As its title suggests, this chapter is a critical discussion of Rawls’s political philosophy. However, the chapter is not Sen’s only critical treatment of Rawls’s ideas in the book: some criticisms noted in the ‘Introduction’ are not developed here but elsewhere, and some criticisms mentioned here are developed further later in the book. Moreover, the chapter is not entirely critical: Sen begins by recounting his long friendship with Rawls, and about halfway through the chapter Sen identifies seven ‘positive lessons’ from Rawls’s political philosophy. Nonetheless, the bulk of the chapter is critical of Rawls’s views.
The following three criticisms especially struck me as I was reading the chapter:
- Sen’s claim that if Rawls acknowledges that unanimity on a conception of justice cannot be achieved, then it follows that Rawls’s entire theory of justice is ‘devastated.’
- Sen’s claim that Rawls simply assumes that citizens will “spontaneously do what they agreed to do in the original position” (61).
- Sen’s worry that ‘parochial beliefs’ might adversely affect the selection of principles of justice by the parties within the original position.
I found all three criticisms unconvincing.
Sen restates his pluralism with respect to conceptions of justice: “There are genuinely plural, and sometimes conflicting, general concerns that bear on our understanding of justice” (56-7). Consequently, he does not think that rational agents invariably will converge on a unique set of principles of justice within the original position. Sen goes on to note that Rawls, in his later writings, acknowledges that alternative conceptions of justice might be selected by the parties in the original position.
(The picture is actually more complicated than Sen presents. Not only does Rawls acknowledge that the original position device does not necessitate the selection of the two principles of justice as fairness, given the many different considerations to which the parties might appeal in their deliberations [JF, 133-4], he also claims that the original position device itself is only one way to satisfy the ‘criterion of reciprocity,’ and that other liberal theories might employ different justificatory strategies for arriving at principles of justice that satisfy the criterion of reciprocity [PL, xlviii-xlix].)
According to Sen, while Rawls accepts “that there are incurable problems in getting a unanimous agreement on one set of principles of justice in the original position,” Rawls fails to recognize that this “cannot but have devastating implications for his theory of ‘justice as fairness’”(58). However, Sen does not seem to provide any argument (as far as I could discern) for this claim. That is, I could not see why Sen thinks that Rawls’s acknowledgement that there might be a plurality of reasonable liberal conceptions of justice renders Rawls’s overall theory no longer viable.
I think that the most plausible way to understand Rawls’s project (in his writings on political liberalism, at least) is that he is trying to identify and defend what he takes to be the best justified conception of justice available, ‘justice as fairness,’ and to explain to us why he thinks that that conception of justice is the best one (namely, by means of the original position device, etc.). Rawls hopes that we will agree with him, and that we will, in light of his arguments, achieve a reflective equilibrium in support of the principles of justice as fairness (and subsequently employ those principles when thinking about fundamental political matters).
Rawls acknowledges that this is an ongoing, open-ended democratic process. As he writes: “…we are in civil society and…the political conception of justice, like any other conception, is always subject to being checked by our reflective considered judgements” [‘Reply to Habermas,’ 153]. Commitment to the principles of justice as fairness does not require or depend upon the achievement of unanimous support for those principles (as far as I can tell). It is not clear why we should abandon our commitment to justice as fairness (assuming that we have been convinced by Rawls’s arguments) once we acknowledge that other reasonable and rational persons might endorse other liberal conceptions of justice.
Moreover, it is important not to overstate the scope for reasonable disagreement with respect to justice in Rawlsian political liberalism: “The limiting feature of these forms [of reasonable liberalism] is the criterion of reciprocity” [PL, 450]. Thus all reasonable political conceptions of justice (roughly, all conceptions that could be supported by reasonable persons, i.e., persons who acknowledge the fact of reasonable pluralism and are committed to satisfying the criterion of reciprocity) will include three features, according to Rawls. These features are: (a) a set of basic (liberal democratic) rights and liberties, (b) a ‘special priority’ for these rights and liberties over other considerations of justice, and (c) measures ensuring that all citizens have adequate resources to make effective use of their basic rights and liberties. Consequently, conceptions of justice like libertarianism and classical utilitarianism remain ‘unreasonable’ and thus ‘off the table’ in Rawlsian political liberalism (libertarianism fails with respect to (c), whereas classical utilitarianism fails with respect to (b)). Even late Rawls, then, would reject Sen’s ‘flute example’ from the Introduction. Therefore, the concession that Rawls makes does not look especially harmful to his overall project. All reasonable liberal conceptions of justice are going to overlap on certain core features. Their differences simply are not fundamental in nature. (They concern disagreements over questions like: should the basic liberties have ‘lexical priority,’ or a ‘special weight,’ relative to other considerations of justice’? In ensuring that all citizens have adequate means to make effective use of their liberties, is the ‘difference principle’ to be preferred, or a weaker ‘sufficientarian’ principle? Etc.)
Perhaps Sen thinks that unanimity is required for the implementation of the principles of justice, given Rawls’s account of a ‘well-ordered society’? This is not mentioned at all in the chapter, but I suppose that an argument to this effect might proceed along the following lines. A fully just society, according to Rawls, is a ‘well-ordered society,’ and in a well-ordered society all reasonable persons endorse the same political conception of justice. If unanimity on a conception of justice is recognized as unachievable, then a well-ordered society cannot be regarded as a realistic utopia, and so the Rawlsian project crumbles. (Or so such an argument might go. Again, Sen does not explicitly make this argument.)
However, I think that the idea of a well-ordered can easily be tweaked from one in which there exists unanimous support for the relevant conception of justice to one in which the basic structure is organized in accordance with a legitimate political conception of justice (one that satisfies the criterion of reciprocity, and thus includes the three features outlined above). If all reasonable persons in a society acknowledge the legitimacy of the conception of justice that governs their basic structure, that society is ‘well ordered’ in nature, i.e., ‘stable for the right reasons,’ as citizens’ sense of justice is sufficient for them to freely support the conception of justice (even if the conception is not their most preferred one, and they consequently exercise their democratic rights to recommend the adoption of a different conception). If this modest amendment to the idea of a well-ordered society is plausible, then arguments in favour of a conception of justice that claim that a society organized in accordance with it would be ‘well ordered’ in nature can still be made, that is, the idea of a well-ordered society can continue to play its role in demonstrating the feasibility and legitimacy of a conception of justice (within the second stage of the original position argument).
My apologies for this somewhat lengthy discussion! The main point that I want to make simply is that Sen provides us with no argument, as far as I can tell, for his claim that Rawls’s acknowledgement that the original position device need not yield a unique set of principles of justice entails the demise of his overall theory. Moreover, I’m sceptical that such an argument is available.
Sen claims that Rawls’s focus on determining principles of justice for institutions leads him to neglect the ‘actual behaviour’ of people; instead, Rawls simply assumes compliance with the requirements of justice. Within Rawls’s system, according to Sen, the selection of the principles of justice ensures not only the right choice of institutions, but also the necessary behaviour by citizens (see 69).
This strikes me as clearly incorrect. On Rawls’s account, political power in an adequately just society is ultimately the “power of free and equal citizens as a collective body.” Consequently, the question of whether citizens actually can do what is necessary in order to maintain just institutions over time is of central importance to Rawls’s project. There are no ‘political institutions’ that are independent of citizens’ behaviour: “political power is citizens’ power, which they impose on themselves and one another as free and equal” [JF, 40]. Consequently, there is a vital second stage to the original position, in which the parties determine whether the principles that are selected in the first stage can be stable over time ‘for the right reasons,’ i.e., through the free support of reasonable citizens, given the parties’ knowledge of human psychology, the circumstances of justice, and so forth.
All of Part V of Justice as Fairness is devoted to this question (just as is a substantial part of A Theory of Justice, with its discussion of the ‘strains of commitment,’ the ‘argument for congruence,’ etc.). While Rawls’s discussion of this stage of the original position is conducted at a high level of generality, the parties in the original position, when determining the stability of justice as fairness, do appeal to general psychological and social facts (as well as the general circumstances of justice, including the fact of reasonable pluralism, etc.). Consequently, Rawls is not simply assuming that citizens in a just society will ‘spontaneously’ act in accordance with the requirements of justice. Indeed, failure to demonstrate the stability of a society governed by principles of justice in the second stage of the original position is sufficient to show that those principles must be rejected. While one might fault the details of Rawls’s discussion of stability, Sen is clearly incorrect in claiming that Rawls simply assumes compliance with the requirements of justice.
Perhaps Sen’s criticism should be construed as levelled against Rawls’s assumption of ‘full compliance’ within a just society? (The argument in the second stage of the original position is meant to show that ‘full compliance’ by reasonable persons is possible, despite the fact of reasonable pluralism, and in light of, inter alia, general features of human psychology). If so, this is not stated explicitly by Sen in this chapter. (Although this reading might be suggested by Sen’s presentation of the “6th exclusion” of Rawls’s theory in chapter four (90).)
Certainly, when trying to realize the principles of justice in non-ideal theory, more specific information concerning ‘actual behaviour’ (including expectations regarding probable levels of non-compliance, the actions of ‘unreasonable’ persons, etc.) needs to be taken into account. However, I do not see why such considerations would undermine the original position device and the justifiability of the principles of justice derived via that device. This seems especially to be the case once we keep in mind the different roles of the ‘general conception of justice’ and the ‘special conception of justice’ in Rawls’s theory. The former provides a threshold account of the requirements of justice by means of which we can judge the justice/injustice of existing, ‘non-ideal’ societies. The latter conception of justice, in contrast, constitutes a ‘regulative ideal’ for thinking about how to reform existing societies. Once we keep in mind the different content and roles of these two conceptions of justice in Rawls’s theory, the complaint that Rawls fails to consider adequately the ‘actual behaviour’ of persons does not seem to have much force, in my judgement.
Finally, Sen criticizes Rawls’s social contract approach to thinking about justice for being vulnerable to the problem of ‘parochialism.’ Sen writes: “each country, or each society, may have parochial beliefs that call for more global examination and scrutiny” (71). Sen pursues this criticism at greater length in chapter six, so perhaps we should postpone discussion of it for later. Nonetheless, I wanted to note that I find this criticism deeply misguided. The parties in the original position only know certain very general facts about their society, namely, “that it exists under the circumstances of justice, both objective and subjective, and that reasonably favourable conditions making a constitutional democracy possible obtain” [JF, 87]. Beyond that, when identifying principles of justice (as opposed to just institutions), the parties in the original position do not know more particular information about their society – and, in particular, they do not employ the kinds of country or society-specific beliefs that would give rise to concerns about ‘parochialism.’ It seems that Sen is conflating the original position, in which principles of justice are selected, with the ‘constitutional stage,’ at which point the parties apply the principles of justice to the constitutional structure of a particular society, while remaining ignorant of the particular place of the people whom they represent within that society. (Even with respect to the ‘constitutional stage,’ though, I find Sen’s concern with ‘parochialism’ misguided.)
In conclusion, I would like to note that while I have not (so far) been very impressed by Sen’s criticisms of alternative accounts of justice, and especially Rawls’s account, I remain hopeful that his ‘positive’ project, his ‘comparativist’ approach to justice, will prove to be more compelling.
(Finally, my apologies for so grotesquely exceeding the recommended word limit!)