Democracy and deliberation: new directions for democratic reform

James S. Fish kin

Yale

University

Press New

Haven

and

London

loittenfs •

l l l l I l t l l l l t R B R S I I B f l a i i a i l l l l i a i l l M I I

Copyright © 1992 by Yale University. All rights reserved. This book may not

List of i l l u s t r a t i o n s v i i

be reproduced, in whole or in part, including illustrations, in any form (beyond

Acknowledgments

that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and

ix

except by reviewers for the public press), without written permission from the publishers.

Part

Designed by Nancy Ovedovit/. and set in Sabon type by Tseng Information

H i e l i m i t s of Systematic Justice

One

Systems. Printed in the United States of America by BookCrafters, Chelsea, Michigan. Library of Congress Catalogmg-in-l'ublication Data Fishkin, James S.

1. 1

Introduction

1.2

The

P r o b l e m of Value

1.3

The

Problem of Value C o n t i n u e d : Future

Generations

The dialogue of justice : toward a seif-reflective society / James S. Fishkin. p.

cm.

includes bibliographical references and index. ISBN

0-300-05161-1

1. Justice. JC578.F56

2. Liberalism,

_L Social justice.

1992

3 2 0 ' . 0 U 1 — dc20

5

9

L4

S t r u c t u r e : Problems of Progress

1.5

Assignment: C o n f l i c t i n g Visions of Equal

1.6

D e m o c r a c y and Progress

Opportunity

I . Title.

1

19

29 35

92-15494

A catalogue record for this book is available from the British Library. The

Part

Two

S t r a t e g i e s of Reconstruction

paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources.

2. I

C r i t e r i a for an Acceptable Theory

2.2

Beyond l n t u i t i o n i s m

2.3

Political T h o u g h t Experiments

45 50

41

2.4

Category i : The Quest for Consent

.53

2.5

Category 2: Realistic Hypotheticais

67

2.6

Category 3: I m p a r t i a l Decision Procedures

2.7

79

Hustrations

M o r e on Category 3: Preference, U t i l i t y , and the G o o d

101

Part Three The I d e a l of a Seif-Refletth/e Society

3.1

T o w a r d Reconstruction

3.2

T h e Legitimacy Problem

3.3

Legitimacy and O b l i g a t i o n

129

3.4

L i b e r t y of Poiiticai C u l t u r e

144

3.5

The Conditions of A c t i v i s t L i b e r t y

3.6

Representation Vouchers and Deliberative O p i n i o n Polls

3.7

197

Conclusion

Notes

205

Index

233

201

115 117

165

Tables

1.

The Pure Problem of Justice

21

2.

T h e T r i l e m m a of Equal O p p o r t u n i t y

33

Figures

1.

T h e Forms of Democracy

37

2.

Decision Procedures

51

3.

O p t i o n s i n Category I

54

4.

N o z i e k ' s Scenario

75

5.

O p t i o n s for H y p o t h e t i c a l - C h o i c e Theories

83

6.

M a x i m i n w i t h a Guaranteed M i n i m u m

88

7.

U t i l i t a r i a n i s m w i t h a Guaranteed M i n i m u m

89

8.

E q u a l i t y w i t h a Guaranteed M i n i m u m

90

IIIIIIIIII

The beginnings of this book were supported by the John Simon Guggenheim Foundation d u r i n g a research leave I spent at the I n s t i t u t i o n for Social and Policy Studies at Yale U n i versity i n 1 9 8 4 - 8 5 , The book was revised and expanded as part of my research d u r i n g a year spent as a fellow at the Center for A d vanced Study i n the Behavioral Sciences at Stanford in .1987-88. 1 completed the book after my return to the University of Texas at A u s t i n w i t h support f r o m the Darrcll K. Royal Regents Chair in Ethics and A m e r i c a n Society. A l l of this assistance is gratefully acknowledged. I w o u l d especially like to thank the f o l l o w i n g people for their help over the p e r i o d 1 have w o r k e d on theories of justice: Bruce A c k e n n a n , R i c h a r d Arneson, Brian Barry, D a v i d Braybrooke, Robert D a h l , Bill Gaiston, Peter Lasiett, Sandy Levinson, Ed L i n d b l o m , Claus O f f e , D o u g Rae, G i o v a n n i Sartori, T o m Sermg, M i c h a e l W a l d , and Bernard W i l l i a m s . 1 w o u l d also like to thank T i m Terrell f o r organizing a three-day s y m p o s i u m about this b o o k at the Emory University L a w School O c t o b e r 23—25,1988. I am very grateful to all of the participants in that dialogue, w h i c h has greatly improved the final result. A r rangements are being made for the proceedings of the symposium to be published separately.

•art One •

•••••••••••••••••••••••••••••••aal

The Limits of Systematic Justice

LI

Introduction

As once-repressive regimes crumble around the globe, we see them a t t e m p t i n g to embrace liberal-democratic values. A t the same t i m e , Americans express e x t r a o r d i n a r y malaise w i t h their apparently t r i u m p h a n t political ideals. This unprecedented situa1

tion gives new urgency to the central question of contemporary political t h e o r y : Can we arrive at defensible and coherent ideals that o u g h t to guide liberal-democratic aspirations? T h i s simple question has been the focus of almost three decades o f intense w o r k in contemporary political theory. Yet this 2

e x t r a o r d i n a r y level of activity, concentrated on philosophies of the ideal or just society, has yielded inconclusive results at best. I propose, first, to offer a diagnosis of the difficulties afflicting the c o n t e m p o r a r y dialogue about the just society, and, second, to offer a proposal that avoids those difficulties, a proposal based ultimately o n the c l a i m that justice requires a certain k i n d of dialogue. We w i l l begin w i t h the dialogue about justice and move to the c l a i m that justice comes f r o m

dialogue i n w h a t i w i l l call

a "self-reflective society." The v i a b i l i t y of liberal democracy as a public philosophy has been held hostage by three false dilemmas. These overly con-

2

Sntradustion

The l i m i t s o f S y s t e m a t i c Justice

as:

to such systematic theories, I n the first t w o parts of this book 1 w i l l

and sys-

examine those impediments, arguing that theories w h i c h ignore

Leo Strauss and his popular

them fail to d o justice to the true complexity and controversiality

disciple A l l a n B l o o m w o u l d have us believe that w i t h o u t the certi-

of the subject. Part I w i l l focus on substantive impediments, part 2

tude of rationally undeniable " n a t u r a l r i g h t s , " we can have n o t h -

on m e t h o d o l o g i c a l ones.

stricted views of our possible options can be summarized absolutism tematic

versus relativism,

theory

versus

religion

intuitionistn.

versus amoralism,

ing but " r e l a t i v i s m , " where the m o r a l judgments central to West-

1

Pact 3 w i l l show h o w much can be done without

systematic

ern c i v i l i z a t i o n and democracy must be on the same f o o t i n g as

theorv. It w i l l offer a constructive argument for the first principles

those o f cultures w h i c h practice cannibalism. Others w o u l d have

of a defensible liberal society—an argument that, w i t h i n a more

us believe that unless religion is b r o u g h t back explicitly into our

l i m i t e d d o m a i n , avoids all of the difficulties discussed i n parts 1

public spaces, we w i l l have "a naked public square" in w h i c h out-

and 2.

1

society can profess to believe i n n o t h i n g at all.* A n d w i t h i n the

W h a t do 1 mean by a systematic theory? First, one that gives

camp of liberalism itself, those w h o w o u l d reconstruct a public

us a coherent picture of an ideal in clear focus, an ideal defined

1

philosophy aspire to systematic solutions, believing that a n y t h i n g less complete and determinate w o u l d amount to an " i n t u i t i o n t s m " where, i n effect, we each appeal to our personal tastes. W h e n the new versions of liberalism fall short of such grand expectations, they w r o n g l y appear to amount to n o t h i n g at a l l .

by full realization of one or more first principles that hold out exception,

Rawls calls the " p r i o r i t y defines moral

with-

one or more first principles that solve w h a t John progress

problem."

6

Second, a systematic theory

for us because we can measure h o w just

a society we have by h o w close we are to the ideal. Even if we

This b o o k w i l l chart a t h i r d way, to free the hostage f r o m these

could never fully actualize such an ideal, our progress should be

false dilemmas. It proposes foundations for liberalism that f a l l

measured, asymptotically, by h o w closely we approach i t . T h i r d ,

i n t o neither absolutism nor relativism, that are based on neither

a systematic theory should provide solutions that h o l d as a mat-

religion nor a m o r a l i s m , and that amount, in the end, to something

ter of general theory regardless of social context. They should

less than systematic theory and to something more than i n t u i t i o n -

offer the same prescriptions regardless of the d i f f e r i n g beliefs or

ism. This t h i r d way, the ideal of a self-reflective society, combines

practices i n d i v i d u a l s or groups may b r i n g to the issue of justice.

the o b j e c t i v i t y of morals asserted by the absolutists w i t h the sen-

They s h o u l d , i n other w o r d s , be context-independent

sitivity to social context asserted by the relativists; it combines

context-dependent.

the value of neutrality on religion asserted by the secularists w i t h

ditions such as resources and technology (and the lack of outside

the value of having values i n public spaces asserted by the new

interference), the principles of justice offered by systematic theo-

religious r i g h t ; and i t combines the sensitivity to social justice as-

ries do not vary in their basic substantive implications f r o m one

serted by the reconstructors of liberalism w i t h the awareness o f

society to another. In particular, they do not vary w i t h the be-

the c o n t r o v e r s i a l l y and incompleteness of those solutions asserted by i n f l a t i o n i s t s .

rather than

Given the availability of certain objective con-

liefs and practices accepted by the people w h o live in the societies being evaluated.

Let us begin w i t h the debate inside liberalism itself. Over the

I w i l l argue that there are crucial impediments, both substan-

last t w o decades, those a t t e m p t i n g to reconstruct liberalism have

tive and m e t h o d o l o g i c a l , to this k i n d of systematic theory, and

aspired to present us w i t h a systematic

theory of the first p r i n -

that the most plausible model for understanding the true com-

ciples of the just society. However, there are serious impediments

plexity of p o l i t i c a l m o r a l i t y is not the systematic liberalism gen-

4

U t e l i m i t s of S y s t e m a t i c Justice

The P r o b l e m o f V a l u e

erally aspired to, but a different model that I w i l l call " l i m i t e d

o f f e r i n g definite conclusions—prescriptions

l i b e r a l i s m . " O n this construction, three main points should be

specific guidance than w o u l d sheer i n t u i t i o n i s m .

made about the status of liberal political philosophy. First, we

S

that give far more

Briefly, I w i l l propose a solution to the p r o b l e m of p o l i t i c a l

have c o m p e t i n g first principles, "['here are fundamental moral con-

legitimacy by arguing that a self-reflective society produces o b l i -

flicts a m o n g competing ultimate principles even under the best

gations on the p a r t of all its members, instead of basing o b l i g a t i o n

conditions to w h i c h we m i g h t realistically aspire. I n other w o r d s ,

on legitimacy, I w i l l propose that we base legitimacy on obliga-

the pieces of our ideal solution d o n ' t neatly fit together even under

t i o n . T h e resulting n o t i o n of political legitimacy purports to solve

the best conditions we m i g h t realistically imagine. We have c o m -

the core issues c o n f r o n t i n g the liberal state w i t h o u t the neces-

peting "ideals w i t h o u t an i d e a l " rather than a solution to the

sity for a systematic

p r i o r i t y p r o b l e m that resolves all conflict among first principles.

social justice. W i t h i n a more limited d o m a i n , this strategy sup-

Second, we have fundamental moral conflicts in our identification

ports first principles f o r an ideal theory of the liberal state. Instead

of m o r a l progress. U is possible, in other w o r d s , for each preferred

of a systematic theory of justice, it offers a more limited theory of

state of affairs to be more just than the last but for us to end up in a

legitimate p o l i t i c a l institutions. Instead of one overall judgment

cycle where we started, v i o l a t i n g transitivity (or acyclicity). T h i r d ,

of social justice, it decomposes justice i n t o many morally appro-

instead of systematic solutions that are context-independent,

theory resolving all the substantive issues of

we

priate decisions by many people i n distinct roles in the requisite

have l i m i t e d solutions that are context-dependent. By this 1 mean

legitimate p o l i t i c a l institutions. Its distinctive prescriptions w i l l

that w h a t is m o r a l l y appropriate may vary significantly, depending

focus, not on the substance of social justice, but on the conditions

on the social practices that are widely accepted in a given society.

w h i c h must be satisfied by the institutions that must make the

W i t h i n l i m i t e d liberalism, we w i l l not aspire to resolve a l l

decisions, i n that way, my proposal w i l l avoid the full force of the

m o r a l conflicts. We w i l l not presume to settle the p r i o r i t y p r o b -

conundrums of systematic justice to w h i c h we n o w t u r n .

lem a m o n g c o m p e t i n g substantive principles. Indeterminacies and fundamental tensions a m o n g first principles are inevitable. To pre-

1.2 The Problem

sume otherwise is not to d o justice to the true c o m p l e x i t y of p o l i t i c a l m o r a l i t y . But then h o w are trade-offs among c o m p e t i n g principles to be arrived at? Can we get definite results w h e n p r i n ciples conflict and w h e n theory does not seem to define systematicpriorities? Part 3 w i l l propose a strategy that embraces these complexities, w h i l e at the same time o f f e r i n g a basis for definite prescriptions. Since Rawls, the crucial options for liberal theory have seemed to b o i l d o w n to either systematic theory or " i n t u i t t o n i s m . " I n t u i t i o n ism has been treated, essentially, as the absence of a systematic t h e o r y — a tack that seems to leave us all to trade off conflicts

of

Value

D i s t r i b u t i v e justice can be thought of as a c o n j u n c t i o n of three separate issues: (a) T h e p r o b l e m of value, or what is being d i s t r i b u t e d (b) T h e p r o b l e m of structure,

or how

that value is d i s t r i b -

u t e d — t h a t is, its shape, impersonally considered (c) T h e p r o b l e m of assignment,

or to whom

positions i n the

structure are granted, or how those positions are rationed o r given out These three issues, together, define justice within

a given soci-

a m o n g principles as we see fit. I n part 3, we w i l l see that there are

ety. I n a d d i t i o n , there are, of course, issues about justice or injus-

other o p t i o n s . It is possible to abandon systematic theory w h i l e

tice i n the relations among societies. However, we shall see that

fbs

The fmhhm

l i m i t s ef Systematic Assise

©S ¥ s b e

7

the task is d a u n t i n g enough, w i t h o u t the further complexities o f

if we depart systematically f r o m actual preferences, we face an

international relations.

alternative source of difficulty that is equally d a u n t i n g .

My

1

focus in part t w i l l be on the true complexities of the

Beginning w i t h theories that rely o n preference

satisfaction,

substantive issues posed by the three problems. Part 2 w i l l t u r n

we can dramatize the problem by considering some e m p i r i c a l

to the variety of possible decision procedures for resolving these

w o r k of F.. i„ T h o r n d i k e , a psychologist w h o used dollars as place

substantive issues, i n the end, I w i l l argue for a particular cate-

holders for u t i l i t y in studies of C o l u m b i a University students in

g o r y of decision procedure that can deal w i t h these substantive

the 1930s. T h o r n d i k e tells us that for the sums of money specified,

issues to the degree necessary for l i m i t e d liberalism. T h i s decision

the C o l u m b i a students w o u l d — o n average—agree to:

procedure w i l l contrast sharply w i t h the hypothetical thought experiments that have f o r m e d the basis for all recent attempts at systematic liberal theory. W h i l e the substantive and m e t h o d o l o g i cal impediments to systematic theory are indeed very great, m y theme i n part 3 w i l l be that a version of unsystematic theory can be developed that satisfies criteria for an acceptable theory that [ w i l l propose. By the problem

of value, I mean the problem of defining w h a t

we are d i s t r i b u t i n g . Is it money, utility, or w h a t Rawis calls p r i mary goods? Is it prestige or self-esteem? Is it w h a t Bruce Ackerman

calls m a n n a ?

2

For there to be an issue about the structure

Have one upper f r o n t t o o t h

S 5,0 00

pulled out Have one little finger of one

$75,000

hand cut off Eat a dead beetle one inch long

$5,000 $10,000

C h o k e a stray cat to death ( w i t h bare hands) Have to live all the rest of your

$1,000,000

life on a farm in Kansas, ten miles f r o m any t o w n

of d i s t r i b u t i o n , there has to be something that is being d i s t r i b -

These d o l l a r amounts were offered as the students' o w n precise

u t e d — s o m e t h i n g whose d i s t r i b u t i o n has a m o r a l l y relevant effect

assessments of their interests at stake in these possible events.' The i m p l i c a t i o n is that if one of the C o l u m b i a students were stranded

on human interests. In other w o r d s , to resolve the problem of value, we must have

on a f a r m i n Kansas for the rest of his life, i t w o u l d amount to

a t h e o r y for assessing human interests. I w i l l pursue these issues

a d e p r i v a t i o n equivalent to the mental suffering his peers w o u l d

in greater detail i n sections 2.6 and 2.7, but it is w o r t h paus-

experience if they had to eat t w o hundred dead beetles, each an

ing here to identify the basic issues. I w i l l treat the p r o b l e m of

inch l o n g . As i n the later development of cost-benefit

value i n terms of t w o dilemmas, one that arises immediately and

dollars are treated as place holders for utility.' Such conclusions

another that arises w h e n time is considered. W e ' l l t u r n to the

seem s t a r t l i n g t o us today because they are entirely innocent of the

second d i l e m m a i n the next section.

difficulties t h a t apply to interpersonal comparisons of the inten-

T h e immediate difficulty in assessing human interests is that If we use ivant-regarding

c r i t e r i a — t h a t is, if we rely o n criteria

that identify interests w i t h satisfaction of at least some actual

analysts,

1

sity of preference satisfaction, difficulties emphasized by Pareto, Lionel R o b b i n s , and others.' O n the other hand, if we use criteria for evaluating interests

preferences—we face various w e l l - k n o w n difficulties about inter-

that are not w a n t - r e g a r d i n g , we can interpret a change as serving

personal comparisons of want satisfaction.

someone's interests even if none of that person's o w n preferences

1

O n the other h a n d .

F u t a r e ©erse restions

The L i m i t s of S y s t e m a t i c Justice

9

agree w i t h the assessment. Such criteria face a different f u n d a -

orities of the liberal state. The institutions that have l e g i t i m a c y —

mental challenge. They must justify paternalistic inferences that,

in w h a t I w i l l cal! a self-reflective political c u l t u r e — w i l l specify

somehow, the theorist is a better judge of person X s

interests

procedures more determinate than sheer i n t u i t i o n i s m for dealing

than X is. W h i l e we m i g h t all agree that paternalism may be justi-

w i t h the inevitable fundamental m o r a l conflicts. I n d o i n g so, they

fied in dealing w i t h children (and in some other isolated cases), to

w i l l wrestle, i n particular contexts, w i t h the d a u n t i n g problems of

b u i l d paternalism into a general answer to the p r o b l e m of value

value, structure, and assignment.

w o u l d be to treat an entire adult p o p u l a t i o n as if it were composed of c h i l d r e n — a s i f the theorist (or the state f o l l o w i n g such theories)

1.3 The Problem

c o u l d routinely judge their interests better than they could.*

Vuture

T h i s d i l e m m a appears to enmesh any substantively ambitious

of Value

Continued:

Generations

assessment of human interests in one intractable controversy or

The challenge for systematic justice becomes much more dif-

another. Later, we w i l l see that the real force of this dilemma de-

ficult once time is i n t r o d u c e d . O u r notions of i n d i v i d u a l human

pends u p o n considering interests in a context-independent man-

interests have not been refined to deal w i t h problems i n v o l v i n g

ner. It depends o n the expectation that we should be able to assess

possible future people. However difficult the p r o b l e m of value

the interests of any i n d i v i d u a l simply by k n o w i n g h o w she ranked

mav be w h e n applied to the interests of the l i v i n g , once the inter-

on an index of p r i m a r y goods, or on a utilitometer, or in her

ests of future generations are taken i n t o account, new sources o f

shares of manna. For this k i n d of systematic theory of justice,

intractable conflict emerge. If we consistently tie our conception

there is no need to k n o w the social practices for dealing w i t h

of interests to personal identity, we face one sort of c o n u n d r u m ;

these matters that are generally accepted in a particular society.

if we consistently untie our conception of interests f r o m personal

My

p o s i t i o n w i l t be that if those social practices satisfy certain

identity, we face another, l b give up either conception consistently

d e m a n d i n g conditions, then they are legitimate and, for purposes

w o u l d open us to bizarre and compelling counterexamples. But

of the relevant social choices by the relevant institutions, p r o v i d e

we cannot rely on both simultaneously w i t h o u t tolerating funda-

a basis for appropriate judgment.''

mental m o r a l conflict and fundamental p l u r a l i s m . A n d we cannot

O f course, there are also severe limitations to relying on w h a t

ignore this set of issues, because no defensible theory of justice

is generally believed. Some of the worst injustices in history have

can neglect the facts that people are b o r n and die and that our

been largely accepted in their respective societies, even by their

actions may have serious effects on the interests of those yet to

victims. "

be b o r n .

1

H o w e v e r , by specifying criteria for the development of shared

The t w o conceptions of interests at issue are radically incom-

understandings, we can distinguish forms of consensus that arc

mensurable; they do not fit together i n t o a coherent image of the

suspect f r o m those that have legitimacy. When victims of injus-

interests of possible future people.' Once more, we get a k i n d of

tice accept the ideologies that rationalize their positions, it w i l l

broken image rather than a unified vision in clear focus/

be obvious that the conditions under w h i c h they came to develop

We w o u l d o r d i n a r i l y assume that person X can be harmed if

those notions fall far short of our requirements. I w i l l propose a

and o n l y if X is made worse off than X otherwise w o u l d have

context-dependent strategy that is sufficiently demanding about

been. For o r d i n a r y cases, this assumption w o r k s well enough, if

l i b e r t y of political culture that it plausibly clarifies the first p r i -

1 punch you in the nose, you are worse off a f t e r w a r d than be-

10

fufare Generations

The L i m i t s o f S y s t e m a t i c j u s t i c e

11

fore (your nose is bleeding); that is w h a t we mean w h e n we say

a large scale. Let us call this the laissez-faire

you were harmed. If, somehow, it could be s h o w n that your nose

simplify matters, we m i g h t imagine an alternative o p t i o n — l e t us

w o u l d spontaneously have begun to bleed at exactly that m o m e n t ,

call it restriction-—

regardless of whether you had been punched, most, if not a l l , of

over several generations. W i t h o u t specifying h o w this m i g h t be

the case for your having been harmed (by my punch) w o u l d evapo-

accomplished, let us imagine that our demographers and econo-

rate. Let us call this the identity-specific

mists tell us that great prosperity w o u l d likely be achieved after

notion

of harm:

X must

be made worse off than X otherwise w o u l d have been for X to have been h a r m e d .

policy o p t i o n . To

that w o u l d sharply curtail p o p u l a t i o n g r o w t h

several generations of restriction. It is w o r t h n o t i n g that the p o p u l a t i o n that would

exist after

A l t h o u g h the identity-specific n o t i o n of h a r m is b o t h c o m m o n -

several generations of p o p u l a t i o n restriction is not merely a sub-

sensical and a central part of many legal notions (particularly i n

set of the p o p u l a t i o n that w o u l d exist after several generations of

t o r t law),' it is inadequate for the evaluation of the interests of

laissez-faire. I n fact, after several generations, the overlap q u i c k l y

5

possible future people.

fades to v i r t u a l l y n i l . Consider all the contingencies involved in

Consider t w o simple cases, one at the level of i n d i v i d u a l choice,

d e t e r m i n i n g the identity of a particular generation ( w h o marries

the other at the level of social choice. First, a w o m a n has a dis-

w h o m , the t i m i n g of c h i l d r e n , w h o m the c h i l d r e n marry, and so

ease or is under medication for a given p e r i o d such that, if she

on). M y i d e n t i t y or yours w o u l d be different if any of these fac-

were to conceive a child d u r i n g that p e r i o d , it w o u l d have seri-

tors had been different (so that I could no longer speak of " m y "

ous disabilities (perhaps, for instance, she has German measles

identity i n the same sense). I w i l l accept Thomas Schwartz's cal-

and the c h i l d w o u l d be deaf). Llowever, if she were to w a i t u n t i l

culations o n this issue and conclude that after several generations,

after that p e r i o d , she could reliably expect to conceive a n o r m a l

the overlap v i r t u a l l y disappears.

c h i l d . M a n y of us w o u l d say that she should w a i t in the interests

in the same p o s i t i o n t r y i n g to condemn the policy of laissez-faire

of the c h i l d . H o w e v e r , we cannot say so w i t h i n the confines o f

as we were in a t t e m p t i n g to condemn the decision of the w o m a n

6

If this is the case, then we are

the identity-specific n o t i o n of h a r m . The child w h o is b o r n w i t h

to conceive d u r i n g the risky p e r i o d (leading to a child w i t h seri-

serious disabilities is not worse off than it otherwise w o u l d have

ous disabilities). We cannot say of all those w h o w o u l d experience

been, because i f the mother had w a i t e d , it w o u l d not have

been;

suffering and mass misery due to o v e r p o p u l a t i o n that they are

another c h i l d w o u l d have been conceived instead, as differentiable

worse off than they otherwise w o u l d have been, because were it

f r o m the first as one sibling f r o m another. W i t h i n the confines of

not for the laissez-faire p o p u l a t i o n policy, they would

the identity-specific n o t i o n , the other child is not harmed by the

been,

m o t h e r ' s decision to conceive d u r i n g the risky p e r i o d . O r , if it is

people w o u l d have existed instead. Over several generations, the

h a r m e d , we cannot formulate the h a r m w i t h the identity-specific

results of the t w o p o p u l a t i o n policies—mass misery f r o m laissez-

conception.

faire versus prosperity f r o m r e s t r i c t i o n — w o u l d be visited upon

4

5

not

have

i f the other policy had been chosen, completely different

Consider this social choice parallel: Let us imagine a t h i r d

people w i t h entirely different identities. Hence, whatever benefits

w o r l d c o u n t r y facing massive p o p u l a t i o n problems. Suppose that

or harms may be involved cannot be conceptualized w i t h i n the

demographers and economists together establish that if n o t h i n g

confines of the identity-specific n o t i o n of h a r m .

is done about o v e r p o p u l a t i o n , after several generations the c o u n -

T h i s issue is not a mere philosopher's q u i r k , i t is w o r t h n o t i n g

try w i l l face disaster—mass misery, m a l n u t r i t i o n , starvation o n

that a f l o o d of l i t i g a t i o n has bedeviled the courts on exactly this

12

The l i m i t s o f S y s t e m a t i c Justice

Future G e n e r a t i o n s

13

p r o b l e m . M a n y " w r o n g f u l l i f e " lawsuits have been b r o u g h t o n

Rawlsian p r i m a r y goods or of some other metric for benefits and

behalf of children whose prenatal defects should have been d i a g -

harms that d i d not make essential reference to preference satisfac-

nosed by a doctor or a laboratory.' Typically, the contestants c l a i m

t i o n . We can call such theories, u t i l i t a r i a n i s m included,

that the fetus should have been a b o r t e d — i f the doctor or labora-

independent

t o r y had only been sufficiently competent to i n f o r m the prospec-

is the most p r o m i n e n t theorist w h o has argued for some v a r i -

tive parents ot the child's probable disability. The difficulty faced

ant of u t i l i t a r i a n i s m precisely on the grounds that it is identity-

by the courts has been very much the same as the one mentioned

independent, that it avoids the counterexamples to w h a t I have

here. T h e o r d i n a r y way to conceptualize damages w i t h i n t o r t l a w

been c a l l i n g the identity-specific view.''

identity-

theories (for the assessment of interests). Derek Par fit

is to imagine r e t u r n i n g the injured party to the position he w o u l d

The p r o b l e m w i t h identity-independent theories is replace-

have been in had the injury not occurred. But in this case, t h a t

ability. T h i s p o i n t can be made most dramatically w i t h a sci-

p o s i t i o n is nonexistence. Nonexistence is, of course, not the same

ence fiction scenario. Suppose that I could painlessly and instan-

as death. Never to have existed is very different f r o m having a life

taneously replace

that is interrupted.

wilt appreciate it more. Furthermore, as a general matter, the new

all the readers of this book w i t h others w h o

G i v e n some of the bizarre implications of the identity-specific

readers—let us call them replacements—-will get more out of life.

v i e w o f h a r m , one clear alternative takes on new attractiveness.

O n whatever identity-independent dimension of value we are talk-

Why

not compare states of affairs by l o o k i n g at the benefits and

harms disconnected

ing about, they w i l l achieve higher scores. To s i m p l i f y matters, if

f r o m any considerations having to do w i t h the

we assume that the dimension of value is u t i l i t a r i a n i s m , then the

identities of the individuals? One theory has, of course, been par-

point is that they w i l l add more utiles to life each day than d i d

t i c u l a r l y n o t e w o r t h y for d o i n g this: u t i l i t a r i a n i s m . Setting aside

their predecessors.

problems of interpersonal comparisons,

let us suppose that we

Note that I have not specified anything about how

this tran-

had a utilitometer, or that we could make at least rough inter-

sition takes place. Perhaps, as in the movie Invasion

personal comparisons of the intensity of preference satisfaction.^

Snatchers,

T h i s w o u l d p e r m i t us to compare the disutility experienced by the

on your appearances and incorporating your roles and memories.

of the

Body

it occurs t h r o u g h creatures f r o m outer space taking

seriously disabled c h i l d w i t h the u t i l i t y experienced by the nor-

Perhaps 1 have a machine that simply fabricates new copies. O r

ma! one, or to compare the disutility experienced by all those w h o

perhaps a new, m i n i a t u r e technology is contained w i t h i n the book

suffer f r o m mass misery due to overpopulation w i t h the u t i l i t y

you are reading, a technology that w i l l go into effect as soon as

of those w h o experience prosperity f r o m p o p u l a t i o n restriction.

you reach a certain page. I n any case, the reason for posing the

U t i l i t a r i a n i s m has the property that it permits us to look at any

issue in a science f i c t i o n scenario is that it clarifies the v u l n e r a b i l i t y

t w o states of affairs and compare the benefits and harms w i t h o u t

of identity-independent views to replaceability arguments w i t h o u t

having to k n o w anything about h o w the identities of the people

raising e m p i r i c a l complications about the fear and disutility ex-

in one state compare to the identities of the people i n the other. It

perienced by those w h o are eventually replaced. (For this reason,

is w o r t h n o t i n g that w h i l e u t i l i t a r i a n i s m is the most notable ex-

you w i l l have to consider my example hypothetical or assume that

ample of this property, it is not the only possible one. Suppose w e

you have already passed the crucial page.)

compared the t w o states in terms of an i m p a r t i a l d i s t r i b u t i o n o f

O f course, replaceability arguments are not l i m i t e d to science

14

f u t u r e geaeritHaras

The l i m i t s o f S y s t e m a t i c Justice

IS

f i c t i o n . Consider this dialogue about the collectivization of Soviet

d u c t i o n of the d e f o r m e d child or to the miseries of o v e r p o p u l a t i o n

agriculture f r o m A r t h u r Koestler's novel Darkness

w i t h o u t w o r r y i n g about whether the better-off people envisioned

at Noon

(Com-

under the alternative choice are the same people. But the same

missar ivanov is addressing the prisoner Rubashov): "Yes, we l i q u i d a t e d the parasitic part of the peasantry and let it d i e of s t a r v a t i o n , i t was a surgical o p e r a t i o n w h i c h had to be done once and

for a l l ; but i n the g o o d o l d days before the R e v o l u t i o n just as

m a n y d i e d in any d r y y e a r — o n l y senselessly and pointlessly. T h e v i c t i m s of the Y e l l o w River floods i n C h i n a amount sometimes to h u n -

anonymous consideration of interests leads these theories to neglect the question of whether the people under the replacement scenario are the same as the people in the o r i g i n a l p o p u l a t i o n . The general d i l e m m a is that if we tie interests consistently to personal identity, we face the identity-specific counterexamples, but

dreds o f thousands. N a t u r e is generous in her senseless e x p e r i m e n t s

if we untie them consistently f r o m persona! identity, we face the

o n m a n k i n d . W h y s h o u l d m a n k i n d not have the rights to e x p e r i m e n t

replaceability scenario.

on

It may be w o r t h pausing to consider t w o creative efforts to

itself?" H e paused: Rubashov d i d n o t answer. H e went o n : " H a v e you ever

avoid one h o r n or another of this d i l e m m a . The first, f o r m u l a t e d

read brochures of an a n d - v i v i s e c t i o n i s t society? They are s h a t t e r i n g

by Peter Singer, aspires to avoid replaceability. I w i l l argue that

and h e a r t b r e a k i n g ; w h e n one reads h o w some p o o r cur w h i c h has h a d

it does not. T h e second, formulated by Jonathan Bennet, seems

its liver cut o u t , whines a n d licks his t o r m e n t o r ' s hands, one is just as nauseated as y o u were t o n i g h t . But i f these people had their say, we w o u l d have n o serums against cholera, t y p h o i d , or d i p h t h e r i a . "

1 0

to avoid the identity-specific counterexamples, i w i l l argue that it does not. Singer distinguishes his "preference" u t i l i t a r i a n i s m f r o m the

The general p r o b l e m is that for any identity-independent con-

sensate classical version: " T h i s other version of u t i l i t a r i a n i s m

c e p t i o n of interests, so long as the abstract structure of d i s t r i b u -

judges actions, not by their tendency to m a x i m i z e pleasure or

t i o n , the payoffs to positions, is at least as g o o d under the re-

avoid p a i n , but by the extent to w h i c h they accord w i t h the

placement scenario, there are no grounds for objecting w i t h i n the

preferences of any beings affected by the action or its conse-

confines of this k i n d of theory. In fact, if we are utilitarians and the

quences." F r o m this property of preference u t i l i t a r i a n i s m , Singer

replacement scenario w o u l d increase utility, we can be obligated

concludes: " K i l l i n g a person w h o prefers to continue l i v i n g is

to k i l l everyone and replace them w i t h a new p o p u l a t i o n of better

therefore w r o n g , other things being equal. T h a t the v i c t i m s are

u t i l i t y - m a x i r n i z e r s . O n the identity-independent view, people are

not a r o u n d to lament the fact that their preferences have been

simply vessels for h o l d i n g so much u t i l i t y (or whatever else is o u r

disregarded is i r r e l e v a n t . " ' 1

m e t r i c of value), i t is the u t i l i t y that matters, not the vessels. If a

Singer's n o t i o n is that some beings, such as animals, fetuses,

vessel breaks, it has no importance p r o v i d e d another vessel can

and infants, experience u t i l i t y only i n the p r i m i t i v e sensate sense.

be f o u n d or be created that w i l l h o l d as much or more.

Singer believes that replaceability arguments still apply i n their

i t is the very m e r i t of the identity-independent principles i n

case, and he explores the implications of this fact for the eating

dealing w i t h the earlier counterexamples to the identity-specific

of meat and the permissibility of a b o r t i o n and even infanticide.

the assessment of interests

However, he believes that the applicability of u t i l i t y to more de-

f r o m the identities of the people a f f e c t e d — w h i c h renders t h e m

veloped c h i l d r e n and adults i n this second-higher sense of pref-

vulnerable to this repiaceabitity scenario. Because the interests are

erence u t i l i t a r i a n i s m w o u l d block replaceability scenarios f r o m

v i e w e d anonymously, such theories w i l l permit us to object to p r o -

being applied to such persons, i t is in this way that his d i s t i n c t i o n

view-—-namely, that they disconnect

16

The L i m i t s of S y s t e m a t i c Justice

Future Generations

17

between preference and sensate u t i l i t a r i a n i s m m i g h t be taken to

personal identities, i t avoids the counterexamples w i t h w h i c h we

get us out of our dilemma (when applied, at least, to older c h i l d r e n

started, but only by creating a vulnerability to replaceability argu-

and adults).

ments.

I believe that Singer's escape is illusory. Preference u t i l i t a r i -

Consider a second strategy for avoiding our d i l e m m a . It has

anism is, at b o t t o m , identity-independent and thus vulnerable to

sometimes been argued that we should only count the utilities of

some versions of the replaceability scenario. This becomes ap-

those w h o w o u l d exist were an action not taken. Bennett has de-

parent if one thinks carefully about w h a t the "other things being

veloped one variant of this approach: " T h e question o f whether

e q u a l " clause might mean in Singer's s o l u t i o n . Recall that i n o u r

action A is m o r a l l y o b l i g a t o r y depends only u p o n the utilities of

various scenarios, the replacements can also be imagined to have

people w h o w o u l d exist if A were not p e r f o r m e d . "

preferences i n a self-conscious and reflective sense. Satisfaction o f

posal helps w i t h the particular examples we directed against the

those preferences may easily t u r n out to balance the f r u s t r a t i o n o f

identity-specific view. For example, if the p o p u l a t i o n planner com-

the life plans of the previously existing p o p u l a t i o n .

u

T h i s pro-

pares the benefits of the restrictive policy w i t h the misery experi-

M o r e specifically, if we imagine, as Singer seems to, a special

enced by those persons w h o w o u l d exist were that alternative not

d i s u t i l i t y in an o n g o i n g life being interrupted (whether or not the

taken, then there is a clear case for the restrictive policy. Simi-

person is around to regret the i n t e r r u p t i o n ) , we m i g h t , s y m m e t r i -

larly, i f the prospective mother compares the benefits of having a

cally, imagine a special u t i l i t y experienced by each r e p l a c e m e n t —

n o r m a l c h i l d w i t h the disutility of the child w h o w o u l d exist if

for example, u t i l i t y f r o m the miracle of his or her being b r o u g h t

that alternative were not chosen, then there is a clear case for her

i n t o existence. The new person may well experience an "existence

waiting.

b o n u s " that counterbalances the disutility f r o m the previous per-

T h i s strategy does n o t , however, offer a genuine way out of

son's existence i n t e r r u p t i o n . A n y reader of Walt W h i t m a n ' s Song

our d i l e m m a . W h i l e i t handles our t w o particular examples, it is

w i l l have a v i v i d sense of such an existence bonus. There

still vulnerable to the same basic difficulty we encountered w i t h

of Myself

is no reason, in principle, why one of these must be greater t h a n

identity-specific positions: on these views, it cannot be counted as

another. The theoretical v u l n e r a b i l i t y to replaceability arguments

a harm that someone is created to endure a miserable existence.

remains.

Bennet's strategy is vulnerable whenever the others

who would

T h e v u l n e r a b i l i t y is built i n t o the foundations of u t i l i t a r i a n i s m .

exist anyway are benefited by the misery of the newly produced

It is unavoidably identity-independent because it is w h a t m i g h t be

person. For example, imagine a p o p u l a t i o n considering whether

called a purely structural p r i n c i p l e . It defines the sufficient c o n d i -

to breed a race of test-tube-produced slaves. The persons w h o

tions f o r a p p r o v i n g a change based entirely on i n f o r m a t i o n avail-

w o u l d exist were this policy not adopted are the present popula-

able f r o m a listing of payoffs to positions under one alternative as

t i o n . They w o u l d benefit overwhelmingly f r o m having a race of

compared to another. ' If the total (or average, for some versions)

slaves. T h e only ones w h o w o u l d suffer are precisely the ones w h o

is higher under one alternative, then i t must be chosen. There is

cannot be considered in this strategy—the ones w h o w o u l d not

no reason for u t i l i t a r i a n i s m (or any other purely structural p r i n -

exist were the policy not adopted. They are the ones harmed by

ciple) to be concerned w i t h the issue o f whether the identities o f

the policy, yet their misery could not be counted by this proposal.

1

the replacements are different f r o m the identities of the o r i g i n a l s .

The t w o horns of our dilemma are constructed out of partial

Because u t i l i t a r i a n i s m completely unties human interests f r o m

pictures of the interests of possible future people. Each of the

18

Structure

The L i m i t s o f S y s t e m a t i c Justice

19

approaches has something to he said for i t . But relying o n one

mode, we w o u l d be led to other bizarre results. O u r procreational

consistently to the exclusion of the other w o u l d lead to disastrous

liberties, i n the negative-liberty sense of unconstrained personal

or bizarre results.

choice, w o u l d be encroached upon by a host of new obligations examples

and restrictions. Suppose we were consistent classical utilitarians

are required to make the p o i n t : procreational liberty. Procrea-

and applied that position to the question of p r o d u c i n g or not p r o -

t i o n a l l i b e r t y defines a sphere of choice of undeniable i m p o r -

ducing a d d i t i o n a l c h i l d r e n . So long as the a d d i t i o n a l c h i l d w o u l d

tance where single-minded reliance on either identity-specific or

add (or was reasonably likely to add) more u t i l i t y than disutility

identity-independent notions of human interest w o u l d lead to

(including whatever utility/disutility was caused by the c h i l d but

bizarre and d i s t u r b i n g results.

was experienced by siblings, friends, and others), then w e w o u l d

Consider a more mundane area where no exotic

Identity-specific theories, if relied o n consistently, give procrea-

be obligated

or m o r a l l y required to produce that c h i l d . I t w o u l d

t i o n a l l i b e r t y t o o broad a mandate, w h i l e identity-independent

no longer be a matter of discretion or of persona! choice. Once

theories, if relied o n consistently, give i t an overly restrictive one.

such issues are put in the category of m o r a l requirement, they are

Identity-specific theories open up too broad an area of procrea-

no longer w i t h i n the realm of procreational liberty.

t i o n a l l i b e r t y because they do not count as harms actions w h i c h ,

longer i n the area of life where we are permissibly free to do as we

They are no

o n other theories for the assessment of interests, m i g h t plausibly

please so long as we do not h a r m or violate the rights of others.

be counted as harms.

They are moved i n t o the category of duty or requirement, where

I am assuming that we are placing procreational liberty w i t h i n some variant of the h a r m p r i n c i p l e , namely, that people acting i n d i v i d u a l l y or together, consensually, can do as they please so long as they do not h a r m (or invade the rights of) others. '

1 1

failing to p e r f o r m the action i n question is m o r a l l y b l a m e w o r t h y and l i v i n g up to the requirement is an o b l i g a t i o n . Consistently relying o n the identity-specific view of h a r m overly demoralizes and broadens procreational liberty. Consistently rely-

Suppose families go ahead and produce seriously disabled or

ing o n the identity-independent view overly moralizes and nar-

d e f o r m e d children w h e n they k n o w perfectly well that after a

rows procreational liberty. Each of these familiar and coherent

w a i t i n g p e r i o d they could produce n o r m a l ones (or be reliably

approaches, approaches that w o r k well enough in o r d i n a r y life,

likely to d o so). Is that not sufficiently irresponsible

yields bizarre and unacceptable

that it raises

results for the interests of pos-

basic questions about the appropriate breadth of procreational

sible future people. We are left w i t h conflicting, incommensurable

liberty? I am raising this p r i m a r i l y as a m o r a l question, w i t h o u t

images—images w h i c h d o not fit together i n t o a unified con-

getting i n t o the complicated issue of legal remedies or restrictions.

ception but w h i c h serve, at best, to identify c o n f l i c t i n g m o r a l

I merely w a n t to make the p o i n t that there is something objection-

considerations that can be balanced out in particular cases.

able about p r o d u c i n g a c h i l d under such (avoidable) conditions, and that w h a t makes that action objectionable is some considera t i o n of the interests of the c h i l d — o n c e those interests are conceived i n some way different f r o m the manner permitted by the identity-specific n o t i o n .

f A Structure:

Problems

of

Progress

Let us t u r n to the second basic problem of justice, the issue of structure.' Suppose w e were to have perfect solutions to the issue

O n the other hand, i f we were consistently to conceive the inter-

of h o w to measure people's interests (at least so far as these are at

ests of possible children i n the alternative, identity-independent

stake in questions of d i s t r i b u t i v e justice), and suppose we were to

20

2i

Sfruîture

The l i m i t s of S y s t e m a t i c Justice

have perfect solutions to the issue of h o w people ought to be as-

Table i . T h e Pure P r o b l e m of Justice

signed positions i n the structure according to some viable theory oi: equal o p p o r t u n i t y .

2

Even w i t h perfect solutions to the problems of value ( w h a t

A

B

Position Payoffs

Position Payoffs

is d i s t r i b u t e d ) and of assignment (how people get and m a i n t a i n positions in the structure), the fundamental p r o b l e m of structure

P,

S.

S,

i\

w o u l d remain to be considered in its o w n right before we c o u l d

p"

s"

s"

p"

arrive at a systematic, substantive theory of justice. Given a listing of payoffs (in our chosen value) to positions (n-tiles of the p o p u l a t i o n defined by their shares of the chosen value), w h a t can w e say about the justice or injustice of any t w o alternative situations this stock example, w h i c h I w i l l b o r r o w f r o m G i l b e r t H a r m a n ,

A and B? (See table i . ) M e r e l y f r o m the i n f o r m a t i o n in t w o such listings of payoffs to

J u d i t h T h o m s o n , and others/'

positions, we can tell whether A or B has a higher total or a higher

Imagine a doctor i n a battlefield or other emergency situation

m i n i m u m , or is more equal or w o u l d benefit or disadvantage more

w h o has to choose between saving five lives and saving one. The

strata of society. M a n y of the central issues of distributive jus-

one life w i l l take all of his time and resources. But if he neglects the

tice can be stated w i t h i n the confines of this pure p r o b l e m . I n an

one, he can save five others. We w o u l d not blame h i m for neglect-

i m p o r t a n t article, Douglas Rae dubs this pure p r o b l e m " s i m p l e

ing the one. indeed, five lives saved at the cost of one lost, seems,

j u s t i c e . ' W h i l e i t is " s i m p l e " because many of the crucial c o m -

on its face, a reasonable calculation. But now consider a second

plexities have been relegated to the problems of value and struc-

version. O u r doctor, n o w a convinced u t i l i t a r i a n , has returned to

ture, it is, i n its o w n r i g h t , even more difficult than has previously

the hospital, where he has five patients, each needing emergency

been realized, i n fact, I w i l l argue, no solution that passes certain

d o n a t i o n of some vital organ. There are, unfortunately, n o v o l u n -

m i n i m u m tests is possible. I w i l l use these conclusions to raise-

tary organ donors. But a patient in r o o m 306 has checked in for a

some general issues about the kinds of answers we should expect

routine physical exam. H e is a healthy specimen and, by himself,

1

3

could supply all the organs necessary to save the other five. O u r

f r o m theories of justice. U n t i l relatively recently, there was a widespread consensus

doctor cuts up the patient and redistributes the organs so as to

about the p r o b l e m of structure, and indeed about answers to the

save five lives. If the calculation (that five lives saved are w o r t h

entire issue of d i s t r i b u t i v e justice. As H . L . A . H a r t noted, there

more than the cost of one lost) was correct in the first case, w h y

was "a once widely accepted o l d faith that some f o r m of u t i l i t a r i -

is it not also correct i n the second?

a n i s m , i f only we could discover the right f o r m , must capture the essence of p o l i t i c a l m o r a l i t y . "

O f course, some complexities must be accounted for i n any u t i l i t a r i a n calculation applied to this case, i f it is u t i l i t y that is

4

W h y has utilitarianism fallen into disfavor? The most p o w e r f u l

ultimately being m a x i m i z e d , we must assume that i n d i v i d u a l lives

arguments against it focus on the fact that it does n o t , i n some

are place holders for future streams of u t i l i t y . I n this way, we can

sense, take seriously the "separateness of persons." M o s t notably,

reach the conclusion that five lives are likely to yield m o r e long-

it does not offer sufficient protections f r o m the kinds of sacrifices

term u t i l i t y than w o u l d one life. W h i l e the case m i g h t be m o d i f i e d

that the greater social g o o d can place on individuals. Consider

so as to b r i n g this assumption into question, it is n o t , on its face,

5

22

Tfie limits

an unreasonable assumption. Second, there are problems

about

the effect of such an intervention on social practices that do p r o duce great long-term u t i l i t y so long as people continue to rely o n t h e m — s o c i a l practices such as the routine physical exam.

23

Stnjsture

o f S y s t e m a t i c Justice

How-

ever, utilitarians have always had a response for such objections.

3. E q u a l i t y 4. The m i n i m u m share (or the m a x i m i n principle} W h e n we t h i n k of the general welfare, we t h i n k of the t w o separate dimensions in considerations

I and 2, "the greatest g o o d

I hey can lie or deceive or just keep things secret if it w i l l produce

of the greatest n u m b e r , " as i n Bentham's slogan (even t h o u g h ,

greater social u t i l i t y . W i t h o u t g o i n g into whether this strategy i n

operationally, only the first clause really mattered for Bentham).*

itself constitutes further grounds for objecting to u t i l i t a r i a n i s m ,

Alternatively, d i s t r i b u t i o n raises t w o fundamental and separable

we can see that it should be possible to preserve the inference that

issues: equality, w h i c h can be thought of as the relative standing of

aggregate u t i l i t y is served.

the less w e l l off strata, and m a x i m i n , w h i c h can be t h o u g h t of as

bor our purposes, t w o m a i n conclusions are w o r t h d r a w i n g f r o m this example. First, aggregate utility, even w h e n supplemented by the fact that most people are made better off, hardly constitutes an adequate solution to the problem of structure. We must also deal w i t h distributive objections focused o n l i m i t i n g the sacrifices that may be demanded in the name of overall social

the absolute

standing of the least well off stratum. In the examples

that f o l l o w , I w i l l measure equality simply by t a k i n g the mean of the differences f r o m the mean; A m a r t y a Sen has demonstrated some subtle and i m p o r t a n t differences in measures of equality, but these do not affect the basic argument developed here. ' 1

Each of these four basic criteria has its proponents. 'The first

u t i l i t y . Second, criteria for structure cannot be applied in isolation

point 1 w a n t to develop is that the inadequacy of each can

f r o m criteria f o r assignment—criteria

be

for w h o gets w h a t p o s i t i o n

dramatized by the fact that it w i l l support choices w h i c h v i o -

in the structure. There must be some fair process for d e t e r m i n i n g

late all three of the other basic criteria. Despite the enthusiasm

w h o suffers and w h o benefits. The arbitrariness of p i c k i n g out the

of Rawlsians, o n the one hand, and of utilitarians, o n the other,

patient in r o o m 306 violates our i m p l i c i t assumptions about fair

single-minded reliance on any one of these basic criteria, even for

assignment. We w i l l return to the assignment problem below, but

the pure p r o b l e m of justice, leads to disaster.

m the meantime, it should be emphasized that any solution to the

The more basic difficulty is that any complete principle w h i c h

structure problem can, at most, be necessary and not sufficient for

attempted to avoid these disasters w o u l d violate t r a n s i t i v i t y . A n -

an adequate s o l u t i o n , because criteria for fair assignment w o u l d

other way of saying this is that any principle w h i c h always sides

be required as w e l l .

w i t h three of these basic criteria w i l l take public policy i n a cycle

In dealing w i t h the structure p r o b l e m , we must c o n f r o n t t w o distinct families of consideration. One focuses on the general w e l fare, the other o n d i s t r i b u t i o n . F o l l o w i n g Brian Barry, I w i l l say that one m i g h t be called "aggregative" and the other " d i s t r i b u t i v e . " ' F r o m each of these t w o families, I w i l l take t w o basic considerations, to yield the f o l l o w i n g four: 1. The total welfare 2. The numbers

affected

(under some possible c o n d i t i o n s ) — a result that raises basic questions about the k i n d of connection commonly assumed between ideal theory and public policy. Let me demonstrate the first difficulty w i t h a series of simple numerical illustrations. I am assuming that all of the issues about what wc are. d i s t r i b u t i n g and -about h o w we measure it have already been resolved. Suppose we solved these issues to a degree beyond anyone's wildest o p t i m i s m . We have an index for, say, Rawlsian p r i m a r y goods or Ackermanian manna that we can rep-

The l i m i t s ®l S y s t e m a t i c Justice

24

Strwture

25

resent, for these purposes, w i t h cardinal, interpersonal shares to

tive objection to u t i l i t a r i a n i s m that has become a commonplace of

ranked positions. " Even w i t h such a s o l u t i o n , the pure p r o b l e m

recent theories of justice emphasizing the separateness of persons

of justice Is far more difficult than has been imagined.

and the great sacrifices w h i c h m a x i m i z i n g the total can sometimes

1

T h e p o i n t can be made as a sequence of abstract h o r r o r stories.

require. I n this case, most people are made worse off, equality is

Each h o r r o r story can be thought of as a m i n i m u m test for an ade-

decreased, and the m i n i m u m is devastated:

quate theory of justice. W h e n three of our basic criteria prefer one A

alternative, it is the one that should be chosen. Each h o r r o r story consists i n siding w i t h one of the four against the other three. I w i l l later show, however, that these four m i n i m u m tests, i n c o m b i n a t i o n , violate transitivity. Hence, any principle that satisfied all f o u r w o u l d not define a unified and coherent direction for public policy, i n that sense, we have to choose between m o r a l l y adequate choices in particular cases (avoiding the four h o r r o r stories) and coherent progress in our sequence of policy choices over time. In either case, the n o t i o n that we can gradually realize an ideal w i t h m o r a l l y adequate principles is undermined. The true c o m p l e x i t y of justice does n o t , by itself, i m p l y relativism or subjectivism,

10

I

20

1

30

I

40

I

50

i

60

1

70

1,000 3: M a x i m i n violates equality, the t o t a l , and the n u m -

Scenario

bers c r i t e r i o n . T h i s case is an extension of Douglas Rae's critique

11

b u t it does disappoint c o m m o n expectations about the k i n d of

B

i

s o l u t i o n our principles ought to provide.

of m a x i m i n . Rae showed h o w m a x i m i n can distribute less i n t o t a l , less equally.'" Particularly i n cases where the m i d d l e classes are

I: Equality violates m a x i m i n , numbers, and the t o t a l .

?

devastated, the welfare state may, nevertheless, i m p r o v e the lot

T h i s scenario is just an extension of Rawls's argument against

;

of those at the b o t t o m w h i l e the rich continue to get richer, i n

equality. The leveling approach to equality can be ruinous to a l l —

*

that case, the t o t a l may decrease w h i l e inequality increases along

l o w e r i n g the total in a way that makes most people worse off,

\

w i t h the m i n i m u m share. The example is not f a n c i f u l . Some may

i n c l u d i n g those at the b o t t o m . This possibility is illustrated by the

i

regard it as a g o o d description of the " B r i t i s h disease," a syn-

choice between A and B below:

\

d r o m e that has, at times, been thought to affect many of the aging

Scenario

A

B

10

2

20

2

30

2

40

2

50

2

60

2

70

2

welfare states of the West, i n this scenario, I have simply added a f a c t o r — t h e numbers affected. If d i s t r i b u t i n g less in t o t a l , less equally was a serious objection to m a x i m i n , an even more serious o b j e c t i o n is d i s t r i b u t i n g less in t o t a l , less equally, w h i l e at the same t i m e m a k i n g most people (or most strata) worse off. Here is an example: A

B

10

11

2; The total welfare violates m a x i m i n , equality, and

20

15

the numbers c r i t e r i o n . This case simply expands o n the d i s t r i b u -

30

15

Scenario

The l i m i t s o f S y s t e m a t i c Justice

Strusture

27

40

20

so clearly served along w i t h a central element of d i s t r i b u t i o n , or

50

30

when d i s t r i b u t i v e interests are so clearly served along w i t h a cen-

60

30

tral element of the general welfare, the result is very d i f f i c u l t to

70

LOO

argue against. Let us label these four tests in the order of our four

i n the move f r o m A to B, the total is lowered f r o m 2 8 0 to 2 2 1 , five out of seven strata are worsened, and inequality is i n creased. O n l y a fanatical advocate of m a x i m i n w o u l d s u p p o r t such changes because of the small increase of the m i n i m u m share ( f r o m 10 to 11). 4: The numbers c r i t e r i o n violates the total, m a x i m i n ,

Scenario

and equality. Serving the m a j o r i t y here distributes less in t o t a l , less equally, to the d e t r i m e n t of the least favored. T h i s case maybe t h o u g h t of as a tyranny of the m a j o r i t y that violates b o t h u t i l i tarian and distributive justice considerations at the same t i m e : A

B

10

0

20

5

scenarios; Test I: Prefer alternatives prescribed simultaneously by m a x i m i n , the t o t a l , and the numbers c r i t e r i o n . In other w o r d s , prefer more in total when it helps most people, including the least well off. Test 2: Prefer alternatives prescribed simultaneously by maxi m i n , equality, and the numbers c r i t e r i o n . I n other w o r d s , prefer equality w h e n it is to most people's advantage, including the least favored. 'lest 3: Prefer alternatives prescribed simultaneously by the total, equality, and the numbers criterion. In other w o r d s , prefer alternatives that distribute more in total, more equally to the advantage of most people (or strata). Prefer alternatives prescribed simultaneously by the

Test 4:

t o t a l , m a x i m i n , and equality. I n other w o r d s , prefer alternatives

30

5

40

45

that distribute more i n t o t a l , more equally, when it is to the ad-

50

55

vantage of the least favored.

60

65

W h e n viewed i n i s o l a t i o n , each of these tests seems o v e r w h e l m -

95

ingly c o m p e l l i n g . H o w e v e r , if they are taken together as consti-

70

t u t i n g necessary c o n d i t i o n s for an adequate principle of d i s t r i b u -

I he move to B serves the most advantaged four strata, but i n a

tive justice, then no adequate principle of distributive justice can

way that increases inequality (the mean of the differences f r o m the

avoid v i o l a t i n g transitivity. A simple illustration demonstrates this

mean increases f r o m 17.14 to about 3 0 ) , lowers the total ( f r o m

result. I n the table on the f o l l o w i n g page, test 1 w o u l d force us

2 8 0 to 2 7 0 ) , and devastates the m i n i m u m ( f r o m 10 to 0).

to choose B over A , test 2 w o u l d force us to choose C over B,

Each of these four scenarios can be thought of as a m i n i m u m

test 3 w o u l d force tis to choose L) over C, test 4 w o u l d force us to

test w h i c h the other criteria, taken in isolation, fail. If 1 am cor-

choose

rect that these basic criteria should be f o l l o w e d when three agree,

back to A .

over D , but then test I w o u l d lead us f r o m E i n a cycle

then we have four separate m i n i m u m tests for any principle of dis-

The move f r o m A to B is required by test 1 , because the t o t a l is

t r i b u t i v e justice. The power of each test is that it combines b o t h

increased f r o m 250 to 2 7 0 , the m i n i m u m is increased f r o m 10 to

of the members of either the aggregative or distributive family

1 1, and three of the five strata are better off. The move f r o m B to C

w i t h a member of the rival family. W h e n aggregative interests are

is required by test 2 because the m i n i m u m is increased f r o m 11

r i

j

Use U S J H S ©I S y s t e a a s f k Jasiise

M

A

B

C

D

F.

10 30 50

1 I

12

9

30 50 80 100

31

S 42

70 90

51 52 53

52

54 55

picture of the relations between idea! theory and public p o l i c y . It 1:

undermines the n o t i o n of a unidirectional approach to the ideal, where it is b o t h possible and desirable for each state of affairs to

50 50

be " m o r e j u s t " than the last. Such a ranking may no longer be possible because " m o r e j u s t " is no longer a transitive r e l a t i o n . This

51

new picture is the one i have termed "ideals w i t h o u t an i d e a l " con-

52

flicting principles, without

——

II

29

Assignment

a single unified vision to be gradually

approached.'' Each element of mora! conflict, if taken seriously,

to 12, equality is increased (the mean o i the differences f r o m the

w o u l d lead public policy in a quite different d i r e c t i o n . T h i s may

mean is lowered f r o m 28.24 to 14.64), and three of the five strata

force an i n t u i t i o n i s t i c balancing of particular cases to take policy,

are better off. The move f r o m C to D is required by test 3 because

over time, in a cycle. Because progress in one d i r e c t i o n may force

the total increases f r o m 199 to 2 1 1 , equality increases (the mean

us to retrace our steps along another valued dimension, patterns

of the differences f r o m the mean decreases f r o m 14.64 to 13.7),

of m o r a l conflict can eventually take us back to where we started.

and four of the five strata are made better off. The move f r o m D

[f we do justice to the true complexities of the p u r e - d i s t r i b u t i o n

to K is required by test 4 because the total increases f r o m 2 1 1 to

p r o b l e m , we must take account of all four of the basic criteria I

2 1 2 , the m i n i m u m increases f r o m 8 to 9, and equality increases

have proposed. But once we take this step, it seems difficult not to

(the mean of the differences f r o m the mean decreases f r o m

accept the four m i n i m u m tests. Either one or more of these tests

13.7

must be abandoned, or the n o t i o n that " m o r e j u s t " is necessarily

to 13.36). T h e cycle is completed w i t h the move f r o m E back to A . T h i s

a transitive relation must be. O n substantive grounds, the former

w o u l d be required by test 1 because the m i n i m u m increases f r o m 9

o p t i o n seems clearly indefensible, for it w o u l d expose us to con-

to 10, the total increases f r o m 212 to 250, and three of the five

d o n i n g one or more of o u r four h o r r o r stories as an e m b o d i m e n t

strata are clearly made better off. Hence, if an adequate p r i n c i p l e

oi justice. T h e alternative, w h i c h I accept, is that there are crucial

of d i s t r i b u t i v e justice must pass our four tests, such a p r i n c i p l e ,

impediments to any systematic theorv of justice,

however it is f o r m u l a t e d , must violate t r a n s i t i v i t y . ' 1

W h y should this be disturbing? Recent theories of justice have given us a picture of ideal theory whose task is to offer a systematic s o l u t i o n that holds w i t h o u t exception ( w h i c h solves the p r i o r i t y p r o b l e m in Rawls's language), and w h i c h we are to attempt,

Conflicting

of Equal

Opportunity

Visions

Regardless of h o w we handle the problem of structure, we face

perhaps o n l y asymptotically, to approach so far as circumstances

a separate set of issues in the problem of assignment: who

p e r m i t . We are given a unified and coherent picture of an ideal

what position

s o l u t i o n , i n w h i c h all the elements of m o r a l conflict have been p u t

be affected as decisively by assignment as by structure. N o viable

gets

in the structure. The life histories of individuals can

in their appropriate p r i o r i t y relations. The task of public policy is

theory of d i s t r i b u t i v e justice could a f f o r d to ignore the issue of

to get us as close as possible, even if the best we can possibly d o

assignment. Imagine one that d i d so. Then imagine that it ranked

is an a p p r o x i m a t i o n .

some sequence of situations A, B, C, D as successive improvements

T h e v i o l a t i o n of transitivity, however, supports a quite different

I

1.5 Assignment;

in terms of structure (as judged, for example, by the percentage of

30

the stated value held by each tenth of the society), i t no criteria are offered for assignment, but only for structure, then the sequence A , B, C, D c o u l d , in theory, be compatible w i t h any objectionable set o f l i m i t a t i o n s in terms of assignment. We m i g h t , for example, imagine the i n t r o d u c t i o n of a caste system, or of an underclass, or of an apartheid system of racial segregation. In principle, n o t h i n g prevents objectionable forms of assignment f r o m coexisting w i t h an i m p r o v e d structure—say, greater equality in income d i s t r i b u t i o n , greater totals, or whatever your favorite structural principle may be.

1

Suppose we are c o m m i t t e d to the proposition that the sequence of situations A , B, C, D represents consistent improvement o n s t r u c t u r a l grounds. T h e n let us imagine that we also have a sequence of structurally identical situations A ' , B', C , D ' that i n volve the i n t r o d u c t i o n of a caste system. The second g r o u p of situations is structurally

identical in that the payoffs to positions

under A ' , B', C , D ' are precisely the same as under A , B, C, D . If we have no criteria for assignment, then the structural criteria that w o u l d c o m m i t us to the p r o p o s i t i o n that A, B, C, D is an i m p r o v e m e n t w o u l d equally c o m m i t us to the proposition that A ' , IV, C , D ' must be an improvement. But w i t h i n liberal theory, it is h a r d to imagine that, whatever the structural improvements, they w o u l d insulate the overall result i n the second sequence f r o m decisive objections. The point of such examples is that no defensible, substantive theory of justice can afford to ignore the assignment p r o b l e m . Otherwise, such theories are vulnerable to representing as justice the i n t r o d u c t i o n of apartheid, the creation of a caste system, or the creation of a permanent underclass. In order to deal w i t h the assignment p r o b l e m , we need a viable theory of equal o p p o r t u n i t y . We need some fair system for 2

31

Assignment

The L i m i t s csi S y s t e m a t i c Justice

ration-

ing the chance to be unequal whenever there are going to be inequalities. O f course, if we had perfect equality of outcomes, then there w o u l d be little need to develop a theory of assignment. B u t there are substantial inequalities i n every m o d e m developed society, capitalist or socialist. Furthermore, if a theory were to be

systematic, it w o u l d have to rank outcomes as they

approached

whatever ideal was posited. Even advocates of perfect equality of outcomes w o u l d have to evaluate many d i f f e r i n g degrees

of i n -

equality (in a d d i t i o n to the many other difficulties such advocates w o u l d face). However, the difficulty i n developing a viable theory of assignment is that the values that are implicated by the equal o p p o r t u nity p r o b l e m do not fit together into a unified picture of an ideal s o l u t i o n — e v e n under the best conditions that m i g h t realistically be imagined for a m o d e r n , large-scale society. The issue can be posed as a " t r i l e m m a , " a k i n d of dilemma w i t h three corners. A first principle at issue i n the trilcmrna is merit:

1

that is, that

there should be widespread procedural fairness i n the evaluation of qualifications for positions. By "qualifications," 1 mean criteria that are job-related i n that they fairly can be interpreted as i n d i cators of competence or m o t i v a t i o n for performance. Whether we are t a l k i n g about scholastic aptitude tests, civil service exams, or the evaluation of publications for academic tenure decisions, we are all f a m i l i a r w i t h the culture of meritocracy. It is deeply embedded i n the rationales and practices of most of our institutions. But m e r i t , by itself, is not enough. Arguments for this conclusion are dramatized by an example that I w i l l b o r r o w f r o m Bernard W i l l i a m s . Imagine a society dominated by a w a r r i o r class/ F r o m generation to generation, the children of the present 1

w a r r i o r s become the new w a r r i o r class and rule in t u r n . A t some p o i n t , critics achieve a major r e f o r m . " F r o m n o w o n , " they announce, "there shall be equal o p p o r t u n i t y , because we shall select the best w a r r i o r s t h r o u g h a suitable c o m p e t i t i o n . " They then design an elaborate w a r r i o r - O l y m p i c s that selects the most competent w a r r i o r s . The c o m p e t i t i o n is held, but it makes v i r t u a l l y no difference to the outcome. The competition is w o n , o v e r w h e l m ingly or perhaps entirely, by the children of the present w a r r i o r s . A t first, to make it simple, let us imagine that the causal mechanism is quite obvious. T h e children of the present w a r r i o r class are both w e l l trained and well nourished. The rest of the p o p u l a t i o n ,

3§

The

UmiH o f

Sysfemssfis JusHs©

33

Assignment

wc m i g h t imagine, is on the verge of starvation. This fact turns the

Table 2. T h e T r i i e m m a of Equal O p p o r t u n i t y

equal o p p o r t u n i t y c o m p e t i t i o n into a series of wrestling and boxi n g matches between three-hundred-pound sumo wrestlers and

Option i

Option 2

Option i

n i n e t y - p o u n d weaklings. Clearly, such a c o m p e t i t i o n w o u l d not Merit

adequately realize equal o p p o r t u n i t y . N o t e , however, that its re-

4

('A[u;il life chances

sults w o u l d be supported by the principle of merit. The sumo

v

!

L i b e r t y in f a m i l y

wrestlers, we can assume, really are better w a r r i o r s than the weak-

"

'

~

;

lings. They are better warriors because they have had a lifetime of favorable conditions to develop the desired characteristics,

while

uvely w e l l in meritocratic c o m p e t i t i o n . The principle of m e r i t then

their rivals have had a lifetime of grossly unfavorable conditions

becomes a mechanism for generating unequal life chances.

to prepare for the same c o m p e t i t i o n .

It is w o r t h m e n t i o n i n g that in real life we do not fully realize

Real equal o p p o r t u n i t y , i t m i g h t be argued, must get at those

any of these principles. But we attempt to approach each of them

c o n d i t i o n s , for they determine the real terms of c o m p e t i t i o n . T h e

and, to one degree or another, we are successful (even t h o u g h

d i f f i c u l t y , of course, is that those conditions are protected by the

each p r i n c i p l e m i g h t take public policy i n a different d i r e c t i o n ) .

l i b e r t y to confer benefits w i t h i n the private sphere of family rela-

The p o i n t is that these criteria do not combine to make a uni-

tions.

fied and coherent scenario for the appropriate relations between

A more ambitious account of equal o p p o r t u n i t y w o u l d add to

liberty and equality, even under the best conditions that m i g h t

m e r i t the second requirement that there should be equality of life chances.

realistically be imagined. Consider the three options p i c t u r e d in

By this 1 mean that we should not be able to predict the

table 2. O p t i o n I is exemplified clearly by the w a r r i o r society. L i b -

eventual places in society of new-born infants about w h o m we

erty w i t h i n the family (the liberty to confer benefits) protects the

k n o w certain a r b i t r a r y native characteristics such as family back-

process whereby advantaged families differentially benefit then-

g r o u n d , race, sex, religion, and ethnicity. This c r i t e r i o n captures

children i n the developmental competition so that, as a statistical

w h a t was objectionable about the w a r r i o r society.' We could (but

matter, those c h i l d r e n w i l l achieve unequal life chances. Suppose

should n o t be able to) predict the winners and losers in the c o m -

we attempted to achieve b o t h m e r i t and equal life chances. I hen,

p e t i t i o n merely by k n o w i n g the class into w h i c h they were b o r n .

as p i c t u r e d in o p t i o n 2, we w o u l d have to somehow insulate chil-

O f course, this principle is widely violated in our o w n society,

dren f r o m the advantages their parents w o u l d wish to confer upon

as various sociological studies demonstrate, If we k n o w father's

t h e m . Perhaps some system of collectivized child rearing w o u l d

income o r education, we can make g o o d statistical predictions of

do the j o b . O r perhaps a school system could be designed that

the life chances among any cohort of n e w - b o r n infants/'

an^F*^mw^

w o u l d even out advantages and disadvantages f r o m class back-

I he causal mechanism operating here is, to a large extent,

g r o u n d and block the exit options of private schools, t u t o r i n g in

simply a more discreet version of w h a t was blatant in the w a r r i o r

the home, and so o n . Whatever the precise details, any such sce-

society example. Advantaged families differentially influence the

nario w o u l d require a significant sacrifice in liberty w i t h i n the

development of qualifications, talents, motivations, and so f o r t h

family. A t h i r d possibility w o u l d be to preserve l i b e r t y w i t h i n the

in their c h i l d r e n compared to less advantaged families. Those

family, but to attempt to realize equal life chances independently

favorable causal conditions prepare such children to do compara-

of the principle of m e r i t . This t h i r d o p t i o n might be termed the

7

i

m

n

n

34

3S

tJeracKracy a n d P r o g r e s s

H i e l i m i t s of S y s t e m a t i c Justice

"reverse d i s c r i m i n a t i o n " scenario because it w o u l d require that

the best conditions that m i g h t realistically be imagined. If we are

people be assigned to positions according to some pattern thai tie-

left w i t h principles in intractable conflict, even under favorable

parted systematically f r o m merit. One strategy w o u l d be simplv

conditions, then we do not have the k i n d of ideal s o l u t i o n — d e -

disadvantaged

fined w i t h o u t m o r a l c o n f l i c t — a s p i r e d to by systematic theory. We

backgrounds. A n alternative version of this scenario w o u l d assign

do not have a s o l u t i o n to the p r i o r i t y p r o b l e m . Instead, we have

all positions randomly, perhaps t h r o u g h a job lottery. Regardless

"ideals w i t h o u t an i d e a l . "

to hire less-qualified people f r o m comparatively

of the details, any version of o p t i o n 3 w o u l d require a significant sacrifice in merit {and i n the values p r o m o t e d by m e r i t o c r a c y — that is, procedural fairness and efficiency). Clearly, each of our three scenarios is a h o r r o r story. A c h i e v i n g

1.6 Democracy

and

Progress

F r o m the perspective of many theorists of justice,

democracy

any t w o of our principles precludes achieving the t h i r d — u n d e r

is a narrower topic than distributive justice, because many theo-

an}' realistic scenario of favorable conditions. i t is as if we had

ries w o u l d include the right to participate in political institutions

a three-cornered stool, but only t w o legs available to h o l d it u p .

as part of the more general d i s t r i b u t i o n of p r i m a r y goods or of

Even after we p r o p up any t w o sides, lack of the t h i r d leg is enough

fundamental rights and liberties in a just society.

8

Other theorists, however, w o u l d regard the c o n u n d r u m s of dis-

to undermine or destabilize the whole structure. One reasonable response to this pattern of conflict w o u l d be

t r i b u t i o n just discussed as p r o v i d i n g an argument for focusing o n

to trade off these three principles in particular cases, but to avoid

democratic procedures

any systematic attempt to fully realize any of them, given the cost

cannot settle substantive questions on the merits, we can at least

in c o m p e t i n g principles. Such a position w o u l d , of course, be an

determine procedures in w h i c h each person's conscientious views

example o f w h a t n o w is c o m m o n l y termed " i n t u i t i o n i s m " — t h e

get an appropriate hearing and an appropriate chance to influence

t r a d i n g o f f of competing principles in particular cases w i t h o u t any

a fair process of collective decision m a k i n g .

systematic s o l u t i o n that can be fully realized.

rather than on outcomes. Perhaps, if we

The d i f f i c u l t y is that the democratic t r a d i t i o n has

9

bequeathed

The i n t u i t i o n i s t position is unpopular and dissatisfying, in part,

to us a variety of fundamental values at stake in democratic pro-

because it is w i d e l y seen as vague in its prescriptions. H o w e v e r ,

cedures, a variety of ideal images of w h a t an appropriate collec-

such a charge is not entirely appropriate. Clearly, when there are

tive procedure m i g h t be. Because these ideal images cannot all be

strong gains to be made w i t h o u t a corresponding loss i n c o m -

simultaneously realized, they require some hard choices. 1 believe

peting p r i n c i p l e s ,

or significant losses w i t h o u t a corresponding

that figure I provides a useful way of p i c t u r i n g the dimensions

then there w i l l be a case for choice of a policy o p t i o n w i t h i n

along w h i c h this democratic debate tends to range. I have labeled

gain,

11

10

the i n t u i t i o n i s t f r a m e w o r k . There w i l l also be cases under other

the n o r t h - s o u t h dimension " M a d i s o n i a n " versus " m a j o r i t a r i a n . "

c o n d i t i o n s , but the t w o possibilities just mentioned are the most

By M a d i s o n i a n , I simply mean the degree to w h i c h the system

obvious ones.

includes impediments of one sort or another to popular m a j o r i -

W h e t h e r or not we adopt an i n t u i t i o n i s t response, the t r i l e m m a poses a significant obstacle to the ambitions of systematic t h e o r y .

12

!

ties. These impediments are usually justified, at least i n theory, by a desire to prevent t y r a n n y of the m a j o r i t y . Theoretically, the 2

Either we give up one of the pieces or we have to a d m i t that the

construction of impediments could go far beyond a n y t h i n g envi-

three components of the t r i l e m m a do not fit together, even under

sioned by M a d i s o n , so that, strictly speaking, he w o u l d not have

36

S e m m r a c y mû

The l i m i t s of S y s t e m a t i c Justice

advocated a perfectly " M a d i s o n i a n " system. T h e t e r m , however, provides a useful label for a basic m o t i v a t i o n underlying checks and balances, the t e r r i t o r i a l , federal, and bicameral character of many A m e r i c a n representative arrangements,

Progress

•itriire i - The Forms of Democracy Figu Madisonian

(Unanimous

(Avoiding tyranny^

direct democracy)

and the operation

of j u d i c i a l review and other institutions that serve as impediments to majorities. Alternatively, movement south along the same d i mension s i m p l y means that there are no effective impediments to p o p u l a r majorities, so that the tatter tend to get their way. As D a h l

-» A

Direct (participation)

noted i n a classic study, the American system is not very m a j o r i -

•B

t a r i a n . W i t h a system of " m i n o r i t i e s r u l e , " it is somewhere in the u p p e r - r i g h t - h a n d quadrant of figure I .

Indirect (competence)

1

T h e east-west dimension is familiar i n that it depicts the degree to w h i c h the system is indirect (representative) or direct (relying o n the p a r t i c i p a t i o n of members w i t h o u t the intermediary of representatives). For both the north-south and east-west dimensions,

Majoritanan

(Majoritarian

(popular control)

direct democracy)

many d i f f i c u l t judgments of degree w o u l d be required to make any precise comparisons. The main usefulness of the diagram is

absurdum. I n any case, any extreme version w o u l d fit the lower-

that i t captures a w i d e range of debate and a variety of c o n f l i c t i n g

left-hand corner of the diagram.

images w i t h i n a single space, so as to clarify h o w gains i n one

By contrast, R o b e r t Paul W o l f f ' s proposal for unanimous direct democracy fits the extreme upper-left position.' The u n a n i m i t y

value can be expected to require costs i n another.

1

T h e A m e r i c a n system w o u l d fit somewhere in the u p p e r - r i g h t -

rule gives everyone a veto, p r o v i d i n g the greatest possible protec-

hand q u a d r a n t of figure l . T o v a r y i n g degrees, most parliamentary

tion against tyranny of the m a j o r i t y f r o m new policies. I t w o u l d

systems w o u l d fit somewhere to the south of the American system.

not provide protection f r o m omissions, but that is not an issue we

D e p e n d i n g on the impediments they offered to popular m a j o r i -

need to pursue here. T h e placement of unanimous direct democ-

ties, they m i g h t fit i n the lower p o r t i o n of the northeast quadrant

racy in the upper-left corner and the placement of m a j o r i t a r i a n

or the upper p o r t i o n of the southeast one.

direct democracy in the lower-left corner illustrate h o w extreme

T h e western positions i n figure i are most usefully exemplified by certain extreme ideal images. Suppose, for example, t h a t

5

direct systems (both implementable through a t w o - w a y cable system) can be crucially different on our north-south d i m e n s i o n .

the W a r n e r - A m e x Qube system i n C a n t o n , O h i o , were used f o r

In a p p l y i n g the l i m i t e d liberalism model to my discussion of

actual government policy m a k i n g . Each resident could respond

justice, I argued that there were not only fundamental conflicts

immediately o n any question posed o n the t w o - w a y cable tele-

in our ideal images, but also fundamental conflicts in our notions

vision system. Constant referendums w o u l d thus be feasible o n

of moral progress intended to realize those ideal Images. We can

all public questions. Some w o u l d regard instantaneous,

majori-

get the same cycles i n a p p l y i n g democratic principles that we en-

tarian direct democracy as the perfect embodiment of a certain

countered in a p p l y i n g principles of justice. I do not have i n m i n d

i n f l u e n t i a l , ideal image. Others w o u l d regard i t as a reductio ad

here the cycles familiar to students of the classic v o t i n g paradox.

as

The l i m i t s of S y s t e m a t i c Justice

Cycles i n applying

particular democratic arrangements {say, ma-

popular c o n t r o l , movement west on participation as a value i n

j o r i t y rule} to policy or candidate choice can be distinguished f r o m

itself, movement n o r t h on the prevention of tyranny of the ma-

cycles i n the design of the democratic arrangement itself. H o w a

j o r i t y , and movement east o n the greater competence of repre-

cycle of democratic reforms m i g h t arise can be charted in figure I .

sentatives. D e p e n d i n g on w h i c h of these partial images is given

Imagine an American-style status quo somewhere in the upper-

greater emphasis, one can go r o u n d and r o u n d . Each d i r e c t i o n

r i g h t - h a n d quadrant, at p o i n t A . W i t h i n the family of arguments

for r e f o r m has plausibility because of its emphasis on a distinc-

Democracy a n d P r o g r e s s

39

loosely counted as democratic, a variety of reforms m i g h t be sup-

tive value. Elowever, the end result is the same kind of cycle t h a t

p o r t e d that w o u l d increase m a j o r i t y c o n t r o l over policy outcomes

we encountered w i t h d i s t r i b u t i v e justice. C o n f l i c t i n g values in the

( p r o p o r t i o n a l representation, r e f o r m of the electoral college, a less

identification of the ideal yield c o n f l i c t i n g directions for m o r a l

activist or independent judiciary, p o l i t i c a l control over the Fed-

progress—directions

eral Reserve, and so on). 1 am not advocating these reforms, but

where we started.

only p o i n t i n g out that were they to come about they could move the entire system south, f r o m A to B in the diagram.

w h i c h , step by step, can take us back to

Focusing on democracy rather than on the full range of issues in the theory of justice does not provide a basis for a v o i d i n g either

F r o m B we could imagine a second line of r e f o r m based on the

of the t w o basic problems we encountered earlier w i t h systematic

argument that real democracy requires far greater direct participa-

theory. We get neither a unified and coherent picture of the ideal

t i o n . Even w i t h i n the confines of a generally representative system,

nor an unambiguous route to m o r a l progress. Rather than a sys-

a number of reforms could be designed to move the system west-

tematic s o l u t i o n , the l i m i t e d liberalism model is a more plausible

w a r d to a p o i n t such as C. Referendum and recall provisions and

interpretation of the m o r a l complexities at stake in democratic

p r o l i f e r a t i o n of direct primaries, t o w n meetings, and other direct-

theory, just as it is in the theory of justice.

g o v e r n i n g arrangements w i t h i n specific jurisdictions are some of

Despite these l i m i t a t i o n s , the move to proceduralism as a re-

the reforms that could be employed to move the system in this

sponse to substantive difficulties has merit, as we w i l l see in part 3.

direction."

However, m o r e is required than a f o r m a l proceduralism based

F r o m p o i n t C, the greater power in the hands of an aroused

merely o n the character of democratic institutions. C o n s i d e r a t i o n

populace m i g h t well produce calls for p r o t e c t i o n against t y r a n n y

of procedures in the context of all the background conditions f o r

of the m a j o r i t y . Reinvigoration of the separation of powers, checks

l i b e r t y of p o l i t i c a l culture w i l l provide the basis for more a m b i -

and balances, and an activist judiciary determined to protect v a r i -

tious conclusions.

ous c o n s t i t u t i o n a l rights could move the system f r o m C to a p o i n t such as D , directly n o r t h . H o w e v e r , f r o m p o i n t D arguments about the greater c o m petence of representatives could be employed to undermine the earlier p r o l i f e r a t i o n of referendums, primaries, t o w n meetings, and other direct institutions, so as to return the system to our o r i g i n a l status q u o , point A . Each step in this scenario relies o n values that are deeply rooted w i t h i n the general family of democratic arguments/ M o v e m e n t south depends on the emphasis of

2.1 Criteria

for an Acceptable

Theory

If I am correct about the impediments to systematic versions of liberalism, where does that leave efforts to reconstruct

lib-

eral theory? Perhaps the aspirations of systematic theory demand too m u c h . It may be possible to define criteria for an acceptable theory, criteria w h i c h it is possible for some versions of liberal theory to f u l f i l l , but w h i c h are, nevertheless, far less ambitious than the requirements for systematic theory. I propose that we consider four criteria for an acceptable theory of the first principles of a liberal state. Such a theory, at the least, should provide e x p l i c i t grounds for satisfying these c r i t e r i a : 1. It should differentiate

among alternatives: i t should p r o -

vide an e x p l i c i t basis for d e t e r m i n i n g , if only incompletely, w h i c h states are better than other states, selecting preferred

one

or a few

most

states f r o m a plausible construction of the feasible set.

There are t w o crucial ways in w h i c h the theories considered here fail this c r i t e r i o n . They can be distinguished as: (a) vacuousness:

a theory can tail to differentiate by legitimat-

i n g all (or v i r t u a l l y all) the realistic possibilities; (b) blind alleys:

a theory can fail to differentiate by r u l i n g out

all the realistic possibilities.

S t r a t e g i e s ©f ^@fonsS7ticH@n

Criteria for o n a s s e m b l e Theory

Vacuous theories legitimate too m u c h ; blind-alley theories leg i t i m a t e too little. We w i l l find that some forms of consent theory

43

that the e x p l a n a t i o n for that obligation should apply to all those who

must c o m p l y w i t h the o b l i g a t i o n . Since part of the very

t u r n out to be vacuous. A n d if we assume, as 1 d o , that we live

notion of having a state is that the state apply its a u t h o r i t y univer-

in a w o r l d of states, one obvious way a theory couid produce

sal lv w i t h i n a given t e r r i t o r y , the individually b i n d i n g character

b l i n d alleys is t h r o u g h philosophical anarchism ( r u l i n g out all the

of its obligations must apply universally t h r o u g h o u t its t e r r i t o r y .

realistic possibilities).

The last p a r t of c r i t e r i o n 2, the particularity requirement, is

These are not the only possible ways of failing c r i t e r i o n 1 . A theory m i g h t , for example, offer no prescriptions

based on the n o t i o n that states have a claim on the loyalty of their

whatsoever.

citizens—a c l a i m that is not equally satisfied for those citizens by

H o w e v e r , these are the t w o ways that w i l l piay a roie in our argu-

any number of other states w i t h similar characteristics. O f course,

ment, so they are w o r t h distinguishing. Political philosophy fails to be prescriptive

those other states, if they are legitimate, may make similar claims if it telis us either

on their citizens. Just as I have obligations to my mother that 1 d o

that all the possibilities are absolutely unacceptable or that they

not have to total strangers, no matter h o w similar to my mother

are a l l equally acceptable. In failing either c r i t e r i o n 1(a) or 1(b),

those strangers may be, I have obligations to m y state, if it is a

p o l i t i c a l philosophy basically w o u l d be telling us that there was

legitimate state, that I do not have to any number of other states,

n o t h i n g to choose f r o m among the alternatives. Theories failing

no matter h o w similar to my state those states may be. If I am a

these criteria w o u l d h o l d that, even as a matter of aspiration, no

citizen of state X , i t is my state in the sense that 1 owe special o b l i -

distinctions need to be made and no guidance needs to be offered

gations to i t . I am assuming that if a theory of the first principles

about the most basic differences among p o l i t i c a l systems. If these

of a liberal state p u r p o r t s to explain the obligations of citizens to

m i n i m a l criteria cannot be satisfied, then i n an i m p o r t a n t sense

support i t , then the special character of those political obligations

the subject w o u l d have n o t h i n g to offer. I am assuming that an

needs to be accounted for.

adequate theory must, at the least, make some distinctions a m o n g states a n d , in that sense, be prescriptive. 2. A n acceptable theory should be individually

3. A n acceptable theory should solve or deal successfully w i t h the jurisdiction

binding.

For

problem.

By this I mean that the fundamental

basis a theory offers for its prescriptions should not p r o v i d e rival

each person subject to its a u t h o r i t y , the state should have an ex-

theories (offering rival prescriptions) w i t h grounds for c l a i m i n g

p l a n a t i o n for w h y that person is obligated to u p h o l d the regime.

jurisdiction over the result—grounds for c l a i m i n g that their pre-

' I his c r i t e r i o n can be b r o k e n d o w n into t w o parts:

scriptions have the same justification. Such j u r i s d i c t i o n problems

(a) T h e scope of the individually b i n d i n g requirement must be universal

for those subject to its a u t h o r i t y .

(b) T h e manner must be particular or satisfy the p a r t i c u l a r i t y requirement; that is, the citizen must not be equally o b l i gated to u p h o l d regimes other than his o w n as part of his political obligation.

1

Legitimate states h o l d that individuals are obligated to u p h o l d and obey their authority. The basic idea of c r i t e r i o n 2 is merely

undermine the sense i n w h i c h a theory can be taken to solve anyt h i n g . If, for example, rival courts claim j u r i s d i c t i o n over the same issue, the mere fact that each m i g h t give us a k i n d of i m p a r t i a l decision does not help us to resolve the issue until we find some way to resolve, in t u r n , the jurisdictional conflicts among the courts' claims to decide. We w i l l see that the rivalries among theoretical "decision procedures" pose a similar p r o b l e m , leaving us w i t h no court or decision procedure for choosing among them. 4. A n acceptable theory should satisfy criteria 1—3

without

44

S t r a t e g i e s ©}

f a l l i n g i n t o indoctrination

45

feionstresfiim

problems.

The manner of establishing

o b l i g a t i o n s and their acceptance should not be subject to a de-

poses a constructive strategy that does p u r p o r t to satisfy all of these criteria.

l e g i t i m a t i n g charge that people were brainwashed or coercively m o l d e d so as to support the regime in the required way. We need, of course, a more detailed, constructive account of w h a t w o u l d constitute n o t being brainwashed or coercively m o l d e d . This p r o b lem w i l l detain us later at some length. These are criteria w h i c h a libera! theory of the state must satisfy i f it is to offer authoritative prescriptions—at the levels of b o t h social and i n d i v i d u a l choice. The key social-choice question is: W h i c h states are better than others? The key individual-choice question is: W h y are individuals w i t h i n a state bound to supp o r t the answer to the social-choice question? To deal w i t h the social-choice question, an acceptable theory should differentiate a m o n g alternatives so as to satisfy c r i t e r i o n 1. To deal w i t h the i n d i v i d u a l - c h o i c e question, members should be bound to u p h o l d the social-choice response so as to satisfy c r i t e r i o n 2. To deal adequately w i t h both of these questions, a theory must also conf r o n t c r i t e r i o n 3 : i f a theory's implications are to be authoritative, they must avoid j u r i s d i c t i o n problems; that is, they must avoid p r o v i d i n g a fundamental basis for rival theories to provide i n c o m patible prescriptions. Theories bedeviled by j u r i s d i c t i o n problems u n d e r m i n e their o w n authority. Finally, i n d o c t r i n a t i o n problems must also be avoided i f the theory's prescriptions are to be aut h o r i t a t i v e ; if their apparent authoritativeness rests on collective b r a i n w a s h i n g , then they are subject to obvious, delegitimating arguments. Hence, a theory needs to satisfy all four of our criteria i f it is to provide an authoritative basis f o r choice at b o t h the social- and individual-choice levels. M o s t of part 2 w i l l juxtapose these criteria w i t h a scheme for classifying the basic strategies available to liberal theory tor establishing its first principles. I w i l l argue that all but one of the strategies can be expected to fail one or more of the criteria just proposed. T h i s argument w i l l set the stage for part 3, w h i c h p r o -

2.2 Beyond

Intuitionism

Our first c r i t e r i o n challenges us to decide whether a theory can distinguish a m o n g the range of relevant alternatives, i t requires that an acceptable version of liberal theory provide an e x p l i c i t basis for d i s t i n g u i s h i n g the morally preferred p o l i t i c a l arrangement (or a l i m i t e d class of such arrangements) f r o m most of its serious rivals. By "serious r i v a l s " I mean p o l i t i c a l alternatives w i t h i n some plausible construction of the feasible set, and for w h i c h significant philosophical claims have been advanced. O f course, w h a t is meant by " l i b e r a l i s m " or " l i b e r a l t h e o r y " is itself a matter of considerable dispute. We can generally distinguish t w o approaches to this problem. One approach w o u l d classify normative theories or ideologies as " l i b e r a l " in terms of what they prescribe, w h i l e another approach w o u l d classify them in terms of how

they prescribe i t . The first approach relies o n

the substantive prescriptions resulting f r o m a theory, w h i l e the second relies on the kinds of arguments employed by a theory to support its substantive prescriptions, The first strategy is exemplified by M a u r i c e Cranston's q u i p : " A liberal, i suppose one could say, is a person w h o believes in liberty, as a nudist is a person w h o believes in n u d i t y . " As liberals 1

are those w h o believe in liberty, liberal theories, o n this view, are those w h i c h offer systematic justification or support for liberty. By contrast, the second strategy w o u l d identify as " l i b e r a l " those theories w h i c h employ a certain mode of argument. A n example is Ronald D w o r k i n ' s claim that "a certain conception of equality, w h i c h I shall call the liberal conception of equality, is the nerve of l i b e r a l i s m . " ' D w o r k i n means by equality a certain l i m i t a t i o n o n the arguments w h i c h it is appropriate for the state to employ in justifying its policies. Whatever their other differences, 5

Rawls's

46

Strategies s i g e í s n s t r u s f í r a

g-eyoriet I n t u i t i o n i s m

47

t h e o r y of justice, Aekerman's n o t i o n of " n e u t r a l d i a l o g u e , " and

for the trade-offs between fundamental principles such as l i b e r t y

the recent attempts to reconstruct utilitarianism all rely o n a f o u n -

and equality. If the trade-offs between all competing principles

d a t i o n a l conception of i m p a r t i a l i t y or equal consideration as a

can be fully captured by a series of clearly ranked indifference

strategy for d e r i v i n g the first principles of a liberal state;

curves, let us call the p o s i t i o n that results systematic i n t u i t i o n i s m .

1

6

We need not decide the question here whether liberalism is best

This position does not represent the absence of a theory p r o v i d -

defined in terms of its substantive conclusions or in terms of its

ing p r i o r i t y rules. Rather, it embodies a complex statement of a

modes of argument for those conclusions. The position 1 w i l l de-

single clear p r i o r i t y rule: Prefer alternatives o n the most highly-

velop can plausibly be classified as " l i b e r a l " on either account. O n

ranked indifference curve achievable.

the one hand, its centerpiece w i l l be an attempt to justify the p o l i t i -

moral considerations are adequately captured by the indifference-

cal liberties of t h o u g h t , belief, and association—prescriptions that

curve analysis, there is no indeterminacy about h o w to evaluate

have long been at the core of whatever substantive consensus l i b -

any alternatives that may present themselves. Systematic i n t u i t i o n -

Provided that all of the

eralism has achieved. O n the other hand, my argument for liberty-

ism of this k i n d is not really i n t u i t i o n i s m , precisely because it is

w i l l depend o n recognizably liberal methodological assumptions.

systematic. I t is simply the use of a distinctive device for stating a

It w i l l , in fact, be based on a claim about the conditions under

complex principle that is supposed to have clear p r i o r i t y over all

w h i c h certain forms of m o r a l evaluation w o u l d be possible i n a

competing considerations.

liberal state.

It is the unsystematic variety of i n t u i t i o n i s m — w h e r e the m o r a l

W h y do our criteria require an " e x p l i c i t " basis? By this I mean

c o m p l e x i t y of possible trade-offs has not been reduced to a series

that criteria must be offered spelling out the proposed p r i o r i t i e s .

of ranked indifference curves—that represents a basic challenge

Relying solely on " i n t u i t i o n i s m " is not enough. The intuitionist is

to the theoretical aspirations of liberal political philosophy. U n -

c o m m i t t e d to a plurality of principles w i t h o u t any clear weights

systematic i n t u i t i o n i s m leaves us w i t h o u t guidance. We are stuck

or p r i o r i t y rules and w i t h o u t any m e t h o d for resolving conflicts

w i t h incommensurable, c o n f l i c t i n g factors whose relations to one

a m o n g t h e m . The label " i n t u i t i o n i s t " indicates that a person has

another are regarded as a matter of unsettlable dispute. A t most

no further e x p l i c a t i o n of the trade-offs to w h i c h he is c o m m i t t e d

we may k n o w w h i c h factors to weigh. However, even the meta-

in p a r t i c u l a r cases. I n t u i t i o n i s m is, i n an i m p o r t a n t sense, the

phor of " w e i g h i n g , " standard though it is, is misleading. T h e

absence of a theory.

absence of any c o m m o n metric for comparing incommensurable

5

H o w e v e r , suppose there were a very decisive i n t u i t i o n i s t w h o

considerations is itself a central part of the p r o b l e m . ' I t is the

c o u l d always select his preferred alternative f r o m a list w i t h i n the

mysteriousness of i n t u i t i o n i s m , leaving each of us to c o n f r o n t con-

feasible set. W o u l d this ability to determine preferred alternatives

flicting ultimate principles w i t h o u t further guidance, that violates

satisfy o u r criteria? I t w o u l d still fall short because the basis f o r

the " e x p l i c i t n e s s " requirement of our criteria.

s e l e c t i o n — i f i t were t r u l y i n t u i t i o n i s t — w o u l d defy further ex-

Yet the m a i n thrust of m y argument thus far has been that

p l a n a t i o n . I n this connection, we should distinguish w h a t m i g h t

unsystematic i n t u i t i o n i s m is unavoidable. Liberal theory, i n par-

be called systematic

variety

ticular, must inevitably assign a p r i m a r y role to i n t u i t i o n i s m ; it is

that falls c r i t e r i o n 1 (see section 2.1 above). Some w r i t e r s , most

beyond any reasonable construction of its capacities to produce

n o t a b l y B r i a n Barry, have experimented w i t h indifference curves

a full-fledged systematic alternative.* Such a conclusion w i l l not

intuitionism

f r o m the unsystematic

48

S t r a t e g i e s tá

Beyorid InfytHsnism

Resmastrsstiwî

only be d i s a p p o i n t i n g to many, but it w i l l also appear to foreclose completely the prospects that any construction of liberalism w i l l satisfy our criteria for an acceptable theory. However, this pessimistic conclusion is mistaken. As we w i l l see in part .3, other strategies h o l d promise for satisfying our criteria despite all the negative and l i m i t i n g conclusions developed here. W h y should we be concerned w i t h these criteria? Why, for example, should we require an explicit basis for selecting a m o r a l l y preferred state f r o m the feasible set (criterion 1)? W i t h o u t passing even this m i n i m a l test, liberal theory seems to be n o t h i n g more than a bundle of conflicting principles o f f e r i n g us no definite d i r e c t i o n , even for our aspirations. As Bruce Ackerman has argued, a successful case for the morally preferred state w o u l d dispatch, at a stroke, the charge that liberalism, philosophically", is n o t h i n g more than "a p i t i f u l blob of s e l f - c o n t r a d i c t i o n . " " It is for this reason that his theory, along w i t h the other main attempts to revive liberal theory, adopts a version of this c r i t e r i o n as its m a i n order of business. If a theory's prescriptions are so easy to f u l f i l l that most states already satisfy t h e m , then it fails our first c r i t e r i o n because it is vacuous. O n the other hand, if its prescriptions are impossibly d i f f i c u l t to f u l f i l l , so that all the serious possibilities are ruled o u t , then it fails our first c r i t e r i o n by landing us in a b l i n d a l l e v — by l i m i t i n g its prescriptions to possibilities that fall outside the feasible set. W h a t we require is some basis for distinguishing the m o r a l l y preferred state f r o m most or all of the rival alternatives that deserve to be taken seriously. O f course, we can only consider the range of alternatives i n f o r m a l l y . There are always new possibilities to be imagined or invented, new objections to be weighed, new implications of f a m i l iar principles in new situations. Given these complexities, it seems q u i x o t i c to expect to narrow the range of possibilities to one preferred alternative. F u r t h e r m o r e , the alternatives for w h i c h serious philosophical

49

claims have been advanced w i l l vary f r o m one p e r i o d to another. There w i l l be similar v a r i a t i o n in our understanding of the range of feasible alternatives and of the probable collective and i n d i v i d u a l responses to various empirical conditions, I need to assume o n l y that the state of debate is robust:

that a w i d e variety of alterna-

tives is advanced w i t h sophistication f r o m a wide variety of m o r a l and ideological perspectives. These criteria are really a s h o r t - h a n d device for assessing w h a t one proposal or another contributes to the current state of theoretical debate.' They are merely a w a y 0

of f o r m u l a t i n g the p r o b l e m : W h a t does any given proposal contribute to the state of debate about the fundamental alternatives available to libera! theory? Our

question is: Can liberalism produce any definite conclu-

sions about its m o r a l p r i o r i t i e s , at least when favorable conditions are assumed? If these definite conclusions do not n a r r o w the alternatives to one, they should eliminate everything but a l i m i t e d subclass whose members are essentially equal in their realization of significant prescribed values. We should be able to characterize w h y and h o w the members of this subclass are equivalent and how they are, together, distinctive compared to the f u l l range of rival possibilities. W h a t are the g r o u n d rules for determining the feasible set of alternatives? I w i l l f o l l o w Rawls and assume the favorable conditions of w h a t he calls "ideal theory."

M

I w i l l assume g o o d - f a i t h

efforts at strict compliance w i t h the principles proposed, b o t h i n the present and i n the relevant recent past.

12

Furthermore, I w i l l

assume only "moderate scarcity" and not the extreme

scarcity

of resources that blights many countries today in the t h i r d (and fourth) w o r l d .

1 3

The first task for liberal theory is to prescribe a preferred solution under an o p t i m i s t i c scenario of conditions. Unresolvable dilemmas or t r o u b l i n g indeterminacies w o u l d not be surprising under situations of tragic conflict or of extreme scarcity. But acceptable versions of liberal theory should be able to differentiate

50

51

ï»elrHîd Thought gxjMmmests

the most preferred alternative (or a subclass of equivalents) under

Figure 2. Decision Procedures

favorable conditions w h e n they are insulated f r o m these c o m p l i -

2 3 Political

Thought

Situations

Motivations

cations..

Experiments

Actual

Hypotht

Brute

1

2

Refined

4

3

Recent liberal theory has been distinctive for its thought experiments: t r a n s p o r t i n g us to an imaginary situation or t r a n s f o r m i n g our m o t i v a t i o n so that we choose p o l i t i c a l principles under con-

Category 2 transforms the situation for choice but not the m o t i -

d i t i o n s i n w h i c h only the m o r a l l y relevant factors bear on the

v a t i o n . The state of nature i n Robert N o z i c k ' s Anarchy,

decision. T w o kinds of imaginary devices have been e m p l o y e d —

Utopia

changes i n the s i t u a t i o n of choice and changes in the m o t i v a t i o n

there should be a state at all to the "best anarchic s i t u a t i o n one

( w i t h i n w h i c h I include filtering requirements by w h i c h only cer-

reasonably c o u l d hope f o r . ' " The motivations of people i n this

tain m o t i v a t i o n s are selected, w h i l e the rest are prevented f r o m

state of nature are not altered; they must be given a realistic

bearing o n the decision). W h e n the m o t i v a t i o n for choosing p r i n -

construction. We are to assume that some w o u l d j o i n

1

State

and

is a g o o d example. We are to take the question whether 1

protec-

ciples has been altered or filtered i n the interests of i m p a r t i a l i t y , (

t i o n associations v o l u n t a r i l y ; others w o u l d choose to be indepen-

w i l l classify i t as " r e f i n e d " ; when people choose, or are imagined

dent. As we w i l t see later, a major problem facing N o z i c k ' s argu-

to choose, w i t h unaltered m o t i v a t i o n (as, realistically, we w o u l d

ment is whether his scenario for the m i n i m a l state is compatible

expect t h e m to do i n actual life), 1 w i l l classify those m o t i v a t i o n s

w i t h a realistic construction of people's preferences—whether,

as " b r u t e . " W h e n the situation for choosing principles is the one

particular, independents w o u l d be fully "compensated" i n being

in w h i c h those w h o must abide by the principles live together

forced to j o i n the state.

in

5

as an o n g o i n g enterprise, i w i l l classify it as an " a c t u a l - " choice

Category 3 transforms not only the situation, as i n category 2,

s i t u a t i o n . W h e n the situation for choice is an imaginary one, held

but also the m o t i v a t i o n s for choice in that situation. For example,

to be m o r a l l y relevant, but not the situation in w h i c h those w h o

in Rawls's o r i g i n a l p o s i t i o n , agents are to choose principles of

must abide by the principles must live together as an o n g o i n g

justice so as to m a x i m i z e their shares of p r i m a r y goods w i t h o u t

enterprise, 1 w i l l term it " h y p o t h e t i c a l . " These distinctions are

k n o w i n g w h o i n particular they w i l l t u r n out to be once the veil

represented i n figure 2.

of ignorance is l i f t e d . They are endowed w i t h an abstract prefer-

2

A n example of category i is offered by actual-consent theory.

ence for p r i m a r y goods regardless of the details of their actual life

A c c o r d i n g to this approach, if people consent in real life, they are

plans; they w i l l k n o w the latter only after the principles o f justice

obligated to u p h o l d the state; if enough (whatever that means)

have been chosen. I n Ackerman's spaceship dialogues, entrants

do actually consent, then the state is held to be legitimate and,

to a new w o r l d argue over the d i s t r i b u t i o n of " m a n n a " t h r o u g h a

somehow, everyone is obligated. M o t i v a t i o n and situation are as 3

filtering device for relevant arguments (the " n e u t r a l i t y " assump-

we find t h e m . N e i t h e r Is subjected to some t r a n s f o r m a t i o n in the

t i o n ) . The perfectly sympathetic spectator of the classical u t i l i -

name of i m p a r t i a l i t y or moral relevance.

tarians has b o t h an imaginary vantage p o i n t (omniscience) and a

6

52

S3

The Q u e s t f o r Consent

Strategies of ^e^onstructioii

postulated m o t i v a t i o n (he reproduces in himself every pain and

2.4 and 2.5. The difficulties in category 3, the main focus of recent

pleasure in the w o r l d and, hence, w i l l prefer states of the w o r l d

theoretical activity in liberalism, w i l l be our subject in sections

that m a x i m i z e the net balance o f pleasure over pain).

2.6 and 2.7. Last, the o p p o r t u n i t y represented by category 4 w i l l

O f the possibilities presented in figure 2, the basic difficulty

be our subject i n part 3.

w i t h the t o p - r o w categories ( I and 2) is that they are subject to i n d o c t r i n a t i o n problems, while the basic difficulty w i t h the right-

2.4 Category

c o l u m n categories (2 and 3) is that they are subject to j u r i s d i c t i o n

1: The Quest for

Consent

problems. The only possibility offering a prospect for avoiding

In the simplest of our four categories (box I i n figure 2), we are

b o t h is category 4 (the l e f t - b o t t o m quadrant). M y proposal is an

dealing w i t h brute preferences and an actual, rather than a hypo-

instance of that approach.

thetical, s i t u a t i o n . M y basic c l a i m about the " b r u t e " categories

A similar p o i n t can be made about our other criteria. Consider

(whether actual as in box 1 or hypothetical as in box 2) w i l l be that

the varieties of actual-consent theory that fit in category 1, T h e

they are rendered vulnerable to i n d o c t r i n a t i o n problems by their

p r o b l e m w i t h universal express-consent w i l l t u r n out to be that

lack of a refinement mechanism for purging motivations of bias.

it violates c r i t e r i o n 1(b) in section 2 . 1 . As W o l f f shows, to re-

Their v u l n e r a b i l i t y takes the f o r m of a dilemma: n o t h i n g in the

q u i r e that everyone expressly agree to the state is to require the

strategy rules out extreme efforts at i n d o c t r i n a t i o n , but w i t h o u t

b l i n d alley of philosophical anarchism. Alternatively, the p r o b l e m

such i n d o c t r i n a t i o n , the strategy cannot plausibly be interpreted

w i t h universal tacit consent w i l l t u r n out to be that it violates

as leading to determinate results that satisfy our other criteria, in

c r i t e r i o n 1(a). In order to get everyone committed to support-

particular, criteria I and 2 — t h e requirements that our theory be

ing the state, the criteria for consent are loosened to the p o i n t

nonvacuous, that it avoid b l i n d alleys, and that it produce obliga-

that v i r t u a l l y any state can c l a i m universal consent. Such an ap-

tions that are i n d i v i d u a l l y b i n d i n g . Together, these criteria require

proach produces vacuous results by legitimating v i r t u a l l y every-

some differentiated solutions and bind us to them.

t h i n g . F u r t h e r m o r e , the problem w i t h nonuniversal tacit consent

The basic p r o b l e m w i t h category 1 is that it is vulnerable,

w i l l t u r n out to be that it violates c r i t e r i o n 2(a). W i t h i n the con-

genericaliy, to i n d o c t r i n a t i o n problems. Furthermore, each ver-

fines of actual-consent theory, those w h o d o n ' t consent have no

sion of category i w i l l fail one aspect or another of our first t w o

reason to believe themselves obligated to uphold the law. T h e

criteria.

i n d i v i d u a l l y - b i n d i n g criterion is not satisfied because the obligat i o n is not universal. By contrast, the p r o b l e m w i t h

hypothetical

Recall that all four categories concern decision situations (real or imagined) for j u s t i f y i n g a state, either by choosing the state (or

contract theories w i l l t u r n out to be that w h i l e they may satisfy c r i -

its basic character) e x p l i c i t l y or by choosing the principles that

teria I and 2, they violate criterion 3. They are inherently subject

justify i t . For theories i n each of our four categories, it is i m p o r -

to j u r i s d i c t i o n a l challenge.

tant to ask whether the choice i n question must be unanimous,

But i n h i n t i n g at h o w some main strategies violate one or another o f our criteria, we are j u m p i n g ahead of ourselves.

Let

us t u r n to each category in greater detail, The rest of this b o o k

and w h a t k i n d of agreement or consent is required of each participant (whether or not the n o t i o n of agreement is interpreted strictly, an issue I w i l l attempt to refine further b e l o w ) .

is largely organized around the possibilities presented in figure 2.

W i t h these distinctions i n m i n d , my basic point about cate-

1! he difficulties in categories I and 2 w i l l be our subject in sections

gory 1 theories w i l l be that they are, as a general matter, subject

54

S t r a t e g i e s ©f K e t s n s f i m t i M

Figure 3. Options in Category I

all issues of public decision: "Since by the rule of u n a n i m i t y a

CATEGORY 1 THKORIES (subject to indoctrination problems violating criterion 4)

Normnamnious (violates criterion 2)

55

The Quest f o r Consent

single negative vote defeats any m o t i o n , the slightest disagreement over significant questions w i l l b r i n g the operations of the society

A

to a halt. It w i l l cease to f u n c t i o n as a political c o m m u n i t y and fall

Unanimous J \ Loose (violates Strict (violates criterion 1 fa|) criterion l [ b j )

legitimacy; a de facto government may of course emerge and take

into a c o n d i t i o n of anarchy (or at least into a c o n d i t i o n of n o n control)."

2

Given a realistic construction of the variety of preferences i n a m o d e r n large-scale society, it is implausible to suppose that unanimous voluntary agreement w i l l maintain itself. Once it breaks

to i n d o c t r i n a t i o n problems. I n a d d i t i o n , they are vulnerable to

d o w n , the prescription that results—namely,

v i o l a t i o n s o f one or another of our other criteria, as shown i n

relevant co our p r o b l e m of differentiating among states. For this

figure

J.

anarchism—is

ir-

reason, the requirement for unanimous consent i n the strict sense

I heories fitting category 1 either require unanimous agreement or s u p p o r t , or they do not. If they do not, then they are vulner-

can be taken as a v i o l a t i o n of criterion 1(b), the no-blind-alleys requirement.

able to c r i t e r i o n 2 because they lose their individually b i n d i n g

O f course, we m i g h t imagine a coercive system of collective

character. If they do require unanimous agreement, then if that

brainwashing that produced near-perfect homogeneity of prefer-

agreement is loose, m y claim w i l l be that i t leads to violations

ences, perhaps o n the order approaching w h a t w o u l d be required

of c r i t e r i o n 1(a), by p r o d u c i n g vacuous results. It legitimates t o o m u c h to differentiate among states. O n the other hand, i f the n o t i o n of agreement required is strict, then i t leads to violations of c r i t e r i o n 1(b) by, i n effect, r u l i n g o u t all the possibilities and creating a b l i n d alley.

to support c o n t i n u i n g u n a n i m i t y in the large-scale nation-state. But such a system, even if it were successful, w o u l d not produce unanimous v o l u n t a r y agreement. It could realistically be m a i n tained only t h r o u g h systematic m a n i p u l a t i o n and coercion, issues to w h i c h we w i l l r e t u r n i n part 3. In any case, a choice situation

i w i l l attempt to illustrate these difficulties by briefly exam-

that requires coercive collective thought c o n t r o l to s u p p o r t its

i n i n g some particular theories e x e m p l i f y i n g each alternative. A

conclusions exemplifies the other h o r n of our d i l e m m a : its results

g o o d example of a theory r e q u i r i n g actual unanimous agreement

are delegitimated because they rest on i n d o c t r i n a t i o n , thereby-

in the strict sense is Robert Paul W o l f f ' s argument for a system

violating c r i t e r i o n 4.

o f " u n a n i m o u s direct democracy" where "every member of the society w i l l s freely every law w h i c h is actually passed." The resultis that "he is only confronted as a citizen w i t h laws to w h i c h he has consented."

1

H o w e v e r , as W o l f f rightly admits, this solution "requires the

Suppose, however, that the no-agreement p o i n t were interpreted not as the b r e a k d o w n or cessation of the legitimate state (as in the passage quoted above), but simply as the c o n t i n u a t i o n of the status quo combined w i t h nonpassage of whatever policy produced disagreement. This possibility brings into relief some

i m p o s i t i o n of impossibly restrictive conditions w h i c h make it ap-

i m p o r t a n t differences between

plicable only to a rather bizarre variety of actual situations." The

situations. We can plausibly interpret an appropriately designed

reason is that we must imagine c o n t i n u i n g perfect agreement o n

hypothetical situation as a one-time-only event w i t h m o r a l rele-

hypothetical- and actual-choice

56

57

The Quest foF Consent

Strategies of R e i o r s s t r y s f i e n

vancc f o r whatever p o p u l a t i o n the situation is invoked. AH of

earlier decisions, and the consequences of policy omissions

those w h o are b o r n or enter the society at whatever time can par-

not consequences to w h i c h they have consented.' T h e b r e a k d o w n

ticipate i n the very same thought experiment: they can all imagine

of unanimous consent confronts such a theory w i t h violations of

themselves in Rawis's original p o s i t i o n , or in Ackerman's neu-

criterion 2. If I have not actually consented to such a law, h o w ,

are

tral dialogues, or they can all delegate the choice of principles to

w i t h i n the confines of this k i n d of actual consent theory, am 1

the same imaginary u t i l i t a r i a n spectator, There is no problem of

supposed to be b o u n d to u p h o l d it? W o l f f abandons this o p t i o n

past actual p a r t i c i p a t i o n not a p p l y i n g to new members ( i n c l u d -

because it is not t r u l y compatible w i t h i n d i v i d u a l autonomy. Be-

ing n e w l y b o r n ones) as compared to o l d ones; no one actually

cause his assumptions lead h i m to take strict unanimous choice

p a r t i c i p a t e d i n any of these imaginary scenarios, in any case.

seriously, he is led to anarchism and, hence, in our scheme, to

By contrast, actual-choice theories face the p r o b l e m that new

violations of c r i t e r i o n 1(b) (the blind-alley c r i t e r i o n ) .

members are b o r n , o l d ones die; new members arrive, o l d ones

The basic p o i n t is that if we interpret the u n a n i m i t y rule strictly,

leave. W h a t has unanimous support at one time may not have it

for an actual, o n g o i n g society rather than for a one-time-only

at another. Even if, somehow, the laws on the books were passed

hypothetical s i t u a t i o n , i t does not provide the basis for differen-

unanimously, there is no guarantee, as time goes o n , that each per-

tiating choices among nation-states.

son w i l l be " o n l y confronted as a citizen w i t h laws to w h i c h he has

conclude that the rule, w h e n taken seriously, implies anarchism.

consented." W h a t relevance does the unanimous consent of past

Alternatively, if unanimous agreement is given a looser interpre-

generations have to him? Ele is "subject to the w i l l of a n o t h e r "

tation, it is possible to escape anarchism and provide a basis for

just as m u c h as if he were an outvoted m i n o r i t y in a decision taken

morally acceptable states. The difficulty is that to get c o n t i n u -

in the present."'

ing unanimous agreement under realistic conditions, agreement

Rather, W o l f f is correct to

A related p o i n t is that policy omissions (failures to adopt new

or consent has to be defined so loosely that it provides no basis for

policies) can be just as salient and burdensome as policy commis-

differentiating conclusions. Rather, agreement defined so loosely

sions (the a d o p t i o n of new policies). There may be

unexpected

w o u l d legitimate a host of states indiscriminately. Relying on loose

emergencies, new issues, new requirements for action. The most

unanimous agreement w i l l lead, if taken seriously, to violations of

i m p o r t a n t issues of the moment may never have been previously

criterion '1(a), the nonvacuousness requirement.

decided, or even formulated as matters for public debate. The una-

The difficulties that lie d o w n this road are suggested by Locke's

n i m i t y rule, by g i v i n g everyone a veto, holds each of us hostage to

loosening of w h a t we have been calling strict agreement i n the

the w i l l of any other person w h o m i g h t block the required action.'

definition of tacit consent, as eventually developed i n the

1

As W o l f f makes clear, the special attraction of the u n a n i m i t y rule is that i t defines a system where "every member . . . w i l l s freely every law w h i c h is actually passed." As a result, he has " c o n s e n t e d " to every law w i t h w h i c h he is " c o n f r o n t e d . " H o w ever, once b o t h new issues and new members are taken into account, i t becomes implausible to claim that c o n t i n u i n g whatever policies were previously passed preserves unanimous s u p p o r t , at least for those policies. N e w generations were not party to those

Second

Treatise: The difficulty is, what ought to be look'ci upon as a tacit Consent. . . . And to this I say that every Man that hath any Possession or Enjoyment of any part of the Dominions of any Government doth thereby give his tacit Consent, and is as far forth obliged to Obedience to the laws of that Government, during such Enjoyment, as any one under it; whether this his Possession be of Land to him and his Heirs for ever, or a Lodging only for a Week; or whether it be barely travelling freely

m

S t r a t e g i e s of

Seconstrtístien

59

H i e Q » e s î for Consent

on the Highway; and, in Effect, it reaches as far as the very beans?; of anyone within the Territories of that Government/ 1

u n a n i m i t y i n a sense loose enough to legitimate some m o d e r n nation-states w o u l d legitimate too many to be useful for our purposes. W i t h i n the confines of unanimous-actual-choice theory, we

Once tacit consent is defined so broadly that receiving any bene-

are faced w i t h v i o l a t i n g either criterion 1(a) or c r i t e r i o n

fit—simply

using the king's highways, or even "the very being

in effect, the choice of l e g i t i m a t i n g too m u c h or of l e g i t i m a t i n g

of anyone w i t h i n the Territories of that Government"—-counts as

too little. One alternative, of course, w o u l d be to abandon the

consent, i t does become plausible to claim that the conditions for

u n a n i m i t y requirement entirely.

unanimous tacit consent can be continually fulfilled under real-

Eiowever, nonunanimous

1(b)—

versions of category 1 only seem to

istic conditions in a modern large-scale nation-state. So long as

encounter a d d i t i o n a l difficulties. Unanimous agreements, at least

someone has not explicitly rejected the state's l e g i t i m a c y — a n d

when undertaken v o l u n t a r i l y , appear to b i n d everyone w h o is

attempted to leave the country so as to relieve himself of all obliga-

party to them and, in that sense, provide a certain i m m u n i t y f r o m

tions to it—-he can be counted w i t h i n the f r a m e w o r k of tacit con-

further controversy. If acts of consent produce obligations in the

sent defined so loosely. As H a n n a Pitkin concludes in her critique

way that promises d o , then if everyone has consented, everyone is

of this d o c t r i n e of tacit consent, few states w o u l d be ruled out

obligated. We have at least some grounds for c o m m i t t i n g everyone

by this strategy: "Being w i t h i n the t e r r i t o r y of the w o r s t tyranny

to whatever policies and/or system was consented to—-regardless

in the w o r l d seems to constitute tacit consent to it and create an

of whatever else they m i g h t advocate.*

o b l i g a t i o n to obey i t . O n l y physical w i t h d r a w a l - — e m i g r a t i o n —

This basis for countering rival prescriptions seems to vanish

and the abandoning of all p r o p e r t y frees you f r o m that o b l i g a t i o n ;

once u n a n i m i t y breaks d o w n (or if it is never achieved). W h y

there is no such t h i n g as tacit dissent"

should / be obligated because you

The

(emphasis in o r i g i n a l ) .

7

consented, any more than I

basic difficulty is that w h e n agreement is interpreted

w o u l d be obligated because you promised? Even i f my v i e w is a

loosely, i t is plausible to include everyone in the state i n the

m i n o r i t y one, u n t i l we get some justification for s u b m i t t i n g the

agreement, but v i r t u a l l y no state is ruled o u t ; by contrast, w h e n

matter to m a j o r i t y rule (or to some other nonunanimous decision

agreement is interpreted strictly, it becomes implausible to include

rule), m y v i e w cannot be dispatched by c i t i n g the greater numbers

everyone i n the agreement, so v i r t u a l l y every state is ruled out (by

w h o support a rival view.'' The numerically predominant v i e w has

the requirement for u n a n i m i t y ) . Unanimous actual agreement is

often been m o r a l l y suspect and may well be in the f u t u r e .

far t o o d e m a n d i n g a c o n d i t i o n to provide the basis for conclusions

10

Consider w h a t happens to actual-consent theory once the i n -

among m o d e r n nation-states under realistic c o n d i -

evitability of nonconsent on the part of many is acknowledged

tions. A t the very least, realistic conditions w i l l require that there

—once, i n other w o r d s , the quest for u n a n i m i t y is abandoned.

be numerous complex questions affecting large numbers of people

Joseph Tussman's p o s i t i o n offers a good i l l u s t r a t i o n . He argues

w h o have c o n f l i c t i n g interests at stake, and c o n f l i c t i n g conscien-

that obligations to the state must derive f r o m the model of a

differentiating

tious o p i n i o n s about the result. Under such conditions, we cannot

" v o l u n t a r y o r g a n i z a t i o n " ; his argument builds o n the v i e w " t h a t

expect perfect u n a n i m i t y to m a i n t a i n itself v o l u n t a r i l y over time,

obligations are, or even must be, voluntarily assumed." H o w e v e r ,

inevitably, disagreements w i l l arise, b o t h about w h a t decisions

he is forced to c o n f r o n t the fact that

o u g h t to be made and about h o w people ought to make t h e m . To require c o n t i n u i n g u n a n i m i t y in the strict sense w o u l d effec-

any d e s c r i p t i o n o f a b o d y p o l i t i c , like the U n i t e d States, w o u l d have to

tively rule out the modern nation-state; to require c o n t i n u i n g

recognize that there are some, o r many, " c i t i z e n s " w h o c o u l d n o t be

60

S t r a t e g i e s of

l&eiotistrustion

?He Q u e s t f o r Consent

described as h a v i n g consented. There is no p o i n t to r e s o r t i n g to f i c t i o n

[engc i n c r i t e r i o n 2. If only some people consent, then it seems

to conceal this fact. It makes m o r e sense to speak o f the social c o m -

exceedingly problematical that those w h o do not consent w o u l d

pact as an ideal w h i c h is never completely realized. N o n - c o n s e n t i n g

be i n d i v i d u a l l y b o u n d to u p h o l d the result.

a d u l t citizens are, i n effect, like m i n o r s w h o are governed w i t h o u t t h e i r o w n consent. T h e p e r i o d o f tutelage and dependence is u n d u l y p r o l o n g e d . A n d this . . . is a failure o f p o l i t i c a l e d u c a t i o n .

!i

Tussman has simply attempted to w o r k t h r o u g h the i m p l i c a tions of the primacy that "consent of the g o v e r n e d "

It is arguable that actual-consent theory encounters these difficulties

because it is being employed to solve too m u c h . C o n -

sent is deeply r o o t e d in Western, especially A m e r i c a n , p o l i t i c a l ideology, i n the Declaration of Independence we are told about

(conceived

"Governments . . . d e r i v i n g their just powers f r o m the consent of

as actual, v o l u n t a r y agreement) has i n American p o l i t i c a l culture.

the governed." By being employed to solve " t o o m u c h , " I mean

B u t the result is an incoherent theory of political o b l i g a t i o n be-

that consent theory is being employed to address t w o separate

cause of w h a t he calls the " s h r i n k a g e " of the body p o l i t i c to a

questions simultaneously. W h i c h states are more legitimate or

subgroup of the politically self- conscious. Their agreement cannot

morally appropriate than others? and W h y am 1 (or any other

obligate the others any more than my promise could obligate y o u .

member) obligated to obey or u p h o l d the authority of my state?

If there were some magic percentage beyond w h i c h support

In other w o r d s , consent theory is c o m m o n l y applied (a) to the

was w i d e l y , and justifiably, acknowledged to be b i n d i n g on every-

social-choice p r o b l e m of evaluating and c o m p a r i n g states and

one, then the shrinkage problem w o u l d not undermine nonunani-

(b) to the individual-choice problem of establishing one's linkage

mous actual agreements as a fundamental basis for p o l i t i c a l p r i n -

to the state t h r o u g h p o l i t i c a l o b l i g a t i o n . There is, as we w i l l see

ciples. But there Is no such magic percentage. It is certainly not

in part 3, a natural connection between these t w o questions. But

50 percent plus 1 ( m a j o r i t y rule). M a j o r i t i e s , like other w i n n i n g

actual-consent theory provides too slim a basis for resolving b o t h

coalitions, can sanction or support unjustified and drastic actions

simultaneously.

whose consequences are felt by losing coalitions. F r o m M a d i s o n ,

The difficulty is that if consent is to serve as a self -sufficient

Tocqueville, and M i l l to the present, avoiding the possibilities f o r

response to the individual-choice problem of political o b l i g a t i o n ,

t y r a n n y of the m a j o r i t y has been one of the central tasks of m o d -

it is rendered v i r t u a l l y useless as a self-sufficient response to the

ern

democratic theory. - Increasing the percentage required for

social-choice p r o b l e m of comparing states. The reason for this

a p p r o v a l does not solve the p r o b l e m ; it only makes passage of new

c o n u n d r u m is, basically, that if actual consent is to provide a

policies o r legislation more d i f f i c u l t - — w h i c h means more people

basis for everyone's p o l i t i c a l obligations to the state, then every-

may be frustrated by having to experience the consequences of an

one must have consented. Something approaching unanimous or

u n w a n t e d status q u o .

1

O f course, once a system has been estab-

universal consent is required. But if unanimous consent is given a

lished, those w h o are already bound to it for whatever reason

strict i n t e r p r e t a t i o n , then, as W o l f f illustrates, v i r t u a l l y all states

may then find that they are also bound to u p h o l d m a j o r i t a r i a n -

are ruled out. O n the other hand, if unanimous consent is given

approved results f r o m w h i c h they dissent. But we are p r o b i n g

a loose i n t e r p r e t a t i o n — l o o s e enough to apply to everyone, say,

arguments about the fundamental issue of w h a t binds them to the

w i t h i n the t e r r i t o r y (so as to get them all obligated to obey the

system i n the first place. W h a t these points amount t o , at bot-

state)-—then meaningful differentiations among states are lost (as

t o m , is that nonunanimous-actual-consent

theory, in a v o i d i n g the

we saw w i t h Locke's loosening of tacit consent), i t is always, of

problems w i t h criteria 1(a) and 1(b), faces a fundamental chai-

course, possible to abandon the u n a n i m i t y requirement, but that

u

62

63

t h e Quest for Consent

Strategies of S e i o n s t u j i t i e n

w o u l d produce an incoherent theory of political o b l i g a t i o n (one

t 0

it w h i l e , at the same time, a d m i t t i n g that not everyone had

in w h i c h 1 a m obligated because you consented). W h a t this shows

c0

is that the aspiration overreaches to employ actual-consent theory

leading to violations of c r i t e r i o n 2.

simultaneously as the basis for b o t h the social choice-problem of

n s e n t e d , an incoherent account of political o b l i g a t i o n resulted, But perhaps the basis for mora! prescriptions in a given society

evaluating states and the individual-choice problem of his p o l i t i -

is not every individual's

cal o b l i g a t i o n . Actual-consent theory certainly may have a role,

standings of the society. W h i l e every single i n d i v i d u a l has not

but if cannot be employed to provide the sufficient conditions for

consented to those understandings, they are widely acknowledged

the s o l u t i o n of b o t h problems at the same t i m e .

14

By contrast, theories of hypothetical—as opposed to actual-—

consent but the collective, shared under-

and their status as shared conventions m i g h t arguably s u p p o r t their a p p l i c a t i o n to the society in question. In this way, some

consent may be employed for b o t h problems. They can, in a sense,

variation of nonunanimous-actual-consent

apply universally to everyone w i t h i n a t e r r i t o r y , w h i l e at the same

ployed for social-choice judgments about the legitimacy of the

t i m e y i e l d i n g differentiating conclusions. Rawis's theory of justice

state w i t h o u t also being required for individual-choice judgments

is a p r i m e example. It purports to provide distinctive, significant

of p o l i t i c a l o b l i g a t i o n . I n a way, this o p t i o n can be t h o u g h t of

conclusions and it ties those conclusions to a k i n d of c o n s e n t —

as an attempt to employ nonunanimous-consent

they are the conclusions we ourselves w o u l d supposedly reach, to

evaluation of the state, w h i l e relinquishing the previous a m b i t i o n

the extent that we were rational and to the extent that we judged

to provide a theory of p o l i t i c a l obligation as well (or at least one

the p r o b l e m under ideally fair conditions.

that relies o n the analogy between acts of consent and promises).

But Rawis's theory does not affect the conclusions just reached

M i c h a e l Walzer's argument in Spheres

theory m i g h t be em-

theory for the

of Justice

exemplifies

about actual-consent theory, i n Rawis's theory, universal consent

this strategy.

w i t h i n the t e r r i t o r y is achieved only t h r o u g h a scenario that de-

this k i n d , it can usefully illustrate the difficulties i n this general

parts f r o m the l i m i t s of realism. The purely imaginary character

a p p r o a c h — b r u t e actual-choice theories that are nonunanimous

of the scenario renders it vulnerable to j u r i s d i c t i o n problems f r o m

in their requirements.

r i v a l scenarios that also p u r p o r t to tell us w h a t we w o u l d , r a t i o -

qualitatively distinct "social goods" and that " i n t e r n a l " to our

nally, choose under fair or i m p a r t i a l c o n d i t i o n s — b u t w i t h slight

"shared u n d e r s t a n d i n g " of each good are criteria for its d i s t r i -

variations i n the notions of rationality or i m p a r t i a l i t y . As we w i l l

b u t i o n w i t h i n its o w n sphere. " T y r a n n y " occurs w h e n a given

see below, any differentiating conclusions that result can easily be

good is d i s t r i b u t e d for reasons irrelevant to those c r i t e r i a , t y p i -

evaded by r i v a l constructions of the hypothetical story. W h a t we

cally t h r o u g h c o m m a n d over other goods ( f r o m another sphere)

are t e r m i n g category 3 theories such as Rawis's have the merit

w h i c h are " d o m i n a n t , " such as capital. T h u s , medieval Christians

that they may satisfy criteria 1 and 2 but they are genericalty

condemned the sin of simony, for example, because "the mean-

vulnerable to c r i t e r i o n 3, j u r i s d i c t i o n problems.

ing of a particular social g o o d , ecclesiastical office, excluded its

R e t u r n i n g to category

1 and variations o n actual-consent

15

Because i t is the most sophisticated recent effort of

sale and p u r c h a s e . "

17

16

Walzer's central c l a i m is that there are

Similar objections apply to p r o s t i t u t i o n and

theory, the nonunanimous-choice strategies ran into trouble be-

b r i b e r y ; given certain "shared understandings" about h o w sexual

cause they employed consent as the basis for p o l i t i c a l o b l i g a t i o n as

gratification and p o l i t i c a l power are supposed to be d i s t r i b u t e d ,

well as for a theory of the legitimate state. Because they proposed

the i n t r u s i o n of money is a m o r a l l y irrelevant determinant, one

that we regard everyone w i t h i n the state's territory as obligated

that perverts those shared understandings.

S t r a t e g i e s o i ResBiistruitissn

64

The Quest f o r Consent

65

Walzcr believes that a distinctive theory of justice can be devel-

nels for p o l i t i c a l expression, and how to adjudicate disputes. We

oped f r o m the mere fact of shared understandings about the ap-

lack shared understandings of a methodological k i n d about h o w

p r o p r i a t e spheres of each social g o o d , combined w i t h the require-

to interpret and choose among whatever shared understandings

ment that these spheres be respected, "justice is relative

to social

may actually exist in our culture. Except where there is complete

simply

agreement, rival notions each w i l l have a f o o t h o l d . For the theory

Obviously, everything de-

to yield any determinate content, we w o u l d require criteria for

pends on the "shared understandings" about each g o o d and its

choosing a m o n g rival accounts of otir shared m o r a l notions. W i t h -

respective sphere in a given culture. Walzer's book is organized

out such c r i t e r i a , the theory is threatened w i t h silence i n the face

m e a n i n g s " a n d , indeed, " i n matters of m o r a l i t y , argument is the appeal to common

meanings."

18

a r o u n d his list of goods: membership, security and welfare, money and c o m m o d i t i e s , office, hard w o r k , free time, education, k i n s h i p and

love, d i v i n e grace, r e c o g n i t i o n , and political power. Is this

an exhaustive list? W o u l d we all interpret our shared understandings about the spheres of justice this way? Others have proposed quite different lists of the p r i m a r y social goods whose d i s t r i b u t i o n defines the p r o b l e m of justice. For the design of i n s t i t u t i o n s , Rawls's list reduces to liberty, equal o p p o r t u n i t y , and income and wealth.

! y

H a r o l d Lassweil, in a famous analysis, proposed power,

enlightenment, w e a l t h , well-being, s k i l l , affection, rectitude, and deference. '' 2

of serious m o r a l controversy. But such criteria cannot be developed w i t h o u t abandoning the reliance on relativism, on n o t h i n g more than the sheer fact of shared understandings. Once the possibility of a manipulated or indoctrinated consensus is acknowledged, any claims that this k i n d of theory c o u l d satisfy c r i t e r i o n 2 are e x p l o d e d . U n a n i m i t y about shared understandings is unrealistic and is not claimed by the theory. But then the issue arises: w h y should those w h o disagree be b o u n d by the consensus? If there were machinery in the theory to give us c o n f i dence about h o w the consensus was arrived at, then perhaps there could be some basis for resolving this issue. But such machinery

There are t w o m a i n difficulties w i t h this general strategy of

w o u l d , by d e f i n i t i o n , take us outside the confines of category 1

appealing to shared (but not unanimously shared) understand-

(the actual-brute category) because preferences w o u l d no longer

ings. T h e first is: h o w are we to decide between rival lists and

be merely brute. There is no such machinery in Walzer's theory,

rival understandings of their appropriate spheres? For Walzer, this

nor could there be w i t h o u t some radical change in its basic charac-

issue seems relatively s t r a i g h t f o r w a r d . It comes d o w n to a p r o b -

ter. But w i t h o u t such machinery, there are no grounds for b i n d i n g

lem o f social a n t h r o p o l o g y — a n investigation and i n t e r p r e t a t i o n

dissenters to a consensus that is open to delegitimating charges of

of shared understandings about social goods and their b o u n d -

m a n i p u l a t i o n . W h y should such dissenters defer to the consensus

aries in a particular culture. H e treats the whole issue of choosing

unless there are grounds for being confident in the greater r a t i o -

a m o n g rival notions in the same culture parenthetically: " ( W h e n

nality of its collective process? W i t h such grounds, we w o u l d have

people disagree about the meaning of social goods, w h e n under-

a different kmc! of t h e o r y .

standings are controversial, then justice requires that the society

basis for responding to c r i t e r i o n 2.

22

W i t h o u t such grounds, we have no

be f a i t h f u l to the disagreements, p r o v i d i n g institutional channels

W h a t Walzer's relativism does to his attack on t o t a l i t a r i a n i s m

for their expression, adjudicative mechanisms, and alternative dis-

reveals a second major difficulty w i t h the general strategy. W i t h i n

tributions.)"

this relativistic f r a m e w o r k , there can be no criteria, except shared

2 1

Yet there w i l l also be g o o d - f a i t h disagreements about h o w (if

understandings w i t h i n the culture, for the alteration and m a n i p u -

at all) to resolve disagreements i n g o o d f a i t h , h o w to design chan-

lation of that culture. It is for this reason that it is appropriate for

S t r a t e g i e s ef

Sealisîk

Mewmtmsiïm

Hyjîatîtsîksb

us to treat Walzer's theory as a p r i m e example of category .1, the

We require transcultural criteria for the alteration and permis-

reliance on brute-actual preferences ( " b r u t e " because there are no

sible m a n i p u l a t i o n of m o r a l cultures. But such criteria must do

criteria f o r p r o t e c t i n g or refining the f o r m a t i o n of preferences;

more than simply reflect whatever understandings happen to be

" a c t u a l " because it is the existing consensus w h i c h must provide

shared w i t h i n those cultures at a given t i m e . The strategy 1 w i l l

the basis for argument).

propose in part 3 is, in part, a response to this problem because

T h e central p o l i t i c a l i m p l i c a t i o n of the book is supposed to be

it focuses on the conditions under w h i c h values and preferences

the c o n d e m n a t i o n of t o t a l i t a r i a n i s m . However, imagine a t o t a l i -

develop. W i t h o u t criteria directed at this latter p r o b l e m , actual-

tarian regime that happens to succeed in the task that many

choice theories are vulnerable to the basic d i l e m m a : either they

have a t t e m p t e d — b r a i n w a s h i n g its citizens into accepting a set

fail to yield determinate implications or they yield determinate

o f shared understandings about the proper sphere of its p o l i t i -

implications only by the k i n d of manufactured consensus that

cal power. Once such shared understandings are accepted, there

renders t h e m vulnerable to i n d o c t r i n a t i o n problems.

are no grounds w i t h i n the confines of relativism to condemn the regime. The expansion of political power o n t o virtually every other sphere of life (as the boundaries were previously d r a w n ) cannot n o w constitute " t y r a n n y , " by definition, once that expansion is supported by the culture's shared understandings.

2.5 Category

2: Realistic

Hypotheticals

In category 2 of figure 2, there is a m o r a l l y relevant h y p o t h e t i -

Thus,

cal story about the choice of the state or the choice of the first

once an O r w e l l i a n regime operates perfectly, once it succeeds in

principles by w h i c h the state should be evaluated. The story is

t o t a l l y m a n i p u l a t i n g its o w n political culture, its t o t a l i t a r i a n i s m

imaginary, but the people are realistic in a special sense; they are

is transmuted i n t o justice by the relativistic strategy of relying en-

as we w o u l d find them in actual life under conditions where no

25

tirety o n shared understandings. Rather than p r o v i d i n g us w i t h the u l t i m a t e grounds for c o n d e m n i n g t o t a l i t a r i a n i s m , this relativistic t h e o r y of justice has laid the g r o u n d w o r k for its defense—prov i d e d only that thought control and propaganda are sufficientlv effective.

refinement mechanisms have been employed to purge their m o t i vations of bias or i n d o c t r i n a t i o n . I n this respect, the people are no different than they were in category I . Brute preferences are combined w i t h an imaginary story w h i c h , for some reason contended by the theorist, is m o r a l l y relevant to us i n that it bears

M a n y o f the most d i s t u r b i n g cases of injustice and e x p l o i -

on our evaluation of the state. As in category 1 , my basic line of

t a t i o n involve acceptance by the victims of the ideology ratio-

argument for category 2 w i l l be that w i t h o u t i n d o c t r i n a t i o n , brute

n a l i z i n g their v i c t i m h o o d . Provided that those ideologies are ac-

preferences produce sufficient disagreements and indeterminacies

cepted w i t h i n a given culture, a consistent relativism provides no

that they lead to failures to differentiate ( v i o l a t i n g c r i t e r i o n I ) ,

grounds f o r contrary evaluation. The same argument that B a r r i n g -

but that w i t h i n d o c t r i n a t i o n , they violate c r i t e r i o n 4.

ton M o o r e applied to Untouchables, ascetics, and even some con-

I w i l t focus on interpretations of category 2 that strive for una-

centration camp victims can then be applied to entire regimes. '

n i m i t y or unanimous acceptability, at least in some sense, The

If an entire society is victimized by a t o t a l i t a r i a n r e g i m e — b u t

agreement or consent of people m i g h t well vary i n the extent to

its members have been t h o r o u g h l y brainwashed to accept these

w h i c h it is strict or loose, but m constructing hypothetical stories

abuses of power as l e g i t i m a t e — t h e n there are no grounds for

w i t h m o r a l relevance, we need some basis for t y i n g the a u t h o r i t y of

c o n d e m n a t i o n w i t h i n a consistent relativism. For such a theory,

the result to everyone. H y p o t h e t i c a l , nonunanimous-brute theo-

" t y r a n n y " w o u l d have become "justice."

ries w o u l d fail the i n d i v i d u a l l y - b i n d i n g c r i t e r i o n (2), just as d i d

2 1

68

Realistic H y p o t i i e t i s a l s

S t r a t e g i e s of R e c o n s t r u c t i o n

69

the actual-choice versions of nonunanimous-brute theory. W h e n

point i n the story when the person's actual preferences e x p l i c i t l y

unanimous acceptability is not achieved, we have the same p r o b -

and unambiguously support the result.

lem of j u s t i f y i n g the decision rule by w h i c h those w h o disagree

N o z i c k ' s theory strives for unanimity w i t h an extremely weak

can justifiably be overruled or ignored. If there is no further step

f o r m of strict agreement. If this f o r m is unavailable, given a real-

at w h i c h unanimous acceptability is achieved, or if no refinement

istic construction of brute preferences, then so w i l l more demand-

mechanism exists to establish the greater rationality or objectivity

i o forms. T h i s case w i l l help support a more general c l a i m : that

of the consensus (as compared to the m i n o r i t y view), then crite-

strict (voluntary) unanimous agreement is too demanding a re-

n

r i o n 2 must be violated. There is no reason to believe the result to

quirement, whether for actual or for hypothetical constructions

be i n d i v i d u a l l y b i n d i n g .

of brute preferences. We have already seen that loose interpreta-

1 w i l l take Robert N o z i c k ' s argument for the m i n i m a l state as

tions of agreement (such as Locke's doctrine of tacit consent) fail

o f f e r i n g a g o o d specimen of category 2, that is, of a hypothetical-

to yield d i f f e r e n t i a t i n g conclusions, because they can be invoked

choice theory e m p l o y i n g a realistic construction of unrefined or

by an enormous variety of states. If using the king's highways or

brute preferences. As we w i l l see, it aspires to unanimous accept-

finding yourself w i t h i n the territory is taken as tacit consent, then

a b i l i t y t h r o u g h a compensation argument.

m a i n t a i n i n g consent of the people i n such a loose sense does not

As i n the discussion of actual-consent theory, it is w o r t h dis-

do much to distinguish among states. Whether we are dealing w i t h

t i n g u i s h i n g between strict and loose interpretations of consent or

actual or hypothetical constructions of brute preferences, strict

agreement. By the strict interpretation of agreement, we mean

agreement rules out t o o m u c h , while loose agreement legitimates

consent or satisfaction w i t h the result that is explicit and unam-

too much to be of any use in satisfying our first c r i t e r i o n .

biguous to the agent as an account of his actual preferences at

A c c o r d i n g to N o z i c k , we are to take the question of whether

we

there should be a state at all to the "best anarchic s i t u a t i o n one

t h i n k a person w o u l d agree to if she were rational or if she really

reasonably could hope f o r . " The state of nature is offered as a

some identifiable p o i n t i n time. It is not a matter of w h a t

2

t h o u g h t about the issue; nor is it a matter of our interpreting cer-

m o r a l l y relevant hypothetical situation for d e t e r m i n i n g whether

tain a c t s — w h i c h the agent clearly thought she was p e r f o r m i n g

or not there should be a state. The test for whether we should have

for other reasons—as appropriate tokens of consent according to

a state is to imagine our not having one—under conditions that

our conventions. Rather, by strict agreement, we mean that she

are b o t h realistic and o p t i m i s t i c — a n d then we shall see whether a

actually d i d agree (or consent or indicate, i n terms of her actual

state w o u l d have to be introduced or invented. The imagined alter-

preferences, satisfaction w i t h the result) at some point and that

natives must be realistic, for otherwise they w o u l d not be alterna-

she k n e w precisely w h a t she was d o i n g when she d i d so. O f course,

tives bearing on our range of choice; they w o u l d not constitute,

this k i n d of strict agreement may play a role i n a hypothetical

even remotely, alternatives for us. The construction of the state of

scenario, i n w h i c h case, as part of the story, we must imagine that

nature must be o p t i m i s t i c because a pessimistic or Hobbesian ac-

the people involved actually do agree. We can also leave open the

count of the state of nature could justify almost any state (even a

possibility of a p p l y i n g strict agreement retroactively (as N o z i c k

Leviathan). The idea is that if we can justify the state in preference

does i n the doctrine of full compensation),

to the best nonstate alternative, then we w o u l d have convincingly

1

or of r e q u i r i n g that

the u n a n i m i t y be prospective (rather than merely retroactive). But if the agreement is retroactive, then there must actually come a

justified the state and, indeed, a particular k i n d of state. We are given a hypothetical history. The state could have arisen

ReatisHs H y p o i h e t U o l s

71

by the scenario N o z i c k describes; and, the argument goes, this

Let us explore the precise scenario by w h i c h N o z i c k proposes

scenario w o u l d have required no morally impermissible steps:

to justify the m i n i m a l state. It illustrates the difficulty of pre-

" i f one could show that the state w o u l d be superior even to this

serving unanimous acceptability w i t h brute preferences, realisti-

most favored situation of anarchy, the best that realistically can

cally construed. We can s i m p l i f y Nozick's story into the f o l l o w i n g

be hoped for, or w o u l d arise by a process i n v o l v i n g no m o r a l l y

four steps:

impermissible steps, or w o u l d be an improvement if it arose, this w o u l d p r o v i d e a rationale for the state's existence; it w o u l d j u s t i f y the s t a t e . "

1

B u t there are innumerable possible scenarios under w h i c h states far more extensive than N o z i c k ' s " m i n i m a l state" ( l i m i t e d i n its functions to protection against force, theft, fraud, and interference w i t h contracts) m i g h t also have come about w i t h o u t violating rights (in his sense). W i t h i n Nozick's strictly nonpaternaiistic p o s i t i o n , people even have the right, voluntarily, to sell themselves i n t o slavery or to arrange for their o w n murders.' i f they were to 1

d o so, no rights w o u l d be violated. A state whose subjects were mostly slaves (or whose rights were comparable only to those i n

j.

i n d i v i d u a l s ( w i t h rights) live in the state of nature.

2. T h e individuals in step 1 f o r m voluntary associations to protect themselves. 3. T h e associations i n step 2 sort themselves out t e r r i t o r i a l l y (so that each is d o m i n a n t in its o w n t e r r i t o r y ) , f o r m i n g an " u t t r a m i n i m a l state" (where those w h o join and pay get protected and those w h o do not, do not), 4. The u l t r a m i n i m a l state in step 3 compensates the independents i n its t e r r i t o r y so as to incorporate everyone and f o r m a m i n i m a l state. T h e " r i g h t s " assumed in step I are "side-constraints"

upon

m o d e r n t o t a l i t a r i a n societies) could have come about t h r o u g h no

action. It is not permissible to violate even one person's rights,

m o r a l l y impermissible steps. Clearly, if slavery could conceivably

regardless of whether the motive is to protect a greater number

come about t h r o u g h no morally impermissible steps, then so c o u l d

of others. N u m b e r s of rights violations are not to be compared

less drastic states more extensive than the m i n i m a l state, a p r i m e

or balanced; part of the appeal of the theory is the s i m p l i c i t y of

example being the m o d e r n welfare state. W h a t N o z i c k requires

the basic p o s i t i o n that one never violates rights.' Because even

to sort t h r o u g h these counterfactuals is not merely the claim that

one rights v i o l a t i o n w o u l d delegitimate the outcome, and because

the m i n i m a l state (and only the m i n i m a l state) could come about

the independents have the right to remain independent unless

t h r o u g h no morally impermissible steps, but that this h y p o t h e t i -

they v o l u n t a r i l y cede that right to the m i n i m a l state, the theory

cal scenario—and only this hypothetical scenario—is compatible

ends up r e q u i r i n g unanimous acceptability for the transition to

w i t h a plausible, realistic construction of w h a t we could reason-

the m i n i m a l state. As noted in step 4 above, N o z i c k attempts to

ably expect to happen i n the state of nature he describes. I n par-

accomplish this t h r o u g h a " c o m p e n s a t i o n " argument. However,

ticular, i t must be uniquely compatible w i t h a plausible, realistic

in order to remain compatible w i t h the theory's fundamental as-

c o n s t r u c t i o n of the preferences we can attribute to these i m a g i -

sumptions, compensation

nary people in his choice scenario. We are not impressed bv the

makes it a p r o x y for unanimous agreement or consent f r o m those

h y p o t h e t i c a l story that if evervone were to w i s h , voluntarily, to be-

w h o apparently disagree. A n d once compensation is interpreted

has to be interpreted i n a sense that

come slaves, then a t o t a l i t a r i a n society could come about t h r o u g h

in this way, it becomes impossible to get significant substantive

n o " m o r a l l y impermissible steps." The force of this h y p o t h e t i -

conclusions f r o m the theory. So long as a choice scenario is b o t h

cal is completely blunted by the i m p i a u s i b i l i t y of a t t r i b u t i n g such

realistic i n its construction of brute preferences and unanimous in

preferences to the people under any realistic construction.

its requirements, it w i l l simply not produce t h e m .

Realistic H y p o t h e t k s l s

S t r a t e g i e s of Itecortstructmn

For our purposes, \vc d o not need to dispute steps 1-3 j

n

73

satisfying our c r i t e r i o n 2—as a way of m a k i n g the obligations to

N o z i c k ' s tour-step scenario. These transformations depend on

s u

e m p i r i c a l assumptions about the market for protection services

this p r o b l e m may be special to N o z i c k , the general issue applies

(assumptions that we can grant for purposes of argument). But

u

if the scenario reached only so far as step 3, it w o u l d not have

p p o r t the state individually

binding.

Hence, w h i l e the details of

, any theory i n this category that m i g h t aspire to satisfy out-

conditions.

accomplished its purpose, since the so-called u l t r a - m i n i m a l state

Nozick's scenario has not produced the unique legitimacy of

is not a state at a l l . It does not satisfy a state's m i n i m u m defining

the m i n i m a l state. Instead, up to step 3, it has produced only a

feature: it cannot r i g h t f u l l y claim a m o n o p o l y over the legitimate

forced choice between a legitimate nonstate (anarchy) and an ille-

use of force in its territory.' The independents, those w h o have n o t 1

v o l u n t a r i l y joined the p r o t e c t i o n association, have the same right to e m p l o y legitimate force as does the association (the " u l t r a m i n i m a ! state"). The independents cannot be incorporated w i t h out losing a crucial right, the right to interpret and defend their o w n rights as they sec f i t — a right that N o z i c k calls "self-help enforcement." ^

gitimate state ( t h r o u g h forced i n c o r p o r a t i o n of the independents). The move f r o m step 3 to step 4 — a move that N o z i c k requires if there is to be any point to the argument—seems, at first glance, to be doubly objectionable. N o t only does it appear to violate the rights of the independents, by t a k i n g away their right to selfhelp enforcement, but it also appears to violate the rights of the members by f o r c i n g r e d i s t r i b u t i o n — f o r c i n g the members to pay

i f the association takes away this right w i t h o u t consent, then

for p r o t e c t i o n services to be given to the independents, after they

the resulting state is illegitimate, because even one rights v i o l a t i o n

are incorporated. ' N o z i c k believes, roughly, that these t w o (ap-

is enough to delegitimate the outcome (it is this characteristic of

parent) w r o n g s make the next step r i g h t . The idea is that forced

1

N o z i c k ' s theory that brings it w i t h i n the category of theories re-

i n c o r p o r a t i o n can be justified through compensation. O n the one

q u i r i n g unanimous acceptability). But if the independents retain

hand, the members have not had their rights violated t h r o u g h re-

this r i g h t , then no state has been produced. If the scenario reached

d i s t r i b u t i o n to the independents (giving the independents services

only this far, then the whole point of the story w o u l d have been

they have n o t paid f o r ) , because they owe compensation to the

lost. We w o u l d have imagined an alternative to the state—namely,

independents f o r t a k i n g away the right to self-help enforcement.

a n a r c h y — o n l y to see it eventually yield anarchy.

O n the other hand, the independents have not had their rights

O f course, N o z i c k m i g h t have argued that all the independents

violated t h r o u g h forced i n c o r p o r a t i o n , because they are fully com-

simply decide, voluntarily, to buy protection contracts and j o i n

pensated. A n d if one interprets compensation strictly, as N o z i c k

the state. These people are imaginary, so actual history does n o t

does, and if it is actually paid, then it becomes a p r o x y for a k i n d

l i m i t the endings that m i g h t be devised for the story. But this re-

of consent, applied ex post facto." This aspect of compensation

duces the scenario to our i m a g i n i n g that there was anarchy but

becomes e x p l i c i t f r o m his b o r r o w i n g of the "indifference c u r v e "

that somehow, miraculously, absolutely everyone agreed to f o r m

terminology f r o m economics: " F u l l compensation keeps the vic-

a state. It strains credulity to imagine u n a n i m i t y on such a ques-

t i m on as high an indifference curve as he w o u l d occupy if the

t i o n . But a n y t h i n g less than u n a n i m i t y either prevents a state f r o m

other person h a d n ' t crossed." "

8

1

resulting or violates rights so as to delegitimate the resulting state.

X's indifference curves arc a representation of X's actual prefer-

N o t e that, for our purposes, the aspiration for u n a n i m i t y s h o u l d

ences. Once he has been fully compensated in his o w n estimation,

not be viewed as a peculiarity of the theory, but rather as a way o f

there is a sense in w h i c h he has consented to the change: he re-

74

S t r a t é g i e s e í toc&ñsíradiíHi

gards the new situation ( w i t h compensation) as at least as g o o d as the o l d s i t u a t i o n ( w i t h o u t compensation). Just as voluntary consent opens the " b o r d e r " for crossing, f u l l compensation after the

r i e n r e 4. N o z i c k ' s Scenario

O P T I O N S F O R TFIF. RESOLUTION O F N O Z I C K ' S SCENARIO

A

fact legitimizes apparent border crossings t h r o u g h a k i n d of subsequent consent. I n fact, the only objection N o z i c k offers to the

A

B

extreme case of an eccentric w h o goes around breaking arms and

Independents

Independents n o t

w r i t i n g fat checks to fully compensate the victims is that not all the

incorporated

i n c o r p o r a t e d (no state and

A

victims c o u l d possibly be fully compensated—because a general climate of fear w o u l d be created t h r o u g h o u t the c o m m u n i t y .

12

H o w e v e r , once compensation is taken seriously (and N o z i c k

violates c r i t e r i o n ! [ b j )

A t

A2

Loss fully

Loss not fully

must take it perfectly seriously if he is to preserve the simple side-

compensated ( m o r e

compensated

constraint view of rights that boundary crossings are never to

than m i n i m a l state

(illegitimate state

be p e r m i t t e d w i t h o u t consent), then the options resulting f r o m

and violates

and violates c r i t e r i a

the argument reduce to those p i c t u r e d in figure 4. For our pur-

criterion l(a!)

l [ b j and 2)

poses, N o z i c k must take compensation perfectly seriously or else he loses his basis for satisfying c r i t e r i o n 2 and m a k i n g the result individually binding.

the loss of this right to self-help enforcement is fully compensated (option A l ) or i t is not ( o p t i o n A 2 ) . If the loss of the right to self-

T h e possibilities in figure 4 depict the options available after

help enforcement is not fully compensated, then the resulting state

step 3 i n the hypothetical history. Obviously, either the indepen-

is not legitimate. For N o z i c k , even one rights v i o l a t i o n is enough

dents are incorporated i n t o the state ( o p t i o n A) or they are not

to invalidate the process. Flence o p t i o n A 2 , w h i l e p r o v i d i n g a

( o p t i o n B). If they are n o t , then, by the criteria stated earlier, the

state, does n o t provide a morally acceptable one. For our purposes,

p r o t e c t i o n association does not q u a l i f y as a state. It does not have

o p t i o n A 2 can be interpreted as violating b o t h criteria 1(b) and 2.

the requisite m o n o p o l y over the legitimate use of force i n the ter-

It violates c r i t e r i o n 1(b) because we are still w i t h o u t a justification

r i t o r y because the independents retain the same right to use force

for state a u t h o r i t y . I t violates c r i t e r i o n 2 because less than full

as does the d o m i n a n t association. Since the t h o u g h t experiment

compensation cannot be considered a p r o x y for consent. Flence,

for the possibility of justifying the state w o u l d then have failed,

w i t h inadequate compensation, the case for the theory satisfying

anarchism w o u l d have w o n the argument and the theory w o u l d

the i n d i v i d u a l l y b i n d i n g c r i t e r i o n breaks d o w n . Clearly, prospects

then violate otir c r i t e r i o n 1(b).

for a successful c o m p l e t i o n to the argument t u r n on o p t i o n A l .

I f the independents are incorporated (option A in fig. 4 ) , a

W h a t does i t take to fully compensate the independents for

necessary part of that i n c o r p o r a t i o n is the loss of the right to self-

losing the r i g h t to self-help enforcement? Recall that they are i n -

help enforcement. It is precisely the right to use vigilante justice,

dependents precisely because they previously turned d o w n the

to i n t e r p r e t and enforce one's rights entirely as one sees f i t , that

o p t i o n of j o i n i n g the p r o t e c t i o n association. N o w N o z i c k p r o -

distinguishes anarchy f r o m the state. Hence, if the t r a n s i t i o n to

poses to take away the very independence they wished to preserve

a state is to be accomplished, there are t w o possibilities: either

and, in compensation, to give them merely the p r o t e c t i o n services

76

77

i e d i s t i * H y p o t h e t i c Is

S t r a t e g i e s of R e c o n s t r u c t i o n

they hat! previously refused! It strains credulity to imagine that

to be subservient to any government, objecting to their forced i n -

they feel fully compensated, in their o w n estimation by this forced

c o r p o r a t i o n into the s t a t e .

bargain.

simply ends up in the A 2 category and the state that results is

b

i n that case, however, the scenario

T o be fully compensated, they must be on as high an " i n d i f f e r -

illegitimate because rights have been seized w i t h o u t full compen-

ence c u r v e " w i t h o u t the right but w i t h the compensating services

sation. C r i t e r i o n 2 is then violated because there is no basis in

and/or goods as they were previously w i t h their rights but w i t h -

the people's o w n preferences for b i n d i n g them to the state ( f r o m

out the compensation. The case can only be made plausible if

w h i c h they w o u l d prefer to remain independent). C r i t e r i o n 1(b) is

many more services and''or goods are p r o v i d e d than w o u l d be

also violated because we end up w i t h the b l i n d alley of anarchism

compatible w i t h the meager offerings built into the d e f i n i t i o n of

once again.

the m i n i m a l state (the m i n i m a l services p r o v i d e d are w h a t make

O n the other hand, once we assume that it is possible, at least in principle, to compensate for the loss of the independents' rights,

the m i n i m a l state " m i n i m a l " ) . W h e n we begin to imagine w h a t other goods and services might-

the required goods and services clearly surpass those offered by

be p r o v i d e d in order to make the resulting compensation suffi-

the m i n i m a ! s t a t e — p r o v i d e d that full compensation must be p r o -

ciently attractive to place the independents on as high an indiffer-

vided. A n d as we saw earlier, anything less than full compensation

ence curve as they w o u l d have been on otherwise, the resulting

should be construed as a rights violation because it w o u l d not

structure of the state begins to look quite different. We m i g h t

constitute any sort of consent or permission (even if retroactive)

imagine the new state p r o v i d i n g money, f o o d , medical care, educa-

for border crossings. Once border crossings w i t h o u t permission

t i o n , and a host of other human services. In order to render p l a u -

are tolerated, the entire theory begins to disintegrate.

ü

16

sible the c l a i m that the independents are fully compensated, the

The possibilities i n figure 4 reduce t o : (A 1) legitimate but more

apparent r e d i s t r i b u t i o n w o u l d have to be substantial. I say " a p p a r -

extensive states than the m i n i m a l state; (A2) an illegitimate state;

ent r e d i s t r i b u t i o n " because, as N o z i c k rightly notes, if transfers

and (B) no state. Nozick's proposed conclusion, the unique legiti-

are paid as compensation, they should not be considered redistri-

macy of the m i n i m a l state, is not one of the possibilities. I he

b u t i o n (even t h o u g h they w i l l have this appearance because goods

argument clearlv does not produce d i f f e r e n t i a t i n g conclusions.

or services are moved f r o m one g r o u p to another). '

O p t i o n B, anarchism, rules out all the possibilities that involve

1

1

Whatever the details, the resulting state wilt be more than m i n i -

having a state. O p t i o n A l fails to differentiate a m o n g states. From

m a l i f f u l l compensation must be paid. In fact, since many of the

it, we o n l y k n o w that some indeterminate range of more extensive

independents may have failed to join earlier because they c o u l d

states may be legitimate. We cannot k n o w more f r o m the argu-

not a f f o r d t o , the particular character of the m o r e - t h a u - m i n i m a l

ment because the issue turns o n an e m p i r i c a l question about a

state that results m i g h t t u r n out to be precisely the one N o z i c k

hypothetical history: it depends on the preferences of imaginary

is most concerned to argue against, namely, that of the m o d e r n

people. W i t h i n the g r o u n d rules of realism, there is w i d e latitude

welfare state.

in how m u c h compensation m i g h t be required and in h o w much r

It is, o f course, possible that none of these offerings w i l l t u r n

these people m i g h t t u r n out to value their independence. W h a t we

o u t to be sufficient. F r o m the standpoint of the independents, per-

can conclude is that if the argument legitimates any state at a l l , it

haps no compensation w i l l be enough to make up for loss of their

legitimates an indeterminate range of states that engage i n at least

rights. We m i g h t imagine hardy individualists, w h o do not w i s h

some r e d i s t r i b u t i o n . T h a t is v i r t u a l l y the full range of states in the

I m p a r t i a l i&etistan F i m e « J » r e s

S t r a t e g i e s of U e i e r t s t r a t H o t i

m o d e r n w o r l d today. Clearly, o p t i o n A l fails criterion 'I(a), the

79

The i n d o c t r i n a t i o n example also hints at another major problem. H y p o t h e t i c a l histories have a different claim on us than do

nonvacuous requirement. construc-

real histories. Once we get into the business of creating h y p o t h e t i -

t i o n of brute preferences w i t h o u t any explicit efforts to t r a n s f o r m

cal stories, their relevance for us must rest on some other c l a i m

We reached this dead end by assuming a realistic

those preferences t h r o u g h i n d o c t r i n a t i o n . N o z i c k , like Watzer and

than that they actually happened. The indoctrinated-hypothetical

the actual-choice theorists of category I , does not provide protec-

scenario has clearly lost all moral relevance for us. This is a cru-

t i o n f r o m i n d o c t r i n a t i o n for the process of preference f o r m a t i o n .

cial objection to brute-hypothetical scenarios. However, even if

We should see w h a t happens when this assumption is relaxed.

one constructed a scenario that had a greater c l a i m of moral rele-

Suppose, f o r example, that everyone i n the t e r r i t o r y belonged to

vance, it w o u l d still face the p r o b l e m of satisfying c r i t e r i o n 3,

a religious cult w h i c h raised its children to defer entirely to the

the j u r i s d i c t i o n p r o b l e m .

j u d g m e n t of a particular leader o n all questions of public policy.

claim to m o r a ! relevance could not be matched by rival theories

Its members were indoctrinated i n the sense that no rival views

m a k i n g the same fundamental claim to constitute an appropriate

were ever discussed, even i n private, and heavy social sanctions were applied to anyone offering the merest h i n t of d o u b t or of f r e e - t h i n k i n g . In the t e r r i t o r y of this homogeneous and coercive cult fa t e r r i t o r y we m i g h t call C u l t - l a n d ) , once the leader approves j o i n i n g the m i n i m a l state, everyone unanimously and sincerely f o l l o w s . In other w o r d s , C u l t - l a n d achieves the transition to the m i n i m a l state w i t h o u t having to c o n f r o n t the compensation

17

It w o u l d still have to establish that its

basis for m o r a l choice. Because this j u r i s d i c t i o n p r o b l e m is the central issue i n category 3 theories, I w i l l put it off until the next section. It Is w o r t h n o t i n g , however, that the same issue arises for category 2 — o n l y the latter category's responses are c o m p l i cated by the a d d i t i o n a l , delegitimating hurdle of i n d o c t r i n a t i o n problems.

p r o b l e m , simply because there are no independents to be c o m pensated. It achieves the transition to the m i n i m a l state w i t h o u t having to c o n f r o n t the p r o b l e m of disagreement, simply because there is none.

2.6 Category

3: Impartial

Decision

Procedures

Theories i n category 3 of figure 2 combine a hypothetical situat i o n w i t h an e x p l i c i t e f f o r t to refine the preferences or motivations

W h i l e such a hypothetical story w o u l d lead, unanimously, to

that bear o n the choice of p r i n c i p l e s — t o refine them so as to elimi-

the m i n i m a l state, there is no reason for that story to h o l d any

nate the biases that m i g h t otherwise deflect the choice t h r o u g h

m o r a l relevance for us. It is delegitimated as a moral example for

morally irrelevant factors. Such refinement mechanisms clearly

us because i t depends on preferences and choices that are deter-

provide a response to the i n d o c t r i n a t i o n problems that bedevil

m i n e d by i n d o c t r i n a t i o n . For a merely hypothetical story to m a i n -

categories 1 and 2.

tain m o r a l relevance, the choice needs to be v o l u n t a r y ; i t needs to

Category 3 has p r o v i d e d the basis for the resuscitation of sys-

be free of coercive m a n i p u l a t i o n . W i t h o u t i n d o c t r i n a t i o n , we can

tematic liberal theory over the last t w o decades. One basic idea

see f r o m figure 4 that N o z i c k ' s scenario leads to indeterminate

is at the core of this strategy: the definition of an appropriately

results. W i t h i n d o c t r i n a t i o n , on the other hand, it leads to re-

unbiased m o r a l perspective or decision situation for the selection

sults that lack any m o r a l relevance as an example for us. W i t h o u t

of first principles that are to have p r i o r i t y i n a liberal state (at least

i n d o c t r i n a t i o n , the scenario violates either criterion l a or criteria l b or 2; w i t h i n d o c t r i n a t i o n , the scenario obviously violates c r i t e r i o n 4.

under ideal conditions). Rawls's " o r i g i n a l p o s i t i o n , " Ackerman's n o t i o n of " n e u t r a l dialogue," D w o r k i n ' s "equal concern and respect," and Peter Singer's reconstruction of the perfectly sympa-

80

I m p a r i i d Sesision F r e s e d u r e s

Strategies o i Reconstruction

thetic spectator of the classical utilitarians all have this character. Each defines a perspective of impartiality

1

for the equal consider-

81

cisely s y m m e t r i c a l claims: each can derive first principles f r o m his o w n preferred account of the m o r a l point of view. The basis f o r any particular principle supported in this way is open to reason-

a t i o n of relevant claims or interests. M o r a l decision procedures such as the Golden Rule or Kant's

able disagreement precisely because the rival procedures embody

Categorical Imperative have long played a role in ethical debate.

slightly different rival conceptions of m o r a l reasonableness, each

I he obvious difficulty has been that these procedures have been

m a k i n g the same fundamental c l a i m .

specified loosely enough that it is easy for proponents of rival sub-

Fully specifying the procedure does not evade the jurisdiction

stantive conclusions to cite their preferred outcomes as the result

p r o b l e m . Rather, it dramatizes and clarifies i t . Once we specify

of the same procedure.'

a variety of these procedures, the conclusions f r o m any p a r t i c u -

By contrast, the procedures in category 3 attempt to c o n t r o l

lar version of the strategy are too easy to evade—even for liberal

the factors that may be b r o u g h t to bear o n the decision by m a k i n g

theorists c o m m i t t e d to the same general strategy of arguing f r o m

the deliberations h y p o t h e t i c a l . The opportunities for c o n t a m i n a t -

the i m p a r t i a l consideration of interests. We need some basis for

ing the argument w i t h irrelevant factors are controlled by t a k i n g

differentiating conclusions (for criteria that select a subclass of

the deliberations to a hypothetical situation i n w h i c h the factors

most-preferred alternatives) w h i c h i t w o u l d be difficult for any

at play are fully specified and sealed off f r o m real-life biases and

recognizable version of liberal theory to evade. Because even slight

contingencies. A t first glance, this strategy seems to have a great

variations i n the account of i m p a r t i a l i t y or of interests yield r a d i -

deal of m e r i t . If each step i n the procedure is specified sufficiently,

cally different p o l i t i c a l conclusions, any proposed response to c r i -

then it s h o u l d be possible to b r i n g proponents of rival principles

terion I is subject to j u r i s d i c t i o n a l challenge—when supported in

e m p l o y i n g the same procedure to the same ultimate conclusions.

this way.

Yet f r o m this general idea, we can conclude virtually n o t h i n g

A n y viable version of category 3 must specify h o w relevant

particular fully specified strategy should have su-

claims or interests are g o i n g to be considered in an i m p a r t i a l or

premacy. Even slight variations in the account of i m p a r t i a l i t y or

appropriately unbiased way in the hypothetical situation. As 1

of interests i n a fully specified m o r a l decision procedure can p r o -

noted earlier, the initial p r o b l e m w i t h hypothetical situations is

duce radically different first p r i n c i p l e s — a fact dramatized by the

that we can see that proponents of rival principles can devise rival

dispute between Rawls and Harsanyi over interpretations of the

stories designed, in t u r n , to support their respective principles.

o r i g i n a l p o s i t i o n that yield principles as different as m a x i m i n and

The central question about the strategy is: Can some character-

average utility." M a n y procedural devices seem to embody a k i n d

ization of the factors in such a hypothetical situation be

of i m p a r t i a l i t y or equal consideration. " E q u a l c o u n t i n g , " the " v e i l

f r o m j u r i s d i c t i o n a l challenge by other theories advocating other

of ignorance," and " m o r a l musical c h a i r s " are a few of the recent

factors? Unless there is some such characterization, the jurisdic-

contenders.' Similarly, many r i v a l conceptions of interests m i g h t

tion p r o b l e m is inescapable for any version of this k i n d of theory.

about which

5

1

immune

be considered i m p a r t i a l l y by such a procedure. Rawlsian p r i m a r y

Fhe quest is f o r a characterization of factors in the decision

goods, A c k e r m a n i a n " m a n n a , " and u t i l i t y in one sense or another

situation that is so neutral about the controversies i n question

are the proposals most p r o m i n e n t i n recent debates.

that i t is above reasonable challenge. Can a theory achieve strict

5

The difficulty is that proponents of each procedure (specifying a n o t i o n of i m p a r t i a l i t y and a n o t i o n of interests} can make pre-

neutrality and at the same time offer substantive conclusions? To illustrate the general p r o b l e m , let tis turn to the t w o most

I m p a r t i a l P e r n Son ^ r e c e d a r e s

S t r a t e g i e s of R e c o n s t r u c t i o n

82

a m b i t i o u s versions of a category 3 theory i n recent years, Rawls's /\ Theory

of Justice

and Ackerman's Social justice

in the

Lib-

eral State. I n discussing Rawls, Thomas Nagel cogently states the strategy at the core of b o t h theories: " A theory of the g o o d is presupposed, but it is ostensibly conceptions.

neutral between divergent

particular

83

[•'i^ure 5- Options for Hypothetical-Choice Theories HYPOTHETICAL-CHOICHTHiiOKIt-S Brute (indoctrination

Refined

problems)

. . . It is a fundamental feature of Rawls's conception

of the fairness of the o r i g i n a l position that it should not p e r m i t the

Strictly neutral

Not strictly

choice of principles of justice to depend o n a particular conception

(vacuous)

neutral

of the g o o d over w h i c h the parties may d i f f e r . " ' 1

Is it possible to develop a viable but neutral theory of relevant

Want-regarding

claims o r interests that m i g h t i m m u n i z e substantive conclusions f r o m j u r i s d i c t i o n a l challenge? A neutral theory w o u l d d r a m a t i cally reduce the r o o m f o r reasonable disagreement; it holds o u t

Selective

Nonselective (interpersonal comparisons, indoctrinated preferences)

the promise of a f i r m basis for whatever principles result f r o m the i m p a r t i a l consideration of everyone's relevant claims or interests. If a theory is beyond reasonable challenge in its c l a i m to neutrality, it trumps the conclusions of r i v a l , less neutral theories. H o w e v e r , t o the extent that this promise is directed t o w a r d

Paretian (triviality)

Ideal-regarding (paternalism)

Nou-Paretian (interpersonal comparisons)

satisfying our criteria, i t is, I w i l l argue, chimerical. To situate the argument, b o t h Rawls and A c k e r m a n offer us imaginary-choice

O f course, any particular version of such an imaginary-choice

theories: the m o r a l p o i n t of view is formalized by a h y p o t h e t i c a l

theory must offer its o w n account of w h a t factors are m o r a l l y

but m o r a l l y relevant decision situation w h i c h is constructed

relevant or irrelevant and of what gets i m p a r t i a l l y considered. It

so

as to perfectly insulate its results f r o m contamination by irrele-

is in c o n f r o n t i n g the latter task that the neutrality issue arises.

vant factors.' I n constructing these imaginary situations, we are

As figure 5 shows, some versions aspire to strict neutrality i n

n o t l i m i t e d by practical constraints. It is not an argument against

their consideration of relevant claims or interests, w h i l e others do

one of these decision situations that its defining conditions w o u l d

not. M y basic line of argument w i l l be that strict neutrality, i f

be impossible to realize. The m o r a l relevance of the imaginary

taken seriously, blocks the road to any differentiating conclusions

t h o u g h t experiment ties i n the c l a i m that if we could realize those

(prescriptions that m i g h t satisfy criterion .1). But once neutrality

c o n d i t i o n s , then our conclusions w o u l d be completely u n c o n t a m i -

is loosened, then the basis for differentiating conclusions has been

nated by m o r a l l y irrelevant factors. Provided that we can coher-

lost and the controversies a p p l y i n g to either w a n t - r e g a r d i n g or

ently and plausibly w o r k t h r o u g h w h a t w o u l d be arrived at under

ideal-regarding theories of interests (or other relevant claims) p r o -

the appropriate imaginary conditions, we have a strategy f o r sup-

vide ample r o o m for reasonable disagreement and ample grounds

p o r t i n g the resulting p r i n c i p l e : i t is the one that w o u l d be chosen

for j u r i s d i c t i o n a l challenges among competing thought experi-

under the admittedly imaginary but allegedly perfect conditions

ments ( v i o l a t i n g c r i t e r i o n 3).

for m a k i n g such a choice.

Let us begin w i t h the aspiration for strict neutrality. I n Rawls's

Impartial t&amiesi Ptm®$wm

S t r a t e g i e s of i e i e s i s t r a s t i s f j

85

case, this aspiration is expressed by his use of the " t h i n theory

want regardless of whatever else he turns out to w a n t . In this way,

of the g o o d . " We are told that " t h e theory of the g o o d used i n

he may supposedly choose moral principles out of self-interest

arguing for the principles of justice is restricted to the bare essen-

while k n o w i n g n o t h i n g about himself that does not apply equally

t i a l s . " We must use the t h i n theory because we cannot do w i t h o u t

to everyone else.

a theory of the g o o d altogether: " T o establish these principles i t

N o t e that this account of a person's true interests based o n

is necessary to rely on some n o t i o n of goodness, for we need as-

his " r a t i o n a l p l a n " does not depend in the slightest o n any ten-

sumptions about the parties' motives in the o r i g i n a l p o s i t i o n . " *

dency of persons in real life (or in the ideal just society) to " p l a n "

But these motives cannot be influenced by the particular concep-

their lives w i t h any coherence or even i n any consciously

tions of the g o o d we happen to have acquired i n actual life. As

lated way. Rather, "a rational plan is one that w o u l d be selected

formu-

Rawls notes in a later article, " T h a t we have one conception of the

if certain conditions were fulfilled. The c r i t e r i o n of the good is

g o o d rather than another is not relevant f r o m a m o r a l standpoint.

hypothetical in a way similar to the c r i t e r i o n of j u s t i c e . "

In a c q u i r i n g it we are influenced by the same sort of contingencies

10

These r a t i o n a l plans are distinguished f r o m other plans of

Rawls

life, first, i n that they c o n f o r m to certain "principles of r a t i o n a l

m i g h t have added that if we were each to i m p o r t our o w n p a r t i c u -

choice," and second, in that they w o u l d be chosen by the per-

lar conceptions of the g o o d i n t o the original p o s i t i o n , the basis

son w i t h " f u l l deliberative r a t i o n a l i t y . " The principles of rational

f o r any unanimous agreement w o u l d have been lost. N o single re-

choice are neutral w i t h respect to particular substantive

sult w o u l d rest on a firm basis because conscientious

that lead us to rule out a knowledge of our sex and class."

y

aims.

proponents

They "define r a t i o n a l i t y as preferring, other things equal, the

o f rival principles could each take their case to a version of the

greater means for realizing our aims, and the development of

o r i g i n a l p o s i t i o n e m p l o y i n g their o w n notions of the g o o d . Juris-

wider and more varied interests assuming that these aspirations

d i c t i o n problems w o u l d then bedevil these rival interpretations

can be carried t h r o u g h . " The concept of deliberative r a t i o n a l i t y

of the o r i g i n a l p o s i t i o n — e a c h challenged by other versions that

is s i m i l a r l y n o n c o m m i t t a l w i t h respect to particular substantive

e m p l o y their favorite conceptions of interests to yield different

aims. It specifies as " r a t i o n a l " whatever plan we w o u l d choose

conclusions. R a w l s , of course, does not take this route. H i s proposal is that,

" w i t h full awareness of the relevant facts and after a careful consideration of the consequences."

11

Plans are thus rational to the

regardless of our actual notions of our interests, we should all

degree that they involve an effective consideration of means for

rely o n the same " t h i n theory." But h o w can we judge the self-

realizing our aims and a choice of aims made w i t h f u l l knowledge

interest of individuals w i t h o u t k n o w i n g a n y t h i n g i n particular

of conditions and consequences.

about them—-anything that does not apply equally to everyone

It should be evident that a w i d e variety of plans r e q u i r i n g a

else? The t h i n theory leads f r o m the " d o c t r i n e of rational plans of

w i d e variety of conditions for their fulfillment m i g h t well satisfy

l i f e " to the " d o c t r i n e of p r i m a r y g o o d s " ; the latter is to guide the

these c o n d i t i o n s . A n y plan that anyone w o u l d choose for himself

choice of principles of justice.

w i t h full awareness in the " d e l i b e r a t i v e " sense and according to

Rawls argues that an agent i n the original position may f u r t h e r

these principles o f rational choice thus qualifies as rational. I n

his o w n particular rational plan of life (whatever that may t u r n

principle, there are few limits on the variety that rational plans

o u t to be once the veil of ignorance is removed) by m a x i m i z i n g

may assume. As Rawls admits, " F r o m the d e f i n i t i o n alone very

his share of " p r i m a r y g o o d s " — g o o d s that it is rational for h i m to

little can be said about the content of a rational p l a n , or the par-

I m p a r t i a l Decision P r o c e d u r e s

S t r a t e g i e s of R e c o n s t r u c t i o n

87

ticular activities that comprise i t . " Consider Rawls's example of

The c o u n t i n g principles in c o n d i t i o n 1 are purely i n s t r u m e n t a l ;

the grass-counter: " I m a g i n e someone whose only pleasure is to

c o n d i t i o n 2 is purely f o r m a l . It specifies only that the plan is the

count blades of grass in various geometrically shaped areas such

one that the person himself w o u l d choose under conditions of ftiil

as park squares and w e l l - t r i m m e d lawns. He is otherwise intel-

awareness. H o w is this thin theory supposed to support the cal-

ligent and actually possesses unusual skills, since he manages to

culations of self-interest (behind the veil of ignorance) that yield

survive by solving difficult mathematical problems for a fee. T h e

the general and special conceptions of justice?

d e f i n i t i o n of the g o o d forces us to admit that the good for this m a n

ing the issue i n great detail, the basic point is that the t h i n theory

is indeed c o u n t i n g blades of grass, or more accurately, his g o o d is

is supposed to provide " t h e qualitative structure of the possible

determined by a plan that gives an especially p r o m i n e n t place to

gains and losses i n relation to one's conception of the g o o d . "

!fi

W i t h o u t pursu-

1

Despite the dizzying variety of life plans that m i g h t

This qualitative structure is supposed to yield the "'three chief

q u a l i f y as rational once the veil of ignorance is removed, Rawls

features" that make m a x i m i n ( m a x i m i z i n g the m i n i m u m share)

believes that there is a sufficient basis for the choice of substantive

the rational choice for the general conception of justice (and for

principles in the original p o s i t i o n . Guided by self-interest

even

the d i s t r i b u t i o n of income and wealth in the special conception).

this a c t i v i t y . "

12

t h o u g h we k n o w n o t h i n g in particular about ourselves, we w o u l d

The first feature is that "the situation is one i n w h i c h a knowledge

choose, Rawls believes, to maximize the m i n i m u m share of p r i -

of likelihoods is impossible, or at best extremely insecure." The

mary goods (the " m a x i m i n " n o t i o n of the "general

argument turns o n the second and t h i r d features;

of justice}.

11

conception"

Furthermore, once we take account of the compara-

tive w o r t h of the various p r i m a r y goods, we w o u l d also specify the p r i o r i t y rankings of the "special c o n c e p t i o n " (liberty, then fair equality of o p p o r t u n i t y , and then the m a x i m i n d i s t r i b u t i o n o f income and w e a l t h ) .

|:i

The key p o i n t f o r our purposes is that Rawls cannot get such ambitious substantive conclusions f r o m the thin theory of the g o o d and at the same time maintain its " t h i n n e s s " — i t s n e u t r a l i t y

The person choosing has a conception of the good such that he cares very little, if anything, for what he might gain above the minimum stipend that he can, in fact, be sure of by following the maximin rule [second feature). It is not worthwhile for him to take a chance for the sake of a further advantage, especially when it may turn out that he loses much that is important to him. This last provision brings in the third feature, namely, that the rejected alternatives have outcomes that one can hardly accept. The situation involves grave risks.' 8

between particular, controversial " f u l l e r " theories. The thinness of the t h i n theory derives f r o m the purely procedural and i n s t r u -

These assumptions

are not sufficient to support so strong a

mental account of its component parts. The necessary and suffi-

conclusion as m a x i m i n . To illustrate the slippage, consider the

cient conditions for a rational life plan are defined in procedural

d i s t r i b u t i o n p r o b l e m for a society of t w o persons. I n figures 6—

and instrumental terms: " A person's plan of life is rational if,

8, the shares of p r i m a r y goods to persons A and B are pictured

and only if, ( i ) it is one of the plans that is consistent w i t h the

o n the vertical and h o r i z o n t a l axes, respectively. '' Let us suppose

principles of rational choice w h e n these are applied to all the rele-

that there is some amount of p r i m a r y goods that satisfies the sec-

vant features of his s i t u a t i o n , and (2) it is that plan among those

o n d and t h i r d features assumed by Rawls i n the above passage.

meeting this c o n d i t i o n w h i c h w o u l d be chosen by h i m w i t h f u l l

Let us call that amount " Z " p r i m a r y goods. A n y t h i n g less than

deliberative rationality, that is, w i t h full awareness of the relevant

7, is a disaster; and compared to the prospect of getting less than

facts and after a careful consideration of the consequences."

Z , we care " l i t t l e if a n y t h i n g " to gamble for more, Rawls's p r o -

t 5

1

impartial

Figure fi. Maximin with a Guaranteed Minimum

fedsioii

Procedures

89

Figure 7. Utilitarianism with a Guaranteed Minimum

Z

Z

A

A

Z

B posed " m a x i m i n " s o l u t i o n is represented by the series o f L-shaped indifference curves in figure 6. However, any d i s t r i b u t i o n in the

A guaranteed m i n i m u m is a far weaker and less controver-

quadrants northeast of Z in any of the three charts satisfies the

sial conclusion than a m i n i m u m that must be m a x i m i z e d . Fhe

three features fully as m u c h as does m a x i m i n . After we p r o v i d e

latter p r i n c i p l e can require great sacrifice f r o m all other strata

everyone w i t h Z p r i m a r y goods, we could m a x i m i z e the t o t a l ,

for the sake of t i n y increases at the bottom—increases that m i g h t

as i n figure 7, or we could maximize equality, as indicated by

be above an already acceptable threshold. Suppose four Rawlsian

the 45-degree line in figure 8, or we could fill out the quadrant-

p r i m a r y goods is our definition of such a threshold. Neverthe-

northeast of Z in any other conceivable way. A l l of these options

less, m a x i m i n w o u l d tell us that d i s t r i b u t i o n Y is preferable to

satisfy the three features as much as does m a x i m i n . To require

distribution X:

that the q u a d r a n t northeast of Z be filled out as in figure 6 is t o o s t r o n g a conclusion to d r a w f r o m the assumptions available i n the o r i g i n a l p o s i t i o n . F u r t h e r m o r e , it is a conclusion that w o u l d force us to c o n t i n u a l l y prefer increases in the m i n i m u m over other c o m p e t i n g claims—even w h e n those other competing claims were very significant and the increases in the m i n i m u m were very small indeed.

20

X

Y

4

4.01

15

4.01

20

4.01

50

4.01

So long as we give at least Z p r i m a r y goods to everyone, w e

G i v e n the meager i n f o r m a t i o n about his self-interest available

have satisfied the security level assumed i n the three features. I t is

to an agent i n the o r i g i n a l p o s i t i o n , w o u l d it be rational to decide

an open question w h a t we should do after that. The three features

o n m a x i m i n w h e n another choice strategy that is conservative in

i m p l y only a guaranteed m i n i m u m , not a m i n i m u m that continues

its a t t i t u d e t o w a r d r i s k — t h e guaranteed m i n i m u m — e n s u r e s all

to rise so far as possible.

that was c l a i m e d for m a x i m i n (it satisfies the second and t h i r d

S t r a t e g i e s ©}

Usmmtrutfim

H g u r e 8. E q u a l i t y w i t h a Guaranteed

i m p a r t i e ] Decision P r o c e d u r e s

then rests o n a particular controversial theory of the g o o d and

Minimum

the d o o r has been opened to other controversial theories that can z

provide an equivalent basis for rival principles. It is then open to

A I

j u r i s d i c t i o n a l challenge by the full range of rival theories because it no longer has a plausible claim of strict neutrality w i t h w h i c h to defend itself against charges of bias. The d i l e m m a , i n other w o r d s , amounts to a h a r d choice between the v i o l a t i o n of criterion 1(a) and the v i o l a t i o n of criterion 3. The m i n i m a l interpretation of the threshold maintains a c l a i m to n e u t r a l i t y (but at the cost of radical incompleteness) because it m i g h t seem reasonable, if we have no idea of our particular rational life plan to calculate that the brute "necessaries (to use ,,

A d a m Smith's phrase) required for survival and bare membership in the society c o n f o r m to the security level stated in the three features/ C o m p a r e d to the risk of falling below such a subsistence 2

m i n i m u m , we m i g h t indeed "care very little, if a n y t h i n g " for increfeatures), w i t h o u t c o m m i t t i n g itself to a host of a d d i t i o n a l and

ments above i t . W h y gamble on w i n n i n g the jackpot introduced

d i s t u r b i n g implications? After a l l , once the veil of ignorance is re-

by great inequality if the possibility of such payoffs introduced

m o v e d , we m i g h t be i n one of the higher strata decimated by the

the risk o f starvation or other comparable disasters? In this way,

choice of Y rather than X . A n d if we are at the the b o t t o m , the

Rawls's second and t h i r d features can be given a plausible inter-

tiny increment we get tinder Y counts f o r nothing, by hypothesis,

p r e t a t i o n that seems to be neutral between particular life plans

since we are already above the threshold.

and substantive aims. N o t k n o w i n g w h a t m y life plan w i l l t u r n out

Suppose we arc right i n c l a i m i n g that it is possible to get a partial

substantive conclusion out of Rawls's three features i n

the o r i g i n a l p o s i t i o n . Does this partial conclusion offer any hope of satisfying our criteria?

to be, I must, nevertheless, secure certain subsistence conditions necessary for pursuing any rational life plan at all. But such a m i n i m a l safety net w o u l d be endorsed by v i r t u a l l y

I believe Rawls faces the f o l l o w i n g

every developed country, capitalist or socialist. G i v i n g everyone

d i l e m m a : O n the one hand, i f the threshold defined by the three

at least subsistence leaves almost everything after that an open

features is interpreted m i n i m a l l y , a plausible case can be made f o r

question. For example, should we strive to increase equality, total

neutrality, but at the cost of such radical incompleteness that the

o u t p u t , or the m i n i m u m level after everyone has been given at least

resulting principle is nearly t r i v i a l in its implications. It is so m i n i -

subsistence? W h a t should our priorities be within

m a l i n its demands that v i r t u a l l y any modern state satisfies it (or

defined by Z i n figures 6-8?

c o u l d easily satisfy i t ) . Hence the theory, on this i n t e r p r e t a t i o n ,

get us into the quadrant, but they are insufficient to direct us after

w o u l d violate our nonvacuousness requirement (criterion l [ a j ) .

that. T h e d i f f i c u l t y is that this is where serious debate begins, not

O n the other hand, if the threshold is interpreted ambitiously, then its pretensions to neutrality can no longer be s u p p o r t e d .

21

It

the quadrant

Rawls's assumptions are sufficient to

where it ends. T h e basic p o i n t is that when the security level is set so l o w

Strategies of

^essmstrwitisrt

teiHirfkil

^emieii Pmedares

93

that i t plausibly corresponds to the three features, it leaves almost

ficulty arises w i t h the special conception: a neutral interpretation,

everything unsettled. M o s t i m p o r t a n t for our purposes, the re-

a really " t h i n " theory, does not support these significant substan-

q u i r e m e n t that such a m i n i m a l safety net be satisfied w o u l d be v i r -

tive results; to get the latter, a particular, controversial theory of

tually useless in satisfying c r i t e r i o n 1(a) (nonvacuousness). H o w -

the g o o d must be assumed. "

ever, it is only the m i n i m a l interpretation of Z , the security level, that can m a i n t a i n a plausible c l a i m to neutrality.

2

1

Recall that the doctrine of rational life plans could m a i n t a i n its c l a i m to n e u t r a l i t y only by being purely procedural and i n s t r u -

O n the other hand, if we were to set Z ambitiously—say, t w o

mental. M y r a t i o n a l plan of life is supposed to be the one I w o u l d

cars and a home of one's o w n — w e w o u l d be positing a c o n t r o -

choose for myself w i t h full knowledge of conditions and conse-

versial theory of the g o o d for everyone. The t h i r d feature requires

quences and in accordance w i t h the rational means/ends relations

that we regard a n y t h i n g less than the threshold as an unacceptable

determined by the various counting p r i n c i p l e s .

disaster, w h i l e the second feature requires that we not be inter-

this m u c h i n the o r i g i n a l p o s i t i o n , there is no basis for the strong

ested i n g a m b l i n g for a n y t h i n g m o r e — a t least relative

25

K n o w i n g only

to the risk

p r i o r i t y relations expressed by lexical order. I m i g h t be an aspiring

o f f a l l i n g below i t . " H a v i n g (at the time of this w r i t i n g ) one car but

capitalist whose life plan is not furthered i n the least by the c i v i l

not t w o , I can, personally, quite easily imagine a plan of life where

liberties to w h i c h Rawls gives first p r i o r i t y . As such a capitalist, i

I w o u l d prefer (a) the chance

of becoming a m i l l i o n a i r e i n t r o -

m i g h t prefer to give first p r i o r i t y to the income and wealth Rawls

duced by tolerating inequalities to (b) strict equality but w i t h the

places last. O r m y rational plan of life m i g h t be more directly

guarantee of a second car. The p o i n t is that an ambitious interpre-

furthered by placing fair equality of o p p o r t u n i t y first. Perhaps

t a t i o n of the threshold w i l t depend on a controversial theory of the

I am a member of a racial or sexual m i n o r i t y whose members

g o o d — o n e that conforms to some rational life plans but clearly

place highest p r i o r i t y on equal o p p o r t u n i t y - - e v e n above liberty

not to others, particularly in its attitude t o w a r d risk. For such a

of conscience and political expression (although we m i g h t value

theory of the g o o d , a n y t h i n g less than the second car (or whatever

these h i g h l y as well). M y rational plan of life, in Rawls's precise

else is demanded of the ambitious threshold) must be absolutely

sense, m i g h t be far more effectively furthered by i n v e r t i n g one or

unacceptable. A n d compared to the risk of not getting the second

another of these p r i o r i t y rankings. F r o m the o r i g i n a l p o s i t i o n , 1

car, the prospect of g a m b l i n g to get H o w a r d Flughes's f o r t u n e

simply cannot k n o w whether or not this is the case.

must mean n o t h i n g . Because the ambitious threshold clearly v i o -

T h e p o i n t is that the " t h i n theory of the g o o d " — i f it remains

lates neutrality, it opens the door to other controversial theories

t r u l y t h i n — p r o v i d e s no basis for d e t e r m i n i n g these rankings, one

o f the g o o d as the basis for competing principles.

way or the other. So long as we consider life plans in a purely

A s i m i l a r difficulty arises w i t h the p r i o r i t y rankings embodied

procedural and instrumental way, a plausible c l a i m to neutrality

in the special conception. Once we take account of the qualitative

can be m a i n t a i n e d , but only at the cost of leaving the comparative

differences among the various p r i m a r y goods, we are supposed to

value of the various " p r i m a r y goods" indeterminate.

value liberty, fair equality of o p p o r t u n i t y , and income and w e a l t h

O n the other hand, if we i m p o r t into the o r i g i n a l position a

in lexical order (meaning that no amount, however great, of a

more f u l l - b o d i e d conception of the g o o d — o n e that includes par-

l o w e r - r a n k e d value is w o r t h any sacrifice, however s m a l l , in a

ticular substantive a i m s — t h e n the claim to neutrality among sub-

higher-ranked value). W i t h o u t g o i n g into all the details of this

stantive aims is lost. Rawls has suggested this last possible line of

w e l l - k n o w n controversy, it is w o r t h n o t i n g that the same basic d i f -

revision in more recent articles, where he proposes that a pacticu-

94

lar " m o d e l conception o í a m o r a l p e r s o n " should be assumed i n order to o b t a i n his proposed conclusions/

95

i m p a r t i a l decision Procedures

S t r a t e g i e s of R e c o n s t r u c t i o n

6

sibility are needed to give scope to various self-governing and social capacities of the self.

A c c o r d i n g to this model conception, " w e take moral persons to

(iv) Income and w e a l t h , understood broadly as they must be,

be characterized by t w o m o r a l powers and by t w o corresponding

are all-purpose means (having an exchange value) for

highest-order interests i n realizing and exercising these p o w e r s . "

achieving directly or indirectly almost any of our ends,

T h e t w o m o r a l powers are "the capacity for an effective sense o f

whatever they happen to be.

justice" and the "capacity to f o r m , to revise, and rationally to pur-

(v) T h e social bases of self-respect are those aspects of basic

sue a conception of the g o o d . " The key p o i n t is that in the o r i g i n a l

institutions w h i c h are n o r m a l l y essential if individuals are

p o s i t i o n the agents are to assume that they have "highest-order

to have a lively sense of their o w n w o r t h as m o r a l persons

interests" i n securing the conditions necessary for the exercise o f

and to be able to realize their higher-order interests and

these t w o m o r a l powers: " C o r r e s p o n d i n g to the m o r a l powers,

advance their ends w i t h zest and self-confidence. * 2

m o r a l persons are said to be moved by t w o highest order interests to realize and exercise these powers. By calling these interests

Because o f o u r " h i g h e s t - o r d e r " interests in securing the con-

'highest o r d e r interests, I mean that, as the model-conception o f

d i t i o n s for the exercise of the t w o m o r a l powers, we are, sup-

a m o r a l person is specified, these interests are supremely regula-

posedly, to adopt the principles of the special conception. Once

tive as well as effective. This implies that, whenever circumstances

again, the same issue arises. W h y is it rational to accept these

1

are relevant to their f u l f i l l m e n t , these interests govern deliberation and c o n d u c t . " ' 2

very s t r o n g p r i o r i t y rankings? W h y are we to accept the p r i m a r y goods in the order enumerated, where the slightest sacrifice i n

W i t h these m o r a l powers and their corresponding interests i n

l i b e r t y is n o t w o r t h the greatest possible increase i n equal oppor-

m i n d , Rawls believes that we can get the p r i o r i t y relations i n

t u n i t y , and where the slightest sacrifice in equal o p p o r t u n i t y is

the special conception. H e summarizes this construction of the

not w o r t h the greatest possible increase in income and wealth?

argument as f o l l o w s :

Rawls makes clear that he still adheres to the p r i o r i t y rankings. "' 2

In any case, w i t h o u t the p r i o r i t y rankings, the theory w o u l d fall (:) The basic liberties (freedom of thought and liberty of con-

into intuitionism.

science, etc.) are the background institutions necessary f o r

T o preserve the p r i o r i t y rankings, Rawls w o u l d have us assume

the development and exercise of the capacity to decide

that o u r interest i n l i b e r t y comes first, because the highest-order

u p o n and revise, and rationally to pursue, a conception of

interests i n o u r m o r a l powers are served first by l i b e r t y ; equal

the g o o d . Similarly, these liberties a l l o w for the develop-

o p p o r t u n i t y is second because our next-highest-order interests i n

ment and exercise of the sense of right and justice under

our m o r a l powers are served by equal o p p o r t u n i t y , and so o n .

social conditions that arc free, (ii) Freedom

of movement and free choice of occupation

Clearly, the c l a i m to neutrality has been greatly weakened by the i n t r o d u c t i o n of these assumptions. We are being asked to base-

against a background of diverse opportunities are re-

principles of justice on a particular controversial theory of the

q u i r e d for the pursuit of final ends, as well as to give effect

g o o d or, if y o u w i l l , a particular model conception of a m o r a l per-

to a decision to revise and change them, if one so desires,

son, w h e n other variations w o u l d clearly lead to different p r i o r i t y

(iii) Powers and prerogatives of offices and positions of respon-

rankings and different principles. Once these moves are made,

%

S t r a t e g i e s ©f S e s f t i i s t r a i t i o s

i m p a r t i a l decision ^rased&res

97

the strictly neutral strategy for avoiding jurisdiction problems has

you are, therefore, I should get at least as m u c h . " The difficulty

been abandoned. W h e n we employ such a controversial theory of

is that neutrality, on the strict interpretation, does not p e r m i t any

the g o o d , we can get substantive results, but they can be matched

definite answer to the further question, A t least as m u c h what? A

p o i n t by p o i n t by rival t h o u g h t experiments employing rival theo-

particular, inevitably controversial theory of the g o o d is required

ries o f the g o o d whose neutrality is similarly at issue.

to answer that question; but that is precisely w h a t is barred by

f o c l a r i f y the general issue, it is w o r t h considering a second example of a theory aspiring to strict n e u t r a l i t y . N e u t r a l i t y plays 10

an even more e x p l i c i t role in Ackerman's Social Justice

in the

neutrality. The strict interpretation is clearest i n Ackerman's attempt to

Lib-

rule out u t i l i t a r i a n i s m . We are presented w i t h a dialogue between

eral State— probably the one contemporary effort to reconstruct

" M a n i c " ( w h o likes mountaineering) and "Depressive" ( w h o likes

liberal theory that rivals Rawis's in its a m b i t i o n and systematic

p h i l o s o p h i z i n g ) . The former claims he should get more " m a n n a "

character. N e u t r a l i t y is one of three assumptions that are meant,

because he w i l l derive more u t i l i t y f r o m i t :

together, to constrain l e g i t i m a t i n g conversations about d i s t r i b u tive justice. However, the other t w o assumptions, r a t i o n a l i t y and consistency, w i l l p e r m i t an enormous range of possible d i s t r i b u tions to survive e l i m i n a t i o n .

11

But once neutrality is i n t r o d u c e d ,

A c k e r m a n argues, only his o w n proposal survives. He defines it as f o l l o w s : " N e u t r a l t t y : N o reason is a g o o d reason if it requires the power/holder to assert: (a) that his conception of the g o o d is better than that asserted by any of his fellow citizens, or (b) that, regardless of his conception of the g o o d , he is intrinsically superior to one or more of his fellow c i t i z e n s . "

DEPRESSIVE:

It translates the value of philosophizing and mountaineering into a common yardstick: subjective satisfaction. D E P R E S S I V E : But surely there are other possible yardsticks. Why can't I , for example, construct a calculus that ranks all conceptions of the good in terms of the amount of philosophic wisdom they produce and instruct the computer to tell us how much of that good each of us will produce with the manna, (He does so.)

MANK;:

12

COMPUTER:

For our purposes, the difficulty w i t h this innovative and appeal-

How, then, is the utility number relevant to our discus-

sion?

Depressive scores one hundred units on the wisdom index;

Manic scores 10 units.

ing proposal is that i f it is interpreted strictly, the resulting con-

DEPRESSIVE:

clusions are emptied of substantive content. O n the other hand, if

MANIC:

Why, then, is your yardstick better than mine?

Do i have to answer that?

15

it were to be interpreted more loosely, then no particular p r i n c i p l e

M a n i c cannot answer the question w i t h o u t v i o l a t i n g neutrality

resulting f r o m it w o u l d rest on firm g r o u n d . Rival positions c o u l d

— w h e n interpreted strictly. As the Commander in Ackerman's

then invoke rival l e g i t i m a t i n g dialogues and the same p l u r a l i s m

dialogue concludes:

w o u l d result as that w h i c h f o l l o w e d when Rawls suggested weak-

We search i n v a i n for a neutral yardstick for measuring the 'real'

ening n e u t r a l i t y .

" W e are reaching a dead-end, my friends.

In our terms, the options boil d o w n to a hard

value of different conceptions of the g o o d . To justify one yardstick

choice between violations of c r i t e r i o n I (the emptiness of s t r i c t

over all the other possible ways of r a n k i n g values w i l l require

neutrality prevents any selection of a few most preferred states)

utterances that are inconsistent w i t h at least some of the ideals

and violations of c r i t e r i o n 3, the j u r i s d i c t i o n p r o b l e m .

affirmed by some of your fellow citizens." Hence the objection to

11

Let us focus on the strict interpretation of neutrality. The argu-

u t i l i t a r i a n i s m : " T h e problem w i t h u t i l i t a r i a n i s m is its teleological

ment that passes neutrality is supposed to sanction equality. *' The

character, its e f f o r t to evaluate d i s t r i b u t i o n rules by h o w much

one successful move in the dialogues is " F i n at least as g o o d as

' g o o d ' they produce. Any such effort requires a specification of

3

98

Strategies oï

the g o o d that w i l l he contested by some citizens w h o insist o n

that I a m " i n t r i n s i c a l l y superior" to my competitors. * O n l y if

measuring their g o o d by a different yardstick, one that gives t h e m

equal amounts of manna were assumed at the outset to be the ap-

more manna than their competitors."-

p r o p r i a t e c r i t e r i o n for j u d g i n g that persons are equally well-off,

16

1

W h i l e successful in r u l i n g out u t i l i t a r i a n i s m , this conception of

w o u l d it f o l l o w that d i f f e r i n g distributions y i e l d i n g equal utilities

neutrality is so strict that it can be employed, w i t h equally dev-

were a slight to some conceptions of the g o o d . Yet this w o u l d be

astating results, against the yardsticks Ackerman eventually uses

to assume, a r b i t r a r i l y , a particular and contested solution to the

himself to settle the d i s t r i b u t i o n p r o b l e m . He later permits De-

fundamental issue: w h a t allotments are to be regarded as superior

pressive to argue, supposedly consistent w i t h neutrality, ' i f I ' m

or inferior? T h e case against equal satisfaction w o u l d appear to rest on the

at least as g o o d as M a n i c , I should get at least as much of this T h i s simple argument yields the

passages q u o t e d above objecting to u t i l i t y as a yardstick. But it is

conclusion of equal i n i t i a l shares of m a n n a — a n argument that is

successful, I believe, only if interpreted so strictly that any sub-

later broadened to include b i r t h r i g h t s , education, rights to free

stantive content to a yardstick can be ruled out because it " w i l l be

exchange, and obligations to future generations.

contested by some citizens w h o insist on measuring their g o o d by

stuff that b o t h of us d e s i r e . "

17

Yet any particular yardstick for d e t e r m i n i n g "as m u c h " i n this

y >

Some citizens, in other w o r d s , can always

be expected to disagree about a yardstick for d i s t r i b u t i o n a l ques-

man levels against u t i l i t a r i a n i s m . Even for the simplified d i s t r i b u -

tions because they w i l l do better according to some other possible

t i o n p r o b l e m e m p l o y i n g the imaginary substance manna, a variety

yardstick for evaluating everyone's shares. If any yardstick con-

o f yardsticks m i g h t be devised under w h i c h some persons w o u l d

tested i n this w a y by some citizen is ruled out by neutrality, then

d o far better and others far worse, depending upon their p a r t i c u -

no yardstick w i t h substantive implications can ever be arrived

equal o p p o r t u n i t i e s (or time shares) for employing as much of the

I

a different y a r d s t i c k . "

dialogue can be subjected to the same basic critique that Acker-

lar conceptions of the g o o d . Some obvious possibilities include

1

99

i m p a r t i a l Dedsion Procedures

Keconstrusîton

a

t — c o n s i s t e n t w i t h this demanding conception of neutrality. The d o o r is opened even more widely to such

controversies

manna as one m i g h t like at a given time or equal chances at l o t -

once the debate moves beyond the simplified manna p r o b l e m to

tery tickets for r i c h payoffs, or equal life-support payments doled

the full question of d i s t r i b u t i o n under ideal conditions. Here it is

out i n increments for as long as one m i g h t live. There is no reason

not manna but income and wealth that count as material equality.

to regard identical physical chunks of manna as a yardstick i m -

F u r t h e r m o r e , the argument ranges over genetics, education, and

mune f r o m controversy, w h i l e every other possible specification

obligations to future generations. I n each of these cases, any choice

o f content for equality is regarded as nonncutral.

of a p a r t i c u l a r yardstick is open to controversy. A n y answer to

F u r t h e r m o r e , w h y should equal physical quantities of manna

the question A n equal share of what? w o u l d appear open to the

be compatible w i t h neutrality w h e n equal satisfaction is ruled out

same argument A c k e r m a n employs against u t i l i t a r i a n i s m : w h y

as a neutral solution? If I c l a i m only that 1 should be as satis-

one yardstick f o r measuring shares rather than another?'

10

fied w i t h my share as y o u are w i t h yours, it is hard to see h o w

Even the d i v i s i o n of the general d i s t r i b u t i o n p r o b l e m into a

that amounts to c l a i m i n g that m y "conception of the g o o d is

series of discrete power dimensions (genetics, education, p r o p e r t y

b e t t e r " — f o r I am proposing, i n a sense, to treat our d i f f e r i n g con-

rights, p o l i t i c a l power) is itself a step t o w a r d certain d i s t r i b u t i o n a l

ceptions equally.

Similarly, I may propose such equal treatment

metrics compared w i t h a diversity of possible alternatives. Some

without claiming "unconditional superiority," without claiming

theories m i g h t l u m p these all together and p e r m i t inequalities

100

S t r a t e g i e s o î Meztmsfmtîfan

IPrefes-eme, U t i l i t y , a n d t h e

Democracy and Progress 1. This account ot "Madısoman" democracy has obviously benefited greatly from Robert Dahl's A Preface to Democratic Theory (Chicago; University of Chi­ cago Press, 1956). Furthermore, the majontanan dimension is roughly what he labels "popuhstic." i n labeling the northern dimension Madısoman, i do not. wish to limit Madısoman values to that dimension. For example, Madison would have been more sympathetic to the eastern, or representative, dimension of our scheme than to the western, or direct, dimension. 2. However, while impediments to new policies will prevent tyranny through commission, they will not prevent tyranny through omission. For an extended discussion, see my Tyranny and Legitimacy (Baltimore and London: Johns Hopkins University Press, 1979). For an identification of the verv idea ot democracy w i t h ' l i m i t e d maionty rule" (limited so as to protect minorities?, see Giovanni Sartori, The Theory of Democracy Revisited (Chatham, N . j . : Chatham House, 1987), section 2.4. Sarton's point is a usetul corrective to common usage. 3. D a h i , Preface, p. 132. 4. See Robert Paul Wolff, hi Defense of Anarchism (New York: Harper and Row, 1970). James Buchanan and Gordon'I ullock, in The Calculus of Consent (Ann A r b o r : University ot Michigan Press, 1971), also grant the unanimity rule a privileged status but, unlike Wolft, argue tor departures trom it based on decision costs. 5. See the discussion below, in section 2.6, ot the limitations of the unanimity rule. 6. For some creative proposals along these lines, see Benjamin Barber, Strong Democracy: Participatory Politics for a Netu Age (Berkeley and London: Uni­ versity of California Press, 1984), esp. chap. 10. 7. In terms of recent American experience, the movement of the Democratic party trom the McGovern reforms m the presidential selection system back to greater control by party notables is a movement roughly trom A to B and back again—a movement supported by differing images ot democracy.

Obligation (Princeton: Princeton University Press, 1979!, For his definition ot the requirement, see p. 43. M y claim will be, contra Simmons, that mv proposal satisfies the particularity requirement.

2 2 Beyond

lntuitionism

1 . Maurice Cranston, Freedom: A New Analysis (London: Longmans, 1953), p 6.5. For an incisive tour ot the many uses of the term liberalism, see Gio­ vanni Sarton, Pbe Theory of Democracy Revisited (Chatham, N.J.: Chatham House, 1987), chap. 15. 2. Ronald D w o r k i n , "Liberalism," in Stuart Hampshire, ed.. Public and Private Morality (Cambridge: Cambridge University Press, 1978), p. 115. 3. "Government must treat people as equals" in the sense that " i t must impose no sacrifice or constraint on any citizen in virtue ot an argument that the citizen could not accept without abandoning his sense ot his equal w o r t h " (Ronald D w o r k i n , "Neutrality, Equahtv and Liberalism," m Douglas Macl.ean and Claudia Mills, eds.. Liberalism Reconsidered [ i b t o w a , N.J.: Rowman and Allanheld, 1983}, p. 3). 4. See Bruce Ackerman, Social Justice in the Liberal State (New Haven and Lon­ don: Yale University Press, 1980), chap. 1. An excellent selection of writings on utilitarianism can be found in Amartya Sen and Bernard Williams, eds., Utilitariatttsm and Beyond (Cambridge: Cambridge University Press, 1982). 1

See also Peter Singer, Practical Ethics {Cambridge: Cambridge University Press, 1979). 5. See John Rawls, A Theory of justice (Cambridge; Harvard University Press, 1971), pp. 34—40. Rawls's central ambition is, ot course, to develop a con­ structive alternative to mtuinomsm. 6. Brian Barry, Political Argument (London: Routiedge and Kegan Paul, 1965;, pp. 4—8, and Brian Barry and Douglas W. Rae, "Political Evaluation," in Ered I . Greenstem and Nelson Polsby, eds., Flandbook of Political Science (Reading, Mass.: Addison-Wesley, 1975), pp. 353-57. 7. See Alasdair MacSntyre, After Virtue (Notre Dame, Ind.: University of Notre Dame Press, 1981), p, 229, tor similar criticisms ot the "weighing" metaphor. 8. This claim applies to the production ot a tuli-fledged systematic alternative, but not to the strategy I w i l l develop tor a partial alternative m part 3. 9. Ackerman, Social justice, p. 14. 10. if the state ot theoretical debate is not actually robust, then the test becomes

2. / Criteria for an Acceptable Theory i. For an extended argument that no theory ot obligation can satisfy the par­ ticularity requirement, see A . John Simmons, Moral Principles and Political

partially hypothetical: we have to ask whether a theory would differentiate in the required way among alternatives, if the state of debate permitted us to identify a broad range ot alternatives from which to choose.

Motes t o P a g e s 4 9 - 5 5

U . Rawls, Theory, pp. 8-9, 245-47, For further discussion of ideal versus nonldeal theory, see my Tyranny and Legitimacy: A Critique of Political Theories (Baltimore and London: Johns Hopkins University Press, 1979), chap. 7, 12. I wilt also follow Rawls in limiting ideal theory, at least initially, to the nationstate considered m isolation: " i shall be satisfied it it is possible to formulate a reasonable conception of justice for the basic structure of societv conceived as a closed system isolated from other societies" (Rawls, Theory, p. 8). External threats to the nation-state raise an issue for Rawls of nonideal or partial compliance theory. In applying our argument to the nonideal case, some exceptions for national security may thus he required. For some useful observations on how to draw these narrowly, see Thomas I . Emerson, The System of Freedom of Expression (New York: Random Fiouse, 1970), chap. 4. 13. [ take the term moderate scarcity from Rawls, who explains it thus: "Natural and other resources are not so abundant that schemes of cooperation become superfluous, nor are conditions so harsh that fruitful ventures must inevitably break down. While mutually advantageous arrangements arc feasible, the benefits they vteld fall short of the demands men put forward" (ibid., p. 127}.

Notes t o P a g e s 5 6 - 6 4

215

3, "The autonomous man, insofar as he is autonomous, is not subject to the wilt of another" (ibid., p, 14). 4. For further implications of the unanimity rule, see Douglas Rae, " 1 he Limits of Consensual Decision," American Political Science Review 69, no. 4 (December 1975), pp. 1270-94. See also my Tyranny and Legitimacy (Baltimore and London: fohns Hopkms University Press, Í979), chap. 8. s\ Of course, sunset laws might to devised to limit some of these conflicts. H o w ever, given Wolff's complete prohibition on violations of autonomy, differences of degree or in the number of violations would not make any difference to the basic argument. 6. John Locke, Two Treatises of Government, ed. Peter Laslett (New York: N e w American Library, 19b5), p. 392. 7. Hanna Pitkin, "Obligation and Consent," in Peter Laslett et al-, eds.. Philosophy, Politics and Society, 4th senes ( O x f o r d : Basil Blackwell, 1974), p. 55. 8. í say "some" grounds because the basis might, at best, be viewed as prima facie. Consider Hanna Pitkin's example of the minor official in Nazi Germany who has given his express consent by taking an oath of office ("Obligation and Consent," pp. 6 4 - 6 5 ) .

2.3 Political Thought Experiments

9. Wolff is at his best in his pungent critiques of the classical arguments for majority rule. See Defense, pp. 38-58.

t . Ackerman's theory employs neutrality as a fitter. See the discussion below.

10. See my Tyranny and Legitimacy, chaps. 1 , 2, and 8.

2. As we w i l l see in parts 2 and 3, the hypothetical category includes realistic

11. Joseph Tussman, Obligation and the Body Politic (New York: Oxford Uni-

thought experiments as well as purely imaginary cases (such as Rawls's origi-

versity Press, 1965), pp. 8, 21-22, 37.

nal position). A realistic thought experiment, such as Nozick's argument from

12. As Dahl notes, the tyranny problem recurs "like a nagging tooth." See his A

the state of nature to the minimal state, is hypothetical because the minimal

Preface to Democratic Theory (Chicago: University of Chicago Press, 1956),

state is being advocated for us based on the decisions of imaginary people. 3. A good account of these ambiguities, along with specimen illustrations, can he found in Hannah Pitkin, "Obligation and Consent," in Peter I.aslett et at., eds., Philosophy, Politics and Society, 4th series (Oxford: Basil Blackwell, 1974). 4. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 5. 5. See section 3.1 below. 6. I t is in this sense that the doctrine of primary goods is "ideal-regarding" as explained in section 1.2.

p. 124. 13. Of course, the unanimity rule, at the extreme, gives even one person a veto and so makes frustrating policy changes from the status quo easiest of all. 14. Later 1 wilt employ a solution to the problem of obligation to solve the legitimacy problem. However, my strategy wilt be very different from that of actualconsent theory, in the terminology just introduced, I w i l l employ a category 4 theory rather than a category 1 theory. 15. Michael Walzer, Spheres of Justice; A Defense of Pluralism and Equality (New York: Basic Books, 1983). 16. Consent and choice are here being used broadly enough to cover not only express acts, but also tacit or implicit acts of agreement to, or acknowledgment

2.4 The Quest (or Consent 1. Robert Paul Wolff, In Defense of Anarchism (New York: Harper and Row, 1970S, p. 23. 2. Ibid., p p . 23 and 24.

of, a shared convention or belief. 17. Ibid., p. 9. IS. Ibid., pp. 312 and 29 (emphases added). 19. John Rawls, A Theory of fustice (Cambridge: Harvard University Press, 1971), pp. 3 0 2 - 0 3 .

216

Noies t o Pages 6 4 - 7 4

Notes t o Pages 7 6 - 8 0

20. Harold Lass well and Abraham Kaplan, Power and Society (New Haven: Vale University Press, 1950), pp. 55-56. 2 LWahet,

to be bevond the means ot almost everyone" (ibid., p. 68 L E here is the further issue ot "free-floating anxiety" tor which people could not be compensated.

Spheres, p. ,11.1,

22. M v o w n proposal in part 3 clearly owes a debt to Walzer's book. But that debt takes the form of proposals which take the entire approach out of category i and into category 4. 23. Tyranny is defined as crossing the boundaries of the spheres as determined hy the shared understandings. See Walzer, Spheres, p. 20. 24. Barnngron Moore, j r . , In/ustice: The Social Bases of Obedience and

217

Nozick speculates that "market compensation" (what people would consent to, in advance, through negotiation) might be required instead ot merelv " f u l l compensation." ("Full compensation is an amount sufficient, but barelv so, to make the person afterwards say he's glad, not sorry, it happened" [ibid.].) While market compensation is more demanding, the difficulties I am discussing depend only on the weaker requirement ot full compensation.

Remit

(White Plains, N.Y.: M . E, Sharpe, 1978), chap. 2. However, Moore, in contrast to Walzer, rejects relativism (see chap. 13).

[ i . [ here is no provision for educational services in the minimal state as described in Nozick's book. We might, however, consider this an oversight and focus the argument on the extension of other services. 14. Nozick, Anarchy, p. 114.

2.5 Realistic

Hypothettcals

1. I interpret a claim that X actually is on at least as high an indifference curve as she was previously as falling within this category of strict agreement. 2. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 5.

15. Consider some ot the independent Alaskans depicted bv John McPhee playing this role m Nozick's scenario, 16- Nozick appears to flirt with this possibility in his discussion ot the epileptic driver who should be compensated tor being prohibited from driving only to the degree to which he is relevantly disadvantaged. Hence, if he were given taxi tare, and so was not really disadvantaged, he would not be able to claim a

3. Ibid. 4. Ibid., pp. 58 and 331. 5. Ibid., p p . 3 0 - 3 3 . The ontv possibility tor exceptions to the side constraints that Nozick mentions is "the question . , . whether they may be violated in order to avoid catastrophic moral horror, and it the latter, what the resulting structure might look like." Rather than deciding this question, he says it is "one I hope largely to avoid" (p. 30, note). 6. Ibid., pp. 23, 117-18.

rights violation, even if he did not tike taxis (and hence was not on as high an indifference curve after compensation was paid). Perhaps if the epileptic driver had already been incorporated into the state—and thus had tost the right to self-help enforcement—there might be an argument tor less than full compensation (because the state had already been established as the final arbiter of when the epileptic's rights were violated). But for our problem, the independents, bv definition, retain the right to self-help enforcement. The very right that is being taken away is the right to fudge when and to what degree their

7. Ibid., pp. 110-14.

rights have been violated. For the state to supplant the judgment ot the i n -

8. ' I he argument would then have about the same status as that suggested bv

dependents with its o w n judgment about whether compensation is sufficient

the Yiddish proverb " I f mv Grandmother had wheels, she'd be a trolley car."

is to take awav the right to self-help enforcement m the determination ot the

W i t h sufficiently implausible assumptions, we can find a basis for almost any

value of self-help enforcement. Anything less than full compensation should

conclusion.

plausibly be interpreted as a rights violation on this issue. But full compensa-

9. Nozick, Anarchy, pp. 25, 113-15. 10. Actually paying compensation makes up for a rights violation. This kind of compensation requirement is, of course, quite different from the hypothetical compensation tests used tn cost-benefit analysis (Kaldor-Hicks, Scirovskv, etc.), whose ultimate point is utilitarian but for which the compensation does not have to be paid. For more on the latter, see 1. M . D , Little, A Critique of Welfare Economics,

tion leads to a more than minimal state. See Anarchy, pp. 79-87, for Nozick's discussion ot the epileptic driver case. ¡7. For an application of this general argument to another case in category 2, David Gauthier's Morals hy Agreement, see my "Bargaining, justice and Justification," Social Philosophy and Policy 5, no. 2 (Spring 1988), pp. 4 6 - 6 4 .

2d ed. (Oxford: O x f o r d University Press, 1957).

U . Nozick, Anarchy, p. 63, and also the definition on p. 57. 12. Ibid., p. 66. Suppose, however, that the eccentric attempted to compensate everyone w h o felt fear as a result of his actions. "T his would be so expensive as

2.6 impartial Decision Procedures 1. See section 2.7 below (tor a discussion ot Dworkm's notion) and Peter Singer, Practical hthics (Cambridge: Cambridge University Press, 1979), pp. 12-13.

218

Holes t o Pases 8 7 - 9 4

Kotes t o Paces 8 0 - 8 7

2. Excellent discussions of these ambiguities can be found m Alan Gewirth, "The Golden Rule Rationalized," Studies in Ethical Theory, vol. 3 of Midwest Studies in Philosophy (1978), pp. 133-47, and J. L. Mackie, Ethics: Inventing

219

t 9 . I used similar charts in appendix B of my Tyranny and Legitimacy to make a different argument. 20. For some of maximin's bizarre implications, see Douglas W. Rae, " A Principle of Simple Justice," in Lasiett and Fishkm, Philosophy, esp. pp. 150-52.

Right and Wrong (New York: Penguin, 1977), chap. 4. 3. John Rawls, A Theory of justice (Cambridge: Harvard University Press, 1971),

2 1 . See Brian Barry, The Liberal Theory of Justice (Oxford: O x f o r d University

pp. 154-56; John C. Harsanyi, " M o r a l i t y and the Theory of Rational Be-

Press, 1973), chap. 9, where the ambitious interpretation of the threshold in

haviour," »t Amartya Sen and Bernard Williams, eds., Vttlitartamsm and Be~

terms of a satiation point for wealth is subjected to a sustained critique.

yond (Cambridge: Cambridge University Press, 1982). Rawls also develops

22. Adam Smith defined the "necessaries" as including "not only the commodities which are indispensably necessary for the support of lite, but whatever the cus-

the average utility argument on pp. 164-65 of A Theory of Justice. 4. See Singer, Practical Ethics, chap. 1 ; Rawls, Theory, pp. 136-42; and Law-

tom of the country renders it indecent for creditable people, even of the lowest

rence Kohlberg, "Justice as Reversibility," in Peter Lasiett and fames Fishkm,

order, to be w i t h o u t " (emphasis added). Within the latter category, Smith i n -

eds.. Philosophy, Politics, and Society, 5th series (New Haven: Yale University

cluded a linen shirt and leather shoes as necessary in his own time (because,

Press, 1979).

for example, "a creditable day-labourer would be ashamed to appear in public

5. According to Rawls, the "social primary goods" that are "at the disposition of society" include "rights and liberties, powers and opportunities, income and w e a l t h " {Theory, p. 62). In Ackerman's thought experiment, "manna is infinitely divisible and malleable, capable of transformation into any physical object a person may desire" {Social Justice, p. 31). For a critique of Ackerman, see section 2.2 above. For a critique of utility, see section 2.7.

without a linen shirt"). See Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (New York: Modern Library, 1937), book 5, chap. 2, pp. 821-22. For some of the difficulties in evaluating subsistence needs, see my Tyranny and Legitimacy, chap. 5. 2 3 . 1 believe this comparative view of the three features is the most sympathetic and plausible interpretation. In other words, from the original position, com-

6. Thomas Nagel, "Rawls on justice," m Norman Daniels, ed., Reading Rawls:

pared to the risk of falling below the threshold, we care little, if at a l l , for

Critical Studies of "A Theory of Justice" (New York: Basic Books, 1975), p. 8

increases above it. This ime of reasoning naturally leads us to something close

(emphasis added).

to subsistence and a tenable claim to neutrality. Unless this comparative view

7. The moral point of view is formalized in the sense that the assumptions pro-

is adopted, i t seems implausible that the very same point at which we become

vided (or permitted by) the decision procedure are spelled out with sufficient

satiated with wealth (not caring for further increments) is the point at which

rigor and clarity to determine a unique ultimate conclusion {or, at least, that

anything less is a disaster. For the satiation view, see Barry, Liberal Theory, chap. 9.

is the aspiration).

24. For Rawls on lexical priority, see Theory, pp. 42—45 and 60—65. For some

8. Rawls, Theory, p. 395. 9. John Rawls, "Fairness to Goodness," Philosophical Review 84

(October

1975), p. 537. 10. Rawls, Theory, p. 4 2 1 . 11. Ibid., pp. 413 and 408. See also pp. 4 1 6 - 1 7 .

excellent criticisms of Rawls's lexical rankings, see Daniels, Reading Rawls, esp. the articles by Daniels, Femberg, Scanlon, and Barber. 25. The counting principles require only that I choose effective means for realizing my aims, that 1 choose more inclusive plans, and that I take account of

12. Ibid., pp. 423 and 432.

likelihoods (when I have appropriate information). See Rawls, Theory, pp.

13. The m a x i m i n formulation of the general conception appears in the final state-

411-13.

ment of the principle on p. 303 of A Theory of Justice.

26. John Rawls, "Kantian Constructivism in Moral Theory: The Dewey Lec-

14. Ibid., pp. 3 0 2 - 0 3 .

tures 1980," Journal of Philosophy 77, no. 9 (September 1980), pp. 515-72.

15. Ibid., p. 408.

For a useful assessment of the shift, see William A . Galston, " M o r a l Person-

16. H o w , m other words, is i t supposed to yield the maximin distribution of pri-

ality and Liberal Theory: John Rawls's Dewey Lectures," Political Theory 10,

mary goods in the general conception and the lexical priority of liberty over

no. 4 (November 1982). See also Rawls, "justice as Fairness: Political, N o t

equal opportunity over income and wealth in the special conception?

Metaphysical," Philosophy and Public Affairs 14, no. 3 (Summer 1985), pp.

17. Rawls, Theory, p. 155. 18. I b i d . , p. 154.

223-51. 27. Rawls, "Kantian Constructivism," p. 524.

28. Ibid., p. 526.

221

Notes t o Pages 1 0 0 - 1 0 3

Notes t o Pages 9 5 - 9 9

220

variant ot a fundamental thought experiment. 1 he difficulty tor our purposes is

2V. Sec Rawls, "Justice as Fairness," pp. 227—28.

that when Ackerman's vision is taken in this pluralistic spirit, the basis it might

30. In the argument that follows I expand on some points I made m "Can 1 here

offer tor solving the jurisdiction problem will have been lost, its prescriptions

tie a Neutral Theory o l Justice?" Ethics 93, no. 2 (January 1983), pp. 348-56.

can then be evaded by rival theorists employing the same basic strategy (appeal

3 1 . "Rationality," m Ackerman's view, is merely the requirement that questioning

ro an impartial thought experiment), To the extent thev provide us with sub-

not be suppressed and that "reasons" be given instead (see Social justice, p. 4).

stantive conclusions, Rawls and Ackerman are not alone m reaching this result.

Ackerman later argues that "the reason advanced by a power wielder on one

I have, however, concentrated on them here because they represent, in my view,

occasion must not be inconsistent with the reasons he advances to justify his

the most powerful attempts to employ this strategy ot combining an impartial

other claims to power" (p. 7). 32. i b i d . , p. 11. 33. Once again, the basic difficulty is the dilemma between substantively significant conclusions that lack a firm basis and firm conclusions that tack substantive significance. 34. The general version of the argument yields initial equality of manna or material resources (Ackerman, Social justice, section 14). Once the full diversity of goods available for distribution over time is taken into account, a more com-

thought experiment with the neutral consideration of interests. 41 For a discussion ot justice in the distribution of esteem, see William f. Goode, The Celebration of Throes: Prestige as a Control System ^Berkeley: University of California Press, 1978), esp. chaps. 13 and 14. 42. Ackerman, Social Justice, pp. 3 - 4 . For a catalogue ot contested kinds of power relations, see Robert E. Gooden, Manipulatory Politics (New Flaven and London: Yale University Press, 1980). 43. See Douglas Rae et al., Equalities (Cambridge: Harvard University Press,

plicated conception of "undommated equality" is reached. See Social justice,

1981), for a sustained demonstration ot the many substantive inequalities

pp. 2 8 - 2 9 , tor a hill statement.

compatible with the abstract idea ot equality.

35. Ibid., p. 48. 3b. Ibid., pp. 4 8 - 4 9 (emphasis added). 37. Ibid., p. 56.

2-7 Preference, Utility, and the Good

38. Recall that in this science fiction scenario, the measurement problems arising

t . Brian Barry, Political Argument {London: Routledgc and Kegan Paul, 1965),

from interpersonal comparisons have been set aside m order to give the utili-

pp. 3 8 - 4 1 . See also my Tyranny and Legitimacy {Baltimore and London:

tarian the benefit of the doubt. See Ackerman, Social Justice, pp. 4 5 - 4 9 , 265.

Johns Flopkins University Press, 1979), chap. 3, where I borrow [his distinc-

39. Ibid., p. 49.

tion from Barrv but develop i t m a slightly different way.

40. For a spirited defense of his basic claim that, at the very least, his o w n proposal

2. R. M . Hare, " E t h i c a l ! heory and Utilitarianism," in Amarrya Sen and Bernard

clearly passes neutrality, see Ackerman, "What Is Neutral about Neutrality?"

Williams, eds., Utilitarianism and Beyond (Cambridge: Cambridge Univer-

Ethics 93, no. 2 (January 1983), pp. 3 7 2 - 9 0 . '1 here, however, Ackerman does

sity Press, i982), p. 26. O n the tradition of the impartial spectator, see Adam

admit the theoretical possibility that his neutrality constraint might be com-

Smith, TheTheoryof

patible with radically different metrics for measuring outcomes. " I t may be

pp. 22, 3 1 - 3 8 , 4 1 , 7 1 , 161-62, 2 4 7 - 4 9 . See also fohn Rawls, A Theory of

possible to produce a nonpreclusive model [one that does not rule out, by

justice (Cambridge: Fiarvard University Press, 1971), pp. 183-92.

definition, the power struggles characteristic of the w o r l d as we know it] that

Moral Sentiments (Indianapolis: Liberty Classics, 1969),

3. Flare, "Ethical Theory," p. 30. For more on Hare's grappling with the fanatic,

analyzed Everyman's power struggle in a radically different way—-one that

see his Ireedom and Reason ( O x f o r d : Oxford University Press, 1963), chap. 9.

did not at all resemble the way I have used the basic descriptors in my model:

4. Hare, "Ethical Theory," p. 30. In his Moral Thinking { O x f o r d : Clarendon

"genes," "education," "manna," "transactional structure," "Everyman." The

Press, 1981), chap. 10, Hare claims that pure fanatical preferences such as the

outcomes of neutral dialogue in such a world would doubtless yield a very dif-

Nazi's w i l l necessarily disappear through the process ot moral umversahza-

ferent conception of undommated equality—though it is hazardous to predict

tion. The Nazi, if he imagines himself in the place ot jews, will necessarily

the differences until the rival model is produced" (p. 383, emphasis added).

lose his pure tanatical Nazi preferences. This strong claim is a sharp departure

The argument developed here offers no obiection to Ackerman's vision of the liberal state (or to Rawls's) once it is considered as part of such a family of liberal first principles—each of which makes symmetrical claims trom its o w n

from the position Hare took in Ereedom and Reason. For an incisive critique of this last strategy, see Bernard Williams, Ethics and the Limits of Philosophy (Cambridge: Harvard University Press, 1985), pp. 82- >2. l

222

N o t e s t o Pages 1 0 3 - 1 1 0

Holes t o Pages 1 1 1 - 1 2 6

5. For more on this kind of counterexample directed at utilitarianism {and rival

n

223

i v "Justice and Rationality: Some Objections to the Central Argument m

theories that share certain of its features), see my Tyranny and Legitimacy,

Rawls's Theory," American Political Science Review 69, no. 2 (June 1975/,

esp. chaps. 1 , 2, 10, and 11.

pp. 615-29. Brian Barry (who, as noted earlier, originated the want-regarding/

6. Ronald D w o r k i n , Taking Rights Seriously (Cambridge: Ftarvard University

ideal-regarding distinction) applies it to Rawls in A somewhat different way,

Press, 1977), esp. chap. 9. For comparable efforts to distinguish private- and

classifying Rawls's doctrine of primary goods as a want-regarding conception

public-regarding preferences, see Brian Barry, Political Argument, pp. 63¬

at one remove" (The Liberal Theory of Justice [Oxford: O x f o r d University

64, and my Tyranny and Legitimacy, pp. 2 6 - 2 8 . For a critique of Dworkin's

press, 1973|, p. 22). Here Í draw the line diflerentlv so as to place primary

strategy to rehabilitate utilitarianism, see Fi. L. A Hart, "Between Utility and

goods in the ideal category. Rawls classifies his own argument this way, as

Rights," in Alan Ryan, ed., The Idea of Freedom ( O x f o r d : O x f o r d University Press, 1979), pp. 7 7 - 9 8 .

Barry notes (p. 23). 19. See Gerald D w o r k i n , "Paternalism," in Peter Lasiett and ¡ames S. Fishkm,

7. Ronald D w o r k i n , " A Reply," in Marshall Cohen, ed., Ronald Dworkin and

cds., P/)i/osopijy. Politics, and Society, 5th senes (New Haven and London:

Contemporary Jurisprudence (Totowa, N.J.: Rowman and Altanheld, 1983),

Yale University Press, 1979), pp. 7 8 - 9 6 , for persuasive arguments m favor of

p. 284.

some weak paternalistic judgments.

8. Ibid., p. 286.

20. A n example attributed to Robert Nozick in D w o r k m , "Paternalism," p. 92.

9. John C. Harsanyi, " M o r a l i t y and the Theory of Rational Behaviour," in

2 1 . Barrington Moore, Jr., Injustice: The Social Bases of Obedience and Revolt

Amartya Sen and Bernard Williams, cds., Utilitarianism and Beyond (Cam-

(White Plains, N . Y . : M . E . Sharpe, 1978).

bridge: Cambridge University Press, 1982), p. 56. 10. For some further arguments that utilitarianism cannot consistently be selective among preferences, see Bernard Williams, " A Critique of Utilitarianism," in j . J . C . Smart, Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1973), pp. 77-150; see esp. section 6.

3. J Toward

Reconstruction

1. I set aside the issue whether such strategies can solve the particularity requirement—whether, for example, they lead to an obligation to support a particular

11. See my Tyranny and Legitimacy, chap. I ,

just society, or just societies in general.

12. Lionel Robbins, "Interpersonal Comparisons of Utility: A Comment," Economic Journal 48, no. 192 (1938), pp. 6 3 5 - 4 1 .

3.2 The Legitimacy Problem

13. [hid., pp. 636 and 637. Robbins is quoting a remark of Jevons. 14. As I. M . D . Little notes in discussing these Paretian limitations, " I f the actual compensation of all losers is required before any economic change can be said to be good, then probably no good economic changes can occur. N o change of any significance in the real w o r l d could ever be made without harming some people" (A Critique of Welfare Economics, 2d ed. [Oxford: O x f o r d University Press, 1957j, p. 120). 15. W i l l i a m j . Baumol, EconomicThcory

1. I rake the term ideal theory from Rawls; see the discussion below. 2. Ronald D w o r k i n , "The Original Position," in Norman Daniels, ed., Reading Rawls: Critical Studies of "A Theory of Justice" (New York: Basic Books, 1975). 3. Everyone may have an obligation without the strength of that obligation always being overriding. Same members may, of course, have even stronger

and Operations Analysis,Mhtd.

(Engte-

w o o d Cliffs, N.J.: Prentice-Hall, 1977), p. 530. 16. Little, Critique, p. 87. 17. For an example of distributional weights, see Burton Weisbrod, "Income Redistribution Effects and Benefit-Cost Analysis," in Samuel Chase, Jr., ed.,

conflicting obligations in special cases. A state may be legitímate and still provide some members with grounds for justified civil disobedience. 4. Note to Wollheim's paradox and to the discussion of it m John Rawls, "Legal Obligation and the Duty of Fair Play," in Sidney Fiook, ed.. Law and Philosophy {New York: New York University Press, 1964), pp. 6-8.

Problems in Public Expenditure Analysis (Washington, D , C ; Brookings Insti-

5. I say "acceptable account" because it might be possible to do awav with all

tution, 1976), pp. 177-213. For some difficulties in these economic applica-

dissent and disagreement under realistic conditions, but only at a cost in what

tions of utilitarianism, see the articles by J. A, Mirrlees and Peter Hammond in Sen and Williams, Utilitarianism and Beyond. 18. For a critique of Rawls's doctrine of primary goods along these lines, see

we termed indoctrination problems. 6. See, for example, John Rawls, "Justice as Fairness: Political, N o t Metaphysical," Philosophy and Public Affairs 14, no. 3 {Summer 1985), pp. 2 2 3 - 5 1 .

Notes t o Pages 1 4 0 - 1 4 6

Notes t o Pages 1 2 7 - 1 4 0

7. See Giovanni Sarton, The Theory of Democracy Revisited (Chatham, N.J.: Chatham House, 1987), section 5.4. See also Kar! Deutsch, The Analysis of International Relations (Englewood Cliffs, N.J.: Prentice-Hall, 1968), pp 101-10.

225

14. John Rawls, "Legal Obligation and the Dutv of Fair Plav," in Sidney H o o k , ed., Law and Philosophy (New York: New York University Press, 1964). Rawls defines his principle of fair play on pp.9-10. 15. Additional benefits can, of course, be provided, but the obligation to support the practices in question follows from the receipt of essential benefits (provided

3.3 Legitimacy and Obligation

our other conditions apply as well). 16. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974),

1. "The living cremation of the satt was always m theory voluntary, but if we are to judge from later analogy, social and family pressure made i t virtually obligatory on some high-caste widows, especially those of the warrior class" (A. L. Bashara, The Wonder That Was India [London: Sidgwick and Jackson, 1954J, p. 188).

p. 93 17. Ibid., pp. 94 and 95. 18. For a subtle and insightful attempt to reconstruct the fairness argument, see

2. "Some medieval writers roundly declare that the sati, by her self-immolation,

tive benefit be " w o r t h its cost to each recipient" (p, 623), a position that ¡ w i l l

expunges both her own and her husband's sins, and that the two enjoy together 35 million years of bliss in heaven" (ibid,). 3. In addition, it must be asked whether such a practice could he characterized as providing essential benefits.

Richard Arneson, "The Principle of Fairness and Free-Rider Problems," Ethics 92 (July 1982), pp. 6 1 6 - 3 3 . Ffowever, Arneson would require that the collecdispute below. 19. M y thanks to Lauren Rosenbloom for suggesting this example in class discussion at the University of Texas.! later encountered an Israeli example applied to these questions in George Klosko, "Presumptive Benefit, Fairness and Political Obligation," Philosophy and Public Affairs 16, no. 3 (Summer 1987), pp.

4. For an illuminating discussion, see Richard Wasserstrom, "Racism and Sexi s m " in Philosophy and Social Issues: five Studies (Notre Dame: University of Notre Dame Press, 1980).

20. See note 18 above.

5. See the discussion of background conditions in section 3.5.

2 ! . Note that the basic character of our argument would not be changed if Arne-

6. See, for example, George Frednckson, White Supremacy: A Comparative Study in American and South African History (New York: O x f o r d University Press, 1981). 7. See Barrington Moore, Jr., Injustice: The Social Bases of Obedience and Revolt (White Plains, N . Y . : M . E. Sharpe, 1978), p. 6 1 . 8. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (New Y o r k : Modern Library, 1937), book 5, chap. 2, pp. 821-22. 9. Karl M a r x , Capital, vol. 1 (New York: Vintage Books, 1977), p. 275 (book 1, part 1 , chap. 6).

241-59.

son's proviso were added. Such a move would simply restrict the range of alternative practices that were both acceptable and feasible.

3.4 Liberty of Political Culture 1.1 mean "political" to apply to all three areas—expression, belief, and association. Ffowever, the modifier is interpreted according to the broad definition in the next paragraph. 2. For an argument that places simitar emphasis on freedom of political expres-

10. Moore, Injustice, p. 59.

sion and association as constituting a core value m the liberal-democratic

11. Moore concludes: " I t was a system of rights and duties that was regarded as

tradition, see Alexander Meiktejohn, Political Freedom {New York: Harper

legitimate by its victims." H e also singles out the "Untouchable caste councils which punished individual Untouchables who failed to live up to their obligations under their o w n systems" (ibid., p. 60).

and Brothers, 1948; repr. 1979). 3. Thomas Scanlon, " A Theory of Freedom of Expression," Philosophy and Public Affairs I , no. 2 (Winter 1972), pp. 2 0 4 - 2 6 , and "Freedom of Expression

12. For a penetrating and ambitious attempt to provide an account'of " m i n i m u m

and Categories of Expression," University of Pittsburgh Law Review 40, no. 4

standards of provision" that is very close in spirit to the notion of "essen-

(Summer 1979), pp. 519-50. For Scanton's criticism of his o w n previous posi-

tial benefits" offered here, see David Braybrooke's Meeting Needs (Princeton:

tion, see pp. 5 3 2 - 3 4 of the latter article. In his new position, the "ultimate

Princeton University Press, 1987).

sources of justification relevant to . . . expression are the relevant partici-

13. H . L A . Hart, " A r e There Any Natural Rights?" Philosophical Review 64 (April 1955), p. 185.

pant, audience and bystander interests and requirements of distributive justice applicable to their satisfaction" (p. 535).

226

Notes to Pages 1 5 1 - 1 5 5

Notes t o Pages 1 4 6 - 1 4 9

227

4. Berlin only needs to respond to this issue to the extent that his argument is, irt

W i l l i a m Brennan in blew York Times v. Sullivan that the libel laws need to be

tact, a defense ot a particular conception of liberty, in revisions ot that argu-

evaluated "against the background of a profound national commitment to the

ment, he qualified the sense in which it could be taken as a defense of liberty.

principle that debate on public issues should be uninhibited, robust and wide-

Rather, the argument is really a defense of value pluralism. In a note to the

open, and that it may well include vehement, caustic, and sometimes unpleas-

introduction to Four Essays, he explains: " i have therefore revised the text

antly sharp attacks on government and public officials." From our standpoint,

to make it clear that [ am not offering a blank endorsement of the negative

that decision was important for the "breathing space" which the libel laws

concept as opposed to its positive twin brother, since this would itself consti-

had to leave for political dialogue. See Neiv York Times v. Sullivan, 376 U.S.

tute precisely the kind ot intolerant monism against which the entire argument

254 (1964), at 270 and 272.

is directed" {Four Essays on Liberty [New York: O x f o r d University Press,

12. See Murray Schumach, The Face on the Cutting Room Floor (New York:

1970}, p. Ivni). For Berlin's combination of "pluralism" and faliibihsm, see

M o r r o w , 1964), chap. 4, for some interesting and sometimes bizarre cases ot

" T w o Concepts of Liberty," ibid., pp. 167-72. For a greatly overstated version

political blacklisting in Hollywood,

ot this problem m Berlin, see Leo Strauss, "Relativism," m Helmut Schoek and

13. One of the key demands in the boycott bv blacks ot white merchants in

James W. Wiggins, eds.. Relativism and the Study of Man (Princeton, N.J.:

iV.A.A.C.P. v. Claiborne Hardware Co. (a boycott which was granted First

Van Nostrand, 1961).

Amendment protection for its nonviolent aspects) was that the merchants end

5. For some general issues confronting the strategy of founding liberty on an idea!

job discrimination. Consumers should be tree to pursue such an effort because

of human development, see Frederick Schauer, Free Speech: A Philosophical

the merchants are not entitled to equal consideration independent from such

Enquiry (Cambridge: Cambridge University Press, 1982), chaps. 4 and 5. On

issues arising from their role m the marketplace. Suppose, however, that the

"autonomy," see John Gray, Mill on Liberty: A Defence (London: Routledge

white merchants w h o are the subject of the boycott do not practice discrimina-

and Kegan Paul, 1983), pp. 54-56 and 7 3 - 8 1 ; and Fred R. Berger, Happiness,

tion hut are the target of the boycott because it is believed that their personal

justice and Freedom (Berkeley and London: University of California Press,

views are racist. If those alleged racist views do not lead to actions that are the

1984), pp. 2 3 2 - 3 9 . Both, however, incorporate autonomy into a theory that

subject of protest, then our analysis could, admittedly, result m protecting the

depends on the evaluation of states of affairs. O n Grav's version of M i l l , this

merchants from penalties imposed because of their private racist views, just as

evaluation is ultimately utilitarian; on Berger's, it is fundamentally a theorv of

we would protect the Jewish merchant from penalties imposed because of his

justice. 6. See the picture of M i l l that Berlin emphasizes in "John Stuart M i l l and the Ends of L i f e " (Four Essays}. 7. Ibsen's plays are full of compelling cases where truth conflicts with utility and/ or justice. See, for example, The Wild Duck and An Enemy of the People. 8. These observations on Twain and Dos Passos derive from Shelley Fisher Fishkin, From Fact to Fiction: Journalism and Imaginative Writing in America (Baltimore and London: Johns Hopkins University Press, 1985).

private religious views. 14. Kent Greenawalt, "Criminal Coercion and Freedom of Speech," Northwestern University Law Review 78, no. 5 (December 1983), p. 1084. 15. Of course, as in much political debate (and in many works of artistic expression), the reasons may be implicit or oblique, but there must be a basis in the work for uncovering them. 16. t am indebted to James Billington for bringing this phenomenon and its implications to my attention.

9. See Cohen v. California, where First Amendment protections were extended to

17. This argument and its connections to what I call the "private sphere of lib-

the "emotive" as well as purely "cognitive" functions of linguistic expression

e r t y " are developed in some detail in my Justice, Equal Opportunity, and the

because, as justice John Marshall Harlan noted, it is the "emotive function which, practically speaking, may often be the more important element of the

Family (New Haven and London: Yale University Press, 1983), section 2.4. 18. 1 am greatly indebted to Zhengyuan Fu of the Chinese Academy of Sciences

overall message sought to be communicated" (403 U.S. 15 [1971}, at 26).

for bringing this to my attention and for providing me with this translation.

10. Hence modest time, place, and manner restrictions do not constitute explicit

The quotation is from Ssu-ma Ch'ien's Historical Records. However, the stan-

manipulation provided that (a) they are employed in a content-neutral manner

dard two-volume English translation by Burton Watson (New York: Columbia

and (b) they do not operate so as to effectively silence an opinion.

University Press, 1961) begins w i t h the later Han dynasty and thus does not

11. However, this analysis would certainly support the famous view of Justice

include this edict from the Quin dynasty. For a statement from one of the em-

228

N o t e s h> P a g e s 1 5 5 - 1 6 8

peror's advisers that matches this edict almost verbatim, see Win, Theodore de Barv, Wmg-tsit Chan, and Burton Watson, eds., Sources of Chinese Tradition, vol. 1 (New York: Columbia University Press, I960), p, 141. 19. John Stuart M i l ) , On Liberty, m Utilitarianism, On Liberty and Other Writings, edited with an introduction bv Mary Warnock (New York: New American Library, 1962), p. 202. 20. For an extended argument to this ettect, see my "Bargaining, Justice and |ustification," Social Philosophy and Policy 5, no. 2 (Spring 1988), pp. 4 6 - 6 4 . 2 1 . They do not, i n other words, dismiss claims from particular groups merely because of the source. 22. M i l l , On Liberty, p. 143. 23. Ibid., p. 145. 24. See section 3.5 below. 25. This is, of course, one of the mam strands of argument m On Liberty, especially chapter 2.

Notes t o Pages 1 6 9 - 1 7 6

229

not be sett-reflective (the definition includes the requirement that it be unmanipulated). 5 . 1 his notion is meant to apply regardless of whether the goods or characteristics are valued ncgativelv or positively. See sections 2.2 and 2.3 above tor a discussion ot many ot the difficult issues in conceptualizing these values. 6 By "receive," 1 mean process forms of expression offered bv others so as to facilitate successful communication, whether oral or in writing, through standard languages or new artistic forms. 7. This knowledge should be interpreted to include not only the capacity to understand, but also the capacity to employ the relevant conventions. 8. For a further argument to this ettect, see my Justice, Equal Opportunity, and the Family (New Haven and London: Yale University Press, 1983), sections 2.4 and 3.6. 9. See Joseph Goldstein, Anna Freud, and Albert J. Soinit, Beyond the Best Interests of the Child (New York: Free Press, 1973) and Before the Best Interests

26. For an incisive critique of the claim that "authority" requires a "surrender" ot judgment from those subject to it, see Richard E. Flathman, The Practice of Political Authority (Chicago: University ot Chicago Press, 1980), chap. s. 27. For the tortuous history in America ot the achievement ot liberty in the laissezfaire view (treated as freedom of the press in the "libertarian" sense), see Leonard W. Levy, Emergence of a Lree Press (New York: Oxford University Press, 1985). 28. For more on nondiscriminatory meritocratic assignment, see my Justice, Equal Opportunity, and the family, sections 2.2, 4 . 1 , and 5 . 1 . 29. Charles E. Lmdblom, Politics and Markets (New York: Basic Books, 1977), p. 202. 30. The attacks on Lmdblom concerning this issue are gathered in Robert Hessen, ed., Does Big Business Rule America? (Washington, D . C . : Ethics and Public Policy Center, 1981).

of the Child (New York: Free Press, 1979} for some influential work on both the dangers ot and appropriate grounds tor state intervention. 10. See Une Brontenbrenner, A Report on Longitudinal Evaluations of Preschool Programs: Is Early Intervention Effective? vol. 2 (Washington, D.C.: Office ot Child Development, 1974) and P. Lcvcnstein, "Cognitive Growth in Preschoolers through Verbal Intervention with Mothers," American Journal of Orthopsychiatry 40 (1970), pp. 4 2 6 - 3 2 . H . I take the term underclass from Ken Autetta's vivid portrait Fhe Underclass (New York: Vintage Books, 1983). 12. See my Justice, sections 2.4 and 3.6, 13. For a provocative application to voting in national elections, see Paul E. Mechl, "The Selfish Voter Paradox and the Thrown-Away Vote Argument," American Political Science Review 7 1 , no. 1 (March 1977), pp. U - 3 0 . T h e general theoretical issue was, ot course, made famous by Mancur Olson, Ihe Logic, of Collective Action (New York: Sbocken Books, 1968), chaps. 1 and 2. For

3.5 The Conditions of Activist Liberty 1. Anthony Trollope, Pbmeas Finn, vol. 1 (London: Oxford University Press, 1949), p. 297. 2. Ibid,, p. 312. 3. Isaiah Berlin, " T w o Concepts of Liberty," m Four Essays on Liberty (New York: O x f o r d University Press, 1970). See Gerald C. MacCaltum, Jr., "Negative and Positive Freedom," in Peter l.aslett et al., eds., Philosophy, Politics andSouety,

4th series (Oxford: Basil Blackwell, 1974).

4. i say "self-critical" because, by tnv proposed definition, such a dialogue could

some crucial ambiguities m the notion of group size, see Russell Hardin, Collective Action (Baltimore and London: Johns Hopkins University Press, 1982), chap.3. 14. See, for example, William H . Riker and Peter C. Ordeshook, " A Theory of the Calculus ot Voting," American Political Science Review 62, no. 1 (March 1968), pp. 2 5 - 4 2 . 15. Stanley!. Benn offered an account of "political activity as a torm of moral selfexpression" and used as one of his examples "singing political songs i n the bath." See his "The Problematic Rationality ot Political Participation," in Peter Laslett and James S. Fishkm, eds.. Philosophy, Politics, and Society, 5th series

230

Notes t o P a g e s 1 7 7 - 1 8 6

(New Haven: Yale University Press, 1979;, esp. p. 3 10. Benn's notion ot moral self-ex press ion cannot, it seems to me, admit considerations ot effectiveness m expression any more than it can admit considerations of consequences. It is more a matter of consistency with fundamental beliefs or, one might sav, a matter ot integrity. 16. C. D . Broad, " O n the Function of False Hypotheses m Ethics," international Journal of Ethics 26 (1915-161 pp. 377-97.

Notes t o P a g e s 1 8 6 - 1 9 5

231

27. For a historical account of our consumer culture along these general lines, see Stuart Ewen, Captains of Consciousness (New York: McGraw-Fiill, 1976). 28. For a careful assessment, see Michael Schudson, Advertising, the Uneasy Persuasion (New York: Basic Books, 1984). 29. See Ithiel de Sola Pool, Technologies of freedom (Cambridge: Harvard University Press, 1983) tor a useful survey of new technologies of mass communication and their promise,

17. For a discussion ot various efforts to deal with this' problem, see my Limits

30. For some inventive but speculative proposals for limiting the influence of com-

of Obligation (New Haven and London: Yale University Press, 1982), part 2,

mercial advertisers, see Charles A . Reich, " M a k i n g Free Speech Audible," The

sections 13-18. 18. These points about organizational pluralism and decentralization have bene-

Nation, Feb. 8,1965, pp. 138-41. 31. See David R. Mayhew, Congress: The Electoral Connection (New Haven and

fited trom Robert A . Dahl, Dilemmas of Pluralist Democracy: Autonomy vs.

London: Yale University Press, 1974), pp. 6 7 - 6 9 . See also John W. King-

Control (New Haven and London: Yale University Press, 1982).

don, Agendas, Alternatives and Public Policies (Boston: Little, Brown, 1984),

19. Barrmgton Moore, Jr., Injustice: The Social Bases of Obedience and Revolt (White Plains, N.Y.: M . E. Sharpe, 1978), p. 58. 20. See my Justice, section 5 . 1 , for a further account of these process equalities. 2 1 . 1 have been focusing here on how the tack ot self-esteem may form an impedi-

chap. 8, for a detailed discussion of policy entrepreneurs and their relation to windows of opportunity. 32. See Benjamin L Page, "The Theory of Political Ambiguity," American Political Science Review 70, no. 3 (September 1976), pp. 742-52.

ment to participation. It is also true, of course, that actual engagement in par-

33. in this same spirit, see Benjamin Barber's proposals for a "Civic Commu-

ticipation can be expected, m turn, to contribute to self-esteem and to the civic

nications Cooperative" to harness new technologies for democratic political

education of citizens—facilitating the development of the necessary capacities.

dialogue and a "Civic Videotext Service" to increase citizen access to infor-

M i l l made strong claims about the educative functions of participation. For

mation (Strong Democracy: Participatory Politics for a New Age [Berkeley:

an assessment, see Dennis F. Thompson, fohn Stuart Mill and Representative Government (Princeton: Princeton University Press, 1976), chaps, i , 2, and Conclusion.

University of California Press, 1984j, chap. 10). 34. Joel Feinberg, Offense to Others, vol. 2 of The Moral Limits of the Criminal Law (New York: O x f o r d University Press, 1985), pp. 10-13.

22. For each of these process equalities, leveling up tor the bottom is a neces-

35. For a strong argument that symbolic speech should be accorded equal status

sary first step, but one that inevitably falls far short of equalization. Further

w i t h verbal speech under the First Amendment, see Melville B. Nimmer, "The

efforts at equalization must inevitably conflict with important liberties ot the

Meaning ot Symbolic Speech under the First Amendment," UCLA Law Re-

better-off strata. H o w these value conflicts are to be assessed remains a serious

view 2 1 , no. 1 (1973), pp. 2 9 - 6 2 .

controversy. See my justice, section 5 . 1 . 23. Fora penetrating assessment, see William Julius Wilson, The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy (Chicago: University ot Chicago Press, 1987). 24. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), chap. 4.

3 6 . 1 am referring to the full experience of such messages, not the bare knowledge of them. 37. For more on this promise, see Pool, Technologies. For example: " W i t h the new technologies, the w o r l d is s h r i n k i n g . . . . There will be less cost constraint to do business, consult, debate, and socialize within one's own region only. There w i l l be more freedom to do so with anyone anywhere w i t h w h o m one

25. Although W. G. Runciman argues that this factor w i l l be greatly ameliorated

finds affinity. This development, along with the development of multiple tech-

by restrictions in the range of social vision ot the worse-ott (postal workers

nologies ot communication and of cheap microprocessors, w i l l toster a trend

comparing themselves to other postal workers, but not to the very rich). See

toward pluralistic and competitive communications systems. W i t h hundred-

Runciman, Relative Deprivation and Social Justice (Berkeley: University of

channel cable systems, videocassettes, videodisks, ISDNs, and network links

California Press, 1966). 26. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 534.

to thousands of on-line information services, there should be a diversity of voices far beyond anything known today" (p. 229).

232

Nofes t o Pages 1 9 5 - 2 0 1

38. For an assessment, sec Larrv ] . Sabato PAL Power: Inside the World of Political Action Committees (New York: N o r t o n , 1984). 39. Buckley u, Valeo, 424 U.S. t (1976). See aiso First National Bank v. Bellotti, 435 U.S. 7 6 5 ( 1 9 7 8 ) . 40. Reich, M a k i n g Free Speech Audible," p. 141. 1

Vouchers and Opinion Polls 1. See the discussion ot capacities in section 3.5 above. 2. i participated w i t h Schmitter, Ciaus Otte, lerrv Karl, and others in a working group focused o n representation vouchers at the Center tor Advanced Studv in the Behavioral Sciences in 1987-88. in what follows, 1 do not presume to present Schmitter's proposal, as it differs from the sketch suggested here in many particulars. I am, however, grateful to all the participants in this group tor some extremely insightful discussions. E heir own respective versions ot the idea w i l l , I am sure, be presented in various works. 3. I served as chief academic adviser to station WET A in Washington, D.C., tor an effort bv PBS to mount a version ot the deliberative opinion poll m the

Absolutism versus relativism, 2, 202 Ackerman, Bruce A., 2 0 6 » 2 , 2 0 9 « f 0 ,

Anarchy, State and Utopia (Nozick), 51

1992 presidential campaign, i'undmg difficulties forced the event to be can-

2S3K4, 220>;.iS, 221 » 4 2 ; on

celed, but the proposal has been adopted tor 1996 bv all ten of the nation's

manna, 6 , 5 ! , 80, 9 8 - 9 9 , 2 1 8 « 5 ;

presidential libraries. I he event w i l l be held at the Lvndon Baines lohnson

on "neutral dialogue," 4 6 , 5 ! , 56,

Library and Museum m Austin, Texas, and is expected to be broadcast nation-

79; hypothetical-choice theory in

lem and, 22; definition of, 29:

ally. Eor more details on the possible role ot deliberative opinion polls, see mv

Social Justice in the Libera! State,

equal opportunity and, 29-35,

Democracy and Deliberation; New Directions for Democratic Reform (New

48, 82, 9 6 - S O I ; on neutrality,

2 1 0 « 2 ; merit and, 3 1-32,

Haven and London: Yale University Press, 1991).

5 1 , 9 6 - 9 7 , 100,101, 2 2 0 - 2 1 x 4 0 ;

equality of life chances and, 32¬

4. For a general account ot momentum in the presidential selection process, see Larrv M . Barrels, Presidential Primaries and the Dynamics of Public Lboice (Princeton: Princeton University Press, 1988).

objection to utilitarianism by, 97¬

A meson, Richard, 143,

llSnU,

HSn2l Assignment problem: structure prob-

33;

33; liberty and, 3 3 - 3 4

98, 108; on equality, 9 8 - 1 0 0 ;

Authority. See Legitimacy problem

distribution theory i n , 99-100,

Autonomy, 146, 2 15x3, 226X5

101; on liberal education, 2f0/r7; on rationality, 220rt.il Activist liberty: conception of, 163¬ 64; conditions of, 165-97; capacities and, 170-73; incentives and, 173-89; opportunities and, 189¬ 97 Actual-consent theory, 5 0 - 5 2 , 56, 59-63,68 Acyclicity, 2 0 9 « f.j

Background conditions: and activist conception of liberty, 168—69; definition of, 169; capacities, 170-73; incentives, 173-89; opportunities, 189-97 Barber, Benjamin, 2\2n6, 23 1x33 Barry, Brian, 22, 4 6 - 4 7 , 101. 206xS, 209x7,213x6,219x2/.221x/, 222x6, 223x/tf

Agreement. See Consent

Barrels, Larry M . , 232x4

Amoralism, religion versus, 2, 202

Basham, A . L „ 2 2 4 x /

Anarchism, 42, 51, 52,57, 69, 77, 128

Baumol, W i l l i a m ] . , 109,222x15

234

Index

Beitz, Charles R., 206«/

Index

Compensation, 68, 71-77, 2 i 6 « i ( i ,

Benefits: legitimacy problem and, 124,

2 l 7 « i 2 , 2 l 7 x / 6 . 222«/4

128; essential benefits, 1.35—37,

Consensus: legitimate versus sus­

139-44, 2 2 4 « i 2 2 2 5 « / 5 ; " m i n i ­

pect forms of, 8, 6 5 - 6 6 ; in a

mum standards ot provision,"

self-reflective society, 124, I2f>—

2 2 4 « i 2 ; collective benefit, 215n 17

27; cleavages and, 130-31, 134,

1

Benn, Stanley I . , 2 2 9 - 3 0 « / 5 Bennett, Jonathan, 15, 17, 2 0 8 « O

156-58; definition of, 130 Consent: actual-consent theory, 50,

Deliberative opinion polls, 2 0 0 - 2 0 1 , 232x3 Democracy; forms of, 3 5 - 3 7 ; " M a d i -

235

D w o r k i n , Gerald, 2 0 6 « ^ , 2 2 3 x x ( 9 20 D w o r k i n , Ronald, 213x2, 222xx6-~7,

soman" versus "majontarian,"

2 2 3 « 2 ; on equality, 45, 79, 213x3;

35-36, 37, 212«/; indirect versus

on "personal" preferences, 103¬

direct, 36, 37; cycles m, 37—39;

06; on Rawts, 119

unanimous direct democracv, 37, 54-55; limited liberalism model

Bentham, fcremv, 23, 2 0 9 « S

5 1 , 5 2 , 5 6 , 5 9 - 6 3 ; hypothetical

and, 39; practices of constitutional

Berger, Fred R., 226x5

contract theories, 52; nonunani-

Economic inequalities, 181—84

democracy, 13 i—32; elections m,

Berlin, Isaiah, 146, 2 2 6 « 4 , 2 2 6 « 6 ,

mous consent, 5 2 , 5 9 - 6 3 ; tacit

Economic prerequisites, minimal,

132-33, 2 0 0 - 2 0 1 ; proportional

consent, 5 2 , 5 7 - 5 8 , 6 1 , f->9; una­

representation and majority rule

Education, 171-72, 2E0«7, 217x f i

228x3

184-85

Bilhngton, James, 227nl4

nimity rule for, 5 2 , 5 6 - 5 7 , 5 8 - 5 9 ,

in, İ 3 3 ; vulnerability to "circu­

Blackmail, 152, 153

6 1 ; quest for, 5 3 - 6 7 ; options on,

Educational voucher systems, 21 In 10

larity," Î 6 0 - 6 İ ; public opinion

Blind-alley theories, 4 1 - 4 2 , 48,52,

54; "unanimous direct democ­

Elections, H 2 - H , 2 0 0 - 2 0 1 , See also

and, 174,199; incentives and, 199;

racy," 5 4 - 5 5 ; hypothetical-choice

structure of, 199; with "limited

54,57, U5 Bloom, Allan, 2, 2 0 5 « 3

theories, 55-56; "voluntary orga­

Boycotts. See Market boycotts

nization" model and, 59-bO;

Brainwashing, 55, 66

majority rule and, 60; hypothetical

Braybrooke, David, 2 2 4 « i 2

consent, 62; shared understanding

Brennan, William, 116-27n11

and, 6 3 - 6 5 ; good-faith disagree­

Broad, C. D„ 176-77, 230wf6

ments and, 6 4 - 6 5 ; manipulated or

Brontenbrenner, Une, 229 nW

indoctrinated consensus, 6 5 - 6 6 ;

Buchanan, fames, 212x4

transcultural criteria for, 67; strict versus loose interpretation of, 68¬

Cable television, 187, 190, 195, 231«37 Captive audiences, 191, 193-94 Categorical Imperative, 80 Children, 154, 171-73

69, 116—17; legitimacy problem and, 121-22; jurisdiction problem and, 122-23; definition of, 2 1 5 x i 6 Context-independent versus contextdependent solutions, 3, 4

China, 155

Cost-benefit analysis, 109, 2 ibnlO

Choice. See Consent

Cranston, Maurice, 45, 2 1 3 x i

"Circularity," ot democracies, 160-61 Citizen sovereignty, 101, 110 Cleavages, 130, 134, 156-58 Chentahsm, political, 167-68 Cohen, Marshall, 2 2 2 « 7 Collective benefit, 2 2 5 « Î 7 Communications technology, 186-90, 194,195,231x37

ma|ontv rule," 212«2 Dialogue: neutral dialogue, 4 6 , 5 1 , 5 6 ,

230«IS Daniels, Norman, 218x6, 2 1 9 « 2 4 , 223«2

equality of lite chances and, 32—

25; "unmampulated dialogue"

33; liberty and, 3 3 - 3 4 ; "reverse

and, 146-48; creative works and,

discrimination," 34; Rawls on, 95,

147-48; definition ot, 147, 163;

2 1 0 « 5 ; distributive justice and,

freedom ot contributions to politi­

110-11; definition o f , 2 1 1 x i i ; ver­

cal dialogue, 153-54; ot interests

sus equal outcomes, 211«X; and

across cleavages m society, 156¬

preferential treatment tor minority

58; participatory civility and, 157; and opportunities tor ex­

groups, 2 1 1 « f / Equahtv; definition of, 23; maxmim

pression, 189-97; amplifiers ot

violating, 24, 2 5 - 2 6 ; total wel­

political dialogue, 194-95; struc­

fare violating, 24—25; numbers

tural manipulation ot political

criterion violating, 26; of lite

dialogue, 194

chances, 3 2 - 3 3 ; R, D w o r k i n on,

Discrimination, 133-38. See also Distribution: structure problem and,

45, 79, 213x3; liberalism and, 4 5 - 4 6 ; neutrality and, 9 6 - 9 7 ; background conditions and, 180¬

2 2 - 2 3 ; Ackerman on, 99-100,

8 1 ; process equalities, 180-82,

101 ; o t self-esteem, 180-85

2 3 0 « 2 2 ; economic inequalities,

Distributive justice: issues m, 5 - 9 ;

Darkness at Noon (Koestler), 14

democracy and, 35; and neutrality,

Decision procedures. See Impartial

rationality, and consistency, 96;

decision procedures

lem and, 2 9 - 3 5 ; merit and, 3 1-32, 33, 210x2; trilemma of, 3 1 - 3 5 ;

79; and legitimacy problem, 124¬

Equal opportunity Dahl, Robert A., 36, 2 1 2 « f , 215x/2,

Voting Equal opportunity: assignment prob­

preferences based on, 110— Î1

181-84; government's rote m, 2 1 3 « 3 ; "undominated equality," 220«34 Ewen, Stuart, 231x27

236

Index

Explicit manipulation, 148-56, 160, 165-67,226«10

Index

I t 0 - 1 3 ; jurisdiction problem and,

State, 82, 9 6 - 1 0 1 ; in Rawls's .4

2, 4, 2 0 2 - 0 3 ; definition of, 34, 46;

H2-13

Theory of justice, 8 2 - 9 6

systematic versus unsystematic,

1 xpression, opportunities tor, 1S9-97

Goode, William J., 221x4/

impartiality, 50-52

4 6 - 4 8 ; Rawls's alternative to,

Expressive-function argument of

Gooden, Robert E., 221x42

Incentives: negative incentives, 173;

213x5

voting, 1/6 hiimess, 1 4 0 - 4 1 , 143, 2 10« i ,

Crav, John, 2 2 6 « 5

and importance ot public opinion,

Greenawalt, Kent, 152, 2 2 7 « 14

174; tor political participation,

Jencks, Christopher, 210x6

Greenstem, t-red I . .

¡ 7 4 - 8 0 , 199; positive incen-

jurisdiction problem: libera! theory

111x6

225«/7 Feinbcrg, Joel, 191, 208»fO, 2 0 8 » i 4 , 23 I»34 Fislikm, Shellev 1'isher, 2 2 6 « S Hathman, Richard E „ 2 2 8 « 2 6 Foot, Phihppa, 2 0 8 « 6 Frednckson, George, 224«ft Freedom. See Liberty Freedom of association, 154, 193, 225x2 freedom ot political expression, 146, 153-54, 156-58, 172, 189-97, 2 25 «2 Freedom ot thought, 121, 164-65 Future generations, and problem of value, 9-19 Galston, W i l l i a m A., 219«2fo

Hardin, Russell, 2 2 9 » i3 Hare, R. M „ 102-03, 2 2 1 « x 2 - 4 H a r m , identitv-specitic notion of, 9-H) Harm principle, 18-19, 208x/4 Flarman, Gilbert, 2 1 , 208x6 Flarsanvi, John C., 80, 106, 218x3, 222x9 Hart, H . L. A., 20, 140-41, 208x4, 222x6,224«13 Hook, Sidnev, 2 2 3 » 4 , 2 2 5 » 14 FIvpothetical-choice theories, 55-56, 68,82-83 Ffvpothetical-contract theories, 52 Ffvpotheticais. See Realistic hypotheticals

Gauthier, David, 217«/7 General welfare, and structure problem, 22-23 Generalized-consequences principle of

tives, 174; decentralization and,

and, 43; political thought experi-

179; selective incentives, 179-80;

ments and, 52; impartial decision

distribution of selt-esteem and,

procedures and, 8 1 - 8 2 ; on the

180-85; economic inequalities

good, 112-13; self-reflective soci-

and, 181-84; minimal economic

ety and, 115, 128; Rawlsand,

prerequisites and, 184-85; adver-

119; legitimacy problem and,

tising and, 186-87; tor specialized elites, 188-89; tor competitive

122-23,128 justice: pure problem of, 19-20,

voices m government, 196-97;

2 1 ; "simple justice," 20; Rawls s

representation vouchers as, 198¬

theory of, 4 5 - 4 6 , 51, 62, 8 2 - 9 6 ;

99; tor formation ot two-parent

social meanings and, 64; Walzer's

families, 2 l l x f 0

theory of, 64, 65, 66; Ackerman's

India, 129-30, 2 2 4 « f indifference curves, 4 6 - 4 7 , 7 3 - 7 4 , 76, 216x/

!

theory of, 82, 9 6 - 1 0 1 . See also Distributive justice; Systematic justice

Individual-choice problem, of political obligation, 61-63

Kaldor-Hicks compensation test, 109

Indoctrinated consensus, 65-66

Kant, immanuel, 80

Indoctrination problem: liberal theory

Kaplan, Abraham, 2 16x20

Idea I-regarding theories of good,

and, 4 3 - 4 4 ; political thought

Karl, Terry, 232x2

(01-02, 110-12, 223x/.V

experiments and, 52; consent

Kingdon. j o b n W., 231x3/

and, 53-54, 6 5 - 6 7 ; self-reflective

Klosko, George, 225«/S

Identity-independent theories: prob-

voting, 176-77

lem ot value and, 13-15; replace-

society and, 115; and legitimacy

Koestier, Arthur, 14, 208xíO

Gewirtb, Alan,218»2

abilitvaiul, 13-17; procreational

problem, 122, 128; liberty and,

Kohlberg, Lawrence, 218x4

Golden Rule, 80

liberty and, 18-19

145; and dissent and disagreement,

Goldstein, Joseph, 2 2 9 « 9

klentitv-specific notion of harm, 9-10

Good: Rawls's " t h m theory ot the

Identity-specific theories, and procrea-

good," 8 3 - 9 6 , 100-101, 110,

237

tional liberty, 18-19

223 » 5 Inequalities. See Economic inequalities; Equal opportunity

Laissez-faire construction of liberty, 160-62,168 Lasiett, Peter, 206x2, 2 0 6 « « , 208x3,

146; Rawls's model conception

Impartial decision procedures: as basis

of a moral person, 9 4 - 9 5 ; ideal-

for systematic liberalism, 79-80-,

regarding theories of, 101-02,

examples of, 7 9 - 8 0 ; versus notion

110-12, 2 2 3 « f # ; want-regarding

Interests. See Preferences

Lasswell, Harold, 64, 2 1 6 « 2 0

of interests, 8 0 - 8 1 ; jurisdiction

theories of, 101-02, 108, 109¬

Interpersonal comparison of want

Legitimacy problem; obligation and,

problem and, 8 1 - 8 2 ; in Acker-

10, 2 2 3 « / i ; neutral theory of.

man's Social justice in the Liberal

Insulation strategies, and economic inequalities, 182

satisfaction, 108-10 Intuitionism: versus systematic theory.

2 1 0 x 4 , 2 1 4 « 3 , 2 1 5 x 7 , 218x4, 223x/9, 228x3, 229»/5

5 , 4 2 - 4 3 , 129-45, 2 1 5 » i 4 ; authority of the state and, 115-29;

23«

Legitimacy problem (continued) ideal theory and, 117-19; as ethi-

and, 5 0 - 5 3 ; quest tor consent and,

MacLean, Douglas, 213x3

M o r a l self-expression, 2 2 9 - 3 0 « IS

53-6/; and impartial decision

Madison, James, 60

Morality. See Good; Value problem

procedures, 7 9 - 8 0 ; hypothetical-

"Madisonian" versus "majoritarian"

issue, 118; and state's use o l au-

choice theories ot, 8 2 - 8 Î ; process

democracy, 3 5 - 3 6 , 3 7 , 212«/

thoritative torce, 1 2 0 - 2 1 ; consent

equalities and, 180-8 I

cal issue, 118: as sociological

theory and, 121-22; full versus

239

Index

Index

Liberty: problem ot assignment and,

Motivation, See incentives M u t u a l voluntariness, 190-93

Mafia, 147 " M a j o r i t a r i a n " versus "Madisonian"

Natural rights, 2, 202

3 3 - 3 4 ; Rawls o n , >4-9.1, ( 4 5 - 4 6 ;

nation and, Ml, 128; jurisdiction

distributive justice and, 110-1J ;

Majority rule, 60, 133, 215x9

Negative incentives, 173

problem and, 122-23, 128; and

ot political culture, 144-65; self-

Manipulation: of consensus, 6 5 - 6 6 ;

Neuhaus, Richard, 205x4

v

democracy, 3 5 - 3 6 , 37, 212x/

Nagel, Thomas, 82, 2 I 8 « 6

minimal solution to, 121; indoctri-

reflective society and, 144-65;

versus "unmanipulated dialogue,"

Neutral dialogue, 46,5 i , 56, 79

indoctrination problem and,, 145;

146-48; explicit manipulation,

Neutrality: options for hypothetical-

and supplv ot essential benefits,

Berlin o n , 146; M i l l o n , 146, 158,

148-56,160, 165-67, 2 2 6 x ( 0 ;

choice theories, 8 2 - 8 3 ; in Rawls's

124, 128; conditions tor, 124¬

164; Scanlon o n , 146; "urrna-

strong manipulation, 156-58,

" t h i n theory of the good," 83-84,

25; consensual practices and, 124,

mpulated dialogue'' and, Î 4 6 - 4 8 ;

164-65; structural manipulation,

8 6 , 9 1 , 9 3 , 9 5 - 9 6 , 110; Ackerman

126-27; dialogic nature ot con-

utilitarianism and, 146; explicit

156-57, 161, 194

on, 9 6 - 9 7 , 100. 101; definition

ditions for, 124-25; minimally

manipulation and, ¡ 4 8 - 5 6 , 160;

voluntary provision and. 124, 125;

cleavages and, 156-58; freedom

self-reflective practices and, 124,

ot expression and, 156-58; strong

¡ 2 7 , 129-44; and criteria for ac-

M a r x , K a r l , 135, 224x9

manipulation and, 156-58; struc-

ceptable theory, 127-28; liberty

Mason, David T., 2 0 5 « 2

tural manipulation and, 1.16-57,

and, 185-86; self-reflective society

Mass communication. See Communi-

161; and political "truths," 158¬

and,201-03

.19; laissez-faire construction ot,

Maximin, 23-26

norms ot evaluation internal to that political practice, 12 3-25;

Market boycotts, 151-52, 166,

theories of the good, 110-13; of

227x13

cations technology

of, 96; equality and, 9 6 - 9 7 ; in claims or interests, 122—23. See also Impartial decision procedures

*

Nonunanimous-actual consent, 59, 63, 68 Nozick, Robert, 2 0 7 « 4 , 2 1 4 « 4 , 2 1 6 -

160-62, 168; intervention and,

" M a x i m u m " notion of the general

1 7 « « 2 - / 6 , 223x20,115nl6\

L e w , Leonard W . , 2 2 8 « 2 7

162- 63; activist conception ot,

conception of justice, 8 6 - 9 0

on the minimal state, 5 1 , 68¬

Liberal education, 210x7

163- 97; political chentahsm and,

Levenstcin. P., 2 2 9 « i t i

Liberalism: false dilemmas o n , 1 ¬

Î 6 7 - 6 S ; capacities and, 170-73;

2; limited liberalism model, 4,

incentives and, ¡ 7 3 - 8 9 ; legitimacy

39; criteria tor acceptable theory

problem and, 185-86; opportuni-

ot, 4 1 - 4 5 , 127-29; differentiat-

ties and, 189-97; tor conterruit',

ing anions; alternatives, 4 1 - 4 2 ,

benefits w i t h i n the family, 2n«/0.

45-50; as individually binding,

See also headings beginning w i t h

4 2 - 4 3 ; failure to be prescriptive

freedom

and, 42, 45-50; indoctrination problem and, 4 3 - 4 4 ; jurisdiction problem and, 43, 44; individuatversus social-choice question o n , 44; definition of, 4 5 - 4 6 ; systematic intuitiomsm and, 46—47; unsystematic intuitiomsm and, 4 7 - 4 8 ; moral priorities and, 49¬ 50; political thought experiments

Mayhew, David R., 23 l x Ï /

78, 214x2; and doctrine of full

Meehl, Paul E., 229x13

compensation, 6.8, 71—77; unani-

Mciklejohn, Alexander, 225x2

mous acceptability in argument

M e r i t : assignment problem and, 3 1 ¬

of, 6 8 - 6 9 ; on "independents,"

32, 3 3 ; equal opportunity and, 31-32,33,210x2 M i l l , John Stuart, 60, 146, 155, 158, 164,208«/4, 228«f9

Limited liberalism, 4, 39

M i n i m a l state, 68-78, 214x2

Lmdhlom, Charles t . , 1 6 0 - 6 1 ,

M i n i m u m : guaranteed minimum, 88¬

2 2,8 uni 9-30 Little, L M . D . , 109,222nJ4 Locke, John, 5 7 - 5 8 , 6 1 , 69, 215x6 MacCallum, Gerald C , j r . , 2 2 8 « 3 Macfntyre, Alasdair, 213x7 Mackie,J. L , 218x2

89; Rawls o n , 8 8 - 9 2 ; " m i n i m u m

7 2 - 7 3 , 7 5 , 120, 2 1 7 « ¿ 6 ; on protection services versus "self-help enforcement," 7 2 - 7 4 , 217x16; and indoctrination for preference formation,

7 8 - 7 9 ; on obligation,

141-42 Numbers criterion, 2 4 - 2 6

standards of provision," 2 2 4 « f 2 Mirrlees, j . A . , 2 2 2 « J 7

Obligation: legitimacy and, 5, 42¬

Mishan, E.J., 206x6

4 3 129-45, 215x14; "voluntary

Moore, Barrington, Jr., 66, t U ,

organization" model and, 59¬

;

1 8 0 , 2 0 6 M I 0 , 2 1 6 « 2 4 , 223x2/,

60; individual-choice problem

2 2 4 « 7 , 2 2 4 « i f , 230x19

of, 6 1 - 6 3 ; promise keeping and,

240

Index

Index

Obligation (continued; 129-30; selt'-refiective practices

Pitkm, Hanna..S8, 214x3, 2 ¡ 5 x 7 , 2 15M

Rawls, John, 4, 2 0 5 . 2 0 9 , 2 1 3 - 1 5 ,

"Restricted utilitarianism," 103-06

218-21,223, 225, 230; on the

Riker, W i l l i a m H . , 229x14 Robbins, Lionel,7, 1 0 8 - 0 9 , 2 2 2 x x / 2 -

and, 129-44; justifiable nature of,

Political, dehtution of, 145, 225«/

priority problem, 3, 28; on pri-

130; authoritarian regimes and,

Political chentahsm, 167-68

mary goods, 6 , 8 0 , 8 4 - 9 0 , 92, 93,

131; and essential benefits, 135¬

Political thought experiments, 50-53

1 1 0 , 2 1 8 x 5 , 2 2 2 - 2 3 « / « ; argu-

Roscnbloom, Lauren, UStilH

37, 139-44; fairness and, 1 4 0 - 4 1 ;

Polsbv, Nelson, 213x6

ment against equality, 24; theory

Runciman, W. C , 2 1 0 « 4 , 2 3 0 « 2 5

strength of, 2 2 3 « 3

Pool, Ithiel de Sola, 231x29, 2 3 t x 3 7

of justice, 4 5 - 4 6 , 5 1 , 62, 8 2 - 9 6 ;

Ryan, Alan, 222x6

Otfe, Claus, 2 3 2 « 2

Population problems, 10-11, 15, 17

'"original position" of, 56, 79,80,

Olson, Mancur, 178-79, 229» 11

Positive incentives, 174

214w2; hypothetical-choice theory

Sabato, Larry j . . 2 3 2 « 3 S

On Liberty ( M i l l ) , 155

"Preference" utilitarianism, 15-16

m A Theory of justice, 8 2 - 9 6 ,

Sartori, Giovanni, 212x2, 2 K i w i ,

Opinion polls, deliberative, 2 0 0 - 2 0 1 ,

Preferences: value problem and, 7¬

1 0 0 - 1 0 1 ; neutrality in, 83-84,

232x3

8; indoctrination tor preference

Opportunities: for receiving consci-

formation, 78-79; and theories ot

entious political views, i 8 9 - 9 1 ;

the good, S01-02; fanaticism and,

mutual voluntariness and, 190¬

102-03, 107; personal preferences

93; tor expressing conscientious

versus external or public-regarding

political views, 194-97

preferences, 105-04; utilitarian

Ordeshook, Peter C , 2 2 9 « 1 4

approach to, 106-07; and interpersonal comparison of want

Page, Benjamin I . , 231x32

satisfaction, S08-I0; choice ot

Pareto noncomparahle, 109, 20iix i

which are to he counted, 108;

Pareto principle, 7, 108, 109, 110,

based on distributive justice,

206«.? Parh't, Derek, 13,207x5 Participation: capacities tor, 170; incentives tor, 174-80, 199; irrationality of, S75-76,17K-79; and principle of hypothetical generalization, 176-77; expressivctunction argument of, 176; generalized-consequences principle ot, 176-77; motivations tor, 177-78; group size and, 178-79; distribution of self-esteem and, 180-85, 2 3 0 « 2 i ; economic i n equalities and, 181-84; advertising and,186-87 Participatory civihtv, 157, 190 Particularity requirement, 43, 223«/ Paternalism,8,111-12,223x19 Phmens hum i Frollope), 165-67

¡ 1 0 - 1 1 ; neutrality and, 122-23 Preferential treatment tor minority groups, 21 biJ J Presidential selection, 2 0 0 - 2 0 ! Primary goods, 80, 84- >, 1 i n , l

218x5,218«i6, 222-23«/« Priority problem, 3, 28, 205x6 Process equalities, 180-82, 230x22

" t h i n theory of the good," 8 3 - 9 6 ,

Scanlon, Thomas, 146, 225n3

1 0 0 - 1 0 1 , U 0 , 146; on rational lite

Schauer, Frederick, 2 2 6 « 5

plans, 8 4 - 8 6 , 93; on " n i a x i m m "

Schmitter, Philippe, 197, 232x2

notion ot the general conception

Schudsou, Michael, 231x28

of justice, 8 6 - 9 0 ; on income and

Schwartz, Ihomas, 11, 2 0 7 « 6

wealth, 8 7 , 9 2 , 95; on the special

Scitovsky compensation test, 109

conception, 87, 9 2 - 9 3 ; on guaran-

Second Treatise (Locke), 57-58

teed minimum, 8 8 - 8 9 ; on model

Selective incentives, 179-80

conception ot moral person, 94¬

Self-critical political culture, 146-47.

95; on fairness, 1 4 0 - 4 1 , 210x5; on liberty, 145-46; on economic redistribution, 185; development of alternative to intuitiomsm by, 213x5; on moderate scarcity, 214x/3; on ideal theory, 214x12, 223x/; on social primary goods, 218x5 Realistic hypotheticals: example

Promise keeping, 129-30

Nozick's argument tor the minimal state, 68-78 Redistribution, and economic in-

38 Rae, Douglas W,, 20, 25, 206//4,

equalities, 183-85 Reich, Charles A . , 196, 23 ¡ « 3 0 Relativism, 2, 6 5 - 6 6 , 202

208x3, 213x6, 2 1 5 » 4 , 2 1 9 « 2 0 ,

Religion versus amoralism, 2, 202

221x43

Replaceabihty, and identity-

Rational life plans, 8 4 - 8 6 , 93 Rationality, 220x3/

224« 7 Sati. ¡ 2 9 - 3 0 , 2 2 4 x « l - 2

of, 5 1 ; unanimity and, 6 7 - 6 9 ;

Racial or ethnic discrimination, 133¬

¡3

86, 9 1 , 93, 9 5 - 9 6 , 110; on the

Procreatioual liberty, 18-19 Public opinion, 127, 174, 199

241

independent theories, 13-17 Representation vouchers, 197-99

See also Self-reflective society Self-esteem, 1 3 8 - 3 9 , 1 8 0 - 8 5 , 2 3 0 « 2 i Selt-reflective society: compared with systematic justice, 5; moral conflicts and, 9; criteria tor, 115-17, 127—28; legitimacy problem and, 117-29, 2 0 1 - 0 3 ; and provision ot essential benefits, 124, 128, ¡ 3 5 ¬ 37, 139-44; consensual practices and, 124,126-27; minimally voluntary condition for, 124, 125; self-reflective condition ot, 124, 127, 129-44, ¡ 5 9 , 160, 164; and differentiation among alternatives, 127-28; and individually binding requirement, 128; jurisdiction problem and, 128; nonmdoctrination criterion and, 128; social conditions tor lull membership i n , 137-39; self-esteem and, 138-

242

Index

Index

Self-reflective society (continued) 39; and liberty of political culture, 1 4 4 - 6 5 ; and activist conception or liberty, 163-64; conditions

243

four minimum tests of, 2 7 - 2 9 ;

"Rillock, Gordon, 2 1 2 « 4

and, 12-19; identity-independent

transitivity and, 28-29

Tussman, Joseph. 5 9 - 6 0 , 215«/1

theories and, 13—15; "'preference"

Subsistence needs, 219x22

T w a i n , M a r k , 147, 2 2 6 « «

utilitarianism and, 15-16; harm

Systematic justice: limits of, 1-39;

Tyranny, 60, 63, 66, 215x12, 216x23

ot activist liberty and, 165-97;

impediments to, 2 - 4 ; context-

background conditions and, 168¬

independent solutions and, 3, 4 ;

97; viability ot, 169-70, 2 0 1 - 0 3 ;

definition ot, 3; moral progress

capacities and, 170-73; incentives

and, 3, 4 ; "priority problem" and,

and, 173-89; opportunities and,

3; compared with selt-rettective

189-97; and competitive voices

society, 5; issues in distributive jus-

principle and, 18-19 Veto. See Unanimity rule

Unanimity, and realistic hypothcticals, 67-69 Unanimity rule, 5 6 - 5 9 , 6 1 , 212x4, 215x13 Unanimous direct democracy, 37,

Victimhood, acceptance of, 6 6 , 111, 134,224x1/ "Voluntary organization" model, 59-60 Voting; incentives for, 174-80;

tn government, 196-97; and

tice, 5 - 6 ; value problem in terms

representation vouchers, 197-99

ot immediate difficulty, 6 - 9 ; value

"Undommated equality," 120n34

hypothetical generalization, 176¬

problem and future generations, 9¬

Universal consent, 52

77; expressive-tunction argument

19; structure problem and, 19-29;

"Unmanipulated dialogue," 146-48

of, 176; classic voting paradox,

assignment problem and, 29¬

Unsystematic versus systematic intu-

209x14. See also Participation

Selt-respect, Rawls on, 95. See also belt-esteem Sen, Amartva, 23, 2 0 9 « « , 2 U « 4 , 218«3,221x2,222x9.222x17 Shared understanding, and consent, 63-65

35; democracy and progress and, 35-39 Systematic theory: versus intuition-

Shue, Henry, 2 0 6 « !

ism, 2, 4, 202-03; and impartial

Simmons, John, 2 1 2 - 1 3 « /

decision procedures, 79-80

Singer, Peter, 15-16,79-80, 208x1/, 213x4,217x1,218x4

Systematic versus unsystematic mtultiomsm, 4 6 - 4 8

Smart, j . J. C , 222x10 Smith, Adam, 9 1 , 135-39, 2 1 9 « 2 2 , 221«2,224x# Social justice in the Liberal State (AckermanS, 82, 96-101 Social mobility, and economic inequalities, 182-83

Tacit consent, 5 2 , 5 7 - 5 8 , 6 1 , 69 Iheory of justice, A (Rawls), 8 2 - 9 6 , 100-101 " T h i n theory ot the good," 83-96, 100-101,146 Thompson, Dennis E, 230x2/

Special conception, 87, 92-93

'ihomson, Judith Jarvis, 2 1 , 208x6

Spheres of Justice (Walzer), 63¬

Thorndike, E. L., 7, 2 0 6 x x 4 - 5

64, 119 Strauss, Leo, 2, 2 0 5 x 3 , 2 2 6 « 4 Strong manipulation, 156-58, 164-65 Structural manipulation, 156-57, 161,194 Structure problem: pure problem of justice and, 19-20, 2 1 ; utilitarianism and, 2 0 - 2 2 ; assignment problem and, 22; distribution and, 22-13; general welfare and, 21-13; cases concerning, 2 4 - 2 8 ;

Tocqueville, Alexis de, 60 lotal welfare: violating maximin, equality, and the numbers crite-

54-55

itiomsm, 4 6 - 4 8 Utilitarianism: value problem and, 12-19; replaceabihty and, 13— 17; "preference" utilitarianism, 15-16; vulnerability ot, 16-17; arguments aga-mst, 2 0 - 2 2 , 9 7 ¬ 98, 108; distributive objection to,

1 0 1 - 0 2 , 1 0 8 , 1 0 9 - 1 0 , 223«1S Wasserstrom, Richard, 2 2 4 « 4

Singer's reconstruction of, 79-80;

Wealth; Rawls on, 87, 92, 95; Acker-

Ackerman's objection to, 9 7 - 9 8 ,

man on, 99; distributive justice

108; Hare's theorv of, 102; "restricted utilitarianism," 103-06;

and,110-11 Weisbrod, Burton, 222x17

preferences and, 106-07; Pareto

Welfare economics, 109, 144

principle and, 108; liberty and, 146

W e t l b a n k J . H . , 205x2 White supremacy, 133-35

Vacuous theories, 4 1 - 4 2 , 4 8 , 5 2 , 57, 115 Value problem-, immediate difficulty and, 6 - 7 ; preference satisfaction

ing, 26

and, 7 - 8 ; paternalism and, 8; and

LYollope, Anthony, 165-67, 228«/

problem, 6—7 Want-regardmg theories ot the good,

cal utilitarianism, 51-52, 7 9 - 8 0 ;

and, 6 - 9 ; want-regarding criteria

" T n l e m m a " ot equal opportunity, 31-35

215x/5, 2 1 6 « 2 2 , 2 3 0 « 2 4 Want-regarding criteria, and value

Warner-Amex Qube system, 3 6 - 3 7

rion, 2 4 - 2 5 ; maximm violating,

28-29

Walzer, Michael, 6 3 - 6 6 , 78, 119, 184,

2 4 - 2 5 ; equality and, 46; classi-

2 5 - 2 6 ; numbers criterion violatTransitivity, and structure problem,

"ethic" ot, 175; and principle ot

future generations, 9 - 1 9 ; contextdependent strategy and, 9—10;

Whitman, Walt, 16 Wiggins, fames W., 226x4 Williams, Bernard, 3 1 , 2 1 0 « 4 , 2 I 3 « 4 , 2 1 8 x 3 , 2 2 1 « 2 , 221x4, 2 2 2 x « 9 ~ i 0 , 222x17 Wilson, William fulius, 230*23 Wolff, Robert Paul, 3 7 , 5 2 , 5 4 - 5 7 , 6 1 , 2 1 2 « 4 , 2 1 4 x 1 , 2 1 5 x 5 , 215x9

identity-specific notion ot harm

wbiiheim's paradox, 223x4

and, 9 - 1 0 ; laissez-faire and, 11;

Wrongful lite lawsuits, 12, 2 0 6 - 0 7 x 3 ,

restriction and. I t ; utilitarianism

207x7