Anyone who hasn’t read the first blog in this series (Rawls 1: The Original Position and Veil of Ignorance), probably should do so before reading this week’s blog. For those that don’t want to go to the trouble, last week we looked at Rawls’ version of contract theory, which depends upon a completely ahistorical and hypothetical “original state” and a “veil of ignorance” that prevents any member of society from understanding their relative advantages or disadvantages. I analyzed his views from a number of angles, but basically critiqued his disregard for human history and cultural development as it has actually unfolded in history. Rawls is a typical Enlightenment thinker—overly confident of the power of human reason to abstractly structure human society. It is telling that he begins his analysis with the fantasy of an original state where one can make decisions, ultimate decisions without experience.

The modern Enlightenment world was created under the inspiration of the worldview that began with Isaac Newton. The world was fundamentally a machine made up of material parts held together by forces. In this view, governments were fundamentally instruments of social power that were to be led by those with the ability and willingness to embrace the science of politics. Under the influence of this idea of reality, the modern bureaucratic state emerged. Sitting at the bottom of all this was the assumption that people are rational, that a rational political arrangement satisfactory to all participants in society and be formed, and that the operation of liberal democratic politics will eventually be shown to be the final form of human government. Rawls sits squarely at the center of this movement.

With the coming of relativity theory and quantum physics, the picture of the world that dominated Western civilization over three centuries was shown to be limited. Both indicate the deep interrelationship of all reality.  Instead of the world being something like a machine, it is more like an organism with delicately interconnected parts. The world is also like a process, with each state of the world, including the political world, impacted by prior decisions made down to the fundamental level of reality and society.  Importantly, the notion that human reason can “stand outside” of reality (in an original state) and comprehend it without experience (the veil of ignorance), personal involvement, and change is a false picture of reality. There is no disinterested observer, not even Harvard professors, who can view any form of reality in this way. This insight is important in understanding the problems with the ideas of thinkers like Rawls.

Institutions and Justice

Rawls begins his analysis with a premise that the principles of social justice require an assignment of rights and duties among various institutions of society and the appropriate distribution of the benefits and burdens of social life. [1]By the term “institutions of society,” he means a system of rules that define the structure of society and the relative duties, powers, offices, and positions of the persons and structures that make up a society. [2]

The reason I outlined the fundamental principles of post-Newtonian physics in the introduction should be apparent: Human society, for Rawls, is like a gigantic machine, not an organism. The machine is programmed and operates by rules established by its members (or elites in control of the society), and such rational structures establish all the rights enjoyed by the members of such a society. According to this vision, human beings, in the original position assisted by the veil of ignorance, can rationally (i.e. without prejudice or self-seeking) understand and establish a just society.

Compare Rawls’s view with the organic view that underlies this series of blogs. There was and is no “original position, “state of nature,” or “state of ignorance.” Human government almost certainly gradually evolved from the human family. The original polity was a family, nuclear and extended, that joined together to survive the inevitable threats and challenges of human life. The men hunted, and the women cared for the home and children. In such a society, political power devolved upon those with the strength and wisdom to sustain the family. As time went by, the groupings would have gotten larger and larger until genetic connections within tribes became relatively unimportant. Eventually, what we call “nation-states” evolved.

Over time (millennia), the structures that characterize Western society slowly evolved. The evolution involved the decisions of multitudes of people seeking their interests, the interests of their family, social groups, and society. Some of those people were only motivated by their own self-interest. Others were motivated by faith, morals, or political vision. No participant had an “eagle eye” view of reality from above. The entire evolution of human society and political economy is a long process, only a portion of which involves human reason.

What Rawls calls “rules and institutions” evolved over this period of time, with human reason being only one factor in the gradual and precarious evolution of Western Democracy and all the various structures of human political relations we see today. In making the choices that made our society possible, people drew upon a long history and tradition, what is sometimes called the Judea-Christian and Greco-Roman foundations of Western society. In particular, the evolution of contract theory was heavily influenced by the Judeo-Christian tradition and the notion of “Covenants” that play a role in each of those traditions. [3] There was never a “choice,” a state of nature,” an “original position,” or a “state of ignorance.” In my view, it is not helpful to attempt to ground concrete institutions on a kind of fantasy but upon the concrete realities of human existence.

Two Principles of Justice

Having introduced the subject of rules and institutions, Rawls labels his theory, “Justice as Fairness.” According to Rawls, justice as fairness is characterized as follows:

1. Each person should have the same and indefeasible claim to an adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all.
2. Social and economic inequalities, to be justified, must meet two conditions: (a) any inequalities must be expected to be to everyone’s advantage, and; (b) such inequalities must be attached to offices and positions open to all members of society. [4]

These two principles flow from a fundamental principle that all “social values—liberty and opportunity, income and wealth, and. The social bases of self-respect—are to be distributed equally unless an unequal distribution of any, or all these values is to everyone’s advantage. [5] In Rawls’s view, any rational person in an original position and unaware of their own advantages and disadvantages would choose these two rules and subrules as the fundamental rules of a fair society.

The first principle requires that everyone has the same basic liberties, which for Americans include the liberties in the Bill of Rights. This second principle focuses on social quality. While Rawls realizes that society cannot avoid some inequalities such as result from such as inherited ability and talent, personal motivation, and the like, Rawls believes that a just society finds ways to reduce inequalities. Importantly, while Rawls makes allowance for private property, he does not make allowance for the private control of the means of production. The founders might have been astounded at this, as would their intellectual guides, all of whom felt that private property, economic freedom, and the like were essential for a well-founded society.

Limited Liberty

Rawls desires to provide a foundation for freedom of conscience, freedom of speech, and religion and the like. Once again, without proof, Rawls assume, in the “original position” and in a state of ignorance, human beings would choose a form of government that maximizes individual freedom of conscience. [6] Once again, this stands in contrast with the facts of human history, which shows that the kind of freedoms that have been in place in Western Europe and the United States are rare in human history and in some danger in the United States and Western Europe generally. Such liberties cannot be justified by an intellectual choice made in a state of ignorance, but by hard-won liberties, liberties established and defended at great cost by people who had lived under some form of tyranny.

 Although Rawls believes that human beings should have “indefeasible liberties,” this does not mean that such liberties cannot be curtailed. Rawls holds that even basic liberties can be ” for the sake of liberty.” Thus, curbing the liberties of a group that society views as “intolerant” and in danger of harming the liberties of others may be justified:

The conclusion, then, is that, while an intolerant sect does not itself have title to complain of intolerance, its freedom should be restricted only when the tolerant sincerely and with reason believe that their own security and the institutions of liberty are in danger. [7]

This kind of language is also behind some of the attempts of radical secularists to silence religious views in the public square and label the expressions of religious convictions “hate speech.” The claims of those who would restrict freedom of speech by pastors and others in the areas of morality are largely founded upon a claim of “intolerance” and “danger to liberty.”

Conclusion

Next week, I will continue to look at Rawls, beginning with his analysis of the permissible limitations of freedom of conscience and moving to his hostility to religious views being given credence in public debate. Rawls’s theory of justice and public reason attempts to create a naked public square in which religious views and arguments are excluded from public debate precisely on the grounds stated above: Religious views are inherently contrary to a secular society and the secular state. Naturally, defenders of religion critique Rawls for ignoring and diminishing the religious views of the many members of society for which these views are important. [8] In fact, as Rawls may have realized, his defense of liberal democracy is undergirded and founded on the Christian faith he forsook under the pressure of a terrible war and the human evil that war creates. [9]

[1] John Rawls, A Theory of Justice rev. ed. (Cambridge, MA: Harvard University Press, 1971-1999), 47.

[2] Id.

[3] Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge, LA:  Louisiana State U Press, 1988), 43 and Lynn D. Wardle, “The Constitution as Covenant” (BYU Studies copyright 1987), downloaded February 7, 2021, https://byustudies.byu.edu/article/the-constitution-as-covenant/

[4] Id, at 53

[5] Id, at 54.

[6] Id, at 181.

[7] Id, at 193.

[8] For an illuminating and fair look at Rawls’s views, see Tom Baily and Valentin Gentile, eds, Rawls and Religion (New York Columbia University Press, 2014).

[9] John Rawls, A Brief Inquiry into the Meaning of Sin and Faith Thomas Nagel, Ed. (Boston, MA: Harvard University Press, 2009). See, Peter Berkowitz, “A Review of A Brief Inquiry into the Meaning of Sin and Faith” Hoover Institution, Friday, May 29, 2009 https://www.hoover.org/research/god-and-john-rawls (downloaded May 24, 2023).