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Rawls's juridical constructivism revisited

Priority of law and rights over ideas of the good
Petar Popović

Abstract

This paper offers an in-depth analysis of the concepts of law and rights in John Rawls’s political conception of justice. After consulting Rawls’s texts for his account of law and rights, as well as the secondary literature on these texts, the meta-juridical foundation of the Rawlsian concepts of law and rights is articulated. I suggest that Rawls’s argument for the priority of right over ideas of the good is central to an adequate understanding of Rawlsian juridical constructivism. I then explore Rawls’s conception of what may be referred to as “political natural rights”, especially regarding certain inadequacies in Ronald Dworkin’s and Rex Martin’s assessment of the Rawlsian structural locus and origin of these rights. The paper concludes with an evaluation of the place of Rawls’s concepts of law and rights on the conceptual map of contemporary juridical-philosophical debates.

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1 Introduction

  • 1 Dworkin 2004: 1405.

1In the words of the legal philosopher Ronald Dworkin (1931-2013), “after all the books, all the footnotes, all the wonderful discussions, we are only just beginning to grasp how much we have to learn from that man”.1 Similar personal reflections are not infrequent in Dworkin’s texts, and this one was written with the American political philosopher John Rawls (1921-2002) in mind. Each paper seeking to analyze Rawls’s thought simultaneously encounters two prima facie contrasting, but ultimately compatible challenges: every main topic from Rawls’s texts is already well-researched in the secondary literature. Nonetheless, many new aspects of these topics can still be examined from the perspective of Rawls’s original texts. This article explores one such novel aspect of a rather significant question relative to legal-philosophical arguments in Rawls’s work: how is the foundational moment of the notion of law – either in the sense of the law as an institution (i.e., the systemic meaning of law), or in the sense of the juridical meaning of the rights of persons – conceptualized in Rawls’s thought?

  • 2 See Reidy 2015: 419. “No theorist has made a greater contribution to legal philosophy in modern tim (...)
  • 3 Martin 1985: 1-44; Fried 1972: 1697.

2There is overall agreement in legal theory, and to a certain extent in contemporary legal culture, that although Rawls’s thought predominantly pertains to political philosophy it also intersects with legal philosophy,2 and contains important elements for an elaboration of a theory on the rights of persons.3 The intersection of legal and political philosophy in Rawls has in theory already been analyzed to a certain extent, although it is evident that developments in the secondary literature relative to this intersection are rather modest in comparison to other topics from Rawls’s opus. A rereading of the relevant elements of this analysis constitutes the starting point of this paper.

3Thus, in the first section of this article, I revisit Rawls’s texts wherein he outlines his account of law and rights, along with the secondary literature on these texts. However, I would like to broaden the exegesis of Rawls’s explicit mentions of law and rights. My main thesis is that the intersection between Rawls’s political-philosophical framework and his conception of law and rights is mostly implicit in his texts. The central goal of this paper, then, is to make explicit the claims that constitute the foundation of Rawls’s conception of law and rights by extrapolating their essential features from the context of his meta-juridical political conception of justice.

4In the course of this analysis, it will become clear that Rawls’s fundamental idea of the priority of right over the ideas of the good represents a crucial element for understanding the foundational moment of his conception of law and rights, as well as for an accurate grasp of the arguments of both the supporters of his notion of law and its critics. Once the connection between his idea of the primacy of right over the ideas of the good and the peculiar constructivist features of his conception of law and rights is established, it becomes evident that Rawls considers the nature of law to be both designed by the overarching idea of the primacy of right and essentially detached from conceptions of the good.

5I will then argue that from these premises Rawls simultaneously (1) claims that law and legal rights have no necessary connection with the ideas of the good, and (2) advocates the existence of certain political natural rights that are prior to the law. This cluster of claims positions Rawls’s account of law and rights in a somewhat peculiar structural locus on the conceptual legal-philosophical map of basic juridical phenomena. Rawls’s approach may be said to possess the elements of a “minimalist” natural law theory, of legal conventionalism, and of the artifactual legal theory, and may even be said to endorse a form of the positivistic claim for the essential separation between the concept of law and substantive moral values. Nonetheless, I will present reasons that suggest that his account represents a rather original blend of a constructivist conception of law and a singular pre-legal status of sui generis natural rights describable only in terms of Rawlsian political morality. In addition, I will argue that two of the most prominent commentators on Rawls’s conception of rights, Dworkin and Rex Martin, provide inadequate accounts of the exact level on which Rawlsian natural rights emerge within the whole schema of his political conception of justice.

6The precise comprehension of the Rawlsian concepts of law and rights is crucial not only for the purposes of clarifying certain intra-systemic nuances of Rawls’s thought, but also, and especially, for understanding the practical or institutional embodiments of his assessment of the function of these juridical phenomena within the social context that his political and legal philosophy directly addressed. In this sense, I intend to repristinate Rawls’s original ideas as closely as possible, while also providing his commentators with a framework that they may further develop according to their own axiological evaluations.

  • 4 Rawls describes the aforementioned social-cultural context and advocates his assessment of its like (...)
  • 5 For Rawls’s formulations of this question, see Rawls 1971: 3-6; Rawls 2005: 3-4; Rawls 1999a: 131-1 (...)

7Each academic effort to revisit Rawls’s work is, generally speaking, justified by the fact that the circumstances described in the basic question of his political philosophy quite realistically mirror the current social-cultural context of the quest for justice in many political societies, a context which may reasonably be expected to persist at least in the near future.4 The basic question of his political philosophy may be formulated in the following way: what are the most appropriate principles of justice that specify the fair terms of social cooperation between citizens regarded as free and equal in a democratic society that is profoundly marked by a reasonable pluralism of irreconcilable religious, philosophical, and morally comprehensive doctrines?5

  • 6 I am, of course, aware of the fact that Rawls’s thought underwent, according to his own admission, (...)

8The concepts of law and rights certainly constitute an essential aspect of the answer to this question. For this reason, it is imperative to understand precisely what it is that we should, in Dworkin’s words, “learn” from Rawls to be able to support this “new knowledge” or, alternatively, to adequately formulate a potentially critical stance with regard to Rawls’s proposals. This paper therefore focuses exclusively on the part of Rawls’s argumentation that is sufficient for an adequate understanding of his conception of law and rights.6 An all-encompassing presentation of the fundamental ideas of Rawls’s system thus exceeds the immediate scope of this work. The reader not familiar with those basic premises of Rawls’s thought that are inessential for understanding my present line of argument may consult some of his relevant texts on those premises, most of which are occasionally highlighted in the footnotes.

2 Rawls’s conception of law and rights according to his original texts and their interpretation in theory

  • 7 “Rawls’s book [A Theory of Justice] is widely believed to have significant bearing on the philosoph (...)
  • 8 Martin 1985: 26. Martin adds that Rawls “does not even attempt an analysis of the concept [of right (...)
  • 9 Macleod 2015: 731.
  • 10 Fried 1972: 1697.
  • 11 Rawls 1971: 235. This definition is from the section of A Theory of Justice entitled “The Rule of L (...)

9In the preface to the only book entirely dedicated to Rawls’s conception of law, Rex Martin highlights the fact that an in-depth, systematic discussion on the conception of law or rights is almost entirely absent from Rawls’s texts.7 Various commentators on Rawls’s texts report that his explicit account of the phenomena of law and rights is “opaque”,8 “expressed obliquely”,9 or “surprisingly meager”.10 On one rare occasion where he does present a fully developed argument on the concept of law, Rawls defines the legal system as “a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social cooperation”.11

  • 12 See Matulović 1996: 17, 113-145, 276, 342-343. For an English presentation of Matulović’s work on R (...)
  • 13 See Rawls 1971: 195-201. For Rawls’s subsequent treatment of some of the arguments pertaining to wh (...)

10Although his treatment of the rights of persons, stratified across the various levels of his theory, is far more complex and frequent than his arguments on legal norms and legal orders, Rawls never really defines rights. Miomir Matulović has categorized, with great precision, the various levels at which Rawls mentions, or in some way provides, a theoretical justification of the rights of persons.12 These levels roughly correspond to what Rawls labels as the “four-stage sequence” of viewpoints from which the adequate application, or the correct institutional mirroring, of his conception of justice is assessed.13 The relevant levels (or roughly, sequences) may be enumerated according to their hierarchical position in his theory, from top to bottom, as follows: the level of the original position on which the agreement on the basic principles of justice is achieved, the level of the basic structure of society, the constitutional level, the level of the creation and application of laws.

  • 14 Rawls 1971: 136-142; Rawls 2005: 23-24.

11In Rawls’s system, the original position is a fair standpoint from which, in the context of social disagreement regarding the impact of visions of the good on democratic institutions, the principles of justice are agreed upon. This is done through the construction of an imaginary social-contract position in which each citizen has their own unique representative (each citizen is represented by one “party”, a sui generis avatar) who participates in the negotiations with other parties regarding the principles of justice. One of the specificities of the original position is reflected in the fact that real citizens’ philosophical, moral, or religious worldviews and visions of the good, along with all potentially disadvantageous aspects of their real concrete existence and social position, are placed behind the so-called veil of ignorance and are thereby unavailable to their parties (or representatives).14

  • 15 “Not only do the parties protect their basic rights [in the original position] but they insure them (...)
  • 16 Rawls 1971: 92; Rawls 2005: 179-180.
  • 17 Rawls 1971: 142-143.
  • 18 Rawls 1980: 521, 543-544. See also Rawls 2005: 30-34.

12The specification and protection of the rights of persons is mentioned on the level of the original position as a desired outcome that is taken into consideration throughout the process of negotiations on the principles of justice.15 Rights also appear within the group of the so-called primary social goods, namely, those goods that rational people, as free and equal persons, essentially seek16 and which they may present, regardless of their own concrete worldviews, as expectations through the activity of their representatives in the original position.17 Finally, rights are also referred to in the wider context of the original position as the sum of those basic moral-procedural claims whose fulfilment citizens may demand in fairness through their parties, for example, the right to determine and to assess upon due reflection, the first principles of justice, the right to make claims on the design of their common institutions in the name of their fundamental aims and highest-order interests, the right to form, revise, and rationally pursue a conception of the good and to hold an equal portion of rights independently of the final ends of their respective conceptions of the good, etc.18

  • 19 Rawls 2005: 4-6.
  • 20 Rawls 1971: 60. Emphasis added. Rawls’s subsequent revisions of the formulation of this principle o (...)

13According to Rawls, the process of deliberation in the original position results in the agreement on the two principles of justice that constitute both the framework for the construction of the basic institutions of society and the concrete formulations of basic rights of persons.19 The first of those two principles, in its original version, contains a reference to the concept of rights: “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others”.20

  • 21 See Martin 1985: 22-23, 25, 28-29, 41.

14A reflection on the ratio behind Rawls’s usage of the notion of rights in the arguments on the original position and in the first principle of justice led Martin to conclude that rights appear on those levels of Rawls’s system as moral rights, reducible to claims that represent the moral foundations of a framework that is still “under construction” and will be further “constructed” or specified in concrete rights in the juridical sense at some subsequent stage of his theory.21Such subsequent “construction” takes place at the remaining hierarchical levels of Rawls’s theory, namely, within the basic structure of society, then on the constitutional level, and finally on the level of the creation of laws and their application to particular cases.

  • 22 Rawls 2005: 11, 35, 201-202, 258.
  • 23 Rawls 2005: 258. Emphasis added.
  • 24 Rawls 2005: 334-340. See also Dworkin 2004: 1394.

15As the primary subject of justice modelled in conformity with the principles of justice agreed upon in the original position, the basic structure of society denotes the already institutionalized system of social cooperation that unifies society’s main legal, political, and economic institutions.22 Within the basic structure of society these institutions – especially legal-political institutions – “assign fundamental rights and duties”.23 The process of the specification of rights is then continued on the constitutional and, subsequently, legislative and adjudicative levels.24

  • 25 Martin 1985: 24.
  • 26 Martin 1985: 32, 38.

16According to Martin, rights become juridical in Rawls’s schema only from the constitutional level onwards, and they are subsequently developed on the level of legislation and adjudication. Thus, rights are describable according to their purely moral quality on levels higher than the constitutional level. In Martin’s estimation, Rawls envisions rights on the level of the basic structure of society – the so-called “basic structure rights” – as pre-juridical entities that are analogous to natural rights.25 Martin maintains that unlike the classical conception of essentially non-institutional natural rights as claims that structurally precede positive law, Rawls’s basic structure rights represent the first level on which we may speak of rights in a fully institutional sense. However, before their social recognition on the constitutional, legislative, or adjudicative level, the basic structure rights are still not rights in the juridical sense. They are only moral rights that possess certain institutional qualities and thus differ from the non-institutional moral claims that appear in the original position and in the principles of justice.26

  • 27 Martin 1985: 26.

17Through his analysis of Rawls’s relevant texts, Martin extracted a working definition of the concept of rights since Rawls never provided an explicit definition. According to Martin, a Rawlsian right is “an individual’s legitimate expectation as to what he would receive in a just institutional distribution of social primary goods”.27

  • 28 Perhaps some typical accounts of the nature of law that include an argument regarding the relevance (...)

18We thus arrive at the conclusion that both the definition of the legal order, provided by Rawls himself, and Martin’s definition of Rawlsian rights have a common characteristic; they both essentially point to a specific extra-legal or meta-juridical foundational context. When Rawls defines the legal order in reference to “rational persons” or to “the purpose of regulating their conduct and providing the framework for social cooperation”, this seems to point more in the direction of the classical themes of his conception of justice than to a common definition of the concept of law or to some well-known cluster of meta-juridical arguments regarding the intersection of law and morality.28 The same may be said of the claim to “a just institutional distribution of social primary goods” from Martin’s working definition of a Rawlsian conception of rights.

  • 29 Dworkin already highlighted that Rawls never explicitly expressed himself in favor of any “official (...)

19Thus, Rawls’s conception of law and rights is not describable in terms from mainstream legal-philosophical discourse, wherein the very definition of those concepts would already position his approach in the vicinity of some of the major existing accounts of the essence of law and rights, such as legal positivism, the artifactual theory of law, varieties of the natural law theory, etc.29 Quite the contrary, Rawls seems to propose a rather original approach when he considers the concept of law to be a sui generis construct the essential foundational elements of which are meta-juridical in a sense that may only be fully revealed within the coordinates of his own system.

  • 30 Bentley 1973: 1077. Emphasis added.
  • 31 Bentley 1973: 1077. Emphasis added.

20In relation to these peculiar features of Rawls’s concept of law and rights, a reviewer of Rawls’s A Theory of Justice appropriately noted that in the Rawlsian argument for a just arrangement of the institutions, the law “comes a bad second in comparison to other factors”.30 The same reviewer immediately added that “there is a whole possible area of study which could trace in given cases just how bad”.31 This is precisely the “area of study” that I will turn to in the next section, as I proceed to show that if the law comes “a bad second” in Rawls’s theory, this is only because there are other factors that “come first” in that theory, factors that fully reveal the relevant elements of his conception of law and rights.

3 Meta-juridical foundations of Rawls’s conception of law and rights

  • 32 “For us the primary object of justice is the basic structure of society, or more exactly, the way i (...)

21Each connoisseur of Rawls’s texts is familiar with the fact that the primary goal of his theory is modelling the basic institutions of society according to the principles of justice. In Rawls’s theory, law constitutes only a secondary aspect of this goal.32 In my opinion, Rawls’s preference for the issue of justice over the analysis of law and rights is not just a matter of emphasis. It is a purposeful decision, which testifies to the foundational postulate of his theory: the conception of justice structurally precedes the conception of law and rights. We could say that Rawls considers laws and rights to be the objects of justice, just as, for example, the basic structure of society is the object that is modelled according to the principles of justice.

22In his theory, laws and rights are thus constructs in a twofold sense. First, whatever their concrete formulations at the level of existing legal systems, laws and rights should always be “such-and-such” results of the framework, whose presuppositions are already fixed by the conception of justice, from top (the original position) to bottom (concrete laws and adjudicative decisions). Second, considering the hierarchical levels of Rawls’s system, wherein the lower levels include and reflect the content agreed upon (or constructed) at the higher levels, laws and rights are, juridically speaking, artifacts wholly created on the level of constitutional and legislative procedures. But they also somehow reflect the values reached at the higher levels of his system.

  • 33 Fried 1972: 1697.
  • 34 See Rawls 1971: 235.
  • 35 Rawls 1971: 235. Emphasis added.

23It has already been noted that a complete understanding of Rawls’s conception of law and rights largely depends on the location of this conception “within the terms of Rawls’s general scheme”.33 When he speaks about the legal order, legal norms, and rights, Rawls quite consistently refers to their “intimate connection” with the principles of justice.34 If we accept Martin’s definition of Rawlsian rights as legitimate expectations, it becomes clear that Rawls is actually speaking about rights when he claims that only just legal norms “establish a basis for legitimate expectations”.35

  • 36 See Rawls 1971: 58, 235.
  • 37 Rawls 1971: 235.
  • 38 See Rawls 1971: 60.
  • 39 Macleod 2015: 731. Besides the already quoted formulation of the first principle of justice, other (...)

24Legal order and legal norms become just not only because they fulfil some purely procedural demands of Rawls’s conception of the rule of law (e.g. impartiality of judges, principle of legality, etc.), which he analyzes under the rubric of the so-called formal justice.36 When speaking of the so-called substantive justice (or real justice in the strict sense of the term) of legal norms and rights, Rawls seeks to “relate these notions to the principles of justice” found on a level much higher in his system than the rule-of-law justice, and that actually extends all the way to the original position.37 Even though it may be said that “where we find formal justice, the rule of law and the honoring of legitimate expectations, we are likely to find substantive justice as well”, Rawls claims that the justice of the legal norms essentially depends on the principles of substantive justice that are agreed upon in the original position and model the basic structure of society.38 If we limit our analysis to only the concept of rights, we arrive at a similar conclusion – Rawls refers to rights almost exclusively in the context of the practical consequences of the principles of justice.39

  • 40 Rawls 2005: 368.
  • 41 Michelman 1975: 322.

25Rawls has himself highlighted that we should not understand his conception of justice as “a method of answering the jurist’s questions, but as a guiding framework, which if jurists find it convincing, may orient their reflections, complement their knowledge, and assist their judgement”.40 In this regard, Frank I. Michelman claimed that Rawls’s theory rarely provides ideally conceived contours of just rights with their specific content in various social contexts. Michelman relates this peculiarity of Rawls’s thought to the fact that “the theory’s principles of justice are selected for their capacity to serve as rather abstract, broad-gauged constraints against which to test more specific and circumstantially contingent proposals at the constitutional and legislative levels”.41

  • 42 See also Martin 1985: 26.

26All the above points to the conclusion that if we want to find out whether Rawls possesses a determinate conception of law and rights – and, in case of an affirmative answer, to find its essential properties – we must analyze the broader context of those crucial textual loci of his theory in which that conception is constructed. It is evident from the previous course of our analysis that this broader context does not pertain to an intra-conceptual argument on the concept of law, legal order, legal norms, rights, or their essential characteristics. For example, if Rawlsian rights are, as Martin claims, defined as legitimate expectations of a just institutional distribution of certain social goods, then the foundations of these rights are to be found within the whole schema of Rawls’s framework of justification of those “legitimate expectations”, that is, within the full range of the “higher-to-lower” levels of justification of rights.42

  • 43 Martin 1985: 26, 28.
  • 44 For a similar analysis of the higher levels of Rawls’s constructivist conception of justice as foun (...)

27When Martin concludes that Rawlsian rights are “details of an institutional arrangements”,43 I would add that these details regarding rights – but also regarding legal norms and law itself as an institution – are essentially determined by all the levels of Rawls’s conception of justice. Thus, legal norms and legal rights find their justification on the constitutional level, which from the standpoint of a single political community, is the highest institutional level of positive law. The constitutional level is, in turn, rooted in the basic structure of society, that is, in a meta-juridical institutional level. The latter is modelled by the principles of justice which are, again, the result of the procedure of construction made manifest in the original position.44

  • 45 Rawls 2005: xxii.
  • 46 Rawls 2005: xxii. For more details on Rawls’s understanding of political constructivism, see Rawls (...)

28When speaking of the idea of “political constructivism”, Rawls claims that this idea is “familiar to anyone acquainted with the original position of justice and fairness, or with some similar framework”.45 The idea of constructivism in the political sense is a theoretical tool that makes possible the perspective in which “the principles of political justice are the result of a procedure […] in which rational persons (or their representatives), subject to reasonable conditions, adopt the principles to regulate the basic structure of society”.46

29Rawls’s frequent use of the term “constructivism” is not accidental. From all that is thus far established, it is possible to conclude that the concept of law as an institution – as well as the closely connected juridical phenomena, like legal order, legal norms, and rights – is essentially marked by a “constructivist” procedure that is operative, on a foundational level, in the modelling of all basic social institutions. In this sense, I hold that we may rightfully speak of Rawls’s juridical constructivism.

30Having established the procedure according to which law is modelled as an institution within the full range of Rawls’s levels of substantive justice, we may now turn to the ways in which he evaluates the levels of justice in reference to the concrete content of laws and rights.

4 The priority of the Rawlsian conception of law and rights over the ideas of the good

  • 47 Whenever I refer to the “concept of law” in the text, I imply, by analogy, also the concept of lega (...)

31In my opinion, the foundational argument for understanding Rawls’s conception of law and rights may be found in one of the basic ideas of his conception of justice – the idea of the priority of right over the good. Why this idea and not some other, such as his idea of the overlapping consensus or the idea of public reason? Of course, the concept of law47 could purposefully be analyzed from the standpoint of these other ideas, or other elements in Rawls’s theory, as well.

  • 48 The focus of legal philosophy seems to shift from the classical “diatribes” between legal positivis (...)
  • 49 To test the properties of Rawls’s implicit legal theory, this question is intentionally formulated (...)

32However, I hold that the present focus on the idea of the priority of right over the ideas of the good is justified since it is precisely this idea that, in concomitance with the above line of argument, offers a unique answer to two basic questions regarding the ontological status of the concept of law. First, is law – together with rights – a natural kind (i.e., that occurs naturally, like water, silver, the law of gravity, etc.), an artifactual kind (i.e., something brought into its unique existence through intentional human creativity, like a chair, a novel, board games, etc.), or a specific complex of both of these kinds, wherein morality or some other evaluative standard relative to the ontological status of the good is taken into consideration?48 Secondly, is there some necessary connection between the concept of law and substantive, rather than just procedural or systemic, morality?49 Although it does not address these questions explicitly, Rawls’s theory – especially his idea of the priority of right over the ideas of the good – does at least implicitly provide an answer to them.

  • 50 Rawls 2005: 95-96, 103.
  • 51 See Rawls 1958: 178; Rawls 1971: 110-111; Rawls 1999b: 222-223.
  • 52 See Rawls 2005: 107-109.

33The specific goal of Rawls’s constructivist method is to find an adequate mode of achieving the standard of right.50 The concept of right – not to be confused with the concept of law or rights – is here construed as an outcome of the system of those principles of practical reasoning that would be agreed upon by all persons participating in an appropriately constructed initial situation (e.g., the original position).51 In a society that is profoundly marked by deeply conflicting worldviews regarding that which constitutes the good – a good life, a good law, a good social institution, etc. – it is crucial, according to Rawls, to “construct” the best possible relationship between the right principles of justice and the ideas of the good.52

  • 53 Rawls 2005: 24.
  • 54 Rawls 2005: 173-211.

34Now, in Rawls’s opinion, the fact that we as citizens embrace a certain religious, moral, or philosophically comprehensive doctrine regarding ideas of the good “is not a reason for us to propose, or to expect from others to accept, a conception of justice that favors those of that persuasion”.53 Since an all-encompassing idea of the good that would be supported by all citizens does not currently exist (and it is reasonable to believe that this situation will not change in the near future), Rawls proposes a conception of justice that must rely exclusively on the “constructed” principles of justice that are acceptable to all persons and that, at the same time, do not presuppose any particular idea (or comprehensive doctrine) of the good. This leads Rawls to establish, on the level of practical reasonableness, a constructivist principle that is superior to the particular ideas of the good. Thus, the principles of justice that are right, that is, those principles upon which all reasonable citizens may agree in a fairly constructed original position, must enjoy a primacy over the ideas of the good.54

  • 55 See Rawls 1980: 532.
  • 56 Rawls 1988: 251.
  • 57 Rawls 1985: 250.

35The priority of right is therefore the main constructivist postulate that sets the just standards for the adequate relationship between that which is right and the ideas of the good in the modelling of all the basic institutions of society.55 In Rawls’s own words, the idea of the priority of right over the ideas of the good “is an essential element in what I have called political liberalism, and it has a central role in justice as fairness as a form of that view”.56 This idea is so essential to Rawls’s conception of justice that he will claim, at some point, that “the just fall under the right”.57

36Now, this set of arguments generally seems to be highly relevant to the descriptive characteristics of law as an institution that is modelled according to the idea of the priority of right over the ideas of the good. More specifically, this idea establishes a certain set of constraints to the social activity of modelling institutions in the basic structure of society. The same set of constraints is thus applicable to law as an institution modelled in that structure and accordingly specified and developed at the constitutional, legislative, and adjudicative levels of the legal order.

  • 58 Rawls 1988: 252, 255-257.
  • 59 See Rawls 1971: 448-449.

37Which constraints are we referring to? The ideas of the good that are included in the modelling of the fundamental social institutions, including the law, must have the following characteristics: first, besides not contradicting the two basic principles of justice, they must be shared by all free and equal citizens or at least be acceptable to them; second, they must not presuppose any religious, moral, or philosophically comprehensive doctrine of the good for their acceptability.58 The ideas of the good under consideration for the purposes of modelling social institutions, including the law, are subject to this set of constraints even if their individual claims regarding certain goods “rely on a full knowledge of the facts”.59

  • 60 As will be shown in the following section, the general idea of the priority of right, and the concr (...)

38According to this conception, slavery for example, would not be unjust, illegal, and punishable on account of its constituting, in some way, a violation of a juridically relevant human good or a cluster of goods related to the value of liberty and equality (a natural law approach, in a broad sense), or solely because it is determined as such by positive law (positivist approach). In Rawls’s line of argument, slavery is profoundly unjust, and thereby forbidden and punishable in an adequately constructed institution of law because it is generally condemned by free and equal citizens, and this condemnation does not necessarily presuppose any specific comprehensive doctrine of the good that would be unacceptable to some citizens.60

  • 61 Sandel 1998: 185. Emphasis added.
  • 62 See Rawls 1988: 261-262.

39Michael J. Sandel, a critic of Rawls’s conception of justice, noted that Rawls’s insistence on the priority of right over the ideas of the good seems to imply that “the principles of justice that specify our rights do not depend for their justification on any particular conception of good life”.61 Sandel’s claim proves accurate when we follow Rawls’s line of argument regarding the application of the idea of priority of right to the construction of the institution of law in the basic structure of society, as well as the specification of laws and rights on the constitutional and legislative levels. Since the law, as one of the institutions of the basic structure of society, must not be grounded in any comprehensive doctrine of the good, Rawls affirms that the articulation of a “public basis of justification for the basic structure of a constitutional regime” must be established by “abstracting from comprehensive religious, philosophical, and moral doctrines”.62

  • 63 See Rawls 1971: 31-32.

40The conformity of the ideas of the good with the idea of the priority of right, together with the acceptance of the above-described set of constraints, shapes the just framework for the modelling of legal norms and rights.63 If the procedure for the construction of law as an institution allows access to the ideas of the good that are in contrast to the principles of justice, that procedure and the resulting legal order are thereby unjust. In a similar way, if the ideas of the good that are allowed access to the procedure for the construction of law on account of being harmonized with the principles of justice are found to be unacceptable from the standpoint of the constraints imposed by the idea of the priority of right, the legal order (i.e., specific laws and rights) that would protect such ideas (i.e., such goods) would then be, to that extent, also unjust.

41In the most extreme case, this means that certain values that validly “rely on a full knowledge of the facts” must be excluded from Rawls’s juridical constructivism if they cannot draw a consensus between all reasonable, free, and equal citizens, even when the values in question may be supported without embracing any particular comprehensive doctrine. From another perspective, this would mean that the values connected to certain ideas of the good may never, as such, participate in the modelling of any part of law as an institution unless they survive the “razor” of Rawls’s constructivist procedure. In that case, their “goodness” is reconstituted according to the teleology of the political conception of justice. Nothing is publicly or juridically “good” or “just” on account of moral continuity with its real, moral, or private “goodness”. The “goodness” of laws or rights is a byproduct of the idea of the priority of right, since the Rawlsian idea of justice is the primary “product”. To be sure, this account is quite distant from the traditional natural law argument for law’s “goodness”, but it does not seem to be reducible to legal positivism, either.

  • 64 See Rawls 1971: 235.
  • 65 On some occasions, Rawls explicitly refers to a “priority of rights” over “claims to general good a (...)

42Earlier in the text, we encountered Rawls’s claim that only just legal norms “establish a basis for legitimate expectations”,64 that is, for legal rights. The process of the justification of legal norms and legal rights – i.e., the verification of their justice – necessarily reaches as high as the issues inherent to the basic structure of society, which in turn must be evaluated according to the principles of justice and in connection to the quality of negotiations in the original position. The priority of right over the ideas of the good must be established on all these levels, otherwise we may have a “breach of injustice” on some level which is then replicated on all other levels. In this sense, we may legitimately say that Rawls advocates the priority of law and rights over the ideas of the good, since in his system, all things considered, the juridical domain is certainly prior to the ideas of the good.65

5 Rawlsian political natural rights

  • 66 See Rawls 2005: 97; Rawls 2001: 15.
  • 67 Rawls 2005: 406.

43As already established, Rawls’s theory does not belong to the strongest natural law approach, namely, the one that advocates the necessary inclusion of a “maximalist” set of determinate aspects of the whole human good – i.e., of basic human goods – in legal reasoning. In Rawls’s system, the juridical domain both systematically precedes, and is structurally detached from, comprehensive ideas of the good. Rawls even explicitly relegates the metaphysically ambitious account of natural moral law to the group of comprehensive doctrines that contain ideas of the good, which are unable to constitute an object of consensus among reasonable citizens.66 He firmly highlights that his conception of justice is “not an instance of a natural law doctrine”.67

  • 68 Another scholar that referred to Rawls as a natural rights theorist is Jürgen Habermas. See Haberma (...)
  • 69 Dworkin 1978: 176.
  • 70 Dworkin 1978: 177.
  • 71 Dworkin 1978: 176-177.
  • 72 Dworkin 1978: 177.

44What does this metaphysically “thin” conception of justice reveal about Rawls’s theory of rights as, in some way, pre-legal entities? Dworkin argues that Rawls evidently builds a conception of natural rights into the foundational aspects of his theory.68 According to Dworkin, behind Rawls’s original position there must stand some “deep theory”, which is in some way grounded in natural rights “in the sense that [these rights] are not the product of any legislation, or convention, or hypothetical contract”.69 Dworkin is careful enough to note that Rawls’s commitment to some “metaphysically ambitious”70 version of a natural-rights theory is improbable.71 Rather, according to Dworkin, Rawls’s account is a “natural-rights” theory in the sense that it values the deliberation of the parties in the original position without grounding their agreement in purely legislative or conventional sources, while at the same time offering reasons why principles of justice agreed upon in the original position correspond to citizens’ real demands for justice.72

  • 73 Dworkin 1978: 177-178.
  • 74 Dworkin 1978: 182.

45This line of argument leads Dworkin to a conclusion that Rawls’s “deep theory” is grounded in one natural right that Rawls presupposes in the original position, while the construction of all other rights takes place after the agreement in the original position.73 This Rawlsian architectonic original-position natural right, in Dworkin’s assessment, could be only “a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice”.74

  • 75 “This is an ingenious suggestion but I have not followed it in the text”. Rawls 1985: 236.
  • 76 Rawls 1985: 236.
  • 77 Rawls 1985: 236.
  • 78 Rawls 1985: 236.
  • 79 Rawls 1985: 236-237.

46In a comment on Dworkin’s thesis, Rawls denied his adherence to such a “deep” natural right to equality.75 In doing so, however, he presented certain insightful arguments regarding his conception of rights and his position on natural rights. In the first place, he revealed that he “prefers not to think of justice as fairness as a right-based view”.76 In addition, in his response to Dworkin, he maintains that the primary goal of his theory consists of certain “fundamental intuitive ideas” whose direct object is the institutional framework of justice “worked up into idealized conceptions”, and that rights “are but an element of such idealized conceptions”.77 In Rawls’s view, the original position is “a device of representation that models the force, not of the natural right of equal concern and respect, but of essential elements of these intuitive ideas as identified by the reasons for principles of justice”.78 “Natural right of equal concern and respect will be covered” by his theory, he says, “in other ways”.79 In the course of this paper I have already analyzed the foundational aspects of Rawls’s theoretical attempts to “cover” the status of what Dworkin calls the “right to equality and respect”, as well as the conceptual status of Rawlsian rights in general, in “other ways”.

  • 80 Martin 1985: 24.
  • 81 See Martin 1985: 32.
  • 82 See Martin 1985: 34, 38.

47We have seen that Martin situates what he believes to be Rawls’s conception of “natural rights” exclusively on the level of the basic structure of society, namely, on the level of the so-called “basic structure rights”.80 Martin considers these sui generis natural rights to constitute morally legitimate expectations that become fully juridical only after their explicit recognition through institutionalized procedures as positive rights on subsequent – constitutional and legislative – levels (i.e., as constitutional and legal rights).81 Thus, in his view, Rawlsian natural rights are situated on a structural level that is prior to legal norms – i.e., prior to constitutional norms – but they nevertheless demand a certain form of social recognition for their existence82 on the first truly institutional level, namely, the level of the basic structure of society.

  • 83 Martin 1985: 38-39.
  • 84 See Martin 1985: 41. In Political Liberalism, Rawls expresses his regret that he “has not replied t (...)

48According to Martin, there are no natural rights on the levels that are prior to the basic structure of society, only certain claims that might be rooted in some purely moral principles.83 Martin adds that, from the standpoint of natural rights, the original position and the principles of justice have a predominantly instrumental purpose: their sole function is to model the constructivist procedure that generates natural, constitutional, and legal rights.84

  • 85 Rawls 1971: 506.
  • 86 Rawls 1971: 505.
  • 87 See Rawls 1971: 505.

49In what is still his most developed reflection on the connection between the conception of justice and natural rights, Rawls asserts that his conception of justice “has the characteristic marks of a natural rights theory”.85 He maintains that the term “natural rights” is “appropriate” regarding those “rights that justice protects”.86 Natural right may be thus generally linked to “certain natural attributes” and “the claims based upon them”, provided that both are “established independently from social conventions and legal norms”.87

  • 88 Rawls 1971: 505.
  • 89 Rawls 1971: 505-506.
  • 90 Rawls 2005: 19, 103-104.
  • 91 Rawls 2005: 102-110.
  • 92 Rawls 1971: 505-506; Rawls 2005: 104, 107-108.

50Which “natural attributes” does Rawls have in mind here? He certainly does not have in mind the values pertaining to some comprehensive doctrine of the good. The presence of these natural attributes that are autonomous from social conventions may be verified, as Rawls says, “by natural reason pursuing common sense methods of inquiry”,88 and thus not the methods characteristic of the ideas of the good. He identifies these attributes with the so-called two moral powers89 that reasonable people ordinarily possess: first, the rational capacity to form, revise, and rationally pursue a conception of one’s own idea of the good, and second, the capacity of practical reasonableness for a sense of justice (i.e., the capacity to understand, apply, and to act from the reasonable principles of justice that specify fair terms of social cooperation).90 Again, from the standpoint of the individual reasonable citizen, the tension between these two moral powers is resolved by applying the constructivist idea of the priority of right (i.e., in this case, the capacity for a sense of justice) over the ideas of the good.91 Rawls highlights that these two natural attributes or moral powers of the person are “common-sense” natural “material” built into the foundations of his theory; these attributes are not constructed.92

  • 93 See Rawls 1971: 506; Rawls 2005: 104, 107-108.
  • 94 Rawls 1971: 505-506.
  • 95 Rawls 1971: 505-506. Emphasis added.

51Rawls’s political conception of justice may be thus translated and explained in terms of “natural” rights only: (1) if we understand the term “natural” to mean that specific “natural”, not constructed, attributes stand at the roots of his theory, (2) if the term “natural” suggests the contrast between the rights identified by the theory of justice and the rights defined by law and custom, and (3) if the rights that are thereby protected have a special force that cannot be easily overridden by other values.93 At the same time, Rawls is very clear in affirming that the natural properties at the roots of his theory represent only “the essential minimum”.94 He explicitly “leaves aside” the question of whether they also represent a “necessary condition” for the validity of the results of his theory, namely, for the construction of the concept of law and the concept of rights.95 This may lead to the conclusion that Rawls supports a sui generis “minimalist” conception of natural rights grounded in a conception of political justice, something like political – not metaphysical – natural rights.

52If my reading of Rawls’s conception of natural rights is correct, then Dworkin’s argument regarding a Rawlsian “deep” architectonic natural right is set too high (i.e., even higher than the original position), while Martin’s account of a Rawlsian “basic structure rights” is set too low (i.e., in the basic structure of society). Rawls’s “minimalist” account of political natural rights stretches across all hierarchical levels that make up his conception of justice, from the initial projection of rights in the original position, through their first specification in the principles of justice, all the way to their institutionalization in the basic structure of society, and their concretization on the constitutional, legislative, and adjudicative levels. Although he never really settles the question of whether (and on which level) these rights possess moral or juridical quality, Rawls’s conception of political natural rights is certainly operative on all levels of his theory.

6 Conclusion

  • 96 “I want to argue that between the general reasons for having law, and the local conventions that de (...)

53Where does the course of this analysis position Rawls’s conception of law and rights on the conceptual map of contemporary legal-philosophical discussions? Or alternatively, returning to Dworkin’s hypothetical semi-anecdote, which concept of law do the parties choose in the original position? We have already seen why Rawls’s conception of law and rights proves incompatible with forms of the classical or “maximalist” natural law position regarding the overlap between law and morality. He deems this position inadequate for a political conception justice. However, we have also seen that his juridical constructivism possesses the characteristics of a minimalist theory of political natural rights as pre-legal entities. Next, his theory seems to overlap significantly with the conception of law as a social convention,96 with the important difference that the Rawlsian social contract is essentially constructivist in its own peculiar way.

  • 97 Rawls 2005: 104, 108.
  • 98 Unfortunately, we will never find out Rawls’s own answer, since he has, as already seen, explicitly (...)

54Rawls’s conception of law shares some common elements with the artifactual theory of law, since law and all phenomena related to it are a product of a procedure of construction, in other words, a human artifact. Still, the Rawlsian conception of law may differ from the artifactual theory of law and rights in at least one essential way, namely, in its uncommon constructivist and, at the same time, minimalist conception of political natural rights. Rawls’s natural rights are partly founded upon certain natural-moral powers of rational and reasonable people. As he says himself, “not everything is constructed”.97 It remains unclear98 to what extent these natural and moral elements enter the definition of artifactually conceptualized rights understood as legitimate expectations regarding the just procedures according to which the institutions of the political community – including the legal order – should be designed.

55Perhaps the hardest relationship to describe correctly is between Rawls’s concept of law and legal positivism. The indicator of a positivist approach is reducible to a negative response to the following question: Do the arguments pertaining to substantive (as opposed to merely systemic or procedural) morality constitute necessary criteria for the identification of positive law and for the evaluation of its validity?

  • 99 Rawls 2005: 421-423; Rawls 1999a: 141. He has also claimed that his conception of justice is moral (...)
  • 100 The value of political toleration is, in Rawls’s system, one of the supreme values of political mor (...)
  • 101 From this level onwards, just legal norms “establish a basis for legitimate expectations”, i.e. for (...)

56Before detecting Rawls’s answer to this question, it is paramount to understand whether he considers substantive morality to be in any way necessary or relevant for his account of justice. He sometimes advocates “substantive” moral values as inherent to his political conception of justice.99 However, it is crucial to understand that Rawls does not intend “substantive” to mean “comprehensive”. The fundamental goal of his conception of justice is precisely its equidistance, at least in principle, from each comprehensive doctrine of the good. In addition, as already mentioned, laws and rights are structurally cut off from any notion of the good that is not reducible to, or filtered through, his fundamental idea of the priority of right over the ideas of the good. Any “substantive” value that “survives” the “razor” of the priority of right and is at the same time essential to his conception of justice – e.g., toleration100 – may be said to be somehow necessary for legal reasoning, since law as an institution is constructed on a level of the basic structure of society, that is, “below” these foundational values.101 Of course, if by “substantive” we understand a “maximalist” account of human good, then Rawls may be said to advocate a “no necessary connection” positivist position. However, Rawls’s implicit claim in favor of the existence of political natural rights seems to bring him closer to a Dworkinian “minimalist”, metaphysically “thin”, natural-rights position than to legal positivism.

57All this brings us to the conclusion that Rawls’s juridical constructivism resists clear categorization in the classical compartments of contemporary legal-philosophical debates. The main reason for this is the originality of his ideas. If this view is correct, then any approval or critique regarding his ideas on law and rights, as well as regarding the practical and institutional consequences of these ideas, should be prefaced with an accurate understanding of his original arguments. Providing this understanding was, in fact, the principal goal of this article.

Acknowledgments.An earlier version of this argument was published in Croatian in Zbornik Pravnog fakulteta Sveučilišta u Rijeci, (2019) 40: 1101-1032.

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Bibliography

Bentley, D. J. (1973). John Rawls: A theory of justice. University of Pennsylvania Law Review, 121(5), 1070-1078.

Burazin, L. (2016). Can there be an artifact theory of law? Ratio Juris, 29(3), 385-401.

Burazin, L., Himma, K. E., & Roversi, C. (Eds.). (2018). Law as an artifact. Oxford University Press.

Dworkin, R. (1978). Taking rights seriously (2nd ed.). Harvard University Press.

Dworkin, R. (1982). “Natural” law revisited. University of Florida Law Review, 34(2), 165-188.

Dworkin, R. (2004). Rawls and the law. Fordham Law Review, 72(5), 1387-1405.

Dworkin, R. (2006). Justice in robes. The Belknap Press of Harvard University Press.

Finnis, J. (2017). Aquinas and the natural law jurisprudence. In G. Duke & R. P. George (Eds.), The Cambridge Companion to Natural Law Jurisprudence (pp. 17-56). Cambridge University Press.

Fried, C. (1972). [Review of the book A theory of justice, by J. Rawls]. Harvard Law Review, 85(8), 1691-1697.

Fuller, L. L. (1964). The morality of law (2nd ed.). Yale University Press.

George, R. P. (1993). Making men moral: Civil liberties and public morality. Clarendon Press.

Habermas, J. (1996). Between facts and norms: Contributions to a discourse theory of law and democracy (W. Rehg, Trans.). The MIT Press.

Hermann, D. H. J. (1974). The fallacy of legal procedure as predominant over substantive justice: A critique of “the rule of law” in John Rawls’s A theory of justice. DePaul Law Review, 23(4), 1408-1436.

Macleod, A. (2015). Rights, moral and legal. In J. Mandle & D. A. Reidy (Eds.), The Cambridge Rawls lexicon (pp. 731-736). Cambridge University Press.

Marmor, A. (2011). The conventional foundations of law. In S. Bertea & G. Pavlakos (Eds.), New essays on the normativity of law (pp. 143-157). Hart Publishing.

Martin, R. (1985). Rawls and rights. University Press of Kansas.

Matulović, M. (1996). Ljudska prava: uvod u teoriju ljudskih prava [Human rights: Introduction to a theory of human rights]. Hrvatsko filozofsko društvo.

Michelman, F. I. (1975). Constitutional welfare rights and A theory of justice. In N. Daniels (Ed.), Reading Rawls: Critical studies on Rawls’s A theory of justice (pp. 319-347). Basic Books, Inc.

Moreso, J. J. (2021). Rawls, el derecho y el hecho del pluralismo. Anales de la Cátedra Francisco Suárez, 55, 49-74.

Padjen, I. (2016). Croatian legal philosophy and general jurisprudence in the 20th century. In E. Pattaro & C. Roversi (Eds.), A treatise of legal philosophy and general jurisprudence: Vol. 12. Legal philosophy in the twentieth century: The civil law world (pp. 662-674). Springer.

Rawls, J. (1958). Justice as fairness. The Philosophical Review, 67(2), 164-194.

Rawls, J. (1971). A theory of justice. The Belknap Press of Harvard University Press.

Rawls, J. (1980). Kantian constructivism in moral theory. The Journal of Philosophy, 77(9), 515-572.

Rawls, J. (1985). Justice as fairness: Political, not metaphysical. Philosophy and Public Affairs, 14(3), 223-251.

Rawls, J. (1988). The priority of right and ideas of the good. Philosophy and Public Affairs, 17(4), 251-276.

Rawls, J. (1999a). The idea of public reason revisited. In J. Rawls, The law of peoples with “The idea of public reason revisited” (pp. 131-180). Harvard University Press.

Rawls, J. (1999b). Justice as reciprocity. In J. Rawls, Collected papers (pp. 190-224). Harvard University Press.

Rawls, J. (2001). Justice as fairness: A restatement. The Belknap Press of Harvard University Press.

Rawls, J. (2005). Political liberalism (3rd ed.). Columbia University Press.

Raz, J. (1994). Liberalism, scepticism and democracy. In J. Raz, Ethics in the public domain: Essays in the morality of law and politics (pp. 97-124). Clarendon Press.

Raz, J. (2007). The argument from justice, or how not to reply to legal positivism. In G. Pavlakos (Ed.), Law, rights and discourse: Themes from the legal philosophy of Robert Alexy (pp. 17-35). Hart Publishing.

Raz, J. (2009). About morality and the nature of law. In J. Raz, Between authority and interpretation: On the theory of law and practical reason (pp. 166-181). Oxford University Press.

Reidy, D. E. (2015). Law, system of. In J. Mandle & D. A. Reidy (Eds.), The Cambridge Rawls lexicon (pp. 417-419). Cambridge University Press.

Sandel, M. J. (1998). Liberalism and the Limits of Justice (2nd ed.). Cambridge University Press.

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Notes

1 Dworkin 2004: 1405.

2 See Reidy 2015: 419. “No theorist has made a greater contribution to legal philosophy in modern times than the political philosopher John Rawls”. Dworkin 2006: 34. See also Dworkin 2004: 1387.

3 Martin 1985: 1-44; Fried 1972: 1697.

4 Rawls describes the aforementioned social-cultural context and advocates his assessment of its likely persistence in the foreseeable future in the following text: “A modern democratic society is characterized not simply by a pluralism of comprehensive religious, philosophical, and moral doctrines but by a pluralism of incompatible yet reasonable comprehensive doctrines. No one of these doctrines is affirmed by citizens generally. Nor should one expect that in the foreseeable future one of them, or some other reasonable doctrine, will ever be affirmed by all, or nearly all, citizens”. See Rawls 2005: xviii.

5 For Rawls’s formulations of this question, see Rawls 1971: 3-6; Rawls 2005: 3-4; Rawls 1999a: 131-132; Rawls 2001: 1-5.

6 I am, of course, aware of the fact that Rawls’s thought underwent, according to his own admission, some essential changes and shifts in focus over the course of his academic career. The most important change is certainly his shift in focus from justice as fairness as a comprehensive doctrine towards the political conception of justice, which is traceable to the period between the publication of his books A Theory of Justice (1971) and Political Liberalism (1993). See Rawls 2005: xiv-xviii. These significant changes, however, do not concern the elements of what I will here label as Rawls’s juridical constructivism. On the contrary, throughout his writings it is possible to follow a consistent development of those ideas pertinent to juridical constructivism. Hence, I will freely quote Rawls’s texts regarding this cluster of ideas from all stages of his opus. For a corroborating opinion on the consistency of Rawls’s legal-philosophical thought throughout various stages of his work, at least as regards the rights of persons, see Macleod 2015: 735.

7 “Rawls’s book [A Theory of Justice] is widely believed to have significant bearing on the philosophy of rights; but Rawls, though he frequently uses the language of rights, nowhere discusses rights as his main topic. His book [A Theory of Justice] contains, for example, no section devoted to rights, no entry for ‘rights’ or for ‘human rights’ or for ‘moral rights’ in its justly celebrated index”. Martin 1985: vii. This observation may be extended to include Rawls’s subsequent books, especially his Political Liberalism.

8 Martin 1985: 26. Martin adds that Rawls “does not even attempt an analysis of the concept [of rights], and though he uses the term ‘rights’ freely, he does so without explication”. Martin 1985: 26.

9 Macleod 2015: 731.

10 Fried 1972: 1697.

11 Rawls 1971: 235. This definition is from the section of A Theory of Justice entitled “The Rule of Law”. This section might prima facie seem to represent an isolated, almost superfluous (or inessential) theoretical discussion in the field of legal theory within Rawls’s broader discourse on justice, which is certainly the central topic of his work. When approached from the perspective of an isolated legal argument that is detachable from the broader context of the discourse on justice, Rawls’s definition of the legal system, along with his general discussion of the rule of law, which is largely reducible to the so-called purely procedural principles (such as the principle of legality), is considered to be congenial to legal positivism and is, accordingly, exposed to anti-positivist critique. See Hermann 1974: 1408-1436.

12 See Matulović 1996: 17, 113-145, 276, 342-343. For an English presentation of Matulović’s work on Rawls’s theory of rights, see Padjen 2016: 671. For a similar categorization, see Martin 1985: 21-31.

13 See Rawls 1971: 195-201. For Rawls’s subsequent treatment of some of the arguments pertaining to what he calls the “four-stage sequence”, see Rawls 2005: 227-230, 334-340.

14 Rawls 1971: 136-142; Rawls 2005: 23-24.

15 “Not only do the parties protect their basic rights [in the original position] but they insure themselves against the worse eventualities”. Rawls 1971: 176. See also Rawls 2005: 27.

16 Rawls 1971: 92; Rawls 2005: 179-180.

17 Rawls 1971: 142-143.

18 Rawls 1980: 521, 543-544. See also Rawls 2005: 30-34.

19 Rawls 2005: 4-6.

20 Rawls 1971: 60. Emphasis added. Rawls’s subsequent revisions of the formulation of this principle of justice have also affected the explicit reference to “rights”. Thus, in Political Liberalism, we find the following formulation of the relevant part of the first principle of justice: “Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties…”. Rawls 2005: 5. Emphasis added. By the time Rawls’s Justice as Fairness: A Restatement was published in 2001, the explicit reference to “rights” in the first principle of justice seems to have disappeared: “Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties…”. Rawls 2001: 42. Emphasis added. However, regardless of the status of the explicit mention of “rights”, even the reference to “claims to a fully adequate scheme of equal basic liberties” suffices to establish a correspondence to Rawls’s working definition of rights (which I will present later in this section) extracted from his texts by some of his commentators, most notably by Rex Martin. Rawls has subsequently expanded the formulation of the second part of the first principle of justice to include the following claim: “…and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value”. Rawls 2005: 5. According to the second principle of justice, “social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society”. Rawls 2005: 6.

21 See Martin 1985: 22-23, 25, 28-29, 41.

22 Rawls 2005: 11, 35, 201-202, 258.

23 Rawls 2005: 258. Emphasis added.

24 Rawls 2005: 334-340. See also Dworkin 2004: 1394.

25 Martin 1985: 24.

26 Martin 1985: 32, 38.

27 Martin 1985: 26.

28 Perhaps some typical accounts of the nature of law that include an argument regarding the relevance of certain extra-juridical elements may provide a useful context for an assessment of Rawls’s peculiar understanding of law and rights: “What best explains the features law has […] is its character as a response to human communities’ morally significant need for the kind of access to justice that only law systematically provides”. Finnis 2017: 50; “The identification of law never requires the use of moral arguments or judgements about its merit”. Raz 2007: 22.

29 Dworkin already highlighted that Rawls never explicitly expressed himself in favor of any “official” conception of law. Dworkin 2004: 1395. For purely theoretical (and, to a degree, anecdotal) purposes, Dworkin also imagined a scenario in which Rawls permits that the parties in the original position choose not only the principles of justice, but also their preferred conception of law, as a “menu of only two courses”: positivism or some form of a “simplified interpretivist non-positivist account”. Dworkin 2004: 1392. The second option refers to Dworkin’s own legal theory, which he elsewhere labels as “naturalism” – a sui generis natural law position in a broad sense – or the “theory which makes the content of law sometimes depend on the correct answer to some moral question”. See Dworkin 1982: 165.

30 Bentley 1973: 1077. Emphasis added.

31 Bentley 1973: 1077. Emphasis added.

32 “For us the primary object of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation”. Rawls 1971: 7.

33 Fried 1972: 1697.

34 See Rawls 1971: 235.

35 Rawls 1971: 235. Emphasis added.

36 See Rawls 1971: 58, 235.

37 Rawls 1971: 235.

38 See Rawls 1971: 60.

39 Macleod 2015: 731. Besides the already quoted formulation of the first principle of justice, other examples of Rawls’s arguments wherein he refers to rights may also be consulted. “Each of these principles regulates institutions in a particular domain not only in regard to basic rights, liberties, and opportunities but also in regard to the claims of equality…”. Rawls 2005: 6. “Since the primary subject of justice is the basic structure of society, these fair terms are expressed by principles that specify basic rights and duties within its main institutions…”. Rawls 2005: 16. “We must keep in mind that we are trying to show how the idea of society as a fair system of social cooperation can be unfolded so as to find principles specifying the basic rights and liberties and the forms of equality most appropriate to those cooperating, once they are regarded as citizens, as free and equal persons”. Rawls 2005: 27.

40 Rawls 2005: 368.

41 Michelman 1975: 322.

42 See also Martin 1985: 26.

43 Martin 1985: 26, 28.

44 For a similar analysis of the higher levels of Rawls’s constructivist conception of justice as foundational moments for the concept of rights, see Macleod 2015: 732, 734.

45 Rawls 2005: xxii.

46 Rawls 2005: xxii. For more details on Rawls’s understanding of political constructivism, see Rawls 1980: 515-572; Rawls 2005: 89-129.

47 Whenever I refer to the “concept of law” in the text, I imply, by analogy, also the concept of legal (or positive) rights.

48 The focus of legal philosophy seems to shift from the classical “diatribes” between legal positivism and the varieties of the natural law theory to versions of this question. Since nobody really holds that laws or rights are entities that naturally occur in a way analogous to water, silver, or the law of gravity, for some of the arguments in favor (or not in favor) of the answer that law may be a pure artifact, see some of the contributions in Burazin, Himma & Roversi 2018. See also Burazin 2016: 385-401. For a natural law argument that laws and legal rights causally pertain to an artifactual kind, but that their ontological status contains also the necessary reference to certain evaluative moral standards, see Finnis 2017: 17-56, especially 49-52.

49 To test the properties of Rawls’s implicit legal theory, this question is intentionally formulated to include the strongest natural law approach to the overlap between law and morality, namely, the claim that substantive morality, understood in reference to a “maximalist” set of the so-called “basic human goods”, is somehow necessarily juridically relevant. A possible list of these goods would, according to one such approach, include “life and health, marital/procreative union, knowledge, friendly association, artistic accomplishment, friendship with the divine transcendent source of all these goods, and practical reasonableness in actualizing all these intrinsic, self-evident forms of human good”. See Finnis 2017: 18-19. Procedural morality encompasses the values Rawls refers to with the terms “formal justice” and “rule of law”; these values are elsewhere referred to as the “inner morality of law”. See Fuller 1964. Systemic morality of law would imply the moral value of law as an institution, the very nature of which – on account of possessing the authority for fulfilling goals in, broadly speaking, institutional, public, and peaceful ways that without its existence could not be observed – has a specific moral value. For example, see Raz 2009: 166-181.

50 Rawls 2005: 95-96, 103.

51 See Rawls 1958: 178; Rawls 1971: 110-111; Rawls 1999b: 222-223.

52 See Rawls 2005: 107-109.

53 Rawls 2005: 24.

54 Rawls 2005: 173-211.

55 See Rawls 1980: 532.

56 Rawls 1988: 251.

57 Rawls 1985: 250.

58 Rawls 1988: 252, 255-257.

59 See Rawls 1971: 448-449.

60 As will be shown in the following section, the general idea of the priority of right, and the concrete condemnation of slavery as profoundly unjust from this example, are both operative on the highest level of Rawls’s system - the original position.

61 Sandel 1998: 185. Emphasis added.

62 See Rawls 1988: 261-262.

63 See Rawls 1971: 31-32.

64 See Rawls 1971: 235.

65 On some occasions, Rawls explicitly refers to a “priority of rights” over “claims to general good and of perfectionist values”. See Rawls 2005: 6, 223. Perfectionist claims may be understood to denote instantiations of the ideas of the good, since an affirmative approach to perfectionist values in political philosophy usually implies an imperative to safeguard a determinate set of moral standards through state policies, and especially through legal norms. For examples of this approach, see Raz 1994: 97-124; George 1993.

66 See Rawls 2005: 97; Rawls 2001: 15.

67 Rawls 2005: 406.

68 Another scholar that referred to Rawls as a natural rights theorist is Jürgen Habermas. See Habermas 1996: 82-84. For a different, and with regard to this paper, parallel approach to the presentation of some other of Dworkin’s remarks regarding the relevance of Rawls’s arguments for certain foundational issues of legal theory downstream from the discussion on the very concept of law, see Moreso 2021: 49-74.

69 Dworkin 1978: 176.

70 Dworkin 1978: 177.

71 Dworkin 1978: 176-177.

72 Dworkin 1978: 177.

73 Dworkin 1978: 177-178.

74 Dworkin 1978: 182.

75 “This is an ingenious suggestion but I have not followed it in the text”. Rawls 1985: 236.

76 Rawls 1985: 236.

77 Rawls 1985: 236.

78 Rawls 1985: 236.

79 Rawls 1985: 236-237.

80 Martin 1985: 24.

81 See Martin 1985: 32.

82 See Martin 1985: 34, 38.

83 Martin 1985: 38-39.

84 See Martin 1985: 41. In Political Liberalism, Rawls expresses his regret that he “has not replied to Rex Martin’s probing criticisms expressed in his Rawls and Rights, especially [certain] chapters”, and explicitly mentions the chapter of Rawls and Rights that contains the development and the critique of his conception of rights. Rawls 2005: xxxv. I can only add my own personal regret that Rawls did not, on that occasion, respond to Martin with a further clarification of his position on the status of natural rights in his theory.

85 Rawls 1971: 506.

86 Rawls 1971: 505.

87 See Rawls 1971: 505.

88 Rawls 1971: 505.

89 Rawls 1971: 505-506.

90 Rawls 2005: 19, 103-104.

91 Rawls 2005: 102-110.

92 Rawls 1971: 505-506; Rawls 2005: 104, 107-108.

93 See Rawls 1971: 506; Rawls 2005: 104, 107-108.

94 Rawls 1971: 505-506.

95 Rawls 1971: 505-506. Emphasis added.

96 “I want to argue that between the general reasons for having law, and the local conventions that determine what counts as law in particular legal system, there is an intermediary layer of deep conventions. […] Our concept of law is constituted by both layers of conventions that determine the basic organization of a legal order, and partly on the specific institutions we have in our community. […] Both are conventional”. Marmor 2011: 154, 157.

97 Rawls 2005: 104, 108.

98 Unfortunately, we will never find out Rawls’s own answer, since he has, as already seen, explicitly decided to “leave aside” the question of whether these natural-moral elements also represent a “necessary condition” for the validity of law and rights. See Rawls 1971: 505-506. Emphasis added.

99 Rawls 2005: 421-423; Rawls 1999a: 141. He has also claimed that his conception of justice is moral in a substantive sense, since the outcome of its procedure includes also “an account of certain political virtues […] such as the virtue of civility and tolerance, of reasonableness and the sense of fairness”. Rawls 2005: 192-194.

100 The value of political toleration is, in Rawls’s system, one of the supreme values of political morality: “In formulating [a conception of justice] political liberalism applies the principle of toleration to philosophy itself”. Rawls 2005: 9-10, 194.

101 From this level onwards, just legal norms “establish a basis for legitimate expectations”, i.e. for legal (or positive) rights. See Rawls 1971: 235.

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References

Electronic reference

Petar Popović, “Rawls's juridical constructivism revisited”Revus [Online], 43 | 2021, Online since 22 March 2021, connection on 09 December 2021. URL: http://journals.openedition.org/revus/7039; DOI: https://doi.org/10.4000/revus.7039

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About the author

Petar Popović

Ph.D., Adjunct Professor in Philosophy of Law and Foundations of Law and Rights in the Church, Faculty of Canon Law, Pontifical University of the Holy Cross, Rome (Italy)

Address: Faculty of Canon Law – Pontifical University of the Holy Cross – Piazza di Sant’Apollinare, 49 – 00186 Rome – Italy

E-mail: p.popovic@pusc.it

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