The Legacy of John Rawls (Continuum Studies in American Philosophy)

The Legacy of John Rawls

THOM BROOKS, FABIAN FREYENHAGEN

Continuum

THE LEGACY OF JOHN RAWLS

Continuum Studies in American Philosophy: Dorothy G. Rogers, America's First Women Philosophers Thorn Brooks and Fabian Freyenhagen (eds), The Legacy of John Rawls James A. Marcum, Thomas Kuhn's Revolution Joshua Rust, John Searle and the Construction of Social Reality Eve Gaudet, Quine on Meaning Douglas McDermid, The Varieties of Pragmatism Timothy Mosteller, Relativism in Contemporary American Philosophy

THE LEGACY OF JOHN RAWLS

Edited by THOM BROOKS AND FABIAN FREYENHAGEN

continuum

Continuum The Tower Building, 11 York Road, London SE1 7NX 80 Maiden Lane, Suite 704, New York, NY 10038 www.continuumbooks.com ©Thorn Brooks, Fabian Freyenhagen and contributors, 2005 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. First published 2005 Paperback edition 2007 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN-10: HB: 0-8264-7843-3 PB:0-8264-9987-2 ISBN-13: HB: 978-0-8264-7843-6 PB: 978-0-8264-9987-5 Library of Congress Cataloging-in-Publication Data The legacy of John Rawls / edited by Thorn Brooks and Fabian Freyenhagen. p. cm. Includes bibliographical references and indexes. ISBN 0-8264-7843-3 1. Rawls, John, 1921-. 2. Justice. 3. Liberalism. 4. Political ethics. 5. Political science-Philosophy. I. Brooks, Thorn. II. Freyenhagen, Fabian. JC251.L395 2005 320'.01-dc22 2005041911

Typeset by Aarontype Limited, Easton, Bristol Printed and bound in Great Britain by Biddies Ltd, King's Lynn, Norfolk

CONTENTS

Preface Motes on contributors

vii

viii

Abbreviations

x

Introduction Thorn Brooks and Fabian Freyenhagen

1

1

The unity of Rawls's work LeifWenar

22

2

Self-realization and the priority of fair equality of opportunity RobertS. Taylor

34

3

Taking the distinction between persons seriously Anthony Simon Laden

50

4

Rawls and feminism: What should feminists make of liberal neutrality? Elizabeth Brake

67

5

Public reason and the moral foundation of liberalism Jon Mahoney

85

6

Dilemmas of public reason: pluralism, polarization, and instability Robert Talisse

107

1

Public reason and religion James Boettcher

124

8 John Rawls and the new Kantian moral theory Ana Marta Gonzalez

152

vi 9

10

Contents The Law of Peoples: the old and the new Chris Naticchia

177

The legacies of John Rawls Fred D'Agostino

195

Name index

213

Subject index

217

PREFACE

John Rawls was perhaps the most important moral and political philosopher of the last century. In November 2004, the Journal of Moral Philosophy published a special issue on "The Legacy of John Rawls" as a tribute to Rawls's ever-present influence on moral and political thought. Several of the papers in this collection appeared in that issue. However, many others did not. All of the papers included here were anonymously refereed and we would like to extend our sincere thanks to the members of the Journal of Moral Philosophy's editorial board and our many referees for their advice—and their time—in deciding which submissions should be published. In addition to our editorial board and referees, we would like to acknowledge our thanks to others as well. First, we must thank Philip de Bary for his tireless and enthusiastic support of this project from the beginning. We are grateful for the help of others at Continuum, such as Sarah Norman and Iain Beswick, for their assistance in putting the original journal issue together as well. Mention must also be made of Hywel Evans for his support of this project. We are also very appreciative of Tracey Brady and Laura Jarvis's help with preparation of the manuscript. We must thank the Department of Philosophy at the University of Sheffield for their encouragement and backing on every matter of the Journal's activities, not least this book. In particular, we extend our very special thanks to Leif Wenar. His advice on all aspects of this project has been simply invaluable. Finally, to our partners, Meagan and Sabine, our most heartfelt appreciation for their support over the course of this project. As always, we remain very much in their debt. Thom Brooks Fabian Freyenhagen Sheffield,UK November 2004

NOTES ON CONTRIBUTORS

James Boettcher is Assistant Professor of Philosophy at Saint Joseph's University in Philadelphia. He specializes in social and political philosophy, and has published several articles on the political liberalism of John Rawls. His current project involves an analysis of the role of religion in political decision-making. Elizabeth Brake is Assistant Professor of Philosophy at the University of Calgary, Canada. Her research interests include political philosophy, feminist ethics, Kant, and Hegel. Besides working on liberalism and feminism, she is currently writing on two topics: marriage and paternity. Thom Brooks is Lecturer in Political Thought at the University of Newcastle, UK, and founding editor of the Journal of Moral Philosophy. He is editor of Rousseau and Law. His work centres on British and German Idealism, democratic theory, and legal philosophy. He is currently writing a book on punishment. Fred D'Agostino is Associate Professor of Philosophy and Head of the School of Social Science at the University of New England in New South Wales, Australia. He is author of Free Public Reason (Oxford University Press, 1996) and The Common Denominator (Ashgate, 2003), and has written numerous articles and chapters on political theory and epistemology. He is currently working on bringing materials in social psychology and organization theory to bear on issues in social epistemology. Fabian Freyenhagen is currently completing his Ph.D. on Kant's and Adorno's practical philosophy at the University of Sheffield, UK. He is the reviews editor of the Journal of Moral Philosophy. He also works on Kantian practical philosophy more generally. Ana Marta Gonzalez received her Ph.D. in Philosophy at the University of Navarra, Spain, in 1997 writing on Aquinas's approach to the foundations of morality. More recently, she became interested in Kant's moral philosophy and won a one-year Fulbright Fellowship at Harvard to do some research. She now teaches ethics at the University of Navarra.

Notes on contributors

ix

Anthony Simon Laden is Associate Professor of Philosophy at the University of Illinois at Chicago. He is the author of Reasonably Radical: Deliberative Liberalism and the Politics of Identity (Cornell, 2001) as well as numerous articles on Rawls, democratic legitimacy, and reasonable deliberation. Jon Mahoney's primary research interests are in social and political philosophy and ethics. He is currently Assistant Professor of Philosophy at Kansas state University. Recent publications include "Objectivity, Interpretation, and Rights: A Critique of Dworkin" (Law and Philosophy 23 [2004]) and "Cosmopolitanism as a Moral Imperative" (Philosophy in the Contemporary World 2.5 [2002]). Chris Naticchia is Associate Professor of Philosophy at California state University, San Bernardino, where he specializes in moral, political, and legal philosophy. His recent work includes "Recognizing states and Governments" (Canadian Journal of Philosophy, forthcoming), which discusses the standards that states ought to use to recognize other states and governments as members of the international community. Robert Talisse is Assistant Professor of Philosophy at Vanderbilt University. His research focuses on democratic theory, public deliberation, and political justification. He is the author of several articles in political philosophy, and the hook Democracy After Liberalism (Routledge, 2005). Robert S. Taylor is Assistant Professor of Political Science at the University of California, Davis. He specializes in contemporary Anglo-American political philosophy and has recently published articles on Rawls's defense of the priority of liberty (Philosophy & Public Affairs,2003) and on self-ownership (Journal of Political Philosophy, 2004). Leif Wenar received his doctorate in philosophy from Harvard in 1997. Among his scholarly articles on Rawls is "Political Liberalism: An Internal Critique," which appeared in Ethics and The Philosopher's Annual. He is currently Reader in Philosophy at the University of Sheffield, and for 2004—5 holds a Fellowship in Justice and the World Economy from the Carnegie Council on Ethics and International Affairs.

ABBREVIATIONS

The following are abbreviations for the works of John Rawls as they are referred to in the notes to chapters. CP

John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999).

JFJohn Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Gam bridge, MA: Harvard University Press, 2001). LHMPJohn Rawls, Lectures on the History of Moral Philosophy, ed. Barbara Herman (Cambridge, MA: Harvard University Press, 2000). LP

John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999).

PL

John Rawls, Political Liberalism (New York: Columbia University Press, paperback edition, 1996).

PRR

John Rawls, "The Idea of Public Reason Revisited" [1997] reprinted in CP, 573-616 and in LP, 129-80.

RH

John Rawls, "Reply to Habermas" [1995] reprinted in PL, 372-434.

TJJohn Rawls, A Theory of Justice (Cambridge, MA: Harvard Univ e r sity Press, revised edition, 1999).

INTRODUCTION Thorn Brooks and Fabian Freyenhagen

John Rawls (1921—2002) is widely recognized has having rejuvenated and revolutionized moral and political theory. As one of his fiercest critics, Robert Nozick, put it once: Political philosophers now must either work within Rawls' theory or explain why not. The considerations and distinctions we have developed are illuminated by, and help illuminate, Rawls' masterful presentation of an alternative conception. Even those who remain unconvinced after wrestling with Rawls' systematic vision will learn much from closely studying it. I do not speak only of the Millian sharpening of one's views in combating (what one takes to be) error. It is impossible to read Rawls' book without incorporating much, perhaps transmuted, into one's own deepened view. And it is impossible to finish his book [A Theory of Justice (eds)] without a new and inspiring vision of what a moral theory may attempt to do and unite; of howbeautifula whole theory can be. That Rawls's theory is the focal point of moral and political philosophy, that one has to either work within in it or explain why not, is something which is in all likelihood still true today, 30 years after the passage above was written. It is for this reason that we take stock of the immense variety of Rawls's legacy in this volume. In this introduction, we want to do two things. First, we have a brief look back at the work of Rawls, how it proved so influential, how it was criticized, and how it changed, partly as a result of these criticisms. The approach here is more developmental than systematic, since the first chapter of this volume already provides an interpretation of how Rawls's work can be seen as presenting a coherent system. Second, we provide a glance ahead at the possible ways Rawls's work will, at least in our opinion, continue to shape the discussion in moral, political, and legal philosophy. Here our main aim is to make explicit the breadth this continued influence is likely to take, with some of the chapters in this volume pointing to more specific ways in which Rawls's legacy is set to live on.

2

Introduction

Taking stock The above-quoted passage taken from Nozick's Anarchy, State, and Utopiaprovides a clue as to what made Rawls's theory as influential as it proved to be. Nozick speaks of Rawls's work providing a systematic theory, which illuminates distinctions and considerations people have drawn on since, forcing them to incorporate much from it while presenting an "inspiring vision of what a moral theory may attempt to do and unite." If one adds to this the 4 ability to make itself immune to traditional and new objections4 —an ability which partly relies on integrating some of the elements of the objections— then one is, it seems to us, a good way along the road of understanding the almost magnetic effect the "beautiful theory" of John Rawls had and con5 tinues to have. This is not to say that commentators agree that Rawls's work does present a systematic and consistent theory. Some of his critics and supporters alike charge him with having moved against his original commitments in his adoption of political liberalism. In Chapter 1, Leif Wenar argues against these critics. He presents a systematic interpretation of Rawls's work according to which it is a unified whole structured around the ideas of justice and legitimacy. He also highlights the parallels in Rawls's theory ofjustice for domestic and global institutions. Apart from providing an implicit defense against the charge of incoherence, this chapter offers an excellent overview of the essential elements of Rawls's theory. Consequently, Chapter 1 presents the ideal starting point both for reading this volume and for engagement with Rawls generally.

Justice as fairness: a comprehensive conception of justice Looking at what Rawls's theory attempts to do, the first thing to note is what he did not attempt to do. His conception of justice as fairness restricts itself to the justice of social institutions, or what he calls "the basic structure of society." So while one might call individuals or their actions and judgements just and unjust, Rawls did not set out to give an account of this. He concentrated his efforts on the basic structure of society, because—as he famously writes—"its effects are so profound and present from the start." Initially, this restriction included a focus on the question of justice within states and not between them, but later Rawls extended his account to the global basic structure. A quick glance at the index (or size, for that matter) of A Theory of Justice reveals that Rawls, while restricting himself to a theory of justice of the basic structure of society, treats this subject extensively and in admirable depth. He sets out to find the principles of justice which should govern this structure,

Introduction

3

provides a method for finding these principles, uses this method to compare different alternatives, considers the question of civil obedience and our right to civil disobedience, offers a theory of the good, engages in moral psychology, and enters into the relation between ideal theory and practical application. All this was initially part of the project of defending a comprehensive doctrine of liberalism which provided a contractarian theory of justice. The theory was contractarian in that the principles of justice were to be chosen in a way that represented what a general agreement would look like between free citizens who are placed in reasonable conditions and who acknowledge having a sense of justice. Rawls modeled these reasonable conditions in terms of the so-called original position. In the original position, people would be represented by parties who are rational and mutually disinterested while behind a veil of ignorance (meaning that they only have access to the uncontroversial findings of the sciences and common sense, but not to knowledge about the social position, sex, or conception of the good of those they are representing). The original position is supplemented and kept in check by the notion of a "reflective equilibrium." This notion is introduced to make sure that the principles selected in the original position match up with our considered judgements (and so can find actual agreement among those who are subject to these principles). This two-fold methodology is used in order to examine different candidates for the principles of justice for the basic structure. In particular, Rawls argued that the following two principles of justice will come out 10 on top in comparison with other candidates: (1)

(2)

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; Social and economic inequalities are to satisfy two conditions: (a) they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and (b) they are to be to the greatest benefit of the least advantaged members of society (the difference principle).

The adoption of these principles would include giving the first principle lexical priority over the second and the first part of the second principle over the second part. A society that would be governed by these principles is called by Rawls a "well-ordered society." 13 In such a society, people accept and know everyone else to accept the same (political) conception of justice. Moreover, the basic structure of society is publicly known (or with good reasons believed) to satisfy those principles. Finally, citizens have an effective sense of justice, i.e. they understand the principles of justice and (for the most part) act accordingly. Rawls's theory was not only a renewal and modification of

4

Introduction

classical liberalism, but also of Kantian morality, facing the then dominant utilitarian theories as its main adversary. Even the two-fold procedure introduced above finds its model to some extent in the way Kant proceeds in the Groundwork of the Metaphysics of Morals. 15 The influence of Kant, however, is most visible in the conception of the original position itself, which was originally seen by Rawls as an interpretation of Kant's conception of morality. 16 It represents the idea of a rational agent choosing principles ofjustice independently from the contingencies of nature and society and while being aware of having principle-dependent desires (such as a sense of justice) that will need realization as much as other desires. Equally, the idea of the primacy of liberty (and the separateness of persons on which it relies) owes much to a Kantian outlook, according to which no one can be used as a mere means to the welfare of others. And, as it is also brought out in two chapters in this collection, Rawls took over the idea of the primacy of the practical from Kant, too. 17 Later, some of the explicit Kantian influences had to be given up by Rawls in the wake of his shift to political liberalism. However, Rawls's modification of Kant's conception of morality began already before this shift. In Chapter 8, Ana Marta Gonzalez explores the way Rawls's theory modified Kantian morality, and influenced—especially through his Lectures on the History of Moral Philosophy—a whole generation of moral theorists (such as Barbara Herman, Christine Korsgaard, Thomas Hill, Jr.). Rawls, Gonzalez points out, aimed to make Kant's moral philosophy more plausible, partly by putting more emphasis on Kant's ethical writings other than the Groundwork and partly by bringing Kant down to earth, linking his moral theory more to current culture and re-interpreting the Kantian dualisms. Chapter 8 offers an illuminating summary of what Kant did for Rawls and what Rawls did for the Kantians. As mentioned, the main adversary for Rawls was utilitarianism, 18 with intuitionism also playing a role, albeit a less central one. One reason for this might be that utilitarianism with its teleological structure of maximizing expected utility across people looks attractive for regulating the basic structure of society, e.g. because it offers one matrix with which to weigh up priorities. In fact, Rawls himself emphasized the suitability of utilitarianism for justifying the institution of punishment in an early paper. Nonetheless, Rawls rejected utilitarianism as providing the principles of justice, because— as he famously put it—"Utilitarianism does not take seriously the distinction between persons." 20 What it means to take this distinction seriously and how this disqualifies utilitarianism—as well as providing responses to other objections to Rawls— is explored in Chapter 3. Anthony Simon Laden argues here that the distinction between persons operates in Rawls's theory on four levels: the content of the principles of justice, the form the argument takes, the conception of (political) morality operative in the argument, and the conception of political

Introduction

5

philosophy all this implies. The reader should turn to Chapter 3 to see how Rawls's theory is able to absorb and deal with a host of criticisms by its very way of doing political philosophy. And criticisms there have been plenty. Ever since Rawls's system came to full prominence with the 1971 publication of A Theory of Justice 21 there has been an extensive and often fierce debate of his theory in all its different aspects. After Theory Rawls was initially engaged in answering objections, in particular in connection with distributive justice. The latter had become a focal point of the debate of his conception of justice, not least because of Nozick's detailed objections to it in his alternative account of how society 23 should be governed, his 1974 Anarchy, State, and Utopia. In this volume, Chapter 2 looks at a largely neglected aspect of Rawls's conception of distributive justice, namely, the priority of the principle of fair equality of opportunity over the difference principle. Robert Taylor reconstructs Rawls's argument for this priority, relying on the importance of the ideas of self-realization and virtuosity. He also looks at the implications of this priority for public policy. This chapter represents a much-needed addition to the literature on Rawls's two principles. However, Rawls not only had to defend himself on questions of distributive justice and the content of the principles of justice he proposed. He came into the firing line in respect to his general approach and assumptions as well. Feminists criticized Rawls's project for not paying sufficient attention to gender inequality, or even blocking the focus on this issue, by endorsing liberal neutrality as well as by being committed to the public/private dichotomy. Some of these feminist critics, most notably Susan Moller Okin24, 24 thought that the Rawlsian framework could be adopted to make room for their concerns. And Rawls did indeed follow Okin's suggestion of viewing the family as a social institution (and thereby regulated by the two principles of justice) and excluding the knowledge of one's sex from the items known in the original position.25 Other feminists have remained more critical of Rawls's project, partly because of more general worries about his conception of the person which they share with communitarians. 26 In Chapter 4, Elizabeth Brake continues Okin's project in suggesting that feminists have something to gain from working within and extending Rawls's project. She argues that the idea of fair equality of opportunity is not the only resource to be used to combat gender inequality. Rawls's endorsement of state neutrality is, according to Brake, also beneficial for this cause and not—as commentators like Catherine MacKinnon have maintained 27 7—an obstacle. The chapter by Brake is also of interest for a further reason. She offers Rawls a defense of a qualified account of neutrality at the justificatory level, addressing a problem left unsolved in Political Liberalism.

6

Introduction

The debate between communitarianism and liberalism, which occupied the profession for a significant amount of time, had also been partly sparked by 8 the publication of Theory.28 So-called communitarians objected to Rawls's account, among other reasons, for relying on a Kantian and liberal conception of morality and persons. Such a conception is seen as objectionable because it involved a controversial conception of the good, which in its formal and abstract character was too far removed from the ways of life and conceptions of the good which are integral to the identity of the people endorsing them.

From Theory to Political Liberalism In the early to mid-1980s, at the same time as the communitarian criticisms reached their peak, Rawls began to shift his own position. Commentators disagree as to whether this was in response to these criticisms or due to the attempt of making his own account more internally consistent. After a brief period of arguing for "Kantian constructivism," Rawls adopted what he called "political liberalism" (in contrast to the view of liberalism as a comprehensive doctrine). He, thus, restricted the role of justice for the second time. Apart from focusing on the basic structure of society only (and not on individual actions and judgements), Rawls now suggested limiting the basis from which the principles of justice could be drawn. He no longer saw himself as putting forward a comprehensive liberal doctrine with its Kantian conception of the person. Rather, Rawls now proposed to start with the conception of citizens which can be found in the public culture and traditions of modern democratic societies. From this conception, according to which citizens are free and equal, one can move to a family of conceptions ofjustice (of which Rawls's two principles is one example). One of these conceptions can then be used to lay down the constitutional essentials for such societies. Crucial in this shift was the acceptance of what Rawls calls the "fact of pluralism," i.e. the fact that in modern societies people hold very different comprehensive conceptions of the good which are—with a very few exceptions—all reasonable conceptions.33 This fact implied for Rawls that no one comprehensive conception of the good could govern the basic structure of society. Since there is reasonably disagreement about which particular conception of the good should be adopted, people could object to a regime built on one conception alone. In order to sustain itself such a regime would, thus, have to rely on oppressive use of state power—something which goes against the very grain of liberalism. However, and this was another of Rawls's crucial (as well as controversial) claims, an agreement on how to govern the basic structure is nonetheless possible. There is sufficient

Introduction

7

overlap between the different reasonable comprehensive conceptions of the good (namely, the conception of citizens as free and equal) to form such an agreement. Thus, the agreement on constitutional essentials can arise out of what Rawls calls an "overlapping consensus." For this to happen, the parties would have to rely on arguments which were independent of their particular conception of the good (i.e. on public reasons). This does not exclude that they have conception-immanent reasons for accepting the agreement, too. 36 In fact, Rawls hopes that they would, since this would add to the stability of a well-ordered society and thus make his vision more feasible. There has been much debate about this shift to political liberalism, which is not only limited to the already mentioned question about consistency with Rawls's earlier work. One of the major issues has been whether it is desirable and possible to have a political conception of justice only. Jon Mahoney takes up this question of the moral foundation of political liberalism in Chapter 5. He argues that—contrary to what Rawls thinks—political liberalism cannot and should not be thought of as freestanding. Rather, it must claim to express the philosophical truth about practical reason and persons if it wants to avoid being either dogmatic or indistinguishable from a modus Vivendi. Chapters 6 and 7 concern the question whether the idea of public reason is too restrictive. Robert Talisse argues that public reason is unstable. Insisting on only reasonable comprehensive doctrines being admissible and limiting political agreement to what can be argued for in public reasons would lead, according to Talisse, to the polarization of those excluded and thereby to instability. James Boettcher, on the other hand, tries to show how Rawls's idea of public reason is less restrictive than critics allege. Focusing particularly on religion and public reason, his discussion aims to demonstrate that the constraints in Rawls's idea of public reason are neither unfair, nor unfeasible, nor do they result in adverse social consequences. These two chapters offer—from two opposed sides—an interesting perspective on the very topical issue of how we can justify political decisions and what conceptions of the good can be excluded in so doing. The themes of pluralism and finding an agreement about the principles governing the basic structure under the condition of reasonable pluralism are further explored in Chapter 10. Fred D'Agostino brings out how the background of evaluative pluralism made Rawls search for a method of commensuration of different proposals for constitutional essentials. He argues that the original position is a form of commensuration as separation and that Rawls's method is ultimately pragmatist in nature. D'Agostino suggests that the background of evaluative pluralism, the object of agreement on constitutional essentials under this background condition and the pragmatist method of achieving this represent the three important legacies of Rawls.

8

Introduction Extending political liberalism outward: global justice

Apart from the discussions sparked by Rawls's move to political liberalism and the issues which surround this, much of the recent debates have focused on the extension of Rawls's theory of justice to the international realm. In fact, the interest in Rawls and global justice arose before Rawls himself considered this issue in detail. Some philosophers, most notably Charles Beitz, argued that principles of justice should not be conceived merely as intra-state—as Rawls had conceived them at that time—but that principles of justice should be conceived as being global. For Beitz and others, it was not obviously true that individual states were the only units of sufficient cooperation and that "the justice of the law of nations and of relations between states" was beyond the remit of the two principles of justice as Rawls had claimed it is. 38 Beitz argued that significant cooperation existed at the global level as well. Hence, for him the only difference between Rawlsian justice at the domestic and global levels is that "[t]he principles of justice for international politics would be the two principles for domestic society writ large." To choose these principle for global justice we should, according to Beitz, adopt an "international original position." 40 The idea of using the original position to arrive at principles ofjustice for the international realm was something that Rawls himself had anticipated in 41 Theory.41 Consequently, when he did finally turn to extending political liberal-

ism to the global sphere, this was partly just due to him wanting to complete his theory. However, that Rawls felt the need to provide his oumaccountofthiss extension might have also resulted from his disagreement with the extensions offered on his behalf by Beitz and Thomas Pogge. In contrast to these commentators, Rawls thinks that peoples (rather than individuals) should be represented in the international original position and that international redistribution should not take the form of a global difference principle, but be limited to a duty of assistance. 43 With the publication of Rawls's views on global justice, criticism turned from what Rawls had failed to develop to how he thought it should be developed. In particular, the focus has been on the two issues just mentioned, namely, who should be represented in the international original position and what form international redistribution should take. Also, concerns have been raised about whether Rawls is too permissive in admitting non-liberal, but decent societies into the group of peoples being represented in the international original position. It is the latter issue which is taken up in Chapter 9, along with the attempt to fill in a surprising gap in the commentary on Rawls's theory, namely a discussion of the two different versions of "Law of Peoples." Although being ultimately critical of both versions, Chris Naticchia identifies important differences between them. This makes this chapter an important resource for the engagement with Rawls on this highly salient issue.

Introduction

9

Looking ahead So far in this introduction, we have sought to give an indication of the development of Rawls's thought and the debates surrounding it, while highlighting how the topics covered in this volume fit into this story. It might be useful to also look ahead and offer a suggestion as to what areas connected to Rawls's legacy are, in our opinion, likely to remain live issues. Many of the most significant legacies John Rawls's work has left us are discussed in the essays comprising this volume. However, while we cover the vast majority of relevant areas, no single volume could capture them all. Consequently, in the following we also highlight some of the additional areas where Rawls's work has made a contribution. Completing the system From within a Rawlsian perspective, there are two particular areas which require further attention. Both our relations with nature and our duties to those liberal citizens who cannot fully cooperate are issues where Rawls's system is still in need of extension. As for the former area, some work has already been done on combining a Rawlsian picture with environmental ethics and animal rights issues. 47 We expect that this will continue and possibly intensify. Equally, there has been a heightened interest in the second area, our duties to those who cannot fully cooperate. This can, for example, be seen from the related, albeit wider issues in medical and bioethics which have been taken up by an increasing number of commentators who apply Rawls's framework or work out its implications. 48 The ground in this area was broken by Norman Daniels. Since the late 1970s, Daniels has been critically applying Rawls's theory of justice to considerations of distributive justice and health care. 49 Daniels argues that health care should be regulated by principles of justice which ensure fair equality of opportunity. He sets out not only to show how principles of justice are applicable to bioethics, but also to demonstrate various policy outcomes we should adopt as well. Nor is Daniels the only one engaged in these kinds of issues today. One increasing area of concern is genetic engineering. While a relatively new area, some, such as David Resnik, have begun to apply Rawlsian principles to how we should consider these questions. In this case, Resnik argues that genetic inequalities are acceptable in principle only if they are to everyone's advantage and do not interfere with the fair equality of opportunity open to all.50 Genetic engineering is not the only specific area of bioethics where some have sought to apply Rawlsian principles. Some employ Rawls's "original

10

Introduction

position" to answer questions about whether or not we should use placebos in clinical trials as their use may withhold treatment from patients. 51 Others have used Rawls's theory of justice more broadly to argue positions, such as 52 the fairness of patent systems and access to medicine. Medicine, and the biological sciences related to it, continually presents us with exciting new possibilities and ethical considerations. Rawls's views on justice have been of increasing interest to scholars working on bioethics. We believe that this area will be a continuing area of great influence of Rawls's ideas. Matters of debate As we have seen already, Rawls's theory sparked a number of debates and controversies. Amongst these debates are some which have quieted down in recent years and some which are still in full swing. Debates which seem to have reached their height are, for example, the famous liberal-communitarian debate and the topic of multiculturalism, which partly arose out of the former. Neither of them is directly discussed in this volume. The reason for this is not that we believe either debate is conclusively decided one way or another. Our view is simply that debates in these areas have quieted dramatically in the past few years, in contradistinction to other areas such as global justice or public reason. Another example of a debate which though not settled has lost some of its salience is distributive justice. Here, our volume contains one essay which, as mentioned, takes up a neglected aspect of this debate, namely, the priority of the principle of fair equality over the difference principle. 53 Equally, while debates in feminism might have moved on slightly from discussion of Rawls's theory, Chapter 4 shows that this theory still offers interesting resources to feminism. As for those issues which are still very much alive and will remain so for some time, our volume covers the most relevant of them. Take the example of global justice. This is one area where Rawls's legacy, especially regarding the relationship between his views and global justice, is still very much a matter of debate. A lot of new work has been published on this topic, most especially the latest collection of essays The Ethics of Assistance edited by Deen Chatterjee. We believe that for the foreseeable future most interest in Rawls will relate to considerations of global justice. This collection appropriately begins with Leif Wenar's argument for why we should see consistency across Rawls's major works, from Theory through to The Law of Peoples. We end with Chris Naticchia's examination of Rawls's different versions of The Law of Peoples. We do not want to suggest for a moment that global justice is the beginning

Introduction

11

and end of Rawls's legacy. However, this is the area that has generated the most interest in recent years, and this is reflected in this volume. Similarly, the other issues related to Rawls's work which are still a matter of intense debate are also covered by our volume. Thus, the question of the consistency of Rawls's work is addressed in Chapter 1, the debate about the relation of Rawls's conception of justice with moral foundations is taken up in Chapter 5, and Chapters 6 and 7 discuss Rawls's conception of public reason. However, Rawls has been influential not only in terms of the content of moral and political philosophy, but also in the way these disciplines proceed. And perhaps his most lasting influence is in this respect as Chapters 3 and 10 highlight, among other things. Moreover, Rawls's influence on the way moral and political philosophy is carried out extends further than just the way contemporary theorists approach current debates. He also changed our way of doing history of philosophy. Rawls and the history of philosophy It is this area where Rawls's legacy is being perhaps only slowly recognized. He held a sincere interest in the history of philosophy, especially in, but not restricted to, the history of ethics. The study of intellectual history is a project of great importance that can often further our understanding of more contemporary problems. Yet, for Rawls, our interest in important texts is not just limited to what they can contribute to contemporary problems. In fact, studying these texts should be more than an attempt to show how each faces insurmountable problems in light of any philosophical advances we might have made: We don't study them in the hope of finding some philosophical argument, some analytic idea that will be directly useful for our present-day philosophical questions in the way they arise for us. No, we study Hume, Leibniz, and Kant because they express deep and distinctive philosophical doctrines.56 This approach to the study of history of philosophy has been attractive to many of his students, as is, for example, witnessed by a collection of essays written by his students from over the years. Given the popular appeal of much else of his views, we imagine Rawls's approach here will become increasingly attractive to philosophers with the recent publication of his Lectures on the His58 tory of Moral Philosophy. It has been well known that Rawls held a particular interest in Immanuel Kant. Indeed, we have already mentioned Ana Marta Gonzalez's chapter in this collection, entitled "John Rawls and the new Kantian moral theory,"

12

Introduction

which sets out to explain how Rawls's reading of Kant has been an important influence on the work of Kantian scholars. As the students' collection mentioned above makes clear, Rawls held an interest in a number of philosophers other than Kant (the collection was entitled Reclaiming the History of Ethics). One great merit of Rawls's recently published Lectures is that it gives us at long last his mature views of Hume, Leibniz, and Kant. The Lectures also discuss Hegel. Many before had noticed important similarities between the views of Rawls and Hegel, such as Stephen 59 Houlgate and Sibyl Schwarzenbach. However, these scholars lacked much direct evidence: Rawls rarely mentions Hegel. Instead, scholars have had to try to draw strong inferences from Rawls's and Hegel's related ideas. With the publication of his Lectures, Rawls's particular interest in Hegel's concept of "Ethical Life [Sittlichkeif]" is explicit and the importance of Hegel's work for Rawls far more clear. Barbara Herman even claims that "the Hegel lectures sketch the bridge between Kantian moral thought and the liberalism of Rawls's own work." 61 We imagine that philosophers will continue to be interested in both Rawls's contributions to the history of philosophy—and the contributions of important figures in the history of philosophy to Rawls's work. Much of the attention has been on more obvious relationships between Rawls and Western philosophers. Unfortunately, there have been far too few attempts to relate Rawls's theory of justice as fairness with the Eastern philosophical tradition. 62 We can only hope that future scholars will pursue this route too. Reaching into the real world: Rawls and law While Rawls's legacy will live on within academia, both in terms of the on-going debates that his work has sparked and the framework he has provided, it is also of interest to see how his thought might exert influence beyond the academic realm. Such influence was surely Rawls's hope, not merely because every philosopher might wish for his or her theories to have an effect on the world, but also because of his concern with presenting what is a workable and feasible Utopia. True, Rawls's work contains a high level of abstractions and theoretical complexity, but this he deemed necessary to arrive at what the nature of justice is under favorable conditions (which might not coincide with actual conditions) and was, hence, not apologetic about it.63 One example where Rawls's work has reached into the actual working of social institutions is law, with legal theorists and many judges showing especially great interest in it. For example, the Fordham Law Review recently published a special symposium on Rawls and law, in which Ronald Dworkin says:

Introduction

13

Politicians around the world cite his ideas and American and other judges appeal to his work, so we might talk about the impact that has already had on the law in different countries. Or we might consider the impact that he might have: We might ask what changes in American tax or tort law his famous difference principle would recommend. 65 Indeed, Rawls's work has the great benefit of being clearly applicable to law, in terms of supplying both useful principles of justice and a framework for consideringjustice. 66 Thus far, Rawls is very rarely mentioned in the decisions of high courts. Instead, he has been more popular with lower appellate courts. As Dworkin hints above, many judges have been interested in the idea of applying Rawlsian ideas to help decide cases and issues of law. One example is the case Goetz v. Crossnan where the court argues: Whatever ratio one selects, procedural protections must be fashioned to give some reasonable assurance that the pattern of erroneous releases and erroneous confinements will approximate the ratio that one finds tolerable. And in setting the ratio and formulating the appropriate procedural protections to achieve it, we would do well to consider the matter from behind John Rawls's veil of ignorance: we should select a pattern we would find tolerable not knowing whether we would be one of those erroneously confined.68 There are many other examples we could also cite that take a similar position: Rawls's theory ofjustice is applicable to helping decide cases and issues of law. Not all courts agree with this view, however. For example, in Martin v. Duggerthe court argues: In resolving issues of this type, an economist is perhaps better situated than a federal judge. An economist could handle questions like this in the wonderful world of perfect competition. The court is not that lucky. Of course, if the court was a [sic] fortunate, it could situate itself behind a "veil of ignorance" ... Behind this veil, the court would "use the notion of pure procedural justice as a basis of theory" .. . The court would have no conception of the good, and would not understand its role within society ... The Rawls [sic] original position is an attractive situation. Unfortunately, this position does not include an individual like Nollie Lee Martin, who stabbed Patricia Greenfield only after his attempts to strangle her to death failed. Accordingly, the court will reach this issue fully cognizant of the fact that this eighth amendment right arises only after a human like Martin has been convicted of murder. 69

14

Introduction

Here the difference of opinion between Goetz and Martin is that the latter decision expresses worries about the applicability of Rawls's ideas. The argument in Martin for why the court thinks it is unable to decide the case as if they sat behind a veil of ignorance seems to be as follows. The court is constrained by the U.S. Constitution (in particular, Martin's protection against cruel and unusual punishments guaranteed by the Eighth Amendment), and to decide as if they were in Rawls's original position would be as if they have a right to settle constitutional essentials for which this device was thought up. However, it is not and should not be the role of courts to decide what the constitutional essentials are, but to judge in accordance with them. It is, however, arguable that the court misses the substance of Rawls's claim. One can grant that it is true as a point of law that the court in Martin is certainly obliged to follow constitutional provisions and relevant judicial precedents. But this need not entail that Rawls's veil of ignorance has no currency for judges. In fact, it might be the other way around, i.e. because the original position is to be used—at least, on Rawls's picture—to establish the constitutional essentials, the courts might need to have recourse to it in order to establish in what ways it has to uphold these essentials. For example, what are "cruel and unusual punishments" which are forbidden by the Eighth Amendment? Here, the use of the original position and veil of ignorance is far from irrelevant, since it seems to provide a test for determining what kinds of punishments are "cruel and unusual." Similarly, constitutional provisions and judicial precedents are not set forever in stone: they may change over time. Consequently, it is important to have a procedure by which changes and amendments to laws and the Constitution could be tested to determine whether they should be accepted or whether they are invalid given the constitutional tradition. Once more, it would seem that the original position with its veil of ignorance would be the relevant procedure, because it tells us whether persons would agree to any constitutional protections, why they would agree to them, and what would serve as these protections. There are many further fruitful applications of Rawls's views on law. It is true that his work has been far more popular with lawyers than judges: despite their being relatively few court decisions that mention him, his name appears in over 4,200 documents on Westlaw. Much of the attention here relates to the U.S. Supreme Court cases Vacco v. Quill—where the Court held that state bans against assisted suicide do not violate the Equal Protection Clause of the U.S. Constitution's Fourteenth Amendment—and Washington v. Glucksberg—where the Court held that state bans against assisted suicide do not violate the Due Process Clause of the Fourteenth Amendment. Why the attention on Rawls's philosophy with respect to these two decisions relating to assisted suicide? This is due to the now

Introduction

15

famous "Philosopher's Brief" he wrote along with Ronald Dworkin, Thomas Nagel, Robert Nozick, T.M. Scanlon, and Judith Jarvis Thompson.73 One of the major issues raised by the Philosopher's Brief was the question of to what extent should the Court take seriously the considered concerns of some of the most important moral and political philosophers in America. Some legal theorists, such as Neomi Rao in an influential article published in the University of Chicago Law Review, argued that it was right that the U.S. Supreme Court decision took no notice of the Philosopher's Brief. Rao argues that the Court only tends to use philosophers to "support" controversial decisions when the Court is attempting to justify certain political decisions beyond, or in contravention to, existing precedent. This view is challenged by others who argue that there is nothing worrisome about using the arguments of philosophers to support legal decisions. Rao claims there is ample evidence to think that judges have employed philosophers in order to justify decisions that constitutional provisions and relevant judicial precedents do not support, such as in the case Roe v. Wade. 76 However, the use of philosophers—in this case Plato—only appears in a broad historical overview of Western civilization's responses to abortion and not as part of the distinct justification of the particular decision. There is nothing illegitimate in itself in the use of philosophers by the courts in judicial decisions. Moreover, one could argue that the U.S. Supreme Court was incorrect to ignore the Philosopher's Brief, even if one disagreed about the relevance of philosophy to court decisions. Rawls et al. cite twenty cases, two statutory provisions, two journals, and one book on jurisprudence. They do not cite philosophers or their own works. Other philosophers, such as Catherine MacKinnon, may well have been more successful than Rawls in helping frame and draft legislation in the United states and Canada. However, as this discussion has endeavored to show, there is no good reason to think philosophers lack something of importance to contribute to the practice and development of law in America and elsewhere. Furthermore, there is every reason to think that more work will be done in the future on how Rawlsian principles ofjustice and important aspects of it, such as the original position, the veil of ignorance, and the difference principle, should help shape it.

Conclusion We started this introduction with a quote from Robert Nozick according to which post-Rawls moral and political philosophy must work within his framework or explain why it does not do so. We believe that this is still the case and will continue to be the case for some time to come. This volume is meant to

16

Introduction

help those engaged in the field to understand better what Rawl's theory consists in and where the live issues in it lie. In this way it is hoping to pay tribute to a wonderful person, a great philosopher, and his beautiful theory. Notes 1. 2.

R. Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 183. See Ch. 1 (LeifWenar, "The unity of Rawls's work").

3.

Nozick, Anarchy, State, and Utopia,183.

4.

In a 1998 interview Rawls described his aims in Theory as setting out "a certain classical theory of justice—the theory of the social contract—so as to make it immune to various traditional objections" (CP, 617; cf TJ, xviii/original edn, viii;CP, 614). There are other factors which explain this, too. For example, C. Kukathas and P. Pettit point out that pre-Rawls twentieth-century political theory was characterized by a sharp divide between studies of what is desirable and what is feasible; Rawls is credited with putting them back together (see their Rawls—A Theory of Justice and its Critics (Cambridge, UK: Polity Press, 1990), Ch. 1). Another important factor in explaining the influence of Rawls is not merely what he attempted to do, but how he attempted to do it. On this see Ch. 3, especially the fourth section and Ch. 10, the second section. TJ, 7/original edn, 7. Rawls later developed his defense on the basic structure as primary subject of justice. See e.g. PL, Lecture VII: "The Basic Structure as Subject;" cf. JF, §§15f. See his "The Law of the Peoples" (reprinted in CP, Ch. 24) and the revised LP. For a brief summary of Rawls's theory of global justice see Ch. 1; for a detailed discussion see Ch. 9 (Chris Naticchia, "The Law of the peoples: the old and the new"). TJ, Ch. 3; PL, Lecture I, §4; JF, §6. TJ, 18f, 42-5/original edn, 20f, 48-51; JF, §10. TJ, Ch. 3; JF, Part III. For a brief overview of the argument see Ch. 1. JF, 42f. We quote here the most considered version of the two principles. For a comparison with the earlier versions see Rawls's "The Basic Liberties and Their Priority" in PL, Lecture VIII and the summary thereof in JF, 42—5. On the lexical priority of the first principle, see TJ, §§11, 39, 46, 82; PL, Lecture V; JF, §30. On the arguments for this second priority see TJ, §§14, 46; JF, 43, 163n44; and also Ch. 2 (Robert S. Taylor, "Self-realization and the priority of fair equality of opportunity"). TJ, §69; PL, Lecture I, §6; JF, §3. TJ, xif, xviif./original edn, viif. Kant said he wanted first to work up "from common cognition to the development of its supreme principle," and then down from "this principle and its sources back to the common cognition in which we find it used" (I. Kant; Practical Philosophy, translated by Mary J. Gregor (Cambridge, UK: Cambridge University

5.

6.

7.

8. 9. 10. 11.

12.

13. 14. 15.

Introduction

16. 17.

18. 19. 20. 21.

22. 23. 24. 25. 26.

27. 28. 29.

30. 31.

32.

17

Press, 1996), p. 47). The move up from common consciousness to the moral law parallels the notion of reaching a reflective equilibrium; the move down is captured well in Rawls by the original position and the four-stage sequence of adopting and applying the principles of justice into legislation and practice (on this sequence see TJ,§31). TJ, §40. See Chs 8 (Ana Marta Gonzalez, "John Rawls and the new Kantian moral theory") and 10 (D'Agostino, "The legacies of John Rawls"). On the latter see e.g. TJ, §7. See his 1955 paper "Two Concepts of Rules," reprinted in CP, Ch. 2. TJ,24/original edn, 27. Rawls's conception of justice and his approach to moral and political philosophy were foreshadowed in a series of earlier papers from the early 1950s onwards (see CP, Chs 1-10). See CP, Chs 11, 12. See note 1 for details. See e.g. her Justice, Gender, and the Family (New York: Basic Books, 1989). JF, §§4, 6, 50. See e.g. Seyla Benhabib, "The Generalized and the Concrete Other: The Kohlberg-Gilligan Controversy and Feminist Theory," in E. F. Kittay (ed.), Women and Moral Theory (Totowa: Rowman and Littlefield, 1987), 154-77. See e.g. Catherine MacKinnon, Towards a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989). For an excellent overview of this debate see Stephen Mulhall and Adam Swift, Liberals and Communitarians (Oxford, UK: Basil Blackwell, 1992). For example, communitarians also rejected the idea of neutrality of the state, because it deprived the political sphere of the possibility of realizing communal goods and identities that allegedly are its lifeblood. This objection might be based on a misreading of Rawls to some extent (see e.g. Kukathas and Pettit, "Rawls," 11—16). After all, Rawls views—as early as Theory (TJ, §79)—political justice as a good and the well-ordered society as "social union of unions" (see also JF,§60). See e.g. Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge, UK: Cambridge University Press, 1982). Rawls explicitly denies any direct influence of communitarian criticisms on his decision to abandon comprehensive for political liberalism (see PL (paperback edn only), xix n6). However, the influence could have been more indirect. Perhaps, the external criticisms drove home the point to Rawls that modern society is pluralistic in a way that would make unstable a society organized on one comprehensive doctrine alone. CP, Chs 16, 17. Kantian constructivism represents more a shift in emphasis than in substance. In his 1980 Dewey Lectures, Rawls brings the Kantian conception of free and equal persons as reasonable and rational more to the forefront of his theory. He more openly connects this conception with the set-up of the original position, which is consequently seen as validating moral concepts without relying

18

33.

34. 35. 36.

37.

38. 39. 40. 41.

42. 43. 44.

45. 46. 47.

Introduction on claims about their reality (and in this sense "constructing" them). For a recent discussion of Rawls's constructivism (and a comparison with constructivism in Kant) see O. O'Neill, "Constructivism in Rawls and Kant," in S. Freeman (ed.), The Cambridge Companion to Rawls (Cambridge, UK: Cambridge University Press, 2003), 347-67. PL, 36f.; JF, §11. That there is the possibility for their being more than one reasonable conception of the good has to do, according to Rawls, with the burdens of judgement, which e.g. include that the evidence might be conflicting and that people might disagree over how to weigh it (PL, Lecture II, §2; JF, §11.4). See PL, 37; JF, §11.3. PL, Lecture IV; JF,§§11, 58; CP, Ch. 20. Rawls even allowed in a later revision of his conception of public reason (PRR, reprinted in CP, Ch. 26) that people can bring in these conception-immanent reasons in public debate, as long as they connect them at some stage with public reasons (see "Introduction to the Paperback Edition," in PL (paperback edition only), xxxvii—1xii (1—1vii); JF, 96). First, in 1993, in an article ("Law of Peoples," reprinted in CP, Ch. 24) and then in an extended and revised version of this article published as a book (LP). On a comparison and critique of the versions see Ch. 10 below. TJ, 7/original edn, 7f. Charles R. Beitz, "Justice and International Relations," Philosophy and Public Affairs 4 (1975), 360-89 (363). Ibid., 366. He writes that "one may extend the interpretation of the original position and think of the parties as representatives of different nations who must choose together the fundamental principles to adjudicate conflicting claims among states" (TJ, 331/original edn, 378). For the latter, see Thomas Pogge, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989), Part 3. Rawls contrasts and discusses both Pogge and Beitz in the book version of his essay on global justice (LP, 82f, 113-20). See Simon Caney, "CosmopolitanJustice and Equalizing Opportunities,"Metaphilosophy 32 (2001), 113-34; Andrew Juper, "Rawlsian Global Justice: Beyond 'The Law of Peoples' to a Cosmopolitan Law of Persons," Political Theory 28 (2000), 640-74; Thomas W. Pogge, "An Egalitarian Law of Peoples," Philosophy and Public Affairs 23 (1994), 195-224); and Pogge, "Rawls on International Justice," Philosophical Quarterly 51 (2001), 246-53. See Leif Wenar, "Contractualism and Global Economic Justice," Metaphilosophy 32 (2001), 79-94. See Ch. 10 on this. On Rawls and environmental ethics see e.g. Brent A. Singer, "An Extension of Rawls" Theory of Justice to Environmental Ethics," Environmental Ethics 10 (1988), 217—32; and the literature review by Daniel P. Thero, "Rawls and Environmental Ethics: A Critical Examination of the Literature," Environmental Ethics 17 (1995), 93-105. On the issue of animal rights and Rawls see e.g. Mark

Introduction

48.

49. 50.

51.

52. 53. 54.

55.

19

Bernstein, "Contractualism and Animals," Philosophical Studies 86 (1997), 49-72; Peter Carruthers, The Animals Issue: Moral Theory in Practice (Cambridge, UK: Cambridge University Press, 1992); Daniel A. Dombrowski, "Rawls and Animals," International Journal of Applied Philosophy 12 (1998), 63-77; Mark Rowlands, "Contractarianism and Animal Rights," Journal of Applied Philosophy 14 (1997), 235-47. See Donald C. Ainslie, "Bioethics and the Problem of Pluralism," Social Philosophy and Policy 19 (2002), 1-28; Derek R. Bell, "Rawls and Research on Cognitively Impaired Patients: A Reply to Maio," Theoretical Medicine and Bioethics 24 (2003), 381-93; Giovanni Maio, "The Relevance of Rawls" Principle of justice for Research on Cognitively Impaired Patients," Theoretical Medicine and Bioethics 23 (2002), 45-53; Maio, "Research Ethics and the Principle of Justice as Fairness—A Restatement," Theoretical Medicine and Bioethics 24 (2003), 395-406; Jonathan D. Moreno, "Consensus, Contracts, and Committees," Journal of Medicine and Philosophy (1991), 393-408; and Robert M. Veatch, "Egalitarian and Maximin Theories of Justice: Directed Donation of Organs for Transplant," Journal of Medicine and Philosophy 23 (1998), 456-76. See especially his Just Health Care (Cambridge, UK: Cambridge University Press, 1985). See David B. Resnik, "Genetic Engineering and Social Justice: A Rawlsian Approach," Social Theory and Practice 23 (1997), 427-48. See also Jonathan Brown, "Genetic Manipulation in Humans as a Matter of Rawlsian Justice," Social Theory and Practice 27 (2001), 83-110 and Colin Farrelly, "Genes and Social Justice: A Rawlsian Reply to Moore," Bioethics 16 (2002), 72-83. See Stephen Senn, "Ethical Considerations Concerning Treatment Allocation in Drug Development Trials," Statistical Methods in Medical Research 11 (2002), 403-11. See David B. Resnik, "Fair Drug Prices and the Patent System," Health Care Analysis 12 (2004), 91-115. See Ch. 2. See Simon Caney, "Cosmopolitanism and the Law of Peoples," Journal of Political Philosophy 10 (2002), 95-123; Eric Cavallero, "Popular Sovereignty and the Law of Peoples," Legal Theory 9 (2003), 181-200; Pierre Laberge, "Humanitarian Intervention: Three Ethical Positions," Ethics and International Affairs 9 (1995), 15—35; Chris Naticchia, "Human Rights, Liberalism, and Rawls's Law of Peoples," Social Theory and Practice 24 (1998), 345-74; David A. Reidy, "Rawls on International Justice—a Defense," Political Theory 32 (2004), 291-319; KokChor Tan, "Liberal Toleration in Rawls's Law of Peoples," Ethics 108 (1998), 276-95; Fernando R. Teson, "The Rawlsian Theory of International Law," Ethics and International Affairs 9 (1995), 79-99; and Leif Wenar, "The Legitimacy of Peoples," in P. de Greiff (ed.), Global Justice and Transnational Politics (Cambridge, MA: MIT, 2002), 53-76. TheEthics of Assistance: Morality and the Distant Needy(Cambridge, UK: Cambridge University Press, 2004). See particularly the contributions by Charles Beitz, Thomas Pogge, Erin Kelly, Martha Nussbaum, and Peter Singer (Chs 2,8-10,13).

20 56. 57.

58. 59.

60. 61. 62.

63. 64.

65.

66.

67.

68. 69. 70.

71.

Introduction LHMP, 329. Cf. Martha C. Nussbaum, "Conversing with the Tradition: John Rawls and the History of Ethics," Ethics 109.2 (1999), 424-30 (425). Andrews Reath, Barbara Herman, and Christine M. Korsgaard (eds), Reclaiming the History of Ethics: Essays for John Rawls (Cambridge, UK: Cambridge University Press, 1997). A further volume of lectures, on the history of political philosophy, is forthcoming. See Peter Benson, "Rawls, Hegel, and Personhood: A Reply to Sibyl Schwarzenbach," Political Theory 22 (1994), 491-500; Stephen Houlgate, "Hegel, Rawls, and the Rational state," in Robert R. Williams (ed.), Beyond Liberalism and Communitarianism: Studies in Hegel's Philosophy of Right (Albany: SUNY, 2001), 249-73; Sibyl A. Schwarzenbach, "Rawls, Hegel, and Communitarianism," Political Theory (1991), 539—71; and Schwarzenbach, "A Rejoinder to Peter Benson," Political Theory22 (1994), 501-7. LHMP, 327-71. Barbara Herman, "Editor's Foreword," in LHMP, xi—xix (xv). See Chung-ying Cheng, "Critical Reflections on Rawlsian Justice versus Confucian Justice," Journal of Chinese Philosophy 24.4 (1997), 417-26 and Ruiping Fan, "Confucian and Rawlsian Views of Justice: A Comparison," Journal of Chinese Philosophy 24 (1997), 427-56. See his "Introduction to the Paperback Edition," 1xii. For example, see Frank I. Michelman, "Rawls on Constitutionalism and Constitutional Law," in Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge, UK: Cambridge University Press, 2003), 394-425; John E. Roemer, "Three Egalitarian Views and American Law," Law and Philosophy 20 (2001), 433-60. Ronald Dworkin, "Rawls and the Law," Fordham Law Review 72 (2004), 1387405 (1387). On tort law, see Benjamin C. Zipursky, "Rawls in Tort Theory: Themes and Counter-Themes," Fordham Law Review 72 (2004), 1923—40. However, see Robert G. Black and Others, Carrying on the Practice of Law under the Firm Name of Black and Company v. The Law Society of Alberta [1989] 3 C.M.L.R. 288 Sup Ct C (Canada), 313nn56, 58. Rawls is briefly mentioned in this case heard before Canada's Supreme Court. For example, see Uhl v. Thoroughbred Technology and Telecommunications, Inc., 2001 WL 987840, S.D. Ind., Aug. 28, 2001; Jensen v ARA Services, Inc., 736 S.W. 2d 374, Mo., Sept. 15, 1987; and Parks v. Union Carbide Corp., 602 S.W. 2d 188, Mo. June 10, 1980. Goetzv.Crossnan, 967 F 2d, USLW 2010, 2nd Cir. (NY), June 10, 1992 at 39. Martin v. Dugger, 686 F. Supp. 1523, 1569nl8, S.D. Fla., June 1, 1988. On this issue Rawls suggests that the amendments to the Constitution should be accepted only when they either (a) bring it "more in line with its original promise," or (b) "adapt basic institutions in order to remove weaknesses that come to light in subsequent constitutional practices" (PL, 238f.). See Vacco v. Quill, 521 U.S. 793 (1997) and Washington v Glucksberg, 521 U.S. 702 (1997).

Introduction 72.

21

See Paul J. Weithman, "Of Assisted Suicide and 'The Philosophers' Brief," Ethics 109 (1999), 548-78. 73. See R. Dworkin, P.L. Zimroth, and A. Krash, "Brief of Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thompson as Amici Curiae in Support of Respondents," Glucksberg, 521 U.S. 702 (1997) (Nos 95-1858, 96-110), also published in Issues in Law and Medicine 15 (1999), 183-98. 74. Neomi Rao, "A Backdoor to Policy Making: The Use of Philosophers by the Supreme Court," University of Chicago Law Remew f>5 (1998), 1371—401. 75. See Thorn Brooks, "Does Philosophy Have a Place at the Supreme Court?" Rutgers Law Record 27 (2003), 1-35. 76. Roev. Wade, 4:10 U.S. 113 (1973). 77. See Brooks, "Does Philosophy Have a Place at the Supreme Court?" 15-22. 78. It should be noted that it is not entirely clear that the Court actually avoids any engagement with the Philosopher's Brief. (See ibid., 22—8.)

1 The unity of Rawls's work Leif Wenar

Of the many criticisms of Rawls's work, among the sharpest have been those charging inconsistency. Rawls's later work has been accused of contradicting nearly everything that made his earlier work important. Rawls's second book, Political Liberalism, attracted a great deal of censure on this score. Many worried that Rawls's new-found concerns with stability and consensus had resulted, in the words of one critic, in "a slighting of economic

justice and the plight of the worst-off, which was central in Theory of Justice." 1 The difference principle, it was feared, had been "sacrificed," or at least "drowned out." Bruce Ackerman complained that: "The egalitarian commitment of A Theory of Justice does not survive the movement to Political Liberalism . .. Rawls is wrong, then, to suppose that his new commitment to political liberalism is compatible with his older commitments to the original position 4 and equality." Other critics charged that the "radical change" of turning justice as fairness into a political conception limited its relevance by making the theory applicable only to societies that were already liberal. This "parochialism" struck some as "disappointing"; other critics accused him of "morally criticizable backsliding"; and at least one author claimed that Rawls "appears to have jettisoned the project of justifying liberalism" altogether. Brian Barry, reflecting on this "bad book by a famous author," remarked that "since there is a widespread feeling that Political Liberalism does not succeed in fulfilling its stated task, the conclusion is naturally drawn that the whole Rawlsian project is fatally flawed." Perry Anderson's verdict was that "Rawls's new book is thus not a development of his earlier work: it is an amputation of it. The burden of Political Liberalism is an intellectual renunciation, rather than any 11 substantive addition." Rawls's third book was then charged with double betrayal. The Law of Peoples was accused of undermining both A Theory of Justice and Political Liberalism. Some critics objected that Rawls's idea of a people was neither "clear enough" 12 nor "significant enough in the human world" to displace the focus on persons in justice as fairness. Some were perplexed that the highly progressive principles of A Theory of Justice were replaced in the international realm by

The unity ofRawls's work

23

"timid" principles from a "vanished Westphalian world." Others complained that Rawls's willingness to tolerate illiberal societies was not only "a betrayal of liberalism," 15 but also "blatantly inconsistent" with his treatment of illiberal minorities in Political Liberalism. In sum, Rawls's critics have charged "philosophical incoherence." Whatever the value ofRawls's particular arguments, the sense among many theorists is that these arguments do not fit together. Rawls's later additions have dragged down the original structure, and the best that Rawlsians can hope for is that something could be built with the wreckage. This chapter attempts to respond to these criticisms by laying out a systematic interpretation ofRawls's work as a whole. Rawls's work can indeed be seen to present a unified theory, whose power comes from the mutual support of its parts. Elsewhere I have drawn on this unifying interpretation to explain why Rawls went the way he did at particular points—for example, why he framed his global theory in terms of peoples instead of persons, and why he rejected an international difference principle. In this chapter, I survey the entirety of the Rawlsian theoretical architecture, attempting to show how the major structural concepts in Rawls's works fit together. The challenge taken up here is, essentially, to "use all of these Rawlsian words in one sentence." The interpretation will be successful if the reader agrees that this "sentence" lays out a consistent and interesting political philosophy, and one that remains true to the texts that Rawls wrote. The reconstruction that follows is organized around the ideas of justice and legitimacy. Justice is a familiar theme from Rawls's work, yet the interpretation here assumes that the idea of legitimacy is at least as important to Rawls's project. An emphasis on legitimacy is essential, I believe, for understanding the motivation behind many ofRawls's arguments, as well as how these arguments are intended to support one another. The importance of legitimacy to Rawls's work has sometimes been suggested, but in my view it has not yet been 19 sufficiently appreciated. The reconstruction of Rawls's work is divided into four sections, corresponding with the four main topics that this work addresses. These four topics are: legitimacy within a liberal society, justice within a liberal society, legitimacy within a decent (but non-liberal) people, and legitimacy among liberal and decent peoples. The reconstruction begins with what Rawls calls the first task of liberal political theory.

Legitimacy within a liberal society

The first task of liberal political theory is to find principles to order a constitutional regime so as to be both legitimate and stable. The exercise of political

24

The Legacy of John Rawls

power in a liberal society is legitimate only when exercised in accordance with a constitution the essentials of which are acceptable to all citizens, regarded as reasonable and rational. Citizens are reasonable when they are ready to propose and abide by fair terms of cooperation even at the expense of their own 22 interests, given that others are also willing to do so. The task of finding legitimate principles for a liberal society is made difficult by the fact of reasonable pluralism. This is the fact that citizens of modern democratic societies will hold irreconcilable but reasonable comprehensive doctrines—that is, irreconcilable but reasonable ideals of character and conceptions of what is valuable in human life. Because of reasonable pluralism, no comprehensive doctrine will be acceptable to all reasonable citizens. Therefore no comprehensive doctrine can be the basis for the legitimate exercise of political power in a liberal society. 24 Reasonable pluralism also makes the problem of stability acute. A stable liberal regime must be freely supported by a substantial majority of its politically active citizens. Yet no liberal regime can maintain stability on the basis of the principles of a comprehensive doctrine without the oppressive use of state power. 27 No comprehensive doctrine can provide the content for the principles of a legitimate and stable liberal constitution. What other source could there be for the content of these principles? There is only one source of fundamental ideas that could serve as a focal point for all reasonable citizens of a liberal society: the public political culture of that society. The public political culture comprises the political institutions of a society and the public traditions of their interpretation, as well as historic texts and documents that have become part of common knowledge. Reasonable citizens will understand that the public political culture of their society is the only source of ideas on which all can converge for the purpose of determining the basic terms of their cooperation. The general solution to the problem of reasonable pluralism is thus to order a liberal constitution according to the principles of a political conception of justice. A political conception is a moral conception of justice for the basic structure whose principles are worked out from the fundamental ideas implicit in the public political culture of a liberal society. Since a political conception of justice stands free from all comprehensive doctrines, it is possible that the principles of a political conception will be acceptable to all reasonable citizens, and so possible that these principles can serve as the basis for legitimate coercion. And it is possible for such principles to order society stably, since they can be the focus of an overlapping consensus. 32 In an overlapping consensus each reasonable citizen supports the political conception from within his or her own comprehensive view. Such a consensus is possible because reasonable citizens' comprehensive doctrines are

The unity ofRawls's work

25

likely to be (or to become) compatible with the ideas in the public political culture from which the principles of the political conception are derived.34 Legitimacy thus requires that state power in a liberal society be exercised in accordance with the values of a political conception of justice. Yet state power is not the only political power that is exercised in a liberal society. Legitimacy imposes a moral duty of civility upon democratic citizens to appeal to the shared values of a political conception when they exercise political power over each other, and especially when they debate and decide upon constitutional essentials and matters of basic justice. This is the duty of public reason. Citizens are to appeal to and decide in accordance with shared political values when they vote in elections, when they campaign for political office, and when they explain their decisions as government officials. 36 What then are the ideas in the public political culture of a liberal society that can be used to construct a political conception of justice? A fundamental idea in the public political culture adequate for working up a political conception of justice is the idea of society as a fair system of cooperation among free and equal citizens. There are many ways of specifying these ideas of fairness, freedom, and equality. So there are many liberal political conceptions of justice. Any of these conceptions of justice, if implemented, would satisfy the liberal principle of legitimacy: that the exercise of coercive political power is fully legitimate only when this power is exercised in accordance with a constitution the essentials of which all citizens may reasonably accept as free and equal.39 Each member of the family of reasonable liberal political conceptions of justice will interpret differently the fundamental ideas of fairness, freedom, and equality. However, there is a limit to the latitude with which these ideas from the public political culture may be interpreted. All reasonable liberal political conceptions of justice will meet three criteria of liberal legitimacy. They will: (a) ascribe to all citizens the familiar liberal basic rights and liberties; (b) assign these rights and liberties special priority with respect to claims of the general good and perfectionist values; and (c) assure all citizens adequate means for taking advantage of these freedoms. These criteria require more specifically that there be publicly funded elections, universal basic health care, and a not excessively unequal distribution of wealth and income.41 When citizens (including officials) exercise political power in accordance with the three criteria of liberal legitimacy, and within the bounds of public reason, they satisfy the demands of legitimacy and thus the criterion of reciprocity among citizens. A legitimate society's stability is secured when its basic structure is effectively regulated by one of the family of reasonable political conceptions of justice (or a mix thereof), and when citizens who affirm some member of this family are in an enduring majority.43

26

The Legacy of John Rawls Justice within a liberal society

Justice as fairness is a political conception ofjustice based on one specific interpretation of the ideas of fairness, freedom, and equality found in the public political culture of a liberal society. According to justice as fairness the freedom of citizens has three aspects. Citizens are free in that they regard themselves as having a capacity to form, revise, and pursue their conception of the good; in that they believe themselves to be self-authenticating sources of valid claims on institutions; and in that they are viewed as capable of taking responsibility for their ends given the resources likely to be available to them. Citizens are equal in virtue of possessing to a minimal degree the basic moral powers and the capacities that enable them to be fully cooperating members of society.46 The specification of what citizens need—primary goods—is derived from this conception of the citizen. The conception of fairness used in justice as fairness emphasizes that social and natural facts about citizens that are arbitrary from a moral point of view should not be taken as basic when determining the distribution of primary goods.48 The original position is a thought experiment meant to move from these conceptions of fairness, freedom, and equality to determinate principles of justice.49 In the original position, rational representatives of reasonable citizens choose principles of justice under conditions that are reasonable relative to the conceptions of citizen and society outlined. 50 For example, the idea that society should be a fair system of cooperation among equals is modeled by the symmetric situation of the parties behind a veil of ignorance (that is, by their not knowing the particular circumstances of those they represent, so that they are unable to favor those they represent in their choices). Since the conceptions of citizen and society are modeled in the setup of the original position, the principles of justice that are selected within the original position should be the principles that are most congruent with these conceptions. 52 Two principles would be selected in this original position: the first assuring equal basic rights and liberties, the second requiring fair equality of opportunity and that any inequalities of wealth and income be to the advantage of those worse off. These two principles are then to be further specified from the perspective of this original position into a fully determinate scheme of justice through a four-stage sequence.54 Since justice as fairness meets the three criteria of liberal legitimacy it is a member of the family of reasonable political doctrines. Justice as fairness is typical of such liberal conceptions, although it is also the most egalitarian of them. Some may believe that justice as fairness is the most reasonable conception of justice, while others may reasonably prefer other members of the family of reasonable political doctrines.57

The unity ofRauils's work

27

Legitimacy within a decent people The liberal principle of legitimacy specifies how coercive power may properly

be used within a liberal society. A more general principle of legitimacy is needed to evaluate the use of coercive power in non-liberal societies. This general principle of legitimacy is: The exercise of coercive political power over persons is legitimate only when it is exercised in accordance with a basic structure that is acceptable to those persons, regarded as decent and rational.58 Persons are decent when they are ready to abide by the terms of a decent scheme of social cooperation even at the expense of their own interests, given 59 that others are also willing to do so. A society's basic structure will specify a decent system of social cooperation insofar as it meets four conditions. First it must secure proper human rights, including rights to subsistence, security, personal property, and formal equality before the law, as well as freedoms from slavery and some measure of liberty of conscience. Second, its legal system must be such as to impose bona fide moral duties and obligations on all persons subject to it on matters of law beyond those that concern human rights. A basic structure that satisfies these first two criteria realizes a common-good idea of justice, in that it takes into account what the society sees as the fundamental interests of all persons. Third, its officials must hold and publicly demonstrate a sincere and not unreasonable belief that the law they administer is guided by a common-good idea of justice. Fourth, it must give citizens a meaningful role in political discussions by providing opportunities for dissent, and by requiring government officials to take this dissent seriously and give it a con,• , 65 scientious reply. A society's basic structure must meet these four criteria in order to qualify as a decent scheme of social cooperation. The institutions of a decent society may be inegalitarian, and they may be based on a comprehensive doctrine that is dominant in the local public political culture such as a religious view. Liberals will not see such a society's laws as just, since these laws will not be based on the ideas of fairness, freedom, and equality. Yet since decent societies are non-aggressive and their institutions are legitimate, liberal societies have no justification for interfering in their affairs. To interfere in the affairs of a decent society would be intolerant. 69 An outlaw state is not a decent society: it is either aggressive toward other peoples, or its officials violate the human rights of those within their territory, or both. 70 Outlaw states need not be tolerated. Liberal societies may resist aggressive outlaw states in self-defense; and liberal societies may intervene in the affairs of outlaw states to stop severe violations of human rights, since officials who violate human rights have no legitimate authority to exercise coercive political power in this way.71

28

The Legacy of John Rawls

Legitimacy among well-ordered peoples

We require, finally, global principles to regulate relations among the members of the various liberal and decent peoples. Since these principles will be coercive, they must also pass a basic test of legitimacy. These principles must, that is, be acceptable to all persons regarded as rational and as either decent or reasonable. However, there is even more pluralism among individuals' comprehensive doctrines globally than there is pluralism among individuals' comprehensive doctrines within a liberal society. So, as above, given this pluralism, no person's comprehensive doctrine can provide the content of the principles that will be used to coerce all. We must instead again look to a public political culture as the focal source of fundamental ideas for the content of a political conception. This time, we must look to the global public political culture to find the content for a political conception of a law of peoples. 74 The global public political culture contains few ideas about how persons living in different societies should relate directly to one another. However, the global public political culture contains a wealth of ideas concerning how peoples ought to relate to one another. The principles governing relations among the members of liberal and decent societies must therefore be principles regulating conduct not among persons, but among peoples. 76 A people is a reasonable group of persons bound together by common sympathies and sharing a reasonably just or decent basic structure. Peoples are reasonable when they are ready to propose and abide by fair terms of cooperation even at the expense of their own interests, given that other peoples are also willing to do so. Liberal peoples and decent peoples are together known as well-ordered peoples. The fundamental interests of well-ordered peoples include protecting their citizens, their territory, their political independence, and their self-respect as peoples. Well-ordered peoples do not, however, have a fundamental interest in wealth above the level necessary to sustain their legitimate institutions; and for this reason there need be no (re-)distributive principle for wealth among peoples above the level necessary to sustain the legitimacy of each.81 The fundamental idea in the global public political culture adequate for working up a political conception of a law of peoples is the idea that peoples ought to relate fairly to each other as free and equal. Peoples are free in that they conceive of themselves as politically independent and self-determining: that is, as capable of making their own decisions concerning their territories and their citizens' well-being. Peoples are equal in that the fundamental interests of each are of the same importance as those of others. The idea of fairness in the global public political culture emphasizes that the size, power, and prosperity of different peoples should not be taken as basic when determining the terms of their cooperation. 84

The unity ofRawls's work

29

The global original position is a thought experiment meant to move from these conceptions of fairness, freedom, and equality to determinate principles of a law of peoples. This original position works by allowing rational representatives of reasonable peoples to choose principles for a law of peoples under conditions that are reasonable relative to the conception of peoples and their proper relations. Since the conceptions of peoples and their proper relations are modeled in the setup of this original position, the principles of the law of peoples that are selected within it should be the principles that are most 86 congruent with these conceptions. The eight principles of the Law of Peoples would be selected in this orig87 inal position. These principles state among other things that peoples should not instigate wars of conquest, should abide by their agreements, should honor human rights, and should assist those peoples that have fallen below the material conditions necessary to sustain legitimacy. The parties in the second original position would also select standards of fairness for trade, as well as guidelines to provide for cooperative organizations such as a world bank. The further interpretation of these principles and specification of these institutions is to be undertaken from the perspective of the global original position. 90 Finally, the basic requirement of legitimacy imposes a moral duty of civility on peoples to respect the bounds of global public reason. Members of peoples are to appeal to and decide in accordance with shared global political values when they vote in elections, when they campaign for public office, and when they explain their foreign policy decisions as government officials.91 When peoples and their members exercise political power in accordance with the eight principles of the Law of Peoples, and within the bounds of global public reason, they satisfy the demands of legitimacy and thus the criterion of reciprocity among peoples. The stability of the Society of Peoples is secured when relations among peoples are guided by the Law of Peoples, and when well-ordered peoples are capable of constraining any outlaw states that threaten the peace that obtains among them. 93

This concludes the interpretation ofRawls's work. Rawls's theories of justice and legitimacy are not entirely finished, since they must still be extended outward to accommodate our relations to nature, and extended inward to explain our duties toward our fellow liberal citizens who cannot cooperate fully with us. But on the topics treated here, Rawls's work is unified and complete. Rawls's system may still face objections that one or another argument is unsound. Yet the charge of inconsistency is one criticism that Rawlsians can meet., 96

30

The Legacy of John Rawls Notes

1. 2. 3. 4. 5. 6.

7.

8. 9. 10.

11. 12. 13. 14. 15. 16. 17. 18.

19.

Stephen Holmes, "John Rawls and the Limits of Tolerance," The New Republic (11 October 1993), 39-47 (39). Brian Barry, "John Rawls and the Search for Stability," Ethics 105 (1995), 874915 (913). Susan Moller Okin, "Review of Political Liberalism" American Political Science ReviewQl (1993), 1010-11 (1010). Bruce Ackerman, "Political Liberalisms," Journal of Philosophy 91 (1994), 364-86 (374-5). Bernard Williams, "A Fair state," London Review of Books (May 13, 1993), 7-8 (7). Samantha Brennan and Robert Noggle, "Rawls's Neglected Childhood," in Victoria Davion and Clark Wolf (eds), The Idea of a Political Liberalism (Boston: Rowmanand Littlefield, 2000), 46-71 (64). Clark Wolf uses this phrase when reporting the criticisms of others, in "Fundamental Rights, Moral Pluralism, and the Moral Commitments of Liberalism," in Davion and Wolf, Idea of a Political Liberalism, 102-26 (124). Bruce Brower, "The Limits of Public Reason," Journal of Philosophy 91 (1994), 5-26(8). Barry, "John Rawls and the Search for Stability," 915. Ibid., 915. Barry did not endorse as such the conclusion drawn in his remark, although he did describe what he believed were great tensions between A Theory of Justice and Political Liberalism. Perry Anderson, "OnJohn Rawls," Dissent (Winter 1994), 139-44 (140). Thomas Pogge, "An Egalitarian Law of Peoples," Philosophy and Public Affairs 23 (1994), 195-224 (197). Stanley Hoffman, "Dreams of ajust World," New York Review of Books (2 November 1995), 52-6 (53). Allen Buchanan, "Rawls's Law of Peoples: Rules for a Vanished Westphalian World," Ethics 110 (2000), 697-721. Buchanan ("Rawls's Law of Peoples," 697) uses this phrase in describing the reactions of critics of Rawls's Law of Peoples. Kok-Chor Tan, "Liberal Toleration in Rawls's Law of Peoples," Ethics 108 (1998), 276-95 (283). Simon Caney, "Cosmopolitanism and the Law of Peoples," Journal of Political Philosophy 10 (2002), 95-123 (106). See my "The Legitimacy of Peoples," in P. de Greiff and C. Cronin (eds), Global Politics and Transnational Justice (Cambridge, MA: MIT, 2002), 53-76; and "Contractualism and Global Economic Justice," Metaphilosophy32 (2001), 79-94; reprinted inT. Pogge (ed.), Global Justice (Oxford, UK: Blackwell, 2001), 76-90. An updated version of "The Legitimacy of Peoples" entitled "Why Rawls is Not a Cosmopolitan Egalitarian" is forthcoming in a collection of essays on Rawls's Law of Peoples edited by Rex Martin and David Reidy. Three excellent essays which emphasize the importance of legitimacy for understanding Rawls's work are David Estlund, "The Survival of Egalitarian Justice in

The unity of Rawls's work

20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35.

36. 37. 38. 39. 40. 41. 42. 43.

44. 45. 46. 47. 48. 49. 50. 51. 52. 53.

31

John Rawls's Political Liberalism" Journal of Political Philosophy 4 (1996), 68-78; Allen Buchanan, "Justice, Legitimacy, and Human Rights," in Davion and Wolf, Idea of a Political Liberalism, 73—89; and Burton Dreben, "On Rawls and Political Liberalism," in Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge, UK: Cambridge University Press, 2003), 316-46. On the unity of Rawls's work, see also Daniel Weinstock's critical survey, "The Justification of Political Liberalism," Pacific Philosophical Quarterly 75 (1994), 165-85. PL, xx, xxx, xli, 3-4, 47; JF, 1-2. PL, xlvi, 136-40; JF, 40-1. PI,xliv, 48-54,81-6, 94; LP, 87-8; PAR reprinted in IP, 136; JF, 6-7. PL, xviii, xxxviii, 3-4, 13, 36-7, 58-66, 175; RH, 374; JF, 3-6, 33-4. PL, xli, 60-2, 146. PL, xxxix—xl. PL, 38; JF, 34. PL, 37, 133-8; JF, 34, 84. PL, 45-6, 192; JF, 2-5, 34-5. PL, 13-15; JF, 19-20. PL, 11-15, 174-6; RH, 376; PAR, 43; JF,26-7. PL, xliv, 10, 40, 141-2; RH, 375. PI, 9, 15, 38-40, 132-49. PL, xxi, 38, 134, 168-71; RH, 386-7; PRR, 172-3; JF,32-3. PL, xviii, xliii, xlvii-xlviii, 144-50, 158-68; JF, 33, 188-9, 192-8. PL, xxii-xxiii, 1-lvii, 10, 137, 212-16, 227-30; IP, 55-6;PRR,passim; JF, 48, 90-2, 117-18. PL, 215-16, 252-4; PRR, 133-6. PL, 11-20; JF, 5-8, 25-6;RH,376; IP, 15. PL, xlix, 167, 223-7; RH, 427-9; PRR, 141. PI, xlix, 136-40, 216-17; RH, 393, 428; JF, 84, 141. PL, xlviii, 6; IP, 14; PRR, 141. PI, lvii-lix;IP, 49-51. PL, xliv-xlvi, li, 16-18, 48-50; IP, 7, 14, 43n53, 114; PRR, 132-8, 140-1, 146-8, 156-7, 168, 172-3. PI,xlix-l, 14:0-72; RH, 391-2; JF, 9, 32, 84, 185-9, 199. A society stably ordered by an overlapping consensus of reasonable comprehensive doctrines achieves a reasonable and sufficient social unity. PL, xxxvii, xliii, 4-5, 9, 167, 225-7; JF, xvii, 5-6, 39. TJ, 131-2, 475; PI, 19, 29-35; JF, 21-4. TJ, 17, 441-9; PL, 19; JF,20-1. TJ, xiii; PL, 75-7, 178-90; JF, 57-61, 88, 188-9. TJ, 13-14, 62-5, 82, 273-4; PI, 79; JF, 15-16, 55-7, 74-7, 124. TJ, 15-19; PL, 22-8, 34-5, 45; JF, 14, 80-9. PL, xxii, 24-5, 77-81, 103-104; RH, 381; IP, 30-2; JF, 17-18,81-3. TJ, 118-23; PI, 24-7, 79-80; JF, 15-18,87. PL, xxii, 25-6, 72-3, 89-90, 103; JF, 16-18, 41-2. TJ, 52-6, 266; PL, 5-6; JP, 42-50, 94-130.

32 54. 55. 56. 57. 58.

59.

60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76.

77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92.

The Legacy of John Rawls TJ, 171-6; RH, 397-409; LP, 42n53; JF, 48. PL, xlviii—xlix. PL, 6-7; LP, 14. PL, xlviii-xlix; JF, 7-8, 39-41. This reading of The Law of Peoples, emphasizing legitimacy, is needed to make sense of why Rawls is neither a cosmopolitan nor an international egalitarian. (See my "The Legitimacy of Peoples.") LP, 64—8, 71—2, 86—8. Decent persons are responsible: they are capable of understanding, recognizing, and acting in accordance with their duties and obligations as specified by their society's conception of justice. (LP, 66, 71) PL, 16, 109; LP, 65-8, 83, 93n6; JF, 6. IP, 65, 68, 78-81. LP, 65-7. Ibid. LP, 66-7. LP, 3n.2, 63, 72, 92. IP, 3, 64-7, 83. IP, 62-78. IP, 78, 83. IP, 59-62, 67-8, 83-4, 122. IP, 5, 48, 90. IP, 9, 80-1, 93n6, 94-5, 105-6. IP, 18-19, 40. IP, 54-5. IP, 15, 18, discussing the parallel third conditions of realistic Utopia. E.g., IP, 80n23, on Article 1 of the Universal Declaration of Human Rights. "The law of peoples proceeds from the international political world as we see it" (IP, 83), with "familiar and largely traditional principles . . . from the history and usages of international law and practice." (IP, 57; cf. IP, 17, 36—7) IP, 23-5, 59-68. IP, 25, 35. IP, 4, 62. IP, 28-30, 34-5, 47-8. See my "The Legitimacy of Peoples," 65—7. IP, 33-8, 111-12, 117-18. IP, 33-5, 69-70, 113-15, 121-2. IP, 32-3. IP, 30-5, 68-70, 115. IP, 58. IP, 39-43. IP, 37-8, 105-13. IP, 42-3. IP, 42. IP, 54-7. IP, 28, 35, 41, 56-7, 121-2.

The unity ofRawls's work

33

93. LP, 17-19, 27-30, 44-54, 64, 83-4, 122-6. 94. TJ, 448-9; PL, 20-1, 245-6; JF, 176. 95. PL, xlvi, 207-11, 241-7; LP, 86; PRR, 144-6. 96. I am grateful to David Estlund, Stephen Macedo, Henry Richardson, Robert Stern, and Paul Weithman for their criticisms and suggestions.

2

Self-realization and the priority of fair equality of opportunity Robert S. Taylor

Introduction: fair equality of opportunity and its lexical priority In his final statement of the two principles of justice, Rawls renders the second principle as follows: Social and economic inequalities are to be arranged so that they are both: (a) (b)

to the greatest benefit of the least advantaged, consistent with the just savings principle, and attached to offices and positions open to all under conditions of fair equality of opportunity. 1

I will hereafter refer to condition (b) as simply "fair equality of opportunity" or "FEO." FEO has two distinct components. First, FEO requires formal equality of opportunity or "careers open to talents," that is, it prohibits both arbitrary discrimination (on the grounds of race, gender, etc.) and monopolistic privilege (including barriers to entry in labor markets). Second, FEO demands substantive equality of opportunity: all citizens must have a fair chance to achieve advantaged social positions, regardless of their social circumstances (i.e. class status or family background). To achieve such fairness, the state must take action to prevent "excessive accumulations of property and wealth" and to maintain "equal opportunities of education for all." 3 More specifically, the state must impose inheritance and gift taxes, limit the right of bequest, and subsidize education (whether directly through public schools or indirectly through vouchers, tuition tax credits, loans, etc.).4 Moreover, condition (b) of the second principle is lexically prior to condition (a), that is, "fair [equality of] opportunity is prior to the difference principle" and consequently cannot be sacrificed for its sake. This priority rule may seem unnecessary: under what possible circumstances would sacrificing FEO be to the "greatest benefit of the least advantaged," given especially that one of its goals is to "even out class barriers?" Rawls suggests that "it may be possible to improve everyone's situation [including the least advantaged] by assigning certain powers and benefits to positions despite the fact

Self-realisation and the priority of fair equality of opportunity

35

that certain groups are excluded from them. Although access is restricted, perhaps these offices can still attract superior talent and encourage better performance." As an example, Rawls offers (though does not endorse) the claims of Burke, Hegel, and others that "some sort of hierarchical social structure and a governing class with pervasive hereditary features are essential for the public good." 8 Though these claims are no doubt of historical interest, they may not seem particularly compelling, leaving us still wondering whether the lexical priority of FEO is really necessary. However, we do not need to rely on an example as extreme as this one in order to recognize the possibility of conflict between FEO and the Difference Principle. For example, securing fair equality of opportunity through educational subsidies could be exceedingly expensive, as a disadvantaged family and class background may make it difficult to bring a student up to a level of competence, much less excellence, at any given task. Might it not be to the "greatest benefit of the least advantaged" to focus educational subsidies instead on those (often socially advantaged) students for whom such investment would offer the highest rate of return and then tax them for the benefit of the poor? Rather than fighting a costly and possibly futile battle against family and class privilege, one might instead put such privilege to work for the least advantaged among us through redistributive taxation. This thought seems to animate Rawls's own concept of "natural aristocracy," a kind of institutionalized noblesse oblige, and it is precisely what the priority of FEO rules out as illegitimate. Thus, contrary perhaps to first impression, FEO's lexical priority has real bite: the least advantaged cannot trade off their fair opportunities to achieve office and position for the sake of greater monetary benefits. Not surprisingly, this priority rule has been roundly criticized by many people, including Larry Alexander and Richard Arneson. Alexander seems perplexed by the strength of the condition, believing that it makes a fetish of our status as producers; moreover, he worries that FEO may become a "black hole" for economic resources due to its lexical priority. Arneson writes that "enabling all individuals to have real opportunities for job satisfaction, educational achievement, and responsibility fulfillment is not plausibly regarded as a justice goal that trumps all other justice values and should be pursued no 12 matter what the social cost." Perhaps due to these criticisms, Rawls himself began to express doubts about the lexical priority of FEO late in his life. Consider the following footnote (apparently written sometime in the early 1990s ) from justice as Fairness: Some think that the lexical priority of fair equality of opportunity over the difference principle is too strong, and that either a weaker priority or a weaker form of the opportunity principle would be better, and indeed

36

The Legacy of John Rawls

more in accord with fundamental ideas ofjustice as fairness itself. At present I do not know what is best here and simply register my uncertainty. How to specify and weight the opportunity principle is a matter of great difficulty and some such alternative may well be better. 14 This latter-day ambivalence prompts the following question: what does Rawls's original defense of the lexical priority of FEO look like? We thus arrive at one of the most puzzling lacunae in all of his work. Apart from a single brief discussion (to which I will turn shortly), he fails to offer a?y< justification for this priority rule. He defines the priority of FEO, illustrates it, etc., but never gives us an argument for it. This gap in his theory is made all the more surprising by the almost obsessive care he takes in defending (with multiple arguments) the other major priority rule internal to justice as fairness, the priority of liberty. 15 Over the following pages, I attempt to defend Rawls against both his critics and his own doubts by speculatively reconstructing his argument for the lexical priority of FEO, building not only on the few clues he provides but also on other resources found in Theory, including especially the Aristotelian Principle (section 65) and the Humboldtian concept of social union (section 79). Moreover, I show that this reconstruction can be defended against the criticism that it commits Rawls to a substantive conception of the good, thereby jeopardizing the priority of right in his theory. As we shall see, this reconstituted argument for the lexical priority of FEO strengthens the case for justice as fairness as well as having controversial implications for public policy.

Reconstructing Rawls's defense of the priority of FEO Before starting my reconstruction, I should say a few words about method. Any attempt to reconstruct someone else's argument should hew as closely as possible to their own words, methods, concepts, and (insofar as we can discern them) intentions. As I reconstruct Rawls's defense of the priority of FEO, his own words on the subject (which are few and vague, as we shall see) will provide a rough guide. I will fill in the details using methods and concepts drawn from his own writings. Where interpolation or extrapolation is needed to advance the argument, it will be carefully discussed and defended. The final product of this effort should at the very least not be inconsistent with the spirit of Rawls's work; with luck, it will reflect his intentions and fit into the rest of his theory with a minimum of strain. To begin, I will briefly examine Rawls's most powerful defense of the priority of liberty, which will then serve as a model for a reconstructed defense of the priority of FEO. In section 26 of Theory, Rawls says that "parties [in the Original Position] regard themselves as having a highest-order interest in

Self-realisation and the priority of fair equality of opportunity

37

how all their other interests, including even their fundamental ones, are 16 shaped and regulated by social institutions." This highest-order interest in the shaping of other interests (including the religious interest and the interest in integrity of the person) sits atop a "hierarchy of interests" and is lexically prior to all other interests, that is, it cannot be sacrificed to promote them. As the basic liberties are necessary conditions for the achievement of this highestorder interest, they cannot be sacrificed for the sake of other primary goods, 18 such as office and position, income and wealth. Rawls's argumentative strategy is to justify a hierarchy of goods (basic liberties over other primary goods, as required by the priority of liberty) with a hierarchy of interests (a highestorder interest in shaping other interests over all other interests, including fundamental ones). Of course, the success of such a strategy hinges on showing (inter alia) why this interest in the shaping of all other interests is of such paramount importance, but its connection to our capacity for a conception of the good, which is one element of our autonomy, makes such a showing possible.19 So, one orthodox Rawlsian way to justify the lexical priority of FEO over the Difference Principle (and therefore the lexical priority of fair opportunities to achieve office and position over income and wealth) is to justify the lexical priority of the interest that FEO supports over the consumption interest supported by the Difference Principle. What kind of interest might this be? Rawls identifies it during his one very brief discussion of the priority of FEO and its defense: I should note that the reasons for requiring open positions are not solely, or even primarily, those of efficiency . . . [The priority of FEO] expresses the conviction that if some places were not open on a basis fair to all, those kept out would be right in feeling unjustly treated even though they benefited from the greater efforts of those who were allowed to hold them [as was the case with "natural aristocracy"]. They would be justified in their complaint not only because they were excluded from certain external rewards of office butbecause they were debarred from experiencing the realization of self which comes from a skillfuland devoted exerciseof socialduties. They 20 would be deprived of one of the main forms of human good. Rather than concentrating on the interest in the "external rewards of office" (including salary and prestige), which after all bears a strong resemblance to the consumption interest supported by the Difference Principle, I want to focus on the interest in "the realization of self " that the holding of offices and positions makes possible. If it can be shown that this interest is so important as to be lexically prior to the consumption interest, then the priority of FEO will have been justified on orthodox Rawlsian grounds. Rawls's description of

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The Legacy of John Rawls

self-realization as "one of the main forms of human good" suggests that such an approach may be a promising one. In order to demonstrate the importance of our interest in self-realization, however, we must first determine what self-realization consists of. Rawls says that realization of self comes from "askillfuland devoted exerciseof social duties." This skeletal explanation can readily be fleshed out by an examination of the Aristotelian Principle (section 65), which motivates the achievement of increasing virtuosity, and of the concept of social union (section 79), which provides the context for the development of such virtuosity. In the course of doing so we will see why and in what way Rawls believes that selfrealization trumps consumption.

The Aristotelian Principle Rawls defines the Aristotelian Principle in the following way: "other things equal, human beings enjoy the exercise of their realized capacities (their innate or trained abilities), and this enjoyment increases the more the capacity is realized, or the greater the complexity." The achievement of pleasure in increasing virtuosity at any given activity is counterbalanced, however, by "the increasing strains of learning as the activity becomes more strenuous and difficult." This tradeoff between the pleasures and burdens of virtuosity at any given task determines how we will allocate resources (such as time and effort) across tasks: Every activity belongs to some chain. The reason for this is that human ingenuity can and normally will discover for each activity a continuing chain that elicits a growing inventory of skills and discriminations. We stop moving up a chain, however, when going higher will use up resources required for raising or for maintaining the level of a preferred chain. 24 Notice that in allocating resources the tradeoff is between virtuosity at different activities, not between virtuosity and consumption. In fact, Rawls only speaks of our tendency to virtuosity being overridden when it comes into conflict with justice itself or when various psychological proclivities (e.g. risk aversion and time preference) inhibit it. 25 (I will return to both of these points later.) The importance of this tendency and its ramifications for institutional design are spelled out in the following passage, which is rich with implications for a defense of the priority of FEO: The tendency postulated [i.e. the Aristotelian Principle] should be relatively strong and not easily counterbalanced. I believe that this is indeed

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the case, and that in the design of social institutions a large place has to be made for it, for otherwise human beings will find their culture and form of life dull and empty. Their vitality and zest will fail as their life becomes a ,• .• 26 tiresome routine. The social duties attached to offices and positions provide valuable and (as we shall see) unique opportunities for the exercise and improvement of our abilities. FEO and its priority can be seen as creating and protecting institutional space for the use of our skills and guaranteeing resources (including educational ones, in particular) to make their utilization effective. Consumption cannot substitute for self-realization through the skillful discharge of social duties for the very reasons alluded to in this passage: only increasing virtuosity can prevent life from becoming "dull and empty," whereas increasing consumption—though perhaps initially satisfying, especially where basic needs have yet to be met —has a tendency to become a "tiresome routine" itself, with titillation giving way to boredom and jadedness in an endless series of addictive cycles. I should immediately note that Rawls never explicitly makes such a claim about the lack of substitutability between self-realization and consumption. I am extrapolating here, but such an extrapolation is necessary to advance the argument: unless self-realization is of such a nature that consumption can never substitute for it, we will be unable to defend the priority relation between the respective social primary goods (fair opportunities for office and position versus income and wealth) that support them. Moreover, this extrapolation is consistent with many of Rawls's other statements about consumption. For example, during his defense of the Difference Principle, Rawls says that a "person choosing [according to a maximin rule] has a conception of the good such that he cares very little, if anything, for what he might gain above the minimum stipend that he can, in fact, be sure of by following the maximin rule." 28 This relative indifference to consumption beyond a "satisfactory minimum"is consonant with (though it certainly does not imply) the above claim about substitutability. I think these considerations militate in favor of provisionally accepting such a claim in order to see whether the reconstructed defense, considered as a whole, is compelling and broadly consistent with Rawls's overall theory. Before moving on to consider why the Aristotelian Principle should be linked to offices and positions in the basic structure of a just society, we should consider another objection to the argument so far. The idea of making the Aristotelian Principle the foundation for a defense of the priority of FEO might be criticized on the grounds that, as a mere factualpremise, the principle has no moral force and cannot do the normative work that I wish it to do. That is, the Aristotelian Principle is, as Rawls repeatedly emphasizes, a

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The Legacy of John Rawls

"psychological law" or a "natural fact," a description of an evolved human tendency with obvious adaptive features. To argue from this innate disposition toward virtuosity to a political principle that encourages and protects it is no more valid, so the criticism goes, than to argue from our innate disposition toward violence to a political principle that endorses blood feuds and factional warfare. This criticism may lose its force, however, if its own premise is challenged: perhaps the Aristotelian Principle, despite Rawls's assurances, is something more than a mere "psychological law." Few readers of Theory would question the moral role that autonomy plays in Rawls's theory; in sections 40 and 78, human autonomy is represented as the very ground of the moral law. Yet the form of its depiction, both there and elsewhere, is always factual in character: thus Rawls speaks of our "nature as free and equal rational beings" and of our observable capacities both for a conception of the good and for a sense of justice, which are the constitutive elements of human autonomy. Thus, Rawls often clothes his normative premises in factual language, and so his use of such language when describing the Aristotelian Principle does not necessarily rob it of moral force. Given the importance of this premise in defending one of the key elements of Rawls's justice as fairness, I believe we arejustified in ascribing to it more than merely factual significance.

Social union Throughout his discussion of the Aristotelian Principle, Rawls constantly highlights the social context within which we develop our various skills. The increasing virtuosity of our fellow citizens, for instance, is a good for us, as their improved skills may help us to advance our own ends, may inspire us to similar forms of excellence, or may simply be a source of pleasure when they are pub35 licly exercised.35 Such virtuosity can be developed and displayed ina number of social settings, including even games and other forms of play. 36 This last observation raises the following important question: why would the Aristotelian Principle bear any special relationship to offices and positions in the basic structure, as required by the proposed defense of the priority of FEO? In order to understand this connection, we must first examine the Humboldtian idea of social union, discussed by Rawls in section 79. As Rawls notes there, individual men and women have neither the time nor the requisite inborn potentials to achieve all the possible forms of human excellence. They are forced to specialize, choosing to develop some skills and allowing others to lie fallow. Fortunately, however, they can participate in and enjoy the complementary excellences of their fellow citizens through social cooperation in the pursuit of shared ends. Rawls's example of a symphony orchestra

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41

provides a nice illustration of these points: individual members of an orchestra may lack the time and/or ability to learn to play (or play well, at least) all or even most instruments in an orchestra, but they can specialize by training themselves on one or a few instruments and then cooperate with others in the orchestra to produce music together, thereby participating in the complemen38 tary excellences of their fellow musicians in the pursuit of a common goal. Now, as Rawls notes, such social unions can take many forms, many of which are not properly thought of as part of the basic structure of society, which is the subject of justice. So, for example, friendships, chess clubs, art associations, churches, and so on may be important examples of social unions, but membership in them would generally not be regulated by FEO. What then distinguishes those social unions that are part of the basic structure—governments, private and public corporations, universities, NGOs, and so forth—from social unions more generally? What makes them distinct (inter alia) is that the offices and positions associated with them require a major and usually dominant commitment of time and energy and act as the primary sources of livelihood for those who hold them. The social duties associated with these offices and positions and the rich repertoire of skills necessary to discharge them will consequently become a central focus of the lives of the officeholders, especially their pursuit of virtuosity. Such centrality is the source of the special connection between the Aristotelian Principle and the offices and positions of the basic structure, and it explains why FEO is of such overwhelming importance: fair access to these positions is by far the most important way (though certainly not the only way) to help citizens achieve the excellences of which they are capable.

A threshold condition for the application of the priority of FEO Earlier I mentioned that the pursuit of virtuosity might legitimately be overridden if it conflicted with justice itself. For example, the priority of liberty would prevent the state from banning paeans to consumerism if its purpose in doing so was to keep citizens from being distracted from self-improving activities. The first principle of justice is, in other words, prior to the second. But FEO might be overridden, and its priority postponed, for reasons internal to the second principle as well. For instance, Rawls notes that "the Aristotelian Principle characterizes human beings as importantly moved not only by the pressure of bodily needs, but also by the desire to do things enjoyed simply for their own sakes, at least when the urgent and pressing wants are satisfied."Rawls is recognizing here that the pursuit of virtuosity, at least for limited physical beings such as ourselves, has preconditions: we cannot effectively hone our skills when we are racked by cold, thirst, hunger, or other such afflictions.

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The Legacy of John Rawls

Thus, the priority of FEO would have to be relaxed if such relaxation were necessary to allow the accumulation of sufficient income and wealth to make the pursuit of virtuosity itself feasible. This last example raises a larger question: under what conditions does the lexical priority of FEO come into effect? Rawls explicitly addresses this issue in Political Liberalism, drawing a parallel between the first and second principles ofjustice: The notion of fair equality of opportunity, like that of a basic liberty, has a central range of application which consists of various [non-basic] liberties [such as free choice of occupation and freedom of movement] together with certain conditions under which these liberties can be effectively exercised ... Just as in the case of basic liberties, I assume that this range of application can be preserved in ways consistent with the other requirements ofjustice, and in 41 particular with the basic liberties. In the case of the basic liberties, these conditions include an unspecified level of social, legal, and economic development (especially a modicum of material 42 comfort). Something similar is evidently intended for FEO: adequate socio-political and material resources must be available before the priority of FEO goes into effect, where "adequate" means whatever level is necessary for the liberties associated with FEO to be "effectively exercised." Given what Rawls has said on this subject, we can speculatively reconstruct the nested set of thresholds for the application of the lexical priorities of liberty and FEO. Begin with his general conception ofjustice, in which "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." This general conception presumably applies to all societies below a certain level of development. Once the requisite level of social, legal, and economic development has been reached, however, the first priority rule (the priority of liberty) comes into play; given the priority of the first principle to the second, an increasing social resource base must first be used to secure the priority of liberty. As the resource base continues to grow, though, a point will eventually be reached where the second priority rule (the priority of FEO) will come into effect; the special conception ofjustice will then be fully implemented.

The priority of FEO versus the priority of right? An important question now arises: does the commitment to self-realization that I argue is implicit in the lexical priority of FEO simultaneously commit

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Rawls to a substantive conception of the good for its defense, thereby jeopardizing the priority of right in his theory? Arneson asks much the same question and answers it as follows: Within Rawls' theory, which eschews any social evaluation of people's conceptions of the good, there does not seem to be a basis for affirming that the goods of job satisfaction and meaningful work trump the goods that money and other resources distributed by the [Difference Principle] can obtain. From the different perspectives afforded by different and conflicting conceptions of the good, individuals will differ on this question . . . For some, work satisfaction and entrusted responsibility fulfillment may loom very large; for other individuals, quite other goods are crucial. 45 Interestingly, Rawls's own criticisms of moderate perfectionism (in section 50 of Theory)for being inconsistent with the priority of right may militate against the proposed defense of the priority of FEO. He says there that the "criteria of excellence are imprecise as political principles, and their application to public questions is bound to be unsettled and idiosyncratic, however reasonably they may be invoked and accepted within narrower traditions and communities of thought." Granted, the perfectionism involved in Rawls's privileging of the pursuit of excellence through office and position is extremely weak and pluralistic compared to, say, Nietzsche's perfectionism. Nevertheless, it is initially unclear why the overriding importance ascribed to self-realization through work is any less "unsettled and idiosyncratic" than that ascribed by Nietzsche to creating and elevating Ubermenschen. Might there be some way for Rawls to respond to these criticisms and to show that the priority of FEO and the priority of right are in fact consistent? One possible response is that just as reasonableness (i.e. our capacity for a sense of justice) and rationality (i.e. our capacity for a conception of the good) are facets of our autonomy, of our independence from natural and social contingency, so is self-realization. Since human autonomy is the very ground of the moral law in Rawls's doctrine of right, as we noted earlier, this response may rescue him from the charge of inconsistency. But how could self-realization possibly be construed as a facet of our autonomy? To see how, first consider why rationality is such a facet. Rationality might at first seem heteronomous because unduly influenced by our needs and desires, which are themselves often the products of natural and social contingency. Rawlsian rationality is detached and critical, however, and requires that moral agents distance themselves somewhat from their immediate wants: The aim of deliberation is to find that plan which best organizes our activities and influences the formation of our subsequent wants so that our aims

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The Legacy of John Rawls

and interests can be fruitfully combined into one scheme of conduct. Desires that tend to interfere with other ends, or which undermine the capacity for other activities, are weeded out; whereas those that are enjoyable in themselves and support other aims as well are encouraged. 48 Far from blindly serving what Plato called the "manifold beast" of desire, rationality schedules, prioritizes, tempers, and prunes desires as well as organizing them into a coherent plan of life. By doing so, it exemplifies our autonomy and demonstrates that we are more than simply the resultant vectors of genetic, familial, and social forces. Rationality's task of designing and implementing a plan of life requires the utilization of external resources, including especially the generic, liquid form of such resources—money. But there is a middle term, so to speak, between a plan of life and the external resources needed for its realization: internal resources, including skills, drive, and self-discipline. As we noted above, selfrealization is solely concerned with cultivating such resources, just as rationality is focused on organizing and culling desires. Moreover, like rationality, self-realization may be impeded by refractory animal impulses. As Jon Elster has noted, akrasia, myopia, and extreme risk-aversion can act as barriers to the development of internal resources: creating such resources in ourselves is initially painful (hence akrasia and myopia as barriers) and not guaranteed to succeed (hence risk-aversion as a barrier). So self-realization is in large part a struggle against these natural inertial tendencies, as Rawls himself intimates, and our success at it is as emblematic of our autonomy as the struggle of rationality against untoward desires. I do not intend to suggest here, of course, that people develop their skills only as a way to advance their life plans. As Rawls emphasizes, "the Aristotelian Principle characterizes human beings as importantly moved ... by the desire to do things for their own sakes." That is, the perfection of one's skills can be not only a means to, but also constitutive of, one's plan of life. Such duality should not present a problem: virtuosity, like health, is both good in itself and good for what it makes possible. Given the Kantian provenance of Rawls's theory, it is illuminating to note that these three facets of autonomy—reasonableness, rationality, and self-realization—are paralleled by the three varieties of maxim in Kant's practical philosophy: maxims of morality, maxims of prudence, and maxims of skill, respectively. As the connections between reasonableness and morality and between rationality and prudence are fairly clear, I will focus on the third of these connections, that between self-realization and skill. For Kant, the maxims of skill are technical imperatives: they determine not "whether the end [sought] is rational and good . . . but only what one must do in order to attain it ... Since in early youth it is not known what ends might occur to us

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in the course of life, parents seek above all to have their children learn a great many things and to provide for skill in the use of means to all sorts of discretionary ends." Once individuals have reached adulthood, of course, they continue to develop these and other skills in the pursuit of their chosen ends, and, as we have seen, this quest for excellence is the prime element of self-realization. But Kant also emphasizes that the development of one's skills is a self-regarding duty (if an imperfect one): "as a rational being he necessarily wills that all the capacities in him be developed, since they serve him and are given to him for all sorts of possible purposes." Thus, for Kant as for Rawls, self-realization is a moral imperative. Kant goes on to note that these three varieties of maxim are "clearly dis56 tinguished by dissimilarity in the necessitation of the will." Whereas the maxims of morality bind rational agents unconditionally, maxims of prudence have force only in relation to a universal subjective end (i.e. happiness), and maxims of skill constrain only insofar as agents actually will the ends to which these maxims specify the means. Hence, a hierarchy exists among the maxims: morality limits the pursuit of happiness, which in turn dictates the development of certain skills. A parallel hierarchical relation holds among Rawls's three priorities: the priority of right (grounded in our reasonableness) is paramount; the priority of liberty (grounded in our rationality, as noted earlier) comes second but is the first priority "internal" to justice as fairness; finally, the priority of FEO (grounded in our capacity for and interest in self-realization) comes third. Thus, while all three of the facets of autonomy are emblematic of our independence from natural and social contingency, the degree of independence differs, and this dissimilarity motivates the hierarchical relation among both them and the priorities that they ground.

Conclusion I have argued in this chapter that the lexical priority of FEO in Rawls's justice as fairness can be successfully defended against its critics, despite his own doubts about it. Using the few textual clues Rawls provides, I speculatively reconstructed his defense of this priority, showing that it is grounded on our interest in self-realization through work. This reconstructed defense made liberal use of concepts already present in Theory, including the Aristotelian Principle (section 65), which motivated the achievement of increasing virtuosity, and the Humboldtian concept of social union (section 79), which provided the context for the development of such virtuosity. I also showed that this commitment to self-realization, far from violating the priority of right in Rawls's theory, stems directly from his underlying commitment to autonomy, which is the very foundation of the moral law in his doctrine of right.

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The Legacy of John Rawls

Alternative defenses of FEO's lexical priority are no doubt possible. For example, one implication of this priority is that eliminating social inequalities (i.e. those arising from family and class privilege) is infinitely more important than counteracting natural inequalities (i.e. those arising from differences in ability and ambition). Thus, one might be able to provide a basis for the lexical priority of FEO by arguing that social inequalities are infinitely worse than natural inequalities. Why might this be so? Perhaps social but not natural inequalities prevent us from being full and equal participants in the basic structure of a well-ordered society or cause special injury to the self-respect of those denied fair opportunities, owing to the fact that social inequalities seem more a product of conscious human action and even human design than natural inequalities. Thus, the social dependency implicit in Rawls's idea of "natural aristocracy" might be deemed infinitely more degrading than the natural dependency that is arguably implicit in the Difference Principle itself, which makes the income of the least advantaged dependent in large part on (properly motivated) able and ambitious people. Without denying the promise of such alternatives, I do want to point out two advantages of the self-realization defense. First, it is clearly based on Rawls's text, as I noted near the beginning of the second section of this chapter. When Rawls argues that those denied fair opportunities would be "debarred from experiencing the realization of self which comes from a skillful and devoted exercise of social duties," he seems to be indicating his preferred way of defending FEO's lexical priority. We are not bound, of course, to follow Rawls's lead, but given his own words and the way that the resulting self-realization defense fits neatly within his theory, a certain deference may not be inappropriate. Second and more importantly, the self-realization defense is shown in the third section of this chapter to flow from the same underlying commitment to autonomy that ultimately grounds not only the priority of right but also the priority of liberty. This defense thus serves as a constituent element of a unified, autonomy-based defense of the three priorities injustice as fairness. Other approaches to defending the priority of FEO would likely lack this coherentist justification. Whichever approach to defending the priority of FEO that we ultimately decide to take, we must still ask: why is its defense so important? Given Rawls's admission that the argument for the Difference Principle is "unlikely ever to have the force of the argument for the two prior principles," most of the power and distinctiveness of justice as fairness would appear to derive from the two 59 internal priorities of liberty and FEO. Therefore, a persuasive defense of FEO is a vital support for his theory, the success of which would otherwise depend mostly, if not exclusively, on the defense(s) of the priority of liberty. But the implications of a compelling defense of FEO's lexical priority extend much further than this. Though the United States has utterly failed to provide

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either fair equality of opportunity or a satisfactory social minimum for its own citizens, its relative emphasis on the former (especially in the form of subsidies for higher education) may draw some support from the lexical priority of FEO: the decision to commit resources to state colleges and universities, subsidized student loans, and so on, rather than to broader financial support for the poor, may be partially justified by the modest perfectionism of the self-rea60 lization defense..Thus,far from being an obscure and poorly motivated com panion to the priority of liberty, the priority of FEO is arguably its peer in terms of both its importance to justice as fairness and the controversialness of 61 its policy implications.

Notes

1.

TJ, 266.

2. 3. 4. 5. 6. 7. 8.

Ibid., 62; CP, 141; JF, 67n. TJ, 63. Ibid., 245; CP, 141; JF, 51, 161. TJ, 11, 266. Ibid., 63. Ibid., 73. Ibid., 264. Also see Bernard Williams, "The Idea of Equality," in Peter Laslett and W.G. Runciman (eds), Philosophy, Politics, and Society (Oxford, UK: Basil Blackwell, 1962), esp. 125-9, and Michael Lessnoff, "John Rawls' Theory of Justice," Political Studies 19.1 (1971), 63-80, esp. 75ff. TJ, 57, 64-5. Larry Alexander, "Fair Equality of Opportunity: John Rawls" (Best) Forgotten Principle," Philosophy Research Archives 11 (1985), 197-207; Richard Arneson, "Against Rawlsian Equality of Opportunity," Philosophical Studies 93.1 (January 1999), 77-112. Also see Thomas Pogge, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989), 161-96. Alexander, "Fair Equality of Opportunity," 198, 202-3, 205-6. On FEO as a "black hole," also see Arneson, "Against Rawlsian Equality of Opportunity," 81-2, and Pogge, Realizing Rawls, 169. Arneson, "Against Rawlsian Equality of Opportunity," 99. Email correspondence with Erin Kelly, editor ofJF (April 14, 2003). JF, 163n. There is some textual evidence (admittedly indirect) in TJ suggesting that Rawls is responding to Alexander's criticisms. For example, a passage in the original edition (87) that was sharply criticized by Alexander ("Fair Equality of Opportunity,'' 199-200) —who felt that it implied that FEO would never conflict with the Difference Principle—is missing in the revised edition ( T J , 76). See sections 26, 33, and 82 in TJ, as well as "The Basic Liberties and Their Priority" in PL. TJ, 131.

9. 10.

11.

12. 13. 14.

15. 16.

48 17. 18. 19.

20.

21.

22. 23. 24. 25. 26. 27. 28. 29. 30.

The Legacy of John Rawls Ibid. ,476. Ibid., 131. As I have recently argued in "Rawls's Defense of the Priority of Liberty: A Kantian Reconstruction," Philosophy and Public Affairs31.3 (Summer 2003 ) , 247-72. TJ, 73; emphasis added. This account of FEO's priority may explain Rawls's position on the distribution of educational resources: "resources for education are not to be allotted solely or necessarily mainly according to their return as estimated in productive trained abilities, but also according to their worth in enriching the personal and social life of citizens, including here the least favored." (TJ,92) Alexander speculates that the lexical priority of FEO might be defended using the Aristotelian Principle but does not attempt such a defense himself. (Alexander, "Fair Equality of Opportunity," 205—6) TJ, 374. Ibid., 376. Ibid., 378. Ibid., 376-8. Ibid., 377. Ibid., 379. Ibid., 134. Ibid., 135. Rawls also says in PL that: were the parties [in the Original Position] moved to protect only the material and physical desires of those they represent, say their desires for money and wealth, for food and drink, we might think that the original position modeled citizens" heteronomy rather than their rational autonomy. But at the basis of the parties" reliance on primary goods is their recognition that these goods are essential all-purpose means to realize the higher-order interests connected with citizens' moral powers and their determinate conceptions of the good. (PL, 76)

31.

As I will show later, self-realization can be understood as one of these "higherorder interests." The basic structure is the subject of justice and includes the political constitution and the principal economic and social arrangements. Thus the legal protection of freedom of thought and liberty of conscience, competitive markets, private property in the means of production, and the monogamous family are examples of major social institutions. Taken together as one scheme, the major institutions define men's rights and duties and influence their life prospects, what they can expect to be and how well they can hope to do. (TJ, 6-7)

32. 33.

TJ, 375, 376. Ibid., 222, 452, 455; emphasis added.

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34. Ibid., 442. Thus Rawls asserts that "these claims [about human moral capacities] depend solely on certain natural attributes the presence of which can be ascertained by natural reason pursuing common sense methods of inquiry."(TJ, 442n) 35. TJ, 373, 375-6. 36 Ibid., TJ, 374-5, 377. 37. Ibid., 458-9. 38. Ibid., 459n. 39. Ibid., 378. 40. Ibid., 379; emphasis added. 41. Ibid., 228, 363-4; emphasis added. 42. TJ, 54-5, 132, 474-6. 43. Ibid.,54-5. 44. Rawls argues that "the case for certain political liberties and the rights of fair equality of opportunity is less compelling [than the case for 'liberty of conscience and the rights defining integrity of the person'] . . . It may be necessary to forgo part of these freedoms when this is required to transform a less fortunate society into one in which all the basic liberties can be fully enjoyed." (TJ, 217) 45. Arneson, "Against Rawlsian Equality of Opportunity," 98—9. 46. TJ, 290. 47. Ibid., 286. 48. Ibid., 360-1. 49. Plato, Republic 589a. 50. Jon Elster, "Self-Realization in Work and Politics: The Marxist Conception of the Good Life," Social Philosophy and Policy 3.2 (Spring 1986), 97-126, here 107-8. 51. TJ, 376-7. 52. Ibid., 379. 53. Immanuel Kant, Groundwork of the Metaphysics of Morals, trans. Mary Gregor (Cambridge, UK: Cambridge University Press, 1997), 26-7. Also see H.J. Paton, The Categorical Imperative: A Study in Kant's Moral Philosophy (Philadelphia: University of Pennsylvania Press, 1947), 89-96. 54. Kant, Groundwork, 26; original emphasis. 55. Ibid.,32-3. 56. Ibid., 27. 57. TJ, 63-5, 73-8. 58. Ibid., 73. 59. Ibid., xiv; cf. ibid., 220. 60. The United States and South Korea are tied for the second-highest level of post-secondary enrollment in the world (72% of the relevant age group), behind only Finland (84%). (Figures from The Economist Pocket World in Figures (2004 Edition), 74.) 61. I thank Debra Satz, Tamar Schapiro, Allen Wood, Rob Reich, Peter Euben, Peter Stone, Steven Kelts, Neal D'Amato, Simon May, and Lael Weis for their helpful comments and suggestions.

3

Taking the distinction between persons seriously Anthony Simon Laden

"Utilitarianism," John Rawls tells us a mere two dozen pages into A Theory of Justice, "does not take seriously the distinction between persons." If we read this sentence as expressing the heart of Rawls's criticism of utilitarianism as a basis for a conception of justice for a democratic society, we can draw two conclusions. First, an adequate conception of justice for a democratic society needs to take the distinction between persons seriously, and second, Rawls's own alternative: justice as fairness, does. The first of these conclusions is, it seems to me, uncontroversial. Nevertheless, it is worth noting that some degree of that lack of controversy comes from the fact that we are thinking about conceptions of justice here, and, in particular, of what might be called political justice: the justice of basic social and legal institutions, what Rawls calls the "basic structure." For while any number of desirable goals, from efficiency to environmental protection, might not require taking the distinction between persons seriously, the very concept of justice surely does. Whether we define the concept of justice with Polemarchus in Plato's Republic as "giving to each what is owed to him" or with Rawls as applying to institutions when "no arbitrary distinctions are made between persons in the assigning of basic rights and duties and when the rules determine a proper balance between competing claims to the advantages of social life," the very idea of justice makes reference to the distinction between persons. My interest here, however, lies with the second claim: that Rawls's justice as fairness does take the distinction between persons seriously. On one level, this claim is no more controversial than the first one, and to the extent that it is controversial, the controversy is rather well-trodden. Nevertheless, many of Rawls's readers, both sympathetic and critical, have not fully appreciated either what taking the distinction between persons seriously requires, or how deeply Rawls's attempt to do so structures his philosophical work. Rawls, I argue, offers us not only an alternative set of principles of political justice for a democratic society, but an alternative conception of the role of political philosophy in such a society. Taking the distinction between persons seriously thus has implications not only for the principles of justice we endorse, but also

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for the relationship between political philosophy and social policy, and thus how we might, to use a Wittgensteinian turn of phrase, go on in political philosophy in a Rawlsian way. I start by distinguishing four levels at which it makes a difference if we take the distinction between persons seriously. With respect to each level, I make four claims. First, Rawls takes the distinction between persons seriously and utilitarianism does not. Second, principles of justice for a democratic society ought to take the distinction between persons seriously. Third, whether or not one considers it important to take the distinction seriously at a given level is influenced by one's attitude at other levels, so that the most plausible and coherent versions of both justice as fairness and utilitarianism will differ on all four levels. Finally, certain criticisms of justice as fairness for not taking the distinction between persons seriously at one level fail to appreciate that it also takes this distinction seriously at higher levels. Having climbed into the philosophical stratosphere, I conclude with some more mundane suggestions about the roles political philosophy should play in political life if we accept my claims about the advantages of Rawls's approach on the way up. We can label the levels at which taking the distinction between persons seriously matters as follows: (1) the content of principles, (2) the form of the argument in favor of those principles, (3) the conception of (political) morality more generally, and (4) the conception of moral and political philosophy. While Rawls explicitly discusses the first two levels in A Theory of Justice, the third and especially the fourth level remain relatively undiscussed, in part because Rawls himself mentions them only occasionally, and arguably only fully appreciated their significance toward the end of his career, with the 5 series of papers he published after Political Liberalism. Rehearsing the familiar territory of the first two levels will, however, help to prepare the way for discussion of the third and fourth levels.

Level 1: the content of the principles Rawls begins his discussion of what he calls "classical utilitarianism" in Theory by pointing out that it does not treat the distinction between persons seriously at the first level, that of content, and works from there to the second level, that of the form of argument. Conceding that "it is impossible to deny the initial plausibility and attractiveness of" classical utilitarianism, Rawls goes on immediately to point out its failure to pay attention to the distinction between persons at the level of content: "The striking feature of the utilitarian view of justice is that it does not matter, except indirectly, how this sum of satisfactions is distributed among individuals." At the level of content, that is, utilitarianism does not take the distinction between persons seriously because it

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does not pay attention to issues of distribution, except indirectly. Rawls's own two principles ofjustice, of course, pay a great deal of attention to distribution. In fact, it is not much of a stretch to say that distribution is all that they pay attention to. A basic structure satisfies the two principles ofjustice to the extent that it guarantees or is highly likely to produce a particular distributional pattern of basic liberties, opportunities, and goods. Such attention to distribution is a means of taking the distinction between persons seriously because it requires us to be sensitive to who has what. Note here two points about the difference between the content of utilitarianism and that of Rawls's two principles. First, the content of an adequate conception ofjustice for a democratic society needs to treat the distinction between persons seriously. Whatever else is true about a democracy, it seems clear that one of its fundamental features is that it must take individual members of the demos seriously as distinct individuals. Presumably, what made utilitarianism a progressive philosophy of choice in the nineteenth and early twentieth centuries was the extent to which it does take each person seriously as an equally good repository of utility. Second, and more interestingly, according to some of Rawls's critics, justice as fairness fails to take the distinction between persons sufficiently seriously at this level. Robert Nozick argues that justice as fairness pays too much attention to particular end-state patterns, losing sight in the process of the actual transactions between people that led to those end-states. In other words, Nozick claims that in order to take the distinction between persons really seriously, a theory must pay more attention to what different persons do, and not treat them merely as points on a distributional curve. I return to this criticism below.

Level 2: the form of the argument After pointing out that utilitarianism pays what he takes to be the wrong sort of attention to questions of distribution, Rawls goes on to trace this failure to a problem with the "most natural way" of arriving at utilitarian principles: "to adopt for society as a whole the principle of rational choice for one man." According to Rawls's reconstruction here, the most natural argument for an aggregative principle is one that relies on an aggregative device, "conflating all persons into one through the imaginative acts of the impartial sympathetic spectato r." Classical utilitarianism thus does not take the distinction between persons seriously at this second level because the argument on behalf of its principles relies on adopting a principle of choice for a single person and applying it

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to a whole society. In contrast, Rawls explains, justice as fairness, "being a contract view, assumes that the principles of social choice, and so the principles of justice, are themselves the object of an original agreement."The argument for the two principles made within justice as fairness, an argument whose central piece invokes the device of the original position, thus takes the distinction between persons seriously because it involves showing that each person would agree to the principles of justice from his or her own distinctive perspective. Note that this criticism of utilitarianism is, indeed, different from the one made at the first level. It is conceivable that the conflation of all persons into one via the sympathetic imagination of an impartial spectator would lead us to endorse the two principles of justice or some other principle that places direct emphasis on distribution, just as it is also conceivable that principles that paid no direct attention to distribution could be generated on the basis of a different kind of argument (as Rawls thinks is the case for what he calls "average utilitarianism"). Nevertheless, there is an important connection between the attention one pays to the distinction between persons at each level. What makes the lack of direct attention to distribution shown by utilitarianism appear to be a problem is in large part a concern to make an argument for principles of justice that takes the distinction between persons seriously. If, on the other hand, we regard an aggregative device as an appropriate means to argue for principles of justice, then we are unlikely to be overly concerned that the principles it selects have an aggregative content. Thus, what looks like a failure on the part of utilitarianism at the first level from Rawls's perspective may seem to the utilitarian who does not take the distinction between persons seriously at the second level as not a failure but merely the result of prior theoretical commitments. The importance, within a democratic society, of taking the distinction between persons seriously at this level becomes clear when we recall Rawls's insistence on what he calls publicity. Rawls insists that in developing principles of justice for a democratic society, we must develop a. public conception of justice. It is not enough to develop principles that can only achieve their desired result if applied behind the backs of democratic citizens, since the means to do so would of necessity be undemocratic. Conceptions of justice for a democratic society cannot adopt the structure of what Bernard Williams calls "Government House utilitarianism."But that means that both the principles and their justification must be publicly known (or knowable) by all citizens and that their application can proceed in light of such knowledge. An argument in favor of principles of justice for a democratic society, then, will only be successful if it can be addressed to each citizen individually, that is, only if it takes a form that treats the distinction between persons seriously.

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Rawls claims that a contract doctrine, suitably framed, does this to a greater extent than the impartial spectator argument for utilitarianism. The fact that the two principles of justice are principles that we could all agree to from an appropriate perspective provides grounds for a reply to Nozick's criticism. Nozick treats justice as fairness as if it imagined a particular distributional pattern descending from the heavens and imposing itself on a democratic society. Once we understand that Rawls aims to take the difference between persons seriously at this second level, however, that picture of justice as fairness has to be rejected. Rather, we are to imagine members of a democratic society coming to agree that the justice of their society depends on their conducting their distinct affairs with one another within the confines of certain structures designed to bring about certain distributive results. From the perspective of justice as fairness as a contract doctrine, its concern with distribution ceases to look like a failure to take seriously the distinction between persons. Even if the focus on distribution alone treats individuals as mere points on a distributional curve, the argument in favor of that particular pattern insists that each citizen be taken seriously as a distinct person whose agreement must be secured for the principles to be jus t . But while taking the distinction seriously at the second level provides Rawls a response to Nozick, his means of doing so leads to a new sort of criticism. Utilitiarianism fails to mount an argument that takes the distinction between persons seriously because it "conflates all persons into one through the imaginative acts of the impartial sympathetic spectator."But surely, this second line of criticism goes, justice as fairness also fails to take the distinction between persons sufficiently seriously insofar as it appears to conflate all persons into one through the imaginative act of a choice behind the veil of ignorance. As any number of critics have pointed out, and as Rawls himself seems to admit, the invocation of the veil of ignorance, which makes the parties in the original position indistinguishable from one another, has the effect of conflating them into one person, of transforming an agreement that takes the distinction between persons seriously into a choice that does not. This line of criticism is also mistaken, in part because it fails to take heed of the fact that Rawls aims to take the distinction between persons seriously at the third level: that of the conception of political morality itself.

Level 3: the conception of (political) morality The difference between utilitarianism and justice as fairness at this level is the difference between what T.M. Scanlon calls "philosophical utilitarianism" and "contractualism" in his article "Gontractualism and Utilitarianism." 15 It is brought out beautifully and forcefully by Christine Korsgaard:

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To later generations, much of the moral philosophy of the twentieth century will look like a struggle to escape from Utilitarianism. We seem to succeed in disproving one Utilitarian doctrine, only to find ourselves caught in the grip of another. I believe that this is because a basic feature of the consequentialist outlook still pervades and distorts our thinking: the view that the business of morality is to bring something about... The subject matter of morality is not what we should bring about, but how we should relate to one another. If only Rawls has succeeded in escaping Utilitarianism, it is because only Rawls has fully grasped this point. His primal scene, the original position, is one in which a group of people must make a decision together. Their task is to find the reasons they can share. On this reading of justice as fairness, its subject matter is how we relate to one another, and not a set of principles or institutions that we (whoever that turns out to be) are to bring about. As Scanlon puts the point, for contractualism, the idea of general agreement is "in a more fundamental sense, what morality is about." 17 There are several points to be made about this contrast. The first is to explain what it has to do with taking the distinction between persons seriously. Why does thinking that the business of morality is to bring something about fail to take the distinction between persons seriously, while thinking that the business of morality is how we relate to one another succeed in doing so? A moral theory that tells me what I ought to bring about is likely to address me as if I am the sole agent in the universe. Let me explain what I mean by that. The moral theory tells me what I ought to do or bring about. No doubt it tells me to do things to and for other people, but in telling me to do those things, it implicitly treats those other people as more or less complicated objects. These objects may be the recipients of my action, they may be the helpmeets of that action, or they may get in my way, but they will not really be seen as my partners in action in any sort of strong way. On this reading of consequentialism, I can be sensitive to the differences among those whom my action affects, but there is a sense in which I will fail to treat them as persons in doing so. Of course, consequentialist theories do not have to be as solipsistic as all that. They can, if they are any good as moral theories, also take themselves to apply to all other people as agents, as persons, and so in some sense such a theory will not treat me as the only agent so much as a fully representative one. But notice that from this perspective, a theory that takes any given agent as fully representative of all the rest is not really taking the distinction between persons seriously. This helps explain the relative clumsiness that utilitarian theories have displayed in trying to deal with collective actions, whether in the form of rule or coordination utilitarianism. In each case, the utilitarian imagines lots of people doing the same thing, all acting side-by-side, but not

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really together, and tries to relate a single agent's action to that action multiplied. Utilitarianism thus does not take the distinction between persons seriously at this third level because it does not treat the recipients of actions as persons and does not treat the agents who perform them as distinct. In contrast, if we take the subject of morality to be how we relate to one another, then we are led to take rather seriously the particular parties to those relationships as both persons and distinct. To see this point, it helps to further specify the relationships that are the subject of morality on this view. They are intersubjective, which means that they are constituted by normative relations between and among a certain kind of being of whom persons are the prime (and perhaps the only) example, rather than by causal relations between and among beings capable of setting certain causal chains in motion, a class which includes persons but not in any special place. Thus, the relationship I form with my fellow citizens as free and equal co-authors of the laws that govern us is intersubjective because it is essentially normative and while it is conceivable that beings other than human beings could form that same relationship with me, it would require that they resemble human beings in important ways. In contrast, the relationship that a doctor bears to me insofar as it is at her discretion and under her control how much pain medication I get need not be intersubjective, since it is constituted by her capacity to set in motion certain causal chains that will affect me, and as such, the same relationship could be set up between a robot and a dog. The very possibility of intersubjective relationships requires that there be distinct persons, and so any theory that focuses its attention on such relationships will need to take the distinction between persons seriously. Moreover, if as in contractualist moral theories, what determines the moral quality of an intersubjective relationship is whether the parties to it can agree to its terms, then we are going to have to be particularly sensitive to the different and distinct positions from which the various parties to that relationship evaluate it. Taking the distinction between persons seriously at this level is also an important criterion for an adequate conception of justice for a democratic society. Here, we should note two further fundamental facts, one about justice and the other about democratic societies. Questions of justice arise only insofar as there exist distinct individuals with competing claims. This requires not only that the individuals be distinct, but that they somehow be related, such that their claims can truly be said to compete. Interestingly, Rawls claims that when seen from this perspective, utilitarianism is not so much guilty of conflating all persons into one, as of being too individualistic: This assimilation of justice to a higher order executive decision, certainly a striking conception, is central to classical utilitarianism; and it also brings out its profound individualism, in one sense of that ambiguous word.

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It regards persons as so many separate directions in which benefits and burdens may be assigned; and the value of the satisfaction or dissatisfaction of desire is not thought to depend in any way on the moral relations in which individuals stand, or of the kinds of claims which they are willing, in the pursuit of their interests, to press on each othe r. Principles of justice, then, cannot take the distinction between persons seriously by ignoring their relationships. Turning to democratic societies, note that what, ultimately, makes them democratic is the nature of the intersubjective relationship that citizens form with one another, a relationship that Rawls characterizes as shaped by freedom and equality. If we were determining principles of justice for an authoritarian regime, we might ask ourselves what sorts of institutional and legal reforms the dictator should bring about, and then judge the dictator's justice by reference to a description of those reforms. If, however, the fundamental feature of a democratic society is the nature of the intersubjective relationship among its citizens, and justice is the first virtue of the institutions that constitute that relationship, then the question of justice for a democratic society must ultimately be the question of the nature of that relationship. And so a political theory ofjustice for a democratic society had better take the intersubjective relationship among citizens as its primary focus. We can also note that the choice of whether or not to adopt a form of argument for principles ofjustice that takes the distinction between persons seriously will be influenced by one's position at this third level. If the business of morality is to bring something about, then it makes sense to find a means to figure out what that something is. Nothing in that project need push us to take the distinction between persons seriously, or regard it as a failure if we do not. On the other hand, if the business of morality is the nature of our intersubjective relationships, then there is not only a reason to take the distinction between persons seriously at this third level, but a reason to make taking the distinction between persons seriously at the first two levels a criterion of success, because those relationships are in part constituted by the principles we adopt to regulate our conduct and the arguments we can offer one another to justify them. Once we see that justice as fairness focuses on our intersubjective relationships as citizens, we can see why it is a mistake to see the veil of ignorance as a sign that Rawls fails to take the distinction between persons seriously. I'll mention three considerations. First, the criticism that justice as fairness conflates all individuals into one via the veil of ignorance fails to take sufficient heed of the fact that the original position is a device of representation, and not an actual event. Thus, the parties who are arguably conflated via the veil of ignorance are not the persons the distinction between which an adequate theory ofjustice must take seriously. The original position is a device that

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helps us to clarify our judgements about which arguments in favor of various principles ofjustice are ones we can share with our fellow citizens. The point of the argument for justice as fairness, as we have just seen, is to work out the basis of a political agreement among actual citizens. This requires that the form of the argument for justice as fairness extends beyond the veil of ignorance to include considerations about whether actual citizens can agree to the two principles, and so the failure of the veil to take the distinction between persons seriously need not call into question the ability of the argument as a whole to take that distinction seriously. Second, even within the perspective of the original position, the parties are to consider whether or not a society well-ordered by its preferred principles will be stable. One of the features of the society ofjustice as fairness that makes it stable is that individual citizens, pursuing a variety of conceptions of the good, and occupying a variety of social positions, can endorse the arguments in favor of the two principles ofjustice, and see that a society that fulfills these two principles will provide to a sufficiently high degree the social bases of their self-respect. These factors contribute to individual citizens developing a sense ofjustice, and thus to the stability of the society. The stability of a wellordered society, we might surmise, is precisely the result of the agreement that shows that the argument for the two principles ofjustice takes the distinction between persons seriously at the second level. From the perspective of the contrast drawn at the third level, where we learned that for justice as fairness, such agreement is what justice is fundamentally about, we can thus see that the question of stability rather than the question of preferability from behind the veil of ignorance must form the core of Rawls's argument. Third, as I said at the beginning of my remarks, I think we can understand the development of Rawls's thinking about justice as fairness over the course of his career as stemming from an increasing recognition of what is necessary in order fully to take the distinction between persons seriously. Thus, we should not be surprised to see in his later writings, from Political Liberalism onward, a de-emphasis on the choice aspects of the original position argument, and a greater emphasis on the questions of actual agreement among actual citizens, of the sort that constitutes an overlapping consensus or which is needed to satisfy the liberal principle of legitimacy. Even though the fact that justice as fairness takes the distinction between persons seriously at the third level shows that it does so to a sufficient degree at the second level, we can understand a third line of criticism as suggesting that justice as fairness fails to take the distinction between persons sufficiently seriously at this third level. This worry comes out most clearly in criticisms of Rawls for being insufficiently democratic such as that of Jiirgen Habermas, or from those skeptical of the very idea of moral theory, such as Bernard Williams.What unifies these seemingly different lines of criticism is the

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claim that although Rawls focuses on the agreement of citizens as the central domain of political philosophy, these citizens are merely the imaginary constructs of a political theorist. When it comes to real distinctions between real citizens in the actual world, the criticism goes, the very fact that Rawls has developed a theory of justice shows that he has failed to take these distinctions seriously. As Habermas puts the point: The higher the veil of ignorance is lifted and the more Rawls's citizens take on flesh and blood, the more deeply they find themselves subject to principles and norms that have been anticipated in theory and have already become institutionalized beyond their control. In this way, the theory deprives the citizens of too many of the insights that they would have to assimilate anew in each generation ... It is not possible for citizens to view this process as open and incomplete, as the shifting historical circumstances nonetheless demand. They cannot reignite the radical democratic embers of the original position in the civic life of their society, for from their perspective all of the essential discourses of legitimation have already taken place within the theory; and they find the results of the theory sedimented in the constitution. 24 The problem Habermas points to here is that in developing a theory of justice, Rawls seems to have already done all the work that democratic citizens are supposed to do themselves in coming to agreement. In doing so, he fails to take the distinction between persons seriously, because he fails to leave open and incomplete the fundamental shape of the agreement that distinct citizens will achieve. In the terminology of this chapter, Habermas here claims that Rawls fails to take the distinction between persons sufficiently seriously at this level because, as a theorist of justice, he stands outside the ongoing relationships of citizens to one another. The problem to which Habermas points, then, is not so much with the content of the principles of justice, or the arguments for them, or even their selfunderstanding as constituting the relations of free and equal citizens to one another, but rather with the way, as he understands it, Rawls conceives the role of political philosophy itself. Understanding Rawls's reply to Habermas on this point, then, requires moving up to the final level at which it is important to take the distinction between persons seriously: the conception of political philosophy.

Level 4: the conception of political philosophy In order to clarify the contrast at the fourth level, we can start by thinking about how what I have elsewhere called a "theoretical approach" to political

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philosophy fails to take the distinction between persons seriously. Those who take a theoretical approach to political philosophy hold that it is the reasoning of the theorist that ultimately determines the shape of just political principles, and so their justification depends entirely on the soundness of the theorist's reasoning. The modus operandi of a theoretical approach is to develop a theory and then apply it. Utilitarianism stands as the paradigm case of such an approach. Utilitarians claim to have a correct account of value or the good, and then go on to draw inferences from that account about what sorts of behavior or institutional structure would make human lives go better or worse. This self-understanding leaves two tasks for the utilitarian political or moral philosopher. First, she can work at refining or reforming the theory, providing a more precise or better account of utility or its sources in human life, or offering a novel way to understand how to aggregate it into a single maximand. Second, she can apply the theory to real-life moral or political questions. Such application need not be straightforward or routine. Think, for instance, of Mill's argument that utilitarianism supports individual rights in Chapter 5 of Utilitarianism, or Rawls's argument that utilitarians can support the practices of promising and punishment in his "Two Concepts of Rules." Nevertheless, what is important for my purposes here is that neither endeavor requires engaging with the actual people who are going to be subject to the theory or its applications. The utilitarian theorist acts as if her job is to work out a correct theory and figure out how to apply it, rather than to participate in the process of coming to reasonable agreement with her fellow citizens.She takes up what Rawls describes as an administrative viewpoint, rather than the perspective of a citizen. In doing so, she fails to treat the distinction between persons seriously because she fails to take seriously the various and sundry grounds that different people might have for objecting, not merely to the correctness of her theory, but to her presumed intention to impose it on them. Habermas's remarks quoted above help us to see why such inattention to the distinction between persons at this fourth level poses a problem for a conception of justice for a democratic society. Within a democratic society, the authority to determine principles of justice lies always in the hands of citizens, not in the hands of princes or bureaucrats or philosophers. Thus, doing political philosophy within and for a democratic society requires abandoning the perspective of the theorist favored by utilitarians and many other political philosophers and adopting the perspective of the citizen. That is, however, what I think Rawls does, and to my mind this aspect of his philosophical project represents his most important break with utilitarianism. Rawls describes political liberalism as applying the principle of toleration to philosophy itself, aiming as it does to reconcile different comprehensive doctrines without deciding which among them might be true. Similarly, we might

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describe Rawls's approach to philosophy as applying the principle of contractualism to the activity of philosophy itself. Contractualism takes agreement to be, in Scanlon's words, "what, at a fundamental level, morality is about." What I am suggesting here is that we understand Rawls as taking reasonable agreement to be what, at a fundamental level, political philosophy is about. Moral and political philosophy, then, are forms of moral and political activity, in both an ennobling and a deflationary sense. In an ennobling sense because philosophers are not just sitting on the sidelines spouting ultimately irrelevant theory, but interacting with one another and other nonphilosophers in ways that help to constitute the very relationships that are the subject matter of morality and politics. In a deflationary sense because once philosophers leave the sidelines, we have no special status or authority. As Rawls puts the point, "Injustice as fairness, there are no philosophical experts. Heaven forbid!" Note that this conception of philosophy's role is not a late addition to Rawls's work, prompted by the criticisms of Habermas and others. It is a very long-standing characteristic of his philosophy, which can be summarized in the claim that justification is always justification to a particular other. Once again, the choice to take the distinction between persons seriously at this level affects how we view the importance of doing so at the third level. If our job as political philosophers is to offer a correct theory, and we take that to be a worthwhile (and not merely an academic) exercise, it is natural to conclude that the value of such an enterprise is specifying what it is that morality tells us to bring about, and thus that the business of morality is to bring something about. Similarly, if we take the business of morality to be to bring something about, it is natural to give the job of figuring out what that something is to moral and political philosophy conceived as an enterprise of theory construction. If, however, we are fundamentally interested in the intersubjective relationships we form with one another, we cannot hope to form the appropriate ones by ignoring or denying our place within those relationships, as the theorist implicitly does. We are thus led to find a way to do political philosophy that does not involve taking a theoretical approach. Such an attempt is, however, fraught with its own dangers. Chief among these is that it may seem to lead to the conclusion that there is really nothing for political philosophy to do. That conclusion strikes me as too hasty, and I think we can see in Rawls a model of what there is to do and how to do it.

Climbing back down: going on in a Rawlsian way Let me conclude, then, by suggesting three distinct but related roles for political philosophy (and philosophers) to play on this conception. The first is the

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construction of what Rawls calls arguments in public reason. Within this role I include not only formulating arguments for particular policies and principles, but also evaluating the arguments made within the broader public sphere and the narrower political sphere in terms of their reliance on public reasons. While this role for political philosophy suggests and will include such focused interventions as the evaluation of various arguments for and against the recognition of same-sex marriages, it can also include much larger questions, such as the choice between what Rawls calls "welfare-state capitalism" and "property-owning democracy."After Rawls says that injustice as fairness there are no philosophical experts, he goes on to point out that "citizens must, after all, have some ideas of right and justice in their thought and some basis for their reasoning. And students of philosophy take part in formulating these ideas but always as citizens among others." Note that such interventions into actual political debate should not be understood as the application of a theory. When political philosophers endeavor to make or evaluate arguments in public reason, we are addressing those arguments to our fellow citizens as equal participants in a shared endeavor. The success of our efforts is to be measured by the response from our fellow citizens, and not by a standard of correctness internal to the discipline of philosophy. Second, in some cases, the problems with a democratic society will run deeper than disputes about particular policies or the fine-tuning of principles. The deliberation of citizens can generate legitimate political authority only if that deliberation involves the real engagement of free and equal citizens. Thus, there are times when what appear to be perfectly good public reason arguments should be rejected because part of what makes them attractive is a background of systematic injustice that undermines the very possibility of reasonable deliberation. Faced with such injustices, citizens need to make rather more complex public reason arguments, arguments that lay out the preconditions for political deliberation to be legitimacy conferring. Such arguments, turning as they do on conditions of possibility and more fully developed accounts of legitimacy and justice, are ones to which political philosophy is well-positioned to contribute. We can see an example of such an argument in Rawls's discussion of campaign finance in Political Liberalism, and the bases for further such arguments in his remark in "The Idea of Public Reason Revisited" that public reason relies on a criterion of reciprocity that holds that when those terms are proposed as the most reasonable terms of fair cooperation, those proposing them must also think it at least reasonable for others to accept them, as free and equal citizens, and not as dominated or manipulated, or under the pressure of an inferior political or social position. Third, citizens of particular democratic societies will, at various times, face problems for which the conceptual tools of philosophy will be needed.

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The problem to which Political Liberalism addresses itself is what Rawls, following Kant, describes as a crisis of reasonable faith. Very roughly, citizens in a pluralistic society might come to doubt whether a constitutional democratic regime is possible given that citizens cannot be brought to agree on fundamental matters without the use of oppressive force. Faced with such a crisis of faith, we may find ourselves unable to muster the commitments and efforts at compromise and self-sacrifice necessary to make such a pluralistic democracy work. So this lack of faith is a political, not merely a philosophical, problem. Nevertheless, a large part of its solution lies within the conceptual domain of philosophy, insofar as our faith can be restored by a philosophical demonstration of the conceptual coherence of a pluralistic democracy. Rawls describes this role for philosophy as "philosophy as defense." Note that engaging in philosophy as defense may require the construction of rather elaborate and complex theoretical structures, such as those of justice as fairness and political liberalism. Nevertheless, the point of such theoretical construction is not that of the philosopher as theorist, concerned to work out the correct principles of justice, as it were once and for all, but the philosopher as citizen, concerned to address his own and his fellow citizens' political predicaments. All three of these roles for political philosophy are responsive to the particular political conditions in which we live. If we understand political philosophy as I have argued Rawls came to understand it, then what there is for political philosophers to do in this vein will depend to a very large degree on what we take to be the problems we face as citizens: where we find agreement in our societies fragile or non-existent, where it seems that the breakdown of such agreement matters, and what sorts of crises of faith we face. If you are used to thinking of political philosophy in a more Platonic guise, as are most political philosophers and theorists, you may find this interpretation of our work rather disappointing, as if Rawls has condemned us to a series of small (and thus minor) tasks. Such a reaction would be a mistake, however. To see why, we only need to note that it was to accomplish just such narrow tasks that Rawls wrote arguably the two most important books on the subject of political philosophy published in the last 50 years, books that no one would describe as small. The size of a philosophical task is not wholly determined by its scope. Among John Rawls's many philosophical strengths, one of the greatest and least appreciated was his capacity to see just how difficult apparently small tasks can be. As I have argued, central among these is taking the distinction between persons seriously. Notes 1.

TJ, 24/original edn, 27.

2.

Ibid., xvii—xviii/original edn, vii—viii.

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3. Plato, TheRepublic(trans. G.M. Grube; rev. C.D.C. Reeve; Indianapolis: Hackett, 1992), 6 (Book I, 332al). 4. TJ, 5/original edn, 5. 5. See, in particular, the "Introduction to the Paperback Edition" of PL; RH; and PRRreprinted inCP. 6. TJ, 23/original edn, 26. 7. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 149-64, 183—231, esp. 228. Amartya Sen makes a somewhat different criticism of Rawls at this level for his use of primary goods as an index of equality. Sen claims that this index fails to take seriously not merely the differences between people but the differences in those differences. (Amartya Sen, Inequality Reexamined (Cambridge, MA: Harvard University Press, 1995).) 8. TJ, 23-4/original edn, 26-7. 9. Ibid., 24/original edn, 27. 10. Ibid., 25/original edn, 28. 11. Bernard Williams, Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985), 108-10. 12. A similar invocation of Rawls's concern to treat the distinction between persons seriously at this second level can, I think, also provide a starting point for replying to Sen's criticism. Such a reply would invoke the role of considerations of stability in the argument for the two principles, and point out that the argument for those principles needs to be acceptable to all citizens given their various differences from one another, and so the index in which inequalities are measured within the two principles must be similarly acceptable. Of course, showing that primary goods fits this criterion within the confines of justice as fairness better than Sen's capabilities would require further arguments that are beyond the scope of this chapter. 13. TJ, 25/original edn, 27. 14. See, for instance, Jean Hampton, "Contracts and Choices: Does Rawls Have a Social Contract Theory?" Journal of Philosophy 11 (1980), 315-38. 15. T.M. Scanlon, "Contractualism and Utilitarianism," in A. Sen and B. Williams (eds), Utilitarianism and Beyond (Cambridge, UK: Cambridge University Press, 1982), 103-28. 16. Christine Korsgaard, "The Reasons We Can Share," in her Creating the Kingdom of Ends (Cambridge, UK: Cambridge University Press, 1996), 275-310 (275); original emphasis. 17. Scanlon, "Contractualism and Utilitarianism," 128. 18. This description is intentionally vague so as not to require commitment to a particular view of what is essential to being a person, or what constitutes setting a causal chain in motion. 19. I am grateful to Tamar Shapiro for pressing me to be clearer about the special nature of the relationships in question and their connection to taking the distinction between persons seriously. 20. John Rawls, "Justice as Reciprocity," reprinted in CP, 190-224 (218).

Taking the distinction between persons seriously 21.

22.

23.

24. 25.

26. 27.

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Even this line of reply concedes too much to the original objection, however. There are good reasons to see even the parties in the original position as distinct, if not different, and thus engaged in coming to an agreement rather than making a choice. (See, for instance, my "Games, Fairness and Rawls's^4 Theory of Justice," Philosophy and Public Affairs20 (1991), 189-222.) One might ask whether this shift in emphasis represents a change in doctrine or merely a change in presentation. I tend to think it is the latter, inspired by what Rawls took to be misreadings of the structure of the argument in Theory. Many readers of Theory took it to be attempting to derive principles ofjustice from principles of rationality. Such an interpretation leads one to read the original position as the central feature of the argument for the two principles and to read that part of the argument as an argument within rational-choice theory. But those are mistakes. I say more about this in my "The House that Jack Built: Thirty Years of Reading Rawls," Ethics 113 (2003), 367-90. Jiirgen Habermas, "Reconciliation through the Public Use of Reason: Remarks on John Rawls's Political Liberalism," Journal of Philosophy 92 (1995) ,109-31; Williams, Ethics. Habermas, "Reconciliation," 128; original emphasis. I use the term "theoretical approach" and argue that Rawls does not adopt such an approach in my Reasonably Radical: Deliberative Liberalism and the Politics of Identity (Ithaca, NY: Cornell University Press, 2001), 15-17. John Stuart Mill, Utilitarianism, ed. Roger Crisp (Oxford, UK: Oxford University Press, 1998). John Rawls, "Two Concepts of Rules," reprinted in CP, 20-46. For a vivid example of this lack of connection between the question of what makes the theory correct and what would lead people to endorse it, see Mill's Utilitarianism, where he completely separates the question of the proof of utilitarianism (its correctness) from those regarding its "sanctions" (what would lead people to adopt it).

28. Rawls, "Justice as Reciprocity," 216-18. 29.

30. 31.

Astute readers will notice the addition of "reasonable" to the contractualist formula. Although I take it that Scanlon, too, means to speak of reasonable agreement and not any agreement, and so this does not represent a substantive difference with Scanlon's formula, I here make the reasonableness condition explicit to mark a difference between the view I am attributing to Rawls and a form of conventionalism or relativism that held that any agreement is as good as any other, and all are decisive to questions of political philosophy. RH, 427. See TJ, original edn, 580—1, but see also Rawls, "Outline of a Decision Procedure for Ethics," reprinted in CP. Burton Dreben has perhaps most clearly recognized the difference between Rawls and utilitarians (and to Dreben's mind, most other philosophers) at this level. (Burton Dreben, "On Rawls and Political Liberalism," in S. Freeman (ed.), The Cambridge Companion to Rawls (Cambridge, UK: Cambridge University Press, 2003), 316—46) But Dreben reads this as a radical new direction undertaken in Political Liberalism and the work that followed it,

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33. 34.

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The Legacy of John Rawls rather than, as I would argue, the working out of certain fundamental commitments that have been there all along. One reason Dreben misses this continuity is that he fails to appreciate the motivations for Rawls's approach, motivations that have as much if not more to do with his conception of democracy than with his conception of philosophy. If we see that Rawls's conception of political philosophy is the consequence of his conception of democracy, then it is easier to see its predecessors in the social contract tradition. Most notable here is Rousseau's remark that he writes from the perspective of a citizen, and Kant's remark that "reason has no dictatorial authority; its verdict is always simply the agreement of free citizens." (Immanuel Kant, Critique of Pure Reason, trans. N.K. Smith (New York: St. Martin's Press [1781/87] 1929), 593 (A738/B766).) Though these terms do not appear in Theory, Rawls claims in later work that justice as fairness is consistent with property-owning democracy, but not with welfare-state capitalism. His most detailed discussion of the difference between these two systems is in JF, 135—52. PL, 427. PRR reprinted in CP, 578. I think much of Catharine MacKinnon's more theoretical work can be read as engaged in just such arguments, laying out the means by which the structural inequalities of a patriarchal society serve to silence the voices of women in political deliberation. (See my "Radical Liberals, Reasonable Feminists: Reason, Power and Objectivity in the Work of MacKinnon and Rawls," Journal of Political Philosophy 11.2 (2003), 133—52, and, more generally, my Reasonably Radical, esp. 131-58.) I presented an earlier version of this paper at a symposium on "Rawls, Utilitarianism and Social Policy," at the Central Division meetings of the American Philosophical Association in April 2004. I benefitted greatly from the discussion on that occasion, and in particular from questions from Alyssa Bernstein, Rahul Kumar, and Henry Richardson, which have led me to clarify several points in this chapter. I would also like to thank Samuel Fleischacker, David Owen, and Tamar Schapiro for their comments on earlier drafts, and Thorn Brooks for the invitation to publish this here.

4

Rawls and feminism: What should feminists make of liberal neutrality? Elizabeth Brake

Introduction Among feminist philosophers, there has been substantial debate over the implications of Rawls's liberalism for women's equality. Some feminists, such as Susan Moller Okin, have accepted the fundamental structure of Rawls's liberalism, but have criticized Rawls himself for ignoring gender and remaining ambiguous regarding the status of the family, the structure of which affects women's life-chances: "Rawls's theory neglect [s] ... gender." As Okin writes in her reply to Political Liberalism, Rawls did not clarify in that work whether he endorsed substantive or merely formal equality for women. In her concluding words, she asks, "what does Rawls mean to say about justice between the sexes?" However, Okin herself argues that Rawls's theory ofjustice, if applied to the social structures that perpetuate women's inequality, has great potential for changing those structures; she accepts Rawls's theory (once it is made sensitive to gender) as a suitable theory of feminist justice. Other feminists, however, criticize liberalism as an ideology whose promise of equal rights obscures the mechanisms of oppression. Notably, Catharine MacKinnon has argued that liberal freedoms serve male power and obscure the extent of women's subordination. For example, freedom of speech has been used to protect pornography, which MacKinnon argues is harmful to women; this freedom, as MacKinnon sees it, protects the interests of men precisely where those interests are at odds with women's, while it appearsto have no gender bias (since freedom of speech is every citizen's right, regardless of gender). In MacKinnon's view, the supposedly objective, neutral state is in fact "male." By this she means not only that law-makers and justices apply supposedly gender-neutral laws in sexist ways, but also that those supposedly gender-neutral laws are themselves subtly, but powerfully, discriminatory. The best example of this (historically) is the family: the area which liberalism has protected as private has been precisely the site of women's oppression. Given the unequal balance of power between men and women, protecting the family sphere from judicial scrutiny masked injustices. Again, in MacKinnon's view, it is not coincidental that protected freedoms (such as speech) coincide with the areas in which women's inequality is now, in her view,

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maintained. One of MacKinnon's central points, drawn from Marxist theory, is that because many choices are products of oppressive conditioning, liberal freedom of choice will perpetuate oppression. MacKinnon's view is in contrast to Okin's liberal feminism, for while Okin also recognizes that social conditioning and free individual choices perpetuate sexual inequality, she argues that while "Rawls's Theory ... does not discuss such injustices of gender, [it] has great potential for doing so." Martha Nussbaum too has defended the project of liberal feminism against MacKinnon's critique. A crucial difficulty with MacKinnon's view is that her critique of liberalism seems to depend on a denial of freedom. Okin and Nussbaum — like many feminists—are also concerned with how social pressures shape women's choices, but MacKinnon goes much further in suggesting that women's choices cannot be truly free within a patriarchal society. In this chapter, I argue that Rawls's liberalism can indeed be an ally for feminism. But in contrast to Okin and Nussbaum, I focus primarily on the issue of liberal neutrality, a topic suggested by MacKinnon's work. While neutrality is often taken to be at odds with feminism—since, for example, it seems feminist education in schools would conflict with it—I argue that feminists should welcome neutrality as a moral ideal in the process of justification, and that neutrality itself will require substantive feminist reform. From MacKinnon's perspective, liberal neutrality is a deceptive fiction, concealing the state's patriarchal bias. In contrast, I argue that the liberal aspiration to neutrality supports feminist goals. I discuss two kinds of neutrality: neutrality at the level of justifying liberalism itself, and state neutrality in political decision-making. Both kinds are contentious within liberal theory. Rawls's argument for justice as fairness has been criticized for non-neutrality at the justificatory level. Rawls himself, in Political Liberalism, noted this problem in A Theory of Justice. I will defend a qualified account of neutrality at the justificatory level, arguing that the exclusion of certain creeds from the justificatory process is justified. I then argue that the justification process I describe offers a justificatory stance supportive of the feminist rejection of state-sponsored gender hierarchy. Further, I argue that liberal neutrality at the level of political decision-making will have surprising implications for gender equality. While—as Okin avows—Rawls himself may have remained ambiguous on how to address gender inequality, his theory implies that the state must seek to create substantive, not merely formal, equality.

Liberal neutrality Liberal neutrality is the doctrine that the state should remain neutral between competing conceptions of the good, where an individual's conception

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of the good is whatever plan of life she has, subject to certain rational constraints. Such conceptions may include, for example, commitment to religious beliefs, or to feminism, or to the traditional gender-structured family. Neutrality has been taken up widely by liberal theorists. For example, Ronald Dworkin has denned liberalism as the view that the government must "treat its citizens as equals" and argued that this requires that "political decisions must be, so far as is possible, independent of any conception of the good life, or of what gives value to life."Thus, the foundational libera l tenet of moral equality directly implies liberal neutrality. Will Kymlicka writes: "A central feature of contemporary liberal theory is its emphasis on 'neutrality'—the view that the state should not reward or penalize particular conceptions of the good life but, rather, should provide a neutral framework within which different and conflicting conceptions of the good can be pursued." 13 The doctrine of neutrality is often thought to be problematic, at many levels. First, some liberals have rejected the aspiration to neutrality between conceptions of the good, arguing that a commitment to moral equality need not imply a commitment to seeing all ways of life as comparable. Equal respect for individuals, on this view, does not require equal respect for whatever ends and values they possess. An argument associated with this view is that liberal neutrality involves an impoverished view of human life and human possibility and is likely to produce citizens in thrall to such a view. I will not address this criticism further here. Second, neutrality in political decision-making apparently presents serious impediments to such decision-making. For example, H. Tristram Engelhardt has argued that liberal neutrality conflicts with nationalized healthcare. He points out that such a system must either provide, or not provide, services such as abortion, assisted reproductive technologies, and physician-assisted suicide. Either way, he argues, it will privilege some comprehensive doctrines over others: for instance, a system providing abortion will privilege doctrines that see it as a legitimate medical procedure over those which see it as morally impermissible. I will return to this issue in the final section of this chapter. A third problem is that liberal neutrality seems to require that the justification for liberalism also be neutral, that is, that instead of basing liberalism on a controversial conception of human nature or of the good (as Mill arguably did), its defender must rest his or her case on principles that can be accepted by all reasonable persons. This issue is the subject of an important change that Rawls made in Political Liberalism to the view he defended in A Theory of Justice. The background to this change is that in Theory, Rawls had defined a political system as stable when it motivates its citizens to act according to its principles of justice: "One conception of justice is more stable than another if the sense of justice that it tends to generate is stronger and more likely to override

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disruptive inclinations and if the institutions it allows foster weaker impulses and temptations to act unjustly." To demonstrate the stability of justice as fairness, Rawls tried to show that citizens would be motivated to act justly within a system regulated by the principles of justice. To this end, he argued that the "disposition to take up ... the standpoint of justice accords with the individual's good," giving as a reason for this "the Kantian interpretation [of the theory of justice]: acting justly is something we want to do as free and equal rational beings." But this argument employs a premise about the nature of human good. It gives a Kantian conception of the good as a comprehensive doctrine, one in which acting justly accords with an agent's good. Rawls defines a "comprehensive doctrine" as a theory of value which applies to a wide range of subjects, such as "what is of value in human life, .. . ideals of personal character, as well as ideals of friendship and of familial and associational relationships."Liberal neutrality, however, requires neutrali t y between comprehensive doctrines. Thus, since assuming a Kantian comprehensive doctrine conflicts with neutrality between comprehensive doctrines, Rawls rejects this move in Political Liberalism. Not only did the account of stability illicitly employ a Kantian conception of the good as a comprehensive doctrine, but moreover, Rawls writes in Political Liberalism, Theorytreated justice as fairness itself as a comprehensive doctrine. Rawls had there presented a conception of a "well-ordered society" in which "everyone accepts and knows that the others accept the same principles of justice, and the basic social institutions satisfy and are known to satisfy these principles`However, the idea of a society in which "everyone accepts .. . the same principles of justice" conflicts with neutrality if justice as fairness is understood as a comprehensive doctrine. Rawls attempts to correct these problems in Political Liberalism by adjusting the scope of justice as fairness; it is not comprehensive, but narrowly political. As such, it is the possible subject of an overlapping consensus between various reasonable comprehensive doctrines—"religious, philosophical and moral"—which can agree to the regulatory principles of justice. Justice as fairness, as political, applies only to the basic structures of society and can slot into the various comprehensive doctrines found therein. In making these changes, Rawls was in part motivated by the circumstances of contemporary American society, especially the deep divisions over religion. In an interview, he explained the focus on religion in Political Liberalism as motivated by his concern "about the survival, historically, of constitutional democracy ... the problem is how do you see religion and comprehensive secular doctrines as compatible with and supportive of the basic institutions of a constitutional regime." Nevertheless, it is not clear either that the changes made in the later work will increase the appeal of his theory for those already

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holding incompatible comprehensive doctrines or that Rawls has made a plausible case for the stability of justice in a society deeply divided over questions of value. Some have suggested that the original account makes a more convincing case for the stability of the principles. Moreover, Political Liberalism's restriction of the scope of justice continues to fail to be neutral between all comprehensive doctrines. First, the argument for justice as fairness depends on a claim of moral equality. Rawls claims that human beings are morally equal in virtue of possessing the potential "for a conception of the good . . . [and] for a sense of justice." But the features of individuals which Rawls picks out as constitutive of moral equality are themselves not neutral, because they reflect a conception of what is important about human beings. Justice as fairness is not neutral in one respect in which it claims to be neutral because it privileges one conception of the good, that is, one in which the individual's plan of life is an object of rational choice. Someone who believes that autonomy is not especially important, or that humans are not equal in more important respects, might resist this claim. Thus, Rawls's derivation of the principles ofjustice appears illegitimately to ignore competing conceptions of the good. The response that neutrality is not foundational but derived from the ideal of moral equality appears to beg the question. Distinguishing between political and comprehensive doctrines, as Rawls does in Political Liberalism, does not meet this objection, because such a distinction is itself controversial. For by assuming that the political conception of the individual and its associated model of moral equality are the basis for defining political principles, Rawls has ignored comprehensive conceptions which would model political principles on alternative conceptions of the individual and his or her morally significant features.For instance, a comprehensive doctrine might simply deny that the political sphere is separable: examples of religions that would base law on religious teachings spring readily to mind. Thus the religious believer who seeks unity of Church and state, or a legal system based on the Old Testament, might respond to Rawls that his restriction of the scope ofjustice does not make the theory either neutral or acceptable to the believer. Or, a doctrine might allow such a distinction, but carve it differently: some feminist analyses of oppression are an example (consider the claim that "the personal is political"). Thus, MacKinnon might say in response to Political Liberalism that the distinction between comprehensive doctrines and the political implicitly excludes feminist considerations (which take issue with the content of various comprehensive doctrines and their effects in society) from justice as fairness. In the next section, I turn to the question of the extent to which such a response is justified.

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The Legacy of John Rawls Feminism, justificatory neutrality, and William Clifford

In the next section I will argue that neutrality at the level of political decisionmaking can serve feminist goals. Here I will argue that the restriction of justice as fairness to the political is less fruitful; moreover, neutrality at the level of theory justification must be qualified as "skeptical" or "agnostic," not pluralist. Such a procedure derives the ideal of moral equality and the policy of political neutrality (in decision-making by the liberal state) from the absence of any justification for unequal treatment. The procedure I will sketch is morally neutral—since it presupposes no claims about the good — but uses an epistemic argument to exclude doctrines that deny equality. It retains neutrality at the justificatory level only in a qualified manner. While some illiberal comprehensive doctrines must be tolerated, and their expression protected, in a liberal state, they can be ignored in the derivation of the principles governing such a state. My account is closer to Theory, which I see as more compatible with a feminist perspective in this respect, than to Political Liberalism. From a feminist perspective, it may be a mistake not to see justice as a comprehensive doctrine. Recall that a comprehensive doctrine applies to "what is of value in human life, . . . ideals of personal character, as well as ideals of friendship and of familial and associational relationships."According to most feminist views, justice should regulate these spheres—especially that of the family. Justice is not only a virtue of political institutions but also a virtue within the apparently private spheres of family and civil society. Some qualifications are important. The scope of justice should be distinguished from the question of the legitimate extent of state interference in individual lives. The state might promote, but not enforce, the ideal ofjustice in all spheres of life. Also, justice is not the only virtue. Principles of justice can be supplemented with other comprehensive doctrines. Third, the content of principles of justice may be different at micro and macro levels (for example, the difference principle might not be the relevant principle of distribution within the family). But the underlying theory of justice, deriving from the ideal of moral equality and equal respect, should be consistent from the macro to the micro level. From the liberal feminist viewpoint, in which justice should apply to the family, the restriction of justice to the political makes the theory less attractive. From the Marxist feminist viewpoint, restricting justice to the political begs the question of how the political ought to be defined (for example, if the political is defined as any relationship characterized by a dynamic of power, Rawls's distinction is incorrect). And within liberal theory, the restriction to the political does not seem to offer a significant advantage. As I have indicated above, it does not speak to those whose alienation from the theory Rawls

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sought to overcome, such as religious fundamentalists. However, allowing justice to be comprehensive conflicts with neutrality at the level of political decision-making, so I will defer this question. To return to the issue of justification, I think a defender of Rawls can give good epistemic reasons for rejecting certain creeds from consideration in the justification procedure, creeds which, for instance, would define humans as unequal or maintain that the Church ought to be the highest arbiter in political affairs. Rawls restricts himself to being neutral among reasonable views, but he allows religious views to be counted as reasonable. I will suggest that a stronger account of rational constraints on belief shows why it is legitimate for certain conceptions of the good to be disregarded at the level of political justification. Of course, this may not appeal to the believer, but, as I have pointed out, Rawls's more conciliatory approach is unlikely to, either. This approach will illuminate the appeal of Rawls's liberalism to feminism, for it begins with an ideal of moral equality incompatible with views of gender hierarchy. Indeed, most sexist and racist views (and other forms of illegitimate discrimination) are excluded from the justificatory process on the view I will describe. In an 1877 paper, William Clifford argued that it was ethically wrong to hold religious beliefs, or at least, to hold any beliefs "without sufficient evidence." Clifford argued that there is a normative requirement to evaluate our beliefs: "it is wrong always, everywhere, and for any one, to believe anything upon insufficient evidence."Clifford gives an example of a ship-owne r who sends his ship to sea sincerely believing in its sea-worthiness although he lacks sufficient evidence for this belief. The ship-owner is guilty of the deaths of the passengers when the ship sinks. Even had it not sunk, Clifford adds, he would still have been guilty, for he had no right to believe as he did. Clifford aims to establish a duty to doubt on several grounds, both consequentialist and deontological. Clifford's consequentialist arguments are interestingly resonant with discussions of feminism, liberalism, and stability. Where feminists warn that belief in gender hierarchy has subtle effects on women's actual status, Clifford somewhat confusingly paraphrases Jesus: "He who truly believes that which prompts him to an action has looked upon the action to lust after it, he has committed it already in his heart."Believing without warrant leads the incautious believer down the wide plain road of epistemological vice. Since belief is not "a private matter" but helps create society, vicious habits of belief infect posterity. The person who believes without warrant makes herself credulous, and thereby does a "great wrong towards Man," for (like Mill in On Liberty), Clifford claims that if society becomes a den of the easily convinced, it is poised to "sink back into savagery." These arguments take the critical examination of beliefs as instrumentally valuable.

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Clifford also suggests that "the faculty of belief" is valuable for its own sake and that failing to reflect critically on our beliefs fails to respect it: "Belief, that sacred faculty which prompts the decisions of our will, and knits into harmonious working all the compacted energies of our being, is ours not for ourselves, but for humanity." He castigates credulity, like lying, as a failure to revere the truth: Habitual want of care about what I believe leads to habitual want of care in others about the truth of what is told to me ... It may matter little to me, in my cloud-castle of sweet illusions and darling lies; but it matters much to Man that I have made my neighbors ready to deceive. The credulous man is father to the liar and the cheat. A credulous citizenry is, indeed, perhaps as great a threat to the stability of a liberal state as a quarrelsome but critical one. However, I am not equipped to evaluate these causal claims. I want to investigate the following ideas, suggested by Clifford, as relevant to Rawls's justification procedure: credulity, belief on insufficient evidence, is irrational (a bad strategy), and beliefs formed without sufficient evidence are unreasonable and lacking in respect for humanity. First, credulity is a bad strategy, both for the individual and the group, in policy debate. When discussion is undertaken for some purpose—such as choosing principles of justice—a rule of honesty is rationally justified since the knowledge that one's interlocutors may be lying will make progress much more difficult. But credulity will also undermine debate by making truthtelling unnecessary. (A rule against credulity might also be thought of as part of a Habermasian discourse ethic.) Someone might respond that lying is a sophisticated and time-saving form of communication; honesty is not always the best policy. But even if lying might be rational, believing too easily would never seem to be a good strategy in debate. In some cases, believing something we ought not to believe (on purely epistemic grounds) could be the best strategy (for example, when the belief will motivate us to action). But while credulity might be rational when one chooses it to motivate oneself, the dangers of indiscriminate credulity in debates of consequence clearly outweigh the possibilities of benefit. In most human interactions, doubt is rational. Though there may be isolated exceptions, doubt as a habit is rational, for credulity lets reason linger, in paraphrase Clifford, in cloud-castles of illusion, where its keenness may atrophy in the delights of darling lies. One might, therefore, justify the exclusion of the beliefs of the credulous from the original position by introducing a rule of doubt. At the more fundamental level of justification, Clifford's suggestion that credulity is an epistemological vice explains why beliefs without sufficient

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evidence are not reasonable, that is, why they fail to respect the process of the giving of reasons. Credulity eases the distinction between the true and the false.Clifford suggests that the truth demands reverence: belief is no light matter. To believe the truth of some claim is to make a judgement about the nature of the world. Further, belief invests the believer in its object. Our ability to believe, or not to believe, is basic to our rational maneuverings. The metaphysical magician, who waves the wand of his conviction without discrimination, granting this hypothesis truth and that not, mocks reason itself. Believing without sufficient evidence undermines the distinction between truth and falsity because it fails to be precise about that distinction; if I take to be true what could just as easily, to my knowledge, be false, I have failed to acknowledge the proper boundary between the two and the gravity of my judgment, both as it reflects on the world and as it implicates me. If this is right, credulity abuses humanity just as lying does in Kant's view, by failing to show respect for rational nature in oneself and others. Unwarranted belief fails to respect reason as an end in itself by using it as a toy to indulge prejudice, inclination, and fancy. Rawls argues that political justification must be reasonable, in the sense that such justification gives reasons which one could expect another to accept (whether or not they do in practice). According to Rawls's idea of political legitimacy, the "exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason."Rawls invokes this principle in justifying the idea of a public reason, that is, that considerations introduced into deliberations be limited to principles that citizens can reasonably be expected to endorse. Of course, reasonable people can disagree due to burdens of judgement. But Rawls would count more beliefs as reasonable than would my proposed Cliffordian constraints. My suggestion extends the category of the unreasonable to include beliefs without sufficient evidence, which I take to include most forms of revealed religion, atheism, and beliefs about the essential natures of particular races, men, or women. For what Clifford's arguments purport to do is raise the bar for the reasonable—for what we can, or should, take as a reason. Rawls's view that political justification must be reasonable involves normative assumptions about respect for individuals and the justification for the exercise of power over them. Giving reasons—or at least acting in a way for which one could give reasons that others could reasonably be expected to accept—is required (in Kantian terms) to treat others as ends in themselves, or "as beings who must ... be able to contain in themselves [or share] the end of the very same action." Rawls's political constructivism locates political legitimacy precisely in the possibility of agreement, or sharing of ends. As I

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have noted above, such a conception of political justification is not neutral between comprehensive doctrines, since some will reject reason as the appropriate form of political justification. My suggestion has been that, given this account of political justification, liberalism may exclude all unwarranted beliefs from its justificatory process. This is not to argue, however, that a liberal society should not be tolerant of different conceptions of the good, for such tolerance is fundamental to liberalism. Political neutrality issues from the veil ofignorance. Thus, the justification for liberalism need be even less neutral, with regard to competing doctrines, than Rawls suggests. An "agnostic" neutrality can exclude more competing doctrines from consideration. Further, the motivating ideal of liberalism can be generated on Gliffordian grounds, for the Rawlsian ideal of moral equality can be defended epistemically by ruling out unreasonable doctrines. Claims of essential inequality cannot be defended because individual exceptions can always be found, and it is difficult to see what evidence could be produced to justify claims about, for instance, women's nature. Predictions about the abilities of classes of people cannot be made with accuracy, so no legitimate reason for unequal distribution of rights between men and women can be given. Further, as John Stuart Mill argued in The Subjection of Women, we cannot make inferences about women's "nature" from the characteristics women exhibit in an unequal society in which women and men are subject to different expectations and upbringings. Under current conditions, we can have no grounds for making general claims about women's innate propensities and abilities.Someone might suggest instead that the distribution of rights or primary goods be proportionate to abilities. But how could the relevance of abilities be proven? The thought is that an unequal distribution of rights must be justified, and no sufficient evidence can be given for privileging certain groups or abilities. In the absence of such evidence, the default must be equality. Rawls's defense of reasonableness in political justification (and my extended version of it) cohere with feminist values by excluding sexist beliefs and hierarchical political systems. The exclusion of such beliefs avoids gender bias in the theory; Rawls's liberalism is radically, foundationally, egalitarian. MacKinnon's critique of liberal neutrality as essentially male may have purchase instead as a critique of the misguided application of liberal principles. For example, as suggested before, the historical exclusion of marriage from justice reflected a gender bias in the construction, and the application, of the law. This construction failed to appreciate that serious injustices which called for legal recourse existed in the supposedly private realm, and, further, that the privacy of marriage (if privacy is understood as absence of interference by the state) was illusory since the borders of that privacy, and aspects of the interaction within it, were regulated by law.

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Feminism and political neutrality Liberal feminism has drawn on the principle of equal opportunity to argue that liberalism is committed to state action to reverse gender inequality. When this principle is applied to gender inequality and the gendered structures of society, it requires the state to address these conditions through law and redistributive measures such as state-supported childcare, equitable laws of property division during marriage and on divorce, flexible working hours, parental leave for both parents, and gender-free schooling.56 As a basic structure of society—by Rawls's admission—the family is subject to the principles of justice.Prima facie, some feminist reforms, such as education in moral equality, seem incompatible with state neutrality. For example, many feminists hold that justice between the genders cannot be achieved so long as childcare remains primarily women's responsibility. Shared parenting, flexible working hours, and state-supported creches may support this goal and be compatible with neutrality. But education that encourages boys and girls equally to envision themselves as care-givers—or billboard advertisements encouraging men to change diapers—might conflict with neutrality by teaching children a controversial conception of the good. However, again deferring this conflict between neutrality and feminism, I want to focus on different implications that neutrality will have for feminist goals. MacKinnon's complaints about liberal neutrality focus on how the abstraction of liberal theory ignores the concrete context and effects of its application. Thus, a right to free speech in a (hypothetical) context where the media is controlled by sexist men will secure the protection of sexist speech, with ensuing bad consequences for women. However, if we accept MacKinnon's view that standing practices often have a deeply patriarchal element, then neutrality in practice will require radical change. First, certain apparently private social structures arguably impede women's equality. But, second, these structures are not purely private—for instance, it is mistaken to conceptualize civil society as a distinct sphere from the state and as free from state interference. Thus, state neutrality will require substantive change in state policies regulating these apparently private spheres, when standing regulation is premised on or promotes a certain conception of the good. Raz and Kymlicka have distinguished neutrality in deliberation—the state's avoidance of invoking conceptions of the good in policy-making—and in consequences—the state's avoidance of promoting, as a result of its actions, a conception of the good. I will adduce both kinds in the following discussion. Take the example of having children and a career. Women are formally free to choose a career, but, to a much greater extent than men, face a conflict between pursuing a career and having children. External obstacles to pursuing both include the expense of good childcare and the lack of flexibility in

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working hours imposed by many careers. The structures for pursuit of social primary goods are fitted for someone without the responsibilities of parenting. Because women typically take on greater childcare responsibilities than do men, these structures unduly penalize women and tend to reinforce the gendered division of labor by forcing parenting women out of the workplace. Green argues that such situations call for state redress on the basis of equal opportunity, since changes are needed to ensure that all individuals can pursue their conceptions of the good. But it is also the case that such structures are not neutral. The arrangement of working hours, for example, was historically formed on the basis of a gendered division of labor. Further, their effects unduly promote one conception of the good—that in which primary care-givers for young children stay home, while their partners work outside the home to support the family. It is crucial to my argument to note that the state directly maintains the working environment predicated on this conception in a host of ways. The state sets minimum wage and overtime laws, places constraints on working hours, and regulates employee rights through labor law; indirectly, it supports companies through government contracts; and as an employer, it enforces its own policies for those employed by the state. It also has more indirect effects through provision of services such as public transport (which affects access to employment). Once we consider the state's involvement in all of these areas, it becomes clear that the state has substantial effects on working conditions. Neutrality between conceptions of the good in this area will require creating policy on grounds that respect the variety of lifestyles persons might choose, and seeking to ensure that the consequences of policy do not indirectly promote one conception of the good. Another example is marriage. As Okin argues, although the family has been seen as private, it is a major determinant in the distribution of social goods, and thus family arrangements must meet the demands ofjustice. It is a life-shaping institution, the "gender structure [of which] is itself a major obstacle to equality of opportunity," affecting the "opportunities of girls and women." Again, reform of the family seems required on grounds of equal opportunity. But neutrality too requires substantial change to marriage and family law. Simply by recognizing marriage, the state fails to be neutral—and even if marriage were extended to same-sex partnerships, this would be the case. For by recognizing marriage, the state picks out a certain type of relationship—monogamous, permanent, between two persons—as worthy of recognition. Again, both in deliberation and effects, the state privileges this type of relationship—corresponding to a certain conception of the good—over other arrangements. When we consider how many of the basic structures of society are shaped by state regulation, and recognize—through feminist or other critique—how

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those structures assume and promote controversial conceptions of the good, it seems that neutrality will require substantial change. Ronald Dworkin has argued that a liberal state is required by neutrality to act to secure a conception of the good under threat. Taking the example of environmental conservation, he argues that a liberal state is not permitted to support conservation on the grounds that it is part of "a superior conception of what a truly worthwhile life is." But it may be permitted and even required to do so on the basis that non-intervention "is not neutral amongst competing ideas of the good life, but in fact destructive of the very possibility of some of these."If wildlife and nature are destroyed, the conception of the good which involves them will no longer be open to pursuit. Similarly, gender-structured social practices destroy the possibilities that would be available to women if they were fully equal members of society. The gendered division of labor within the family, the devaluing of women's work, and employment that penalizes those with small children close off alternatives that should be left open. Different courses of action are made unavailable by the social conditions themselves. Just as environmental destruction destroys the possibility of outdoor pursuits, the hegemony of gender-structured social practices destroys the possibility for women to live as they could in a society in which women were not systematically disadvantaged. The force of this point is not that women's lives could be better. The point is that the world that is made impossible by social practices is one in which women could live without the impediments to success and the strains on their psychology, their social relations, and their attitudes to and expectations of work, love, and parenting, which currently exist as a consequence of oppression. The closure of this possibility is unjust, and not just because it violates equal opportunity, but because it violates neutrality. Even when individual women are able to overcome barriers, they do not have access to conceptions of the good that would be available to them in a society where women were fully equal. Also eliminated are the unknown possibilities of the good, for women, of living as fully equal members of society. In this chapter, I have tried to show that feminism has more to gain from state neutrality than has been widely recognized. Justificatory neutrality as agnostic, like the foundational ideal of moral equality, implies a rejection of sexist and other oppressive doctrines. In practice, state neutrality implies substantial change, once the state's involvement in the apparently private sphere is recognized, and the disproportionate influence of a sexist conception of the good on those structures—and concomitant promotion of that ideal—is seen. Liberal neutrality need not be inconsistent with feminist goals; indeed, it may support them. In fact, if neutrality does require these far-reaching changes, the other conflicts between feminism and neutrality, or neutrality and justice

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as a comprehensive doctrine, may become less pressing. Attitudinal change or feminist education may be less important when primary care-givers are no longer penalized in their pursuit of a career, the law of marriage and divorce is reformed, and other substantial economic and legal changes are effected.

Notes 1.

2.

3.

4.

5. 6.

Susan Moller Okin, Justice, Gender, and the Family (New York: Basic Books, 1989), Ch. 5, quotation from 89. See also Veronique Munoz-Darde, "John Rawls, Justice in the Family, and Justice o^the Family," The Philosophical Quarterly 48.192 (1998), 335-52; she writes of Rawls that "the family is both treated as a distinct and fundamental institution, and never discussed in any detail." (See MunozDarde, "John Rawls," 337) As these writers have pointed out, in Theory, Rawls assumed that the family as it stands is just. (See TJ original edn, 467—8, and sections 70 and 71.) Susan Moller Okin, "Political Liberalism, Justice, and Gender," Ethics 105.1 (1994), 23-43 (43). Rawls replies to Okin in PRR reprinted in LP, 129-80, section 5, and in JF, IV.50. Andrew Smith has argued that these replies fail to address the problems raised by liberal tolerance of religious groups which oppress women; see "Closer But Still No Cigar: On the Inadequacy of Rawls's Reply to Okin's 'Political Liberalism, Justice,and Gender'," Social Theory and Practice30.1 (2004), 59-71. See Okin, "Political Liberalism, Justice, and Gender," 42—3. More recently, Okin has addressed the tensions between liberalism and democracy which arise in the context of conferring group rights on groups which oppress women. (See Susan Moller Okin, with respondents, in Joshua Cohen, Matthew Howard, and Martha C. Nussbaum (eds), IsMulticulturalismBadfor Women? (Princeton: Princeton University Press, 1999).) See Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987) and Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989), esp. 157-70. See also Carole Pateman, The Sexual Contract (Cambridge, UK: Polity Press, 1988). These feminist critiques of liberalism are influenced by Marxism. One can compare MacKinnon's claims to Marxist claims that liberal ideology serves capitalists while obscuring workers' oppression. The views of MacKinnon and Pateman should be distinguished from the feminist critique of liberalism motivated by an ethics of care or relationality; for an example of that view, see Virginia Held, "Non-Contractual Society: A Feminist View," in Marsha Hanen and Kai Nielsen (eds), Science, Morality, and Feminist Theory, Canadian Journal of Philosophy, Supplementary Volume 13 (1987), 111-37. MacKinnon, Toward a Feminist Theory, 195—214. Ibid., 161-2.

What should feminists make of liberal neutrality? 7. 8.

9.

10.

11. 12. 13. 14. 15. 16.

17. 18.

19. 20. 21. 22. 23. 24. 25. 26.

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Okin, "Political Liberalism" 42. Martha Nussbaum, Sex and Social Justice (Oxford, UK: Oxford University Press, 2000), 77—80. Indeed, though MacKinnon critiques liberalism, Nussbaum writes that we may see her as "a kind of Kantian liberal, inspired by a deep version of personhood and autonomy," 79. See John D. Walker, "Liberalism, Consent, and the Problem of Adaptive Preferences," Social Theory and Practice 21.3 (1995), 457-71, and my "A Liberal Response to Catharine MacKinnon," Southwest Philosophical Studies 22 (2000), 17-23. More fine-grained distinctions can be made; see pp. 883—4 in Will Kymlicka, "Liberal Individualism and Liberal Neutrality," Ethics 99.4 (1989), 883-905, and Joseph Raz, The Morality of Freedom (Oxford, UK: Oxford University Press, 1986). One might distinguish the two sorts of neutrality I have in mind by thinking of them as positioned before and after the original position. Justificatory neutrality is neutrality in the argument for the theory ofjustice; political neutrality is the neutrality exercised by the state in accordance with the principles ofjustice. TJ original edn, 92-3, and PI, 19. Ronald Dworkin, "Liberalism," in Stuart Hampshire (ed.), Public and Private M>™% (Cambridge, UK: Cambridge University Press, 1978), 113-43 (127-9). Kymlicka, "Liberal Individualism," 883. John Skorupski, "Liberal Elitism," in his Ethical Explorations (Oxford, UK: Oxford University Press, 1999), 193-212. H. Tristram Engelhardt, "Freedom and Moral Diversity: The Moral Failures of Health Care in the Welfare state," Social Philosophy and Policy 14.2 (1997), 180-96. See, for example, Colin Bird, "Mutual Respect and Neutral Justification," Ethics 107.1 (1996), 62—96: "it is not enough that the liberal state embrace an ethic of neutrality. The justification for this liberal stance must itself display a certain kind of neutrality or impartiality by avoiding arguments which rely on 'controversial' claims about the nature of the good life." (See Bird, "Mutual Respect and Neutral Justification," 62.) TJ original edn, 454. See also PI, 142. TJ original edn., 567, 572. One way to understand the principles ofjustice is as the object of choice of a free rational will. Rawls calls his method "Kantian constructivism": his principles, like Kant's moral law, are constructed through reason rather than intuited. (PL, 99-107) PL, 13. Ibid., xvi—xvii. TJ original edn, 453—4. Rawls dismissed this conception of a well-ordered society as "unrealistic" in PI, xvi. TJ original edn, 454, and see PL, xvi. See PL, xvi—xvii. He also revises the account of stability. PL, 15. PI, 11. Interview with Bernard Prusak, "Politics, Religion and the Public Good: An Interview with Philosopher John Rawls," Commonweal 125.16 (1998), 12-18, reprinted in CP, 616-22.

82 27.

28.

29. 30.

31.

32. 33.

34. 35. 36. 37.

38.

39.

40.

The Legacy of John Rawls See Michael Huemer, "Rawls's Problem of Stability," Social Theory and Practice 22.3 (1996), 375—96. For further discussion, see also Samuel Schemer, "The Appeal ofPolitical Liberalism," Ethics 105.1 (1994), 4-22. See, for example, Okin's "Political Liberalism, Justice, and Gender." Also, Susan Mendus has argued that Rawls's argument for the congruence of justice with the agent's good need not invoke a comprehensive conception of the good, and so the account in Theory need not be inconsistent—see "The Importance of Love in Rawls's Theory ofJustice," British Journal of Political Science 29.1 (1999), 57-75. TJoriginal edn, 561. To review some of the difficulties associated with establishing an account of moral equality, see Bernard Williams, "The Idea of Equality," in his Problems of the Self (Cambridge, UK: Cambridge University Press, 1973), 230-49. A related criticism, made by Adina Schwartz in "Moral Neutrality and Primary Goods," Ethics 83.4 (1973), 294-307, and by Thomas Nagel in "Rawls on Justice," Philosophical Review 82.2 (1973), 220-34, is that Rawls's individualism and his argument that contractors in the original position will seek to maximize their primary goods is incompatible with socialist views of the good, or indeed, with those of members of religious orders who take vows of poverty. (See also Kymlicka, "Liberal Individualism," 886—93.) Paul F. Campos raises such a criticism in "Secular Fundamentalism," Columbia Law Review 94.6 (1994), 1814-27. Of course, Rawls means only for justice as fairness to be compatible with all reasonable comprehensive doctrines (PL, 210), and he would surely view a doctrine which denied the separation of Church and state as unreasonable. It should be obvious why this response will not placate the believer in question. This is also Okin's concern; but the concern deepens in proportion to the range of social practices which one sees as constitutive of, and reinforcing, inequality. Cf. Okin's "Political Liberalism, Justice, and Gender" on this point. PL, 13. See Jean Hampton, "Feminist Contractarianism," in Louise Antony and Charlotte Witt (eds), A Mind of One's Own (Oxford, UK: Westview Press, 1993), 227-56. I use "civil society" in Hegel's sense. On this point, see Okin, Justice, Gender, andthe Family, and John Tomasi, "Individual Rights and Community Virtues," Ethics 101.3 (1991), 521-36. Makingjustice comprehensive suggests a much stronger liberalism. For example, it allows that the liberal view ofjustice will come into conflict with comprehensive views about the good, which include belief in gender hierarchy. This will produce social instability; if liberalism is to be stable, it must inculcate the principles of justice and associated ideals in education. This is the conflict Okin discusses in Mulhculturalism. In response to the idea that restricting justice to the political will promote stability, I say that justice, whether political or comprehensive, will be unstable unless ideals of moral equality are taught. Rawls distinguishes the rational and the reasonable. Rational applies to meansend reasoning, and reasonable to a willingness to enter discussions.

What should feminists make of liberal neutrality? 41.

42.

43.

44. 45. 46. 47. 48. 49. 50.

51.

52. 53.

54. 55. 56.

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Of course, on Rawls's description, they should be excluded in the original position because the contractors do not know their own race or sex. But my comments here respond to the objector who asks why Rawls is entitled to set up the original position in a race- or gender-blind way. Clifford's view has been challenged. William James responded to it in "The Will to Believe" (1896), reprinted in John J. McDermott (ed.), The Writings of William James (Chicago: University of Chicago Press, 1978), 717—35. Susan Haack has more recently argued that it is too demanding in her "The Ethics of Belief Reconsidered," in Lewis Hahn (ed.), The Philosophy of Roderick M. Chisholm (Chicago: Open Court, 1997), 129-44. A major problem with Clifford's view is the difficulty of specifying what evidence counts as sufficient. I will bracket these serious worries for two reasons. First, I am concerned with ruling out certain value judgements and religious beliefs from the justificatory process, not establishing that belief in them is ethically wrong. Second, I am more interested in comparing Clifford's arguments with Rawls's than with defending Clifford's conclusions. William Kingdon Clifford, "The Ethics of Belief," in his Lectures and Essays (eds Leslie Stephen and Frederick Pollock; London: Macmillan, second edn, 1886), 339—63 (346), originally published in Contemporary Review (1877). Clifford, "Belief", 342. Ibid. Ibid., 345; John Stuart Mill, OnLiberty (London: Penguin Books, 1985 [1859]). Clifford, "Belief", 343. Ibid., 345-6. Ibid., 346. As a character in David Lean's 1962 film Lawrence of Arabia suggestively says, "A man who tells lies, like me, merely hides the truth. But a man who tells half lies has forgotten where he put it." Kant's views on lying extend beyond the famous false promising example in the Groundwork; in the "Doctrine of Virtue," Book 1, Ch. 1, he writes that: "By a lie a human being throws away and, as it were, annihilates his dignity as a human being." (Immanuel Kant, Practical Philosophy, ed. Mary Gregor (Cambridge, UK: Cambridge University Press, 1996), 552—3) Part of the argument he gives for this is that lying contradicts the purpose of the faculty of communication. PL, 137. Rawls in fact claims the theory of justice is reasonable, not true, so Clifford's comments would have to be adjusted, mutatis mutandis, to emphasize the evaluation of reasons as opposed to the evaluation of true belief. From Kant's Groundwork of the Metaphysics of Morals, also to be found in Gregor's Practical Philosophy, 80 (4:430). John Stuart Mill, The Subjection of Women, ed. Susan Moller Okin (Indianapolis: Hackett, 1988 [1869]). Okin, Justice, Gender, and the Family, 175—9. Okin also bases her arguments on the family's influence on moral development, in response to Rawls's account of moral psychology in Part III of Theory. She argues that citizens will not develop a sense of justice so long as fathers and mothers possess unequal shares of power. Like

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Mill, she notes that habitual inequality in personal life ill equips us to treat others, in any circumstances, as free and equal. (Also see Karen Green, "Rawls, Women, and the Priority of Liberty," injanna L. Thompson (ed.), Women and Philosophy, Australasian Journal of Philosophy, Supplementary Volume 64 (1986), 26—36.) Green uses the liberty principle, as well as the principle of equal opportunity, in an argument for liberal feminism; however, invoking the liberty principle in this context seems to me problematic. 57. TJoriginal edn, 7. 58. See Kymlicka, "Liberal Individualism", 883—4. Raz (Morality) argues that Rawls endorsed neutrality in consequences, and Kymlicka that Rawls endorsed justificatory neutrality. Since both are implicated in the same way in my argument, I will consider both. 59. Green, "Rawls," 35. 60.

61.

Okin, Justice, Gender, and the Family, 16.

Feminists and Marxists have argued that monogamous marriage indirectly promotes other conceptions of the good (such as the value of property ownership). (See Christine Overall, "Monogamy, Non-Monogamy, and Identity," Hypaha: A Journal of Feminist Philosophy 13.4 (1998), 1-17 and John McMurtry, "Monogamy: A Critique," TheMonist56 (1972), 587-99.) 62. Dworkin, "Liberalism," 141.

5

Public reason and the moral foundation of liberalism Jon Mahoney

In Political Liberalism Rawls argues for the following conception of justice: The aim ofjustice as fairness... is practical: it presents itself as a conception of justice that may be shared by citizens as a basis of reasoned, informed, and willing political agreement. It expresses their shared and public political reason. But to attain such a shared reason, the conception ofjustice should be, as far as possible, independent of the opposing and conflicting philosophical and religious doctrines that citizens affirm. In formulating such a conception, political liberalism applies the principle of toleration to philosophy itself. The religious doctrines that in previous centuries were the professed basis of society have gradually given way to principles of constitutional government that all citizens, whatever their religious view, can endorse. Comprehensive philosophical and moral doctrines likewise cannot be endorsed by citizens generally, and they no longer can, if they ever could, 1 serve as the professed basis of society. Rawls believes a freestanding conception of political liberalism is the most promising liberal conception ofjustice because of its ability to accommodate the fact of reasonable pluralism, and promote a stable, well-ordered society. Political liberalism also imposes moral constraints on the kinds of reasons that can be invoked to defend principles ofjustice. In other words, political liberalism is the best version of liberalism because it accomplishes the practical and moral aims of liberalism better than those versions of liberalism — including the version defended in A Theory ofjustice—that defend liberalism as a comprehensive moral doctrine. The most striking difference between A Theory ofjustice and Political Liberalism is that the earlier work affirms a conception ofjustification that treats principles ofjustice as true whereas the later work affirms a conception ofjustification that treats principles ofjustice as acceptable to fair-minded citizens in a liberal democracy. 3 There are a number of objections to the idea of a freestanding political liberalism. Three are relevant to this chapter. One claims that Rawls's methodology in Political Liberalism leaves unclear whether he is affirming Kantian or

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Hobbesian liberalism. According to Kantian liberalism, justice requires that political principles be understood as principles that reasonable persons motivated by moral reasons can agree to. According to Hobbesian liberalism, justice requires that political principles be understood as principles that rational people motivated by a desire to advance their self-interest can agree to. Kantian liberalism requires a moral agreement. Hobbesian liberalism settles for a modus vivendi. Rawls insists that political liberalism affirms a Kantian yet freestanding moral conception of justice and thus that this conception requires an "overlapping consensus" that is affirmed for moral rather than strategic reasons. However, Rawls characterizes a freestanding yet moral doctrine as a doctrine that inherits moral content from the reasons citizens have for affirming it. This implies that the moral content of political liberalism emerges from a joint agreement by citizens who may have any number of reasons for accepting a liberal conception of justice. If political liberalism is freestanding because its justification emerges from a consensus, there is no way to specify in advance that only reasons offered by reasonable citizens qualify as legitimate reasons for affirming political liberalism. And thus political liberalism is indistinguishable from Hobbesian liberalism. A second objection contends that the reasonable rejectability criterion for moral justification must be taken to be true and thus one of liberalism's core principles cannot be regarded as freestanding. The reasonable rejectability criterion specifies that no agent can be forced to accept terms for social cooperation that he or she may reasonably reject. Rawls claims that many incompatible doctrines qualify as reasonable. Compatibility with freestanding principles of justice rather than truth is what qualifies a doctrine as reasonable. Therefore, political liberalism should refrain from judging the truth or falsity of any such doctrine, including itself. This is among the reasons Rawls claims that political liberalism applies the principle of toleration to itself. However, political liberalism must at least affirm the truth of its own foundational principle of justification. The substitution of reasonableness for truth cannot apply to the principle of reasonable rejectability itself for this would render liberalism utterly groundless. Finally, a third objection claims that those principles admissible by liberalism can only be regarded as justified if their soundness can be established from a shared, impartial point of view of practical reason. Rawls believes that political liberalism can be affirmed for separate yet equally justified reasons. A reason for affirming political liberalism qualifies as justified if it is affirmed from the standpoint of a reasonable comprehensive doctrine. Since there are, according to Rawls, a number of conflicting yet reasonable doctrines that affirm liberal principles, different doctrines can for different reasons affirm the same principles of justice. For instance, Kantian, utilitarian, and religious endorsements can all qualify as reasonable. This implies that the standpoint

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of practical reason from which agents affirm liberalism does not qualify as a shared point of view on the basis of which fundamental political principles are endorsed. Rather, freestanding principles of justice become part of a shared vision for political life only after citizens affirm such principles. But unless there is a point of view—and if not of practical reason, then what? — that can be construed as independent of all comprehensive doctrines, then the means for identifying a doctrine or reason as reasonable is quite mysterious. To claim, as Rawls does, that a doctrine or citizen is reasonable because it or he/she affirms the right kind of principles of justice—and not just for any reason whatsoever but for moral reasons—seems to presuppose a shared moral point of view. Each of these objections has been advanced by a number of liberal critics of Rawls. Those who offer such objections share a common argumentative strategy, which is to show that Rawls's attempt to defend a Kantian conception ofjustice without a Kantianjustificationis unsuccessful. Rawls believes he can answer this charge. Anyone familiar with Rawls's work knows that his painstaking attempt to present a systematic theory of liberalism is intended to equip his theory with an immunity to criticism. In fact, Rawls either anticipates or responds to all three objections claiming they can be rebutted, accommodated, or ignored because irrelevant. The purpose of this chapter is to demonstrate that Rawls cannot resort to any of these strategies if the three charges against political liberalism are presented in the right way. The first section considers the relationship between reasonableness and public reason. The second section considers Rawls's conception of citizens and their capacities. My exposition of Rawls's position focuses on the ideas of the reasonable and public reason as these concepts are used in Political Liberalism and in Rawls's more recent essay "Public Reason Revisited." In my view, the best way to argue against Rawls is first to establish that his conception of citizens and their capacities is indispensable to the moral foundation of political liberalism. In the third section I present an argument based on this strategy that purports to show that liberalism cannot be understood as a freestanding doctrine.

Reasonableness and public reason A reasonable citizen is someone willing to seek fair terms for social cooperation. Fair terms for social cooperation are those that can be jointly affirmed by all in a manner that affirms the equal standing of each. There are other ways that Rawls uses the concept of reasonableness, but for present purposes the capacity for reasonableness, a feature of the capacity for public reason, is the most important. Reasonableness in this sense is to be characterized as a

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capacity of citizens who want to regulate their lives in common through terms all can accept, where acceptability requires that such terms be fair. Rawls claims that the idea of public reason is contained in the idea of the reasonable. The idea of the reasonable contains the idea of public reason in the following way: reasonableness is a capacity to be fair in one's treatment of others and fairness supplies the minimal moral content to public reason. Public reason provides the norms that citizens, public officials, and judges should follow when making claims about matters of justice. The idea of public reason "is a view about the kind of reasons on which citizens are to rest their political case in making their political justifications to one another when they support laws and policies that invoke the coercive powers of government." 12 The subject of public reason is justice broadly construed. A citizen complies with what Rawls terms the ideal of public reason, when, for example, she demands equal employment opportunities on the grounds of political equality. By contrast, a citizen violates the ideal of public reason when he demands that others convert to his religion as a condition for equal political standing. As Rawls puts it, "we say that ideally citizens are to think of themselves as if they were legislators and ask themselves what statutes, supported by what reasons satisfying the criterion of reciprocity, they think it would be most reasonable to enact." 14 Public reason imposes a normative constraint on the kinds of considerations citizens are entitled to base their political judgements on and the ways in which citizens are to conduct themselves in their relations with other citizens. Should there be disputes about whether a reason falls within the range of acceptable public reasons, such disputes can be adjudicated by considering whether the reason in question could be accepted by all without violating liberalism's moral commitment to rights and equality. One might claim that the idea of the reasonable is rooted in the idea of practical reason understood as a capacity to present, solicit, and revise one's reasons for affirming principles. Rawls denies that liberalism must accept this connection between the reasonable and practical reason. Reasonableness is understood to be a normative concept that imputes a capacity to citizens; practical reason in the traditional sense used in comprehensive moral doctrines is understood to be a normative concept that imputes a capacity to persons. Political liberalism tries to avoid philosophical disputes about which reasonable people can disagree and thus tries to remain neutral on questions about practical reason. According to Rawls, the idea of public reason does not refer to the capacities of natural persons, and thus is to be distinguished from the capacity for practical reason. This is required in order to claim that the idea of public reason is part of a freestanding rather than comprehensive doctrine. In this way, the idea of reasonableness and the idea of public reason is

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said to be suitably nonsectarian; it is compatible with the sectarian views of all citizens willing to affirm political liberalism. The attempt to derive the reasonable and public reason from a comprehensive doctrine is a mistake, in Rawls's view, because accommodating the fact of reasonable pluralism requires minimizing controversies that are likely to erode support for liberal principles. In other words, liberalism understood as a comprehensive moral doctrine is to be rejected as the foundation for society's charter for political and legal institutions, because any comprehensive doctrine can be reasonably rejected. In Justice as Fairness: A Restatement, Rawls claims that were the state to affirm a comprehensive liberalism its exercise of political power would be oppressive: "This is as true of the liberalism of rightness as fairness, as it is of the Chris17 tianity of Aquinas or Luther."

Citizens and their capacities In Lecture II of Political Liberalism, "The Powers of Citizens and their Representation," Rawls offers an account of the capacities citizens can be assumed to possess in a liberal democracy. He claims that his discussion of the capacities that make possible reasonableness and public reason can be understood as applying exclusively to citizens and the freestanding liberalism they endorse. Rawls's formulation of these capacities is supposed to be so generic as to be acceptable to any reasonable citizen regardless of his or her comprehensive doctrine. He does not assert that natural persons lack these capacities; he claims only that political liberalism is neutral on this and other issues about which reasonable people disagree. The capacities of citizens include what Rawls terms the two moral powers: the capacity for a sense of justice—the reasonable—and the capacity to formulate and revise conceptions of the good—the rational. 19 Rawls further elaborates the two moral powers by claiming political liberalism regards citizens as having: (a) object-dependent desires (i.e. causally determined preferences), (b) principle-dependent desires (i.e. desires motivated by principles which may be affirmed for either moral or non-moral reasons), and (c) conceptiondependent desires (i.e. desires motivated by a reflectively endorsed conception of value). This characterization tracks a familiar distinction between motivating desires—desires that motivate independently of reasons—and motivated desires—desires that are motivated by reasons; object-dependent desires are motivating; principle- and conception-dependent desires are motivated. The primary reason Rawls claims political liberalism must impute such capacities to citizens is that such capacities are central to political autonomy. This conception of political autonomy includes the capacity for principle- and conception-dependent desires and these capacities serve to explain part of the

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moral foundation for public reason. Citizens who affirm the ideal of public reason have a conception-dependent desire to affirm reasons that others with the same conception-dependent desire also affirm. I interpret Rawls's account of reasonableness and conception-dependent desires as one way to characterize the reasonable rejectability criterion for moral justification. There is in fact no difference between claiming that reasonable citizens share a conception-dependent desire to find fair terms for social cooperation and claiming that reasonable citizens accept as justified only those reasons that no reasonable citizen can reject. Of course, there could be a difference between the norms of public reason and the reasonable rejectability criterion, yet Rawls characterizes the content of public reason in such a way that any reason that satisfies the norms of public reason will satisfy the reasonable rejectability criterion. Likewise, any reason that violates the norms of public reason will violate the reasonable rejectability criterion. In each case the content of the reasonable is specified in terms of a counterfactual claim about what citizens will and will not affirm if they are reasonable. Of course, the reasonable has to be understood as part of a freestanding political doctrine and thus neither public reason nor reasonable rejectability are to be understood as a conception of moral justification for all moral norms. Moreover, since political liberalism demands a conception of the citizen as free and equal, the account of citizens and their powers presented in Lecture II is a crucial part of the moral foundation of a freestanding political doctrine. The minimal moral content to political liberalism can, according to Rawls, be presented in a manner that any reasonable citizen can affirm, regardless of his or her comprehensive doctrine. The moral content to political liberalism can, in other words, be affirmed as the basis for an overlapping consensus endorsed by reasonable persons motivated to find fair terms for social cooperation. If Rawls's position is sound, his Kantian conception of the citizen is fit to serve as part of the content of justice that is affirmed within an overlapping consensus of reasonable persons jointly committed to finding fair terms for social cooperation. Since this conception can be affirmed within an overlapping consensus, it is neutral toward reasonable comprehensive doctrines, including those that deny a Kantian conception of moral justification. Moreover, given the practical aim of political philosophy, it is more important to achieve agreement about principles of justice than it is to achieve agreement about the reasons for them. Therefore, if a conception of justice can be affirmed for separate but equally legitimate reasons, political liberalism can accommodate the fact that different people will have different reasons for affirming the Kantian conception of justice advanced by political liberalism. There are good motives for adopting this strategy of conflict avoidance. It is a fact about the modern world that, as Montaigne put it, "the more we talk about such things [e.g. human nature, moral truth, the good life, etc.], the

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more we disagree—even with ourselves." Thomas Paine expressed the same idea when he claimed, "I do not believe that any two men, on what are called doctrinal points, think alike who think at all." Why not try to accommodate disputes about human nature (and others like it) by showing how such disagreements can be contained within an overlapping consensus on basic political norms? This question lies at the center of Rawls's attempt to elucidate the content of public reason with principles that do not presuppose any controversial moral doctrine. 25 From one perspective, Rawls's strategy is appealing. Liberalism has always been advanced as a conception of justice that affirms that reasonable people can disagree about many but not all things. Reasonable people can, for instance, disagree about whether Aristotle or Kant provides the best theory of justice. But no reasonable person can, as Locke famously put it, compel a person to affirm a belief by fire and sword. According to Rawls, his freestanding conception of political liberalism is the first to succeed in consistently fulfilling the practical aim of liberal theory—accommodating reasonable pluralism—while at the same time defending moral principles that all reasonable citizens can accept. However, I believe it is possible to present the charge that political liberalism cannot be freestanding in a way that Rawls cannot answer.

The argument against political liberalism The moral foundation of liberalism can be defended in one of three ways: option 1: as a conception one accepts as a result of one's affirmation of political liberalism; option 2: as a conception one must affirm as a presupposition for political liberalism; option 3: as philosophical truth about practical reason and persons. The criterion for evaluating each option is: does it provide a justification for the moral foundation of liberalism? I use the expression "the moral foundation of liberalism" to refer to the conception of the citizen and his or her powers and the reasonable rejectability criterion. My claims are: if we endorse Option 1, then it is impossible to distinguish a moral consensus from a modus Vivendi. If we endorse Option 2, then the moral foundation of liberalism must be affirmed dogmatically. Since Option 1 renders political liberalism indistinguishable from Hobbesian liberalism, it is unacceptable to anyone who believes a just society is chartered by moral principles affirmed for moral reasons. Option 2 does demonstrate how political

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liberalism can be understood as both freestanding—which makes it compatible with the fact of pluralism—and moral—which provides political liberalism with the reasonable rejectability criterion and other central moral concepts. But Option 2 is unstable; it requires that the central moral concepts required by liberalism be affirmed as both reasonable and part of a freestanding doctrine. I call this dogmatic liberalism 27 because it affirms a moral foundation for which no justification is provided. That leaves Option 3. In my view this is the preferred option for liberals who want to advance liberalism as a political doctrine with a moral foundation. Option 1 Rawls claims that not all reasons for affirming liberalism qualify as justified; political liberalism is not a doctrine of moral skepticism or complete neutrality about the reasons people have for affirming a conception of justice. However, any endorsement of political liberalism that reflects moral reasons that express a moral commitment to fair terms for social cooperation qualifies as a justified reason for affirming the Kantian yet merely political conception of justice advocated by political liberalism. This is one reason Rawls believes he can rebut the objection of those who claim that a Kantian conception must be endorsed by a Kantian justification. The idea of an overlapping consensus shows how conflicting doctrines can affirm for different reasons the same Kantian conception of justice. The moral foundation for political liberalism is part of an overlapping consensus among reasonable citizens, that is, citizens with a conception-dependent desire to find fair terms for social cooperation. Though such citizens also hold a variety of incompatible comprehensive doctrines they can agree on fundamental principles of justice because they agree that the charter for political society should be just. However, what justifies the claim that only moral reasons for affirming political liberalism are legitimate? 28 Option 1 is a strategy for justifying the moral foundation of liberalism that links justification to affirmation by citizens who affirm the moral content of an overlapping consensus for a number of different reasons. According to Option 1, the moral content to political liberalism is neutral regarding the various reasons citizens have for affirming this moral content. There is some textual support for the claim that this is a feature of political liberalism. At one point in his discussion of the senses in which political liberalism is freestanding, Rawls states, "In what sense are citizens free? .. . The relevant meaning of free is to be drawn from the political culture of [a democratic] . . . society." 29 Recall that the conception of citizens and their powers is presented by Rawls as part of the justification for the idea of public reason and reasonable rejectability. If this conception is drawn from the political culture of a democratic

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society, then the moral content to political liberalism is inherited. Of course, the democratic culture from which such a conception is drawn may embody the central moral concepts of liberalism. But that is beside the point. The issue here concerns the justification for the moral foundation of liberalism. With Option 1 political liberalism requires what it cannot achieve. On the one hand, it requires that only reasons motivated by fairness qualify as legitimate reasons for affirming political liberalism. On the other hand, from the perspective of this conception of political liberalism, there is no way to distinguish reasons for affirming political liberalism that are motivated by fairness and reasons motivated by self or strategic interests. In other words, the distinction between the reasonable and the rational cannot be invoked to distinguish legitimate from illegitimate reasons for affirming political liberalism if political liberalism presupposes that citizens already endorse the moral foundation of political liberalism. In order to rebut the charge that an overlapping consensus is compatible with a modus vivendi, Rawls must show that political liberalism is entitled to make moral demands on citizens concerning the reasons they have for accepting a conception of justice independently of the reasons citizens actually endorse. Characterizing Option 1 in this way is instructive in part because it explains the appeal behind the charge that Rawls's Kantian conception requires a Kantian justification. Option 1 brings to light the tension between what we might call the political and the moral aims of political liberalism. However, the reason Option 1 cannot be affirmed in a way that earns the right to distinguish an overlapping consensus from a modus vivendi is not that one must affirm a Kantian justification to earn such a right. Rather, one must affirm a moral conception, Kantian or otherwise, that has priority over any reasons citizens have for affirming political liberalism. This moral conception has to be presented as one that can be invoked prior to any reasons one might offer in favor of political liberalism. Option 2 According to Option 2, political liberalism is neutral regarding those reasons for affirming political liberalism that qualify as reasonable (i.e. reasons motivated by fairness) yet rejects as illegitimate reasons that are not motivated by fairness. On this interpretation, political liberalism is addressed to reasonable citizens in a way that imposes minimal moral requirements on the reasons they have for endorsing liberalism. In this way, political liberalism can serve as the focus of an overlapping consensus that both accommodates pluralism and affirms a moral conception of justice. Option 2 is a better representation of political liberalism than Option 1. Consider, for example, Rawls's claim that there are two senses in which a

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liberal doctrine may be political. A liberal doctrine is political in the right way if it imposes the following requirement: only moral reasons for affirming liberalism are justified reasons. By contrast, a liberal doctrine is political in the wrong way if it imposes the much weaker requirement: any reason for affirming liberalism is a justified reason. Political liberalism is supposed to be political in the right way, because it requires that citizens affirm it for public rather than private, and moral rather than instrumental reasons. An overlapping consensus that affirms political liberalism is therefore not compatible with a Hobbesian modus vivendi. Rather, it is a moral agreement for moral reasons by reasonable citizens who want to regulate their lives in common with fair terms for social cooperation. Option 2 is thus an improvement over Option 1 because it imposes the right kind of moral demand on citizens. It also qualifies as a freestanding conception because it presents the moral demands it imposes on citizens in a way that allows any moral reason advanced by a reasonable citizen to qualify as a justified reason for affirming liberalism. In "Justice as Fairness: Political not Metaphysical," Rawls claims the aim of justice as fairness as a political conception is practical, and not metaphysical or epistemological. That is, it presents itself not as a conception of justice that is true, but one that can serve as the basis of informed and willing political agreement between citizens viewed as free and equal persons.31 This passage illustrates that for Rawls a legitimate agreement about fundamental principles of justice is a consensus that affirms terms for social cooperation compatible with the idea of "citizens viewed as free and equal." "Free" and "equal" represent moral constraints that must be satisfied in order for a consensus aboutjustice to qualify as legitimate. A moral conception of the person is presented by political liberalism as a moral demand that citizens must recognize in the reasons they have for affirming liberal principles. Moreover, this moral demand requires reasonableness rather than truth regarding the various reasons citizens may have for affirming a liberal conception of justice. This feature of political liberalism illustrates how a freestanding doctrine can make moral demands on the reasons citizens have for affirming liberalism. The primary reason for preferring Option 2 over Option 1 is that it presents political liberalism in a way that makes clear why a modus vivendi is incompatible with a liberal conception of justice. Option 2 is also compatible with the idea of a freestanding doctrine. As one commentator puts it, "the reasonable ... is the political equivalent or analog of the true." Though the analogy is partial, this is a helpful characterization. Reasonableness is a standard that reasons must satisfy in order to qualify as legitimate. The reasonable thus

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plays a justificatory role in political liberalism. Like truth, reasonableness is a test for legitimacy. At the same time, the reasonable is far more inclusive than truth. Many reasons that will not generate an agreement about truth will nevertheless be acceptable as reasons for affirming liberal principles of justice. This is an appealing feature of political liberalism because it shows how political liberalism can accommodate the range of reasons citizens may have for affirming a liberal conception of justice. The problem with Option 2 is that there is no way for this conception to provide a justification for the moral foundation of liberalism; its moral content is a presupposition that is used to issue an unjustified declaration of the concepts and principles that citizens must endorse as a precondition for endorsing an overlapping consensus. Dogmatism is an apt characterization for apolitical liberalism that regards its moral foundation as a legitimate source of claims yet refuses to provide a justification for this foundation. Suppose we substitute "reasonable" for "true" and claim that political liberalism is committed to affirming the reasonableness of its own moral foundations. Reasonableness could then serve as a justificatory standard for evaluating political claims. We could then defend the thesis that some claims are justified because they are reasonable and leave unanswered questions about the truth of such claims. There is a familiar strategy in moral philosophy that might be deployed here. For example, some philosophers believe they can defend cognitivism and thereby establish that moral claims are objective without having to commit to a traditional version of realism. This strategy is not available to a methodology that espouses a freestanding political liberalism. Political liberalism needs some account of how the concepts and principles that make possible the distinction between acceptable and unacceptable reasons for affirming liberalism are justified concepts and principles. However, in order to remain freestanding, political liberalism must refrain from advancing a theory of justification that can serve to ground its own moral foundation. The substitution of "reasonable" for "true" does nothing to allay the charge that political liberalism offers a declaration instead of a justification. 34 My claim here is that political liberalism will be dogmatic if it is presented as freestanding and moral. My argument for this claim is based on four of the features of political liberalism discussed in this chapter: (1) (2)

(3)

Reasonableness is a willingness to seek fair terms for social cooperation. The demand that one be reasonable is a demand that liberalism makes on citizens independently of their comprehensive doctrines; reasonableness is a kind of categorical demand. Political liberalism applies the principle of toleration to itself and this means, according to Rawls, that political liberalism must refrain from affirming the truth of its own moral foundation.

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The Legacy of John Rawls Political liberalism is not groundless; it has moral content and this moral content can justify liberal demands for reasonableness.

These central features of political liberalism rule out appeals to truth as a way to justify the moral demands of liberalism. More importantly, the insularity required to formulate a doctrine as freestanding precludes affirming a conception of justification that one could appeal to in order to rebut the charge that a declaration has been substituted for a justification; political liberalism offers a declaration of, rather than justification for, its moral foundation. The conclusion that follows from this argument against political liberalism is, in my view, decisive. Unless there is an independent justification for demanding the priority of the reasonable over the rational, one that can be invoked to assess the reasons citizens have for affirming a conception of justice, political liberalism will lack a justification for the moral demands it makes on citizens. Invoking an independent justification for why only moral reasons for affirming political liberalism presupposes a moral point of view whose authority overrides attempts to affirm political liberalism for non-moral reasons. This point of view cannot be justified by a freestanding doctrine. Any justification for the priority of the reasonable over the rational will require a moral conception of the person and his or her capacities; and this moral conception has to be defended as part of a moral rather than freestanding doctrine. David Estlund has offered an interpretation of political liberalism that one could use to argue against my position. Estlund claims that on the most straightforward interpretation, political liberalism cannot be neutral toward its own foundation; it must affirm the truth of its principle of moral justification. Assuming the conception of truth advanced by liberalism does not specify any controversial claims about the nature of morality, admitting the truth of its own foundation renders political liberalism both coherent and freestanding. This renders political liberalism coherent because in affirming the truth of those principles and concepts required to express its moral demands on citizens, liberalism is given a foundation. Yet political liberalism remains freestanding because it takes no stand on controversial theses about the nature of truth in moral and political philosophy. Estlund claims this strategy can be used to rebut the charge that the very idea of a freestanding yet moral doctrine is incoherent. According to Estlund, political liberalism can affirm what he calls a minimal conception of truth without being committed to any specific thesis about moral truth. On this view, political liberalism affirms the truth of reasonable rejectability yet offers no metaethical theory ofjustification to substantiate the moral basis for this principle. There are two ways—each has undesirable

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consequences—that one might conjoin Estlund's proposal with the idea of a freestanding political doctrine. According to one, justification comes from citizens and their comprehensive doctrines (i.e. not political liberalism itself). According to the other, justification is alleged to come from within a freestanding liberal doctrine. I will briefly consider each strategy for affirming the truth of political liberalism. I argue that the first interpretation of Estlund's proposal yields a conception of liberalism that is incompatible with the idea of a freestanding doctrine. I argue that the second interpretation "declares" rather than "justifies" the moral demands that political liberalism imposes on citizens. Suppose the truth affirmed by political liberalism is the truth of a freestanding doctrine. Suppose also that citizens who affirm the truth of political liberalism do so because, in their view, affirming political liberalism enables them to achieve cognitive harmony between their comprehensive doctrines and a liberal conception of justice. Asserting the truth of political liberalism is therefore licensed by individual citizens deriving the truth of political liberalism from their comprehensive doctrines. If the comprehensive doctrines on the basis of which citizens affirm the truth of political liberalism demand the priority of the reasonable over the rational, then an agreement about justice will be a moral consensus. This characterization of the truth of political liberalism raises an important question. If the truth of political liberalism is derivative, does this entail that political liberalism is not freestanding? It depends. The answer is no if political liberalism (or some central feature of political liberalism) does not demand of citizens that they affirm its truth. This is the strategy that Rawls would prefer. The answer is yes if political liberalism (or some central feature of political liberalism) is affirmed as true. This is the strategy that would follow from Estlund's position if it were used to support the derivative status of political liberalism's truth. Each characterization of political liberalism comes with a serious cost. The first is merely a restatement of Option 1. The second is incompatible with the idea of a freestanding doctrine. If the moral foundation of political liberalism is affirmed as true and if this truth is inherited from one or more comprehensive doctrines, then it necessarily follows that in affirming the truth of the moral foundation of political liberalism one also denies that political liberalism is freestanding. There is, however, a second interpretation of Estlund's proposal, one that more closely matches the conception of political liberalism he wants to defend. Suppose the truth of political liberalism can be invoked without having to appeal to a comprehensive doctrine that supports political liberalism. On this view, political liberalism is a freestanding doctrine that affirms the truth of its moral content. In his discussion of different conceptions of the foundation of political liberalism, Estlund offers the following commentary:

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The Legacy of John Rawls We might . . . distinguish three possible versions of political liberalism and its foundations: a wholly procedural version avoids appealing to any standard of truth or correctness outside of acceptability to reasonable citizens. A version that appeals to the truth of the acceptance criterion regardless of its acceptability to reasonable citizens would be a dogmatic substantive liberalism. These ought to be rejected in favor of an undogmatic substantive political liberalism in which no doctrine is available in justification unless it is acceptable to reasonable citizens, not even this doctrine itself (this makes it undogmatic), because such an acceptability criterion is true or correct independent of such acceptability (this makes it substantive). 38

In light of the issues discussed in this chapter, this is a very tantalizing proposal. It promises to show that one can affirm political liberalism in a way that satisfies the practical aim of political philosophy as Rawls defines it, while at the same time affirming the truth of the reasonable rejectability criterion. Estlund's proposal could therefore be conjoined to the idea of a freestanding liberal doctrine in a way that clearly distinguishes political liberalism from Hobbesian liberalism. The priority of the reasonable over the rational is a feature of the moral foundation of political liberalism and this foundation is affirmed as true. This is a very appealing version of Option 2. Estlund's attempt to remain faithful to Rawls's claim that political philosophy should be practical, while rejecting Rawls's claim that political liberalism can remain neutral regarding the truth of its own foundational principle of justification, is a well-motivated attempt to defend an improved version of Rawls's project. Unfortunately, the methodological strategy Estlund advocates is itself open to the charge of dogmatism. This is a result of his attempt to combine "true" with the idea of political liberalism. The claim that a conception of political liberalism is undogmatic because it affirms that "no doctrine is available in justification unless it is acceptable to reasonable citizens" does not suffice to show that the moral foundation of liberalism is undogmatic. Rather, it shows only that if one affirms political liberalism, then one can undogmatically demand of citizens that they offer reasons that others cannot reasonably reject. But what is the justification for affirming political liberalism in the first place? If one's response to this question is, "because the moral foundation of political liberalism is true" then one had better have some justification to back up this claim. According to Estlund, political liberalism need only assert its foundational principle ofjustification to be true in the minimal sense. However, if reasonable rejectability is affirmed as true, then it must be reasonable to ask "what entitles political liberalism to affirm the priority of the reasonable over the rational?" Otherwise, "declaration" rather than "justification" is the most apt characterization of the status of the fundamental moral demand that political liberalism makes on citizens. Yet

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the very idea of asserting the truth of reasonable rejectability but only in the minimal sense precludes offering such a justification. Therefore, invoking "truth" to make demands under these restrictions (i.e. that one offers no justification for the claim whose truth is asserted) is a form of dogmatism. Estlund's proposal turns out to be a version of dogmatic liberalism. On Estlund's view we should loosen the reigns and modify the third feature of political liberalism listed above—that political liberalism must refrain from affirming the truth of its own moral foundation—and claim instead that political liberalism must admit the truth of its own foundational principle of justification. I have tried to show that this is an unsuccessful attempt to salvage political liberalism. Unless one is committed to providing a justification for the moral foundation of liberalism the charge of dogmatism obtains even if we substitute "true" for "reasonable." Option 3 Option 3 accepts the demand that liberals are required to offer a justification for the moral foundation of liberalism. I will not attempt to offer a complete justification here. Instead, I propose a strategy that treats the reasonable rejectability criterion and the capacities of citizens as part of a partially comprehensive moral doctrine. In calling liberalism a partially comprehensive doctrine I intend to convey the following: liberalism is a political doctrine that does not attempt to defend a theory that encompasses all values, yet liberalism does regard its moral foundation as justified and true. On this view, liberalism encompasses values that define principles that are to be expressed within what Rawls terms the basic structure of society.41 Moreover, since on my view liberalism does regard its moral foundation as justified and thus true, liberalism is not freestanding. The most compelling reason to advocate this conception of liberalism is that it offers a principled defense of a moral point of view that affirms the priority of the reasonable over the rational. The justification for this point of view rests on a conception of citizens, the reasonable rejectability criterion and practical reason. This strategy for defending liberalism also has the advantage of being free of the problems inherent in Options 1 and 2. In restricting the class of legitimate reasons for affirming a liberal conception of justice to reasons motivated by reasonableness, Rawls invokes a counterfactual constraint: the reasonable rejectability criterion for moral justification. Reasonable rejectability is a normative requirement to which all reasons for affirming political principles must conform. The most well-known version of the reasonable rejectability criterion for moral justification is 42 defended by Thomas Scanlon. Although he acknowledges the similarities between his own and Scanlon's position, Rawls is adamant in claiming that

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political liberalism does not require a commitment to a moral point of view or principle that extends beyond the scope of the practical and limited normative aims of political philosophy. Whereas for Scanlon, reasonable rejectability is a contractarian principle of moral justification, for Rawls, reasonable rejectability is a feature of a freestanding political liberalism. It is clear, therefore, that Rawls does not intend liberalism's principle of justification to be interpreted in the way I am suggesting here. The main reason for this is that reasonable rejectability understood as a criterion for moral justification would have to be part of a comprehensive moral doctrine because it takes sides in debates about which reasonable people can disagree. 44 For example, one might affirm a comprehensive moral doctrine that rejects contractualist models of justification altogether. Political liberalism, in Rawls's view, should be presented in such a manner that people who hold such views can affirm a Kantian conception of justice without having to modify their comprehensive moral doctrine. However, if neither Option 1 nor Option 2 can offer a satisfactory account of this central feature of liberalism, then the best strategy is to defend a moral position that can provide a justification for adopting reasonable rejectability as the criterion of moral justification. Provided this characterization of reasonable rejectability is interpreted as part of a justification for the moral foundation of liberalism, Rawls's own characterization of the capacities of citizens as discussed in the first section of this chapter is a good starting point. Rawls claims that liberalism imputes to citizens a capacity for principleand conception-dependent desires. If we jettison the claim that liberalism is a freestanding doctrine, then this feature of liberalism is naturally construed as a claim about practical reason. This commits liberals to a conception of practical reason that affirms the priority of reason over desire. This priority is exhibited by the judgement sensitivity of at least some of the desires citizens have concerning their political interests and of the demands they are entitled to make on other citizens regarding such interests. One straightforward implication of the idea of a conception-dependent desire is that of a desire whose motive comes from something other than a desire. This is exactly the sort of claim that liberals should defend as a straightforward, though controversial, claim about persons and their capacities. There is no reason to qualify this capacity for practical reason as a capacity of citizens rather than persons if the idea of this capacity is understood to be part of the moral foundation for liberalism. It is instructive in this context to consider Rawls's analysis of Kant's distinction between empirical and pure practical reason. When an agent deliberates about action from the standpoint of instrumental reason he or she adopts the point of view of empirical practical reason. The principles of action

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considered by empirical practical reason correspond to what Kant termed hypothetical imperatives. By contrast, when an agent deliberates about action from a moral point of view he or she adopts the point of view of pure practical reason. The principles of action considered by pure practical reason are evaluated by what Kant called the categorical imperative (i.e. the moral point of view). This distinction between types of practical reasoning parallels Rawls's distinction between the rational and the reasonable. The most significant feature of the moral point of view is that it imposes the following restriction on practical deliberation: "the reasonable frames the rational and limits it absolutely." In this way the reasonable frames the point of view from which persons can for legitimate reasons affirm liberal principles of justice. Legitimate reasons satisfy the reasonable rejectability criterion; illegitimate reasons do not. In connecting the categorical demand for reasonableness to a conception of citizens and their capacities, including the capacity for practical reason, the liberal strategy for justifying its moral foundation is a version of Option 3. This characterization of practical reason is well-suited for a liberal-contractarian conception of moral justification that avails itself of core Rawlsian concepts such as reasonableness and public reason. Charles Larmore provides a clear account of the requirement that one's reasons for affirming principles of justice satisfy public and shared criteria of justification: Publicity really amounts to the demand that the reasons each person has to endorse the principles [of justice] be reasons the person sees others to have to endorse them as well. It requires that the principles ofjustice be grounded in a shared point of view.48 A similar claim is offered by Habermas when he claims: reasonable citizens cannot be expected to develop an overlapping consensus so long as they are prevented from jointly adopting a moral point of view independent of, and prior to, the various perspectives they individually adopt from within each of their comprehensive doctrines. The notion of reasonableness is either .. . too weak to characterize the [justification for a] conception of political justice, or it is defined in sufficiently strong terms, in which case what is ... reasonable is indistinguishable from what is 49 morally right. Rawls of course claims that political liberalism can be understood to rest on a shared point of view so far as reasonable persons can affirm the same principles ofjustice and thus participate in an overlapping consensus. However, since

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Options 1 and 2 yield unacceptable results, this shared point of view cannot be understood as part of a freestanding conception of justice. Rather, the shared point of view of practically reasoning agents must be understood as a precondition for a moral agreement among reasonable persons. Furthermore, the moral constraints imposed by this point of view should be affirmed nondogmatically; they should be justified rather than merely declared. Combined, the reasonable rejectability criterion and the characterization of citizens and their capacities should be presented as a way to defend the special status of persons. For partially comprehensive liberals, reasonable rejectability is a contractarian principle of justification that satisfies—better than alternative principles—a commitment to "respect for persons," a long50 standing ideal of liberalism. Option 3 treats the conception of the person as part of a defense of the reasonable rejectability criterion for moral justification. And the defense of this criterion appeals to considerations that must be argued for on philosophical, rather than freestanding political grounds.

Conclusion Rawls's contribution to contemporary liberal political philosophy is both substantive and methodological. On the one hand, Rawls's conception of justice defines the current framework of thought for egalitarian liberalism. On the other hand, the position advanced in Political Liberalism presents a novel view about how liberal principles should be defended in modern, pluralistic societies. In this chapter I have been concerned with this aspect of the Rawlsian legacy. My objections to the idea of a freestanding political doctrine take nothing away from Rawls's egalitarian liberalism. The substantive conception of justice defended by Rawls is, in my view, the best version of egalitarian liberalism. A Theory of JusticeandPolitical Liberalismare as yet unmatched as a defense of a substantive liberal conception of justice. It is important, however, that liberals offer the best possible justification for their position. If the argument presented in this chapter is sound, then the moral foundation for liberalism cannot be defended as part of a freestanding political doctrine. This does not mean that liberalism should be defended as a complete or full-blown comprehensive doctrine that aspires to define values for human life as such. Liberalism is a political doctrine in the sense that it defines the values that underlie public institutions and the ideals of citizenship. These political values, however, require a moral justification that is not provided by a methodology that treats the basic moral concepts of liberalism as freestanding. Liberalism is one moral doctrine among others and must be accepted or rejected in light of traditional criteria of moral justification. 51

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Notes 1. PI, 9-10. 2. According to Rawls, a doctrine "is comprehensive when it includes conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relationships, and much else that is to inform our conduct, and in the limit to our life as a whole." (PL, 13) By contrast, "Political liberalism . .. aims for a political conception of justice as a freestanding view. It offers no specific metaphysical or epistemological doctrine beyond what is implied by the political conception itself." (PL, 10) 3. Jean Hampton, "Should Political Philosophy Be Done Without Metaphysics?" Ethics99July (1989), 791-814 (791-2). 4. Hampton, "Political Philosophy," 800. 5. PL, 15. 6. David Estlund, "The Insularity of the Reasonable: Why Political Liberalism Should Admit the Truth," Ethics 108 (January 1998), 252-75 (253). 7. Jiirgen Habermas, "Reasonable Versus True: Or the Morality of Worldviews," in P. de Grieff and C. Cronin (eds), The Inclusion of the Other (Cambridge, MA: MIT Press, 1998), 75-101 (88-9). 8. These objections have been advanced by, among others, Estlund, "The Insularity of the Reasonable;" Habermas, "Reasonable Versus True;" Hampton, "Political Philosophy;" Charles Larmore, The Morals of Modernity (New York: Cambridge University Press, 1996) and "The Moral Basis of Political Liberalism," Journal of PhilosophyXCVI.12 (1999), 599-625; Joseph Raz, "Facing Epistemic Diversity: The Case of Epistemic Abstinence," Philosophy and Public Affairs 19 (1990), 3—46; Kok-Chor Tan, Toleration, Diversity, and Global Justice (University Park: Pennsylvania state University Press, 2000); and Leif Wenar, "Political Liberalism: An Internal Critique," Ethics 106 October (1995), 32-62. 9. PRR in LP, 129-80. 10. "Rawls refers to reasonable principles ofjustice, reasonable judgments . . . a reasonable overlapping consensus .. . reasonable norms . . . the virtue of reasonableness . . . reasonable pluralism . .. reasonable agents or persons" among many other senses of reasonableness." (Wenar, "Political Liberalism," 32) 11. PI, 62. 12. PRR, 165. 13. The conception of equality affirmed byjustice as fairness is: "social and economic inequalities are to be arranged so that they are both (a) to the greatest expected benefit of the least advantaged and (b) attached to positions and offices open to all."(TJ, 72) 14. PRR, 135. 15. Rawls states that public reason "has five different aspects: (1) the fundamental political questions to which it applies; (2) the persons to whom it applies (government officials and candidates for public office); (3) its content as given by a family of reasonable political conceptions ofjustice; (4) the application of these conceptions in discussion of coercive norms to be enacted in the form of legitimate law for

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16. 17. 18. 19. 20. 21. 22. 23. 24. 25.

26. 27.

28. 29. 30. 31. 32. 33.

The Legacy of John Rawls a democratic people; and (5) citizens" checking that the principles derived from their conceptions ofjustice satisfy the criterion of reciprocity." (PRR, 133) PRR, 172. JF, 187-8. PI, 47-88. Ibid.,81. WzW.,81-6. For an instructive account see Jonathan Dancy, Moral Reasons (Oxford, UK: Blackwell, 1993), 9. Rawls discusses the similarities between his conception of reasonableness and reasonable rejectability in PL, 49, 85. Quoted by Larmore, Morals of Modernity, 151. Quoted in Ibid., 169. Rawls also claims that reasonable citizens accept the burdens ofjudgement. The burdens ofjudgement include the very demanding evidentiary and normative criteria that can rightly be invoked in moral argument. Rawls claims there are six: (1) Evidence: evidence relevant to resolving disagreement is "conflicting and complex, and thus hard to assess and evaluate." (2) Relevance: evaluating the respective relevance of various considerations often results in conflicting and complex judgement. (3) Indeterminacy: all moral and political concepts "are vague and subject to hard cases." (4) Personal experience: in modern society diversity of religion, culture, conceptions of the good life, etc. will shape persons' moral sensibilities in different ways. (5) Normative considerations: conflicting comprehensive doctrines and kinds of normative considerations—moral, legal, religious, and political, for instance—are an unending source of disagreement. (6) Restrictions on values that can be realized within any society. Following Isaiah Berlin, Rawls claims there are inevitable limits to the range of values that can be pursued and realized within a political society. Rawls argues that political liberalism but not comprehensive liberalism satisfies the burdens ofjudgement. (PL, 54—8) John Locke, Letter Concerning Toleration (The Hague: M. Nijhoff, 1963). This phrase is used by David Estlund to characterize a version of liberalism that "appeals to the truth of the acceptance criterion [i.e. reasonable rejectability] regardless of its acceptability to reasonable citizens." (Estlund, "The Insularity of the Reasonable," 256) I characterize dogmatic liberalism more broadly to include any version of liberalism that asserts a moral foundation without providing a justification for this foundation. For a version of this argument see Habermas's "Reasonable Versus True," 77—8. JF, 21. Ibid., 188-9. John Rawls, "Justice as Fairness: Political not Metaphysical," in CP, 388-414 (394). Daniel A. Dombrowski, Rawls and Religion: The Case for Political Liberalism (Albany: state University of New York Press, 2001), 84. See for instance Christine Korsgaard's Sources of Normativity (New York: Cambridge University Press, 1996).

Public reason and the moralfoundation of liberalism 34.

35. 36.

37.

105

One might object at this point and claim that I am ignoring Rawls's Kantian constructivism, which is the method of justification used to defend the original position as an ideal bargaining situation and as a device for selecting the two principles of justice. However, in Political Liberalism Kantian constructivism is presented as part of a freestanding conception rather than as a justification for the claim that liberalism should be freestanding. Estlund, "The Insularity of the Reasonable." Estlund claims "we can distinguish between minimal and substantial senses of truth. A statement P is true in the minimal sense if and only if P. 'All people are equal' is true in the minimal sense if and only if all people are equal." (Estlund, "The Insularity of the Reasonable," 263) Rawls claims that "if any of those reasonable comprehensive doctrines supports only true moral judgements, the political conception itself is correct, or close thereto, since it is endorsed by a true doctrine. Thus, the truth of any one doctrine in the consensus guarantees that all the reasonable doctrines yield the right conception of political justice, even though they do not do so for the right reasons as specified by the one true doctrine." (PL, 128) It is important to stress that this claim does not imply that one can affirm the truth of political liberalism as a reason for why others must accept it as a conception of justice; at least not on Rawls's interpretation of political liberalism.

38. Estlund, "The Insularity of the Reasonable," 256. 39. 40. 41.

42.

Ibid. Ibid., 270-1. For us the primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages of social cooperation. By major institutions I understand the political constitution and the principal economic and social arrangements." ( T J , 6) Thomas Scanlon, What We Owe To Each Other (Cambridge, MA: Harvard University Press, 1998).

43. PL, 49-50. 44.

45. 46. 47. 48. 49.

I do not intend to imply that on my view liberalism should be unconcerned with the fact of pluralism. Rather, Option 3 affirms a conception of liberalism that is committed to providing a principled moral justification for why the exercise of political power is to be constrained by a liberal conception of toleration. I have not addressed the question of how liberalism, on my conception, should construe liberal toleration. It does follow from my argument that liberalism requires a moral justification for its conception of toleration and that this justification cannot be part of a freestanding doctrine. This expression is from Scanlon, What We Owe, 18—22. LUMP, 230-2. Ibid., 230-1. Charles Larmore, "Public Reason," in Samuel Freeman (ed.), The Cambridge Companion to Rawls (New York: Cambridge University Press, 2003), 368-93 (371). Habermas, "Reasonable Versus True," 77.

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50. For a version of this argument, see Larmore, The Morals of Modernity and "The Moral Basis of Political Liberalism." 51. Draft versions of this paper were presented at the 2003 Eastern Division Meeting of the American Philosophical Society in Washington, DC, Auburn University, Kansas state University, and the University of North Florida. I am grateful to audiences at each location for helpful criticisms and suggestions. I also thank two referees for the Journal of Moral Philosophy for providing a number of helpful suggestions.

6

Dilemmas of public reason: pluralism, polarization, and instability Robert B. Talisse

Rawls has not adequately resolved the dilemmas created by the "irreconcilable values" that are the starting point of his political liberalism. 1

Rawls's freestanding liberalism A little over a decade ago, John Rawls launched a searing criticism of liberal political theory. The force of the criticism is captured by Rawls's claim that "the question the dominant tradition has tried to answer has no answer." 2 By this, Rawls meant that the traditional aspiration of liberal theory to provide a firm philosophical foundation for liberal politics was profoundly misguided. According to Rawls, this aspiration, common to Locke, Kant, Mill, and others, is misguided due to the fact of reasonable pluralism. Reasonable pluralism is the claim that moral epistemology is such that conflicts between fundamental philosophical, moral, and religious views—what Rawls calls "comprehensive doctrines"—are intractable even among fully rational persons. Since liberalism is committed to a conception of legitimacy according to which the political order must be justifiable "to every last individual," and since the fact of reasonable pluralism means that there is no comprehensive doctrine that can win the consent of all reasonable citizens, a radical conclusion follows: The project of trying to propose a philosophical justification for liberal politics is inherently self-defeating. 5 Accordingly, in Political Liberalism and related work, Rawls proposed to apply "the principle of toleration to philosophy itself." This is done by jettisoning the philosophical aspiration of liberal theory; rather than proposing philosophical premises from which liberal commitments are supposed to follow, the political liberal begins by "looking to the public culture" of a modern liberal society and attempts to identify a "shared fund of implicitly recognized basic ideas and principles." In this way, Rawls proposes a liberalism that is "freestanding." The objective of a freestanding liberal theory, then, is not to provide a proof of liberalism, but to "formulate [characteristically liberal] ideas and principles clearly enough to be combined into a politi9 cal conception of justice congenial to our most firmly held convictions."

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According to Rawls, the task of collecting and systematizing the principles implicit in a liberal society is the "most we can expect" from liberal philosophy, "nor do we need more." 11 Rawls's political liberalism has been criticized from all sides. Liberal theorists such as Jean Hampton, Ronald Dworkin, and Samuel Schemer have argued that a freestanding liberalism is an impoverished liberalism, a liberalism that in the end cannot give anyone a reason to be a liberal. Other theorists, both liberal and otherwise, have argued that it is strictly impossible for liberal theory to "stay on the surface, philosophically speaking," because there are substantive and contestable philosophical claims latent within the "considered convictions" from which Rawls begins. 18 These debates are still very much alive in the literature, and it is difficult to discern whether there will be any clear victor. Hence my argument in the current chapter deviates slightly from the typical critical strategies. Here I shall launch an internal objection to Rawls's political liberalism. The argument will focus on Rawls's conception of public reason and will show that political liberalism must fail according to its own criteria of success. More specifically, the argument will show that whereas Rawls invokes public reason as a mechanism for maintaining political stability, recent work by Gass Sunstein shows that there are sound empirical reasons for thinking that the strictures of public reason will in fact generate increasing levels of instability. 19 Although the argument targets Rawls's position in particular, the general line of objection can be brought against a variety of views of public discourse in currency. The Rawlsian models of proper public discussion proposed by Thomas Nagel, Bruce Ackerman, Stephen Holmes, and Charles Larmore are vulnerable to the criticism I shall raise. Additionally, influential versions of deliberative democracy, such as those offered by Joshua Cohen, 24 and Amy Gutmann and Dennis Thompson, 25 are subject to my criticism. It may also be the case that the discursivisms ofjiirgen Habermas and KarlOtto Apel are similarly jeopardized. I of course cannot argue for all of these claims in a single chapter; the point is that a successful critique of Rawls will implicate many other theorists.

Background: stability and consensus First some background must be set in place. The main question driving Political Liberalism is that of how it could be possible for citizens to achieve consensus on a single conception of political justice under conditions of reasonable pluralism. One obvious answer is what Rawls called a modus Vivendi agreement. Where liberalism is adopted as a modus vivendi, each citizen sees the political order as an acceptable compromise between the unattainable best state of

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affairs—namely, a politics based entirely on his own comprehensive doctrine—and the avoidable worst state of affairs—namely, a political order that completely reflects a doctrine that opposes his own. Although the suggestion that justice prevails where no one gets what he most wants, but everyone avoids what he most fears enjoys a distinguished lineage stretching through Hobbes back to Plato's Glaucon, it is rejected by Rawls. According to Rawls, a modus vivendi agreement can last only for as long as there is a relative balance of power among the conflicting doctrines. Since a modus vivendi liberalism is really nothing more than a truce, it can provide no motivation for an individual to uphold the agreement should the balance of power turn decisively in his favor. A modus vivendi liberalism is "political in the wrong way," 28 and hence inherently unstable. By contrast, Rawls envisioned a liberalism that could win an overlapping consensus among citizens. Where a liberal order is endorsed in an overlapping consensus, each individual sees the liberal conception as the appropriate expressions of his own comprehensive doctrine in the political sphere. Thus, although citizens do not share a common justificatory account of liberalism, each supports the political order "for its own sake" and "on its own merits"; 29 consequently, individuals will continue to endorse the liberal order regardless of the balance of power among contending comprehensive doctrines. In this way, political stability is possible under conditions of pluralism. Since only a freestanding liberalism can win an overlapping consensus, only a freestanding liberalism can be stable.

Public reason in freestanding liberalism Rawls realized that politics is not exhausted once an overlapping consensus is achieved: laws must be made, campaigns waged, elections held, votes cast, and cases decided. In these endeavors, too, citizens confront the obstacles to agreement posed by the fact of reasonable pluralism. Hence Rawls proposed a mode of public political discourse in which citizens "conduct their fundamental discussions within the framework of what each regards as a political conception of justice based on values that the others can reasonably be expected to endorse." 30 In public political discussion, then, citizens "should be ready to explain the basis of their actions to one another in terms each could reasonably expect that others might endorse as consistent with their freedom and equality." This means that, as in political justification generally, citizens "are not to appeal to comprehensive religious and philosophi33 cal doctrines" in properly public discussion. Of course, certain questions cannot be understood except in terms of deep philosophical commitment. These will be questions about which we should

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expect citizens to disagree sharply. In light of this, Rawls contends that "a liberal view removes from the political agenda the most divisive issues, serious 34 contention about which must undermine the bases of social cooperation." Democratic deliberation hence applies not to public policy questions generally, but only to what Rawls calls "constitutional essentials" and "questions 35 of basic justice." Hence Rawls identifies the supreme court as the "exem36 plar" of public reason. Citizens holding comprehensive doctrines that compel them to seek a 37 politics based in "the whole truth" who consequently insist upon appealing to nonpublic reasons in public discourse fail to recognize the duty of 38 39 civility, and so fall short of the "ideal of democratic citizenship." More importantly, citizens who reject the idea of public reason in this way are ipso 40 facto unreasonable, and consequently may be dealt with coercively. Rawls writes: "[A] given society may also contain unreasonable, irrational, and even mad, comprehensive doctrines. In their case the problem is to contain 42 them so that they do not undermine the unity and justice of society." As this brief survey shows, public reason places restrictions on the agenda and the vocabulary of democratic deliberation; political liberalism is in this way an 44 instantiation of what Stephen Holmes has called "the politics of omission." For the present purposes, it is important to observe also that public reason 45 aims at an agreement that is nonepistemic. To explain: When operating within public reason, citizens do not aim for outcomes based on the epistemically best reasons, but rather for the outcome that best concurs with the basic judgements and intuitive liberal principles already assumed. That is, public reason takes the basic commitments of a liberal society as "fixed points" and requires—as a condition of reasonableness—that citizens' contributions to public discourse recognize them. In other words, on the Rawlsian view, the reasonablenss of a doctrine or belief is primarily a matter of content rather than justification, and the reasonableness of a person is a matterof which views he holds rather than of the extent to which he supports his views by reasons. In this sense, public reason is an epistemically closed system; no antiliberal position, no matter how tightly argued or well-supported, could be reasonable in a Rawlsian liberal order. In fact, there could be no properly public discussion about the merits of liberalism itself, and no public discussion about the appro48 priateness of public reason as a model of liberal political discourse.

The exclusion objection There is a common line of criticism that attacks public reason for being inherently exclusionary. In an ironic instance of overlapping consensus, the

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"exclusion objection," as we shall call it, is found in the work of theorists who otherwise agree on very little else. For example, radical democrats such as Seyla Benhabib,Nancy Frazer,and Iris Youngargue that since public reason proceeds from a strict delineation of a properly "political" vocabulary, it implicitly privileges the status quo. Public reason therefore comes to nothing more than an apologia for existing power structures that crowd out and silence the voices and concerns of the less powerful.Natural Law theorists Robert George and Christopher Wolfe agree. They claim: "Public reason . . . almost always has the effect of making the liberal position the winner in morally charged political controversies. It does this in effect by ruling out of bounds substantive moral argument on behalf of nonliberal positions." The civic republican Michael Sand el has lamented the "political costs" of public reason, arguing that, "Public reason is too spare to contain the moral energies of a vital democratic life." And the worry is not restricted to antiliberal theorists; liberals, too, have criticized public reason. The liberal William Galston has expressed his concern: "It is difficult to imagine that any liberal democracy can sustain conscientious support if it tells millions of its citizens that they cannot rightly say what they believe as part of democratic public dialogue." The exclusion objection has been met with both a clarification and a qualification. As for clarification, Charles Larmore explains: Rightly conceived, [public reason] does not thwart the uninhibited political discussions which are the mark of vigorous democracy. We can argue with one another about political issues in the name of our different visions of the human good while also recognizing that, when the moment comes for a legally binding decision, we must take our bearings from a common point • 56 oir view. The restrictions of public reason apply only to decision-making contexts, not political discussion generally, hence the requirement that "the most divisive issues" be removed from the public political agenda does not quell discussion among citizens in nonpublic domains. In fact, like Larmore, Rawls affirms that lively debate about controversial issues, conducted by means of nonpublic reasons, is a vital activity within the "background culture" of a liberal democracy. Now for the qualification. In work following Political Liberalism, Rawls introduced "the proviso" as a revision of public reason's vocabulary restrictions. According to the proviso, citizens in properly public discussion may invoke reasons drawn from their comprehensive doctrines provided that they are prepared "in due course" to offer public reasons to supplement the nonpublic ones.

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This rejoinder is not satisfying. Although the exclusion objection is often formulated as to suggest that it is aimed at public reason's agenda and vocabulary restrictions, it should be understood instead to be aimed at the nonepistemic character of public reason. What public reason excludes is not the radical democratic, Thomist, and civic republican positions, but rather the reasons associated with those doctrines. More precisely, public reason cannot recognize a Thomist's reasons as reasons. Accordingly, even an irrefutable proof of the Thomistic doctrine of ensoulment is insufficient to render reasonable a Catholic's public opposition to abortion. Presumably, this is due to the fact of reasonable pluralism, which has it that a logically sound demonstration of x is insufficient for a proof of the falsity of all views inconsistent with x. But why should our Thomist, or anyone else for that matter, endorse such a pluralism? Here, the political liberal must be careful. He cannot offer a philosophical argument for pluralism—to do so would be to violate the very idea of a freestanding liberalism. The question of why one should accept reasonable pluralism is a question to which political liberalism "does not speak." This will strike the Thomist as dishonest and hypocritical; however, to object to the political liberal's silence is to be unreasonable, and thus someone the liberal state must endeavor to "contain." In this way, public reason is epistemicallyexclusionary; regardless of how widely it is construed, public reason cannot acknowledge the epistemic force of the arguments advanced in favor of nonliberal positions, and cannot give reasons why the force of those arguments should be disregarded. Rawls's proviso confirms this: that persons who advance nonpublic reasons in political contexts are bound to supply public reasons "in due course" indicates that nonpublic arguments ultimately can do no justificatory work no matter how epistemically sound they may be. Although public reason may allow everyone a voice, it grants a hearing to only a few. The political liberal will concede this point but question its critical force. He may argue as follows: Citizens who insist on presenting arguments that presume the truth of their own comprehensive doctrines are failing at proper democratic citizenship because they implicitly reject the fact of reasonable pluralism, recognition of which is necessary for the stability of a liberal regime. Thus the insistent Thomist, civic republican, and radical democrat are all destabilizing forces, and surely a liberal democracy, like any regime, should be expected to endeavor to secure its own stability. So whereas it may be the case that public reason cannot duly recognize the epistemic merits of all views, there is no reason why it should be required to do so. This is a cogent reply, but it confronts a difficulty: There is good reason to expect that the nonepistemic character of public reason will generate instability. The argument for this claim draws from some recent work in what we might call "group epistemology," to which we now turn.

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Group polarization Gass Sunstein has called attention recently to the statistical regularity known as group polarization. Group polarization means that "members of a deliberating group predictably move toward a more extreme point in the direction indicated by the members" predeliberation tendencies." The term "extreme" here does not refer to points on a spectrum of opinion; it is rather denned internally, that is, only by reference to persons" doxastic tendencies prior to discussion. Simply put, "like-minded people, after discussions with their peers, tend to end up thinking a more extreme version of what they thought before they started to talk." Citing Sunstein's own examples, consider that, (1) (2) (3)

(4)

A group of moderately profeminist women will become more strongly profeminist after discussion. After discussion, citizens of France become more critical of the United states and its intentions with regard to economic aid. After discussion, whites predisposed to show racial prejudice offer more negative responses to the question of whether white racism is responsible for conditions faced by African-Americans in American cities. After discussion, whites predisposed not to show racial prejudice offer more positive responses to the same question.

Group polarization "has been found all over the world and in many diverse tasks" and does not discriminate along educational, class, ethnic, gender, or political lines; it has been shown to be operative in judicial panels, legislatures, political parties, religious organizations, and civic groups. Moreover, the polarization effect is greatly amplified in cases of "enclave deliberation," which is "that form of deliberation that occurs within more or less insulated groups, in which like-minded people speak mostly to each other over extended periods of time." Group polarization shows that deliberative bodies of like-minded persons are epistemically unstable. The concern here is not the instability as such — change of belief is not necessarily bad. Rather, the danger is that the shifts in belief occur only in one direction and without regard for reasons. That is, when a group polarizes, the members come to adopt increasingly more extreme versions of their former positions, and this movement is not occasioned by the introduction of better arguments. When groups polarize it is because of social dynamic features, not reasons. According to Sunstein, the antidote to polarization is a vibrant "culture of free speech" that prizes or even rewards dissent. Such a culture employs blocks to epistemic insularity and takes positive steps to ensure that citizens are exposed to appropriately rich "argument pools." Sunstein offers several

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interesting policy recommendations designed to counteract polarization; however, we cannot discuss them here.

Public reason, group polarization, and instability That public reason is likely to generate deliberative enclaves should be plain. Citizens are very deeply committed to comprehensive doctrines that conflict with political liberalism on several levels. Citizens of faith present a conspicuous, though not the only, example. Many religious believers hold not only that abortion is a grave moral evil, but also that their opposition to abortion must not be relegated to the "background culture" of society. As Nicholas Wolterstorff has argued, for many liberal democratic citizens, "their religion is not . . . about something other than their social and political existence; it is also about their social and political existence."Interestingly, the situation is not altogether different for the radical democrat, who disagrees with the political liberal not only on substantive issues of justice and equality, but also on the question of the very nature of the political. That is, part of what is at stake in our most central controversies is the "character of public life itself, as well as the meaning and scope of accepted political values."Public reasoncannot countenance a public deliberative space in which these fundamental issues can be reasonably engaged; it must "put the 'values' of public reason beyond political contestation."That is, public reason must generateepistemically excluded groups. Consider now the predicament of those persons that political liberalism epistemically excludes: Believing, correctly, that there is no point in raising their arguments in public, they will likely form small groups devoted to the advancement of their position; these groups will meet regularly to discuss the group's views and devise strategies for disseminating their message. Conditions will be ripe for polarization. As the groups polarize, individuals will not only come to hold more extreme versions of their initial position, but will come to see themselves as excluded, victimized, and oppressed; naturally, they will also grow increasingly dismissive of opposing views, and will regard those that affirm them as either evil or benighted. In this way, polarized groups are also epistemically crippled;that is, they grow increasingly unable and unwilling to engage in reasoned discussion with those with whom they disagree. Fanaticism will set in, the overlapping consensus will give way to a modus vivendi, and hence precisely the kind of instability Rawls sought to avoid will resul t. More importantly, a different kind of instability is likely to emerge, namely, the kind associated with hatred and violenc e. It may be objected that I have been merely speculating. However, if it will be granted that certain regions of our public political discourse closely

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approximate the model of public reason, it can be shown that my speculations about epistemic exclusion are not implausible. Carol Swain has recently published an alarming study of what she calls the "new'' white nationalist movement in contemporary America. Swain's analyses are based on interviews conducted with ten prominent white nationalists; the transcripts of these interviews are available in a book edited by Swain and Russ Nieli. An examination of the strikingly similar narratives offered by the white nationalists reveals the pattern described above. For example, both William Pierce, the recently deceased founder of the neo-Nazi National Alliance and author of the infamous novel that inspired Timothy McVeigh to terrorism, and Lisa Turner, the Women's Information Coordinator of the white supremacist World Church of the Creator, claim to have been motivated by what they perceived to be a systematic refusal on the part of mainstream society to engage their ideas. It is important to note that the complaint is not that people were not convinced of their positions, but rather that the public space of political reason giving was closed to them; hence they characterize mainstream white America not as mistaken about race, but as "brainwashed," "conditioned," and "propagandized." They thus were forced to "build" their own "infrastructure" for disseminating their ideas. They both point to the Internet as the most effective recruitment tool. Perhaps not surprisingly, Sunstein has shown that, insofar as it enables individuals to pre-select and filter the information to which they will be exposed, the Internet is a powerful source of polarization. Swain explicitly draws the connection I have suggested between epistemic exclusion and group polarization: Sunstein's analysis [of group polarization] seems to describe something clearly at work among many of the white nationalist leaders interviewed ... I believe that one reason why many of the members and potential members of their organizations have such little exposure to alternative viewpoints is because of the overall feebleness and lack of honesty that currently dominates discussion about controversial racial issues in America. Believing that America is "increasingly at risk of a large-scale racial conflict," Swain makes a recommendation similar to Sunstein's: "What is most needed now ... is for white nationalists to be heard and debated in mainstream forums where their data and ideas can be openly evaluated and subjected to critical assessment." Despite the maneuvers designed to loosen the agenda and vocabulary restrictions of public reason, its nonepistemic character means that the kind of debate called for by Swain is not possible within political liberalism. Nor are public debates concerning a wide array of other controversial moral issues. Stating Swain's and Sunstein's point more generally, Sandel observes:

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Where political discourse lacks moral resonance, the yearning for a public life oflarger meanings finds undesirable expressions. Groups like the "moral majority" and the Christian right seek to clothe the naked public square with narrow, intolerant moralisms. Fundamentalists rush in where liberals fear to tread. To summarize: In the name of pluralism and the "absolute depth" of the "latent conflict" between citizen's comprehensive doctrines, political liberalism devises for the sake of stability a politics lacking wholly in political contestation. But as I hope to have shown, a politics without contestation is an epistemically unstable politics, and an epistemically unstable politics is not only politically unstable in Rawls's sense, but also dangerously volatile.

A proposal sketched: deliberative agonism A decade ago, John Rawls taught us to place the following question at the heart of our political theorizing: Is it possible for persons divided at fundamental levels to nonetheless reach a stable consensus on a single conception of political justice, and, if so, how? Today Rawls's question confronts us not merely as philosophers, but as citizens. I have argued that the answer provided by Rawls is insufficient; however, I accept Rawls's arguments that a traditional liberalism is nonviable and a modus Vivendi is unstable. There must be some additional option for democratic politics. Although there is little space left to fashion a positive alternative in any detail, I shall sketch an approach that I call "deliberative agonism." Like political liberalism, deliberative agonism acknowledges the fact of reasonable pluralism and so rejects traditional modes of liberal theorizing. The deliberative agonist agrees further with the political liberal that "to justify the exercise of collective political power is to proceed on the basis of a free public reasoning among equals," and so is committed to a model of democracy that is deliberative or reason-based rather than aggregative or preference-based. However, contra the political liberal, the agonist does not begin from a distinction between the "reasonable" and the "unreasonable," and so does not circumscribe a "special domain of the political" that is cleansed of controversy, and moreover does not stipulate a special mode of "public" reasoning. Instead, the deliberative agonist endorses an epistemic view of political discourse and a "decentered" conception of the political that countenances multiple and interrelated civic spheres as sites of fully public dialogue. Consequently, the deliberative agonist rejects the idea underlying political liberalism that a stable politics can proceed only from a consensus on basic principles. Instead, the deliberative agonist begins from the very justificatory

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practices of reason-giving that make disagreement, objection, dissent, and contestation possible. Hence I follow Claude Lefort in envisioning a democratic politics "founded upon the legitimacy of a debate as to what is legitimate and what is illegitimate."Such a politics "requires a real debate about possible alternatives,"and so cannot begin from consensus, overlapping or otherwise, at the level of "substantive beliefs" but rather must work at the epistemic level of "procedures, processes, and practices for attaining and revising beliefs." The aim of such deliberation is not the implausible one of total consensus, but rather outcomes that are sufficiently based in processes of collective reasoning to motivate even those who disagree with them to continue to participate. In this way, the processes of political deliberation are ongoing; they aim not to overcome conflict, but rather to preserve the conditions under which "agonistic confrontation among adversaries" may continue without devolving into an "antagonistic struggle between enemies." To be sure, I have not claimed that ongoing deliberative processes are guarantors of stability, progress, or justice. Nor do I pretend that practices of reason-giving are necessarily free of ideological distortions and structural inequalities.However, it is a virtue of the epistemic conception of deliberation that it can be self-reflexive and thus self-critical. Moreover, though it is epistemic insofar as it aspires to be reason-sensitive, the deliberative agonism I have sketched does not entail any particular epistemology; it is committed only to what Wilfrid Sellars characterized as "the logical space of giving reasons." The self-reflexive and epistemologically mimimalist conception of deliberation I have proposed, then, offers to us the chance of retrieving errors, repairing injustice, exposing sites of illegitimate power, and challenging received conceptualizations of all of those terms. To be sure, a deliberative agonism may in the end fare no better than political liberalism, for it too will have to confront group polarization and other challenges. Alas, to paraphrase Isaiah Berlin, there can be no politics without risk. Thus, if the foregoing arguments are correct, our choice is not between a risky agonism and a secure political liberalism, but rather between a politics prepared to recognize its risks and one whose hazards include those generated by its own delusions.

Notes 1. James Bohman, Public Deliberation (Cambridge, MA: MIT Press, 1996), 73. 2. PL, 135. 3. Rawls's pluralism is epistemic because it is genera ted by what he calls "the burdens ofjudgment." (PL, 54—58) It is important to distinguish Rawls's pluralism from

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the recent neo-Berlinian varieties offered in John Gray, Two Faces of Liberalism (New York: The New Press, 2001) and William Galston, Liberal Pluralism (Cambridge, UK: Cambridge University Press, 2002), which are robustly metaphysical and thus not of the sort Rawls could endorse. There are questions concerning the cogency of Rawls's pluralism that cannot be taken up here, but see my "Rawls on Pluralism and Stability," Critical Review 15 (2003), 173-94. 4. Jeremy Waldron, "Theoretical Foundations of Liberalism," in his Liberal Rights (Cambridge, UK: Cambridge University Press, 1993), 37. 5. Note the "fact of oppression," according to which "a continuing shared understanding on one comprehensive religious, philosophical, or moral doctrine can be maintained only be the oppressive use of state power." (PL, 37) From this it follows that all traditional liberalisms would require oppression, and are therefore self-defeating. 6. 7. 8. 9.

PL, 10. Ibid., 8. Ibid., 10. Ibid., 8.

10. Ibid., 124. 11. John Rawls, "Justice as Fairness: Political Not Metaphysical," reprinted in CP, 388-414. 12. Jean Hampton, "Should Political Philosophy be Done Without Metaphysics?", Ethics W (1989), 791-814. 13. Ronald Dworkin, "Foundations of Liberal Equality," in Stephen Darwall (ed.), Equal Freedom (Ann Arbor: University of Michigan Press, 1995), 190—306. 14. Samuel Schefner, "The Appeal of Political Liberalism," in his Boundaries and Allegiances (New York: Oxford University Press), 131—48. 15. Dworkin, "Foundations of Liberal Equality," 192. Cf. Brian Barry in Culture and Equality (Cambridge, MA: Harvard University Press, 2001), 331n.27: "Rawls has by now abandoned most of the ideas that made A Theory of Justice worthwhile." 16. Rawls, "Justice as Fairness," 395. 17. PL, 8. 18. See David Estlund, "The Insularity of the Reasonable: Why Political Liberalism Must Admit the Truth," Ethics 108 (1998), 252-75; Chantal Mouffe, The Democratic Paradox (New York: Verso, 2000), 24; and Seyla Benhabib, The Claims of Culture (Princeton: Princeton University Press, 2002), 111. In Democracy's Discontent (Cambridge, MA: Harvard University Press, 1996), Michael Sand el produces a fully consistent civic republican reading of the principles and intuitions underlying our institutions. 19. My argument shall engage primarily the account of public reason given in Rawls's Political Liberalism. To be sure, most of Rawls's later career was devoted to clarifying the doctrine of public reason. (See John Rawls "Commonweal Interview," reprinted in CP, 616-22; PRR reprinted in CP, 573-615; and JF, 89ff.) I shall have occasion to discuss these later developments; however, I contend that the fundamental core of the view remained unchanged.

Dilemmas of public reason: pluralism, polarization, and instability 20. 21. 22. 23. 24.

25. 26. 27.

28. 29. 30. 31. 32. 33.

34. 35.

36.

37. 38. 39. 40. 41.

42.

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Thomas Nagel, "Moral Conflict and Political Legitimacy," Philosophy and Public Affairsl6(1987), 215-40. Bruce Ackerman, "Why Dialogue?" Journal of Philosophy 86 (1989), 16-27. Stephen Holmes, "Gag Rules or the Politics of Omission," in his Passions and Constraint (Chicago: Chicago University Press, 1995), 202-35. Charles Larmore, The Morals of Modernity (Cambridge, UK: Cambridge University Press, 1996). Joshua Cohen, "Procedure and Substance in Deliberative Democracy," injames Bohman and William Rehg (eds), Deliberative Democracy (Cambridge, MA: MIT Press, 1997), 407-38. Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996). JiirgenHabermas, Between Facts and Norms (Cambridge, MA: MIT Press, 1996). Karl-Otto Apel, "The A Priori of the Communication Community and the Foundations of Ethics," in his Towards a Transformation of Philosophy (London: Routledge, 1980). PL, 142. Ibid., 148. Ibid., 226. Ibid., 218. Ibid., 225. Ibid., 224. It is worth noting further that Rawls takes this restriction to apply to citizens' voting as well; they must not decide how to cast their votes by appeal to their comprehensive doctrines. (On this see PL, 215.) Ibid., 157. Ibid., 214. Rawls continues, "This means that political values alone are to settle such fundamental questions as who has the right to vote, or what religions are to be tolerated, or who is to be assured fair equality of opportunity, or to hold property. These and similar questions are the special subject of public reason." PL, 216. Thus, "To check whether we are following public reason we might ask: how would our argument strike us presented in the form of a supreme court opinion? Reasonable? Outrageous?" (PL, 254) PL, 243. Ibid., 217. Ibid., 98. As I note below, Rawls later qualified this claim with "the proviso." (PRR, 584) PL, 59. "It is unreasonable for us to use political power . . . to repress comprehensive doctrines that are not unreasonable." (PL, 61) Hence it may be fully reasonable in some cases to use political power to repress unreasonable comprehensive doctrines. PL, xvi. Cf. "That there are doctrines that reject one or more democratic freedoms is itself a permanent fact of life, or seems so. This gives us the practical task of containing them—like war and disease—so that they do not overturn political justice." (PL, 64n.l9)

120 43. 44. 45.

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Benhabib, Claims of Culture, 108. Holmes, "Gag Rules," 202ff. Rawls explicitly claims that justification is a "practical" and not an "epistemological" problem. (PL, 44) 46. There is a fascinating literature examining whether public reason is capable of producing determinate outcomes on questions of basic justice; see especially David Reidy, "Rawls's Wide View of Public Reason: Not Wide Enough," Res Pubhca 6 (2000), 49-72. 47. PL, 124. 48. Cf. Bohman, Public Deliberation, 86. According to Rawls, the basic liberal principles "meet the urgent political requirement to fix, once and for all, the content of certain political basic rights and liberties, and to assign them special priority. Doing this takes those guarantees off the political agenda." (PL, 161) 49. Seyla Benhabib, "Toward a Deliberative Model of Democratic Legitimacy," in her (ed.) Democracy and Difference (Princeton: Princeton University Press, 1996), 67-94. 50. Nancy Frazer, "Rethinking the Public Sphere," in Craig Calhoun (ed.), Habermas and the Public Sphere (Cambridge, MA: MIT Press, 1992), 122-36. 51. Iris Marion Young, Inclusion and Democracy (New York: Oxford University Press), 36ff. See also Young, "Activist Challenges to Deliberative Democracy," injames Fishkin and Peter Laslett (eds), Debating Deliberative Democracy (Oxford, UK: Blackwell, 2003), 102-20. 52. See Lynn Sanders, "Against Deliberation," Political Theory 25 (1997), 347—76; and Brooke Ackerly, Political Theory and Feminist Social Criticism (Cambridge, UK: Cambridge University Press, 2000), 52f. 53. Robert George and Christopher Wolfe, "Introduction," in Robert George and Christopher Wolfe (eds), Natural Law and Public Reason (Washington, DC: Georgetown University Press, 2000), 2. Cf. Stanley Fish, "Mutual Respect as a Device of Exclusion," in Stephen Macedo (ed.), Deliberative Politics (New York: Oxford University Press, 1999), 91. Consider the infamous footnote in which Rawls claims that any comprehensive doctrine that would reject a woman's "duly qualified right" to abortion "in the first trimester" is "to that extent unreasonable"; he further contends that "we would go against the ideal of public reason if we voted from a comprehensive doctrine that denied this right." (PL, 243n.32) 54. Michael Sandel, Liberalism and the Limits of Justice, second edn (Cambridge, UK: Cambridge University Press, 1998), 217. 55. William Galston, "Diversity, Toleration, and Deliberative Democracy," in Macedo (ed.), Deliberative Politics, 43. 56. Charles Larmore, "Public Reason," in Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge, UK: Cambridge University Press, 2003), 383. 57. PL, 157. 58. Ibid., 220. 59. Ibid.,\i;PRR, 591. 60. PAR, 591.

Dilemmas of public reason: pluralism, polarization, and instability 61. 62.

63.

64.

65.

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The adequacy of the proviso is disputed. Even Larmore, himself a political liberal, rejects it; see his "Public Reason," 386. See, for example, Joshua Cohen's "Democracy and Liberty," in Jon Elster (ed.), Deliberative Democracy (Cambridge, UK: Cambridge University Press, 1998), 185—231. In particular, see Cohen's discussion of the Papal encyclical Evangelium Vitae, in which an anti-abortion argument is presented that claims to be independent of any specifically religious claims. Cohen asserts, without argument, that the Pope appeals to a "conception of reason" that is "itself sectarian." (Cohen, "Democracy and Liberty," 196) Contrast the philosophically robust pluralisms developed in Gray's Two Faces of Liberalism and Galston's Liberal Pluralism', both theorists criticize Rawls on this point. Rawls is defended against Gray's criticism in my "Two-Faced Liberalism," Critical Review 14 (2002), 441—58; and Galston is criticized in my "Can Value Pluralists be Comprehensive Liberals?" Contemporary Political Theory 3 (2004), 127-39. See also Galston, "Liberal Pluralism: A Reply to Talisse," Contemporary Political Theory 3 (2004), 140-7. PL, 128. The political liberal must take a vow of "epistemic abstinence" even about the epistemic value of his own commitments. On this, see Joseph Raz, "Facing Diversity: The Case of Epistemic Abstinence," in his Ethics in the Public Domain (New York: Oxford University Press, 1994), 60-96 and Estlund, "The Insularity of the Reasonable." PL, xiv. See Stout, Democracy and Tradition (Princeton: Princeton University Press), 76, who claims that: One message being preached nowadays in many of the institutions where future preachers are being trained is that liberal democracy is essentially hypocritical when it purports to value free religious expression . . . Over the next several decades this message will be preached in countless sermons throughout the heartland of the nation.

66. 67. 68. 69. 70. 71. 72. 73. 74.

Cf. Lucas Swaine, "A Liberalism of Conscience," Journal of Political Philosophy 11 (2003), 369-91. "The zeal to embody the whole truth in politics is incompatible with an idea of public reason that belongs with democratic citizenship." (PRR, 574) Cf. Robert Goodin, Reflective Democracy (New York: Oxford University Press, 2003), 178. Cass Sunstein, "The Law of Group Polarization," in Fishkin and Laslett (eds), Debating Deliberative Democracy, 81. Cass Sunstein, Why Societies Meed Dissent (Cambridge, MA: Harvard University Press, 2003), 112. Cass Sunstein, Designing Democracy (New York: Oxford University Press, 2001), 23. Sunstein, "The Law of Group Polarization," 82. Sunstein, Why Societies Need Dissent, 111. Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), 75—6. Sunstein, Why Societies Need Dissent, 112.

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75. 76.

Sunstein, "The Law of Group Polarization," 84. Nicholas Wolterstorff, "The Role of Religion in Decision and Discussion of Political Issues," in R. Audi and N. Wolterstorff, Religion in the Public Square (Maryland: Rowmanand Littlefield, 1997), 91. 77. Bohman, Public Deliberation, 86. 78. Ibid. 79. Russell Hardin, "The Crippled Epistemology of Extremism," in Albert Breton (ed.), Political Extremism and Rationality (Cambridge, UK: Cambridge University Press, 2002), 1-34. 80. Hence Hardin: Winston Churchill reputedly quipped that fanatics are people who cannot change their minds and will not change the subject. He got their epistemology just right in his first point. But perhaps he got them wrong in his second point. It is not so much that they will not change the subject. Rather, they cannot change it, because they have no other subject. That is the nature of their crippled epistemology, without which they would not be fanatics. (Hardin, "The Crippled Epistemology of Extremism," 21) 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96.

Sunstein, Why Societies Meed Dissent, 12. On this, see Sandel, Liberalism and the Limits of Justice, 216. Carol Swain, The New White Nationalism in America (Cambridge, UK: Cambridge University Press, 2002). Carol Swain and Russ Nieli (eds), Contemporary Voices of White Nationalism in America (Cambridge, UK: Cambridge University Press, 2003). Swain and Nieli, Contemporary Voices of White Nationalism in America, 258, 264. Ibid., 261. Cf. Carol Mason, KillingforLife(Ithaca, NY: Cornell University Press, 2003). Swain and Nieli, Contemporary Voices, 250, 266. Sunstein, Republic.com. Carol Swain, The New White Nationalism in America, 10. Ibid., 423. Ibid.,35. Sandel, Liberalism and the Limits of Justice, 217. PL, xxvi. A more detailed presentation can be found in my Democracy After Liberalism (New York: Routledge, 2005). Joshua Cohen, "Procedure and Substance in Deliberative Democracy," 412. Deliberative democracy is often contrasted with aggregative models. See Bernard Manin, "On Legitimacy and Political Deliberation," Political Theory 15 (1987), 338—68; Benhabib, "Toward a Deliberative Model"; John Dryzek, Deliberative Democracy and Beyond (New York: Oxford University Press, 2000), Ch. 1; James Bohman, "The Coming of Age of Deliberative Democracy," Journal of Political Philosophy 6 (1998), 400—25; Samuel Freeman, "Deliberative Democracy: A Sympathetic Comment," Philosophy and Public Affairs 29 (2000), 371-418; Iris Marion Young, Inclusion and Democracy, Ch. 1; and Jack Knight and James

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97. 98. 99.

100. 101. 102. 103. 104.

105.

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Johnson, "Aggregation and Deliberation: On the Possibility of Democratic Legitimacy," Political Theory22 (1994), 277-96. PL, 139. Habermas, Between Facts and Norms, 298. Claude Lefort, Democracy and Political Theory(Minneapolis: University of Minnesota Press, 1988). Mouffe, The Paradox of Democracy, 113. Benhabib, "Toward a Deliberative Model," 73. Bohman, Public Deliberation, 33. Mouffe, The Democratic Paradox, 117. See Jiirgen Habermas, "On Systematically Distorted Communication," Inquiry 13 (1970), 205—18; and Young, "Activist Challenges." These issues are taken up in my "Deliberativist Responses to Activist Challenges," Philosophy and Social Criticism, forthcoming. The author would like to thank the Center for Ethics and Public Affairs of the Murphy Institute of Political Economy at Tulane University for its generous support during the completion of this work.

7

Public reason and religion James Boettcher

The long-standing question of the relationship between religion and liberalism remains fiercely disputed. A popular book of the 1990s suggests that contemporary liberal philosophy is one of the social forces in the United States, encouraging the trivialization of religion and a corresponding "culture of disbelief." Stephen Garter writes that: "Today's political philosophers see public dialogue as essentially secular, bounded by requirements of rationality and reason. It is not easy to fit religion into that universe, which is why some religiously devout people find themselves at war with the dominant trends in contemporary philosophy." Of course, the dominant trends in contemporary political philosophy have for decades been shaped directly by the work of John Rawls. The publication of Political Liberalism coincided with—and certainly also helped to sustain—a growing interest among both legal theorists and philosophers in the question of the role of religion in the public sphere. Yet, while Rawls's own political turn over the course of the 1980s seems to have been inspired mainly by his recognition of the importance of religious and philosophical pluralism, Political Liberalism, with its central ideal of public reasoning, has been criticized extensively for misunderstanding the proper relationship between religion and liberal-democratic citizenship. In the so-called "war" between religion and contemporary philosophy, it would seem that some of the principal battles are being fought over Rawls's work and the controversy it has engendered. It is not the aim of the present chapter to contribute to any battles, as I hope that the metaphor of a cultural or intellectual "war" turns out to be misplaced. One of the goals of the chapter is to show instead that Rawlsian public reasoning is consistent with much reasonable religious belief and practice. But, as the controversy surrounding the infamous "abortion footnote" to Political Liberalism illustrates, Rawls is partially to blame for much of the misunderstanding of and widespread suspicion about the idea of public reason. The claims of that footnote seem to rely on a narrow and exclusionist interpretation of public reasoning which Rawls ultimately rejects. They also seem to be based on the incorrect assumption that an idea of public reason can somehow generate the correct answers to contested political questions, circumventing actual public political debate.

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Nor is understanding the idea of public reason made easier by the fact that the idea's exposition in Lecture VI of Political Liberalism does not include the more convincing "wide view" of public reasoning advanced by Rawls in subsequent writings. Only in the book's second "Introduction," and with the wisdom of hindsight, does Rawls acknowledge that with its main philosophical question political liberalism reaches out specifically to religious believers. But even Rawls's most direct engagement with religion in "The Idea of Public Reason Revisited" fails to respond adequately to many of the difficult questions posed by critics. Does the idea of public reason demand too much of religious believers? Does it compromise the integrity of their faith commitments? Are the requirements of public reasoning feasible for religious believers? Are these requirements fair? Would they have adverse consequences for the public political deliberation of a liberal-democratic society marked by deep and pervasive religious conviction? These are just some of the questions that have been raised over the last two decades in what has become a rather sizable body of literature on liberalism, religion, and the public sphere. In reviewing this literature along with the relevant critical discussions of political liberalism, I shall specifically investigate the relationship between religion and Rawlsian public reasoning, guided by the aim of reconciling religious believers to public reason's ideal. I begin by presenting a wide interpretation of Rawls's wide view of public reason which speaks directly to the role of religious discourse and argument in political decision-making (the first two sections). A suitable interpretation of the idea public reason must explain the ways in which this idea both encourages citizens and officials to present and discuss publicly their religious views and instructs citizens and officials sometimes to restrain their appeal to their religious views in accepting and advancing political justifications. I then turn to three main varieties of criticism which are motivated by religious concerns and which generally target liberal interpretations of political justification and citizenship (third section). Jointly these criticisms suggest that restraints on religious discourse and argument are infeasible, unfair, and politically disadvantageous. However, with respect to Rawls's wide view of public reason, I maintain that these objections miss the mark. Finally, I examine briefly additional criticisms of Rawls's view, also motivated by religious concerns, which raise specific questions about the determinacy of public reasoning and the grounds of public reason's status as a moral duty of citizenship (fourth section). These criticisms, I suggest, call for further clarification and elaboration of the conceptual structure of political liberalism. Although I do not address all of the concerns about public reasoning that might be raised by religiously minded critics, I hope to show that the idea of public reason is less restrictive than many critics have supposed, and that the forms of restraint that it does require of citizens and officials are neither infeasible nor unfair.

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The idea of public reason Public reason, in the most general sense, refers to the publicly accessible reasoning and deliberation of democratic citizens and officials concerning justice and the common good of their society. As a special duty of citizenship, Rawls's "idea of public reason" has a more definite structure, concerning when, how, and to whom it applies. When fundamental political questions are at stake, all political officials and, ideally, all citizens as well are morally obligated to turn to the values of a reasonable political conception of justice as the basis of their political decision-making. A reasonable political conception of justice applies only to the basic structure of society and aims at securing fair terms of cooperation for all persons as free and equal citizens. And it should be possible to articulate and present a reasonable political conception independently of the comprehensive religious or philosophical doctrines in which it may be morally embedded. In addition to relying on a reasonable political conception, citizens and officials are prepared to justify their decisions to one another in public reason by satisfying what Rawls refers to as the liberal principle of legitimacy based on the criterion of reciprocity. According to this principle, "[o]ur exercise of political power is proper only when we sincerely believe that the reasons we would offer for our political actions—were we to state them as government officials—are sufficient, and we also reasonably think that other citizens might reasonably accept those reasons." As an ideal of citizenship, then, the idea of public reason requires that citizens and officials both search for adequate political justifications and sometimes restrain their appeal to certain doctrinaljustifications for the exercise of coercive power. These requirements apply both to the political choices of citizens and officials, and to the public presentation of arguments justifying those choices. Ideally all citizens and officials should be at least ready to explain how their political choices are supported by suitable political justifications in public reason. But the idea of public reason is not intended to govern all questions or deliberative settings. It applies neither to political society's "background culture" of churches, clubs, associations, professional societies, and the like, nor to the forms of media which stand between this culture and the official "public political forum'' of legislatures, courts, offices, campaigns, and voting booths. And within the public political forum, the requirements of public reason apply, strictly speaking, only to fundamental political questions, i.e. constitutional essentials and matters of basic justice. In short, the idea of public reason governs both the decisions and the justificatory discourse of citizens and officials in their attempt to work out the fundamental terms of their political association through voting, campaigning, and official political decision-making. The content of public reason consists primarily of the values associated with a political conception of justice, along with guidelines of inquiry and

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judgement. A complete analysis of public reason's content would be beyond the scope of the present chapter, but a few remarks may be helpful before turning to the relationship between public reason and religion. First, in contrast to the ideal of political justification worked out by Robert Audi, Rawlsian public reason is not equivalent to a standard of secular reason that would admit non-religious comprehensive justifications where religious justifications are inadmissible.Rawls defines secular and religious reasoning as forms of "comprehensive," or "nonpublic," reasoning which should be distinguished from the public reasoning associated with a political conception of justice. Unlike a political conception, a comprehensive doctrine, as an exercise of both theoretical and practical reason, applies to the whole of a person's life, and specifies virtues, obligations, and ideals that transcend the domain of the political. Second, the content of public reason is not restricted to Rawls's own conception of justice, "justice as fairness." To be sure, each citizen is expected to endorse a coherent and complete political conception, and to avoid insincere, ad hoc appeals to contradictory claims or competing interpretations of what justice demands. But, from the general standpoint of political liberalism and the citizenry at large, the content of public reason is not constituted by a single political conception of justice. A related point is that the idea of public reason is not intended to bypass the process of political deliberation and judgement by supplying ready-made answers to difficult political questions. A political conception of justice should be capable of ordering values in such a way that pressing political issues may be addressed. But, insofar as citizens are expected to hold different conceptions of justice, there is no authoritative canon of reasons and arguments that, once they are articulated by the theorist, would render additional political debate and discussion unnecessary. Likewise, public reason does not present &populistconception of political justification that would require a citizen to adopt and present only those arguments that would in fact be endorsed by all other citizens. Rather, the idea of public reason instructs each citizen to seek agreement by identifying first-person political justifications that satisfy the criterion of reciprocity and address others as reasonable. But, from the third-person standpoint of citizens generally, the results of public reasoning are often inconclusive, and a citizen should expect to encounter disagreement with other sincere and reasonable citizens.

Public reason and religion: the wide view Even in this very brief exposition of the idea of public reason, I have already referred to "restraints" on public argument and to the idea that certain claims and arguments may be classified as "inadmissible." This kind of language may

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be misleading inasmuch as it suggests that citizens are obligated to keep most or all comprehensive (i.e. "nonpublic") discourse and argument out of the public political forum. Public reason should not be interpreted, however, as an exclusionist principle according to which only public reasons are admissible in the political forum. Rather, as I see it, the idea of public reason serves as a restraint on discourse and argument only in the following sense: Claims and arguments that are based on nonpublic reasons fail to serve as adequate political justifications, and, absent supporting public reasons, should not be adopted or presented as justifications for decisions concerning constitutional essentials and matters of basic justice. That such arguments are, absent supporting public reasons, insufficient as political justifications on fundamental political questions, however, does not mean that they are insignificant, irrelevant, or publicly inadmissible. At no point does Rawls endorse a conception of public reasoning that would exclude all nonpublic discourse and argument from the process of political decision-making. While Rawls seems to have been drawn initially to an exclusionist position, the first edition of Political Liberalism offers by contrast the socalled "inclusive view" of public reason. The inclusive view, influenced in part by Lawrence Solum, would admit nonpublic reasons, even in the public political forum, under certain historical and socio-political conditions. But this view is subsequently abandoned by Rawls in favor of an even more "permissive" position, namely, the "wide view" of public reason. The main feature of the wide view is its proviso concerning the introduction of the nonpublic discourse and argument of comprehensive doctrines into political decisionmaking. According to the proviso: [RJeasonable comprehensive doctrines, religious or nonreligious, may be introduced in public political discussion at any time, provided that in due course proper political reasons—and not reasons given solely by comprehensive doctrines—are presented that are sufficient to support whatever the comprehensive doctrines introduced are said to support. Examining a few questions about the proviso will enable us to understand the ways in which a wide interpretation of Rawls's wide view of public reason might accommodate religious citizens. First, the proviso suggests that comprehensive doctrines may inform political decision-making as long as supporting public reasons accompany them. A related but logically distinct question is whether citizens must always advance public reasons any time they introduce their comprehensive doctrines in the public political forum. All comprehensive discourse and argument that meets the proviso is publicly admissible. But must all comprehensive discourse and argument in the public political forum meet the proviso? Should the proviso be interpreted as allowing comprehensive

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discourse and argument in the public political forum only ?f supporting public reasons are also presented? I submit that it should not be interpreted in this fashion. The proviso requires the presentation of public reasons insofar as comprehensive reasons are presented in support of some position or decision about a fundamental issue. As I see it, the proviso's notion of "support" is best understood to mean that all adequate politicaljustificationsmust always include a justification within the domain of public reason. If a citizen adopts or presents religious or other nonpublic reasons as considerations that count toward the justification of her position on a fundamental issue, she is obligated also to identify (and sometimes present) a sufficient argument for that position in public reason; otherwise she should exercise restraint by not appealing to her comprehensive doctrine for justificatory purposes. Of course, in much political argument, and certainly in cases of constitutional argument, the proviso willtypically admit nonpublic reasons only if supporting public reasons are provided. However, as Robert Audi has observed, even our discourse in the public political forum is not necessarily limited to justificatory or evidential purposes. A citizen might introduce a religious doctrine simply in order to express her background perspective or depth of conviction on a particular issue. As long as this expression is not intended as a reason or argument that counts toward the justification of a position or decision on a fundamental political question, the strict terms of the proviso need not apply. A second set of questions, raised by Rawls, concern the specific details of satisfying the proviso. How should comprehensive doctrines be expressed in the public political forum? When exactly should citizens satisfy the proviso? How quickly must they do so after the introduction of their comprehensive doctrines? Are all persons equally obligated by the proviso? One possibility for honoring the proviso would involve some citizens or officials serving as proxies or spokespersons for others. Is this sort of representation allowed by the proviso? Without definitively answering these questions, Rawls simply suggests that the norms governing the proviso should enable us to understand that it is satisfied in good faith: The details of how to satisfy the proviso "must be worked out in practice" and depend on "the nature of the public political culture" and the "good sense and understanding" of its citizens. What does it mean to exercise good sense and understanding in this context? In attempting to satisfy the proviso, citizens are guided by their disposition to be reasonable and their desire to be recognized by others as reasonable. A reasonable citizen seeks fair terms of political cooperation, treats others as free and equal and as interested in exercising basic moral powers, and acknowledges what Rawls calls the burdens of judgement, or the idea that sincere and reliable reasoners are apt to disagree about how to resolve complex and difficult issues. The aspiration to be recognized as reasonable motivates

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citizens to reason and act in a manner that reassures others of their good faith effort to offer public reasons for their political choices. This attempt on the part of citizens to reassure one another of their reasonableness leads to a final question. Does political liberalism actually encourage the introduction of religious and other nonpublic reasoning in the public political forum? Rawls addresses this question only briefly, suggesting that there may be "positive reasons" for introducing comprehensive doctrines into political debate. The common assumption among many critics of political liberalism, based perhaps on some of Rawls's own remarks, is that the idea of public reason at best seeks merely to tolerate religious discourse and argument. As I see it, however, there is a strong case to be made within political liberalism for encouraging the public presentation of certain forms of religious discourse and argument. This case turns on what we might call the transparency problem. The idea of public reason asks citizens to aim at agreement about fundamental political questions, but not to expect it. Specifically, the criterion of reciprocity requires each citizen to search for political justifications that others might reasonably accept, while the Rawlsian burdens of judgement instruct citizens to expect that others may very well interpret evidence or fundamental political values in different ways and arrive at competing answers to complex questions. Citizens are to advance political justifications that they believe to be sound and most reasonable, and which they believe that others, who are also disposed to seek fair terms of cooperation among free and equal citizens, can accept as at least reasonable, that is, as at least consistent with political liberalism's underlying conceptions of the person, society, and judgement.21 The hope is that citizens can recognize and appreciate competing claims and arguments as at least reasonable, despite their ongoing disagreement about which conception ofjustice is valid or what precisely justice requires of basic social institutions. But just how are they to do that? One of the ways in which a citizen can recognize other citizens, along with the claims and arguments of other citizens, as reasonable is to learn more about the conceptions ofjustice and comprehensive doctrines that support and motivate those claims and arguments. By asking how another citizen's conception ofjustice leads to a different conclusion on a particular matter of law or policy, a citizen is able to achieve a kind of critical distance from her own political judgements and a better understanding of how others might reasonably disagree with her. She is better able to appreciate how another citizen's conception ofjustice offers an interpretation of political liberalism's basic commitment to fair terms of cooperation among free and equal citizens. The political virtues at stake in many cases of disagreement—civic engagement, toleration, self-criticism, and fair-mindedness—are also exercised when a citizen sincerely attempts to understand how another citizen's

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comprehensive doctrine supports a reasonable political conception of justice. Good citizens should not only remain aware of religious diversity, but also make an effort to understand different religious traditions and imagine how various questions might be approached from within these traditions. In "The Idea of Public Reason Revisited," Rawls has identified different forms of nonpublic discourse that would enable citizens, even in the public political forum, to examine and discuss the relationship between their political judgements, competing conceptions of justice and religious and philosophical comprehensive doctrines. In declaration, citizens might explain their comprehensive views to one another in order to demonstrate how these views support reasonable political conceptions of justice. In conjecture, citizens begin with claims that they believe others to accept, and attempt to show how these claims support a particular conclusion on questions of law or policy. In witnessing, citizens introduce their comprehensive views in order to explain the basis and depth of their dissent, including their religiously motivated dissent, from a legitimately enacted decision. Through declaration, conjecture, and witnessing, and perhaps through other forms of comprehensive discourse and argument as well, citizens attempt to learn from one another about the political implications of their religious views. They also attempt to reassure others, with whom they disagree on particular matters of law or policy, of their shared commitment to reasonable political conceptions of justice. Thus, according to a wide interpretation of Rawls's wide view, religious citizens are not just permitted but even encouraged to present their comprehensive views. This presentation might involve, though it is certainly not limited to, non-justificatory religious conversations, religious justifications that meet the proviso, declarations of faith that express the depth of a citizen's political convictions or the urgency of some matter of basic justice, conjectures about how a political question might be understood within another citizen's particular religious tradition, and political dissent through witnessing. These forms of discourse and argument amount to more than mere tolerance or agreeing to disagree, but to less than a political contest over the correct doctrinal solution to shared political problems. Citizens can engage one another in a spirit of "intellectual solidarity" and "ecumenical political dialogue," while continuing to satisfy the proviso and recognize public reason's ideal. Or, as Rawls puts it: Citizens' mutual knowledge of one another's religious and nonreligious doctrines expressed in the wide view of public political culture recognizes that the roots of democratic citizens' allegiance to their political conceptions lies in their respective comprehensive doctrines, both religious and nonreligious. In this way citizens' allegiance to the democratic ideal of public reason is strengthened for the right reasons.

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But a religious citizen's allegiance to public reason's ideal would also seem to depend on how successfully political liberalism can address the questions with which this chapter began. Critics have identified a number problems encountered at the intersection of religious commitment and public reasoning. Some of these problems might be formulated specifically as difficulties with political liberalism, while others might be associated more generally with the notion that citizens should sometimes exercise restraint in their public religious discourse and argument. I shall begin with familiar objections to the doctrine of restraint in an attempt to determine whether and to what extent these objections are applicable in the case of Rawls's wide view of public reason.

Public reason and religion: three main criticisms Are the requirements of public reasonfeasible? Public reason's ideal is realized by persons who have successfully adopted a social role, namely, the role of democratic citizen. This role draws on the basic moral powers of persons, as well as their willingness to recognize public reason's structure and exercise certain intellectual capacities. Good citizens must be able to evaluate evidence, engage in valid forms of reasoning, apply principles of justice, deliberate together, and critically assess their own beliefs and convictions. Through these capacities as well as their dialogue with others, citizens are able to make responsible judgements about which of their own claims and arguments are sound and based on adequate public reasons. This form of self-understanding is essential if they are to formulate political justifications that are consistent with the criterion of reciprocity. However the practice among citizens of categorizing their own reasons and arguments as "public" and "nonpublic" may also appear to be rather unrealistic. First, at times it will be quite difficult for a citizen to determine which of her various beliefs should count as public reasons. A citizen must attempt to determine the extent to which the force of a claim or argument derives from a political conception of justice that might be presented independently of her comprehensive religious doctrine. She should also consider how her reasoning would be received if she were a judge addressing a court or legislator addressing her constituents. A citizen must also continually bear in mind the opposing comprehensive views and the different political conceptions of other citizens. She should attempt to imagine just how accessible, reasonable, and significant her claims would appear if she believed what others reasonably believe, both politically and comprehensively. Yet these forms of self-examination, self-criticism, and imagination may turn out to be quite difficult to sustain. To set aside one's religious convictions in political deliberation requires, as Kent Greenawalt has observed, "an exceptional discipline," and so "[i]t is

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doubtful whether one should recommend to ordinary people a self-restraint that is so hard to perform." This difficulty is compounded by the fact that in other contexts citizens may grow accustomed to deliberating from within their religious doctrines about political questions. The role of citizen is after all one social role among the many that are usually integrated into a complex personal identity. As more than just citizens, persons in the background culture of civil society will reason in different ways about the issues that affect their lives and communities. Thus on the basis of her religious doctrine a citizen may arrive at a moral judgement, or even a political one, about the issues underlying a constitutional essential or matter of basic justice. Yet the same citizen is then asked to set aside those judgements, or at least some of the grounds for them, for the purpose of reasoning publicly with others who do not share her comprehensive view. A citizen may conclude that she is being asked to separate her deliberation from an essential part of her person, an experience that may be both awkward and alienating. Thus some critics have argued that Rawls underestimates the difficulty of asking religious believers to ignore what they take to be the highest moral authority.As Christopher Eberle observes, because the obligation to obey God is for many theists both overriding and totalizing, it is not easily relegated to a nonpublic realm.Others critics have argued that the fact that citizens in a political culture like that of the United states do regularly introduce religious arguments as justifications in political decision-making is a reason that they should continue to do so. Certainly it seems implausible to ask citizens to maintain an artificial barrier between their deepest convictions and their political commitments. I believe that these concerns show public reason to be a demanding ideal, but not an impossible one. To engage in inquiry after suspending all or most of our beliefs would be an arduous philosophical task. But this is not what public reason requires. That we cannot suspend all of our beliefs at once does not mean that we cannot bracket some of them or examine certain beliefs in light of others. In determining which of our beliefs should serve as public reasons we have to start somewhere, namely with the constitutive norms and values of a political conception of justice. Conversations with others, along with the forms of self-questioning, thought-experiment, and imagination already discussed, enable us to sharpen and revise these determinations in specific cases. They also help us to appreciate which considerations are most relevant for the issue at hand. We then attempt to draw conclusions based on our public reasoning, comparing these conclusions to our prior intuitions and judgements or to the conclusions we reach from within our comprehensive doctrines. But even if reasoning of this kind is possible, would it contribute to an experience of a compartmentalized existence, alienating citizens from the

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political process, or from themselves? Perhaps in some cases it would, although answers to this question will vary in light of the historical and social conditions of particular public cultures. In general, however, there are several reasons why public reason need not be understood as alienating. First, the experience of having obligations associated with a recognized role or status is a familiar one for most people. In addition to our obligations as citizens, we have obligations to others as friends, family members, neighbors, co-workers, or simply as fellow human beings. While not all of these relationships require us to adhere to a specific standard of reasoning, we do assign weight to certain kinds of considerations when we ask ourselves questions such as "What would a good friend do in this situation?" Moreover the very nature of a relationship sometimes plays an essential part in establishing what we owe to others. And sometimes the sources of our obligations are manifold. Spousal obligations, for example, may derive from a shared history, personal promises, a publicly recognized marriage, and a relationship to God. The moral life provides numerous examples of obligations the content and source of which are determined in part by roles and particular relationships. It is also important to observe that the idea of public reason does not require citizens to maintain an "airtight barrier" between their beliefs or between domains of discourse. As I have argued, the restraints on reasoning that are imposed by this idea apply only to claims and arguments that contribute to political justifications concerning fundamental political questions in the public political forum. And even acknowledging these restraints, citizens may still endorse alternative (nonpublic) arguments for their positions on these questions. The wide view of public reason, as I have interpreted it, not only allows but also encourages citizens to present religious claims and arguments publicly alongside their political justifications. Each citizen, moreover, is expected to remain aware of religious diversity and to acknowledge that the political conceptions of many fellow citizens are morally embedded in those citizens' comprehensive religious and philosophical views. Finally, the experience of a separation in judgement, unavoidable in some cases, need not always be an alienating experience. After all, in thinking about a fundamental political question, a citizen may discover that public reason confirms the judgements of nonpublic reason. In this case, reasoning "separately" about an issue, reasoning in terms other than those of a comprehensive doctrine, shows that doctrine, or at least some of its claims or conclusions, to be supported by independent grounds. A citizen's allegiance to her religious doctrine may be strengthened by this kind of support. Of course there are bound to be occasions when public reason seems to contravene the conclusions of a religious view. Such cases should motivate a citizen to consider carefully whether her religious reasoning, as well as her public reasoning, is sound. Often it is not obvious exactly what religious doctrines recommend politically.

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In most cases, starting from the authority, teachings, or basic texts of a religious doctrine, a number of inferential steps must be taken before specific decisions about matters of law and public policy are reached. Misinterpretation and mistakes in judgement are as much a possibility along this path as they are in the domain of public reason. Are the requirements of public reason fair? It is not only in arguments about feasibility that one encounters the charge that the idea of public reason compartmentalizes various dimensions of the person. This charge often serves as a premise in a related argument against public reason, namely, an argument about fairness. According to this argument, even if it is possible for citizens sometimes to separate their judgements so that on the appropriate occasions they rely on sufficient public reasons, it is unfairto require such separation from religious citizens whose public and nonpublic lives are otherwise guided and unified by religious ideals. Charges that the idea of public reason is unfair may be understood in terms of two basic concerns. A first concern is that politically the idea of public reason would be disproportionately burdensome for religious citizens. Second, critics sometimes suggest that the idea of public reason would interfere significantly with the integrity of religious belief and practice. I shall address both of these concerns, beginning with the first. Critics of public reason worry that it requires religious citizens to exercise measures of restraint and self-examination that are not required, or perhaps not required in the same way, of nonreligious citizens. Nicholas Wolterstorff observes that religious reasons referencing God or sacred religious texts are more obviously comprehensive and so "nonpublic" than reasons derived from a secular comprehensive doctrine. An argument based on the Torah, for example, is more likely to be interpreted by citizens at large as nonpublic than one based on utilitarianism or nationalism. Thus the idea of public reason would seem to be unfair because it politically disadvantages religious believers vis-a-vis citizens who hold nonreligious comprehensive doctrines. A related argument is advanced by Patrick Neal, who suggests that persons who hold liberal comprehensive doctrines stand in a privileged position within political liberalism.Comprehensive liberals can for the most part assume that their comprehensive beliefs are congruent with the conclusions of political liberalism, while citizens of faith understandably would want to check these conclusions against their background convictions. Imagining that their positions were reversed, Neal suggests that a comprehensive liberal would want to carry out the same analysis of her background convictions if she were asked to accept principles of justice that were developed within a religious tradition.

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Although much depends on the public culture in question, let us suppose that religiously based reasoning is generally easier to recognize than some other forms of nonpublic reason. It is not clear how this fact translates into a case of unfairness. The idea of public reason does not single out religion as a target of restriction or restraint. Rawlsian political liberalism does not essentially turn on the religious-secular distinction, nor does it demand special forms of self-examination or self-criticism among only religious believers. Conscientious citizens understand the unreasonableness of simply invoking a secular comprehensive point of view when constitutional essentials or matters of basic justice are at stake. They also reject as unreasonable such political advocacy when it is motivated by hostility toward religion or by an effort to promote secularization, atheism, or a nonreligious doctrine such as comprehensive liberalism. Moreover, political liberalism certainly permits citizens to affirm, as the content of their public reasoning, a reasonable political conception that may be associated with a religious view, provided that such a conception can also be presented as freestanding to others. The idea of public reason is fair in the sense that it applies in the same way to all persons qua citizens. It attributes to all citizens the same justificatory responsibilities and the same requirements of restraint in reasoning. To be sure, some religious believers, based on their theological orientation, are more likely to accept the general idea that the moral-political judgements associated with their religious convictions also admit of reasoned justification. Thus the idea of public reason might be more politically disadvantageous for certain doctrines in practice, insofar as it would demand adherents of those doctrines, in comparison to other citizens, to exercise more restraint on some issues. Leaving aside an analysis of which citizens and doctrines, religious or nonreligious, might encounter potential political disadvantages, it is still far from obvious that these disadvantages represent a form of unfairness. A first point is that citizens who hope to deliberate together about common purposes might find that appealing solely to sectarian religious justifications is politically ineffective. Absent an attempt to satisfy the proviso or to translate religious claims into a public-political idiom, such justifications will likely fail to convince many fellow citizens. Second, norms of political cooperation ought to protect citizens' interests in affirming and pursuing reasonable comprehensive doctrines, but these norms cannot be fashioned to secure the vitality or continuity of particular religious doctrines. As Rawls observes, drawing on Isaiah Berlin, "[a] just liberal society may have far more space than other social worlds but it can never be without loss." One way to substantiate the charge of unfairness would be to show that public reason is so disproportionately restrictive that either only a small set of doctrines or only nonreligious doctrines could flourish under its ideal. But this outcome is, I think, rather unlikely, especially considering the extensive religious freedoms guaranteed

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by all reasonable political conceptions of justice that would comprise the content of public reason. It is also worth bearing in mind that in some public cultures, such as that of the United States, the great majority of the citizens and officials who would actually apply the idea of public reason also identify as religious and remain deeply sympathetic to religiously inspired conceptions of justice. Yet these same citizens might still disagree about many religious and theological issues, as well as about how religious convictions and practices should inform political decision-making. In the United States, for example, it is simply not the case that citizens who support a strong religious voice in politics agree also about a particular political vision or agenda that would be disadvantaged by public reason.And an increasingly religiously diverse population would only seem to heighten the possibilities for disagreement about religiously informed political issues or about the appropriate role of religion in public life. In this context, the idea of public reason would respond as much to disagreements among religious believers and traditions as it would to disagreements between religious and nonreligious citizens. What about the second charge of unfairness, i.e. that public reason would interfere significantly with the integrity of religious beliefs and practices? A religiously grounded wholeness or integrity is an ideal, perhaps the highest ideal, in the lives of many religious believers. A good life is one in which religious faith, for example, inspires and informs all of one's actions, commitments, and decisions, including one's political decisions about whether to support a particular candidate, campaign, policy, law, or judicial decision. For some citizens it follows from a religious ideal that their political deliberation and decision-making should not be separated from their deepest religious convictions. To the extent that public reason at times requires them not to base their judgements on those convictions, it represents an infringement on the exercise of their religion.Hence Wolterstorff concludes that the idea of public reason is an unfair violation of the freedom of religious citizens: [T]he liberal assumes that requiring religious people to debate and act politically for reasons other than religious reasons is not in violation of their religious convictions . . . He assumes, in other words, that though religious people may not be in the habit of dividing their lives into a religious component and a non-religious component, and though some might not behappy doing so, nonetheless, their doing so would in no case be in violation of their religion. But he is wrong about this. It is when we bring into the picture people for whom it is a matter of religious conviction that they ought to strive for a religiously integrated existence—then especially, though not only then, does the unfairness of the liberal position come to light.

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There are a number of issues that must be addressed by way of a response to this criticism. An initial question is whether the idea of public reason would in fact interfere with an ideal of religious integrity. This is undoubtedly a possibility. I have already argued that public reasoning could have the effect of strengthening a person's commitment to a religious doctrine, by providing support to that doctrine's claims and conclusions. Moreover, in the wide view, citizens may offer both public and religious reasons in the public political forum, and they are encouraged to engage in religious dialogue that helps to illuminate the nature of reasonable disagreement. Some citizens may insist, however, that for them living a religious life involves drawing directly from a religious doctrine in their political deliberations, without having to consider the requirements of public reason when fundamental questions are at stake. For these citizens, the idea of public reason, even as I interpret it, will interfere with the goal of integrity. Wolterstorff is right to recognize this interference as a genuine moral-political problem. But in precisely what sense is the idea of public reason unfairto religious believers who are also committed to the ideal of integrity? We might begin addressing this question by setting aside the least convincing answers to it. A first point is obvious: The idea of public reason does not deny a religious citizen's political right to speak and act as she sees fit. The principles of a reasonable political conception of justice legally protect, though they do not encourage, a citizen's refusal to recognize the idea of public reason in her political speech and action. Second, public reason is not unfair in the sense of placing a burden—in this case, an obstacle to integrity—uniquely on religious citizens. The tension between public reason and integrity highlighted by Wolterstorff could arise in the pursuit of a nonreligious comprehensive doctrine as well as a religious one. A deep ecologist, for instance, might believe that the requirements of public reason fail to place sufficient weight on the value of nonhuman nature.Even a comprehensive liberal might find that the requirements of public reason interfere with her attempt to organize her life around values of creativity and experimentation that not all citizens share. In claiming that public reason infringes on the "free exercise of their religion," Wolterstorff ostensibly means that it prevents people from fully practicing their religion, or living in accordance with its ideals and directives. That is, an obligation to reason publicly appears to drive a wedge between a person's religious convictions and the political choices that would otherwise be attached to those convictions as religious ideals and obligations. In order to get a clear view of this problem, we should examine the type of convictions that might conflict directly with the idea of public reason. Assume that what we may call, from a political standpoint, first-order religious convictions consist of religiously based teachings about God, sacred

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texts, creation, the human person, salvation, moral choices, the aims of life, and so on. If it counts among a person's second-order religious convictions that she is obligated always to base her political advocacy and choice primarily on these first-order religious convictions, and if the obligation to reason publicly is incompatible with the obligation always to base political advocacy and choice primarily on such first-order convictions, then the idea of public reason would seem to require the rejection of at least one of a person's (second-order) religious convictions. Thus, one might conclude, public reason would infringe unfairly upon the freedom to live in accordance with a religious doctrine. Several considerations, however, militate against such a strong conclusion. First, we should remember that, like the problem of integrity, the issue of infringement is not restricted to religious believers. Any citizen, religious or nonreligious, could claim that it counts as a belief within her comprehensive doctrine that fundamental political choices should be made primarily on the basis of that doctrine even in the absence of supporting public reasons. Second, the unfairness of this supposed infringement depends upon how widely one interprets the freedom of free exercise. Interpreted in absolute terms, according to which no religious obligation could be overridden or morally criticized, such freedom would be incompatible with the fact of reasonable pluralism. Religious or nonreligious majorities could use an absolutist understanding of integrity and free exercise to justify using state power in order to promote a particular comprehensive doctrine, including, for example, atheism. Assuming that such a conception of religious freedom is untenable, it follows that not all restrictions on religiously motivated actions and obligations amount to unfair infringements on free exercise. The question is whether the particular restrictions associated with the Rawlsian conception of public reasoning are consistent with free exercise, and I submit that they are. These restrictions are unlikely to interfere significantly with most religious belief and practice. They focus less on the content of a religious doctrine than on the political relationship characteristic of a pluralistic citizenry that includes a diverse body of religious believers. The content of a religious doctrine is affected directly by the idea of public reason only insofar as that doctrine issues second-order claims about whether and how to draw on first-order religious convictions in setting the fundamental terms of political association. Even where this conflict exists, it affects only one aspect of a person's comprehensive doctrine by presenting that person with opposing obligations. As I discuss below, this potential conflict of obligations may indeed turn out to present a problem for political liberalism's account of public reason's status as a moral duty of citizenship. But it is not a problem that essentially turns on the unfairness of public reason or on the violation of the free exercise of religion.

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Would the practice of public reason have adverse social and political consequences? If the arguments presented thus far are correct, the idea of public reason, as an obligation of liberal-democratic citizenship, is neither infeasible nor unfair to religious believers. But religiously minded citizens might encounter a third variety of criticism, based on consequentialist arguments about the implications of realizing public reason's ideal. According to this variety of criticism, the actual practice of public reasoning would significantly impede or impoverish public political deliberation. In the literature on the role of religion in the public square, different concerns of this sort have been linked to proposals for restraints on religious discourse and argument in political decision-making. These restraints are said to privatize what should remain public. Specifically, they are said to weaken or silence critical religious voices that protest injustice, and to deprive citizens of the many social and political benefits that might come from robust religious-political dialogue.Critics often turn to Rawls's own examples of Abolitionism or the civil rights movement as examples of struggles that were sustained by religious conviction and made effective use of public religious argument. Surely we would not want to condemn the actors in these movements for running afoul of the guidelines of public reason. These concerns lead to understandable objections—indeed perhaps decisive objections—to the restraints associated with an exclusionist interpretation public reason. But they are not objections that are easily applied to Rawls's wide view of public reason. Political liberalism does not reduce religious discourse to private reflection, as if religious commitment were a mere preference or "hobby." Far from being a private affair, religious discourse constitutes part of what Rawls calls the "social reason" of the background culture of civil society where there are no proposed restrictions on the presentation of religiously based arguments. Religiously based arguments, including arguments supporting campaigns against injustice and oppression, represent an important contribution to the background culture that shapes the political attitudes and commitments of citizens. And, under the terms of the proviso, these arguments are also admissible in the public political forum. Moreover, a wide view of public reason, properly interpreted, encourages citizens to engage one another and to aim at a richer understanding of how different comprehensive views can nourish reasonable political commitments and conceptions ofjustice. Of course, in a public culture with a high degree of religious identification and church involvement, citizens are more likely to have religiously based political convictions. One problem, discussed already, is that citizens with such convictions would be incapable of dividing their judgements into "public" and "nonpublic" categories. But we can now examine a related problem that might be associated with the fact that many citizens do regularly

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rely on religious convictions as the basis of political choice: Because citizens do in fact rely on religious convictions in this way, their convictions should be tested, as Michael Perry puts it, in "the to-and-fro of public political argument." In one of Perry's examples, a citizen might be opposed on biblical grounds to the legal recognition of same-sex unions. Irrespective of that citizen's attempt to exercise the virtues of citizenship by attempting to locate supporting public reasons for her position, a thoroughgoing examination of the biblical grounds for her opposition to same-sex unions might reveal those grounds to be inadequate. 48 Perhaps only the public testing of her biblically based commitments would encourage her to change her position on the issue. In the case of a bad argument that nevertheless informs the political choices of citizens, why should we subject unsound public reasoning to more scrutiny than unsound religious reasoning? As I see it, however, the wide view of public reason provides ample room for the critical testing of religious convictions. Challenging another citizen's religiously based argument for a position is not always equivalent to offering a justification for the opposite position, a justification which would require supporting public reasons. But, even in cases where a citizen's challenge to another citizen's religiously based argument also serves as a justification for the first citizen's position on a fundamental political issue, that citizen need only recognize and adhere to the terms of the proviso. A wide view of public reason would, for example, enable a citizen to reject another citizen's biblically based arguments for opposition to same-sex unions, and/or present both religiously based counter-arguments and public reasons favoring the legal recognition of same-sex unions. Moreover, discussion of religious arguments for and against the recognition of same-sex unions is the kind of discussion that is likely to occur for the most part outside of the public political forum. Much critical testing will be carried out in the background culture where the restrictions of public reason do not apply. But this reply leads to an additional problem. It is possible that the requirements of public reason, regardless of where they are supposed to apply, would have a significant effect on religious discourse and argument in the background culture. Paul Weithman argues that the norms which govern official political decision-making "tend, as a sociological matter, to be taken as norms for other discourse as well." Churches and religious believers might end up engaging in "self-censorship" by limiting their conversations to the terms of public reason, even when they are not required to do so. This practice of selfcensorship could in turn give rise to many of the negative social and political implications that seemed at first not likely to result from public reasoning. That is, such self-censorship might weaken or silence religious criticisms of injustice, prevent enriching encounters with diverse religious believers, and stand in the way of sufficient testing of religiously based political arguments.

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Would citizens be capable of sustaining, in their official and unofficial deliberative practices, the distinction between the norms governing the background culture and norms governing the public political forum? Would a blurring of this distinction lead to a more dialogically impoverished public square? I shall not pursue these questions further, though it seems that the answers to them ultimately depend upon empirical evidence about the practice of public reason which is simply not available. However, these questions do point to potential dangers in the practice of public reasoning, and they suggest that the citizens who would realize public reason's ideal must meet a relatively high standard of political virtue. These citizens must have both the capacity and the willingness to make the distinctions in judgement required by the idea of public reason. Weithman's concerns are connected to what he understands to be a central problem with the "standard approach" to the question of religion and public reasoning. The standard approach, exemplified by the RawIsian approach, begins by positing an ideal to which citizens must aspire, without sufficiently examining the conditions that make good citizenship possible. An alternative approach, endorsed by Weithman among others, is to begin instead with sociological and political facts about a particular public culture, and, in light of the empirical evidence, to present a conception of liberal-democratic citizenship that more effectively preserves the valuable public-political contributions made by churches and religious believers. 50

Public reason and religion: problems with political liberalism The criticisms examined so far, while often leveled at Rawlsian public reason, might be addressed to different liberal conceptions of political justification and different proposals for restraint in religious discourse and argument. I have only attempted to show that these criticisms are, for the most part, either inapplicable or unwarranted in the case of Rawls's wide view of public reason. But there are additional concerns about religion and public reason that might be addressed more directly to the Rawlsian view, raising questions about the conceptual machinery of political liberalism. Before concluding, I shall briefly examine two such concerns. A first concern is that political liberalism does not contain an adequate account of why the idea of public reason is a moral duty of citizenship that presents citizens with binding moral obligations that would override, in the case of a conflict, competing religious ideals and obligations. According to political liberalism, a religious citizen who rejects the requirements of public reason acts unreasonably. That is, such a citizen fails to respect others as free and equal, capable of exercising their basic moral powers and entitled to fair terms of cooperation. But, with a number of critics, we might ask: Why does a

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respect for persons require more than a good faith effort to seek a sound justification and provide an honest explanation of the grounds for one's political choices? Why do choices made solely on the basis of a religious doctrine represent a failure to treat others as free and equal? Why should religious citizens who accept the norm of respect for persons also accept the obligation sometimes to exercise restraint? There seems to be an explanatory "gap" between political liberalism's underlying conceptions of the person and society and its 52 more specific requirements of public reason. To close this gap, we would need an argument that demonstrates why the requirement sometimes to exercise restraint, as a moral obligation of citizenship, is entailed by political liberalism's conception of the person and society. While there may be a convincing argument that satisfies this desideratum, readers are unlikely to find it explicitly articulated in the pages of Political Liberalism. Much will depend on just what it means to treat others as free and equal, that is, as free to affirm reasonable conceptions of the good and equally entitled to reasons justifying the arrangement of shared political institutions. A second concern is that, absent an appeal to religious or other comprehensive beliefs, public reason does not lead to determinate conclusions in hard cases. Numerous critics have presented the charge of indeterminacy against Rawls's idea of public reason. The publicly accessible values of a political conception ofjustice are said to be too limited and abstract to sustain plausible arguments, especially when the disagreement among citizens reaches beyond the domain of the political to include scientific or philosophical matters. Or, sometimes the same political values, interpreted or weighed differently, might be cited in support of opposite conclusions on a single issue. But we must be clear about just what is problematic in cases of indeterminacy in political judgement. The problem is not that most arguments in public reason would be radically indeterminate because they could be based only on abstract political values. On the contrary, public reason's content also consists of specific principles ofjustice, guidelines of inquiry, scientific judgements, and many of the epistemic resources of philosophy, common sense, and reasoned reflection on personal and shared experiences. Nor is the problem that citizens might regularly fail to locate political justifications that all other reasonable citizens would in fact accept. Citizens in public reason aim at agreement but do not expect it; indeed, disagreement between citizens is assumed to be the "normal case." In the case of a "stand-off," Rawls argues, citizens should "vote for the ordering of political values they sincerely think most reasonable."55 A more likely problem is that for some fundamental political issues — what we might call special cases of indeterminacy—judgements that rely on seemingly comprehensive philosophical or religious claims may turn out to be unavoidable. 56 Some political questions involve disagreements over more than how to interpret or weigh basic political values. With respect to the

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abortion issue, for example, the judgement of who counts as a person would seem to be both required for any plausible political justification and informed directly by various philosophical commitments. Citizens who attempt to follow political liberalism's instructions for the case of a stand-off may conclude that no ordering of political values is by itself sufficient to sustain a determinate political judgement unless the question of personhood is first resolved. It is not clear why a sincere and reasonable citizen violates public reason's ideal by relying on philosophical or religious convictions in such special cases of indeterminacy. The problem of indeterminacy also raises questions about how to understand political liberalism. On the one hand, according to Rawls, a reasonable political conception of justice should be complete, so that it provides answers to most fundamental political conceptions. Rawls argues that the values of public reason "are not puppets manipulated from behind the scenes by comprehensive doctrines." 58 On the other hand, political liberalism should be ready to admit the political justifications of reasonable religious citizens, some of whom endorse reasonable political conceptions that originate in, but could be presented independently of, their comprehensive doctrines. 59 Indeed, many citizens, especially religious citizens, will not arrive at a pro tanto justified political conception by adopting the perspective of the original position. Rather they will formulate political justifications by translating some of the teachings of their comprehensive doctrine into the political values of public reason, seeking sound arguments which satisfy the criterion of reciprocity and which others might accept as at least reasonable. To be sure, Rawls is right to insist that sincere and reasonable religious citizens should not appeal to political conceptions on an ad hoc basis, manipulating their public reasoning so as to decide issues on the basis of doctrinal grounds. Yet, in the effort to work out reasonable political conceptions from their religious traditions, these citizens might end up adopting political conceptions that either present lacunae in reasoning or include seemingly "comprehensive" beliefs in special cases of indeterminacy. Tolerating this incompleteness may turn out to be the price that political liberalism must pay for the important goal of making room for multiple reasonable approaches to the question of what justice demands.60

Conclusion The problem of indeterminacy and the problem of the moral grounding of public reason's requirements call for further discussion of the very structure of political liberalism. And there are sure to be additional questions about public reason and religion. But, one of the main goals of this chapter has been

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to offer an interpretation of Rawls's idea of public reason that shows it to be feasible, fair, and acceptable, all things considered, in a pluralistic society marked by widespread religious conviction. The idea of public reason does require restraint in the appeal to a religious doctrine, but only when that doctrine is used, absent supporting public reasons, in the public political forum as a justification for the exercise of coercive power with respect to constitutional essentials and matters of basic justice. This means that the restrictions imposed by the idea of public reason do not apply to much religious discourse and argument. Indeed, in response to what I have called the transparency problem, political liberalism might even be understood to encourage certain forms of religious discourse and argument in the public political forum. Successful public reasoning depends on citizens who can recognize opposing claims, conceptions of justice, and comprehensive philosophical and religious doctrines as reasonable. And this recognition of reasonableness depends on citizens' willingness to engage one another in attempting to understand the sources and nature of ongoing disagreements. The idea of public reason is thus consistent with enriching and fruitful public religious dialogue among citizens who are committed to seeking political justifications that satisfy the liberal principle of legitimacy based on the criterion of reciprocity. Religious believers and other citizens who participate in such dialogue while at the same time acknowledging the requirements of public reason are building the bonds of trust and civic friendship. Notes 1.

2. 3.

4. 5.

Stephen L. Carter, The Culture of Disbelief (New York: Basic Books, 1993). For an overview of contemporary debates about the relationship between religion and liberalism, see Paul Weithman's introductory essay, "Religion and the Liberalism of Reasoned Respect," in his (ed.) Religion and Contemporary Liberalism (Notre Dame: University of Notre Dame Press, 1997), 1-37. Carter, Culture of Disbelief, 42. For a treatment of this topic within the legal academy, see especially the numerous contributions to the following symposia: "The Role of Religion in Public Debate in a Liberal Society," San Diego Law Review 30 (1993), 643-916; "The Religious Voice in the Public Square," Loyola of Los Angeles Law Review 29 (1996), 1401-542; and "Religiously Based Morality: Its Proper Place in American Law and Public Policy?" Wake Forest Law Review 36 (2001), 217-570. An exception is the defense of political liberalism presented by Daniel A. Dombrowski in his Rawls and Religion (Albany: SUNY Press, 2001). PL, 243, n.32. Rawls briefly discusses the "troubled question of abortion" in order to show how comprehensive religious or philosophical doctrines support, or fail to support, a reasonable balance of political values. Rawls cites familiar political values, but offers no argument, in concluding that, by any reasonable measure,

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7. 8.

9.

The Legacy of John Rawls the balance of these values would support a woman's right to abortion, at least during the first trimester of pregnancy. On the question of abortion, the equality of women is said to be an "overriding" value, and any comprehensive doctrine that would lead to a denial of abortion rights is "to that extent unreasonable." (PL, 243, n.32) Numerous commentators—indeed most of Rawls's critics and many of his sympathizers—have turned to this footnote in order to support a critical challenge of one sort or another. (See, for example, John Finnis, "Abortion, Natural Law and Public Reason," in Robert P. George and Christopher Wolfe (eds), Natural Law and Public Reason (Washington, DC: Georgetown University Press, 2000), 75-105.) A retraction of sorts is offered in "The Idea of Public Reason Revisited," where Rawls suggests that the original footnote was intended only to "illustrate" the way in which comprehensive doctrines can come into conflict with public reason, assuming that public reasons are available on only one side of a given question. On the abortion question, however, Rawls admits that there are reasonable arguments that both satisfy the requirements of public reason and deny a right to abortion. (See PKR reprinted in CP, 605-6, n80 and n82.) In the text's second "Introduction," Rawls formulates the main question of Political Liberalism as follows: "How is it possible for those affirming a religious doctrine that is based on religious authority, for example, the Church or the Bible, also to hold a reasonable political conception that supports a just democratic regime?" (PL, xxxix.) CP, 578. I thank Michael Perry who, after reading an earlier version of this chapter, suggested that I make this distinction clear. (See also Perry, "Why Political Reliance on Religiously Grounded Morality is Not Illegitimate in a Liberal Democracy," Wake Forest Law Review 36 (2001), 217-50 (228).) As Charles Larmore has observed, Rawls does not always clearly distinguish between political discussion and political decision-making. (See Charles Larmore, "Public Reason," in Samuel Freeman (ed.), The Cambridge Companion to Rawls (New York: Cambridge University Press, 2003), 368-93, especially 382-3.) PL, 217. Rawls does not specify the extent to which ordinary citizens, who are supposed to be ready to explain their political choices in public reason, must actually present their public reasons for these choices. In a representative democracy, it would seem to be especially important that legislators, judges, and other political officials actually present and publicly discuss their public reasoning. Indeed, Rawls suggests that the idea of public reason applies directly to political officials, while public reason's ideal applies also to citizens, who are to think of themselves as iflheywere officials.(CP,577) For a discussion of how requirements of public reasoning might apply differently in the cases of citizens and various governmental officials, see PI, 215-16 and CP, 575-8. See also Kent Greenawalt, Private Consciences and Public Reasons (New York: Oxford University Press, 1995). These distinctions are important, but for the sake of convenience I shall refer hereafter to both citizens and officials simply as "citizens," using the terms "idea" and "ideal" interchangeably with respect to public reasoning.

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17.

CP, 576. In a number of writings, Robert Audi has advanced principles of secular reasoning and motivation for the citizens of a liberal democracy. (See especially Robert Audi, Religious Commitment and Secular Reason (New York: Cambridge University Press, 2000).) CP, 583. Ibid., 581. PL, 147-54. In a number of essays, Solum develops a similar interpretation of public reason. (See Lawrence Solum, "Constructing an Ideal of Public Reason," San Diego Law Review 30 (1993), 729-62; Solum, "Situating Political Liberalism," Chicago-Kent Law Review 69 (1994), 549-88; Solum, "Inclusive Public Reason," Pacific Philosophical Quarterly 75 (1994), 217-31; and Solum, "Novel Public Reasons," Loyola of Los Angeles Law Review 29 (1996), 1459—85.) Solum claims to have introduced the distinction between the exclusive view and the inclusive view in correspondence with Rawls in 1990. (See Solum, "Situating Political Liberalism," 562, n.68.) See PL, lii and PRR, 591—4. The wide view is Rawls's considered view, and in what follows I shall leave aside the details of Political Liberalism's original "inclusive view" of public reason. For criticism of the inclusive view, see Paul Weithman, "Taking Rites Seriously," Pacific Philosophical Quarterly 75 (1994), 272—94. For a defense of the inclusive view, as preferable to the wide view, see Charles Larmore, "Public Reason," 386—7. CP, 591; cf, PL, li-lii.

18.

Audi, Religious Commitment and Secular Reason, 75—8.

10. 11.

12. 13. 14. 15.

16.

CP, 592. Ibid., 591,593. For full discussion of this interpretation of reasonableness as a standard that applies to both citizens and their claims and arguments in public reason, see my "What is Reasonableness?" Philosophy and Social Criticism 30.5-6 (2004), 597-621. 22. CP, 594. 23. "Intellectual solidarity" is David Hollenbach's term. See David Hollenbach, S.J., The Common Good and Christian Ethics (New York: Cambridge University Press, 2002). For Hollenbach's understanding of the ways in which his approach is "generally compatible" with certain elements of the Rawlsian conception of public reasoning, see especially The Common Good and Christian Ethics, 165—70. "Ecumenical political dialogue" is Michael Perry's term from his, Love and Power: The Role of Religion and Morality in American Politics (New York: Oxford University Press, 1991). It requires citizens to adopt attitudes offallibilism and pluralism, and, in presenting politically relevant religious arguments, to honor standards of public accessibility and public intelligibility. I should note that Perry's view has changed over the years, and that my wide interpretation of Rawls's wide view of public reason has more in common with Perry's original discussion of ecumenical political dialogue and ecumenical political tolerance, from Love and Power, than with Perry's subsequent accounts of the role of religion in political decision-making, discussed below. 19. 20. 21.

148 24. 25. 26.

27. 28. 29.

30. 31.

32. 33.

34. 35.

The Legacy of John Rawls CP, 592. Here I am indebted to David Rasmussen for many valuable discussions. Kent Greenawalt, Private Consciences and Public Reasons, 138. Greenawalt's own account of public reason also recommends certain restraints on reasoning, though these restraints are intended to be more flexible and context dependent than the ones proposed by Rawls. See also Greenawalt, "Religion and American Political Judgments," Wake Forest Law Review 36 (2001), 557-70. See, for example, Patrick Neal, "Political Liberalism, Public Reason, and the Citizen of Faith," in George and Wolfe (eds), Natural Law and Public Reason, 171—98. ChristopherJ. Eberle, Religious Convictionin Liberal Politics (New York: Cambridge University Press, 2002), 145. Michael Perry, Under God? (New York: Cambridge University Press, 2003), 39—41. See also Carter, The Culture of Disbelief, 55—6 and David Hollenbach, S.J., "Contexts of the Political Role of Religion," San Diego Law Review (1993), 877-902 (889). Robert Audi discusses this possibility in his Religious Commitment and Secular Reason, 116-41. Nicholas Wolterstorff, "The Role of Religion in Decision and Discussion of Political Issues," in Robert Audi and Nicholas Wolterstorff (eds), Religion in the Public Square (New York: Rowman and Littlefield, 1997), 67-120 (105). See also Wolterstorff, "Why We Should Reject What Liberalism Tells Us about Speaking and Acting in Public for Religious Reasons," inWeithman (ed.), Religion and Contemporary Liberalism, 162—81. Patrick Neal, "Political Liberalism," 171-98. Here I adapt Michael Perry's defense of his own standard of "public accessibility" in Love and Power, 107. For the charge that Perry's standard of public accessibility is disadvantageous for theologically conservative and traditionalist citizens, see David Smolin, "Regulating Religious and Cultural Conflict in Postmodern America: A Response to Professor Perry," Iowa Law Review 76 (1991), 1067— 1103 and Sanford Levinson, "Religious Language and the Public Square," Harvard Law Review 105 (1992), 2061-79. See also Daniel O. Conkle, "Different Religions, Different Politics: Evaluating the Role of Competing Religious Traditions in American Politics and Law," Journal of Law and Religion 10 (1993—4), 1—32. Conkle advocates a stronger religious presence in the public square, but he also challenges the principle of religious equality, i.e. the principle that all religions should be treated equally. PL, 197n.32. See also, Rawls's "Fairness to Goodness," reprinted in CP, 267-84. Some of the significant political and theological differences among persons in the United States who generally support church involvement in politics are presented in the July 2003 report by the Pew Forum on Religion and Public Life, Religion and Politics: Contention and Consensus (Washington, DC: The Pew Research Center, 2003). I rely also on the April 2001 report by the Pew Forum, American Views on Religion, Politics and Public Policy (Washington, DC: The Pew Research Center, 2001). See also Robert Booth Fowler, Allen D. Hertzke, and Laura R. Olson, Religion and Politics in America, second edn (Boulder: Westview Press, 1999),

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36. 37. 38.

39.

40. 41.

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especially 137—73, discussing the Christian Right and African American Christianity, both of which include many evangelical Protestants. On the growing religious diversity of the United States, see Diana Eck, A New Religious America (New York: HarperCollins, 2001). Wolterstorff, "The Role of Religion," 105. Ibid., 116. See also Wolterstorff, "Why We Should Reject What Liberalism Tells Us," 176—7. A similar argument is advanced by Christopher Eberle, who turns to the Rawlsian notion of the "strains of commitment" in order to suggest that parties in the original position would reject restraints that potentially threaten their moral identity. (See Eberle, Religious Conviction in Liberal Politics, 140-8.) On this problem, see my "Ecologism, Environmental Protection and LiberalDemocratic Decision-Making," Interdisciplinary Environmental Review 5 (2003), 1-16. Wolterstorff, "Why We Should Reject What Liberalism Tells Us," 176. In an essay that aims at a reconciliation of the views of Rawls, Audi, and Wolterstorff, James Sterba provides an argument that is relevant here: It would not do to correct one unfairness by imposing a similar or even greater unfairness. We need to determine, therefore, whether a minority, religious or otherwise, that loses out to a religious majority might also be unfairly treated, and if it is unfairly treated, whether that unfairness needs to be addressed as much, or even more so, than the unfairness to which Wolterstorff has drawn our attention.

42. 43.

Though I am less convinced than Sterba that Wolterstorff has drawn our attention to an element of unfairness in public reason, I accept this basic argument. (See James P. Sterba, "Rawls and Religion," in Victoria Davion and Clark Wolf (eds), The Idea of Political Liberalism (New York: Rowman & Littlefield, 2000), 34-45 (40).) This general problem is also discussed by Rawls in "Constitutional Liberty and the Concept of Justice," reprinted in CP, 87. For the criticism that restraints on religious discourse and argument would weaken religious critiques of injustice, see Michael Sandel, "Political Liberalism," Harvard Law Review 107 (1994), 1765-94; David Smolin, "Cracks in the Mirrored Prison: An Evangelical Critique of Secularist Academic and Judicial Myths Regarding the Relationship of Religion and American Politics," Loyola of Los Angeles Law Review 29 (1996), 1488-1512; and Timothy P. Jackson, "The Return of the Prodigal? Liberal Theory and Religious Pluralism," in Religion and Contemporary Liberalism, 182—219. For the related criticism that restraints on religious discourse and argument would deprive citizens of the benefits of robust religious-political dialogue, see Jeremy Waldron, "Religious Contributions in Public Deliberation," San Diego Law Review 30(1993), 817-48; Jeffrey Stout, Democracy and Tradition (Princeton: Princeton University Press, 2004), 75—7; Philip L. Quinn, "Political Liberalisms and Their Exclusions of the Religious," in Weithman (ed.), Religion

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44. 45.

46. 47.

48.

49. 50.

51.

52.

53.

54.

The Legacy of John Rawls and Contemporary Liberalism, 138—61; and Wolterstorff, "The Role of Religion," especially 110-11. For a reply to this criticism, see David A.J. Richards, "Public Reason and Abolitionist Dissent," Chicago-Kent Law Review 69 (1994), 787-842. See also Pi, lii. See, for example, the exclusionist view of Richard Rorty in his "Religion As Conversation-stopper," in Philosophy and Social Hope (New York: Penguin Books, 1999), 168-74. On this point, see also Dombrowski, Rawls and Religion, 116. Perry, Under God?, 39-40. See also Perry, Religion in Politics (New York: Oxford University Press, 1997), 44—5. Daniel Conkle also stresses the importance of testing religious convictions in his "Different Religions, Different Politics," especially 28-30. In Under God?, Perry rejects the idea that, just in virtue of the obligations of citizenship, citizens are required sometimes to exercise restraint in their political reliance on religiously grounded moral beliefs. But he also argues that Christians should be wary of religious arguments against the legal recognition of same-sex unions. (See Perry, Under God?, 55—97, and Perry, "Christians, the Bible, and Same-Sex Unions: An Argument for Political Self-Restraint," Wake Forest Law Review 36 (2001), 449-86.) Weithman, Religion and the Obligations of Citizenship (New York: Cambridge University Press, 2002) 141. Ibid., especially 36—92. Both Hollenbach, in The Common Good and Christian Ethics, and Greenawalt, in Private Consciences and Public Reasons, seem to be interested in an approach to liberal-democratic citizenship that would examine more carefully empirical evidence about the role of religion in the public culture. See also John A. Coleman, S.J., "Public Religion and Religion in Public," Wake Forest Law Review 36 (2001), 279-304. See especially Christopher J. Eberle, Religious Conviction in Liberal Politics, 81—151 and Eberle, "What Respect Requires—And What It Does Not," Wake Forest Law Review 36 (2001), 305-52. See also Stout, Democracy and Tradition, 72-3; Wolterstorff, "The Role of Religion," 105-9; Perry, Religion in Politics, 59; and Neal, "Political Liberalism, Public Reason and the Citizen of Faith," 196—7. Perry, "Religious Arguments in Public Political Debate," Loyola of Los Angeles Law Review 29 (1996), 1421-58 (1452-7). Paul Weithman reconstructs and critically examines an argument for why citizens should recognize the duty to reason publicly. (See Weithman, "Citizenship and Public Reason," in George and Wolfe (eds), Natural Law and Public Reason, 125-70.) For a discussion of the indeterminacy problem, see Perry, Religion in Politics, 57—61; Quinn, "Political Liberalisms and Their Exclusions of the Religious," 150-1; Sandel, "Political Liberalism," 1778; Robert P. George and Christopher Wolfe, "Introduction," in Natural Law and Public Reason, 1—9; and Peter de Marneffe, "Rawls's Idea of Public Reason," Pacific Philosophical Quarterly 75 (1994), 232-50(235). As Sharon Lloyd has observed, one need not rely on the "deep" claims of a comprehensive doctrine in order to make use of "argument by counterexample,

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thought-experiment, simple observation and uncontroversial empirical theory." (See Lloyd, "Relativizing Rawls," Chicago-Kent Law Review 69 (1994), 709-35 (721).) 55. PRR, 605. 56. Here I reject the notion that citizens would regularly or typically encounter the problem of indeterminacy on fundamental political questions. (On this point, see Perry, Religion in Politics and PL, liii.) 57. PRR, 605. 58. Ibid., 585. 59. Ibid., 582-3. 60. As I have argued elsewhere, Economic Justice for All, the U.S. Catholic bishops' 1986 pastoral letter on the U.S. economy can be understood as a form of public reason. (See my " 'Political, Not Metaphysical': Reading the Bishops' Letter as a Form of Public Reason," Proceedings of the American Catholic Philosophical Association 77 (2003), 205-19.) Unless it is combined with other elements of Catholic doctrine or social teaching, however, the bishops' letter does not present a "complete" political conception of justice in the Rawlsian sense. Tolerating such incompleteness would enable us to welcome a citizens' reliance on the letter as a source of political justification.

8

John Rawls and the new Kantian moral theory Ana Marta Gonzalez

Introduction In recent years increasing attention has been paid to the new approach to Kant's ethics developed by some American scholars. At first glance, what connects these authors is their attempt to offer an account of Kant's moral philosophy much closer to ordinary moral reasoning and able to challenge the usual charges of formalism and rigorism that, at least since Hegel and Schiller, have accompanied every rendering of Kant's moral philosophy. Beyond the logical differences among proponents, this approach presents itself as a correction of the conventional reading of Kant prevalent in the Anglo-American world for many years. According to the new Kantians, the conventional reading, largely focused on Kant's Groundwork, lends itself to the usual criticisms of formalism and rigorism, thereby crediting other related charges, such as Kant's alleged inability to explain moral motivation or its inherent tendency to jeopardize the ethical integrity of the human agent.2 By contrast, the new approach tends to belittle these criticisms insofar as it claims to offer a more comprehensive reading of Kant's texts, which, by expanding the deliberative aspect of Kant's practical reason, makes his theory more fit to address ordinary ethical problems. Indeed, were we to gather under a single heading most of the topics these authors emphasize, we could certainly focus on their account of practical reason and deliberation, intended to highlight the first-person perspective proper to Kantian moral philosophy. As Korsgaard puts it: Moral philosophy is the extension and refinement of ordinary practical deliberation, the search for practical reasons. This makes Kant's enterprise very different from that of philosophers who talk about morality and the moral agent from the outside, third-personally, as phenomena that are in need of explanation. Kant's arguments are not about us; they are addressed 3 to us. It is from this perspective that we can account both for their review of the traditional versions of the Categorical Imperative, and for their development of other aspects perhaps neglected in the past. Particularly noteworthy is the

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emphasis on the following topics: the particular role of the Hypothetical Imperative in practical deliberation; the complementarity—rather than opposition—of the Hypothetical Imperative to the Categorical Imperative;4 the crucial role of the Categorical Imperative in Moral Judgment; and, finally, the way in which the different formulations of the Categorical Imperative account for significant moral differences in the way we deliberate about the morality of particular actions and even provide the ground for a theory of value. Barbara Herman's remarks, in the Preface to The Practice of Moral Judgment offers a brief overview of the shift in perspective and its implications: It has been one of the givens of Kant's ethics that everything there was to say about moral judgment belonged to the interpretation of the Categorical Imperative tests, and that all of the difficulties in this area were a species of problems about universalization: the difficulty of deriving content from a formal procedure and the problem of action description are the two most famous. I argue that it is much better to see the Categorical Imperative and its tests as an aspect of moral judgment—setting its terms, I would say — but needing to be placed in a framework that can explain moral perception, deliberation, and (internal) criticism. How the Categorical Imperative works cannot be understood apart from a reasoned view of the kind of results it is able to generate and of its place in the moral agent's complex field of response and deliberation ... I argue for the unusual view that Kantian moral judgment depends on the availability of an articulated conception of value—in particular, of the value of the fully embodied person.6 Now, at first glance, and precisely because of its emphasis on the practical dimension of the Categorical Imperative, the new approach seems to owe a great deal to Onora O'Neill's book on the Categorical Imperative. Indeed, in a context still heavily marked by utilitarianism, O'Neill's work represented one of the first attempts to make sense of Kantian moral theory in terms very similar to those of the new Kantian moral theory. Yet there is something distinctive in the new Kantian moral theory that the connection with O'Neill's work does not enable us to grasp entirely. In the case of the new Kantian moral theory, the focus on practical reason is intended both to highlight the central role of the concept of "rational nature" in Kant's moral philosophy, and to make room for a more satisfactory account of the Kantian moral agent, an account that succeeds in showing the relevance of character for moral judgement. Once again, Herman's words help illustrate this aspect of the new Kantian moral theory: A great deal of recent criticism of Kantian ethics has targeted its thin conception of the person, the inadequacy of its idea of character, its stultifying restriction on admissible moral motivation, and its mistaken views about

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the place of impartial moral requirement in a good human life. These criticisms live off the mistaken view of moral judgment as involving algorithmic employment of tests, and its attendant picture of the moral agent as seeking to bring her will into conformity with principles of duty. With this view of judgment out of the way, it becomes possible to see that Kant's notions of virtue and character are in no way peripheral to the understanding of moral judgment and action. We are able to consider the nature of a Kantian moral agent—what motives, feelings, thoughts, and commitments guide her deliberations and actions. There is then room to develop an account of moral personality that places moral activity within the ongoing practical commitments of a good life. 9 Thus, while the analysis of the process of deliberation and moral judgement is at the core of the new Kantian moral theory, it is the reference to human nature, broadly understood, that better explains the distinctiveness of the new approach. Certainly, the thesis of the centrality of the concept of "human nature" in ethics, controversial as it is when attributed to Kant, loses something of its implausibility when we take it to mean "rational nature" and come to understand the deep revision of the concept of reason effected by Kant himself. Still, such a formulation is likely to surprise more than one scholar, for at least verbally it clearly confronts the conventional reading of Kant, who repeatedly rejects any kind of reference to the particularities of human nature within ethics. Now, if we ask for the origin of this approach to Kant's ethics, we would find that for many proponents a confessed common source is to be found in John Rawls's Lectures on Ethics at Harvard beginning in the 1960s, lectures that O'Neill herself had the opportunity to attend. In what follows, I have tried to explore the extent of Rawls's influence on the development of this "new Kantian moral theory" by highlighting some aspects of Rawls's own interpretation of Kant, and demonstrating its connection to the characteristic tone and topics raised by the new Kantians. Rawls's influence on the new Kantian moral theory

According to some of his former students, at the time when Rawls delivered his lectures on the history of ethics at Harvard, scholars rarely paid attention simultaneously to the philosophical arguments and to the history of philosophy, much less attempted to show the relevance of the history of ethics for contemporary issues. Meta-ethics largely dominated the academic discussion, and it was unusual to address substantive ethical problems. Against this background, Rawls's lectures "offered reconstructions of classical arguments that reclaimed their power and their capacity to inform contemporary concerns."1 2

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It was precisely this approach to the history of philosophy that would influence the future work of many of Rawls's students. This influence has now become particularly evident in the work of some prominent scholars who are advancing this new interpretation of Kant's ethics. Thomas Hill, Barbara Herman, Christine Korsgaard, and Andrews Reath all studied under Rawls and share his basic commitment to discuss the history of ethics in a way relevant to the contemporary world. Besides being specifically devoted to Kant's moral philosophy, they seem likely to echo Rawls's own approach to Kant in significant ways. As Korsgaard observes, Rawls's influence on contemporary Kantian scholarship has been both methodological and substantive, though we should not artificially separate the two aspects. While Rawls's methodological influence on contemporary Kantian scholarship lies in his conviction that textual analysis and philosophical reflection on a philosopher's work should go together, Rawls's substantive influence relates radically to his conception of Philosophy as a deeply practical project, 13 an approach that could itself be considered the development of a possibility embedded in Kant's own philosophy. Philosophy as a deeply practical project Indeed, according to the interpretation developed by Susan Neiman—also a former student of Rawls—Kant's transformation of the concept of reason would amount to a new conception of philosophy not so much as a theoretical undertaking—directed to the acquisition of knowledge—as a practical and moral one,1 4 where the important thing becomes the possible contribution of philosophy to the fulfillment of the human vocation. Rawls's attitude toward philosophy is, in this sense, undeniably Kantian, since Rawls's own theory clearly aims at the realization of a moral ideal. From this perspective, it credits Kant's asserted "Primacy of Practical Reason." Asserting the primacy of practical reason, indeed, means to orientate one's thinking according to an ideal of reason, such that the leading question becomes this one: how must we think of ourselves and of the world in order to fulfill our moral vocation—to shape a just society? Rawls's doctrine meets this requirement. Yet, does this suffice to qualify a doctrine as Kantian? As Rawls himself points out: "Kant's view is marked by a number of dualisms, in particular, the dualisms between the necessary and the contingent, form and content, reason and desire, and noumena and phenomena. To abandon these dualisms as he meant them is, for many, to abandon what is distinctive in his theory." However, Rawls goes on to explain why he disagrees with this interpretation, arguing that Kant's "moral conception has a characteristic structure that is more clearly discernible when these dualisms are not taken in the sense he gave them but reinterpreted and their moral force reformulated

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within the scope of an empirical theory. One of the aims of A Theory of Justice was to indicate how this might be done."1 6 While we can certainly speak of similarities between Kant's and Rawls's conceptions of philosophy, Rawls's comments signal the existence of a clear difference between them. This difference points at the particular twist Kant's philosophy is likely to receive when developed against the American philosophical tradition. Actually, the text that has just been quoted suggests that Rawls considers the reinterpretation of Kant's dualisms an essential condition for making Kant's view effective as a moral ideal—perhaps in Rawls's own theory. Now, it is Rawls himself who observes that such a reinterpretation would bring his own theory closer to Dewey. Thus, in the first of his Dewey Lectures, after praising Dewey's attempt to adapt what is valuable in Hegel's theory "to a form of naturalism congenial to our culture," he added: "There are a number of affinities between justice as fairness and Dewey's moral theory which are explained by the common aim of overcoming the dualisms in Kant's doctrine." 1 7 Indeed, very much in a Deweyan spirit, overcoming the Kantian dualisms amounts to assuming, as already present in the public culture, many of the requirements of a conception of justice. As Rawls asserts, "On the Kantian view that I shall present, conditions for justifying a conception of justice hold only when a basis is established for political reasoning and understanding within a public culture." That basis is specifically provided by the American political tradition: We are not trying to find a conception of justice suitable for all societies regardless of their particular social or historical circumstances. We want to settle a fundamental disagreement over the just form of basic institutions within a democratic society under modern conditions. We look to ourselves and to our future, and reflect upon our disputes since, let's say, the Declaration of Independence. How far the conclusions we reach are of interest in a wider context is a separate question.1 9 Rawls's conception of justice therefore seeks to articulate the ideals already implicit in the common sense or the public culture of a specific democratic society. Not aiming at the universal as such, his conception is designed to satisfy the requirements of justice within a particular political tradition. For this very reason, Rawls's attempt amounts to a justification of social institutions through a method certainly indebted to the Kant of the transcen20 dental deductions. It could also, however, be considered equally close to Hegel or Dewey, in that Rawls applies that justification procedure to social institutions in a way that takes a certain political tradition for granted:

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What justifies a conception ofjustice is not its being true to an order antecedent to and given to us, but its congruence with our deeper understanding of ourselves and our aspirations, and our realization that, given our history and the traditions embedded in our public life, it is the most reasonable doctrine for us. We can find no better basic charter for our social world. 2 2 In this way, the primacy of practical reason, an unequivocal Kantian feature of Rawls's political philosophy, receives a cultural specification. The transcendental philosophy is to accomplish its justifying mission within a particular political culture. Accordingly it is not surprising that Rawls rejects the charge of "formalism" usually directed against Kant since Hegel first made his case. Indeed, reading Kant from within a certain political culture—that is, reading him in a Hegelian key—overcomes that objection. All the content needed by practical reason is already present in the public culture. It seems to me that this feature of Rawls's interpretation of Kant is also present in the new Kantian moral theory. Whenever these authors reject the traditional objection of formalism, the underlying assumption is that there is no need to read Kant in an abstract way; it is equally possible to read him from within a particular culture. On this view, the agent does not need to deprive herself of her moral experience when she is engaged in the process of moral deliberation and judgement, that is, when she is to make use of the categorical imperative. This point is particularly clear in Barbara Herman's account of moral judgement: An agent who came to the GI [Categorical Imperative] procedure with no knowledge of the moral characteristics of actions would be very unlikely to describe his action in a morally appropriate way. Kant's moral agents are not morally nai've. In the examples Kant gives of the employment of the GI procedure (G422—423), the agents know the features of their proposed actions that raise moral questions before they use the GI to determine their permissibility. It is because they already realize that the actions they want 23 to do are morally questionable that they test their permissibility. Now, if we ask where this antecedent knowledge comes from, Herman's answer ultimately manifests the cultural link that distinguishes this new Kant: It is useful to think of the moral knowledge needed by Kantian agents (prior to making moral judgments) as knowledge of a kind of moral rule. Let us call them "rules of moral salience." Acquired as elements in moral education, they structure an agent's perception of his situation so that what he perceives is a world with moral features. They enable him to pick

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out those elements of his circumstances or of his proposed actions that require moral attention.2 4 Of course, while Rawls's position, as conveyed in the Dewey Lectures, could be read as implying an abandonment of the universal scope of a Theory of Justice, to focus on some problems proper to modern liberal democracies—and thus to a particular culture—Herman's point is a more general one, playing at a more basic level: the categorical imperative works solely on the assumption of some rules of moral salience, no matter the culture. And yet, since these rules, according to Herman, are acquired "as elements in moral education," each individual would find those rules embedded in his/her culture. In other words: although Herman's point, unlike Rawls's, is a universalist one, Herman's non-formalistic way of reading Kant surely has been inspired by Rawls's own sensibility for the cultural embodiment of reason, for, after all, 25 the rules of moral salience may be defined differently in different cultures. Herman's "rules of moral salience," however, are not the only aspect of the new Kantian Moral Theory in which the cultural linkage resulting from the Kant-Dewey "marriage" becomes evident. Another aspect can be found in the frequent references to the plausibility of a theory as a decisive factor for its acceptance. "Plausibility" is, indeed, the word most often employed by these authors to describe their goal, both as Kantian scholars and moral philosophers. The new Kantians seek to offer a reconstruction of Kant's moral 26 philosophy that is, as Thomas Hill puts it, "as plausible as possible," in order to put it in dialogue with contemporary ethics. Both aspects are summarized in Barbara Herman's description of her own approach to Kant's texts: an attempt to provide an interpretation "which makes sense of the text and makes the texts make sense."2 8 Now, as Thomas Hill points out, "Kant's ethics is most plausible when seen as a less comprehensive account of morality than he thought;" plausibility, then, demands "sympathetic reconstruction and extension of certain core Kantian ideas but also critically abandoning some of Kant's ideas on particular issues that prove to be untenable and unwarranted by Kant's more basic theory." Hill's remark seems a clear echo of Rawls's previously quoted justification for reinterpreting and reformulating Kant's dualisms. A remarkable example of this tendency to solve or mitigate Kant's dualisms is Korsgaard's interpretation of the phenomenon-noumenon distinction in terms of two different standpoints, an interpretation that deprives the distinction of some of those "scandalous" ontological reverberations, which, in Herman's words, make it "unacceptable to us" : This view is not, as so many have supposed, an ontological or metaphysical theory according to which we exist simultaneously in two different

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"worlds", one somehow more real than the other. As I understand it, it goes like this: In one sense the world is given to us, it appears to us, and we are passive in the face of it. We must therefore think of the world as generating the appearances, as giving them to us. The world insofar as it appears to us is phenomenal; the world insofar as it generates the appearances is noumenal. We can only know the world as phenomenal, that is, insofar as it is given to sense, but we can think of it as noumenal. So there are not "two worlds", but rather one world which must be conceived in two different ways. And all of these points apply above all to ourselves. When we view ourselves as phenomena, we regard everything about ourselves, including inner appearances such as thought and choices, as parts of the natural world, and therefore as governed by its laws. But insofar as we are rational, we also regard ourselves as active beings, who are the authors of our thoughts and choices. 3 2 33

While Korsgaard's interpretation certainly finds support in Kant's texts, her conciliatory approach does contrast with other well-known interpretations. We just need to think of Jaspers, for whom the phenomenon-noumenon distinction meant a contradiction bound to arise precisely because the philosophical idea Kant wanted to express cannot be held in any logical expression. For Jaspers it was this tension that made Kant's thinking "a matrix of seemingly inexhaustible possibilities." Indeed, one of these possibilities— but only one of them—is what we are considering right now. And as a particular interpretation among others, it will inevitably prove controversial among other Kant scholars. What I would like to highlight in regard to the new Kantian moral theory, however, is what I take to be its distinctive hallmark: namely, its explicit reference to the ordinary and common experience as hermeneutical keystone, able to develop a contemporary version of Kant's ethics that can be put in dialogue with other contemporary ethical theories. 3 6 While the allusion to common experience could be taken as an invitation to figure out how the teleological concepts we use in ordinary life to articulate our moral experience can be justified within a Kantian framework, 3 7 it can also imply a more cultural claim. As one scholar recently pointed out, the allusion to common experience as the ultimate reference of philosophical reflection is quite characteristic of twentieth-century philosophy. At the same time, however, the meaning of "common or ordinary experience" is in many ways elusive, and always open to interpretation. What seems moral common sense within a certain culture can look otherwise in a different one. There is no theoretically neutral conception of everyday life.3 9 From this perspective, Rawls's decision to develop his own proposal against the background of the American political tradition proved a wise

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methodological restriction. Indeed, it is perhaps because of the implicit particularization of his otherwise abstract discourse that Rawls's theory has proven, in fact, to be of interest to people coming from different traditions. What the latter suggests is that Kant's transcendental deduction works against the background of particular experiences, to the extent that we succeed in highlighting their essential features. Of course, the identification of those essential features remains in need of further explanation, but Rawls can skip this elucidation since his declared aim is practical, not epistemological. Particularly, his Political Liberalism is expressly designed to leave such epistemological and metaphysical questions aside. We could assume that, insofar as the new Kantian moral theory follows the practical path, it can also leave those questions aside. But does the reference to "plausibility" within the context of the new Kantian moral theory have a function similar to Rawls's reference to the American political tradition? In other words: is it backed by a similar transcendental deduction? What is it that makes a theory plausible? Actually, the only criteria of plausibility that an ethical theory should meet, according to Hill, is its compatibility with scientific knowledge. Scientific knowledge, indeed, appears as a major feature of our contemporary world view that any plausible moral theory has to keep in mind: "Moral theory is not science, of course, but any moral theory that is worthy of contemporary support should, in my opinion, at least be compatible with empirical explanations regarded as well established in the current 41 scientific community." What counts as well established in the current scientific community is, of course, as changing a matter as what counts as current community. Given the uncertainty of scientific facts and their dependence on conventional interpretations, at least in some aspects moral theory must be open to fluctuation along with those changeable assumptions. Now, insofar as these references to our cultural and scientific practices represent a distinctive feature of the new Kantian moral theory, what this theory suggests is a revision of the role played by the empirical in Kant's own moral theory. Such a revision is intended to make sense of the otherwise "too dry" pure moral theory, developed by Kant in the Groundwork and the Second Critique. By contrast, the so far somewhat neglected text of theMetaphysics of Moralsis receiving increasing attention. The idea is not so much to blur Kant's distinction between the pure and the empirical in ethics, but to show how both aspects interact in practice while maintaining what we could call a "Kantian framework." Kant's moral constructivism The distinctive features of the "Kantian framework" as assumed by the new Kantian moral theory can, once again, be traced back to Rawls's view of

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Kantian moral constructivism, as opposed to "rational intuitionism." Rawls regards "rational intuitionism" as the dominant moral theory "from Plato and Aristotle onward until it was challenged by Hobbes and Hume"; questionably he uses the same title to refer to "the view exemplified in the English tradition by Clarke and Price, Sidgwick and Moore, and formulated in its 43 minimum essentials by W.D. Ross." Rawls describes "rational intuitionism" as characterized by two features: "first, the basic moral concepts of the right and the good, and the moral worth of persons, are not analyzable in terms of nonmoral concepts (although possibly analyzable in terms of one another); and, second, first principles of morals (whether one or many), when correctly stated, are self-evident propositions about what kinds of considerations are good grounds for applying one of the three basic moral concepts, that is, for asserting that something is (intrinsically) good, or that a certain action is the right thing to do, or that a certain trait of character has moral worth."4 4 By contrast, Kant's moral theory requires "that there is no such order of given objects determining the first principles of right and justice among free and equal moral persons." Otherwise the ethical principle would be heteronomous, while for Kant the ethical principle must be autonomous. At this point, however, two clarifications are needed. In the first place, Rawls observes that "a Kantian doctrine of autonomy need not deny that the procedures by which first principles are selected are synthetic a priori," provided that such procedures be "suitably founded on practical reason, or, more exactly, on notions which characterize persons as reasonable and rational." In other words, we must distinguish between the first principles and the procedures to select them: while the first are entirely a priori, the second can include some appeal to experience. A further clarification regards the so-called "moral facts": to call a moral doctrine "constructivist" does not mean to consider that "moral facts, much less all facts, are constructed. Rather, a constructivist procedure provides principles and precepts that specify which facts about persons, institutions, and actions, and the world generally, are relevant in moral deliberation. Those norms specify which facts are to count as reasons" ; but the facts themselves are already "available in our everyday experience or identified by theoretical reason." 4 8 While we may once again recognize in those words the claim that moral theory is not supposed to replace everyday moral experience but rather to give an account of it, we could nevertheless still ask how we come to qualify a fact as a "moral fact," in the absence of any kind of "moral intuition." Barbara Herman's notion of "rules of moral salience," to which I referred above, could provide a provisional answer to this problem. But if we ask whence the rules of moral salience come, we have but two options left: either admitting a

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kind of moral intuition, or else developing a more or less sophisticated naturalistic account. In her article "Making Room for Character," Barbara Herman explores this latter path, 49 developing a complex account of the origin of those rules that connects them with the natural history of desire. While the account as such may not easily be classified as Kantian, it certainly manages to be very plausible. Without entering in this problem himself, Rawls did argue that Kant's moral doctrine can be described as constructivist because the content of the moral law, and the relevance of whatever moral facts we find in our ordinary experience, is to be determined as a result of applying the Categorical Imperative procedure. Rawls sees this procedure as working in four steps. First of all, "we have the agent's maxim, which is, by assumption, rational from the agent's point of view"; he specifies further that "the maxim is also assumed to be sincere" and its form is that of a particular hypothetical imperative: "I am to do X in circumstances C in order to bring about Y." The second step would be the generalization of the maxim to be achieved: "Everyone is to do X in circumstances C in order to bring about Y." The third step introduces the reference to a law of nature: "everyone always does X in circumstances C in order to bring about Y (as if by a law of nature)." And finally, Rawls says, we would be required to add the law of nature we ourselves have imagined to the existing laws of nature, in order to see what kind of world would arise. At this point the test would consist in asking ourselves two things: (a) Would I really be able to act on my maxim within the perturbed social world? and (b) Would I possibly be willing to act on my maxim in the perturbed social world?50 Now, in order to overcome some difficulties arising from the analysis of Kant's own examples, Rawls suggests introducing two ideas: the notion of "true human needs," along with that of "two limits of information." Taken together, argues Rawls, these conditions require that we "see ourselves as proposing the public moral law for an ongoing social world enduring over time." Now, while the introduction of the notion of "true human needs" is intended to avoid formalism, the requirement of limiting the information, which immediately suggests Rawls's own "veil of ignorance," is intended to "enable us to see what Kant means when he says that the moral law discloses 54 our freedom to us." The disclosure of freedom takes place precisely to the extent that we maintain the priority of pure practical reason over empirical practical reason. Thus, while empirical practical reason is at work when the agent formulates his or her maxim, the imposition of restrictions on empirical practical reason by introducing the universalization requirement discloses an essential feature of the human agent: he is not merely a rational agent, able to formulate

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hypothetical imperatives, but a reasonable agent, able to subject himself to a universal law. Accordingly, we can imagine a particular agent coming to the GI procedure with a particular set of inclinations, desires, and ends that he would want to realize, deliberating about the best possible means to realize those ends according to "The Hypothetical Imperative," and, as a result, generating a particular maxim in the form of a hypothetical imperative. Now, this is the maxim, which, once subjected to the universalization requirement, brings about the moral content, in terms of permissibility or impermissibility of the particular action. Beyond this, what the whole procedure shows is that the human agent is endowed with two different powers—the rational and the reasonable—which reveal the underlying conception of the human person: namely, "the conception of free and equal persons as reasonable and rational, a conception that is mirrored in the procedure."5 5 Rawls insists that this conception of the person is not constructed, but rather is mirrored in the GI procedure, which is not constructed either. Indeed, according to him, the GI procedure is merely laid out, since we must take it as implicit in everyday moral reasoning. This is something affirmed by Kant himself in several places, most noticeably in the Second Critique, when he speaks of the "Typic of Moral Judgment." Thus, both the GI procedure and the conception of the person it mirrors—along with the conception of a society of such persons—are at the basis of Kant's moral constructivism.5 7 For Rawls, then, Kant's moral constructivism follows straightforwardly from his demand for autonomy, and thereby from a conception of the person whose denning characteristics are freedom and equality. Both features become particularly evident in the third formulation of the Categorical Imperative, the Kingdom of Ends, which most properly represents the moral ideal elicited from Kant's moral theory. But while freedom and equality, as denning characteristics of persons, are fully disclosed in Kant's explanation of the Kingdom of Ends, the basic features of the person as reasonable and rational, capable of an effective sense of justice and of pursuing a conception of the good, are already present in the formula of Universal Law. "Moral personality' ' is the term Rawls employs to refer to these moral powers:' 'The first power is the capacity for an effective sense of justice, that is, the capacity to understand, to apply and to act from (and not merely in accordance with) the principles ofjustice. The second moral power is the capacity to form, to revise, and rationally to pursue a conception of the good." 5 9 Unlike the capacity for justice, the idea of "pursuing a conception of the good" could sound not entirely Kantian. Yet in his article "Themes in Kant's Moral Philosophy," after showing how the Categorical Imperative works, Rawls suggests the several ways in which the concept of good finds a proper place in Kant's moral theory: (1) the conception of happiness as organized by The (as opposed to a particular) Hypothetical Imperative; (2) the

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fulfillment of true human needs;60 (3) the good as fulfillment in everyday life of what Kant calls "permissible ends"; (4) good will, as the supreme (although not complete) good of persons; (5) the good as the object of the moral law, which is the realm of ends; (6) Kant's conception of the complete or highest good.6 2 Through the specification of the various ways in which the concept of good is to be found in Kant's ethics, Rawls intended to clarify the way in which the Reasonable—which issues the principles of justice by following the Categorical Imperative—supervenes over the Rational—thereby making it possible to speak of a "moral good." Accordingly, although the agent comes to the GI procedure with certain conceptions of the good, what counts properly as a "moral good" would be a result of the procedure, that is, a result of the restrictions imposed by the Reasonable over the Rational. Thus, by suggesting that these two uses of reason—the Rational and the Reasonable—were implicit in Kant's moral theory, Rawls was highlighting, against the background of his own theory of justice, the practical implications of the Kantian concept of the (human) person. He holds this conception of the person as playing a central role in Kant's moral philosophy. At the same time, he also made clear that, "unless this conception (of the person) and the powers of moral personality it includes—our humanity—are animated, as it were, in human beings, the moral law would have no basis in the world."6 5 As the example he quotes suggests, by saying this he was trying to stress the fact that reason—or humanity for that matter—must be embodied in real, particular, human beings. Therefore it is not humanity in general, but humanity realized in particular human beings, that makes morality something real. Now, since the source of particularization in Kant comes mainly from the empirical side of nature, the latter demand brings us back to the importance of the empirical. As has already been pointed out, the attempt to show how the empirical works within Kant's ethics is a distinctive mark of the new Kantian moral theory. The attempt, of course, has to face the traditional objections of formalism and rigorism, particularly challenging when we deal with the problem of moral motivation. Before taking up this topic, however, I would like to point out that the main aspects of the Rawlsian interpretation of Kant that I have brought up here are easily recognizable in the writings of the new Kantians.

Human nature and practical reason In fact, both Rawls's focus on the person and moral personality, on the one hand, and his account of practical rationality developed in terms of the distinction between the Reasonable and the Rational, on the other, are two

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noticeable characteristics of the new Kantian moral theory. Thus, Thomas Hill's introduction of the "Hypothetical Imperative" as a principle that works in parallel, instead of colliding, with the "Categorical Imperative," represents an attempt to clarify Kantian practical deliberation, largely in 67 debt to Rawls's own distinction. The same could be said of Korsgaard's characterization of both the hypothetical and categorical imperatives as con68 stitutive principles of actions. Likewise, the noticeable shift of attention from the Formula of Universal Law to the Formula of Humanity—especially evident in Korsgaard—could be interpreted in light of Rawls's discovery of the centrality of the person in Kant's moral philosophy, although it cannot be literally traced back to him. The latter is clear, for even if Rawls insisted on pointing at the conception of the person behind Kant's use of the categorical imperative, thereby suggesting the idea of rational nature as the source of value, he did not develop a particular argument for this point, based on the interpretation of Kant's Formula of Humanity. Incidentally, Rawls limited himself to pointing out that the Formula of Humanity should not be interpreted as introducing new requirements beyond those already made explicit in the formula of Universal Law. At the same time, he suggested that, as long as "humanity" is understood as "our pure practical reason together with our moral sensibility," the Formula of Humanity could not be interpreted in isolation from the Metaphysics of Morals. While in saying this, Rawls may have encouraged contemporary attempts to relate the Groundwork and the Metaphysics of Morals, it should be kept in mind that at that point he was taking humanity as synonymous with "moral personality." In doing so, however, he would depart from Kant, who had drawn a sharp distinction between humanity and personality. According to that distinction, humanity would include pragmatic, but not moral reason. Following Kant's distinction, however, as well as his definition of Humanity in terms of "the capacity to propose an end to oneself," Korsgaard would manage to relate the Formula of Humanity to a theory of value which is ultimately grounded in rational nature. According to her, then, the Formula of Humanity would command us to respect "the capacity for the rational determination of ends in general, not just the capacity for adopting morally obligatory 71 ends" (which would not be humanity, but personality): Humanity, completed and perfected, becomes personality, so that in treating the first as an end in itself we will inevitably be led to realize the second. Thus, in the Critique of Practical Reason, humanity in one's own person and personality are spoken of as if they were the same thing (G2, 87). But the distinctive feature of humanity, as such, is simply the capacity to take a rational interest in something: to decide, under the influence of reason,

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that something is desirable, that it is worthy of pursuit or realization, that it is to be deemed important or valuable, not because it contributes to survival or instinctual satisfaction, but as an end—for its own sake. 7 2 Now, focusing on the distinctive human capacity of "taking a rational interest in something," and, more precisely, on the fact that such capacity is not only good as an end, but also intrinsically valuable, Korsgaard advances an argument to show the implications of Kant's Formula of Humanity for the development of a theory of value. The argument is not without problems, though. It is certainly true that Kant himself sets the basis for a theory of value in the Groundwork, when he introduces the distinction between dignity and price, distinguishing further between market price and fancy price, and emphasizing that "autonomy is the ground of the dignity of human nature 74 and of every rational nature." However, the argument for an intrinsic value of humanity somewhat disconnected from personality (and morality) could sound surprising, given the intrinsic connection that Kant himself introduces between dignity and morality. Thus, he says: "morality, and humanity insofar as it is capable of morality, is that which alone has dignity." Along the same lines, at the beginning of the Groundwork, Kant had stated clearly that only a good will is to be regarded as intrinsicallygood. Korsgaard's argument for the intrinsic value of humanity, however, begins by taking into account the necessary connection between "reason'' and' 'good" in the following terms: "a rational action must be done with reference to an end that is good." Now, in Kant's account, it is not any prior knowledge of the good that provides us with a reason for acting, but rather it is our having a sufficient reason for (doing) something that justifies a particular end as good: "a good end is one for which there is a sufficient reason." With that in mind, Korsgaard points to the passage where Kant argues for the Formula of Humanity by providing a kind of regressive account of "reasons for acting" until he finds a "sufficient reason" only in the rational being as the only being who represents his or her existence as an end in itself. Korsgaard posits that the reason for this claim lies in the very fact that in choosing any other object, a rational being not only takes that thing to be valuable for him (subjectively), but takes himself as necessarilyvaluable. In other words, Korsgaard maintains that: rational choice h a s . . . a value-conferring status. When Kant says: "rational nature exists as an end in itself. Man necessarily thinks of his own existence in this way; thus far it is a subjective principle of human actions" (G 429), I read him as claiming that in our private rational choices and in general in our actions we view ourselves as having a value-conferring status in virtue of our rational nature. We act as if our own choice were the sufficient condition of the goodness of its object: this attitude is built into (a subjective principle of) rational action.7 8

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Accordingly, Korsgaard's thesis rests in two considerations: (1) one does not choose something because she discovers some value in it. It is rather her choosing something what makes it valuable to her eyes. (2) This very operation involves taking oneself—one's rational nature—as the ultimate source of value. Although it is far from certain that Kant actually developed this argument, the argument as such is certainly Kantian, for the way it gives priority to the rational over the good. In doing so, it is certainly constructivist. At the same time, the focus on the agent involved in this kind of reasoning can be traced back to Rawls's own focus on the person and moral personality.

The issue of moral motivation As I suggested above, an important aspect of Rawls's influence on the new Kantians lies in the implicit invitation to review the role of the empirical in Kant's moral theory. This naturally leads our attention to the way the new Kantians respond to the objections of formalism and rigorism traditionally addressed to Kant's ethics. Here I shall solely focus on the more particular issue of moral motivation, which is somehow at the intersection of both problems. Thus, while alleged rigorism consists in the demand "to act from the motive of duty alone," formalism would impose the impossible requirement of acting because of the universality of the law, regardless of its content. Yet both things seem either undesirable (so Schiller's objection against acting from duty alone), or simply impossible—as Hegel pointed out in regard to the categorical imperative, and as the moral philosophers coming from an empiricist tradition have argued specifically in regard to motivation. Since the empiricist objection goes back to Hume's skepticism about practical reason, traditional Kantians have usually rejected the charge as missing the real point of Kant's position—namely, that pure practical reason does exist. In other words, in order to be practical, or to move to action, reason does not need any antecedent sensible feeling or expectation. Reason can move us to act by the mere representation of the law. Yet can a purely formal law be practical at all? At this point, all depends on understanding that the universal character of reason requires that it has to be determined by something equally universal. For Kant, this "something universal" is nothing other than the law. To the extent that we act according to the universal law, we are acting well. On the other hand, to the extent that we act according to a general—but not universal—principle, we are, however unnoticeably, letting something empirical get in the way. We are not acting as autonomous agents; we are acting badly. It seems to me that one cannot abandon this picture without abandoning Kant. Yet the picture should be purified of some misunderstandings implied

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in the expression, "acting from the motive of duty." Perhaps a good way to clarify those misunderstandings is to distinguish more clearly between the question of "the determining ground of morality" and the question of motivation in general. For Kant, the determining ground of morality, as just said, is the universality of the law, and this is also what Kant comprises under the notion of "duty." But Kant also distinguishes between duties according to their content, so that it must be possible to speak of motivation in a more qualified sense. In other words: in performing a duty of beneficence, we must certainly be determined by duty—and thereby, by some form of categorical imperative—but, at the same time, there must be something that allows us, as agents, to distinguish between the duty of beneficence and some other duties. I believe this is the question both Herman and Korsgaard have in mind when they place so much weight on Kant's distinction between "incentives (Triebfedern}"and "motives(Bewegungsgrund}." Kant introduces this distinction in the following passage of the Groundwork: The subjective ground of desire is an incentive; the objective ground of volition is a motive; hence the distinction between subjective ends, which rest on incentives, and objective ends, which depend on motives, which hold for every rational being. Practical principles are formal if they abstract from all subjective ends, whereas they are material if they have put these, and consequently certain incentives, at their basis.8 0 The former passage suggests that incentives are usually sensible, though it is not always so (think of the moral incentive). Their role is to instigate in us the possibility of an action. Now, any action is supposed to involve a maxim (subjective principle for action), which must be checked against the Categorical Imperative. Before doing so we are still at the level of empirical practical reason (recall Rawls). Only when we have checked the maxim against the Categorical Imperative, and ascertained its (possible) universalization, are we in a condition to determine our reason for themorallygood, because it is only then that the representation of the universal law can determine the universal nature of our reason, and only then that the so-called moral incentive properly arises. At this point, it is important to notice that, while it is the universality of the law—and thereby the Categorical Imperative—that determines reason, the Categorical Imperative finds its deliberative field within the material provided by the empirical practical reason, in the maxim of the action suggested by the incentive. Were it not for this maxim, and ultimately the original incentive for action, we could not have even applied the Categorical Imperative. According to Herman it is in the maxim where we should look for the proper motive for an action, because it is the maxim that shows what the particular

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reasons for an action are. Her account of "motives" as "reasons for acting," is thus to be opposed to the empiricist conception of "motives as desires"— where "desires" are taken as "causes," rather than as "reasons." 81 The same conclusion follows from Korsgaard's definition of motive as "an incentive plus a principle." In both cases we get a picture that permits us to maintain a legitimate diversity within the motive of duty—that is, acting from the motive of duty does not involve the neutralization of all significant features of moral character, as expressed in the virtues. Thus, Herman writes: The man of sympathetic temper responds to suffering and takes that response to give him a reason to help. Only then does he act from the motive of sympathy. An action that is done from the motive of duty is performed because the agent finds it to be the right thing to do and takes its rightness or requiredness as his reason for acting. He acts from the motive of duty with a maxim that has moral content. 8 3 Does Herman's and Korsgaard's move involve the rejection of any Kantian principle? It all depends on how one understands the last words in Kant's text quoted above: "Practical principles are formal if they abstract from all subjective ends, whereas they are material if they have put these, and consequently certain incentives, at their basis." Have they put a particular incentive at the basis of the Categorical Imperative? Or have they rather taken the incentive merely as the occasion to apply the Categorical Imperative? While there can surely be controversial points in their interpretation of Kant, it seems to me that the basic account of moral motivation they develop remains within a Kantian framework, at least as Rawls conceives of it. Thus he writes: Let's ask how the Cl-procedure exhibits the moral law as sufficient of itself to determine the will. Here we should be careful not to interpret this feature too strongly. I do not think Kant wants to say, and certainly he does not need to say, that the moral law determines all the relevant aspects of what we are to do. Rather, the moral law specifies a scope within which permissible ends must fall, and also limits the means that may be used in their pursuit, and this goes part way to make the moral law sufficient of itself to determine the will. Of course, particular desires determine which permissible ends it is rational for us to pursue, and they also determine, within the limits allowed, how it is rational for us to pursue them. This leeway I view as compatible with Kant's intentions.8 4 Now, the scope within permissible ends fall is the scope determined by the universalization procedure: if the maxim passes the test of universalization, the type of action reflected in the maxim is permitted. Otherwise it is

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prohibited. Yet the maxim was originally formulated on the basis of a particular incentive for action. In other words: incentives provide us with ends. We do not arrive at the Categorical Imperative without anything to pursue. And yet, according to Herman and Korsgaard, the incentive alone is not the motive for action. The motive is rather the maxim along with the incentive. By contrast, the determining ground of a. good action will be its possible universalization—its ability to become a universal law. On the other hand, if one determines oneself to act apart or against this possible universalization, one acts badly. How can this be possible, given that our universal reason can only be determined by a universal principle? According to Kant this happens because the human being "reverses the moral order of his incentives in incorporating them into his maxims." 8 5 In other words, instead of making one's desire of a certain good conditional to the fulfillment of the categorical imperative, one would make the fulfillment of the moral law conditional to the acquisition of that good. In Rawls's terminology, instead of subordinating the rational to the reasonable, one would be subordinating the reasonable to the rational.

Conclusion Rawls's approach to Kant may look controversial to those familiar with the conventional reading of Kant. This is not strange, since Rawls himself tried over the years to go beyond that conventional reading—largely based on Kant's Groundwork—to discover the ethical relevance of many of his other writings, whereby he could make his case for a more plausible Kant. If, as I have argued through this chapter, many central points of the new Kantian moral theory, can be explained in the light of Rawls's interpretation of Kant, many of the objections raised against the new Kantians could be clarified along the same lines: as a revision of Kant's ethical work, intended to make it look more plausible. To what extent the resulting Kant can still be called "Kantian" in the old sense remains an open question.8 6

Notes 1.

2.

See Robert B. Pippin, "On Allen Wood's Kant's Ethical Thought," Inquiry 43 (2000); Robert B. Pippin, "A Mandatory Reading of Kant's Ethics?" Philosophical Quarterly 51.204 (2001), 386-93; and Donald H. Regan, "The Value of Rational Nature," Ethics 112 (2002), 267-91. A good account of the usual criticisms addressed to Kantian ethics can be found in Thomas Hill, Dignity and Practical Reason in Kant's Moral Theory (Ithaca, NY: Cornell University Press, 1992) (hereafter DPR); see also Barbara Herman, The

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3. 4. 5. 6. 7.

8.

9. 10. 10. 11. 12. 13.

14.

15. 16. 17. 18. 19. 20.

21. 22. 23. 24. 25.

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Practice of Moral Judgment (Cambridge, MA: Harvard University Press, 1993) (hereafter PMJ). C. Korsgaard, Creating the Kingdom of Ends (Cambridge, UK: Cambridge University Press, 1996), xii (hereafter CKE). See especially T. Hill, "The Hypothetical Imperative," in DPR, 1—17 and C. Korsgaard's "The Locke Lectures," unpublished. See especially C. Korsgaard, "Kant's Formula of Humanity," in CKE, 106—32. PMJ, ix. Thus, referring to the charges of formalism and rigorism, O'Neill wrote: "As I worked on Kant's writings, I came to believe that neither of these charges can be made to stick. The Categorical Imperative can guide action and does not lead to rigorism." (Onora O'Neill, Acting on Principle: An Essay on Kantian Ethics (New York: Columbia University Press, 1975), vii) For a criticism of this aspect, though not from a Kantian perspective, see Regan, "The Value of Rational Nature." PMJ, x. SeeLHMP. Thus, Thomas Hill refers to Rawls Lectures at Harvard in 1962 (DPR, 17); Barbara Herman refers to his Lectures in 1977 (PMJ, 50). C. Korsgaard, B. Herman, and A. Reath (eds), Reclaiming the History of Ethics: Essays for John Rawls (Cambridge, UK: Cambridge University Press, 1997), 183. Ibid., 1. See C. Korsgaard, "Rawls and Kant: On the Primacy of the Practical," in Proceedings of the Eighth International Kant Congress, Vol. I (Milwaukee: Marquette University Press, 1995), 1165-73. See S. Neiman, The Unity of Reason (New York: Oxford University Press, 1994). Neiman argues that Kant transformed the concept of reason, disconnecting it from knowledge, to get a pure regulative concept. J. Rawls, "A Kantian Conception of Equality," reprinted in CP, 254-66 (264). CP, 264. J. Rawls, "Kantian Constructivism in Moral Theory," reprinted in CP, 303—58 (304). CP, 305. Ibid., 305-6. On the concept of transcendental deduction, see D. Henrich, "Kant's Notion of a Deduction and the Methodological Background of the First Critique," in E. Forster (ed.), Kant's Transcendental Deductions: The Three Critiques and the "Opus Postumum" (Stanford: Stanford University Press, 1989), 29—46. See R. Pippin, Idealism as Modernism: Hegelian Variations (Cambridge, UK: Cambridge University Press, 1997). Rawls, "Kantian Constructivism," in CP, 306—7. PMJ,75. Ibid., 77. In suggesting that Rawls's sensibility for the cultural embodiment of reason may have some influence on Herman's reading of Kant, I do not deny the existence of a

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26. 27.

28. 29. 30. 31. 32.

33. 34.

35. 36.

37. 38.

The Legacy of John Raw Is more basic difference between the late Rawls and Barbara Herman. Thus, in PL, John Rawls claims that the normative basis of our conception ofjustice is based on the contingent fact that we have a liberal political culture. According to Kyla Ebbels Duggan, with whom I have contrasted this point, Herman would not like to go so far. Herman would still claim—in a clear Kantian manner—that there are principles which apply to all, regardless of any kind of cultural differences. I would like to thank the anonymous referee for asking me to clarify this point. T. Hill, Human Welfare and Moral Worth: Kantian Perspectives (Oxford, UK: Clarendon, 2002), 279. Thus, Thomas Hill describes his project as follows: "My own project for some time has been to see how far Kant's basic moral theory, properly understood and modified as necessary, can be made plausible as at least a candidate for serious consideration in contemporary philosophical discussions." (HWMW, 310) SeePAfJ, viii. HWMW, 309. Ibid.,310. PMJ, ix. CKE, xi. Generally, in Korsgaard's interpretation it is not entirely clear whether she ascribes the distinction between phenomenon and noumenon to the distinction between understanding and reason in general, or, rather, to the distinction between theoretical and practical reason. While the text just quoted seems to support the first option, at other times Korsgaard seems inclined to ascribe the noumenal perspective merely to practical reason. Although the latter approach is in tune with Kant's asserted primacy of practical reason, it would make it difficult to defend the unity of reason. (See Neiman, The Unity of Reason, 143) See Kant's argument in Groundwork, Part III, 4:45 Iff Phenomenon and thing in itself are untenable notions from the standpoint of objective knowledge, but in their failure they are indispensable. If they are taken as tangible entities, they lead to a distortion. Two worlds arise, one in the foreground, the other in the background. The two are related but each seems to have a separate existence of its own. The background world becomes a realm of phantasms, whose contents all stem from our world. But for Kant there is only one world. What is touched upon in transcending thought is not another world, but no world at all. And insofar as it exists, it exists in this nonworld. A theory of two worlds is not Kantian, but only an inevitably contradictory mode of expression. (K.Jaspers, Kant (New York: Harcourt Brace, 1962), 39) Jaspers, Kant, 19. "Charity directs us, when interpreting a theory, to prefer readings that make it more plausible unless textual considerations to the contrary are compelling. All the more, this policy makes good sense if our aim is to develop a contemporary version of the theory in question." (HWMW, 266) Korsgaard's references to teleology, for instance, invite us to follow this line. S. Rosen, The Elusiveness of the Ordinary: Studies in the Possibility of Philosophy (New Haven: Yale University Press, 2002).

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41. 42.

43. 44. 45. 46. 47. 48. 49.

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See Rosen, The Elusineness of the Ordinary, 100. In this chapter, Rosen contrasts the underlying assumptions of Aristotle and Kant regarding everyday life. Reflecting the ordinary sense of our moral terms, I take it, is a prima facie, but by no means decisive, consideration for including a particular conception (e.g. of conscience) in our moral theory. An entirely revisionist moral theory is unlikely even to get a hearing, but there are many possible considerations for not automatically adopting current (or even persistent) "common sense." For example, it may presuppose what is contrary to (not just beyond) our best scientific knowledge. (HWMW, 297-8) HWMW, 287. I think that it is at least controversial to include Aristotle along with, say, Moore, because the former did have a concept of practical reason, which puts him, in certain aspects, closer to Kant than to the other intuitionists. Perhaps the division of the history of ethics between intuitionists and constructivists is too rough to be entirely fair. It assumes that reason must be either intuitive or merely regulative. Yet for many centuries both aspects were supposed to play a role in the single faculty of reason. What the ancients understood by nous and dianoia, later called intellectus and ratio, were two dimensions of the same intellectual power. As two different dimensions of a single intellectual faculty, ancient and medieval reason find no proper equivalent in the modern theory of knowledge; as a result, in ethical matters either one favors an intuitionist approach, or a constructivist one. But this either/or was not as clear in pre-modern ethics. Rawls, "Kantian Constructivism," 343. Rawls, "Kantian Constructivism," 343—4. Ibid., 345. Ibid., 346. J. Rawls, "Themes in Kant's Moral Philosophy," in Forster (ed.), Kant's Transcendental Deductions, 101. Ibid. Much of the work of moral judgment takes place prior to any possible application of rules in the eliciting of the relevant moral facts from particular circumstances . . . The central difficulty for Kantian theory comes from the identification of the aspect of character that makes moral judgment possible with a capacity that involves, or requires for its development, the nonrational faculties. But if we are ever to have a Kantian ethics liberated from its noumenal baggage, this is just the sort of fact that must be accommodated . . . I believe that the key to getting this right involves rethinking the basic relation between desire and motive: the way desires are or can be the occasion for motives and the way rational motives in turn affect the structure of natural history of desire. (B. Herman, "Making Room for Character", in Stephen Engstrom and Jennifer Whiting (eds), Aristotle, Kant, and the Stoics: Rethinking Happiness and Duty (Cambridge, UK: Cambridge University Press, 1996), 36, 37) See Rawls, "Themes," 82-4. The first limit is that we are to ignore the more particular features of persons, including ourselves, as well as the specific content of their and our final ends and

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desires (4:433). The second limit is that when we ask ourselves whether we can will the perturbed social world associated with our maxim, we are to reason as if we do not know which place we may have in the world. (Rawls, "Themes," 86) 52. Rawls, "Themes," 86. Herman has criticized the requirement of publicity. She argues that it introduces "a new locale of moral opacity." And asks: "Why should publicity be determinative? What reason do we have for thinking that in satisfying publicity under universalization a maxim has universal form?" (PMJ, 227) In her view, "the publicity requirement is an expression of a more basic value claim." 53. "Of course for this idea to work, we require an account for those needs. And here certain moral conceptions, rooted in our shared moral sensibility, may be involved." (Rawls, "Themes," 86) 54. Ibid. 55. Ibid., 99 56. According to Kant, "this is how even the most common understanding judges" (CPrR 5: 70). He explains further: for the law of nature always lies at the basis of its most ordinary judgments, even those of experience. Thus it has the law of nature always at hand, only that in cases where causality from freedom is to be appraised it makes that law of nature merely the type of a law of freedom, because without having at hand something which it could make an example in a case of experience, it could not provide use in application for the law of a pure practical reason. (CPrR 5: 70) 57. Rawls, "Themes," 99. 58. By a kingdom I understand a systematic union of various rational beings through common laws. Now since laws determine ends in terms of their universal validity, if we abstract from the personal differences of rational beings as well as from all the content of their private ends we shall be able to think of a whole of all ends in systematic connection (a whole both of rational beings as ends in themselves and of the ends of his own that each may set himself), that is, a kingdom of ends, which is possible in accordance with the above principles. For, all rational beings stand under the law that each of them is to treat himself and all others never merely as means but always at the same time as ends in themselves. But from this there arises a systematic union of rational beings through common objective laws, that is, a kingdom, which can be called a kingdom of ends (admittedly only an ideal) because what these laws have as their purpose is just the relation of these beings to one another as ends and means. (Kant, Groundwork, Part II, 4:433) 59. Rawls, "Kantian Constructivism," 313. 60. As it was pointed out before, the second conception is designed expressly to meet a need of reason: to have objective content. For this, however, Rawls had to introduce the publicity requirement. Barbara Herman has criticized this point. (See PMJ, 227) 61. This points at "the social world that would come about (at least under reasonably favorable conditions) if everyone were to follow the totality of precepts that result

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62.

63.

64. 65. 66. 67. 68. 69.

70. 71. 72. 73.

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from the correct application of the Cl-procedure." It is this social world which defines Rawls's idea of a "moral conception": "a moral conception is not to revolve around the good as an independent object, but around a conception of the right as constructed by our pure practical reason into which any permissible good must fit." (Rawls, "Themes," 93) "I shall use the secular term 'realized realm of ends,' and I assume that his complete good can be approximated to in the natural world, at least under reasonably favorable conditions. In this sense it is a natural good, one that can be approached (although never fully realized within the order of nature)." (Rawls, "Themes," 90—4) Most likely, Andrews Reath's clarification of the double meaning — secular and religious—of Kant's notion of the "highest good," followed by an argument which shows that only the first one is really consistent with Kant's definition of a practical end, could also be in debt to Rawls. In characterizing human persons I have used the phrase "reasonable and rational." The intention here is to mark the fact that Kant uses verniinftig to express a full-bodied conception that covers the terms "reasonable" and "rational" asweoftenusethem.. . It is useful to use "reasonable" and "rational" as handy terms to mark the distinction that Kant makes between the two forms of practical reason, pure and empirical. The first is expressed as an imperative in the categorical imperative, the second in the hypothetical imperative. (Rawls, "Themes," 81-113 (87, 88)) "By contrast, rational intuitionism requires but a sparse conception of the person, based on the idea of the person as knower." (Rawls, "Themes," 97) Rawls, "Themes," 100. "Recall here Kant's thought that to commit suicide is to root out the existence of morality from the world." (Metaphysics of Morals 6:422—3). See "The Hypothetical Imperative," in DPR, 17. See especially her Locke Lectures, II and III. "Our humanity is our pure practical reason together with our moral sensibility (our capacity for moral feeling). These two powers constitute moral personality, and include the power to set ends; they make a good will and moral character possible." (Rawls, "Themes," 89) Kant, Religion within the Boundaries of Mere Reason, 6:27—8. Korsgaard, "Kant's Formula of Humanity," in CKE, 111. Korsgaard, "Kant's Formula of Humanity," in CKE, 114. Korsgaard shows the relevance of making this distinction: happiness, for Kant, is valuable as an end, but it is not intrinsically valuable. A good will is both valuable as an end and intrinsically valuable. And so it is with humanity—even (and here would lie a possible difficulty) if it is not yet equivalent to personality. Kant, Groundwork, Part II, 4:436. Ibid., 4:435. Korsgaard, "Kant's Formula of Humanity," in CKE, 120. The passage begins already at 4:428, with Kant showing the difference between relative and necessary ends; then Kant goes on to affirm the principle: "I say that the human being and in general every rational being exists as an end in itself, not

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merely as a means to be used by this or that will at its discretion; instead he must in all his actions, whether directed to himself or also to other rational beings, always be regarded at the same time as an end." Then, Kant offers a list of possible ends, distinguishing between those which have relative worth (objects of the inclinations, the inclinations themselves as sources of needs, beings whose existence rests not on our will but on nature, which he calls things), and finally rational beings or persons, "because their nature already marks them out as an end in itself, that is, as something that may not be used merely as a means, and hence so far limits all choice (and is an object of respect)." 78. Korsgaard, "Kant's Formula of Humanity," in CKE, 122—3. 79. See G.W.F. Hegel, Elements of the Philosophy of Right, ed. A. Wood, trans. H.B. Nisbet (Cambridge, UK: Cambridge University Press, 1991). 80. Kant, Groundwork, Part II, 4:428. 81. Kantian motives are neither desires nor causes. An agent's motives reflect his reasons for acting. An agent may take the presence of a desire to give him a reason for action as he may also find reasons in his passions, principles, or practical interests. All of these, in themselves, are "incentives (Tnebfederri) " not motives, to action. It is the mark of a rational agent that incentives determine the will only as they are taken up into an agent's maxim. Indeed, it is only when an agent has a maxim that we can talk about his motive. (Herman, "On the Value of Acting from the Motive of Duty," inPMJ, 11-12) 82. See Korsgaard, The Locke Lectures. 83. PMJ, 12. 84. Rawls, "Themes," 109. 85. Kant, Religion, 6:36. 86. I would like to thank Professor Christine M. Korsgaard for providing me with some material for this chapter, as well as for a useful conversation on the topic of this chapter. I am also indebted to Kyla Ebbels Duggan for her feedback on the similarities between the late Rawls's and Barbara Herman's reading of Kant. Finally, I would like to thank Melissa Moschella and Thorn Brooks and Fabian Freyenhagen of the Journal of Moral Philosophy for their help with revisions.

9 The Law of Peoples: the old and the new Chris Naticchia

In a previous paper, I argued that John Rawls's defense of basic human rights as a requirement of international justice fails, and that the source of this failure is his reluctance to impose liberal values on societies whose traditions and culture are not liberal. If basic human rights were to be defended, I suggested, we must either apply a comprehensive liberalism to all societies (whether or not their traditions and culture are liberal) or else restructure the global original position so that representatives of individuals, not peoples, select the principles of justice (a course Rawls rejects as biased toward liberal individualism) . Both options, I argued, would require abandoning the effort to find a "political" conception of international justice. 3 My previous paper was based on the argument Rawls presented in his article "The Law of Peoples." Since then, however, Rawls has considerably expanded and modified his argument in a book by the same title. Although the changes now strengthen his defense of basic human rights (primarily by requiring greater gender equality in societies whose traditions and culture reject it), I shall argue that they still do not go far enough or else produce tensions of their own. The remedy, once again, I shall suggest, is that we must reject Rawls's reluctance to impose liberal values more widely if we are to justify basic human rights. If this argument is sound, the upshot would be this. Many (if not most) critiques of Rawls's view seem to fall into one of two camps. On the one hand, there are those who challenge his abstention from liberal individualism and subsequent embrace of the independent moral significance of peoples. 6 On the other hand, there are those who accept (sometimes arguendo) his embrace of the independent moral significance of peoples, yet maintain that, nonetheless, more recognizably liberal principles can still be justified (particularly in the area of global economic distribution). This chapter, however, adds an arguably stronger critique, for it holds not that stronger liberal principles can be justified even if we accept the independent moral significance of peoples, but that weaker principles (ones guaranteeing basic human rights) would fail to be justified. Before I turn to my defense of these claims, I want to say something about what is at stake in defending them. At stake is not only our understanding

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of why Rawls—arguably the most prominent political philosopher of the twentieth century—decided to alter his final, extended contribution to political philosophy, or even our estimation of his legacy in the area of international justice (matters that will primarily interest Rawls scholars). More importantly, what is at stake is our understanding of the limits to which we can avoid appealing to liberal values in order to justify basic human rights. 9 If our best attempts to justify basic human rights ultimately show that appeals to liberal values are unavoidable, then we should regard such appeals as no more of an imposition than the expectation that all societies must protect basic human rights. Even more significantly, if such appeals justify liberal freedoms that go beyondbasic human rights, then arguments in support of basic human rights would also justify international efforts to advance further liberal reforms within nonliberal societies. To defend these claims, I will begin by rehearsing the main difficulties with the argument Rawls presented in his earlier article. Then I will assess the most significant changes that appear in the book version of that argument. After this, I will discuss the deeper motivation for the changes and sketch some ideas for better handling the concerns that underlie them.

The old Law of Peoples

In his first version of the law of peoples, Rawls argued as follows. A just law of peoples is the outcome of two separate international sessions of the original position. In the first, only delegates from liberal societies are represented. In the second, delegates from both liberal and nonliberal—what Rawls calls hierarchical—societies are represented. As Rawls characterizes them, hierarchical societies are nonexpansionist states, usually organized around comprehensive religious doctrines, that privilege a state religion over others, but protect dissidents from persecution and respect basic human rights. The human rights that count as basic, according to Rawls, are minimum rights to life, liberty, personal property, and "a measure" of freedom of conscience and association. They do not include liberal-style freedom of speech, democratic political rights, or equal liberty of conscience. In both cases, he argues, the outcome is the same. From behind a veil of ignorance that excludes knowledge of the size, population, military strength, natural resources, and economic development of their society, they select principles that guarantee the freedom and independence of their peoples, allow a right to wage war in self-defense, impose a duty of nonintervention, enable them to ratify and require them to observe treaties, place limits on the conduct of war, and obligate them to protect basic human rights.

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Let us look more closely at this argument. One thing to notice right away about it is this: in the international version of the original position, the veil of ignorance is thinner than it is in the domestic version. In the domestic version, the veil prevents the parties from knowing their particular conceptions of the good. In the international version, by contrast, the veil allows the delegates to know their particular conceptions of domestic justice—the analogue, in this case, of conceptions of the good. Yet Rawls says nothing to justify the disanalogy. This enables one to raise the following objection. If, as Rawls claims in Political Liberalism, "the fact that we affirm a particular . .. comprehensive doctrine is not a reason for us to propose, or to expect others to accept, a conception of [domestic] justice that favors those of that persuasion," then similarly, the fact that we affirm a particular conception of domestic justice is not a reason to propose or to expect others to accept a law of peoples that favors our view. But if this consideration warrants excluding knowledge of conceptions of the good in the domestic case, then it should also warrant excluding knowledge of conceptions of domestic justice in the international one. Now how serious this objection is will clearly depend on whether excluding such knowledge changes the outcome of the procedure. If the delegates would choose the same principles anyway, then Rawls can simply amend his procedure and get the same result. By contrast, if the principles chosen would be very different, then the objection carries greater force. So we need to determine whether the principles chosen would indeed be different, and if so, to what extent. To make matters manageable, consider the duty of nonintervention and the obligation to respect basic human rights—arguably the two most important principles—with the understanding, shared by Rawls, that the latter takes precedence if the two come into conflict. Thus, if basic human rights are being violated, intervention of some type (not necessarily forcible) is justified. For Rawls, this standard represents how high to set the bar before intervention becomes morally permissible, and it is with justifying this claim that we will be primarily concerned. Suppose, then, that the delegates no longer know their conceptions of domestic justice. Since the delegates are ignorant of the military strength and other resources of their societies, they would plausibly reason that it is far worse to be conquered by, at war with, or intervened in by expansionist societies than it is to hold expansionist tendencies in check. Therefore, by applying maximin, they would adopt a duty of nonintervention. Then, charged with advancing their society's conception of domestic justice, but not knowing whether they represent liberal or hierarchical societies, they would plausibly reason that it is worse to be forced to conform to principles incompatible with their society's conception of domestic justice—a liberal society forced to advance some comprehensive religious doctrine, for example, or a religious

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society forced to embrace liberal freedoms—than it is to tolerate the existence of the other kind of society. So by applying maximin once again, they would agree to mutual toleration rather than risk forced conformity. And since both liberal and hierarchical societies protect basic human rights, they would embrace a principle guaranteeing their protection—but no stronger principle requiring additional liberal freedoms. Even if we use a thicker veil, therefore, we can still generate principles requiring nonintervention and respect for basic human rights—principles that permit nonliberal societies to exist and hence (as Rawls puts it) "express liberalism's own principle of toleration of other reasonable ways of ordering society." However, this reply exposes a critical assumption that requires justification. The reply assumes that the delegates know that they must represent either liberal or hierarchical societies (even if they do not know which type they represent)—both of which respect basic human rights. To see why, suppose they knew that they could represent what Rawls calls outlaw societies—ones that are either expansionist or do not respect all of the basic human rights (or both). In that case, the delegates would still select a duty of nonintervention for the reason given before (that it is far worse to be conquered by, at war with, or intervened in by expansionist societies than it is to hold expansionist tendencies in check). That decision would prohibit expansionistoutlaw societies. jVonexpansionist outlaw societies would still be in the running, though. Then, reasoning as before—that it is worse to be forced to conform to principles incompatible with their society's conception of domestic justice than it is to tolerate the existence of the other kinds of societies—they would again agree to mutual toleration rather than risk forced conformity. But this time, the scope of their toleration would have to be wider: it would have to include some nonexpansionist outlaw societies, that is, ones that do not respect all of the basic human rights. So, in this case, the delegates would select a principle slightly weaker than one requiring the protection of all basic human rights—it would require protecting some but not all of them—or to put it another way, they would have a slightly narrower interpretation of what the basic human rights are. If we use a thicker veil, then, we can generate a principle requiring respect for the full array of basic human rights only if we exclude outlaw societies from the original position (and enable the delegates to know that they are excluded). But what justifies their exclusion? For Rawls, each aspect of the original position must be given supporting grounds. What supporting grounds can be given for this aspect? Rawls claims that outlaw societies are properly excluded because they fail to meet what he describes as necessary conditions for being a member in good standing in a reasonable law of peoples: they must be nonexpansionist, respect (the full array of) basic human rights, and be guided by a common good conception of justice.

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Now immediately we should see that if part of the price of admission, so to speak, to the original position is being nonexpansionist and respecting basic human rights, then it is hardly surprising that the delegates select principles requiring nonintervention and respect for basic human rights (which they already observe). But then their emergence from the original position would not seem to give them any additional moral force. It would be like requiring the parties in Rawls's domestic original position to know that they each embraced his first principle of justice. In that case, if they selected that principle, its emergence from the original position would hardly constitute a justification of it. Fortunately, Rawls does not need to rely on either of these conditions, for two reasons. First, as we have just seen, the delegates would still choose a principle requiring nonintervention even if they knew that they might represent expansionist societies. Second, since Rawls considers respect for basic human rights to be a consequence of the (third) condition that a society must be guided by a common good conception of justice, he could simply substitute this condition for the condition requiring respect for basic human rights and still generate a principle requiring such respect. So we can amend Rawls's procedure by dropping the first two conditions and relying solely on the third: the price of admission to the original position is observing a common good conception ofjustice. But notice that this move merely pushes the issue back. What supporting grounds can be given for making a common good conception of justice the price of admission? A common good conception of justice, according to Rawls, is one that "takes impartially into account what it sees not unreasonably as the fundamental interests of all members of society." 21 He then suggests that it is because common good conceptions of justice are "not unreasonable" that the original position should include delegates who could potentially represent them (but not other views). But why are such conceptions not unreasonable? Were he to use the term "reasonable" as he does in Political Liberalism—as involving the exercise of theoretical and practical reason and drawing upon a tradition of thought and doctrine—then many common good conceptions would qualify as reasonable, since many of them draw upon doctrines involving theoretical and practical reason. But then so too would some conceptions that deny certain basic human rights, for the exact same reason. This probably explains why Rawls resorts to a different use of the term in the law of peoples, where by "reasonable" he means any conception of domestic justice that admits "a measure of liberty of conscience and freedom of thought, even if these freedoms are not in general equal for all members of society as they are in liberal regimes," and even if they permit "an established religion with certain privileges," provided that no religions are persecuted. (I will say more about this issue later, under the heading "Deeper motivation.")

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Our reconstruction of Rawls's argument, then, is this. If we use the thicker veil, we can generate a principle requiring respect for the full array of basic human rights only if we exclude outlaw societies from the original position. What justifies the exclusion of outlaw societies is that they do not possess a common good conception of justice. The ground for excluding societies that do not possess a common good conception of justice is that their conceptions of justice are unreasonable. And the reason that they are unreasonable is that they do not recognize liberty of conscience and freedom of thought. We now come to the crux of the matter. What can Rawls say to someone who objects that this sets the price of admission to the original position too low—that conceptions of domesticjustice that admit only "a measure" of religious freedom, and allow it to be unequal (perhaps quite unequal) among members of society are not reasonable? What resources, in other words, are available from within Rawls's theory to respond to such a challenge? Notice that one cannot respond by claiming that to exclude any more societies would be intolerant, since the issue is precisely where the limits of toleration are to be drawn. Besides, some societies are already excluded. Why not more? Nor can one respond by claiming that to exclude any more societies would be inconsistent with liberalism's principle of toleration for other ways of organizing society, since it's not necessarilythe case that only liberal ones would remain. For example, suppose that a hierarchical society with an established religion and widely unequal religious freedoms nonetheless allows "a measure" of religious freedom (a very meager one) for members of religious minorities: permitting them to pray in groups of no more than three. As long as those members did not invite sanctions with massive public disobedience, and as long as the government did not adopt intrusive measures to detect private violations, enforcing these policies would not rise to the level of persecution (and would not violate their other basic human rights as Rawls characterizes them). Yet if we consider a conception of domestic justice that permits hierarchical societies to be organized like this to be unreasonable then we have grounds for excluding at least some hierarchical societies from the original position. Gall these societies extreme hierarchical societies. Still, hierarchical societies with less significant inequalities—call them moderate hierarchical societies—would not be excluded. So other societies besides liberal ones would still be included if we drew the limits of toleration tighter. The point, however, is not merely that Rawls's theory seems to lack the resources to respond to the challenge that he sets the price of admission to the original position too low. The challenge itself seems independently plausible. Moreover, when we consider the historic connections between religion and gender discrimination, it gains further strength. In many religion-based societies, for instance (not just poor ones), girls receive far less education than do boys. The illiteracy rates for women are often twice that of men. Girls are

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subject to early, arranged marriages that further limits their opportunities. Divorce is far more difficult for women to obtain than it is for their husbands. The cumulative impact of these inequalities profoundly influences the control that women have over the course of their lives and severely limits their ability to exit the religious culture into which they are born. Given that hierarchical societies may have a state religion, and given that these restrictions on girls and women are often based on religion, it follows that such religion-based gender inequalities are also permitted by hierarchical societies (even moderate ones). Yet if we consider a conception of domestic justice that permits hierarchical societies to be organized like this to be unreasonable, then we have grounds for excluding more of them. As these remarks suggest, we should reject as too lax the view that a conception of domestic justice is not unreasonable if it allows only "a measure" of liberty of conscience and freedom of thought. We should raise the bar. And indeed, Rawls does precisely that in his new law of peoples. But as I shall also argue, Rawls himself does not raise it high enough. We should raise it higher.

The new Law of Peoples Of the most significant changes to Rawls's argument, one is merely cosmetic: hierarchical societies are now called decent (or decent hierarchical) ones. But others are substantive. For example, whereas Rawls, in the article version, held that a society must be nonexpansionist, respect basic human rights, and be guided by a common good conception of justice in order to be represented in the original position, he drops the condition requiring respect for basic human rights in the book version. This change saves Rawls from the charge that he makes respect for basic human rights the price of admission to an original position from which he hopes to derive a principle mandating their respect—of presupposing exactly what the original position is supposed to justify. But since the book version still insists that a society must be nonexpansionist—since it makes this the price of admission to an original position from which Rawls hopes to derive a principle of non-intervention—he still seems to presuppose at least part of what the original position is supposed to justify. Nonetheless, we can save Rawls from the charge of presupposing what the original position is supposed to justify if we simply drop the condition that a society must be nonexpansionist. Since the delegates are ignorant of the military strength and other resources of their societies, they would plausibly reason that it is far worse to be conquered by, at war with, or intervened in by expansionist societies than it is to hold expansionist tendencies in check. So they would still choose a principle of nonintervention.

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Even if we amend Rawls's view in this manner, though, the other requirement would remain: the requirement that a society must be guided by a common good conception of justice in order to be represented in the original position. Yet we may still justifiably ask whether common good conceptions of justice really are (as Rawls puts it) "not unreasonable." But now, in the book version of the law of peoples, Rawls strengthens what is required for a conception of justice to be not unreasonable—presumably, to block precisely the objections that we raised in the last section. For example, whereas in the article Rawls held that a conception must admit "a measure of liberty of conscience and freedom of thought, even if these freedoms are not in general equal for all members of society as they are in liberal regimes" —a characterization compatible with widely unequal religious freedoms—in the book he holds that a conception must admit "asufficientmeasure of liberty of conscience and freedom of religion and thought," even if they are unequal. Sufficient, we might ask, for what? Elsewhere in the book he phrases it even more strongly, requiring that a conception must admit "a sufficient measure of liberty of conscience to ensure freedom of religion and thought." And when he describes a society that has such a conception of justice—the fictitious Kazanistan—he expressly limits religious inequalities to the holding of higher political and judicial offices: "Islam is the favored religion, and only Muslims can hold the upper positions of political authority and influence the government's main decisions and policies.. . Yet other religions are tolerated and may be practiced without fear or loss of most civic rights, except the right to hold the higher political or judicial offices." Indeed, Rawls insists that "they are not subjected to arbitrary discrimination, or treated as inferior by Muslims in public or social relations," which suggests that they are otherwise treated equally.31 These remarks suggest two different requirements for a conception ofjustice to be not unreasonable, one that limits religious inequalities to the higher political and judicial offices (if we take the Kazanistan discussion to define that requirement), and one that allows wider inequalities (if we take it merely to illustrate it)—though not as wide as those permitted in the article. Since Rawls introduces Kazanistan as an example of a society whose conception of justice is not unreasonable, I will interpret his remarks as permitting wider inequalities, although I will also consider the alternative interpretation at the end of this section. There is another respect in which Rawls strengthens what's required for a conception ofjustice to be not unreasonable. As we saw in the last section, it is compatible with Rawls's earlier characterization of a hierarchical society for it to permit significant inequalities in rights between men and women. But now, in the book, Rawls limits the permissible range of gender inequalities, just as he does religious ones. There must be "equal justice for women," he claims, for two reasons. First, the inequality and subjection of women are

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among the leading causes of population pressures that burden a society relative to what its economy can sustain. Thus, removing the inequality and subjection of women and giving them equal justice is a good strategic reason for enabling a society to meet its members' subsistence needs, as required by the basic human right to life. (Rawls cites the Indian state of Kerala, which gave women rights to receive education, to own property, and to hold wealth, as one of several places where this strategy significantly reduced birth rates. ) Second, and more directly connected with the interests of women, the subjection of women simply violates their basic human rights. Now I do not think that either of these reasons adequately supports Rawls's view that there must be equal justice for women. That giving women equal justice is a good strategy for reducing birth rates, which is in turn a good strategy for enabling a society to meet its members' subsistence needs, is an empirically contingent reason for guaranteeing basic rights—the sort Rawls elsewhere rejects as too insecure. At best, it supports the position that equal justice for women is required in burdened societies that are unable to meet their members' subsistence needs, but not elsewhere. The second reason, that the subjection of women violates their basic human rights, argues for upholding their basic human rights but no more. It does not argue for any right of nondiscrimination—a right conspicuously missing from Rawls's list of basic human rights—as the phrase "equal justice for women" seems to require. Perhaps Rawls means to suggest, through his example of the Indian state of Kerala, that women must have some rights to education, wealth, and property, though not rights equal to men. (I am assuming that there can be some gender inequalities that intuitively seem to constitute discrimination, but do not rise to the level of subjection.) But this would be a nonstandard use of the phrase "equal justice for women." Rather than attribute this nonstandard usage to Rawls, I will interpret his claim that there must be equal justice for women as requiring a right to nondiscrimination on the basis of gender in spite of the apparent inability of his reasons to support that view. On this interpretation of the new law of peoples, then, Rawls is claiming that conceptions of justice are not unreasonable if and only if they allow a sufficient measure of religious freedom to all of their members, even if these freedoms are unequal, and they guarantee equal justice for women. This is the new price of admission to the original position. I would like to raise three questions about this claim. First, why does Rawls seem to permit religious discrimination while barring gender discrimination? By allowing unequal—though not too unequal—religious freedoms, Rawls seems to permit some form of what we would intuitively consider to be religious discrimination. In contrast, by insisting on equal justice for women, Rawls seems to require a right to nondiscrimination on the basis of gender. What justifies the difference?

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The difference seems to involve an inconsistency in principle, the sort that Ronald Dworkin has called "checkerboard" law. This is law that makes arbitrary distinctions in matters of principle—for example, a law making abortion illegal for women born in even years but not odd ones. By contrast, a law making abortion illegal except in cases of rape, incest, or when the life or health of the mother is at stake, is not. Whether we think that the exceptions should be broader, or whether we think there should be none at all, we at least recognize that the distinction drawn is a principled one. But in Rawls's case, if official discrimination is a wrong that should be prohibited as a matter of justice, then it seems arbitrary to exempt religious discrimination from the scope of that principle. If so, then any conception of justice that permits such discrimination as a matter of law would seem to allow checkerboard law. But intuitively, this seems wrong. Instead, we should treat religious and gender discrimination the same. Now one might want to reply on Rawls's behalf as follows. For Rawls, political philosophy should be practical: it should produce an outcome that can be supported by adherents of diverse comprehensive worldviews, whether they are views of the good, or of justice. Thus, Rawls may be perfectly justified in allowing religion—his paradigm case of a comprehensive worldview—to be used as a basis for making political distinctions, but barring gender from being used. But notice what this reply assumes: it assumes that in trying to satisfy this practical aim, in trying to gain the support of diverse comprehensive worldviews, it is nonetheless permissible to impinge upon these views to some extent. Gender discrimination, even if based on religion, is impermissible. (Presumably, it would be easier to achieve the practical aim if no impingements at all were permitted.) So the practical aim is not overriding. But once we accept some compromise in the practical aim, other impingements seem equally motivated. For instance, we might claim that racial and ethnic discrimination, like gender discrimination, should be impermissible, even if they are based on religion. And now religious discrimination, itself based on religion, begins to look like an isolated case. Why does the practical aim allow only this kind of discrimination, but not others? We seem to face the problem of checkerboard law all over again, even after taking Rawls's interest in the practical aim of political philosophy into account. Even if one remains unpersuaded by these considerations, however, there is a more fundamental problem with the reply: it ignores what Rawls refers to as the two stages of his presentation. Rawls speaks of his domestic principles, justice as fairness, as being presented in two stages. The first stage involves the argument from the original position, where parties choose principles from behind a veil of ignorance without investigating whether they can be the focus of an overlapping consensus. The second stage involves testing the

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principles to see if they can be the focus of such a consensus. Presumably, the same sequence is to be followed for his international principles. But at this point we are still trying to determine "the most philosophically favored interpretation" of the international original position—we are still working out the first stage. After that, we can consider the likelihood of the outcome becoming the focus of an overlapping consensus. But such (practical) considerations are not to influence the setup of the original position yet. 39 Second, suppose that we do treat religious and gender discrimination the same, not by barring them both but by allowing both kinds of inequality (although everyone has "a sufficient measure" of religious freedom, and women have some rights to education, wealth, and property). This avoids the problem of allowing checkerboard law. But it faces the original problem. What can Rawls say to someone who objects that this still sets the price of admission to the original position too low—that conceptions of domestic justice that permit discrimination on the basis of gender or religion but restrict it from being too excessive are not reasonable? It is tempting here to appeal to Rawls's notion of a consultation hierarchy. According to Rawls, a common good conception of justice requires either democratic political rights, as in liberal societies, or a consultation hierarchy, in nonliberal societies. A consultation hierarchy includes "a family of representative bodies whose role in the hierarchy is to take part in an established procedure of consultation and to look after what the people's common good idea of justice regards as the important interests of all members of the people." In a consultation hierarchy, members of society are not regarded as "separate individuals deserving equal representation. . . according to the maxim: one citizen, one vote," as they would in liberal societies. Rather, "persons belong first to estates, corporations, and associations—that is, groups." Thus, "[e]ach person belongs to a group represented by a body in the consultation hierarchy." And "as members of associations, corporations, and estates," persons "have the right at some point in the procedure of consultation ... to express political dissent, and the government has an obligation to take a group's dissent seriously and to give a conscientious reply." Hence, in response to the charge that he sets the price of admission to the original position too low, Rawls might reply that any inequalities on the basis of gender or religion that issue from a consultation hierarchy are reasonable since the interests of women and religious minorities were considered in that process. This would be an effective reply, perhaps, if we were to assume that women and religious minorities accepted discrimination willingly and reflectively — as opposed to, say, simply acquiescing in it, or accepting it on the basis of adaptive preferences. But unless Rawls is going to allow acquiescence or adaptive preferences a role in determining what counts as reasonable inequalities—and give up the attempt to find an Archimedean point for assessing them—his

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reply must rest on their being accepted in some more robust sense. And then it is hard to see why women and religious minorities would not insist that discrimination against them neglects their fundamental interests—interests which the consultation process is supposed to uphold. Third, suppose that we treat religion and gender the same, not by "leveling down" the status of women to that of religion, as we just did, but by "leveling up" the status of religion to that of women. On this view, conceptions of justice are not unreasonable if and only if they guarantee equal justice for women and for minority religious groups by requiring a right to nondiscrimination on the basis of gender or religion. But there is one exception: the higher political and judicial offices may still be reserved for members of the favored religion. Now in this case, where inequalities in rights and freedoms are indeed very limited, we may be inclined to agree that such conceptions are not unreasonable, and that therefore this is appropriate as the price of admission to the original position. But it is important to notice that this brings them quite close to the family of liberal conceptions of justice—the main differences being that the nonliberal conceptions require rights of political participation that are collective rather than individual, and that they permit some religious restrictions on the higher political and judicial offices. Since these nonliberal conceptions are almost liberal, we might ask whether there is some other way of accounting for the intuition that they are not unreasonable. I will say more about this in a moment. What I want to do now is look at what I think is the deeper motivation for the changes we have discussed.

Deeper motivation I think that ultimately one source of the problem—that is, the problem of deciding which conceptions of justice are not unreasonable with respect to the limits they impose on a society's domestic practices—is this. When an agent in the original position represents groups of individuals rather than individuals, the resulting principles will be silent on what goes on within each group, since the principles the agent must agree to are supposed to govern the relations of the groups with one another, not their relations with their own members. (Feminists were first to notice this in their critique of Rawls's initial claim that the parties in the domestic original position were heads of families, a claim which they argued made the internal affairs of families opaque to claims of justice. ) But in his international original position, Rawls refuses to have the delegates represent individuals; instead, they must represent peoples. As a result, the delegates' choice of principles under uncertainty does not impose any new limits on a society's domestic practices that ar not already determined by the price of admission. What this means is that the

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price of admission to the international original position is what establishes those limits—it (not the choice of principles under conditions of uncertainty) does the normative work. And so, when we determine what the price of admission is, we are determining what those limits ought to be. If intuitions differ, though, about whether the limits determined by the price of admission are too weak, then the theory cannot produce "a resolution which we can affirm on reflection," as Rawls claimed his domestic theory could do with differing intuitions over the proper distribution of wealth and income. We are left with a mere clash of intuitions. Given this, and given the intuitive implausibility of allowing inequalities in rights and freedoms to be too wide, it is only natural that Rawls sought to strengthen his view of what makes a conception of domestic justice not unreasonable (since what counts as being "not unreasonable" just is the price of admission). But as I have suggested, the most plausible way of interpreting that view is as requiring such conceptions to be almost liberal. This is about as strong as Rawls can make his view and still be consistent with his claim that liberalism requires the toleration of other ways of organizing society. So we might describe Rawls's deeper motivation for making this change as involving, on the one hand, the need to strengthen his view of what makes a conception of justice not unreasonable, and on the other hand, the need to honor what he conceives of as liberalism's principle of toleration. But there is another way of accommodating this result. We could claim that only liberal conceptions of domestic justice are not unreasonable, but for practical rather than moral reasons concerning tolerance, we should exempt societies that follow nonliberal, but almost liberal, conceptions from even the mildest forms of intervention (like political and economic pressure) aimed at reforming them in a liberal direction. Instead, societies that follow liberal conceptions should simply lead by example. This is not Rawls's view, of course, since for him the exemption is grounded in moral reasons concerning tolerance. Indeed, it is one he officially rejects. Yet there are times when he seems sympathetic to it. "All societies undergo gradual changes," he claims, "and this is no less true of decent societies than of others. Liberal peoples should not suppose that decent societies are unable to reform themselves in their own way. By recognizing these societies as bonaf.demembers of the Society of Peoples, liberal peoples encourage this change." This emphasizes a practical rationale for exempting decent societies from any outside pressures to liberalize in favor of letting them reform themselves. Second, he claims that "in view of the possible inequality of religious freedom, if for no other reason, it is essential that a hierarchical society allow and provide assistance for the right of emigration." The suggestion here seems to be that members of a religious minority should have an effective right of exit so that, if they wish to, they may seek entry into a society that guarantees equal rights of

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religious freedom, as in a liberal society. If so, then it almost seems as though Rawls thinks they ought to have, as a fallback position, the freedom to enter a liberal society—which comes very close to suggesting that all persons everywhere are entitled to liberal rights and freedoms somewhere. The upshot is that we have two ways of accounting for the intuition that societies that are almost liberal should be exempt from even milder forms of political and economic pressure aimed at reforming them in a liberal direction. One way is grounded in moral reasons concerning tolerance; the other is grounded in practical concerns about the efficacy of exerting such pressure on societies that are already almost liberal. Although I shall not argue the point here, the advantage, it seems to me, belongs with the latter view, since Rawls's version of the former appears to rest on nothing more than an intuition: an intuition about where the limits of tolerance are to be drawn. By contrast, the latter provides an explanation of those limits (a deflationary one). But even if we favor the former, reconstructed Rawlsian view, it is important to notice this: we are still appealing to liberal values of equal justice and nondiscrimination, and committing ourselves to advancing them in cultures accus tomed to privileges for men and certain religions, even if we accept exceptions for the higher political and judicial offices. This requires liberal reforms that go beyond securing basic human rights as Rawls characterizes them. Hence, not only does this reconstructed argument support basic human rights. It also justifies international efforts to promote equal justice for women and religions.

Wider implications These findings imply that international efforts to encourage societies to liberalize are in principle justifiable as long as those societies are not already almost liberal. Of course, the specific form such efforts take will need to be justified. From the fact that a society violates some requirement of justice, it does not follow that we may respond in any way we like. The response itself must be proportionate, just, and rationally designed to achieve its end. We can therefore imagine a range of acceptable responses depending on the severity of the violations—from military intervention with appropriate authorization in the worst cases, to political and economic pressure, to diplomatic and economic incentives. Rawls's theory itself has little to say about which of these efforts would be justified in what circumstances, since it is, by design, an ideal theory—a theory of the state of affairs we should aim to achieve—rather than nonideal theory— a theory which indicates the steps we may take in transitioning to the ideal. Nonetheless, if the argument of this chapter is sound, the basic point, concerning the ideal that he defends, remains: even if we accept Rawls's

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procedure, we should reject his reluctance to impose liberal values more widely, and to insist instead that equal justice for both women and religions deserves to be among our international moral imperatives.

Notes 1.

C. Naticchia, "Human Rights, Liberalism, and Rawls's Law of Peoples," Social Theory and Practice 24.3 (Fall 1998), 345-74. 2. By "we," I mean "you and I, the reader and author, or agents acting on our behalf, whether international or national." 3. Another alternative that we might apply is not a comprehensive liberalism, but a religious comprehensive doctrine, interpreted so as to support basic human rights. This too would require abandoning the effort to find a political conception of international justice. My assumption throughout, though, which I do not attempt to defend here, is that the best defense of basic human rights is broadly liberal. Obviously it is of the first importance should this assumption prove mistaken. 4. John Rawls, "The Law of Peoples," in CP, 529-64. 5.

LP.

6. See, for instance, Charles Beitz, "Rawls's Law of Peoples," Ethics 110.4 (July 2000), 669—96; Simon Caney, "Cosmopolitanism and the Law of Peoples," Journal of Political Philosophy 10.1 (2002), 95-123; and Thomas Pogge, "Rawls on International Justice," Philosophical Quarterly 51.203 (April 2001), 246-53. 7. See, for instance, Allen Buchanan, "Rawls's Law of Peoples: Rules for a Vanished Westphalian World," Ethics 110.4 (July 2000), 697-721; and Pogge, "Rawls on International Justice." 8. In calling The Law of Peoples "his final, extended contribution to political philosophy," I am of course excluding two later works by Rawls, his LUMP and his JF, on the grounds that the first is in the history of moral philosophy and the second is a reworking of his previous ideas in TJ and PL. 9. Here I intend merely to assert that there are limits to which we, in attempting to provide a philosophical justification for basic human rights, can avoid appealing to liberal values. This is compatible with states themselves professing official agnosticism about the philosophical basis for such rights. 10. As I mention above in note 3, I do not attempt here to defend the claim that broadly liberal defenses are best, only that, if they are, we cannot bracket them as tightly as Rawls seeks. 11. A more fully developed version of the argument contained in this section appears in my "Human Rights, Liberalism, and Rawls's Law of Peoples." 12. Nor do they include rights to nondiscrimination on the basis of religion or gender, which are also typically regarded as requirements of liberalism. The importance of this fact will be seen in section II. 13. Rawls, "The Law of Peoples," 538-40.

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14. See Thomas Pogge, "An Egalitarian Law of Peoples," Philosophy and Public Affairs 23.3 (Summer 1994), 195-224 (206). 15. PL, 24. 16. I take it that the principle enabling them to ratify and requiring them to observe mutually advantageous treaties follows from the principle guaranteeing their freedom and independence as a people, which I take to be the correlative of the duty of nonintervention. I also take it that the principles allowing them the right to wage war in self-defense and to place limits on the conduct of wars follow from the principle imposing a duty of nonintervention. This suggests that the duty of nonintervention is the basis for the rest of these principles, which are derivative (with the exception of the one guaranteeing the freedom and independence of their people, which is correlative). The only remaining principle to account for is the obligation to protect basic human rights. Hence the claim that the duty of nonintervention and the obligation to protect basic human rights are the two most important principles. 17. As I explain later in the text, we may think of intervention to effect change as involving different types of policies that range over a continuum, from forcible (military) intervention on one end of the spectrum, to diplomatic and economic incentives at the other, with various forms (and degrees) of political and economic pressure in between. 18. Rawls, "The Law of Peoples," 530. 19. It would be mistaken to suppose that such societies must be devoted to a senseless reign of domestic terror. It could be just like a hierarchical society except that its comprehensive religious doctrine denies certain human rights. For example, it might deny a guarantee of minimum economic security (a subsistence right taken by Rawls to be part of the minimum right to life); instead of being a claim-right (as the term "guarantee" suggests), it might merely be a liberty-right. Alternatively, it might deny one aspect of the right to freedom by requiring forced labor from members of a certain ethnicity (but only to an extent consistent with social stability). For more on this point, see my "Recognition and Legitimacy: A Reply to Buchanan," Philosophy andPublic Affairs'28.3 (Summer 1999), 249 and "Human Rights, Liberalism, and Rawls's Law of Peoples," 351. For Rawls's view of minimum economic security, see Rawls, "The Law of Peoples," 546. 20. Rawls, "The Law of Peoples," 545-7. 21. Ibid. ,545. 22. Ibid., 547. 23. PL, 59. Elsewhere, Leif Wenar suggests that Rawls sometimes seems to define "reasonableness," or "reasonable doctrine," differently: as what reasonable persons affirm. That of course shifts the burden to defining "reasonable person." As Wenar suggests, though, Rawls's characterization of this notion seems to presuppose a partially comprehensive Kantianism, or at least a conception of individuals' highest-order interests, which would not be supported by many doctrines in an overlapping consensus. (See Leif Wenar, "Political Liberalism: An Internal Critique," Ethics 106.1 (October 1995), 32-62.) Since (in this context) conceptions of domestic justice are the analogue of such doctrines, I take it that Rawls

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cannot consistently resort to this usage of the term either. This would thus provide additional reason for his resorting to a different use entirely (as explained later in the paragraph). 24. Rawls, "The Law of Peoples," 547. 25. Susan Moller Okin, " 'Mistresses of Their Own Destiny': Group Rights, Gender, and Realistic Rights of Exit," Ethics 112.2 (January 2002), 205-30 (216-22). 26. LP, 64. 27. Rawls, "The Law of Peoples," 547 (emphasis added). 28. Ibid., 74 (emphasis added). 29. Ibid., 64 (emphasis added). 30. Ibid., 75-6. 31. Ibid.,76. 32. Ibid., 9, 110. 33. Ibid., 110. 3 4 . Ibid., I I I . 35. The worry is similar to Rawls's worry in A Theory of Justice that utilitarianism provides an unacceptably contingent basis for securing the basic rights and liberties. 36. Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986), 178-84. 37. Ibid., 178. 38. PL, 140 n7. This observation was also made (in a separate context) in my "Human Rights, Liberalism, and Rawls's Law of Peoples," 367. 39. "So while a political conception ofjustice addresses the fact of reasonable pluralism," claims Rawls, "it is not political in the wrong way: that is, its form and content are not affected by the existing balance of political power between comprehensive doctrines." (See PL, 142.) Although Rawls's remark addresses his domestic theory ofjustice, it presumably applies to his international theory as well. 40. IP, 71. 41. Ibid., 71. 42. Ibid., 72. 43. Ibid., 71-2. 44. Ibid., 72. 45. "Human Rights, Liberalism, and Rawls's Law of Peoples," 357. 46. Since then, Rawls has indicated that the parties to his domestic original position are individuals rather than family heads, which should accommodate this concern. For other views, see Susan Moller Okin, "Political Liberalism, Justice, and Gender," Ethics 105.1 (October 1994), 23-43 (29-32, 35-7); and John Exdell, "Feminism, Fundamentalism and Liberal Legitimacy," Canadian Journal ojPhilosophy 24.3 (September 1994), 441-63. 47. TJ, 19. 48. IP, 61. 49. Ibid., 74. 50. \ say "almost" because having the freedom—or a liberty right—to enter a liberal society does not strictly entail having an entitlement—or claim right—to such

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entry. But since the liberty would be of no value without the claim, one might plausibly interpret Rawls (or, alternatively, the best Rawlsian view) as being committed to the latter. 51. Rawls claims that the long-run aim is to bring all societies eventually to honor the Law of Peoples and to become full members in good standing of the society of well-ordered peoples. Human rights would thus be secured everywhere. How to bring all societies to this goal is a question of foreign policy; it calls for political wisdom, and success depends in part on luck. These are not matters to which political philosophy has much to add .. . What to do on these questions is ... essentially a matter of political judgment and depends upon a political assessment of the likely consequences of various policies. (See LP, 93.)

10 The legacies of John Rawls Fred D'Agostino

Rawls's threefold legacy To understand the continuing importance of John Rawls's work, we need to understand the background, the object, and the method of his fifty-year quest as a political thinker. The background to Rawls's investigation was a (carefully circumscribed) acknowledgment of a certain kind of evaluative pluralism. In particular, as early as A Theory of Justice, we find Rawls casting his activities in relation to the fact, as he saw it, that there is no public conception of the good. Later, in Political Liberalism, Rawls wrote of a reasonable pluralism of comprehensive doctrines. Although these formulations are not quite the same, Rawls in both cases acknowledged the fact and the importance of a diversity in moral judgements that is likely, absent coercion, to persist even in the face of strenuous efforts to address it. The object of Rawls's work was to develop a method of commensuration that would enable us, the free and equal citizens of a democratic society, to identify a common basis for our dealings, in search of mutual benefit, with one another. Because of diversity, indeed reasonable plurality, of beliefs and values, there will be diversity, too, in the numerous, incompatible proposals for the basic structure of society or, as Rawls put it later, for the constitutional fundamentals that define the basic terms of our association. How are we, collectively, to rank these proposals and, in particular, to identify, as best for us, a single, determinate proposal that could serve as the commonly agreed and self-sustaining basis for our association? To answer this question, to identify a way of commensurating these proposals was, I submit, the object of Rawls's work. His twofold critique, in A Theory of Justice, of utilitarianism (which commensurates in a Procrustean manner) and of intuitionism (which embraces incommensurability) was, perhaps, the surest indication of Rawls's preoccupation with this vital issue. Finally, the method used by Rawls in his work was broadly, though tacitly rather than explicitly, pragmatist in character, especially in the sense that Rawls was aiming, now explicitly, to develop principles of political association

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that generate their own support in the attitudes and actions of those whose behavior they are intended to guide. Rawls was aiming, crudely, to develop principles of justice which can function, socially, as tools for the arrangement, critique, and rearrangement of existing social institutions. And he understood, profoundly, that, in order to play such a role, these kinds of principles would have to secure uptake; articulating such principles would be merely an academic exercise unless they were embraced. In the sections which follow, I will comment on each of these aspects of Rawls's project, with the aim of displaying some of the main features of his enterprise that remain, in fact, to be fully developed and whose development will, I submit, constitute Rawls's (at least medium-term) legacies to political thought.

Rawls's pluralism Any discussion of pluralism should begin, I think, with recognition of the fact of diversity. People have different opinions, indeed form different deliberated judgements about what is good and even about what is right, and these differences in attitudes are likely to survive, if not entirely unchanged, all sorts of attempts to bring the parties involved to agreement. This is diversity and it is an all-but-inescapable feature of our daily lives. Indeed, many of the most familiar institutions of our societies and cultures can be thought of as responsive or any way responsible to this fact of diversity. (Foremost among them, as we will see in the next section, is a system that allocates individual rights of judgement and decision.) In moderately realistic situations, there is disagreement even about what the facts are. Consider, for instance, the disputes, likely to be persistent, about how to interpret forensic evidence during a criminal trial. Even expert witnesses can disagree, in good faith and on the basis of highly deliberated engagements with evidentiary materials, and can persist in their disagreement even after being confronted with it in adversarial and searchingly challenging circumstances, for example of cross-examination. The situation is all the more striking in the case of values and norms. None but the most thorough-going relativist is likely to urge the institutional acknowledgment of diversity about the facts. But even relatively hardy opponents of relativism are forced, or so they often seem to feel, to recognize that diversity on the evaluative front does indeed require institutional recognition. Whereas we might, even in the face of factual disagreement, hold firm to the idea that the truth is singular and indivisible, this kind of commitment requires more in the realm of values than most theorists and ordinary people are prepared to give in societies such as ours. Most of us, at least outside the

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academy and the more fundamentalist religious and ethical circles, think that diversity of opinion or judgement about value matters is unlikely to be reduced by merely intellectual means; that its reduction will require, instead and as Rawls himself thought, machineries of persuasion or coercion that cannot themselves be morally approved. Most of us, in other words, are pluralists: we acknowledgediversity in a notentirely-grudging way. For pluralists, diversity is some kind of fact about our lives that calls for institutional recognition, for example in acknowledging that many issues are matters of discretion: It is up to each individual (conscientiously deploying their various faculties in moderately favorable circumstances) to decide for themselves what it is appropriate for them to believe or value in various situations where uncoerced consensus is not to be achieved. There are, of course, various modes of commitment to broadly pluralist ideas and there are, of course, various devices by means of which institutional recognition can be given to the kinds of diversity that might be more than merely superficial (e.g. in cloaking the mistaken beliefs or misguided values of some in our midst). Isaiah Berlin and others of his ilk (including Stuart Hampshire and Bernard Williams) are strong pluralists in the sense of believing that diversity of evaluations, especially, reflects deep and objective facts about the human situation and does not merely arise from the (inevitable) imperfections of human reasoning or of human sympathy. On this account, as John Gray compendiously puts it: [Values] are many, they often come into conflict with one another and are uncombinable in a single human being or a single society, and ... in many such conflicts there is no overarching standard whereby the competing claims of such ultimate values are rationally arbitratable. As Isaiah Berlin himself says: [In the face of such diversity] it is better to face [the] intellectually uncomfortable fact than to ignore it, or automatically attribute it to some deficiency on our part which could be eliminated by an increase in skill or knowledge; or, what is worse still, suppress one of the competing values altogether by pretending it is identical with its rival—and so end by distorting both. While Rawls did not explicitly reject (or tacitly accept) such a strong pluralism, he did embrace some form of pluralism proper; he did not treat the manifest politically relevant diversity of our sorts of societies as a merely superficial phenomenon. In particular, Rawls believed, and argued vigorously, that

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there is diversity, especially of kinds relevant to the organization of social life between free and equal citizens interacting for their mutual benefit, that cannot be eliminated except through coercion or manipulation. He referred, in particular, to "the practical impossibility of reaching reasonable and workable political agreement. .. especially an agreement that might serve the political purpose, say, of achieving peace and concord." Of course, Berlin's strong pluralism is based, in the end, on an ontological commitment about the nature of objective value. Since Rawls hoped "to avoid, so far as possible, disputed philosophical theses" (as strong pluralism certainly is), his own tactical pluralism was based, instead, on the so-called "burdens of judgment." These are those "hazards involved in the correct (and conscientious) exercis of our powers of reason and judgement in the ordinary course of political life," which make it improbable that "conscientious persons with full powers of reason, even after full discussion, will all arrive at the same conclusion." They include, inter alia, the fact that, in relevant cases, evidence bearing on disputed propositions is conflicting and hard to interpret and that our concepts are vague, open-textured, and contested. Perhaps most importantly, and returning to the issues raised by what, in A Theory of Justice, he had called intuitionism, Rawls recognized that much human deliberation takes place in the presence of a plurality of choice-relevant standards of assessment. There is, and his claim to this effect should not surprise us given his opposition to utilitarianism, no unitary metric, as Gass Sunstein (and others) calls it, in terms of which the options for choice can be arrayed for comparison. There are, instead, a plurality of such metrics and, crucially, no canonical way of weighting these metrics to arrive at a choice. While any given individual might be able to weight, indeed have a characteristic way of weighting, these metrics, of trading-off the values which they measure, there is no particular way of weighting or trading-off that is binding on all (say, rational and well-informed) individuals. There is, rather, reasonable diversity in choosing in a multidimensional setting because, as Rawls himself put it, people "may disagree about [the] weight" to be assigned to the various choice-relevant dimensions, and "so arrive at different [overall] judgments." This is, I believe, one of the most strategic of all Rawls's many observations about the human condition. It grounds his opposition to utilitarianism; it explains the place, in the unfolding argumentative narrative of A Theory of Justice, of his discussion of intuitionism; and it grounds his approach to cornmensuration in the ethico-political realm, and, in particular, his claims on behalf of individual rights of conscience and the like (see the next section). Nevertheless, there is something unfinished about his discussion, about our discussions, of this point. In particular, neither Rawls nor most of his commentators have treated even his weaker, tactical pluralism as anything other

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than an inconvenience. Certainly, it has not generally been treated as, rather, one of the most glorious opportunities for humankind. Oddly, among his rough contemporaries, the philosopher and historian of science, Thomas Kuhn, has, perhaps, seen this positive side of such intuitionism more clearly than most. If two different individuals use the same standards to evaluate options for choice, but weight them differently and hence arrive at different decisions about which option to choose, then this can, Kuhn sees, have some important advantages (relative to a situation where both arrive at the same decision). In particular, this divergence in decisions can spread risk in a particular way, at least in circumstances where decision-makers are exploring a relatively unknown terrain. Suppose that two scientists are trying to choose between two different (and incompatible) elaborations of some paradigmatic framework they are both committed to. (This is a routine aspect of normal science, according to Kuhn.) Obviously, if both reach the same conclusion about which elaboration is better, they will concentrate their efforts, and this may be advantageous. On the other hand, if the two reach different conclusions, then a larger portion of the terrain will be explored by them and this too may be advantageous. After all, where both agree, they might still be wrong in thinking that the particular, agreed elaboration is the right one. Where they disagree, there is a greater chance that the right elaboration, whatever that might be, will be explored by one of them. This, then, is an advantage of not resolving disagreement prematurely, but, rather, letting it become a resource rather than a problem. All this has obvious applicability to situations more centrally of concern to political (and ethical) theorists. Where individuals do not (spontaneously) agree (absent coercion) on how to weight choice-standards and, hence, on what choice to make, they may benefit, individually and collectively, from the fact that they make different choices. Each gets to see how other choices (than the one that was made) pan out and, hence, to learn something about these options that probably could not have been learned in any other way. (As many theorists have emphasized and as certainly follows from the finitude and fallibility which underpin the burdens of judgement, it is difficult to get either the facts or the preferences straight ex ante in situations of even moderate complexity. ) Exploring the circumstances in which there are social and individual benefits from the social recognition of diversity is, I think, a substantial project of continuing research and, assuredly, a legacy of Rawls's own work on the burdens ofjudgement. At the same time, and as is obvious, the fact of diversity and the inappropriateness, in democratic societies, of dealing with it through coercive means, raises the crucial problem of understanding how social order is possible and, in particular, how free and equal citizens committed, as Rawls

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later put it, to a diversity of reasonable comprehensive doctrines can find a mutually agreeable (and stable) basis for the organization, for mutual benefit, of their social lives.

Rawls and incommensurability That Rawls was a commensurator is not a proposition that I have very frequently seen or heard asserted. The literature about incommensurability is very nearly completely innocent of any reference to Rawls as an important contributor to the project of bringing, into a situation of disciplined comparison, options which are, prima facie, incomparable. Nevertheless, Rawls did make two crucial contributions to our understanding of the prospects for commensurating the (apparently) incommensurable. These were: (a) the normalizing method of commensuration that is implicit in the use of original position argumentation, and (b) the distributive model for commensuration which emphasizes the importance, and provides social recognition for, the devolution of decisional responsibility to individual citizens. I take these points in order.

Normalization and the original position If an individual A ranks an option Oj higher than O 2 because it is better in relation to his understanding of the good (or given his weighting of the decision-relevant standards of assessment) and B ranks O 2 higher than Oj because it is better in relation to her different understanding of the good, then these options are, for any collective constituted by A and B, prima facie incomparable, or incommensurable, with one another. This is a situation that Rawls had clearly in mind when he suggested, in A Theory of Justice, that, absent a public conception of the good, there could be, within a teleological framework, no public conception of the right and, in particular, no conception that would rank-order options relating to constitutional fundamentals or the basic structure of society, where a consensus of reasonable judgements is clearly vital (as it might not be in other cases). Without consensus at this level, there would be, as Rawls clearly understood, no basis for securing the benefits of cooperation for mutual advantage. We would not, in this situation, inhabit a well-ordered society. How are we to tackle this difficulty? If it is diversity that creates a difficulty of commensuration, then perhaps this difficulty can be overcome if we reduce diversity compatibly with giving it social recognition. It is this seemingly impossible feat that Rawls essayed in his work, especially in A Theory of Justice.

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How did Rawls propose to reduce diversity? By normalizing the social contractors—by making each of them the same as all the others. And once they are the same, of course, their judgements about constitutional fundamentals will also be the same and the problem of commensuration will be solved. Of course, not all normalizations are legitimate. Rawls himself recognized that we can reduce (at least expressed) diversity of judgement by coercion and many of his commentators drew attention—they thought damagingly— to the fact that diversity is lessened through ideological mechanisms, for example through attempts, crude or subtle, to control what people believe and value. So the project of normalization, if it is to be successful within the framework of a democratic culture, has to meet two criteria. First, there has to be a technology of normalization, or reduction of diversity. Secondly, there has to be a rationale for the use of such a normalizing technology. Rawls's technology of normalization is familiar. It involves the original position and, in particular, the veil of ignorance. We are asked to imagine that social contractors, considering what constitutional fundamentals might serve to promote cooperation for mutual benefit between free and equal citizens, do so subject to a restriction on their knowledge. No individual knows, for instance, "his place in society, his class position or social status . . . his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like." Accordingly, no individual can, in his own deliberations about constitutional fundamentals, rank proposals about them in accordance with how well he is likely to fare if these proposals are implemented. How is he to rank them, then? In accordance with how any person is likely to fare if they are implemented. And, according to Rawls, when individuals deliberate in this way, how one person ranks proposals is the same as how any other person ranks them—this is the element of normalization, and comparability, on a collective level, is therefore achieved. The reduction of diversity which is effected by the original position, and, specifically, by the veil of ignorance, enables us to render commensurable, in a collective sense, those proposals about the basic structure which, otherwise, could not be ranked in a way that could, in the face of antecedent diversity, be considered socially binding. Of course, commensurability is purchased at what might be considered a high price, namely, the normalization of the social contractors. How is this normalization to be justified? Rawls's answer was, I think, threefold. First of all, there is, if you like, a specifically ethical rationale for the use of original position argumentation and for the deployment of the veil of ignorance. After all, what it prevents the use of is, precisely, information that it would be ethically improper to use as a basis for the assessment of alternative basic structures. It prevents the use of information that people would, characteristically, use in a self-interested way. As Rawls said: "One excludes

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knowledge of those contingencies which set men at odds and allows them to be guided by their prejudices." Blocking the use of such information forces individuals to think impartially, that is, ethically, about the terms of their association with one another. On the other hand, the information about themselves that is available to individuals deliberating about the basic structure does, according to Rawls, represent them as free and equal moral agents. There is, then, nothing arbitrary, according to this reasoning, about the reductions of diversity effected by deployment of the veil of ignorance. Insofar as each person, in a quasi-Kantian way, thinks of herself as denned in terms of her status as a free and equal citizen of a well-ordered society, she has reason to accept her normalization (as, specifically, morally improving). Secondly, as Rawls notoriously claimed, and spent three decades trying to demonstrate, an appropriately devised specification of the initial situation (for the choice of the basic structure) will yield principles regulating social life that can be affirmed, in reflective equilibrium, against our considered judgements of justice (as suitably pruned and adjusted). These principles, in other words, generate their own support when they are made the basis for social life. This is Rawls's well-known preoccupation with what he came to call, in Political Liberalism, the question of stability. I will consider this argument further in the next section. Finally, and this is what I was alluding to earlier, when I mentioned the distributive model, what suitably normalized parties to the original position agree to actually provides a great deal of social/institutional recognition of their antecedent diversity in normative judgements. For the basic structure, which Rawls suggested we would agree to, is one which prioritizes a system of individual rights, especially of opinion, conscience, and the like, and hence creatively evades the demand for more specific forms of commensuration that would be incompatible with our status of free and equal citizens (given the reasonableness of much of the diversity of judgements that we experience). This will bear some explication. (It is point (b) above.) Liberty of conscience and commensuration via separation I said, earlier, that Rawls, as commensurator, was concerned to provide for the assessment of proposals about the basic structure while also giving due recognition to (reasonable) doctrinal diversity. The original position answers the first need. What serves the second? Simply the fact that suitably normalized social contractors agree to an allocation of rights which protects and nurtures diversity. According to Rawls, "it seems that equal liberty of conscience is the only principle that the persons in the original position can acknowledge." He continues: "They cannot take chances with their liberty by permitting the dominant religious or moral doctrine to persecute or to

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suppress others if it wishes." What the contractors agree to, then, is precisely a device, a system of liberties, including, crucially, a liberty of conscience, that protects diversity of belief, commitment, and behavior. As he puts it in Political Liberalism, "within the scope allowed by the basic liberties and the other provisions of a just constitutional regime, all citizens can pursue their way of life on fair terms." 28 All this is straightforward, but it points, I believe and as others have also seen, to a new way of understanding what commensuration might actually amount to. It points, in short, to a second way of commensurating that needs to be given more recognition by philosophical (and other) discussants of this topic. Sometimes, when we need to decide, collectively, how to arrange our lives, what is at stake is a specific concrete plan of action that we, the relevant parties, all need to play a role in executing. For instance, if friends are trying to decide how to spend time together, they might see this as involving coming to an agreement about, say, where to have dinner and what, specifically and concretely, to do afterwards (go to the movies or perhaps the pub). Such collective decisions are, typically, domains of compromise and negotiation, but what emerges from these deliberations is an agreement on something specific that will be a joint engagement by all involved parties. Gommensuration, in this case, is achieved when we have a collectively agreed ordering of concrete and specific behavioral options—we prefer Pizza Hut plus movie to McDonald's plus pub. Obviously, this is not what commensuration a la Rawls amounts to. It is not that the social contractors agree, for instance, about what they, or the ordinary people whom they represent, will believe. Indeed, such an approach to the problem of commensuration would be entirely out of keeping with Rawls's larger project which is, precisely, to safeguard the diversity of reasonable comprehensive doctrines. In what sense, then, can the results of original position deliberation be considered a form of commensuration? There are, in fact, two primary modalities of commensuration, and Rawls's work illustrates the second, which has, in my view, been too little commented on in general. The first and more familiar modality (which is not Rawls's) involves developing a field of calculation in which the various options and the standards used to assess them are brought together, and trade-offs among the standards are identified to the degree required to produce an unequivocal ranking of the options. Cost-benefit analysis is a good example of this modality of commensuration. You might have two or more options for choice, O1; . . . On, and two or more standards for assessing the options Si, .. . Sm, and, once we determine how to establish a common currency among the standards, we can identify a determinate ranking of the options and hence render them

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commensurable. Since, in typical cost-benefit analyses, many of the standards can already be expressed in monetary terms (input costs and potential revenue), commensuration will usually involve pricing out those standards which are not already expressed that way, for example by determining stakeholders" willingness to pay. 30 There is, however, a kind of commensuration without trade-offs, as theorists such as John Gray, Gass Sunstein, and Friedrich Hayek have recognized. Gray puts the matter clearly: The importance of several property for civil society is that it acts as an enabling device whereby rival and possibly incommensurable conceptions of the good may be implemented and realized without recourse to any collective decision-procedure . .. One may even say of civil society that it is a device for securing peace by reducing to a minimum the decisions on which recourse to collective choice—the political or public choice that is binding on all—is unavoidable.31 This is, if you like, commensuration as separation. Instead of bringing together the various standards and options and stakeholders in a field of calculation, we keep them apart. By separating the spheres (of decision-making), we ensure that diversity is respected and facilitated: each person is the judge of their own situation and makes the choice that best reflects their understanding of it. 32 And this is, of course, what Rawls's allocation of rights of conscience (and the like) also ensures, just as several property does. Just as each person, in a regime of freedom of commerce, can dispose of and acquire the goods that he wants, so too in a regime of several mentalities can each person form and express the beliefs and values that she thinks appropriate. The only remaining question is more obscure: What makes this a system of commensuration? The crucial point is this. Although individuals in a system of freedom of conscience do not agree about what, substantively, it is appropriate to believe, they do agree about a distributional issue, namely, about how beliefs and commitments should be distributed among individuals. Each of us, from behind a veil of ignorance, agrees, in effect, that distribution of attitudes is best in which each individual has been able to freely (and conscientiously?) arrive at the attitudes by which she will organize her own life. This distribution of attitudes to individuals is ranked ahead of any other distribution by the original position argumentation. It is in this sense, this distributional sense, that Rawls's arguments lead to a commensuration of options. (And the options are distributions, not concrete and specific behavioral alternatives.) This, I think, is a legacy of Rawls's work that deserves exploitation. How can we rethink the project of social decision-making or social choice to

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recognize and give proper emphasis to such a distributional modality of commensuration and to the normalizing technology that gives rise to it? This model is authentically democratic. It tries, however precariously, to balance the need for consensus with the value, the positive, affirmative value of diversity. It deserves a more prominent place in our thinking about the polity and to give it such a place would be a suitable tribute to Rawls's attempt to articulate and illustrate it.

Rawls's pragmatism

Perhaps the most interesting, and neglected, aspect of Rawls's legacy is the model for a form of pragmatism in ethical theorizing that he developed in A Theory of Justice. Although Rawls's pluralism and his ideas about original position reasoning have received considerable attention, discussion of Rawls as a pragmatist is largely limited to non-English-speaking authors. 33 In fact, A Theory of Justice provides a detailed, generalizable model for pragmatically oriented theorizing in ethics and politics across a range of issues. This model is enunciated, specifically, in Rawls's analysis, in sections 22 and 23, of the circumstances of justice and of the formal constraints on our understanding of justice. The basic ideas are obvious enough, if not much discussed, and a short summary (and amplification) will therefore suffice. First of all, we need to understand that Rawls was trying to determine, in effect, which principles of sociability are fit to play a certain role in the organization of our collective lives. His analysis of justice was therefore not a conceptual analysis, but, rather, an exercise in armchair social theory. The question was not, or anyway was not exhausted by: What is the current understanding of justice in our society? (This is what theorists who assimilate Rawls's work to the coherence theory seem to think.) The question is, rather: What sort of understanding ofjustice, if it were propagated and if there were uptake by most citizens, would function effectively in the circumstances which make such an understanding socially important? Rawls's analysis was, then, pragmatic, not conceptual. Rawls put this clearly enough: The intuitive idea ofjustice as fairness is to think of the first principles of justice as themselves the object of an original agreement in a suitably defined initial situation. These principles are those which rational persons concerned to advance their interests would accept in this position of equality to settle the basic terms of their association. It must be shown, then, that the two principles ofjustice are the solution for the problem of choice presented by the original position. In order to do this, one must establish that, given the circumstances of the parties, and their knowledge, beliefs, and

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interests, an agreement on these principles is the best way for each per son to secure 34 his ends in view of the alternatives available. It is, I repeat, a fact about how principles might function that justifies the choice of these principles as principles of social coordination for our society. That they enable "each person to secure his ends," subject to certain circumstances, conditions, and constraints, is their justification, not that they reflect some antecedent understanding of what justice is, metaphysically or conceptually. (This, by the way, shows why Rawls's approach is not subject, or at least is not subject for the reasons which are usually adduced, to the charge that it provides inadequate ethical leverage against such existing understandings ofjustice as may, of course, reflect ideological thinking. Rawls's approach is meant, specifically, to correct for mistaken understandings that might nevertheless be widely diffused. And the basis for correction is, of course, a pragmatic one: How well does this understanding facilitate the achievement of certain goals?) In view of how little comment this aspect of Rawls's approach has attracted—that is, its pragmatic orientation—it is difficult to exaggerate the importance of these considerations, not only for Rawls's specific project, but, indeed, for ethico-political theorizing in general. From a pragmatic point of view, the question is always, What is good in the way of belief? How can our aims as individuals and collectively best be promoted by our system of beliefs and practices? This methodological readjustment is, I think, a contribution by Rawls to our thinking in these areas that is truly revolutionary in potential. Let's see, in detail and with some amendments, how pragmatic analysis works in relation to normative concepts and principles. Rawls explicitly identified two sorts of considerations that are relevant to such analysis and implies a third. First of all, Rawls noted that, in order to determine what sort of principles might be fit to play a certain role, we must understand what circumstances make it necessary to develop and propagate such principles. And the reasoning, largely implicit in Rawls, is obvious enough. Suppose, for instance, that scarcity of supply relative to demand for social primary goods, in Rawls's terminology, is characteristic of our situation. This is part of what makes the propagation of distributional principles and practices necessary: given scarcity and certain other factors, people will not collectively and automatically selfequilibrate to ensure that demand does not outstrip supply. But, of course, this fact must also be taken account of in the development of precisely these principles, which, in particular, will not be fit to play the role ofjustice if they just assume away the problem of distribution by presupposing, for instance, that individuals will spontaneously adjust their demands to the supply available

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to fulfill them. (Bruce Ackerman's account, in Social Justice in the Liberal state, is particularly clear on the importance of these circumstances. ) Secondly, Rawls noted that, in order to determine what sort of principles might be fit to play a certain role, we must understand what (formal) constraints on such principles are reasonable to impose, at least tentatively, as an expression of the function which we expect such principles to discharge. (Given the pragmatism of Rawls's approach, the epithet "formal" was, I think, unfortunate.) Again, the reasoning is obvious. If we expect principles of justice to play a role in settling certain sorts of disputes that might arise in our society, then, obviously, they will have to exhibit certain sorts of features. One of Rawls's constraints is, of course, that "a conception of right must impose an ordering on conflicting claims," a requirement which, according to Rawls, whose pragmatism was plainly in evidence here, "springs directly from the roles of its principles in adjusting competing demands." (If we are in dispute and appeal to the right as a basis for settling our dispute, but it, the right, fails to order our claims, then it contributes nothing to settling the dispute we'd tried to use it, as a tool, to settle. (This is, of course, Rawls's way of recognizing the importance of commensuration!) Finally, I note, distinguishing what Rawls himself had run together, that, in order to determine what sort of principles might be fit to play a certain role, we must understand what capacities and attitudes human beings are likely to bring to the situations, in which these principles might be deployed, that will support their deployment in those situations. (This is the "possible" aspect of Rawls's analysis of the "normal conditions under which human cooperation is both possible and necessary.") In this case, principles and practices cannot be propagated, let alone play a role in adjusting people's relations with one another, if, for instance, there is some (relatively) insuperable barrier, cognitive, affective, or institutional, to their successful uptake. (Rawls's analysis of feasibility considerations in Part Three of A Theory of Justice is directed, in part, to an examination of these sorts of issues.) In my book Free Public Reason,37 I argued, for instance, that the "reasonableness" of individuals is, in this sense, a capacity, or perhaps an attitude, that needs to be widespread in a given community if certain sorts of social relations are to be possible in that community. This, I will say, is a condition for justice. It is circumstances, conditions, and constraints, in the senses identified, that play a crucial and largely unnoticed role in Rawls's pragmatic analysis of justice. In short, we try to identify principles of justice such that: because of the conditions for justice—for example, people's reasonableness; these principles can meet the demands specified by the formal constraints onjustice;

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in the circumstances of justice—for example, despite the relative scarcity of supply with respect to demand. Notice, in particular, that an analysis conducted on these terms cannot be confused with conceptual analysis, even if that ideal is interpreted rather loosely. Although there may be certain conceptual elements involved in articulating the constraints on justice, even in this case functions are to the fore—What do we want to use the principles (and practices) of justice to do? And, certainly, claims about the conditions for and circumstances of justice are, although usually highly abstract and general, matters of fact rather than matters of meaning. We are trying to design a tool for use by certain kinds of agents to accomplish certain sorts of purposes in a certain kind of environment, and our problem is one of practical functional design, not of conceptual analysis or metaphysical speculation about The Good or The Right. This, I submit, is the proper way to conceptualize Rawls's method of theorizing about justice. He was primarily concerned to design evaluative tools that "can perform their practical function well." A pragmatic approach is, on this account, the right one for principles and practices that superintend the social relations of human beings. They are tools and should be theorized as such. As Richard Rorty says: "Pragmatism treats every such [conceptualization] ... as an experiment, designed to see if we can get what we want at a certain historical moment by using a certain language." Or, as Elizabeth Anderson puts it: [VJalue judgments are justified by showing that they can perform their practical function well. This is done by showing that it is rational to use them to guide our deliberations and attitudes. So instead of saying that it is rational to value something because it is good, pragmatism says that it is 40 good because it is rational for us to value it. The suggestion that political theory is based on the functional design of social tools for collective use is, then, Rawls's third great legacy to political theory, or so I maintain. Rawls, like Quine before him, stands revealed, ultimately and contrary to widespread earlier understandings, as some form of unselfconscious, perhaps even diffident, pragmatist about the work of the political thinker. This point is still, of course, insufficiently appreciated and Rawls's pragmatism is, therefore, his least noticed legacy to political thinking.

Remembering Rawls

To say that, without A Theory of Justice, there might not be any (non-Marxist) political theory in Anglophone societies is, very nearly, a cliche. Certainly,

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what political theorizing we have exists in the light cast by that great work. It became a touchstone to thinkers working both at the level of high theory and at the level of concrete practice. Like that other great work of post-war Amer41 ican philosophy, Thomas Kuhn's The Structure of Scientific Revolutions, it has, however, been as widely misunderstood as it has been discussed and praised. Perhaps surprisingly, there is even something common to their two projects. Both were concerned about the prospects for commensuration in the face of plurality. One appropriate response to Rawls's legacy would be to learn to read his work, for example through Kuhn, in a way that draws on work outside the sometimes too closely drawn boundaries of political and ethical theory. Rawls himself was expansive in his intellectual range of interests. Reading Rawls through the work of cognitive psychologists, decision theorists, legal theorists, epistemologists, and the like would be an appropriate tribute to his own breadth of reading.

Notes 1.

2.

3. 4. 5.

6.

7.

The phrase "John Rawls" yields more than 54,000 hits on the GoogleTM Internet search engine. The Philosopher's Index shows more than 1,700 hits on "Rawls," and the Infotrac multidisciplinary database of articles, ASAP, shows more than 2,400 articles indexed to the name "Rawls," across a wide range of fields. These data show one way of measuring Rawls's influence and legacy. See my article "Pluralism and Liberalism," in Gerald Gaus and Chandran Kukathas (eds), The Sage Handbook of Political Theory (London: Sage, 2005) for references. The most important are: W.B. Gallic, "Essentially Contested Concepts," Proceedings of the Aristotelian Society (1955—56), 167—98; Stuart Hampshire, Morality and Conflict (Oxford, UK: Basil Blackwell, 1983); Isaiah Berlin, Four Essays on Liberty (London: Oxford University Press, 1969); and, more recently, J. Donald Moon, "Liberalism, Autonomy, and Moral Pluralism," Political Theory 31 (2003), 125-35. See my book Incommensurability and Commensuration (Aldershot: Ashgate, 2003). See my article "Rituals of Impartiality, "Social Theory and Practice?! (2001), 65—81. See my article "Expertise, Democracy, and Applied Ethics," Journal of Applied Philosophy 15 (1998), 49-56. For a subtle account articulating directly to RawIsian concerns, see Martha Nussbaum, "Moral Expertise? Constitutional Narratives and Philosophical Argument," Metaphilosophy33 (2002), 502-20. See Andrew Fiala, "Toleration and Pragmatism," Journal of Speculative Philosophy 16 (2002), 103—16, and also my article "Relativism and Reflective Equilibrium," TheMonistll(1988), 420-36. See my article "Ethical Pluralism and the Role of Opposition in Democratic Politics," The Monist 73 (1990), 437-63, and, more recently, John Gray, "Where Pluralists and Liberals Part Company," International Journal of Philosophical Studies 6 (1998), 17-36.

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8. John Gray, Post-Liberalism (New York: Routledge, 1993), 65. 9. Berlin, Four Essays on Liberty (London: Oxford University Press, 1969), 1. 10. PL, 63. 11. PL, 56,58. 12. Cass Sunstein, "Incommensurability and Kinds of Valuation," in Ruth Chang (ed.), Incommensurability, Incomparability, and Practical Reason (Cambridge, MA: Harvard University Press, 1997), 238. 13. PL, 56. 14. See my article "Incommensurability and Commensuration," Studies in the History and Philosophy of Science 32 (2000), 429-47. See also Peter Achinstein, "Subjective Views of Kuhn," Perspectives on Science 9 (2001), 423-32. 15. T.S. Kuhn, The Essential Tension (Chicago: University of Chicago Press, 1977), 331. 16. See Paul Hoyningen-Huene, Reconstructing Scientific Revolutions (Chicago: University of Chicago Press, 1993), esp. 151—2. See also my article "A 'Demographic' Approach to the Rationality of Science: The Wave Model," Methodology and Science 26 (1992), 244-56. 17. Note that this demonstration does not depend on treating diversity as an empirical consequence of strong pluralism. That diversity in judgements or in weighting is valuable is not a proposition whose demonstration depends on such ontological matters. Tactical pluralism is enough to ground it. And this is why I said Rawlsian business in this area was unfinished. 18. See Christopher Cherniak, Minimal Rationality (Cambridge, MA: MIT Press, 1986), and also my article "Transcendence and Conversation: Two Conceptions of Objectivity," American Philosophical Quarterly 30 (1993), 87-108. 19. The economist James March has made a great deal of this point. See, in particular, "The Technology of Foolishness," injames March and Johan Olsen (eds), Ambiguity and Choice in Organizations (Bergen: Universitetsforlaget, 1976). March emphasizes, in particular, that rational-choice models are mistaken in (largely tacitly) assuming that choice is a function of preferences. Rather, he says, choices are made, frequently, in order to understand what our preferences might be — rather than as an expression of them. 20 The canonical anthology edited by Ruth Chang, Incommensurability, Incomparability, and Practical Reason contains, in its index, but three references to Rawls and none of these amounts to a portrayal of him as someone preoccupied with questions of commensurability. Searching The Philosopher's Index on the Boolean product of "Rawls" and "incommensurability" also yields only three entries (one by John Gray), but, again, none of them treats Rawls, as I propose to do, as "the Great Commensurator." Charles Altieri is a notable exception: "Rawls seeks a social philosophy capable of developing a model of judgment that can negotiate competing and 'incommensurable' visions of the good without subordinating them to any encompassing metatheory." (Charles Altieri, "Judgment and Justice under Postmodern Conditions", in Reed Dasenbrock (ed.), Redrawing the Lines (Minneapolis: University of Minnesota Press, 1989), 76)

The legacies of John Rawls 21.

22.

23. 24. 25. 26. 27. 28. 29.

30. 31. 32.

33.

34. 35. 36. 37. 38.

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To use the word "normalization" (and its cognates) in this context is, inevitably, to sound Foucauldian echoes. This may seem surprising or perhaps undignified in a discussion of Rawls's work. I do not agree with this response. Foucault, largely unnoticed by those analytic philosophers who scoffed, and still scoff, at his work, has a powerful, also quasi-Kantian, critique of what Rawlsians might call illiberal social orders. See my paper "Two Conceptions of Autonomy," Economy and Society 27 (1998), 28-49, and, more recently, Paul Healy, "A'Limit Attitude': Foucault, Autonomy, Critique," History of the Human Sciences 14 (2001), 49—68. See my Incommensurability and Commensuration for an overview of the literature on incommensurability in value theory. This particular way of characterizing incommensurability in a social context brings out the relevance, to the understanding of incommensurability, of the work of Kenneth Arrow on social choice. For helpful commentary, see, for instance, Dennis Mueller, Public Choice II (Cambridge, UK: Cambridge University Press, 1989), esp. Ch. 20. TJ, 137. Ibid., 19. PL, 98. I develop an interpretation of this goal in my paper "Rituals of Impartiality." TJ, 207. PL, 155. Most notably John Gray. See his Post-Liberalism, 314: "The importance of several property for civil society is that it acts as an enabling device whereby rival and possibly incommensurable conceptions of the good may be implemented and realized without recourse to any collective decision-procedure." See, for instance, Peter Bogetoft and Peter Pruzan, Planning with Multiple Criteria (Amsterdam: North-Holland, 1991). Gray, Post-Liberalism, 314. Cf. Sunstein, "Incommensurability and Kinds of Valuation," 234: "[T]he traditional liberal effort to use law so as to create diverse social spheres—families, markets, politics, religious organization—makes space for different kinds of valuation." "Rawls" AND "pluralism" gets 70 "hits" in The Philosopher's Index; "Rawls" and "original position" gets 113. A Google search on "Rawls' pragmatism" yields two hits, one now inaccessible and one to my Stanford Encyclopedia article on "Original Position." The Philosopher's Index gives half-a-dozen hits on "Rawls" AND "pragmatism," but none is specifically on Rawls as a pragmatist. TJ, 102-3, emphasis added. Bruce Ackerman, Social Justice in the Liberal state (New Haven: Yale University Press, 1980). TJ, 133-4. Free Public Reason (Oxford, UK: Oxford University Press, 1996). See G.A. Cohen's "Facts and Principles," Philosophy and Public Affairs 31 (2003), 211—45. On Cohen's account, pragmatically derived principles of justice cannot themselves be "ultimate" principles, which must on Cohen's analysis rest on

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The Legacy of John Rawls fact-insensitive principles, but only regulatory principles. Cohen (242) anticipates and counters my own most obvious reply: "Fine. I accept your distinction between basic principles and principles of regulation. But why should I care about basic principles? I care about what happens in the world, and the principles of regulation that we adopt in the light of the facts determine that." "The response is unsustainable [Cohen replies] because we necessarily have recourse to basic principles to justify the principles of regulation that we adopt. . ."

39. 40. 41.

Certainly we do, and, for the pragmatist, that principle is, simply, that we adopt for the purposes of living together for mutual advantage and as free and equal citizens those principles that advance this project. Of course, it may be difficult to ground or defend such a principle, but, anyway, it seems (a) pragmatist, (b) ultimate, and (c) fact-insensitive, while (d) likely to yield something like the two principles of justice in something like contemporary circumstances in what Rorty calls "the North Atlantic democracies." Richard Rorty, "Inquiry as Recontextualization," in his Objectivity, Relativism, and Truth (Cambridge, UK: Cambridge University Press, 1990), 98-9. Elizabeth Anderson, "Practical Reason and Incommensurable Goods," in Chang (ed.), Incommensurability, Incomparability, and Practical Reason, 91—2. Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1970).

NAME INDEX

Achinstein, Peter 21 On Ackerly, Brooke 120n Ackermann, Bruce 22, 30n, 108, 119n, 211n Ainslie, Donald C. 19n Alexander, Larry 35, 47n, 48n Altieri, Charles 21 On Anderson, Elizabeth 212n Anderson, Perry 22, 30n Apel, Karl-Otto 108, 119n Aquinas, Thomas 89,112 Aristotle 38-41, 44, 45, 91, 161, 173n Arneson, Richard 35, 43, 47n Arrow, Kenneth 21 In Audi, Robert 122n, 127, 129, 147n, 148n Barry, Brian 22, 30n, 118n Beitz, Charles 8, 18n, 19n, 191n Bell, Derek R. 19n Benhabib, Seyla 17n, 111, 118n, 120n, 122n Benson, Peter 20n Berlin, Isaiah 117, 118n, 136, 197, 198, 209n, 210n Bernstein, Alyssa 66n Bernstein, Mark 18n Bird, Colin 81n Boettcher, James 7, 124-51 Bogetoft, Peter 21 In Bohman, James 117n, 120n, 122n Brake, Elizabeth 5, 67-84 Brennan, Samantha3 On Brooks, Thorn 1—21, 66n, 176n Brower, Bruce 30n Brown, Jonathan 19n Buchanan, Allen 30n, 31 n, 191 n Campos, Paul F. 82n Caney, Simon 18n, 19n, 30n, 191 n Carruthers, Peter 19n

Carter, Stephen L. 124, 145n, 148n Cavallero, Eric 19n Chang, Ruth 21 On Chatterjee, Deen 10 Cheng, Chung-ying 20n Cherniak, Christopher 21 On Clifford, William 73-76, 83n Cohen, G. A. 211-12n Cohen, Joshua 80n, 108, 119n, 121n, 122n Coleman, S.J.John A. 150n Confucius 20n Conkle, Daniel O. 148n, 150n Cronin, Ciaran 30n D'Agostino, Fred 7, 17n, 195-212 D'Amato, Neal 49n Daniels, Norman 9 Dancy, Jonathan 104n Dasenbrock, Reed 210n Davion, Victoria30n, 149n De Greiff, Pablo 30n De Marneffe, Peter 150n Deweyjohn 156, 158 Dombrowski, Daniel A. 19n, 104n, 145n, 150n Dreben, Burton 3In, 65—6n Dryzekjohn 122n Duggan, Kyla Ebbels 172n, 176n Dworkin, Ronald12-13, 15, 20n, 2In , 69, 79,81n, 84n, 108, 118n, 186, 193n Eberle, Christopher J. 133, 148n, 149n, 150n Eck, Diana 149n Elsterjon 44,49n Engelhardt, H. Tristram 69, 81n Estlund, David 30-ln, 33n, 96-9, 103n, 104n, 105n, 118n, 121n Euben, Peter 49n Exdelljohn 193n

214

Name Index

Fan, Ruiping 20n Farrelly, Colin 19n Fiala, Andrew 209n Finnis,John 146n Fish, Stanley 120n Fleischacker, Samuel 66n Foucault, Michel 21 In Fowler, Robert Booth 148-9n Fraser, Nancy l l l , 1 2 0 n Freeman, Samuel 20n, 120n, 122n Freyenhagen, Fabian 1—21, 176n Gallic, W. B. 209n Galston, William 111, 118n, 120n, 121n Gaus, Gerald 209n George, Robert P. 111, 120n, 146n, 150n Glaucon 109 Gonzalez, Ana Marta 4,11, 17n, 152-76 Goodin, Robert 12In Gray, John 118n, 12In, 197, 204, 209n, 210n,211n Green, Karen 78, 84n Greenawalt, Kent 132-33, 146n, 148n, 150n Gutmann, Amy 108, 119n Haack, Susan 83n Habermas, Jiirgen 58, 59, 65n, 74, 101, 103n, 104n, 105n, 108, 119n, 123n Hahn, Lewis 83 n Hampshire, Stuart 8In, 197, 209n Hamptonjean 64n, 82n, 103n, 108, 118n Hardin, Russell 122n Hayek, Friedrich 204 Healy, Paul 21 In Hegel, Georg Wilhelm Friedrich 12, 20n, 82n, 156, 157, 167, 176n Heinrich, D. 17In Herman, Barbara 4, 12, 20n, 153, 155, 157-8, 161-2, 168-9, 170-ln, 171-2n, 173n, 174n, 176n Hertzke, Allen D. 148-9n Hill, Jr., Thomas 4, 155, 158, 160, 165, 170n, 171n, 172n Hobbes, Thomas 86, 91, 94, 98, 109, 161 Hoffman, Stanley 30n

Hollenbach, S.J., David 147n, 148n, 150n Holmes, Stephen 30n, 108,110,119n, 120n Houlgate, Stephen 12, 20n Howard, Matthew 80n Hoyningen-Huene, Paul 21 On Huemer, Michael 82n Hume, David 11,12,161,167 Jackson, Timothy P. 149n James, William 83n Jaspers, Karl 159, 172n Johnson, James 122—23n Juper, Andrew 18n Kant, Immanuel 4, 6, 11, 12, 16n, 17n, 44-5, 49n, 63, 66n, 70, 75, 81n, 83n, 85-7, 90-3, 100-1, 105n, 107, 152-70, 170n, 171n, 172n, 173n, 174n, 175n, 176n, 202, 21 In Kelly, Erin 19n, 47n Kelts, Steven 49n Knight, Jack 122-3n Korsgaard, Christine M. 4, 20n, 54, 64n, 104n, 152, 155, 158-9, 165-7, 168-70, 171n, 172n, 176n Krash, A. 2In Kuhn, Thomas S. 199, 209, 2lOn, 21 In Kukathas, Chandran 16n, 17n, 209n Kumar, Rahul 66n Kymlicka, Will 69, 77, 81n, 82n, 84n Laberge, Pierre 19n Laden, Anthony Simon 4, 50-66 Larmore, Charles 101, 103n, 104n, 105n, 106n, 108, 111, 119n, 120n, 121n, 146n, 147n Laslett, Peter 47n Lean, David 83n Lefort, Charles 117, 123n Leibniz, Gottfried Wilhelm 11,12 Lessnoff, Michael 47n Levinson, Sanford 148n Lloyd, Sharon 150n Lockejohn 91, 104n, 107 Luther, Martin 89 MacKinnon, Catherine 5, 15, 17n, 66n, 67-8, 71, 76, 77, 80n, 81n

Name Index McDermott, JohnJ. 83n McMurtry, John 84n McVeigh, Timothy 115 Macedo, Stephen 33n, 120n Mahoney, Jon 7,85-106 Maio, Giovanni 19n Manin, Bernard 122n March, James 21 On Martin, Rex 30n Mason, Carol 122n May, Simon 49n Mendus, Susan 82n Michelman, Frank I. 20n Mill, John Stuart 1, 60, 65n, 69, 73, 76, 83n, 83-4n, 107 Montaigne 90 Moon, J.Donald 209n Moore, G. E. 161, 173n Moreno, Jonathan D. 19n Moschella, Melissa 176n Mouffe, Chantal 118n, 123n Mueller, Dennis 21 In Mulhall, Stephen 17n Munoz-Darde, Veronique 80n Nagel, Thomas 15, 82n, 108, 119n Naticchia, Chris 8, 10, 16n, 19n, 177-94 Neal, Patrick 135, 148n, 150n Neiman, Susan 155, 171 n, 172n Nieli, Russ 115, 122n Nietzsche, Friedrich 43 Noggle, Robert 30n Nozick, Robert 1, 2, 5, 15, 16n, 52, 54, 64n Nussbaum, Martha C. 19n, 20n, 68, 80n, 81n, 209n O'Neill, Onora 18n, 153, 154, 17In Okin, Susan Moller 5, 30n, 67, 68, 78, 80n, 81n, 82n, 83-4n, 84n, 193n Olsenjohan 21 On Olson, Laura R. 148-9n Overall, Christine 84n Owen, David 66n Paine, Thomas 91 Pateman, Carole 80n Paton, H.J. 49n

215

Perry, Michael 141, 146n, 147n, 148n, 150n Pettit, Philip 16n, 17n Pierce, William 115 Pippin, Robert B. 170n, 171 n Plato 15,50,64,109,161 Pogge, Thomas W. 8, 18n, 19n, 20n, 47n, 191n, 192n Polemarchus 50 Prusak, Bernard 81 n Pruzan, Peter 21 In Quine, W. V. O. 208 Quinn, Philip L. 149n, 150n Rao, Neomi 15, 2In Rasmussen, David 148n Rawls, John 1-16, 17n, 18n, 22-4, 29, 34-47, 50-63, 67-77, 85-95, 97-102, 103n, 103-4n, 105n, 10712, 114, 116, 117n, 118n, 124-33, 136, 140, 142-5, 145-6n, 146n, 152, 154-65, 167, 168, 170, 172n, 177-91,191n, 193n, 195-209, 209n Razjoseph 77, 81n, 84n, 103n, 121n Reath, Andrews 20n, 155, 171n, 175n Regan, Donald H. 170n, 171 n Reich, Rob 49n Reidy, David 19n, 30n, 120n Resnik, David 9, 19n Richards, David A. J. 150n Richardson, Henry 33n, 66n Roemer, John E. 2 On Rorty, Richard 150n, 208, 212n Rosen, Stanley 172n, 173n Ross, W. D. 161 Rousseau, Jean-Jacques 66n Rowlands, Mark 19n Runciman, W.G. 47 n Sandel, Michael 17n, 111, 115, 118n, 120n, 122n, 149n, 150n Sanders, Lynn 120n Satz, Debra 49n Scanlon, T. M. 15, 54, 55, 64n, 65n, 99-100, 105n Schapiro, Tamar 49n, 64n, 66n Scheffler, Samuel 82n, 108, 118n Schiller, Friedrich 167 Schwartz, Adina 82n

216

Name Index

Schwarzenbach, Sibyl A. 12, 20n Sellars, Wilfrid 117 Sen, Amartya 64n Senn, Stephen 19n Sidgwick, Henry 161 Singer, Brent A. 18n Singer, Peter 19n Skorupski, John 81n Smith, Andrew 80n Smolin, David 148n, 149n Solum, Lawrence 128, 147n Sterba,James 149n Stern, Robert 33n Stone, Peter 49n Stoutjeffrey121n, 149n, 150n Sunstein, Cass 108, 113-14, 115, 121n, 122n, 204, 210n, 211n Swain, Carol 115, 122n Swaine, Lucas 12In Swift, Adam 17n Talisse, Robert Basil 7, 107-23 Tan, Kok-Chor 19n, 30n, 103n Taylor, Robert S. 5, 16n, 34-49 Teson, Fernando 19n Thero, Daniel P. 18n Thomson, Judith Jarvis 15 Thompson, Dennis 108, 119n

Thompson, Janna L. 84n Tomasi, John 82n Turner, Lisa 115 Veatch, Robert M.

19n

Waldron, Jeremy118n, 149n Walker, John D. 81n Weinstock, Daniel 31n Weis, Lael 49n Weithman, Paul 21n, 33n, 141-2, 145n, 147n, 149n, 150n Wenar, Leif 2, 10, 16n, 18n, 19n, 22-33, 103n, 192-93n Williams, Bernard 30n, 47n, 53, 58, 64n, 82n, 197 Wolf, Clark 30n, 149n Wolfe, Christopher 111, 120n, 146n, 150n Wolterstorff, Nicholas 114, 122n, 135, 137-8, 148n, 149n, 149n Wood, Allen W. 49n Young, Iris Marion 123n

111, 120n, 122n,

Zimroth, P. L. 2 I n Zipursky, Benjamin C.

20n

SUBJECT INDEX

Aristotelian principle 36, 38-40, 41, 44, 45 autonomy 37, 40, 43-5, 46, 89, 152, 161, 166-67 basic liberties 25, 26, 37, 42, 52, 110, 177, 203 "basic structure of society" 2, 16n, 24, 25, 27, 28, 39, 40, 41, 46, 48n, 50, 52, 195 bioethics 9ff, 19n, 69 burdens of judgement 18n, 75, 130 Categorical Imperative 152—3, 162—5, 167-70, 171n, 175n communitarianism5, 6, 10, 17n comprehensive conception of the good (also "comprehensive doctrines") 6, 24ff, 27, 28, 60, 70ff, 72, 79, 80, 82n, 85, 86ff, 92, 97, 102, 103n, 105n, 109, 119n, 120n, 127-30, 131, 177, 179, 182, 186, 191n, 203, 211n constitutional essentials 6, 7, 14, 20n, 24, 203 constructivism 6, 17fn, 161, 163 Contractualism 3, 16n, 18n, 18fn, 30, 54f, 56, 61,64n, 65n

fair equality of opportunity 3,5,9, 10, 16n, 26,34-49, 79, 186 feminism 5, 10, 67-84, 185, 188, 191n freedom of speech 6 7 , 7 7 global justice 8, lOff, 16n, 18n, 19n, 27-29, 30n, 177-94 Goetzv. Crossnan 13ff, 20n healthcare 9, 19n, 25 human rights 19n, 27, 31n, 32n, 162, 177-81, 183, 190, 191n, 202 Hypothetical Imperative 153,163, 165 intuitionism

law 12-15, 20n, 111, 186, 211n least advantaged, the (also "worst off") 3, 22, 26, 34, 35, 46, 48n legitimacy 2, 19n, 23ff, 30n, 58, 62, 72 lexical priority 3, 16n, 34—49 liberalism, political 2, 4, 6f, 8, 17n, 23ff, 60,63,67,85-106, 136 Martin s. Dugger 13ff, 20n multiculturalism 10 neutrality

decent peoples (also "decent societies") 8, 14, 27, 28, 29, 32n, 183, 189 difference principle 3,5,8,10,13,15,22, 23,34,35,37,39,42,46,47n, 183,189 difference principle, global 8, 183, 189 distinction between persons 4, 50—66 distributive justice 5, 9, 10, 34-49, 76, 177, 200,206 eighth amendment13ff equality 22, 25, 26, 27, 29, 57, 64n, 67, 69, 71, 76, 77, 79, 84n, 94, 116, 130, 143, 185, 189, 190, 191n, 202

4, 195, 198-99

5, 17n, 67-84, 92

Original Position 3, 4, 5, 7, 8, 9f, 13, 14, 15, 17n, 18n, 22, 26, 29, 36, 48n, 53, 54, 55, 57ff, 59, 65n, 178-9, 181, 188-9,201,203,205 original position, global 8, 18n, 29, 83n, 177, 178-9, 181, 187, 188-9 outlaw societies 180 overlapping consensus 7, 24, 3 In, 58, 86,92,93, 109, 186 perfectionism 43,47 Philosopher's Brief 145ff, 21 n

218

Subject Index

pluralism 6, 7, 19n, 24, 28, 30n, 92, 112, 139, 193n, 195, 196-200, 205, 210n political conception ofjustice 6ff, 22, 24-6,27,71,75,76, 126, 127, 131 principles ofjustice, two 3, 5, 8, 14, 17n, 26, 34, 42, 52, 53, 54, 58, 64n, 65n, 72,96, 182, 187, 196,207 priority of liberties 3, 4, 36, 41, 42, 45, 47, 47n, 48n priority of right 36, 42-5, 46, 161, 208 procedural justice 13 public reason 7, 10, 11, 18n, 25, 29, 30n, 62, 107-51, 195 public political culture 3, 6, 24ff, 27, 28, 115, 195 publicity 53 reasonable conditions 3, 26, 86, 89ff, 164, 193n reasonable doctrine (also "Conception") 6ff, 17n, 25, 26, 3In, 70, 87ff, 89ff, 93, 107, 126, 144, 164, 177, 192n, 193n, 202 reasonable person 17n, 24, 26, 28, 29, 43, 45, 89-91, 94, 98, 104n, 202 reciprocity 25, 29, 62

reflective equilibrium 3, 17n, 202 religion 7, 69-71, 73ff, 75, 80n, 82n, 85, 86, 109, 112, 124-51, 182-83, 184, 186, 188, 189-90, 191n, 197 Roe v. Wade 15 self-realisation 5, 16n, 34-49 self-respect 28, 42, 46 sense ofjustice 3, 4, 40, 43 stability 7, 22, 23f, 25, 29, 30n, 31n, 58, 64n, 109 toleration 19n, 30n, 60, 72, 86, 107, 180, 182, 190 truth 7 United States Supreme Court 14ff, 2 I n utilitarianism 4, 50-66, 195, 198 Vaccov. Quill 14, 20n veil of ignorance 3, 13, 14, 15, 26, 54, 59, 57ff, 178-80, 182,201 Washington v. Glucksberg14, 20n well-ordered society 3, 7, 17n, 58, 70, 81n