Roberto Alejandro. New Dictionary of the History of Ideas. Editor: Maryanne Cline Horowitz. Volume 5. Detroit: Charles Scribner’s Sons, 2005.
Justice appears as a paradoxical concept in the history of the United States. On the one hand, it has been absent as a rallying cry in the major struggles that have shaped, and continue to shape, the plurality of identities of the American nation. The concept “justice” is not prominent in the Declaration of Independence or in the Constitution. It was not the cornerstone of the abolitionist movement, the Civil War, the women’s suffrage movement, or the civil rights movement. It did not surface in the demands of Native Americans against the encroaching and overwhelming force of local states and the federal government. Nor does it carry major weight in the prostatehood movement that is still hoping to move Puerto Rico away from its colonial status and to see the island as a state of the American union. In contrast to the Platonic Republic, in which justice is viewed as the central virtue of an ideal society, justice seems to appear as an afterthought, as in the last sentence in the pledge of allegiance.
On the other hand, justice has infused the political ideas and practices that define the American society, and it should not be confined exclusively to the arena of legal procedures. Rather, justice has been refracted through the ideas of rights, liberty, equality, democracy, state institutions, and other concepts that have dominated the moral language of American citizens or the people who wanted to become, or were forced into the framework of, American citizenship. The absence of clear definitions of justice guiding public discussions since the arrival of the Puritans takes a different meaning when the theoretical inquiry focuses on the multiplicity of dimensions entwined with justice.
These dimensions include: a providential understanding of a communal identity; the conception of individuality; the relationship between individuals and the government; the view of political power and the proper nature of the state; the protections and bulwarks in the judicial sphere; and justice as the first principle that ought to guide both the individual’s life and governmental policies. All these dimensions place a high premium on rights, but the relationship between rights and justice is clarified by looking at the link between liberty and justice. This link presupposes that people must be free to choose rules of justice, but then justice is understood as the principle that delineates the scope of liberty, which means that justice defines the boundaries of rights. The refracted and yet ubiquitous presence of justice in American thought helps to explain why John Rawls’s philosophy, which dominated American liberalism in the last three decades of the twentieth century, portrayed justice as the standard by which to measure both a well-ordered society and a just citizen.
Puritan Conceptions of Justice
Though the Mayflower Compact (1620) stresses the importance of “just and equal Laws,” John Winthrop’s sermon “A Modell of Christian Charity” (1630) is a reasonable point of departure in examining justice in the American context. This sermon is important not only for the location where it was delivered—on the ship Arabella en route to a new continent—but also for the distinction between mercy and justice as well as for its emphasis on an ordered and tightly knit community predicated on mutual assistance. According to the principle of mercy, Christians must help their brothers and sisters beyond their ability in order to fulfill the gospel. But in lending means of subsistence and forgiving debts, justice intervenes. If a Christian brother, for instance, possesses the resources to repay a debt, “thou art to looke at him, not as an Act of mercy, but by way of Commerce, wherein thou arte to walke by the rule of Justice.…” (p. 32). When the probability of a debt being re-payed is null, Christians ought to lend according to the rule of mercy, which expects nothing. Along similar lines, whether the loan was an act of mercy or of justice, when the borrower has nothing to pay back, “thou must forgive him (except in cause where thou hast a surety or a lawful pleadge)” (p. 33). In this way, if there is a “lawful pleadge,” justice overrules mercy.
The association of justice, commerce, and a lawful pledge delimits justice to the sphere of agreements and contracts sanctioned by the law. Though this view seems to narrow significantly the scope of justice, the refraction principle shows itself when the text is examined in more detail. At the end of his sermon, Winthrop presents the well-known analogy of the pilgrims as a “city upon a Hill.” But it must be emphasized that the city upon a hill does not refer to the original biblical reference found in the Gospel according to Matthew. In Winthrop’s reasoning, the context of the phrase is provided by the Israelites on their journey to the promised land. As in the Israelites’ case, Winthrop’s arguments center upon a covenant between God and the Christian community, and God will expect a strict compliance with the “Articles contained in it …,” for otherwise “wee shall surely perishe out of the good Land whether wee passe over this vast Sea to possesse it.…” (p. 43). In other words, the relationship between God and Winthrop’s fellow travelers is one ruled by justice in the form of a covenant, and an intrinsic part of this justice was the possession of the land where they would live.
Seen from this perspective, justice is no longer limited to contractual relations between persons. Rather, the boundaries encompassing justice widen substantially. At the same time, a covenant that carries the high penalty of divine wrath is ominous for all people who are outside the particular community Winthrop is addressing. Justice thus straddled two conflicting points of departure. The city upon the hill echoes the love Winthrop found in the gospel, while the covenant belonged to the Hebrew warriors who were to possess a land already inhabited. The New Testament “law of grace” and the Old Testament justice were inseparable. The mention of the city upon a hill is preceded by an explicit reference to God’s command to Saul to destroy Amalek. In other words, the textual transplantation preceded the cultural transplantation. Justice, then, had two dimensions: a secular one defined by legal contracts among individuals as well as a providential dimension manifested in a covenant between God and a community bonded by shared beliefs.
The double character of Winthrop’s conception of justice insisted on the individual’s obligation to comply with his or her contracts and gave the community a privileged position in its dealings with non-Christians and even with Christians who did not share the same doctrinal tenets. Unity and fragmentation emerged as two central components that would be present in the understanding and application of justice. Winthrop’s view of love anticipated this conclusion. Love stems from the fact that people see in others what they see and cherish in themselves. In this way, the root of otherness, as a standpoint that demands the conversion and “civilization” of non-Christians, or as the establishment of boundaries to keep outsiders at bay, was thus inscribed in the view of justice sketched in Winthrop’s famous sermon. The “Dedham Covenant” (1636), a document specifying the form of government in the town of Dedham, Massachusetts, was more eloquent in describing the quest of unity and how exclusion was part of this quest. In section two, the limits of admittance into the community were specified: “That we shall by all means labor to keep off from us all such as are contrary minded, and receive only such unto us as may be probably of one heart with us.…” (p. 68).
Several years earlier, Virginia had already put into place a system of legal clauses that contained both a mix of exclusion and a call for fairness. The “Articles, Laws, and Orders, Divine, Politic, and Martial for the Colony in Virginia” (1610-1611) stipulated that no man “of what condition so-ever shall barter, trucke, or trade with the Indians, except he be thereunto appointed by lawful authority upon paine of death.” (Article 15, p. 319). In the following article, the colonists were forbidden from despoiling any “Indian” who would come to trade, and the punishment would also be death (Article 16). By 1619, freemen were allowed to trade with the Indians, but offensive or defensive weapons could not be part of these commercial transactions.
The twofold nature of unity and exclusion should not obfuscate other features that would have a deep influence in the evolution and conceptualizations of the idea of justice. The “Plymouth Oath of Allegiance and Fidelity” (1625) contained an oath given to the governor and members of the council in which they would swear to administer justice “equally & indifrently without respect of persons.” (p. 34) The same principle of impartiality is present in the “Pilgrim Code of Law” (15 November 1636) and runs consistently in the founding documents of the early settlements. The historical evidence thus shows that the English philosopher John Locke’s (1632-1704) arguments about consent and impartial laws as the cornerstones of a political and just society were already present in the ideas animating the Puritans of the early colonies, the same ideas that permeated their providential and secular understanding of justice.
During King Philip’s War (1674-1677), between the New England colonists and the Indian tribes in the region, the providential character of justice showed the consequences of its privileged standpoint. Increase Mather would remind his listeners that their unfaithfulness was the cause of the violent upheaval that threatened them. But he saw the destruction of the heathens as an act that abided with the justice expected from a people ruled by a providential design. For the war was just, and the army was executing “the vengeance of the Lord upon the perfidious and bloudy Heathen” (p. 107).
Providential View of Justice
The same providential view of justice that erected boundaries against outsiders and allowed Mather to justify the obliteration of a community of Native Americans also called for universal descriptions that would later haunt institutions tethered to partiality and particularity. That is to say, it was contradictory to use a universal language of justice to justify political institutions and then attempt to circumvent and ignore the consequences of this language. The phrase “all men are created equal,” a phrase that belongs to the domain of justice, could not be used to justify slavery. In his 1858 debates with Stephen Douglas, Abraham Lincoln could confidently use the Declaration of Independence and the Constitution to oppose the extension of slavery. This task was fraught with obstacles, though. The universality of categories pertaining to justice transformed the American Constitution into a battleground of competing conceptions of morality and conflicting views of the relationship between individuals and the government. For William Lloyd Garrison, the Constitution was a covenant with hell that vitiated its potentiality for individual liberty. Frederick Douglass followed, at first, the Garrisonian view, but he concluded that the founders had bestowed enough room to challenge the institution of slavery. In his speech of May 28, 1856, addressing the radical abolition party convention in New York, Douglass said: “This Constitution sets forth several propositions, which, if carried out, would abolish slavery. What are they? The Constitution declares its object to be ‘to form a more perfect union.’ How can you form a more perfect union with slavery? … The Constitution is declared to be established for the people, and who are the people? The men and women of the country. We are part of the people” (pp. 389-390).
While Douglass found refuge in the universal goals that the Constitution clearly pursued, Ralph Waldo Emerson and Henry David Thoreau invoked transcendental categories that were congenial to the providential view of justice. In his opposition to slavery, Emerson saw the universe, nature, power, justice, and the moral order as transcendental realities of a divine unity. The universe, Emerson wrote in 1845, “is not bankrupt: still stands the old heart firm in its seat, and knows that, come what will, the right is and shall be. Justice is for ever and ever” (p. 36). The planter’s predicament is always unsafe, no matter how powerful he might appear to be. Nature fights against him, and “as power is always stealing from the idle to the busy hand, it seems inevitable that a revolution is preparing at no distant day to set these disjointed matters right” (p. 37). In the twentieth century, Martin Luther King, Jr., followed Douglass’s footsteps and resorted to the universality embedded in the American conception of justice to challenge civil inequalities, and to fulfill Emerson’s hope of setting right matters that were still “disjointed.”
The providential covenant as a central component of the American conception of justice has shown a remarkable resistance to the passing of time. In 1795, Bishop James Madison painted the providential character in a language that was more emphatic than Winthrop’s. God had thrown a veil upon the American continent in order “to conceal it from the nations of the east,” thus saving America from the ravages of tyranny and inequality that went untrammeled in the European nations. The veil would not be lifted until the emergence of “a new race of men” that would be responsible for the redemption of humankind. “It is in America,” Bishop Madison declared, “that the germs of the universal redemption of the human race from domination and oppression have already begun to be developed” (p. 1312). In 1820, Daniel Webster echoed similar themes in his “Plymouth Oration,” and in 1900, Albert Beveridge, the Republican senator from Indiana, portrayed the divine plan that was in the offing.
In addressing the question of acquiring and administering territories whose population, he opined, was not yet ready for self-government, Beveridge asserted that God “has marked the American people as His chosen nation to finally lead in the regeneration of the world” (p. 704). “[O]ur place, therefore, is at the head of the constructing and redeeming nations of the earth” (p. 712).
It is worth noticing that the emphasis on redemption, covenant, natural rights, and government evinced a duty to carry out the designs of divine justice refracted through human institutions. The secular and providential notions of justice thus complemented one another. While the emphasis on legal contracts might have led individuals to seek their own interests, the providential covenant would bring them back to their public duty. It is in this providential notion that one finds the centrality of a legitimate government anchored upon the principle of consent.
The Individual and the State
Another sphere of justice revolves around the proper role of state power and the relationship between individuals and their government. The Federalists bestowed on the American intellectual landscape the best articulation of justice in connection with social order and public institutions. The Federalist view made clear that the institutional framework ought to exist to protect the basic rights of citizens, and property stood out as one of the most important personal rights. Clearly, the root of the centrality of property was derived from Locke’s reasoning in the Second Treatise of Government (1690), which postulates a civil or political society founded on just laws, which are not available in a state of nature, no matter how rational men could be or how harmoniously they might work together. Even in this scenario, common rules of justice, accepted as part of a free compact, were necessary to avoid the vagaries of the individual’s judgment. As already indicated, in the first half of the seventeenth century, the Pilgrims anticipated Locke’s reasoning. In “Federalist Paper number 10,” however, James Madison was more explicit than Locke. Justice, according to Madison, was needed to regulate the potentially lethal conflicts arising from disagreements on property. This regulation envisaged the rise of factions as inevitable, but sought to contain its effects by dispersing those factions through the whole society.
It might appear that Madison’s vision of a society fragmented into different factions would be a denial of Winthrop’s concern for a strong community. But this is not the case. Winthrop’s community was one among many others and, in this sense, it might be seen as a faction in Madison’s use of the term. In a nutshell, Madison argues that the diversity of factions would be the warranty against the prospect of a tyrannical majority. In a fragmented milieu, this majority would lack the means to arise, let alone to succeed. Hence the Lockean need of a central government that was conceived as the embodiment of a just social order seeking to regulate the disparity of interests. The anti-federalists consistently applied the logic of fragmentation. Just as a fragmented society was a guardrail against a tyrannical majority, so also a fragmented legislature would cancel the proclivity to factionalism. Hence a government in which all the classes of society should be represented as both the Federal Farmer and Brutus, two of the leading voices in the anti-federalist cause, insisted.
The slavery question that led to the Civil War (1861-1865) was the lightning bolt that limned the fissures underlying the moral and political landscape of the American society. Even when Lincoln’s paramount concern was the preservation of the Union, and both the thirteenth and fourteenth amendment sought to create a new juridical reality for all people born under the jurisdiction of the United States, justice, understood as a set of principles and regulations serving as the moral compass of both individuals and public institutions, became more fragile and malleable. Neither women nor Native Americans were part of the notion of citizenship implicit in the post-civil war constitutional amendments. And in a series of decisions, the Federal Supreme Court reinstated inequalities and legal boundaries that the fourteenth amendment wanted to remove.
In the Slaughterhouse Cases (1873), the Supreme Court established a distinction between citizens of the United States and citizens of particular states, and concluded that Congress lacked power to regulate state actions in matters of local government, property, and civil rights. In other words, the court reasserted the “disjointed matters” that Emerson had mentioned in 1845. According to the legal doctrine of the Slaughterhouse Cases, the states, not the federal government, would be final arbiters in controversies pertaining to the same issues that had led to the Civil War. It would not take long to show how the purview of the state would perform when dealing with the rights of black citizens. In United States v. Cruickshank (1876), a case involving the murder of African-American citizens in Colfax, Louisiana, the sane court struck down the conviction of three white men. Writing for the majority, Chief Justice Morrison R. Waite found that the right of the victims to “peaceably assemble,” as well as their right not to be deprived of life and liberty without due process, had not been violated. Furthermore, Waite argued that the power to initiate prosecution for murder belonged, exclusively, to the states. This was another way of saying that the dominant beliefs of particular states would prevail. If the states decided not to act, there would be no crime. In the Civil Right Cases (1883), the Supreme Court upheld racial segregation in public places, and in Plessy v. Ferguson (1895), put the seal of legality not only on segregation, but also on the social inequalities that the fourteenth amendment intended to overcome.
These cases show that the providential view of justice of the puritans was superseded by all the ramifications embedded in the very first phrase of the preamble to the Constitution: “We the people …” It was a phrase that departed from the self-evident truths so prominent in the Declaration of Independence. And this phrase carried a foreboding about the unstable and precarious role of natural law arguments in the American conception of justice. More than a democratic sentiment, “We the people …” expressed the design of a secular order without any transcendental anchors. Since the phrase, along with the whole constitutional text, would receive its authoritative interpretation from a political institution presiding over a society that blurred the line between diversity (in which there are some common links) and fragmentation (in which common links are absent), the outcome would be far too evident. It is ironic that Representative John A. Bingham, Republican from Ohio, referred to the universal and “higher laws” principles that he saw inscribed in the Declaration of Independence when he argued for the need of the Fourteenth Amendment, while the Supreme Court would resort to the particular beliefs of the states when eroding the clear meaning of this amendment.
The fractures of a social order continued unabated in the early twentieth century, especially with the territorial expansion of the American empire. The newly acquired territories after the Hispano-American War (1898) would be excluded from the constitutional protections available to white citizens.
In the Cherokee Nation v. Georgia (1831), the Supreme Court abandoned the providential view of justice, and upheld rights emanating from an idea of cultural superiority; namely, upheld rights stemming from the power to define and impose a definition of a superior culture. In the Plessy case the Supreme Court mangled the constitutional meaning in order to demarcate a new reality that justified segregation and inferior citizenship. Thus, the trajectory of the United States Supreme Court clearly suggests that the idea of justice as a dimension of natural law has stood on precarious grounds and not played any significant role in legal controversies concerning minority groups. Natural law served neither Native Americans nor African-Americans. Natural law presupposes an agreement on universal principles of morality, an agreement that, in a context of moral and cultural fragmentation, was nowhere to be found. Native Americans had to be civilized. A civil war was needed to alter the juridical classification of African-Americans. Yet, natural law arguments continue to lurk in judicial decisions addressing private conduct or decisions. The right of privacy seems to be the closest area whose underpinning insinuates natural law principles.
As Gordon Wood argues, the pluralism so dear to the anti-federalists triumphed in the short run and became the dominant conception of politics in the American society. It was in the context of this pluralism that John Rawls developed and polished what turned out to be the most influential theory of justice in the intellectual vistas of American society during the last three decades of the twentieth century.
With the publication of A Theory of Justice (1971), John Rawls set out to establish the institutional framework and the moral principles of a well-ordered society conceived in perpetuity. He did this by constructing an imaginary scenario that he called the “original position” and designing the parties who were to deliberate about the agreement that would rule their society. The arguments were then premised on the social-contract tradition to the extent that the end of deliberation was to reach a binding agreement for present and future generations. In the first version of his theory, Rawls saw the agreement on justice as a paradigm that would apply to all societies. In the original position, “a veil of ignorance” covers the parties, which means that they lack knowledge about their gender, race, social status, philosophical beliefs, and religious beliefs. In other words, they are selves that, placed in a context of fairness, would arrive at a fair agreement. This is why Rawls calls his theory “justice as fairness.” The assumption is that the lack of knowledge about personal and social features would lead the parties to advocate an institutional arrangement that would benefit all of them. The original position brings forth a basic agreement on two principles of justice: the principle of equal liberties and the difference principle. In Justice as Fairness. A Restatement (2001), Rawls offers his last articulation of these principles:
- Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and
- Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions 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 (the difference principle). (pp. 42-43)
The principle of equal liberties protects constitutional essentials that will be settled once and for all. There is no need to deliberate about them. The difference principle sets a goal, which is to maximize the long-term expectations of the least advantaged members of society over the long run. This maximization, Rawls believes, is achieved by providing a social minimum to the disadvantaged. It is worth mentioning that the right of property does not count as one of the constitutional essentials. Rawls even defends the creation of a distributive branch with the responsibility of watching over society to rein in excessive inequalities, though what counts as excessive is not specified.
In a second version of his theory, Rawls abandoned the quest of universality and declared that the parties were representatives of democratic citizens; namely, historical members of a particular society. His theory depended not on a metaphysical view of persons as empty shadows but on the political culture of the United States. In Justice as Fairness: A Restatement, Rawls says that his theory takes into account three kinds of contingencies: social class, “native endowments,” and “good or ill fortune.” In light of this political culture, Rawls believes, there are two intuitive ideas that will justify the choice of his two principles of justice. The first idea stands for the moral equality of all citizens, while the second defends a system of fair cooperation. Bound together, these two intuitive ideas are seen as already embedded in the political vocabulary and practices of a constitutional democracy. More importantly, they are completely free of what Rawls calls “comprehensive moral doctrines,” which are doctrines that seek to provide all or partially encompassing answers to the deepest questions surrounding the meaning, if any, of life and the human good.
In the three decades after the publication of Theory, Rawls expanded and modified his arguments in several areas, while leaving intact its basic tenets. The most important upshot of his reflections was the articulation of what he called “political liberalism,” a liberalism that is bereft of questions of truth, the human good, and any transcendental realm; that is, it eschews any form of comprehensive doctrines. These doctrines are seen as belonging to the private sphere, and citizens should not use them in deliberations about justice. Furthermore, justice is expected to supersede the injunctions of comprehensive doctrines even in the private domain.
Under the aegis of political liberalism, the emphasis is not so much on distributive justice as it is on the quest of an overlapping consensus embracing all reasonable doctrines that may flourish in a constitutional democracy. Political liberalism is deeply aware of the fact of pluralism in modern times and the impossibility of having a universal agreement on a single conception of the human good. Hence the need of fair principles of justice to achieve the overlapping consensus Rawls seeks to undergird stability. Rawls assumes that “justice as fairness” is capable of commanding the kind of support a theory of justice needs to provide stability. He further assumes that, in a well-ordered society, citizens see themselves as fully cooperating members of society over their whole life. The terms “reasonable” and “fully cooperating” mean that people will see the two principles of justice as moral principles, abide by their outcomes, and use them in choosing and revising their conceptions of the human good.
Rawls’s theory is vulnerable to a question that “justice as fairness” leaves unanswered: how could the second principle maximize people’s long-term expectations when all Rawls expects from the state is the allocation of a social minimum? This question leads to a problem that haunted the Rawlsian view. In both Theory and Political Liberalism Rawls accepts that his well-ordered society is compatible with the existence of large economic inequalities. As long as the constitutional essentials are preserved and the difference principle is in operation, these inequalities will not tarnish the moral character of a Rawlsian society. Though the issue of large inequalities is present in Justice as Fairness: A Restatement, Rawls introduces the following modification. Instead of writing about maximizing the long-term expectations of the least advantaged over the long run, he writes about “an appropriate interval of time” in which the expectations mentioned above should be maximized.
Other Theories of Justice
Though John Rawls’s theory of justice set the context for discussions of justice in the last three decades of the twentieth century, it was not the only theory advanced. Ronald Dworkin developed his own theory that he calls “Equality of Resources.” This theory insists that, without the need of resorting to an original position, people ought to be aware of the true cost of their life-plans for other people, and to be willing to redesign these life-plans when they go beyond the fair share of resources available to all citizens. Unfortunately, Dworkin is not clear about the criteria and the institutions that will decide what a “fair share” of resources is and when the individual is taking more than what this “fair share” demands. Iris Marion Young brought to the fore an alternative conception of justice that relies not on an abstract equality but on the recognition that different groups have different needs and, accordingly, may require unequal allocations of public resources. At first sight, this view seems to reject the universal understanding of justice that imbued the Rawlsian philosophy, but, ultimately, Young advocates general rules of justice to regulate the competing interests of a group-based politics.
Communitarianism and Liberalism
During the 1980s, the American conception of justice revolved around the conflicting arguments of liberalism and communitarianism. The ensuing debates had at their core the role of visions of the human good and the question of how the individual’s identity is formed, and not issues of distributive justice. Michael Walzer, Michael Sandel, and Alasdair MacIntyre stood out as thinkers who challenged the Rawlsian view and its design of a situation in which selves who are bereft of any contingent traits are expected to arrive at a universally binding agreement on justice. On this issue, the communitarian side won the day. Rawls admitted that the parties to the original position are representatives of democratic citizens, thus introducing a substantial element of contingency into his assumptions. On the further issue of the need of shared values to sustain a just order, the communitarian standpoint also prevailed. Rawlsian justice obtains guidance and derives its principles from the common values that distinguish the constitutional democracy of the United States.
But for all its insistence on how conceptions of the human good ought to guide visions of justice, communitarianism did not muster enough theoretical resources to deal with the fact that, in contemporary societies, multiple and opposing views of the human good are fated either to accept one another or to compete for supremacy via state power. This is not to say that the different versions of political liberalism articulated, among others, by John Rawls and Charles Larmore, fared better. In Rawls’s and Larmore’s theories, the agreement on principles of justice has an important rider. The agreement is only concerned with people who may hold reasonable conceptions of the human good. And a reasonable conception is one that accepts the principles of justice. Communitarianism excludes conceptions of the human good at variance with the dominant views of a particular society, and contemporary liberalism excludes comprehensive doctrines that justice has not certified as reasonable. Yet, the liberal argument that, in a context ridden by conflictive ideas, an agreement on principles of justice is more feasible than one on a conception of the human good, remains unassailable.
The end result is circularity, which according to Richard Rorty is the most that can be expected in a world devoid of ultimate foundations. Individuals ought to justify their principles, Rorty argues, not by invoking a transcendental realm or a universal or true morality, but by referring to those principles and institutions that have proven, so far, to provide stability and respect for people. A conception of justice should be described by making reference to its outcomes, and these outcomes ought to be described by referring back to the principles of justice.
Michael Walzer was the only philosopher who put forward a communitarian version of justice. Walzer’s theory distances itself from the Rawlsian paradigm by positing a diversity of social goods that obtain their meaning from their society and inhabit different social spheres. These spheres are not meant to cross their boundaries. The sphere of need is not the sphere of desert and, accordingly, they should not be judged according to a single criterion. Similarly, a social good in one sphere should not carry any import in another or, in Walzer’s words, should not be “convertible.” Wealth in the economic sphere should not be translated into more political power or access to better health care. He calls his theory “complex equality” as a contradistinction to “simple equality,” which is the term he uses to describe Rawlsian justice. In simple equality, the state needs to intervene frequently to curtail any hindrances that may undermine the difference principle. In complex equality, “the autonomy of distributive spheres” is vindicated, and individuals, not the state, would have “local monopolies,” but social conflicts would be diffused across the social and political spectrum. Local monopolies refer to the goods some people may control. Physicians, through their education, experience, and talents, control their areas of expertise. But it does not follow that this monopoly entails power to determine people’s needs. These needs ought to be defined by the community. “Equality,” Walzer writes, “is a complex relation of persons, mediated by the goods we make, share, and divide among ourselves; it is not an identity of possessions. It requires then, a diversity of distributive criteria that mirrors the diversity of social goods” (p. 18). The demarcation of the spheres of justice will depend on the dominant morality of a particular society. While Rawls argues that his arguments belong in the realm of ideal theory, Walzer goes into historical examples to buttress his theoretical reflections.
Moral Context of Justice
The last word on the moral context of justice in American thought might belong to William Connolly and Alasdair MacIntyre. Connolly defends an agonistic ethos in which a person’s identity, the same identity that the Puritans saw as fixed by God’s grace, could recognize its contingent character. In this recognition, Connolly sees a conversation in which cherished assumptions about the individual’s character and the United States’ foundations would be open to redefinitions and negotiations. MacIntyre did not feel at home in this conversation, which in his view is sequestered by a liberal marketplace of ideas regulated by justice. In his discussion of virtue, he envisages a rather dark horizon for the American intellectual landscape. Current times, he argues, are analogous to the era when the Roman Republic dwindled and finally fell. As in those times, citizens should retreat from the public sphere and move to small communities that may share the same conception of the human good. This, again, is the fragmentation that has been a constitutive element of the American landscape. Rawls himself is not free from the suspicion that his theory, though envisioning a stable interplay between a multiplicity of social unions, is ridden, too, by a fragmented ethos.
Indeed, Rawls’s theory treads its way along two paths that are prone to deny one another. There is a strong sense of community to the extent that members of particular groups see their worth as being determined by the appreciation they receive from others. For self-esteem, in Rawls’ view, does not depend on the individual’s convictions, but on the external approval of his or her peers. This is similar to Winthrop’s understanding of love, which is an “apprehension of some resemblance in the things loved to that which affectes it … soe a mother loves her childe, because shee throughly conceives a resemblance of herself in it” (p. 37). As in the Puritan context, the Rawlsian sense of community requires clear delimitations. Since a Rawlsian society may have large inequalities that, through envy, may bring havoc to stability, the plurality of associations comes to the rescue. These associations tend “to reduce the visibility, or at least the painful visibility, of variations in men’s prospects.… The various associations in society tend to divide it into so many noncomparing groups, the discrepancies between these divisions not attracting the kind of attention which unsettles the lives of those less well placed” (Rawls 1971, p. 537).
From John Winthrop’s message that the rich and the poor ought to accept their place as part of a divine order, to the Federalist recognition of the unavoidability of factions, the anti-federalist advocacy of a fragmented legislature, and John Rawls’ call to avoid the “painful visibility” of “variations in men’s prospects” by dividing society into “noncomparing groups” that would not intersect in their respective paths, unity and fragmentation stand as consistent strands in the way justice has been woven into the inner fabric of American thought. In this consistency, “justice as fairness” appears as a dim echo of the arguments John Winthrop put forward aboard the Arabella.