Rawls's A Theory of Justice at Fifty Introduction

Abstract

Throughout 2021, numerous celebrations, conferences and events took place to pay tribute to the Harvard philosopher John Rawls (1921-2001) and to his most famous book, A Theory of Justice published just fifty years ago in 1971. At the time, the publication became an immediate success worldwide and its influence has been deemed tremendous, the most commented and quoted philosophy book of the century. What was so special about it, was that it brought back to the forefront major normative political and moral issues such as the meaning of distributive justice and its value for democracies, as well as a definitive critique of welfarism. Through an evocation of Rawls's impact as experienced in the States, in France and Europe, from different disciplines ranging from political and moral philosophy to economics and politics, this issue of The Tocqueville Review/La Revue Tocqueville will help to understand the complex nature of European-American cultural and political relations, well in the spirit of Tocqueville. This introduction to this issue presents the various contributions that have been brought together to achieve this goal.

There is a wide consensus that John Rawls is one of the major American thinkers of the twentieth century. His work is now well known and discussed not only in the Anglophone world, but all over the world. The Chinese students protesting in Tiananmen Square in 1991 were said to brandish a copy of the recently translated A Theory of Justice. The Tocqueville Review/La Revue Tocqueville is dedicating this issue to an appraisal of his legacy in Europe and in America, as well as of the ongoing debates and controversies surrounding it.

His work covers and has reshaped most of the major issues of contemporary political philosophy, from constitutional law to distributive justice, from citizenship to economic efficiency, from global ethics to religious toleration, from cultural pluralism to forms of democratic consensus, etc. (Audard, 2007, 2019). Most of contemporary political philosophy has been nurtured by his seminal ideas and can be understood either as a follow-up or as a criticism and a reaction against them. Thus, no student or scholar of the discipline can ignore them.

The main idea of A Theory of Justice (TJ hereafter) is that of "justice as fairness". The ambitions are modest: to define justice, not as based on any philosophical or religious conception of the Good such as «natural» law, but in terms that citizens can agree upon when they think rationally and see themselves as free and equal persons willing to cooperate on a fair basis. From that viewpoint, which he characterizes as the "original position", citizens when placed behind a "veil of ignorance" that guarantees their impartiality, will choose principles, Rawls claims, that protect equal basic liberties and rights for all (first principle), that assure equality of opportunity (second principle) and that improve as much as possible the situation of the worst off, even if that means accepting some justifiable or useful inequalities (Difference Principle, DP hereafter). This agreement is modelled on a reworking of the traditional idea of a social contract, transposed to the choice, not of the best political regime, as for Hobbes, Locke, or Rousseau, but of first principles of justice. Such a justificatory process should express respect for citizens' autonomy and moral powers and remain neutral in relation to their own world views. In that sense, it is true to the fundamental values of liberalism (Audard, 2009): the reconciliation of the priority of liberty with the rejection of unjust inequalities as it provides a way of defining them.

It is difficult, now that Rawls is an established and well-recognized figure, to recapture the novelty and the controversial nature of his theory when it was first known through his early papers and then, through the systematic account of TJ. Many commentators have insisted on "the new departure" that his work represented. They have emphasized quite rightly that political philosophy at that time had practically ceased to exist and how Rawls's substantive conception and method, when it was first formulated in his 1958 paper "Justice as Fairness", changed the situation beyond recognition.

The most immediate impact of TJ was its radical critique of utilitarianism. Utilitarianism was, at the time, the dominant ideology and was seen as very convincing as it claims that a just society is one that maximizes what everybody values most, namely their own pleasure or happiness, and that aims consequently «to achieve the greatest net balance of satisfaction summed up over all the individuals belonging to it» (Rawls, 1999, p. 20). However, Rawls pointed out that utilitarianism does not take seriously or respect the distinctive character of individuals and accepts as justified the sacrifice of some individuals' interests or wellbeing for the good of society. This sacrificial logic, as the economist Claude Gamel writes in his paper, was alerting economists as well as most readers to the dangers of a political system where, as Rawls says:

The nature of the decision made by the ideal legislator is not [...] materially different from that of an entrepreneur deciding how to maximize his profit by producing this or that commodity, or that of a consumer deciding how to maximize his satisfaction by the purchase of this or that collection of goods

(Rawls, 1999, p. 24).

It became clear that welfare economics at the time was still more inspired by Bentham's utility principle, even in its more sophisticated formulations, than by an awareness of the value of freedom for individual well-being. It is striking that the three thinkers that Gamel compares in his paper, Rawls, Hayek, and Sen, and who have influenced his own advocacy of a sustainable form of economic liberalism, are united, despite their differences, in that they were all criticizing utilitarianism as illiberal and trying to create, each in their own way, space for an alternative view of well-being of which freedom was a major constituent.

In criticizing utilitarianism, Rawls was anticipating in a most prophetic way the injustices and dangers of a market democracy where the most popular point of view shared by a majority at one moment or another should be adopted as binding by legislators and judges. Without firm supra-constitutional principles of justice to correct and regulate popular sentiment, liberal democracies are virtually bound to deviate from the rule of law by, for instance, ignoring the rights and claims of opponents and minorities, submitting to the role of money, to oligarchies and demagogy, the reality of which has become most obvious in recent years, with the rise of populism. Such a possibility was already worrying both Alexis de Tocqueville and John Stuart Mill, when they feared "the tyranny of majorities". That Rawls was aware of the limits of democracy and its fragility in the absence of any moral compass to reign in popular feelings, is probably one of his most important legacies, as underlined by Samuel Scheffler in a recent paper (Scheffler, 2019). He concludes that "Rawls's theory [...] provides the basis for a plausible diagnosis, from the standpoint of liberalism itself, of the failures of U.S. institutions in the pre-Trump era and of the conditions that enabled Trump to win the presidency."

However, Rawls's relevance to our times, especially that of his liberalism when confronted with the rise of populism and extremisms, has been questioned. As Katrina Forrester (Forrester, 2019 (b)) writes: "if modern political philosophy is bound up with modern liberalism, and liberalism is failing, it may well be time to ask whether these apparently timeless ideas have outlived their usefulness. Rawls's ideas were developed during a very distinctive period of U.S. history, and his theory bears an intimate connection to post-war liberal democracy. Is liberal political philosophy complicit in its failures? Is political philosophy, like liberalism itself, in crisis, and in need of reinvention? And if so, what does its future look like?" In his paper, Thomas Ferretti convincingly answers Forrester's criticisms (Forrester, 2019 (a)) and—argues "that political liberalism is more relevant than ever, in times of deep political divide such as ours. Most importantly, the duty of civility, to provide public justifications in public deliberations and to actively build political agreements with others, is a demanding responsibility. It requires spending time and efforts on what President Obama once called 'the most important office in a democracy: citizen'. The future of democracy may depend on it".

Another powerful line of criticism has been expressed by feminists and race activists. It is certainly true that Rawls's modest ambition to aim at "justice as fairness" and not at justice as the elimination of all social ills and pathologies has left many disappointed and there is an enormous literature on those debates. However, in his paper, David Reidy argues that when one examines in detail, as he does, both the "ideal" and the "personal" dimensions of Rawls's point of view, there is enough space in the theory for fighting racial discriminations. Reidy provides a wealth of information on Rawls's thinking, as he has been working on an intellectual biography of Rawls for several years now and has interviewed many of his colleagues, friends, and family members; he has examined archived materials, tracked down facts about his parents, and so on. However, even if he stresses how committed Rawls was to the fight against racial prejudices, discriminations, and injustices, both intellectually and personally, one difficulty remains which he mentions. The methodology of "ideal theory" leads to a form of reasoning where membership of specific "peoples" is assumed to be a condition for accepting the social contract. This limitation shows the difficulties of the social contract model as it may lead to excluding the "other" from justice, be they the "immigrant", members of ethnic minorities, or other "peoples".

The suggestion that Rawls's view of "peoples" is contestable is also developed by Philippe Van Parijs's contribution on "Just Europe". He offers an answer to

the most recent discussion in the European Union—between political leaders, in the general public, and among academics—on the issue of justice: justice between member states, justice between European citizens, and justice toward third country nationals. What does justice demand in the case of this weird political entity now called the EU, an entity that obviously falls short of constituting a nation state but no less obviously has become far more than a supranational organization of the familiar type?

Drawing inspiration from his own correspondence with Rawls and from Rawls's controversial views on international justice (Rawls, 1999) as well as from his own experience as a Belgian citizen, torn between two constituencies, Flemish and Walloon, he deeply contests Rawls's view that peoples are a "given" and that the full principles of justice can only apply within a people, criticizing Rawls for what he calls his "stinginess". He advocates instead new forms of cooperation not only between member states, but between European citizens themselves so that the requirements of cooperative justice would respect what Rawls stipulates as the demands of justice between members of the same people. Paradoxically, he concludes that the European Union might look more and more like the United States, "the various steps toward further European integration amounting to getting somewhat closer to the United States along three dimensions: a 'transfer union', a federal electoral space, and a shared language... and that in Europe and elsewhere, we need bold alternative utopias—indeed, in more than one sense, Rawlsian utopias."

Is then a "theory of justice" an idealist dream, a utopia?

The interpretation of Rawls developed by Michel Forsé and Maxime Parodi (Forsé & Parodi, 2010 and 2020) over the years is a useful counterpart to such pessimism. As sociologists, and in line with the work of the French sociologist Raymond Boudon, they have chosen to treat Rawls's theory of justice as an "empirical theory" (this term is used by Rawls (1971, §40) himself to describe his reinterpretation of the Kantian paradigm) and have tried to explore its relevance not only for intellectuals and academics, but mostly for the European public through specific enquiries on their settled beliefs or their "considered judgments", as Rawls says (Forsé & Parodi, 2020). Do Europeans share what Rawls describes as a "sense of justice"?

What accounts for men's acting on their duty of justice in particular cases? When they have a sense of justice, an answer is that they accept the principles of justice and regard themselves bound to act in accordance with schemes of co-operation which satisfy these principles when it comes their turn

(Rawls, 1963, p. 298).

Forsé and his colleagues have used rigorous methodologies based mostly on the 2009 French PISJ survey (Perception of Inequalities and Sentiments of Justice), to assess whether the Difference Principle would be acceptable to most of the population. Whereas Norman Frohlich and Joe Oppenheimer (1992) concluded their inquiry on the DP, an inquiry which was based on a very small sample, by saying that such a principle would be only supported by a small minority, even if placed behind a "veil of ignorance", Forsé and Parodi reach the opposite conclusion with a larger representative sample of the French population (n = 1711). The DP is chosen as a valid principle of justice by a large majority, ahead of a more egalitarian principle or an optimization of the total expected utility. Even more strikingly, whatever the principle chosen for redistributing wealth, the subjects all state that they prefer to live in what they think of as a just society rather than simply a prosperous one, which shows that they express their sense of justice when stating their preferences. Empirical data, far from contradicting Rawls as Boudon concluded (Boudon, 1977 and 1995), verify the existence of a widespread sense of justice in the population that is expressed in observable preferences. Rawls was right to start his inquiry on justice with a "given": citizens' considered convictions of justice, and to see if the principles which would be chosen behind the "veil of ignorance" would match them when placed in a «reflective equilibrium» with these beliefs. An empirical theory like his would try to be congruent with "the same judgments which we would make intuitively and in which we have the greatest confidence" (Rawls, 1999, p. 17). Hence, of course, the widespread rejection of utilitarianism, as the French public is shown by Forsé to be in majority in favour of the Rawlsian principles that resonate with their own view of justice.

May not Rawls's appeal be due, then, to the way in which he combines the rich traditions of European and American political thought?

It is fascinating to see how the American historian James Kloppenberg situates Rawls within a world which is not that alien for European readers, that of Rousseau's general will as interpreted by Madison and republicanism. He helps us to understand something that the French reader has often misunderstood, namely that «Rawls's dual focus on liberty and equality should be seen as a dynamic extension of ideas present in American political thought since the eighteenth century, ideas often misunderstood because of a persistent misreading of John Locke and Jean-Jacques Rousseau as founders of allegedly separable traditions designated "liberal" and "republican"." Instead, a thorough examination of the ideas of John Adams, Thomas Jefferson, James Wilson, and James Madison, and their debts to Rousseau as well as to the Scottish moral philosophers Thomas Hutcheson and Adam Smith, should convince us that Rawls's mature ideas were congruent with "our tradition" of American political thinking, owing both to Rousseau and to Locke.

The richness and complexity of American history cannot be ignored, as Kloppenberg persuasively shows, and Rawls draws equally from both the liberal and the republican traditions, his own two principles being indeed an attempt at reconciling them, the first affirming the priority of equal basic rights and liberties, the second, equality of opportunity and civic concern for the least advantaged. Although Rawls distanced justice as fairness from the tradition of republicanism or civic humanism, he nevertheless aligned himself with Kantian republicanism and contended that in his theory of justice the original postion offers "a procedural interpretation of Kant's conception of autonomy and the categorical imperative in the framework of an empirical theory" (Rawls, 1999, p. 226). Kloppenberg's interpretation of Rawls is to see him as mostly concerned with the stability of democracies, their capacity to create citizens that cherish the duty of civility without which a concentration on basic rights and freedoms may lead to the present domination of self-interest and single interest' politics. Hence his insistence on Madison's conception of representative democracy as a process of continuing deliberation and experimental truth testing. Such an interpretation is, of course, open to discussion, but it will certainly bridge the artificial gap between an American individualistic view of liberal democracy and a European conception of justice based on the common good. For Kloppenberg in the end, as a theorist of the social contract and as a champion of equality as well as of liberty, "Rawls should perhaps not be credited with having "transformed the subject of political philosophy," as the American philosopher Thomas Nagel has put it, but rather with having inherited a rich tradition and having translated it into the language of analytic philosophy."

That rich tradition is also questioned by Céline Spector in her paper as she helps to reconnect Rawls's thinking with Rousseau and the French tradition. Like Kloppenberg, she dismisses several misinterpretations. In effect, the proximity to Rousseau should have made Rawls's reception in France relatively easy. However, it has been less than smooth among French intellectuals and academics, due to the persisting influence of Marxism and anti-Americanism as well as to a lack of understanding of what «liberalism» means beyond Guizot and the French Doctrinaires. Historically, because of the French Revolution, France has been dominated by the importance of "the liberties of the Ancients", citizens' political engagement and participation, and has dismissed the priority of "the liberties of the Moderns", the liberal emphasis on protecting personal freedoms against the state, a move that Benjamin Constant accused Rousseau's Social Contract of having inspired, "this sublime genius who was animated by the purest love of freedom being nevertheless the source of deadly excuses for tyrannies" (Constant, 1819). Spector, however, claims that Rawls ignores the accusation of "illiberalism" against Rousseau and, revisiting Rawls's Lectures on the History of Political Philosophy, she shows in detail how close Rawls is to Rousseau, but also how idiosyncratic his interpretation is in the end. She notes two major points. First, Rawls like Rousseau sees self-love or self-interest as a sound basis for justice, and he certainly follows Rousseau's motto "to unite what right sanctions with what is prescribed by interest, in order that justice and utility may in no case be divided" (Rousseau, 1762, I). The reasoning being that the "veil of ignorance" in the Original Position is indeed one that unites the two and leads to seeing freedom and equal rights for all as guarantees for self-interest and a stable social order. A social contract based on respect for freedom and self-interest is more likely to be adhered to and thus stable than "the tranquility found in dungeons" (Rousseau 1762, I, iv). Second, self-love leads to acceptance of equality and reciprocity as the maximin criterion shows with the Difference Principle: we could always end up in the position of the least advantaged and our self-interest recommends that we should try to make it the best possible (maximin).

However, Spector is attentive to major differences too. Whereas Rawls equals self-love with rational self-interest, or Tocqueville's "intérêt bien entendu", Rousseau warns us that natural self-love can become corrupted by society as we compare our lot to that of others, which leads to envy and destructiveness, something noted by Tocqueville too. Because he misses this tension and the risks inherent to social life, Rawls's rationalist optimism leads him to overvalue the force of the civic spirit and to ignore the "passions tristes" such as vanity, scorn, shame, envy, and resentment, that feed into the destructive forces that contemporary democratic politics have shown to be at work.

If, politically, Rawls's influence might be contested, or at least as Michael Sandel says "has more resonance for European welfare states than for America's market-driven society", as this special issue shows, intellectually, it has been amazingly powerful. One can link this fecundity to the very innovative justification process that takes place in TJ. Rawls derives his principles of justice from a "democratic" thought experiment, the Original Position, that can be used by any citizen, who can check in this way whether these principles express what they would accept as free and equal persons willing to cooperate on a fair basis. They are the result of the self-reflection of informed citizens of a well-ordered democracy, not the discourse of a philosopher–King. In a later work, his "Reply to Habermas", Rawls writes:

In justice as fairness, there are no philosophical experts. Heaven forbids! But citizens must, after all, have some ideas of right and justice in their thoughts and some basis for their reasoning. And students of philosophy take part in formulating these ideas but always as citizens among others

(Rawls, 1996, pp. 426–7).

One should look at TJ as a "work in progress", as calling for further debates and explanations. Most readers of Rawls want to participate and to add their contribution, as Claude Gamel illustrates in his paper, describing how his own thinking process has developed with and against Rawls. One is often amazed by the huge secondary literature that his work has generated on a scale unparalleled in the case of even more important philosophers. One reason is that his style and his democratic impulse, not simply his ideas, are responsible for such an outcome. His work has created a huge community of discussion among philosophers, economists, sociologists, politicians, technocrats and even the wider public, as if every citizen had some comment to make and some contribution to add to the whole endeavour. In that sense, Rawls' work is certainly unique.