Samuel Freeman

Rawls on Justification

Rawls offers what might be seen as three ideas of justification: the method of reflective equilibrium, the derivation of principles in the original position, and the idea of public reason. These can appear to be in some tension with one another. Reflective equilibrium seems to be an intuitive and “inductive” method. On one natural interpretation, it holds that principles are justified by their ability to explain those judgments in which we feel the highest degree of confidence. By contrast, the original position argument is more theoretical and more “deductive”: principles of justice are justified if they could be derived in the right way, institutions are just if they conform to these principles, and particular distributions are just if they are the products of just institutions. Justifications that meet the requirements of public reason need not have this particular form, but they are limited in a way that an individuals search for reflective equilibrium is not. The idea of public reason holds that questions of constitutional essentials and basic justice are to be settled by appeal to political values that everyone in the society, regardless of their comprehensive view, has reason to care about. This is more restrictive than the idea of reflective equilibrium, since not all of an individuals considered judgments, or even all of his or her considered judgments about justice, need meet this test.

For a Democratic Society

JUSTICE AS FAIRNESS John Rawlss A Theory of Justice tells us what justice requires, what a just society should look like, and how justice fits into the overall good of the members of a just society. But it does not tell us much about the politics of a just society: about the processes of public argument, political mobilization, electoral competition, organized movements, legislative decision making, or administration comprised within the politics of a modern democracy. Indeed, neither the term “democracy” nor any of its cognates has an entry in the index to A Theory of Justice . The only traditional problem of democracy that receives much sustained attention is the basis of majority rule, which is itself addressed principally in the context of a normative model of legislative decisions with an uncertain relation to actual legislative processes. This relative inattention to democracy – to politics more generally – may leave the impression that Rawlss theory of justice in some way denigrates democracy, perhaps subordinating it to a conception of justice that is defended through philosophical reasoning and is to be implemented by judges and administrators insulated from politics. So it comes as something of a surprise when Rawls says, in the preface to the first edition of Theory of Justice , that his conception of justice as fairness “constitutes the most appropriate moral basis for a democratic society .” To be sure, the idea that justice as fairness has a particularly intimate democratic connection is prominent from the 1980 Dewey Lectures forward.

THE LAW OF PEOPLES, SOCIAL COOPERATION, HUMAN RIGHTS, AND DISTRIBUTIVE JUSTICE

Cosmopolitans argue that the account of human rights and distributive justice in John Rawlss The Law of Peoples is incompatible with his argument for liberal justice. Rawls should extend his account of liberal basic liberties and the guarantees of distributive justice to apply to the world at large. This essay defends Rawlss grounding of political justice in social cooperation. The Law of Peoples is drawn up to provide principles of foreign policy for liberal peoples. Human rights are among the necessary conditions for social cooperation, and so long as a decent people respect human rights, a common good, and the Law of Peoples, it is not the role of liberal peoples to impose upon well-ordered decent peoples liberal liberties they cannot endorse. Moreover, the difference principle is not an allocative or alleviatory principle, but applies to design property and other basic social institutions necessary to economic production, exchange and consumption. It presupposes political cooperation—a legislative body to actively apply it, and a legal system to apply it to. There is no feasible global state or global legal system that could serve these roles. Finally, the difference principle embodies a conception of democratic reciprocity that is only appropriate to cooperation among free and equal citizens who are socially productive and politically autonomous. I am grateful to K. C. Tan for many helpful discussions and criticisms of this essay. I am also grateful to the other contributors to this volume for their comments, and to Ellen Paul for her many helpful suggestions in preparing the final version of this essay.

On Rawls and Political Liberalism

I spoke here approximately five years ago. Then I spoke on Frege and Wittgenstein, [and] so I thought I would continue the series by now talking about Rawls. Some might think there is no connection between Frege and Wittgenstein, on [the] one hand, and Rawls, on the other. For me there is a very close connection, and I hope to bring it out implicitly if not explicitly today. Everyone knows that in 1971 John Rawls published A Theory of Justice , which is very widely considered the most important work in political philosophy and perhaps even in moral philosophy since the end of World War II, and many think the most important work in political philosophy since the writings of John Stuart Mill. But what is not so widely known is that in 1993 Rawls brought out a second book, Political Liberalism , which a few of us believe is even more important. This book did not receive much praise upon coming out and has had [much less] attention paid to it. That I should like to change. (As I told Rawls yesterday afternoon just before I came out here, I view myself as an apostle going west.)

Constitutional democracy and the legitimacy of judicial review

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamiltons traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.

CAPITALISM IN THE CLASSICAL AND HIGH LIBERAL TRADITIONS

Liberalism generally holds that legitimate political power is limited and is to be impartially exercised, only for the public good. Liberals accordingly assign political priority to maintaining certain basic liberties and equality of opportunities; they advocate an essential role for markets in economic activity, and they recognize governments crucial role in correcting market breakdowns and providing public goods. Classical liberalism and what I call “the high liberal tradition” are two main branches of liberalism. Classical liberalism evolved from the works of Adam Smith and the classical utilitarian economists; its major 20th century representatives include Friedrich Hayek and Milton Friedman. The high liberal tradition developed from John Stuart Mills works, and its major philosophical representatives in the 20th century are John Dewey and, later, John Rawls. This paper discusses the main distinguishing features of the classical and the high liberal traditions and their respective positions regarding capitalism as an economic and social system. Classical liberals, unlike high liberals, regard economic liberties and rights of private property in productive resources to be nearly as important as basic liberties. They conceive of equality of opportunity in more formal terms, and regard capitalist markets and the price system as essential not only to the allocation of production resources, but also as the fundamental criterion for the just distribution of income, wealth, and economic powers. High liberals, by contrast, regard the economic liberties as subordinate to the exercise of personal and civic liberties. They are prepared to regulate and restrict economic liberties to achieve greater equality of opportunities, reduce inequalities of economic powers, and promote a broader conception of the public good. And while high liberals endorse markets and the price system as essential to allocation of productive resources, they do not regard markets as the fundamental criterion for assessing just distributions of income, wealth, and economic powers and positions of responsibility. The paper concludes with some reflections upon the essential role that dissimilar conceptions of persons and society play in grounding the different positions on economic justice that classical and high liberals advocate.

Congruence and the Good of Justice

One of Rawlss guiding aims in the development and revision of his work has been to show how a well-ordered society of justice as fairness is realistically possible. Rawls thinks establishing the feasibility, or “stability,” of a conception of justice is essential to its justification. My aim is to discuss the role and import of Rawlss stability argument. To do so, I will concentrate primarily on the second part of Rawlss discussion of stability in Theory of Justice , the argument for the “congruence of the right and the good.” This argument particularly exhibits Rawlss indebtedness to Kant in the justification of his view. After discussing the purpose of congruence (in Sections I and II), I outline in detail what the argument is (III and IV), emphasizing the role of the Kantian interpretation of justice as fairness. Then in Section V, I discuss how problems with the Kantian congruence argument led Rawls to political liberalism. STABILITY AND CONGRUENCE: OUTLINE OF ISSUES Rawls’s congruence argument has been widely neglected in discussions of his work. Reasons for this neglect are several. First there is sheer exhaustion. The congruence argument begins in Part III of Theory of Justice ( TJ ), is developed for over 200 pages, and culminates (in Section 86) at the end of a very long book. Second, there is Rawls’s uncharacteristic lack of clarity in setting out the congruence argument: it is interrupted and intertwined with other arguments Rawls simultaneously develops. Finally, there is the feeling among some of Rawls’s main commentators that the argument is a failure.

The burdens of public justification: constructivism, contractualism, and publicity:

The publicity of a moral conception is a central idea in Kantian and contractarian moral theory. Publicity carries the idea of general acceptability of principles through to social relations. Without publicity of its moral principles, the intuitive attractiveness of the contractarian ideal seems diminished. For it means that moral principles cannot serve as principles of practical reasoning and justification among free and equal persons. This article discusses the role of the publicity assumption in Rawls’s and Scanlon’s contractualism. I contend that a regard for publicity and a moral conception’s potential to provide a public basis for justification and agreement account for much of the evolution of Rawls’s account of justice after A Theory of Justice. I also discuss whether contractualism can provide a basis for justification and general agreement under the social conditions that it endorses. I contend that it cannot, and conclude with a discussion showing why this should not be a problem for contractualism. Despite appearances, contractualism is a distinctive form of contractarianism, substantially different from Rawls’s position and the social contract tradition out of which it evolved.

Rawls on the Relationship between Liberalism and Democracy

Rawls and his critics agree on at least this: his theory is liberal. This essay asks, To what extent is it also democratic? Does Rawlsian liberalism denigrate democracy as some critics charge? Despite the enormous literature on Rawls, remarkably little has been written on the relationship between liberalism and democracy in the theory. Critics over the years have suggested that the theory denigrates democracy in one of three ways, which I consider by posing three critical questions about the theory. First, does it devalue the equal political liberty of adults (at any one of three levels of theory formation)? Second, does it devalue the political process of majority rule? Third, does it devalue the kind of civic discourse that relies on more comprehensive philosophies – both religious and secular – rather than on the free-standing political philosophy that Rawlss theory distinctively defends? In interpreting Rawls’s understanding of democracy, I draw upon both A Theory of Justice ( Justice ) and Political Liberalism ( Liberalism ). The two works diverge at points, which I discuss when the differences bear on Rawls’s understanding of the relationship between liberalism and democracy. But together they have more to say about the relationship than either work alone.

Criminal Liability and the Duty to Aid the Distressed

The aim of this Article is to address some of the normative, as opposed to the purely metaphysical, issues raised by Michael Moores analysis of the criminal laws act requirement. On several occasions, Professor Moore himself recognizes the role of ethics in finally settling issues of the application of the metaphysics of action to the criminal law. For example, he acknowledges that, ultimately, moral criteria are needed to determine whether an event is the