"The scary prospect that Žižek raises in Welcome to the Desert of the Real is that the status of Homo sacer (## note) does not so much pertain to the excluded as it does to the possibility of being excluded, i.e. the fact that, due to political contingencies, all of us—citizens—can at any time be stripped of our citizenship rights, i.e. that we can all be reduced to Homo sacer (95). Since Rawls defines men as those who can be citizens, there is always someone who cannot be a citizen."
Yes, scary: though not as scary as say the Bolsheviks circa 1917 denying the right to vote to various groups, whether bourgeois liberals, or peasant anarchists. There were always thousands who could not be citizens under Hegelian statism, whether of russian, or prussian variety. Zizek himself has often praised Bolshevik tactics, and has also suggested some may be excluded from the worker's utopia to come--whether the usual booj-wah villain, or "populists", whether romantic leftists, or presumably rightist wingnuts.
Zizek wants to caricature Rawls’ system by any means necessary and make it appear like hypocritical liberal capitalism, or something (when it’s really a type of socialism, rooted in social contract
), and at the same time suggest his own quasi-Bolshevik theory as a real democratic alternative. Zizek's Rawls-bashing does not therefore concern the problems with the political theory per se, but, via the usual pomo-jester tactics, allows him to ridicule the yankee-yokels and Ivy League, if not Enlightenment tradition itself (repeat social contract, mention Locke, or Adam Smith, the Constitution, science, etc.). Rector Zizek in effect conducts a show trial of Rawls and Rawlsian theory, and by extension Anglo-American thought as a whole.
Rawl’s updating of his theory (from man to citizen) improved the ToJ, Contingencies avers, especially the original position
: the ToJ left open the problem of rationality (really agency); with Pol-Lib, citizenship is granted to rational people, and rational people decide on the societal structure (in brief). Even James Madison--er, the good Madison--might agree to that. The two over-riding justice principles (see note 1) of Rawls' ToJ are left intact. It should be recalled that Rawls is not a utilitarian as some suggest, nor a libertarian ala Nozick or Locke: democratic socialism seems the most apt description, yet the rationality requirements would preclude, seemingly, complete collectivist equality , whether in terms of wealth or rights. A nurse is not a doctor. A custodian is not an engineer. Its not about empowering bums, but empowering skilled and qualified (and taking down the pimps). Rawls did not adequately address that meritocracy issue in the ToJ.
The question remains what rational people would actually choose if forced to make disinterested decisions regarding a just society: the real objections are not from Nozick's MBA-libertarianism, or from a Zizek-Marxism perspective (the orthodox marxist simply rejects any reforms anyway which allow capitalism, if not the bourgeois to exist; so even if Rawls' theory were sound, it's not as sound as insurrection). The Rawlsian "maximin" hinges on the hypothetical Original Position, and the veil of ignorance; the same criticism levelled against Hobbes' political ideas for years applies. For one, without any real binding force, the rational choice made under the Veil seems rather provisional if not capricious: one might choose monarchy, and non-cooperation of various sorts (even say, joining the mafia), just as in the Prisoner's Dilemma a perp might choose to rat out his buddy instead of cooperating, notwithstanding that the potential loss is substantially greater. (It could be set up to be binding, we suggest, using modern technology, and computing/the Net: a Rawls bot--).
Tho' the hypothetical may be a stretch for many, the Rawlsian social contract, like Hobbes', does hint that social institutions and economic transactions should be grounded in something like a social contract which presumes fairness--a level playing field and equality as starting point (thus the Rawlsian also in principle opposed to monopoly and dynasties of various sorts--as were the more liberal Founding fathers). The Constitution, while very important does not suffice; a more-than-minimal state then is required in order to implement distributive justice. Lacking some distributive justice maxims, we are left to libertarianism, if not anarcho-capitalism (not to say wall streets, bailouts, the Forbes 400 gang, billionaire brokers or porn producers living a few miles from starving teachers and other skilled workers, etc etc).
Although Zizek and most marxists might object to Rawls' Difference Principle
(if they bother to read it at all) the DP offers a political mechanism whereby the rich provide substantial economic assistance to the impoverished and miserable--the working poor--not based on mere charity, or handouts, but on optimization (and on the Original Position OP--so accept the OP, then DP follows. A bit more schematic than British empiricists, emotional liberalism, or romantic marxism). It's Hobbes via Rousseau (and a bit of Kant--but only as an end, ie kingdom of ends) rather than Lockean. Locke's attacks on the Divine Right of Kings are and should remain commendable, yet what's needed is an attack on the Divine Right of Corporation (most leftist/progressives hint at that, but Rawls did the dirty work
Rawls’s criteria of citizenship based on public reason
(see note 2) offers a possible solution to the problem of the romantic masses, and ill-equipped, uneducated rebels: were some 3rd world “homo sacer” (really a typical Zizek straw man; the term is from Agamben, in latin means sacred man, but used to mean something like "loozer") as provably as intelligent or competent as Biff and Bunny in the ‘burbs, then he has the same rights to citizenship (and to political participation). Given Zizek’s own attacks on populism, he also seems to object to romantic marxism: so at times he suggests some shall be excluded from societal and/or political participation (tho it’s probably a lot more than he lets on)--thus, Zizek has his own "homo sacers"(and a mineshaft to toss 'em in). Rawls arguably did not go far enough in terms of specifying a citizenship criteria, but it’s quite more workable than the usual marxist hype (including Zizek’s–really on examination another romantic himself).
The ToJ does lack that spirit of romantic rebellion which many cafe-leftists mistake for politics, however. Rawls put his shoulder to the wheel, but he wasn’t a Che Guevara, Sartre, or Chomsky, or Zizek, etc. He was more like a Galbraith or Dewey than existentialist guru. That lack of continentalist swagger bothers Zizek more than anything; Rawls as symbol of academic reformist, etc, if not American mediocrity. Irregardless the TOJ’s a workable system, and given the history of botched Hegelianism–-stalin, nazis, mao, etc.– the TOJ should be given serious consideration as a type of progressive template.
1). Rawls definition of a just society:
(a) Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and
(b) Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society (the difference principle).)
2). public reason, per Jefferson: [I]t is proper that you should understand what I deem the essential principles of our government, and consequently those which ought to shape its administration . . . . [They include] the diffusion of information and the arraignment of all abuses at the bar of public reasons..."
##: re "Homo sacer"-- "The meaning of the term sacer in Ancient Roman religion is not fully congruent with the meaning it took after Christianization, and which was adopted into English as sacred. In early Roman religion sacer means anything "set apart" from common society, which equally covers the meanings of "hallowed" and "cursed". The homo sacer was thus simply a man expunged from society and deprived of all civil rights and all functions in civil religion."" (not "homo," like well, your fatboy preacher worries about, Tammany McDreckson)