Rawls, Religion, and Judicial Politics

In spite of the fiftieth anniversary of a Theory of Justice, David Corey offers us a more succinct and readable overview of John Rawls’s work as it evolved and developed. Had Rawls been as lucid in presenting his own thoughts, he may have loved a cultural celebrity to coincide with the respect after paid him over the academy.

As it isa half-century after the first splash of Rawls’s famous novel, Rawlsian embers are fading inside the humanities except in some hidden corners of philosophy sections. The only discernable flames come in law schools in which the focus is about Rawls’s later work, for example Political Liberalism, instead of the more orderly Theory. There are grounds for it, and Corey’s focus on Rawls’s so-called political turn moves us a good deal of their way toward a clear-headed comprehension of Rawls’s legacy.

As Corey correctly points out, scholars have disagreed about why Rawls decided to recast his concept. He came to find that Theory went too far in expecting taxpayers to embrace a neo-Kantian comprehension of the good. In what follows I’d love to make three suggestions on Rawls’s political turn for a followup to Corey’s essay. First, Rawls’s political turn proved to be a sincere if misguided effort to make his concept attractive to spiritual Americans, particularly Christians. Secondly, Rawls’s political turn required a politically active Supreme Court. Finally, and that I marginally depart from Corey, also after his political twist, Rawlsian peace supposed not only the achievement of social egalitarianism but also common acquiescence to egalitarian principles.

Rawls and Religion

As a young person planning to graduate from Princeton, Rawls wrote a senior thesis entitled”A Brief Inquiry into the Meaning of Sin and Faith,” in which he defended the notion of a just culture attracted, if imperfectly, by the teachings of Christianity. Now in his own life, Rawls was a fairly devout Episcopalian critically considering the priesthood.

Despite his agnosticism,” Rawls kept a deep devotion to social justice. Any possibility of political achievement required winning within this significant portion of the American populace.

Rawls could have been overly subtle on this cause of recasting his concept in the first book of Political Liberalism, but not in the paperback edition with its fresh, more evident Introduction. He explains that the novel’s basic question ought to be known as follows:”How can it be possible for people confirming a religious doctrine that is based on spiritual authority, for instance, the Church or the Bible, too to hold a fair political conception that supports a mere democratic regime?”

The solution to this query, Rawls states, doesn’t admit of philosophic specification. The motives for taking the principles of justice are no longer associated with any conception of the good life. If citizens want to link the fundamentals to some concept of the good, they are welcome to do this as a matter of private opinion–whether in their own or as part of a bigger subgroup of American culture –but they cannot insist upon that relationship publicly. He hopes the fundamentals will be accepted broadly as an”overlapping consensus” of many conceptions of the good, such as spiritual conceptions.

In that speech, Cuomo asserts the Catholic he thinks abortion is wrong, but since not all Americans share his religion, he would not use his political power to enforce a ban on abortion. Rawls hopes this becomes the standard attitude of Americans, spiritual or otherwise.

Cuomo’s stance on abortion clarifies the issue. To begin with, Cuomo assumes faith offers little in the way of public goods, and that churches are merely private organizations that serve the apolitical wants and needs of people, such as spiritual relaxation. In this view, a church that enjoins members to detect certain ethical teachings does this as a team rule rather than a universal precept. Secondly, and relatedly,” Cuomo provides the impression that coverage positions that correspond to religion cannot be publicly defended, implying an incompatibility between religion and reason. After Cuomo’s logic, Rawls would seriously truncate legitimate public motives for laws to terms recognized and approved by the amorphous idea of an overlapping consensus, which is supposed to exclude not just claims of religion but also some fundamentals of reason that are not widely adopted or that appear religious in character. It is not apparent why Christians would combine Rawls in applauding the Cuomo approach. Nor is it clear who will establish the overlapping consensus as well as the bounds of public reason.

Input the Supreme Court

The endeavor to attract religious Americans beneath the tent of political liberalism took Rawls to defend a wider conception of judicial scrutiny than expected by the American Founders. For Rawls, taxpayers and lawmakers can’t be trusted to choose which arguments depend as people motives and hence acceptable justifications for laws, for they will always be enticed to determine the matter in their favor. What’s needed is an institutional test that guarantees public disagreements are actually”reasonable,” which is to state consistent with the public opinion of justice. And that association is the Court.

Even though judges stay generous and allow for a wide array of people justifications, the simple fact that they would be policing what people say in protection of public coverage is itself a breach of the Founders comprehension of inherent republicanism.Rawls does talk about judicial scrutiny in Theory, but not to the extent that he does in Political Liberalism. Corey is right when he states that validity is critical to Rawls’s later thought; and that which makes a law legitimate for Rawls is not its adherence to the U.S. Constitution, but its justifiability using publicly accessible explanations. As the Founders offer the Supreme Court the function of determining what is inherent as a matter of law, so too does Rawls want the Court to play this part in his system; however, he would expand their authority to determine whether public disagreements are consistent not just with the text of this Constitution, but also with the principles of political liberalism that he hopes will devise an overlapping consensus.

One of the most revealing passages in this regard comes in Rawls’s posthumously published Lectures in the History of Political Philosophy. In the Introduction he writes:

Since liberalism endorses the idea of democratic government, it would not try and overrule the consequence of regular democratic politics. So long as democracy is present, the only way that liberal doctrine could properly do that would be for it to influence a few legitimate constitutionally established political agent, then persuade this agent to reevaluate the will of democratic majorities. One way that can occur is for its liberal authors in doctrine to affect the judges in the Supreme Court in a constitutional plan like ours.

Rawls makes apparent that typically legislative decisions should remain unless there are definite questions of constitutional validity, in which case he favors using judicial review. But whereas someone like Alexander Hamilton or John Marshall would defend judicial review for a way of sustaining popular will as expressed in the Constitution,” Rawls champions a kind of living constitutionalism that upholds the fundamentals liberal theorists, like himself, believe ought to be expressed in popular will. Neo-Kantianism sneaks in through the backdoor!

Peace, Justice, and Household

Corey creates an interesting move in using Rawls’s concept to help us think about the challenges confronting early liberalism. Though greatly influenced by Kant and Hegel, Rawls also heard from Locke, Mill, and many others eager to defend human liberty and toleration. But freedom and toleration have limitations for Rawls, and several classical liberals are satisfied with the perimeter Rawls places; nonetheless, Corey is appropriate that Rawls’s concept is an event for thinking about the health of our polity.

Usefully, Corey turns into the question of war as a means of estimating our political health. It’s certainly true that Rawls hopes to offer a framework for pluralistic cooperation, and that he seeks a language for fostering mutual awareness of taxpayers as moral agents who must make rational laws for a diverse group of people. However, Rawls’s own standard for political health has a lot more to do with equality than it does with the avoidance of war. Thus, one has to squint a little to trace Corey down this path.

However, the squint is well worth it, if just because avoiding war is a obvious goal of political life than attaining near flawless substantive equality. History affords considerable examples of regimes that have succeeded in establishing lasting peace without political or financial equality. I know of no regime, however, that has managed to reach the kind of equality Rawls demands as a condition of justice. The ones that have tried have not only failed, but in addition have ruined freedom in the method –and peace with freedom is like a kitchen without a library without books. Nobody would give up a child for the sake of obtaining a nursery.

With both eyes open back, I really don’t see enough evidence to state with Corey that Rawls offers us a meaningful theory of political cooperation that avoids war. Rather, it looks to me that Rawls is a lot more concerned with political victory in the public policy arena than he is with creating a framework for peaceful alliance. Yes, he wants peace, but just after the achievement of an egalitarian regime in which his two principles of justice inform all laws. He’ll allow religious people to take part in government as long as the government behaves without consideration of spiritual belief. And while spiritual leaders are barred from trying to influence the outcome of even ordinary law, liberal theorists are given a green light to directly affect the judges that determine the results of inherent politics.

And when those judges are in fact hoping to be authentic to Rawls’s spirit, we must anticipate the assortment of publicly acceptable arguments to be substituted, perhaps severely. Even if judges stay generous and allow for a wide array of people justifications, the simple fact that they would be policing what people say in protection of public coverage is itself a breach of the Founders comprehension of constitutional republicanism.

The ideal path toward the kind of classically-liberal polity Corey urges is a rediscovery of the institutional structures we’ve endured through the U.S. Constitution. Our frame of government envisions three co-equal branches of authorities permitted to act upon specific and limited national ends, thereby leaving much for churches, families, and localities to handle accord with their best understandings of goodness and truth.

Besides constitutional republicanism, political peace takes friendships of all kinds; and from all accounts Rawls possessed the virtues of friendship. He was a faithful husband and father, a scholar who responded generously to many critics, and a committed teacher who cared for his students. These relationships did to promote peace than anything he wrote. They are his true legacy. We have to learn from Rawls the man than Rawls the theorist.