Justice and Authority Rawls and Kant on the Right to Rule

JUSTICE AND AUTHORITY RAWLS AND KANT ON THE RIGHT TO RULE John Rawls’ impressive and wide-ran- proceeded diferently: He attempted, ging theory of justice presupposes the in an ingenious way, to justify political political and legal institutions of a con- authority from the bottom-up. I argue stitutional democracy at its foundatio- that Kant’s approach has much to say nal level, and therefore it does nothing for it, given the irreducible moral plu- to justify the state’s right to rule. Kant ralism that Rawls himself draws atten- tion to. By Runar B. Mæland olitical authority is a moral quality singling out the ply arguments that establish the state’s right to rule. I will Pstate among other agents, giving it the right to rule argue that John Rawls fails to supply such arguments in and its subjects a duty to obey. Te right to rule entails his political theory, both as it is developed in A Teory of that the state can legitimately impose laws and enforce Justice (1971) and in his later work. In both cases, he as- them by coercive means, an entitlement which goes be- sumes rather than argues for the state’s right to rule, and yond any entitlement other agents may have to enforce thus doesn’t give us a principled reason to reject anarchy. I persons’ natural rights; the duty to obey entails that sub- then argue that Immanuel Kant does give us such a reason, jects are obligated to comply with the laws legitimately by showing that justice is impossible to realize without po- imposed on them by the state, a duty which goes beyond litical authority, and I suggest that the Rawlsian can take any duty they may have to respect others’ natural rights.1 onboard the Kantian conception of authority. Finally, I Given that all coercion and all departures from equa- argue that the Kantian conception is robust against the lity between moral agents stands in need of justifcation, challenge to authority recently posed by the prominent I will assume for the purpose of this paper that a base- market anarchist Michael Huemer. line skepticism The right to rule entails that the about authori- Rawls on the Natural Duty of Justice state can legitimately impose ty is warranted. Rawls discusses political legitimacy and obligation both in laws and enforce them by co- Political theo- the early and the later part of his career, and I will take up 2 ercive means, an entitlement ries that assign both discussions in order. In A Teory of Justice (hereafter a signifcant TJ), Rawls argues for principles of justice through the de- which goes beyond any entitle- role to the state vice of a hypothetical choice situation he calls the “original ment other agents may have to must therefore position,” in which rational contractors choose principles enforce persons’ natural rights. be able to sup- for themselves under a “veil of ignorance,” not knowing 1 Natural rights are whatever rights individuals hold independently of 2 I skip his earliest paper on legal obligation in the 1960’s, which were the state. superseded by TJ, as well as the discussion in Political Liberalism, which was superseded by “Te Idea of Public Reason Revisited”. 4 JUSTICE AND AUTHORITY Artikkel Intervju Brev Kritikk who in particular they are; they only know the “general comply with unjust laws if they are enacted in accordance facts” of society and human nature, and their only moti- with a constitution that is just (or at least sufciently just), vation is to further their own prudential interests (without and if the laws themselves are not too unjust. Tis is be- knowing which particular interests they have as individu- cause there is no feasible democratic procedure that can als belonging to a certain class, gender, religion, vocation guarantee that only just laws are enacted. Rawls does not and so on). Tese epistemic restrictions are meant to en- ofer much help in determining exactly where the limits of sure a fair, free and unbiased agreement (Rawls 1971:11- justice are, but one thing he does say is that civil disobedi- 15 [§3], 18-21 [§4], 136-142 [§24]). ence is justifed (as an exception to a general principle of Having frst determined the famous two principles obedience) when there are clear violations of equal liberty of justice for institutions (specifcally the “basic structure in a regime that is “nearly just” overall, so we may infer of society”),3 Rawls goes on to consider what principles that political obligation holds at least up until that point the contractors would choose for individuals, concerning (Rawls 1971:372 [§57]). (among other things) how they are to be bound to the For Rawls, then, the natural duty of justice grounds institutions governed by the principles identifed in the political obligation. It does not however (and is not sup- frst part of the argument. Te outcome of this choice is posed to) ground the government’s right to rule. Instead, the “natural duty of justice,” stating that “frst, we are to it presupposes that the relevant institutions have the right comply with and to do our share in just institutions when to enact and enforce the rules required by the principles of they exist and apply to us; and second, we are to assist in justice; the only question on the agenda is whether citizens the establishment of just arrangements when they do not have a general duty to obey. Te alternative to the duty exist, at least when this can be done with little cost to ours- of justice that Rawls considers is a conditional obligation elves” (Rawls 1971:334 [§51]). Te basis of this choice is to support and comply with those (just) institutions that the thought that the natural duty of justice, as a part of the the individual voluntarily takes part in or accepts the be- shared public conception of justice in society, would serve nefts of. If such an obligation were chosen in the original to secure and stabilize position instead of the just institutions: By ma- For Rawls, then, the natural duty of jus- natural duty, the state king general compli- tice grounds political obligation. It does would presumably still ance more likely, it faci- not, however (and is not supposed to) have the entitlement to litates mutual reliance. coerce those who do not While Rawls thus ground the government’s right to rule. comply. It may perhaps argues that our political be thought that the jus- obligation derives from a natural duty of justice, he does tice of an institution is sufcient for it to have authority to not say that we are only obliged to obey laws that are just. enforce compliance with its requirement, but that cannot In TJ, his position seems to be that we have a duty to be right: Te Red Cross may both be just in itself and 3Te frst principle guarantees a set of equal basic liberties for all citi- Justice and throughout Rawls’ career (Rawls 1971: 60 [§11], 302 [§46]; zens, while the second requires that social and economic inequalities Rawls 1996: 5-6). must be compatible with fair equality of opportunity and work to the beneft of the least-advantaged members of society. Some rather minor revisions aside, these principles remained constant from A Teory of RUNAR B. MÆLAND 5 contribute importantly to justice, but if it were to take suggests that the society in question has already formed a up coercive powers, it would not gain any right to coerce state before questions of justice arise. In the argument for people just like that.4 So an account of the authority even the principles of justice for the basic structure of a closed of just institutions is needed, but not given. society, the political and legal institutions of that structure Rawls might have attempted to ground political autho- are assumed to exist already; there is therefore no point for rity in the natural duty of justice.5 For such an attempt to Rawls to demonstrate that the realization of his concep- be successful, he would tion of justice required have to show that a If a conception of justice prescribes (as a these institutions. state possessing politi- Rawls does argue cal authority not only fundamental requirement) that all should that a system of penal can be just, but also is have the opportunity to hold government sanctions are needed necessary to achieve jus- ofce, it will not be a substantial result to to secure the stability tice. If we have a duty demonstrate that a government is requi- of social cooperation to realize justice, and if (even in the ideal case it can be shown that it red to realize this conception of justice; of a well-ordered soci- is impossible for us to authority must then be argued for in some ety where all have an ef- fulfl this duty without independent way, and cannot be ground- fective sense of justice) a state with special co- ed in the requirements of justice. because people may ercive entitlements, this “lack full confdence in could successfully jus- one another” and such a tify political authority. In order for this not to be a trivial system “removes the grounds for thinking that others are exercise, however, it is necessary that the conception of not complying with the rules” (Rawls 1971:240 [§38]). justice itself does not presuppose political authority; that is He does not, however show (or argue) that it is required to say, a conception of justice cannot ground an argument by justice as such; if an anarchist were to argue that there against anarchy if it begs the question against it.

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