In the last posting I did on this topic the focus on methodological devices was prominent. Rawls reaches the conclusion, however, that there is a close relationship between the principles of justice and the sense of justice. And from this connection he states some key points, including the argument that justice is "the first moral virtue" as it arises from the concept of morality being related to self-interested persons in similar situations. Effectively, if it is possible at all to transcend the bounds of rational self-interest then this is the concept that we reach when we do so.
From the "conjectural derivation" as Rawls here terms the "original position" we have an assured root of both justice and fairness in reciprocity. Reciprocity is connected to the notion of free peoples relating to each other in a situation where no one possesses moral authority over another and we find ourselves engaged in some kind of mutual endeavour. Interestingly connected to this stress on reciprocity is the sense that just principles are ones that require people to be able to affirm them when they openly face one another. So Rawls builds in a publicity constraint on the principles that can be understood as ones of justice.
This publicity constraint is one that enables communicative relations between people and without it there can only be relations between people based on force. After building in this publicity constraint Rawls distinguishes fairness and justice from each other in order to be able to connect them back together. Fairness, on Rawls' view, applies to practices where there is either a competition between people or a cooperative activity in which they have no compulsion to participate. This is why the notion of fairness applies particularly to games and yet also to trade and bargaining. Justice, by contrast, applies to practices in which there is no choice whether or not one participates. There is, that is, an element of necessity in justice which applies to institutions that are generally pervasive or to practices which, if limited in application, are nonetheless ones that have no optional character for those involved in them.
Judging practices by reference to mutual acknowledgement of principles is to engage in applying the principle of reciprocity to their justification. So if one is engaged in a practice that we can acknowledge as satisfying the principle of reciprocity and so we can accept that its rules are either fair or just then we have no grounds of complaint with regard to it. So, for example, if the rules in question limit our sphere of activity in some important respects, then we have a right to expect that others will acknowledge in their own turn the same kinds of limits. If the practice is understood to be just or fair then there is a basic sense in which we all benefit from participation in it.
When one has thus acknowledged the practice in question as satisfying in this way the principle of reciprocity then it becomes the case that one has a "prima facie" obligation to abide by its rules. This obligation is what Rawls earlier referred to as the duty of fair play. Rawls admits, however, that in terming political obligation the duty of fair play he is extending the use of "fair" here beyond ordinary usage which only relates to acting in accordance with the spirit of a practice. But Rawls regards it as a not "unnatural extension" to incorporate the general obligation to abide by the rules in question as part of the duty of fair play as it requires that expecting the benefits of a practice to accrue to one does mean agreeing to the basis of that practice.
This point involves familiar considerations of "free-riding" that arose already in Rawls' earlier paper on justice as fairness. The interesting point about listing fair play as a prima facie duty is that in so doing Rawls deliberately adopts the language of W.D. Ross' intuitionism (though without referring to Ross). The justification of the general duty of fair play is clear in relation to the earlier mentioned publicity constraint since it meshes with this constraint in a natural way. Rawls further indicates that the recognition of the duty of fair play is not only closely meshed with the publicity constraint but that it is also an essential part of the recognition of another as a person. "To recognize another as a person one must respond to him and act towards him in certain ways; and these ways are intimately connected with the various prima facie duties." In making this point Rawls explicitly attempts to take the notion of prima facie duties away from intuitionist views and incorporate it instead in a basic act of recognition.
This point about recognition is used further in relating fairness to justice in terms of the earlier distinction between voluntary and involuntary engagement of practices. If fairness applies to practices in which one engages voluntarily then it is obvious that no one willingly agrees to play in a game that is stacked against them. So in relating the notion of fair practices to justice we effectively act as if practices that were carried out necessarily had in them the freedom we express in situations of choice.
Having reached this point in the analysis Rawls turns next to a comparison between this notion of justice as reciprocity and the utilitarian view. The utilitarian view is taken to be in clear conflict with the notion of justice Rawls has advanced due to the over-riding concern of utilitarians being with efficiency in which administrators are concerned with rules that have little relation to justice. Utilitarian calculation is concerned with preferences and interests so that it engages in abstraction from the separation of persons.
Rawls presses the case about the difference by considering the case of slavery. Utilitarian calculations concerning it have to begin with the interests of all concerned and, whilst they may well produce from this analysis, a condemnation of slavery, there is a fault at the root of such a conception as it does not relate to the slave-holder and slave in terms of reciprocity. If one has reciprocity at the root then you cannot regard the slave-holder's interests as in way relevant in making out the injustice of the institution that he perpetrates. This does not mean that it could never be treated as provisionally excusable but it could only be related to as such if there was an advance in the reciprocal understanding involved in it on what had previously been established and not at all with regard to interests of a slave-holder.
The principles of justice that Rawls has specified could never select slavery as a bearable system and these principles have special weight in determining the character of reciprocity. Following on the earlier stress on the notion of recognition Rawls subsequently points out that all the elements of justice as reciprocity are involved in Kant's formula of humanity as an end in itself. The general point of the argument, however, and this is importantly different from where Rawls ends up in Political Liberalism, is to show the moral roots of the conception of justice that is being justified.
Showing posts with label fair play. Show all posts
Showing posts with label fair play. Show all posts
Wednesday, 30 March 2011
Thursday, 17 March 2011
Rawls, Fair Play and Legal Obligation
In his 1964 paper entitled "Legal Obligation and the Duty of Fair Play" Rawls investigates the question of the relationship between law and morality. The question is investigated from the standpoint of the claim that the moral obligation to obey the law "is a special case of the prima facie duty of fair play".
In making this claim Rawls rules out the suggestion that legal obligation could be grounded on a specific principle of its own, not least because, he states, no one wishes to argue this. This point is made rather swiftly and seems to indicate that Rawls could conceive of no form of jurisprudence that attempted to find legal obligation to be of independent standing.
The next point that is raised is the sense of "obligation" that is implied in claiming that there is a moral obligation to obey the law and Rawls claims that the sense of obligation in question is one connected to institutional rules but this apparently vacuous claim is grounded on a specific sense of an "institution" as something that is related to what he termed an "association" in the previous paper on the sense of justice. It is characterised, in other words, by "voluntary acts" in which obligations arise from others. This does imply the slightly odd view that legal obligations have been entered into voluntarily by us and indicates a kind of precedence of moral obligation in relation to law, an impression that is furthered by Rawls stating that crimes of violence are wrong "independently of there being a legal system", something surely true but which shows that law requires assent of a kind to moral principles to gain a footing in the first place. (The later debate with Habermas will partly concern this question.)
In looking further at the special questions arising from thinking about the law Rawls fills in details of a legal system that fits the bill of having a clear and, in a wide sense of the term, "voluntary", hold on us. The first point is that such a system has to satisfy the rule of law meaning that under its reign there are clear and public criteria and that "similar cases are treated similarly". The feature of the rule of law is central to the form of law rather than to specific legal contents. But Rawls also supposes that the legal order that claims such "voluntary" consent also belongs to a democratic system in the sense of ensuring equal citizenship, basic freedoms and general equality of the suffrage.
The discussion subsequently moves on to the question of how the moral obligation to obey the law works given that it appears to imply that we have obligations to obey laws we might think are unjust and even that obeying them will not produce good "overall". One of the points Rawls makes in looking at these apparent problems is that voting, as a basis for law-making, has no characteristics in itself that ensures the best decisions (or even good ones) will be made. It simply decides which policy will be put into effect. So constitutions create mechanisms by which conflicting views are brought to a resolution, one which need not at all settle the dispute in question. The invocation of the duty of "fair play" concerns precisely the basis for following the law in such a situation as we have an obligation not towards legislators but rather towards other citizens and it is the other citizens who have a basis for indignation if we do not follow the law. But this does require that the general constitutional procedures are themselves just.
It is to specify the basis for viewing such a constitution as just that Rawls subsequently proceeds and these bases turn out, perhaps unsurprisingly, to include adoption of his principles of equal liberty and the acceptance that inequality is arbitrary unless it can be shown to be to everyone's advantage. Under such conditions even a law that is unjust still mandates an obligation that it be followed. Noticeably, Rawls' conditions here are stricter than those Kant appears to adopt when discussing the problems with any claimed "right" to revolution in the Doctrine of Right. Kant's account is part of a general argument concerning the nature of right but it does not require anything like the second principle Rawls adopts.
Rawls next looks at the problem with viewing laws from the standpoint of net overall good rather than in terms of a general moral obligation to obey the law. The basic point of this discussion is to bring out problems with basing a system of justice on the principle of utility. Rawls states that unjust institutions cannot be identified by the principle of utility and that the obligation to obey the law cannot be overridden by this principle. However, Rawls confesses that to establish this claim would require "a deeper argument based on an analysis of the concept of right" and he does not give such an argument, a sense in which the argument of the essay does not reach the level of Kant's Doctrine of Right. Rather than provide such an account of the concept of right Rawls reverts back to the general point that to attribute to justice an absolute weight is to interpret the concept of right by means of the sense of justice as grounded in an initial position of equality (thus invoking the original position).
The general question of the obligation to obey the law is settled for Rawls by a series of tests including those that would look at the justice of the constitution, the depth of the injustice the law enacted, whether those enacting it wish the injustice to result and whether we can realistically hope to repeal the law. This already looks towards questions concerned with civil disobedience but these questions aren't here taken further.
The legal system generally is looked at in this essay as a system of social cooperation that requires equilibrium between conflicting claims. The essay seems thus to be something of an intermediate stage in Rawls' thinking as we need more detail yet of both the general conception of the social/legal system and of the means by which civil disobedience is to be understood.
In making this claim Rawls rules out the suggestion that legal obligation could be grounded on a specific principle of its own, not least because, he states, no one wishes to argue this. This point is made rather swiftly and seems to indicate that Rawls could conceive of no form of jurisprudence that attempted to find legal obligation to be of independent standing.
The next point that is raised is the sense of "obligation" that is implied in claiming that there is a moral obligation to obey the law and Rawls claims that the sense of obligation in question is one connected to institutional rules but this apparently vacuous claim is grounded on a specific sense of an "institution" as something that is related to what he termed an "association" in the previous paper on the sense of justice. It is characterised, in other words, by "voluntary acts" in which obligations arise from others. This does imply the slightly odd view that legal obligations have been entered into voluntarily by us and indicates a kind of precedence of moral obligation in relation to law, an impression that is furthered by Rawls stating that crimes of violence are wrong "independently of there being a legal system", something surely true but which shows that law requires assent of a kind to moral principles to gain a footing in the first place. (The later debate with Habermas will partly concern this question.)
In looking further at the special questions arising from thinking about the law Rawls fills in details of a legal system that fits the bill of having a clear and, in a wide sense of the term, "voluntary", hold on us. The first point is that such a system has to satisfy the rule of law meaning that under its reign there are clear and public criteria and that "similar cases are treated similarly". The feature of the rule of law is central to the form of law rather than to specific legal contents. But Rawls also supposes that the legal order that claims such "voluntary" consent also belongs to a democratic system in the sense of ensuring equal citizenship, basic freedoms and general equality of the suffrage.
The discussion subsequently moves on to the question of how the moral obligation to obey the law works given that it appears to imply that we have obligations to obey laws we might think are unjust and even that obeying them will not produce good "overall". One of the points Rawls makes in looking at these apparent problems is that voting, as a basis for law-making, has no characteristics in itself that ensures the best decisions (or even good ones) will be made. It simply decides which policy will be put into effect. So constitutions create mechanisms by which conflicting views are brought to a resolution, one which need not at all settle the dispute in question. The invocation of the duty of "fair play" concerns precisely the basis for following the law in such a situation as we have an obligation not towards legislators but rather towards other citizens and it is the other citizens who have a basis for indignation if we do not follow the law. But this does require that the general constitutional procedures are themselves just.
It is to specify the basis for viewing such a constitution as just that Rawls subsequently proceeds and these bases turn out, perhaps unsurprisingly, to include adoption of his principles of equal liberty and the acceptance that inequality is arbitrary unless it can be shown to be to everyone's advantage. Under such conditions even a law that is unjust still mandates an obligation that it be followed. Noticeably, Rawls' conditions here are stricter than those Kant appears to adopt when discussing the problems with any claimed "right" to revolution in the Doctrine of Right. Kant's account is part of a general argument concerning the nature of right but it does not require anything like the second principle Rawls adopts.
Rawls next looks at the problem with viewing laws from the standpoint of net overall good rather than in terms of a general moral obligation to obey the law. The basic point of this discussion is to bring out problems with basing a system of justice on the principle of utility. Rawls states that unjust institutions cannot be identified by the principle of utility and that the obligation to obey the law cannot be overridden by this principle. However, Rawls confesses that to establish this claim would require "a deeper argument based on an analysis of the concept of right" and he does not give such an argument, a sense in which the argument of the essay does not reach the level of Kant's Doctrine of Right. Rather than provide such an account of the concept of right Rawls reverts back to the general point that to attribute to justice an absolute weight is to interpret the concept of right by means of the sense of justice as grounded in an initial position of equality (thus invoking the original position).
The general question of the obligation to obey the law is settled for Rawls by a series of tests including those that would look at the justice of the constitution, the depth of the injustice the law enacted, whether those enacting it wish the injustice to result and whether we can realistically hope to repeal the law. This already looks towards questions concerned with civil disobedience but these questions aren't here taken further.
The legal system generally is looked at in this essay as a system of social cooperation that requires equilibrium between conflicting claims. The essay seems thus to be something of an intermediate stage in Rawls' thinking as we need more detail yet of both the general conception of the social/legal system and of the means by which civil disobedience is to be understood.
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