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The Reasonable in Justice as Fairness

Published online by Cambridge University Press:  01 January 2020

Jon Mandle*
Affiliation:
State University of New York at Albany, Albany, NY 12222, USA

Extract

The publication of Political Liberalismhas allowed John Rawls to bring to the fore issues that remained in the background of A Theory of Justice. His explicit attention to the concept of ‘the reasonable’ is a welcome development. In a more recent publication, he affirms the importance of this concept, ‘while [granting] that the idea of the reasonable needs a more thorough examination than Political Liberalism offers.’ In this paper, I will present a critical exposition of the senses of the reasonable on which justice as fairness relies. Rawls employs the term in four main contexts. I will outline these various senses and argue that in each case, a controversy in the secondary literature can be resolved by close attention to the concept of the reasonable. In three of these contexts, Rawls relies on what I will call a ‘strong’ sense of the reasonable, while in one he sometimes seems to rely on a ‘weak’ sense. I argue that justice as fairness is best served by relying on a strong sense throughout.

Type
Research Article
Copyright
Copyright © The Authors 1999

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References

1 Rawls, John Political Liberalism (New York: Columbia University Press 1993)Google Scholar, referred to in the text as PL, and Rawls, John A Theory of Justice (Cambridge, MA: Harvard University Press 1971)Google Scholar, referred to in the text as TJ. Many critics seem to believe that justice as fairness has undergone a radical shift between the two books. An important subtext of this paper will be to highlight some of the substantial agreements between them.

2 Rawls, JohnReply to Habermas,’ The Journal of Philosophy 42.3 (1995), 150Google Scholar

3 This interpretation figures prominently, for example, in Wolff, Robert Paul Understanding Rawls (Gloucester, MA: Peter Smith 1990Google Scholar; originally published by Princeton University Press, 1977).

4 For an instructive discussion of the priority of right see Freeman, SamuelUtilitarianism, Deontology, and the Priority of Right,’ Philosophy and Public Affairs 23.4 (1994)CrossRefGoogle Scholar.

5 Rawls suggests that the distinction between the reasonable and the rational is to be found in Kant's distinction between the categorical and hypothetical imperatives. The terminology seems to have been introduced by Sibley, W.M. in ‘The Rational Versus the Reasonable,’ The Philosophical Review 62.4 (1953)CrossRefGoogle Scholar. Other discussions include Rescher, NicholasReasonableness in Ethics,’ Philosophical Studies 5 (1954)CrossRefGoogle Scholar; Richards, David A Theory of Reasons for Action (Oxford: Clarendon Press 1971)Google Scholar; Harrison, Jonathan Our Knowledge of Right and Wrong (New York: Humanities Press 1971)Google Scholar; Held, VirginiaRationality and Reasonable Cooperation,’ Social Research 44.4 (1977)Google Scholar; Darwall, Stephen Impartial Reason (Ithaca, NY: Cornell University Press 1983)Google Scholar.

6 Strictly speaking, Rawls says that ‘In justice as fairness the reasonable and the rational are taken as two distinct and independent basic ideas’ (PL, 51, my emphasis). He is aware that ‘In the history of moral thought some have tried to’ derive the reasonable from the rational, and he mentions David Gauthier as one author who has attempted to do this. While he rejects such a derivation, he does not attempt to argue directly against its possibility, allowing that ‘It may not be possible to prove that the reasonable cannot be derived from the rational’ (PL, 53). He does, however, offer something of a broadside: ‘Only as a result of philosophy, or a subject in which the rational has a large place (as in economics or social decision theory), would anyone think it necessary to derive the reasonable from the rational, moved by the thought that only the latter was intelligible’ (PL, 52).

7 See the valuable discussion in Cohen, JoshuaDemocratic Equality,’ Ethics 99.4 (1989)CrossRefGoogle Scholar.

8 On reflective equilibrium see TJ, 20, 21,48-51, 579; PL, 8, 28, 45, 72. See also Daniels, Norman Justice and Justification (New York: Cambridge University Press 1996)CrossRefGoogle Scholar.

9 See the discussion in Mandle, JonHaving It Both Ways,’ Pacific Philosophical Quarterly 75.3&4 (1994)CrossRefGoogle Scholar.

10 The passage continues by emphasizing that this is only appropriate for the choice of first principles of justice concerned with the basic structure of society: ‘Features relating to social position, native endowment, and historical accident, as well as to the content of persons’ determinate conceptions of the good, are irrelevant, politically speaking, and hence placed behind the veil of ignorance. Of course, some of those features may be relevant as decided by the principles of justice for our claim to hold this or that public office, or to qualify for this or that more highly rewarded position; and those features may also be relevant for our membership in this or that association or social group within society. However, they are not relevant for the status of equal citizenship shared by all members of society.'

11 Of course, on different theories of truth we may be doing additional things besides signaling endorsement when we use the term ‘true.’ We may be claiming, for example, that a sentence or a proposition corresponds in some way to an objective and independent realm.

12 Perhaps the closest Rawls comes in TJ to speaking of moral truth is in the following passage: ‘On a contract doctrine the moral facts are determined by the principles which would be chosen in the original position’ (TJ, 45). It is unclear whether he is here making a metaphysical point (that the moral facts are constituted by the choice from the original position) or an epistemic point (that we use the original position as a device to assess what the moral facts are). Note that in either case, even here he does not call the resulting conception ‘true.’ Cf. PL, 95.

13 Neal, PatrickDoes He Mean What He Says? (Mis)Understanding Rawls's Practical Turn,’ Polity 27.1 (1994), 81CrossRefGoogle Scholar. It is common in the secondary literature to assimilate the question of the truth of the principles and the question of the universality of their application. This seems mistaken. Without further explanation, it would seem that a conception of justice could be both true and limited in the scope of its application. Along with the agnosticism with respect to truth, in Political Liberalism, I take Rawls to be agnostic with respect to the question of the universality of the conception.

14 The independence of moral theory from such metaphysical concerns has been an important and explicit theme in Rawls's, work at least since his Presidential Address to the APA: ‘The Independence of Moral Theory,’ Proceedings and Addresses of the American Philosophical Association 48 (1975)Google Scholar.

15 Larmore, CharlesPolitical Liberalism,’ Political Theory 18.3 (1990), 354CrossRefGoogle Scholar, quoted in Neal, ‘Does He Mean What He Says?,’ 88Google Scholar. See also Larmore, CharlesPluralism and Reasonable Disagreement’, Social Philosophy and Policy 11.1 (1994), 63CrossRefGoogle Scholar: The principles of liberalism ‘are principles, however minimal, which we should regard as correct and not just widely shared …’

16 Neal, ‘Does He Mean What He Says?’ 89Google Scholar

17 Raz, JosephFacing Diversity: The Case of Epistemic Abstinence,’ Philosophy and Public Affairs 19.1 (1990), 910Google Scholar

18 Raz, ‘Facing Diversity,’ 15 n.34Google Scholar.

19 Raz writes: Rawls ‘is willing to contemplate the possibility that there are some who know what the true theory of justice is, and that it is incompatible with his. He is, in effect, arguing that such persons should nevertheless support his theory rather than the incompatible true theory, for his theory is the theory for us’ ('Facing Diversity,’ 15 n.34).

20 For the record, I believe that the term ‘true’ can appropriately be applied to moral claims. I, like Raz, on the basis of my own partially comprehensive philosophical doctrine, take Rawls's arguments for justice as fairness to be arguments for their truth. However, I also recognize that it is not unreasonable to dispute this view, and therefore on this issue, political liberalism (although not philosophy in general) should remain silent.

21 It seems clear that recasting this passage in the language developed in PL Rawls would speak of ‘public reason’ instead of ‘common sense.’ See also the reference to ‘evidence and ways of reasoning acceptable to all’ (TJ, 213).

22 To be sure, there are passages in which Rawls seems to embed the principles in a (partially) comprehensive doctrine. (See, for example, ‘The Kantian Interpretation of Justice as Fairness,’ TJ, sec.40.) As I show below, this type of embedding is not in itself objectionable. Rawls now seems to believe that TJ improperly relied on a comprehensive doctrine. (See PL, xvi.) I believe it does not have to be read that way. Barry, Brian has recently defended a similar view to mine in ‘John Rawls and the Search for Stability,’ Ethics 105.4 (1995)Google Scholar.

23 See PL, Lecture III, ‘Political Constructivism.'

24 See the discussion in Freeman, SamuelPolitical Liberalism and the Possibility of a Just Democratic Constitution,’ Chicago-Kent Law Review 69.3 (1994)Google Scholar.

25 Some critics have misinterpreted this point, believing that a conception of the good must be egoistic. But A Theory of Justice was already explicit on the matter: ‘While these plans determine the aims and interests of a self, the aims and interests are not presumed to be egoistic or selfish’ (TJ, 129).

26 Of course, there can be partially comprehensive doctrine as well as fully comprehensive views. See PL, 175.

27 Cohen, JoshuaMoral Pluralism and Political Consensus’ in The Idea of Democracy, Copp, David Hampton, Jean and Roemer, John eds. (New York: Cambridge University Press 1993), 281–2Google Scholar

28 In light of this understanding, the idea of reciprocity takes on special significance. See the discussion at PL, 16-18. Rawls discusses the natural duty of ‘mutual respect,’ an idea clearly similar to that of civility, at TJ, 337-8. Rawls also calls attention to the similarity between this understanding of the reasonable and Scanlon's ‘principle of moral motivation’ at PL, 49 n.2. See Scanlon, T.M.Contractualism and Utilitarianism,’ in Utilitarianism and Beyond, Sen, Amartya and Williams, Bernard eds. (New York: Cambridge University Press 1982)Google Scholar.

29 I discuss public reason below. For a discussion of the burdens of judgment, see PL, 54-8. For an instructive attempt to elaborate the epistemological basis for this idea, see Bird, ColinMutual Respect and Neutral Justification,’ Ethics 107.1 (1996)CrossRefGoogle Scholar.

30 Rawls, ‘Reply to Habermas,’ 134Google Scholar; see also 149-50.

31 One could, of course, build in to the idea of ‘critical reflection’ that one accepts the burden of judgments and treats others as free and equal, but then this would amount to accepting the ‘strong’ account which I am advocating.

32 Analogous arguments could be made with comprehensive doctrines which did not respect the burdens of judgment or treat other citizens as free and equal.

33 A (strongly) reasonable comprehensive doctrine is necessary but not sufficient for a person to be reasonable. Whether a person is reasonable or not may depend not only on the content of his comprehensive doctrine, but also on how it is held and how it is incorporated into the rest of his life and character.

34 Rawls, JohnThe Law of Peoples’ in On Human Rights: The Oxford Amnesty Lectures 1993, Shute, Stephen and Hurley, Susan eds. (New York: Basic Books 1993)Google Scholar. He claims, for example, that in a ‘the political institutions of a well-ordered hierarchical society constitute a reasonable consultation hierarchy …. Although in hierarchical societies persons are not regarded as free and equal citizens, as they are in liberal societies, they are seen as responsible members of society who can recognize their moral duties and obligations and play their part in social life’ (61-2). McCarthy, Thomas presents important criticisms of Rawls's use of a weak sense of the reasonable in his ‘On the Idea of a Reasonable Law of Peoples’ in Perpetual Peace, Bohman, James and Lutz-Bachmann, Matthias eds. (Cambridge, MA: MIT Press 1997)Google Scholar.

35 Rawls, ‘Reply to Habermas,’ 149Google Scholar.

36 This is only a first approximation of the idea of public reason. Note especially Rawls's contrast between the ‘exclusive view’ and the ‘inclusive view’ of public reason (PL, 247-54), as well as the more recent revisions described in Rawls's, Introduction to the Paperback Edition’ of Political Liberalism (New York: Columbia University Press 1996)Google Scholar. See also Solum, LawrenceInclusive Public Reason,’ Pacific Philosophical Quarterly 75.3&4 (1994)CrossRefGoogle Scholar.

37 This last proviso permits temporary violations, as it were, of the exclusive view of public reason to be redeemed at a later date. See ‘Introduction to the Paperback Edition,’ li-lii.

38 Government funding of the arts is (usually) an example of this. Therefore, advocacy of public spending on the arts based on particular aesthetic criteria that not all reasonable comprehensive doctrines share is perfectly acceptable. See Marneffe, Peter deLiberalism, Liberty, and Neutrality,’ Philosophy and Public Affairs 19.3 (1990)Google Scholar, and Mandle, ‘Having It Both Ways,’ 313–14Google Scholar.

39 Rawls, ‘Reply to Habermas,’ 143Google Scholar

40 Baier's, article is ‘Justice and the Aims of Political Philosophy,’ Ethics 99.4 (1989)CrossRefGoogle Scholar. On the development from a constitutional consensus to an overlapping consensus, see PL, 164-8. There are also relevant considerations in Cohen, JoshuaPluralism and Proceduralism,’ Kent-Chicago Law Review 69.3 (1994)Google Scholar.

41 See Rawls, ‘Reply to Habermas,’ 145Google Scholar

42 Macedo, StephenLiberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls?Ethics 105.3 (1995), 470CrossRefGoogle Scholar

43 Essentially this charge is made by Hampton, JeanThe Common Faith of Liberalism,’ Pacific Philosophical Quarterly 75.3&4 (1994), especially 208–11CrossRefGoogle Scholar. Hampton's essay was central in stimulating my thinking about this subject.

44 For an example of what such grounds might look like, see Lloyd, S.A.Relativizing Rawls,’ Chicago-Kent Law Review 69.3 (1994), 716–18Google Scholar.

45 To avoid confusion, I emphasize that I am not arguing that comprehensive doctrines that are only weakly reasonable should be excluded from an overlapping consensus, but only that it is unlikely that they could find a way to be part of one in their own terms.

46 See Rawls, JohnKantian Constructivism in Moral Theory,’ The Journal of Philosophy 77.9 (1980), for example, 569CrossRefGoogle Scholar.

47 Macedo, ‘Liberal Civic Education and Religious Fundamentalism,’ 474–5Google Scholar

48 Actually, this is a slightly misleading way of making the point. If an overlapping consensus requires the depth of commitment that Rawls demands, then the worry concerns the possibility of its achievement. It is not simply a matter of which comprehensive doctrines we label ‘reasonable.’ See note 45, above.

49 The phrase is from Macedo, ‘Liberal Civic Education and Religious Fundamentalism,’ 470.Google Scholar

50 Of course, this may be done in a subtle way. In particular, questions of civic education raise thorny issues in this area. See Macedo, ‘Liberal Civic Education and Religious Fundamentalism’ and Amy Gutmann, ‘Civic Education and Social Diversity’ and compare Galston, WilliamTwo Concepts of Liberalism,’ all in Ethics 105.3 (1995)CrossRefGoogle Scholar.

51 See Cohen, JoshuaA More Democratic Liberalism,’ Michigan Law Review 92.6 (1994), 1538CrossRefGoogle Scholar.

52 Waldron, Jeremy ‘Justice Revisited,’ Times Literary Supplement (18 June 1993), 5Google Scholar.

53 This does not, of course, mean that we abandon the liberal principle of legitimacy, which, recall, reads as follows: ‘our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason’ (PL, 137).

54 Brighouse, HarryIs There Any Such Thing as Political Liberalism?Pacific Philosophical Quarterly 75.3&4 (1994), 331 n.21CrossRefGoogle Scholar

55 Several critics register this complaint with Rawls's use of the reasonable. See, for example, Waldron, ‘Justice Revisited,’ 56Google Scholar; Galston, ‘Two Concepts of Liberalism,’ 519 n.14Google Scholar; and the discussion in Barry, ‘John Rawls and the Search for Stability,’ especially at 896–8Google Scholar.

56 Versions of this paper were read at Union College and Middlebury College. I would like to thank the following people for their comments: Kurt Baier, David Boonin, Samuel Freeman, Joe Gould, Jean Hampton, Jay Mandle, Joan Mandle, Thomas Pogge, John Rawls, Karen Schupack, Bonnie Steinbock, Sergio Tenenbaum, and two anonymous referees for this Journal.

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