Seth Resler and Joshua Cohen, Boston Review, November 17, 2011.

Seth Resler: John Rawls’s magnum opus is A Theory of Justice, published in 1971. Let’s talk about what the theory actually is. It has its own name, which is “justice as fairness,” and there are two principles involved. Tell me about them.

Joshua Cohen: A Theory of Justice defends two principles of justice. The first principle is an expression of what we conventionally refer to in the United States as liberal ideas about liberty. The idea is that everyone is entitled to equal fundamental liberties including political liberty, freedom to participate in the political process, religious liberty, freedom of speech and association, freedoms associated with the rule of law—including protection of bodily integrity. Rawls says that principle has priority. That’s the first principle of the theory. We’ll call it the Liberty Principle.

The second principle has two parts, and because it has two parts it is a little more complicated than the first one. The first part of the second principle provides a way to think about equality of opportunity. The idea is that where you end up shouldn’t depend on where you start out, that your birth should not fix your fate. A little more precisely, it says that if you take two people who are equally motivated and equally able, their chances in life should not depend on differences in their social backgrounds. Your chances in life shouldn’t depend on your class background, your family background, the neighborhood you grow up in; they should depend on what you’re able to do and what you’re motivated to do. So, equally able and equally motivated, you have equal chances. That is Equality of Fair Opportunity.

SR: This sounds a lot like the concept of the American Dream. That is, as my mom used to say, the idea that anybody can be president.

JC: Right. So it is an equality of opportunity principle. But people think about equality of opportunity in different ways. Some people think that equality of opportunity means that you shouldn’t have laws that get in the way of people making it, of people moving up. Equality of Fair Opportunity is a much stronger principle than that because what it says is that nothing—neither law nor distribution of income—should hinder the chances of somebody who’s able and motivated to have the same opportunities as somebody else who’s equally able and motivated but one of them started rich and one of them started poor. It is an interpretation of the American Dream, but it’s one that you will not find in the classical liberal tradition and its modern proponents: I’m thinking particularly of Milton Friedman and Friedrich Hayek. They don’t accept this strong Equality of Fair Opportunity principle, because in order to achieve equality of fair opportunity, what you have to do is make sure that people are kind of equal at the starting gate of life, and what that means is using, for example, the tax system to make sure that you have programs of education and training and health care, for that matter, that ensure that people have equal chances.

SR: So equal opportunity is not just about getting out of the way, it’s also about actively doing something to ensure that there are equal opportunities for everyone.

JC: Exactly.

SR: What would Rawls say to somebody who says, “Well, if you take money from me in the form of taxes to do that, that violates the first principle—that violates my liberty?”

JC: That’s a great question. You have to go back to the first principle, and you need to think hard about what are the fundamental liberties. What Rawls said is the basic liberties are political liberties—rights to participate in government and the political process, including freedom of association and freedom of expression—and personal liberties—liberty of conscience, freedom of religion. He does not include the liberty to earn as much as you can in the market among the fundamental liberties.

This has been a big question in American constitutional law in the twentieth century, and unfortunately it’s emerged as a big question again in the 21st. There was a very famous decision that the Supreme Court made in 1905. It was called the Lochner decision. What the Supreme Court said in 1905 is, essentially, that it is a violation of the Constitution for the government to be regulating the market by, for example, making minimum-wage laws or maximum-hours laws or health and safety laws. That this was treating citizens not as free and independent, but as “wards of the state”—that’s a quotation from the 1905 decision. Between 1905 and 1937, the court, on average seven times a year, overturned government—both state and federal regulations of the market—in the name of the constitutional protection of liberty. This went until 1937, when the Court flipped, and said in essence, it is okay for the government to regulate the market, to make minimum-wage laws and maximum-hours laws, and regulate occupational safety and health. It said in essence that the market liberties are not constitutionally basic in the way that first amendment liberty of religion is, or freedom of expression is, or the freedom to participate in the political process is. Not that there’s no protection, but they are not at the same level of importance in the constitutional firmament.

SR: So the Court is saying this, and Rawls is saying this as well.

JC: Rawls, I think, is very much in line with that view that the Court expresses in 1937. There are people who are for rolling back the twentieth century. Rick Perry is for rolling back the twentieth century; Glenn Beck is for rolling back the twentieth century. And what it means to roll back the twentieth century is basically to go back to that point where you say the Constitution is fundamentally opposed to the modern regulatory state. [thumping sound]

SR: I want to point out that that noise is you getting excited and hitting the table.

JC: That’s right, Seth! Philosophy is part of politics. It’s not a commentary on politics; philosophy is part of politics. That’s a basic Rawlsian point. The enterprise of political philosophy is continuous with the political enterprise. So the passion that’s appropriate to these issues in the political arena I think is also appropriate to them in the philosophical arena—they matter.

SR: This is great because I think it’s very easy to think that this is strictly an academic exercise, and we want to show how this applies to real life.

JC: Bullshit to say that it’s strictly an academic exercise! People who say that it’s strictly an academic exercise are defending privilege because part of the enterprise of political philosophy is to reflect on whether we’re doing things the right way or not, to reflect on whether we’re a just society or not. And if you say no, that’s an academic exercise, then what you’re doing is keeping that kind of reflection about justice out of the political process.

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SR: So let’s talk about part B of the second principle in Rawls’s theory.

JC: So, we’ve got equal basic liberties, we’ve got equality of fair opportunity, and then we have what Rawls calls the difference principle. The difference principle says, we live in a society where we’re all born equal and we’re equal citizens, but some kinds of economic inequalities, Rawls thinks, are permissible. The question is: which inequalities and to what extent? And the general idea is inequalities should work for the common advantage. What does that mean though? What “inequalities should work for the common advantage” should mean is that you should only have inequalities that work to the maximal benefit of the least advantaged. So, for example, suppose somebody makes more than somebody else. They are prepared to do stuff—make products, innovate, invest, take risks—that they would not otherwise be prepared to do. And by doing that, you thereby expand the pie, so that everybody can share in the benefit. So then Rawls says, it’s important not just that everybody share in the benefits, but that the way people share in the benefits is that the least advantaged—people who are, let’s say, in the bottom quintile, the bottom 20 percent in the income distribution—do as well as possible as a consequence of the inequalities. So you use, among other things, tax and transfer to make sure that the income of people in the bottom quintile is as high as it could be, so we share in one another’s fate.

SR: Let me make sure I understand this: if the person at the top of society moves up, Rawls says that’s okay as long as it lifts the people at the bottom.

JC: Yes and no. That’s right, except that the difference principle is a little stronger than that in two different ways. First way: the person at the top could do a lot better and the person at the bottom can do a tiny bit better, or, a little bit more than a tiny bit better. What the difference principle says is that the standard for just inequalities is that people at the bottom in the bottom quintile, do as well as they could possibly do. Their income is as high as it possibly could be without undermining the incentive for the person at the top to do better. So it’s not just trickle-down because it’s not just a trickle; it requires that we maximize the income at the bottom, not just give the bottom some little benefit.

SR: He’s really using the quality of life for those at the bottom as the standard by which we’re measuring justice.

JC: You want a vantage point, a standpoint, from which to judge the justice of the economy. The economy is not a game to reward the swift and the talented. The economy is supposed to be—it goes back to Rawls’s basic idea of “justice as fairness”—a fair system of cooperation from which we all gain. It’s about fairness in life, not a talent contest or a race. Don’t judge by the best off, the people who are at the top, don’t judge by the average, don’t judge by the middle class. Judge by the people who are in, let’s say, the bottom quintile.

I said there were two things. Second thing is, when you’re thinking about inequalities, you don’t want to start with the status quo. I mean the status quo now in the United States is you’ve got people at the top—the top 1 percent, or as Paul Krugman keeps saying, the top 0.1 percent—who have been doing fantastically well for the past thirty years. You don’t want to say, okay, from here on it’s okay so long as you maximize for people at the bottom because you’ve already got this unjust inequality in place already.

SR: Rawls is really reconciling, as you say, egalitarianism and liberty. He’s saying that it’s not one or the other; you can have both.

JC: That’s correct. I think there are two really fundamental contributions that Rawls makes in political philosophy. One is to say that it’s possible to have a kind of reasoned argument about fundamental issues of justice, moral and political principles and values. And the second is that the “it’s liberty or equality” debate is a false choice, that both of those are important political values as Lincoln said in the Gettysburg Address, and that the challenge is to achieve a reconciliation between them. And that’s what he thought justice as fairness had achieved.

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SR: Let’s bring this down to the street level and talk about how this applies to the Occupy Wall Street movement. How does Rawls apply to this concept of the 99 Percent and the concentration of wealth in the hands of the 1 percent?

JC: Let me say two things. First of all, nobody speaks for Occupy Wall Street, and I certainly don’t. It’s a diffuse group of people with strong convictions, and the convictions point in somewhat different directions, and there’s no authoritative statement—other than the 99 percent and the 1 percent—there’s no really authoritative statement of what Occupy Wall Street stands for. And that’s not a criticism; I think that’s good. This is a movement, not a political party, or a government. Secondly, obviously I have some caution about answering the question “What would John Rawls have said?” You know, I knew him pretty well; I think I have some ideas about what he would have said. But I want to be cautious.

That said, socioeconomic inequality has been growing steadily in the United States for almost 40 years. Not that it was such an equal place in 1970, but much more so than now. It’s grown vastly more unequal, and there’s also been a change in political discourse, a kind of embrace of that as a perfectly fine thing, nothing wrong with that. I think that also represents a change from 1970 or probably even 1980 or 1990, a change in the kind of public discourse about inequality.

SR: So to the extent that the 99 Percent is saying, “Look, we don’t need to have all the wealth that Bill Gates has, we just need the distribution to be a little more equal and a little more fair,”Rawls would agree.

JC: Absolutely. Rawls, I know, was very disturbed about the extent of inequality in the United States, and he would have appreciated the Occupy Wall Street movement as doing something. It has undeniably achieved something extraordinarily important, which is to put that issue of unfair, unjust inequality back into the political discussion. It was out. You could talk about safety nets maybe; that was okay. But to talk about extreme inequality as unfair, as unjust, as not what we ought to have as a democratic society, that was not in the political discussion. Occupy Wall Street has put it back, which is an extraordinary achievement.

SR: Should the people in the Occupy Wall Street movement be looking to Rawls as a touchstone?

JC: I think political philosophy is not an observer’s vantage point on politics. Political philosophy is part of politics, and the sense in which it’s part of politics is, I think, people bring to their political engagement a set of convictions about justice and injustice. And that’s true of people, as I said, on the political right, who think that—more or less—Hayek had it right. And people should read Hayek; he is a great thinker. I don’t agree with him, but the worst thing I would say about Hayek is that he’s wrong. He’s not corrupt, he’s not stupid, he wasn’t paid off, he’s not ignorant, he’s just wrong. Those kinds of convictions about right and wrong are part of what people bring to politics; it’s what guides them in politics, and it’s what impassions them in politics. So I think that people who find themselves thinking, “This inequality that exists now in the Unites States is gross, it’s unjust, it’s unfair, it’s undemocratic,” would find a way of thinking further about those convictions—of reflecting on those convictions—in Rawls. When you find a compelling reasoned defense of your convictions, it helps to strengthen those convictions.

SR: One last question: Occupy Oakland has been in the news quite a bit. There have been clashes with police, and protesters closed the Port of Oakland with the strike the other day. Rawls has some things to say about civil disobedience. What would he say about this?

JC: Rawls thought civil disobedience is sometimes justified. The thing that I think is important in what he says that bears on Occupy Wall Street is that civil disobedience is a particular way of breaking the law. And he’s really thinking of, when he’s writing this stuff about civil disobedience, he’s thinking of the civil rights movement and he’s thinking of Martin Luther King’s letter from the Birmingham jail. And what he thought was, what you’re doing when you’re being civilly disobedient is you are making an appeal to the sense of justice of your fellow citizens, and that it’s important that that be very explicit. You’re not just breaking the law, you’re not just acting on some private convictions, you’re saying the kinds of things that King used to say when he would cite the Declaration of Independence, when he would cite the Gettysburg Address, when he would say—as Lincoln said—that the Constitution has to be interpreted through the Declaration of Independence, through the ideas about liberty and equality that are in the Declaration. It’s very important that you say, “We are prepared to accept the legal consequences because we think”—and [King] thought—“that the political system is generally a legitimate political system, but we think that there is an extreme injustice.” And that injustice is not being addressed by our ordinary politics. We have to go outside—this is a crucial point—we have to go outside ordinary politics, but when we go outside ordinary politics, what we are appealing to is a sense of justice that we think is still present in the hearts and minds of our fellow citizens.

Making that appeal shows a sense of confidence in the political-moral sensibilities of fellow citizens. It is an appeal to what is best in the country and in its political traditions, and an expression of hope that those political-moral sensibilities remain alive. I think the kind of resonance that Occupy Wall Street has had shows that that hope and that conviction are well justified. I think it’s very important to keep front and center those fundamental principles, those ideas about justice. And when I say that I’m not saying that Occupy Wall Street should be doing something different from what it’s been doing. I’m standing up and thanking Occupy Wall Street—the people who are doing it—both for putting themselves out there and for maintaining what I think is a pretty high ground of principle in the appeals that they have made.

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