by Michael C. Dorf
In an important essay earlier this week, Prof Lawrence Solum marked the occasion of the one hundredth anniversary of the birth of John Rawls and the impending fiftieth anniversary of Rawls's landmark book A Theory of Justice. Prof Solum focuses on the ongoing influence of Rawls, both through his students and otherwise. I recommend it to readers, who might also be interested in an essay I wrote in memory of Rawls on the occasion of his death.
Both Prof Solum and I include some personal recollections. My essay noted that as a student I was lucky enough to study with Rawls--from whom I took a large lecture class on moral and political philosophy, with a heavy focus on the usual suspects: Locke, Hume, Kant, Bentham, Mill, Marx, and then, as I recall, skipping over nearly a century to get to Rawls himself. Rawls was very much interested in counter-arguments, but he did not specifically consider what was then (in the early-to-mid-1980s) widely regarded as the leading challenge to his approach--Robert Nozick's libertarianism as set forth in Anarchy, State, and Utopia. Nozick was a substantially less rigid and more subtle libertarian than the likes of Ayn Rand, and precisely for that reason, any fair-minded attempt to respond to libertarian objections to Rawls's defense of the liberal welfare state should target Nozick's watchman state.
Rawls and those who followed in his footsteps offered responses to the core argument of Anarchy, State, and Utopia, but it's important to understand that even if one thinks those arguments were not successful, it hardly matters for defeating what passes for libertarianism in public debate. On the ground, the sorts of actors who purport to be inspired by libertarian thought either really are relying on Ayn Rand (think of the now-moderate-seeming-by-comparison-to-Trumpers former House Speaker Paul Ryan) or simply using libertarianism as a veneer for crony capitalism (think of Republican elected officials in Texas). Meanwhile, although a fair number of principled libertarians stood against Trump and Trumpism, it is clear that they are no longer a dominant force on the right. The libertarian critique of Rawls remains theoretically significant but not especially significant as a practical matter.
Let us turn then to two other critiques. Each critique can be understood as objecting to the seeming bloodlessness of A Theory of Justice--its claiming to speak from the viewpoint of nowhere, as it were.
In what we might somewhat pejoratively call the "identity politics" critique of Rawls, the people choosing the arrangements of the basic structure behind the veil of ignorance are not so much individuals with their specific characteristics abstracted away as they are archetypal members of the dominant group--white, male, cisgender heterosexuals like Rawls (and me), who can only guess at or worse, assume, what people with other experiences would choose. As I noted in my eulogy (linked above), Rawls tried to respond to this critique in his book Political Liberalism by conceiving of his project as less about constructing an ideal liberal democratic society than about constructing a society within the historical framework that had evolved in certain Western societies.
That move may have been somewhat effective, but it's not clear that it did the work necessary, given that part of the critique is that a great many people in contemporary "Western" societies reflect other cultures, experiences, etc. Put differently, the concession that Rawls was prescribing rules for governing a particular kind of society still might not get Rawls as far as he needed to go--which was to cover at least our own multi-cultural society.
A somewhat different critique came from communitarians, with Michael Sandel as the leading critic. Sandel argued that Rawls and liberals more broadly abstracted away so much and were left with an idealized freely choosing self who was disconnected from the actual societies in which people live. In this view, the social contract as imagined by Rawls and others is itself problematic. We do not choose our connections, not even in thought experiments. We are instead born and remain inter-connected.
Sandel has gotten some considerable attention lately for his critique of meritocracy, which has a great deal to recommend it. But even if one is not fully persuaded by Sandel's argument, there is reason to think that he and other communitarians point to an important value that Rawlsians under-value. For Rawls and other liberals, the great project is to reconcile liberty and equality. (This was a theme of Ronald Dworkin's work too.) The communitarians point to the further value of solidarity--or to use the somewhat antiquated language of the French Revolution: fraternity.
Put simply, where Rawls would have us decide behind the veil of ignorance that we ought to provide the least fortunate with a decent life because we could be among the least fortunate, adherence to the virtue of solidarity would have the fortunate among us provide for the least fortunate even if we could not see ourselves in their position.
I cannot speak for others, but for myself, I find it difficult to imagine building a broadly appealing left/liberalism that does not appeal to solidarity in at least as much measure as appealing to liberty and equality. And for that reason, much as I admire Rawls, I think his project incomplete.