Andrew Robinson - Theory Blog

Monday, November 15, 2004

RAWLS ON EXCLUSION (notes - work in progress)

EXCLUSION IN RAWLS’S THEORY

Rawls’s theory is justice is set up in an implicitly contradictory way. On the one hand, its import is supposed to be universal. It embodies “values” which Rawls assumes to exist in an unqualified way, and it founds a theory which is to apply to all people. This has led to its endorsement as non-oppressive by some commentators. Doppelt, for instance, states that Rawlsian community ‘does not come through the exclusion or oppression of certain groups’ (Is Rawls’s Kantian Liberalism… 840). On the other, it is constructed on the basis of a particular conception of the person (an identifiable core to Rawls’s theory which structures the inclusion and exclusion of people and issues from Rawls’s model). His conception of justice is monological, and tends to construct a state empowered to engage in arrogant acts of intrusion based on its “freestanding” conception. This conception is exclusionary and discriminates between people. Therefore, his theory has oppressive implications. What is foreclosed in (“assumed” or “simplified” out of) ethics returns as administration. When Estlund refers to an ability in Rawls’s theory to have opponents ‘painlessly ruled out as unreasonable’ (Estlund 270), he assesses pain only from the abstracted standpoint of the Rawlsian legislator. The exclusion is “painless” neither for the silenced group nor for the defenders of a Rawlsian system, since their silencing will produce social effects such as rebellion. As Kai Nielsen put it in an early essay, Rawls ‘simply rule[s] out other voices from the start’ (Our Considered Judgments 40). In Garrett’s words, ‘[t]o be outside of [the original position] parties is to be outside of justice’ (A Racist Theory? 126). The desire to construct a stable theory is almost certainly at the root of such exclusionism. Rex Martin attempts to excuse Rawls’s view on the grounds of the alleged need to produce a theory as easily as possible. Since ‘there must be a considerable likeness of individuals in the original position in order for an agreement to be struck about the terms of justice’, diversity must be avoided: ‘the more variety that is introduced… the more difficult it will be to establish as reasonable a preferred theory of justice’. Faced with this position, it is diversity and not the ideal of a homogeneous theory which is sacrificed. ‘A line has to be drawn’ (Rawls and Rights 179). Rawls makes the same point when he expresses the hope that the gain of consensus outweighs the losses due to ignoring morally-relevant aspects of particular situations (orig. TJ 517). The less one presents difference as a defect, the more revealing its exclusion becomes and the more obviously oppressive theories such as Rawls’s come to seem.

People who fall within the group (i.e. human beings) to whom the theory is applied, but outside the group (i.e. “moral persons as free, equal, reasonable, rational, normal and fully cooperating members of society”) for whom it is engineered are left voiceless and are to be subject to an imposed system which has no relevance for them. ‘[I]n their rational deliberations the parties… recognize no standpoint external to their own point of view as rational representatives’ (PL 73). Therefore, as Mark S. Stein explains, the original position parties ‘will choose principles which give no weight whatsoever’ to excluded groups and ‘non-cooperating citizens’ (Rawls on Redistribution… 1004-5), and, as Avner de-Shalit adds, the idea of a social contract ‘disenfranchises those incapable of entering into it’ (The Environment Between Theory and Politics 64). This occurs despite Rawls’s attempts to portray his theory as inclusive. Thus, his theory has little to offer to anyone who is oppressed in liberal societies. (The poet and film-maker Pasolini said that liberalism and its institutions are merely fascism in slow-motion - see Freedom, 8th Oct 2002 p. 7). (Part of the problem is that Rawls assumes the pre-existence of an effective national consensus on “justice” of a kind which does not exist anywhere; and also that he assumes that, when two claims clash, one of them must be just. There is no logical reason why two unconditional claims would necessarily require any ethical ordering, however urgent the supposed need for a “decision”). One can contrast Rawls’s general imposition of his theory with his claim that a theory constructed on the assumption that the parties in the original position were altruists would only apply to altruists (TJ 223). His own theory does not only apply to “everybody” but to the “nobodies” as well. The way in which he cages, reduces or normalises difference shows that his theory depends on an oppressive and repressive logic. This is wrong, not only on my grounds, but also on Rawls’s, because he claims that principles, if right, should be acceptable without manipulation, social subordination or domination (PL xliv). (One could add that the increased social cohesion of the in-group would itself weaken out-groups, so it is not in any way a general good). It is even possible that the mere existence of certain people could be seen as “unjust” and “unfair”, since their existence is not at all justified from the standpoint of the persons in the original position.

Rawls commits himself to oppose “intolerable” demands on individuals, but he does this in such a way as to limit it to the normal. Only demands which would be “intolerable” to the type of person represented in the original position are relevantly intolerable. In the original position, one ‘cannot agree to a principle if there is a real possibility that it has any outcome that one will not be able to accept’ (TJ 159; c.f. TJ 135). ‘For an agreement to be valid, the parties must be able to honor it under all relevant and foreseeable circumstances’, and ‘the concept of a contract… sets limits upon what can be agreed to’. A theory with ‘intolerable’ effects, such as utilitarianism, ‘exceed the capacity of human nature’ and so could not be accepted (TJ 153). The parties ‘cannot enter into agreements that may have consequences they cannot accept. They will avoid those that they can adhere to only with great difficulty’ (TJ 153). The parties ‘must ask themselves whether those they represent can reasonably be expected to honor the principles agreed to in the manner required by the idea of an agreement’ (JAFAR 103). This means they will only accept principles which lead to a social system ‘we can honor whatever our position’ (JAFAR 103). The general effect of this argument is twofold. Firstly, anything which could potentially exceed the “strains of commitment” and be intolerable to the parties is ruled out. Secondly, only those represented in the original position are relevant to deciding what is or is not intolerable. The issue of “strains of commitment” only covers strains between justice and legitimate interests, with other issues confined to ‘nonideal theory’, i.e. issues of social control (PL 17-18). Furthermore, the principles are not to be changed because of their effects (TJ 117).

One could, in fact, say the following: since the people in the original position are self-interested, and since they are only therefore liable to refuse options which are intolerable for them (without taking account of what is or is not intolerable for anyone who is not represented in the original position), Rawls’s theory is in effect one big instance of special pleading by an in-group who happen to be represented.

Rawls introduces an instance of the kind of consideration he has in mind. For apparently the only time, he admits into his theory unconditionals which are not reducible to the statist drive for systematisation. ‘There are some things we cannot give up’ and which are ‘nonnegotiable’, such as ‘religious, philosophical, and moral interests’, so these must be guaranteed unless it is ‘unavoidable’ to do otherwise (JAFAR 104-5; c.f. TJ 475). One should keep in mind that, logically, if something is nonnegotiable, then one cannot agree to alienate it even if this is “unavoidable”. If the parties are unable to reach an agreement, this would mean that the original position cannot provide principles of justice and this means it is not a good way of posing ethical issues (JAFAR 102). Rawls assumes, therefore, that the principles he adopts are tolerable to the parties and would not lead to demands which those they represent are likely to be unable to meet. One should keep in mind that they would have to be able to tolerate a situation where the existence of a state and of “principles of justice” matters above all else, and which therefore applies ideas such as “responsibility for ends”. The parties would have to be prepared to accept that, as long as they have the ability to exercise the “two moral powers”, they have no substantive claims either to voice or to resources. Therefore, one of two conclusions results. Either the original position is substantially representative of people in general, in which case it would be unable to reach a conclusion, or else it is representative only of a specific sub-group of people who conform to a normalised model of the self, in which case its social realisation is bound to be impositional.

In fact, Rawls’s theory tends towards the latter conclusion. At times, he even admits that there are people to whom he cannot recommend his theory. There may be some with ‘aims and wants and… peculiarities of their nature’ which are such that the “thin theory of the good” (the set of conceptions on which Rawls’s theory is based) is insufficient to make justice a good. ‘[T]o these persons one cannot truthfully recommend justice as a virtue’ (TJ 504). To these people, as well as those who reach different “considered convictions” and those to whom Rawls’s empirical and intuitive assumptions seem unconvincing or do not appeal, he has nothing to offer except to tell them to “talk to the hand”. He does not specify who such people would be, except that he specifies that his theory ‘does not engage’ those who have a ‘zeal to embody the whole truth in politics’ (CW 574). People also have to have the so-called “moral powers” (which are a reified expression of Rawls’s own beliefs) to be represented in the original position. ‘Someone who has not developed and cannot exercise the moral powers to the minimum requisite degree cannot be a normal and fully cooperating member of society over a complete life’ (PL 74). There are no effects of differences in basic capabilities within the normal range (JAFAR 171), but this means that differences outside this unspecified range are very much significant. For instance, fair opportunities are only allowed provided one’s ‘capabilities lie within the normal range’ (JAFAR 171). Similarly, the worst-off are to be defined ‘within the normal range’ (CW 258-9). Those who are, in Rawls’s rhetoric, ‘less fortunate’ in their moral endowments have no claim to be considered in the original position (CW 338). Rawls’s entire model is a monologue of one group, and he never affords any recognition to non-“citizens”. If, notes Treanor, Rawls’s theory is written for liberal democracy and its citizens, this implicitly means that it is written against anyone else (The Politics of John Rawls 15). ‘Liberals secure the “freedom” to live in a stable and harmonious society, by the suppression of threats to stability and harmony – not by the free exercise of reason’ (19). Ed Wingenbach adds that Rawls relies ‘on the coercive authority of a gentle but ultimately intolerant (and thus illiberal) manipulation of social inclusion and political exclusion’ (Unjust Context 223), and Roberto Alejandro accuses Rawls of ignoring power-relations and wishing to sedate rebels (Rawls’s Communitarianism 22-3; c.f. Evan Simpson, The Subjects of Justice 490).

Tolerance is also conditional on one’s qualification for and fitness and willingness to accept a place in the liberal social order, as constructed around the reasonable and the noumenal self as its master-signifier(s). Kirstie M. McClure demonstrates that the kind of tolerance embraced by Rawls does not involve simple neutrality by the state towards another realm, but involves a wider discourse whose limits are constructed by the field of tolerance (Difference, Diversity… 363-4). Liberal tolerance contains ‘an excess of meaning’ which points towards ‘a distinctive political logic’ and ‘a political positivity’, not simply neutrality (364). This positivity is a concern for stability: tolerance is conceded as a prudential matter to increase stability, perceived as a good over and above all claims of conscience (370). In such a discourse, zealous claims to truth appear as the ‘threatening outside, the destabilizing other’ in relation to a liberal order of discursive separations constructing a civic order (372). It is in such a discourse that claims to truth are reduced to the status of ‘mere opinions’ – a move which requires also that the state be transmuted into a realm of facts (373, 375). The state can ban anything, but only if it can present a sufficiently factual argument (379-80). It is this regime of power which constructs difference as a realm of diversity quilted by the state. Liberal tolerance emerged because of particular conditions of possibility. ‘If, as I have suggested, this possibility was affected by the epistemological relegation of religious belief to the realm of speculation and the simultaneous affirmation of state jurisdiction over matters of worldly consequence, the presumption of its political innocence is hard to sustain’ (381). In a contemporary context, the boundary between objective and subjective judgement is fluid and contested, and one effect of the gesture Rawls inherits from Locke is to reduce scientific truth-claims to the status of speculation (383-4). ‘Where relations between women and men, Anglos and domestic minorities, and between dominant and marginal sexualities have become politically problematized as questions of identity, community, and alternative practice, any exercise of civil power will necessarily privilege one or another politically invested interpretation of social harm’ (386). Honig makes a similar point regarding psychological conflicts within the self, suggesting that Rawls performs a ‘transformation of intrasubjective dissonances into the more manageable conflict of interest’ (PTDP 156-7).

Rawls’s emphasis on rightist and sadistic excluded groups has led some commentators to see ideas such as overlapping consensus as a reaction to such forces – for instance, to the rise of the religious right in America (Paris, After Rawls 692). Some authors go further. For instance, Rawls’s supporter Stephen de Wijze suggests that political liberalism ‘can only reject those doctrines that endeavour to deny basic rights and liberties to others by using the state’s coercive power to suppress, persecute or destroy them’ (Rawls and Civic Education 89; c.f. Raz, Facing Diversity 29). He therefore claims that political liberalism provides institutional guarantees against domination and that it resists attempts at domination by ‘the powerful, intolerant and unreasonable’ (93). Stephen Macedo goes further still, using emotive arguments to suggest that the disproportionate burdens of political liberalism are justifiable because those who are harmed are intolerant (Lib and Civic Ed 484). Although the cases of excluded groups Rawls discusses are usually instances of sadistic people and various groups of oppressors (for example, he brackets the actual social world to ensure that the weight of prejudice cannot outweigh religious or sexual freedom [TJ 395] or to combat slavery, racism and religious repression [PL 596-7]), the excluded could also include people with unusual psychological reactions or propensities, unusual or special needs or interests, extensive commitments, or unconditional demands in excess of what Rawls offers. They could include people who are quite capable of love and fellowship, people who are (in Rawls’s rhetoric) admired for “virtues” and “excellences”, people who engage in dialogue and even people who could develop a “sense of justice” on terms other than Rawls’s. It could even include “heroes” and “saints” if they do not conform to the logic of “reciprocity”. Because it is constructed in relation to a positive pole, Rawls’s exclusion is not specific but operates as a social driftnet. Opposition is, after all, supposed to be ‘loyal’ (TJ 195). While Rawls’s explicit discussions usually concentrate on groups such as slave-owners, serial killers, cults which practice human sacrifice, racists, sexists, neo-fascists and religious fundamentalists, his exclusion stretches much wider. It covers anyone, and any doctrine, which weakens or disrupts the overall social system. It is important to emphasise this, so as to undermine the impression that Rawls simply excludes oppressors. (Incidentally, the kind of victory Rawls has in mind is fairly superficial: he admits that the legacy of slavery persists in ‘social practices and unavowed attitudes’, but sees it as a case of progress that ‘no one [sic] is willing to defend it’ in public - CW 393. In other words, his victories are on the level of public avowal, not necessarily belief or practice). One should recall how broadly Rawls defines “interference” (see “Freedom” section). For instance, in a situation where protesters are able to block road-building by using non-violent direct action, and police force them off the site by using violence, Rawls would probably accuse the protesters of “interference” and of relying on “threat advantage”, whereas the police would be doing their job. (A surfer would also be “exploiting” others if she/he received a basic income; see sections on Reciprocity and Work). This kind of loaded rhetoric means that the series of equivalences usually represented by the figure of the sadistic serial killer or the religious bigot also includes a great many others who are not in any clear way equivalent. The fact that Rawls’s theory is more intolerant and excludes more doctrines than he admits (or realises) has already been noted by some critics (e.g. Miriam Galston, Rawlsian Dualism, 1844). Grundman and Mantziaris, for instance, note the irony that Rawls and Habermas, who have very similar theories of ostensibly inclusive liberalism, would end up excluding one another from their respective well-ordered societies. If exclusion extends as far as such close ideological neighbours, there is little hope for anyone else (Fundamentalist Intolerance… 597-8). Heidi M. Hurd similarly provides a long list of excluded groups who include close neighbours who are beyond Rawlsian persuasion, such as act utilitarians and consequentialists, libertarians and others (The Levitation of Liberalism 821-2). ‘Once one realises the scope of the audience that Rawls is not addressing, one has to wonder what remains of the justificatory reading of Rawls’s project’ (822). This exclusion is a source of conflict. As William A. Galston puts it, ‘for those who are left out, it is hard to see how liberalism can be experienced as anything other than an assault. Resistance is to be expected, and it is far from clear on what basis it is to be condemned’ (Pluralism and Social Unity 718).

Hence, while Rawls’s discussions of religious and political tolerance emphasise his position with regard to “intolerant” sects (which are themselves oppressive towards other religious groups, so any struggle against them is ambiguous with regard to whether it is oppression or resistance), it would also seem to apply to groups which are simply “disorderly”, i.e. which exceed or fall outside the liberal “system of equal liberties” or which demand or need more than Rawls will give them. Any sect (including atheism) which actually made its members unreliable as members of civil society could be banned on the basis of ‘an appeal to public order as evidenced by common sense’, even though Rawls denies that this is a case for banning any existing sect (TJ 189-90). A “disorderly” group need not be overtly intolerant towards any other group, so long as its unconditional demands disrupt the liberal socio-political order. Indeed, such a group may pursue a campaign for more extensive liberties, or for the same liberties but in a less statist (or non-statist) form. Its main “crime” might, for instance, to “refuse to accept” the “normal necessities of social life” as posited by capitalists and the state. Rawls simply draws no distinction between a group which tries to impose its world-view on others and a group which simply demands sufficient space to pursue its own way of life. (Barry goes a step further, claiming that disorderly groups are necessarily a threat to liberal democracy for the perverse reason that liberal democracies resort to illiberal methods to suppress them – in other words, their ostensible provocation of liberals into repression is taken to render this repression their own rather than liberals’ product. Barry, John Rawls and the Search for Stability, 904). I have in mind peasant rebels, urban and rural insurgents, workers’ councilists, anarchists and direct-action protesters as a series of groups which would be “disorderly” on Rawls’s model, and vulnerable to suppression as “unreasonable”, despite pursuing freedom or specificity, and despite not necessarily having any desire to suppress others or any specifiable “intolerant” demand. Surfers would also be an example of a “disorderly” but not “intolerant” group, as would those whose pursuit of art or science leads them into conflicts with the state (for instance, political graffiti artists and subvertisers). A reader who agrees that “justice” should oppose sadistic activities, slavery and religious intolerance may thereby be tricked into also endorsing the various other exclusions. (There may actually be a psychological displacement occurring, so that Rawls mistakenly perceives the “disorderly” groups as necessarily “intolerant”, perhaps because of his own predisposition to cast ideas in systematising and centralised forms). One may also question whether Rawls’s advocacy of punishment, and the petty-minded hostility to “free riders” which is so central to his model of reciprocity, are in fact forms of sadism and/or intolerance.

Paul Treanor analyses the idea of “intolerance” as a form of displacement, an approach similar to those used by psychoanalytically-inspired authors such as Deleuze, Guattari and Žižek. ‘It is a standard line of liberal propaganda. A typical liberal thinks that the starving poor of Africa should be prevented from looting Bill Gates[‘s] mansion – that would infringe property rights. However, it makes bad propaganda to shout: “Support Bill Gates, let the Africans starve!” So instead they say something like: “Let us join together in condemning all forms of fanatical social action, as exemplified by religious zealotry”. It sounds so much more reasonable… The Inquisition is an easy target, but it distracts people from the political reality: that liberalism is more about bashing the poor, than about bashing the inquisition. If the poor bash back, that is “fanaticism”’ (The Politics of John Rawls 17). By using the intolerant as an exemplary case in an argument which extends to the merely disorderly, Rawls performs a gesture of oppression while portraying it as resistance to the oppressive actions of others.

One should remember that public reason (i.e. “common sense” plus scientific views uncontroversial to “common sense”) is decisive in all public questions. This would seem to include questions of determining whether (for instance) a sect is intolerant, whether a group is disorderly, and so on. Hence, while one can legitimately ban a sect preparing for war, one should not take any bigoted or discriminatory action against a group which is simply an unpopular religious minority (TJ 328). Therefore, a lot rides on whether “common sense” is able to tell the difference between a situation where a religious sect really is preparing for an intolerant war against others, and a case where a xenophobic majority is wound up into fanaticism against a particular religious group and therefore believes it is imminently engaged in all kinds of evil (I have in mind McCarthyism and Islamophobia in 1950s and present-day America respectively). By definition, “common sense”, which guides the intolerant majority, will not be able to distinguish between the two cases. Everything depends on the “spin” which is put on the “facts” in each case. This could lead to exclusions not directly countenanced by Rawls. For instance, Marilyn Friedman suggests that Rawls’s account of reasonableness, when combined with widespread stereotypes that poor people are unduly partisan, could be used to exclude the poor from politics (John Rawls and the Political Coercion… 26). Milton Fisk goes further, suggesting that the “hegemonic” (in Laclau’s sense) gesture of positing a “sense of justice” above conflicting groups requires an overarching goal of social stability which is necessarily partisan (in Daniels ed., 69, 76), amounting to ‘partisanship wrapped in absolutism’ (76). Social conflict may mean that the “universal” sense of justice can only arise as a result of indoctrination. ‘The ability to have a universal sense of justice depends on the determination of the ruling class to maintain its hegemony by ideological pressure. But surely being a moral person should not be dependent on such a determination’ (70).

The bracketing-out of controversy tends to render “unreasonable” anyone who challenges widespread views (as I have already suggested regarding radical feminism). This is a point made by some of Rawls’s critics. For instance, Okin suggests that Rawls’s commitment to bracketing out controversy renders him unable to address gender inequality effectively (PL, Justice and Gender 28). Anthony Simon Laden suggests that, whenever a system is successful in interpellating people into oppressive social roles, an “impartial” theory such as Rawls’s will tend to reproduce inequality (Radical Liberals, Reasonable Feminists 140-2). Victoria Muñoz-Darde goes further, suggesting that Rawls’s commitment to an overlapping consensus would rule out any challenge to gender inequalities on issues (such as liberal parenting and equality in the family) which do not command an overlapping consensus and which fall in the non-public sphere (Rawls and Justice in the Family… 347). This is similar to a point made by Bonnie Honig about Rawls’s refusal to address the “non-public” problem of cultural homogenisation. Despite his leaving aside of the issue, he in fact tends to encourage the oppressive tendency to homogenization, and resultant attacks on the abnormal, through his ‘depoliticization of difference’ (PTDP 130). This critique of depoliticisation would also seem to apply to the oppressive actions of other “non-public” institutions such as corporations. P.F. Lake similarly suggests that this bracketing-out may be ideological. Agreement on an abstract level may be ‘the sheep’s clothing’ which hides problems, defers issues, creates ‘phony alternatives’ or promotes ‘powerful lies’ (Lib. Within the Limits… 629). Most people see politicians as liars. Further, public reason may conceal ‘the difference between being tripped over and being kicked’, and the political domain may as easily ‘breed Eichmanns and Nixons’ as Lincolns (630). ‘Underneath a “consensus” on certain platitudes lies a field of highly contested concrete and less abstract matters over which Rawlsian abstractions can serve to cover’, and Rawls’s fixed points ‘are fixed only at the level of platitude’ (633). On a different note, Avner de-Shalit criticises Rawls’s rejection of particularity as a barrier to the possibility of understanding environmental issues and as a destructive disengagement from particularities which are necessarily relevant to issues such as sustainability (The Environment between Ethics and Political Theory 24-5, 30).

It should be emphasised here that, in practice, liberal systems do not operate principally as an insulation against those who would pursue repressive territorialisation, such as fascists and intolerant religious groups. It operates primarily against those whose demands are too unconditional or of a kind the liberal system cannot meet, or who seek a greater openness of space than liberalism allows. For instance, the police are notoriously more interested in suppressing anti-fascists and minority communities who fight against fascists than they are in suppressing fascists. Other cases include squatters, New Age travellers, anti-capitalist protesters, black nationalists and benefit claimants. One finds cases where a serious social struggle results from (for instance) a plan to build an airport at the expense of demolishing homes, people who worship at Stonehenge suppressed for administrative reasons, a ban on Macedonia’s only Albanian-language university on trivial planning grounds, attacks on children who evade the school system, people deported to their deaths on legal technicalities, and so on. These are all instances of attacks on groups who are not demonstrably intolerant of anyone else. This is in addition to occasions where the state targets the “innocent” along with the “guilty”, a practice explicitly admitted by the police after the Poll Tax demonstration and J18. On the other hand, one often finds intolerant people such as Tom Ridge, Rudolph Giuliani, Jorg Haider and Pim Fortuyn entering government in “liberal” states. One sometimes even finds the secret state working hand-in-hand with very intolerant sects, as in the case of the “strategy of tension” in Italy. The image that liberalism mainly acts against the “intolerant” is so blatantly in contradiction with actual practices of liberal states as to qualify as a whitewash if used to refer to them. One also frequently finds in practice that liberals misrepresent groups such as eco-warriors as intolerant minorities so as to justify repression. In this context, Rawls’s self-presentation is hardly innocent. It is part of a broader liberal misrepresentation. Liberal systems in practice defend themselves by a two-step process: firstly, they present themselves abstractly as beneficial, and secondly, they defend their actual effects as unfortunate necessities to achieve their overall beneficial effects. This is similar to Rawls’s way of arguing. Slavoj Zizek’s claim that liberals use discussions of the far right as a cover for attacks on the left (**** ?Multiculturalism) is certainly plausible in Rawls’s case, and is prefigured in Milton Fisk’s more specific accusation in Rawls’s case (in Daniels ed., 58). Fisk has noticed that the actual role of the state is not usually to prevent individual unjust acts. ‘[T]he state more forcefully displays its coercive mechanism in precautions taken against conflicts arising from membership in antagonistic groups… Armed police and militia are needed, not for directing traffic and putting sandbags in dikes, but to break strikes, generate respect for property, and quell riots’ (61). I would also add that one can easily oppose intolerant groups without pursuing the kind of approach Rawls favours. One may, for instance, appeal directly to a right to self-defence against groups such as fascists who pursue repressive territorialisation. In any case, it is not clear that one can make bigotry go away by simply affording it ‘no weight’. (NOTE: Rawls also hints at such an idea in a passage where he says that tolerant groups have a right to self-preservation against intolerant ones. ‘Justice does not require that men stand idly by while others destroy the basis of their existence’ [TJ 192]. This is, however, phrased in a vague and potentially authoritarian way. It is not clear whether the “right” it affords is consistent, and it seems to extend to any action to preserve one’s way of life). The constant emphasis on intolerant rightist adversaries gives the misleading impression that Rawls is on the political left, when in fact he mainly seems interested in taking the leftist side only in those battles which have already been won (e.g. over slavery, not over racial profiling). The battles one chooses to fight can be as important as the side one takes in determining where one stands, especially when adopts methodological (e.g. reliance on “common sense”) and ethical (e.g. support for “order”) priorities which give one’s work a neophobe bent. (Rawls is, for instance, bound to support ignorant bystanders who vindictively support crackdowns, rather than those who are subject to them). In practice, the “eyes to the right” principle at work in Rawls’s work - the approach of emphasising his critique of right-wing, usually peripheral or obsolete, adversaries - is consistent with his authoritarianism, since it precludes his having to engage with critiques from the left. (He builds on authoritarianism rather than rejecting it). In practice, he seems to want “civic friendship” with various kinds of right-wingers, whereas he rejects many leftist and dissident conceptions as “unreasonable”.

As regards the specific issue of religious tolerance, Andrew R. Murphy has provided an extensive critique of Rawls’s claim to be standing in the footsteps of those who fought for freedom of conscience. This is because of his relationship to unconditionality: ‘underlying Rawls’s liberalism is, at best, a belief-action split that has historically worked against liberty of conscience; at worst, a scheme of repression and self-censorship which renders comprehensive doctrines meaningless’ (Rawls and a Shrinking Liberty of Conscience 250). The belief-action split can be traced back through a number of pro-intolerance authors, and the language of public versus private reason arises in Hobbes (269-71). Indeed, Rawls seems to extend the Hobbesian imperative to cover even beliefs which threaten order (273). As a result of this, Rawls either denies the psychological claims (that belief is not willed and is outside subjective control) which ground most arguments for religious toleration, or he demands something which is psychologically impossible (255). He also gives little room for non-mainstream doctrines to operate in public. They are faced with four choices: change their beliefs, dissimulate, engage in activity to change majority views (e.g. civil disobedience), or use an exceptional clause in Rawls’s argument to claim their comprehensive views will be justified by public reason “in due course”. The first two of these are incompatible with freedom of conscience, the third is neutralised by Rawls’s stress on stability and the fourth arises only exceptionally (249-50). Rawls’s discourse therefore depends on exclusionary attitudes. The expansion of religious tolerance depended rather on the spread of arguments which expanded the field of actions which cannot be given as a legitimate reason to socially exclude religious believers (274). This is exemplified in Gerrard Winstanley’s claim that ‘[s]o long as I must not act according to the freedom of my own spirit and the power within me I am then in bondage, and my eyes are put out’ (cited 271).

Despite his admission of non-universality, Rawls insists that social insiders have a right to impose the principles of justice on everyone. He claims that ‘we do not have to contend that everyone, whatever his capacities and desires, has a sufficient reason… to preserve his sense of justice’ (TJ 505). The reason is that insiders would decide in the original position that they have such a right. They would decide that an interest as defined by the thin theory of the good is not ‘required’ in order to coerce someone into acting justly, since such a decision would lead to ‘general egoism’. Since the sense of justice is ‘a great social asset’ from which ‘all normally benefit’, adherence by others is ‘in the interests of each’. They would therefore decide that ‘it is rational to authorize the measures needed to maintain just institutions’ and would agree to ‘penalties that stabilize a scheme of cooperation’ (TJ 504). The argument about general egoism is problematic, since the comparison should actually be between a version of justice as fairness plus punishment and a prefigurative and non-punitive version of justice as fairness. The crucial point, however, is that the insiders establish their right to coerce others by reference solely to other insiders. Rawls does not attempt ‘to require that stability… depend’ on people in general, since he thinks ‘this would obviously be too demanding’; only ‘those with a certain psychology and system of desires’ are relevant (TJ 498). The insiders get to decide what arrangements are of a kind where ‘all normally benefit’, and to impose these on people who fall outside the “all” who “benefit”. Thus, insiders, get something which is not “too demanding” on them, but the excluded are subject to a system which may well be “too demanding”. According to Rawls, the view of insiders is enough to silence any possible criticism from outsiders. Outsiders may not have a sense of justice, but they ‘cannot deny these contentions’, so that, while just institutions ‘do not fully answer to their nature’ and cause them unhappiness compared to insiders, ‘one can only say: their nature is their misfortune’ (TJ 504). The principles which allow the intolerant to be suppressed, for instance, are principles ‘the intolerant themselves would acknowledge in the original position’ (TJ 193). Supposedly, the desires Rawls forbids are of such a kind that someone who held them would not defend them to another (CW 63). One finds the same argument when Rawls defends human rights. Because accepted by insiders, these are binding on everyone. Insiders simply have a right to determine what everyone must do, because of what they are (LN 80-1). The existence of unreasonable doctrines does not mean Rawls operates with a double standard, he claims. It is a limit of, not a defect in, his theory, and ‘does not diminish the great value and importance of attempting to realize’ Rawls’s ideals (CW 614), a value which is also not affected by the fact that Rawls admits that his theory may cause ‘considerable misfortune and anguish’ as well as ‘spiritual emptiness’ (LN 127). This argument clearly involves a displacement of a political exclusion onto individuals and a naturalisation. The misfortune of outsiders is not their “nature”, but the fact that they are not represented in the original position. It only appears to Rawls as a question of individual “nature” because he naturalises his own theory as the privileged form of cooperation and links it to a specific model of the person. (Otherwise, the excluded could bar any arrangement they find intolerable). This exclusion is perpetuated, not because of the “nature” of the excluded, but by insiders, and it is not a standard of universal justice, but rather a particular system of oppression. If Rawls then wishes to deny that he is treating such people “as a means only” or that he is “unreasonable” to them, he is playing with words. The “great value” of Rawls’s theory is a value only to insiders, not a value without qualification as he seems to assume. As Stephen Mulhall puts it, ‘[t]he existence of a well-ordered liberal society is only a condition for the pursuit of a valuable life in which a liberal understanding of political plays some part; for those from whose comprehensive conception such an understanding is absent, such a society may even appear as an obstacle not only to their own flourishing but also to that of other people’ (Pol Lib and Civic Ed 173). The idea that his opponents would not defend their ideas to others is therefore mistaken, and the idea that his opponents would acknowledge his principles in the original position is beside the point: his opponents are not represented in the original position, because they do not conform to the image of the person one must fit in order to be represented there. One is excluded if one lacks a “sense of justice”; further, whether one lacks it is to be decided by the positions one takes on ‘definite moral problems’ (TJ 445), i.e. by one’s disagreement with liberal views on a case-by-case basis.

Bonnie Honig is right when she accuses Rawls of leaving a trail of remainders as he constructs his political theory: the criminal, the indolent labourer, the eccentric, the ‘irresponsible rogue who does not reason deliberatively’, and even ‘the specter of a horde of criminals’ (PTDP 127). However, he cannot treat excluded groups as remainders of his own theory, because he assumes this theory embodies a perfect fit between institutions and people. Hence, ‘he confidently reassures (but also warns) us that the responsibility for the dissonance is not institutional but personal, not political but psychological’. This assurance is incomplete, however. ‘Each [remainder] signals a rift where Rawls seeks closure’, and testifies to ‘the lack of fit between the self and the Rawlsian juridical order’ (128). Persons, says Rawls, are free and equal, yet not everyone has such a status in his theory; ‘others are oddly irrational, even immoral’ (138).

In fact, what Rawls has to offer outsiders is repression and suffering. As Honig puts it, his ‘impulse is to depoliticize, medicalize, punish, disavow, or suppress – to administer – the remainders that signal the ideal’s impossibility’ (PTDP 136-7). He does not even believe in ‘laying aside’ a rule in cases where the assumptions underlying it are patently untrue or invalid (CW 36). The state is to be the ‘final and coercive arbiter over a given territory’, yet the political process is to be subject to ‘certain generally recognised exemptions’ (TJ 195). The pursuit of the telos of a “well-ordered society” requires that the different be excluded, rather than given exceptions. If people do not find the sense of justice to be part of their good, then ‘penal devices will play a much larger role in the social system’. Such reliance on repression does nothing to nullify the validity of the principles of justice (TJ 505). Rawls therefore cuts off any possibility of dialogue with those he invalidates as “unreasonable” or “irrational”. If a conception can be denounced as ‘irrational’ or ‘crazy’, this is itself enough for Rawls to silence it (TJ 26). Rawls tries to construct an asymmetry by sticking labels onto those who oppose his views. If someone disagrees with certain core assumptions, ‘he is guilty of a moral fallacy. There is disorder in his conception of the ranking of moral principles’ (CW 68). Thus, Rawls misrepresents disagreement as something akin to a malfunction. He permits strategic concessions to the “unreasonable”, but seems to prefer to resort to violence. In particular, the strategic concessions are unlikely to affect the “basic structure” in any substantial way. The division between the inside and the outside is simply asserted, not argued. For instance, the invalidity of political versions of comprehensive doctrines arises from the fact that they do not permit the kind of political regime Rawls supports (CW 579). He provides no basis for preferring this regime to their alternatives. Similarly, he asserts that, if opponents do not appeal to the original position, ‘no argument is possible’ (TJ 190). Only the views of reasonable citizens are significant to problematising Rawls’s conception on his own terms (PL 65-6). There is therefore an impositional backdrop to Rawls’s various arguments, which follow from a set of premises which are posited dogmatically. He also says that ‘the moral quality of public life’ would ‘change’ if unreasonable doctrines became more than a small-minority issue (CW 433), although such an appeal to the “public political culture” does not seem to alter the boundaries between the “reasonable” and the “unreasonable”. In other words, Rawls sets himself up as the sole legislator of the boundary between inside and outside. There is also an asymmetry here: Rawls is not prepared to treat outsiders “reasonably”, yet he demands that they be compelled to be “reasonable” to others. (If Rawls worries about “crime” but is quite happy with punishment, he doesn’t understand the situation, viewing it from a partial standpoint constructed within the social inside).

Bonnie Honig claims that the parties in the original position are ‘underinformed’, because they do not know that they could, or even will, feel outlawed impulses (PTDP 147). This view is contested. Miriam Galston claims that Rawls is inclusive in that people in the original position must take into account the possibility that they might turn out to be criminals (Rawlsian Dualism… 1854). This is, however, inaccurate. The model of the person used to derive the original position parties is constructed so that the possibility of turning out to be a criminal or deviant in a Rawlsian well-ordered society can be discounted. If this possibility was included, the argument against the imposition of a state religion would seem to extend to the imposition of any law which some original position parties might turn out to find it intolerable to obey (since they cannot in good faith consent to something which they might turn out to be unable to deliver). Galston’s position is shared by David A. Hoekema, who defends Rawls’s views on punishment. He claims both that criminals are included in the original position and that this position would endorse punishment, because the institution of punishment would be ‘acceptable even to them’ (The Right to Punish 251) because ‘[t]he absence of a system of punishment violates our rights’ (253). However, this argument depends on self-contradictions and undeclared bias. Firstly, Hoekema assumes that, even with criminals included, the original position parties will decide in favour of punishment, because ‘the harm they are likely to suffer if no such institution exists poses an unacceptable cost’ (252). Non-violent responses to deviance ‘leave individuals open to a very high and unacceptable risk of harm and violation of rights’ (253). ‘In a society without an effective institution of punishment to back up laws, a great many people will be subject to frequent and serious infringement of rights’ (253). Hence, he wants to avoid ‘the highly undesirable outcome of having no system of punishment’ (264). This is something they can only decide if they privilege the position of the victim over that of the criminal (and also the position of the wrongly convicted), something they are forbidden from doing in the original position (as they do not know which they might turn out to be – just as they cannot weigh up the relative enjoyments or numerical positions of majority and minority religious sects in deciding the case of religious toleration). By “weighting” the decision in this way, Hoekema renders the included out-group voiceless, which is functionally equivalent to its being excluded. Secondly, they can only know this on the basis of certain general facts: firstly, that conflict is inevitably frequent (a strong Lacanian ontological claim necessary to ground the claim that one is likely to suffer harm if punishment does not exist and therefore to introduce pseudo-probabilistic reasoning), and secondly, that laws and punishment ‘will have the effect of diminishing harmful conflict and infringement of rights’ (253). The first of these “facts” is unprovable but tends to be falsified by evidence from anthropology, the second is false given evidence from studies of labelling (e.g. Cohen, Lemert) and the psychology of deviance (e.g. Biehl and Biehl). In addition, the invocation of the second “fact” renders the argument tautological: the assertion that punishment reduces infringements of rights is simply a reassertion of the contested conclusion that the absence of such a system “violates our rights”. Fourthly and most crucially, Hoekema’s case depends on a de facto denial of his own claim that coercion is a form of ‘intolerable harm’ (see 266), a claim he also implies by classifying punishment as ‘a particularly severe infringement of the individual’s right to make fundamental choices for himself [sic]’ (254). (In fact, he later goes back on this view, claiming in a clearly dogmatic way that punishment of the guilty as opposed to the innocent is not intolerable because it is compatible with self-determination – 260-1, 263). Original position parties cannot consent in good faith to any outcome which may prove to be intolerable, whatever position they happen to adopt, i.e. even if they ended up as the worst-off person (hence their choice of the difference principle rather than utilitarianism). Rawls says this, and Hoekema cites it (259). However, Hoekema gets around this by positing the universal value of punishment: it is necessary ‘in order to bring about a tolerable life for all’ (254). The “all” is revealing here, because it cannot include those who are punished: they do not, by Hoekema’s admission, have a “tolerable life”. Thus, he implicitly excludes those whom he claims to include. The same implicit exclusion occurs when Hoekema presents a case for punishment as opposed to more widespread and generalised carceral measures such as universal electronic tagging. He states that ‘we want to reduce the incidence of crime only by means which respect the rights of individuals’ (256). However, since the methods used against the punished are arguably as severe as those used against everyone in the generalised model – perhaps more severe than these – the category of “individuals” who must be “respected” at any cost, including that of failing to reduce crime, are a category which implicitly excludes those who are to be punished.

Hoekema’s failure could have been predicted by critical authors such as Bonnie Honig. For Honig, the assumption that justice as fairness can be totally just requires the perception of criminality as an attack from a terrifying and mysterious outside. It must be perceived as extrasystemic because justice as fairness only admits its connection to those who conform to its principles (PTDP 142). This is a necessary perception because Rawls insists on viewing punishment as something which can be completely justified (248). The same applies to other disruptive forces such as “unreasonable envy”. As Honig puts it, forces of disruption and politicisation can only arise in Rawls’s theory as ‘outside agitators’ to be ‘punished, banished, or suppressed’ (PTDP 143). In any case, Rawls’s characterological denouncement of those who are to be punished is clear: whereas in other cases one’s abilities and problems are socialised, in this case one’s nature is one’s own (not society’s) misfortune. It has been noted by several authors that this is inconsistent or at least sits badly with Rawls’s account of distributive justice, which excludes the idea of desert (e.g. Scheffler, Resp., Reactive Attitudes and Lib. … 306; Honig 139). Bonnie Honig, referring back to Rawls’s distributive theory, indicts his endorsement of the locking-away of disruptive people and forces so ‘their nature cannot become our misfortune’ (PTDP 144). The criminal in Rawls’s theory is the denial of moral personality, with the result that her/his “bad character” cannot simply be seen as a contingency or a common liability (139-40). ‘Because Rawlsian punishment is so thoroughly justified by the bad character, because it is so well deserved, those who punish are not sullied, or even touched, by their actions. By justifying punishment so well, Rawls relaxes all doubts and reservations, all ambivalences, all remnants of power and arbitrariness. He makes life neat and easy after the founding... for those whose nature is their good fortune. He does not explain, however, why we should idealise a practice of punishment in which the citizens who punish have no hesitations about the use of power, no ambivalence about inflicting punishment, no remorse about depriving others of their liberty or exacting time from a human life’ (PTDP 145; dots in original). The problem is all the greater since Rawls admits that those who are punished are ‘simply unlucky to be ill fitted to the regime’s needs’ (145), and since greater deviance is to lead to greater punishment rather than social change (146). It is Rawls himself who transmutes social misfits into bad characters (145). A similar position is made clear in Michael Neumann’s reading of Kant’s noumenal self, which of course recurs in Rawls. Neumann cites a passage where Kant makes explicit that the punished ‘cannot possibly have a voice in legislation’, adding that the homo noumenon (one might paraphrase this as the cop inside one’s head) is ‘another person’ to the self subordinated by the law it sets. Hence, ‘the constant duty of the utterly conformist homo noumenon is therefore to take the individualistic, animalistic homo phaenomenon firmly in hand’ (Did Kant Respect Persons? 296).

Edward Garrett goes even further than Honig, suggesting that the reasonable ‘demands the existence of the unreasonable’ in Rawls’s theory (Rawls: A Racist Theory of Justice? 124). ‘Rawls is committed to the production of criminality, to the production of people whose actions or ways of life are in direct conflict with the principles of justice that he proposes’ (125). Criminality is required as an essential part of the maintenance of the liberal state (126). In Rawls, this necessity expresses itself via the partiality of justice itself. If justice is constructed by the universal in exclusion of the partial, and if the universal is defined through the exclusion of the partial (as it is, via the veil of ignorance), the unreasonable is inherent in the reasonable as an element in its construction (131). Furthermore, Rawls’s theory depends on the existence of a certain kind of person, i.e. those who accept punishment. However, this mode of subjectification rests on prior social structures. ‘Only disciplined individuals will be prepared to be punished’ (134). Therefore, the liberal autonomous individual who consents to institutions of punishment is in fact a cover for a violent process of subjectification by disciplinary institutions. In the context of such institutions, criminality becomes central to the construction of norms (136). Garrett also suggests that such complicity with apparatuses of disciplinary control renders Rawls complicit with racism, because such institutions often use forms of targeting which are racist (136-7). This accusation of racism is repeated implicitly by Gayatri Spivak, although her immediate target is Kant (see the qualification above re Neumann). She demonstrates that Kant has constructed “man” in such a way as to exclude aboriginal and “primitive” peoples. He uses ‘a peculiar thinking of what “man” is to put [such a person] out of it’ (CPR 26). Furthermore, ‘his construction of the noumenal subject is generally dependent upon the rejection of the Aboriginal’ (26-7), and his moral teleology authorises a project of transforming the “raw” man into philosophical man (36). Such is also the implication of Rawls’s conception of the person.

Rawls gets into difficulties because he actually wishes to be more inclusive than his principles allow him to be. He cannot force the state to tolerate conscience, because in his view this would justify sadistic practices such as human sacrifice. Rather, he demands that religions submit to the system of equal liberties. However, this would compel him also to believe that pacifists should be punished for conscientious refusal. To avoid this conclusion, he has to construct an exceptional argument, justifying pacifism on the grounds that, on balance, it is beneficial (more useful than harmful) for justice and so should be respected as ‘a natural departure from the correct doctrine’ (TJ 325). He even resorts to the argument that pacifism is so ‘unworldly’ that it is ‘bound to remain a sectarian doctrine’, so that it ‘no more challenges the state’s authority than the celibacy of priests challenges the sanctity of marriage’. Allowing conscientious refusal shows ‘a certain magnanimity’ (TJ 335). Implicitly, therefore, he thinks that pacifism should be suppressed if it becomes a majority doctrine or has disruptive effects on the war machine. He can only uphold his tolerance of pacifism through back-door, contingent claims. Rawls only gets into this problem because of his prior statism, and it is significant that his solution to the problem reaffirms the primacy of the statist standpoint. Otherwise, conscripting pacifists would itself seem to be a form of primary violence, similar to human sacrifice and the other practices Rawls condemns. It should be noted that Rawls’s exception only seems to debar conscripting a certain type of religious pacifist, and not all those who object to a particular war. Even this tolerance requires careful argument for Rawls to endorse it. Having established authoritarian presuppositions, every inclusive gesture Rawls performs must be pushed into his theory against the tide. A theory such as Rawls’s is not necessary for one to oppose practices such as human sacrifice, slavery and racist violence, because these could equally be opposed on the grounds of something akin to my own theory of oppression, or Deleuze and Guattari’s hostility to the construction of striated spaces. Such theories tend, however, to be consistent in their opposition to oppressive institutions, extending objections to cover the violence of the state (and avoiding thorny issues such as how one can distinguish prisons and military conscription from slavery in a qualitative way). This is something Rawls wishes to avoid, hence the problems he gets himself into.

The question of slavery actually produces a contradiction in Rawls’s theory. When justifying his conception of citizens as free, he contrasts his view with slavery, on the grounds that ‘slaves are not recognized as persons at all’ and are ‘socially dead’. Thus, any rights relating to them are derived ‘either from slaveholders or from the general interests of society (which do not include the interests of slaves)’ (JAFAR 24). If Rawls is opposing not only slavery but any system involving social death (homo sacer in Agamben’s and Žižek’s vocabulary), this creates great problems: prisoners, the “mad” and children, to take only three groups, are “socially dead” within Rawls’s own theory. (i.e. they are not recognised as citizens, do not have the rights pertaining to citizens, are not recognised as persons in relation to the conception of the person, and have rights if at all only on the whims of those in authority over them or as a result of interests of society which exclude their own interests; children for instance have rights only derived from the interests of those who are free and equal citizens in their development into this kind of person). Any discourse which has a master-signifier involves social death. Also, it is hard to distinguish the institution of slavery systematically from such practices as “welfare to work”, military conscription, jury conscription, compulsory schooling, prison labour and the Taft-Hartley Act (there is a campaign called “Campaign Against Prison Slavery”).

Even for insiders, there is very little consideration of actual needs, since social relations are to be judged in general, and not by their concrete effects. For Rawls, ‘unless one is prepared to criticise [the social system] from the standpoint of a representative man holding some particular office, one has no complaint against it’. Anything which exceeds this ‘need not be taken into account’ (CW 51-2). Thus, the system Rawls proposes is generally repressive.

Rawls also claims that people in the original position would accept ‘a scheme of penalties’ and ‘impositions’ to offset ‘their irrational inclinations’ and tendency to ‘foolish actions’ (TJ 219). This claim that people “would” desire to be threatened by others reflects a repressive model of the psyche: not only are people ego-dominated, but they hate that part of themselves which exceeds the social system. It also suggests a mechanism of identification with the oppressor. It would be more logical for people in the original position to oppose any “scheme of penalties”, because of the risk to themselves should they “become other”. If people in the original position, conceived as rational egos, know themselves to have extra-rational tendencies, they would feel a need to encompass these tendencies in any social system they set up, on grounds of “good faith”. They would have sufficient awareness that they might “become other”, and a sufficient fear of “returns of the repressed”, that they would not endorse the kind of “scheme of penalties” Rawls demands. They would have to allow for a ‘right to go mad’, and for other unconditional desires, as well as for the possibility of neurosis. Rawls’s model requires, rather, that people either be self-hating or determined to dominate others. In other words, the people in the original position could only make the decision Rawls as them make if they are driven by an authoritarian superego, and not only a rational ego. (Alternatively, Rawls’s conclusion would be logical for rational individuals if one added the assumption that people in the original position know that they will share their social world with others who are not represented in the original position. As self-interested individuals, they might then decide they wish to dominate such others. This would not be barred by reciprocity, because this only operates between the included people).

Crucially, Rawls’s idea of reciprocity means that he does not include a demand for consistency in his theory. Rather, all rights are conditional on acceptance of the master-signifier. In a particularly sinister passage, Rawls claims that one has no right to object to the conduct of others except in accordance with principles one would use in similar circumstances to justify one’s own actions. (This is another reduction to sameness, precluding the demand on others that they must act consistently with their own principles). For Rawls, a ‘complaint is a protest addressed to another in good faith. It claims a violation of a principle that both sides accept’. For instance, an intolerant religious group has ‘no title to complain’ about being suppressed by others, even if this breaches the principle of equal liberty. (Presumably, this exclusion again extends beyond the “intolerant” to include also the “disorderly”, who undermine the “system of equal liberties”). Rawls even goes a step further and says that one only has a right to complain on the grounds of principles one would accept in the original position (TJ 190-1). This reduces the right to complain to a privilege accorded to insiders. It means that Rawls permits his own side to act inconsistently, provided the victims of such inconsistency are social outsiders. It is significant that Rawls feels the necessity to provide such an argument against outsiders’ claims, even though he then reasserts the view that only the defence of liberty justifies suppression (because insiders have a right to complain at principles being breached). It shows the centrality of reduction to sameness in Rawls’s theory, and the voicelessness this entails. (Rawls’s version of impartiality is treating the same as the same). It is also a recipe for rightslessness. Since Rawls renders voice conditional on sameness, he denies any “claims” to outsiders. The “contract” metaphor constructs a zero-point of rightslessness, because outsiders and nonconformists are conceptualised as non-signatories, and therefore as having no right to benefit from the contractual arrangement. This allows the suspension of core principles against outsider and deviant groups. It could also lead to situations where the validity of a statement is made to depend on the standpoint of the claimant, rather than the content of the claim. That this rightslessness is linked to the idea of “reciprocity” becomes clear later, in the context of discussions of civil disobedience: the reason the intolerant are not allowed rights is that the tolerant ‘are likely to resent’ being reminded of a duty of tolerance by those who do not practice it reciprocally. They are ‘bound to feel’ they are being ‘exploited… for unjust ends’ (TJ 340). In other words, reciprocity demands the colonisation of others’ minds as a precondition for listening; resentment trumps consistency.

When he actually admits to supporting social exclusion, Rawls tends to naturalise it so as to negate any implications for his theory. Hence, he argues that ‘[t]he principles of any reasonable political conception must impose restrictions on permissible comprehensive views, and the basic institutions those principles require inevitably encourage some ways of life and discourage others, or even exclude them altogether’ (PL 195). Any political principle ‘may require a large sacrifice for some’, but if ‘the only possible candidates all involved similar risks, the problem of the strains of commitment would have to be waived’ (TJ 154). The exclusion Rawls establishes is justified because the ‘limited space’ it produces is of a kind that arises in all ‘social worlds’ (CW 462). In this way, he simply evades discussion of whether he is justified in supporting exclusion; it is necessary for any theory, so therefore, there is no need to justify it. He also simply asserts that the space he allows for ‘worthwhile’ ways of life is sufficient (JAFAR 118).

Because he does not admit that his theory involves the oppression of some people, he is forced to displace social problems into the sphere of characterology. For instance, instead of taking intransigent demands to be an expression of inalienable needs or unconditional desires, he takes them as evidence of a flawed character. When trying to excuse punishment, he claims that crime ‘is a mark of bad character’ and that the punished ‘display… faults’; this is supposed to make it better than if it were simply a way ‘to put a price on certain forms of conduct’ to engineer outcomes (TJ 276-7). Similarly, he claims that someone who does not wish to develop their moral powers (i.e. to agree with Rawls) shows ‘a lack of self-respect’ and a ‘weakness of character’. He claims that this is something ‘[w]e think’, without specifying the “we” involved (PL 76-7). This analysis is tendentially dehumanising, since it involves reference to an essence of “the person”. Since Rawls justifies atemporal methods such as imprisonment, he presumably assumes that character is unchanging. Assumptions that social phenomena such as “crime” result from personal “character” are archaic and unfounded, and are probably the expression of a mythical account. Social phenomena have social-structural causes, and social problems usually express the fact that some people are silenced and excluded. Matza, for instance, shows that “delinquents” are not substantially ethically different from the general population. It is simply that they are “pushed around” more, and therefore put in a “mood of fatalism” (DD **). One should also keep in mind evidence on “deviance amplification”. There is no evidence that those who are convicted of “crimes” are in any way different from others on the level of “character”, even if this concept can be rendered into an interpretatively useful form.

In spite of his tendency to ignore the excluded in his theory and to use “all reasonable persons” interchangeably with “everyone”, Rawls sees the process of repression of an outside as ongoing and permanent. For instance, ‘unreasonable comprehensive doctrines… always exist’ (PL 39). Their existence is a case for social control. Hence, ‘a society may also contain unreasonable and irrational, and even mad, comprehensive doctrines. In this case the problem is to contain them so that they do not undermine the unity and justice of society’ (PL xviii-xix). In a classic exterminatory formulation, Rawls likens “unreasonable” doctrines to disease and war. ‘That there are doctrines that reject one or more democratic freedoms is itself a permanent fact of life, or seems so. This gives us the practical task of containing them - like war and disease - so that they do not overturn political justice’ (PL 64). In similarly dehumanising language, Rawls endorses the view that leaders of rogue states are ‘beasts’ (LN 100). The possibility of justice, says Rawls, depends on the possibility of isolating those who act unjustly (TJ 339), so minorities ‘cannot significantly alter the moral quality of public life and the basis of social concord’ (PL 148). The existence of ‘unreasonable’, ‘mad’ and ‘aggressive’ conceptions, and by implication, the existence of psychological difference, is ‘an unfortunate condition of human life’ (PL 144). He openly admits to wanting ‘reasonable citizens’ to be ‘dominant and controlling’ over others (CW 573). Hence, there are two separate issues in Rawls: the construction of right by an exclusionary inside, and the imposition of it as a general social order, over those who do not accept the insiders’ dominance. Insiders and outsiders are in a state of permanent war. Sometimes, an overlapping consensus is impossible because it is ‘overwhelmed by unreasonable and even irrational (and sometimes mad) doctrines’ (PL 126). At other times, it is liberalism which overwhelms its enemies. What is unclear, however, is why one side should be seen as ethically superior in this war. Clearly liberalism is just as “intolerant” of the “disorderly” outside as the groups it suppresses. One should also notice the different language used regarding conflict, depending on whether it occurs within or outside Rawls’s favoured consensus. Conflict on the inside is conceived as productive, whereas conflict with outsiders is merely an instance of “threat” and “waste” (see e.g. JAFAR 126). The ends of the included, the rational individuals of the original position, seem to justify the means by which others are suppressed and silenced. The “unreasonable” in Rawls’s theory have “no weight”: they become simply a “means” to the ends of the “reasonable”.

It is crucial to realise that there is an asymmetry in Rawls’s treatment of “unreason”. He does not provide a standard for differentiating whether something is a necessary precondition without which one cannot be a normal and fully cooperating member of society, or whether it is an unreasonable demand which someone makes a condition of her or his being such a member. In practice, the dividing line seems to be between normal and abnormal demands. On the one hand, unconditional and “unreasonable” demands which are “normal” are subject to naturalising discourses in Rawls’s theory, and as such are placed beyond question. (The role of the pursuit of incentives in Rawls’s defence of inequality is a case in point). On the other hand, those which are minoritarian or unusual are invalidated as “unreasonable”. As regards the former, Rawls states that ‘a doctrine’s adapting to conditions such as these is not political compromise, or giving in to brute force or unreason on the world. It’s simply adjusting to the general conditions of any normal and human social world, as any political view must do’ (PL 171). In other words, Rawls believes that political conceptions must submit to any and every characteristic of the “normal”, and that the invalidatory label “unreasonable” must be reserved for the “abnormal”. This means that there are no general standards which guide Rawls’s exclusions; these are guided by the special interests of an in-group (the normal). If the normal are pervasively irrational about some issue, their position is to be treated as an unquestionable “law of nature”. If the abnormal are irrational, they are to be suppressed or normalised, even if their abnormality is itself a “fact of human life”. It should be noted that there is no requirement that this depend on the normal being substantively more rational than the abnormal, or any other such criterion. It is a simple dogmatic privileging of the normal. Under no circumstances are the normal to be subject to disciplinary or psychiatric interventions to make them fit into a better society. Such measures are, however, to be the usual fare for the abnormal. One should also note that Rawls treats the “normal” and the “human” as equivalent, as if the abnormal are somehow outside humanity.

Crucially, the “duty to pursue justice” arises in Rawls’s theory regardless of whether “justice” serves actually-existing people. Indeed, it includes a duty to normalise actually-existing people to become the kind of person “justice” requires. He also assumes his desired system to be vulnerable to disruption only from outside (PL 355). More accurately, he assumes the “unjust” to be not an outside to negotiate with but a failed “inside”: people who refuse to be part of the “reasonable” and who therefore are the sole cause of injustice in the world. In practice, this allows individuals to be scapegoated for social problems. The “unreasonable” demands Rawls permits against the “unreasonable” would be sufficient to prevent the social stability Rawls demands, if the “unreasonable” were to put up the sustained resistance which is their only dignified response to their treatment. (This is the case regardless of whether, in Rawls’s insider-centred approach, they have any “right” to complain or resist. He has, after all, constructed their “rights” with no reference to them). Thus, Rawls’s construction of the “unreasonable” as an excluded group renders them likely to return in the form of “social symptoms”. It may even be the case that the sense of being demeaned or pressured which results from the sense of being constantly subject to formalised “duties” and/or the gaze of others and/or the threat of “enforcement” is itself sufficient to generate disruption of a “well-ordered society”. Rawls never discusses why he presumes ethics must take the self-denying form he assigns to it. Another source of instability would be that the state in Rawls’s account is so strong that it would be prone to authoritarian slippage, and the constraints on it are insufficient to prevent this.

The main means whereby Rawls’s exclusion operates is the legal system. This law is to be based on ‘authoritative decision’ and procedural regularity, and is to be unresponsive to actual circumstances (TJ 208-9). Hence, Rawls gives up easily on persuasion and resorts to administrative and repressive measures. This would lead to a situation similar to that referred to be Robert Reiner as “police property” (****): some groups will be included and therefore largely protected, while others, handed over to the police as “property”, will be subject to violent processes of “ordering”. The treatment of such groups is no longer about justice, but about the ‘politically attainable’ and ‘strategies of enforcement’ (?TJ 203). In other words, Rawls ends up back with the reliance on “threat advantage” he tries to avoid. In some ways, Rawls’s exclusions parallel those of liberal political systems. In particular, a general refusal to listen to excluded people, a responsiveness solely to the claims of “normal” insiders and a tendency to penalise unconditionality of desire are typical of a number of juridical, administrative and disciplinary apparatuses. Rawls’s model is all the more problematic, therefore, since it is complicit to some degree with actual relations of oppression.

At one point, Rawls formulates three anathemas to cover the exclusions he admits to endorsing. The three excluded groups are the unjust, the bad and the evil. Each appears to be a mythical figure, established as such by the addition of “the”. The unjust man seeks unjust domination for legitimate reasons such as wealth and security. The bad man wants arbitrary power for reasons such as self-esteem and self-command. The evil man aspires to unjust rule precisely because it is unjust and violates the terms which would be accepted in the original position. He also wishes to affront others’ self-esteem and self-respect and to display superiority. He has a ‘love of injustice’, ‘delights in the impotence and humiliation of those subject to him’ and ‘relishes being recognized as the author of their humiliation’ (TJ 385-6). The role of these labels is unclear, but it is significant that Rawls only explicitly attacks people who pursue domination and oppression. Since the actual operation of his theory excludes many people who are not bad, evil or unjust by the definitions given here, the purpose of the account seems to be to provide fantasmatic enemies as an alternative to recognising those who are actually excluded. The anathemas exist so one can emptily condemn others and push them outside one’s field of hearing. The mythical labels of unjust, bad and evil are used as a substitute for an empirical analysis of actual causes of social deviance. Deviance is portrayed as arising from flawed individuals, rather than social relations. For instance the phenomenon of violence as inversion does not arise in Rawls’s account. Nor does the issue of how deviants challenge dominant definitions of “justice” and formulate their own. Instead, it is simply assumed that they have rationalistic motives and fall into pre-formed categories. There is a possible contradiction here, since someone would seem to need to be “evil” to support many of the institutions of state power. One would need to gain some positive libidinal feedback from the humiliation and degradation of prisoners to be able to endorse the prison system, for instance.

Rawls does not ask whether particular practices lead to a sense of injustice. He only asks whether people have a right to feel unjustly treated (TJ 73). Thus, his theory is unresponsive to people’s actual reactions, being constructed in a purely abstract way. This is the case even when he tries to introduce a modicum of “flexibility” into ideas such as “primary goods” (e.g. JAFAR 175). What overflows Rawls’s theory is treated, not as its limit, but as something to repress and normalise. Far from benefiting “everyone”, the increased solidity of the inside which Rawls aspires to construct would tend to weaken the position of the excluded. For instance, any “good” which is not reducible to “primary goods” is ignored, and this could lead to cases where the pursuit of the latter is allowed to suppress other conceptions of the good. As RM Hare puts it, ‘[t]he fate of a man who was made miserable because he lacked something which he valued very much, but which was not on Rawls’s list of primary goods, is… not even insured against’ (in Daniels ed., 106). An institution cannot be declared “unjust” because it suppresses or debars any specific desire or “good”, and Rawls does not concede any social space to the “unreasonable” or the “mad”. This is based on the strange idea that the use of primary goods would ‘eliminate… socially divisive and irreconcilable conflicts’ (PL 330), when in fact it would only displace such conflicts. Rawls’s simplifications mostly serve the purpose of allowing the social system to ignore anything it does not understand. However, any demand by the social system which an individual cannot understand or cannot obey is necessarily experienced as a violent intrusion threatening the self, which must be refused, defied, resisted or subverted. Adina Schwartz suggests that, since Rawls’s theory is supposed to apply to everyone, whether or not they desire primary goods, it must depend on those who do not desire such goods being invalidated or else subordinated to others’ preferences (Moral Neutrality and Primary Goods 305-6). Discourses requiring submission are not a recipe for eliminating conflict.

One of the more worrying aspects of Rawls’s theory is his unconditional hostility to all intransigence and unconditionality (such as a repeated defiance of a law or rule), except for the unconditionality of this hostility itself. Rather than seeing unconditional positing as an expression of unconditional needs and desires, he tends to assume it to be a result of personal faults. In practice, this means that “normal” unconditionalities are allowed dominance over everyone else’s. Defiance is taken as a pretext for escalation against the excluded. Other critical theorists have noted the exclusionary implications of Rawls’s theory. For Chantal Mouffe, for instance, ‘those who disagree with [Rawls’s principles] are disqualified on the ground of being either unreasonable or irrational’. However, her main criticism is of Rawls’s failure to admit the arbitrary character of this ‘decision’, rather than that he makes it (R.P. 143). Rawls’s unresponsiveness to actual desires also arises in his debate with Habermas.

The borderline between inside and outside in Rawls’s theory is not always clear. When, for instance, does a legitimate (but specific) claim to reciprocity become a case of “special pleading”? Rawls assumes that a group or person whose conception of the good is frustrated or who are denied the “fair value” of civil liberties is engaged in special pleading if they protest at this. However, one could equally claim that the original position would have to make allowances for the possible existence of the group in question. A lot hinges on whether an observer has sufficient sympathy for the group to feel it deserving of inclusion in what would be considered in the original position. This undermines Rawls’s claim to any kind of objectivity. Rawls in fact allows three particular kinds of special pleading: firstly, by the normal against the abnormal; secondly, by conformists exercising their “moral powers” against others who are “unreasonable”; and thirdly, by agents of the state acting on grounds such as “public order”. In all these cases, a particular group is allowed a pretence of universality. Rawls attaches immense, transcendent value to the preservation of “normal” forms of life, despite never giving any reason for the specific valuation of these.

There is also another kind of exclusion operative in Rawls’s theory. This is the construction of an essential core of political questions and a secondary periphery to be addressed later. Hence, Rawls states that: ‘I also suppose that everyone has physical needs and psychological capacities within the normal range… Besides prematurely introducing difficult questions that may take us beyond the theory of justice, the consideration of these hard cases can distract our moral perception by leading us to think of people distant from us whose fate arouses pity and anxiety. Whereas the first problem of justice concerns the relations among those who in the normal course of things are full and active participants in society’ (CW 259). The implications of this passage are highly exclusionary. Firstly, the “we” who decide ethical theory is defined as “distant” from anyone labelled as abnormal: such people are not directly subjects in determining ethics. Secondly, this group is rendered secondary, not a central part of the question of “justice”. Thirdly, the abnormal become a “distraction” to clear moral thought which can only happen in a purified, normalist state of reflection. (A related exclusion occurs around the binary between the “ideal” core, which is primary, and the “nonideal” periphery, which contains a range of issues of application and “difficult cases”, i.e. everything from animal rights and the environment through ill-health, psychological difference and disability, to deviance, punishment, immigration and “just war”. This is of less fundamental importance in Rawls’s oppressive tendencies, but it is closely related to his treatment of issues of application to actual cases as secondary and his resultant tolerance for statist unresponsiveness and the bulldozer mentality. In both these cases, the core/periphery binary allows Rawls to use excuses of “time” and “space” when he does not consider particular questions. This provides an understandable and contingent excuse for what may be a structurally crucial “elision”. The bracketed issues all seem to be either areas of “common sense” which involve lines of flight from liberal petty-mindedness - for instance, obligations to animals, which cannot be founded in reciprocity - or the disavowed supplement of Rawls’s own theory, e.g. the violence involved in punishment).

One finds other references throughout Rawls’s work to issues of psychological difference and physical disability as nuisance and clutter distracting from the central concerns of the people who really matter. ‘Our aim is to avoid difficulties, to simplify when simplification is possible, and to keep in touch with common sense’, to obtain a ‘clear and uncluttered’ view (JAFAR 176). Immigration is also a threat to an ‘uncluttered’ view (PL 136). For purposes of simplicity, Rawls’s theory is not to take account of everyone (orig. TJ 98). Real problems are clutter, because only the problems the social system sets itself are authentic and essential. Rawls explicitly admits that the centrality of relations between the normal is solely a result of their being the focus of the tradition of political thought, i.e. of discussion among the normal (see PL 21-2). He also thinks theory must focus on common cases ‘likely to arise in ordinary life’ (CW 5), i.e., presumably, in the life of normal people. The question of whether (for instance) a system of responsibilities can actually be met by everyone is clearly of great human significance, even though the tolerability of the system for normal subjects is not in question. Rawls’s priorities are constructed from a narrowly normalist standpoint. As Garrett explains, the definition of psychological difference and physical disability as abnormality actually harms the interests of the people so labelled. Since such people’s problems arise ‘in large part [as] a function of the relationship between the person and their social environment’, this is an important gesture of exclusion, one which Rawls does not even attempt to justify. Furthermore, as Garrett adds, abnormality ‘exists in a state of mutual construction with the normal’ (A Racist Theory? 129), and so cannot simply be swept under the carpet as a secondary issue. Such groups are already present in the definition of the “core” issues, but as something absent and repressed. One could also add that Rawls’s assumption that the best-off and worst-off groups could never change places (JAFAR 69-71) is probably false as regards different psychological groups. It is certainly the case that a particular kind of person is “better-off” due to slave morality, and it appears that other forms of ethics would leave this group “worse-off”. Such issues could also arise if the social system were constructed around a different ideal of the person or different norms of what psychological and physical capacities usually involve.

In one passage, Rawls specifies three main groups he excludes from his theory: the young, people without ‘the requisite intellectual capacity’, and those living beyond ‘normal social circumstances’. Those who have a sense of justice ‘expect a similar desire on the part of others (TJ 41), so there is little room left for difference. Furthermore, categories such as the “reasonable” construct a constant slippage between permissible differences and exclusion-justifying threats. Wingenbach goes as far as to say that Rawls pathologises dissent as madness (Unjust Context 222, 225), a claim which, while an exaggeration, certainly draws out a potential in Rawls’s theory. If those who agree with Rawls do so as an inevitable consequence of the free exercise of reason, psychopathological labels are never far from those who dissent.

Rawls sometimes hints at the inclusion of groups who do not fall under “justice” through other principles. However, this is not much of a concession, since he also affirms that justice is primary over other concerns. Furthermore, he suggests that the concerns which are not subsumed under justice are simply to be left to pure majoritarianism (PL 244-6). The strong displeasure of minorities is never a case against a law (TJ 317). In another context (discussing art and science), Rawls suggests that, while values beyond justice can exist ‘beyond question’, such issues as are not matters of justice must be kept ‘within limits’ (TJ 288-9). In other words, such issues are simply to be referred back to the “calculus of social interests”, and are not to include any protected matters.

In one passage, Rawls claims that liberalism can handle the (unspecified) problems raised by the women’s movement, and also claims that the plurality of permissible forms of public reason are such as to allow new groups and interests to be represented within his theory (CW 583). However, this is untrue, because the concept of the “reasonable” is defined prior to the groups which may articulate claims within it. Of course, new groups may happen to fall within the “reasonable” and therefore be included, but there is no way for an “unreasonable” group to gain access, and Rawls’s concept of “public reason” is nowhere formulated so as to allow its boundaries to be modified. The passage just cited is the only occasion where he assumes this flexibility; elsewhere, the whole purpose of having public reason is to provide a certain core on which all citizens can agree.

Rawls assumes his model of self-respect and self-worth to be universal, hence the possibility of seeing things from others’ standpoints. This means in practice that Rawls denies the existence, or the ethical significance, of any group separated from his own standpoint by radical difference. Groups such as children, indigenous peoples, and the psychologically different arise in Rawls’s theory only as potential liberal subjects, and his main imperative is to normalise such people. Rawls claims to be taking a standpoint against “social death”, a situation where a particular group (such as slaves) are not recognised as persons (CW 407). However, his own account in effect renders a whole string of groups “socially dead”, since their present subjectivity is entirely unrecognised. They do not even have the substitute autonomy-in-alterity of being recognised in the original position. They are recognised only as potential conformists, and therefore, their actual self is not recognised at all; it is purged from political ideals and therefore from the criteria which fix ethical principles. This is a form of “social death”.

The issue of “clutter” tends to arise in particular in relation to issues of disability and illness. ‘Since we wish to start from the idea of society as a fair system of cooperation, we assume that persons as citizens have all the capacities that enable them to be normal and fully cooperating members of society. This does not imply that no-one ever suffers from illness of accident; such misfortunes are to be expected in the normal course of human life; and provision for these contingencies must be made. But for our purposes here I leave aside permanent physical disabilities or mental disorders so severe as to prevent persons from being normal and fully cooperating members of society in the usual sense’. Rawls leaves such people aside so as to ‘achieve a clear and uncluttered view’ of what for him is the ‘fundamental question of political justice’, and he does this by ‘idealizing and simplifying’ (CW 398). Thus, he assumes in formulating his principles ‘that everyone has physical needs and psychological capacities within the normal range, so that the questions of health care and mental capacity do not arise’ (TJ 84). He does not seem to realise that he is thereby rendering certain groups secondary in society, and assigning the needs and concerns of these groups the status of an afterthought.

For Rawls, the issues of physical disability, ill-health and psychological incapacity (which he tends to link together) are a distraction because they arouse anxiety and pity. Relations between normal members of society are the ‘first problem of justice’, and other issues take ‘us beyond the theory of justice’ (TJ 84). Hence, ‘political justice does not cover everything, nor should we expect it to’ (PL 21). Sometimes, he suggests that such issues will eventually have to be raised, via a ‘back-and-forth procedure’ between abstract theory and specific applications (PL 20). He even concedes that, if it cannot deal with ‘hard cases’ such as special medical needs, ‘the idea of primary goods may have to be abandoned’ and something broader (such as Sen’s idea of an index of capacities) adopted (CW 368-9). However, he says that such an exterior relation between theory and applications is ‘to be expected’, and so is prepared to put aside such issues when formulating his theory (PL 20). When discussing such issues, Rawls sometimes suggests that “justice” does not apply in such cases (PL 272), clearly a misrepresentation of his broader theory. (Justice is primary, and so must always apply). At one point, he suggests that, while issues excluded form the principles of justice ‘cannot be ignored’, they can be adequately covered by associations within the regulations provided by the principles of justice (CW 348-9). Justice is therefore to be supplemented by unspecified ‘other virtues’ (PL 21). It is hard to see how this can solve the problem, since Rawls has already established the primacy of justice over other virtues. Although ‘care’ for people with medical problems and low intelligence ‘is a pressing practical problem’, it is not an issue of justice. Further, Rawls assumes that, while a theory which works for the normal case may then be extended later, a case which fails for the normal case fails full stop (CW 332-3). The idea that one should return to issues of special needs ‘later’, as an afterthought, recurs throughout Rawls’s work (e.g. PL 272), although he never actually returns to the issue at all. He suggests that it is ‘obvious, and accepted by common sense’ that duties extend to ‘all human beings, however, severely handicapped’, although he never articulates such duties into his theory, and he leaves open the question of ‘the weight of these duties’ relative to others (JAFAR 176). However, this does not prevent his advocating a “genetic policy” (TJ ****) which could lead to the removal of some kinds of difference for the supposed general good.

Rawls admits that there is even a need to bend his conception of the citizen a little to incorporate issues such as temporary illness and accident. Several points should be made about the form this bending takes. Firstly, the grounds for providing for those who suffer an accident or are temporarily ill are grounds of normalisation: their claim results from the fact that such events interfere with their capacity to be a normal member of society. Secondly, the case does not extend to guaranteeing people’s income while ill, and, while it means that a legislature can provide funding for healthcare without acting justly, it does not mean that it must do so. Provision is to be “balanced” with such supposedly crucial concerns as financing the military-industrial complex and ensuring that efficient capital accumulation occurs (JAFAR 173-4). Even here, therefore, Rawls’s first concern is not for the wellbeing of the ill, but for the normal functioning of the social system. Fehige notes that a Rawlsian case for medical provision would seem to include anyone who would be unable to cultivate their moral powers after recovering (Justice Beyond Desires? 266). Rawls also at one point advocates that the state should try to save money by withholding life-prolonging treatment (‘expensive terminal medical care’) from the elderly (CW 581), or more accurately, from the elderly poor (since he does not prohibit private health care). (The other “sensible” ideas he suggests in this passage are also directed against the poor, i.e. raising the retirement age and cutting benefits). Presumably this is because they are considered to be valueless, because they cannot be returned to the status of “normal and fully cooperating members of society”.

While Rawls clearly does not think carefully about the social position of people with physical disabilities, and while the language he uses is awash with quasi-prejudicial terminology (especially the implication that it is people with disabilities, rather than society, who are at the root of inequalities affecting such people), it is apparent that he has no express desire to dominate or silence this group. It is less apparent that he has the same openness, even potentially, to other groups excluded by his theory. Rather, he views difference in terms of ‘defects’ which prevent people from conforming to his model of the person. ‘Society must somehow make good these defects’, and this is to be done by authority-figures using rewards and punishments based on social learning theory. Rawls wishes to combine this with an assumption that people are naturally conformist (TJ 401, 404).

Despite his apparent openness, Rawls’s theory has attracted some debate as to whether it can incorporate issues of disability. It has even been used in the context of Danish politics to argue for support for people with disabilities, although the use seems to be fairly loose, relying mainly on the idea of a veil of ignorance (see Andreas Føllesdal, Rawls in the Nordic Countries, 192). Peter Handley (“Theorising Disability: Beyond Common Sense”, Politics 23:2, 2003, 109-118) suggests that Rawls (along with Dworkin) uses an “individual deficit” model of disability. Because he blames exclusion on individual limitations, his solutions take the form of attempts at normalisation (110-11). This arises because of his reliance on ‘Benchmark Man’ (Margaret Thornton’s term) as the core of his theory (115). In contrast, the social model, which calls for changes in society, ‘draws attention to the disabling consequences of hegemonic assumptions, such as those of Rawls and Dworkin’ (113). The importance of “Benchmark Man” is clear, for instance, in the case of primary goods. Brian Barry rightly argues that Rawls’s theory is even less responsive to disability issues than utilitarianism, because normalising assumptions about which goods are necessary or desired are taken to be absolute – a ‘dogma’, no less – rather than heuristic (The Liberal Theory of Justice 55-6).

Brighouse similarly suggests that, because he sees disability as ‘impaired functioning’, Rawls thinks it is ‘reasonable’ to call for rectification (Brighouse 553). However, he thinks disability can broadly be included in justice as fairness. This is partly because he accepts the idea of ‘reciprocity’ and the “bottomless pit” problem. ‘Once you are willing to untie what is owed to people as a matter of justice from what they contribute to society, you have the problem that some who cannot contribute should be given goods they cannot reciprocate’ (556 - I would add that this could apply even to basic necessities, and that the alternative is a “reciprocity” which slaughters those it cannot include). One should note how he adopts the position of a normal person passing judgement on the different as a possible burden (without ever considering the opposite possibility). He wants to avoid people with disabilities being ‘too great a demand on social resources’, especially if they ‘cannot offer anything in return’ (540-1; this formula is overtly petty-minded; c.f. 548, 554). Resources shouldn’t be ‘poured’ (!!) into making life more bearable for some, ‘without contributing to [their] productive capacities’ (555; he derives this problem from Arrow). He reconciles this with some degree of equality provision by accepting that people with disabilities are among the worst-off, yet allowing the naturalisation of capitalist “incentives” to prohibit some equalising measures. As with Rawls’s broader use of this concept, it allows Brighouse to argue a position he admits to be an attempt to prevent the normal paying costs to help the different, in such a way that it “formally” derives from the interests of the worst-off (558). (It is not clear how the “bottomless pit” problem can arise in a Rawlsian paradigm, because equality of primary goods would provide a stopping-point in any case. Brighouse does not specify what kinds of resources are to be denied to people with disabilities so others can have more, in excess over equality). Even with all his “bottomless pit” concerns, Brighouse has to define moral agency independently from productive capacity and drop the idea of reciprocity to incorporate disability (544-5). One should note that Brighouse throughout tries to avoid being ‘counterintuitive’ (556), so that, in effect, anything people with disabilities want is to be subject to “rejection rights” by the normal in-group. Therefore, he has not addressed the structural asymmetries built into Rawls’s model of the “reasonable”. He even wants a general preference for ‘more rather than fewer well-functioning citizens’ (549). It is also the case that disability remains an afterthought: the original position is re-arranged into a two-stage process, a process Brighouse admits is necessary to avoid conclusions more burdensome on the normal (549).

Also, Brighouse’s claim that forcible rectification (i.e. normalisation) could be prevented by appealing to Rawls’s right to bodily integrity (554) falls down on three problems. Firstly, it applies only to adults. In many cases, one could already have been forcibly normalised before one has the “right” to reject it. Secondly, he believes in “responsibility for ends” (554), just as Rawls does. This means that someone who refuses rectification could then be held responsible for any effects linked to their disability, including effects in terms of exclusion or discrimination. If these effects were severe enough (which does not mean very severe; e.g. being “unemployable” because of bosses’ discrimination or inaccessible working environments), they would constitute de facto coercion to accept “rectification”. Thirdly, the context provided by the first and second consequences would in turn reduce pressures for tolerance, enablement and special needs provision, further weakening those whose disabilities cannot be “rectified” along with those who refuse “rectification”. Brighouse also admits that Rawls’s theory cannot incorporate people with psychological disabilities (558). Hoekema demonstrates the oppressive implications of the exclusion of the psychologically different by presenting an argument which declares compulsory “treatment” and “rehabilitation”, which by his own account put one at risk of subjection to others’ standards of normality, to be ‘unacceptable’ when used against the normal, yet justified against others (The Right to Punish… 262-3).

Stein’s account is more exegetically accurate. He suggests that mutually disinterested and non-benevolent people in an original position containing only people (or representatives of people) who are fully cooperating members of society would have no concern for non-cooperating people, such as those incapable of working, even to the point of preventing them from starving to death (Rawls on Redistribution… 1004-5). There is no strict Rawlsian basis for redistribution to people with disabilities ‘even if they would benefit enormously from those resources and the redistribution would impose only the most minuscule burdens on others’ (1011). This may not be Rawls’s intent, but it is clearly the effect of his construction of the original position and his petty-minded construction of “reciprocity”. Stein’s reading is supported by Thomas Scanlon, who reads Rawls as specifically precluding any possibility of claims based on a right to a certain level of wellbeing. If there is such a possibility, it is only on the weak basis of mutual aid, not on the basis of justice (Daniels ed., 202).

Furthermore, some of Rawls’s supporters endorse positions not far from Stein’s suggestions. Jeffrie G. Murphy suggests that people with disabilities have a right to a minimum, but nothing more. Demands for such rights should not go ‘beyond necessity’, because otherwise ‘no sane society’ will implement them. Furthermore, any claim above the minimum is trumped by the idea of “earning” (Rights and Borderline Cases 240-1). Murphy portrays demands by and for the different as if they were a kind of irrational zeal, yet his own position, for all its rhetorical pragmatism, amounts to little more than a zealous defence of the primacy of the normal. The demands of the different, by being subordinated to the whims of the “sane” (and normal), are turned by a slippage in rhetoric from a practically unlikely outcome due to oppressive power relations into an illegitimate claim even in abstract ethics. Similarly, Rex Martin wants to include eventualities affecting the normal (e.g. unemployment) as problems meriting universal provision, but proposes to leave special medical and disability needs to charity (Rawls and Rights 190-1). Frank I. Michelman takes a similar view, suggesting that it ‘seems wrong’ (to himself as a normal person) to help people with special needs ahead of those who benefit from small incremental increases in income, and argues for a version of the original position which is risk-averse regarding normal issues but not regarding special needs (in Daniels ed. 336, 339). This means Michelman would presumably label it “just” that people might die from curable diseases because the resources which could cure them go to exorbitant “incentives” instead. Another author supportive of Rawls, Giovanni Maio, is mistaken in his assumption that Rawls’s commitment to personal integrity extends to the ‘non-competent’ (Relevance… 48). However, it is revealing that his approach to the ethics of research on “cognitively impaired” people (such as people with Alzheimer’s senility) is based not on the subjective significance of such research for the people themselves, but on the question of what they “would” consent to if they happened to be normal. He assumes that consent can be divided rigidly into capacity and incapacity, and ignores the possibility that the people he discusses may still have some capacity to give or withhold participation. In other words, he assumes that, if they cannot give consent on a normal basis (i.e. informed rational consent), they cannot consent – and therefore cannot refuse consent – at all. This could have oppressive implications.

One group excluded from most of the benefits of Rawls’s theory is children. This exclusion is explicitly declared under the guise of an archaic idea of an ‘age of reason’ (TJ 126). For children, and also some other groups deemed incapable of being moral citizens, Rawls recommends a principle of paternalism. This principle allows for a variety of oppressions and forms of social closure. People subject to discourses of paternalism are to be treated as potentially normal. ‘We must choose for others as we have reason to believe they would choose for themselves if they were at the age of reason and deciding rationally’. Such decisions should be, if possible, of such a kind as to take into account what children will want whatever else they want in later life, and should seem reasonable and responsible to them when they get older (TJ 183), but Rawls does not seem to require any responsiveness, however mediated, to children or other excluded groups in their present state. Thus, such people are given a place in the system of imposed sameness, even when this bears no relation to who they are at present. In this way, the model of the person Rawls naturalises is actually constructed through a process of imposition and repressive territorialisation. Children have claims only as “future citizens”. They have basic rights, but these are ‘exercised on their behalf by parents and guardians’ (TJ 446). Rawls seems to be against the idea that children have rights (as opposed to being protected in certain ways so as to ensure that they become citizens). For Rawls, any insistence on rights would undermine parents’ ‘natural’ goodwill and create dissention within families. His main interest is not in liberating or even protecting children, but in ensuring that the family performs its assigned role in upholding the social system (JAFAR 165). Indeed, Rawls generally has a conservative and idealistic attitude to the family, which he treats as a political value in itself (PL 243) and at one point even admits to the original position (TJ 180). Thus, Rawls’s “free and equal persons” are only “free and equal” because they have already been turned into conformists through a social relation which is neither free nor equal. It is only once they have been turned into conformists that they are permitted to exercise “equal basic liberties”. One should consider this view in light of research which suggests that certain “social problems” actually involve resource-use conflicts between children (or youths) and adults (see Ward ****). Such resource-use conflicts tend to become “wars” because adults are unwilling to treat children or youths as equals in a conflict: they insist on their own victory. The relation to them, as to anyone who lacks a “sense of justice”, can only be impositional.

Brennan and Noggle criticise Rawls for neglecting the issue of justice for children (Rawls’s Neglected Childhood 49), but their claim that Rawls must recognise children as persons, which ultimately leads them to defend his theory (55), is mistaken. They also slip from ‘all normal children’ to ‘all children’ and later to ‘we all’ in discussions of child development (64, 66). Their position is not unusual – Bojer also thinks Rawls can include children because he is not a full utilitarian, and Geiger and Fischer use Rawls to argue for moderate reforms to protect vulnerable children (H Bojer, Children and Theories of Justice, Feminist Economics 1, July 2001, 6:2, 23-39; B Geiger and M Fischer, Poor, abused, and neglected children’s prospects in a fair society, Aggression and Violent Behaviour 4:3, Autumn 1999, 249-58) – but it ignores the Kantian elements which are at the core of Rawls’s oppressive tendencies. Children can only be recognised in Rawls’s theory as potential persons, and any rights they have are secondary, being derived from moral values located outside themselves (in contrast to moral persons who ostensibly have interior moral worth). RM Hare goes to the other extreme, suggesting that Rawls’s theory logically permits infanticide (in Daniels ed. 100). This may well be precluded on the grounds that children are potential persons, although Hare is right to highlight the weakness of any argument Rawls could present on this issue. Tom Regan suggests that Rawls does not advocate any direct rights of, or duties towards, children and others incapable of a sense of justice (The Case for Animal Rights 17). This has been contested by Rawls supporters such as Peter Carruthers. However, Carruthers is only able to re-admit such “marginal” human groups via arguments which are effectively indirect and involve “partial compliance theory” – for instance, slippery slopes and the danger of instability (The Animals Issue 114-21).

Another issue involving the family which Rawls raises is the exception on his general assumption that people should be forced to snitch on each other, in the case of spouses (PL 218). This clearly involves an Oedipal attitude and is implicitly homophobic, and it also ignores the possibility of intense relationships taking a great variety of forms (not only the state-sanctioned institution of marriage). (Rawls’s case for this exception is also a mystification. In all probability, the exception exists so that the refusal of spouses to testify does not become a cause of conflict between the state and the population it rules). The real problem here is the state’s arrogant and self-privileging assumption that it can demand, at gunpoint, that others show loyalty to itself rather than to other people or groups.

Rawls discusses psychological difference only very intermittently. The only specific case he introduces which impinges on the issue is a hypothetical case of an ‘otherwise intelligent’ person whose only pleasure is counting blades of grass. (This is a hypothetical case, but Bonnie Honig makes clear that cases of this kind exist – for instance, a newspaper report refers to someone who spends up to six hours a day adding digits on a calculator – PTDP 254). Rawls concedes that such a person should be included, as counting blades of grass is his rational plan of life, even if it results from a neurotic ‘aversion to human fellowship’. However, there are two major qualifiers. Firstly, he is only to be included if he “survives” by means of a paid activity - in other words, if he is economically useful. Secondly, he is only to be tolerated if ‘there is no feasible way to alter his condition’, so that one can say it is ‘in his nature’ to enjoy counting blades of grass (TJ 379-80). Presumably, therefore, he would be excluded if his case were exactly the same except for slight variations: for instance, if his ‘aversion to human fellowship’ was sufficient to prevent him from working, if the few jobs he could do were destroyed by economic forces outside his control, if he was not ‘otherwise intelligent’ or if someone decided his ‘neurosis’ was curable. Furthermore, even the person Rawls presents is not represented in the original position, because he clearly has little use for the generic “primary goods” favoured there. His primary need is for a liberty to count blades of grass without interference, and Rawls’s model does not require that the state refrain from arbitrarily rescinding this liberty for a whole variety of reasons. (Suppose, for instance, that his grass-counting required him to be inside a Red Zone during a major summit. One might also suppose that such a person would be unable to do “jury service”, to serve in the army or to survive in prison, all of which affect the kinds of state intrusion which would be permitted in the original position). Such a person is likely to be “inflexible” and therefore vulnerable to random and arbitrary changes in the “background” social arrangements which are made on purely normalist grounds, such as changes in working practices, “restructuring” of the economy, broader job descriptions, redefinition of “communication” and “teamwork” as “core skills”, changes in transport provision and so on. Furthermore, needs connected to psychological difference may be unusual (i.e. not primary goods), urgent, and may require a need for continuity (as opposed to exchangeable units). If such a person is represented in the original position, Rawls would have to acknowledge unconditional subsistence provision and/or a right of unusual individuals to a job niche, as well as a general opposition to reductions in social openness. The category of the “intolerable” would have to be expanded in such a way as to guarantee a right to pursue specific ways of life, rather than a reduction of all people to a centralised logic of balance. Another example would be that, in order to include someone whose good includes permanently wearing a purple jumper, Rawls would have to oppose any “right” of employers to impose uniforms, to oppose conscription and school uniforms and to oppose discrimination against people who do not wear suits to interviews or in court. This would require a far more substantive stance in favour of social openness and against existing hierarchies than Rawls is prepared to take, yet it is necessary if his desire is only to exclude intolerance. (Rawls is clear that his idea of public reason only restricts the background structure, and does not require that specific organisations refrain from authoritarian practices [PL 220-1]). One cannot make a serious case that someone who insists on wearing a purple jumper is thereby reducing others’ liberties or being intolerant of others. In a sense, such a principle of openness would reduce the burden of proof in Rawls’s theory: authorities would have to prove the necessity of each particular imposition with reference to actual liberties, rather than being permitted to posit their overall system as equivalent to “liberty”. Rawls also does not discuss cases such as someone who is able and willing to work, but who cannot work the usual amount of time. In general, he tends to construct a system which is open only to a certain kind of person, and he does not adopt any imperative to open this system to others. (Clearly the argument that someone “would have” accepted a Rawlsian society if they happened to be part of the normal in-group represented in the original position is not likely to convince anyone who is psychologically different, any more than an argument from any other sectional identity such as gender would convince those repressed or excluded by it).

Honig also suggests that the general tone of Rawls’s approach is not conducive to the treatment of the grass-counter as an equal citizen. Such a person is to be interrogated by others, pathologised as a possible neurotic and subjected to interventions to perform alterations whenever this is permitted within the bounds of right. In the end, if all else fails, other citizens are ‘forced’ to treat such a person with respect – or at least with a minimal degree of formal liberal respect, not the full-blown respect owed to fellow Rawlsian citizens (PTDP 152-3). Rawlsian persons, suggests Honig, may be arrogant and smug, assume they know best and pursue the normalisation of others to the fullest degree permitted by the principles of right. If so, eccentrics are not treated with ‘civic and civil indifference’, but are put under constant pressure to prove their worth, to conform or ‘to resist, with sheer stubbornness but never with violence’, the constant pressure to normalise (153-4). Indeed, Honig suggests, the depoliticising neutrality of Rawlsian politics has precisely the effect of encouraging those who would like to use cultural methods to impose conformity (154). ‘The citizens seek to make the grass counter more like them, but Rawls sees no imposition here, only nurturance and aid’; the drive to normalise others is left unexamined (154), even when it has its roots in psychological repression (155). In other words, the “public” inclusion of the grass-counter goes hand-in-hand with a “non-public” imposition of normality or at least a pressure to normalise.

As regards forms of psychological difference in excess over neurotic eccentricity, Rawls has even less to offer. Rawls refers to those who fall outside his conception of the person with insulting labels such as ‘mentally defective’ (CW 259, PL 272) and ‘mental disorders’ (PL 20). This fits Rawls’s view that such differences are a malfunction to be rectified. It is, to recall an earlier discussion, ‘unfortunate’ that the ‘mad’ exist (PL 144). Hence, instead of meeting the needs or interests of those beyond his conception of normality, he constructs an imperative to normalise. If, for instance, tastes and preferences are ‘incapacitating and render someone unable to cooperate normally in society’, Rawls treats the issue as ‘medical or psychiatric’, and calls for therapeutic interventions with the purpose of restoring or constructing a ‘normal capacity’ (PL 185). Any needs resulting from psychological difference are not to be considered in the original position. Compulsions, for instance, are ‘burdensome and irrational constraints’ which would not be acknowledged (TJ 417). Thus, desires become a psychiatric issue the moment they exceed what the system offers. Individuals are pathologised, not because they suffer, but because they fall short of an idealised essence (conceivably, even when they do so only by very little). Rawls’s basic principle is to change people, not the system, and there are no fixed limits on how far pathologisation can be used. It could even be used in cases where the excess is itself a result of the system’s treatment of people. He does not discuss the measures he would advocate should normalisation prove impossible, and it is clear that those who are subject to such interventions are to have little say in the matter. It is hard to imagine that the petty-minded people Rawls encourages to see themselves as “just” would have much time for even “untreatable” differences. Also, there are unintended discriminatory consequences implicit in Rawls’s model. For instance, administrators and judges who argue from “general facts of human psychology” are resultantly unresponsive to the specificities of psychological difference. (How, for instance, is a judge to tell “laziness” or “wilfulness” from incapacity to obey?) Such “impartial” strangers try to sit in judgement over those they cannot possibly understand, resulting in phenomena of the kind revealed dramatically by Kafka. The psychologically different are simply assumed to be, and treated as, something they are not.

There is also a passage in an early essay where Rawls denounces the psychologically different by defending his idea of “competent moral judges” as the reasonable in-group by saying: ‘one could hardly be expected to prefer judgments made… by unintelligent or mentally sick persons’ (CW 18). In other words, if disagreements arise between the normal and the different, one should automatically prefer the normal person’s view, on ad hominem grounds (even though normal people in this position usually make self-favouring and prejudicial decisions). This idea remains implicit in the idea of the reasonable as an insular group, and its normalist implications are made explicit by Gerald Gaus, who suggests that a schizoid personality could not by definition be reasonable (?? 265). Another Rawls sympathiser, Samuel Scheffler, suggests that “we” (the normal), defined by “our” reliance on reactive attitudes, necessarily take a ‘clinical’ and ‘objective’ attitude to people who fall outside such a schema. In these cases, ‘the person is viewed… as someone to be managed or treated or controlled’, not as a moral person (Resp., Reactive Attitudes… 312). This is indeed how the normal view the psychologically different, but to simply assert it is implicitly to endorse it, as if the normal “we” is somehow beyond criticism.

When people in the original position become aware of the possibility that they might be ‘seriously injured or mentally disturbed’, and therefore in his terms ‘underdeveloped’ or ‘unable to make decisions for their good’, Rawls emphasises their normal standpoint when they decide (TJ 218-19). Rather than wanting some kind of guarantee of continued rights and voice so as to “insure” against being oppressed should they become other, they are assumed to be afraid of losing the ‘capacity to act rationally for their own good’ or of losing their ‘reason’ or ‘will’(TJ 219), and therefore to assert a demand for control over the different. Hence, ‘[o]thers are authorized and sometimes required to act on our behalf and to do what we would do for ourselves if we were rational, this authorization coming into effect only when we cannot look after our own good’. The feelings of the actual individual about this relation of substitution are irrelevant; what matters is what she or he would decide were she or he rational, and whether she or he would approve if she or he later becomes rational (TJ 219). ‘Paternalistic principles are a protection against our own irrationality’ (TJ 220). Thus, it is one’s “good” which is to be valued, not one’s self, and the self-in-alterity (the noumenal self) continues to occupy its social place even when this requires a substitutionist gesture. If the self overflows its place, it is the self, not the place, which loses its value. The state and others are, furthermore, to act as an external superego insuring against the failure of the internal superego to prevent returns of the Real. In both this case and the earlier use against children, paternalist principles provide a way to get out of having to except people from selective principles which are based on assumptions irrelevant in their cases. It implies the superiority, not simply the existence, of the normal in-group. He does, however, admit as an afterthought that ‘those more or less permanently deprived of moral personality may present a difficulty’ for his theory, though not one he thinks would require him to alter his account (TJ 446).

It should be recalled that Rawls simply assumes the superiority of the normal in-group. He simply constructs ethics as a monologue among the normal, and reifies the demands of this group as natural facts. This implies that it is unusual or “abnormal” actions and desires which are to be pathologised. In relation to the “abnormal”, Rawls is “unreasonable” in the same way as a religious person who values unbelievers only as potential converts. He treats the “abnormal” as valuable only to the extent that they can be converted to normality, and he does not stop short of advocating the use of state force to achieve normalisation.

In an early essay, Rawls expresses the importance of the normal/abnormal division for his theory by arbitrarily positing the existence of a “we” which excludes the abnormal. Hence, ‘the fact that the principles [of justice] constitute a comprehensive explication of the considered convictions of competent judges is a reason for accepting them. That this should be so is understandable if we reflect, to take the contrary case, how little confidence we would have in principles which should happen to explicate the judgments of men under strong emotional or physical duress, or those mentally ill’ (CW 10). Thus, the fact that Rawls’s principles express the views of the psychologically normal, to the exclusion of others, is for Rawls a case for why “we” (presumably including only the psychologically normal) should accept them.

It should be realised that Rawls is carving up the world to the benefit of one particular group. His image of resources as “results of social cooperation” is an oversimplification. In fact, natural resources are not a result of such “cooperation”, and some social phenomena are the result of people who do not fit his model of the person. (One could emphasise in particular the role of the psychologically different in transformations in the arts, science and philosophy). Therefore, the idea that everything which exists is the property of the normal is nothing more than a simple case of bias. It leads to a narrow conception of ethics which renders it responsive only to one particular group. An ethics operating across psychological difference would have to involve a residual position of openness, not a primary orientation towards reduction to sameness. Such preparedness for openness would put theory on a collision course with the petty-mindedness of those who demand sameness as a precondition for inclusion. The role of “interests”, “rules”, “ideals” and much else would have to be re-thought. Dialogue with the psychologically different can only occur outside and beyond the reach of fixed rules and procedures (which are formulated with the normal in mind), and this requires that people come before rules. If normal people are reluctant to agree that fixed rules taking account only of themselves are unfair, this simply shows that their conception of fairness is discriminatory.

An unusual exclusion which arises in Rawls’s theory is the exclusion of those who have excessive abilities. His principles do not apply to ‘superior or inferior natures’ (TJ 452), and as so often, he takes this as a case for avoiding such “natures” rather than for making exceptions. One is supposed to wish that others have only normal levels of strength, endurance, intelligence and imagination, because, while ‘a certain minimum of these attributes is necessary for right conduct’, ‘it would not be rational to want some to be so superior… that just institutions would be jeopardised’. Too much intelligence, for instance, could be used ‘to override the legitimate claims of others’ (TJ 383). The assumption that others’ attributes are a source of threat rather than support is an outgrowth from Rawls’s model of reciprocity. The resultant taboo on developing abilities “excessively” would seem to entail an imperative to hold people down to an average level. The repressive implications of this are clear. People are to be kept weak and stupid so their abilities do not allow them to exceed the system. It may sound absurd to accuse Rawls of discriminating against Spiderman, but the issue here is real, and becomes more so the more one explores issues of systemically-constructed vulnerability; there are also issues around “post-human theory”.

A good fictional representation of the problems involved arises in the first three series of “Buffy the Vampire Slayer”. Buffy is a superhero-like character whose special characteristics enable her to fight the forces of evil (vampires, demons, etc.) which are (frequently) about to overwhelm or destroy the world. She has a moral “duty” of sorts to resist these forces, and her doing so has very beneficial effects (e.g. preventing Armageddon). However, this “duty” is very much private, because the existence of the forces of evil is not widely known (or rather, as it is often implied, it is frequently repressed and denied). As a (compulsory) school student, however, Buffy is also subject to a second set of “duty”-based demands which are publicly acknowledged and enforced by the headmaster and others at her school. It is clear that, ethically, Buffy’s “private” duties take absolute priority over her “public” duties. However, it is abundantly clear that the former cannot be articulated in terms of claims which would even potentially be recognisable in the terms of “public reason”, whereas the latter involve claims so widespread they are uncontentious in “public reason” and are openly endorsed by Rawls. This clearly shows how the exceptional, who may have special roles in excess over the demands of the system, are excluded and penalised as much as the ostensibly “inferior”.

Another exclusion arises around the issue of the human/animal binary. As Dombrowski suggests, ‘[t]he regulative ideal provided by the social contract can affect animals in many ways, say regarding what can easily be seen as their primary goods or their share of the wealth: a livable habitat’ (Rawls and Animals 73). In principle, duties to animals and nature are among those which are left aside for later discussion and which may force later changes in his theory (TJ 15), but in practice, Rawls seems to assume the ethical primacy of the person over all other beings. This leads not only to speciesism but to a tendency to penalise human beings for displaying animal-like characteristics, as if the existence of a difference between humans and other animals proves the importance of distinctly human characteristics. The way he constructs the noumenal self in contrast to the impulses of ‘lower order’ creatures, and assumes people to be acting like the latter if they fail to act justly (TJ 225), is a case in point. Since justice is reciprocal, ‘we are not required to give strict justice… to creatures lacking this capacity’, and any ‘duties of compassion and humanity’ owed to animals can only be a result of a ‘metaphysics’ of nature and ‘our place in it’ (TJ 448). (This presumably means that there are no general duties separable from comprehensive doctrines, i.e. such issues cannot arise within public reason or be within the state’s remit). It is not clear, in fact, that the rationalisations and public performances of conformity which Rawls emphasises are distinctly human; they are in many ways similar to the actions of trained animals, and express a condition of domestication rather than a specifically human condition. It is perhaps for this reason that Rawls attaches so much significance to the role of rationalisation (which requires language-use) in his account of the “moral feelings”, because this renders the feelings purely human. It is clear that animals and nature have no claims on grounds of justice in Rawls’s theory, and also that human beings have no claims to the extent that they fail to differentiate themselves from nature.

The relationship between Rawls and animal rights has been a subject of some debate in the secondary literature. Dombrowski accuses Rawls of morally-arbitrary speciesism, and also says that ‘Rawls has a hard time showing that either marginal cases [i.e. abnormal humans] or animals deserve to be treated justly’ (Rawls and Animals 64). ‘[A]nthropocentrism is assumed from the outset in Rawls’s original position and, presumably, constitutes a fundamental axiom for him that is not amenable to criticism’ (76). The ideas of moral personality and reciprocity are especially problematic in this regard. ‘If moral personhood were the whole story in Rawls he would not even be tentative and equivocal; rather, he would explicitly and unequivocally deny that we have any duties to animals’ (71). The gap through which animal rights advocates crawl is left open because of Rawls’s inconsistency and tentativeness, and certain peripheral ideas such as the concept of natural duty. Authors who crawl through this gap, however, ignore precisely the aspects of Rawls I criticise for their oppressive implications. Mark Rowlands, for instance, argues that rationality is a morally arbitrary property. ‘Since knowledge that one will be a rational agent is an obvious case of particular knowledge of the properties of one’s self, it seems that this must be bracketed in the original position’ (Contractarianism and Animal Rights 243). Parties should not know this, and there is no reason why rational parties can only contract if those they represent are rational (237). However, such conclusions depend on the bracketing-out of Rawls’s conception of the person as the ideal which defines the restrictions on the original position and the exact content of the veil of ignorance. The fact that rationality is itself a particular personal quality shows that Rawls’s theory is built around a pseudo-universal. However, this pseudo-universality runs far deeper than Rowlands allows, and (as with Rawls’s remarks on economics) it must be read in the broader context of his commitments to common sense and to stability as a primary goal.

I would also suggest that Rawls’s model is ethnocentric. More specifically, it assumes a certain kind of capitalist citizen whose way of life is sufficiently flexible to enable the operation of ideas such as “responsibility for ends”. This assumption implicitly pathologises “primitive” people, peasants and other groups whose ways of life are fixed and are posited unconditionally. Since marginal losses to the statist order of “balance” are always to outweigh desire and specific ways of life, Rawls’s theory is only open to people with a sufficient inner distance from their ways of life that the resultant psychological burden is tolerable. The implicit bias against certain peoples is made explicit when Rawls suggests that ‘rare’ groups such as ‘Arctic Eskimos’ should ‘be handled’ in ‘an ad hoc way’ so as to subsume them within justice (LN 108). Such peoples cannot be well-ordered due to resource shortages, and for Rawls it seems to be unquestionable that they must be made well-ordered. (It is not clear whether this is because he assumes them to have an animal-like way of life, as in classical colonial theory, or whether there is some other kind of discourse operating here). His model of international law includes provision for ‘decent’ but non-liberal societies. However, he seems to treat these as sufficiently similar that liberals’ empathy provides understanding of them (LN 69). In other words, his tolerance is still limited by a conception that value must be linked to sameness. Apart from such decent peoples, others are to be subject to a rather ambiguous project of liberal “aid” to bring them into the liberal fold. Liberals have a duty to aid those ‘living under unfavourable conditions that prevent their having a just or decent political and social regime’ (LN 37). The “aid” seems to be less philanthropic than quasi-colonial, since it is directed to normalising such societies. Rawls’s model can therefore be criticised on two counts: it is interventionist enough to allow US imperialist endeavours, yet does not involve any consistent commitment to human rights for individuals. Patrick Hayden, for instance, notes that Rawls’s essentialist and statist conception of culture means that ‘vulnerable and marginalised individuals and groups are… left at the mercy of local standards’ (Rawls, Human Rights… 54). Alejandro also notes that Rawls seems to imply that the internal structure of a society can be just, even if it is based on externally oppressive practices such as sweatshops and the arms trade (Rawls’s Communitarianism 90).

Another exclusion has already been discussed, regarding ways of life which fall outside the capitalist economy. Rawls’s discussion of surfers suggests that he leaves no leeway for any conception of the good which requires even minimal levels of leniency from the economic system. Another exclusion, of slightly different origin, arises around the issue of immigration. Because Rawls adheres to the idea that someone must “own” each territory for purposes of environmental preservation, and also because he wants to ‘protect’ each ‘culture’ from the threat of a ‘deracinated’ global market (which he strangely sees as a threat borne by immigrants rather than capitalists), he supports the use of immigration controls. He sees immigration as an unjust way of escaping from environmental collapse and population growth (LN 8, 39).

Thus, Rawls’s theory is pervasively exclusionary. It is geared solely to the well-being of those people who conform to a narrowly-conceived conception of the person. Other groups are to be suppressed, normalised or excluded in one way or another. Rawls’s image as a defender of liberty is largely a result of the extensive freedom he grants to those who fall inside the prescribed model. In fact, this freedom is limited to insiders, and is constantly subject to processes of selection which ensure that others are pushed outside its remit. Rawls’s theory is to a large extent a “justification”, not for equal liberties, but for exclusion of nonconformists. Any “benefit” it has is exclusive to insiders and must be based on some concealed form of “special pleading”. Indeed, if Rawls’s theory succeeded in uniting a stratum of people around a single conception of justice or a grouping of such conceptions, it would tend to strengthen the power of this stratum and therefore intensify the oppression of outsiders.

In the international sphere, Rawls also takes the dangerous position of supporting possession (and therefore, presumably, in some circumstances, the use) of nuclear weapons as a deterrent against outlaw states (LN 9). In other words, his “realism” is of a type which could lead to armageddon. Meanwhile, this means that he labels unilateralism as a “dangerous” doctrine (see PL 354-5) - albeit a dangerous doctrine which must be tolerated and even enforced if a majority believe it. As regards anti-war protests and the Vietnam War, Rawls says that these raise ‘profoundly troubling’ issues which are ‘still unresolved’ (PL 346) - in other words, he refuses to take sides. (Rawls’s theory should have radical implications around issues where proper-name or status identification is presently significant in law - for example, possession of nuclear arms, and the special privileges cops have as regards sentences for assault. However, he would probably find a way to wriggle out of such implications).

Rawls’s project has the general effect of depriving the oppressed of an ethical terminology through which to challenge oppression. All the ethical terms have already been appropriated by the oppressors.

EXCLUSION AND THE PROBLEM OF APPLICATION

“[O]ur justice system has nothing to do with justice. Our judges and lawyers are more like glorified
garbage men, rounding up and disposing of society’s refuse - ethnic cleansing, American style’ - Michael Moore, Stupid White Men p. 203

“Too much justice is injustice” - medieval pamphlet, cited James C. Scott DAR
“I would rather see injustice than disorder” (Goethe ****)
“Are military tribunals fair? That’s a good question. But why not ask whether crashing airliners into US
buildings is fair? When a country goes to war, there is nothing fair about that decision. Life is not fair. Neither is war. President Bush is trying to ensure that justice prevails” - Jim Kontilas of Texas, Time letters, p. 10, 24-12-01
“The law should be just another weapon in the government’s arsenal, and in this case becomes little more
than a propaganda cover for the disposal of unwanted members of the public’ - Brigadier Frank Kitson, Low Intensity Operations: Subversion, Insurgency and Counter-Insurgency, Faber 1971 p. 69
“He’s a bad guy, but he’s our bad guy” (several US presidents on foreign leaders such as Diem and Rhee)
“I don’t give a fuck about the law” - PC D343, during a police attack on pickets outside the Italian embassy
in which pickets were punched and kicked; cited SchNews, 2 Aug 2002 and SchNews yearbook 2002, p. 233; c.f. another police officer heard to deny that he is “defending democracy” on Mayday 2001 (cited Offline/IndyMedia)

Another difficulty with Rawls’s theory which constructs further possibilities of exclusion is that most of what he promises in theory is in some instances suspended in practice (often on a basis which is not clearly specified and is open to creative readings by politicians and statists). Although justice is paramount, it is also supposed to ‘take into account its wider connections’ (TJ 6). This means that Rawls may in practice end up defending, or used in the defence of, practices he strictly speaking opposes, as well as opening loopholes by attaching riders to most of the rights and liberties he endorses. These riders include both routine and emergency exemptions. The latter are more important than they may at first seem because the use of “emergency” pretexts to suspend rights is an increasingly widespread practice. (Notice how anti-terrorism laws brought in as “emergency” responses to, say, the Red Brigades or the IRA are rarely rescinded when the “emergency” is over. The IRA ceasefire in Britain actually coincided with the extension of the Prevention of Terrorism Act, a “temporary emergency” law mainly operating in Northern Ireland, into permanent legislation covering the whole of the UK. This is partly because the state finds such laws too “useful” to discard, and partly because there is never a clear point at which “everyone” suddenly realises the crisis is over. States usually only repeal repressive laws after uprisings - e.g. Taiwan, Indonesia, Brixton). Indeed, Hardt and Negri go so far as to suggest that the present system is one of permanent exception: there is always some excuse to suspend liberal rights even though they are rarely renounced in principle (****). Marx details a similar logic: the bourgeoisie rights and liberties ‘as the absolute right of the French citoyen, but always with the marginal note that it is unlimited in so far as it is not limited by the “equal rights of others and the public safety” or by “laws” which are intended to mediate just this harmony’. The constitution refers all freedoms back to a future organic law which is to ensure it does not exceed such limits, and later, ‘all those freedoms [are] regulated in such manner that the bourgeoisie in its enjoyment of them finds itself unhindered by the equal rights of other classes… [B]oth sides accordingly appeal with all justice to the Constitution: the friends of order. who abrogated all these freedoms, as well as the democrats, who demanded all of them… [F]reedom in the general phrase, abrogation of freedom in the marginal note. Thus, so long as the name of freedom, was respected and only its actual realisation prevented, of course in a legal way, the constitutional existence of freedom remained intact, inviolate, however mortal the blows dealt to it in actual life’ (18th Brumaire 23-4). One might term this the politics of “pigs”, drawing on Animal Farm: one introduces a principle and then suspends it in the small-print. Even basic liberties, Rawls admits, are not absolute - they depend both on other liberties and on social conditions (TJ 54, c.f. TJ 306). This sounds very similar to Marx’s comments. Rawls seems, in fact, closer to the second group of positions outlined above - all of which could be expressed in the slogan “justice as unfairness” - than to the connoted implications of the words he uses most frequently. (Rawls puts “partial compliance” issues in a secondary position in his theory, dealing with them retrospectively after having already constructed the “ideal” theory of justice, a means of argument which conceals power relations. This enables a gap between his ideal and nonideal positions). In refusing to construct his theory of justice in unconditional opposition to all “injustice”, Rawls turns it into an alibi for certain kinds of “unjust” power. Instead of rendering the system conditional on its “justice” (i.e. “a just system or no system”, i.e. “no justice no peace”), Rawls inconsistently advocates the state prior to justice. When statist abuses are not permitted by his principles, he frequently suspends or amends them, rather then confront the state. Rawls’s idealist tendencies reflect a refusal to consider “law” and the state as power-operations and as social relations of domination, violence and oppression. Instead of dealing with the rights and wrongs of particular situations, he associates himself with a particular agent almost to the point of “the state right or wrong”.

Rawls’s principles are not responses to actual problems, but are constructed on an overall approach viewed from the system’s perspective. He admits to taking a ‘whole system’ approach to justification, justifying the parts by the whole, so that none of the specific principles or parts is ‘a universal statement which always suffices’. Thus, he can advocate ‘contrary lines of action in particular cases’ without in his own view being self-contradictory (TJ 300-1). This approach allows Rawls to make absolute and general statements which are misleading. Rawls’s general model is, in his own words, an ‘ideal scheme which shows how the two principles of justice might be realized… Granted that existing conditions always fall short of ideal assumptions, we have some notion of what is just’ and can therefore relate the present to the ideal (TJ 272). The ideal is regulative; it does not express an actual set of relations. In spite of this, he claims that the rights he supports are effectively absolute in practice, ‘under favourable conditions’ (TJ 443). (Where does he draw the line between subjectivity and “conditions”?)

One example of an idea Rawls opposes but implicitly enables is “telishment”. Put simply, a “telishment” is a punishment or similar practice (i.e. there is definitional problems over whether it is “punishment”) which is applied without regard for the guilt or innocence of those subject to it. The concept arises in the context of Rawls’s critique of utilitarianism, which would justify “telishment” provided it maximised wellbeing, whereas Rawls opposes it. (An example would be if a particular kind of crime was becoming widespread, causing public concern, and the state was unable to catch the guilty people; it might then catch some innocent people and punish/telish them, thereby alleviating public concern and maybe deterring the crimes). Rawls is firmly opposed to telishment, on a number of grounds: it gives arbitrary and excessive power to authorities; its risks are limitless; it involves the operation of unobservable and unaccountable elites; it leads to an uncertainty whether to sympathise with the authorities or those they punish/telish; and it leads to a fear of being telished (CW 26-8). However, he does not derive any critical implications from this opposition. He seems to presume that the institution of telishment is simply a thought-experiment. However, one could list as possible examples of telishment: “exemplary” punishments during moral panics; stitch-ups against innocent people (e.g. the Angry Brigade trials, the MOVE 9 and Panthers); and attacks on demonstrations, especially when carried out ostensibly in response to “violence” by a “minority” but conducted against all demonstrators. Even more blatantly, the operation of catch-all laws with a lack of specificity (e.g. in the UK, “harassment”, “breach of the peace” and other “public order offences”, ASBO’s, etc.) are a case of institutionalised telishment, since their vagueness means that an “enforcer” can define guilt selectively so as to criminalise almost anything. One could, indeed, take Rawls’s critique of telishment and apply it intact to the existing system of “punishment”, without a great deal of inaccuracy. Certainly, it accurately depicts the grouping of attitudes which this system induces among those it victimises most frequently (e.g. protesters: see in particular SchNews’s “crap arrests”). The gap between telishment and punishment is also less extreme than Rawls imagines: an agent who identifies strongly with an act and feels it to be necessary or essential is likely to experience a punishment as if it were a telishment. (There are other intermediary phenomena, such as selective enforcement - “zero tolerance” in particular areas or against particular groups - and selective, e.g. politically-motivated, prosecutions). If Rawls recognised the existence of telishment or the lack of distance between telishment and punishment, he would be forced into a more radical dilemma: is he prepared to endorse telishment, or would he rather demand the destruction of the existing state (and perhaps of states per se)? Also, the policy of guilt until proven innocent in cases where weapons are found (something Rawls advocates in some circumstances) is clearly a de facto license for the state to telish by planting weapons (c.f. again the Angry Brigade trials). Rawls makes the mistake in such cases of treating “practices” in their legal/formal rather than their actual form (i.e. analysing the possible legal operation of a law, rather than the likely effects in terms of police practices).

One also seems to be getting into the realms of “telishment” in cases where the system recognises something as a general fact, and yet also punishes it as a crime. On September 12th 1973, Judge Kinnard in the Liege assizes ruled that shoplifting is not a crime because it is allowed for in the practices of shops and is partly a consequence of temptations induced by gaudy displays (Ratgeb p. 14). Indeed, many illegal acts are of such a type that they are induced by the social system, yet they are nevertheless criminalised. Another example would be instances where the police attack or provoke protesters in the knowledge or belief, or even with the intent, that this will lead to acts in self-defence or retaliation which are illegal. Something cannot be a knowable general fact (“reasonable”) and yet simultaneously a product of character-flaws and a transgression of the reasonable (“unreasonable”). Proposing a system which punishes people for acts which it also calculates will happen and takes into account in its normal functioning, i.e. punishes people for acts which one accepts as an inevitable part of the society in question, is clearly not “proposing terms of cooperation one reasonably believes others will accept”. It is, precisely, proposing a form of social cooperation in which one knows very well that others will deviate and be punished. (Perhaps Rawls “knows very well but still…”).

Another general taboo is against ‘bills of attainder’ - laws which are used against expressly named individuals rather than applying in general. These are, however, permitted as ‘occasional’ measures, along with retroactive introduction of laws, so long as neither are ‘pervasive or characteristic features of the system’ (TJ 209). This excuse is significant, because ASBO’s are certainly a case of bills of attainder, and one might also typify parole and bail conditions in this way (especially when these involve extreme intrusions on life-choices).

The family has a peculiar position in Rawls’s theory. Because of its special systematising role in Rawls’s theory (basically, as an outsourced factory for the mass-production of citizens), he tends to view it as sufficiently important to allow the suspension of other principles. For instance, its usefulness in terms of social order outweigh concerns about equal opportunities (CW 596). Rawls’s position on the family tends to be such as to take with both hands: on the one hand, Rawls permits systems of domination within the family, provided these are functional for liberalism; on the other, he relativises the family, refusing to protect it from statist intrusions and specifically legitimating these intrusions on grounds of functionality.

When balancing occurs, it seems to be the bourgeoisie who weigh the most. An example is the case of tariffs which favour particular groups of workers (in the context of capitalism, including generalised inequality, alienation and exploitation, and the irrationality of the work system). In such cases, Rawls sees the defence of tariffs as unjust, even though their removal harms the worst-off (TJ ****). However, one could equally “weigh” it the other way: defence of the tariffs could be seen as a necessary protection of those otherwise victims of capitalist injustice, i.e. as a compensating or lesser injustice. It is indicative which way Rawls leaps. It is also significant that he identifies the long-term expectations of the generically-defined worst-off group as the relevant measure (TJ 252), since these are the most distant possible way of discussing poverty in abstraction from its specificities, and the most vulnerable to mythical rendition. He specifically uses this idea to include ideas such as training and investment among the measures which are “in the interests of the worst-off” (see INEQUALITY).

Other suspensions arise partly as a result of the idea that the unjust have no right to complain about their treatment. Hence, any injustice arising as a result of unjust others (or more accurately, anything a user of “public reason” can pin on unjust others in order to excuse it) can potentially be justified, whether it takes the form of a compromise with an unjust majority or a set of repressive measures which undermine liberalism itself.

Rawls does not make clear how he stands in relation to actual cases such as McCarthyism and the present anti-Muslim hysteria, but he certainly leaves room for such crackdowns to be excused by reference to unjust or intolerant others, to amorphous threats or to “emergency”. (If he did not support such crackdowns, it would be for contingent reasons which fall a long way down his list of ethical priorities, not for fundamental reasons). Rawls is committed to equal liberty, but not to maximising liberty; therefore, there might even be cases where “equal liberty” means levelling down (e.g. internment of everyone rather than of foreigners, or the Israeli army shooting foreign protesters as well as Palestinians, rather than shooting Palestinians).

Another group of exceptions occurs when Rawls tolerates injustices so long as they remain within (usually unspecified) limits. The most blatant case of this is the idea of legitimate law (see below), but there are also other examples. On one occasion, Rawls declares that class bias in politics is acceptable so long as it remains within limits (TJ 318). On another, he states that there must be a constitution - but it need not be written (TJ 336 - how does one tell an unwritten constitution from the absence of a constitution?).

Even regarding the claims which are supposed to have ‘no value’, there is little actual protection: that which is excluded from the ‘scales’ of liberty may nevertheless return as a pragmatic issue. ‘Of course, it cannot be denied [NB the double signifier of authenticity] that prevailing social attitudes tie the statesman’s hands. The convictions and passions of the majority may make liberty impossible to maintain. But bowing to these practical necessities is a different thing from accepting the justification that… [these feelings] should carry the decision’. One is only to ‘move toward just institutions as speedily as the circumstances permit irrespective of existing sentiments’ (TJ 395-6; c.f. LN 90). In other words, even an unjust present does not negate the problematic whereby one identifies with a central legislative position; one is, rather, to bow to “necessities”, not to reject the majoritarian/submissive logic itself. Rawls does not take a consistent position of conscientious resistance to bigotry and oppression, even in cases such as equal liberty. Rather, Rawls would adopt a transitional stance of trying to move towards the creation of liberal institutions. ‘It is only when social circumstances do not allow the effective establishment of these basic rights that one can concede their limitation’, if such limitation is ‘necessary to prepare the way for the time when [restrictions] are no longer justified’. Hence, the ‘denial of equal liberties can be defended… when it is essential to change the conditions of civilisation so that in due course these liberties can be enjoyed’ (TJ 132; c.f. 475 - again one can ask, where is the dividing-line between subjectivity and “conditions”?). Even slavery and serfdom are ‘tolerable… when they relieve even worse injustices. There may be transition cases where enslavement is better than current practice’ (TJ 218). It is not clear what “circumstances” make liberty impossible (though presumably it is established in “public reason” in some way); most probably, Rawls is referring back to his primary commitment to systematisation (i.e. it is impossible in any situation where the prior existence of a singular, stable state cannot be assumed, and in such cases the “need” to impose a state is to be taken as more important than the defence of equal liberties). Such rhetoric foreshadows the possibility of a liberal equivalent to Stalinism (an equivalent one may say existed in some Cold War-era “liberal” military dictatorships such as those in Korea, Vietnam and Taiwan): the present-day dictatorship is legitimated by an appeal to a forever-postponed future time in which a well-ordered society would finally be realised. How is one to tell a dead democracy from one which is “pining for the fjords”? When can one finally admit that one can no longer tell the pigs from the farmers? (On its own terms, there is nothing wrong with some of Rawls’s conception of transition; there may, indeed, be cases where an unjust practice, even one such as slavery, would be a lesser evil. The crucial point, however, is the relation of the self or of one’s own theory and practice towards lesser evils - which in some cases can also be termed soft cops. This is a complex issue, but simply supporting lesser evils as and when they arise is a naïve position).

It is hard to see how an idea such as “injustice is justified so long as it prevents greater injustice” could be applied without blatant abuse. It depends for its operation on counterfactuals, and it is plainly not within the potentials of “public reason” to provide these. What it can, however, provide is a series of myths and dogmas about the sources of “injustice” which could allow discursively privileged groups to maintain that their own dominance is a “lesser injustice”. Indeed, one may well conclude, on examination of actual discourses likely to arise from the acceptance of a particular claim, that principles which seem plausible to liberals when viewed in an overly abstract way (e.g. a right to ban strikes in some kinds of national emergencies, to institute guilt until proven innocent for weapons possession or terrorism, to suppress a religious sect deemed likely to cause instability, etc.), should be rejected by liberals on the basis that the marginal gains in a few very rare cases where the power would “legitimately” be invoked are outweighed by the extreme and generalised threat of abuse involved in such institutions (e.g. the threat of totalitarianism). In such cases, the positing of rights as absolute would be conceived as a necessity to prevent state arrogation of powers through the use of slippery exceptionalist discourses. The gain in terms of “power” - in this case, the possibility of instantly recognising and quickly and decisively mobilising en masse against statist abuses - could be said to “outweigh” any loss in terms of “efficiency” or in terms of marginally just actions in a few rare cases. (One could also add that the lesser-evilism of “legitimacy” is precluded by the need for the transcendent good of hope). However, to pursue this line, a liberal really would have to put liberty ahead of the state; one would have to value actual liberty more than one values the “basic structure”. One would have to posit an “interest” of the person in limiting state power, an “interest” Rawls is loath to even consider.

It is also significant that this rhetoric involves reference to deagentification, i.e. one is able to blame excluded groups for the state’s unjust practices which “make necessary” the state’s actions. This is in contradiction with Rawls’s endorsement of a molar conception of the self and his view that this self is never above ethical responsibility.

Rawls seems to think that having an ideal theory of justice is somehow a good even if this theory is not satisfactory in actual cases. A ‘conception of justice for the basic structure is worth having for its own sake. It should not be dismissed because its principles are not everywhere satisfactory’ (TJ 8). But what is the use of a theory which does not have an emancipatory role in actual relations?

One of the problems is that Rawls seems to put the systematising drive ahead of the particular content of the system. In other words, he wants the system to be as “fair” as possible, but above all, he wants an overarching system, and this leads to a tolerance for unfairness when demands for fairness would have a subversive significance. In other words, an authoritarian and normalist preference for social control has a limiting effect on the discursive significance of the demand for justice/fairness in Rawls’s theory.

One may compare the actual operation of liberal systems and the way they use empty justifications comparable to Rawls’s. For instance, the High Court’s excuse for detention without charge of innocent refugees is as follows: ‘There are situations where such a course is justified’ (Ceefax 109, 31-10-02). In other words, the court uses its overarching position to simply impose the “necessity” of a measure of which it approves. The British government excuses internment of foreigners on the basis of a phoney ‘public emergency affecting the life of the whole nation’ (cited LLB Sept 02 p. 16). Another example is the way in which states try to depict anti-capitalists as “terrorists” and “criminals”, so as to invert the actual situation (i.e. repression against protesters and residents of areas holding summits) into an issue of defending liberty. One also sees the constant use of a Kitsonist strategy of using laws as a tool to suppress rights; for instance, the US police use the idea that protesters are ‘planning crimes’, however petty (i.e. they may be planning to block roads or post flyposters), as a pretext for suspending what are otherwise inviolable first-amendment rights during anti-capitalist demonstrations (see Katsafiakis ed. on Seattle and since). c.f. the following passage from Consent or Coercion?: ‘In my town, in obvious violation of their own laws, the police set up roadblocks to stop all motorists, check their sobriety, and search their vehicles for contraband if there is suspicion of any illegal activity after questioning them. This is done under the guise of checking for valid drivers’ licenses, which is clearly a ruse since there is no indication of any wrongdoing when the people are stopped. But if anyone would refuse to submit to a search, they would likely be charged with interfering with the duties of a police officer, disorderly conduct, and resisting arrest, plus whatever other charges the district attorney could dream up. If you were to challenge the roadblocks in court, the judge would probably say that the Constitution, the supreme law of the land, does not really mean what it obviously says when it forbids unreasonable searches and seizures, but that it has been interpreted to mean something entirely different. It now means that the government has the power to decide what is or is not reasonable, entirely voiding the purpose of the law. The law means whatever those in power say it means. The courts have ruled, for instance, that conscription is not involuntary servitude… Residents of public housing can have their apartments searched without a search warrant. What seems outrageously intrusive today is tomorrow’s legislation’ (2-3). cf. also re religious freedom: the case of a sect whose statue was pulled down on a technicality by the French state; the issue of access to Stonehenge; a series of police raids on mosques recently (one such raid carried out for the purpose of deporting Afghan refugees, another for ostensibly anti-terrorist purposes even though nothing was found); etc.

The law is often used, as in the Kitson quote, as a mere “tool” to oppress, remove, terrorise, intimidate, harass or disempower those seen by the state or other elites as a threat. Rawls prevents awareness of this concrete operation by locating discussions of the law on a non-concrete level. To take an example, it is quite clear on the level of effects that black radicals in the US are victims of a sustained pattern of violence and victimisation carried out in large part through the use of legal and “law-enforcement” institutions. Another clear-cut example involves the sentences following the Bradford uprising: absurd sentences of four to six years for Asians, in a context where fascists received 2-year or less sentences and police who engaged in extreme violence did not even face charges, can only be described as a blatantly obvious form of racism sufficient to indict the entire legal system as racist (not to mention that the “crimes” were in large part acts of legitimate self-defence and occurred in a context of “intolerable” provocation by fascists). Such victimisation could not be defended behind a “veil of ignorance”, yet it does not become immediately apparent from a formal examination of “institutions”. For this reason, Rawls can maintain faith in a discriminatory system, without having to endorse directly its discriminatory practice. He can then either deny that concrete abuses happen or portray them as a price worth paying to have an abstractly justifiable system. (c.f. Paul Treanor article - superhero example). (Lest one suggest that a slightly different liberalism could solve this problem, it is hard to see how the state could ever be persuaded or “incentivised” to refrain from self-favouring).

Rawls’s favourite institution, the Supreme Court, has had a despicable role in a number of recent cases, refusing to strike down the three-strikes law, siding with Reagan over anti-union scab labour laws (see Castagnera 304), siding with the statist lynch-mob in the Mumia abu-Jamal case and refusing to rule Camp X-Ray illegal. It has shown no concerted interest in challenging police corruption and racism, let alone violence and repression. Most of its great achievements are, significantly, made many years after the events to which they relate, and long after the political significance of these events has vanished (e.g. Attica, internment during WW2, etc.). Moore p. 206 reveals that the US Supreme Court deems that children are incapable of signing contracts, yet are “mature” enough to receive the death penalty. cf. also the following report from Argentina: ‘Many people have also been demanding the removal of the Supreme Court of Justice. This is because of the court’s “feats”: throwing out challenges to Menem’s corrupt privatizations and the bribery that facilitated them; Cavallo’s “Bonex Plan” of 1992; the loosening of labor laws; the staying of suits against civil employees and, as a finishing touch, the pardoning of Menem for his decisive participation in arms trafficking, which is related to the blast at the Río Tercero powder magazine. To make matters worse, the court’s members receive exorbitant salaries that cannot be reduced according to the Constitution, and they are exempted from taxes due to a decision they themselves made’ (Federación Libertaria Argentina, “Argentine Meltdown”, in Anarchy: A Journal of Desire Armed, Spring/Summer 2002, pp. (10-)11).

One should add in this regard that the restrictions Rawls places on the Supreme Court are only restrictions on what they say (PL 236), i.e. on the legitimations they offer, and not on what they do (even if what they do is in contradiction with what they say). It is always a bad sign when an excuse convincing to an in-group is sufficient to legitimate any practice.

As regards attempts by the state to wriggle out of the first amendment, Rawls opposes its attempts in the specific cases he discusses, but worryingly, he does not oppose the general mode of using doublespeak to wriggle out (PL 350-1). Crucially, Rawls never raises issues such as whether the oppressed can trust the courts and how one struggles for freedom against the state when it acts repressively; his discussion is limited to constitutional and legal concerns. Rawls does not wish for his theory to generate an Orwellian dystopia, and he uses his own interpretations to resist this tendency, but his theory could nevertheless be used as the ideology of such a world, given a particular kind of reading. Rawls has failed to incorporate sufficient resistances into his theory to prevent such an occurrence.

Rawls puts too much faith in the judiciary because he interprets them in relation to a mythical schema (as carriers of “public” discourse) rather than as a specific social group. In practice, judges and lawyers often place some limits on the power of other parts of the state, but neither prosecutors nor judges are interested in seriously challenging unjust aspects of state dominance, such as police violence or even blatant racism. After all, their own power depends on police dominance. As a social elite, the judiciary has strong libidinal investments as well as material interests in resisting so-called “disorder”, i.e. social processes which would undermine the power of the judiciary along with that of other elites. Like many strata, they turn the conditions for their own existence into universal absolute necessities. Is it really surprising that they place more value in having a “workable” system, i.e. one which minimises their workload and which makes them final and powerful arbiters, over humane and particular considerations which would increase their workload and decrease their power? Restrictions such as “only when necessary” are only meaningful if an external force limits the state in such a way as to constrain it in line with the restriction.

Rawls’s claim that systematisation makes it harder for strong groups to advance their interests without getting caught (TJ 282) turns out to be completely inaccurate. The loopholes built into Rawls’s theory, combined with the pervasive power-inequalities it permits, construct a situation where the strongest groups can easily seize extensive power. It provides, in other words, a pretext for “lawful evil” (in the AD&D sense; Rawls is “lawful neutral”, not good, in terms of this theory, whereas my critique is coming from a “chaotic good” alignment).

HOW CAN ONE CHANGE IT?
“It is the drawn sword of the nation, which checks the physical power of its rulers” - classical liberal Wilhelm von Humboldt, writing before liberalism was lost to the “nation” and became the “rulers”; cited in Noam Chomsky, At War with Asia, p. 238.

The problem of social change is one Rawls rarely addresses. He engages in substitutionist confusions of the state with “society”, and seems to assume that democracies do in fact act according to the will of the majority. Furthermore, he trusts states disproportionately, and distrusts “individuals” (see RATIONAL, HOBBESIAN). Thus, he tends to construct the state as a powerful group and individuals mainly as sources of threat to be held in check. However, the main object of a theory of justice seems to be public discourse, and it is ineffective unless this public discourse is able to render itself an active force in relation to powerful social institutions, especially the state.

The idea of assessing the state as a “practice” (or institution) is an excuse for it. Whereas the state does not have overwhelming demands placed upon it, even to act justly or fairly, individuals are under overwhelming demands which are clearly unmeetable in most cases. For instance, if one rejects a “practice”, one is not supposed merely to oppose it, but also to declare this opposition in advance, to avoid participating in it and even to avoid benefiting from it (CW 60)! This naïve attitude to resistance would seem to render impossible resistance to pervasive institutions. (How can one resist a system as pervasive as global capitalism, or institutions with unspecifiable and generic effects such as the military, prisons or CCTV, under this principle?) By guilt-tripping individuals while rendering the state immune from guilt, Rawls creates a strong asymmetry with conservative theoretical and social effects.

The “intolerable” provides virtually the only limit on the state in Rawls’s theory; however, it is applied selectively and, again, in line with common sense, not actual reactions. (For instance, Rawls does not seem to see it as intolerable that self-defence against police is criminalised).

As regards actual instances of oppression, Jeffrey Paris’s historical analysis makes clear that Rawls frequently avoids confronting contemporary oppressions by displacing its concerns onto ahistorical or past examples. In practice, this means Rawlsianism tends towards complicity with dominant oppressive systems – for instance, neo-liberalism (Paris “After Rawls” 681).

JUSTICE AND “LEGITIMACY” (see also REASONABLE: LEGITIMATE LAW)
“Injustice anywhere is a threat to justice everywhere” - Martin Luther King, cited FRFI Dec 02-Jan 03
“Sometimes we must rise above principle” - Jesse Unruh, California politician, Heretic’s Handbook p. 17
“Democracy becomes a government of bullies tempered by editors” - Ralph Waldo Emerson; HH p. 3
“No justice, no peace!” - slogan often heard on demonstrations

One reason the rights Rawls offers can never be actualised on his own terms is that he effectively subordinates “justice” to its institutional context, “legitimacy”. (This is stronger in his more recent work. The original edition of TJ suggested that the two principles might not hold outside ideal situations – see orig. TJ 245). People are supposed to take a critical stance towards institutions, and their decisions ‘should always be regarded by citizens as open to question’ (PL 431). However, this questioning rarely extends into resistance, because Rawls prioritises the legitimacy of institutions over the justice of their decisions. Indeed, he admits that the “division of labour” he establishes between principles for the background structure and those for individuals mean that people end up simply obeying rules, rather than obeying justice (PL 288). Rawls assumes “legitimacy” (sometimes termed “pure proceduralism”, and identified with the “barely just” in the first edition of TJ) to be necessary for justice and in a certain sense ethically prior to it. In particular, he does not demand that a law, action or decision be “just” in order for it to be “legitimate”; one can therefore be morally obliged to obey (or even “enforce”) an “unjust” law or decision. One is to obey unjust laws even if one does harm to others by doing so (CW 119). Rawls assumes the duty to obey unjust laws to operate, asking only ‘why… we normally have a duty to comply with unjust laws’ and not whether “we” do. Because it is a duty ‘most writers’ would accept, Rawls takes it as a ‘fact’ (TJ 310). Thus, ‘our natural duty to uphold just institutions binds us to comply with unjust laws and policies, or at least not to oppose them by illegal means as long as they do not exceed certain limits of injustice… In a state of near justice, then, we normally have a duty to comply with unjust laws in virtue of our duty to support a just constitution. Given men as they are, there are many occasions when this duty will come into play’ (TJ 311). This obligation is restricted by “limits” at which injustice precludes legitimacy, but these “limits” seem to be very wide and are certainly unspecified (making it difficult for any act of refusal to occur; see section on legitimate law for more details on “limits”). It is supposed to be ‘obvious to all’ when the limits are exceeded and ‘it is often clear that [basic] freedoms are not being honoured’ (TJ 326-7). This faith in intuition is ill-founded. However, the alternative - a consistent position similar to King’s - is dismissed by Rawls. ‘The injustice of a law is not a sufficient ground for not complying with it’, and positions which maintain this are ‘extremes’ which ‘we need not take seriously’ (CW 179). Legitimacy means that ‘forceful resistance would be unreasonable’ (Idea of Public Reason Revisited **** - c. 8pp from end). Rawls claims that ‘we have a natural duty of civility not to invoke the faults of social arrangements as a too ready excuse for not complying with them, nor to exploit inevitable loopholes in the rules to advance our interests. The duty of civility imposes a due acceptance of the defects of institutions and a certain restraint in taking advantage of them’ (TJ 312). Thus, Rawls effectively concludes that justice necessitates submission to injustice. This is clearly linked to his distrust of individuals and his irrational and self-contradictory trust of the state. I would add that, if the injustice of a law is not a sufficient ground for resisting it, then the basis for obedience must be something other than justice: statism must have a prior basis, presumably an irrational dogmatism, on which “justice” is added as a secondary accretion. Since this is a step back from an insistence on two principles which are themselves conceived as ‘imperfect’ (TJ 88), it is clear that very little is left in terms of positive effects of the idea of “justice”. Procedure trumps outcome. As Treanor puts it, ‘the slogan “process legitimises outcome” is probably the shortest summary of liberal philosophy’, yet, ‘for every injustice, a procedure can be devised of which it is the outcome’ (The Politics of John Rawls 11). Rawls’s theory operates basically to leave the state’s hands free. Instead of opposing repression, Rawls provides rhetoric and excuses to legitimate it. (Another question: how can one have a duty to obey a law so complex that even the best-trained lawyers only know small corners of it in any detail?) (Estlund’s “no sticklers” principle is a rephrasing of the idea of legitimacy. He demands that one ‘not be too picky… by exempting oneself from political principles on technicalities’ - 263. Yet a “technically” unjust regime may cause immense harm beneath the veil of a liberal rhetoric; c.f. “Killing with Words” on the rhetoric of “reality” versus “technicalities”. Who is to decide which kinds of objection are merely “technical”, especially if the “no sticklers” rule is assumed to be enforceable?) (cf Fehige on civil dis.)

Rawls almost admits on one occasion that a prior systematising drive motivates his idea of legitimacy. The reason people in a constitutional convention would agree with the idea of legitimacy is that ‘consenting to one of these procedures is surely preferable to no agreement at all’ (TJ 311). The parties would agree to the risks of unjust laws ‘to gain the advantages of an effective legislative procedure. There is no other way to manage a democratic regime’ (TJ 312). In other words, Rawls assumes, with no argument aside from an empty affirmation (“surely”), that any state is better than no state. Hence, the primary goal is not “justice”, but the existence of a “legislative procedure”, whether just or not. (Feinberg – Daniels ed. 115 – suggests of the original version of Rawls’s theory that the duty to obey the law seems to be unrelated to fairness and separate from any act of consent). Using a mistakenly descriptive modality, Rawls states: ‘we submit our conduct to democratic authority only to the extent necessary to share in the inevitable imperfections of a constitutional system’ (TJ 312). This consent extends from the legislative process to cover also the actions of the executive (orig. TJ 363). Worse still, Rawls naturalises such submission. ‘Accepting these hardships is simply recognizing and being willing to work within the limits imposed by the circumstances of human life’ (TJ 312). As Daniel M. Farrell describes Rawls’s theory, ‘the duty to obey the law typically overrides the right to resist injustice’ (Dealing with Injustice… 187). Rawls takes it as decisive against Habermas that an actual state supposedly could not operate on Habermas’s model (PL 429-30). Of course, the decisive issue is in drawing the boundary between “inevitable” and “avoidable” or “reasonable” and “excessive” types of injustice, and this issue is undefined by Rawls and largely arbitrary in its usual resolutions. Further, the drive to accept the present as “necessary” is oppressive and reactionary. This drive destroys any radical implications Rawls’s theory might otherwise have.

Rawls relies, therefore, on a less well-argued discourse of “legitimacy” (or “bare” justice, or “decency”, or “pure” or “imperfect proceduralism”) in addition to the explicitly advocated discourse of justice. To the extent that the former discourse expresses the idea of “impartiality”, it tends to refer back to the circularity of the reasonable (i.e. a discourse is impartial because it would be accepted by an impartial person, specified in insularity). To the extent that it is derived from an idea of necessity (all institutions ‘are bound in practice to fall short of what is just’ - TJ 316-17 - because they are imperfect procedures - TJ 311), it expresses a pessimism of the will which turns “justice” from being a concrete demand into its being a fantasmatic supplement to an “unjust” social system. Instead of being a directly articulable claim giving voice to those who might resist “injustice”, it turns the concept of “justice” into a claim which can only be used in alterity, as an abstract justification of the social system in general. This involves an acceptance of the state even when it is accepted as oppressive: for instance, he supports trials and punishments in full belief that ‘miscarriages of justice are bound to occur’ (PL 73; Rawls tends to portray these as a purely procedural failing, ignoring substantive evidence of deliberate and systemic biases in actual MOJ cases. In actual cases, miscarriages of justice are often better termed “abortions”). (There is an inconsistency here, presumably due to Rawls’s assumption that the state is an ethical necessity or unconditional whereas people are not. The state is tolerated even when it acts unjustly, but individuals who act unjustly or “commit crimes” are not similarly guaranteed allowances for “occasional” injustice, however empirically valid the claim might be that people in particular circumstances inevitably break the law from time to time. Rawls does not allow a legal defence that one’s sense of justice proved to be procedurally imperfect in a particular case and that this imperfection is a matter of unavoidable necessity. Why, then, allow the same defence to the state?). The idea of legitimacy is linked very indirectly to the two principles of justice, and clearly cannot be derived logically from them. Nevertheless, Rawls imposes the idea of legitimacy very strongly. The idea of legitimacy is a handy way to prevent one from seeing or reacting to oppressive power-relations operating through legalistic forms, even when these are blatantly obvious. It leads to a preference for automatism over humaneness, and to an asymmetry in which state agents are privileged by means of a high tolerance threshold for statist injustice and a low tolerance threshold for individual injustice. Rawls seems to assume that, while individuals deserve only the blunt end of catch-all “applications”, statists deserve catch-all excuses. Some are more “free and equal” than others. (Even individual resistance to injustice has to jump through hoops to qualify for support!) Atomised individuals therefore face the state minus any kind of substantive solidarity (“an attack on one is an attack on all”, “one for all and all for one”, “the free development of each is the precondition for the free development of all” - if justice is not justice for Mumia, for Samah and Jawad, for Peltier, for Farib and Feriba Ahmadi and their children, for Mark Barnsley, etc., it is not justice at all), even around Rawlsian principles.

One should remember that rebellion usually occurs when a particular “injustice” is directly taken as a cause in itself worthy of generalised rebellion - for instance, the Rodney King decision. By refusing the very possibility of such an unconditional assessment of particular cases, Rawls renders the “legitimate” passage from dissent to resistance impossible. While a build-up of “injustices” may be involved in a transition from, say, a liberal democracy to a fascist regime, there would not be a single moment when one could say “Ya Basta!” “No Pasaran!” - Enough! No further!, unless one invested this significance in some particular “injustice” which by Rawls’s standards is necessarily insufficient. Otherwise, it would be unclear when one reached the “line” when resistance is justified, even if retrospectively the process of transition will be obvious. The micropolitics of oppression is all about imposing a new regime without reaching a “Ya Basta” point, so people have a dull awareness of the decay of freedom but do not have a point at which a fused-group-type collective will emerges. The state should face militant, decisive action whenever it commits an “injustice”, because otherwise its tendencies towards repression remain unconstrained; ethical theory should, therefore, tend to encourage a quick and extensive reaction to every statist atrocity; this is the only way to avoid a permanent “exceptionalism” which leads to permanent statist “injustice” and repression. (A small injustice may seem insignificant but, if not reversed, could be a base for others; I suspect there is a “Parkinson’s Law” for the growth in state power as well as in its size). If the idea o f “justice” is to be actual and meaningful, it is necessary that the entire support-base of the state be conditional on its “justice”. Rawls is, however, aiming to avoid, not to enable, rebellion; this is clear from the goals he sets himself, as well as his discussions of desire. Arguing for a duty not to use injustice as an “excuse” to fight for justice, Rawls states: ‘Without some recognition of this duty mutual trust and confidence are liable to break down’ (TJ 312). In other words, a consistent struggle for justice would lead to conflict, and the good of order is to be put ahead of the good of justice. So much for the “desire for justice” as the primary motivating force of the Rawlsian person. It is important to realise that the net effect of Rawls’s theory is to put the burden of proof always on the side of those who would resist, and not of the system which is trying to maintain its dominance in the face of resistance - another privileging of statist agents. He seems to assume people revolt too much, when actually people revolt too little. (The petty-minded Rawlsian person is less concerned about the state running amok than about some petty instance of lawbreaking or “scrounging” by a fellow citizen; such a person feels indignation at the latter, not the former. Indeed, fear of individuals is psychologically necessary to make the state seem necessary). (Also, resistance implies “another world is possible”, whereas Rawls is a “realist” in the narrow sense, i.e. he rarely disavows the present). (Liberalism, by its official principles, would seem to be such that the state ought to be constantly on trial as a result of its logic. In practice, liberal theory tends to neutralise the very concerns it articulates. There seems to be an aversion to changing “who does the ordering”, even when this would be advantageous for liberal principles. In practice, the state’s self-privileging tendencies are so great that even small improvements in liberty or equality usually require either an uprising, or some urgent need on the part of the state to win popular approval - usually a war).

Rawls poses the question, not whether, but ‘under what circumstances and to what extent we are bound to comply with unjust arrangements’. It is ‘a mistake’ to say ‘we are never required to comply in these cases’, so long as the basic structure is ‘reasonably just’. Hence, ‘we are to recognise unjust laws as binding provided that they do not exceed certain limits of injustice’, limits to be determined by the imprecise procedure of ‘balancing’ (TJ 308). This is because the question of handling injustice is ‘a different sort of question’ to those addressed in the original position. One is to accept injustice if it is ‘what it is reasonable to expect in the circumstances’ or is ‘nearly just’, and one has a duty to accept existing institutions unless it can be overridden ‘all things considered’ (TJ 309). The extent of injustice is to be established in relation to its ‘match with our considered judgements’, although there are some cases where it is necessary to attack prevailing conceptions and institutions - though only when success in this endeavour is likely (TJ 310).

The reason the idea of “legitimacy” comes into play is that Rawls is consciously defending a system of institutions rather than specific laws or acts. One might say this is fair enough, were it not for the fact that he implicitly assumes that a law or act can be legitimated by reference to the institution or basic structure which generates it (i.e. micropolitics by macropolitics). An unjust act or law does not render an entire system unjust, either because it is not important enough (one might ask: important to whom?) or because it is compensated by other injustices elsewhere (TJ 50). On one occasion, Rawls appears to say that one should submit even to unjust laws, one should never use injustice as a reason to oppose a constitutional regime, and one should never resist a constitutional regime by methods more militant than those of conscientious refusal and civil disobedience (PL 393-4).

Rawls admits a just institution may be degrading, or undesirably unequal, and yet remain just (CW 48). Furthermore, his list of democratic societies includes some, such as Israel and India, which commit gross human rights violations (?CW). His conception applies to most (but not quite all) contemporary societies (CW 492-3). The only autonomy one seems to have left is the autonomy to assess, in line with rigid standards, whether institutions are in fact just or not (TJ 306-7).

Rawls’s account of legitimacy has been ignored (but not disowned) by most of his supporters, but it has been noticed by some critical commentators. Authors such as fellow liberal Otfried Höffe have accused him of simply assuming rather than justifying the state (see Müller, Rawls in Germany, 167). Habermas suggests that Rawls is insufficiently aware of the problems of linking moral validity to coercive institutions and the problem of the bases of law in social power (BFN 64-5). The problem is even greater than this implies. Rawls’s approach involves a biased focus which directs attention away from oppression. Laws should be assessed, not via an abstract justification of a system “in principle”, but by an analysis of how they actually operate (i.e. as system of power, not as legitimating fantasy). In practice, one could refer to many cases (e.g. Nottingham City Council banning the distribution of blankets to beggars, the bulldozing of Macedonia’s only Albanian-language university on planning technicalities, the use of prison rules to punish someone for revealing facts about prison life, or the use of charity regulations and immigration laws to persecute unpopular cleric Abu Hamza for his religious beliefs) where fundamental rights (here, the right to shelter, implied in Rawls’s idea of basic material needs as human rights, the right to education and to free association, the right to free speech and the right to freedom of religious activities where these do not directly involve intolerant actions) are breached by low-level regulative decisions and administratively-conceived laws (often interpreted in an absurdly self-serving way by the state) - a creeping Eichmannism which arises from the operationalist anti-moral attitudes widespread among statists. (In the case of planning laws, one should add the idiocy of demolitions carried out, not because a structure is harmful in some way, but purely because the “correct procedure” was not followed, i.e. for the self-satisfaction of some bureaucrat, or of housing-sector bureaucrats as a group). Perhaps the most insidious and widespread kind of case involves deportations of refugees on technicalities. (In the Ahmadi case, the refusal of their asylum claim was due, not to its being ill-founded, but to a bureaucratic technicality regarding their registration with German authorities prior to their arrival in Britain; the government did not at any point deny that they had been persecuted and tortured in Afghanistan, and ignored serious humane concerns - for instance, psychiatric reports that they would be harmed if deported - as well as trampling on “first principle” liberties - in this case, the sanctity of mosques. An advocate of the deportation appeared on Channel 5 News and was unconcerned about any such issues; all she cared about was that “the rules” were broken. In contrast to CDAI commentators who insisted that they are “real human beings”, “let’s give them names”, and that “facts are stubborn things”, the pro-deportation individual only cared about things like “it’s the law”, having “control” and a “workable” system, and a supposed “right” of a “country” to decide who can and cannot become its citizens. Here we see the collision between Eichmannism and humanity, almost at its purest: which matters, people or rules? “The law” in the hands of the Eichmannists is not there to protect basic liberties but to smash them. If one defends rules even when they harm people, one’s theory is inhuman). Rawls’s theory, with its naïve advocacy of “legitimacy”, provides an excuse for this kind of creeping violence by refusing to make it a case for taking a moral stand against the state. Clearly such “technicalities” are in fact part of the discourse of state action - its de facto “constitution” - and their very triviality is part of their superficial presentation. The Rawlsian idea of legitimacy permits such excuses to operate.

The pattern of creeping Eichmannism and the use of technical excuses is not an occasional problem; it is a persistent and growing problem, concealed because it is not given widespread coverage in the mainstream media and clearly not rectified by mechanisms of check and balance (e.g. the courts side with the cops, the media ignores such events, “Our Considered Convictions” do not take into account what they do not know and excuse the handful it knows of on spurious and illiberal grounds, etc.). (Rawls may not be aware of it, or else may be tacitly complicit in it). If one reads certain publications, one reads of statist abuses almost every day. SchNews has at least one instance of a “crap arrest” every week; most of these involve the use of technicalities as an excuse to suppress or harass protests and dissident movements of various kinds. To take a sample example, Resistance (August 2002) contains no fewer that three instances of creative use of technical rules and laws: a (ridiculous) jury decision that an American student was disrupting others’ education by wearing an anti-war T-shirt; Canadian protesters charged with “possessing explosives” and “endangering life” for owning gas masks, smoke bombs and shields; and British activists charged with “violent disorder” for occupying the offices of an Israeli corporation. In terms of the microphysics of power, such creative use of laws to suppress dissent is an absolutely crucial issue. Rawls’s position on “legitimacy” puts him on the side of the state in such struggles by preventing such slippage in meaning from being systematically challenged and resisted. It seems, indeed, impossible ever to constrain a state on a Rawlsian basis for what it does (as opposed to the rhetoric it uses). Jürgen Habermas criticises political theory for carrying on ‘as though one could ignore the disenchantment of law in social science’ (Between Facts and Norms 57). This is certainly a valid criticism in relation to Rawls.

Another problem is the empty idiocy of pure proceduralism which causes great evil by its bulldozer-like operation. Examples: a US man (?Leonel Ferreira) was executed despite decisive exonerating evidence because his original trial was procedurally not flawed. Another case is Charles Bronson, a prisoner who has long overstayed his original sentence because of his staunch resistance to the prison system. In one trial for such resistance, Bronson declared in court that the system itself was causing such action, i.e. that the prison system, far from “working”, was causing the very acts it was punishing; the judge conceded this, but still jailed him again.

Proceduralism takes the sting out of any radical potential one could derive from Rawls’s second principle. Rawls may oppose excessive wealth inequalities of certain kinds (e.g. those which interfere with political democracy), but it seems unlikely that his theory could lead to challenges to a government which adopts a structural model similar to that Rawls advocates. Governments in league with corporations frequently end up coming up with schemes such as Structural Adjustment Policies, PFI and privatisation. These measures are rarely for the benefit of the worst-off. However, the occasions where these measures have been prevented or reversed - one might refer, for instance, to Argentina, Ecuador and Bolivia (the Cochabamba uprising) - the methods used exceed Rawls’s “legitimate” structures. In practice, therefore, Rawls prohibits struggles for the social order he advocates; his advocacy of it is therefore largely empty. In practice, the poor are to starve in silence out of respect for order.

In practice, the idea of legitimacy is simply special pleading for the state. It involves consistent support for state power in almost all cases. (e.g. Blair’s reaction to the fuel blockades. Ordinary people deciding statist issues! That can’t be permitted!)

Another problem with proceduralism (including its IR application) is that it leads to a failure of solidarity with oppressed minorities. There is no transcendent “duty” or desire to resist oppression and to support the oppressed, because “duties” and desires have already been entrapped in an institutional structure. The duty to the state, as the representation in alterity of “others”, is a loss in terms of “duties” to actual others. The highly abstract justification for the state expresses itself in an empathy for very concrete agents, and empathy with statists which in turn blocks solidarity with others oppressed by the state.

Another problem is the contingency of interpretations and uses of rules. I have already discussed some blatant examples of Orwellian interpretations of constitutions in actual cases. I could also add the theoretical insights of Wittgenstein and Derrida into the extent to which an act of “interpretation”, “reiteration” or “enforcement” is in fact an act of creation, redefining the rule by decontesting it in a new circumstance which could not have been known by its author. (Rawls is a typical example of an author who seeks guarantees through linguistic fixity, i.e. the assumption that same=same. This logic of guarantee through rigid designators is used as an alternative to seeking voice). A lot depends, therefore on who is interpreting the rule. In particular, one cannot trust rules to guarantee rights, because those who make the rules are likely to use them to legitimate their own acts, even if a right is formally guaranteed. The idea that a constitution or state form could not degenerate or be hijacked or abused so long as it retains its constitutional exterior is naïve, especially since the distinction between proper use and catachresis is the state’s own. Not only can the state itself bend and reinterpret its own rules, but these are also open to creative interpretation by particular comprehensive doctrines. It is even possible to redefine an entire public discourse in such a way that it accords exactly with a comprehensive doctrine. This process can sometimes be carried out by shadowy secret associations such as the Broederbond, and maybe the Bilderberg Group, and is certainly often carried out by informal “old-boys” or “frat” networks in such a way as to identify it with the interests of a specific group (Laclau’s concept of hegemony). (For instance, an impermissible fascist or populist view would disguise itself as a “legitimate” concern with security and order, against the laxisme of existing liberties). A real example of proceduralism being abused to cover up bias occurred when lawyers attempted to mobilise a technical and clearly non-actual definition of racism during the Jonathan Woodgate trial. When black critics denounced this sophism in the press, courts attacked them and the papers which printed their remarks, even threatening to punish them, claiming they biased the possibility of a fair trial! Clearly such self-privileging by the courts is a form of insulation for prejudice and impositional discourse.

One problem with Rawls’s theory is that the acceptance of injustice it requires in many cases would require affect-blocking mechanisms which are incompatible with the development of a strong “sense of justice”. One has to be able to swallow one’s sense of offence or anger or outrage at injustice, and this capacity is in contradiction with the idea that citizens first of all wish to give justice to one another. Indeed, this requirement means that someone who conforms exactly to Rawls’s conception of the person would nevertheless not conform to his theory. It is also partly for this reason that “saints” and “heroes”, whose “sense of justice” is too sharp, are in practice excluded from the types of society Rawls advocates. Libidinally, Rawls’s theory encourages a herd morality, a situation of “just” submission to “unjust” masters, even in relation to Rawls’s own version of “justice”. (One should again recall Bergmann’s work: instead of assuming people are too prone to obey, Rawls assumes we are not prone enough, but rather, are too prone to resist “unjustly” - and so prone to this that we must learn to submit even to “unjust” power!).

Rawls arrives at this conclusion because he works backwards. Instead of starting from the sphere of the actual, e.g. from the effects of laws and so-called institutions, he starts from an assumption that the primary level of analysis is the system, and that a fully operative system (as opposed both to a non-systematised set of relations and to a system which exists but which is checked and balanced by extensive resistance when it operates unjustly) is a good prior to all else. Therefore, one finds the most “just” system possible (or conceivable as possible from a framework blinkered by the present), and one then accepts whatever this system delivers. In concrete terms, it is better that people react easily - perhaps even “too easily” - to oppressive acts by states and powerful groups, because this (i.e. fear of rebellion and revolution) is the only effective way to constrain a structurally more powerful group. (For instance, the absence of an effective right to resist unjust arrests leads to a situation where state agents have an absolute right, in actual terms, to make unjust arrests, impeded only by their own conscience and that of their fellow statists). Substantial intolerance even of minor injustices may be necessary to check the escalating tendencies of bigoted majorities and/or entrenched elites who manipulate “institutions” to their own advantage. Without such intolerance of “injustice”, the state is not “bound” by anything; one could end up with a gradual transition to fascism or some new horror, without a point of resistance ever arising.

Rawls seems to be justifying a passive rather than an active form of political action. As E.A. Goerner puts it, ‘Political Liberalism is political philosophy for subjects rather than citizens’; it simply assumes the necessity of drastic power inequalities (Rawls’s Apolitical Political Turn 717). As Farrell argues, Rawls never explains why the parties in the original position should accept repression as extensive as he permits. He only suggests why they might sometimes accept a principle of majority rule. He does not, for instance, explain why an iron principle against disobedience except in special cases is taken to be preferable to a mere caution against expressing potentially unjust claims too readily (Dealing with Injustice… 190-1, 206). Indeed, his argument implicitly depends on the view that anything short of total obedience will make a just system impossible, a view which is untenable (201). Farrell’s critique is weakened, however, by his implicit acceptance of Rawls’s key premise: that the risk of individuals acting unjustly due to misperception and bias is greater than the risk that states, if given a free hand to any extent, will perpetuate injustice when they are not resisted, either because of misperception and bias or because of internal power-maximising dynamics. Furthermore, Farrell suggests that the core psychological claim Rawls’s account implies – the claim that people are prone to rebel excessively often – is subject to empirical demonstration. He states that there is little evidence on the matter, although he cites Milgram’s classic obedience study as evidence against (Dealing with Injustice… 201, 209). In fact, there is a great deal of additional evidence that people are excessively conformist and insufficiently rebellious, not only from other obedience and conformity studies such as those by Zimbardo and Asch, but also from research on everyday language-use such as the studies cited by Mueller, and from the work of authors in the psychoanalytic tradition such as Reich. Discussing civil disobedience, Roberto Alejandro suggests that Rawls’s approach is likely to lead to a passive citizenry who would rather silence their criticisms than risk instability (What is Political… 21). This seems accurate.

It is interesting to ask at what point Rawls might advocate resistance to the rise of the Nazis in (liberal) Weimar Germany. It certainly would not seem permissible to resist before they took power, as this would further destabilise the liberal order. Nor could they be resisted when they were elected, as they were elected by a proper procedure which falls within liberal legitimacy. Nor could they be resisted for passing early laws against certain social groups and movements. These particular causes would probably not be exceptional enough to justify resistance. Indeed, they could only be resisted when it became clear that they intended to remain in power as a dictatorship, and/or when it became clear that they intended to carry out exterminatory violence. Of course, by the time one could realise these things, the Nazis would already have set up the power-apparatuses making a regime of terror possible; in other words, it would to all intents and purposes be too late. This should be kept in mind given the relevance of liberal ideas of “legitimacy” to issues surrounding anti-fascist direct action and self-defence today (e.g. in the context of the Welling demonstration and the Bradford and Oldham uprisings).

The long string of exceptions Rawls permits, and the concern for “order” which has such a central role in his theory, means that, in practice, his theory is a license for “liberal” states to ride roughshod over people. He is interested in “deterring” individuals, but does not seem very interested in deterring the state.

RAWLS ON RESISTANCE
“That only a few, under any circumstances, protest against the injustice of long-established laws and
customs, does not disprove the fact of the oppressions, while the satisfaction of the many, if real, only proves their apathy and deeper degradation” - Elizabeth Cady Stanton, American suffragette, cited Heretic’s Handbook p. 15

Rawls’s explicit discussions of civil disobedience and conscientious refusal offer a clear demonstration of the statist bias in his theory, even though in some contexts, such as Germany, these discussions have been welcomed as a defence of the right to protest (e.g. by the leftist author Peter Niesen; see Jan-Werner Müller, Rawls in Germany, 177). In stark contrast to the string of excuses he offers for the state (which is to be obeyed even when it falls short of justice in a whole string of ways), he seems determined to set the longest possible string of hurdles in the way of legitimate resistance (which is not to be engaged in even when it is in a just cause, unless a string of hurdles unrelated to justice are jumped). These restrictions, applied even to the most moderate forms of resistance, suggest an attempt to avoid a Ya Basta! point ever emerging. Indeed, in contrast to his normalisation of state coercion as necessary even in a completely just society, Rawls treats even the most moderate types of resistance as the gravest actions. ‘Since civil disobedience is a last resort, we should be sure that it is necessary’ (TJ 327). It is ‘not a normal political action’ because it is only just within fidelity to law, and it should be a ‘rather desperate act’ and a ‘last resort’ (CW 183). Rawls clearly does not want to see movements of direct action replacing the state as the focal point of politics; he wishes to ensure that the general model of overarching power is not altered by the small amount of resistance he permits. Therefore, civil disobedience is treated as a suspension of normal affairs in which a duty to obey the law pertains: civil disobedience is morally correct ‘[a]lthough’ it is illegal (TJ 337), and it involves overwhelming reasons (usually of liberty) to override the duty to obey the law (TJ 319). As Robert Amdur puts it, Rawls’s concern with stability ensures he ‘erects a strong presumption in favor of obedience’ (Rawls’s Theory of Justice 451).

One should recall that, as an issue of non-compliance (by an unjust state), resistance is an issue of non-ideal theory and therefore secondary within Rawls’s ontology (TJ 336). The forms of resistance Rawls condones in liberal democracies are more-or-less limited to civil disobedience and conscientious refusal (see above, although he sometimes says that the failure of civil disobedience means that forceful resistance can be considered - TJ 322 - and that he does not mean to imply it is the only legitimate tactic in a democracy - TJ 320). Civil disobedience is limited to acts where the resisting group is trying to persuade the majority (Rawls assumes the oppressor group is always a majority, not an unaccountable elite; contrast especially the anti-Poll Tax uprising and anti-IMF protests) that ‘the principles of social cooperation among free and equal men are not being respected’. It is limited to acts which are ‘public, nonviolent, conscientious’ yet illegal, and which ‘reasonably’ fall short of invoking extreme penalties (TJ 320). (While “reasonable” persons are supposed not to use civil disobedience in ways which invoke extreme penalties, opting for lesser disobedience instead, it is not clear what such people are to do if the state escalated its repression). It must not be motivated by one’s own concerns and must appeal instead to the public political conception underlying the political order; also, ‘it goes without saying that civil disobedience cannot be grounded solely on group or self-interest’. Its basic role is to inform ‘the majority’ that it is seen as unjust, giving it the choice of whether it wishes to continue to be seen in this way (i.e. it is a way of asking nicely). It is to be ‘done in public’, ‘not covert or secretive’, and is to be nonviolent so as to maintain the ‘mode of address’ of asking nicely, ‘not from the abhorrence of the use of force in principle’ (TJ 321). Its mode of operation is that it convinces the majority by appealing to its sense of justice. Because of this sense, the majority are unwilling (or ‘cannot bring itself’) to use force to suppress the resisters, and choose to give way to them instead (CW 187, TJ 339). It is a way of giving ‘fair notice’ that in ‘one’s sincere and considered opinion’ the terms of free cooperation are being violated, and is an attempt to induce empathy in others so they recognise that one cannot be expected to acquiesce in current injustices forever (TJ 335-6).

It is to embody ‘fidelity to law’, including a ‘willingness to accept the legal consequences of one’s conduct’ (NB mystified terminology; it means not resisting or evading punishment) even while rejecting these consequences ethically. This irrational submissiveness to something one sees as wrong is a result of Rawls’s distrust of individuals. Fidelity to law is supposed to show that ‘the act is indeed politically conscientious and sincere’ and that it is ‘intended to address the public’s sense of justice’. This is because the public are assumed (NB the switch from “ought” to “is” midway through Rawls’s discussion) to be sceptical of any such claim: ‘it is not easy to convince another that one’s acts are conscientious, or even to be sure of this before oneself’ (TJ 321; c.f. CW 182 where Rawls states the role of fidelity to law as proving one’s sincerity). Fidelity to law is the ‘price’ of others’ trust, ‘a bond given to make good one’s sincerity’ (CW 182). (c.f. the later remark that ‘an injured minority is tempted to believe its claims as strong as those of any other’, so it is ‘wise’ to believe this even if it is not true - TJ 329). One might ask why this is so. Perhaps it is a result of the petty-mindedness underlying Rawls’s concept of “reciprocity”? Someone who is prepared to trust the goodwill of a state even when it commits injustices, yet who is sceptical of others’ claims to be conscientious and who demands a gesture of sacrifice to the state to prove sincerity, can barely be termed “rational” and is certainly guilty of a pro-state bias on both sides of the comparison. It is still less clear how one can be uncertain of the conscientiousness of one’s resistance to oppression. (For how long would a Palestinian really maintain doubts about whether the Israeli occupation is just? - c.f. Rawls’s case of the slave who is supposed to stop and consider the “formally correct” appeal to justice as fairness by the slave-owner). It is the inactuality of Rawls’s theory which constructs this problem of untrustworthiness, by constructing individuals as inherently untrustworthy (see section on reciprocity). It is also unclear why acceptance of punishment proves sincerity. One is dealing with what amounts to a form of masochism, a preparedness not merely to take moral action but to suffer as a result of such action even when such suffering is avoidable. It seems more likely that one shows greater conviction if one shows that one finds any enforcement of the resisted law to be utterly abhorrent, something one can only show by refusing to hold back in one’s resistance to it. If anything, submission to punishment shows a lack of conviction in one’s justice – a sense that one is uncertain that one’s cause is really serious enough to outweigh the state’s claim to obedience. Its function in actual discourse is probably in fact to reassure conformists that the resisters in question are not challenging the function of the master-signifier, i.e. that their demand is not held with great enough conviction to shatter the status quo. It is precisely this lack of conviction which makes the demand seem meetable – but it does not show that emancipation from oppression is compatible with a liberal order.

There are a set of ‘reasonable conditions’ which determine when civil disobedience (rather than passive submission and use of ‘the political process’, i.e. conformism) is justified. It therefore has a fixed ‘place’ (though he denies they are necessary in every case: ‘no doubt there will be situations when they do not hold’; since they are restrictions, however, this seems to be an alibi, and would only be usable in extraordinary cases). There must be major and clear (CW 183), severe and blatant injustices, usually applied to first-principle freedoms and operating to ‘obstruct the path to removing other injustices’. These injustices must be visible without any ‘informed examination of institutional effects’. They should not cover cases where (in Rawls’s judgement) it is hard to know or to show that one acts in just faith, for instance, taxation. In any case, Rawls claims, such injustices ‘will not get out of hand’ in a democracy, even if they are ‘significant and persistent’ (TJ 326-7). Decisions such as tax are based on complex calculations and so should not be protested by civil disobedience (i.e. the dictatorship of the technocrats must not be challenged by the stupid masses?). Indeed, Rawls wishes to keep civil disobedience out of the economy in general (CW 184). (The anti-Poll Tax movement and the Cochabamba uprising are clear-cut cases of resistance which proves the contrary. Tax and spending policies can impact on basic needs, which Rawls elsewhere terms of human right. Rawls has also not defined the difference between ‘out of hand’ and ‘significant and persistent’; all else equal, the former would seem to be a metaphorical rendition of the latter). Finally, ‘the normal appeals to the political majority’, including political parties, protests and the law, must have been tried ‘in good faith’ and have failed, at least to an extent to make future attempts seem futile (except when the breaches of liberty are especially extreme). It is a ‘last resort’ and should not be used too soon (TJ 327-8). Furthermore, the injustice it resists must be ‘more or less deliberate’ (TJ 329; an example of an excluded case here would be racially-motivated stop-and-search policies, which may or may not be due to conscious racism), and the form of resistance used must avoid injury to third parties (TJ 330).

Dissenters should also be willing to affirm the overall set of relations which would occur if all people subjected to the same degree of injustice as themselves were to use civil disobedience (CW 184-5). One has a right to use civil disobedience ‘provided that the general disposition to protest similarly in similar cases would have acceptable consequences’ (CW 186). (This way of judging resistance may seem valid, but one should consider that the number of people or groups resisting affects the tactics which might be used. Those who are alone in resisting in a context where others have due cause to resist but fail to do so may use methods which they would not endorse if these were used by large numbers, and which they themselves would drop should more people begin resisting. For instance, a small workers’ group may improve its working conditions through sabotage, even though its preference should all workers similarly located be ready to resist would not be sabotage - in this case, sabotage would lead to the breakdown of factories, which the resisters might not want. They might prefer mass occupations and the overthrow of capitalist political and economic power in the case of mass resistance. However, this does not seem very relevant to the question of whether they are justified in using sabotage in the context they are in fact in).

Even after all these restrictions are piled up, Rawls adds more. Since civil disobedience is supposed to be a ‘stabilizing device’ (CW 185; c.f. TJ 336), ‘special constraint’ is needed if it would harm the constitution (CW 185), and when all the prior definitional and conditional hurdles are jumped, Rawls still demands that ‘the natural duty of justice may require a certain restraint’. Generalised civil disobedience could cause ‘serious disorder’ sufficient to undermine a just constitution. ‘I assume here that there is a limit to the extent to which civil disobedience can be engaged in without leading to a breakdown in the respect for law and the constitution, thereby setting in motion consequences unfortunate for all’. There are also limits to the extent to which the public can be expected to respond to such methods, reducing its effectiveness beyond a certain point and becoming distorted by its disconnection from appeals to the majority (Rawls treats this as if it were an objective concern when, again, it is a subjective one). (TJ 328). Civil disobedience should be used ‘with due restraint and sound judgment’ (TJ 336). In other words, Rawls sees the extension of resistance to other forms to be its distortion into something bad. There are cases where ‘many equally strong claims… if taken together exceed what can be granted’, with “what can be granted” determined by whether resistance would cause ‘lasting injury to the just constitution’ to which all submit (TJ 329). He has a wish to avoid the ‘danger of anarchy’ which might be brought about by resistance, though ultimately he blames ‘the danger of divisive strife’ on those who give others legitimate reasons to resist (TJ 341-2). Furthermore, Rawls permits “the public” to limit their tolerance to small quantities of civil disobedience, and turns this into a criterion for engaging in it. Therefore, protest groups have a duty ‘to regulate the overall level of dissent’ so ‘the limits on the degree of civil disobedience are not exceeded’. This is to be carried out by a ‘perceptive leadership’ (TJ 329), presumably using measures of internal repression. Rawls’s attitude dovetails with the Kitsonist control strategy and the tendency of rightists to blame “too much” (rather than “too little”) resistance for failure. It provides an excuse for powerful groups to immunise themselves from the emotional impact of protests and to blame protesters when they exceed limits set by these groups. It also attempts to ensure that resistance does not expand by a process of drift. The role of civil disobedience is to ‘maintain and strengthen just institutions’ by inhibiting or correcting ‘departures from justice’ (TJ 336). ‘A general disposition to engage in justified civil disobedience introduces stability into a well-ordered [or nearly just] society’ (TJ 336), and it, along with conscientious refusal, are ‘necessary and reasonable ways to correct democratically enacted policies’ without harming the system (TJ 261). One might suspect that it is this conservative role which leads to the restrictions Rawls places around civil disobedience. (He also seems to assume - see TJ 330-1 - that the resisting group must have a duty-based ethical model).

One should note what this means for Rawls’s theory of the state. A state may be just, and yet still generate sufficient legitimate grievances, meeting all the criteria listed above (e.g. they are ‘out of hand’, involve blatant and serious injustice, effect basic freedoms guaranteed under the first principle of justice and cannot be rectified through political or legal processes), that their culmination in civil disobedience would lead to the collapse of the state. A state may oppress simultaneously a number of minorities in such a way as to deny them first principle liberties and rights, in a way which is serious and blatant, which cannot be rectified and which passes a number of other hurdles, and yet still be sufficiently just that it has a right to be protected from breakdown due to mass resistance even of the most moderate form! And the collapse of this state can be viewed as undesirable for everyone, despite its pervasively oppressive operation. One should also note that Rawls’s term “stabilizing device” shows that he views conscientious objection as a way to modify, not to challenge, state power. It does not involve any intent to transfer power from the state to ordinary people, or from the political sphere into everyday life. (It could not, for instance, turn resisters into representatives of freedom and statists into representatives of violence; the state-individual binary is constructed mythically and so cannot be inverted, even though the privileges claimed by state agents involve the use of force against peaceful dissent. Nor is it supposed to be a way to render obedience conditional, although it clearly has this effect if successful. It is certainly not supposed to negate the “readerly” attitude one is supposed to take to the principles of justice).

How does Rawls excuse this blatant statism? As so often, he relies on misrepresenting the state as “others’ rights”. Hence, ‘the exercise of the right to dissent, like the exercise of rights generally, is sometimes limited by others having the very same right. Everyone’s exercising this right would have deleterious consequences for all, and some equitable plan is called for’ (TJ 329). Again, this depends on a Laclauian hegemonic gesture: the confusion of a specific state with universality, even when it oppresses some.

Even after all this, Rawls is not finished, because there is still ‘the question of whether it is prudent to exercise this right’. Such questions of prudence arise for all Rawlsian agents. (Even a liberal state must consider whether it is prudent, for instance, to put justice ahead of the views of an unjust majority, though one could also say that the Rawlsian state can suspend justice for tactical reasons - e.g. to suppress a rebellious sect). However, they are usually strictly secondary. Here, they become an issue of principle: imprudent conscientious objection is not simply ill-advised, it is wrong (because it does not perform the role of addressing the majority’s sense of justice). This gives the “majority” (or state) another mode of blackmail, because it is imprudent to use conscientious objection if it ‘only serves to provoke the harsh retaliation of the majority’. ‘[I]t is important that the action be properly designed to make an effective appeal to the wider community’ (TJ 330). This basically means that only successful civil disobedience can be justified. Rawls further adds (unsurprisingly) that it is ‘easy to think’ of civil disobedience which he would oppose on practical grounds (CW 186). (It is not clear, then, how one should respond to an apathetic majority and a state ever more willing to steamroller over civil disobedience if it can). Paris notes that the use of the word “provoke” seems to blame protesters for the violence used against them (After Rawls 688). One could in this context compare Rawls’s claims to the even more explicit displacement performed by Brian Barry, who transmutes the fact that liberal states tend to use illiberal means to persecute their enemies into a claim that these enemies necessarily threaten liberal democracy by forcing it to use such means (John Rawls and the Search for Stability 904).

Strangely given that he assumes the “majority” to rule throughout, he later states that he only endorses the wisdom of civil disobedience in cases where injustice is perpetrated by a clearly identifiable group of oppressors who can be ‘isolated from the wider community’ or persuaded by majority opinion. Otherwise, disobedience will drive the majority ‘to more repressive measures’ (TJ 339). Furthermore, it is only supposed to be used when the majority has a sense of justice and an overlapping consensus to which such disobedience can appeal (TJ 339-40).

One can list, therefore, at least 19 hurdles a movement must pass before conscientious objection becomes legitimate (in addition to its needing to qualify under the two principles of justice as a just cause): 1. aim to persuade majority; 2. appeal to public political conception; 3. done in public and not secretive or covert; 4. non-violent; 5. does not involve acts which the state might punish severely; 6. submission to punitive apparatuses (“fidelity to law”); 7. existence of severe and blatant injustices; 8. visibility of these injustices; 9. fact that these injustices are more or less deliberate; 10. the case is one where it is easy to know and to show that one acts in good faith - usually not involving the economy; 11. “normal” appeals have failed (this is really three criteria, since it includes the failure of protests, parliamentary parties and the legal process); 12. no harm is done to third parties by the disobedient actions; 13. the actions do not exceed the public threshold for civil disobedience; 14. the actions do not provoke “harsh retaliation”; 15. the actions do not cause (alone or with other resisters) “serious disorder” or “injury to the just constitution”, even in the form of a loss of faith in the law; 16. resisters would affirm the consequences if all who were treated unjustly to the same degree engaged in the same kind of action; 17. the actions must be “properly designed”; 18. oppressors are an identifiable group; 19. society has a sense of justice and overlapping consensus. Though there may be exceptional cases where some of these criteria can be suspended, it appears to be normally necessary for any “just” resistance to jump all of these hurdles before one can even consider whether it is just.

One should note how few actual resistance movements cross these strict hurdles, and how easily a movement fighting for a fully just cause could go too far from Rawls to support it. Indeed, Brian Barry suggests that Rawls only allows methods which are equivalent to self-immolation, adding that the poor, if they are to improve their position, would have to take action which is more militant and more damaging to capitalist property than Rawls allows (The Liberal Theory of Justice 152-3). Joel Feinberg has also noted that Rawls’s commitment to obedience is ‘not easily overbalanced’, and that issues such as pollution, road building and the prohibition of marijuana would seem to be inadequate reasons even for civil disobedience (in Daniels ed. 121). In practice, the insider agenda of “our considered judgements” reflects disproportionately the concerns of those who have the least to protest about. On the other hand, those who are attacked in very immediate ways are unlikely to be as concerned about the niceties of political justification as those with more space for unemotional reflection. Rawls therefore sets up standards for supporting protest and resistance movements which are extremely harsh, and render it difficult for even the most just causes to gain his support (and the support of those who share his misanthropic distrust of resisters). Again, this should be contrasted with his indulgence towards statist injustice, even when it goes against his own principles (e.g. the state might be submitting to necessities in the circumstances or responding to an unjust group, the injustice might be “unavoidable” due to necessarily imperfect procedures, it might be small enough to be “tolerable”, it might be necessary to achieve greater liberty later, it might not be an injustice at all because it “regulates” rather than “restricting” liberties, etc.). One might compare a few cases: for instance, civil disobedience is never to harm the innocent, whereas the state may do so for “lesser evil” reasons and when it is “necessary” (e.g. “miscarriages of justice”). The theorist, typically located outside the groups which might resist, is to sit in judgement over whether their actions are sufficiently close to a rigidly constrained model to be legitimate, and further, is to do this from a standpoint of “universality” loaded against resistance. Furthermore, if one considers the two cases in the light of the question of available language-games, it is clear that Rawls enormously restricts the possible space for language-games of resistance to be deemed legitimate in the terms of his theory. On the other hand, he creates a lot of space, both for states (including “unjust” states) to engage in legitimated language-use to defend their activities, and for others to engage in legitimated language-use to denounce resistance.

While Rawls permits civil disobedience, it should be noted that he does not grant it legal immunity. The reasons for this are purely pragmatic and order-based, not matters of justice (i.e. Rawls permits what amounts to unjust punishment for order-based reasons, again showing the primacy of order over justice in his theory). Such exemptions would, Rawls claims, make the judicial system ‘unstable’ (TJ 322, CW 182) (i.e. he puts the right to be free from unjust punishment behind the “need” for a stable state - presumably meaning one which operates in a dogmatic and unresponsive way; one should also note that he simply asserts and does not give evidence for this). He does, however, permit immunity in some cases of conscientious refusal (TJ 325), on what seem to be ad hoc grounds connected to the peculiar hybrid status of pacifism as an ideology (according to Rawls’s reading of it). There is also a passage where he advocates that sanctions against civil disobedience be suspended or reduced when it is motivated by the society’s conception of justice (TJ 339). (It is not clear why permitting conscientious refusal would not render the system “unstable” if permitting civil disobedience would so render it. It seems “necessity” follows Rawls’s preferences, not the other way around).

Civil disobedience is supposed to have something of a role in maintaining dignity: Submission to injustice breeds contempt and confirms the prejudices which fuel injustice, whereas resistance, even when it ‘cuts the ties of community’, tends to secure liberties (TJ 337).

Conscientious refusal is a slightly different issue, because Rawls does not consider it to be a public political gesture. This is because ‘it does not take place in the public forum’ (TJ 333). (Rawls uses a naïve public/private dichotomy which is unable to deal with issues as diverse as corporate power, gender inequality and the infrapolitics of everyday resistance). The main case he considers is specific to refusal to serve in a war. Because Rawls thinks there is a ‘tendency of men to defer to their government’s decision to wage war’ and that there should be more of ‘a general willingness to resist the state’s claims’ (TJ 335), he supports a right to use such methods. While I welcome this corner of resistance which finds its way into Rawls’s theory, it should be noted that it is none too radical: it involves something which is an established right in liberal democracies. It is also prone to inconsistency, in two ways. Firstly, while Rawls allows conscientious refusal of military conscription, he presumably opposes similar refusal in the many other cases of state-imposed “duties”. Secondly, he is implicitly contradicting the arguments about free-rider egoism, the risk of general disorder and the necessity of simple and freestanding procedures which everywhere else render him unwilling to listen to the claims of actual people and groups. While he might claim empirically that the right to conscientious refusal does not imply such consequences, he cannot claim it theoretically, and if it holds empirically, this is a problem for his theoretical assumptions.

There are also occasions where it is legitimate to mount a militant challenge to an existing social and legal order on the basis of its substantive negation (TJ 322-3). ‘[T]o employ the coercive apparatus of the state in order to maintain manifestly unjust institutions is itself a form of illegitimate force that men in due course have a right to resist’ (TJ 342). However, he seems to assume that this form of resistance is largely irrelevant in the societies in which he is most interested. He does not create any space for state power to be limited by resistance beyond the very moderate forms he permits. He also does not look into the issue of ‘conscientious evasion’ (TJ 323-4), a category which seems to cover most of the Scottian resistances. Resistance beyond the cases he discusses seems to relate to non-liberal societies. Thus, ‘militant action and resistance, as a tactic for transforming or even overturning an unjust and corrupt system’ is justified; ‘there is no difficulty in this case’ (TJ 319). Also, rapid civil disobedience is justified, and ‘even civil disobedience might be much too mild’, in cases where ‘the majority [has] already convinced itself of wantonly unjust and overtly hostile aims’ such as banning the religion of a ‘weak and defenceless minority’ (TJ 328). Rebellion, i.e. ‘suitable forms of noncompliance’ (including some by governments) are also permitted when ‘the collective judgment is sufficiently unjust’ - for instance, if it is likely to cause ‘irreversible damages’ (TJ 261). Beyond a certain point, resistance means that one can no longer refer to an overlapping consensus, but only to a society divided into distinct parts (TJ 340). This is a situation Rawls seems to wish to avoid.

Thus, Rawls’s theory is in effect a transformist force, blunting the edge of resistance so as to make it safe for an ostensibly liberal status quo. Paris accuses Rawlsian liberalism of ‘disciplining… the radical potential of the civil rights movement’ (After Rawls 681; c.f. 684-5). Because for Rawls ‘the liberty to protest depends on the “security of public order”’ (685), his theory of civil disobedience amounts to a ‘conservative and disciplinary commitment to a certain kind of public order’ (689), a commitment which renders liberalism’s ability to criticise the status quo ‘tenuous at best’ (693). Similarly, Grundman and Mantziaris suggest that access to the category of legitimate civil disobedience depends on one’s using a liberal rhetoric. If one does not, civil disobedience transmutes into fundamentalist intolerance (Fundamentalist Intolerance… 579-80). Baynes criticises Rawls for not incorporating a need for civil-societal organisations to curb the power of the state (The Normative Grounds of Social Criticism 162-3). Ronald Bleiker suggests that Rawls justifies civil disobedience only on liberal terms ‘bound to entrench the status quo’ and giving only the ‘appearance of radical dissent’ (Rawls and the Limits… 38). ‘In being tolerated only as long as the liberal constitutional framework is not disputed, civil disobedience refuses to question the values of its own political foundations’ and becomes a ‘narrowing down of dissent’ (39). It therefore ‘incarnates the modern obsession for control, the desire for order, for certainty, and for essences that provide a stable background against which moral norms can be established and idiosyncrasies of life can be assessed’, a secular replacement for God (39). Andrew R. Murphy suggests that ‘[t]here is little room for principled resistance, or even symbolic protest, in Rawlsian theory’, and that Rawls is inclined to treat all dissent as only a step short of civil war (Rawls and a Shrinking… 263). Jennifer Welchman suggests that Rawls’s framework cannot encompass many forms of protest and resistance, including those of the ecological movement (Is Ecosabotage… 98-9). Rather, it is influenced by an exclusive concern for a limited series of examples familiar in an American academic context (100, 102). The tendency to represent disobedience as speech narrows the field of protest actions by ruling out covert actions and anything which does not involve an appeal to justice or human welfare (103-4). Indeed, she suggests civil disobedience is discussed in liberalism mainly because of its challenge for theories of obligation, and that philosophers have remained insufficiently sensitive to its social origins and the oppression it resists (101). Furthermore, Benjamin Brarber states that Rawls’s insistence that just resistance must not overburden the social system is ‘a good deal less than just’ (in Daniels ed., 312).

Andrew Sabl mounts a defence of Rawls’s theory of civil disobedience and, in doing so, demonstrates the weakness of this position. His starting-point is an immense historical ignorance. For instance, he claims that there was no vindictive state repression against the anti-Vietnam War movement (Looking Forward to Justice 309). His conclusion is basically that a ruling group which is internally just – no matter how badly it treats outsiders – should only have to face civil disobedience and not revolution, because such a group is owed non-violence and a future place in social cooperation because it is already just on a psychological level (314-16). This conclusion, which is presented as an extra-Rawlsian adaptation of Rawls, arises in the context of a definition of civil disobedience so narrow that general strikes, the Czech “velvet revolution” and even a strategy of “filling the jails” do not count (307). Since he only permits disobedience as persuasion, his claim to endorse the Madisonian idea that only power can check power (324-5) is misleading. He defends his view on the basis of a ‘forward-looking moral duty’ (318). However, such a prefigurative perspective is inconsistent with his endorsement of state power. In giving the rulers the right to what he portrays as a benefit of the doubt, he imposes on protesters onerous burdens, such as a duty to submit to punishment (317-18), which is an ‘entry fee’ needed to deter ‘frivolous’ resistance (323). This is supposedly necessary to show one’s fidelity to the possibility of future cooperation (318), although the basis for this derivation is unclear: why should one show one’s future fidelity to just institutions by submitting to unjust ones in the present? Surely one would show it better by refusing to comply with all unjust institutions? The Rawlsian case for the state relies on a hostility to free-riding, yet Sabl’s and Rawls’s views allow an unjust state to free-ride on protesters’ sense of justice and prefigurative sensibilities by imposing punishments for acts mandated by justice. Worse still, Sabl mystifies law as ‘the terms under which people agree to cooperate’ (319), as if agreement at the end of a truncheon has the quality of an imaginary regime of consent. His theory is supposed to be based on an ‘inclusive’ overlapping consensus, but this turns out only to include those who share one or another of the author’s excuses for the state, and who share his rejection of intensities of desire in favour of a “common” language (320, 324). He goes along with Rawls’s view that people tend to ‘mistake the inevitable pains and disappointments of common life for injustices warranting disobedience’ (328), a position which naturalises some oppressive forms as “inevitable” to excuse the suppression of resistance. Furthermore, the state is to be permitted to smash ‘frivolous’, ‘trivial’ and ‘immature’ demands, demands ‘whose acceptance would lead to anarchy’ (323), ‘individual lunacy’ and other individual actions (329), and movements which fail to meet his rigid Lakatosian requirement that only those with a (system-preserving) alternative may protest (329). (This last point prioritises common sense over good sense; for instance, “nimbyism” often expresses in diffuse form a hostility to the bulldozing of localities and particularities by overarching institutions, and there is no reason why a commitment to overarching projects should trump such concerns, even when their own logic is badly developed). Such tolerance for repression tends to negate the very reluctance which, it is to be recalled, is the means whereby the “sense of justice” renders civil disobedience effective in the first place. In fact, the introduction of the option of punishment renders nonexistent the direct choice which makes disobedience effective: the elite’s choice to give way or else resort to ‘massacre or extreme repression’ (326). Rather, the choice becomes a choice to give way, or to smash disobedience by labelling it as frivolous or some such, an option which may stop short of “extreme” and genocidal methods. Thus, the statist biases of liberalism tend to destroy the means of effectiveness of its own preferred methods of resistance. It is because Sabl fears individuals’ frivolousness more than he fears the state that he demands submission to punishment. However, he is entirely wrong that the fear of punishment will only deter ‘frivolous’ actions and will be non-discriminatory (323), as if, for instance, prison regimes are equally oppressive towards those with authoritarian personalities and those who impulsively disobey others.

A serious examination of civil disobedience and resistance would have to take account of resistance structured around international issues, as well as resistance directed against bodies such as corporations. Indeed, a high proportion of direct action today is of these kinds, and is not directly intended to change state policy. I suspect that Rawls would see illegal resistance to corporations as a form of “interference”, but there is no logical reason why it should be any more impermissible than any other action to prevent imminent harmful actions by an agent. In other words, such a conclusion is not necessarily the result of Rawls’s theory. The international case is more clear, because Rawls seems to disconnect the international level from individuals by portraying it as a system of “peoples”. This would seem to imply that individuals cannot have obligations at an international level (only a “people” can have such obligations), and therefore, that concerns about international issues cannot override the duty to obey the law. Rawls’s views on civil disobedience arise in early works, before the closing of the critical distance from the present in Political Liberalism. It is not clear whether this change has any impact on his views; it seems to imply that he now views western societies as just rather than nearly just, which would leave less room for any kind of resistance.

The reason Rawls permits some kinds of resistance seems to be because he supports (retrospectively) certain historical movements. Indeed, he seems to bend his theory to fit specific cases he supports and opposes, in a way which goes against his broader method. One should note in this regard his insistence that public discourse need not actually use public reason to qualify as according with it. A movement such as Martin Luther King’s and the anti-slavery campaigns, which rely overtly on Christian themes, could nevertheless count as being in ‘accord with public reason’ because one can retrospectively apply it to justify them (PL 250). This seems to be an attempt to avoid condemning movements which derive from comprehensive doctrines but which Rawls wishes to avoid condemning. (In one of these cases, i.e. pacifists who refuse to serve in armies, an attempt to avoid taking an unusually repressive position forces Rawls to notice phenomena he elsewhere evades, such as the problem of excessive submissiveness, the problem that states are too ready to wage war and the need to bend rules if one is to include numerous doctrines in an overlapping consensus).

NOTE ON STATIST ABUSE

Rawls generally refuses to recognise any danger in terms of abuses committed by liberal states. However, it is sometimes necessary for him to suspend his statism in order to wriggle out of various nets in which he has caught himself. The most obvious case involves his opposition to conscripting or jailing pacifists, in the context of which he refers to ‘the tendency of nations [sic], particularly great powers, to engage in war unjustifiably and to set in motion the apparatus of the state to suppress dissent’ (TJ 325). Too right it does! c.f. Fairford repression during the Iraq war. However, a right to conscientious objection hardly seems sufficient to prevent such widespread tendencies. (The very existence of states tends to lead to abuses, and there is no state in existence or in history where impunity of state agents does not operate to some degree).

If, as Larmore hints, the case for (e.g.) religious tolerance (and other liberal rights) rests on an assessment of relative danger, so that a state is more of a potential threat to one’s religious liberty than are rival religions, this case easily expands into something which threatens the state. A strong state, including one which acts as a “freestanding” bulldozer, is more dangerous in many ways than almost any other kind of association. (“Quarrelling between individuals causes fights, which can be quite nasty. Between states, it causes wars, which are always catastrophic” - Wildcat ABC of Bosses. c.f. Barclay anthropology article).

NOTE ON PROMISES

Rawls normally takes the position that promises are binding. However, even here, there is an exception: a promise to an unjust person is not necessarily binding (see TJ 303-4). One should note that this exception does not appear to cover cases where there is a de facto pressure to make a promise, but that it may include cases where an individual is simply deemed to be acting “unreasonably”. Rawls resists the view that his position on promises involves selective reading of the institution of promising. (Contrast his very literal reading of the obviously parodic/Scottian position taken by Spanish peasants that one only has a duty to obey laws if they are enforceable. Rawls hates selective reading; institutions are supposed to be deadly serious - cf. Marcuse, Essay on Liberation).

NOTE ON JUST WAR

The concept of “just war” is rather more limited than most of the others in Rawls’s work. A just war must express a defence of the principles of justice, and there are limits both on when a war can be just and on the methods which can be used in a just war (TJ 332-3). Nevertheless, Rawls permits the use of the idea of “just war” to allow extensive interventions against so-called “outlaw states”. Again, the limits he places on “just war” are very limited. Furthermore, he seems to allow more room for a possibility of war with “primitive” than with “advanced” societies (LN 93-4), suggesting a colonial subtext.

RAWLS AND SOCIALISM

Rawls famously declares his theory to be neutral between capitalism and socialism. However, only a certain kind of socialism could fit his model of the state. Not only would it have to be “liberal” in terms of the liberties of the first principle; it would also have to fit the typical profile of a liberal state. For instance, it would have to involve a prior and overarching system of rules. “Socialism” would have to, therefore, mean some kind of centralised state control, with the basic structure of the capitalist organisation of work left intact.

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