The Political Meaning of the Right and the Privatization of the Good

E-Theologos, Vol. 2, No. 1 DOI 10.2478/v10154-011-0002-5

Piotr Andryszczak The Pontifical University of John Paul II in Cracow

In our very pluralistic world one question seems to be very relevant and at the same time urgent: how to build a stable and just political society when the people sharply disagree about important moral and religious issues. There is a very influential current in today’s liberalism called procedural which makes an attempt to resolve this extremely difficult problem. The core of the solution contains formula: the priority of the right over the good. So let’s look at it more closely using as an example a lead- ing liberal theorist, i.e. John Rawls and his two propositions of justification of that formula. The first of them we find in his book A Theory of Justice.

1. The first attempt - A Theory of Justice To constitute a stable and just society we should start from so called original position. “It is understood as a purely hypothetical situation charac- terized so as to lead to a certain conception of justice” 1. So it is not about an actual historical state of affairs or a primitive condition of culture. The original position is a philosophical idea that “corresponds to the state of nature in the traditional theory of the social contract” 2. In Rawls’s opinion people are individuals and as such they are willing to build a just society. In order to do this in the original position they are situated behind the veil of ignorance. Therefore we have to pose now two crucial questions: What informa- tion does the veil exclude and why? Rawls makes it very clear that “among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities” 3.

1 J. Rawls, A Theory of Justice, Cambridge, Mass.: Harvard University Press, 1999, p. 11. 2 Ibid. 3 Ibid.

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In the first place, then, we do not know if we are going to be rich or poor in the society which our social contract will found. We are also de- prived of the knowledge regarding our position in society, whether we will be at the top or the bottom of the social ladder. We do not know any- thing about our natural endowments that would help us achieve wealth and privileges. At this point we should return to the question why this kind of ignorance is so important for our goal to construct a just human order? Owing to this ignorance the individuals are regarded as equal. It contains an intuitive and fundamental appeal. “There is a sense in which we think that, since people are not responsible for the fact that they were born into one family rather than another, or for the fact that they are tal- ented or untalented, it should be the aim of a theory of justice to take no account of such differences. If I cannot be said to deserve my talents, how can I deserve the advantage that they can bring me?” 4. According to Rawls in this way we leave aside those features “of the social world that seem arbitrary from a moral point of view” 5. In the real world situation is totally different because anybody knows his position and can use it for his benefits. What happens behind the veil of ignorance is similar to a man who is to divide a cake and get the last piece. In order to assure for himself the largest share possible he will divide the cake equally 6. Since he does not know who he will be in the real society, he does his best to promote in the real world the ideal of equality. The ignorance about his own position is a sort of instrument to make impossible to anybody to arrange a society in the way that favors that position. In addition to equality in the original position freedom is crucial. Be- hind the veil of ignorance individuals must be not only equal, but also free. What makes us free? We are free because we are denied knowledge of our conceptions of the good, i.e. we do not know how we should lead our lives. What is the link between ignorance of conceptions of the good and the freedom? If people knew their own conceptions of the good they would arrange society to promote them and therefore they would try to impose on others what according to them makes a life valuable. Yet for Rawls at this point it is not important that the people make right decisions but that they make their own decisions. “Of fundamental importance of the Rawlsian scheme are not the conceptions of the good that the people have but something that lies behind such conceptions, their freedom to decide upon their own conceptions of the good, to act upon, and to change those decisions” 7. The knowledge of the good represents a danger to the freedom and the ignorance of that guarantees the freedom for thanks to that individuals

4 S. Mulhall, A. Swift, Liberals and Communitarians , Oxford: Blackwell Publishers, 1996, p. 4. 5 J. Rawls, A Theory of Justice , p. 14. 6 Ibid., p. 74. 7 S. Mulhall, A. Swift, Liberals and Communitarians , p. 6.

16 E-Theologos, Vol. 2, No. 1 DOI 10.2478/v10154-011-0002-5 choose the principle of liberty as the first principle of the just society, which says that “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” 8. While the second principle of justice deriving from the people in the original position’s ignorance of their social position and natural endowments is as follows: “Social and economic inequalities are to be arranged so that they are both: a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and b) attached to offices and positions open to all under conditions of fair equality of opportunity” 9. Thus free and equal persons choose the principles that are to arrange the just social system. That’s why the just society emerges as a result of the social contract of the people. They can choose fair or just principles to regulate their society because of their significant ignorance. The principles of justice represent in fact the principles of right which “put limits on which satisfactions have value; they impose restrictions on what are reasonable conceptions of one’s good” 10 . Thus the fundamental point of his theory of justice is that “the concept of right is prior to that of the good” 11 . Right is what the principles of justice command because they express freedom and equality of persons who choose them. However in those principles there is no place for the good since any person has his or her own conception of the good and therefore those conceptions are different and controversial by reason of their particularity. The principles of justice should be what we have in common, whereas the conceptions of the good have one essential quality: they are individual. The presence of the good in the content of the principles of justice would mean an attempt to create what is to be universal on the basis of what is particular. That would be in effect equivalent to imposing by some people their own conception of what makes life worthwhile on all members of society. On account of situ- ating the persons in the original position behind the veil of ignorance the principles of justice do not impose any vision of the good life, but only specify the boundaries which any member of society must respect and within those boundaries anybody can pursue any conception of the good. In this way the right does not derive from the good but is prior to it. The social philosophy that contains at its heart the idea of the priority of the right over the good has its roots in the particular conception of the person. The right can be prior to the good “only if the self is prior to its ends” 12 . An individual choosing a just organization of society behind the

8 J. Rawls, A Theory of Justice , p.266. 9 Ibid. 10 Ibid., p.27. 11 Ibid., p. 28. 12 M. J. Sandel, The Procedural Republic and the Unencumbered Self , in: S. Avineri, A de-Shalit (ed.), Communitarianism and Individualism, Oxford: Oxford University Press, 1992, p. 19.

17 E-Theologos, Vol. 2, No. 1 DOI 10.2478/v10154-011-0002-5 veil of ignorance is an example of the unencumbered self. “The unencumbered self describes first of all the way we stand towards the things we have, or want, or seek. It means there is always a distinction between the values I have and the person I am . To identify any characteristics as my aims, ambitions, desires, and so on, is always to imply some subject ‘me’ standing behind them, at a certain distance, and the shape of this ‘me’ must be given prior to any of the aims or attributes I bear. One conse- quence of this distance is to put the self itself beyond the reach of its ex- perience, to secure its identity once and for all. Or to put the point another way, it rules out the possibility of what we might call constitutive ends. No role or commitment could define me so completely that I could not understand myself without it. No project could be so essential that turning away from it would call into question the person I am” 13 . For the Rawls’s theory of the person it means that the identity of an individual who is situated in the Rawls’s state of nature is determined only by his or her capacity to choose the ends but not by the ends which are actually chosen. Our specific choices do not have any influence on what we are. In brief, they are solely mine, but never me. In Rawls’s view “it is not our aims that primarily reveal our nature but rather the principles that we would acknowledge to govern the background conditions under which these aims are to be formed and the manner in which they are to be pur- sued. For the self is prior to the ends which are affirmed by it (…) We should therefore reverse the relation between the right and the good pro- posed by teleological doctrines and view the right as prior” 14 . Undoubtedly this move has Kantian foundations because we easily discover at this point an influence of Kant’s notion of the subject. Since the moral law should have not a contingent, but a categorical foundation, Kant’s transcendental subject is completely independent of human natural and psychological inclinations and unconditioned by circumstances. Oth- erwise I would be an empirical being, incapable of freedom, because “every exercise of will would be conditioned by the desire for some ob- ject. All choice would be heteronomous choice, governed by the pursuit of some end. My will could never be a first cause, only the effect of some prior cause, the instrument of one or another impulse or inclination” 15 . In this situation a person becomes a subject incapable of an autonomous will and for this reason he cannot be a source of the moral law. It is absolutely obvious for if a man is conditioned by his natural and psychological inclinations or circumstances he capitulates to determinations outside his reason and at the same time rejects freedom. If we want to give ourselves a

13 Ibid, p. 18. 14 J. Rawls, A Theory of Justice , p. 491. 15 M. J. Sandel, The Procedural Republic and the Unencumbered Self , p. 17.

18 E-Theologos, Vol. 2, No. 1 DOI 10.2478/v10154-011-0002-5 universal moral law we have to refer to the reason rather than to the particularity of inclinations or circumstances. Certainly the Kantian conception of the person supports the priority of the right over the good. In his conception of the person Rawls preserves the fundamental idea of Kant but “in order to work out a Kantian conception of justice it seems desirable to detach the structure of Kant’s doctrine from its background in transcendental idealism and to give it a procedural interpretation by means of the construction of the original position. (This detachment is important if for no other reason than that it should enable us to see how far a procedural interpretation of Kant’s view within a reasonable empiricist framework is possible)” 16 . Now we see better the role of the original position. Transcendental idealism is too obscure to Anglo-American temper so it was necessary to recast the essence of Kant’s doctrine within something more congenial to Anglo-Saxon mentality, i.e. within a framework of a reasonable empiricism. Indispensable for that was an imaginary situation of the original position. It brings about that the subject of Rawls is an unencumbered self. For the unencumbered self it is not important that good or another which the subject chooses since the knowledge about the good lies behind the veil of ignorance. However what is important for the unencumbered self, as in the case of transcendental subject, is our capacity to choose, our freedom to decide upon our own conceptions of the good. Thus we can reveal our autonomous will because it brings about that the liberal selves and nobody apart from them are “self-originating sources of valid claims” 17 . Whatever our conceptions of the good are, they are valid just for one reason: because we chose them (provided they are not unjust). We see then that the society emerging in basis of the consistent realization of the principle of the priority of the right over the good is being built by people who have characteristic features. The principles of justice in Rawls’s view expressed in A Theory of Justice, can be chosen solely by those whose identity is not determined by their aims since they are able to stand always at a distance from their own ambitions and commitments. In order to achieve self-realization they do not need community, tradition, culture, and history because they are independent of those exterior fac- tors. What belongs to the sphere of their identity is only the capacity to choose but it does not belong to it any good to which that capacity is pay- ing attention here and now. Certainly the position which expresses the approach of the procedural liberalism to the problem of a just organization of society seems to be a very attractive proposition. Its strength lies first of all in its liberating prom-

16 J. Rawls, Political Liberalism , New York: Columbia University Press, 2005, p. 285. 17 J. Rawls, Kantian Constructivism in Moral Theory: The Dewey Lectures 1980, “Journal of Philosophy”, 77 (1980), 543.

19 E-Theologos, Vol. 2, No. 1 DOI 10.2478/v10154-011-0002-5 ise. A man does not have to be tied to the particularity both his personal inclinations and socio-cultural conditions. The original position and the veil of ignorance give him freedom and not only freedom but also, and in that is the second reason for the attractiveness of the liberal proposition, hope for constituting the just social order. In spite of that Rawls himself conceived that his proposition has at least one significant weakness.

2. The second and last attempt – Political Liberalism Rawls understood that his conception of justice as fairness, as put forth in A Theory of Justice , could be accepted only by Liberals. This led him to conclusion that a well-ordered or just society built on it would not be stable because he defended his liberalism or the claim for the priority of the right over the good by defending the Kantian conception of the person. In this way his argument for liberalism and its vision of just organization of social life depends on controversial claims about the nature of the liberal subject. The people who refuse the Kantian moral philosophy cannot accept Rawls’s principles of justice. Having become aware that his conception could be accepted solely by Kantian Liberals, he took into consideration “the fact of reasonable pluralism” 18 . There is a permanent feature of free and democratic societies that their citizens have very different conceptions of life, person and good. The pluralism is not a simple diversity but is something reasonable. As Rawls put it: “the diversity of reasonable comprehensive religious, philosophical, and moral doctrines found in modern democratic societies is not a mere historical condition that may soon pass away; it is a permanent feature of the public culture of democracy. Under the political and social conditions secured by the basic rights and liberties of free institutions, a diversity of conflicting and irreconcilable – and what’s more, reasonable – comprehensive doctrines will come about and persist if such diversity does not already obtain” 19 . According to Rawls this kind of pluralism is something reasonable because here the conflicting opinions are not led by logical errors, group interests or prejudice. The reason for that is completely different. The sources of reasonable pluralism are “the burdens of judgment. The account of these burdens must be such that it is fully compatible with, and so does not impugn, the reasonableness of those who disagree. What, then, goes wrong? An explanation of the right kind is that the sources of reasonable disagreement – the burdens of judgment – among reasonable persons are the many hazards involved in the correct (and conscientious) exercise of our powers of reason and judgment in the ordinary course of

18 J. Rawls, Political Liberalism , p. 36. 19 Ibid.

20 E-Theologos, Vol. 2, No. 1 DOI 10.2478/v10154-011-0002-5 political life” 20 . In Political Liberalism we come across the list (incomplete) of burdens of judgment. Among them we find for example that the empirical and scientific evidences are hard to evaluate since they are conflicting and complex; the all concepts we use, then also moral and political ones are vague and therefore their indeterminacy means that there are some areas where reasonable people may differ 21 . It is unnecessary to multiply instances of the burdens of judgment, however what is indispensable, is to draw one inescapable conclusion from the existence of the burdens of judgment: we as members of the free and democratic societies disagree not solely in an unreasonable way because of bias, blindness or willfulness, but our disagreement may have and actually does have a reasonable form and the burdens of judgment are the sources of reasonable comprehensive doctrines. Those doctrines are fruits of an exercise of theoretical reason which seeks to give a man answers in a consistent and coherent way to questions regarding religious, philosophical, and moral aspects of his life. Be- sides, the reasonable comprehensive doctrines are also the work of practi- cal reason which gives us an indispensable hierarchy of values and thanks to it an effective means to resolve our moral dilemmas. And “finally, a third feature is that while a reasonable comprehensive view is not neces- sarily fixed and unchanging, it normally belongs to, or draws upon, a tradition of thought and doctrine” 22 . Any adherent of reasonable comprehensive doctrine is fully aware that apart from his view exist other equally reasonable doctrines that in conse- quence of the burdens of judgment are not irrational or biased. In the face of adherents of other reasonable comprehensive doctrines we should take only one appropriate attitude, an attitude of dialog and persuasion. It flows form a crucial feature of those doctrines: they are affirmed by reasonable persons. Rawls clearly distinguishes the reasonable from the rational. The latter “applies to a single, unified agent (either an individual or corporate person) with the powers of judgment and deliberation in seek- ing ends and interests peculiarly its own. The rational applies to how these ends and interests are adopted and affirmed, as well as to how they are given priority” 23 . Then, the rational person has his own ends and hopes to advance them. To put it in different terms, the rational people have their own conceptions of the good and seek to realize them. For this reason the rational is something totally private. The reasonable instead means to be ready to propose some conception of justice which can regulate social cooperation if others are eager to re-

20 Ibid., pp. 55-56. 21 Ibid., p.56. 22 Ibid., p. 59. 23 Ibid., p. 50.

21 E-Theologos, Vol. 2, No. 1 DOI 10.2478/v10154-011-0002-5 spect it. The reasonable persons “are ready to propose principles and stan- dards as fair terms of cooperation and to abide by them willingly, given the assurance that others will likewise do so. Those norms they view as reasonable for everyone to accept and therefore as justifiable to them; and they are ready to discuss the fair terms that others propose” 24 . They possess the particular form of moral sensibility that invites them to participate in a just cooperation with others on terms all can accept. By this means the reasonable is not focused on the sphere of private interests but becomes public since it means a readiness to work out the framework for the public social world. If the reasonable disappears, then “rational agents approach being psychopathic, when their interests are solely in benefits to themselves” 25 . A simple opposition to a reasonable comprehensive doctrine is an unreasonable one. Its adherent is convinced that he possesses an absolute truth and as its owner can and should impose it on others. He is then in- clined to use political power in order to achieve such a noble goal. Other comprehensive views are not partners in discussion. They are wrong and as such should be repressed and eliminated. An unreasonable person is unable to accept the consequences of the burdens of judgment that “set limits on what can be reasonably justified to others, and so they endorse some form of liberty of conscience and freedom of thought” 26 . What then in the atmosphere of freedom may the individuals do if they want to provide a solid foundation for a stable und just society? The reasonable people have one thing in common: they refuse to use political power against similar to them, reasonable persons and despite that similarity they are distinct because they possess different conceptions of life, person, and world. Can we apart from this negative feature indicate a positive area for them and their meeting? “How is it possible – asks Rawls – that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines?” 27 . It turns out to be possible and it does not have to be based on a mere pragmatic modus vivendi. A stable and just society is built by every citizen who in regard to a problem of political cooperation is able to refuse to take sides in the moral, meta- physical, and religious controversies and can work out a political conception of justice which are the features as follows: “first, that it is a moral conception worked out for a specific subject, namely, the basic structure of a constitutional democratic regime; second, that accepting the political conception does not presuppose accepting any particular comprehensive religious, philosophical, or moral doctrine; rather, the political conception

24 Ibid., p. 49. 25 Ibid., p. 51. 26 Ibid., p. 61. 27 Ibid., p. XVIII.

22 E-Theologos, Vol. 2, No. 1 DOI 10.2478/v10154-011-0002-5 presents itself as a reasonable conception for the basic structure alone; and third, that it is not formulated in terms of any comprehensive doctrine but in terms of certain fundamental ideas viewed as latent in the public political culture of a democratic society” 28 . It follows from the above-mentioned quotation that political conception of justice does not regulate how to arrange all the institutions of the democratic state. Its specific subject is “the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation” 29 . By major institutions Rawls understands “the political constitution and the principal economic and social arrangements. Thus the legal protection of freedom of thought and liberty of conscience, competi- tive markets, private property in the means of production, and the mo- nogamous family” 30 . That’s why for example churches and universities, which do not belong to the basic structure of society, do not have to distribute goods according to the political conception of justice. It turns out also that the political conception of justice does not de- pend for its justification on any particular comprehensive religious, philosophical, or moral doctrine. Therefore it is seen as “a freestanding view” 31 . Since Rawls presented it as a freestanding view, he was forced to reinterpret his versions of liberalism put forth in A Theory of Justice . “Cen- tral to Rawls’ revised view – writes Sandel - is the distinction between political liberalism and liberalism as part of a comprehensive moral doctrine. Comprehensive liberalism affirms liberal political arrangements in the name of certain moral ideals, such as autonomy, individuality, or self- reliance. Examples of liberalism as a comprehensive moral doctrine in- clude the liberal visions of Kant and John Stuart Mill” 32 . And one more instance of comprehensive liberalism we find in A Theory of Justice as Rawls himself acknowledges: “An essential feature of a well-ordered society associated with justice as fairness is that all its citizens endorse this conception of the basis of what I now call a comprehensive philosophical doctrine”Since33 our. philosophical views divide us because, as we know, reasonable persons have conflicting and incompatible reasonable comprehensive doctrines and liberalism presented in A Theory of Justice is one of them, then in Rawls’s opinion his reinterpretation of justice as fairness called “political” requires one thing: “to attain such a shared reason, the concep-

28 Ibid., p. 175. 29 J. Rawls, A Theory of Justice , p. 6. 30 Ibid. 31 J. Rawls, Political Liberalism , p. 10 32 M. J. Sandel, Liberalism and the Limits of Justice, Cambridge: Cambridge University Press, 1998, p. 189. 33 J. Rawls, Political Liberalism , p. XVI.

23 E-Theologos, Vol. 2, No. 1 DOI 10.2478/v10154-011-0002-5 tion of justice should be, as far as possible, independent of the opposing and conflicting philosophical and religious doctrines that citizens affirm. In formulating such a conception, political liberalism applies the principle of toleration to philosophy itself” 34 . Now justice as fairness should be conceived “as a form of political liberalism” 35 and hence we are not to look for one true comprehensive philosophical doctrine but for something what we have in common. This reveals us the third feature of political conception of justice. It is about formulating political conception of justice in basis of fundamental ideas latent in the democratic culture of our society. About the first of them Rawls writes as follows: “the fundamental organiz- ing idea of justice as fairness (…) is that of society as a fair system of cooperation over time, from one generation to the next. We start the exposi- tion with this idea, which we take to be implicit in the public culture of a democratic society” 36 . Besides that idea we discover in the public culture of our society another one that equals to a certain vision of person according to which people should be regarded as free and equal. Hence, we start from a common conviction, present in these fundamental ideas shared by us and which we use to develop a political conception. Therefore the political conception of justice is formulated in terms of two fundamental ideas implicit in the public culture of a democratic society (the ideas of society as a fair system of cooperation, and of persons conceived as free and equal). Due to this reinterpretation, the justification of justice as fairness proceeds from what is held in common and leads to an agreement based on “an overlapping consensus of reasonable comprehensive doctrines” 37 . For this reason Rawls preserves his conception of justice as fairness at the cost of setting aside our moral, philosophical, and religious convictions. In order to preserve justice and guarantee stability of his conception Rawls reduces to private sphere the debates about the conceptions of the good life. It is not surprising that this position has to be considered very controversial. Let’s mention just one reason: the demand for the privatization of the good for political purposes produces in citizens a sort of schizophrenia since they must not resolve issues, as for example the question of abor- tion, invoking their own moral principles. In this way, in private, someone can be a pro-life activist, but in public must accept Rawls’s solution of the problem which is pro-choice. Thus we have a typical instance of Orwell’s “doublethink”. Nevertheless a critical approach to Rawls’s proposition will be a subject of another paper.

34 Ibid., pp. 9-10 35 Ibid., p. XXIX. 36 Ibid., p. 15. 37 Ibid., p. 101.

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Reference

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