APPLIED TO RAWLS'S CONTRACTARIAN THEORY OF JUSTICE

My account suggests that institutions matter, but, in addition, ideas about institutions matter, because the contents of institutions are merely influenced, not structurally determined, by the power dynamics of political compromises. Better institutions are possible if they can be conceptualized: if they become “thinkable.” My approach recognizes a space in which better ideas of the social world can lead to better collective outcomes because they can help people reformulate their own subjective interests. Scholarship in political theory can help us map out possible constitutional bargaining spaces and contribute to more desirable institutional arrangements by furnishing political actors, or anyone with some capacity to influence social processes, with the knowledge of possible alternative rules of the game.

Pennington (2011) applies the insights of robust political economy to several key issues in public policy, namely problems of market failure, environmental policy, the welfare state, and international development. His account includes analysis of some key issues in political theory, including distributive justice. His perspective is mainly critical. He points out how normative commitments to some institutions that aim to support distributive justice, deliberative democracy (2003), social capital, or multiculturalism are likely to fail the stress-tests of robustness at the point of implementation as public policies. This leaves his preferred alternative, classical liberalism, as the more commendable approach. I propose an extension to this approach to RPE. Robustness can be applied to political theories at a higher level of abstraction than the policy implications of the theories alone.

Applying this approach to Rawls’s theory of justice can be particularly fruitful since even his idealized theory includes problems of knowledge (2005, 56-57) and self-interest (2001a, 175) as challenges that social institutions should overcome. Rawls’s central philosophical aim is to establish what just social institutions would look like and be expected to achieve. He defines just institutions as those under which a community of free and equal citizens would agree to be governed and that would stably reproduce the conditions of their public acceptance over indefinite future generations (2001b, sec. 7).

As a mechanism for discovering what free and equal citizens would choose, Rawls proposes a hypothetical contract situation, the Original Position, whereby representative agents go behind a veil of ignorance that removes from them knowledge of their personal characteristics, social position, and conception of the good (2001b, sec. 6). However, they are aware of certain basic facts of social theory. In this condition, they engage in a bargaining process that selects the principles that should guide the establishment of social institutions. As such, both the means (a hypothetical social contract) and the ends (allowing free and equal citizens to engage in respectful and productive social cooperation) are similar to Buchanan’s. The veil of ignorance in Rawls’s theory plays a parallel role to a veil of uncertainty in Buchanan’s constitutional choice situation (Buchanan 2001, 180).

Rawls (2001b, sec. 13) proposes that these representative agents would agree to two principles of justice. First, the Liberty Principle which guarantees as part of a basic constitutional framework a significant range of civil liberties (including freedom of speech, religion, association, political participation) equally to all. Second, the Difference Principle which requires all social positions to be available to all on the basis of fair equality of opportunity, and that any inequalities of social resources be arranged so as to benefit the least advantaged in society.

Critically, the application of Rawls’s theory is restricted to reasonably ideal conditions where agents have a shared commitment to justice, have sufficient knowledge to judge the effectiveness of institutions, and where citizens can hold the political system to account. When it comes to less-than-ideal conditions, Rawls still believes that the ideal should represent a benchmark that is, in principle, achievable and against which real institutions should be judged.

By contrast, the sort of institutions that exhibit robustness when defending justice may be quite different from the kinds that reflect the principles of justice in an ideal setting. For Rawls, justice is best enshrined in the constitution of a centralized unitary democratic state with an independent judiciary to protect basic liberties and powerful branches of government that exert ultimate control over the economy. A robust perspective advises that lack of relevant knowledge and the presence of opportunistic political behavior could render such a scheme apt to fail. A more decentralized federal regime where powers are separated in such a way that citizens can hold institutions to account through exit powers may not permit the same fine-tuned distribution of rights and resources that justice commends in an ideal setting. However, it may be more likely to protect basic liberties in the less-than-ideal setting where political actors cannot be perfectly trusted.

This approach also offers a different perspective on the interests of the least advantaged. Rawls considers how different institutional choices would impact the least advantaged in various ideal scenarios. He concludes that only a liberal socialism or radically redistributive property-owning democracy could be just. He rules capitalism out as unjust because of its insensitivity to wealth inequality (Rawls 2001b, 136). A robust approach compares alternatives like socialism and capitalism in the non-ideal as well as the ideal setting. If the failures of socialism in non-ideal settings are much more substantial than the failures of capitalism, then it turns out that the worst conceivable social position is to be among the disadvantaged under a socialism that fails to reach its objectives. By contrast, being among the disadvantaged under an imperfect capitalism may turn out to be the far less risky option. Hence, using similar rationales of “maximin” (Rawls 2001b, sec. 28; cf. Buchanan and Faith 1980) and political stability that underpin Rawls’s Difference Principle and justify socialism in the ideal setting could justify capitalism in the non-ideal setting, which is more relevant for establishing the relevant position of the least advantaged.

In making robustness a commendable criterion for institutions, I help clarify the normative case for constitutional principles (Rawls 2005, 161) and decentralization of power rather than following more narrowly expedient utilitarian rationales. The recognition of robustness as a commendable property of institutions can also aid in Rawls’s (2001b, 3) philosophical task of reconciling individuals with the real political world that they encounter.

 
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