Jurisprudence Paper

1 Dr. John Rawls’ goes to great length in his book “A Theory of Justice” to understand exactly what the term “liberty” means in the legal sense. His theory of liberty is strictly defined with many objective principles and guidelines. But how does his theory relate to the institution of slavery; something that is commonly thought of as the opposite of liberty? Does his theory include the justification of slavery or does it deem it unjust? The institution of slavery has been apart of society as long as mankind has. Rawls explains how liberties are established through four stages of political development. He says that equal rights are a necessity in a just society. It is partly due to this notion that Rawls says that slavery can not be a consideration for a just civilization. He explains how liberty has a key role in the construction of a just constitution. But he also contradicts his own argument and gives reasons for why slavery could be a alternative under his theory. He leaves some ideas up to the interpretation in such a way that they make his original point counterproductive. Rawls’ theory of justice rules out the idea of slavery, but contradicts itself. Slavery is an institution that has been on earth since the beginning of recorded history. Hammarabi’s Code, the first code of law ever written, had references to slaves and the ownership of people. The ancient Egyptians used Jewish slaves to build the Great Pyramids. Slaves were a very large part of Greco-Roman life. They where used to do household chores or work in agriculture. They where used for entertainment when they where forced to fight to the death as gladiators in front of thousands of Romans. The slave trade was part of the reason why the United States transformed from a struggling new republic into a world power. Nazis used enslaved Jews for ammunition production, construction, and product production during their dominance over Germany in the mid-

2 20th century. There has been reports of the buying and selling of forced laborers in the Sudan as recently as 1997! How does Rawls’ theory explain a part of society that is so intertwined with human history? Rawls’ concept of liberty stresses its importance in a just society. He claims that the society goes through a four stage process that eventually lead them toward the establishment of legislation and, thus, the liberties of the people. First the parties agree apon their shared political principles. Then they move to a constitutional convention where they adopt a constitution. Then the legislation is created. This is perhaps the most important stage of them all beaceuse it begats just or unjust laws. Finally, the legislation is enforced. He states that in a just society liberties must be constructed in order to allow a just society to sustain itself. People must have the ability to have conscious freedom and be allowed to participate in politics or else that sustenance is impossible. He states “freedom of thought and liberty of conscious, freedom of the person and the civil liberties, ought not to be sacrificed to political liberty, to the freedom to participate equally in political affairs.”1 Without the freedom to think critically, it is impossible for a just society to develop. It is also important to note that Rawls stresses that all these liberties must be present. Speaking in terms of constitutional democracies, the liberties that Rawls speaks of are largely a set of institutions (rules) that govern these individual freedoms. It is also the duty of these institutions not to obstruct these liberties. For example, not only does the government have to protect someone’s civil rights by prosecuting offenders, it is also important for them not to infringe upon said rights. Rawls also states that it is not uncommon and completely feasible for just delegates to create 1

John Rawls, A Theory of Justice: Revised Edition (Cambridge: Harvard

University Press: 1971; reprint, Cambridge: Harvard University Press: 1999) 177.

3 unjust legislation. The legislation could be clearly infringing apon rights or sudtly doing so.2 It is very apparent the Rawls thinks that slavery does not have any place in a just society. The biggest reason why is because of the absence of the freedom to think critically in slavery. Slaves do not have freedom of consciousness. While no person could take control of the consciousness of a slave, their owners attempted to control how they communicated that consciousness and they were prevented from having any involvement in political matters. Also in the case of slavery, the U.S. government (for example) didn’t protect their rights. They also were not afraid to indulge in the practice either. The sale and ownership of people was a legal right held up by the government and the government infringed on people’s rights by having federally owned slaves. Two of the major tenets of Rawls’ concept of liberty are not achieved in this example. Under these conditions, it is impossible for a society to be just according to Rawls’ theory. Rawls stated that a just constitution can not be achieved without freedom of thought and freedom of political involvement because not all the agents are represented. Slavery expresses the exact opposite of those sentiments, implying that only those who are deemed worthy have the freedom to think what the want and get involved in political matters. Despite all of Rawls’ laboring over the conception of liberty and its importance, he makes some glaring contradictions to his own theory. He states that there are many instances in which the restriction of such liberties is justified. He writes: “There is, however, further distinction that must be made between two kinds of circumstances that justify or excuse the restriction of liberty. First a restriction can derive from the natural limitations 2

Ibid., 171-227.

4 and accidents of human life, or from historical and social contingencies.”3

The major problem with this statement is that so much is left up to interpretation. History teaches us that perceived “natural limitations” can be false. What limitations qualify as warranting restriction of such liberties? In Nazi Germany, Jews were thought of to have genetic and biological limitations. Jews were supposedly predisposed to evil and were thought of as vermin of the worst kind and treated as such by the government. If perception is reality, and limitations are indeed perceived then this policy is justified according to Rawls. The terms “historical and social contingencies” can also be subjective. If history shows us that the Israelis have attacked Palestine numerous times, does that then give the Palestinians the right to imprison or enslave Israelis? Does the white supremacist practices of the Confederate government during the Civil War fit under the heading of “social contingencies” because it reflected the common values of the old American south? Within the context of that statement, it could very well be called a just society. Rawls’ theory needs more clarification on this subject. Rawls continues to make assertions regarding the restriction of liberties as a way to bring a higher degree of justice to the unjust. He says that slavery is tolerable only when its alternative is intolerable. He states “Now it is this restriction that makes it practically certain that slavery and serfdom, in their familiar form anyway, are tolerable only when they relieve even worse injustices.”4 He then sites an example of two warring John Rawls, A Theory of Justice: Revised Edition (Cambridge: Harvard

3

University Press: 1971; reprint, Cambridge: Harvard University Press: 1999) 215. 4

John Rawls, A Theory of Justice: Revised Edition (Cambridge: Harvard

University Press: 1971; reprint, Cambridge: Harvard University Press: 1999) 218.

5 city states agreeing to take prisoners of war when they had formerly put prisoners to death. According to Rawls, the condition of the enslaved is better because it is within the best interest of both countries to trade prisoners, which world then end their bondage. Rawls’ problem on this subject is that he immediately assumes that people prefer enslavement over death. This is a very geocentric assumption. Japanese soldiers during World War II saw being captured on the battlefield as major disgrace to them and their family name. Soldiers of ancient Greece also saw surrender and enslavement as a disgrace and were taught at an early age that death on the battlefield is the greatest glory they could achieve in life. So to say that people prefer enslavement over death is a strictly Western way of thinking and it doesn’t take into account different kinds of people and cultures with different value systems. 5 Another inconsistency is Rawls use of the words “worse injustices” without a clear definition of what constitutes an injustice as being “worse” than another one. This statement leads people to believe that the enslavement of Jews during the Holocaust is more tolerable because they were not being killed like the rest of their kin. Who decides which injustice is more tolerable? Is not better to say that they are both unacceptable? This statement can be the subject of much interpretation as well. In the old American south, a classic justification of slavery was the argument that Africans were such retched beings that they could not possibly become civilized on their own and that they are better off in America, albeit in bondage. Slavery was, of course, beneath the status of white man, but seen as an opportunity for an African. This is the same type of reasoning that

5

John Rawls, A Theory of Justice: Revised Edition (Cambridge: Harvard

University Press: 1971; reprint, Cambridge: Harvard University Press: 1999) 218.

6 Rawls uses in this excerpt. But you cannot justify one injustice because it is better than its alternative. Isn’t it safer to say that both options are unacceptable? Rawls then goes on to say that none of these considerations justify hereditary slavery.6 It is hard to imagine why he would make this statement because the difference between hereditary slavery and nonhereditary slavery seems so unimportant to the issue. They both entail the denying people entry into political consideration. They both place restrictions on a person’s right to communicate their objections. The difference between the two options is minuscule when it comes to their similar deprivation of liberties. The difference is the way in which people are enslaved, not the institution of slavery itself, which is at the real heart of the issue. Rawls’ theory prohibits the use of slavery but tends to contradict itself numerous times. “A Theory of Justice” goes to great lengths to explain the idea of liberty in objective terms. According to Rawls, liberty is an ideal that can only be achieved through free thought and involvement in the political arena. Liberty is strictly and thoroughly defined. Rawls theorizes that constitutional democracies must all go through four stages before liberties develop. The first being the recognition of shared values, the second being the adoption of a constitution, the third being the construction of legislation, and the fourth being the enforcement of said legislation. Rawls’ theory excludes slavery as an option for a just society because it demeans people of those aforementioned rights. His theory excludes slavery but then contradicts itself numerous times. Slavery has played a very important part in human history. It has been apart of countless cultures for hundreds of years. Despite that, Rawls says that equal liberties under the law are a necessity for justice in a modern society. Individual equality is the biggest dividing factor between just 6

Ibid

7 and unjust societies, thus, slavery is not an option. He does convey many major contradictions about liberty. He states that some restrictions are acceptable because the alternatives are worse. Far too many ideas are left up to interpretation by Rawls. He fails to elaborate on some of the points that can hurt his argument. But, in Rawls’ defense, he did not write “A Theory of Justice” strictly to assault the institution of slavery. Hopefully that is a sign that it has become obsolete.