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 I’d like also to amplify a point I originally made in passing about the relevance of the Stoic tradition of thought to his arguments about justice—arguments that are, I repeat, challenging and serious.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

Just as Socrates had played a mediating role, so too Soloviev called for a reconciliation

Vladimir S. Soloviev and the politics of human rights.
Journal of Church and State: 01-JAN-99 Author: Wozniuk, Vladimir

Soloviev once wrote that, "I not only believe in all that is supernatural, but properly speaking, it is only in this that I believe."(56) The philosopher-theologian's steadfast adherence to the Nicene Creed as his confession of faith in the face of what he viewed as its increasing abandonment by those calling themselves Christians is important in obtaining a coherent picture of his writing on contemporary Russian affairs, Increasingly jaded by what he saw as a corrupt church distorting Christianity and justifying the repression of ethnic minorities, Soloviev at one point condemned the prevalent "ecclesial dogmatism, false spiritualism and individualism" in Russia, even suggesting that uniting "with contemporary unbelievers in a struggle against contemporary Christians" might be preferable to seeking Christian unity.(57)

Soloviev even augured a "great Divine fate" in store for Russia, consisting of inevitable judgment in the form of retribution against Orthodoxy and tsarism coming from the East. In his well-known poem "Panmongolism," Soloviev the prophet-poet claimed that the second Rome (Byzantium) had fallen because "Prince, priest and Emperor" had "disavowed" the Messiah, and now "flatterers of Russia" were repeating to her "... over and over, You are the Third Rome!" If Russia would not renounce her unjust imperial past, a terrible price would be exacted: "And the Third Rome lies in the dust, Yet now there will be no Fourth."(58)

III. POLITICAL AND RELIGIOUS RECONCILIATION AT THE END OF HISTORY Still, Soloviev retained faith that true religious and political morality would be regenerated in human community at the "end of history." The eschatalogical dimension of Soloviev's thought did not become fully visible until 1900 and the last part of his final project, Three Conversations on War, Progress and the End of Universal History ..., which he provocatively entitled "A Brief Tale about the Antichrist."(59) This political-religious allegory is not only closely linked to his earlier darkly-foreboding poem "Panmongolism," the opening lines of which appear as an epigraph to the story, but also to several essays published two to three years earlier, and in which a number of the tale's contemporary inspirations and sources can be discerned.

Soloviev had become interested in the problems of a planned ecumenical congress scheduled to convene at the end of the century in Paris, which subsequently became the topic of an essay titled "The Second Congress of Religion."(60) Long before it would convene, Soloviev explained that the issue of "truth and error" in dogma presented an insurmountable barrier for many would-be participants, most notably Russians. Perhaps more than coincidentally, overcoming just such problems of ecumenical disagreements would emerge as one of the central themes in the tale's drama of the reconciliation of the three main branches of Christianity--Orthodoxy, Catholicism, and Protestantism--and its suggestion that the churches would be reconciled to Judaism as well. Certain other elements of "A Brief Tale ..." appear to be derived from the pages of the Russian press and the annals of the Chief Procurator of the Holy Synod, which recorded and expressed serious concerns about various bizarre manifestations of millenarian anxieties that had surfaced in Russia's provinces.

Such concerns also became the subject of Soloviev's article, "The Spiritual Condition of the Russian People," which examined the mood of suspicion in certain remote regions of Russia regarding the census being conducted at the time, perceived by some as a harbinger of the coming Antichrist, the beginning of "sorrows and trials" forecast in the Revelation of St. John.(61) Unique among Soloviev's endeavors, "A Brief Tale about the Antichrist" operates on many different levels and has yielded a variety of not-inconsistent interpretations. The story has been viewed as representing part of Soloviev's "veiled controversy with Tolstoy," his final salvo, as it were, in an intense debate over spiritual matters which had gone on for years.(62)

The issue, of course, was Tolstoy's "new religion," which Soloviev understood to be but a variant of ancient heresies such as Arianism and Monophysitism. The story is also generally considered to be his final legacy to an unbelieving world; in it he offered his own perspectives on biblical prophecy in answer to millenarian expectations. He was obviously inspired by previous Antichrist themes, most notably Dostoevsky's legend of the Grand Inquisitor, which constitutes a key section of the novel Brothers Karamazov, and which has long been regarded by many as an important contribution to the timeless debates of normative political philosophy.(63)

Soloviev's tale should also be understood as the culmination of his efforts to refute Nietzschean will-to-power ethics directly from a biblical perspective, while at the same time outlining the inevitable consequences of human egoism outside the framework of the Divine will.(64) To Soloviev the Kantian idealist philosopher, the "acceleration of the historical process" and human progress were sure "symptoms" of the proximity of the end times,(65) in response to which he adapted the familiar Dostoevskian theme of the rise of an immoral and lawless "superman" who imposes his will upon others. But Soloviev's superman (who remains nameless) appears only at the end of history and takes on an overtly political persona. This subject had been of growing interest to Soloviev since at least 1897, when the first of several essays appeared reviewing Nietzsche and his influence in Russia.(66)

In this tale, a European "man of the future" experiences a psychotic break before he surrenders his will to a Mephistophelean spirit to become the Antichrist, who embarks on a career of intrigue that soon leads to his ascension to world political and religious leadership.(67) This characterization of a political superman who arrives in the last days to teach humanity a new morality and religion clearly harks back to Soloviev's withering denunciation of "Nietzscheanism" and those in Russia who sought to emulate Nietzsche's superman, which in his view was the product of an insane mind.(68) The tale also resonates with Soloviev's earlier warnings concerning the dangers of nationalism, the predatory politics of colonialism, and the classical European balance of power system. Soloviev's criticism of Russia's "anti-Christian" nationalism appeared late in his life in increasingly ominous tones, which can be seen prominently, for example, in a historical essay titled "Retribution."(69)

In this essay, he explained the Spanish Empire's collapse during the Spanish-American War as a direct result of its long history of repression, warning in a thinly-veiled analogy that the Russian Empire too would eventually have to face similar consequences for its continued abrogations of human rights perpetrated in the name of the Divine will.(70) European realpolitik and conflicting nationalist agendas of the day suggested an approaching confrontation of some kind, and Soloviev had long prophesied that the consequences of imitating the European powers' "politics of interest" would inevitably result in what he referred to as "cannibalism."(71) Soloviev depicted with remarkable prescience in this allegory the growth of powerful international organizations, European political unification into a "United States of Europe," and the expansion of Japanese power and influence. Extrapolating from Russia's enfeebled great power status, Soloviev concluded that the rise of Japan would lead to a confrontation and result in an explosive judgment upon Russia, prefiguring by several years the devastating Japanese blow dealt to the Russian imperial fleet at the battle of Tsushima strait in the Pacific (1905).

The story tells of a future Sino-Japanese conquest of Europe, which is virtually enslaved for fifty years before a revolt against Asian control leads up to the last stage of the historical process. The European Antichrist appears at the end of this age to unite apostate church and state at a Congress of world religions in Jerusalem by promising "prosperity" for all in exchange for subservient allegiance. However, an ecumenical remnant rejects this new world order, experiences the wrath of the Antichrist, and retreats into the desert outside the Holy City, where the truly faithful are reconciled and miraculous events produce the denouement of the world historical process at Armageddon, with Judaism playing a key role. While it might be tempting to see the idealist philosopher undertaking a pessimistic eschatological leap in this story--giving up hope for a more just political order in the here-and-now--it should be emphasized that Soloviev consistently and staunchly professed a faith that embodied an uncompromising eschatological dimension. And no one knew better than Soloviev himself the extent of the physical infirmities that had plagued him for some time; it might therefore also be suggested that he foresaw this to be his last work, and accordingly tried to make more proximate for others that which appeared to him to be an eventual certainty attested by the "signs of the times"--the end of rapacious and "cannibalistic" European politics after an extended time of troubles.

In conclusion, the allegory of"A Brief Tale ..." should be viewed as Soloviev's last public statement on the possibility of ethnic and religious reconciliation and the achievement of full, equitable rights for all. Rather than interpreting Soloviev's final work as exhibiting a late-in-life apocalyptic pessimism that does not square with the rest of the idealist philosopher-theologian's endeavors, one may understand this allegory as reflecting the light of optimism inherent in Judeo-Christian eschatology regarding the possibility of moral regeneration through reconciliation, which could only, however, become fully realized in political community at the "end of history."