16. The Rawlsian Social Contract


Prof: So welcome back
everybody. It probably will take a while
to wrestle your brains back to what we were talking about
before the break, but I’ll do my best to help in
that endeavor. We’re really finishing up the
first two-thirds of the course by talking about John Rawls,
a very interesting figure and phenomenon in modern political
philosophy. We’re finishing up the first
two-thirds of the course in the sense that this is the third
Enlightenment tradition we’re talking about,
the first two having been utilitarianism and Marxism.
And after we finish with Rawls
we’re going to talk about the anti-Enlightenment tradition and
then the democratic traditions. So Rawls is an odd figure in
some ways. If I had been here,
or if a predecessor from a prior generation had been here
teaching a course like this in the 1950s or early 1960s,
and somebody had speculated that maybe a very major figure
would emerge in American political philosophy there would
have been a lot of skepticism, and there would have been even
more skepticism if somebody had said,
“And they would have been a theorist of the social
contract.” And I think there would have
been two reasons for that skepticism.
One is that political
philosophy was really not thought to be a particularly
important area of philosophy, of academic philosophy in the
1950s and 1960s. The people who were sort of
seen as the cutting edge in philosophy were doing philosophy
of language, logic, epistemology,
metaphysics, and political philosophy was
sort of way down on the totem pole.
It was a subdivision of ethics,
and sort of ethics for many people, if you like.
And the notion that anybody in
philosophy who did political philosophy would turn out to be
a major figure would have attracted a lot of skepticism
among academic philosophers. And yet John Rawls,
I think today, and if you polled,
if you went around the most prestigious philosophy
departments in the world, not just the English-speaking
world, today, and said,
“Who was the most important philosopher of the
last third of the twentieth century,
not political philosopher just philosopher,”
and you ask that question of people in major philosophy
departments around the world, Rawls would be cited more than
other person, without any doubt about it.
I don’t have any doubt about it.
He’d be cited more than any
other person. So that’s one reason people
would have been skeptical that they just didn’t think political
philosophy was that important and the sort of serious
heavyweights in philosophy did other things.
But then I think the second
reason people would have been skeptical is that a theorist of
the social contract, and everybody knew that the
social contract, which as you all know,
has been around in its modern form at least since the
seventeenth century, everybody knew it had these two
huge problems. One was that it didn’t have any
grounding in natural law that people accepted,
and the second was it never was a social contract.
We now know from 150 years of
anthropology there never was a social contract.
Aristotle was closer to being
accurate when he sort of treated human beings as inherently
political. There was never a pre-political
condition. And as you now know,
because we’ve studied Robert Nozick,
the revival of the social contract tradition answered both
those questions first by replacing natural law with some
version of Immanuel Kant’s ethics.
So Kant becomes the placeholder
for natural law, and on the other hand working
with hypothetical contracts rather than actual contracts
asking the question, “What would people agree
to?” not “What did people agree
to under certain specified conditions?”
But neither of those ideas was
central to Nozick, was invented by Nozick.
Rather both of those ideas were
invented by Rawls, and Nozick was one of many
people who reacted to Rawls. I had pedagogical reasons for
dealing with Nozick first, namely that his argument grows
so directly out of Locke’s, but if this was a course in the
history of twentieth-century political philosophy of course
we would have done Rawls first. And it’s really important to
say this because Nozick’s book would never have been written
but for Rawls. And I think the one measure of
the importance of Rawls is that there are probably fifty books,
and I don’t know how many articles that would never have
been written but for Rawls. You can go and find Rawls’s
book in the library and you’ll find it on the shelf next to the
book just books listing the citations to Rawls’s book.
And so that’s a very
interesting fact. It’s also an interesting fact
because Rawls is not a great in the sense that we think of as
Hobbes, Locke, or Mill,
or Dewey, who we don’t read in this course,
as greats in the sense that most of those people had a view
of the world that ranged right across all domains of knowledge.
So if you read Locke,
he had a view of knowledge, a view of language,
a view of theology, a view of politics;
a view of everything. Mill had a theory of science.
He had a mathematical theory.
He had theories of meaning.
He had an epistemology,
and he had a theory of politics.
Dewey, same story,
there’s a whole worldview that’s worked out in every what
we today think of as disciplines,
but for most of the tradition we’re not divided up in the way
we divide things up today. But the people we tend to call
greats had a view that ranges across the whole gamut of
knowledge. Rawls didn’t do that.
He doesn’t have a metaphysics.
He doesn’t have epistemology,
he doesn’t have a theory of science, he doesn’t have a
theory of language. He only wrote this book,
basically. He wrote some articles which
lead up to the book and then some things that follow out of
the book, but basically his book A
Theory of Justice is it. And so he’s not a great in that
sense of the greats of the tradition,
but he certainly has more intellectual staying power than
any contemporary, in the broad sense of the word,
that you’ve read in this course or will read in this course.
People will still be reading
Rawls long after people like me have been forgotten about.
So in that sense he’s a really
important figure, and he’s a really important
figure also in the sense that even if you don’t like his
arguments, even if you are completely
un-persuaded by all of his arguments you have to come to
grips with him. I’m not in sympathy with any of
his major arguments, but you cannot work in this
field and not deal with John Rawls.
That’s how important he is,
and he’s going to be for a long time.
So that’s just by way of
background and letting you know what you’re dealing with.
One other thing I’d say about
A Theory of Justice is, it is not a well-written book.
It’s not badly written in the
sense that it’s unclear. Any given paragraph is clear
enough if you sit down and figure out the jargon means.
It’s not hard in the sense
that, say, the technical sides of Marx or Pareto are hard,
but it’s not captivating writing.
You need a chair with a hard
back to read this book, and there’s a reason for that.
The reason is that although the
book was published in 1971, Rawls actually came up with the
main ideas in the 1960s in a couple of articles,
the most famous of which was called Justice as
Fairness, and he circulated these
articles in the profession, in the philosophy profession,
and he kept getting criticisms. And eventually he had book
manuscript, and he circulated the book manuscript and he kept
getting criticisms. And every time somebody sent
him a criticism he added three paragraphs to address the
criticism. This is not the way to write a
book if you want it to be captivating.
So it’s got this kind
of–almost plodding quality that’s sort of at variance with
the hype I just gave you about his importance,
but it’s to do with the composition of the book,
I mean, there’s ten years of endlessly fiddling with this
manuscript. And I should also say that he
eventually did a second edition of the book later in his life,
which is a substantial rewrite of it from the first edition.
So he was somebody who couldn’t
stop fiddling, and it’s not a trait to which I
would commend to you, but in any event there it is.
And it’s a long,
and if not plodding, certainly ponderous book,
and my goal in these lectures about Rawls is to try pull out
the main ideas for you, and particularly the main
enduring ideas. Because Rawls,
like everybody else we’ve read, as an architectonic theorist
fails. The pieces don’t add up.
There are big logical holes in
the big structure. So if you want it to be the
silver bullet or the final word it’s not going to happen.
Nonetheless,
there are very important enduring insights and questions
Rawls put on the table which have not gone away and are not
going to go away for anybody who wants to think about the
fundamentals of political association.
So what are these ideas?
Well, they get,
I think, mixed up to some extent,
or hidden, or obscured, or made to seem more
complicated than they should be partly because of the
architecture of his theory, partly because of the way he
does the exposition. He has this story about the
original position, which is his version of the
hypothetical social contract. And let me just give you the
intuition, but I want to preface it by saying it’s actually not
important to his theory. It’s really an expository
device because what he does is he structures a hypothetical
choice, and then he gives you certain
kinds of information to get you to choose a certain outcome.
So unless the outcome is itself
independently desirable, the fact that this thought
experiment leads to it is of no interest.
Let me give you an example
before we get into Rawls, which is one that he himself
gives. I’m not sure if it’s one of the
excerpts you read or not, but this is an observation that
has been around long before Rawls.
He says, “What is the fair
way to cut a cake?” Is this in what you read
anybody, “What’s the fair way to cut a cake?”
Probably not,
I’m sure you spent your spring break reading through Rawls.
Yeah?
Student:
>Prof: Correct.
So the person with the knife
gets the last slice, and what will they do?
Student:
>. Prof: But how will they
divide it? Student:
>. Prof: There are two
assumptions there, okay?
You say, “What’s the fair
way to cut a cake?” The answer: “The fair way
to cut a cake is the person with the knife gets the last
slice.” What will they do?
They will divide it equally,
right? That’s how the person with the
knife gets the biggest possible slice, right?
Right, yeah?
Anyone think that’s not the
fair way to cut a cake intuitively?
Okay, well there are two
assumptions there that are worth bringing to the fore just for
purpose of what I’m going to say to you about Rawls in a minute.
One is that we think dividing
the cake equally is the right, you know, we’ve devised a
system where the cakes can get equally divided,
right? But do we think it should be
equally divided? What if I added other
information like one of the people in the room was starving
and hadn’t eaten for three days, or one was a diabetic?
We could add other information
which would make you wonder, do you want to get an equal
division, right? So the cake-cutting example
doesn’t show you that equality is a good thing.
It presumes that you’ve already
decided equality’s a good thing and you want to get the person
to choose equality, right?
Then the other thing it assumes
is that people are going to behave self-interestedly,
right? When we give the person the
knife and say, “Divide it however you
like. You get the last slice,”
we’re assuming that she or he will want to get the biggest
possible slice. So immediately we’ve got two
assumptions built into there, one that equality’s a good
thing. That’s the result we actually
do want to get, and secondly that people are
going to behave in a self-interested way,
right? Which isn’t to say they’re bad
assumptions, but it’s to note that they are assumptions,
okay? Now, Rawls’ original position
has the same structure as the cake cutting for both of those
reasons. He has a distributive outcome
that he wants to convince you is a good thing,
and he’s going to create a hypothetical choice situation
that will lead you to it, right?
But that doesn’t itself
establish that it is a good thing.
You have to have some other
argument to convince you that it is a good thing,
and I’ll tell you what that argument is,
but it’s completely independent of this expository device that’s
modeled on the cake cutting. So the expository device that’s
modeled on the cake cutting goes like this.
It says imagine you had to
design a social order, a society in the broadest sense
of the word. It will include an economic
system, a political system and so on,
and you didn’t know whether you were going to turn out to be
rich or poor, male or female,
what race you were going to be, whether you were going to be an
athlete or a nerd. You didn’t have any particular
information about yourself, whether you’re going to have a
high IQ or a low IQ, musical, not musical,
good athlete, a bad athlete, nothing.
You didn’t have that kind of
information about yourself, which doesn’t mean that there
could be people who didn’t have those characteristics,
right? Just like say you had to design
the rules of chess and you didn’t know whether or not
you’re going to be good at using bishop,
better at using a bishop than using a knight,
but you had to agree on certain rules, okay?
So the rules for designing
society you’re going to choose while being ignorant of what he
calls particular facts about your circumstances.
You’re going to know only
certain pretty general things like he says,
“It’s a world of moderate scarcity.”
So it’s not superabundance,
which is a good thing, because we found out when we
studied Marx that there’s no coherent of superabundance.
Moderate scarcity,
it’s not a developing country, what we think of today as a
third world or developing country.
It’s basically principles for
countries of the sort we live in, okay, so moderate scarcity.
And we’re going to assume
certain basic what he calls laws of psychology and economics,
and I think that people largely behave self-interestedly is the
most important of those. But beyond that you’re not
going to have particular knowledge about yourself and
your circumstances. In particular,
sorry to use particular in two conflicting ways,
but in particular, you’re not going to have the
kind of knowledge that would allow you to bias things in your
own direction. So that if you knew you were
going to turn out to be female you could say women should earn
twice as much as men, but you’re not going to know
whether you’re going to turn out to be female or male.
So the kind of knowledge you’re
going to be denied is the kind of knowledge that would let you
bias things in your own favor, okay?
So that’s the sense in which
he’s trying to be Kantian. He calls his principles,
“procedural expressions of the categorical
imperative.” There’s a mouthful for you on
the first day back from spring break.
We know what the categorical
imperative is, right?
It’s the imperative to choose
things that are universalizable, things that you would will
regardless of the consequence, so things you would will from
every conceivable standpoint. And what Rawls is trying to do
when he says there’s a procedural expression of it,
what he’s trying to do is say, “Well,
if you don’t have knowledge of which kind of person you’re
going to turn out to be in terms of rich or poor,
or male or female, or black or white,
or Hispanic, or some other ethnic group,
or religious of some sort, or atheist,
you don’t know any of those things.
You’re going to have to think
about, what are the best social rules for people regardless of
who they turn out to be? And that’s the sense in which
he wants to think of himself as a Kantian.
So whereas for Nozick it’s sort
of just a slogan, for Rawls it’s really built
into the structure of his argument, okay?
And the idea of the original
position is to force us, even while recognizing we’re
self-interested, to force us to think about
society as a whole, to think about what would be
desirable regardless of who you turned out to be.
And so then the basic way the
book, if you had time to read the
whole book, the basic way the book proceeds
is he starts out with this complete veil of ignorance and
tries to get you to agree with him.
In this sense it’s not even
really a social contract. He’s not saying,
“Would you agree with one another?”
What he wants to say is,
“Will you, the reader, agree with me,
John Rawls, that any rational person would
choose the principles that I’m arguing for?”
In that sense he’s actually–we
can’t do it in this course because we didn’t read Hobbes,
he’s actually more like Hobbes than he is like Locke because
for Hobbes the social contract isn’t legitimate because anybody
made it, but because it must be rational
to make it. Any rational person,
says Hobbes, would agree to give up their
freedom to an absolute sovereign because anything else leads to
civil war and is just madness. So it’s a property of
rationality for Hobbes that people will accept the authority
of the sovereign. It isn’t really a contract.
Well, Rawls is more like Hobbes
on that point. He saying, “I, John Rawls,
want to persuade you, the reader, that any rational
person would choose my principles of justice over the
going alternatives,” because his style of thinking–
people go on and on about Rawls being abstract,
and an ideal theorist, and head in the clouds,
but actually his actual way of proceeding isn’t that.
It’s comparative.
Basically what he does is he
says, “Well, what are the going
alternatives?” There’s utilitarianism.
There are other ones you
haven’t read in this course. There’s perfectionism,
which is what he thinks of in Aristotle.
There’s Marxism.
“I want to show you that
my principle does better than the going alternatives from the
perspective of being behind this veil of ignorance.
If somebody else comes along
with another principle and shows that it does even better than
mine then I would give it up.”
So his basic mode of reasoning
is comparative, okay?
And so what he does is he has a
general principle of justice which he wants to persuade you
of first from behind this veil of ignorance,
and then more specific applications of it.
He ends up coming up with two
principles of justice that are the applications which are
really three principles, so I’ll go through them with
you. But as you went more and more
into the book he keeps adding information and lets you design
more specific institutions and so on,
always with the caveat that as you get more information later
you can’t go back and undo choices that you made earlier,
right? So it’s sort of like–I don’t
know if you’ve been around long enough to ever see Congress go
through a base closing exercise for the military where they
realize that there’s going to be special pleading from every,
you know, say they’re going to get rid of thirty military
bases. Every congressional district
that has a base in it is going to have good reasons why–
“Yes, we should get rid of 30 bases,
but not the one in our district, right?
We don’t want to stop making
submarines in Groton,” right?
Whatever it is.
And so what they do is they
create a commission that agrees on the base closing nationwide,
and they have to vote up or down on the entire package,
and then they can’t start undoing it later.
So this has a kind of structure
of a base closing commission that as the veil of ignorance
starts to be lifted, and then you discover well
actually I turn out to be female rather than male I can’t then
say, “Oh, well women should get
certain particular kind of advantage,”
right? So that’s the way the book
proceeds. Now I think one other reason I
should tell you about– or actually two reasons I
should tell you about, concerning why this book had
such a big impact, why this book has had the
staying power that it’s had. One is it’s really very much a
book of the 1960s and ’70s when there was,
to some extent, a crisis of confidence about
liberal democratic institutions born of the students’ movement,
and the Vietnam War, and everything that went with
it. That is to say there was a
generation of people who thought we needed to have critical
standards for evaluating government,
and utilitarianism, which was the main alternative
around, didn’t seem to provide them.
And Rawls came up with this
notion that we could come up with an independent standard for
judging, actually existing political
systems, and then use it to see how they
measure up. It wouldn’t have to be rooted
in natural law and all the problems that went with it.
It was going to be rooted in
this universal Kantian ideal, and it would give us principles
by which we could evaluate not only what our government does,
but other governments. So I think it was,
to some extent, the kind of thirst for criteria
that was characteristic of that era that gave Rawls his staying
power. But then I think the other
reason, the other reason that Rawls had
staying power was that he changed the subject that people
who had been squabbling about utilitarianism for 150 years had
been arguing about, because–and again,
you know this now because of the first half of this semester,
but utilitarianism had basically been struggling
between two variants. One, which we think of in the
terminology of this course as classical utilitarianism,
we might call objectivist where you make strong interpersonal
judgments of utility, and the problem with that as we
saw, and as Rawls says repeatedly in
his book, it doesn’t take seriously the
differences among persons. You could see this in the
utility monster example. You could see this in the
problems that we have with the bag lady and Donald Trump.
You can see this in problems
with the disabled. That if you don’t allow
interpersonal– I’m sorry, if you do allow
interpersonal judgments of utility you can do Draconian
things in the name of maximizing utility.
But if you say,
“No we’re not going to do that,” and you make the
neoclassical move, and you then say,
“We cannot even allow that taking a nickel from Trump and
giving it to the bag lady necessarily leads to an increase
in social utility,” then you seem to have the
opposite problem. So the objectivist problem is
it allows people to be used in the name of maximizing utility.
The subjectivist version,
the neoclassical version doesn’t seem to allow any
interpersonal judgments of utility.
Both are deeply morally
unsatisfying, and the proponents of each one
tend to make the case for their view mainly by pointing to the
demerits of the other view, right?
And they’re both right.
Both of these views have
serious demerits. And so part of what Rawls does
is he changes the subject. He changes the subject,
and he changes it in an interesting way.
He says, “Look,
the truth is we should be objectivist about some things
and subjectivist about other things.”
And what does he mean by this?
He says, “Look,
people are substantially alike on some dimensions and unalike
on other dimensions. There’s deep pluralism of
values, yes, but we basically have the same needs,
the same physiology. We tend to need the same kinds
of resources, so let’s focus on resources
rather than on utility. Let’s focus on some basic
resources that everybody needs regardless of whether they’re
going to be intellectuals, or artists, or sportsmen,
or sportswomen, or politicians.
There are certain things you’re
going to need more of rather than less of,
other things being equal, sort of instrumental goods you
could think of them as. And let’s focus on that.”
And especially in political
theory those are a good thing to focus on because after all,
we’re talking about what the state might or might not do.
And the state,
as we all know, acts with blunt instruments.
This idea of the government
sort of putting a utilitometer under people’s tongues to find
out what their utility is, apart from being technically
problematic, nobody wants that.
It’s morally undesirable.
So you have to think about the
state as something that acts with blunt instruments and you
can only really– if you want a realistic
political theory you should focus on some basic resources in
the society that the state could have some impact on.
So instead of various competing
definitions of utility or welfare Rawls says,
“Let’s change the subject to talking about resources that
have the quality (a) that they’re things that we could
really imagine the state dealing with,
and (b) that are instrumentally valuable to people no matter
what they turn out to want in life.”
So that’s a second reason he’s
important. Academics are not comfortable
unless they create an -ism word, so the -ism word is resourcism.
Rawls actually is saying
resourcism. Stop talking about welfarism.
Stop talking about utility,
or welfare, or the subjective experiences that people get,
but rather the resources that they have at their disposal.
So that’s a second reason,
I think, his views have had a lot of
staying power, and people who don’t like his
particular resourcist theory have nonetheless embraced other
resourcist theories, again, sort of in the wake of
Rawls, if you like.
Okay, so what is the basic idea?
What is the basic principle?
It’s his general conception of
justice, of which he says “All
social values,” by which he means resources as
I’ve just said it to you now, and he’s going to say that
there are three– well, he talks about liberties,
opportunities, income and wealth,
which he treats together. So that’s three,
and then a fourth one, the social bases of
self-respect, I’ll come back to all of that
in a minute– “are to be distributed
equally unless an unequal distribution of any or all of
these values is to everyone’s advantage.”
That is the basic idea.
All social values,
by which he means resources, should be distributed equally
unless an unequal distribution benefits everyone.
That is the first and most
general formulation of his principle.
So let me just backup a little
bit. I’ll go through liberties,
opportunities, income and wealth in more
detail starting in a minute. I’m just going to mention the
social bases for self-respect briefly and then not talk about
it anymore because of time limitations,
and because Rawls himself never says anything much about them,
and what he has to say I don’t think is very coherent.
So we’ll just forget about the
social bases of self-respect for the moment, maybe come back to
them later. But so here’s the thing,
“…are to be distributed equally unless an unequal
distribution works to everybody’s advantage.”

Now you might say,
“Why?” right?
And that’s the first question,
right? It’s the first question you ask.
And Rawls is not going to give
you a straight answer. There’s not a
“because” for the reason I said to you
earlier. His reasoning is comparative.
So he says, “Well,
you could say this is one candidate principle.
You bring another candidate
principle like say utilitarianism,
and we’ll look at both from behind the veil of ignorance and
see which makes more sense to pick,” okay?
So that’s the sense in which he
has a comparative-advantage argument,
not a knockdown philosophical demonstration from first
principles that this must follow.
So while I do want to say that
he thinks it follows from the nature of reason that you would
make this choice, it’s only a comparative choice
and somebody could come along with something else and convince
you that it does better than his principle and then he’d have to
accept that. So what he does,
and this is his resourcism in action, is he defines these
primary goods. Primary goods are these
instrumental goods, these things you would,
other things being equal, rather have more of than less
of. And the three we’re going to
focus on are liberties, opportunities,
and income and wealth. We’ll probably only manage to
deal with liberties today, but it’ll give you a flavor of
how his reasoning works. So, what are liberties?
Well, they’re pretty much the
sort of thing in the Bill of Rights,
in the American Bill of Rights: freedom of speech,
freedom of religion, freedom of association,
freedom, actually, to participate in democratic
politics is one that he talks about.
And his principle for the
distribution of liberties is, I just put it up there,
he says, “Each person is to have an equal right to the
most extensive system of total extensive”–
I told you he is ponderous, “…extensive total system
of liberties compatible with a similar system of liberty for
all.” Sounds like a lot of words not
saying very much, so let me show you why it says
more than it might appear to say at first sight.
Let’s take the example of
religious freedom. So let’s say,
“Well, should we have an established religion?”

How can we reason about this
from behind the veil of ignorance?
We don’t know,
once the veil of ignorance is lifted,
whether we’re going to be Christians,
or Jews, or Muslims, or atheists,
or agnostics, or something else, right?
We don’t know that, right?
So how should we think about
the question of whether there should be an established
religion? Well, and this is where one of
his conceptual innovations comes in.
He says, “The way to think
about it is from the standpoint of the most adversely affected
person,” because you don’t know who
you’re going to be. So for any principle if you
could say, “Well, if I was the most
adversely affected person by that principle,
and I would still choose it, then it starts to look like a
procedural expression of the categorical imperative,”
because if the person most disadvantaged by it would choose
it over the going alternatives then presumably everybody else
would, okay? And so this is a
misunderstanding of Rawls that people often get into.
He says at one point,
“If the standpoint of justice is the standpoint of the
least advantaged person,” but this is not a kind of
bleeding heart liberal point. He’s not saying the standpoint
of justice is the standpoint of the least advantaged person
because we should feel sorry for the least advantaged person.
That poor bag lady and that
rich Trump, isn’t that disgusting to contemplate?
That’s not his point.
It’s a self-interested point,
a completely self-interested point.
He’s saying,
“You figure out what you would choose in this situation
of turning out to be the most disadvantaged person.
That is the standpoint of
justice, not because we feel badly for the most disadvantaged
person, but because we want a
universalizable principle,” okay?
That’s the point.
As I said, it’s not a bleeding
heart point. It’s a self-interest point.
It’s self-interest in the
service of universalizability. It’s to get people to pick a
principle that they would affirm no matter what,
and that’s the sense in which Rawls thinks of himself as a
Kantian. Okay, now let’s come back to
religious freedom. Well, if we had an established
church and you turned out to be a member of the established
religion you would be completely happy,
but if we had an established church and you turned out to be
a non-believer, or a believer in a different
religion, you wouldn’t be happy, right?
You’d be less happy,
at least, than the person who turns out to belong to the
established religion. That part’s straightforward,
but that’s not the interesting comparison, it’s not the
illuminating comparison. So Rawls says,
“Think about it like this.
The question is whether or not
to have an established church, an established religion,
right? So think about the person who
is not a member of the established religion in a world
in which there is an established religion, right?
Versus the believer in a world
in which there is no established religion.”
Suppose you’re an atheist,
and you have no established religion, you’re happy,
but on the other hand the fundamentalist is unhappy,
right? But so for Rawls the relevant
comparison is would you rather be a fundamentalist in a regime
where there’s no established religion or a non-believer in a
regime where there is an established religion?
And his argument for
disestablished religion is that the believer in the
disestablishment regime has more religious freedom than the
nonbeliever in the established regime, right?
To make this concrete,
fundamentalists have more religious freedom in America
than non-fundamentalists have in Saudi Arabia or Iran.
So the reason to prefer
disestablishment of religion is that if you’re trying to
maximize the religious freedom of the least advantaged person
you have to look at the least advantaged person in all of the
possible regimes of governing religion, right?
And so the defense of the
establishment clause of the U.S.–he doesn’t talk about this
example, it’s my example, but it’s his logic,
right? If you said the Rawlsian
defense of the establishment clause of the
U.S. Constitution that’s what it would be.
Christian fundamentalists often
criticize the establishment clause, particularly the way
it’s been interpreted by the courts.
They say it’s presented as
neutral among religions and it’s not.
It’s not neutral because it
works, you know, people who think
there shouldn’t be an established religion,
get exactly what they want, but we who think there should
be, don’t get exactly what we want,
so it’s not neutral. Correct, they’re correct,
it’s not neutral. And Rawls actually contributes
to confusion here because sometimes he talks about his
theory as neutral. It’s not neutral.
And the requirement is not that
it should be neutral, but rather that it should give
the most extensive religious freedom to the person who’s most
disadvantaged in either system. So as I said,
the key point is that the believer has more religious
freedom if you have something like the U.S.’s establishment
clause than the nonbeliever has when you have a fundamentalist
regime. That’s the claim.
And so you want to give the
most extensive system of religious freedom compatible
with a like system for all, right?
And the way you get to
compatible with a like system for all is to look at it from
the standpoint of the most adversely affected person,
or the least advantaged person in any case.
So that’s the basic way in
which he reasons. And that’s why this sort of
rather empty-sounding phrase here that is his first principle
actually has more content than might appear to be at first
sight to be the case, right?
So it’s the standpoint of
justice is the standpoint of the most disadvantaged person not
because of being a bleeding heart,
but because you want a universalizable principle.
And it’s just the cake cutting.
You’re giving the knife to the
person who’s getting the last slice.
You say, “Pick the system
that will give you the most religious freedom when you later
discover what your beliefs are, right?
And that is the principle you
should affirm.” And that is why a religious
fundamentalist should choose the establishment clause of the U.S.
Okay, now somebody might come
along with some other principle and show that it does better and
then we’d have to go through the process again.
But so that’s the basic
structure of Rawlsian reasoning, if you like,
about principles of justice. Okay, we’ll pause there and
pick up on Wednesday.




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