Author of a new book on John Rawls, Katrina Forrester asks
what would happen if we put analytical political philosophy – often seen as too abstract, or too technical to be political – back into histories of twentieth-century liberalism? What might that tell us, not just about political philosophy, but about how we periodize the ideological regimes of the twentieth century?
I think 'analytical political philosophy' can help those who command capital and entrepreneurship as factors of production by providing or motivating the provision of superior Hohfeldian immunities under the existing legal framework. These may be defenses against anti-Trust law, or involve freedom of expression being extended to party political donations of a previously forbidden type, or arise from complex tax and regulation avoidance mechanisms which cross international borders and rely upon clauses in International Treaties which may have been drafted with the opposite intention.
Rawls is a case in point. Once you admit that where non-convexities arise- i.e. economies of scale or scope obtain- then the poorest may gain some vital benefit thanks to greater concentration of economic power in the hands of a narrow plutocratic class, then his theory is 'anything goes'. In other words, the middle class is shit out of luck because the plutocrat may be 'saving' very very wretched people scarcely visible to ordinary folk.
Of course, you may say 'Liberalism', historically, is whatever the middle class wants it to be. In the 'original position', it is quite possible that a middle class heterosexual of the majority ethnicity says 'under no circumstances would I want to live as a poor homosexual from the despised minority. I stipulate for a nation state where such people are painlessly put out of their misery.' One may reply, 'you'd feel differently if you actually were such a person. They have a lot of fun you know.' The problem here is that people may feel as strongly about race and gender as they do about justice as fairness. Furthermore, the suspicion that gay people from the minority are having a lot of fun just gets some people more steamed at their very existence. Surely, they should be mute specters of despair reminding us all that 'there but for the Grace of God...'
I've often wondered whether there would be any women in a Rawlsian society. The fact is child birth is painful. Rather than taking the chance I might have to go through any such thing, I'd prefer living in a Society where all girls are sterilized at birth. This does not conflict with the liberty principle unless any type of compulsory vaccination or other similar medical program is also ruled out.
What about Socially parasitic or otherwise harmful professions? Surely, if there was a good chance we wouldn't have to pursue one such, we'd want the thing banned? Something similar could be said about being a 'Political Philosopher'. Ecrassez l' infame!
The obvious flaw in Rawls's theory- viz. that it rejected collective insurance with a moral hazard safeguard in favor of making the effect on the worst off the benchmark- meant it couldn't really be 'contractarian' save in a piece meal fashion.
Why wasn't it 'operationalized' as an approach to actual incomplete contracts? One answer is that this was happening anyway. When an S&L, or Building Society or other Mutual Aid Society became subject to a Management Buy Out or otherwise sought to go public, it found it paid to offer a substantial reward, relative to accumulated assets, to its poorest members so as to get out from under the 'middle class' member who was better placed to gain 'dynamic' benefits going forward. In other words, focusing on the worst off was what the predatory capitalist would do in any case.
If I were a pimp, I'd focus on how my work helps the very severely disabled even if they represent a vanishingly small number of my clients. Similarly, if I were a drug peddler, I'd highlight the poor elderly woman whose glaucoma is eased by what I sell. There is a saying 'Hard cases make bad Law'. Rawls thought this just meant exceptional cases which '“distract our moral perception by leading us to think of people distant from us whose fate arouses pity and anxiety”. However, as Glanville Williams pointed out, it is the moral indignation, not pity or anxiety, such cases arouse which can cause us to judge badly. Yet Rawls's entire project is predicated on moral indignation- the feeling of 'unfairness'- as a constant feature in social life through all recorded history.
Rawls's genius was to erect a theory of Justice (as fairness, yet!) which focused on the hardest case so as to create a Legal system productive people would immediately flee thus causing it to collapse.
Naturally, it had no real world effects. Justice, like Higher Education, is a Service industry. Long run, it either pays for itself or is pruned back.
Forrester asks-
Why is it that such an influential theory within academia nonetheless had very little impact on the world outside it? There are a few ways to answer that question: one is to look at the theory itself and explain what it is about Rawlsianism, or liberal political philosophy in general, that made it quietist in this particular way. Another is to look at how liberals within academia failed to build liberal infrastructure outside the universities or failed to influence those who were trying to build that infrastructure. Both these ways are important to making sense of the successes and failures of left-liberalisms as public ideologies in the late twentieth century.
Back in the Seventies and Eighties, either you were for 'closed shop' Trade Unions or you were for those excluded from well paid Union jobs by 'Dad's Lad's' systemic discrimination. The trouble was, the Upper working class was voting for Reagan and Thatcher so as to reduce their own tax burden and to show contempt to 'Welfare Queens' or 'scroungers' or immigrants or whatever. The 'L word' was a handicap while the Left was associated with 'the Evil Empire'. The Trotskyite might become a neo-con without his real enemy having really changed. But that had always been happening.
Rawls believed Political Philosophy was supervenient on Economic theory. First you get an Econ 101 plug-in before you are put in the original position. But, for Rawls, Econ was 'robust'- i.e. did not alter much when circumstances altered. This meant Political Philosophy too was robust. It could yield a priori principles. During the Seventies and Eighties, Econ was shown not to be robust at all. Even mathematically it was 'anything goes'. By contrast, the Justice System was more flexible. When I was young we spoke of American competition policy as 'rules based' while the Europeans tended to be discretionary. However, at a later point, the reverse could be more easily maintained. Furthermore, unlike in Europe, American Justice has hysteresis effects associated with the Executive role in picking, and the Legislature's role in confirming, high judicial appointments. Much depends on the longevity of incumbents and who controls the Legislature when a vacancy arises.
In this context, an old fashioned 'Warren Court' liberal Political Philosophy found it difficult to make headway against Originalist or Federalist as well as Catholic jurists on the one hand and the Law & Econ type reasoning of Posner, Calaberese etc. Some bureaucracies were more hospitable but Sen-tentious 'capabilities' was an even better way to waste time and procrastinate as budgets shrank in proportional terms relative to private investment.
Sen gaining the Nobel, said “If my work in social choice theory was initially motivated by a desire to overcome Arrow’s pessimistic picture by going beyond his limited informational base,
but Arrow's work was useless save as a wank mag for mathematical economists who weren't actually economizing anything
my work on social justice based on individual freedoms and capabilities was similarly motivated by an aspiration to learn from, but go beyond, John Rawls’s elegant theory of justice, through a broader use of available information” (Sen, 1999).
Again, Rawls theory may have been elegant- indeed it featured in Welfare Econ 101- but nobody had used it for anything. It was obvious that what we all choose is 'risk pooling' or collective insurance with moral hazard provision. We don't get hung up on the hardest of all cases.
In the old days Marxists would point to Arrow & Rawls as demonstrating the futility of 'bourgeois ideology'. Then the Berlin Wall collapsed. Sad.
Sen, unlike Rawls & Arrow, came from a starving shithole. He deserved intellectual affirmative action. His successors- who had been victims of not just famines, but ethnic cleansing, repeated gang-rape and epistemic self-abuse, as well as horrendous persecution by reason of their gender, sexuality, disability and neurological diversity- would be even more worthy of similar accolades. Political Philosophy- like normative Econ- could provide safe spaces for such refugees from 'Reason' and 'Enlightenment', though, obviously Zoos might do a better job.
Indeed, this follows if there being a Rawlsian Political Philosopher is the condition for the existence of any 'Social Primary Good'- i.e. things citizens need as free people and as members of the society- e.g. rights (civil rights and political rights), liberties, income and wealth, the social bases of self-respect, etc. Clearly, if Rawlsian philosophers are needful, then they should be kept in a Zoo or other place of confinement. Failure to do so may lead to their wandering off or getting run over by a bus. This would disproportionately hurt the worst off in that society- so why risk it? Reclassify Rawlsians as a type of animal- so no civil or political rights are breached- and nothing could seem more just or fair.
Obviously, actually giving citizens 'Social Primary Goods'- e.g a nuclear deterrent so as to secure their civil and political rights- might not be a good idea. But this is no argument against confining Rawlsians to Zoos or other similar menageries.
Sen appears to have a counterargument-
In justice as fairness, persons accept in advance a principle of equal liberty and they do this without a knowledge of their more particular ends. . . .
but human beings would prefer that a dangerous lunatic be restrained even if they might themselves be that lunatic. Similarly, rather than live in a Society without primary Social goods, they would be obliged to take the chance that they might be the Rawlsian philosophy who must be kept in a Zoo so everybody else can have a good life. Of course, if Rawlsian philosophers don't contribute anything worthwhile, why not stipulate that nobody should be allowed to lead such a useless existence even if there is a chance you yourself may want to do so?
An individual who finds that he enjoys seeing others in positions of lesser liberty understands that he has no claim whatever to this enjoyment.
Yes he does. That 'lesser liberty' may be highly advantageous to the dangerous lunatic. Seeing him well secured, should be a source of satisfaction- even enjoyment- in the same sense that seeing a baby being given the maternal love it needs is highly delightful.
The pleasure he takes in other’s deprivation is wrong in itself: it is a satisfaction which requires the violation of a principle to which he would agree in the original position.
A pleasure may be wrong for all sorts of reasons. But we would never stipulate that our pleasures would be a priori wrong no matter in what body we end up. Why? This conflicts with the Human Psychology 101 plug-in we received. What we find pleasure and pain in is an ideographic matter of accommodation to our lot in life. We may- if we are fools or inveterate gamblers without any conception of the superiority of 'regret minimizing' strategies under Knightian uncertainty- accept a 'lottery in Babylon' such that we might be a beggar, a courtesan, or even the Caliph. But we would never be such fools as to stipulate that the pleasures and pains incident upon our social role should no longer count as such for us. We may, for prudential reasons, refuse to perform a pleasurable action- e.g. farting in the face of our Professor- but we would be foolish to deny that the thing would be pleasurable for a wholly moral reason. Indeed, it might be witty and apposite and a great contribution to political philosophy.
This does not mean a Just and Fair society would mandate farting in the face of Philosophers. In any case, if they are properly secured behind smell proof glass in suitably furnished cages, a Rawlsian Society can assure its Political Philosophers of protection from such nuisances unless of course they are, as may well be the case, contortionists able to fart in their own faces.
It could be argued that a Rawlsian philosopher must not be confined to a zoo because she is more in need of such human interaction as may ameliorate her condition.
Sen, setting out his stand for his 'capabilities approach' said
If it is argued that resources should be devoted to remove or substantially reduce the handicap of the cripple despite there being no marginal utility argument (because it is expensive),
there is a marginal utility argument. The 'cripple' has higher marginal utility of mobility precisely because he has little mobility and thus gains tremendous utility from that little. It is a big treat for a bed ridden person to be taken to the park. To a guy who goes jogging five times a week, that excursion would add little pleasure. The law of diminishing marginal utility applies. It is perfectly proper for a court to award higher damages to someone crippled by an accident than to a person who suffered pain but no permanent damage. True the expense of an outing to the park means that the cripple only gets to go out once a month, but we all understand why it is important he should have this little treat. We would want a collective insurance scheme that we participate in, to give a decent payout to a person whose misfortune was not his fault. Indeed, we too may suffer a similar accident this very day!
despite there being no total utility argument (because he is so contented),
Sen, very stupidly, thinks 'contentment' is associated with utility or pleasure. Courts have never held such a view.
and despite there being no primary goods deprivation (because he has the goods that others have
no he doesn't. He has lower 'natural primary goods'- e.g. functioning legs.
), the case must rest on something else. I believe what is at issue is the interpretation of needs in the form of basic capabilities.
This is already there in the notion of a natural primary good. Not having legs, or not having the ability to control those legs is a deficit in natural primary goods. As a matter of fact, we would readily agree to join a suitable insurance scheme such that we would get a large pay out if we were crippled.
Similarly, we must think of the Rawlsian philosopher as having a deficit in natural primary goods, not of basic capabilities. Their confinement in a zoo can't reduce capabilities because the natural primary good which might exercise that capability is severely missing. Of course, if zoos are expensive to set up and if nobody will pay to see Rawlsian philosophers rattling their little cages, then it would be enough to designate any place where such creatures reside as an animal sanctuary of some sort.
However, forgetting to make any such designation may be a superior option. The fact that we are capable of doing something can itself be a good reason not to do so.
As Sen confessed in 2013-
I have to rescue myself by saying I’m not a capability theorist […] I have great interest in capability, I am proud that I had a role in leading the discussion on this in contemporary political philosophy, but I don’t think you can have a theory of justice based on capability only, there is no way. Capability analysis can be an important part of a bigger story.
Sadly, that bigger story is shit. Even Katrina Forrester is unlikely to want to tell it to us. Res ipsa loquitur- the thing speaks for itself.
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