John Rawls is a name that few Americans are familiar with, let alone a name many, if not most, conservative are unfamiliar with. Yet his major works, “A Theory of Justice” and “Political Liberalism” have served as the lens through which Americans increasingly view society and the notion of “justice”, much to our detriment. To whit, Rawl’s has contributed to:
“Many Americans think of themselves primarily in terms of the groups with which they identify. Some turn to a theoretical ‘consensus’ rather than the Constitution to determine the government’s power. Others refrain from referencing religion in the public square. Most turn to the Supreme Court of the United States as our political guide.”
Professor Jerome C. Foss, from the Saint Vincent College, presents an excellent summary and analysis of Rawls and the damage that he has helped cause. His work is worth reading in full. However, if the reader would be so kind, your humble author would like to soliloquize, so as to speak, on Rawls’ main four positions (the original position; the overlapping consensus; public reason; general theory of constitutional interpretation) as summarized in Prof. Foss’ writing, and offer a separate commentary in addition to Prof. Foss’.
The 1st of Rawls’ tenants: “The Original Position”.
Society—it’s customs, more, and folkways—should not and can not be based on abstractions, especially those of a “higher order”. Society must be consistent with reality, and with human nature. Rawls outright wished to reject mankind as having any type of essence and would rather “nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage” by pushing a pre-determined “correct” way of thinking about society upon the tabula rasa or mankind.
Rather than allow for natural rights such as life, liberty, property, Rawls proposes to treat people as nothing more than interest groups with pre-defined interests. With this assumption, he tries to lead people by the bull’s ring to the “correct” arrangement through the “Veil of Ignorance”.
Stated simply, the “Veil of Ignorance” is one where one is free to create an original position—that is, play “intelligent designer”—by constructing a social scheme without knowing which interest group or division of mankind one will belong to in this brave new world. As such, this suggests that one would support, for example, same-sex marriage and the abolition of the notions of biological sex and the “gender binary” because one might be born a queer genderfluid individual.
Rawls boils down the principles that would allegedly arise as everyone having the same basic liberties and no inequality unless absolute equality of opportunity exists while the less advantaged benefit the most.
Let us examine these assumptions. As for having the same basic liberties seems all well and good, but this just means a sameness that could be fulfilled by a lack of liberty; indeed, the later is necessary for his scheme to work, as we will later see.. For example, the right to think correctly and say only socially just things would satisfy this first point, despite this resulting in some getting their way and forcing it on others, while the others are punished.
The second point assumes that equality in effect is a requirement for justice; it is not. In reality, there will always be hierarchies—save for perhaps a small primitive tribe constrained by common superstition and customs—and those hierarchies will always result in a “fair shot” as success being impossible. This is only unjust if power is totalitarian in nature, and the power that is has no checks, but rather just the result of the will of the powerful. That differences are somehow unjust just because they don’t rise up the very dregs of society is assumptive and nonsensical.
A moral structure where the poor and needy are helped out to provide some minimum level of existence could very well be considered just, and necessary in a good and moral society. But to preclude any differences—an impossible task—unless it meets this criteria does not and ought not be a requisite for a “just” original position.
Indeed, a society where there is some difference in liberty is preferable to one where everyone equally has a lack of liberty. Much how they would rather “the poor be poorer, provided the rich were less rich”, this worldview would require a flattening of society such that everyone is worse off, even though people are relatively less worse off than others.
As such, “equality” is not, strictly speaking, a question of justice per se. As James FitzJames Stephens notes:
“The general constitution of things, by which some people are better off than others, and some very badly off in all respects, in neither just nor unjust, right nor wrong. It simply is. It affects the question of benevolence, not the question of justice, of its author.”
Thus, in order to achieve this “justice as fairness”, Rawls wishes to ignore human differences and human nature in order to create a utopia ex nihilo in vacuo.
Rawls’ 2nd tenant: “The Overlapping Consensus”.
According to Rawls, one is free to come up with any justification one can rhetorically twist, hew, and haw to support the acceptable and pre-determined “justice as fairness” position, just as long as the correct answer is arrived at. The destination is the same, so the exact route thereto is irrelevant. Thus one is free to justify the mandated position of “justice as fairness” as Rawls intends to lead us to.
This is the basis for something that emanates from the Left quite often: Starting with the pre-determined answer, and then making up what ever arguments you want to reach one’s “Q.E.D.” One can most clearly see this in “Critical Theory”, whereby one criticizes an aspect of the designated boogie-man (most often Western Civilization) by presuming that it is evil, and then coming up with excuses to justify the destruction—or deconstruction, if you will—of the axiomatically evil pre-designated boogie-man. Not that the proponents are so honest to admit as much, assuming they even grok that that is the case.
So, in addition to a pre-determined idea of “justice as fairness”, the bulwark of “consensus” is added to justify this inexorable world view.
Rawls’ 3rd tenant: “Public Reason”.
In addition to a pre-conceived notion of “justice and fairness” supported by consensus by whatever means and excuse necessary, a public reason is used as justification provided that it is consistent with the pre-determined axiomatic consensus. Thus, the will of the people is valid and just, provided the will of the people is the correct ones.
This explains the seeming contraction of the Leftist thought that declares that democracy and the will of the people are paramount, while dismissing democratic decisions decided by the people that conflict with the desired outcome.
Only the reasonable people can participate and have their voices legitimately heard. In effect, only the New Soviet Man represents the just and permissible “consensus” and “reason”; as a corollary, those who espouse incorrect thinking are rejected as “wreckers” or trouble-makers who upset the “consensus”, being essentially the Kulaks and/or Mensheviks to Rawl’s Bolshevism.
It is easy, then, to reach the correct consensus when only the arguments that will lead to that consensus are deemed legitimate and allowed to be voiced. As Prof. Foss notes:
“In practice, public reason seems to ensure liberal outcomes by disqualifying any counterarguments.”
Rawls’ 4th tenant: “Courts of Constitutional Interpretation”.
By and large, the previous three tenants lay the groundwork for the fourth, and to the most palpable results that affect us.
In effect, the courts should be bound by the “public reason” of the “overlapping consensus” of the “original position” that hypothetically would happen that enshrines “justice as fairness”.
The courts should uphold “democracy” and the “will of the people” when it is considered “correct”, and rule thereagainst when it is not. Precedent and the Common Law will be cited if they can be excused into supporting the desired result; precedent and the Common Law will be rejected when they are antagonistic to the desired result, all in the name of the “public reason” of the “overlapping consensus”.
Sadly, this cerebral onanism tends to push fantasies of unintelligent designers who muse about impossible utopias they design ex niliho and en vacuo from reality itself.
This all tends to force individuals to parrot the pre-determined stances assigned to them—all while justifying those positions through the so-called “veil of ignorance”! As such:
“However powerful justice as fairness may be rhetorically, approaching politics through the prisms of abstract identity is bad for both individuals and political communities. Through these categories, citizens are seen not as individuals, but as parts of monolithic groups that all think and act similarly, thus denigrating the liberty that allows people to make unique choices in life on account of independent thinking regardless of their economic resources, ethnicity, gender, or other factors. The dignity of the person diminishes in proportion to expectations that people adhere to their groups’ interests.
“Moreover, this doctrine enforces conformity because it teaches that breaking rank from your group puts you on the same page of history as Benedict Arnold: Black citizens or women who oppose affirmative action laws, for instance, are frequently ostracized. Thoughtless commitment and forced loyalty are required despite one’s own thoughts, interests, or experiences.”
Moreover, Rawls ideology is innately contradictory. Take, for example how it can, on one hand, be used to justify people being free to do what they want:
“Rawls’s challenge is this: If you want to outlaw abortion, you have to make an argument that even those affected most by the policy (women with unwanted pregnancies) could accept as reasonable; if you want to do away with a welfare program, you have to make the case in a way that beneficiaries would accept as just; if you want to maintain the traditional understanding of marriage, you have to convince homosexuals wanting to marry; or if you want to outlaw euthanasia, you have to persuade the terminally ill who are in severe pain.”
On the other hand, it you want to do away with a baker’s right to not use his or her personal creative abilities to promote and endorse a same-sex ceremony, it suddenly becomes unnecessary to make a case that the baker so inclined would accept as just… just a case that the “overlapping consensus” allowed by “public reason” would find acceptable—something that the pre-determined “original position” does not allow because it is not the pre-determined definition of “fairness” that is requisite for “justice”.
“Rawls argues that the Constitution is legitimate when it prohibits unfair advantages to particular groups, gives voice to the consensus of the community, and ensures that all laws are grounded in public reason. In short, Rawls expects the Supreme Court to interpret the Constitution using his theory as a guide, making the judges what he calls “the exemplars of public reason.'”
This is not justice. It is, even if one believes the bar against same-sex marriage is harmful or wrong, not a question of justice, but of inexpediance. Justice, in this regard, is, as James FitzJames Stephen notes:
“[T]here are rights which are not creations of law, but which exist apart from and antecedently to it; that a law which violates any of these rights is unjust, and that a law which, without violating then, does more harm than good is simply inexpedient.”
This is why, in rejection of countless initiatives, both statutory and Constitutional, and in contravenance of not only the Common Law, but of the collective experience and wisdom of the ages, the Supreme Court declared the biological sex had nothing whatsoever to do with marriage… while retaining an irrational animus against non-duo-normative marriage arrangements:
“The Court’s consensus-seeking posture is used most often to defend an alleged fundamental right denied by a state, but Rawls’s theory also provides the Court with the means of deflecting a federal law that runs contrary to a liberal principle of justice. Take, for instance, the 2013 case of United States v. Windsor, which ruled the Defense of Marriage Act unconstitutional. The constitutional reason for doing so, as Justice Antonin Scalia points out in his dissent, is rather vague. What is stated quite clearly, however, is that ‘the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.’ The law, in other words, is unconstitutional because the group affected could not be expected to view it as reasonable in a Rawlsian original position. The law is therefore illegitimate not because it violates something in the Constitution, but rather because it violates liberal principles of justice and public reason.”
An ignorance of true popular feelings, a rejection of the wisdom of the ages, and the perpetuation of ignorance on future generations (who would be so lucky—or unlucky depending on one’s point of view) is indeed ignorance—and it is John Rawls who pulls this veil of ignorance upon society.
The full paper by Prof. Foss can be read here, or read below in full: