A Threat to Liberty–and Justice

No American writer over the past fifty years has achieved greater damage to the analysis of political doctrine, to jurisprudence, or to the very foundations of our Constitutional regime than John Rawls. When some particulars of his theory are criticized by Professor Corey, the real problem goes much deeper, in the manner that Rawls conceives his task of”ethical theory” To put it simply, accountable for the Constitutional order that already exists in the USA, and its foundation from the thought of liberal thinkers and statesmen such as Locke, Montesquieu, and the American Founders, Rawls writes as if the very fact that people disagree about the orders of justice–a phenomenon characteristic of political life beneath any non-despotic political regime–would be still an issue to be”solved” by getting everyone to agree to a”theory” concocted by one doctrine professor or another. Once this premise is accepted, it matters less if the theory in question is really a redistributive one like Rawls’s or a libertarian one like Robert Nozick’s. The fundamental problem with Rawls’s approach, as critics such as Benjamin Barber and Seyla Benhabib have observed, is that it tries to do away with politics.
Unlike Corey, despite the bitter controversies that have roiled our politics over the past decade, many Americans have never thought that”politics is war.” While their intentions might be no less violent, consider how far movements like Antifa and the Proud Boys are out of winning the kind of popular support that¬†allowed the large-sale warfare waged over the streets of Weimar Germany–or those of Thucydides’ Corcyra.
With the exception of 1860 (and perhaps of partisan extremists following the elections of 2016 and 2020), that the huge majority have admitted this, even when their favorite party loses an election–meaning the coverages government pursues on everything from taxes to defense to law to offense to judicial appointments aren’t the ones they favored–they will continue to enjoy a sensible security of life, liberty, and property, thanks to our Constitutional order.
This consensus was recorded by authors ranging from Tocqueville–visit that his own discussion of”small” vs.”good” parties–to historians such as Louis Hartz and Daniel Boorstin. If anything were to make our politics a lot stranger, it could be a text such as A Theory of Justice which tells people that when their vision of the great life differs from the writer, their ambitions have”no value.” (Rawls uses that term into connote”conceptions of the good” that violate what he asserts are the very”broad limits” his principles impose on”the kind of men that men would like to be.” For example, those whose views of the great society involve placing legal limits to”religious and sexual practices” that seem”black or degrading” would automatically have their views ruled out of the political arena. Certainly, judicial rulings that read policies such as gay marriage and transgender faith into our Constitution and laws, following Rawls’s plan of dismissing that the electoral will, have tended to spark popular passions into an unhealthy level, generating what is widely called a”culture war.”)
Freedom and Community
I think there’s much less to Rawls’s theory, in its original or revised variations, compared to Corey asserts. Unlike Corey, we needed Rawls to inform us this a liberal regime must ensure individual freedom, equality before the law,” also”reasonable pluralism.” (View, on the last, Federalist 10.) Nor would we now have”much to learn from Rawls” into the result that a diverse, liberal nation like ours can’t at the same time be a”community” according to some shared”moral purposes.” Our need for a widely shared, albeit restricted, morality, was addressed at length by such liberal scholars as William Galston and also Peter Berkowitz. As Madison observed in Federalist 55, a republican government such as ours presupposes, over any other sort, a high amount of moral merit. But we barely desired Rawls to explain our nation will never be”that a polity such as Calvin’s Geneva”!
From Rawls’s time, of course, Americans’ general standards of moral behavior had become considerably less restrictive than previously –due to innovations like same-sex marriage, the legalization of abortion and pornography, and also a judicial mandate of rigorous political neutrality between religion and atheism. These developments surely grapple with Rawls’s morally libertarian goal. (At the time of this writing, the Biden government had just removed the ban on announcing transgendered individuals to the army, without the thought having been given to the impact on unit cohesion, whereas the New York State legislature is considering a proposal to legalize streetwalking.)
But how would the massive majority of Americans were forced to endure such sacrifices because they did to their nation in conflicts such as World War II without the kind of human feeling which Aristotle (Politics III.9) exceptionally necessary for a political community? Think about the peroration of Lincoln’s First Inaugural Address, attractive to such notions of brotherhood in a bid to prevent the Union from falling apart. And concerning the consequences on our domestic well-being of the kind of libertarian sexual harassment that Rawls and his frenemy Nozick ordained as a source of justice, consult the writings of educated observers such as Myron Magnet and Mary Eberstadt–or else, as Christopher Wren’s epitaph ordains, just look about you.
What Corey means by stating that politics ought to be”non-purposive into the greatest extent possible” is beyond me, because it could have been around the writers of the Declaration of Independence. ¬† Just because it is natural to all human beings to pursue particular functions in their lives, it is inevitable in forming and seeking to preserve political communities, they will expect the government to enact policies which they think (accurately or not) will profit them, and will want to convince their citizens to prefer those policies too. As Aristotle puts it in his Politics, while human beings initially sort cities for the sake of life, these cities remain in life as a way to living well.
Rawls’s Hostility to Economic Freedom
Turning to the specifics of Rawls’s”two principles of justice,” Corey rightly criticizes the very first principle, ordaining that the”highest equal liberty” for everybody, and assigning it”priority” over the second principle (which legitimizes inequalities in economic and social goods provided they maximize the well-being of the”least advantaged”) because of its abstractness. In fact, Rawls’s mandate that”freedom can be restricted only for the interest of freedom” is without significant significance at allevery law limits people’s freedom to do something or other! Rawls’s consignment of financial liberties into his second principle–as if the best to make a living in a trade of one’s choosing, or to have one’s house secured against theft or lawless governmental confiscation, were no less critical than freedom of speech, the press, or faith –has been absolutely random, a manifestation of the Progressive liberalism of his time and milieu, was given judicial imprimatur by the Supreme Court’s”favorite place” doctrine in the 1930’s.
Those who want truly to encourage liberty and justice ought to abandon”moral theory” and then come back to the analysis of classic texts of political philosophy in addition to the writings of the best American statesmen, all whose reflections involved the serious, open-minded thought of alternative political claims, and grounded their reports of justice within an understanding of human nature.Contrary into Corey, Rawls does not literally mandate political redistribution of property, in the feeling of its direct seizure. Instead, he urged these conventional liberal policies since steeply progressive income and estate taxes. Yet, as classical liberal and libertarian authors such as John Tomasi have pointed out (as Corey correctly notes), there’s absolutely no reason to suppose the financial well-being of the”least advantaged” would not be more likely to be improved by means of a system which permits and promotes the most gifted and loved ones of society to make high rewards, as opposed to via redistributive taxation, because in so doing they are elevating the lot of their poorest fellow citizens too. This, naturally, was John Locke’s stage in Chapter 5 of his Second Treatise,”Of Property”: under a regime of financial freedom with protected property rights, also a day-laborer in England is better fed, clothed, and housed than the wealthiest of Indian chiefs.
But there’s a deeper rationale inherent Rawls’s difference principle compared to solicitude for your welfare of the bad. In Part Three of Theory, he enunciates a remarkable doctrine of”excusable envy”–in breach of every one of those terrific religious and philosophical traditions–based on which it is”logical” for all those lower down the economic scale to feel jealous of these wealthier than they are, in the event the inequalities between them transcend certain (unspecified) limits. It’s now that we discover the inherent if unacknowledged link between Rawls’s doctrine and of Karl Marx, perhaps inspiring the name of a recent analysis by William Edmundson, John Rawls: Reticent Socialist. So far as I know, the only precedent for Rawls’s difference principle is Marx’s and Engels’s mockery of their so-called”utopian” socialist rivals, in Part III of the Communist Manifesto, on the earth that they hunted”to improve the state of every member of society,” instead of benefit only the oppressed proletarians.
As there was no area from the Marxian plot for those who found the guaranteed proletarian dictatorship (to be administered by”Communists” such as Marx and Engels themselves) damaging for their well-being, Rawls informs readers that find his scheme antithetical for their good that”their nature is their misfortune.” While Rawls was not any violent revolutionary, he, like Marx and Engels, aimed to encourage resentment among different classes, as opposed to serve the common good. (He provided only the lame explanation that given the need to operationalize the term”common good,” it would be easiest, provided the”ethos” of a contemporary democratic society, to recognize that the most common good with that of the least advantaged.
In this light, it is crucial to remember the Rawls did not in the end prioritize political liberty at all, contrary to his own claims. He voiced a studied agnosticism regarding if his principles tended to prefer a free-market economy over a socialist person, oblivious to the causal association between the latter and the refusal of political freedom. He evinced no sense that a political regime which makes everyone a worker of the state deprives them of their independence that would enable them to criticize the authorities –or perhaps openly detract from now reigning political fashions. (Consider today’s”cancel civilization.”) In his earlier writings, Rawls allowed the priority of freedom can justifiably be suspended if this suspension was crucial to progress the”social and economic” condition of the poor–thereby sanctioning the alibi provided by every Marxist despotism for its denial of freedom and the rule of law, despite the fact that the denial functioned only to improve the despots’ riches and power.
Rather than allow the amount of financial regulation or level of taxation within a free society to be negotiated via the political process, due to varying circumstances and competing partisan requirements, Rawls insisted his own notion be substituted to the great older one embodied in the documents that Americans inherited against the patriots of 1776, 1787, and 1865, ideally placing political dispute to an end.

Ever since Theory was initially released, it has functioned as a prototype for professors of political or moral”theory” or jurisprudence to generate their own subjective, utopian variations of a just culture, impervious to political and financial realities. Rawls’s teaching has functioned only to erode the true foundations of political freedom and of conventional,”bourgeois” morality.
Those who want truly to encourage liberty and justice ought to abandon”moral theory” and then come back to the analysis of classic texts of political philosophy in addition to the writings of the best American statesmen, all whose reflections involved the serious, open-minded thought of alternative political claims, and grounded their reports of justice within an understanding of human nature.