The children of the commandants in Nazi concentration camps were advised, when walking from building to building in the camp, to wear a plaque identifying themselves as belonging to the commandant. If they failed to do so, they would be at risk of being taken for a wandering child prisoner, getting scooped up at random by guards, and thrown into a gas chamber.
The plaque, we may say, located the children in that group for which predictable rights and liberties were secured, guaranteeing their safety. It also carried the implication that what was done to them would be regarded by the commandant as done to himself.
This shocking example illustrates vividly that there are two necessary tasks in political philosophy for a liberal regime. The first is to articulate what one might wish to call, “fair terms of cooperation among persons regarded as free and equal.” In the example, these might include, for instance, the principles assigning benefits and burdens in some fair manner among the Nazis running the camps, together with processes for handling and resolving complaints among members of this group.
A Rawlsian analysis might even be serviceable. Suppose the Nazis regarded one another as free and equal, in some basic sense, and wished to order their affairs in such a way as to reflect this understanding. It would have been open to such Nazis, obviously, to judge the principles governing their mutual association by whether these could be endorsed from the viewpoint of the Original Position.
But the second task of political philosophy is to say which beings are rightly regarded as free and equal persons. In the example, the prisoners should have been so regarded, but they were not. But on what basis should they have been so regarded?
Call the first, the formal, and the second the material task of political philosophy. The first is a matter of content, the second a matter of scope; the first a matter of correct articulation, the second a matter of correct correspondence or mapping.
Getting the formal task right looks something like giving a suitable exegesis in accordance with some standard of appropriateness, like making explicit the grammar governing a language, or formalizing axioms governing a branch of mathematics. But getting the material task right looks more like achieving the correct kind of correspondence, a proper match between formal structure and subjects of that structure, relative to some concept of pre-existing desert or merit.
Some basic observations:
First, of the two, the material task seems the more basic: no one ever thought the camps were better, by way of justice, to the extent that the government of the camps was fairer among the Nazis.
Second, the material task seems easier to skirt, without sensed contradiction: in the testimonies of Nazi war criminals, one sees few if any confessions of cognitive dissonance felt by the Nazis during the operation of the camps. The reason is that “principles governing persons conceived as free and equal persons” insofar as they are appealed to serve to constitute a distinct community. Abiding by the principles has an internal consistency, no matter how their scope is understood. (Compare the partition of a set by an equivalence relation in mathematics). Another reason is that anyone to whom the principles are not taken to extend ipso facto is regarded as having no standing to bring complaints. They as it were do not exist, in the political community.
Finally, if we step away from the particular example of the camps, and look at this sort of question more generally, throughout history, it looks as though errors in executing the material task are judged as the more egregious injustices: for example, slavery in the U.S. viewed retrospectively looks more egregious than inequitable pay and harsh working conditions for factory workers in the 1860s, as serious as that injustice was.
The doctrine of natural rights may be construed as an ingenious solution to both tasks at once. Consider the statement in the Declaration of Independence: “all men are created equal [and] are endowed by their Creator with certain unalienable Rights, … among these are Life, Liberty and the pursuit of Happiness.—… to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” The material task is solved once for all with the phrase, “all men,” that is, all human beings. It picks out a natural kind, and must pick out a natural kind, to purport to solve the task once for all. The formal task is solved insofar as a criterion is set down for the justice of laws: their general tendency must be to secure and promote, and they cannot violate—by any taking not justifiable by “due process of law”—the claims to life, liberty, and property which “all men” would enjoy as natural persons apart from political society.
Indeed, one can construe the doctrine of natural rights as holding that it is not possible to solve the one task without the other. Unless the subjects of principles of justice are marked out clearly, as it were in advance of legislative decision, and fixed by reference to a natural kind—which cannot be redefined by convention—then any ostensible securities in law guaranteed by legislation, are actually not secure, as claims of injustice could be nullified simply by deciding that someone belonged to a class to which principles of justice did not extend. The doctrine of natural rights insists that such a person would retain a claim to press complaints of justice simply in virtue of his status as a human being.
John Rawls in Theory of Justice (TJ) agreed that political philosophy must engage in both of these tasks. However, by Political Liberalism he had rejected the second task. That is why his political philosophy is not only not continuous with the public philosophy of the Founders, as David Schaeffer has so ably argued, but actually subversive of the American project, contrary to the suggestions of David Corey.
Rawls pursues the second task in a section in TJ on “the basis of equality.” Simply to affirm a principle of equality, Rawls says there, without also saying to whom it must belong, “is no guarantee of substantive equal treatment, since slave and caste systems (to mention extreme cases) may satisfy this conception”—concentration camps too, as we have seen. “Surely,” therefore, he says, “[the principle of equality] applies to creatures who belong to some class, but which one? We still need to identify a natural basis for equality so that this class can be identified.” It is safer to articulate a sufficient condition rather than toy with necessary conditions, he warns. Therefore, he concludes, the principle of equality should apply to any being who has merely the capacity for “moral personality,” which would be all human beings.
The principles of justice give his answer to the first task, all human beings is his answer to the second task of political of philosophy.
True, his treatment of the second task of political philosophy in TJ is somewhat minimalistic and grudging. And it is carried out solely at the level of opinions and conventions—what we would wish to say about animals, what result we would get if we held this or that, and so on. But at least Rawls sees that he must undertake the task.
Yet by his 1975 Presidential Address to the American Philosophical Association, “The Independence of Moral Theory,” he has already drifted far from those minimal commitments. In that address, he is worried that Derek Parfit’s recently published (1973) essay on persons could undermine the Kantianism of TJ. Recall that Rawls’ key argument against utilitarianism in TJ was that it ignored the distinctness of persons. But what if persons really were not distinct, as Parfit was so powerfully arguing? It wouldn’t be acceptable for moral and political theory to be hostage to questions about the reality of persons or not—or the reality of anything, for that matter. For the purposes of social cohesion over time, then, it needed to be independent of truth claims.
This view about independence reaches full bloom and becomes a theory about justification in political philosophy by the time of his Dewey lectures on “Kantian Constructivism in Moral Theory” (1980), the key idea of which is that any notion of correspondence with a prior reality must be rejected: “the essential agreement in judgments of justice arises not from the recognition of a prior and independent moral order,” Rawls insists, “but from everyone’s affirmation of the same authoritative social perspective.” In his system, for instance, who counts as a person (or a subject of justice), “is not regarded as a workable approximation to the moral facts: there are no such moral facts to which the principles adopted could approximate.”
I suspect it was not only Derek Parfit’s arguments but also Roe v Wade which scotched concerns about “the basis of equality” and turned “early Rawls” into “late Rawls.” People are correct when they say that the “late Rawls” believed that TJ was wrongly attached to philosophical doctrines, and that Political Liberalism attempts to engage in political philosophy without adherence to any “comprehensive conception.” But they take too limited a view of the philosophical doctrines which Rawls later rejected. These were not simply a lingering Kantianism, or the project of deriving results in political theory from theoretical economics, but also the correspondence theory of truth itself, the concept of merit (and desert), and the conviction that there was any prior reality to which one was allowed to appeal when thinking about justice. Rawls is famous for his high opinion of the Supreme Court, calling it even in 2005 the “exemplar” of so-called “public reason.” But wasn’t the Supreme Court’s presupposition in Roe, that the case should be decided without attempting to decide when life began, an outright rejection of the project of looking for a “basis of equality”? To Rawlsian eyes, surely, that august exemplar of public reason seemed to teach, by its example in Roe, that the search for a basis for human equality, in truths about us or in nature, was not simply unnecessary but in fact divisive and misguided.
In light of all this, what should we say about the legacy of John Rawls?
He cannot be accounted a political philosopher of the distinctly American construal of a free society, because he does not simply neglect but deliberately and directly spurns anything like an appeal to natural rights. Therefore, it is not possible to “supplement” or “remedy” Rawls’ philosophical position by attempting to “fill it out” with some doctrine of natural rights. It would be grossly mistaken to opine that he was “attempting to articulate such a view but in language amenable to contemporary society.”
And then one sees in Rawls the false consciousness about metaphysical commitments so often visible in contemporary “liberals.” The following is a Rawlsian position: to assert that the unborn human being enjoys the same claim to equality as a born human being must depend upon a “comprehensive conception,” but to assert that the unborn child does not enjoy the same claim to equality does not depend on any “comprehensive conception.” But this cannot be. A “comprehensive conception” presumably is doing work only when some obvious equivalence, or some obvious difference, is denied: but it is obvious that an unborn child immediately before birth enjoys all the same claims as one immediately after birth. Of course if “comprehensive conceptions” are at work in both positions, then a correct adjudication requires that we pick the true one.
Rawls turns from truth in moral and political theory, as we saw, in pursuit of stability in the political order, or so he thought: but how stable can a society be, in which it is prohibited, as an inherently unjust or illiberal impulse, to appeal to natural rights as standards, or even to show sympathy with our tradition, which plainly affirms natural rights and gives them this role?
Rawls’ political philosophy makes no appeal to truth: “in public reason, ideas of truth based on comprehensive doctrines are replaced by the idea of the politically reasonable.” “The search for reasonable grounds of agreement rooted in our conception of ourselves replaces the search for moral truth interpreted as fixed by a prior and independent order of objects and relations, whether natural or divine.” Rawls says such things repeatedly, but it seems hardly anyone grasps the point. What is Rawls’ legacy? What is the condition of a society which, following his lead, rejects truth as a criterion?
Perhaps: a society divided into hostile groups, because we cannot find a basis for unity in human nature; a society where, increasingly, truth is deliberately hidden and controlled, by elites who find certain results most acceptable and fair; a society where to say that males are males and females are females is regarded as aggressively unjust; a society where the right to religious liberty seems increasingly unintelligible; a society which seems ready to forfeit the natural right to liberty and accept, instead, that it is more “reasonable” if citizens first get permission of their rulers to move about; a society in which everyone does what they know is false but they do so anyway because they wish to be regarded as “reasonable;” a society in which cowardice flourishes under cover of “reasonability.”
What if it’s the case that either we together aim to find the whole truth and express it as best we can in public life, or we lose any basis for free cooperation as equals at all?