R is for Rawls

Over the last 30 years, I have been in discussions of one kind or another exploring the ideas of leading thinkers.  For some I have chosen passages from a key text, a selection which I think, or at least hope, will capture the essence of the author’s views.  From early on, one of these readings was from John Rawls, a 20th Century philosopher who offers a compelling basis for liberalism, and provides the natural conclusion to John Stuart Mill’s classic work On Liberty.

Rawls believed the basis of justice was fairness, and developed two principles of justice which I would use as the focus for discussion.  However, in starting I would first explore Rawls’ methodology, the thought experiment he called ‘the original position’.  The original position imagined a group being brought together to agree on what kind of society, politically and economically, they would want to inhabit.  The group would participate behind a “veil of ignorance”, meaning each person would be unaware of his or her gender, race, age, intelligence, wealth, skills, education and religion, but would have two basic abilities;  first “to form, pursue, and revise a conception of the good, or life plan. Exactly what sort of conception of the good this is, however, the individual does not yet know … [and second,] each individual understands him or herself to have the capacity to develop a sense of justice and a generally effective desire to abide by it. Knowing only these two features of themselves, the group will deliberate in order to design a social structure, during which each person will seek his or her maximal advantage.”

I am sure you can see the importance of the veil of ignorance.  Proposals that would be obviously unjust would not be advanced or supported.  Why not?  Because you wouldn’t suggest limiting the franchise to men, for example, because you would not know if you were a man or a woman, and wouldn’t want to be excluded!  Rawls called this the ‘difference principle’, according to which, in a system of ignorance about one’s status, you would strive to improve the position of the worst off, since you might find yourself in just such a disadvantaged situation.

With the original position as the basis for his thought experiment, Rawls concluded two principles were central to justice:

  1. Each person has an equal claim to a fully adequate scheme of basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.
  2. Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society. [i]

It all seems so simple, yet over the years, these have turned out to be rather complicated, far from easy to understand and debate, and I’m still uncertain I have got them clear.

The original position and the veil of ignorance are ingenious.  Rawls doesn’t assume we are in agreement over the importance of justice as fairness.  Indeed, his thought experiment proceeds on the basis each participants is seeking advantage.  However, under the veil (such a lovely image in today’s world!), we might well propose a ‘fair’ world, given the possibility we might be in the worst of circumstances when the veil is removed.  As a result, he concludes ‘fairness’ is quickly translated into ‘equality’.  To be fairly treated we should all have ‘equal claim to a fully adequate scheme of basic rights and liberties’, the same scheme for everyone.  The second part of this first principle adds: ‘equal political liberties, and only those liberties, are to be guaranteed their fair value’?  What does this mean?  His ‘equal basic liberties’ turn out to be freedom of thought and liberty of conscience, political liberties and freedom of association, freedoms integral to the liberty and integrity of the person, and the rights and liberties covered by the rule of law. [ii]  If that sounds like Mill, Rawls acknowledges the importance of Mill in his thinking.

However, ‘fair value’ is the key.  Rawls sees political liberties as a ‘family’, and no one of them can be given precedence over another.  To explain this, we can use his example of the funding of political speech.  In this situation, public funding alongside other contributions with limits on amounts, and other regulations would be appropriate, but subject to three conditions.  First, there are no restrictions on content of speech (freedom of expression is one of the other freedoms in Rawls family of political liberties).  Second, arrangements must not impose undue burdens on political groups (in other words, large contributions by individuals or corporations should be prohibited, so as not to disadvantage other groups which are equally important and relevant, but without access to such funds).  Finally, regulations on free speech should ensure the fair value of the other political liberties, which in effect, means the least regulation possible.  He accepts that fair value may mean these liberties have to be limited in some ways to ensure the others in this family are not unduly restricted.  You’ll recall the Supreme Court’s decision over political funding in the Citizens United case ignored fair value, interpreting the free speech clause in the first amendment to mean the government was prohibited from restricting expenditure on political communications by corporations, unions and other associations, (with the convenient excuse organisations are ‘natural persons’ in law). [iii]  Once again, big business can do what it likes!

Abandoning the logic of Rawls’ first principle is not just an American problem.  As I was re-reading Rawls, up popped my daily update from Australia, The Briefing.  It contained a couple of disturbing stories.  The first was an article concerning the likelihood of a right-wing terrorists attack in order to ‘accelerate the race war’.  A report by ASIO noted “the far-right movement in Australia has evolved from “loose, fragmented networks” to “highly structured, security aware, and strictly vetted groups, largely consisting of white males”. In the next 12 months these groups are likely to splinter, the report noted, adding: “We are concerned that splinter groups are likely to be more extreme than their predecessors.” The document says an extreme right-wing attack is “plausible” in Australian in the next 12-18 months.” [iv]  How can situations like this arise?  Just as is the case in America, allowing unrestricted freedom of expression to the exclusion of the other liberties Rawls identified provides space for extremists to flourish and freely promulgate their racist views.  If we are to recognise the family of liberties we uphold and their fair value, such behaviour would be unacceptable in the eyes of law (let alone the broader society).

The second was an update on a continuing scandal in which the government, prior to the recent general election, had carefully doled out grants to key marginal electorates, rather than to the list of recipients that had been initially drawn up by the relevant government department.  I have to quote the comment: “We were told all the grants signed off by the then sports minister, Bridget McKenzie, were eligible – until they weren’t. The government followed the caretaker convention – until it didn’t.  The PM’s office was never directly involved in the decision-making process – until it was.  This was all shown conclusively in evidence given in Senate Estimates.  But the prime minister is utterly unconcerned: he has his story and he is sticking to it … The pork has been delivered; now for the porky pies.” [v]  There are regulations in place to support democracy, but it seems they can be ignored, bypassed or overturned.  The Australian prime minister is said to be a friend of Donald Trump.  Whether or not that is true, the pair excel in similarly thwarting democratic processes, while happily lying, obfuscating and trampling on liberties.

Rawls first principle reads like an historical artifact right now.  Rather than focussing on justice as fairness, when Australia’s prime minister needed a distraction from uncomfortable issues he copied Donald Trump’s approach, making good use of the coronavirus situation: “By Thursday of last week, Scott Morrison was a politician sorely in need of a diversion”, under pressure over the economy, the disappearing budget surplus, the slow pace of relief funding following the bushfires and “the corrupted process by which they had disbursed $100 million in sports grants.  So, come 3.45pm, after the last bruising question time of the week, Australia’s leader took himself before the assembled media in the prime minister’s courtyard and endeavoured to show that the government was on top of the biggest issue of the moment – coronavirus”.  Deflection time, and here was the perfect opportunity.  “we need to take the steps necessary to prepare for such a pandemic.” Resolute and determined, “even though Australia was ahead of the game at this point”, Morrison said, “it was now necessary to elevate our response to this next phase”, such elevation possibly involving quite draconian measures.  He was “projecting resolution and decisiveness, referring to deliberations of the national security committee of cabinet, presenting as a man in charge of events.” [vi]  Misleading and late, but to be fair, he has come good since then.

However, it was a mirror image of events in the US.  We need to take steps to prepare for such a pandemic?  Years ago, I ran programs for senior emergency staff (police, ambulance, fire, etc.), using simulations.  One was on the basis of a major international pandemic.  Then, preparedness was part of these peoples’ working lives.  With governments consumed by a desire to be re-elected at any cost and an obsession with helping big business make even bigger profits, such planning slipped into the background, funding reduced, key personnel moved on.  Ahead of the game?  On top of the issue?  Prepared?  Like Trump, SocMo was seeking to consolidate his image, claiming to quickly put in place measures that should have been there, and had been before the government started cutting back, throwing plans for the future out of the window.

It is time to return to Rawls, and his second principle.  It’s has two aspects.  First, such social and economic inequalities as exist should be attached to positions and offices open to everyone on equal grounds, i.e. equality of opportunity.  The sting is in the second part: those social and economic inequalities are to “be to the greatest benefit of the least advantaged members of society”.  Once more, the meaning needs unpacking.  Some examples are easy.  Expenditure on compulsory education should be designed to ensure provisions are weighted towards lifting the skills and understanding of disadvantaged students.  Equally, voting locations should be chosen to increase accessibility to those suffering from mobility or other handicaps.  But what about salaries?  Here Rawls seems to leave this to the workings of a free, informed market:  we know that makes sense in an ideal world, but philosophical ideals may not mirror the way things are.

Even in Rawl’s imagined first position, he acknowledged that, in the real world (what a phrase), we are not motivated by a sense of justice as fairness, but by our own self-interest.  Clearly, we see evidence of this all the time, which suggests Rawl’s in principle model might be undermined by practice, an academic exercise at best.  Even worse, the suggestion “positions and offices [be] open to all under conditions of fair equality of opportunity” offers a possibility that looks like a mirage:  the market operates in a way far from this ideal.   Manipulated markets and self-interest seem likely to undermine any egalitarian system proposed under the veil of ignorance.  Over the years I have come to accept that Rawls is an idealist, conjuring up a basis for the way the world should be that makes great sense, but one which is clearly impractical.  It hasn’t changed my fascination with his work, nor my agreement that this is the way we ought to live.

In these dark times, I have to end with humour.  Recently Trump accused Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg of anti-Trump bias, saying they should stay out of cases involving him.  His comments followed Sotomayor’s scathing dissent in the court’s decision to allow the administration to enforce its “public charge” immigration rule in Illinois, yet another example of the Trump administration’s improper practice of skipping federal appeals courts to bring cases directly in front of the justices.  Also, he was still smarting over Ginsburg calling him a “faker” in 2016, (she later apologized).  “I just don’t know how they cannot recuse themselves to anything having to do with Trump or Trump related,” the president said. [vii]

The perfect response came in the humorous but biting Borowitz Report.  “Asserting that his personal interests put him in direct conflict with the interests of the United States of America, Supreme Court Justice Ruth Bader Ginsburg has demanded that Donald Trump recuse himself from all decisions involving the future of the U.S.  Ginsburg said that Trump’s oft-stated allegiance to himself makes it impossible for him to render unbiased decisions on issues affecting people other than himself … Ginsburg enumerated a list of issues about which Trump should immediately recuse himself, including immigration, trade, taxes, the social safety net, women’s reproductive rights, health care, the economy, the military, the environment, “and any other issues related to domestic or foreign policy not listed above.” Ginsburg stressed, however, that, even after recusing himself from those matters, Trump would still be allowed to weigh in on other important decisions, like “what to eat and which channel to watch.”” [viii]  Seems fair!!

Rawls died 18 years ago.  He comes across as a somewhat private and withdrawn figure, not fond of public speaking, almost a parody of the academic Harvard philosopher.  Perhaps it is fortunate he didn’t live to see the USA ignoring every element of his views on justice and fairness, nor witness the self-interested, petulant and extreme behaviour of Trump.  Would Rawls be angry and disheartened?  Certainly.  However, I can imagine that he, like me, would have found momentary relief in reading Andy Borowitz.   As for justice, we can only hope.

[i] This is the version from his later work, as there are two changes from his original statement: The first principle reads “equal claim” instead of “equal right”, and “system of basic liberties” is replaced with “a fully adequate scheme of equal basic rights and liberties”. The two parts of the second principle are also switched.

[ii] John Rawls, Political Liberalism, Columbia University Press, 1993, page 291

[iii] Supreme Court: Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)

[iv] https://www.thesaturdaypaper.com.au/news/politics/2020/03/11/. Yes, I am putting a limit on freedom of speech

[v] Ibid.  To clarify: the Australian caretaker convention is that no major decisions are to be implemented between calling an election, and the appointment of the government after the election.  I guess redirecting money from the $100m sports grants program is major!  Porky pies Are, of course, lies.

[vi] Ibid.  Incidentally, ScoMo is the Aussie shortening of Scott Morrison.

[vii] https://www.cnbc.com/2020/02/25/trump-calls-on-supreme-courts-sotomayor-and-ginsburg-to-recuse.html

[viii] https://www.newyorker.com/humor/borowitz-report/ruth-bader-ginsburg-says-trump-should-recuse-himself-from-all-decisions-involving-the-future-of-the-country

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