Works By John Courtney Murray, S.J.

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The Problem of Mr. Rawls's Problem


Woodstock College

No one will question the permanent validity of the issue to which Professor Rawls addresses himself. In one or another state of the question, as influenced by one or another cultural context, it has long been argued; and it will need continually to be argued, since it is central to the public philosophy. Is our social existence, as structured by law, based only on force and fear or also somehow on morality and conscience? Is civil obedience a form of moral action or merely a matter of expediency and interest? Is it a free response to a moral obligation whose grounds are grasped by intelligence, or is it no more than a craven conformism effected by coercion? Is the political obligation also a moral obligation, and, if so, why? The issue can be stated in all sorts of ways.

Professor Rawls's dominant intention is to remedy the defects and inadequacies of utilitarian theory. In its application, the rule of the greater happiness of the greater number results in inequities that are visited on a minority, whose happiness is the price at which the greater happiness is bought. This result appears prima facie as a social surd; and its appearance casts doubt on the theory.

The major question is whether the concept of fair play, which Rawls advances as his principle of solution, will bear the theoretical and practical weight he wishes to thrust upon it.

There is, however, the preliminary issue of the manner in which he states the problem. He takes his start from "two anomalous facts," and he chooses to argue the "hard case" of the obligation of civil obedience to an unjust law. It is, however, normally perilous to argue from perplexed cases, as they are technically called. The danger is a distortion of theory. Moreover, the question "Why am I obliged to obey the law in the hard case?" is subsumed under, and supposes a solution to, the more general classic question "Why am I obliged to obey the law at all?" I do not therefore see the advantage of stating the problem in terms of the hard case.

Furthermore, I find two conceptual difficulties in the statement of the problem. First, I fail to grasp the exact meaning intended in the phrase "unjust law." Is it a question of legal enactments that are violative of certain demonstrable rights of man and citizen or of enactments that are merely damaging to certain interests of a minority? Is the question simply political —a question of the prudence of legislation and its effective relation to the furtherance of the common good? Or is the question properly moral—a question of legislative trespass on the order of rights whose ultimate roots are in the sacredness of the human person? A minority might complain that a tax bill, for instance, is unjust, meaning that it is contrary to the interests of the income bracket in which the minority finds itself. 'This, however, is to use the word "unjust" in a loose sense. The justice of the bill might still be sustained on the ground that it distributes equitably the social burden of taxation and precisely to this end contravenes the interests of a particular social group.

On the other hand, a minority—or a single man, for that matter—might complain against the injustice of a statute en-forcing euthanasia on certain classes of the population judged by the state to be useless. Here the word "unjust" would be used with full propriety; the right to life is inherent in the human person, inalienable in the face of the state. There is no moral case to be made for a statute enforcing euthanasia (so, at least, we commonly think at the moment). Moreover, in the characterization of laws as unjust, attention would have to be paid to the classic distinction between malum quia prohibitum and prohibitum quia malum. The first question therefore concerns the sense in which Rawls speaks of an "unjust" law.

I should add here that, in my view, no moral issue of civil obedience rises in the case of a legal enactment that is unjust in the proper sense. To the question "Why am I obliged to obey an unjust law?" the only answer is that I am not obliged to obey it. I cannot be bound in conscience to comply with a legislative act that does violence to my rights as a man. Failure to comply may indeed result in my being coerced by the power of the state, but the coercion is doubly injurious. I take it that this position furnishes the basis for the classic right of resistance to unjust rule, which is one of the Germanic components of the liberal tradition of politics.

My second question concerns the use of the word "obligation." Again I fail to grasp Rawls's meaning. In its classic sense, the concept of obligation exhibits two notes. There is, first, the note of necessity, stated in the word "ought." Second, there is the note of freedom, implied in the word "ought." Obligation asserts a necessity of the moral, not the physical, order; therefore my response to it must be a free act of obedience. To pay a just debt at the point of a gun, and only because the gun is pointed, is not to act as a moral agent consciously responding to a sense of obligation. I am not quite sure that Rawls is using the word "obligation" in its full sense or in some attenuated sense. Something seems to be missing with regard to the note of "necessity."

In any event, his problem is to know the reason for the obligation—the rational and moral necessity—of obeying legislative prescriptions or prohibitions of human enactment (I put the question in its full mode of generality). The solution is sought in the concept of fair play. By a voluntary act I once chose to accept the benefits accruing to me from the social cooperation whose organization and maintenance are effected by the legal order of society. This voluntary act is prolonged in the intention to continue to accept these benefits. This act and this intention create an obligation to play fair. And this obligation comes to bear on me in the hard case from the law ( and also, I should think, in any case of encounter with the social fact of law). So, at least, I understand the solution, though my understanding may be clouded by the difficulties already noted.

The first question concerns the problematic—the problem of the problem. Are we once more back in the problematic created by the will to remove from human law all manner of transcendental reference, and indeed any note of heteronomy, in the name of a morality of perfect personal autonomy? This problematic is usually associated with the name of Rousseau, but in one or other form it is common within the secularistic tradition of the autonomous man, derivative from the Enlightenment, which has transposed the state of the question in all the great issues of philosophy, politics, and law. How shall it be brought about that in society I shall obey only myself—is this the problem behind Rawls's problem? Have we here an-other speculative effort to find in personal freedom the final root of moral obligations in and toward society? Does this direction of effort command the appeal to something that looks very like the celebrated "state of nature" of rationalist theory—what the author calls the "original position of equal liberty," which seems at least to have some sort of natural priority over the social consensus, which in turn seems to be no more than contractual? Or am I doing the unpardonable thing, which is to indulge in exegesis? Not, at any rate, willfully. The fact is that I do not clearly see what Rawls's problematic is. And an understanding of it would have to be the first step toward a judgment on his mode of positing and solving his problem.

I might perhaps note here that I myself stand within the older tradition, derivative from the Old and New Testaments and developed by the schools in the wake of Augustine, which constructs the problematic of the political obligation in the light, for instance, of Romans 13:1. The issue is how shall it be brought about, in theory and in practice, that in society a man should, in the end, obey only God? Even if one believes in God as Pantocrator, some nice argument, of considerable complexity, is required to elaborate the solution.

Under precision from larger issues, it would be only fair to consider Rawls's solution in its own terms. From this point of view, it is not without some fragilities.

First, there is the issue of the inference from the decision to be a societal man to the obligation of playing fair. It is by no means evident that the inference is valid in itself or that it terminates in a proper obligation, a rational and moral necessity to keep the rules on all occasions. Unless some other moral factor is introduced into the argument, the conclusion might well be qualified by the famous scientific proviso: Having agreed to be a societal man, I am obliged to play fair, other things being equal. Other things, however, are not always equal, as we so well know. But an obligation that is only hypothetical does not satisfy the exigencies of the problem. From another point of view, the conclusion from the premise might merely be that, since I will to participate in society, it would be a good thing for me to keep the rules. It would be only fair for me to play fair. Thus I would display my social virtue—and also stay out of trouble. The difficulty is that the good and the obligatory are not conceptually identical. The moral order and the juridical order are not to be divorced in some sort of Kantian style; but they are to be differentiated. Moreover, against any supposed obligation to play fair I could always, in the particular instance, appeal to an "ethic of the situation" and transcend any a priori demand in the name of some higher personal value, perhaps even some higher social value, that would accrue, if I were to break the rules. Finally, it is not possible to prove that the order of society, from which benefits derive to the individual, requires that everybody should always play fair. In the perspectives of Aquinas' realist view of the human likelihood of virtuous behavior, it is sufficient that a minority behave well out of a motive of virtue and that a just system of coercive law obtain that will constrain and restrain the maior pars who, as he says, are "not perfect in virtue." But if it is not necessary that everybody should play fair, why should I? Whence comes the necessity? I should indeed be the gentleman who plays fair. However, as Newman pointed out, being a gentleman has per se little to do with morality. And in the climactic hard case, which is that of the famous gentleman of the "Gentleman's Psalm" (number 15 in Hebrew), who "swears to his own hurt and does not change," the reason for his fidelity to his word was not a prior decision to accept the benefits of Hebrew society. It was the fear of the Lord, the desire to sojourn in his tent, to dwell on his holy hill.

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