Larry Solum defends Rawls in the first of a series of posts. He starts with an intriguing proposal:

Let us put the question posed by Cohen to Rawls i[n] a special session of the Original Position. That is, let's suppose that the representatives have already selected the two principles, and now they must choose whether the principles shall apply to the basic structure--call this the basic structure version of the two principles (for short, the basic structure version)--or whether they should select a variation in which the two principles apply to individual life plans--call this the comprehensive version of the two principles (for short, the comprehensive version. Which version would be selected by the representative of citizens with the two moral powers behind the veil of ignorance?

Larry promises to answer this question in later posts. I think this puts Larry in the position of someone giving a series of lectures over four or five days. On Day One, the lecturer has a clear view of what he wants to say. But after the question and answer session, he has to make some adjustments here and there. On Day Two, the adjustments are presented in the course of delivering the new material. But in the mean time, the audience has had some time to think about things--and the second round of Q&A is much more pointed. The lecture on Day Three is already evolving, and, by Day Four, the original lecture is scrapped in favor a response to the critics. Then again, maybe Larry will confound us all. As you'll see below, I wish him the best of luck!

In that spirit, let me mention a single concern about the way Larry has framed the central issues. The original position does not have a unique subject. It's a heuristic that can be used to model all kinds of principles and institutions. Larry wants us to use it for the purpose of determining whether people who are rational (and reasonable by virtue of being placed within the original position)--or, put otherwise, whether citizens who have the two moral powers (read: the capacity to pursue a conception of the good and the capacity for an effective sense of justice)--would choose to apply Rawls's two principles of justice to their own life plans. Note, here, that Cohen's critique doesn't say anything about applying Rawls's first (equal basic liberties) principle to individual life plans. It's not obvious how that would work, but the prerogatives argument might be seen as an attempt to incorporate liberty concerns into Cohen's argument for an egalitarian social ethos. But this isn't my main concern. The concern that I have about Solum's framing is this: the parties in the special session of the Original Position have already chosen the two principles of justice to regulate the basic structure of society. But Cohen would no doubt reply that this begs the question about the proper subject of justice--or, as he says, about "where the action is." How do the parties in the Original Position know which practices make up the basic structure? And even if they are able to draw a line identifying which practices are in or out, what is the justification for that line? I think this is a difficult question. The best answer, to date, is still Andrew Williams' article "Incentives, Inequality and Publicity," Philosophy & Public Affairs (1998). Williams explicates the idea of the basic structure in terms of institutions governed by public norms. I think Larry is going to have to say something similar about the nature of the basic structure. Otherwise, he's going to have a hard time persuading those who agree with Cohen that he's framed the argument in a way that doesn't already assume all the answers.

Larry is thinking carefully about this issue, and he's taken some time to pull apart a possible defense of Cohen that I suggested below. To be clear, I haven't endorsed that defense--mainly because I'm not convinced that the position it's supposed to defend is correct. What I do think is that Cohen's challenge is very serious, and that Rawlsians have a lot of work to do in responding to it. I re-stated the argument from prerogatives because I think it's the sort of argument Cohen might use to answer someone who claims that his view is too demanding. Of course, there might be other, more compelling arguments against Cohen's critique. I don't think I've said anything to rule out that possibility.

I haven't responded here directly to Larry's argument against "my" prerogatives challenge. That's in part because I'm generally sympathetic to Larry's claim that considerations presented most forcefully in Political Liberalism counsel against applying conceptions of justice to comprehensive conceptions of the good. But I know that this will only make the debate even more expansive. Up to this point, Cohen's critique of Rawls is aimed at A Theory of Justice. He hasn't widened the argument yet to encompass claims derived from Political Liberalism. Maybe that's where Rawlsians will want to make their stand. Perhaps Cohen's conception of justice doesn't meet the appropriate test of legitimacy for a society marked by the fact of reasonable disagreement. Indeed, one might accept a liberal conception of legitimacy and still believe that all of the conceptions of justice that satisfy it are merely second-best. I suppose Cohen could say something along these lines. But I doubt this would satisfy him.

I realize that these remarks are all rather loose. I hope that readers will take them merely as the most tentative of suggestions--and not as my considered views about some very difficult problems in Rawls's political philosophy. I haven't figured out what I think about many of the issues under discussion here. But I do think that they are weighty issues, and certainly worthy of the time that's been devoted to them. I'm looking forward to reading Larry's future posts.

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