陸尊恩 Tsun-En Lu

A Kuyperian Commentary on Biblical Hermeneutics, Chinese Worlds, and Everything Else in a Biblical Perspective

John Rawls’s ‘Justice as Fairness’ and the Pluralistic Society: A Christian Critique

Rawls’s notion of constitutionalism is not without a value from the Christian perspective. At least it affirms the need of the basic norms for the society. And the sense of fairness is conformed to the biblical notion of impartiality.

Introduction

John Rawls’s A Theory of Justice was the first assigned reading when I studied the constitutional law in college in Taiwan. This book was regarded far more highly in my constitution class than any other textbooks in all my other classes. My professor seemed to be very excited about the potential of the theory presented in this book for redefining civil rights. To an extent, he argued from this theory that prostitution should be seen as a work right and be protected by the constitution. Later I realize that my professor perhaps had overstretched the application of the theory beyond Rawls’s own theoretical intention. But it is still intriguing to question how this theory should be applied, what implications it may have produced, and whether the theory itself is legitimate.

Rawls’s work is relevant to ethics because the topic of justice is always involved with a variety of moral considerations, as well as many religious or philosophical presuppositions that claim to be the source and motivation of justice. Justice is concerned about the due relationship among the members of the society, the individuals’ responsibilities, and the expectations of governmental interventions. Justice always carries the character of morality and speaks of itself as a moral demand. A theory of justice must also be a theory of moral philosophy.

Rawls’s theory is particularly relevant to Christian ethics because it has attempted to define for Christianity and many other religions their public boundaries of political involvements. It serves to both protect and constrict the freedom of Christianity in a democratic society to exert its political influence. It draws a new line between the authority of the state and the church. And most profoundly, it excludes Christianity from contributing in the understanding of justice at the level of public discourse. At last, it has apologetic implication because it relativizes the metaphysical claims of Christianity.

By the end of twentieth century, Rawls’s conception of justice had almost been held as political common sense for American society. In the twenty-first century, it continues to be one of the most influential theories that shape the political agenda of the increasingly pluralistic American society. The primary interest of this paper is to evaluate Rawls’s notion of ‘justice as fairness’ from a Christian perspective and to argue that Christianity should not surrender its understanding of justice to the Rawlsian interpretation, even in a pluralistic society.

Defects of Utilitarianism

To do justice to Rawls’s A Theory of Justice, we should firstly read him against his historical background. His work was nurtured in the 60s when the American society suffered from severe societal conflicts, economic inequalities, political instability, and the bitterness of the Vietnam War. The American society was then in dire need of a practical guide to the restoration of social order and the resolution of civilian conflicts. The predominant moral philosophy of that time, utilitarianism, was obviously unable to meet this demand. Mill’s ‘greatest happiness principle’ and other teleological principles, for Rawls, were too obscure to ground civil rights and equal liberties. Although Mill was interested in protecting the equality, his approach to justice relied upon the moral sensitivities of his day,[1] and it could not prevent the rights of the few to be violated by the expediency of the majority. For Rawls, utilitarianism is against our moral intuition to allow that ‘some should have less in order that others may prosper.[2] Like Kant, Rawls cannot accept utilitarianism which sometimes sees human being as the means of the greatest good, not the end of the good itself. In a word, the classical utilitarianism failed to provide a satisfactory defense to the basic democratic values such as liberty, equity, and human rights.

On the other hand, Rawls recognized the importance of social utility in constructing a stable and efficient system of justice. The system must be flexible enough to allow the maximization of the general good or happiness in order to satisfy the individuals’ expectations toward the society. The system must be also concrete enough to help the society make difficult moral decisions.[3] Teleological and deontological elements are both needed to achieve this goal. So Rawls tried to seek a new alternative which combined the social contract theories of Locke and Rousseau, and the deontology of Kant. His ambition was to elaborate a workable and systematic conception of justice which would constitute the most appropriate moral basis for a democratic society.[4]

Well-ordered Society

Rawls’s theoretical construction begins with the goal of delineating a conception of justice that is sufficient to establish a ‘well-ordered society’. By this term he means a ‘more or less self-sufficient association of persons who in their relations to one another recognize certain rules of conduct as binding and who for the most part act in accordance with them.’[5] Rawls presupposes an exclusively reciprocal definition of the society, which exists only for the purpose of advancing of the good defined by each member. The purpose of social justice is, therefore, to elicit continual commitments among its members and to sustain a stable social structure.

In a well-ordered society, according to Rawls, different motives in the society should be reasonably balanced and satisfied. The public conception of justice must accord with the psychological expectations of its members so that it will naturally engender among them a normally effective desire to act as the principles of justice requires. The conception of justice is presumably stable over time. When the principles of justice are occasionally violated, the stabilizing forces will be sufficient to restore the society back to its normal equilibrium.[6] Because this social association is self-sufficient, it does not depend upon external standard to determine for it what is just or what is the required for morality. So ‘there is no necessity,’ Rawls says, ‘to invoke theological or metaphysical doctrines to support its principles, not to imagine another world that compensates for and corrects the inequalities.’[7]

Rawls is not so much concerned about the substantive justice which prescribes every moral act in the social life. His concern of justice is primarily procedural. He does not seek to evaluate the validity of each different lifestyles, values, or worldviews, except for the sake of fairness of the basic rules by which these different positions interact. His focus is on the basic structures of the society, such as the constitution, the civil rights and equal liberties. These basic structures are important because they are pivotal to sustain the reciprocal association and long-term cooperation of the society.

Indeed, the goal of a well-ordered society is very noble and desirable, especially for a democratic society deeply disturbed by untamed conflicts. It is not hard to understand why Rawls must put the stability, or more accurately to say, the sustainability of the social structure, on top of many political priorities. But challenges to Rawls must arise to question why the sustainability of the society, not a higher end beyond the society, must be the end of the society. At least Marxists, who take distributive justice prior to the procedural justice, will not buy Rawls’s theoretical agenda. They will certainly not cherish stability as the highest concern in lieu of many other competing values. The nationalist’s state, likewise, will not accept the principle of consensus to be the primary means of maintaining the social congruence.

For Christians, Rawls’s understanding of the society is profoundly at odds with the biblical revelation: the human society was created for God’s glory; it exists to serve the will of God. The vision of well-ordered society, just like all other secular philosophy, excludes God a priori from the beginning of its theoretical construction. The human-centered society being envisioned, from the Christian perspective, is spiritually adulterous. Of course, a well-ordered society is as same desirable for Christians as for Rawls. But for Christians, this well-ordered society is possible only when God is the ruler of the society and when all the society is surrendering to Him. So we are daring enough to ask Rawls: why must God be excluded from his category of society at the first place? Why cannot God be considered as one crucial member who plays a role in the establishment of a self-sufficient system of justice?

Rawls, however, was fully aware of such kind of charge. He admitted that his conception of justice is incompatible with what he called perfectionism,[8] which aims at certain good of excellence as the highest goal of the society. The problem of perfectionism and why it cannot be adopted as the foundation of social justice is that, Rawls argued, the members of the society ‘do not have an agreed criterion of perfection that can be used as a principle for choosing between intuitions.’[9] In a society that contains competing religions and values, there is no one party that can claim to be the highest authority. If a society remains pluralistic and wishes to commit to democracy, the Rawlsian conception of justice seems to be the only viable option.

Justice as Fairness

So what is Rawls’s conception of justice? The answer is: justice is fairness. The slogan ‘justice as fairness’ is intentionally political and pragmatic. His theory is guided by his perception of the political reality: if social associations want to remain knitted together, ‘questions of justice and fairness arise when free persons, who have no authority over one another, are participating in their common institutions and settling or acknowledging among themselves the rules which define it and which determine or limit the resulting shares in its benefits and burdens.’[10] The basic structures of the society, therefore, must be completely secular because the authorities of religious faith are obviously not equally accepted by every individual of the society. This is not to say, however, Rawls himself stands at a value-free position neutral to all the beliefs; he does, nevertheless, insist that the basic structures must have no favoritism toward any metaphysical propositions and the state must be politically neutral.

Rawls’s theory is sometimes misinterpreted as purely empirical science of politics.[11] But in fact, Rawls never pretended to be an empirical theorist. He openly confessed many times that his approach was highly Kantian.[12] When he began with asking how equal individuals could be organized into social associations, he felt necessary to accept Kant’s assumption that all moral persons are rational and equal beings.[13] Then his logic follows that every moral person voluntarily participates in social associations as the means for themselves to maximize their own good, through the way of equal cooperation. Thus in Rawls’s argumentation, his protasis is his apodosis: because every individual is equal, every individual is equal in their voluntarily joined society. Therefore I cannot agree with the comment that Rawls’s approach is empirical. To say no one naturally accepts another one’s authority is one thing, to say everyone is equal is another. To justify the notion of equality must rely upon something beyond the perceived reality. In fact Rawls’s answer to the subject does not rely upon the perceived reality, but upon Kant’s metaphysical understanding of human being in virtue of one’s rational existence.

On the other hand, Rawls said that his understanding of equality was also inspired by the social contract tradition of Locke and Rousseau. However he believed that he carried their theories into a higher order of abstraction.[14] Obviously he accepted Locke’s proposition about the equal dignity of human being—a notion that is foundational to all social contract theories. Like Locke, Rawls concluded that equal liberty should take priority over social utility. But in the process of ‘abstraction’ he totally discarded Locke’s presupposition. For Locke, the justification of equality consists in the human ability of understanding God and the will of God, so the religious foundation is indispensable to the subject.[15] But for Rawls, because the authority of religion is controversial, such kind of religious presupposition must fail to proceed in the public arena.

But is Rawls correct at this point? Can Rawls be overly pragmatic at the expense of justice? It may be true that a political agenda based on religious faith is not as welcome by the majority as another based on the secular interests. But the notion of justice should never yield to the rule of majority. Waldron’s criticism of Rawls’s ‘pragmatic’ argument is excellent: ‘For Locke the religious foundation is indispensable….for Rawls the moral personality stuff is…similarly indispensable;….his political liberalism does have indispensable content, and some of that content is controversial.’[16] So it is not very different for Locke and Rawls when they both proceed in the public discourse with their own indispensable presuppositions.

Veil of Ignorance

Rawls’s strategy to deduce the principles of justice is through his famous ‘veil of ignorance’. The ‘veil of ignorance’ is a hypothetical condition in which all the parties choosing their principles do not know their true identities in the society and do not have personal knowledge that might make the negotiation process unfair. For example, ‘they do not know what position they hold in society, nor what their own particular goals or life-plans might be.’[17] At the same time, ‘they must know enough about human society to be able to make some predictions about the likelihood that principles chosen can be strictly adhered to without undue stress or strains of commitment.’[18] Such design is required by Rawls in order to achieve the conditions of fairness and rationality.

It is not hard to see that Rawls developed his ‘original position’ from Rousseau’s tradition. Rousseau’s method was to reconstruct the ideal state of justice by removing the factors of perceived injustice along with a speculative timeline, tracing back to the original state of humanity when no injustice was ever generated. Unlike Rousseau, Rawls was not so much concerned about the historical development of injustice. Instead, he was more interested in how to remove the factors of injustice at the purely conceptual level. Historical circumstances seem related to the unfair factors and therefore need to be removed behind the veil. However, the veil does not remove all the knowledge that occurs in the history since rational persons still need some kind of knowledge about history in order to evaluate their options.

For certain, the ‘original position’ in Rawls’s design is not something historical, but transcendental. Although the ‘original position’ involves a certain decree of reflection on the history, it is not conditioned by the history. So the ‘original position’ is not to be restored, but to be invented. But if the agreement behind the veil never actually happened, why should people in the real life take any interest in these principles? The answer is: ‘the conditions embodied in the description of the original position are ones that we do in fact accept. Or if we do not, then perhaps we can be persuaded to do so by philosophical reflection.’[19]

Christians, however, should not follow Rawls’s hypothetical scheme at the first place. The idea of justice, along with all the other moral principles, should never be interpreted a-historically. The reason is because the principles that guide the human society to go through the history must be relevant to the source and destiny of the society. Above all, Christians believe that the human society is the product of the creation, corrupted by the Fall, and redeemed by the work of Christ, and still awaiting the final consummation. So the notion of justice is always concerned with protology and eschatology, controlled by the biblical revelation. Such interpretation is not hypothetical, but redemptive-historical.

Reflective Equilibrium

Another critical issue that concerns the veil of ignorance is: by what criteria the circumstances of the original position should be designed? To answer this question, Rawls borrows the idea of ‘equilibrium’ from Adam Smith. His idea is like this: all the parties in the original position will begin with a cluster of ‘considered judgments’ (i.e. mature convictions about justice), and by reasoning back and forth, they will either modify the original position, or revise their ‘considered judgments’, until a final equilibrium is reached by consensus. Rawls called this process ‘reflective equilibrium’.[20]

But this design entails a dilemma: on the one hand Rawls wants to avoid the Cartesian foundational argumentation, which begins with the first self-evident principle, and then transfers this conviction from premises to many conclusions.[21] This will be inconsistent with his intention of allowing many different values to co-exist in the system. On the other hand he wants to ensure the stability of the system, which requires one commonly accepted conception of justice, so as to provide a lasting balance of desires.[22] In a word, the system must ensure both freedom and agreement.

Rawls’s solution, not surprisingly, is to work through the circumstances of the original position in order to make sure that the equilibrium would take place. On behalf of all the rational parties, Rawls himself steps behind the veil and works out a prototype of the original position, in the hope that all the parties would discover the same idea on the basis of their free rational choices. According to Rawls’s prototype, the veil must be able to remove the factors of injustice and at the same time keep the maximum knowledge that may be helpful to find out the rational principles. The basic conditions for the participants include: 1) they must be rational; 2) they must be mutually disinterested; 3) they must be not ‘envious’, interested in only absolute gains, not comparative advantages; 4) they must possess sufficient knowledge about the mechanics of the human society, such as economics, psychology, etc.; and 5) the system must be closed.

This proto-system, Rawls believes, will reach in the equilibrium when the veil falls and removes all the factors that hinder its happening. The rational persons behind the veil in their reflective reasoning will necessarily choose the same principles by their common reason. The stableness of the system, therefore, does not consist in the fact of common consent, but in its inherited reasonableness that rational persons will voluntarily make the same choices when they consider back and forth.[23]

But there is a serious flaw in this process, I think, because this reflective equilibrium approach gives a false impression that the conditions of the original position are generated in the process of the reflective equilibrium. But in fact Rawls cannot avoid assuming some basic rules to make this process work. For how could the veil per se know what factors to remove in virtue of their unfairness and what factors to keep in virtue of their helpfulness, if without the aid of Rawls? If Rawls tries to promote a fair system which claims to be free from any personal involvements before the system functions, he himself must not involve in the decisions about how the system is to be designed. Otherwise, the system is not as ‘fair’ as Rawls has claimed, but it is ‘fair’ only if we firstly accept Rawls’s judgments about fairness.

For example, in Rawls’s design, the veil does not cover all the parties’ knowledge of human society so that they may have enough intellectual resources to discover the principles of justice. However, such kind of knowledge of human society is not like Mathematics, it cannot be totally detached from the memories of human history. The knowledge of human society is fundamentally ideological. Rawls cannot persuade everyone to take off their identities in order to put on another ideological knowledge, unless he deliberately manipulates their knowledge behind the veil.

In a word, Rawls’s personal understanding of fairness must presuppositionally determine his design of the original position. He assumes that the human reason in its purest form produces consistent results, and since his understanding of fairness is reasonable, it must be accepted by every reasonable being. So Rawls’s argument is circular. The real function of the veil is to affirm the idea of justice that has been previously assumed and to transform the vague notion of justice into operating principles. If the veil fails to achieve this goal, Rawls finds freedom to modify the original position until the goal is fulfilled. If we scrupulously review this process, we will find it purely manipulative. For instance, the Rawlsian notion of equality is firstly assumed in the design of the original position, and then the veil of ignorance comes down to remove all the factors contradictory to this particular notion, and then all the rational persons behind the veil automatically choose this notion of equality and refine it into the forms of equal liberties.

A Christian critique to Rawls, however, does not focus on his presuppositional circularity. Christians have no problem to presuppose God as Rawls presupposes autonomous reason. The real Christian critique is about Rawls’s audacious claim that his ‘justice as fairness’ is fair when he presuppositionally sets his liberalism agenda above all the others.

To push it even further, I want to ask, is it just to locate morality at autonomous reason? Rawls cannot beg the question of what is right and wrong by merely appealing to social contract or human reason because even social contract and human reason per se need to be evaluated by the standard of justice. When the veil of ignorance falls and nothing is left but pure reason, how do we know that pure reason being left is good, not evil? Why do we have to accept that the Rawlsian rational persons who are ‘mutually disinterested’ and seek only self-realization are good and moral? Can’t all the parties behind the veil, on the basis of their self-seeking nature and intellectual rationality, choose altogether a principle of injustice yet claim it to be just? How can the Rawlsian system prevent corporate crimes of one society against another society, against the environment, or against God?

Rawls’s rebuttal to this charge would probably be that his justice as fairness is a purely procedural justice.[24] That is, the intention of his theory is not to give a comprehensive system of morality answering all the difficult questions, but to simply provide a practical platform for these answers to emerge. But such type of defense is in vain. According to Rawls, the original position prescribes all the principles of justice (and moral principles in general) to be the outcome of rational choice.[25] But I have shown that such kind of rational choice as required by Rawls has to be Kantian, and the conditions of the original position actually conceal Rawls’s egalitarian agenda. Therefore Rawls cannot justify the justice as fairness to be purely procedural.[26] Besides, this becomes Rawls’s self-destructive move: because of his reluctance of using reason to make judgments for moral controversies, he actually undermines the validity of reason.

To sum up, resting morality on fairness does not exclude corporate crimes or immorality, though some forms of immorality such as egoism will be greatly constrained. As Sterba comments, ‘Unfortunately, the goal of showing that morality is rationally required has been abandoned by most contemporary philosophers, who seem content to show that morality is simply rationally permissible.’[27]

Two Principles of Justice

Although Rawls does not define the substantive matters in the original position, he does insist that ‘the persons in the initial situation would choose two rather different principles: the first requires equality in the assignment of basic rights and duties, while the second holds that social and economic inequalities…are just only if they result in compensating benefits for everyone, and in particular for the least advantaged members of society.’[28] In Rawls’s terms, these two principles are still procedural, not substantive, because they are extended from the original conditions of equality.

These two principles can be laid out in the following formula:[29]

First Principle

Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

Second Principle

Social and economic inequalities are to be arranged so that they are both:

(a)   to the greatest benefit of the least advantaged, consistent with the just savings principle, and

(b)  attached to offices and positions open to all under conditions of fair equality of opportunity.

These two principles will necessarily lead to the priority of liberty, i.e. ‘liberty can be restricted only for the sake of liberty’, and the priority of justice over efficiency and welfare. The general conception is that ‘all social primary goods—liberty and opportunity, income and wealth, and the bases of self-respect—are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favored.’[30] The ‘just savings principle’ is concerned about the cross-generational justice: since the persons in the original situation do not know which generation they belong, they will decide that one generation should not exhaust resources but save for the good of future generations.[31]

It is notable that these two principles have served as the foundation of the modern constitutional democracy. The original position is an analogy to the making of the constitution when the lawmakers are ‘mutually disinterested’ and concerned about only the principle that protects individuals’ liberty as well as the long-term cooperation of the society. The reflective equilibrium is another analogy to the amendments of the constitution when different forces of the society reason back and forth, being guided by the justice as fairness, and continue to reach new agreements along the way.

As Christians, we do not have to agree with these two principles of justice to be ultimate. However, we must not lose our sympathy here because they also reflect primary biblical principles such as ‘love thy neighbors as yourself’, and protecting the oppressed and disadvantaged. Our problem with these two principles is primarily about their interpretation and application. If the interpretation of these two principles is always controlled by Rawls’s notion of fairness, their applications will necessarily reflect his presupposition of autonomous reason.

For example, according to the first principle, ‘each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all,’ interpretation is needed to explicate the meaning of ‘basic liberties’, such as what is considered ‘basic’, and what is considered ‘liberties’. When there are different opinions, those ‘considered judgments’ would be firstly consulted. What happens next is the process of reflective equilibrium. These ‘considered judgments’ would coordinate with the original position until the equilibrium is reached. If the coordination cannot achieve the equilibrium, i.e. stable political consensus, either the ‘considered judgments’ or the original conditions need to be modified. But Rawls fails to account for the origins of these ‘considered judgments’. Yet the origins of these ‘considered judgments’ is important for us to evaluate their justification. But according to Rawls, if the ‘considered judgments’ cannot win over the public consensus or persuade the public to modified the original conditions, whether they are substantively just or not, they would have to surrender to the ‘higher order’ of the procedural justice, presumably identical to the constitution[32], which is actually controlled by Rawlsian liberalism. Eventually this procedural structure has the inclination to approve those who hold the lowest standard of morality and to favor those who accept minimum ‘considered judgments’. In the end, the commonly accepted public morality leaves nothing but equal liberty and equal opportunity. The two principles of justice thus become the only two principles of justice.

The State and the Church

Because Rawls’s conception of justice concerns primarily the ‘basic structures’ of the society, Rawls’s view with regard to public authority is limited constitutionalism. ‘Since the constitution is the foundation of the social and political structure, the highest-order system of positive rules regulative in relation to other institutions, the constitutional liberties define and establish an initial position of equal liberty for all citizens within the basic social system in which everyone must begin to have a place.’[33] The constitution, therefore, must limit its authority within the purpose of protecting equal liberty and equal opportunity for all citizens with different life agendas.

For many pragmatic reasons, we must appreciate this self-limiting concept of constitution because it prevents the abuse of the state power to sponsor a particular political view at the cost of the resources of their dissidents. The constitution requests nothing more than ‘the two principles as the proper standard of justice in the case of fundamental form of the social system. Once given a social system satisfying the two principles of justice in its basic structure and so securing an equal liberty of the person, rational individuals may, if they wish, decide which voluntary schemes to engage in by estimating their expectation of well-being.’[34]

We must admit that even Christianity benefits greatly from this scheme of limited constitutionalism. Christian citizens living under this kind of political regime enjoy much more peace and freedom to express and practice their faith than other regimes of unlimited constitution, for a constitution cannot truly protect the rights of the citizens unless it is self-constrained and limited in its use of public authority. Without such a Rawlsian platform of limited constitution, it seems impossible for any other ideology to give a different political alternative to the unity and cooperation of the pluralistic society.

Waldron is helpful here for us to understand Rawls at this point: ‘Rawls is not saying that religious conceptions of equality or religious paths to equality are crazy or unreasonable…There is, he says, in modern society a diversity of comprehensive doctrines, some religious and some not, … everyone has to recognize that the ascendancy of any one such comprehensive doctrine can be maintained only by the oppressive use of state power.’[35] Therefore, Waldron continues, ‘Rawls leaves us then with two conclusions, so far as the religious basis of equality is concerned. First, the religious basis of equality may not be adopted or established as the official ideology of equality; and second, even individual citizens are not to appeal to their own convictions about the religious basis of equality in deciding how to exercise their own political power, in deciding how to vote on the basics of justice, for example, or in influencing the votes of others.[36] This is in relation to what Rawls called the equal liberty of conscience.

Why should we Christians be concerned about this Rawlsian scheme? My answer is that this scheme actively relativizes the absolute claims of Christianity and that it denies the capability of Christians on the basis of their faith to contribute in setting up the fair rules of politics. Every Christian, in my judgment, should feel troubled when a secular ideology such as the Rawlsian kind claims itself to be a superior ideology to the Christian faith, no matter how practical it appears to be.

Although Rawls insists that his agenda of equal liberty of conscience exists only for the state’s interests of public order and it does not presuppose ‘the notion that public interests are superior to private (or to ecclesiastical) interests,[37] it is definitely not so functioning in its actual application. In reality, the basic structures controlled by the Rawlsian liberalism consistently function as a political regime on behalf of the secular parties to actively exclude and suppress Christianity in many cases such as forbidding public prayers in schools, forbidding Christian groups’ use of public facility, and equal employment opportunity in the churches for homosexuals. The Rawlsian procedural justice actually constrains the substantive justice in relation to religious faith and promotes the substantive justice in relation to secular interests. The Rawlsian justice becomes itself a stakeholder in the game and demands everyone to become a political liberalist before they can start thinking of their own life philosophy.

Is this bad? A Rawlsian would ask. Why shouldn’t we be satisfied with the limited function of the constitution, which protects only equal liberty and equal opportunity, and leave all our public and religious concerns to the secondary legislation and public persuasion? Indeed, Christians should not be overly conscious to control the basic structures of a secular society because an earthly theocracy is never the calling of Christianity. So I am not saying that the only acceptable political regime to Christians is theocracy. I am saying that Christianity should not be excluded from the participation of designing the basic structures of the society in the name of equal liberty of conscience.[38] I want to demonstrate that Rawls’s style of fairness by the appeal to public reason is counterfeit neutrality. It produces nothing but the dictatorship of the secularism. It is based on the mistaken view of religious faith and reason.

For Rawls, the religious faith is merely a matter of faith, not a matter of reason. But such Kantian dichotomy ignores the fact that every matter of reason is religious. No reasonable claims, even the claims of Kant and Rawls, are free from their metaphysical presuppositions. In Rawls’s own word, ‘In acknowledging this principle [of justice], one does not commit oneself either to a particular metaphysical view of the world or to a particular philosophical account of knowledge.’[39] If this is truly the case, Rawls should not have allowed his own philosophical account of knowledge to dominate his design of the constitutional society. If the rule of the constitution is truly fair, it should allow every voice of religions and philosophy contributing in the making of the constitution and persuading each other.

But will my view lead to religious intolerance, if one religion successfully dominates the public consensus? A Rawlsian may ask. My responses are three: first, if the Rawlsian justice requests religions to exert their public influences only through the means of public persuasion, not through that of the constitution or the state, why does it not likewise request the religious tolerance only through the means of public persuasion as well? Second, if the Rawlsian justice assumes the diversity of the religious views in the society, it should not be overly concerned about one religious view to become the majority’s view. Third, if the Rawlsian justice is established upon the public consensus, it should not deliberately prevent a religious view to become the public consensus in advance.

 

Justice for the Pluralistic Society

We must admit that Rawls’s approach has some strength in the increasingly pluralistic world because it does not assert any single goal of the society and it does not make justice dependant on that goal.[40] But if we dare to challenge the Rawlsian justice, our critics will say, the burden of proof will be upon us to demonstrate why it should be otherwise. This is unfair, but we still have to take it in order to proceed in the public discourse.

Now let us look at the reality as seriously and pragmatically as Rawls does. Indeed we are facing an increasingly pluralistic society, and democracy is pragmatically the most acceptable regime in most societies of the world. If any ideology insists doing things only in its own way, it must induce disunity, oppression, or a civil war. The pluralistic society is a reality. But have Rawls provided a feasible solution to the pluralistic society? I certainly disagree. The problem lies in Rawls’s understanding of the nature of conflicts—he assumes that the root of conflicts is the different positions of rational persons, not a profound difference of values or worldviews. Rawls may be perceived very naïve in the postmodern context because he presumes that every rational mind will conclude in the same consensus (in my word, a mathematical interpretation of human sciences). This is why Rawls gives his hope of consensus to the invention of the original position.

But is the idea of original position really pragmatic? I assert it is not. Rawls’s approach of hypothetical social contract depends upon too many unrealistic conditions to attach to the reality. For example, the original position depends upon the hypothetic condition of a closed society. But the idea of a closed society is purely imagination. In today’s world every society is related to another society, whether in the way of competition or alliance. Putting a society in the context of international competition, the state’s interests are far beyond the social order and security. At the international level, the national interests can easily take priority over the two Rawlsian principles for the sake of the society’s survival. Consider the case of the national monopoly. The existence of a monopoly is a violation of Rawls’s second principle of justice, but it may be actually the wishful strategy of the national economics to survive in competition with other nations.

How about Rawls’s first principle of justice? Is it an acceptable principle for individuals? My answer is: it depends. The original position, from which the first principle is derived, prescribes ‘the only choice consistent with the full description of the original position.’[41] The sense of individuality is actually collapsed into one rational being.[42] The principle of equal liberty is more preferable to those who consider themselves rational, independent, and inherently equal to others. But for those who consider themselves superior or inferior to others, the principle of equal liberty become undesirable. Besides, it is almost unacceptable for any individual to be deprived of his or her own identity, in order to qualify the condition of the original position.

How about Rawls’s general conception of rational choice? Is it pragmatic to assume that everyone will agree on the principle of justice on the basis of the same rationality? Probably not. For many theorists, Rawls has not successfully proved that all the rational persons will choose the same principles behind the veil of ignorance. It is never safe to assume that the rational persons will not choose to take risks to create privileged positions reserved for only a few of the society. It is also inconclusive whether the rational persons will choose a different strategy if they have only limited knowledge about the future and self.[43] One important doubt is about the priority of liberty over other values[44], for in many places of the world the doctrine that ‘liberty can only be restricted for the sake of liberty’ is not in accord with the moral intuition of the public.

What is the pragmatic alternative, then, if we reject the Rawlsian principles? Before we answer this question from the Christian point of view, I would rather firstly evaluate the position of pluralism. According to the pluralism, all the values are fundamentally incompatible. The pluralists, therefore, do not seek to resolve the conflicts of values through the appeal of one recognized final authority.[45] As Kekes has accurately observes, the liberals’ approach to conflict resolution is to make the liberal values override other values with which people conflict.[46] The distinction between substantive values and procedural values is no more than a strategy to promote the overridingness of the liberal principles.[47] It is impossible, therefore, to assume the neutrality of the state. The pragmatic solution to conflicts is not to exclude different values from the state, but to allow a candid negotiation within the state. This is a continuous battle of values, but it does not rely upon the illusion of a fair and neutral conception of justice. For example, every state has its moral authority to decide whether to engage in a war. Every decision about the war is deeply related to the notion of substantive values. So in the every case of the war, there is no distinction between procedural justice and substantive justice for the state to pretend neutral.

Now we must speak for the Christian perspective. From the Christian point of view, we agree with pluralism that there is no neutrality of values. The Christian worldview is fundamentally incompatible with other worldviews, even the worldview of pluralism. As Van Til puts, ‘Epistemologically, there is no common ground between believers and unbelievers. Believers obey God as the epistemological authority; unbelievers rebel against God as the epistemological authority.’[48] Metaphysically, Christianity affirms that there is one truth, i.e., the truth of Christian God. Psychologically, everyone has the sensus divinitatis; some confess it, and some voluntarily suppress it. [49] The account for the pluralistic values is not because of the metaphysical plurality, but because of the universal rebellion toward God. True Christianity by its absolute feature must reject both the liberalism and the pluralism. Christianity, though recognizing the presence of pluralistic values, denies the validity of all these values and upholds the absolute value of Christianity (2 Corinthians 10:5).[50] For Christians, the true justice must be the justice of Christianity, i.e. the justice as ordained by God and revealed by God. Christianity claims the highest authority to define the most appropriate platform for all the principles of justice to be derived from. Christianity approves the principles of justice derived from other foundations only if they reflect the truth of Christianity.

The most fundamental Christian rejection of Rawls’s A Theory of Justice is that the ultimate justification of justice is not contractual, but covenantal. The covenantal approach is the best account for the existence of justice in the history: God created the world and ordained justice in the created world. All the notion of justice in human relationships are established on the foundation of God’s covenant with the created world. All men and women are equal because they were created equal as the image of God. Without God all the idea of justice must be fallible and unstable. It is fundamentally unjust to exclude the creator God from the conception of justice since he is the creator and fountain of all blessings. It is unreasonable to construe a theory of justice without considering the history of creation. And last, it is unwise to abandon God from the guarantee of justice in search of a stable system of justice.

But is Christianity practical? We say yes, if being practical means worthy of all the efforts and necessary costs. After all, the notion of justice should not be sacrificed by the expedience of superficial practicality. All the major reformations being considered just in the human history, such as the abortion of slavery, suffer severe loss and resistance. The notion of the priority of justice must entail the readiness of paying costs. For Christians, the pluralistic society is not a place to be avoided, but something to be encountered and conquered. Imagine how the apostle Paul preached the gospel in the Roman Empire, a society no less pluralistic than today’s world. The authority of Christianity, for Paul, is not through the world’s readiness of acceptance or human wisdom, but through the demonstration of the Holy Spirit and of power (1 Corinthians 2:4).[51]

It is true that the persuasion of Christianity should not rely upon the political power. The advantages of Christianity must be proved to the society by the churches’ active examples and the living out of sound Christian life. But it is wrong to forbid the persuasion power of Christianity to extend to the political arena. It is more consistent with the notion of justice that the beliefs about justice should be fully proclaimed to the situations when justice is required. It is true that there are many competing systems of justice in the pluralistic society, but it is exactly why Christianity calls it a spiritual battle. The Christian solution to conflicts is not to pretend the battle non-existent, but to fight a good battle.

At last, Rawls’s notion of constitutionalism is not without a value from the Christian perspective. At least it affirms the need of the basic norms for the society. And the sense of fairness is conformed to the biblical notion of impartiality. So let us not abandon Rawls’s idea completely, nor accept it in its entirety. I accept the Rawlsian justice as to the level of basic structures, though it must set a clearer limit to itself about what is considered ‘basic’. At least the idea of basic structures should not be used to exclude religious faith and promote secularism, for that is simply another form of civil religion. We must believe, as consistent Christians, that the Christianity does offer a legitimate ground for social cooperation, even in a non-Christian society, per the notion of common grace.

 

Bibliography

Bahnsen, Greg L. Van Til’s Apologetic. New Jersey: Presbyterian and Reformed, 1998. Lebacqz, Karen. Six Theories of Justice.Minneapolis:Augsburg, 1986.

Lyons, David (ed.). Rights.California:Wadsworth, 1979

Kekes, John. The Morality of Pluralism. NJ:PrincetonUniversity, 1993.

Rawls, John, A Theory of Justice. Mass: Harvard, 1971.

Rawls, John. “Constitutional Libertyand the Concept of Justice”. Lyons, David (ed.). Rights.California:Wadsworth, 1979.

Skinner, Quetin (ed.). The Return of Grand Theory in the Human Sciences.Cambridge:Cambridge, 1990.

Sterba, James P. (ed.). Ethics: The Big Questions.Massachusetts: Blackwell, 1998.

Waldron, Jeremy. God, Locke, and Equality.Cambridge:CambridgeUniversity, 2002.

周保松, “契約、公平與社會正義—羅爾斯「正義論」導讀”. This article is an introduction to the Chinese edition of John Rawls’ A Theory of Justice (Taipei, Taiwan: 桂冠, 1990).

 
(picture source: Dr. John Rawls from Wikipedia http://en.wikipedia.org/wiki/John_Rawls)

[1] Lebacqz, p.21.

[2] Rawls (1971), p.15.

[3] Lebacqz, p.33.

[4] Rawls (1971), viii.

[5] Ibid, p.4.

[6] Ibid, p.6.

[7] Ibid, p.454.

[8] Ibid, p.15.

[9] Ibid, p.327.

[10]. Rawls (1979), p.30.

[11] Skinner, p.15. Skinner comments: ‘He [Rawls] presents it, that is, as a continuation of precisely that style of abstract theorizing about the nature of man and society which we find in Locke, Rousseau and Kant, but which was supposed to have been finally superseded (so the end-of-ideology theorists assured us) by the coming of a purely empirical science of politics.’

[12] Rawls (1971), viii, and p251-257.

[13] Rawls, p.10, 253

[14] Ibid, p.viii.

[15] Waldron, p.240.

[16] Ibid.

[17] Lebacqz, p.34-35

[18] Ibid.

[19] Rawls (1971), p21.

[20] Ibid, p.20.

[21] Ibid, p.577-578

[22] Ibid, p.453-462

[
23]
周保松, “契約、公平與社會正義—羅爾斯「正義論」導讀”, p.35

[24] Rawls (1971), p.136.

[25] Lebacqz, p33.

[26] Rawls (1971), p.85 and 136.

[27] Sterba, p.105.

[28] Rawls (1971), p.14.

[29] Ibid, p.302.

[30] Ibid, p.303.

[31] Lebacqz, p.38.

[32] Rawls (1979), p27.

[33] Rawls (1979), p27.

[34] Rawls (1979), p.37.

[35] Waldron, p.236.

[36] Waldron, Jeremy. God, Locke, and Equality.Cambridge:CambridgeUniversity, 2002. p.236

[37] Rawls (1979), p.40-41.

[38] Ibid, p39.

[39] Ibid, p.42.

[40] Lebacqz,p.49.

[41] Rawls (1971), p.21

[42] Lebacqz, p.41.

[43] Ibid, p.45.

[44] Ryan, Alan. “John Rawls”. Skinner, Quetin (ed.). The Return of Grand Theory in the Human Sciences Grand theory, p.117.

[45] Kekes, p.53.

[46] Ibid, p.203.

[47] Ibid, p.204-207.

[48] Bahnsen, Greg (ed.). Van Til’s Apologetic, Chapters 6.

[49] Bahnsen, Greg (ed.). Van Til’s Apologetic, Chapters 6.

[50] 2 Corinthians 10:5, ‘We destroy arguments and every lofty opinion raised against the knowledge of God, and take every thought captive to obey Christ.’

[51] 1 Corinthians 2:4, ‘and my speech and my message were not in plausible words of wisdom, but in demonstration of the Spirit and of power.’

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