More on Hayek/Rawls Fusionism

In a comment below, Julian reminds me of Hayek's approving mention of Rawls's method for thinking about principles of justice. This led me to look it up again. It's in Law, Legislation, and Liberty, Volume 2: The Mirage of Social Justice, p. 100:

Before leaving the subject [of 'social' or distributive justice, ideas that Hayek finds muddled and misleading] I want to point out once more that the recognition that in such combinations as 'social', 'economic', 'distributive' or 'retributive' justice the term 'justice' is wholly empty should not lead us to throw the baby out with the bath water. Not only as the basis of the legal rules of just conduct is the justice which the courts of justice administer exceedingly important; there unquestionably also exists a genuine problem of justice in connection with the deliberate design of political institutions, the problem to which Professor John Rawls has recently devoted an important book. [Vol 2 of LL&L was published in 1976.] The fact that I regret and regard as confusing is merely that in this connection he employs the term 'social justice'. But I have no basic quarrel with an author who, before he proceeds to that problem, acknowledges that the task of selecting specific systems or distributions of desired things as just must be 'abandoned as mistaken in principle, and it is, in any case, not capable of a definite answer. Rather the principles of justice define the crucial constraints which institutions and joint activities must satisfy if persons engaging in them are to have no complaints about them. If these constraints are satisfied, the resulting distribution, whatever it is, may be accepted as just (or at least not unjust).' This is more or less what I have been trying to argue in this chapter.

The Rawls quote is from his essay “Constitutional Liberty and the Concept of Justice” in Nomos IV, Justice, 1963, p. 102. Hayek follows up the citation in his as always illuminating footnotes thus:

. . . where the passage quoted is preceded by the statement that 'It is the system of institutions which has to be judged and judged from a general point of view.' I am not aware that Professor Rawls' later more widely read work A Theory of Justice (Harvard, 1971) contains a comparatively clear statement of the main point, which may explain why this work seems often, but as it appears to me wrongly, top have been interpret support to socialist demands, e.g., by Daniel Bell, 'On Meritocracy and Equality', Public Interest, Autumn 1972, p. 72, who describes Rawls' theory as 'the most comprehensive effort in modern philosophy to justify a socialistic ethic.'

Hayek is right. Rawls, at least the early Rawls, seems to me to be nowhere near a socialist or even a continental-style social democrat. He strikes me as a fairly traditional classical liberal working to reconcile the contemporary game-theoretic conception of rational choice with traditional contractarian theorizing and Kant.

Hayek somewhat earlier cites another passage from the same Rawls Nomos essay (which I really must read!) that casts Rawls in a similar classical liberal light. Here's Rawls:

If one assumes that law and government effectively act to keep markets competitive, resources fully employed, property and wealth widely distributed over time, and maintains a reasonable social minimum, then, if there is equality of opportunity, the resulting distribution will be just or at least not unjust. It will have resulted from the workings of a just system . . . a social minimum is simply a form of rational insurance and prudence.

Here, as in other places, Rawls seems to characterize the social minimum, the safety net, as the price the wealthier must prudently pay for the stability of the order from which they benefit. At other times, Rawls makes more of the idea of fairness-as-reciprocity as a core aspect of the sense of justice, and argues that the motivation to pay into the treasury to fund the safety net is not merely prudential, but is rooted in a more distinctively moral motivation. I think this is one of many instances where Rawls's good, clear rat choice contractarianism comes into tension with his penchant for Kantian moral psychology.

My total baseless conjecture is that Rawls's students and some colleagues, who were far to Rawls's left politically, slowly drew him further left toward a more euro-style social democrat point of view. I'm told that Rawls was a model of intellectual openness, not at all dogmatic, which would make him especially prone to reciprocal influence from his interlocutors. Early Rawls's quasi-positivist naturalism and classical contractarianism was discouraged by his milieu while his Kantianism, and especially his Kantian moral psychology, was encouraged. So he abandons the idea that the theory of justice is a part of the theory of rational choice.

Rawls's students seem to be far more vehement in their opposition to Humean moral psychology than in their interest in the contractarian conception of a social order. They seem more interested in coming up with an arguments to the effect that we're obliged to pay taxes even if we don't want to (the claims of justice are rationally INESCAPABLE, dammit!) than in exploring the general nature of a theory that could justify something like taxation in terms of its role in maintaining a viable social order. They seem to have co-opted a lot of Rawls's language, and methodological apparatus, but left most of his core contractarian logic behind.

So here's my unanswerable question–get out your possible world telescopes: What does the late Rawls look like in a world in which he had folks like Nozick, Lomasky, and Schmidtz as his prominent students, rather than folks like, say, Scanlon, Cohen, Estlund, and Korsgaard? Does he look more like the Rawls that Hayek sees and likes?

  • “It’s stupid, but politics is stupid.”

    No, it’s the Republicans who are stupid.

    What’s more, I’d wager they lower the average I.Q. of all Americans by at least ten points.

  • Mark G

    This post shows little understanding of the Supreme Court’s role. Picking out which facts in the “situation” are and are not “salient” is the job of the trial judge, who listens to evidence and makes findings. The Supreme Court generally must accept the trial judge’s findings as establishing the factual situation.

    Moreover, the Supreme Court’s most frequent task is to interpret statutes passed by congress. For that job, I want a justice who’s focused on what congress intended, not what the she personally feels the law should be. What is the point of Congress negotiating over the precise wording of a statute, if the Court is going to disregard those words and impose its own policy preferences? If Congress wants to pass a cold-hearted (but constitutional) law, the Court’s job is to apply it to achieve its intended cold-hearted ends, not re-write it to conform to a judge’s empathetic views.

    Really, competing versions of “empathy” legitimately come into play only in a few corners of constitutional law, such as the Amendments governing “unreasonable” seaches or “cruel and unsusal” punisment, or the right to privacy. For those questions, I say the most important brand of “empathy” is an openness to the concerns of all the players on both sides of the issue. A judge whose idea of empathy is “my race/gender/interest group should always win” is a bad judge. I also want a judge who will give due weight to broad consensus views, if they exist. Only after those two criteria are met, and only for a handful of the Court’s cases, I could see some limited value in trying to achieve diversity of viewpoint on the Court.

    I don’t think gender is a reliable predictor of the viewpoint a justice will bring to constitutional issues. Ginsberg (voting with one or more male justices) often disagreed with O’Connor. The best way to achieve diversity is based on career path: I want one justice who spent years defending criminals, one who prosecuted them, a plaintiff’s lawyer, a corporate lawyer, and at least one who served in Congress or a high-level white house post. But if I can’t have that, give me 9 people who all feel deeply that it’s their job to interpret the law, not make it up.

  • I agree that “judicial activism” isn’t a terribly useful term, not because it’s meaningless, but because like “fascism” it’s so, so often selectively applied.

    That said, it does seems to me that the left has enjoyed a pattern of judges trumping the letter of the law (statutory or constitutional) by making a bogus claim that a judgment call needs to be made, and following up with a leftist judgment call. The right certainly does this sometimes. Parts of the right circling around Bork even seem to be scheming to run the pattern in reverse. So far, though, the right doesn’t seem to have succeeded to nearly the same extent as the left

    That doesn’t mean the Right doesn’t have its own history of using powerful offices to violate the letter of the law. If you want to feel more empathy about how libertarians (and various non-Bork-ish Republicans) react to such a pattern, try asking the leftist who influences you the most how he or she feels about Reagan’s interpretation of arms control treaties, and of international law and statutory law limiting things like the Contras. And, similarly, about Bush’s interpretation of laws, constitutions and treaties regarding torture, detentions, wiretapping, etc.

    (At Cornell, a philosophy graduate student earnestly scolded me for being so naive, in my complaints about New Deal jurisprudence, because documents cannot have absolute meaning. An unanswerable argument…until the next time we met, when he incautiously led with his chin by choosing to complain about how Star Wars clearly violated arms control treaties. It had clearly never occurred to him that outside the philosophy departmental echo chamber, it would be mighty hard to defend both positions simultaneously.)

    It really does seem to me that “empathy” here is primarily a recognizable code word for a pattern of leftist judges letting leftist priorities override the letter of the law. Thus, I find it creepy in about the same way that I would find it if some passionately Republican body empowered to appoint our next President started talking about selecting candidates based on seeming code for willfully ignoring clear statutory law, treaties, and the constitution: candidates with “vital executive courage” or some such thing.

    If Obama had 6 or 36 months ago praised Rose Bird for the empathy she had demonstrated on death penalty cases, it might have have been politically unwise, but would it have been politically unclear?

    Secondarily, “empathy” can mean the style of decisionmaking that has apparently given us modern used-to-be-contract tort law. As I understand it, a lot of contract law is traditionally judicial precedent anyway, so judges tweaking it seems a lot less scarily unsound than, say, reading new fine print (abortion rights! but no pot or homosexual or prostitution rights!) into a penumbra, or discovering that the New Deal was constitutional. But the result of the new precedents doesn’t seem particularly good. In contracts in particular, unthinking populists and thinking tort lawyers do of course love their big jackpots. But thoughtful leftists should be disturbed by industries which have been severely screwed up, notably manufacture and development of vaccines.

    Tertiarily “empathy” can mean, as you say, empathy with one’s own ethnic group and gender. Nothing could be wrong with that! In fact, as they say, what could possibly go wrong? Of course, it is lucky that this value was not discovered a year ago, or else it might have encouraged men or whites to rationalize voting against Clinton or Obama, which would have been wrong. But now that it has been discovered and happens to be convenient, the principle should of course be applied vigorously. We can worry about putting the genie back in the bottle at some time in the future, if it ever happens that some election draws nearer.

    • nobody.really

      “[E]mpathy” can mean, as you say, empathy with one’s own ethnic group and gender. Nothing could be wrong with that! In fact, as they say, what could possibly go wrong? Of course, it is lucky that this value was not discovered a year ago, or else it might have encouraged men or whites to rationalize voting against Clinton or Obama….

      How so? I’m a white guy, and I certain believed that either Clinton or Obama would better promote my long-term self-interest than Bush or his endorsed successor would have. I don’t understand “empathy” to mean tribalism.

  • Mike Rappaport

    I really like your blog, but your post here is pretty weak in my view. Your first paragraph asserts, with no evidence whatsoever, that emphathy is short for more diversity on the court. The rest of the post goes off on justifying diversity.

    But I believe you are pretty clearly mistaken. Within constitutional law discourse, empathy is about departing from the letter of the law to promote substantive results that are thought to be justified by our concern for others. This is the language of Justice Brennan.

    Do you have any evidence to support your first paragraph claim?

  • Falsh Farmer

    You don’t have to do this. You’re already married.

  • Mark G

    Man, Will — Tough audience you have here!

  • Susan

    We need to keep Will honest, though he may be sleeping on the couch a few nights a week…

  • Alz

    We don’t need empathy, we need people who will strive to interpret and judge the issue at hand according to the Constitution – no more, no less.

    Otherwise, why bother looking at the Constitution?

  • PMP

    Will, your comment goes wrong in the very first paragraph and then you proceed at 1000 miles an hour on the wrong track. Let me see if I can help.

    Here’s the code: “Empathy” means that the weaker party is always right in every case before the Supreme Court, unless the Federal Government is being sued. It’s class analysis. There are more of us little guys and the courts should favor us.

    This is one of the guiding lights of President Obama’s administration.

    Obama won’t stop until he’s hacked the golden goose into a thousand bloody slivers.

  • IOZ

    Will, your comments section is the cat’s pajamas. Seems like you’ve managed to collect a fine cross-section of followers who put in the bookmark just before Article 3 and switched off the lamp for the night.

  • This post seems either astonishingly naive or breathtakingly cynical. It reads like something written by an alien who has been given an English dictionary but has been denied any knowledge of what American political factions are like or how they use language. When John McCain was attacking self-interest and material prosperity and carrying on about “sacrifice,” “service,” and “a cause larger then yourself,” and so on, did you think he just meant that you should give a few bucks to the local soup kitchen?

  • What ’empathy’ gives to jurisprudence is unlimited subjectivity. If as a jurist I am empathetic to Buddhism’s life suffering or Marx’s eternal class struggle or Hitler’s quest for purification of the Aryan race, then my decisions will track my empathy, NOT the intent of the Framers. Justice Kennedy’s citation of foreign laws for American decisions is a case of empathy at work.

    If empathy is to be Mr. Obama’s standard, then we’ll get the feel-good, nice-nice, maximum good for the maximum number decisions we deserve. Note however, that “justice” becomes lost, not found, in the slop of empathy.

    • Utter BS. Citation of foreign laws has noting to do with empathy and more to do with the practice of common law. What are the precedents, what are the principles in application, is the case relevant, etc.

      With regards to empathy, I’m with Will here. Empathy is about understanding the cases in such a way that the relevant facts are taken into account.

      • Empathizer

        It is apparent that neither you nor Will have the slightest clue about how appellate courts actually operate in this country. The Supreme Court is an appellate body, not a district court where “relevant facts are taken into account.” And even if it were, the only possible source of empathy could properly come from the jury, not the judge. There is a reason juries are not part of the appellate process – an appeals court is not a “fact finder.” We are getting into basic first year con law/civ pro stuff here. I’m actually a bit disappointed that this softball was whiffed so badly on an otherwise fantastic and thought-provoking blog.

        • Greg N.

          Empathizer,

          What of the appellate court’s role in determining the tests to be applied by lower courts? For instance, in 4th Amendment law courts are to look at the “totality of the circumstances,” in determining, say, whether a seizure of the person has occurred or whether a police encounter is “mere contact.” Appellate courts create broad guidelines for lower courts to follow, and often give examples of “circumstances” that are “relevant” for lower courts to consider when making their judgments on a motion to suppress (or whatever). Isn’t it possible that a judge’s experiences may help shape the kinds of “circumstances” that are “relevant” for that kind of analysis?

        • I wasn’t talking legalese, since I think the deeper, philosophical perspective is more illuminating. You’ll have to believe me that I understand pretty well how the whole thing actually works. Some of my best friends (and former roomates) clerked in the various appeals courts. And I’ve played basketball in the Supreme Court gym, which is obviously qualifies me to speak on matters of the judiciary.

          • How’d you get to play ball in the SC gym?

          • One of my housemates at the time was clerking for Roberts and got us in. Singular DC experience, like bowling at the White House.

          • Did you play any of the Justices? If so, did you win? And, if so, when you won, did you yell something ferociously at them in triumph?

    • Anonymous

      That’s exactly the opposite of how law ought to work. Governments ought to be governments of law, not of men. In cases where the lawmakers are still alive, we do not go back to them to ask to clarify disagreements as to the meaning, but we have the letter of the law stand on its own merit. The same is true in situations where the lawmakers are dead. Except in the most linguistic sense, we should not care one slightest bit what the founding fathers would have thought, but what the words mean. And many of these words are in fact rather complicated concepts, or which refer to entities external to the constitution which may change (such as what is “unusual”), and for many of these concepts there is similar language in other courts to which we may refer to their expertise. And, in cases where the language is simply hopelessly ambiguous, then it might be preferable to not interpret the law in a way which actively causes harm.

  • FGH

    Check out the ever-resourceful Stuart Taylor’s take on this topic in National Journal:

    http://ninthjustice.nationaljournal.com/2009/05/should-justice-be-driven.php

  • uknowbetter

    Who needs logic, facts, and the law when you can have FEELINGS?

    That’s exactly the attitude the Supreme Court needs. NOT.

  • Sargent

    Federalist No.10:

    “Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true.”

    Our evidence has grown since then, enough to make Will’s post “Uncontroversial” as a description of the universe.

  • I’m with several of the other commenters in that my problem is so much with state intervention in such a situation per se, as opposed to the particular form it took in this case. If things at the compound really were bad enough that such drastic measures were warranted, then perhaps they never should have been allowed to get to such a point in the first place. Once they did, though, the state had no right to break up these families; I have little doubt that the government’s meddling – e.g., putting these brainwashed/sheltered/etc. kids in public schools, not to mention foster care – will do far more harm than good.