Tuesday, 21 February 2012

Rawls on Unjust Laws and Majority Rule

It's been a little while now since I posted last on Rawls. The last posting I did concerned the opening sections of Chapter VI of A Theory of Justice, which concerned some principles for individuals. In this posting I am going to continue to look at this chapter, focusing now on the important remarks Rawls makes that bridge the gap between this earlier discussion and the subsequent one that takes up the rest of the chapter and concerns civil disobedience.

Section 53 of Theory concerns the "duty" to comply with an unjust law and here Rawls is concerned to show the basis of this duty against those who would deny that there is any such. Assuming that there is a just basic structure unjust laws are to be taken as binding, Rawls states, "provided that they do not exceed certain limits of injustice". The first question would concern how we are to understand the constitution of these limits though Rawls also points to questions about the priority of distinct principles as another way of framing the key problem here. If there was strict compliance with the principles of justice the problem that is being addressed here would not arise so the problem of how to understand the alleged "duty" of obeying unjust laws is a problem of partial compliance. There are numerous questions of such compliance that Rawls leaves aside (including the important case of the theory of punishment) but he specifically sets out a view on civil disobedience and conscientious refusal but does so still assuming that the case is one in which the basic structure of society is "nearly" just.

In looking at the specific question of unjust laws Rawls points out that unjust laws are not all of a piece as there are two distinct ways injustice can arise. On the one hand, current arrangements can depart from publicly accepted standards that are themselves just (or tend to be so). On the other hand, the publicly accepted standards may be unreasonable and the unjust laws stem from this. In the first case, which is the one that Rawls is considering, there is possible a reference to the sense of justice that underlies the principles publicly accepted. In the second case, depending on the degree and nature of the unreasonable conception in question, there are various possible types of recourse to be made. 

Given that the situation being defined by Rawls is of the first type then how does the "duty" he is describing arise? Assuming deviations from justice occur, there cannot be given an immediate right to defy the laws of a mostly just society. How though does it occur that there are "unjust" laws in this situation at all? Rawls' initial response to this question is that imperfect procedures are sure to result in matters of justice. Politically perfect procedures are simply not forthcoming. One of the reasons for this concerns the operation of majority rule. Rawls appears to assume that in a situation tending towards the ideal that majority rule would be a given and then points out that such rule contains fallibility within it, not least due to the presence of partial and self-interested views. 

These points appear to refer to general types of facts (what Rawls elsewhere termed the "circumstances" of justice). However there is a prior point at issue which concerns the basis for agreeing to procedures that could produce such outcomes. However, if the problem is one of not accepting that we could be out-voted then surely no acceptable system would prevent this from occurring. Having adopted the principles of justice, there is still no way to prevent conceptions being understood as important by different parties being related to these principles in different ways which is the basis of clashes. 

Rawls does indicate an immediate disquiet with what may initially appear a rather sanguine approach to the problem of unjust laws when he refers to "permanent minorities" and the problem of incorporating reference to how to ensure they are not treated unjustly. But this is balanced by Rawls against a general "duty of civility" that is involved in agreeing to comply with unjust laws provided they remain within "certain bounds". 

Section 54 concerns the status of majority rule given that this notion was introduced in Section 53 as part of the most acceptable situation of justice. Rawls points out, however, that it has a "subordinate place" as a procedural device as it is important only in relation to serving the ends defined by the two principles of justice. So "majority rule" is not assumed by Rawls, any more than by Kant, as a cardinal principle of justice (which is why Kant is a republican rather than a democrat and this point of connection Rawls has with him suggests that Rawls' theory is also not, in a certain sense, a "democratic" one either if "democracy" is taken to necessarily and as a primary principle require "majority rule"). The majority principle is constrained by reference to the previously defined background principles of justice. The principles of liberty in particular are cardinally decisive against a reference to majority rule. 

So if the principle of majority rule is one that is subordinate to the principles of justice and if the principles of justice are required for the basic structure to be taken to be generally just then the reference to majority rule lacks the sacrosant status that the principles of justice themselves have. Also, given that the principle of majority rule is not itself taken to be a primary principle of justice, then action in accord with this principle of majority rule is by no means guaranteed to be itself just. 

Rawls next discusses the question of decision making under the conditions that are closest to ideal. Assuming such ideal conditions debate is had with reference to the standards of the principles of justice. So the basis of an agreeable outcome should not be reference to a notion of balancing interests as no such notion involves a clear reference to the principles of justice. Even assuming that this reference to the principles of justice is given, however, it does not follow that the deliberations of the majority would necessarily produce just laws in every case. When we are behind the veil of ignorance the parties debating have impartiality assured by removal of all contingent interests. 

Rawls next contrasts the ideal process of deliberation involved in the formulation of laws and principles with the working of an ideal market. The ideal market is assumed to produce efficient outcomes for all even though each agent only pursues their own advantage. However, whilst an ideal market would have a perfect process, even an ideal legislature would be procedurally imperfect. This is why there is no obligation for citizens to assume that even if the ideal legislature existed and worked procedurally correctly that therefore a just outcome had been achieved. The oddity of the contrast is that a perfect outcome would emerge from an ideal market even though the individual actors were acting without reference to the ends of the market taken overall whilst an imperfect outcome emerges from an ideal constitution even assuming that the actors all take impartial ends as theirs. This indicates that Rawls rejects any close analogy between economic and political structures.

There is no specific weight that can be given in the ideal legislative process to individual preferences and no assurance can be forthcoming that any given person, whatever the strength of their view, is really impartial in deliberation. Further there are a variety of ways that the principles of justice can be viewed. In thinking about the difference principle, for example, it might be right to weigh here questions about how to safeguard and foster self-respect amongst the least privileged and this might well produce different outcomes than if any reference to this notion as a primary good is not considered relevant. So there are, even assuming ideal good will is applicable to those engaged in constructing and voting on legislation, grounds for reasonable disagreement concerning how the principles of justice relate to the laws given. This is why the sense that there may be unjust laws emergent from the ideal procedure is given. And assuming this case it follows that the mere presence of unjust laws is not itself a basis for a claim to act in such a way that these laws are broken, even by reference to the standards derived from the principles of justice. This is what Rawls means by referring to the "bounds" of injustice. However, it is noteworthy that nothing in these two sections of Theory has, as yet, defined the nature and extent of these bounds.

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