[Note: this is the penultimate version of this book review. The ultimate version will appear in the journal The Review of Politics.]
Martin D. Carcieri. Applying Rawls in the Twenty-First Century: Race, Gender, the Drug War, and the Right to Die. New York: Palgrave MacMillan. 2015. 194 pages. 100 USD.
In this provocative book Martin Carcieri attempts to apply John Rawls’s conception of justice – ‘justice as fairness’ – to a number of contemporary political issues. While Rawls’s work in political philosophy has been discussed more than that of any other Anglophone political philosopher of the twentieth century, surprisingly little work has been done in applying his conception of justice to pressing legislative questions. Rawls did sometimes note certain implications of his political principles for public policy. He supported, for instance, the public funding of political campaigns, the provision of health care for all citizens as a basic right, and a right to physician-assisted suicide for terminally ill persons. In recent years, furthermore, there has been an upsurge of interest amongst philosophers, political scientists, and economists in Rawls’s idea of ‘property-owning democracy’ as an alternative to ‘welfare-state capitalism.’ Nonetheless, for those sympathetic to Rawls’s liberal egalitarian conception of justice, more ‘applied’ work needs to be done. This book tries to do some of this work – with mixed results.
Carcieri’s book consists of six chapters. An overview of Rawls’s conception of justice is provided in the first. Chapters two and three apply justice as fairness to some policy questions concerning race, whereas chapter four focuses on a question of ‘professional ethics’ with respect to illicit gender discrimination in hiring. Chapter five argues against the prohibition on the recreational use of marijuana, whereas chapter six defends a limited right to physician-assisted suicide. Throughout the book Carcieri mixes discussion of Rawls’s political philosophy with analyses of American constitutional law, so the book has a decided US focus. Almost half of the book is devoted to endnotes (pp.103-179).
The first chapter does a solid job in outlining some of the main elements of Rawls’s political philosophy (the ‘original position,’ the two principles of justice as fairness, the idea of the ‘basic structure’ of society, the priority of ‘the right’ over ‘the good,’ and so forth). In characterizing Rawls’s conception of justice for readers unfamiliar with it, Carcieri states: “On the conventional continuum of Left to Right, […] Rawls is within the broad liberal Center, although to the Center-Left” (p.8). This is a surprising claim, given that Rawls holds that all forms of welfare-state capitalism are incapable of realizing the two principles of justice. The economic inequality which Rawls thought inevitably would characterize capitalist societies over time prevents them from satisfying justice as fairness. In place of welfare-state capitalism, Rawls endorses two alternative political-economic systems: property-owning democracy and liberal socialism. (See Rawls (2001) Justice as Fairness (Harvard University Press), Part IV (Carcieri very briefly mentions property-owning democracy at p.9).) Both of these regime types are more egalitarian – to the ‘Left’ in economic terms – than the social democracies of contemporary Scandinavia.
Carcieri notes Rawls’s distinction between ‘ideal theory’ and ‘nonideal theory.’ He explains that Rawls’s accounts of civil disobedience (public noncompliance with unjust laws) and ‘militancy’ (secret noncompliance with unjust laws) fall within the latter category (p.6). Surprisingly absent, however, is any mention of Rawls’s idea of a ‘well-ordered society’ – a society with a basic structure that realizes the two principles of justice as fairness, and in which citizens freely cooperate in ensuring that their basic structure complies with those principles over time – and the role that that idea should play in guiding nonideal theory (Rawls (2001), p.13).
Chapters two and three focus on the problem of racial inequality within the US and policies aimed at addressing it. Carcieri holds that a certain form of ‘legislative reparations’ (defined on p.21) can be vindicated on Rawlsian grounds. Such legislation – because it promotes fair equality of opportunity and helps improve the economic condition of the least advantaged within society – can be supported by Rawls’s conception of justice. In contrast, Carcieri contends that race-based affirmative action policies – specifically, policies that allow race to play a role in admissions decisions by public universities – cannot be supported on Rawlsian grounds.
Rather than discuss the details of Carcieri’s arguments against affirmative action, I will comment on an assumption that underpins those arguments. Carcieri notes Rawls’s distinction between ideal and nonideal theory. But he construes this distinction in a novel way. “The former [ideal theory] provides principles and rules that govern domains of activity at the core of civil society, like […] public education,” Carcieri writes, “Nonideal theory, by contrast, provides the guidelines needed to administer domains of state action at the periphery of civil society, at the border of the Hobbesian state of nature” (p.39). So while deviations from the requirements of justice may be permissible or even necessary at the ‘periphery’ – with respect to questions of national security, for instance – such deviations are not permitted within the ‘core’ of civil society. Hence admissions policies at public universities must comply strictly with the requirements of Rawlsian justice.
This way of characterizing the distinction between ideal and nonideal theory is not Rawls’s. In an endnote Carcieri acknowledges as much. “[T]he core/periphery distinction,” he writes, is “parallel to Rawls’s distinction between ideal and nonideal theory” (n.59, p.144, my italics). That acknowledgement aside, though, Carcieri’s discussion in the main text of the book largely – and misleadingly – presents his core/periphery distinction as though it is Rawls’s distinction between ideal and nonideal theory. But Rawls’s theory applies to the entire basic structure – society’s main political and economic institutions understood as an overall system of cooperation. Ideal theory – the idea of a well-ordered society with a basic structure that satisfies the principles of justice – is meant to guide nonideal theory. Nonideal theorizing, such as Rawls’s account of civil disobedience, concerns transitional justice, that is, questions of how to move our existing (nonideal) societies closer to the ideal of a just well-ordered society. According to Rawls, the United States falls short – even at its ‘core’ – of being a just society. (And given developments since Rawls’s death, such as growing economic inequality and the Citizens United v. FEC Supreme Court decision, it is doubtful that the US is moving in a Rawlsian direction.) To assume that the contemporary United States is anything close to being just by Rawlsian standards, as Carcieri seems to do (p.31), conflicts with Rawls’s own comments and his rejection of welfare-state capitalism. In any case, given that (a) the core/periphery distinction is central to Carcieri’s argument against affirmative action, but (b) is not the same thing as Rawls’s ideal/nonideal distinction, much more needs to be said about (a) by Carcieri in order for his arguments to be convincing.
The fourth chapter concerns gender discrimination in hiring by public universities. Readers are asked to imagine a situation in which public universities aggressively but secretly discriminate against male applicants in their hiring decisions. Carcieri asks us to consider what ‘Ed’ – a professor at a public university who is committed to Rawlsian principles – should do. Would Ed be justified in secretly discriminating in favour of male applicants in order to mitigate (at least somewhat) the injustices he witnesses?
I found this chapter to be quite strange. Carcieri appeals to no data to support his characterization of the role of gender in hiring decisions within public universities. Presumably Ed should at least first investigate whether his personal experiences and impressions reflect a more widespread problem? (My own experience of the role of gender in hiring committee decisions within a public university differs from those described in the book.)
Fortunately, the book improves significantly in the final two chapters. Carcieri’s arguments for ending the prohibition on marijuana and for granting citizens seventy-five years or older the right to physician-assisted suicide (a proposal he terms ‘75+’) are generally well presented and convincing. Nonetheless, I think that Carcieri misconstrues some Rawlsian ideas in these chapters. For instance, I think that he incorrectly deploys Rawls’s idea of an ‘overlapping consensus’ (pp. 86) and the 'difference principle' (pp.98-99) in support of his arguments. These are minor quibbles, though, and I think that his main conclusions are correct.
Overall, then, Applying Rawls in the Twenty-First Century is a mixed bag. The arguments against affirmative action rest on a core/periphery distinction that has no basis in Rawls’s theory. The final two chapters on marijuana legalization and a right to physician-assisted suicide, however, are interesting – indeed, I would consider using them in a course on applied political theory.