Conditions of Rights in Law

 In section 23, Rawls argues that “a conception of right is a set of principles, general in form and universal in application, that is to be publicly recognized as a final court of appeal for ordering the conflicting claims of moral persons” (117). He emphasizes on “generality, universality, publicity, and finality” as conditions of right (115-117). This reminds me of the long and painful final paper I wrote for Professor Hurley last semester in his Philosophy of Law class. I want to discuss how Rawls’ arguments are manifested when our rights are codified in the legal system.

In that paper, I looked at how the Equal Protection Clause specified “equal protection” for “all persons born or naturalized in the United States” (U.S. Const. amend. XIV). I argued that there is an extent of linguistic ambiguity embedded in the statute. And thus the court questioned to what extent the enactors of the Amendment intended to protect racial equality: If people were socially separated according to their race but treated with similar manners and enjoyed similar societal facilities, did that constitute discrimination against race? Given the original intent of the enactment was to protect the black population, should the Clause be strictly applied to protect them only? Or could it be applied to other racial minorities as well? A literalist approach to applying the Equal Protection Clause in court is problematic as it can yield rulings such as the one in Plessy v. Ferguson, which subjected African Americans to decades-long racial oppression. This is similar to Rawls’ rejection of conditions of rights that are justified by definition or the analysis of concepts. Rawls proposes that it is the reasonableness of the theory that should be the condition of our rights.

However, I would like to rebut against Rawls’ argument that we bear a heavy burden of commitment when establishing agreements. In the Court of Plessy v. Fergusson, Justice Brown argued that “a statute which implies merely a legal distinction between the white and colored races...has no tendency to destroy the legal equality of the two races or reestablish a state of involuntary servitude” (163 U.S. 537 (1896). Justice Brown represented a not unpopular opinion at the time: just because there were no specific phrases mentioning the black population’s political inferiority or constituting any explicit bonds of servitude in the statutory texts, state legislation that maintained impartial treatment but in a segregated manner would still be constitutional. Rawls’ argument that implied the notion that something is once accepted might provide reason for future acceptance due to publicity as a condition of rights leaves room for highly biased arguments, like this one that Justice Brown made. Many people agreed to the “separate but equal” argument at the time, which is obviously unjust and invalid in reason. However, I would argue that not a single statute can predict every kind of possible violation of its clause and effectively prevent them by elucidating them in plain texts. But it is still important to make these statutes that would at least provide some constraints to behaviors that would violate justice. So, why can’t we, as a liberal state, abandon these invalid agreements? Or at least improve these agreements in a way that would adhere to reason?