How Liberalism Cuts Out the Natural Law: John Rawls's Sleight of Hand, Part 1

THE PHILOSOPHER JOHN RAWLS is a household name to most American law students. His books A Theory of Justice, Political Liberalism, and Justice as Fairness are the regular staple of jurisprudence courses. Rawls is the great defensor and apologete of political liberalism and secular, pluralistic democratic civil society. In his various writings, his express goal is to put forth principles and norms--a political morality--that can be accepted, indeed, one that is morally incumbent on all people who live in a pluralistic society regardless of their particular religious or philosophical comprehensive commitments. More than that, he claims to have achieved this goal.

In his books he has offered a plausible basis for political dialogue and action among all people of good will, regardless of the various parties' comprehensive commitments. By following his brand of political liberalism, Rawls insists, even the most disparate voices in our pluralistic society can band together to achieve an "overlapping consensus," a moral agreement, about what is fair and what is just. Rawls tempts us with this plausible theory "that reasonable people of diverse faiths, including Catholics, are supposed to be able to endorse without compromising their faith." George, 81. Following the Rawlsian formula, we are assured that we can arrive at consensus as to matters relating to the good, it matters not what our moral, philosophical, or religious convictions may be as to "human nature, dignity, and destiny." George, 81. Rawlsian politics will save us from the divisions that beset us. Rawls stands like divinely-inspired Moses on Mount Pisgah, and he will usher us into a liberal promise land flowing with milk and honey. "Glory to Rawls wherever he is, in heaven, in hell, or in purgatory, and on earth peace to men of good will!"

What we will see, however, is that the Rawlsian "political morality" is not neutral; it is not even secular; it is decidedly secularist. More, it is, by design, hostile to the notion that the natural moral law, at least as it has been classicaly understood, ought to be part of the political debate. Indeed, the Rawlsian formula is in direct competition with the natural law, and fundamentally opposed to it. The natural law "can accomplish what secular writers such as . . . Rawls seek to accomplish. It can provide an accurate understanding of the moral principles and norms that should govern political life in the concrete circumstances of particular societies," including, and perhaps most especially, those that are pluralistic. George, 81. So the Rawlsian model is in competition with the natural law model. What Rawls has done in advancing his "political liberalism" model, however, is to stack the deck against the natural law and in favor of a secularist philosophical liberalism. In fact, insidiously, Rawlsian political morality practically excludes faithful Catholics (and also others, including Protestants, Jews, who adopt a natural law viewpoint) from political discourse.

It has been said: "If you want to understand President Obama's soul, read his books. But if you want to understand his beliefs, read John Rawls." (See Talk Left: The Politics of Crime, http://www.talkleft.com/story/2009/6/13/03244/1940.) But it is not only President Obama that is Rawlsian. In his Dialogue against the Luciferians, St. Jerome wrote: Ingemuit totus orbis, et Arianum se esse miratus est. "The whole world groaned and was astonished to find itself Arian." Dial. con. Luc., 19. 23 PL 181. We can echo St. Jerome and say that all America groaned and was astonished to find itself Rawlsian. The political climate is largely Rawlsian. In light of the Rawlsian prejudice against natural law and its affinity for a secular, philosophical liberalism, political participation by advocates of the natural law in the political process is rendered practically problematic if not impossible. Under the Rawlsian arrangement, the advocate of the natural law will always lose, as he is asked to join the fight with both hands tied behind his back, while the liberal has kept his free.

A little background is warranted. In his influential book published in 1971, A Theory of Justice, Rawls advanced a liberal philosophy of justice which he called, rather vaguely, "justice as fairness." In crafting his notion of secular justice, Rawls used a mind game, what he calls a method of "political constructivism." He suggested that we hypothetically situate ourselves in an "original position," one where we stand behind a "veil of ignorance," where "no one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like." Nor does one know what "comprehensive view" of reality he will have. Shrouded by such a "veil of ignorance," the basic principles of justice are those that would be chosen by people who, at the "original position" were equal and free, and were making decisions about what was fair without knowing where they would be, and what they would believe and hold fast to, in the political society they would be constructing. This yielded the so-called "liberal principle of legitimacy" and ideal "public reason" which had "the same basis as the substantive principles of justice." PL, 225; George, 90. Everything he proposes seems so plausible, and so wonderfully rational, so wonderfully fair.

To his credit, years later, Rawls conceded in Political Liberalism published in 1993, that his "justice as fairness" principles advanced in A Theory of Justice had presupposed a "comprehensive doctrine," that is, as Robert P. George put it, "a worldview--an integrated set of moral beliefs and commitments reflecting a still more fundamental understanding of human nature, dignity, and destiny." George, 83. Namely, Rawls admitted that in fashioning his first theory he had assumed that all citizens held "the same comprehensive doctrine, and this includes aspects of Kant's comprehensive liberalism." PL, xlii. In other words, his Theory of Justice inadvertently, yet nevertheless arbitrarily, required that only Kantians could go behind the "veil of ignorance." All other "comprehensive doctrines" except for a comprehensive, secular Kantian-based liberalism were excluded from coming behind the curtain. This was an obvious flaw to his theory; it made his "justice as fairness" theory highly exclusionary, self-contradictory, and unfair. As a result, Rawls modified his theory in Political Liberalism. In Political Liberalism, Rawls sought to limit the implicit demand that one be comprehensively liberal, to a more restricted requirement that we only accept to be politically liberal. Rawls only required that one only need acknowledge "the fact of reasonable pluralism." By acknowledging this fact, and recognizing that the political process had to work with it, Rawls suggested that "political" (as distinguished from "comprehensive") liberalism was morally compelling. The ideal of political liberalism is that

citizens are to conduct their public political discussions of constitutional essential and matters of basic justice within the framework of what each sincerely regards as a reasonable political conception of justice, a conception that expresses political values that others as free and equal also might reasonable be expected to endorse.

PL, 1. By thus tinkering with his theory, Rawls thought that he had fixed the problems with it. All comprehensive doctrines, including the "comprehensive liberalism" that had been snuck in in his A Theory of Justice, would this way be effectively bracketed, and we could all effectively live and work together using "public reason." Public discourse, and as a consequence, the political process and public law, would therefore exclude these "comprehensive doctrines," and a "strictly political conception of justice" would be the result. Rawls insisted that this new, improved theory did not require any comprehensive doctrine to be espoused as a condition for public discourse. He eschewed the suggestion that "political liberalism" was just "Enlightenment liberalism, that is, a comprehensive liberal and often secular doctrine" under another moniker. No, political liberalism was:

a political conception of political justice for a constitutional democratic regime that a plurality of reasonable doctrines, both religious and non-religious, liberal and nonliberal, may freely endorse, and so freely live by and come to understand its virtues. Emphatically, it does not aim to replace comprehensive doctrines, religious or nonreligious, but intends to be equally distinct from both and, it hopes, acceptable to both.

The Philosopher John Rawls

PL, xl. Rawls thought highly of his theory. For him, it was more than a pragmatic sanction. For him it was a matter of moral exigency, of moral affirmation. "Where constitutional essentials and matters of basic justice are at issue," Rawls insisted that "public constitution and debate must be conducted--for moral reasons and not as a mere modus vivendi--in terms of a 'strictly political conception of justice,' and not in terms of moral doctrines of justice associated with the various comprehensive views about which reasonable people disagree." George, 85 (emphasis added) (quoting PL, xvii). When people of different and competing comprehensive views affirm such a "political conception of justice," an "overlapping concensus" on matters of justice will be the result. "It is this concensus," as George explains Rawls's view, "that makes social stability in the face of moral pluralism not only possible, but but possible 'for the right reasons.'" George, 84 (citing PL, xlii, 388, 390, and 392.) This "political liberalism" touts itself as impartial, as neutral, as eminently fair with respect to the various comprehensive doctrines that are held by the citizenry. Political liberalism "does not attack of criticize any reasonable [comprehensive] view." PL , xxi. Rawls believed that those holding comprehensive doctrines, even those with nonliberal comprehensive doctrines, could endorse his "political liberalism." George, 85. More, they were really morally compelled to do so, since he saw it as acceptable to human reason regardless of reasonable comprehensive commitments. In the exercise of public discourse, public power, even the power to vote, the citizens were morally expected to abstain from "acting on the basis of principles drawn from their comprehensive views." George, 84. Further, such reciprocation from all groups is required as a principle of political legitimacy. George, 85.

That would be fair. That would give us justice. Or would it? Our next blog posting will try to answer that question.



Note: In this section, and in the next blog entry where we finish this Rawlsian critique, we have relied heavily on Robert P. George, "Restricting Reasons, Attenuating Discourse," in Human Nature in its Wholeness: A Roman Catholic Perspective (Washington, D.C.: CUA Press, 2006), 80-94, cited here as "George."