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Rawls and subject 18

March 29, 2017
  • Judiciary and judge

With this, the author shifts to the last stage of the four-stage sequence: the judiciary. As above, we may ask three basic questions of this stage: 1.) why does the author speak of a judiciary? 2.) what complications does a judiciary face?; 3.) what is the standpoint appropriate to a legislature?

On the count of 1.), Rawls’ response may initially seem more equivocal than his presentation in Political Liberalism’s “Response to Habermas” suggests. Although the judiciary’s role as the fourth stage would follow from the fact that persons in society encounter problems with regards to certain laws and policies and ordinarily have recourse to the judiciary to redress those problems, Rawls broadens this last stage to include not just “the application of rules to particular cases by judges and administrators” but also “the following of rules by citizens generally”[1]. Yet the latter goes entirely without mention in his summary in “Response to Habermas”. What reason can Rawls give for this omission?

One could attribute the omission to lack of space, but this does not prove a satisfying explanation, given the considerable length of the essay. Rather, it seems more likely that this mention of rule-following follows from structural considerations. If particular persons do not follow and apply the rules in society, thus engendering the sorts of conflicts liable to come to the judiciary’s attention, then the judiciary’s work of constitutional and legal review simply cannot proceed. This would satisfyingly account for both the inclusion and omission as such structural features go without saying, to a certain extent.

Moving to 2.), the difficulties which the judiciary confront are not those of setting the limits of political obligation and duty, which are determined by partial compliance theory[2]. Instead, the judiciary tasks itself with assuring proper fit between, on one hand, the principles of justice, constitutional process, and legislative statues and policies and, on the other, particular cases and considered judgments, so as to ensure reflective equilibrium at all levels and, hence, between stages. Reaching equilibrium across stages requires, however, a specific standpoint unavailable to the others.

Thus, answering 3.) gives us the judge standpoint. Presumably, the judge standpoint builds on the party standpoint while allowing for broader information in comparison with the delegate and legislator standpoints. Indeed, Rawls sees no further reason to maintain restrictions on information with regards to the judge standpoint. He allows that “everyone has complete access to all the facts” given that “the full system of rules has now been adopted and applies to persons in virtue of their characteristics and circumstances”[3]. Whereas as the process set up by constitution can naturally proceed, for the delegate standpoint, without reference to particular persons, the judiciary and the judge standpoint cannot proceed similarly. For instances of judicial review entail reference to a particular problem experienced by a particular person whose characteristics and circumstances will form part and parcel of the review process. Deliberation and justification must proceed apace with regards to particulars.

Two questions present themselves at this juncture. First, one may ask whether the judge standpoint retains the hallmarks of the party standpoint despite the introduction of particulars. Again, insofar as the person occupying the judge standpoint a.) accepts the principles of justice and applies constitutional procedure and legal statues derived in accordance therewith and b.) allows the individual person’s particular characteristics and circumstances to inform rather than determine the deliberation and justification, then c.) there seems little reason to doubt that the decisions reached in the final stage of the decisionmaking procedure are not, in the relevant sense, depersonalized, symmetrical, autonomous, reasonable and public. In other words, the decision reached through the judge standpoint is not contingent on the individual person’s characteristics or circumstances but, instead, on the principles of justice[4].

A second question emerges in the form of an ambiguity over the relation between the judge standpoint and the standpoint of “you and me”. After all, if the judge standpoint consists in determining the fit or adequacy of principles, process and statues to particular cases, on which it then issues a judgment, it resembles the standpoint of you and me from which a person works out the four-stage sequence and reflective equilibrium. That said, there is a difference of level: the judge standpoint is internal to the four-stage sequence whereas the standpoint of you and me elaborates the four-stage sequence.

[1] TJ, p. 175.

[2] TJ, pp. 172, 175. Cf. §39. Strikingly, Rawls seems to consider the determination of such limits as a necessary preliminary to the judicial stage, albeit a preliminary which does not appear therein as a separate stage. In restricting ourselves to the four-stage sequence laid out in PL, we thus leave this consideration aside.

[3] TJ, p. 175.

[4] This recalls Rawls’ discussion of hypothetical imperatives at LH, ____.

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