University of Transnational Business Law

F. John Rawls: Political Liberalism

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This entry discusses John Rawls’s recasting in Political Liberalism of the argument for the stability of justice as fairness he originally gave in A Theory of Justice.
I. Feasibility and Stability

No theory of justice is adequate as an answer to the basic question democratic citizens face if its institutional embodiment would prove utopian in the pejorative sense of being impossible or wildly unrealistic. The realization of justice must prove feasible. Rawls argued that a polity institutionally faithful to justice as fairness would be a “realistic utopia,” a social world we might realize within the material, biological, psychological and other limits to which we are subject. Like Rousseau, however, Rawls took care not to confuse the limits within which a utopia must prove realistic with facts about our current condition. He was especially keen to emphasize that much of what we sometimes unreflectively take to be fixed in human nature – say a kind of crude materialist consumerism – is in fact fairly plastic and simply the result of contingent and alterable forces of socialization.

An adequate theory of justice must also be able to render a polity that is institutionally faithful to it stable in the right way. A polity is stable in the right way when its stability derives from the reasoned and voluntary support of citizens rather than from a modus vivendi between them or from excessive policing, compulsory indoctrination, mass manipulation, secrecy, deception, and so on. A polity cannot be “well-ordered” if it is not stable in the right way. Rawls argued that most if not all citizens living in a polity institutionally faithful to justice as fairness would come, without indoctrination or manipulation or excessive coercive measures, and notwithstanding their diverse desires, projects and particular self-understandings, to possess a sense of justice sufficient reliably to move them voluntarily to comply with and support the institutions of their polity. They would find acting out of their sense of justice congruent with acting for their own good. They would find themselves able simultaneously to develop and exercise their two moral capacities, to be rational and to be reasonable, without any disabling fundamental psychological conflicts.
II. Stability and A Theory of Justice

In his early work, notably Part III of A Theory of Justice, Rawls argued that this would happen because citizens living under institutions faithful to justice as fairness would come to endorse the substantive demands of justice as fairness and rank doing justice (honoring the demands of just institutions) for its own sake as a highest good; they would come to affirm a more or less comprehensive Kantian moral doctrine or outlook. Rawls later revised this stability argument. He came to see that it was unrealistic to suppose that citizens living under institutions faithful to justice as fairness, and hence under conditions of freedom, would ever share any particular comprehensive or nearly comprehensive moral, religious or philosophical doctrine or outlook. Instead, they will forever reasonably disagree over such matters, along with much else. This reasonable disagreement is the natural and inevitable effect of the collective exercise of reason under free institutions. It can be eliminated, and general, public, doctrinal agreement secured, only at the price of authorizing oppressive forms of coercive state action ruled out by justice as fairness. Justice as fairness demands a state neutral not in its effects on, but in its aims with respect to competing comprehensive doctrines or conceptions of the highest human good. But a state neutral in this way will be a state within which citizens reasonably affirm a plurality of comprehensive doctrines and conceptions of the highest human good. This insight forced Rawls to recast his argument for the stability of a polity institutionally embodying justice as fairness.
III. Stability Recast: Four Central Ideas in Political Liberalism

Much of Rawls’s later work (especially Political Liberalism) was aimed at working out a revised stability argument. This later work introduced at least four important new ideas. The first is the idea of reasonable pluralism. The idea is that under free institutions rational and reasonable citizens will inevitably and naturally affirm different moral, religious and philosophical comprehensive doctrines. Not all doctrinal disagreements arise out of irrationality or unreasonableness. Some arise simply due to various “burdens of judgment” that rational and reasonable citizens cannot overcome when they freely and publicly reason together. As between citizens otherwise generally committed to liberal democracy, a doctrinal disagreement is a reasonable disagreement if it arises from these burdens of judgment (rather than irrational bias or dogmatic refusals to examine evidence). In a free society, citizens will often reasonably disagree over comprehensive doctrines. While the diverse doctrines they reasonably affirm will often prove inconsistent with one another (indicating that at least one must be false), they will also often prove consistent with, even supportive of, the essentials of constitutional liberal democracy.

The second new idea is the idea of a “freestanding and political” conception of justice. Such a conception applies only to citizens in their relations one to another qua citizens in the political domain. And it is publicly justifiable (at least pro tanto) solely in terms of generally accepted facts and ideals of political morality latent in a shared public political culture. It makes no appeal to the exclusive truth of, and asserts no claim regarding its particular relationship to, any reasonable comprehensive moral, religious or philosophical doctrine. It concerns itself only with the interests of citizens as citizens and it leaves each citizen free to determine for herself its relationship to the comprehensive doctrine she affirms. In recasting the argument for justice as fairness as a freestanding and political argument, Rawls recasts many of the fundamental ideas at work in the original position. As just suggested, for example, he conceives of original position agents as representing not persons and their highest order interests, but rather as representing citizens, understood politically, and their higher order interests (leaving open whether citizens might qua persons have yet still higher interests). And he conceives of primary goods not as general all purpose means to the most general ends of persons, but rather as necessary social conditions to the status and activity of citizens as citizens. In some cases, recasting key elements of the argument for justice as fairness in freestanding and political terms makes possible new lines of argument, say with respect to the reasoning of agents in the original position. For example, in his later work Rawls recasts his original position argument for the priority of the basic liberties by focusing on the constitutive relationship between the basic liberties and citizenship status.

The two ideas just surveyed, reasonable pluralism and a freestanding and political conception of justice, lead naturally to a third. This is the idea of an overlapping consensus between citizens who are able to affirm publicly and to honor voluntarily one and the same freestanding political conception of justice, notwithstanding and without compromising their diverse doctrinal commitments in matters moral, religious and philosophical. Within an overlapping consensus, the freestanding political conception of justice fits in diverse ways as a module in diverse reasonable comprehensive doctrines. Each doctrine, then, provides its own distinctive foundations or non-public justification for the freestanding political conception. Rawls argued that an overlapping consensus constitutes the most reasonable basis of social unity in a constitutional liberal democracy and that it is not unrealistic to expect such a consensus to arise (progressively in stages) once a constitutional consensus is secure. Rawls speculates that just as a constitutional consensus may develop out of a political modus vivendi, so too an overlapping consensus over a generically liberal conception of justice may develop out of a constitutional consensus. A conception of justice is generically liberal so long as it secures the priority of familiar basic rights and liberties, meaningful equality of opportunity, and a social minimum sufficient to ensure that citizens can make some meaningful exercise of their rights and liberties. Restricted utilitarianism and justice as fairness are therefore both generically liberal. There may be other generically liberal conceptions as well. A liberal democracy is stable in the right way if all or nearly all citizens are able and inclined to affirm both on public political grounds and from their own comprehensive doctrines some generically liberal conception of justice; it need not be the same conception. Such an overlapping consensus might, of course, become more focused over time. Citizens might generally come to affirm the same generically liberal conception of justice, perhaps even justice as fairness. But a constitutional liberal democracy could be stable in the right way without this more focused overlapping consensus.

The final idea is of the public reason citizens and officials must exercise and to which they must appeal in any generically liberal constitutional democratic order when publicly justifying their judgments or conduct as citizens or officials (especially on the most pressing political questions of constitutional design and basic justice). The content of public reason is given most generally by, first, the family of generically liberal political conceptions of justice and, second, the noncontroversial and readily understood truths of science, history, common sense, and so on. If democratic citizens conduct their politics in and through public reason, they ensure that their collective exercises of coercive force through state action remain always subordinate to a common public reason. In this way, they continually show one another their public commitment to the view that might does not make right. As democratic citizens and officials exercise their public reason over time, Rawls conjectured that they would deepen, widen and give focal specificity to their overlapping consensus. In this way they would expand the content of their public reason simply through the exercise of their public reason.

Citizens are free, of course, not just legally but as a matter of political morality, to reason from their nonpublic comprehensive doctrinal commitments in public political debate. Indeed, in some cases they may advance great public goods by so doing. For example, they may reassure their fellow citizens that they support the essentials of a generically liberal order not just for public political reasons but also for their own nonpublic doctrinal reasons. By so doing they may strengthen public political trust and social stability. Nevertheless, Rawls holds that citizens also ought always aim to provide, or at least be able to provide, their fellow citizens with public reasons for their positions and votes on constitutional essentials and matters of basic justice. So doing is a democratic civic duty and thus part of their virtue as citizens. A liberal state need, indeed ought, not be neutral in its aims with respect to these limited matters of public political morality. Its basic institutions ought to educate citizens into the duties and virtues of good citizenship in a liberal democracy. The demands public reason imposes on citizen are demands of justice and legitimacy; they do not derive from some other value.
IV. The Liberal Principle of Legitimacy

A fundamental corollary of the idea of public reason is the liberal principle of legitimacy. According to this principle, coercive state action is legitimate only when in accord with and pursuant to a constitution the essentials of which all citizens could (even if some do not) affirm from their common human reason. The citizens of a polity stable through an overlapping consensus on a generically liberal political conception of justice would all or nearly all accept this principle. They may not all rank doing justice for its own sake as part of their highest good (as do doctrinal Kantians). Indeed, none may do so. But they will all acknowledge the legitimacy of coercive state action consistent with the liberal principle of legitimacy. They will each have, then, a prima facie reason to comply with, or at least acknowledge the pro tanto authority of, constitutionally valid law. Rawls concludes that if the (vast majority of) citizens of a pluralist liberal democracy can be reasonably expected to acquire a sense of justice and legitimacy sufficient to lead them voluntarily to comply most if not all legitimate laws, then it is not unreasonable to suppose that a pluralist liberal democracy could be stable in the right way. Importantly, this means that those citizens who regard justice as fairness, say, as the most reasonable liberal conception of justice may with reasonable hope for success, and therefore ought to, restrict their pursuit of a polity faithful to that conception to a civil democratic politics of public reason.

It is important here to recall that Rawls distinguishes between the legitimacy and the justice of coercive state action. States often legitimately enact and enforce unjust laws. Citizens have a reason, even a prima facie duty, to obey legitimate but unjust laws simply because they are legitimate and as such have genuine authority over them. But as discussed several sections above, if a law is too unjust, a citizen may be morally free, in grave cases even morally required, to engage in civil disobedience. (And citizens faced with laws neither legitimate nor just may be morally free, in grave cases morally required, to forcibly resist.) In general, Rawls holds that in a reasonably (though not perfectly) just polity, citizens have a natural duty to comply with most if not all laws. Officials who voluntarily assume certain roles within the polity may have, by virtue of the principle of fair play, additional reasons to obey the laws. They may also, as officials, have additional obligations that do not apply to citizens generally.
V. Stability and Reasonable Hope

Rawls completes his stability argument for justice as fairness under conditions of reasonable pluralism by noting several important goods uniquely secured by any generically liberal constitutional democracy. These include democratic civic friendship and a morally acceptable form of national pride. Most reasonable citizens will assign some significant weight to these goods and thus find themselves with additional reasons to comply with the demands of the institutions they live under. Rawls acknowledges that he cannot guarantee that no citizens will rationally and not unreasonably affirm goods, perhaps transcendent goods, that provide them with compelling reasons to resist coercive state action or refuse to support constitutional liberal democratic institutions. The best he can do is to show that it is neither unrealistic nor unreasonable to hope for a pluralist constitutional liberal democracy stable in the right way through an overlapping consensus on the family of generically liberal and publicly justifiable political conceptions, and to emphasize the very great goods available to citizens in such a polity. But this, he maintains, is enough.

Following section: G. John Rawls: The Law of Peoples