But what does it really mean to say that a social order is just? It means that this order regulates the behaviour of men in a way satisfactory to all men, that is to say, so that all men find their happiness in it. The longing for justice is men’s eternal longing for happiness. It is happiness that man cannot find alone, as an isolated individual, and hence seeks in society. Justice is social happiness. It is happiness guaranteed by a social order (Kelsen, 1957: 2).
Kelsen suggests the basis of our struggles to attain a just society is the desire to be happy. The just society would be that society in which humans would be happy.1
The formula is deceptively simple; yet it opens up still more questions which threaten to turn the issue into a morass of different perspectives. It gives rise to another question, namely, ‘What is happiness?’ (Kelsen, 1957: 2)
Kelsen presupposes a qualitative concept of social and human happiness; a just social order must imply ’happiness in an objective-collective sense, that is to say, by happiness we must understand the satisfaction of certain needs, recognised … as needs worthy of being satisfied’ (ibid: 3). Justice both structures and mediates a form of social existence in which the individual desire for happiness faces up to its inevitable social existence.
How can we rank human interests? Philosophers have not only disagreed about the essence of human nature but differed in their interpretation of virtue and vice, of the sources of moraHty, and of the respective roles of reason and emotion. From the time of Aristotle’s attempt to distinguish the moral life from one of success in the techniques of production, we have seen – albeit in numerous variations – desires to resist reducing the question of the happy life to issues of utility, expediency, instrumentalism, or calculating self-interest. This – more existential – concern seeks justice as a means of dealing with fear and hope, desire and aversion, transcendence and faithfulness; above all, it seeks justice in order to be able to live in the proper way. But, again, this is no answer to our question, for how can we moderns – we creatures of multiple perspectives and radical change – accept that any particular form of social structuring is the proper way to organise social relations?
The idea of attaining the just society is deeply problematic in modernity. On the one hand, we now realise our social existence is humanly created and, by implication, we ought to be able to construct a social structure which is responsive to our needs and desires. On the other hand, as moderns aware of the inevitability of contingency, we realise that any particular form of social structure could have been something else, and can become something more.
In Nietzschean terms, a settled conception of justice is difficult for the modern because the modern ’knows’ too much and – as a result – finds pluralism and perspectivism, in short, pragmatism towards truth. We are an historical epoch that knows the inevitability of change over stability. Whatever its theor(y)ies of justice, late-modernity is doomed to dynamic – as opposed to static -justice.
Kelsen (1957: Ch 1) felt his commitment to science meant he had to reject previous static conceptions of justice.
(1) The first has been the understanding that justice consists in living according to the true structure of the natural way of the world. With the advent of modernity we realised that there was no one way of life. What became of the idea of the perfecdy just society? Kelsen was scathing:
Absolute justice is an irrational ideal or, what amounts to the same, an illusion – one of the eternal illusions of mankind.
There is no natural consensus as to the goods of human life: we are left with human interests and hence conflicts of interest. The solution of these conflicts must involve either satisfying one at the expense of the other, or compromise. It is not possible to prove that only the one or the other solution to human ordering is just. The answer is relative; under certain conditions one solution is just, under others, another.
(2) The idea of living in a state of love with God provided a second conception of justice and true happiness. This appeals to our desire for transcendence, to our wish to escape from the dirt and pain of our empirical existence, from our loneliness. But this answer is founded on faith:
God’s wisdom – which implies his justice – is a mystery; and faith, nothing but faith, enables us to get hold of this justice (ibid: 80).
Christianity provides no answer to the modern pursuit of justice, since there is no this-worldly criterion for living which can be sustained without recourse to images of the other realm. Nor can the pursuit of love, as indicated by the teaching of Jesus, solve the issue, since the promise of love, as with the promise of Marxism, is that we may attain a state of being beyond justice, beyond any rational ideal.
Jesus’ teaching is not the solution of the problem of justice as a problem of a social technique for the regulation of human relations; it is rather the dissolution of the problem. For it implies the request to abandon the desire for justice as conceived of by man (ibid: 45).
(3) A third conception is attainable but uninspiring; this is simply to live in accordance with the laws of the society. Kelsen suggests the principle ’behave in conformity with the general norms of the social order’, and the similar Kantian categorical imperative (act only on the maxim whereby you can at the same time will that the principle of your action should become a universal law), are in the final analysis empty formulas. They have no real social content and therefore provide no answer to the question of the nature of the principles we would wish to be binding on all humanity. It is, however, precisely this emptiness which provides their ideological usefulness, and Kelsen suggests they will often – albeit wrongly – be accepted as satisfactory answers to the problem of justice.
Ultimately, Kelsen implies, we cannot ever agree upon a concept of justice let alone the structure of the just society. In his Pure Theory of Law, (Chapter 12 of this text) Kelsen develops a formal rational science of law in a neo-Weberian sense; however, the concept of justice cannot be dealt with in this way. There cannot be a formal science of justice, since even if a theory of justice were logically constructed it would be based on emotive premises.2 It is not possible to identify in a scientific way the supreme values that a just order of social life should attempt to promote (1960: 5–6). One person may regard the advancement of individual autonomy as the foremost aim of legal ordering; another person may argue that law-makers should promote the goal of equality; yet another may claim that security is the overriding interest, and be willing to sacrifice equality and freedom for the fullest realisation of this value.
Thus we face an irresolvable pluralism of ideologies. If the structure of legalism embodies one dominant set of ideologies it will appear unjust from another perspective. To be just, the structure of legalism needs to accommodate perspectivism and accept that modem social existence entails the cohabitation of various emotive and narrative positions. Kelsen’s particular resolution of this dilemma was to argue that legalism is a social technique which we need to understand and strip of its mysticism. If the world is unknowable – it is so in its final analysis – the methods by which we pragmatically construct our social existence ought not to be. But while Kelsen shared Weber’s pessimism as to the rational defence of substantive issues, others have sought to develop a marriage of law and a relatively dynamic conception of justice.
Law … is a purposeful enterprise, dependent for its successes on the energy, insight, intelligence, and conscientiousness of those who conduct it, and fated, because of this dependence, to fall always somewhat short of a full attainment of its goals (Lon Fuller, 1969: 145).
Writing between 1940 (with the publication of The Law in Quest of Itself) and his posthumously published The Principles of Social Order in 1981, Lon Fuller developed a secular form of natural law which defined law as a purposive human activity. Fuller charged legal positivism with several faults: specifically, its adherents:
i. failed to include any account of how they framed important questions, and engaged in no reflexivity concerning their own positions;3
ii. often attempted to give neat juristic answers to questions that were essentially questions of sociological facts;4
iii. mistakenly perceived the study of law to involve first, the description of a ’manifested fact, to be studied for what it is and does, and not for what it is trying to do or become’, and second, they lost themselves either in conceptual quibbles, increasingly removed from social reality, or raised to central focus a method of clarification of speech and writing (specifically, linguistic analysis, as per HLA Hart’s The Concept of Law) which ’ought [only] to be viewed as a useful adjunct to philosophical thought’; and, above all;
iv. refused to attribute to law any purpose, however modest or restricted. Being solely concerned to describe the law as it was, they felt they could say nothing scientifically about how law ought to be.5
For Fuller, law is an ethical method of creating and guaranteeing form to social relations. Legal rules are expressive: each rule contains a purpose aimed at the realisation of some value of the legal order, and thus a rule is ’at once a fact and a standard forjudging facts’ (1954: 470). Can Fuller propose a conception of the overall purpose to social life? Fuller is a liberal, he cannot look back at natural law ideologies which give a settled telos to human life in the Platonic or Aristotelian tradition; how then can a standard be offered to guide us in the creation of our social life? In response, Fuller espouses a conception of dynamic potentiality while moving the idea of purpose to a high level of generality. The crucial distinction drawn in The Morality of Law (1969) is between the moralities of duty and aspiration. The morality of aspiration, or ’the morality of the good life, of excellence, of the fullest realisation of human powers’, speaks to a society where human beings strive to function at their best. While, however, the morality of aspiration alerts us to the possibilities of human achievement, the morality of duty takes us at our most base.
It lays down the basic rules without which an ordered society is impossible, or without which an ordered society directed toward certain specific goals must fail in its mark … It does not condemn men for failing to embrace opportunities for the fullest realisation of their powers. Instead, it condemns them for failing to respect the basic requirements of social living (1969: 5–6).
Nature does not mould us into a particular destiny, it offers instead coundess games of blind chance; the legal system is a complex of rules designed to rescue humans from contingency and put them safely on the road to purposeful and creative activity. However, we cannot compel a man to live a life of reason and value.
We can only seek to exclude from his life the grosser and more obvious manifestations of chance and irrationality. We can create the conditions essential for a rational human existence. These are the necessary, but not the sufficient conditions for the achievement ofthat end (ibid: 9).
In pursuing excellence we strive to create conditions for social progress which will overcome mere adherence to duty and scale the heights of human aspiration. The law is a tool to help us but we do not, and cannot, have a perfectly defined statement of where our journey is taking us, or of the society that we are trying to achieve. While we can make judgments along the way, offer dreams and coundess forms of articulation of our hopes and desires, we cannot have a setded idea of the final state. But, Fuller argues, accepting that we cannot have knowledge of the totality does not doom us to incoherence or mere emotive posturing: ’We can know what is plainly unjust without committing ourselves to declare with finality what perfect justice would be like’ (ibid: 12).
There are, however, no simple answers. Is excellence instrumental, normative or expressive? Fuller appears to say that it can be all three, albeit with differing degrees of intensity. Moreover, part of striving for excellence is overcoming alienation, making our practices an expressive reflection of our humanity. As with social progress, so too with legality: Fuller conceptualises a ’procedural version of natural law’ which he calls the ’inner morality of law’ or a theory of Eunomics (Fuller, 1954: 477–8, had previously defined this term as ’the theory or study of good order and workable arrangements’). To understand legality we must ’discern and articulate the natural laws of a particular kind of human undertaking … ”the enterprise of subjecting human conduct to the governance of rules’”. Traditional natural law cannot be accepted by the modern, since instead of thinking in terms of ultimate ends or telos, to human life (which was conceived and then imposed via the proposed social ordering that law would create and maintain), jurisprudence/eunomics should examine and set out an understanding of the means that the legal order must use to allow a certain form of human flourishing to occur.6 Our concern is with the internal operation and structure of the legal process, thus the natural laws of legality are not the old natural laws of God and man, but are more ’like the natural laws of carpentry, or at least those laws respected by a carpenter who wants the house he builds to remain standing and serve the purpose of those who live in it’ (1969: 96).
In a series of articles (The Forms and Limits of Adjudication, 1961; The Adversary System, 1961; Collective Bargaining and the Arbitrator, 1963; Mediation – Its forms and Functions, 1971), Fuller distinguished legality from essentially managerial or bureaucratic forms of decision-making. Legality is a form of decision-making by reference to established rules and principles; moreover, looking back at classical common law, Fuller identifies the centrality of integrity. Legality is not a simple matter of technique; law is not a instrumental attainment of certain ends, but an expressive phenomenon. Integrity guarantees the processes which law uses in order to take form and character.7
In Chapter 2 of The Morality of Law, ’The morality that makes law possible’, Fuller provides a narrative of an inept king who makes law in various ways, each with disastrous effect. The moral of the story is that a law-maker must abide by certain procedural ’excellences’: each instance when he does not do so damages the effectiveness of law. This ’rule-morality’ is an ’inner morality’ by contrast to an ’outer morality’ achieved in the substantive laws. It is a morality of’aspiration’ and not of duty.
Law-making is an interactional process, and failure of the law-maker to achieve procedural morality will result in the system ceasing to operate according to the precepts of legality. Fuller lists several ’excellences’ designed to conform to this natural law of legality.8 Laws must be:
1 sufficiendy general;
2 publicly promulgated;
3 prospective;
4 understandable;
5 non-contradictory;
6 fairly constant;
7 possible of performance; and
8 administered by officials according to their content, and there must be congruence between official action and declared rule.
What do these requirements entail?
1 First there must be rules. An observer should be able to identify a certain regularity of behaviour within the legal process and be able to suppose that those regularities of behaviour are not mere matters of chance, but have to do with reflections by the participants of the process on what ought to be done.
2 Second these rules must not be retrospective in operation. They must always be available for the public to guide their actions by and people should not be caught out by the demands of a rule formulated after the event to be adjudicated.
3 Third, they must be made public. These rules need to be published in such manner and time as to enable people to discover what they are and adjust their conduct accordingly.
4 They must be comprehensible. That is, the rules must be presented in a way which enables those whom they are to direct to have a chance of understanding what it is they ought not to do.
5 They must not contradict one another.
6 It must be possible to comply with the rules. The rules ought not be formulated so that they contradict each other creating a situation where the subject cannot fail to break the rule, nor should they require people to do impossible things.
7 They must not be in constant flux. They should not change so rapidly that it is impossible to co-ordinate a course of conduct so that one acts in accordance with the legal rule.
8 They must be applied coherendy and correcdy. It is not enough to have a logical structure of rules if the actual processes of adjudication or interpretation are incomprehensible, or so difficult to follow, that there is no advantage gained by creating the rules; nor should the rules be ignored in practice. We must minimise the gap between the law as declared and the law as actually administered.
Since Fuller has defined law as the enterprise whereby human behaviour is subjected to the governance of rules, it is clear laws made in conformity with all these principles need have no specific substantive moral content. In his review of The Morality of Law, HLA Hart (Harvard Law Review, 1965) claimed that to refer to morality as part of this process was to confuse morality and purposive activity. While Hart accepted the eight principles as reflecting ’good craftsmanship’, he saw them as having no intrinsic value; they were merely principles which enhanced the efficiency of law as a purposive enterprise rather than providing grounds ensuring final judgments could be arrived at concerning activities and purposes. Fuller’s principles were neutral as between the ’good and evil substantive aims’ of law, they provided no guarantee to advance the substantive ends of ’human justice and welfare’; they did not even establish ’any necessary incompatibility between government according to the principles of legality and wicked ends’. In a famous analogy, Hart claimed they would equally well apply to poisoning: ’Poisoning is a craft, it also has a purpose, but it cannot be called a morality’.
Fuller found Hart’s comments virtually incomprehensible. In his opinion Hart was blind to the existential striving of legal professionals. Looking back over the development and operation of Anglo-American common law, Fuller claimed lawyers understood the need for integrity in law; in their work they give legality a moral meaning. Fuller acknowledges Hart was perhaps arguing that a legal system could exist quite effectively without the ’excellences’;9 and while conceding this point to some extent he countered by saying that although a legal system which disregarded all these ’excellences’ might continue for a time, it could not continue indefinitely. Fuller actually believes that evil, and evil institutions, are intrinsically less coherent than goodness, and good institutions. His theory stresses the importance of institutionalisation; the coherent, principled, institutionalisation of legality.
What is generally missing in these accounts [critical of Fuller’s position] is any recognition of the role legal rules play in making possible an effective realisation of morality in the actual behaviour of human beings. Moral principles cannot function in a social vacuum or in a war of all against all. To live the good life requires something more than good intentions, even if they are generally shared; it requires the support of firm base lines for human interaction, something that – in modern society at least – only a sound legal system can supply (1969: 205).
For the Oxford legal philosopher Joseph Raz (1970), the value of the theory was limited to the negative task avoiding evils which could only have been caused by the laws anyway. But neither Raz nor Hart share Fuller’s presuppositions. The critics want Fuller to build a clear and compelling statement of the relationship between law and the substantive ends of human morality and human flourishing.
Fuller actually developed a liberal synthesis of law and social progress which takes an agnostic approach to the question of what the ends of man are; while we take the journey of modernity we cannot know the final chapter. The goal is excellence, our enterprise endeavours to it, but what this comprises in total we cannot know. Instead we must keep open the channels of ‘communication’. Our task is not to align law to some perceived natural uniformity of humanity, but rather to align it to the continual search for social betterment. Positivism is self-defeating since, while it may refuse to attribute to law as a whole any social purpose, in life we constantly ascribe meanings to law. If the jurisprudential imagination refuses to give purpose to law and legality, powerful ideologies and groups will provide purposes which are not in line with the proper aspirations of justice. Hart’s criterion of the need for survival as providing the foundation around which to construct the minimum content of natural law (1961: Chapter ix), for example, is self-defeating for it raises the issue: why do anything? Why take any risk? Fuller decries such a limited image of social life, instead he turns to a modern liberal notion, that of communication itself:
Communication is something more than a means of staying alive. It is a way of being alive. It is through communication that we inherit the achievements of past human effort. The possibility of communication can reconcile us to the thought of death by assuring us what we achieve will enrich the lives of those to come. How and when we accomplish communication with one another can expand or contract the boundaries of life itself In the words of Wittgenstein: ‘The limits of my language are the limits of my world’.
Fuller’s proposal of a central core of substantive natural law amounts to an injunction:
Open up, maintain, and preserve the integrity of the channels of communication by which men convey to one another what they perceive, feel, and desire (both quotes, 1969: 186).
Law was an expressive medium which did not have as its essential task ensuring stability, order and duty, but rather the creation of a social order in which communication and free social interaction could take place. Fuller remained convinced that a legal order which lived up to his inner morality of law would usually be essentially sound and just in its substantive contents. To his critics this was unduly optimistic, and, with the substantive ends of human flourishing left unstated, incomplete.10 But if Fuller left open the substantive meaning of justice, quite practical political problems of late modernity – emphasised in the concrete demands of masses of people after two world wars for real social justice – were to draw jurisprudence closer to debates concerning a philosophy of (re)distributive policies.
Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust … The only thing that permits us to acquiesce in an erroneous theory is the lack of a better one; analogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice. Being first virtues of human activities, truth and justice are uncompromising (1971: 3–4).
The American political theorist John Rawls begins his highly influential A Theory of Justice (1971) with the argument that social arrangements in modernity require legitimacy. Even if the arrangements of a society were efficient and perfectly logically arranged, that society does not satisfactorily express human aspirations unless we can defend its institutions as just. Moreover, ‘only in the social union is the individual complete’. A fully satisfying existential life requires justice.12 But an obvious problem arises: how are we to recognise whether the arrangements of any particular social ordering are just or unjust? Rawls’s intellectual predecessors are Kant (who provides among other things the idea of the primacy of the right over the good, and the regulative idea of the social contract) and John Stuart Mill (who provides the spirit of tolerance).
Rawls’s methodology is simple, he: (i) asserts the primacy of justice in social order;13 (ii) asserts the facts of a degree of common self-interest among the people who make up a society (survival) as well as conflicts of interest; thus to enable a stable ordering to occur (iii) a set of principles is required for choosing among the various social arrangements and underwriting any arrangement for the distribution of social goods; thus
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. That is, it is a society in which (1) everyone accepts and knows that the others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are generally known to satisfy these principles. In this case while men may put forth excessive demands on one another, they nevertheless acknowledge a common point of view from which their claims may be adjudicated (ibid: 4–5).
While there is a multitude of perceptions and theories of justice, Rawls believes (following Hart’s distinction in The Concept of Law, 1961: 155–9, between particular concepts of justice and the concept of justice14) the very fact of disagreements and arguments about justice indicates humankind’s commitment to the pursuit of justice. Some ‘political’ – as Rawls (1992) was later to define it – choice must be made. Rawls chooses the right over the good – Kant wins over Bentham:
Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. Justice denies that the loss of freedom for some is made right by a greater good shared by others … in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests (1971: 4).
Rawls is not a dogmatic neo-Kantian; his claim is to provide a reasonable theory giving a basic set of principles with which we might achieve consensus in the debate over justice.15 These principles allow for some inequalities and innovations in the reasonable balancing of equality and efficiency. Rawls seeks impartiality, but his search is not for an intellectual Archimedean point which transcends the cave of our everyday life, rather it is one dependent upon its finding acceptance with our everyday intuitions.16
Rawls constructs a thought-experiment in which we are asked to imagine ourselves meeting together to form a social contract covering the principles which will bind us in real life. Rawls asks us to imagine choosing principles for determining the principle of justice of your society from an original position located behind a veil of ignorance. The aim of the original position is to ‘nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage’.17 The parties know nothing either of themselves or their society; each does not his/her gender, race, intelligence, or class etc. The parties:
do not know how the various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations… . nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength and the like. Nor, again, does anyone know his conception of the good.
No one is in possession of the facts which could tell him/her how their life would be affected by the principles of justice and decision making procedures which they have chosen. If a person knew those things and if they knew their location, then they would probably devise principles which would bring them an advantage. However, Rawls’ methodology allows only a general knowledge of humanity; each knows that social reality will contain specific contingencies but has no knowledge of what particular contingencies will affect them.18 What then will motivate our choices behind the veil of ignorance? Rawls claims that one would obviously choose out of self-interest, but knowing nothing about oneself, self-interest becomes the interest of any one person. The consequence is that the resulting principles will be those that any one person would have voluntarily agreed upon.
Rawls (1971: 302) believes that people in the original position would chose two principles. First, each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. Second, social and economic inequalities are to be arranged so that they are both: (i) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (ii) attached to offices and positions open to all under conditions of fair equality of opportunity.
The first principle is given operational precedent ensuring that liberty always has priority. ‘Liberty can be restricted only for the sake of liberty’; in other words, it is not acceptable to legitimise restricting liberty or equality of opportunity, with the argument that such restriction will improve the lot of the worst off. But holding firmly to that principle, a related proposition is that ‘all social primary goods – liberty and opportunity, income and wealth, and the basis of self-respect – are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favoured’ (ibid: 303–3).
Those behind the veil would chose liberty as their first principle since, not knowing the actual situation or their own conception of the good life, this would give them the greatest opportunity to pursue whatever ideal they favoured. They would choose the second principle because they would operate on the basis of a ‘minimax principle’, whereby they prefer the least worst option in case they turn out to be at the lowest level of society. Not knowing where they fit into the distribution of social goods, they will be rational pessimists.
Rawls draws an analogy with fair ways of cutting a cake. One cake is to be shared among several people with a person delegated to cut it. How will he do it? Let us suppose that the person cutting the cake knows he will get the last slice; if he is selfish, motivated by self-interest (we presume he loves cake) he will slice it so that – whilst the rest may get equal slices – the last is the biggest. If he knows, however, the last slice will not go to him, but that he will get one of the earlier slices, it is more than likely that the last slice will be the smallest. If our cake-cutter is either altruistic, or does not really like cake, and knows he will get the last piece, then he is likely to make the last slice the smallest. How are we able to guarantee that each slice will be exactly the same? Rawls suggests the answer lies in the cake-cutter not knowing which slice he himself will get; in that case both the totally altruistic cake-cutter, and the totally selfish cake-cutter, will ensure each slice is similar.
Let us consider for a moment what is going on here. Rawls provides a rational choice decision-making procedure in which the knowledge involved is crucial to the outcome of the decision. However, the example is of a static situation: there was but one cake and that of fixed size. There are clearly important differences between the distribution of a cake of fixed size, and justice in an on-going society. Moreover, the idea of cake lacks the degree of complexity which the goods of life involve; the goods of life involve questions of status, power, rights, money, property, and so forth. How are we to distribute this varied largesse? How are we to ascertain the worth of what is being distributed? Whereas, the consumption of the cake may provide a temporal pleasure, the consumption of many of life’s goods (for example, access to university education) can lead to the consumption of a whole range of other of life’s goods (ie made available by a higher class of job). Thus to concentrate only upon primary goods (such as cakes) provides a weak notion of equality for an ongoing society; flexibility must be built into the theory.
To illustrate, take two distribution patterns: ‘A’ comprising four equal shares of the following values 4, 4, 4, 4, and ‘B’ comprising four unequal shares with the values of 5, 6, 7, 8. What considerations of dynamic justice are acceptable forjudging the legitimacy of these distribution patterns and how they came about? Rawls claims that a principle which serves to maximise the minimum share is preferable to absolute equality, since if we permit some inequality it may be the case that the worst-off person, albeit in an unequal distribution pattern, could in fact be better off than if all were in a situation of complete equality. In distribution pattern ‘B’ the person with the minimum share has five units, rather than four as in pattern ‘A’, while the overall unit for distribution is more than a third larger in pattern ‘B’ than in pattern ‘A’. Some inequality is acceptable because the dogmatic pursuit of equality may prove to be restrictive of the interests of the least well off.
Rawls is trying to balance the need for growth in wealth, with respect for the least well-off in the society. Whilst the general aim of utilitarian justice is to maximise social wealth, Rawls holds his basic principles of justice based also upon a deontological respect for autonomy as checks upon such maximisation. Even if greater social wealth is created, a system of inequality may be too extreme to be defended as socially just. What if the distribution pattern was actually 5, 600, 700, 800? At what point do we say that we can no longer accept the position of the 5 in relation to the others’ considerably greater goods? Is it in the 20s, 100s or 1000s? It may well be that one would prefer to live in the pattern where one only enjoyed the benefits of a 4 since there one enjoys equality, whereas in the other pattern, although one would benefit from a 5, the comparison with those who have greater shares could be too much to bear; we can be made unhappy with feelings of injustice.
In Rawls’s cake analogy those who help bake the cake can choose to enjoy free time (liberty) or to work on the cake. The cake will vary in size and quality according to how many ingredients are put into it, and the skill and hard work which goes into baking it. But people must have an incentive to provide ingredients and work hard and skilfully; the quality and size of the cake, therefore, will vary according to the level of incentives. So the degree of inequality allowed in a distribution pattern may affect the quantity and quality of the item(s) for distribution; but Rawls believes he provides principles for a dynamic, yet socially just, growth pattern by giving absolute priority to liberty. No rational person will risk his liberty for the sake of a prosperity that only others may enjoy.
On the other hand there may be room for some scepticism. While most of the communitarian critics have focused upon Rawls’s views on the unity of the self, on the primacy of the right over the good, and the fact that this entails rejecting any thesis of the common good in the tradition of Aristotle, other, rights-orientated writers have charged that a latent utilitarianism creeps into Rawls’s theory in his subde movement towards maximisation; or pointed out that there is more than one possible decision procedure. Social realists have claimed that the only kind of agreements that we ought to be concerned with are the actual historical struggles that have been engaged in; although in an actual social agreement individuals may well be bound, Rawls takes us into hypothetical agreement. But what sort of hypothetical rights does society enforce? There may be several.19 Moreover, alternative thought experiments are imaginable which lead to radically different conceptions of the role of government in a just society’. Moreover, Rawls provides the principles of justice of the rational pessimist, but what of the gambler? Why should not someone behind the veil of ignorance simply say ‘I’ll vote for a society with great inequalities because I believe I stand a good chance of being one of the winners’?
while Rawls’s theory may justify social redistribution (it amounts to a defence of the modern liberal-democratic welfare state), for another group of liberals – whom we can call libertarians – big government is incompatible with liberty. Libertarians share a profound distaste for all theories which promote any idea of a social good which legitimates centralised social administration – even if this is the rather individualist conception of classical utilitarianism – and the aim is to abolish all governmental interference with the lives and ‘rights’ of the citizen. Libertarianism largely founds itself upon a reading of the classical social contract theorist John Locke, who is seen as holding a central thesis that in a state of nature mankind is possessed of inviolable individual rights and has supreme right to take possession of any goods which others do not own. Once seized of these goods, they become their property. The role of government is to protect those rights – particularly the rights to life and property – and social administration is only legitimated insofar as it reinforces and protects those rights and is never legitimated in overriding them. Society is conceived only as the space wherein individuals pursue their own projects, free from interference and respecting the rights of others. The political jurisprudence of Robert Nozick, characterised by his book Anarchy State and Utopia (1974), is the best known of the libertarian theories of justice.20 Nozick begins from the dual premise that all persons are naturally individuals possessed of right,21 and that all governments, and all social organisations, need justification:
the fundamental question of political philosophy, one that precedes questions about how the state should be organised, is whether there should be any state at all. Why not have anarchy? (1974: 4)
To begin with this basic premise sounds strange to the European reader, but in the American context it represents an understandable, if extreme, beginning. While European writings are unable to look back to the existence of any actual history of their own which resembles the Lockean narrative, the founding and development of the United States is often interpreted as the living embodiment of the Lockean narrative.22
Nozick’s writings develop a theory of justice which reinforces a radical free-market approach and fits a so-called minimal or nightwatchman state. It is no surprise that he concludes:
The minimal state is the most extensive state that can be justified. Any state more extensive violates people’s rights (1974: 149).
Nozick defines his reference to the minimal state as ‘the nightwatchman state of classical liberal theory, limited to the functions of protecting all its citizens against violence, theft, fraud and the enforcement of contracts and so on’ (ibid: 26–7). How does he explain this as the only level of social organisation defensible?
Anarchy, State and Utopia is subdivided into three parts. Its structure is loaded in favour of minimalism. Part One purports to confront the anarchist who denies the legitimacy of any form of state, asserting that any state is ‘intrinsically immoral’ (ibid: 51). In response to this ‘challenge’, Nozick undertakes a thought experiment in which he traces the detailed evolution of the minimal state in which neither its emergence, nor its continued existence, infringes rights. Part Two examines the notion of the minimal state, and specifies that a more extensive state will violate rights and thus be unjustified. Nozick develops an ‘entitlement theory of justice’, whereby economic goods arise in society already encumbered with rightful claims to their ownership, which in turn discredits ‘patterned’ forms of distribution (ibid: 155–164). In Part Three Nozick presents his Utopia, which enables him to argue that the minimal state is worth defending.
The opening chapter of Part One is entitled Why State of Nature Theory, and outlines a thought experiment which begins by imagining life without a state. Nozick does not, however, present us with a horrible state of nature such as Hobbes has done, since clearly if he were to make the state of nature as bad as Hobbes envisaged, then we would be likely to accept any state as providing a solution to the problem. Conversely, Nozick argues that we should imagine a benign state of nature; his father figure is Locke not Hobbes. However, in this situation, the question may arise whether we really need to invent a state? We would need very good reasons to justify it. Nozick constructs a theoretical argument with several steps.
Step one: Individuals are placed in a state of nature, but – as with Locke’s narrative -these individuals are possessed of rights. Nozick argues that there are two ways of thinking about rights. In one conception we accept that rights will conflict, or that we need to balance rights with other social goals. Ultimately, Nozick suggests, this leads into a utilitarianism concerning rights; we begin to wonder about either sacrificing or reducing rights or alternatively maximising the protection of rights. As Nozick puts it: ‘… suppose some conditions about minimising the total (weighted) amount of violations of rights are built in the desired end state to be achieved. We would then have something like a ‘utilitarianism’ of rights: violations of rights (to be minimised) merely would replace the total happiness as the relevant end state in the utilitarian structure/ Even if we are aiming at a minimum rights violation we would still in certain conditions be willing to sacrifice an individual for the common good. In the second conception of rights, a ‘moral side constraints’ view of rights prevails (ibid: 28–35). We are never to violate these rights.23 – for Nozick, it is never permissible to override the interest of the individual for the sake of the others in society.24 In the thought experiment individuals possess these rights in a state of nature, but we are asked to imagine there was natural anarchy. This leads us to step two.
Step two: These individuals with rights form voluntary associations to defend their rights. These associations – ‘mutual protection agencies’ – are totally voluntary. Those who join receive protection and the others do not. As yet no state has been formed; there is no body that has legitimation for use of force over the whole area. Originally, therefore, the association has only those rights granted to it by other individuals. It is simply a collection of individuals in association.
Step three: The voluntary associations sort themselves out territorially. A ‘dominant protection association’ develops in each area. This is an inevitable consequence of the economics of protection and results in a logical requirement for protection services such as the courts and police, etc, to function within a certain territory.
Step four. In step three there are still some independents who have not joined any of the associations, thus the independents have the same rights to protect themselves as the associations. Step Four consists of these independents joining or becoming incorporated; we thereby arrive at a minimal state, a body capable of exercising a monopoly in the use of force within a particular territory and extend protection to all its citizens (ibid: 113). The minimal state is limited in its legitimation of force to the protection of certain basic rights: it is the nightwatchman state of classic liberalism. Under utilitarianism, or the later theory of Rawls, we could have redistribution policies; but no redistribution is legitimate in the minimal state. All that is paid for would be a basic protection service. There is no welfare state etc in Nozick’s theory. Some may call this classical capitalism. Nozick further claims the development of the minimal state is spontaneous, unplanned and unintended. It is portrayed as the result of natural history: ‘an invisible hand process and by morally permissible means, without anyone’s rights being violated’ (ibid: 119).
How do we move from step three to four? It looks impossible25 because the most basic assumption is that individual rights are so strong that they raise the question of what if anything a state could do; particularly if it never violates rights. Surely step four involves the violation of the rights of some members? Paying for protection must involve some redistribution of resources.26 The step also seems to involve some violation of rights of the independents, since now there is an authority which has power over them to which they have not agreed. The crucial rights lost are those of self-help and to interpret and be the final arbiter of when one’s rights are violated (the right to take the law into one’s own hands and decide when justice is done). The state now becomes the final arbiter of when violence is to be used. The state alone sanctions the legitimate use of force.27
In Part Two Nozick uses another set of arguments – which he terms an Entitlement Theory of Justice – to conclude that only the minimum state is justified. These are a set of arguments aimed specifically against redistribution of wealth. The entidement theory promotes the idea that an individual has an intrinsic right to whatever he holds, provided that the way in which he came to hold each part of his property was justified. There are three ways in which a person is entitled to hold his possessions justly: justice in acquisition – this means that the property when acquired was not the property of someone else (eg a natural resource); justice in transfer – this is where the property is transferred to the present holder by valid means. These includes gift, sale, inheritance – the only stipulation being that there has been no fraud or theft involved. When there has been a failure to observe one of the above methods of entitlement by the present holder of the property, then the injustice should be rectified, and A should restore the property to B. This is termed justice in rectification.
Thus Nozick’s argument is quasi-historical: ‘A distribution is just if it arises from a prior just distribution by legitimate means’ {ibid: 151). Nozick then launches into a series of arguments which attack rival proposals, such as those underlying distribution structures which are informed by arguments from the theories of utilitarianism (such as the maximisation of social welfare), or those which stress the desirability of equality. Nozick argues that underlying conceptions of (re)distributive justice are sets of principles which conflict with the primacy of liberty, and an absolute respect for rights.
A famous illustration Nozick provides is the Wilt Chamberlain argument. Nozick asks us to imagine a stable set of distributions we consider just. We are to call this distribution D1. Perhaps everyone has an equal share, perhaps people have a share in accordance with a particular distribution curve; the specifics do not matter, what matters is that we do not object to that particular distribution pattern. Imagine in that society there is a brilliant 7′1″ basketball player, Wilt Chamberlain, extremely sought after by basketball teams, having tremendous draw power with the fans; people love to see him play and they are willing to pay more when he plays. Let us suppose his contract says for every home game, 25 cents from the price of each ticket goes directly to Wilt, or that during the season at home matches, each spectator drops 25 cents into a separate box with Chamberlain’s name on it. They are all excited about seeing him play and consider they get value for money. Nozick asks us to suppose that in one year a million people pay to see him play; Wilt receives $250,000 more than other team players and naturally this sum is very much larger than the average income in the society. Is Wilt entided to this income? At the end of the year we have a new distribution D2„ with Wilt having much more resources than anyone else. Is this distribution unjust? If so, why? By way of an answer, Nozick asks us to consider how D1 became D2. It was clearly achieved by people exercising their rights under D1. The individuals exercised their liberty and gave money to purchase what they wished; they freely chose to transfer a portion of their money to Wilt in order to enjoy watching him exercise his skills. Nozick does not claim that D2 is better than D1, merely that D2 is as just as D1. D2 is simply a position which arises as a result of individuals exercising the rights they possessed under D1, without harming anyone else. Therefore D2 is as just’ as D1; but, if so, the accepted pattern of distribution which characterises D1 is broken. The operation of liberty has upset the settled pattern.
Nozick suggests that this will be the fate of all systems which are structured in terms of policies and patterns; such conceptions of justice are doomed to be unworkable. Instead we are asked to agree to a dynamic system which places primacy on rights which are not to be violated. For Nozick the fundamental principle of this ‘historical entidement theory’ of justice is that ‘whatever arises from a just situation by just steps is itselfjust’ (1974: 151).
But what of coercion? Even the rightful exercise of rights by people can actually lead to very coercive outcomes and situations. Moreover, the Wilt Chamberlain argument is a very particular argument; in fact the market does not always work this way. Today the market is an all-embracing environment and in the main people experience the market in a different way to Nozick’s arguments; they cannot simply take it or leave it when offered work, and there is a reliance upon certain goods. The market can be coercive, rather than freedom maximising.
Nozick (1974: 262–265) provides another example of what he considers freedom maximising to be. In this example he responds specifically to the idea of the coercive market, and the Marxist style argument that people are forced to work in order to survive. Nozick begins by agreeing that: ‘other people’s actions place limits on one’s available opportunity’; but he goes on ‘… whether this makes one’s resulting action non-voluntary depends on whether these others had a right to act as they did … ‘He proposes a sort of desert island example: there are 26 women (A-Z) and 26 men (A1-Z1) each wanting to be married. In this relatively simple society there is no disagreement as to the comparative attractiveness of each to each other. The order of attractiveness goes from A-Z in decreasing preferential order. A and Al voluntarily choose to get married, each preferring the other to any other partner. Now although B would have preferred to marry A1, and B1 would prefer to marry A, the actions of A and Al have destroyed this option. Since B and B1 also wish to marry, they therefore choose each other as representing the most preferable option out of what is left. Now although the options of B and B1 have been reduced, their rights have not been interfered with through the exercise by A and Al of their liberty; thus B and B1 have not been coerced into their choice. Of course options become more and more limited down the line, but, Nozick says, even when one goes through X and Y, and accepts that by the time one comes to Z and Z1 and they are left with only each other or nothing, coercion is not involved. Both Z and Z1 admit that if they want to be married they must marry the least attractive person of the opposite group. The question is fundamental: have they been coerced if they marry each other rather than nobody?
Nozick claims that similar considerations apply to market exchanges between workers and the owners of capital. If one said that the employees were graded A-Z and the employers A1-Z1 can we consider the combination Z-Z1 as voluntary? Are there any legitimate grounds for Z or Z1 to complain? Perhaps Z is faced with the choice of working for Z1 or starving; and since the choice is a result of the actions of all the others which do not provide Z with any other option – does Z therefore choose to work voluntarily? For Nozick ‘Z does choose voluntarily if the other individuals A-Y each acted voluntarily and within their rights’.
Both the marriage example and the entitlement of property fall, for Nozick, under the adage ‘from each as they choose to each as they are chosen’; it is not something that redistribution policy should interfere with.
Whether, however, in the employment example, people voluntarily and freely choose, is surely a more complicated question; the marriage example is not an exactly analogous situation. Some might argue that people have a social right to a job although, perhaps, not a distinct social right to marry. Does that make the situation of Z coercive?
In Nozick’s scheme the claim to just distribution depends on individuals having strong rights to ownership of their property, but how can we be sure of the historical validity of their claims? Nozick acknowledges that the issue of past injustices raises severe problems.
If past injustice has shaped present holding in various ways, some identifiable and some not, what now, if anything, is to be done to rectify these injustices? How, if at all, do things change if the beneficiaries and those made worse off are not the direct parties in the act of injustice, but, for example, their descendants? How far back must one go in wiping clean the historical slate of injustices?
Having raised the issue Nozick can only conclude ‘I do not know of a thorough or theoretically sophisticated treatment of such issues’. Ironically, as Bernard Williams points out, Nozick’s theory may offer a substantial challenge to contemporary capitalism since
Nozick’s derivation theory does not imply that contemporary property holdings are just; on the contrary (though it is a matter of removable fact), it is 99% probable that almost all of them are not. (Mr Nozick may think that much of America rightfully belongs to the Indians) (In Paul, 1981:27).
How can entidement therefore be guaranteed historically? Given the infinite possibilities for injustices to have occurred historically, and the theoretical and practical impossibility of identifying and rectifying them, any attempt to put Nozick’s theory into practice to justify present holdings as safe from interference is either historically arbitrary or self-contradictory.28
Thus, while Nozick’s argument that any state more extensive than a minimal state must – absolutely must – violate people’s rights is, on the terms of Nozick’s logical structure, true, it also follows that in Nozick’s scheme it is impossible to establish what the rights of any one individual actually are in regard to property. The theory appeals to our individualist intuitions but cannot protect itself against its own attempts to be an historically or sociologically true account of the primacy of the minimal state or the free market.29
Libertarians look back to the writings of Locke and follow him in constructing a hypothetical model of the state of nature to find a mechanism of judgment which will legitimate the justice of social arrangements while preserving the primacy of liberty. Locke’s writings enable them to seize on a tradition of a narrative of natural history in which there exists a psychology positing economic motives as primary (the idea of possessive individualism). Thus the narrative history is viewed as timeless and the psychology as natural. But Locke wrote a ‘narrative natural history’ – in which individuals existed who were possessed of inviolable natural rights – to escape from a real history in which the majority did not possess rights. Locke espoused natural rights to repudiate the reality of feudalism; while he postulated the primacy of economic motives in order to fight all the other motives for human passion (in a sense to assert that economic motivation pacifies and rationalises the instability of human passion, expressed in religions and historical prejudice). Locke stands – with Hobbes, Hume and Adam Smith – at the beginnings of the modern period which has seen the spread of the market throughout the world. As libertarians are keen to point out, the market is the only mechanism which does not consider the colour of your skin, religion, or aesthetic taste, in ways other than as selling opportunities. The social ironies of the measures they espouse – for example, that the state, in acting impartially to guarantee individual rights, ends up serving the interests of those particular classes with dominant market position -is lost because libertarians have an undeveloped feel for the reality of politics. Their political reality is rather a philosophical reality resembling one or other mythical state of nature. Philosophical liberals appear naive to critics who adopt a more sociologically informed perspective and who see both our contemporary intuitions and our social institutions as the result of a complicated set of historical, political and sociological processes. Ultimately, right-orientated philosophy is called upon to face one unanswerable problem: are not human rights and so-called ‘natural rights’ only natural to the extent that we use the word natural to describe the social processes which have allowed rights to be created and become entrenched in social structures? Rights are socially created, they were not discovered in history – as if they somehow existed in some timeless realm (of Platonic natural essences) – they were created in history. Similarly, the individual.30
The libertarian interpretation of the origin of the United States as an enactment of the Lockean rationalist defence of individualism and natural rights to property has been questioned by a range of recent studies which discerned a strong civic republican trend in the revolutionary period. Only with the advent of the federal constitution did the idea of public virtue and of the common good lose their central roles to a new concept of public opinion.31 Government became a political compromise between interests whose existence was external to the political action itself.
Although this new ‘liberal’ conception became dominant during the 19th century, the republican conception never completely disappeared. Pocock asserts that it became somewhat subterranean, operating through upholding pre-modern and anti-industrial symbols in American culture. Many authors who criticise liberal individualism appeal to this tradition, affirming that this subtle influence of civic republicanism enabled Americans to retain a certain sense of community, and provided inherent resistance to the corrosive effects of individualism. They see the solution to the crisis that American society is going through today – a crisis that consists, according to them, in the destruction of social bonds due to the liberal promotion of self-interested individuals (who only know how to look after their own immediate concerns) and who reject obligations that shackle their freedom – in the revitalisation of this tradition of civic republicanism. Whereas the neo-conservatives see in the democratic idea the origin of the difficulties of liberal democracy – namely big government – ‘communitarians’ identify the real problem as a disappearance of civic virtue and denial of the need of the populace for identification with a political community which recognises that citizenship not only implies rights but also duties and social interdependency.
The ascendancy of rights over collective participation is further accentuated by recent processes of increasing privatisation of social life and disappearance of public space; for communitarians this can only be remedied by restoring political participation. In their eyes, the liberal illusion that harmony could be born out of the free play of private interests, and that modern society no longer needs civic virtue, has finally shown itself to be dangerous; it brings into question the very existence of the democratic process, and the meaning of society. From whence comes the necessity for a new political culture which reconnects with the tradition of civic republicanism and restores dignity to politics.
Michael Sandel (1982, Liberalism and the Limits of Justice) claims that Rawls posits an inconsistent treatment of the self. Although Rawls acknowledges the intersubjectivity of the self, he needs a conception of a rational and unified self to found his thesis of the priority of the right over the good. Moreover, Rawls’s deontological liberalism requires a conception of justice which does not presuppose any particular conception of the good, to serve as the framework within which different conceptions of the good become possible. The primacy of justice is both a moral priority and a privileged form of justification. The right is seen as prior to the good not only because its demands have natural precedence, but also because its principles are produced in a non-consequential manner as rationally derived in the conditions of the original position. But for us actually to agree that we can accept the outcome, ie the principles of justice derived from the calculations of the original position, it is necessary to accept that the subject (the rational decision-making self) exists independently of his/her intentions and his/her ends. Rawls requires the acceptance of a subject who can have an identity defined prior to the values and objectives that he/she may choose. It is, in effect, the capacity to choose, not the choices made, that defines such a subject. This subject can never have ends which are constitutive of his identity, and is denied the possibility of participation in a community where it is the very definition of who he is that is in question.
According to Sandel, in Rawls’s problematic a ‘constitutive’ or expressive type of community such as this is unthinkable; but this means that Rawls is limited to an ideology of ‘community’ as co-operation between individuals whose interests are already given, and who join together in order to defend and advance them. While, however, this unencumbered conception of the subject, incapable of constitutive and expressive engagements, seems within this context necessary so that the right can have priority over the good, it nonetheless appears in contradiction to the principles of justice which Rawls seeks to justify. Since the difference principle is in the nature of a principle of sharing, it presupposes both the existence of a moral bond between those who are going to distribute social goods, and therefore of a constitutive community whose recognition it requires. Moreover, Rawls accepts that an individual is hopelessly fragmented and only becomes human in social subjectivity, in the very type of community excluded by the Rawlsean conception of the subject without attachments, defined prior to the ends he chooses. Sandel argues that Rawls’s theory has an internal contradiction: ‘we cannot be persons for whom justice is primary and also be persons for whom the difference principle is a principle of justice.’
Sandel’s analysis is directed against the original text of The Theory of Justice in which Rawls seemed to be searching for some absolutely secure point of reference; in other words that his original position should be rationally unassailable. In that case it appears Sandel is correct in arguing that Rawls has not succeeded in guaranteeing that his theory is rationally secure; but this does not mean that we ought to reject Rawls’s theory as rationally appealing or the liberal politics which lie behind it.33 Perhaps Sandel is calling for liberalism to lose its sociological weakness and remember both the fact of its historical creation and the necessity to fight for its advantages while attempts are made to improve it.34
For Charles Taylor (1985: Vol 2, Ch 7) the liberal view of the subject is ‘atomist’ because it affirms the self-sufficient character of the individual. In contrast to the Aristotelian notion of man as fundamentally a political animal who can only realise his human nature within the bosom of a society, it impoverishes our ideas of ourselves and aids in the destruction of public life through the development of bureaucratic individualism. According to Taylor, only through participation in a community of language and mutual discourse concerning the just and unjust, the good and the bad, can a coherent rationality develop enabling man to operate as a moral subject capable of discovering the good; therefore there cannot be a priority of the right over the good. Referring particularly to Nozick, he shows the absurdity of starting from the priority of natural rights in order to deduce the entirety of the social context: Nozick ‘does not recognise that asserting rights itself involves acknowledging an obligation to belong’ (1985: Vol 2, 200). In effect, this modern individual, with his rights, is the result of a long and complex historical development and it is only in a certain type of society that the existence of such a free individual, capable of choosing his own objectives, is possible. For Taylor, we need to understand our communal existence, because the essence of the problem of being human is not the question of material survival, ‘desire-fulfilment, and freedom and pain’, but rather the struggle to become a fully developed human; something which our words may fail fully to articulate, but our dreams presage (ibid: 201–2). Again the core charge against liberal philosophy – exemplified by Nozick – is of ignorance of actual history and social achievement, the treating as natural that which in reality is a tenuous socio-human creation, and, as a consequence, weakening our political imperative to participate in the building of modernity:
We owe our identity as free men to our civilisation … The crucial point is this: since the free individual can only maintain his identity within a society/culture of a certain kind, he has to be concerned about the shape of this society/culture as a whole. He cannot … be concerned purely with his individual choices and the associations formed from such choices to the neglect of the matrix in which such choices can be open or closed, rich or meagre. It is important to him that certain activities and institutions flourish in society. It is even of importance to him what the moral tone of the whole society is … because freedom and individual diversity can only flourish in a society where there is a general recognition of their worth (ibid: 207).
For Alasdair MacIntyre (After Virtue, 1981, 2nd edn 1984; Whose Justice, Which Rationality?, 1988), Rawls and Nozick both ignore what should be fundamental to justice, namely the idea of virtue. MacIntyre argues that modernity has dislocated the language of morality; in effect we are surrounded by discourses of morality but all sense of coherence has vanished as the quest for the big picture has been abandoned in favour of analysis. MacIntyre plays off modernity, in the guise of individualism and subjectivity as espoused by Nietzsche, against his rereading of the classical tradition of Aristode. For MacIntyre moral language only makes sense within a systematic exposition of the totality of human concerns. Our modern morality has become mere emotivism, expressions of subjective preferences. Moral theories have become apologies for individualism and subjective desire. This has occurred in part because modern theories can only conceive of society as if it were made up of individuals whose interests are defined prior to and independent of the construction of any moral or social bond between them. Conversely, the ancient Greeks placed great emphasis upon the notion of virtue and the character of the person, but virtue only makes sense in the context of a community whose original bond is a shared understanding of both the good of man and the good of the community and where the individuals recognise their fundamental interests with reference to these goods. However, the dominant philosophical tradition of modernity – liberalism – rejects all ideas of a common good other than the mere aggregation of the desires of those individuals who are deemed to comprise the (non-)society. This individualism – epitomised by Nietzsche’s radical subjectivity – is to be regarded as the source of the nihilism that is slowly destroying our societies.
In After Virtue, MacIntyre (1984) identifies virtues by reference to their role in practices, rather than the historical scholastic method which looked for the correspondence of the act to substantive requirements of the nature of human beings. MacIntyre attempts to return to the virtue-based ethics of Aristotle but without accepting Aristode’s ‘metaphysical biology’, or agreeing with any substantive theory of human nature (ontology). He neither accepts nor disagrees with the Aristotelian philosophy of nature. Instead, MacIntyre defines virtue in a relatively formal manner:
A virtue is an acquired human quality the possession and exercise of which tends to enable us to achieve those goods which are internal to practices and the lack of which effectively prevents us from achieving any such goods (1984: 193–4).
Furthermore, he sees practices as relatively dynamic phenomena which do not have fixed goals for all time. Practices are sustained by relatively specific activities (methodologies), but the goals these activities strive for change over history, as may the criteria for judging the quality of the practice. Both technical skills and institutional settings may shape the historicity of practices. But does this mean that we can be virtuous simply by becoming good as expressed by the internal requirements for any practice? MacIntyre claims that before we can call an activity virtuous, it must also accord with a ‘telos which transcends the limited goods of practices by constituting the good of a whole human life’. We need an overall grasp of the human condition, since as long as the excellences internal to practices are taken in isolation, an account of the virtues might of necessity be either socially arbitrary, or internal to a practice which we find abhorrent.
The problem of MacIntyre’s communitarian account is that it appears circular. Moral qualities are defined by their ability to serve practices, practices in turn serve institutional goals, which in their turn may serve the needs of a society arbitrarily. We need a standard distinct from the social arrangements of the community which can assess the quality of needs. Is there any way of judging the specific value of different practices? MacIntyre resorts to the idea of traditions. Virtues must be integrated into the overall patterns of a tradition informed by a quest for the good and the best. Thus virtue is not just a problem for the individual; the conception of virtue requires a tradition that has accumulated some experience about goods internal to practices.
Which sorts of human dispositions, activities and, correlatively, institutions and skills, befit human nature? MacIntyre’s answer is those which befit the telos or quest, and which are consonant with the tradition of the persons making such an enquiry. We save ourselves for the terrors of moral indeterminacy and nihilism by positioning ourselves within a tradition. The tradition gives us existential belonging and enables us to live the moral life of virtue.
Are all traditions equally worthwhile? The structure MacIntyre proposes offers coherence and a life of meaning; but it appears relativist. We can certainly engage in historical description and report what it meant to live in the Indian caste system and how this conferred a working sense of virtue and justice, but many of us would wish to say more. We would normatively state that a life of virtue within that structure was actually unjust. It did not agree with ideas we hold central to our ideas of human flourishing. Can the coherence of MacIntyre’s system be retained, while at the same time we introduce or defend a normative account of what the telos of a whole life is? Critics of MacIntyre believe he has little chance of resolving this issue.
Alan Gewirth, writing as a neo-Kantian,35 argues that MacIntyre’s virtue theory is relativist. It cannot provide a rational foundation to judge which types of actions satisfy or violate a specifically moral rule.36 MacIntyre’s structure lacks substantive content, and thus we are unable to judge between traditions with mutually opposed substantive accounts of virtuous actions. Where can he find a secure place to stand if MacIntyre rejects the metaphysics of nature which supported Aristode? Since judging virtue by its role in practices only give us ideas of internal coherence, MacIntyre must move to the second stage of the idea he proposes, namely that of the telos or quest of mankind, but again we could postulate any number of pictures of a unified end. What is the precise ‘good’ that anchors the quest such that we can judge the quality of Hitler or Stalin, for example? We can not accept defining ‘quest’ in terms of a virtue-like constancy or singleness of purpose, since all sorts of people in history that we usually consider evil displayed that quality. MacIntyre anchors his concepts in the idea of tradition, but there is no sure standard for adjudging whether the resources of a tradition lead to a genuine knowledge of the relevant goods. While MacIntyre asks Whose Justice, Which Rationality?, Gewirth asks:
But which community? Aristotle’s perfect community required the enslavement of farmers and mechanics; the Nazi community required the murder of Jews and others; the contemporary Afrikaner community requires the subjugation, economic and personal as well as political, of millions of blacks. For all his endorsement of a morality of laws, MacIntyre’s specification of their ‘point and purpose’, together with his unclear evaluation of moral universalism, leaves available such violations of basic rights, and hence a drastic moral indeterminacy (1985: 758–9).
Writing from the Kantian perspective, Gewirth states that the ‘conceptual resources [MacIntyre] deploys in making the virtues central to moral philosophy are inadequate substitutes for the more traditional view that derives the content of the virtues from moral rules about rights and duties’. If MacIntyre seems unable to convince the Kantian, neither does he seem to make much impression on the Nietzschean. MacIntyre sought to refute the emotive basis of moral claims, but appears to imply that belonging to a tradition gives greater weight to one’s moral speech.
Behind MacIntyre’s analysis is fear. Fear of existential loneliness and of Nietzsche’s legacy. Although After Virtue was not a treatise on the substantive principles of morality – rather, it concerned historical and cultural contexts of arguments about such principles – one is left with the impression that it is Nietzsche, and not Aristotle, who wins. At the end of the text all MacIntyre can call upon us to do is retreat into communities while the social order collapses around us – Blade Runner foreseen?
As Sandel has remarked, for liberals of the Kantian type such as Rawls, the priority of the right over the good means not only that one cannot sacrifice individual rights in the name of the general good, but also that principles of justice cannot be derived from a particular conception of the good life. This is a cardinal principle of liberalism, according to which there cannot be a sole conception of eudaemonia, of happiness, which is capable of being imposed on all, but that each person must have the possibility of discovering happiness as he understands it, to fix for himself his own proper objectives and to attempt to realise them in his own way.
The communitarians argue that one cannot define the right prior to the good, since it is only through our participation in a community which defines the good that we can have a sense of what the right is and attain a living conception of justice. Outside of community there is no good and no right. This is a highly persuasive argument which appears unanswerable from any perspective other than one which keeps an idea of a transcendental signifier (a God, or a metaphysics of the absolute essence of humanity). But accepting this argument does not entail that we must reject the priority of justice as the principal virtue of social institutions as well as the defence of individual rights, or return to a politics based on a common moral order. Our foundation can be more pragmatic, or political, and it is exacdy to that position that Rawls has attempted to move.
Rawls is not quite as easy a target as the communitarians believe. Rawls (1985; 1993) has developed the foundations of his position rather substantially since the publication of A Theory of Justice. Originally his neo-Kantianism implied that Rawls was looking for an algorithm for rational choice, an Archimedean point guaranteeing the universal character of his theory of fairness. His problem was to determine which principles of justice free and rational persons would choose in order to define the fundamental terms of their association. Afterwards he declared that he only wanted to elaborate a conception of justice for modern democratic societies, by starting from the common intuitions of the members of these societies.37 His objective was to articulate and to make explicit the ideas and principles latent within our common sense; he therefore would not claim to have formulated a conception of justice that was ahistorically true, but rather proposed the principles that were valid for us, as a function of our history, our traditions, our aspirations and the way we conceive our identity.
Thus we need better modes of articulating the connections between the jurisprudential imagination concerning justice and political consequences. Rawls wants to defend the liberal pluralism that requires a conception of well-being and a particular plan of life not to be imposed upon individuals. Individual morality is for liberals a private question, and each person must be able to organise his life as he intends. This is a most valuable conception of aspects of the good life: the weakness of liberalism in this area stems from its apparent position that the importance of rights and the fact that the principles of justice should not be taken to privilege a particular conception of well-being. However, it is evident that this priority of the right over the good is only possible in a certain type of society with determinate institutions, and there cannot be an absolute priority of the right over the good since – as the communitarians reasonably assert – it is only within a specific community, defining itself by the good that it postulates, that an individual with his rights can exist. It appears necessary for liberals to specify that the search for justice is partly a question of actively working for, and intellectually defending, particular images of political community. As earlier argued (conclusion of our discussion of John Stuart Mill), although a liberal democratic regime must be agnostic in terms of personal morality and encourage pluralism and tolerance, this does not amount to being agnostic concerning the political good. Not only does this affirm the political principles of liberty and equality, but it is an argument for a certain form of existential survival. It is only within a political and social regime which values rights, diversity and personal fulfilment, that the priority of rights with respect to the different conceptions of the moral good is possible.38 Justice is not a philosophical conception, it is an existential goal.
1 Jurisprudence cannot escape considering justice since justice is – ideally – the master of law. But what if justice cannot be known? Justice appears an overburdened idea. Sometimes it is reduced to a question of technique: it is thereby posed as the problem of what will guide the techniques of constructing social order. At other times it appears as a problem of legitimacy, or put another way, as an answer to the question of what will provide a rational framework forjudging the adequacy of the regulation of human relations.
2 Kelsen states that the content of justice is not amenable to rational determination. As an example he gives the following scenario. Certain ethical convictions hold that human life is the highest value, thus, according to this view, it is forbidden to kill a human being, even in war or as a measure of atonement for a grave offence. There is, however, an opposing view that claims that the highest value is the interest and honour of the nation and everybody is obliged to sacrifice his own life and to kill other human beings in time of war, and it is justified in the collective interest to inflict capital punishment as a sanction for certain kinds of criminal conduct.
Kelsen argues it is impossible to decide this conflict regarding the justice of killing other human beings in a scientific way. Ultimately, it is our feelings, our emotions and our will, that produces a decision.
3 In his postscript (1969: 242) Fuller asserted that the philosophy of science had seen a reorientation ’marked by a shift of interest away from the conceptualisation and logical analysis of scientific verification and toward a study of the actual process by which scientific discoveries are made. Perhaps in time legal philosophers will cease to be preoccupied with building ”conceptual models” to represent legal phenomena, will give up their endless debates about definitions, and will turn instead to an analysis of the social processes that constitute the reality of law.’
4 As Fuller commented (1969: 141) concerning Hart’s discussion of the rule of recognition in Tite Concept of Laur. ’[Hart] is throughout attempting with the aid ofthat rule to give neat juristic answers to questions that are essentially questions of sociological fact’.
5 In Tlie Law in Quest of Itself (1940: 5) Fuller defined legal positivism as an extremely limited view of legalism: ’Its unavowed basis will usually be found to rest in a conviction that while one may significandy describe the law that is, nothing that transcends personal predilection can be said about the law that ought to be, Fuller is partially overstating the case. As we have seen, for the early legal positivists Bentham and Austin, law was to be an instrument of rational government. However, legal positivism sees law itself as an empty container which is provided with substantive content from out-… 5… side – by politics, morality – while having in its pure form no necessary political or moral substance. Fuller claimed Kelsen’s theory presented law as ’utterly indifferent to ethics’, and the legal scientist as forbidden from discussing the content of law (1940: 91). For Fuller, law is a moral social activity. He tries to redefine the actual origins of legal positivism; thus Hobbes used certain normative principles of ’natural law’, and specified the preservation of a minimum of peace and order as the fundamental purpose of legal order. Fuller claimed that the tradition of legal positivism came to forget the purposive justification of law inherent in Hobbes’s civil philosophy.
6 In Tlie Problems of Jurisprudence (1949), a collection of readings in legal philosophy Fuller published in a temporary edition, he argued that the legitimacy of the judicial adjudication stemmed from the specific moral force inhering to the decisions of an impartial tribunal. Certain conditions were required: for example, the judge should not act of his own initiative, but on the application of one or both of the disputants; the judge should decide the case solely on the basis of the evidence and arguments presented to him by the parties; each party to a dispute should be given ample opportunity to present his case. These requirements constitute an internal morality of adjudication.
7 Fuller specifies that by procedural ’we are concerned, not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be’ (1969: 97).
8 Fuller does not claim to get these eight interlocking principles from some secure point of reference, but rather states they are derived from established judicial practice, or the explicit provisions contained in conventional sources of law.
9 A common criticism of Fuller’s procedural natural law was posed in terms of a question: ’how many of the excellences did a legal system need to ignore for that ’system’ to cease to be a system?
10 To Finnis (1980) Fuller provides no non-procedural criteria for evaluating the purposive ends that could confer solid legitimacy upon the rule of law. Finnis agrees that law should be seen as a purposive activity, but goes on to assert that to understand these purposive aims we need to develop a naturalistic theory of morality which specifies the human goods and values which would be advanced through the rule of law. Thus, Finnis claims, the task that Fuller implicitly identifies but does not proceed with, is to bring the principles of the internal morality of law into some rationally coherent relationship with a fully developed ethical conception of human nature, and its essential goods and values.
11 John Rawls was born in Baltimore, USA, in 1921, and taught philosophy at Harvard University for more then 30 years. He has latterly exerted a tremendous impact upon political and jurisprudential arguments through a series of articles and in particular A Theory of Justice (Rawls, 1971). This book was quickly seized upon as a magisterial work developing a ‘new liberal paradigm’. This ‘deontological’ or ‘rights-based’ paradigm undercut the ascendancy of utilitarianism in Anglo-Saxon theories, and it is usually accepted that criticism of liberalism – both from the libertarian and anarchist right or the communitarians – must work through Rawls.
12 ‘It is a feature of human sociability that we are by ourselves but parts of what we might be. We must look to others to attain the excellences that we must leave aside, or lack altogether. The co Dective activity of society, the many associations and the public life of the largest community that regulates them, sustains our efforts and elicits our contribution. Yet the good attained from the common culture far exceeds our work in the sense that we cease to be mere fragments: that part of ourselves that we directly realise is joined to a wider and just arrangement the aims of which we affirm’ (1971: 529).
13 Presuppositions cannot be avoided, and the major presupposition of Rawls is that only a rights-based theory of justice that respects our desires for equal respect and rational acknowledgment fits with our liberal conceptions. Moreover, Rawls accepts (1971: 563) that a view of ‘the essential unity of the self is already given in the concept of right’. A presupposition of a rational and unified self is, therefore, the methodological foundation.
14 Another way of phrasing this is to say that justice is an inherently contestable concept. That inbuilt into the concept of justice is the impossibility of any one concept providing the end to the conversation as to what justice means.
15 We are to be persuaded that we would accept the principles underlying the operation of the Rawlsean just society ‘by philosophical reflection’, and the resulting well-designed society ‘comes as close as a society can to being a voluntary scheme’ (1971: 13).
16 Rawls is clear that ‘we need a conception that enables us to envision our objective from afar’ (1971: 22), but we cannot leave the cave of our traditions, our perspective is ‘not a perspective from a certain place beyond the world, nor the point of view of a transcendent being; rather it is a certain form of thought and feeling that rational persons can adopt within this world’ (ibid: 587).
17 ‘The aim of the original position is to set up a fair procedure so that any principles agreed to will be just. The aim is to use the notion of pure procedural justice as a basis of theory’ (1971: 136). The epistemological aim is also to preserve the advantages of the Kantian idea of the separateness and autonomy of the rational person, but avoid the unworldliness of Kant’s metaphysics. Rawls’s theory is not meant to be proved in some formal rational manner, but appeal to us as a methodology and a principle of deliberation which respects our empirical desire to attain justice while treating each other as free and equal. Thus Rawls would be appealing to central values of our democratic traditions: liberty and equality – and provide a way for rationally inscribing them into a flexible account of justice.
18 ‘Thus there follows the very important consequence that the parties have no basis for bargaining in the usual sense. No one knows his situation in society nor his natural assets, and therefore no one is in a position to tailor principles to his advantage …
The veil of ignorance makes possible a unanimous choice of a particular conception of justice. Without these limitation on knowledge the bargaining problem of the original position would be hopelessly complicated’ (1971: 137–40).
19 For Ronald Dworkin (1977) the original position only gave rise to hypothetical decisions and it is illogical to make a theory of justice which is meant to legitimate real decisions based on such a procedure. Instead of asking what it is rational to do or refrain from doing in the hypothetical situation, we need to interpret the actual social contracts we are committed to – for example the American Constitution. Rawls would say that by considering rational examples, for instance of the cake cutter, we can understand the moral force of equal distribution. People can understand this decision without actually creating a cake and sharing it. The fact of the hypothetical nature of the argument does not destroy the force of the argument, and just as the cake example can work as a moral argument, so too can the notion of the hypothetical original position.
20 His essay has been described as ‘extolling die virtues of 18th-century individualism and 19th-century laissez-faire capitalism’ (J Paul, ed, Reading Nozick 1981: 1), an ‘original, remarkable and strikingly intelligent’ piece of writing (ibid: 28), while Lloyd and Freeman called it one of the most ‘provocative essays in political philosophy to have appeared in a long time’ (6th edn, 1995: 367). More soberly it was regarded as ‘highly theoretical in character, with the virtues of formal elegance as opposed to concrete realism’ (Paul, ed, 1981: 35).
21 ‘Individuals have rights, and there are things no person or group may do to them (without violating their rights)’ (1974: ix). Nozick offers no sociological or other explanation of how the emphasis upon individualism or rights has come about, instead his basis is merely to appeal to our intuitions about treating people as ‘ends in themselves’ and ‘treating us with respect by respecting our rights’ (ibid: 334).
22 As Stephen Newman (1984:16) puts it in a book aptly entitled Liberalism at Wits’ End. the Libertarian Revolt against the Modem State: ‘the United States is the premier Lockean polity. Its founding was virtually an acting out of the principles of Locke’s Second Treatise of Government, and for almost 100 years the nation seemed a near-perfect model of what Locke meant by civil society. Government was instituted to protect life and property. Authority was purposefully limited and made subject to multiple restraints in order to safeguard the liberty of the people. Fortunate material circumstances, notably an abundant supply of free land, allowed equal opportunity and virtual autonomy for (almost) all (not, of course, for blacks, Indians, or women). Free-market capitalism, nurtured by the state, served the interests of rich and poor alike by opening the avenue of success to ambition and talent.’ At least that is the political narrative cherished by modern libertarians.
23 ‘Side constraints upon action reflect the underlying Kantian principle that individuals are ends and not merely means … Side constraints express the inviolability of other persons.’ (1974: 30) Again the foundation of this, Nozick claims, is our perception of our lives: ‘The moral side constraints upon what we may do, I claim, reflect the fact of our separate existences. They reflect the fact that no moral balancing act can take place among us; there is no moral outweighing of one of our lives by other so as to lead to a greater overall social good. There is no justified sacrifice of some of us for others’ (ibid: 33).
24 It has often been said that one of the possible problems with Rawls’s veil of ignorance is that of gambling. (An individual may prefer to gamble on being one of those who have benefited rather than one of the losing few.) Rawls does not seem able to handle the fact that albeit, perhaps, to gamble is irrational, it is also part of the human condition. Perhaps in the example of the patient in room 306 (cf Chapter 6 of this text) we would choose the utilitarian solution, gambling that we would be far more likely to be among the five, not the one. Only a theory of the absoluteness of rights, such as that of Nozick, would be guaranteed to save the patient in room 306, even though the others could save the five others.
25 Many critics have simply felt it to be a ‘hypothetical narrative … a bizarre departure from any common sense account’ (Bernard Williams, quoted in Paul, 1981: 5).
26 How can we judge? What cnteria are possible? Nozick offers none. Robert Holmes turns Nozick’s own arguments against him arguing that since no independent criterion is offered to assess the enforcement procedures of the dominant protective associations the ‘usurpation of all the powers of adjudication and enforcement cannot be justified’ (In Paul, 1981: 6).
27 It is for this reason that at first glance the move from protection associations to a minimal state appears too large. Hypothetically, since this is a thought experiment, Nozick might have solved the problem simply by saying that everybody would join the minimum state, but as this is an unlikely course he needed a more realistic narrative for his theory to gain credibility. Nozick proposes two problems for his own scheme: specifically, (i) it looks as though the members of the associations allow limited redistribution to the independents, and (ii) why do the independents join at all? Nozick replies it only looks like redistribution. For example if A owes B money and B steals goods from A’s home this could be compensation rather than stealing. It could look like either; we have to look at the reasons, not just the appearance. Nozick argues that it is a matter of compensation. The minimal state incorporates the independents but owes them something because they have lost their self-help right. It owes them protection services and compensation. So we can get to step four. Nozick thinks that people can actively and voluntarily consent to anything provided that there is no violation of the rights of others. So we can consent to giving up rights. One could sell oneself into slavery; so we can consent to a state. But the compensation argument is not simple consent, and we must ask ‘what is fair compensation?’ He discusses compensation in various ways, one of which is by difference curves, but Nozick thinks we can use this argument to get to a minimal state. Again the critics are not convinced: Robert Paul Wolff (in Paul, 1981: 7) argues a rational calculation of the harm suffered in violating the rights is not possible owing to the ‘fluidity and lack of structure’ of the state of nature.
28 This conclusion follows from the honesty of Nozick’s position. Nozick relies upon the Lockean principle of rightful initial acquisition, namely, that one must not make others worse off when acquiring a piece of unwanted material or natural resources, and claiming ownership. Kymlicka (1990) summarises Nozick as proposing a staged theory of property acquisition:
1 people own themselves;
2 the world is largely unowned;
3 you can acquire absolute property rights over a disproportionate share of the world, if you do not worsen the condition of others;
4 it is relatively easy to acquire absolute rights over a disproportionate share of the world; therefore
5 once private property has been appropriated, a free market in capital and labour is morally required. …
…Kymlicka argues that point 3 is too weak to give rise to point 4. In appropriating a piece of land you inevitably make others worse off in some respects, by denying them a share or a say in the use of that land, or, in time, with the others dispossessed, by dictating the terms under which they must work on the land; moreover, since there are a variety of types of appropriation patterns, by choosing that particular one when another may have made everybody better off
Kymlicka argues that Nozick’s theory cannot justify present property holdings, since historically force was used in almost all initial appropriation and thus all current titles are illegitimate. There is no moral ground why a government may not take and redistribute them, perhaps to make amends for past injustice. Nozick almost accepts this, even suggesting that a one-off redistribution according to Rawls’s difference principle may wipe the slate clean before his entidement theory comes into play.
29 Other libertarians, such as Rothbard (1982), are not as open as Nozick. Rothbard counters the unjust acquisition argument by stating that, if they are known, criminal owners should be dispossessed and their holdings returned to the just owners. If the just owners cannot be found, the goods simply become unowned and the first person to appropriate and utilise them acquires property rights. If the current owners are not actual criminals then there is no reason to dispossess them of the goods and even if the goods were originally acquired by theft or force – as in most colonial situations – the first owner is unlikely to exist, therefore the present owner can keep the property. Since virtually all original owners are long dead, nearly all current tide owners are just possessors of the goods, except for property actually stolen by the present owners.
30 As Charles Taylor (1985: 309) argues with respect to any theory which takes the atomistic view of the isolated individual as its basic unit: ‘The basic error of atomism in all its forms is that it fails to take account of the degree to which the free individual with his own goals and aspirations, whose just rewards it is trying to protect, is himself only possible within a certain kind of civilisation; that it took a long development of certain institutions and practices, of the rule of law, of rules of equal respect, of habits of common deliberation, of common association, of cultural development, and so on, to produce the modern individual.’
31 Historians, such as Bailyn (1967) and Wood (1969), have shown that the American revolution had been profoundly influenced by the culture of neo-Harringtonian civic humanism. Bailyn’s analysis of the pamphlets of the revolutionary period focuses in part upon the central place of the idea of ‘corruption’ in the political language of American patriots. The classical conception of politics, in which individuals actively participate in the republic, was only later displaced by a new paradigm of representative democracy. In Gordon Wood’s (1969) analysis the end of classical politics came with the federal constitution of 1787, wherein the people were no longer conceived as connected by a common identity of interests, but seen rather as ‘an agglomeration of hostile individuals coming together for their mutual benefit in the construction of a society’.
32 For a much greater analysis see Stephen Mulhall & Adam Smith (1992, 2nd edn, 1995) Liberals & Communitarians – essentially a ‘Rawls and his critics’ book on contrasting readings on justice.
33 Sandel wants to move from showing an internal contradiction in Rawls’s theory – given the strongest rational reading – to concluding we must therefore accept the superiority of a politics of the common good over a politics of defending rights. The fact that Rawls’s argument has internal contradictions, or antinomies, does not imply that his general objective must be rejected.
34 In his concluding paragraph Sandel (1982: 183) states that liberal justice is necessary for a society of ‘strangers, sometimes benevolent’, who ‘cannot know each other, or our ends, well enough to govern by the common good alone’. The ultimate aim is to transform the conditions of social existence so that liberal justice is replaced by community, until then liberalism requires a greater political self-consciousness.
Liberalism teaches respect for the distance of self and ends, and when this distance is lost, we are submerged in a circumstance that ceases to be ours. But by seeking to secure this distance too completely, liberalism undermines its own insight. By putting the self beyond the reach of politics, it makes human agency an article of faith rather than an object of continuing attention and concern, a premise of politics rather than its most precarious achievement. This misses the pathos of politics and also its most inspiring possibilities. It overlooks the danger that when politics goes badly, not only disappointments but also dislocation are likely to result. And it forgets the possibility that when politics goes well, we can know a good in common that we cannot know alone.
35 Gewirth (1985) is eager to identify himself with a tradition more deontological than Aristotelian which strives to build a natural law of rights to be publicly avowed and deployed in the political and legal arena.
36 ‘When the criterion for a quality’s being a virtue does not include the requirement that the virtue reflect or conform to moral rules, there is no assurance that the alleged virtue will be morally right or wrong (Gewirth, 1985: 752).
37 To ‘settle a fundamental disagreement over the just form of social institutions within a democratic society under modern conditions’ (Kantian Constructivism in Moral Theory’, Journal of Philosophy, Vol 77, no 9, September 1985: 225)
38 Thus while Sandel, for example, can criticise Rawls’s specific formulation for the defence of liberal political principles, Sandel courts dangerous consequences in claiming that this requires abandoning liberal pluralism as well as a politics based on rights, since such a priority is precisely what characterises a liberal democratic regime and allows debate to occur.