As Brian Barry suggests, the question of justice arises when custom loses its grip; when the prevailing social myth and what Stuart Hampshire calls its ‘fallacy of false fixity’ – that relations cannot be other than they are – is exposed. This is not to say that new fixed entities are never then proposed to replace the myth. Plato’s divisions of the soul and their reflection in the state, the liberals’ titles rooted in first possession, the Marxists’ resolution of real contradictions, and Moore’s directly intuited Good are only four of the more notorious past instances. But even if we were to regard suggestions of this sort and the arguments to support them as more than an intellectually elaborate way of ‘thumping on the table’, which Barry does not, they would, as he says, still leave us with the old puzzle of ‘how moral judgments can provide us with reasons for acting if they consist of reports about the existence of a peculiar set of objects’. They would leave us with ‘no sufficient place’, as Hampshire puts it, ‘for the distinction between theoretical reason and practical reason, between thinking about actualities and thinking about possibilities’. They are suggestions of a kind for which neither writer, quite rightly, has time.
There are two more promising lines of argument. The first is the one that Plato gave to Thrasymachus and Glaucon in the Republic, the argument that Plato himself clearly thought he had to beat: that justice, to be acceptable to the powerful, must always be to their advantage. ‘People say that injustice is by nature good to inflict but evil to suffer,’ Glaucon argues. ‘Men taste both of its sides and learn that the evil of suffering it exceeds the good of inflicting it. Those unable to flee the one and take the other therefore decide that it pays to make a pact neither to commit nor to suffer injustice.’ Justice is ‘midway between the best condition – committing injustice without being punished – and the worst – suffering injustice without getting revenge’. It is honoured, if at all, ‘out of inability to do wrong’. The contrary view is that justice should be independent of existing powers and particular interests; ‘cherished as a good’ for itself.
Most of those who have more recently thought about the matter (and who do not believe, as Alasdair MacIntyre and Charles Taylor now do, that in losing an encompassing faith we have lost all capacity to talk about the public good at all) agree that our own present sense of what, exactly, these two more lively kinds of argument for justice now are, and of how we might decide between them, owes almost everything to John Rawls. Barry, certainly, has no doubt: Rawls is simply ‘the greatest political philosopher of the century’. But Rawls’s qualities, as Barry describes them, his sense of the range of considerations, his subtlety, his sheer fertility, together with his desire for derivation, for system, are also his difficulty. He has written one book, A Theory of Justice, which was published in 1971; and less than half a dozen long articles; yet the bibliography of commentaries, which goes only to 1981, runs to several hundred entries. (Harvard undergraduates marvel at his course, which consists entirely, they report, of replies to replies to what’s affectionately become known as ‘TJ’.) The confusion and dispute about him seem as great as ever.
This is not because Rawls has wavered about what justice, if we had it, would be. He has always wanted to say that it would consist in a set of institutions which offered everyone the same opportunity to acquire a set of ‘primary goods’ and generated a distribution of rewards that made the worst-off as well off as they could be. There are problems in plenty, of course, even here: in fixing on the primary goods themselves; in deciding what would count as an unacceptably unequal opportunity to acquire them; in agreeing that an unequal distribution of rewards would indeed be to the greater benefit of the least well-off if – as might be likely in the kind of market society that Rawls favours – it would give the better-off disproportionately more; and much else. Barry examines most of them. The alternative, however, is clear. It’s that we should abandon the idea of justice and settle for trying to maximise our existing preferences.
The confusion about Rawls’s two principles continues because he has wavered in his view about how to defend them. Looking back over his work, Barry explains that like David Hume before him, Rawls has tried two arguments. The first, to which he’s been attracted, Barry believes, because it’s promised to produce a determinate result, is Glaucon’s, the argument from mutual advantage: we can gain more from co-operating with each other than not. In 1958, in an article on ‘Justice as Fairness’, he suggested that this was because the future is uncertain. In what Hume had called ‘the circumstances of justice’, circumstances of moderate scarcity, moderate selfishness, and a moderate equality of powers (without which the stronger could always refuse to co-operate at all), everyone will agree on the two principles because no one will know how things are going to turn out. In A Theory of Justice, Rawls abandoned the circumstances and simply described the point of choice as an ‘original position’, in which everyone is behind a ‘veil of ignorance’ about who, when it’s lifted, they will be and what they are likely to get. But it has become clear to most critics, and is again made as clear as it could be by Barry, that in neither of the two positions can people simply be calculating their best advantage. If they were, then as John Harsanyi has shown, they would be choosing merely to maximise their average preferences. What they must be doing, if they are choosing Rawls’s two principles, is slipping into the second of the two arguments, and assuming justice at the start.
In this respect, Rawls has described a circle. In his first article on the subject, seven years before ‘Justice as Fairness’, he introduced the idea of ‘considered judgments’ that would be made by well-informed, impartial and reasonable individuals who were under no pressure or inducement. Thirty years later, in his Dewey Lectures, he was talking of people being ‘moved’ by three ‘ “higher-order” interests’. And two of these were interests in realising what he called ‘moral powers’: ‘the capacity for an effective sense of justice’, and ‘the capacity to reform, to revise and rationally to pursue a conception of the good’. (The third was an interest in protecting and ordering ‘their conception of the good’.) After a long excursion, he seems to have realised that he cannot after all do what others, like Hume, have also failed to do, which is formally to derive what Barry (although not here) once called ‘ideal-regarding principles’ from ‘want-regarding’ ones. And that, here, is Barry’s point. Rawls, like Hume, has had two theories of justice. But the first of the two, that’s to say in one or another version Glaucon’s, Hobbes’s, Hume’s first, and Harsanyi’s, the theory which starts from the set of existing preferences and calculates future mutual advantage, has either to concede with the formal models of bargaining that unequal advantage at the start will produce unequal advantage at the end (the weak have to settle for less for fear that the strong will refuse the bargain at all); or to remain content with averaged preferences (i.e. with a kind of utilitarianism); or if it is actually to deliver justice, to introduce that idea at the start.
In concluding his case, Barry says he has done little that is new. He is far too modest. Anyone who tries now actually to derive what could in any but a trivial and self-serving sense be called fair division from calculations of advantage will be very brave, or a knave, though a wizard if he succeeds. We also have the most powerful account yet, in a very high pile, of Rawls himself. But what of Barry’s own more positive proposal, that once we cease to try to derive the principles of justice in the way in which Rawls hoped to do, we don’t need to put ourselves behind a veil at all, and can proceed directly, as the people we are, and knowing what we know, from ‘impartiality’? He takes T.M. Scanlon’s economical suggestion that the moral motive is ‘the desire to be able to justify one’s actions to others on grounds they could not reasonably reject’ where (if the motive is to succeed) they also want ‘to find principles which others similarly motivated could not reasonably reject’. It is the desire and the capacity, as Barry describes it, to put ‘oneself in the other’s shoes’; the refusal to be moved by personal advantage.
His own defence for it is simple: the desire for agreed grounds is ‘an original impulse of human nature ... that develops under the normal conditions of human life’. And if we can concede this, we can, Barry thinks, get to where he himself wants to be, to a convincing claim for justice for those beyond our own state. Hampshire is altogether more sceptical. It is ‘ineliminable conflicts’, he believes, which are the ‘normal condition’ of mankind. Not only are there no moral truths to be had. Reason itself is and should not be sovereign. The ‘Enlightenment conception of a single substantial morality’ is a mistake. The philosophical point is that moral identities are partial and particular, passionately held and constantly re-invented. The political point is that the Machiavellian claims of experience and expedience always have force. The idea of reasoned consensus is thus doubly mistaken. Rawls was right to revive the idea of justice as the greatest public good, but not to have tried for actual agreement. The most we can hope for is also the most we should wish for: endless invention and conflict, tempered only by the demand that where parties have to live together but have ends which clash, they should negotiate. Justice is a negative virtue. Individuality is the highest value.
This is not to say that Hampshire disdains the more or less modified egalitarianism which Rawls and Barry and those who think like them want to defend. In the brief moral autobiography with which he starts his elegant essay (the better, he says, for us to see what drives him) he explains that after his experience in the Thirties of the economic depression and the older fellows of All Souls, he has always been that kind of socialist. But he has remained more deeply affected by his interrogation of Kaltenbrunner, who’d been the head of the central command of most of the SS and the Gestapo, at the end of the war: affected by the ease, as Kaltenbrunner recalled it, with which it was possible to conceive and to execute a programme of terror predicated on almost no public justification at all. He has been fascinated by deceit and double-dealing. And he has been more attracted than most English-speaking philosophers to literature and the imagination, to what he nicely describes, in contrast to reason, as thought.
Talking to the Nazi made it clear to him that there was at least as much active evil in the world as there was active good, but that the first and most fundamental distinction for public life was between those who were willing to discuss their position and those who were not. Reflecting on high politics, away from what he regards as the ‘fairy-tales’ of moral philosophy, he has seen the point of duplicity and of fast and difficult decision. Most important, perhaps, thinking about thought itself has convinced him that ‘singular hypothetical propositions ought to be the principal centre of interest for analytical philosophy’ since they are ‘the meeting-point between theoretical and practical reason’. And because hypotheticals, counterfactual imaginings, are a function of language, because languages, natural languages, are inherently particular, and because such imaginings are at the heart of moral reflection, an incipiently universalising reason, he’s concluded, is more than merely insufficient: it can actually subvert that reflection.
Politics for Hampshire, therefore, is driven by a common language and history. But Barry wants to give us a motive to consider the interests of others, those in the Third World and the as yet unborn. His problem – it was raised by Hume, who was rather casual about it, and has more recently been extended by Bernard Williams – is how to bring us to stand in someone else’s shoes and disdain all personal advantage when that someone could be virtually anyone at all. It’s not easy to see how this wide a concern can develop under the normal conditions of any life as it’s actually lived.
He promises a second volume to explore such issues. (A third will be about possible distributions of income and wealth.) And it may be that he has a good answer in hand. But in Williams’s way of putting it, and Hampshire would perhaps agree, there are important differences between reasons that, reasons for and reasons from: a reason that we should do something is a reason for us, but it’s unlikely to work as a reason for us unless we can see that it’s a reason for us from where we now are. On this line of argument – speculative, it is true, even arbitrary, for as Hampshire remarks, we are free to invent more or less any moral psychology we like, but nonetheless persuasive – where we now are, what gives us our motives, is always somewhere and someone in particular; this is what moves our lives and gives them their point.
One might say that it shouldn’t, entirely. But that would be idle piety. If reason isn’t sufficient to move us further; if a decent and far-sighted man like Barry thinks that we should be moved, that we should see ourselves, in Adam Smith’s phrase, as merely one or some among others; and if we have no irremediable defects of character – then only new experiences might work. This doesn’t mean that we really should move, go to Beijing or Bogota perhaps, or spend some nights in a box under Waterloo Bridge, although these may well be good for our view of the good. It means rather that we should take the force of Hampshire’s analogy between private reflection and politics, and come to feel the force of what we presently do not feel in the course of conversation.
This is an argument for a politics of dispute and discussion. Britain in the Eighties is an obvious contrast. The Government here has acted to impose free bargaining for advantage from unequal power (although to its intellectual credit, it doesn’t regard this as a strategy for society, which the Prime Minister has abolished, or for justice). But even the old benevolence, should it return, would not do. If Hampshire’s moral psychology is persuasive, which I think it is, then a discursive politics is as essential to practical reasoning as on the more usual views practical reasoning is to politics. If to reason practically is to imagine, if to imagine is to use language, then to reason practically is figuratively or literally to talk. That’s why for practical reasoning, Hampshire suggests, the political chamber is the most appropriate model for the mind. On private matters, the conversations can be internal, at the most domestic, and between friends. On public matters, however, they cannot.
Barry need not dispute this. He is, he could say, addressing philosophers. If they cannot get their case straight, what hope is there for the rest? And his picture of an impartial person implies a picture of a citizen who is partial to debate. But if the implication is there, he does not draw it. We are left by default with an under-motivated motive; at best with a picture of the moralist and the minister, the expert and the executor, designing the best institutions on principles which they can only presume that we share.
In recent political thinking, the case for engagement has been left to those who insist that we all have a prior right to rule. The case for community has been left to those who argue that as discrete individuals, we are at best half-human. But these thoughts also are locked within the old frame. We do not (although not for Rawlsian reasons) have to decide who we are or what we think or what is due to us before we begin to discuss what to do. High politics, deals and decisions, will always be for the few. But in the more extended and discursive sense of the term, in the contact and extended sensibility, as Barry might see it, which political discussions give us, in the possibilities, in Hampshire’s way of thinking, which they raise, politics is a necessary condition of its own success, and thus, of the possibility of an even minimal justice: the fact of practising it will give us the moral resources we need to succeed with it. The question of the right institutions, therefore, is at least as important as the question of the right philosophy. It’s the paradoxical force of these two excellent books to show why.