Tuesday, January 26, 2016

John Rawls, German Émigrés, and the Administrative State: Finding the Connections

[By Anne Kornhauser]
And then there was Rawls. The most obvious payoff to the eclectic approach I took in my book exploring the relationship between liberalism and the modern American state came in a novel reading of the philosopher John Rawls. This reading stemmed from two methodological moves: First, I freed myself from the ideological litmus test of "liberalism" and used instead Sheldon Wolin's notion of a "community of preoccupations" in order to determine whom I would write about. Second, I juxtaposed Rawls and the German émigré intellectuals I had studied. As I did so, I noticed a symbiosis in their thinking about the problems posed by the growing administrative state for liberal democracy, particularly when it came to law.

Saying anything different about Rawls was a challenge in its own right as writing about Rawls has become a virtual industry with bibliographies that run into the hundreds of pages. The sheer volume of the secondary literature was daunting, despite the fact that historians have only recently jumped on the Rawlsian bandwagon. If I was successful in this endeavor, it was because I discovered a conversation across the disciplines--not always, or even usually in the literal sense that my actors spoke directly to one another, but they did read each other's work and, more important, they identified similar concerns about the state and for similar reasons.

Making my task even more difficult, Rawls is not known to have written much about the state, or, for that matter, any political institution. That fact is reflected in earlier drafts of my own work on Rawls and has been pointed out by multiple critics who have condemned Rawls either for having little interest in democracy or for his refusal to acknowledge any real-world applications of his philosophy. But in studying the German émigrés' sympathetic but judgmental views of the new administrative state, I began to see the outlines of that state in Rawls's work up to and including A Theory of Justice (1971). I was also aided in this understanding by Rawls's archives, which had not been available to me when I first began the research that would form the basis of this book. In this particular case, the archives were critical because Rawls was not the kind of thinker who contextualized his work. In fact, his theory of justice exemplifies decontextualized, or idealized, normative philosophy.

The outlines of his theory were sketched in Rawls's work of the 1950s and 1960s, and in his thinking as early as the late 1940s. This periodization was important to me because I believed that World War II and its state provided an important backdrop to Rawls's thinking. His theory of justice, I felt, could be considered to be, among other things, a sympathetic critique of the American administrative state as it arose from the war. Rawls's updated social contract theory posited the conditions necessary for consent in a constitutional democracy and the principles of justice that a free and rational people would agree to as a test of the fairness of their institutions.

What the German émigré intellectuals allowed me to see in Rawls that had not been as visible earlier were concerns specific to the administrative state as well as a struggle in Rawls, similar to their own, about whether legality could effectively constrain some of the more worrying aspects of that state: the threat it posed to the rule of law as a check on arbitrary power; its reliance on discretionary, unaccountable decision making; and the concomitant diminution of legislative authority and democratic participation in government. To this Rawls added a key insight regarding the difficulties of critiquing such a state in the first place, given its lack of transparency and the technocratic justifications state actors often gave for their actions.

I unearthed these aspects of Rawls's thinking--rarely made explicit in his published writings and only occasionally in those that remain unpublished--because if one read between the lines, one could see that Rawls was posing similar questions to those of the German émigrés about the role of law in taming the administrative state. The archives revealed that Rawls had read a number of these German thinkers, including his Harvard colleague Carl Friedrich, who had come earlier to the United States but who was an important interlocutor in the liberal conversation about the American state, the émigré Arnold Brecht of the New School, as well as Gustav Radbruch, a central figure in German jurisprudence. Rawls also read American legal scholars, such as Lon Fuller and Jerome Hall, who were thinking along similar lines as the German émigrés, and who themselves cited these thinkers and addressed the fate of the rule of law ideal in the wake of the fall of Weimar and the rise of the Nazi state.

These men formed a motely grab bag of legal thought. Yet reading them had a profound impact on Rawls, forcing him to grapple with the very meaning of law in the context of the modern state. In A Theory of Justice, Rawls placed law and justice in separate categories, arguing that law was a merely formal system that had no intrinsic relationship to substantive ethical content, or justice. Reading the German thinkers and pondering the role of law in Nazi Germany, Rawls grew more hesitant on this point. The law, Rawls now conceded, might have something to do with justice. If the legal system was too distorted, for example, it would no longer "deserve the name of law" (Debating the American State, 207). He also noted in this context that while a legal system could exist in a totalitarian state, citizens in a democracy would be much less likely to tolerate injustice in the law. Therefore, law could serve, at least in theory, as a brake on arbitrary power and on other threats to constitutional democracy arising from the administrative state.


Patrick S. O'Donnell said...

Ann (if I may), Re: “In A Theory of Justice, Rawls placed law and justice in separate categories, arguing that law was a merely formal system that had no intrinsic relationship to substantive ethical content, or justice.”

I think this statement involves a basic misreading of Rawls of a ToJ. In this first instance, this is clear when we learn the significance of a “pure background theory of justice,” which has everything to do with law. As Samuel Freeman has explained, Rawls uses the infamous “difference principle” (under the second principle of justice) to establish a normative requirement for the “society” (or, let’s be frank, the modern democratic State) with regard to maximizing the share that goes to the least advantaged, arguably “the most significant part” of his theory of justice (applying directly to institutions and indirectly to individuals). Setting aside for our purposes the lexical priority of the principle of “formal equality of opportunity” over the difference principle, the latter informs us that “[l]egal institutions specifying rights of property and contract, and economic institutions that make production, trade, and consumption possible are to be designed from the outset focusing on the prospects of the economically least advantaged.” Here law is far from being a “merely formal system” with no intrinsic relationship to justice, but integrally and necessarily bound up with justice. So while Rawls can indeed and does conceptually distinguish law from justice—like both legal positivists and natural law theorists—such a distinction hardly precludes the Rawlsian belief in an “intrinsic relationship to substantive ethical content, or justice.” We have here, to put it simply and fundamentally, a normative principle that fills out the nature of a “just” legal system and the related institutions basic to modern society and the modern State (e.g., market mechanisms, the system of property, contract, inheritance, taxation, etc.). In Freeman’s words, “It is, you might say, a ‘rule for making the rules’….” And it is this principle that is to guide citizens, regulators and legislators deliberating about and deciding (e.g., by voting) upon the common good. Inasmuch as justice has to do with the “basic structure of society” for Rawls, it is intimately and inextricably bound up with the law: “The _basic institutions_ that are part of the basic structure include, first, the political constitution, and the resulting form of government and the legal system that it supports, including the system of trials and other legal procedures; second, the system of property, whether public or private, that must exist in any society to specify who has exclusive rights to and responsibilities for the use of goods and resources.”

(The rest of this comment must be made in a separate post owing to the limit on characters.)

Patrick S. O'Donnell said...

(second part of previous comment)

To explain how law is also intrinsically to Rawls’s first principle of justice is perhaps a bit complicated, as Rawls assumes the (Kantian) moral ideal of “free and equal persons,” but clearly we’ve known since Kant that “an equal claims to a fully adequate scheme of equal basic rights and liberties” provide for us a principled moral justification for a legal system simpliciter, for the rule of law as such, and historically has become part of what we mean by democratic constitutional law. Again, in the words of Freeman: “Rawls’s account of justice is _liberal_ since it gives _equal_ protection to…basic rights and liberties [i.e., liberty of conscience and freedom of thought; freedom of association; equal political liberties; the rights and liberties that protect the integrity and freedom of the person, and the rights and liberties covered by the rule of law as such].”

Rawls does appreciate the empirical fact that “There is no feasible political process which guarantees that the laws enacted in accordance with it will be just,” hence we speak of “imperfect procedural justice,” which is to make a distinction between (democratic) “legitimacy” and legal authority and (perfect) justice: “Provided duly enacted laws do not exceed certain limits of injustice (by violating certain liberties and basic justice) and meet the legitimacy principle, democratic citizens normally have a duty to obey them even though they may be moderately unjust,” hence the (non-absolute) duty to obey unjust laws. This account does not in any way depend upon severing the intrinsic relation between the Rawlsian conception of justice and the rule of law.

Patrick S. O'Donnell said...

See too this blog post by the late philosopher and Kant aficionado (or 'expert') Gary Banham, who wrote concisely on the intrinsic relation between Rawlsian (formal and otherwise) justice and law in a helpful blog post (Inter Kant) back in 2011: http://kantinternational.blogspot.com/2011/08/rawls-on-rule-of-law-and-priority-of.html

Patrick S. O'Donnell said...

Anne (sorry for the above misspelling of your name),

I've since read some of the relevant material from your book in the Amazon preview so I (hope at least now to) better understand why you say the things you do in the blog post, and thus I would (now) approach my disagreement with your interpretation a bit differently, addressing specific readings and claims made there. Nonetheless, I would still stick to most of what I wrote here, while noting that, as Gerald Gaus reminds us, "at different points Rawls appears to reinterpret his earlier statements, and at times apparently affirms competing interpretations of his views. [It] [i]s not difficult to find in Rawls's work passages that support widely different interpretations." So perhaps that may account, in part, for some of our differences in understanding what I construe to be a "necessary" relationship between justice and (the rule of; the principle of) law in a ToJ.

Anne Kornhauser said...

I appreciate your long and thoughtful response, Patrick. Indeed I think this quote from Gaus explains a lot. I thank you too for the Banham reference, which I had not seen.