I wish Wolterstorff had given due credit to the Stoic and Roman law sources

David Johnston: The Immanent Frame February 25th, 2009 at 6:53 am

Since Professor Wolterstorff chose to respond to the points I made about his treatment of Rawls, let me explain why I think he misreads and consequently brushes off Rawls prematurely. I’d like also to amplify a point I originally made in passing about the relevance of the Stoic tradition of thought to his arguments about justice—arguments that are, I repeat, challenging and serious.

In the slightly more than two pages Wolterstorff devotes to a discussion of Rawls, he argues two points: first, that Rawls’s theory of justice is an inherent natural rights theory (that is, a theory of the type Wolterstorff defends in his book), and second, that Rawls “does nothing at all to develop an account of such rights.” I believe that the first of these claims is mistaken. The second claim is ambiguous, since the phrase “an account of” can mean various things, but on most reasonable readings, this claim also seems to me mistaken.

The central piece of textual evidence Wolterstorff cites in support of his first claim comes from a footnote late in A Theory of Justice (1971) in which Rawls explains how a feature of his theory of justice can be used to “interpret the concept of natural rights.” Rawls’s central point here is that the term “natural” suggests a contrast between rights identified by the theory of justice and rights that are merely conventional; the former are fundamental, while the latter are derivative and can be overridden by other considerations. So there is an affinity between the idea of natural rights and the idea of Rawls’s theory that individuals should as a matter of justice enjoy some rights that cannot be overridden by other considerations, such as the perceived greater good of the whole.

Although Rawls is happy to point to the affinity between his conception of rights and the notion of natural rights, he makes it absolutely clear that this affinity is nothing more than that, and is not an identity, as Wolterstorff would have it. In Rawls’s view, the concept of a natural right is the concept of a foundation or premise of a theory of justice. Rawls rejects the concept of natural rights because he regards the account of the rights all individuals should enjoy without fear that those rights will be overridden as a conclusion, not a premise, of his theory.

For his interpretation, Wolterstorff leans heavily on a claim about Rawls’s theory that Ronald Dworkin published in 1977. But Rawls rejected Dworkin’s claim implicitly in his lectures on “Kantian Constructivism in Moral Theory” (published in 1980) and explicitly in his essay “Justice as Fairness: Political not Metaphysical” in 1985. In these writings Rawls makes it clear that his theory is “conception-based,” not “rights-based.” That is why, as Wolterstorff observes, Rawls was so reluctant, already in A Theory of Justice (1971), to “make explicit the natural rights basis of his theory.”

Rawls in fact consistently rejected the idea that his theory of justice is based on the idea of natural rights, though he believed that his theory provided an illuminating reinterpretation of that idea, just as he believed that his idea of “legitimate expectations” provides a reinterpretation of the idea of “desert” (which he rejects) and his idea of “primary goods” provides an alternative to the idea of “well-being” (which he also rejects). I don’t understand why Wolterstorff so readily accepts Dworkin’s account of Rawls’s theory, which Rawls repudiated not long after it appeared in print, rather than accepting Rawls’s account of his own theory.

In his response to my initial comments on his book, Wolterstorff says that if Rawls does not assume the existence of natural rights, “then it is even more clear that he is not, for me on this issue, a dialogue partner.” But this defense seems disingenuous. Wolterstorff’s book is a defense of the idea of natural rights; he does not address it only to readers who accept his conclusion. Moreover, he does treat as serious dialogue partners writers who defend the idea of justice as right order, an idea that he considers the major competitor to his idea of justice as inherent natural rights.

The principal reason why it seems unfortunate that Wolterstorff brushes aside Rawls’s theory so quickly is that Rawls does offer an “account of rights.” He offers an elaborate and challenging account of the reasons why the members of a just society would accept the proposition that each and every one of them has rights that cannot be overridden for the sake of a greater good. Wolterstorff’s account is foundationalist, while Rawls’s is constructivist in character. Rawls offers an important alternative that is neither a variant of “justice as right order” nor of “justice as inherent rights,” and Wolterstorff’s own argument could be improved considerably through recognition of the distinctiveness of Rawls’s account.

As I suggested in my initial comment, I wish also that Wolterstorff had given due credit to the Stoic and Roman law sources of natural law thinking. In De legibus Cicero, who was assassinated toward the end of 43 B.C.E., asserts that justice is rooted in “that highest law, which was born eons before any law was written or indeed before any state was established” and argues that justice is rooted in nature, and specifically in the nature of human beings. Cicero insists on the equality of all human beings with regard to justice. The reasons why Wolterstorff’s neglect of Cicero, the Stoic tradition, and the tradition of Roman law is unfortunate are twofold.

• First, as a matter of historical fact, the contributions of these traditions to thinking about justice and about natural law and natural rights in particular, including the thinking of medieval Christian writers, are of tremendous importance.
• Second, Cicero in particular addresses many of the difficulties with secularist accounts of rights Wolterstorff discusses. It may be that Wolterstorff would have rejected Cicero’s arguments, but it might have strengthened his argument if he had at least considered them. The Immanent Frame