Search for justice in a faction nation

We live in difficult times. Our nation is overly politicized and polarized. In the conservative and progressive camps we see increasing rifts: left-wing competing “identities” whose only political language seems to be victims and oppression; right new brands of conservatism and reaction such as national conservatism and integralism, leaning towards an authoritarian state. Our welfare system creates cultures of dependency even when costs rise to levels that are impossible to sustain. Our borders are not well maintained; Our most basic freedoms are increasingly being attacked. Our educational institutions are disconnected from reality and our political discourse is hideous.

Some observers want to argue that this is just as American politics always is – that factions are nothing new and that John Rawls’ theorizing is an attempt not to reform politics but to eliminate it. But the nature of our politics today is not normal and the reason is not far to be looked for. Because government has grown so dramatically in size at the national level and now blends into almost every aspect of our lives, the stakes have never been higher. Our elections are controversial and increasingly competitive because no one can afford to lose control of the colossal power that is to be won. As a result, our political culture has become increasingly belligerent. We see our political opponents as enemies who must be defeated, a la Carl Schmitt, and not as fellow citizens with whom one can argue and compromise.

One of the most violent conflicts in our current political culture concerns the importance of justice. “Social justice,” “redistributive justice,” and “justice” vie for supremacy over more traditional notions of justice based on mutual rights and duties and reasonable notions of merit.

I am not accusing John Rawls of wondering aloud whether we could somehow reach an agreement on our most basic notions of justice so that we could have a common touchstone for political deliberation. As I said in the opening essay of this symposium, “On the Legacy of a Theory of Justice,” I think Rawls ultimately failed, even though he anticipated that our political culture may not survive its ordeal with radical pluralism.

Some political theorists argue that pluralism is nothing new, citing Madison’s discussion of factions in Federalist 10 as evidence. You are right that factions are nothing new, but you forget that Madison’s plan was to neutralize them in national politics by competing against each other. His theory was that by increasing the number and diversity of factions and encouraging them to fight for power so that the common good could rise from the ashes like a phoenix, they would cancel each other out.

But Madison’s factional theory never worked, and he admitted that he had done so much during the Washington administration seeing how effectively Alexander Hamilton was able to implement his faction’s plan for national industrialization. Contrary to Madison’s hopes, America could never prevent factions from rising to national dominance. What we have seen instead is a story of alternate factional rule, not non-attached government for the common good.

As the national government has grown in size, factional warfare has become a real threat to the nation. We are at or near a point where the results of democratic elections are not being appreciated. What can we do to prevent our nation from falling apart?

Although John Rawls was an important political theorist, he did not solve the problems of radical pluralism. Nor did he cause them, as was sometimes suggested in this symposium. But he recognized that intense fractionism (or pluralism) posed problems, and his work was an attempt to address that fact. We should do the same.

What our current politics shares with war, however, is a deeply felt enmity, a desire to disempower and ultimately eliminate the adversaries, and the expectation that the spoils (which consists of absolute control over national politics) will be completely defeated after victory Benefits winners.

Progressives seem to believe that they will end our political struggles by pushing their progressive agenda harder and harder in court, if possible through legislation, executive ordinances, and propaganda in the media, entertainment industry, and our schools. But that won’t work. Even if progressive public policy were itself coherent and a source of political stability (which it is not), conservatives don’t just walk away. But conservatives don’t have a credible strategy either. They seem to believe that if they uncover the way progressivism deviates from the founders’ constitutionalism, which is based on natural rights and republican virtue, they will somehow defeat the progressives. But the progressives (including Rawls) are not at all puzzled by their deviations from the constitutionalism of the founders. And they don’t go away either.

In the tradition of the just war, one of the criteria of jus ad bellum is a judiciously informed judgment about the likelihood of doing more good than harm. You need an “endgame,” a credible plan of how a particular war will serve the good. Unintended side effects must be considered seriously. The overarching impact of the war must have paid off. In American politics today, we seem to be involved in some kind of “war”. I am using the term metaphorically here to denote not the actual struggle but the political struggle. What our current politics shares with war, however, is a deeply felt enmity, the desire to disempower and ultimately eliminate the adversaries, and the expectation that the spoil (which consists of absolute control over national politics) after victory will be complete goes to the winners.

But the endgame here isn’t believable. The “probability of success” is low and the efforts themselves can do more harm than good. In other words, the way we conduct our political battles today does not meet the most basic requirements of a just war.

It is relatively easy to criticize John Rawls. His style of prose, as Burton Dreben once remarked, was like something translated from Standard German. His attitude was rationalistic, his way of abstracting “moral theory”. He was a progressive who mistook his historically based and fashionable progressive ideas for an obvious truth. And he was anti-democratic in both his theory of legitimacy and his high hopes for judicial rule.

Nonetheless, he was a thinker whose work throws considerable light on the problem of pluralism and the profound challenges it entails for the stability of a liberal-democratic regime. There is much more for political theorists to do than focus on the problem that preoccupied Rawls, but it is an extremely serious problem nonetheless, and it is not clear to me that we will survive it.

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