Thomas More Institute

Introduction

The topic that I will be looking at this evening will be related to some of the concerns that Thomas More had. In fact, my objective this evening is quite modest as I am an economic geographer who has an interest in philosophical issues but I am certainly not a political philosopher. I came across the work of Martin Rhonheimer very recently and I was very impressed with it and particularly with his paper, ‘The political ethos of constitutional democracy and the place of natural law in public reason: Rawls’s “Political Liberalism” revisited’, The American Journal of Jurisprudence, 50, 1-70. My objective, if anything, is to promote Rhonheimer’s work because of his very interesting approach and because he is a very open-minded scholar. He is also quite radical and in some ways subversive, which appeals to me a lot!

Basically he is providing a critique of the Rawlsian approach to political philosophy, looking at the idea of public reason and how it has developed historically in relation to common duty and the natural law.

 The evolution of public reason, the common good and natural law

Rawls’s interpretation of public reason, in Rhonheimer’s view, is too narrow – it falls short of what he would regard as a sound understanding of the ethos of constitutional democracy. It is clear to me that Rhonheimer is someone who has a huge regard not only for John Rawls and for his work but also for the whole reality of constitutional democracy and of liberal-democratic thinking. His objective is not to refute Rawls’s political liberalism which he regards as a very important contribution – almost adequate for the job and for understanding how politics works in the societies in which we live – but he also wants to point out shortcomings and suggest some improvements.

 ‘Free and equal citizens’

One of Rawls’s key ideas is that society is very much built around the idea of ‘free and equal citizens’. Rhonheimer says Rawls substitutes the foundation of liberal constitutionalism in natural law with this simple idea of reciprocal acknowledgement of free and equal citizens. Indeed, Rhonheimer argues that liberal constitutionalism has evolved within a natural law context. In other words he is not trying to introduce something new into that way of thinking.

The point he is making is that Rawls has actually excluded from liberal constitutionalism natural law whence it evolved historically. He argues that Rawls is making a mistake caused by confusing the relation between public reason (which we will develop later) and natural law, leading him to ignore the latter altogether. There are, in fact, many natural law commentators who would be much more critical of Rawls than is Rhonheimer who takes a rather dialectical approach to his work. Correcting Rawls involves a different understanding of the relationship between public reason and natural law.

Political philosophy and natural law

Rhonheimer suggests that political philosophy deals with practical problems in a real historical context. Politics is pragmatic and tries to solve day-to-day issues in people’s lives. He is concerned that Rawls’s approach is too abstract and too far removed from any specific historical context, but he also makes the point that, in political philosophy, a ‘metaphysical’ approach will not work.

Natural Law is, so to speak, all-encompassing and therefore not all of it is relevant to politics. The emphasis in natural law will be on personal moral issues and Rhonheimer makes the point that you cannot simply ‘lay down the law’. Only a couple of decades ago there were in Northern Ireland all sorts of rules regarding the opening of pubs on Sundays. It is possible to get carried away about aspects of life where it is not actually necessary to lay down dogmatic regulations.

The political, on the other hand, is actually focused on the masses – rules and regulations for the functioning of society. It is about the legitimate coercive rule of the State. Political rule is exercised over free persons who represent a plurality of interests – and that needs to be justified and based on consent. We are living in increasingly pluralistic and multicultural societies which contain a wide range of approaches to life. There are huge challenges here, and somehow we need to be able to work out a system whereby we can all live peacefully together.

 Early contributors

Rhonheimer goes back in history to the 14^th century and Marsilius of Padua who was one of the first to develop an idea of ‘public reason’ in the sense of discovering the ‘political’ as a specific kind of reasonableness by which there is worked out in society a reasonable approach towards decision-making. That working out has taken place in a history of continuous conflict which has made people believe the main task of public power to be not the achievement of a supreme good, but rather avoidance of the supreme evil of civil war.

Now you can come back on that and say there is some sort of compromise present but the point Rhonheimer is making is that the experience of history – civil strife and particularly religious differences – gave rise to this idea as the political objective.

Rhonheimer also looks at Jean Bodin (1529-96), a French jurist, whom he sees as the progenitor of ‘public reason’ in its modern form. In his time, when there were wars between Catholics and Huguenots, there was the emergence of ‘politicians’. Bodin advocated a strictly political solution for the problem of religious diversity.

 John Rawls

Now we move on to John Rawls, the key figure on whom I wish to concentrate this evening. Here we have the début of modern political reason. This, for Rawls, is marked by a distinction between higher (existential) values and political values. The distinction is very important in Rawls’s thinking. He has revived the idea of public reason and drawn on this distinction. Rhonheimer notes that Rawls does not actually make this distinction in his work but believes there is continuity in terms of the idea of public reason.

Rawls proceeds to consider an ethic of responsibility. We mentioned earlier the areas of the personal and the public. Here we are talking about an ethic of responsibility which prioritises the political (area of consensus) over the personal and moral (higher values) – with a focus on what is politically possible and achievable in favour of consensus.

There is controversy over where the line should be drawn in prioritising. Rhonheimer gives many interesting examples about very contentious issues like abortion, euthanasia, same-sex relationships, and so on. He suggests someone with a natural law perspective might argue that many people live in societies where there is, for example, legal abortion, to which they are very strongly opposed while still employing an ethic of responsibility in relation to the political system. We are all familiar with the idea of ‘the people have spoken’. In the back of our minds we might wonder what they were thinking of, but we nonetheless respect the democratic system.

 Rawls’s basic assumption in his theory of justice

Rawls’s basic assumption in his theory of justice is that society is a contract between what he calls ‘previously non-social individuals’: that is his ‘original position’. Rhonheimer discusses two of Rawls’s important books, A Theory of Justice and the more recent Political Liberalism. He thinks it a strange idea that there can be any ‘natural rights’ independent of man’s existence as a social being and therefore believes this part of Rawls’s system needs to be rejected. Rawls does not view people as social beings but rather as ‘non-social individuals’, theorising that before a contract is stipulated there exist only the individuals who stipulate it, and that a social contract refers exclusively to the interest of such pre-social individuals. It is a very individualistic view of society wherein individuals have maximum freedom in a relationship of maximum reciprocity.

 The nature of society

The key idea here is that there are different views of society. For Rawls, society and the State are to be understood only as means to promote individual interests and preferences. Rhonheimer suggests this must be abandoned, for we cannot see society with this outlook. ‘Society’, in Rhonheimer’s perspective, is a reality which naturally coexists with the individual human person, so that a person’s interests are defined respecting his/her existence embedded in society. It means that persons are members of families, living in neighbourhoods, part of a community, and so on. There are rights and obligations which must be defined in the context of people living as social beings. Fundamentally it is about what it means for the person to be naturally a social being.

Rhonheimer is saying, then, that there is a contradiction here regarding the political ethos of modernity: the effort to exclude from public reason basic questions about the nature of society and what naturally makes human persons to be social beings. It is interesting that he suggests these very important issues of value are empirical questions. He believes we can study them and the historical trends changing society over time. We can produce varying commentaries about what would be best, what would be good, what bad, and so on, for the ways in which very different societies have developed.

These basic questions express what naturally forms the essential structure of society and in that sense Rhonheimer is making the reasonable argument that these are at the root of what politics should be about. When he talks of these values about which he is concerned and which are being excluded from Rawls’s view of public reason, he is talking about things like the value of human life from conception – this was legally defined a long time ago –, the dignity of human person, the reproductive marital union of male and female and the family rooted in it.

So this can get a bit abstract and can get a bit theoretical but these are the core concerns of Rhonheimer. Rawls’s idea is to avoid controversy at all costs and to remove any basic area that would be contentious.

 Rawls’s theory an abstraction

So from Rhonheimer’s point of view, Rawls lacks an adequate conception of what society is really about and also of the human person as a naturally social being. Rawls’s emphasis on the idea of ‘free and equal citizens’ makes for abstraction from what persons naturally and really are as social beings. We cannot describe society as simply a co-operative venture of individual citizens; an anarchical model wherein people agree to maintain maximum freedom to do their own thing and society exists just to serve our personal interests without any connection to the ‘common good’.

To reiterate, politics refers to what citizens are: parents, family members, children, even the unborn, property owners, and neighbours. Rhonheimer would say that this is the way key thinkers in political philosophy – Hobbes, Locke and others – developed their ideas. Many others have been concerned about property, the varied relationships in society, and so on.

 Real politics

So what is ‘real politics’ about? Politics must deal with persons as they are in reality – as fundamentally social beings that are naturally related to each other in very determined ways: for example, the marital reproductive relationship between male and female, marriage and the family. This is what politics should be concerned about. It should have a vested interest in these things. Rhonheimer is emphasising very strongly that is it not about promoting moral values as such but rather about constructing practical political thinking based on the empirical reality of people’s lives.

 Agreement with Rawls, but…

As we mentioned earlier, Rhonheimer is very appreciative of the contribution Rawls has made and is much in agreement with the things he is saying: ‘The idea underlying Rawls’s liberal principle of legitimacy is nothing else than the expression not simply of “liberalism”, but of the soul of constitutional democracy as it has developed through the last centuries of European and American history’.

Yet Rawls gives this idea a turn which is clearly hostile to natural law in the sense that it does not allow natural law reasons as such, on the basis of their claim to contain truth, to be public reasons. This is the problem with which Rhonheimer is faced.

 Reciprocity

Just to say a few things about one of Rawls’s key ideas relating to his ‘free and equal citizens’: that of reciprocity. For Rawls, other citizens must be able reasonably to accept the reasons we put forward for our political actions. Rhonheimer suggests that is going too far and that it contradicts reasonable pluralism. He even says that this is really a libertarian approach to these issues. Rawls is misusing the principle of reciprocity: we cannot reduce the idea of ‘public reason’ simply to the criterion of reciprocity. As Rawls is arguing, reciprocity must determine the logic and content of public reason. Rhonheimer contends that it must be the other way around: the idea of reciprocity must be derived from how you define public reason.

 Public reason à la Rawls

For Rawls, public reason is a view about the kinds of reasons, concerning fundamental political questions, upon which citizens are to rest their political cases in making political justifications to one another when they support laws and policies that invoke the coercive powers of government.

 Public reason and reciprocity

Rhonheimer is concerned about the reduction of key public reason to the simple idea of unqualified reciprocity. He argues that this is politically unreasonable. It must be defined independently from, and prior to, the criterion of reciprocity. Reciprocity must be politically qualified. It is not possible to have it every way: you have to lay your cards on the table and define politically what it is you are talking about. Rawls does not do this. He does not qualify what reciprocity is about, and in some cases he affirms that the content of public reason is defined simply by the criterion of reciprocity.

For Rawls’s model – one wherein public reason is dependent on the idea of reciprocity – it works arbitrarily as leverage for the preferences of individuals conceived as ‘free and equal citizens’. Free and individual citizens can pursue therein their own personal agenda. It reduces society to an aggregate of individuals who pursue personal preferences, and public reason as a means of furthering such preferences, often at the expense of the political common good of society. I think that describes quite well where we are at in many societies today. There is not really to be found in public policy any clear idea, for example, of the family. If you mention the family to politicians they find it very difficult to agree on what a family is. The same applies to the idea of a common good, and so on.

Rhonheimer would say that the concept of public reason must also include consideration of the natural reproductive union of male and female, of the family and its educational task, as well as the interests of local communities. All of this is relevant for the shaping and meaning of the content of public reason, and therefore belongs to political reasonableness. These should be core areas of what politics is about. Rawls, however, explicitly rules out such a conception of public reason.

 Pre-political substantial values not to be excluded

Rhonheimer’s criticism then asserts that these pre-political substantial values are not to be excluded. They not only contain the essence of what politics is called into being to deal with, but the very nature of the reality of human society to which political justice refers. The concept of reciprocity cannot be allowed to have the task, if you like, of singling out what are the basic doctrines about society. The union of male and female and the family can legitimately be the content of public reason. These basic truths about society bestow on this criterion its properly political meaning.

 An unreasonable concept

Rawls does not succeed in defining properly what characterises the political. This is an interesting criticism of someone who is often regarded as the greatest political philosopher of the twentieth century and in line with the great philosophical thinkers of all time. Yet here in key areas of his thinking he is not defining in a clear way what characterises the political. His specifications are all circular.

Rawls’s problem, according to Rhonheimer, is that if he was to define what a political value is he would have to refer to something which could be called a ‘partially comprehensive’ doctrine. Rawls excluded natural law thinking and all such reasons from political philosophy and he excluded them particularly in the terminology of ‘comprehensive doctrines’, thinking that comes from religious sources and so on.

I hope I am not misrepresenting Rhonheimer here but in some ways his point here makes me wonder about the ‘whole metaphysical thing’. I will not develop this here, but how do you define political value without having some connection to what Rawls calls a partially comprehensive doctrine? Rawls instead relies on the rather vague idea of reciprocity. This is why his concept of the political is so under-determined, and turns out in the end to be unreasonable.

 Natural law and public reason

Natural law must be applied to the political sphere. It cannot, however, be introduced by an assertion that it is so important that everything else must fall into line with it. It must be introduced in a political way according to criteria which are specifically political, i.e., which belong to public reason. Politics is not about sin or about making people holy. Natural law reasons must refer to the common good of society and in this way be acceptable to citizens who do not agree with them in any determined case.

It is a huge challenge to argue in a political way about what is important. Rhonheimer suggests one can do this in an empirical way and from an empirical perspective. Look at the data and say where society is going and try to argue a case… Here we are at this particular point in time… Look at other societies and where they are… Where do we want to be in ten or twenty years time?

 Political values

Rhonheimer agrees partially with Rawls that modern democratic societies need a concept of public reason. It is useful to suggest that public reason does not legitimate itself in terms of being being true or right reason. We cannot justify right reason in that sense. Rhonheimer also makes the point that this does not contradict the view that public reason is fully reasonable only to the extent to which it corresponds to, or does not contradict, the natural law. So although you cannot use natural law totally and indiscriminately, it can be a very useful guide for looking at public policy.

 Conclusion

Rhonheimer has a lot of respect for the work of Rawls and it is very difficult to criticise someone who has had such a huge influence on political thinking and is so widely quoted. A straightforward critique is not going to get rid of him – certainly, at least, not one by me! While it certainly needs adjusting, Rawls’s original theory of political liberalism serves as a useful conceptual framework for better understanding how in liberal constitutional democracy natural law must be thought of as part of public reason. Many people can see natural law from a Christian perspective, but it can be seen from an Islamic or other perspective.

Discussant

Russell Wilcox: First of all, I do not think Rhonheimer specifies to what extent, and in what particular way, Rawls’s framework is a useful starting point. Another great political philosopher, Habermas, who starts also from a post-metaphysical Kantian perspective criticises Rawls precisely because he presupposes so monadic a view of the person.

Habermas, with his theory of communicative action (within parameters), has made a very persuasive attempt to say, ‘You cannot just have consensus but must state what that consensus presupposes’. Even though he does not look to the metaphysical underpinnings of things, he says that certain things are presupposed and he lays this out in a very sophisticated way. Coming from the ‘Frankfurt School’ he is attuned to the idea that there are certain constraints on the free and equal interchange of ideas which make real consensus quite difficult to achieve in practice.

In particular, Habermas is extremely critical of what he calls the ‘decisionist’ component in Rawls. He is referring to the pre-social individuals in the original state who simply make a decision about how the political community is going to operate. To me this seems a very fruitful critique, and it is interesting that Rhonheimer does not pick up on that even when he seems to be in tune with Habermas.

In a discourse between Habermas and the then Cardinal Joseph Ratzinger at the Catholic Academy of Bavaria, wherein they addressed religion and public life, some of these very issues were touched upon. Their main point of disagreement arose from Habermas being post-metaphysical and Ratzinger, though cautious about using untranslated categories of natural law, fundamentally a metaphysical thinker. Ratzinger holds that metaphysics is essential, and I think that true. Habermas’s approach is, nonetheless, useful in that many of the things for which he argues in his theory of communicative action are presupposed by the whole notion of reasonable agreement – presupposed, but still falling short of the complete picture.

Rawls offers a notion of agreement and, as Rhonheimer has pointed out, it is just not possible to speak of agreement or reciprocity, full stop, for varied questions are thrown up. The key point is reasonable agreement. What is meant by this? We need a robust notion of what reason is. What are the preconditions for the functioning of reason? This moves us immediately, it seems to me, into the whole question of natural law; not only a cordoned-off set of political notions of natural law, but substantive notions, too. I simply do not see how all that can be bracketed off.

Some scholars have been critical of both Rhonheimer and Finnis in their particular development of natural law precisely because they seem (although this is certainly contentious) to be bracketing off metaphysical issues. Rhonheimer, whatever his caveats, does seem in the end to come up with something like this which seems to me to justify much of the criticism which has been levelled against his framework. Many more traditional natural law thinkers point to the danger of going down a Kantian avenue. I feel there are real questions to be asked here.

I wonder, in fact, whether there might exist at a very deep level in Rhonheimer a confounding of strategy and principle. Is he not turning such strategies as those of us in the natural law camp have had to employ – in order to be heard in a hostile environment – into principles by which we are obliged to act? Partly because of his systematising mind he perhaps wants such things laid down as points of principle when in fact we might be able to agree that in practice we cannot speak without mediation about natural law in the context of liberal democracy. The latter does not mean that we should not do so. Given the hostile environment in which we find ourselves, it is a matter of strategy and tactics only that we may find ourselves forced to do so. If that is the case, the whole debate should be kept at that level, for it is quite dangerous to raise it to the level of principle.

Prof. Seamus Grimes: Just a couple of things. I very much agree with what you are saying. What I find interesting in Rhonheimer’s point of view is that it forces me to think in a different way, a more open way if you like, about the issues. It is ever more difficult to present such arguments in the academy. We do need to learn from others what you might call strategy or ‘playing the game’. Rhonheimer does refer to Habermas in his paper and does not agree with his criticism of Rawls.

The exchange you mentioned between Ratzinger and Habermas, resulting in a short book, The Dialectics of Secularisation, contains some amazing things. Ratzinger refers to the limitations of natural law argument on account of the victory of the theory of evolution with which such a view of nature has capsised.

Russell Wilcox: In Tracey Rowland’s new book, Ratzinger’s Faith, she suggests that Ratzinger is by no means asserting that the natural law tradition is wrong. He is rather addressing presentation, and in fact reacting in particular against a Suarezian or Neo-Thomist approach.

I feel he may be wanting to suggest that in the natural law approach he criticises there is so sharp a separation between nature and grace that it prevents understanding in a properly theologised context. Actually, theology and natural law, both historically and in terms of contemporary debates, can only be properly understood from a theological perspective. Such an effort to get back beyond the commentators to St. Thomas might be classed as ‘Augustinian-Thomist’.

If one links these considerations to the debate about secularised religions in which scholars like Carl Schmitt and Eric Voegelin have engaged, it is possible to gain an interesting perspective. If, in fact, one really has to understand things from a religious perspective, one must also seek to understand even the rejection of religion from a religious perspective. There is a lot in modern political analysis which would tend to chime in with that.

I suggest, therefore, that Ratzinger’s concerns about natural law argument are of a somewhat different kind.

General Discussion

Prof. Luke Gormally: I have not read this particular article by Martin Rhonheimer. What is entirely obscure to me from your exposition of his argument is how he considers one might establish a degree of natural law normative content politically, and a conception of the common good on a purely empirical basis.

I presume by empirical basis he means what people are empirically willing to agree to. I was interested in the terminology you used, for example, the natural marital union of man and wife. What in fact does that mean in terms of political norms in a society? If, moreover, we are talking empirically about the current state of opinion there seems to exist very little in the way of a consensus that would coincide with a natural law conception of the reproductive union of man and wife.

I do think Russell’s point about whether Rhonheimer is trying to turn into principle what might well be a necessary strategy is a key question. For, if he is, it seems to me at least that his principles are pretty hopeless.

Prof. Seamus Grimes: I appreciate what you are saying here. If one is to stand on the empirical, the trends are certainly not helpful in relation to the traditional family.

Russell Wilcox: I was reading recently two pieces which might be relevant. One was by Habermas who has a notion of ‘reconstructive science’. Using Chomsky’s notion of deep structure, etc., you can say what is considered good and then go back to see what is presupposed. This he utilises in his theory of communicative action. If you want reasoned agreement, you should ask what that presupposes and afterwards go back and back further. It may not be exactly empirical but it certainly examines terms in use and keeps on asking questions about what is presupposed by them.

His reconstructive science is an interesting mechanism, but it seems to me that he does not go back quite far enough. It is necessary to reach back deeper into metaphysical principles.

My second observation is one in partial defence of Rhonheimer. Alasdair Macintyre has written fairly recently that natural law theory, properly understood, necessarily has within it a notion of legal error as well as one of legal development. I am extrapolating here, but it must also, I think, have a notion of legal corruption.

Rhonheimer might then retort to Luke Gormally’s objection that perhaps a lot of empirical evidence is being presented as contrary to natural law, or disproving it. Firstly we should have to take into account ideological distortion somewhere undermining that whole project of empirical research. Secondly, even allowing for such distortion, it might be the case that certain trends pointed out can actually be incorporated within a natural law vision as a type of corruption, or of derogation from the norm.

Of course, he has still to face the much deeper problem of how one determines what corruption is, what healthy development without presupposing fundamental metaphysical principles at the outset. In that sense I think Luke’s criticism still bites.

Prof. Luke Gormally: I took the notion of the empirical presented earlier on in a rather narrower form than that to which Russell has now made reference. I thought that what was empirically established was exactly what people were willing to agree upon.

Let me also defend here the more standard natural law critique of Rawls. I think it a perfectly sound strategy, at least intellectually, as well as fruitful politically, to say that his conception of justice is grotesquely emaciated. If one is going to determine what justice in society is – namely, what people owe to each other by way of restraint and in terms of positive action – one needs an account of the nature of the human person and of the human good. Rawls’s determination to exclude comprehensive views renders a politically adequate conception of this impossible.

Russell Wilcox: Yes, and that has been picked up by non-natural law critiques as well. I am thinking of scholars like Joseph Raz, Michael Walzer, Michael Sandel and others.

Jack Valero: Without knowing very much about Rawls, the key problem that comes to my mind is that of content. Without a prior notion of what the human being is I do not see from where content originates.

Prof. Seamus Grimes: I think that you are right and that this is what Rhonheimer has set his sights on in Rawls’s work. Rhonheimer is proposing a natural law perspective on the human person as a social being and referring to particular essentials of society: marriage, the family, the dignity of the human person, and so on.

Jack Valero: With all of these predefined?

Prof. Seamus Grimes: Yes. They are, obviously, contentious issues in politics but they cannot be avoided. I think Rhonheimer is trying to help people to present these difficult arguments within a political debate.

Russell Wilcox: One problem is, though, that he risks doing harm to that cause by turning strategic considerations into arguments of principle: he might actually be understood to say that people are obliged to argue in this way.

Another difficulty is one that it seems to me Ratzinger has pointed up on occasion by taking what we might style a more Macintyrean line than John Paul II, namely that we really are in serious trouble at the present time. If I may lay claim to the epithet of Macintyrean myself, I should have to say that Rhonheimer’s approach is in danger of masking the true severity of the crisis in which we now find ourselves.

Prof. Seamus Grimes: My own reading of his approach is that he wants very much to encourage people to assess what is going on in the political arena in the context of natural law, and to make them aware that they have a personal obligation to pursue these issues seriously. How they should actually go about doing that is another matter…

Dr. Andrew Hegarty: Is it a question of whether or not he has conceded too much?

Prof. Seamus Grimes: He does suggest a possible response by a defender of natural law to the development of abortion. He would argue that many of us are living in societies where abortion is legal, and would suggest that the political system as such has some moral standing. In a certain sense he seems to be saying is that you cannot really go forward with real violence, as when in the United States some abortion clinics have been assaulted.

Russell Wilcox: Even if the criminal law may itself be a type of violence because it is mandated…?

Prof. Seamus Grimes: Well, yes. He does point out that it is not actually being imposed. At the same time he is aware of the question of where one would have to draw the line. He is referring to Nazi Germany, where there was a form of thinking that evolved. Who was responsible for that? Where were the intellectuals? And so on.

Russell Wilcox: It is very interesting when he refers to authors like Hobbes and Locke. There is a classic work on natural law by Heinrich Rommen, a jurist in the Nazi era, who traces it all back historically. He argues that you really have to go back to first principles.

You said at the very beginning of your paper, I think, that you were going to speak about natural law – a very brave thing to do. Given the context of your living and working in contemporary Ireland, I can entirely understand that. In England, however, the natural law was for a very long time seemingly irrelevant, but now, with serious work done by scholars like Prof. John Finnis, we can talk about it much more openly.

Might it be the case perhaps that the strategy apparently advocated by Rhonheimer could be more effective in Ireland where the crisis is pretty bad but not quite as bad as we experience it over here? Might it be that although the state of affairs is worse here, we are nonetheless strategically better able to turn back to first principles?

Michael Moore: I should like to concentrate on Rawls with my question. I have to admit that I started reading Rawls but gave up when I felt I was learning more about the author than about the subject! When reading Aquinas I learn more about the subject than about the man. It is the subject that interests me.

What in your judgement are Rawls’s ‘conceptual demons’? To me a conceptual demon is something one takes hold of when prescinding from first principles, zooming in on it and making it one’s overarching principle.

Russell Wilcox: Democracy?

Michael Moore: I think democracy is right, but surely liberalism, too. What other foundational points are there that he wishes everyone else would accept?

Prof. Seamus Grimes: Fundamentally, I believe, Rawls’s problem is that he wants to avoid controversy. Rhonheimer would have us believe that this view of society exaggerates pluralism. In some ways, however, we are increasingly in a situation where we are finding it more and more difficult to allow for a wide range of views. Rawls wants by all means to avoid controversy and at the same time, it seems to me, to allow a maximum of anarchy.

There is here a strange contradiction. On the one hand he wants to develop a system wherein people have maximum freedom to follow their particular whims, and on the other he seeks to restrict any deeper questioning that might raise issues of what really is good for society. I do not think he is concerned about whether society should be good or not, apart from his welfare principle. It is fundamentally an economic, an egalitarian concern.

Russell Wilcox: That, of course, is what is really gets Habermas’s goat. He sees it as squaring all-too-nicely in a functional manner with the market society and offering no proper critique at all of the market. This ties up with aspects of post-modernist thought. Many Marxists criticise post-modernist thinking as inherently conservative vis-à-vis the market, even though they claim to deconstruct things. Philip Jameson even writes of post-modernism as the latest stage of capitalism.

There is a certain hyperactivity implied in the monadic conception of the human being, even for post-modernists. The whole notion of radical pluralism presupposed by Rawlsian thinking has been heavily criticised by Ernest Gellner. Although, like Habermas, he is in favour of the modern project, he still thinks it absurd to presuppose radical pluralism. If such a state of affairs really obtained, society would have imploded. There is, in fact, is a considerable degree of consensus about the more important things. People, it is held, take differing views only on rather unimportant matters, and differences are only permitted therein to the extent that they do not affect the integrity of the underlying system.

Michael Moore: I should like to globalise that if I may. I am seeking a firmer grasp of how Rawls sees the world. Allow that there are some 320-330 legal jurisdictions in our world. One of my interests is the rating of each and every jurisdiction in respect of its conformity to natural law.

If one was to try rating them with a Rawlsian understanding of the law, and putting in place a simple traffic light system – green for a Rawlsian society, yellow for something approaching it, and red for complete rejection of all that Rawls held dear – could you give, or suggest, just one country per colour so that I can start to get my head around how Rawls saw the ideal society writ large?

Prof. Seamus Grimes: Well, China is red, although there might be some confusion due to Rawls’s approach to issues of egalitarianism. He wants to avoid completely the implications of egalitarianism for people’s lives. I would myself be very concerned about any egalitarian programme that brings with it serious human rights abuses. I do not think Rawls would have a problem with abortion, or whatever in this context. He is happy also to equate marriage with same-sex unions, and so on.

Russell Wilcox: But he would surely have a problem with the Chinese system as it is authoritarian. It seems to me that Sweden might get his green light.

Michael Moore: If we allow that China might be yellow, where would we find red?

Prof. Seamus Grimes: Perhaps some African country where the political system is founded on ownership by tribe and does not really allow for genuine individual participation.

David Burke: I am confused about what Rhonheimer wants in terms of imposing the natural law on society, as opposed to making sure the positive law does not actually conflict with the natural law. I wonder if there might not be here a danger of becoming quite totalitarian. Rhonheimer says that fornication is against the natural law, but should it be prohibited by the law under penalty? No, of course not. Can we really impose morality by means of the State? There is always a danger that the State will come to disagree wholly with natural law positions, and with a natural law conception of the human being. Is this, then, a self-defeating strategy in the medium- to long-term?

Prof. Seamus Grimes: Now that you mention it, bigamy is an issue of concern for the State, so there is manifestly some potential conflict there.

I actually think Rhonheimer is trying to achieve the best for society. I do not think there is any doubt about that in terms of incorporating natural law thinking. His critique is, I would say, a natural law critique. You may be familiar with Christopher Wolfe’s critique, or with the work of Peter Berkowitz. American natural law writers do tend see things in black and white terms. They are rarely very keen on what we might call perhaps a nuanced approach.

You raised the danger of totalitarianism but I believe Rhonheimer is very much wants to develop a way forward through people reaching agreement and by means of trying to persuade public opinion.

I hold it possible to make very convincing arguments in a secular political framework. There are issues about not imposing one’s views on others. Many people are very concerned about this, and that can be taken too far. I think nonetheless that it is up to individuals and groups in society to put forward their own agenda as persuasively as they possibly can.

Russell Wilcox: Note, however, a presupposition of totalitarianism. I am not saying this could not be, but there is a presupposition at work here. The whole critique of the dictatorship of relativism, as one person recently termed it – the problem with the whole principle of neutrality – is that it disguises itself behind a studied and self-contradictory idea that the choice is between positive conceptions of the good, whether you choose to admit it or not.

Even so – as John Finnis has been at pains to point out, and his view here would be shared by ‘new’ and ‘old’ natural lawyers alike – built into the natural law is the principle expounded by Aquinas that one cannot legislate for the whole of morality. It is a prudential judgement as to just how much should be legislated. It is also a practical question of how much you may be able effectively to do it

Let me add that American theorists take up more ‘robust’ positions partly because they can get away with it in over there. They find themselves in a very different context from ours, and they are in effect playing a different game.

Prof. Seamus Grimes: Russell spoke earlier of the Irish political context. Politicians in Ireland love to deflect all such questions to Europe and seek to have them sorted at that level. There do not seem to be many votes in these areas.

Prof. Luke Gormally: The key to Rawls’s conception of equality, as I understand it, is precisely a notion of equality of respect for persons, requiring that widely differing conceptions of the good life be respected. That means that we ought not to have a legislative framework which, by excluding certain conceptions of the good life, would discriminate against persons.

There are assumptions being made here about what it is to respect persons that seem to me to be very clearly questionable.

Russell Wilcox: Also, although he has claimed he is not doing it, Rawls has given a positive conception of the good.

Prof. Luke Gormally: Not a defensible one. He has advocated positions demonstrably inconsistent with respect for persons. His was one of six signatures on the famous philosophers’ brief in favour of euthanasia legislation, and he has strongly advocated the rights of women to have abortions.

Michael Elmer: I am not sure if this will work, but I should be interested to bring into the discussion blocks by tyrants to legitimate development – formation of consensus, if you like –, and to the evolution of democracy, and Rawls’s view on the illicitness of disposing of them. There is a great body of Christian writing on tyrannicide, and a current example might be someone like Mugabe in Zimbabwe. We have seen an election decision set aside and those who would urge its being carried through heavily repressed. At what point, if at all, would Rawls regard as legitimate the physical removal of the obstacle, the elimination of somebody like Mugabe?

Prof. Seamus Grimes: The impression I get is that there is a very strong degree of tolerance for the system. It seems to me the nature of the democratic model as it appears in a number of African countries has been highly problematic from the outset. It is not really functioning in the way a liberal democracy should from Rawls’s point of view.

Russell Wilcox: The whole question of whether or not African democracies are worse off than liberal democracies from a natural law perspective is a fascinating one. I for one would not say that they are worse off in concrete terms. Consider the abortion issue: if you look at the number of people killed, it is a complicated issue. The pathology of modern liberal capitalists…

Prof. Seamus Grimes: … is more subtle?

Russell Wilcox: Yes indeed, and Macintyre, for example, might say, also much more dangerous and insidious.

Dr. Andrew Hegarty: As we near the close I should like to move the discussion onto another level, and away perhaps from the question of what exactly Rawls or Rhonheimer might be thinking. If we were to accept the notion that political society has a role in making people good, would that be at all compatible with a liberal outlook?

Prof. Seamus Grimes: It seems to me that, as things have developed in more recent times, the main focus is actually on avoiding evil. That allows for some degree of latitude in seeking to avoid the evil. The question is, then, what can be tolerated in the system while respecting the system.

Dr. Andrew Hegarty: Does that leave any significant role at all for political society?

Prof. Seamus Grimes: Yes, I think Rawls himself sees a role for individuals and groups and parties to try to talk about how to incorporate the true, the good, and values as much as they possibly can.

Dr. Andrew Hegarty: Even against the current?

Prof. Seamus Grimes: Yes, very much so.

Russell Wilcox: But it has to be within certain parameters. That is the point Yves Simon once made. He said that it is very good, in a sense, that there should exist a state of affairs in which as many people as possible are contributing to the making of collective decisions. Within a very broad scope there is a great deal of freedom. The natural law, I would argue very strongly, facilitates maximal diversity, leaving huge scope within its parameters for choosing between different types of goods.

If you want a system whereby those decisions are made collectively, and by as many people as possible, you are seeking some sort of democratic system. Yves Simon would, I think, say that this amounts not merely to an instrumental good, but rather that the very act of getting involved in legitimate collective decision-making it is rather a constitutive good. You cannot then go outside the boundaries of the natural law because such action would undermine the very mechanisms you have in place.

Dr. Andrew Hegarty: What if you suppose an authoritarian political authority respectful of all the key natural law positions – for example, those Rhonheimer is keen on – and, at the same time, undermining it pressure for an apparently more democratic or inclusive form of political organisation which you know is going to be much less keen on upholding natural law positions.  How do you work that one out?

Russell Wilcox: Well, then the question surely becomes one as to whether or not political involvement in collective decision-making is a constitutive or an instrumental good.

I remember listening to a lecture by the philosopher, Prof. Bernard Williams, a few years before he died. He argued very forcefully that it was an instrumental and not a constitutive good. For him the argument for democracy had to be entirely instrumental.

If, however, it is a constitutive good then the argument becomes more complicated. If you exclude a real good for the sake of maintaining the natural law you have to determine whether the good you are excluding weighs less in the balance. One ends up in a sort of utilitarian calculus.

Dr. Andrew Hegarty: This is relevant surely to Rhonheimer’s position?

Russell Wilcox: It might be, and it would be interesting to see what view he would take on it.

Prof. Seamus Grimes: I believe he would be very much in favour of widespread participation. The point is to try to encourage people to get involved in the political process. The fact is that there are many people with the potential to contribute a lot who in fact do very little: most of us in a certain sense, because we do not fulfil our democratic responsibilities as we should.

Russell Wilcox: An instrumentalist argument against that would be to say that writing on a ballot paper does not amount to much. As long as there exists in any particular place a framework whereby we can exercise maximal freedom to engage in positive goods, that is surely much more important than how that framework is constituted.

Dr. Andrew Hegarty: You will recall the recent extraordinary case of the Kingdom of Bhutan in the Himalayas. There an autocratic monarch who is exceptionally highly regarded by his subjects had to force them against their wishes to accept a more or less democratic constitution. Most observers seem to be agreed that had there been instead a referendum on the King retaining absolute powers it would have garnered the support of perhaps ninety per cent of his people.

Russell Wilcox: That was a strategic decision on his part because Bhutan has Nepal for a neighbour, and the King was aware of what has happened there in recent years.

Dr. Andrew Hegarty: It is interesting, nonetheless, because it seems democracy had to be imposed autocratically against the wishes of the people.

Prof. Luke Gormally: Well, I think one of the first things that emerged this evening from the exposition we have heard on Rhonheimer’s thinking is that one actually has to start from the historical context in which one finds oneself. At least in our western democracies we are not dealing with a ruler who might be in so wonderful a position of power as to be able to impose a natural law regime. My own inclination if faced with the offer by a benign monarch of democratic institutions that might substantially undermine the common good would be to stick with the benign monarch!