Abstract
In A Theory of Justice John Rawls proposes that the two principles of justice should be realized through a four-stage sequence of institutional action that starts with a constitution agreed upon by delegates to a constitutional convention. A largely overlooked aspect of this proposal is that delegates are taken to hold conflicting opinions about justice. Their disagreement is one of the factors that determine their institutional choices. This paper employs Bernard Williams’s theory of the political value of liberty to explain and vindicate the role assigned to disagreement at the constitutional convention. Constitutional norms ought to be sensitive to the fact that the functioning of a political order, even one suitably ordered by the most reasonable conception of justice, inevitably involves loss of a precious liberty; the factoring of disagreement into the constitutional convention can fruitfully be understood as a way of modelling this requirement. This exegetical exercise enriches our understanding of the point of constitutions. At the same time it suggests that Rawls may not be as guilty of the cardinal sin of moralism that Williams famously accused him of.
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Notes
See relatedly (Larmore 2013).
Moore argues that there is a type of disagreement that would survive the restrictions of the veil of ignorance, that is disagreement about the sacrifices in liberty we ought to accept for the sake of maintaining liberty overall (Moore 1979, pp. 253–254). He takes the view that this type of disagreement threatens the integrity of the constitutional convention. It goes beyond the scope of this paper to evaluate this claim.
Williams also claims that my complaint against state policies ought to be ‘socially presentable’ (Williams 2005, p. 120), by which he means that it is consistent with ‘accepting a legitimate political order for the general regulation of the society’ (ibid.). An anarchist who rejects all political order fails this condition. See relatedly (Hall 2017, p. 292 ff.).
Provided, perhaps, that the higher tax rate complies with further moral criteria, e.g. it does not apply retrospectively or the taxpayer has received fair notice.
Larry Sager takes them to be those requirements of political justice that are ‘more or less nonnegotiable’ (Sager 2004, p. 150).
See also (Sleat 2014, p. 325). Contrary to Mason, Sleat argues that what matters for legitimacy is not actual endorsement. Instead, ‘[j]udgements about the legitimacy of a political order, or the use of political power, are assessments of the degree of congruence, or lack of it, between that order and the beliefs, values and normative expectations that its subjects have of political authority’ (Sleat 2014, p. 328). Sleat acknowledges that on this understanding judgements of legitimacy will not convince all those who share the same beliefs, values and normative expectations. Different people will be ‘led to different judgements regarding the legitimacy of the political order, of its right to rule’ (ibid.). In this type of situation we have to make do with insisting ‘that the political order makes some sense or that it can be represented as congruent with a plausible interpretation of the key beliefs, values and principles within that society’ (ibid.).
I am grateful to Veronique Munoz-Darde for urging me to address this objection.
Presumably, this consideration does not apply with the same force to questions of justice. Justice typically has a permanence that interests and their ranking lack in most cases. And although, of course, delegates may have a reason to amend the constitution to make it more effective in light of changing circumstances, this reason competes with the very strong reasons in favour of constitutional ‘obduracy’ (Sager 2006, p. 164). So entrenchment has a better fit with justice.
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Acknowledgements
This article was first presented at a workshop on Bernard Williams and the Law that took place at the London School of Economics in April 2018. I thank participants for their helpful suggestions. I am also grateful to Damian Cueni, Rob Jubb, Konstantinos Papageorgiou and Yannis Tassopoulos for commenting on earlier drafts.
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Kyritsis, D. Williams and Rawls in Philadelphia. Res Publica 27, 203–218 (2021). https://doi.org/10.1007/s11158-020-09453-5
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DOI: https://doi.org/10.1007/s11158-020-09453-5