Justice Rights and the State: Rawls Theory of Justice - Term Paper Example

Leading ethical philosopher Rawls’ “Theory of Justice” (1971) is an undertaking to address the concept of distributive justice through the ic philosophical model of the social contract as propounded by Kant. However, Rawls challenges pre-existing theorem and goes further in hypothesising the justice theory under the aegis of “Justice as Fairness” (1999 (Ed) p.289). The “Justice as Fairness2 hypothesis further derives the following Rawlsian principles of justice: 1) The liberty principle; and 2) The difference principle (Rawls, 1999 (ed) p.65). Moreover, Rawls’ theory of justice attempts to reconcile the utilitarian and deontological approach to ethics by arguing with regard to the Kantian social contract model. However, whilst Rawls acknowledges that the “Justice as Fairness” model is rooted in “Kant’s notion of autonomy”; Rawls argues that “it is a mistake, I believe to emphasise the place of generality and universality in Kant’s ethics….. it is impossible to construct a moral theory on so slender a basis, and therefore to limit the discussion of Kant’s doctrine to these notions is to reduce it to triviality” (Rawls, 1999, (ed) p.221). Accordingly, Rawls goes further and considers justice in terms of the original position principle where justice is rooted in “veiled ignorance”: “No one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance” (Rawls, 1999 (ed), p.118). However, whilst Rawls theory of justice supports an element of the Kantian social contract philosophy; Rawls denounces Kant’s ideal of a cosmopolitan constitution under the cosmopolitan theory of justice and the focus of this paper is to critically evaluate Rawls’ theory in relation to the cosmopolitan theory of justice and provide a contextual critique of his philosophical model. To this end, I shall firstly evaluate the core elements of Rawls’ theory of justice and comparatively analyse this with leading proponents of cosmopolitan justice theory. As highlighted above, Rawls’ theory of justice propounds the liberty and difference principle, which alters the classic model of the social contract by justifying social inequality within a distributive “veil of ignorance” justification. On this basis, Rawls’ veil of ignorance proposition suggests that individuals in a society will inherently demonstrate a propensity towards a system of equality, which mirrors Kant’s social contract theory. In developing this proposition further, Rawls’ “first principle of justice” proposes that “first, each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with similar scheme of liberties of others” (1999 (ed) p.53). Moreover, according to Rawls, these basic principles are absolute and cannot be violated, which to a degree mirrors the deontological approach to ethics. Examples of these fundamental rights are freedom of speech and freedom from arbitrary arrest (Rawls, 1999 (ed), p.53). However whereas Kant’s theory of the social contract is underpinned by his emphasis of innate morality, Rawls’ philosophy acknowledges difference and social inequality as compatible within the “justice” paradigm. For example, in terms of unequal distribution, Rawls argues that inequality is acceptable on the difference aspect of justice under the second principle. To this end, Rawls comments that: “As far as possible, then justice as fairness appraises the social system from the position of equal citizenship and the various levels of income and wealth. Sometimes, however, other positions may need to be taken into account” (1999 (ed), p.84). This clearly undermines the Kantian ideal of the cosmopolitan system of justice, which is rooted in an innate moral propensity towards democracy as a result of human intellectual independence. Moreover, Kant’s theory of the rationale for being human suggests that it is the interrelationship between intellectual independence and morality that is central to concepts of democracy. In contrast, in acknowledging the reality of social inequality, Rawls goes further and attempts to justify this within his theory of justice model on the grounds that social differences are justifiable if they are of the greatest benefit to the least advantaged members of society (1999, (eds) p.84) . However, Rawls goes further and suggests that there can be unequal basic rights on grounds of “fixed natural characteristics” and that “if say, men are favoured in the assignment of basic rights, this inequality is justified by the difference principle….only if it is to the advantage of women and acceptable from their standpoint” (p.85). However, whilst the difference principle clearly affirms Rawls’ denouncement of the cosmopolitan justice principle; his argument appears to be inherently flawed in effectively sanctioning discrimination on subjective grounds. Moreover there is clearly a paradox in propounding inviolable fundamental rights on the one hand and justification of social inequality on the other hand; particularly with the weak subjective justifications for such breach of basic fundamental rights. This argument is further supported by critics of Rawls’ philosophy such as Wolff, who argued that Rawls was trying to justify inequalities of pre-existing political systems to argue that the justifications of such social inequalities meant that there was effectively no injustice (Wolff, 1977). Moreover, in rejecting Kant’s cosmopolitan constitution vision under the global method of distributive justice paradigm, Caney observes that “Rawls adopts the method he does to model the idea of toleration…..he makes negative claim that cosmopolitan principles of distributive justice are inappropriate because they exhibit intolerance toward non-liberal societies” (Caney, 2006 p.125). To this end, Rawls suggests that wealth is instrumental and further challenges cosmopolitan theories of justice, on grounds of the interrelationship between domestic and global political theory. This in turn challenges what Rawls feels is Kantian’s simplistic moral justification for the cosmopolitan theory of justice (Rawls, 1999 (eds) p.221). If we further consider Kantian philosophy, it is submitted that Kant’s philosophy goes further in referring to the correlation between intellectual independence and morality irrespective of religion or cultural beliefs in the “cosmopolitan constitution” ideal. This proposition has heavily influenced contemporary deontological ethical theory, which in turn has become extremely pertinent to the concept of international relations and human rights protection in the current political global framework. For example, beyond the intellectual intelligence paradigm is Kant’s assumption of the supreme moral principle of good will. This suggests that humans are innately moral and is supported by contemporary deontologist Somerville who refers to the “secular sacred” concept of ethics, which is that there are basic human rights and values that are common to humans irrespective of religious or cultural beliefs (Somerville 2006, p.xi) However, Somerville goes further and argues that the crux of ethics with regard to human rights protection is whether it is “inherently wrong?” which contrasts with Rawls’ preference for the veil of ignorance (Somerville, 2006 p.xii). Furthermore, Somerville argues in considering human rights protection, often the legal issue of human rights protection is inherently linked to the issue of whether it is ethical and that to consider ethics, “we must first ask whether what we plan to do is inherently wrong”(Somerville xi). Therefore, Somerville’s ethical imagination echoes Kant’s theoretical idealism of the supreme moral principle of good will that a true system of politics cannot… take a single step without first paying tribute to morality. For as soon as those two come into conflict, morality can cut through the knot which politics cannot unite” (Kant, translated by Nisbet, 1991; Quoted in Fiala, 2002: 27). However in terms of the current international political framework and mechanism for human rights protection, Rawls argues that international justice and political systems cannot be considered from such a simplistic perspective. Moreover, it is submitted that Kant’s belief in the presence of shared innate human morality is flawed and not reflected by reality. This is further supported by reference to Hobbensian ethical theory, which asserts that nature is scarce and “I put for a general inclination of all mankind, a perpetual and restless desire of power after power, that ceaseth only in death” (Hobbes, Leviathan, quoted in Morgan, 2001, p.523). Under Hobbes’ strand of realism, humans are only moral to the extent that they follow rules and regulations imposed by the state, which undermines any notion of innate “shared ethics” under the egalitarian cosmopolitan theory of justice. Moreover, Kant’s belief in the prevalence of innate human morality is arguably flawed and not reflected by the reality of the current political approach to foreign policy in international relations. Additionally, whilst Kant’s theory is rooted in the assumption of innate human morality, the realist perception is that human nature cannot be trusted. Indeed, Hobbes’ supporter Donelan argues that there is “senselessness for survival of being moral when you can have no confidence that the other will be also; when there is no common power over you” (Donelan, 1990). Conversely, Kant argues the following principles of international relations under the enlightenment paradigm: 1) The Freedom of every member as human being; 2) The equality of each with all the others as a subject; and 3) The independence of each member of a commonwealth as a citizen (Kant, 74). The emphasis on independence under the cosmopolitan theory paradigm is clearly at odds with Rawls’ veil of ignorance model. Moreover, Kant’s theory regarding the moral development of the state weighs heavily on the presumption that the civil state will uphold these rights and claims: “no-one can compel me to be happy in accordance with his conception of the welfare of others, for each may seek his happiness in whatever way he sees fit, so long as he does not infringe upon the freedom of everyone else within a workable general law…. he must accord others the same right as he enjoys himself” (Kant 74). Kant extended his idealist theory to postulate the “original contract” between man and civil society (Kant, 79), which Kant argued was vital for man to maintain his freedom under the concept of supreme morality (Kant, 46). However, whilst Kant’s assertions may be realistic within the state’s internal framework, it is questionable how far this notion of an innate human need for mutuality extends beyond a state’s border in international relations vis-à-vis other states. Kant put forward the argument that man would inherently be in favour of complying with this “implied contract” to prevent the anarchic state and that the sacrosanct status of the original contract extended to international relations with other states (Kant, 46). This idealism was rooted in Kant’s belief that an evolved moral state would become disgusted with war in the international system and that the idealism would result in an end to war (Kant, 125). Conversely, Rawls’ development of the social contract theory acknowledges social inequality and arguably uses the difference principle to circumvent the flaw in the Kantian emphasis on morality. However, if we consider this in context of contemporary international relations theory, Weber highlights that the central basis of international relations is state self interest and is to prevent other states gaining advantage, which is considered key in shaping national foreign policy (Weber, 1946). Moreover, according to Donelan “Their efforts result in a stalemate in which they survive” (Donelan, 1990). Thus according to Hobbes’ theory of realism, every state works with self interest to be better than others with a rough balance of power resulting in stalemate, where foreign policy and international politics is locked in a repetitive cycle (Donelan, 1990). However, as between states, there is no moral duty or extension of Kant’s “original contract” and therefore states can do anything to prevent the other gaining control (Jackson & Sorrenson, 2001). Jackson and Sorrenson further comment that “All states must be prepared to sacrifice their international obligations on the altar of their self-interest if the two come into conflict” (Jackson and Sorenson, 2001, p.69). This means therefore that progress in international relations cannot be made unless the international situation of each state is peaceful as if the state is suffering internal crisis then submit to self interest before international politics. Accordingly, this clearly contrasts with Kant’s ideal, however Kant’s ideal is flawed by the presumption of the moral state in the supreme morality of goodwill. Therefore, whilst Kant’s original contract and cosmopolitan constitution concept is clearly an ideal approach in shaping foreign policy it is inherently flawed by relying on the morality of human nature. On this basis, the flaws of Kantian philosophy would appear to support Rawls’ theory of justice and rejection of the cosmopolitan theory of justice particularly with regard to human rights. Moreover, the concept of “human rights” has been the subject of polarised philosophical debate as regards the rights of the individual versus legal protections conferred by the state, particularly in western liberal democracies. This tension between the legal protection of human rights, political constraints and the extent of individual protection highlights the conflict between legal enforcement of rights in practice and theoretical concepts of ethics. Indeed, Donnelly acknowledges the inherent problem of implementing a philosophical foundation of substantive theory of human rights (Donnelly, 2003, p.7). Furthermore, Donnelly posits that the concept of having a right and how to have a right presumes the notion of entitlement; however the central element of importance is having these fundamental rights enforced (Donnelly, 2003, p.7). Furthermore, Donnelly highlights the point that the “the ability to claim rights, if necessary distinguishes between having a right from simply being the (rights-less) beneficiary of someone else’s obligations. Paradoxically, then “having” a right is of most value precisely when one does not have the right.” (Donnelly, 2003, p.8). It is submitted that this observation is arguably crucial to the practical success of the shared ethics paradigm in terms of the innate morality informing human adherence to basic fundamental rights. Moreover, Donnelly questions the notion of “shared” rights as in a “Hobbesian state of nature, rights would never be respected; at best disinterest or self interest would lead duty-bearers not to deny the right holder the object of her right (Donnelly, 2003, p.8). Accordingly, Donnelly’s points highlight the point that whereas ethics refer to the morality of human rights, this can contrast with the actual enforcement of morality as defined by ethical theory under an international legal framework. Indeed, Donnelly highlights the point that ““Human rights traditionally have been thought of as moral rights of the highest order. They have also become, as we will see in more detail later, international legal rights” (Donnelly, 2003, p.11). As such, this has led to commentators questioning the concept of human rights in international relations and whether they in fact are a fiction of Western liberal democracies, which would further lend support to Rawls’ rejection of the cosmopolitan theory of justice. However, it is submitted that Rawls’ justification for the rejection of the cosmopolitan constitution through the difference principle and veil of ignorance is inherently flawed and paradoxical. For example, Rawls on the one hand argues that the liberty principle and justice as fairness concept intrinsically presses the existence of inviolable basic human rights, which would suggest a support of the cosmopolitan system of justice to a degree. However, conversely Rawls suggests that these inviolable basic human rights can be diluted and justified on the difference principle, which is contradictory. This paradox is further compounded by the somewhat weak justifications for the difference principle and presumption of subjective compliance with social inequalities as being compatible with an overall model of “justice”. Indeed, Caney asserts that “there is an additional incoherence in his thought for he rejects some proposed human rights that are a precondition of other human rights that he affirms. His theory thus violates the criterion of coherence” (2006, p.128). Therefore the above demonstrates that whilst Rawls’ theory of justice by his own acknowledgement developed from Kantian deontological philosophy, Rawls acknowledged Hobbesian cynicism in relation to the innate morality of human beings. Moreover, this is arguably the crux of Rawls’ rationale in rejecting the cosmopolitan theory of justice. However, whilst Kant’s social contract model and the cosmopolitan constitution concept is clearly flawed particularly when considered contextually within the contemporary global framework of international relations; it is submitted that Rawls’ justification from departing from this model is inherently flawed. On the one hand, a central element of Rawls domestic political theory is that there are basic fundamental human rights and that “persons should not fare worse in life because of their social identity” (Caney, 2006, p.127). However, whilst this is reconcilable with the liberty aspect of Rawls’ theory of justice; it clearly contradicts the difference aspect of his justice model as surely “it is equally objectionable that persons fare worse in life because of their national or civic identity and yet this is exactly what Rawls’ Society of well-ordered Peoples would entail” (Caney, 2006, p.127). Moreover, it is submitted that a central basis for this intrinsic weakness in Rawls’ theory of justice is the fact that he fails to adequately address global distribution of justice and focuses on domestic theory, which ignores the reality of the correlation between domestic and international political theory. As such, it is submitted that a fundamental weakness in Rawls’ justice model is the need to acknowledge global perspectives of distributive justice notwithstanding that his theory may continue to reject the cosmopolitan ideal. BIBLIOGRAPHY Caney, S. (2006). Justice Beyond Borders: A global political theory. Oxford University Press Donelan, M. (1990) Elements of International Political Theory. Oxford University Press Donnelly, J. (2003) Universal Human Rights in Theory and Practice. Cornell University Press Fiala, A. G (2002) The Philosopher’s Voice. Suny Press Jackson, R and Sorenson, G. (2001) Introduction to International Relations University Press Kant, I. (1991) Kant’s Political Writings, translated by H.B. Nisbet and edited by Hans Reiss. Cambridge University Press Morgan, W. (2001) Questionable Charity: Gender, Humanitarianism, and Complicity in American Literary Realism. University Press of New England Nisbet, H. S. & Reiss, H. S. (1991). Kant: Political Writings. Cambridge University Press. Rawls, J. (1999) (eds.) A Theory of Justice. Oxford University Press Somerville, Margaret. A.(2006) The ethical imagination: journeys of the human spirit. Anansi Wolff, R. P. (1977). Understanding Rawls: A Reconstruction and Critique of a Theory of Justice. Princeton University Press. Read More