IN PRAISE OF JOHN RAWLS,THE MAN WHO MADE MORAL PHILOSOPHY RESPECTABLE AGAIN--AND WHOSE VIEWS ALSO PROFOUNDLY INFORMED AMERICAN LEGAL THOUGHT

Philosopher John Rawls died last month. Many of the ideas that he championed--including, most famously, the principle that a just society should work to improve the lot of its least fortunate members--have fallen out of fashion. Nonetheless, Rawls remained the most important American philosopher since John Dewey. Indirectly, his views of how a democratic constitution secures justice have had a profound impact on American legal thought as well.

Rawls's Influence: Making Moral Philosophy Respectable Again

Philosophy means the love of knowledge, and to the ancients, the knowledge philosophers loved was all-encompassing. Socrates, Plato and Aristotle propounded theories about the nature of existence and how human beings should live.

So too, Enlightenment philosophers like John Locke and Immanuel Kant are as famous for their views on how to organize individual and social lives, as for their views on the organization of the material world.

Yet philosophy has long been losing turf. Science does a better job of describing the physical world than pure thought does. For example, Aristotle believed--relying on intuition and deduction--that objects in motion tend to come to rest, and that heavier objects fall faster than lighter ones. But Galileo, by contrast, proved these views wrong by systematic experiment and observation.

Meanwhile, philosophy's claim to speak to morality and ethics has declined as well. When philosophers shared a common set of religious assumptions, they could propound moral axioms as universal truths without paying much attention to the controversial nature of their axioms. The religious assumptions, however, are no longer shared.

Numerous factors--including the rise of Darwinian evolution, growing religious pluralism, and the secularization of universities--led to a separation of philosophy and religion. Yet, as contemporary philosophers such as Alasdair MacIntyre have persuasively argued, much of the structure of moral philosophy continued to rest on a religious foundation.

By the middle of the twentieth century, most philosophers had followed Ludwig Wittgenstein in taking a "linguistic turn" away from pondering the great questions of how to live our lives, and toward analyzing what it is that people mean when they use concepts like "good," "right," and "justice." Philosophical quandaries, in this view, were caused by confusion; by clarifying our concepts, philosophers could eliminate the confusion and thus the philosophical quandaries.

John Rawls changed all of that. He made moral philosophy respectable again. Rawls did not re-inject religion into philosophy. On the contrary, he began with the assumption of religious pluralism and asked how it is that people with vastly different conceptions of what it means to live a good life, can nonetheless treat each other fairly.

The Starting Point: The Original Position and the Veil of Ignorance

Rawls followed Kant in giving priority to the "right" over the "good." To lead a good life, according to Rawls, is to follow a comprehensive life plan of the sort that religions prescribe. In a pluralist society, however, people hold vastly different conceptions of a good life, and accordingly, if they are to live together in peace, they cannot each insist on using the state's resources and coercive power to further their particular conception.

Accordingly, Rawls argued that the state must remain neutral with respect to various conceptions of the good. People, as individuals and collectively acting through the state, are nonetheless obligated to treat one another fairly. In his seminal 1971 book, A Theory of Justice, Rawls defined justice as fairness.

But isn't fairness one of those moral concepts about which people disagree? Rawls thought not, and he made his point by borrowing (and modifying) a thought experiment used by social contract theorists like Locke.

Rawls asked what basic political arrangements people would choose if they were in the "original position" of establishing the basic structure of government. To prevent self-serving choices, he hypothesized that such a choice must be made behind a "veil of ignorance," which shields our constitution-makers from the knowledge of both their relative fortune and their conception of the good.

Someone in the original position could not choose laissez-faire capitalism on the ground that she is wealthy, or oppose a right of abortion on religious grounds. Behind the veil of ignorance, she would not know what her wealth or religion would be.

The Result: Constitutional Rights, and the Difference Principle

Using these relatively modest starting points, Rawls derived two sets of principles. First, he justified most of the familiar constitutional rights--freedom of speech, freedom of religion and conscience, a right against racial discrimination, rights to fair warning in criminal prosecutions, and so forth.

Second, and more controversially, Rawls argued that behind the veil of ignorance people would order the economy according to what he called "the difference principle." That principle states that inequalities in the distribution of society's material resources are acceptable only to the extent that they work to the advantage of society's least fortunate members.

What The Difference Principle Means

How can inequalities advantage the poor, as Rawls suggested? The simple answer is this: rough redistribution via taxation.

By contrast with extreme forms of socialism, the difference principle acknowledges basic human nature: If people are not permitted to keep some substantial fraction of what they earn, they will cease to work or they will take steps--like selling their labor on the black market--to avoid taxation. And without tax revenue to redistribute, the poor will not be helped.

Thus, rates of taxation cannot be set so high as to be self-defeating. However, the difference principle allows some modest reductions in the net store of wealth in the service of a more egalitarian distribution of resources.

Nozick's Criticism of the Difference Principle

A variety of criticisms of the difference principle have been offered. Perhaps the most famous was offered by Rawls's longtime colleague, Robert Nozick, who also died this year. In his book Anarchy, State and Utopia, Nozick argued that any political system that aims at a fair distribution of resources will end up unduly intruding into the lives of its citizens.

Given the fact of unequal distribution of talents and inclinations, inequalities of wealth are an inevitable product of free exchange. Even if we begin with an equal distribution of resources, people will, to use Nozick's most famous example, pay more money to watch a very proficient basketball player than to watch a clumsy oaf. As a result, in a short time the proficient player will end up wealthy relative to the oaf (assuming the oaf lacks some other proficiency that is in great demand).

At that point, redistribution would again be necessary, ad infinitum. So long as the conditions of exchange are fair, Nozick argued, there is nothing unjust about any particular distribution of resources.

Whether Nozick's criticism is fatal to Rawls's project is an open question. As a practical objection, it seems to miss the mark. A system of taxation that approximates the difference principle can be set up and then left to run its course without adjusting the framework each time a new transaction occurs.

But Nozick's objection is better viewed as a matter of basic morality than practicality. He denied Rawls's claim that the distribution of talents and inclinations should be regarded as a collective resource as a matter of principle: Talents and inclinations, he thought, belonged to the individuals who had them. (Nozick himself later softened his libertarian views, but others have continued to make his point forcefully.)

Should the unequal distribution of talents and inclinations be regarded as just hard luck for those holding the short end of the stick? I have my intuition about this question, and you probably have yours. Perhaps the best way to adjudicate the matter is to imagine ourselves behind the veil of ignorance in the original position.

Would People Behind the Veil of Ignorance Really Choose the Difference Principle?

But this brings us to another criticism of Rawls: how do we know that people would actually choose the difference principle behind the veil of ignorance?

To give an over-simplified example, suppose that, absent taxation, eighty percent of society would be either middle class or wealthy, while twenty percent would be poor. Suppose, further, that raising the condition of the poor to that of the poorest of the middle class would require a fifty percent reduction in the standard of living of the middle class and wealthy.

Given that choice, most people might choose to run the twenty percent risk that they will end up among the poor, rather than risk a fifty percent reduction in their standard of living in the four times more likely event that they end up middle class or wealthy. In short, they might let inequalities stand as they are, rather than reducing them to make sure they might not suffer them.

Obviously, given the great variety of possible tax schemes and their effects, whether people in the original position would choose the difference principle cannot really be known.

Still, it can be said in defense of Rawls that even if people might not choose the difference principle, they probably would not choose the current distribution of resources. In our society now, the top one percent of Americans have roughly forty percent of the nation's wealth, while the bottom fifty percent have only about three percent of the nation's wealth.

Behind the veil of ignorance, Rawls argued, people would not rationally bet so much on being in the top one percent, or even the top fifty percent.

How then do we explain the fact that our democracy--in which most people find themselves with only a small fraction of society's resources--does not yield greater redistribution? Rawls thought that this fact could only be explained by a political system corrupted by the impact of money.

The Methodological Legacy of Rawls: The Court's Reflective Equilibrium

Even if the difference principle has not fared well among our lawmakers, Rawls can be credited--at a minimum--with providing a strong justification for the method by which the United States Supreme Court reasons in controversial rights cases. Though the Court has never cited Rawls in its opinions, his logic is noticeably present.

Rawls thought that arguments based on comprehensive views about the good--such as those provided by religion--were inadmissible in debates about what fundamental rights people ought to have. But that leads to a vexing question: Without recourse to theological authority, how can people discern basic principles of justice? Of course, this is also a question relevant to the courts, which must call exclusively upon secular sources of law.

Rawls advocated a method he called "reflective equilibrium." We must ask of a moral theory how well it fits with and justifies the moral intuitions we consider unassailable--such as the proposition that slavery is wrong. When we do, some of our concrete moral intuitions will, upon close examination, conflict with one another. Thus, we will need to amend them in accordance with the theory, until finally an equilibrium is reached between the abstract theory and the concrete intuitions.

This process, Rawls thought, can be applied using only our intuitions about basic rights--without regard to religious or other comprehensive views about the good.

One can draw a strong parallel between the method of reflective equilibrium and the traditional common-law method of Anglo-American jurisprudence. In place of individual moral intuitions, substitute individual precedents. Just as reflective equilibrium will sometimes require the abandonment of an intuition, so the process of adjudication will occasionally require that past precedents be overruled.

Rawls's Influence on Dworkin, and the Problems with the Views of Both

In the legal academy, Ronald Dworkin is commonly credited with the view that judges should strive for a principle of "integrity" that both fits and justifies past decisions. Unsurprisingly, Dworkin's views are themselves strongly influenced by Rawls.

Both Dworkin and Rawls have been criticized on the ground that they take insufficient account of moral disagreement. With respect to Rawls, it was argued that despite the veil of ignorance, the people he placed in the original position held values remarkably like those of John Rawls.

To some extent, Rawls acknowledged this criticism. In his 1993 book, Political Liberalism, the theory of justice appears not as an account of any conceivable human society but of a Western democratic one in particular. In limiting his theory this way, Rawls acknowledged that to some extent, his theory had been fitted to the society in which he himself lived. With that modification, Rawls's views come even closer into line with our own constitutional culture.

For example, the Supreme Court will soon decide whether the Fourteenth Amendment's guarantee of "Equal Protection of the Laws" permits Michigan to give an advantage to members of traditionally disadvantaged groups in seeking a diverse university student body. It will also decide whether that same constitutional provision permits Texas to impose criminal penalties for "homosexual conduct."

In considering these issues, the Court will ask what it means for a society to treat people as free and equal citizens. However, in the spirit of Rawls's later work, the Court will not ask this question about any conceivable society. Rather, the Court's inquiry will focus on the values of a particular Western democracy--the United States in the Twenty-first Century.

A Personal Note: Rawls as a Professor

As an undergraduate in the 1980s, I had the good fortune to study with both Robert Nozick and John Rawls. Nozick was a gifted teacher. He did not so much lecture as think aloud. It was exciting to see him do philosophy on his feet.

Rawls was not, by conventional standards, a good classroom teacher. He spoke with a severe stutter and perhaps for that reason, he read his lecture notes aloud verbatim. Because Rawls also distributed these notes, there was, in principle, no reason to come to class. Yet such was the power of the man and his ideas, that the room was always packed.

In a moving eulogy in the New York Times, Martha Nussbaum wrote that "Rawls has sometimes been portrayed as a kind of natural saint." Perhaps, but as students in a large lecture class whose only interaction with Rawls occurred in the brief question-and answer period that followed each lecture, we could not discern much about his personal qualities.

We came and stayed for those lectures because we could tell, even through the stutter--perhaps in part because of the stutter--that John Rawls was a man for whom the basic questions about how to organize a just society were urgent business. We could use more people like Rawls in public life today.