There are three significant problems with Rawls' _Theory of Justice_. First, the theory fails to take account of the difference between community and society. Second, the theory creates a conflict between private virtue and public virtue. And third, the theory, although it purports to be a secular basis for justice, surreptitiously adopts certain assumptions that have their origin in, and are only tenable in, a religious view of man and society. In conclusion, I argue that Rawls' Theory, although it has the form of a rationalist account, in reality merely abstracts from the prevalent prejudices of our society without ever subjecting them to rational scrutiny. It amounts to an abandonment of rationalism in the investigation of justice.



1. Community and society



Ferdinand Tönnies makes a distinction between a community (Gemeinschaft), in which men and women share a common will and work together toward a shared goal, and society (Gesellschaft) in which each person has an interest distinct from that of others and forms only temporary and expedient alliances with others. A Gemeinschaft is formed by ties of kinship, physical proximity, or friendship. Within it men share material goods and have sufficient sympathy for one another to imagine themselves in the place of others and alter their behavior accordingly. A Gesellschaft is formed by ties of commerce. Within it men trade material goods. Their sympathy for strangers is rarely sufficient to require anything more than to avoid harming them.

Rawlsian liberalism is paradoxical because it demands that men trade material goods with one another as in a Gesellschaft, and yet it also demands that men have sufficient sympathy with one another to imagine themselves in the place of another as in a Gemeinschaft.



In other words, Rawlsian liberalism supposes that a society that is in fact composed of distinct families is somehow obligated to form its conception of justice as if it were one big family. It demands that we form a conception of justice that takes no account of our actual family ties and substitutes the artificial tie of a common humanity.



In a genuinely communist society all men and women would constitute one family, and would feel free to demand of one another anything one might demand of kin. In a society composed of distinct families, however, it is only literal kin, not figurative kin, that share so intimately with one another. A family comports itself toward the stranger with the more aloof sorts of virtue, such as charity and justice. With the stranger, privacy, including private property, is always respected. Only in the most dire of circumstances does one intrude upon the privacy of a stranger.



If common humanity is a sufficient criterion for us to live as one family, then why are we trading with one another? If it is not a sufficient criterion, then why must we treat a stranger as we treat our kin?



2. Private and public virtue



For the communist, both private and public virtue consist in sharing with fellow men. For the libertarian, both private and public virtue consist in respecting privacy. But for the Rawlsian liberal, private virtue consists in respect for privacy, yet this virtue is not practiced by the state, while public virtue consists in sharing, yet this virtue is not demanded of individuals. Whether our conception of justice is libertarian or socialist, we can at least imagine a utopia of virtuous men in which the state would wither away. But there is no conceivable Rawlsian utopia.



The conflict between private virtue and public virtue is made particularly vivid in the case of agents of state. What we find objectionable about the behavior of agents of the Third Reich, for example, is not merely that their conception of public virtue was misguided, but that they were far too willing to compromise standards of private virtue in the name of this misguided conception. We do not necessarily expect an ordinary man to have a highly developed understanding of what constitutes the good for society, but we do expect him to hesitate when he is told that the good of society requires him to behave in ways that are not in accordance with private virtue. Under Rawlsian liberalism, private virtue demands respect for privacy and property rights, and yet public virtue demands that agents of the state disregard private virtue and confiscate property on behalf of the underprivileged. Are such agents not then committing an error analogous to--even if it is not nearly as grave as--that of the agents of the Third Reich?



3. The surreptitious use of religion



Even in supposedly secular political thought like that of Mr. Rawls, the state is often imagined to be acting ex parte deus, in the role of God. The sort of justice which applies to the state is thus imagined to be a divine rather than human sort of justice, under which all men must be treated equally, because all men are the children of God, and the Father must treat all his children equally.



The religious underpinnings of the Theory of Justice become most readily apparent in the doctrine of "equality of fair opportunity," which requires that all men begin from an equal starting point and subsequently be given opportunities to become unequal. In order for there to be an "equal starting point" there must be a starting point. Why is this "starting point" the conception or birth of an individual organism? Why is the individual rather than the family lineage the unit by which "equality of fair opportunity" is to be assessed? Why should the "starting point" be defined as the beginning of a man's life, as opposed to that of some distant ancestor? The ostensibly secular Mr. Rawls is very much under the spell of the "soul superstition," the notion that everything significant about a person begins anew with each generation.



In Rawls' conception of "equality of fair opportunity," opportunity to improve oneself beyond one's fellow men is allowed in all areas except one. No one is allowed to become a better parent. No one is allowed to provide his children a better education than the norm for their level of ability, or to supply them with more capital than the norm.



In a regime of private property, a family that for many generations has been assiduous and thrifty, while at the same time sparing in the production of offspring, will impart to each generation a legacy of both intellectual and physical capital that is not available to scions of irresponsible and profligate families. This is unpleasant for the less fortunate, but we must be careful not to place the blame in the wrong place. Does the blame lie with a regime that grants privacy to families and thus allows them to improve themselves over generations? Or does it lie in the irresponsibility and profligacy of particular ancestors? The underprivileged person is more likely to blame the regime, since this explanation allows him to leave his ancestors free from blame, and thus preserve his love and respect for them. In most cases, blaming ancestors will not accomplish anything anyway. Most are dead. The remainder are usually still poor. None is unable to make amends. To blame the regime is more convenient both because we do not love the regime as we love our family, and because the regime actually has the power to redress our grievances. The fact that this is a more convenient explanation does not mean that it is a better one, however.



Central to Rawls' project is the premise that a man or woman must find his membership in the human species to be more of a defining characteristic of himself than his membership in a particular family or his descent from a particular line of ancestors. This premise may accord with the intuitions of those who do not have particularly distinguished ancestors, but perhaps will not sit so well with those descended from accomplished families. For the democratic Rawls, the fact that the persons of the former sort constitute a majority makes their sentiments, ipso facto, true.



4. Conclusion



Although the form of A Theory of Justice makes it appear as if it were a rationalist account, it in fact constitutes an abandonment of reason. While the substantive recommendations of the theory are correctly deduced from a set of clearly articulated premises, the premises themselves are never subject to rational scrutiny. Rawls' later replies to his critics reveal the criterion by which the premises of his Theory were in fact chosen. In his essay "Justice as Fairness: Political not Metaphysical," (Philosophy and Public Affairs 14 (1985), p. 230) Rawls explains that his intention is to collect and refine the "settled convictions" of our society in order to form a basis for a "shared conception of justice." He leaves aside the question as to whether or not these settled convictions are correct.



Rawls' intent is not to subject prevailing beliefs about justice to a rationalist critique, but rather to devise a system that gives them a rationalist expression. Underlying the project is the prejudice that prevailing opinion must inevitably be correct, and requires merely articulate expression rather than rational scrutiny.