Reflections on Rawls

Re.ections on Rawls An Assessment of his Legacy Edited by Shaun P. Young Reflections on Ra wls The late John Rawls ...

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Re.ections on Rawls An Assessment of his Legacy

Edited by Shaun P. Young

Reflections on Ra

wls

The late John Rawls was one of the most inspiring, provocative and in.uential political philosophers of the twentieth century. In this collection a panel of distinguished political philosophers critically explore the intellectual legacy of Rawls. The chapters herein engage Rawls’s political theorizing from his earliest published writings in the 1950s to his final publication in 2001, Justice as Fairness: A Restatement and explore a diversity of issues related to his arguments, such as the attractiveness of his methodology/methodologies, and the normative coherence and empirical validity of his claims. In turn, the effectiveness both of his arguments and those of various supporters and critics are evaluated from the perspective of a variety of analytical approaches, including cosmopolitanism, communitarianism, perfectionism, liberalism, and legal theory. This book is an edifying and engaging dialogue with ideas and arguments that have provided the theoretical framework for much of contemporary political philosophy, and a thoughtful assessment of their continuing significance and place within the pantheon of political philosophy.

This book is dedicated to my mother, Eleanore Leet, my aunt, Agnes Dotzko, and my wife, Kate Bird: In the most fundamental and important sense, you have made this possible. Words alone are inadequate to convey the love and respect I have for each of you.

Reflections on Rawls An Assessment of his Legacy

Edited by Sh aun P . Young York University, Canada

© Shaun P. Young 2009 All rights reserved. N o part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Shaun P. Young has asserted his moral right under the Copyright, Designs and Patents Act, 1988, to be identified as the editor of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East Suite 420 U nion Road 101 Cherry Street Farnham Burlington Surrey, GU 9 7PT VT 05401-4405 E ngland USA www.ashgate.com British Library Cataloguing in Publication Data Reflections on Rawls : an assessment of his legacy 1. Rawls, John, 1921–2002 2. Rawls, John, 1921–2002 – Influence 3. Political science – Philosophy 4. Liberalism I. Young, Shaun P. 320’.01 Library of Congress Cataloging-in-Publication Data Reflections on Rawls : an assessment of his legacy / [edited by] Shaun P. Young. p. cm. Includes bibliographical references and index. ISBN 978-0-7546-6128-3 (hardcover : alk. paper) 1. Rawls, John, 1921–2002—Criticism and interpretation. 2. Political science—Philosophy—20th century. I. Young, Shaun P. JC251.R32R44 2008 320.092—dc22

ISBN 978-0-7546-6128-3 EISBN 978-0-7546-9341-3

2008025893

C ontents List of Tables Notes on Contributors Preface Acknowledgements Introduction Shaun P. Young

vii ix xiii xv 1

1

Rawls’s Public Reason and American Society George Klosko

2

Primary G oods versus Capabilities: Defending the G ood against the Equally G ood? Harry Brighouse and Elaine Unterhalter

45

Rawls’s Commitment to Fair Equality of O pportunity: Rethinking H is Arguments for Democratic Equality Four Decades Later Lesley A. Jacobs

61

4

John Rawls’s G enealogy of Liberalism Ronald Beiner

73

5

Rawls’s Social Contract: N ot Really Jan Narveson

91

6

Realism and Moralism in Political Theory: The Legacies of John Rawls William A. Galston

7

John Rawls: Liberalism at the Limits of Intolerance Glen Newey

131

8

Is Political Liberalism H ostile to Religion? Patrick Neal

153

9

Political Toleration and Coercive Intervention in the International Sphere Rex Martin

177

Rawls’s Priority of Rights: Quandaries and Implications for International Relations and the Issue of Intervention David P. Shugarman

199

3

10

Index

23

111

213

This page has been left blank intentionally

List of Tables 3.1 3.2 7.1

Comparing Interpretations of the Second Principle 67 Comparing Interpretations of the Second Principle Adding U tility 69 Justification of Agent-Motivation 145


N otes on Contributors Ronald Beiner is the Chair of the Department of Political Science at the U niversity of Toronto – Mississauga, and a Fellow of the Royal Society of Canada. H is publications include Hannah Arendt’s Lectures on Kant’s Political Philosophy (ed., 1982); Political Judgment (1983); Democratic Theory and Technological Society (co-ed., 1988); What’s the Matter With Liberalism? (1992); Kant and Political Philosophy (co-ed., 1993); Theorizing Citizenship (ed., 1995); Philosophy in a Time of Lost Spirit (1997); Theorizing Nationalism (ed., 1999); Canadian Political Philosophy (co-ed., 2001); Judgment, Imagination, and Politics (co-ed., 2001); and Liberalism, Nationalism, Citizenship (2003). Harry Brighouse is Professor of Philosophy at the U niversity of WisconsinMadison. H e works on the foundations of liberal theory, and is especially interested in the place of education and the family in liberalism. H e is currently working on papers on the significance of positionality for egalitarian justice, on development theory and liberal egalitarianism, on the fair distribution of power, and on whether parents have rights over their children. H e has also written extensively about education policy in both scholarly journals and the British national press. H is publications include On Education (2006); Justice (2005); and School Choice and Social Justice (2000), as well as numerous articles on contemporary liberalism, social justice, and the work of John Rawls. H e is co-editor, with Randall Curren, Mitja Sardoc, and Janez Justin, of the journal Theory and Research in Education. William Galston holds the Ezra Zilkha Chair in G overnance Studies at the Brookings Institution and is also College Park Professor at the U niversity of Maryland. H is publications include Public Matters: Essays on Politics, Policy and Religion (2005); The Practice of Liberal Pluralism (2004); Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (2002); Liberal Purposes: Goods, Virtues, and Diversity in The Liberal State (1991); Justice and the Human Good (1980); and numerous relevant articles published in various scholarly journals. Lesley Jacobs is Director of the York Centre for Public Policy and Law, and Professor of Philosophy and Political Science at York U niversity (Canada). H is publications include Pursuing Equal Opportunities: The Theory and Practice of Egalitarian Justice (2004); John Stuart Mill’s The Subjection of Women (1999), co-edited with Richard Vandewetering; The Democratic Vision of Politics: An Introduction to Modern Political Philosophy (1997); Rights and Deprivation (1993); and numerous articles in the areas of modern political, moral and legal

Re.ections on Rawls

philosophy, social justice, law and society in Canada and the U nited States, and the modern welfare state. George Klosko is the H enry L. and G race Doherty Professor of Politics at the U niversity of Virginia. H is research interests include contemporary political theory, especially issues in analytical and normative theory, and the history of political thought. H is publications include Political Obligations (2005); “An Empirical Approach to Political Liberalism,” in Political Liberalism: Variations on a Theme, ed. Shaun Young (2004); Jacobinism and Utopianism: The Political Theory of Fundamental Moral Reform (2003); Perfectionism and Neutrality: Essays in Liberal Theory, co-edited with Steven Wall (2003); Democratic Procedures and Liberal Consensus (2000/2004); History of Political Theory: An Introduction, Volume I: Ancient and Medieval Political Theory; Volume II: Modern Political Theory (1993, 1995); “Rawls’s ‘Political’ Philosophy and American Democracy,” American Political Science Review 87 (1993): 348–59; The Principle of Fairness and Political Obligation (1992; 2nd edn 2004); and The Development of Plato’s Political Theory (1986; rev. edn 2007). Rex Martin is Professor of Philosophy at the U niversity of Kansas and H onorary Professor in the School of European Studies at Cardiff U niversity. H is publications include Historical Explanation: Re-enactment and Practical Inference (1977; Chinese translation, 2005), Rawls and Rights (1985), and A System of Rights (1993/1997; Spanish translation, 2001). H e and Mark Singer are the editors of G.C. MacCallum, Legislative Intent, and Other Essays on Law, Politics and Morality (1993). H e edited the revised edition of R.G . Collingwood’s Essay on Metaphysics for the Clarendon Press of O xford U niversity Press (1998/2002). Most recently, he and David Reidy edited Rawls’s Law of Peoples: A Realistic Utopia? (2006). H e is also the author of numerous articles in the fields of political and legal philosophy (in particular rights, and economic justice), the history of political thought, and the philosophy of history. H e has been active in the International Association for Philosophy of Law and Social Philosophy (IVR), and was a member of the IVR Executive Committee, 1991–2003, and Vice President, 1995–2003. H e was President of the American Section of IVR in 1993–1995. H e also served as Chair of the American Philosophical Association’s Committee on Philosophy and Law during that same period, 1992–1995. Jan Narveson is Distinguished Professor Emeritus of Philosophy at the U niversity of Waterloo. H e is or has been also on the editorial boards of many journals, such as Ethics, Social Philosophy and Policy, Journal of Social Philosophy, International Journal of Applied Philosophy, Philosophy Research Archives, the Journal of Value Inquiry, the Canadian Journal of Philosophy, Dialogue, and Public Affairs Quarterly. H is publications include You and the State: A Short Introduction to Political Philosophy (2008); Morality and Utility, Moral Issues, editor; The Libertarian Idea (1989; re-published by Broadview Press, 2000);

Notes on Contributors

xi

Moral Matters (2nd edn, with changes, 1999), Political Correctness – For and Against, by Marilyn Friedman and Jan N arveson (1995); and For and Against the State, co-edited with John T. Sanders (1996); as well as dozens of essays in numerous scholarly journals. Patrick Neal is Associate Professor of Political Science at the U niversity of Vermont. H is publications include Liberalism and Its Discontents (1997), as well as numerous articles on various aspects of liberal political theory, especially the later work of John Rawls. Glen Newey is Professor of Politics and International Relations at Keele U niversity. H is principal interests are political philosophy, truth and deception in democratic politics, and the politics of toleration. H is publications include The Political Theory of John Gray (2006), co-editor with John H orton; Routledge Philosophy Guidebook to Hobbes and Leviathan (2002); After Politics: The Rejection of Politics in Contemporary Liberal Philosophy (2001); Virtue, Reason and Toleration (2000); as well as numerous articles in journals such as Dialogue: Canadian Philosophical Review, Political Studies, Public Affairs Quarterly, the Journal of Value Inquiry, and Res Publica. David Shugarman is Professor of Political Science at York U niversity. H e served as the Master of McLaughlin College from 1992–2004 and as the Director of York’s Centre for Practical Ethics from 1999 to 2008. H is research interests are political philosophy and public policy, with emphases on ethical politics both domestically and internationally, rationality and politics, and theories of democracy. H e is currently leading a Canadian International Development Agency research project on ethical governance in collaboration with a ministry of the Chinese G overnment. H is publications include “Burke,” in Interpreting Modern Political Philosophy, edited by A. Edwards and J. Townshend (2002); Cruelty and Deception: The Controversy Over Dirty Hands in Politics (2000), co-edited with Paul Rynard; and Honest Politics: Seeking Integrity in Canadian Public Life (1997), co-authored with Ian G reene. Elaine Unterhalter is a Reader in Education and International Development, in the Department of Educational Foundations and Policy Studies at the Institute of Education, U niversity of London. H er research interests are gender, education and development, particularly in South Africa, India and Bangladesh. H er publications include Gender, Schooling and Global Social Justice (2007), Beyond Access: Developing Gender Equality in Education (2005), co-editor with Sheila Aikman; Practising Gender Equality in Education: Programme Insights (forthcoming), co-author with Sheila Aikman; Sen’s Capability Approach and Social Justice in Education (forthcoming), co-editor with Melanie Walker; and numerous articles and book chapters on related matters.

xii

Reflections on Rawls

Shaun P. Young is an External Fellow of McLaughlin College, and an External Associate at the York Centre for Practical Ethics, both at York U niversity (Canada). H is publications include Beyond Rawls: An Analysis of the Concept of Political Liberalism (2002); Political Liberalism: Variations on a Theme (2004), editor; Reasonableness in Liberal Political Philosophy (2008), editor; and a number of articles examining various aspects of liberal political philosophy. Forthcoming works include a book entitled John Rawls: The Search for Justice and Stability in a Plural World (under contract with the State U niversity of N ew York Press). H e is a member of the Editorial Board of Minerva – An Internet Journal of Philosophy.

Preface The work of John Rawls cast an immense shadow over the discipline of political philosophy. That fact is more than amply demonstrated by the volume of scholarship that is devoted to analyzing his arguments. Yet, statistics alone do not adequately convey the degree of Rawls’s influence. Arguably, a more meaningful indication is provided by noting that it is now impossible to engage in a serious discussion of the concept of justice without reference – whether positive or negative – to his work. O ne might reasonably ask: What is it about Rawls’s work that could generate such an impact? Though it possesses many qualities that could help explain its phenomenal reception, I would like to suggest that the most important feature of Rawls’s work is its sincere and passionate concern with the question of justice. Despite their often demanding character, Rawls’s arguments clearly exhibit a fervent desire to contribute to the realization of a world characterized by equal respect and reasonableness, a world in which all citizens possess a meaningful possibility of living a decent, fulfilling life. The principal stimulus for this collection is a wish to contribute to the recognition of the value of Rawls’s project and his related efforts. Importantly, one need not agree with Rawls’s conclusions in order to acknowledge the value of his work. In a world increasingly troubled by political conflict, instability, and violence, Rawls’s work offers a foundation upon which to develop an effective framework for productive dialogue, for those “who will but consult it” (as Locke would say); and, insofar as people remain willing to attempt to resolve their differences through respectful dialogue, the emergence of Rawls’s “realistic utopia” remains a possibility. Rawls has bequeathed a valuable legacy, and the onus now rests with those who remain and those to follow to continue his work.


Acknowledgements I am extremely grateful for the opportunity to acknowledge those who in a variety of ways have contributed to the development of this collection. First, I would like to express my immense gratitude to the contributors. The theorists whose work constitutes the body of this collection are scholars for whom I have great respect and admiration, and whose work has been both a joy to read and enormously beneficial to my own research. It was a genuine pleasure and privilege to have them involved in this project. Second, I wish to thank the Social Sciences an�� d H umanities Research Council of Canada Aid to Scholarly Conferences and Workshops in Canada program. The development of this collection was facilitated by a two-day workshop convened August 18–19, 2007, at York U niversity in Toronto, Canada. The Workshop was principally funded by a generous grant from the aforementioned program; it also benefitted from the patronage of Anne Minas (a well-wishing retired philosopher) and Ian G reene, Master of McLaughlin College, York U niversity, which graciously hosted the event. The assistance offered by Ian and his staff significantly decreased the challenges associated with organizing such an event. Similarly, thanks are due to David G ordon for his help in preparing for the Workshop. I wish to also express my appreciation to Jerry G aus, Jon Mandle, and Steve N ewman, who participated in the Workshop and provided what all in attendance agreed was extremely valuable feedback on drafts of the contributions presented – the quality of this collection was unquestionably improved as a result of the thoughtful comments provided by Jerry, Jon, and Steve. The O ffice of Research Services at Carleton U niversity also deserves thanks for its assistance with the development and submission of the workshop grant proposal. I would also like to express my gratitude both to my former colleagues in the Department of Political Science at Carleton U niversity – especially the Chair, Laura Macdonald – and to Peter-John Sidebottom and Ralph Walton of the O ntario Public Service for their support and encouragement. And, as always, I would like to thank Leah Bradshaw, Pat N eal, and Triadafilos (Phil) Triadafilopoulos. For more than a dozen years (has it really been that long?) Leah, Pat and Phil have provided guidance, assistance, encouragement, and friendship, all of which have proved invaluable. The idea for this collection and the related workshop first emerged while I was completing a Social Sciences and H umanities Research Council of Canada postdoctoral fellowship under the guidance of Les Jacobs in the Department of Political Science at York U niversity. I am grateful to the Council for its support and to Les for his willingness to supervise my project. It was during my Fellowship that I had the good fortune to meet Ian G reene and David Shugarman. Words are insufficient to express my gratitude for their professional and personal generosity

xvi


and kindness. I consider my meeting them to be the highlight of my Fellowship, and I know that I am both a better scholar and a better person for having done so. Finally, I would like to thank my wife, Kate Bird, and our daughters Amy and Faith. My pursuit of a career in academia has generated significant burdens for each of them, which they have accepted unhesitatingly. It is a sacrifice for which I will forever be in their debt, and one that only increases my immeasurable love for them all.

Introduction Shaun P. Young

Arguably, there have been few (if any) contemporary political philosophers who have had as great an impact as John Rawls. During his lifetime his work was referred to as “epoch-making” and “cataclysmic in its effect” on the field of political philosophy; and on numerous occasions he has been proclaimed “the most important political philosopher of the twentieth century,” or something equally celebratory. A number of individuals have gone so far as to credit Rawls with reviving political philosophy, breathing new life into what was, according to Peter Laslett’s now famous 1956 declaration, a dead discipline and once again making it a valid and valuable enterprise. While the accuracy of such a claim has been �� Ben Rogers, “Portrait: John Rawls,” Prospect (2000). [http://www.prospectmagazine. co.uk/highlights/portrait_johnrawls/index.html.] Accessed May 11, 2000. �� Victoria Davion and Clark Wolf, “Introduction: From Comprehensive Justice to Political Liberalism,” in Victoria Davion and Clark Wolf (eds), The Idea of a Political Liberalism: Essays on Rawls (Lanham: Rowman and Littlefield, 2000), p. 1. See also, for example, Chandran Kukathas and Philip Pettit, Rawls: “A Theory of Justice” and Its Critics (Stanford: Stanford U niversity Press, 1990), esp. pp. 1–16; Thomas Pogge, John Rawls: His Life and Theory of Justice, trans. Michelle Kosch (N ew York: O xford U niversity Press, 2007); and Samuel Freeman, Justice and the Social Contract: Essays on Rawlsian Political Philosophy (N ew York: O xford U niversity Press, 2006). �� Thomas N agel, “Justice, Justice, Shalt Thou Pursue Justice,” The New Republic, O ctober 25 (1999): 36; see also Thom Brooks and Fabian Freyenhagen, “Preface,” in Thom Brooks and Fabian Freyenhagen (eds), The Legacy of Rawls (London: Continuum, 2005), p. vii. �� For example, Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge: Cambridge U niversity Press, 2003); Thomas N agel, “Rawls and Liberalism,” in Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge U niversity Press, 2003), p. 62; Daniel Dombrowski, Rawls and Religion: The Case for Political Liberalism (Albany: State U niversity of N ew York Press, 2001), p. vii; Robert G eorge and Christopher Wolfe (eds), Natural Law and Public Reason (Washington, DC: G eorgetown U niversity Press, 2000), p. 1; Rogers, “Portrait: John Rawls”; and Charles Larmore, “The Moral Basis of Political Liberalism,” Journal of Philosophy 96/12 (1999): 599. For example, Brooks and Freyenhagen, “Introduction,” The Legacy of Rawls, p. 1; Ken G ewertz, “John Rawls,” Harvard University Gazette (2002). [http://www.hno. harvard.edu/gazette/2002/12.05/03-rawls.html.] Accessed February 28, 2006; Ben Rogers, “O bituary: John Rawls,” The Guardian (2002). [http://www.guardian.co.uk/obituaries/ story/0,3604,848488,00.html.] Accessed N ovember 27, 2002; Davion and Wolf, The Idea of a Political Liberalism, pp. 1–2; Joseph G rcic, Ethics and Political Theory (Lanham: U niversity


questioned, one thing seems indisputable: Rawls redefined late twentieth-century political philosophy, altering its “premises and principles.” Indeed, “political philosophy since the early 1970s has been – at least in the English-speaking world – in very substantial part a commentary on Rawls’s work.” Rawls’s theorizing was fundamentally animated�� by a desire to address the problem of political (in)stability in modern constitutional democracies, a problem whose presence he understood to facilitate all types of injustice. H e concluded that the most effective manner in which to resolve that problem is to ensure that all citizens are treated fairly. H e observed that modern constitutional democracies are characterized by a plurality of competing, conflicting and often irreconcilable and incommensurable beliefs. In turn, only by establishing and maintaining a governance framework that is perceived to treat all interests fairly can one hope to reduce to an unproblematic or manageable level the likelihood of divisive, destabilizing conflict among the members of a given society. Moreover, when one acts fairly one also acts justly. In essence, then, justice is a prerequisite of political stability. Rawls would spend more than 50 years developing and refining a conception of justice that he believed could offer the type of governance framework necessary to manage the problem of political (in)stability effectively

Press of America, 2000), p. v; Rogers, “Portrait: John Rawls”; John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 1999); Jeremy Waldron, “The Plight of the Poor in the Midst of Plenty,” London Review of Books 21/14 (1999). [http://www.lrb.co.uk/v21/n14/wald2114.htm.] Accessed July 15, 2000; Brian Barry, “Political Theory O ld and N ew,” in Robert G oodin and H ans-Dieter Klingemann (eds), A New Handbook for Political Science (O xford: Cambridge U niversity Press, 1996), p. 537. Amy G�� utmann, “Communitarian Critics of Liberalism,” Philosophy and Public Affairs 14/3 (1985), 309. Though G utmann restricted her reference to “the premises and principles of contemporary liberal theory (emphasis added),” given the hegemonic status that liberal theory achieved in the twentieth century, I believe that mine is a valid modification to G utmann’s claim. John G ray, Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age (N ew York: Routledge, 1995),�� p. 1; see also, for example, H ilary Putnam, “John Rawls,” Proceedings of the American Philosophical Society 149/1 (2005): 115; Barbara H erman, “Editor’s Foreword,” in John Rawls, Lectures on the History of Moral Philosophy, ed. Barbara H erman (Cambridge, MA: H arvard U niversity Press, 2000), p. xi; Jon Mandle, What’s Left of Liberalism? An Interpretation and Defense of Justice as Fairness (Lanham: Lexington Books, 2000), pp. 3–4; Sheldon Wolin, “The Liberal/Democratic Divide: O n Rawls’s Political Liberalism,” Political Theory 24/1 (1996): 97; and Stephen Mulhall and A dam S wift, Liberals and Communitarians (O xford: Blackwell Publishers, 1992), p. 1. Indeed, Rawls asserts that the problem of political (in)stability is not only the most critical challenge confronting modern constitutional democracies, it is also axiomatic to political philosophy. See, for example, John Rawls, Political Liberalism, paperback edn (N ew York: Columbia U niversity Press, 1996), p. xix.

Introduction

and, in so doing, provide for the realization of an acceptably just and stable liberal democracy. Rawls’s proposal has for decades been the topic of extended analysis and debate. Indeed, discourse concerning its theoretical and practical viability and attractiveness has been directly responsible for an intimidating volume of scholarship. For example, it was (conservatively) estimated that by the year 2000 there were approximately 5,000 books and articles that – to varying degrees – were devoted to an assessment of the arguments presented in A Theory of Justice10 (hereafter Theory).11 Rawls’s subsequent publications would also generate an extremely impressive (if less phenomenal) response. The now “famous” liberalcommunitarian debate that was at the forefront of Western political philosophy during the 1980s (and, to a lesser extent, the 1990s) was in large part stimulated and fueled by Rawls’s work surrounding the concept of political liberalism. More recently, Rawls’s efforts to extend his conception of justice to the realm of international politics and law has, as well, provoked a noteworthy response, generating a continually increasing body of interesting research. Among the thousands of publications stimulated by Rawls’s work are commentaries – some quite extensive and ongoing – by many of the most prominent and celebrated scholars of recent times, representing both a variety of disciplines, including philosophy, political science, economics, theology, legal theory, and sociology, and a diversity of analytical perspectives, such as communitarianism, perfectionism, Marxism, feminism, cosmopolitanism, and postmodernism. A partial list of his interlocutors (in no particular order) includes H .L.A. H art, Jürgen H abermas, Ronald Dworkin, Richard Rorty, Amartya Sen, Kenneth Arrow, Alasdair MacIntyre, Joseph Raz, Robert N ozick, Thomas N agel, Brian Barry, Charles Taylor, Thomas Scanlon, Bruce Ackerman, G .A. Cohen, Joshua Cohen, David G authier, Judith Shklar, Thomas Pogge, Michael Sandel, Susan Moller O kin, Michael Walzer, William G alston, Benjamin Barber, Martha N ussbaum, Charles Larmore, Stephen Macedo, and Iris Marion Young. It is difficult not to be impressed by such a list and, in turn, curious about the arguments that could attract such attention.

�� Rawls famously proffered his conception of justice as fairness as a framework for a “realistic utopia” (e.g., John Rawls, �� Justice as Fairness: A Restatement, ed. Erin Kelly [Cambridge, MA: H arvard U niversity Press, 2001], pp. 4, 13). H owever, it remains a matter of debate as to whether Rawls meant for his conception of justice to provide the basis for an “ideal” polity. Amit Ron, for one, has suggested that justice as fairness is best understood as providing “a set of idealizing ‘mirrors’ through which power dynamics in society can be viewed [and their legitimacy assessed],” “not as a model for an ideal society.” Amit Ron, “Rawls as a Critical Theorist: Reflective Equilibrium after the ‘Deliberative Turn,’ ” Philosophy and Social Criticism 32/2 (2006): 173; see also, for example, 185. 10 �� John Rawls, A Theory of Justice (Cambridge, MA: H arvard U niversity Press, 1971). 11 �� Rogers, “Portrait: John Rawls.”


Foundations, Modifications, and Revisitations Rawls’s first attempt to present in detail his model of a desirable and viable conception of justice for modern constitutional democracies took the form of his monumental and landmark treatise Theory. With the publication of Theory, Rawls achieved “intellectual stardom” – to the extent that any political philosopher can lay claim to having done so.12 Twenty years in the making, this lengthy and demanding work was immediately recognized as an important contribution to the field of political philosophy. For many, Theory represented a “turning point for political philosophy,”13 a return to its “glory” days when theorists engaged grand and provocative questions about “the good society and the good for humanity”14 and produced bold and magisterial theories to answer those questions. Brian Barry, for example, has argued that, after the death of H enry Sidgwick, “nobody until Rawls produced anything that represents a continuation of the canon of political thought, as traditionally conceived.”15 Theory offered “a project of heroic proportion and classical scope”16 to a discipline starving for such fare and “became a touchstone to thinkers working both at the level of high theory and at the level of concrete practice.”17 In Theory Rawls details a doctrine that aims “to present a conception of justice which generalizes and carries to a higher level of abstraction the familiar theory of the social contract as found, say, in Locke, Rousseau, and Kant.”18 Theory was meant to offer “an alternative systematic account of justice that is superior ... to the [then] dominant utilitarianism of the [social contract] tradition.”19 in so doing, Rawls hoped to articulate a conception of justice “which best approximates our considered judgments of justice and constitutes the most appropriate moral basis for a democratic society.”20 That goal manifested itself in the form of Rawls’s �� Rogers, “Portrait: John Rawls”; similarly, see, for example, N orman Daniels, Reading Rawls: Critical Studies on Rawls’ ‘A Theory of Justice’ (Stanford: Stanford U niversity Press, 1989), p. xxxi. Though Rawls acquired significant renown for Theory (and subsequent work), he neither sought nor flaunted his well-deserved celebrity. By all accounts, he was an extremely modest man, refusing almost all awards and honors offered to him. 13 �� Davion and Wolf, The Idea of a Political Liberalism, p. 1. 14 �� Ronald Beiner, �� What’s the Matter with Liberalism? (Berkeley: U niversity of California Press, 1992), p. 1. 15 �� Barry, “Political Theory O ld and N ew,” p. 537. 16 Patrick N eal, Liberalism and Its Discontents (N ew York: N ew York U niversity Press, 1997),�� p. 71. 17 �� Fred D’Agostino, “The Legacies of Rawls,” in Thom Brooks and Fabian Freyenhagen (eds), The Legacy of Rawls (London: Continuum, 2005), p. 209. 18 �� John Rawls, A Theory of Justice, p. 11. 19 �� John Rawls, A Theory of Justice, rev. edn (Cambridge, MA: H arvard U niversity Press, 1999), p. xviii. 20 �� Ibid., p. xviii. 12

Introduction

conception of justice as fairness, arguably the centerpiece of Theory. In essence, justice as fairness is embodied in the following two principles of justice: 1. Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberties for all. 2. Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged, and (b) attached to positions and offices open to all under conditions of fair equality of opportunity.21

According to Rawls, the above principles are ones that “free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their [political] association.”22 Rawls argued that the ability of these principles to obtain the voluntary support of “free and rational persons concerned to further their own interests” meant that justice as fairness could serve as the foundation for “a reasoned, informed, and willing” public agreement that could secure the conditions needed to establish and sustain a well-ordered society – e.g., a just and stable constitutional democracy.23 The voluminous catalogue of material offering critical analyses of Theory and the immediacy of the response to its publication bear witness to its impact. The decade immediately following the original publication of Theory witnessed the appearance of “more than two thousand publications dealing with one aspect of the theory or another.”24 Equally impressive are the sales and translation statistics associated with Theory: It has sold “more than 300,000 copies in the U S alone”25 and has been translated into 28 different languages.26 Theory has become one of the

21 �� Ibid., p. 266. In Justice as Fairness: A Restatement. Rawls further revised the two principles as follows: (a) Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and (b) Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society (the difference principle) (pp. 42–3). 22 �� Rawls, A Theory of Justice, rev. edn, p. 10. 23 Rawls, Political Liberalism, paperback edn,�� p. 9. 24 �� H ilary Putnam, “John Rawls,”: 115; see also, for example, Rogers, “O bituary: John Rawls.” 25 �� Rogers, “O bituary: John Rawls”; see also Putnam, “John Rawls.” According to the obituary for Rawls published on December 5, 2002, in The Economist, as of that date Theory had sold “close to 400,000 copies”; see also Pogge, John Rawls, p. 178. 26 �� Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge: Cambridge U niversity Press, 2003), p. 1.


most commented upon and influential texts of recent times, a “modern classic”27 that “has been the inspiration, in one way or another, for much of contemporary moral and political theory.”28 Indeed, “many think [it to be] the most important work in political philosophy since the writings of John Stuart Mill.”29 S omewhat echoing (in sentiment) Samuel Taylor Coleridge’s assertion that one is either a Platonist or an Aristotelian, in 1974 Robert N ozick proclaimed that “[p]olitical philosophers now must either work within Rawls’ theory or explain why not.”30 It is safe to say, had Rawls never written another word, Theory would have assured him a prominent place in the history of political philosophy. Rawls, however, continued to ruminate on questions of justice and to reexamine the propositions presented in Theory. U pon reflection, he came to believe that certain of the arguments contained in Theory were problematic. In particular, he concluded that Theory offered an inadequate response to the problem of political (in)stability in modern constitutional democracies. H e determined that “the account of stability in part III of Theory” was not only inconsistent with “the view as a whole,” it was “unrealistic.”31 Subsequently, he endeavored to modify his arguments in such a way as to rectify that problem and other “weaknesses” left unresolved in Theory. H is efforts to correct these deficiencies were detailed in a number of essays published between 1974 and 1989.32 Those essays were �� Lawrence Solum, “Situating Political Liberalism,” Chicago-Kent Law Review 69/3 (1994): 550; see also Charles Larmore, Patterns of Moral Complexity (Cambridge: Cambridge U niversity Press, 1987), p. 119. 28 Susan O kin, “Reason and Feeling in Thinking about Justice,” Ethics 99/2 (1989): 229; see also, for example, John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 1999), p. ix; and H arry Brighouse, Justice (Cambridge: Polity Press, 2004), p. 30. 29 Burton Dreben, “O n Rawls and Political Liberalism,” in Freeman, The Cambridge Companion to Rawls, p. 316; similarly, see, for example, Daniels, Reading Rawls, p. xxxii. 30 Robert N ozick, Anarchy, State, and Utopia (N ew York: Basic Books, 1974),�� p. 183. 31 �� Rawls, Political Liberalism, paperback edn,�� pp. xvii–xix. 32 �� “Reply to Alexander and Musgrave,” Quarterly Journal of Economics 88/4 (1974): 633–55; “Some Reasons for the Maximin Criterion,” American Economic Review 64/2 (1974): 141–6; “A Kantian Conception of Equality,” Cambridge Review 96/1 (1975): 94–9; “Fairness to G oodness,” The Philosophical Review 84/4 (1975): 536–54; “The Independence of Moral Theory,” Proceedings and Addresses of the American Philosophical Association 48 (1975): 5–22; “The Basic Structure as Subject,” Philosophical Quarterly 14/2 (1977): 159–65; “Kantian Constructivism in Moral Theory,” The Journal of Philosophy 77/9 (1980): 515–72; “The Basic Liberties and Their Priority,” in Sterling McMurrin (ed.), The Tanner Lectures on Human Values (Salt Lake City: U tah U niversity Press, 1982), pp. 4–87; “Social U nity and Primary G oods,” in Amartya Sen and Bernard Williams (eds), Utilitarianism and Beyond (Cambridge: Cambridge U niversity Press, 1982), pp. 159–86; “Justice as Fairness: Political not Metaphysical,” Philosophy and Public Affairs 14/3 (1985): 223–51; “The Idea of an O verlapping Consensus,” Oxford Journal of Legal Studies 7/1 (1987): 1–25; “The Priority of Right and Ideas of the G ood,” Philosophy and Public Affairs 17/4 (1988): 251– 27

Introduction

eventually revised, synthesized, and augmented by previously unpublished material,33 to produce Political Liberalism (hereafter PL). Like Theory, PL represents the culmination of many years of reflection and writing. In terms of its character and content, PL is, according to Rawls, “a development and extension” of the project that consumed Theory: namely, to discover and articulate “the most appropriate moral basis for a democratic society.” In PL Rawls continues his attempt to design a conception of justice that can secure the conditions required to achieve a just and stable constitutional democracy. PL, however, was not merely a seamless “extension” and refinement of the arguments presented in Theory. Though similar in many respects, PL and Theory also differ in important ways.34 The most significant difference between the two is the emphasis that PL places on defining and addressing the “[practical] task of political philosophy in a democratic society”35 – Theory was not (explicitly) guided by such an objective. For Rawls, the practical task of political philosophy in a democratic society is to find a solution to the problem of political (in)stability. If political philosophy is to accomplish that task, it must answer the following question: “how is a just and free society possible under conditions of deep doctrinal conflict with no prospect of resolution?”36 In order to address that question effectively, Rawls found it necessary to make certain notable modifications to the arguments presented in Theory.37 According to Rawls, the answer to the problem of political (in)stability is to develop a conception of justice that can serve as the basis for a free and willing public agreement among the adherents of a diversity of competing, conflicting, irreconcilable and often incommensurable views, and in so doing secure the framework for a well-ordered society. Though Theory also sought to provide the framework for a well-ordered society, Rawls became convinced that the conception of justice as fairness presented in Theory could not achieve that goal – it could not provide the foundation for the type of public agreement (an overlapping consensus)38 that was necessary to secure the 76; and “The Domain of the Political and O verlapping Consensus,” New York University Law Review 64/2 (1989): 233–55. 33 �� Rawls, Political Liberalism, paperback edn,�� pp. xv–xvi. 34 �� Ibid., pp. xvii, xix. 35 �� Rawls, “Justice as Fairness: Political not Metaphysical,” p. 226; see also, for example, Rawls, Political Liberalism, paperback edn,�� p. xx; and John Rawls, Justice as Fairness: A Restatement, pp. 1–5. 36 �� Rawls, Political Liberalism, paperback edn,�� p. xxx; see also p. xx. 37 �� Rawls concluded that “�� all differences” between the conception of justice as fairness presented in Theory versus that elaborated in PL arise “from trying to resolve a serious problem” internal to the former: namely, the inconsistency between its account of stability in part III and the broader argument for stability promoted throughout that text. See, for example, Rawls, Political Liberalism, paperback edn,�� pp. �� xv–xvii. 38 �� In essence, an overlapping consensus is a voluntary agreement among the adherents of the various comprehensive doctrines that are likely to survive in a just modern


conditions needed to establish and maintain a just and stable liberal democracy.39 H e determined that, as elaborated in Theory, his conception of justice as fairness constituted a “comprehensive, or partially comprehensive” moral doctrine.40 A doctrine is “comprehensive” when it “applies to all subjects and its virtues cover all parts of life [e.g., political and nonpolitical]”41 – when it offers “a moral ideal to govern all of life.”42 A� fully comprehensive doctrine encompasses “all recognized values and virtues within one rather precisely articulated scheme of thought ... whereas a doctrine is only partially comprehensive when it comprises certain (but not all) nonpolitical values and virtues and is rather loosely articulated.”43 Rawls�� offers utilitarianism, the theories of John Stuart Mill and Immanuel Kant, and the belief systems associated with most organized religions, as examples of “fully comprehensive” doctrines�.44 A�� ccording to Rawls, most conceptions of justice have been founded upon comprehensive doctrines; however, given the ineliminable plurality of antagonistic and incompatible views that exist in modern constitutional democracies, conceptions of justice founded upon comprehensive doctrines are unable to secure the widespread support needed to obtain the soughtafter political stability. Rawls deduced that the only hope of obtaining the required public consensus lay in developing a conception of justice that avoids such comprehensiveness. In order for a single conception of justice to secure the type of support that is needed to establish and maintain a well-ordered society, said conception will have to be acceptable to the adherents of widely differing and often irreconcilable moral, religious, and philosophical beliefs. Such a conception will therefore necessarily have to restrict its scope to only those matters upon which all (reasonable) citizens can agree. Rawls concluded that, in modern constitutional democracies a conception of justice that confines its concerns to “political” (i.e., public) matters – that is, to questions concerning constitutional essentials and matters of basic

constitutional democracy (e.g., Rawls, Political Liberalism, paperback edn,�� p. 15; see also Rawls, Justice as Fairness: A Restatement, p. 32). An overlapping consensus on a political conception of justice means that, despite the inevitable presence of a plurality of conflicting and irreconcilable views, citizens of a well-ordered society are able to agree on a single conception of justice to regulate society’s main political and social institutions – its basic structure. See, for example, Rawls, Justice as Fairness: A Restatement, pp. 4, 7–8. 39 �� U nless specifically stated otherwise, I use, as Rawls has done, the terms democratic regime, constitutional democracy, and other similar terms interchangeably. See, for example, Rawls, Political Liberalism, paperback edn,�� p. 11. 40 �� Rawls, Political Liberalism, paperback edn,�� p. xviii. 41 �� Ibid., p. xxxviii, n.4. 42 �� Rawls, “Justice as Fairness: Political not Metaphysical,” 245. 43 Rawls, Political Liberalism, paperback edn,�� 175; emphasis added. 44 �� Ibid., p. 37 �� and p. 37, n.39; see also pp. 145, 78.

Introduction

justice45 – is alone in its ability to satisfy such a criterion. It is thus necessary to redraw the boundaries of concern in such a manner as to distinguish between matters of public and private interest, between the political and the nonpolitical, and embrace a conception of justice that seeks consensus on a framework for regulating and mediating only the former. What is needed, then, is a purely political conception of justice. Rawls understood this requirement to necessitate that he abandon his efforts to ground his theory of justice in a distinctively Kantian framework, and introduce and employ an important distinction that he failed to specify in Theory: namely, the distinction between “moral” and “political” philosophy. �� The introduction of that distinction, �� in turn, forced �� him to make “many other changes and ... [introduce] a family of ideas not needed before.”46 PL offers a detailed description and explanation of both Rawls’s distinction between “moral” and “political” philosophy, and the product of that distinction – his “political” conception of justice as fairness – aptly labeled political liberalism. As had been the case with Theory, scholars representing a variety of disciplines and analytical perspectives eagerly consumed and responded to PL; and like Theory, PL has attracted a great deal of attention and generated a voluminous catalogue of commentary that, in turn, served to stimulate a revitalized interest in Rawls’s corpus (which is not to suggest that in the period between the publication of Theory and the appearance of PL that Rawls’s work was no longer the focus of a significant amount of theorizing). Arguably, the idea of a purely political liberalism represents one of the most engaging and provocative developments in modern political theory.47 T he 45 �� For a more detailed account of exactly what type of issues Rawls considers to be “constitutional essentials and questions of basic justice,” see Rawls, Political Liberalism, paperback edn,�� pp. 227–30; see also p. 1, n.23. 46 Rawls, Political Liberalism, paperback edn,�� p. �� xix; see also Rawls, Justice as Fairness: A Restatement, p. �� xvii. 47 �� G enerally speaking, the concept of political liberalism has been received as an idea that first emerged as a substantive, cohesive doctrine in the post-Theory writings of Rawls, unquestionably its most famous proponent. H owever, the distinction between, and corresponding call for the separation of, the “public” and the “private” is certainly not unique either to “political” or contemporary liberals. As Joseph Raz has noted, “At least since Mill propounded the harm principle, liberal political thought has been familiar with arguments that certain true beliefs that individuals are justified in relying upon in the conduct of their private affairs may not be relied upon by governments” (Joseph Raz, “Facing Diversity: The Case of Epistemic Abstinence,” Philosophy and Public Affairs 19/1 [1990]: 4). In addition, though Rawls can properly be credited with bringing both the term and the idea of political liberalism to the forefront of contemporary political philosophy, and despite the impression to the contrary that one may reasonably secure from much of the related discourse, he has not been the only noteworthy philosopher to develop a conception of political liberalism. O thers, such as Charles Larmore, Bruce Ackerman, Judith Shklar, J. Donald Moon, G erald G aus, and G eorge Klosko – to name a few – have also produced their own conceptions�� that �� they believe differ in some significant sense from those of their fellow political liberals.

10


importance of the concept of political liberalism can (perhaps) best be demonstrated by recognizing that if it can achieve its stated goal, “it will have accomplished what no previous theory of justice, liberal or otherwise, has: it will have provided a conception of political justice that has overcome the impediments posed by controversial philosophical questions (e.g., what constitutes the good life?) and removed the paradoxical tension, extant since Plato, between political justice and justice for the individual.”48 In so doing, political liberalism will have identified the conditions necessary to establish and sustain a genuinely just and stable liberal polity and thereby resolved a riddle that has challenged and frustrated political philosophers since the birth of the discipline. To what extent do the arguments offered in PL effectively rebut or undermine not only the criticisms leveled against Theory, but also the problems that Rawls himself noted in his post-Theory writings? I�� t remains a matter of debate as to whether the modifications effected by Rawls in PL constitute “a major change” in the “aim and content” of the arguments contained in Theory. Though Rawls acknowledges “important differences” between the two texts, he believes that the arguments expounded in PL are totally consistent with the “spirit and content” of those contained in Theory.49 N evertheless, as Patrick N eal – for one – has observed, “Many maintain that the later work does mark a significant change in doctrine in a number of respects.”50 N ot surprisingly, then, there is disagreement concerning the degree to which Rawls’s “political” conception of justice succeeded in alleviating the difficulties said (either by Rawls or others) to be troubling Theory.51 Certainly, since the publication of PL there See, for example, C�� harles L armore, Patterns of Moral Complexity, �� “Political Liberalism,” Political Theory 18/3 (1990): 339–60, The Morals of Modernity (N ew York: Cambridge U niversity Press, 1996), and �� “The Moral Basis of Political Liberalism”; Bruce Ackerman, Social Justice in the Liberal State (N ew H aven: Yale U niversity Press, 1980) and �� “Political Liberalisms,” Journal of Philosophy 91/7 (1994): 364–86; Judith Shklar, “The Liberalism of Fear,” in N ancy Rosenblum (ed.), Liberalism and the Moral Life (Cambridge, MA: H arvard U niversity Press, 1989), pp. 21–38; J. Donald Moon, Constructing Community: Moral Pluralism and Tragic Conflicts (Princeton: Princeton U niversity Press, 1993); G erald G aus, Justificatory Liberalism: An Essay on Epistemology and Political Theory (O xford: O xford U niversity Press, 1996); and G eorge Klosko, Democratic Procedures and Liberal Consensus (N ew York: O xford U niversity Press, 2000). 48 �� Shaun Young, “A U topian Fallacy? Political Power in Rawls’s Political Liberalism,” Journal of Social Philosophy 30/1 (1999): 174–5. 49 Rawls, Political Liberalism, paperback edn, p.�� xvi. �� 50 �� Patrick N eal, “Does H e Mean What H e Says? (Mis)U nderstanding Rawls’s Practical Turn,” Polity 27/1 (1994): 77. �� According to N eal, “most commentators have understood … �� [Rawls’s] practical turn [as exemplified in PL] to have resulted in a less ambitious and less provocative theory than had been advanced in A Theory of Justice.” See N eal, “Does H e Mean What H e Says? 77–9; for a similar interpretation see, for example, Davion �� and Wolf, “Introduction: From Comprehensive Justice to Political Liberalism,” pp. 3–4. 51 �� A s for addressing the criticisms leveled against Theory, Rawls argued that the changes incorporated into PL were not the consequence of criticisms raised by other

Introduction

11

have been those who have argued that in many respects Rawls’s later work effectively addresses many of the principal complaints put forward by his critics; however, that is by no means a universally agreed upon fact. Michael Sandel, to name only one prominent example, continues to argue that, despite the revisions presented in PL, Rawls’s conception of justice remains unacceptably disrespectful or inconsiderate of constitutive attachments such as religion, culture and family, and antithetical to the establishment and maintenance of a “true” community.52 O ther significant concerns remained unsatisfactorily addressed in either Theory or PL. In particular, neither text substantively engaged the “crucial moral question”53 of whether Rawls’s conception of justice as fairness could be applied with equal “success” to the realm of international relations. The conceptions of justice detailed in both Theory and PL are premised upon the notion of a “closed society,” a society that �� is “self-contained and … �� [has] �� no relations with other societies. Its members enter it only by birth and leave it only by death. This allows us to speak of them as born into a society where they will lead a complete life.”54 �� O bviously, such an approach prevents any noteworthy engagement with the application of Rawls’s conception of justice to international politics. Rawls argued that such a limitation was “�� justified … �� because �� it enables us to focus on certain main questions free from distracting details.”55 Though he accepted that a conception of justice must (eventually) address the issue of just relations with other societies and “between peoples,”56 he maintained that it is quite appropriate to “leave aside entirely” such matters “until a conception of justice for a wellordered society is at hand.”57 N ot surprisingly, there were those who disagreed with Rawls’s conclusion. Among the first to comment in some detail on the matter were Charles Beitz and T homas Pogge,58 who not only suggested that the “relevance of Rawls’s view for international relations”59 was an issue that “ought” to be addressed – indeed, for Pogge, “an inquiry of truly momentous urgency and importance,”60 but also theorists (e.g., Rawls, Political Liberalism, paperback edn, p. �� xix, n.6). Many others remain unconvinced by that claim. 52 �� Michael Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge, MA: H arvard U niversity Press, 1996), esp. pp. 3–24. 53 �� T homas Pogge, Realizing Rawls (Ithaca: Cornell U niversity Press, 1989), p. 10. 54 Rawls, Political Liberalism, paperback edn, p. 12; see also, for example, p. 41; and Rawls��, A Theory of Justice, rev. edn�� , p. 7. 55 Rawls, Political Liberalism, paperback edn, p. 12; see also, for example, pp. 40–41. 56 For example, see Rawls, Political Liberalism, paperback edn, pp. 12 and 41. 57 Rawls, Political Liberalism, paperback edn,�� p. 41; �� see �� also, for example, p. 272, n.9, and Rawls, A Theory of Justice, rev. edn, p. 7�. 58 �� Charles Beitz, Political Theory and International Relations (Princeton: Princeton U niversity Press, 1979), esp. pp. 126–76; and Pogge, Realizing Rawls, esp. pp. 211–80. 59 �� Beitz, Political Theory and International Relations, p. 129. 60 �� Pogge, Realizing Rawls, p. 215; see also p. 238.


12

offered arguments as to “what the substance of Rawls’s conception of justice might imply for the assessment of the existing world order and of various possible efforts toward global institutional reform.”61 In so doing, they also suggested ways in which Rawls’s argument might or needed to be modified if it was to be used for such a purpose. By the time PL was published, Rawls had already begun to develop his response to the arguments of (among others) Beitz and Pogge.62 H is initial efforts were first presented on February 12, 1993, in the form of an O xford Amnesty Lecture entitled “The Law of Peoples,” which was that same year published as part of an edited collection entitled On Human Rights: The Oxford Amnesty Lectures 1993.63 T he stated (principal) aims of that lecture/essay were 1) to “sketch” how “a political conception of right and justice that applies to the principles of international law and practice” could be “developed out of liberal ideas of justice similar to but more general than the idea … [of] justice as fairness”;64 and 2) to identify the extent to which liberal societies “must respect other societies organized by comprehensive doctrines” – i.e., to determine “[w]here … the reasonable limits of toleration [are] to be drawn.”65 Rawls, however, was dissatisfied with the necessarily cursory and underdeveloped character of the argument presented in the lecture/essay and its subsequent vulnerability to misinterpretation – constraints of time and space made such problems unavoidable.66 Accordingly, he worked to develop a “fuller and more satisfactory” version of his argument, which was published in 1999 as The Law of Peoples (hereafter LP).67 N ot surprisingly, both the essay and the book generated significant additional interest in the issue, which, in turn, begat an increased volume of commentary and analysis, including proposals for a more effective or desirable law of peoples – i.e., conception of justice to regulate international law and politics. As the above remarks suggest, LP represents a somewhat distinct project for Rawls, an endeavor whose character and scope differ notably from those of his previous works and forays into the realm of international relations contained 61

�� Ibid., 215–6. John Rawls, The Law of Peoples; with, “The Idea of Public Reason Revisited” (Cambridge, MA: H arvard U niversity Press, 1999�� ), p. v. 63 �� Stephen �� Shute and Susan H urley (eds), On Human Rights (N ew York: Basic Books, 1993).� 64 �� In the subsequent book version of the essay – i.e., The Law of Peoples – Rawls emphasizes that his project “is neither a treatise nor a textbook on international law.” Rawls, The Law of Peoples, p. 5. 65 John Rawls, “The Law of Peoples,” in Shute and H urley, On Human Rights, p. �� 43; see also, for example, Rawls, The Law of Peoples, p. 3. 66 �� Rawls, The Law of Peoples,�� p. v. 67 �� It is, perhaps, worth noting that Rawls does not suggest that he is completely satisfied with the argument presented in LP. 62

Introduction

13

therein.68 Yet, it also represents a logical and (seemingly) pre-ordained extension of his earlier arguments. The nature of the relationship between LP, Theory and PL is captured in various of Rawls’s remarks. For example, he emphasizes that “it is important to see that the Law of Peoples is developed within political liberalism and is an extension of a liberal conception of justice for a domestic regime to a Society of Peoples.”69 H e also notes the similarity of purpose that animates LP, Theory and PL, observing that, while the latter two seek to demonstrate the possibility of establishing and sustaining a just liberal society, the former “hopes to say how a world Society of liberal and decent Peoples might be possible.”70 H ence, in a fundamental sense the difference between the three is primarily (but certainly not only) a matter of scope. According to Rawls, the goal of his final – non-posthumous – publication, Justice as Fairness: A Restatement (hereafter JFR)71 is both “to rectify the more serious faults in A Theory of Justice that have obscured the main ideas of justice as fairness … presented in that book” and “to connect into one unified statement the conception of justice presented in Theory” and the “main ideas” contained in his essays published between 1974 and 1989.72 Though JFR essentially recapitulates (in a more succinct manner) the principal arguments expounded in PL and “The Idea of Public Reason Revisited” (hereafter IPR73), it also contains a number of �� See, for example, Rawls, A Theory of Justice, rev. edn, pp. 331–5. �� Rawls, The Law of Peoples,�� p. 9. 70 �� Ibid., p. 6. 71 �� John Rawls (Cambridge, MA: H arvard U niversity Press, 2001). 72 �� Rawls, Justice as Fairness: A Restatement, xv. Rawls states that he is referring to the essays noted herein on page 6, n. 32 (Rawls, Justice as Fairness: A Restatement, p. xv, n.2). Prima facie, at least, it would seem that the two aforementioned aims are precisely what animated the development and content of PL. If such is the case, then it does not seem unreasonable to wonder whether there might be some additional impetus behind the publication of JFR – in particular, the opportunity to introduce yet further modifications to arguments contained in previous publications. Comments made by Rawls in the “Preface” fail to resolve the general curiosity about the purpose of the book (Rawls, Justice as Fairness: A Restatement, xv–xviii), other than to suggest that it is meant to offer a suitably complete yet concise articulation of the essential features of his conception of justice as fairness – an authoritative “restatement” that effectively synthesizes the arguments presented in his previously published work (excluding LP, Lectures on the History of Moral Philosophy [ed. Barbara H erman (Cambridge, MA: H arvard U niversity Press, 2000) – hereafter LHMP], and Lectures on the History of Political Philosophy [ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 2007) – hereafter LHPP]). 73 �� John Rawls, “The Idea of Public Reason Revisited,” University of Chicago Law Review 64/3 (1997): 765–807, and “The Idea of Public Reason Revisited,” in John Rawls, The Law of Peoples, pp. 131–80.�� Rawls states that IPR constitutes the “most detailed account” of his arguments on the topic (Rawls, The Law of Peoples,�� p. vi), an attempt to “elaborate” several “important” changes to his previously published account of public reason – namely, that which appeared as Lecture VI in the 1993 version of PL – a version 68 69

14


refinements and clarifications not present in any of Rawls’s other publications. Perhaps most noteworthy are a modification to the two principles of justice, and more substantive engagements with assorted topics that had previously received only limited comment, such as Marx’s critique of liberalism, and the moral deficiencies of a polity guided by welfare-state capitalism when compared to (in particular) a property-owning democracy – i.e., the former is unable to realize “all the main political values expressed by the two principles of justice.”74 In addition, Rawls offers responses to the criticisms leveled by Susan Moller O kin and Amartya Sen (among others) concerning issues such as the inflexibility of Rawls’s notion of primary goods, and the manner in which justice as fairness addresses the legal status of gender differences, and justice in the family. JFR represents the culmination of more than 50 years of thinking and writing about how one might secure and sustain justice and political stability in religiously, morally, and philosophically diverse societies. It offers a succinct overview of the principal elements of Rawls’s conception of justice as fairness and “will [likely] become the main work from which a public understanding of … [his arguments] will be derived.”75 It seems equally likely that Theory, PL and LP will continue to receive significant attention, especially among those who seek a comprehensive understanding of the depth, breadth and evolution of Rawls’s political thought.76 that he had already sought to further “clarify” in the “Introduction” to the 1996 paperback edition of PL (Rawls, The Law of Peoples,�� p. 131, n.1). Though the original version of IPR was published in 1997, there is no indication that there are any noteworthy differences between that version and the one that appears in LP. 74 �� Rawls, Justice as Fairness: A Restatement, p. 135. 75 �� Jerome Schneewind, �� “What’s Fair is Fair,” The New York Times (June, 2001). [�� http:// www.nytimes.com/books/01/06/24/reviews/010624.24schneet.html.] Accessed February 28, 2006. 76 �� Those familiar with the entirety of Rawls’s corpus will undoubtedly note – or, perhaps, complain – that I have failed to comment on either LHMP or LHPP. It is not my intention to belittle or question in any manner the value of what are certainly significant and impressive texts. Rather, I would suggest that neither represents the type of “original” project offered by Theory, PL, LP, and JFR (which itself is described as having “originated as lectures for a course on political philosophy that Rawls taught regularly at H arvard in the 1980s” [Rawls, Justice as Fairness: A Restatement, p. xii]). LHMP and LHPP are exercises in critical review/interpretation, as opposed to attempts to develop an “original,” unified theory about a particular matter such as justice. O f course, such enterprises need not be unrelated or mutually exclusive. Indeed, the type of critical review/interpretation contained in LHMP and LHPP is typically – or, perhaps more correctly, unavoidably – present to some degree in any effort to develop an “original” theory; however, such a review/interpretation does not constitute the principal purpose of such efforts, at least not in the sense that it does in LHMP and LHPP. Quite simplistically, in LHMP and LHPP it is not Rawls’s arguments that are meant to be the focus of concern. S imilarly, though Rawls’s understanding both of the moral philosophies of H ume, Leibniz, Kant, and H egel, for example, and the political philosophies of H obbes, Locke,

Introduction

15

Examining Rawls’s Legacy G iven the prominence and unquestionable influence of Rawls’s work, it is tempting to argue à la John G ray (among others) that all political theorizing conducted during the preceding three-and-a-half decades has to a noteworthy degree been a response to Rawls’s arguments. At minimum, at least since the publication of Theory, Rawls has been and remains a leading figure in the realm of contemporary political philosophy. H is conception of justice as fairness (in its “original” and subsequent purely “political” and “global/international” incarnations) is among the most commented upon developments in contemporary political philosophy; it has been both deified and vilified; presented as a solution to the “modern political problematic”77 and, conversely, an exemplar of all that is wrong with contemporary political philosophy. The potential range of perspectives and areas of focus is evident in the chapters that comprise this collection. The multifaceted and lively debate that persists between supporters and critics of both the “early” and “later” Rawls, is a debate that is likely to continue for some time.78 What is now beyond debate is the significance of Rawls’s political theorizing. Whether one agrees or disagrees with Rawls’s conclusions, it is impossible to deny his influence. To an extent that is relatively unique among individual theorists, he helped define the conceptual framework and vernacular in which his contemporaries theorized. H e, quite literally, rearranged the landscape and the lexicon of contemporary political philosophy. As Robert N ozick noted in 1974 with regard to Theory: “It is impossible to read Rawls’ book without

Mill, and Marx, to note a few, significantly informs his theorizing about political justice (which can also properly be considered a venture in moral philosophy), the related conclusions presented by Rawls in LHMP and LHPP are not concerned to offer a unified argument respecting a particular matter (e.g., justice), but rather to help others (students, in particular) appreciate the historical and ongoing significance of the arguments and insights offered by each of the philosophers in question, which, expectedly, results in a collection of distinct commentaries that do not always share a common end, unlike the remarks presented in Theory, PL, LP, and JFR. 77 �� The “modern political problematic” is the challenge of developing a conception of justice that will (or even can) be freely and willingly endorsed by the adherents of a plurality of conflicting and irreconcilable conceptions of the good. Franklin G amwell, The Meaning of Religious Freedom: Modern Politics and the Democratic Resolution (Albany: State U niversity of N ew York Press, 1995), p. 74. 78 �� This prediction is based upon the knowledge that the debate that stimulated the development of both Theory and PL – the debate surrounding the characteristics of a just society – is a debate that has already lasted more than two millennia. See Robert Solomon and Mark Murphy, “Introduction,” in Robert Solomon and Mark Murphy (eds), What is Justice? (N ew York: O xford U niversity Press, 1990), p. 6; see also, for example, David Raphael, Concepts of Justice (O xford: Clarendon Press, 2001), p. 6; and Alan Ryan, “Introduction,” in Alan Ryan (ed.), Justice (O xford: O xford U niversity Press, 1993), p. 1.


16

incorporating much, perhaps transmuted, into one’s own deepened view.”79 Arguably, in many respects Rawls’s conception of justice as fairness has become the model against which all new formulations of justice are compared.80 The debate which Rawls’s work has both provoked and otherwise contributed to has proven to be a source of significant, ongoing engagement for many prospective, new, and established scholars – a situation that is unlikely to change during the foreseeable future. H e helped to enliven the discipline of political philosophy and ensure its continuing vitality, and has properly earned a prominent place in the canon of the discipline. Perhaps most importantly, his work has stimulated a serious and ongoing concern with the problems of justice and political stability in contemporary pluralistic societies. Though it is too early to determine definitively Rawls’s legacy, arguably, unlike many other great political philosophers, Rawls’s was also a “living” legacy insofar as he had a tangible and substantial influence on the character of moral and political philosophy during his lifetime. So, while it might be necessary to await the flight of the owl of Minerva before it is possible to secure a “true” understanding of Rawls’s legacy, it certainly does not seem unreasonable to offer suggestions at this time. The chapters that �� occupy the following pages �� offer insightful commentaries by a number of prominent figures in the field of contemporary political philosophy who are also noted interlocutors of Rawls. The result is an edifying and engaging dialogue with ideas and arguments that have provided the theoretical framework for much of contemporary political philosophy, and a thoughtful assessment of their current and future significance within the pantheon of political philosophy. T he principal goal of this collection is to provide an interesting and enriching critical exploration of the central elements of Rawls’s political theorizing, and, in so doing, usefully expand the discourse surrounding not only specific features of his work but also his (potential) legacy. O f course, it remains for the reader to determine the degree to which the text succeeds in that task. Bibliography Ackerman, Bruce, Social Justice in the Liberal State (N ew H aven: Yale U niversity Press, 1980). ———,�� “Political Liberalisms,” Journal of Philosophy 91/7 (1994): 364–86. Alejandro, Roberto, The Limits of Rawlsian Justice (Baltimore: Johns H opkins U niversity Press, 1998). Barber, Benjamin, Strong Democracy: Participatory Politics for a New Age (Berkeley: U niversity of California Press, 1984). �� N ozick, Anarchy, State, and Utopia, p. 183. �� Ronald Dworkin, for example, has suggested that Theory is “a book about justice that no constitutional lawyer will be able to ignore.” Ronald Dworkin, Taking Rights Seriously (�� Cambridge, MA: H arvard U niversity Press, 1977)�� , p. 149. 79 80

Introduction

17

Barry, Brian, The Liberal Theory of Justice: A Critical Examination of the Principal Doctrines in ‘A Theory of Justice’ by John Rawls (O xford: Clarendon Press, 1973). ———, Theories of Justice (Berkeley: U niversity of California Press, 1989). ———, “John Rawls and the Search for Stability,” Ethics 105/4 (1995): 874– 915. ———, “Political Theory O ld and N ew,” in Robert G oodin and H ans-Dieter Klingemann (eds), A New Handbook for Political Science (O xford: Cambridge U niversity Press, 1996), pp. 531–49. Beiner, Ronald, What’s the Matter with Liberalism? (Berkeley: U niversity of California Press, 1992). Beitz, Charles, Political Theory and International Relations (Princeton: Princeton U niversity Press, 1979). Bell, Daniel, Communitarianism and Its Critics (O xford: Clarendon Press, 1993). Benhabib, Seyla, “Liberal Dialogue versus a Critical Theory of Discursive Legitimation,” in N ancy Rosenblum (ed.), Liberalism and the Moral Life (Cambridge, MA: H arvard U niversity Press, 1991). Bohman, James, “Public Reason and Cultural Pluralism: Political Liberalism and the Problem of Moral Conflict,” Political Theory 23/2 (1995): 253–79. Brighouse, H arry, Justice (Cambridge: Polity Press, 2004). Brooks, Thom, and Fabian Freyenhagen, “Preface,” in Thom Brooks and Fabian Freyenhagen (eds), The Legacy of Rawls (London: Continuum, 2005). ———, “Introduction,” in Thom Brooks and Fabian Freyenhagen (eds), The Legacy of Rawls (London: Continuum, 2005). D’Agostino, Fred, “The Legacies of Rawls,” in Thom Brooks and Fabian Freyenhagen (eds), The Legacy of Rawls (London: Continuum, 2005). Daniels, N orman, Reading Rawls: Critical Studies on Rawls’ ‘A Theory of Justice’ (Stanford: Stanford U niversity Press, 1989). Davion, Victoria, and Clark Wolf (eds), The Idea of a Political Liberalism: Essays on Rawls (Lanham: Rowman and Littlefield, 2000). ———, “Introduction: From Comprehensive Justice to Political Liberalism,” in Victoria Davion and Clark Wolf (eds), The Idea of a Political Liberalism: Essays on Rawls (Lanham: Rowman and Littlefield, 2000). Dombrowski, Daniel, Rawls and Religion: The Case for Political Liberalism (Albany: State U niversity of N ew York Press, 2001). Dreben, Burton, “O n Rawls and Political Liberalism,” in Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge: Cambridge U niversity Press, 2003), pp. 316–46. Dryzek, John, Deliberative Democracy and Beyond: Liberals, Critics, Contestations (O xford: O xford U niversity Press, 2000). Dworkin, Ronald, Taking Rights Seriously (�� Cambridge, MA: H arvard U niversity Press, 1977). Etzioni, Amitai (ed.), The Essential Communitarian Reader (Lanham: Rowman and Littlefield, 1998).

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Freeman, Samuel (ed.), The Cambridge Companion to Rawls (Cambridge: Cambridge U niversity Press, 2003). ———, Justice and the Social Contract: Essays on Rawlsian Political Philosophy (N ew York: O xford U niversity Press, 2006). G alston, William, Justice and the Human Good (Chicago: U niversity of Chicago Press, 1980). G amwell, Franklin, The Meaning of Religious Freedom: Modern Politics and the Democratic Resolution (Albany: State U niversity of N ew York Press, 1995). G aus, G erald, Justificatory Liberalism: An Essay on Epistemology and Political Theory (O xford: O xford U niversity Press, 1996). G eorge, Robert, and Christopher Wolfe (eds), Natural Law and Public Reason (Washington, DC: G eorgetown U niversity Press, 2000). G ewertz, Ken “John Rawls,” Harvard University Gazette (2002). [http://www. hno. harvard.edu/gazette/2002/12.05/03-rawls.html.] Accessed February 28, 2006. G ray, John, Liberalism, 2nd edn (Minneapolis: U niversity of Minnesota Press, 1995). ———��, Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age (N ew York: Routledge, 1995). G rcic, Joseph, Ethics and Political Theory (Lanham: U niversity Press of America, 2000). G utmann, Amy, “Communitarian Critics of Liberalism,” Philosophy and Public Affairs 14/3 (1984): 308–22. ———, Identity in Democracy (Princeton: Princeton U niversity Press, 2003). H ayden, Patrick, John Rawls: Toward a Just World Order (Cardiff: U niversity of Wales Press, 2002). H erman, Barbara, “Editor’s Foreword,” in John Rawls, Lectures on the History of Moral Philosophy, ed. Barbara H erman (Cambridge, MA: H arvard U niversity Press, 2000). H obbes, Thomas, Leviathan, ed. and intro. C.B. Macpherson (London: Penguin Books, 1968). Holmes, S tephen, Passions and Constraint: On the Theory of Liberal Democracy (Chicago: U niversity of Chicago Press, 1995). Klosko, G eorge, Democratic Procedures and Liberal Consensus (N ew York: O xford U niversity Press, 2000). Kukathas, Chandran, and Philip Pettit, Rawls: “A Theory of Justice” and Its Critics (Stanford: Stanford U niversity Press, 1990). Kukathas, Chandran (ed.), John Rawls: Critical Assessments of Leading Political Philosophers, 4 vols (N ew York: Routledge, 2003). L armore, C harles, Patterns of Moral Complexity (Cambridge: Cambridge U niversity Press, 1987). ———,�� “Political Liberalism,” Political Theory 18/3 (1990): 339–60. ———,� The Morals of Modernity (N ew York: Cambridge U niversity Press, 1996).

Introduction

19

———, “The Moral Basis of Political Liberalism,” Journal of Philosophy 96 (12) (1999): 599-625. L aslett, Peter, Philosophy, Politics and Society, First Series (O xford: Basil Blackwell, 1956). MacIntyre, Alasdair, After Virtue: A Study in Moral Theory (N otre Dame: U niversity of N otre Dame Press, 1981). ———, Whose Justice? Which Rationality? (N otre Dame, Ind: U niversity of N otre Dame Press, 1988). Mandle, Jon, What’s Left of Liberalism? An Interpretation and Defense of Justice as Fairness (Lanham: Lexington Books, 2000). Martin, Rex, Rawls and Rights (Lawrence: U niversity Press of Kansas, 1985). Mill, John Stuart, Utilitarianism, On Liberty, Essay on Bentham: �� Together with Selected Writings of Jeremy Bentham and John Austin, ed. and intro. Mary Warnock (N ew York: N ew American Library, 1974). Moon, J. Donald, Constructing Community: Moral Pluralism and Tragic Conflicts (Princeton: Princeton U niversity Press, 1993). Mulhall, Stephen, and Adam Swift, Liberals and Communitarians (O xford: Blackwell Publishers, 1992). N agel, Thomas, “Justice, Justice, Shalt Thou Pursue Justice,” The New Republic, O ctober 25, 1999, 36–41. ———, “Rawls and Liberalism,” in Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge U niversity Press, 2003). N eal, Patrick, “Does H e Mean What H e Says? (Mis)U nderstanding Rawls’s Practical Turn,” Polity 27/1 (1994): 77–111. ———��, Liberalism and Its Discontents (N ew York: N ew York U niversity Press, 1997). N ozick, Robert, Anarchy, State, and Utopia (N ew York: Basic Books, 1974). O kin, Susan, “Reason and Feeling in Thinking about Justice,” Ethics 99/2 (1989): 229–49�. Pogge, T homas, Realizing Rawls (Ithaca: Cornell U niversity Press, 1989). ———, John Rawls: His Life and Theory of Justice, trans. Michelle Kosch (N ew York: O xford U niversity Press, 2007). Putnam, H ilary, “John Rawls,” Proceedings of the American Philosophical Society 149/1 (2005): 114–7. Raphael, David, Concepts of Justice (O xford: Clarendon Press, 2001). Rawls, John, “O utline of a Decision Procedure for Ethics,” Philosophical Review 60/2 (1951): 177–97. ———, “Two Concepts of Rules,” Philosophical Review 64/1 (1955): 3–32. ———, “Justice as Fairness,” Journal of Philosophy 54/22 (1957): 653–62. ———, “Justice as Fairness,” Philosophical Review 67/2 (1958): 164–94. ———, “Constitutional Liberty and the Concept of Justice,” in Carl Friedrich and John Chapman (eds), Nomos, VI: Justice (N ew York: Atherton Press, 1963), pp. 98–125. ———, “The Sense of Justice,” Philosophical Review 72/3 (1963): 281–305.

20


———, “Distributive Justice,” in Peter Laslett and W.G . Runciman (eds), Philosophy, Politics, and Society, Third Series (London: Blackwell, 1967). ———, “Distributive Justice: Some Addenda,” Natural Law Forum 13 (1968): 51–71. ———, “The Justification of Civil Disobedience,” in H ugo Bedau (ed.), Civil Disobedience: Theory and Practice (N ew York: Macmillan, 1969). ———, A Theory of Justice (Cambridge, MA: H arvard U niversity Press, 1971). ———, “Reply to Alexander and Musgrave,” Quarterly Journal of Economics 88/4 (1974): 633–55. ———, “Some Reasons for the Maximin Criterion,” American Economic Review 64/2 (1974): 141–6. ———, “A Kantian Conception of Equality,” Cambridge Review 96/1 (1975): 94–9. ———, “Fairness to G oodness,” The Philosophical Review 84/4 (1975): 536–54. ———, “The Independence of Moral Theory,” Proceedings and Addresses of the American Philosophical Association 48 (1975): 5–22. ———, “The Basic Structure as Subject,” Philosophical Quarterly 14/2 (1977): 159–65. ———, “Kantian Constructivism in Moral Theory,” The Journal of Philosophy 77/9 (1980): 515–72. ———, “The Basic Liberties and Their Priority,” in Sterling McMurrin (ed.), The Tanner Lectures on Human Values (Salt Lake City: U tah U niversity Press, 1982). ———, “Social U nity and Primary G oods,” in Amartya Sen and Bernard Williams (eds.), Utilitarianism and Beyond (Cambridge: Cambridge U niversity Press, 1982). ———, “Justice as Fairness: Political not Metaphysical,” Philosophy and Public Affairs 14/3 (1985): 223–51. ———, “The Idea of an O verlapping Consensus,” Oxford Journal of Legal Studies 7/1 (1987): 1–25. ———, “The Priority of Right and Ideas of the G ood,” Philosophy and Public Affairs 17/4 (1988): 251–76. ———, “The Domain of the Political and O verlapping Consensus,” New York University Law Review 64/2 (1989): 233–55. ———��, Political Liberalism (N ew York: Columbia U niversity Press, 1993). ———�� , “The Law of Peoples,” in Stephen Shute and Susan H urley (eds), On Human Rights (N ew York: Basic Books, 1993), pp. 41�� –�� 82. ———��, Political Liberalism, paperback edn (N ew York: Columbia U niversity Press, 1996). ———, “The Idea of Public Reason Revisited,” University of Chicago Law Review 64/3 (1997): 765–807. ———, A Theory of Justice, rev. edn (Cambridge, MA: H arvard U niversity Press, 1999).

Introduction

21

———��, The Law of Peoples; with, “The Idea of Public Reason Revisited” (Cambridge, MA: H arvard U niversity Press, 1999). ———�� , �� “The Idea of Public Reason Revisited,” in John Rawls, The Law of Peoples (Cambridge, MA: H arvard U niversity Press, 1999), pp. 131–80. ———��, Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 1999). ———��, Lectures on the History of Moral Philosophy, ed. Barbara H erman (Cambridge, MA: H arvard U niversity Press, 2000). ———��, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: H arvard U niversity Press, 2001). ———��, Political Liberalism, expanded edn (N ew York: Columbia U niversity Press, 2005). ———, Lectures on the History of Political Philosophy, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 2007). Raz, Joseph, “Facing Diversity: The Case of Epistemic Abstinence,” Philosophy and Public Affairs 19/1 (1990): 3–46. Richardson, H enry, and Paul Weithman (eds), The Philosophy of Rawls: A Collection of Essays, 5 vols (N ew York: G arland Publishing, 1999). Rogers, Ben, “Portrait: John Rawls,” Prospect (2000). [http://www. prospectmagazine. co.uk/highlights/portrait_johnrawls/index.html.] Accessed May 11, 2000. ———, “O bituary: John Rawls,” The Guardian (2002). [http://www.guardian. co.uk/obituaries/story/0,3604,848488,00.html.] Accessed N ovember 27, 2002. Ron, Amit, “Rawls as a Critical Theorist: Reflective Equilibrium after the ‘Deliberative Turn,’” Philosophy and Social Criticism 32/2 (2006): 173–91. Ryan, Alan, “Introduction,” in Alan Ryan (ed.), Justice (O xford: O xford U niversity Press, 1993), pp. 1–17. Sandel, Michael, Liberalism and the Limits of Justice (Cambridge, MA: Cambridge U niversity Press, 1982). ———, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge, MA: H arvard U niversity Press, 1996). Schneewind, Jerome, “What’s Fair is Fair,” The New York Times (June, 2001) [�� http://www.nytimes.com/books/01/06/24/reviews/010624.24schneet.html.] Accessed February 28, 2006. Shklar, Judith, “The Liberalism of Fear,” in N ancy Rosenblum (ed.), Liberalism and the Moral Life (Cambridge, MA: H arvard U niversity Press, 1989). Shute, Stephen, and H urley, Susan (eds), On Human Rights (N ew York: Basic Books, 1993). Solomon, Robert and Mark Murphy, “Introduction,” in Robert Solomon and Mark Murphy (eds), What is Justice? (N ew York: O xford U niversity Press, 1990). Solum, Lawrence, “Situating Political Liberalism,” Chicago-Kent Law Review 69/3 (1994): 549–88. Taylor, Charles, Philosophy and the Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge U niversity Press, 1985).

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The Economist. “O bituary: John Rawls” (2002). [http://www.economist.com/ people/displayStory.cfm?story_id=1477322.] Accessed February 28, 2006. Waldron, Jeremy, “Theoretical Foundations of Liberalism,” in Jeremy Waldron, Liberal Rights: Collected Papers (Cambridge: Cambridge U niversity Press, 1993). ———, “The Plight of the Poor in the Midst of Plenty,” London Review of Books 21/14 (1999) [http://www.lrb.co.uk/v21/n14/wald2114.htm.] Accessed July 15, 2000. Walzer, Michael, Spheres of Justice: A Defense of Pluralism and Equality (N ew York: Basic Books, 1983). Wolff, Robert, Understanding Rawls: A Reconstruction and Critique of A Theory of Justice (Princeton: Princeton U niversity Press, 1977). Wolin, Sheldon, “The Liberal/Democratic Divide: O n Rawls’s Political Liberalism,” Political Theory 24/1 (1996): 97–119. Young, Shaun, “A U topian Fallacy? Political Power in Rawls’s Political Liberalism,” Journal of Social Philosophy 30/1 (1999): 174–93.

Chapter 1

Rawls’s Public Reason and A merican S ociety G eorge Klosko

Rawls’s d�� octrine of public reason is a central feature of political liberalism and one of the main contributions of his later political theory. As is often the case in his later works, Rawls spends more time explicating his view than providing a convincing defense of it. In spite of the importance of public reason, questions remain about his ability to defend his conception of the view according to the position on justification developed in Political Liberalism. In particular, I do not believe a central component of public reason, to which I will refer to as “neutrality,” can be defended. In response to Rawls’s problems, I consider the kind of doctrine his view of justification could support, while noting how the difficulties troubling his argument call into question the justificatory strategy pursued in Political Liberalism and Rawls’s other late works. Discussion in this chapter is presented in six sections. In Sections I and II, partly by way of background, I review basic features of public reason and discuss Rawls’s method of establishing moral principles in Political Liberalism. Difficulties with Rawls’s method are discussed in Section III, while in Sections IV and V, I examine criticisms of neutrality from strongly religious perspectives and the extent of these views in American society, through public opinion polls. Section VI is a conclusion in which I briefly discuss what I view as a preferable justificatory strategy for neutrality, and the alternative position to which, I believe, Rawls’s strategy would actually give rise. �� John Rawls, Political Liberalism (N ew York: Columbia U niversity Press, 1993); paperback edition, with new Introduction, 1996. Rawls’s works are cited, generally in parentheses in the text, as follows: A Theory of Justice (Cambridge, MA.: H arvard U niversity Press, 1971) (TJ); “Kantian Constructivism in Moral Theory,” Journal of Philosophy 77/9 (1980): 515–72 (KC); “Justice as Fairness: Political N ot Metaphysical,” Philosophy and Public Affairs 14/3 (1985): 223–51 (JFPM); “The Idea of an O verlapping Consensus,” Oxford Journal of Legal Studies 7/1 (1987): 1–25 (IO C); Political Liberalism (PL); “The Idea of Public Reason Revisited,” University of Chicago Law Review 64/3 (1997): 765–807 (IPRR); Justice as Fairness: A Restatement (Cambridge, MA: H arvard U niversity Press, 2001) (JF). �� For the alternative strategy I believe his standpoint actually supports and the basic principles to which it would give rise, for American society, see G eorge Klosko, Democratic Procedures and Liberal Consensus (O xford: O xford U niversity Press, 2000).


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(I) Public Reason Rawls’s doctrine of public reason, as a component of political liberalism, is advanced in order to address the unavoidable pluralism of liberal societies. Believing that disagreement about comprehensive views is a permanent feature of liberal societies, rooted in basic characteristics of human reason, Rawls attempts to establish central moral principles and standards of argument to be employed in addressing political issues. In Justice as Fairness: A Restatement, Rawls describes the latter as arising through the process of reasoning that gives rise to the principles of justice. Agreement in the original position has two parts. In addition to settling on principles of justice, the representative individuals must generate “a companion agreement” on epistemological principles. This is to delimit “the guidelines for public inquiry and … the criteria as to what kinds of information and knowledge is relevant in discussing political questions” (JF, p. 89). Public reason, then, presents the “principles of reasoning” and “rules of evidence,” for determining what kinds of considerations are to be advanced in the relevant public inquiries (p. 89). As the moral principles Rawls supports are to be “freestanding,” not rooted in any particular comprehensive view, Rawls argues that public reason should be similarly freestanding. Central to Rawls’s view are restrictions on the forms of argument that can be used in the political process. Acceptable forms are limited to those that should be unobjectionable to the entire range of reasonable citizens, in spite of differences over their comprehensive views. For ease of reference, we can use the term “neutrality” to refer both to substantive doctrines and modes of argument that do not depend unavoidably on specific comprehensive views. In a pluralistic society, commitment to neutrality is bound up with preference for modes of argument that are capable of being widely agreed upon. According to Rawls, acceptable modes of argument center on “presently accepted general beliefs and forms of reasoning found in common sense, and the methods and conclusions of science, when these are not controversial” (PL, p. 224). As Rawls’s examples indicate, neutral reasons are those that are demonstrable and replicable. In a diverse society, many inhabitants could well prefer other grounds of justification, notably religious authority and interpretations of sacred texts. N eutrality, however, rules these out. Arguments from these perspectives are obviously bound up with particular comprehensive

�� The idea of the “original position” is explained below on page 26. �� For discussion of avoidable and unavoidable dependence, see Klosko, “Reasonable Rejection and N eutrality of Justification,” in G eorge Klosko and Steven Wall (eds), Perfectionism and Neutrality: Essays in Liberal Theory (Lanham: Rowman and Littlefield, 2003). In PL, Rawls says that justice as fairness satisfies neutrality of aim, though not of procedure or effect (pp. 191–4). In JF, he notes that his view favors liberal comprehensive views over others (p. 154). In both of these respects, Rawls’s position is neutral, in the sense discussed throughout this chapter. �� Rawls, PL, Lecture 6, esp. pp. 223–7; IPRR, 773–80.

Rawls’s Public Reason and American Society

25

views and so will not be acceptable to citizens whose comprehensive views are different. Restricting religious and other related modes of argument in this way is an inescapably liberal idea, in keeping with the movement against arguments from authority and intellectual obscurantism that has characterized liberal thought since its inception. A s with his position in Political Liberalism more generally, Rawls’s commitment to public reason is bound up with his concern for moral autonomy, that people be ruled by principles they accept. In a diverse society, for views or values rooted in the comprehensive views of a particular group to be coercively imposed on other groups would be a significant injustice. Both the principles according to which the basic structure of society is directed and the canons of argument and justification through which they are supported should be common to all reasonable groups – again, “freestanding” in Rawls’s terms. The importance of this conception of autonomy was central to Rawls’s theory for almost four decades. In the first formulation of his view, in “Justice as Fairness,” Rawls roots his conception of fairness in the possibility of discovering moral principles that everyone can accept. H e describes this as “the possibility of mutual acknowledgement of principles by free persons who have no authority over one another.” W hen this condition is satisfied, people should be able to “face one another openly and support their respective positions, should they appear questionable, by reference to principles which it is reasonable to expect each to accept.” Similarly, in Political Liberalism, Rawls appeals to the “liberal principle of legitimacy”: “our exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideas acceptable to them as reasonable and rational. This is the liberal principle of legitimacy” (PL, p. 217). In this chapter, I do not question the attractiveness of Rawls’s position. My concern is with its justification. G iven the deep concern with autonomy and other elements of Kantian moral philosophy Rawls evinced throughout his career, one could easily believe that his commitment to public reason stems from these sources. But according to the argument of Political Liberalism, Rawls must provide a justification that is freestanding, independent of comprehensive views, be they his or those of other citizens. O ur question, then, is how well his commitment to public reason follows from the conception of justification articulated in Political Liberalism.

�� See Jeremy Waldron, “Theoretical Foundations of Liberalism,” Philosophical Quarterly 37/147 (1987): 127–50. �� Rawls, “Justice as Fairness,” Philosophical Review 67/2 (1958): 179. �� Ibid., p. 178.

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(II) Rawls’s Political Constructivism In Political Liberalism, as in A Theory of Justice, Rawls’s principles are intended to be the outcome of a process of choice, conducted in the original position, behind a veil of ignorance. The original position is a “device of representation,” to help focus our moral ideas. Because of the pluralism of liberal societies, Rawls holds that argument must be from “intuitive ideas” that he believes are deeply rooted in liberal culture, and so subscribed to by adherents of different comprehensive views, in spite of their other differences. Rawls describes public culture as composed of “the political institutions of a constitutional regime and the public traditions of their interpretation (including those of the judiciary), as well as historic texts and doctrines that are common knowledge” (PL, pp. 13–14). The specific intuitive ideas on which Rawls focuses are a view of society as a fair system of cooperation and a conception of the person as possessing two moral powers, concerning abilities to form and revise her own conception of the good and to live on fair terms of cooperation with others. Though Rawls does not describe in detail how the intuitive ideas tie in with the choice of principles in the original position, it is clear that they are represented by central features of the original position and the deliberations of the representative individuals. Because these particular conceptions of the person and of society are built into the structure of the original position, principles of justice chosen under these conditions are thereby identified as the most suitable principles for free and equal citizens who seek to live on fair terms of cooperation with others. Rawls divides the process of construction into two stages. In the first, because of the existence of pluralism, the principles of justice (and canons of argument) are constructed through the intuitive ideas, without reference to existing comprehensive views. O nce the principles of justice are chosen in the first stage, they are reviewed in regard to whether they would be acceptable to proponents of society’s different comprehensive views, or as Rawls terms this, in regard to their contributions to “stability.” If the principles are lacking in this regard, suitable adjustments may be necessary (PL, pp. 65–6). Rawls’s turn to intuitive ideas is necessary, because he believes that liberal societies are torn by fundamental differences: the “public political culture may be of two minds at a very deep level” (PL, p. 9). The intuitive ideas are fundamental elements of the public culture, from which defensible moral principles may be developed. We collect “such settled convictions as the belief in religious toleration and the rejection of slavery and try to organize the basic ideas and principles implicit in these convictions into a coherent political conception of justice” (PL, p. 8). The intuitive ideas are intended to be generally subscribed to in ways that principles of justice are not. Rawls describes them as “public and shared ideas” (PL, p. 90). �� Exposition in this and the following sections draws on Klosko, Democratic Procedures, Ch. 7.


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(III) Problems with Rawls’s Method Although to my knowledge Rawls never explains exactly how public reason is established by political constructivism, his view can be surmised. Again, because of the pluralism of liberal societies, public reason too must be freestanding and constructed through the intuitive ideas, rather than directly from liberal culture. G iven this position, Rawls is committed to the claim that, through their acceptance of the intuitive ideas on which he focuses, liberal citizens will be able to agree not only about his principles of justice but about public reason as well. H owever, there are numerous problems with his method and, in particular, with its employment to derive public reason. To begin with, Rawls never explains central aspects of his procedure, including the precise nature of intuitive ideas. In different contexts, he describes these as “certain fundamental ideas seen as implicit in the public political culture of a democratic society” (PL, p. 13), and as “public and shared ideas” (PL, p. 90). More fully: “the political culture of a democratic society, which has worked reasonably well over a considerable period of time, normally contains, at least implicitly, certain fundamental intuitive ideas from which it is possible to work up a political conception of justice suitable for a constitutional regime” (PL, p. 38, n. 41).10 These and other formulations are so vague and abstract that it is difficult to know what Rawls means by them. But he is apparently committed to the claim that most liberal citizens would accept the relevant canons of argument, if they were presented in a certain way. Rawls undoubtedly believes that intuitive ideas correspond in some sense not only to what people believe and could recognize, but constitute the basis for working out standards that they would also recognize and accept, if the latter could be shown to be derived from the intuitive ideas. This is confirmed by Rawls’s view of how political principles can be justified to people by proceeding from premises they “publicly recognize as true” (JFPM, 229). In order for acceptance to be “free and willing” (IO C, 1987, 5, n. 8), there must be a strong correspondence between the content of the principles and subjects’ other political beliefs: “N o political conception of justice could have weight with us unless it helped to put in order our considered convictions of justice at all levels of generality, from the most general to the most particular” (PL, p. 45). Rawls’s appeal to intuitive ideas distinguishes these from the political views that people consciously hold at a given time. O bviously, if there were a strong correspondence between what people consciously believed and the contents of justice as fairness, they would easily accept it. An intuitive idea, instead, appears to be one that people are not necessarily aware of holding but to which they are committed because of their other beliefs. In “Kantian Constructivism in Moral �� For similar descriptions in the articles leading up to PL, see, e.g., JFPM, 225; IO C, 4, n.7; 6; “The Priority of Right and Ideas of the G ood,” Philosophy and Public Affairs 17/4 (1988), 252; “The Domain of the Political and O verlapping Consensus,” New York University Law Review 64/2 (1989), 235. 10

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Theory,” Rawls speaks of “underlying notions and implicitly held principles”: “[The] aim of political philosophy, when it presents itself in the public culture of a democratic society, is to articulate and make explicit those shared notions and principles thought to be already latent in common sense” (KC, 518). Confronted with proper political principles, then, people will recognize them as expressing ideas they implicitly hold. This construal is supported by the method of reflective equilibrium discussed in A Theory of Justice and referred to in Political Liberalism (TJ, pp. 19–21, 46–53, 577–86; PL, pp. 8, 28). But even if we accept an account of intuitive ideas along these lines, we must recognize that arguing from them is not without difficulties. O nce again, Rawls’s turn to intuitive ideas is necessitated by the pluralism of liberal societies. The fact that people do not agree on fundamental matters of justice makes it necessary to organize public culture around particular focal points: “[I]f we are to succeed in finding a basis for public agreement, we must find a way of organizing familiar ideas and principles into a conception of political justice that expresses those ideas and principles in a somewhat different way than before” (PL, p. 9). “[S]ince no political agreement on those disputed questions [concerning matters of justice] can reasonably be expected, we turn instead to the fundamental ideas we seem to share through the public political culture” (PL, p. 150). But Rawls never presents evidence that people agree on the particular intuitive ideas that he posits. In “Kantian Constructivism,” he describes them as “conjectured to be implicit” in liberal culture (KC, 569). Rawls notes that the intuitive ideas chosen must be the most central possible; justice as fairness must be based on “more central fundamental ideas” than other conceptions (PL, pp. 167–8). But he does not demonstrate that this is true of his two central ideas. H e never explains exactly how a given intuitive idea is derived from aspects of public culture, or shows how, of a number of possible intuitive ideas, a particular one rather than others should be the focus of theoretical attention. Along similar lines, because of the burdens of judgment, it seems unlikely that even if adherents of conflicting comprehensive views could be shown to agree on the centrality of particular intuitive ideas, they would also agree on what these mean. As we will see, among issues over which adherents of different views disagree are the precise characteristics of free and equal persons. “Freedom” and “equality” are “essentially contested” concepts.11 A mong other moral ideas important to him, the nature of “respect” also admits of different construals, while, because of deep divisions in American society, articulation of even fundamental aspects of the public culture such as the ones on which Rawls focuses – rejection of slavery and history of religious toleration – would uncover sharp differences in how these themes are understood. In the absence of strong evidence to the contrary, there is little reason to believe that citizens of liberal polities will agree more readily about these aspects of their moral views than about others. 11 �� W.B. G allie, “Essentially Contested Concepts,” Proceedings of the Aristotelian Society 56 (1955–56).


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In Political Liberalism and his later writings, Rawls expresses some reservations about the centrality of the ideas on which he focuses. For instance: “It is inevitable and often desirable that citizens have different views as to the most appropriate political conception, for the public political culture is bound to contain different fundamental ideas that can be developed in different ways” (PL, p. 227). Rawls does not seem fully to recognize that such admissions make it more important for him to establish the centrality of his ideas. Widely different construals of the intuitive ideas – such as the different conceptions of “free and equal” citizens indicated below – could lead to significant differences in the moral positions they support, including, as we will see, differences over the acceptability of neutrality. Simply positing his own view as one possibility among others significantly undermines Rawls’s overall theory. It leaves justice as fairness as no more than one possible position, which we are free to take or leave, depending on how we view the intuitive ideas. Should, then, Rawls be criticized for not demonstrating the centrality of his particular intuitive ideas? G iven his justificatory strategy in Political Liberalism, this conclusion seems unavoidable. H owever, we should recognize that demonstrating how disparate elements in liberal culture can be reconciled into a single set of intuitive ideas would be extremely difficult. The method of reflective equilibrium would require moving back and forth between different possible accounts of the intuitive ideas and American culture, to try to show the centrality of certain ones rather than others, including exactly how the former should be construed, before beginning to construct political principles upon them. But Rawls bypasses this stage by stipulating that American culture is embodied in a small set of examples he presents concerning religious toleration and the rejection of slavery, and then that these examples yield the intuitive ideas he identifies. But once again, if liberal culture yields different accounts of the intuitive ideas, Rawls must justify focusing on these examples rather than others, although this part of his argument he does not pursue. Although there is much to recommend in the conception of the person on which Rawls concentrates, the pluralism of liberal societies once again causes problems. A central component of his idea of the person is what he refers to as “the political conception of the person,” that in liberal societies, people’s public identities do not depend on their particular characteristics (PL, pp. 29–35). A person may change her hair color, her religion, even her sex, without this affecting her status as citizen and accompanying rights. I agree that these contentions may be accepted as generally recognized by American citizens – although empirical evidence to this effect would of course be highly desirable. But as I have indicated, other aspects of free and equal persons are more controversial. Rawls appears to believe that specific construals of fundamental intuitive ideas may be extracted from people’s very different comprehensive views, without themselves being affected by these differences. H e apparently does not recognize that particular ways in which a given citizen understands people as free and equal and society as a cooperative endeavor will inevitably be influenced by the overall worldview from which the intuitive

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ideas are extracted. As indicated in the above discussion, it is open to Rawls to say that he is presenting only one construal of the intuitive ideas. H owever, to the extent he wishes for this construal to be widely accepted, he is committed to his view being “based on more central fundamental ideas” than others (PL, 168). But as things stand, this last claim is largely unsupported. Since it was first developed, Rawls’s political liberalism, including his account of public reason, has been criticized for being inhospitable to strong religious beliefs.12 G iven sharp differences between Rawls’s views and conclusions reached by proponents of these criticisms, it would be surprising if they interpreted the fundamental intuitive ideas as he does. O f course, the burden of proof is on Rawls to establish that his interpretation is correct. H e must present convincing arguments that his view of the person actually bridges conflicting comprehensive views, that it undergirds strongly religious comprehensive views as well as secular. It is open to Rawls to dismiss criticisms from strongly religious perspectives. Adherents of such views, notably religious fundamentalists, may not be “reasonable” in his sense as, in order to be reasonable, one must recognize the burdens of judgment (PL, pp. 54–66). Rawls argues that he is justified in excluding unreasonable doctrines from consideration because his theory is intended to produce an overlapping consensus of reasonable doctrines (PL, pp. 36, 63–4). For the sake of argument we may grant that the views of many religious fundamentalists are not “reasonable” in Rawls’s sense. H owever, one could object to Rawls’s conception of “reasonableness” as unduly narrow.13 G iven his concerns in Political Liberalism, there are powerful normative and practical considerations in favor of including as many inhabitants of society as possible in a liberal consensus. At one point, Rawls notes that he is optimistic in assuming that, aside from certain forms of fundamentalism, all the main historical religions are reasonable comprehensive views (PL, p. 170). The problem, however, is the likelihood that views Rawls would classify as fundamentalism are adhered to by a high a percentage of the American population. A plausible estimate is somewhere between one fifth and one third of Americans – that is, between roughly 60,000,000 and 100,000,000 people.14 A conception of “reasonable” principles that immediately excludes this number of people requires strong justification.15 If we require a broad consensus, encompassing as many citizens as possible, we will have good reasons to be 12 �� William G alston “Pluralism and Social U nity,” Ethics 99/4 (1989): 714; Liberal Purposes (Cambridge: Cambridge U niversity Press, 1992), pp. 130–31; Leif Wenar, “Political Liberalism: An Internal Critique,” Ethics 106/1 (1995): 32-67; John Exdell, “Feminism, Fundamentalism, and Liberal Legitimacy,” Canadian Journal of Philosophy 24/3 (1994): 447. 13 �� Klosko, Democratic Procedures, Ch. 2. 14 �� For these figures, see ibid., Ch. 4. 15 �� Moreover, as Wenar points out, Rawls’s conception of the person could well be rejected by adherents of many non-religious comprehensive views: e.g., followers of Bentham, H ume, and H obbes (Wenar, “Political Liberalism,” 50).


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leery of employing a restrictive conception of reason and so disqualifying large numbers of citizens.16 The unsettling implication, however, is that if adherents of fundamentalist religions cannot be dismissed as unreasonable, then they too must recognize the intuitive ideas from which Rawls argues. H owever, there is strong evidence that this is not the case. (IV) Disagreements over Neutrality As we have seen, in order to defend neutrality, Rawls must demonstrate that it is part of an overlapping consensus of reasonable comprehensive views, derived from fundamental intuitive ideas rooted in the public culture of liberal societies. For ease of discussion, I will focus on American democracy. U nfortunately, Rawls’s position is suspect immediately. A conception of neutrality like the one he upholds is widely rejected by scholars, while survey evidence strongly indicates that large percentages of American citizens, probably a majority, would support neutrality’s critics. I will briefly review these criticisms, before turning to the question of the extent to which they could be countered by appeal to intuitive ideas. Probably the most common criticism of neutrality is that it is unfair. Because it restricts public expression by religious citizens while not constraining neutrality’s proponents, it relegates the former to inferior status. According to Christopher Eberle, “that doctrine is gratuitously burdensome to religious citizens: it requires of them a willingness to disobey G od and thereby imposes on them a substantial burden for which there is no compelling rationale.”17 Moreover, the charge continues, under the guise of fairness to competing comprehensive views, neutrality is biased towards the secular worldviews of the liberal theorists who uphold it and contributes to policy outcomes they prefer. To a certain extent, liberal theorists have a ready response to the first part of this objection. They believe it misses the point. The focus of Rawls’s liberal principle of legitimacy is not free speech but coercion. In concentrating on what the doctrine means for religious citizens’ abilities to express their beliefs, neutrality’s opponents fail to recognize violations of liberty to which their view could contribute. Ever looming is the prospect of majority tyranny. If citizens who reject neutrality constitute a majority in a given society, policies justifiable only by their comprehensive views may be coercively imposed on minorities, on the O n different kinds of consensus, see Klosko, Democratic Procedures, Ch. 2, Sec. 3. �� Christopher Eberle, Religious Conviction in Liberal Politics (Cambridge, MA: Cambridge U niversity Press, 2002), p. 332, his emphasis. Similarly, N icholas Wolterstoff, in Robert Audi and Wolterstorff, Religion in the Public Square (Lanham: Rowman and Littlefield, 1997), p. 94; Jeffrey Stout, Democracy and Tradition (Princeton: Princeton U niversity Press, 2004), pp. 68, 75–7. Eberle’s position requires that there be no clear justification for neutrality at all, a position he defends throughout the book. I cannot examine that issue here. H is main criticism of Rawls’s view is found in Ch. 7. 16 17


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basis of grounds the latter do not accept. For example, citizens of community X could vote for mandatory recitation of the Lord’s Prayer in school every morning (on which, see below, p. 37). Though they lack convincing neutral reasons for this policy, if they are not constrained by neutrality the X-ites could freely admit that their rationale was a desire to promote Christianity and so help convert and save the souls of non-Christians. For non-Christians, such a policy would seem tyrannical. But does this justify relegating religious citizens to inferior status? O nce again, opponents of neutrality believe that restricting non-neutral reasons limits their freedom, while in liberal societies, significant threats to minorities are actually remote. For ease of reference, I will refer to opponents of public reason as supporting “open advocacy.” A sophisticated defense of their position is presented by Michael McConnell. As well as contending that neutrality restricts the rights of its opponents, McConnell is interested in consequences. Rather than viewing neutrality as a way of accommodating differences between comprehensive views, he believes it is itself in effect a comprehensive view. What he refers to as “liberalism” is an ideology, “advocacy of a particular way of life.”18 If religious citizens subscribe to particular “worldview[s],” the same could be said of “feminists, gay-rights activists, Afro-centrists, or even secular conservatives.”19 From McConnell’s perspective, neutrality and open advocacy are competing orientations. H e denies that any law or policy could be based on premises that are actually neutral: “all are based on ideological or philosophical positions.”20 So-called neutral reasons are actually biased towards particular comprehensive views: “what passes for ‘neutrality,’ according to pluralist thinkers, is actually a deeply embedded ideological preference for some modes of reasoning and ways of life over others – rationalism and choice over tradition and conscience.”21 N ot surprisingly, if policies are made on the basis of neutral reasons, they will favor secularism. In other words, in the guise of protecting citizens from one another’s comprehensive views, neutralists use their position to insure that their own views win. This is seen in many Supreme Court cases.22 A particularly blatant, non-American example is 18

�� Michael McConnell, “‘G od is Dead and We H ave Killed H im!’: �� Freedom of Religion in the Post-Modern Age,” Brigham Young University Law Review, 172. 19 �� Ibid., 166. 20 �� Michael McConnell, “Believers as Equal Citizens,” in N ancy Rosenblum (ed.), Obligations of Citizenship and Demands of Faith (Princeton: Princeton U niversity Press, 2000), p. 104. Similar arguments abound in the literature; in regard to issues of abortion and homosexuality, see Robert G eorge, “Public Reason and Political Conflict: Abortion and H omosexuality,” Yale Law Journal 106/8 (1997): 2475–2504. 21 �� McConnell, “Believers,” p. 104. 22 �� Michael McConnell, “Religious Participation in Public Programs,” University of Chicago Law Review 59 (1992). In this connection, I should note that for Rawls, the U S Supreme Court is the exemplar of public reason (PL, pp. 231–40).


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the French decision to ban headscarves in schools.23 McConnell finds parallels to this “enforced denial of difference” in American public policy, supported by Supreme Court’s standards for assessing possible establishment of religion.24 To what extent can McConnell’s views be countered by Rawls’s justificatory strategy? In responding to this question we must recognize that McConnell’s position involves more than complaints about neutrality. Like Rawls, he believes his ideas are rooted in fundamental aspects of public culture. H e presents a different conception of free and equal citizens. McConnell contends that there are “two models of religious citizenship.” While neutralists believe in taking religion out of politics, and so insist on the secular character of the state, according to what McConnell calls “religious pluralism,” religion is allowed in the public as well as the private sphere. Citizens are allowed to express their religious identities by advocating policies that support their views. McConnell quotes William Sampson, an Irish lawyer: “Every citizen here is in his own country. To the protestant it is a protestant country; to the catholic a catholic country; and the Jew, if he pleases, may establish in it his N ew Jerusalem.”25 Thus this religious pluralism grants all citizens freedom to advocate their comprehensive views. So construed, freedom is participatory, closer to Constant’s “freedom of the ancients” than “of the moderns.”26 Because neutrality restricts this ability only for religious citizens, it denies them equal treatment in the political process. In McConnell’s words, in a democratic political system, citizens are treated equally when all are “equally free to adopt or reject arguments without any limitation arising from their metaphysical, philosophical, epistemological, or theological foundations. To tell religious citizens that their conceptions of justice or the common good must be ‘bracketed’ is to treat them as second-class citizens.”27 McConnell supports his view with appeal to the long tradition of religious advocacy throughout American history, which includes such major political initiatives as support for the abolition of slavery, for Civil Rights, and for many other causes dear to neutralists as well as religious citizens.28 Along similar lines, critics of neutrality offer an alternative construal of respect. As Eberle notes, in the literature, arguments based on respect are especially important in defending neutrality.29 In justifying public reason, Rawls generally refers to its contributions to “civility” or “civic friendship,” rather than respect,30 23

�� McConnell, “Believers,” pp. 101–2. �� Ibid., p. 101. 25 �� Ibid., p. 103. 26 Benjamin Constant, “The Liberty of the Ancients and the Liberty of the Moderns.” 27 �� McConnell, “Believers,” p. 104. 28 �� I should note that, because of “the proviso,” Rawls’s public reason does not rule these out; see IPRR, Sec. 4. 29 �� Eberle, Religious Conviction, p. 81. 30 �� Civility, JF, p. 92; IPRR, 769; “civic friendship,” IPRR, 771; PL, Introduction to new edition, p. li. “Respect” does not appear in the indexes of any of these three books; 24

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although he does invoke respect in Justice as Fairness: A Restatement: “Clearly one leading aim of public justification is to preserve conditions of effective and democratic social cooperation on a footing of mutual respect between citizens regarded as free and equal” (JF, p. 28). According to this line of argument, coercively to inflict public policies on people on grounds they could not accept is to treat them without respect. But “respect” may be construed differently. An alternative conception is presented by William G alston: “we show others respect when we offer them, as explanation, what we take to be our true and best reasons for acting as we do.”31 G alston’s view should be qualified to make explicit that appeal to non-neutral reasons follows only after failure of sincere attempts to provide justifications the minority could accept.32 But on this view, when sincere attempts have failed, appeal to non-neutral reasons is not disrespectful. Accordingly, proponents of open advocacy could counter Rawls’s conception of free and equal persons with one of their own. Even if they recognized the centrality of the values of freedom and equality in the liberal tradition and liberal culture, their alternative view would deny that this includes neutrality. O n their interpretation, free and equal persons are free to enter the public sphere armed with the full contents of their comprehensive views. They accord other citizens the same freedom and so recognize all as equal in this respect. They also recognize all citizens as free and equal in being free to participate in the political process, with equal rights in that regard. Proponents of neutrality have a ready counter to this line of argument. Even if, for the sake of argument, they were prepared to grant that open advocacy is a legitimate, alternative conception of central values in public culture, they could ask if the alternative position would adequately protect the rights of minorities. If citizens were allowed to make policy on religious grounds, minorities could be forced to go along. As indicated below, in American society, removing neutral constraints could well result in reinstituting prayer and teaching creationism in schools and similar incursions. Are there limits here? Could similar reasoning justify extreme measures, such as expelling atheists from the community or burning heretics at the stake? Proponents of open advocacy have a response. Although the risks of such outcomes are perhaps greater on their view than with neutrality, they place their confidence for protection of rights in substantive considerations, rather than restrictions on allowable arguments. As Eberle argues, although the past history of many societies is fraught with religious wars and horrific episodes of persecution, liberal citizens have learned from the past, and have taken steps

there is an entry for civility in JF, and one for civic friendship in PL, referring to the new introduction. 31 �� G alston, Liberal Purposes, p. 109. Similarly, Wolterstorff, Religion, pp. 110–11; Stout, Democracy, pp. 72–3. 32 �� See Eberle, Religious Conviction, Ch. 5; for similar attitudinal aspects of respect, W olterstorff, Religion, pp. 112–13.


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to insure that similar things will not happen again.33 The necessary remedy is freedom of religion, protected by constitutional governments. In the U nited States, protection is, of course, afforded by our long tradition of respect for the Bill of Rights. The sort of evidence necessary to support dire scenarios probably does not exist.34 Accordingly, although policies of open advocacy could curtail rights in various ways, this is only around the edges. There is little reason to fear it would usher in a reign of persecution. In the American case – although perhaps to a lesser extent in other liberal countries – constitutional protections are further supported by the diversity of society, in which a large number of different interests, including religious interests, check and counter one another. In addition to standing in the way of an overlapping consensus on moral and political principles, the pluralism of American society makes it difficult for a majority oppressively to impose its will. The classic articulation of this point of view is James Madison’s argument for an extended republic in Federalist 10. In Federalist 51, Madison classically contends that the same kind of balance of forces that he believes is necessary to protect religious liberty also protects other rights: In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government (Fed. 51).

The presence of so many different interests in society makes it difficult for majorities to form on grounds other than the public good.35 H owever, even if checks and balances between religious groups impedes domination by one particular religion, it will do far less to preserve neutrality between religion and non-religion. This appears to be an inherent problem with McConnell’s religious pluralism. While under present conditions extreme violations of rights are unlikely, the possibility of limited incursions is very real. Even if the Bill of Rights affords protection, it must be interpreted, and if the Supreme Court takes sufficient liberties, abuses cannot be ruled out. Similarly, even if the balance of competing religions in the U S makes domination by a single sect difficult, at the present time, religious citizens of different faiths and denominations are combining forces to promote a particular religious agenda. As noted above, central issues include school prayer and teaching creationism �� Eberle, Religious Conviction, p. 161. �� Ibid., Ch. 6. 35 “In the extended republic of the U nited States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good ...” (Fed. 51). 33 34

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in schools. Additional areas of concern include possible further restrictions on access to abortion, restrictions on homosexuals, and perhaps similar concerns. With a loosening of restrictions on public advocacy, incursions in these areas are probably more likely. But once again, such violations of rights, onerous as they are, should be distinguished from wholesale religious persecution. Even were the judiciary inclined to allow extreme measures, it is subject to checks from the legislative and executive branches, while American federalism provides additional protection. At the present time, there is little or no evidence that any significant group in American society wishes to impose religious orthodoxy. Even though in our largely religious country, religious beliefs and practices would likely insinuate themselves to a greater extent into various areas of public life, if this is all that is at stake, neutrality’s opponents could contend that the violations of their rights mandated by neutrality are at least equally serious. (V) The Extent of the Problem U nder the assumption that this account of open advocacy represents a coherent position, supported by an alternative interpretation of fundamental ideas in liberal culture, we must discuss the implications for Rawls’s justificatory strategy. O bviously, what this means for Rawls’s view depends in large part on how extensively held alternative views are. In this section, I explore some evidence concerning the depth of the problem. I will briefly examine survey evidence on the religious views of Americans. In the concluding section, I discuss the extent to which one possible way of addressing the problem could work. Survey evidence indicates that many Americans, probably a majority, support increasing religion’s role in public life. For our purposes here, the main point in the polls I am going to run through is their suggestion that large percentages of the American public do not subscribe to neutral restrictions – or would not, were they clearly aware of the issue. Because of limitations in the polls that are available, I discuss only issues bearing directly on religion, although it should be borne in mind that neutrality also restricts public advocacy by proponents of various nonreligious comprehensive views, and so that, in overlooking these, the evidence here is incomplete. Poll evidence shows that the U S is a religious country. According to a G allup poll conducted in June 2007, 86% of respondents believe in G od; only 6% do not.36 In each N ational Election Studies (N ES) poll conducted between 1992 and 2004, between 35% and 45% of Americans responded that “The Bible is the actual Word of G od and is to be taken literally, word for word.” In the same polls, between another 41% and 49% responded that “The Bible is the Word of G od but not

36 �� http://www.galluppoll.com/ (polls available on this website cited as G allup; downloaded June 2007).


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everything in it should be taken literally, word for word.”37 In response to G allup poll questions conducted every year between 1992 and 2006, the percentages of respondents claiming to be “ ‘born-again’ or evangelical Christians” varied between 36%, in 1992, and 43% in 2006.38 People’s religious views influence their opinions in regard to evolution vs creationism. According to a June 2007 G allup poll, only 18% of respondents believe that evolution is “definitely true,” while 35% responded that it is “probably true,” 28% that it is “definitely false,” and 16% “probably false.” Paradoxically, in the same survey, responses to questions directly about creationism differed: 39% “definitely true” and 27% “possibly true”; only 15% said it was “definitely false” and 16% “probably false.” In surveys conducted both in N ovember 2004 and February 2001, about equal percentages responded that the theory of evolution was and was not well supported by evidence, and only slightly fewer that the evidence was not adequate to make this determination. N ot surprisingly given these views, there is considerable support for teaching creationism in schools. In a March 2005 survey, 34% of respondents did not want evolution taught. While 22% would be upset at having creationism taught, 76% responded that they would not. This is as opposed to 63% who would be upset at not having evolution taught. While 30% said they would be upset at having evolution but not creationism taught, only 18% would be upset at the teaching of creationism and not evolution. Figures are similar on the issue of school prayer. G SS polled repeatedly on this and related issues between 1972 and 1998.39 In response to a question concerning the Supreme Court’s ruling outlawing prayer in school, cumulatively, 7,735 respondents supported the ruling and 11,828 opposed it. O n smaller polls conducted between 1972 and 1982, 224 respondents favored mandatory prayer; only 60 opposed it, while 420 said they would allow each community to decide. O n polls between 1983 and 1987, 209 respondents supported having “the Lord’s prayer or some Bible verse” read daily; 382 supported silent prayer, and only 126 no prayer. In additional surveys conducted between 1988 and 1991, when asked if they thought there should “be daily prayers in all public schools,” 466 respondents said “yes, definitely,” 300 “yes, probably,” 201 “no, probably,” and 236 “no definitely.” In interpreting these figures, I assume that there are no defensible neutral reasons in favor of either teaching creationism or requiring prayer in public schools. The fact that majorities of the population appear to support these policies strongly suggests that they do not support a principle of neutral justification.40 Presumably, if pressed on the issue, these people would respond along the lines of the views discussed in the previous section. Even though, given the nature of available 37

�� http://www.electionstudies.org/ these cited as N ES, downloaded June 2007. �� See, for example, the figures in Klosko, Democratic Procedures, Ch. 4. 39 �� I refer to these as G SS; http://webapp.icpsr.umich.edu/G SS/; accessed June 2007. 40 �� For extensive discussion of different belief systems in American public culture, see Klosko, Democratic Procedures, esp. Chs 4 and 6. 38


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data, these conclusions are somewhat speculative, it seems overwhelmingly clear that American public opinion provides strong reasons to doubt that a principle of neutrality would be supported by consensus levels of the American public.41 (VI) Implications The argument of this chapter has established a disconnect between Rawls’s method and his conclusions. I believe the idea of neutrality is a powerful moral idea, for the reasons Rawls expresses, and that it would be embraced by many Americans. H owever, I do not believe this idea – or other aspects of Rawls’s overlapping consensus – can be established on the basis of fundamental intuitive ideas in the public culture. In Political Liberalism and subsequent works, Rawls recognizes that his method does not allow the difference principle to be firmly established. Although Rawls believes it is the most reasonable principle of distributive justice for liberal societies, he recognizes that this opinion is subject to disagreement and so does not deny “that other conceptions also satisfy the definition of a liberal consensus.”42 H owever, given the centrality of the “liberal principle of legitimacy” to his entire theory, I do not believe Rawls can allow similar disagreement in regard to neutrality. Accordingly, if neutrality cannot be established through the method Rawls employs, another method of justification is called for. To my mind, the strategy Rawls should pursue is to provide an overtly normative defense of neutrality – rooted in his particular comprehensive view – openly acknowledged as such. In regard to this fundamental value (and other aspects of the overlapping consensus), I do not believe appeal to intuitive ideas in the public culture is a constructive way to proceed. G iven the pluralism of American society, neutrality so presented would likely be rejected by significant portions of the population – presumably, along the lines of the arguments canvassed above. But an overtly normative approach would have the considerable advantages of avoiding vagueness and improbable claims about American society. The value 41

�� O ne could defend Rawls’s position by claiming that the subjects discussed in this section do not represent constitutional essentials or matters of basic justice, and so that constraints of neutrality need not apply. Although Rawls never describes the precise limits of constitutional essentials and basic justice, I do not believe this response succeeds. Mandatory prayer in school, especially something drawn from one denomination, seems to me a significant imposition. If Rawls’s position excludes such matters from the domain of neutrality, he should be criticized for this. I quote from Justice Jackson’s eloquent opinion in the 1943 mandatory pledge of allegiance case, West Virginia State Board of Education v. Barnette, 319 U S 624 (1943): “If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” For discussion of this matter, I am indebted to Jerry G aus and Ernie Alleva. 42 PL, p. xlix (Introduction to paperback edition); similarly, pp. 228–30.


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of having people be governed by principles they are able to recognize and accept would be widely seen as valuable, though once again, probably not accepted at consensus levels. This is not to say that a method of arguing from the public culture is entirely without promise. In spite of the difficulties supporting Rawls’s own conclusions on the basis of public culture, I believe the evidence suggests that important democratic principles can be justified by Rawls’s method. As I have argued in past work, although high percentages of Americans subscribe to weak conceptions of rights and do not support extensive economic redistribution, virtually all are strongly committed to democratic procedures, as embodied in the U S system of government.43 Thus, even if Rawls’s overlapping consensus is not justifiable on the basis of consensus cultural values, something like the “constitutional consensus” discussed in an important article by Kurt Baier may be.44 However, what general support of these procedures means for justifying Rawlsian public reason remains to be discussed, while, as I have argued previously, this commitment to democratic procedures would allow restrictions on various rights of citizens – along the lines of those discussed in the last section. First, in regard to democratic procedures, although in comparison to what Rawls hoped for an outcome along these lines is disappointing,45 we should recognize that, in spite of their shortcomings, democratic procedures are able to serve the central function of political liberalism. Their importance can be seen if we look briefly at a discussion of liberal disagreements in Charles Larmore’s Patterns of Moral Complexity.46 Like other theorists, Larmore notes that political liberalism is necessitated by pervasive disagreements in liberal societies. In the portion of his book that interests us, he discusses connections between liberal disagreements and “a universal norm of rational dialogue.”47 When people disagree about specific issues, he argues, “those who wish to continue the conversation should retreat to neutral ground, with the hope either of resolving the dispute or bypassing it.”48 The question that interests us here is the nature of this neutral ground. Survey evidence concerning the beliefs and values of American citizens leads one to doubt the existence of substantive neutral moral grounds of the kind Larmore – or Rawls – suggests. It seems unlikely that there is a set of premises waiting to be discovered that would (a) be acceptable to proponents of widely different comprehensive views, and (b) also sufficiently robust to allow disputants to proceed from them �� Klosko, Democratic Procedures, Ch. 5. Kurt Baier, “Justice and the Aims of Political Philosophy,” Ethics 99/4 (1989): 771–90. 45 �� I should note the poor quality of Rawls’s arguments against constitutional consensus in PL; see Klosko, Democratic Procedures, Ch. 7. 46 Patterns of Moral Complexity (Cambridge: Cambridge U niversity Press, 1987). Exposition here draws on Klosko, Democratic Procedures, Ch. 5. 47 �� Ibid., p. 53. 48 �� Ibid., p. 53; his emphasis. 43 44


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to generally accepted conclusions on disputed moral issues. Larmore does not explain what the necessary neutral principles are, while, as we have seen, Rawls’s attempt to base them on intuitive ideas in the public culture is unconvincing. Accordingly, one great advantage of adherence to democratic procedures is that this constitutes an adequate neutral ground in Larmore’s sense. By adverting to them, disputants could resolve their disagreements through means that would be mutually acceptable. Although the principles can be viewed as lacking in terms of normative content, they are still (a) likely to be widely accepted in liberal society, and (b) able to fulfill the main function that the principles of political liberalism are supposed to fulfill. H owever, discussion in this chapter has turned up a problem with liberal procedures. Do they require neutral restrictions on comprehensive views or not? O n this issue, there is apparently wholesale disagreement in American culture, while appeal to intuitive ideas will be of little help. We could say that, since support of democratic procedures is a value almost universally held, the proper approach is to allow resort to procedures to settle the matter. This could be viewed as a kind of least common denominator. H owever, this does not settle anything. Although procedures could produce a resolution of the issue, the practical question remains: do the procedures in question restrict comprehensive views or do they not? Perhaps we could allow this issue itself to be settled procedurally, i.e., by allowing the political process to decide. But such reflexivity raises the spectre of an infinite regress: do we require neutral constraints on the procedural mechanisms that decide the issue of neutral constraints? Still, as it seems to me, in practical terms, the entire issue may – and most likely, must – be addressed through the political process, which is necessary to give substance to First Amendment rights to free speech and freedom of religion. If we simply allow the political process to decide – accepting its existing position on permitting comprehensive views or not – we will get a solution. Even if not ideal, it is a solution that could be generally accepted and provide a basis for continuing political cooperation, as each side attempts to move the political process in the direction of its favored view. Although, from the standpoint of neutral liberalism, this is not an ideal solution, and if the Supreme Court continues its recent lurch to the right, it may become increasingly distasteful to many liberal citizens in future years, it is, once again, a solution. In political life, there must be a way of settling disputes, and resort to the political process provides a way to do this, and a way that is generally accepted by almost all Americans.49 Although appeal to such mechanisms threatens some measure of the rights that neutral liberals would like to protect, at least at the present time, this is mainly at the margins. As long as Rawlsian public reason is to be justified on political rather than metaphysical grounds, its proponents would be unrealistic to hope for more. G iven the subject of this volume, I should conclude by commenting briefly on implications of the above argument for Rawls’s legacy. As it seems to me, one �� Klosko, Democratic Procedures, Ch. 5.

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lesson we may draw concerns tensions between the methodological and substantive sides of Rawls’s system. Rawls has of course made enormous contributions in both areas. A Theory of Justice is a great work because of both the principles of justice Rawls defends and the resuscitated social contract through which he defends them. H is late works make their own important methodological contribution, the idea of overlapping consensus, which in regard to substance, leads again to his two principles, supplemented by his view of public reason. But in spite of the magnitude of Rawls’s contributions in both areas, for many decades his system was plagued by inability of his designated method to establish the desired substantive view. O ver the course of his career, Rawls ran through at least three different methods: the relatively simple contract in “Justice as Fairness,” which gave way to the far more sophisticated contract featuring the veil of ignorance in A Theory of Justice,50 which in turn gave way to political liberalism and its overlapping consensus. In spite of these shifts, throughout the forty years Rawls worked on justice as fairness his conclusions of course remained essentially the same. H owever, while Rawls himself moved beyond and so essentially repudiated his two earlier methods, I believe his final method also has significant problems. In my own work, intrigued by the empirical side of political liberalism, I have attempted to determine the moral principles that a method like the one he propounded would actually yield, if they were based on more careful empirical examination of American society. Whatever one thinks of the results, as the argument of this chapter attempts to show, these principles are less robustly liberal than Rawls’s own.51 Reasons for this are not difficult to make out. American society – though to a lesser extent other liberal democracies – is less liberal, less progressive than Rawls would prefer. Establishing moral principles on the basis of its public culture must give rise to principles that are circumscribed by the only quasi-liberal tenor of existing public culture. Although Rawls did not address this problem directly, I believe his awareness of it shows through his interest in the utopian role of political theory in his last works. In the “Introduction” to Law of Peoples (LP), Rawls says that he begins and ends “with the idea of a realistic utopia” (LP, p. 6). In Justice as Fairness: A Restatement, he writes: “We view political philosophy as realistically utopian: that is, as probing the limits of practical political possibility” (JF, p. 4). I believe Rawls’s construction of his overlapping consensus reflects a similar impulse. It is not possible to say how explicitly Rawls intended this, but it seems that his concentration on what he viewed as a possible ideal skewed his assessment of what he actually confronted. American society does contain elements that embodied his favored moral ideals, most notably the traditions of free speech jurisprudence analyzed in “The Basic Liberties and their

50 �� For the need for the new contract, see Robert Paul Wolff, Understanding Rawls (Princeton: Princeton U niversity Press, 1977), Ch. 5. 51 �� See Klosko, Democratic Procedures.


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Priority.”52 But whether because of factors noted here or others, in focusing on what supported his favored moral principles, Rawls overlooked other factors with which they were in conflict. Reasonable people may disagree about how realistic the idea of an overlapping consensus – including commitment to neutrality in public reason – actually is. But I believe this idea should also be recognized as utopian, at least when assessed against how things presently stand.53 Bibliography Baier, Kurt, “Justice and the Aims of Political Philosophy,” Ethics 99/4 (1989): 771–90. Eberle, Christopher, Religious Conviction in Liberal Politics (Cambridge, MA: Cambridge U niversity Press, 2002). Exdell, John, “Feminism, Fundamentalism, and Liberal Legitimacy,” Canadian Journal of Philosophy 24/3 (1994): 441–63. G allie, W.B., “Essentially Contested Concepts,” Proceedings of the Aristotelian Society 56 (1955–56). G alston, William, “Pluralism and Social U nity,” Ethics 99/4 (1989): 711–26. ———, Liberal Purposes (Cambridge: Cambridge U niversity Press, 1992). G eorge, Robert, “Public Reason and Political Conflict: Abortion and H omosexuality,” Yale Law Journal 106/8 (1997): 2475–2504. Klosko, G eorge, Democratic Procedures and Liberal Consensus (O xford: O xford U niversity Press, 2000). ———, “Reasonable Rejection and N eutrality of Justification,” in G eorge Klosko and Steven Wall (eds), Perfectionism and Neutrality: Essays in Liberal Theory (Lanham: Rowman and Littlefield, 2003), pp. 167–90. L armore, C harles, Patterns of Moral Complexity (Cambridge: Cambridge U niversity Press, 1987). McConnell, Michael, “Religious Freedom at a Crossroads,” University of Chicago Law Review 59/1 (1992): 115–94. ———, “‘G od is Dead and We H ave Killed H im!’: Freedom of Religion in the Post-Modern Age,” Brigham Young University Law Review 1 (1993): 163–88. ———, “Believers as Equal Citizens,” in N ancy Rosenblum (ed.), Obligations of Citizenship and Demands of Faith (Princeton: Princeton U niversity Press, 2000), pp. 90–110. Rawls, John, “Justice as Fairness,” Philosophical Review 67/2 (1958): 164–94. �� “The Basic Liberties and Their Priority,” in Sterling MacMurrin (ed.), The Tanner Lectures on Human Values (Cambridge: Cambridge U niversity Press, 1982), Secs X–XI, pp. 55–72 (PL, pp. 340–56). 53 �� I am grateful to Ernie Alleva, Ryan Pevnick, Micah Schwartzman, and participants in the workshop on Rawls’s legacy for valuable comments and criticisms of earlier versions of this chapter. 52


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———, A Theory of Justice (Cambridge, MA: H arvard U niversity Press, 1971). ———, “Kantian Constructivism in Moral Theory,” The Journal of Philosophy 77/9 (1980): 515–72. ———, “The Basic Liberties and Their Priority,” in Sterling McMurrin (ed.), The Tanner Lectures on Human Values (Salt Lake City: U tah U niversity Press, 1982). ———, “Justice as Fairness: Political not Metaphysical,” Philosophy and Public Affairs 14/3 (1985): 223–51. ———, 1987. “The Idea of an O verlapping Consensus,” Oxford Journal of Legal Studies 7/1 (1987): 1–25. ———, “The Priority of Right and Ideas of the G ood,” Philosophy and Public Affairs 17/4 (1988): 251–76. ———, “The Domain of the Political and O verlapping Consensus,” New York University Law Review 64/2 (1989): 233–55. ———��, Political Liberalism (N ew York: Columbia U niversity Press, 1993). ———, Political Liberalism, paperback edn (N ew York: Columbia U niversity Press, 1996). ———, “The Idea of Public Reason Revisited,” University of Chicago Law Review 64/3 (1997): 765–807. ———, Justice as Fairness: A Restatement (Cambridge, MA: H arvard U niversity Press, 2001). Stout, Jeffrey, Democracy and Tradition (Princeton: Princeton U niversity Press, 2004), pp. 68, 75–7. Waldron, Jeremy, “Theoretical Foundations of Liberalism,” Philosophical Quarterly 37/147 (1987): 127–50. Wenar, Leif, “Political Liberalism: An Internal Critique,” Ethics 106/1 (1995): 32–67. Wolff, Robert Paul, Understanding Rawls (Princeton: Princeton U niversity Press, 1977). Wolterstorff, N icholas, “The Role of Religion in Decision and Discussion of Political Issues,” in Robert Audi and Wolterstorff, Religion in the Public Square (Lanham: Rowman and Littlefield, 1997), pp. 67–120.


Chapter 2

Primary G oods versus Capabilities: Defending the G ood against the Equally G ood? H arry Brighouse and Elaine U nterhalter

O ne of the many innovations in Rawls’s work is the development of the index of social primary goods as the way of making interpersonal comparisons for the purpose of justice. In A Theory of Justice he defends the social primary goods on the grounds that together they constitute a thin theory of the good, an account of what people would want whatever else they might want. In subsequent developments he grounds the primary goods, instead, in the idea of free and equal persons possessed of the two moral powers: “namely, the capacity for a conception of justice and the capacity for a conception of the good.” Rawls’s approach has several rivals, but we shall focus here on just one – the capabilities approach developed by Amartya Sen and Martha N ussbaum. T he capabilities approach does not look to the resources people have, but to their opportunities, or real freedoms, to achieve functionings. This approach appears to have several advantages over the social primary goods approach, and Sen explicitly offers it as a rival. Thomas Pogge has recently argued that the capabilities approach cannot be justified, and that Rawls’s social primary goods approach is, in fact, superior. The burden of this chapter is to respond to his objections. But there is a, perhaps, surprising upshot: rather than vindicating the capabilities approach, we think that we are illuminating the virtues of both approaches. Like Pogge, one of us has worked on the moral foundations of a particular area of public policy and in doing so, like him, has tended to work within a broadly Rawlsian framework. The other author

John Rawls, Political Liberalism (N ew York: Columbia U niversity Press, 1993), p. 34. �� Amartya Sen, Development as Freedom (O xford: O xford U niversity Press, 1999). �� Martha N ussbaum, Women and Human Development: The Capabilities Approach (N ew York: Cambridge U niversity Press, 2000); and Martha N ussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, MA: H arvard U niversity Press, 2006). �� See Thomas Pogge, “Can the Capability Approach be Justified?,” Philosophical Topics 30/2 (2002): 167–228; and H arry Brighouse, School Choice and Social Justice (O xford: O xford U niversity Press, 2000).

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is a social scientist whose work is influenced by the capabilities approach. But sometimes the language of capabilities better illuminates what matters than does the language of primary goods. And frequently both approaches are hard to apply. We should first elaborate our understanding of the capabilities approach as Sen defends it. H e takes issue with the approaches to evaluating social policy that focus on the aggregated benefits an initiative has for the whole society or for future generations, without regard to how it affects individuals. According to these views, for example, investing in education for women and girls is justified by its benefits not for them, but for the societies in which they live. These approaches to evaluation do not look at whether any adult or child has been discriminated against in the provision of education, because the education is not for those individuals but for a larger grouping – the community, then nation, then future generations. These views might be weakly interested in gender equality in education, but only in so far it is needed to ensure a range of social benefits. The capability approach looks at a relationship between the resources people have and what they can do with them. As Sen puts it, in a good theory of wellbeing, “account would have to be taken not only of the primary goods the persons respectively hold, but also of the relevant personal characteristics that govern the conversion of primary goods into the person’s ability to promote her ends.” W hat matters to people is that they are able to achieve actual functionings, that is: “the actual living that people manage to achieve.” Walking is a functioning, so are eating, reading, mountain climbing, and chatting. The concept of functionings reflects the various things a person may value doing or being varying from the basic (for example being adequately nourished) to the very complex (for example being able to take part in the life of the community). But when we make interpersonal comparisons of wellbeing we should find a measure which not only incorporates references to functionings, but also reflects the intuition that what matters is not merely achieving the functioning but being free to achieve it . So we should look at “the freedom to achieve actual livings that one can have a reason to value” or, to put it another way, “substantive freedoms, the capabilities, to choose a life one has reason to value.”10 A person’s capability refers to the alternative combinations of functionings that are feasible for her to achieve. Capability is thus a kind of freedom: the substantive freedom to achieve alternative functioning combinations.11 �� Elaine U nterhalter, “The Capabilities Approach and G endered Education: An Examination of South African Complexities,” Theory and Research in Education 1/1 (2003): 7–22. �� S en, Development as Freedom. �� Ibid., p. 74. �� Ibid., p. 73. �� Ibid. 10 �� Ibid., p. 74. 11 �� Ibid., p. 75.

Primary Goods versus Capabilities

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The notion of capability is essential for Sen, because someone’s actual functionings need not tell us very much about how well off she is. Consider Tony, a stockbroker who suddenly abandons his job to fast in support of world peace, and Sid, a stockbroker who is suddenly marooned on a barren island. After a week their physical state might be identical: looking at their level of functioning will not tell us the difference. But there is a difference: Tony, unlike Sid, is capable of a high level of functioning. H is low level of functioning is the result of a voluntary choice, unlike Sid’s. H ere is another example. Two 15-year-old girls participating in an international study of learning achievements both achieve poor results in mathematics. For one, despite attending a well-equipped school with highly qualified and well-motivated teachers and ample time for additional learning support, a principal reason was her decision to spend less time on mathematics homework and more time with friends in a range of leisure activities. For the other, despite her interest in mathematics and schoolwork generally, her results were largely due to long periods of absence by her teacher, who was inadequately paid, lack of a supportive culture in the school or at home for girls’ achievement in mathematics, and heavy demands on her to perform housework and childcare for other family members. While the functionings of the two girls are the same, their capabilities are different. The capabilities approach captures this difference by looking behind the actual functionings to the opportunities or freedom people have to function. N ow, we shall briefly describe Rawls’s approach, and then move on to discussion of Pogge’s criticisms of Sen. The upshot of this chapter is that the case for primary goods is unproven, because Pogge underestimates the power of the capabilities approach, and overstates the power of the primary goods approach. As we have said, we do not think that we vindicate the superiority of the capabilities approach, and in fact we believe that the best ultimate approach will be one which draws on both these approaches. The primary goods approach says that for the purpose of justice we should compare individual’s holdings of social primary goods. The list of social primary goods is arrived at by considering what conditions and resources are necessary for the development and exercise of the two moral powers of free and equal persons, viz, the capacity for a sense of justice and the capacity for a conception of the good. Those goods are i) The basic liberties (freedom of thought and liberty of conscience, etc) are the background institutions necessary for the development and exercise of the capacity to decide upon and revise, and rationally to pursue, a conception of the good. Similarly, these liberties allow for the development and exercise of the sense of right and justice under political and social conditions that are free. ii) Freedom of movement and free choice of occupation against a background of diverse opportunities are required for the pursuit of final ends as well as to give effect to a decision to revise and change them, if one so desires.

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Reflections on Rawls iii) Powers and prerogatives of offices of responsibility are needed to give scope to various self-governing and social capacities of the self. iv) Income and wealth, understood broadly as they must be, are all purpose means (having an exchange value) for achieving directly or indirectly a wide range of ends, whatever they happen to be. v) The social basis of self-respect are those aspects of basic institutions that are normally essential if citizens are to have a lively sense of their own worth as moral persons and are to be able to realize their highest order interests and advance their ends with self-confidence.

Although it is somewhat incidental to our purpose, it is worth noting that Rawls makes implicit claims about the relative importance of the contributions these goods make to overall wellbeing. H is principles of justice are structured so that no compromises are permitted with the equal liberties principle for the sake of other goods, and no compromises with the fair equality of opportunity principle are permitted for the sake of increased income and wealth. H owever, the implicit assumptions about the relative importance of the different social primary goods to wellbeing, even for the purposes of justice, are not essential to the primary goods approach. Pogge’s strategy for criticizing the capabilities approach has two parts. The first, which takes up the bulk of his paper, and with most of which we agree, is a defence of the social primary goods approach against charges made by Sen. The second, on which we focus here, is to press three objections against the capabilities approach. First, he thinks that the capabilities approach faces a serious problem in dealing appropriately with natural inequalities; second, he thinks that the approach tends to obscure the degree of unjust inequality internationally. Finally, the problem faces the capabilities approach that, because it is so closely sensitive to personal heterogeneities, it is ill-suited to the task of providing a public criterion of justice. Let us consider the first objection. O ne of the apparent advantages of the capabilities approach over the social primary goods approach is that it is sensitive to inequalities of natural endowments. Whereas the social primary goods are always resources, whose value, for the purposes of justice, is defined without regard to what the particular individual who has them can do with them, the capabilities approach always looks at how well the individual can convert her bundle of resources into functionings. O n the social primary goods approach two people with the same holdings, one of whom is ordinarily-abled and the other is paraplegic, are equally well off. But the capabilities approach counts the paraplegic as worse off (from the point of view of justice). Intuitively this should be an advantage of the capabilities approach. But Pogge denies this. Some natural inequalities are widely regarded as what he calls horizontal, such as eye and hair and skin color, height – they are not intrinsically of moral concern, and no-one is owed more resources in virtue of their possession of some feature rather than another. Pogge thinks that many natural inequalities are of this kind, and that the primary goods


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approach is superior for treating them so: “O ur awareness of the great diversity in our valuations and of the bias in favour of one’s own endowments militates against the idea of a socially shared ranking of persons’ overall endowments….”12 While the resourcist approach is supported by this conception of natural inequality as horizontal, the capability approach requires that natural inequality be conceived as vertical. When a capability theorist affirms that institutional schemes ought to be biased in favor of certain persons on account of their natural endowments, she thereby advocates that these endowments should be characterized as deficient and inferior, and those persons as naturally disfavored and worse endowed … not just in this or that respect, but overall.13

Broadly speaking, in order to get the desired result the capabilities approach has to treat disabilities always as vertical inequalities, whereas it is, in fact, desirable to treat them as horizontal inequalities, because to treat them otherwise stigmatizes the disabled person as somehow less of a person than the ordinarily-abled person. The resourcist approach, which ignores disabilities, by contrast, avoids stigma. H ow can the capabilities approach respond to this objection? It is important to see that the social primary goods approach is not completely insensitive to the difficulties disabled persons often face. Some of the functionings unavailable to disabled people are unavailable not because they suffer from physical impairments, but because social institutions are set up so as to enhance the functioning of the ordinarily-abled but not the disabled person. Take the example of London U nderground interchange stations, many of which lack elevators or ramps between different lines. The ability to change lines is thus rendered unavailable to wheelchair-bound people. It is also, incidentally, rendered extremely difficult to all ordinarily-able persons at a certain stage of their life – the first three years. Being blind, or deaf, does not make the written or spoken interactions of others inaccessible to someone: the absence of Braille and signing facilities does. The social primary goods approach can acknowledge that insofar as it is the design of social institutions that is responsible for someone’s lack of a functioning there is a prima facie case for something to be done about it. So what justifies the Pogge response is the sense, which he has, that many disabilities are not intrinsically disabling – they are mere impairments that have their impact on functioning only in conjunction with the mal-design of social institutions (a la the social model of disability). But if Pogge is right about this, or rather to the extent that he is right about it, there’s no need for the capabilities approach to disagree – it can say, “sure, the failure to function adequately does not have its source in the impairment but in the institutions – so they should be rearranged.” It does not make a fetish of correcting the individual rather than the institutions. 12

�� Pogge, “Can the Capability Approach be Justified?,” 205–6. �� Ibid., p. 206.

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But what if there really is inequality of capabilities – if those who are ‘disabled’ really cannot reach the same level of functionings as others even if there is reform of institutions? Then Pogge’s objection loses a good deal of its power. Why? First think about how the primary goods approach gets to say something about disability. It cannot straightforwardly compare the blind person and the sighted person and say that they have unequal shares of social primary goods: they do not. But in order to locate the disadvantage socially, and avoid stigmatizing the blind, it has to say, rather, that the blind person is disadvantaged by the design of social institutions. H ow is it going to establish that disadvantage? The blind person does not have an expensive taste, as, for example, we might think of someone who is sighted but prefers reading Braille over reading print, because she enjoys the tactile experience. But why not? It’s hard to explain why not without appealing to the fact that she (unlike the sighted Braille reader) lacks a valuable capability, absent but for the provision of Braille. It is hard to see how the primary goods approach can determine whether social institutions are set up to the disadvantage of the disabled without appealing to some notion of functioning. Second, think about the way that girls and boys can have access to similar resources in schools, but these similar resources can give rise to differential opportunities because of the different needs of boys and girls. A school without running water is inconvenient for everyone, but much more so for girls, who menstruate, than boys, who do not. Even absent social mores that look down on menstruation, many girls may find, without adequate water provision, that they cannot attend school on the days that they menstruate heavily, or be unable to learn on those days. There is nothing wrong with the girls; acknowledging that their different physicality gives rise to different needs does not imply any stigma. G irls in many schools in South Africa face a high risk of rape at school, because the security arrangements are so poor.14 The security arrangements are poor for all, but if a girl is raped and becomes pregnant this severely diminishes her access to future educational opportunities. Again, acknowledging this difference involves no stigma. We are emphatically not making the claim that the capacities for menstruation or pregnancy comprise defects that need to be corrected for. Rather, because of real differences in the capabilities of adolescent boys and girls, similar resource allocations, especially when they fall below some threshold, can have unequal (and we think unjust) effects on their future prospects for capability sets. N or are we claiming that the resourcist has no response to this point; only, that in order to make a plausible response we think that the resourcist has to appeal implicitly or explicitly to the likely effects of the resources on people’s capabilities. Think finally about the children who exhibit learning difficulties. If disabilities are truly horizontal, why should the state provide them with extra resources to overcome those difficulties? That is the way they are, and to provide them with extra support to overcome their difficulties is to stigmatize them. Pogge might reply 14

�� U nterhalter, “The Capabilities Approach and G endered Education.”


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that the reason to provide extra support is that educational achievement provides access to higher incomes, but this is a contingent, and eliminable, social fact – we could decide to make incomes more or less equal. But educational achievement would still, in such a society, provide access to more interesting work, and provide opportunities for rewarding leisure activities. Even in an appropriately egalitarian society, in our view, those with education-related disabilities should be provided with extra resources and help. The first line of defence against Pogge is complete. But a second line is also worth mentioning. Social institutions are artificial: they are created by, and susceptible to manipulation by, human agency. Take a given distribution of talents, and we can see that the form of social institution adopted differentially benefits some rather than others. Social institutions, in fact, construct disability in a certain way. Consider dyslexia. Dyslexia is a much less severe disorder for someone who lives in a society which uses a phonetic language than for someone who is forced to use a language like English. The adoption of English rather than, say, Latin or Spanish, as the lingua franca of the developed world, is accidental, attributable ultimately to human agency, and exacerbates the disadvantage of the dyslexic. Dyslexia, although the (let’s suppose biological) condition which it manifests is still present, does not even emerge as a disability in a pre-literate society. Because this choice of institutions imposes a disadvantage on the dyslexic it needs to be justified to them, just as the choice of a pre-literate society (certainly if we made it now) would need to be justified to those who were disadvantaged by that. The (much) greater share of social primary goods that even the dyslexic enjoy thanks to living in a literate society goes some way to justifying the choice to them. But this does not excuse society, even on Pogge’s view, from making extra educational provision, for example, so that the dyslexic is better able to overcome her dyslexia, and thus better able both to produce and compete for the fruits of social cooperation. But even without extra educational help the dyslexic might still be better off in terms of primary goods in a literate than in a pre-literate society. Why, then, should anything more be done for her? Because she really is at an identifiable disadvantage in terms of her ability to function. She has a disability which needs to be overcome, and the capability metric highlights this. Consider another feature of social organization which, like literacy, may benefit all while disadvantaging some relative to others. Suppose a society gains a benefit from having a single dominant language, rather than a number of different languages of equal standing. Everyone, let us suppose, benefits from this arrangement, but within the society those who speak a particular minority language are at a disadvantage to others. There is no stigma to speaking the minority language, which is, in turn, not inferior in any interesting sense to the dominant language. But those who speak it are at a disadvantage in the pursuit of certain goods in the society. Those goods are, formally, equally available to them, but practically less readily available. What justifies compensating for that disadvantage, for example by giving them extra language teaching in schools, or by providing or making mandatory widespread translation of official and unofficial


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communications? Again, we would say, the expected effects of widespread translation on the capabilities sets of the minority-language speakers. Let’s look now at Pogge’s second objection, which is as follows. First, he criticizes the H uman Development Index (H DI), which was worked out in collaboration with Amartya Sen, for having some of the same problems as standard resourcist measures – the per capita G ross Domestic Product (G DP), Life Expectancy and Adult Literacy Indices are completely insensitive to how capabilities are distributed, being mere aggregates – and he praises the per Capita G DP and School Enrolment Indices for reflecting resourcist, rather than capabilityist, thinking. The H DI is further criticized for its insensitivity to whether the inequalities in each of its indices “mitigate or aggravate each other,” whereas it seems obvious to him (and us) that when the inequalities contained within each mitigate one another across the indices a society is more just (other things being equal) than when they aggravate each other.15 (Elsewhere we make similar criticisms specifically of the School Enrolment Index.16) Pogge goes on to say that the H DI masks the true level of global inequality: O ne should also remark on the way in which per capita G DP data are translated into the score that is then integrated into the H DI as its fourth component. This translation involves two steps, as each country’s per capita G DP is first adjusted through purchasing power parity conversion and then transformed into a logarithm (presumably in order to reflect the decreasing marginal value of money). To see the effects of these mathematical transformations, consider how the scores for the U S and India are calculated. O ne begins with their raw per capita G DPs of $34,737 and $453 . O ne then adjusts both amounts by valuing the two relevant currencies at purchasing power parity (PPP) rather than market exchange rates, yielding $34,142 for the U S and $2,358 PPP for India . The final step converts these numbers into logarithms, yielding (after normalization) 0.97 for the U S and 0.53 for India. Through these two steps, an initial inequality ratio of 77 is reduced to 14.5 and finally to 1.83. Compare this new H DI metric with the old metric of national per capita incomes. H ere is a holdover from the past: “The income gap between the fifth of the world’s people living in the richest countries and the fifth in the poorest was 74 to 1 in 1997, up from 60 to 1 in 1990 and 30 to 1 in 1960. [Earlier] the income gap between the top and bottom countries increased from 3 to 1 in 1820 to 7 to 1 in 1870 to 11 to 1 in 1913.” Crude as it is, this resourcist statement provides crucial information. It says a lot about the avoidability of poverty: O ne percent of the incomes of the people in the rich countries would suffice to increase the incomes of those in the poorest countries by 74 percent. It says a lot about the distributions of bargaining power and expertise, which 15

�� Pogge, “Can the Capability Approach be Justified?,” 214–15. �� See Elaine U nterhalter and H arry Brighouse, “Distribution of what? H ow will we know if we have achieved Education for All by 2015?” (in progress). 16


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condition international negotiations and agreements. And it says a lot about how successive global institutional schemes distribute the benefits of global economic growth: Inequality increased at a 3.04 percent average annual rate during the 1990–97 post-Cold-War globalization period and it increased at a 2.47 percent average annual rate during the entire 1960–97 postcolonial period — faster than the 2.16 percent average annual increase in the last colonial period (1913–60) and much faster than the 1.41 percent average annual increase during the heyday of colonialism (1820–1913). It appears that, as inequality increases, the strong become ever more capable of tailoring the rules to their own advantage.17

Pogge’s charge is complex, because in part he’s impugning the H DI rather than the approach itself. An inequality ratio of 1.83 for the U S and India looks absurd, indeed. And a resourcist approach may always have the political advantage that the ratios it generates look starkly large. Pogge goes on to say that “[c]apability metrics tend to conceal the enormous and still rising economic inequalities which resource metrics make quite blatant. And they may also exaggerate the relative aspects of poverty, thereby lending new respectability to the old nationalist exhortation that protecting our own poor (in the rich countries where our normative reflections are produced and consumed) must take precedence.”18 Pogge’s charge is against the H DI. Maybe – in fact almost certainly – the H DI is a less-than-perfect realisation of the capability approach. But we think he is right that the capability approach will notice and give weight to the relative aspects of poverty inside a country; and we think that the primary goods approach has to, as well, if it is to look plausible, for reasons that we shall elaborate below. We agree with Pogge that the poor of the world are much worse off than the rich of the world, and that countries like India, in which absolute poverty is widespread should show up as considerably worse off than the U S. But it only looks as if the capability approach itself downplays the level of global inequality if you assume in advance that resources are the right metric. H ere’s the problem. The poor of the world are, obviously, much less well off than the rich of the world, and any measure that failed to have this consequence merits no further consideration. But as a given society’s holdings of wealth increases, the opportunities for wellbeing (however that is understood, except in terms of wealth, obviously) do not increase in a linear fashion, or even in a fashion that is well understood. Consider the longitudinal evidence within distinct economies. Between 1972 and 1991 real G DP per capita grew in the U S, at a more or less steady rate, by 39%. The percentage of respondents to polls reporting themselves as “very happy” barely increased at all during the same period; and the kinks in that curve bear no relationship to the steady rise in the growth curve.19 In Japan GN P per capita grew steadily from 1960 to 1987 by a total of 300%; the average 17

�� Pogge, “Can the Capability Approach be Justified?,” 214–15. �� Ibid. 19 �� Robert Frank, Luxury Fever (Princeton: Princeton U niversity Press, 1999), p. 72. 18


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reported level of wellbeing reported by respondents to surveys changed barely at all year to year, hovering around 6 (out of 10).20 Robert Frank summarizes the evidence as follows: O ne of the central findings in the large scientific literature on subjective wellbeing is that once income levels surpass a minimal absolute threshold, average satisfaction levels within a given country tend to be highly stable over time, even in the face of significant economic growth.21

We do not assume that subjective wellbeing, let alone a personal report of subjective wellbeing, constitutes flourishing as we should measure it for purposes of justice; preferences adapt to injustice and misfortunes, and people are not always the best sources of information about their own levels of satisfaction. But the evidence Frank presents is highly suggestive in the light of the fact that there is a relationship between subjective wellbeing and wealth up to a certain level of economic success. The findings also mesh with Fred H irsch’s argument in Social Limits to Growth that, past a certain point of material development, as the material economy grows the positional economy becomes an increasingly dominant part of the material economy.22 The positional economy relates to certain kinds of goods that cannot be more widely distributed, because their value lies in the social construction of their high status, and part of that status rests on the fact that access to these goods is limited. Places at elite higher education institutions are examples of positional goods, as are work in high status occupations and access to very select forms of leisure. G rowth in the positional economy shows up as a growth in wealth, but it does not bring any contribution to overall wellbeing, and so should not be counted when we are comparing how well off people are from one society to another. The problem that positionality poses for the resourcist is very similar to the problem Rawls and Pogge both address of leisure (indeed, it is arguable that the problem of leisure is just one aspect to the problem of positionality). The problem with leisure is that intuitively the person who works 12 hours a day at a wage of $20/hr is not better off than the person who works 8 hours a day at the same wage, if the person who works less has their basic needs well met, has the opportunity to work more, and forgoes that opportunity because she has a high preference for leisure. But the straightforward income/wealth measure will show the former person as better off. The same is true of countries: France shows up as about 20% worse off than the U S if we look just at G DP; but this doesn’t take into account that the French work about 20% fewer hours per person per year (let alone the fact that they get to live in France); a measure which shows the U S as being better off is simply wrong. To solve this problem Rawls introduces an element to his 20

�� Ibid., p. 73. �� Ibid, p. 72. 22 �� F red Hirsch, Social Limits to Growth (London: Routledge Kegan Paul, 1976). 21


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account of primary goods which both he and Pogge admit is somewhat arbitrary – he stipulates that the index of primary goods includes a certain amount of leisure time, say sixteen hours per day if the standard working day is eight hours. Those who do not work have eight extra hours of leisure and we count those extra eight hours as equivalent to the index of the least advantaged who do work a standard day.23

The stipulation is somewhat arbitrary because there is no principled reason (in Rawls theory) for preferring a standard workday of eight hours to one of six hours, or ten hours, and also because it specifies the workday in terms of hours of work rather than in terms of how hard one works, which has a profound effect on how much use one can make of one’s leisure (for more on this see Brighouse and Swift, in progress); that there should be some sort of stipulation, however, is not arbitrary, because it is obvious that a person with more leisure is, other things being equal, better off than the person with less (the equal other things including that for neither person is the leisure or the work forced). But why does that seem obvious? Because voluntary leisure seems, for most people, to make a vital contribution to their ability to flourish as persons, to carry out their conception of the good, whatever that may be. For most of us it is a valuable, and for some it is an essential, element in our ability to have a range of human functionings. Positionality, like leisure, poses for resourcist metrics the problem that it makes it unclear how to compare the real resource base of people in separate societies which differ with respect to the extent to which positional goods dominate their economies. This problem is compounded by the possibility that how positional goods are distributed may affect differently the opportunities for wellbeing of individuals with otherwise similar resource holdings. Consider the following example: Sid lives in a rich country where healthcare is exclusively privately provided and nursing care for the elderly is neither provided nor funded. H e understands that there is a small chance that he will need to spend much money on healthcare in old age, and a very small chance that he will have to spend a great deal of money on healthcare in old age. H e is therefore driven to accumulate what, given the probabilities, is an excessive amount of capital, simply to assure himself a financially secure old age. Consequently, he works more than he would otherwise choose, and he, and others similarly concerned to assure a merely acceptable level of wellbeing in old age, have to pursue economic opportunities to the detriment of a sense of community within neighbourhoods (because they move more often to pursue those opportunities), civic engagement (because they spend more time at work), and family life (for the same reason). And at the end of the process, most of the people with Sid’s preferences have accumulated more capital than they need: they have had to overshoot, as it were. What if Sid had lived in a society which 23 �� John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: H arvard U niversity Press, 2001), p. 179.


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collectively assured a more-or-less decent level of healthcare and nursing care for the elderly. With exactly the same set of preferences he and his group would have behaved quite differently, to their own benefit, and that of others (who would have been able to enjoy the benefits of living in more stable communities, spending more time with their working parents, living nearer their families in adulthood, moving schools less frequently, and being in schools and neighbourhoods with more stable populations). The inhabitants of the second kind of society enjoy many benefits unavailable to the inhabitants of the first kind of society, and those benefits cannot be readily accounted for by the resourcist metric. Considering the problems of positionality and leisure illuminates the nonlinearity of the relationship between economic growth and increases in wellbeing over time, and also the non-linearity of the relationship between income and wellbeing at a given time. With one exception the items on Rawls’s index of primary goods seem too inflexible to account for these kinds of complications. The exception is, of course, what Rawls calls the ‘social bases of self respect’. We shall have a little more to say about this later, but for now it is worth noting that even this primary good seems ill-suited to accommodate the socially-caused differences in access to wellbeing that the phenomena we have presented suggest. We emphasize again that we do not think that the above considerations force the abandonment of the resourcist approach by any means. But, in order to deal with these kinds of phenomena, the resourcist has to appeal at a more fundamental level to some sort of capabilities. Rawls himself says this: the idea of primary goods is closely connected with the conception of citizens as having certain basic capabilities, among the most important being the two moral powers. What those goods are depends on the fundamental intuitive idea of citizens as persons with those powers and with a higher order interest in their development and exercise.24

The problem is that the resourcist has to begin to mimic the capabilities approach in order to craft responses to the issues raised by positionality and leisure, just as – as Pogge points out – the capabilities approach has to mimic, or at least draw on, the primary goods approach in order to develop workable public criteria for making interpersonal, and even intersocietal, comparisons. We do not see primary goods as having decisive advantages over capabilities, any more than vice versa. The worries posed by consideration of positional goods may seem to be of limited practical importance in the context of Pogge’s work on N orth-South inequality. After all, whatever the consequences of considering the complexities introduced by positional goods, the poor in the developing world are much poorer and much worse off than, most people in the developed world. But such complexities are important for two reasons. The general reason is pointed to by H irsch’s comment in his seminal work on positionality: 24

�� Ibid., p. 175.


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The growth alternative offers the possibility of consensus action, of a game with winners but no absolute losers, of levelling up without levelling down: limiting the choice to distributing the increment, rather than demanding the more fundamental political act of redistributing existing resources. In one key sector – the positional sector – there is no such thing as levelling up. O ne’s reward is set by one’s position on the slope, and the slope itself prevents a levelling, from below as well as from above.25 And so, social limits to growth intensify the distributional struggle. They increase the importance of relative place. They intensify pressure for equalization of economic resources on the part of the worse off and stiffen resistance to equalization by the better off.26

As countries pursue development, and external agencies assist (or hinder) them in this pursuit, they need to consider what policies to adopt with respect to positional goods; some policies will enhance the wellbeing of some people, others will enhance the wellbeing of others, and some will enhance the wellbeing of no-one. These differences will not be revealed if we attend merely to resourcist measures of growth, even if we take into account distributional concerns or the refinements relating to G DP per capita introduced by the H DI. The particular reason is this: different countries, even at similar levels of development, will distribute education (which is in part a positional good) differently, and even for different countries with the same distribution of education it will be more or less positional (and positional in different ways) depending on both the distribution of labour market rewards and the extent to which education influences labour market rewards. So, concerns about positionality infect even comparisons among developing countries, especially in educational contexts.27 What about the final objection to the primary goods approach? It is widely supposed that resourcist approaches have the advantage over other approaches in that the latter are well suited for providing a public criterion of justice.28 A public criterion is one that can be displayed and scrutinized by all as equals in public discussion and debate. It is one that cannot only be used, but can be seen to be being used, if you like. Welfarist measures (that depend on subjective preferences, or subjective states of individuals) are ill-suited to this task because their use depends on information that cannot be readily made public or publicly monitored. The capabilities approach, which is widely thought to be closer to the welfarist �� Hirsch, Social Limits to Growth, pp. 174–5. �� Ibid., p. 181. 27 For an extensive discussion of the significance of positionality for justice, see H arry Brighouse and Adam Swift, “Equality, Priority, and Positionality,” Ethics 116/3 (2006): pp. 471–97. 28 �� See, for example, Pogge, “Can the Capability Approach be Justified?;” Andrew Williams, “Incentives, Inequality, and Publicity,” Philosophy and Public Affairs 27/3 (1998): pp. 225–47; and Rawls, Justice as Fairness. 25 26

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than the resourcist approach does indeed have a serious problem with respect to publicity. Its difficulty consists in the fact that it is very hard publicly to monitor the information needed to evaluate whether people enjoy similar capability sets, and this difficulty is compounded by the difficulty of providing an index of capabilities. Does this constitute a powerful advantage for the resourcist approach? There are two reasons to doubt that it does. First, it is not clear that publicity is a value which has lexical priority to justice (or, if publicity is part of justice, that it is lexical to other parts of justice). It is better, other things being equal, for a society’s institutions to be completely transparent, and for justice to be seen to be done. But, if justice can be done only in ways that are not transparently monitorable, it is better to achieve justice than to refrain because the methods one must employ are not susceptible to full public scrutiny. But the second reason is more telling; if our conjecture is right, and the social primary goods metric, in order to overcome its difficulties, has to appeal implicitly or explicitly to conjectures about how various goods are likely to impact on capabilities, then the difficulties of the capabilities approach will begin to infect the primary goods approach. If, for example, resourcists invoke Rawls’s fifth primary good, the “social bases of self-respect,” they have to spell out in much more detail what these are and how they should be arranged; but in doing so, our conjecture is that they will have to describe demands on institutions which have as much difficulty in meeting the publicity constraint as do the demands supported by the capability approach. Publicity is an advantage, and it is one that the primary goods approach usually enjoys. But it enjoys it less, the more plausible it gets. Concluding Comment Pogge’s argument for the superiority of the primary goods approach over the capability approach fails because some of his arguments simply don’t impugn the capability approach, and others depend on an overoptimistic assessment of the power of the primary goods approach. But refuting Pogge’s arguments does not suffice to establish the superiority of the capability approach. Like N orman Daniels,29 we suspect that the two approaches are complementary: each has advantages over the other when considering particular contexts. Working out more precisely the relationship between the approaches is an important project.

29 �� N orman Daniels, “Democratic Equality: Rawls’s Complex Egalitarianism,” in Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge: Cambridge U niversity Press, 2003), pp. 241–77.


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Bibliography Brighouse, H arry, School Choice and Social Justice (O xford: O xford U niversity Press, 2000). Brighouse, H arry and Adam Swift, “Equality, Priority, and Positionality,” Ethics 116/3 (2006): 471–97. Brighouse, H arry and Elaine U nterhalter, “Primary G oods, Capabilities, and the Millennium Development Target for G ender Equity in Education,” in Flavio Comin et al. (eds), Capabilities, Gender, Equality: Toward Fundamental Entitlements (Cambridge: Cambridge U niversity Press, forthcoming). Daniels, N orman, “Democratic Equality: Rawls’s Complex Egalitarianism,” in Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge: Cambridge U niversity Press, 2003), pp. 241–77. Frank, Robert, Luxury Fever (Princeton: Princeton U niversity Press, 1999). Hirsch, F red, Social Limits to Growth (London: Routledge Kegan Paul, 1976). N ussbaum, Martha, Women and Human Development: The Capabilities Approach (N ew York: Cambridge U niversity Press, 2000). ———, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, MA: H arvard U niversity Press, 2006). Pogge, Thomas, “Can the Capability Approach be Justified?,” Philosophical Topics 30/2 (2002): 167–228. Rawls, John, Political Liberalism (N ew York: Columbia U niversity Press, 1993). ———, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: H arvard U niversity Press, 2001). Sen, Amartya, Development as Freedom (O xford: O xford U niversity Press, 1999). U nterhalter, Elaine, “The Capabilities Approach and G endered Education: An Examination of South African Complexities,” Theory and Research in Education 1/1 (2003): 7–22. U nterhalter, Elaine and H arry Brighouse, “Distribution of what? H ow will we know if we have achieved Education for All by 2015?” (in progress). Williams, Andrew, “Incentives, Inequality, and Publicity,” Philosophy and Public Affairs 27/3 (1998): 225–47.


Chapter 3

Rawls’s Commitment to Fair Equality of O pportunity: Rethinking H is Arguments for Democratic Equality Four Decades Later Lesley A. �� J�� acobs

Although the concept of equality of opportunity has for a long time enjoyed wide currency in political theory, it is noteworthy that, unlike other key concepts such as natural rights, very little attention has been paid to the lineage or evolution of the concept of equality of opportunity. Indeed, a careful history of the concept has not been written. This is unfortunate, I think, because without such a history it has been difficult to assess the significance of John Rawls’s contribution to the scholarship. As is well known, in his 1971 book A Theory of Justice, Rawls advances a contractualist theory of justice as fairness, in which equality of opportunity plays an important role. In this chapter, I advance a two-fold argument. First, I situate Rawls’s own preferred conception of equality of opportunity – fair equality of opportunity – within a broader context so that the strengths and limits of that conception are transparent in comparison to other conceptions of equality of opportunity. Second, I draw out how Rawls’s argument for the difference principle is significantly weakened when a more robust conception of equality of opportunity is embraced. Democratic Equality For Rawls, justice means “a proper balance between competing claims.” T his balance is defined by principles that function to assign rights and duties and, in so doing, define the appropriate division of social advantages. Rawls’s own theory of justice as fairness is a special case of a more general conception of justice that he formulates in the following way: All social values – liberty and opportunity, income and wealth, and the social bases of self-respect – are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s advantage.” �� John Rawls, A Theory of Justice, rev. edn (Cambridge, MA: H arvard U niversity Press, 1999), p. 9. �� Ibid., p. 54.


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The main idea, as Rawls points out, is that, “injustice is simply inequalities that are not to the benefit of all.

Justice as fairness advances the following two principles: 1. Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all, and 2. Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity, and second, they are to be to the greatest benefit of the least-advantaged members of society (the difference principle).

Although Rawls characterizes “justice as fairness” as a special case of the general conception of justice, he emphasizes that certain aspects of the general conception are questionable, especially that it allows for more inequalities than justice permits (in his view), and the two principles correct for this mistake. As Rawls explains it, The general conception of justice imposes no restrictions on what sort of inequalities are permissible; it only requires that everyone’s position be improved. We need not suppose anything so drastic as consenting to a condition of slavery. Imagine instead that people seem willing to forego certain political rights when the economic returns are significant. It is this kind of exchange which the two principles rule out; being arranged in serial order they do not permit exchanges between basic liberties and economic and social gains except under extenuating circumstances.

For the purposes of this chapter, however, my concern is not with the serial order of the first and second principles but rather with the relationship between the two principles – fair equality of opportunity and the difference principle – that constitute the second principle of justice as fairness. Although Rawls presents the combination of fair equality of opportunity and the difference principle as a single principle of justice (which he calls democratic equality), he consistently presents the difference principle as a standard of fairness independent of equality of opportunity. For Rawls, the two principles of justice as fairness and their constitutive parts are designed to work in tandem but reflect the

�� Ibid. �� John Rawls, Justice as Fairness: A Restatement (Cambridge MA: H arvard U niversity Press, 2001), pp. 42–3. Rawls has revised these two principles in various ways. I use the most recent formulation here. �� Rawls, A Theory of Justice, rev. edn, p. 55. �� Throughout the discussion here, the difference principle refers only to the second part of the second principle of justice as fairness. This is consistent with how Rawls now

Rawls’s Commitment to Fair Equality of Opportunity

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distinct values of freedom and equality. Within the second principle, he imagines the requirements of fair equality of opportunity and the difference principle pulling in different directions. Infringements of fair equality of opportunity for Rawls arise when there is an inequality of opportunity. The question for him is when are infringements of fair equality of opportunity justified? The difference principle allows for only one sort of justified infringement: “an inequality of opportunity must enhance the opportunities of those with the lesser opportunity.” N otice, therefore, that the basic role of the difference principle is to justify unequal opportunities. The Three-Dimensional View of Equality of Opportunity Equality of opportunity is, as I have suggested elsewhere, an ideal for the normative regulation of competitions that distribute valuable opportunities in society. It is possible to distinguish three dimensions of fairness that might guide this regulation. Procedural fairness reflects a concern with the basic rules of procedure that guide a competition, including the determination of the winners. Background fairness reflects a concern that there is a level playing field for all competitors. Stakes fairness focuses on the prizes or what is at stake in the competition. The traditional view of equality of opportunity is one-dimensional, concentrating only on procedural fairness. The two-dimensional view stresses not only procedural fairness but also background fairness. For egalitarians, it constitutes a major advance over the traditional view because it is sensitive to the extent to which the distribution of opportunities is influenced by background socio-economic considerations. The two-dimensional view now dominates perceptions of equality of opportunity. My three-dimensional model of equal opportunities as a regulative ideal is innovative because it adds the dimension of stakes fairness. These three dimensions of equality of opportunity can be illustrated by considering the example of a boxing match. Boxing matches characteristically are regulated by certain familiar rules – the so-called Queensberry Rules. Some of these rules reflect procedural fairness such as, for instance, not punching one’s insists the term be used, e.g. Justice as Fairness, p. 43, n.3, and A Theory of Justice, rev. edn, p. 72. �� The reason for this may well be a reflection of the sort of tension Derek Parfit highlights between principles of equality and principles that reflect giving priority to the less well off. See “Equality and Priority” in Andrew Mason (ed.), Ideals of Equality (WileyBlackwell, 1998). �� Rawls, A Theory of Justice, p. 303. Rawls also writes, “Infringements of fair equality of opportunity are not justified by a greater sum of advantages enjoyed by others or by society as a whole” (p. 302). This passage has been deleted from A Theory of Justice, rev. edn (p. 265). �� Lesley A. Jacobs, Pursuing Equal Opportunities: The Theory and Practice of Egalitarian Justice (N ew York: Cambridge U niversity Press, 2004).


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opponent below the waist, no head butting, no swinging after the bell is rung to end the round, and so on. Likewise, fair matches do not begin with an agreed-upon winner; instead, the winner is determined by the rules, such as who wins by a knock-out or scores the most points in the case of a decision fight. Considerations of procedural fairness in this sense are presumably quite familiar. But boxing matches typically respect another dimension of fairness, as well. In competitions such as the O lympics, boxers are classified based on their bodyweight and fight other boxers in the same weight class. U nderlying this practice is the intuition that there is something fundamentally unfair about a match between a 125pound featherweight boxer and a 200-pound heavyweight. Assuming that the heavyweight boxer wins a match between the two, that outcome is said to be unfair even if the boxer did not violate the rules of procedural fairness such as hitting the featherweight boxer after the bell ended the round. Background fairness reflects the concern that boxers enter a match on roughly equal terms with respect to bodyweight. Background fairness is met, in other words, when there is a level playing field for all competitors. The third dimension of fairness concerns the prizes or what is at stake in the boxing match. For instance, in professional boxing, the stake is prize money. The practice is to have the winner receive, say, 75% of the money (say $750,000) and the loser 25% (250,000). Typically, the justification is that this is fairer than a winner-take-all prize of $1,000,000. The dimension of fairness drawn upon here is what I mean by stakes fairness. This three-dimensional model of equal opportunities is an innovative advance on how the concept of equality of opportunity has been viewed in treatments of egalitarian justice. The traditional view of equality of opportunity is onedimensional. This view focuses on procedural fairness. Beginning in the 1960s, a number of influential liberal political philosophers introduced a two-dimensional view of equality of opportunity. This two-dimensional view stressed not only procedural fairness but also background fairness. O f course, these ideas of procedural fairness and background fairness reflected in particular the profound influence of John Rawls’s description of fair equality of opportunity in A Theory of Justice.10 The two-dimensional view of equality of opportunity – fair equality of opportunity – constitutes a major advance over the one-dimensional view because it is sensitive to the extent to which the distribution of opportunities is partly a function of background socio-economic differences between individuals. The two-dimensional view can have significant redistributive implications because in order to ensure background fairness, it is often necessary to redistribute some of society’s scarce resources. The two-dimensional view continues to dominate

�� Rawls, A Theory of Justice, pp. 73–6. The other major influence in the 1960s was Brian Barry’s discussion of procedural justice in Political Argument, reissue (Brighton, U K: H arvester/Wheatsheaf, 1990), esp. pp. 102–6. See also James S. Fishkin, Justice, Equal Opportunity, and the Family (N ew H aven: Yale U niversity Press, 1983), Ch. 3. 10


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perceptions of equality of opportunity. The added dimension of stakes fairness, however, makes for a more comprehensive account of equality of opportunity.11 What standards underlie these three dimensions of fairness? Let me give here just a thumbnail sketch of these standards that underlie these three distinct dimensions of fairness. The standards of procedural fairness are generally specific to the particular competition. What counts as procedurally fair is often linked to what is at stake in the competition. In many competitions, the basic requirements of procedural fairness are not deeply contested. Those requirements often reflect a general consensus and have developed over time. Sometimes, of course, the rules or regulations governing a competition are found to be unfair and to violate procedural fairness. The clearest breaches of procedural fairness involve the exclusion of certain classes of persons from the competition. There are well-known historical examples of this in professions such as law, medicine, and teaching. Since the appearance of Rawls’s A Theory of Justice in 1971, background fairness is now probably the most familiar site for theorists of equal opportunity to express concerns about fair competition. This dimension of fairness fixates on the initial starting positions or backgrounds of those potentially involved in a competition. The underlying insight is, of course, that the structure of these positions will affect who competes and how they will fare in the competition. From the perspective of competitive equality of opportunity, because pre-existing inequalities infect the fairness of competitive processes, there is a need to regulate these processes with a sensitivity to remedies for these inequalities. Stakes fairness reflects a concern with the distribution of benefits and burdens within a competition. The issue here is with whether it is fair to have, for instance, a winner-take-all scheme. Imagine, say, divorce settlements that were structured in this way. Most of us would object that this is unfair because it is wrong to have the stakes so high; while it may be acceptable to have the winner receive more benefits, it is unfair that the loser receive nothing. Similarly, consider the labour market in this light. O ften, employment in the competitive labor market is perceived in this way; those who get jobs receive wages and all other sorts of fringe benefits. O ne way to view a range of government programs from unemployment insurance to workfare is as mechanisms to promote stakes fairness rather than attaching all the benefits to the winners in the competitive labor market. My general point is that the ideal of equal opportunities as a regulative ideal is designed not as a justification for the privileges and inequalities that are often a characteristic result of unregulated competitions but as a normative standard of procedural and stakes fairness for critiquing those structural privileges and inequalities. There are two aspects of stakes fairness that inform equality of opportunity as a regulative ideal, on the one hand, the concern with what and how much is actually at stake in an individual competition and, on the other hand, the concern with 11 �� This distinction between one-, two-, and three-dimensional view of equality of opportunity mimics the three-fold distinction between views of power offered by Steven Lukes in Power: A Radical View (London: MacMillan, 1974).


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limiting the impact of the result of one competition on another. At the core of the very idea of stakes fairness is this concern about what and how much is actually at stake in an individual competition. H ence, the analogy from prize fighting where it is the norm for professional boxers to share the prize, the difference between the winner and loser being their proportion of the prize. This example expresses the insight that winner-take-all stakes for competitive opportunities are rarely fair.12 Appeals to stakes fairness suggest that it is principally a regulatory device to prescribe a wider distribution of the prizes at stake in a competition rather than a simple winner-take-all scheme. With regard to the other aspect of stakes fairness, the fundamental idea is that winning or losing one competitive opportunity in civil society should not affect one’s prospects in a competition for another opportunity. For example, financial success shouldn’t translate into better educational prospects; ability to pay or any other similar measurement should not affect the educational opportunities an individual enjoys. In many respects, this aspect of stakes fairness blurs the distinction between this dimension of fairness and background fairness; in effect, the concern can also be represented as one about the initial standing of individuals in a competition. But I use the language of stakes fairness because it seems to me that the most effective way to address the underlying concern here is by regulating the stakes in any given competition. This is, I believe, the basic insight Rousseau offers when out of concern about the corrupting influence of wealth, he prescribes that, “no citizen shall be rich enough to be able to buy another, and none poor enough to be forced to sell himself.”13

12

�� Another analogy based on a controversial public issue may help to sharpen this idea of stakes fairness. Consider the case against capital punishment. Some opponents of capital punishment hold that it is simply wrong for the state to have the authority to kill someone. O thers say something to the effect that two wrongs don’t make a right. Yet, among the general public, the most frequently cited reason for reservations about capital punishment concern wrongful convictions. N either of the two views mentioned above are able to capture fully reservations based on the concern about wrongful conviction; they both hold that capital punishment in any circumstances is wrong. Think about capital punishment from the perspective of stakes fairness. Capital punishment in a modern legal system is a sentence that flows from a competitive trial system between the accused and the state. The relevant question is whether capital punishment makes the stakes too high in this competition. And it is easy to imagine why many people might concur; what wrongful conviction does is highlight how high (and unfair) the stakes are when capital punishment exists. Capital punishment is, to put it bluntly, the ultimate winner-take-all stake. 13 �� Jean-Jacques Rousseau, The Social Contract, Book II, Ch. 11, in The Essential Rousseau, trans. Lowell Bair (N ew York: Mentor Books, 1974), p. 45. In my view, Michael Walzer’s idea of complex equality is, motivated by a concern about this aspect of stakes fairness. See Michael Walzer, Spheres of Justice (N ew York: Basic Books, 1983), p. 19.


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Rawls’s Case for Democratic Equality N ow, constraining an outcome or benefit with an eye to broadening the scope of the distribution – the core idea of stakes fairness as I have just represented it – has been an important theme in modern economics and political philosophy, even though it has not been well developed within a theory of equality of opportunity. Some of the most familiar principles of welfare economics such as Paretian optimality and the Kaldour-H icks rule are certainly a reflection of this theme. O f course, the single most important philosophical expression of this theme has been by Rawls, in effect his difference principle. For Rawls, this function of the difference principle is fundamental to his case for democratic equality. Rawls contrasts democratic equality to three other alternative combinations of equality of opportunity with other principles which give priority to inequalities being to everyone’s advantage. In A Theory of Justice, however, Rawls imagines only two different models of equality of opportunity: a one-dimensional model (formal equality of opportunity) and a two-dimensional model (fair equality of opportunity). Suppose, however, that we consider how strong Rawls’s case would be if a three-dimensional model of equality of opportunity involving stakes fairness was added as a possible interpretation of the second principle of justice. The relevant point is that Rawls wrote A Theory of Justice while the concept of equality of opportunity was still evolving; he allowed for only two models, formal and fair equality of opportunity. What are the implications for his case for democratic equality if a more comprehensive model of equality of opportunity is entertained? This can be represented in the following table, which is adapted from Rawls.14 Table 3.1: Comparing Interpretations of the Second Principle “Everyone’s Advantage” “Equally O pen”

Principle of Efficiency

Difference Principle

O ne-dimensional Equality of O pportunity (formal), which includes procedural fairness

System of N atural Equality

N atural Aristocracy

Two-dimensional Equality of O pportunity (fair), which includes procedural and background fairness

Liberal Equality

Democratic Equality

Three-dimensional Equality of O pportunity (includes stakes fairness)

Liberal Equality plus Stakes Fairness

�� Rawls, A Theory of Justice, rev. edn, p. 57.

14


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The principle of efficiency holds for Rawls that, “an arrangement of the basic structure is efficient when there is no way to change this distribution so as to raise the prospects of some without lowering the prospects of others.”15 The problem with this principle is that it allows for a range of efficient but extreme positions and hence cannot serve alone as a principle of justice. It must be supplemented by a principle of equality of opportunity, which functions to narrow the efficient positions to those that are just. What, then, is wrong with the principle of efficiency combined with a two-dimensional model of equality of opportunity? In effect, Rawls objects to liberal equality on the grounds that fair equality of opportunity can only be imperfectly carried out and that liberal equality permits “the distribution of wealth and income to be determined by the natural distribution of abilities and talents … and this outcome is arbitrary from a moral perspective.” 16 Rawls defends the superiority of democratic equality over liberal equality in the following way: This principle removes the indeterminateness of the principle of efficiency by singling out a particular position from which the social and economic inequalities of the basic structure are to be judged. Assuming the framework of institutions required by equal liberty and fair equality of opportunity, the higher expectations of those better situated are just if and only if they work as part of a scheme which improves the expectations of the least advantaged members of society.17

It is in this way that democratic equality differs from liberal equality in not leaving, “too much to social and natural contingency.”18 N ow, consider the combination of the principle of efficiency with a threedimensional model of equality of opportunity, which I have labeled in Table I the principle of liberal equality plus stakes fairness. This is significant, I believe, because stakes fairness narrows the range of just, efficient positions without invoking the difference principle.19 In effect, by promoting a wide distribution of benefits and limiting the effects of inequalities in one domain on another, it corrects for Rawls’s objection that liberal equality permits distributive shares to be determined by social and natural contingencies. Instead, like the difference principle, a three-dimensional model of equality of opportunity would constrain some contingencies. The force of the point I am making is, I believe, reinforced if we draw the comparison between the difference principle and equality of opportunity, on the 15

�� Ibid., p. 61. �� Ibid., p. 64. 17 �� Ibid., p. 65. 18 �� Ibid., p. 69. 19 �� It is important to recognize that Rawls did not believe that the principle of efficiency and the difference principle were incompatible. See Rawls, A Theory of Justice, rev. edn, p. 69. 16


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one hand, and the principle of average utility and equality of opportunity, on the other hand. Rawls did not in A Theory of Justice make this comparison, although he subsequently indicated that he wished he had.20 The principle of average utility holds that, in effect, inequalities are justified when they maximize the average utility of individuals in a society. Whilst Rawls spent a considerable amount of time critiquing the principle of utility as a self-standing principle of justice, he did not address this idea of a mixed conception, that is to say, a mixed conception that combines equality of opportunity with the principle of average utility. Consider the relevant addition to Table 3.1, as represented in Table 3.2. Table 3.2: Comparing Interpretations of the Second Principle Adding U tility “Everyone’s Advantage” “Equally O pen”

Principle of Efficiency

Difference Principle

Principle of U tility

O ne-dimensional Equality of O pportunity (formal), which includes procedural fairness

System of N atural Equality

N atural Aristocracy

Mixed Conception with Procedural F airness

Two-dimensional Equality of O pportunity (fair), which includes procedural and background fairness

Liberal Equality

Democratic Equality

Mixed Conception with Procedural and Background Fairness

Three-dimensional Equality of O pportunity (includes stakes fairness)

Liberal Equality plus Stakes F airness

Mixed Conception with Procedural, Background and Stakes Fairness

N ow, it is not difficult to anticipate the main force of Rawls’s reservations about the mixed conception when it involves only formal or fair equality of opportunity. It would seem still consistent with, say, fair equality of opportunity to promote a higher level of average utility where some people receive very small distributive shares because it does not have an eye to the fairness of the outcome. O f course, the strength of a mixed conception that builds on a three-dimensional model of equality of opportunity is precisely that stakes fairness functions to constrain the feasible extreme distributions that potentially can maximize average utility.

John Rawls, “Preface for the Revised Edition,” A Theory of Justice, rev. edn, p. xiv.

20

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Conclusion The point of this analysis has been to illustrate how the concept of equality of opportunity has evolved since Rawls wrote A Theory of Justice and how recognizing this has implications for the arguments Rawls advanced for democratic equality. In particular, I have sought to show how the added dimension of stakes fairness as a component of equality of opportunity strengthens considerably the principle of efficiency and especially the principle of average utility as alternative interpretations of the second principle of justice. The core idea of stakes fairness is that fairness prescribes a wider distribution of the prizes at stake in a competition than a simple winner-take-all scheme. This contrasts with the core idea of the difference principle, which is that outcomes should be constrained so that they are to the greatest benefit of the least-advantaged members of society. Interestingly, stakes fairness fits much more readily with one of the key institutional commitments Rawls makes, namely, the idea of a property-owning democracy. For Rawls, property-owning democracy differs from the welfare state in capitalist democracy. The latter relies heavily on post-market redistributive transfers. Property-owning democracy, on the other hand, seeks instead to ensure, “the wide-spread ownership of productive assets and human capital (educated abilities and training skills).”21 My point is that this concern with the wide distribution of private property better reflects stakes fairness than the difference principle. Bibliography Barry, Brian, Political Argument, reissue (Brighton, U K: H arvester/Wheatsheaf, 1990). Fishkin, James, Justice, Equal Opportunity, and the Family (N ew H aven: Yale U niversity Press, 1983). Jacobs, Lesley, Pursuing Equal Opportunities: The Theory and Practice of Egalitarian Justice (N ew York: Cambridge U niversity Press, 2004). Krouse, Richard, and Michael Macpherson, “Capitalism, ‘Property-O wning Democracy,’ and the Welfare State,” in Amy G utmann (ed.), Democracy and the Welfare State (Princeton: Princeton U niversity Press, 1988), pp. 79–106. Lukes, Steven, Power: A Radical View (London: MacMillan, 1974). Parfit, Derek, “Equality and Priority,” in Andrew Mason (ed.), Ideals of Equality (Wiley-Blackwell, 1998). Rawls, John, A Theory of Justice, rev. edn (Cambridge, MA: H arvard U niversity Press, 1999). 21 Rawls, “Preface,” p. xv. See also Richard Krouse and Michael Macpherson, “Capitalism, ‘Property-O wning Democracy,’ and the Welfare State,” in Amy G utmann (ed.), Democracy and the Welfare State (Princeton: Princeton U niversity Press, 1988), pp. 79–106.


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———, Justice as Fairness: A Restatement (Cambridge MA: H arvard U niversity Press, 2001). Rousseau, Jean-Jacques, The Social Contract, in The Essential Rousseau, trans. Lowell Bair (N ew York: Mentor Books, 1974). Walzer, Michael, Spheres of Justice (N ew York: Basic Books, 1983).


Chapter 4

John Rawls’s G enealogy of Liberalism Ronald Beiner

Political Liberalism has generated an astonishing set of debates within contemporary liberalism. This is perfectly understandable, for the post-Rawlsian debates raise issues of profound significance for contemporary society (i.e., the current situation of radical ethnic, cultural, and religious pluralism); and I don’t doubt that the questions raised by Rawls about liberal citizenship and how it ought to accommodate illiberal forms of religion are entirely worthy of the attention they have received from political philosophers. But I think there’s one striking text in PL that has perhaps received less attention in the Rawls literature than it merits. I’m referring to Rawls’s effort to define liberalism, notably in the Introduction to PL, in relation to the 16th–17th-century Wars of Religion. O f course, it is hardly a novel idea to trace liberalism back to this historical context; on the contrary, it is virtually a cliché to say that liberalism arose out of the Wars of Religion (which of course doesn’t mean that it isn’t true to say this). So it is interesting that Rawls chooses to introduce his crowning articulation of his own version of liberalism with a story of this kind. More to the point, it is especially interesting exactly how Rawls crafts this story – so to speak, how he chooses to flesh out (however compactly or telegraphically) this old cliché/truism. It may even pay dividends for our understanding of the other debates that PL has aroused. Are the Wars of Religion still relevant to contemporary liberals? What I propose to do in this discussion of Rawls is to look at his highly compressed account of the genesis of liberalism in the Introduction of PL, and to explore how this genealogical narrative possibly shapes the larger theoretical agenda in late Rawls – which turns �� John Rawls, Political Liberalism (N ew York: Columbia U niversity Press, 1996) – hereafter PL. PL, pp. xxiii–xxx. There are also brief discussions in PL, pp. 148–9, 159, and 303–4, as well as the important statement on p. 154: “Were justice as fairness to make an overlapping consensus possible it would complete and extend the movement of thought that began three centuries ago with the gradual acceptance of the principle of toleration and led to the nonconfessional state and equal liberty of conscience” (my italics). See also the posthumously-published Lectures on the History of Political Philosophy, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 2007), p. 11, where Rawls lists the response to the Reformation and the Wars of Religion it set off as constituting the first of “three main historical origins” of modern liberalism, the other two being constitutional government and universal suffrage.

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out to be highly problematical (for reasons I’ll try to explain). Rawls’s genealogy of liberalism in the Introduction to PL is amazingly concentrated, but I think it is of decisive importance for grasping both the nature of the philosophical structure laid out in PL and, so to speak, its animating principle. Before turning to Rawls’s genealogy, let us briefly sketch Rawls’s view that founding the liberal state on “comprehensive doctrines” (including liberal comprehensive doctrines) is not just dispensable but illegitimate – which is unquestionably the core idea of PL. In an important sense, Rawls, in PL, sets himself apart from the history of liberalism, whereas in A Theory of Justice he had aligned himself with the history of liberalism (or at least aligned himself with one version of liberalism engendered in that history). To be a liberal, Rawls now insists, it is not necessary to formulate some grand conception of what it is to be human – or what purposes are distinctively human purposes – according to which being a liberal serves the human vocation. Both Kant and J.S. Mill in their different ways embraced this view. This defines their shared commitment to “liberalism as a comprehensive doctrine” – hence Rawls’s famous distinction between “comprehensive” versions of liberalism and (merely) “political” versions of liberalism. O n Rawls’s (PL-formulated) view, not only is it not necessary to have a grand view of this kind; one can in fact be a better liberal by not asserting such a view – because one can display respect for a wider array of fellow-citizens. Yet there’s a deep puzzle about why Rawls is so averse to justifying liberalism by appeal to comprehensive doctrines. H is official line is that if the state privileges, for instance, liberal autonomy as a comprehensive view of life, the state thereby treats unfairly those who don’t share this particular view of life. Let’s call this “grand liberalism.” What Rawls, in effect, presents as the implicit injustice of requiring grand liberalism for all members of the liberal state prompts him to opt instead for what we can call, by contrast, “modest liberalism.” Modest liberalism limits itself to minimum conditions of shared citizenship: a liberalism of (mere) citizenship rather than a liberalism of existential worldviews. But here is where the puzzle emerges. Rawls’s later philosophy of liberalism perhaps doesn’t assert individual autonomy as a civically-privileged view of life. It does, however, privilege the view that citizenship is important – sufficiently important that religious commitments should not trump a commitment to ecumenical citizenship. In what sense does this privileging of citizenship not entail a view of life? In what sense is a view of life not entailed in the notion that �� Just to spell it out: my suggestion is that “civicism” rather than individual autonomy is the “comprehensive doctrine” to which Rawls should commit himself in order to render his liberalism fully coherent. H owever, it goes without saying that recasting Rawls’s liberalism in this way entails a radical attenuation of the firm distinction between civic republicanism and civic humanism that Rawls develops in PL, pp. 205–6. A further point: Rawls’s standard line is that carrying one’s comprehensive views into the public realm rather than leaving them at the doorstop undermines civic unity. But if the comprehensive view that one is carrying into the public realm is a commitment

John Rawls’s Genealogy of Liberalism

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shared multi-denominational co-existence should be normatively affirmed and theocracy (or theocratic ambitions) should be normatively repudiated? Indeed, in what sense is there not a (liberal) view of life expressed in the ideal of mutual respect between citizens qua citizens? It starts to look as if, in Rawls’s modest liberalism, although grand liberalism has been barred from the front door, key aspects of grand liberalism have been slipped in the back door. I am already starting to get more drawn into the standard debates about Rawls’s formulation of political liberalism than I want to be (though I’ll come back to some of these challenges later in this chapter), so let me hasten to the discussion of the genealogy. The question raised by the genealogy is whether, on Rawls’s view, liberalism is fundamentally an ahistorical system of ideas – a system of ideas that’s morally and intellectually compelling because it can be laid out in a way that exhibits its philosophical coherence (which is what’s suggested by Rawls’s two main works of political philosophy), or whether the compellingness of liberalism follows from our grasp of a particular set of historical experiences; and if the latter, how religion figures in this history. The place where Rawls most directly addresses this question is the Introduction to PL, and the answer he gives there is far more oriented towards history (verging on a philosophy of history, one might say) than his main works of political philosophy would lead one to expect. In what follows, I’m especially interested in why Rawls feels impelled to insert a potted history of the genesis of liberalism, and in how this genealogical story possibly skews core conceptions in Rawls’s fully-developed account of his liberalism. Rawls introduces the genealogy by claiming that his conception of political liberalism is not a philosophical invention but rather the theoretical expression of the specificity of modern democratic political culture as shaped by the unfolding of a particular history – a history that opens up a decisive chasm between ancients and moderns. Rawls emphasizes that his own version of the narrative has only to shared civic life, then it makes no sense to say that this comprehensive doctrine is a solvent of civic unity. �� At the end of Rawls’s genealogy (PL, p. xxx), he writes: “The general problems of moral philosophy are not the concern of political liberalism, except insofar as they affect how the background culture and its comprehensive doctrines tend to support a constitutional regime” (my italics). This seems precisely an invitation to sweep “grand liberalism” in through the back door. �� Patrick N eal’s chapter in this volume offers a very helpful summing-up of these “standard debates” insofar as they bear on religion. N eal makes a persuasive case that at the end of the day, Rawls’s civic exclusion of religionists is nowhere near robust enough to have justified the kind of fuss it provoked among his critics. But then one can ask: if Rawls is willing in practice to allow considerable latitude for the expression of religious comprehensive doctrines in political debate, what was the point of making such a big issue of the need to subordinate comprehensive doctrines to public reason? �� Putting the point in this way suggests that the Introduction to PL is external to PL rather than a stage-setting aspect of the argument of PL. I realize that this is a bit paradoxical, but I think the point I’m making is nonetheless clear enough.

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the status of a “conjecture” (PL, p. xxiii), but he clearly believes that some such account shapes the agenda of modern politics in a crucial way. What is Rawls’s genealogical story? The story begins with the ancient G reeks. H e claims that the G reeks offered the true model of a “civic religion” – a religion centered on integration into the basic practices of the society and performance of central civic duties rather than doctrinal commitment or adherence to the precepts of a sacred text. It didn’t dispense salvation presided over by a class of priests, but told citizens how to be citizens. Insofar as the world of the G reeks expressed a conception of the highest good identified with “success and honor, power and wealth, social standing and prestige” (PL, p. xxiv), H omeric religion didn’t challenge the supremacy of these ideals but instead reinforced them: the H omeric gods basically replicated this conception of the highest good for human beings, albeit embodied in immortal rather than mortal beings. So the challenge to this vision of life (expressing the ethic of an ancient warrior class) came not from religion but from Socratic and post-Socratic moral philosophy (PL, pp. xxiii–xxiv). Rawls conceives the Socratic tradition not as challenging the reigning civic religion but simply addressing a different set of questions than the civic religion sought to address, and appealing more directly to reason in attempting to address that different set of questions. Rawls then very quickly leaps ahead to modernity, focusing on three key developments: the Reformation; the consolidation of a centralized state; and the emergence of modern science. O f these three key developments, the one that clearly interests Rawls the most is the Reformation, both with respect to how it transformed medieval Christianity and how it served as the ultimate source of the astounding religious, cultural, and social pluralism in the post-18th century world. What is laid out in Rawls’s genealogy is therefore not a two-stage history (ancients and moderns) but really a three-stage history (civic religion, pre-Reformation Christianity, and the post-Reformation situation, including liberalism as a response to the warfare between stage 2 and stage 3). H ow does stage 2 relate to stage 1? Rawls articulates a number of important differences: medieval Christianity is authoritarian in a way that G reek civic religion wasn’t; it offers a “religion of salvation,” promising eternal life for those who are saved; it is a doctrinal religion, requiring embrace of a specific compulsory creed; it is, as H obbes and Rousseau highlighted, “a religion of priests”; and it is, finally and crucially, an imperialist religion making universal claims that far exceed those asserted by the civic religion of particular ancient city-states (PL, p. xxv). These various �� For some sharp criticisms of Rawls’s account of G reek religion, see Daniel Dombrowski, Rawls and Religion: The Case for Political Liberalism (Albany: State U niversity of N ew York Press, 2001), pp. 3–4. The thesis of Dombrowski’s book is that the engagement with religion is not unique to PL, but, rather, extends through the entirety of Rawls’s oeuvre, to an extent insufficiently appreciated in the Rawls literature. �� The explicit challenges to H omer posed by Plato in The Republic force one to ask whether there wasn’t more direct rivalry between the H omeric and Socratic traditions than Rawls suggests.


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aspects of medieval Christianity form an integrated package, and although Rawls doesn’t cite Rousseau, all of these features of Christianity figure prominently in Rousseau’s analysis in his chapter on civil religion. But what crucially defines the Reformation’s relationship to this hegemonic religion is that it emphatically didn’t dissolve these authoritarian, illiberal, and imperialist features of its civilizational predecessor. O n the contrary, Reformation religion spawned a kind of replicant twin of medieval Christianity: equally dogmatic, equally intolerant (PL, p. xxv). W ith these two salvationist, doctrinal, and imperialist religions confronting each other, it is no surprise that the result was centuries of horrific religious warfare.10 The Reformation didn’t just confront a dogmatic and intolerant authoritarian church with a set of dogmatic and intolerant sects; it also gave rise to a tremendous pluralism of worldviews that eventually set the stage for political liberalism as the object of an overlapping consensus among those worldviews that met the standard of reasonableness. Although it was far from what was intended by Luther and Calvin (who remained entirely oriented towards the notion of a unique and binding theological truth), the ultimate consequence of the Reformation was the possibility of pluralism – a pluralism only possible on the basis of “the division of Christendom” – which in turn allowed for religious liberty.11 C onsidering the wars that were its immediate result, it’s easy to see the fracturing of Christendom as an unmitigated “disaster”; but this is trumped by its long-term meaning: reasonable pluralism founded on the natural “exercise of reason under the conditions of freedom” (PL, p. xxvi). Political liberalism “assumes the fact of reasonable pluralism as a pluralism of comprehensive doctrines, including both religious and nonreligious doctrines” (ibid.) and, as such, it has the Reformation to thank for its own possibility. Rawls concedes that prior to the historical experience of a

For another important discussion of the theme of how medieval Catholicism and Reformation Protestantism mirror each other with respect to religious intolerance, see Rawls, A Theory of Justice (O xford: O xford U niversity Press, 1973), pp. 215–16. See also Rawls, “The Idea of Public Reason Revisited,” in Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 1999), p. 603, n. 75: “A persecuting zeal has been the great curse of the Christian religion. It was shared by Luther and Calvin and the Protestant Reformers, and it was not radically changed in the Catholic Church until Vatican II.” 10 PL, pp. xxvii–xxviii: “the clash between salvationist, creedal, and expansionist religions … introduces into people’s conceptions of their good a transcendent element not admitting of compromise…. Political liberalism starts by taking to heart the absolute depth of that irreconcilable latent conflict.” That is, if one had been insistent on adjudicating this war of worldviews on the plane of conceptions of the good, the Wars of Religion would have lasted forever. Liberal societies succeeded in extricating themselves from this mess by starting to articulate an independent conception of political justice (or civic justice) that abstracted from these warring conceptions of the good. 11 �� Rawls (PL, p. xxvi) aptly cites H egel’s view that the disuniting of the church was a necessary condition for the state “reach[ing] its appointed end as a self-consciously rational and ethical organization”: Hegel’s Philosophy of Right, trans. T.M. Knox (London: O xford U niversity Press, 1967), p. 174.

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functioning pluralist society, it wasn’t unreasonable or unnatural to assume “that social unity and concord requires agreement on a general and comprehensive religious, philosophical, or moral doctrine” (PL, p. xxvii) – that is, some kind of theocracy, or at least civil religion. It was only “the successful and peaceful practice of toleration in societies with liberal institutions” that proved that stability needn’t be founded on intolerance (ibid.). Even if religion encourages us to believe in the damnation of those who are not co-religionists, the practice of ecumenical cooperation “with trust and confidence, long and fruitfully … in maintaining a just society” (ibid.) persuades us otherwise. Even though the Reformers still believed that stability requires theocracy, the long historical experience of trying to cope with the pluralism generated by the Reformation has taught liberal societies that true stability in a radically pluralistic situation requires the opposite (toleration and respect for freedom of conscience). Solution of the problem of securing stability under conditions of pluralism consists in separating political justice from “the highest good” (PL, p. xxvii).12 T he ancients didn’t have to wrestle with this problem of political justice because “the clash between salvationist, creedal, and expansionist religions” (ibid.) is something they never experienced. N or was it experienced within medieval Christianity since the Church then held a theological monopoly. In this sense, the Reformation introduced something utterly unique: the problem of joining in a mode of civic cooperation those who don’t share a comprehensive doctrine. Shared citizenship among those “divided by profound doctrinal conflict” (ibid.) seems impossible until one hits on the idea of separating justice and “the good.” According to Rawls, “the good” was defined for moderns by their religion (ibid.), and therefore modern liberalism’s solution to the problem posed by the Reformation only became possible when one succeeded in placing questions of the good (comprehensive doctrines) outside the sphere of justice. That is precisely the historical shift that political liberalism claims to conceptualize at the level of theory. In the last section of the genealogy (PL, pp. xxviii–xxix), Rawls gives a brief but incisive account of the intellectual movement (spearheaded by the heroic intellectual labours of H ume and Kant) whereby “moral knowledge” was detheologized and de-clericalized. Apprehensions of moral order came to be seen as coming from within rather than from an external source, and as universally accessible rather than confined to a clerical elite. Moreover, the great thinkers of the Enlightenment brought about a moral revolution in suggesting that it was possible for human beings to do what is morally right without being prompted to do so by divine sanctions. So does Rawls align himself with this great liberalizing movement in moral philosophy? N o, because while these thinkers would have been right had they taken these positions as something required by “a political conception of justice for a constitutional democratic regime” (PL, p. xxix), they in fact delivered an over-reaching version of liberalism by seeking “to establish a 12 �� There are echoes of H obbes in this formulation. I’ll come back to this towards the end of this chapter.


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basis of moral knowledge independent of ecclesiastical authority and available to the ordinary reasonable and conscientious person” (PL, p. xxviii; my italics) – that is, the establishment of a new set of moral truths that would answer on the plane of philosophical analysis the questions that the warring salvationist doctrines were also presuming to answer. As long as these questions are to be settled in the register of ultimate truth, we are still in principle stuck in the 16th-century sinkhole we are trying to escape. By contrast, political liberalism “maintain[s] impartiality between comprehensive doctrines” (PL, p. xxx) by not presuming to judge between, say, the view that moral order is immanent in human nature and the view that it is the product of divine command.13 What the genealogy traces (albeit with amazing concision) is the historical process whereby comprehensive doctrines that insist on a political monopoly and reject all compromise turn into reasonable comprehensive doctrines. What is a reasonable comprehensive doctrine? A reasonable comprehensive doctrine is one that doesn’t assert truth (Rawls would be naturally inclined to say its truth) sufficiently forcefully as to exclude shared citizenship with other comprehensive doctrines.14 This harks back to the conclusion of Rousseau’s chapter on civil religion: in Rousseau’s view, if we think of those committed to other doctrines of salvation as slated for damnation, we obviously cannot share citizenship with them.15 The purpose of Rawls’s genealogy is to lay out a history of pre-liberal religions (including Catholic Christianity and Protestant Christianity) that are not reasonable in this sense. In order to be reasonable (i.e., to become ecumenical13

�� This is the Rawlsian compromise: religions that refuse to join the overlapping consensus will be politically de-legitimized, whereas those that do join it will be spared any moral or philosophical challenges. O ne set of critics will attack the first side of this compromise; another set of critics will attack the other side of it. The compromise will satisfy neither those most committed to religion nor those most hostile to it. 14 �� See, for example, PL, p. 151: “equal liberty of conscience … takes the truths of religion off the political agenda.” 15 �� Jean-Jacques Rousseau, On the Social Contract, ed. �� R.D. Masters, trans. J.R. Masters (N ew York: St. Martin’s Press, 1978), pp. 131–2: “whoever dares to say there is no salvation outside of the church should be chased out of the State” (Book 4, chap. 8). There is a brief commentary on this passage from Rousseau’s civil religion chapter in Rawls, A Theory of Justice, pp. 215–16; but Rawls’s focus in this discussion is on Rousseau’s own intolerance – criticizing Rousseau for denying toleration to Catholics. O ne can also attempt to interpret Rawls’s key idea of “overlapping consensus” in relation to Rousseau’s formulation of the general will in Book 2, chap. 3: “take away from [private wills] the pluses and minuses that cancel each other out, and the remaining sum of the differences is the general will” (On the Social Contract, ed. Masters, p. 61). This juxtaposition of Rousseau and Rawls suggests the interesting thought that in both cases, political consensus is arrived at less by founding it on something positive than by politically subtracting commitments that will set citizens apart from one another. More generally, see the interesting suggestion by Brian Barry about Rawls as standing within a Rousseauian tradition of reflection on social order: Barry, “John Rawls and the Search for Stability,” Ethics 105/4 (1995), p. 880.


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citizenship-enabling), these religions must undergo a process of liberalization. The Wars of Religion were of course wonderfully educational with respect to the need for this liberalization vis-à-vis other religions in equal need of the same kind of liberalization. Political liberalism only becomes possible once this process of liberalization (this genealogy) has already unfolded itself. It would therefore be reasonable to speak of Rawls’s political liberalism as an “owl of Minerva” doctrine – it can be articulated philosophically only when the work of liberalization has already been done via a particular historical process. What the genealogy discloses is that Rawls’s liberalism is a mode of “H egelian” liberalism insofar as it is not intellectually free-standing (i.e., a-historical) but rather, dependent on a required (antecedent) history of liberalization.16 In other words, it is part of the philosophical structure of Rawls’s political philosophy, as it is for H egel’s, that it offers a retrospective or backward-looking liberalism rather than a forwardlooking liberalism (as were the liberalisms of Spinoza, Locke, Montesquieu, and so on). But then one can ask: What does such an “owl of Minerva” philosophy add to what history has already accomplished? O ne could say it’s not trying to do anything: it merely acknowledges the history of liberalization that has already been unfolded. Presented with religions that have not participated in this history of liberalization, it cannot supply “true” arguments or “normative foundations” that will encourage them to liberalize. It can merely remind them genealogically of the story that the history of illiberal religions already teaches: that unreasonable religions shed rivers of blood to no purpose whereas reasonable religions reap the benefits of ecumenical citizenship. H aving said all this, it still must be conceded that it is far from obvious why the Wars of Religion are directly relevant to the concerns of contemporary liberals. Rawls himself acknowledges this in a few places. Immediately after he completes his presentation of the genealogy in the Introduction to PL, he writes: It may seem that my emphasis on the Reformation and the long controversy about toleration as the origin of liberalism is dated in terms of the problems of contemporary political life. Among our most basic problems are those of race, ethnicity, and gender [whereas those of religion have been largely solved, he seems to be saying – R.B.] (PL, p. xxx).

�� See, for example, “Commonweal Interview with John Rawls,” in Rawls, Collected Papers, ed. Freeman, p. 621: “I give a historical answer, I don’t give a theoretical answer.” This helps explain why Richard Rorty aligns Rawls with H egel and Dewey rather than with Kant: see “The Priority of Democracy to Philosophy,” in Rorty, Objectivity, Relativism, and Truth [Philosophical Papers, Volume 1] (Cambridge: Cambridge U niversity Press, 1991), pp. 180–81, 184–5. There are also suggestive remarks about H egelian aspects of Rawls’s enterprise in Duncan Ivison, Postcolonial Liberalism (Cambridge: Cambridge U niversity Press, 2002), pp. 7–8. 16


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And in a discussion of J.S. Mill in relation to Locke’s doctrine of toleration, in his Lectures on the History of Political Philosophy, Rawls writes: During the wars of religion it was taken for granted that the content of belief was above all important. O ne must believe the truth, the true doctrine, otherwise one put one’s salvation in jeopardy. Religious error was feared as a terrible thing; and those who spread error aroused dread. By Mill’s time, however, the view of the question has obviously changed. The struggle over the principle of toleration has long since been settled.”17

If Rawls thinks the problem of toleration “has long since been settled,”18 why does he make a point of re-activating it by putting the Wars of Religion back on the liberal agenda? It isn’t obvious that the Wars of Religion are relevant to the problem of how to theorize contemporary liberalism. O n the other hand, neither is it obvious that the W ars of Religion aren’t still relevant (or becoming relevant once again). Consider what Mark Lilla writes in a recent book: For over two centuries, from the American and French revolutions to the collapse of Soviet Communism, political life in the West revolved around eminently political questions. We argued about war and revolution, class and social justice, race and national identity. Today we have progressed to the point where we are again fighting the battles of the sixteenth century – over revelation and reason, dogmatic purity and toleration, inspiration and consent, divine duty and common decency. We are disturbed and confused. We find it incomprehensible that theological ideas still inflame the minds of men, stirring up messianic passions that leave societies in ruin. We assumed that this was no longer possible, that human beings had learned to separate religious questions from political ones, that fanaticism was dead. We were wrong.”19

�� Rawls, Lectures on the History of Political Philosophy, p. 309. Interestingly, Steven B. Smith, in a review of this book, criticizes Rawls for failing to incorporate what he knows about the 16th/17th-century context in his readings of canonical liberal thinkers: see Smith, “The Philosopher of O ur Times,” The New York Sun, May 11, 2007 [http://www.nysun. com/article/54265, p. 3]. 18 �� Also, when Rawls writes that “equal liberty of conscience … �� takes �� religious truths off the political agenda” (PL, p. 151), one could interpret this as the summary of an historical accomplishment: since the 17th-century fight for liberty of conscience was successful, religious truths have been taken off the political agenda. 19 Mark Lilla, The Stillborn God: Religion, Politics, and the Modern West (N ew York: Alfred A. Knopf, 2007), p. 3. Lilla, in an encapsulated version of his argument (“The Politics of G od,” The New York Times Magazine, August 19, 2007, p. 30), rightly highlights Iranian President Ahmadinejad’s O pen Letter to G eorge W. Bush (May 8, 2006) as a remarkable testament to the continued (or resumed) salience of theocratic politics in the contemporary world. 17

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This may be in some respects a persuasive view of our situation as seen from a post-9/11 vantage-point. (After all, a world offering the prospect of theocratic states armed with nuclear weapons – our world! – cannot plausibly be considered to be a world safely nested in the hands of secularism.)20 But it is unlikely, to say the least, that it was in this spirit that Rawls offered his narrative about the Wars of Religion. So what else presents itself as a plausible interpretation of the relevance of the 16th century for Rawls’s philosophical project? H ere we can attempt to provide several possible answers to this question at the same time as trying to reconstruct how the genealogy sets the larger agenda for PL. O ur general thesis is that Rawls excavates the origins of liberalism qua reaction to the devastation wrought by the Wars of Religion because it conveys in an especially dramatic way why it is necessary for political liberalism to detach itself from any and all comprehensive views (insofar as this is possible). Put somewhat polemically, one could say that the Wars of Religion are a kind of rhetorical sledgehammer that can be brought to bear whenever citizens of a liberal polity feel tempted to make their comprehensive doctrines (especially religious comprehensive doctrines!) the topic of public exchange. What the Wars of Religion scenario highlighted in the Introduction to PL teaches us is that what it means to bring one’s comprehensive doctrine into the political domain is to aspire to impose this comprehensive doctrine by means of state power precisely in the manner of 16th-century theocracies. I would describe this as a skewing of the Rawlsian agenda, but Rawlsians will obviously see the matter quite differently. Rawls again refers back to the Wars of Religion in his Commonweal interview, and we can see from that discussion as well that the continuing relevance of 16th-century rival theocracies (Catholic and Protestant) connects directly with Rawls’s conception of public reason versus comprehensive views. Presented with the standard kind of objection to the core argument of PL (namely, that there is a “veiled argument for secularism” in Rawls’s appeal to public reason), Rawls responds: “H ow many religions are there in the U nited States? H ow are they going to get on together? O ne way, which has been the usual way historically, is to fight it out, as in France in the sixteenth century. That’s a possibility. But how do you avoid that? …. I can’t see any other solution [apart from public reason].”21 A gain, there is an aspect of rhetorical arm-twisting here: no one ought to be unwilling to relinquish their comprehensive commitments in the political domain if failure to do so means a return to the 16th-century situation where one has to “fight it out” (by implication, the unavoidable outcome once comprehensive doctrines enter the realm of state authority). The cure for pre-liberal Wars of Religion is to prohibit Catholics from requiring a Catholic view of life as a condition of citizenship; to prohibit Protestants from 20 �� “Theocracies with nuclear weapons” can come about either through Iran acquiring nuclear arms or through Pakistan becoming more of a theocratic state than it currently is. N either possibility can be ruled out. 21 �“Commonweal Interview with John Rawls,” pp. 619, 620.


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requiring a Protestant view of life as a condition of citizenship; and so on. But I think this suggested to Rawls a far-reaching theoretical predicament: if Catholics can’t insist on a Catholic view of life, and Protestants can’t insist on a Protestant view of life, can liberals insist on a liberal view of life? If we allow ourselves to think of liberalism as a kind of secular religion, should a “liberal theocracy,” so to speak, be permitted while Catholic and Protestant theocracies are prohibited? All comprehensive doctrines, whether religious or philosophical, are in principle “sectarian” and therefore cannot be appealed to in underwriting a properly liberal regime. H ence (despite the paradox), it is illegitimate to appeal to a liberal philosophy of life in founding a liberal polity. O ne can certainly see the line of thinking here, but it raises the very large question of whether one can be, for civic purposes, agnostic about the ends of life while decidedly privileging the needs of citizenship over the demands of faith (at least in cases where faith is anti-civic). In the Introduction to PL, Rawls writes: “To maintain impartiality between comprehensive doctrines, [political liberalism] does not specifically address the moral topics on which those doctrines divide” (p. xxx). H e similarly writes that “a zeal for the whole truth” represents a temptation to found liberal society on a more ambitious set of philosophical ideals than is appropriate for a constitutional regime, and political liberalism succeeds in resisting this temptation (PL, pp. 42–3). But can a view of society that is robustly egalitarian, “civicist” (committed to a strong doctrine of shared citizenship), and basically secular be “impartial between comprehensive doctrines” in the way that Rawls suggests?22 22

�� Earlier in this chapter, I referred to the theme of Rawls’s “civicism” – his commitment to a doctrine of strong citizenship that would actually make better sense philosophically if it were affirmed as in effect a comprehensive doctrine (see n. 3 above). In light of this robust civicism in Rawls, it is hard to comprehend why Sheldon Wolin is so bitterly critical of Rawls in the expanded edition of Politics and Vision (Princeton: Princeton U niversity Press, 2004). In fact, Rawls’s idea that members of a liberal society should embrace a “political conception of themselves” that defines a more encompassing citizen-identity – that is, more encompassing than their non-public identities – ought to be very appealing to Wolin. Interpreted according to its most attractive aspect (from my point of view and also that of early Wolin), the fundamental meaning of Rawlsian public reason is that, civically speaking, citizens (and even more so, judges and public officials) are in some ultimate sense obliged to address fellow-citizens on a basis of citizen-to-citizen and not sectarian-tofellow-sectarian or sectarian-to-possible-convert. Part of what this entails is that all citizens qua citizens have a civic identity that, within the specifically political realm, takes priority over their other non-political identities. This is precisely the set of ideas that seem quite close to Wolin’s own conception, at least in the original edition of Politics and Vision. I t’s true that I too am fairly critical of Rawls in this chapter. Just to make my own position clear: I think there are sound and unsound aspects of the doctrine of public reason. The idea of giving special weight to the civic exertion by which one assumes the identity of a citizen among citizens seems perfectly sound (and again, it’s puzzling that Wolin didn’t find this aspect of Rawls more appealing). But where the Rawlsian conception of public

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Why is Rawls so averse to casting his liberalism as founded upon a comprehensive view? In many ways, doing so would render his philosophical enterprise a much simpler one. N ot least, it would absolve him of charges by his critics (which are not unreasonable) that he is hiding his more robust philosophical commitments behind a façade of neutrality.23 It’s as if Rawls has somehow convinced himself that anyone committed to a comprehensive doctrine – including those committed to comprehensive versions of liberalism – latently harbours the ambition to impose this doctrine by force on all members of society. O n p. 37 of PL, he writes: a continuing shared understanding on one comprehensive religious, philosophical, or moral doctrine can be maintained only by the oppressive use of state power. If we think of political society as a community united in affirming one and the same comprehensive doctrine, then the oppressive use of state power is necessary for political community…. the Inquisition was not an accident; its suppression of heresy was needed to preserve that shared religious belief. The same holds, I believe, for any reasonable comprehensive philosophical and moral doctrine, whether religious or nonreligious. A society united on a reasonable form of utilitarianism, or on the reasonable liberalisms of Kant or Mill, would likewise require the sanctions of state power to remain so.

And in an accompanying note (pp. 37–8, n. 39), Rawls acknowledges that all of this (that is, the notion of Kantian or Millian tyranny) seems paradoxical; yet he again reasserts that the idea of a whole society joined in one particular philosophy, including a liberal philosophy, requires the coercive imposition of that philosophy upon the whole society (with Kantian or Millian Inquisitors, etc), in principle no different from the political enforcement of medieval Catholicism. Again, it’s as if reason goes badly off the rails is in its implausible suggestion that conceptions of what is valuable in life should be excluded from legitimate public discourse in the interests of maximizing shared ground among citizens. (For example, “Commonweal Interview with John Rawls,” p. 622: “this form of regime … has its own public form of discourse.” O n p. 242 of PL, Rawls speaks of “the duty to adopt a certain form of public discourse.” H e concedes that excluding comprehensive doctrines may lend a certain “shallowness” to the tenor of public discourse, but he nonetheless insists that this shallowness is an acceptable price to pay in order to be faithful to “our duty of civility to other citizens.” Also, see the important formulation on p. 152: “by avoiding comprehensive doctrines we try to bypass religion and philosophy’s profoundest controversies so as to have some hope of uncovering a basis of a stable overlapping consensus.”) I grant that assuming a strong civic identity must emphasize what citizens share; but why must we be that focused on what we share? (Again, it seems an over-reaction to the Rawls-constructed Wars of Religion scenario.) 23 See, for example, G eorge Klosko’s chapter in this volume: “in the guise of protecting citizens from one another’s comprehensive views, neutralists use their position to insure that their own views win” (p. 32); Klosko is presenting the views of Michael McConnell, but Klosko clearly is persuaded that this critique has quite a lot of force. N eedless to say, similar challenges are mounted by a hefty battalion of critics of Rawls.


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what it means to hold a comprehensive doctrine, whether a religion or a philosophy, is to aspire to coerce the whole society to accept that doctrine – to impose the true philosophy by means of “autocratic use of state power” (PL, p. 304). The thought experiment being laid out here is indeed a very strange one. Those engaged in the enterprise of philosophy are typically committed to reflection on the plane of comprehensive doctrines (i.e., as a purely intellectual activity) without any desire (latent or expressed) to see those doctrines enforced politically. Leaving aside Plato’s image of philosopher-kings, why would one even conceive the notion of philosophies like those of Kant or Mill being coercively imposed as state religions on whole societies? There is a related text in PL (pp. 134–5): Rawls states that he is providing an alternative to “the dominant tradition,” from Plato and Aristotle through to Sidgwick and (in our day) Raz and Dworkin, which sought to identify the one true conception of the good. The intellectual breakthrough associated with political liberalism consists in realizing that “the question the dominant tradition has tried to answer has no answer: no comprehensive doctrine is appropriate as a political conception for a constitutional regime” (p. 135). Again, this suggests that what the dominant tradition was aiming at was provision of an official theology for a state-imposed orthodoxy. Why can’t one be animated by “a zeal for the whole truth” (pp. 42–3) without at the same time being driven by a zeal for political enforcement of this truth? It is important to add that one can also raise problems with Rawls’s comprehensive doctrine/political doctrine distinction that have nothing to do with religion. Suppose one is a Marxist, say, or an environmentalist. Can one separate these political commitments from grander views of the ends of life? The issue is not whether these “sectarian” views should be allowed to impose their philosophy on the whole society (on the model of theocracy), but whether these views can even be given a legitimate hearing in ways that express their intended scope. What we wind up with, it seems, is a general contraction or flattening of the domain of political reflection and debate.24 If most non-liberal political views – not just those held by religionists – engage grander views of what is at stake in politics, the only citizens who will not have their political commitments delegitimized will be Rawlsian political liberals. And in fact the same challenge applies in the case of liberals (like Christopher H itchens) who are committed to challenging religionists in politically-charged ways that Rawlsian strictures would not permit. Daniel Dombrowski is concerned to respond to worries on the part of 24 �� Dombrowski, Rawls and Religion, p. 116: Rawlsians ought to make clear why we need “the lingua franca provided by public reason” by pointing out “the disrespect involved in politics if one speaks to others strictly in the terms idiosyncratic to one’s own comprehensive doctrine.” Does a G reen Party activist show disrespect for fellow-citizens by trying to expand the existing terms of political discussion by means of a far-reaching engagement with alternative philosophies of life? Do we risk Wars of Religion by allowing politics to be a mutual contest of such philosophies?


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Rawls’s critics that “Rawls’s strategy of avoidance robs political philosophy of its excitement and importance.”25 Well, the more serious worry is that this theoretical strategy will rob politics of its excitement and importance. Rawls’s “reasonable pluralism” is an attempt to pacify pluralism on the assumption that an unpacified pluralism, expressed politically, will all too easily lead to the resumption of a 16th-century-style politics of the sword (20th-century equivalent: Lebanon; 21stcentury equivalent: Iraq). The incoherence in Rawls’s doctrine of public reason seems to flow from trying to be inclusive and exclusionary at the same time: it’s a big tent that welcomes all “reasonable” comprehensive doctrines, but must bar those that are unreasonable. But if the boundary between reasonable and unreasonable is defined by whether one wishes to bring a not-yet-shared set of comprehensive commitments to bear on political life, it’s hard to see how this won’t entail an illiberal contraction of the scope of political deliberation by pre-defining many political possibilities as unreasonable before they’ve even been given a chance to make their case. If (again) Marxists had to adhere to the same strictures applied to fundamentalist Christians, they would be barred from making the political arguments they make on the basis of the philosophic commitments that define them as Marxists. Being required to cast their views only in terms that would be antecedently accessible to all citizens, Marxism would thereby be banished as a political possibility; it could survive only as a form of private faith. The paradox is that while Rawls’s political liberalism set out to avoid coercing people into a liberal philosophy of life, exclusion by normative fiat of those outside the liberal mainstream is precisely what is achieved with respect to existential commitments that straddle politics and worldview.26 Political liberalism doesn’t exist – it’s a phantom of the Rawlsian imagination. A liberal regime always reflects and embodies a liberal view of life, even if it isn’t cashed out in terms of Kantian or Millian autonomy. If liberals prize ecumenical citizenship above commitment to some more parochial but more over-arching vision of things, that is itself a liberal view of life. The more Rawls emphasizes the need to subordinate comprehensive doctrines to the needs of what one can call “pan-civic citizenship,” the more he asserts, willy-nilly, his own (fairly attractive) comprehensive doctrine – which ought to be defended as such. Calling this “political liberalism” merely obscures what should instead be acknowledged as a foundationalist principle.27 25

�� Ibid., p. 112. �� See, for example, Stanley Fish’s typically spirited argument along similar lines in “Mutual Respect as a Device of Exclusion,” in Deliberative Politics: Essays on Democracy and Disagreement, ed. Stephen Macedo (N ew York: O xford U niversity Press, 1999), pp. 88–102. Fish’s target is G utmann and Thompson, but his challenges also apply well enough to Rawls. 27 �� Political liberalism, with its idea of “apply[ing] the principle of toleration to philosophy itself,” of keeping liberalism philosophically shallow, and so on (PL, pp. 10, 152, 154, 242) – i.e., basing politics on notions that are supposed to be in some sense 26


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There remains one other way of interpreting why Rawls goes out of his way to highlight the continuing relevance of the Wars of Religion. As is intimated in Rawls’s nod to Judith Shklar in the Introduction to PL (p. xxvi, n. 10), Rawls agrees with many liberals in thinking that the compellingness of liberalism is best founded, not as the articulation of a positive philosophy of life, but rather as the imperative to avoid a “summum malum” (that is: on this view, the most compelling reasons for being a liberal are negative, not positive). And the Wars of Religion serve supremely well (as they did for H obbes!) as the concretization of the summum malum. This relates back to Rawls’s fundamental strategy of steering clear of liberalism as a comprehensive doctrine, and raises anew the question of whether this is the best strategy for grounding liberalism in the face of challenges from non-liberal comprehensive doctrines. It seems to me that there is still an easy challenge to Rawls’s foundational distinction between comprehensive doctrines and a political doctrine that is virtually impossible to banish. Why should devotees of an “unreasonable” comprehensive doctrine allow a need for common citizenship to trump this all-encompassing commitment (which is precisely what the adjective “comprehensive” is meant to conjure up)?28 If the answer is that we are obliged to be fair to co-citizens who hold divergent commitments, we can again ask why this sense of fairness should have trumping power over an all-encompassing interpretation of what gives purpose to life. In other words, why would an adherent of a non-liberal comprehensive doctrine defer to an understanding of shared citizenship that did not even claim for itself the moral and philosophical authority of a comprehensive doctrine?29 It is as if Rawls, in conceiving the idea of a political doctrine that is not a comprehensive doctrine, puts a self-willed moral-philosophical vacuum at the centre of his philosophy of citizenship. Why should that be thought to be a practical-political advantage? These questions of “why should citizenship trump X?”30 therefore lead us towards the idea that only citizenship formulated as itself philosophically uncontroversial, as if such a thing were possible – is merely a more radical version of the neutralism asserted by Rawls in A Theory of Justice with his doctrine of “the priority of the right to the good.” (Conceptions of the good, in both cases, refer to that sphere of religious and philosophical controversy above which Rawlsian liberalism seeks to elevate itself.) The neutralism advanced by early Rawls was not philosophically plausible, and the neutralism advanced by late Rawls is no more plausible. 28 �� See, for example, Collected Papers, ed. Freeman, p. 617: “A comprehensive doctrine, either religious or secular, aspires to cover all of life…. It aims to cover everything.” 29 �� To be sure, one can say “Forget about those committed to anti-civic comprehensive doctrines; rather, put your civic energy into cultivating citizenship with those capable of citizenship.” Still, it doesn’t seem very satisfying theoretically to abstain from giving a comprehensive account of citizenship as a human good if one might have, on a different understanding of liberalism, given such an account. 30 �� When one thinks about the possible contents of this “X,” Rawls’s assimilation of religions and philosophies as comprehensive doctrines starts to look much less persuasive. For a utilitarian or a Kantian to subordinate their philosophies of life to imperatives of shared

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a comprehensive doctrine can answer these challenges. If being a citizen among citizens is an important part of living a full, flourishing life, then we can begin to respond to questions about why merely political commitments can trump (what are by definition more metaphysically and more existentially ambitious) comprehensive commitments.31 But moving in this direction would require Rawls not only to drop his political/comprehensive distinction, but also to embrace liberal perfectionism – and therewith, Rawlsian liberalism, admitting that its core conceptions fail to achieve their purpose, would be forced back to the drawingboard. Acknowledging that commitment to citizenship stands within the sphere of reflection on the ends of life will not turn liberalism into a form of secular theocracy. Bibliography Barry, Brian, “John Rawls and the Search for Stability,” Ethics 105/4 (1995). Beiner, Ronald, Liberalism, Nationalism, Citizenship: Essays on the Problem of Political Community (Vancouver: U niversity of British Columbia Press, 2003). Dombrowski, Daniel, Rawls and Religion: The Case for Political Liberalism (Albany: State U niversity of N ew York Press, 2001). Fish, Stanley, “Mutual Respect as a Device of Exclusion,” in Stephen Macedo (ed.), Deliberative Politics: Essays on Democracy and Disagreement (N ew York: O xford U niversity Press, 1999), pp. 88–102. G alston, William, “Realism and Moralism in Political Theory: The Legacies of John Rawls,” in Shaun Young (ed.), Reflections on Rawls. An Assessment of his Legacy (Aldershot: Ashgate, 2009), pp. 111–29. H egel, G eorg Wilhelm, Philosophy of Right, trans. T.M. Knox (London: O xford U niversity Press, 1967). Ivison, Duncan, Postcolonial Liberalism (Cambridge: Cambridge U niversity Press, 2002).

citizenship doesn’t appear very difficult. For the member of an Amish community or for an Islamist to do so is an entirely different proposition. N on-liberal religions pose challenges to Rawls’s philosophy of citizenship that philosophical comprehensive doctrines don’t. 31 �� A similar challenge is put to Rawls (drawing on Rawls’s own acknowledgement of the problem) in William A. G alston’s chapter in this book: (p. 116, n. 20). Cf. “Civic Resources in a Liberal Society: ‘Thick’ and ‘Thin’ Versions of Liberalism,” in Ronald Beiner, Liberalism, Nationalism, Citizenship: Essays on the Problem of Political Community (Vancouver: U BC Press, 2003), pp. 58–9. My argument in that essay is that Stephen Macedo is able to formulate a more robustly civicist version of liberalism than Rawls’s because, although Macedo interprets himself to be faithful to Rawlsian political liberalism, he doesn’t allow himself to be hobbled by Rawls’s doctrinal distinctions to the extent that Rawls himself is.


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Klosko, G eorge, “Rawls’s Public Reason and American Society,” in Shaun Young (ed.), Reflections on Rawls: An Assessment of his Legacy (Aldershot: Ashgate, 2009). Lilla, Mark, The Stillborn God: Religion, Politics, and the Modern West (N ew York: Alfred A. Knopf, 2007). ———, “The Politics of G od,” The New York Times Magazine, 19 August 2007. N eal, Patrick, “Is Political Liberalism H ostile to Religion?,” in Shaun Young (ed.), Reflections on Rawls: An Assessment of his Legacy (Aldershot: Ashgate, 2009). Prusak, Bernard, “Politics, Religion and the Public G ood: An Interview with Philosopher John Rawls,” reprinted as “Commonweal Interview with John Rawls,” in Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 1999), pp. 616–22. Rawls, John, A Theory of Justice (O xford: O xford U niversity Press, 1972). ———, “The Idea of Public Reason Revisited,” in Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 1999). ———, Political Liberalism (N ew York: Columbia U niversity Press, 1996). ———, Lectures on the History of Political Philosophy, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 2007). Rorty, Richard, “The Priority of Democracy to Philosophy,” in Richard Rorty, Objectivity, Relativism, and Truth: Philosophical Papers, Volume 1 (Cambridge: Cambridge U niversity Press, 1991). Rousseau, Jean-Jacques, On the Social Contract, ed. �� R.D. Masters, trans. J.R. Masters (N ew York: St Martin’s Press, 1978). Smith, Steven, “The Philosopher of O ur Times,” The New York Sun, May 11, 2007 [http://www.nysun.com/article/54265, p. 3]. W olin, S heldon, Politics and Vision (Princeton: Princeton U niversity Press, 2004).


Chapter 5

Rawls’s Social Contract: N ot Really Jan N arveson

Introduction At the outset of A Theory of Justice Rawls says: My aim is to present a conception of justice which generalizes and carries to a higher level of abstraction the familiar theory of the social contract as found, say, in Locke, Rousseau, and Kant. In order to do this we are not to think of the original contract as one to enter a particular society or to set up a particular form of government. Rather, the guiding idea is that the principles of justice for the basic structure of society are the object of the original agreement.

Is Rawls’s project at a “higher level of abstraction” than classical contract theory? In Plato’s Republic, G laucon suggests that “... ordinary people … band together and make a sort of compact, the purpose of which is to commit them all against injustice, so that nobody will suffer from it. Still, they only make such deals because they know they are weak” (Plato’s Republic, Bk. II). G laucon is not obviously talking about entry only into a particular society or state, but of a general compact with ordinary people wherever. Moreover, we would do best to impute to H obbes and Rousseau a view of the Rawlsian kind – that the real object of the “social contract” is a set of general, normative principles for society at large, wherever and whenever. But the real question is whether what Rawls proposes will work for its avowed purpose. I intend here to enter two general objections, neither of them original to myself, though the statement and elaboration to come are, I presume, my fault alone. The first has to do with the effect of the Veil of Ignorance behind which Rawls insists the “negotiation” regarding principles of justice takes place. The second has to do with his method of Reflective Equilibrium. Both have been the subject of much discussion. Why does Rawls insist that we negotiate behind the Veil of Ignorance? H is official explanation is that to do otherwise would be unfair:

�� John Rawls, A Theory of Justice (Cambridge MA: H arvard U niversity Press, 1971), p. 11. A Theory of Justice is so frequently referred to in this chapter, that I use a bracketed page number hereafter for this purpose.

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Reflections on Rawls The idea of the original position is to set up a fair procedure so that any principles agreed to will be just. The aim is to use the notion of pure procedural justice as a basis of theory. Somehow we must nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage (p. 136).

The trouble with this, to start with, is that in a bargain, we expect people to go for the best deal they can manage, do we not? Why are we supposed to be “nullifying” the effects of “specific contingencies”? Suppose, for example, that you are simply a better violinist than the next contestant, and you win the prize. Can the other contestant complain about your superior abilities? Can he claim it’s “unfair” that you are better at this than he? That seems especially odd in view of the fact that the point of the competition, presumably, was to find out precisely that very fact – who is the better violinist. Rawls says that he wants to “nullify the effects of specific contingencies.” Do these include the fact that one is oneself? We normally suppose that facts are contingent. But is it a “fact” that I am myself? It is a fact, and a very contingent one, that there exists someone such that that someone is JN , yes. But it is not a “fact and a contingent one” that JN isn’t, say, Rupert Murdoch or Saint John the Baptist or G hengis Khan. If “I” were one of those chaps, I simply wouldn’t be me at all. Asking people to regard themselves as contingent is, on the face of it, difficult. And, of course, it just might pave the way to regarding them as interchangeable and dispensable. Asking them to defer to someone else in various specific ways is certainly something that can sometimes be perfectly appropriate, and reasonably complied with. An important question here is whether the fact that somebody else needs something which I happen to have is, of itself, a good reason for me to give it to him. O ne would think that the answer is negative; I don’t have to do things like that, though it might be nice and sometimes it might even be wise. And the “social contract” position, classically, has the significant virtue, as it seems to me, that it makes pretty clear why this should be the right assessment of it. From that point of view, the fact that you need something may motivate you to ask me to give it to you, or failing that, to offer something of value to me in order to induce me to give it to you. And that is something that Rawls agrees with. People have “their own plans of life,” and we assume, he says, that “the parties take no interest in one another’s interests” (p. 127). (This last claim, by the way, is often misinterpreted to mean something quite absurd, viz., that particular people never do take such interest in others. But what is needed for theory, and what is true, is that we cannot assume, in general, for any randomly selected persons A and B, that A does take an interest – either positive or negative – in B’s interests, it being entirely contingent whether and how much A does do this.) N ow, the idea of a veil of ignorance is introduced as follows:

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The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain. For given the circumstances of the original position, the symmetry of everyone’s relations to each other, this initial situation is fair between individuals as moral persons, that is, as rational beings with their own ends and capable, I shall assume, of a sense of justice. The original position is, one might say, the appropriate initial status quo, and thus the fundamental agreements reached in it are fair. This explains the propriety of the name “justice as fairness”: it conveys the idea that the principles of justice are agreed to in an initial situation that is fair (p. 12).

So the claim is that such a position ensures fairness. But does it? Is it true that if all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain? O r is there a catch to it? To see that all may not be well, let’s remind ourselves of the idea of social contract as expounded, or implied, by its earlier exponents. Their idea is that there is a society-wide contract, the idea being that all agree to it. N ow, we of course need to ask, as so many have, whether it is possible to have a society-wide agreement – or is that “pie in the sky” thinking? We will indeed return to that shortly, but meanwhile the point is that agreement is required. Justice is what all these very different people would agree to, at least if they had to agree to something or other. N otice, the claim is not that they would agree if they were somebody else, or if they were actually nobody at all but mere cyphers in some kind of pipe-dream calculus. The idea was that real people would agree, and would agree, then, in light of what we all normally have, namely quite considerable knowledge of ourselves, our peculiarities, our passions, our ambitions, and all that. N ow, Rawls, as we have seen, thinks that if we don’t get behind that veil, then somehow some people will be able to drive an unfair bargain. But how, after all, can anyone “design principles to favor his particular condition” if he must secure the agreement of everyone else? To do that is to give everyone a veto. If they must perforce agree, any proposal entailing a bad outcome for someone could simply be vetoed by that person, and that would be that. The point is nicely made by G .E. Pence: “Where unanimity and equal bargaining power are enforced, only impartial principles could in principle be adopted unanimously. Why then is a veil of ignorance needed at all?”

�� G regory E. Pence, “Fair Contracts and Beautiful Intuitions,” in Kai N ielsen and Roger A. Shiner (eds), New Essays on Contract Theory (Canadian Journal of Philosophy Supplementary Volume III, 1977, 137–52), p. 149.


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The idea of universal agreement is complicated along more than one dimension. But to begin with, let’s remind ourselves why the social contract idea involves contract, hence bargaining. We see this by distinguishing two senses of agreement: (a) Jones and Smith agree if they both happen to think the same thing. Jones prefers dry martinis, so does Smith; Robbins is a Buddhist, and so is Bertelman. But of course, the agreement here is fortuitous. They might have had different tastes, different religions – and after all, if we seek a very wide agreement, indeed a universal one, then there is no way that we’re going to have fortuitous agreement among all. (b) But with a contract, we do not expect or require the above sort of agreement. We seek agreement in the sense that the outcome of our discussion is agreement about what goes, what to do, what rules or principles to go by – but not the input. In bargaining, we go from nonagreement to agreement: each makes estimates of his own costs and benefits, each must decide how much an agreement is worth, and then each decides whether a given package of clauses in his or her proposal would be such, if it is accepted, as to leave him or her with a good deal, specifically one that is better than what she had in the status quo ex ante. N ow, to arrive at an agreement of the (b) type, the real contract, the idea that we can assume our agents, as it were, to be agent-blind, agent-neutral – because they don’t know who they are or what they can do or what their values are – is seriously misguided. Supposedly distinct agents who know nothing of themselves can’t make bargains, and that’s that. The whole idea would have gone off the rails. Strangely, Rawls says that, “O ne feature of justice as fairness is to think of the parties in the initial situation as rational and mutually disinterested” (p. 13). Is it? Rational about what? After all, in A Theory of Justice Rawls enlists the “theory of rational choice” (p. 17) – about which, happily, there is a “broad measure of agreement” – indeed, as he says there, “the concept of rationality must be interpreted as far as possible in the narrow sense, standard in economic theory, of taking the most effective means to given ends” (p. 14). H e will, he says, “modify this concept to some extent ... but one must try to avoid introducing into it any controversial ethical elements” (ibid.). (In his later work, Rawls backs off from claims to found his principles on rationality, moving instead to “reasonableness.” O f this, more later.) The discussion in A Theory of Justice, unfortunately, is slightly confusing in that, on the one hand, there is the question of what constitutes rationality as such, and on the other, the question of what ethical assumptions to make. The latter brings up deep and important questions, which we will go into shortly. But meanwhile, the point is that this standard theory of rationality requires that choosers have particular interests of their own of which they are, to put it mildly, aware – how else could they choose anything? N o ends, no means, no choices. G iven ends and �� John Rawls, Political Liberalism (N ew York: Columbia U niversity Press, 1993), pp. 48–53.


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means, choices can and must be made, and then the potential for disagreement reemerges, clearly enough. Yet as soon as you insist on agreement, you have, prima facie, a control. If agreement is required, then the strong would not be able to warp the principles of justice in their favor – but neither would the weak, for the two must reach agreement. The classic view needs, somehow, to explain and justify its “must” here. If we say we “must” reach agreement, well, what happens if we don’t? But the classic view has a promising answer: without agreement, we have no rules, and in the absence of rules, the likely outcome is war, at the limit of the H obbesian type. The undesirability of that scenario is what prompts agreement and, further, focuses the subject of agreement on violence and its control. That the social contract should have as its principal and possibly its only clause that we refrain from aggressing on each other in the course of our pursuit of our various ends is so plausible as to be, perhaps, obvious. (I’ll return to this later in the chapter.) Two Views of the Veil But Rawls eschews the obvious, and insists on his veil. What will this do? O ne possibility is that it will matter a lot: things will be very different, given the veil. But another possibility, to be taken very seriously, is that it will in fact do exactly the same thing as doing without it. What makes the difference is this. O n the first view, the agreement will be made on the basis of being behind a veil: we construct justice for people who don’t know who they are or what they want. But on the second view, those behind the veil of ignorance will nevertheless be aware of the fact that out there in the real world, people make decisions on the basis of their personal versions of the good life. This being so, the behind-veil reasoners will then see that what we have to do is to work out the arrangements that make sense for people of that kind – real people. In short, the behind-the-veilers will have the job of constructing, abstractly, the sort of agreement that would be reached by people not behind the veil but under the constraint of reaching agreement. I am very inclined to think that the first idea makes no sense at all. But something else makes sense: we randomize over the possibility of being this sort of person, that sort of person, etc., and then we try to maximize utility for each. If behind-the-veilers hope to maximize “their” utility under this condition, a plausible interpretation would yield the Principle of U tility. Rawls, of course, spends about a third of A Theory of Justice denying utilitarianism. And yet, as I pointed out long ago, Rawls’s methods can be plausibly argued to support utilitarianism. H e does say (p. 14) that it is an “open question” whether the principle of utility is what �� Jan N arveson, “Rawls and U tilitarianism,” in H arlan Miller and William Williams (eds), The Limits of Utilitarianism (Minneapolis: U niversity of Minnesota Press, l982), pp. 128–43.

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will be chosen in the O riginal Position. And he notes that one can reason toward average utilitarianism in what looks very much like that position (pp. 159–66). And “the combination of mutual disinterest and the veil of ignorance achieves the same purpose as benevolence [since it] forces each person in the original position to take the good of others into account”(p. 148). What defeats utilitarianism, he says, is that it does not sufficiently respect the “plurality and distinctness of individuals” (p. 29). U tilitarianism, he supposes, entails the possibility that we will be sacrificed for others in ways that we just cannot accept. “We are to accept the greater advantages of others as a sufficient reason for lower expectations over the whole course of our life” (p. 178). Rawls is firm that this won’t do. Many of us accept these latter objections. The question is, how can they be sustained behind a veil of ignorance? N ot knowing who we are, prima facie, obliterates our distinctness, doesn’t it? But if we do know who we are, then what? Will the untoward consequences Rawls fears actually follow? For that matter, why are they all that “untoward”? Why isn’t it instead amply untoward to say that justice in the form of Rawls’s two principles is “equivalent ... to an undertaking to regard the distribution of natural abilities as a collective asset so that the more fortunate are to benefit only in ways that help those who have lost out”? (p. 179). If I don’t like the idea of my utilities being regarded as a “collective asset,” why should I be any happier with regarding my natural abilities in that way? In fact, wouldn’t I like that even less? After all, that sounds very much like a kind of slavery – not to an individual slaveowner, but to the whole of our fellows: “society” determines, absolutely, what is to be done with my powers. Agreement N ow, this brings up two issues. The first is what the constraint on agreement amounts to and what justifies it, if anything. The second is what the role of ethical intuitions is to be in this kind of theory. We’ll deal with the second below, but a few words about the first are definitely in order. When we say that we are “constrained” to agree, what does that mean? It can hardly mean that human nature is wired in such a way that we will agree. What would prevent us from simply not agreeing? There is a classical answer to this, and it is unclear to what extent Rawls subscribes to it. N ot agreeing to anything means leaving us in the State of N ature in which, we are assuming, there are simply no rules at all. In H obbes’ depiction, this option is really intolerable – the “condition of warre, of all against all” – which he believes would eventuate in the life of man being “solitary, nasty, brutish, and short.” This, if true, has the implication that any of a huge variety of outcomes would be preferable – H obbes, notoriously, thinks that we can justify government in abstracto from this consideration, thus inducing us to put up with tyrants as evil as can readily be imagined. If we don’t like that – and we don’t – then we need to ask where H obbes’ argument goes wrong, if it does. In my view – shared by Locke among others – what’s wrong is the estimate of how things would go in the


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“state of nature” situation. Cooperation is by no means beyond the reach of people without government. It is, however, beyond the reach of people without morality. We can argue that rational people living more or less together will quickly evolve some at least modest constraints on general behavior, reinforced by familiar social devices – expressions of disapproval, exclusion from the group, or possibly violent punishment, in severe cases. H obbes, in fact, does not disagree with this last conclusion. H is errors about the “state of nature” apply to his handling of the political state of nature. But if we imagine instead a moral state of nature, a communal condition in which people do not have a shred of moral sense or responsiveness, then it is surely plausible to suppose that indeed mankind would be in a terrible way. Still, he himself argues that a morality whose fundamental rule is simply avoidance of violence in the attainment of our ends, is just what any rational person will find so obvious that he dubs this the “Law of N ature.” N ow, the nub of the derivation in H obbes is his claim that people are generally “equal” – not in many obvious ways, but especially in respect of our general capacity to make life miserable for others, and to have it made miserable for us at the hands of those others. In his view, the fundamental requirement is therefore the renunciation of violence. N o one, he thinks, can rationally expect to gain in society by trying to reserve to himself the right to use violence against others, with the implication that they cannot use it against him. W here does Rawls stand on that matter? N ot, I think, very far from H obbes, if at all. Rawls repeatedly insists that our “starting point” is a situation of freedom and equality. But what sort of equality? There are, he agrees, “especially deep inequalities” in our “expectations of life.” Yet they do not include the particular sort of inequality that consists in A enslaving B or beating up B whenever A feels like it. H obbes isn’t Freud; he doesn’t posit a native aggressive streak in us all. Rawls characterizes the project of justice as concerning the “scheme of social cooperation” (p. 7), a “system of cooperation designed to advance the good of those taking part in it” (p. 4). We could hardly expect such a thing if some were such as to be able to do nothing about others who can continually subjugate them. And among the “circumstances of justice” (#22), we read that “individuals are roughly similar in physical and mental powers; or at any rate, their capacities are comparable in that no one among them can dominate the rest. They are vulnerable to attack, and all are subject to having their plans blocked by the united force of others” (p. 127). It is no surprise that a group of individuals of whom that is generally true will band together to condemn the use of violence in pursuing individual ends. (U nfortunately, what it implies for the case of the use of violence by institutions and by groups, for ends claimed to transcend those of particular individuals, is another matter.) �� Thomas H obbes, Leviathan, ed. and intro. C.B. Macpherson (London: Penguin Books, 1968), Ch. XIV. �� The famous argument is set forth in Leviathan, Ch. XIII.

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What is not clear is how such a starting point will lead persons who are aware of their own particular capacities and interests to accept a general equalization of wealth, or social position, or more generally of goods whose distribution can be affected by social action, in some such way as Rawls’s second Principle appears to call for. Rawls, as we know, thinks that from behind the Veil of Ignorance we will adopt equality as the “benchmark”: “Imagine, then, a hypothetical initial arrangement in which all the social primary goods are equally distributed: everyone has similar rights and duties, and income and wealth are evenly shared. This state of affairs provides a benchmark for judging improvements” (p. 62). That is not obviously a result we will arrive at by real-world bargaining among highly unequal persons – for that, we start where we are. But if it is not where we start, then it is also not obvious how we would get to it from behind a veil, simply as such. For those behind the veil are only ignorant; they are not stupid. And they can see that people in the real world won’t accept this result, of equality as a benchmark. Why, then, do Rawls’s Two Principles look the way they do? The Appearance of Egalitarianism I have complained elsewhere that the perception, both by Rawls and by almost everyone else, that they do look to be quite egalitarian, turns out to be a mistake. To press that case is not a main interest of this chapter, though I will advert to it in certain aspects as our discussion proceeds. Suffice it to say for present purposes that they look as though they call for significant redistribution in society. The “look” in question comes from the passage just quoted. But immediately after those sentences, he continues thus: “If certain inequalities of wealth and organizational powers would make everyone better off than in this hypothetical starting situation, then they accord with the general conception” (p. 62). The expression “make everyone better off” is the problem locution. Very few of our actions benefit very many more persons than ourselves and possibly one or two others, though a great many of them do benefit those relatively few. When we are with friends, loved ones, associates, we characteristically act to some degree cooperatively, making both of us or all of us better off. But that leaves about six billion others who are typically unaffected. Are we then violating the rights of those others? O f course, Rawls is here talking about the “basic structure” of society, and so about institutions rather than individual actions. But even institutions very rarely affect everyone else, even when the “everyone” is only the fellow inhabitants of a fairly small town. And of course, most or all of those institutions do not benefit all even of those. Most – or, more likely, all – institutions not only benefit only some, �� Jan N arveson, “A Puzzle about Equality in Rawls’s Theory,” Social Theory and Practice 4 (1976): 1–27; reproduced in Jan N arveson, Respecting Persons in Theory and Practice (Rowman & Littlefield, 2002), pp. 13–34.


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but work at least somewhat to the detriment of others. And it is plausible to think that insofar as they do this, they are, to that extent, unjust, or at any rate they now are liable to a charge of injustice that needs to be dealt with – perhaps by claiming that the harm to others done by good institutions is eventually compensated by the good done in other ways. O r perhaps that this residual sort of harm is spread around very evenly and very thinly, so that none of us really has a complaint on that score. Whatever; though it is not really in the cards that all will literally benefit from anything that any one person or institution can do. H ow, then, is Rawls’s dictum going to function as a realistic criterion of justice? The short answer to this is that we really mean by ‘benefit all’ merely ‘not injure any’ – Socrates’ criterion. This indeed is achievable, by and large. But it is also not remotely egalitarian in any literal meaning of that term – unless we say that nonviolence to all is “equal.” H owever, in that case it is unclear that the second principle says anything that the first principle doesn’t already say. For the first one, in its earliest version, is notionally a general liberty principle, saying that everyone is to have “an equal right to the most extensive basic liberty compatible with a similar liberty for others” (p. 60). Such a “basic liberty” means absence of interference with our actions, and violence, harm, is precisely interference. So the first principle rules out exactly the same thing that the second one does, in this Paretian understanding of its meaning. But that Paretian understanding also means that the second principle actually implies no distributive criterion at all. Sixty billion for A, nothing for B, meets the criterion just as much as does six for A and one for B. It certainly is “in the cards,” as I put it, that we might reasonably expect agreement on general nonviolence as a social criterion of the kind that Rawls is looking for. A few sociopaths there may be, but the case that no one would simply agree to be killed, beaten, enslaved, or otherwise done badly by looks very good. For that we do not need and perhaps do not want, as I have suggested, a veil of ignorance. If such a veil would give us more, it is not clear that it is any longer relevant or even fair. And certainly the question of how it got there in the first place would now be very much on the table. As we know, Rawls is by no means averse to building extra premises into his framework so as to help provide the desired conclusions. But he is thought to be a bit more subtle about this than mere out-and-out intuitionists. The extra subtlety is supposedly provided by the famous idea of “reflective equilibrium,” which we turn to next. Moral Theory and “Reflective Equilibrium” The “main idea” of A Theory of Justice is that “one conception of justice is more reasonable than another, or justifiable with respect to it, if rational persons in the initial situation would choose its principles over those of the other for the role of justice” (p. 17). But what will make them prefer one set of principles to

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another? According to the accepted theory of rationality to which Rawls says he subscribes, the answer should be self-interest. That is to say, the morality of the chosen principle is a function of its being chosen by self-interested agents, in the special conditions under which social principles are to be chosen – rather than of its being deduced from an antecedently held morality. Such, at any rate, is the project of social contract theory in its classic understanding. But early on, there is another idea in Rawls, urged with considerable persistence: that “the principles which would be chosen match our considered convictions of justice or extend them in an acceptable way” (p. 19). Indeed, we are to work from both ends.... By going back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgments and conforming them to principle, I assume that eventually we shall find a description of the initial situation that both expresses reasonable conditions and yields principles which match our considered judgments duly pruned and adjusted. This state of affairs I refer to as reflective equilibrium (p. 20).

So our interest in “theory,” in a proprietarily narrow sense of that term, is driven in part by the interest in achieving certain specific normative results. This famous procedure has been the subject of much comment, not surprisingly. N ot very much of this comment is adverse – most of it, I would say, is largely adulatory. Indeed, it is not too much to say that “reflective equilibrium” has achieved the status of the accepted paradigm of our profession. The question is, though, precisely what the idea is, and why it should have such enormous influence – and what it does for the theory of justice. To set forth our query in general terms, the problem is this. A theory should have the merit of being true, if possible, or at least consistent with whatever facts we can get our hands on. In a scientific theory, we are trying to “save appearances”: if the theory tells us that grass is white and snow is green, something has gone wrong with that theory. Shall we likewise say, then, that if our moral theory tells us that murder is perfectly all right, though parting one’s hair on the left is not, then that theory is on that account to be rejected? But there is a problem about looking at moral theory this way, one that distinguishes it, I think, rather sharply from the project of science. For morals is the subject of very considerable disagreement, in a way quite different from science. People are not sharply divided on the subject of whether grass is green (when it is). If the attempt to get at large bodies of fact gives rise to disagreement, we look at statistical methods, measuring devices, and such; but we can in general get at the down-to-earth facts and see why we are in error about them when we are. With morals and politics, though, disagreements seem much deeper, and not of a kind that are settled just by looking again. When people have rival convictions and those convictions are settled, we have problems. To suppose that we can confirm a theory of justice simply by noting that it accords with our convictions, even though those are quite contrary to the equally strong convictions of others, is to


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whistle in the dark. We would like, surely, to understand morality in such a way that our convictions are either sustained or refuted by facts about how things are and how people are, etc., and by ways of putting those together that have the imprimatur of impartial reason, independently of and antecedently to disputed and disputable convictions. Rawls’s work in this respect has been much too readily taken as a justification – or, as I think, an excuse – for denying that we can do that at all. It would be very serious if that were correct. But I will argue that it is not. Discussion is impeded, perhaps, by failure to make a crucial distinction. It can hardly be denied that some sense of what moral principles look like is required if we are to construct any sort of theory in this area. Can all of our moral beliefs prior to theory be wrong? It is crazy to think that everything we believe about the world we live in is wrong, Descartes to the contrary notwithstanding. Is it crazy to believe that nothing whatever is right or wrong? U nfortunately, that is not quite so obvious. “Amoralists” seem to be real, not phantoms of the philosopher’s overheated imagination. O r are amoralists people who do believe that various things are right or wrong, but the information is simply of no interest to them? That’s a fascinating thought, in its way – but there is something very odd about it. Morals are for our guidance. If we agree that it ought to guide us, how can that be of no interest to us? Still, it remains that various things have been widely thought to be right or wrong, and if one were devoid of any such beliefs, it is hard to see where philosophical study of morals could get us. Perhaps we can accept, with Rawls, the idea that if a moral theory doesn’t “account for” our most firmly held beliefs, it is unlikely to command consent. U nlikely, yes: but impossible? H ardly. For suppose that all of the premises of the argument leading to total rejection of morals are true, and that our reasoning is provably sound? There would then be no alternative to concluding that morals ought to be rejected. At this point, however, the Rawlsian might claim that this is impossible, because among those premises are some incorporating the very beliefs we are trying to prove. That would certainly show that it is impossible, indeed. But it would also amount, I think, to throwing out the baby with the bathwater. Moral beliefs are controversial, though some are more so than others. If we include one of those beliefs among the premises of what we claim was a moral theory, we are unlikely to convince anyone who rejects that very belief. And we will not have advanced our understanding of morals. Turning now to Rawls’s explicit pronouncements: a large problem with what Rawls says is that its net output, strictly speaking, is nothing; that makes it pretty hard to disagree with. That is to say: we have the image of there being these two kinds of things: (a) previously held moral judgments, and (b) theories about the subject of (a). Let’s provisionally keep the two separate – however we do that – so as to allay other doubts about the distinction. And then let’s ask: how many, or how much in the way of such previously held judgments does Rawls insist that we simply must retain, no matter what? A problem is that the answer is: well, none, actually.

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O K, then: how much in the way of theory is the absolute minimum we must have? Answer, with much hemming and hawing and qualification: Again, none. If so, then the claim that arriving at a “reflective equilibrium” is the way to achieve an ethical theory is surely just wrong. It isn’t a way of doing anything – it’s just a language, a set of terminology, a set of blanks to be filled in with some values or others. But how are we to decide what those values are? Alas, we have no clear indication from the theory of reflective equilibrium as described. So, let’s rephrase or restate it. Let’s assume that somehow, at least some of our prior moral beliefs are to be retained, even if we can’t say which or how many. That is to say, let’s suppose that a legitimate move to make in ethical theory goes like this: “According to ethical theory, T, we ought to do x. But, obviously, we ought not to do x. Therefore, T needs to be rejected (or modified so that it doesn’t have this implication.)” Pre-theoretic Judgments: Two Views Let’s distinguish two different ways in which such a task might be done. (1) We can regard such judgments as hard evidence or data. A theory implying that the sky, on a clear day, despite looking as it does now and even though we are using the language in a perfectly normal way, is not actually blue would have to be rejected out of hand, as colliding with the obvious. Likewise, on this account of the matter, a moral theory implying that killing innocent people (etc.) was not wrong would have the same status. (2) A different way is to suppose that moral judgments are about something important, that there are important reasons for them, and that, people being what they are, it would be surprising if the most central and strongly held of them were to be found seriously wanting. A good theory will imply a fair number of the more obvious among our judgments, because those judgments will have been arrived at by the very sort of reasoning our theory endorses – if it’s a good theory. The difference I have in mind, then, is that (1) treats them as data, hard nuggets that can’t be denied, while (2) treats them as plausible theses or (low-level) “theories”. O n the second view, consonance with previously held judgments is a heuristic: it guides research. But it does not constitute hard data to be incorporated into the theory. Ethical theory is trying to find out why these previously-held judgments ought to continue to be held – why they work, if they do. It is not just trying to make a bunch of previously known results coherent with each other. The status of typically uncontroversial moral judgments on this view is perhaps a bit like “folk psychology”: it’s pretty well indispensable and can hardly be exactly “wrong” but it might well be accountable for in other terms that prove to be more basic. To anticipate, my problem with the usual formulations of Reflective Equilibrium is, in brief, that it either implies nothing, or else implies the worse of these two


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alternatives. But before advancing that thesis, let me first make a few general comments, applicable especially to Professor N ielsen’s analysis, which I take to be a very good statement of the standard view. N ielsen, more or less consonantly with Rawls, says that the idea is to arrive at a “consistent and coherent whole” – “the most consistent and coherent pattern achievable at the time...” and that “[t]he idea is to seek to maximize the coherence of our moral beliefs and practices.” N ow, that isn’t quite all he (or Rawls) says. The first phrase cited goes on to say, “... whole that squares with the other things that are reasonably believed and generally and uncontroversially accepted....” And my problem begins to come into focus when we contemplate these two components separately from each other. (1) Coherence theories of this and that have been popular of late. But we do well to begin by reminding ourselves that pure coherence is an absurd theory of truth, or probably anything. Every proposition, however absurd, is consistent with an infinite number of other propositions, so there’s no way to identify truth with coherence, if you care to retrieve the familiar view that some propositions are true and some aren’t. (2) Coherence starts looking plausible when you’ve got a bunch of propositions at least a good many of which are held on other grounds than coherence. Sensory perceptual experiences, for example, are sources of knowledge about what’s going on around us that are vastly better than mystical experiences or emotions or pure mathematical intuitions, for instance. The fact that x looks blue is an extremely plausible reason for thinking that it is blue, whereas the fact it’s a line of poetry by a follower of the Mahatma is not. It’s a lot more important for propositions to be coherent with the former than with the latter, if information about the world is what we are after. In like manner, when we get into this or that or the other relatively specific area of human inquiry or endeavor, we’ll have ample reason to regard some kinds of “data” as relevant and important, others as utterly beside the point; coherence will be sought for propositions relating to the one sort but not to the other sort. In short, coherence is obviously incapable of being a freestanding criterion of truth about anything. (3) N ow, this raises the question of in what way or how the “society’s firmly held considered judgments” are to be regarded in this connection. Actually, there is another question, perhaps one of clarification but perhaps not. O ne might at first assume that the sort of thing Rawls and others have in mind here are what we might call “first level” moral judgments, or for short, just plain moral judgments. But then there are claims such as that morality is subjective or that moral judgments are things that people differ about and so are unreliable, or that one man’s sauce is another man’s poison; in some cultures it is solemnly agreed by all that the gods are extremely insistent that we sacrifice a suitable number of virgins to them �� Kai N ielsen, “In Defense of Wide Reflective Equilibrium,” in After the Demise of the Tradition: Rorty, Critical Theory, and the Fate of Philosophy (Boulder: Westview Press, 1991), p. 23.


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every so often; and so on. N ow, a selection from among the various moral claims securing a lot of agreement in a given culture, for purposes of cultivating Reflective Equilibrium, can hardly be arbitrary. But what is to drive it? Perhaps this is where the distinction of N arrow and Wide Reflective Equilibrium comes into play. N ielsen makes out the difference in this way: N arrow, he says, “does not take into consideration facts about the functioning of economies and other parts of the social structure, conceptions of human nature, social facts, political realities, and scientific developments.” By contrast, Wide Reflective Equilibrium does take those things “into account.” N ow if this is right, it seems that N arrow Reflective Equilibrium amounts to pure cultural relativism, and should be abandoned as such. Turning to the Wide version, though, the problem is this: just how do the ethically significant propositions somehow selected, square with or otherwise cohere or fail to cohere with the various factual-sounding things on the “broad” list? When we turn to this question, we have a problem. Those of us who think that morality actually makes sense, and is a set of “beliefs” and “practices” that just might have a rationale and be analyzable in such a way as to enable us to figure out what’s going on, do not think that the way in which all these other things relate to the moral things is via “coherence.” In fact, it seems to me quite unclear that either coherence or incoherence relations exist at all here; or alternatively, that all moralities of whatever sort are coherent with all the other stuff, when you think about it. It isn’t just that the belief that one is N apoleon can be squared with all the other facts you like, if you insist on it, but also that until you have an actual analysis of morality, there is on the face of it nothing to go on. What is the source of controls on the view that women should be kept barefoot, pregnant, and in the kitchen? If it is that that view is not widely maintained at present, well, fine. But then, it was widely maintained at some other times and places, and who decides who’s right? O r, what decides it? Idle chatter about coherence will get us nowhere on that question. (For example, Aristotle’s advice, to “follow the man of practical wisdom” will of course do you no good if you don’t know who that is. And if the only way to find out who it is, is to find out what such a person would do and then see who does it, then the point is made. Similarly with Rawls’s “competent judges” in his early paper, “O utline of A Decision Procedure for Ethics.”10) N or is it much use to talk about “considered judgments” unless we have some idea just what it is about those judgments that makes them “considered.” Thus, the fact that Agent A is capable of reciting to himself the entire Encyclopedia

�� The term comes initially from N orman Daniels, “Wide Reflective Equilibrium and Theory Acceptance in Ethics,” Journal of Philosophy 76/5 (1979): 256–82; reprinted in N orman Daniels, Justice and Justification: Reflective Equilibrium in Theory and Practice (N ew York: Cambridge U niversity Press, 1996). 10 �� John Rawls, “O utline of a Decision Procedure for Ethics,” The Philosophical Review 60/2 (1951): pp. 177–97.


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Britannica in order to decide whether to cross the street at this time is not much of a recommendation. And surely neither Rawls nor N ielsen really wants to say that what most people believe is right just simply is right and that’s that. The situation cries out for a relevant understanding of what we are up to when we make moral judgments – what makes it work, if it does. N ow, if a given moral theory entails falsehoods, that’s bad news for that theory. So far, so good. But what makes a theory of that kind entail anything that can be checked independently for truth or falsity? And if we are not to avail ourselves of a dose of old-fashioned Intuitionism, the selection process telling us which of whose moral beliefs are to survive and which aren’t is going to have to get us into the foundations of Morals in a way that is, I think, quite incompatible with the “antifoundationalist” leanings that N ielsen wants to express. And indeed, I am rather hard put to know what to make of those leanings. Thus, N ielsen says, “Fallibilism is the name of the game. N o ultimate critical standards are sought ... though some moral truisms may always in fact be unquestioningly accepted. But this ... is not skepticism, for, if a reflective equilibrium is achieved, we will have found a rationale for our moral beliefs and practices ....”11 But what kind of a rationale? What is to preclude its being found that this or that idea about what to do is, given all the relevant facts, the right idea, and so not capable of being seriously questioned, ever? H obbes says that the “The Laws of N ature are Immutable and Eternal.” What makes N ielsen so sure that H obbes can’t be right about this? H obbes goes on to explain, “... for Injustice, Ingratitude, Arrogance, Pride, Inequity, Acceptation of persons, and the rest, can never be made lawful. For it can never be that War shall preserve life, and Peace destroy it.”12 More generally, I take H obbes to be saying that as long as people are, within very wide limits, the way they are, his rule denouncing interpersonal violence except in defense will be the one to go for. That also strikes me as very plausible. But if we are to talk “coherence” talk, it will sound funny. People used to talk correspondence talk here: a given moral theory was “suitable to the nature of man” and suchlike. And they had a point. Plato talked about the harmony of the soul, which sounds like coherence talk – and which led to similar problems of the kind pressed above. (What would make Plato so sure that N ero’s soul was out of harmony with itself?) More generally, the point is that moral theory, if it’s to get anywhere at all, is going to have to stay away from the ultra-ecumenical terminology of Reflective Equilibrium and get into the questions of what morality is about, or for, and then how to do that job well. If an “equilibrium” is what we arrive at when we think that way, then the point is that it’s the sort of equilibrium you’re in when you’ve got it right, and not vice versa. We aren’t right because we’re in equilibrium, which sounds exciting – we’re in equilibrium because we’re right, which is boring. And that’s my conclusion. Reflective Equilibrium is only right when it’s useless. 11

�� N ielsen, “In Defense of Wide Reflective Equilibrium,” 23. �� H obbes, Leviathan, Ch. XV.

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A Suggestion Well, why should we think that social contract theory does “advance our understanding of morals”? There is, I think, a very good answer to this, but one that is obscured if we suppose it an objection to it that after all, as David H ume pointed out, the obligation to keep our contracts and agreements is itself one of the main outputs of morals, one of the main principles of justice. Aren’t all attempts at such theory doomed to circularity anyway? To see that the answer is in the negative, we need a deeper analysis. What is essential to contracts is two (or more) parties with diverse interests, who are in a position to gain from voluntary interaction with each other. Each will do better to engage in the proposed exchange, provided that the other performs. But in addition, each is in a position to lose if he performs while the other does not. Thus contracts make the parties vulnerable to each other even as, and because, each can benefit from the other’s performance. So we see how the moral ideas of trust and temptation have their origin in human features that do not themselves presuppose morality. They do, of course, presuppose a capacity for morality: obviously we cannot come to have feature F if we do not have the capacity for having F. But they do not presuppose morality antecedently. N ow the question about Reflective Equilibrium is this: do we appeal to the moral results we seek as being themselves the sources of those results? If so, we really do have circularity. Rawls says, “ ... reflective equilibrium ... is an equilibrium because at last our principles and judgments coincide; and it is reflective since we know to what principles our judgments conform and the premises of their derivation” (20). But after all, if the “premises of their derivation” are the very principles themselves, why isn’t the equilibrium in question a case of dogmatic slumber rather than satisfaction at an explanatory exercise well done? Rawls say, happily, that “there is no point at which an appeal is made to self-evidence in the traditional sense ... ” (p. 21). But why is just resting with what we learned at our mother’s knee any better? Indeed, if we appeal to q to support p, where p turns out to be just q all over again, why aren’t we treating q as, indeed, self-evident in the sense that no evidence from beyond q is sought for its justification? Where are we on the Social Contract? The sense in which Rawls’s deliberations behind the Veil of Ignorance do not really reflect a Social Contract is, then, twofold: first, the parties aren’t really separate and thus aren’t really contracting, and second, appeal is made to the very things we are trying to derive, rather than to independently confirmable sources of support. Is this fatal? What we seek in moral theory may be agreement in the first but not necessarily the second of my two senses. And if indeed we all do agree on the various moral constraints introduced into Rawls’s “original position,” then we will have “reached” agreement – and what’s so awful about that? Well, first, it


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really does have to be pointed out that we do not have the anticipated agreement. There is no general agreement that we are “social resources,” and that we all owe it to the people at the bottom to get them as far up as possible. There is reasonably general agreement that people are not to be harmed in various ways for no reason, nor merely in order to help ourselves or others – but even there, the agreement stops quite quickly when the question is whether the majority is morally entitled to extract wealth from the minority for the latter purpose, at least. Besides that, even if we did have the extent of agreement envisaged, still, if the agreement is not accompanied by illumination, then it is philosophically unsatisfactory even if not morally so. And helping yourself to your premises on the basis of what conclusions you would like is not illuminating. It is easy to see why we do not have the envisaged level of agreement: the correctness of Rawls’s general perception about the basic idea of morals is precisely what militates against agreement on some of his main disputed claims. That basic idea is to find the principles on which all could, soberly, agree, given the situations of the others. But his two principles, he thinks, “are equivalent ... to an undertaking to regard the distribution of natural abilities as a collective asset so that the more fortunate are to benefit only in ways that help those who have lost out” (p. 179). Why would persons of great natural ability accept the idea that their abilities are a “collective asset?” Prima facie, they would not – at least, pending further explanation of just what it is to be such an asset. This, I think, is still more clearly seen when we move to his later work. In Political Liberalism, the idea of choice behind a veil is more or less supplanted by the idea of an “overlapping consensus.”13 The idea is that different cultures and other sorts of groups will, despite their differences, “overlap” on certain basic principles. Why they do so is not made particularly clear, and seems to be taken pretty much as an assumption constraining the project. Again, that is not promising if we seek illumination. Similarly, his discussion of “the rational versus the reasonable,” while interesting and plausible up to a point, raises a serious question. Reasonable people, Rawls says, “are ready to propose principles and standards as fair terms of cooperation and to abide by them willingly, given the assurance that others will likewise do so” (PL, p. 49). Merely rational persons, on the other hand, lack “the particular form of moral sensibility that underlies the desire to engage in fair cooperation as such, and to do so on terms that others as equals might reasonably be expected to endorse” (PL, p. 51). The “serious question” I have in mind is: why won’t rational people be reasonable, while they’re at it? H ere the discussions of many game theorists are of interest, and perhaps we should say that this is an unsettled question. Yet, as so often, H obbes has the most relevant answer: those who refuse to be reasonable in the sense described face ostracism and combat at the hands of those whom they propose to bilk. There is no serious question that endorsing social principles in 13 �� Rawls, Political Liberalism, “The Idea of an O verlapping Consensus,” pp. 133–72; see especially pp. 144–9; Political Liberalism is hereinafter cited as PL.

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the sense that we all, Rawls and the rest, are interested in examining, is a strategy we can hardly rationally expect to survive without. The supposedly rational but unreasonable person should not be viewed as a problem for our sort of interests, however much of a problem he may be to the police and to the neighbors. O n the other hand, though, the question is, just which principles are reasonable in Rawls’s sense? And here, I think, the balance of reason lies, again, with H obbes. The danger in distinguishing rationality from reasonableness and not bothering to worry our heads any more about those who are rational but not reasonable is that we will then proceed to assume our pet political principles into the very idea of the reasonable, ruling disagreement out of court. This is too nearly what has, I think, happened in current typical political discussion among academics. Rawls continued in this vein, so far as I know, to the end of his life. Why so? Perhaps he despaired of arriving at foundations of the kind I have been insisting on. O r perhaps he really did think any such project to be impossible, even if his formulation doesn’t show that. O r, finally, perhaps his social and professional milieu so firmly implanted his political proclivities in his mind that the idea that the right philosophy might undermine them was beyond his power to imagine. Whatever, the effect of his writings on the political philosophizing of our time has been immense. G iven the extent of confusion permeating that philosophizing, I think that a matter for concern. H ero worship is never a good idea in any case, and among academics especially, I suggest that it is a particularly unsatisfactory syndrome. Bibliography Daniels, N orman, “Wide Reflective Equilibrium and Theory Acceptance in Ethics,” Journal of Philosophy 76/5 (1979): 256–82; reprinted in N orman Daniels, Justice and Justification: Reflective Equilibrium in Theory and Practice (N ew York: Cambridge U niversity Press, 1996). H obbes, Thomas, Leviathan, ed. and intro. C.B. Macpherson (London: Penguin Books, 1968). N arveson, Jan, “A Puzzle about Equality in Rawls’s Theory,” Social Theory and Practice 4 (1976): 1–27; reprinted in Jan N arveson, Respecting Persons in Theory and Practice (Lanham: Rowman & Littlefield, 2002), pp. 13–34. ———, “Rawls and U tilitarianism,” in H arlan Miller and William Williams (eds), The Limits of Utilitarianism (Minneapolis: U niversity of Minnesota Press, l982), pp. 128–43. N ielsen, Kai, “In Defense of Wide Reflective Equilibrium,” in After the Demise of the Tradition: Rorty, Critical Theory, and the Fate of Philosophy (Boulder: Westview Press, 1991), pp. 231–48. Pence, G regory, “Fair Contracts and Beautiful Intuitions,” in Kai N ielsen and Roger A. Shiner (eds), New Essays on Contract Theory (Calgary: U niversity of Calgary Press, 1977), pp. 137–52.


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Rawls, John, “O utline of a Decision Procedure for Ethics,” The Philosophical Review 60/2 (1951): pp. 177–97. ———, A Theory of Justice (Cambridge MA: H arvard U niversity Press, 1971). ———, Political Liberalism (N ew York: Columbia U niversity Press, 1993).


Chapter 6

Realism and Moralism in Political Theory: T he L egacies of John Rawls William A. G alston

Introduction: The Legacies of John Rawls Political theorists have responded to the decades-long reign of what some have called John Rawls’s “high liberalism” in very different ways. Some have been content to practice the theoretical equivalent of Kuhn’s normal science, working within the paradigm while proposing additions and modest corrections. O thers have questioned the cogency of basic building-blocks, such as Rawls’s account of public reason or rejection of desert, without, however, abandoning the overall enterprise. Still others have argued that Rawls’s entire venture is misconceived. For them, Rawls’s principal legacy is a debate about the nature of political theory. The purpose of this chapter is to cast in higher relief an important example of this third category, which (following Bernard Williams) I term “realism.” W hile realists disagree among themselves, there is a theme or sentiment that unites them – the belief that high liberalism represents a desire to evade, displace, or escape from politics. Three quotations, selected from dozens, reveal the flavor of this critique: “the major project in modern liberalism is to use ethics to contain the political” (G len N ewey); “politics is regarded not only as something apart from law, but inferior to law” (Judith Shklar, characterizing what she called “legalism”); and the concern of recent political philosophy was to state “the principles of an ideal liberal constitution.” The real subject of this effort “was not political. It was law” (John G ray). Bonnie H onig offers a succinct summary of this line of argument. She points to a “mysterious phenomenon” – namely, “the displacement of politics in political theory,” especially, though not exclusively, in contemporary political theory: “Those writing from diverse positions – republican, liberal, and communitarian – converge in their assumption that success lies in the elimination from a regime of dissonance, resistance, conflict, or struggle. They confine politics . . . to the juridical, administrative, or regulative tasks of stabilizing moral and political subjects, building consensus, maintaining agreements, or consolidating communities and �� All quoted in Stephen L. Elkin, Reconstructing the Commercial Republic: Constitutional Design after Madison (Chicago: U niversity of Chicago Press, 2006), pp. 358–9, n. 2.

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identities. They assume that the task of political theory is to resolve institutional questions, to get politics right, over, and done with, to free modern subjects and their sets of arrangements [from] political conflict and instability.” Realists reject this account of political theory on the grounds that it is utopian in the wrong way – that it does not represent an ideal of political life achievable under even the most favorable circumstances. Tranquility is fleeting at best; conflict and instability are perennial possibilities. The yearning for a world beyond politics is at best diversionary, at worst destructive. As Stephen Elkin insists, “There is no substitute for politics – if by politics we mean the various ways in which we arrive at collective, authoritative decisions in a world in which people legitimately hold different views about the purposes of government and the manner it which it should be carried on.” Political Moralism and Political Realism Bernard Williams’ distinction between political moralism and political realism offers the best point of entry into my topic. By political moralism he means theories that “make the moral prior to the political.” In Williams’ view, both utilitarians and modern social contract thinkers give particular moral theories priority to politics, the former directly, the latter implicitly, by building moral premises into the stylized choice situation. A well-known declaration of Immanuel Kant offers the clearest example of this approach: Though politics by itself is a difficult art, its union with morality is no art at all ... . T he rights of men must be held sacred, however much sacrifice it may cost the ruling power. O ne cannot compromise here and seek the middle course of a pragmatic conditional law between the morally right and the expedient. All politics must bend its knee before the right (Kant, “Perpetual Peace,” Appendix 1).

By contrast, Williams states, “political realism” encompasses approaches that give more autonomy to “distinctively political thought.” This is not meant to imply that politics is amoral or immoral; rather, appropriate standards of evaluation arise from within politics rather than from an external moral standpoint. Williams insists �� Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca: Cornell U niversity Press, 1993), p. 2. �� Elkin, Reconstructing the Commercial Republic, p. 257. �� Bernard W illiams, In the Beginning Was the Deed: Realism and Moralism in Political Argument (Princeton: Princeton U niversity Press, 2005), pp. 1–3. Williams argues that the later Rawls of Political Liberalism did not transcend this schema: “it still represents the political conception [of justice] as itself as moral conception ...; the solution to the central problem of the stability of a just society, for instance, is worked out in terms of the moral powers of its citizens.” Williams, In the Beginning, p. 77, n.1.

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that “political philosophy is not just applied moral philosophy ... . N or is it just a branch of legal philosophy ... political philosophy must use distinctively political concepts, such as power, and its normative relative, legitimation.” Williams offers these propositions as a critique of Rawls, among others. This creates a puzzle, because Rawls also denies that political philosophy is applied moral philosophy. The context of the denial clarifies what he means by it: justice as fairness is not a comprehensive religious, philosophical, or moral doctrine that covers all values and applies to all subjects. It rather applies to the special case of a modern democratic society. And to the extent that justice as fairness deploys moral principles, it draws them from the “public political culture of a democratic society.” (I will set aside Rawls’s suggestion, which seems to me mistaken, that these features of justice as fairness characterize, mutatis mutandis, the whole of political philosophy.) To the extent that Rawls accurately describes his own theory, then Williams’ critique must be understood as subtler: even if the moral conceptions that Rawls deploys are drawn from rather than imposed upon politics, they nonetheless relate to politics in the wrong way and distort the reality of political life. At the beginning of A Theory of Justice, Rawls famously declares that “[j]ustice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant or economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.”10 Williams denies this; in his view, the first virtue of politics is order, not justice, and justice purchased at the expense of order is likely to prove self-defeating. Sometimes the demands of justice should trump competing considerations, sometimes not; justice enjoys nothing like an absolute �� W illiams, In the Beginning, pp. 3, 77. See also Mark Philp, Political Conduct (Cambridge, MA: H arvard U niversity Press, 2007), p. 1, and Richard Bellamy’s essay in Morten Ebbe Juul N ielsen, Political Questions: 5 Questions on Political Philosophy (London: Automatic Press, 2007), p. 20. �� John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: H arvard U niversity Press, 2001), p. 14. �� Ibid., p. 5. �� Equally mistaken is Rawls’s contention that moral philosophy, unlike political philosophy, can ignore the limits of practical possibility: “[A] moral conception may condemn the world and human nature as too corrupt to be moved by its precepts and ideals” (Rawls, Justice as Fairness, p. 184). Sure it can; but should it? U nless one believes, with Kant, that morality simply reflects our rational nature and therefore applies to all rational beings as such, the fact that other permanent features of our species’ physical and psychological makeup render a particular moral conception unworkable counts as a decisive objection against it. Rightly understood, morality is designed to secure the highest possibilities of the kind of beings we are and reflects our limits as well as potentialities. A morality that asks more of us than we can deliver makes us miserable to no good purpose. 10 �� John Rawls, A Theory of Justice (Cambridge, MA: H arvard U niversity Press, 1971), p. 3.


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priority over other valued features of political life. Rawls views modus vivendi arrangements as “political in the wrong way.”11 Again, Williams demurs; rather than being drawn from the implicit morality of political life, Rawls’s rejection of modus vivendi represents a dangerously utopian distance from the requirements of real politics.12 That is not to say that Williams straightforwardly plays H obbes to Rawls’s Kant. A moral conception – the idea of legitimacy – is central to Williams’ account of distinctively political standards. There is, he says, an essential difference between legitimate government and unmediated power: one of the few necessary truths about political right is that it is not merely might. Those who claim political authority over a group must have something to say about the basis of that authority, and about the question of why the authority is being used to constrain in some ways and not others. Moreover, there is a sense in which they must have something to say to each person whom they constrain. If not, there will be people whom they are treating merely as enemies in the midst of their citizens.13

Williams calls this internal requirement of political morality the “Basic Legitimation Demand” (BLD).14 Williams anticipates the objection that this demand is a thinly disguised version of an external moral requirement. It may be asked, he remarks, whether the BLD is itself a moral principle. If it is, he replies, “it does not represent a morality which is prior to politics. It is a claim that is inherent in there being such a thing as politics: in particular, because it is inherent in there being first a political question.”15 Specifically, Williams argues, the situation in which one group of people simply dominates and terrorizes another is not a political relation. Rather, it is the problem to which politics is supposed to offer a solution. The demand for legitimation is in effect an effort to prevent the supposed solution from becoming another version of the problem. Put more conceptually: the core difference between power relations

�� Rawls, Justice as Fairness, p. 188. Rawls defines a modus vivendi as a purely instrumental agreement founded upon compromise and exhaustion (John Rawls, Political Liberalism, paperback edn [N ew York: Columbia U niversity Press, 1996], p. xli); its continuation is dependent upon “circumstances remaining such as not to upset the fortunate convergence of interests” (Rawls, Political Liberalism, p. 147). By being subject to the vagaries of circumstance and fortune, a modus vivendi can offer nothing more than a temporary solution to the problem of political stability and therefore it is unable to secure the kind of stability needed to establish and maintain a well-ordered society. 12 �� W illiams, In the Beginning, p. 2, n. 2. I return to this point below. 13 �� Ibid., p. 135. 14 �� Ibid. 15 �� Ibid., p. 4. 11


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and political relations is the distinction between unlimited and warranted power; legitimation is part of the concept, and the reality, of politics. Williams leaves open the question of what counts as an adequate response to the BLD. H e makes one thing clear, however: the content of an acceptable BLD will vary with circumstances, as will the number and type of individuals whose assent to the proferred legitimation claim is required.16 In particular, it is not the case that only liberal democracies can be legitimate in all circumstances – for example, when some form of authoritarianism may be needed to prevent civil war and genocide. It is not even clear that liberal democracy moves closer to becoming the sole legitimate regime as underlying conditions become more favorable. Legitimation is not wholly open ended, however; our conception of the point of politics constrains what counts as an acceptable response to the BLD. This comes out clearly in Williams’ discussion of human rights: “O ur conceptions of human rights are connected with what we count as ... a legitimation; and our most basic conceptions of human rights are connected with our ideas of what it is for the supposed solution, political power, to become part of the problem. Since – once again – at the most basic level, it is clear what it is for this to happen, it is clear what the most basic violations of human rights are.”17 The use of political power to torture, terrorize, or oppress citizens contradicts the point of politics and can never meet the BLD. That suggests, Williams concludes, that we should minimize the extent to which our views about human rights depend on disputable theses of liberalism. We should instead rely on that “central core of evils” that is recognized as such always, everywhere, by most if not all human beings.18 The Distinctiveness and Autonomy of Politics The threshold distinction between political moralism and political realism raises some obvious questions: What is it that defines or secures the autonomy of politics? What are the features that make it a distinctive mode of human activity? While answers supplied by realists are not always as clear and convincing as one might like, it is possible to use their raw materials to construct a more satisfactory account. Aristotle offers a useful point of departure. H umans are social animals, but unlike other social animals (bees, or ants) the terms of social coordination are not hard-wired. The basic structure of political life is thus unscripted sociality; while we cannot escape the necessity of coordination, its terms somehow must be constructed and made effective. The classic liberal solution is to achieve coordination through consent: the terms on offer must be acceptable to all in circumstances where consent is neither 16

�� Ibid., pp. 135–6. �� Ibid, p. 63. 18 �� Ibid., p. 74. 17


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compelled nor deformed by gross asymmetries of power. Political realists deny that this is possible; at the end of the day, coordination will require coercion or the threat of coercion. This does not mean that we cannot distinguish between legitimate and illegitimate terms of coordination, only that the presence of coercion is not a sufficient condition of illegitimacy. There are limits, of course. Without something in common among members of a potential political community, politics (as opposed to war) is impossible. There is disagreement about how robust this zone of sharing agreement must be. In Aristotle’s view, agreement on avoiding force and fraud and enforcing contracts is not enough. The minimal state doesn’t qualify as a political community. Because politics is for the sake of “living well,” a well-ordered community must embody some agreement about what that is.19 In Rawls’s view, modern pluralism (and perhaps also the limits of human reason) put agreement on living well beyond reach. N onetheless, he insists, the denizens of well-ordered state must share a conception of justice, agreement on which can be reached despite unending disagreement on the substance of the good life.20 Political realists reject both these positions. To be sure, Rawls is partly right: U nder conditions of pluralism, agreement on living well is not to be expected. But shifting focus from the good to the right doesn’t help: agreement on justice is not to be expected either. (Even if abstract individuals shorn of the features that divide them in real life can reach agreement, they believe, this tells us little about the standards we should apply to politics here and now.) For realists, the agreement needed to sustain politics lies on another plane entirely. First, members of actual or potential communities must prefer coordination to the absence of coordination; �� A ristotle, Politics 1280a25–b40. �� O ne of Rawls’s odder suggestions is that his “political” conception of justice as fairness is a special case of political philosophy as a whole (Rawls, Justice as Fairness, p. 14). This is in effect to contend that political philosophy cannot apply comprehensive conceptions – religious, metaphysical, or moral – to the domain of politics without denying its distinctive features and problems. If so, then just about the entire tradition from Plato to H obbes and beyond has stumbled at the threshold. Two facially contradictory passages show how difficult it is to maintain this position. O n the one hand, Rawls says, “[P]olitical liberalism does not say that the values articulated by a political conception of justice, though of basic significance, outweigh the transcendent values (as people may interpret them) – religious, philosophical, or moral – with which the political conception may possibly conflict. To say that would go beyond the political” (Rawls, Justice as Fairness, p. 37). O n the other hand, in a section entitled “H ow Is Political Liberalism Possible?,” Rawls asks, [H ]ow can the values of a distinctive domain of the political – a subdomain of the realm of all values – normally outweigh whatever values may conflict with them?” (Rawls, Justice as Fairness, p. 189). Perhaps the emphasis is on the adverb “normally.” Even so, Rawls can answer his own question only by asserting that “the characteristic values of the political are very great values and hence not easily overridden,” which sounds suspiciously like the affirmation he earlier identified as going beyond the political. In the end, it may not be possible for Rawlsian liberals to avoid taking a stand on this question. 19

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they must share the belief that the consequences of non-coordination are or would be wholly unacceptable. And second, they must agree that some ways of solving the coordination problem merely displace, without eliminating, the unacceptable features of uncoordinated human life. To put this in familiar terms: individuals must agree that the core challenge of politics is to overcome anarchy without embracing tyranny. For if we do agree on this, we can create an arena of contestation over the terms of a common life that contains conflict short of war. Jeremy Waldron distinguishes between the “circumstances of justice” (Rawls’s term) and what he calls the “circumstances of politics.” This suggests a second way of defending the distinctiveness of politics: it represents a necessary response to conditions that other spheres of life do not encounter, at least not all at once and to the same degree. Waldron identifies deep disagreement as the core of the circumstances of politics and describes Rawls’s project as addressed to a politically uninteresting question, namely: “What would institutions look like if they were designed by people who were already agreed on a set of principles of justice?”21 Elkin builds on this suggestion; the “circumstances of politics” may be defined as a “state of affairs in which there is a large aggregation of people who (1) have conflicting purposes that engender more or less serious conflict; (2) are given to attempts to use political power to further their own purposes and those of people with whom they identify; (3) are inclined to use political power to subordinate others; and (4) are sometimes given to words and actions that suggest that they value limiting the use of political power by law and harnessing it to public purposes.”22 Many realists embrace, as well, a third account of the autonomy of the political domain: politics requires the exercise of judgment, which is undetermined by any principles – economic, legal, moral – one may accept. This thesis is the sum of two propositions. First, it is the case that in many domains of life (not just politics), deciding what to do typically does not take the form of a practical syllogism. In deciding which of two competing moral obligations to honor, for example, one may have to engage in the moral version of a legal balancing test in which all relevant considerations are weighed intuitively to reach a conclusion as to where the preponderance of good reasons lies. And second, the considerations relevant to the determination of political judgment cannot be reduced to reasons drawn from other domains. Indeed, many reasons that are legitimate within their own sphere would be inappropriate as bases of political judgment. While saintly individuals may sometimes sacrifice themselves in the belief that fiat justicia, pereat mundus is the defining principle of true morality, political leaders must act on the basis of very different considerations. A constitution is not a suicide pact, and salus populi suprema lex is a permanent pole star of political judgment—which is not to say that invoking the safety and security of the people is enough to justify any and all actions. �� Quoted in Elkin, Reconstructing the Commercial Republic, p. 359, fn.6. �� Elkin, Reconstructing the Commercial Republic, pp. 254–5.

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Realists broaden this point, insisting that political morality is not the same as individual morality and may often contradict it. The locus classicus of this thesis is of course Machiavelli, but one need not go all the way down his road to embrace it. O ne prong of the argument is the distinction between normal political situations, in which political agents can act in ways that converge toward individual morality, and extreme situations that require other forms of conduct. In circumstances of political fragmentation and disorder, restoring order and the possibility of decent, fear-free lives for citizens will often require leaders to employ means that would be forbidden in other contexts. In some circumstances, for example, it may not be possible to build or secure democracy democratically. And thus, as Philp puts it, “the integrity of the good life in which ethics and politics are effortlessly linked seems a utopian aspiration. . . . [P]olitical virtue is not only not rooted in the good life, it is in its nature exposed to demands that may compromise some of our most cherished commitments”23 There is a more modest, less Machiavellian path to the same conclusion. It is, simply, the contention that the basic point and structure of politics creates a qualitatively different set of challenges to which individual morality offers an inadequate guide. For example, Williams suggests, the decision to engage in international humanitarian intervention cannot be modeled on individual decisions made under the moral principle of rescue.24 O ne reason is that in private conduct, the underlying assumption is that many individuals could in principle engage in rescue; every bystander could have done something to assist Kitty G enovese, although none did anything. In the international context, vast asymmetries of power and capability suggest that only a few nations can intervene effectively; often only one. Another reason is that individual rescue typically leaves everything else as it was: throwing a rope to a drowning man typically does not require or produce reorganizations of social relations and responsibilities outside of the rescuer-rescued dyad. By contrast, effective humanitarian intervention typically requires the ability and willingness to exert powers and assume responsibilities that extend well beyond the original zone of catastrophe. Stopping ethnic cleansing in the Balkans required what has turned out to be an open-ended commitment to police a truce and foster political reconciliation; direct American intervention in Darfur might well produce a cascade of new challenges in Sudan and throughout the Muslim world. Williams offers a second example: we cannot reason directly from a private duty to tell the truth, to governments’ responsibility to be truthful. The latter may not be less stringent than the former, but its basis is different – in particular, the role of public truth in uncovering government abuse and warding off tyranny. N onetheless, there is a legitimate role for government secrecy, the protection of which may require officials to go beyond silence to a form of obfuscation that is hard to distinguish from outright deceit. Sometimes this can be justified, sometimes not.25 �� Philp, Political Conduct, pp. 34, 38–9, 89, 94. �� W illiams, In the Beginning, p. 148. 25 �� Ibid., pp. 157, 159. 23

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Finally, realists put institutions close to the center of their understanding of politics, and they accuse high liberals, among others, of misconceiving the role that institutions play. Political moralists, they say, tend to view institutions simply as means for the realization of antecedently established principles and aims. To be sure, there is something to this means/ends thesis: a flat-footed reading of the Declaration of Independence (“to secure these rights”) or of the Constitution (“in order to”) tends to support it. But, say the realists, there is much more to institutions than their instrumental function. In the first place, institutions provide arenas within which abstract concepts of principles and aims (rights, the general welfare) are worked up into concrete conceptions. As such, they help define the community’s purposes, not simply put prior understandings into effect. Second: while founders may have clear ideas about a political community, they in effect hand over their authority to the institutions they create. And once established, institutions take on a life of their own. N ot only can they move in anticipated ways; through their symbolic role as well as their specific decisions, they participate actively in a process through which public understandings of fundamental aims and principles mutate.26 As Marc Stears points out, this relative autonomy of institutions is morally ambiguous in all sorts of ways; extreme pessimists like James Scott see modern political institutions as inevitably betraying even the most high-minded ambitions.27 But whatever moral valence one may attach to this phenomenon, realists insist that it is a fact that we cannot ignore. A third point, in a similar vein: there is no guarantee that institutions will remain fixed over time, or in the same relation to founding expectations. O nce established, they are subject to all the vagaries of the circumstances in which they are enmeshed. As Philp puts it, “the process through which institutions are created, interpreted, and progressively reworked is itself a political process, rather than a merely deductive one.”28 And finally, individuals who are divided over political ends may well be able to agree on institutions as the best way of forging a common course despite their disagreements. Elkin speaks for most realists when he says that “Rawls . . . invites us to conceive of political and social institutions as either embodiments of moral-political ideals or simply as the means to achieve them. We would do better, however, to focus on the fact that the political institutions of any good regime must somehow enable people with conflicting interests and political views to live together in productive ways and to avoid the evil of civil disorder.”29 Coupled with the rejection of the priority of morality, this focus on institutions leads realists to recommend a shift in the agenda of political theory. Theorists, they insist, should spend less time debating the fine points of the Difference Principle �� Philp, Political Conduct, p. 240. �� Marc Stears, “Liberalism and the Politics of Compulsion,” British Journal of Political Science 37/3 (2007): 543. 28 �� Philp, Political Conduct, p. 239. 29 �� Elkin, Reconstructing the Commercial Republic, p. 256. See also Philp, p. 235. 26

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and more on the contexts and processes through which leaders engage one another, and the citizenry, to address shared problems. Richard Bellamy suggests that “[p]olitical philosophers have given too much attention to what seem to them desirable frameworks or outcomes, too little to the procedures whereby decisions are made... .”30 As Philip Pettit remarks with some asperity, “Philosophers are happy to talk about democracy ... without ever exploring the rival merits of the Washington versus the Westminster system.”31 Whatever its flaws, Madisonian constitutionalism is far closer to a model for the future theory realists recommend than are the articles typically published in Philosophy and Public Affairs. In many respects, their preferred future resembles the political theory of an earlier period of modernity, and of classical antiquity as well. To quote Pettit once more, “Many of the classic texts in political theory, from Machiavelli’s Discourses to Montesquieu’s Spirit of the Laws ... to Mill’s Considerations on Representative Government deal with how institutions should be ordered in the real world of parochial bias, limited resources, and institutional and psychological pathology... . [I]t is little short of scandalous that this area of work is hardly ever emulated by political philosophers today.”32 Elements of Political Realism I want now to focus on what appear to me to be the basic elements of political realism. I begin at the least surprising point – namely, realism’s resolutely antiutopian stance. To begin, realism takes its bearings from fear rather than hope. Preventing the worst is the first duty of political leaders, and striving for farreaching social improvement makes sense only when doing so does not significantly increase the odds that some previous abated evil will reappear. In assessing the odds, leaders and citizens must never assume that a good once secured is secured for good. Disruption is always possible, and the task of shoring up the conditions of decency is never-ending.33 Europe seems stable today, safely so. But realists insist on recalling that Communism died less than twenty years ago, that Iberia threw off authoritarian governments just three decades ago, that France had with some difficulty averted civil war as recently as the early 1960s; not to mention that N azism and fascism were defeated only sixty years ago. There is a second sense in which realism is anti-utopian: it insists that principles cannot serve as standards for political life unless their implementation is feasible in the world as we know it. At first glance, it seems that this point is not fundamentally at issue between realists and their adversaries. Rawls asserts that “Justice as fairness is realistically utopian: ... that is, [it asks] how far in our �� N ielsen, Political Questions, p. 24. �� Ibid., p. 116. 32 �� Ibid. 33 �� W illiams, In the Beginning, p. 3; Philp, p. 182. 30 31


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world (given its laws and tendencies) a democratic regime can attain complete realization of its appropriate political values.”34 But the appearance of agreement is illusory. Rawls focuses on “strict” or “full” compliance – what justice is under the assumption that everyone abides by agreed-on principles. Realists deny that this assumption is anything close to feasible, and they contend that this fact affects the way we should think about justice. As Kwame Anthony Appiah puts it, “many questions of justice only arise once people behave unjustly.”35 And they will. In Philp’s formulation: while we can imagine a just liberal state, we will never achieve it “for the utterly prosaic reason that political conduct is driven by motives and desires that, while they can be contained, disciplined, and to some extent laundered through political procedures and institutions and through deliberation and debate, cannot ever be expunged of personal desires and ambitions.”36 (More on this motivational realism later.) These permanent realities affect not only the application of principles to circumstances, but also their content, for the simple reason that taking an unattainable standard as the pole star is likely to produce, at best, the frustration of political aims, at worst, destructive distortions of politics. If one supposes that a republic of virtue is within reach, then the failure to attain it reflects either inadequate effort or deliberate but remediable human perversity. Acting on this belief is bound to end in oppression, even terror. Realists think and act very differently. Elkin speaks for many when he says that “[w]e do not best grasp the nub of partial compliance theory by focusing on ideal theory. Rather, we can best understand partial compliance when we understand just why there can only be partial compliance, and what we need to do to achieve even this modest state of affairs.”37 This is partly a semantic point, of course. To be meaningful, political standards are bound to stand at some remove from existing realities. H owever we define these standards, reality will fall short—that is, represent partial compliance with them. But the nub of the matter for realists is this: political theory must not assume that motivation or capacity to act in a principled manner is pervasive among all members of a political community. Some individuals are impaired in their capacity for justice, others lack it outright, a reality that no policies, no institutions, however wise, can change. Combining these two senses of anti-utopianism – focusing on the worst case and denying the possibility of full compliance – leads to a style of political action that Williams dubs “bottom-up” as distinct from “top-down.” Realists begin from where a given political community is, they assess the strength of the bulwarks against the great evils of the human condition that community has erected, and they formulate the next steps based on that assessment. Realism “does not try to determine in general what anyone has a right to under any circumstances” and then �� Rawls, Justice as Fairness, p. 13. �� N ielsen, Political Questions, p. 9. 36 �� Philp, Political Conduct, p. 111. 37 �� Elkin, Reconstructing the Commercial Republic, p. 255. 34

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apply that determination to every community.38 This is not to say that the concept of universal principles makes no sense; basic human rights exist and apply to all. It is to say that general principles, however valid, do not specify right answers to practical problems and, if taken literally as guides to practice, are apt to do more harm than good.39 Realists see political conflict as ubiquitous, perennial, ineradicable, and they regard political moralists as being far too sanguine about the possibility of achieving either normative or practical consensus. A leading arch-realist, Chantal Mouffe, goes so far as to build conflict into her definition of the domain and tasks of the political arena: “[B]y ‘the political’ I mean the dimension of antagonism which I take to be constitutive of human societies, while by ‘politics’ I means the set of practices and institutions through which an order is created, organizing human coexistence in the context of conflictuality provided by the political.”40 Less definitionally assertive realists go pretty far in the same direction; Williams comments that “the idea of the political is to an important degree focused in the idea of political disagreement ... [and] political difference is of the essence of politics.”41 The realist focus on ineliminable conflict rather than reasoned consensus does not mean that political theory should go to the other extreme and valorize disruption and strife over settled arrangements, as Roberto U nger has sometimes done. H onig acknowledges that “[t]he perpetuity of conflict is not easy to celebrate,” and she does not do so. It is rather to say that politics is always and everywhere a tension between the drive for and goods of stabilization and consensus, on the one hand, and the drive for and goods of destabilization and conflict, on the other. To recognize this enduring duality is to acknowledge that the maxims of law, economics, and morality will never displace the need for political decisions, informed but undetermined by any intellectual discipline.42 Realists offer a number of accounts, not mutually exclusive, for the political centrality of disagreement. Many are value pluralists who believe that reason underdetermines, if not basic values themselves, at least their relative weight and priority when they come into conflict. And they will: value pluralism defines an inharmonious moral universe.43 Even when rational closure is possible, it usually won’t be reached, in part because of the various burdens of reason, but mainly because the separateness and self-preference of individuals and affinity groups militates against agreement. And as Appiah reminds us, political disagreement is �� W illiams, In the Beginning, p. 61. �� Ibid., p. 72. 40 �� Chantal Mouffe, On the Political (London: Routledge, 2005), p. 9. 41 �� W illiams, In the Beginning, pp. 77–8. 42 �� Honig, Political Theory, pp. 4, 211. 43 �� John G ray, “Agonistic Liberalism,” Philosophy and Social Policy 12/1 (1995): 111–35; Williams, pp. 115–27 (arguing against Dworkin’s claim that liberty and equality, rightly understood, cannot conflict). 38

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not only about values; individuals and groups may harbor fundamentally different pictures of how the world is configured and how it operates.44 Realists insist that political disagreement is very different from intellectual disagreement. Political moralists, Williams remarks, tend to construe conflicts in political thinking as “rival elaborations of a moral text,” an understanding that is explicit in Ronald Dworkin’s work and implicit in many others. But this is “not the nature of opposition between political opponents,” which “cannot simply be understood in terms of intellectual error.” O ur sentiments, our interests, our physical and cultural particularity are all at stake.45 While we know that not all intellectual disagreements occur for the sake of finding the truth, it is at least possible to believe that truth-seeking is their telos. It is much harder to believe that political disagreements reflect a tacit orientation toward finding and enacting the common good. Politics, says Mouffe, is not an exchange of opinions but rather a contest for power. This means that there is an ineliminable element of “hegemony” in even normal politics; otherwise put, that non-consent and therefore coercion or the threat of coercion enter, not only into enforcement of decisions against the non-compliant, but also into the decisions themselves.46 This line of argument has an important consequence for our understanding of real-world political conflict. Williams spells it out: treating our adversaries “as opponents can, oddly enough, show more respect for them as political actors than treating them simply as arguers – whether as arguers who are simply mistaken, or as fellow seekers after truth.” O therwise put, a political decision “does not in itself announce that the other party was morally wrong or, indeed, wrong at all. What it immediately announces is that they have lost.”47 We cannot straightforwardly reason from the procedure through which a political system reaches closure – even if it features deliberation – to the validity of the conclusion. (We may have reasons, however, for believing that on average and in the long run, some decision-procedures map better than others onto empirically and morally justifiable outcomes.) If conflict is ineliminable, it is natural to see the ordering and channeling of conflict as the core of politics from which the rest radiates. Williams identifies the first political question “in H obbesian terms as the securing of order, protection, safety, trust, and the conditions of cooperation. It is ‘first’ because solving it is the condition of solving, indeed posing, any others.”48 How and how well different forms of political organization do this provides a key criterion by which they can be judged. Many realist liberals argue, with Locke, that H obbes’ “solution” to the problem of conflict recapitulates the problem. Bellamy suggests that democracy �� N ielsen, Political Questions, p. 7. �� W illiams, In the Beginning, pp. 13, 78. 46 �� Mouffe, On the Political, pp. 17, 51; Philp, 189. Stears’ essay (n. 21) is a superb summary of this strand of realism. 47 �� W illiams, In the Beginning, p. 13; emphasis in the original. 48 �� Ibid., p. 3; see also Philp, p. 9. 44 45


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enjoys an overall edge in “mediating between competing ethics and rationalities” in the body politic.49 When conjoined to pessimism about the possibility of purely rational consensus, the need to abate conflict implies a more favorable stance toward coordination through modus vivendi than political moralists typically embrace. Indeed, rough and ready accommodation is often the best a community can do. (It is the only possible way forward in Iraq ... which is not to say that the competing parties will pursue it.) Rawls disparagingly contrasts what he terms “a mere modus vivendi” with the principled basis of his own constrained pluralism. This invites Williams’ retort: “The very phrase ‘a mere modus vivendi’ suggests a certain distance from the political; experience (including at the present time) suggests that those who enjoy such a thing are already lucky.” The fortunate ones should not imagine that their communities have solved the task of political stabilization once and for all; disorder is a perennial possibility, and it is important to reverse the breakdown of trust and social cooperation before the situation degenerates into wider conflict. To be sure, inequalities of bargaining power and threat advantage can always be adduced against modus vivendi solutions. But the simple fact that the parties have found a way to abate conflict counts for quite a bit in politics, and theorists should recognize this.50 In thinking more specifically about the requirements for sustainable order, realists emphasize the need for psychological and motivational realism. Some of their case is familiar: reason determines conduct to only a limited degree, and self-interest will always be powerful. But their thesis is more complex and interesting in two important respects. First, while political moralism sees a twotiered psychology of reason and interest and believes that practical reason has the capacity to substantially constrain interest,51 the realist critique goes beyond doubting that reason is that efficacious. Moralists, say the realists, leave out an entire dimension of the human psyche – namely, the passions and emotions. Anger, hatred, the urge to dominate, the desire to destroy – these and many other impulses may not be rational, but they do not predominantly reflect interests either. We cannot understand politics without taking the passions and emotions into account.52 �� N ielsen, Political Questions, p. 20. �� W illiams, In the Beginning, pp. 2–3. 51 �� Rawls, Justice as Fairness, pp. 6–7, 18–19. 52 �� Pierre Manent, A World beyond Politics? A Defense of the Nation-State (Princeton: Princeton U niversity Press, 2006), pp. 75, 163–4; Elkin, p. 255; Mouffe, On the Political, p. 24. Rawls contends that the two-tier conception of the person is “worked up from the way citizens are regarded in the public political culture of a democratic society” (Rawls, Justice as Fairness, p. 19). As an historical and interpretive proposition, this is questionable. At the very least, the cultural self-understanding of democratic societies admits of more complex and less sanguine psychologies. If Rawls were right about the two-tier conception, this would constitute a serious reservation against the adequacy of democratic culture. The fact that Rawls appears to regard aspects of human psychology such as envy, spite, and the urge 49 50


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While it is oddly comforting to believe that suicide bombers are moved by a kind of rational calculus – the hope of reward in the afterlife, it is just as likely that their rage is so intense as to make self-immolation acceptable in the service of a wider circle of destruction. As we see every day, violent antipathy can blind parties to the fact that some possible agreements would serve the interests of all. Such an account of psychology has important consequences for the construction of stable and decent political orders. The centuries-old effort to replace the passions with the interests is doomed to failure. Commerce may well soften the most destructive passions, as thinkers from Montesquieu on have argued, but these passions will never vanish. Indeed, we can observe a kind of “return of the repressed” dialectic at work in modern history: sustained periods of peace and prosperity can lead to contempt for the softness and risk aversion of commercial societies and produce a yearning for the (alleged) nobility of armed conflict. (H istorians have noted the joy with which many young men throughout Europe greeted the outbreak of World War O ne.) Rather than hoping for the disappearance of aggressive impulses, theorists and constitution-makers need to accept, and channel as best they can, a host of morally ambiguous motives for public action. A modern democratic regime, says Elkin, “not only controls such often unattractive, even dangerous motives, but also relies on them for producing the good that is republican government.”53 There is a second key difference between moralists and realists concerning moral psychology: even realists who endorse liberal democracy as the best regime under modern circumstances, and therefore accept the moral and civic equality at the heart of modern democracy, acknowledge important inequalities among individuals. These inequalities go beyond the “unequal faculties of acquiring property” Madison famously emphasized in Federalist 10; they encompass, as well, differences in cognitive and moral capacities. As he declared in Federalist 57, “The aim of every political constitution is, or ought to be, . . . to obtain for rulers men who possess the most wisdom to discern, and most virtue to pursue, the common good of society.” With Aristotle, Madison believed that the selection of leaders through election (rather than lot) was an aristocratic procedure that would, on average and in the long run, allow the wisest and most virtuous to rise. Realists reject the assumption that human beings are equal in what Rawls identifies as the two fundamental moral powers. This does not mean that realists must reject (or that many do reject) the political arrangements of modern democracy. It does mean that the coexistence of empirical inequalities among individuals alongside their moral and civic equality is a fact that constitution drafters and policy makers ignore at their peril. This thesis is less unfamiliar in practice than to dominate as the product of defective social conditions is not encouraging (Rawls, Justice as Fairness, p. 88). 53 �� Elkin, Reconstructing the Commercial Republic, p. 267. O n this theme, see generally, Albert O . H irschman, The Passions and the Interests: Political Arguments for Capitalism before its Triumph (Princeton: Princeton U niversity Press, 1977).

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it may seem in theory. While we think of jury duty and military service as zones of civic equality, we acknowledge through our selecting procedures that some of our fellow citizens should not be jurors and soldiers. And we hope (sometimes against hope) that our convoluted process of electing presidents will bring to the fore individuals whose governing capacities are well above average and who will remain committed to constitutional governance. The realists’ view of moral and political life leads to deep skepticism about the extent to which democratic decision-making can be reconstructed along the lines of rational deliberation. They believe, with Aristotle, that real-world political deliberation is and will always be incompletely rational and that the theoretical presuppositions of deliberative democrats, whether inspired by H abermas or Rawls, are too demanding ever to be met in practice.54 “U nder the pragmatic presupposition of an inclusive and noncoercive rational discourse among free and equal participants,” says H abermas, “everyone is required to take the perspective of everyone else, and thus project herself into the understandings of self and world of all others.”55 It is hard to imagine why we should take this requirement seriously, even as a regulative ideal. For his part, Rawls speaks of the need to assume a “certain good faith” without which we cannot deliberate together. But should we assume anything of the sort? Put differently: rather than framing a conception of public reason around the assumption of mutual good faith, perhaps we should go the other way round, shaping deliberative theory and practice in light of the certainty that this presumption will not be equally true for all members of the community. It is from this standpoint, notes Bernard Yack, that Aristotle describes the appeal to character as the most effective form of public argument, “especially when people are uncertain about which of a number of options to favor, a situation that is much more common than we like to think.”56 If so, the American electorate’s oft-deplored focus on the character of political candidates rather than on the details of their policy proposals is anything but diversionary. Many political moralists endorse deliberation as the best mode of social coordination. To this realists offer a number of responses. First, an obvious but often-overlooked point: on its own, deliberation is not adequate to the task of coordination. At its best, deliberation can help inform the judgment of the deliberators, but moving from these judgments to a binding decision requires, in addition, a decision-rule. U nless deliberation yields unanimity, unlikely when serious and contested issues are at stake, the rule will involve an element of 54 �� For some of the best empirical evidence bearing on this point, see Diana C. Mutz, Hearing the Other Side: Deliberative versus Participatory Democracy (N ew York: Cambridge U niversity Press, 2006). 55 �� Quoted in Robert G oodin, “Democratic Deliberation Within,” in James S. Fishkin and Peter Laslett (eds), Philosophy, Politics and Society 7: Debating Deliberative Democracy (O xford: Blackwell, 2003), p. 76, n.48. 56 �� Bernard Yack, “Rhetoric and Public Reasoning: An Aristotelian U nderstanding of Political Deliberation,” Political Theory 34/4 (August 2006): 429–30.


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force majeure. And unanimity is not to be expected, especially when serious and contested issues are at stake; value pluralism and the diversity of views under conditions of liberty all but preclude convergence toward rational agreement. Second, the real world offers a number of models of social coordination that do not involve rational deliberation – among them, bargaining, manipulative persuasion, procedural and institutional arrangements, deference to authority, even coercion. Moralists must offer, say the realists, non question-begging justifications for excluding, as generically unacceptable, any or all of these possibilities. And third, to the extent that deliberation requires agents to be symmetrically situated, movement toward the situation in which discursive agents are equally empowered will require a range of non-deliberative political actions, including agitation and emotional story-telling. (This point is emphasized by realists who are also radical democrats, such as the late Iris Marion Young.57) This is not to say that there are no standards for public discourse. But realists insist that these standards must be drawn from within – from the inherent structure of political relationships – and not from external norms such as public reason or the ideal speech situation. Yack spells this out most fully. Because politics pursues the mutual advantage of citizens, public speakers cannot appeal to their own advantage as justification for a collective decision. N or can they justify a course of action that might bring disaster to the community on the grounds that it comports with some abstract moral norm. And finally, the structure of politics constrains the kind of character or “public face” the speaker can present. While judges are supposed to be disinterested, aspiring leaders cannot present themselves as neutral umpires among competing points of view. They must rather take a stand, propose a platform, and make people believe that they do so public-spiritedly, with the best interests of the community in mind.58 Conclusion: A Rough Balance Sheet In my judgment, four building-blocks of the realists’ view are particularly strong: the injunction to take politics seriously as a particular field of human endeavor; the proposition that civil order is the sine qua non for every other political good; the emphasis on the evaluation and comparison of institutions and regime-types, not only principles; and the call for a more complex moral and political psychology. O n the other side, there are at least three areas in which realists have for the most part failed to respond to obvious lacunae in their stance. First, it isn’t yet clear whether realism is essentially critical and cautionary, a warning against liberal utopianism, as opposed to a coherent affirmative alternative. As Stears 57 �� Iris Marion Young, “Activist Challenges to Deliberative Democracy,” in Fishkin and Laslett (eds), pp. 102–20. See also Lynn M. Sanders, “Against Deliberation,” Political Theory 25/3 (1997): 347–76. 58 �� Yack, “Rhetoric and Public Reasoning,” p. 423.


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points out, the realist program of accepting conflict while preserving order has thus far led in three quite different directions: first, to agonism, which accepts robust conflict among competing hegemonic programs, cabined by institutions and procedures and protected by enforced exclusions at the margins; second, to limited government as the effort to manage conflict by reducing the scope of binding public decisions in favor of markets and civil society; and third, to Madisonian strategies for domesticating conflict by dispersing it among factions, national institutions, and levels of federalism (545–7).59 More generally, if realists want to maintain “legitimacy” as the dividing-line between acceptable and unacceptable regimes, they will have to say more about the kinds of public claims that count as satisfying this criterion. Second, realists want to preserve the distinction between war and political association. Even the most fervent agonists draw a line dividing adversarial relations from all-out enmity – dividing, that is, conflicts they regard as a source of political health from those that risk destroying the polity altogether. As Mouffe puts it, “Conflict, in order to be accepted as legitimate, needs to take a form that does not destroy the political association. This means that some kind of common bond must exist between the parties in conflict, so that they will not treat their opponents as enemies to be eradicated ... .”60 If so, it is not enough to invoke abstract concepts such as “the adversarial”; realists will have to say more about the nature of the “common bond” that distinguishes the state of politics from the state of war. Arguing that this bond is merely imposed by the stronger parties verges on begging the question. The issue is whether politics can be understood as conflictual and hegemonic “all the way down” or, on the other hand, whether it must incorporate some idea of agreement. And finally, realists and moralists do not ultimately disagree about the nature of misguided or irrelevant utopian thought. After all, the most stringent moralist who ever wrote invoked the principle that ought implies can; if a political proposal simply cannot be realized, it loses normative force, even as a regulative ideal; all the more so if it is infeasible, not just here and now, but in the most favorable possible circumstances. In this respect, the dispute comes down to competing ways of distinguishing between what is possible and what isn’t. Many realists take the view, for example, that certain features of human psychology are fixed, at least until evolutionary forces transform the human species, and that these features restrict the range of feasible political structures. Many moralists believe either that human beings are more malleable than that or that a more favorable upbringing and social circumstances will reinforce the positive elements of human psychology while muting self-interest and aggression. While this dispute is largely empirical (in the broadest sense of the term), its theoretical consequences are profound. While it is not yet clear how we can move the issue closer to resolution, political theorists must engage it more directly than they have in some time. 59

�� Stears, “Liberalism and the Politics of Compulsion,” pp. 545–7. �� Mouffe, On the Political, p. 20; emphasis added.

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Bibliography A ristotle, The Politics, trans. T.A. Sinclair (London: Penguin Books, 1962). Bellamy, Richard, “Interview,” Morten Ebbe Juul N ielsen, Political Questions: 5 Questions on Political Philosophy (London: Automatic Press, 2007), pp. 13–28. Elkin, Stephen, Reconstructing the Commercial Republic: Constitutional Design after Madison (Chicago: U niversity of Chicago Press, 2006). G oodin, Robert, “Democratic Deliberation Within,” in James Fishkin and Peter Laslett (eds), Philosophy, Politics and Society 7: Debating Deliberative Democracy (O xford: Blackwell, 2003), pp. 54–79. G ray, John, “Agonistic Liberalism,” Philosophy and Social Policy 12/1 (1995): 111–35. H irschman, Albert, The Passions and the Interests: Political Arguments for Capitalism before its Triumph (Princeton: Princeton U niversity Press, 1977). Honig, Bonnie, Political Theory and the Displacement of Politics (Ithaca: Cornell U niversity Press, 1993). Manent, Pierre, A World beyond Politics? A Defense of the Nation-State (Princeton: Princeton U niversity Press, 2006). Mouffe, Chantal, On the Political (London: Routledge, 2005). Mutz, Diana, Hearing the Other Side: Deliberative versus Participatory Democracy (N ew York: Cambridge U niversity Press, 2006). Philp, Mark, Political Conduct (Cambridge, MA: H arvard U niversity Press, 2007). Rawls, John, A Theory of Justice (Cambridge, MA: H arvard U niversity Press, 1971). ———, Political Liberalism, paperback edn (N ew York: Columbia U niversity Press, 1996). ———, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: H arvard U niversity Press, 2001). Sanders, Lynn, “Against Deliberation,” Political Theory 25/3 (1997): 347–76. Stears, Marc, “Liberalism and the Politics of Compulsion,” British Journal of Political Science 37/3 (2007): 533–53. W illiams, Bernard, In the Beginning Was the Deed: Realism and Moralism in Political Argument (Princeton: Princeton U niversity Press, 2005). Yack, Bernard, “Rhetoric and Public Reasoning: An Aristotelian U nderstanding of Political Deliberation,” Political Theory 34/4 (2006): 417–38. Young, Iris Marion, “Activist Challenges to Deliberative Democracy,” in James Fishkin and Peter Laslett (eds), Philosophy, Politics and Society 7: Debating Deliberative Democracy (O xford: Blackwell, 2003), pp. 102–20.


Chapter 7

John Rawls: Liberalism at the Limits of Intolerance G len N ewey

1. Introduction The political ideology which upholds toleration more than any other is liberalism. Indeed, one could argue that toleration is historically the core creed of liberalism, and was central to the early modern growth of liberal political thought. But, as early as the Enlightenment, worries were voiced about toleration, from a basically liberal angle. In recent times, too, philosophical liberalism has displayed a marked ambivalence towards toleration as a political value. While many liberals remain wedded to toleration, persons who are tolerated are, by definition, disapproved of. As such, their status is lower than that of others not so treated. Accordingly, toleration is hard to square with philosophical liberals’ ideals of political neutrality and equal respect for persons. Beneath these ideals lies the basic proviso that liberals can justify the use of power only on terms which persons subject to it cannot reasonably reject it; as Rawls argues, “[i]t is unreasonable for us to use political power … to repress comprehensive views that

�� As always, I am greatly indebted to Linda H olt for reading several drafts of this chapter and providing numerous valuable suggestions for improvement both on points of detail and by clarifying the main argument. See, for example, Kant: “a prince who thus even declines to accept the presumptuous [hochmüthig] title of tolerant is himself enlightened.” An Answer to the Question: ‘What is Enlightenment?’ Political Writings 2nd edn, ed. H ans Reiss (Cambridge, Cambridge U niversity Press, 1991), p. 58. Also G oethe, “Toleranz sollte nur eine vorübergende G esinnung sein: sie muß zur Anerkennung führen. Dulden heißt beleidigen,” cited from Maximen und Reflexionen in Rainer F orst, Toleranz im Konflikt (Suhrkamp: Frankfurt AM, 2003), p. 14; and T om Paine, The Rights of Man, ed. H enry Collins (H armondsworth: Penguin, 1969), p. 107: “toleration is not the opposite of intolerance, but is the counterfeit of it.” �� For examples, see Catriona McKinnon, Toleration: A Critical Introduction (London: Routledge, 2005), p. 14; Andrew Cohen, “What Toleration Is,” Ethics 115/1 (2004): 68–95; Thomas Scanlon “The Difficulty of Tolerance,” repr. in Scanlon, The Difficulty of Tolerance (Cambridge: Cambridge U niversity Press, 2003), p. 187; G len N ewey, Virtue, Reason and Toleration: The Place of Toleration in Ethical and Political Philosophy (Edinburgh: Edinburgh U niversity Press, 1999), pp. 19ff.; Preston King, Toleration, 2nd edn (London: Frank Cass, 1998), p. 21.


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are not unreasonable. The key question, then, is whether or not those who are tolerated, and who thus experience lower status, can reasonably reject the terms on which power is exercised over them. 2. Exposition: Rawls and Toleration John Rawls engaged with toleration throughout his career. This concern is prefigured in the relatively early (1963) essay “Constitutional Liberty and the Concept of Justice,” which can be seen as an ur-text for the account he gives of toleration in A Theory of Justice. The sections on toleration play an important part in A Theory of Justice, and are retained without amendment in the second edition of Theory (1999). Political Liberalism, published over twenty years after Theory, incorporates a novel argument for toleration; this argument returns in “The Idea of Public Reason Revisited,” and in The Law of Peoples. T oleration also surfaces in the Lectures on the History of Political Philosophy which Rawls gave at H arvard from the 1950s.10 (a) A Theory of Justice Rawls’s thinking about toleration mutated over time. Throughout his career, however, he treats toleration as a corollary of his wider theory of justice, and his discussion of toleration should be understood in this light. The direct argument which Rawls gives for toleration in Theory rests chiefly on an application of his general argument for equal liberty behind the Veil of Ignorance. In the conditions of ignorance which prevail in the O riginal Position (O P), nobody can be sure that what Rawls called his or her preferred “comprehensive doctrine” will turn out to enjoy hegemony in the society which emerges. So each part in the O P will insure against oppression by other such doctrines, by opting for a freedom John Rawls, Political Liberalism, paperback edn (N ew York: Columbia U niversity Press, 1996), p. 61. Reprinted in John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press 1999), pp. 73–95. John Rawls, A Theory of Justice (O xford: O xford U niversity Press, 1972; rev. edn, 1999), §§34–5. Rawls Political Liberalism, II §2, pp. 54–8. Rawls, Collected Papers, pp. 611–12. John Rawls, The Law of Peoples; with, “The Idea of Public Reason Revisited” (Cambridge, MA: H arvard U niversity Press, 1999), II §7 pp. 59–62. 10 John Rawls, Lectures on the History of Political Philosophy, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 2007), e.g. pp. 309–10. It �� is, however, not mentioned in the Lectures on the History of Moral Philosophy, ed. Barbara H erman (Cambridge, MA: H arvard U niversity Press, 2000).

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of conscience principle, and for freedom of religious practice. As Rawls argues in §33, the parties in the O P would reason that “[t]hey cannot take chances with their liberty by permitting the dominant religious or moral doctrine to persecute or to suppress others if it wishes.”11 H ence the parties would veto any political order which imposed religious or other doctrinal uniformity, such as a confessional state.12 T his reasoning can itself be construed as supporting toleration, since it follows from granting equal liberty to all, that nobody’s freedom may be restricted merely on the grounds that it incurs the disapproval of others. This remains so even if one person’s disapproval stems from another’s intolerance.13 Rawls also presents a second, indirect argument in Theory §35 for the regime of toleration enshrined in the equal liberty principle. H e argues that the institutions of the “well-ordered society,” supported by the two principles of justice, will prove more stable than those supported by rival principles; as usual, he primarily has utilitarianism in his sights. In §35 Rawls asks whether the tolerant should tolerate the intolerant, and argues that they should do so, because of the need for stability.14 The question of tolerating the intolerant is directly related to that of the stability of a well-ordered society.… If an intolerant sect appears in a well-ordered society, the others should keep in mind the inherent stability of their institutions. The liberties of the intolerant may persuade them to a belief in freedom. This persuasion works on the psychological principle that those whose liberties are protected by and who benefit from a just constitution will, other things equal, acquire an allegiance�� to it over a period of time.… �� This is the consequence of the stability of just institutions.15

In Theory, then, Rawls claims that the institutions of justice will become selfembedding, and this is a reason to endorse their supporting principles. Institutions embodying liberty will command the allegiance not only of those who accept them from the outset, but also, eventually, of those who expressly reject them, the intolerant. Even if people are originally committed to reject the equal liberty principle – they are intolerant, by hypothesis – Rawls regards it as a “psychological principle”16 that over time they will come to have an investment in social and political institutions from which they themselves benefit.17 Rawls, A Theory of Justice, p. 207; rev. edn, p. 181. Ibid., p. 212; rev. edn, p. 186. 13 Ibid., p. 218; rev. edn, p. 191. 14 �� The concern with stability is pervasive in Theory, but also crops up in Rawls’s other writings, e.g. on war. See, for example, Rawls, Collected Papers,�� p. 570. 15 Rawls, A Theory of Justice, p. 219; rev. edn, pp. 192–3. 16 Ibid., p. 219; rev. edn, p. 192. 17 See, for example, Rawls, Collected Papers, p. 403, n. 21; and John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: H arvard U niversity Press, 11

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H e treats it as a condition of justification, and not simply an incidental bonus or pragmatic advantage, of principles of justice that they meet this requirement of stability.18 Rawls treats it as a requirement on any acceptable justification of principles of justice, that the justification motivates people who are subject to the principles to endorse them in the appropriate way. Thus, according to Rawls’s argument in Theory for tolerating the intolerant, the principles of justice become embedded by underwriting the stability of just institutions, and this itself serves to justify the principles.19 This sets up a symbiosis between stability and justification, since not merely does justification entail stability; further, only those institutions which are just will prove stable.20 Like other liberals, Rawls thinks that those subject to power can reasonably claim legitimation from those who exercise it. Institutions which meet such a demand will reliably motivate people to support them.21 (�� b) The Segue from Theory to Political Liberalism O ver the twenty years following the publication of Theory, Rawls lost faith in the arguments for toleration presented there. We can draw an understanding of this loss of faith from the historical narrative which Rawls offers to explain the growth of toleration from the early modern period onwards.22

2001), p. 196. Rawls’s �� characterization of Rousseau’s political theory in the Lectures on the History of Political Philosophy could be applied to Rawls himself: “if institutions do generate the spirit that would enact them, they will be enduring and stable.” See Rawls, Lectures on the History of Political Philosophy, p. 239. 18 Rawls, A Theory of Justice, p. 455; rev. edn, pp. 140, n.7, 398; and Rawls, Political Liberalism, p. xix. �� N ote, however, that Rawls requires only that the principles admit of sufficient, not maximal stability. See Rawls��, A Theory of Justice, p. 504; rev. edn, p. �� 441. 19 �� This would again contrast with many forms of utilitarianism, e.g. the “G overnment H ouse” utilitarianism of H enry Sidgwick in the Methods of Ethics. 20 Clearly there have to be limits to toleration, even on this view: those who attack just institutions under the flag of jihad, for instance, will be excluded from the purview of toleration. But Rawls has little to say about this side of the story. 21 Rawls, Political Liberalism, p. 388, n. 21. �� For a similar idea, see Bernard Williams’s discussion of the “Basic Legitimation Demand,” in Bernard Williams, In the Beginning was the Deed (Princeton: Princeton U niversity Press, 2005), Ch. 1. 22 �� Although Rawls confines his explanation of the shift from Theory to Political Liberalism to the academic reception of the former, it is plausible to link it to the �� move within the academy away from realism and towards post-modernism or relativism, as well as the wider growth of multiculturalism. This is no less than the claim that liberal institutions were proving to be self-disembedding, in that they fostered sedition by anti-liberals who exploited those very institutions in order to subvert them.


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Rawls contends that toleration’s emergence as a political ideal dated from the Wars of Religion of the sixteenth and seventeenth centuries.23 During these wars, Rawls argues, it became apparent that neither Catholics nor Protestants could impose their ideal – a confessionally uniform polity – on the others, and as a result the warring parties had willy-nilly to forge a political compromise, along the lines of the 1555 Augsburg formula cuius regio, eius religio. Thus the religious wars ushered in a regime of toleration as a modus vivendi in the face of inconclusive conflict.24 Toleration emerged only as a de facto regime, a least-bad alternative to wars of attrition. The regime of toleration was an attempt to draw stability from conflict. H owever, such stability may prove illusory. Rawls repeatedly complains of such regimes that their foundations are unstable because they rest not on principled agreement, but on a ramshackle accommodation wrought by power-play.25 [O ]nce we … include the views of Catholics and Protestants in the sixteenth century[,] we no longer have an overlapping consensus on the principle of toleration. At that time both faiths held that it was the duty of the ruler to uphold the true religion and to repress the spread of heresy and false doctrine. In this case the acceptance of the principle of toleration would indeed be a mere modus vivendi, because if either faith becomes dominant, the principle of toleration will no longer be followed. Stability with respect to the distribution of power no longer holds.26

In his post-Theory writings Rawls distinguishes sharply27 between toleration as a mere hole-in-corner deal, and as the result of an enduring principled commitment.28 O nly the latter agreements boast the virtue of stability. During the Enlightenment, this pragmatic compromise acquired principled support from thinkers such as Milton, Locke and Kant. At this stage the formulation of liberalism itself rested on a comprehensive doctrine, one which upheld the value of liberty (e.g. in the form of autonomy) as pre-eminent. But, as a “comprehensive doctrine,” this Enlightenment liberalism was (or is) reasonably rejectable. There 23 �� For example, see �� Rawls, Political Liberalism, p. xxvi; and Rawls, Collected Papers, p. 424. 24 Rawls, Political Liberalism, p. xli; Rawls, Collected Papers, pp. 433, 589; and Rawls, Justice as Fairness, p. 192. 25 Rawls, Political Liberalism, pp. xl–xli; Rawls, The Law of Peoples, pp. 44–5; Rawls, Collected Papers, pp. 432–3; and Rawls, Justice as Fairness, p. 192. 26 Rawls, Collected Papers, p. 433. 27 �� Though, it should be noted that Rawls also asserts that a modus vivendi may transform itself into an “overlapping consensus” when people acquire “reasonable assurance” that others will abide by the terms of social and political coexistence. See Rawls, Collected Papers, p. 445. 28 Rawls, Political Liberalism, p. 134; and Rawls, Justice as Fairness, p. 187.


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are reasonable conceptions of the good life, or “comprehensive doctrines,” which deny liberty this status.29 Because of the symbiosis between stability and justification, what may have seemed stable, because based on justified principles, may turn out not to be. This is precisely what Rawls comes to believe is the case with regard to the Enlightenment foundations for toleration. Such foundations require coercion to secure stability: “the reasonable liberalisms of Kant or Mill … require the sanctions of state power.”30 But it is also of Rawls himself that this tale of failure is told. It is not only the “comprehensive liberalisms” of Kant and Mill, but that of Theory itself, which succumb to justificatory failure. Both in the Preface to the paperback edition of Political Liberalism and in the cover blurb, Rawls notes that the grounding for Theory lies in a comprehensive doctrine – that is, a moral, religious or political worldview which other reasonable people may reasonably reject. The fact of a plurality of reasonable but incompatible comprehensive doctrines – the fact of reasonable pluralism – shows that, as used in Theory, the idea of a well-ordered society of justice as fairness is unrealistic. This is because it is inconsistent with realizing its own principles under the best of foreseeable conditions. The account of the stability of a well-ordered society is therefore also unrealistic and must be recast.31

G iven the symbiosis between stability and justification, the failure of the direct argument for toleration shows that the indirect argument fails as well. Reasonable persons can reject a justification based on equal liberty, since that justification remains rooted in “comprehensive” liberalism. So, as Rawls came to think, there is no guarantee that the institutions of liberty will stabilize themselves, in the sense that their justification will motivate those subject to them in the right way. By the same token, the fact that their stability cannot be guaranteed, even granted the psychological law, shows that the institutions are not grounded on reasons which nobody could reasonably reject. Thus, because even “the best of foreseeable conditions” fails to guarantee that the institutions of justice embed themselves, the justification of the supporting principles becomes suspect. By the same token, Rawls’s understanding of what stability requires shifts, in line with his shifting view of what justifies the basic structure of society. The “psychological principle” no longer suffices to underwrite stability. The interpretation either of liberty itself which supports the basic structure, or of its status in relation to other values, may reasonably be rejected.

Rawls, Political Liberalism, p. 388, n. 21. Rawls, Political Liberalism, p. 37; see also, pp. 74, 145, 196ff; Rawls, Collected Papers, pp. 427, 464; and Rawls, Lectures on the History of Political Philosophy, p. 313. 31 Rawls, Political Liberalism, p. xix. 29 30


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Rawls’s critical historical teleology, like H egel’s, culminates in the very theory for which it provides the explanatory framework. H e locates the original justification for toleration within a “comprehensive” rather than “political” justification of liberalism. Since any comprehensive doctrine can be reasonably rejected, as can any justification based on such a doctrine, the comprehensive liberalisms of Kant, Mill and Theory fail to ensure stability. The underlying premise is that people will not commit to institutions whose justification they may reasonably reject. Rawls does not view the demand for stability as a purely pragmatic requirement. “Stability” should be interpreted to mean “stability for the right reasons.”32 T he fact that justice as fairness’s account of society proves “unrealistic” does not stem from a failure to heed the realities of power. A deal which rests on a fleeting balance of forces, a modus vivendi, would be “political in the wrong way.”33 Instead, Rawls aims to place justification on a firmly moral footing. As he explains, the recasting involves transforming “the idea of the person as having moral personality with the full capacity of moral agency” into “that of the citizen.”34 In particular, the ideal of autonomy, which plays a central role in moral theories such as those of J.S. Mill and Kant, “cannot be part of a political conception of justice.”35 (c) Political Liberalism The problem, as Rawls now sees it, is that Theory failed to give a “political” justification for justice as fairness. H e still thinks that the theory in its essentials is right, but his understanding of its justification has changed. “Transforming justice as fairness into a political conception of justice requires reformulating as political conceptions the component ideas that make up the comprehensive doctrine of justice as fairness.”36 Any justification of liberal institutions, such as Rawls’s principles of justice, must be acceptable – not reasonably rejectable – by those subject to them. The justification of any institutions founded on a specific comprehensive doctrine will necessarily be reasonably rejectable. A “political” justification remedies this problem. While it stands outside any particular comprehensive doctrine itself, it can be affirmed from within any doctrine which is “reasonable.”37 H ow this applies to toleration becomes clear in Lecture II of Political Liberalism (pp. 52–60). In that Lecture Rawls traces the reasonable rejectability of the comprehensive doctrines to the “burdens of judgment ”: namely, factors which mean that reason often cannot supply a definitive answer to questions of normative 32 Ibid.,�� p. xxxix, n. 5; see also, Rawls, The Law of Peoples, p. 44. �� Rawls takes this notion directly from Kant. See Rawls, Lectures on the History of Moral Philosophy, p. 187. 33 Rawls, Political Liberalism, p. xlvii; see also, for example, Rawls, Justice as Fairness, p. 189. 34 Rawls, Political Liberalism, p. xlv. 35 �� Ibid�. 36 Ibid., p. xliii. 37 Ibid., p. 60.


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belief. The burdens include the complexity of concepts, experiential variations between persons, value-pluralism, differential weightings of matters relevant to making judgment s, the ambiguity of evidence, and so on.38 Under conditions of liberty – when people’s beliefs are not subject to external coercion by the state – what results is “reasonable pluralism”: there is an indefinite number of severally reasonable comprehensive doctrines held by individuals in society.39 Rawls sets himself the task of laying a foundation not just for toleration, but for the theory of justice generally, by catering for reasonable pluralism in society. Accordingly, the philosophical argument for toleration must not itself rely on any specific comprehensive doctrine.40 The fact that it espouses no comprehensive doctrine, while appealing to a broad spectrum of reasonable individuals who do, is advertised as one of the main arguments in favour of political liberalism generally.41 In this, the reasoning which justifies toleration, as a central part of political liberalism, is held to improve on the arguments given by Kant and Mill and indeed Theory itself.42 At first sight the burdens pose a problem for stability, because it looks as if liberty, when combined with the burdens, sets people off on divergent paths rather than leading them to converge. Rawls’s answer is to try to turn the notion of the reasonable to his advantage. It can first explain how people initially come to divergent opinions about the good life, etc – the subject-matter of the comprehensive doctrines. But it can also show people not only that their own comprehensive doctrine is reasonable, but also that other people reasonably hold differing views about the big questions. Reasonable people, that is, acknowledge the existence of reasonable pluralism.43 S o the initial appearance of disagreement is replaced by a wider reasonable agreement, an “overlapping consensus,” on political principles which will arbitrate between us, given that we hold different reasonable comprehensive doctrines.44

Ibid., pp. 56–7; see also, Rawls, The Law of Peoples, p. 16, n. 8; Rawls, Collected Papers, pp. 475–7; Rawls, Justice as Fairness, pp. 35–6; and Rawls, Lectures on the History of Political Philosophy, p. 135. 39 Rawls, Political Liberalism, p. xliii; and Rawls, The Law of Peoples, pp. 11–12, 16. 40 Rawls, Collected Papers, p. 395. 41 Ibid., pp. 389–90. 42 Rawls, Political Liberalism, p. xl, p. 388, n. 21. These arguments co-originate with liberalism, seen as a secular comprehensive doctrine opposed to long-established religious faiths. See Rawls, Political Liberalism, pp. 37, 78, 199; and Rawls, Collected Papers, p. 446. 43 Rawls, Political Liberalism, pp. 60–61. 44 �� Is it the doctrines themselves which are reasonable, or adherence to them? Presumably any reasonable doctrine can be held reasonably (though perhaps it is also possible to hold it unreasonably). Can an unreasonable doctrine also be held on reasonable grounds? The way these permutations come out will affect the make-up of the overlapping consensus, but Rawls gives little guidance on them. 38


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As a result, reasonableness has turned its coat. From being a force for divergence, it discloses itself now as a force for convergence in society, at the level of the political conception of justice. As Rawls says, the principle chosen in the O P would be agreement on “a form of toleration and freedom of thought.”45 I realize that you reasonably disagree with me; you realize that I reasonably disagree with you; therefore we have to agree on a set of “political” arrangements which cater for the fact of reasonable pluralism. 3. Similarities between Theory and Political Liberalism N otwithstanding the superficial differences between them, there are some striking parallels between the treatment of toleration in Theory and in Political Liberalism. It is not surprising, therefore, that they invite similar objections. (a) empirical arguments Both theories contain a claim about how and why people would come to support just institutions and thereby be drawn into acting tolerantly. Theory explicitly appeals to empirical motivations, as enshrined in the third psychological “law,”46 to explain how the stability requirement is satisfied, so that the principles of justice become self-embedding. The requirement is partly met by the fact that people who initially reject the principles come to accept them as a consequence of the operation of just institutions, specifically those of liberty. H ere Rawls links the justification to what is nonetheless a conceptually distinct item, namely the motivations of those who live under just institutions. H e treats it as an empirical question whether, as a matter of moral psychology, these people will come to respect the institutions of liberty by benefiting from them.47 In Political Liberalism, Rawls also appeals to what appears to be an empirical claim. U nder reasonable pluralism, people will be disposed to accept a just order including – centrally for toleration – a regime in which reasonable difference is catered for by the usual apparatus of liberal institutions and freedoms.48 T he process of acceptance will be “deepened” when people realise that “there are significant intrinsic goods internal to political life” which means that in cases of conflict, “the political conception has a better chance of sustaining itself.”49 A

Rawls, Political Liberalism, p. 62. Rawls, A Theory of Justice, p. 491; rev. edn, pp. 429–30. 47 Ibid., p. 219; rev. edn, pp. 192–3. In Rawls’s view only those reared in accordance with the first two psychological “laws” in Theory §75 are likely to react in the way he envisages to the working of just institutions. 48 Rawls, Political Liberalism, p. 192. 49 Ibid., pp. 208–9. 45 46


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necessary condition50 for solving the stability problem posed by the exercise of reason in conditions of liberty is then met. Again, Rawls relies on a claim about how reasonable people will be disposed to act in the given conditions. This claim rests in turn on the wider characterization of persons as reasonable, in that they are prepared to propose and abide by fair terms of social cooperation.51 (b) analytical arguments There is a second level of parallelism between the arguments of Theory and those of Political Liberalism. The purely empirical claims about how people will behave, when under the sway of just institutions, overlay an analytical normative argument in each case. In the case of Theory, the argument is based on the justification of the two principles of justice through the modeling device of the O P. The argument from choice under uncertainty which issues in the principles, including that of maximal universal equal liberty, gains its plausibility from the fact that the choice situation models basic normative intuitions, e.g. about liberty. It is as an outworking of these intuitions that the content of the principles is meant to gain plausibility. Meanwhile, in Political Liberalism, instead of liberty, the normative argument devolves on the notion of the reasonable. In keeping with the proviso that institutions be such that nobody can reasonably reject them, Rawls bases his argument for toleration on the fact that reasonable people would permit others similarly minded to promulgate and practise their comprehensive doctrines, associate around them, and so forth. This is an application of the fundamental normative idea of reciprocity, as embodied in a scheme of social cooperation. Toleration follows as a matter of acting reasonably in respect of others. (c) empirical objections The purely empirical arguments of Theory and of Political Liberalism are open to an obvious objection. It is unlikely that people will act in the way that these arguments state. In the case of the indirect argument of Theory for toleration, there is no guarantee that people will come over time to endorse the institutions of liberty from which they benefit. N o doubt some will, but many are likely not to. Some are liable, indeed, to exploit their liberties to foment the downfall of these same institutions, as often bemoaned by conservative critics of liberalism.52 T he regime of Political Liberalism lies open to empirical objection too, on similar grounds to Theory. If individuals’ inclination to act tolerantly is treated by the argument as being empirically independent of their reasonableness, there is 50

Ibid., p. 38. Ibid., p. 49. 52 Rawls acknowledges the possibility that in adverse conditions the institutions will prove insufficiently robust for stability (Rawls, A Theory of Justice, �� pp. 219–20; r�� ev. edn, p. 193). This justifies intolerance of the intolerant. 51


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again the prospect that they will not do what the argument says they will agree to do insofar as they are reasonable. Then again, the free exercise of reason itself may yield different and incompatible conclusions about what to do at the public level. It may also serve to strengthen existing attachments to comprehensive doctrines rather than to the political conception. That is, the empirical problem of stability will re-emerge, this time as a result of the fact that the requisite actions are underdetermined by the reasonable, rather than by liberty. (d) analytical objections That these objections can be made so easily suggests, of course, that Rawls does not intend the arguments for toleration to be solely or mainly empirical. H owever, the argument from liberty in Theory invites an analytical as well as an empirical objection, which stems from the double-edged nature of liberty as a value. It is in the nature of liberty that it leaves scope to individuals to decide how to act. In the well-ordered society, it is a foreseeable result of the operation of liberty that they may not much care for the institutions of liberty despite the fact that they benefit from them.53 Meanwhile, a similar objection can be made against the argument from reason able pluralism to toleration in Political Liberalism. In this case, the basic problem with Rawls’s argument for the prevalence of reasonable disagreement54 is that the burdens themselves tend to undermine the reasonableness of any disagreements they may explain.55 Suppose there is some question of action or policy upon which normative complexity bears. Then you and I may disagree about the best thing to do. O n Rawls’s account of the burdens, if normative complexity explains this situation, it can explain that the disagreement is a reasonable one. But insofar as normative complexity, as one of the burdens, really does explain our disagreement, it shows us as unreasonable in holding to our particular views. For normative complexity 53

�� Rawls’s view of sub-ideal motivation is in some ways reminiscent of Christian theodicy. The latter tries to explain how a morally optimal world can consist with the fact of sin, as a foreseeable result of G od’s grant of free will to human beings. Theologians have faced the fact that this means accepting that acts which, taken by themselves, are suboptimal, belong in the optimal world, as a result of humans’ exercising their freedom. It would seem panglossian to assume that human beings would nonetheless always freely act for the best. By contrast, Rawls does seem to assume that, in general, reasonable persons will freely act reasonably. This broaches the wider question of how far sub-ideal (in Kantian terms, heteronomous) action can be seen as free given that freedom is criterial of moral agency. 54 �� I do not claim that no disagreement can ever be reasonable; only that the burdens themselves fail to account for such disagreements. 55 �� I set out this argument in detail in “Toleration as Sedition,” in Matt Matravers & Susan Mendus (eds), Toleration Revisited (forthcoming).

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shows you that I am reasonable in holding not-p, just as it shows me that you are reasonable in believing p. Since p and not-p are inconsistent, and inferences drawn using the law of non-contradiction are presumably reasonable, then each of us, to the extent that we are reasonable, should abandon or qualify our original beliefs.56 The burdens therefore issue not in reasonable disagreement, but in epochē, the ancient sceptics’ suspension of judgment in the face of apparently compelling arguments on either side of a question. The strain in Rawls’s position comes out in the following passage on “The Powers of Citizens and Their Representatives”: It is not in general unreasonable to affirm any one of a number of reasonable comprehensive doctrines. We recognise that our own doctrine has, and can have, for people generally, no special claims on them beyond their view of its merits. O thers who affirm doctrines different from ours are, we grant, reasonable also, and certainly not unreasonable. Since there are many reasonable doctrines, the idea of the reasonable does not require us, or others, to believe any specific reasonable doctrine, though we may do so. When we take the step beyond recognising the reasonableness of a doctrine and affirm our belief in it, we are not being unreasonable.57

The person who takes this final step is, by hypothesis, not unreasonable. Would it be unreasonable to affirm some other reasonable comprehensive doctrine at the same time? If they do not contradict each other, they can simply be conjoined, and the situation is not really one of reasonable pluralism. If they do, the view that they cannot both be affirmed presumably rests on the law of non-contradiction. But that seems to demand that of two contradictory doctrines, any grounds which support rational belief in the one are to that extent also grounds for withholding rational belief from the other. If what Rawls has said about the burdens is right, then acceptance of any comprehensive doctrine is under-determined by reason, and so Rawls’s last step does seem unreasonable.58 56 �� To be consistent, Rawls needs to say not only that belief that the burdens explain reasonable disagreement is itself reasonable, but also that the rejection of this belief is unreasonable. But this belief – an eminently disputable philosophical claim, and hence (Rawls, Political Liberalism, 57, n.10) one which Rawls would seek to avoid – does not seem so clearly established that its negation would be unreasonable, especially given the broad scope which the notion of the reasonable enjoys in Political Liberalism. O n this latter point, see the valuable dissection of Rawls’s account of reasonableness in Leif Wenar, “Political Liberalism: An Internal Critique,” Ethics 106/1 (1996): 32–62. 57 Rawls, Political Liberalism, p. 60. 58 �� The idea that reasonable disagreement is possible rests partly on what is a genuine possibility, namely, that someone can have reasons to hold a belief which is nonetheless false – in these circumstances, as we say, we “know where he’s coming from.” We know where the Ptolemaic geocentrists were coming from, for example. But Rawls needs something


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The argument from the burdens of judgment to toleration, accordingly, faces a fork. O n the one hand, the burdens of judgment undermine the reasonableness of the comprehensive doctrines, as we have just seen, so that the doctrines cannot be used to justify the basic structure.59 Instead, the burdens tell us not to hold any comprehensive doctrine, since each such doctrine will be contradicted by others which are not demonstrably less reasonable. O r, on the other hand, the burdens nonetheless permit individuals to regard their own doctrines as more reasonable than those of their rivals. As a result, the structure need not embody an overlapping consensus of comprehensive doctrines. Rather the basic structure will be affirmed from within a comprehensive doctrine which is itself affirmed against others. As with liberty, reasonableness will not guarantee the cohesion needed to impel people to endorse the basic structure on the terms which Rawls requires, even to the extent that people are reasonable. 4. The Stipulative Turn We saw earlier that Rawls’s passage from Theory to Political Liberalism both as regards the general structure of justification, and the argument for toleration in particular, was shaped by his concern with stability. We have also just seen that the empirical problems in guaranteeing stability result from the practical indeterminacy of the analytical concepts of liberty and the reasonable. Liberty flips from being a mainstay of the well-ordered society in Theory, to posing a threat to its cohesion in Political Liberalism, precisely because the conditions of liberty give people the scope to form their own judgment s and act on them. In Political Liberalism, the notion of the reasonable (under these same conditions of liberty) is put to the service of cohesion, despite the fact that, as Rawls acknowledges, the foreseeable result of its free exercise is diversity in judgment s. As a consequence of the liberty flip, reasonableness has to flip back from being a force for dissensus to promoting cohesion.60 But what can flip one way can also flip the other way: Rawls, one might say, needs to find a way of stabilizing the free exercise of reason. T his need prompts what I call the stipulative turn. At first, this, coupled with the liberty flip, might make it look as if there is a fundamental reorientation between the accounts of toleration in Theory and Political Liberalism. In Theory Rawls, by arguing that just institutions will instil allegiance among those initially hostile or indifferent to them, makes an empirical claim. Motivations remain stronger than this: that the geocentrists had their reasons does not make geocentric and heliocentric theories of planetary motion a case of “reasonable pluralism.” See G erald G aus, Justificatory Liberalism: An Essay on Epistemology and Political Theory (O xford: O xford U niversity Press, 1996), pp. 51–2. 59 For incisive discussion of related issues, see G aus, Justificatory Liberalism, pp. 45ff. 60 �� It is plausible to think that the labile nature of liberty and reasonableness are two sides of the same coin. The problems arise for stability because of the free exercise of reason.

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independent of the justification offered for toleration, and for the theory of justice in general.61 In Political Liberalism the claim that reasonable persons will support the overlapping consensus no longer looks very empirical – the claim now seems to be that a justified theory is internally motivating, at least pro tanto. It is not a matter of deciding on the principles of justice first, and then asking whether or how people will in fact come to support them. Instead, Rawls in effect picks out the class of reasonable people by reference to how they are motivated. Such people have “conception-dependent desires,” i.e. desires whose content is itself fixed by their prior commitment to certain moral or political ideals.62 They are ready to accept a just system of social cooperation, and to abide by the fundamental norm of reciprocity.63 N onetheless, traces of this position can in fact already be found in Theory. “[A] conception of justice,” Rawls contends there, “is seriously defective if the principles of moral psychology are such that it fails to engender in human beings the requisite desire to act on it.”64 The turn is also implicit in the modeling device of the O P, by which moral judgments are universalized, since the standpoint of any one representative individual is the standpoint of each. This tends to flatten out empirical differences, such as those of moral motivation. Moreover, as we have seen, the fact that the indirect argument for toleration collapses back into the direct one in effect makes the empirical claim dependent on an analytical normative one. A conception of justice will enjoy stability in Rawls’s sense only if it leads people to form beliefs and act for the right reasons. Contrapositively, the failure of an apparently valid justification to do so indicates that the justification has failed. Stability plays a part in justification only because the notion of stability has normative content. It matters not because it is an empirical fact independent of the justification itself, but because Rawls is interested in “stability for the right reasons” – in other words, the justification is already built into the operative notion of stability. The problem which then emerged with the Theory version, as Rawls saw it, was that reasonable people need not accept the justification given therein for the basic structure. But Rawls’s object is not to cater to non-liberals; it is to cater to those whose dispositions are already, at least in nuce, politically liberal. So the requirement of stability, and its dependence in Theory on the third psychological 61 �� For an analysis of the internalist version of this linkage in modern political philosophy, see my After Politics: The Rejection of Politics in Modern Liberal Philosophy (London: Palgrave, 2001), Ch. 5. For further discussion of moral internalism, see e.g. Stephen Darwall, The British Moralists and the Internal ‘Ought’ (Cambridge: Cambridge U niversity Press, 1996), and Jonathan Dancy, Moral Reasons (O xford: Blackwell, 1993). For an externalist view, see D.O . Brink, Moral Realism and the Foundations of Ethics (Cambridge: Cambridge U niversity Press, 1989). 62 Rawls, Political Liberalism, pp. 83–5. 63 Ibid., pp. 49–50. 64 Rawls, A Theory of Justice, �� p. 455; r�� ev. edn, p. 398.


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law, does not in fact introduce an independent empirical standard against which the justification is to be appraised. Political Liberalism simply brings out the normative content of stability latent in Theory. There is thus an underlying similitude in the motivational assumptions of Theory and Political Liberalism. In each case, Rawls holds that a justification should be acceptable65 to those living under the basic structure insofar as they are reasonable.66 Then, by selecting those with the right dispositions, a contrapositive claim can be brought to the theory’s defence: given a valid justification, reasonable people will have the appropriate dispositions, so people who lack them cannot be reasonable. 5. Motivation and Justification It is an under-examined question in political philosophy, how far motivation acts as an independent constraint on justification.67 Individuals’ motivations to act on the principles set out by a given theory may be treated as an independent empirical item.68 Then we can distinguish two questions: (i) whether the justification succeeds at a theoretical level; and (ii) whether, empirically, it contains within itself the resources to stabilize a society upholding the theory’s principles, by adequately motivating individuals to act in line with them. The answer to this second question may or may not be thought to bear on the question of justification. If it does, it will really matter for the justification of the principles whether people 65

�� O f course, the notion of acceptability for Rawls has normative content as well, to the extent that acceptability cannot be based on deficiencies of coercive force or knowledge. S ee Rawls, Collected Papers, p. 578. 66 Rawls, A Theory of Justice, p. 580; �� r�� ev. edn, p. 508; Rawls, Political Liberalism, p. 390; see also, Rawls, A Theory of Justice, rev. edn, p. 578. 67 �� I examine this question in more detail in After Politics, Ch. 5. 68 The nub of the issue lies in whether or not theory accepts the facticity of motivation, as a datum with which the outputs of the theory have to contend, and whether or not the answer to this question is seen as significant for the project of justification. The possibilities may be set out in the table below. Table 7.1: Justification �� of Agent-Motivation

A. Justification independent of agent-motivation:

(i) but its generating an appropriate motivation does impose a justificatory constraint (ii) its generating an appropriate motivation doesn’t impose any justificatory constraint

B. Justification not independent of agent-motivation.

(i) motivations track the favored justification (ii) what is justifiable depends on how (or whether) agents can be appropriately motivated


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are independently motivated to act on them. But, as often happens, the theorist may say, in effect, that if individuals’ motives fail to track the principles, then so much the worse for the motives. The alternative to viewing motivation and justification as independent is to conflate them. The direction of conflation will depend on further assumptions. Someone could argue that motivation must itself track justification, in the sense that motivations will not impose an independent check on justification, because only justifiable motives will enter the picture. O ther things equal, a presented justification for some set of political arrangements, such as a regime of toleration, fails if it does not motivate persons, insofar as they are reasonable, to adhere to it. From the opposite direction, by contrast, it might be argued that the fact that a theory can motivate the parties furnishes a genuinely independent standard of justification. Indeed this could be thought of as an advantage enjoyed by some moral or political theories over others, as Rawls himself suggests.69 The question of the linkage between moral knowledge and motivation prompts one of two stipulative maneuvers. The first is the Platonic thesis that knowledge of justice entails a motivation to act so as to promote it, so that the unjust person must act in ignorance. The second, by contrast, holds that if a person’s motivations fail to track justice, so much the worse for the motivation. Either way, the effect is to sideline empirical motivations, either by expressly treating them as irrelevant or by imposing a normative standard which relevant motivation has to meet. My suggestion has been that Rawls takes a stipulative turn in his theorizing about justification generally, and about toleration in particular. Despite initial appearances, the motivational basis for stability does not impose an independent constraint on justification. As Rawls says, writing about the notion of the reasonable, “we always work at first within ideal theory.”70 The scope of the stability constraint is tacitly limited in Theory, via the notion of moral personality71 and explicitly via the first moral power and the fundamental demand of reciprocity in Political Liberalism,72 to those who have appropriate motivations. Rawls in fact adopts both of the stipulative maneuvers just described: the scope of the theory does not extend to those lacking the right motivations, and by the same token those to whom the justification is presented are, ipso facto, motivated to act on it – that is, to stabilize its fundamental institutions. The stipulative turn offers one solution to the problems of empirical motivation described earlier. There is indeed a question about the theory’s treatment of those who disagree with its principles and institutions, in word or deed. But it is not adequately answered by extruding from the facts of political contention a notion of disagreement which has built into it a ready-made motivation to agree. 69

71 72 70

Rawls, A Theory of Justice, p. 454; r�� ev. edn, p. 398. Rawls, Political Liberalism, p. 55. Rawls, A Theory of Justice, p. 12; r�� ev. edn, p. 11. Rawls, Political Liberalism, p. 16, p. 19, pp. 49–50.


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6. Toleration as “Political in the Wrong Way” In his discussion of alternatives to political liberalism, which I have already cited, Rawls repeatedly describes a modus vivendi as “political in the wrong way.”73 T he phrase is not entirely perspicuous, but Rawls seems to mean that a compromise wrought in the face of imbalances of power would, while exhibiting a familiar feature of political deal-making, be morally unacceptable. The implicit contrast, familiar from Kant,74 is between politics as mere power-play and politics as an instrument for the attainment of moral ends. For Rawls, the “political” aspect of political liberalism consists in the use of public reasoning to justify outcomes in such a way that those subject to them must accept them purely by the free exercise of reason. H owever, it is difficult to avoid the suspicion that Rawls exaggerates the scope for political dispute in the well-ordered society, while ignoring the ample scope which remains outside it. For example, he writes in Theory, discussing the scope for civil disobedience, “there can in fact be considerable differences in citizens’ conceptions of justice provided that these conceptions lead to similar political judgments. And this is possible, since different premises can yield the same conclusion.”75 H ere, then, Rawls claims that the theory leaves space for “considerable” differences. But these disagreements “lead to similar political judgment s.” The possibility of irreducible political disagreement is ruled out, where different conclusions issue from different – or even from the same – premises. This is made conceptually impossible by the definition of the “political” as a domain of reasonable agreement. In the immediate sequel to this passage Rawls goes on to remark that “[t]he intolerant can be viewed as free-riders, as persons who seek the advantages of just institutions while not doing their share to uphold them.”76 W hat this ignores, however, is the possibility that those who dissent from the basic institutions do so not simply on egoistic grounds, but on a point of principle. Yet principled disagreement seems an essential part of toleration, at least when toleration becomes politically contested. The assumption, again, is that a monopoly of principle is held by the institutions and outcomes of political liberalism.77 Ibid., p. xlvii; see also, pp. 40, 142; also Rawls, Justice as Fairness, p. 189. �� See e.g. Immanuel Kant, “O n the Relationship of Theory to Practice in Political Right” and “Perpetual Peace: a Philosophical Sketch,” Appendix, both in Reiss (ed.), Kant: Political Writings. 75 Rawls, A Theory of Justice, pp. 387–8; r�� ev. edn, p. 340 – emphasis added. 76 Ibid., p. 388; rev. edn, p. 340. 77 Rawls’s discussion of civil disobedience, and indeed of “partial compliance” theory generally (Rawls, A Theory of Justice, pp. 246–7; r�� ev. edn, pp. 216–17), proceeds on the assumption that political realities fail only because institutions and political outcomes fail to match up to the theory, not because there was room for principled disagreement at the political level. 73

74

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There is a larger problem. The notion of the reasonable itself faces meltdown in the presence of the burdens of judgment . For the burdens apply as much to judgment s about the reasonable as to anything else and will license reasonable disagreement about what is reasonable.78 Then the attempt to forestall disputes over the basic structure by appeal to a consensual account of the reasonable will fail. Reasonable disagreement about the reasonable proves inimical to Rawls’s political construction, since the call to base political design on an “overlapping consensus” cannot yield a unique solution.79 N onetheless, as noted, Rawls goes on to base his argument for toleration directly on an appeal to the burdens.80 If my critique of the burdens is correct, this argument for toleration rests, as we have seen, not on reasonable disagreement, but on skepticism. The argument from skepticism to toleration encounters familiar problems, such as the fact that intolerance need not rest on controversial truthclaims, as in balance-of-risk arguments for public security. Some versions of the argument make such claims themselves.81 The most that even the reasonable disagreement thesis shows is that intolerance cannot be justified, insofar as we attend only to the beliefs or comprehensive doctrines which reasonably disagree with each other. But intolerant policies may rest on reasons other than those which support the doctrines themselves, even raison d’état. My main concern, however, is less with the success of Rawls’s case for toleration than with its wider theoretical rationale. H e needs the reasonable to do two opposing jobs. First he has to show that reason vindicates diversity in comprehensive doctrines, as the “fact of reasonable pluralism.” Any reasonable doctrine can command the assent of a reasonable person at the private level. This reflects the deep motivational hold which comprehensive doctrines exert over their adherents, and so is needed in order to keep people on board as parties to the O verlapping Consensus: they are “crucial in providing a deep and enduring basis for its social unity.”82 Second, Rawls has to show that the burdens of judgment , to which public reason is beholden, rule out the affirmation of any one such doctrine at the political level.83 This conception of public reason rests on a conception of the conditions in which the two “moral powers” of citizens must be exercised. Because “the 78 �� It can be doubted whether the burdens permit us to continue talking about the reasonable at all, in relation to any specific comprehensive doctrine. For all doctrines are reasonably rejectable. Then, for any doctrine, any reasons which can be cited in its support can be countered by the reasons for which it can be rejected. 79 �� O n this point see John H orton, “Reasonable Disagreement” (unpublished paper). 80 Rawls, Political Liberalism, p. 61. 81 �� I have criticized the argument for toleration from skepticism elsewhere. See, for example, my Virtue, Reason and Toleration, pp. 127–30. 82 Rawls, Political Liberalism, p. 390. 83 These standards, indeed, make it unreasonable to hold them even at the private level, since they apply to cognitive rationality generally.


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reasonable is public,”84 it limits, in the name of social cooperation, individuals’ freedom of action, including what they can affirm in public justification.85 Private convictions fail to justify public imposition, since individuals cannot simply appeal to their own beliefs in persuading others to cooperate. The argument from the burdens of judgment to reasonable pluralism is meant to blunt the divisiveness of doctrinal zeal. But the holders of the doctrines may stick to their convictions regardless. They may or may not see the attainment of a stable and reciprocal basis for social cooperation as more important than keeping faith with their beliefs, if it comes to a choice. It clearly loads the dice – a move which the symbiosis of justification and stability invites – to pronounce a consensus of doctrines as justified because it pulls in those who are reasonable, and then judge the adherents of those doctrines reasonable or not by their inclination to back it. With regard to toleration, Rawls’s general approach needs to eschew mere force majeure in order to avoid being political “in the wrong way”; in this context “mere” means “unaided by appeals to what those subject to power can reasonably accept.” In Theory Rawls accepts that some people would not accept the justification of toleration given there, and that they would still have to be dealt with. To this extent the world of Theory is still rooted in the world of empirical politics. The question is “What is an appropriate political response to the existence of nonliberals?” and Rawls’s answer to that question is a core part of the theory. As we saw, however, he came to think that the argument for toleration in Theory failed to meet the reasonable acceptability demand. H is strategy thereafter is to widen the ambit of justification to draw in those who could reasonably reject comprehensive liberalism.86 Rawls broadens out the foundations of the basic structure to comply with the stability requirement in making the move from Theory to Political Liberalism. But the result is no longer a theory of toleration – or at least it becomes a quite different theory of toleration during the transit from a “comprehensive” to a “political” foundation for the principles. U nlike Theory, Political Liberalism contains no Rawls, Political Liberalism, p. 53. �� It is a further question, whether or not the maintenance of public reason requires the censorship of speech which makes political arguments from within particular comprehensive doctrines. Rawls could hold, not that such speech should be censored, but that as the expression of a specific (i.e. reasonably rejectable) doctrine, it would not count as making a political argument. 86 A contrasting approach accepts that the circumstances of political toleration exclude this agreement. There is entrenched disagreement over fundamentals between people who are not motivated to act on liberal precepts. Theory still tries to do this, through its addressing the toleration of the tolerant. But its subject-matter has changed fundamentally when we ask, as Rawls does, what basis there is for toleration among those who reasonably agreed. It has moved from addressing the empirical world to ideal theory. In The Law of Peoples, Rawls seeks to explain international toleration as “the second part of ideal theory” (Rawls, The Law of Peoples, p. 5), before discussing two kinds of “nonideal theory,” relating to outlaw states and “burdened” (resource-impoverished) societies. 84 85

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section on “Tolerating the Intolerant.” N or does The Law of Peoples.87 It seems there is no longer need for such a discussion. The substantive reasonableness – the liberalism – of all participants is now assumed.88 In broadening the foundations by allowing for an overlapping consensus of reasonable comprehensive doctrines, dissenters are either brought into the construction or ignored. This is a move shared by many recent liberal treatments of toleration. O n the one side, the liberal egalitarian moralism of theorists such as G utmann and Thompson treats the very idea of toleration with suspicion.89 Their grounds for doing so are noticeably similar to those held by Enlightenment thinkers such as G oethe, Paine and indeed Kant.90 Their fundamental objection to toleration is that it both presupposes and fosters inequality, as a consolatory bone tossed by the mighty to the weak or humble. Toleration, as permission on sufferance, serves only to prolong the latter’s subordination. Meanwhile, from the other side, G aleotti’s notion of toleration as “recognition” – only superficially different from G utmann’s – meets the Enlightenment worry head-on, by relieving toleration of its stigma and stretching it to encompass full civic equality.91 By confining toleration to reasonable people, Rawls salvages civic equality while losing sight of toleration’s political rationale. H is theory of toleration aims to tame disagreement within the circle of reasonable people, rather than to referee its members’ disputes with intolerant outsiders. The justification for doing so rests on Rawls’s reasonably contestable account of the reasonable. This moralizes psychology, still treated as empirical in Theory. A s the title of Political Liberalism’s Lecture II §8 indicates, moral psychology is “philosophical not psychological.”92 This stipulative moral psychology ensures that those whose agreement figures into the overlapping consensus have dispositions shaped to fit the justification.93 All this leaves the politics of toleration largely untouched. The political agenda is in part determined by failure to agree, including the failure to agree about what 87 �� In Law of Peoples, the discussion of toleration confines itself to “decent” societies, which practice toleration within the constraints imposed by hierarchy. See Rawls, The Law of Peoples, pp. 59ff. 88 To be sure, Law of Peoples addresses the existence of non-liberal peoples, exemplified by the fictional people of “Kazanistan” (Rawls, The Law of Peoples,�� §9.3). But Rawls’s characterization of these societies as “decent” is also idealized. 89 �� See Amy G utmann and Dennis Thompson, Deliberative Democracy and Disagreement (Cambridge, MA: Belknap Press, 1996), p. 62: “mere toleration … locks into place the moral divisions in society and makes collective moral progress far more difficult.” 90 �� See references cited in n.1 above. 91 �� Anna Elisabetta G aleotti, Toleration as Recognition (Cambridge: Cambridge U niversity Press, 2003). 92 Rawls, Political Liberalism, p. 86. 93 �� It is tempting to observe that Rawls’s non-psychological moral psychology underscores his non-political political liberalism.


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should be tolerated. What motivates political dispute cannot, therefore be factored out without remainder by an appeal to the reasonable. The question is whether people can concert sufficient power to make their views politically significant; whether or not they are acting reasonably often has little bearing on that question. Matters of political contention are either not open to reasonable agreement at all, or else whatever should be reasonably agreed fails to motivate the political players; these are the circumstances of political toleration. In forestalling them, politics itself has been by-passed.94 7. Conclusion As we have seen, the quest for stability pervades Rawls’s writings on toleration. But there is reason to think that this quest is misconceived. The failure to address the ineliminable fact of instability is endemic to Theory and Rawls’s post-Theory writings. Instability is also endemic to the world we inhabit. The lasting shadow cast by political Platonism consists in thinking that the problems of sub-ideal motivation can be avoided by inhabiting a world of stasis from which the vagaries of political life have been banished. The strains show in the mutinous behavior within the theory of key concepts such as liberty and reasonableness. Theorists have sought to forge a world stabilized by the banishing of political dispute. But, as in that realm of ultimate stability, the Platonic republic founded on perpetual deceit,95 instability is intrinsic not just to our world, but to theorists’ imaginings. We saw in the Introduction to this chapter the problems posed by liberals’ commitment both to toleration and to equal status. Rawls responds by confining toleration to those deemed co-equal, as reasonable believers. What that leaves out is when and how to tolerate those whom the category of the reasonable excludes – precisely the question raised by the circumstances of toleration. Bibliography Brink, D.O ., Moral Realism and the Foundations of Ethics (Cambridge: Cambridge U niversity Press, 1989). Cohen, Andrew, “What Toleration Is,” Ethics 115/1 (2004): 68–95. Dancy, Jonathan, Moral Reasons (O xford: Blackwell, 1993). Darwall, Stephen, The British Moralists and the Internal ‘Ought’ (Cambridge: Cambridge U niversity Press, 1996). F orst, Rainer, Toleranz im Konflikt (Suhrkamp: Frankfurt AM, 2003).

�� For more on this argument, see my After Politics. Rawls himself abjures a Platonic republic on precisely these grounds. See Rawls, A Theory of Justice, �� p. 454, n.1�� ; r�� ev. edn�� , p. 398, n.1. 94 95

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G aleotti, Anna, Toleration as Recognition (Cambridge: Cambridge U niversity Press, 2003). G aus, G erald, Justificatory Liberalism: An Essay on Epistemology and Political Theory (O xford: O xford U niversity Press, 1996). G utmann, Amy, and Dennis Thompson, Deliberative Democracy and Disagreement (Cambridge, MA: Belknap Press, 1996). John H orton, “Reasonable Disagreement” (unpublished paper). Kant, Immanuel, An Answer to the Question: ‘What is Enlightenment?,’ in Kant: Political Writings, 2nd edn, ed. H ans Reiss (Cambridge, Cambridge U niversity Press, 1991). ———, “O n the Relationship of Theory to Practice in Political Right” and “Perpetual Peace: a Philosophical Sketch,” Appendix, in Kant: Political Writings, 2nd edn, ed. H ans Reiss (Cambridge, Cambridge U niversity Press, 1991). King, Preston, Toleration, 2nd edn (London: Frank Cass, 1998). McKinnon, Catriona, Toleration: A Critical Introduction (London: Routledge, 2005). N ewey, G len, Virtue, Reason and Toleration: The Place of Toleration in Ethical and Political Philosophy (Edinburgh: Edinburgh U niversity Press, 1999). ———, After Politics: The Rejection of Politics in Modern Liberal Philosophy (London: Palgrave, 2001). ———, “Toleration as Sedition,” in Matt Matravers and Susan Mendus (eds), Toleration Revisited (forthcoming). Paine, T homas, The Rights of Man, ed. H enry Collins (H armondsworth: Penguin, 1969). Rawls, John, A Theory of Justice (O xford: O xford U niversity Press, 1972). ———��, Political Liberalism, pbk edn (N ew York: Columbia U niversity Press, 1996). ———��, Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press 1999). ———��, A Theory of Justice, rev. edn (O xford: O xford U niversity Press, 1999). ———��, The Law of Peoples; with, “The Idea of Public Reason Revisited” (Cambridge, MA: H arvard U niversity Press, 1999). ———, Lectures on the History of Moral Philosophy, ed. Barbara H erman (Cambridge, MA: H arvard U niversity Press, 2000). ———��, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: H arvard U niversity Press, 2001). ———��, Lectures on the History of Political Philosophy, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 2007). Scanlon, Thomas, “The Difficulty of Tolerance,” in Thomas Scanlon, The Difficulty of Tolerance (Cambridge: Cambridge U niversity Press, 2003), pp. 187–201. W illiams, Bernard, In the Beginning was the Deed (Princeton: Princeton U niversity Press, 2005). Wenar, Leif, “Political Liberalism: An Internal Critique,” Ethics 106/1 (1996): 32–62.

Chapter 8

Is Political Liberalism H ostile to Religion? Patrick N eal

A definitive answer to the vexed question that serves as the title to this chapter would require extensive analysis of what is appropriately taken to constitute “hostility.” I propose here to partially sidestep that issue and to use the question rather as a tool for trying to achieve clarity on the appropriate way to think about Rawls’s theory of political liberalism, and especially the idea of public reason, in relation to religious conscience. In Section I, I consider the view that Rawls’s theory is not hostile to religion. This, of course, would be Rawls’s own view. I approach the issue by outlining the various particular qualifications of the idea of public reason in relation to religion, as Rawls outlined and developed the idea over time. My claim is that taken and considered together, these qualifications amount to a doctrine that is relatively mild and almost innocuous in terms of the degree to which it would “control” or “regulate” religion. If this is “hostility,” one wonders what sympathy would look like. In Section II, I consider the view that Rawls’s political liberalism is hostile to religion, at least in the sense that it treats it inappropriately. “H ostile” implies an element of intentional mistreatment, and though it may be true that Rawls’s theory treats religion inappropriately, I do not think this derives (if it does) from any hostile intention. To the no doubt highly imperfect degree to which we can read Rawls’s intentions out of his writings, the best way to describe them would be as broadly respectful toward religion. Religion is in one way or another a problem for the “enlightenment” liberals from whom Rawls distanced himself as he elaborated the ideas of political liberalism. Rawls, on the other hand, sought at least to make religion part of the solution of political liberalism. Section II addresses the question of possible hostility by examining four lines of argument often advanced against political liberalism by religion-friendly critics of liberalism. I conclude in Section III with a comment on the nature of political liberalism as a theory of legitimate political rule, and a reflection on how this bears on the issue of whether or not it is hostile to religion. My view is that political liberalism is, ultimately, mildly hostile to religious conscience, but that this is no fault of political liberalism that could be corrected. It is rather a consequence of the nature of political rule itself and of its ultimate incommensurability with the claims of religious conscience. Defining John Rawls’s legacy as a political theorist is a task that will doubtless be accurately performed only once the O wl of Minerva has taken flight. We who

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remain in the first wake of his influence can hardly see clearly in these matters. N evertheless, we can speculate. Thinking of Rawls’s legacy today in relation to the question of how to relate religion to politics, a common view would be that Rawls is best understood as a liberal critic of religion, a participant in a broadly Millean tradition of secularizing the tradition of liberal political thought, weaning it away from its lingering attachments to historical religious sources that are now seen as having outlived their utility. But it may be that at the end of the day Rawls will be understood more as having been a liberal friend of religion, a participant in a broadly Lockean tradition of synthesizing, or at least seeking to synthesize, the claims of (a certain kind of) religion with those of (a certain kind of) politics, on the understanding that healthy religious communities are necessary components of a genuinely well-ordered society. That is the view advanced in this chapter. I. The Mildness of Public Reason Consider the following position: religious views should not enter into politics. Religion is properly a private concern of individual citizens. Citizens should in effect “leave their religion at home” when they enter the public square. Religious reasoning is therefore entirely inappropriate in the political sphere. Citizens who happen to be religious should support or criticize public policies entirely in terms of shared secular reasons, not religious ones. Silence is a preferable mode of civic voice to religious expression in the public square. This position is widely characterized as the “liberal” position on the issue of religion and politics. I’m just going to label it the “X” position, to try and avoid begging certain questions. Since John Rawls was one of the leading liberal intellectuals of the twentieth century, and since his idea of public reason bears directly on the relation between religion and politics, and since this issue is a highly impassioned and contentious one, there is a tendency in polemical and popular writing to talk about Rawls’s position as though it were very close to or the equivalent of the X position. In short, insofar as Rawls is treated as the U r-liberal, there is a tendency to think of him as advocating this U r-liberal position on religion and politics. In fact, Rawls’s idea of public reason as fully and finally elaborated is a very long way from the X position. Some liberals recognize that fact and regret it, but often I think critics of Rawls and liberalism underestimate the distance in question here. In this section, I simply assemble a list of features of the idea of public reason that qualify and limit it in terms of its practical impact upon the behavior of religious citizens. When you consider all these features collectively, you can begin to wonder what all the fuss is about. �� This section draws upon material from another essay of mine, “Is Public Reason Innocuous?,” Critical Review of International Social and Political Philosophy 11/2 (June, 2008): 131–52.

Is Political Liberalism Hostile to Religion?

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Inclusive, not Exclusive Public Reason The single most important qualification of the idea of public reason is Rawls’s decision to endorse the “inclusive” rather than the “exclusive” interpretation of it. The exclusive view of public reason is a requirement that reasons given in terms of comprehensive moral or religious doctrines be excluded from political justifications offered on constitutional essentials and matters of basic justice. As Rawls puts it, this view would maintain that such comprehensive reasons “… are never to be introduced into public reason.” Many casual observers of the scholarly literature take this to be Rawls’s considered position, and thus he is often lumped into the category of those who allegedly want to “banish” religion from the public square. Though Rawls says that he was first “inclined” to the exclusive view, he changed to the inclusive view after becoming convinced that the former was “too restrictive.” The inclusive view he came to prefer allows “citizens, in certain situations, to present what they regard as the basis of political values rooted in their comprehensive doctrine, provided they do so in ways that strengthen the idea of public reason itself.” In effect, the inclusive view allows the expression of reasons based on comprehensive doctrines, including religious views and reasons, if (a) the social situation is such that the idea of public reason itself is supported and strengthened by the introduction of such, and (b) such reasons are accompanied by the expression of what we might call “standard” public reasons. The inclusive view, considered from a practical point of view, would allow the expression of comprehensive moral and religious views in the public political forum so long as standard public reasons accompanied them. Wide Public Reason and the Proviso In “The Idea of Public Reason Revisited,” Rawls moved even farther away from the exclusive interpretation of public reason through the introduction of what he termed “the Proviso.” The addition of the Proviso to the Inclusive view results in a new interpretation of public reason that Rawls labels “Wide.” The most obvious and commonly noted change is that the usage of comprehensive or religious reasons need no longer be contemporaneously accompanied by standard public reasons. Rather, the requirement is now stated in the form that “… in due course, we give properly public reasons to support

�� John Rawls, Political Liberalism, paperback edn (N ew York: Columbia U niversity Press, 1996), p. 247. �� Ibid. �� Ibid. �� Ibid. (emphasis added).

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the principles and policies our comprehensive doctrine is said to support.” T his aspect of the Proviso serves to relax the condition described in (b) above. The less immediately obvious change constituted by the Proviso may be seen in the following passage announcing it: “This requirement still allows us to introduce into political discussion at any time our comprehensive doctrine, religious or non-religious, provided that, in due course… .” Permission to invoke non-public reasons at any time in effect relaxes the condition stated in (a) above. U nder that condition, the introduction of non-public reasons was constrained by the requirement that such introduction be for the purpose of strengthening the idea of public reason itself under certain (non-well-ordered) social conditions. The Proviso still retains the idea that the purpose of justifications, even if offered in terms of one’s comprehensive view, is to strengthen the ideal of public reason and the general system of political liberalism of which it is part. H owever, there is no longer the requirement that one can advance such justifications only in a non-wellordered regime. In effect, the Proviso allows one to make political justifications in terms of one’s own comprehensive moral or religious view even in a well-ordered political regime. Constitutional Essentials and Basic Justice Another significant qualification of the practical impact of public reason is the limitation of its scope of application to what Rawls calls “constitutional essentials and questions of basic justice.” Rawls says that “many if not most political questions do not concern these fundamental matters,” which would indicate that public reason is similarly not applicable to many, if not most, political questions. For ease of reference, I am going to refer hereafter to the category of questions to which public reason does apply as “fundamental” questions. In my view, the explanations Rawls gives for limiting the scope of public reason to fundamental issues are incomplete and unconvincing. I do not think the limitation makes sense, given the internal dynamics of his theory. But the fact is that he does insist on the limit. Among the issues he specifically mentions as at least sometimes falling outside the realm of the fundamental are “… much tax legislation and many laws regulating property; statutes protecting the environment and controlling pollution; establishing national parks and preserving wilderness areas and animal and plant species; and laying aside funds for museums and the arts.”10

�� John Rawls, The Law of Peoples; with, “The Idea of Public Reason Revisited” (Cambridge, MA: H arvard U niversity Press, 1999), p. 145. �� Ibid., p. 144 (emphasis added). �� Rawls, Political Liberalism, p. 214. �� Ibid. 10 �� Ibid.


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Moral, not Legal Duty Rawls has made it clear from the beginning that the duty to utilize public reason is not to be understood as a legally enforceable duty. H e calls it “the duty of civility – to be able to explain to one another on those fundamental questions how the principles and policies they advocate and vote for can be supported by the political values of public reason.”11 H e says that it is “…of course, not a matter of law. As an ideal conception of citizenship for a constitutional democratic regime, it presents how things might be, taking people as a just and well-ordered society would encourage them to be. It describes what is possible and can be, yet may never be, though no less fundamental for that.”12 F rom a practical point of view, then, it is of considerable importance to realize and remember that on Rawls’s own terms, the law should not be used to enforce the duty of civility. Rawls’s decision to frame the idea of public reason in terms of a duty to, in apparent effect, say some things and not others, was, in retrospect, perhaps not the most effective rhetorical means of articulating his idea persuasively. N o one likes being told they can’t say certain things, even when they think they shouldn’t say them. People especially dislike being told they can’t say things they think of as absolutely central to their being. I think Rawls might have been better served by having framed his discussion more heavily in terms of what kinds of reasons make law legitimate. This rhetorically leaves to the side the incendiary issue of what someone should and should not say in political debate, an issue which brings concerns of free speech and suppression of speech into play in a way which is both unnecessary and unhelpful in terms of getting at the issue of legitimacy. O f course, the idea of public reason would still be controversial as a theory of legitimacy, but the debate might proceed without becoming entangled with the volatile question of whether someone is being told to shut up.13 The (Quite) Limited Forum of Public Reason In laying out the primary characteristics of public reason, Rawls says that it is “imperative to realize that the idea of public reason does not apply to all political discussions of fundamental questions, but only to discussions of those questions in what I refer to as the public political forum.”14 The public political forum is only one of three zones of activity in Rawls’s general conception of political society. The other two are the “nonpublic political culture” and the “background culture.”15 T he 11

�� Ibid., p. 217. �� Ibid., p. 216; see also John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: H arvard U niversity Press, 2001), p. 115. 13 �� See, for example, the pointed comments of H ugh H eclo in Christianity and Democracy (Cambridge, MA: H arvard U niversity Press, 2007), pp. 129–32. 14 �� Rawls, The Law of Peoples, p. 133. 15 �� Ibid., p. 134. 12


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background culture is “the culture of civil society,” and it encompasses a very wide array of institutional practices. Rawls mentions “churches and associations of all kinds, especially universities and professional schools, scientific and other societies.”16 The requirement of public reason does not apply to any of these activities. It is essential that any judgment of Rawls’s idea of public reason in terms of its (alleged) tendency to banish religious argumentation specifically or moral argumentation generally from political life take this limitation into account. Rawls himself notes that “sometimes those who appear to reject the idea of public reason actually mean to assert the need for a full and open discussion in the background culture. With this political liberalism fully agrees.”17 N ote that the zone of activity referred to here as “background culture” is non-governmental, but certainly not non-political. Rawls refers to the reasons characteristic of activity in this zone as “…social, and certainly not private.”18 The discussion of issues of politics and policy that goes on through the associations of civil society is (or at least should be) the very life-blood of political democracy, and Rawls’s concept of public reason places no restraint whatsoever upon religious or moral argument within this zone. The other zone of activity to which the duty of public reason does not apply is what Rawls calls the “nonpublic political culture.” H e speaks of this zone as “mediating” between the public political culture and the background culture.19 Significantly, this zone “comprises media – properly so named – of all kinds: newspapers, reviews and magazines, televisions and radio, and much else.”20 This is another major limitation upon the requirement of public reason. O nce one realizes that the activities of the media are not included within the purview of public reason, it is much more difficult to think of public reason as a mechanism for cleansing the public square of religion. Taking these five features together shows, I think, how far the distance is between Rawls’s position and the X position. In effect, the doctrine of public reason places no real restriction on the expression of public reasons in political argument at all. You can always advance religious arguments in political debate under the terms of Rawls’s conception. At most what you need in addition is a public reason to accompany any religious argument. Practically speaking, this is just not a very heavy cross to bear, and even this is only necessary “in due course.” II. Criticisms of the Treatment of Religion in Political Liberalism In light of the mildness of public reason as sketched above, it may seem odd that Rawls’s theory has generated extraordinarily divisive controversy over the issue 16

�� Ibid. �� Ibid. 18 �� Rawls, Political Liberalism, p. 220. 19 �� Rawls, The Law of Peoples, p. 134. 20 �� Ibid. 17


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of religion and its role in liberal democracy. O n the face of things, there seems to be little reason why Rawls’s theory should prove to be a practical vexation for the religious citizen. Indeed, the theory seems in important ways more sympathetic toward religious concerns than do some other forms of liberalism, especially those which understand liberal ideals as premised upon a hostility to religion as a form of irrationalism impeding (further?) human progress. It is clear that Rawls intends the overlapping consensus supportive of the principles of political liberalism to include large numbers of religious believers and hence that he sees no deep tension between political liberalism and many kinds of religion.21 Moreover, the admission of religious views into the overlapping consensus means that Rawls is requiring that citizens generally, including all sorts of non-believers, accept the reasonableness (though not necessarily the truth) of many religious views.22 Again, that is a far cry from treating religion as childish superstition. Religious Objections to Public Reason Let us now consider four objections to the idea of public reason often advanced by religious critics of political liberalism. (1) The Incompleteness Objection is not a particularly religious argument in its own terms, but it has been used as a rationale for advocating the expression of religious reasons in political discourse in opposition to the restrictions of public reason. The core idea is that many fundamental political questions cannot be settled on grounds that involve only public reasons in the Rawlsian sense.23 G iven this “incompleteness,” the argument is that we have no choice but to allow the expression and consideration of “non-public” (including religious) reasons, if we are to reach judgment on the issue at hand. (2) The Fairness Objection seeks to hoist the Rawlsian argument on its own petard. The claim is that rather than embodying the principle of fairness, the doctrine of public reason is itself an expression of unfairness insofar as it subjects religious citizens to restraints that are not applied to non-religious citizens. (3) The Integrity Objection is perhaps the most prevalent argument made against Rawls from the point of view of religious belief. The heart of this argument is that the Rawlsian idea asks the religious citizen to “split” himself in a way that does, or can do, damage to the moral and or religious integrity of the person. In being asked to conduct his political activity in accordance with public reason, and to 21

Rawls refers to “Catholicism since Vatican II, and some forms of Protestantism, Judaism and Islam” as being compatible with political liberalism. Rawls, The Law of Peoples, p. 127; see also John Rawls, “Interview with John Rawls.” Commonweal 125/16 (1998): 16. 22 �� Larry Krasnoff, “Consensus, Stability, and N ormativity in Rawls’s Political Liberalism,” The Journal of Philosophy 95/6 (1998): 269–93. 23 �� See Kent G reenawalt, Religious Convictions and Political Choice (N ew York: O xford U niversity Press, 1988).

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treat his religious views as being fundamentally non-political, the citizen, so it can be claimed, is being asked to repress or deny a fundamental part of himself when he enters the public realm. (4) The Denial of Truth Objection may appear to be the same as the integrity argument, but it is different in important ways. This argument challenges public reason on the grounds that it seems mistaken to require the citizen to avoid stating claims of truth as truth. The charge is advanced not so much in terms of alleged damage to the person (as in the integrity objection), but rather in terms of the social costs of encouraging hypocrisy and/or dissembling over the profession of truth as one sees it. Let us examine each of these arguments in more detail. Incompleteness The argument here is that public reason simply cannot work successfully even on its own terms, and that we have no practical alternative to allowing religious and other comprehensive moral conceptions to be invoked in the course of public decision-making. Is the Rawlsian idea of public reason “incomplete” in this sense? I think the correct answer is that it is usually not, though there are features of the idea that can make it appear to be so. Let me explain. H ere are two ways that one might think about the functional operation of the idea of public reason. O ne is to see it as aimed at determining a correct answer to fundamental political questions (public reason as determinative); the other is to see it as setting the conditions for permissible answers to fundamental political questions (public reason as permissive).24 O n the determinative view, public reason is incomplete if it cannot specify a correct answer to a fundamental political question. O n the permissive view, there can be a number of permissible answers to fundamental political questions, and the existence of a plurality of such answers does not render public reason incomplete (though of course such a plurality does mean that public reason is indeterminate). Public reason is only incomplete on the permissive view in cases where not a single answer to a fundamental question can pass the permissibility test. Such cases would seem to be very rare, if indeed there are any. Rawls occasionally makes remarks that can be interpreted along the determinative conception of public reason, but it is clear that his considered view of the idea is the permissive one. And since it will rarely be the case that no political answer can be justified in terms consistent with public reason, the determinative (but not permissive) “incompleteness” of public reason is, from the point of view of Rawlsian public reason, not a valid reason for appealing to religious justifications alone as the foundation of one’s support for a fundamental political policy or position. Still, this response may seem unsatisfactory in the sense that it only pushes the issue back one step. Thus, the critic might say that 24 An excellent discussion of the issue of completeness is Micah Schwartzman, “The Completeness of Public Reason,” Politics, Philosophy and Economics 3/2 (2004): 191–220. H e carefully distinguishes “inconclusive” from “indeterminate” dimensions of public reason.


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even if we grant that public reason is not incomplete (because we adopt the permissive conception of completeness), we still have the problem of explaining how a citizen might responsibly choose amongst the various possible positions on any question that are permitted from the point of view of public reason. If (permissive) public reason has exhausted itself in the process of specifying the set of possible answers that are permitted on a given question, how can the citizen go on to judge and choose amongst these permitted answers if not by relying on the non-public reasons attendant to his or her comprehensive moral and/or religious view? Where else could one possibly go? My view is that the critic is right at this point that thinking non-public reasons will have to play a role in determining one’s ultimate judgment. N ote, though, that this is a view Rawls could accept without sacrificing anything important in his theory, because in the case we are imagining, the non-public reasons supporting the citizen’s view would be accompanied by the public reasons that had been sufficient to establish it as permissible in the first place. It is interesting to note, however, that Rawls chooses not to take this line of exposition, and instead tries to find a way to model the idea of having the citizen rely on public reasons alone in reaching his or her judgment. Examining his view on this matter will help us understand his theory more intimately. In Political Liberalism, Rawls acknowledges Kent G reenawalt’s formulation of the “incompleteness” objection as a reason for allowing citizens to have recourse to the non-public components of their comprehensive doctrines when debating fundamental political questions.25 Rawls describes the challenge as follows: Suppose, then, that different combinations of values, or the same values weighed differently, tend to predominate in a particular fundamental case. Everyone appeals to political values but agreement is lacking and more than marginal differences persist. Should this happen, as it often does, some may say that public reason fails to resolve the question, in which case citizens may legitimately invoke principles appealing to nonpolitical values to resolve it in a way they find satisfactory. N ot everyone would introduce the same nonpolitical values but at least all would have an answer suitable to them.26

Rawls’s reply to the challenge is interesting. H e says that the “ideal of public reason urges us not to do this in cases of constitutional essentials and matters of basic justice.” H e then goes on to repeat the original rationale for public reason, stressing the need for equal citizens to manifest respect for one another through the exchange of public justification. H e concludes that the issue can be decided by a vote, and that the ideal of public reason is sustained when each citizen votes as he or she thinks fit in light of the purely political reasons he or she has considered �� The reference is to G reenawalt, Religious Convictions, Chs 6–7. �� Rawls, Political Liberalism, p. 240.

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and weighed.27 N ow this would solve the problem of how to arrive at a collective decision without going beyond the bounds of purely political reasons. In effect, the majority rightfully rules, supposing the majority is comprised of citizens who are exercising the duties of their office, primarily by means of consulting their (public) reason and seeking the common good rather than strategically advancing their interests. H owever, Rawls’s reply does not speak to the question of what an individual is to do when she finds that public reasons and political values are insufficient to determine her own view on the political issue at hand. H ow is she to determine how to vote in the collective decision-making process in a case like this? In effect, public reasons have run out. Where else could she possibly go but to non-public reasons? This is an interesting question, but not one with which Rawls is concerned. Rawls’s fundamental concern is not that an answer be arrived at, but rather that no illegitimate answers be allowed into the contest. In a sense, Rawls is unconcerned with who wins a contest between a set of plural answers that have each passed the threshold of admissibility. I say “in a sense,” because insofar as we think of Rawls as himself a citizen (with a comprehensive moral view and also a reasonable political view), then of course he may well have a singular position which he believes to best embody the idea of political justice, and which he would therefore espouse and defend against (other legitimate) challengers. But if we think of him as a theorist of political legitimacy, which is the position he occupies as author of the theory of political liberalism, then there is no reason for him to be concerned with who wins a contest amongst legitimate competitors. Thus when Rawls concerns himself with the possible “incompleteness” of public reason, it is always from this point of view. H is concern is that at least one legitimate proposal emerge through the filter of public reason. So long as this happens, public reason is not incomplete. That more than one proposal should pass the filter is entirely to be expected, on Rawls’s account, and is no cause for concern. It is, as it were, an embarrassment of riches. Micah Schwartzman and Andrew Williams have attempted to answer the question of what an individual should do when public reasons and political values fail to determine her position on a fundamental political question.28 T heir answers are sympathetic elaborations of Rawls’s ideas, and help us to understand the logic of them. Both stress the point upon which Rawls would surely insist, which is that whatever the citizen does in such a case, it is fundamentally important that she not abandon the requirements of public reason in order to arrive at a conclusion. Schwartzman identifies five “second-order decision-making strategies that may enable citizens to cope with cases of indeterminacy” while remaining faithful to public reason.29 O ur concern is �� See also his comments in “The Idea of Public Reason Revisited” (Rawls, The Law of Peoples, p. 168), in which he considers Philip Quinn’s formulation of the objection instead of G reenawalt’s, but his reply is consistent with his earlier remarks in response to G reenawalt. 28 �� Schwartzman, “The Completeness of Public Reason,” and Andrew Williams, “The Alleged Incompleteness of Public Reason,” Res Publica 6/2 (2000): 199–211. 29 �� Schwartzman, “The Completeness of Public Reason,” p. 181. 27


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not with the merits of these strategies, but it is worth reflecting for a moment on one of them, which is that of utilizing “arbitrary decision procedures” to reach a judgment. Williams, similarly, suggests that employing a randomizing choice procedure, such as tossing a coin or holding a lottery, would be preferable to going beyond public reasoning.30 At first glance, these proposals can seem outrageous. I make no judgment of them here. But it is worth reflecting upon the way in which they vividly embody the spirit of the Rawlsian idea of public reason and the office of citizenship. From that point of view, to go beyond public reason and to support a policy for reasons of one’s comprehensive view is to engage in an act of profound disrespect for one’s fellow citizens. An arbitrary (but fair?) basis of judgment that remains within public reason is, then, a way of expressing the depth of one’s commitment to the political value of treating one’s fellow citizens as equals. It is certainly not the ideal case of justifying a political proposal through public reason but, from a Rawlsian point of view, it might well seem the lesser of two evils if the alternative was that of appealing to non-public reasons that can, by one’s own admission, be reasonably rejected by one’s fellow equal citizens. When Rawls himself discusses the importance of staying within the bounds of political values when justifying proposals, he characteristically appeals to the case of judges by way of analogy. Thus, imagining a very hard case at law where a judge is having difficulty in reaching a conclusion through consideration of “legal grounds of precedent and recognized canons of statutory interpretation,” Rawls remarks: Thus, when there seems to be a stand-off, that is, when legal arguments seem evenly balanced on both sides, judges cannot resolve the case simply by appealing to their own political views. To do that is for judges to violate their duty. The same holds with public reason: if, when stand-offs occur, citizens simply invoke grounding reasons of their comprehensive views, the principle of reciprocity is violated. From the point of view of public reason, citizens must vote for the ordering of political values they sincerely think the most reasonable.31

The last sentence of this passage is perplexing, because it seems to avoid the issue, which is that in the case of a stand-off the citizen does not know what ordering of political values she thinks the most reasonable. To judge Schwartzman’s and Williams’s proposal for extending Rawls’s reasoning in the direction of repairing to an arbitrary procedure in such cases, we could begin by asking ourselves what we think about the analogous case of the judge who has reached a stand-off in a hard case at law. Would we rather have him flip a coin to reach a judgment, or would we prefer that he repair to his own political (or moral or religious) views? Perhaps a third alternative would be to engage in either of these methods of resolution and 30

�� Williams, “The Alleged Incompleteness of Public Reason,” p. 206. �� Rawls, The Law of Peoples, p. 168.

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then publicly present his justification in terms of a “balance of political values” that simply denied the stand-off. Fairness The fairness argument is like the completeness argument in that while it is not itself a religious argument, it is often appealed to by friends of religion who are critics of Rawls because it is thought to have the consequence of undermining Rawls’s doctrine of public reason and its treatment of the religious. Religious citizens in a Rawlsian polity are required to regulate their use of religious reasons in the public realm in accord with the strictures of public reason. In a sense, then, they do not have direct access to the full array of reasons they (may) believe to be relevant to fundamental political questions. O n the other hand, other citizens may have such full and direct access. Is this unfair? O ur answer will depend on a number of things here. H ow great is the degree of differential access? Are only religious citizens subject to the filtering of public reason? And, most significantly, how strong is the rationale for the filtering in the first place? This last question is the most significant, but also the most difficult to answer. Readers will have to judge for themselves the strength of appeal of Rawls’s basic idea that political equality is expressed through the activity of political justification through public reason; I believe it to be an attractive account of political democracy. I do not think that this conception is guilty of harboring any endemic strain of unfairness. Indeed, it is itself an attempt to model a political conception of legitimacy that derives from the idea of treating people equally (politically) by treating them fairly. In a way, Political Liberalism is Rawls’s version of “legitimacy as fairness” intended to accompany the doctrine of “justice as fairness” that was the lynchpin of A Theory of Justice. Let’s leave this foundational issue in order to look at the others raised above. Are only religious citizens subject to the filtering of public reason? The direct answer to this question is “N o, certainly not.” It is an answer that Rawls has stressed in speaking about the religious criticisms of his theory.32 O n the other hand, there is an element of Rawls’s position here that leaves a lingering doubt about the apparent clarity of that initial “no.” Let’s examine both aspects of his position. Rawls’s idea of public reason regulates the appeal to comprehensive doctrines in the process of political justification. This category includes both religious and non-religious members; Rawls often mentions “utilitarianism” and “Millean liberalism” as examples of non-religious comprehensive doctrines that cannot rightfully form the foundation of political order in a society characterized by the fact of reasonable pluralism. It is not unreasonable to reject either of these 32

�� H e is adamant on this point in the interview he did with Bernard Prusak for Commonweal Magazine (see Prusak, “Interview with John Rawls”; reprinted in John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 1999), pp. 616–22.


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doctrines, and hence a political order that is inclusive of all reasonable citizens cannot be based solely upon either of them. The same is true of religions. So religious doctrines, and the citizens who espouse them, are treated as they are by public reason not because of the religious character of their views, but rather because of their plural and comprehensive character. The central Rawlsian contrast is between public (political) and non-public (comprehensive) reasons, not between religious and secular reasons. So there is no unfairness to religion in any direct way at this level of analysis. O ne may, of course, think that the Rawlsian idea is flawed or incorrect on its merits, but that is not our issue at the moment. We are concerned only with the issue of unfairness in treatment (which may or may not be sound treatment) for the religious. O n the other hand, there is a lingering sense that whatever the actual terms of Rawls’s doctrine of public reason, it is religious citizens and not secular ones who will have the most genuinely difficult time with the restrictive elements of public reason. I think this sense arises not so much from a feature of Rawls’s idea of public reason as it does from certain features of religious and non-religious comprehensive doctrines. To put it simply, religious comprehensive doctrines have a great deal more content that would fall under the scope of the regulations of public reason than non-religious comprehensive doctrines do, and this difference can provoke charges of unfairness. At the extreme, the difference can provoke doubt about whether the very concept of “comprehensive doctrines” itself is not an artificial mechanism whose function is to render religious claims in the political sphere “regulable.” An immediately noticeable difference between traditional religious comprehensive doctrines and the non-religious comprehensive doctrines Rawls mentions (utilitarianism, Millean autonomy) is what we might call the “extensive narrative content” of the former. Christianity and Judaism, for example, are full of stories. Moreover, these stories are normatively authoritative within the religious communities they define. They exist as parts of scriptures held to be sacred, another feature absent from non-religious comprehensive doctrines. N ow to be sure, these narratives and the sacred texts which they comprise are the subject of deep and pervasive interpretive debate amongst believers. My point is not to deny this complexity, but rather to note the corresponding absence of such narratives and ascriptions of sacred character in the non-religious comprehensive doctrines Rawls mentions. Modern non-religious comprehensive doctrines often pride themselves upon just this feature; utilitarians, for example, have tended to see utilitarianism as a particularly “scientific” or “rational” account of morality that advances beyond the narrative confines of traditional religion. Public reason would, presumably, rule out political justifications based only on appeals to narrative features of one’s comprehensive doctrine. It would not be appropriate, for example, to favor a relaxed immigration policy for the poor on the basis of the parable of the G ood Samaritan. U nder Rawls’s theory, such narrative appeals would be ethically admissible as long as they were supplements to other, more publicly acceptable, reasons. But they could not carry the weight of public justification themselves. This would be of no consequence to those who eschew


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appeal to authoritative narrative in the first place, but to those religious believers who do appeal to such narratives it may be experienced as a heavier burden to bear. And this in turn may lead to claims of unfair treatment, given the difference. O f course, the defender of public reason may acknowledge this difference and still claim that it is justified. And so it may be. Still, one can see how the difference in the degree of access to one’s full set of comprehensive considerations (not simply reasons) may become an issue of fairness in treatment if there is a pattern of differential access between religious and non-religious comprehensive doctrines. Integrity The Integrity Argument is perhaps the most prevalent argument made against Rawls from the point of view of religious belief.33 (For example, see N eal, 2000.) The heart of this argument is that the Rawlsian idea asks the religious citizen to “split” himself in a way that does, or can do, damage to the religious integrity of the person. In being asked to conduct his political activity in accordance with public reason, and to treat his religious views as being fundamentally non-political, the citizen, so it may be claimed, is being asked to repress or deny a fundamental part of himself when he enters the public realm. The prevalence of this objection to Rawls’s idea of public reason is a function not only of that doctrine, but also of the sensitivity to the issue of integrity that obtains in the monotheistic religious traditions. The threat to faithful obedience to G od constituted by political authority is a constant theme in these religions, and so is the danger of denying G od out of fear of (worldly) authority. Peter’s failure to acknowledge Jesus at the crowing of the cock is only the most vivid of numerous examples. N icholas Wolterstorff has articulated a particularly compelling version of this argument. Wolterstorff challenges public reason in the name of integrity by reminding us that: … it belongs to the religious convictions of a good many religious people in our society that they ought to base their decisions concerning fundamental issues of justice on their religious convictions. They do not view it as an option whether or not to do so. It is their conviction that they ought to strive for wholeness, integrity, integration, in their lives: that they ought to allow the Word of G od, the teachings of the Torah, the command and example of Jesus, or whatever, to shape their existence as a whole, including, then, their social and political existence. Their religion is not, for them, about something other than their social and political existence; it is also about their social and political existence.34 33

�� For example, see Patrick N eal, “Political Liberalism, Public Reason, and the Citizen of Faith,” in Robert G eorge and Christopher Wolfe (eds), Natural Law and Public Reason (Washington, DC: G eorgetown U niversity Press, 2000), pp. 171–201. 34 �� Robert Audi and N icholas Wolterstorff, Religion in the Public Square: The Place of Religious Convictions in Political Debate (Lanham: Rowman & Littlefield, 1997), p. 105.


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Wolterstorff’s formulation highlights a number of interesting features of the integrity argument. First, it brings out well the depth of the difference on the issue of authority between (this type of) religious belief and Rawls’s notions of political liberalism and public reason. The integralist believer’s view is that he is religiously bound to affirm the authoritative superiority of the demands of his comprehensive religious view, including the political aspects and dimensions of that view. H e is thus religiously bound not to affirm political principles without first consulting the directives of his comprehensive view. This seems to put him at irreconcilable odds with the political liberal, who requires that reasonable citizens adjust their comprehensive views to the demands of public reason. N ow without denying that this difference is indeed irreconcilable, it is nevertheless important to recall that this difference is on the issue of authority, not on the issue of the substance of political liberalism (or the substance of any other political doctrine, for that matter). That is to say, the integralist religious citizen can affirm the substance of political liberalism if that substance is consistent with his conscientious understanding of his religious duty. This is no merely hypothetical possibility. Christians, for example, attempting to follow the example of Jesus and apply their discipleship to the realm of politics, could probably do worse than to enact the practice of treating their fellow citizens as free and equal cooperators in the pursuit of justice in the way recommended by political liberalism. They may believe they have a religious obligation to practice the discipline of public reason as a means of treating their fellow community members in a religiously appropriate way. This would be a case of accepting the substance of political liberalism without accepting its own account of the authoritative reasons for accepting that substance. In different ways, Paul Weithman and Philip Quinn have developed versions of this view.35 Second, Wolterstorff’s formulation captures well the believer’s perspective on this issue by equating “integrity” with “wholeness” and “integration.” Such an equation is no part of the self-understanding of the perspective of political liberalism. Indeed, on that self-understanding, things are just the opposite: from the perspective of political liberalism, “wholeness” and “integration” can easily appear as “fanaticism” and “a narrow-minded unwillingness to take pluralism seriously into view.” From the political liberal perspective, the willingness to separate one’s comprehensive moral views from one’s political principles is a sign of maturity and reasonableness, something to be desired and cultivated rather than feared and shunned. But from the integralist believer’s perspective, this partitioning of claims into separate spheres, each with its own normative autonomy, is a great danger, the danger of turning away and fleeing from the absolutely authoritative command of G od. For the believer, it is not that partitioning cannot occur, but that

35

�� See Philip Quinn, “Religious Citizens within the Limits of Public Reason,” in Philip Quinn (ed.), Essays in Philosophy of Religion (O xford: O xford U niversity Press, 2006), pp. 187–207; and Paul Weithman, Religion and the Obligations of Citizenship (Cambridge: Cambridge U niversity Press, 2002).


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any legitimate partitioning must be a consequence of religious authority, not a means of containing it. A third illuminating feature of Wolterstorff’s expression is somewhat inadvertent. Woltertorff is speaking by way of defending the claims of integralist conscience against the demands of public reason and yet one of his formulations unwittingly conveys perfectly the way this issue appears from the point of view of the liberal state. When he gives some illustrative examples of the indivisibility of religious authority in the eyes of the integralist believer, Wolterstorff mentions the “Word of G od,” the “Torah,” and “Jesus.” As (I presume) a way of ecumenically indicating that this list is not exhaustive, he adds at the conclusion, “or whatever.” O f course, no actual integralist believer could ever understand himself as practicing faithfulness to a “whatever.” This is, however, a perfect expression of the way the matter appears in the perspective of the liberal state. “Jesus,” “the Torah” and “the Word of G od” are so many “whatevers” from that point of view. Fairness requires that none be privileged over the other, or in other words, that they all be commensurated and treated as “whatevers.” My point is not to criticize this commensuration. I am not blaming the liberal state for this practice, but rather pointing out that this is what constitutes political liberalism. And this is why the relationship between the believer and the liberal state must always have some element of antagonism in it. For however compatible the substance of political liberalism might be with the political dictates of the believer’s comprehensive view, the believer as believer cannot regard the object of his belief as a mere whatever. O n the other hand, the emphasis upon integrity as a form of faithfulness can lead one to exaggerate the distance between political liberalism and the demands of religious conscience. An over-emphasis upon integrity can lead the religious citizen to mistakenly believe that he must inject his religious views into public political argument, and even in a particularly strident form, lest he betray his religious identity and conscience. H e may even come to believe that giving offense to the liberal is necessary to avoid the loss of integrity through assimilation into the liberal fold. The writings of Stanley H auerwas, which I admire greatly, are nevertheless sometimes guilty, in my view, of an uncharitable provocation to this exaggeration.36 The exaggerated sense of integrity can derive from failing to see that what is crucial in determining whether one acts faithfully in conscience is what authority one follows in determining what to do, not simply the substance of what one does. In a given case, whether one ought to aggressively advance one’s religious views in political argument or whether one ought to quietly and modestly go out of one’s way to meet a political foe on his own ground, will be a difficult question with many factors to be taken into account. Conscience may command either, �� See Stanley H auerwas, Dispatches from the Front: Theological Engagements with the Secular (Durham N C: Duke U niversity Press, 1994); for a serious and respectful criticism of H auerwas’s views, see Jeffrey Stout, Democracy and Tradition (Princeton: Princeton U niversity Press, 2004). 36


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or another, strategy, in any given case. N othing in principle commands that the conscientious believer eschew the program of public reason on the liberal model. The crucial issue from the point of view of integrity is the source of authority which guides one’s judgments and choices in such cases. It is true, on my view, that a conscientious religious believer cannot accept the liberal program of public reason on grounds that would deny the ultimate authority of one’s religious duties to G od. H owever, a conscientious believer following (attempting to follow what one best understands as) divine authority, may reach the judgment that the liberal program of public reason is the appropriate way in which to relate politically to other members of his or her political community. So, conscientious belief does not necessarily rule out (though, to be clear, neither does it entail or require) commitment to the liberal program of public reason; it rules out some grounds and reasons for committing to that program. Thus while I acknowledge that H auerwas is surely right to warn conscientious Christians of the dangers of tailoring their Christianity to the profile of modern liberal political ideology, I nevertheless add the qualification that it is also a mistake to think that a conscientious Christian believer must today constitute himself as an opponent of “liberalism.” Denial of Truth This argument seizes upon the apparent oddity of recommending that one not speak the truth as one sees it in certain political circumstances. O rdinarily, we count it a virtue of persons to express the truth of things as best they understand it. Insofar as public reason cuts against telling the truth, it confronts the potential critical force of this ordinary moral intuition that it is good to speak the truth. O ur assessment of this criticism will turn on two aspects of the case. First, we will we need to examine and assess the reasons that inform the position of public reason in regard to truth. We may be convinced by those reasons that the ordinary virtue of speaking the truth as best one sees it is overridden in this case. Second, we will want to examine exactly what public reason suggests we do in lieu of following the ordinary course of speaking the truth as best we see it. There are a number of possibilities here, and our evaluation will hinge partly upon which particular one we are imagining public reason to support. Let’s begin with the first issue. First, we might note that the general idea of not speaking the whole truth in all times and places is a perfectly familiar one from everyday life, and not nearly as morally exotic as it might first appear. Civil relations between strangers and personal relations between intimates are often sustained by prudent decisions to remain silent rather than insist upon speaking the truth insistently, and in some cases some elements of dissembling, and even lying, may be morally warranted, all things considered. The appropriate answer to “Does this make me look fat?” is not always the truthful one.37 37 �� S ee also Rawls, Political Liberalism, pp. 218–19, where other, weightier, examples are discussed.


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With regard to public reason specifically, it is important to recall the values that are served by this practice in the eyes of its defenders. Citizens are counseled to avoid appealing directly to the (alleged) truth of their comprehensive moral or religious views on fundamental political questions as a means of pursuing the value of treating one’s fellow citizens as free and equal cooperators in the pursuit of political justice.38 This is certainly no small thing from a moral point of view. N ow of course there is disagreement between supporters of public reason and their critics over the issue of whether obeying the restrictions of public reason is in fact necessary to the achievement of these values. We cannot settle that issue here, but it is important to keep in mind that defenders of public reason, if they should turn out to be wrong on this matter, are nevertheless recommending the doctrine for purposes that themselves will be widely thought to be legitimate by most (admittedly, not all) critics of public reason. The restrictions on full appeal to the (moral) truth are aimed not at harming or hampering the pursuit of truth, but rather at realizing a set of fundamental political goods. Rawls is sensitive to this line of criticism, and anxious to try and reassure readers that public reason is not hostile to truth. H e goes so far as to speak of the “paradox” of public reason, and acknowledges that at first glance it surely seems odd to counsel that the truth not be spoken in these matters: “H ow can it be either reasonable or rational, when basic matters are at stake, for citizens to appeal only to a public conception of justice and not to the whole truth as they see it? Surely, the most fundamental questions should be settled by appealing to the most important truths, yet these may far transcend public reason!”39 T he answer to these rhetorical questions derives from the acknowledgement of the fact of reasonable pluralism. To acknowledge this is to acknowledge that even assuming my comprehensive view to be true, it does not necessarily mark someone as unreasonable if they reject my true comprehensive view. Appealing to public reasons rather than to the whole truth of my comprehensive view as a means of justifying political choices thus becomes my way of exhibiting respect for them. Rawls’s formulation is that “… once we accept the fact that reasonable pluralism is a permanent condition of public culture under free institutions, the idea of the reasonable is more suitable as part of the basis of public justification for a constitutional regime than the idea of moral truth.”40 N one of this means that my comprehensive view is not the true one. It may or not be; political liberalism (claims to) avoid addressing this foundational issue. Rawls does remind his readers however, that if “any of those reasonable comprehensive doctrines supports only true moral judgments, the political conception is itself correct, or close thereto, since it is endorsed by a true doctrine.”41 Rawls does not want citizens to appeal to the whole truth as they see it on fundamental political questions, but neither does he want to deny (or affirm, �� S ee Rawls, The Law of Peoples, p. 154. �� Rawls, Political Liberalism, p. 216. 40 �� Ibid., p. 129. 41 �� Ibid., p. 128. 38

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for that matter) the truth of any particular comprehensive view, or at least of those that are reasonable. O n the second issue of what we are counseled to do in lieu of appealing directly to the (moral) truth as we see it, the fundamental point to remember is that public reason does not counsel lying as the alternative activity. Rather, it is (public) silence that would seem to be the fundamental alternative. N ow we may decide that this is unjustified, but it certainly seems, at least at first glance, to raise less of a moral difficulty than would the advocacy of something as active and morally questionable as lying. We thus need to be careful and remember that in telling us, at times, not to speak the truth as we see it, public reason is not telling us to lie. It is rather counseling us to leave certain things unsaid (and in the non-public realm) as a consequence of the fact that even though we hold these things to be true, we acknowledge that the reasonableness of our fellow free and equal citizens is not impugned by the fact that they do not share our view of these matters. This last point cannot be stressed enough if we are to evaluate the doctrine of public reason fairly. If we remain silent (about our comprehensive views) in such cases, it is not fundamentally because we do not wish to give offense to others, or because we value peaceful relations above moral truth (assuming the two conflict), but rather because we believe it is a necessary means of exhibiting respect for our companions as our equals. This is the strongest reason that can be brought to support the restrictions of public reason, and so it is the reason upon which we ought to focus our attention. Even if we grant that silence is a far cry from lying, we still need to engage the hard question of whether silence in these cases nevertheless constitutes a denial or betrayal of truth from the point of view of the conscientious citizen. After all, silence is not morally innocent just because lying is morally culpable. H ere, it seems to me, our analytical spade hits bedrock. It is easy to see that silence is not a moral problem from the point of view of the defender of public reason; indeed, he believes it is the morally choice-worthy course of action. But from the believer’s point of view things can appear quite differently. I say “can appear” because it is impossible to generalize here; so much depends upon the particular tenets and demands of the particular religious beliefs and sensibility in a given case. For some, silence about the “whole truth” will be a means of expressing, not a means of violating, the religious vocation they pursue. But surely for some it will be understood differently. The injunction to “testify,” “witness,” “tell the good news” and in other ways give overt expression to one’s religious beliefs will be a central element of many structures of religious consciousness, and to such believers “silence” can appear as “betrayal.” I have no doubt that sometimes it is. Whatever the particulars of the believer’s self-conception and consciousness in such cases, it at least seems fair to say that no religious believer could accept the terms of public reason as a decisively authoritative reason for silence. O nly a religious reason could serve such a function.

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III. Conclusion: Religious Conscience and Political Rule Rather than a simple “yes” or “no” to the question of whether political liberalism is hostile to religion, I propose a hybrid position: “yes, it ultimately is, but only because it has to be. G iven that necessity, it’s not too bad from the point of view of the religious citizen.” Let me elaborate. The idea of public reason is an idea in service to the state. H ere is a way to think of it. O ne perspective upon public reason is that of the state. The state is attracted to public reason because it is a means of serving the purpose of building and sustaining solidarity within a polity. It is, as Rawls calls it, an aspect of “civic friendship.” Moreover, it is a means of doing this in a way that both respects and further enhances the values of freedom and equality. It is from this perspective that almost all of Rawls’s discourse about public reason is conducted. H e is articulating a theory of political legitimacy, and that is something that is needed by a state. This perspective is, of course, concerned about “citizens,” but is not concerned about any particular citizen. It is of the essence of the perspective to treat the citizens equally by treating them similarly in accord with their political status as coexercisers of the coercive power of the state. “Public Reason” is a piece of a larger package of practices and ideas that are (proposed as being) constitutive of what it means for a state to be a liberal democracy. Rawls writes as a voice explicating these practices and ideas. In a sense, he is writing as a public official of the (ideal) state called “Liberal-Democracy,” the official charged with the responsibility of, as it were, writing a manual explaining what “legitimacy” is in such a state. N ow, there is another perspective we can take on public reason. This is the individual perspective of you, or me, or Rawls for that matter (in his “non-official” capacity). We are looking at the same thing that the state is looking at when it speaks of public reason, but we have very different concerns in regard to it. The single most important of these is the following: we have a comprehensive moral perspective that includes our conception of the good (something public officials as public officials do not have). For some of us, this is a religious identity. And for some of us in that category, we hold that our fundamental duty is to live in a way that fulfills G od’s will for us. For those of us who are non-religious citizens, there will also be a subset who maintain that their fundamental duty is to their moral conscience, or some other object that is other than the state. Let’s focus only on these citizens, and let’s describe them as having a “prior loyalty” when it comes to their relation to the state.42 The state does not have a prior loyalty. It is its own object of loyalty. It is possible that the truth of the matter here is more or less as H obbes portrayed it, that states are jealous sovereigns who insist that citizens recognize state authority as ultimate and as the source of their fundamental duty, and that they can abide 42 �� O n the idea of prior loyalty, see John H oward Yoder, “Religious Liberty and the Prior Loyalty of the People of G od,” unpublished paper available at http://theology.nd.edu/ people/research/yoder-john/index.shtml (1990).


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no competitors. I tend to think that H obbes was right, but for the moment I want to try and avoid taking that view, and instead allow the possibility that some states are not like this. A liberal-democratic state that understood its authority to be limited by the pre- or extra-political rights of its citizens (“human rights” in today’s parlance, “natural rights” in an older idiom) would be such a state. It is clearly the sort of state that is envisioned in Rawls’s political liberalism.43 In any case, the individual has a perspective upon and a concern about public reason that the state does not have. For the individual citizen with a prior loyalty that is the ground of his conscience (or, as the state would put it, “his claim to conscience”), the foremost question is whether the practice of public reason would require the individual to violate or betray his conscience. A conscientious citizen with prior loyalties will assess public reason and the question of whether or not to practice it against the standard set by those prior loyalties. H is commitment to public reason and the state of which it is part will thus be a necessarily qualified one. There is ambiguity in Rawls’s texts over whether this sort of qualified allegiance (assuming for the sake of argument here that the individual has found reason to affirm political liberalism and public reason) is acceptable from his point of view or not. A full consideration of the various statements he makes that bear on this question is a task for another occasion. My own view is that the ambiguity is never resolved, because Rawls’s theory is pulled in opposing directions by two of its fundamental purposes. O n one hand, political liberalism is conceived as shallow in philosophical depth and ecumenical in political spirit, a doctrine that is interested in attracting as many into its fold as it can. From this perspective, the “qualified” nature of the religious citizen’s commitment is unexceptional and entirely to be expected. O ne accepts the commitment without pushing too hard on the reasons behind it. O n the other hand, Rawls never loses his concern with a number of issues that push in the opposing direction of defining political liberalism in tighter and more specific ways that are bound to exclude some who would otherwise enter through the wider gates characteristic of the first, ecumenical, impulse. Thus, for example, he is concerned that religious citizens affirm “wholehearted” commitment to political liberalism, and he fears a “mere modus vivendi” wherein commitment would be provisional and rooted in the desire to advance the interests of one’s religion at the expense of the public good. In any case, whether he would ultimately find it acceptable or not, I cannot see how Rawls could expect anything more from religious citizens than this sort of qualified commitment to political liberalism and public reason. Some religious citizens will imagine that in thus claiming to show the limits of political liberalism in terms of its claim on conscience, my argument will claim to have revealed 43

�� Whether Rawls’s theory is actually consistent with such an idea of limited, constitutional government is an open question. For an interesting argument that it is not, see Michael Zuckert, “Is Modern Liberalism Compatible with Limited G overnment: The Case of Rawls,” in Robert G eorge (ed.), Natural Law, Liberalism and Morality: Contemporary Essays (O xford: O xford U niversity Press, 2001), pp. 49–86.

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something wrong with political liberalism. But to take this view would be to suppose that a “better” political theory would be one that successfully harmonized the claims of the legitimate state with the claims of religious conscience. I do not think that can be done, because conscience is, as defenders of the state’s perspective like H obbes have always correctly claimed, fundamentally intransigent from a political perspective. A conscience that was, in principle and structure, in harmony with the demands of the legitimate political state as a matter of principle (and not as a matter of pragmatic overlap) would be a conscience tamed to the point of suspicion. The hard truth about claims of conscience, it seems to me, is that they are fundamentally unjustifiable from the point of view of the legitimate state, for they claim a legitimacy that is other than that of the state. If the state could define that legitimacy, it would not be other in the first place. And if it is other in the first place, then it cannot be fully harmonized with the authority of even the legitimate state. At the end of the day, I submit, one way to think about what conscience means is simply that it is the “other” of legitimate political power. At first blush, this might seem to be a hard truth from the perspective of the state, but that is probably not so. States are not without their means, including, of course (politically) legitimate ones, of dealing with the potential problems of order here (consider, in this vein, Rawls’s idea of “stability for the right reasons”), and modern history shows them to have been pretty successful at it, judged by their own standards. In fact, it is a much harder truth from the point of view of the individual. The permanent possibility of political martyrdom is, I submit, a constituent of conscience, and that is no happy news, which is perhaps not unrelated to our all too human tendency to forget it. I have assumed a good deal in these final comments, not a little of it theological in nature, and highly contestable at that. Political liberalism, at least in terms of its general thrust and outline, seems to me to be a fairly accommodating theory of political legitimacy from a religious believer’s perspective, at least if that believer affirms, as I think (along with Rawls) he or she ought to, the freedom and equality of all persons and acknowledges that those who do not share his or her religious commitments are not therefore unreasonable. If this is right, then it becomes possible to see Rawls’s legacy, in the terms used in the introduction, as being part of a Lockean tradition of “religion-friendly” liberalism rather than as part of a more “religion critical” tradition of Millean liberalism. Political liberalism is not bad as a theory of the just political state; but it’s still just a theory of the political state. O ne’s deepest duties lie elsewhere. Bibliography Audi, Robert, and N icholas Wolterstorff, Religion in the Public Square: The Place of Religious Convictions in Political Debate (Lanham: Rowman & Littlefield, 1997).


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H auerwas, Stanley, Dispatches from the Front: Theological Engagements with the Secular (Durham N C: Duke U niversity Press, 1994); H eclo, H ugh, Christianity and Democracy (Cambridge, MA: H arvard U niversity Press, 2007). G reenawalt, Kent, Religious Convictions and Political Choice (N ew York: O xford U niversity Press, 1988). Krasnoff, Larry, “Consensus, Stability, and N ormativity in Rawls’s Political Liberalism,” The Journal of Philosophy 95/6 (1998): 269–93. N eal, Patrick, “Political Liberalism, Public Reason, and the Citizen of Faith,” in Robert G eorge and Christopher Wolfe (eds), Natural Law and Public Reason (Washington, D.C.: G eorgetown U niversity Press, 2000), pp. 171–201. ———, “Is Public Reason Innocuous?,” Critical Review of International Social and Political Philosophy 11/2 (June, 2008): 131–52. Prusak, Bernard, “Interview with John Rawls,” Commonweal 125/16 (1998): 12–18; reprinted in John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 1999), pp. 616–22. Quinn, Philip, “Religious Citizens within the Limits of Public Reason,” in Philip Quinn (ed.), Essays in Philosophy of Religion (O xford: O xford U niversity Press, 2006), pp. 187–207. Rawls, John, Political Liberalism, paperback edn (N ew York: Columbia U niversity Press, 1996). ———, “Commonweal Interview with John Rawls,” in John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 1999), pp. 616–22. ———, The Law of Peoples; with, “The Idea of Public Reason Revisited” (Cambridge, MA: H arvard U niversity Press, 1999). ———, Justice as Fairness: A Restatement (Cambridge, MA: H arvard U niversity Press, 2001). Schwartzman, Micah, “The Completeness of Public Reason,” Politics, Philosophy and Economics 3/2 (2004): 191–220. Stout, Jeffrey, Democracy and Tradition (Princeton: Princeton U niversity Press, 2004). Weithman, Paul, Religion and the Obligations of Citizenship (Cambridge: Cambridge U niversity Press, 2002). Williams, Andrew, “The Alleged Incompleteness of Public Reason,” Res Publica 6/2 (2000): 199–211. Yoder, John H oward, “Religious Liberty and the Prior Loyalty of the People of G od,” unpublished paper available at http://theology.nd.edu/people/research/ yoder-john/index.shtml (1990). Zuckert, Michael, “Is Modern Liberalism Compatible with Limited G overnment: The Case of Rawls,” in Robert G eorge (ed.), Natural Law, Liberalism and Morality: Contemporary Essays (O xford: O xford U niversity Press, 2001), pp. 49–86.


Chapter 9

Political T oleration and C oercive Intervention in the International S phere Rex Martin

§1. Introduction: The Law of Peoples O ne of the perennial and pressing questions in international relations concerns the issue of what qualifies a state (or nation or people) to be properly regarded as selfdetermining (or autonomous) and thereby as free from coercive interventions by other states. Though this issue is an old one it has recently been revisited in John Rawls’s book The Law of Peoples (1999). Rawls, while accepting that a large number of societies in the world today are neither liberal nor democratic, argues that some of them are or could be societies in which the values accepted by the majority afford grounds for certain protections and securities for all the inhabitants in the country. These protections and benefits give rise to claims and duties, binding both on officials and ordinary citizens. Such societies can be conceived as subscribing to a “common good” standard of justice for all inhabitants, based on values (often religious values) shared by most of them. This is not to say that they conform to anything like democratic norms (on a one person/one vote basis), but Rawls does regard the societies in question as well ordered. In the special case he envisions, each one operates as a “consultation hierarchy.” H ere the basic decision procedure, though not democratic, is such that the governing person or governing council (believing that laws and policies do and should embody a common good) will make a genuine effort to consult various constituencies or groups, as to their interests and their view of the public good, and to keep them informed. Dissent is allowed for. (See Rawls, LoP 1999, pp. 67–8, 72, 77–8, 88, 92.) And these societies are nonaggressive toward their neighbors. They are decent societies. �� John Rawls, The Law of Peoples with “The Idea of Public Reason Revisited” (Cambridge, MA: H arvard U niversity Press, 1999) – cited hereafter as: LoP 1999. For discussions of this book and some of the ensuing controversies, see Rex Martin and David Reidy (eds), Rawls’s Law of Peoples: A Realistic Utopia? (O xford: Blackwell, 2006), esp. Ch. 1 – cited hereafter as Realistic Utopia? 2006. �� For Rawls’s account of these “decent” nonliberal societies see LoP 1999, sects 8 and 9 (esp. p. 77) and p. 88. For the crucial idea of a “common good” conception of justice, see Rawls, LoP 1999, pp. 61, 64–9, 83, and sect. 9.


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Rawls argues, in The Law of Peoples, that liberal societies and decent nonliberal societies would be able, respectively, to affirm the same set of international conventions, as outlined and detailed in the eight articles of what he calls the law of peoples. This “law” includes the traditional international relations view of states (that states are equal, autonomous, and have territorial integrity, that states should observe treaties) but adds to it certain conditions or constraints on that traditional view. These constraints derive from the post‑World War Two settlement and are intended to restrict the sovereignty granted to states on the Westphalian model. The most important of these constraints are the prohibition on waging war except in self‑defense (or in collective defense), the claim that certain standards (standards of jus in bello) are to prevail in the conduct of wars, the notion of a duty to aid deeply impoverished or “burdened” societies, and finally the idea that human rights are to be respected internally. What might this commitment to human rights involve? Rawls, in his The Law of Peoples book, makes clear that he regards the rights in articles 3–18 in the U nited N ation’s (UN ) U niversal Declaration (1948) as “human rights proper.” These rights plus other rights generated from them – as found preeminently in the international conventions against genocide (1948) and apartheid (1973) – are among the human rights that decent societies (be they liberal or nonliberal ones) are committed to upholding. Rawls, however, is not especially concerned simply to stick with the literal wording of these important UN texts to provide the content for his account of human rights. Instead, he emphasizes a shared commitment (on the part of liberal societies and decent nonliberal ones) to the very idea of human rights, as that is understood today (see LoP 1999, p. 27). And to indicate the content of this idea he suggests a minimum set of human rights which captures the essence of much of what is embodied in the UN texts.

�� For a quick summary of the law of peoples, see the eight-point list of main articles in LoP 1999, p. 37; see also pp. 27, 42. Rawls’s book is based on an earlier article also entitled “The Law of Peoples,” in Stephen Shute and Susan H urley (eds), On Human Rights: The Oxford Amnesty Lectures, 1993 (N ew York: Basic Books, 1993), pp. 41–82; reprinted in John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 1999), pp. 529–64 – hereafter: Freeman, CP, pp. 529–64. The book is a substantially revised and much longer reworking of main lines of the article. S ee Freeman, CP, p. 540 for Rawls’s short list of the “principles” of the law of peoples in his article (comprising in this case only seven short points, not the eight found in the book). There are other changes – changes in the order of the points or in the verbal content – of the seven points that the article (1993) and the book (LoP 1999) have in common, but the addition of the duty to assist burdened societies is the only substantive change that the book makes on the list in the article. �� S ee LoP 1999, pp. 79–80, esp. n. 23 on p. 80, for the points made and for the quoted phrase.

Political Toleration and Coercive Intervention in the International Spheree

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Among the human rights are the right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality as expressed by the rules of natural justice (that is, that similar cases are to be treated similarly).

These basic human rights are visibly recognizable and legally or socially established features of both liberal societies and decent nonliberal ones. The list represents those rights that, at a minimum, are necessary to or characteristic of these societies as well-ordered and peaceable, and as having a tradition of affording authoritative recognition and social protection to beneficial ways of acting or of being treated (for all individual persons) within their polity. In the present paper I want to focus on two issues in particular. I want first to examine Rawls’s notion of toleration within the society of well-ordered peoples – that is, of toleration within that particular relationship which holds between liberal and decent nonliberal societies. Then, second, I want to look at Rawls’s account of coercive and forceful interventions in the international sphere. H ere I want to pay special attention to his views on humanitarian intervention and on the special role that the notion of a society of peoples plays in such interventions. §2. Main Features of International Political Toleration In this section I want to develop the theme of international political toleration by directing attention to its leading features. The main idea is that those peoples who actually accept and conform to the fundamental articles of the law of peoples are the societies whose political and social systems should be tolerated; they are the ones who have a right to be tolerated. Each such society should be willing, on that basis, to extend political toleration to all the others. Rawls (addressing himself to liberal societies) says, “H ere, to tolerate means not only to refrain from exercising political sanctions – military, economic, or diplomatic – to make a people change

�� S ee Rawls, LoP 1999, p. 65, for this list; also p. 9. For earlier formulations of his short list, see Rawls, “Law of Peoples” (1993) in Freeman, CP, at pp. 546–7, 552. For Rawls’s discussion of human rights more generally, see LoP 1999, pp. 9, 67, 68, 78–81, 83, and Freeman, CP, pp. 551–5. �� “We therefore take a different tack and say that basic human rights express a minimum standard of well-ordered political institutions for all peoples who belong, as members in good standing, to a just political society of peoples…. Since they must express a minimum standard, the requirements that yield these rights should be quite weak” (Rawls, “Law of Peoples” [1993] in Freeman, CP, at p. 552). For the point about a minimum, see also LoP 1999, p. 67.


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its ways. To tolerate also means to recognize…nonliberal societies as equal participating members in good standing in the Society of Peoples….” Toleration as Rawls conceives it holds between liberal societies and decent nonliberal societies. Together they make up, at least at present, the society of wellordered peoples, a loose grouping of peoples that adhere reasonably consistently to the eight-point law of peoples and who “observe a duty of non-intervention” toward each other. Rawls also identifies societies that are not to be tolerated, societies that are not acceptable in their present form. These societies are not well-ordered. Among these are outlaw states (states that are aggressive) and “burdened societies” (societies, often very impoverished, which do not have a social or cultural infrastructure capable of sustaining the rule of law or institutions of self-governance). H uman rights are widely and seriously violated in both these kinds of societies. Finally, there are some societies which, though they do not have adequate institutions of consultation or self-governance (and hence are not well-ordered), are not aggressive and do not violate human rights internally. (As one example, Rawls cites what he calls “benevolent absolutisms.”) These are to be tolerated, by liberal and decent peoples, in Rawls’s scheme. In the present section, we will concentrate, primarily, on the relations between peoples in well-ordered societies. Such peoples can be liberal or they can be decent and nonliberal; for being either of these things is fully compatible with their being societies that are well-ordered and peaceable and with their having a tradition of affording authoritative recognition and social protection of rights (for all individual persons) within their polity. So long as member societies stay true to what they now are (so long as they continue to be societies whose basic formation is compatible with full adherence to the law of peoples) they are fully acceptable. Rawls even goes so far as to suggest that “it is not reasonable for liberal peoples to adopt as part of their foreign policy the granting of subsidies to other peoples as incentives to become more liberal” (LoP 1999, p. 85; see also p. 84). This injunction at first glance is puzzling. But its purport is not hard to fathom. Just as forceful coercive interventions against decent nonliberal societies aimed at fundamental change are ruled out, as being among those negative things disallowed by toleration, so subsidies to encourage such change in these societies are ruled out as incompatible with the positive things required by toleration. Such subsidies – subsidies designed to get decent nonliberal societies to stop being what they are and to become liberal – are incompatible with the due respect and the full acceptance that is to be accorded S ee LoP 1999, p. 59, for the quote. Also sects. 7, 11, 17.2 (esp. p. 122), and pp. 45, 80. �� This in fact is one of the precepts of the law of peoples (see point four, LoP 1999, p. 37). For Rawls’s account of these not-well-ordered societies, see LoP 1999, pp. 4–5, 63, 80–81, 90, 105–6. For further discussion and criticisms of Rawls’s account of the not-wellordered societies, see Chris Brown, “The Construction of a Realistic U topia: John Rawls and International Political Theory,” Review of International Studies 28 (2002): 5–21.


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countries that meet the threshold standards for full membership in the society of peoples. “Self-determination,” Rawls says, “duly constrained by appropriate conditions, is an important good for a people, and … the foreign policy of liberal peoples should recognize that good and not take on the appearance of being coercive. Decent societies should have the opportunity to decide their futures for themselves” (LoP 1999, p. 85); they are not to be coerced or forcefully nudged into becoming something else. They are to be respected and left to find their own way. Does this mean that all interventions intended to induce change in a country’s behavior are ruled out? James N ickel writes, “Some indirect evidence about Rawls’s views comes from Michael Walzer, who says [of examples suggested to him by John Rawls], ‘The enforcement of a partial embargo against South African apartheid is a useful if unusual example. Collective condemnation, breaks in cultural exchange, and active propaganda can serve the purposes of humanitarian intolerance, though sanctions of this sort are rarely effective.’”10 N ickel takes this passage from Walzer as evidence that the lesser interventions mentioned there count as intolerance in Rawls’s eyes. N ickel seems to think criticism is one of the things Rawls intended to rule out, as impermissible, given his idea of toleration and his principle of non-intervention. H e concludes, then, “Rawls presents us with a false dilemma when he suggests that liberal peoples must either be intolerant and disrespectful of decent peoples as they impose their principles by pressure or force, or [they must] extend full equality and tolerance.” In sum, Rawls’s thinks (in N ickel’s view) that there’s no real middle ground here, and criticism (since it is a form of intolerance) falls on the side of disrespect and of impermissible intervention.11 In a variant on this line of argument, Kok-Chor Tan thinks Rawls’s notion of toleration rules out, not criticism per se, but only criticism of an official sort. “When Rawls says that liberal peoples are to respect decent peoples, what he means is that representatives of liberal peoples may not in their official capacities as state delegates, for example, and in official global forums such as the U nited N ations (UN ), criticize decent peoples.”12 10 �� James W. N ickel, “Are H uman Rights Mainly Implemented by Intervention?” in Realistic Utopia? 2006, at p. 272. In his text, N ickel adds, “In a footnote to this passage, Walzer says: ‘These examples ... were suggested to me by John Rawls.’” (For the passage and footnote cited by N ickel, see Michael Walzer, On Toleration [N ew H aven: Yale U niversity Press, 1997], pp. 21–2, 115.) 11 �� N ickel thinks that Rawls’s ‘dilemma’ is false and that there is a clear middle ground here and criticism can occupy it. See N ickel in Realistic Utopia? 2006, at pp. 272–3 (and p. 273 for the passage quoted). I will argue, in what follows, that N ickel and Rawls in fact agree on this very point. N ickel sees the value of criticism, of ‘jawboning’ as he calls it, and so does Rawls. I think the dilemma N ickel cites is in fact one that he has himself imposed on Rawls; it is not really there in Rawls’s text. 12 �� See the section on toleration in Kok-Chor Tan, “The Problem of Decent Peoples,” in Realistic Utopia? 2006, pp. 76–94, at pp. 81–4. The passage quoted is found on p. 83.


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I cannot accept the conclusions drawn here by N ickel and Tan. Rawls’s main assertion on this matter is fairly clear. “Raising [critical] objections is the right of liberal peoples and is fully consistent with the liberties and integrity of decent hierarchical societies” (LoP 1999, p. 84). In saying this Rawls makes no distinction between individuals in their everyday capacity (as citizens and persons) and those few who also have an official capacity, confining the right of criticism to the former exclusively and denying it to the latter (when they act in their official capacity). O n the contrary, the right is a right of liberal peoples (and, one would presume, of their official representatives). Criticism as such – even direct, pointed, and sometimes vigorous criticism of one liberal or decent government by another – does not offend the “liberties and integrity” of such societies. What Rawls’s theory aims at, in its discussion of toleration and non-intervention within the society of peoples, is (first of all) to rule out forceful or coercive interventions against other members (through such measures as diplomatic or economic or military sanctions) except when such measures might be justified by the basic norms, as found in the eight points, of the law of peoples.13 A nd (second) to rule out measures that undermine a people (a body politic) that in fact is conforming to the norms of the law of peoples. Criticism does neither of these proscribed things; it is not a form of forceful intervention and it is not something that will undermine a liberal people or a decent nonliberal one. Criticism can be given but it can also be shaken off. Mere criticism is not a form of coercion; it involves no threats.14 C riticism is consistent with the proper toleration and with the principle of non-intervention that Rawls invokes as part of the law of peoples. We have, accordingly, identified something of a middle ground here between the positive and negative poles of Rawls’s account of toleration and seen that criticism can occupy it. We are now in position to ask whether, in the interactions of member states within the society of peoples, there are other forms of permissible interference, stronger than criticism, which can be allowed within Rawls’s doctrine of toleration. Let us consider two possible examples. The first example is that of breaks in cultural exchange. The “cultural” interventions referred to here include such things as refusals to engage in scholarly exchanges and invitations, in TV and movie and artistic exhibitions or performances, in sports competition or invitations, and the like. Interventions of this sort (for example, the widespread boycott of South African rugby football) proved significant, to a degree, in the international campaign against South African apartheid policies. More recent instances of cultural intervention include �� S ee LoP 1999, p. 84. The governing standard throughout is international public reason, as given in the eight principles of Rawls’s law of peoples, including therein his short list of human rights. For Rawls’s idea of international public reason, as just described, see LoP 1999, pp. 55–7, 123. 14 �� For a more extended account of coercion, see Rex Martin, A System of Rights (O xford: Clarendon Press, 1993), pp. 266–8, 392–3. 13


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attempts by two different British university teachers associations (unions) to break off scholarly relationships between British and Israeli academics. In the first of these instances (2005) the decision (since rescinded) by one of the unions was to sever links with two Israeli universities, Bar-Ilan and H aifa; in the second (2006) the vote by the other union was to boycott – or countenance boycotting – relations between British and certain Israeli academics (over the issue of the latter’s support of Israel’s policy toward and treatment of the Palestinians).15 A second principal example, a recurrent one, is non-cooperation by European courts and law enforcement agencies toward American ones over the issue of capital punishment. Since the U S Supreme Court’s 1976 decision in Gregg v. Georgia (428 U S 153), allowing the death penalty under certain conditions, there has in fact been a growing gulf, between the U S and Europe, in official views on the use of that penalty. Protocol Thirteen to the European Convention on H uman Rights abolished the death penalty altogether; this protocol came into force in July 2003; at that time it had been signed (subject to final ratification) by 41 of the 45 member states of the Council of Europe. Further, European states (basing their actions on a 1989 decision by the European Court) have refused to extradite fugitives to the U S “unless they get explicit assurances that these persons will not be subjected to capital trials.” The pressure here has not come solely from European institutions, though European nations probably continue to be the prime movers. Since 1997, the UN Commission on H uman Rights has each year called for a moratorium on death sentences. In the recently established International Criminal Court and in the Tribunals concerned with war crimes in former Yugoslavia and in Rwanda, the death penalty has been excluded, even for the worst of crimes against humanity. And Amnesty International and other human rights advocacy groups regard a nation’s having or using the death penalty to be a violation of human rights norms.16 15

�� In the interim these two British unions have merged to form the U niversity and College U nion (U CU ). At its inaugural congress (2007), a resolution to “consider the moral implications of existing and proposed links with Israeli academic institutions” was adopted by the U CU delegates, by a vote of 158–99 (see New York Times, May 31, 2007, at p. A11). And, almost immediately afterwards, the largest British labor union (of public service employees) announced that it would take up a resolution calling for consideration of boycotts (see New York Times, June 1, 2007, at p. A13). H owever, after receiving advice from counsel, the teachers’ union decided that it would be illegal for its members to boycott Israeli academic institutions. Accordingly, the union has decided not to hold debates around the country on the merits or advisability of such boycotts (see New York Times, September 29, 2007, at A7). 16 �� For these points (concerning Protocol Thirteen, the UN Commission on H uman Rights, European extradition law, and Amnesty International) I have drawn on N ora V. Demleitner, “The Death Penalty in the U nited States: Following the European Lead?,” 81 Oregon Law Review 131 (2002): 131–59. For the passage quoted in the previous paragraph, see p. 145 of Demleitner’s paper. I should add that the UN Commission has recently been reorganized, in part at U S insistence.


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As a result of these various European court decisions, protocols, and the pressures exerted by Amnesty International and the UN Commission on H uman Rights and other political agents, many European countries now refuse in capital cases to turn over fugitives, testimony by witnesses, or other forms of evidence to U S courts, federal or state, and to American law enforcement agencies. For example, G ermany and France made such refusals in the case of Zacarias Moussaoui in his trial in U S District Court, where the U S prosecutors sought the death penalty and the jury sentenced him in May 2006 to life in prison.17 The two examples I have cited (breaks in cultural exchange, non-cooperation of European with American courts) are recognizable, but they are significantly different. The cultural breaks were strictly private or associational interventions, but the judicial non-cooperation was at the official, governmental level. It is difficult to say, but if the cultural breaks represented official policy (or had come about in response to strong governmental pressures in their favor), it would be hard to claim that such breaks fully satisfied the positive requirements of Rawls’s doctrine of toleration, the requirement of according due respect and affirmation of good standing to the nation against whom the breaks were aimed. The matter here is not wholly clear; suffice it to say, government-sponsored cultural breaks seem to be something of a gray area in terms of Rawls’s theory. But the non-cooperation of European courts is an official, government-sponsored action.18 N onetheless, it does not seem to run afoul of Rawls’s doctrine of toleration. Judicial non-cooperation, though coercive, is not a form of forceful intervention; it might impede some court proceedings in the affected country but it by no means impedes the normal course of the rule of law there (since the non-cooperation is not general but extends only to death penalty matters). N or is it the case that noncooperation cashes out as saying that the societies against whom it is deployed 17

�� Moussaoui had taken flight lessons at two places in the U S and had aroused suspicions. At the time of the 9/11 attacks, on the World Trade Center and the Pentagon (in 2001), he was in custody. H e was later tried and charged, among other things, with complicity in and advance knowledge of these attacks and of failure to inform authorities of the imminent attacks. 18 Extradition is typically governed by treaties and other agreements, and many countries have incorporated into these agreements their refusal to extradite individuals to states that retain capital punishment (or their refusal to extradite them to such states when those states won’t give assurances that the death penalty will not be imposed in an instant case). Increasingly these agreements do not govern the case; rather, courts (international or constitutional) and UN H uman Rights bodies, following their own standards, frequently take a hand in making the final decision. Since this leaves much room for judicial decisionmaking and for discretion by officials, and since extradition, deportation, evidence sharing, etc. are often not handled routinely in the light of existing agreements, I have described cases where this is so (and where, as a result, “retentionist” countries don’t get what they’re asking for) as examples of non-cooperation. For helpful discussion here see, William A. Schabas, “Indirect Abolition: Capital Punishment’s Role in Extradition Law and Practice,” 25 Loyola of Los Angeles International and Comparative Law Review 581 (2003): 581–604.


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are societies whose basic formation is incompatible with full adherence to the law of peoples. Accordingly, such societies are not being coerced or nudged into becoming something else; rather, they are being urged to change in one particular aspect only – to make a change which, if it came about, would make them no less liberal or decently nonliberal than they are now. In these respects judicial noncooperation is not a form of forceful intervention (and probably not a major or deal-breaking form of coercion). Judicial non-cooperation, so understood, is meant to fit into a world (a Rawlsian world) in which there is and will continue to be significant differences of opinion over both allowed and disallowed practices. It is consistent with the proper toleration and with the principle of non-intervention that Rawls invokes as part of the law of peoples. We have, in this analysis, identified a somewhat wider middle area between the positive and negative poles of Rawls’s account of toleration and seen that forms of intervention stronger than mere criticism can occupy it. N ow, I want to turn to a rather different case, one not directly contemplated in Rawls’s theory. In Rawls’s theory there is a sharp divide between two main cases, the ideal and the non-ideal. The ideal case is one where nations are well ordered. And these nations fully and consistently comply with the norms of the law of peoples, and for purposes of simplification (or of idealization, as some would call it) are assumed to do so invariably (see LoP 1999, pp. 4–5, 89). The non-ideal case, in contrast, is one where nations or societies either flout the law of peoples in many ways and on multiple occasions (as do the so-called outlaw states) or are so ill organized and so debilitated by their lack of suitable institutions and practices (and by their lack of material well-being) that they’re simply unable to conform to the law of peoples. Even though there is this radical dichotomy in Rawls’s theory between full compliance and full failure to comply, these two cases are the ones he’s mainly concerned with in the Law of Peoples. But there is such a thing as partial compliance by a well-ordered people, such a thing as a reasonably full compliance in general while still allowing for imperfect, defective compliance on given occasions. This at least is a possibility, and I want to turn to an example of that possibility now.19 In the summer of 1956 the American government withdrew its offer of a loan to Egypt to enable that country to build a massive dam on the N ile. A few days later G amel Abdel N asser, the leader of Egypt at the time, nationalized the company that operated the Suez Canal and Egypt took over the operation of the Canal. The company in question, which had the Suez concession, was technically 19 �� Rawls describes parts O ne and Two of LoP 1999 as “Ideal Theory,” the first concerned with liberal peoples and the second with decent nonliberal people. Part Three, on the other hand, is concerned with “N onideal Theory”; it takes up questions of just war against “outlaw states” and development aid to radically “burdened” societies. For discussion of Rawls’s distinction of ideal/nonideal see LoP 1999, pp. 4–5, 85, 89–91; and see the helpful discussion in Alistair Macleod, “Rawls’s N arrow Doctrine of H uman Rights” in Realistic Utopia? 2006, pp. 134–49, at pp. 144–5.

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Egyptian (under an 1866 convention), though the company itself was under mainly French management and most all its shareholders were European, the majority of them British. N asser promised to repay the shareholders (at fair market price) in compensation for the seizure. H e intended among other things to use the profits from the Suez Canal operation to fund the building of the Aswan high dam. And to serve that aim, which would involve keeping the Canal profitable, the Egyptian operation was reasonably efficient.20 In late O ctober 1956, at the time of the denouement of the H ungarian Revolution and just before the American presidential election, one of the signal events in the history of the twentieth century (and of the Cold War in particular) unfolded. France and Israel revived an earlier plan to act militarily in concert against N asser; Britain joined them. Thus it transpired that Israel attacked from the East, through Sinai, and quickly reached a point fairly near the Canal. France and Britain first issued 12-hour ultimatums to both Israel and Egypt to pull back, believing that Egypt would find the ultimatum unacceptable; and then (after initial bombings of Egypt, when Egypt rejected the ultimatum), France and Britain invaded and attempted to re-occupy the Canal, on the pretext that they were there on a peacekeeping mission designed to separate the Israeli and the Egyptian armies and end the assault. The Americans had been kept completely out of the loop.21 What happened next is remarkable (though even to this day it is not widely known).22

20 �� In writing this brief account I have drawn on several sources: Kevin Kyle, Suez: Britain’s End of Empire in the Middle East (London: I. B. Tauris, 2003), Chs 6–7 and p. 572 (this book was originally published in 1991, London: G eorge Weidenfeld and N icolson; the revised edition of 2003 contains two new chapters, Chs 30 and 31); Steven Z. Freiberger, Dawn Over Suez: The Rise of American Power in the Middle East, 1953–1957 (Chicago: Ivan Dee, 1992), pp. 150–57 and Ch. 7; Michael Coles, “Suez 1956,” Naval War College Review 59/4 (2006): 100–18, at p. 102. See also David Fromkin, “Eyeless in Suez,” The New Republic (July 29, 1991): 39–42; Fromkin, “Stuck in the Canal,” The New York Times (O ctober 28, 2006), at p. A27. 21 �� Interestingly, the concession under which the Suez Canal Company operated was slated to expire in any case in 1968, at which time the Canal concession would have reverted to Egypt. For a more detailed account of the main political and military events, see Kyle, Chs 18–20, 24–5; Freiberger, Ch. 8. T he secret memorandum (typed in French and dated 24 O ctober 1956) of the discussion and agreement on coordinated military action, signed by representatives of Britain, France, and Israel, was first published in Robert Rhodes James’s book on the British Prime Minister at the time of Suez (Anthony Eden [London: G eorge Weidenfeld and N icolson, 1986]). For discussion, see Kyle, Ch. 17. The text of the memorandum (“The Protocol of Sèvres,” as it is called) can be found in Kyle, Appendix A, at pp. 587–9, and in Freiberger, p. 259, n. 110. 22 �� The facts described below in this paragraph did not come to public view until after the opening of the British public records on Suez in 1987 and of the comparable official records of the U S in 1990.


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[The U nited States acted] with paralyzing effectiveness. It did so by financial maneuverings unintelligible and invisible to the public….Britain lacked the financial resources at the time to maintain itself, and relied upon American support. This support the U nited States now shut off. Moreover, America kept the International Monetary Fund as well from helping England. Thus the British Treasury was suddenly faced with the prospect of financial disaster: a run on the pound, the collapse of the currency, a plunge into chaos. U ntil Macmillan [the Chancellor of the Exchequer] told them, not even his colleagues in the cabinet were aware of what the U nited States was doing and how it threatened Britain. The U nited States was turning back the Suez expedition, but effectively in secret….Macmillan [swung] the cabinet behind his view that the invasion had to be halted.23

G reat Britain had, like much of Europe, been devastated by the Second World War, and it was heavily dependent, even as late as 1956, on American aid. But this aid was not viewed by either nation as charity or as a mere gift. This aid provided for a mutually advantageous arrangement between the two nations, one that gave rise to legitimate expectations of the aid’s continuance on both sides. Why, then, did the U S act against its own allies in such a decisive way? Dwight Eisenhower, the American President, thought there was no legitimate case to be made for forcible intervention to counteract what Egypt had done with the Suez Canal, and he had privately and publicly warned the French and British governments repeatedly against using force in this matter. As Eisenhower had said earlier in a press conference, “We established the U nited N ations to abolish aggression and I am not going to be a party to aggression.”24 Moreover, both Eisenhower and John Foster Dulles, the American Secretary of State, had a deep-seated “Wilsonian” 23 �� For a detailed and balanced discussion of American refusal to support the pound at this time, see Diane B. Kunz, The Economic Diplomacy of the Suez Crisis (Chapel H ill: U niversity of N orth Carolina Press, 1991), Ch. 6 and p. 193. See also Freiberger, pp. 190– 203, Kyle, p. 581, Coles, p. 115. A merican pressure on the pound had caught Macmillan’s attention early on (as described in the passage quoted, from Fromkin, “Eyeless in Suez,” p. 42). But that pressure was being exerted not only to effect a ceasefire but also to force a full withdrawal of Anglo-French troops from Egypt. By the end of N ovember the Sterling crisis had worsened considerably; the Americans relented, in early December, only after Britain and France made a firm and accepted commitment to withdraw their troops. Kunz’s account is especially helpful in laying out the main background factors in the Sterling reserves crisis, including Britain’s desire to keep the pound at a fixed exchange rate with the dollar, Britain’s desire to preserve the pound as a world trading currency (especially within the so-called Sterling area, comprising mainly the Commonwealth countries), and the U K’s need to keep Sterling reserves high enough to backstop British purchases of oil (on this last point see Kunz, p. 146; also Kyle, p. 386). 24 �� This remark was made in September 1956, one of Eisenhower’s many warnings to Britain and France against the use of force in the Suez crisis. See Freiberger, p. 175.


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distaste for colonial and imperialist arrangements (and the schemes and values that perpetuated them). “The president firmly believed the age of colonial wars was past,” and he was not willing to countenance what he believed to be a colonialist (and aggressive) military strike by Britain and France (and by Israel). O f course, there were other factors that shaped the American response besides the ones I’ve just mentioned.25 It is difficult to say which thing is the more amazing here: that the U nited States acted without bluster and so effectively, or that it did the right thing. But was it the right thing? If we assume that Britain was close enough to meeting Rawls’s standards for membership in the society of well-ordered peoples to deserve toleration, one might argue that the U S owed a duty of non-intervention to Britain (supposing the U S, also, to count as such a member). And didn’t that preclude such things as America’s taking coercive or forceful military, economic, or diplomatic sanctions against the British? There’s a real question, then, whether America’s use of forceful sanctions against Britain could be justifiable on law of peoples grounds. I want to suggest how such a question might be answered. The ground of toleration here is that those peoples who actually accept and conform to the main points in that law are the societies whose political and social systems should be tolerated; they are the ones who have a right to be tolerated. N ow, one of the leading claims in the law of peoples is that “peoples have … no right to instigate war for reasons other than self-defense” (LoP 1999, p. 37); “no state has a right to war in the pursuit [merely] of its rational … interests” (LoP 1999, p. 91). The law of peoples was intended to rule out aggressive wars altogether, to rule out military attacks on other countries, except in a narrow set of cases. By and large, this narrow set is limited to military responses in cases of self-defense against an existing attack, of forcibly aiding other countries that are under such attack, and perhaps of diminishing or ending grave human rights violations perpetrated on people by their own government. Egypt in 1956 would probably be placed in the same grouping as benevolent absolutisms, though perhaps in a lower tier of that grouping. Egypt was not well ordered. N asser was in effect a military dictator and the country did not have adequate institutions of consultation or self-governance. Egypt was sometimes aggressive but on the occasion in question it had not been aggressive; indeed, it was the victim of aggression. N asser’s government could not be said to honor 25

�� See Feiberger, pp. 35, 44, 160–66 (and, for the passage quoted, p. 160); also Kyle, p. 366, Kunz, pp. 122, 125. Among other notable considerations affecting the U S were: (i) America’s ongoing Cold War efforts (one of Dulles’ particular concerns), in particular those designed to gain favorable standing in the Middle East and thus to use that to advantage against the Soviet U nion, (ii) the need to assure the flow of oil to the West , especially to Europe (a flow which had been dramatically disrupted by Egypt’s blocking of the Suez Canal and by the disabling of several pumping stations in Syria, both of them actions taken in response to the attack).


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human rights. But Egypt was neither a notorious abuser of human rights within its boundaries nor was it a deeply impoverished ‘burdened’ society. O ne might say that it was a “passable” absolutism.26 Accordingly, what the British did would count as an aggressive military action and therefore as violative of one of the central tenets of the law of peoples. It would be a serious failure in conformity to that law. O ne could argue, then, that the ground of toleration did not cover British action in the case of Suez. Thus, what might be called for here are forceful sanctions against Britain –measures designed to force an end to its aggressive military attack on another country, on that given occasion. Rawls indicates that such sanctions should, if possible, be taken up in a certain order, starting with less severe sanctions (diplomatic and economic ones) and proceeding to the more severe (military force), only if need be (LoP 1999, pp. 93–4, n. 6). If we factor in the point about grading forceful sanctions and starting where possible with less severe sanctions (in the hope these will work), then what the U nited States did, against Britain, in the Suez crisis was justifiable on law of peoples grounds. There is, however, yet another serious problem with this analysis that needs to be faced. Rawls says, about the human rights he has singled out (as typified by his short list of human rights), that the fulfillment of these rights is “sufficient to exclude justified and forceful intervention by other peoples, for example, by diplomatic and economic sanctions, or in grave cases by military force” (LoP 1999, p. 80). H ere, then, the fact that a nation adheres to human rights norms at an acceptably high level, as presumably Britain had done, sets a constraint (amounting to an absolute proscription) on the use of forceful sanctions against it by any other member of the society of peoples. Since the argument to date has not made the case that the British were violating human rights in what they did, the use of forceful sanctions by the U S against Britain in the Suez case would appear to be unjustifiable, by law of peoples standards. This counterargument has merit for the general case (where, for example, the failure to keep a given trade agreement, though a violation of the law of peoples, is not itself a violation of human rights). But it may not be equally sound in the Suez case. The general presumption here is that aggressive military action (an unjustifiable invasion, say) will involve serious violations of human rights (in the killing of soldiers defending against that invasion, in the loss of civilian life there through “collateral damage” or lack of due care, in the general loss or diminution of significant liberties on the part of inhabitants that invasions and occupations typically entail). The honoring of human rights (article 6, LoP 1999, p. 37) is not simply one of the articles of the law of peoples, detachable from the others; it runs throughout that law and surfaces at a number of points, especially as regards the 26

�� I take the term ‘passable’ from Thomas Pogge. See his paper “The Incoherence Between Rawls’s Theories of Justice,” in Symposium: “Rawls and the Law,” Fordham Law Review 62 (2004): 1381–2285. (Pogge’s essay is found on pp. 1739–59 of the symposium; see p. 1758 for the term.)

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post-World War Two additions to that law. The prohibition on wars except in selfdefense (article 5) is clearly grounded on the enormous violation of human rights that war typically involves and thus on the wrongness, in light of human rights, of any initiation of war on grounds other than self-defense (or the defense of others) against existing and overt aggression. The requirement that “nations are to observe certain specified restrictions in the conduct of war” (article 7) is meant to prohibit human rights violations in time of war or military occupation; thus, these restrictions rule out direct targeting of civilians or gross failures in due care that result in unacceptably high levels of civil casualties, and they rule out subsequent mistreatment of civilians by occupying forces, and so forth.27 And the duty to assist other societies living “under unfavorable conditions” (article 8), conditions so severe as to condemn the bulk of inhabitants there to extreme poverty, chronic malnutrition, endemic disease, and often early death, is underwritten in large part by the human right to life and thence to subsistence.28 If the case can be made that an invasion by a nation was an aggressive military intervention, and evidence of wrongful deaths and other serious human rights violations can be produced or supposed in prospect, then the constraint (imposed by that nation’s general conformity to human rights), a constraint that disallows the use of forceful sanctions against it, is removed in that one given instance. Arguably, such a case could be made regarding the British invasion of Suez; the bar that honoring human rights sets against forceful interventions doesn’t hold here. The forceful economic intervention launched by the U S against the British pound (designed to halt and turn back Britain’s aggressive military invasion) would appear to be justifiable on law of peoples grounds. We have, I think, explored Rawls’s idea of toleration within the society of wellordered peoples in sufficient detail to have gained, at this point, a reasonably clear sense of its main features. Toleration between peoples involves two kinds of things – things that each member society should avoid doing (such as taking coercive or forceful military, economic, or diplomatic sanctions against other members) and things that each should do (such as affirming other member societies, on their own terms, as full partners and showing them due respect). I have argued that 27 �� For discussion of these and other just war considerations see my paper “Just Wars and H umanitarian Interventions,” Journal of Social Philosophy 36/4 (2005): 439–56. See also Realistic Utopia?, Ch. 1, at pp. 12–14. 28 �� O n LoP 1999, p. 65, Rawls first identifies a human right “to life (to the means of subsistence and security).” And then, regarding subsistence, he cites with approval H enry Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy, 2nd edn (Princeton: Princeton U niversity Press, 1996), p. 23. O n that page Shue briefly lists “unpolluted air, unpolluted water, adequate food, adequate shelter, minimal preventive public health care” as among the minimal requirements for human subsistence. For further detail and argument, see Shue, Basic Rights, Chs 1, 2, 5, pp. 150–52, and the Afterword (pp. 153–80, added in the 2nd edn). Shue’s book was originally published in 1980 (1st edn); the text and pagination are identical, in the two editions, in the first six chapters (up through p. 152).


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there is a middle ground (between these two poles) that would allow criticism, even vigorous criticism, to occur and sometimes even stronger measures (such as judicial non-cooperation by European with American courts in trials involving the death penalty). Criticism and these stronger measures are allowed because they don’t count as coercive at all, or not as strongly coercive forceful interventions, and because they’re compatible with the affirmation and due respect member nations owe one another. I suggested also that in a real world setting – where less than full compliance typically holds true – forceful sanctions, leveled by one member nation against another, are sometimes warranted on given occasions in response to severe violations of the law of peoples. This was so, as in the Suez case of 1956, where one of the member nations had, in the course of violating an article of the law of peoples, seriously dishonored one or several important human rights and where in consequence powerful economic sanctions had been invoked by another of the member nations.29 §3. Humanitarian Interventions I want to turn now to a very different set of issues. H ere we have no basis for toleration at all. Instead, nations do turn to extremely forceful interventions, typically military in character or backed by the threat of military force, as a response to an aggressive invasion of one nation by another or (for a second example) as a response to severe or debilitating (and repeated) human rights violations. This, in broad brush strokes, is the situation that obtains, Rawls thinks, between members of the society of well-ordered peoples, on the one hand, and ‘outlaw’ states and ‘burdened societies,’ on the other.

29 My emphasis here on real world conditions (and on less than full or perfect compliance) is not idle; it is something that Rawls contemplates in The Law of Peoples as one of its essential features. Rawls says his account is a “realistic utopia” and he devotes section 1 of the book to spelling out this idea. The idea is that the great evils of human history might be extirpated and the current international order might be supplanted by a different one, one organized on the principles of the law of peoples. This “scenario is realistic,” Rawls says; “it could and may exist” (LoP 1999, p. 7; see also pp. 127–8, the stirring concluding section of The Law of Peoples). Rawls’s constrained realism requires only that we take people “as they are” and that the relevant “first principles and precepts be workable and applicable to ongoing social and political arrangements” (LoP 1999, p. 13; see also pp. 7, 10). H e does not require of his realistic utopia that institutional and practical compliance be perfect (that is, full and invariable) but only that it be what could reasonably be expected given “the deep tendencies and inclinations of the social world” (LoP 1999, p. 128). T hus, we must assume in a real world setting a reasonably full (but, on given occasions, a still very imperfect) level of compliance. And my argument here is meant to address this very point.

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The idea of intervening to prevent repeated and grave human rights abuses inflicted by a government on its own population is one of the important elements in the law of peoples added since World War Two. Such interventions are often called humanitarian interventions.30 Consider here (as examples of severe violations of human rights) genocide and “ethnic cleansing,” slavery, and warlord-induced famine and starvation, all of them cases from our own day. I would suggest that, although Rawls would endorse “forceful” diplomatic and economic measures against many serious violations of human rights (see LoP 1999, p. 80), he seems to reserve armed intervention solely for such matters as mass murder and slavery, where the offending state has not amended its ways under the pressure of diplomatic and economic measures.31 O ne could say a word in defense of Rawls’s rather broad approach to issues of enforcement. The list of human rights agreed to by liberal and decent peoples has a definite, and rather complex, normative foundation. The human rights on that list can be justified by deep and accredited moral standards.32 Accordingly, where human rights are violated, persons (or governments) acting on their own or in concert with others are entitled to do something. N ow, we may not have clear norms for when forcible action, in particular action arising to the level of military intervention, is allowed or enjoined. We don’t, for example, have such norms for dealing with so-called ethnic cleansing – forced migrations of large numbers of people from their homes, migrations that are meant to be permanent, migrations that are typically accompanied by largescale and horrific acts of murder, rape, and pillage. N onetheless, a normative ground for taking action to stop or reverse severe violations of human rights is in place throughout. This much is settled. But actually

30 �� Though Rawls is quite clear on the point that strong and coercive force can be used to counter serious human rights violations by aggressive “outlaw” states (see LoP 1999, p. 81), he definitely does not limit the idea of forcible sanctions against such human rights violations to just that one case, of aggressive “outlaw”states, states that endanger peace between nations. Rawls regards military action to end severe human rights violations per se to be justifiable, as a last resort; see LoP 1999, pp. 8, 36, 49, 81 (note 26), 90n. 31 �� The only time Rawls associates his notion of violations serious enough to warrant military intervention with a specific example is in his discussion of the Aztecs in n. 6 on pp. 93–4. There he singles out “slavery and … human sacrifice.” 32 �� For discussion of this important point, see my paper, “Rawls on H uman Rights: Liberal or U niversal?” in B.A. H addock, Peri Roberts, and Peter Sutch (eds), Principles and Political Order: The Challenge of Diversity (London: Routledge, 2006), pp. 192–212; also three recent papers by David Reidy: (a) “An Internationalist Conception of H uman Rights,” Philosophical Forum 36 (2005): 367–97, (b) “Political Authority and H uman Rights,” in Realistic Utopia? 2006, pp. 169–88, (c) “Three H uman Rights Agendas,” Canadian Journal of Law and Jurisprudence 19/2 (2006): 237–54.


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determining an appropriate and effective response will typically, perhaps always, involve practical judgment and some appeal to conventional considerations.33 Sometimes forcible military intervention to prevent grave violations of human rights within a country can be justified. This is probably an emerging consensus view today (one in which Rawls shares). But it is not a unanimous view; indeed, it may not even command majority assent. Many persons – including people from an international law background or leaders of countries like China – would deny it outright.34 Within the emerging consensus view favoring humanitarian intervention there is, however, a considerable variety of opinions as to who has legitimate authority, as it is called in traditional just war theory, to authorize an armed military intervention to protect human rights from grave violations. Some say that only the UN can legitimately authorize such interventions. O thers say that either the UN or some regional international political authority can legitimately so authorize.35 And some (most notably Walzer, in his earlier writings) have argued the virtues, in extreme cases, of unilateral intervention (of forcible intervention by one nation within the borders of another to prevent or stop grave violations of human rights there). Examples usually cited (from the last thirty years or so) are India in East Pakistan (now Bangladesh), Vietnam in Cambodia, and Tanzania in U ganda.36 33

�� “[H ]uman rights generate a secondary obligation to do something, if we can, to protect people outside our society against their most egregious violation” (Thomas N agel, “The Problem of G lobal Justice,” Philosophy and Public Affairs 33/2 [2005]: 113–47, at 132). N agel adds, immediately, that such intervention is “practically impossible, on a world scale, without some institutionalized methods of verification and enforcement” – a point I will turn to shortly. See also N agel, pp. 134–6; my account in the present chapter disagrees fundamentally with what N agel says about LoP 1999 in these pages – in particular, with his claim that Rawls grounds the toleration of peoples within the society of peoples on their presumably Westphalian equality as sovereign peoples (esp. p. 136). 34 �� For examples from each grouping, see Allen Buchanan, Justice, Legitimacy, SelfDetermination: Moral Foundations for International Law (O xford: O xford U niversity Press, 2004), Part 4 (“Reform”); also Bruno Coppieters and N ick Fotion (eds), Moral Constraints on War: Principles and Cases (Lanham: Lexington Books, 2002), pp. 32, 43, 251, 253, 255. 35 �� For good overview discussions on the question of legitimate authority, see the chapter by Bruno Coppieters (“Legitimate Authority”) in Moral Constraints on War, Ch. 2, pp. 41–58, esp. p. 50, and the chapter by Shi Yinhong and Shen Zhixiong (“After Kosovo: Moral and Legal Constraints on H umanitarian Intervention”) in Moral Constraints on War, Ch. 13, pp. 247–63. T he case for exclusive UN authorization is discussed in both these chapters (in Ch. 2 at pp. 49, 50; in Ch. 13 at p. 231). See also p. xvii. And the case for the suitability of either UN or regional political authorization is discussed, in each chapter, at pp. 50, 256 respectively. 36 �� For the advocacy of unilateral intervention here, see Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd edn (N ew York: Basic Books, 2000), preface to the third edition, esp. pp. xiii– xvi, and Ch. 6, esp. pp. 105–8; also Walzer,

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A recent example is the U S mission of rescue and relief for resident Kurds in northern Iraq in 1991, after the conclusion of the G ulf War, when the Kurds were attacked by the Iraqi government and forced to flee into the mountains, in wintry conditions.37 Rawls suggests that to cope with the problem of such interventions the “Society of Peoples needs to develop new institutions and practices under the Law of Peoples to constrain outlaw states when they appear” (LoP 1999, p. 48). But he adds that this action can be done “within institutions such as the U nited N ations or by forming separate alliances of well-ordered societies” (LoP 1999, p. 93). It is clear that this society of peoples, as Rawls calls it, is not as extensive as today’s UN . It is, rather, simply the liberal peoples or, for that matter, the decent peoples (both liberal and nonliberal) acting in concert.38 It would seem that Rawls, were these new institutions and practices to begin to emerge, would side with those who say that either the UN or some regional international political authority (for example, the EU ) can legitimately authorize armed military interventions to protect human rights from existing grave violations. But there seems to be no insistence on his part that the UN , as currently constituted, must be involved; rather, “separate alliances of well-ordered societies” may do the job. An important idea lies behind Rawls’s view – the idea that there is a present and continuing need to build international institutions and supranational agencies to affirm and protect human rights. Rawls’s theory is part of an overall and ongoing project, part of the internationalization of relief and rescue that I have been describing. And one of his main goals here is to create and strengthen institutions that can put forceful diplomatic and economic pressures on seriously errant governments and, in the extreme case, forcibly intervene in the internal affairs of a country to prevent the government there or some group there from severe, shocking, massive violations of human rights. Rawls (with his emphasis on peaceable regional confederations or leagues) provides an important internationalist alternative to the view that the UN is the exclusive authorizing agency for humanitarian intervention. Indeed, a main point of Rawls’s notion of a society of peoples – made up of liberal and decent nonliberal “The Argument about H umanitarian Intervention,” Dissent (Winter 2002): pp. 29–37, at p. 31– 3. (The paper from Dissent, just cited, is reprinted as “Arguing for H umanitarian Intervention,” in N icolaus Mills and Kira Brunner (eds), The New Killing Fields (N ew York: Basic Books, 2002), pp. 19–35; the passage cited can be found there at pp. 23–7.) See also Coppieters and Fotion (eds), Moral Constraints on War, p. 50 and n. 27 on p. 262. 37 �� This particular example is not cited from Walzer. For discussion of O peration Provide Comfort (as the U S intervention was called), See Thomas Ricks, Fiasco: The American Military Adventure in Iraq (N ew York: Penguin, 2006), pp. 7–10; for some false conclusions drawn from its success, see pp. 98, 107. 38 �� The only extended discussion Rawls offers is that of a confederation of liberal peoples (see LoP 1999, pp. 42–3 and the important note on p. 43; also pp. 36, 93, 111–13).


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societies – is to provide a venue and an impetus for institutionalizing just such relief and rescue. §4. A Brief Retrospective Rawls maintained in A Theory of Justice that his principles of justice not only would be unanimously chosen over alternatives in an ideal arena for decision making, which he called the “original position,” but in time would also be universally or near universally endorsed by real persons in a real society governed by those principles. O ver the years, though, Rawls came to have considerable dissatisfaction with this approach and he began to reconfigure his basic theory in new and interesting directions. Rawls thought that this new theory (which he developed in his second book, Political Liberalism), solved the main problem he had identified in his own earlier theory of justice. It did so by taking account of the fact that in a free and open society there is very likely going to be an irreducible and continuing pluralism (a “reasonable” pluralism, Rawls called it) of ultimate moral and religious beliefs. Even though Rawls first sketched a brief discussion of just war and other principles of the “law of nations” in A Theory of Justice (section 58), The Law of Peoples owed more to his new theory and its important idea of reasonable pluralism than it did to A Theory of Justice. Rawls claimed that The Law of Peoples is meant to complete his domestic theory of liberal democratic justice; it is meant to set out the principles by which a liberal democratic people is to conduct its foreign policy. To this end, Rawls tried to outline a constructive place in the international order that had emerged since the Second World War for his doctrine of reasonable pluralism. H e did so in his account of an international society of well-ordered peoples, of peoples both liberal and nonliberal.39 The monumental theory that takes shape in these three books is probably the most extended and most significant contribution to political philosophy in the English-speaking world since Mill. But the rich and continuing interpretive and evaluative debates surrounding Rawls’s domestic theory of justice and its extension into the international arena are perhaps the main legacy of Rawls. In the spirit of interpretation (and with the help of examples), I have tried in the present chapter to develop a definite and distinctive view of what Rawls has said in The Law of Peoples about the character of the toleration that must exist between wellordered peoples and about allowed-for coercive interventions at the international 39 �� Much of the text of this section is adapted from things said in David Reidy and Rex Martin, “Introduction,” in Realistic Utopia? 2006, Ch. 1, at pp. 4–7. The two earlier books by Rawls cited in this section are A Theory of Justice (Cambridge, MA: H arvard U niversity Press, 1971; rev. edn 1999), and Political Liberalism (N ew York: Columbia U niversity Press, 1993); the paperback edition of 1996 adds important new material to the hardback version of 1993.


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level. In doing so, I have tried to show some of the hard edges as well as some of the unresolved issues in the view Rawls developed.40 Bibliography Brown, Chris, “The Construction of a Realistic U topia: John Rawls and International Political Theory,” Review of International Studies 28/1 (2002): 5–21. Buchanan, Allen, Justice, Legitimacy, Self-Determination: Moral Foundations for International Law (O xford: O xford U niversity Press, 2004). Coles, Michael, “Suez 1956,” Naval War College Review 59/4 (2006): 100–118. Coppieters, Bruno, “Legitimate Authority,” in Bruno Coppieters and N ick Fotion (eds), Moral Constraints on War: Principles and Cases (Lanham: Lexington Books, 2002), pp. 41–58. Coppieters, Bruno, and N ick Fotion (eds), Moral Constraints on War: Principles and Cases (Lanham: Lexington Books, 2002). Demleitner, N ora, “The Death Penalty in the U nited States: Following the European Lead?,” 81 Oregon Law Review 131 (2002): 131–59. Freiberger, Steven, Dawn Over Suez: The Rise of American Power in the Middle East, 1953–1957 (Chicago: Ivan Dee, 1992). Fromkin, David, “Eyeless in Suez,” The New Republic (July 29, 1991): 39–42. ———, “Stuck in the Canal,” The New York Times (O ctober 28, 2006), p. A27. James, Robert, Anthony Eden (London: G eorge Weidenfeld and N icolson, 1986). Kunz, Diane, The Economic Diplomacy of the Suez Crisis (Chapel H ill: U niversity of N orth Carolina Press, 1991). Kyle, Kevin, Suez: Britain’s End of Empire in the Middle East (London: I. B. Tauris, 2003), Chs 6–7 and p. 572. This book was originally published in 1991, London: G eorge Weidenfeld and N icolson; the revised edition of 2003 contains two new chapters, Chs 30 and 31. Martin, Rex, A System of Rights (O xford: Clarendon Press, 1993). ———, “Just Wars and H umanitarian Interventions,” Journal of Social Philosophy 36/4 (2005): 439–56.

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�� The present chapter is based on two versions that I presented earlier. O ne was in a symposium session at the American Philosophical Association’s Central Division meeting in Chicago in April 2007. I am grateful for comments there to Joe Van Zandt, Don Scheid, Ann Cudd; and for written comments to David Reidy. The other was at a conference on the legacy of Rawls, held at York U niversity (Canada) in August 2007. I found the comments there by the other participants, especially those by Jerry G aus and Jon Mandle, very helpful. I am indebted as well to David Fromkin for bibliographical suggestions on Suez (1956). My discussion in section three of the present chapter draws on my paper “Just Wars and H umanitarian Interventions,” esp. on 450–52.


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———, “Rawls on H uman Rights: Liberal or U niversal?,” in B.A. H addock, Peri Roberts, and Peter Sutch (eds), Principles and Political Order: The Challenge of Diversity (London: Routledge, 2006), pp. 192–212. Martin, Rex, and David Reidy (eds), Rawls’s Law of Peoples: A Realistic Utopia? (O xford: Blackwell, 2006). Macleod, Alistair, “Rawls’s N arrow Doctrine of H uman Rights,” in Rex Martin and David Reidy (eds), Rawls’s Law of Peoples: A Realistic Utopia? (O xford: Blackwell, 2006), pp. 134–49. N agel, Thomas, “The Problem of G lobal Justice,” Philosophy and Public Affairs 33/2 (2005): 113–47. N ickel, James, “Are H uman Rights Mainly Implemented by Intervention?,” in Rex Martin and David Reidy (eds), Rawls’s Law of Peoples: A Realistic Utopia? (O xford: Blackwell, 2006), pp. 263–77. Pogge, Thomas, “The Incoherence Between Rawls’s Theories of Justice,” Fordham Law Review 62 (2004): 1739–59. Rawls, John, A Theory of Justice (Cambridge, MA: H arvard U niversity Press, 1971). ———, A Theory of Justice, rev. edn (Cambridge, MA: H arvard U niversity Press, 1999). ———, Political Liberalism (N ew York: Columbia U niversity Press, 1993). ———, Political Liberalism, paperback edn (N ew York: Columbia U niversity Press, 1996). ———, “The Law of Peoples,” in Stephen Shute and Susan H urley (eds), On Human Rights: The Oxford Amnesty Lectures, 1993 (N ew York: Basic Books, 1993), pp. 41–82; reprinted in John Rawls, John Rawls Collected Papers, ed. Samuel Freeman (Cambridge, MA: H arvard U niversity Press, 1999), pp. 529–64. ———, The Law of Peoples with “The Idea of Public Reason Revisited” (Cambridge, MA: H arvard U niversity Press, 1999). Reidy, David, “An Internationalist Conception of H uman Rights,” Philosophical Forum 36/4 (2005): 367–97. ———, “Political Authority and H uman Rights,” in Rex Martin and David Reidy (eds), Rawls’s Law of Peoples: A Realistic Utopia? (O xford: Blackwell, 2006), pp. 169–88. ———, “Three H uman Rights Agendas,” Canadian Journal of Law and Jurisprudence 19/2 (2006): 237–54. Ricks, Thomas, Fiasco: The American Military Adventure in Iraq (N ew York: Penguin, 2006). Schabas, William, “Indirect Abolition: Capital Punishment’s Role in Extradition Law and Practice,” 25 Loyola of Los Angeles International and Comparative Law Review 581 (2003): 581–604. Shue, H enry, Basic Rights: Subsistence, Affluence, and US Foreign Policy, 2nd edn (Princeton: Princeton U niversity Press, 1996).

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Tan, Kok-Chor, “The Problem of Decent Peoples,” in Rex Martin and David Reidy (eds), Rawls’s Law of Peoples: A Realistic Utopia? (O xford: Blackwell, 2006), pp. 76–94. Walzer, Michael, On Toleration (N ew H aven: Yale U niversity Press, 1997). ———, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd edn (N ew York: Basic Books, 2000). ———, “The Argument about H umanitarian Intervention,” Dissent (Winter 2002): 29–37; reprinted as “Arguing for H umanitarian Intervention,” in N icolaus Mills and Kira Brunner (eds), The New Killing Fields (N ew York: Basic Books, 2002). Yinhong, Shi, and Shen Zhixiong, “After Kosovo: Moral and Legal Constraints on H umanitarian Intervention,” in Bruno Coppieters and N ick Fotion (eds), Moral Constraints on War: Principles and Cases (Lanham: Lexington Books, 2002), pp. 247–63.

Chapter 10

Rawls’s Priority of Rights: Quandaries and Implications for International Relations and the Issue of Intervention David P. Shugarman

Introduction In The Law of Peoples (hereinafter LoP) John Rawls sets out the conditions for bringing about what he calls a “realistic utopia,” and the obstacles to its development. The goals of his realistic utopia are peaceful cooperation and stability among diverse societies that are respectful of one another and of their own citizenry. Living in accord with these goals means development of a league of “peoples” – Rawls’s value-laden term that is used to replace nations and states and to describe societies that practice social cooperation – and compliance with a Law of Peoples. A Theory of Justice and Political Liberalism (hereinafter TJ and PL respectively) were about the principles, considerations and logic necessary for well-ordered societies to be just, reasonable, and liberal-democratic. In LoP Rawls is mainly concerned to look at the arguments for and implications of extending liberal tolerance beyond the confines of a liberal society to some societies, and withholding such tolerance from others. Rawls’s ruminations on these goals are clearly and self-consciously elaborated from within the context of a liberal democracy. H is focus, he emphasizes on a number of occasions, is on “what the foreign policy of a reasonably just liberal [democratic] people should be” in order to bring about his realistic utopia. A primary question has to do with how liberal democracies are to deal with other societies, societies unlike themselves. According to Rawls, tolerance and positive, cooperative relations are required and justifiable in the case of “decent” peoples – i.e. non-liberal and hierarchical political entities that nevertheless respect basic human rights and are not aggressive in their dealings with other peoples. Intolerance, on the other hand, is due to �� John Rawls, The Law of Peoples; with, “The Idea of Public Reason Revisited” (Cambridge, MA: H arvard U niversity Press, 1999). �� John Rawls, A Theory of Justice (Cambridge, MA: H arvard U niversity Press, 1971); Political Liberalism, paperback edn (N ew York: Columbia U niversity Press, 1996). �� Ibid., p. 9. �� Ibid., pp. 10, 83.


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regimes which have little or no respect for basic human rights and the importance of social cooperation. U nlike liberal and decent peoples, these are states that do not comply with what Rawls refers to as the eight principles of a Law of Peoples. The non-compliant are not “peoples” in Rawls’s sense because regime leaders in such territories care little for the Law of Peoples in their international dealings and little for rights, reasonability or reciprocity domestically. Rawls contrasts two kinds of societies that fall outside his ideal theorizations of a realistic utopia: 1) “burdened” societies, and 2) “outlaw” regimes. Burdened societies are those at the lowest end of the global socio-economic order. They are owed assistance. So, too, are those who are subjected to violent assault by their “own” outlaw regimes. The kind of assistance involved here is a protective one that may involve armed intervention. O utlaws are non-compliant states that need to be guarded against and at times confronted militarily. There has been much written on Rawls’s move away from distributive economic justice in his treatment of assistance to burdened societies and much again on his formulation of decent societies and what that formulation means in terms of accepting the moral legitimacy of polities that are not democracies. As important as the aforementioned matters are, this chapter concentrates on Rawls’s considerations regarding outlaw states and the question of when intervention to deal with them might be justifiable. The issue of how democracies are to respond to intra-state conflict that becomes barbaric and one-sided, what they are to do when regimes use their monopoly of force to engage in ethnic cleansing and mass murder, are questions that have been very much on the table of international relations policy makers and commentators over the past decade and a half. They are among the questions that clearly troubled Rawls and which he seeks to address in LoP. What follows is a sympathetic criticism of Rawls’s approach to these questions which draws attention to quandaries as well as promising leads. As a preliminary to reviewing his suggested answers, a short overview which picks up on some key themes and features in Rawls’s argumentation will be presented. This will provide a background for the discussion of Rawls on intervention. Brief Overview of Rawls’s Project What is clearly a motivating factor in Rawls’s reflections and proposals in LoP (and in TJ and PL as well) is a humanitarian concern to end barbarity and persecution. Rawls’s statement of “familiar and traditional principles of justice” is at p. 37 of LoP. �� In TJ (p. 245) Rawls asserts, “men’s propensity to injustice … is greater or less depending in large part on social institutions [and] whether these are just or unjust ... therefore warring and intolerant sects … are much less likely to exist” and their danger minimized in a well-ordered society; the aims of state power “are often predatory” and need to be countered (p. 382; and at p. 387). Rawls says that where a sense of justice prevails “ruthless tactics that might be contemplated in other societies are not entertained as real

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Securing these ends for Rawls means developing political institutions and a political culture that support the exercise of human rights on the one hand and rule out various malevolent authoritarianisms on the other. While his focus in TJ and PL is on the justificatory issues of democratic political philosophy and the principles necessary for a reasonably just polity, in LoP his focus is on proposals for, and the implications of, an enlightened foreign policy for liberal peoples in a world with many non-liberal societies. Among the latter are those that are civilized and cooperative – Rawls’s decent peoples – and are due tolerance and respect. O thers are so backward economically and culturally – Rawls’s “burdened” societies – that they are owed assistance. Still others are dangerous, either to their own people, or to other nations or both. Rawls takes “unjust war and oppression, religious persecution and the denial of liberty of conscience, starvation and poverty ... genocide and mass murder” to constitute the great evils of human history. S ocieties that have permitted these evils or who have had regimes that perpetrate them are the epitomes of unjust societies. These are the outlaw regimes. Their development and power need to be checked and guarded against. They can and must be prevented from engaging in outrageous conduct. This might mean military intervention constrained by just war principles. Preferably, non-compliant regimes may be influenced and altered by international pressure and economic sanctions in ways that lead to the establishment of political arrangements and political institutions which have the general character of being either liberal or decent. Both of these types of peoples Rawls considers well ordered in the sense that, in both, citizens demonstrate respect for one another and there is a clear and respected participatory role for the citizenry in political decision-making (democratic elections in one, a consultative process in the other). For Rawls, cooperation among liberal-democratic and non-liberal-democratic peoples is possible; it is a realistic utopia. And what will contribute to that peaceable accord will be liberal toleration of non-liberal customs and practices and the fact that a set of basic human rights are protected in all societies that make up a confederacy obligated to following the Law of Peoples. What is crucial is that alternatives.” H is introductory remarks to the paperback edition of PL conclude with both depressing observations and an optimistic view of the human potential. H e notes that the “extreme violence and increasing destructiveness” of twentieth century wars along with “the manic evil of the H olocaust” should make us mindful of Kant’s question: given the absence of justice, is it “worthwhile for men to live upon the earth.” Yet, “[w]e must start with the assumption that a reasonably just political society is possible [with] human beings [who] have a moral nature … that can understand, act on, and be sufficiently moved by a reasonable political conception of right and justice to support a society guided by its ideals and principles.” See PL, p. lxii. �� In addition to these four categories of polities Rawls lists benevolent absolutisms, regimes which he says are not “well ordered” because even though they do respect their citizens and most rights, they do not permit any meaningful consultative role in decisionmaking. See Rawls, LoP, pp. 4, 63. �� Rawls, LoP, pp. 6–7.


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liberal societies (peoples) are consistent with their own liberal tenets in facilitating unforced social cooperation and challenging oppression. A society that is moved by and fosters social cooperation is, for Rawls, a reasonably just society. Basic human rights are essential conditions of social cooperation. This is so in three respects: 1) cultural commitment to and acceptance of the concept of basic rights are fundamental to cooperation; 2) their procedural defense and practical exercise is integral to ongoing social cooperation; 3) their enforcement and constraints against their violation are emblematic of social cooperation. Rawls’s list of basic human rights that ought to be regarded as a priority for any properly civil and humane society (insofar as it is to cover both liberal and decent peoples) is, as a number of commentators have pointed out, less lengthy than one finds in various U nited N ations (UN ) rights documents or national charters of rights. It is by no means, however, a minimal or undemanding list. H e agrees with H enry Shue’s understanding of subsistence rights as implying both minimum economic and physical security and he holds that these rights are basic human rights. They need to go along with rights to liberty, personal property, freedom of conscience and religion, and guarantees of being accorded natural justice by any adjudication process. These are “universal”10 human rights not just Western or liberal rights, and represent a special class of urgent rights11 whose fulfillment “excludes justified and forceful intervention by others.”12 For Rawls, any social system where these rights are not protected and/or forcibly quashed is neither liberal nor decent. The machinations of a regime that is ruthlessly dismissive of basic rights deserve neither toleration nor neglect. They might rather require intervention. It is to Rawls’s somewhat cryptic but nevertheless heuristic rationale and discussion of intervention that we now turn. Intervention and Outlaw Regimes Commentary by scholars and journalists about the pros and cons of military humanitarian intervention has now become an industry.13 O n one side are those who see non-intervention as the corollary of sovereignty among nations and as the preeminent default position in international relations. In this regard Article 2(40) of

�� Ibid., p. 64. �� Ibid., p. 80. 11 �� Ibid., p. 79. 12 �� Ibid., p. 80. 13 �� See, for example, Deen Chatterjee and Don Scheid (eds), Ethics and Foreign Intervention (Cambridge: Cambridge U niversity Press, 2003); J.L. H olzgrefe and Robert Keohane (eds), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge U niversity Press, 2003); Terry N ardin and Melissa Williams (eds), Humanitarian Intervention (N ew York: N ew York U niversity Press, 2006); Thomas Weiss, Humanitarian Intervention: Ideas in Action (Cambridge: Polity Press, 2007). 10


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the UN Charter – “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the U nited N ations” – is taken as the key principle that underlies world order by outlawing aggression and making sovereignty sacrosanct. In this view intervention into the affairs of a sovereign nation is only acceptable if it has UN Security Council authorization in accordance with the provisions set out in Chapter VII of the UN Charter. According to legalists, that is not only the written law, it is the moral law. G iven that Rawls lists “a duty of non-intervention” as the fourth of his eight principles making up his Law of Peoples, and since he says that these principles are to be understood as “familiar and traditional” one might assume that he would agree with traditional and familiar views on the priority of non-intervention. But Rawls is of the view that the traditional conception of sovereignty conferring unrestricted internal autonomy is in need of serious reformulation.14 H e makes it very clear that under his Law of Peoples the non-intervention principle is defeasible, “obviously … to be qualified in the general case of outlaw states and grave violations of human rights.”15 S o Rawls represents the other side of the controversy over the legitimacy of international intervention, those who believe both that unfettered internal sovereignty is politically unsustainable and that intervention is a justifiable, humanitarian response to flagrant abuses of human rights by barbarous regimes. Rawls’s delineation of outlaw states is at one level unambiguous. O utlaw states are those that flout basic rights and conduct their relations with other societies aggressively. They are a danger to peace and order and should not be tolerated or provided with assistance by decent or liberal societies. A significant implication of this policy of intolerance is that liberal and decent societies have to be prepared to defend themselves against outlaws and engage in aggressive stances of their own through the use of economic sanctions and military force when necessary. U nfortunately, Rawls is unclear as to when such circumstances arise. The quandaries in his exposition include the following: 1. H e actually says two different things about outlaw states: a) they “are aggressive and dangerous” – and thus should not be tolerated by liberal and decent peoples as “a consequence of liberalism and decency” – and can and should be made to alter their policies; and b) they may not be dangerous and aggressive (because they are too weak to be hostile with other peoples) but nevertheless engage in violating the rights of their citizenry.16 In either case when universal human rights are violated the perpetrators need to be “condemned and in grave cases may be subjected to forceful sanctions and even to intervention.”17 So, liberal and decent peoples have a right to not tolerate outlaws and a right to intervention.18 �� Rawls, LoP, pp. 26–7. �� Ibid., p.37. 16 �� Ibid., p. 81. 17 �� Ibid. 18 �� Ibid. 14

15

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2. H e suggests that the larger outlaw states are, the more likely they are to be influenced by liberal and decent peoples. This begs empirical/historical investigation. 3. Relying largely on Michael Walzer’s Just and Unjust Wars,19 Rawls defends just war theory as pertinent to necessary responses to offensive conduct by outlaws.20 Rawls’s emphasis, however, is on jus in bello constraints and he skims over jus ad bellum requirements, which for intervention questions are crucial. These are the requirements of just cause (which traditionally has been understood as response to attack), proper authority, right intention, proportional means, last resort and reasonable prospects of success. For those directing their attention to the legitimacy of international intervention – policy-makers, international lawyers, political scientists, journalists and ethicists – it is crucial to explore and seek answers to questions about when, why, and by whom the use of force is authorized and implemented to restrain an ostensibly sovereign nation’s actions within its own borders and protect a portion of its ostensible subjects. In this respect Rawls is imprecise as to threshold indicators. The reader is provided no discussion of specifiable threshold criteria for a just intervention, save for the proviso (is it a principle?) that “when offenses against human rights are egregious and the society does not respond to the imposition of sanctions … intervention in the defense of human rights would be acceptable and would be called for.”21 What is clearly called for is an elaboration of principle-dependent rationales for decision-making and policy conduct. Remarkably, Rawls relegates such important matters to a few pages and footnote comment. 4. With respect to the prescriptive intent of his reflections and principles pertaining to his Law of Peoples and its application to all organized entities, Rawls seems to hold three different positions. H e tells us early, repeatedly and in his closing remarks that his aim is to set out guidelines and implications for the foreign policies of liberal nations that will be conducive to the realization of a “realistic utopia,” and that he is engaged in an exercise in political philosophy in order to do that.22 In this regard his prescriptions involve philosophizing about justifiable, reasonable foreign policies that liberal-democracies should follow in their relations with other peoples. H e also claims, in a related fashion, but arguably incoherently, that his Law of Peoples, which contains basic human rights and reflects liberal principles, could and would be accepted by non-liberal, but decent peoples, because it is not only for liberals, but for all peoples. Its principles are thus not only liberal, they are also universal though not cosmopolitan. Third, as mentioned earlier, when it comes to eliciting the ramifications of some important foreign policy questions as to how liberal and decent societies are to deal with outlaw states, Rawls is moved 19 �� Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (N ew York: Basic Books, 1977). 20 �� Rawls, LoP, p. 95, n.8. 21 �� Ibid., p. 94, n.6. 22 �� Ibid., pp. 3–10, 11, 83, 92, 124, 128.


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to take up just war theory and considerations of military intervention. Yet, almost in the same breath, he says that the question of how all societies are to be brought to follow the Law of Peoples is “essentially a matter of political judgment” and a “question for foreign policy … and not matters to which political philosophy has much to add since “it calls for political wisdom.”23 This unaccountable break between foreign policy matters and political philosophy and the assertion that political judgment and wisdom are notions about which political philosophy has little to say is, on its own, mind-boggling, but it is especially so coming from a political philosopher who has written extensively about the importance of practical reason, the politically reasonable and logically connected principles. 5. Despite his contention that his exploration of the possibilities of establishing a reasonably just global order stems from basic facts of the social world,24 when he speaks about the treatment of sovereignty in international law and in the proceedings of the UN he too easily links an “ought” with an “is.” H e claims that international law “tends to restrict a state’s right to internal sovereignty.”25 His conception of outlaw states and his view that decent and liberal peoples need to be wary of such regimes and ready to combat them are consistent with a prescriptive recommendation for changing global norms so that international law ought to restrict and make conditional various aspects of sovereignty. Living in accord with a reasonable Law of Peoples means “we must reformulate the powers of sovereignty” to end a state’s right to deal with its own citizenry any way it pleases. As an empirical proposition, however, the claim would be contested by many (probably most) international lawyers and countries like Russia, China, India and Mexico, to name but a few, which happen to represent a huge portion of the world’s population. G iven the lack of unanimity among the five permanent members of the UN Security Council to invoke Chapter VII provisions of the UN Charter to authorize military interventions in situations such as Darfur and Kosovo, what is needed is some discussion of the political and/or legal structures and responses that will address horrendous human rights violations and ethnic cleansing. But that discussion is not forthcoming from Rawls’s brief treatment of the issues. In Rawls’s defense, it should be noted that his prescience, writing in 1998, with respect to challenges to the inviolability of the sovereignty norm was remarkable. The year that LoP was published N ATO intervened in Yugoslavia to halt the Milosevic regime’s brutal treatment of Kosovars; shortly thereafter, the report of the International Commission on Intervention and State Sovereignty (ICISS) made a case for redefining sovereignty as the “responsibility to protect” a regime’s citizenry from great harm, with the caveat that where a population was not afforded protection by its government the responsibility became that of the international community;26 23

�� Ibid., p. 93. �� Ibid., p. 124. 25 �� Ibid., pp. 27, 79. 26 �� International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty 24

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and in September 2005 the UN G eneral Assembly, at its Sixtieth Session, resolved to adopt The World Summit O utcome of the same year which contained agreeable references to the “responsibility to protect” principle. N evertheless, it remains the case that many nations have NO T accepted the proposition that Westphalian notions of internal sovereignty are limited by implications of ICISS’s responsibility to protect doctrine or the supportive UN resolution. 6. Though Rawls’s eight principles27 are “familiar and traditional” and are to be understood as the basic charter of the Law of Peoples, he clearly is not satisfied to rely on international law or the UN Charter as guiding or informative when it comes to new global structures of decision-making. Why he does not explore the failings of current international law or the UN is a puzzle. After all, why write a monograph calling for a new approach to international relations unless traditional approaches are deemed as holding back progress towards a more just world order?28 In drawing attention to a number of what I have called quandaries in Rawls’s exposition – and there are others – I am not meaning to imply that we are left with contradictions and dead-ends. Rather, they are to be seen as puzzles to be picked up, and worked with, perhaps added to and modified: teasers beckoning us to further exercise. A Case for Emergency Response In The Idea of Public Reason Revisited (which follows and is included with LoP) Rawls states, “Without citizens’ allegiance to public reason and their honoring the duty of civility, divisions and hostilities between doctrines are bound in time to assert themselves, should they not already exist.”29 While we are capable of approximating a realistic utopia we are also at risk, Rawls is telling us, of falling back into a divisive, nasty state of lawlessness. We have to be attentive to supporting and safeguarding ethical politics. Political conceptions are matters of moral right and wrong; they are “intrinsically moral ideas … a kind of normative value.”30 Rawls is no logical positivist; politics and morality are not in separate worlds. We don’t exit one realm to participate or criticize in another: to say that people’s politics are a reflection of their rational pursuits – in contrast to their appeal to public reason and the reasonable – or that political values and understandings are determined by their individually or collectively insular interests would mean that the “political” was not a normative subject and activity. To the contrary, (O ttawa: International Development Research Centre, 2001). 27 �� Rawls, LoP, p. 37. 28 �� H e does say at one point that new international “institutions and practices to serve as a kind of confederative center and forum” should be established but offers little elaboration. S ee Rawls, �� LoP, p. 92. 29 �� Rawls, LoP, �� p. 174. 30 �� Ibid.


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public reason is integral to what constitutes the political, which is a “fundamental category [involving] political conceptions of justice as intrinsic moral values.”31 W hat is claimed in LoP, in many respects applying what is essayed in PL, is that a commitment to intrinsic moral values is what is crucial to maintaining international comity, without, however, having to agree on the source of these values, or the institutional setting for their delivery. Earlier I drew attention to a number of quandaries, open-ended questions and under-argued positions that attend Rawls’s discussion of the directions a liberal foreign policy ought to follow and its implications for building a better world, especially when dealing with regimes that attack rather than protect their own people. Furthermore, Rawls’s claim at one point that he will make clear that what is understood by “the duty of assistance will confirm the right of intervention” remains incoherent because the promised follow-up never takes place.32 A nd to some extent his discussion of needed assistance to burdened societies blurs rather than clarifies the connection he wants to make to intervention. H e does not confirm or offer any elaboration of a right of intervention. What he could have set out, and what I think can be “read into” Rawls is an argument for intervention that 1) treats it as an expected, ethically obligatory, “normal” emergency response, and 2) draws on his discussion in TJ of the importance of “natural duties.” In the first regard I am referring to a widely practiced and esteemed norm. As a prima facie justifying argument we have a rationale that is somewhat analogous to the one used by Rawls to introduce his eight principles that make up the Law of Peoples – i.e. that they are “familiar and traditional.” It is clearly both familiar and customary in liberal democracies and, if it need be said, in any decent society, for emergency relief to be both expected by and offered to people in distress. Whether the result of car accidents, fires, floods or being subjected to physical abuse, it is expected that those in dire straits, whether they are down the block, strangers across the city, visiting foreigners, or in other lands, are entitled to rescue. It is also understood that those in the way of emergency relief have an obligation to step aside, to halt whatever they are doing that might be obstructive to the provision of assistance. A second consideration repairs a gap in Rawls’s discussion by recalling his own reminder of natural duties in TJ: “O ne aim of the law of nations is to assure the recognition of [natural] duties” – for example, to help another, not to be cruel to each other, not to kill – owed not just to members of one’s own group or society “but to persons generally.”33 In LoP Rawls could have drawn on natural duty without inconsistency as both a rationale for assistance to burdened societies and as a response to emergency situations.34 N atural duty also goes together 31

�� Ibid., p. 174, n.91. �� Ibid., p. 81. 33 �� Rawls, TJ, p. 115. 34 �� In the Groundwork of the Metaphysic of Morals Kant says, “To help others where one can is a duty.” See H .J. Paton ed., and trans., The Moral Law (London: H utchinson U niversity Library, 1948), p. 63. 32


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with the importance of protecting basic human rights. The result is a more fully developed appreciation of both a responsibility to protect the physical security of the vulnerable in grave emergencies, and a right to use force to deliver that aid if attempts are made to thwart it. An argument relying on the norm of expected emergency response is consistent with Rawls’s references to accepted and expected norms in ethical international relations, his reminder of our natural duties (in TJ), his emphases on reciprocity and reasonableness, and his justificatory principle of an overlapping consensus on what constitutes the politically reasonable. 35 Thinking about The Canadian Charter of Rights and Freedoms can also be useful here, though the justificatory onus is somewhat turned on its head. In Canada guarantees of individual rights listed in the Charter can be overridden – which is to say violations can be accepted as constitutional – if it can be reasonably shown that doing so is “demonstrably justifiable in a free and democratic society” (according to the “O akes test” from R. v. Oakes).36 With regard to Rawls’s Law of Peoples, the guarantee of non-intervention can be trumped by other principles in accordance with the needs of a reasonable and cooperative society of peoples, overridden by an overlapping consensus of the liberal and decent in the interests of securing basic, ”urgent” rights – i.e., when the vulnerable are being, or are in imminent danger of being, subjected to brutal treatment by their government. N on-intervention, then, as indicated earlier, “obviously [has] to be qualified in the general case of outlaw states and grave violations of human rights.”37 T he right of jurisdictional autonomy – sovereignty – can be restricted, deemed inapplicable by liberal and decent people when that right is abused and misused to cause great suffering and/or death to the vulnerable. Conclusion Rawls’s attempt to differentiate his understanding of what is needed to build and sustain a rightful international order from a cosmopolitan one has left many of his admirers and commentators critical and skeptical. The worry is that in order to accommodate non-liberal societies/peoples Rawls moved too far away from his arguments in Political Liberalism and too far away from the priority of rights that was so elemental in his previous writings. Despite a number of quandaries and questions that are left unexplored or unclear, when it comes to the importance of rights no such ambiguity figures in Rawls’s treatment of people suffering from 35

�� It is perhaps important to point out the difference between the emergency response principle that I am maintaining goes with Rawls’s (Kantian) duty to assist principle and Rawls’s adaptation of Michael Walzer’s Supreme Emergency principle in a just war. The latter is an excuse for removing restraints on attacking the vulnerable, the former is a justification for reinforcing those restraints. 36 �� R. v. O akes, [1986] 1 S.C.R. 103. 37 �� Rawls, LoP, p. 37; above, note 15.


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the machinations of outlaw states. This chapter has tried to show that individual, basic human rights are still a priority in Rawls’s The Law of Peoples. Though they are understood as necessary and consistent with the right or rights of a people to conduct its politics in ways not always subscribing to liberal fundamentals, basic human rights are prominent not only in Rawls’s treatment of relatively just liberal peoples and the ingredients of a realistic utopia, about which I have said very little here, they are crucial in his discussions of non-ideal theory and the problems with non-compliant political entities. Rawls emphasizes that in his theorizing about how to bring about a reasonable accommodation among reasonable peoples he has followed Rousseau in addressing and assuming people as they are, “you and me, here and now.”38 T his means that, given our capacities for reasonableness and empathy and despite our weaknesses and our excesses, he would have us contemplate the development of a world of cooperative social relations as practiced norms. Among the key lessons to be learned from his Law of Peoples is that while liberal democratic nations need to accept non-liberal regimes and political cultures that respect basic human rights, those that do not should be regarded as intolerable and deserving not only of our wariness but, in certain circumstances, intervention. H is notion that we can and therefore ought to build a much better world based on principles of reasonableness, reciprocity and the protection of basic rights is connected to his view that where these principles are denied the use of force, properly constrained, may be necessary for defensive and rescue purposes. Rawls’s theorizations in support of building and sustaining a well-ordered world are very much in line with what is central and most admirable in the grand tradition of western political thought, the fusion of ethics and politics. In his earlier writings, culminating with A Theory of Justice, he substantially reinvigorated normative political thought by setting out an array of prescriptive principles linking rights and obligations to provide a surer ground for strengthening liberal democracy. In Political Liberalism, along with recasting several key ideas, especially that of “the reasonable,” he offered a major revision of his theorizing by arguing that liberal democrats could only be consistent with their own principles insofar as they recognized the legitimacy of a plurality of basic moral beliefs and lifeways among fellow citizens who might well differ over deep metaphysical questions but who nevertheless would share commitments to democratic processes and principles and treat each other with mutual respect. In The Law of Peoples he adds a remarkable aspect to his legacy. H e has extended his reasoning from PL – some would say too far, some not far enough – to argue that what unites liberals and what ought to unite them internationally with decent, non-liberals, and what ought to move all such peoples, is recognition of the priority of basic rights in the lives of people everywhere, which entails obligations in light of the circumstances to assist the less fortunate and challenge the rapacious. 38

�� Ibid., p. 30.


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Rawls’s later work cautions liberals to avoid insularity and advises them to be respectful and open to others and other peoples’ ways of life. It also advises liberals to be wary of regimes that are dismissive of basic human rights and to be prepared to counter outrageously aggressive conduct by such regimes whether aimed at other nations or against sectors of their own citizenry. Rawls stresses the importance of caring peoples – i.e., those who care about conducting their public engagements reasonably, protecting basic rights and supporting a common good concept of justice – reconciling themselves to the fact that they can and ought to reasonably disagree about ideal as well as practical ways of conducting their lives. H e also reminds us that such reconciliation is probably impossible among those who hold diametrically opposed views about the values of mutual respect, social cooperation and the priority of basic rights. Although Rawls’s call for reconceptualizing sovereignty and limiting its reach has much to recommend it, we have seen that his presentation of the case for intervention leaves a number of questions unanswered, unexplored. But he also provides us with an answer to expectations of final answers. As to why we have to live positively with disagreement or frustratingly with endless disputation, Rawls holds that it is a mistake to think that philosophy’s task is to produce a knockdown argument against all other arguments and so settle a question or dispute once and for all. “There is,” he says, “no such argument.”39 H is acknowledgement that there may be other ways to fashion an international accord that are moral, lawful and sustainable – and if so, he says at one point, “so much the better”40– is an invitation for further reflection, critical analysis and consideration of alternatives in the search for a realistic utopia.41 Bibliography Chatterjee, Deen, and Don Scheid (eds), Ethics and Foreign Intervention (Cambridge: Cambridge U niversity Press, 2003). H olzgrefe, J.L., and Robert Keohane (eds), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge U niversity Press, 2003). 39

�� Ibid., p. 123. �� Ibid., p. 10. 41 �� This chapter has benefited considerably from assistance provided by David G ordon, an MA student in the Department of Political Science at York U niversity. H elpful too was the opportunity to review the other chapters prepared for this volume when they were in draft form and to participate in the attendant discussions of them at the workshop, “Reflections on Rawls: An Assessment of H is Legacy,” held at York U niversity, August 17–18, 2007. My thinking has also been informed by a number of the excellent articles in the very helpful volume, Rawls’s Law of Peoples: A Realistic Utopia, edited by Rex Martin and David A. Reidy (O xford: Blackwell, 2006). 40


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International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (O ttawa: International Development Research Centre, 2001). Kant, Immanuel. The Moral Law; Groundwork of the Metaphysic of Morals, ed. H .J. Paton (London: H utchinson U niversity Library, 1948). Martin, Rex, and David Reidy (eds), Rawls’s Law of Peoples: A Realistic Utopia? (O xford: Blackwell, 2006). N ardin, Terry, and Melissa Williams (eds), Humanitarian Intervention (N ew York: N ew York U niversity Press, 2006). Paton, H .J. (ed. and trans.), The Moral Law; Kant’s Groundwork of the Metaphysic of Morals (London: H utchinson U niversity Library, 1948). R. v. Oakes, [1986] 1 S.C.R. 103. Rawls, John, A Theory of Justice (Cambridge, MA: H arvard U niversity Press, 1971). ———, Political Liberalism, paperback edn (N ew York: Columbia U niversity Press, 1996). ———, The Law of Peoples; with, “The Idea of Public Reason Revisited” (Cambridge, MA: H arvard U niversity Press, 1999). Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations (N ew York: Basic Books, 1977). W eiss, T homas, Humanitarian Intervention: Ideas in Action (Cambridge: Polity Press, 2007).


Index

agonism 128 Amnesty International 183 anti-utopianism 120–22, 128 Appiah, Kwame Anthony 121, 122–3 A ristotle 104, 115, 116, 125, 126 authoritarianism 115 see also well-ordered peoples under international sphere Baier, Kurt 39 Balkans 118 Barry, Brian 4, 79n15 Beitz, Charles 11 Bellamy, Richard 120, 123–4 Bill of Rights 35 blindness 49, 50 boxing matches 63–4 C alvin, John 77 Cambodia 193 C anada 208 capabilities versus primary goods approach 45–6 capabilities approach 46–7 concluding comment 58 primary goods approach 47–8 response to Pogge’s criticism 48 global inequality masked 52–7 natural inequalities 48–52 public criterion of justice 57–8 social bases of self-respect 48, 56, 58 capital punishment 66, 183–5 capitalist democracy, welfare state in14, 70 C hina 193, 205 Christianity see religion civicism 74n3, 83, 88n31 coercion 116, 123, 136 breaks incultural exchange 182–3, 184 criticism 181–2 humanitarian intervention 118, 191–5, 202–6 case for emergency response 206–8

non-cooperation by European courts 183–5 subsidies 180–81 Suez crisis (1956) 185–90, 191 commerce 125 comprehensive views liberalism as 32–3, 74–5, 82–6, 135–6, 137, 164 challenges of non-liberal religions 87–8 political doctrine distinction 8–11, 74–5, 79, 82–8, 137–9 neutrality 24–5 non-religious 164–6 reasonable 77, 79–80, 86, 131–2, 137–9 disagreement 141–3 overlapping consensus see overlapping consensus religion see religion veil of ignorance 132–3 conflict/instability, ineliminable 122–3, 151 ordering and channeling 123–4 Constant, Benjamin33 cultural exchange, breaks in182–3, 184 cultural relativism 104 Daniels, N orman 58 deafness 49 death penalty 66, 183–5 democracy 2–3, 7–8, 172 democratic procedures, commitment to 39–40 political realists 123–4, 125–6 property-owning 14, 70 difference principle 38 fair equality of opportunity and 62–3, 67–70 three-dimensional view of equality of opportunity 63–6 disabilities primary goods versus capabilities approach 49–51

214


Dombrowski, Daniel 76n7, 85–6 Dulles, John Foster 187–8 Dworkin, Ronald 123 dyslexia 51 Eberle, Christopher 31, 33, 34–5 economic growth and wellbeing 52–7 education aggregated benefits 46 primary goods versus capabilities approach 49, 50–51, 54, 57 Egypt Suez crisis (1956) 185–90, 191 Eisenhower, Dwight 187–8 elderly, nursing care and healthcare for 55–6 Elkin, Stephen 112, 117, 119, 121, 125 E nlightenment 78–9, 131, 135–6, 150 epochç 142 equality contested concept 28, 29–30, 33, 34 H obbes, Thomas 97 of opportunity 61 conclusion 70 democratic equality 61–3, 67–9 principle of average utility 69 three-dimensional view of 63–6 political realism 125–6 primary goods versus capabilities approach global inequality masked 52–7 natural inequalities 48–52 principles of justice, two 98–9 tolerance 131–2, 150 veil of ignorance 93, 98, 99 European Convention on H uman Rights 183 foreign policy see international sphere F rance 33, 54, 184, 186, 188 Frank, Robert 54 freedom capability 46 contested concept 28, 29–30, 32, 33, 34 of religion 35, 40 of speech 40, 157 G aleotti, Anna Elisabetta 150

G alston, William 34 G DP per capita and wellbeing 52–7 genealogy of liberalism 73–4, 75–6 ancient G reeks 76, 78 backward-looking liberalism 80 civicism 74n3, 83, 88n31 comprehensive doctrine/political doctrine distinction 74–5, 79, 82–8 medieval Christianity 76–7, 78 moral knowledge, de-theologized 78–9 pluralism and stability 77–8 reasonable comprehensive doctrines 77, 79–80, 86 Reformation 76, 77–8 relevance of W ars of Religion 80–83, 135 G ermany 184 G oethe, J.W. von 131n2 G ray, John 15, 111 G reece, ancient 76 G reenawalt, Kent 161 growth and wellbeing, economic 52–7 G utmann, Amy 150 H abermas, Jürgen 126 H auerwas, Stanley 168, 169 healthcare and nursing care for elderly 55–6 H egel, G .W.F. 77n11, 80 Hirsch, F red 54, 56–7 Hitchens, C hristopher 85 H obbes, Thomas 76, 87, 96–7, 105, 107–8, 123, 172–3, 174 Homeric tradition 76 Honig, Bonnie 111–12, 122 H uman Development Index (H DI) 52–3 human rights 115, 122 death penalty 66, 183–5 The Law of Peoples 178–9, 189–90, 191, 192, 194, 202, 209 humanitarian intervention 118, 191–5, 202–6 case for emergency response 206–8 H ume, David 78, 106 income/wealth measures and wellbeing 52–7 India 193, 205

Index income/wealth measures 52, 53 individual and political morality 118 inequality see equality instability/conflict, ineliminable 122–3, 151 ordering and channeling 123–4 institutions 98–9 disabilities and social 49–51 political realism 119 International Criminal Court 183 international sphere 11–13, 199–200 burdened societies 180, 185, 200, 201 case for emergency response 206–8 conclusion 208–10 humanitarian intervention 118, 191–5, 202–6 mainfeatures of political toleration 179–91 breaks incultural exchange 182–3, 184 criticism 181–2 non-cooperation of European and U S courts 183–5 subsidies 180–81 Suez crisis (1956) 185–90, 191 not well-ordered societies, toleration for 180 outlaw regimes 180, 185, 200, 201, 202–6 overview of Rawls’s project 200–202 well-ordered peoples 177–8, 180, 185, 201 human rights 178–9, 189–90, 191 humanitarian intervention 194–5 partial compliance by 185–90, 191 intolerance see tolerance Iraq 124, 194 Israel 183, 186 Japan economic growth and wellbeing 53–4 Judaism 165 just war theory 204–5 Kant, Immanuel 8, 74, 78, 112, 131n2, 135, 137, 147 Klosko, G eorge 84n23 language 51–2

215

L armore, C harles 39–40 L aslett, Peter 1 leisure 54–5 Lilla, Mark 81 limited government 128 Locke, John 80, 96, 123, 135 London U nderground 49 Luther, Martin77 McConnell, Michael 32–3, 35 Macedo, Stephen 88n31 Machiavelli, N iccolò 118, 120 Madison, James 35, 125 Madisonian strategies 128 Marxism 85, 86 medieval Christianity 76–7, 78 menstruation 50 Mexico 205 Mill, John Stuart 8, 74, 120, 137 Milton, John 135 minority languages 51–2 Montesquieu 80, 120, 125 moral theory and reflective equilibrium 99–102 circularity 106 pre-theoretic judgments: two views 102–5 moralism see realism and moralism inpolitical theory Mouffe, Chantal 122, 123, 128 N asser, G amel Abdel 185–6, 188–9 NATO 205 N eal, Patrick 10, 75n5, 166 N ewey, G len 111 N ickel, James W. 181 N ielsen, Kai 103, 104, 105 non-cooperation by European courts 183–5 N ozick, Robert 6, 15–16 nursing care and healthcare for elderly 55–6 N ussbaum, Martha 45 O kin, Susan Moller 14 order as first virtue of politics 113–14, 127 outlaw regimes see under international sphere overlapping consensus 7–8, 41, 42, 107, 138, 143, 148, 150

216

Reflections on Rawls empirical 144 non-intervention overridden by 208 pluralism of American society 35, 38, 39 Reformation 77 religious believers 30–31, 79n13, 159 Rousseau, Jean-Jacques 79n15

Paine, T om 131n2 Pence, G regory E. 93 Pettit, Philip 120 Philp, Mark 118, 119, 121 Plato 10, 76n8, 91, 105, 146 Pogge, T homas 11–12, 45, 48–9, 52–3, 54, 55 positional economy 54–7 primary goods versus capabilities approach 45–6 capabilities approach 46–7 concluding comment 58 primary goods approach 47–8 response to Pogge’s criticism 48 global inequality masked 52–7 natural inequalities 48–52 public criterion of justice 57–8 social bases of self-respect 48, 56, 58 principles of justice, two 5, 14, 26, 48, 62, 133–4, 140 appearance of egalitarianism 98–9 difference principle see difference principle veil see veil of ignorance property-owning democracy 70 psychology, moral 121, 124–6 toleration of the intolerant 133–4, 136, 139–41, 143–6, 150 public opinion polls inU S 36–8 public reason 23–5, 83n22 democratic procedures, commitment to 39–40 disagreements over neutrality 31–6 extent of problem 36–8 implications 38–42 normative approach 38–9 mildness of 154–8 moral autonomy 25 neutrality, use of term 24 Rawls’s political constructivism 26

problems with method 27–31 reasonableness, conception of 30–31 reflective equilibrium, method of 29 religious objections to 158–60, 172–4 denial of truth 160, 169–71 fairness 159, 164–6 incompleteness 159, 160–64 integrity 159–60, 166–9 religious toleration 28, 29 slavery, rejection of 28, 29 Quinn, Philip 167 rape 50 rationality 94, 100, 107–8 political realism 122, 124, 126–7 Raz, Joseph 9n47 realism and moralism inpolitical theory conclusion 127–8 distinctiveness and autonomy of politics 115–20 elements of political realism 120–27 anti-utopian 120–22 incomplete rationality 126–7 ineliminable conflict 122–3 ordering and channeling conflict 123–4 psychological and motivational realism 121, 124–6 individual morality 118 introduction 111–12 political moralism and political realism 112–14 legitimacy 114–15 reasonableness see public reason reflective equilibrium 29 moral theory and 99–102 pre-theoretic judgments: two views 102–5 Reformation 76, 77–8 religion 8, 11, 24–5, 30–31 disagreements over neutrality 31–6 extent of problem 36–8 implications 38–42 political liberalism and 153–4, 158–60 conclusion: religious conscience and political rule 172–4

Index denial of truth objection 160, 169–71 fairness objection 159, 164–6 incompleteness objection 159, 160–64 integrity objection 159–60, 166–9 mildness of public reason 154–8 religious toleration 28, 29 W ars of Religion see W ars of Religion rescue, moral principle of 118 see also humanitarian intervention respect 131 contested concept 28, 33–4 Ron, A mit 3n9 Rousseau, Jean-Jacques 66, 76, 77, 79, 209 Russia 205 S ampson, W illiam 33 Sandel, Michael 11 Schwartzman, Micah 162–3 scientific theory 100 S cott, James 119 secrecy, government 118 secularism 32–3 Sen, Amartya 14, 45, 46–7, 52 Shklar, Judith 87, 111 Shue, H enry 202 slavery, rejection of 28, 29 social contract 4, 112 agreement constraint on 96–7 equality as benchmark 98 appearance of egalitarianism 98–9 capacity for morality 106 introduction 91–5 moral theory and reflective equilibrium 99–102 circularity 106 pre-theoretic judgments: two views 102–5 two views of the veil 95–6 veil of ignorance: not really a 106–8 social institutions 98–9 disabilities and 49–51 political realism 119 social primary goods see primary goods versus capabilities approach S ocratic tradition 76

217

South Africa 50 sovereignty 203, 205–6, 208 Spinoza 80 stakes fairness 63–6 democratic equality and 67–70 Stears, Marc 119, 127–8 subsidies 180–81 Suez crisis (1956) 185–90, 191 suicide bombers 125 Tan, Kok-Chor 181 Tanzania 193 Thompson, Dennis 150 toleration conclusion 151 inequality 131–2, 150 international see international sphere introduction 131–2 motivation and justification 145–6 ‘political inthe wrong way’ 147–51 Rawls and 132 A Theory of Justice 132–4 post-Theory 134–7 Political Liberalism 137–9 similarities between Theory and Political Liberalism 139–43 stipulative turn 143–5 Uganda 193 U nger, Roberto 122 U nited Kingdom 183 Suez crisis (1956) 185–90, 191 United N ations 193, 194 C harter 203 G eneral Assembly 206 Security Council 203, 205 United S tates 5, 126 disagreements over neutrality 31–6, 40, 41–2 public opinion polls 36–8 humanitarian intervention 194 income/wealth measures 52, 53, 54 non-cooperation by European courts 183–5 Suez crisis (1956) 185–90, 191 Supreme Court 32–3, 35, 40, 183 U niversal Declaration of H uman Rights 178

218


utilitarianism 4, 8, 95–6, 112, 133, 164, 165 utility, principle of average 69 veil of ignorance 91–5 agreement constraint on 96–7 equality as benchmark 98 appearance of egalitarianism 98–9 conclusion on social contract and 106–8 moral theory and reflective equilibrium 99–102 circularity 106 pre-theoretic judgments: two views 102–5 toleration and 132–3 two views of 95–6 Vietnam 193 violence, use of 96–7, 105 Waldron, Jeremy 117 Walzer, Michael 181, 193, 204

W ars of Religion 73–4 medieval Christianity 76–7, 78 Reformation 76, 77–8 relevance of 80–83 toleration 135 Weithman, Paul 167 welfare state incapitalist democracy 14, 70 well-ordered peoples see under international sphere wellbeing and economic growth 52–7 W enar, L eif 30n15 West Virginia State Board of Education v. Barnette 38n41 W illiams, A ndrew 162, 163 W illiams, Bernard 112–15, 118, 121, 122, 123, 124 W olin, S heldon 83n22 W olterstorff, N icholas 166–8 Yack, Bernard 126, 127 Young, Iris Marion 127 Yugoslavia 205

Reflections on Rawls

Rawls on Justice

On Rawls (Wadsworth Notes)

Rawls

Realizing Rawls

Reading Rawls: Critical Studies on Rawls' A Theory of Justice

Reflections on Kurt Gödel

Realizing Rawls

Realizing Rawls

Reflections on Meaning

Reflections on history

Reflections on Higher Education

Reflections on Mathematics

Reflections on History

Reflections on Money

Reflections On Multiliterate Lives

Reflections on Research

Reflections on Language Learning

Reflections On Revolutions

Reflections on Human Development

Reflections on the Psalms

Reflections On Language Learning

Reflections on Human Development

Reflections on Meaning

Reflections on Constitutional Law

Reflections on Public Administration

Landmarks: reflections on anthropology

On Rawls, Development and Global Justice

Realizing Rawls

Reading Rawls

Reflections on Life After Life

Reflections on Rawls

Rawls on Justice

On Rawls (Wadsworth Notes)

Rawls

Realizing Rawls

Reading Rawls: Critical Studies on Rawls' A Theory of Justice

Reflections on Kurt Gödel

Realizing Rawls

Realizing Rawls

Reflections on Meaning

Reflections on history

Reflections on Higher Education

Reflections on Mathematics

Reflections on History

Reflections on Money

Reflections On Multiliterate Lives

Reflections on Research

Reflections on Language Learning

Reflections On Revolutions

Reflections on Human Development

Reflections on the Psalms

Reflections On Language Learning

Reflections on Human Development

Reflections on Meaning

Reflections on Constitutional Law

Reflections on Public Administration

Landmarks: reflections on anthropology

On Rawls, Development and Global Justice

Realizing Rawls

Reading Rawls

Reflections on Life After Life

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