restated more fully, the second fundamental question is
"how citizens, who remain deeply divided on religious, philosophical, and moral
doctrines, can still maintain a just and stable democratic society" (p. 10).
Because it is used in reference to democratic society, the word "stable" in this
last quotation obviously refers to political stability. n19 Putting the two
fundamental questions together, Rawls wishes to identify the best possible
principles of justice in purely normative terms that will also promote political
stability. These two aims are evident in his statement of "the problem of
political liberalism" (p. xviii). But though Rawls now believes political
stability is a fundamental concern, it still appears to be less
im [*1888] portant than the normative appropriateness of principles -
as indicated by the first fundamental question of political liberalism. n20
In regard to the crucial question of how the stability of
moral principles promotes political stability, Rawls's view in Political
Liberalism closely resembles that in A Theory of Justice. His opinion in this
regard is central to his important idea of the overlapping consensus. n21 Rawls
believes Western liberalism emerged from a cauldron of conflict between
different groups during its formative centuries. Of special importance is the
origin of religious toleration, which arose out of European religious wars in
the sixteenth and seventeenth centuries. The fact of ineradicable pluralism led
to "discovery of a new social possibility: the possibility of a reasonably
harmonious and stable pluralist society" (p. xxv). Building on this example,
Rawls argues that the task of political philosophy is set in motion by "deep
political conflicts." It is utopian not to believe such conflicts exist. They
generate the requirement that political philosophy bridge significant
differences: "We turn to political philosophy when our shared political
understandings ... break down" (p. 44). It is notable that to illustrate such
conflicts Rawls uses the example of disagreements between the American North and
South over slavery (p. 45). Such cases demonstrate the importance of finding
means for groups to coexist in peaceful, stable societies.
But it is not enough for Rawls that groups merely coexist. He
distinguishes between what he calls a modus vivendi and an overlapping
consensus. The modus vivendi is conceived on the model of a truce. Groups with
different views agree to live and let live, but with the tacit proviso that
their agreement will last only as long as the balance of power between them
remains the same. Such an agreement is morally superficial; if the balance of
power shifts, the dominant group is likely to attempt to renew conflict with its
now weaker opponents (pp. 14748). An example of a modus vivendi is the
relationship in the sixteenth century between Catholics and Protestants, who
came to endorse the principle of toleration out of necessity rather than
conviction (p. 148).
In contrast to a modus vivendi, an
overlapping consensus is morally stable in Rawls's sense. Its adherents support
it for reasons that go beyond convenience. Toleration is rooted in their
comprehensive moral views - though supported differently by the views of
different groups - and fostered by the sense of justice that develops in a
well-ordered society (pp. 14050). A significant advantage of an overlapping
consensus is its greater political stability. Groups are likely to adhere to it
even if the balance of power shifts in such a way that one group would be able
to take advantage of others (pp. 14749). [*1889]
If the representative individuals accept Rawls's assumptions about
moral psychology and the relationships between different groups, they may well
choose his principles of justice over possible alternatives. As Rawls says in A
Theory of Justice: "Other things equal, the persons in the original position
will adopt the more stable scheme of principles." n22 Other things being equal,
they would have little reason not to. But for their reasoning to be sound,
Rawls's principles must make a real difference for political stability, and
maintaining political stability must be a real concern.
Even if these assumptions are granted, however, Rawls's argument still
confronts a possible conflict. The two fundamental questions of political
liberalism indicate that the representative individuals must keep two
considerations in mind: they must choose principles that are normatively
superior, and that contribute most to a stable society. n23 Rawls does not pay
much attention to the possibility that these goals might diverge, apparently
because of an additional assumption that the best moral principles will
contribute most to political stability. n24 This assumption rests on his view of
the psychological qualities that proper moral principles generate. Accordingly,
Rawls notes that if his moral psychology is incorrect, "there is a serious
problem with justice as fairness" as he has presented it (p. 252).
Although A Theory of Justice recognizes that political
stability influences the representative individuals' deliberations, Rawls's
increased attention to problems of pluralism in Political Liberalism makes
concerns of stability more pressing. However, though Rawls is aware that his
defense of his principles of justice rests heavily on his moral psychology, he
does not adequately address the concept of political stability and
considerations that bear directly on it.
II. The Representative Individuals' Deliberations
Concerning Political Stability
This Part examines the role political stability should play in the
representative individuals' deliberations. Though Rawls's increased attention to
political stability in Political Liberalism is apparent in particular examples
he uses, especially the wars of religion and other social conflicts, he does not
explain exactly how stability affects the representative individuals'
deliberations. Their reasoning, however, can be reconstructed.
Briefly, according to Rawls, the representative individuals deliberate
in two stages. In the first, they begin with certain ideas Rawls views as
fundamental to liberal political culture. These are the following
concep [*1890] tions: first, society as a fair system of social
cooperation; second, citizens as free and equal persons; and third, a
well-ordered society, "effectively regulated by a political conception of
justice" (p. 14). Rawls describes these ideas as "implicit in the public
political culture of a democratic society" (p. 13). This important contention
receives no detailed discussion, and Rawls does not explain exactly what he
means by this or other similarly obscure formulations. n25 But it appears his
position is that these ideas are central to liberal political thought as a
whole. Whatever their other differences, participants in diverse liberal
traditions subscribe to these ideas, which can therefore be used as starting
points for developing moral principles that otherwise disparate groups will
accept.
Deliberating behind the veil of ignorance, the
representative individuals are, of course, unaware of their particular
attributes, such as economic status, age, sex, religion, race, and level of
natural abilities. At the first stage, they are also unaware of their
comprehensive moral views (pp. 24, 14142). They choose suitable principles of
justice as a "freestanding view" by working out the implications of the
fundamental intuitive ideas (pp. 10, 12, 64, 14445). Rawls fears that if
principles were developed from the comprehensive views existing in society,
principles of justice would be "political in the wrong way" (pp. 3940, 142). A
compromise between comprehensive views might resemble a modus vivendi, which is
unstable in the long term.
After generating their
principles in the first stage, the representative individuals attempt to
determine whether these can support an overlapping consensus between diverse
groups, and thus promote long-term stability. That Rawls regards political
stability as a central concern is clear from this second stage, which is absent
from A Theory of Justice. Because success at this stage is necessary (pp. 6566,
78), initial selection of principles is provisional. Some tinkering might be
needed to make sure principles are congenial to society (pp. 6566). But although
Rawls clearly recognizes considerations of political stability, the fact that he
relegates them to this confirmatory stage indicates that they are secondary to
concerns of justice. n26
A.
The "Political Threshold"
Though Rawls recognizes the significance of political stability, his
discussion is inadequate in various ways. To begin with, he never explains
exactly what he means by political stability, or such related notions as "an
enduring and secure democratic regime" (p. 38). This omission is significant
because these concepts admit different interpretations. Rawls believes in the
"burdens of reason," the fact that people legitimately, in [*1891]
deed, inevitably come to different conclusions in moral matters (pp. 5458).
Accordingly, they will subscribe to different views about the nature of a stable
society, which is a complex, normative concept. It seems that Rawls pays little
attention to considerations of political stability because he closely associates
this notion with moral stability, and he believes that the latter will promote
the former. In Political Liberalism, he suggests that a stable society is based
on moral stability, without exploring other factors (pp. 14044, 16063). n27
A view of political stability more conventional than
Rawls's will recognize this quality's specificity. It is central to conventional
views of stability that particular factors promote stability in different ways
in different societies. Realizing this could lead the representative individuals
to endorse different moral principles for different societies. Social scientists
traditionally recognize that factors affecting political stability vary with
societies. Montesquieu provides a classic statement of this view in The Spirit
of Laws. He argues that each country has a "general spirit" (esprit general),
comprised of its climate, geological features, economic characteristics,
religion, customs, etc., and that, in order to function properly, specific laws
must be in accord with this. n28 Because this is the dominant view among social
scientists, it will be accepted by the representative individuals. Rawls
provides no reason for setting this view aside in favor of his apparent belief
that a single set of moral principles will most effectively promote stability in
all liberal societies.
Rawls's treatment of stability
is one respect in which he deviates from his general practice of working within
developed scholarly traditions. In many ways, Rawls views himself as a
traditional scholar. For example, he makes frequent references to the history of
moral philosophy and has doubts about moral conceptions that are not supported
by a tradition of adherents (pp. 5960). n29 Rawls believes the problem of
stability is "fundamental to political philosophy," and is surprised it "has
played very little role in the history of moral philosophy" (p. xvii). The
reason for this is surely the oddness of his conception of stability. He all but
ignores the problem of stability as it has been discussed by political
philosophers and social scientists for centuries. His entire treatment of
political stability is hampered by his failure to examine different factors that
contribute to, or weaken, this. His emphasis on moral stability above all other
factors [*1892] would strike most political sociologists as, at
best, an unusual claim, lacking either empirical or philosophical support.
If the representative individuals are more attuned to the
range of factors that affect political stability, they will take these into
account in their deliberations. In particular, knowing that causes of stability
vary, the representative individuals are likely to require detailed information
about the particular societies they consider and could recommend different moral
principles for different societies. This information would not violate the veil
of ignorance, since they need not know to which particular societies they
belong, to say nothing of their own particular attributes. Confirmation of the
representative individuals' license to provide different principles for
different societies is the fact that Rawls has them derive "special" and
"general" conceptions of justice as fairness for different kinds of societies in
A Theory of Justice. n30
Rawls distinguishes special
and general conceptions of justice as fairness because he believes a society
must meet a certain threshold of economic well-being before the two principles
of justice are appropriate for it. Though Rawls nowhere pursues this
implication, a similar distinction could be invoked in regard to matters of
political stability. Because of their great concern with this subject, the
representative individuals would do well to consider a related threshold bearing
on the degree of conflict between groups and the resulting degree of social
harmony. A basic distinction they could invoke is between what can be referred
to as hostile and peaceful pluralist societies. n31 If a society is so lacking
in social concord that enjoyment of liberty is not possible, the representative
individuals might be willing to curtail individual rights until the requisite
level of security is attained. Their reasoning here would be analogous to what
Rawls presents for the general conception of justice as fairness. Rawls argues
that, when a society's level of economic development does not permit full
enjoyment of rights, the representative individuals will decide to limit these
to the extent necessary "to raise the level of civilization so that in due
course these freedoms can be enjoyed." n32 By appealing to a similar threshold
in regard to political stability, the representative individuals would see the
need to limit certain rights if this is necessary to create conditions under
which full rights will be possible. For ease of reference, this Essay will refer
to this threshold as the "political threshold," to distinguish it from the
"economic threshold" to which Rawls appeals in distinguishing the general and
special conceptions of justice as fairness.
Hostile
pluralist societies fall below the political threshold. Violent conflict between
groups tears these societies apart, even though they remain democratic. Examples
include Northern Ireland, with its conflict [*1893] between
Protestants and Catholics, and India, with its array of religious conflicts.
This list could be expanded to include non-democratic societies, or various
societies in which democratic institutions are only beginning to take hold.
Confining the category to democracies still allows it to include Rawls's example
of the United States prior to the Civil War, though his example of Europe in the
age of religious wars is ruled out. The most notable peaceful pluralist
societies are the industrial democracies since World War II, all of which have
had relatively little conflict between groups, though there has been at least
some in most countries. It seems evident that these societies surpass the
political threshold and so possess the amount of political stability necessary
for full political rights, an approximation of which their members presently
enjoy.
Once the political threshold is introduced and
peaceful and hostile societies distinguished, Rawls's interest in promoting
political stability raises a dilemma. In hostile societies, in which these
concerns are most salient, the representative individuals are unlikely to choose
Rawls's principles because others would make a more significant contribution. In
peaceful societies, on the other hand, considerations of moral stability might
favor Rawls's principles. However, such societies are already quite stable, and
so marginal differences in moral stability between Rawls's principles and others
would carry little weight in the representative individuals' deliberations.
B. Hostile Pluralist
Societies
The
representative individuals' deliberations concerning societies that fall below
the political threshold should proceed along the following lines. To the extent
they are influenced by considerations of stability, the representative
individuals will probably choose principles for these societies with less moral
content than Rawls's principles. Stability is only one concern among many, but
Rawls recognizes that stable social and political systems are necessary
conditions for the enjoyment of rights and liberties. n33 To the extent they
consider the need to create stability, the representative individuals could well
choose principles that center on procedures to resolve disputes in ways
contending groups would find acceptable. Insofar as they are concerned with
stability, the representative individuals will recognize suitable procedural
mechanisms as necessary prerequisites for other concerns. Something along these
lines is chosen by the contending inhabitants of John Locke's state of nature,
n34 and is [*1894] similar to the "constitutional consensus" n35
found in existing liberal societies.
It is important to
note that though principles of justice centering on these features protect
individual rights, they fall short of the "priority of liberty" that is central
to Rawls's principles. n36 The need to make trade-offs between liberty and
security is a familiar theme in political theory. Briefly, as individuals have
greater reason to be concerned for their safety, they may be more willing to
sacrifice some of their liberty for increased security. n37 Under conditions of
social unrest, they might consider relaxing various protections, such as the
rights of suspected criminals. In extreme circumstances, they might welcome
martial law. Because trade-offs can be necessary, the particular conception of
rights expressed in Rawls's principles is more suited to some societies than
others. For instance, in A Theory of Justice, Rawls argues that self-respect is
the most important primary good. n38 But clearly, in conditions of widespread
unrest, self-respect would take a back seat to security. Similarly, the need for
security - and so means to adjudicate between contending groups - would take
precedence over expansive rights to free speech or association. Because of their
emphasis on self-respect and the special requirements of the least advantaged
members of society, Rawls's principles of justice are best suited to societies
lacking significant social conflict and would be less likely than other
principles to promote political stability under conditions in which political
stability is a real concern. n39
Rawls anticipates an
objection along these lines in Political Liberalism. He argues that his
principles and the overlapping consensus to which they give rise are not
utopian. Over time, with favorable circumstances, a modus vivendi can develop
into an overlapping consensus as people become accustomed to increasing degrees
of social harmony and their [*1895] moral psychologies evolve
accordingly (pp. 14050, 15868). Because of the potential for greater stability
to develop, Rawls believes the representative individuals would still choose his
principles (pp. 15868). However, he does not consider the possibility that
preferable moral principles might vary with degrees of political stability. Even
if the representative individuals would eventually support his principles, they
might still choose a modus vivendi for the insecure conditions out of which
stable societies emerge. A constitutional consensus would be especially
attractive under conditions of strife, because it "may be sufficient for less
demanding purposes and far easier to obtain" than a full overlapping consensus
(p. 149). Rawls believes an overlapping consensus based on justice as fairness
"would complete and extend" the development of liberal thought that began three
centuries ago with acceptance of religious toleration (p. 154). But he does not
draw the important implication that societies with different degrees of
stability require different principles. Though Rawls repeatedly notes that his
principles are intended for societies that possess the "reasonably favorable
conditions that make democracy possible" (pp. 146, 15556, 209), he does not
discuss the possibility that this condition limits his principles' applicability
to societies that are basically harmonious.
C. Peaceful Pluralist Societies
It is possible that Rawls's position could be
salvaged for societies that surpass the political threshold and thus are without
significant instability. Were he explicitly to limit his concern to such
societies, Rawls could avoid having to demonstrate that his principles are the
most appropriate for societies with significant conflict. Because most
industrial democracies are generally harmonious, his achievement would still be
important. In this case, however, the problem is how an absence of instability
would influence the representative individuals' deliberations.
Rawls's understanding of modern democratic societies appears to be
hampered by common misconceptions. He apparently endorses a range of views that
are frequently referred to as "consensus theory." As described by James Wright,
this view holds that democratic political arrangements are inherently fragile;
they "naturally tend toward collapse in the absence of any countervailing
mechanism." n40 Because of the weakness of liberal institutions, proponents of
consensus theory believe it is important to promote democratic values throughout
society, in order to counteract destabilizing tendencies. Because the
representative individuals share [*1896] Rawls's adherence to
consensus theory, they are deeply concerned with preserving the stability of
liberal societies, and thus favor moral principles that support this.
The facts of political sociology over the past half
century, however, sharply contradict Rawls's assumptions about democratic
regimes. Brief reflection will reveal that, virtually without exception, the
industrial democracies have been remarkably stable for almost fifty years. To
quote Wright once again: "The notion that democracies are somehow inherently
unstable, that they naturally tend toward collapse, is very difficult to square
with this and most other aspects of world political history since World War II."
He continues: "In the modern world, democracies prove not to be inherently
unstable, as much theory suggests, but rather obdurately stable under almost all
circumstances." n41 If Wright is correct, then the representative individuals
will not be much concerned with political stability, and considerations of moral
stability will interest them even less. Their choice of moral principles will be
based almost entirely on other factors.
Discussion here
is complicated by the fact that political stability is, again, a complex,
controversial notion. A mere absence of conflict (i.e., the essence of what is
generally viewed as stability) is not necessarily valuable, unless it is
accompanied by desirable moral qualities. Though the liberal democracies have
been stable, they have been beset with discrimination against various minority
groups and other significant forms of injustice. Unfortunately, in many
countries, such phenomena appear to have increased in recent years, which makes
bridging the differences between contending groups a crucial concern. Rawls's
many contributions to our understanding of these matters in Political Liberalism
significantly advance current debates. In their deliberations, the
representative individuals would doubtless be concerned with the unequal
treatment of certain groups and would wish to develop an overlapping consensus
between their society's diverse comprehensive views. However, in choosing
appropriate principles, they would pay little attention to concerns of political
stability. The unequal treatment of certain groups - generally minority groups -
is distinct from concerns of maintaining public order. Because targets of
injustice are often small minorities - and often powerless as well - the
representative individuals can view their persecution as compatible with the
preservation of political stability. To proponents of liberal values, injustice
and discrimination are, of course, objectionable and contrary to their basic
moral beliefs. But to return to Rawls's two concerns of political liberalism,
these matters bear more directly on fair terms of cooperation between groups
than on preserving a stable society. It seems that in Political Liberalism - and
to a lesser extent in A Theory of Justice - Rawls runs together these different
concerns and rests far too much of his case for his moral principles on
stability. [*1897]
Conclusion
Examination of the role that considerations of stability should play in
the representative individuals' deliberations in Political Liberalism suggests
that these concerns undermine Rawls's defense of justice as fairness. Rawls
notes that political liberalism is a family of doctrines that is capable of
contributing to an overlapping consensus in society. Considerations of political
stability may well favor different moral principles for different societies. For
hostile or unstable societies, the representative individuals might support a
variant of political liberalism with a conception of rights less demanding than
Rawls's own. For peaceful or stable societies, on the other hand, they might
favor Rawls's principles, though not for reasons of moral stability.
Considerations of stability, once again, are only one topic among many that the
representative individuals would consider. But there is a possible problem in
that, beyond a certain point, arguments for Rawls's principles on grounds other
than stability run the risk of ceasing to be compatible with conflicting
comprehensive views, and thus ceasing to be "political" liberalism. These
suggestions clearly require a great deal more discussion. As things stand,
however, it appears that Rawls's support of justice as fairness on grounds of
its superior moral stability requires substantial revision. This is indeed "a
serious problem with justice as fairness" as Rawls has presented it (p. 252) -
though rather more for reasons of political sociology than moral psychology.
FOOTNOTES:
n1. See John Rawls, Justice as Fairness, 67 Phil. Rev. 164 (1958)
[hereinafter Justice as Fairness].
n2. See John Rawls,
A Theory of Justice (1971) [hereinafter A Theory of Justice].
n3. Rawls divides this work into "lectures" rather than chapters.
n4. Briefly and roughly, Rawls's two principles of justice
are as follows: the first provides equal liberty to each person; the second
concerns distribution of social and economic goods. It provides that social and
economic inequalities (a) must benefit the least advantaged members of society,
and (b) be attached to positions and offices that are open to all (pp. 56). See
also A Theory of Justice, supra note 2, at 83, 302. There are differences in
Rawls's presentation of the principles between "Justice as Fairness" and later
works. In particular, the second principle in "Justice as Fairness" is stated in
terms of the advantage of everyone, rather than the least advantaged. See
Justice as Fairness, supra note 1, at 165. See also A Theory of Justice, supra
note 2, at 6065. Important changes in the first principle stem from Rawls's
response to criticisms of A Theory of Justice presented by H.L.A. Hart (pp.
289371). See H.L.A. Hart, Rawls on Liberty and Its Priority, in Reading Rawls:
Critical Studies on Rawls's A Theory of Justice 230 (Norman Daniels ed., 1975)
[hereinafter Reading Rawls].
n5. See George
Klosko, Rawls's "Political" Philosophy and American Democracy, 87 Am.
Pol. Sci. Rev. 348, 351 (1993).
n6. A Theory of
Justice, supra note 2, at 177.
n7. Id. at 454.
n8. Id.
n9. A cursory search
under the subject "political stability" of the University of Virginia Library
system's periodical register (dating back to the early 1980s) indicates 204
titles. There are also 60 entries for books on this subject in the library
index. Although I was not sure where to look for Rawls's concept of "stability,"
keyword searches of both data bases for "moral" and "stability" turned up no
relevant entries.
n10. Seymour M. Lipset, Political
Man: The Social Bases of Politics 30 (rev. ed. 1981). This work was published
originally in 1960. Klosko, supra note 5, at 349, also quotes this
definition.
n11. See A Theory of Justice, supra note 2,
at 177.
n12. See id. at 137. Exactly what these facts
are is a matter of some controversy, while reliance on different sets of general
facts could well lead the representative individuals to select different
principles of justice. Rawls has been criticized for not adequately exploring
the implications of possible disagreements along these lines. See, e.g., Richard
W. Miller, Rawls and Marxism, in Reading Rawls, supra note 4, at 206. Because
Rawls supplies the representative individuals with information relevant to their
deliberations throughout A Theory of Justice, he is unable to avoid the
implication that the information in question is his own understanding of these
facts, that is, what he accepts as true about politics, society, psychology, and
so on. For one area in which Rawls's understanding of an important subject
matter is open to question, see infra Part II.A.
n13.
See A Theory of Justice, supra note 2, at 138.
n14. See
id. at 177.
n15. These considerations are closely
related to Rawls's argument from the "strains of commitment." See id. at 176.
Because the choice of moral principles in the original position is "final and
made in perpetuity," id., the representative individuals must select principles
that society will accept. Once again, because his principles are more deeply
concerned with the well-being of each individual than are utilitarian
alternatives, Rawls believes people would be better able to comply with them.
Concerns of stability and strains of commitment are the main considerations
Rawls advances in A Theory of Justice, Section 29, "Some Main Grounds for the
Two Principles of Justice," which provides additional support for his three
major arguments, presented in Section 26. For the appeal to stability, see id.
at 177. Briefly, Rawls's three main arguments explain why the representative
individuals should take a conservative approach to dealing with risk, which in
turn leads them to select his principles. The three arguments turn on the
following factors: the difficulty of estimating probabilities, diminishing
marginal utilities above a certain threshold, and the grave risks associated
with other outcomes. See id. at 15455; see also Thomas Nagel, Rawls on Justice,
in Reading Rawls, supra note 4, at 1, 1015.
n16. To
some extent this second assumption is complicated by an ambiguity in Rawls's
understanding of stability. As he uses the term, a "stable" society is
characterized not only by an absence of strife but also by the fact that
institutions continue to function morally. See A Theory of Justice, supra note
2, at 45758. Thus it is not always clear with which sense of stability we are
concerned. One respect in which the two senses of political stability are
related is that, in a stable society, the just institutions put into effect at
some previous time are what continue to function.
n17.
Most notable are the following: John Rawls, Justice as Fairness: Political not
Metaphysical, 14 Phil. & Pub. Aff. 223 (1985); John Rawls, The Idea of an
Overlapping Consensus, 7 Oxford J. Legal Stud. 1 (1987); John Rawls, The
Priority of Right and Ideas of the Good, 17 Phil. & Pub. Aff. 251 (1988);
John Rawls, The Domain of the Political and Overlapping Consensus, 64 N.Y.U. L.
Rev. 233 (1989). To varying extents, Rawls incorporates the substance of these
articles into Political Liberalism (pp. xiiixiv).
n18.
See Hart, supra note 4, at 23352.
n19. Throughout
Political Liberalism, Rawls more frequently uses this term - as in A Theory of
Justice - in regard to the stability of moral principles (pp. 78, 140 n.7,
148).
n20. An additional, strong indication that Rawls
values normative superiority over political stability is the order of the two
stages of the representative individuals' deliberations. See infra text
accompanying notes 2526.
n21. See discussion infra.
n22. A Theory of Justice, supra note 2, at 455.
n23. See supra text accompanying notes 1820.
n24. Rawls argues that, other things being equal, the
representative individuals will choose the most stable principle, thereby
identifying it as best. But this argument rests on his assumption that a given
principle will be most stable because of important normative characteristics.
See infra note 26.
n25. See Klosko, supra note
5, at 35051.
n26. It is also likely that Rawls proceeds
in this way because he believes success in the second stage will follow
naturally after success in the first. Because of the laws of moral psychology,
principles that have the most desirable normative features will also be the most
stable morally and thus will do most to promote political stability.
n27. Rawls also explores more traditional, political
conceptions of stability (pp. 38, 134).
n28. See
Montesquieu, The Spirit of Laws, bks. 18, 19, at 28990 (David W. Carrithers ed.
& Thomas Nugent trans., 1977) (1748). Detailed discussion of the traditional
view of political stability is beyond the scope of this Essay. However, the
prevalence of a view akin to Montesquieu's is evident in the widespread opinion
that he is a founder of modern social science. See, e.g., Raymond Aron, Main
Currents in Sociological Thought 1330 (Richard Howard & Helen Weaver trans.,
1965); Louis Althusser, Politics and History (Ben Brewster trans., 1972); Emile
Durkheim, Montesquieu and Rousseau: Forerunners of Sociology 61 (Ralph Mannheim
trans., 1970).
n29. See also A Theory of Justice, supra
note 2, at 12226, 581.
n30. See id. at 6263, 15152,
54143.
n31. Because of the limitations of space and
simplicity, I will not attempt to make finer distinctions between levels of
conflict, though the representative individuals might well pursue them. This
basic distinction illustrates my overall point.
n32. A
Theory of Justice, supra note 2, at 152.
n33. Though
these necessary conditions receive little direct discussion in A Theory of
Justice, they are clearly assumed. See, e.g., id. at 21213, 380. Rawls's
increased emphasis on avoiding ruinous political conflicts in Political
Liberalism (pp. xxiv, 4445, 14748) makes the need for a stable social and
political system more evident in this work.
n34. Locke
argues that individuals in the state of nature will leave this condition by
ceding certain of their rights to a neutral government that will adjudicate
their disputes. See John Locke, Of Civil Government Second Treatise 7880, 10204
(Henry Regnery Co. 1955) (1689).
n35. See Kurt Baier,
Justice and the Aims of Political Philosophy, 99 Ethics 775 (1989). Baier
describes this "constitutional consensus" as a consensus "on the procedures for
making and interpreting law, and where that agreement is insufficiently deep to
end disagreement, on the selection of persons whose adjudication is accepted as
authoritative." Id. at 775. Baier argues that Rawls's theoretical needs would be
better served by such an agreement than by a full-fledged overlapping consensus.
Rawls responds to Baier's view in Political Liberalism (pp. 15868). For further
discussion of "constitutional consensus," see Klosko, supra note 5, at
35556.
n36. See A Theory of Justice, supra note 2, at
4344, 24351, 54148.
n37. Perhaps the classic statement
of this view is Thomas Hobbes's Leviathan. See Thomas Hobbes, Leviathan 92
(Richard Tuck ed., 1991) (1651).
n38. See A Theory of
Justice, supra note 2, at 44046.
n39. Formally, the
first principle of justice, as discussed in Political Liberalism's "The Basic
Liberties and their Priority," might be able to accommodate severely restricted
rights because it requires that the overall system through which rights are
secured provide the most extensive rights possible under the circumstances (pp.
33140). However, highly curtailed rights such as speech and association, even if
formally compatible with the first principle, would significantly depart from
the overall tenor of justice as fairness (or the special conception of it Rawls
defends), as the general conception departs from the special conception.
n40. James D. Wright, Political Disaffection, in 4 The
Handbook of Political Behavior 12 (Samuel L. Long ed., 1981). Though Rawls does
not explicitly endorse consensus theory, his great concern with stability is
difficult to explain on any other understanding of democratic societies. It
seems that Rawls makes similar, related mistakes in his suppositions about the
political culture of liberal societies. See Klosko, supra note 5, at
35556. In these respects, Baier's description of Rawls's arguments as "armchair
sociology" seems appropriate. See Baier, supra note 35, at 783.
