Ever since the publication of A Theory of Justice,1 John Rawls has been modifying his conception of justice as fairness. He realized that the kind of stability that would be needed in a democratic society that is marked by a pluralism of reasonable, but comprehensive moral views was inconsistent with the account of stability given in Theory. In Theory, Rawls had conceived of his principles of justice as an alternative systematic conception that was superior to utilitarianism. (PL xv; Martin 737-8) But conceived in this way, justice as fairness turned out to be simply another reasonable comprehensive doctrine that was incompatible with other reasonable doctrines, such as utilitarianism and Kantian moral theory. This meant that the well-ordered society of justice as fairness was an unrealistic ideal for a democratic society. What Rawls came to realize is that the failure of Theory was that it did not distinguish between two very different kinds of moral conceptions: that of a comprehensive moral theory which addressed the problem of justice, and that of a political conception of justice that was independent of any comprehensive theory. (Martin 738)2 This distinction is crucial in understanding the transformations that have taken place in Rawls's theory of justice. But it is also the focus of his new book, Political Liberalism.3 In what follows I would like to explain this distinction and how it functions and shapes his new theory of justice.
The conditions of a comprehensive moral theory - and thus of a political conception of justice
Rawls regards a moral theory to be comprehensive when it satisfies the following conditions. First it must apply to a wide range of subjects. This is what makes it general. It becomes comprehensive "when it includes conceptions of what is of value in human life, as well as ideals of personal virtue and character, that are to inform much of our nonpolitical conduct...." (PL 175) A political conception, on the other hand, differs from a general and comprehensive theory because "it is a moral conception worked out for a specific subject...." (PL 175) In this case, the subject is the basic structure of a democratic society. But a political conception has two other important and distinctive features. One is that in accepting a political conception a person is not committed to any deeper comprehensive theory or doctrines. The other is that a political conception has its basis in certain fundamental ideas "latent in the public political culture of a democratic society." (PL 175)
The political conception of justice and the problem of political stability
These features of a political conception of justice are the basis for how Rawls proposes to solve the problem of political stability. Since a political conception of justice has its basis in ideas that are "latent in the public political culture," it is noncontroversial in nature. It is possible for persons with conflicting, but reasonable comprehensive views to agree that it should be the account of justice that is most compatible with their own views. As such the political conception would then be the object of an overlapping consensus about justice. (PL 15)
But what are these latent ideas? According to Rawls there are three fundamental ideas underlying a democratic society. The 'central organizing idea' is that of "society as a fair system of cooperation over time, from one generation to the next." (PL 14) It is accompanied by two companion ideas: the idea of citizens as free and equal persons, and the idea of "a well-ordered society as a society effectively regulated by a political conception of justice." (PL 14) To these Rawls adds the idea that a political conception has as its subject the basic structure of a society. (PL 11, 14) Finally Rawls completes his set of fundamental ideas by introducing the idea of the original position. Now this idea differs from the other members of this set in that it is not necessarily latent in the public political culture. Rather it is regarded as necessary as a mediating model that integrates the other fundamental ideas into a coherent scheme of justice.
Resulting Changes from Theory of Justice
This marks a change in the role of the original position as it was introduced in Theory. In Theory, the original position not only justified the principles of justice. It also specified the political setting that would give rise to the democratic institutions that would be necessary in justice as fairness. (Theory chap. 2; Martin 749-50) In Political Liberalism, the original position has a more modest task. It seeks to show that only a specific set of principles is compatible with the fundamental ideas implicit in a democratic society marked by the fact of reasonable pluralism. (PL 22-9)
This change in the role of the original position means that there is also a change in the process of justifying justice as fairness. It is now a two-stage process. (PL 14-5; 134; Martin 748) Recall that the original position now has the less ambitious task of specifying that justice as fairness is the only conception that is fully compatible with the fundamental ideas of a democratic society. But even though this is a more modest task, it is still a very important one. For in showing that justice as fairness is the most compatible conception, Rawls has shown that it is also a 'freestanding view,' one that is independent of any comprehensive moral theory or doctrine. (PL 10, 40, 144) This independence means that it can also be linked to a variety of reasonable comprehensive views.
Political stability and the further need for "overlapping consensus"
But this is still not sufficient to solve the problem of stability mentioned at the outset. Rawls must go one step further and show that his political conception would be preferred by reasonable persons over any other political conception. Rawls argues for this point by introducing the idea of an overlapping consensus. (PL 15, ) An overlapping consensus "consists of all the reasonable opposing religious, philosophical, and moral doctrines likely to persist over generations and to gain a sizable body of adherents in a more or less just constitutional regime, a regime in which the criterion of justice is that political conception itself." (PL 15) The necessity of an overlapping consensus arises because those with comprehensive moral views must seek some common ground for reaching consensus about principles of justice. The actual circumstances of living in a democratic society then provide individuals with the motivation for accepting a political conception that is not in conflict with each other's comprehensive views. (PL 134) Rawls's political conception is noncontroversial for two reasons. The first is that because it has its basis in the fundamental ideas of a democratic society that all citizens share, it is acceptable to the wide variety of comprehensive views. The other reason is that the political conception makes no controversial claims about any reasonable comprehensive views. It is neither skeptical nor indifferent to the claims made by these views. Instead it seeks to provide a basis for citizens to determine what issues can be removed from the political agenda and those that cannot. (PL 151-2) Given these considerations, Rawls claims that his principles of justice would then be the object of an overlapping consensus by those persons holding reasonable, but incompatible comprehensive views.
Overlapping consensus vs. modus vivendi
In order to better understand the idea of an overlapping consensus Rawls contrasts it with another way of reaching agreement on a political conception, that of a modus vivendi. Rawls sees that one objection to his theory is that it appears to be a consensus based on self-interest rather than on the principles of justice. In fact with the more subdued role of the original position such an interpretation is likely. A social consensus based upon a modus vivendi occurs when the various parties find it to be in their own self-interests to abide by the conditions of a contract or treaty. But the problem is that such an agreement lacks any principled basis. The parties to the agreement are ready to abandon the agreement and to pursue their own interests the minute that any one of them thinks that they can better their position at the expense of the others. The overlapping consensus differs in two crucial respects from a modus vivendi. First the object of the consensus is a moral conception. And second, an overlapping consensus is affirmed on moral grounds, not on those of self-interest. (PL 147) "An overlapping consensus, therefore, is not merely a consensus on accepting certain authorities, or on complying with certain institutional arrangements, founded on a convergence of self- or group interests. All those who affirm the political conception start from within their own comprehensive view and draw on the religious, philosophical, and moral grounds it provides." (PL 147) The solution to the problem of stability is found in the convergence of the various moral and religious views, each of which accepts the political conception from within their own comprehensive views. (Martin 743)
Changes in the two principles of justice
In addition to the changes in the process of justifying justice as fairness, there are some significant changes in Rawls's views of the two principles of justice. Here is how they are stated in Political Liberalism:
Let me take up the second principle first. The formulation of it in Political Liberalism is virtually unchanged from Theory. But throughout Political Liberalism there is virtually no discussion of the second principle. (Martin 744-5) While this is a significant omission it does not appear to affect the overall role of this principle in his theory of justice.
The most significant changes are in the content of the first principle. In Theory Rawls states the first principle as follows: "Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all." (Theory 302) In Political Liberalism Rawls alters the beginning of the first principle by replacing the phrase "each person has an equal right" to "each person has an equal claim." He also replaces the phrase "system of basic liberties" with the phrase "a fully adequate scheme of equal basic rights and liberties." What is most unsatisfying about these changes is that Rawls fails to explain these changes and how they affect his conception of justice. For example, does Rawls now acknowledge that there are certain rights and liberties that are more fundamental than others when he claims that the only the political liberties are to be given their fair value? What is his basis for determining that the political liberties have priority here? (Martin 745-7)
Rawls's Political Liberalism is a rich and suggestive account of how to justify a scheme of principles for ordering the basic structure of society. Clearly no one else has produced a work that matches the scope of Rawls's theory. But it still leaves us with some pressing problems. One of the problems that Rawls must answer is that of providing a critical justification. By calling justice as fairness a political conception Rawls has abandoned the attempt to provide such a critical justification. But in doing so, one has to wonder what reasons one would have to ultimately accept the political conception, other than merely pragmatic ones. (Martin 760) Another problem that Rawls's theory presents is that it is not clear that justice as fairness would be able to achieve an overlapping consensus of reasonable comprehensive views. For example, it is not clear that utilitarians could ever accept Rawls's priority of the first principle over the second. (Martin 757-60) In the end Rawls's new theory has not brought us any closer to a resolution of the issues that he has raised over the past twenty-five years. But Political Liberalism is still an important work in contemporary political philosophy - one rivaling that of A Theory of Justice. (t.v.)
1 John Rawls, A Theory of Justice, Cambridge, MA: Harvard Press, 1971. Cited in text as Theory.
2 Rex Martin, "Rawls's New Theory of Justice," Chicago-Kent Law Review, Volume 69: 737-761, 1994. Cited in text as Martin.
3 John Rawls, Political Liberalism, New York, NY: Columbia University Press, 1993. Cited in text as PL.
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