I’ve been wondering what it is that underlies my difficulties with both Dworkin and Rawls. After reading Ely’s paper on Dworkin, in particular, I’ve come to the conclusion that it’s an American thing. By which I don’t mean that it’s a legacy of of trends in American philosophy, enduringly marked by the influence of Emersonian Transcendentalism on one hand and Dewey’s Pragmatism on the other – although these are both distinctly alien to the British temperament, not least in their common emphasis on the unchallengeable meaningfulness of subjective experience. The history of American legal philosophy is similarly idiosyncratic, from a British standpoint. Hart characterises American legal theory as oscillating between the Realists’ “nightmare” of complete indeterminacy and entirely judge-made law, at one extreme, and Dworkin’s “noble dream” of a seamless web of laws and legal principles at the other. (Although on reflection the opposition may be more apparent than real. Dworkin pictures legal decisions being made by an omniscient judge called Hercules, who synthesises all the law there is based on the best and most appropriate principles. If Hercules is to be anything more than a figure of speech, somebody actually has to play that role and, in practice, make law. And in practice, as Ely points out, Dworkin’s own footwork is as nimble as any Realist’s.)
So if American philosophers, and legal philosophers, tend in their different ways to approach the world in a wide-eyed spirit of “how does this look to me, here, now?”, you can see how that might grate on a British ear. (I’m flashing back to my only attempt to read Zen and the Art of Motorcycle Maintenance, which I gave up at the point when the book’s teenage protagonist starts angrily disproving Plato – I was a teenager myself at the time, but I wasn’t buying that. See also Ayn Rand.)
But the point about Rawls and Dworkin is a bit different. Take Ely’s (instructive and entertaining) paper on Dworkin: it begins by asking, not how Dworkin can justify opposing racial discrimination while supporting affirmative action, but how he can justify the opinion that the decision in DeFunis v. Odegaard should be upheld as constitutional while that in Sweatt v. Painter should not. Dworkin was working (as was Ely) in the specific field of US constitutional law, and this gives his work a particular character. The task is not – as it might be for a British legal philosopher – to trace the development of a legal principle through its various imperfect expressions (in legislation and in court rulings), but to work with two distinct sets of ideas. On one hand there is the ideal – whatever the philosopher him- or herself holds to be just, true and good, e.g. the principle that government should be empowered to limit working hours or that heterosexuality should not be treated as compulsory. On the other there is: the Constitution. On one hand, the skyhooks of philosophical idealism (in both senses of the word); on the other, the Founding Fathers and what they thought was appropriate – or, more realistically, the end result of what they variously put forward as appropriate and collectively agreed not to strike out as inappropriate – to the needs of an eighteenth-century settler republic. Find an approximation to A somewhere in the text of B and you’re made. Find not-A (the exclusion or denial of A) in the text of B and you’ve got a job to do. Either way, the task at hand is not, in practice, to bring out anything immanent to the law but to knit together these two enormously disparate sources. You can’t work without a sense of what seems right to you, here, now, but at the same time you can’t work without reference to the text of the US Constitution, or the plausibly imputed intentions of its authors (or some more complex reading). Earthbound skyhooks.
This background doesn’t apply directly to Rawls (who WNAL), but it does seem to relate to something I find extraordinarily difficult in his thinking – and which, I think it’s fair to say, Hart struggled with as well. I understand the image of the ‘original position’, with individuals collectively deciding on the shape of society behind a ‘veil of ignorance’ as to who they are, what aptitudes and preferences they have and what role they would have in the eventual society. From this it is possible to derive a ‘general conception of justice’, representing the principles the parties to the original position would choose. So far so good: these are good tools to think with. But when Rawls goes on to say (here I’m quoting Hart quoting A Theory of Justice) that the general conception would mandate that
All social values, liberty and opportunity, income and wealth, and the bases of self-respect, are to be distributed equally unless an equal distribution of any, or all, of these values is to everyone’s advantage.
I feel like I’ve wandered into the wrong class. “Er, Professor? Did you say ‘wealth’ just now? Did you say, er, ‘income‘?” (Benign smile from professor. Brighter students shake their heads and tut wearily – hey, it’s a Trot, just what we needed…) We’re on a pretty high plane of abstraction, up there behind the veil of ignorance, but apparently money isn’t one of the things we’re higher than. Nor, it turns out, is politics. One of Rawls’s basic liberties – those liberties which (in Hart’s words) are “identified by the parties in the original position … as essential for the pursuit of their ends, whatever their ends turn out to be” – is the right to run for elected public office. In fact – and at this point I very nearly gave up trying to understand Rawls, even with the aid of Hart – we haven’t even left political procedure behind (beneath?) us: “when the parties in the original position have chosen the principles of justice, they move to a constitutional convention … [where] they choose a constitution and establish the basic rights of citizens”.
I’m feeling dizzy – pass me the Schutz.
The puppet exists and acts merely by the grace of the scientist; it cannot act otherwise than according to the purpose which the scientist’s wisdom has determined it to carry out. Nevertheless, it is supposed to act as if it were not determined but could determine itself. A total harmony has been pre-established between the determined consciousness bestowed upon the puppet and the pre-constituted environment within which it is supposed to act freely, to make rational choices and decisions. This harmony is possible only because both, the puppet and its reduced environment, are the creation of the scientist. And by keeping to the principles which guided him, the scientist succeeds, indeed, in discovering within the universe, thus created, the perfect harmony established by himself.
Better. And breathe.
Rawls – like Dworkin – takes what appears to be a very different and much more worldly approach than a frank utopian like Nozick, but on inspection there’s something quite different – and stranger – going on than a simple opposition between utopianism and realism. The difference between Nozick and Rawls isn’t that Nozick built castles in the air; it’s that when Rawls built his castles in the air, he built them on the ground.
I’ll explain. The thing is, when real people hold a real constitutional convention, all kinds of strange and unpredictable things happen: few could have anticipated the respective roles played by the Partito Comunista Italiano and the centrist Partito Socialista dei Lavoratori Italiano in formulating the Italian law on divorce, for example. (I talk about this in my book.) When imaginary people who don’t know who they are decide on their general conception of justice, the philosopher can know exactly what happens – because it’s not actually a thing that does happens, or can happen: it’s just a way of talking about the factors which in reality hinder the adoption of a conception of justice acceptable to all, and ex negativo what the features of that conception of justice would be. So, as for what happens when imaginary people who don’t know who they are hold a constitutional convention… my head hurts. The question seems meaningless, or badly-formed – as if one were to ask what would happen if dogs started demanding the vote. I spy earthbound skyhooks.
But enough about me – let’s talk about the greatest legal philosopher of the twentieth century, and what he thought of John Rawls.