I've just finished a long slog with 75 1Ls through John Rawls's brilliant but maddening A Theory of Justice in an elective course on justice (I time it to coincide with Lent). Given the importance of distributive justice to much of what we discuss here at MOJ, I thought these comments by Jason Brennan at 3:AM Magazine were interesting--see especially his answer to the first question about Fairnessland and ParetoSuperiorland and what he says in the second answer about the shortcomings of legal guarantees. I do think there are some (not all, to be sure) interpretations of Catholic social thought that commit themselves (usually without the same level of philosophical rigor as Rawls) too quickly to a kind of Rawlsian fairness approach and would thereby be subject to the reservations Jason Brennan briefly signals here:
3:AM: You next turned to Rawls, probably the greatest liberal political philosopher since Mill. You worry that his theory of justice is paradoxical and that following his principles works against the poor, contrary to his intentions. Can you show how?
JB: I don’t want to get bogged down in Rawls exegesis, so I’ll simplify the issue at the expense of perfect accuracy. At various times, Rawls indicates that he thinks there’s a trade-off between long-term economic growth and distributional goals. If we intervene with social-democratic institutions in the attempt to help the poor, this will slow down growth in the long run. Rawls also seems to think that more free market institutions cannot realize the difference principle. Even if they were to help the poor, they don’t “aim” to help the poor, and so don’t count as realising justice. So, I ask readers to imagine two societies. One — Fairnessland – uses Rawls favored economic institutions, but has slower growth (2% a year for the least well-off class). The other — ParetoSuperiorland — uses laissez faire or welfare state capitalist institutions, but has faster growth (say 4% a year for the least well-off class). Thanks to redistribution, property allocation, and other interventions, the worst off in Fairnessland start off 50% richer than the worst off in ParetoSuperiorland. However, after 26 years of growth, the worst off in ParetoSuperiorland are much richer than the worst off in Fairnessland. It seems that if you really care about how well the poor are doing, in the long run, you must favour ParetoSuperiorland over Fairnessland. But, as I discuss in ‘Rawls’s Paradox’, Rawls seems to have certain controversial commitments — such as ideas about workplace democracy or about the relationship between institutional performance and people’s individual sense of justice — that commit him to favoring Fairnessland over ParetoSuperiorland. That seems wrong.
3:AM: Do you have a way of fixing this, or is there nothing for it but to abandon Rawls and look elsewhere?
JB: I find a lot to like in Rawls. Society is cooperative venture for mutual advantage. Everyone should have a stake in the rules of the game — the rules should be something we can all endorse. Property rights and other economics aren’t legitimate if they systematically leave large groups of people behind through no fault of their own. How well we do in life depends on the “rules of the game”, and if we think we can demand others play by the rules, they can in turn demand that the rules benefit them sufficiently to win their assent. Still, even at his best, Rawls is too strongly infatuated with the idea of legal guarantees. There is a difference between guaranteeing in the sense of rendering something inevitable (such as how quadrupling the minimum wage would guarantee rising unemployment) versus guaranteeing in the sense of issuing a legal declaration (such as when the Soviet Constitution of 1936 guaranteed free speech, privacy, and due process, or when Bush guaranteed no child would be left behind). A legal guarantee is no real guarantee. Many factors can and do disrupt, corrupt, or pervert legal guarantees. Legal guarantees are good only if they work. To give government the power to promote some valuable end does not automatically promote that end. In fact, sometimes, giving government the power to promote an end undermines that end. Finally, there is no guarantee that such legal guarantees will outperform other ways of generating the preferred goal. Sometimes, if people refuse to guarantee certain valuable outcomes, their refusal is part of what actually generates the valued outcome. As John Tomasi documents in his new book Free Market Fairness, and as I have complained elsewhere, Rawls doesn’t play fair when he assesses different kinds of regimes. He effectively compares property-owning democracy at the level of ideal theory with a not-very-charitable, non-ideal characterisation of more capitalistic regimes. At the very least, Rawlsians should admit that at the level of ideal theory, welfare state and even laissez faire capitalist regimes can satisfy Rawls’s theory of justice. In fact — and I say this as stringent critic of real-world command economies — I think even centralised, command economy socialism can satisfy Rawls at the level of ideal theory. One misuse of ideal theory would result from inferring that if some institutions are best under “ideal” conditions, then our real world institutions ought to come as close as possible to those institutions. Not so. Different conditions call for different tools. Ideal conditions might call for a wrench when non-ideal conditions call for a hammer. In other words, ideal theory is like designing cars on the assumption that they’ll never encounter slippery pavement, and will never be driven by bad drivers. If we had no such worries, we might not bother installing air bags. Here and now, though, we have compelling practical reason to not build cars like that. Analogously, if power didn’t corrupt, if people were invariably altruistic and omniscient, we might have reason to entrust government with a great deal of power. But if people are corruptible, if power is above all what corrupts, if people’s generosity depends very much on circumstances, and if relevant knowledge often is inaccessible to those who hold power, the kind of government we have reason to favour might not remotely be like that.
I hope one of the fruits of the election of Pope Francis will be (indeed, already has been) a renewed appreciation for Francis of Assisi--the real Francis of Assisi, not distortions of him to which every age, most especially our own, is inclined. To that end, I've been dipping into the recent biography of Francis by Augustine Thompson, OP. Here's a bit from Thompson's introduction:
In historical writing, I usually avoid suggesting what the past should mean for modern readers. But as many have asked me what I have learned from Francis, I will make some suggestions as to what he has taught me as a Catholic Christian. I am sure that he will teach each reader something different, so these reflections are purely my own. First, he taught me that the love of God is something that remakes the soul, and doing good for others follows from this; it is not merely doing good to others. Francis was more about being than doing. And the others whom the Christian serves are to be loved for themselves, no matter how unlovable, not because we can fix them by our good works. Second, rather than a call to accomplish any mission, program, or vision, a religious vocation is about a change in one's perception of God and creation. Above all, it has nothing to do with success, personal or corporate, which is something that always eluded Francis. Third, true freedom of spirit, indeed true Christian freedom, comes from obedience, not autonomy. And as Francis showed many times in his actions, obedience is not an abstraction but involves concrete submission to another's will. Freedom means becoming a "slave of all." Last--and I hope this subverts everything I have just written--there are no ready and clear roads to true Christian holiness.
Michael Perry posted my friend Charlie Camosy's recent op-ed suggesting that "Republicans have a Pope Francis Problem." Indeed, they do (along with several other problems!). But, of course, so do the Democrats, and so do most of us. The Pope -- like his predecessors, and like the Church, and like Christ -- proposes an understanding of the human person and of human community that does not map neatly onto or cohere with any major camp in American politics.
Many Catholics who lean to the left politically tell a story in which "the Democrats are so close to being Catholic -- after all, unlike the Republicans, they care about the poor, and the environment, and equality, and are communitarian rather than individualistic -- if only they would moderate their stance on abortion", but this story strikes me more as wishful thinking than accurate description. It is not plausible, even if it is comforting for some, to regard the Democratic Party as a force for human dignity, the common good, and solidarity (in Charlie's words, for "social justice and nonviolence").
To say this, obviously, is not to say that the Republican Party is such a force. I'm pretty sure Charlie and I agree that, in many respects and on a number of issues, the policies promoted by the GOP are not, all things considered, thoughtful applications of Catholic Social Doctrine. But if the Republicans have a "Pope Francis Problem", then the Democrats -- the party of "no" on school choice and education reform, the party of Planned Parenthood, the party of irresponsible borrowing and spending, and the party that is stingily statist when it comes to religious freedom -- do, too.
More than a little bit of the post-(papal) election commentary I've read has included almost-gleeful assertions that Pope Francis is making "conservatives" nervous or mad, as if the fact that a Pope's election irritates one's political opponents is a, or the, reason to like that Pope. But, putting aside a few nutty commenters on traditionalist blogs, I've heard from "conservatives" nothing but enthusiastic words of thanksgiving and welcome regarding Pope Francis - as it should be. He seems (like his predecessors) wonderful, a real gift. Is this because the Pope -- or, for that matter, the Gospel -- doesn't challenge many American "conservatives'" political premises and positions? Of course not! But it would involve not hearing the Pope very well for American "liberals" to imagine that his words about (for example) "protecting" creation constitutes endorsement of the Democratic platform (or even of that platform-minus-abortion-rights).
I just noticed that the two legal scholars who are arguably the two greatest--at the very least, two of the greatest--constitutional scholars of religious liberty of their generation both did their undergraduate work at Michigan State and both received their law degrees from the University of Chicago. A mere coincidence? (At least there is this difference: one is an evangelical Christian, the other, a nonbeliever.)
With the help of the Institute for Justice, the Benedictine monks of St. Joseph Abbey in Louisiana (who partly support themselves through making caskets) have won a challenge in the Fifth Circuit to a (rent seeking) Louisiana restriction on the sale of caskets to licensed funeral homes. As Eugene Volokh notes, this is another impressive win by IJ in a case challenging state economic regulations as lacking rational basis, notwithstanding the high level of deference to the government in such cases. The opinion by Judge Patrick Higginbotham is here.
Fr. Brennan, a professor of law at Australian Catholic University, quotes, along the way, both Notre Dame law and theology prof Cathy Kaveny and MOJ's own Rob Vischer, here.
My former student, Brian Murray, has recently published an insightful paper on the Hosanna-Tabor case, "The Elephant in Hosanna-Tabor" (link) which explores the question -- which Hosanna-Tabor did not have to answer definitively -- of how to define, or identify, "religious" institutions. Check it out.
This quote, from the Fifth General Conference of the Bishops of Latin America and the Caribbean (2007), appears at the front of George Weigel's new book, Evangelical Catholicism: Deep Reform in the 21st Century Church (which I recently read and enjoyed very much):
The Church is called to a deep and profound rethinking of its mission. . . . It cannot retreat in response to those who see only confusion, dangers, and threats. . . . What is required is confirming, renewing, and revitalizing the newness of the Gospel . . . out of a personal and community encounter with Jesus Christ that raises up disciples and missionaries. . . .
A Catholic faith reduced to mere baggage, to a collection of rules and prohibitions, to fragmented devotional practices, to selective and partial adherence to the truths of faith, to occasional participation in some sacraments, to the repetition of doctrinal principles, to bland or nervous moralizing, that does not convert the life of the baptized would not withstand the trials of time. . . . We must all start again from Christ, recognizing [with Pope Benedict XVI] that “being Christian is . . . the encounter with an event, a person, which gives life a new horizon and a decisive direction.”
