For a Kinder, Gentler Society
Free and Equal: Rawls’ Theory of Justice and Political Reform
  • Joseph Grcic
Reviews Table of Contents Introduction «Back
Free and Equal:  Rawls’ Theory of Justice and Political Reform.
Sound Bite
The ideas of John Rawls have revolutionized the shape and content of much of contemporary political and social philosophy. His A Theory of Justice (1971) and Political Liberalism, (1993) among other works, has been a rich source of ideas which continue to influence contemporary discussions about justice and politics. Although much has been written on the political philosophy of Rawls, there has not been any in-depth study focused on the implications of the ideas of Rawls for contemporary existing democracies, especially the United States today.

About the Author

Dr. Grcic is a professor of philosophy at Indiana State University. His other published books include: Facing Reality; Moral Choices, Law, Politics and Society; Ethics and Political Theory; Logic and Life; and Ethics: Theory and Practice. He has presented invited lectures to the American Philosophical Association, World Congress of Philosophy, International Association for Philosophy of Law and Social Philosophy and has published articles in the Journal of Value Inquiry, International Journal of Applied Philosophy, Kant-Studien, Journal of Social Philosophy, Philosophy and Public Policy Quarterly, and other academic journals. Dr. Grcic is also a contributor to the Encyclopedia of Philosophy (second ed.).

About the Book
Drawing on some of John Rawls' earlier work, the author offers a detailed exploration of how Rawlsian ideas impact the basic elements of Western democracies and the US Constitution and discusses the changes that would be necessary to make modern...
Drawing on some of John Rawls' earlier work, the author offers a detailed exploration of how Rawlsian ideas impact the basic elements of Western democracies and the US Constitution and discusses the changes that would be necessary to make modern democracies more consistent with the basic values of liberal equality as understood by Rawls. The ideas of justice, equality, fairness, liberty, public reason, stability, the rule of law and other related concepts are the bases of the analysis of the US Constitution and suggestions for reform presented here.

For many people, the American Dream has come to seem more like a vague hope than a real possibility. It is becoming increasingly clear that our society is faced with profound social and political problems which need to be confronted and addressed. Some of these problems are described in this book, and the solutions defended here are based on a deeper understanding of the underlying principles of the Constitution informed by the ideas of the philosopher John Rawls.

This book is intended for the general educated public and college classrooms in political philosophy, philosophy of law, American government.
Preface
The assumption of this work is in agreement with what President Bill Clinton said in his first inaugural address in 1993, “There is nothing wrong with America that can’t be cured by what is right with America.” Some things that I consider right...
The assumption of this work is in agreement with what President Bill Clinton said in his first inaugural address in 1993, “There is nothing wrong with America that can’t be cured by what is right with America.” Some things that I consider right with America are the fundamental ideas of the US Constitution and the ideas of the philosopher John Rawls as I understand them.

Rawls has been widely considered one of the most important philosophers of the 20th century whose theory of justice develops the revolutionary ideas of human equality and liberty proposed by the founders of America. The goal of this study is to show that the full implementation of the ideals informing the US Constitution and which John Rawls (and other political theorists) have defended and expanded, would go a long way in solving most, if not all, of the problems mentioned above and preventing them from reoccurring in the future, at least to the same degree.

This does not mean that I accept all of the elements of Rawls’ theory because I do not. Nor is Rawls’ theory strictly needed to defend the basic ideas of this study which I believe can be defended on the grounds of the fundamental principles found in the Constitution and the Declaration of Independence alone. However, I believe the basic outlines of Rawls’ theory are plausible and that his ideas shed light on the debates about the essential meaning for the Constitution...


Table of Contents
Chapter 1. In the introduction I present an overview of American society and the social and political problems which exist today. I then present John Rawls' theory and major criticis

Chapter 1.

In the introduction I present an overview of American society and the social and political problems which exist today. I then present John Rawls' theory and major criticisms of it. I claim that although no theory is perfect, Rawls' theory of justice is the most rationally compelling of the available alternative theories of justice which can be applied to solve the major problems which afflict the US today. I examine why Rawls' theory is superior to utilitarianism, libertarianism and perfectionism and also compare it to Marxism. I try to show how his insights can be used to make modern democracies and the US Constitution more consistent with the egalitarian principles which inform it. I show how Rawls' ideal of persons as free and equal can be actualized in modern democracies and how these basic changes would more fully articulate the meaning of human dignity.

Chapter 2. Empower the Jury

The trial is central to the determination of justice but its form continues to evolve. I argue that the current structure of the trial is not appropriately designed to produce the desired results, finding the guilty, guilty and the innocent, innocent, in an efficient manner and that the current jury system does not maximally reflect the values implicit in the institution nor the political paradigm of liberal democracy in which it is embedded. I argue that the jury must be given a greater and more active role in the trial. Specifically, I claim that the jury should be allowed to call its own witnesses and ask questions of all the parties involved in the trial prior to deciding the guilt or innocence of the accused. I use Rawls' ideas of fairness, persons as free and equal and fair equality of opportunity as key components of this argument.

Chapter 3.  Abolish Double Jeopardy

Another key element of the trial and criminal justice system is the fifth amendment of the constitution which states that no one will be tried twice or put in double jeopardy for the same crime. The purpose of the rule was to prevent the government from abusing the rights of citizens through repeated trials for the same offense. I provide several arguments against this rule based on Rawls idea of fairness, the rule of law and other concepts. I argue that the rule against double jeopardy violates fairness by allowing some criminals to go unpunished. Second, I claim the rule undermines rule of law and is a violation of the due process. Finally, I argue that potential abuses of allowing double jeopardy can be prevented by strengthening and reforming the use of the grand jury.

Chapter 4. The Right to a Free Lawyer

The trial is part of a legal system which has become so vast and complex that it requires experts to understand and use it effectively. The legal profession plays a pivotal role in the determination of justice but the quality of legal representation is not equally available across the social classes. This is due to basically two factors, individual and social: individual differences in terms of intelligence, experience or personal moral characteristics such as dedication and honesty and differences in socioeconomic background which gives individuals differential entry into colleges and law schools of varying quality and prestige. Although there are public defenders available, they are usually overworked and have a lesser quality of legal education. The wealthy have access to the highest expertise of legal representation as well as other services of investigators, researchers and the like. I argue on the basis of Rawls idea of procedural justice and fair equality of opportunity that the legal profession as a whole should no longer be a service sold on the free market for a fee. Rather, all attorneys should be government employees available to the public free of charge. Lawyers would be assigned cases on the basis of their expertise and availability.

Chapter 5.Abolish the Electoral College

The US Constitution specifies that the President of the US is not to be chosen directly by the people but by what has come to be called the electoral college. The electoral college is constituted by electors chosen by the legislatures of each state and the District of Columbia. The number of electors is equal to the number of senators and representatives the state has in Congress. I claim that the electoral college is an undemocratic institution which should be abolished because it is inconsistent with the underlying principles of the constitution and the basic ideas of John Rawls' theory of justice. The electoral college introduces an undefined variable into the basic structure and violates the Rawlsian idea of a stable society and public reason. A stable society, in brief, is a society which is structured in a manner consistent with human nature and generates the virtues needed for its perpetuation and social justice. Rawls idea of public reason specifies that public discourse must be structured so that it only involves constitutional essentials of the basic structure constitutive of the overlapping consensus of reasonable comprehensive doctrines. Since the electoral college need not respect the majority vote of the citizenry nor publicly justify its vote, it violates the idea of public reason of citizens as free and equal and political discourse must be public and consistent with the principles implicit in the basic structure. It also undermines stability since it is not sufficiently structured to necessitate procedures consistent with the principles of the basic structure.

Chapter 6. Abolish the Senate

The US Senate as currently defined is inconsistent with the basic principles of equality as expressed and implied in the Constitution, many Supreme court rulings and as defended by Rawls. Current projections show that by 2042 the current white majority population will be in the minority but will still have majority power if the Senate continues to exist. These considerations clearly point to the abolition or the fundamental restructuring of the Senate.

Chapter 7. Limit the Power of the Supreme Court: Judicial Review

The US Supreme Court is the most powerful court in the world. It is not the most powerful just because it is the highest court of the most powerful state in the world but primarily because of the power of judicial review. The power of judicial review, generally considered to have been established by Marbury V. Madison (1803), is the sweeping power to declare unconstitutional acts of state legislatures, Congress, state and federal courts and acts of the President. The argument defended in this chapter is that judicial review and other factors give the Supreme Court excessive power not explicitly justified in the Constitution. This power needs to be curbed by requiring that court decision, assuming the current number of nine justices, consist of a super majority of a minimum of six votes, not the current five, to decide cases in a constitutionally normative manner. The first argument for the rule of 6/3 is based on the fact that the Constitution does not specify the number of justices the Supreme Court must have nor does it specify the kind of majority required to definitively decide cases. Moreover, the history of decision making in the Supreme Court shows it to be an evolving practice. The second argument for the 6/3 rule concerns the nature of the constitution. Since, as I argue, the constitution is an abstract, vague and incomplete document which needs interpretation, an interpretation is, in reality, a form of constitutional amendment. That is, to interpret is to add meaning and to add meaning is, in effect, to change the meaning of the constitution, which is what an amendment does. Since it is in its practical implications, an amendment, it needs to follow the constitutional requirements for an amendment (Article V) which is a 2/3 vote of Congress (and 3/4 of the states) which translates into a 6/3 vote, given nine justices.

Chapter 8. Abolish Lifetime Appointment of Supreme Court Justices

Currently justices to the US Supreme Court are given lifetime appointments to serve on the court. I argue that the independence of the judiciary is important but that the practice of lifetime tenure of judges is irrational and violates the rule of law, the ideal of meritocracy, and the Rawlsian ideas of procedural justice. I contend that lifetime appointment of Supreme Court judges should be eliminated and replaced by appointments limited to a set number of years.

Chapter 9. Abolish Presidential Pardon

The constitution provides that: The President ...shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. A pardon removes any possibility of punishment for crimes committed against the United States for the person receiving the pardon and cannot be reversed. The pardon can be given before indictment, during prosecution or after conviction and extends to every type of offence against the United States including civil and criminal felonies, misdemeanors, imprisonment, fines, penalties, forfeitures and even treason. The president also has the power to commute sentences or substitute a lesser punishment. I claim that the presidential pardon is a remnant of a theocratic political paradigm such as the divine right of kings that must be abolished. More specifically, I argue that it is inconsistent with the underlying principles of the constitution, namely, that it is a violation of the rule of law, equal protection of the laws, due process and the separation of powers.

Chapter 10. Expand the Right to Run for Political Office: The Right to Political Leave

For Rawls, democracy is defined as a political structure where, among other elements, free and equal persons freely decide who has political power and how they are to exercise that power. Rawls also believes that political equality of rights is compatible with economic inequality of income and wealth. I believe that Rawls' proposals for reconciling economic inequality and political equality are inadequate and incomplete. Rawls' two principles of justice, and especially the difference principle, are meant to keep economic differences between social classes at the minimum without reducing economic efficiency. Economic efficiency Rawls believes requires economic incentives such as profit and wealth to encourage economic investment and productivity. The principle states that differences in wealth are to be justified only if they help the least advantaged, the poorest members of society. It is these least advantaged, whether due to ignorance, illness or poverty, who also have a lesser worth of the basic political liberties. They cannot participate in the political process equally with those better educated and wealthier who can bear the costs of running for public office and whose knowledge and free speech is far more effective than those who are poor and not as well connected. The proper implementation of the two principles of Rawls would necessitate certain social reforms. He argues that these reforms must include that political parties must be kept "independent of large concentrations of private economic and social power."(PL328) I believe this measure is insufficient and does not go far enough in providing for the equal worth of liberty. I argue that reconciliation of equal political rights and economic inequality would require far more radical structural changes in the political and economic system. Among other reforms, I believe what is needed is the implementation of the right to what I call "political leave." This is the right of any adult to be a candidate for public office, the right to have the campaign publicly funded and the right to return to one's place of employment (or equivalent employment) at the end of the campaign or term in office. I believe this reform, if realized, would end the domination of political elections by the social and economic elite who unfairly and overwhelmingly constitute the political class. This reform would amount to an extension to Rawls idea of fair equality of opportunity which is needed for the safeguarding of equal rights.

Chapter 11. Abolish Private Money in Elections

I argue that the current campaign finance reforms do not go far enough to provide what Rawls calls the equal worth of liberty required by his theory. I claim that the current law would need to change to virtually prohibit the role of private money in election campaigns. But this is enough to provide for the equal worth of liberty, what is needed is what I call political leave.

Chapter 12. Democratize the Corporation

There have been several Marxist criticism of Rawls and Rawls has responded to some of them in his later works. Rawls has stated that capitalism and socialism are both compatible with his theory and in this chapter I argue his theory would justify a greater empowerment of worker rights. I argue that a moral corporation, just like a moral person, must have a well formed conscience, and that for a corporation to have a conscience it must be democratized so that workers, together with stockholders and the community, run the corporation. This institutional structure would actualize Rawls theory of justice more fully than the current corporate management structure. I also examine Milton Friedman's critique of this type of corporate structure and refute them. Conclusion These implications of Rawls' theory show the power of his ideas and highlight many problems and difficulties with many democratic systems. I believe the implementation of these reforms would help actualize the democratic values which inform the constitution and make the document more consistent overall. The actualization of Rawls' ideal of citizens as free and equal has a way to go but it is a journey we should be willing to make. Losing what Rawls calls the lottery of life should not have the impact it still has on the opportunities of many people all over the world.

 


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Pages 244
Year: 2011
LC Classification: JC599.U5G688 2011
Dewey code: 320.01'1--dc23
BISAC: POL040030 POLITICAL SCIENCE / Government / Judicial Branch
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ISBN: 978-0-87586-888-2
Price: USD 23.95
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