In the first lecture of Political Liberalism (and in the two introductions to the text) Rawls makes a great deal of hay out of the need for an independent political reason. This he calls the “freestanding” mode of presentation of a liberal political conception of justice. What this “freestanding” mode is supposed to offer is an ability to have a liberal political conception of justice, for without it Rawls would have to acknowledge that his conception is one among the many competing conceptions: i.e. other “comprehensive doctrines”. These latter are to be shunned, however, since no one will ever agree, they are numerous and incommensurable, not prone to Tolerance (the greatest of virtues, it seems), and have historically led to bloody conflict. No, the possibility of a “public reason” demands an overarching, neutral, political conception (one which all who hold to “comprehensive doctrines” may acquiesce).
My concern is with the very idea that this is possible, for a rather simple reason (which, it seems, Rawls either misses or denies). Politics as a body of thought and practice in every philosophical system, from Plato and Aristotle on, has been a branch of ethics. This is why Aristotle follows his treatise on ethics (the Nicomachean Ethics) by the Politics and explicitly states that the latter depends upon the former. This is a concrete example of the general rule. As such, then, any and every political system or political conception of justice presupposes a certain conception of the good – it is impossible to have otherwise. That is, there is no such thing as independent political reason over and above all conceptions of right and wrong, good and bad, and justice more generally. (See J. Budziszewski, distinguished professor of Law and Philosophy at the University of Texas, The Line Through The Heart – Natural Law as Fact, Theory, and Sign of Contradiction for an excellent treatment of this). Let me quote from him at slight length:
“… the study of politics is a branch of the study of ethics. This old claim strikes most people as impractical and unrealistic, not to say bizarre. On the contrary, it is utterly hardheaded. What could be more impractical and unrealistic than to imagine that a bad man can be a great statesman, or that a people can have a wholly different government than it deserves? We may look at the matter from another side too. Ethics is the study of the good, and even a corrupt government rests on some corrupt idea of the good–for example, that the good is gaining power, amassing wealth, or protecting the position of the priviledged. The politics of an age may rest on a crumbling foundation derived from a mistaken ethics, but it will have an ethical foundation.” (xi-xii)
What this is meant to demonstrate is that, pace Rawls, there is no political theorizing without a “comprehensive doctrine”. Attempting to have the one without the other merely confuses the one (political theorizing) and distorts the other (“comprehensive doctrine”).
Let me drive home this point further by quoting from another (indeed, extremely prominent and influential) philosopher of law – the distinguished professor of law and legal philosophy at Oxford, John Finnis. From his book Natural Law and Natural Rights (Clarendon Law Series, Oxford University Press) – a text read by every Juris Doctor:
“It is often supposed that an evaluation of law as a type of social institution, if it is to be undertaken at all, must be preceded by a value-free description and analysis of that institution as it exists in fact. But the development of modern jurisprudence suggests, and reflection on the methodology of any social science confirms, that a theorist cannot give a theoretical description and analysis of social facts unless he also participates in the work of evaluation, of understanding what is really good for human persons, and what is really required by practical reasonableness.” (3).
Finnis then proceeds to lay out the moral foundations of political theory and law – at book length.
Now if Finnis, Budziszewski, Plato, Aristotle, Aquinas, Maritain, the myriads of others (such as Alasdair MacIntyre), and myself, are correct in thinking politics a branch of ethics – under the general branch of what used to be termed axiology – then Rawls has mistaken the grounds for a conception of justice. Let one have a political conception, very well and good. But that political conception is either itself a “comprehensive doctrine” – in which case it is in competition with the myriads of others – or it depends for its intelligibility and content upon a “comprehensive doctrine” – in which case it is no better off than, say, a political system such as the Divine Right of Kings.
That it is the former (i.e. it is itself a “comprehensive doctrine”) is suggested by the fact that Rawls holds some other forms of “comprehensive doctrines” to be illegitimate, or unjust – they have no place or can be repressed by the political structure he envisions. Hence, his political conception is discriminating. That is also well and good – every political structure must be discriminating, but that is only because it sees some entities/actions/etc as harmful to the common good (a.k.a. the bonum in communem). It can only see such as harmful if it indeed has a conception of the common good – and that requires an explanation of what good is and what makes the common good be good. That, as John Finnis rightly points out, is why every political conception and system of laws (i.e. system of justice) requires a comprehensive ethical theory underlying it. Rawls adamantly denies having any fundamental “comprehensive doctrines” underlying his theory, and so he must be proposing an alternative “comprehensive doctrine” itself.
Now, it may be stated that, “Comprehensive doctrines do not foster a fair contract in the original position because they presuppose convictions about how society should be run.” As such, Rawls is attempting to create an independent space (hence, the “freestanding” nature of the political conception of justice) for policy, law, and procedure. Fair enough, but not good enough, since it is not entirely independent – Rawls must still discriminate against those “comprehensive doctrines” that do not fit well, or behave well, under his political conception. Hence, Rawls owes us an explanation of just what tolerance means and how any coherent definition of tolerance does not have built in comprehensive notions of what is good, right, bad, and wrong (see Budziszewski’s book, the last chapter, for a very engaging discussion of liberal tolerance and the meaning of tolerance).
Two further possible rejoinders to my concerns are as follows. First, the great variety of “comprehensive doctrines” allowed by the political conception will undoubtedly influence the development of society – in line with the basic principles of justice. No doubt they will, but notice that they must be in line with the basic principles of justice (according to Rawls) in order to do so. This does not guarantee that there will be significant influence, nor does it guarantee that it will be lasting influence – and further still, it does not guarantee that the influence is actually good. The principles are what Rawls expects everyone (who is reasonable) to agree to – highly debatable, but all right. Agreement, however, as every student of philosophy knows is no guarantee of rightness (unless what one thinks the right to be just is agreement – which I submit is ultimately self-defeating). Second, reflective equilibrium is supposed to give order to our considered judgments concerning what is ethical, and this is supposed to take place at the political level through the political conception of justice. I do not doubt that the political order has the ability to change what citizens take to be ethical (laws tend to have a very strong effect in this way – e.g. laws permitting abortion or gay marriage). Nor do I doubt that reflective equilibrium brings order to our ethical beliefs. What I do doubt is that the political conception of justice has a monopoly on this activity, or that it is the best means for it. Every ethical theory, and any rational person, can engage in reflective equilibrium. If the political conception of justice is attempting to implement this en masse to citizens, over time, then how is it differing from other “comprehensive doctrines”, merely by providing a new forum for reflective equilibrium? I submit that it is not different, but rather merely pushes the bump around in the rug.
 Pace is Latin for “with peace to…”
 As James Wroblewski has commented, in a recent discussion.
 Again, thanks to James Wroblewski.
 Indeed, I try to get my students at WMU to engage in it.