Contractualism's Religion Problem: Rawls' Pathos and the Persistence of Tradition

Dr. James King, University of Aberdeen, UK

A basic yet under-examined factor of the relationship between the rule of law and religious beliefs in modern states is the distinction between the fundamental outlooks of contractualist politics and those drawing on traditions, defined here as existing ethical and political thinking, including religious traditions and common law.  The project draws on literary criticism, theology, philosophical ethics and political theory to suggest the pathetic appeal of contractualist liberalism.  I use John Rawls’ work and the reception thereof as an initial case study, before examining two areas in which persistent disagreement may be clarified by attending to this basic difference in pathos.

                I begin by constructing a pathetic reading of Rawls’ Theory of Justice and his later essay ‘Justice as Fairness: Political not Metaphysical’.  It is my point that even the Frege-like geometry of Rawls’ analytic political philosophy is a highly rhetorical move.  I follow Matthew Scherer in analysing Rawls according to Aristotle’s theory of rhetoric, paying special attention to Rawls’ perhaps-incidental use of pathos.  As I have argued elsewhere, Rawls can be read as embodying the literary figure of the outsider, that is, he responds to the perceived meaninglessness of the modern situation by asserting a new morality.  Alternately, we might shift emphasis and paint this response as tyrannical: Rawls is enforcing a new morality all his own.  In either case, we see that Rawls is responding to a perceived situation of ethical nihilism.

                This point suggests the basic incommensurability of contractualist and ‘traditionalist’ viewpoints on the sources and authority of political agreements.  In nuce, the traditionalist, whether religious or politically conservative, sees the Rawlsian liberal as refusing the existing social resources for ethics provided by religion or national tradition.  The traditionalist refuses the imagination of a pure founding moment of any political community, seeing even the event of the constitutional convention to be embedded within a wider political-cultural matrix.  This matrix, either a religious tradition or a political tradition, e.g., of common law, is seen to hold continuing political significance that is underappreciated by needlessly (and inadvertently) revolutionary liberalisms.

                Understanding this difference in outlook helps to explain persistent problems in developing consensus in both normative political theory and in real politics.  Most helpfully, this rhetorical reading suggests a more basic distance between contractualist political thinkers and traditionalists.  The fundamental premise of Rawlsian political theory is refused by those who do not perceive a situation of political-ethical nihilism; many simply do not see the need for a new grounding of politics, even an imagined grounding (cf., Stanley Hauerwas on Rawls’ ‘original position’).  Indeed, for these, the liberal project may seem an insult as it suggests the need to establish a political consensus and bonds of communal trust thought already to exist.  Prospectively, it remains for political liberalism to address the differing pathos held by traditionalists.