Société québécoise de science politique

Contra Contract: A Brief against John Rawls' "Theory of Justice"Author(s): Leon H. CraigSource: Canadian Journal of Political Science / Revue canadienne de science politique, Vol. 8,No. 1 (Mar., 1975), pp. 63-81Published by: Canadian Political Science Association and the Société québécoise de sciencepolitiqueStable URL: http://www.jstor.org/stable/3230983Accessed: 08/05/2009 20:01

Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available athttp://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unlessyou have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and youmay use content in the JSTOR archive only for your personal, non-commercial use.

Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained athttp://www.jstor.org/action/showPublisher?publisherCode=cpsa.

Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printedpage of such transmission.

JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with thescholarly community to preserve their work and the materials they rely upon, and to build a common research platform thatpromotes the discovery and use of these resources. For more information about JSTOR, please contact support@jstor.org.

Canadian Political Science Association and Société québécoise de science politique are collaborating withJSTOR to digitize, preserve and extend access to Canadian Journal of Political Science / Revue canadienne descience politique.

http://www.jstor.org

Contra Contract: A Brief against John Rawls' Theory of Justice

LEON H. CRAIG University of Alberta

He said, he knew no reason, why those who entertain opinions prejudicial to the publick, should be obliged to change, or should not be obliged to conceal them. And, as it was tyranny in any Government to require the first, so it was weakness not to enforce the second: for, a man may be allowed to keep poisons in his closet, but not to vend them about as cordials ...

The King of Brobdingnag, as recalled by Gulliver

I

It is my intention to offer a case against John Rawls' A Theory of Justice, and especially the part that purports to show that guaranteeing an extensive personal liberty is a task of justice. Rawls refers to his conception as an attempt "to generalize and carry to a higher order of abstraction the traditional theory of the social contract as represented by Locke, Rousseau, and Kant" (p. viii).' Thus I intend my arguments, appropriately extended, to tell against other political theories which are similar in their employment of the social contract idea. Since the criticisms I offer, if allowed, would seem to damage the theory beyond repair, I should like to affirm at the outset my appreciation for what Rawls has attempted, since it makes the limitations of this approach especially vivid. Even those who fundamentally oppose its basic character may find that it enriches in surprising ways the alchemy of their thinking on these matters.

As have others in the tradition, Rawls offers a theory of social justice whose claim to virtue rests upon its origins in a mythical contract. The description of an "original position" (oP), and the outcome of a bargain struck therein by "persons in the original position" (POP) on how to adjudicate interpersonal disputes, is meant to have such a strong intuitive appeal that our natural sense of justice (or our natural appetite for justice) will be satisfied, and so we ratify it, at least in preference to traditional alternatives. But while it is true that his principles of justice are obliged to accord with human nature, Rawls means his principles to be understood as conventionally arrived at; that is, justice, for Rawls, is conven- tion.

'Unless otherwise indicated, the page numbers in parentheses in the text of this paper refer to John Rawls' A Theory of Justice (Cambridge, Mass. 1971). This paper grew out of a par- ticularly stimulating seminar conducted by Professor Bill Diggs (University of Illinois). However, as Professor Diggs strongly objected to the general thrust of the criticism of Rawls which this paper presents, he should in no way be burdened with any responsibility for it. Colleagues at the University of Alberta, Professor T.C. Pocklington, Professor D.J.C. Car- michael, and Mr Donald Andrews, read earlier drafts of this paper and made numerous helpful suggestions which, I hope, are reflected in its finished form.

Canadian Journal of Political Science/Revue canadienne de science politique, viii, no. 1 (March/mars 1975). Printed in Canada/ Imprime au Canada.

Furthermore, the strength of his theory's main appeal is meant to proceed more from the manner in which it was generated than from a final outcome it seeks to realize. Though Rawls has firm ideas on what this outcome should be like, and no doubt hopes we joint in finding it attractive, nonetheless the rightness of it is underwritten by its being the outcome of society functioning through his notion of justice. If we claim not to find his vision of the ultimately good society very appealing, we are probably outside the audience Rawls is primarily addressing. His ambition is to offer a theory "which best approximates our considered judge- ments of justice and constitutes the most appropriate moral basis for a demo- cratic society" (p. viii).2 This is to say, Rawls assumes acceptance of, among other things, a fundamental individualism3 that places a premium on broad indi- vidual freedoms or rights, either as inherently good or as a primary means to some further good (as opposed, say, to treating liberty as the residuum after claims of good social order have been met). The tradition of thought is familiar as Liberalism, after the manner of Locke, the Utilitarians, and J.S. Mill. Paren- thetically, I do not agree with Rawls that Rousseau is a party to this view, since his idea of the freedom society ought to afford (that is, as outlined in Treatise du contrat social) is not one of personal liberty.4 More to the point, Rawls no doubt appreciates his limited persuasiveness with, for example, Platonists or Marxists. But, if we are at all sympathetic to liberal democracy, Rawls desires that we direct our attention to how his principles emerged, and if we cannot fault his conception there, he would expect us to accept the outcome (so long as it is not intuitively monstrous), for it is just.

II

Since it is the "fairness" of the oP that is meant to lend Rawls' theory of justice its clear appeal over alternative notions, I shall examine its structural features with some care. It will further this purpose to sketch first the main outlines of the oP and the nature of bargaining that transpires therein and which purportedly leads to two basic principles of justice; here we necessarily abstract from a dis- cussion richly detailed. Subsequently, however, certain of these details will be brought forward for scrutiny as well.

What we are asked to imagine, then, is a gathering of competent adults divested 2Most commentators on Rawls understand the limitations he sets for his project and seem generally to endorse them. For instance, Michael Lessnoff ["John Rawls' Theory of Justice," Political Studies xix (1), 63-80] considers "one of the most interesting features of Rawls' theory" to be the claim "that from his conception of justice can be derived the essential norms of liberal democracy" (p. 67). 3Rawls, replying to other critics, protests against reading too much into this implicit indivi- dualism: "the theory does not hold that human beings are self-sufficient; nor that social life is simply a means to individual ends. Persons' more particular desires and preferences are not thought to be given, but (rather) to be shaped by social institutions and culture. The view is individualistic in the minimal sense of stipulating that society is composed of a plurality of human persons for whom an equal liberty and the right of dissent is to be maintained." See his "Reply to Lyons and Teitelman," in The Journal of Philosophy LXIX (18), 557. It is my opinion that the effects of even this "minimal sense" of such individualism are quite pervasive, and I intend to argue against it, partly on Rawls' own grounds (i.e. his moral psychology). 4A good exposition of this aspect of Rousseau's thought is Patrick Riley's "A Possible Ex- planation of Rousseau's General Will," in the American Political Science Review LXIV (March 1970), 86-97.

64 LEON H. CRAIG

Une critique du K Theory of Justice * de John Rawls

Le << Theory of Justice >> de John Rawls constitue une importante contribution a la tra- dition liberale du contrat social. La recherche d'une contre-proposition a l'utilitarisme amene Rawls a tenter de formuler deux principes de justice sociale qui soient fondes sur la seule connaissance generale de l'univers et non sur des circonstances individuel- les (telles le sexe, la situation historique, la classe sociale et la race) susceptibles d'en alterer l'application : l'optimisation de la liberte et la distribution des biens sociaux qui favorise la classe la plus demunie.

Selon l'auteur, cette analyse comporte d'importantes faiblesses. Premierement, les principes generaux de Rawls lui apparaissent inacceptables en tant que specifications deliberatives d'une part parce qu'ils sont difficilement applicables aux situations impli- quant des problemes de justice sociale et d'autre part parce que l'ensemble des connais- sances scientifiques concernant l'etre humain et son environnement ne peuvent fonder des principes generaux de justice sociale dans la mesure ou elles demeurent encore aujourd'hui au cour de la problematique normative. Deuxiemement, Craig considere que l'argumentation employee par Rawls pour defendre son principe d'optimisation de la liberte n'est pas tres persuasive puisqu'elle repose sur un suppose consensus concer- nant la liberte de pratique religieuse, consensus qu'elle erige en paradigme applicable a toutes les libertes. Enfin, I'auteur souligne que, dans la structuration des circonstances deliberatives de ses principes, Rawls ecarte a priori toute consideration des theories non liberales de la justice.

of all particular knowledge about themselves: they deliberate behind a "veil of ignorance" as to the historical period in which they live; the personal attributes, deficiencies, and talents they enjoy; the socioeconomic situation they are born into; and the actual prospects life presents them; in sum, without any knowledge that might burden the proceedings with partiality. They share a primordial equal- ity (which Rawls suggests "corresponds to the state of nature," p. 12), based on a common ignorance of their own and each other's fate, a common complete knowledge of all general laws of natural and social science, a common apprecia- tion of the fact that cooperating in a society with other men yields many benefits, but that it entails as well chronic conflict. Perhaps most important, they share a common desire to find a means for resolving all such conflict in a manner mutu- ally acceptable; that is, they are motivated to seek principles that will define jus- tice in social settlements. Each person is presumed to be self-interested and rational in the sense that he seeks to advance his own prospects for a good life, though he lacks all knowledge of what such a good life comprises. He knows only that whatever final good he pursues, his chances for success are enhanced by his having a larger share of "primary goods." These are understood to be the uni- versal means for the pursuit of any human end and consist of certain goods natur- ally distributed (genetically, such as health, intelligence, beauty, talent, vigour, imagination), and certain goods distributable through the social system (rights and liberties, opportunities and powers, income and wealth).5 It is the latter that is the concern of social justice in the first instance, although it is conceivable that deficiencies in the former may be compensated for by gaining a greater portion of the latter.

5In the process of refining his theory, Rawls adds "self-respect" as a social primary good enjoying a "central place" (p. 62), as "perhaps the most important" (p. 440); the many problems involved with this idea can be ignored for purposes of our discussion.

The POP are interested in arriving at an agreement upon principles of justice for determining the best institutional arrangement for allocating the goods made possible through social living. Since their situation in the oP is one of equality, and since they lack all particular information about their contingent fate which would allow any one of them to argue for an arrangement that would further the interests of that fate, their rationales would all be the same (p. 139). Lacking a better suggestion, they would agree to equal shares for all, since no one could know that a non-equal distributory scheme would really operate to his advantage. If, however, a non-equal distribution of the burdens and rewards of society can be shown to result in a net gain over a simple equal share for all members of society, presumably the POP would prefer such an arrangement to one of simple equality, notwithstanding the net gains being disproportionate (for we must agree that rational persons are not afflicted with envy, a "special assumption" about rationality that Rawls argues for with certain qualifications; cf. p. 143, 530 f.).

It is Rawls' view that the social primary goods are of two kinds, and each kind admits of treatment by a separate principle of justice. On the one hand, there are the fundamental liberties and opportunities which are retained in equal portion by each person as a measure of equal citizenship; and on the other hand, there are those goods which may vary in distribution (for the mutual benefit of all), including the powers and rights of authority, income, and wealth. Thus, POP would freely contract to form a society which (ultimately) embodied two prin- ciples of justice. Rawls states these principles in a "tentative" formulation (sub- ject to refinement and qualification by his later discussion) as: "First, each per- son is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. Second, social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's ad- vantage, and (b) attached to positions and offices open to all" (p. 60).6 A further analysis of the concerns promoting the second principle leads Rawls to restate it as a "maximin" solution: "Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity" (p. 83). Moreover, the serial order of these two principles is meant to be retained: the "equal liberty" guaranteed by the first principle must be ful- filled at all times for all citizens, and cannot be traded for greater distributive shares of social and economic goods which are allocated according to the second principle (p. 541 f.).

III

I have reservations about both parts of Rawls' conception of justice, but it is to the first principle concerning equal liberty that I shall direct more effort. Initially, however, I should like to invite attention to some troubling particulars of the original position as Rawls has structured it, since it is a most important part of my argument that no acceptable idea of justice could originate in that setting, or anything like it. I mean to challenge the credibility of the "original position"

6Rawls' final version of the principles is considerably more complex and not of particular concern to this critique. His statement of them is in article 46 (pp. 302-3).

66 LEON H. CRAIG

Rawls has hypothetically constructed and its appropriateness as a set of delimit- ing parameters for moral argument.

Rawls argues that the contractarian approach is preferable to classical Utili- tarianism (although not necessarily in this case over the "more modern" concep- tion of Utilitarianism employing an "average utility," i.e., per capita, principle), because the classical version cannot adequately cope with the problem of popu- lation size (see p. 162), whereas it can be treated as a decision by POP. Popula- tion size is merely one of several problems of intergenerational social justice which Rawls believes his theory can deal with, and which have been especially vexing for liberal thought (another being capital savings; his argument is meant to ac- commodate social development generally). POP can in effect choose what size of group humanity is to be, and presumably would choose such that the material resources of the world would not be strained in providing amply for all. On closer examination, however, this kind of decision requires transcending the limitations of the oP conception. Stated somewhat facetiously, what these persons are being asked to approve is the possibility of their not existing once the veil of ignorance is removed. Given the attention Rawls has paid to the awesome responsibility and serious nature of decisions made in the (albeit hypothetical) oP, how each person therein must be assumed to exercise great care in not jeopardizing his future prospects, some scepticism on this matter seems appropriate.

Let us be clear about what is at stake here; to repeat, it is the credibility of the deliberative assumptions (as Rawls has cast them) that is being tested. In dis- cussing his characterization of oP and POP elsewhere, Rawls would seem to have successfully protected himself from criticism. He declares, "the original position is not to be thought of as a general assembly which includes at one moment every- one who will live at some time; or, much less, as an assembly of everyone who could live at some time. It is not a gathering of all actual or possible persons. [This would be] to stretch fantasy too far." Following this reasoning through, Rawls concludes that each person in the oP, being divested of particularity, is equally representative in his reasoning of all people: "Therefore, we can view the choice in the original position from the standpoint of one person selected at ran- dom." (p. 139) This seems plausible enough until one considers a problem such as "population size," which Rawls introduces for his own reasons (demonstrating a way in which his contractarian approach is superior to classical Utilitarianism).

As one ponders restricting population as a matter of justice, the limitations in- herent in Rawls' individualistic perspective emerge with devastating results. How can the reasoning of any de-personalized individual reasoner be representative of all people (conceived individually), when the collective term "all" is a variable dependent upon decisions made in the oP? That is, how can reasoning represent individuals POP decide not to create? One may conclude that there ought to be fewer people in the world (or parts thereof) in order that each person may have more goods, but only if one is assured one will be among those left after the reduction.

Rawls solicits agreement on this point by surreptitiously providing such assur- ance, but by so doing, renders his resolution of the issue chimerical. For notice that, whereas one might induce widespread assent to the general (and quite ab- stract) proposition that population should be limited, one cannot expect a similar

Contra Contract 67

congeniality concerning a proposition that includes recognizing the possibility of each particular person's non-existence, which most people would find mind- boggling. Rawls contends, "it is important that the original position be interpreted so that one can at any time adopt its perspective. It must make no difference when one takes up this viewpoint, or who does so ..." (p. 139). But, clearly, any person who accepts this invitation knows his existence is not in doubt. So, each of us in turn finding the proposition to limit population not personally threatening, can agree with it. However, the resulting consensus, being so contrived, is meaning- less, and cannot serve Rawls' philosophical purpose.

When we tackle a problem such as "population size" or "capital savings," we necessarily transcend the perspective of the individual person and take up instead a societal perspective; that is to say, we must appeal to the common good of some collective whole that is not adequately understood as simply the sum of individual goods. While this perspective involves ambiguities and problems of its own, we are driven to adopt it by the perplexities we regularly encounter with issues such as the ones being considered here. Indeed, we are provided especially revealing evidence that such is the case upon recognizing that this is precisely what Rawls does (apparently unwittingly) when he seeks to replicate the reasoning of a de- personalized POP on a subject such as limiting population. He is really adopting a trans-individual standpoint, although his language and method obscure this perspectival shift.

I shall return to this question of appropriate perspective later. But for the im- mediate purpose, suffice it to emphasize that the problem of "population size" reveals Rawls' conception of POP to be, at the least, intuitively paradoxical. This is sufficient as a fundamental criticism of Rawls, since the justification of his theory rests importantly on its being the outcome of deliberations conducted under con- ditions intuitively recognizable as appropriate (this being the original basis of "justice as fairness"). In short, we have argued that Rawls' conception of POP is not credible.

A second problem with the oP concerns the kind of knowledge available to the decision-makers. They are to have access to all the laws of physical and social science (i.e., all the general knowledge about the natural and the human world) so that their conclusions might be congruent with whatever is known about reality. Surely Rawls is aware that such knowledge itself is problematic, that the general epistemological claims of science continue to generate controversy.7 Perhaps such problems as pertain to a science of the physical world can be ignored without seriously compromising the credibility of the OP, but the same cannot be said for the epistemological problems of the social sciences. Scientific knowledge of human reality is fraught with such peculiar difficulties that it can be plausibly maintained that a science of human behaviour is in principle impossible (given a paradigm of scientific knowledge more or less modeled upon the physical sciences) .8

7Thomas Kuhn's The Structure of Scientific Revolutions (Chicago 1962, 1970) is merely one of the more prominent challenges to the univocal objectivity claimed by modern science. The discussion this book has generated demonstrates clearly that there are live issues in this area. See also Norwood Russell Hanson's Patterns of Discovery (London 1958), Michael Polanyi's Personal Knowledge (London 1958) et al. SPeter Winch's The Idea of a Social Science (New York 1958) is one of the better known examples of this line of argument. A recent and especially lucid presentation summarizing

68 LEON H. CRAIG

One need not defend the position of this last statement in order to make a point against Rawls. One need only call attention to his failure to fully appreciate its implications for his project. Rawls states: "It is taken for granted ... that [POP] know the general facts about human society. They understand political affairs and the principles of economic theory; they know the basis of social organization and the laws of human psychology. Indeed, the parties are presumed to know whatever general facts affect the choice of the principles of justice" (p. 137). This implies a substantial consensus about "political affairs," "economic theory," "social organization," and "human psychology" that I contend does not exist, even (or perhaps especially) among specialists. These are indeed factual matters, but there are imposing barriers to their empirical settlement, some of which Rawls occasion- ally concedes (see p. 121). Whosoever would presume to adumbrate such "gen- eral facts about human society" must be prepared to defend his description, since it will be in important respects speculative and personal, and thus challengeable.

Indeed, and I shall be returning to this point repeatedly, it is "knowledge" about the real nature of man that is at the centre of much moral controversy: what are man's real needs, how is character formed, how does he learn, what are his real possibilities, how does he (or can he) fit into the rest of the natural world, etc. Rawls has his own view of "moral psychology" (as he calls it), and devotes chap- ter 8 of his treatise to it, but by doing so, he implicitly acknowledges that the question (or constellation of questions) is philosophically arguable, not some- thing one would expect to settle "scientifically."9 And whatever psychological knowledge one imports to the oP must have something to recommend it besides its being congenial to moral conclusions one intuitively wishes to see established.

Rawls is concerned simply with removing sources of bias or partiality from deliberations in the original position. The idea is that if POP reason using only knowledge from which all particularity has been abstracted, they will be able to formulate and agree upon principles of justice, and such principles will be those Rawls has explicated (or at least ones basically similar). One can readily allow that biases resulting from self-interest and/or provincialism are a common source of discord in moral discussion. But this is far from concluding that such biases are either the universal source, the most basic source, or even the most common

most of the major issues here is Alan Ryan's The Philosophy of the Social Sciences (London 1970). Phenomenological studies offer another source of criticism directed at any attempted science of man modeled on the physical sciences. See, for instance, Maurice Merleau-Ponty's Structure of Behavior (Boston 1963) or Phenomenology of Perception (London 1963), especially the first four chapters. 9Michael Teitelman in "The Limits of Individualism" (Journal of Philosophy LXIX (18), 545-56) offers a critique of Rawls in the spirit of Marx's early writings that supplements our own critique in interesting ways: "it is obviously of great importance what conception or model of individuals is permitted in the basis of the theory. If we allow the appropriate assump- tions in the model, we can guarantee the inference to any principles we would like to generate" (p. 546). Teitelman charges that Rawls has prejudiced his theory of justice in that very way. We agree with the spirit of Teitelman's criticism, but our own diverges from it somewhat on this point. We argue that Rawls' theory of justice is not even wholly consistent with Rawls' own model of man.

Lessnoff, in "John Rawls' Theory of Justice," also recognizes the "knowledge problem" we refer to when he concludes that Rawls' conception is "a social contract theory, and highly illuminating about the merits of that style of theorizing. But it also shares some of the defects of social contract theory: it assumes that we know more about human nature than we really do; and it assumes that human nature is more uniform than it probably is" (p. 78).

Contra Contract 69

source of disagreement. Rather, it seems to be general views of man and the world that differentiate (at least in part) the respective moral advice of, for instance, Plato, Aquinas, Hobbes, Kant, Mill, Marx, etc. No doubt these authors' general views were strongly influenced by their respective particular experiential circum- stances, but what abstraction process would POP have access to (that I certainly lack) which would allow POP to sift the general truth from the presumably biased original presentations? And which of such views is to provide the basis for delib- erations behind the veil of ignorance? Clearly, principles of justice will vary ac- cording to which of these perspective is adopted. Are POP to look at the world through the eyes of Plato or Hobbes, Marx or Mill (to mention only some im- portant examples of differentiable perspectives)? The hypothetical construction of an "original position" is an illusory solution for coping with moral debate, and perusing the shelves of any general social studies library makes concrete the problem of deciding clear criteria for what would be admitted behind the veil of ignorance. Will Marx's Capital be included? Michels' Political Parties? Machia- velli's The Prince? Freud's Introductory Lectures on Psychoanalysis? de Tocque- ville's Democracy in America? Skinner's Beyond Freedom and Dignity? Gibbon's Decline and Fall of the Roman Empire? Morgenthau's Politics Among Nations? If the entire corpus of social and psychological writings is made available to POP, construction of the oP has not accomplished Rawls' intention, as the debate would continue indefinitely, in a manner with which all are familiar. I am not arguing that there is no objective truth about man. But I am insisting that the substance of such truth remains at the crux of moral debate, as is exhibited throughout the tradition of political and moral philosophy. Fundamental issues cannot be re- solved by appealing to an original position simply because it was structured to be impartial (assuming such a structuring is possible, of which I am not convinced); for bias is not necessarily the obstruction, but rather lack of agreement on what is the truth about man.10

Nor does it seem possible to formulate a substantive theory of justice which is somehow neutral in regard to these conflicting "world views." Although Rawls is primarily concerned with ensuring an outcome compatible with liberal democ- racy, he seems to think he has preserved just such a neutrality. But as I shall at- tempt to demonstrate in a subsequent section of this paper, in this he is mistaken.

There are other reservations one can hold about the original position. For instance, other critics have observed that any choice by POP is a kind of gamble, and that what Rawls is really arguing for is to place the safest bet. Specifically, Rawls suggests that a person in the original position should choose principles "for the design of a society in which his enemy is to assign him a place" (p. 152). But the special reasons he invokes here are not convincing, and this is a serious shortcoming, for the mainstay in the argument for his conception of justice is that it would be the clear choice of all PoP.T"

I direct attention to this criticism that others have argued against Rawls, for it

1OAs W.C. Runciman has shown in a more limited but illuminating way, frequently the determination of what the facts are effectively decides the moral question ("Sociological Evi- dence and Political Theory," in his and Lasletts' Philosophy, Politics, and Society, second series; Oxford 1962). llDavid Lyons, in "Rawls Versus Utilitarianism" (The Journal of Philosophy LXIX (18), 535-45), seems to provide an especially damaging critique of Rawls' argument on this point.

70 LEON H. CRAIG

can be treated as an instantiation of the "knowledge problem" discussed above. Given that all living involves risk-taking, is it not true that people vary consider- ably in their attitudes towards risks (i.e., willingness to take risks)? If so, how can the reasoning of POP, which decides in advance to play it safe, preserve each per- son's possibilities? Or, to put it another way, how can such reasoning be repre- sentative? Rawls insists each person in the oP (thus deliberating behind the veil of ignorance) does not know whether he will turn out to be a person who is more or less willing to take risks for appropriate stakes (p. 137). But deciding, as Rawls proposes, in favour of the "maximin solution" would seem to require particular knowledge (i.e., preference for minimum risk), access to which the original position is designed to deny. Or, approaching this problem from a dif- ferent direction, we could protest that Rawls' theory, requiring as it does that in the oP "everyone should reason in the same way" (p. 564), also "does not take seriously the distinction between persons," which is part of Rawls' case against Utilitarianism (p. 27).

The judgment of the ancient founders of political philosophy was that one could not speak intelligently about politics unless and until one had some idea as to what one wanted to achieve politically. Consequently, a much more funda- mental objection lies in the very idea of choosing principles of justice in any kind of original position that does not offer some vision of what is good for man, of which justice (the "political" virtue) would be an integral part. Clearly, a chooser so situated is limited to the kinds of notions of justice he can entertain; namely, to procedural ones. Thus, Rawls is justified in arguing that the major alternative to his contract scheme is Utilitarianism (understood as a procedure for calcula- tion) in some form. Moreover, the individualism built into the idea of individual persons coming together to form society prejudices the deliberations in favour of individualistic conceptions of justice over communal ones. "Perfectionism" (as he calls the classical natural law alternative) is really ruled out of contention by Rawls' initial structuring of the oP. As it is to my ultimate purpose to argue against the intuitive appeal of any such contract situation as a generative source for a notion of justice, I shall have occasion to return to this general objection as well.

IV

I should like now to examine Rawls' account of how POP would reason towards accepting his first principle of justice concerning compatible equal liberties. Chap- ter 4 of his treatise is devoted to this task, and the core of his argument is the discussion of freedom of conscience, which he takes to be paradigmatic of the case for liberty generally.

Rawls does not explicitly attempt to defend liberty as a "final good," that is, as a moral end. One has the impression that he does so regard it (based, for in- stance, on his discussion of Kant, p. 251-7); his program only seeks to employ it as a "primary good," which is part of a set of universal means to all final ends. He is not burdened with demonstrating that liberty is inherently valuable, i.e. for the development of a moral personality, in the fashion of J.S. Mill or T.H. Green. Nor does Rawls attempt to analyse "freedom." He is content to describe "liberty"

71 Contra Contract

as having this form: "this or that person (or persons) is free (or not free) from this or that constraint (or set of constraints) to do (or not to do) so and so"

(p. 202). Thus, in his view, freedom from restraint is all that is immediately rele- vant to his discussion of social justice; the practical potential for using freedom can be treated as a separate problem, the worth of freedom (p. 204).

Rawls describes the basic freedoms he means to be defending as "the liberties of equal citizenship," which include "liberty of conscience and freedom of thought, liberty of the person, and equal political rights" (p. 197). Liberty of person is to be understood as including equality before the law. He intends to treat freedom of conscience as the paradigmatic case for all the freedoms, and as a test of the validity of the specifications attached to the original position. It will "provide an occasion to clarify the meaning of equal liberty and to present further grounds for the first principle" (p. 205). It can be employed as a "fixed point," allowing us to check the results of his conception of justice, since (according to Rawls) the "question of equal liberty of conscience is settled" (p. 206). Rawls had earlier stated his intention to work on the problem of justice from both ends, dialectically correcting his scheme until the original conditions and the results of the principles arrived at therein squared with our intuitive ideas (p. 20; see also his comments about "reflective equilibrium," p. 48-52). Hence, his discussion on this point must do double duty: it is both a pattern and a test. Now, since I would claim that, at the very least, it is far from a "settled question" in any philosophic sense (regardless of what accommodations liberal society has come to on this matter), its utility in the latter regard is immediately suspect. I think a closer examination reveals its failure on the former count as well.

However, before turning to such an examination, I should point out that two issues frequently undistinguished in everyday life are separate questions philo- sophically and may be a source of some confusion about Rawls' discussion of "liberty of conscience." One is a metaphysical question included under the rubric of "free will vs determinism," and concerns whether we are or are not (more or less) free to think what we please, on religious questions or any other. Regarding this issue, Rawls' entire analysis employs a quite thoroughgoing determinism, as this is the consistent basis of his argument against his having to incorporate con- siderations of moral desert into a theory of justice (pp. 7, 15, 73-74, 104, 108, 312).12 The other issue, freedom of religious practice, is a question of political ethics, and as such is Rawls' principal concern here. In any event, neither of these questions is "settled" philosophically speaking (at least not in any meaning of the word we are familiar with), and it seems preposterous to suggest that they are.

I should like to begin with a detailed analysis of Rawls' argument purporting to show that POP would choose a principle which guaranteed freedom of con- science. Given its key role in his analysis, it is all the more curious that the argu- ment is disappointingly scant. It reduces to this: since POP do not know what their respective religious views will be, nor whether they will be with the minority or the majority in their faith, "it seems equal liberty of conscience is the only principle that the persons in the original position can acknowledge" (p. 207). Rawls believes that his examination of the question demonstrates other im-

12We are indebted to a working paper by Professor W.E. Cooper (University of Alberta) for a particularly illuminating discussion of the extent and import of Rawls' determinism.

72 LEON H. CRAIG

portant points. First, it argues for the serial ordering of his two principles, since POP "must choose principles that secure the integrity of their religious and moral freedom"; consequently, the principle which underwrites liberty of conscience must be met prior to and apart from considerations of distributive justice. Sec- ond, it clarifies the role of the state vis-a-vis liberty; it is to regulate religion, not authorize it, for "liberty of conscience is limited, everyone agrees, by the com- mon interest in public order and security" (p. 212). On Rawls' view, his treat- ment is compatible with the absolute character of religious faith (p. 207). Pre- sumably, if God wills justice among men as Rawls conceives it, and if He prefers the worship of those in a free society (those who, in Rawls' words, "highly value the liberty to examine one's beliefs"), then acknowledging the principle of equal liberty does not contravene the absolute claims of religion. We should like im- mediately to point out, however, that these "ifs" are for God to decide; should He be a jealous God, and we be on His side, His Will would be conclusive "argu- ment" against our tolerance. One must say about Rawls' POP, as Max Lerner did about John Stuart Mill, that the idea of freedom was his true religion.13

This point brings out my basic misgiving about Rawls' manner of dealing with this question. His rationale, which here is found to be threadbare at best, pro- ceeds at all only by virtue of the original position being godless, notwithstanding his repeated disclaimers to the contrary. He has built into the structure of that situation a secular priority; if religious claims conflict with the secular claims of good social order, the state decides in favour of the latter. This is not surprising. Rawls' project necessarily commits him to secularism, since a substantive notion of God would make gratuitous a purely profane examination of justice. If God has any business with people, one would expect it to include the authorizing of values. So, I do not fault Rawls for his secular bias; it is in the nature of this enterprise. Rather, I fault him for attempting to make the issue of religious tolerance carry his general argument for liberty, since it surely is one question he decided a priori in the way he cast his project. I think that the problem is actually deeper and broader than that, however; it is a matter of not fully appreciating what is involved in the serious holding of values,14 religious or otherwise. A fuller exploration of this must await the final sections of the paper, but for now I simply wish to call attention to how Rawls' approach ill-equips us for seriously examining the pan- oply of religious questions that have social consequences, such as blasphemy, proselytization, pacificism, oaths, etc. Rawls attempts to skate around the poten- tially tough problems by asserting that religious liberty may be limited out of concern for public order, and such concern "must be based on evidence and ways of reasoning acceptable to all" (p. 213), which precludes revelation, and thus possibly what is essential to living a religious life (i.e., communion with God as

13Brian Barry, in "Liberalism and Want Satisfaction, a Critique of John Rawls" (Political Theory i, (2), 134-53), develops a line of argument against Rawls that is complementary to that given here. Barry observes, "the choice to be made is a choice between different kinds of society, each with advantages and disadvantages, a liberal society and an orthodox society." Rawls has not successfully shown that POP would choose a liberal society. "Everything ... turns on how important one thinks orthodoxy is" p. 148-52. 14The term "value" is used throughout this paper despite my misgivings about it, given that such use implies an acceptance of the peculiarly modern and quite problematic "fact-value" distinction. Still, the term is so thoroughly established in today's philosophical discourse that avoiding it involves considerable clumsiness, especially in discussing a work such as Rawls'.

Contra Contract 73

one of His favoured). In short, one can be sure the liberal notion of religious tolerance is compatible with a serious religious commitment only if one knows that God is a liberal, a notion about which one may well harbour doubts.15

Rawls argues that justice requires a full and equal (albeit regulated) tolerance for all religious views, and that a limited tolerance will not do. He suggests that those who offer toleration only within certain limits they judge compatible with civic virtue, as do Locke and Rousseau, are mistaken in their estimates of the range of incompatible views that may abide together peaceably (p. 215-16). His evidence here is historical, since he finds that even atheists and Catholics need not disturb social harmony. We submit that, given a broader view of history, there is ample evidence to the contrary, and that what Rawls is really citing is the de- cline of all religious values which necessarily attended the ascendance of the secular state.'6 Were religion still a power at large in men's lives, the advice of Locke and Rousseau (not to mention Machiavelli and Hobbes) as to its treat- ment would bear heeding for anyone interested in the primacy of a stable secular political order.

Rawls innocently introduces (in germinal form, and for another purpose) our own explanation for religion's decline when he turns to discussing "toleration of the intolerant" (p. 216-21 ). He maintains the question has several parts. First, he concludes that an intolerant sect has no right to complain if it is not tolerated by others, since a complaint must appeal to shared principles which would be absent in this case. But others may complain whenever "equal liberty is denied without sufficient reason." Thus, the liberty of intolerant persons or groups may be legitimately curtailed, but only when they offer a clear threat to the equal liberty of others, which is basically the same conclusion reached by J.S. Mill.

Rawls further observes that a society ordered in accordance with his two prin- ciples of justice would be inherently so stable that, ordinarily, intolerant sects could not pose such a threat. In fact, Rawls feels that when an intolerant sect enjoys the blessings of a tolerant society over an extended period of time, "it will tend to lose its intolerance and accept liberty of conscience." I agree, but not exactly for the reason that Rawls suggests (that as a matter of moral psychology, a person acquires an allegiance to what he perceives as beneficial). It is rather more likely that this is the natural outcome of the corrosive effect full tolerance has on all values. The substantive value base which the person defends or asserts,

15David Lewis Schaefer, in a very scathing review of Rawls' book ("The 'Sense' and Non-sense of Justice," Political Science Reviewer Im (Fall 1973), 1-41), finds Rawls' unexamined prejudices especially unsettling: "this book is not, as its author claims, a work of political philosophy. Rather, it is an ideological tract ... [which] accords so well with the political dogmas that are currently popular in the academic community ... [that] it is unlikely to receive much severe testing from that quarter" pp. 1-2. Schaefer's general philosophic perspective, as well as certain specific strands of his criticism, parallel our own; he turns them to somewhat different account, however. 16Strangely enough, this is basically the same conclusion J.S. Mill reached in On Liberty: "yet so natural to mankind is intolerance in whatever they really care about, that religious freedom has hardly anywhere been practically realized, except where religious indifference, which dislikes to have its peace disturbed by theological quarrels, has added its weight to the scale." But whereas Mill, unlike Rawls, had read the historical evidence correctly, he seems not to have profited thereby; both fail equally to appreciate the internal rationale of why this is so.

74 LEON H. CRAIG

that which he is intolerant about, is simply worn down. Thus, it is less a case of the intolerant person being converted, than of his being reduced to the same low level of value commitment. Tolerance seems to presuppose a low ambient inten- sity of value-holding, just as intolerance is an outcome of taking values seriously.

Probably neither tolerance nor intolerance is, properly speaking, a value. I am not inclined to defend "intolerance" per se, nor would I know how to go about it were I so moved; but I am prepared to defend the serious commitment to right, and whatever intolerance (to wrong, presumably) this practically necessitates. Toler- ance, on the other hand, does have its defenders who cast it as something inher- ently valuable. I think, however, it is more accurate to consider that what is being defended in such cases is, for the most part, a kind of pragmatic social peace pur- chased at the price of the serious and full pursuit of other values. No witness to the destruction that has plagued the twentieth century can remain insensitive to the value of such a peace. But I suggest (because it seems to be frequently overlooked) that its price is high in terms of a forfeiture to realize other values. And it is a cruel irony, if not evidence of a deeper problem, that modern liberal man has paid the price, but not gained the peace.

V

In an immanent sense, arguing a full case against Rawls would require offering a counter theory. Of course, one need not be limited in choosing the best idea of social justice by what might seem most appealing in the original position described by Rawls, although one may count POP's preference as evidence concerning what is best for us, or even as conclusive evidence (which Rawls means for us to do). It is not my ambition here to offer such a counter theory. But perhaps the circum- stances will allow something more modest. First, this section will be devoted to indicating how the oP has been structured by Rawls so as to eliminate in a priori fashion effective considerations of conceptions of justice that differ fundament- ally from Rawls' own: that is, the limitations imposed on POP are such that they can only give serious attention to conceptions of justice that are individualistic and in the liberal tradition, such as contractarianism and Utilitarianism. And, importantly, I seek to show that such a "ruling out" is illegitimate on Rawls' own grounds. Second, the following section will sketch enough of a counter position to demonstrate that Rawls' theory of justice is not neutral in regard to different visions of what is good for man; specifically, there is an incompatibility between Rawls' first principle and the classical (i.e., Platonic) understanding of human nature.

Perhaps the best place to begin is by examining Rawls' rejection of the "prin- ciple of perfection" (p. 325-32). As he put it, this principle directs society "to arrange institutions and to define the duties and obligations of individuals so as to maximize the achievement of human excellence in art, science, and culture" (p. 325). In order for the principle of perfection to be employable, it "must pro- vide some way of ranking different kinds of achievements and summing their values." But because POP "are assumed to be committed to different conceptions of the good" (though they do not know what these conceptions are specifically),

Contra Contract 75

"they do not have an agreed criterion of perfection that can be used as a principle for choosing" and that would allow them to rank the relative merits of different religious, aesthetic, and moral ideas, so that they can arrive at a consensual choice as to what constitutes the best life. "Thus it seems that the only understanding that persons in the original position can reach is that everyone should have the greatest equal liberty consistent with a similar liberty for others" to advance his ends. Anything less risks "a loss of freedom altogether to advance many of one's spir- itual ends," since such claims might have to be denied in favour of "the higher social goal of maximizing perfection" (p. 327).

Obviously, the people in the original position can not choose a conception of justice that most furthers all men's living the best life if the oP (as constituted by Rawls) denies them the knowledge necessary upon which to base such a choice. But this hardly counts as a reason for our rejecting perfectionism. Instead, it is an instance of the kind of knowledge problem referred to earlier that makes us question the validity of any appeal to the supposed impartiality of the OP. Why are we to assume (or, for that matter, why should POP assume) that persons have different conceptions of the good? One might reason that a judgment of value presupposes a reference to the system of desires of some particular person or class or persons. Things are good for men only given their interests and what they wish to do. All they can agree on as good are the "primary goods" (the means to all final goods), but this "does not establish a standard of excellence" (p. 328).

It can be agreed that experience bears out the notion that people do in fact have different conceptions of the good. But the important questions are: why do they, and what are the real implications of such a fact? What goes into the system of desires, interests, and what one wishes to do? How does each person decide what is best for him, what is the right thing for him to do? Allowing that each of us is not born with a complete vision of the good, but that we do come with this will to do what is best for us which motivates our rational choices (as Rawls explicitly recognizes, among other things men must desire justice in some formal sense), the substance of this vision is filled out in the course of living. If POP "know" just this much, they could hardly be expected to agree unanimously that the best way to find out what is good is by each person working independently. Why, for in- stance, would they not reason that rightness is more likely to be manifested in a Rousseauistic General Will, than in the will of each? Why not make finding good- ness a cooperative affair? Rawls notes that he has not argued "that the criteria of excellence lack a rational basis from the standpoint of every-day life," but only that there is no teleological commitment to perfection acknowledged in the OP, and in any event his conception of justice is neutral with respect to claims of ex- cellence (p. 328). What I fail to understand is why his admitting the rationality of standards of excellence should not qualify ideas of excellence as part of the "knowledge" available to POP, and thus to be appropriately taken into account in generating a conception of justice. I contend that his is not the wiser choice for POP, and that it is far from neutral; rather, in its endorsement of general tolerance, it is actively destructive of substantive ideas of excellence.

If one agrees that rightness of choice has, in some final sense, priority over process of choosing, then the liberal dogma sanctifying each individual's choosing his own good must go by the board. In his conception of justice, Rawls (typical

76 LEON H. CRAIG

here of liberal thought) has avoided grappling with the constant moral problems by simply passing them on undiminished for each person to cope with as best he can.

VI

Were one familiar only with Rawls and the rest of liberal political thought, he would find Plato's examination of justice in The Republic curious, for personal liberty finds no place in the Platonic conception, nor does equality before the law. Justice, for Plato, is not a procedural matter; it is an integral part of goodness. When Rawls chooses Utilitarianism as the primary alternative to his own contract theory, he is operating within the self-imposed parameters of individualistic think- ing. Unfortunately, this choice does not provide as revealing a contrast as would a comparison with the fundamentally different communitarian conception of social justice, such as that held by the ancients (which Rawls would include under the rubric "perfectionism"). As mentioned before, it is not my intention to present in fullness such an alternative. I shall, however, try to sketch part of a position that, while admittedly a superficial and otherwise inadequate adumbration of Platonism, is I hope sympathetic to this classical view of man. Let it be clear, I am not concerned here with demonstrating the correctness of the Platonic theory, but only with showing that this general account of human nature is incompatible with Rawls' first principle of justice. In this regard, its correctness is not essential; it need only be a plausible view of man. Thus, if POP employed a Platonic "social science" in their deliberations, they would not likely endorse Rawls' first principle. Contrary to Rawls' belief that his theory of justice is neutral as regards various conceptions of the good, a Platonist would find that theory prejudicial to the reali- zation of a good society.

Thus, the starting point is the problematic "knowledge" about man. What must be fully appreciated is the primordial sociability of man, that his very humanness is causally dependent upon his being born into an on-going society that meta- morphically transforms him from an animal being into a human being. Far from society being merely a grand arrangement for yielding multiple benefits to the constituent individuals beyond those possible in solitary life, society is essential to the very existence of those individuals as humans. Society is certainly composed of individuals, but its existence is not dependent upon any specific individual; whereas, the existence of every specific individual is dependent upon society. The import of this is, first, to grant the claims of society priority to the claims of any individuals therein.17 Second, it is a recognition that the kind of man one is de- pends fundamentally upon the kind of society into which one is born and lives. Being social means being inextricably woven into a patterned flux of interpersonal relations, that one's image and understanding of self is inseparable from that held

17The "Laws" in Plato's Crito elaborate this argument with forceful eloquence. Obviously, this claim does not exhaust the considerations that may legitimately be brought to bear on questions where the interests of one's society conflict with one's own immediate interests. But the truth referred to either has the implication specified, or it has no implications at all; it certainly does not imply the opposite (i.e., that claims of the individual have priority over those of his society). Liberals, in order to protect their individualism, are obliged to pretend they can see no implications at all.

Contra Contract 77

of one by others. The expectations others have of us exert considerable pressure on us to conform to these desires and demands. Conformity is a part of the human makeup, an important basis of successful social living; the point is to insure the part of us that conforms does so to something good, to an ideal. This ideal is ra- tional, in principle discernible (although not necessarily with ease), and keyed to the essential nature of being human (the ideal is to have that nature fulfilled).

A society should be ordered to realize the highest potential in every person, and this is best done through accommodating the natural capacities of ordinary men. A good society can elicit a high level of virtue from ordinary persons if the citizens expect it of one another. But in order for this "best" behaviour to become habitual good behaviour, the demand must be ubiquitous; that is, there must be a social consensus on what constitutes good character, and this mutual demand pattern must be ever present in the background of all important interpersonal dealings if good character is to be created in the individual citizens. This consensus need not extend to all details of life, but only to those important value questions. Tolerance for individual preferences is appropriate for most aspects of private life, but it is inimical to the requisite consensus on fundamental rightness that must permeate social life if an individual citizen is to experience a consistent and coherent system of demands for virtue. An ordinary person can be a good person if he has a clear model of that in which goodness consists. This model must be present in the history and culture of his people; he must find it exemplified by his leaders; he must learn it in school; and he must feel it expected of him by his contemporaries; generally, by all the people he deals with.

It should be clear from what has been said that the refusal to grant a general tolerance to all views on fundamental value questions does not amount to espous- ing a totally administered society (totalitarianism), nor does it imply an endorse- ment of barbarous inquisitions. The problem of maintaining consensus on values admits of various solutions, and is a practical political concern. Presumably, some censorship of public communication is required, and close attention to the educa- tion of children. But not even this requires legal sanction if general standards of manners and taste are what they ought to be. Nor is it incompatible with indivi- duals holding deviant views on the fundamentals, so long as these views are kept private (thus not disrupting the uniform demand pattern), and affect only a relatively small minority of citizens.

It should also be clear that the problem of what is best remains. How does a good society decide what its members should endorse consensually? This question has exercised "perfectionist" thinkers since ancient times. At least it is to their credit that they felt obliged to grapple with it, however inadequately, rather than to beg it. I would contend that certain theorists have already offered estimable visions of a good life (which includes justice), Plato being the foremost. But in any event, "choosing" the best ethical values for social employment is properly a social enterprise, carried out by people reflecting upon and deliberating about their experience with life in its fullness.

Having sketched this much of an alternative view of these issues, I should like to interject at this point a parenthetical comment on Rawls' position. He too con- tends that justice (and virtue generally) must be compatible with man's moral psychology, that the "is" and the "ought" are closely related if not absolutely

78 LEON H. CRAIG

congruent. Chapter 8 of his treatise is devoted to elaborating such a psychology with the expressed purpose of demonstrating how his conception of justice as fairness does in fact exhibit this very compatibility. The curious thing about his description of how man and society work is its important resemblances to what I have called the classical account; perhaps Rawls' employment of an "Aristotelian principle" reveals the source of this apparent avuncularity (p. 426-33). He pro- poses three psychological laws (p. 490-1) which I shall render for my purposes as one: a person responds with admiration for, and emulation of, other persons who demonstrate concern for his own welfare, and whose behaviour he finds naturally attractive. He contends his laws embody a reciprocity principle ("a tendency to answer in kind") which is present in all stages of moral learning (p. 494, 499). Rawls recognizes the function of moral censure by one's fellows, and of shame in one's self, and of the influence of moral exemplars in motivating one's moral conduct (see p. 444). He further asserts that a person "who lacks a sense of justice lacks certain fundamental attitudes and capacities included under the no- tion of humanity," that he is disfigured (p. 488-9).

But what Rawls fails to examine is how all this can create a vigorous morality in the absence of agreement on fundamental values; certainly Aristotle made no comparable mistake. If a person is confronted with conflicting expectations, de- mands, and exemplars, he will not accept any of the possible choices with any deep commitment, for (as Rawls recognizes) the ordinary person does not rely exclusively, or even primarily, on his own judgment; the corroborating judgments of his associates are important in satisfying his intuition of rightness. If all judg- ments support the same conclusion, each person can feel confident that his com- mitment is not misplaced; but if judgments are different, each treats his own com- mitment as tentative or ambiguous, and so necessarily shallow. Thus, it seems that given Rawls' own account of man's moral psychology, he should agree that "tolerance," since it encourages the proliferation of contradictory values, would not be incorporated into a theory of justice by POP.

It may have been noticed that something important was missing in my descrip- tion of the classical idea of man and society: it presupposes a so-called face-to-face community - a political unit small enough that most members know one another, either first hand or through a single intermediary. Hence, it is not merely a matter of society embodying a consistent ideal of virtue, but it also requires each member to "live with" his reputation. What kind of man he is, then, is generally known throughout the community; he is constantly reminded of how his fellows regard him. This is an important part of what encourages him to measure up to the ideal manifested in the ubiquitous pattern of expectations. Because all (or most) citi- zens agree on standards, when one significantly fails to do his best, he not only experiences the censure of his fellows, he knows it is justified and feels ashamed.

Clearly, modern society is different in this respect. Modern man lives in some- thing called a "mass society," not a face-to-face community. Perhaps herein lies the most generous explanation for the liberal inclination to make values purely a matter of personal conscience; it is an attempt to make morality function in a mass society. The impetus to be virtuous, which care for one's reputation provides, is seriously stunted by the anonymity and fragmentation inherent in mass society. One can escape the regular scrutiny of concerned fellows by moving between un-

Contra Contract 79

connected groups, and by ignoring everyone not personally known. Once this manner of living becomes habitual, efforts go towards preserving and extending it. What is left to elicit the best behaviour in each individual is a reduced orbit of per- sonal acquaintances (generally chosen for the ease with which one gets along with them), and the person's own conscience (a thing that, given the environment in which it is created, is not reliably of vigorous constitution). Consequently, when beyond this already cheerless prospect, one adds the principle of general tolerance, the decline of demanding ideals as an important force in ordinary men's lives is to be anticipated.

One can account for the current incompleteness of this process by observing that the liberal freedoms have not yet been fully exercised by the population at large (due largely to the restraints of lingering traditions which steadily grow more feeble). In this sense, one may say that liberal society continues to function despite its guiding philosophy, rather than by virtue of it. To recall a soliloquy by Santayana:

If liberalism had been a primitive system with no positive institutions behind it, it would have left human genius in the most depressed and forlorn condition. The organized part of life would have been a choice among little servitudes, and the free personal part would have been a blank. Fortunately, liberal ages have been secondary ages, inheriting the monuments, the feelings, and the social hierarchy of previous times, when men had lived in compulsory unison, having only one unquestioned religion, one style of art, one political order, one common spring of laughter and tears ... [Liberalism promotes, rather,] that sweet, scholarly, tenderly moral, critically superior attitude of mind which Matthew Arnold called culture ...

Culture is a triumph of the individual over society. It is his way of profiting intellectually by a world he has not helped to make. Culture requires liberalism for its foundation, and liberalism requires culture for its crown. It is culture that integrates in imagination the activities which liberalism so dangerously disperses in practice. Out of the public disarray of beliefs and efforts it gathers its private collections of curiosities, much as amateurs stock their museums with fragments of ancient works. It possesses a wealth of vicarious experience and historical insight which comforts it for having nothing of its own to contribute to history.18

VII

A summary statement might be useful. I have suggested that Rawls' project is challengeable on at least three different analytical levels. First, one may accept his delineation of an original position as indeed being an impartial (fair) and other- wise appropriate context for deliberation about justice, but still balk at concluding with Rawls that his conception of justice is a clear choice over its primary rivals in this context, some form of Utilitarianism or some other contractarian concep- tion. For the most part, my criticism at this level has been confined to demonstrat- ing certain inadequacies in his defence of the priority and independence of his first principle of justice. Specifically, I claim he has misused the so-called "settled question" of religious tolerance.

A second level of criticism would direct attention to particular features of the original position, with the intention of discrediting it as a fair, reasonable, and/or

18George Santayana, Soliloquies in England and Later Soliloquies (Ann Arbor, Mich. 1967; originally published in 1922), 175-6.

80 LEON H. CRAIG

credible set of specifications limiting proposals about justice. I have argued that two such features, in my opinion each separately decisive, reveal flaws in the OP as Rawls has described it: first, the problem of population size (and related aspects of intergenerational justice) reveal a paradox in the "rationality" of POP; second, Rawls fails to fully appreciate the epistemological difficulties attending general knowledge about human behaviour, and the role of such knowledge in settling moral questions. Any criticism at the first two levels should be of immediate interest to Rawls, and those others (friends and critics) who accept the primary intent of his project: developing a theory of justice consonant with liberal society.

These same persons will no doubt be less moved by criticism at the third level: that is, challenges to the individualism built into Rawls' approach. Even so, especi- ally given Rawls' own theory of moral psychology, I believe that I have introduced some considerations that merit their attention. First, a full appreciation of man's fundamental sociability (operating much as Rawls has described it) renders illegi- timate the generation of moral theory from the starting point of wholly discrete individuals, pursuing personal visions of goodness. Second, it is a markedly im- poverished notion of justice that is confined to procedural or instrumental matters (i.e., Rawls' "primary goods"), and thus not informed by, nor integrated with, a substantive idea of goodness or rightness. Third, general public tolerance for all religious and philosophic values is inimical to the role values ought to fill in struc- turing, directing, and signifying life.

But perhaps it is a mistake to claim that the carnival of values in liberal society erodes serious commitment to each and every value; there does seem to be one value that weathers rather well through it all: affluence. A commitment to material acquisition is apparently still tenable. Historically, this is the only value liberalism has felt much confidence in anyway. In terms of Rawls' discussion, the universal means have become the universal end. To be sure, man still conforms. And in liberal society, it is to the fashions of the day (whether in dress or in thought). So we are confronted with the irony, not to say paradox, of man conforming to what is novel, rather than to what is permanent.

One may suppose that the value cacophony encouraged by liberal democracy is harmless enough for philosophers; they should be able to get on well anywhere. But in our view, a good society is one that does best by the ordinary man; whereas liberal society, despite its material success, is providing an increasingly meaning- less, morally tawdry life. Our most profound objection to Rawls' A Theory of Justice is that it continues to accept liberal society as the given.

81 Contra Contract