Beyond Classical Liberalism: Freedom and the Good [1 ed.] 1032405775, 9781032405773

Citation preview

Beyond Classical Liberalism

This book brings together diverse sets of standpoints on liberalism in an era of growing skepticism and distrust regarding liberal institutions. The chapters in the book: • Relate concerns for liberal institutions with classical themes in perfectionist politics, such as the priority of the common good in decision-making or the role of comprehensive doctrines. • Analyze how perfectionist intuitions about the political life affect our concepts of public reason or public justification. • Outline various moral duties we have toward other persons that underlie the liberal institutions or notions of rights functioning across the contemporary political landscape. • Explore various aspects of pluralism from within influential religious or philosophical traditions, applying insights from those traditions to issues in contemporary politics. The comprehensive book will be of great interest to scholars, students, and researchers of politics, especially those in political philosophy and political theory. James Dominic Rooney, OP, is Assistant Professor of Philosophy at Hong Kong Baptist University. He works primarily in metaphysics, medieval philosophy, philosophy of religion, and Chinese philosophy, with research interests in natural law theory, social ontology, the ethical and political implications of pluralism, and how norms of practical reason affect public reason theories of justification. He has published in Faith and Philosophy, dialectica,  American Journal of Jurisprudence, Journal of Church and State, International Philosophical Quarterly, and other venues. His most recent book is Material Objects in Confucian and Aristotelian Metaphysics: The Inevitability of Hylomorphism (2022). Patrick Zoll, SJ, is Professor of Metaphysics at the Munich School of Philosophy in Germany. He published a monograph on the debate between anti-perfectionist and perfectionist liberals which won the renowned Karl Alber Prize 2016 and was nominated for the Deutscher Studienpreis 2016: Perfektionistischer Liberalismus (2016). His other publications appeared in several journals: Journal of Ethics & Social Philosophy, Heythrop Journal, Faith and Philosophy, and Zeitschrift für Theologie und Philosophie. His most recent book is What It Is to Exist: The Contribution of Thomas Aquinas’s View to the Contemporary Debate (2022).

Beyond Classical Liberalism Freedom and the Good Edited by James Dominic Rooney and Patrick Zoll

Designed cover image: Suzuki Harunobu 鈴木 春信. Freeing a captured bird, c. 1769/70. Art Institute of Chicago. First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 selection and editorial matter, James Dominic Rooney and Patrick Zoll; individual chapters, the contributors The right of James Dominic Rooney and Patrick Zoll to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-032-40577-3 (hbk) ISBN: 978-1-032-70275-9 (pbk) ISBN: 978-1-032-70276-6 (ebk) DOI: 10.4324/9781032702766 Typeset in Sabon LT Pro by Apex CoVantage, LLC

Contents

Editor information List of contributors Acknowledgements Introduction to Beyond Classical Liberalism: Freedom and the Good

viii ix xv

1

JAMES DOMINIC ROONEY AND PATRICK ZOLL

PART I

Freedom and the good of liberal institutions 1 Republican freedom, social justice, and democracy

13 15

PHILIP PETTIT

2 Political perfectionism and spheres of state neutrality

30

STEVEN WALL

3 The common good of nations and international order

45

MARK D. RETTER

4 Contractual obligation and the good: beyond classical liberalism

63

STEPHEN HALL

PART II

Public reasonability and justification 5 Discursive equality and public reason THOMAS M. BESCH

79 81

vi

Contents

6 Perfectionist public reason liberalism: why public reason liberalism should be reconcilable with political perfectionism

99

PATRICK ZOLL

7 Liberal arts and the failures of liberalism

114

JAMES DOMINIC ROONEY

8 Perfectionism, political justification, and Confucianism

130

FRANZ MANG

PART III

The ethics of pluralism 9 Religion, democratic deliberation, and the requirement of fallibilism

145 147

PAUL BILLINGHAM

10 The perfectionist challenge to relational theories of justice

163

NATALIE STOLJAR

11 Toleration: beyond minimal, negative liberty

179

ANDREW R. MURPHY

12 Human rights in the natural law tradition

190

JONATHAN CROWE

PART IV

Perfectionist traditions

203

13 Well-being policy: consensus hallmarks and cultural variation

205

DANIEL M. HAYBRON

14 Aristotle, Athens, and modern democracy: prospects for a usable past V. BRADLEY LEWIS

222

Contents 15 Liberty and the good in the American founding

vii 241

VINCENT PHILLIP MUÑOZ

16 Confucian perfectionism and resources for liberties

251

MAY SIM

Index

269

Editor information

James Dominic Rooney, OP, is Assistant Professor of Philosophy at Hong Kong Baptist University, a Fellow of the Angelicum Thomistic Institute (Rome, Italy), and Research Fellow of the HKBU Centre for Sino-Christian Studies. A Dominican friar of the Province of St. Albert the Great (Chicago, IL), he works primarily in metaphysics, medieval philosophy, and Chinese philosophy. He also has significant research interests in philosophy of reli­ gion and ethical and political issues connected with these areas, including social ontology, the ethical and political implications of pluralism, and how norms of practical reason affect public reason theories of justification. He has published over forty articles in Faith and Philosophy, American Journal of Jurisprudence, Journal of Church and State, Religious Studies, Nova et Vetera, International Philosophical Quarterly, Philosophy East and West, and other venues, as well as popular articles in Law & Liberty, Church Life Journal, 儒家网, and 爱思想. His most recent book is Material Objects in Confucian and Aristotelian Metaphysics: The Inevitability of Hylomorphism (Bloomsbury Academic, 2022), and his current book project, Not a Hope in Hell, will be forthcoming from Routledge in 2024. Patrick Zoll, SJ, is Professor of Metaphysics at the Munich School of Philoso­ phy in Germany. He studied philosophy and theology in Munich, Madrid, and Bonn and held the Michael and Rita Mooney Visiting Professorship in Catholic Studies as a postdoctoral fellow at Saint Louis University, MO. As a result of his research on contemporary theories of perfectionism, liberalism, and public justification, he published a monograph on the debate between anti-perfectionist and perfectionist liberals which won the renowned Karl Alber Prize 2016 and was nominated for the Deutscher Studienpreis 2016: Perfektionistischer Liberalismus: Warum Neutralität ein falsches Ideal in der Politik Begründung ist (Karl Alber Verlag, 2016). His other publications include a monograph on the philosophy of Alasdair MacIntyre, an edited book about the taxation of wealth, and several articles on perfectionist jus­ tifications of public policies and other topics which appeared in journals, including Journal of Ethics  & Social Philosophy, Heythrop Journal, Faith and Philosophy, and Zeitschrift für Theologie und Philosophie. His most recent book is What It Is to Exist: The Contribution of Thomas Aquinas’s View to the Contemporary Debate (De Gruyter, 2022).

Contributors

Thomas M. Besch is Luojia Professor of Philosophy at Wuhan University and Honorary Associate at the School of Philosophical and Historical Inquiry, University of Sydney. He earned his Ph.D. from the University of Oxford in 2005. Before he came to Wuhan in 2015, he taught social and political philosophy at the University of Sydney, Australia, and at Bilkent Univer­ sity, Turkey. He also briefly worked as Research Fellow at the University of Hradec Kralove, Czech Republic, and as Tutor in Logic at Somerville College of the University of Oxford. His research focuses on contempo­ rary debates in Western social and political philosophy. His most recent work engages debates around John Rawls’s political liberalism, ideas of public justification, Rainer Forst’s neo-Kantian brand of critical theory, and the ideas of respect and equality at the heart of such views. He has published widely in this area, including papers in journals such as the Southern Journal of Philosophy, Philosophia, Theoria, Dialogue, Social Theory and Practice, and The European Journal of Philosophy, amongst others. He has also published a monograph in German, Über John Rawls’ politischen Liberalismus. Paul Billingham is Associate Professor of Political Theory in the Department of Politics and International Relations at the University of Oxford, and a Fellow of Magdalen College. His research focuses on political liberalism, public reason, religious freedom, and the place of religion in public life. His work has been published in numerous journals in moral, political, and legal philosophy, including Journal of Moral Philosophy, Politics, Philos­ ophy & Economics, Legal Theory, and The Philosophical Quarterly. He is one of the authors of Does Faith Belong in Politics?: A Debate, which is forthcoming with Routledge. Jonathan Crowe is Head of School and Dean of the School of Law and Justice at the University of Southern Queensland, where he also holds a Research Chair in Law and Justice. He previously taught at Bond Uni­ versity and the University of Queensland, and has held visiting positions at Georgetown University and the University of Texas at Austin. He is the author or editor of eleven books and well over 100 book chapters

x

Contributors and journal articles, primarily on legal philosophy, ethics and public law. His books include Australian Constitutional Law: Principles in Move­ ment (Oxford University Press, 2022), Mediation Ethics: From Theory to Practice (Edward Elgar, 2020, co-authored with Rachael Field), Natural Law and the Nature of Law (Cambridge University Press, 2019) and the Research Handbook on Natural Law Theory (Edward Elgar, 2019, co-edited with Constance Youngwon Lee). He co-edits the Journal of Legal Philosophy with Raff Donelson and Hillary Nye.

Stephen Hall is a professor at The Chinese University of Hong Kong (CUHK). Professor Hall joined the Faculty of Law at CUHK as a found­ ing member in 2005, after serving as Associate Professor in the School of Law at City University of Hong Kong (CityU) for three years. He was the founding director of the first Juris Doctor programs in Hong Kong, at both CityU and CUHK. Professor Hall is also a fellow of C.W. Chu College at CUHK, where he teaches a class on the origins of Western civilization. Before moving to Hong Kong, he was for six years a Senior Lecturer and Director of the European Law Centre in the Faculty of Law at the University of New South Wales (UNSW) in Sydney. Professor Hall has been admitted as a barrister and solicitor in Australia. Before joining UNSW, he practiced law as Counsel with the Australian Attorney-Gen­ eral’s Department, where he served for nine years. Professor Hall’s areas of research and teaching interest are Contract Law, International Law, the traditions of the Natural Law and the Common Law, and European and Roman legal history. Among his recent publications are Founda­ tions of Contract Law in Hong Kong (8th edition, LexisNexis, 2023), Ho & Hall’s Hong Kong Contract Law (6th edition, LexisNexis, 2022), Principles of International Law (7th edition, LexisNexis, 2022), “Pacta Sunt Servanda, the Common Law, and Hong Kong”, in Contract Law in Changing Times: Asian Perspectives on Pacta Sunt Servanda (Rout­ ledge, 2023), and “Natural Law, Human Rights and Jus Cogens” in The Cambridge Handbook of Natural Law and Human Rights (CUP, 2022). Professor Hall has received several awards for outstanding teaching, including CUHK’s highest teaching award. Daniel M. Haybron is the Theodore R. Vitali C.P. Professor of Philosophy at Saint Louis University. He received his Ph.D. in philosophy at Rutgers University. His research focuses on ethics and the philosophy of psychol­ ogy, with an emphasis on well-being and its psychology. He has pub­ lished numerous articles in these areas. He is the author of The Pursuit of Unhappiness: The Elusive Psychology of Well-Being (Oxford University Press, 2008) and, most recently, Happiness: A  Very Short Introduction (Oxford University Press, 2013). He has received a $5.1 million grant to study happiness and well-being from the Templeton Foundation with the Happiness and Well-Being Project.

Contributors

xi

V. Bradley Lewis specializes in political and legal philosophy, especially in classical Greek political thought and in the theory of natural law. He holds a B.A. from the University of Maryland and a Ph.D. from the Univer­ sity of Notre Dame. He has published scholarly articles in Polity, His­ tory of Political Thought, Southern Journal of Philosophy, Philosophy and Rhetoric, Communio, Josephinum Journal of Theology, Pepperdine Law Review, Oxford Journal of Law and Religion, and Proceedings of the American Catholic Philosophical Association, as well as chapters in a number of books. He is currently working on a book project provisionally titled “The Common Good and the Modern State.” He is also a fellow of the Institute for Human Ecology and serves as Associate Editor of the American Journal of Jurisprudence. Franz Mang (孟繁麟) is Assistant Professor at the Chinese University of Hong Kong. Dr. Mang’s research interests lie mainly in social and politi­ cal philosophy and ethics. He received his D.Phil. in Politics from Oxford University in 2017. Between 2010 and 2014, he was a Swire Scholar, on a fully funded scholarship, at St. Antony’s College of Oxford University. Dr. Mang received his B.A. in Philosophy and M.Phil. in Politics from the Chinese University of Hong Kong and the University of Hong Kong, respectively. He has published articles on Confucianism, perfectionism, public reason, and liberal neutrality. Vincent Phillip Muñoz is Tocqueville Professor of Political Science and Con­ current Professor of Law at the University of Notre Dame and a Distin­ guished Fellow of the Civitas Institute at the University of Texas at Austin. He won a National Endowment for the Humanities fellowship to sup­ port his most recent book, Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Reli­ gion Clauses (University of Chicago Press, 2022). Dr. Muñoz’s first book, God and the Founders: Madison, Washing­ ton, and Jefferson (Cambridge University Press, 2009), won the Hubert Morken Award from the American Political Science Association for the best publication on religion and politics in 2009 and 2010. His First Amendment church–state case reader, Religious Liberty and the American Supreme Court: The Essential Cases and Documents (Rowman & Lit­ tlefield) was first published in 2013 (revised edition, 2015) and is being used at Notre Dame and other leading universities. In 2019, he joined the editorial team of American Constitutional Law (11th edition, Routledge, 2019), the leading constitutional law casebooks designed for undergradu­ ate instruction. Muñoz’s scholarship has been cited numerous times in church-state Supreme Court opinions, most recently by Justice Alito in Fulton v. City of Philadelphia (2021) and by both Chief Justice Roberts and Justice Thomas in Espinoza v. Montana (2020).

xii

Contributors

Andrew R. Murphy is Professor in the Political Science Department at the University of Michigan. His research takes up the intersections between politics and religion in both historical and contemporary contexts; he is particularly interested in the emergence of religious liberty and liberty of conscience in early modern England and America, and the ongoing rami­ fications of these debates as they continue to unsettle American politics. In recent years, Murphy has focused on the life, career, and politi­ cal thought of William Penn, a figure who brought political theory and practice together in the early modern British Atlantic. He is the author of William Penn: A  Life (Oxford, 2019) and Liberty, Conscience, and Toleration: The Political Thought of William Penn (Oxford, 2016); and coeditor (with John Smolenski) of The Worlds of William Penn (Rutgers, 2019). An edition of Penn’s political writings, for the Cambridge Texts in the History of Political Thought series, appeared in 2021. His work on Penn continues the exploration of these topics begun in his first book, Conscience and Community: Revisiting Toleration and Religious Dissent in Early Modern England and America (Penn State, 2001). His more con­ temporary interests are reflected in his coauthored book (with David S. Gutterman of Willamette University) Political Religion and Religious Poli­ tics: Navigating Identities in the United States (Routledge, 2015) and his Prodigal Nation: Moral Decline and Divine Punishment from New Eng­ land to 9/11 (Oxford, 2008). He brings together historical and contempo­ rary political reflection in “The Past and Present (and Future?) Politics of Religious Liberty,” The Forum 17 (2019): 45–67. Philip Pettit is L.S. Rockefeller University Professor Human Values at Prince­ ton University, where he has taught political theory and philosophy since 2002, and since 2012–2013 has held a joint position as Distinguished University Professor of Philosophy at the Australian National University, Canberra. Born and raised in Ireland, he was a lecturer in University Col­ lege, Dublin, a Research Fellow at Trinity Hall, Cambridge, and Professor of Philosophy at the University of Bradford, before moving in 1983 to the Research School of Social Sciences, Australian National University; there he held a professorial position jointly in Social and Political Theory and Philosophy until 2002. He was elected fellow of the American Academy of Arts and Sciences in 2009, honorary member of the Royal Irish Academy in 2010, Corresponding Fellow of the British Academy in 2013; he has long been a fellow of the Australian academies in Humanities and Social Sciences. He was appointed a Companion of the Order of Australia in 2017. He has been awarded honorary degrees by the National University of Ireland (Dublin), the University of Crete, Lund University, Universite de Montreal, Queen’s University, Belfast, the University of Athens and the University of Buenos Aires. Common Minds: Themes from the Philosophy of Philip Pettit appeared from OUP in 2007, edited by Geoffrey Brennan, R.E. Goodin, Frank

Contributors

xiii

Jackson, and Michael Smith. Pettit works in moral and political theory and on background issues in the philosophy of mind and metaphysics. His recent single-authored books include The Common Mind (OUP 1996), Republicanism (OUP 1997), A Theory of Freedom (OUP 2001), Rules, Reasons and Norms (OUP 2002), Penser en Societe (PUF, Paris 2004), Examen a Zapatero (Temas de Hoy, Madrid 2008), Made with Words: Hobbes on Mind, Society and Politics (PUP 2008), On the People’s Terms: A Republican Theory and Model of Democracy (CUP 2012), Just Freedom: A Moral Compass for a Complex World (W.W. Norton 2014), The Robust Demands of the Good: Ethics with Attachment, Virtue and Respect (OUP 2015), The Birth of Ethics (OUP 2018) and The State (PUP 2023). Mark D. Retter is Senior Research Fellow with the Cambridge Initiative on Peace Settlements and Associate Member of the Las Casas Institute, Blackfriars Hall, University of Oxford. Prior to this, he was a postdoc­ toral research associate on the Legal Tools for Peace-Making Project at the Lauterpacht Centre for International Law, and completed his doctoral studies, as a Gates Cambridge Scholar, at the University of Cambridge. Dr. Retter is currently writing Human Rights after Virtue, a monograph that examines the grounds for Alasdair MacIntyre’s human rights skepti­ cism and its relevance for the philosophy and law of human rights. His publications include (with Tom Angier and Iain Benson) The Cambridge Handbook of Natural Law and Human Rights (Cambridge University Press, 2023), and (with Marc Weller and Andrea Varga) International Law and Peace Settlements (Cambridge University Press, 2021). May Sim is Professor of Philosophy and Director of Asian Studies at the College of the Holy Cross in Massachusetts. She received her Ph.D. in Phi­ losophy from Vanderbilt University. Her dissertation, Aristotle’s Under­ standing of Form and Universals, was directed by Alasdair C. MacIntyre. She is the Director of the Boston Area Colloquium in Ancient Philoso­ phy, and served as the past president of a couple of regional societies. She was the 62nd president of the Metaphysical Society of America in 2013. Her publications include Remastering Morals with Aristotle and Confu­ cius (Cambridge University Press, 2007) and over 50 articles and book chapters on Eastern and Western philosophies. These essays include com­ parisons between Confucianism (primarily, early Confucians such as Con­ fucius and Mencius) and Western Philosophy (primarily, Ancient Greek Philosophers such as Plato, Aristotle and Epictetus), Daoism and West­ ern Philosophy, Confucianism and Daoism, Confucianism and Human Rights, as well as Eastern and Western accounts of metaphysics and eth­ ics. She is the contributing editor of The Crossroads of Norm and Nature: Essays on Aristotle’s Ethics and Metaphysics (1995) and From Puzzles to Principles?: Essays on Aristotle’s Dialectic (1999). Her current research includes two books: a Confucian account of human rights, and Metaphys­ ics and Ethics: East and West.

xiv Contributors Natalie Stoljar is Professor of Philosophy and Director of the Institute for Gender, Sexuality and Feminist Studies at McGill University. She holds a joint appointment in the Department of Equity, Ethics and Policy, Faculty of Medicine. Her research expertise is in social and political philosophy, feminist philosophy, and the philosophy of law. She has published numer­ ous articles and book chapters and is co-editor (with C. Mackenzie) of Relational Autonomy. Feminist Perspectives on Autonomy, Agency and the Social Self (OUP 2000) and (with K. Voigt) of Autonomy and Equal­ ity. Relational Approaches (Routledge 2021). Steven Wall is Professor of Philosophy at the University of Arizona, where he is also a member of the Center for the Philosophy of Freedom and a member of the Politics, Philosophy, Economics and Law Program. He works primarily on questions in political philosophy, but also has interests in ethics and philosophy of law. Professor Wall edits Oxford Studies in Political Philosophy, and is the author of Liberalism, Perfectionism and Restraint (Cambridge, 1998) and Enforcing Morality (Cambridge, 2023). He edited Perfectionism and Neutrality: Essays in Liberal Theory with G. Klosko (Rowman & Littlefield, 2003), Reasons for Action, with D. Sobel (Cambridge, 2009), and The Cambridge Companion to Liberalism (Cambridge, 2015).

Acknowledgements

Thanks, in addition, to the Angelicum Thomistic Institute (Rome, IT) and brothers in our Dominican and Jesuit communities for their support and encouragement throughout this project.

Introduction to Beyond Classical Liberalism: Freedom and the Good James Dominic Rooney and Patrick Zoll

General introduction On January  6, 2021, the US Capitol building was stormed by rioters pro­ testing the attempt of Congress to certify the election of Joseph Biden to the presidency. The event brought with it public outcry, as it was taken by many to be an assault on basic principles of democratic governance, and many called on the government to punish the protestors to the full extent of the law. However, the event also brought criticism from some quarters, who held that the condemnations of violence in the United States following the Capitol Hill riots and the earlier riots after the death of George Floyd were hypocriti­ cal in light of the way that Americans had previously praised pro-democracy protests in Hong Kong. Even more seriously, this was claimed to illustrate the failure of democracy as a viable mode of government. Skepticism about the value of liberal institutions goes deep and has pro­ moted rediscoveries of and fascination with various illiberal communitarian alternatives. Patrick Deneen has argued, in the widely discussed Why Liberal­ ism Failed, that the political establishment in America and Europe have failed to provide what the ideology of liberal institutions has long sought: equal­ ity, respect, and progress.1 Instead, liberal institutions have deteriorated into what Deneen and others have argued is the enforcement of a novel, uniquely liberal, orthodoxy of approved and forbidden political opinions. Despite having claimed to be neutral on matters of what John Rawls claimed were comprehensive religious, moral, or metaphysical doctrines, these authors argue that liberalism has revealed itself to be yet another comprehensive doc­ trine that aims to exert its dominance over all its rivals. These criticisms are not restricted to the ethereal world of intellectuals, but have taken corporeal form in new geopolitical configurations which aim to supplant the liberal national or international order as a superior way of life for human beings. This book takes a different stand, defending the moral or political legiti­ macy and relevance of liberal institutions that ensure equal rights to political participation by all citizens, freedom of speech and conscience, and require­ ments that state coercion be publicly justified. The authors in this book are

DOI: 10.4324/9781032702766-1

2

James Dominic Rooney and Patrick Zoll

not all committed defenders of liberalism in its recent form, and some might not describe themselves as liberals at all. The authors collected together here intentionally represent a broad collection of philosophical, moral, and reli­ gious traditions—with much room for disagreement on the justifications offered for their defenses of liberal governance. Nevertheless, these authors are united in working out political alternatives that navigate beyond the more well-known liberal consensus positions as well as the illiberal communitarian directions in recent political theory. In sum, the aim of this book is to bring together chapters which depict ways to go beyond a certain kind of liberalism. The kind of liberalism which is judged to be unsatisfactory is a liberalism that is closely associated with the work of John Rawls and his Political Liberalism.2 Broadly speaking, liberal­ ism involves commitment to values such as freedom or liberty, equality, and respect, emphasis on the protection of individual rights, and advocacy for democratic institutions such as the rule of law, elections, or the separation of powers. Given these characteristics, liberalism in political philosophy is from its very beginnings in the seventeenth century closely connected to the idea of limited government. The term ‘classical liberalism’ ordinarily refers to the views of John Stuart Mill or John Locke. This older liberal tradition did not break completely with the perfectionist tradition in political philosophy. According to this tradition, an important purpose of the state is to enable and promote the flourishing of its citizens. Founding figures of the liberal tradition such as Mill did not regard their liberalism as being in a principled conflict with perfectionism.3 Matters started changing beginning with an epistemic turn within political philosophy initiated in 1971 by the publication of Rawls’s seminal A Theory of Justice. Rawls tied the normative question of the scope and legitimacy of the use of coercive state power to the epistemological question of whether it can be publicly justified, that is, justified with considerations which are accessible as reasons to all reasonable members of the public.4 An important consequence of this epistemic turn was that it resulted in a kind of liberalism which is inherently anti-perfectionistic in nature. From the 1970s onward, it appeared that a commitment to liberalism could not be divorced from a com­ mitment to neutrality concerning the good.5 Limited government too seemed now to imply that the state should refrain from promoting or taking a stand on what a flourishing human life should be. Due to the dominance and lasting influence of the Rawlsian model of lib­ eralism over the last five decades, the liberal current has been largely diverted away from perfectionism. As such anti-perfectionist views have become for many on both sides inextricable from commitment to liberal values or institutions themselves, the package of views has assumed “classical” status within contemporary political philosophy (just as Rawls’ books constitute a “classical” work in liberal theory), and hence are rightly described as a kind of “classical liberalism” relative to political philosophy today. Those allied

Introduction to Beyond Classical Liberalism

3

to this way of tying anti-perfectionism with liberal political theory, alongside Rawls, argued that conceptions of the good can play no role in the pub­ lic justification of coercive state action due to a non-eliminable reasonable pluralism about conceptions of the good.6 Given this reasonable pluralism, considerations which rely on premises about the good life can play no role in public justification because such considerations are not accessible as reasons to all reasonable members of the public. The use of such premises would result in unsolvable reasonable disagreements and state action which were justified with such arguments could not count as legitimate because members of the public could object that the interference with their liberty which goes along with the relevant state action is not publicly justified to them. Their moral status as free and equal citizens would be violated and they would not be treated with the respect owed to them because their liberty was restricted with considerations which are not accessible as reasons for them. Right from the start, the anti-perfectionist character of that liberalism was the target of a series of objections from critics such as Michael Sandel, Alas­ dair MacIntyre, Charles Taylor, or Michael Walzer which have been lumped together under the label ‘communitarians.’7 These authors were united by their conviction that a liberalism without perfectionism is seriously flawed, unsatisfactory, and that a completely anti-perfectionist liberalism cannot even be formulated in a coherent way. In a nutshell, perfectionist critics claimed that Rawlsian-esque liberalism is just another kind of perfectionism. Characteristic of it is simply its distinctive liberal conception of the good life with its emphasis on negative freedom, autonomy, and individual rights, its dismissal of virtues, neglect of character formation, lacking awareness of the importance of communities, and so on. It was argued that contemporary antiperfectionist liberals disguise this fact with appeal to values such as respect or tolerance and attempt to impose their controversial liberal conception of the good life without the possibility to challenge it, in the name of “neutrality.” However, what has not been sufficiently recognized in the unfolding and still ongoing debate about liberalism’s relation to the good is that two forms of perfectionist critique of classical liberalism must be distinguished. Illib­ eral perfectionists such as MacIntyre and, more recently, Patrick Deneen and Adrian Vermeule agree with Rawlsian liberals that liberalism cannot be reconciled with perfectionism for principled reasons.8 They only draw the opposite inference: if liberalism cannot accommodate perfectionism, it is not perfectionism but liberalism which must be abandoned. Alternative streams of thought are represented in our book which chal­ lenge this purported need to choose between perfectionism and liberal values/ institutions. And not every perfectionist critique of anti-perfectionist liberal­ ism and its doctrine of neutrality concerning the good is illiberal in nature. For instance, over the last decades, authors such as Joseph Raz, George Sher, Alexandra Couto, Christoph Henning, Kevin Vallier, and some represented in this book (Steven Wall and Patrick Zoll) have challenged the premise that

4

James Dominic Rooney and Patrick Zoll

liberalism is irreconcilable with perfectionism and argued for different ver­ sions of a liberal perfectionism or perfectionist liberalism.9 According to per­ fectionist liberals, it is possible to go “beyond” more recent deviations in liberalism without jeopardizing liberal values such as liberty, equality, and respect, or abandoning liberal ideas and institutions such as the protection of individual rights, the rule of law, democratic elections, or the separation of powers. These perfectionist liberals also do not replicate the views of classi­ cal liberals such as Mill, but are instead pioneering new paths for those still committed by the liberal tradition to take. Nevertheless, some of the authors go beyond liberalism in ways that leave even classical liberal theory behind. Those represented in this book include more than perfectionist liberals, and instead represent other traditions, such as republicanism (Pettit and Muñoz), or classical Greek political thought (Lewis), or Confucianism (Mang and Sim), or natural law theories (Crowe), or those who do not approach the issues through these political theoretical lenses at all (Haybron). We will not attempt to classify the theoretical schools to which each author belongs, since many overlap among these categories, and merely highlight that the chapters collected in this book intend to contribute to this ongoing project to go “beyond” liberalism without thereby abandoning commitment to liberal values or institutions. They are motivated by the conviction that a defense of such values/institutions will be able to meet the many internal and external anti-liberal challenges which threaten the very persistence of liberal and democratic states around the world only if it draws on the resources provided by perfectionist traditions. Freedom requires the good for its effec­ tive defense. Summary of structure and chapters This book consists of four parts. Part I contains chapters which relate con­ cerns for liberal values or institutions with classical themes in perfectionist politics. These themes concern freedom, neutrality, the common good, and the tension between individual and community, with corresponding parallel tensions between nation-state and wider international community. Philip Petitt contrasts classical liberalism’s conception of freedom as non­ interference with the republican conception of freedom as the absence of domination. The republican conception of freedom points to a more substan­ tive ideal than that of a laissez-faire society: freedom requires a state which protects and empowers its citizens under the law to a level that secures a republican version of social justice. However, a challenge for the political implementation of a republican ideal of freedom is that it may enable public domination by those in office. To guard against this, Pettit advances a dis­ tinctively republican conception of democracy whose goal it is to generate a range of constitutional demands by which the discretion of those in power is reduced and by which they are forced to operate on terms laid down by their people.

Introduction to Beyond Classical Liberalism

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Two chapters of this part go beyond certain established boundaries of the debate between contemporary liberals affected by the Rawlsian turn and their perfectionist critics. Steven Wall questions the assumption that the divide between classical liberalism and perfectionism is as sharp or deep as it is widely believed to be. It is usually taken for granted in the debate that classical liberals accept state neutrality—and consequently embrace the view that it is illegitimate for the state to take sides between rival conceptions of the good life—and that perfectionists reject state neutrality—and consequently hold that it is permissible, and may be a requirement, for the state to support or promote some conceptions of the good life over others. Wall challenges this belief by presenting a perfectionist case for state neutrality with respect to competing conceptions of the good within certain spheres of social life. In his view, state neutrality is not a global property of state action, but a property that applies to some spheres of state action and not others. However, the character and specification of the relevant neutrality requirements operative in these dif­ ferent spheres of social life rest on substantive, and no doubt controversial, judgments concerning the goods of human life. Mark D. Retter transcends the usual boundaries of the debate by expand­ ing it to issues that go beyond the nation-state. According to Retter, with its methodological individualism and the privileged, authoritative status attrib­ uted to state sovereignty, the liberal tradition cannot provide an adequate justification for the international rule of law and international institutions. Classical liberalism’s methodological individualism frustrates an adequate articulation of the legitimacy and limits of political authority. Retter argues that the presumption that such authority is exercised through an artificial reason of state renders international relations a function of state prerogative. In the international realm, liberalism has a difficult time proposing a compel­ ling justification for individual states to accede to any substantive rules-based order, since the international order is increasingly and vociferously rejected as the imposition of hegemonic or parochial conceptions of the good/just upon sovereign nation-states, sometimes against what they take to be in their best interest—as was exemplified in Russia’s justification for its invasion of Ukraine. The result is an unstable dialectic between a liberal international­ ism, advancing an individualistic form of human rights at the expense of solidarity through the nation-state, and a collectivist and state-based nation­ alism, asserting the privileges of sovereignty for those wielding state power. Retter seeks to reclaim and extend intellectual resources from the perfection­ ist philosophical tradition drawing on the work of Alasdair MacIntyre. His practice-based account of politics aims to explain the legitimacy of political and legal authority by reference to human sociability and the common good, before extending that explanation into the transnational domain. Stephen Hall moves beyond liberalism in regard to conceptualizing the structure and justification of legal institutions. He engages with the so-called ‘will theory’ of contractual obligation which originated in the Victorian era

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in the nineteenth-century United Kingdom and which remains influential today. According to this theory, the explanation of contractual obligation is that it is the product entirely of the human will. Hall maintains that the will theory has its merits but fails to fully explain contractual obligation. Because humans are social beings, we cannot achieve our highest good of full human flourishing without cooperative action. It is this necessity of cooperative action in support of reasonable goals that is the true source of all obligation. Promise-making is a practice that can secure such action. Once reliance has been placed on a promise, the promisor is obliged to honor it. Contract law strengthens the trust that certain promises will be honored where trust might otherwise be weak, thereby serving the common good. Therefore, Hall con­ cludes, contractual obligation should be understood as being the product of will directed by practical reason toward the attainment of reasonable goals, in circumstances where the common good is served by legal enforcement. The contributions in Part II aim at contemporary issues arising for public reason or public justification, including whether liberal societies are fair in their treatment of the unreasonable citizen, whether and how perfectionists can legitimately appeal to theories of public reason, and the way in which perfectionist intuitions about political life affect our concepts of public justification. Thomas M. Besch opens the part by raising concerns about the dominant public reason liberal view of public justification: whether liberals violate their own principles in excluding unreasonable citizens from public justification. Besch argues that, on the one hand, public reason liberalism—liberalism which ties legitimacy to public justification—with its commitment to equal respect requires that conceptions of justice be publicly justifiable to relevant people in a manner that allocates to each an equal say. On the other hand, liberal public justification also excludes because it accords no say, or a lesser say, to people it deems unreasonable. Thus, a decisive question is whether that kind of liberal public justification be aligned with the equal respect that allegedly grounds it, if the latter calls for discursive equality? Besch suggests that political liberalism’s commitment to equal respect can cohere with the standing of the unreasonable in public justification if that standing is not impermissibly unequal in discursive purchase. He considers one candidate view of what is permissible: purchase inequality is permissible provided rel­ evant people have standing of enough purchase to be able to avoid what is bad. Yet Besch proposes, in the end, that these considerations merely draw out further important questions about such inequalities. Public reason lib­ eralism still has difficulties concerning the way in which public justification needs to be authoritative to those who are supposed to accept it, when those people are not merely idealized reasoners but the actual (sometimes unrea­ sonable) members of the community. A current debate between advocates of consensus and convergence accounts of public reason liberalism exemplifies concerns to widen the scope

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of public justification, and the next two chapters attempt to contribute to this ongoing controversy within public reason liberalism and indirectly address some of the tensions which Besch identifies in the philosophical landscape. Patrick Zoll argues that there is a compelling reason to prefer a conver­ gence account of public reason’s structure over a consensus account. Only the former permits to reconcile a public reason liberalism with political per­ fectionism. According to Zoll, the former should be reconcilable with the latter because an anti-perfectionist public reason liberalism imposes severe restrictions on the scope of what liberal states can legitimately do which in turn deprive them of important means to ward of illiberal threats to their well-functioning or even their existence. Thus, what speaks in favor of a con­ vergence account of public reason’s structure is that it allows constructing a perfectionist public reason liberalism which is far better suited to deal with anti-liberal and anti-democratic challenges than an anti-perfectionist public reason liberalism. James Dominic Rooney shows that consensus accounts of public reason liberalism have serious difficulty justifying fair educational policies and pre­ serving cultural goods. Consensus approaches can resolve some controversies about teaching values in the educational system, such as curriculum choice. But many acrimonious conflicts concern matters that such approaches have difficulty in resolving fairly, such as the preservation/promotion of cultural patrimony (languages, architecture, art, church buildings) or education pol­ icy that might significantly affect the development of children. Some have appealed to these difficulties as illustrating that liberal societies undermine those features within civil society that sustain public reasoning. Rooney con­ curs that consensus approaches cannot fairly resolve competing claims about these kinds of disputes. Yet, convergence accounts of public reason, which allow individuals to draw on their own comprehensive doctrines in limited ways, can remedy these weaknesses in the mainline public reason tradition and can justify a pluralist state advancing valuable community goods. He shows that John Henry Newman’s advocacy of liberal arts education finds resonance in other cultures, notably among Confucians, illustrating that there can be convergence around the fact that educational policies or cul­ tural goods are valuable, despite deep substantive disagreements about what makes such things valuable. The purported defects of liberal societies only result from an overly restrictive vision of public justification, one which can be jettisoned without undermining the ideal of public justification itself. Franz Mang makes a contribution to a debate within perfectionism. Per­ fectionists are united by the conviction that the state may, or should, promote valuable conceptions of the good life and discourage conceptions that are bad or worthless. However, Mang draws attention to the fact that two types of perfectionist theory must be distinguished: comprehensive perfectionism and moderate perfectionism. Comprehensive perfectionism claims that per­ fectionism should be grounded in some comprehensive moral doctrine, while

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moderate perfectionism claims that perfectionism does not have to be based upon any comprehensive moral doctrine. Moderate perfectionism also con­ tends that in justifying the use of political power, citizens and state officials may appeal to judgments about the good life that are piecemeal, convincing, widely accepted, and not highly controversial. Mang provides some reasons for favoring moderate perfectionism and defends it against criticisms, clarify­ ing the nature and limits of moderate perfectionism through a discussion of Joseph Chan’s Confucian perfectionism. Part III of this book collects chapters which aim to defend or outline vari­ ous moral duties we might have toward other persons that underlie the lib­ eral institutions or notions of ‘rights’: functioning across the contemporary political landscape, but doing so outside the dominant frameworks. The con­ tributions thus address worries that perfectionism is necessarily paternalistic or anti-pluralistic, or that it undermines core liberal values such as tolerance or respect. Paul Billingham deals with an important subset of perfectionist reasons, namely, religious reasons. Liberalism with its emphasis on public justifica­ tion seems to demand that any arguments used within political deliberation should be open to critical scrutiny, that is, be advanced in a fallibilistic spirit. But can religious citizens comply with this requirement of fallibilism when offering religious political arguments? We might think not, given that such arguments often appeal to what religious citizens see as authoritative sources of absolute truth. Billingham argues in his contribution that, despite this fact, religious citizens can comply with the requirement of fallibilism even if they are unwilling to be fallibilistic about their core religious convictions, because the requirement should be understood as permitting this. In resolving this worry, Billingham argues that religious beliefs may be advanced in a way that makes them a constructive and fruitful contribution to deliberation. Indeed, he suggests that accommodating religious reasons can positively affect politi­ cal discussions concerning what policies will promote justice and the com­ mon good within a community of freedom. Natalie Stoljar deals with two basic values of the liberal tradition in politi­ cal philosophy: equality and autonomy. Stoljar, as well as others, has argued that these values are relational in nature and consequently defended relational approaches to equality—relational egalitarianism—and autonomy. A  char­ acteristic of such relational accounts is the claim that certain forms of unjust social hierarchy (particularly oppression) are incompatible with equality and autonomy. Thus, it seems that they introduce substantive moral commit­ ments into liberalism itself. According to Stoljar, an important objection to relational approaches is that, in importing substantive moral commitments, they are problematically perfectionist: they constitute disrespectful treatment of people holding conceptions of the good that are incompatible with the substantive morality implicit in relational approaches. With her contribution, Stoljar unpacks the challenge and argues that, even if relational theories are

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committed to perfectionism, this is not morally problematic. The perfection­ ism implicit in relational approaches is compatible with a moral requirement of respect for persons. Andrew R. Murphy challenges a portrayal of toleration—a value central to the liberal tradition—as a strictly negative liberty, that is, as the absence of constraint. In connection with this characterization, toleration has been attacked as unduly minimal, compared to more robust and affirmative terms like respect, recognition, and equality. Furthermore, it has been argued that emphasis on toleration fosters a depoliticizing discourse that ignores the presence of vast power differentials between social groups, as well as ignoring the place of socioeconomic inequalities. In response to this critique, Murphy offers a brief overview of the history of toleration in the liberal tra­ dition. Toleration was at its inception a negative liberty concerned primarily with religious differences. However, toleration evolved to include positive elements such as liberties of speech, press, and assembly. Murphy concludes that, on the one hand, the tolerationist legacy is not as unsavory as its detrac­ tors maintain—it retains the possibility of addressing concerns about power differentials and positive liberties. On the other hand, toleration is not a panacea for the many types of difference that animate contemporary social and political tensions. Without overstating the prospects of toleration for progressive politics, Murphy points out that it lends itself to a particular type of issues, namely, those related to circling conscientious belief and practice. Jonathan Crowe argues that natural law theory offers a straightforward and compelling way of deriving human rights from intrinsic goods. Crowe concedes that human rights are not a basic concept in the natural law out­ look. Rights are subsidiary to the more fundamental notion of intrinsic human goods. Nevertheless, goods generate reasons for action, which in turn produce duties toward others. These duties then correlate to rights. Crowe’s contribution elaborates and defends a specific version of the natural law argument for human rights which makes appeal to such intrinsic goods. He then explores some advantages of the natural law approach to human rights, showing how it defuses criticisms of rights discourse advanced from both within and outside the natural law tradition. According to Crowe, the prior­ ity of goods over duties, and duties over rights, in the natural law outlook offers an antidote to the individualistic and positional tendencies of rights claims in contemporary politics: instead, when given their appropriate place in political thought, rights claims need not obscure or override the primary role of the common good in shaping political obligations. The contributions of Part IV aim to explore various aspects of pluralism from within influential religious or philosophical traditions, and to apply insights from those traditions to issues in contemporary politics. The chap­ ters aim to go beyond the usual geographical and historical boundaries within which classical liberalism is often discussed and challenged by perfectionist intuitions.

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Daniel Haybron moves us from perfectionism as such to matters of well­ being in public policy. He takes up a notorious problem facing perfection­ ism and any well-being policy: the risk of paternalistically imposing some uniform conception of well-being on a diverse public characterized by deep cultural differences. Haybron maintains that a policy may in a sense promote substantive views of the good, but must take individuals’ own values as the standard for assessing benefits and harms—whether or not an objective the­ ory of well-being is correct. From that starting point he argues that to a great extent, the aims of well-being policy can be accomplished by focusing on a modest set of consensus hallmarks of well-being such as happiness, health, relationship, and rewarding work. According to Haybron, governments can promote well-being without endorsing a particular conception of welfare, and without purporting to sum up citizen’s well-being in any comprehensive metric. V. Bradley Lewis’s contribution considers Aristotle’s critical engagement with classical Greek democracy as a resource for thinking about the ways that non-liberal ideas may support and improve liberal democratic practice. V. Bradley Lewis proposes that self-government, active citizenship, and mod­ eration are the kinds of Aristotelian ideas that may help, and that Aristo­ tle’s critical evaluation of democracy is more complex and less hostile than often thought. He looks carefully at the basic conceptual structure of Aris­ totle’s political science by reference to his closely interrelated notions of the city, the regime, and citizenship. Lewis examines Aristotle’s characterization of democracy and his most important criticisms of it as a political regime. Finally, he considers complexities of Aristotle’s view that stem from other aspects of his own political theory and actual Greek political practice as described by modern students of Greek democracy. The Aristotelian tradi­ tion, he argues, remains relevant to our modern circumstances as providing the classical inspiration for the basic values that underlie contemporary lib­ eral societies, such as self-government, democratic citizenship, and a need for principled limits on governmental authority. Vincent Phillip Muñoz shifts our attention from antiquity and Europe to the establishment of the United States. He explores the relationship between freedom and the good within the political philosophical milieu at the Ameri­ can founding. He contends that the American Founding Fathers and the con­ stitutionalism they bequeathed to us are neither indifferent toward the good nor neutral toward competing conceptions of the good. Rather, the founders conceived of political liberty, including protection for the inalienable natural right of religious liberty, as a demand of justice. They held, accordingly, that the security of natural rights “endowed by our Creator” is the foundation of the political common good properly understood. May Sim proposes that Confucian ethics is relevant to contemporary debates on individual autonomy and liberalism. Some authors have argued that Confucianism can support these values with certain modifications, while

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others hold that Confucianism already contains the necessary resources for liberal values and human rights. By analyzing these diverse perspectives, Sim aims to provide a nuanced understanding of the degree to which classical Confucianism supports liberal values. She compares the views of Confucius and Mencius on choice to those of Aristotle, aiming to shed light on the degree of freedom of choice that each endorses. Sim concludes that, due to Aristotle and these early Confucians having a common perspective, a virtueoriented ethics, comparing them reveals that both contain relevant resources for understanding and supporting a system of political liberties which facili­ tate the pursuit of ultimate goods. Thus, Sim argues that Confucianism con­ tains resources that support individual freedom and human rights without needing to be modified to fit contemporary values. A concluding word We do not aim to propose that all of these approaches represent a unified political perspective—indeed, some of our authors are perfectionists, whereas others have a more liberal politics—but that they form a broadly coherent defense of the way in which liberal values and institutions remain good for human beings or represent our moral obligations to one another. While dif­ ferent authors appeal to different traditions to make sense of these goods and obligations, there is a profound convergence even among these varied per­ spectives.10 What we hope to thereby prompt is a deeper engagement with the values at the core of our shared traditions. Undercutting the motivations for recent trends toward authoritarianism or populism lies in showing the way that liberal values or institutions are not a threat to the flourishing of a vibrant civil society but rather its ally. The weaknesses and flaws of the liberal tradi­ tion which we have inherited should not blind us to its many achievements and future possibilities to secure a life of valuable liberty for those who come after us. The chapters in this book support that proposition while simultane­ ously pointing beyond the limits of that tradition to the way in which we might develop those insights in light of other traditions, cultures, and more recent problems. What we have learned over the past centuries can help pro­ vide us with a better way of living within those modern liberal regimes that aim to provide robust self-governance which secures the common good. Notes 1 Patrick J. Deneen, Why Liberalism Failed (New Haven, CT: Yale University Press, 2018). 2 Rawls most important works in this regard include John Rawls, “Justice as Fair­ ness: Political not Metaphysical,” Philosophy and Public Affairs 14, no. 3 (1985); John Rawls, Political Liberalism, 2nd ed. (New York: Columbia University Press, 2005); John Rawls, A Theory of Justice, Rev. ed. (Oxford: Oxford University Press, 1999).

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3 Cf. David O. Brink, Perfectionism and the Common Good: Themes in the Phi­ losophy of T.H. Green (Oxford: Clarendon Press, 2003); David O. Brink, Mill’s Progressive Principles (Oxford: Oxford University Press, 2013); Christoph Hen­ ning, Freiheit, Gleichheit, Entfaltung: Die politische Philosophie des Perfektionis­ mus (Frankfurt and New York: Campus Verlag, 2015). 4 However, Gerald Gaus criticized that Rawl and other proponents of classical lib­ eralism erroneously believed that they could avoid contentious epistemological issues, and that they therefore failed to reflect on and to defend sufficiently the conceptions of justification or public justification presupposed by their liberalism, cf. Gerald F. Gaus, Justificatory Liberalism: An Essay on Epistemology and Politi­ cal Theory (Oxford: Oxford University Press, 1996). 5 See, for example, Bruce A. Ackerman, Social Justice in the Liberal State (New Haven, CT: Yale University Press, 1980); Brian Barry, Justice as Impartial­ ity (Oxford: Clarendon Press, 1995); Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985); Charles E. Larmore, Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987); Steven Lecce, Against Perfectionism: Defending Liberal Neutrality (Toronto: University of Toronto Press, 2008); Thomas Nagel, Equality and Partiality (Oxford: Oxford University Press, 1991); Jonathan Quong, Liberalism without Perfection (Oxford: Oxford University Press, 2011). For support of the claim that liberalism’s com­ mitment to neutrality is a contingent feature of liberalism and a relatively new development within the liberal tradition, see also Brink, Mill’s Progressive Prin­ ciples, 255–259; Thomas Hurka, “Indirect Perfectionism: Kymlicka on Liberal Neutrality,” The Journal of Political Philosophy 3, no. 1 (1995): 36–37. 6 In what follows, the terms ‘conceptions of the good’ and ‘conceptions of the good life’ are used interchangeably. 7 See, for example, Alasdair MacIntyre, After Virtue: A  Study in Moral Theory, 2nd ed. (London: Duckworth, 1982); Alasdair MacIntyre, Whose Justice? Which Rationality?, 3rd ed. (Notre Dame, IN: Notre Dame Press, 2003); Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); Charles Taylor, Sources of the Self: The Making of the Modern Iden­ tity (Cambridge: Cambridge University Press, 1989); Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983). For a good overview of the communitarian critique of liberalism, see Stephen Mulhall and Adam Swift, Liberals and Communitarians, 2nd ed. (Oxford: Blackwell Pub­ lishing, 1996). 8 See, for example, Adrian Vermeule, Common Good Constitutionalism: Recover­ ing the Classical Legal Tradition (Cambridge: Polity Press, 2022). 9 See, for example, Alexandra Couto, Liberal Perfectionism: The Reasons that Goodness Gives (Berlin: De Gruyter, 2014); Henning, Freiheit, Gleichheit, Ent­ faltung; Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986); George Sher, Beyond Neutrality: Perfectionism and Politics (Cambridge: Cambridge University Press, 1997); Kevin Vallier, Liberal Politics and Public Faith: Beyond Separation (New York: Routledge, 2014); Steven Wall, Liberalism, Perfectionism and Restraint (Cambridge: Cambridge University Press, 1998); Pat­ rick Zoll, Perfektionistischer Liberalismus: Warum Neutralität ein falsches Ideal in der Politikbegründung ist (Freiburg im Breisgau: Alber Verlag, 2016). In what follows, the terms ‘liberal perfectionism’ and ‘perfectionist liberalism’ are used interchangeably. 10 Indeed, we had hoped to represent further traditions in the project, but it was bad fortune that sadly led to us being unable to include other perspectives that would have been desirable, such as Islam, Judaism, Buddhism, etc.

Part I

Freedom and the good of liberal institutions Contributions in this part aim to relate, in a general way, concerns for liberal institutions with classical themes in perfectionist politics, such as freedom, the common good, and the tension between individual and community.

DOI: 10.4324/9781032702766-2

1

Republican freedom, social justice, and democracy Philip Pettit

Introduction The liberal idea of freedom in a choice equates it with non-interference. That should not be taken to mean the absence of interference with the agent’s preferred option in the choice—this really equates freedom with non­ frustration—but the absence of interference with any option in the choice. That is the way freedom in a choice is cast in the liberal tradition of the past 200 or 300 years and it is formulated almost canonically in Isaiah Berlin’s (1958) Two Concepts of Liberty.1 Interference is itself sometimes taken to mean just the preventive removal of an option from the choice but, despite a recent movement favoring that construal, it is more standardly taken, for example, by Berlin, to mean any form of intervention that reduces the agent’s control in the exercise of choice.2 I shall take interference here to include not just the removal of an option, but the replacement of the option that is exemplified by attaching a penalty to it, as well as the misrepresentation of the option involved in deceptively deny­ ing the agent information about it or in manipulatively denying them a full understanding. In the domain of social or political freedom or liberty—I take the terms as synonyms—the established liberal view takes freedom to be a property of choices rather than persons and to require merely the absence of interference by another in an agent’s choices. Neoliberalism, the contemporary version of classical liberalism, can sometimes insist on people each enjoying a minimal set of natural rights to non-interference, as in Robert Nozick’s3 work, but it is more commonly taken to support the maximization of freedom as non­ interference in a society: to require that overall—even at a cost to equality of freedom—people enjoy as much freedom in that sense as feasible.4 Whether on a rights-based or maximization reading, freedom as non­ interference fails in itself to support a plausible ideal of social justice or to make a case for democratic government, and in this chapter I  argue that, in sharp contrast, the rival republican conception of freedom scores well on both counts.5 The chapter is in four sections. In the first, I  present the

DOI: 10.4324/9781032702766-3

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republican ideal of freedom and in the second, I sketch its history, includ­ ing the story of how it was replaced by its liberal rival in the late eighteenth century. In the third, I  discuss its support for a distinctive ideal of social justice, and in the fourth, I explain how in the same way it supports a distinc­ tive ideal of democracy.6 A brief conclusion underlines the contrast with the liberal approach. 1 The republican conception of freedom The republican or neo-republican approach to freedom is distinct from the liberal in three salient ways. First, it takes freedom in a choice to require, not just that the agent happens not to suffer the interference of another, but that they be suitably secure against such interference: against the removal, replacement, or misrepresentation of any options. Second, it uses that understanding of freedom in a choice to define an ideal of freedom in a per­ son. And third, it prioritizes the freedom of persons in that sense, using the ideal to determine what is required for a society to constitute a “free state.” The best argument, in my view, for thinking of freedom in the republican way is precisely that it can be used to ground such an ideal of the good society. 1.1 Freedom in choice

The republican conception of freedom in choice requires the agent to be able to make their decision according to their own wishes, regardless of what others might wish that they should choose. That means that no one else, and no corporate body, can be in a position, should they wish, to interfere in the choice. To that extent, the agent should not relate to anyone else as to a dominus or master; they should not live in a relationship of dominatio, as the Romans called the relationship between a slave and their owner. To that extent, as we may put it, the agent should not be dominated by another or subjected to them. They should enjoy freedom as non-domination, not just freedom as non-interference. According to the liberal ideal, all and only interference makes a choice unfree. According to the republican, however, the all-claim and the onlyclaim are both false. The only-claim is false, because no one will be secure against interference to the extent that another could interfere in the choice, if their will inclined them to do so. Suppose a person decides according to their own will in a certain choice but that another could have interfered had they been so inclined. In that case, it is only because the other was good-willed or benevolent that they were able to choose as they did. It is the other’s will that was ultimately in charge; they chose as they did only because the other allowed or permitted them to do so. Thus, it is not only interference that can make a choice unfree; the domination of another, even if it is not exercised in interference, can have this effect as well.

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The all-claim of the liberal approach is that every sort of interference makes a choice unfree. This too is false, on the republican view of things. Suppose that the patients in a long-term care-center depend on the manager to determine a range of important elements in their lives—when meals are served, when they may have visitors, when they have outings—so that they are clearly denied freedom as non-interference on those fronts. They will also be denied freedom as domination to the extent that the manager is able to alter those arrangements at will. But suppose it is the case, perhaps under the laws governing care-centers, that the patients are allowed regular meetings and can decide under some egalitarian procedures to reject any of the man­ ager’s arrangements. In that case, the manager will not be a master and the patients will enjoy freedom as non-domination in relevant choices. One comment before moving on. While some instances of domination may be contingent on a temporary opportunity or superiority that the domi­ nator enjoys—say, that which the burglar or mugger may enjoy—others may be grounded robustly in natural or social asymmetries.7 Asymmetries deriv­ ing from infirmity or ill-health may make someone prey to the domination of others, as may those deriving from poverty and other forms of disadvantage, or sexist or racist norms, or arrangements that give bargaining advantages to employers over workers, corporations over communities, financial institu­ tions over their debtors. Such impersonal factors, norms or arrangements exercise a sort of structural domination over the individuals they disadvan­ tage; they do this insofar as they facilitate or program for domination by other agents, individual or corporate. 1.2 Freedom in a person

On the republican conception of freedom, an agent will enjoy freedom in a choice to the extent that no one dominates them in that choice: to the extent that no one is able to interfere at will in their exercise of the choice. But when will someone count as a free person on this approach? In order to be a free person, they will have to be as free as others in their society; freedom in this mode is inherently tied up with equality. But when will the people in a society count equally as free persons? Two conditions are required: 1. They will each have to enjoy freedom as non-domination in an adequate, equal range of choices—a set of basic liberties—under a system that ade­ quately and equally secures each against others. 2. That system will have to guard each against such personal domination without introducing public: it must survive and operate independently of the will of any distinct agent, individual or corporate. As we shall see in Sections  3 and 4, the first condition underlies the neo­ republican case for a suitable ideal of social justice, the second underlies the

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case for a suitable ideal of democracy; I do not address the case it can make for an ideal of international relations.8 But before discussing those condi­ tions, it will be useful to look briefly at the history of the republican concep­ tion of freedom. 2 A short history of freedom The republican view of freedom goes back to classical Rome, and to the enor­ mously influential writings of figures like Polybius, Cicero, and Livy. On this way of thinking, which was to survive for two millennia, to be free meant to be a free person. And to be a free person in turn meant that you did not have to live under the will of a master, private or public. The law protected you on the private front and the Roman republican system, involving checks and balances on those within government and a remarkable degree of popular power over them—this, under a “mixed constitution,” so called—ensured that that law was not itself publicly dominating. Although it continued to command lip-service, freedom as non-domina­ tion ceased to have much relevance in Rome after the rise of the Empire at the beginning of the common era. But it regained a powerful presence in public life with the rise of the city-states of northern Italy—Venice, Florence, Siena, Perugia, and the like—a thousand years later, in the high Middle Ages. And as those cities became the great centers of learning in the Renaissance period, they bequeathed this neo-Roman way of thinking about freedom to the northern European countries in the 1500s and 1600s. Thus, the legacy of republican thinking shaped the republic of the nobles in C15 Poland and the Dutch republic that was formed after the C16 expul­ sion of the Spanish, and it fueled the English revolution in the 1640s. The republican conception of freedom that inspired these upheavals remained in common currency in the English-speaking world, even after the restoration of Charles II in 1660. Indeed, with the introduction of a broadly constitu­ tional monarchy after 1688, it achieved the status of an orthodox ideal in most strains of political thinking. Freedom in this sense consists in “inde­ pendency upon the will of another,” as Algernon Sidney put it in the 1680s.9 Or, as the idea was formulated in Cato’s Letters, a radical tract of the 1700s, “Liberty is, to live upon one’s own terms; slavery is, to live at the mere mercy of another.”10 The republican conception of freedom as non-domination reached per­ haps the greatest height of its influence about the time of the American war of independence. One of the things that had really upset the American colo­ nists is that in 1766 when the Westminster Parliament had been persuaded to withdraw the tax imposed by the Stamp Act, it went out of its way to claim that, although choosing to exercise indulgence, it enjoyed as “of right” the “full power and authority to make laws and statutes” binding the Americans. This was just to say that it claimed the position of a master, albeit a kindly

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master. And if that claim was admitted then, by the received ideal, the Ameri­ can colonists could not count as free. Despite the existence of literal slaves in the American lands, this led to a general complaint among the colonists, in the words of a 1772 resolution in Boston, that “we are degraded from the rank of Free Subjects to the despicable Condition of Slaves.”11 But if the American revolution was built on the republican idea of free­ dom, opposition to it brought a new idea of freedom into existence. In 1776, John Lind, a pamphleteer writing on behalf of the British government, intro­ duced the new idea.12 Freedom is “nothing more or less than the absence of coercion,” he said, arguing that since “all laws are coercive,” the laws themselves take from people’s liberty, even if they do so in the hope of reduc­ ing the overall level of coercion. And if that is the case, he asked, what is the complaint of the Americans? They are ruled by law, to be sure, but so are those in mainland Britain and so indeed are those in any society whatsoever. Where the earlier view had depicted freedom as the product of a protec­ tive, popularly controlled law, this view makes law into the antonym of free­ dom: a form of coercion, whether of body or will, that reduces the choices available to subjects. This new view was derived by Lind from a young friend, Jeremy Bentham, who had claimed in a letter to have made “a kind of discov­ ery” in recognizing that liberty just requires “the absence of restraint,” and to have made this “the cornerstone of my system.”13 This novel view of freedom was useful for Lind and others in rejecting the republican argument against colonialism, even the supposedly gentle coloni­ alism of Westminster in relation to the American colonists. But it probably survived because it also served other purposes for the classical liberals, so called, who took it from Bentham, while rejecting his broader utilitarian program. It appealed to them for the fact that it provided a way of justify­ ing the new legal and political order that industrialization was calling into existence. In this new order, great numbers of people moved off the land and, with growing industrialization, scrambled for subsistence jobs. Could such work­ ers be free? Not by contemporary republican views, that cast them as “wage slaves,” bequeathing that idea to later socialists. But they could be free accord­ ing to classical liberals, who celebrated what they called freedom of contract: non-interference by others in someone’s decision about who to work for, on what terms, and under what conditions. This celebration overlooked the pressures under which industrial laborers had to make their choices, and the domination—and loss of republican freedom—to which this exposed them. 3 Republican social justice By the republican account, a socially just society must enable its citizens to assume the status of free persons. And in order to do this, it must define and defend their basic liberties.

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3.1 Defining the basic liberties

The society must rely on laws and norms—in effect, a state—to identify the choices that constitute basic liberties, whether it does this in explicit stipu­ lations or on the basis of assumptions written into the structure of the law overall. Laws and norms will ensure, not just that there is some determinacy about what are and are not basic liberties, but also that those liberties are manifest, so that everyone knows how they can act and where they stand. What range of undominated choices ought free persons to be able to enjoy? Plausibly, for starters, they must be able to enjoy the same choices as one another without exposure to domination.14 And, plausibly, those choices ought to be such that anyone can exercise one of them regardless of how many others are exercising it or another liberty, and can do this without undermining the appeal of the choices. Thus, it can’t be open to a free person to take possession of whatever they wish, or to travel on whatever side of the road they wish, since such choices would not be co-exercisable. And it can’t be open to a free person to speak whenever they wish to an assembled audience, since no one would enjoy doing so if others were doing that at the same time. Rules of ownership and rules of the road might serve that purpose in the first case, and an arrange­ ment like Robert’s rules of order the second. 3.2 Defending the basic liberties

But how is the society to safeguard citizens in their enjoyment of those basic liberties? Clearly, it must operate on two fronts. First, it must ensure, so far as possible, that those choices are not blocked by impersonal factors like a lack of health or resources or information; it must try to ensure that they are available as choices in which people can enjoy non-domination. Second, and even more saliently, it must ensure that people are not subject to the control of others in how they choose to make them. It must both resource and pro­ tect their basic liberties. 3.3 Resourcing citizens

What laws might serve to guard citizens against private domination? In order to ensure that they are not hampered by lack of resources from accessing the basic liberties, there must be laws that ensure a basic level of resourcing for all. This might be taken to argue for a universal basic income, as some have argued on republican grounds.15 But it certainly argues for laws that provide security against disadvantages that would restrict people’s abilities to access their basic liberties and might even make domination possible and likely. Thus, the law should provide for the social security of all, since those who are homeless or hungry, or in urgent medical need, or too poor to be represented in court, will be restricted in their ability to enjoy certain basic liberties and

Republican freedom, social justice, and democracy

21

might have to depend on the philanthropic or exploitative offers of others, being thereby exposed to domination. 3.4 Protecting citizens

But apart from resourcing citizens in this way, the laws would also have to protect them against salient forms of interference, giving them a suitable level of non-domination in the exercise of their basic liberties. There are four areas, broadly, in which the law should provide such protection for people against the danger that some of them may be dominated by other individu­ als or by the corporate bodies that individuals form: churches, corporations, associations, and the like. The four types of protection the law should pro­ vide against that danger are general and direct; general and indirect; specific and direct; and specific and indirect. The law will provide a general, direct form of protection of people inso­ far as it criminalizes various offences against basic liberties, for example, regulates activities that may jeopardize the enjoyment of those liberties, and guards against possibilities of discrimination that may undermine it. The law will provide a general, indirect sort of protection insofar as it enables peo­ ple, individually or in class action, to charge others with breaches of tort or contract law that affect their basic liberties. The law will provide a specific, direct form of protection insofar as it gives status rights to those in particu­ larly vulnerable positions vis-à-vis others, for example, as spouses, workers, or consumers. And the law will provide a specific, indirect form of protec­ tion insofar as it gives certain powers of self-protection to such people, say by enabling spouses to seek divorce, workers to unionize, and consumers to bring class actions in defense of their rights. We may sum up the picture in this matrix: Protection:

Direct or

Indirect

General or Specific

Criminal law. . . Family, workplace, consumer law. . .

Tort and contract law. . . Laws allowing divorce, unionization. . .

3.5 The eyeball test

This discussion relies on the basic liberties being broad enough, and the safe­ guarding deep enough, to ensure that citizens will count as free persons. But how to determine when there is enough on this front? The answer is: when people are enabled to pass the eyeball test. According to this test, someone will count as a free person, enjoying a free status adequately and equally with others, just to the extent that they are able to look others in the eye without good reason for fear or deference; or at least

22

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without good reason deriving from an imbalance of interfering power. The test picks up the traditional idea that the free person can stand and walk tall amongst their fellows. While the reference to looking others in the eye may be specific to cultures where that is not treated as impolite or in other ways improper, the possibility of being able to look others in the eye stands in for a possibility of mutual respect that ought to appeal across the species.16 4 Republican democracy So much for the sorts of laws required to protect people against private domi­ nation. But what now of the state that is needed to frame and impose such laws? How are people to be guarded against public domination by their own polity? The state does not dominate its people just in virtue of existing, because the worldwide system that makes the state inescapable is not maintained in existence, as it was not brought into existence, by any agent or agency; it is the unintended consequence of independent actions and adjustments.17 The state will raise a problem of domination, however, if the way it chooses the particular laws it frames and imposes—the way it exercises its power as a state—gives it or the government that runs it dominating power: the sort of power that the manager of the care-center we imagined earlier would have, if he or she had unbounded discretion over what arrangements to impose on patients. How then to guard against such a danger? Plausibly, by containing the exercise of political power, so that the government and the state operate, not according to a discretionary will but on terms that the people as a whole lay down and enforce. The people will not be controlled and dominated publicly to the extent that, while they must accept the state as the source of laws, they can themselves control the state’s decisions about what laws to make and about how to impose them. 4.1 The tough-luck test

The eyeball test provides a benchmark for determining whether relevant laws guard people adequately and equally against personal domination. The tough-luck test, as we may call it, provides a benchmark for determining whether those laws are imposed without public domination. Where the eye­ ball test determines whether decision-taker laws are satisfactory—these are the laws that are imposed on all citizens alike—the tough-luck test would determine the suitability of decision-maker laws: that is, the laws that deter­ mine who are to be the decision-makers and how they are to operate. Whatever decision-taker laws are imposed by the state, they are always going to be unwelcome in one or another sector of the society: this is because people differ in their interests and opinions. Decision-maker laws would pre­ sumably guard against public domination if they ensured that even those

Republican freedom, social justice, and democracy

23

who find a decision-taker law or policy unwelcome, as some always will, need not conclude that it reflects the power of a will that is hostile or indif­ ferent to their interests. The decision-making arrangements in place will give them reason, however defeasible, to think that it may have been tough luck that the decision affected them negatively. What constraints on the power of decision-makers would enable those who are disappointed about a law that the state imposes to view it with­ out a presumption that resentment or indignation is justified? Presumably, laws that force lawmakers to impose laws under a system of popular, equally shared control that deprives them of a discretionary fiat; we may assume that no one can resent having to live on equal terms with others and having to share control with them. If decision-makers were subject to such control, then those opposed to any law would have reason to think that, however disappointing, the law emerged under a system of control that was not rigged against them: a system of control that was adequately responsive to them, and as responsive to them as to any other group in the society. The tough-luck test depicts the project of combating public domination as a realistic but still exciting ideal. It contrasts on the one side with Rousseau’s exciting but unrealistic ideal like the empowerment of a supposedly general or popular will; and on the other side with a realistic but less exciting ideal like that of equalizing political resources and guarding against the subordina­ tion of some individuals to others in the society.18 4.2 A framework of control

Decision-maker laws will guard against public domination, then, and satisfy the tough-luck test, if they are designed to give people an equally shared form of adequate control over the decisions taken by the authorities in the name of the state. But how in practice might decision-maker arrangements do this? Plausibly, by virtue of providing people with a framework that enables them to impose disciplinary, contestatory, and selectional forms of control over those in office. And, more specifically, by providing them in an undominating way with such a framework of control. In order for a framework to be provided in an un-dominating way, it must be capable of amendment by the people themselves, but only under the proviso that no sub-group is thereby enabled to assume power over others. Amendability under that proviso requires that the extension of the citizenry be so fixed that no members—no elite or cultural group—can exclude others or deny them equal power under the framework; all must share equally in that power and do so on a basis that makes the arrangement effectively or even formally unamendable. And amendability under the proviso requires, in addition, that while various other elements in the framework should be amendable, they should only be amendable under constraints—perhaps supermajoritarian constraints—that guard against one group acting to reduce the access of others to control over government.

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How will the framework of control established by decision-maker laws give people disciplinary, contestatory, and selectional control over government? Broadly, by instituting a version of the traditional, mixed constitution.19 4.3 Disciplinary control

The framework will give people disciplinary control over government inso­ far as it introduces a rule of law, a rule of checks and balances, a rule of entrenched rights, and a rule of common reasons akin to something delib­ erative democrats support.20 The rule of common reasons would require the measures taken in making, administering, and adjudicating law—and indeed also, to anticipate, in contesting law—to be justified by reference to consid­ erations that are seen as relevant on all sides; and, where rival candidates score equally well on that score, to be adopted under tie-breaking procedures supported by such considerations. Such measures would all have the effect, if well designed, of limiting the powers of those in office in a fashion that makes officials more susceptible to control by people in a contestatory or selectional manner. Where contestatory and selectional measures would arm the people against their government, as we shall see, these disciplinary measures would disarm the government, reducing its capacity to resist popular control. 4.4 Contestatory control

Moving to contestatory power, the framework of decision-maker laws will give ordinary people contestatory control over government insofar as those laws establish freedom of communication and association and maintain a regime under which people have information about government performance and have access to avenues of challenge in the courts, the media, and the streets. Such arrangements would require an independent media as well as agencies like a bureau of statistics or a budget office and would enable the formation of non-governmental organizations for the marshalling of chal­ lenge and opposition. They might also be enhanced by measures requiring government to consult people on various issues: say, by means of a citizen assembly.21 4.5 Selectional control

The third requirement that decision-maker laws must satisfy if they are to have any hope of enabling popular control of government bears on how agents are selected to serve in government. The more regular arrangement would allow for the popular election of domain-general authorities, legis­ lative and perhaps administrative, and for the appointment under suitable constraints of transparency and accountability of authorities in specified,

Republican freedom, social justice, and democracy

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restricted domains. Domain-specific authorities will include the courts, of course, but also the relatively independent authorities often set up by the legislature and administration. These may be established to ensure the reli­ ability of public data and information, as with the bureau of statistics or budget office, to monitor and review domain-general authorities, and indeed one another, for conformity to financial, legal, and ethical guidelines; and to discharge roles where impartiality and expertise are essential, as in courts, election commissions, and central banks. It is almost certainly best to have domain-specific authorities appointed under constraints of transparency and accountability rather than exposing them to election. In these domains, the demands of the public interest are likely to be uncontested, and suitable constraints would promise to dictate fidelity to those demands. Exposure to election would introduce factional incentives for those in office, such as the desire to please certain supporters or win a particular group’s favor, and they would likely go against the public interest and dilute the control of people as a whole.22 Why prefer the election of domain-general authorities to their appoint­ ment by any other mechanism? Hardly, as some have suggested, because it is likely to identify the best candidates for office; it may do only moderately well, and sometimes very badly, on that front. Elections are important in reminding people of their power and prompting them to see the authorities as ultimately their servants.23 And, perhaps even more crucially, elections commit sincere participants to defending the freedom of information, com­ munication and association on which participation requires them to rely.24 Liberties in these areas need to be recognized, celebrated, and entrenched in any effective democracy; let them be compromised and people are likely to lose much of their control over government, whether of a disciplinary, con­ testatory, or selectional kind. Conclusion The divergence between the republican and liberal conceptions of freedom is wide. As we have seen, the republican ideal explains the need for an intui­ tively just ordering of social life and a broadly democratic mode of politics, indicating the sorts of institutions required on each front. The liberal ideal of freedom, taken on its own, does none of these things. The proposal to maximize the overall enjoyment of freedom as non-inter­ ference directs us to a laissez-faire ideal of society, in which the weak may go to the wall; it is only because of conjoining this notion of freedom with an egalitarian principle that John Rawls can construct an ideal worthy of being called social justice. Moreover, the proposal provides little or no basis on which to argue for an ideal of democracy, since a democracy might do less well than an autocracy in honoring and preserving non-interference within various spheres of private choice. Isaiah Berlin acknowledges this openly,

26

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holding that there is no logical connection between his notion of freedom and democracy: “democracies can, without ceasing to be democratic, suppress freedom, at least as liberals have used the word.”25 The liberal and republican theories of freedom both represent attempts to systematize the ordinary connotations of the word and, on that count, they may do equally well. But the way to judge between rival philosophical theo­ ries on this topic, as on any other, is to ask, which theory best explains the importance that we naturally give it and the use to which we put it in related areas of thought: here, political thought.26 On that criterion, there should be no hesitation about endorsing the neo-republican approach and rejecting the neoliberal; it scores decisively better in directing us to a persuasive image of the good society. Notes 1 I. Berlin, Two Concepts of Liberty (Oxford: Oxford University Press, 1958). 2 I. Carter, A Measure of Freedom (Oxford: Oxford University Press, 1999); and M. H. Kramer, The Quality of Freedom (Oxford: Oxford University Press, 2003). 3 R. Nozick, Anarchy, State, and Utopia (Oxford: Blackwell, 1974). 4 Where neo-liberalism has a right-wing cast, the broadly left-wing liberalism exem­ plified by someone like John Rawls differs in two ways; see J. Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971). It focuses on the importance of equal freedom as non-interference for all in a restricted set of basic liberties and it requires a society, not just to ensure such freedom, but also to meet certain standards of socio-economic equality. 5 There are many contemporary sources of republican thought but I  shall rely mainly on my own work; see P. Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997); P. Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge: Cambridge University Press, 2012); P. Pettit, Just Freedom: A Moral Compass for a Complex World (New York: W. W. Norton  & Co., 2014). Among many other sources, see Q. Skinner, Liberty Before Liberalism (Cambridge: Cambridge University Press, 1998); M. Viroli, Republicanism (New York: Hill and Wang, 2002); C. Laborde, Critical Republicanism: The Hijab Controversy and Political Philoso­ phy (Oxford: Oxford University Press, 2008); and F. Lovett, The Well-Ordered Republic (Oxford: Oxford University Press, 2022). An Oxford Handbook of Republicanism is forthcoming in 2024, edited by Frank Lovett and Mortimer Sellers. 6 The third and fourth sections draw heavily on P. Pettit, “Republican Freedom in Choice, Person and Society,” in Handbook of Republicanism, ed. F. N. Lovett and M. N. S. Sellers (Oxford: Oxford University Press, 2024). 7 D. Gädeke, “Does a Mugger Dominate? Episodic Power and the Structural Dimension of Domination,” Journal of Political Philosophy 28 (2019): 1–23. 8 See P. Pettit, “The Republican Law of Peoples: A Restatement,” in Domination and Global Political Justice: Conceptual, Historical, and Institutional Perspec­ tives, ed. B. Buckinx, J. Trejo-Mathys, and T. Waligore (London: Routledge, 2015), 37–70; and C. Laborde and M. Ronzoni, “What Is a Free State? Republi­ can Internationalism and Globalization,” Political Studies 64 (2016): 279–296. 9 A. Sidney, Discourses Concerning Government (Indianapolis: Liberty Classics, 1990), 17.

Republican freedom, social justice, and democracy

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10 J. Trenchard and T. Gordon, Cato’s Letters, Vol. 2 (New York: Da Capo, 1971), 249–250. 11 J. P. Reid, The Concept of Liberty in the Age of the American Revolution (Chi­ cago, IL: Chicago University Press, 1988), 92. 12 J. Lind, Three Letters to Dr Price (London: T. Payne, 1776). 13 D. C. Long, Bentham on Liberty (Toronto: University of Toronto Press, 1977), 54. 14 In principle, it might be possible to allocate different packages of choices that enabled all parties to pass the test. But it is hard to see how in practice this might be made to work. 15 P. Pettit, “A Republican Right to Basic Income?,” Basic Income Studies 2, no. 2 (2007): Art 10; D. Raventos, Basic Income: The Material Conditions of Freedom (London: Pluto Press, 2007). 16 P. Pettit, “A  Conversive Theory of Respect,” in Respect: Philosophical Essays (Oxford: Oxford University Press, 2021), 29–54. 17 P. Pettit, The State (Princeton, NJ: Princeton University Press, 2023). 18 N. Kolodny, “Rule Over None I: What Justifies Democracy?,” Philosophy and Public Affairs 42 (2014): 195–229. N. Kolodny, “Rule Over None II: Social Equality and the Justification of Democracy,” Philosophy and Public Affairs 42 (2014): 287–336. D. Viehoff, “Democratic Equality and Political Authority,” Phi­ losophy and Public Affairs 42 (2014): 337–375. 19 For fuller discussion of the mixed constitution, and its consistency with the idea of sovereignty, see Pettit, The State, op. cit. 20 J. Cohen, “Deliberation and Democratic Legitimacy,” in The Good Polity, ed. A. Hamlin and P. Pettit (1989), 17–34; J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1995). 21 H. Perse and M. Warren, eds., Designing Deliberative Democracy: The British Columbia Citizens’ Assembly (Cambridge: Cambridge University Press, 2007). 22 On indicative versus responsive representation, see P. Pettit, “Representation, Responsive and Indicative,” Constellations 3 (2010): 426–434. And for an argu­ ment in favor of depoliticizing sentencing policy, insulating it from such incen­ tives, see P. Pettit, “Is Criminal Justice Politically Feasible?,” Buffalo Criminal Law Review, Special Issue ed. By Pablo de Greiff 5, no. 2 (2002): 427–450. 23 E. B. Chapman, Election Day: How We Vote and What It Means for Democracy (Princeton, NJ: Princeton University Press, 2022). 24 J. A. Schumpeter, Capitalism, Socialism and Democracy (Harper Torchbooks) (New York: Harper Torchbooks, 1984). 25 Berlin, “Two Concepts of Liberty,” op. cit., p. 28. 26 P. Pettit, “Analyzing Concepts and Allocating Referents,” in Conceptual Engi­ neering and Conceptual Ethics, ed. A. Burgess, H. Cappelen and D. Plunkett (Oxford: Oxford University Press, 2019), 333–357.

References Berlin, I. (1958). Two Concepts of Liberty. Oxford, Oxford University Press. Carter, I. (1999). A Measure of Freedom. Oxford, Oxford University Press. Chapman, E. B. (2022). Election Day: How We Vote and What It Means for Democ­ racy. Princeton, NJ, Princeton University Press. Cohen, J. (1989). Deliberation and Democratic Legitimacy. In The Good Polity. A. Hamlin and P. Pettit. New York, Blackwell: 17–34.

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Gädeke, D. (2019). “Does a Mugger Dominate? Episodic Power and the Structural Dimension of Domination.” Journal of Political Philosophy 28: 1–23. Guerrero, A. (2014). “Against Elections: The Lottocratic Alternative.” Philosophy and Public Affairs 42: 135–78. Habermas, J. (1995). Between Facts and Norms: Contributions to a Discourse The­ ory of Law and Democracy. Cambridge, MIT Press. Hart, H. L. A. (1973). “Rawls on Liberty and its Priority.” University of Chicago Law Review 40: 534–55. Kolodny, N. (2014a). “Rule over None I: What Justifies Democracy?.” Philosophy and Public Affairs 42: 195–229. ———. (2014b). “Rule over None II: Social Equality and the Justification of Democ­ racy.” Philosophy and Public Affairs 42: 287–336. Kramer, M. H. (2003). The Quality of Freedom. Oxford, Oxford University Press. Laborde, C. (2008). Critical Republicanism: The Hijab Controversity and Political Philosophy. Oxford, Oxford University Press. ——— and M. Ronzoni (2016). “What Is a Free State? Republican Internationalism and Globalization.” Political Studies 64: 279–96. Lind, J. (1776). Three Letters to Dr Price. London, T. Payne. Long, D. C. (1977). Bentham on Liberty. Toronto, University of Toronto Press. Lovett, F. (2022). The Well-ordered Republic. Oxford, Oxford University Press. ——— and M. N. S. Sellers (2024). Oxford Handbook of Republicanism. Oxford, Oxford University Press. Nozick, R. (1974). Anarchy, State, and Utopia. Oxford, Blackwell. Perse, H. and M. Warren, Eds. (2007). Designing Deliberative Democracy: The Brit­ ish Columbia Citizens’ Assembly. Cambridge, Cambridge University Press. Pettit, P. (1997). Republicanism: A  Theory of Freedom and Government. Oxford, Oxford University Press. ———. (2002). “Is Criminal Justice Politically Feasible?.” Buffalo Criminal Law Review, Special Issue ed. by Pablo de Greiff 5(2): 427–50. ———. (2007). “A Republican Right to Basic Income?.” Basic Income Studies 2(2): Article 10. ———. (2010). “Representation, Responsive and Indicative.” Constellations 3: 426–34. ———. (2012). On the People’s Terms: A Republican Theory and Model of Democ­ racy. Cambridge, Cambridge University Press. ———. (2014). Just Freedom: A Moral Compass for a Complex World. New York, W.W. Norton and Co. ———. (2015). The Republican Law of Peoples: A Restatement. In Domination and Global Political Justice: Conceptual, Historical, and Institutional Perspectives. B. Buckinx, J. Trejo-Mathys and T. Waligore. London, Routledge: 37–70. ———. (2019). Analyzing Concepts and Allocating Referents. In Conceptual Engi­ neering and Conceptual Ethics. A. Burgess, H. Cappelen and D. Plunkett. Oxford, Oxford University Press: 333–57. ———. (2021). A Conversive Theory of Respect. In Respect: Philosophical Essays. Oxford, Oxford University Press: 29–54. ———. (2023). The State. Princeton, NJ, Princeton University Press. ———. (2024). Republican Freedom in Choice, Person and Society. In Handbook of Republicanism. F. N. Lovett and M. N. S. Sellers. Oxford, Oxford University Press.

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Raventos, D. (2007). Basic Income: The Material Conditions of Freedom. London, Pluto Press. Rawls, J. (1971). A Theory of Justice. Oxford, Oxford University Press. ———. (1993). Political Liberalism. New York, Columbia University Press. ———. (2001). Justice as Fairness: A Restatement. Cambridge, MA, Harvard Uni­ versity Press. Reid, J. P. (1988). The Concept of Liberty in the Age of the American Revolution. Chicago, IL, Chicago University Press. Rousseau, J. J. (1997). The Social Contract and Other Later Political Writings. Victor Gourevitch. Cambridge, Cambridge University Press. Sandel, M. (1996). Democracy’s Discontent: America in Search of a Public Philoso­ phy. Cambridge, MA, Harvard University Press. Schumpeter, J. A. (1984). Capitalism, Socialism and Democracy (Harper Torchbooks). New York, Harper Torchbooks. Sidney, A. (1990). Discourses Concerning Government. Indianapolis, IN, Liberty Classics. Skinner, Q. (1998). Liberty Before Liberalism. Cambridge, Cambridge University Press. Trenchard, J. and T. Gordon (1971). Cato’s Letters. New York, Da Capo. Van Parijs, P. (2001). A Basic Income for All. In What’s Wrong with a Free Lunch. J. Cohen and J. Rogers. Boston, MA, Beacon Press. Viehoff, D. (2014). “Democratic Equality and Political Authority.” Philosophy and Public Affairs 42: 337–75. Viroli, M. (2002). Republicanism. New York, Hill and Wang.

2

Political perfectionism and spheres of state neutrality Steven Wall

One must determine neutrality of what kind for whom in respect of what aspects of which subjects; and the path one chooses will depend on background beliefs.1

In contemporary political philosophy, it is common to contrast two families of views regarding the proper functions of the modern state. On one side, there are political perfectionists who reject state neutrality and hold that it is permissible, and may be a requirement, for the state to support or promote some conceptions of the good life over others.2 On the other side, there are liberal neutralists who accept state neutrality and hold that it is illegitimate for the state to take sides between rival conceptions of the good life.3 To be sure, the contrast between these two families of views is considerably more nuanced than these broad statements suggest. Political perfectionists will think that it is a bad idea in this or that context for the state to undertake measures designed to promote their favored conceptions of the good life. Such state action in the context in question might threaten political stability, or unduly risk counterproductive effects, for example. These pragmatic con­ siderations are surely important, and they moderate and qualify the perfec­ tionist position. By the same token, liberal neutralists are not committed to a complete and undiscriminating requirement of state neutrality. Conceptions of the good life that direct their adherents to contravene basic requirements of justice should not be extended even-handed treatment under the require­ ment. Further, state action that favors some conceptions of the good over others, but was not designed to do so or justified by the fact that it does so, would not run afoul of the requirement of state neutrality.4 Yet, even taking these subtleties into account, the contrast between the two families of views is widely seen to be one that is sharp and deep. This chapter aims to com­ plicate further the divide between the two camps. It does so by presenting a perfectionist case for state neutrality with respect to competing conceptions of the good within certain spheres of social life. State neutrality, on the view I present here, is not a global property of state action, but a property that applies to some spheres of state action and not others. DOI: 10.4324/9781032702766-4

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1 Neutrality characterized The first order of business is to characterize, in a general and schematic way, the notion of neutrality at issue in this chapter. The Neutrality Requirement will be here defined as a three-place relation: Neutrality Requirement: X is required to be neutral with respect to Y in domain Z The X variable identifies the agent, or agents, who are responsible for, or administer, the neutral treatment in question. The Y variable identifies the items that are afforded neutral treatment under the requirement. X is required to be neutral between, or among, the items in Y. Finally, the Z variable desig­ nates the domain in which the neutrality requirement is taken to apply. A mundane example illustrates the three-place neutrality schema. An umpire, X, is required to be neutral in his treatment of the members of the opposing teams, Y, in the domain of the rule-constituted game of baseball, Z. Note that the umpire need not be neutral in his treatment of those who fall outside of Y. He can favor his child over a stranger’s child in some other con­ text without violating the neutrality requirement that applies to him. Indeed, his child might be a member of Y, but so long as his favoritism toward his child fell outside the domain of baseball, he would not violate the neutrality requirement. These points are obvious enough, but it might be thought that they mis­ lead. The authority exercised by an umpire is limited to one small domain, the game of baseball in which he occupies the role of umpire. But the neutral­ ity requirement, as it has functioned in contemporary political theory, applies to the modern state, and the modern state exercises, or at least claims a right to exercise, comprehensive authority over its members. There is virtually no domain of social life over which the state does not claim jurisdiction to rule, even if there are some domains that it chooses not to regulate. The compre­ hensive character of state authority, and the fact that states claim authority over all their members and not some subset of them, calls into doubt the use­ fulness of our characterization of the neutrality requirement, or so it might be claimed. But, on closer inspection, these facts about modern states do not obviate the usefulness of thinking about the neutrality requirement in terms of the three-variable schema. The reason why is that proponents of state neutrality do not need to claim, and often explicitly do not claim, that the requirement applies to all state action or to all those who are subject to the state’s authority. Consider, to take one influential illustration of this point, John Rawls’s proposal that the requirement of state neutrality apply only to certain fundamental political questions—“matters of basic justice and con­ stitutional essentials”5 in his terminology. Here the domain of the neutrality requirement is limited by type of political issue, fundamental as contrasted with ordinary or non-fundamental, and state actors do not run afoul of the

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requirement if they favor some conceptions of the good over others in the course of their ordinary political activities.6 Rawls’s restriction of neutrality to fundamental political matters is contro­ versial among advocates of state neutrality.7 But whether it is well-considered or not, it neatly illustrates the usefulness of identifying the domain—the Z variable—of the neutrality requirement. Consider next the items to which the neutrality requirement applies, the Y variable. It is standard to construe neutrality as owed to conceptions of the good. But the items included under conceptions of the good can vary, even if there is agreement on what con­ stitutes a conception of the good. For example, some defenders of state neu­ trality hold that the state should be neutral among conceptions of the good that have adherents in the society over which the state exercises authority. Conceptions of the good that attract no adherents in the society would fall outside the Y variable.8 But this position is disputed by others who insist that neutrality should be extended to all conceptions of the good that are consistent with justice, whether or not they have adherents in the society in question.9 Consider finally the X variable. Standardly, neutrality is taken to be a requirement of state actors, not private actors.10 Various private clubs or voluntary associations in principle could be taken to be subject to a neutral­ ity requirement, but this has not been the focus of discussion among political theorists. The state and its actors have occupied center stage.11 State actors include ordinary citizens when they assume an official role, such as voter or juror. It is possible to distinguish different types of state actors, and to argue that the neutrality requirement applies differently to different types of state actors.12 One might hold, for example, that the neutrality requirement applies to judicial and legislative officials, but not to executive actors. More commonly, one might hold that the content of the neutrality requirement varies depending on whether the state actor is exercising judicial or legis­ lative authority. Rawls famously claimed that the US Supreme Court was the “exemplar of public reason,” which requires it to justify its decisions in terms that are neutral with respect to competing conceptions of the good. But Rawls presumably did not think that all state officials should follow the lead of constitutional justices. Indeed, as we have seen, on his view state legislators who pass measures on non-fundamental political matters need not honor the neutrality requirement at all. None of the points pressed here are meant to settle any substantive issues. I  have been trying to illustrate the usefulness of the three-place relation schema. One can accept the schema and hold that state neutrality applies to all state officials with regard to all conceptions of the good with respect to every domain of state authority. This would be a maximal view of state neutrality, and while such a view is certainly possible and one that some may find attractive, it is but one formulation of the requirement. The neutrality schema helps us to appreciate this fact.

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The neutrality schema also illuminates how political perfectionism and state neutrality can be reconciled. To see this, consider an understanding of the requirement of state neutrality that I have defended elsewhere. Restricted state neutrality: If two or more worthwhile conceptions of the good are eligible for those who live in a particular political society, and if these conceptions cannot be ranked by reason as better or worse than one another, then the state, to the extent that it aims to promote the good in this political society, should be neutral between these con­ ceptions in its support of them. This characterization of state neutrality would need to be refined by further specifications of the X, Y, and Z variables, and it would need to be qualified in various ways13; but even in its crude formulation, it highlights the key idea. The perfectionist state should favor valuable conceptions of the good over less valuable or worthless conceptions of the good, but this leaves open how it should treat valuable conceptions of the good that are equally valuable, incommensurably valuable, or on a par.14 Restricted state neutrality, unlike standard understandings of the require­ ment, rests on a background pluralistic account of value. This account of value can help to explain the phenomenon of reasonable disagreement over conceptions of the good, but it is the purported facts about value, and not the disagreement over value, that justify neutral treatment. Political perfection­ ism is non-arbitrary in that it favors some conceptions of the good over oth­ ers on the grounds that the favored conceptions have greater value. However, insofar as various goods and excellences are equally valuable or incommen­ surably valuable, and insofar as these goods and excellences are instantiated differently in rival conceptions of the good, the state may not have a valuebased reason for favoring one over the other. In such cases, the perfectionist state may need to treat the rival conceptions evenhandedly, if is to avoid arbitrary favoritism. The rapprochement between political perfectionism and state neutrality effected by the restricted state neutrality requirement is modest. When­ ever the state has good reason to judge one conception of the good to be superior to another, the restricted neutrality requirement ceases to apply. Contrary to Bentham, pushpin is not as good as poetry, and when the state deliberately favors the latter over the former it does not contravene the restricted neutrality requirement. In what follows, I want to consider per­ fectionist arguments for extending state neutrality beyond the restricted principle to cover cases where the Y variable includes items of unequal value or worth. The arguments I  will consider are all domain-specific, applying to particular spheres of social life in virtue of features distinctive of those spheres.

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2 Individuating spheres Domain-specific formulations of the neutrality requirement must charac­ terize the domains in which it applies. The spheres of social life discussed below are all domains. They include, respectively, the spheres of religion, language, and expression. Plainly, hard questions can be raised about how these spheres are to be defined. One approach to defining spheres is historical and sociological. To under­ stand the sphere of religion in a particular society we must attend to the shared understanding of religious practice of the members of that society and we must track how that shared understanding has taken shape over time in that society. On this approach, the spheres of social life, and the goods impli­ cated in those spheres, are “the inevitable product of historical and cultural particularism.”15 A different approach defines the spheres in terms of the goods or values that they make available to those who participate in them. This approach is best illustrated by example. The domain of religion, and the value of religious practice, is sometimes traced back to a (purportedly) deep and universal concern about the origin of order in the world, and its relation or bearing upon, if any, human efforts to lead valuable lives.16 Ways of life, and the institutions and practices that sustain them, that are oriented toward, or seek to give expression to, that “wondering concern” are then appropriately characterized as religious, on this approach to defining the relevant sphere. Convincing accounts of the spheres in question, in all likelihood, will need to combine elements from both approaches. The value-based approach is needed to explain why the activities and practices of the sphere are being highlighted and taken to merit special concern, whereas the historical/socio­ logical approach is needed to document how engagement with the relevant values, and the practices implicated by them, have taken concrete shape in the societies under consideration. Plainly, much more could be said on this matter, but rather than saying more about how the two approaches might complement each other, or how they might generate tensions and conflicts in demarcating the relevant spheres, as surely they might, it will be useful to advert back to the epigram at the beginning of this chapter. The demarca­ tion of spheres for the purpose of formulating domain-specific requirements of state neutrality will depend on background beliefs. The reasons why we might be moved to single out certain spheres of human activity, and why we might be motivated to urge neutral treatment among the different instantia­ tions of the forms of those activities, will invariably reflect the deeper evalu­ ative commitments that we have. And those deeper evaluative commitments, on the perfectionist approach to state neutrality that I am striving to articu­ late here, are rooted in understandings about the human good and the state’s role in promoting it.

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3 Religion Recall that we are seeking to extend the case for state neutrality beyond that provided by the Restricted Neutrality Principle. Having demarcated a sphere, we next consider what considerations might support neutral treat­ ment among the members of that sphere, even when it is granted that some members have greater value or worth than others. We start with the sphere of religion. One salient respect in which religions differ in value is the extent to which they are true, or, more precisely, based on propositions that are true. But they can be assessed along other dimensions as well. Religions may do better or worse in terms of how well they manifest or give expression to the wondering concern about the origin of order in the world.17 And there are, of course, many other dimensions along which religions might be ranked, such as how well they serve the social needs of their adherents, or support sound ethical views. The factors that determine the ranking is less impor­ tant for our inquiry than the possibility that such rankings—fully reasonable rankings—can be made. Suppose now that a determinate ranking of the different religions in a society were available. And suppose that the state in that society favored the religious sphere over other spheres of social life. Actively and intentionally, it adopted measures that encourage and support religious faith and prac­ tice in its territory, holding that religion, or, more precisely, participation in religious reflection and practice, is an objective human good.18 We can ask two questions about this state action. First, is it permissible for this state to favor religion over other non-religious practices? And, second, insofar as it supports religion, should it strive to be neutral among the different religions that have adherents in the jurisdiction over which it exercises authority, or should it instead apportion its level of support to reflect the rankings of the religions along the relevant dimensions? This second question is our present concern. We want to consider why a state that was committed to supporting religion in general might be justified in ignoring or bracketing the merits of the different religions in administering its support. Two answers can be briefly mentioned. First, it might be thought, and often has been thought, that participation in religious practice is valuable to those who engage in it only if their engagement is freely undertaken.19 Con­ sequently, state efforts to pressure, steer, or nudge people into adopting some religious practices over others will impede rather than further their ability to realize the goods that these practices make available to them. Second, it might be held that membership in a religious group, for those who are genu­ inely religious, is a central and valuable part of their social identity. And, it might be held further, that the state has a duty to treat its citizens as full members of their society in virtue of the fact that such membership is itself an important human good, and that if it favors some religions over others, then it will fail to discharge this duty. It will fail to do so insofar as state action

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that some citizens cannot accept, given the central and valuable aspects of their social identity, makes it impossible for them to view themselves as full members of that society.20 Each answer invites objections. The first answer is vulnerable to the reply that force and coercion, and a fortiori milder forms of pressure, when applied “indirectly” and “at a distance,” can be effective at inducing people to freely accept and come to appreciate the true, or higher ranked, religions.21 To the extent that this is so, the case for state neutrality among religions is dimin­ ished. The second answer is vulnerable to the reply that aspects of one’s social identity, such as religious identification or affiliation, are not fixed, but can be modified in light of reason and evidence. This answer must also explain why religious identification is properly regarded as a central and valuable aspect of social identity, while other aspects of a person’s social identity, such as political affiliation or occupation, are not. Addressing these objections is a formidable task, but it is not necessary to attempt to do so here. The two answers, one appealing to free acceptance of religious faith and the other to the good of full membership in one’s society, are offered as illustrations of how the case for state neutrality in the religious sphere could be defended in a manner that is consistent with the commit­ ments of political perfectionism. To be sure, the answers sketched here will be more or less cogent depending on the background understanding of the good of religion. We should not expect either answer to convince all who think that it is important for the state to promote religion.22 Other lines of argu­ ment also may be available to support state neutrality within the religious sphere. The character of the state neutrality within the religious sphere that is articulated will be shaped by the arguments offered in its support. 4 Language The second sphere to be considered is that of language. Each of us obviously has an important interest in language, and we are advantaged or disadvan­ taged in various ways by the languages that are officially recognized and predominant in the societies in which we live. Modern states include multiple languages within their territorial boundaries. Citizens speak different lan­ guages, and an issue of justice arises when the state favors some languages over others, even in states that view themselves as predominantly monolin­ gual.23 Indeed, since it is nearly impossible for the state to take a full handsoff approach when it comes to language, the issue of justice here is nearly unavoidable. Neutral support and recognition of different languages by the state within its territory is one possible response to this justice issue. Insofar as this response is defensible it is available to political perfectionists. Two preliminary concerns about the possibility of state neutrality in the sphere of language need to be mentioned. The first calls attention to the presuppositions of the discussion of state neutrality undertaken here. We are considering whether a case for state neutrality can be made with respect to

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items that are of unequal value or worth, and it may be objected that lan­ guages simply cannot be ranked in this way. Languages are various and dif­ ferent, not better or worse. It is common, however, to speak of languages degenerating or improving. Linguists sometimes decry or celebrate various changes in the languages that they study, and this talk makes sense only if languages can be assessed in terms of the value that they provide to language users. The second concern adverts to aggregation. With language, the num­ bers surely matter, and languages that are more prevalent and more widely used have a stronger claim to recognition and support than those that are less prevalent and less widely practiced. Further, there are strong reasons for the state to favor a single language, as doing so, among other considerations, is efficient, facilitates political debate and discussion, and supports social mobility among different language users.24 The aggregation concern supports the general claim that linguistic justice, and hence the case for state neutrality with respect to language, is heavily context dependent. Applied to the sphere of language, the neutrality require­ ment, if it is to have a prayer of being plausible, must be confined to cer­ tain well-defined contexts. The Neutrality Schema introduced above can be refined to reflect this point. NR: In contexts C, X is required to be neutral with respect to Y in domain Z Here the variable C denotes the background conditions that must obtain in order for the Neutrality Requirement to apply to the domain at issue. The general thought, applied to language, is that just or fair treatment of different languages, or more precisely the interests of different language users, does not always support state neutrality. In some, perhaps most, contexts, fair treatment requires non-neutral state language policy. However, when certain background conditions obtain, then fair treatment may require the state to aspire to neutrality in this domain. Rather than attempting to specify the requisite background conditions in any detail, we can imagine a context that plausibly meets the conditions, however exactly they are spelled out. Consider then a society, such as Can­ ada or Spain, in which there are territorially distinct units in which different languages enjoy majority status. To simplify matters, let us assume that there are only two languages spoken in this society. In one province, language A is predominant, whereas in the other, language B predominates. Suppose that in this society the two languages are the preferred language of roughly equal numbers of citizens, albeit in one province A is the majority preference and in the other province language B is the majority preference. In this envisioned society, the state could extend neutral treatment to the two languages either by providing equal support to the two languages throughout the society or by granting each province equal rights to favor the majority language in its territory.25 (The issue of which of these strategies would be preferable need

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not detain us here.) Now let us add an additional and certainly controversial assumption. One language, say language A, is a better language than the other along whatever dimensions of better-ness apply to languages.26 Given this assumption, why, it can be asked, should the state extend neutral treat­ ment to the two languages? Why should it not give preference to the better language, assuming that doing so could be effective in bringing the society closer to a monolingual society. An adequate answer must establish that the values served by neutral treat­ ment take precedence over the good of promoting language A over language B in the context in question. As noted above, there are strong reasons for the state to promote a single language, and if A is a better language than B, then there are strong reasons for it to promote A. If the speakers of B were a small minority dispersed throughout the territory of the society being imagined, then these reasons, in all likelihood, would defeat the case for state neutral­ ity. But in the context as we have described it, aggregation concerns are not powerful. And the interests of the speakers of B, given their attachment to their language, may tilt the case in favor of state neutrality. This is not the place to consider the full range of interests that speakers of a language typically have in its preservation. At the least, such interests include those related to self-determination (interests in pursuing options made available to one by one’s language27) and those related to a secure sense of belonging (interests in feeling at home in one’s social world28). The present point is that these interests, and their weight or significance to their bearers, plausibly make it unfair to demand the speakers of B to sim­ ply accommodate to a different language, even if it were in some relevant respects judged to be a better language. Fair treatment of all parties involved in the example plausibly speaks in favor of a policy of neutrality between the two languages. Reflection on this example brings out a key feature of the approach to state neutrality that is being explored in this chapter. To defend state neu­ trality, we should look behind it and engage with the underlying values that purportedly ground it. In some contexts, such as the context stipulated in our simple example involving two languages, the relevant underlying value—fair treatment of speakers of different languages—supports a policy of neutrality; but in other contexts, the same underlying value would support a departure from neutrality. Consider, for instance, a state policy of providing prorated support to the different languages spoken in the society. Under this policy, the majority language receives the greatest level of support, whereas minority languages each receive a level of support that is proportionate to their size.29 When the prorated policy is the fair policy, fair treatment of all language users supports non-neutral state support for different languages.30 Put dif­ ferently, in contexts where the prorated policy, or some other non-neutral language policy, would be the fair policy, the background conditions that make the neutrality requirement applicable do not obtain.

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5 Speech and expression The final sphere of state neutrality to be discussed concerns freedom of speech and expression. Mill observed that “no one pretends that actions should be as free as opinions.”31 In like spirit, the political perfectionist can maintain that the state should be more committed to neutrality with regard to speech than with regard to the conduct of its members.32 After all, it is one thing for the state to favor a worthwhile way of living over a base one, but another for it to favor speech that recommends the worthwhile over the base. Still, the asymmetry between speech and action is notoriously slippery and requires defense. Familiar justificatory arguments on this issue are available to the political perfectionist. The perfectionist state is charged with promoting the good. To do so well, it must not seek to ossify current, and possibly mistaken, understandings of the good. To be progressive and open to improvement, the state must ensure that its policies are subject to critical scrutiny and debate. The best way for it to do so, it can be argued, is for it to adopt a stance of viewpoint neutrality regarding its regulation of expression.33 If the state attempts to distinguish good speech from bad speech, then it is likely to err in favor of currently accepted or popular views, thereby insulating or pro­ tecting current or popular views from appropriate challenge. The best bet is viewpoint neutrality, even if doing requires the state to treat good and bad speech evenhandedly. Some critics of viewpoint neutrality protest that such a policy only is a best bet for progress when certain background conditions have been established. “[F]ree and equal discussion,” they claim, “can fulfill the function attrib­ uted to it only if it is rational expression and development of independent thinking, free from indoctrination, manipulation, extraneous authority.”34 The requisite conditions, the critics allege, have not yet been established in modern liberal democracies, and until these conditions are established, the policy of viewpoint neutrality is a mistake. Better, the critics claim, for the state to adopt a policy that combats the speech and expression that, in the critics’ eyes, constitutes or contributes to indoctrination, manipulation, and extraneous authority. The question of whether the critics are right, partially right or dead wrong in pressing these claims need not be settled here. The neutrality schema, as we have seen with the sphere of language, already adverts to context. Consider: NR: In contexts C, the state is required to be neutral with respect to the viewpoints expressed by its members in the domain of speech and expression. The schema leaves open what background conditions must obtain in order for context C to be secured. The perfectionist defense of viewpoint neutrality

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on the part of the state is compatible with different specifications of the con­ text in question. Both free speech champions and Marcuse-inspired critical theorists can accept NR so understood. One further issue can be mentioned. If the state is to comply with the policy of viewpoint neutrality, must it refrain itself from expressing views? That would be a demanding injunction. States routinely make public service announcements and subsidize educational programs. These announcements and subsidies do not restrict the expression of any viewpoint, but they do favor some viewpoints over others.35 In response, it might be said that the state, or government, is just another speaker, and that, like other individuals and organizations, it has a right to promulgate and provide support for its views. When it does so, no violation of state neutrality need occur. Against this, there is the evident fact that, unlike other organizations, the state has the authority and power to tax others to support the views that it expresses. In effect, the state can require you to support views that you reject, and that makes it different from all other speakers. This issue, which cannot be dealt with adequately here, also points to the need to specify further the Neutrality Requirement. We have been speaking of contexts and domains, but additional discriminations are likely needed. For instance, in the domain of speech and expression, it may be necessary to distinguish restrictions or hinderings, from enablements, on the one hand, or furtherings, on the other. The state may enable or further the expression of some viewpoints, while not restricting or hindering the expression of any viewpoints. For example, the state could use funds from a state-run lottery to express and further a particular message (e.g., the value of vaccines for public health) without restricting other messages, including directly opposed mes­ sages (e.g., the dangers of vaccines for public health). The terms “restrictions/ hinderings” and “enablements/furtherings” can be taken to refer to different modes of state action, and the present point is that a commitment to neutral­ ity regarding one mode need not commit one to neutrality regarding the other. Working with this distinction, the neutrality schema for the domain of free speech and expression can be defined as follows: NR: In contexts C, the state, in its restrictive mode, is required to be neutral with respect to the viewpoints expressed by its members in the domain of speech and expression. This refined version of the Neutrality Restriction is not violated when the state speaks its own voice, enabling or furthering the viewpoints that it endorses. To be sure, its defensibility rests on the plausibility of drawing the line where it draws the line. Critics will object that aggressive furtherings can shade into hinderings.36 Some subsidies for particular views can amount to restric­ tions on the expression of alternative views. Suppose the point is granted. The refined Neutrality Requirement may remain defensible. A proponent of

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the requirement can hold that whenever a furthering of a view by the state crosses the line from a furthering to a hindering, it constitutes a “restriction” on the expression of other views and, as such, is properly included within the restrictive mode of state action. So long as most state furtherings do not constitute state restrictions, the distinction between the two modes of state action will remain meaningful and significant. Like other specifications of the neutrality schema, the refined version of the Neutrality Requirement outlined here must rest on the normative con­ siderations that underwrite it. These considerations include considerations about the type of speech environment that best serves those who live within it, including prominently their interest in living good lives. Conclusion The central theme of this chapter has been that appropriate and defensible requirements of state neutrality vary across spheres. In discussing the spheres of religion, language, and speech, I have attempted to illustrate the complex­ ity and flexibility of this general approach to state neutrality. The spheres approach, I have also emphasized, coheres with perfectionist commitments. The character and specification of the relevant neutrality requirements opera­ tive in different spheres of social life, at the end of the day, rest on substan­ tive, and no doubt controversial, judgments, including judgments about the goods of human life. Political perfectionists should be selective in their assessment of state neu­ trality. No political perfectionist should embrace state neutrality in the broad form that its most influential proponents have presented it. But a more dis­ criminating approach may prove to be defensible. As is true elsewhere, the devil is in the details. Notes 1 K. Greenwalt, Religion and the Constitution, vol. 2 (Princeton, NJ: Princeton University Press, 2008), 444. 2 J. Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986); T. Hurka, Perfectionism (Oxford: Oxford University Press, 1993); G. Sher, Perfec­ tionism in Politics (Cambridge: Cambridge University Press, 1997) and S. Wall, Liberalism, Perfectionism and Restraint (Cambridge: Cambridge University Press, 1998). 3 B. Ackerman, Social Justice in the Liberal State (New Haven, CT: Yale University Press, 1980); C. Larmore, Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987); and J. Rawls, Political Liberalism (New York: Columbia University Press, 1993). 4 The issue here is, in actuality, more complicated still. The unintended non-neutral effects of state action can sometimes generate a valid complaint under a plausible version of the requirement of state neutrality. See my “Neutrality and Respon­ sibility,” Journal of Philosophy 98, no. 8 (2001): 389–410 and the response to it by W. Schaller, “Is Liberal Neutrality Insufficiently Egalitarian? Neutrality of

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7 8 9 10

11

12 13

14

15 16 17 18 19 20 21

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Steven Wall Justification Versus Strong Egalitarianism,” Journal of Philosophy 101, no. 12 (2004): 639–650. But it is standard for liberal neutralists to declaim, much too causally in my view, responsibility for the non-neutral effects of state action that is neutrally justified. Rawls, Political Liberalism, 227–230. Rawls suggests at one point that it is neither feasible nor desirable for state offi­ cials to be neutral among conceptions of the good in their ordinary political activ­ ity. (Justice as Fairness: A  Restatement (Cambridge, MA: Harvard University Press, 2001), p. 91n13). J. Quong, Liberalism without Perfection (Oxford: Oxford University Press, 2011) and G. Gaus, The Order of Public Reason (Cambridge: Cambridge University Press, 2011). Larmore, Patterns of Moral Complexity, 67. Quong, Liberalism without Perfection. G. Gaus’s view might seem to be an exception, as it centers first on the rules of social morality. But publicly defensible rules of social morality, on his view, would not require ordinary citizens to honor neutrality within their private associations. See The Order of Public Reason (Cambridge: Cambridge University Press, 2011). W. Kymlicka expresses the consensus on this point well: “Liberal neutrality does not restrict the scope of perfectionist ideals in the collective activities of individu­ als and groups. Perfectionist ideals, although excluded from a liberal state, have an important place in human affairs and, hence, an important place in a liberal society.” “Liberal Neutrality and Liberal Individualism,” Ethics 99 (July 1989): 883–905, at 897. K. Greenawalt, Private Consciences and Public Reasons (Oxford: Oxford Univer­ sity Press, 1995). The numbers matter, for example. If two conceptions of the good are equally worthwhile (or on a par), but one has a large number of adherents and the other only a few, then non-neutral state support for the former may be justified on grounds of fairness. The differences between these notions—equality, incommensurability, on-a­ parness—are discussed in the essays collected in R. Chang, Incommensurability, Incomparability, and Practical Reason (Oxford: Oxford University Press, 1997). These differences do not affect the central idea expressed by Restricted State Neutrality. M. Walzer, Spheres of Justice (New York: Basic Books, 1983), 6. J. Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980), 89–90 (describing “the basic good” of religion). Just as one might assess scientific theories in terms of their coherence and explana­ tory reach, even as one judges them to be false. R. George, Making Men Moral (Oxford: Oxford University Press, 1993), 220–221. The classic argument here is J. Locke, A Letter Concerning Toleration. For a more contemporary statement, see the Declaration on Religious Liberty of the Second Vatican Council of the Catholic Church. S. Wall, “Perfectionism, Public Reason and Religious Accommodation,” Social Theory and Practice 31, no. 2 (2005): 281–304. J. Proast, “The Argument of the Letter Concerning Toleration, Briefly Consider’d and Answer’d,” in The Reception of Locke’s Politics, Vol. 5. The Church, Dis­ sent and Religious Toleration 1689–1773, ed. M. Goldie (London: Pickering and Chatto, 1999), 25–37. For discussion of the difficulties of reconciling religious toleration with religious commitment, see T. Christiano, “Does Religious Toleration Make Any Sense?,” in Contemporary Debates in Social Philosophy, ed. L. Thomas (Oxford: Blackwell, 2008).

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23 A. Patton and W. Kymlicka, Language Rights and Political Theory (Oxford: Oxford University Press, 2003). 24 See P. van Parijs, Linguistic Justice for Europe and for the World (Oxford: Oxford University Press, 2014). 25 Thus, or so I  am suggesting, state neutrality with regard to language could be pursued along the lines of either the personality principle (where the focus is on the speaker, wherever he resides) or the territorial principle (where the focus is on the rights of majorities to regulate within their territories). For the distinction between these two principles, see the Royal Commission on Bilingualism and Biculturalism (1967). 26 For those inclined to reject this assumption, and who would favor state neutral­ ity in the example we are considering, it can be pointed out that the case for neutrality only is strengthened if it can be shown to hold, even given the disputed assumption. 27 W. Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995). 28 A. Margalit and J. Raz, “National Self-Determination,” Journal of Philosophy 87, no. 9 (1990): 439–461. 29 For discussion and defense of this prorated approach, see A. Patten, Equal Recog­ nition (Princeton, NJ: Princeton University Press, 2014). 30 Someone might propose that neutral treatment by the state be defined in terms of fair treatment. Whenever the state treats its members fairly, then it treats them neutrally. But this definition would have the awkward consequence that a state policy of supporting a single language and providing no support to any other language spoken in its territory would be a policy of neutrality, so long as this constituted fair treatment of the individual speakers involved, as it well might in contexts were aggregation concerns loom large. 31 J. S. Mill, “On Liberty,” in The Collected Works of John Stuart Mill, vol. XVIII, ed. J. Robson (Toronto: University of Toronto Press, 1965–1991), 260. 32 Speech is also action, and there are actions that are performed by speech. Defend­ ers of free speech must defend the speech/action distinction. I assume here that some such defense can be successfully mounted. 33 Viewpoint neutrality is not equivalent to content neutrality. The law might treat different categories of speech differently, favoring political speech over commer­ cial speech, for example, but adhere to strict neutrality regarding viewpoints expressed within each category. For discussion of the distinction, see M. Kramer, Freedom of Expression as Self-Restraint (Oxford: Oxford University Press, 2021). 34 H. Marcuse, “Repressive Tolerance,” in A Critique of Pure Tolerance (Boston, MA: Beacon Press, 1969). 35 For discussion, see L. Alexander, Is There a Right of Freedom of Expression (Oxford: Oxford University Press, 2005), 82–102. 36 Alexander, Is There a Right to Freedom of Expression?, 101–102.

References Ackerman, B. 1980. Social Justice in the Liberal State (New Haven, CT: Yale Univer­ sity Press). Alexander, L. 2005. Is There a Right of Freedom of Expression (Oxford: Oxford University Press). Chang, R. 1997. Incommensurability, Incomparability, and Practical Reason (Oxford: Oxford University Press). Christiano, T. 2008. “Does Religious Toleration Make Any Sense?” in Contemporary Debates in Social Philosophy, ed. L. Thomas (Oxford: Blackwell). Finnis, J. 1980. Natural Law and Natural Rights (Oxford: Oxford University Press).

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Gaus, G. 2011. The Order of Public Reason (Cambridge: Cambridge University Press). George, R. 1993. Making Men Moral (Oxford: Oxford University Press). Greenwalt, K. 1995. Private Consciences and Public Reasons (Oxford: Oxford Uni­ versity Press). ——— 2008. Religion and the Constitution, vol. 2 (Princeton, NJ: Princeton Univer­ sity Press). Hurka, T. 1993. Perfectionism (Oxford: Oxford University Press). Kramer, M. 2021. Freedom of Expression as Self-Restraint (Oxford: Oxford Univer­ sity Press). Kymlicka, W. 1989. “Liberal Neutrality and Liberal Individualism,” Ethics 99: 883–905. ——— 1995. Multicultural Citizenship (Oxford: Oxford University Press). Larmore, C. 1987. Patterns of Moral Complexity (Cambridge: Cambridge University Press). Marcuse, H. 1969. “Repressive Tolerance” in A Critique of Pure Tolerance (Boston, MA: Beacon Press). Margalit, A. and Raz, J. 1990. “National Self-Determination,” Journal of Philosophy 87/9: 439–461. Mill, J. S. 1965–1991. “On Liberty” in The Collected Works of John Stuart Mill. vol XVIII, ed. J. Robson (Toronto: University of Toronto Press). Patton, A. 2014. Equal Recognition (Princeton, NJ: Princeton University Press). ——— and Kymlicka, W. 2003. Language Rights and Political Theory (Oxford: Oxford University Press). Proast, J. 1999. “The Argument of the Letter Concerning Toleration, Briefly Consider’d and Answer’d,” in The Reception of Locke’s Politics, Vol. 5. The Church, Dis­ sent and Religious Toleration 1689–1773, ed. M. Goldie (London: Pickering and Chatto): 25–37. Quong, J. 2011. Liberalism without Perfection (Oxford: Oxford University Press). Rawls, J. 1993. Political Liberalism (New York: Columbia University Press). ——— 2001. Justice as Fairness: A Restatement (Cambridge, MA: Harvard Univer­ sity Press). Raz, J. 1986. The Morality of Freedom (Oxford: Oxford University Press). Report of the Royal Commission on Bilingualism and Biculturalism. 1967. Book I. (Ottawa: The Queen’s Printer). Shaller, W. 2004. “Is Liberal Neutrality Insufficiently Egalitarian? Neutrality of Jus­ tification Versus Strong Egalitarianism,” Journal of Philosophy 101/12: 639–650. Sher, G. 1997. Perfectionism in Politics (Cambridge: Cambridge University Press). van Parijs, P. 2014. Linguistic Justice for Europe and for the World (Oxford: Oxford University Press). Wall, S. 1998. Liberalism, Perfectionism and Restraint (Cambridge: Cambridge Uni­ versity Press). ——— 2001. “Neutrality and Responsibility,” Journal of Philosophy 98/8: 389–410. ——— 2005. “Perfectionism, Public Reason and Religious Accommodation,” Social Theory and Practice 31/2: 281–304. Walzer, M. 1983. Spheres of Justice (New York: Basic Books).

3

The common good of nations and international order Mark D. Retter

Introduction Since the Cold War’s end, a liberal international order, supported by Pax Americana, has exercised hegemony over international affairs. Its normative vision has the following elements: the subjugation of international relations to a highly solidarist, rule-based order of governance; limits on state sover­ eignty defined by the prohibition on force, fundamental human rights, and humanitarian norms; and ongoing progress in building global governance to realize values of liberty and equality, enhanced democratic governance, and benefits from free trade. Plagued by challenges over the past 30 years, this liberal outlook is in profound crisis.1 Within the midst of that crisis, Russia’s invasion of Ukraine on February  24, 2022, seems to herald an advanced phase of world order transformation.2 Russia has framed its intervention in Ukraine as a direct contestation of EU and NATO expansion into Eastern Europe. Western claims of a “rule­ based order”—with expanding human rights, humanitarian, and democratic standards informed by liberal values—are rejected by President Putin as a hypocritical imposition, illegitimately imposed after the Soviet dissolution to justify Western interference in the domestic affairs of foreign states.3 Instead, Russian foreign policy has set out a multipolar vision of international rela­ tions, emphasizing multilateral diplomatic engagement, especially between great sovereign powers and through the UN Security Council. According to this rival view, the international order consists of a minimalist, decentralized framework of core principles expressed in the UN Charter, such as sovereign equality, national self-determination, and non-intervention. In practice, how­ ever, through contrived justifications for belligerence,4 and brutal military tactics, Russia has demonstrated that there is little, if any, constraint on great powers within its “multipolar” worldview. The international rule of law is made subservient to collective self-determination through state sovereignty, and balance of power in foreign relations. What this contestation between rival visions of world order reveals is a poverty in our legitimating concepts; concepts with real significance in how

DOI: 10.4324/9781032702766-5

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we articulate reasons for actions within diplomatic practices, and shape those actions by reason. That conceptual poverty is revealed through an unstable dialectic between liberal internationalism, advancing individualized rights at the expense of national solidarity; and a collectivist, state-based nationalism, asserting sovereign privileges for those wielding state power. When contem­ porary theory attempts to escape that dialectic—between order for the sake of individual rights and order for sovereign rights—it ends up replicating a dichotomy between individualist and collectivist ontologies at other lev­ els of analysis. In short, there is a justificatory deficit in the culture of late modernity concerning the legitimacy and limits of political authority because dominant modes of thought separate the political domain from human socia­ bility. Addressing that deficit, this contribution reclaims and extends intel­ lectual resources from the classical natural law tradition, drawing selectively on Alasdair MacIntyre. Deploying his practice-based account of politics, it seeks to explain the legitimacy of political and legal authority by reference to human sociability and the “common good,” and warily extends that expla­ nation into the transnational domain. 1 Human sociability and governance Dominant international relations theories fail to account for the way vari­ ous practices and traditions of political societies shape world order, and to explain why that order has legitimacy by reference to an integrated good for these societies.5 Despite MacIntyre’s critical stance on nation-states, I argue that his analysis of practices, politics, and natural law articulate core princi­ ples of political legitimacy that can re-ground understandings of state sover­ eignty and international order, with a better grip on political realities. According to MacIntyre, practical rationality is embedded within the “norm-governed transactions and relationships of a particular institutional­ ized social order,”6 comprised of a complex network of different social “prac­ tices”: for example, farming, architecture, medicine, physics, philosophy, friendship, family life, politics, and law. “[W]hat makes practical rationality possible within each practice,” he says, “is the way in which the practice is directed toward the achievement of certain goods, specific to and internal to each particular practice, which provide both activity and enquiry within each practice with their telos.” Participants in practices learn to distinguish between what seems good based on untutored desires, and what is good by collaborative standards internal to the performance of the activity. In doing so, they reason not as autonomous individuals, but self-directing collabora­ tors. Otherwise, when acting on competing desires, for rivalrous and exclud­ able external goods—like power, money, and honor, they instrumentalize and impair the cooperative achievements at stake.7 Hence, “internal goods” are ends that are good for agents as collaborative participants, while also motivating participation. These are “common goods.” They are achieved and enjoyed together, by participation in “common action.”8 Standards for

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their achievement can be articulated as “rules of practice” and may be given institutional form to provide authoritative direction within the group.9 Given widespread involvement in practices, when questioning their per­ sonal good, human agents are implicated in various joint inquiries requir­ ing an answer to “What is our good?” Essentially, their vocation to human flourishing is conditioned by the pursuit of various common goods through human associations. The need for joint deliberation and common action extends beyond proximate practices, to questions of priority and integration within an encompassing community. In particular, while ends of family life are natural and distinct, they are far from complete and self-sufficient. They depend on relations within family networks, and various other practices and associations, including workplaces and schools, requiring collaboration within a broader community.10 Questions of priority require discernment of whether relevant ends are genuinely good to achieve here, now, based on some understanding of the overall good for human persons and community. Addressing these problems of common action, politics is an “architectonic practice.” Political activity serves to prioritize and integrate the various ends of an encompassing community, and to craft institutional structures and rules to order that community to a common good.11 As the telos of politics, this common good involves some concrete historical ideal—some notion of the “complete” or “perfected” community toward which political activity is directed.12 This is a conception of what it means to realize the common good through an institutionalized political order, providing sufficient conditions to enable citizens to effectively pursue their flourishing in a given era and place, through their own action, as well as the common action of other associations. A political community’s common good is not derived from consensus. Mutual commitments to its achievement are presupposed by vocations to human flourishing through social practices. Moreover, its realization requires dedication to standards of justice that sustain concord and enable common action. To some extent, the demands of justice may be articulated as gen­ eral rules and principles.13 However, their formulation is subject to errors in judgment, and will often be under-determinative of what should be done to realize the common good. Accordingly, there can be extensive, reason­ able disagreement, exacerbated by institutional complexity, variety, and dynamism in human practices, specialization and diversity of expertise, and variant proximity of stakeholders to relevant problems. Nevertheless, timely decision-making and coordination is necessary. Absent unanimity, justice requires political authority to be recognized and delimited, with effective power to govern by law and determine standards for common action.14 Objections to this high-level justification for political authority may be framed in terms of disagreement. MacIntyre himself recognizes the intracta­ bility of disputes in late modernity, between rival traditions with divergent opinions about human nature, reason, politics, and justice, as well as incom­ patible epistemological standards to resolve those differences. How can the common good be an end for public discourse and authority given radical

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disagreement? MacIntyre’s answer rests on standards from cooperative prac­ tice, which attune human inclinations to certain moral preconditions that “forbid us to endanger gratuitously each other’s life, liberty, or property.”15 These natural law precepts provide minimum guidance on what natural jus­ tice requires. Beyond them, requirements of justice have been articulated as general principles across different political societies—worked out and tested through practice, yet also partially adapted to socio-historical conditions through positive law. These jus gentium principles (law of nations) frame and guide political deliberation within the customary traditions of specific societies, even when political disputes are marked by intransigent ideological positions.16 The ethical claims of jus naturale (natural law precepts and jus gentium) need not be overstated in rationalist terms. Limits in knowledge and determi­ nacy of common good requirements justify the authoritative specification of common action through posited standards (determinatio), shaped by specific customs and principles embodied in a community’s practices and traditions— the jus civile.17 Hence, the political common good provides grounds for a crucial group right. At the foundation of legitimate governance is a group moral right, vested in the political community, to presumptive obedience from citizens due to its enabling role for common action. This right is exercis­ able by recognized authorities on behalf of the community, with enforcement powers. It is also conditioned by a duty to give authoritative determination to the community’s common action for its common good, and to administer justice. In order to sustain the presumptive moral claim to obedience, politi­ cal authorities must work within and build on what is right by jus naturale. Otherwise, their legitimacy will be eroded; they will begin to resemble a mafia operation,18 with difficulties justifying the obligatory character of its “laws.”19 Although the common good’s relative primacy supports the presumptive force of political rule, two conditions require emphasis. First, the common good must aim to realize socio-political conditions for the personal flourish­ ing of all community members. Second, each person’s vocation to human flourishing transcends any temporal political common good. Given the importance of personal initiative and deliberation for human fulfilment, these two conditions entail a priority in agency for achieving the common good, expressed through two complementary principles. Solidarity captures the normative commitment of persons to the social whole, its common agency, and the good of other members. Subsidiarity attunes solidarity to that respect due to free decision-making and action by more proximate groups or per­ sons, requiring larger communities to protect the legitimate autonomy of smaller com­ munities, to provide them with the assistance (subsidium) needed to ful­ fil their ends, and to coordinate and regulate their activities within the common good of the larger community, of which they are a part and which is also necessary to the flourishing of their individual members.20

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Together, solidarity and subsidiarity guide the right balance of competences between local, national, regional, and international governance in terms of the appropriate scope, location, and nature of authority. There are also com­ mon ends pursued through intermediate associations, which contribute to personal flourishing and the common good. These groups can be communi­ ties through which personal vocations are enabled and lived out in society, as well as sites for common action to resist the overreach of “larger,” “distant,” or “less appropriate” types of governance. 2 Nation-states and the search for completeness The previous section outlined a justification for authority within “political community.” The “political community” concept, however, applies to vari­ ous human societies, dispersed across history and geography. This section explores the relationship between these societies and state sovereignty, as groundwork to explain international relations and order. While political societies appear distinct in certain respects, there can be considerable interpenetration of people, practices, and traditions. A key fac­ tor defining and reinforcing their distinctness as polities is the institutional arrangements that develop, through “determinatio,” to delimit authorities and jurisdictions. Building on the previous section, determinatio captures the creative specification and delimitation of political institutions and rules— developing jus civile within the framework of jus naturale—for the specific conditions of a people and culture with sufficient sentiments of solidarity to order common life together. That constitutional specification can occur by custom over many generations, shaped by the reason and practice of diverse agents, and often in response to political crises. Within this process, certain “tensions” are experienced between demands of solidarity and subsidiarity, which frame the appropriate level and scope for relatively sufficient forms of governance. Effective government, for instance, needs to be sufficiently broad in competence, and administratively dispersed across people and territory, to mobilize adequate common action and resources; yet also sufficiently proxi­ mate and well-adapted to resolve problems and enforce laws in localized communities. The form of a relatively sufficient polity will vary across dif­ ferent eras—for example, tribe, city state, feudal kingdom, and nation-state. Moreover, the delimitation and reformation of constitutional orders unfolds in view of external relations, as claims to jurisdiction are formed, contested, and agreed with foreign powers. In hindsight, political boundaries seem clearer due to their institutional determination, but also because our political thinking is highly structured by “state sovereignty.” Yet, extrapolating from Section 3.2, it is the goods of practices that have a deeper justificatory and explanatory role than insti­ tutions in shaping the geopolitical landscapes of societies and foreign rela­ tions.21 However, given the co-constitutive role of institutions, contemporary questions about “order” between heterogeneous political societies chiefly

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concern a search for “completeness-in-community” beyond the institution­ alized limits of nation-states. That search for completeness follows from experiences of insufficiencies, where nation-states cannot fully realize certain means and ends for their citizens’ human flourishing, except through coop­ eration with foreign peoples and powers. To properly evaluate these limits, I depart from Macintyre’s critical stance against the politics of states.22 Given the radical extent of human dependency— articulated in Dependent Rational Animals—the politics of local com­ munities must be radically incomplete in providing for the fulfilment of members. Although MacIntyre recognizes this, he perceives state institutions to be inherently corrupted by a bureaucratic, mutual advantage rational­ ity, corrosive of authentic joint deliberation about the common good. In my opinion, his idealism concerning the deliberative character of politics over­ burdens political realities and underappreciates governance by law.23 While a political common good implies some complete, institutionalized political community for its realization, existent political societies are typically defec­ tive or incomplete, especially given the challenges of human evil. Nationstates should not be confused with the ideal; but that does not mean they do not participate in, contribute to, or aim at a common good in ways that give presumptive weight to their institutions’ authority.24 That moral weight is reinforced by considering the precious character of institutions and legal order, the realizable alternatives for governance, and the morally permissible means to realize such alternatives. Given the grave problems of a revolution­ ary mindset, significant deference should be given to institutions bearing the customary recognition of authority within a community. By consequence, inquiry into contemporary international order should follow from conditions for a well-ordered politics, predominantly through nation-states. The legitimacy of state institutions must, however, be grounded beyond sovereignty. If “sovereignty” projects some original or unlimited power on an abstracted “statehood,” to create space for an artificial raison d’etat, then the concept should be jettisoned as a source of confusion. It leads to those dichotomies between atomism and collectivism warned against in the intro­ duction.25 Instead, “sovereignty” serves to identify the self-governing quality of a territorially defined people, with its own jus civile subsisting through changes in rulers, governments, and forms of government.26 In this vein, it expresses a prima facie presumption that the integrated governmental agency over a nation and territory, delimited and integrated within some custom­ ary constitutional order—the “state”—represents the relatively self-sufficient common action of its people, for achieving their political common good. The legal doctrine of sovereignty, then, reserves questions about the legitimacy and conduct of state authorities and institutions largely for “domestic” poli­ tics. Based on jus gentium principles, it expresses these presumptions along two dimensions: the domestic standpoint, concerning the presumed responsi­ bility of state authorities for their people’s common action; and the external

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standpoint, concerning the recognition and deference to be afforded to the state’s representative agency by foreign agencies. Accordingly, there is a close connection between presumptions of sover­ eignty and reasons for political legitimacy. Indeed, jus gentium principles have been embodied in positive legal doctrine, as international jurists and diplomats have debated and worked out the implications of peoples’ selfdetermination for positive international law. As a political principle recog­ nized in Article 1(2) of the UN Charter, the self-determination of peoples is not confined to the right of colonized peoples to determine their international status, free from foreign subjugation.27 More substantively, it is the moral claim of a “people” or “nation,” living within an adequately defined terri­ tory, to pursue their common good through their own political society and institutions. To avoid dangers of ethno-nationalism, these terms—“people” and “nation”—should be understood by reference to the dynamic conditions of practice in a political society, with the potential for political institutions and legal frameworks to reinforce a shared “identity-in-practice” as a politi­ cal society. The importance of a people’s self-determination rests on the soli­ darity principle, which provides presumptive moral weight to the authority of de jure political institutions within a nation-state; as well as subsidiarity, giving deference to the political agency of that state’s institutions within its own jurisdiction. In international law, this finds expression in “national self­ determination”—a nation’s claim to self-governance through the constitu­ tional structures of its state. The concept of determinatio then explains the scope for legitimate variety in forms of government and governmental insti­ tutions across nation-states. Legitimate determinationes, however, operate within the framing condi­ tions of jus naturale. Confronted with political tyranny, a people may have a legitimate claim to determine their common action, independent from their existing political institutions. This can be relevant for indigenous or ethnic minorities subject to systematic exclusion, persecution, or genocide (e.g., the Uyghurs in China), where their moral rights as a “national, ethnic, racial or religious” group, to shape their life through their traditions, beliefs, and lan­ guage, are systematically violated. In extreme cases, political repression can lead to moral claims for “external self-determination,” justifying the crea­ tion of an independent political society, with a case for recognition as a state with jurisdiction over an adequately defined territory. But self-determination also applies to the polity at large, whose social identity as a nation is forged within the practices, traditions, and institutional structures of a territorially defined state. In particular, the moral right of self-determination can factor into whether to recognize the government of a state as the legitimate rep­ resentative of its people—displacing presumptions associated with national self-determination and sovereignty. Through self-determination, the grounds and limits of the legitimate com­ petence of state institutions, in domestic and foreign relations, are expressed

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in terms of the presumed representation of a nation’s common action. Mov­ ing from this level of various state agencies, to the international order, one needs to explain why common action through an international community is necessary. Why can’t states concern themselves simply with domestic affairs and assertions of non-interference? This question should be addressed in a dynamic way—from an embedded perspective within nation-states, searching for “completeness” or “self-sufficiency” in some encompassing community—rather than an abstracted account of the “complete commu­ nity” as such. Limits to human communities are never fully distinct. They are understood through the ends of human relations, and ultimately, as I explain in the next section, through the relations we ought to have with strangers.28 3 International law and institutions Beginning with the claim that state authority is justified by its people’s “domestic common good,” the hypothesis of this section is that a state’s “domestic good” is interdependent with that of other states, associations, and human persons, within a much broader transnational community. By consequence, problems of common action require forms of transnational and international governance that transcend state competence and render any unqualified claim to sovereign independence precarious. The common ends to achieve through transnational common action map out the contours of a “transnational common good.” Even a relatively uncontroversial common end—peaceful coexistence between nations—has systemic implications for an international society. Conditions for peace are pursued in our own age through the interstate sys­ tem, as a way of ordering the global human community based on mutual respect for presumptions of sovereignty.29 This resilient customary order developed within the Western tradition, as the jus gentium was adapted into jus inter gentes (law between nations), and shaped by a crystallizing con­ ception of state sovereignty.30 It provides the contemporary framework for mutual recognition, claims, and cooperation between states. Even the power dynamics of foreign relations are articulated predominantly within this nor­ mative space. An international legal practice has taken shape to sustain order in inter­ national relations, and regulate the exercise of state power based on gen­ eral principles, international custom, treaties, and the persuasive reasoning of jurists. The efficacy of the international legal system that has developed remains precarious because of its decentralized character, and the capacity of powerful states and alliances to violate its requirements without any credible threat of enforceable sanctions.31 It lacks the extensive, integrated governmen­ tal agency and effective power for authoritative determination and enforce­ ment: a centralized executive with general enforcement powers; a legislature to codify international laws; and a judiciary with compulsory jurisdiction. Nevertheless, the normative ordering of international society by legal rules

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and principles is not purely a product of power relations. Its ongoing nor­ mativity depends on a shared sense of ethical obligation within the practice of foreign relations, rooted in the interdependent transnational conditions of each political society’s common good.32 These conditions of dependency attune diplomatic decision-making toward affirming international law as real law, and perceiving non-congruous state conduct as violation. Conditions of transnational dependency also point to a more substan­ tive “transnational common good” beyond mere coexistence, since personal vocations to human fulfilment incorporate all sorts of transnational common ends. Article 1 of the UN Charter sets out some in broad terms, as purposes of the United Nations, such as friendly relations based on the equal rights and self-determination of peoples, promotion of human rights, and cooperation to solve economic, social, cultural, and humanitarian problems. The high level of generality is necessary. It allows for the dynamic conditions of human practices, and available means by which different goods can be achieved. To flesh out details, it suffices to point to the manifold ways in which the ends of our heterogeneous activities have become increasingly diffuse and globalized, through diverse transnational associations and networks, as well as state and interstate institutions; and also, through transformative technologies—for example, the internet, social media, and digital currencies—that facilitate such activities across, within, or in spite of boundaries, jurisdictions, and applicable regulation. By consequence, the institutionalized embodiment of our social order has become more and more complex, through a plurality of regulative means and overlapping legal domains—for example, state law, sports law, religious law, tribal law, and various professional codes.33 The application and integration of those regulative means is itself a crucial aspect of a transnational common good. Due to the relative governmental sufficiency of states, the dominant regu­ lative means to achieve many transnational ends will be through interstate cooperation, and the development of international law to define state obliga­ tions and rights. States are not, however, the only common agency through which a political common good should be achieved, even in its transnational dimensions. Other intermediate associations within and across political societies—for example, families, churches, schools—contribute in unique ways to the personal vocations of members. Although typically subject to “state-made law,” these associations can have legitimate claims to subsidi­ ary action to pursue certain transnational ends. Some provide impetus for non-governmental organizations—for example, the World Organization of the Scout Movement, International Air Transport Association, and Catholic Church—that undertake various transnational activities, but do not derive competence from the international legal order, or potentially even from domestic legal orders. Depending on the distinct importance of their common agency for human fulfilment, the subsidiarity principle articulates an authen­ tic culture of freedom, by which these associations can resist the bureaucratic overreach of state, regional, and international institutions.

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A wider notion of the transnational community and order, beyond the interstate system, is also important for the normative character of interna­ tional law.34 The force of international law rests on the need for (predomi­ nantly) interstate common action. However, the end for that common action is a “transnational common good” between human societies, ultimately for the sake of human flourishing. This follows from the claim that states remain custodians of their people’s common action, and thus international society is irreducible to relations between state institutions. Moreover, while interna­ tional institutions, such as the UN or IMF, derive original competence from interstate agreements, the normative pull to compliance and cooperation with such institutions rests on their specific contribution to a transnational common good, as well as the weight of practical reasons for the international legal order as a whole, for realizing that common good. By consequence, the unilateral repudiation of obligations—under, for example, the BREXIT Withdrawal Agreement, WTO system, or even bilateral investment treaties— can never be simply a matter of withdrawing “state consent,” in the exercise of an atomistic conception of “sovereignty.” Accordingly, the creation of international organizations, through inter­ state agreements, develops layers of institutional complexity that bind states. Such institutions have been crafted with various mandates, competences, and rules, which shape different forms of common action on behalf of regional and international communities: for example, the UN system, including the ICJ and WHO; economic institutions, such as the WTO and IMF; other global organizations, including the ICC, Universal Postal Union, and Inter­ national Telecommunications Union; regional organizations, such as the Organization of American States, African Union, and NATO; and culturally affiliated institutions, like the Commonwealth of Nations and Arab League. There are also organizations, such as the ICRC, which have impetus as non­ governmental associations, but engage in transnational activities based on international legal mandates. This institutional diversity reflects human inge­ nuity, exercising determinatio to create institutional frameworks and deploy legal tools that address diverse problems for a community of nations. While international institutions lack an integrated governmental agency, there are enforcement mechanisms beyond state self-help and strategic ad hoc alliances. There can be various multilateral enforcement mechanisms and sanctions available depending on the problem. While there is high compli­ ance in certain areas of international law where state interests converge, in the vital domain of peace and security there can be serious challenges from great power politics, as evident in the Ukraine conflict. The prohibition on force in international relations is enforced chiefly through the UN Security Council’s powers, which can be paralyzed depending on the interests and resolve of the five permanent members. Beyond the Security Council, there can be pressure from non-binding UN General Assembly resolutions, or from binding judgments by international courts. Regional security organizations,

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such as the African Union, OSCE, or NATO, or other joint alliances, can also play a subsidiary enforcement function through collective military action, sanctions, or other interventions. There is also the threat of losing position or prestige within international organizations or in broader diplomatic engage­ ments, which can encumber future national interests. All these mechanisms have been deployed against Russia’s war in Ukraine. What this demonstrates is that the enforcement of international order, especially in its most vital func­ tion to sustain peaceful relations, is often through highly adaptive means, and always subject to the interests and relative power dynamics of states. And yet, it cannot be emphasized enough that this situation also preserves a healthy degree of subsidiarity for state authorities in determinationes for their people’s common good. Once again, however, if political legitimacy is to be sustained, those deter­ minationes must proceed within jus naturale. This explains the international legal doctrine of jus cogens superveniens, that certain norms are recognized as so fundamental to the international community that they do not permit of derogation, and operate to invalidate contrary rules that might otherwise develop from state consent and practice. The “most frequently cited candi­ dates” are the prohibition of aggression, right to self-defense, prohibitions of genocide, torture, slavery, piracy, and racial discrimination, crimes against humanity, and basic humanitarian rules to protect civilians in armed con­ flicts.35 Through these jus cogens norms, international law recognizes that there are fundamental ethical limits to political governance and foreign pol­ icy,36 limits that Russia has transgressed by invading Ukraine. Implicit in those limits is an exceptionless moral concern for the intrinsic dignity of human persons, wherever found, which demands further explana­ tion. Why is it that respect for natural law standards in one political soci­ ety can and should concern those within another political society, and why should this ethical concern have international legal implications? Why, for instance, should it matter how China treats minorities within its own bor­ ders, how the United States treats terror suspects within Guantánamo Bay, or how Russia treats Ukrainian civilians within its sphere of influence in East­ ern Europe? Some international theorists respond by extending the fiduciary character of state authority to humanity as such.37 This approach has merit. However, an abstracted notion of “fiduciary relationship” lacks sufficient content unless it has deeper foundations in human sociability—foundations that justify why there is this special relationship between states and foreign­ ers. What these ethical limits presuppose is a transnational common good of a global human society, based on radical human dependency. How can we justify this presupposition? From the human agent’s perspective, the complex interdependence of human relations escapes adequate articulation. Instead, as MacIntyre argues, practical sensitivity to that dependence is fundamental to recognizing the human dignity of strangers, and developing important moral virtues.38 We

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cannot know in advance who will be an interlocutor in joint deliberation about some good intrinsic to our flourishing. We also cannot know in advance who we will depend on, and who will need our generosity. We simply need to learn to treat every person, even strangers, as participants in our networks of giving and receiving. This dependency extends the ambit of justice to cover generosity toward human distress and need. We should be disposed to show strangers hospitality and take pity on their needs for the sake of their human­ ity. This involves rational sensitivity to their distress, apprehending it as one’s own, regardless of preexisting relations.39 Solidarity in distress means that states are not only fiduciaries to their own people, but to all human persons. The good of their people should be partially identified with that of human strangers. This fiduciary character to state authority explains why states should give overriding authority to jus cogens norms. What can be done when states violate fiduciary duties to humanity? This question identifies another crucial aspect of the human search for “com­ pleteness-in-community”—the demand for just remedies beyond proxi­ mate political powers. Human rights claims developed to express these restless demands, as victims appeal to “higher” powers in the international community—for example, third states or international institutions. Legiti­ mate international interventions rest on the claim that intervening powers represent the common action of the transnational human community to real­ ize the just claims of its members, within states that systematically fail to administer justice. When and how this should happen is a question of judg­ ment in response to different injustices, involving the right balance between solidarity and subsidiarity, and appropriate political and legal means. But the evolution of the international order, toward greater intervention in domestic affairs, partly reflects this restless human desire for justice to be done, with appeals to “higher” authorities to administer justice, as members in a more and more encompassing community. To whom can we appeal for justice when all our political institutions fail us? 4 Crisis and pluralism in international order The failure of order to realize justice is the predicament confronting the Ukrainian people. The crisis involves a paralysis of international order in relation to its most vital function, maintaining peace and security. Russian justifications, for using military force to acquire Ukrainian territory, depart altogether from arguable factual and legal grounds. In response, the inter­ national community has failed so far to mobilize common action to reassert the jus cogens prohibition on forcible acquisition of territory. A significant proportion of nations in the Global South have refused to condemn Russia’s conduct; even fewer have taken concerted action to reassert the prohibition with sanctions or pressure. Many of these states seek benefits from strategic neutrality and autonomy, rather than necessarily supporting Russia’s war effort. Nevertheless, the failure to secure resolve and consensus within the

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international community on matters so fundamental to international order is troubling. There are real dangers that the economic and political fallout from the conflict may lead to multipolar fractures in international cooperation between different alliances or spheres of influence. Indeed, given the way the conflict has been framed, as a proxy war against the West, it re-exposes the crisis of liberal internationalism, and enables opportunities for order trans­ formation, through alternative alliances and institutions, free from Western influence.40 Ultimately, the international legal framework may largely remain, but dominant understandings of its normative basis, the principles and values that infuse it, and the power dynamics that shape it are on the verge of trans­ formations that depend significantly on the outcome of the war, and on how the contest itself is understood and addressed in the aftermath. Applying the arguments in this chapter, we should resist reductive under­ standings that characterize the contest as being between liberal and multipo­ lar visions of world order, or between “democracy” and “autocracy.”41 Let me be clear, the multipolar worldview has been used by Russian foreign pol­ icy in service of fundamental violations of natural law; limits that all political societies should respect as jus cogens. This is a failure of the Russian state to respect its fiduciary duties to the Ukrainian people based on radical human dependence. And yet, legitimate concerns over space for pluralism and deter­ minatio, especially from nations in the Global South, call for a “global reset” of an entirely different order to that of Klaus Schwab.42 Despite espousing self-determination, the liberal international order affords little respect for what different peoples may legitimately cherish and determine by self-governance, through their particular practices, traditions, and comprehensive religious outlooks. It has a practical tendency to abrogate legitimate domains of subsidiarity with forms of bureaucratic individualism, hollowing out political and associational authorities between individuals and ever-higher levels of authority, in order to secure individualized rights and freedoms.43 More fundamentally, liberal ideology is the root cause of our conceptual poverty in legitimating international order, and expressing demands of solidarity and subsidiarity. By liberating the “individual” from constraints of the common good, political order is posed as a fundamental problem to be solved by the artifice of human will and consensus. In prac­ tice, with the absence of consensus, this problematic devolves into incoherent combinations of individualist ideology with bureaucratic methods of govern­ ance, whether at the level of nation-states or international institutions. It is that core incoherence which plagues dominant understandings of interna­ tional order in late modernity, even though political realities from conditions of the common good continue to be reasserted through the moral precondi­ tions for human collaboration—the jus naturale. The right response to liberal hegemony, however, is not some multipolar or multi-order world. It is a real possibility that the community of nations may end up divided into multipolar or multi-order parts.44 But this cannot suppress the potential for human reason to search for completeness-in-community,

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when confronted by problems of the common good that transcend the com­ petences of those new power constellations or institutions. Conditions of human dependence will continue to normatively undergird our international legal order. Moreover, as human reason searches for solutions to common problems, appeals to some notion of the transnational common good are inescapable, to provide criteria of integration and priority between different orders of governance based on more sufficient forms of human community, that better realize human flourishing. This contribution has set out broad principles for that practical, collabo­ rative pursuit, of a political order that comes to grips with the search for completeness-in-community. Not only does it provide justificatory grounds for international legal obligation and international institutions. It also gives voice to the rights of different peoples to authentic self-determination within the constraints of jus naturale, as articulated and adapted to the practice of diverse human societies in jus gentium. Notes 1 Georg Sørensen, A Liberal World Order in Crisis: Choosing Between Imposition and Restraint (New York: Cornell University Press, 2011); G. John Ikenberry, A World Safe for Democracy: Liberal Internationalism and the Crises of Global Order (New Haven, CT: Yale University Press, 2020). 2 Chancellor Olaf Scholz, Policy Statement (Zeitenwende Speech), Berlin, 27 February 2022. 3 Roy Allison, “Russian Revisionism, Legal Discourse and the ‘Rules-Based’ Inter­ national Order,” in Hybridisation of Political Order and Contemporary Revi­ sionism, ed. Nik Hynek and Vít Střítecký (London: Routledge, 2022); Andrei Tsygankov, Russian Realism: Defending “Derzhava” in International Relations (London: Routledge, 2022). 4 Marc Weller, “Ukraine—The New Normal?,” New Law Journal, no. 7969 (4 March  2022); James Green, Christian Henderson, and Tom Ruys, “Russia’s Attack on Ukraine and the Jus Ad Bellum,” Journal on the Use of Force and International Law 9, no. 1 (2022). 5 Adrian Pabst, Liberal World Order and Its Discontents: Civilisational States and Cultural Commonwealths (London: Routledge, 2018), chs. 4 and 5. 6 Alasdair MacIntyre, “Practical Rationalities as Forms of Social Structure,” in The MacIntyre Reader, ed. Kelvin Knight (Cambridge: Polity, 1998), 123. 7 Alasdair MacIntyre, After Virtue, 3rd ed. (Notre Dame: University of Notre Dame Press, 2007), 187–191. 8 Mark D. Retter, “Common Goods, Group Rights, and Human Rights,” in The Cambridge Handbook of Natural Law and Human Rights, ed. Tom Angier, Iain T. Benson, and Mark D. Retter (Cambridge: Cambridge University Press, 2022). 9 MacIntyre, After Virtue, 194–195. 10 Alasdair MacIntyre, Ethics in the Conflicts of Modernity (Cambridge: Cambridge University Press, 2016) (henceforth: “ECM”), 168–176. 11 Alasdair MacIntyre, “Politics, Philosophy and the Common Good,” in The MacIntyre Reader; Alasdair MacIntyre, Dependent Rational Animals (Chicago, IL: Open Court, 1999) (henceforth: “DRA”), 113–146; Aristotle, Nic. Ethics, 1094a10–16, a27-b8, 1141b24–25; Aristotle, Politics, 1260a18–19. 12 Jacques Maritain, Integral Humanism, trans. Joseph Owens (Notre Dame: Uni­ versity of Notre Dame Press, 1973), 127–128; Thomas Osborne, “MacIntyre,

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24 25 26 27 28 29 30 31 32 33 34 35 36

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Thomism and the Contemporary Common Good,” Analyse & Kritik 30 (2008); Thomas Aquinas, Summa Theologiae (henceforth: “ST”), I-II, q.90, a.2, a.3 ad.3; II-II, q.50, a.1; q.58, a.5; q.65, a.2 ad.2; Aristotle, Nic. Ethics, 1094b7–11; Aris­ totle, Politics, 1251a1–1253a39. DRA, 109–111. John Finnis, Natural Law and Natural Rights, 2nd ed. (Oxford: Oxford Univer­ sity Press, 2011), 231–254; Yves Simon, A General Theory of Authority (Notre Dame: University of Notre Dame Press, 1980), 31–50. Alasdair MacIntyre, “Intractable Moral Disagreements,” in Intractable Disputes About the Natural Law: Alasdair MacIntyre and Critics, ed. Lawrence Cunning­ ham (Notre Dame: University of Notre Dame Press, 2009), 23. Cicero, De inventione, II, paras. 160–162; Cicero, De officiis, III, 17, para. 69; Jacques Maritain, Man and the State (Washington, DC: Catholic University of America Press, 1998), 98–99. ST, I-II, q.95, a.2; q.99, a.3 ad.2; II-II, q.57, a.2; Aristotle, Nic. Ethics, V:7, 1134b 18–24; Finnis, Natural Law, 284–289; John Finnis, Aquinas (Oxford: Oxford University Press, 1998), 266–272; Adrian Vermeule, Common Good Constitu­ tionalism (Cambridge: Polity, 2022), 9–11, 43–46. G. E. M. Anscombe, “On the Source of the Authority of the State,” in Ethics, Religion and Politics: Collected Philosophical Papers Volume III (Oxford: Black­ well, 1981), 130. ST, I-II, q.96, a.4. Paolo Carozza, “The Problematic Applicability of Subsidiarity to International Law and Institutions,” American Journal of Jurisprudence 61, no. 1 (2016): 53. Martin Wight, Systems of States (Leicester: Leicester University Press, 1977), chs. 1 and 4. MacIntyre, “Politics”; ECM, 106–110, 124–125, 168–189. Mark D. Retter, “Law as Social Practice: MacIntyre and Legal Theory,” in After Virtue at 40, ed. Tom Angier (Cambridge: Cambridge University Press, 2023); Keith Breen, “The State, Compartmentalization and the Turn to Local Commu­ nity,” The European Legacy 10, no. 5 (2005): 485–501. Osborne, “Contemporary Common Good,” 88–90. Maritain, Man and the State, ch. II; J. L. Brierly, The Law of Nations, 6th ed. (Oxford: Oxford University Press, 1963), 7–16, 45–56. Vermeule, Common Good Constitutionalism, 86–90. Antonio Cassese, Self-Determination of Peoples: A  Legal Reappraisal (Cam­ bridge: Cambridge University Press, 1998); Marc Weller, Escaping the Self-Deter­ mination Trap (Leiden: Martinus Nijhoff, 2008). DRA, 122–128, 158–159. Martin Wight, Power Politics (Leicester: Leicester University Press, 1977), 105. Francisco de Vitoria, De indis et iure belli relectiones, rel. I, sect. III; Francisco Suarez, De legibus ac Deo legislatore, II, ch. XIX, 6–9; Rafael Domingo, The New Global Law (Cambridge: Cambridge University Press, 2010), ch. 3. Charles De Visscher, Theory and Reality in Public International Law (Princeton, NJ: Princeton University Press, 1957), Book II. Ibid., 93–100; Wight, Power Politics, ch. 24. Domingo, New Global Law, chs. 4–5. Hedley Bull, The Anarchical Society: A Study of Order in World Politics (London: Macmillan, 1977), ch. 1. ILC, Report of the International Law Commission on Fragmentation of Interna­ tional Law: Difficulties Arising from the Diversification and Expansion of Inter­ national Law, 2006. UN Doc. A/CN.4/L.682, 189. Mark D. Retter, “Before and After Legal Positivity: Peremptory Norms from Global and Transnational Social Practice,” in Legal Positivism in a Global and

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38 39 40 41 42 43 44

Mark D. Retter Transnational Age, ed. Luca Siliquini-Cinelli (Cham: Springer, 2019); Stephen Hall, “Natural Law, Human Rights, and Jus Cogens,” in Cambridge Handbook of Natural Law and Human Rights. Evan Criddle and Evan Fox-Decent, “A Fiduciary Theory of Jus Cogens,” Yale Journal of International Law 34, no. 2 (2009); Eyal Benvenisti, “Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders,” American Journal of International Law 107, no. 2 (2013). DRA, 160; MacIntyre, “Intractable Moral Disagreements,” 24. DRA, 124–126, 158–159. See, for example, Amitav Acharya, “Global South Reacts to Western Call for Unity against Russia,” Responsible Statecraft, 29 March 2022. President Joe Biden, “Remarks on the United Efforts of the Free World to Support the People of Ukraine,” Warsaw, 26 March 2022. Klaus Schwab and Thierry Malleret, Covid-19: The Great Reset (Geneva: WEF, 2020). See further Pabst, Liberal World Order; Mark D. Retter, Tom Angier, and Iain T. Benson, “The Perennial and Dynamic Relationship between Human Rights and Natural Law,” in Cambridge Handbook of Natural Law and Human Rights. John Mearsheimer, The Great Delusion: Liberal Dreams and International Reali­ ties (New Haven, CT: Yale University Press, 2019); Trine Flockhart and Elena Korosteleva, “War in Ukraine: Putin and the Multi-Order World,” Contemporary Security Policy 43, no. 3 (2022).

References Acharya, Amitav. “Global South Reacts to Western Call for Unity Against Russia.” Responsible Statecraft, 29 March 2022. https://responsiblestatecraft.org/2022/03/ 29/global-south-reacts-to-western-call-for-unity-against-russia/. Allison, Roy. “Russian Revisionism, Legal Discourse and the ‘Rules-Based’ Interna­ tional Order.” In Hybridisation of Political Order and Contemporary Revisionism, ed. Nik Hynek and Vít Střítecký, 46–65. London: Routledge, 2022. Anscombe, G. E. M. Ethics, Religion and Politics: Collected Philosophical Papers Volume III. Oxford: Blackwell, 1981. Aquinas, Thomas. Summa theologiae, ed. Fathers of the English Dominican Province. New York: Benziger Brother, 1947. Aristotle. The Complete Works of Aristotle, ed. J. Barnes. Princeton, NJ: Princeton University Press, 1984. Benvenisti, Eyal. “Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders.” American Journal of International Law 107, no. 2 (2013): 295–333. Biden, President Joe. “Remarks on the United Efforts of the Free World to Support the People of Ukraine,” Warsaw, 26 March 2022. www.whitehouse.gov/briefing­ room/speeches-remarks/2022/03/26/remarks-by-president-biden-on-the-united­ efforts-of-the-free-world-to-support-the-people-of-ukraine/ (last accessed 22 February 2023). Breen, Keith. “The State, Compartmentalization and the Turn to Local Community.” The European Legacy 10, no. 5 (2005): 485–501. Brierly, J. L. The Law of Nations. Oxford: Oxford University Press, 6th ed., 1963. Bull, Hedley. The Anarchical Society: A Study of Order in World Politics. London: MacMillan, 1977.

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Carozza, Paolo. “The Problematic Applicability of Subsidiarity to International Law and Institutions.” American Journal of Jurisprudence 61, no. 1 (2016): 51–67. Cassese, Antonio. Self-Determination of Peoples: A Legal Reappraisal. Cambridge: Cambridge University Press, 1998. Cicero, Marcus Tullius. On Duties (De officiis), trans. and ed. M. T. Griffin and E. M. Atkins. Cambridge: Cambridge University Press, 1991. ———. On Invention (De inventione), trans. and ed. H. M. Hubbell. Cambridge, MA: Harvard University Press, 2014. Criddle, Evan, and Evan Fox-Decent. “A Fiduciary Theory of Jus Cogens.” Yale Jour­ nal of International Law 34, no. 2 (2009): 331–87. de Visscher, Charles. Theory and Reality in Public International Law. Princeton, NJ: Princeton University Press, 1957. de Vitoria, Francisco. De indis et iure belli relectiones, ed. Ernest Nys. Washington, DC: The Carnegie Institution of Washington, 1917. Domingo, Rafael. The New Global Law. Cambridge: Cambridge University Press, 2010. Finnis, John. Aquinas: Moral, Political and Legal Theory. Oxford: Oxford University Press, 1998. ———. Natural Law and Natural Rights. Oxford: Oxford University Press, 2nd ed., 2011. Flockhart, Trine, and Elena Korosteleva. “War in Ukraine: Putin and the Multi-Order World.” Contemporary Security Policy 43, no. 3 (2022): 466–81. Green, James, Christian Henderson, and Tom Ruys. “Russia’s Attack on Ukraine and the jus ad bellum.” Journal on the Use of Force and International Law 9, no. 1 (2022): 4–30. Hall, Stephen. “Natural Law, Human Rights, and Jus Cogens.” In The Cambridge Handbook of Natural Law and Human Rights, ed. Tom Angier, Iain T. Benson, and Mark D. Retter, 338–52. Cambridge: Cambridge University Press, 2022. Ikenberry, G. John. A World Safe for Democracy: Liberal Internationalism and the Crises of Global Order. New Haven, CT: Yale University Press, 2020. ILC. 2006. Report of the International Law Commission on Fragmentation of Inter­ national Law: Difficulties Arising from the Diversification and Expansion of Inter­ national Law. UN Doc. A/CN.4/L.682. Geneva: United Nations General Assembly. MacIntyre, Alasdair. “Politics, Philosophy and the Common Good.” In The MacIn­ tyre Reader, ed. Kelvin Knight, 235–52. Oxford: Polity Press, 1998a. ———. “Practical Rationalities as Forms of Social Structure.” In The MacIntyre Reader, ed. Kelvin Knight, 120–35. Cambridge: Polity, 1998b. ———. Dependent Rational Animals. Chicago, IL: Open Court, 1999. ———. After Virtue. Notre Dame: University of Notre Dame Press, 3rd ed., 2007. ———. “Intractable Moral Disagreements.” In Intractable Disputes about the Natu­ ral Law: Alasdair MacIntyre and Critics, ed. Lawrence Cunningham, 1–52. Notre Dame, IN: University of Notre Dame Press, 2009. ———. Ethics in the Conflicts of Modernity. Cambridge: Cambridge University Press, 2016. Maritain, Jacques. Integral Humanism, trans. Joseph Owens. Notre Dame, IN: Uni­ versity of Notre Dame Press, 1973. ———. Man and the State. Washington, DC: Catholic University of America Press, 1998.

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Mearsheimer, John. The Great Delusion: Liberal Dreams and International Realities. New Haven, CT: Yale University Press, 2019. Osborne, Thomas. “MacIntyre, Thomism and the Contemporary Common Good.” Analyse & Kritik 30 (2008): 382–97. Pabst, Adrian. Liberal World Order and Its Discontents: Civilisational States and Cultural Commonwealths. London: Routledge, 2018. Retter, Mark D. “Before and After Legal Positivity: Peremptory Norms from Global and Transnational Social Practice.” In Legal Positivism in a Global and Transna­ tional Age, ed. Luca Siliquini-Cinelli, 179–212. Cham: Springer, 2019. ———. “Common Goods, Group Rights, and Human Rights.” In The Cambridge Handbook of Natural Law and Human Rights, ed. Tom Angier, Iain T. Benson, and Mark D. Retter, 291–307. Cambridge: Cambridge University Press, 2022. ———. “Law as Social Practice: MacIntyre and Legal Theory.” In After Virtue at 40, ed. Tom Angier. Cambridge: Cambridge University Press, 2023. ———, Tom Angier, and Iain T. Benson, “The Perennial and Dynamic Relationship between Human Rights and Natural Law.” In The Cambridge Handbook of Natu­ ral Law and Human Rights, ed. Tom Angier, Iain T. Benson, and Mark D Retter, 3–28. Cambridge: Cambridge University Press, 2022. Scholz, Chancellor Olaf. “Policy Statement (Zeitenwende Speech),” Berlin, 27 Febru­ ary 2022. www.bundesregierung.de/breg-en/news/policy-statement-by-olaf-scholz­ chancellor-of-the-federal-republic-of-germany-and-member-of-the-german-bundestag­ 27-february-2022-in-berlin-2008378 (last accessed 1 March 2023). Schwab, Klaus, and Thierry Malleret. Covid-19: The Great Reset. Geneva: WEF, 2020. Simon, Yves. A General Theory of Authority. Notre Dame, IN: University of Notre Dame Press, 1980. Sørensen, Georg. A Liberal World Order in Crisis: Choosing between Imposition and Restraint. New York: Cornell University Press, 2011. Suarez, Francisco. Selections from Three Works, ed. Thomas Pink. Indianapolis, IN: Liberty Fund, 2015. Tsygankov, Andrei. Russian Realism: Defending “Derzhava” in International Rela­ tions. London: Routledge, 2022. Vermeule, Adrian. Common Good Constitutionalism. Cambridge: Polity, 2022. Weller, Marc. Escaping the Self-Determination Trap. Leiden: Martinus Nijhoff, 2008. ———. “Ukraine—The New Normal?.” New Law Journal, no. 7969 (4 March 2022). www.newlawjournal.co.uk/content/ukraine-how-the-new-normal-came-about Wight, Martin. Systems of States. Leicester: Leicester University Press, 1977.

4

Contractual obligation and the good Beyond classical liberalism Stephen Hall

Preamble In the course of addressing advice to young laymen considering a future career in law, the eminent legal historian A.W.B. Simpson observed that the modern legal academy and legal profession continue to draw their basic stock of ideas from the nineteenth century and remarked that “our legal ideology is Victorian.”1 Among the most basic elements in any legal system is the idea of obli­ gation, which is generally understood to mean conduct owed (i.e., due in justice) by a person to one or more other ascertained persons. Promissory obligation is conduct owed as a result of a promise having been made, and contractual obligation is promissory obligation which the law will enforce. The classical liberalism of the Victorian era affected jurisprudence in numerous ways. Conspicuous among these impacts was a narrowed under­ standing of the nature of contractual obligation. The Victorian era in England was and remains our archetype of classi­ cal liberalism, a period in which individual freedom was a motif of society, politics, economics, and law. The nineteenth century was widely conceptual­ ized, by the Victorians themselves, through a heuristic of contract. At the same time, the Victorians developed a formal attachment to the “will theory” of contract. According to this theory, contractual obligation is the product entirely of the human will—either the will of the contracting parties or the will of the political sovereign. The emphasis placed on will by Victorian juris­ prudence can be partly explained as a reaction against the Enlightenment’s discrediting misuse, for political purposes, of a rootless and distorted version of practical reason. The will theory is not without explanatory force and remains influential to this day, but it fails to provide a complete explanation for contractual obli­ gation. Will is a necessary, but insufficient, source of obligation. For a more complete account of contractual obligation, one must look to the practical reason of the natural law as it was more comprehensively known in the clas­ sical, scholastic, and Renaissance traditions.

DOI: 10.4324/9781032702766-6

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With this recovered knowledge, we can see that the human person pos­ sesses an ultimate purpose, which is to attain his highest good of full human flourishing. Because we are innately social beings, we cannot achieve our highest good without the cooperative action of others. It is this necessity of cooperative action in support of reasonable goals or projects that is the true source of all obligation. Promise-making is prominent among the social practices we have devel­ oped to secure cooperative action in support of our reasonable goals or pro­ jects. Where promise-making promotes such action, engaging in the practice establishes a (private) common good between the parties to the promise. Once the promisee has placed reliance on a promise (including by accepting the promise), the promisor is obliged in practical reason (i.e., morally) not to break the promise, thereby (i)  wasting the promisee’s limited resources and impeding the promisee’s attainment of the good(s) at which the promise aimed, and/or (ii) damaging the common good of the parties by destroying, diminishing, or aborting the relationship of trust between them, which rela­ tionship serves as the basis for future cooperative action. There is also a (wider) common good of the political community in the practice of promise-making; an individual person will typically act most effectively for the common good of the political community, not by assessing the requirements of that common good, but by meeting his personal obliga­ tions (including his promissory obligations) to ascertained persons. As the purpose of law is to preserve or enhance the common good of the political community, the law thus has an important role in preserving or enhancing the practice of promise-making. That role is played by the law of contract which, by providing for legal enforcement of certain promises, strengthens the trust that promises will be honored in circumstances where trust might otherwise be weak or absent. Such trust is necessary in order for the practice of promise-making to work effectively. 1 Contract as Victorian heuristic Given that Victorian liberalism was oriented strongly toward the freedom of the individual, it is not altogether surprising that contract provided an impor­ tant conceptual lens by which the Victorians interpreted their new social and economic arrangements. Sir  Henry Sumner  Maine, for instance, famously maintained that in the great liberation of individuals from static social rela­ tions based on birth and heredity to a new world of social mobility, “the movement of the progressive societies has hitherto been a movement from Status to Contract.”2 The Victorians’ social and economic order was thus widely conceived as resting on foundations that were substantially the product of contractual relations. As A.H.  Manchester pointedly remarks of Victorian England, “Individual liberty was the watchword: contract was its legal spearhead.”3

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2 Victorian will theory Contract was, however, more than a heuristic by which the Victorians inter­ preted their social and economic arrangements. There was also a distinctively juridical dimension to the liberalism of the Victorian era. Indeed, the Victo­ rian era is now widely regarded as the classical age not only of liberalism, but of the common law generally, and of contract law in particular. Indeed, law students in common law jurisdictions still spend a large portion of their time scrutinizing reports of nineteenth-century contract cases composed in the elaborate and densely crafted prose of the Victorian judge. The contract jurisprudence of this new era rested on the two broad and interconnected metaprinciples of “freedom of contract” and “sanctity of contract.” These twin metaprinciples were not only juridical in character, but also of ideological importance to the jurisprudence of the Victorian era. Their centrality was succinctly articulated by Sir George Jessel in his judicial capacity as Master of the Rolls4: [I]f there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice. Concomitantly and overlapping with the elevation of freedom and sanctity of contract, Victorian law courts and jurists exhibited an affinity for the “will theory” of contract. According to the most influential variant of this theory, contractual obligations are created and self-imposed by an act of the parties’ wills when they merge into a single will upon the conclusion of an agree­ ment supported by consideration. This theory became firmly established in the common law by the middle of the nineteenth century, and found perhaps its clearest judicial formulation by the Vice-Chancellor of the Court of Chan­ cery, Sir Richard Kindersley, who said that a contract is5 an agreement upon sufficient consideration to do or not do a particular act. . . . [W]hen both parties will the same thing, and each communi­ cates his will to the other, with a mutual engagement to carry it into effect, then .  .  . an agreement or contract between the two is consti­ tuted. Now this is not a mere theoretical disquisition, but a statement of sound practical principles of universal law, and of the law of England in particular. At the level of jurisprudential theory, therefore, Victorian law courts regarded contracts as the products of the parties’ “utmost liberty” of will in reaching any agreement that is supported by consideration.

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Notwithstanding Kindersley’s assertion that the will theory was deeply rooted in both the common law and “universal law,” it was in truth a relative novelty. Prior to the early modern paradigm shift in the common law from the partly executed/performed agreement (supported by medieval quid pro quo) to the wholly executory agreement (supported by modern considera­ tion), a legal obligation in justice was understood to result from the promis­ ee’s (executed or performed) reliance on the promisor’s undertaking. In other words, prior to the paradigm shift in English contract law, the promisee must have actually done or given something in exchange for the promisor’s under­ taking. But where was the promisee’s reliance in a wholly unperformed agree­ ment? How could a mere exchange of promises/undertakings, without any performance by either party, per se generate an obligation? Patrick Atiyah synopsized the answers to these questions as ventured by some of the Victorian era’s leading jurists: If liabilities were now to arise from the mere fact of agreement, or an exchange of promises, and not as a result of anything the parties actu­ ally did [in reliance on each other’s promises], it was easy to deduce that it was the mere will of the parties which created the obligations.6 In the absence of an alternative explanation that was plausible to a Victorian jurist, the shared will of the parties was now the only possible source of con­ tractual obligation, and must therefore be that source. The Victorian era’s ideological and jurisprudential emphasis on will extended beyond contractual obligations. Victorian England provided the soil in which the classical legal positivism of Jeremy Bentham and his protégé John Austin took root and flourished. As professor of Jurisprudence and the Law of Nations at the newly founded University of London, Austin published a series of lectures as The Province of Jurisprudence Determined (1832). Austin taught that the “matter of jurisprudence is positive law: law simply and strictly so called: or law set by political superiors to political inferiors.”7 A law simply and strictly so called is a “command which obliges a person or persons.”8 In Austin’s command theory of law, the sovereign lawmaker’s will is the sole determinant of legal obligation and legal duty. It is difficult to exaggerate the impact that Austin’s legal positivism had on Victorian jurisprudence, especially in the realm of public law. Toward the close of the nineteenth century, T.A. Walker described Austin’s great work as the “starting point of all English dissertations on legal science” and observed ruefully that “the language of the Victorian English Law School is the lan­ guage of the Province of Jurisprudence Determined, and each jurist of the mode talks Austinese.”9 According to Austin, even contracts derived their legally obligatory force from the positive law, and thus from the sovereign’s commanded will10: Every convention [i.e agreement] which obliges legally (or every con­ tract properly so called) derives its legal efficacy from a positive law.

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Speaking exactly, it is not the convention that obliges legally, or that engenders the legal duty: but the law obliges legally, or engenders the legal duty, through the convention. In other words, the positive law annexes the duty to the convention. Notwithstanding the dominance of Austin’s positivism in many branches of English jurisprudence, especially public law, his command variety of the will theory of contractual obligation exerted less attraction to Victorian jurists than the alternative consensus variety. Thus, Victorian England was firmly under the sway of the will theory of contractual obligation. However, this theory could be articulated in two forms. There was, first, a dominant consensual form in which the concurrence of the parties’ wills was effective to generate a legally enforceable obligation. According to Atiyah, this variety of the theory was a “somewhat mystical idea” by which “an obligation could be created by a communion of wills, an act of joint, if purely mental procreation.”11 There was also a less influential command (or an Austinian) variant of the theory by which the concurrence of the parties’ wills created, in effect, a material source of obligation (i.e., a source that identified the content of the obligation). On the basis of the com­ mand variant of the theory, the formal source of obligation (i.e., the source that rendered the material obligation legally enforceable) was an act of will commanded by the sovereign lawmaker through its organs and agencies such as the law courts. It can be appreciated that the command variant of the will theory was perhaps somewhat less mystical than the voluntarist form only inasmuch as the legal obligation was believed to result from (the emotion of fear generated by) the sovereign’s threat of enforcement by inflicting “evil or pain” on the delinquent for non-compliance.12 Although the two variants of the will theory differed in the identity of the persons whose wills created a legally enforceable contractual obligation, they were united in their formal rejection of any need for jurists to look behind the curtain of the will in order to locate a jurisprudential source or foundation of the obligation. Austin, in particular, was explicit that moral­ ity (whether as man-made “positive morality” or “morality as it would be, if it conformed to the law of God”) lay outside the scope of jurisprudence altogether.13 This formal expulsion of moral and ethical considerations (i.e., practi­ cal reason) from the realm of jurisprudence was a novelty of the self-con­ sciously moralistic Victorian age. What can explain this apparent paradox? An answer, at least in substantial part, can be found in the intellectual history of the two preceding centuries. 3 Reason and the enlightenment The Enlightenment of the seventeenth and eighteenth centuries had promised a general liberation from ignorance, superstition, and material backwardness by unleashing the power of pure reason upon the world.

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In so far as “reason” was understood to mean simply theoretical reason (i.e., reason that provides, in the natural world, empirical understandings of the past or present, or empirical predictions of the future), the Enlight­ enment’s promise was abundantly fulfilled. The Enlightenment’s scientific revolution bore its earliest economic and social fruits in the transformative industrialization of Victorian England, and that era’s impressive progress in technological innovation, material abundance, and human life expectancy. The benefits of theoretical reason were solid and tangible. Whereas humans share theoretical reason with the animals (“Am I close enough to kill my prey?”), practical reason is, among the earth’s creatures, uniquely human. Practical reason is not simply “thought.” This variety of reason is “practical” because it concerns our practice or conduct as free per­ sons in choosing right from wrong (πρᾶξις [praxis]). It allows us to discern our highest good or ultimate purpose, and what we need to do and avoid doing in order to attain that good and achieve that purpose.14 Practical rea­ son is thus concerned with identifying actions and goals that are right or wrong, and not merely actions and goals that are empirically possible/likely or impossible/unlikely. More specifically, practical reason concerns the nor­ mativity that makes our practice right, good, or just (“would it be right to kill my prey?”). Practical reason is thus a term denoting that which is more popularly known as conscience; animals don’t have a conscience, because they don’t have practical reason. Only humans think in terms of “should” and “ought,” and this is why only humans make laws. If an action or a goal is not possible, it is irrational; if it is not right, good or just, it is quite literally unreasonable (or unconscionable). In order to attain the same level of respect that now attached to scientists and technologists, those Victorians who labored in other fields of intellec­ tual endeavor felt increasingly impelled to transform their areas of inquiry into a “proper” science, that is, a discipline in the image and likeness of the natural sciences. Jurisprudence was prominent among these fields. In Austin’s positivist overhaul of jurisprudence, the road to scientific respectability ran through the will, which was imagined to be an object that could be observed and analyzed solely by cold, hard theoretical reason. Austin’s apparent success in having practical reason banished from the realm of jurisprudence was also greatly assisted by a widespread reaction against the Enlightenment’s misuse, for political purposes, of a rootless and distorted version of practical reason. This was particularly true of Enlighten­ ment theorists in France and elsewhere in continental Europe. The continental Enlightenment’s image of the human person was highly individualistic and rested on various conceptions of a social contract made in an atomized state of nature. With the loss of a teleology of human nature, continental Enlightenment theorists turned their backs on the natural law (ius naturale) of the classical, scholastic, and Renaissance traditions,15 and embraced in its stead a Newtonian-inspired “Law of Nature.” Montesquieu,

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in particular, influentially sought to apply the Newtonian reason of the physi­ cal world to the workings of the social world.16 Practical reason itself became increasingly distorted and directionless as the Enlightenment embraced a doctrine of the autonomy of human reason which, in conjunction with the rationalism of this school, led straight to an extravagance of syllogistic reasoning, of deductively constructed systems that served to regulate all legal institutions down to the minutest detail.17 Thus, in the two centuries preceding the Victorian era, theoretical reason was evidently successful while practical reason was apparently discredited. This confluence of developments accommodated the emergence and consoli­ dation of a nineteenth-century “scientific” jurisprudence in which the role of practical reason was formally minimized, while the role of will (now seemingly detached from practical reason) was magnified. In the realm of contract law, this manifested in the will theory according to which obligation was the result simply of the parties’ consensual will or the sovereign’s commanded will. The will theory, most especially in its consensual variant, remains influen­ tial to this day: The modern lawyer, still under the influence of the nineteenth-century heritage, sees little or no difference between saying that parties volun­ tarily enter into a transaction to which the law attributes certain [oblig­ atory] consequences, and saying that the consequences themselves are the creation of the will of the parties.18 The classical Victorian theory is not without explanatory force. It fails, how­ ever, to provide a complete explanation for promissory and contractual obli­ gation. How and why does a bare act of human will “oblige” anyone to do anything? For a more comprehensive account of promissory and contractual obligation, one must look to the practical reason of the natural law as it was understood in the classical, scholastic, and Renaissance traditions. 4 Human purpose Numerous complex and interlocking factors—including the Protestant Ref­ ormation, a decline in Renaissance humanism, and the emergence of a deism inspired by Newtonian physics—had caused the jurisprudence of the Enlight­ enment to become substantially detached from the classical and scholastic traditions, and resultant early modern concerns with the unchanging nature and agency of the human person. Samuel von Pufendorf, the Enlightenment jurist perhaps most influential in the rise of the new “Law of Nature,” was indeed “largely ignorant of, and certainly contemptuous of, Aristotle and the scholastics.”19

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In contrast to the Enlightenment’s substantially atomistic conception of the human person, the older traditions of the natural law conceived of man as an intrinsically social being20 who is immutably orientated by his nature (φῠ́σῐς [physis]/natura) toward his ultimate truth or highest good (αλήθεια [alḗtheia]/summum bonum, finis bonorum).21 The natural law is teleological. Everything, including every human action, intention, and art, has a purpose, an end, a goal, or a point (τέλος [telos]/finis]).22 A thing’s purpose provides it with its meaning, and the attainment or manifestation of a thing’s purpose is its good. The purpose of medicine is health, that of shipbuilding is a ship, and that of economics is wealth.23 We say that something is “good” accord­ ing to how well it fulfils its purpose: The purpose of a house is to provide shelter and comfort, and it is a “good house” to the extent that this purpose is achieved. The human person is no exception to this principle of teleology. Accord­ ing to the natural law, the purpose of human life is the attainment of a state almost always translated into English as “happiness” (εὐδαιμονία [eudaimonia]/beatitudo, felicitas).24 The usual modern understanding of the English translation does not, however, capture the full meaning of the Greek and Latin terms denoting the purpose of human life. In the natural law, that purpose is not an emotion or a feeling. Rather, it means the activi­ ties of thriving, living a complete life, or more accurately, achieving all of one’s potentials, being all that one can be. In this tradition, then, the highest truth or ultimate purpose of human life is human flourishing. This purpose is achieved by marshalling our talents, inclinations, and resources in order to live the most complete life we can build for ourselves in the brief time avail­ able to us. It is the achievement of a life in abundance. Our purpose or highest good of full human flourishing is attained by realiz­ ing or participating, over the course of our entire lives, in all the basic human goods. Numerous broadly similar accounts of these basic goods have been advanced since classical times, including by John Finnis who has identified them as Life, Knowledge, Play, Aesthetic Experience, Sociability (or Friend­ ship), Religion, and Freedom in Practical Reasonableness.25 These goods are “basic” because they are not instrumental. They are not secondary goods (such as money, a diploma, a job, a house, a car, clothes, food, etc.) which we acquire and employ in order to achieve our goals; they are the goals which, when realized or participated in, gradually ripen into full human flourishing. The basic goods are not means to ends; taken together, they are the ends, the purpose of human life. They are not secondary things we use in our life; they are the primary things that make life worth living and that give our life meaning. They are the things that life is for. In other words, the basic human goods are the things that bring us joy (or, perhaps less accurately in modern usage, “happiness”). We identify our ultimate purpose and highest good, and the ways and means of effectively attaining them, by the skillful exercise of our practi­ cal reason. Because we are by our nature immutably orientated toward our

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highest good, every exercise of our practical reason is oriented toward our realization or participation in one or more of the basic goods. Unless we are actually insane, we cannot act for any other purpose; that is simply how our operating system is set up. Moral problems arise not because we fail to pursue a basic good, but because we fail to pursue it reasonably, that is, in accordance with the requirements of practical reason. For instance, a fraud­ ster acquires money in order to further his participation in one or more of the basic human goods (Life, Play, etc.), but he does so in a way that does nothing but damage the prospects of his victim similarly to participate. Just as we can say that an activity or a thing (e.g., medicine or a house) is good to the extent that it fulfills its purpose, we can say that a person has lived a good life to the extent that he has attained his ultimate purpose of human flourishing by realizing or participating in all the basic human goods. Because man is alone among the earth’s creatures in possessing practical rea­ son, he is uniquely free to embrace his nature to attain his highest good, or to turn his back on it; there has never been a saintly pig or a demonic cow, because animals lack practical reason and the freedom it gives to embrace or reject their nature. Man truly is free to do as he ought. 5 Community, friendship, and promise-making Because we are innately social beings, we are made for community and friendship. We cannot realize or participate in the array of human goods without the assistance, cooperation, or coordination of others. We need each other in order to achieve our ultimate good of human flourishing. In order to flourish, a doctor needs his patients as his patients need him, a teacher needs his students as his students need him, an employer needs his employees as his employees need him, and parents need their child as their child needs them (and as the parents need each other). Even when we appear to be participat­ ing alone in a basic good—such as in the solitary enjoyment of a walk or a sunset—the circumstances that have given us the leisure time and means to do so are the result of countless prior (and perhaps continuing) acts of assis­ tance, cooperation, and coordination by others. It is this necessity in practical reason (i.e., in conscience) of assistive, coop­ erative, or coordinated action within a framework of community and friend­ ship that is the true source of all obligation.26 Because we cannot realize or participate in the human goods without the assistance, cooperation, or coordination of others, we have developed social and cultural practices to facilitate such arrangements. Many of these prac­ tices (customs, rituals, courtesies, etc.) change with time, place, and culture. Prominent among these practices is the making of promises. Although the modes and particulars of making promises may be histori­ cally and culturally variable, the core elements of the practice are remark­ ably stable, consistent, and universal (so much so as to strongly suggest that promise-making is innate to us). The core of the practice may be formulated

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as follows: a promise is a verbal sign, uttered by the promisor and commu­ nicated to the promisee, of the promisor’s willingness to act (or refrain from acting) in a certain way. The practice of promise-making will often aim directly at participation in the basic good of friendship or sociability (e.g., I promise to make you a birthday cake). As it is always unreasonable (i.e., immoral) to choose directly against a basic good, and as promise-breaking damages the trust required for friendship, it is unreasonable to choose to break one’s promise absent rea­ sonably extenuating circumstances (e.g., frustration, rendering performance impossible; or rebus sic stantibus, a fundamental change of circumstances that removes an essential basis for the promise or that radically transforms the extent of the promisor’s obligations). However, it does not necessarily fol­ low from an act of promise-breaking that an obligation has been breached. In order to create a promissory obligation, two conditions must be satis­ fied. First, the promise must be reasonable, i.e., it must be for the purpose of assisting the promisor and/or the promisee attain a reasonable goal by acquiring, preserving, or enhancing a secondary human good or participating in a basic human good. Second, the promise must be uttered in circumstances where the promisee reasonably understands that the promisor intends to cre­ ate an obligation owed to the promisee, either (i) upon express acceptance of the promise by the promisee, or (ii)  when the promisee has impliedly accepted the promise by acting (or refraining from acting) in reasonable reli­ ance on the promise (i.e., in a way that the promisor could reasonably foresee the promisee would conduct herself as a result of the promise having been made), or (iii) by the reasonable and foreseeable encouragement of the prom­ isee’s hope in the promisor’s friendship and trustworthiness. Because life is short and our resources are limited, and because we are required in practical reason to attain our human flourishing in community and friendship with others, we are also required in practical reason not to act in ways that waste our time or other limited resources thereby diminishing our prospects of attaining or participating in the various goods: “One must not waste one’s opportunities by using inefficient methods. One’s actions should be judged by their effectiveness, by their fitness for their purpose, by their utility, their consequences.”27 Finnis correctly remarks that the social practice of promise-making “pro­ vides an effective means of maintaining co-operation, once initiated, over the span of time necessary for the fulfilment of any human project.”28 By engag­ ing in this social practice, the parties (promisor and promisee) thus establish as between themselves, and in the exercise of their own freedom and initia­ tive, a (private) common good, that is, a framework of anticipated action to acquire, realize, or participate in a (basic or secondary) human good for the ultimate purpose of attaining their highest good. The parties’ common good consists, moreover, not only in the (prospect of) attainment of the promise’s object, but also in the trust affirmed or estab­ lished by the very act of entering into the social practice of promise-making.

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Charles Fried aptly analogizes promise-breaking to lying: “In both speech and promising there is an invitation to the other to trust, to make himself vulnerable; the liar and the promise-breaker then abuse that trust.”29 A fail­ ure by the promisor to honor his undertaking not only reduces the prom­ isee’s opportunity for attaining the good of the promise’s object (whether of great value or trivial), but also damages the common good he shares with the promisee by destroying, diminishing, or aborting their relationship of trust necessary for the practice of promise-making to function, which in turn further diminishes both parties’ prospects of attaining goods in the future. Indeed, trust is not only an aspect of the parties’ common good, but also a facet of the basic good of friendship or sociability, and therefore worth pre­ serving or enhancing for its own sake. That an obligation is created by the social practice of promise-making implies that the promisor will or should, as a component or incident of the social practice, accept the justice of the promisee’s reproaches and criti­ cisms (and possibly her claims for reparation) in the event that the promisor dishonors his undertaking. The justice of the promisee’s reproaches results from her lost or reduced opportunity to realize or participate in one or more (basic or secondary) human goods. Once the promisee has placed reliance on a promise (including by accepting the promise and/or by investing hope in the promisor’s friendship and trustworthiness), the promisor is obliged in practical reason (i.e., morally) not to break his promise, thereby (i) wast­ ing the promisee’s limited resources and impeding her attainment of the good(s) at which the promise aimed, and/or (ii) damaging the common good of the parties by destroying, diminishing or aborting the relationship of trust between them, which relationship serves as the basis for future cooperative action. 6 Contract and the common good It is not only the parties to a promise who share a common good in the social practice of promise-making. As we have seen, man is an innately social being who cannot achieve his highest good without the assistive, cooperative, or coordinated action of others in a community. Consequently, we are made for community and friendship and the achievement by each of us of our high­ est good cannot be sequestered from the same ultimate purpose of others in that community. Just as there is a private common good of the parties to a promise, there is a wider common good of the political community at large in fostering trust in a social practice that greatly assists the community’s mem­ bers to attain their highest good. Moreover, the wider common good is so extensive and complex that it is usually beyond the effective capacity of an individual person to engage with directly. Rather, an individual person will typically act most effectively in pre­ serving or enhancing the wider common good, not by practicing something akin to the “telescopic philanthropy” of a Mrs.  Jellyby,30 but by meeting

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his personal obligations (including his promissory obligations) to ascertained persons. According to Finnis, the wider common good of the political community is a set of conditions which enables the members of a community to attain for themselves reasonable objectives, or to realize reasonably for them­ selves the value(s), for the sake of which they have reason to collaborate with each other (positively and/or negatively) in a community.31 In a political community, the wider common good is the “securing of a whole ensemble of material and other conditions that tend to favour the realization, by each individual in the community, of his or her personal development.”32 This definition is certainly broad enough to include the customs, traditions, and social practices of the people themselves where they promote collabora­ tion that assists members of the community to acquire, realize, or participate in the various (basic and secondary) goods. Jacques Maritain similarly postu­ lated that the wider common good extends beyond the “collection of public commodities and services,” to include the sum or sociological integration of all the civic conscience, political vir­ tues and sense of right or liberty, of all the activity, material prosperity and spiritual riches, of unconsciously operative hereditary wisdom, of moral rectitude, justice, friendship, happiness, virtue and heroism in the individual lives of its members.33 That the wider common good embraces the customs, traditions, and social practices of the people themselves was also strongly indicated by Michael Novak, for whom the wider common good was not a “vision ‘aimed at’ or ‘intended’ or imposed by a particular set of rulers,” but “something achieved through the participation of all citizens.”34 These approaches share an understanding of the wider common good as the whole complex of arrangements or conditions—material, institutional, cultural, and spiritual—within which each person may participate in the free exercise of his practical reason in order to construct a good life for himself and those for whom he has care, in a community and with its assistance. The wider common good is, thus, a framework for assistive, cooperative, or coordinated action within which a political community’s members may freely draw closer to their highest good and ultimate purpose of full human flourishing. This framework includes the community’s laws. Indeed, according to St Thomas Aquinas, a law is “nothing but an ordinance of [practical] rea­ son made for the common good.”35 These laws will better serve the cause of human flourishing to the extent that they successfully preserve, enhance, or promote practices and patterns of assistive, cooperative, or coordinated

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action among the community’s members freely directed toward the attain­ ment of their highest good. These patterns and practices are themselves part of the wider common good of a community, as they provide a familiar tem­ plate for the community’s members to act effectively in the attainment of their reasonable goals. Prominent among these patterns and practices of action is, as we have seen, the social practice of promise-making. As the law is made for the common good, and as the practice of promise-making is part of the common good, the law has a role in preserving, enhancing, and promoting that practice. In order for the social practice of promise-making to function, the prom­ isee must trust that the promisor will honor his undertaking. This will be especially true where the parties make an agreement by an exchange of prom­ ises, and the agreement is that performance will be non-simultaneous (e.g., X promises to perform a service, in return for which Y promises to pay upon completion of X’s performance). Such an agreement is unlikely to be made (and the parties’ common good therefore unlikely to be served) where the party promising the earlier performance does not trust that the other party will honor his promise when his time for performance arrives. Where the parties are united by bonds of affection (whether familial or social) and the subject matter of the promise-making is of relatively small value, the element of trust will generally be present, and the practice of prom­ ise-making can fulfill its purpose of serving the common good without need of the law’s support. However, where such bonds do not exist, or where the subject matter of the promise-making is of large value, the element of trust between the parties is generally less assured. Indeed, where the parties have no relationship, there will generally be no basis for trust (unless, perhaps, the promisor enjoys a reputation for trustworthiness or a trusted third party has provided credible assurances of the promisor’s trustworthiness). One would be highly restricted in the means of pursuing reasonable goals were one confined to the practice of promise-making only with others whom one could trust on the basis of familial or social affection: How many of the things that we reasonably want or need could be effectively provided exclu­ sively by our circle of family and friends? The larger the population and the more complex and developed the economy of a political community, the more likely it will be that parties to the social practice of promise-making will have had little or no prior relationship with each other. In these circum­ stances, the common good requires some alternative basis upon which prom­ isees can trust that promises will be honored. One important alternative basis that virtually all political communities have developed is a law of contract, by which courts and other institutions of justice are available to enforce certain promises. Where there is an effective law of contract, the practice of promise-making takes place in the shadow of that law, thereby providing a (further) foundation of trust that the promises to which that law applies will be honored.36

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No law of contract operates to enforce all promises. This is because there are many promises for which the wider common good does not require legal enforcement, and some others that would damage the wider common good were they to be legally enforced. For instance, we have already noted that promises made between family members and friends are less in need of the reinforcement of trust that legal enforcement can provide: in the Anglocommonwealth common law, for instance, there exists a “presumption in fact” (i.e., a presumption rebuttable by evidence to the contrary) that fam­ ily members and social friends intend that promises made to each other are not binding in law.37 The wider common good might also require that other promises not be legally enforced. All legal systems will refuse, for instance, to enforce promises to commit or promote crimes,38 and most will refuse to enforce a promise that tends to damage public morals.39 Coda Simpson was essentially correct in his observation that the basic stock of ideas and ideology of the modern legal academy and legal profession is Victo­ rian. In the realm of contract law, the twin Victorian juridical metaprinciples of freedom of contract and sanctity of contract remain doctrinally influential more than a century after the close of the Victorian era, as does their off­ spring in the will theory of contractual obligation. On the basis of the consensus version of the will theory, the law enforces (certain) promises because the parties to the promise have created an obliga­ tion by a meeting of their wills. Conversely, on the basis of the command version of the theory, an obligation exists because the law enforces the promise in accordance with the sovereign’s will. Because liberalism places individual autonomy at the center of all human relations, the consensus version is more influential today (and also in Victorian times) than its com­ mand variant. On either version of the will theory, however, the existence of contractual obligation is essentially a matter of the human will—either the parties’ or the sovereign’s. This Victorian emphasis on the regnancy of the individual will was a good fit for nineteenth-century classical liberalism, with its reverence for theoretical reason and its vision of jurisprudence as a “social science” comprehensible by an application of some version of the scientific method. However, these Victorian innovations provide an incomplete account of con­ tractual obligation. The will is a necessary but insufficient generator of promissory obligation. A naked decision to engage in the practice of promise-making can generate no obligation. The (parties’) act of will must be clothed in practical reason, that is, reason orientated toward the attainment of the parties’ highest good by supporting the achievement of reasonable goals (including participation in reasonable projects) and/or the common good of the parties. The law enforces (but does not create) an obligation where the common good of the

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political community is served; this, too, is an exercise of practical reason and not simply of the (parties’ or sovereign’s) will. A contract is not, as Victorian jurisprudence sometimes tended to portray it, a teleologically empty exercise of will. Rather, contractual obligation is the product of will directed by practical reason toward the attainment of reasonable goals, in circumstances where the common good of the political community is served by legal enforcement. The parties are not pushed or impelled by an act of will to engage in the practice of promise-making. Rather, they are pulled or attracted by the good(s) that are identified by their practical reason and kept before their eyes in the process of both making and performing their promises. This mainte­ nance of vision, which Aquinas refers to as imperium (legitimate power of command), arises from and belongs to practical reason.40 Therefore, practi­ cal reason and will are partners in the generation of promissory obligation (and ultimately of contractual obligation), with practical reason in the role of senior and managing partner. Notes 1 AWB Simpson, Invitation to Law (Oxford: Blackwell, 1988), 207. 2 Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (John Murray 1861), 170 (emphasis in original). 3 A. H. Manchester, A Modern Legal History of England and Wales 1750–1950 (London: Butterworths, 1980), 267. 4 Printing & Numerical Registering Co v Sampson (1875) LR 19 Eq 462, 465; see also, Manchester, Sheffield and Lincolnshire Railway Co v Brown (1883) 8 App Cas 703, 716–720 (Lord Bramwell), and Salt v Marquess of Northampton [1892] AC 1, 18–19 (Lord Bramwell). 5 Haynes v Haynes (1861) 1 Dr & Sm 426, 433, (1861) 62 ER 442, 445. 6 P. S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: OUP, 1979), 406. 7 John Austin, The Province of Jurisprudence Determined (1832: CUP, 1995, Wil­ fred E. Rumble (ed.)), 18.

8 Ibid, 29.

9 T. A. Walker, The Science of International Law (CJ Clay and Sons, 1893), 4.

10 Austin (n 7) 258.

11 Atiyah (n 6) 407.

12 Austin (n 7) 30.

13 Ibid, 18–20 (emphasis in original). This is not to say that Austin regarded issues

of the moral or ethical content of the law as unimportant, or that a law might fail to command our compliance in conscience, but only that such questions did not reside within the realm of jurisprudence. 14 See the next section. 15 See, for example, Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (Indianapolis, IN: Liberty 1998; translation by Thomas R. Hanley of Die ewige Wiederkehr des Naturrechts (Leipzig: Verlag Jakob Hegner, 1936)), 27–29, 222. 16 Charles Louis de Secondat, Baron de La Brède et de Montesquieu (published anonymously), De l‘esprit des loix (Barrillot & Fils 1748). 17 Rommen (n 15) 83.

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18 Atiyah (n 6) 406. 19 E. B. F. Midgley, The Natural Law Tradition and the Theory of International Relations (New York, NY: Barnes & Noble Books, 1975), 167. Rommen simi­ larly observed that “Pufendorf was well acquainted with scarcely a single Greek or scholastic: Rommen (n 15) 83. 20 Aristotle famously observed that “man is a political [social] animal,” and that outside the community of the polis he is “either a beast or a god.” The Politics, I, ii, 1253a 2, cf. Nicomachean Ethics, 1097b1–19; see also Thomas Aquinas at, among other places, Summa Theologiae, I-II, q 72 a 4c, Scriptum super Libros Sententiarum Petri Lombardiensis, iv, d 26 q 1a 1c. 21 Aristotle, Nicomachean Ethics, 1095a14–1095b13; Thomas Aquinas, Summa Theologiae, I-II, q 90 a 3, q 91 a 3. 22 Aristotle (n 21) I, i, 1095a1–4; Thomas Aquinas, Sententia Libri Ethicorum (Commentaries on Nicomachean Ethics) i 9 n 3 [105]; Aquinas (n 21) I-II, q 14 a 2c, q 90 a 3, q 91 a 3. 23 These examples are Aristotle’s (n 21) I, i, 1094a7–10. 24 Aristotle (n 21) I, vii, 1097b20; c.f. Aquinas (n 22) vi 8 n 17 [1233], (n 21) I-II, q 21 a 2, q 91 a 2 ad 2, II-II, q 47 a 2 ad 2, q 47 a 13c, q 50 a 3 ad 2. 25 John Finnis, Natural Law and Natural Rights, 2nd ed. (Oxford: OUP, 2011), 85–90, 446–448. 26 At least, if one puts aside the possibility that one owes a (perhaps) metaphorical “obligation” to one’s self to advance or preserve one’s own human flourishing. 27 Finnis (n 25) 111. 28 Finnis (n 25) 303. 29 Charles Fried, Contract as Promise (Cambridge, MA: Harvard University Press, 1981), 16. 30 Charles Dickens, Bleak House, Chapter 4 (Bradbury & Evans, 1852–53). 31 Finnis (n 25) 155. 32 Ibid, 154. 33 Jacques Maritain, The Person and the Common Good (South Bend, IN: Univer­ sity of Notre Dame Press, 1966), 52–53. 34 Michael Novak, Free Persons and the Common Good (Madison Books 1989) 90 (emphasis in original). 35 Aquinas (n 21) I–II, q 90 a 4 (emphasis added). 36 See, for example, Anthony J. Bellia Jr, “Promises, Trust and Contract Law,” American Journal of Jurisprudence 47 (2002): 25–40. 37 For example, Balfour v Balfour [1919] 2 KB 571 (promise by husband to pay wife a living allowance, not legally binding); Jones v Padavatton [1969] 1 WLR 328 (promise by mother to make financial and residential provisions for daughter to pursue higher studies, not legally binding); Coward v Motor Insurers Bureau [1963] 1 QB 259 (promise of rides to work by owner of a motorcycle to his work­ mate, not legally binding). 38 For example, Fores v Johnes (1802) 4 Esp 97, (1802) 170 ER 654 (promise to pay for the publication of a criminal libel, not legally enforceable). 39 For example, Pearce v Brooks (1865–66) LR 1 Exch 213 (promise to pay for a carriage which the promisee knew would be used in prostitution, not legally enforceable). 40 Aquinas (n 21) I–II, q 17 a 1; Finnis (n 25) 337–342.

Part II

Public reasonability and justification Contributions in this part aim to explore contemporary issues arising for public reason or public justification, including whether liberal societies are fair in their treatment of the “unreasonable” citizen, whether and how per­ fectionists can legitimately appeal to theories of public reason, and the way in which perfectionist intuitions about political life affect our concepts of public justification.

DOI: 10.4324/9781032702766-7

5

Discursive equality and

public reason

Thomas M. Besch Luojia Professor of Philosophy, Wuhan University Honorary Associate, School of Philosophical and Historical Inquiry, University of Sydney

Introduction For many public reason liberals, it is a requirement of equal respect that relevant moral or political things (e.g., social arrangements, political princi­ ples, or conceptions of justice) be publicly justifiable to relevant people in a manner that allocates to each an equal say, where a person’s use of that say is thought to involve some measure of (qualified) influence on what can or can­ not count as justifiable to her. Yet, it has often been noted, all liberal public justification at the same time excludes in some way: for example, it accords no say, or a lesser say, to some people, such as people it deems unreason­ able. Accordingly, it is an important challenge for public reason liberalism to suitably align its understanding of public justification with the equal respect that allegedly grounds it, if indeed the latter calls for some form of discursive equality. This chapter explores that challenge as it arises in Rawls-type, firstgeneration political liberalism.1 On the reading adopted here, Rawls-type political liberalism (hereafter referred to simply as “political liberalism”) takes conceptions of political justice to depend for their reasonableness on their public justifiability to actual reasonable citizens, where this reflects a commitment to a form of equal respect that requires that these citizens be accorded a justificatory say—or, as I will put this later, to a form of equal “discursive respect.” Sections 2 and 3 put into place tools that help to con­ ceptualize public justification and discursive respect, and that help to iden­ tify how the challenge just referred to arises in political liberalism. On a promising reading, we shall see, public justification here does not deny the unreasonable a justificatory say, but accords them a lesser say: it considers what they would say if they were reasonable. This means that their say is equal in a formal sense, but not also substantively, in terms of its influence in justification, or what I will later call its “discursive purchase.” (I distin­ guish formal from substantive discursive equality and introduce discursive purchase in Section 2; discursive respect is introduced in Section 3; Section 4 then uses these notions to bring out how the challenge at hand arises in politi­ cal liberalism.) DOI: 10.4324/9781032702766-8

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Can political liberalism’s commitment to equal discursive respect cohere with the substantively unequal discursive standing of the unreasonable? As Section 4 suggests, a promising answer is this: equal discursive respect allows for discursive standing that is unequal substantively, in terms of its discursive purchase, provided this standing is not impermissibly unequal in purchase. But when is purchase inequality in public justification permissible? Section 5 gestures at one candidate reply: purchase inequality in public justification is permissible only if all relevant people—including, as it were, reasonable and unreasonable citizens—have discursive standing of enough purchase to be able to avoid relevant bads. As we shall see, an interesting version of this broadly sufficientarian view points toward the conclusion that political lib­ eralism’s commitment to equal discursive respect does not cohere with the substantively unequal standing of the unreasonable. All this heralds that where liberal public justification accords actual people discursive respect and relevantly idealizes at least around its fringes, the per­ missibility of purchase inequality must be a central concern. 1 Public justification: aspects Public reason “aims for public justification.”2 What is public justification? And what role does it have in political liberalism? I first address public jus­ tification in more general terms and put into place some analytic tools that will be needed later. Section 3 then turns to public justification in political liberalism. Public justification is an interpersonal form of justification: roughly, to say that φ is publicly justifiable is to say that φ is justifiable to others by public reasons, that is, reasons that are authoritatively acceptable, or non-rejectable, by relevant people; alternatively, it is to say that φ itself is so acceptable. Refer to this acceptability standard as PJ, Public Justification. Most aspects of PJ are contested, including, but not limited to, the following: (i) PJ’s authoritativeness constraints: What makes acceptances or rejections (or other discursive input) authoritative—for example, their reasonable­ ness, rationality, coherence, or something else? (ii) PJ’s constituency: For example, must φ be justifiable to actual people, or idealized, hypothetical agents, or all or only some relevantly affected people? (iii) PJ’s status in the order of justification: For example, is PJ a constraint on the application of principles of justice to concrete matters of justice, or a standard by which such principles must be justifiable as reasonable or valid? (iv) PJ’s role in social practice: For example, is it a standard to be used in actual reason-giving, or does it structure only imagined, ideal, or hypo­ thetical justifications?

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As there are many different ways to flesh out PJ in these and related respects, there can be many different views of public justification, and hence of public reason. What matters here are ideas of public justification of the sort often advo­ cated in Rawls-type political liberalism, and related forms of moral or politi­ cal constructivism.3 Specifically, what matters here are “actualist,” “robustly public,” and “conception-constraining” ideas of public justification. What does this mean? Public justification is actualist if it includes in its constituency on fully enfranchised footing actual people. Note that public justification can be actu­ alist in this sense while it employs standards that idealize (in at least one sense of “idealize”). That is, by itself, the claim that φ must be justifiable to actual people by reasons that are authoritatively acceptable by them leaves open what idealization value the authoritativeness constraints have, or should have, that public justification employs. Next, public justification is robustly public if φ’s authoritative acceptability is seen as an important condition of, or as (partly) constituting, φ’s moral or political authority—for example, φ’s right­ ness, validity, reasonableness, legitimacy, justness, and so on.4 Robustly pub­ lic justification is constructivist in a weak, justificatory sense. Not least, public justification is conception-constraining where public justifiability is required of conceptions (i.e., theories) of justice—so that their content or their form is constrained by this requirement. Of course, robust public justification need not also be conception-constraining. For example, we might accept that social arrangements are just only if they are publicly justifiable, but reject that con­ ceptions (theories) of justice are reasonable only if they are publicly justifiable. Some more analytic tools need to be put in place before I turn to political liberalism. To start with, public justification is sometimes said to treat the people it fully enfranchises as co-authors of justification, or to allocate them a justificatory say. What kind of discursive standing does a justificatory say involve? Arguably, this is a form of what I call elsewhere “constitutive dis­ cursive standing.”5 That is, if JP, a justification practice, allocates a relevant person, α, constitutive discursive standing in relation to a salient moral or political thing, φ, it does two things. First, JP accords α discursive stand­ ing: JP attaches positive value to φ’s authoritative acceptability by α. Sec­ ond, JP takes there to be a justification-constitutive direction of fit between φ’s acceptability and φ’s authority: in JP, φ depends for its authority on its authoritative acceptability. This contrasts with weaker, “derivative” forms of discursive standing. If JP accords people derivative discursive standing, JP attaches positive value to φ’s acceptability by them, or what JP counts as valuable forms of acceptability, but JP does not take φ to depend for its authority on its acceptability. People here have the discursive standing of clients or recipients of justification, but not as its coauthors. Next, constitutive discursive standing can differ in its discursive pur­ chase.6 What is that? Roughly, the discursive purchase of a justificatory say is

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determined by the influence that having such a say allows an agent to exercise in justification. This is best explained by example. Compare two justification practices, JP1 and JP2, that adopt the same standard of justification, S, but premise S on different authoritativeness constraints: S JP1 JP2

φ is valid (or reasonable) only if φ is justifiable by reasons that relevant people cannot authoritatively reject. β’s rejection of φ is authoritative if and only if β cannot actually accept φ coherently. β’s rejection of φ is authoritative if and only if β would still reject φ when ideally rational.

JP1 and JP2 both attach justificatory weight to authoritative rejections: say, each justification practice counts them as evidence against φ’s validity, or as negatively contributing to φ’s justification status. But for average adults, a justificatory say in JP1 will have more purchase than a justificatory say in JP2. How so? Let Betty, an average adult, reject φ because she cannot actually accept φ coherently. In JP1, her actual rejection reason qualifies her rejection as authoritative, or as a rejection that has justificatory weight. Thus, what JP1 counts as Betty’s authoritative say—or what Betty would say if she met the relevant authoritativeness constraints—will track her actual voice, or what she actually is committed to say, given her actual perspective and deliberation resources. Things are different in JP2. What counts toward justification here is only what ideally rational Betty would say. Thus, actual Betty’s actual rejection reason will not qualify her rejection as authorita­ tive, and what JP2 counts as Betty’s authoritative say might not track her actual voice at all. The idea of discursive purchase helps to account for this difference. Dis­ cursive standing is high or low in discursive purchase depending on the extent in which it allows an agent to bring to bear her actual voice in justification as something that has justificatory weight, or that positively or negatively contributes to the justification status of relevant things. Plainly, a justifica­ tory say in JP1 allows Betty to do so in a way in which a justificatory say in JP2 does not. JP1’s authoritativeness constraints are very low in idealization value relative to her actual perspective and deliberation resources, while JP2’s authoritativeness constraints are very high in idealization value relative to her actual perspective and resources: thus, her actual voice has more traction in JP1 than in JP2. In this sense, her discursive standing is higher in purchase in JP1 than it is in JP2. One upshot: whatever use or value our fully enfranchised inclusion in a practice of public justification can have, much depends on the discursive purchase of our discursive standing in that practice, and hence the ideal­ ization value of the authoritativeness constraints that are at work within

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that practice. Discursive purchase and idealization are interdependent: other things being equal, the higher the idealization value of salient authorita­ tiveness constraints is relative to our actual perspective and deliberation resources, the less discursive purchase will our discursive standing have; and the more discursive purchase our standing is to have, the lower must be the idealization value of these constraints.7 Of course, there is little agreement as to how much salient authoritative­ ness constraints may idealize, or how much discursive purchase the dis­ cursive standing should have that public justification allocates. Much here turns on what the aims of public justification are, or are taken to be. For example, if public justification prioritizes alethic aims, such as the aim to arrive at conclusions that are true, truth-analogue, or objective (in some robust sense of “objective”), it may need to attach justificatory weight only to discursive input that displays very high levels of epistemic merit. This can call for authoritativeness constraints that idealize more, rather than less, relative to the perspectives and deliberation resources of real, epis­ temically imperfect people. But if public justification prioritizes recogni­ tive aims, such as the aim to ensure that citizens be respected as free and equal people, it may need to accord discursive standing that leaves these people readily able to exert some meaningful level of discursive influence in justification—which calls for high-purchase discursive standing, or authori­ tativeness constraints that idealize less, rather than more, relative to these people’s perspectives and deliberation resources. It is contested what aims public justification should prioritize (and it can prioritize other aims than alethic or recognitive aims).8 However, what matters here are only recogni­ tive views of public justification, that is, views that prioritize recognitive aims, and that hence adopt authoritativeness constraints that idealize less, rather than more. A closely related point concerns the idea of discursive equality (I return to this idea in more detail later). Since a justificatory say can vary in discursive purchase, it can be equal (or unequal) in more than one way. It can be equal in a formal sense, as a matter of a consistent application of relevant standards to relevant people, or (also) substantively, as a matter of the influence that an application of these standards to these people leaves them with. One way to capture the point utilizes the idea of discursive purchase9: FE

SE

Formal discursive equality: JP accords α and β discursive standing that is equal formally if and only if it accords α and β discursive stand­ ing of the same overall kind (e.g., constitutive discursive standing) and applies to α and β the same authoritativeness constraints (e.g., authoritative input must be reasonable). Substantive discursive equality: JP accords discursive standing that is equal substantively only if it accords discursive standing that is equal in discursive purchase.

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Against this background, we can define an idea of discursive equity: DE

Discursive equity: JP allocates discursive standing that satisfies discur­ sive equity if and only if the standing that JP allocates satisfies formal and substantive discursive equality.

The differences between FE, SE, and DE, will help later to conceptualize dis­ cursive inequality in political liberalism (see Section 4). Not least, the authoritativeness constraints at work in public justification are sometimes specified only indirectly, through restrictions on the member­ ship in its constituency. For example, rather than expressly specifying that only reasonable discursive input has justificatory weight, a view of public jus­ tification might fully enfranchise only reasonable people. Accordingly, claims like (i) “φ is justified if and only if φ is acceptable by reasonable people” are often understood as indirect versions of claims such as (ii) “φ is justified if and only if φ is reasonably acceptable.” As we will see later, there are differ­ ences between these claims, but I will simplify and assume that claims like (i) may be understood as claims like (ii). 2 Political liberalism, public justification, and equal respect With this I  turn to political liberalism. To situate the matter of discursive equality in political liberalism, the first issue on our itinerary is this: Does Rawls adopt an actualist, robustly public, and conception-constraining idea of public justification? Yes, he does, but this is not obvious. Rawls adopts two ideas of public justification, and one is not actualist, but, say, ideal.10 Ideal public justifica­ tion is part of the model of a well-ordered society of reasonable citizens that is developed at the second stage of Rawls’s conception of political justice, Justice as Fairness (JF). This is a society that is well-regulated by a liberal conception of political justice, that is, JF, where its reasonable citizens accept this conception and carry out public justification on its basis by applying its values to matters of justice that arise in this society—the conception hence serves them as a public basis of justification. Accordingly, ideal public justi­ fication is conception-applying, rather than conception-constraining, and it includes within its constituency only the non-existing, hypothetical reason­ able citizens of that hypothetical society (thus the label, “ideal”). But a more fundamental, actualist idea of public justification is entailed by the political role of general reflective equilibrium. For Rawls, any conception of justice for a Western liberal regime—Rawls’s focus is on the United States of his time—is reasonable in the first place only if, at all levels of generality, it is coherently acceptable by the reasonable citizens of that regime—coher­ ently, that is, or in reflective equilibrium.11 Arguably, this refers to actual reasonable citizens: specifically, Rawls refers to “us,” or “you and me,”12 where the assumption is that he and (some of) his readers are reasonable

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in his sense.13 Thus, his view of general reflective equilibrium articulates a requirement of actualist public justification, and one that is robustly public: coherent acceptability by actual reasonable citizens constitutes, or is a key condition of, the reasonableness of conceptions of political justice. Plainly, this requirement of actualist public justification—or APJ, for short—is conception-constraining. Given Rawls’s focus on the United States of his time, he held that a conception of political justice, to meet APJ, must be political and liberal: it must (i) construe coherent acceptability by reasonable citizens as politically justifying, (ii) contain only the liberal political values of that society’s liberal political tradition, and (iii) regulate that society’s domain of the political only—where these things mark some of the defining commit­ ments of a political liberalism. Thus, APJ constrains the form of justification, the content, and the applicative scope of a reasonable conception of political justice. As such, APJ gives rise to Rawls’s project to present JF as a political liberalism. By the same token, APJ is fundamental in political liberalism’s order of justification, or at least more so than any of the conceptions of polit­ ical justice that depend for their reasonableness on meeting APJ, including JF. Not least, what is the content of Rawls’s politically basic idea of the rea­ sonable—that is, the idea in terms of which the reasonable citizens that APJ refers to are, well, reasonable? Consider: if any of the citizens that APJ rec­ ognizes as reasonable, and includes on fully enfranchised footing within its constituency, was unable to coherently accept the defining commitments of political liberalism, then APJ would rule out, rather than call for, the project of a political liberalism. But Rawls takes it that APJ calls for that project: he presents JF as a political liberalism because he believes that JF, if it can be presented as such a view, can meet APJ. Apparently, then, he supposes that no citizen who is reasonable in APJ’s politically basic sense is unable to coher­ ently accept the defining commitments of political liberalism—views like (i), (ii), or (iii), above. And this invites long-standing concerns about political liberalism’s lack of inclusiveness. Some (epistemically) reasonable citizens in good moral standing will be unable to coherently accept all of political lib­ eralism’s defining commitments. And for political liberalism to not be a non­ starter, these people cannot be included in APJ’s constituency, or at least not on equal, fully enfranchised footing—which ties APJ to a problematic form of discursive inequality (see Sections 4 and 5). A second issue on our itinerary now is the idea of respect. Actualist and robustly public justification in political liberalism models, or expresses, an idea of equal respect for reasonable citizens as free and equal persons—which holds in Rawls’s case, but also, and more openly so, in the case of other firstgeneration political liberals such as Stephen Macedo or Charles Larmore.14 I start with the observation that Rawls adopts two ideas of respect, one that is conception-dependent and one that is, again, conception-constraining.15 The first idea is part of JF’s model of a well-ordered society. The hypotheti­ cal reasonable citizens of JF’s hypothetical well-ordered society respect each other as equals, but they look to the contents of their shared (putatively)

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reasonable conception of justice, that is, JF, to determine what this requires: it requires that they treat each other in accordance with what JF prescribes. And as JF prescribes, amongst other things, that they engage in public rea­ son-giving, conception-dependent respect commits them to do so. The point: to respect others in a conception-dependent sense is to treat them justly—or, say, as recipients of justice—as defined in terms of a given (putatively) rea­ sonable conception of justice. Accordingly, what behavior or choices this calls for depends on what that conception prescribes. A different idea of equal respect is expressed in political liberalism’s view that respect for reasonable citizens as free and equal persons requires politi­ cal power to accord with a conception of political justice that is publicly justifiable to them. In Rawls’s case, this brings together his liberal principle of legitimacy (or LPL) and APJ. How so? For political power to respect rea­ sonable citizens as free and equal persons, it must be exercised legitimately. Given LPL, this means that it must accord “with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.”16 This refers to principles and ideals that are justifiable as reasonable and rational by a reasonable conception of political justice. But such conceptions depend for their reasonableness on their coherent acceptability by reasonable citi­ zens. Accordingly, APJ accords these people a conception-constraining, justificatory say, or constitutive discursive standing, in relation to such con­ ceptions. In a sense, then, equal respect here involves treating relevant people as coauthors (rather than only recipients or clients) of political justice, or its justification. Elsewhere, I  refer to this kind of equal respect as a form of “discursive respect”17: to stand in a relationship of discursive respect with other people in moral or political matters involves a commitment to their constitutive dis­ cursive standing in such matters, or to their having of a justificatory say. This can take many forms depending, amongst other things, on what people are taken to have such a say on.18 For instance, Macedo suggests we owe reason­ able citizens discursive respect in relation to the goodness of good, publicly justifying reasons: to properly respect such citizens as free and equal persons, he writes, political liberalism sees the goodness of good reasons “entirely [as] a function of their capacity to gain widespread agreement among reasonable people.”19 Larmore suggests we owe reasonable people discursive respect in relation to political principles: to properly respect such people is “to require that political principles . . . be as justifiable to them from their perspective as they presumably are to us,”20 where this respect is the “moral basis of the liberal principle that the fundamental rules of political association are legitimate only if they can be the object of reasonable agreement.”21 Rawls’s commitment to discursive respect is complex. It brings together LPL and APJ, and it is deep in political liberalism’s order of justification: APJ constrains the reasonableness of conceptions of political justice. But this commitment also

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echoes at the level of JF itself: JF’s Original Position offers a reconstructive model of how APJ’s reasonable citizens go about accepting or rejecting can­ didate principles of political justice.22 In passing, I note that discursive respect is not quite the same as Stephen Darwall’s recognition respect. In an early formulation, Darwall tells us that to “have recognition respect for someone as a person is to give appropriate weight to the fact that he or she is a person by being willing to constrain one’s behavior in ways required by that fact.”23 This leaves open whether recogni­ tion respect commits us to accord others constitutive or derivative discur­ sive standing. He later associates recognition respect with the attribution to others of second-personal authority, or a commitment to be answerable to them and to provide them with second-personal reasons.24 His notion of the second-personal is hard to pin down. However, on a broadly constructivist reading, second-personal recognition respect is a special case of discursive respect. Roughly, for α to attribute to β second-personal authority in relation to φ is for α to attribute to β standing to demand of α justification for φ by reasons that are actually acceptable by β as justifying reasons for φ—where these reasons count as justifying or as good reasons because, or only insofar as, they are actually acceptable by β. This would involve according to others constitutive discursive standing—and a high-purchase form of such standing at that. By contrast, discursive respect leaves open how much purchase the discur­ sive standing of other people has, or should have, or how much our justifi­ cation standards may idealize. For example, discursive respect does not, or not by itself, commit us to take the goodness of reasons to depend on what relevant others can actually accept, rather than what they would accept when more (fully, ideally) rational or reasonable. Thus, unlike Darwall’s secondpersonal recognition respect, discursive respect is compatible with practices of reason-giving that, for worse or better, idealize more rather than less, or that accord people discursive standing that is low rather than high in pur­ chase. And since there is little agreement as to how much or how little the standards of public justification should idealize, it seems more impartial (or non-partisan) to say that public justification expresses or models a commit­ ment to discursive respect, than to say that it expresses or models a commit­ ment to Darwall-type second-personal recognition respect, as proponents of Gaus-type views of public justification sometimes do.25 3 Discursive equality? In public reason, then, not all citizens are discursive equals—that is, real public reason that aims for actualist public justification (as opposed to public reason in JF’s well-ordered society that aims for ideal public justification). Political liberalism attaches justificatory weight to what reasonable citi­ zens can or cannot coherently accept—and, in Rawls’s case, it does this at

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a politically fundamental level of argument. But it does not accord equal weight to what other people can or cannot coherently accept. What to make of this? I start with two comments. First, Rawls’s restriction on the (primary) constituency of actualist public justification is contested even in first-gener­ ation political liberalism. For example, while Larmore concedes that politi­ cal liberalism excludes some people, he in effect argues that actualist public justification—or “rational dialogue”26—should be more inclusive than Rawls allows: it should fully enfranchise people who are (i) reasonable in an epis­ temic sense—reasonableness in his sense “consists in believing and doing what is justified, given one’s background beliefs, standards and interests”27— provided they also (ii) are “committed to basing political association on prin­ ciples that can meet the reasonable agreement of citizens,”28 or “prize most highly the norms of rational dialogue and equal respect.”29 Of course, depend­ ing on how we read (ii), a variant of APJ that requires for full enfranchise­ ment Larmore-type reasonableness-plus might not be (much) more inclusive than a variant that requires Rawls’s politically basic reasonableness. At any rate, political liberals disagree about what is required for full enfranchise­ ment, but they often require reasonableness (or reasonableness-plus) while typically construing this in terms that not all citizens satisfy anyway. Below, I continue to put things in terms of reasonableness—where “reasonable” is a placeholder for a salient restriction on APJ’s (primary) constituency. Second, recall that restrictions on the membership in the constituency of public justification sometimes indirectly specify what authoritativeness con­ straints public justification adopts. This suggests we might interpret the dis­ cursive inequality of the unreasonable in two ways: 1. Political liberalism denies unreasonable people formal discursive equality (in FE’s sense, see Section  2): only reasonable citizens have constitutive discursive standing. 2. Political liberalism denies unreasonable people substantive discursive equality (in SE’s sense, see Section 2). Reasonable and unreasonable peo­ ple have constitutive discursive standing, but discursive input counts toward justification only insofar as it is reasonable: reasonable people have discursive standing that is high in purchase (like Betty in JP1, above) while unreasonable people have discursive standing that is low in purchase (more like Betty in JP2). Of course, against the background of what we have seen above, it is plain that (1) and (2) are not entirely the same. But let me now go with (2). Point (2) amounts to a promising variant of APJ, and it ties in with Larmore’s view of equal (discursive) respect in political liberalism: [T]he moral idea of respect for persons lying at the heart of politi­ cal liberalism should be formulated more precisely as follows: the

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fundamental principles of political society . . . ought to be such that all who are to be subject to them must be able from their perspective to see reason to endorse them on the [perhaps counterfactual] assumption that they are committed to basing political association on principles that can meet the reasonable agreement of citizens.30 It is not clear what this looks like in actual practice. In the abstract, it sug­ gests something like (2), above. APJ does not deny the unreasonable a justifi­ catory say altogether, but recognizes uses of a justificatory say—acceptances, rejections, objections, or other expressions of doubt or disagreement—as authoritative only if they are reasonable, or accord with what reasonable citizens could or would say. Thus, the unreasonable now have a justificatory say, but their say is filtered, hypotheticalized, or idealized, in a way in which the say of the reasonable is not. The reasonable have standing that is high in purchase, like Betty in JP1: what they actually can or cannot coherently accept has full justificatory weight. But the unreasonable have standing that is low, or lower, in purchase, like Betty’s standing in JP2: what they say matters only insofar as it is aligned with what reasonable citizens could or would say.31 Is this consonant with equal discursive respect, as Larmore evidently assumes? This is not clear. One question here is what equal discursive respect requires to begin with. And, it seems, it requires more than formal discursive equality, but less than discursive equity, or formal plus substantive discur­ sive equality. Specifically, it requires the absence of impermissible purchase inequality. I first spell out this point, and then bring things back to political liberalism. Recall first the nature of formal and substantive discursive equality, and discursive equity. FE, above, claims that JP accords α and β discursive stand­ ing that is equal formally if and only if JP accords α and β discursive standing of the same overall kind and applies to α and β the same authoritativeness constraints. SE claims that JP accords α and β discursive standing that is equal substantively only if their standing is equal in discursive purchase. Not least, DE claims that JP meets discursive equity if and only if the standing that JP accords is equal both formally and substantively. Thus, if we consider what kind of discursive equality a commitment to equal discursive respect calls for, or what kind or level of discursive inequality such a commitment might be consonant with, if any, the difference between these three things must complicate matters. However, first, it seems that formal discursive equality is insufficient for equal discursive respect. A justification practice can allocate formally equal discursive standing while denying or diminishing the discursive influence of some people or groups in a manner that turns justification practice into a vehicle of marginalization, or domination.32 For example, let JP3 adopt ψ as its authoritativeness constraint, but assume that discursive input is ψ, or counts toward justification, only if it coheres with (partisan, respectably

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rejectable) values that are typically endorsed by the members of a socially dominant group. JP3’s standards will hence deny or diminish the capacity of other people to reject or contest these values, or any proposal that is closely based on them. This rigs justification in a manner that operates to reproduce or entrench the social dominance of that group. Still, JP3 can satisfy formal discursive equality so long as it accords all constitutive discursive standing and applies ψ consistently. At least intuitively, therefore, formal discursive equality is not enough. (And of course there are similarities between JP3 and APJ, if the latter is premised on Rawls’s politically basic idea of the reason­ able as its authoritativeness constraint.) Second, equal discursive respect must require less than discursive equity. Any interesting practice of actualist public justification will adopt authori­ tativeness constraints that are non-trivial in that not everyone always meets them anyway, no matter what—including Nazis, racists, religious fanatics, psychopaths, and so on. For, arguably, it would otherwise entail incoherence or anomy.33 But when non-trivial authoritativeness constraints range over inclusive and diverse constituencies, ordinary facts of interpersonal differ­ ence will make it likely that an authoritative use of a justificatory say is more accessible for some people than others—which will entail purchase differ­ ences, however minimal.34 The point: if (interesting) practices of actualist public justification can satisfy equal discursive respect, then the latter must require less than discursive equity. Thus, third, there is reason to seek middle ground between formal discur­ sive equality and discursive equity. That is, the kind of discursive equality that equal discursive respect calls for should be seen as relevantly purchasesensitive. A  self-suggesting option: equal discursive respect requires the absence of impermissible substantive discursive inequality. Specifically, APJ can accord with equal discursive respect even if APJ allocates α and β a jus­ tificatory say that is equal formally but not substantively, in terms of its discursive purchase, provided their say does not impermissibly differ in pur­ chase. If so, the question shifts: when are differences in discursive purchase permissible, or just? This question points toward terrain that is not well explored in the current public reason literature. Note that this question arises for all forms of public reason liberalism that adopt (i) a commitment to equal discursive respect, and (ii) a variant of APJ that accords some people, such as the unreason­ able (unreasonable-plus), constitutive discursive standing of lesser purchase. To accord to some people constitutive discursive standing of lesser purchase either is compatible with equal discursive respect, or it is not. If it is not com­ patible with equal discursive respect, public reason liberalism must abandon (i) or (ii) (or both). But if the assumption is that it is compatible with equal discursive respect, then it must be explained why it is compatible with it, or why salient purchase differences are permissible. And it is open what such an explanation can look like.

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4 Permissible purchase inequality? The issue of permissible purchase inequality leaves political liberalism in a tight spot, but this is not the end of the story. One way to proceed here is to approach the issue as a higher-order matter of distributive justice: it concerns the permissibility of allocations of what arguably is an important good, namely, discursive influence in justification, or discursive standing that is high in purchase, like Betty’s standing in JP1, rather than low in purchase, like her standing in JP2. If we may approach matters in such terms, we can conceive of various candidate conceptions of the permissibility of purchase inequality—or of purchase justice, for short—that adapt general intuitions about distributive justice to the case at hand. By way of conclusion, I gesture in the direction of a broadly sufficientarian candidate that springs to mind here.35 This candidate draws on Harry Frankfurt’s intuition that where inequal­ ity matters, this is often only because the people who have less do not have enough.36 This suggests something like Discursive Sufficientarianism: DS

Purchase inequality is permissible, or just, only if each relevant per­ son has constitutive discursive standing of sufficient purchase.

This says little unless we specify a sufficiency threshold. Such thresholds can be of at least two kinds: MaxS Maximalist sufficiency: α’s discursive standing has sufficient discur­ sive purchase when it is enough for α to access relevant goods—that is, if it is such that had α more discursive purchase, this would not add relevant positive value. MinS Minimalist sufficiency: α’s discursive standing has sufficient discur­ sive purchase when it is enough for α to avoid relevant bads—that is, if it is such that had α less discursive purchase, α would not be able to do, bring about, or avoid, what it would be relevantly bad for α not to be able to do, bring about, or avoid. Both kinds of thresholds are eligible, but I now limit my attention to a view that premises DS on MinS—say, minimalist discursive sufficientarianism. On such a view, much depends on what counts as a relevant bad. What should count as a relevant bad in MinS’s sense? Many things might qualify. To put some content into this, take the intui­ tion that moral or political reason-giving should have a protective function: it should enable us to effectively contest what we regard as wrong, false, or unacceptable. Plainly, this matters to us—whether we understand it in terms of respect for our (presumptive) “qualified veto-right” to reject “unjustified domination,”37 or in terms of our (presumptive) authority as a “voice that

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cannot be dismissed without independent reason.”38 Let me understand it in terms of Rawls’s insight that we see ourselves as “self-authenticating sources of valid claims.”39 Adapted to the case of moral or political reason-giving: we take ourselves to be entitled to make claims on others in relation to what they see as good reasons, and we expect them to attach positive weight to our claims even when these claims express a motivated non-acceptance of their reasons—widely conceived so as to include rejections, objections, and other expressions of doubt or disagreement. And, minimally, we seem to expect that others regard, or are prepared to regard, our motivated non-acceptance of their reasons as something that can cast doubt on, or put in need of justi­ fication, these reasons, or their presumed goodness—that is, also from their perspective, and even if they disagree with what we say. Elsewhere, I call this the “recognitive discursive minimum” of what we expect of others in moral or political reason-giving.40 Perhaps, then, it is a relevant bad if, in a given justification practice, the recognitive discursive minimum is not readily available to relevant people. And, it seems, that minimum is not readily available where public justifica­ tion does not count our motivated rejections as authoritative, or as nega­ tively contributing to the justification status of the things that we reject.41 For instance, recall Betty’s standing in JP2: JP2 does not count her rejection of φ as authoritative, or as having justificatory weight—which exposes her to a denial of the recognitive discursive minimum. The point: for this mini­ mum to be readily available, it is necessary (but perhaps not sufficient) that relevant authoritativeness constraints make it a readily available option for relevant people, given their actual perspective and deliberation resources, to reject things in ways that count as authoritative. It is a small step from here to conclude that, whatever else is necessary for permissible purchase inequality (and all other things equal), purchase inequality is impermissible, or unjust, where it is not a readily available option for relevant people to authoritatively reject moral or political things that they cannot actually accept coherently. As the example of JP2 suggests, that option does not seem to be readily available where the authoritativeness of discursive input is defined in highly idealizing terms. But neither does it seem to be readily available where all authoritative input must accord with values, widely conceived, that relevant people cannot actually accept coherently—as is the situation of the unreason­ able in APJ. In both cases, there not only is a gap between what justification counts as an agent’s authoritative say, or what she would say if she met the relevant authoritativeness constraints, and her actual say, or what she is actually committed to accept or reject—but there is a gap that seems to be too wide for the recognitive discursive minimum to be readily available. The upshot: other things being equal, political liberalism seems to allocate discursive standing to the unreasonable that is impermissibly unequal sub­ stantively—standing, that is, that seems to be incompatible with political liberalism’s commitment to equal discursive respect. Call this the Objection

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from Impermissible Purchase Inequality, or a sufficientarian variant of this objection. This has much appeal, but it does not achieve a great deal. It does, how­ ever, draw out relevant questions. When does the gap just referred to become too wide? How much can relevant authoritativeness constraints idealize before the recognitive discursive minimum becomes relevantly unavailable (say, in relation to a given context, subject matter, or constituency)? Another question must be under what conditions we may withhold according to oth­ ers that minimum—and, evidently, not all expressions of doubt or disagree­ ment, whatever their motivation or content, should be taken to put in need of justification our reasons, or their (presumptive) goodness. And of course these things are a mere fraction of the issues that a promising version of dis­ cursive sufficientarianism would need to address, given what else might be a relevant bad in MinS’s sense, and given, as well, that MinS is not the only eligible candidate sufficiency threshold. Not least, DS is not the only eligible candidate view of the permissibility of purchase inequality, or of purchase justice. In closing, it remains open how public reason liberalism should construe authoritative acceptability in public justification. But where liberal public justification accords actual people discursive respect and relevantly idealizes at least around its fringes, the permissibility of purchase inequality must be a central concern. Notes 1 John Rawls, Political Liberalism, Expanded ed. (New York: Columbia University Press, 2005); John Rawls and Erin Kelly, Justice as Fairness: A Restatement (Cam­ bridge, MA: Harvard University Press, 2001); Charles Larmore, The Moral of Modernity (Cambridge: Cambridge University Press, 1996); Larmore, “Political Liberalism: Its Motivation and Goals,” in Oxford Studies of Political Philosophy, Vol. 1, ed. David Sobel, Peter Vallentyne, Steven Wall (New York: Oxford Uni­ versity Press, 2015), 63–88; Stephen Macedo, Liberal Virtues (Oxford: Oxford University Press, 1991). 2 Rawls, Political Liberalism, 465. 3 See fn. 1, above, and Thomas Nagel, Equality and Partiality (Oxford: Oxford University Press, 1991); Gerald Gaus, The Order of Public Reason (Cambridge: Cambridge University Press, 2011); Rainer Forst, The Right to Justification (New York: Columbia University Press, 2012); Johan Brännmark and Eric Brandst­ edt, “Rawlsian Constructivism and the Assumption of Disunity,” The Journal of Political Philosophy 27, no. 1 (2019); Besch, “On Actualist and Fundamental Public Justification in Political Liberalism,” Philosophia 48, no. 5 (2020); Kevin Vallier and Ryan Muldoon, “In Public Reason, Diversity Trumps Coherence,” Journal of Political Philosophy 29, no. 2 (2021); Besch, “Patterns of Justification: On Political Liberalism and the Primacy of Public Justification,” Journal of Social and Political Philosophy 1, no. 1 (2022). 4 This draws on Gerald J. Postema’s notion of robustly public justification: see his “Public Practical Reasoning: An Archaeology,” Social Philosophy and Policy 12, no. 1 (1995).

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5 On the two kinds of discursive standing addressed in this paragraph, see Besch, “On Discursive Respect,” Social Theory and Practice 40, no. 2 (2014): 208f; Besch, “On Justification, Idealization, and Discursive Purchase,” Philosophia 47, no. 3 (2019): 605ff. 6 Besch, “Discursive Respect,” 216–220, and “On Justification,” 606ff; see also Besch, “On Robust Discursive Equality,” Dialogue: Canadian Philosophical Review 58 (2019): 470ff. 7 See the account of idealization and its relationship with discursive purchase in Besch, “On Justification,” 608–611. 8 For instance, public justification might pursue (non-alethic, non-recognitive) pru­ dential goals, such as Hobbesian goals of individual or collective safety: see, for example, David Gauthier, “Public Reason,” Social Philosophy and Policy 12, no. 1 (1995): 19–42. 9 On formal and substantive discursive equality, and discursive equity (see below): see Besch, “Discursive Equality,” 473–476. 10 Besch, “Actualist Justification,” 1779ff. 11 Rawls, Political Liberalism, 8, 28, 94; see also Besch, “Actualist Justification,” 1784ff. 12 Rawls, Political Liberalism, 28. 13 Besch, “Actualist Justification,” 1784f. 14 See Macedo, Liberal Virtues, 46f, or Larmore, “Political Liberalism,” 78f. 15 See Besch, “Actualist Justification,” 1779–1783. 16 Rawls, Political Liberalism, 217. 17 Besch, “Discursive Respect,” 207ff. 18 Of course, it also depends on other things. For instance, much depends on the purchase of the constitutive discursive standing of relevant people: see ibid., and below. I discuss various dimensions in which conceptions or practices of discur­ sive respect can vary, and tenuous interdependencies between calibrations of such respect in these dimensions, in Besch, “Discursive Respect,” 212–220, 224–231. 19 Macedo, Liberal Virtues, 46f. 20 Larmore, “Political Liberalism,” 78; my emphasis. 21 Ibid., 79. 22 See Besch, “Actualist Justification,” 1787ff. I develop this reading more fully in Besch, Über John Rawls’ politischen Liberalismus (Frankfurt: Peter Lang, 1998); “Political Liberalism, The Internal Conception, and The Problem of Public Dogma,” Philosophy and Public Issues 2, no. 1 (2012); “On Political Legitimacy, Reasonableness, and Perfectionism,” Public Reason 5, no. 1 (2013); and “Actu­ alist Justification” and “Patterns of Justification.” This reading amounts to an actualist variant of what Jonathan Quong calls an “internal” conception of politi­ cal liberalism—see his Liberalism without Perfection (Oxford: Oxford University Press, 2011): unlike Quong’s ideal variant, this reading assumes that political lib­ eralism, at a fundamental level of argument, construes public justification as fully enfranchising actual reasonable citizens. For differences between this reading and Quong’s variant of an internal conception: see Besch, “Actualist Justification,” 1789ff. 23 Stephen Darwall, “Two Kinds of Respect,” Ethics 88, no. 1 (1977): 45. 24 Stephen Darwall, The Second-Person Standpoint (Cambridge: Cambridge Uni­ versity Press, 2006); “Precis: The Second-Person Standpoint,” Philosophy and Phenomenological Research 82, no. 1 (2010); and “Authority and Reason: Exclu­ sionary and Second-Person,” Ethics 120, no. 1 (2010). 25 See, for example, Gerald F. Gaus, “Respect for Persons and Public Justification,” in Respect, ed. Richard Dean and Oliver Sensen (Oxford: Oxford University

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Press, 2021), 55–76; Han van Wietmarschen, “Political Liberalism and Respect,” The Journal of Political Philosophy 29, no. 3 (2021). Larmore, Morals, 134ff. Larmore, “Political Liberalism,” 70. Ibid., 82f. Larmore, Morals, 142. Larmore, “Political Liberalism,” 82f. Note that the point here is not that APJ so construed accords the unreasonable discursive standing that is permissibly unequal or high enough in purchase. Far from it: see Section 5. I am indebted to the editors for reasons to highlight this here. See Besch, “Discursive Equality,” 473–476. Ibid., 475f. Ibid. For this and various other candidate conceptions of purchase justice, see Besch, “Discursive Equality,” 476–485. Harry Frankfurt, On Inequality (Princeton, NJ: Princeton University Press, 2015), 43–61. Rainer Forst, “Toward a Critical Theory of Transnational Justice,” Metaphiloso­ phy 32, no. 1 (2001): 168f; “The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach,” Ethics 120, no. 4 (2010): 719. Philip Pettit, Republicanism (Oxford: Oxford University Press, 1997), 91. Rawls and Kelly, Justice as Fairness, 23. Besch, “On Justification,” 618f. Ibid., 614–623.

References Besch, Thomas M. Über John Rawls’ politischen Liberalismus. Frankfurt am Main: Peter Lang, 1998. ———. “Political Liberalism, the Internal Conception, and the Problem of Public Dogma.” Philosophy and Public Issues 2, no. 1 (2012): 153–77. ———. “On Political Legitimacy, Reasonableness, and Perfectionism.” Public Rea­ son 5, no. 1 (2013): 58–74. ———. “On Discursive Respect.” Social Theory and Practice 40, no. 2 (2014): 207–31. ———. “On Justification, Idealization, and Discursive Purchase.” Philosophia 47, no. 3 (2019a): 601–23. ———. “On Robust Discursive Equality.” Dialogue: Canadian Philosophical Review 58, no. 3 (2019b): 465–90. ———. “On Actualist and Fundamental Public Justification in Political Liberalism.” Philosophia 48, no. 5 (2020): 1777–99. ———. “Patterns of Justification: On Political Liberalism and the Primacy of Public Justification.” Journal of Social and Political Philosophy 1, no. 1 (2022): 47–63. Brännmark, Johan, and Eric Brandstedt. “Rawlsian Constructivism and the Assump­ tion of Disunity.” The Journal of Political Philosophy 27, no. 1 (2019): 48–66. Darwall, Stephen. The Second-Person Standpoint. Cambridge, MA: Harvard Univer­ sity Press, 2006. ———. “Authority and Reasons: Exclusionary and Second-Personal.” Ethics 120, no. 1 (2010a): 257–78.

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———. “Precis: The Second-Person Standpoint.” Philosophy and Phenomenological Research 82, no. 1 (2010b): 216–28. Forst, Rainer. “Toward a Critical Theory of Transnational Justice.” Metaphilosophy 32, no. 1 (2001): 160–79. ———. “The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach.” Ethics 120, no. 4 (2010): 711–40. ———. The Right to Justification. New York: Columbia University Press, 2012. Frankfurt, Harry. On Inequality. Princeton, NJ: Princeton University Press, 2015. Gaus, Gerald F. The Order of Public Reason. Cambridge: Cambridge University Press, 2011. ———. “Respect for Persons and Public Justification.” In Respect, edited by Richard Dean and Oliver Sensen, 55–76. Oxford: Oxford University Press, 2021. Gauthier, David. “Public Reason.” Social Philosophy and Policy 12, no. 1 (1995): 19–42. Larmore, Charles. The Morals of Modernity. Cambridge: Cambridge University Press, 1996. ———. “Political Liberalism: Its Motivation and Goals.” In Oxford Studies in Politi­ cal Philosophy, Vol. 1, edited by David Sobel, Peter Vallentyne, and Steven Wall, 63–88. New York: Oxford University Press, 2015. Macedo, Stephen. Liberal Virtues. Oxford: Oxford University Press, 1991. Nagel, Thomas. Equality and Partiality. Oxford: Oxford University Press, 1991. Pettit, Philip. Republicanism. Oxford: Oxford University Press, 1997. Postema, Gerald J. “Public Practical Reasoning: An Archaeology.” Social Philosophy and Policy 12, no. 1 (1995): 43–86. Quong, Jonathan. Liberalism Without Perfection. Oxford: Oxford University Press, 2011. Rawls, John. Political Liberalism. Expanded edition. New York: Columbia University Press, 2005. ——, and Erin Kelly. Justice as Fairness: A Restatement. Cambridge, MA: Harvard University Press, 2001. Vallier, Kevin, and Ryan Muldoon. “In Public Reason, Diversity Trumps Coherence.” Journal of Political Philosophy 29, no. 2 (2021): 211–30. van Wietmarschen, Han. “Political Liberalism and Respect.” The Journal of Political Philosophy 29, no. 3 (2021): 353–74.

6

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liberalism

Why public reason liberalism should be reconcilable with political perfectionism Patrick Zoll

Introduction Public reason liberals are divided on the structure of public reason. There is a disagreement about the ways in which the imposition of a coercive political measure M can be publicly justified to each and every reason­ able member of the relevant constituency.1 Consensus accounts of public reason’s structure reject the possibility that a coercive political measure M may be publicly justified without any shared or accessible reasons, while convergence accounts allow for such a possibility.2 In other words, accord­ ing to the consensus view, M meets the test of public justification only if M is justified with considerations which every reasonable member of the justificatory constituency can accept as reasons for the justification of M. In contrast, according to the convergence view, M can also be publicly justi­ fied if every reasonable member of the relevant public has a consideration which constitutes a weighty or sufficient reason to endorse M from their standpoint.3 Thus, the decisive question on which the debate turns is whether public justification requires something like a common evaluative framework, com­ mon evaluative standards, or a common epistemic perspective with the help of which relevance disagreements can be settled, that is, disagreements about the question whether a certain consideration constitutes a reason which is relevant for the justification of M.4 Leading proponents of the consensus model of public reason liberalism such as Jonathan Quong and leading pro­ ponents of the opposing convergence model such as Gerald Gaus agree that the question about the structure of public reason is central to the whole lib­ eral project and that an answer to this question determines in which direction the liberal tradition in political philosophy develops.5 In the following, I  formulate a novel argument in favor of the conver­ gence structure of public reason. I  argue that a liberalism with a conver­ gence structure of public reasoning is preferable to a liberalism with a consensus structure because only the former can be reconciled with a politi­ cal perfectionism.6

DOI: 10.4324/9781032702766-9

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1 Why only a consensus account is inherently anti-perfectionistic Let us begin by explaining why a convergence but not a consensus model of public reason liberalism can be reconciled with a political perfectionism. At the heart of the debate about public reason’s structure is the question whether a certain kind of reason can figure into the public justification of a coercive measure M: perfectionist reasons are considerations whose justificatory rel­ evance depends on the acceptance of a view on the human good or human flourishing.7 If we define an evaluative standard as a normative belief or con­ viction which—in conjunction with other beliefs about the world—gives a person a reason to endorse a coercive political measure M, then views on human flourishing can be called ‘perfectionist evaluative standards.’8 According to proponents of a consensus account of public reason, such as Jonathan Quong, a consensus on actual justificatory reasons is not necessary for public reasoning. Rather, what is necessary for public reasoning—that which makes the reasoning public—is a consensus on possible justificatory reasons. However, a consensus on possible justificatory reasons requires a prior consensus on evaluative standards. But public reason liberals agree that due to the burdens of judgments, there is a reasonable pluralism of perfectionist evaluative standards. There are no common perfectionist evaluative stand­ ards, no view on human flourishing which would be accepted by all reason­ able citizens. If this is the case, a consensus on possible justificatory reasons which are perfectionist in nature is impossible to obtain for a principled rea­ son. Consequently, perfectionist reasons cannot figure into the process of the public justification of a coercive measure M. Therefore, a consensus account of public reason’s structure is inherently anti-perfectionistic. Things look different in the case of a convergence account of public rea­ son’s structure. Proponents of such a view such as Gerald Gaus or Kevin Vallier argue that public reasoning does not require a consensus on evaluative standards.9 What matters for the public justification of a coercive measure M is not that M is justified only with considerations on which all members of the public can agree on that they are possible justificatory reasons. Rather, what matters is that M is justified only by means of considerations which can be recognized by all members of the public as justificatory reasons according to the evaluative standards of the persons advancing them.10 According to this convergence account of public reason’s structure, however, perfectionist reasons can figure into the public justification of M. It is possible that M is publicly justified through a convergence of perfec­ tionist considerations which do not count as reasons for all members of the public. All that is required for the public justification of M is that it is intelligi­ ble for all reasonable members of the public that each reasonable member of the public has a consideration which counts as a sufficient or weighty reason to endorse M according to their own evaluative standards.11 Consequently, a convergence account of public reason’s structure is not inherently anti­ perfectionistic but rather can be reconciled with a political perfectionism.

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2 Why public reason liberalism should be reconcilable with political perfectionism If a consensus account is adopted public reason liberalism rules out the possi­ bility that perfectionist considerations play a role in the public justification of a political measure M. There are no common perfectionist evaluative stand­ ards with the help of which it would be possible to determine whether such considerations are justificatory relevant.12 Yet I have shown that the conver­ gence account of public reason’s structure can be reconciled with political perfectionism. On the basis of a convergence account, there is the possibility of perfectionist public reason liberalism. Now I will argue that an account of public reason’s structure should be reconcilable with political perfectionism. In short, perfectionist public reason liberalism would be preferable, if it can be consistent and plausible, as antiperfectionist liberalism imposes severe restrictions on the scope of what lib­ eral states can legitimately do. Those restrictions in turn deprive liberal states of important means to ward of illiberal threats to their well-functioning or even their existence. If there were a publicly reasonable way to employ perfectionist considerations in public decision-making, many difficulties for public reason liberalism would be dissolved. Leading proponents of a consensus account of public reason’s structure such as Quong openly admit that many standard justifications for a wide range of laws and policies in liberal democracies are perfectionistic in charac­ ter and consequently are inadmissible according to the conception of public justification they advance. On this picture, many of the things which liberal states actually do fail to meet the test of public justification. As laws and policies which rely on perfectionist reasons are not legitimate, Quong argues liberal states should cease enacting policies on these bases.13 For example, laws that prohibit gambling, prostitution, pornography, or recreational drug use are discouraged by the state for reasons which de facto imply these activities are inimical to human flourishing. On Quong’s sort of liberalism, such prohibitions cannot be justified with a perfectionist rationale that such activities are worthless or vices. Without such reasons, these activi­ ties must be allowed. Conversely, not even state action indented to foster the autonomy or reasoning capacities of citizens would be publicly justifiable. These actions would presuppose a view on human flourishing according to which it is good for human beings to be autonomous and to develop their reasoning capacities. For that reason too, public funding of the arts or other forms of financial incentives which aims to “nudge” citizens to choose cer­ tain activities or ways of life (instead of others) could not be justified on the grounds that some activities or ways of life are more worthy, virtuous, or expressive of or conductive to a flourishing human life than others.14 Since it does not appear possible to give anti-perfectionist justifications for all these policies, it follows that most would be unjustified. A consensus account like Quong’s thus requires a liberal state to be steadfastly neutral in wide-ranging ways, eschewing any kind of political measure by which the state aims to

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help its citizens to flourish. Such action cannot be publicly justified in terms of a consensus of reasons shared by all members of the public. Advocates of a consensus account of public reason’s structure such as Quong can of course welcome this severe restriction on what a state can legitimately do. They clearly think a liberal state should be a very thin antiperfectionist state. However, a good reason to reject these restrictions, and the resulting thin conception of a liberal state, is that it deprives liberal states of important means to secure their own persistence. The reason can be for­ mulated as follows. First, the existence of a liberal democracy—more precisely, the institutions characteristic for a liberal democracy such as a constitution which guarantees fundamental individual rights, elections, the rule of law, and so on—depends on the existence of liberal and democratic citizens. In other words, one neces­ sary condition for the persistence of a liberal democracy is the existence of citizens who are committed to liberal values such as liberty, equality, or fair­ ness, who respect the outcome of democratic procedures, who abide by the rule of law, and so on. In short, you cannot have liberalism without liberals, and you cannot have a democracy without democrats.15 Second, the existence of a liberal democracy in which the legitimacy of the exercise of coercive political power is tied to its public justification—as in public reason liberalism—depends on the existence of liberal and demo­ cratic citizens who possess the knowledge, skills, or virtues needed to reason and deliberate well not only for themselves but also together with others. In short, you cannot have public reason liberalism without citizens who are able to reason publicly, that is, public reasoners. Third, no human being is born as a liberal, a democrat, or a public rea­ soner. In other words, no person is born committed to liberal values, or respecting the outcome of democratic procedures, and so on. Furthermore, no human being has the knowledge, skills, or virtues to reason and deliberate well individually or in common at their disposal who is not socialized into these practices. Rather, an appreciation of liberal values must be developed, and the knowledge, the skills, and the virtues necessary to exercise one’s capacity to reason and deliberate well individually as well as with others must be acquired. Fourth, it is quite plausible to assume that some activities, relations, ways of life, social institutions, or cultural contexts help persons to appreciate lib­ eral values or to acquire the knowledge, skills, or virtues needed to reason and deliberate well. Plausibly, for instance, citizens better develop skills to reason well (individually or publicly) in a chess or a debate club than in a gym. Or, citizens who participate in democratically organized civil associations such as the German scouts—the DPSG—plausibly develop an appreciation of liberal values and acquire the virtues which are needed for the well-functioning of a democracy more easily than citizens who do not.

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Fifth, conversely, some activities, relations, ways of life, or forms of asso­ ciation hinder human beings in becoming liberals, democrats, or public rea­ soners. For example, it is highly likely that an active participation in meetings and activities of the Ku-Klux-Klan hinders persons in acquiring the skills and virtues they need to reason well and to appreciate those values the endorse­ ment of which is constitutive of the functioning of liberal democracies. If the preceding five points are the case, it follows that public reason liberals have a good reason to prefer a thick perfectionist state over a thin anti-perfectionist one. Consequently, we have good reason to reject the antiperfectionist restriction on what liberal states can legitimately do. Only a thick perfectionist conception of a liberal state allows for the possibility that the state can actively care about the existence of citizens who are liberals, democrats, and public reasoners. In other words, only a perfectionist public reason liberalism allows for the possibility that liberal states can continue to justify certain actions or measures on the grounds that they help or hinder citizens to become the kind of persons on which the well-functioning or even existence of a liberal democracy depends.16 At this point, it is important to distinguish between strong and weak ver­ sions of political perfectionism. A preference for a thick perfectionist state which aims to help citizens to become good reasoners is not necessarily a preference for a state which directly interferes with how illiberal communi­ ties (e.g., certain religious communities such as the Amish, orthodox Jews, or conservative Muslims and Christians) raise or educate their children.17 A public reason liberalism can rule out a strong political perfectionism on the grounds that such an interference is disproportionate, that it is in an objectionable sense paternalistic, or that it is most likely counterproductive. Instead, public reason liberals can content themselves with a weaker form of political perfectionism which restricts the scope of perfectionist state action to actions such as financial subsidies for activities, cultural and social institu­ tions, or forms of organizations which help to bring liberal democrats and public reasoners into existence. To sum up, if the existence of a liberal democracy and a public reason liberalism depends on the existence of liberal democrats and public reason­ ers, it seems unwise to embrace a theory of public reason liberalism whose implementation has the consequence that it is no longer legitimate for a lib­ eral state to use at least some of its resources and powers (e.g., taxation and financial incentives) to secure or promote the existence of citizens who endorse liberal values, or who have the skills and virtues needed to reason well together in a plural and diverse society. Given the seemingly rising num­ ber and influence of unreasonable and illiberal citizens, organizations, or doctrines within liberal democracies, it is unreasonable and unwise to opt for a theory which imposes liberal states a severe restriction on the theoretical and practical means they can use to counter such tendencies.

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3 A rebuttal of Quong’s objection against a perfectionist public reason liberalism As we have seen above, Quong openly admits that according to his preferred consensus account of public reason’s structure, a wide range of perfection­ ist laws and policies become inadmissible because perfectionist justifications of any kind cannot be given for coercive laws and policies.18 However, this raises the question of why such justifications are inadmissible. Quong needs to explain why citizens who are committed to liberal values should refrain from using perfectionist reasons in the public justification of state action. Quong’s reasoning starts with a premise on which there is a widespread agreement among public reasons liberals, namely, that not all justifications of laws and policies are admissible in public justification. At least some reasons fail to meet the requirements of public justification. Anti-perfectionist and perfectionist public reason liberals both usually accept that there must be some restriction on what reasons can play a role in public justification. Oth­ erwise, the acceptance of any political principle is held hostage to demands of unreasonable citizens: for example, ignorant, self-obsessed, or otherwise troublesome people.19 Public reason liberals agree that psychopathic, Nazi, or other racist justifications or reasons should play no relevant role in public justification.20 A standard way to argue for the exclusion of such reasons as relevant to public justification is to point out that they depend on the acceptance of unreasonable views, beliefs, or doctrines.21 But what makes a view or doc­ trine unreasonable? It is important to note that Quong’s argument against perfectionist public reason liberalism works only if the relevant conception of unreasonableness not only disqualifies psychopathic or racist views as unrea­ sonable but also perfectionist ones. According to Quong, a doctrine or view is unreasonable if it rejects or contradicts the following four ideas22: (1) Freedom and equality are core liberal values or basic liberal norms, that is, persons should be treated as free and equal. (2) Political society should be a fair system of social cooperation for mutual benefit. (3) Reasonable pluralism is a fact which results from the burdens of judgment. (4) The core liberal values or basic liberal norms, that is, the political val­ ues of freedom, equality, and fairness have deliberative priority in one’s practical reasoning. The exclusion of problematic reasons—such as racist justifications of a politi­ cal measure M—can be justified on the grounds that such reasons depend on the acceptance of an unreasonable view, that is, one which rejects or con­ tradicts at least (1) or (2). For example, on this characterization, racism is

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correctly qualified as being an unreasonable doctrine, as racist views stand in sharp conflict to the moral idea that people are equal and should be treated accordingly (1).23 However, it is important to note that a reference to the first three ideas alone is not sufficient to justify the inadmissibility of standard perfectionist justifications of laws or policies in liberal states. For example, in Germany, 13 state-funded scholarship programs for gifted students exist which are affiliated with political parties or different religious or non-religious worldviews. Students who participate in these programs receive not only stipends financed by tax money, but they are also obliged to take part in workshops and summer schools which aim to make them more appreciative of values such as equality, fairness, respect, or plurality, hone their reasoning skills, and familiarize them with democratic procedures. The justification of the considerable financial support for these programs is that a democracy needs for its survival citizens who are committed to lib­ eral and democratic values, as opposed to values which are inimical to the existence of liberal institutions (e.g., racist values).24 This justification is per­ fectionist in nature because it is not neutral with respect to the question of what constitutes a good life or the question of which ways of life are better than others.25 It depends on the perfectionist doctrine D that ways of life which incorporate or are able to incorporate liberal values such as liberty, equality, respect, and so on are better than ways of life which reject such values (e.g., racist ones).26 However, the acceptance of D does not conflict with (1). To the contrary, D gives expression to the moral belief that persons should be treated as free and equal. It is better to treat persons as equal than, for example, in the way that racists do. Furthermore, a commitment to D does also not contradict a commitment to (2). Rather, if the scholarship programs achieve their edu­ cational and formative goals at least in part, it is more likely that the Ger­ man political society becomes a fair system of social cooperation for mutual benefit. There will be more citizens committed to values and equipped with virtues needed to establish such a cooperation. Finally, the acceptance of D makes it also unnecessary to reject the fact of reasonable pluralism. The German state who acts in this perfectionist way does not identify with a particular worldview or party program. Rather, the fact that the German state financially supports 13 scholarship programs which are affiliated with a wide variety of religious and non-religious worldviews and political standpoints is precisely a recognition of the fact that there exists a reasonable pluralism concerning conceptions of the good (life). This example demonstrates that a reference to the first three ideas alone is not sufficient to justify the exclusion of perfectionist reasons from public justification on the grounds that they depend on the acceptance of an unrea­ sonable view or doctrine. There are at least some perfectionist doctrines or views that do not contradict the fundamental political and moral ideas of a

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liberal democratic regime formulated in (1) to (3). Consequently, standard perfectionist justifications of state action which depend on the acceptance of these not apparently unreasonable perfectionist doctrines cannot be qualified as inadmissible and ruled out a priori from public reasoning. To justify the claim that all perfectionist views or doctrines are unreason­ able, Quong needs to introduce (4): a doctrine or view is unreasonable if it rejects or contradicts the idea that the core liberal values or basic liberal norms—the political values of freedom, equality, and fairness—have delib­ erative priority in one’s practical reasoning.27 In the literature, claim (4) is usually interpreted as giving expression to the idea that the basic or core liberal norms are sufficient for the public justification of M; only political values such as freedom, equality, and fairness are relevant for the public jus­ tification of M.28 Any other values, norms, or doctrines are irrelevant for the justification of M. Thus, a commitment to (4) requires accepting that the use of certain premises—premises which are not accepted as relevant by all rea­ sonable members of the justificatory constituency for determining whether M is justified—is prohibited.29 In other words, given the fact of a reasonable pluralism about what con­ siderations about the good are relevant for the justification of a political measure M (reasonable pluralism about perfectionist evaluative standards), claim (4) is by its very nature anti-perfectionist in character. Any perfectionist justification of M implies that the perfectionist evaluative standards it makes use of are relevant for the justification of M. Consequently, (4) excludes by definition any and all reasons that make use of premises about the good (life) from functioning as relevant justifications of a political measure M. However, the question remains why it is unreasonable to reject (4), that is, to reject the idea that all perfectionist evaluative standards are irrelevant for the justification of a coercive political measure M. It is not enough to define or stipulate that any view which conflicts with this anti-perfectionist idea is unreasonable. A reason or explanation must be given why this is the case. According to Quong, it is unreasonable to reject (4) and to claim that some perfectionist evaluative standards are relevant for the (public) justifica­ tion of M. Those standards are not accepted as being relevant for the justi­ fication of M by the whole justificatory constituency. Thus, accepting such standards implies the rejection of the project of publicly justifying political power as such. Admitting perfectionist standards detaches the legitimacy of the use of political power from the requirement of its public justification.30 Given the fact of reasonable pluralism about perfectionist evaluative standards, it is unreasonable and consequently inadmissible to publicly jus­ tify the use of political power with reasons which depend on the acceptance of certain perfectionist evaluative standards. To do so is supposed to violate a fundamental moral ideal which motivates the project of public reason liberal­ ism: the ideal that citizens as free and equal persons are entitled to justifica­ tions of the restrictions of their liberty.31 In short, according to Quong, it is

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unreasonable to reject (4) because it is immoral, conflicting with a fundamen­ tal moral demand constitutive of public reason liberalism. To be more precise, Quong’s argument is that perfectionist views or doc­ trines which are used as premises in arguments to publicly justify a coercive political measure M are unreasonable because they are “sectarian.” Sectarian premises are views or doctrines which are not accepted as being justificatory relevant for M by all reasonable members of the public P but only a subset S of P, that is, a “sect.”32 Thus, a sectarian argument or reason J for a political measure M which applies to the entire population P is an argument which justifies M only to S but not to P, that is, to non-members of S. Such a jus­ tification violates the aforementioned fundamental moral ideal of liberalism precisely because the imposition of M is not justified by J to non-members of S. If M is enforced on non-members of S by appeal to J, the non-members of S can complain that their status as free and equal persons is violated because M is not justified to them.33 M is not justified to them precisely because M is justified only with a reason J that non-members of S cannot accept as a justificatory reason for M. J uses a premise—for example, a view on human flourishing—which only members of S accept as justificatory relevant. Thus, it seems that someone can reject (4) only if one is willing to give up a moral ideal which derives from a commitment to the liberal ideas expressed by (1), (2), and (3). However, Quong’s argument in support of the claim that it is unreason­ able to reject (4) is flawed because it either commits the fallacy of a non sequitur or is viciously circular. To make his point, Quong needs to claim that it follows necessarily from the use of sectarian premises that the fundamental moral ideal of public reason liberalism is violated.34 Yet, this is not the case. For example, it is possible that members of S justify their preference for M with a sectarian argument J which makes use of premises that are justifica­ tory relevant only for members of S and justify M to the non-members of S with a different argument K which uses only premises that non-members of S acknowledge as relevant for the justification of M. Premises involved in K can be sectarian premises (e.g., norms, values, or doctrines) which only the non-members of S acknowledge as being relevant for the justification of M. Yet what matters is that K provides a justification of M which gives non­ members of S a sufficient or weighty reason to endorse M. In this case, M is publicly justified to non-members of S which means that non-members of S cannot complain that their moral status as free and equal citizens is violated. This example shows that it is possible that sectarian premises are used in public justification without violating the fundamental moral ideal of public reason liberalism deriving from a commitment to the fundamental liberal ideas expressed by (1), (2), and (3). The fundamental moral ideal of public reason liberalism demands only that the coercive use of political power is jus­ tified to all members of the public, using premises which the addressed accept as justificatory relevant. A commitment to this moral ideal does not commit

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one to the epistemic ideal to justify the use of coercive political power to all members of the public only with premises that are accepted by all mem­ bers of the public. In other words, it is possible to reject a certain epistemic definition of reasonableness to which (4) gives expression without rejecting a moral or normative definition of reasonableness with the help of (1), (2), and (3). This result is fatal for Quong’s objection against a perfectionist public reason liberalism because it decisively undermines his claim that all stand­ ard perfectionist justifications are unreasonable and therefore inadmissible in public justification.35 Quong can evade this fallacy of a non sequitur only if he presupposes a consensus account of public reason’s structure according to which only shared or at least accessible reasons (considerations which all members of the public agree are actual or at least possible justificatory reasons) can fig­ ure into the public justification of a coercive political measure M. If such a consensus account of public reason’s structure is presupposed, it follows of course with necessity that some members of the public can complain that M is not publicly justified to them because M is justified with reasons they do not share (or which are not accessible to them). However, by presupposing a consensus account of public reason’s structure, Quong’s argument for the inadmissibility of standard perfectionist justifications of political measures becomes viciously circular. One would have a reason to reject (4) because one is committed to a consensus account of public reason’s structure according to which such justifications are inadmissible. In other words, by presupposing a consensus account, Quong’s argument shows only that the inadmissibility of all standard perfectionist justifications of a political measure M is a logi­ cal consequence of a consensus account of public reason’s structure, but he provides no independent argument for his claim that it is unreasonable to reject (4), that is, the exclusionary anti-perfectionist meta-belief that only core liberal values are relevant for the justification of M.36 Even worse, there exists a good reason to reject the idea that only politi­ cal values such as freedom, equality, and fairness are relevant for the public justification of a coercive political measure M, that is, (4). One should reject such a restrictive conception of public justification because it rests on an unplausible and flawed account of practical reasoning. This becomes evident if we think about that in which good practical reasoning plausibly consists. The aim of practical reasoning is roughly to determine what is best to do in a given situation: which course of action out of a plurality of possibilities ought to be chosen. This aim can be achieved by a person Z only if Z takes into account all the available evidence, considers all the reasons that count in favor of A or B, and all the objections which could be leveled against A and B. Good practical reasoning looks to be all-things-considered-reasoning.37 However, a commitment to (4) demands from the participants of pub­ lic justification to base their public reasoning on a flawed account of prac­ tical reasoning, disconnecting participants from what they are justified to believe to be relevant to determine what is best to do from their particular

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first-personal epistemic standpoints. In other words, (4) imposes on liberal citizens the requirement that they do not take into account all the considera­ tions or reasons which they are justified to believe to be relevant for deter­ mining what is best to do in a given situation. Contrary to Quong’s assertion, public reasoning which is based on an account of all-things-considered-practical-reasoning does not by itself jeop­ ardize the liberal character of democratic societies.38 Perfectionist public reasoning which is based on first-personal all-things-considered-practical reasoning becomes in an objectionable sense “sectarian” only if it is not restricted by the moral ideal of public reason liberalism. We can nevertheless retain a requirement that the imposition of a coercive political measure M must be justified to all members of the liberal public with considerations that they can accept as a weighty or sufficient reason to endorse M by appeal­ ing to a convergence account of justification. According to a convergence conception of public reason’s structure, it is possible to justify publicly one’s political preferences with perfectionist reasons which derive from one’s own all-things-considered-practical reasoning and to justify these preferences to fellow citizens with other reasons which derive from their first-personal accounts of practical reasoning. Thus, to safeguard the liberal character of democratic societies, that is, to protect the moral idea that citizens should be treated as free and equal, it is not necessary to demand that public reasoning should be disconnected from justified first-personal views on what is good for human beings and why it is good. It suffices to demand that each citizen is given a sufficient or weighty reason to comply with the restriction of his or her liberty. Conclusion If the argument I  presented in this chapter is sound, there is a compelling reason to prefer a convergence account of public reason’s structure over a consensus account. Only the former permits to reconcile a public reason liberalism with political perfectionism. The former should be reconcilable with the latter because an anti-perfectionist public reason liberalism imposes severe restrictions on the scope of what liberal states can legitimately do. These restrictions in turn deprive liberal states of important means to ward of illiberal threats to their well-functioning or even their existence. Thus, what speaks in favor of a convergence account of public reason’s structure is that it allows constructing a perfectionist public reason liberalism which is far better suited to deal with anti-liberal and anti-democratic challenges than an anti-perfectionist public reason liberalism. To provide liberal states in this way with more means to counter anti-liberal and anti-democratic tenden­ cies does not untie political legitimacy from public justification. Nor does a convergence account of justification betray the moral ideal which motivates the liberal tradition in political philosophy of which public reason liberalism forms a part.39

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Notes 1 Cf. Jonathan Quong, Liberalism without Perfection (Oxford: Oxford University Press, 2011), 258. As many authors, I use the terms ‘public reason(ing)’ and ‘pub­ lic justification’ interchangeably, see, for example, Ibid., 261. 2 Cf. Ibid., 258; Jonathan Quong, “Public Reason,” in The Stanford Encyclopedia of Philosophy, Spring 2018 ed., ed. Edward N. Zalta, https://plato.stanford.edu/ archives/spr2018/entries/public-reason/, section 5. 3 According to Vallier, an agent X has a sufficient reason R to endorse a political measure M only if X affirms R with adequate standards of inference and evidence and X lacks other reasons that rebut or undercut R, cf. Kevin Vallier, Liberal Politics and Public Faith: Beyond Separation (New York: Routledge, 2014), 27, 104. What I call a ‘weighty reason’ has to meet all the criteria Vallier mentions for a sufficient reason minus the requirement that this reason must also override or defeat reasons that contradict it. The distinction plays no role in the argument I offer in this chapter. However, the distinction makes a difference in other con­ texts as I  have shown elsewhere, see Patrick Zoll, “Religious Reasoning in the Liberal Public from the Second-Personal Perspective: A Defense of an Inclusivist Model of Public Reason Liberalism,” Journal of Ethics and Social Philosophy 20, no. 3 (2021). 4 Cf. Gerald F. Gaus, “The Place of Religious Belief in Public Reason Liberal­ ism,” in Multiculturalism and Moral Conflict, ed. Dimova-Cookson and Peter M. R. Stirk (London: Routledge, 2010), 26; Quong, Liberalism without Perfec­ tion, 264–265; Jeffrey Stout, Democracy and Tradition (Princeton, NJ: Princeton University Press, 2004), 73. The idea of a relevance disagreement is taken over from Quong who calls this kind of disagreement ‘foundational disagreement,’ cf. Quong, Liberalism without Perfection, 193. 5 Cf. Gerald F. Gaus, “Sectarianism without Perfection? Quong’s Political Liberal­ ism,” Philosophy and Public Issues 2, no. 1 (2012); Jonathan Quong, “Liberalism without Perfection: Replies to Gaus, Colburn, Chan, and Bocchiola,” Philosophy and Public Issues 2, no. 1 (2012). 6 In this chapter, I use the term ‘political perfectionism’ only to refer to views which justify a political measure M with reasons whose justificatory relevance depends on the endorsement of a view on the human good or human flourishing, that is, an ethical perfectionism. The term ‘political perfectionism’ is sometimes also used in a different sense, namely, to refer to second-order views according to which not the justification of a political measure M but the justification of one’s preference for a comprehensive or perfectionist liberalism over an anti-perfec­ tionist one should be neutral with respect to conceptions of the good, that is, that this preference should not be justified with reasons whose justificatory relevance depends on the endorsement of a view on the human good or human flourishing, cf. Joseph Chan, “Legitimacy, Unanimity, and Perfectionism,” Philosophy and Public Affairs 29, no. 1 (2000); Patrick Zoll, Perfektionistischer Liberalismus: Warum Neutralität ein falsches Ideal in der Politikbegründung ist (Freiburg im Breisgau: Alber Verlag, 2016), 45–57; Collis Tahzib, “Perfectionism: Political Not Metaphysical,” Philosophy & Public Affairs 47, no. 2 (2019). 7 Cf. Quong, Liberalism without Perfection, 264. I use the terms ‘the human good’ and ‘human flourishing’ interchangeably. 8 The definition for ‘evaluative standard’ is taken over from Gerald F. Gaus, The Order of Public Reason: A  Theory of Freedom and Morality in a Diverse and Bounded World (Cambridge: Cambridge University Press, 2011), 278. 9 Gaus, “Sectarianism”; Gerald F. Gaus and Kevin Vallier, “The Roles of Religious Conviction in a Publicly Justified Polity: The Implications of Convergence, Asym­ metry and Political Institutions,” Philosophy  & Social Criticism 35, nos. 1–2

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(2009); Kevin Vallier, “Against Public Reason Liberalism’s Accessibility Requrire­ ment,” Journal of Moral Philosophy 8 (2011); Kevin Vallier, “Convergence and Consensus in Public Reason,” Public Affairs Quarterly 25, no. 4 (2011); Vallier, Liberal Politics and Public Faith. Cf. Zoll, Perfektionistischer Liberalismus, 360–384. For a detailed account of what intelligibility is and requires, see Vallier, Liberal Politics and Public Faith, 106–108. According to Quong, due to the fact of a reasonable pluralism, “reasonable disa­ greements about the good life between citizens are almost certainly going to be foundational disagreements,” that is, relevance disagreements in my terminology, Quong, Liberalism Without Perfection, 193. Cf. Ibid., 4. Cf. ibid. This is one of the most important historical lessons Germans learned from the failure of the Weimar Republic. It could be objected that not only a convergence but also a consensus account of public reason liberalism allows for the possibility that liberal states can continue to justify certain actions or measures on the grounds that they help or hinder citi­ zens to become the kind of persons on which the well-functioning or even exist­ ence of a liberal democracy depends. A consensus account merely needs to restrict the scope of state neutrality in some way, for example, as in the case of Rawls, to issues of basic justice or constitutive essentials. For example, Rawls argues that within the constitutional framework the state is not only allowed but should actively foster certain civic or political virtues, cf. John Rawls, Political Liberal­ ism, Expanded ed. (New York: Columbia University Press, 2005), 194–195, 466, 470. However, Rawls’s and other similar proposals which try to show that a con­ sensus account can be combined with political perfectionism have been extensively criticized for being incoherent or being vulnerable to the so-called ‘asymmetry­ objection,’ cf. Zoll, Perfektionistischer Liberalismus, 59–119. Partly in response to this critique, Quong and others have developed new consensus accounts of public reason liberalism, cf. Quong, Liberalism without Perfection, 6–7, 192– 220. Characteristic of these accounts is that they reject Rawls’s restriction of the scope of state neutrality. Instead, they argue that the requirement to justify politi­ cal measures only with shared reasons applies to all political decisions, cf. Ibid., 258. In this chapter, I deal only with this newer consensus accounts which—due to their rejection of the scope of state neutrality—do not allow for the possibility of a thick perfectionist state. I am thankful to James Dominic Rooney for making me aware of the need to address this possible worry. Cf. Ibid., 4. Cf. Ibid. Cf. Ibid., 37. Cf. Gaus, “Sectarianism,” 9–10; Quong, Liberalism without Perfection, 8. Cf. Ibid., 291. Cf. Quong, Liberalism without Perfection, 5, 38, 290–291; Quong, “Liberalism without Perfection: Replies,” 54. Cf. Quong, “Liberlism without Perfection: Replies,” 53. Currently, the German state supports these programs with more than 600 million Euros each year. For example, the right-wing party AfD of which parts are observed by the Ger­ man Verfassungsschutz (an agency which aims to protect the German constitu­ tional order by watching over activities which are inimical to this order) due to their affinity to Nazism founded its own affiliated scholarship program and requested to receive funds from the state as the other scholarship programs which

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are affiliated with political parties present in the parliament. However, up to this moment, this request is denied by the parliament—as well as by the German Constitutional Court—and an important argument in the debate is that the state should not nurture forces when there is reasonable doubt about their loyalty to the constitutional order. In other words, this controversy makes evident that the justification of the funding is not neutral regarding the question of what is good and why. Rather, the justification of the denial depends on the perfectionist belief that the values or ways of life favored by a scholarship program run by this party are not worth promoting. The justification of the funding is perfectionist in nature also in an indirect way because the state leaves it to the scholarship programs to select candidates in accordance with the values of the affiliated institutions. For example, the Catholic program prefers candidates whose biographies express a commitment to the spe­ cific values of a Catholic way of life. Thus, the funding of the state rests also on the perfectionist beliefs that liberal or democratic values are not the only values worth promoting and that ways of life which are promoted in this indirect way are better or more worth of promoting than other ways of life for which no pub­ licly funded scholarship program exists. Cf. Quong, Liberalism without Perfection, 291. Cf. Gaus, “Sectarianism,” 11–12; Quong, “Liberalism without Perfection: Replies,” 54–55. Cf. Gaus, “Sectarianism,” 12. Cf. Quong, Liberalism without Perfection, 291. Cf. Ibid. Cf. Gaus, “Sectarianism,” 8–9. Cf. Ibid. Cf. Quong, Liberalism without Perfection, 291. Furthermore, racist and otherwise problematic reasons can still be ruled out by a perfectionist public reason liberalism on the grounds that they are unreasonable in the sense that they contradict or reject the moral or normative ideas to which (1) to (3) give expression to. If Quong does not provide an independent reason for accepting (4), he does not publicly justify (4) to liberal citizens who embrace (1) to (3) but who do not endorse (4). This is indeed problematic because it means that Quong violates his own moral norms. However, it becomes worse because the acceptance of (4) implies a preference for a controversial left-leaning account of morality or the good (life), cf. Gaus, “Sectarianism,” 12–15. Thus, without a public justifica­ tion of (4), Quong’s consensus account imposes not only an epistemic restric­ tion which does not derive from a prior commitment from (1) to (3) but also a controversial conception of the good (life). Thereby, Quong’s sort of liberalism makes itself use of a sectarian justification of political power it aims to disqualify. Thanks to James Dominic Rooney for the suggestion to add this critical remark. Cf. Quong, “Liberalism without Perfection: Replies,” 55. Cf. Ibid. I am thankful to Ralf Klein, James Dominic Rooney, and Olivia Winiger for help­ ful comments on previous versions of this chapter.

References Chan, Joseph. “Legitimacy, Unanimity, and Perfectionism.” Philosophy and Public Affairs 29, no. 1 (2000): 5–42. Gaus, Gerald F. “The Place of Religious Belief in Public Reason Liberalism.” In Multi­ culturalism and Moral Conflict, edited by Dimova-Cookson and Peter M. R. Stirk, 19–37. London: Routledge, 2010.

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———. The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World. Cambridge: Cambridge University Press, 2011. ———. “Sectarianism without Perfection? Quong’s Political Liberalism.” Philosophy and Public Issues 2, no. 1 (2012): 7–15. ———, and Kevin Vallier. “The Roles of Religious Conviction in a Publicly Justified Polity: The Implications of Convergence, Asymmetry and Political Institutions.” Philosophy & Social Criticism 35, no. 1–2 (2009): 51–76. Quong, Jonathan. Liberalism without Perfection. Oxford: Oxford University Press, 2011. ———. “Liberalism without Perfection: Replies to Gaus, Colburn, Chan, and Boc­ chiola.” Philosophy and Public Issues 2, no. 1 (2012). ———. “Public Reason.” In The Stanford Encyclopedia of Philosophy (Spring 2018 Edition), edited by Edward N. Zalta. https://plato.stanford.edu/archives/spr2018/ entries/public-reason/. Rawls, John. Political Liberalism. Expanded Edition. New York: Columbia Univer­ sity Press, 2005. Stout, Jeffrey. Democracy and Tradition. Princeton, NJ: Princeton University Press, 2004. Tahzib, Collis. “Perfectionism: Political Not Metaphysical.” Philosophy  & Public Affairs 47, no. 2 (2019). Vallier, Kevin. “Against Public Reason Liberalism’s Accessibility Requirement.” Jour­ nal of Moral Philosophy 8 (2011a): 366–89. ———. “Convergence and Consensus in Public Reason.” Public Affairs Quarterly 25, no. 4 (2011b): 261–79. ———. Liberal Politics and Public Faith: Beyond Separation. New York: Routledge, 2014. Zoll, Patrick. Perfektionistischer Liberalismus: Warum Neutralität ein falsches Ideal in der Politikbegründung ist. Freiburg im Breisgau: Alber Verlag, 2016. ———. “Religious Reasoning in the Liberal Public from the Second-Personal Perspec­ tive: A Defense of an Inclusivist Model of Public Reason Liberalism.” Journal of Ethics and Social Philosophy 20, no. 3 (2021).

7

Liberal arts and the failures of liberalism James Dominic Rooney

Public reason liberalism is the political theory which holds that coercive laws and policies are justified when and only when they are grounded in reasons of the public. The standard interpretation of public reason liberalism, consensus accounts, claim that the reasons persons share (or that persons can derive from shared values) determine which policies can be justified. Conversely, these accounts insist that, because of the limited character of the reasons peo­ ple share in this way, coercive laws and policies cannot be justified by appeal to reasons that are not publicly accessible, such as reasons whose soundness depends on the truth of religious or “comprehensive” philosophical views (including various forms of liberalism itself). Instead, the demands of public justification require us to appeal only to those reasons appropriately sharable with all other citizens. This is sometimes put as a demand that use of coercive power be neutral among competing comprehensive doctrines which would allow us to identify and promote, for example, good or valuable ways of life.1 John Rawls (a representative public reason liberal) accepted the implica­ tion that liberal government cannot be a community united in the same val­ ues: “the hope of political community must indeed be abandoned, if by such a community we mean a political society united in affirming a general and comprehensive doctrine.”2 For a perfectionist, in sharp contrast, a shared conception of what is truly valuable is part of the good we share by living together in a community, without which human communities fail to flourish. Perfectionists therefore conclude that living in a state governed by principles of justice that abstract from general and comprehensive doctrines about the good life is fundamentally and seriously bad for human beings. Many con­ temporary criticisms of public reason liberalism appeal to perfectionist intui­ tions and argue that liberal institutions do more than fail to promote the full good. Liberal institutions undermine the good of political life. Specifically, critics such as Deneen and MacIntyre think liberalism undermines the pos­ sibility of maintaining the consensus in shared reasons that is necessary for liberal governments to continue in existence. And they argue therefore that liberalism is particularly corrosive with regard to educational arrangements and the maintenance of shared culture. DOI: 10.4324/9781032702766-10

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What I will do in this chapter is argue that, on the one hand, liberal restric­ tions on public justification are too narrow. Competing claims of value in regard to important societal goods such as education and culture cannot be resolved if we are restricted only to appealing to reasons that can be shared by all members of the public, as required by some kinds of public reason lib­ eralism. Fairness only goes so far in adjudicating disputes over, for example, school choice. We need publicly to determine which cultural goods are to be preserved or what values ought to be promoted in educational policy, which inevitably requires appeal to values going beyond those which all members of the public share. On the other hand, there are possibilities that allow us to expand the public reason theory of justification by appealing not only to fully shared reasons, but also to reasons that draw—in limited ways—upon comprehensive doctrines, as long as such reasons are intelligible to all mem­ bers of the public. Such convergence views of public justification provide a basis from which to respond to these communitarian, anti-liberal critiques of liberal arrangements. In conclusion, I  will illustrate that the expanded convergence account can resolve those disputes in regard to either cultural promotion or educational policies, appealing to reasons that derive from Confucian and natural law traditions. 1 The critique Alasdair MacIntyre’s criticism of modern liberal government is that such gov­ ernments are premised on a series of compromises between a range of more-or-less conflicting economic and social interests. . . . [T]he outcome is that although most citizens share, although to greatly varying extents, in such public goods as those of a minimally secure order, the distribution of goods by gov­ ernment in no way reflects a common mind arrived at through wide­ spread shared deliberation governed by norms of rational enquiry.3 The problem for MacIntyre, and perfectionists generally, is that modern liberal regimes seek shallow agreement. Liberal political deliberation has the wrong object in view because it concerns allocation of merely public goods, for example, concerning transportation, defense, and police. A true community, by contrast, is united in deliberating on how to achieve the good, simpliciter, including goods such as culture or religion. Notice that the problem isolated by MacIntyre is not merely the lack of a shared vision. The problem is lack of a common vision among citizens produced by means of the right kind of practical inquiry. Thus, MacIntyre and others feel that there might be elements of modern states that inherently impede or discour­ age shared forms of deliberation that are aimed at comprehensive visions of the good life.

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Deneen’s Why Liberalism Failed argues that many contemporary prob­ lems in American culture can be chalked up to liberal political arrangements. The book is, in many ways, a series of footnotes to MacIntyre’s critique, relying on the claim that liberalism undermines public reasoning indirectly by undermining the conditions which promote the existence of shared values among citizens. Liberalism, Deneen implies, will lead to the eventual loss of legitimacy in use of political power when there are no shared reasons; “the gap grows between what the ideology claims and the lived experience of human beings under its domain until the regime loses legitimacy.”4 The liberal country inevitably devolves, presumably, into a mere modus vivendi regime. Deneen appears more apocalyptic than MacIntyre in holding that lib­ eralism is sinister in providing a cover for others to promote their own ideo­ logical agenda of untrammeled license: “as an ideology, [liberalism] pretends to neutrality, claiming no preference and denying any intention of shaping the souls under its rule. It ingratiates by invitation to the easy liberties, diver­ sions, and attractions of freedom, pleasure, and wealth.”5 Deneen’s claims about public reason liberalism aiming at complete and abstract neutrality, or as requiring skepticism about human nature or the morality, ring false at least when it comes to established representatives of these views. If we focus on Rawls’ version of public reason liberalism, for instance, “neutrality” is not a helpful rubric for understanding the view. Rawls’ vision might be better put as a demand for fairness in adjudicating disputes over policies that employ coercive power, rather than mere neutral­ ity, as Rawls’ vision of public justification involves, first, moral reasons for embracing such limits on power and the corresponding justifications for it,6 and, second, these demands of fairness apply to the “constitutional essen­ tials” rather than to all aspects of government.7 Excluding comprehensive doctrines about which lives are more valuable than others means that, while the liberal state is not a modus vivendi among warring and competing inter­ ests, the moral values that the liberal state can act upon are fundamentally only political values of justice. Even Rawls admits that abiding by our duties of justice to other citizens is good for us,8 but—we might say—the liberal institutional arrangement only allows us to promote (as it were) the bare minimum, as protection of the “right” is the limit of the way in which liberal government can promote the good. For that reason, the cynical and hyper­ bolic insinuation that liberalism is nothing more than a cover for ideological domination, while rhetorically effective, overshoots into ad hominem attacks. Public reason liberalism of Rawls’ kind clearly does reject the use of coercive laws and policies in favor of liberalism itself, skepticism about the moral life, or mere license. Any political theory can be appealed to as an excuse by bad actors. Deneen’s objection is only plausible as alleging an unintended consequence that an overlapping consensus in a liberal society will inevitably devolve in these directions. Nevertheless, Deneen illustrates his apocalyptic claims by appeal to phe­ nomenon in American education and culture. First, “liberalism is eliminating

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liberal education with keen intent and ferocity, finding it impractical both ideologically and economically.”9 Education is important to avoid creating people who are swayed by public reasoning of the right sort, including the very reasons public reason liberals might find appropriate, rather than by mere demagoguery or vain self-interest. Liberal institutions cannot preserve and promote that kind of education necessary for preserving the freedom of society, such as the liberal arts, because to do so would implicitly involve judgments about the value of public deliberation in our lives. Second, lib­ eral institutions are overly cosmopolitan and liberate “the individual from embedded cultures, traditions, places, and relationships [so that] liberalism has homogenized the world in its image.”10 Without a shared public culture, Deneen implies, all citizens have in common are modes of economic and political negotiation among competing interests. Liberal institutions cannot preserve and promote those cultures, traditions, places, and relationships that matter for having shared reasons of the right sort as to constitute more than a modus vivendi regime. In light of these considerations, we can put Deneen’s charge in a way that is less controversial and more politically serious: public reason liberalism is unstable, because liberal institutions do not permit the promotion of what is necessary for the maintenance of shared reasons among reasonable citizens. Rawls offers that the norms of public reason liberalism do not “inform us how to raise our children,” as they do not apply to the internal life of insti­ tutions like families and universities.11 Rawls also insists on “a fair equal­ ity of opportunity” in education, for, “otherwise all parts of society cannot take part in public reason or contribute to social and economic policies.”12 The reason education should be open to all, in justice, is that civic virtue and education in public deliberation are necessary for the maintenance of a well-ordered society. Further, which cultural goods to promote and pre­ serve involves a choice that affects our school curricula and wider culture in much the same way: what pieces of art, buildings, languages, public places, memorials of historical significance, and other elements of wider culture we choose to preserve or promote. Such cultural goods are considered goods not because they are among the “primary goods” aimed at in political life, but because cultural goods are constitutive of or connected intimately with sets of institutions and practices are taken to have intrinsic value of some kind—call what makes a cultural good valuable is, broadly, its connection to valuable “ways of life” that some citizens believe ought to be preserved. Thus, issues of education and culture are deeply linked because they neces­ sitate taking a stand on whether some modes of deliberation or whether some wider cultural practices are more valuable than others; not taking a stand will involve potentially treating publicly reasonable and publicly unreason­ able modes of behavior as morally (or axiologically) equivalent. Public reason liberals already endorse some normative restraints of jus­ tice: their view usually involves endorsing models of “reasonability” and corresponding norms of “toleration” of other reasonable views. The most

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prominent defenders of public reason agree that moral norms of respect for persons undergirds these claims about public reasonability.13 The moral norm of respect for persons is often taken (by political liberals) to entail that state policy must be neutral regarding comprehensive doctrines on which citizens reasonably disagree. Martha Nussbaum exemplifies this liberal posi­ tion when she notes that respect for persons leads to the conclusion that they ought to have lib­ erty to pursue commitments that lie at the core of their identity, pro­ vided that they do not violate the rights of others and that no other compelling state interest intervenes.14 Wall points out that there is an ambiguity in the principle of respect for persons which Nussbaum invokes: we do not necessarily disrespect a person when we hold that their views are unreasonable, even when they are central to their identity.15 The state need not respect every doctrine held by citizens, including those that seem constitutive of one’s personal identity, since those doctrines can be publicly unreasonable. Wall offers pedophilia as one such doctrine; the state is under no obligation to respect the value of pedophilia, even if this were an identity-constitutive doctrine of someone.16 Further, Nussbaum might underrate citizens’ ability to revise their commitments. If persons are such that they are rational agents, with ability to reconsider their positions, then state policies “may respect a person fully even as it seeks to get her to revise her comprehensive commitments in response to the reasons she has for doing so.”17 Even within public reason liberalism, liberals need to draw a distinction between education that promote political values in ways that are publicly reasonable (abiding by the standards of fairness) and those that would be indoctrination. And it is naive to think any educational scheme that pro­ motes political values will not affect and even inform us how to raise our children. Debates about whether public school curricula should insist upon inculcating in students a sense of tolerance for various kinds of sexual orien­ tations and non-traditional marriages are so fraught precisely because these kinds of “tolerant attitudes” indirectly condemn traditional views on which these sexual behaviors are morally blameworthy. Arguments about schools quickly reveal themselves to be arguments about all of the things that adults in liberal democracies prefer to leave up to the individual conscience—because the answers to those ques­ tions touch upon some of our most closely held beliefs about right and wrong, good and evil, truth and lies.18 Even if we can publicly justify the political values insisted upon by public rea­ son liberals are worthwhile in education, there is still the task of determining whether the system is currently structured so as to aim (in practice, if not in

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theory) at excluding other reasonable views and indoctrinating students into liberalism.19 Yet insisting on the norms of fair procedure or equal opportunity can only get us so far in resolving these disputes. Rawlsian public reason might justify policies of school choice, such as to allow variant curricula for those endorsing traditional sexual morality, and public funding so that such cur­ ricula are available to those who would not want their children to be incul­ cated by attitudes they find morally objectionable. But disputes in education often go further than this, centering around what is required for reasonable citizens. Is the “tolerant” attitude toward variant sexual orientations or non­ traditional marriage a requirement of being a reasonable citizen? Should the government’s funds go toward religious schools when those schools reject the reasonability of homosexual ways of life, of transgender persons, and so forth? Should the government be promoting a positive acceptance of these other ways of life in its promotion of civic virtue in public schools, even if it passively tolerates religious schools that reject such acceptance? A  consen­ sus approach to these questions seems infeasible, given that it appears as if we have no shared reason to accept what appears to be a partisan, poten­ tially ideological account of public “reasonability.” Some defenders of public reason liberalism have argued that there can be no independent reasons to endorse a liberal account of reasonability. Quong thus argues that liberal­ ism should not be expected to provide an answer to the “external” ques­ tion, “Why be liberal at all?”20 I argued above, however, that disputes within education policy largely rests on questions of why to accept one account of reasonability over another. If so, we have further reason to believe that the consensus approach cannot seem in principle to answer the question as to why individuals should accept a program for liberal civic education. The same goes mutatis mutandis for promotion of cultural goods, which are justi­ fied as partially constituting valuable ways of life. 2 A convergence rather than a consensus Rawls’ approach to public reason exemplifies a requirement that there be a consensus among shared public reasons as the only permissible basis for coer­ cive laws and policies. However, I tried to motivate that this consensus view of public justification seems to encounter difficulties in justification of the public promotion of valuable ways of public deliberation, as well as selecting among valuable cultural or civic goods, both of which undergird the pos­ sibility of agreement in public reasons. But consensus views are not the only public reason views available. Some deny that public justification requires that every member of the public have shared reasons for endorsing a policy, but only that each has a reason on which that policy is reasonable for them.21 If both A and B share a reason R that makes a regime reasonable for them, then the justification of the regime is grounded in their consensus

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with respect to R. If A has a reason Ra that makes the regime reason­ able for him, and B has a reason Rb that makes the regime reasonable for her, then the justification of the regime is based on convergence on it from separate points of view.22 On convergence accounts of public justification, reasons to endorse coercive laws/policies do not even need to be mutually accessible in order to properly ground agreement among citizens. Vallier argues that this renders convergence preferable to consensus, because a requirement only that each citizen has a reason which justifies a policy for themselves respects reasonable pluralism more than the need for shared reasons and places less burdens on individual liberty.23 The convergence account relies on the common intuition of social contract theories that “government institutions are justified to the extent that they can resolve disputes about rankings.”24 Consequently, there is no reason to criticize the “emergent” principles of justice selected according to such decision procedures converged upon by all parties, even if those procedures are not endorsed by all members of the public for the same reasons. What follows is an attempt to apply the convergence account to the issues of public deliberation, in the context of education policy, as well as pres­ ervation/promotion of cultural goods, and thereby illustrate the usefulness of convergence accounts of justification to political disputes that might be difficult for consensus accounts to resolve. The convergence account is sus­ ceptible of a number of further criticisms, which I  will not review exten­ sively here.25 I will instead argue that convergence accounts can be used to justify decision procedures for contentious cases involving institutions that indirectly promote shared forms of deliberation. The application of conver­ gence justification to the issue of institutions which support public delibera­ tion might incidentally address some of these criticisms. While convergence accounts do not require shared reasons among all members of the public as a condition of public deliberation, convergence accounts might ironically pro­ vide a justification for promoting those necessary conditions for arriving at greater consensus of shared reasons among citizens than consensus accounts of justification can provide. I will hereafter take for granted a convergence account of public reason and aim to operate within its scope. 3 Education and institutional support for public deliberation A classical liberal arts education, of which John Henry Newman is a wellknown advocate and which he in turn inherits from the Aristotelian tradi­ tion, is a sort of educational practice which aims explicitly at imparting more than mere knowledge: This process of training, by which the intellect, instead of being formed or sacrificed to some particular or accidental purpose, some specific trade or profession, or study or science, is disciplined for its own sake,

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for the perception of its own proper object, and for its own highest cul­ ture, is called Liberal Education. . . . [T]o set forth the right standard, and to train according to it, and to help forward all students towards it according to their various capacities, this I conceive to be the business of a University.26 The content of liberal arts education involves a “canon” of classics, foster­ ing students to develop independent attitudes and modes of thinking about such classics in a humanistic mode. Classical liberal education aims to be compatible with education in other subjects, such as medicine or STEM disci­ plines, by having that humanistic study of classics serve as a propaedeutic or foundation for further studies. My aim is not so much as to attempt to define/ characterize a particular model or essential set of characteristics of liberal arts education as to highlight the way in which the educational model itself aims at preparing students to engage in patterns of reasoning and delibera­ tion that are valuable in addition to the content studied. Such classics-oriented approaches to education are not by any means unique to Newman’s Victorian England or to Aristotle. Indeed, many cul­ tures are familiar with the sort of education Newman is advocating. For example, classical education taking its departure in study of the Chinese classics became a model that spread throughout Asia. An integral part of Mencius’ promotion of the good life, for example, was promoting the study of the Confucian canon in country schools (as was the case in China until recent times). Mencius sees moral benefits in such a program, such as pro­ moting filial piety: “Let careful attention be paid to education in schools, inculcating in it especially the filial and fraternal duties, and grey-haired men will not be seen upon the roads, carrying burdens on their backs or on their heads.”27 Zhu Xi more broadly claims, “literature carries the [Dao] much as a carriage carries things.”28 For the Confucian, study of classics is primarily intended to pass along the right views about what it is to live a good life.29 Yet Zhu Xi also notes that study of literature only gives one the tools with which to pursue a good life, and reading alone does not mandate one accept or interpret these texts correctly.30 The moral valence to such education is not that of teaching someone the moral truth, but learning to engage in appropri­ ate modes of reasoning that will benefit one in practical situations, whether politics or individual moral cultivation—which has led some Confucians to defend classical Confucian education as publicly justified within a democratic and constitutional framework.31 Newman explicitly ties the purpose of liberal education to politics: “train­ ing of the intellect, which is best for the individual himself, best enables him to discharge his duties to society.”32 What we might say, consequently, is that liberal arts education aims to form citizens who can virtuously engage in public reasoning. Education does so by providing citizens with skills to ren­ der their reasons intelligible to others and to aim to understand the reasons of other citizens. Liberal arts aim, therefore, at enhancing a kind of moral,

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civic trust among citizens by enabling a citizen to “to accommodate himself to others, how to throw himself into their state of mind, how to bring before them his own, how to influence them, how to come to an understanding with them, how to bear with them.”33 Even Shun, a nominal critic of “liberal education,” aptly expresses Newman’s own ideal in his claim that classical Confucian education aims at the forming of life-long aspirations, backed by the development and personal embodiment of a broad world view as well as a deep ethical sense, [which shape] the student to become a person of broad vision and with a sense of mission to serve the public realm.34 Study of classics aims to give students cultural resources that make them competent practical reasoners, without aiming to indoctrinate students into holding any particular views. Policies promoting ritual or classical education do not therefore require mandating acceptance of a certain set of comprehen­ sive doctrines. These policies aim at facilitating a shared set of resources for deliberating about the good life and at promoting valuable kinds of delibera­ tion. Certainly, the promotion of classical education involves holding that some kinds of deliberation are more valuable than others. But the value of classical education can be recognized from within different comprehensive accounts of value, and, given that these reasons are mutually intelligible across such accounts, promotion of classical education can be publicly justi­ fied on account of this convergence of support even without strictly shared reasons for doing so. Distinct perspectives, such as those represented by Newman or Confucians, can have mutually intelligible reasons for support­ ing such education, despite having potentially distinct accounts of the way in which such education supports the right moral culture for a state to flourish as a community.35 Even if there is no shared canon of those works to count as “classics,” there is nevertheless good reason to believe that state promotion of liberal arts education can be justified on a convergence account precisely insofar as Confucians and Aristotelians converge upon state promotion of liberal arts education which aims at promoting civic virtue of a kind—liberal arts or classical education promotes valuable modes of public deliberation.36 Similarly, the civic virtues associated with liberal arts education can be suitably extended to the other valuable ways of life that are instantiated by cultural goods—if civic virtue involves being able to appreciate the reasons of others, it can equally incorporate the ability to appreciate and preserve valuable ways of life associated with the culture of our nation. The Confu­ cian notion of “ritual propriety,” or li 礼, is wide, as li can refer both to a set of practices (“rituals”) that form one to engage in virtuous behavior of right relationship to other people and to one of the “cardinal virtues” of Confu­ cianism, a virtue of self-restraint by which one acts in accord with those ritu­ als (analogous to temperance). We might understand the role of these rituals

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as aiming to foster appropriate attitudes or behaviors in regard one’s place in the community. As a set of practices that form one to engage appropriately in the life of the community, Confucians place significant emphasis on li in governmental policy37: If you try to guide the common people with coercive regulations . . . and keep them in line with punishments, the common people will become evasive and will have no sense of shame. If, however, you guide them with Virtue, and keep them in line by means of ritual, the people will have a sense of shame and will rectify themselves.38 Confucian rituals aim quite literally at making people cultured. Promoting ritual behavior does not require agreement on religious or political compre­ hensive doctrines, even if it does embrace a certain normative conception of cultural or civic life. The normative conception of the cultural life aims indi­ rectly at promoting beliefs and emotional response, but the promotion of rit­ ual behavior governs external conduct, not at beliefs.39 Yet, while Confucian rituals do not necessarily aim at changing beliefs,40 and while many citizens might find the reasons for Confucian rituals intelligible, it is not likely that there would be convergence around the state enforcement of such rituals. For example, Catholics might find their faith to conflict with performance of ritual homage to Confucius. Cultural practices usually involve, indirect and to some extent, endorsement of or assumptions about comprehensive doctrine, because human life does so. Nevertheless, there is conversely a public dimension to the preservation of cultural goods associated within those countries where Confucian ritu­ als are culturally significant. In Taiwan, Japan, and South Korea, govern­ ments often support Confucian or Shinto ritual under the aspect of cultural goods—for example, local temple events of long-standing significance, ven­ eration of Confucius during “Teacher’s Day,” or the promotion of Confu­ cian filial piety—and so fall under provisions similar to those embodied in Article 9 of the Constitution of the Republic of Korea that “the State shall strive to sustain and develop its cultural heritage.”41 The preservation of such ritual practices aims to preserve valuable ways of life, which involve compre­ hensive doctrines, but this does not stop others from finding such practices to have value that can justify their preservation. Catholics might not agree that all aspects of Confucian rituals, as traditionally practiced, are morally acceptable. Nevertheless, Catholics have reason to see that, when shorn of any questionable aspects, Confucian rituals are valuable not only because they constitute a cultural heritage, but even insofar as those rituals express moral/religious convictions that Catholics share. Thus, within Asian coun­ tries where these rituals are of long-standing cultural heritage, the Catholic Church encourages incorporating these rituals within its own liturgy. Even if we do not share all the same reasons for preserving a given cultural practice

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or way of life, we can still justify their public preservation insofar as we appreciate them for our own good reasons—we can converge. Conclusion Publicly promotion of education as well as of cultural goods clearly needs to be publicly accountable. A  helpful distinction proposed by Vallier can help make sense of this: convergence accounts support a principle of restraint for public institutions and officials, “limiting state power through institutional design and demanding that political officials be sensitive to whether the coer­ cion they propose can be justified to each person,” rather than a principle of restraint on citizens’ reasoning.42 Natural law thinkers have often advocated that the government’s role in education is subsidiary, precisely on the basis that civic virtue is best inculcated by civil society (e.g., families, churches), and thus have—for example—advocated school choice schemes.43 Similarly, families, churches, temples, and other agents in civil society are the primary agents for preservation or promotion of cultural goods, not the national government. The convergence model of justification allows that citizens might have rea­ sons to allow the government to facilitate civil society organizations in these endeavors and that there might be appropriate convergence for endorsing these proposals around, for example, liberal arts education, even if citizens do not share the same reasons. The convergence model therefore also seems to honor practices of real-world citizens, where state promotion of cultural goods or of liberal education can help sustain the preconditions for good public reasoning. The value of the convergence approach, then, is global. It might be true that there is a point at which we cannot offer strictly public reasons—that is, reasons which are fully shared by the public—for embracing a particular account of political reasonability. Yet we can reject the need for an account of public reason to require such shared reasons and embrace an account of reasonability which depends on other factors. Specifically, I  want to sug­ gest briefly in concluding that the way I have argued for public justification of liberal arts education and promotion of cultural goods on the basis of a convergence model of justification is not incidentally tied to an account of civic virtue. Vallier, for example, focuses on civic trust as both a precondition for and the basis of public justification.44 Conversely, an account of public reasoning as involving dispositions to engage in public reasoning on the basis of mutually intelligible reasons is closer to a classical virtue-based account of political prudence than that which requires an overlapping consensus of shared reasons and norms among all citizens—convergence can be conceived to foster the civic virtues which sustain public trust, rather than achieving consensus. Convergence gives us a richer potential account of these virtues than those proposed by Rawls.45 A  convergence account of justification might thus allow us to mount a publicly reasonable defense of public reason itself because—as in the realm of ethics—it is often easier to find convergence among our account of the virtues rather than in fully shared norms.

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Notes 1 For example, Ronald Dworkin, “Liberalism,” in Public and Private Morality, ed. S. Hampshire (Cambridge: Cambridge University Press, 1978), 113–143; Bruce Ackerman, Social Justice and the Liberal State (New Haven, CT: Yale University Press, 1980); Charles Larmore, Patterns of Moral Complexity (Cambridge: Cam­ bridge University Press, 1987); John Rawls, Political Liberalism, Expanded ed. (New York: Columbia University Press, 2005). 2 John Rawls, “The Ideal of an Overlapping Consensus,” in Oxford Journal of Legal Studies 7 (1981): 10. 3 Alasdair MacIntyre, Dependent Rational Animals (Chicago, IL: Open Court Press, 1999), 130–131. 4 Patrick Deneen, Why Liberalism Failed (New Haven, CT: Yale University Press, 2018), 6.

5 Ibid., 5.

6 See Political Liberalism, 145–148.

7 Political Liberalism, 137.

8 For example, Political Liberalism, 204, 320.

9 Deneen, 13.

10 Ibid., 18. 11 John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 158–160. 12 Ibid., 50. 13 Jonathan Quong, “Public Reason,” in The Stanford Encyclopedia of Philoso­ phy (Spring 2018 ed., ed. Edward N. Zalta), https://plato.stanford.edu/archives/ spr2018/entries/public-reason/ 14 Martha C. Nussbaum, “Perfectionist Liberalism and Political Liberalism,” Phi­ losophy and Public Affairs 39, no. 1 (2001): 17. 15 Steven Wall, “Perfectionism, Reasonableness, Respect,” in Political Theory 42, no. 4 (2014): 478. 16 Ibid., 482. 17 Ibid. 18 Elizabeth Bruenig, “Kids Have No Place in a Liberal Democracy,” The Atlantic (February  15, 2022), www.theatlantic.com/ideas/archive/2022/02/kids-liberal­ democracy-schools/622084/. See further, Thomas Howes, “Public Education and Liberal Neutrality,” Public Discourse (September 28, 2021), www.thepublicdis­ course.com/2021/09/78148/. 19 James Scott Johnston, “Rights and Goods: Procedural Liberalism and Educational Policy,” Educational Theory 57, no. 4 (2007): 469–488; see also his: “Rawls’s Kantian Educational Theory,” Educational Theory 55, no. 2 (2005): 201–218. 20 Jonathan Quong, Liberalism without Perfection (Oxford: Oxford University Press, 2010), esp. 137–160. 21 Paul Billingham, “Convergence Justifications within Political Liberalism: A Defence,” Res Publica 22, no. 2 (2016): 135–153; Billingham, “Convergence Liberalism and the Problem of Disagreement Concerning Public Justification,” Canadian Journal of Philosophy 47, no. 4 (2017): 541–564; Gerald Gaus, “The Place of Religious Belief in Public Reason Liberalism,” in Multiculturalism and Moral Conflict, ed. M. Dimova-Cookson and P. Stirk (New York: Routledge, 2009), 19–37; Gaus, The Order of Public Reason (Cambridge: Cambridge Uni­ versity Press, 2011), 276–292; Gerald Gaus and Kevin Vallier, “The Roles of Reli­ gious Conviction in a Publicly Justified Polity: The Implications of Convergence, Asymmetry, and Political Institutions,” Philosophy & Social Criticism 35, no. 1 (2009): 51–76; Jeffrey Stout, Democracy and Tradition (Princeton, NJ: Prince­ ton University Press, 2004), 72–73; Kevin Vallier, Liberalism and Public Faith:

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Beyond Separation (New York: Routledge, 2014); Vallier, “Public Justification vs Public Deliberation: The Case for Divorce,” Canadian Journal of Philosophy 45, no. 2 (2016): 139–158. 22 Fredrick D’Agostino, Free Public Reason: Making It Up as We Go (New York: Oxford University Press, 1996), 30. 23 Kevin Vallier, “Convergence and Consensus in Public Reason,” Public Affairs Quarterly 25, no. 4 (2011): 263–265. 24 Ibid., 267. 25 See Stephen Macedo, “Why Public Reason? Citizens’ Reasons and the Constitu­ tion of the Public Sphere” (August 23, 2010), https://ssrn.com/abstract=1664085 or http://dx.doi.org/10.2139/ssrn.1664085; Quong, Liberalism without Perfec­ tion, 261–273; and further Steven Wall, “Public Reason and Moral Authoritari­ anism,” The Philosophical Quarterly 63, no. 250 (2013): 160–169. 26 John Henry Newman, “Knowledge Viewed in Relation to Professional Skill,” in Idea of a University, new impression (London: Longmans, Green, and Co., 1907), 152–153. 27 The Works of Mencius [Mengzi], trans. James Legge (Oxford: Clarendon Press, 1985), 1A.3. 28 Zhu Xi, Selected Writings, ed. Philip Ivanhoe, trans. On-Cho Ng (Oxford: Oxford University Press, 2019), chap. 4, no. 38. 29 C.f., On-Cho Ng, “Poetry, Literature, Textual Study, and Hermeneutics,” in Zhu Xi: Selected Writings (op. cit.). 30 For example, Zhu Xi, chap. 4, nos. 41–42. 31 See, for example, Sungmoon Kim, Public Reason Confucianism: Democratic Per­ fectionism and Constitutionalism in East Asia (New York: Cambridge University Press, 2016). 32 John Henry Newman, “Knowledge Viewed in Relation to Professional Skill,” in Idea of a University, new impression (London: Longmans, Green, and Co., 1907), 177. 33 Ibid., 178. 34 Shun Kwong-Loi, “Confucian Learning and Liberal Education,” Journal of EastWest Thought 6, no. 2 (June 2016): 18. 35 See further, Shirong Luo, “Happiness and the Good Life,” in Dao 18, no. 1 (2019): 41–58; Kurtis Hagen, “Confucian Education: From Conformity to Cultivating Personal Distinction,” Dao (2022): https://doi.org/10.1007/s11712-022-09826-y. 36 The topic is vast and I cannot do justice here to the debates within the literature, so this remark is intended only to illustrate the connection between a justification for liberal arts education policy, on the basis of convergence among these compre­ hensive views, and a more robust account of civic virtue than public reason liber­ als would be ordinarily willing to accept. See Jack Crittenden and Peter Levine, “Civic Education,” in The Stanford Encyclopedia of Philosophy, Fall 2018 ed., ed. Edward N. Zalta, https://plato.stanford.edu/archives/fall2018/entries/civic­ education/. For an educational perspective, see Christpher Martin, “Philosophy of Education in the Public Sphere,” Studies in Philosophy of Education 30 (2011): 615–629, DOI 10.1007/s11217–011–9260–9; Judith Bessant, “A  Dangerous Idea? Freedom, Children and the Capability Approach to Education,” Critical Studies in Education, Vol. 55, No. 2 (2014): 138–153, http://dx.doi.org/10.1080 /17508487.2014.873368. 37 For example, Ana S. Iltis, “Ritual as the Creation of Social Reality,” in Ritual and the Moral Life, ed. David Solomon, Ruiping Fan, and Ping-Cheung Lo (New York: Springer, 2012), 39; Stephen Angle, Sagehood (Oxford: Oxford University Press, 2009), 167–170. 38 The Analects, trans. Edward Slingerland (Indianapolis, IN: Hackett Publishing Co., 2003), 2.3. 39 C.f., Robert George, Making Men Moral (Oxford: Clarendon Press, 1993), 76.

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40 See Angle, 202–203. 41 For example, Marie Seong-Hak Kim, “Confucianism That Confounds: Con­ stitutional Jurisprudence on Filial Piety in Korea,” in Confucianism, Law, and Democracy in Contemporary Korea, ed. Sungmoon Kim (London: Rowman & Littlefield, 2015), 57–80. 42 Vallier, “Public Justification Versus Public Deliberation: The Case for Divorce,” 156. 43 See John Finnis, “Virtue and the Constitution,” in Human Rights and the Com­ mon Good (Oxford: Oxford University Press, 2011), 107–116, esp. 113–116. 44 Kevin Vallier, Must Politics Be War? (Oxford: Oxford University Press, 2019), 47–78. 45 Political Liberalism, 195.

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———, and Kevin Vallier, “The Roles of Religious Conviction in a Publicly Justified Polity: The Implications of Convergence, Asymmetry, and Political Institutions,” Philosophy & Social Criticism, 35, 1 (2009): 51–76. George, Robert. Making Men Moral. Oxford: Clarendon Press, 1993. Hagen, Kurtis. “Confucian Education: From Conformity to Cultivating Personal Dis­ tinction,” Dao (2022), https://doi.org/10.1007/s11712-022-09826-y. Iltis, Ana S. “Ritual as the Creation of Social Reality,” in Ritual and the Moral Life, eds. David Solomon, Ruiping Fan, and Ping-cheung Lo (New York: Springer Dordrecht, 2012). Johnston, James Scott. “Rawls’s Kantian Educational Theory,” Educational Theory, 55, 2 (2005): 201–218. ———. “Rights and Goods: Procedural Liberalism and Educational Policy,” Educa­ tional Theory, 57, 4 (2007): 469–488. Kim, Marie Seong-Hak. “Confucianism that Confounds: Constitutional Jurispru­ dence on Filial Piety in Korea,” in Confucianism, Law, and Democracy in Contem­ porary Korea, ed. Sungmoon Kim (London: Rowman & Littlefield, 2015), 57–80. Kim, Sungmoon. Public Reason Confucianism. Cambridge: Cambridge University Press, 2016. Larmore, Charles. Patterns of Moral Complexity. Cambridge: Cambridge University Press, 1987. Luo, Shirong. “Happiness and the Good Life,” Dao, 18, 1 (2019): 41–58. Macedo, Stephen. “Why Public Reason? Citizens’ Reasons and the Constitution of the Public Sphere” (August 23, 2010), https://ssrn.com/abstract=1664085 or http:// dx.doi.org/10.2139/ssrn.1664085 MacIntyre, Alasdair. Dependent Rational Animals. Chicago, IL: Open Court Press, 1999. Martin, Christopher. “Philosophy of Education in the Public Sphere,” Studies in Philosophy of Education, 30 (2011): 615–629, http://dx.doi.org/10.1007/ s11217-011-9260-9. Mencius. The Works of Mencius [Mengzi]. Trans. James Legge. Oxford: Clarendon Press, 1985. Newman, John Henry. Idea of a University. New impression. London: Longmans, Green, and Co., 1907. Ng, On-cho. “Poetry, Literature, Textual Study, and Hermeneutics,” in Zhu Xi: Selected Writings (Oxford: Oxford University Press, 2019). Nussbaum, Martha C. “Perfectionist Liberalism and Political Liberalism,” Philoso­ phy and Public Affairs, 39, 1 (2001): 17. Quong, Jonathan. Liberalism Without Perfection. Oxford: Oxford University Press, 2010. ———. “Public Reason”, in The Stanford Encyclopedia of Philosophy (Spring 2018 Edition), ed. Edward N. Zalta, https://plato.stanford.edu/archives/spr2018/entries/ public-reason/. Rawls, John. “The Ideal of an Overlapping Consensus,” Oxford Journal of Legal Studies, 7 (1981): 10. ———. The Law of Peoples. Cambridge, MA: Harvard University Press, 1999. ———. Political Liberalism. Expanded edition. New York: Columbia University Press, 2005. Shun, Kwong-loi. “Confucian Learning and Liberal Education,” Journal of East-West Thought, 6, 2 (June 2016): 18.

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Stout, Jeffrey. Democracy and Tradition. Princeton, NJ: Princeton University Press, 2004. Vallier, Kevin. “Convergence and Consensus in Public Reason,” Public Affairs Quar­ terly, 25, 4 (2011): 263–265. ———. Liberalism and Public Faith: Beyond Separation. New York: Routledge, 2014. ———. “Public Justification vs Public Deliberation: The Case for Divorce,” Canadian Journal of Philosophy, 45, 2 (2016): 139–158. ———. Must Politics be War? Oxford: Oxford University Press, 2019. Wall, Steven. Liberalism, Perfectionism, and Restraint. Cambridge: Cambridge Uni­ versity Press, 2001. ———. “Public Reason and Moral Authoritarianism,” The Philosophical Quarterly, 63, 250 (2013): 160–169. ———. “Perfectionism, Reasonableness, Respect,” Political Theory, 42, 4 (2014): 478. Zhu Xi. Zhu Xi, Selected Writings. Ed. Philip Ivanhoe. Trans. On-Cho Ng. Oxford: Oxford University Press, 2019.

8

Perfectionism, political justification, and Confucianism Franz Mang

1 Perfectionism and anti-perfectionism In Anglo-American political philosophy, perfectionism is the view that the state may, or should, promote valuable conceptions of the good life and dis­ courage conceptions that are bad or worthless. A conception of the good life is a more or less systematic view of what constitutes “the good life” and how those elements pertain to a person’s well-being, quality of life, moral char­ acter, and so on. Note that contemporary perfectionists rarely, if ever, assert that citizens ought to become perfect human beings. They only argue that the state is permitted to make a wide range of policies with the aim of helping citizens to lead flourishing lives. These policies, commonly found in mod­ ern liberal societies, may include the following: preserving cultural heritage, subsidizing art galleries and museums, conserving nature and biodiversity, providing free access to reading materials, encouraging athletic excellence, and educating citizens about the harm of recreational drugs. But many political philosophers think that perfectionism is unjustified. One of the sustaining anti-perfectionist arguments concerns the fact that rea­ sonable people can disagree deeply about what constitutes the good life. John Rawls has famously claimed that human beings are subject to the burdens of judgment, and so they can have reasonable disagreements over a broad range of ethical, religious, and political issues.1 These burdens, Rawls says, are “the many hazards involved in the correct (and conscientious) exercise of our powers of reason and judgment in the ordinary course of political life.”2 He states that there are at least six burdens of judgment: (1) the evidence bearing on the case is conflicting and complex; (2) even where we agree fully about the kinds of considerations that are relevant, we may disagree about their weight; (3) moral and political concepts are vague and subject to hard cases—cases in which it is particularly difficult to make a judgment; (4) in complex modern societies, our total experience, which shapes how we assess evidence and weigh values, is likely to differ widely from person to person; (5) different kinds of normative considerations are involved on both sides of an issue, making overall assessment difficult; and (6) being forced to select among cherished values, we face great difficulty in setting priorities.3 DOI: 10.4324/9781032702766-11

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Many liberal philosophers endorse Rawls’s account of reasonable disa­ greement, and have argued against perfectionism.4 Their arguments usually go something like this: (P1) people can have reasonable disagreements about the good life; (P2) the state (or citizens and state officials) should give due respect to each citizen in public political discussions when the justification of the exercise of political power is at issue—that is, when political justification is at issue; (P3) the state is not permitted to appeal to any conception of the good life when political justification is at issue, at least when constitutional essentials or basic matters of justice are at stake (by P1 and P2); (P4) perfec­ tionist policymaking inevitably appeals to some conception(s) of the good life; and (C) therefore, the state is not permitted to make perfectionist poli­ cies, at least when constitutional essentials or basic matters of justice are at stake (by P3 and P4). 2 Two types of perfectionist theory We have just seen a common line of anti-perfectionist argument. Perfection­ ists have resisted this line in many ways. Basically, they think that it is not necessarily disrespectful or otherwise morally wrong for the state to appeal to some conception of the good life in the process of political justification. In resisting the anti-perfectionist argument, a perfectionist can endorse either comprehensive or moderate perfectionism. Let us distinguish them in the following. Comprehensive perfectionism as a type of perfectionist theory maintains that perfectionism should be grounded in some comprehensive moral doc­ trine or conception. As such, a comprehensive perfectionism is grounded in a particular comprehensive moral doctrine. Such moral doctrine is compre­ hensive in the sense that 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 con­ duct, and in the limit to our life as a whole.5 To comprehensive perfectionists, it is not necessarily disrespectful for the state to promote a comprehensive moral doctrine if the doctrine is sound or true.6 Some political philosophers can be properly regarded as comprehen­ sive perfectionists. For example, Thomas Hurka bases his perfectionism in a particular Aristotelian doctrine of human nature; Joseph Raz bases his per­ fectionism in a particular ethical doctrine of autonomy; and Jiang Qing bases his perfectionism in a particular Confucian doctrine of morality.7 By contrast, moderate perfectionism as a type of perfectionist theory claims that it is unnecessary to base perfectionism upon any comprehensive moral doctrine.8 A moderate perfectionism, therefore, is not based upon any com­ prehensive moral doctrine but appeals to piecemeal and noncomprehensive

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judgments about the good life. To moderate perfectionists, the state has strong reasons not to promote any comprehensive moral doctrine. One rea­ son is that state pursuit of any comprehensive moral doctrine will easily dam­ age civility, which is the attitude of fellow citizens toward each other that shows a concern for the common bond despite differing opinions or conflicts of interest.9 Given that citizens can reasonably disagree over many ethical, political, and religious issues, civility requires citizens to care for each other’s sense of self-worth and to justify their views in a way that one can reasonably expect others to accept.10 From the standpoint of moderate perfectionists, citizens and officials may, in the process of political justification, appeal to judgments about the good life that are piecemeal, widely accepted, and not highly controversial. Call these judgments moderate perfectionist judgments. Consider the following judgments: “deep personal relations contribute to a person’s good life”; “aes­ thetic experience contributes to a person’s good life”; and “courage contrib­ utes to a person’s good life.” These judgments are piecemeal as they do not cover the major religious, philosophical, and moral aspects of human life in a systematic way, so they are freestanding from comprehensive moral doc­ trines. In addition, they do not seem to be highly controversial; it appears, in fact, that people living in modern liberal societies widely endorse them. Furthermore, many of them seem to be epistemically sound. For instance, it seems very difficult to deny that aesthetic experience contributes to a person’s good life, that deep personal relations contribute to a person’s good life, and that courage contributes to a person’s good life. The same can be said about the values of understanding, practical reason, moral integrity, perseverance, leisure, and so on. For example, the following two judgments about the good life are not associated with any particular comprehensive moral doctrine. But they seem convincing and widely accepted: Human relationships (at least the mutually respectful ones) contribute to the good life: We humans occasionally feel bored, lonely, stressed, pessimistic, or even depressed. Spending time with our intimates and friends is one of the best ways of resisting these unpleasant states. More positively, in most cases when we feel happy about something, we feel even happier if we can share our joy with our intimates and friends. In fact, those who have deep personal relations with us are generally will­ ing to offer material and spiritual support when we want to accomplish things that we consider important. Without their help, we would have to fight very hard for the good life, and our lives would be much more difficult. In addition, human relationships are usually valuable in and of themselves, as we like and care about certain people. Based on all of the above considerations, it is plausible to say that a life with no deep relationship with any other person is very likely lonely, boring, and inauthentic.

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Hard-drug addiction is seriously harmful: Hard-drug addicts gen­ erally have serious health problems, which include mania, paranoia, depression, schizophrenia, and decreased organ function.11 Overdoses of any kind of hard drug can cause death. If the addict chooses to quit the drugs after prolonged addiction, he or she would suffer a series of painful withdrawal symptoms, such as malaise, severe muscle aches, diarrhea, and so forth. On cession of using hard drugs, the addict usu­ ally cannot reason in a normal manner. Due to serious health problems and emotional problems, many hard-drug addicts are alienated from normal personal relations.12 In short, because moderate perfectionist judgments are not tied to any comprehensive moral doctrine and because citizens holding divergent com­ prehensive religious and moral doctrines can widely share them, it seems that citizens and officials can preserve civility and need not cause hostility in appealing to these judgments in the process of legislation and public policy­ making.13 Let us turn to consider some criticisms of moderate perfectionism. 3 In defense of moderate perfectionism Steven Wall has defended comprehensive perfectionism in some of his writ­ ings,14 and, more recently, he has argued that comprehensive perfectionism “need not be rigid, uncivil, hostile to compromise and averse to pluralism.”15 He is puzzled as to why Joseph Chan claims that perfectionism should take the moderate form.16 To Wall, one can present (for example) comprehen­ sive Confucianism in a favorable light as a comprehensive perfectionist doc­ trine that takes civility seriously and refrains from pursuing the whole truth and the attendant uncivil policies. So, in Wall’s view, no significant differ­ ence may exist between comprehensive and moderate perfectionism since a comprehensive perfectionism can spell out why civility matters and why it is inappropriate for citizens and officials to use political power to impose a comprehensive moral doctrine on the whole citizenry. If Wall is right, it would seem unnecessary to propose moderate perfectionism. As an initial response, note that there is a crucial difference between com­ prehensive and moderate perfectionism: while comprehensive perfectionists claim that perfectionism should be grounded in some comprehensive moral doctrine, moderate perfectionists deny that it should be. A  comprehensive perfectionist might raise the following challenge: Should moderate per­ fectionism not rest on some comprehensive moral doctrine in order to be fully justified? Consider civility. To moderate perfectionists, civility’s great value per se explains why citizens should appeal to moderate perfection­ ist judgments rather than to any comprehensive moral doctrine in political justification. However, if moderate perfectionists are to provide a complete philosophical justification—through addressing fundamental questions in ethics, metaphysics, and epistemology—for the value of civility, then they

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must appeal to some comprehensive moral doctrine, such as an Aristotelian doctrine of ethics. In response, moderate perfectionists can clarify that they refrain from giv­ ing complete philosophical justifications for the value of civility and for mod­ erate perfectionist judgments. For, as long as there are sufficient freestanding reasons—that is, reasons that are not based upon the truth of any particular comprehensive moral doctrine—that show that moderate perfectionist judg­ ments are convincing and that civility is crucial for mutually respectful social cooperation, it is unnecessary for moderate perfectionists (and, as well, for citizens in political justification) to give complete philosophical justifications for moderate perfectionist judgments and for the value of civility. Moder­ ate perfectionists believe that there are enough freestanding reasons showing that moderate perfectionist judgments are sound and that civility is a crucial value.17 That being said, it is not necessarily mistaken for a perfectionist to base perfectionism upon a particular comprehensive moral doctrine; after all, a perfectionist can sensibly argue about what sort of life is best for human beings and what laws and public policies are most capable of promoting human flourishing. In this connection, Aristotle is an eminent comprehensive perfectionist, and his work will almost certainly continue to inspire future political and legal philosophers. However, in considering what sort of life is best for all people in view of a certain comprehensive moral doctrine, one is not concerned with how citizens of modern liberal societies should justify the use of political power to each other in a civil and respectful manner, given that citizens do not agree on any comprehensive moral doctrine in the first place. But hasn’t Wall already pointed out that comprehensive perfectionism can take civility seriously? Perhaps what comprehensive perfectionists need is only a sophisticated comprehensive perfectionism that takes civility seri­ ously and, accordingly, gives a plausible account of citizens’ mutual political justifications. For argument’s sake, let us agree that such a sophisticated com­ prehensive perfectionism could exist. Nevertheless, it seems unreasonable to expect that citizens would generally agree on such a comprehensive doctrine and that they would justify their political stances to one another in terms of it. Note that the problem here is not concerning what a particular citizen or politician or group of people should do in a specific social or political situation—but, rather, what public and shared moral norms there should be with regard to how citizens justify the use of political power to one another. Moderate perfectionism is attractive: it does not expect citizens to agree on any particular comprehensive moral doctrine, and it only expects them to accept those judgments about the good life that are piecemeal, plausible, widely shared, and not highly controversial. To defend comprehensive perfectionism, one might argue that citizens do not have to agree on the complete philosophical justifications of the value of

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civility and of the values pertaining to human flourishing. For perfectionism to work, citizens need only to accept, and know each other to accept, the much less controversial parts of the doctrine; namely, the crucial importance of civility and the relevance of certain general perfectionist values, such as moral, intellectual, and artistic excellence. But, to the best of my knowledge, no prominent perfectionist has pursued this line of argument. After all, it is totally unclear how political authorities could manage to inform citizens only of the presumably less controversial parts of a sophisticated comprehensive perfectionism and expect citizens to agree on them—while not informing citizens of the highly controversial parts of it and not expecting citizens to agree on them.18 Still, comprehensive perfectionists might make this challenge: if civility is all that matters, then all citizens have to do in political justification is to appeal to beliefs that are widely shared and not highly controversial, regard­ less of the truth or soundness of these beliefs. And if they do so, then moder­ ate perfectionists are more like politicians or pragmatists of some kind than philosophers who are concerned with the soundness of ideas of the good life. In my view, moderate perfectionists should make it clear that, in politi­ cal justification, the soundness of beliefs certainly matters; accordingly, for example, state officials fail to respect citizens as rational moral persons if they intentionally appeal to widely shared yet morally wrong beliefs, such as racially discriminatory ones, in legislation or policymaking.19 To moderate perfectionists, both the soundness and wide acceptability of moderate per­ fectionist judgments are important for citizens’ political justification, because both respect for rational moral persons and the value of civility are essential for political morality. Let us turn to a different criticism of moderate perfectionism. Collis Tahzib has argued that while he largely agrees with the general moderate perfection­ ist approach—in particular, the idea that one does not have to base perfec­ tionism upon any comprehensive moral doctrine—he thinks that moderate perfectionists need to respond to the challenge from anti-perfectionists by stipulating that there are some noncomprehensive perfectionist judgments that cannot be reasonably rejected.20 In his view, moderate perfectionists have not said clearly what they mean when they claim that reasonable people cannot reject some piecemeal judgments about the good life or that all rea­ sonable people are expected to accept them. One can sensibly argue, Tahzib says, that any of the judgments about the good life that moderate perfection­ ists rely on is an object of reasonable rejection, and it would be a very daunt­ ing task to carry out empirical research to confirm that all reasonable people in the real world accept these judgments about the good life.21 To defend perfectionism, Tahzib proposes what can be called the perfec­ tionist idealization of citizens. According to this view, just as one can see freedom, fairness, and equality as core liberal axioms in Rawls’s political lib­ eralism, one can see moral, intellectual, and artistic excellence as perfectionist

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axioms—which citizens must endorse in order to be regarded as reasonable.22 Consequently, we would expect perfectionist policies such as state subsidies for art galleries to pass the test of public political justification—that is, all reasonable citizens would accept these policies—because “a person who rejects the intrinsic value of artistic excellence would count as unreasonable” and as one whose objection to any of these policies can be dismissed.23 I think that moderate perfectionists have used the “reasonable” concept in various ways to talk about the epistemic and moral reasonableness of citizens and of beliefs.24 However, they have not adopted the perfectionist idealization of citizens that Tahzib proposes, and I  think that they should not. The most serious problem with Tahzib’s proposal is that it runs the risk of making a circular argument: by stipulating that reasonable citizens must endorse certain perfectionist views, Tahzib seems to be preaching to the con­ verted. If perfectionism is justified, then perfectionists should provide some reasons for the judgments about the good life that they rely on and should also explain the practical relevance of these judgments. These things cannot be done through the perfectionist idealization of citizens.25 As a matter of fact, Tahzib has given some reasons for the view that artis­ tic, moral, and intellectual excellence is essential for human flourishing.26 The question, then, would be the following: Are all judgments regarding the importance of artistic, moral, and intellectual excellence highly controver­ sial to the degree that citizens’ appeals to them in political justification must damage civility? I believe that Tahzib would say “no.” And, as I have argued, some of the judgments about the good life are widely accepted and convinc­ ing, so they can form the basis of perfectionist legislation and policymaking. In short, for a perfectionist to take political justification seriously, they do not have to maintain that some perfectionist judgments cannot be reasonably rejected.27 A moderate perfectionist can argue that, in political justification, citizens ought to do their best to justify their political stance in terms of rea­ sons that are sound or true, provided that the force of these reasons is not dependent upon the truth of any comprehensive moral doctrine. Moderate perfectionists, as I have said, think that there exist judgments about the good life that are convincing, widely accepted by people, not highly controver­ sial, and, importantly, not closely associated with any particular compre­ hensive moral doctrine. Citizens may appeal to such judgments in political justification.28 4 Is Confucian perfectionism a moderate perfectionism? Joseph Chan has sought to combine moderate perfectionism with Confucian­ ism.29 In this part, I examine briefly his theory of Confucian perfectionism, thus clarifying the nature and limits of moderate perfectionism. Let us start with how Confucianism is related to perfectionism. Confu­ cianism is an ethico-political doctrine that began life in China more than 2,500  years ago and has deeply influenced the development of East Asia.

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Confucians do not hold the same view on ethics and politics (so one may prefer to speak of Confucianisms instead of Confucianism); however, Confu­ cians invariably think that political leaders and authorities are morally obli­ gated to promote people’s material welfare and help them cultivate virtue. As such, Confucianism is a perfectionist doctrine. Moreover, Confucians (ancient Confucians, at least) generally hold systematic views of—to borrow Rawls’s words again: [W]hat is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relation­ ships, and much else that is to inform our conduct, and in the limit to our life as a whole.30 Thus, it is proper to say that Confucianism is a comprehensive perfectionism consisting of a particular comprehensive moral doctrine.31 Few contemporary Confucians have argued that the state should seek to promote Confucianism as a comprehensive moral doctrine.32 Contemporary Confucians generally think that Confucianism has valuable insights into eth­ ics and politics, but that it would be inappropriate for any modern state to promote Confucianism in its entirety, given that people living in modern societies hold divergent moral views.33 They believe that if Confucianism is to make positive contributions to modern politics and political discourse, then those aspects of Confucianism that are unsuitable for the modern world need to be revised, rectified, or abandoned.34 It is against such a background that Chan’s Confucian perfectionism makes original theoretical contributions. Chan describes Confucian perfec­ tionism as “an unusual project” because it is “a critical reconstruction of certain Confucian political ideas of the classical period for modern times.”35 In fact, Chan’s project is not only unusual but also ambitious: it seeks to explore the implications of Confucianism for a variety of fundamental issues in politics, including political authority, democracy, human rights, civil liber­ ties, and social and economic justice.36 The ultimate goal is to provide “an attractive philosophical alternative to liberal democratic theory.”37 There is a basic question about Chan’s project: how should Confucian per­ fectionism shape the legislation and public policymaking of a modern liberal state? To Chan, Confucian perfectionism can take either the form of moder­ ate perfectionism or that of extreme perfectionism, and he intends Confucian perfectionism to take the form of moderate perfectionism.38 Importantly, he argues: “Confucianism can be actively and publicly promoted” in the form of moderate perfectionism despite his view that, in public political discourse, citizens and state officials “should not present Confucianism as a complete and packaged conception and ask citizens to accept policy proposals as impli­ cations of that package.”39 By contrast, extreme perfectionism is the view that the state ought to adopt a certain comprehensive moral doctrine as the basis of state policy.

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To Chan, extreme perfectionism is deeply problematic and unsuitable for the construction of Confucian perfectionism.40 So, how should Confucianism be promoted in the form of moderate per­ fectionism? Chan has given the following example: one should not argue that filial piety (xiao) should be promoted by the state because it is a central element in Confucianism; to argue in such a way is to expect other people to accept the authority of Confucianism as a comprehensive moral doctrine.41 According to moderate perfectionism, people who want to appeal to Confu­ cian values in public policymaking need to justify these values in terms of rea­ sons that do not require the acceptance of Confucianism as a comprehensive moral doctrine. In addition, Chan has provided some compelling reasons for preferring moderate perfectionism over extreme perfectionism.42 One reason is the great importance of civility for politics and social cooperation, as we discussed earlier. However, I think that he has not shown clearly how moderate perfection­ ism supports the “active and public promotion of Confucianism.” In my view, moderate perfectionism simply cannot support state promotion of Con­ fucianism. I will explain in the following.43 State promotion of Confucianism could mean either (a) state promotion of Confucianism as a comprehensive moral doctrine, or (b) state promotion of certain Confucian values. Moderate perfectionism is evidently incompatible with (a), and, as a matter of fact, Chan has argued against state promotion of any comprehensive moral doctrine. This leaves Chan with only (b). It is not clear, though, how moderate perfectionism supports state promo­ tion of values that are distinctively Confucian. To illustrate, compare two perfectionist judgments: (1) that deep personal relations contribute to a per­ son’s good life; and (2) that filial piety (xiao) contributes to a person’s good life. The first one is an instance of moderate perfectionist judgment; it is not tied to any particular comprehensive moral doctrine, and people seem to widely share it. The second one is an instance of Confucian perfectionist judgment; it is a judgment about the value of filial piety, which is a canonical Confucian value. Now, the key question is: Can the perfectionist judgment about the value of filial piety be regarded as an instance of moderate perfec­ tionist judgment? I think that it cannot. Chan says, as mentioned, we should not claim that “filial piety should be promoted because it is a central element in Confucianism.” However, it is not clear why any person should endorse filial piety if he or she is not in favor of Confucianism as a comprehensive moral doctrine in the first place. After all, filial piety is one particular kind of human relationship, and its value, as Confucians generally understand it, is not the same as the value of mutual respect, parental care, and other human goods understood in a general way.44 And, as a matter of fact, many people in the West endorse the value of mutual respect, parental care, and some combination of these two values but do not endorse the value of filial piety in the way that many Asian people do.45

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Since filial piety (xiao) is closely connected to Confucianism as a compre­ hensive moral doctrine, it would be implausible to claim that filial piety and other distinctively Confucian values, including benevolence (ren) and right­ eousness (yi), are as general and freestanding as the perfectionist values of deep personal relations, aesthetic experience, understanding, mutual respect, and so on. Thus, it is implausible for Chan to maintain that the moderate perfectionist state may promote filial piety and other distinctive Confucian values just as it may promote general perfectionist values and goods. To Chan, my argument above does not show clearly that moderate perfec­ tionism is incompatible with state promotion of Confucian values.46 In Chan’s view, people from different social and cultural backgrounds may adopt what he calls the “participant approach” to Confucian values. According to this approach, people discuss and debate the significance and content of Confu­ cian values; thus, they can modify and improve these values. Even if a certain traditional Confucian value is unacceptable to many people living in modern societies, it is still possible that it can be transformed through the partici­ pant approach so that people can recognize its importance and relevance to modern politics and social development. And if a Confucian value can be transformed in such a way, then a moderate perfectionist state may promote it without appealing to Confucianism as a comprehensive moral doctrine. The participant approach is appealing and has the potential to provide a nuanced view of how different Confucian values can make positive contri­ butions to political discourse and policymaking in our times. Nevertheless, it can hardly vindicate state promotion of Confucian values. Note that the participant approach is a procedural approach that encourages people to discuss, debate, modify, and improve different Confucian values. As such, it would be premature for anyone to claim that traditional Confucian values can be transformed into contemporary moral values, and that these contem­ porary moral values (if one can still regard them as Confucian) can be widely shared by people living in modern societies, and—ultimately—that they are appropriate objects of a modern state’s support and promotion. Finally, given that the participant approach cannot vindicate state pro­ motion of Confucian values, one might propose that in order to be fair to citizens who hold divergent moral and religious views, the state may promote a wide range of values closely associated with different comprehensive doc­ trines. Thus, rather than promoting only Confucian values, the state may seek to promote Taoist values, Buddhist values, Christian values, Islamic values, Hindu values, Judaic values, and many other cultural and religious values at different periods of time or in different policy domains. However, I think that there are limits as to what kinds of values a moderate perfectionist state may promote. In my view, the state need not be unfair and disrespectful in promoting a wide range of general perfectionist values, such as deep personal relations and understanding.47 But if the state promotes a broad range of cultural or religious values closely associated with conflicting doctrines, then,

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instead of making all citizens satisfied, it will most likely offend all of them. For, in that case, anyone can reasonably complain that the state shows a ter­ rible lack of consistency of principle—conflicting religious or moral beliefs cannot be all true, and it is doubtful that they are equally deserving of state support. In short, the state will easily overstep the limits of moderate perfectionism if it seeks to promote Confucianism. I think that the same problem would arise with state promotion of any comprehensive moral doctrine and of val­ ues closely associated with any such doctrine.48 Conclusion To summarize, I  distinguish between two types of perfectionist theory: namely, comprehensive perfectionism and moderate perfectionism. Compre­ hensive perfectionism has wide appeal among contemporary perfectionists, but I here point out that it has certain theoretical limitations that moderate perfectionism does not have. Moreover, I  provide some reasons for favor­ ing moderate perfectionism, and defend it against the criticisms made by Wall and by Tahzib. To clarify the limits of moderate perfectionism, I discuss Chan’s Confucian perfectionism, arguing that moderate perfectionism can­ not support state promotion of values bound up with any comprehensive moral doctrine, such as Confucian values. Notes 1 2 3 4

5 6

7

8

John Rawls, Political Liberalism (New York: Columbia University Press, 2005).

Ibid, 56.

Ibid, 57.

For example, Charles Larmore, The Morals of Modernity (Cambridge: Cam­ bridge University Press, 1996), chs. 6–7; Thomas Nagel, Equality and Partiality (New York: Oxford University Press, 1991), ch. 14; Jonathan Quong, Liberalism without Perfection (Oxford: Oxford University Press, 2011). Rawls, Political Liberalism, 13. Richard Arneson, “Liberal Neutrality on the Good: An Autopsy,” in Perfection­ ism and Neutrality: Essays in Liberal Theory, ed. Steven Wall and George Klosko (New York: Rowman & Littlefield, 2003), 191–218; Joseph Raz, “Disagreement in Politics,” American Journal of Jurisprudence 43, no. 1 (1998): 25–42. Thomas Hurka, Perfectionism (Oxford: Oxford University Press, 1993); Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986); Qing Jiang, A Confucian Constitutional Order: How China’s Ancient Past Can Shape Its Politi­ cal Future, ed. Daniel A. Bell and Ruiping Fan, trans. Edmund Ryden (Princeton, NJ: Princeton University Press, 2013). Simon Caney, “Impartiality and Liberal Neutrality,” Utilitas 8, no. 3 (1996): 273–293; Simon Caney, “Liberal Legitimacy, Reasonable Disagreement, and Jus­ tice,” Critical Review of International Social and Political Philosophy 1, no. 3 (1998): 19–36; Joseph Chan, “Legitimacy, Unanimity, and Perfectionism,” Phi­ losophy & Public Affairs 29, no. 1 (2000): 5–42; Joseph Chan, Confucian Per­ fectionism: A Political Philosophy for Modern Times (Princeton, NJ: Princeton University Press, 2014), 191–204; Franz Mang, “Liberal Neutrality and Moderate

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11 12 13

14 15

16 17 18 19 20 21 22 23 24 25 26 27 28

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Perfectionism,” Res Publica 19, no. 4 (2013): 297–315; Franz Mang, “State Per­ fectionism and the Importance of Confucianism for East Asia,” Philosophical Forum 52, no. 1 (2021): 5–16. Chan, Confucian Perfectionism, 201. The idea of civility being discussed here differs from Rawls’s duty of civility. To Rawls, all citizens living in liberal democracies are under a moral duty of civility to explain to their fellow citizens how the political stances that “they advocate and vote for can be supported by the political values of public reason”; Political Liberalism, 217. The political values of public reason are not perfectionist values, and citizens are not expected to accept any perfectionist value in the process of political justification. Peter Staals, Drug Abuse and Division: A Practice Guide for Clinicians (London: McGraw-Hill, 2007). My discussion of these two judgments about the good life is drawn, with minor changes, from Mang, “Liberal Neutrality and Moderate Perfectionism,” 302–303. To moderate perfectionists, there are other moderate aspects of moderate perfec­ tionism: in particular, it does not seek to promote the good life through coercing or forcing citizens to live their lives in any particular way. In this paper, my focus is on the feature that it does not ground perfectionism in any comprehensive moral doctrine. For discussion of other moderate aspects of it, see Chan, “Legiti­ macy, Unanimity, and Perfectionism”; and Mang, “Liberal Neutrality and Mod­ erate Perfectionism.” See, especially, Steven Wall, Liberalism, Perfectionism, and Restraint (Cambridge: Cambridge University Press, 1998). Steven Wall, review of Joseph Chan, “Confucian Perfectionism: A Political Phi­ losophy for Modern Times,” Notre Dame Philosophical Reviews (online 2014), https://ndpr.nd.edu/reviews/confucian-perfectionism-a-political-philosophy­ for-modern-times/. Chan, Confucian Perfectionism. For further discussion, see Mang, “Liberal Neutrality and Moderate Perfection­ ism,” 301–304. It may be of interest to note that Rawls would reject this kind of partial conceal­ ment of the justification of political principles from the public. See Rawls, Politi­ cal Liberalism, 66–71. See Raz, “Disagreement in Politics,” 40–43. Collis Tahzib, “Perfectionism: Political, Not Metaphysical,” Philosophy and Pub­ lic Affairs 47, no. 2 (2019): 144–178; Collis Tahzib, A Perfectionist Theory of Justice (New York: Oxford University Press, 2022), 205–213. Tahzib, A Perfectionist Theory of Justice, 206–207. Tahzib, “Perfectionism,” 166–167. Tahzib, “Perfectionism,” 167. For example, Caney, “Liberal Legitimacy, Reasonable Disagreement, and Jus­ tice”; Chan, “Legitimacy, Unanimity, and Perfectionism”; Mang, “Liberal Neu­ trality and Moderate Perfectionism.” See Franz Mang, “Perfectionism, Public Reason, and Excellences,” Analysis (2023b). Tahzib, “Perfectionism,” 169–170. In this respect, I depart from my view expressed in Mang, “Liberal Neutrality and Moderate Perfectionism,” 301–304. Quong has argued that many disagreements about the good life are reasonable and foundational, while many disagreement about justice are reasonable but not foundational given that citizens must accept certain ideas of justice in order to be reasonable. See Quong, Liberalism without Perfection, ch. 7. This argu­ ment raises complex issues that I cannot enter into in this paper. I have discussed

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Quong’s argument in Mang, “Liberal Neutrality and Moderate Perfectionism”; Franz Mang, “Public Reason Can Be Reasonably Rejected,” Social Theory and Practice 43, no. 2 (2017): 343–367; and Mang and Chan, “Perfectionism.” Chan, Confucian Perfectionism. Rawls, Political Liberalism, 13. Considering that various Confucian scholars hold similar yet different views of the good life and of politics, we can also say: any Confucianism is a compre­ hensive perfectionism consisting of a particular Confucian comprehensive moral doctrine. For an exception, though, see Jiang, A Confucian Constitutional Order. For example, Chan, Confucian Perfectionism; Sungmoon Kim, Public Reason Confucianism: Democratic Perfectionism and Constitutionalism in East Asia (New York: Cambridge University Press, 2016); Sor-Hoon Tan, Confucian Democracy: A Deweyan Reconstruction (Albany: SUNY Press, 2003). For relevant discussion, see also Yutang Jin, “Confucian Leadership Democ­ racy: A Roadmap,” Comparative Philosophy 12, no. 2 (2021): 79–102, in which Yutang Jin explores the idea of leadership democracy that is expressive of classic Confucian values. Additionally, some scholars (e.g., Zhuoyao Li, Political Lib­ eralism, Confucianism, and the Future of Democracy in East Asia (New York: Springer, 2020); Baldwin Wong, “Junzi Living in Liberal Democracy: What Role Could Confucianism Play in Political Liberalism?,” Philosophical Forum 52, no. 1 [2021]: 17–28) have argued that while modern states should not adopt per­ fectionism and seek to promote Confucianism, Confucianism can make certain positive contributions to modern political discourse and social development. Chan, Confucian Perfectionism, xi. Ibid. Chan, Confucian Perfectionism, 23. Ibid, 14, 203. Chan, Confucian Perfectionism, 200, 203. Ibid, 200–204. Chan, Confucian Perfectionism, 203–204; italics in original. See mainly: Ibid, 200–204. My discussion will draw on my essay “Confucianism, Perfectionism, and Liberal Society,” Dao: A Journal of Comparative Philosophy 17, no. 1 (2018): 29–49. Philip J. Ivanhoe, “Filial Piety as a Virtue,” in Filial Piety in Chinese Thought and History, ed. Alan K. L. Chan and Sor-Hoon Tan (London and New York: Routledge, 2004), 189–202. For relevant discussion, see Qingping Liu, “Filiality versus Sociality and Individu­ ality: On Confucianism as ‘Consanguinitism,’ ” Philosophy East and West 53, no. 2 (2003): 234–250. I thank Chan for discussing my argument with me. Mang, “Liberal Neutrality and Moderate Perfectionism,” 307–308. However, I have argued that citizens may deliberate whether and how Confucian­ ism, among other reasonable moral doctrines, can make positive contributions to their social and political thinking and public policymaking, provided that certain conditions are met. See Franz Mang, “Confucianism and Public Political Discus­ sion,” Comparative Political Theory (2023a).

References Arneson, Richard. “Liberal Neutrality on the Good: An Autopsy.” In Perfectionism and Neutrality: Essays in Liberal Theory, edited by Steven Wall and George Klo­ sko, 191–218. New York: Rowman & Littlefield, 2003.

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Caney, Simon. “Impartiality and Liberal Neutrality.” Utilitas 8, no. 3 (1996): 273–93. ———. “Liberal Legitimacy, Reasonable Disagreement, and Justice.” Critical Review of International Social and Political Philosophy 1, no. 3 (1998): 19–36. Chan, Joseph. “Legitimacy, Unanimity, and Perfectionism.” Philosophy  & Public Affairs 29, no. 1 (2000): 5–42. ———. Confucian Perfectionism: A Political Philosophy for Modern Times. Prince­ ton, NJ: Princeton University Press, 2014. Hurka, Thomas. Perfectionism. Oxford: Oxford University Press, 1993. Ivanhoe, Philip J. “Filial Piety as a Virtue.” In Filial Piety in Chinese Thought and History, edited by Alan K. L. Chan and Sor-hoon Tan, 189–202. London and New York: Routledge, 2004. Jiang, Qing. A Confucian Constitutional Order: How China’s Ancient Past Can Shape Its Political Future. Edited by Daniel A. Bell and Ruiping Fan. Translated by Edmund Ryden. Princeton, NJ: Princeton University Press, 2013. Jin, Yutang. “Confucian Leadership Democracy: A  Roadmap.” Comparative Phi­ losophy 12, no. 2 (2021): 79–102. Kim, Sungmoon. Public Reason Confucianism: Democratic Perfectionism and Con­ stitutionalism in East Asia. New York: Cambridge University Press, 2016. Larmore, Charles. The Morals of Modernity. Cambridge: Cambridge University Press, 1996. Li, Zhuoyao. Political Liberalism, Confucianism, and the Future of Democracy in East Asia. New York: Springer Cham, 2020. Liu, Qingping. “Filiality versus Sociality and Individuality: On Confucianism as ‘Consanguinitism.’ ” Philosophy East and West 53, no. 2 (2003): 234–50. Mang, Franz. “Liberal Neutrality and Moderate Perfectionism.” Res Publica 19, no. 4 (2013): 297–315. ———. “Public Reason Can Be Reasonably Rejected.” Social Theory and Practice 43, no. 2 (2017): 343–67. ———. “Confucianism, Perfectionism, and Liberal Society.” Dao: A Journal of Com­ parative Philosophy 17, no. 1 (2018): 29–49. ———. “State Perfectionism and the Importance of Confucianism for East Asia.” Philosophical Forum 52, no. 1 (2021): 5–16. ———. “Confucianism and Public Political Discussion.” Comparative Political The­ ory (2023a) (online first): 1–15. ———. “Perfectionism, Public Reason, and Excellences.” Analysis (2023b) (online first): 1–13. https://doi.org/10.1093/analys/anad023 Nagel, Thomas. Equality and Partiality. New York: Oxford University Press, 1991. Quong, Jonathan. Liberalism Without Perfection. Oxford: Oxford University Press, 2011. Rawls, John. Political Liberalism. New York: Columbia University Press, 2005. Raz, Joseph. The Morality of Freedom. Oxford: Clarendon Press, 1986. ———. “Disagreement in Politics.” American Journal of Jurisprudence 43, no. 1 (1998): 25–42. Staals, Peter. Drug Abuse and Division: A  Practice Guide for Clinicians. London: McGraw-Hill, 2007. Tahzib, Collis. “Perfectionism: Political, Not Metaphysical.” Philosophy and Public Affairs 47, no. 2 (2019): 144–78. ———. A Perfectionist Theory of Justice. New York: Oxford University Press, 2022.

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Tan, Sor-hoon. Confucian Democracy: A Deweyan Reconstruction. Albany: SUNY Press, 2003. Wall, Steven. Liberalism, Perfectionism, and Restraint. Cambridge: Cambridge Uni­ versity Press, 1998. ———. “Confucian Perfectionism: A Political Philosophy for Modern Times.” Review of Joseph Chan. Notre Dame Philosophical Reviews (Online, 2014). https://-ndpr. nd.edu/reviews/confucian-perfectionism-a-political-philosophy-for-modern-times/. Wong, Baldwin. “Junzi Living in Liberal Democracy: What Role Could Confucianism Play in Political Liberalism?” Philosophical Forum 52, no. 1 (2021): 17–28.

Funding acknowledgment: The writing of this entry was funded by the Research Grants Council of Hong Kong (project number: 21614021).

Part III

The ethics of pluralism

Contributions in this part aim to defend or outline various moral duties we might have toward other persons that underlie the liberal institutions or notions of “rights” functioning across the contemporary political land­ scape but doing so outside the dominant frameworks. The contributions thus address worries that perfectionism is necessarily paternalistic or anti-plural­ istic, or that it undermines core liberal values such as tolerance or respect.

DOI: 10.4324/9781032702766-12

9

Religion, democratic deliberation, and the requirement of fallibilism Paul Billingham1

What role, if any, can religious arguments play within democratic delibera­ tion aimed at promoting justice and the common good? Can religious contri­ butions to democratic discourse within pluralistic liberal democratic societies be appropriate, respectful, and fruitful? How do the norms of good citizen­ ship constrain such contributions? Political theorists often approach these questions by first developing an account of public justification and public reason, and then deriving asso­ ciated duties with respect to citizens’ political reason-giving.2 As a result, many discussions are centered on the question of whether citizens are under a “duty of restraint” that bars or restricts the offering of religious reasons within political deliberation.3 This approach and these discussions are cer­ tainly important. But it is notable that most theorists ultimately endorse some version of “inclusivism,” whereby ordinary citizens, at least (if not elected representatives and officials), are permitted to offer religious reasons. Such inclusivism opens up many further questions, which those narrowly focused on public reason rarely address. What norms of engagement should regulate citizens’ contributions to democratic discourse? Might there be deliberative norms, independent of ideas of public reason, that citizens must meet—and if so, then can religious citizens meet those standards? Even if it is permissible to offer arguments for laws that appeal to religious ideas or rely on religious premises (what I will call “religious political arguments”), can such arguments actually be productive or beneficial, or are they often a distraction—or worse? How can religious political arguments be made in ways that respect pluralism, while nonetheless appealing to the moral truth, as the citizen sees it? For example, does this require that citizens adopt particular epistemic attitudes toward their religious arguments, such as fallibilism? If so, then how far must such fallibilism reach; must the religious believer be willing to question her core religious convictions? This short chapter cannot tackle all of those questions. Instead, I will focus on the final issue just mentioned: fallibilism.4 Various theorists have argued that contributions to public deliberation should be offered in a fallibilistic DOI: 10.4324/9781032702766-13

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way. Citizens should not present their views as unquestionable truth, but instead should be open to reconsidering their positions and being persuaded by compatriots with alternative perspectives. For example, J. Caleb Clanton argues that a central norm regulating democratic deliberation should be the “fallible-inquiry requirement.”5 Further, he holds that religious citizens are able to comply with such a norm when presenting religious political argu­ ments.6 Others have argued that such a norm creates problems for religious political advocacy, however. For example, James Boettcher argues against what he calls “strong inclusionist” accounts of democratic reason-giving on the grounds that citizens who solely rely on religious considerations within their political advocacy must be willing to expose those religious views to deliberative scrutiny and criticism, and even to revise those views.7 He sug­ gests that this is something that many would be unwilling to do—and if so, then they are obligated not to solely or decisively base their advocacy on religious arguments.8 I explore these issues in this chapter, and argue that religious citizens can offer religious political arguments in an appropriately fallibilistic way. First, I offer some further explanation and defense of the requirement of fallibilism, particularly engaging with Clanton. Then I argue that religious citizens can comply with this requirement, contra some initial concerns that the nature of religious belief would prevent this. Finally, I argue, contra Boettcher, that citizens are usually not required to be fallibilistic concerning their core con­ victions, even when those convictions underlie their political arguments. Reli­ gious citizens can thus fulfill the requirement of fallibilism even if they are unwilling for their core religious beliefs to be subject to deliberative scrutiny. 1 Deliberation and fallibilism To see why a requirement of fallibilism applies to citizens engaged in demo­ cratic deliberation, we first need to have a sense of the nature of that delib­ eration. In this chapter, I  presuppose a familiar and hopefully relatively uncontroversial ideal of democratic deliberation: sincere, good-faith, discus­ sion concerning the requirements of justice and the common good, in which citizens present arguments for their favored laws and policies, engage with others’ arguments, and show willingness both to try to persuade others and to be persuaded themselves.9 One immediate implication of this ideal is that the aim of democratic deliberation is not simply to get one’s way or to win an argument; it is to identify laws and policies that best promote justice and the common good. What laws do this is a difficult and complex question, and one’s view on the political issue at hand might well be mistaken. Even when one has a high degree of confidence in one’s judgment, it could have gone wrong in various ways—logical flaws in one’s reasoning, overlooking relevant normative or empirical considerations, placing too much weight on some considerations or insufficient weight on countervailing considerations, and so on. Further,

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as Christopher Eberle notes, one’s point of view can be “occluded by selfinterest, ideology, prejudice, or self-deception.”10 Meanwhile, other citizens might well have relevant knowledge, experience, or insight. Citizens should recognize all of these facts, and this should make them willing to learn from their compatriots. Such a willingness includes being ready to open one’s views to critical scrutiny, and to change those views in the light of others’ arguments. As Clanton puts it, one must be open to the possibility of deliber­ ative defeat.11 In order to be so open, one must have an attitude of fallibilism toward one’s political judgments. Clanton justifies his “fallible-inquiry requirement” with a Peircean argu­ ment. According to this argument, “there is an organic connection between holding a belief and the obligation to participate in inquiry with others.”12 Believing something means holding that it is true, and to hold that some­ thing is true is to hold that it can meet any objections and challenges raised against it. Belief in a proposition thus tacitly commits one to defending that proposition from challenges. And that requires being willing to entertain such challenges from others. Therefore, believers are “tacitly committed to participating in deliberation and thereby owning up to the risk of deliberative defeat.”13 I am not convinced by this argument, for a few reasons. First, even if belief in a proposition implies believing that it can withstand critical scrutiny, this is not the same as believing that you are able to defend it from challenges. You might instead believe that those who are more knowledgeable about the subject can defend it, and hold your own belief based on trust in their knowledge and testimony. This is how I hold many of my scientific beliefs, for example. For beliefs held in this way, it does not seem that one is commit­ ted to participating in deliberation. Second, more generally, there seems to be a gap between believing that a proposition can be defended from challenges and being committed to defending it oneself. Third, even if one is commit­ ted to participating in deliberation, it is not clear that this commits one to defending one’s belief from challenges brought by anyone and everyone. One might have good reason to only be open to challenges from certain groups, such as those with whom one shares certain commitments or presupposi­ tions, or those with relevant kinds of expertise. A possible reply to all these points is to accept them when it comes to belief in general, but to argue that they do not apply in the context of demo­ cratic deliberation that we are focusing on here. When individuals, in their capacity as citizens, publicly offer arguments for laws or policies, then they are committed to the proposition that those laws or policies are justified, and to defending that proposition from challenges brought by other citizens. Pub­ lic advocacy commits one to deliberation, even if mere belief does not. I think this is correct. But it is correct for moral rather than epistemic reasons. What is really doing the work in this reply is a normative conception of democratic deliberation, such as the one I sketched above. Clanton seeks to ground his fallible-inquiry requirement epistemically, whereas the kind of fallibilism

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that is required of democratic citizens is better grounded morally, as follow­ ing from the normative ideal of democratic deliberation. Clanton’s Peircean argument seems to me an unnecessary addition to that moral argument.14 2 Fallibilism and religion Can religious citizens adopt the appropriate attitude of fallibilism when pre­ senting religious political arguments? I  will argue that they can. But some might doubt this, or at least doubt that they will be willing to do so. Religious political arguments appeal to sources that religious citizens consider to be practical and epistemic authorities (even infallible, in some cases). This can be true for church teaching and tradition, but might be especially true with respect to scriptures, which are often seen as the authoritative word of God. When arguments appeal to the deliverances of what is taken to be a highly (or even completely) reliable epistemic authority, one might expect citizens to have such a high level of confidence in their conclusions that they are not open to deliberative defeat. If God commands something, then it seems like no contestation is possible—and especially not contestation from co-citizens whose political convictions are not based on the true worldview. Further, it might seem that in order to challenge a religious political argument one must challenge the authority or veracity of its religious sources. To object to an argument for a policy that appeals to the Bible’s teaching, it might seem that one must reject the claim that the Bible is God’s word. Christian citizens might well hold their convictions concerning the Bible’s status non-fallibilistically, such that they are unwilling to countenance objections that are premised on such a rejection. If these worries are correct, then religious citizens might engage in democratic deliberation with the aim of persuading others to support their preferred policy without being open to persuasion that their religious political arguments for that policy might be mistaken. This would violate the norms of democratic deliberation, and thus give reason for cau­ tion about the place of religious political arguments within that deliberation. There clearly is something to this worry. Religious political arguments can certainly be presented in a haughty way, as deliverances from on high that cannot be challenged. I do not think this is the norm, however, and it is easy for our approach to religion in politics to be unduly shaped by an unrepre­ sentative sample of high-profile examples. Religious political arguments are often offered in an appropriately fallibilistic manner. More importantly, there is nothing in the nature of religious belief that prevents this from occurring. Or so I will argue. The first point to note here is that arguments that move from religious premises to political conclusions will invariably involve several argumenta­ tive steps. It is rarely the case that a specific religious belief or verse of scrip­ ture has immediate and obvious political implications. Even when it comes to specific scriptural commands or prohibitions, there are questions regarding

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how this command should be interpretated, whether it should be enforced through law, and, if so, what the appropriate law should be. Further, most religious political arguments do not simply appeal to straightforward commands or prohibitions. Scriptures and religious tradi­ tions are much richer than this. They involve narrative, poetry, wisdom liter­ ature, and much else. Religious political arguments often involve drawing on various passages from scripture, theological ideas that have been developed on the basis of those passages, and religious traditions of thought about the issue at hand. Believers can accept that their interpretations of these ideas, and their application to the policy issue at hand, might be mistaken. Fallible human judgment plays a role at each stage of such arguments. Indeed, fal­ lible human judgment plays a role even in political arguments that narrowly appeal to scriptural premises, given pertinent questions of interpretation and application. Believers can recognize these facts. Religious political arguments are also not limited to theological sources of knowledge. They often involve philosophical argumentation, sociological insights, conceptual analysis, empirical premises, and so on. In other words, religious political argument typically contain non-religious premises, of vari­ ous kinds. This again opens up many points at which the argument can be challenged. Finally, the conclusion of religious political arguments can also be chal­ lenged via the presentation of independent objections to the policy propos­ als they support. If there are considerations that speak against the policy, then this gives reason to reconsider one’s advocacy of that policy. This might involve reevaluating the religious political argument for the policy, or might involve weighing the reason that argument gives for the policy against the countervailing considerations. The upshot of all these observations is that religious political arguments can always be subject to critical scrutiny, and religious citizens can be fal­ libilistic about those arguments.15 Further, the forms of critical scrutiny that I have identified here can occur without questioning the authority or veracity of religious sources of knowledge. Religious traditions also commonly feature internal disputes and disa­ greements on ethical and political questions.16 There are significant debates concerning the policy implications even of firmly held, central, religious doc­ trines such as the sanctity of life. For example, it might be that this doctrine leads many religious citizens (or at least those in the Abrahamic tradition) to oppose euthanasia. But the argument from that premise to that conclusion is not straightforward, and as such will contain many points at which it can be contested.17 More generally, members of the same religion often have signifi­ cant disagreements among themselves regarding political questions, which again demonstrates the contestability of religious political arguments.18 It might be helpful to examine an example that illustrates the points I have made about the nature of religious political arguments. So, let’s consider the

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arguments in “AI and Digital Technologies,” a briefing paper written by Christian ethicist John Wyatt for the British all-party parliamentary group Christians in Parliament.19 Wyatt identifies four Christian principles that he argues should inform regulatory and legislative responses to developments in digital technology. First, our basic orientation should be pro-technology, because the ability to develop innovative technology can be seen as part of our God-given created nature, the means by which we fulfil the creation mandates to “fill the earth and subdue it” (Genesis 1:28) and to care for all of creation (Genesis 1:28–30, Genesis 2:5–8).20 But “in a fallen world the mastery of nature always carries with it evil and manipulative possibilities,”21 such that we need to be “clear-eyed about the need to resist and confront their potential for unhelpful and destructive mas­ tery over our human nature”22 and always ask ourselves what aspect of our humanity and community we might neglect if we adopt a particular tech­ nological solution. Second, Christian thinking emphasizes and values our “fleshly embodiment,” which is central to our relationships and is “vindi­ cated in the Incarnation and Resurrection of Jesus Christ.”23 Machines can never share our embodied personhood, and we must always seek to ensure that “physically embodied human beings can flourish, and . . . face-to-face embodied relationships can be celebrated and protected.”24 Third, “the Bibli­ cal narrative repeatedly stresses the importance and significance of work.”25 Visions of the future where productive labor is unnecessary thus do not match a Christian understanding of human flourishing—although this need not imply that all work must take the form of paid employment. Fourth, “a Biblical understanding of economics and social justice leads to a focus on the most vulnerable in our societies,”26 and emphasizes protecting them from abuse and manipulation. This includes those who are vulnerable to addictive digital technologies. On the basis of these principles, Wyatt suggests various potential initia­ tives to ensure effective regulation of digital technologies. Several focus on increasing the transparency and intelligibility of AI systems, so that consum­ ers know when such systems are operating and what they are being used for. Wyatt’s first principle calls for an awareness of the way that we are being shaped by technology, and this requires us to have greater understanding of the workings of AI systems. Such understanding is also important with respect to protecting the vulnerable and tackling problems such as hidden biases in machine learning systems. AI systems are often used in settings such as healthcare and criminal justice where people are in particularly vulnerable situations, and this makes intelligibility with respect to the decisions such systems make especially important. In some cases, protecting the vulnerable might require direct prohibitions; for example, Wyatt suggests “outlawing

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hidden behaviour modification techniques which reinforce frequent smartphone and internet usage.”27 Wyatt’s emphasis on the importance and irreplaceability of embodied human relationships leads him to be skeptical about AI conversation bots and companion robots. He suggests that users should be reminded that they are interacting with a machine not a human person. He would also resist the state using companion robots in its own service provision, for example, as a replacement for human caregivers for the elderly. Certain uses of sex robots—such as “enaction of abuse, rape or torture with highly realistic child humanoid robots”28—should be illegal. Finally, the importance of work for human flourishing means that it is cru­ cial to help those who suffer from technological unemployment, for example, through adult education, supporting the costs of relocation, and providing transitional financial support. This is an interesting set of policy proposals in its own right and illustrates the way that a religious worldview can be brought to bear on contempo­ rary policy issues. It also shows the way that religious political arguments typically draw on scripture—Wyatt references Biblical passages through­ out his discussion—but do so in order to develop principles and values that guide political thinking, rather than simply to provide a list of commands or prohibitions. One result of this is that the connection between the religious premises and the specific policy proposals is not a case of straightforward inference or entailment. Wyatt’s favored policies certainly reflect and embody the principles that he outlines. But there is plenty of scope for disagreement regarding each of these policies. Further, the principles themselves are open to challenge, with respect to whether they accurately and comprehensively capture relevant Christian ideas. Wyatt would certainly recognize the role of his fallible human judgment both in his elaboration of the four Christian principles and in his use of those principles to argue for specific policies. He can hold these views fallibilistically and would be open to theological, philo­ sophical, and empirical challenges to his arguments. For example, it might turn out empirically that certain kinds of transpar­ ency about the operation of AI systems simply lead to confusion, or to people refusing to make use of technologies that would aid their flourishing, such that such transparency is not always desirable. When it comes to support for the technologically unemployed, the right policies will clearly depend on empirical evidence regarding effectiveness. But precisely what counts as “effective” is a philosophical question. Wyatt emphasizes humans’ need for productive labor—in opposition to the idea of a work-free future—but also recognizes that this need not mean paid employment. This suggests that the focus need not exclusively be on helping people return to paid work; alter­ native productive activities should also be valued. But finding policies that strike this kind of balance will be complicated and contested—even within Wyatt’s own framework.

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To take another example, Wyatt proposes that consumers should have the option of paid-for confidential services that are equivalent in quality to free data-mined services such as those provided by Google and Facebook. An obvious normative worry about this is that it will create a two-tier system where the rich are able to opt-out of the commercial use of their data while the poor are not. Wyatt would no doubt be receptive to this worry and, if it proved persuasive, ready to adjust his policy position in the light of it. The more general point here is that there is always argumentative work to be done in moving from religious beliefs to a policy position, and thus there is always space for reevaluation of those argumentative steps. Citizens can thus be appropriately fallibilistic in relation to their religious political arguments. Of course, these observations only show that religious citizens ought to rec­ ognize the fallibility of their political judgments and to be open to reconsider­ ing and revising those judgments. It does not show that they always, or even usually, do display this deliberative virtue. Nevertheless, I think that religious citizens generally do recognize the facts I have outlined. Importantly, there is nothing about the nature of religious belief that means that religious political arguments will be specially absolutist or non-negotiable. 3 Fallibilism and core convictions So far, I have argued that religious citizens can and should be open to revising their religious political arguments and policy positions, in the light of others’ criticism of their arguments from religious convictions to political judgments. But what about the religious convictions themselves? Plausibly, some citizens hold certain core religious convictions with a very high level of confidence and/or would not be willing to expose them to criticism or debate within democratic deliberation. They might not have a fallibilistic attitude toward some of their religious convictions. For example, Wyatt might not be fallibil­ istic about the authority of the Bible, or about certain core theological tenets that his arguments draw upon, such as the incarnation and resurrection of Jesus.29 Is this a problem? One account that would see this as a problem comes from Japa Pallik­ kathayil. Pallikkathayil has recently defended a “duty of responsiveness” as applying to citizens engaged in democratic deliberation.30 This duty has three levels. First, looking for shared commitments that bear upon the policy issue under consideration. Second, reasoning from the perspective of the other par­ ty’s unshared commitments. Third, criticizing the other’s fundamental com­ mitments. Citizens should also be open to others engaging with them in each of these ways. Citizens who are unwilling to reconsider their fundamental religious convictions within deliberation would violate the third level of this duty. They would not be open to changing those convictions in the light of others’ criticisms. They might also not be open to listening to, responding to, or learning from such criticisms. Such citizens would therefore violate what Pallikkathayil takes to be an aspect of their duties of democratic citizenship.

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I think we should reject Pallikkathayil’s view here. A  lack of fallibilism with respect to one’s fundamental convictions is (usually) not a problem, because citizens should not (usually) be required to be willing to revise their core convictions as a result of democratic deliberation. There are two reasons for this. First, one can hold an argument for a law in an adequately fallibilis­ tic way even if that argument contains premises concerning core convictions that one holds non-fallibilistically, or more generally presupposes a set of background beliefs that one is unwilling to open to critical scrutiny within democratic deliberation. Even if one has a non-fallibilistic attitude toward certain core beliefs, one can nonetheless be fallibilistic regarding the infer­ ences or conclusions one derives from, or with the help of, those beliefs. For example, Wyatt can be fallibilistic about his arguments for regulations on digital technology even if he is not fallibilistic about his beliefs that the Bible is the word of God and that Jesus rose from the dead. As Clanton puts it: in most cases—probably every actual case—one can be a fallibilist about the political implications of one’s religious beliefs without even raising the question about whether we could be fallibilists concerning what might be an otherwise unassailable core religious belief.31 Crucially, the former is sufficient for one to be open to the possibility of the defeat of one’s political positions, and so ready to engage with others in good-faith democratic deliberation. Wyatt’s arguments can be subjected to extensive critical scrutiny, in ways that might well lead him to change his mind about his policy proposals and/or his arguments for those proposals, even if he holds his core religious convictions in a non-fallibilistic manner. Second, demanding that citizens also open their core convictions to scru­ tiny asks too much of them. Such openness should not be the price of engage­ ment in democratic politics. As Eberle puts it, it is “far too onerous a burden to impose on citizens the expectation that they ought to take seriously the possibility that the convictions that define their respective moral identities might be false.”32 This quote nicely highlights why this burden is too oner­ ous: because core convictions are those that are central to our sense of self. Citizens should not be required to put their whole moral identity on the line in order to participate in deliberation. Eberle’s statement is also useful because it makes clear that this argument is not exclusive to religion. It also applies to other core, basic, or identitydefining commitments. I am not suggesting that we should treat religion as special or give religious citizens a special pass with respect to a duty of citi­ zenship that others must comply with. Non-religious citizens also often have core commitments that they would not want to reconsider within democratic deliberation. In my view, they should not be required to do so. These might well include some of the central values that underlie democratic politics itself, such as the moral equality of all persons.33 Non-negotiable fundamental premises are not a distinctive feature of religious political arguments.

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It is important to note that religious citizens should still be fallibilists about many religious beliefs. The right way to interpret a passage of scripture and the implications of a theological doctrine for public policy both are religious beliefs. They are beliefs about, and based upon, religious ideas. The belief that the four principles that Wyatt outlines are correct is a religious belief. I have already argued that religious citizens should be open to criticism and reconsideration of such beliefs, when they are being used to argue for a par­ ticular law or policy. This is indeed a duty of citizenship. Simone Chambers thus perhaps goes too far when she writes that “a willingness to revise is attached to public proposals for coercive laws and not to underlying beliefs and comprehensive views.”34 Chambers is defending a view similar to mine, according to which citizens must be willing to revise their arguments and pol­ icy positions in the light of others’ arguments. But her wording here falsely implies that all “comprehensive beliefs” are immune from this requirement. In fact, all beliefs that directly justify one’s policy position should be open to revision, and this might well include comprehensive (including religious) beliefs. What does not need to be so open is one’s deeper, core, comprehen­ sive convictions. One need not be willing to revise one’s belief in the authority or inerrancy of the Bible. But one must be willing to revise one’s interpreta­ tion and application of particular passages. To use the Wyatt example again, he should be willing to revise his Christian principles regarding digital tech­ nology, but need not be willing to revise his belief in the incarnation. Two further clarifications are in order. First, I  am not meaning to sug­ gest that religious individuals typically have no doubts about their beliefs, or are always, or even usually, very certain of their religious views. Religious believers can be epistemically humble, recognize that religious questions are complex and difficult, have doubts, and so on. Indeed, it is quite common to religious experience to sometimes question (at least parts of) one’s faith.35 There will be a range among religious citizens with respect to the level of certainty that they have about their core religious convictions, just as there is with respect to other such comprehensive beliefs. The question at hand, however, is whether citizens should be willing to open their fundamental convictions to challenge within public political debate. Even those who do entertain doubts about their religious beliefs might well be unwilling to do this. My argument is that they need not do so. Second, I am not arguing that citizens should not be open to reconsidering their core convictions, or that there is anything objectionable about engag­ ing in the kind of deliberation involved in the third level of Pallikkathayil’s duty of responsiveness. Further, I am not suggesting that religious (or other citizens) would never be willing to do this. Citizens might well be fallibilistic even about their core convictions within deliberation, and are of course per­ mitted to open them to critical scrutiny. Perhaps it is even admirable to do so. My argument is simply that this is not required, at the bar of democratic citizenship, and this is true even when one makes political arguments that draw on those convictions.36

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One might object to this view by holding that all considerations that play a role in grounding one’s political judgments ought to be open to critical scrutiny. If a religious conviction provides the ultimate grounding for one’s political judgment, then that conviction is a legitimate object of deliberative dispute. Citizens should not be permitted to shield from scrutiny convictions that they are drawing upon within their political advocacy. After all, those convictions are playing a role in the citizen’s argument that a particular law should be enacted and enforced on all citizens. Boettcher presses this objection, arguing that if a citizen’s political advocacy is solely or decisively based on religious arguments, then any religious convic­ tions that “are essentially related to citizens’ political choices . . . must be put to the test” through deliberative, critical scrutiny.37 He suggests that this will often include core religious beliefs, such as those concerning the authority of Scripture, what texts should count as Scripture, whether humans can discern God’s purposes and commands, and whether other religions are true.38 Such a citizen thus must “take steps genuinely to challenge assumptions and judg­ ments that may be essential to her denominational affiliation, her theological perspective, or even her particular self-understanding and religious identity.”39 I think this objection is too quick, however, in the light of the observa­ tions that I have made regarding the argumentative steps that are involved in defending a law or policy on the basis of religious convictions. Boettcher appears to take any belief that plays some role within a religious political argument to be “essentially related” to the conclusion in a way that makes it obligatory to open them to critical scrutiny, and thus to hold them fal­ libilistically. A  citizen’s belief in the canon and authority of the Bible, and indeed more generally in the existence of God, clearly bear upon her political judgments that are justified by arguments appealing to the Bible. If she didn’t believe in God or the Bible (say), then she would not endorse this argument and might hold a different position. Those beliefs are “essentially related” to her position in that sense. But those beliefs are not doing the direct justifica­ tory work. That work is done by the argumentative steps from the Bible to the conclusion—which, again, will themselves include religious beliefs, such as beliefs about how best to interpret the relevant passages, what theologi­ cally informed principles they justify, and so on. It is these steps that need to be held fallibilistically and opened to criticism. This provides plenty of room for deliberative engagement and for citizens to be persuaded to change their views. Core convictions that provide the background to, and starting prem­ ises of, the argument are sufficiently remote from the political conclusions “to obviate the need to subject them to criticism,”40 as Eberle puts it. Of course, it is possible that a core conviction could play a more direct role in justifying a political commitment. This is a difficult case for my posi­ tion. On the one hand, my claim that it is too demanding to expect citizens to open their core convictions to critical scrutiny within democratic delibera­ tion applies here. But, on the other hand, if those convictions are the prem­ ises that directly justify one’s political judgment, then a failure to open them

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to scrutiny would in effect mean that one holds that judgment itself non­ fallibilistically. This second claim might actually be too strong; even an argu­ ment that directly draws on core convictions would invariably have other premises that could be subject to criticism, rendering the political judgment itself fallible. But nonetheless, it still sems objectionable for a citizen not to be willing to reconsider her core conviction in this case. Given this, I think she should be required to do so. Her immediate reliance on those convictions invalidates her usual permission to hold them in a non-fallibilistic manner. Having said this, I think such cases would be rare. In fact, I am not com­ pletely sure what such a case would look like. The most obvious thought would be that the citizen takes a prohibition from scripture and argues: “God prohibits X and therefore we ought to have a law against X.” As I have already suggested, most religious political arguments are not like this.41 But even when they are, this argument could be held fallibilistically, without core convic­ tions regarding God’s existence and the authority of scripture being held fal­ libilistically. First, the claim that God prohibits X, or that this prohibition applies today, can (and should) be open to challenge. Other interpretations or contemporary applications of the relevant scripture might well be available. Second, the inference from God prohibiting X to the conclusion that we ought to enact a law against X can (and should) be open to challenge. Everyone agrees that not all of morality should be legally enforced; not all sins should be outlawed.42 An argument is thus required to explain why this particular pro­ hibition should be, and that argument will be contestable. Even in this case, therefore, I do not think that a core conviction needs to be held fallibilistically. Perhaps we can imagine a case where a citizen sees a particular interpreta­ tion of scripture, or even the truth of a particular moral claim, as itself core to her beliefs or as identity-defining, and where she argues that this interpreta­ tion or claim justifies a law. In order to present this argument in a suitably fal­ libilistic way, she will have to be willing to reconsider the relevant core belief and to open it to critical scrutiny. In this case, I agree with Boettcher that the citizen must do this (or must choose not to make the relevant religious politi­ cal argument). So, my view does not necessarily shield core convictions from scrutiny. But I think cases where they must be open to scrutiny will be rare. Conclusion This chapter started with the broad question of the place of religious political arguments within democratic deliberation. I have explored just one aspect of this question: Can religious citizens abide by the requirement that political arguments be held fallibilistically, and opened to critical scrutiny and the pos­ sibility of deliberative defeat? I have argued that they can do so, and thereby tackled one possible obstacle to religious political arguments making a con­ structive and fruitful contribution to deliberation. This is one part of defending the broader contention that religious citizens can abide by the norms of demo­ cratic citizenship when offering religious arguments within deliberation, and

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that those arguments can play a productive role within democratic discourse and decision-making. Many other issues would need to be discussed in order to fully defend that broader contention, and doing so is beyond the scope of this chapter. But in closing, it is worth noting that the example from Wyatt that I sketched above is at least suggestive of its truth. That example illustrates the way that religious political arguments can indeed make a distinctive and productive contribution to deliberation. Religious claims about the good can positively contribute to political discussions concerning what policies will pro­ mote justice and the common good within a community of freedom. Notes 1 This chapter draws upon material from the book Does Faith Belong in Politics?: A  Debate, forthcoming with Routledge, in which I  debate the titular question with Marilie Coetsee. I am grateful for permission to use that material here. I owe thanks to Henrik Kugelberg, James Dominic Rooney, Collis Tahzib, Tony Taylor, and Patrick Zoll for helpful comments. 2 For the classic case, see John Rawls, Political Liberalism, Expanded ed. (New York: Columbia University Press, 2005). 3 For overviews of these debates, see Andrew March and Alicia Steinmetz, “Reli­ gious Reasons in Public Deliberation,” in The Oxford Handbook of Deliberative Democracy, ed. Andre Bächtiger, John S. Dryzek, Jane Mansbridge, and Mark Warren (Oxford: Oxford University Press, 2018), 202–217; Paul Billingham and Jonathan Chaplin, “Law, Religion, and Public Reason,” in Research Handbook on Interdisciplinary Approaches to Law and Religion, ed. Russell Sandberg, Nor­ man Doe, Bronach Kane, and Caroline Roberts (Cheltenham: Edward Elgar Pub­ lishing, 2019), 128–148. 4 In Does Faith Belong in Politics? I consider, and seek to defuse, two other worries. First, that religious citizens often engage in a morally crusading form of politics. Second, that religious reasons cannot play a productive role in deliberation due to being inaccessible to other citizens. On the latter, see also Paul Billingham, “Reli­ gious Political Arguments, Accessibility, and Democratic Deliberation,” Notre Dame Law Review 98, no. 4 (2023). 5 J. Caleb Clanton, “Democratic Deliberation after Religious Gag Rules,” in The Ethics of Citizenship: Liberal Democracy and Religious Convictions, ed. J. Caleb Clanton (Waco, TX: Baylor University Press, 2009), 365–392. 6 For similar views, see Michael J. Perry, Love and Power: The Role of Religion and Morality in American Politics (New York: Oxford University Press, 1991), 100–105; Christopher J. Eberle, Religious Conviction in Liberal Politics (Cam­ bridge: Cambridge University Press, 2002), 102–103. 7 James W. Boettcher, “Strong Inclusionist Accounts of the Role of Religion in Polit­ ical Decision-Making,” Journal of Social Philosophy 36, no. 4 (2005): 497–516. 8 A similar argument is made by Vic McCracken, “In Defense of Restraint: Dem­ ocratic Respect, Public Justification, and Religious Conviction in Liberal Poli­ tics,” Journal of the Society of Christian Ethics 32, no. 1 (2012): 133–149, at pp. 139–141. 9 I unpack this ideal in more detail in Does Faith Belong in Politics? 10 Eberle, Religious Conviction, 102. 11 Clanton, “Democratic Deliberation.” 12 Ibid., 385. 13 Ibid.

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14 Clanton (Ibid., 386) suggests that such a moral argument begs the question, by not telling us why we should engage in deliberation in the first place. But my view does not assume that there is an obligation to deliberate. Instead, my claim is that if one is to engage in democratic deliberation then one must be appropriately fal­ libilistic regarding one’s political positions and arguments. 15 A different worry is that those who are not co-religionists will not be able to critically scrutinize religious political arguments, because they are inaccessible. I discuss that worry in my “Religious Political Arguments.” 16 For a helpful introduction to the diversity of Christian approaches to political questions, see Elizabeth Phillips, Political Theology: A Guide for the Perplexed (London: T&T Clark, 2012). For discussions that emphasize the fact of disa­ greement on normative and political questions among Muslims, see Abdullahi A. An Na’im, “Complementary, Not Competing, Claims of Law and Religion: An Islamic Perspective,” Pepperdine Law Review 39 (2013): 1231–1256; Moham­ mad Fadel, “The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law,” Canadian Journal of Law and Jurisprudence 21, no. 1 (2008): 5–70. 17 For one example of such an argument, which demonstrates this complexity, see Nigel Biggar, “ ‘God’ in Public Reason,” Studies in Christian Ethics 19, no. 1 (2006): 9–19. 18 Religious, especially Christian, citizens are often assumed to be on the right, espe­ cially in the context of the attention given to (white evangelical) Christian support for the Republican Party in the USA. The reality is more complex, with religious citizens found across the political spectrum. For religious voting patterns in the USA, see Allen D. Hertzke, Laura R. Olson, Kevin R. den Dulk, and Robert Booth Fowler, Religion and Politics in America: Faith, Culture, and Strategic Choices, 6th ed. (New York: Routledge, 2019), ch. 7. For the UK, see Ben Clements and Nick Spencer, Voting and Values in Britain: Does Religion Count? (London: Theos, 2014). For recent books exploring the religious left, see Steven H. Shiffrin, The Religious Left and Church-State Relations (Princeton, NJ: Princeton Univer­ sity Press, 2009); Anthony A. J. Williams, The Christian Left: An Introduction to Radical and Socialist Christian Thought (Cambridge: Polity Press, 2022). 19 John Wyatt, “AI and Digital Technologies,” in Christians in Parliament Briefing (Swindon: Bible Society, 2020), www.christiansinparliament.org.uk/resources/ briefings/. 20 Ibid., 4. 21 Ibid. 22 Ibid. 23 Ibid., 5. 24 Ibid. 25 Ibid. 26 Ibid., 6. 27 Ibid. 28 Ibid., 7. 29 To be clear, I am not claiming that Wyatt is in fact non-fallibilistic about these convictions. I am just using this possibility as an example. 30 Japa Pallikkathayil, “Disagreement and the Duties of Citizenship,” American Philosophical Quarterly 56, no. 1 (2019): 71–82. 31 Clanton, “Democratic Deliberation,” p. 392. It is not clear to me how Clanton’s view that is permissible to hold core religious beliefs non-fallibilistically coheres with his Peircean argument, which seems to imply that all beliefs must be held open to challenge from others. 32 Eberle, Religious Conviction, 103.

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33 See Anne Phillips, Unconditional Equals (Princeton, NJ: Princeton University Press, 2021), especially chapter  3. Phillips argues that basic equality is a com­ mitment or claim, rather than something for which we should seek deeper philo­ sophical justification. 34 Simone Chambers, “Secularism Minus Exclusion: Developing a ReligiousFriendly Idea of Public Reason,” The Good Society 19, no. 2 (2010): 16–21, at p. 19. 35 For one survey, from a Christian polling firm, see Barna Group, “TwoThirds of Christians Face Doubt” (25 July  2017), www.barna.com/research/ two-thirds-christians-face-doubt/. 36 My argument is also compatible with the claim that such fallibilism is required at the bar of some other normative standard. My view is limited to what is required of individuals qua citizen. 37 Boettcher, “Strong Inclusionist,” 509. Further, Boettcher also argues that citizens’ must engage in “deliberation within,” subjecting such convictions to critical scru­ tiny themselves, and being willing to change them within this process too. 38 Ibid., p. 508. Boettcher suggests that citizens might not need to open such beliefs to scrutiny if they also offer public reason arguments for their preferred policies. His view is different to Pallikkathayil’s in this respect. He is using this objection to defend a Rawlsian “duty of civility,” whereas Pallikkathayil’s “duty of respon­ siveness” is presented as an alternative to the Rawlsian view. This difference does not matter for my purposes here. 39 Ibid., 511. 40 Eberle, Religious Conviction, 103. 41 See also Giorgi Areshidze, “Taking Religion Seriously? Habermas on Religious Translation and Cooperative Learning in Post-Secular Society,” American Politi­ cal Science Review 111, no. 4 (2017): 724–737; Jeremy Waldron, “Two-Way Translation: The Ethics of Engaging with Religious Contributions in Public Delib­ eration,” Mercer Law Review 63, no. 3 (2012): 845–868. 42 For example, no one endorses laws against all lying or covetousness. The limits on what ought to be achieved through politics is a major theme of Christian political thought. See Paul Billingham, “Can Christians Join the Overlapping Consensus? Prospects and Pitfalls for a Christian Justification of Political Liberalism,” Social Theory and Practice 47, no. 3 (2021): 519–547. For relevant discussion in rela­ tion to Islam, see Fadel, “The True, the Good.”

References An Na’im, Abdullahi A., ‘Complementary, Not Competing, Claims of Law and Reli­ gion: An Islamic Perspective’, Pepperdine Law Review, 39 (2013): 1231–1256. Areshidze, Giorgi, ‘Taking Religion Seriously? Habermas on Religious Translation and Cooperative Learning in Post-Secular Society’, American Political Science Review, 111(4) (2017): 724–737. Barna Group, ‘Two-Thirds of Christians Face Doubt’ (25th July 2017). Available at www.barna.com/research/two-thirds-christians-face-doubt/. Biggar, Nigel, ‘“God” in Public Reason’, Studies in Christian Ethics, 19(1) (2006): 9–19. Billingham, Paul, ‘Can Christians Join the Overlapping Consensus? Prospects and Pitfalls for a Christian Justification of Political Liberalism’, Social Theory and Prac­ tice, 47(3) (2021): 519–547. ———, ‘Religious Political Arguments, Accessibility, and Democratic Deliberation’, Notre Dame Law Review, 98(4) (2023).

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———, and Jonathan Chaplin, ‘Law, Religion, and Public Reason’, in Russell Sandberg, Norman Doe, Bronach Kane, and Caroline Roberts (eds.), Research Hand­ book on Interdisciplinary Approaches to Law and Religion (Cheltenham: Edward Elgar Publishing, 2019), pp. 128–148. Billingham, Paul, and Marilie Coetsee, Does Faith Belong in Politics? A Debate (New York, NY: Routledge, forthcoming). Boettcher, James W., ‘Strong Inclusionist Accounts of the Role of Religion in Political Decision-Making’, Journal of Social Philosophy, 36(4) (2005): 497–516. Chambers, Simone, ‘Secularism Minus Exclusion: Developing a Religious-Friendly Idea of Public Reason’, The Good Society, 19(2) (2010): 16–21. Clanton, J. Caleb, ‘Democratic Deliberation after Religious Gag Rules’, in J. Caleb Clanton (ed.), The Ethics of Citizenship: Liberal Democracy and Religious Convic­ tions (Waco, TX: Baylor University Press, 2009), pp. 365–392. Clements, Ben, and Nick Spencer, Voting and Values in Britain: Does Religion Count? (London: Theos, 2014). Eberle, Christopher J., Religious Conviction in Liberal Politics (Cambridge: Cam­ bridge University Press, 2002), pp. 102–103. Fadel, Mohammad, ‘The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law’, Canadian Journal of Law and Jurisprudence, 21(1) (2008): 5–70. Hertzke, Allen D., Laura R. Olson, Kevin R. den Dulk, and Robert Booth Fowler, Religion and Politics in America: Faith, Culture, and Strategic Choices, 6th edition (New York, NY: Routledge, 2019). March, Andrew, and Alicia Steinmetz, ‘Religious Reasons in Public Deliberation’, in Andre Bächtiger, John S. Dryzek, Jane Mansbridge, and Mark Warren (eds.), The Oxford Handbook of Deliberative Democracy (Oxford: Oxford University Press, 2018), pp. 202–217. McCracken, Vic, ‘In Defense of Restraint: Democratic Respect, Public Justification, and Religious Conviction in Liberal Politics’, Journal of the Society of Christian Ethics, 32(1) (2012): 133–149. Pallikkathayil, Japa, ‘Disagreement and the Duties of Citizenship’, American Philo­ sophical Quarterly, 56(1) (2019): 71–82. Perry, Michael J., Love and Power: The Role of Religion and Morality in American Politics (New York, NY: Oxford University Press, 1991). Phillips, Anne, Unconditional Equals (Princeton, NJ: Princeton University Press, 2021). Phillips, Elizabeth, Political Theology: A  Guide for the Perplexed (London: T&T Clark, 2012). Rawls, John, Political Liberalism, expanded edition (New York, NY: Columbia Uni­ versity Press, 2005). Shiffrin, Steven H., The Religious Left and Church-State Relations (Princeton, NJ: Princeton University Press, 2009). Waldron, Jeremy, ‘Two-Way Translation: The Ethics of Engaging with Religious Con­ tributions in Public Deliberation’, Mercer Law Review, 63(3) (2012): 845–868. Williams, Anthony A.J., The Christian Left: An Introduction to Radical and Socialist Christian Thought (Cambridge: Polity Press, 2022). Wyatt, John, ‘AI and Digital Technologies’, Christians in Parliament Briefing (Swin­ don: Bible Society, 2020). Available at www.christiansinparliament.org.uk/ resources/briefings/.

10 The perfectionist challenge to relational theories of justice Natalie Stoljar

Introduction The last few decades have seen a relational turn in liberal political philoso­ phy.1 Autonomy theorists and egalitarians have reconceptualized the funda­ mental values of liberalism—those of autonomy and equality—in relational terms. Relational approaches incorporate social and often morally substan­ tive considerations into their theories of autonomy and equality. There are several reasons for this reconceptualization. The first is general dissatisfac­ tion with the notions of autonomy and equality that had become dominant in the philosophical literature, namely, content-neutral, procedural theories of autonomy, and distributive or luck egalitarian approaches to equality. Sec­ ond, philosophers concerned about the relationship between citizens and the state had emphasized ideal theories of justice, those suited to advancing the flourishing of idealized, abstract individuals. There is now a recognition that the starting point of political philosophy need not always be ideal; attention should also be given to the effects of social conditions on people’s equality and autonomy and to articulating these values to promote flourishing under nonideal, concrete circumstances. Third, and relatedly, the focus has turned to the explication and amelioration of injustice. There has been increasing inter­ est in how political philosophy should address persisting structural injustices that typically were overlooked by dominant theories. Structural injustices are not necessarily perpetrated by identifiable agents or institutions. Rather, they exist and are sustained through social norms, attitudes, and symbols that become entrenched in social practices. Relational approaches recognize that autonomy and equality are under threat from structural oppression and aim to provide an account that illuminates this threat. For instance, femi­ nist theories of relational autonomy explicate how gender oppression can be internalized and become unquestioned, even by women themselves, thereby interfering with autonomy. Similarly, relational egalitarians often focus on structural injustice and oppression. Elizabeth Anderson writes: “The proper negative aim of egalitarian justice .  .  . is .  .  . to end oppression, which by definition is socially imposed.”2

DOI: 10.4324/9781032702766-14

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This chapter addresses a challenge that has been leveled at relational approaches, namely, that by articulating autonomy and equality as incom­ patible with oppression and other unjust social hierarchies, relational theories become problematically perfectionist. Critics of relational autonomy observe that, if inegalitarian social arrangements themselves undermine autonomy, rationally competent people could in principle endorse the oppression under which they live, yet nevertheless be non-autonomous. This conclusion seems to delegitimize voluntarily formed conceptions of the good in the name of promoting autonomy.3 In addition, if relational approaches such as rela­ tional egalitarianism are considered to be theories of justice, it can be ques­ tioned whether they are compatible with political liberalism. According to political liberalism, it is not permissible to promote conceptions of justice or “comprehensive doctrines” unless they are delivered by public reason or are the subject of an overlapping consensus. Since relational theories employ potentially contested moral considerations in their articulation of autonomy and equality, arguably they do not maintain the required liberal neutrality but rather are perfectionist. The chapter examines the most significant argument for the conclusion that relational approaches are problematically perfectionist, namely, that per­ fectionism conflicts with a moral requirement of respect of persons.4 I argue that although indeed relational approaches are perfectionist, this does not entail that they violate respect. On the contrary, since one of the key commit­ ments of relational approaches is that the disrespect inherent in oppression undermines equality and autonomy, the charge that they implicitly permit disrespect has a “paradoxical air.”5 The first part of the chapter explains the approaches of relational autonomy and relational equality and identifies how each incorporates respect of persons. The second part turns to the perfec­ tionist critique and develops four possible responses to the critique. I argue, first, that the dominant theories rejected by relational approaches (content­ neutral theories of autonomy and distributive egalitarianism) are also open to a respect objection. It is not obvious that relational approaches fare worse than their rivals in the light of a requirement of respect. Second, even if it can be shown that relational approaches violate respect, this leads to a con­ flict within a principle of respect rather than an argument against relational theories. Third, the argument against perfectionism trades on an equivoca­ tion between two kinds of respect that are commonly distinguished in the philosophical literature: recognition respect and appraisal respect. Prioritiz­ ing recognition respect would imply that political liberalism itself violates a principle of respect, whereas prioritizing appraisal respect is insufficient to establish that perfectionism is morally problematic. Fourth, although the perfectionist challenge exploits the notion of respect, it does not specify an answer to a key question, namely, what “respecting persons requires of us.”6 For instance, respect of persons may entail negative constraints on attitudes or interpersonal treatment but may not require extensive positive duties. I  will suggest that respect of persons can be secured by a combination of

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negative constraints, including on the procedures implemented between citi­ zens and the state, and minimal positive duties. In particular, respect requires that we treat people as “beings capable of explaining themselves.”7 The latter implies a duty to provide citizens with the opportunity to be heard but does not restrict the state from promoting or hindering conceptions of the good. 1 Relational autonomy, relational equality, and respect The basic assumption of relational approaches is that theories of equality and autonomy should take people’s social embeddedness as their starting point. “Autonomy” and “equality” are not properties that attach to individuals in the abstract; rather, whether people have equality or autonomy depends on interpersonal treatment and attitudes as well as their position in social hierarchies such as class, gender, or race. Each literature critiques a dominant view precisely on the grounds that it gives insufficient weight to the effects of social–relational conditions on individuals’ equality and autonomy. Accord­ ing to relational approaches, dominant views do not adequately articulate how injustice arises as a result of people’s social relationships and social situ­ ation broadly.8 Relational egalitarianism is contrasted with the dominant approach of distributive egalitarianism on which having an equal share of resources, like material benefits, opportunities, or well-being, is sufficient for equality. People are equal as long as they have access to a fair and equal share of certain goods. Relational egalitarians argue however that while fair distribu­ tions may be important, equality is also a matter of how people treat and regard each other. In particular, fair distributions do not rule out hierarchies in which people are attributed unequal social status. Social hierarchies can be established intentionally and entrenched in political institutions, or they can be structural. For instance, Anderson explains relational inequality in terms of “what Iris Young has identified as the faces of [structural] oppression: marginalization, status hierarchy, domination, exploitation, and cultural imperialism.”9 She contrasts oppressive social hierarchies and “inegalitar­ ian ideologies of racism, sexism, nationalism, caste, class, and eugenics” with egalitarian political movements.10 Anderson distinguishes three kinds of social hierarchy that are problematic from the perspective of relational equal­ ity: hierarchies of esteem, domination, and standing.11 Hierarchies of esteem involve denigrating attitudes toward those with lower status, whereas hierar­ chies of domination and standing also involve unequal treatment. Therefore, whereas the distributive account does not import moral considerations into the notion of equality, relational equality seems to presuppose a substantive moral position, social equality, on which everyone is treated and regarded as having equal moral status. Similarly, relational autonomy contrasts with the content-neutral analysis of autonomy assumed by political liberalism. John Christman argues that autonomy is a matter of appropriate critical reflection on the history of one’s

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socialization: a person’s preferences are autonomous if the person does not (or would not) experience alienation after critical reflection on the historical processes leading to their formation.12 His analysis of autonomy is internal­ ist rather than relational. A  competent exercise of historical critical reflec­ tion that delivers a psychological state of endorsement or non-alienation is sufficient for autonomy. Christman acknowledges that social conditions could affect the formation of the capacities of critical reflection required for autonomy but claims that “[i]t is not social connectedness as such or even . . . hierarchical or unequal social relations that disturb autonomy.”13 According to relational approaches, however, social oppression undermines autonomy by reducing people’s options and damaging their capacities. Consider, for instance, the well-known example of the “Angel in the House”: “She was intensely sympathetic. She was immensely charming. She excelled in the dif­ ficult arts of family life. She sacrificed herself daily. If there was chicken, she took the leg, if there was a draught, she sat in it.”14 The norms of femininity internalized by the Angel—for example, that the role of wives is to cater to their husband’s needs—are almost indistinguishable from servility. Yet pref­ erences for servility seem contrary to the self-respect and sense of herself as an equal that the Angel (as a rational agent) would be expected to have absent the patriarchal oppression in which women are accorded second-class status. Oppressive socialization can stunt the development of the rational competency necessary for people to adequately scrutinize oppressive norms, for example, by not providing adequate education or exposure to alterna­ tives, and oppressive social conditions can reduce feasible options below a minimally acceptable level with the result that people imagine their futures and choose options only within this unacceptably narrow set of constraints. Relational theorists also argue that oppression hampers the self-regarding attitudes necessary for autonomy. Without robust self-trust and self-respect, people will be tentative in exercising rational competency and lack a sense of “standing behind” their own decisions. Subjecting people to persistent subordinating attitudes or treatment can erode self-trust and self-respect or impede them from developing in the first place, and in so doing undermine a self-authorization dimension of autonomy.15 The social equality to which relational egalitarians are committed is therefore also crucial for relational autonomy. Hierarchies of standing that eliminate adequate options or hierarchies of esteem that convey prejudiced or denigrating attitudes will undermine autonomy through the mechanisms just described. Moreover, a moral requirement of respect is integral to social equality. Social equality is characterized as requiring “relationships that express respect.”16 Anderson says that “the most fundamental test any egali­ tarian theory must meet” is “that its principles express equal respect and concern for all citizens.”17 How should we understand the requirement of respect? One broad division in the philosophical literature is that between “recognition” and “appraisal” respect.18 Recognition respect of persons is a

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moral requirement; it corresponds to an attitude (and associated treatment) that recognizes a person’s equal moral standing or status as an agent. It is “owed morally [to all people] just because they are persons, regardless of social position, individual characteristics or achievements, or moral merit.”19 Appraisal respect is an evaluative attitude that is not owed automatically but rather “is earned or deserved (or not) depending on whether and to the degree that the [person] is judged to meet certain standards.”20 Recognition respect is usually thought to be the requirement that is integral to social equality, because the latter corresponds to “equality of status [and] obtains when each member of society regards him- or herself as fundamentally the equal of all others and is regarded by others as fundamentally their equal.”21 Recogni­ tion disrespect, which implies the attribution of inferior moral standing, is inconsistent with social equality and undermines relational autonomy both directly and indirectly through undermining self-respect. For instance, subor­ dinating treatment (recognition disrespect) will restrict options in ways that violate autonomy directly. Suppose social arrangements confine women to a domestic sphere that curtails their options and restricts access to equal edu­ cation. Such external social arrangements extinguish autonomy directly by reducing opportunities below a morally acceptable level, preventing the nur­ turing of capacities of critical reflection, and limiting the futures that women imagine and take to be feasible. Recognition disrespect can also undermine autonomy indirectly by interfering with self-respect. It has been argued that self-respect is a fundamental “valuing of ourselves” which is “a function of social relationships and the structure and function of the social institutions among which we live.”22 Self-respect will be damaged by persistent exposure to social inequality because the messages people receive through the “invis­ ible lens” of their experience will be incompatible with a sense of their own equal worth.23 Although recognition respect is the kind of respect that is emphasized in both relational frameworks, there can also be morally unacceptable forms of appraisal. Rarely will messages of social inequality explicitly convey recogni­ tion disrespect by explicitly attributing inferior moral status. The attitudes and stereotypes that sustain structural oppression will often correspond to negative appraisals of capabilities—that is, judgments that people do not live up to certain standards. For instance, girls who persistently receive nega­ tive messages concerning their appearance—that it doesn’t correspond to expected beauty standards—are subject to a kind of unjustified appraisal disrespect which in turn may cause shame and loss of self-respect. Similarly, exposure to racist stereotypes about intellectual capabilities can undermine the self-respect of Black children who “gradually lower their expectations of themselves, until they effectively relinquish any ambitions of academic suc­ cess.”24 In both examples, it is unjustified appraisal disrespect, rather that recognition disrespect per se, that is the culprit. Indeed, recognition disre­ spect and unjustified or arbitrary appraisal disrespect are often inextricably

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linked. The appraisal of women as intuitive rather than rational is a form of unjustified appraisal disrespect; it mistakenly claims that women’s capabili­ ties do not meet the standards of rationality that are required for full partici­ pation as citizens in public life. Further, this appraisal of women’s capabilities has been used as a justification for attributing women second class status and denying them recognition respect. Unjustified appraisal disrespect of the capabilities of women as a group in this case bolsters recognition disrespect. Conversely, recognition disrespect can license unjustified appraisals. Nega­ tive stereotypes of untrustworthiness, unreliability, and criminality (that is, negative appraisals) have become attached to Blackness in the United States. These stereotypes are the direct legacy of slavery and the Jim Crow era in which Black people lived under a system of laws that denied them equal standing. Once such stereotypes become entrenched, and people form preju­ dices and habits of behavior on the basis of them, they are almost impos­ sible to dislodge. Criminality continues to be associated with being a Black man in America “no matter how much their deportment or attire conform to the traditional standards of well-off White males.”25 This is a significant reason that structural oppression persists despite a commitment to equality and recognition respect at the level of laws and institutions. An important conclusion follows: even if social equality does not imply a positive duty of appraisal respect, it includes a negative duty to avoid forms of unjustified appraisal disrespect that are interconnected in the ways mentioned to recog­ nition disrespect. 2 The perfectionist challenge and whether it succeeds I just argued that relational approaches require social equality which in turn requires recognition respect and the avoidance of recognition disrespect and associated forms of unjustified appraisal disrespect. But precisely because relational equality and relational autonomy incorporate potentially contested moral requirements, they face the charge of perfectionism. I will discuss two relevant perfectionist claims here.26 The first is that there are goods for peo­ ple that are objectively good or “good in themselves and not good [just] in virtue of the fact that they are desired or enjoyed by human beings.”27 Christman seems to rely on this claim when he objects to relational autonomy on the grounds that it implies that “values and moral principles can be valid for a person independent of her judgment of those values and principles” and “there are certain objectively determined intrinsic values that should guide individual and social action independently of the endorsement of those values by minimally rational, autonomous individuals.”28 A second perfec­ tionism claim is what has been termed “perfectionist liberalism.”29 Whereas political liberalism implies a “doctrine of restraint [which] advocates neu­ trality between valid and invalid ideals of the good”—it permits the state to promote moral ideals only if they are delivered by public reason or subject to an overlapping consensus—perfectionist liberalism permits the state to “help

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acceptable ideals more than unacceptable ones” and to hinder unacceptable ideals more than acceptable ones.30 Some relational approaches aim to avoid perfectionist liberalism. For instance, a recent argument for relational egalitarianism is committed to “a neutral, non-perfectionist view [which] insists that the use of political power in pursuit of justice must not be justified on the basis of its furthering any par­ ticular conception of what constitutes a good (individual or communal) life.”31 However, for the sake of the argument here, I will assume both perfectionist claims. I  will assume that respect, equality, and autonomy are valuable for human flourishing independent of whether people actually endorse these val­ ues. Further, since equality and autonomy are core values of liberalism, it seems “paradoxical” to claim that liberal political arrangements should not promote them.32 So I  will further assume a form of perfectionist liberalism, namely, that there is a political obligation to promote the best possible conceptions of equality and autonomy, which by hypothesis are the relational, substantive conceptions that I have articulated here. The assumed perfectionism is quite cir­ cumscribed, however, and is compatible with state neutrality regarding a wide range of conceptions of the good. For instance, people whose lives are guided by astrology, or anti-vaxxers who advocate new age therapies, might have con­ ceptions of the good that are unsound either epistemically or morally.33 If these doctrines do not arise due to oppression, and are not themselves disrespectful, they will be of no concern to relational perfectionist versions of liberalism. Should either perfectionist claim be rejected for the reason that it is disre­ spectful? Regarding the first, Christman’s comments imply that it would be disrespectful to assert that some conception of the good is valid for a ration­ ally competent agent irrespective of whether they endorse it.34 For instance, if a rationally competent woman living under patriarchal oppression endorses that social arrangement, it may seem disrespectful to contradict her own assessment of what is important for her flourishing. It may seem disrespect­ ful to imply that “she lacks authority over her own voice.”35 Proponents of content-neutral autonomy often suggest that it is the specific attribution of non-autonomy in the face of a person’s voluntarily formed conception of the good that is disrespectful, not simply the claim that their life does not conform to an objective conception of human flourishing.36 Regarding the second perfectionist claim—perfectionist liberalism—it is argued that respect for persons leads to the conclusion that they ought to have lib­ erty to pursue commitments that lie at the core of their identity, pro­ vided that they do not violate the rights of others and that no other compelling state interest intervenes.37 Respect of persons requires therefore that the state refrain from hindering the expression of these identities: “we respect persons [when] we think that their comprehensive doctrines deserve space to unfold themselves, and deserve respectful, nonderogatory treatment from government.”38

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In the rest of the chapter, I  develop four responses to the position that relational equality and relational autonomy are unacceptably perfectionist because they violate a moral requirement of respect. The first questions the assumption that relational approaches fare worse than their rivals relative to respect. The rival positions to relational approaches—content-neutral con­ ceptions of autonomy and distributive conceptions of equality—themselves raise questions about the extent to which they presuppose moral content or violate respect, and it should not be assumed that they will be more effective in avoiding perfectionism than relational approaches. Consider first the posi­ tion that content-neutral conceptions should be preferred over substantive conceptions of autonomy. It is questionable whether this position is compat­ ible with political liberalism: “it is highly contentious to assume that even a content-neutral conception of autonomy could be the subject of an over­ lapping consensus.”39 If content-neutral autonomy is itself a comprehensive doctrine, promoting it is potentially a form of perfectionism that disrespects alternative views of autonomy. In addition, Christman’s analysis may not be able to maintain the moral neutrality to which it aspires. On his view, although oppression is not inherently incompatible with autonomy, typi­ cally autonomy will be “squelched” by oppression because most victims of oppression will be “unable to see themselves (without alienation) as even part author of the social narrative of which they are a part.”40 On the con­ trary however, it is more likely that living under oppression will not lead to alienation because self-conceptions are constructed by social narratives that provide incentives to adapt to oppressive norms. To avoid this consequence, Christman could argue that critical reflection must be honed so as to encour­ age people to imagine alternative options and repudiate the oppressive norms implicit in social narratives. But developing such critical reflection will itself require morally substantive social arrangements, such as access to education that is not differentiated on the basis of class, gender or race. Concerns about respect arise also for the most prominent rival view to relational egalitarianism, luck egalitarianism. The latter proposes that une­ qual distributions “are just if and only if certain facts about responsibility obtain with respect to those inequalities.”41 That is, an unequal distribu­ tion is not problematic if those who are disadvantaged are responsible, or should be held responsible, for the inequality. Therefore, to assess whether an inequality is justified might require “intrusive and disrespectful inquir­ ies that issue in public negative assessments of people’s traits” to justify the conclusion that they “are not properly held personally responsible for their misfortune.”42 Although the disrespect generated by such intrusive inquiries might seem to correspond to appraisal disrespect—which if justified might not be morally problematic—it could also correspond to recognition dis­ respect. It has been argued that respect of people qua citizens in the public sphere requires “opacity”—that is, “adopting of a perspective that is exter­ nal to a human agent .  .  . [or] respect for a kind of outward dignity, .  .  .

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taking the agent as given and refraining from ‘looking inside.’ ”43 If this is so, the implication of luck egalitarianism that it is permissible to scrutinize people’s internal capacities, especially those of the already disadvantaged, could constitute a violation of recognition respect of their equal standing as moral agents. In short, the assumption that rival conceptions of equality and autonomy are immune to a perfectionist challenge is incorrect. Relational approaches do not obviously fare worse compared with dominant views. The second response to the perfectionist challenge is to agree that rela­ tional approaches do indeed violate a moral requirement of respect but argue that this generates an internal conflict within the respect requirement, not an argument against relational approaches. At the level of the state, relational approaches recommend the implementation of laws and policies that pro­ mote social equality. (Attitudes and treatment that advance social equality in private contexts such as families, clubs, or religious organizations would also be recommended as a matter of interpersonal morality.) The goal of social equality would justify laws or policies in a broad range of contexts, such as (to name but a few) regulation of hate speech; policies to eradicate implicit biases that generate prejudiced treatment of citizens by the police or other criminal justice authorities; public funding of educational institu­ tions to favor those promoting social equality and penalize those that do not; evaluations of religious and other non-government organizations for eli­ gibility for charitable status and/or tax exemptions on the basis of whether the organization advances or impedes social equality. Many of these laws and policies would employ a contested comprehensive doctrine and therefore would impede the “unfolding” of competing doctrines. For instance, hate speech laws presuppose a conception of free speech on which broad legal curbs on speech are morally permissible. There is reasonable disagreement over this conception of free speech; some argue that laws regulating speech should be restricted to those minimally necessary to keep the peace in public spaces or advance a compelling state interest, as in perjury laws that promote truthful testimony in courts. For the sake of argument, let’s agree with political liberalism that in advanc­ ing a contested conception of free speech, hate speech laws would disrespect the personhood of those opposing the doctrine of free speech implicit in hate speech laws. On the other hand, hate speech laws aim to promote respect. The most objectionable forms of hate speech describe targeted groups as less than human, and so correspond to attitudes and expression that violate recognition respect. Other forms of hate speech express hostile stereotypes or imply that discriminatory and denigrating labels are appropriately applied to targeted groups, and hence align more closely with appraisal disrespect. The goal of legal regulation is to remove both forms of hate speech from public discourse and thereby render the social environment more respectful to tar­ geted groups. Hence, even if political liberalism is correct that hate speech laws are disrespectful of those holding opposing doctrines of free speech, this

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does not lead to a conclusive argument against relational theories. It rather establishes that there is a conflict within the principle of respect that will need to be resolved by assessing which group is being disrespected more severely, the citizens targeted by hate speech or those whose moral ideals oppose hate speech laws. Thus, in general, even if we assume that relational approaches are disrespectful to persons whose ideals do not prioritize social equality, they may not be disrespectful to persons all things considered. The third response is that the defense of political liberalism that employs a respect argument equivocates between recognition and appraisal respect. When respect is taken to be recognition respect, political liberalism is also subject to a respect objection. However, when respect is taken to be appraisal respect, there is no respect argument against perfectionist liberalism. As is well-known, political liberalism distinguishes between reasonable and unrea­ sonable conceptions of the good. Conceptions of the good to which citizens reasonably object (including those that are sound) cannot be promoted, and unsound conceptions which are reasonable cannot be hindered.44 Only unrea­ sonable conceptions can be hindered without falling foul of state neutrality. If the test of reasonableness is permissive, there will be many conceptions of the good that will be deemed reasonable yet will be unsound, and the category of unreasonable conceptions will be narrow. Nevertheless, certain conceptions will be unreasonable even on a permissive conception of reasonableness. It is plausible, for instance, that white nationalist conceptions that advocate antimiscegenation laws criminalizing interracial marriage will be unreasonable. Martha Nussbaum argues that it would be disrespectful to hinder all con­ ceptions of the good that lie “at the core of a person’s identity” and are “so deeply a part of people’s search for the meaning of life that public gov­ ernmental denigration of those doctrines puts those people at a disadvan­ tage, suggesting that they are less worthy than other citizens.”45 However, unreasonable conceptions are also part of the core of people’s identities. The white nationalism that would support anti-miscegenation laws is very much identity-constituting. If Nussbaum’s objection to perfectionism liberalism is based on recognition respect, it can also be leveled at political liberalism. It is just as disrespectful to the agent to hinder an unreasonable conception as it would be to hinder a reasonable one. If disrespect is equivalent to recognition disrespect, it would be disrespectful even to unreasonable agents to prevent their racist views to unfold because there is a moral obligation of recognition respect to all persons qua agents, even to those holding unreasonable, objec­ tionable conceptions of the good. This conclusion may suggest that the notion of respect inherent in Nuss­ baum’s criticism is rather appraisal respect. As argued above, there is no moral requirement of appraisal respect (positive evaluation), although there is a negative duty not to engage in arbitrary or unjustified appraisal disre­ spect. It is impermissible to evaluate any person as “worthless garbage” or as “vermin or dirt.”46 Thus, although there are moral limits to the negative

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appraisal that it would be permissible to direct at a white nationalist, they are not entitled to appraisal respect for the aspect of their character that is expressed through their commitment to an invalid moral ideal. Hence, employing appraisal respect delivers the right verdict for political liberalism with respect to unreasonable conceptions of the good: it is not disrespectful for the state to hinder these conceptions. Nevertheless, employing appraisal respect generates a further objection to political liberalism. There is no argument for state neutrality on the basis of appraisal respect, because negative appraisal of unsound conceptions would not be disrespectful. Just as there is no obligation to positively appraise peo­ ple who hold unreasonable moral ideals, there is also no obligation to posi­ tively appraise people who hold unsound ones, even if they are reasonable. As Andréa Daventry comments, positive appraisal of a person holding a con­ ception of the good with which you disagree or take to be unsound is not morally required: [S]omeone writing about the wrongness of meat-eating [can do so when] all the while there are meat-eaters out there who take themselves to be doing nothing wrong. Certainly, the writer does not owe it to the meat-eater to respect them as a person in virtue of their proper treat­ ment of animals, even though the meat-eater may think they are deserv­ ing of this respect. Of course, the writer may still owe the meat-eater respect as a person in virtue of other positive traits they may have.47 If there is no obligation of appraisal respect of people relative to their support of unsound ideals, then state neutrality with respect to unsound but reason­ able conceptions cannot be grounded in appraisal respect. The fourth response to the perfectionism challenge is that it employs a conception of respect that is too demanding both of interpersonal relations and of relations between the state and citizens. Recall the two perfectionist claims that are relevant for the discussion here: that there are objective goods that are valid for people irrespective of whether they endorse them, and the perfectionist liberalism that rejects the liberal ideal of state neutrality. Both are taken to be disrespectful of persons. It is putatively disrespectful to con­ tradict people’s own conception of what is important for their flourishing or to attribute non-autonomy even when they “speak on behalf” of their commitments. And it is putatively disrespectful for the state to hinder peo­ ple’s reasonable conceptions of the good. Hence, the perfectionism challenge is that relational approaches disrespect persons either through disrespect­ ing their doctrines (because these doctrines are expressions of identity) or through attributing non-autonomy despite the person’s own endorsement of their socialization or social conditions. Both forms of the challenge are questionable because both presuppose a notion of recognition respect—namely, respect that is due to all persons as

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persons—that is too demanding. There is a constellation of attitudes and interpersonal treatment that is required to secure recognition respect. It includes appreciating that persons as such have a distinctive moral standing and worth, understanding this standing and worth as the source of moral constraints on one’s attitudes, desires, and conduct, and viewing, valu­ ing, and treating [persons] only in ways that are appropriate to and due persons.48 Thus, there are negative constraints with which attitudes and treatment must comply to count as respectful. For instance, in all interpersonal contexts, respect requires that we avoid regarding or treating others as worthless gar­ bage; in the public sphere, respect may require that the state preserve citizens’ outward dignity or “opacity” by not engaging in intrusive scrutiny of their agential capacities. There is also a positive requirement of respect, namely, to view and treat others as persons with rational capacities and points of view. This implies treating them as “beings capable of explaining themselves” and “paying attention to [their] point of view.”49 At the level of the state, recogni­ tion respect therefore requires providing genuine opportunities for citizens to participate in collective decision-making and to express their point of view when they are subjected to the decisions of the state. Indeed, there is evidence that in legal contexts, citizens feel respected when legal procedures provide them with an opportunity to be heard: [It is] perceived as a symbolic marker of inclusion within the larger community, conveying the information that one is a valued member of the group, whose views are worthy of being heard. Conversely, not to be allowed to present one’s own side would be experienced as an expression of contempt, which in turn would detrimentally affect one’s sense of self-worth or respect.50 Notice that the positive obligation to treat others as agents with a point of view, and to provide them with an opportunity to be heard, does not require refraining from attributing non-autonomy. Attributing non-autonomy is dis­ tinct from denying personhood or agency, and the assessment that someone is non-autonomous due to their socialization or social conditions is compatible with respecting their agential capacities.51 Neither does the obligation to treat people as agents with the capacity to explain themselves extend to upholding their points of view or providing supportive conditions for the unimpeded exercise of their ideals. As just noted for the case of legal procedures, peo­ ple feel respected and indeed have increased self-respect when authorities provide an opportunity to be heard. In general, there is evidence that people care about the “interpersonal quality of their interactions” with the state,

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including whether appropriate attitudes are expressed.52 This is independent of whether the treatment issues in certain outcomes. The fact that people per­ ceive interactions as respectful is some evidence that respect does not require that people’s preferred outcomes are always accorded an opportunity to be realized. In other words, respect of persons inheres in the non-instrumental and process-related aspects of treatment and does not require that treatment have the result of upholding (or not impeding) people’s conceptions of the good.53 Conclusion Relational approaches to equality and autonomy import substantive moral content into their theories—a commitment to social equality—and hence are subject to a perfectionism challenge. I have argued that the perfectionism inte­ gral to relational approaches is not morally problematic. These approaches do not violate a moral principle of respect but rather seek to advance respect, all things considered. Respect can be secured through negative constraints on attitudes and treatment that avoid morally objectionable forms of disrespect, in conjunction with a positive requirement to afford others the opportunity to develop and express their points of view. The positive requirement can be satisfied through the process-related aspects of treatment and need not extend to permitting the contents of citizens’ comprehensive doctrines to unfold. Notes 1 Natalie Stoljar and Kristin Voigt, “Introduction. A  Relational Turn in Political Philosophy,” in Autonomy and Equality. Relational Approaches, ed. N. Stoljar and K. Voigt (New York: Routledge, 2022). 2 Elizabeth Anderson, “What Is the Point of Equality?,” Ethics 109 (1999): 287– 337, 288. 3 John Christman, The Politics of Persons. Individual Autonomy and Socio-His­ torical Selves (Cambridge: Cambridge University Press, 2009), 170–173; John Christman, “Relational Autonomy, Liberal Individualism, and the Social Consti­ tution of Selves,” Philosophical Studies 117 (2004): 143–164. 4 An important argument employing respect is offered in Martha Nussbaum, “Per­ fectionist Liberalism and Political Liberalism,” Philosophy and Public Affairs 39 (2011): 3–45. There may be other reasons that perfectionism is morally objection­ able, but I address only the respect argument in this chapter. 5 Joseph Raz uses this phrase in another (related) context when discussing political liberalism in The Morality of Freedom (Oxford: Oxford University Press, 1986), 111. 6 Robin Dillon, “Respect,” in The Stanford Encyclopedia of Philosophy, Fall 2022 ed., ed. E. N. Zalta and U. Nodelman, https://plato.stanford.edu/archives/ fall2022/entries/respect/, Section 2.1. 7 Dillon discusses the issue of whether respect requires negative constraints or posi­ tive duties (Ibid.) Waldron argues that respecting the dignity of persons requires treating them as “beings capable of explaining themselves” in Jeremy Waldron, “The Rule of Law and the Importance of Procedure,” Nomos 50 (2011): 3–31, 16.

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Stoljar and Voigt, A Relational Turn, 1. Anderson, The Point of Equality, 312. Ibid. Elizabeth Anderson, “Equality,” in The Oxford Handbook of Political Philoso­ phy, ed. D. Estlund (Oxford: Oxford University Press, 2012), 40–57. Christman, Politics of Persons, 155–156. Ibid., 172. Virginia Woolf, “Professions for Women,” in Women and Writing, edited with an introduction by M. Barrett (New York: Harcourt Brace Jovanovich, 1942/1979), 57–63, 59. Catriona Mackenzie develops the self-authorization dimension of autonomy in “Three Dimensions of Autonomy. A Relational Analysis,” in Autonomy, Oppres­ sion and Gender, ed. A. Veltman and M. Piper (New York: Oxford University Press, 2014), 15–41. Carina Fourie, Fabian Schuppert, and Ivo Wallimann-Helmer, “Nature and Dis­ tinctiveness of Social Inequality: An Introduction,” in Social Equality: On What It Means to Be Equals ed. C. Fourie, F. Schuppert and I. Wallimann-Helmer (Oxford: Oxford University Press, 2015), 1–16, 3. Anderson, The Point of Equality, 289. Stephen L. Darwall, “Two Kinds of Respect,” Ethics 88 (1977): 36–49. Dillon, “Respect,” Section 2. Ibid., Section  1.2. This division parallels two senses of self-respect: recognition or “standing self-respect,” implies that one has appropriate self-regard relative to one’s moral standing and appraisal or “standards” self-respect that corresponds to a positive evaluation of one’s skills or characteristics in the light of one’s val­ ues or standards: Christian Schemmel, “Real Self-Respect and Its Social Bases,” Canadian Journal of Philosophy 49 (2019): 628–651, 631; cf. Darwall, “Two Kinds of Respect;” Dillon, “Respect,” Section 4.1. David Miller, “Equality and Justice,” Ratio 10 (1997): 222–237, 224. Robin Dillon, “Self-Respect: Moral, Emotional, Political,” Ethics 107 (1997): 226–249, 244. Ibid., 241. Michele Moody-Adams, “Race, Class and the Social Construction of Self Respect,” The Philosophical Forum XXIV (1992–3): 251–266, 262. Laurence Thomas, “In My Next Life, I’ll Be White,” Ebony (December 1, 1990), 84. For a comprehensive discussion of perfectionism, see Steven Wall, “Perfectionism in Moral and Political Philosophy,” in The Stanford Encyclopedia of Philosophy, Fall 2021 ed., ed. E. N. Zalta, https://plato.stanford.edu/archives/fall2021/entries/ perfectionism-moral/. Ibid. Christman, Politics of Persons, 173. Martha Nussbaum, “Perfectionist Liberalism.” Raz, Morality of Freedom, 110–111. Christian Schemmel, Justice and Egalitarian Relations (New York: Oxford Uni­ versity Press, 2021), 9, fn 14. Cf. Raz, Morality of Freedom, 111. These examples are discussed in Nussbaum, “Perfectionist Liberalism,” 25–26. Christman, Politics of Persons, 170–173. Andrea Westlund, “Rethinking Relational Autonomy,” Hypatia 24 (2009): 26–49, 29. See Andréa Daventry, “Respecting the Oppressed in the Personal Autonomy Debate,” Philosophical Studies 178 (2021): 2557–2578. Nussbaum, “Perfectionist Liberalism,” 17. Nussbaum’s position is discussed in Wall, “Perfectionism,” Section 3.2.

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38 Ibid., 33; cf. Wall, Ibid., 477 39 Suzy Killmister, “Autonomy, Liberalism, and Anti-Perfectionism,” Res Publica 19 (2013): 353–369, 356. 40 Christman, Politics of Persons, 172. 41 G. A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008), 300. 42 This objection is made by Jonathan Wolff, “Fairness, Respect, and the Egalitar­ ian Ethos,” Philosophy and Public Affairs 27 (1998): 97–122, and is discussed in Richard Arneson, “Egalitarianism,” in The Stanford Encyclopedia of Philoso­ phy (Summer 2013 Edition), ed. E. N. Zalta, https://plato.stanford.edu/archives/ sum2013/entries/egalitarianism/, Section 4. 43 Ian Carter, “Respect and the Basis of Equality,” Ethics 121 (2011): 538–571, 556. 44 Steven Wall, “Perfectionism, Reasonableness and Respect,” Political Theory 42 (2014): 464–489, 471. 45 Nussbaum, “Perfectionism Liberalism,” 22. 46 Dillon, “Respect,” Section 2.1. Note that in Dillon’s discussion these evaluations are being used as examples of recognition disrespect. As I argued above, it may be that rather they are examples of impermissible appraisal disrespect. 47 Daventry, “Respecting the Oppressed,” 2575. 48 Dillon, “Respect,” Section 2. 49 Waldron, “The Rule of Law,” 16. 50 Denise Meyerson, “The Moral Justification for the Right to Make Full Answer and Defence,” Oxford Journal of Legal Studies 35 (2015): 237–265, 259. Note that feeling respected is evidence that one actually is being respected, even if feel­ ing respected does not always correspond to being respected. 51 There is a comprehensive rebuttal of arguments claiming that the attribution nonautonomy is disrespectful in Daventry, “Respecting the Oppressed.” 52 Meyerson, “Moral Justification,” 257. See discussion and references in Ibid., 255–256. 53 I provide a more detailed development of a process-related conception of respect in Natalie Stoljar, “Relational Autonomy and Perfectionism,” Moral Philosophy and Politics 4 (2017): 27–41.

References Anderson, Elizabeth. 1999. “What Is the Point of Equality?.” Ethics 109, no. 2: 287–337. ———. 2012. “Equality.” In D. Estlund (ed.), The Oxford Handbook of Political Philosophy (Oxford: Oxford University Press): 40–57. Arneson, Richard J. 2013. “Egalitarianism.” In E. N. Zalta (ed.), The Stanford Ency­ clopedia of Philosophy (Summer 2013 Edition), https://plato.stanford.edu/archives/ sum2013/entries/egalitarianism/. Carter, Ian. 2011. “Respect and the Basis of Equality.” Ethics 12, no. 3 (2011): 538–571. Christman, John. 2004. “Relational Autonomy, Liberal Individualism, and the Social Constitution of Selves.” Philosophical Studies 117, no. ½: 143–164. ———. 2009. The Politics of Persons. Individual Autonomy and Socio-Historical Selves. Cambridge: Cambridge University Press. Cohen, G. A. 2008. Rescuing Justice and Equality. Cambridge, MA: Harvard Uni­ versity Press. Darwall, Stephen L. 1977. “Two Kinds of Respect.” Ethics 88, no. 1: 36–49.

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Daventry, Andréa. 2021. “Respecting the Oppressed in the Personal Autonomy Debate.” Philosophical Studies 178: 2557–2578. Dillon, Robin. 1997. “Self-Respect: Moral, Emotional, Political.” Ethics 107, no. 2, 226–249. ———. 2022. “Respect.” In E. N. Zalta and U. Nodelman (eds.), The Stanford Ency­ clopedia of Philosophy (Fall 2022 Edition), https://plato.stanford.edu/archives/ fall2022/entries/respect/ Fourie, Carina, Fabian Schuppert, and Ivo Wallimann-Helmer. 2015. “Nature and Distinctiveness of Social Inequality: An Introduction.” In C. Fourie, F. Schuppert, and I. Wallimann-Helmer (eds.), Social Equality: On What It Means to Be Equals (Oxford: Oxford University Press): 1–16. Killmister, Suzy. 2013. “Autonomy, Liberalism, and Anti-Perfectionism.” Res Publica 19, no. 4: 353–369. Mackenzie, Catriona. 2014. “Three Dimensions of Autonomy. A Relational Analy­ sis.” In A. Veltman and M. Piper (eds.), Autonomy, Oppression and Gender (New York: Oxford University Press): 15–41. Meyerson, Denise. 2015. “The Moral Justification for the Right to Make Full Answer and Defence.” Oxford Journal of Legal Studies 35: 237–265. Miller, David. 1997. “Equality and Justice.” Ratio 10, no. 3: 222–237. Moody-Adams, Michele M. 1992–3. “Race, Class and the Social Construction of Self Respect.” The Philosophical Forum XXIV, no. 1–3: 251–266. Nussbaum, Martha. 2011. “Perfectionist Liberalism and Political Liberalism.” Phi­ losophy and Public Affairs 39, no. 1: 3–45. Raz, Joseph. 1986. The Morality of Freedom. Oxford: Oxford University Press. Schemmel, Christian. 2019. “Real Self-Respect and Its Social Bases.” Canadian Jour­ nal of Philosophy 49, no. 5: 628–651. ———. 2021. Justice and Egalitarian Relations. New York: Oxford University Press. Stoljar, Natalie. 2017. “Relational Autonomy and Perfectionism.” Moral Philosophy and Politics 4, no. 1: 27–41. ——— and Kristin Voigt. 2022. “Introduction. A  Relational Turn in Political Phi­ losophy.” In N. Stoljar and K. Voigt (eds.), Autonomy and Equality. Relational Approaches (New York: Routledge). Thomas, Laurence. 1990. “In My Next Life, I’ll Be White,” Ebony 46, no. 2 (Decem­ ber 1990): 84. Waldron, Jeremy. 2011. “The Rule of Law and the Importance of Procedure.” Nomos 50: 3–31. Wall, Steven. 2014. “Perfectionism, Reasonableness and Respect.” Political Theory 42: 464–489. ———. 2021. “Perfectionism in Moral and Political Philosophy.” In E. N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Fall 2021 Edition), https://plato.stan­ ford.edu/archives/fall2021/entries/perfectionism-moral/. Westlund, Andrea. 2009. “Rethinking Relational Autonomy.” Hypatia 24, no. 4: 26–49. Wolff, Jonathan. 1998. “Fairness, Respect, and the Egalitarian Ethos.” Philosophy and Public Affairs 27 no. 2: 97–122. Woolf, Virginia. 1942/1979. “Professions for Women.” In Women and Writing, edited with an introduction by M. Barrett (New York: Harcourt Brace Jovanovich): 57–63.

11 Toleration Beyond minimal, negative liberty Andrew R. Murphy

Introduction Toleration, it must be said, often gets a bad rap, derided as insufficiently robust and respectful on the one hand, and condemned as insufficiently committed to the good and the true on the other. Scholars have variously called toleration “one of the defining topics of modern political philosophy,” “one of the great issues of scholarly interest” in our time, and “profoundly important . . . address[ing] some of the most difficult and persistent features of human social relations.”1 But such celebration has hardly been universal or uniform. In its original formulation, which pertained to matters of early modern religious exercise, toleration occupied “a halfway house between an attitude by the state of ecclesiastical exclusion . . . and . . . freedom of con­ science and equality of different religious organizations before the law.”2 (In other words, not persecution, to be sure, but far short of anything that could be called religious freedom.) To its contemporary critics, toleration remains implicated in deeply problematic political phenomena like imperialism, colo­ nialism, and liberal-capitalist hegemony. There are many places one might start to plumb the ambiguous heritage of toleration. But perhaps the most interesting one, for our purposes, is the following eighteenth-century observation, offered by no less a luminary than the first President of the United States: It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.3 In this celebrated 1790 letter to the Jewish community of Newport, Rhode Island, George Washington described the young nation as having moved beyond “toleration.” Explicitly contrasting the United States to the nations of Europe, where established churches (sometimes) offered “indulgence” to DOI: 10.4324/9781032702766-15

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“Dissenters” from positions of power and privilege, the American model, according to Washington (by no means an impartial observer) grounded itself in respect for its citizens’ “inherent natural rights” to the exercise of their religion. Just 100 years after the passage of the Toleration Act in England— one of the great achievements of seventeenth-century political, theological, and philosophical struggle4—toleration was thus consigned to a kind of political oblivion, nudged to the side in favor of an apparently more robust commitment to the rights of conscientious citizens. (Nor was Washington alone in this assessment of toleration’s obsolescence: Thomas Paine as well, in his celebrated Rights of Man, contrasted toleration with more far-reach­ ing understandings of liberty: “The French constitution hath abolished or renounced Toleration, and Intolerance also, and hath established Universal Right of Conscience,” Paine wrote.5) But critiques of toleration—or its sometime partner and cognate term, “tolerance”—are hardly the unique province of eighteenth-century politi­ cians. Robert Paul Wolff attacked tolerance as “ultimately indefensible in the contemporary age,” and insisted that our goal, instead, should be to “tran­ scend tolerance.”6 For his part, Herbert Marcuse began his contribution to A Critique of Pure Tolerance by insisting that “what is proclaimed and practiced as tolerance today, is in many of its most effective manifestations serving the cause of oppression.” In place of the currently existing regime of “repressive tolerance,” he sketched out an ambitious program that would undo its pernicious effects: “the withdrawal of toleration of speech and assembly from groups and movements which promote aggressive policies, armament, chauvinism, discrimination on the grounds of race and religion, or which oppose the extension of public services, social security, [and] medical care,” as well as the possibility of “new and rigid restrictions on teachings and practices in the educational institutions.” Such “liberating tolerance . . . would mean intolerance against movements from the Right and toleration of movements from the Left.”7 More recently, Wendy Brown has sought to call attention to what she calls a “global renais­ sance in tolerance talk,” viewing “tolerance discourse in the United States” as “operat[ing] from a conceit of neutrality that is actually thick with bourgeois Protestant norms.”8 In what follows, I shall argue that the tolerationist legacy is neither as unsavory as its detractors maintain nor a panacea for the many types of difference that animate contemporary social and political tensions. 1 Tolerance, toleration, and negative liberty: historical and conceptual foundations Rooted in the Latin tolerare—to bear with, or endure—toleration remains one of the most foundational, and contentious, concepts in contemporary

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political discourse. At its most basic level, toleration refers to a set of political and/or institutional practices guaranteeing members of unpopular or margin­ alized groups protections from legal punishment, persecution, or harassment. Although its modern origins lie in the realm of religion, toleration is routinely invoked in contemporary debates surrounding race, gender, religion, sexual­ ity, cultural identity, speech, and civil liberties. The broader backdrop of the tolerationist tradition in contemporary liberal regimes lies in the early mod­ ern European context, which both produced a litany of arguments in favor of religious liberty and provided the intellectual context in which such argu­ ments would take hold. Without delving into the details of those arguments (I have done so, at length, elsewhere9), suffice it to say that over the course of the seventeenth century, an increasingly sophisticated movement advanced a robust discourse framing toleration and liberty of conscience—alongside representative political institutions, jury trial, free markets, and liberties of speech, press, and assembly—as essential elements of legitimate government. The origins of toleration in the realm of religion were crucial to its devel­ opment in the early modern world, but toleration has always been an elastic concept, expanding from basic liberty of worship into broader social phe­ nomena. In part, a flexible notion of “religious exercise” has driven this expansion, accompanied by an appreciation of the fact that (despite Locke’s clear analytical distinction between “church” and “commonwealth”) reli­ gious commitments rarely confine themselves neatly to the realm of inner belief and personal salvation. For example, William Penn’s 1670 Great Case of Liberty of Conscience linked worship, press, speech, and assembly among a cluster of concepts necessary for conscience’s free exercise, since religious exercise involved preaching, offering testimonies, proselytization, and gath­ ering with fellow believers.10 But as a member of the Society of Friends, a radical sect that also refused swearing oaths and bearing arms on grounds of conscience, Penn held a more expansive understanding of the subtler ways that persecution could operate than many of his more orthodox Protestant contemporaries. For such groups, to be concerned about persecution and tol­ eration meant attending not only to large-scale and graphic punishments like whipping, imprisonment, fining, and seizure of goods, but also to the subtler ways in which authorities could interfere with religious exercise and exclude conscientious believers from public life. Conceptually, toleration can seem counterintuitive at first glance, since it involves a complex mixture of rejection and acceptance. Thus, it combines rejection or disapproval (of particular individuals or groups) with accept­ ance and permission (i.e., refraining from punishment or persecution of those individuals or groups). Critics of toleration have long point out that it carries with it the whiff of inherent judgment and negativity, the notion of enduring the presence of someone or something one finds wrong, distasteful, immoral, or even evil. For example, Rainer Forst has defined toleration as the “con­ ditional acceptance of or non-interference with beliefs, actions or practices that one considers to be wrong but still ‘tolerable,’ such that they should

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not be prohibited or constrained,” illustrating the competing impulses and judgments—wrong, tolerable, prohibition, constraint—inherent in the con­ cept and its associated practices.11 Forst’s monumental Toleration in Conflict synthesizes a great deal of scholarship on the term’s philosophical, political, and historical dimensions. As Forst points out, building on the earlier work of Preston King, toleration involves three main components: (1) an objec­ tion component, which refers to disapproval or negative judgments directed at beliefs or practices considered wrong, bad, mistaken, or harmful; (2) an acceptance component, which provides countervailing reasons for permitting those objected practices or beliefs, despite continuing unpopularity or con­ demnation; and (3) a rejection component, which refers to instances where the acceptance component no longer suffices to overcome objections and a practice or belief is deemed, literally, intolerable.12 (This “rejection compo­ nent” has gone by several different names over the years—the “paradox of tolerance”; the “boundaries of justifiable tolerance”; and the problem of “the intolerable.”13) Further complicating the analysis of toleration is the ubiquitous pres­ ence of a close cognate term—tolerance—with its own conceptual history and range of meanings. The relationship between these two terms, tolerance and toleration, remains unclear at best; and a widespread assumption that no meaningful distinction can be made between the two has, to my mind, needlessly obfuscated discussion of toleration for some time. Although many scholars use “tolerance” to refer to an individual disposition or character trait, such a definitional distinction between the two terms is hardly univer­ sally accepted, and many authors use the terms interchangeably, frustrating efforts at conceptual clarity and constructive analysis of toleration’s political legacy. An entire research tradition in political science locates “political tol­ erance” in the self-reported willingness to support civil rights for members of unpopular or marginalized groups.14 Elsewhere, I have argued that we may avoid some long-standing conceptual confusions by using “tolerance/intoler­ ance” to refer to attitudes, and “toleration/antitoleration” to refer to institu­ tional or behavioral phenomena; in other words, employing “tolerance” to describe personal or ethical virtues and “toleration” for political and institu­ tional practices.15 Needless to say, the conceptual confusion continues, with “tolerance” and “toleration” routinely conflated by both their supporters and their detractors in ways that complicates our capacity to discuss each one on its own terms.16 Even as they often acknowledge the importance of distinguishing between the two terms, few authors do so with much consist­ ency; and worse yet, sometimes even those who endorse a clear definitional distinction decline to use it.17 Regardless of consistency of usage, some argue that any practice of tol­ eration must necessarily be undergirded by, or flow out of, a disposition or “virtue” of tolerance. This assumption, too, has proven controversial: “we should be careful about making the assumption that what underlies a prac­ tice or an attitude of toleration must be a personal virtue,” wrote Williams,

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whereas a “practice of toleration means only that one group as a matter of fact puts up with the existence of another, differing group.”18 Many theorists disdain the notion of toleration as a “mere” modus vivendi and insist that it requires a robust and substantive philosophical justification.19 Historically speaking, however, many advances in toleration began as pragmatic, instru­ mental, modus vivendi–type arrangements, and removing such arrangements from our purview seems unhelpful.20 Michael Walzer illustrates a range of possible routes to toleration—resignation, indifference, moral stoicism, open­ ness to others, the postmodern celebration of difference—and argues that “it is a feature of any successful regime of toleration that it does not depend on a particular form of this virtue.”21 In a similar sense, Bernard Williams argues that the practice of toleration need not require individuals to exhibit a more substantive “virtue” of toleration. When attempting to articulate the reasons why any given states adopt (or don’t) tolerationist policies, we should keep in mind the complex possible universe of reasons: from the principled to the pragmatic, and everything in between. 2 Negative liberty and beyond: toleration as expansive and protean As mentioned above, many scholars have portrayed toleration as a strictly “negative” liberty, characterized by and large as merely the absence of con­ straint or an end to over-persecution. Toleration has generally been charac­ terized as distinctly minimalist “grim and limited” when compared to terms like freedom or liberty; or a notion that merely involves “putting up with that which you oppose,” rather than interrogating the nature of that disap­ proval.22 As such, toleration lies in “an uncertain zone between . . . respect and recognition, on the one side . . . and persecution and oppression, on the other,” and it “sustains a status of outsiderness” for the tolerated.23 Even those sympathetic to toleration’s importance, like Michael Walzer, admit that although toleration brings about a cessation of violence, it “is not a for­ mula for social harmony.”24 Thus, toleration has been attacked conceptually and politically as unduly minimal, compared to more robust and affirmative terms like respect, recognition, and equality; as a depoliticizing discourse that ignores the presence of vast power differentials between social groups as well as socioeconomic inequalities. If toleration offers a degree of inclusion to those facing discrimination, or outright persecution, from powerful social or political agents, it must be said that it is only a degree. These disclaimers notwithstanding, toleration as a theoretical and prac­ tical concern is hardly the exclusive preserve of early modern thinkers: it continues to animate philosophical and political argument, speaking to con­ temporary issues of constitutional government, civil disobedience, and the freedoms of speech, assembly, and press. Since the early modern emergence of toleration in the religious sphere, the ideal of toleration has appealed to many subsequent thinkers and actors, insofar as it embodies the idea of freely made choices that flow from individuals’ deepest commitments. Furthermore,

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early modern achievements were never static ones; tolerationist thinkers built on an expansive notion of conscience and its prerogatives, of liberty of con­ science as encompassing not only freedom of individual belief, but also of corporate religious exercise; and a broad resistance to civil liabilities for reli­ gious nonconformity. In England, the Toleration Act represented the end of a persecutory era, but also the opening salvo in a protracted struggle that ultimately involved measures like the Affirmation Act (1695), Sacramental Test Act (1828), Catholic Relief Act (1829), and Jews Relief Act (1858). More broadly, the tolerationist tradition has supported a number of prac­ tices that grow out of conscientious belief and commitment. For example, given the importance of acting in accord with one’s beliefs and values, espe­ cially in the realm of religion, liberty of conscience implies liberty of speech and assembly. In speech, this extension of conscience originally focused on the right of all Christian believers to preach the word of God without harass­ ment, while those advocating freedom of assembly claimed the rights of likeminded believers to gather and pursue their own salvation in the way they best perceived it. William Penn’s Peoples Ancient and Just Liberties Asserted brings together these two arguments: Penn was arrested for unlicensed preaching and published a (purported) transcript of his trial as a defense of traditional English liberties.25 In this regard, Rawls echoes early modern tolerationists when he claims that “freedom of association is required to give effect to liberty of conscience; for unless we are at liberty to associate with other like-minded citizens, the exercise of liberty of conscience is denied.”26 Early modern thinkers also connected liberty of conscience with liberty of the press, since authorities routinely directed censorship against religious dis­ sidents who were seen as threatening the established order by undermining the established church. In Milton’s famous polemic Areopagitica, the theory that “truth needs no sword” serves to bolster claims for a free press as well as the liberty of religious proselytization more generally.27 More broadly, tolerationists have historically included principled dissent or disobedience from specific laws—whether this involved a refusal to attend the established church (which traditionally brought fines or jail sentences) or the refusal to perform certain civic actions that violated the dictates of one’s conscience— under the rubric of liberty of conscience. A broad range of contemporary social and political issues, on the other hand—gay rights, cultural and ethnic pluralism, gender and race relations— elevate issues of identity and identity politics to the fore. Such issues of race, gender, and sexuality do not involve the assertion of conscientious belief that political regimes are violating, as did the traditional liberal movements for religious toleration, a free press, and voluntary assembly; and I have argued elsewhere that we ought not assume that the tolerationist paradigm easily generalizes to such cases. The tolerationist paradigm “works” particularly well, I would argue, for a particular set of issues circling around conscientious belief and practice in a diverse polity. It articulates the case for a minimal

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baseline of legal protection, from which broader contestation and debate can proceed.28 Nonetheless, contemporary thinkers have offered a number of important and creative tolerationist approaches to a wide array of conten­ tious political disputes, including political deliberation, headscarves, female genital mutilation, the restriction of pornography, Holocaust denial, employ­ ment discrimination, French laïcité and secularism, artistic expression, public education, and even issues related to parenting.29 In the American case, the First Amendment protects the cluster of speech, press, religion, assembly, and petitioning as components of a multidimensional understanding of conscien­ tious living. David A.J. Richards has tied the tolerationist paradigm to the argument for gay rights. The argument from religious toleration, Richards has argued, represents the most compelling model for the case for gay rights. . . . In American law, the argument for gay rights arises against a shared background of cumulative historical experience of successful struggles for human rights in various domains—religious toleration, racial inequality, and, most recently, gender equality.30 I stated above that at its root, in its early modern formulation, toleration appeared as a relatively “negative” liberty: the goal of the movement for toleration was, at its root, to end persecution. Tolerationists sought to ensure that individuals would not be punished for exercising their conscientious beliefs. In this sense, toleration is at root a “negative liberty,” although the term has evolved to include positive elements undreamt of by earlier genera­ tions. This claim about toleration going no farther than freedom from pun­ ishment, of course, does not preclude protracted political arguments about what constitutes such freedom from punishment and negative liberty in the context of late modern welfare states, and we should not expect that our definitions will match those current during the seventeenth century. That said, negative or minimal freedoms can put great demands on regimes, depending on the specific issues at stake or the concrete historical contexts in which they appear. The permission of unpopular religious or moral practices, or the right to assemble without harassment, is no mean feat, and can place important responsibilities on the shoulders of tolerationist governments. Without viewing toleration’s minimal guarantees as sufficient in themselves, we can view them as providing a kind of benchmark or a minimal condi­ tion from which further discussions of fuller liberty must begin. And even a minimal, negative liberty (especially in situations of conflict and contention) will require positive governmental action to make it real. There is no abstract thing as toleration, after all, but only particular groups in specific historical contexts, attempting to work out their relationships with other groups using the conceptual and political resources available to them. Hence toleration is always relational in nature,31 and given the widely varying institutional or

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political practices that it has manifested in different places, may look rather different in different contexts. As we have seen, proponents of liberty of conscience historically sought to a steadily expanding sphere in which religious concerns were removed as bases for punishment, persecution, or denial of public benefits. The concrete details of that expansion, however, represent a series of local achievements rather than the unfolding of an inevitable historical principle. In the difficult historical emergence of toleration, in whichever domain we are focusing on, then, what we find is not the progressive flowering of a preexisting principle, but rather painful compromises, hard-headed political negotiations, and a search for political and legal measures to ensure equal citizenship for mem­ bers of a diverse and often conflictual society. Toleration does not offer a panacea for all social conflict, to be sure. Early modern tolerationists and the modus vivendi politics to which they gave rise did not set as their goal the eradication of all social prejudice. Tolerationists saw religious liberty as providing fellow citizens with a way to live together, and that prospect of living together ended one process and began another. What tolerationists sought, gradually and step-by-step, was to carve out basic protections for religious dissenters, and to seek a position from which to reflect more broadly about the requirements of a cohesive and ordered society. A firm commitment to equal protection of law, equal opportunity, and a structure of basic civil rights might indeed seem minimal against the background of calls for the celebration of difference. But, as Judith Shklar has put it, “The very refusal to use public coercion to impose creedal uniformity and uniform standards of behavior demands an enormous degree of self-control. .  .  . Far from being an immoral free-for-all, liberalism is, in fact, extremely difficult and constraining.”32 If it is the case that toleration is, ultimately, necessary but not sufficient for equal respect, there continue to be large areas of the globe where the basic protection of fundamental rights remain insecure; and the precarious nature of minority populations of various sorts, even in advanced democracies, suggests that the tolerationist legacy remains relevant. Notes 1 Melissa S. Williams and Jeremy Waldron, “Introduction,” in Toleration and Its Limits, ed. Williams and Waldron (New York and London: NYU Press, 2008), 1; Evan Haefeli, “Toleration,” Religion Compass 4 (2010): 254; Ira Katznel­ son, “A  Form of Liberty and Indulgence: Toleration as a Layered Institution,” in Boundaries of Toleration, ed. Alfred Stepan and Charles Taylor (New York: Columbia University Press, 2014), 38. 2 Anson Phelps Stokes, Church and State in the United States (New York: Harper and Brothers, 1950), 21. 3 George Washington, Letter to the Hebrew Congregation at Newport, August 18, 1790, https://founders.archives.gov/documents/Washington/05-06-02-0135 4 1 William and Mary c. 18. It is worth mentioning, at the least, the fact that this renowned “Toleration Act” never once used the word “toleration,” promising

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instead to “exempt” certain Protestants from suffering the penalty of laws per­ taining to attendance at the established Church of England. 5 Paine, Rights of Man, ed. Eric Foner (New York: Penguin, 1985), 85. 6 Wolff, “Beyond Tolerance,” in A Critique of Pure Tolerance, ed. Wolff, Moore, and Marcuse (Boston, MA: Beacon, 1969), 4–5. 7 Marcuse, “Repressive Tolerance,” in A Critique of Pure Tolerance, 81, 100–101, 109. 8 Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire (Prince­ ton, NJ: Princeton University Press, 2008), 2, 7. I address the tolerance/toleration terminological issue below. 9 Conscience and Community: Revisiting Toleration and Religious Dissent in Early Modern England and America (University Park, PA: Penn State University Press, 2001); Liberty, Conscience, and Toleration: The Political Thought of William Penn (New York: Oxford University Press, 2016). More generally, see Perez Zagorin, How the Idea of Religious Toleration Came to the West (Princeton, NJ: Princeton University Press, 2003). 10 Penn, The Great Case of Liberty of Conscience (London, 1670); reprinted in Wil­ liam Penn: Political Writings, ed. Andrew R. Murphy (Cambridge: Cambridge University Press, 2021). 11 Forst, “Toleration,” in Stanford Encyclopedia of Philosophy, Fall 2017 ed., ed. Edward N. Zalta, https://plato.stanford.edu/archives/fall2017/entries/toleration/ 12 Forst, Toleration in Conflict: Past and Present, trans. Ciaran Cronin (Cambridge: Cambridge University Press, 2013), ch. 1. Forst here adopts the terminology offered earlier by Preston King, Toleration (London: Frank Cass, 1998), 44–54. 13 These three, respectively, Karl Popper, The Open Society and Its Enemies (Prince­ ton, NJ: Princeton University Press, 1994), 581 n. 4; Alon Harel, “The Boundaries of Justifiable Tolerance: A  Liberal Perspective,” in Toleration: An Elusive Vir­ tue, ed. David Heyd (Princeton, NJ: Princeton University Press, 1996); and D. D. Raphael, “The Intolerable,” in Justifying Toleration: Conceptual and Historical Perspectives, ed. Susan Mendus (Cambridge: Cambridge University Press, 1998). 14 See, for example, John L. Sullivan, James Piereson, and George E. Marcus, Politi­ cal Tolerance and American Democracy (Chicago, IL: University of Chicago Press, 1982). 15 “Tolerance, Toleration, and the Liberal Tradition,” Polity 29 (1997): 593–623. Without rehearsing the details of that argument here, I shall merely suggest that no set of attitudes is necessarily related to tolerationist outcomes in politics. 16 For example, Brown notes the “apparent conversion of tolerance from a par­ ticular form of protection against violent persecution to a late-twentieth century vision of the good society” (Regulating Aversion, 5). But tolerance was not a form of protection against persecution, toleration was. 17 “Although we wish to keep to the definitional distinction, we are not strictly adhering to the use of tolerance and toleration with these exclusive meanings” (Catriona McKinnon and Dario Castiglione, The Culture of Toleration in Diverse Societies: Reasonable Tolerance [Manchester: Manchester University Press, 2003], 8n3). Chapter 1 of King’s Toleration, entitled “Toleration: Philosophical Perspectives,” opens with the author’s claims that he is “concerned with toler­ ance” (Toleration, 21). 18 Williams, “Toleration: An Impossible Virtue?” in Toleration: An Elusive Virtue, 19. 19 Forst, Toleration in Conflict, 458–459; Rawls, Political Liberalism (New York: Columbia University Press, 1993), 146–148. 20 See, for example, Horton, “Toleration and Modus Vivendi”; Murphy, Conscience and Community, ch. 8. 21 Walzer, On Toleration (New Haven, CT: Yale University Press, 1997), 10.

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22 Bernard Crick, “Toleration and Tolerance in Theory and Practice,” Government and Opposition 6 (1971): 160; King, Toleration, 3. 23 Katznelson, “A Form of Liberty and Indulgence,” 40; Brown, Regulating Aver­ sion, 28, 47. 24 Walzer, On Toleration, 98. 25 Penn, The Peoples Ancient and Just Liberties Asserted (London, 1670); reprinted in William Penn: Political Writings, ed. Murphy. 26 Rawls, Political Liberalism, 313. 27 Milton, Areopagitica (London, 1644); reprinted in Areopagitica and Other Politi­ cal Writings of John Milton, ed. John Alvis (Indianapolis: Liberty Fund, 1999). 28 This is the argument of Conscience and Community, ch. 8. 29 See Catriona McKinnon, Toleration: A Critical Introduction (London and New York: Routledge, 2006), Andrew Jason Cohen, Toleration (Cambridge: Pol­ ity, 2014), and the essays in The Culture of Toleration in Diverse Societies, ed. McKinnon and Castiglione, for the relevance of toleration to these issues. 30 Richards, Identity and the Case for Gay Rights (Chicago, IL: University of Chicago Press, 1999), 1, 195. In Conscience and Community, ch. 8, I  offer a critique of Richards’s (in my view) overly expansive claims about toleration and its capacity to ground the sort of gay rights agenda that Richards seeks, his is by far the most powerful framing of toleration and American progressivism on offer, in my view. 31 Haefeli, “Toleration,” 111. 32 Shklar, Ordinary Vices (Cambridge, MA: Harvard University Press, 1984), 6–7.

References Brown, Wendy. Regulating Aversion: Tolerance in the Age of Identity and Empire. Princeton, NJ: Princeton University Press, 2008. Cohen, Andrew Jason. Toleration. Cambridge: Polity, 2014. Crick, Bernard. “Toleration and Tolerance in Theory and Practice.” Government and Opposition 6 (1971): 144–171. The Culture of Toleration in Diverse Societies: Reasonable Tolerance. Edited by Catriona McKinnon and Dario Castiglione. Manchester, UK: Manchester Univer­ sity Press, 2003. Forst, Rainer. Toleration in Conflict: Past and Present. Translated by Ciaran Cronin. Cambridge: Cambridge University Press, 2013. ———. “Toleration.” In Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta. Fall 2017 Edition. Available online at https://plato.stanford.edu/archives/fall2017/ entries/toleration/. Haefeli, Evan. “Toleration.” Religion Compass 4 (2010): 253–262. Harel, Alon. “The Boundaries of Justifiable Tolerance: A Liberal Perspective.” In Tol­ eration: An Elusive Virtue, ed. David Heyd. Princeton, NJ: Princeton University Press, 1996. Horton, John. “Toleration and Modus Vivendi.” Critical Review of International Social and Political Philosophy 24 (2021): 45–63. Katznelson, Ira. “A Form of Liberty and Indulgence: Toleration as a Layered Institu­ tion.” In Boundaries of Toleration. Edited by Alfred Stepan and Charles Taylor. New York: Columbia University Press, 2014. King, Preston. Toleration. London: Frank Cass, 1998. McKinnon, Catriona. Toleration: A  Critical Introduction. London and New York: Routledge, 2006.

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Milton, John. Areopagitica and Other Political Writings of John Milton. Edited by John Alvis. Indianapolis, IN: Liberty Fund, 1999. Murphy, Andrew R. “Tolerance, Toleration, and the Liberal Tradition.” Polity 29 (1997): 593–623. ———. Conscience and Community: Revisiting Toleration and Religious Dissent in Early Modern England and America. University Park: Penn State University Press, 2001. ———. Liberty, Conscience, and Toleration: The Political Thought of William Penn. New York: Oxford University Press, 2016. Paine, Thomas. Rights of Man. Edited by Eric Foner. New York: Penguin, 1985. Penn, William. William Penn: Political Writings. Edited by Andrew R. Murphy. Cam­ bridge: Cambridge University Press, 2021. Popper, Karl. The Open Society and Its Enemies. Reprint ed. Princeton, NJ: Princeton University Press, 1994. Raphael, D. D. “The Intolerable.” In Justifying Toleration: Conceptual and Historical Perspectives, ed. Susan Mendus. Cambridge: Cambridge University Press, 1998. Rawls, John. Political Liberalism. New York: Columbia University Press, 1993. Richards, David A. J. Identity and the Case for Gay Rights. Chicago, IL: University of Chicago Press, 1999. Shklar, Judith N. Ordinary Vices. Cambridge, MA: Harvard University Press, 1984. Stokes, Anson Phelps. Church and State in the United States. New York: Harper and Brothers, 1950. Sullivan, John L., James Piereson, and George E. Marcus. Political Tolerance and American Democracy. Chicago, IL: University of Chicago Press, 1982. Walzer, Michael. On Toleration. New Haven, CT: Yale University Press, 1997. Washington, George. “Letter to the Hebrew Congregation at Newport, August  18, 1790.” Available online at https://founders.archives.gov/documents/ Washington/05-06-02-0135 Williams, Bernard. “Toleration: An Impossible Virtue?.” In Toleration: An Elusive Virtue, ed. David Heyd. Princeton, NJ: Princeton University Press, 1996. Williams, Melissa S. and Jeremy Waldron. ed. Toleration and Its Limits. New York and London: NYU Press, 2008. Wolff, Robert Paul, Barrington Moore, Jr., and Herbert Marcuse. A Critique of Pure Tolerance. Boston, MA: Beacon, 1969. Zagorin, Perez. How the Idea of Religious Toleration Came to the West. Princeton, NJ: Princeton University Press, 2003.

12 Human rights in the natural law tradition Jonathan Crowe

Introduction This chapter explores the distinctive features of natural law approaches to explaining and defending human rights. The natural law outlook, as I have defined it elsewhere,1 has two components: first, there are certain forms of life that are intrinsically good for humans by virtue of their nature; and, second, these forms of life play a fundamental role in explaining the nature and pur­ pose of social, political, and legal institutions. The notion of intrinsic human goods is therefore fundamental to natural law thinking. These goods provide the foundation for central ideas in natural law political theory, including the common good and natural rights. Human rights are not a basic concept in the natural law outlook. Rather, they are subsidiary to the more fundamental notion of intrinsic human goods. This emphasis distinguishes the natural law tradition from the natural rights tradition with which it is widely associated. Nonetheless, the natural law outlook offers a straightforward and compelling way of deriving human rights from intrinsic goods. This derivation proceeds by showing how goods generate reasons for action, which in turn produce duties toward others. These duties then correlate to rights. The chapter elaborates and defends a specific version of the natural law argument for human rights outlined above. It then explores some advantages of the natural law approach to human rights, showing how it defuses criti­ cisms of rights discourse advanced from both within and outside the natural law tradition. The priority of goods over duties, and duties over rights, in the natural law outlook offers an antidote to the individualistic and positional tendencies of rights claims in political arenas. It also helps to ensure that rights claims do not obscure or override the primary role of the common good in shaping political obligations. 1 Intrinsic human goods The natural law tradition is highly diverse, but its defining feature, as sug­ gested above, is an emphasis on intrinsic human goods. The use of the term DOI: 10.4324/9781032702766-16

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“natural law” to describe the tradition has sometimes tended to disguise this emphasis. The word “law” may appear to suggest a set of rule-like standards promulgated by some authority.2 This encourages a perception of natural law as a set of commands, analogous to the rules of positive law, imposed on humans by God. The view of natural law outlined above effectively conceives it as a spe­ cies of divine command theory. However, this is misleading; within theis­ tic normative ethics, natural law theories and divine command theories are generally presented as competing options.3 Divine command theories view the content of moral standards as dictated by the commands of God. These commands could, in principle, have any content; divine command theories therefore assume theological voluntarism. Natural law theories, by contrast, regard morality as stemming not directly from God’s commands, but from the natural properties of humans. The word “law” in the phrase “natural law,” in other words, needs to be read in light of the qualifying adjective “natural.” The better analogy, in this respect, is not with positive laws made by humans, but rather with the laws of the natural sciences, such as physics and biology.4 Nature is governed by these natural laws in the sense that it exhibits certain predictable regularities. Natural law, similarly, captures stable patterns in the normative objectives of human action. Natural law theories hold that humans are characteristically inclined to pursue and value certain values for their own sake. These values are not arbi­ trary; they reflect the intrinsic ability of humans to identify and pursue goods that make their lives go well. Theistic conceptions of natural law hold that these goods are part of God’s wise and beneficent design. They are norma­ tively weighty, however, not because they have the character of divine com­ mands, but rather because they hold the status of goods and are therefore worthy of being pursued. Natural law authors have offered various accounts of intrinsic human goods; my own preferred list includes life, health, pleasure, friendship, play, appreciation, understanding, meaning, and reasonableness.5 We have reason to participate in these goods, because they make our lives go well. We also plausibly have reason to assist others to pursue these goods, because this is a fitting response to their being universally and not merely subjectively valu­ able.6 Finally, we have reason not to directly harm any instantiation of these goods in our lives or those of others, because their intrinsic value makes them worthy of preservation. The reasons we have to participate in the intrinsic goods are not abso­ lute.7 Indeed, it is commonplace for people to face choices between different possible actions, all of which involve pursuit of intrinsic values. We cannot do everything that is worthwhile, so we must choose between the available options. Nonetheless, not all possible actions are permissible; we should not choose an option that fails to pursue any good or that harms the pursuit of a good without adequate reason.8

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Some natural law authors claim that we should never deliberately harm the pursuit of any intrinsic good.9 I  have argued elsewhere that this is implausible; there are many common scenarios where it seems permissible to deliberately harm the pursuit of a good for some other compelling reason.10 A mother who tells her daughter to stop playing online games and do her homework is deliberately impeding the good of play, but she is justified in doing so. Those authors who contend we should never deliberately harm an intrin­ sic good stress the distinction between intended and merely foreseen harms.11 They might say the mother’s intention is not to set back the good of play, but to advance the good of knowledge; the harm to opportunities for play is a mere foreseen side effect. However, this kind of reasoning leads to unappeal­ ing hair-splitting about intentions.12 Ultimately, I prefer the view presented above: the reasons provided by the intrinsic goods are typically weighty, but not absolute. The range of permissible actions is further constrained by what natural law authors call the common good.13 The common good is the situation where all members of a community can enjoy flourishing lives by pursuing the intrinsic values in a range of reasonable ways. This situation benefits eve­ ryone; hence the name “common good.” The reasons we have to assist others to pursue the goods means we have weighty reason to do our share to bring the common good about.14 As Thomas Aquinas famously pointed out, many aspects of the common good require specification by legal and social norms.15 For example, practical reason requires us to protect physical safety, but it does not tell us whether the speed limit on a road should be 70 as opposed to 80 km per hour. The intrinsic goods give us reason to value and pursue certain ends, but social context plays a crucial role in determining exactly what those reasons require in daily life. Natural law theories rely on the reason-giving nature of the goods to get morality up and running. The goods present us with an array of reasons that properly guide our actions; moral reasoning involves identifying these rea­ sons, weighing them where necessary and acting appropriately. The natural law outlook, then, maintains that the rightness or wrongness of any given action depends upon its holding an appropriate relation to intrinsic human goods. One of the putative merits of the natural law conception of moral reason­ ing is that it offers an alternative to moral theories that accord a fundamental status to deontic concepts like rules, rights, or duties. Natural law theo­ ries insist that it makes little sense to talk about these conceptions without embedding them in discussions of the good. Ethics, politics, and law, on this view, should be guided primarily by the aim of creating a community where every member can flourish, rather than a myopic focus on acontextual rules or entitlements.

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2 Deriving natural rights The emphasis natural law theories place on intrinsic goods leaves, at best, a subsidiary place for the notion of rights. Rights are not primary features of the natural law normative universe, but must rather be derived from intrinsic goods. This represents the main point of difference between the natural law tradition and the natural rights tradition with which it is readily confused.16 Natural rights theories, unlike their natural law counterparts, view rights as intrinsic natural attributes of humans, rather than being developed from goods. There is, however, a straightforward and well-worn path from intrinsic goods to natural rights. Rights are normatively protected interests; if a per­ son has a right to something, they have both an interest in that thing and a legitimate expectation that their interest be realized.17 A person has an inter­ est in something if it makes their life better in some respect. Natural law theories, as we saw previously, maintain there are certain intrinsic goods that make human lives go well. All humans therefore have an interest in participating in intrinsic goods. Furthermore, everyone has reason to promote and avoid harming participa­ tion in intrinsic goods in her own life and the lives of others.18 These reasons can be expressed in the language of duties: everyone has a weighty but nonabsolute duty to promote and avoid harming participation in intrinsic goods. A person’s interest in participating in intrinsic goods is normatively protected to this extent. I explained earlier why I believe our reasons to promote and avoid harm­ ing the basic goods are generally not absolute. They therefore typically gener­ ate non-absolute duties. Nonetheless, there are some specific kinds of actions that are plausibly never permissible, due to the profound harm they cause to the pursuit of intrinsic values. For instance, it is plausibly never permissible to enslave someone, because that is fundamentally inconsistent with their ability to live a flourishing life. These kinds of prohibitions generate absolute duties. The duties expressed in the previous paragraphs logically correlate to rights. If I have a duty to promote and avoid harming your participation in intrinsic goods, then you have a right that I do so. The logical correlativity of duties and rights was famously explored by W.N. Hohfeld.19 According to Hohfeldian analysis, A’s right that B perform action X is nothing more or less than B’s duty in respect of A to perform X. Any other-regarding duty logically entails a corresponding right. I have argued elsewhere that, based on the argument presented above, there are two fundamental human rights.20 The first, which I term the right to support, is the right that others promote a person’s pursuit of intrinsic goods. The second, the right not to be harmed, is the right that others not harm a person’s pursuit of the goods. All humans have these rights simply by virtue

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of their humanity. The rights, as discussed previously, are generally not abso­ lute; they are, in effect, a right to a reasonable level of support and a right not to be unreasonably harmed. There might be some varieties of harm that can never be reasonable, as with the example of slavery considered previously. These kinds of harm plau­ sibly generate absolute duties; these will, in turn, correlate to absolute rights. However, most rights claims advanced in legal and political discourse lack this decisive character. Rather, they depend on the balance of reasons. Indeed, even the relatively few examples of absolute rights depend on the balance of reasons; they only have this character because the underlying reasons cannot be defeated. The rights described above are natural rights for the same reason that natural law is properly called “natural.” The intrinsic goods identified by natural law theories represent what is good for humans given their common nature. Furthermore, they are identified through the natural propensity of humans to value and pursue those things that make their lives go well. It is by virtue of these same natural characteristics that humans bear the rights identified above. The content of the natural rights mentioned above is further determined by the shape the common good takes in a particular community. Both the right to support and the right not to be harmed remain vague; the precise requirements they place on us are further specified by legal and social norms. These norms provide a mechanism for dividing up responsibilities and pro­ viding members with the support they require to flourish. The responsibilities imposed by the common good, like other natural duties, give rise to correla­ tive rights. Natural rights can, then, be derived from intrinsic goods; this means they can be rendered consistent with the natural law outlook. However, not all proponents of natural law theory agree that natural rights have a place within the tradition.21 The main objection to natural rights advanced within natural law circles is not so much that the derivation outlined above is logi­ cally flawed, but rather that rights discourse sits poorly within the natural law outlook. An influential version of this worry is expressed by Alasdair MacIntyre. MacIntyre points out that rights are “characteristically claimed against some­ one else.”22 This tends to foster an individualistic and positional moral cli­ mate. The natural law outlook centers moral discourse around shared human values; this promises a collaborative outlook focusing on the common good. However, MacIntyre argues that rights claims undermine this benefit of natu­ ral law thinking. Rights discourse encourages people to express their moral concerns in the form of claims to entitlements. These claims are intended to control other people by imposing duties upon them and to enlist institutional support for enforcing those duties. They “offer a rhetoric which serves to conceal behind the masks of morality what are in fact the preferences of arbitrary will and

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desire.”23 The deployment of rights claims further encourages an adversarial mindset where the fulfilment of one person’s rights must come at the expense of someone else.24 Politics becomes a zero-sum game where every move results in winners and losers. We saw previously that a putative merit of natural law theories is their focus on creating a community structure where everyone can flourish. This vision of a genuinely common good is one everyone can, in principle, endorse. However, MacIntyre argues that this focus is fatally undercut by introducing the language of rights claims into moral discussions. This pragmatic consid­ eration suggests that the move from intrinsic goods to natural rights should be blocked. 3 Reframing rights discourse MacIntyre’s objections to rights discourse deserve serious consideration. Ulti­ mately, however, they are not decisive. I  want to suggest that embedding rights claims within a broader natural law framework is not only consistent with the natural law outlook, but also offers a way of reframing rights dis­ course to avoid some of the undesirable consequences MacIntyre highlights. It is helpful to revisit the structure of the natural law derivation of rights. Rights, as we saw, are not primary in the natural law outlook. They owe their existence to intrinsic goods. Furthermore, two intermediate steps are needed to derive rights from goods. First, goods produce reasons; second, reasons create duties; and, finally, duties correlate to rights. It is not only goods, but also reasons and duties, that are more integral than rights from a natural law perspective. MacIntyre’s concern relates to the propensity of rights to be cited as over­ riding individual entitlements. However, this conception of rights is alien to the natural law outlook. To begin with, from a natural law perspective, rights are not trumps. They are not absolute entitlements that override all (or even most) other considerations. Rather, the very existence of rights depends upon whether they are supported by the balance of reasons produced by intrinsic values. We can contrast the natural law conception of rights, in this respect, with the well-known theories of Robert Nozick and Ronald Dworkin. Nozick treats rights as side-constraints; if a person has a right, on this view, there are things nobody else can ever do to them without violating those rights.25 Dworkin, similarly, is known for characterizing rights as trumps; the defining feature of rights, on this conception, is their all-or-nothing character which generally allows them to override competing considerations of policy or interest.26 Rights, for Nozick and Dworkin, are overruling normative factors. How­ ever, natural rights, as conceptualized through the natural law outlook, do not have this feature. People only have rights, on this view, to the extent that intrinsic human values supply other people with reasons to treat them in

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particular ways. The reasons produced by intrinsic values may be overridden by other considerations; if they are, then they do not ultimately give rise to any rights. Furthermore, on the natural law view, rights do not attach to individuals outside a wider community context. This is so in three distinct senses. First, rights are preceded on the natural law view by duties. The reasons presented to me by the intrinsic goods give me duties to other people; rights are simply the correlative of these duties. It is only through recognizing myself and other people as the bearers of duties that I can recognize them as bearers of rights. Rights, then, arise in the natural law picture by virtue of a web of social relations that also includes responsibilities. It makes no sense, from this per­ spective, for a person to assert their rights without recognizing their duties to others. More broadly, rights claims depend upon the existence of a variety of other rights and duties against which they must be balanced. This picture is a far cry from the Nozickian or Dworkinian conceptions mentioned above. Second, natural rights from the natural law perspective are inseparable from the common good. We saw previously that some natural rights derive directly from the duties we owe to others. However, other rights derive from our duty to support the common good. These are not so much duties we owe to other individuals, as duties we owe to the community as a whole. Furthermore, individual rights must be viewed as components of the com­ munity context that produces the common good. A  person who insists on their individual entitlements without considering their impact on the com­ mon good misconceives the point of rights from a natural law standpoint. Rights exist to facilitate human flourishing and the common good is precisely the situation where everyone can flourish. It follows that rights find their most perfect fulfilment not as individual objects of respect, but when the common good is realized. Third, the content of rights claims is itself determined by the social con­ text. This is partly because it reflects the balance of reasons and duties, as discussed previously. However, it is also because the content of these reasons and duties is at least partly determined by social practices. Social practices arguably shape the intrinsic goods themselves by giving practical shape to the ways in which humans seek to collectively realize their potential for flourish­ ing lives.27 Moreover, as we saw previously, the precise content of reasons and duties also owes a great deal to the way they are specified by local norms. Every­ one has a duty to do their share for the common good, but what counts as each person’s share requires additional specification. The content of natural duties—and, therefore, rights—cannot be determined without examining this social context and asking, in effect, what the common good of the commu­ nity requires. There is undoubtedly a tendency in contemporary law and politics to deploy rights claims in an individualistic or adversarial fashion. However, the natural law conception of rights, far from lending succor to this deplorable

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tendency, provides a powerful counternarrative. It shows that rights are not trumps existing in a normative vacuum, but are inextricably bound to rea­ sons, duties, and the common good, while their content necessarily depends on their suitability to contribute to the wider goal of human fulfilment in community with others. 4 Limiting government power The Nozickian and Dworkinian conceptions of rights view them as impos­ ing stringent limitations on government power. The natural law tradition, by contrast, rejects the idea of rights as trumps, viewing them rather as the product of reasons, duties, and the common good. Does this limit the capac­ ity of rights to constrain governments and protect the autonomy of citizens? It does not. I suggested earlier that natural law generates two fundamental human rights: the right to support and the right not to be harmed. These two rights, when applied in political contexts, can be identified with positive and negative forms of freedom. Positive freedom, for these purposes, can be understood roughly as the ability to accomplish one’s aims or desires, whereas negative freedom is the absence of external constraints on one’s actions.28 The notion of positive freedom, as Isaiah Berlin famously noted,29 is open to abuse. It can be used as an excuse for people in positions of power to make judgments about which aims and desires are worth pursuing and which are not, characterizing their subjects as free only to the extent that they engage in approved actions, and ignoring other constraints on their liberty. However, the natural law conception of rights outlined previously supplies two safeguards against this danger. First, the right to support is defined by ref­ erence to pursuit of the intrinsic goods. These goods, in turn, are intended to capture the manifold dimensions of human flourishing. The right to support therefore translates into a general entitlement to the assistance people need to choose among and pursue the goods for themselves. It provides no warrant for arbitrarily favoring certain forms of good while denying access to others. Second, a compelling argument can be made that the right to support, thus conceived, requires a general context of negative freedom. Negative freedom, from a natural law perspective, is therefore not merely a right not to be harmed in one’s pursuit of intrinsic goods; it is also a right to a community environment that supports each person’s pursuit of intrinsic goods by remov­ ing arbitrary restrictions on their ability to explore and access the full range of goods for themselves. Human flourishing is facilitated by the presence of rich and stable social institutions for pursuit of intrinsic goods. These goods are best discovered and nurtured by allowing humans to explore their capacities in commu­ nity with each other. Furthermore, both the discovery and the enjoyment of intrinsic goods depends upon insulating people from arbitrary exercises of power which might replace the discovery process with the preferences or desires of a privileged few.

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The resulting picture of political discourse, as I have argued elsewhere,30 involves balancing strong prima facie claims to non-interference (what I described above as negative freedom) against a range of less pervasive, but potentially more weighty prima facie claims for positive assistance in achiev­ ing specific objectives (what I characterized above as positive freedom). This general picture is somewhat redolent of classical liberal approaches to politi­ cal theory. However, there is an important difference between the natural law approach and dominant versions of classical liberalism. Classical liberal accounts of politics have often focused on strong individual rights to nega­ tive freedom, denying or downplaying the relevance of positive liberty. This tends to result in what Charles Taylor calls an “atomist” vision of a politi­ cal community comprised of self-sufficient individuals who can flourish best when left alone.31 The natural law picture outlined above, by contrast, emphasizes that indi­ viduals can only flourish within the context of the common good. This entails not only that a particular kind of community is crucial for human fulfilment, but also that people have robust duties to contribute to the common good, insofar as nobody—not themselves, not others—can prosper fully without it. The natural law view of politics, then, is holistic, rather than atomistic. At the same time, however, it emphasizes the pluriform nature of human flourishing and the essential role of negative freedom in shaping healthy com­ munities. It opposes totalizing conceptions of value and offers no succor to authoritarian governments who seek to direct human flourishing only into approved channels. Conclusion MacIntyre and others have raised weighty concerns about the place of rights claims within the natural law outlook. However, I have argued that the most fitting response to these worries is not to insist that rights have no place in the natural law tradition, but rather to deploy the resources of natural law thought to reconceptualize rights discourse. This process begins by recogniz­ ing the structure of the natural law conception of rights, whereby rights do not arise from nowhere, but are subsidiary to goods, reasons, and duties. This picture entails that rights are not shields that can be deployed regard­ less of context. They are rather products of reasons and duties that are them­ selves at least partly socially determined. Furthermore, rights are not shields against the common good; they are rather constituted by the common good. They derive their value, not from their capacity to resist the demands of com­ mon interest, but from their ability to help advance those demands. This natural law project of rethinking rights discourse forms part of a wider reconceptualization of politics and law. Politics and law, according to the natural law outlook, are not merely domains of formal rules protecting individuals from each other. Instead, they entail deeper forms of discourse

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about what forms of life we should nourish in our societies and how they connect with our shared project of human flourishing. We must, in other words, ask what we are trying to accomplish as humans living together in community before identifying the practices or institutions that are best suited to advance that objective. The primary role of politics, on this conception, is to shape and promote the common good. The common good, as we have seen, molds our reasons for action and the duties we owe one another. These duties provide the foun­ dation for rights claims. Rights, then, are the culmination of this deliberative process, not its building blocks. We should be wary of rights claims advanced outside this wider normative setting, but we should embrace the capacity of rights, properly conceived, to inform community discourse with respect to the common good. Notes 1 Jonathan Crowe, Natural Law and the Nature of Law (Cambridge: Cambridge University Press, 2019), 2. See also Jonathan Crowe and Constance Youngwon Lee, “The Natural Law Outlook,” in Research Handbook on Natural Law The­ ory, ed. Jonathan Crowe and Constance Youngwon Lee (Cheltenham: Edward Elgar, 2019), 1. 2 Jeremy Waldron, for example, claims that “we should expect natural law to be law-like” in the sense that “it should be something like positive law.” See Jeremy Waldron, “What Is Natural Law Like?,” in Reason, Morality, and Law: The Phi­ losophy of John Finnis, ed. John Keown and Robert P. George (Oxford: Oxford University Press, 2013), 73. 3 Mark C. Murphy, God and Moral Law (New York: Oxford University Press, 2011), 100. 4 Crowe and Lee, “The Natural Law Outlook,” 1. 5 Crowe, Natural Law and the Nature of Law, ch. 2. 6 For an extended argument, see Crowe, Natural Law and the Nature of Law, 63–66. See also Jonathan Crowe, “Philosophical Challenges and Prospects for Natural Law Foundations of Human Rights,” in The Cambridge Handbook of Natural Law and Human Rights, ed. Tom Angier, Iain T. Benson and Mark D. Retter (Cambridge: Cambridge University Press, 2022), 494–495. 7 Crowe, Natural Law and the Nature of Law, 79–82.

8 See generally Crowe, Natural Law and the Nature of Law, ch, 3.

9 See, for example, John Finnis, Natural Law and Natural Rights, 2nd ed. (Oxford:

Oxford University Press, 2011), 118–125; John Finnis, Fundamentals of Ethics (Washington, DC: Georgetown University Press, 1983), 109–127. 10 Crowe, Natural Law and the Nature of Law, 4–5, 72–82. 11 Finnis, Natural Law and Natural Rights, 112–113. 12 Crowe, Natural Law and the Nature of Law, 79–82. 13 See generally Crowe, Natural Law and the Nature of Law, ch. 4. 14 Crowe, Natural Law and the Nature of Law, 91–93. 15 Thomas Aquinas, Summa Theologica, trans. and ed. Dominican Fathers (Notre Dame, IN: Ave Maria Press, 1948), I–II, q. 95, art. 2. 16 It is telling, in this respect, that Waldron’s argument that natural law must be “law-like” begins by discussing a quotation from John Locke, a central figure in the natural rights tradition. See Waldron, “What Is Natural Law Like?,” 73.

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17 Crowe, Natural Law and the Nature of Law, 99–100. 18 Crowe, Natural Law and the Nature of Law, 63–66. 19 W. N. Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 23 (1913): 16–59; W. N. Hohfeld, “Fundamen­ tal Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 26 (1917): 710–770. 20 Crowe, Natural Law and the Nature of Law, 100. 21 For a helpful overview, see Tracey Rowland, “The Case Against the Marriage of Natural Law and Natural Rights,” in The Cambridge Handbook of Natural Law and Human Rights, ed. Tom Angier, Iain T. Benson, and Mark D. Retter (Cam­ bridge: Cambridge University Press, 2022). 22 Alasdair MacIntyre, Three Rival Versions of Moral Enquiry (South Bend, IN: University of Notre Dame Press, 1994), 164. 23 Alasdair MacIntyre, After Virtue, 3rd ed. (South Bend, IN: University of Notre Dame Press, 2007), 71. 24 Alasdair MacIntyre, Dependent Rational Animals (Chicago, IL: Open Court, 2001), 114–115. 25 Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), ix. 26 Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 190–192. 27 Crowe, Natural Law and the Nature of Law, 36–39. See also Jonathan Crowe, “Intelligibility, Practical Reason and the Common Good,” in Research Hand­ book on Natural Law Theory, ed. Jonathan Crowe and Constance Youngwon Lee (Cheltenham: Edward Elgar, 2019). 28 Isaiah Berlin, “Two Concepts of Liberty,” in Liberty, ed. Henry Hardy (Oxford: Oxford University Press, 2002), 169, 178. For discussion, see Crowe, Natural Law and the Nature of Law, 107–111. 29 Berlin, “Two Concepts of Liberty,” 179–180. 30 Crowe, Natural Law and the Nature of Law, 111–115. 31 Charles Taylor, “Atomism,” in Philosophy and the Human Sciences: Philosophi­ cal Papers 2 (Cambridge: Cambridge University Press, 1985), 187–190.

References Berlin, Isaiah. “Two Concepts of Liberty”, in Liberty. Ed. Henry Hardy. Oxford: Oxford University Press, 2002. Crowe, Jonathan. “Intelligibility, Practical Reason and the Common Good”, in Research Handbook on Natural Law Theory. Eds. Jonathan Crowe and Constance Youngwon Lee. Cheltenham: Edward Elgar, 2019a. ———. Natural Law and the Nature of Law. Cambridge: Cambridge University Press, 2019b. ———. “Philosophical Challenges and Prospects for Natural Law Foundations of Human Rights”, in The Cambridge Handbook of Natural Law and Human Rights. Eds. Tom Angier, Iain T. Benson and Mark D. Retter. Cambridge: Cambridge Uni­ versity Press, 2022. ———, and Constance Youngwon Lee. “The Natural Law Outlook”, in Research Handbook on Natural Law Theory. Eds. Jonathan Crowe and Constance Youngwon Lee. Cheltenham: Edward Elgar, 2019. Dworkin, Ronald. Taking Rights Seriously. London: Duckworth, 1977. Finnis, John. Fundamentals of Ethics. Washington, DC: Georgetown University Press, 1983.

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———. Natural Law and Natural Rights, 2nd ed. Oxford: Oxford University Press, 2011. Hohfeld, W. N. “Some Fundamental Legal Conceptions as Applied in Judicial Rea­ soning”, Yale Law Journal 23 (1913): 16–59. ———. “Fundamental Legal Conceptions as Applied in Judicial Reasoning”, Yale Law Journal 26 (1917): 710–770. MacIntyre, Alasdair. Three Rival Versions of Moral Enquiry. South Bend, IN: Univer­ sity of Notre Dame Press, 1994. ———. Dependent Rational Animals. Chicago, IL: Open Court, 2001. ———. After Virtue, 3rd ed. South Bend, IN: University of Notre Dame Press, 2007. Murphy, Mark C. God and Moral Law. New York: Oxford University Press, 2011. Nozick, Robert. Anarchy, State and Utopia. New York: Basic Books, 1974. Rowland, Tracey. “The Case Against the Marriage of Natural Law and Natural Rights”, in The Cambridge Handbook of Natural Law and Human Rights. Eds. Tom Angier, Iain T. Benson and Mark D. Retter. Cambridge: Cambridge University Press, 2022. Taylor, Charles. “Atomism”, in Philosophy and the Human Sciences: Philosophical Papers 2. Cambridge: Cambridge University Press, 1985. Thomas Aquinas. Summa Theologica. Trans. And ed. Dominican Fathers. Notre Dame, IN: Ave Maria Press, 1948. Waldron, Jeremy. “What Is Natural Law Like?”, in Reason, Morality, and Law: The Philosophy of John Finnis. Ed. John Keown and Robert P. George. Oxford: Oxford University Press, 2013.

Part IV

Perfectionist traditions

Contributions in this part aim to explore various aspects of pluralism from within influential religious or philosophical traditions, and to apply insights from those traditions to issues in contemporary politics. The chapters aim to go beyond the usual geographical and historical boundaries within which clas­ sical liberalism is often discussed and challenged by perfectionist intuitions.

DOI: 10.4324/9781032702766-17

13 Well-being policy Consensus hallmarks and cultural variation Daniel M. Haybron

Introduction Governments and other organizations should at least sometimes take account of people’s well-being or quality of life when making decisions, other things equal preferring policies that benefit people over those that make them worse off. Moreover, sometimes other things are equal enough: well-being should play a role in policymaking. In other words, well-being policy (WBP) is a legitimate and necessary endeavor. While WBP can include policymaking by a wide range of entities, including schools, churches, businesses, and NGO’s, I will focus here on the government case, or public policy for well-being. The basic idea of well-being policy should be wholly uncontroversial, set­ ting aside skeptics who doubt the legitimacy of just about everything govern­ ments do. And indeed it is, whether people realize it or not: public health policy, to take one example, just is a form of WBP; sanitation programs would be pointless if they did not benefit anyone. For that matter, main­ stream welfare economics is reasonably understood as premised wholly on the idea that well-being, understood as the satisfaction of preferences, is the ultimate aim of economic policy: governments should curb inflation and unemployment because doing so improves human welfare. It differs from WBP, as usually conceived, in focusing directly on resources like GDP, with outcomes like well-being not generally receiving direct policy attention. Of course, there has recently been considerable debate about the rise of policy approaches more explicitly and ambitiously aimed at promoting well­ being, a prominent example being the “New Benthamite” agenda in the UK, where—roughly—the maximization of well-being, conceived as life satisfac­ tion (“happiness”), is taken to be the sole aim of government, with costbenefit analyses centering on self-report measures of life satisfaction.1 This is essentially a variant of Bentham’s classical utilitarianism, substituting life satisfaction for pleasure as the standard of utility. It is not clear how far advocates of this approach think policymakers should aim directly to maxi­ mize life satisfaction—an important question since no philosophical utilitar­ ian to my knowledge thinks matters like racial discrimination and criminal convictions should be decided explicitly in terms of expected utility. I believe DOI: 10.4324/9781032702766-18

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the New Benthamites would agree that many decisions should follow the usual moral and legal rules, with explicit utility calculation only called for in certain contexts, though greater reassurance on this count—and guid­ ance regarding what those contexts are—would be helpful. At any rate, this approach to WBP has naturally raised concerns in many circles, both for the familiar reasons animating opposition to utilitarianism and because of doubts about the validity of the measures employed. But it is also among the most extreme positions recent well-being policy advocates have taken. More commonly, it is recognized that well-being is one among other concerns of policy, alongside matters like justice, capabilities, or environmental preservation, with well-being itself entering policy deliber­ ations through a plurality of metrics, as in the sort of “dashboard” approach favored by the OECD.2 WBP does not require any commitment to a particu­ lar theory of well-being, or to any comprehensive metric of well-being that is intended to assess fully all aspects of human welfare. Nor, as I will explain later, does it require the use of measures at all. But focusing policy directly on goods like happiness naturally can raise any number of practical and moral questions that attend government action, with worries about measurement and paternalism among the more promi­ nent concerns. Here I wish to discuss one form of the paternalism worry, namely the question of imposing alien values on the public, especially where the well-being of culturally different groups is at issue. The challenge for well-being policy is quite real, but I will argue that it is also tractable, pos­ ing no deep threat to the idea that well-being ought to be among the chief aims of public policy. To a great extent, WBP can proceed with a broad focus on certain consensus goods, or what I’ll call “consensus hallmarks of well-being.” I will understand “culture” in an extremely broad manner: very roughly, if two populations differ systematically in their psychologies—how they think, desire, feel, act, or respond to self-report measures—then they differ cultur­ ally in the sense that concerns us here. This may seem implausibly broad given our usual ways of thinking about culture, for instance suggesting that men and women tend to differ culturally, but it seems to me that the same sorts of difficulties that arise when comparing, say, self-reported well-being among Chinese and American individuals can occur within a single jurisdic­ tion—among the rural and urban, rich and poor, Black and White, Jewish and Baptist, and even within the typical spousal bedroom. Indeed, perhaps affluent city-dwellers in Shanghai and Manhattan share more in common culturally than either do with rural citizens in their own countries. 1 Pragmatic subjectivism Worries about paternalism can arise on multiple fronts in WBP, as with many kinds of policy. But one especially salient concern has to do with values: What standard of well-being is to be promoted? Given that ideals of personal

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well-being are bound to be diverse right down to the household level, how can the state responsibly aim to promote well-being? Won’t it inevitably have to favor certain ideals over others, paternalistically imposing alien standards on many if not most of its citizens for their own good? Even favoring a sub­ jective conception of well-being, as the New Benthamites do, has aroused sharp objections of this sort: By what authority may governments shape our collective lives on the contentious premise that our welfare consists solely in pleasure, or attitudes of life satisfaction? This is one of the worries that moti­ vate the widely discussed notion of liberal neutrality: roughly, states should be neutral concerning the nature of the good life, not taking a stand, or at least a controversial stand, on what is ultimately good in people’s lives. Given that it is impossible for a regime’s decisions to avoid working out better for some people than others, it is notoriously difficult to say what the neutrality constraint amounts to, and many have rejected it.3 Lacking any clear notion of what neutrality is supposed to mean, I intend to bypass the issue and build on a suggestion about the appropriate values for well-being policy that seems to me to defuse the basic worry. One can call it a form of neutrality if one likes; at any rate it seems roughly in the spirit of that idea. The suggestion, originally tendered by Valerie Tiberius and myself but one of several related proposals, is that WBP should promote well-being as its ostensible beneficiaries see it, regardless of what the correct conception of well-being might in fact be.4 We refer to this view as “pragmatic subjec­ tivism.” Somewhat more exactly, WBP should take people’s own personal welfare values as the appropriate criterion of benefit. By “values” we mean something more than mere preferences or desires, such as someone’s irra­ tional desire to down a fifth of vodka for dinner, or more prosaically a prefer­ ence for a certain flavor of ice cream. Rather, a person’s values are relatively stable, deeply embedded attitudes that represent what she sees as grounding reasons for her—as being worth desiring, appreciating, respecting, and so forth. What you value is what you ultimately care about, justifying your pursuit of other goods. So you might prefer strawberry ice cream over vanilla without in this sense valuing it; rather, what grounds your preference is that you enjoy strawberry more, and you value enjoyment. One reason to focus on values rather than mere preferences is that every­ day preferences often reveal as much about the menu of options on offer as they do about what people actually care about; you might choose a lonely existence out in the sprawl not because you like it but because the alterna­ tives, like a city home with dysfunctional schools, are even worse. Like most people you value good relationships and beautiful surroundings, but perhaps have little opportunity to reveal those values in your choices. Second, our everyday preferences and choices often reflect mistakes: irrationality, fore­ casting errors, and other predictable foibles of human decision-making that can result in a way of life that clashes badly with our values. This is the stuff of many “deathbed regret” tales. So what matters in our lives, from our per­ spective, is that they go well in the ways we care about, and not simply that

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we got whatever we happened to fancy at any given moment. Policy aimed at benefiting us should respect that fact. The basic idea so far leaves fairly open what counts as a person’s values, or at least the values that are relevant here. We need not be remotely exact here, but one question merits discussion. A  strongly subjectivist position would focus entirely on individuals’ explicit or express, unreflective values: more or less, what they think matters, as might be revealed simply by asking them. But we all know how unreliable our off-the-cuff judgments can be, and it is plau­ sible that people generally don’t think their spontaneous opinions about value count for very much in comparison with the values they would endorse on reflection. It is plausible that people’s values are better revealed by reflective than unreflective judgments. That granted, reflection takes many forms and can change our values, sometimes radically, and it is not obvious that our pre­ sent selves should feel beholden to what some highly idealized version of our­ selves would endorse. At any rate, it is questionable whether policymakers’ taking your best interests to reflect, say, the Stoic values your ideal self would accept is a way of treating you, as the very non-Stoic individual you now are, with respect. Rather than ideal reflection, we suggested a standard of “moder­ ate reflection” modeled on the sort of deliberation individuals might under­ take were they at the table, taking part in setting policy. Put another way, to what understanding of well-being would they consent were they in the room as a reasonably informed and reflective participant in policymaking? A natural worry is that policymakers seem to lack access to people’s values as understood here. I doubt any economist today would insist that other meth­ ods, like relying on preferences as revealed by market behavior, altogether avoid such problems. Of course our wants in life aren’t fully revealed by our pecuni­ ary transactions; some of us would suggest the most important ones—for love, happiness, our families and friends, beauty, excellence, achievement—largely escape this form of analysis. Be that as it may, at least the revealed preference method works from a standardized conception of well-being or utility whose criterion is not so difficult to implement in practice: look and see how money changes hands, more or less. Similarly, the Benthamite happiness-maximiza­ tion approach offers a reasonably definite, uniform, and arguably measurable standard of well-being to rely on: for instance, life satisfaction. Pragmatic subjectivism, by contrast, yields potentially as many standards of well-being as there are people, and it is no trivial matter to discern what a given citizen’s values are. And as a rule, governments are not in position to craft bespoke policy regimes. These points might be fatal to the enterprise of WBP if policymaking required a comprehensive account of well-being, or comprehensive measures of well-being, such as the Benthamite agenda employs. Given that no conception of well-being enjoys anywhere near a consensus among the public—think just of the diversity of religious doc­ trines—there simply is no saying, for policy purposes, just how well or badly citizens are doing on the whole. And there can be no all-in metric of well­ being such that we could determine the overall well-being of the citizenry.

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This is effectively the problem of cross-cultural WBP multiplied many times over. It is not just that, say, East Asian cultures understand well-being differently from Western European cultures, perhaps calling for different standards of well-being in different locales. (Note, importantly, how plausi­ ble it is that policy should not impose, say, a Confucian theory of well-being on cultures that strongly reject such mores. But once that point is conceded. then it is hard to see why we should not extend it to its natural conclusion: pragmatic subjectivism.) It is that every East Asian and every Western Euro­ pean may differ in their personal welfare values from every other. In a sense, each individual is a culture unto themselves. 2 Consensus hallmarks of well-being 2.1 Convergence on personal welfare values

But it was always a pipedream to suppose that nations, let alone the world, should unite under some uniform conception of well-being, or that govern­ ments should presume to know how to specify completely what the basic elements of a prudentially good life would be. It is hard enough to get a meet­ ing of minds between two philosophers who study the topic for a living (just among objective list theorists, the number of extant lists is approximately equal to the number of extant theorists). So what might at the moment seem a daunting obstacle for WBP is simply an obvious point that sensible people should have granted long ago. Again, WBP as practiced by public health agencies: you don’t need a philosophical theory of well-being to know that malaria is bad for people, wherever you look. “What’s your evidence that Nigerians disvalue malaria or its effects?” is probably a question that has been asked by no one, ever. A  fairly reliable way to promote well-being, I would venture, is to stop people from getting malaria. As it happens, human beings share many things in common. It is telling that you and I can probably visit any community on the planet and, if not taken for an enemy and killed on sight, make friends among the locals. And that many Hollywood films, and many songs, are enthusiastically received among widely disparate cultures around the world. There are numerous and often deep differences of course—your attempt at gift-giving might back­ fire terrifically—but about the most important elements of well-being there appears to be considerable overlap. There is, for example, considerable diver­ sity in people’s values regarding happiness: what varieties of happiness are valued, what degree of happiness is sought (maybe just not being unhappy), and so on.5 But to my knowledge, no one has reacted to the marked rise in depression and anxiety disorders around the world in recent years with serious reservations about whether this is a bad thing. “What do I  know? Maybe people in India like to be depressed.” Yet depression and anxiety arguably just are problems of happiness, being extreme forms of unhappi­ ness on some of the more widely held understandings of happiness.6 One

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of the more urgent aims of those wishing to promote happiness should be the alleviation of gratuitous unhappiness, particularly where it involves the greatest suffering. So there appears to be considerable overlap in people’s values across diverse populations, even in matters of personal welfare. To this point we can add that policymaking is a crude business that usually doesn’t require, and perhaps should not attempt, much in the way of precision. That the state can’t discern the difference between your preference for vanilla and mine for chocolate is of no consequence, and very likely a good thing. For all the aspi­ rations of welfare economics to precise and rigorous cost-benefit accounting, from the beginning it was evident, indeed made quite explicit, that counting money could at best yield only the crudest information about human well­ being. The precision was largely illusory—at best, an exact reckoning of a modest sliver of the relevant facts.7 It seems to me that there is sufficient consensus, both within and across cul­ tures, on certain important welfare values that policymaking could be consider­ ably improved by focusing attention on those values. There will remain wide scope for disagreement about other values, and about how to interpret and weigh even the consensus goods—young atheists in Miami and elderly Sun­ nis in Lahore might agree in strongly valuing close personal relationships and several other weighty matters while nonetheless having quite different ideals of living. But now, imagine a person from each to be struck by some grave misfor­ tune, leaving them in dire straits by their own standards. What do you imagine? That the Miamian is aggrieved by the closing of their favorite night club, while the Lahorite suffers some fate wholly inscrutable to the Miamian? Or do you imagine such events as: illness, the sickness of a family member, the untimely death of a close friend, threats of violence, destitution, unemployment, debili­ tating depression, and so on? These are just the sorts of outcomes good policy should seek to make less prevalent, so far as can reasonably be accomplished. A natural thought is that WBP should focus on important consensus val­ ues. But this is not quite right, at least if values are understood in the present sense: there could be a robust consensus that rewarding work is centrally important for well-being, but some—hedonists, for example—might see work as an instrumental good without exactly valuing it; what grounds their desire for rewarding work, in their view, is that it contributes to other goods that they do value, like a pleasant life. In any case, it would be desirable in the public arena to minimize reliance on fine distinctions, such as between values and mere desires or preferences. In addition, public policy is better served by concrete and publicly evaluable goals than abstract, inscrutable ones, other things equal. For example, efforts to promote environmental sustainability in policy appear to gain wider support where goals are framed in concrete terms like “flooding” rather than more abstract terms like “the environment,” where it is less clear what is meant and people are freer to interpret the mes­ sages in different ways—for example, as the partisan concerns of urban elites with little experience of the natural world.8

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2.2 Consensus hallmarks: the basic idea

It may be more profitable for policy to focus in practice, not on values, but rather on key signs or indicators of well-being, or what I will call hallmarks of well-being. Whatever one thinks about the axiological status of personal relationships or work, there will be little dispute that doing well or poorly in either of these areas tends to convey a great deal of information about an individual’s well-being. In addition, something could be a reliable indica­ tor of multiple values, thus perhaps serving as a consensus object of WBP even where there isn’t consensus on particular values; life satisfaction might be an example. In short, that something is a hallmark of well-being might be a matter of consensus even where people differ about the values that constitute well-being. What we want, I am suggesting, are consensus hall­ marks of well-being (CHW).9 We may still want to retain the language of values when discussing the ultimate justification of WBP, since a hallmark may only be a reliable sign of well-being and not itself something people regard as very important. But a focus on hallmarks usefully directs atten­ tion toward the proximate objects of policy attention—for instance, the sorts of indicators that would be sought where measures are employed. In addition, “hallmark” signals that we are talking about major signs of well­ being or its lack, focusing attention on the most significant issues regarding well-being.10 It is possible that the public will be in consensus on something as a hall­ mark of well-being, but the data suggest they are wrong about that. Perhaps wealth is like this, at least in some instances. It may not always be obvious how to handle such cases, but ideally our key measures of well-being for policy will be matters of both public and expert consensus. In some cases, it may suffice if there’s merely an expert consensus that those measures predict the fulfillment of citizens’ values, whether the citizens themselves realize it or not, though it will naturally be desirable that the public come to understand such metrics. Some clarification of “hallmark of well-being” is in order. Lack of oxygen is a reliable hallmark of well-being in some sense: it tells us death is very soon in the offing. That’s not what we’re after. Nor do we want trivial goods that reliably make a small difference to well-being, like a daily gelato. Rather, I mean an indicator that tracks overall well-being to some significant extent in a wide range of contexts. (I am using “indicator” and “metric” broadly, not just to refer to measures. An intrinsic element of well-being like pleasure, or a friend’s smile, can serve as an indicator, conveying information about well-being.) This in turn has two aspects: 1. Substantial changes in the indicator should predict significant—that is, comparable or somewhat smaller, but non-trivial—changes in overall well-being. Big news on that measure—say a sharp decline in relationship quality—should also tend to be significant news for well-being in general.

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2. Substantial changes in overall well-being should often be explicable in terms of changes in that indicator. Bad jobs often explain why people aren’t doing well. Hypoxia, not so much. Asteroid strike, virtually never. Suppose you have a number of friends from your childhood travels scat­ tered around the globe; now adults, you’re reconnecting after a long time and want to know how each is doing. What are the first things you’d want to know about? How happy they are is a natural starting point. But also, how are their relationships? How’s their health? What are they doing with their time—some­ thing rewarding? How about major stressors: too much to do, not enough to pay the bills, family members in peril . . . is anything weighing heavily on them? Such questions are likely to seem perfectly sensible to just about anyone, and affirmative answers to all of them would seem to license a pretty confident inference that they are indeed doing well, whether you are talking about an Amish farmer, a Tokyo barber, or a Bolivian surgeon. Negative answers to any of them would likely be significant cause for concern about their welfare. It is noteworthy that once “can you pay the bills” has been covered, it would be singularly odd, and not just because in poor taste, to add “how much money do you have?” to the list. It just doesn’t seem that important. Some years ago, there was a good deal of fuss about whether happiness was so strongly determined by an individual’s internal “set point” that, as one paper by leading psychologists ventured, trying to be happier might be as futile as trying to be taller.11 This is a good case study in the value of tak­ ing striking empirical claims with a grain of salt until they’ve been pretty well vetted because, as was plain even at the time, the suggestion was preposter­ ous. We all know that a good versus a bad relationship can easily make a big and lasting difference in how happy or otherwise well someone is doing, and likewise a good versus a bad job, or being unemployed. Similarly, major stressors like family or money problems. These are essentially fixed points in ordinary thinking about well-being, much like “hornet stings are painful,” and if the data seem to suggest otherwise, we need new data, or better inter­ pretations of them. My suggestion is that we should leverage these fixed points—consensus hallmarks—for at least two policy-relevant ends:12 1. Goal-setting 2. Choosing measures In neither of these cases would I suggest relying exclusively on CHW, for one thing because other factors like justice, non-welfare goods like capabilities, and other aspects of well-being may be relevant depending on the context. (Perhaps faith-related goods should be considered in some cases, where they are important values and can be considered without risk of sectarian con­ flict.) It may be sufficient simply to have CHW in the mix, ensuring that we take account of key well-being issues in deliberating about policy.

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2.3 Well-being policy, data-free and otherwise

The most basic role for CHW is to aid in setting goals for policy, which need not require the use of measures at all depending on the context. Bhutan’s “Gross National Happiness” agenda strongly and by many accounts success­ fully guided policy for decades before measures were implemented; likewise, California town San Luis Obispo famously took varied steps to improve quality of life, again without employing measures of well-being.13 Simply putting goods like “sense of community” on the agenda, letting deliberators judge matters on an informal basis, including citizen testimony, may be quite sufficient in many cases. To a great extent, WBP can perfectly well be—and sometimes should be—“data-free,” in the sense that no quantitative data need to be collected, though of course relevant scientific knowledge should not be ignored, including general knowledge about the causes and correlates of well-being. One reason for this is that measurement is inherently “lossy,” omitting much potentially relevant information, and invariably involves error. Its benefits tend to diminish relative to personal observation and con­ versation the more intimate the setting; measures may be more useful at the national rather than village level, for instance. Another is that quantitative analysis is impersonal and mechanical in a way that is not always helpful in human life. To take a limiting case, parents generally need not, and likely should not, track their children’s welfare with a battery of questionnaires, as if they were lab rats. Sometimes good-old-fashioned personal interaction is by far the more humane and informative way to deal with and help each other. Closer to home for many readers, quantitative assessments of teaching are notoriously problematic, even if ultimately a necessary evil, for reasons not entirely unlike the reasons not to use data analysis on the family. (Though at least in the home it seems less likely that gender bias in how surveys are filled out will result in Mom getting fired.) There are interesting questions about when quantitative metrics should, and should not, be employed and in what manner, but we need not settle them here. Perhaps it suffices simply to note that good policymaking tends fittingly and ineliminably to have a strong personal element: as with decisionmaking in other domains of life, there is no substitute for human judgment and relationships, and as in any collective endeavor, that judgment needs to be exercised in conversation with each other, reasoning together, mak­ ing compromises, and, yes, in many cases a certain amount of horse-trading, until we have worked out arrangements all can live with. Where the interests of persons spanning diverse cultures and levels of advantage are at issue, there will of course need to be special care to bring representative voices to the table, listen to them, and observe sharp constraints on what they can be expected to sacrifice for the benefit of others—far more of course than typi­ cally happens in practice. But the challenge is less a paucity of data—gathered by whom, using metrics designed by whom, validated among which popula­ tions, for whose purposes?—than a failure of representation in the discussion.

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That noted, there is of course a critical and ineliminable role for data col­ lection in policy contexts. It is worth knowing about inflation and unemploy­ ment rates, GDP, and how many children are going hungry; not to mention whether people are lonely, depressed, stressed, or engaged by meaningful work. So a major question regarding WBP is what sorts of measures to use and how. Granting that we should not seek a “gold standard” summary measure that purports to represent citizens’ overall well-being in a single number, which measures should inform policy and which should be most prominently displayed in summary discussions of well-being issues? Here the CHW should play a large role: well-being measures for policy should espe­ cially focus on consensus hallmarks of well-being, at least insofar as reason­ ably valid measures of those hallmarks are feasible. 2.4 Consensus hallmarks: examples

What, then, are the consensus hallmarks of well-being? It seems unlikely that any comprehensive, canonical list is possible, not least because there’s no canonical understanding of “consensus,” or of how to individuate the pos­ sible items on the list. The question calls for an ongoing project to determine what people actually think about the matter, what we have decent meas­ ures of, what the data support, and what will best serve the purposes of democratic deliberation.14 For example, laypersons might be shown possible results on various questionnaire items about common issues—say, unable to pay the bills—and asked to rate their level of confidence that a given set of results reveals a person to be doing well or badly. The items that consistently make a large difference in participants’ responses would be good candidates for consensus predictors. While consensus items cannot be determined a priori, we have a fair amount of common sense and scientific resources to go on. Happiness and health should be relatively uncontroversial, and are already the foci of mas­ sive bodies of research relating to human well-being. These are broad cat­ egories on which we should expect substantial differences, for instance, with East Asian cultures favoring low-arousal forms of happiness like peace of mind, while Westerners tend to value high-arousal “cheerful-type” feelings more.15 But there should be broad agreement that the high rates of extreme unhappiness many countries are seeing today, including depression and anxi­ ety disorder, signal serious well-being problems, and that it is far better to enjoy peace of mind, a sense of vitality, and to be in good spirits. Beyond health and happiness, one empirically based starting point is Ryan and Deci’s self-determination theory, which is probably the best-known account of universal psychological needs, positing three basic needs for autonomy, relatedness, and competence.16 The value of autonomy, which tends to be associated with Western-style individualism, remains in dispute, though it has been plausibly argued that, in some sense, it is valued in a very wide range of cultures; even if you are happy for your parents to choose

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your career and spouse, you might still fare better having some control in your everyday life, doing activities you endorse, rather than being constantly under the lash. A sense of meaning is also widely cited, particularly in the eudaimonic literature and Seligman’s related PERMA framework—for posi­ tive emotion, engagement, relationships, meaning, and accomplishment— but also by subjective well-being researchers like Paul Dolan.17 To capture the commonsensical importance of good versus bad work, we might com­ bine several of these items—meaning, engagement, competence, and perhaps autonomy—into a category of rewarding occupation, where “occupation” can include unpaid activities like hobbies or caregiving.18 Plausibly, a core hallmark of well-being is spending plenty of time engaged by skilled, mean­ ingful activities. To these items, I would add a sense of security, which is to say (subjec­ tive) freedom from major stressors: feeling secure in your possession of the things that matter to you. This is not so often discussed in the subjective well-being literature, oddly, and existing measures of stressors (as opposed to stress itself) are of uncertain utility, either having questionable validity or being too long for most purposes.19 Yet it is obvious that things like having a child in the hospital, not being able to make ends meet, being overworked, or the prospect of career failure are often highly stressful and deleterious to well-being. This has been only the most cursory discussion of a list of hallmarks, meant only to illustrate the form CHW might take. That is, stated at a high level of generality: 1. 2. 3. 4. 5.

Health Happiness Relationships Occupation Security

If what we want is to understand how well people are doing relative to their own values, these metrics would, I suggest, be a pretty good starting point. Whatever one’s cultural background or conception of well-being, it seems unlikely that one could be doing well if faring poorly along these dimen­ sions, or poorly if one is doing well in all these areas. If so, then policy­ makers should seek to include indicators of all of these constructs in their armamentarium, and to count them among the key indicators of well-being in their deliberations. Because these are such general categories that can be conceived and valued in different ways—relationships, for instance, can be evaluated along a variety of dimensions and we already saw that cultures differ in the forms of happiness they favor—there may be significant varia­ tion in the exact measures deployed for different populations. But the broad goals appear to be fairly universal, and certain measures may have universal validity, such as “how many people could you count on for help in a health

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emergency?” Even if not the single number many seek, this might yield a far more manageable dashboard than the sprawling arrays of indicators that some governments are struggling to follow, without clear guidance on where to focus. Consider two examples of WBP: 1. Promoting walkable, mixed-use communities like “fifteen-minute cities” with attractive public spaces and ample greenery, partly with the aim of building sense of community and other relationships, happiness, health, a sense of belonging and security. 2. Incentivizing reduced work hours such as a 4-day workweek to promote health, happiness, (time) security, relationships, and rewarding work. Such policies may or may not make sense on purely economic grounds, or for other reasons like sustainability, and of course economic analysis can play a role in either case. But an obvious reason to do them is simply to make peo­ ple’s lives better. And we don’t need to impose a tendentious conception of well-being on people: such policies have obvious attractions whatever one’s cultural background or personal ideals, and even if, all things considered, one opposes them. There will naturally be those who prefer other arrangements like living in the country or working longer hours, perhaps because they face different circumstances, understand or rank the consensus goods differently, or value non-consensus goods. The CHW approach, combined with something resembling pragmatic subjectivism, is explicitly meant not to resolve such differences. It focuses attention on certain consensus goods that can play a large role in shaping policy, but leaves open how disagreements and non-consensus goods are to be addressed, except that citizens’ values, consensus, or otherwise, determine the relevant standard of benefit for policy purposes. Beyond that, divergent priorities should presumably be handled in the usual way specified by our political morality: leaving options open for those wanting them, forging com­ promises, and allowing that some people aren’t going to get their preferred policy, so long as minority voices are adequately respected. It should not be handled, however, by mechanical decision procedures that impose a uniform set of welfare values on the public, as with the Benthamite approach. The state is in no position to decide, in any but the roughest terms, what is best for its citizens. This is no great concession: as a rule, governments tend to function well only in the roughest terms. Conclusion I have argued that policies aimed at the promotion of well-being need not be paternalistic even in the face of extensive cross-cultural disagreement. For there is liable to be substantial consensus on certain hallmarks of well-being, like supportive relationships and a rewarding occupation, and there is no

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reason to think that policies favoring such goals must founder on the plural­ ism even of culturally diverse populations. I do not wish to understate the challenges facing measurement among diverse populations and across cultures. As noted earlier, substantial differ­ ences can occur even within a given city, where, for instance, Black St. Lou­ isans appear to report lower stress than White residents, despite many signs pointing toward a very different reality.20 I am hopeful that such issues can be dealt with reasonably well for policy purposes, for instance, through mul­ timethod studies aimed at calibrating measures across groups. But the issues must be taken seriously. It would be problematic, to say the least, to allocate resources away from disadvantaged groups because their coping skills or lesser sense of entitlement causes them to understate their distress compared to privileged neighbors. But again, measurement is secondary to the question of setting goals in policy. For better or worse, policy is frequently driven less by data collection than by what people see on the ground. If our publicly shared goals align with our values better than, say, “counting money,” we are likely to get bet­ ter policy—by our own lights, as we might have chosen were we in the room. Far from inviting heavy-handed paternalism, that seems like exactly what the anti-paternalist should want.21 Notes 1 Paul Frijters and Christian Krekel, A Handbook for Wellbeing Policy-Making: History, Theory, Measurement, Implementation, and Examples (New York: Oxford University Press, 2021); Richard Layard, Happiness: Lessons from a New Science (New York: Penguin, 2005); Andrew Clark et al., The Origins of Hap­ piness: The Science of Well-Being Over the Life Course (Princeton, NJ: Prince­ ton University Press, 2018); Paul Frijters et al., “A Happy Choice: Wellbeing as the Goal of Government,” Behavioural Public Policy (2019): 1–40, https://doi. org/10.1017/bpp.2019.39. I am setting aside some niceties here, such as the use of others measures like affect for certain groups like children, and the combi­ nation of happiness and life expectancy measures (yielding well-being-years or “WELLBYs”). 2 See, for example, the OECD’s Better Life Initiative at www.oecd.org/wise/better­ life-initiative.htm. The capability approach is sometimes characterized as a form of WBP but was developed precisely as an alternative to WBP and is best treated as a distinct approach to policy assessment focused on freedoms or opportunities rather than outcomes like well-being. Both capabilities and well-being seem to be important metrics of advantage, for different reasons. 3 For reviews, see, for example, Steven Wall, “Perfectionism in Moral and Political Philosophy,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (Metaphysics Research Lab, Stanford University, 2021), https://plato.stanford. edu/archives/fall2021/entries/perfectionism-moral/; G. Klosko and S. Wall, eds., Perfectionism and Neutrality: Essays in Liberal Theory (Lanham, MD: Rowman & Littlefield, 2003). 4 Daniel M. Haybron and Valerie Tiberius, “Well-Being Policy: What Standard of Well-Being?,” Journal of the American Philosophical Association 1, no. 4 (Decem­ ber  29, 2015): 712–733, https://doi.org/10.1017/apa.2015.23. While there are

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significant differences, similar views are defended by Gil Hersch, “No TheoryFree Lunches in Well-Being Policy,” The Philosophical Quarterly 70, no. 278 (January 1, 2020): 43–64, https://doi.org/10.1093/pq/pqz029; Sam Wren-Lewis, “Towards a Widely Acceptable Framework for the Study of Personal Well-Being,” in Well-Being in Contemporary Society, ed. Johnny H. Søraker et al. (Springer, 2015), 17–38, http://link.springer.com/chapter/10.1007/978-3-319-06459-8_2; Anna Alexandrova, A Philosophy for the Science of Well-Being (New York: Oxford University Press, 2017); Anna Alexandrova and Mark Fabian, “Democra­ tising Measurement: Or Why Thick Concepts Call for Coproduction,” European Journal for Philosophy of Science 12, no. 1 (March 1, 2022): 1–23, https://doi. org/10.1007/s13194-021-00437-7; Tim E. Taylor, “The Proper Role for Wellbe­ ing in Public Policy: Towards a Pluralist, Pragmatic, Theory-Neutral Approach,” in The Politics of Wellbeing : Theory, Policy and Practice, ed. Ian Bache and Karen Scott, Wellbeing in Politics and Policy (Cham: Springer International Publishing, 2018), 71–93, https://doi.org/10.1007/978-3-319-58394-5_4; Jennifer Hawkins, “Theory without Theories: Well-Being, Ethics, and Medicine,” The Journal of Medicine and Philosophy: A  Forum for Bioethics and Philosophy of Medicine 46, no. 6 (December  1, 2021): 656–683, https://doi.org/10.1093/jmp/jhab028; David Sobel, “Well-Being as the Object of Moral Consideration,” Economics and Philosophy 14 (January 1, 1998): 249–282; M. Fleurbaey, “The Importance of What People Care About,” 11, no. 4 (October 31, 2012): 415–447, https://doi. org/10.1177/1470594X12447775; D. M. Hausman, Preferences, Value, Choice, and Welfare (New York: Cambridge University Press, 2011), http://books.google. com/books?id=tqLZ13emsB8C. For criticism, see, for example, Roberto Fuma­ galli, “Theories of Well-Being and Well-Being Policy: A  View from Methodol­ ogy,” Journal of Economic Methodology 28, no. 1 (January 2, 2021): 124–133, https://doi.org/10.1080/1350178X.2020.1868780. Owen Flanagan et al., Against Happiness (New York: Columbia University Press, 2023). David B. Yaden and Daniel M. Haybron, “The Emotional State Assessment Tool: A Brief, Philosophically Informed, and Cross-Culturally Sensitive Measure,” The Journal of Positive Psychology 17, no. 2 (January 13, 2022): 151–165, https:// doi.org/10.1080/17439760.2021.2016910. Anna Alexandrova and Daniel M. Haybron, “High Fidelity Economics,” in The Elgar Companion to Recent Economic Methodology, ed. Wade Hands and John Davis (Northampton, MA: Edward Elgar, 2012), 94–117. Ihnji Jon, Cities in the Anthropocene (London: Pluto Press, 2021). See also Tim E. Taylor, “The Markers of Wellbeing: A Basis for a Theory-Neutral Approach,” International Journal of Wellbeing 5 (June 20, 2015): 75–90, https:// doi.org/10.5502/ijw.v5i2.5; Tim E. Taylor, “Towards Consensus on Well-Being,” in Well-Being in Contemporary Society, ed. Johnny H. Søraker et  al., Happi­ ness Studies Book Series (Cham: Springer International Publishing, 2015), 1–16, https://doi.org/10.1007/978-3-319-06459-8_1. In talks using earlier versions of this material I used the expression “consensus predictors of well-being.” “Hallmarks” seems more apt than “predictors,” both for capturing the question of magnitude and for ease of comprehension. David Lykken and Auke Tellegen, “Happiness Is a Stochastic Phenom­ enon,” Psychological Science 7, no. 3 (May  1, 1996): 186–189, https://doi. org/10.1111/j.1467-9280.1996.tb00355.x. Consensus hallmarks are also crucial, I believe, for validating measures of well­ being, but that question can be set aside here. Dan Buettner, Thrive: Finding Happiness the Blue Zones Way, Reprint ed. (National Geographic, 2011).

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14 For an interesting proposal, see Daniel J. Benjamin et  al., “Beyond Happiness and Satisfaction: Toward Well-Being Indices Based on Stated Preference,” Ameri­ can Economic Review 104, no. 9 (September  2014): 2698–2735, https://doi. org/10.1257/aer.104.9.2698. 15 J. L. Tsai and BoKyung Park, “The Cultural Shaping of Happiness,” in Positive Emotion: Integrating the Light Sides and Dark Sides, ed. Judith Tedlie Moskowitz and June Gruber (New York: Oxford University Press, 2014), 345–362. I  take “happiness” in this context to coincide roughly with the category of subjective well-being, allowing for both life satisfaction and emotional well-being metrics. 16 Richard M. Ryan, Randall R. Curren, and Edward L. Deci, “What Humans Need: Flourishing in Aristotelian Philosophy and Self-Determination Theory,” in The Best within Us: Positive Psychology Perspectives on Eudaimonia (Wash­ ington, DC: American Psychological Association, 2013), 57–75, https://doi. org/10.1037/14092-004. 17 M. Seligman, Flourish: A  Visionary New Understanding of Happiness and Well-Being (New York: Simon  & Schuster, 2011); Paul Dolan and Laura Kudrna, “Sentimental Hedonism: Pleasure, Purpose, and Public Policy,” in Handbook of Eudaimonic Well-Being, ed. Joar Vittersø, vol. 62, 2 vols. (Berlin: Springer International Publishing, 2016), 437–452, https://doi. org/10.1007/978-3-319-42445-3_29. 18 For related discussion of this and other items suggested here as hallmarks, see Daniel M. Haybron, Happiness: A Very Short Introduction (New York: Oxford University Press, 2013). 19 See, for example, A. D. Kanner et  al., “Comparison of Two Modes of Stress Measurement: Daily Hassles and Uplifts versus Major Life Events,” Journal of Behavioral Medicine 4, no. 1 (March 1, 1981): 1–39, which contains many useful items but is too long for most applications. We had some success with an abbrevi­ ated version in Yaden and Haybron, “The Emotional State Assessment Tool.” 20 Flanagan et al., Against Happiness. 21 I am grateful to audiences at University of Pennsylvania, Ohio State University and Virginia Tech for comments on previous versions of this material.

References Alexandrova, Anna. A Philosophy for the Science of Well-Being. New York: Oxford University Press, 2017. ———, and Mark Fabian. “Democratising Measurement: Or Why Thick Concepts Call for Coproduction.” European Journal for Philosophy of Science 12, no. 1 (March 1, 2022): 1–23. https://doi.org/10.1007/s13194-021-00437-7. Alexandrova, Anna, and Daniel M. Haybron. “High Fidelity Economics.” In The Elgar Companion to Recent Economic Methodology, edited by Wade Hands and John Davis, 94–117. Northampton, MA: Edward Elgar, 2012. Benjamin, Daniel J., Ori Heffetz, Miles S. Kimball, and Nichole Szembrot. “Beyond Happiness and Satisfaction: Toward Well-Being Indices Based on Stated Prefer­ ence.” American Economic Review 104, no. 9 (September  2014): 2698–735. https://doi.org/10.1257/aer.104.9.2698. Buettner, Dan. Thrive: Finding Happiness the Blue Zones Way. Reprint edition. Washington, DC: National Geographic, 2011. Clark, Andrew, Sarah Flèche, Richard Layard, Nattavudh Powdthavee, and George Ward. The Origins of Happiness: The Science of Well-Being over the Life Course. Princeton, NJ: Princeton University Press, 2018.

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Dolan, Paul, and Laura Kudrna. “Sentimental Hedonism: Pleasure, Purpose, and Public Policy.” In Handbook of Eudaimonic Well-Being, edited by Joar Vittersø, Vol. 62: 437–52. Berlin: Springer International Publishing, 2016. https://doi. org/10.1007/978-3-319-42445-3_29. Flanagan, Owen, Joseph E. LeDoux, Bobby Bingle, Daniel M. Haybron, Batja Mes­ quita, Michele Moody-Adams, Songyao Ren, Anna Sun, Yolonda Wilson, Jennifer A. Frey, Hazel Rose Markus, Jeffrey D. Sachs, and Jeanne L. Tsai. Against Happi­ ness. New York: Columbia University Press, 2023. Fleurbaey, M. “The Importance of What People Care About.” Politics, Phi­ losophy  & Economics 11, no. 4 (October  31, 2012): 415–47. https://doi. org/10.1177/1470594X12447775. Frijters, Paul, Andrew E. Clark, Christian Krekel, and Richard Layard. “A  Happy Choice: Wellbeing as the Goal of Government.” Behavioural Public Policy (2019): 1–40. https://doi.org/10.1017/bpp.2019.39. Frijters, Paul, and Christian Krekel. A Handbook for Wellbeing Policy-Making: His­ tory, Theory, Measurement, Implementation, and Examples. New York: Oxford University Press, 2021. Fumagalli, Roberto. “Theories of Well-Being and Well-Being Policy: A  View from Methodology.” Journal of Economic Methodology 28, no. 1 (January  2, 2021): 124–33. https://doi.org/10.1080/1350178X.2020.1868780. Hausman, D. M. Preferences, Value, Choice, and Welfare. New York: Cambridge University Press, 2011. http://books.google.com/books?id=tqLZ13emsB8C. Hawkins, Jennifer. “Theory Without Theories: Well-Being, Ethics, and Medicine.” The Journal of Medicine and Philosophy: A Forum for Bioethics and Philosophy of Medicine 46, no. 6 (December 1, 2021): 656–83. https://doi.org/10.1093/jmp/ jhab028. Haybron, Daniel M. Happiness: A Very Short Introduction. New York: Oxford Uni­ versity Press, 2013. ———, and Valerie Tiberius. “Well-Being Policy: What Standard of Well-Being?” Journal of the American Philosophical Association 1, no. 4 (December 29, 2015): 712–33. https://doi.org/10.1017/apa.2015.23. Hersch, Gil. “No Theory-Free Lunches in Well-Being Policy.” The Philosophi­ cal Quarterly 70, no. 278 (January  1, 2020): 43–64. https://doi.org/10.1093/pq/ pqz029. Jon, Ihnji. Cities in the Anthropocene. London: Pluto Press, 2021. Kanner, A. D., J. C. Coyne, C. Schaefer, and R. S. Lazarus. “Comparison of Two Modes of Stress Measurement: Daily Hassles and Uplifts versus Major Life Events.” Journal of Behavioral Medicine 4, no. 1 (March 1, 1981): 1–39. Klosko, G., and S. Wall, eds. Perfectionism and Neutrality: Essays in Liberal Theory. Lanham, MD: Rowman & Littlefield, 2003. Layard, Richard. Happiness: Lessons from a New Science. New York: Penguin, 2005. Lykken, David, and Auke Tellegen. “Happiness Is a Stochastic Phenom­ enon.” Psychological Science 7, no. 3 (May  1, 1996): 186–89. https://doi. org/10.1111/j.1467-9280.1996.tb00355.x. Ryan, Richard M., Randall R. Curren, and Edward L. Deci. “What Humans Need: Flourishing in Aristotelian Philosophy and Self-Determination Theory.” In The Best within Us: Positive Psychology Perspectives on Eudaimonia, 57–75. Wash­ ington, DC: American Psychological Association, 2013. https://doi.org/10.1037/ 14092-004.

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Seligman, M. Flourish: A  Visionary New Understanding of Happiness and WellBeing. New York: Simon & Schuster, 2011. Sobel, David. “Well-Being as the Object of Moral Consideration.” Economics and Philosophy 14 (January 1, 1998): 249–82. Taylor, Tim E. “The Markers of Wellbeing: A Basis for a Theory-Neutral Approach.” International Journal of Wellbeing 5 (June  20, 2015a): 75–90. https://doi. org/10.5502/ijw.v5i2.5. ———. “Towards Consensus on Well-Being.” In Well-Being in Contemporary Soci­ ety, edited by Johnny H. Søraker, Jan-Willem Van der Rijt, Jelle de Boer, Pak-Hang Wong, and Philip Brey, 1–16. Happiness Studies Book Series. Cham: Springer Inter­ national Publishing, 2015b. https://doi.org/10.1007/978-3-319-06459-8_1. ———. “The Proper Role for Wellbeing in Public Policy: Towards a Pluralist, Pragmatic, Theory-Neutral Approach.” In The Politics of Wellbeing: Theory, Policy and Practice, edited by Ian Bache and Karen Scott, 71–93. Wellbeing in Politics and Policy. Cham: Springer International Publishing, 2018. https://doi. org/10.1007/978-3-319-58394-5_4. Tsai, J. L., and BoKyung Park. “The Cultural Shaping of Happiness.” In Positive Emotion: Integrating the Light Sides and Dark Sides, edited by Judith Tedlie Moskowitz and June Gruber, 345–62. New York: Oxford University Press, 2014. Wall, Steven. “Perfectionism in Moral and Political Philosophy.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta. Metaphysics Research Lab, Stanford University, 2021. https://plato.stanford.edu/archives/fall2021/ entries/perfectionism-moral/. Wren-Lewis, Sam. “Towards a Widely Acceptable Framework for the Study of Personal Well-Being.” In Well-Being in Contemporary Society, edited by Johnny H Søraker, Jan-Willem Van der Rijt, Jelle de Boer, Pak-Hang Wong, and Philip Brey, 17–38. Springer, 2015. http://link.springer.com/chapter/10.1007/978-3-319-06459-8_2. Yaden, David B., and Daniel M. Haybron. “The Emotional State Assessment Tool: A Brief, Philosophically Informed, and Cross-Culturally Sensitive Measure.” The Journal of Positive Psychology 17, no. 2 (January 13, 2022): 151–65. https://doi. org/10.1080/17439760.2021.2016910.

14 Aristotle, Athens, and modern democracy Prospects for a usable past V. Bradley Lewis

Introduction If the last decade of the twentieth century presented the paradoxical specta­ cle of the simultaneous practical triumph and theoretical exhaustion of lib­ eral democracy as a project, the first two decades of the twenty-first century have presented us with all-too-tangible evidence of deep crisis in the practi­ cal order, a situation openly acknowledged by some of liberalism’s staunch­ est defenders.1 And yet, for all the proposals—often vague and surprisingly small-scale—that have appeared beneath the flag of “post-liberalism,” the most prominent real embodiments of post-liberal regime politics are both repugnant and beset by crises of their own.2 Nevertheless, the problems faced by contemporary liberal democracies are real, and contemporary political theory has often been of little help in addressing them. One well-known way of neatly characterizing liberal democracy’s deepest problem is the so-called Böckenförde Dilemma (anticipated by Tocqueville): “the liberal, secularized state is sustained by conditions it cannot itself guar­ antee.”3 Böckenförde’s point was that the modern liberal state lived for a long time on, as it were, inherited moral capital, the replenishment of which was made impossible by modern liberalism’s own commitments. Seculariza­ tion deprived it of a necessary source of solidarity. For a time, nationalism became a secular source of state unity, but that has disintegrated in the face of the “individualism of human rights.”4 The modern state had, on his view, denied itself the means of its own moral animation for the sake of its driving goal, liberty. Among the paths that Böckenförde thought closed to the liberal democratic state was “the revival of the Aristotelian polis tradition.”5 While Böckenförde did not elaborate on his rejection of the “Aristotelian polis tradition,” one can surmise that it was connected to the differences between the modern state and the classical Greek polis, the centrality of freedom to modern liberal democracy and the relative unimportance of that value in classical thought, and, Aristotle’s own quite negative judgment about democracy. Without disputing his views about the importance of Christian­ ity in the formation and maintenance of western political institutions and practice, I want to argue in this chapter that Böckenförde’s rejection of the DOI: 10.4324/9781032702766-19

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classical tradition was overly hasty and sweeping. More specifically, I want to argue that if we look at the most important aspects of Aristotle’s politi­ cal science, nothing in it is simply incompatible with the practice of modern liberal democracy, and if we look at his explicit discussion of democracy, we will see that it is more complex and nuanced than often thought.6 Moreover, modern classical scholarship has further complicated the picture by showing that some of Aristotle’s criticism were inaccurate. If we look at Aristotle’s account in a kind of dialectical relationship with classical, especially Athe­ nian, democracy, the values of self-government, citizenship, and political moderation are illuminated in ways that can help us rethink and improve the practice of modern liberal democracy in a time of unprecedented challenge. None of this entails any attempt to recreate the polis as such or replace the modern state. What we look for in appealing to the classical Greeks—the inventors of democracy—is not a model for some radical reform project, but resources and critical distance that help to understand and improve our practice. My discussion proceeds in four parts: first we will need to look more care­ fully at the basic conceptual structure of Aristotle’s political science by refer­ ence to his closely interrelated notions of the city, the regime, and citizenship. Second, we will examine Aristotle’s characterization of democracy and his most important criticisms of it as a political regime. Third, we will consider complexities of Aristotle’s view that stem from other aspects of his own political theory and actual Greek political practice as described by modern students of Greek democracy. In the conclusion, I return to the reasons for Böckenförde’s rejection of the relevance of the classical tradition and sketch the basis of a response. 1 City, Regime, Citizen The importance of the city (polis) in Aristotle’s “philosophy of human things”7 can be seen in both his identification of the “science or capacity” that has as its object the human good as “the political art” (politikē) and his repeated characterization of human beings as “political animals.”8 He also famously characterizes human beings as “rational animals.”9 The rational­ ized developmental account of the city in the first book of the politics sup­ plies the connection between rational and political nature. It is only in a community that is maximally able to sustain a self-sufficient life, that is, one that goes beyond the provision of basic necessities and the ruling principle of which is not kinship, but reason in a practical sense, so the full range of natural human capacities become manifest. The most important of these capacities is reason, but not only practical reason. The kind of life made pos­ sible in a city in turn makes possible the emergence of philosophy itself.10 Full human flourishing, therefore, takes place in the context of the city, but just what kind of community is a city?

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Aristotle characterizes the polis as “a community (koinonia) of house­ holds and clans for the sake of a complete (teleia) and self-sufficient life, for living well.”11 There are three more specific ends or goods that draw human beings into the construction and maintenance of political community: first a natural sociality, that is, a desire to live together; second, the necessity of cooperative life and activity for the establishment and maintenance of a com­ mon advantage (to koinē sumpheron), which is “noble living” (zēn kalōs); and third, the desire for mere life.12 The city then has four important aspects. It is first a community, literally, a thing shared or common.13 There is an abstract sense to the notion of community that serves to emphasize that the community in question is not simply a community or association understood as an entity, but, as John Finnis has written, “as community or association, an ongoing state of affairs, a sharing of life or of action or of interests, an associating or coming together.”14 Second, the city has a specific territory generally and urban center with a defined periphery of cultivated country­ side, which provided its economic basis.15 Third, the city is a “complete” or “perfect” community, that is, self-sufficient in that it contains or facilitates provision everything necessary for the flourishing of its inhabitants.16 Finally, the city is for the sake of living well or nobly, which is also called the com­ mon advantage or common good of the citizens.17 Perhaps the most characteristic and distinctive concept in classical political philosophy is that of constitution or (better) regime (politeia). The great ques­ tion for both Plato and Aristotle was that of the best regime and all regimes were answers to the question of who should rule and to what end. Regime indi­ cates the form of government, but this is a rich notion. Aristotle characterizes regime in three different but closely connected ways. It is first the order (taxis) in a city,18 especially its order of ruling offices (archai).19 But Aristotle also iden­ tifies it with the city’s “way of life” (bios).20 Regime thus goes beyond the struc­ tural features of government and describes also what we might call the ethos or culture of a political community. The pervasive ordering influence of regime is indicated by Aristotle’s illustrations of the way it influences not only the laws of the city, but also education, which should be determined with a view to the regime’s values and its preservation, and even the character of the family.21 Aristotle provides a famous scheme of classification for regimes based on the size and character of the ruling class and its aims. A city can be ruled by one, a few, or many, who aim either at the common advantage or merely their own.22 The three aiming at the common good are “correct” (orthos); those aiming at only the good of the rulers are “deviations” (parekbasis). He describes, then, pairs of regimes: kingship is correct, tyranny a deviation; aristocracy is correct; oligarchy a deviation. When one comes to the rule of the many, we see an obvious problem. Aristotle calls the deviant regime “democracy,” the rule of the many for their own good, against the common advantage. The correct regime has no distinct name, but is given the name of the genus, “regime” (politeia). The numerical part of the scheme is only partial, however, for Aristotle also tells us that by the “few” he means either

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(in aristocracy) the virtuous or (in oligarchy) the wealthy, and by “many” he means the poor. Democracy then is rule by and for the poor. But a correct regime governed by the many is in fact a fusion of oligarchy and democ­ racy, a compromise of the rich and the poor. About the details of these two regimes, we will say more below. For now, it is important simply to notice the problems entailed by Aristotle’s scheme, and, more importantly, to look more closely at the relationship between regime and citizenship. Citizenship is intimately connected to regime: indeed, the word politeia was probably derived from politēs, “citizen.” The term seems first to have been used in Herodotus’s history and originally indicated the principle of citi­ zenship in a city.23 A citizen is one who has a share in government or, as was sometimes said, one who “shares in the regime.”24 Aristotle proposes a kind of ideal typical account of citizenship comprised of two elements: (a) sharing in judgment and rule; and (b) ruling and being ruled in turn. I will discuss the details of this conception below. Importantly, Aristotle himself identifies his focal conception of citizenship as democratic.25 Why might this be? Aristotle characterizes human beings as rational and political animals: they act for reasons, and they live in community. Communities must be gov­ erned, and as human communities, governed according to reason. Whose reason? Why would it not be the reason of everyone in the community—pro­ vided such a thing were possible, for example, in a relatively small city? This suggests democracy as a kind of obvious default arrangement for human community, even if some important consideration made another arrange­ ment preferable, even most of the time.26 Such considerations can lead one to think of democracy as the, as it were, natural regime, and democratic politics as politics par excellence, as distinct from something more like paternity or mere administration. The city, then, is the natural habit of human beings, beings who act for reasons and who organize their common life according to reason. The most important fact about a city is its regime. The regime explains how a city is governed, but also informs and expresses the ethos of a city, its way of life. The regime determines who counts politically, who has a real share in the city’s government. There are a finite number of ideal types of regimes, but Aristotle chooses to explain citizenship by reference to one of them, democ­ racy. The considerations adduced above about why this must reckon with the most obvious characteristic of Aristotle’s classification of regimes: his placement of democracy among the deviant types and his characterization of it as a regime that aims not at the common advantage, but rather at the private advantage of the many. We must therefore turn to the details of his understanding of democracy and its characteristic defects. 2 Aristotle on and against democracy Democracy is the rule of the Demos, of the many, primarily the poor. There are a number of types of democracy, as there are of other basic regime types,27

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nevertheless, there are 11 signature features of democracy that Aristotle enu­ merates: all citizens are eligible for office; citizens each rule and are ruled in turn; all offices are filled by lot, or at least the most important ones that do not require some experience or special skill; there are no or very small property qualifications for citizenship; offices are term limited, excepting those offices that concern warfare; terms of office are short (in fact, this usually meant one year); courts were also staffed from among all the citizens, especially those with jurisdiction over the most important matters; the Assembly (of all citizens) has most control; pay for service; association with poverty and vulgarity (the lower classes); no offices with life terms (or in cases of offices of this type left from earlier times, the offices have largely been stripped of real power).28 This arrangement of features describes Athenian democracy quite well and many of them could be found in other democracies, although our knowledge of other Greek democracies is limited.29 Beneath this catalogue of features, Aristotle identifies the democratic “pre­ supposition” (hupothesis) as freedom (eleutheria).30 This may seem some­ what surprising; one might have expected the presupposition to be equality. But equality and freedom turn out to be closely related to one another. Aris­ totle distinguishes two aspects of freedom that jointly constitute the presup­ position. First, freedom means that democratic citizens rule and are ruled in turn. No one or few citizens is better qualified to rule than others. With respect to political judgment, the presupposition holds that citizens are equal in a numerical sense (arithmon).31 This recalls Aristotle’s discussion of the difference between distributive and corrective justice in the fifth book of the Nicomachean Ethics: distributive justice, he says there, is geometrical or pro­ portionate and varies by regime, since distributions are made with an eye to the specific character of the regime: in an oligarchy, the wealthy claim more; in an aristocracy, the virtuous. With corrective justice, however, which is mainly concerned with righting wrongs, injuries, and losses, equality is numerical and does not vary with the regime or one’s place in it. In democ­ racy, however, the claim to citizenship is grounded simply in free birth and is, even in the case of distributive justice, numerical.32 In a democracy Bentham’s dictum holds universally: everyone counts for one and no one for more than one. If everyone is equal, then majority rule is the appropriate decision rule and if most persons are (relatively) poor, then the democratic presupposition leads to the rule of the poor. This was certainly how it worked in classi­ cal Greece (although Aristotle was aware that per impossibile circumstances might make things otherwise33). The second aspect of freedom is that one can live as one likes.34 Freedom here means not being a slave. It is the birthright of a freeborn man not to be ruled. In private life, this does mean a kind of negative liberty; in public life, it means ruling oneself, although, since this is a practical impossibility if one lives with others, one accepts the second-best arrangement that one either rules or is ruled in turn. No one simply rules; no one simply is ruled. This

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defines the city as a “community of the free.”35 The 11 features of democracy canvased above follow directly from this notion of freedom. However, Aris­ totle also considers democracy to be incorrect. How so? The ground of much of Aristotle’s case against democracy is a function of his positive view of political authority. The best titles to rule are educa­ tion and virtue, particularly in those who hold specific ruling offices.36 The distinguishing feature of the correct regimes is directedness to the common advantage or common good of the city, where the deviant forms aim at only the private good of the rulers themselves. Democracy seems to fail both of these tests, and this in five specific respects. First, and perhaps most important, democracy is defined as aiming at the wrong end.37 Its fundamental claim, that the poor should rule, puts the whole city at the service of a part.38 Democracy, therefore, straightforwardly fails the second of Aristotle’s tests. Second, it also fails the first test, since Aristotle holds that the many are not qualified to rule: they are, by-in-large, not virtuous; rather, they tend to live according to passion and obey the law more out of fear than shame.39 In particular, the poor, tend to think of political rule as despotic, and, when empowered, to act despotically.40 Similarly, just because they are poor, they are tempted by and often accede to injustice. The poor also lack education. Those who must work in order to live, especially those whose work consists of physical labor, lack the time or resources to acquire education and so are simply unfit for citizenship and should be excluded from it.41 The many also lack specific knowledge about the things about which citizens must deliber­ ate.42 Indeed, Aristotle thinks that in democracies that do allow citizenship to the poor, their non-participation, a function of their need to work every day, is fortunate. The other three criticisms are interrelated. First, the empowered poor work to dispossess the rich and redistribute their wealth among themselves, which damages the economy and thus the well-being of the city generally.43 The many do not respect property rights, nor do they respect the rule of law, which they undermine by ruling largely by decree.44 Here Aristotle alludes to the distinction between nomos and psēphisma: the latter were statutes in the usual sense, which were general in form and, once adopted, somewhat diffi­ cult to change. Decrees were easy to pass by majority rule and could concern quite particular things.45 This process led to a more general undermining of the rule of law in favor of the whims of the popular majorities (and passions) of the moment. All of these things led Aristotle to the more general view that democracy was prone to a kind of dynamic of decay that led to fragmenta­ tion and disorder. He thought this particularly of a type of democracy that he distinguished as the “last,” “complete,” or “final” democracy in which any free person, no matter how vicious or ignorant, could participate, and which was characterized by undisciplined collective self-gratification, one that we might call end-stage democracy.46 Aristotle’s thoughts on democracy

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are, however, not exhausted by the very negative sketch given above, nor was his characterization of democratic politics as accurate as it might have been. 3 Aristotle and Greek democracy: a more complicated picture Here I want to focus on four complications in Aristotle’s picture of democ­ racy. First, he himself advances reasons why democracy may be better than the characterization discussed above would suggest; second, Aristotle’s notion of citizenship is essentially a notion of democratic citizenship; third, the generic regime that is the good counterpart to democracy in Aristotle’s regime clas­ sification is really itself a kind of moderate democracy; and fourth, I want to look at modern scholarly assessments of Aristotle’s criticisms of democracy that question their accuracy. Taken together, these things not only complicate an otherwise straightforward view of Aristotle as an anti-democrat, but more positively suggest where we might find some resources in Greek democracy that may help us today. 3.1 The wisdom of the multitude

Aristotle actually judged the claims of all the regimes to be partial and, there­ fore, unsatisfactory in some respect. He suggests that looking more care­ fully at what a city is might shed some light on the dispute among them. He famously rejects the proto-contractarian view proposed by some of the sophists, holding that a city must be understood on the model of friendship and concern itself with the character of citizens. The city aims to be a com­ munity or sharing in a good life of noble deeds. This suggests that it is virtue that has the best claim, and that aristocracy is the best regime. But Aristotle backtracks a bit in chapter  11 of book 3 and reconsiders the claim of the many, which he dismissed earlier as simply the claim of the ignorant poor. The claim of the many “perhaps might have some truth.”47 He presents an argument for the many within which we can distinguish both a positive and a negative part. The first part of the argument, sometimes called the “summation argu­ ment,” is stated thus: For the many, each of whom is not a serious (spoudaios) man, never­ theless could, when they have come together, be better than those few best—not, indeed, individually but as a whole, just as meals furnished collectively are better than meals furnished at one person’s expense. For each of them, though many, could have a part of virtue and prudence, and just as they could, when joined together in a multitude, become one human being with many feet, hands, and senses, so also could they become one in character and thought. That is why the many are better judges of the works of music and the poets, for one of them judges one part and another another and all of them the whole.48

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About this argument, two things deserve our notice: first, Waldron is correct to reject the notion of “summation” as an accurate rendering of what the argument describes. It is not simply an aggregation of opinions. Waldron stresses that it necessarily involved deliberation, which suggests a dynamic process.49 But also, and more obvious in the text, the crucial feature is a kind of mixing that cancels out the bad qualities of the many, which are more obvious individually. Now one might ask whether that same mixing negates or reduces some of the excellence of the few. This is anticipated, I think, by the second part of the argument, so we shall return to it below. Beyond this, however, the passage suggests another reason to reject the idea of mere sum­ mation: the relationship of the individual to the many as a political multitude is described in terms of parts and wholes, which suggests an internal order that goes beyond mere aggregation. The second thing to notice is that not just any multitude would necessarily produce the good effects Aristotle describes, but only multitudes with the right sort of character. That feature points to Aristotle’s account of the generic regime, so we will return to that point as well.50 The second part of the argument is negative, emphasizing at once both the limits of the first part and a different reason to include the multitude. The limitation is seen in his explicit statement that not any multitude can govern. But he also reaffirms the negative things he has said about the many before by mentioning their tendency toward injustice and unwisdom (adikia kai aphrosunē), qualities that make allowing them to serve in the city’s greatest offices unsafe. But he adds: [i]f, on the other hand, they were given no share and had no participa­ tion in office, it would be cause for alarm, since the city that has many in it who lack honor and are poor must of necessity be full of enemies.51 Perhaps this second negative argument is intended to sway the oligarch (or aristocrat) tempted to shut the many completely out of the city’s business. One who denies the wisdom of the multitude might accept more narrowly political considerations. To the argument that the participation of the igno­ rant and unjust many will only dilute the city’s level of overall excellence, this second argument cautions that exclusion too is risky: dilution of the best claims may serve the larger political good. But how to allow for widespread participation, and therefore loyalty, without endangering the city’s good? Aristotle suggests that the many be allowed to participate in “deliberation and judgment” (bouleuesthai kai krinein), that is, that they play a role in the selection of the highest officials and hold them to account through a formal audit, but not in holding those offices themselves. Aristotle then considers two closely related objections to his argument for the many. First, one might object that only experts are qualified to judge experts. Aristotle’s reply is that, so long as the multitude is not slavish, while each separately may well be an inferior judge, the whole body may judge

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well. Moreover, some arts are best judged not by the artist, but by the user, as the quality of a house may best be judged by the one who must live in it.52 The second objection, considering the specific mode of participation Aristotle had suggested above, points to the seeming oddness of holding that inferior persons should have control over greater things than their betters, that is the processes of election and auditing. Here again, Aristotle emphasizes the qualities of the whole over even inferior parts.53 Chapter 11 concludes with what may seem a kind of reassurance for the oligarch still wary of the case for the many: the laws should rule most things and that officials should con­ trol matters that the laws are incapable of settling because of details law can­ not adequately specify or anticipate.54 Nothing that Aristotle says in chapter  11 could make one read him as a passionate democrat. Nevertheless, it does considerably complicate the notion that he is a passionate anti-democrat. One must, I think, attend not just to the content of the chapter, but to its rhetoric, which seems carefully calibrated to work on those inclined simply to reject democracy. The positive argument is the boldest part of the discussion because it seems to suggest that a regime that includes the many may be qualitatively superior to one that does not. The negative argument appeals to reasonable fears of the dangers of faction, and urges that allowing the many a limited role may not be abso­ lutely superior, but relatively safer, suggesting the limits in the absolute qual­ ity of a city imposed by the concomitant need for unity and internal peace. The ending of the chapter seems aimed at limiting the claims of partisans of all the regimes by emphasizing the importance of the rule of law. 3.2 Citizenship

Aristotle’s conception of citizenship is at once substantive and essentially democratic, a point he states explicitly.55 A citizen is one who has a share in the regime56 and a commitment to its preservation.57 More specifically, the citizen participates in “judgment and rule” (krisis kai archē).58 Most impor­ tantly, and most generally, citizens share in “ruling and being ruled.”59 Judg­ ment and rule were the functions in Athens of the main court, which was filled by lot from all citizens, and the Assembly composed of all the citizens. They were the two most powerful political bodies in the city, although their authority was limited in various ways, and they coexisted with various mag­ istracies, although most of those were chosen by lot. The actual level of political participation in Athens varied. Many people chose to take no part or found the cost of participation too high. Neverthe­ less, quite a large number of people did take an active role in politics at least during some part of their lives. The Assembly, which included all full citizens would have had a potential membership of about 30,000. There was a quo­ rum of 6,000 for the conduct of the most important business and that was probably roughly the number of attendees at many meetings. R.K. Sinclair estimated that in any decade, about one-fourth of the citizen body would

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have been chosen to serve in the Council, which set the Assembly’s agenda and performed some other higher deliberative tasks. In addition to this, there were literally hundreds of public offices, most with on-year terms, so a quite sizable part of the citizen body would have served in some public office dur­ ing a lifetime.60 Athenian citizenship—and there is no reason to think it was much different in any other democracy—was active citizenship. That Aristo­ tle’s general conception of citizenship is essentially this one suggests, again, a sense in which democracy represents a kind of degree zero for politics as such, even if the actual multitude fails to live up to it. 3.3 The generic regime

The correct version of the regime in which the many are said to rule has no name of its own, but rather the name of the genus, “regime” (politeia).61 The practice of naming some species for its genus typically reflects a priority in that genus and, in this case, might lead us to see the generic regime as the best regime, but Kevin Cherry has argued convincingly against this conclu­ sion, holding that the generic regime should be seen rather as the best practi­ cal regime.62 Certainly, the greatest obstacle to seeing the generic regime as simply best is that Aristotle repeatedly describes it as a fusion of two regimes, oligarchy and democracy, that are deviant.63 The simply best regime is one established on the basis of preconditions “for which one would pray.”64 The basis of the generic regime is a combination of what were, in fact, according to Aristotle, the two most common regimes, oligarchy and democracy.65 The character of the particular mixture is also important, since sometimes the generic regime can look more like a oligarchy and other times more like a kind of democracy.66 Beyond the most general description of the generic regime as correct and a fusion of oligarchy and democracy, there are three other distinctive features. First, Aristotle identifies the multitude that rules in the generic regime with “those who possess arms.”67 Part of the reason for this is that the many, who Aristotle often denigrates as without virtue, can achieve perfection in military virtue.68 This is presumably because military virtue represents a lower level of virtue, as courage is the lowest of the most important moral virtues. But it also seems to be related to a second feature of the generic regime, the domi­ nance in it of the middle class. The middle class is free of the temptations to arrogance common among the wealthy and the temptation to financial cor­ ruption common among the poor.69 Aristotle also holds that the middle class is also more disposed (perhaps because of their relative freedom from these particular temptations) to follow reason. This leads him to a third related feature: the middle class, because more amenable to reason, is more likely to obey the law and so allow the law to rule.70 About these features of the generic regime, we need to notice three other things. First, the fact that this regime is called by the name of the genus may suggest, if not the best regime, that it indicates something or reveals

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something about the political as such. This may be related to its status as a kind of best practical regime, practical precisely because most cities are, as we have already noted, either democracies or aristocracies, and this because the rich and the poor are perennial parts of any human community of any size. Political life is often constituted by compromise between just these two groups and so they reveal constitutive elements of political life as such. How­ ever, as a second point, we must recall the claim that the middle class is most disposed to follow reason and law. In this respect, the generic regime may manage to transcend the limits of mere compromise between rich and poor. If so, it mitigates the limitations of the various claims to rule by factions; nev­ ertheless, it tilts toward the many and this is why it is the “correct” version of their rule. Third, one should notice again the military aspect of the generic regime. This emphasizes the need for active citizenship, but also reinforces the importance of the middle class. In classical Greece, the hoplites or heavy infantry were drawn from the middle class, which could afford the expense of the standard panoply. The poor were associated with the navy, since they needed to supply nothing beyond the physical strength to pull an oar. Given the great expense of horses and their equipment, the cavalry was drawn from the wealthy. The generic regime then is characterized by mixture, a mixture of the empirically prevalent socioeconomic classes in the city that allowed for sub­ stantive participation by the many, but under the constraints of the rule of law. Like all the regimes, the pure type could take many particular forms, and often these would likely have looked like moderate democracies. They certainly would be compatible with the argument for the multitude that Aris­ totle considered in Politics 3.11. 3.4 The limits of Aristotle’s account

As a final complicating aspect of Aristotle’s portrait of democracy, I will note some ways in which modern students of Greek (especially Athenian) democ­ racy have seen that account as inaccurate, focusing on the five criticisms summarized above. The first and most fundamental of Aristotle’s criticisms was that democ­ racy is directed to the wrong end; since it is rule by the poor for their own private good, it is rule by a faction and no true regime. How one reacts to this criticism depends on what one includes under the heading of democ­ racy, especially given how we understand democracy today. Aristotle himself acknowledged that there were better and worse variants of democracy, but, most important, the generic regime, which is a correct regime, can look like a kind of democracy. It is fundamentally a mixed regime that blends the claims of the rich and the poor, but the participation in it of the many gives it a democratic character. It is important in this respect that recent scholarship on Athenian democracy has emphasized that in practice democracy was not

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simply a tyranny of the lowest classes. There was heavy and often decisive leadership exercised by the well-off. Athens was a democracy led by elites.71 The second major criticism, one made almost unanimously by philoso­ phers, was that the many were not qualified to rule because of their lack of education and virtue. The answer to the first point is relevant again here, since Aristotle himself recognized that the generic regime could look like a kind of democracy. Assuming the many are uneducated and not virtuous, they participate in the selection of the council and ruling magistrates as well as their audits, but they do not fill those offices. Beyond this, there is an additional point that Aristotle makes, but that is also relevant to contempo­ rary democracy. Aristotle said that certain multitudes were up to participa­ tion in democracy, that is, he admitted that there were populations where the many were more educated and manifested better overall character. This seems important to keep in mind in thinking about modern democracy, espe­ cially in the developed world. The populations, even the lower classes, of developed democracies are vastly better educated than the Demos of fourthcentury Athens would have been. The high literacy rates alone of modern societies fit their populations for sharing in political rule in a way that would have seemed extraordinary to an ancient aristocrat. Here the democratic pre­ supposition is more reasonable in our own time. Third, Aristotle posited a tendency toward disorder and fragmentation, especially in the “extreme” or “last” democracy. It is far from clear how many such regimes Aristotle thought there were. Athens certainly was not like this. Rather soon after the oligarchic coup that followed its defeat in the Peloponnesian War, democracy was restored and remained quite stable until Athens lost its political liberty to the Macedonian Empire. Most modern historians reject the notion that democracy led to political decay in Athens.72 Recall as a fourth criticism Aristotle’s argument that in a democracy the poor would dispossess the wealthy, redistributing their wealth among them­ selves, thereby setting the city’s economy on a path to ruin. Nothing like this happened in Athens. Even in its most democratic periods, property rights were largely respected and there were no large-scale confiscatory redistribu­ tions.73 Indeed, Athenian fiscal policies seem to have become even more mod­ erate in the fourth century.74 This suggests that the people were not nearly as venal and imprudent as opponents of democracy thought. A similar, fifth point concerns the alleged democratic tendency to under­ mine the rule of law. Aristotle holds that the many often rule outside the law through decrees. Here scholars have pointed out that policymaking by decree was not necessarily opposed to the rule of law, but usually complimentary to it. Passing decrees did not entail violating the law, and, in fact lawmaking was a complicated and difficult business in classical Athens; it could not be done easily or lightly. Moreover, politicians who tried to use the legislative process in ways that did not respect existing laws risked a particular kind of prosecu­ tion. The Athenians, at any rate, seemed quite protective of their laws.75

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Looked at in this light, Aristotle’s picture of democracy seems much darker than the historical evidence. Can this be explained? Some scholars have argued that the Greek political philosophers, all of whom were in some serious respects critics of democracy, were motivated by class bias or by membership in a critical circle of anti-democratic intellectuals.76 Barry Strauss, after cataloguing various inaccuracies in Aristotle’s account, suggests more plausibly that Aristotle exaggerated democracy’s defects as part of a rhetorical strategy aimed at influencing the young aristocrats who populated his classroom.77 Both hypotheses reflect possible limits on Aristotle’s picture of democracy, but even more important are the limits that stem from the time Aristotle lived in, not as limits on what he may have thought or how he may have chosen to express himself, but on the possibilities of political life itself and on the possibility of popular government constrained by the economic, social, and moral character of the time. Those limits are not ours. Conclusion: a usable past? There remains a major obstacle to any modern appeal to “the Aristotelian polis tradition,” one to which I have alluded and that probably influenced Ernst-Wolfgang Böckenförde; it has certainly seemed decisive to others.78 I  refer to the vast differences between the classical polis and the modern state that includes the scale of modern societies integrally related to modern science and technology as well as the emergence of a complex civil society. Direct participatory democracy, collegial magistracies with brief terms, elec­ tion by lot (beyond juries) are impossible for us. The basis (there can be no more here) for a response to this can be sketched in two parts. First, the most valuable classical ideas that emerge from my account are the very notion of self-government, the democratic conception of citizenship, and the necessity of moderating claims to rule, and they are independent of the specific institutions and practices of classical polis democracy. Indeed, those ideas as refined by Aristotle’s discussion, already go beyond particular classical forms. Those three values can and must take distinctive modern shapes. What kind? We can begin to answer that question by recalling Aristotle’s discussion of the nature of the polis as prelude to his critical evaluation of the claims to rule associated with the various regimes. He contrasted a community modeled on friendship to one modeled on a contract, an idea suggested by some of the sophists that anticipated elements of modern liberalism. Aristotle referred to a community of that kind as more like an “alliance” than a city, limited to protecting citizens from crime and external enemies and facilitating their commercial relationships, but little more.79 One might think of the modern state as just such a community, but one should not. The persistence of patri­ otism and the sense among citizens of liberal democracies that they continue to share a common future, even with today’s polarization, suggest that mod­ ern states can be something between a “true city” and a mere alliance. Some

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of the very tumult that has caused doubts about the future of democracy associated with, for example, the limits of economic globalization, testifies to the continuing attraction of self-government. The preservation of selfgovernment, however, requires active citizenship and moderation. Moreover, the levels of material well-being and widespread education made possible by the dynamic economies and technological achievements of modern societies make widespread political participation possible and salutary in a way they were not for most of human history. Just one implication that I think follows from the application of these ideas to our circumstances is that more political decisions need to be taken locally in ways that maximize democratic participation and the knowledge that citi­ zens can have of one another. We cannot be face-to-face societies like Greek poleis, but we can be more like them to the extent that more is decided locally. The effects of this will necessarily be reflected at the higher levels of state politics. Aristotle’s description of the generic regime is suggestive of the pos­ sibilities of levels of democratic participation from the local to the national. Moreover, his characterization of the people of the generic regime as those who bear arms may be a basis for securing the internal bonds of local commu­ nities and national unity through some kind of revived obligation of national service that could take different forms; such service would certainly concretize the notion of sharing in the regime, and would underwrite continued patriot­ ism and promote the mutual knowledge of the citizens of diverse parts of the nation in ways that promote moderation.80 These are only the barest outlines of a more classical democratic ethos with application to modern state politics. Finally, when thinking about the differences between ancient and modern democracy, one should not forget Aristotle’s discussion of the basic presup­ position of democracy: freedom. The positive element of freedom, that one rules and is ruled in turn, was at the core of the notion of self-government, integral to citizenship, and encouraged moderation, since one must keep in mind during the time that one (or one’s party) rules that a time will come when one is ruled. The negative element of freedom, that one lives as one likes, was, of course, not liberal individualism of the kind emphasized by contemporary critics of liberal democracy and even by Ernst-Wolfgang Böck­ enförde. It suggested a different kind of self-government consistent with the ideal of human beings as rational and political animals capable of and responsible for sharing laws and offices with a view to noble common life. A different kind of response by some European thinkers to the Böcken­ förde Dilemma has considered the adoption of a kind of Christian civil reli­ gion to restore liberal democracy’s missing moral center. There are Christian theological reasons to be wary of such a project.81 A re-Christianization of the West must be the authentic fruit of a new evangelization undertaken for its own sake and not for the sake of any (possibly very good) political conse­ quences it might have.82 The Aristotelian and classical Greek resources I have discussed are no substitute for Christianity. They suggest political possibili­ ties internal to political life itself.

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Notes 1 See, for example, Edward Luce, The Retreat of Western Liberalism (New York: Atlantic Monthly Press, 2017); Larry Diamond, Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency (New York: Penguin, 2019); Anne Applebaum, Twilight of Democracy: The Seductive Lure of Authoritarianism (New York: Doubleday, 2020); and most importantly, Francis Fukuyama, Liberalism and Its Discontents (New York: Farrar, Straus, and Gir­ oux, 2022). 2 As I write this, Vladimir Putin’s Russia is bogged down in what is widely thought to be an unjust and unwinnable war of conquest in Ukraine; Xi Jinping’s China is grappling with the aftermath of a disastrous zero-covid policy, its even more dis­ astrous one-child policy, and a collapsing “Belt and Road” initiative; and Shiite Islamist Iran is attempting to quell widespread political unrest. 3 Ernst-Wolfgang Böckenförde, “The Rise of the State as a Process of Seculariza­ tion” [1967], in Religion, Law, and Democracy: Selected Writings, ed. Mirjam Künkler and Tine Stein (Oxford: Oxford University Press, 2020), 167. (Emphasis in the original.) 4 Ibid. A similar argument has been made on this point by Pierre Manent, Natural Law and Human Rights: Towards a Recovery of Practical Reason, trans. Ralph C. Hancock (Notre Dame, IN: University of Notre Dame Press, 2020). 5 Böckenförde, ibid. 6 A number of more recent treatments of Aristotle have seen his thought as far more complicated on the topic of democracy than has often been thought: see, for example, Mary P. Nichols, Citizens and Statesmen: A Study of Aristotle’s “Poli­ tics” (Savage, MD: Rowman and Littlefield, 1992); Jill Frank, A Democracy of Distinction: Aristotle and the Work of Politics (Chicago, IL: University of Chi­ cago Press, 2005). 7 Nicomachean Ethics 1181b15. 8 Nicomachean Ethics 1094a26–28 (on politikē); Nicomachean Ethics 1097b11, 1169b18–19; Politics 1253a2–3, 1278b19; cf. Eudemian Ethics 1242a22 (on political animals). 9 Politics 1253a9–10; and see De Anima 433a11–12; Metaphysics 980b26–27. Neither characterization need be seen as a definition in the strict sense: Christian Kietzmann, “Aristotle on the Definition of What It Is to Be Human,” in Aristotle’s Anthropology, ed. Geert Keil and Nora Kreft (Cambridge: Cambridge University Press, 2019), 25–43. 10 Politics 1252a24–1253a39. Jean-Pierre Vernant, The Origins of Greek Thought (Ithaca, NY: Cornell University Press, 1982) gives a similar sort of account. 11 Politics 1280b33–35. 12 Politics 1278b17–27. 13 Politics 1252a7, b28, 1276b2, 1280b33–35, 1280b40–1281a1. 14 Natural Law and Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), 135. 15 Politics 1260b41–1261a1. On this aspect of the Greek polis, see Robin Osborne, Classical Landscape with Figures: The Ancient City and Its Countryside (London: George Philip, 1987). 16 Nicomachean Ethics 1134a26–31; Politics 1252b29, 1261b14, 1275b20–21, 1291a10, 1321b17, 1326b3, 8–9, 23–24, 27–30, 1328b18, and cf. 1257a30. 17 Politics 1252b30, 1283a24–25, 1328a35–37, and cf. 1256b32. 18 Politics 1274b38. 19 Politics 1278b8–11, 1289a15–20, 1290a7–8. 20 Politics 1295b1, and cf. 1308b20–24, 1323a14–23, 1328a41-b2.

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21 On law: Politics 1282b8–13, 1289a13–15, 1310a14–19, 1319b37–1320a2; on the family: Nicomachean Ethics 1160a31–1161a9; on education: Politics 1260b8–18, 1310a12, 1337a11. 22 Politics 1279a28–31. 23 Jacqueline Bordes, “Politeia” dans la pensée grecque jusqu’a Aristote (Paris: Les Belles Lettres, 1982). 24 See Malcolm Schofield, “Sharing in the Constitution,” in Saving the City: Philoso­ pher-Kings and Other Classical Paradigms (London: Routledge, 1999), 141–159, 218–223. The connection of regime and citizenship is a subject of controversy among scholars, since Aristotle’s account suggests that actual citizenship is a monopoly of the ruling group that defines each regime. Thus, in an oligarchy only the wealthy are citizens, in an aristocracy only the virtuous, and in a monarchy only the monarch. This seems quite odd, and so it seems likely that Aristotle’s account assumed degrees of citizenship in all regimes, with some person pos­ sessing a plenum of citizen rights and others possessing a lesser compliment. See Donald Morrison, “Aristotle’s Definition of Citizenship: A  Problem and Some Solutions,” History of Philosophy Quarterly 16 (1999): 143–165. 25 Politics 1275b5–6. 26 This is how later scholastic thinkers interpreted Aquinas’s seemingly Aristotelian position on the matter: Summa theologiae, 1a2ae, q. 90, a. 3c.; and discussion in Heinrich Rommen, The State in Catholic Thought: A Treatise in Political Philoso­ phy (St. Louis, MO: B. Herder, 1947), 444–450; and Yves R. Simon, Philosophy of Democratic Government (Chicago, IL: University of Chicago Press, 1951), 158–176. 27 Politics 1216b36–1317a40. 28 Politics 1317b17–1318a3. 29 See especially David Stockton, The Classical Athenian Democracy (Oxford: Oxford University Press, 1990); and Eric W. Robinson, Democracy beyond Ath­ ens: Popular Government in the Greek Classical Age (Cambridge: Cambridge University Press, 2011). Robinson discusses 54 classical Greek democracies. 30 Politics 1317a40–41. 31 Politics 1317b4. 32 Nicomachean Ethics 1131a24–1132a6. 33 Politics 1279b20–1280a7. 34 Politics 1317b11–12. 35 Politics 1279a21. 36 Politics 1283a24–25, 1260a17–20. 37 Politics 1279b8–10, 1289a28, 1289b4–5, 1309b19–21. 38 Politics 1280a7–25. 39 Nicomachean Ethics 1179b11–18; Politics 1267b1–5, 1319b31–32. 40 Politics 1324b32–36. 41 Politics 1277b33–1278a13. 42 Politics 1281b27, 1282a7–14. 43 Politics 1281a14–24, 1309b38–1310a2, 1318a25–26. 44 Politics 1292a4–37, and cf. 1293a10, 1298b14–15. 45 See David Stockton, The Classical Athenian Democracy, 77–78; S. C. Todd, The Shape of Athenian Law (Oxford: Clarendon Press, 1993), 18–19, 55–60, 294–295. 46 See Politics 1293a33–34, 1298a31, 1312b35–36, 1313b32–33, 1319b1–33, 1320b17, 31. 47 Politics 1281a41–42. 48 Politics 1281a42-b10. The translation is that of Peter L. Phillips Simpson, The Politics of Aristotle (Chapel Hill: University of North Carolina Press, 1997).

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49 Jeremy Waldron, “The Wisdom of the Multitude: Some Reflections on Book 3, Chapter 11 of Aristotle’s Politics,” Political Theory 23 (1995): 567–571. 50 See Politics 1281b15–18, 1282a15–16; and discussion in Kevin M. Cherry, “Aris­ totle’s ‘Certain Kind of Multitude,’ ” Political Theory 43 (2015): 185–207. 51 Politics 1281b25–31. 52 Politics 1282a14–23. 53 Politics 1282a33–41. 54 Politics 1282a41-b6. 55 Politics 1275b5–6. 56 Politics 1332a33–34, and see 1260b20, 1261a1. 57 Politics 1276b28–29; cf. 1281b31. 58 Politics 1275a23, b18–20. 59 Politics 1283b42–1284a1; and cf. 1261b4–5, 1333a11–12. 60 See Sinclair, Democracy and Participation in Athens, 106–135, 191–196. 61 Politics 1279a38–39, 1293a40. 62 See Politics 1288b37–39 with 1289b14–15, 1295a25–34, and Kevin M. Cherry, “The Problem of Polity: Political Participation and Aristotle’s Best Regime,” Jour­ nal of Politics 71 (2009): 1406–1421. 63 Politics 1265b27–28, 1293b33–34, 1307a7–9. 64 Politics 1260b29, 1265a18, 1288b23, 1295a29, 1325b36, 39, 1327a4, 1330a25– 26, 1331b21–22. 65 Politics 1290a13–16, 1291b6–13, 1296a22–23, 1301b39–40. 66 Politics 1320b21–22, 1290a17–18, 1297b24–25, and cf. 1307a15–16, 1317a3. 67 Politics 1288a13, 1297b12–28; cf. 1265b26–29. 68 Politics 1279a37-b4. 69 Politics 1295a34-b12, 1306b11. 70 Politics 1288a13–14. 71 Sinclair, Democracy and Participation in Athens, 47–48, 110–112, 121–123; Barry Strauss, “On Aristotle’s Critique of Athenian Democracy,” in Essays on the Foundations of Aristotelian Political Science, ed. Carnes Lord and David K. O’Connor (Berkeley: University of California Press, 1991), 224–225. 72 See especially Strauss, “On Aristotle’s Critique,” 219–223; Mogen Herman Hansen, The Athenian Democracy in the Age of Demosthenes, trans. J. A. Cook (Oxford: Blackwell, 1991), 296–320. 73 Hansen, Was Athens a Democracy? Popular Rule, Liberty and Equality in Ancient and Modern Thought, Historisk-filosofiske Meddelelser 59 (Copenhagen: Royal Danish Academy of Sciences and Letters, 1989), 21; Sinclair, Democracy and Participation in Athens, 208; Strauss, “On Aristotle’s Critique,” 220–221, 224; Robinson, Democracy beyond Athens, 225–226. 74 Sinclair, Democracy and Participation in Athens, 212–213. 75 Strauss, “On Aristotle’s Critique,” 228; Sinclair, Democracy and Participation in Athens, 207. 76 Ellen Meiksins Wood and Neal Wood, Class Ideology and Ancient Political The­ ory: Socrates, Plato, and Aristotle in Social Context (New York: Oxford Univer­ sity Press, 1978); Josiah Ober, Political Dissent in Democratic Athens: Intellectual Critics of Popular Rule (Princeton, NJ: Princeton University Press, 1998). 77 Strauss, “On Aristotle’s Critique,” 231–232. 78 Stephen Taylor Holmes, “Aristippus in and out of Athens,” American Political Science Review 73 (1979): 113–128. 79 Politics 1280a25–1281a11. 80 Cherry, “The Problem of Polity,” 1419–1420. 81 See Joseph Ratzinger and Marcello Pera, Without Roots: The West, Relativism, Christianity, and Islam, trans. Michael F. Moore (New York: Basic Books, 2006).

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82 On the possibilities, consider Ross Douthat’s reflections on the view of Jacques Maritain in “A Gentler Christendom,” First Things (June/July 2022): 27–34.

References Applebaum, Anne. Twilight of Democracy: The Seductive Lure of Authoritarianism. New York: Doubleday, 2020. Aquinas, Thomas. Summa Theologiae. Ottawa: Studii Generalis O. Pr., 1941. Aristotle. De Anima. Edited by W. D. Ross. Oxford: Clarendon Press, 1963a. ———. Ethica Nicomachea. Edited by Ingram Bywater. Oxford: Clarendon Press, 1963b. ———. Metaphysica. Edited by Werner Jaeger. Oxford: Clarendon Press, 1963c. ———. Politica. Edited by W. D. Ross. Oxford: Clarendon Press, 1963d. ———. Ethica Eudemia. Edited by R. R. Walzer and J. M. Mingay. Oxford: Claren­ don Press, 1991. Bökenförde, Ernst-Wolfgang. “The Rise of the State as a Process of Secularization [1967].” In Religion, Law and Democracy: Selected Writings, edited by Mirjam Künkler and Tine Stein, 152–67. Oxford: Oxford University Press, 2020. Bordes, Jacqueline. “Politeia” dans la pensée grecque jusqu’a Aristote. Paris: Les Belles Lettres, 1982. Cherry, Kevin M. “The Problem of Polity: Political Participation and Aristotle’s Best Regime.” Journal of Politics 71 (2009): 1406–21. ———. “Aristotle’s ‘Certain Kind of Multitude.’ ” Political Theory 43 (2015): 185–207. Diamond, Larry. Ill Winds: Saving Democracy from Russian Rage, Chinese Ambi­ tion, and American Complacency. New York: Penguin, 2019. Douthat, Ross. “A Gentler Christendom.” First Things (June/July 2022), 27–34. Finnis, John. Natural Law and Natural Rights. 2nd ed. Oxford: Oxford University Press, 2011. Frank, Jill. A Democracy of Distinction: Aristotle and the Work of Politics. Chicago, IL: University of Chicago Press, 2005. Fukuyama, Francis. Liberalism and Its Discontents. New York: Farrar, Straus, and Giroux, 2022. Hansen, Mogen Herman. Was Athens a Democracy? Popular Rule, Libert, and Equality in Ancient and Modern Thought. Hisorisk-filosofiske Meddelelser 59. Copenhagen: Royal Danish Academy of Sciences and Letters, 1989. ———. The Athenian Democracy in the Age of Demosthenes. Translated by J. A. Cook. Oxford: Blackwell, 1991. Holmes, Stephen Taylor. “Aristippus In and Out of Athens.” American Political Sci­ ence Review 73 (1979): 113–28. Kietzmann, Christian. “Aristotle on the Definition of What It Is to Be Human.” In Aristotle’s Anthropology, edited by Geert Keil and Nora Kreft, 25–43. Cambridge: Cambridge University Press, 2019. Luce, Edward. The Retreat of Western Liberalism. New York: Atlantic Monthly Press, 2017. Manent, Pierre. Natural Law and Human Rights: Towards a Recovery of Practical Reason. Translated by Ralph C. Hancock. Notre Dame, IN: University of Notre Dame Press, 2020.

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Morrison, Donald. “Aristotle’s Definition of Citizenship: A Problem and Some Solu­ tions.” History of Philosophy Quarterly 16 (1999): 143–65. Nicholas, Mary P. Citizens and Statesmen: A Study of Aristotle’s “Politics.” Savage, MD: Rowman & Littlefield, 1992. Ober, Josiah. Political Dissent in Democratic Athens: Intellectual Critics of Popular Rule. Princeton, NJ: Princeton University Press, 1998. Osborne, Robin. Classical Landscape with Figures: The Ancient City and Its Coun­ tryside. London: George Philip, 1987. Ratzinger, Joseph and Marcello Pera. Without Roots: The West, Relativism, Christi­ anity, and Islam. Translated by Michael F. Moore. New York: Basic Books, 2006. Robinson, Eric W. Democracy Beyond Athens: Popular Government in the Greek Classical Age. Cambridge: Cambridge University Press, 2011. Rommen, Heinrich. The State in Catholic Thought: A Treatise in Political Philoso­ phy. St. Louis, MO: B. Herder, 1947. Schofield, Malcolm. “Sharing in the Constitution.” In Saving the City: PhilosopherKings and Other Classical Paradigms, 141–59, 218–23. London: Routledge, 1999. Simon, Yves. Philosophy of Democratic Government. Chicago, IL: University of Chi­ cago Press, 1951. Simpson, Peter L. Phillips, trans. The Politics of Aristotle. Chapel Hill: University of North Carolina Press, 1997. Sinclair, R. K. Democracy and Participation in Athens. Cambridge: Cambridge Uni­ versity Press, 1988. Stockton, David. The Classical Athenian Democracy. Oxford: Oxford University Press, 1990. Strauss, Barry. “On Aristotle’s Critique of Athenian Democracy.” In Essays on the Foundations of Aristotelian Political Science, edited by Carnes Lord and David K. O’Connor, 212–33. Berkeley: University of California Press, 1991. Todd, S. C. The Shape of Athenian Law. Oxford: Clarendon Press, 1993. Vernant, Jean-Pierre. The Origins of Greek Thought. Ithaca, NY: Cornell University Press, 1982. Waldron, Jeremy. “The Wisdom of the Multitude: Some Reflections on Book 3, Chapter 11 of Aristotle’s Politics.” Political Theory 23 (1995): 563–84. Wood, Ellen Meiksins and Neal. Class Ideology and Ancient Political Theory: Socrates, Plato, and Aristotle in Social Context. New York: Oxford University Press, 1978.

15 Liberty and the good in the American founding1 Vincent Phillip Muñoz

The conviction that there is a Creator God is what gave rise to the idea of human rights, the idea of the equality of all people before the law, the recogni­ tion of the inviolability of human dignity in every single person and the aware­ ness of people’s responsibility for their actions. Our cultural memory is shaped by these rational insights. To ignore it or dismiss it as a thing of the past would be to dismember our culture totally and to rob it of its completeness. —Pope Benedict XVI (2011)2

As its title suggests, this book seeks to explore “freedom and the good” by going “beyond classical liberalism.” This particular chapter takes a some­ what different approach. It aims to explore the relationship between freedom and the good within the classical liberalism of the American founding.3 The chapter contends that the American founders and the constitutionalism they bequeathed to us are neither indifferent toward the good nor neutral toward competing conceptions of the good. The founders conceived of political lib­ erty, including protection for the inalienable natural right of religious liberty, as a demand of justice. They held, accordingly, that the security of natural rights “endowed by our Creator” is the foundation of the political common good properly understood. 1 The foundations of political authority prior to Christianity To grasp the novelty of the founders’ approach to religious and political authority, it is helpful to step back to see the larger theoretical and political problem they were attempting to solve. In the ancient polis, the authority for law originated from the gods; every law was divinely inspired. As nineteenthcentury historian Fustel de Coulanges explains in his classic, The Ancient City, no distinction existed between patriotism and piety. To be a good citi­ zen was to obey the gods, and to obey the gods meant to be a good citizen. Political rule was understood as a divine commission. A  primary political responsibility included maintaining the proper worship of the city’s gods, gods that were neither universal nor concerned with non-citizens. “State” DOI: 10.4324/9781032702766-20

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was thoroughly infused with “church,” and no element of “church” was set apart from “state.”4 Philosophers questioned this simple identification of law with divine com­ mand, as we can see from the opening lines of Plato’s Laws. The Athenian Stranger begins the dialogue by asking, “God or some human being, stran­ gers, who is given the credit for laying down your laws?” Merely to ask such a question bordered on committing an illegal act of impiety, which is reflected by the companions’ emphatic response, “A god, stranger, a god.” Only after drinking much wine and ensuring that their conversation would not be heard by the young do the companions proceed to discuss the true origins of political authority. We ought not forget that Athens put Socrates to death for his treasonous activity of teaching the young to question the existence of Athens’ gods. Although the Greek philosophers questioned this tradition, they did not end the identification of human law with the divine. Rather, Jesus’ command to give to Caesar what is Caesar’s and to God what is God’s delivered the fatal blow to the ancient polis.5 Jesus affirms that men ought to fulfill their civic obligations, but he implicitly distinguishes citizenship from piety, thus destroying the ancient city’s self-understanding. God may ordain that politi­ cal authority exists, but human law no longer carries the immediate and direct authority of divine command. In this way, the Gospels are non-political or perhaps, more accurately, transpolitical.6 The Christian is commanded to love God and to love his neighbor. The Christian, in fact, is ordered to love his enemy, a treasonous and impious command to a citizen of the classical polis. Love, not law, lies at the heart of Christianity, which means a Christian can fulfill his religious obligations in almost any political regime. Christ does not demand that his followers establish a specific form of government or even that they rule at all; the New Testament does not contain a legal code for political governance. A good Christian renders to Caesar what is Caesar’s while reserving what is God’s for God and remembering that Jesus’s kingdom is not of this world. By distinguishing human law from divine law, Christianity makes possible the separation of church and state, although it does not necessarily demand separation.7 Because Christ did not found a political regime or hand down a code of civil law, Christian political thinkers turned elsewhere for guidance. Prior to the Enlightenment, to speak very broadly, they were influenced most strongly by Greek political philosophy and the idea that law should aim to make men virtuous—as Aristotle says, to make men doers of noble deeds.8 Medieval scholastics adapted classical teaching that virtue and wisdom are the most legitimate claim to rule, adding faith to the virtues and identifying divine revelation as the most important type of wisdom. Thus understood, virtue and wisdom were found most completely in the Church and guarded within its ecclesiastical hierarchy.9 Saint Thomas Aquinas taught that the ideal form of government was a monarchy in which “under the law of Christ, kings must be subject to priests.”10

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This fusion of classical political philosophy with Christian political author­ ity proved disastrous in post-Reformation Europe. The idea that law should preserve and propagate theological orthodoxy led to vicious political battles between Catholics and Protestants, not to mention oppression for Jews. The stakes of politics included not only glory for ambitious men but also, it was believed, the eternal fate of citizens’ souls. The results included the devastat­ ing religious wars in which Protestants were no less politically ambitious or more theologically tolerant than Catholics. 2 Novus ordo seclorum With the wars of religion clearly in mind, early modern political philosophers attempted to construct a new understanding of political authority and a new conception of the purpose of government. If politics could be disentangled from revealed theology, its stakes could be lowered, wars of religion could be avoided, and individual liberty safeguarded. John Locke laid the foundation of this new political regime, from which the American founders then built.11 By considering man in the “state of nature,” Locke grasped the natural equal­ ity of all men, recognizing that, by nature, no man is ordained or appointed to rule another. Since the political community is instituted among naturally free and equal individuals, legitimate political authority requires consent. Locke thus ostracized both wisdom and divine right as legitimate claims to rule. One still would want rulers to be moral and virtuous, of course, but neither priests nor philosophers could claim political authority simply on account of their being priests or philosophers. While arguing for consent as the necessary foundation of just political rule, Locke also limited the authority and scope of civil law by emphasizing the centrality of faith in Christianity and its distinction of divine and human law. The ancient polis habituated soldiers to be courageous, and Christian monarchs commanded the performance of religious rites, but Locke argues that law as such cannot compel men to embrace true and saving faith. And what law cannot achieve, Locke contends in A Letter Concerning Toleration, it should not attempt. A reasonable commonwealth—that is, one that ration­ ally recognizes the inherent limitations of the coercive power of law—aims only at securing liberty. Locke thus conceived legitimate government as lim­ ited government. Both Thomas Jefferson and James Madison adopted these basic Lockean political teachings and implemented them in America. Madison also devel­ oped an additional argument for religious freedom that emphasizes man’s obligations to the Creator. Our natural right to religious liberty is “unal­ ienable,” Madison writes in his “Memorial and Remonstrance,” not only on account law’s inability to coerce saving beliefs, but also because every man has a “duty . . . to render to the Creator such homage and such only as he believes to be acceptable to him.”12 Given our created nature as free and rational beings, Madison reasons that we can infer something about

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the nature of true religious worship—namely, that it ought to be conducted according to one’s “reason and conviction.” Madison’s argument holds that our capacities for reason and freedom allow human beings to be self-directed moral agents, not simply unreflective slaves to our instincts or passions.13 As Jefferson says in his Virginia Statute, God, despite being “lord both of body and mind,” chose not to coerce man but rather to teach him by and through reason.14 The human ability to apprehend natural and divine moral princi­ ples and the freedom to choose whether to follow them establish a quintes­ sentially human manner of worship. Man can worship God freely according to conviction and conscience. This capacity to worship freely suggests that if men have the duty to worship God, then that duty can only be discharged through movements of heart and mind freely pursued.15 The nature of authentic human worship itself—which is discoverable via natural theology—leads to the conclusion that an individual cannot alienate his responsibility for or authority over his religious exercises to the state. As Madison says in his “Memorial and Remonstrance,” employing social com­ pact theory, because our obligations to the Creator are “precedent, both in order of time and in degree of obligation, to the claims of Civil Society,” we could not possibly alienate direct authority over religious exercises to politi­ cal authorities.16 The inalienable right to worship thus limits what govern­ ment can do legitimately; a just political order, constituted with due respect and recognition of proper worship, does not exercise jurisdiction over reli­ gious exercises as such.17 Understood in this way, political liberty—including the right of religious free exercise—is not premised on skepticism of, indiffer­ ence toward, or hostility to religious truth. Rather, the nature of human reli­ gious obligation itself demands that limits be placed on the state’s authority. While Madison emphasizes the nature of religious worship in his argu­ ments for limits on political authority, other founders reached similar con­ clusions through reflecting on human nature more broadly. Pennsylvanian James Wilson, a signer of both the Declaration of Independence and the Con­ stitution, penned the following remarkable passage in his Lectures on Law, arguably the founding-era’s most significant legal treatise. It is worth quoting Wilson at length: Nature has implanted in man the desire of his own happiness; she has inspired him with many tender affections towards others, especially in the near relations of life; she has endowed him with intellectual and with active powers; she has furnished him with a natural impulse to exercise his powers for his own happiness, and the happiness of those, for whom he entertains such tender affections. If all this be true, the undeniable consequence is, that he has a right to exert those powers for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not

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demand his labours. This right is natural liberty. Every man has a sense of this right. Every man has a sense of the impropriety of restraining or interrupting it.18 Wilson reasons that if we examine human nature—including our passions, desires, sentiments, and higher faculties of reason—we perceive that humans are made for freedom. He here articulates the founders’ common understand­ ing of liberty as an integral aspect of the law of nature. Liberty is a necessary condition for human beings to live according to what they are and to become what they are meant to be. “[I]n our voluntary actions,” Wilson writes, “con­ sist our dignity and perfection.”19 Note that it is not the voluntariness of the action alone that confers dig­ nity, but rather that man voluntarily acts in accordance with the natural moral law. Wilson distinguishes liberty from license. Liberty, properly under­ stood, does not include the freedom to do anything. “In a state of natural lib­ erty [the state of nature],” Wilson writes in his Lectures on Law, “everyone is allowed to act according to his own inclination, provided he transgress not those limits, which are assigned to him by the law of nature. ”20 The law of nature dictates both that man is meant to live in freedom and that human freedom has moral limits. “The laws of nature are the measure and the rule,” Wilson explains, “they ascertain the limits and the extent of natural liberty.21 As I discusses at length elsewhere, the American founders understood lib­ erty to be bounded by the natural moral law.22 In the founders’ understand­ ing, the right to do “X” does not imply that one can do anything to secure, enact, or practice “X.” The right to do “X” means the right to secure, enact, or practice “X” in a manner consistent with the law of nature. The founders often expressed the natural law boundaries on the exercise of natural rights in terms of respecting the equal rights of others. As Jefferson stated in a pri­ vate letter, “No man has a natural right to commit aggression on the equal rights of another.”23 Natural rights conceived by the founders do not include the right to do wrong—wrong being understood as acts contrary to law of nature, which itself is the law of reason. Perhaps the founding generation’s statement on the relationship between natural rights and natural law was best articulated by the young Alexander Hamilton in his “The Farmer Refuted” essay. Written at the outbreak of the American Revolution, in response to “A.W. Farmer,” the pseudonym of the loyalist Samuel Seabury, Hamilton sets forth the founders’ anti-Hobbesian understanding of natural rights. It is worth quoting Hamilton at length: There is so strong a similitude between your political principles and those maintained by Mr. Hobbs [sic] that, in judging from them, a per­ son might very easily mistake you for a disciple of his. His opinion was, exactly, coincident with yours, relative to man in a state of nature. He held, as you do, that he was, then, perfectly free from all restraint of

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law and government. Moral obligation, according to him, is derived from the introduction of civil society; and there is no virtue, but what is purely artificial, the mere contrivance of politicians, for the mainte­ nance of social intercourse. . . . To grant, that there is a supreme intelligence, who rules the world, and has established laws to regulate the actions of his creatures; and, still, to assert, that man, in a state of nature, may be considered as perfectly free from all restraints of law and government, appear to a common understanding, altogether irreconcileable [sic]. Good and wise men, in all ages, have embraced a very dissimilar theory [than Hobbes]. They have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensably [sic], obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature, “which, being coeval with mankind, and dictated by God himself, is, of course, superior in obliga­ tion to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately, or imme­ diately, from this original.” Blackstone. Upon this law, depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety. Hence, in a state of nature, no man had any moral power to deprive another of his life, limbs, property or liberty; nor the least authority to command, or exact obedience from him; except that which arose from the ties of consanguinity.24 Hamilton rejects the Hobbesian notion that the possession of natural rights implies that men are perfectly free from all moral restraints in the state of nature, and that moral obligation only arises from consenting to enter into civil society.25 Rather, Hamilton and the founders more generally understand natural rights as themselves part of the natural moral law. As James Wilson would later reason, Hamilton derives “an inviolable right to personal lib­ erty” from man’s rational faculties endowed to man by his Creator. We are free because we are reasonable; the freedom befitting our nature is limited to that which is reasonable. The scope of this liberty is itself bounded. Political arrangements instituted to develop civil protections for liberty are themselves derived from the natural law and necessary to do justice to God and His creation. ***

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Unlike all previous regimes—which, at their highest, aimed at virtue or piety or, at their most depraved, at satisfying the tyrannical desires of rulers— America’s founding fathers sought to secure “the blessings of liberty.” That which is “blessed” pleases God.26 Founders such as Madison, Wilson, and Hamilton identified political liberty as a blessing because it allows human being to orient ourselves to God and the good through reflection and choice. They grounded natural rights—including the inalienable right to religious liberty—in duties to God and the moral fabric of the human nature. While establishing a polity that protects liberty is a great accomplishment, the founders understood that liberty alone is not final end or even an end in and of itself. Rather, the founders’ conception of freedom orients itself toward the divine and to the moral use of freedom. The purpose or telos of political freedom is to make human flourishing possible—including, most importantly, the worship of God according to conviction and conscience— but more generally the freedom for individuals to direct their own lives in accordance with reason. Our rights, in other words, find footing in the ful­ fillment of our duties and in what is necessary for human beings to live in a morally responsible manner.27 Understood in this way, the founders did not lower the aim of government because they abandoned the classical concep­ tion of the good or noble notions of human flourishing; rather, they consti­ tuted political authority cognizant of justice toward the Creator, and to how His design of human beings demands limits on political authority.28 Notes 1 In earlier version of some parts of this essay first appeared in Vincent Phillip Muñoz, “Religious Liberty and the American Founding,” Intercollegiate Review 38 (2003): 33–43. 2 “The Listening Heart: Reflections on the Foundations of Law,” September  22, 2011 3 The American founders did not use the terms “classical liberal” or even “liberal­ ism”—they considered the Constitution to be “republican” in character. But inso­ far as “classical liberalism” denotes that the proper end of government is to secure individuals’ natural rights, the term can be extended to the Founders’ political philosophy. On the Founders’ republicanism, see, for example, Federalist 39: The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamen­ tal principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, there­ fore, be found to depart from the republican character, its advocates must abandon it as no longer defensible. 4 Coulanges describes citizenship in the ancient city as follows: The citizen was recognized by the fact that he had a part in the religion of the city, and it was from this participation that he derived all his civil and political

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Vincent Phillip Muñoz rights. If he renounced the worship, he renounced the rights . . . If we wished to give an exact definition of a citizen, we should say that it was a man who had the religion of the city.

Numa Denis Fustel De Coulanges, The Ancient City: A  Study of the Religion, Laws, and Institutions of Greece and Rome (Baltimore, MD: The John Hopkins University Press, 1980), 185–186. See, also, Harry V. Jaffa, “Aristotle,” in His­ tory of Political Philosophy, 2nd ed., ed. Leo Strauss and Joseph Cropsey (Chi­ cago, IL: Rand McNally, 1972), esp. 65–67. 5 See, Matthew 22:17–21; Mark 12:13–17; Luke 20:20–26. See also Coulanges, The Ancient City, 381–388. Francis Fukuyama offers an alternative (though not incompatible) account of how Christianity undermines kinship-based social and political organization in The Origins of Political Order: From Prehuman Times to the French Revolution (New York: Farrar, Strauss and Giroux, 2011), Chapter 16. 6 See Oscar Cullmann, The State in the New Testament (New York: Charles Scrib­ ners Sons, 1956); Ernest L. Fortin, “The Regime of Separationism; Theoretical Considerations on the Separation of Church and State,” in Human Rights, Virtue, and the Common Good (Lanham, MD: Rowman & Littlefield, 1996), 1–18. 7 In this light, consider the following from Pope Leo XIII in Longinqua, his 1895 encyclical on Catholicism in the United States: But, moreover (a fact which it gives pleasure to acknowledge), thanks are due to the equity of the laws which obtain in America and to the customs of the well-ordered Republic. For the Church amongst you, unopposed by the Con­ stitution and government of your nation, fettered by no hostile legislation, protected against violence by the common laws and the impartiality of the tribunals, is free to live and act without hindrance. Yet, though all this is true, it would be very erroneous to draw the conclusion that in America is to be sought the type of the most desirable status of the Church, or that it would be universally lawful or expedient for State and Church to be, as in America, dis­ severed and divorced. The fact that Catholicity with you is in good condition, nay, is even enjoying a prosperous growth, is by all means to be attributed to the fecundity with which God has endowed His Church, in virtue of which unless men or circumstances interfere, she spontaneously expands and propa­ gates herself; but she would bring forth more abundant fruits if, in addition to liberty, she enjoyed the favor of the laws and the patronage of the public authority.

8

9 10 11

Available at www.vatican.va/content/leo-xiii/en/encyclicals/documents/hf_l-xiii_ enc_06011895_longinqua.html (accessed January 16, 2023). See, Pope Benedict XVI, “The Listening Heart: Reflections on the Founda­ tion of Law, September  22, 2011, www.vatican.va/content/benedict-xvi/en/ speeches/2011/september/documents/hf_ben-xvi_spe_20110922_reichstag­ berlin.html (accessed January 16, 2023). For a helpful and critical overview of contemporary integralist manifestations of this position, see O. P. James Dominic Rooney, “Illiberal Integralist Elites,” Law & Liberty, January 3, 2023, https://lawliberty.org/illiberal-integralist-elites/. Thomas Aquinas, De regno, Book I, chapters 3 and 15. Of the considerable scholarship of the ideological origins of the American Found­ ing, see: Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1967); Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founding and the Philosophy of Locke (Chicago: University of Chicago Press, 1990); Michael P. Zuckert, Launching Liberalism (Lawrence: University Press of Kansas, 2002),

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13

14 15

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especially chapters 8 and 10; Thomas G. West, The Political Theory of the Amer­ ican Founding (New York: Cambridge University Press, 2017); Justin Buckley Dyer and Kody W. Cooper, The Classical and Christian Origins of American Poli­ tics: Political Theology, Natural Law, and the American Founding (New York: Cambridge University Press, 2022). James Madison, “Memorial Remonstrance Against Religious Assessments,” in Religious Liberty and the Supreme Court: The Essential Cases and Documents, revised ed., ed. Vincent Phillip Muñoz (Lanham, MD: Rowman  & Littlefield, 2015), 606–607, emphasis added. This paragraph is adopted from Religious Liberty and the American Found­ ing: Natural Rights and the Original Meaning of the First Amendment Religion Clauses (Chicago, IL: University of Chicago Press, 2022), 319–320. See also Vin­ cent Phillip Muñoz, “Two Concepts of Religious Liberty,” American Political Science Review 110, no. 2 (2016): 370–371. “A Bill for Establishing Religious Freedom in Virginia,” in Religious Liberty and the American Supreme Court, 604. As I explain in Religious Liberty and the American Founding, 78–79, the natural theology guiding Madison’s understanding is reflected in his July 23, 1813, presi­ dential proclamation calling for a national day of prayer: If the public homage of a people can ever be worthy [of] the favorable regard of the Holy and Omniscient Being to whom it is addressed, it must be that, in which those who join in it are guided only by their free choice, by the impulse of their hearts and the dictates of their consciences; . . .

16 17 18 19 20

21

Only worship “freed from all coercive edicts” and “free-will offerings of humble supplication, thanksgiving and praise,” Madison continues, “can be acceptable to Him whom no hypocrisy can deceive, and no forced sacrifices propitiate.” Because man possesses reason and freedom, Madison infers that the creator would settle for nothing less than freely given worship that reflects conscientious convictions. Madison’s proclamation can be found in Papers of James Madison: Presidential Series, Vol. 6, ed. J. C. A. Stagg et al. (Charlottesville, VA: University of Virginia Press, 1984), 458–459. Madison, “Memorial and Remonstrance.” See Vincent Phillip Muñoz, Religious Liberty and the American Founding: Natu­ ral Rights and the Original Meanings of the First Amendment Religion Clauses (Chicago, IL: University of Chicago Press, 2022), Chapter 3. James Wilson, Lectures on Law (Chapter 7, “Of Man as a Member of Society”), in Collected Works of James Wilson, Vol. 1, ed. Kermit L. Hall and Mark David Hall (Indianapolis: Liberty Fund, 2007), 638–639. Ibid. Ibid., 2:1056. For further discussion of the Founders’ understanding of the natu­ ral law boundaries on natural rights, with particular reference to James Wilson, see, Hadley Arkes, Beyond the Constitution (Princeton, NJ: Princeton University Press, 1990), 62–65. Wilson, Lectures on Law, 1:639. Wilson also distinguishes among honorable and less honorable uses of our natural liberty within the category of that which is licit: Those who judge wisely, will use this liberty virtuously and honourably: those, who are less wise, will employ it in meaner pursuits: others, again, may, per­ haps, indulge it in what may be justly censured as vicious and dishonourable. Yet, with regard even to these last, while they are not injurious to others; and while no human institution has placed them under the control of magistrates or laws, the sense of liberty is so strong, and its loss is so deeply resented, that, upon the whole, more unhappiness would result from depriving them of their

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Vincent Phillip Muñoz liberty on account of their imprudence, than could be reasonably apprehended from the imprudent use of their liberty.

22 23

24 25 26 27 28

Wilson, Lectures on Law (Chapter  7, “Of Man as a Member of Society”), 1:638–639. See Muñoz, Religious Liberty and the American Founding, Chapter 2. This para­ graph is derived from p. 61. Thomas Jefferson, letter to Francis Walker Gilmer, June 7, 1816, in The Works of Thomas Jefferson, ed. Paul L. Ford (New York: Knickerbocker Press, 1905), 534. For a helpful discussion of the American founders’ conception of natural rights, see Mark Blitz, Conserving Liberty (Stanford, CA: Hoover Institution Press, 2011), Chapter 1. Alexander Hamilton, “The Farmer Refuted,” February  23, 1775, in Selected Writings and Speeches of Alexander Hamilton, ed. Morton J. Frisch (Washington, DC: American Enterprise Institute for Public Policy Research, 1985), 19–20. For a discussion of the natural law boundaries on natural rights, including Hamil­ ton’s articulation of this position, see Muñoz, Religious Liberty and the American Founding, 59–67. Harey V. Jaffa, The American Founding as the Best Regime (Claremont, CA: Claremont Institute for the Study of Statesmanship and Political Philosophy, 1990), 1. For a discussion of the moral virtue of responsibility and its privileged place in liberal democracy, see Mark Blitz, Duty Bound: Responsibility and American Public Life (Lanham, MD: Rowman & Littlefield, 2005). In this light, consider the opening lines from the 1965 Papal encyclical Dignitatis Humanae: 1. A  sense of the dignity of the human person has been impressing itself more and more deeply on the consciousness of contemporary man, (1) and the demand is increasingly made that men should act on their own judgment, enjoying and making use of a responsible freedom, not driven by coercion but motivated by a sense of duty. The demand is likewise made that constitutional limits should be set to the powers of government, in order that there may be no encroachment on the rightful freedom of the person and of associations. This demand for freedom in human society chiefly regards the quest for the values proper to the human spirit. Dignitatis Humane, December 7, 1965, www.vatican.va/archive/hist_councils/ii_ vatican_council/documents/vat-ii_decl_19651207_dignitatis-humanae_en.html (accessed January 18, 2023).

16 Confucian perfectionism and resources for liberties May Sim

Introduction In the interest of showing that pre-Qin Confucian ethics is relevant to the modern world with its emphasis on pluralism, some commentators argue that this brand of ethics has the resources that support individual autonomy and liberalism, but disagree about the degree of freedom in Confucianism. I discuss a couple of commentators who advocate modifications to Confu­ cianism to make it relevant to the contemporary world. Against their modifi­ cations which contradict the views of pre-Qin Confucians such as Confucius and Mencius, I argue for resources that are already available in these philoso­ phers for liberal values and human rights. Disputes about the degree of liberal values in Confucianism can be traced to its view of choice. What sorts of choices does an autonomous individ­ ual have in the modern world, and are these choices open to a Confucian? Focusing on Confucius and Mencius as representatives, neither of whom pos­ sesses an explicit theory of choice, I compare their ethics with Aristotle’s to illuminate how choice would function for them. Aristotle not only has a robust theory of choice, but shares with these Confucians an ethics of virtue, beliefs about its cultivation, and other conditions for being virtuous. Com­ paring these authors who are culturally and philosophically diverse could offer an answer about how liberal classical Confucianism is while avoiding the charge of cultural parochialism. Aristotle’s and these early Confucians’ shared endorsement of virtue ethics also offers relevant resources regarding autonomy and liberalism for virtue ethics. I begin by presenting two different approaches to the defense of individual autonomy or liberalism in Confucianism.1 Tu Weiming and Joseph Chan offer different perspectives on the limitations of individual life choices in classical Confucianism. According to them, classical Confucianism constrains an indi­ vidual’s life choices to traditional ideals without the liberty to question them, to substitute their own subjective views, or choose from a variety of valuable options in a liberal society. To make Confucianism more palatable for the modern world, Tu advocates for the incorporation of liberal ideals into Con­ fucianism to enable questioning of all beliefs and dogmas. Conversely, Chan DOI: 10.4324/9781032702766-21

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suggests a more moderate liberalism that balances personal autonomy with moralistic and paternalistic considerations. I’ll show that Tu’s unqualified liberalism is inconsistent with the moral virtues that Confucius and Men­ cius endorse. And I’ll argue that Chan’s qualified liberalism gives rise to the contradiction between the pursuit of moral virtues in Confucianism and the acceptance of immoral actions in his moderate liberalism. Despite my disa­ greements with Tu and Chan, I believe that classical Confucianism already offers resources that support individual freedom and human rights. Specifi­ cally, I’ll show that Confucian perspectives on the relationship between par­ ents and children, teachers and students, as well as rulers and ruled, establish ethical boundaries for individual freedom while also define its rightful role in the Confucian goal of perfecting virtues. 1 Contemporary defense of Confucian liberalism by Tu Wei-Ming In “Confucianism and Liberalism,” Tu Wei-ming argues for a Confucianism that is an “open-minded” rather than a “closed-off” system.2 Tu acknowl­ edges that modernity is inseparable from the “two central ideals of liber­ alism,” namely, freedom and human rights. Explaining that the ideal of freedom is central to the modern market economy and democracy, Tu asserts that freedom “underlines such ideas as individual autonomy, choice, dignity, and rights that have served as the foundation of contemporary Western socie­ ties.”3 Consequently, he maintains that Confucianism cannot but modernize. He says: I believe that as long as it can make friends with and accommodate these modern ideas, Confucianism can continue to prosper and be rel­ evant to modern societies. However, it will be abandoned if it becomes nothing more than an implacable obstacle to these ideas.4 Tu claims that Confucianism is not only compatible with liberalism, but its ideal of “personhood” is more suited to democracy than either tra­ ditional feudalism or modern authoritarianism.5 Only after undergoing a self-transformation, or in Tu’s own words, only “after being baptized in the values brought out by the Enlightenment” can Confucianism offer us the resources to criticize the “Enlightenment mentality” and solve our modern problems.6 More elaborately, Tu thinks that pre-Qin Confucianism has the resources for addressing human rights in our contemporary world. He mentions that one of the five principles proposed by the Singapore government for a wellfunctioning society, namely, that “the community and the state are higher than the individual,”7 is contrary to Confucianism. Rather than prioritizing the community and the state over the individual, Tu maintains that pre-Qin Confucianism would insist on the ruler’s responsibility to protect people’s

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rights and look out for their welfare. He says, “People have the right to demand from rulers their fundamental security, basic needs for living, and conditions for self-development.”8 On the contrary, Tu explains that a ruler, in exercising his right, would proceed from the principle: “help others to establish themselves as you would wish to establish yourself and to help others to complete themselves as you would wish to complete yourself.”9 Tu elaborates by saying: Whether in social behavior or in exercising the principle of justice or in following ethical norms or conducting interpersonal relationships, Confucianism always set more strict demands on the rulers. Because they have greater power and higher position, they are enjoined to be strict with themselves and more generous with others.10 I have two responses to Tu’s criticism of the Singapore government’s prin­ ciple that the state or community takes priority over the individual. First, Tu’s claim that the Confucian ruler is responsible for the welfare of the people can be seen as an instance of prioritizing the community or the state over the individual. In this case, the ruler is the individual whereas the people are the community or the state. As such, his argument against the priority of the community over the individual in his discussion of the ruler’s obligation to the people supports the very principle he denies.11 That Confucius prioritizes the community over the individual is revealed in his answer to the question about the humane person (ren 仁, also translated as “benevolence”) as some­ one who loves others and knows others (12.22). In addition, he is devoted to what is appropriate (yi 義, also translated as “righteous”/”righteousness”) for the people (min 民) (6.22) and considers if he has done his best (zhong 忠) for the people in his daily self-examination (1.4). These passages show that for Confucius, the virtuous person is one who cares for, and has consid­ eration for others. Most evident of Confucius’s remarks that prioritizes the community, or others over the individual, is his statement about those who are completely perfect (chengren 成人): If on seeing a chance to profit they think of righteousness (yi 義), on see­ ing danger they are ready to give their lives, and when long in desperate straits, they still do not forget the words they live by—such persons can also be said to be complete. (14.12, my modifications) In each instance of the perfect person’s actions, Confucius maintains that the individual puts others ahead of his own advantage, safety, or self-interest and acts virtuously toward others. In a similar vein, Mencius holds that if someone could extend what they wish for themselves (in terms of feelings and actions) to others, then they

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would have the virtues of humaneness/benevolence and righteousness. Men­ cius states: People all have things that they will not bear. To extend this reaction to that which they will bear is benevolence. People all have things that they will not do. To extend this reaction to that which they will do is right­ eousness. If people can fill out the heart that does not desire to harm others, their benevolence will be inexhaustible. If people can fill out the heart that will not trespass, their righteousness will be inexhaustible. (7B 31.1–31.2)12 More elaborately, for Mencius, the virtues of benevolence and righteous­ ness are cultivated by perfecting the virtue of reciprocity (doing to others what one wishes to be done to oneself) that begins with those relations who are closest to us. For example, people can’t bear to see their own parents go hungry, but can bear to watch the parents of others suffer. Mencius’s point is that if these people can put themselves in another’s position and regard the latter’s parents’ suffering as their own parents’ suffering, and extend their compassion to them, then they will possess the virtue of benev­ olence. Similarly, people won’t treat their own relatives unfairly, but are quite ready to treat the relatives of someone else unfairly. Again, Mencius holds that if these people can extend their unwillingness to inflict harm on their own relatives to the relatives of others, and treat them as if they were their own relatives, then they’ll have the virtue of righteousness. In short, prioritizing others in the community by treating them as we would like to be treated is for Mencius the way to perfect our virtues of benevolence and righteousness. My second response to Tu is this. It isn’t clear that his discussion of rights in Confucianism is bound up with the kind of liberalism and autonomy that characterizes modernity. For Tu, liberalism is a position where “no presuppo­ sitions, no beliefs, and no dogmas . . . are exempt from being fully discussed and questioned.”13 He asserts that this approach is what Confucianism shares with liberalism, which I  think is questionable. Can Confucianism endorse such openness and still maintain the strict demands on the ruler’s exercise of his rights, as Tu characterizes in his interpretation of Confucianism? For example: Is the demand that rulers be strict with themselves and generous with others, or the demand that they act according to reciprocity (shu 恕, or the silver rule of not doing to others what one doesn’t want done to one­ self), consistent with the liberal perspective in which every value is subject to questioning? Consider Confucius’s remark that his way (dao) is united in one thread consisting in doing one’s best (zhong) and according to reciprocity in actions (4.15).14 Or his claim that one must be faithfully committed (du xin 篤信) to the love of learning (haoxue 好學) and defend (shou 守) the good dao (shandao 善道) to one’s death (8.13). Similarly, Mencius explains that to

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be a noble character, one would aim one’s will high, meaning one would aim for the virtues such as humaneness/benevolence and righteousness. He states: Let him [who is trying to be noble] simply be benevolent and righteous. To kill one innocent person is to fail to be benevolent. To take some­ thing that one is not entitled to is to fail to be righteous. Where does he dwell? Benevolence. Where is his path? Righteousness. If he dwells in benevolence and follows righteousness, the task of a great person is complete. (7A 33.3) Such values from the Analects and the Mengzi are essential to Confucianism and questioning them would undermine the virtues that are fundamental to this tradition. As such, is Tu correct in holding that the Confucian individual is as autonomous as the individual of modernity? Heiner Roetz too criticizes Tu’s way of substituting a Confucian moder­ nity for Western modernity. Far from escaping the Enlightenment mentality engendered ailment of individual acquisitiveness and “instrumental rational­ ity” in Western modernity, Roetz observes that these same sicknesses plague the Chinese today.15 Roetz says: The rapid and deep social changes in the PRC, too, do not support the thesis of a Confucian modernity. This refers not only to the spread of “Western” urban life-styles and of a pluralism of ideas of a good life which in the long run can only be held together by the frame­ work of individual rights rather than by appeals to no longer col­ lectively shared “cultural values.” There is furthermore the reserve army of millions of working migrants, whose exploitation rather than any Confucian work ethics is the backbone of the economic boom. Will this leave “primordial ties” which Tu never wearies of stressing, intact?16 Roetz continues to question Tu’s Confucian modernity by criticizing the effects of the one child policy on the family structure, which no longer pro­ vides the same precondition for the cultivation of virtue. Contrary to Tu’s assertion that Confucianism shares with liberalism the pluralism of ideas about the good life, Roetz’s and my criticism of his view reveal that Confu­ cianism would only undermine its own moral values and the means of culti­ vation if such pluralism were embraced. 2 Contemporary defense of Confucian liberalism by Joseph Chan In a similar vein as Tu, Joseph Chan discusses the issue of moral autonomy and civil liberties in Confucianism. Offering that “Individuals are morally

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autonomous if they are in some sense master [sic] of their moral lives,” Chan holds that such autonomy includes the following four elements: 1. 2. 3. 4.

The voluntary endorsement of morality. A reflective engagement in moral life. The recognition of morality as self-legislation. The recognition of morality as radical free expression of the individual’s will.17

For Chan, the first element of voluntary endorsement is a minimal requirement, though not sufficient, for moral autonomy.18 Voluntary endorsement is the opposite of coercion, which Chan holds is uncontrover­ sial for most ethical theories.19 Contrasting his second element of reflective engagement with how one can be moral through unreflective habit, Chan insists on reflection for an individual to be the master of his own moral life.20 For Chan, these first two elements of moral autonomy are present in Confucianism.21 Distinguishing reflective engagement from morality as self-legislation, Chan states, “the function of reflection is to discover, to know, and to endorse the true morality .  .  . morality as self-legislation, however, requires more independence.”22 (135). Chan illustrates morality as self-legislation, stating, “It is reason, inherent in one’s humanity alone, that gives rise to moral law.”23 Nevertheless, appealing to how Kant’s self-legislation stems from an abstract self, Chan asserts that such legislation “is not an expression of individuality as such, but of abstract universal reason to which all human beings should submit.”24 In contrast, Chan characterizes the “expressivist view” as “thor­ oughly subjective .  .  . unconstrained by any factors other than one’s own reflection based on one’s desires, ambition, and personal circumstances . . . [so that] moral choices are . . . necessarily subjective.”25 Chan then denies that the third and the fourth elements of moral autonomy are present in Confucianism since there are specific virtues, such as humaneness and filial piety, that one must “grasp and willfully embrace.”26 Put otherwise, a Confu­ cian moral agent has no choice but to act according with these virtues if she wishes to be moral. Apart from the pursuit of moral perfection by individuals, Chan also holds that political perfectionism is the goal of a Confucian state. He says, “One of the most important tasks of the state is to promote morality and virtue,” as these shared moral principles promote the stability and flourishing of the state.27 Thus, a Confucian society prioritizes morality over other goods. But because of the first two elements of moral autonomy, Chan holds that Confu­ cianism would allow for some immoral views or false beliefs which can help provoke reflection rather than unreflective acceptance of convention.28 How­ ever, he points to the limitation of support for civil liberties in Confucianism as he says that the development of reflective engagement doesn’t require “the

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soil of a free, open society in which all ideas can compete on an equal foot­ ing.”29 Chan concludes: Confucian moral autonomy is not compatible with either an oppres­ sive moral community or a liberal-open society, but is compatible with what may be called a morally conservative environment in which liber­ ties and their restriction are balanced in such a way as to best promote the moral good.30 Chan offers a Western liberal attitude toward unethical behavior as a con­ trast to Confucian moral autonomy: “A  typical liberal position would be that the state has no business interfering with individual freedom unless the expression of this freedom causes harm to others.”31 Chan explains that lib­ erals justify their position by appealing to the respect we owe to personal dignity and independence, as well as the uniqueness of individuality. Unlike moral autonomy which prioritizes moral personhood that is “the same for all human beings,” individual uniqueness is variable.32 Chan follows Steven Wall who calls the aforementioned priority of individual uniqueness “personal autonomy,” which he defines as “the ideal of people .  .  . self-consciously choosing projects . . . from a wide range of eligible alternatives, and making something out of their lives according to their own understanding of what is valuable and worth doing.”33 For Chan, because personal autonomy requires a wide range of alternatives for individual choices, it offers a stronger justifi­ cation for civil liberties than Confucian moral autonomy. Chan’s “new the­ ory” combines Confucian perfectionism with a moderate personal autonomy that sometimes prioritizes the ability of “agents to direct their own lives . . . even if some of those choices may not be wholly desirable.”34 Chan offers the example of modifying filial piety by giving up obedience to parents, while retaining the respect, honor, and care aspects of this virtue. His reasoning is that today’s parents are unlike those in the past as they aren’t sufficiently informed about the choices in relationships, education, careers, economics, and politics that are open to their adult children to determine their lives for them. Thus, according to Chan, obedience to parents is no longer relevant to the ways for grown children to express filial piety. Chan, like Tu, desires to adapt Confucianism to the modern world by broadening an individual’s freedom to choose his lifestyle or by according more autonomy to the individual than classical Confucianism. But he seems more conservative than Tu in denying that Confucianism shares with liber­ alism the view that “no presuppositions, no beliefs, and no dogmas . . . are exempt from being fully discussed and questioned.” Chan maintains that certain Confucian values, such as humaneness which constitutes its perfec­ tionism, will not be overridden by his new Confucian theory. Despite Chan’s compromise and acknowledgment that certain Confu­ cian values that constitute perfectionism cannot be overridden, so that

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his proposed liberalism is more moderate than Tu’s, I have two objections against his new Confucian theory. My first objection concerns the timing of when the personal autonomy to do something would supersede Confucian morality such that an individual’s choice of what’s valuable supersedes her doing the right thing according to Confucianism. Chan says that his new theory which combines Confucian perfectionism with a moderate personal autonomy would “sometimes” prioritize an individual’s choices of what she regards is worthy even though they might be morally wrong. However, since Confucianism is about becoming a moral person who eventually possesses the highest virtue of humaneness (ren), is this goal achievable by someone who occasionally performs morally wrong actions? More elaborately, Con­ fucian ren includes other moral virtues such as being courageous, truthful, righteous, wise, and acting with reciprocity, just to name but a few. This means that Confucianism’s ethics of virtue precludes any immoral acts, not to mention any wrong motives, desires, feelings, in short, all the components of the virtues of character. To become ren, which value for Chan constitutes Confucian perfectionism and hence, by his own account cannot be overrid­ den by his new theory, one cannot prioritize immoral choices at all. Hence, it is questionable if Chan’s proposed moderate personal autonomy is compat­ ible with Confucianism. My second disagreement with Chan concerns his modification of filial piety for Confucianism by abdicating obedience to parents, saying that par­ ents nowadays don’t know enough to make life choices for their adult chil­ dren. Contrary to Chan’s interpretation of obedience in which someone must follow his parent’s choice of lifestyle, Confucius actually recommends adult children to remonstrate with their parents when they aren’t acting appro­ priately (4.18). One can imagine how children these days are more knowl­ edgeable about environmental issues than their parents. As such, they are positioned to persuade parents who aren’t already engaged in environmental concerns, such as recycling, to do so.35 Thus, the sort of obedience in Confu­ cian filial piety isn’t blind. Based on Confucius’s remark about remonstrat­ ing with parents to get them to act appropriately, one can imagine adult children’s explaining to, and remonstrating with their parents to accept their choices of marriage partners, places of residence, or career choices. Contrary to Chan’s proposal, obedience to parents in filial piety is not an obstacle to pursuing lifestyles that are unfamiliar to one’s parents since Confucius’s view of filial piety includes remonstrating with one’s parents. 3 Confucian resources for liberties Despite my criticisms of Tu and Chan, I will propose that there are resources in classical Confucianism to affirm individual freedom and human rights. Confucian accounts of the parent-child relationship, and of filial obedience, outline both the moral limits on individual freedom and the proper place of individual freedom in the life of a virtuous person.36 Tu’s ideals of liberalism

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are also shared by Chan. At issue for commentators such as Tu and Chan as regards classical Confucianism is the limitation of an individual’s life choices to the ideals handed down by tradition, without the freedom to question them, the right to substitute their subjective views of what is worthy, or choose from a variety of options of what is valuable in an open liberal society. Tu updates this classical tradition by adding the core ideals of liberalism to Con­ fucianism so that all beliefs and dogmas become questionable, whereas Chan offers a more moderate liberalism by allowing some sort of balance between personal autonomy and “moralistic and paternalistic considerations.”37 I’ve shown that Tu’s solution of an unqualified liberalism is incompatible with the moral virtues that Confucius and Mencius value. Chan’s option of a quali­ fied, moderate liberalism faces the contradiction between Confucianism’s pursuit of moral virtues and moderate liberalism’s acceptance of immoral actions. I’ve also questioned Chan’s lack of guidance about how the balance between what’s moral and immoral is to be adjudicated. My solution is to look to classical Confucianism itself for resources to individual freedom and human rights. Unlike Chan who holds that obedi­ ence to parents would limit personal autonomy, I think that the parent-child relationship and roles, and in general, other roles and relations in Confucian­ ism, constitute the ground for cultivating freedom. Just as Mencius holds that the virtue of humaneness/benevolence begins at home from one’s love toward one’s own parents, which love and compassion are then extended toward others in the community, being obedient to one’s parents enables one to obey others, such as rulers or other authorities in the wider community.38 Instead of thinking that obedience in the wider community would limit some­ one’s freedom, it could actually lead to more liberty. Consider how obeying the laws or abiding by ritual propriety in a state can help maintain social order, which in turn will enable one the freedom to perform other actions, for example, engage in learning and participating in various social activities. Apart from the greater freedom which obedience to parents and conform­ ity to laws and rituals enable an individual to have, Confucians are open to an individual’s initiative in trying to change such social structures or the participants in them. For instance, I’ve mentioned that Confucius includes remonstrating with one’s parents when they are in error as a responsibility in filial piety. He states, “in serving father and mother, remonstrate with them gently” (4.18), and emphasizes how one should maintain respect and continue being filial even if they were not to change their ways immediately. Given Confucius’s belief that one should establish others while trying to establish oneself in being virtuous (6.30), he would also urge an individual to be patient and persist in remonstrating with his parents. Beyond the home, Confucius’s openness to an individual’s initiative is apparent in his remark that she should challenge her teacher if she’s trying to achieve humaneness. He sates, “in striving to be ren, do not yield even to your teacher” (15.36, my modifications). Such a remark is liberal for his time because teachers then were treated with the same respect as parents. What

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these remarks concerning relationships with parents and teachers show is that the virtue of ren requires individuals to take initiative in determining for themselves what is right in a particular situation, rather than be blindly obeying authority figures.39 Mencius would agree that individual reflection rather than blind obedience is required to achieve perfection. In his view, human nature is endowed with the heart-mind (xin 心) which function is to reflect, saying, “if it reflects, then it will get it. If it does not reflect, then it will not get it. This is what Heaven has given us” (6A 15.2). One might object to the analogy between the family and the state by holding that whereas the family is a private realm, the state is public and non-familial members don’t have the authority to intervene in familial affairs gone awry. However, this is where Confucian rituals governing all types of relationships come into play by offering moral norms. Because parents are to be caring toward their children, and children are to be filial toward their parents, when either party isn’t fulfilling their responsibilities prescribed by their roles, the moral trans­ gressions would be clear to the family members themselves and outsiders too, and constitute grounds for criticism and rectification by social institutions.40 Such justifications for external intervention exist regardless of whether there are formal institutions already set up with legal injunctions to intervene. For Confucians, the shame of failing to live up to one’s obligations is a stronger motivation for correcting oneself than a state’s punitive measures.41 Moving beyond one’s familial and pedagogical relationships, Confucians believe that ritual propriety are changeable rather than fixed. Thus, people are not bound to traditional customs if they are no longer relevant to cultivat­ ing virtues in the modern world. For instance, Confucius agrees with the new custom of substituting a silk for a hemp cap, in observing a ceremonial ritual because the former is more economical (9.3). Nevertheless, in the same pas­ sage, he disagrees with the new convention of kowtowing after entering the ancestral hall instead of upon entering it. He says, “although it goes contrary to accepted practice, I still kowtow on entering the hall” (9.3). Confucius’s reason for going against the current convention regarding when to kowtow is that the current practice fails to convey the appropriate degree of respect that is due to entering the ancestral hall. His decision to defy conventional practice illustrates that Confucianism allows for an individual’s freedom to choose and encourages nonconformity if doing so expresses what’s right in a certain situation. Likewise, both Confucius and Mencius condemn what they call the “village worthies” as the “thieves of virtue” (7B 37.10–37.12) who unfailingly adhere to conventional customs and appear to be virtuous to everyone in the community. However, contrary to everyone’s approval of their behavior, to Confucius and Mencius, they are devoid of moral virtues because they uncritically adhere to the status quo, saying, “Born in this era, we should be for this era” (7B 37.9). Mencius describes these village worthies as “eunuch-like” and are “pandering to their era” (7B 37.9), whilst Confu­ cius remarks that they are excellent “under false pretenses” (17.13).

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Beyond the familial and social, classical Confucianism also has the resource for supporting the exercise of individual choice in the political realm. Note that this isn’t a claim that Confucian politics is already lib­ eral or that Confucian nations already engage in democratic systems of government. Whereas commentors like Tu and Chan offer modifications to Confucianism to make this tradition more applicable and attractive today, I appeal to existing resources in Confucian values that can support the exercise of individual choice in participating in government despite their not having been implemented. I differ from Tu and Chan in appeal­ ing to resources in Confucianism that actually value individuals and their choices instead of modifying Confucianism to include liberal values. Time and again, Confucius urges people not to engage in government service in a corrupt state. He says: Do not enter a state in crisis, and do not tarry in one that is in revolt . . . It is a disgrace to remain poor and without rank when the way prevails in the state; it is a disgrace to be wealthy and of noble rank when it does not. (8.13, see also 14.1)42 Similarly, Mencius’s injunction to abide by the Way instead of following what others do is apparent when he says, “When the world lacks the Way, you stay with the Way to the grave. But I have never heard of the Way staying with you while you follow others” (7A 42.1–42.2). These views reflect Confucius’s and Mencius’s endorsement of an individual’s initiative and ability to choose rather than adhering to the practices of the majority and state. The aforementioned individual liberties to express oneself and act in the family and beyond (in social and political situations), in ways that don’t always conform to conventional practices can be protected by human rights even though the concept of “rights” and talk of rights were absent in tradi­ tional Confucian societies. Just as my qualification about the liberal values in Confucianism doesn’t mean that they are already practiced in the politics of Confucian nations, my talk of how individual liberties are compatible with their being protected by rights doesn’t mean that there are actually rights that protect these liberties already in practice in contemporary self-proclaimed Confucian nations. Instead of legal rights that already exist to protect indi­ vidual liberties in Confucianism, I’m pointing to this tradition’s ability to justify an individual’s possession of moral rights because of its account of a human being’s purpose in life to become morally virtuous that requires the exercise of individual liberties. I’ve argued elsewhere for the compatibility of Confucianism and human rights.43 As such, I shall briefly summarize my argument for the compatibility of the pursuit of the Confucian moral virtues (e.g., being truthful, acting with reciprocity, righteousness and humaneness, etc.) and human rights here.

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In general, my view is that the aforementioned moral virtues such as truth­ fulness (which entails the freedom of speech), righteousness (which entails the freedom to act), and benevolence and reciprocity (both of which entail the freedom to act and associate with others) are the goals that Confucianism endorses for all human beings. Accordingly, this tradition should also support the conditions for the cultivation and exercise of these moral virtues. Just as Mencius holds that the ruler of a state is responsible for providing the eco­ nomic conditions that will sustain the people’s livelihood so that they can cul­ tivate the virtues of benevolence, righteousness, and ritual propriety instead of resorting to criminal acts to survive and support their families, governments that claim to be Confucian, for example, China, ought also to provide the con­ ditions for their people to cultivate the Confucian virtues. One way of ensuring the conditions for people’s cultivation and exercise of the virtues is to protect their freedoms of thought, speech, action, and association. For example, if one cannot be virtuous without the freedom of speech to tell the truth, even and especially if the truth is critical of one’s government, embracing the legal right to free speech is a way of protecting the condition to cultivate truthfulness. Such a practice of free speech is in turn compatible with the people’s ability to exercise their freedom of thought, association, and actions to defend their civil and political rights. Unless one is free to speak up against a corrupt govern­ ment, and express ideas that challenge their corruption, one won’t be able to build coalitions to defend oneself and one’s fellow citizens from corruption. Since Confucius and Mencius agree about the virtues that perfect someone, such as truthfulness, acting with righteousness and humaneness, which require the freedom to speak, think, associate, and act, they should be able to support the legal rights that protect such practices. Just as there are limits to freedom of speech in the West, for example, prohibiting one from yelling “fire” in a crowded theater, which may lead to a stampede harming many, Confucians may limit freedom of speech to exclude slander, for instance. Thus, one’s right (moral and legal) to free speech for Confucians would be protected as long as one doesn’t abuse that freedom by slandering others. 4 Aristotle and Confucius on the choice of means toward the highest good Thus far, I have shown how Tu’s and Chan’s attempts to transform Confu­ cianism for modernity by introducing liberalism or individual autonomy are incompatible with Confucianism. Instead, I’ve offered liberal resources from Confucianism itself, which are compatible with the exercise of human rights. I now draw on Aristotle’s view of choice to illustrate why the kind of liberal­ ism Tu and Chan propose won’t work for an ethics of virtue, and hence, can’t be endorsed by Confucianism. Choice, for Aristotle, is bound up with our characters. Good choices make us virtuous and vice versa. Choices are about the things we can do rather than things that are by nature, from necessity, eternal, or not up to us.44

Confucian perfectionism and resources for liberties

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For example, scientific and mathematical objects are not what we deliberate about and choose, nor do we choose things that are by chance, already in the past, or affairs of other nations. Most importantly, Aristotle holds that choice is not about ends, but rather, about the means that promote the ends. For example, doctors don’t choose if they will heal, but rather, how they will heal. Not choosing the end of an expertise applies universally to all practices for Aristotle. Accordingly, not everything is a matter of choice for Aristotle. According to Aristotle, that the human good is to lead a flourishing life is not a matter of choice. Rather, making fine choices about how we should act so that we can reach our end of a flourishing life is proper to choice. Even though the kind of rationality involved in choice is instrumental, for we are always deliberating about the means to an end, such reasoning does not proceed indefinitely, otherwise, it would lead to the frustration of our desires for Aristotle. For Aristotle, choice is always guided by the highest end, which in turn enables us to rank order the intermediate goods or ends, so that we know which actions are prior to others. Aristotle and the Confucians share the belief that there is a highest good for human beings. This is the life of virtue for each: achieving the intellec­ tual virtues of practical wisdom (phronêsis) and wisdom (sophia) for Aristo­ tle,45 and humaneness (ren) for Confucius and Mencius. True to Aristotle’s analysis about choice, even though one may choose various actions at vari­ ous times to achieve the virtues, for example, courageous, generous, or just actions, depending on one’s circumstance, the highest good is not open to choice.46 However, this doesn’t mean that we can do away with choice as some Confucian commentators suggest. These commentators go so far as to say that there isn’t even a self who chooses because one is simply one’s roles or relations. Contrary to these commentators, choice is required insofar as Confucius espouses virtuous acts like acting with reciprocity (shu 恕) and righteousness (yi 義), for there must be a self with a history who can judge what is shu and yi for his role and circumstances.47 Because no general rule can prescribe the correct action for every situation to enable one to reach the final end of being ren (仁 humane), Confucians can’t rely on their roles and relations without a self who chooses.48 Apart from the determinateness of the final end of virtue for Aristotle and the early Confucians, they also agree that vicious acts, for example, intemper­ ate, greedy, or cowardly acts, are always base. Accordingly, their virtue ethics forbid the kind of liberalism which entertain all presuppositions, beliefs, and dogmas (Tu), as well as the content-independent acts from any autonomous individual (Chan). It is when each of these authors overlooks the highest good in Confucianism, that is, ren, that he thinks that individual autonomy is the antidote to the problem in Confucianism. Hence, Tu recommends the value of sympathy rather than ren, when suggesting the most important value Confucianism has to offer.49 Likewise, Chan thinks that respecting people’s mistaken choices at times is the solution to Confucianism’s moral and pater­ nalistic values. Unfortunately, being sympathetic or respective of others,

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regardless of their mistakes, will not help them realize their highest good. Nor can these values remedy the problems of individual acquisitiveness and instrumental rationality that plague modernity. Instrumental rationality by itself offers no guidance for rank ordering one pursuit over another. What’s required is a standard that informs us about our highest goal, which in turn enables the rank ordering and choice of compet­ ing intermediate goals. For Aristotle and Confucius, the highest end is the life of virtue. Not only is the highest end some kind of virtue(s), but the means to this end are virtues too. On the one hand, virtues limit our choices. On the other hand, they offer guidance for a unified life—both individually and collectively. Aristotle and the early Confucians differ in their accounts for why each of their conceptions of virtue is correct. I’ve discussed their strengths and weak­ nesses elsewhere.50 What is clear from this discussion is that virtue ethics such as these are incompatible with an endorsement of liberalism and pluralism regarding conceptions of the good life. Some conceptions of the good life would be rejected because they are good neither for the individual nor for his community because they prohibit the development of virtue. Far from being paternalistic or intolerant, identifying and rejecting these alternatives are the strengths of Confucianism. Aristotle and Confucius offer a lesson: the choices of means affect one’s entire life; bad choices hinder one from doing well, while good choices enable one to flourish. The concern with rights no doubt played a part in fueling Tu’s and Chan’s interest in creating a more liberal Confucianism. However, it is not the free­ dom to choose per se (based on the uneducated pursuit of short-term pleas­ ures) that can offer the standards for why human beings ought to have certain rights. Rather, rights are always moral and are justified by ultimate goods, those which make us virtuous and enable our flourishing. Identifying the correct ultimate good and denying our choice with respect to it, yet stressing the significance of choices of means to this good, grounds liberties for Con­ fucianism. These too, can be liberties that are to be protected by legal rights. Notes 1 I choose to discuss Tu and later on Joseph Chan because their understanding of “autonomy” is akin to what Western societies mean by this term. On the other hand, I exclude Wang Yunping’s “Autonomy and the Confucian Moral Person,” Journal of Chinese Philosophy 29:2 (June  2002): 251–268, because the author understands autonomy as “independent choice” bound by a prescribed concep­ tion of the good life. See 260, 262 & 264. I don’t think that Wang’s redefinition of “autonomy” leaves us with the same kind of “autonomy” that truly challenges Confucianism’s relevance for modernity. 2 Dao: A Journal of Comparative Philosophy, Vol. II, No. 1(2002): 1–20, 18. 3 Ibid., 4. 4 Ibid., 5. 5 Ibid. 6 Ibid.

Confucian perfectionism and resources for liberties 7 8 9 10 11

12 13 14 15 16

17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

265

Ibid.

Ibid., 6.

Ibid.

Ibid. That an exemplary person is always to subordinate himself to the community in the sense of considering the good of the community in his actions is evident in the following analects: 5.26, 14.42, and 12.1 (in general all discussions of li [ritual propriety—these are the customary prescribed behaviors for various roles and relations, for example, that children are to be filial toward parents, and parents are to love and care for children] as these not only affect one’s determinate rela­ tions to others but also the indeterminate relations when others are affected by seeing one’s actions). All references and translations of Confucius, unless other­ wise stated, with modifications, are from R. T. Ames and H. Rosemont, Jr., trans., The Analects of Confucius: A Philosophical Translation Ballantine Books (1998). Hereafter, “Analects.” Unless stated otherwise, all references and translations of Mencius’s text with modifications are from Bryan W. Van Norden, trans. The Essential Mengzi (Indi­ anapolis: Hackett Publishing Co., 2009). Hereafter, “Mengzi.” Tu, “Confucianism and Liberalism,” op cit., 17–18. That Mencius also emphasizes the virtue of reciprocity can be seen in his remark, “Do not do that which you would not do; do not desire that which you would not desire. Simply be like this” (7A 17.1). Heiner Roetz, “Confucianism between Tradition and Modernity, Religion, and Secularization: Questions to Tu Weiming,” Dao: A Journal of Comparative Phi­ losophy 7 (2008): 367–380, 371. Ibid., 372. Even though I agree with Roetz’s critique of Tu’s view of Confucian modernity, I disagree with his solution to ally Confucian ethics with a modern reformulated “principle of subjectivity” (which strives to navigate between an iso­ lated individual and his subsumption under the collective). I believe that Roetz’s solution is still affected by the kind of autonomy that is incompatible with Con­ fucianism’s ethics of virtue with its orientation toward a final end of the highest virtue of humaneness or benevolence (ren). Joseph Chan, Confucian Perfectionism: A Political Philosophy for Modern Times (Princeton, NJ: Princeton University Press, 2014), 132. Ibid., 133. Ibid., 134. Ibid., 134–135. Ibid., 136–141. Ibid., 135. Ibid., 136. Ibid. Ibid. Ibid., 144. Ibid., 146. Ibid., 149. Ibid., 151. Ibid. Ibid. Ibid. Ibid., 152. Ibid., 156. For more on remonstrating with one’s parents, see my “Confucian Values and Resources for Justice,” in Justice, ed. Mark LeBar (London: Oxford University Press, 2018), 237–260.

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36 I owe the formulation of these two sentences to Fr. J. D. Rooney.

37 Joseph Chan, Confucian Perfectionism: A Political Philosophy for Modern Times,

156. 38 See Analects 1.2 for Confucius’s view on the same point. 39 For more on the significance of self-determination in Confucianism, see my “Con­ fucian Values and Resources for Justice,” in Justice, ed. Mark LeBar (London: Oxford University Press, 2018), 237–260. 40 For the continuity between the family and the state, see Analects 2.21 and Joseph Chan, “Confucian Attitudes Toward Ethical Pluralism,” in Confucian Political Ethics, ed. Daniel A. Bell (Princeton, NJ: Princeton University Press, 2008), 113– 138, especially 123, where he says: “There is no fundamental separation between the familial, the social, and the political spheres.” For an instance of a state insti­ tution’s ability to intervene in familial affairs gone awry, see the National Council on Problem Gambling services in Singapore, www.ncpg.org.sg/services/family­ exclusions-and-visit-limits/apply-family-exclusion-order, which enables family members to apply for the “family exclusion order” to prevent family members with gambling addictions that affect their familial relationships from engaging in gambling activities. 41 See Analects 2.3. 42 See Tongdong Bai, “What to Do in an Unjust State?: On Confucius’s and Socrates’s Views on Political Duty,” Dao: A Journal of Comparative Philosophy 9, no. 4 (2010): 375–390. 43 See my “Justifying Human Rights in Confucianism,” in The Bloomsbury Research Handbook of Early Chinese Ethics and Political Philosophy, ed. Alexus McLeod (London: Bloomsbury Academic, 2019), 267–285; “Confucian Values and Human Rights,” Review of Metaphysics (September 2013): 3–27; “A Confucian Approach to Human Rights,” History of Philosophy Quarterly 21, no. 4 (Octo­ ber 2004): 337–356; and “Rival Confucian Rights: Left or Right Confucianism?” International Philosophical Quarterly, 51, no. 1(2011): 5–22. 44 See Nicomachean Ethics Book III, chapters 2–3. All references to Aristotle’s Nico­ machean Ethics are from, Nicomachean Ethics, trans. Terence Irwin (Indianapo­ lis, IN: Hackett, 1999). 45 See Nicomachean Ethics, Book I, chapter 7 and Book X, chapters 7–8. 46 Teemu H. Ruskola, “Moral Choice in the Analects: A  Way without a Cross­ roads?” Journal of Chinese Philosophy 19 (1992): 285–296, is correct in arguing that there is a choice of means for Confucius. However, in arguing that there is a choice of means but not of ends for Aristotle and Confucius, I disagree with Ruskola’s assertion that such a choice of means is the same as the ultimate end because it enables one to stay on the Way. Ruskola’s view that the means coincides with the ultimate end stems, I think, from his understanding that the ultimate end is “so abstract . . . that its content depends entirely on how we conceive of the means by which it is to be achieved” (294). Contrary to Ruskola, I think that the ultimate end or highest good is determinate for both Aristotle and Confucius, as I have specified at the beginning of this paragraph. Similarly, to the extent that Edward Slingerland, “Virtue Ethics, The Ana­ lects, and the Problem of Commensurability,” Journal of Religious Ethics 29, no. 1 (2001): 97–125, maintains that Confucius’ virtuous practices (like those of other virtue ethicists) are only intelligible in the context of the “overarching telos” of ren (113), he is correct in his understanding of the means and ultimate end relation for Confucius. However, he errs in maintaining that ren is indeter­ minate and vague for Confucius (114) because as a telos, it cannot be determined for an individual until he has completed his life (115). As he puts it, “Ren is thus often portrayed as the dimly perceived and ever-receding goal of a work

Confucian perfectionism and resources for liberties

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eternally in progress” (115). Slingerland’s acknowledgment of an ultimate telos for Confucius, along with his characterization of this telos of ren as vague, are of a piece with his understanding that virtue ethics requires a certain objectivity and universality, which objectivity is not to be found in the kind of metaphysical biology Aristotle’s fixed human nature offers. Agreeing with thinkers like Charles Taylor and Stuart Hampshire, Slingerland favors an “open-ended conception of shared human nature as ‘a set of shared potentialities . . . not arbitrarily asserted or assumed, but rather . . . tested by argument and evidence of many different kinds’ ” (119). Like Ruskola, I think that Slingerland is mistaken in interpreting Confucius’ ultimate end as something that is not already determinate. Such an interpretation undermines the work that this ultimate end does for our choices of means. It essentially makes the ultimate end a matter of choice too. In my under­ standing, that our end in life consists of the ultimate virtue(s) for Confucius and Aristotle means that these ultimate virtues cannot in turn be subject to choice. 47 Herbert Fingarette, “The Problem of the Self in the Analects,” Philosophy East & West 29 (1979): 129–140, is a strong proponent of the no-self view in Confucian­ ism. I discuss the problems with his view and commentators who propose the suf­ ficiency of roles and relations without a self in Remastering Morals with Aristotle and Confucius (Cambridge University Press, 2007), chapter 5. See my “Defining Ren for Confucius,” Review of Roger Ames’ Confucian Role Ethics: A Vocabu­ lary, Frontiers of Philosophy in China, 7, no. 4 (2012) for my arguments against Ames’s emphasis on particular roles over the virtues. 48 Roles and relationships are reliable only when there are no conflicts. For details of this argument, see “Rival Confucian Rights: Left or Right Confucianism?” Inter­ national Philosophical Quarterly 51, no. 1(March 2011): 5–22, and Remastering Morals with Aristotle and Confucius, chapter 4. 49 “Confucianism and Liberalism,” 13. 50 Remastering Morals with Aristotle and Confucius (Cambridge University Press, 2007) and “The Phronimos and the Sage,” in Oxford Handbook of Virtue, ed. Nancy E. Snow (Oxford: Oxford University Press, 2018).

References Ames, R. T. and Rosemont, Jr. 1998. The Analects of Confucius: A  Philosophical Translation. New York: Ballantine Books. Aristotle. 1999. Nicomachean Ethics. trans. by Terence Irwin. Indianapolis, IN: Hackett Publishing Co. Bai, Tongdong. 2010. “What to Do in an Unjust State? On Confucius’s and Socrates’s Views on Political Duty,” Dao: A Journal of Comparative Philosophy 9:4, 375–390. Chan, Joseph. 2008. “Confucian Attitudes Toward Ethical Pluralism,” in Confu­ cian Political Ethics, ed. Daniel A. Bell. Princeton, NJ: Princeton University Press, 113–38. ———. 2014. Confucian Perfectionism: A  Political Philosophy for Modern Times. Princeton, NJ: Princeton University Press. Mencius. 2009. The Essential Mengzi. trans. by Bryan W. Van Norden. Indianapolis, IN: Hackett Publishing Co. Roetz, Heiner. 2008. “Confucianism Between Tradition and Modernity, Religion, and Secularization: Questions to Tu Weiming,” Dao: A  Journal of Comparative Philosophy 7, 367–380. Ruskola, Teemu H. 1992. “Moral Choice in the Analects: A Way Without a Cross­ roads?,” Journal of Chinese Philosophy 19, 285–296.

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Sim, May. 2004. “A Confucian Approach to Human Rights,” History of Philosophy Quarterly 21:4, 337–356. ———. 2007. Remastering Morals with Aristotle and Confucius. Cambridge: Cambridge University Press. ———. 2011. “Rival Confucian Rights: Left or Right Confucianism?,” International Philosophical Quarterly 51:1, 5–22. ———. 2012. “Review of Roger Ames’s “Confucian Role Ethics,” Frontiers of Phi­ losophy in China 7:4, 616–621. ———. 2013. “Confucian Values and Human Rights,” Review of Metaphysics, 3–27. ———. 2018. “The Phronimos and the Sage,” in Oxford Handbook of Virtue, ed. by Nancy E. Snow. Oxford: Oxford University Press. ———. 2018. “Confucian Values and Resources for Justice,” in Justice, ed. by Mark LeBar. London: Oxford University Press, 237–260. ———. 2019. “Justifying Human Rights in Confucianism,” in The Bloomsbury Research Handbook of Early Chinese Ethics and Political Philosophy, ed. by Alexus McLeod. London: Bloomsbury Academic, 267–285. Slingerland, Edward. 2001. “Virtue Ethics, the Analects, and the Problem of Com­ mensurability,” Journal of Religious Ethics 29:1, 97–125. Tu, Wei-Ming. 2002. “Confucianism and Liberalism,” Dao: A Journal of Compara­ tive Philosophy II:1, 1–20. Wang, Yunping. 2002. “Autonomy and the Confucian Moral Person,” Journal of Chinese Philosophy 29:2, 251–268.

Index

‘n’ with number stands for ‘notes’. actualist public justification (APJ)

87–89; reasonable citizens 89; in

terms of reasonableness 90

Affirmation Act (1695) 184

African Union 54–55

AI systems 152–153

America’s founding fathers 10; authority

and scope of civil law 243; conception of freedom 247; natural rights 245–246; political freedom 247; religious and political authority 241–243; religious freedom 243–244; understanding of liberty 245–247 Anderson, Elizabeth 163, 165–166

Anglo-commonwealth common law 76

anti-perfectionist public reason

liberalism 7

appraisal respect 167

Aquinas, St Thomas 74, 77, 192

Aristotle 222–223; aspect of freedom

226–227; city (polis) 223–224; city’s “way of life” (bios) 224; classification for regimes 224–225; conception of citizenship 230–231; conceptions of virtue 264; critical evaluation of democracy 10; distinction between nomos and psephisma 227; generic regime, features of 231–232; human beings as rational animals 223, 225; philosophy of human things 223; picture of democracy 224–228, 232–234; political science 10; relationship between regime

and citizenship 225; summation argument 228–230; view of choice 262–263 Atiyah, Patrick 66

attributing non-autonomy 174

Austin, John 66, 68; positivism 66–67;

The Province of Jurisprudence

Determined 66

authoritativeness constraints 82, 84–86, 90, 94–95 autonomy 8

Bentham, Jeremy 19, 33, 66, 226;

classical utilitarianism 205

Berlin, Isaiah 25–26, 197

Besch, Thomas M. 6

Böckenförde Dilemma 222

Boettcher, James W. 157

BREXIT Withdrawal Agreement 54

Capitol Hill riots, January 6th 1 Catholic Church 53, 123–124 Catholicism 248n7 Catholic Relief Act (1829) 184

Chambers, Simone 156

Chan, Joseph 133, 136–140, 251–252, 262–264 Charles II 18

Cherry, Kevin 231

Christianity 241–243 Christian political authority 243

Christian understanding of human

flourishing 152

Christman, John 165–166, 168–170 citizenship: in ancient city 247n4; Aristotelian conception of 230–231; democratic citizenship,

270

Index

duties of 154–155; relationship between regime and 225

civic virtues 122

Clanton 155

Clanton, J. Caleb 148–149 classical Confucian education 121–122; aspects of Confucian rituals 122–123 classical Greek democracy 10

classical Greek political thought 4

classical liberal arts education 120–122 classical liberalism 2, 9, 247n3;

conception of freedom 4;

methodological individualism 5;

perfectionism and 5

classical liberalism of Victorian era

63; contract jurisprudence

65; freedom and sanctity 76;

freedom of contract and sanctity

of contract 76; ideological and

jurisprudential emphasis 66; will

theory of contractual obligation

65–67, 76

common good: determinationes for 55;

law of contract and 73–76; legal

and social norms 192; political

community’s 47–48; relative

primacy of 48; transnational 53,

55

community’s laws 74–75 comprehensive moral doctrine 132–133 comprehensive perfectionism 7–8, 131,

133–135

conceptions of good life 30

Confucian ethics 10

Confucianism 4, 10–11; autonomy

or liberalism in 251; Chan’s defense of Confucian liberalism 255–258; classical 261; conceptions of virtue 264; Confucian modernity 255; deep personal relations 138, 260; degree of freedom in 251; degree of liberal values in 251; filial piety 138–139; humaneness/ benevolence and righteousness 254–255; liberal values in 261; moderate perfectionism and 138–139; moral autonomy and civil liberties in 255–257; openness to an individual’s initiative 259; positive contributions 137; resources for liberties 258–262; rights in

254; ruler’s obligation to people 252–253; state promotion of 138–139; Tu Wei-ming arguments 252–255; view of choice 262–263 Confucian perfectionism 8, 136–140 Confucian rituals 122–123 consensus hallmarks of well-being (CHW) 211–216

constitutive discursive standing 83–84

content-neutral conceptions 170

contestatory measures 24

contract jurisprudence 65

contract law 75–76; practice of

promise-making 73–76; on wider

common good 73–76

contractual obligation 6, 63–64, 76–77;

will theory of 5, 63, 67

convergence model of justification 115,

119–120, 124

cooperative action 6

core religious convictions 154–158

corrective justice 226

Coulanges, Fustel de 241

Couto, Alexandra 3

Darwall-type second-personal recognition respect 89

Daventry, Andrea 173

decision-maker laws: appointment

of domain-general and domain-specific authorities 24–25; contestatory power 24; disciplinary control 24; framework of control 23–24; rule of common reasons 24; selectional control 24–25; toughluck test 22–23 decision-taker laws: basic liberties

20; eyeball test of free status

21–22; protection of citizens 21;

resourcing citizens 20–21; rules

of ownership 20; rules of road

20

democratic citizenship, duties of 154–155 democratic deliberation 148–150; duty of responsiveness 154, 156

Deneen, Patrick 1, 3

Deneen’s claims about public reason

liberalism 116–117

Deneen, Patrick 1, 116

determinatio 49, 51

determinatio concept 48, 51, 55

Index dignity of the human person 250n28 disciplinary measures 24

discursive equity 86, 89–92; equal discursive respect 92; formal and substantive 90–92 discursive inequality 90

discursive purchase 84–85; formal

discursive equality 85;

substantive discursive

equality 85

discursive respect 88–89 Discursive Sufficientarianism 93

distributive justice 226

Dolan, Paul 215

domain-general authorities 24–25 domain-specific authorities 25

domain-specific formulations of

neutrality requirement: free

speech and expression 39–41;

language 36–38; religion 34–36;

restrictive mode of state action

41

Eberle, Christopher 149, 155

Enlightenment era 67–69; power of

reason 67–69; practical reason

68–69; theoretical reason 69

equal discursive respect 92

equality 8

fallibilism 8, 147; core religious convictions 154–158; deliberation requirement 148–150; religious political arguments 150–154 fallible human judgment 151

fallible-inquiry requirement 149

Finnis, John 70, 224

Floyd, George 1

formal discursive equality 85

Forst, Rainer 181–182 freedom: of contract 18; liberal view of 15; as noninterference 15; republican or neo-republican approach 16–18 free person 17–18 free speech and expression 39–41;

alternative views 40–41;

enablements/furtherings 40;

perfectionist defense of

39–40; restrictions/hinderings

40–41; viewpoint neutrality 39,

43n33

Fried, Charles 73

271

Gaus, Gerald 100 German Verfassungsschutz 111n25 government power 197–198 Hamilton, Alexander 245–246; “The Farmer Refuted” essay 245; understanding of natural rights 245–246 hard-drug addiction 133

Henning, Christoph 3

Hohfeld, W.N. 193

human relationships 132

human rights 9, 11, 190

Hurka, Thomas 131

ICJ 54

inclusivism 147

individual freedom 11

instrumental rationality 264

interference 15

International Air Transport Association

53

international legal system 52–56 international relations 45

international rule of law 45

International Telecommunications

Union 54

intrinsic human goods 9, 190–192, 194

Jefferson, Thomas 243, 245

Jessel, Sir George 65

Jews Relief Act (1858) 184

Jiang Qing 131

Justice as Fairness (JF) 86–88; hypothetical

well-ordered society 87

justification practice 83;

authoritativeness constraints 84

justificatory reasons 100

Kindersley, Sir Richard 65–66 laissez-faire ideal of society 25

laissez-faire society 4

language, neutral treatment of 36–38,

43n30; aggregation concern

37; just or fair treatment 37;

non-neutral language policy 37;

underlying values 37

Larmore, Charles 88

legal institutions: structure and

justification of 5

liberal governance 2

liberal institutions: legitimacy and

relevance of 1

272

Index

liberal international order 45; conditions of transnational dependency 53; crisis and pluralism in 56–58; determinatio concept 49, 51; human sociability and governance 46–49; implications of peoples’ selfdetermination 51–52; internal goods and common goods 46–47; international laws and 52–56; jus cogens norms 55–57; jus gentium principles (law of nations) 48, 50–51; jus inter gentes (law between nations) 52; jus naturale (natural law) 48, 57–58; legal doctrine of sovereignty 50–51; nation-states’ perspective 49–52; non-governmental organizations and 53; posited standards (determinatio) 48; practical rationality 46; role of international institutions 52–56; self-determination 45, 51–52 liberalism: convergence account of 119–120; criticism 115–119; perfectionism and 3–4; in political philosophy 2; Rawlsian model of 2–3 liberal principle of legitimacy (LPL) 88 liberal public justification 6–7, 81–82, 95 liberal values 3–4, 8, 10–11, 46, 102–106, 108, 251, 261 liberties 245–246 Lind, John 19 Locke, John 2, 243; A Letter Concerning Toleration 243 lying 73 Macedo, Stephen 88 MacIntyre, Alasdair 3, 46–48, 50, 55, 114, 194; criticism of modern liberal government 115; objections to rights discourse 195 Madison, James 243–244 Marcuse, Herbert 180 Maritain, Jacques 74 maximalist sufficiency 93 Mencius 121, 253–254, 259–262 Mill, John Stuart 2, 4, 39 minimalist discursive sufficientarianism 93–94

minimalist sufficiency 93 moderate perfectionism 7–8, 131–136, 141n13; citizens’ political justification and 135; criticism of 135–136; difference between comprehensive and 133; value of civility 133–134 moderate perfectionist judgments 132 nation-states 49–52; concept of determinatio 51; institutions’ authority 50; jus gentium principles 50–51, 58; justificatory and explanatory role 49–50; legitimacy of state institutions 50; politics of local communities 50; relatively sufficient polity 49 NATO 54–55 natural law 193–194, 245–246; accounts of intrinsic goods 191; conception of moral reasoning 191–192; conception of rights 195–197; difference between classical liberalism and 198; natural rights from perspective of 196; negative freedom 197; right to support 197; view of politics 198 natural rights 193–195, 245–246 negative freedom 197 negative liberty 183–186 neoliberalism 15 Neutrality Requirement: characterization of state neutrality 33; conceptions of good 32; domain-specific formulations 34; in political matters 32; requirement of state actors 32; as three-place relation 31–32 Newman, John Henry 120–122 Novak, Michael 74 Nussbaum, Martha 118, 172 oppressive socialization 166 Organization of American States 54 OSCE 55 Paine, Thomas 180 Pallikkathayil, Japa 154 Penn, William 181; Peoples Ancient and Just Liberties Asserted 184 perfectionism 3, 9

Index perfectionism and anti-perfectionism 130–131; comprehensive perfectionism 131; Confucian perfectionism 136–140; extreme perfectionism 137–138; moderate perfectionism 131–136 perfectionist evaluative standards 100

perfectionist intuitions 6

perfectionist justifications 104–106,

108; anti 101

perfectionist liberalism 4, 168

permissible purchase inequality 93–95 pluralism 147

political authority 243

political community 48

political community concept 49

political community’s common good 47–48 political justification 132–136 political liberalism 6, 10, 86–87, 168,

171–172; justificatory weight

89–90; Larmore’s view of equal

(discursive) respect in 90–91;

Rawls-type 81, 83; reasonable

and unreasonable conceptions of

good 172

political perfectionism 33, 36;

rapprochement between state

neutrality and 33

political perfectionists 30

positive freedom 197

positive morality 67

practical reason 77, 108

pragmatic subjectivism 206–209 promise-making 6, 64, 71–73, 77;

common good of political

community in 64; framework

of community and friendship

71–73; as part of common good

73, 75; social practice of 71–75

Protestant Reformation 69

public deliberation: civic virtue and education in 117; convergence account 119–120; education and institutional support for 120–124 public justification 7, 81, 89;

actualist 90; aims of 85;

authoritativeness constraints

82, 85–86, 90; conception-

constraining 83; constituency

82; convergence account of

119–120; convergence views

of 115; Rawls’ vision of 116;

273

requirement of actualist 87;

restrictive conception of 108;

robustly 83, 87; role in social

practice 82; status 82

public reasoning 108–109 public reason liberalism 6–7, 92, 95,

99; anti-perfectionist 7; anti-

perfectionist and perfectionist

104–109; consensus accounts

of 7; consensus model of 100;

Deneen’s claims about 116;

formulation of reasons 102–103;

fundamental moral ideal of

107–108; justification of actions

by liberal states 103, 111n16;

justification of funding 105,

112n26; liberal democracy and

103; moral ideal of 106–109;

with political perfectionism

7; political perfectionism

and 101–103; Quong’s

reasoning 100, 104–109; racist

justifications of political measure

104; Rawls’ version of 116;

standard interpretation of 114

Pufendorf, Samuel von 69

purchase inequality 6

Putin, President 45

Quong, Jonathan 100, 104–109, 119,

141n28; argument against

perfectionist public reason

liberalism 104, 107–108;

inadmissibility of standard

perfectionist justifications

108, 112n36; public reasoning

108–109; unreasonable

perfectionist doctrines 106

racist justifications of a political measure

104

Rawls, John 1, 25, 32, 114, 184;

account of reasonable

disagreement 131; approach to

public reason 119; commitment

to discursive respect 88;

conception of political justice

86; Political Liberalism 2;

politically basic reasonableness

90; reasonable citizens 86–87;

A Theory of Justice 2; vision of

public justification 116

Raz, Joseph 3, 131

reasonable citizens 86–87, 89

274

Index

reasonable pluralism 3, 100, 104–106,

111n12, 120

recipients of justice 88

recognition disrespect 167

recognition respect 167, 173–174 recognitive discursive minimum 94

relational egalitarianism 8

relational egalitarians 163

relational inequality 165

relational theories of justice 163; perfectionist challenges 168–175; relational egalitarianism 165–166, 170–171; theories of equality and autonomy 165–168 religions, neutrality principle of

34–36; membership in religious

group 35–36; participation in

religious practice 35; religious

identification, importance of 36;

state neutrality 36

religious freedom 179

religious liberty 10

religious political arguments 150–154; Christian ideas 152–153; contestability of 151; internal disputes and disagreements 151; nature of 151–152; political implications 150–151 religious reasons 8

religious worship 244

republican conception of freedom 16–18;

during American revolution

18–19; in a choice 16–17; during

English revolution 18; history

18–19; instances of domination

17; as non-domination 16–18; as

non-interference 16–17; in person

17–18; in Rome 18

republican democracy 22–25 republicanism 4; American Founders’ 247n3 republican social justice 19–22 restricted state neutrality 33

Richards, David A.J. 185

rights, notions of 8

rights discourse 195–197 Rights of Man 180

Roetz, Heiner 255

Rousseau 23

rule-based order of governance 45

Russian foreign policy 45, 57

Russia’s invasion of Ukraine, 2022 5,

45, 57

Sacramental Test Act (1828) 184

Sandel, Michael 3

sanitation programs 205

second-personal authority 89

selectional measures 24–25 self-determination 38, 45, 51–52;

implications of 51; moral

right of 51; national 45;

theory 214

self-respect 166–167, 174

self-trust 166

Seligman, M. 215

Sher, George 3

Shklar, Judith 186

Sidney, Algernon 18

Simpson, A.W.B. 63, 76

social equality 171

social hierarchy 165

social morality rules 42n10 social oppression 166

Society of Friends 181

solidarity 48–49 sovereignty 50–51 Stamp Act 18

state-funded scholarship programs,

Germany 105

state neutrality 30

state sovereignty 49

structural injustices 163

subsidiarity 48–49 substantive discursive equality 85

Tahzib, Collis 135–136 Taylor, Charles 3, 198

Tiberius, Valerie 207

toleration 9, 179; civil liberties and 181;

conceptual confusion between

tolerance and 182; critiques of

180; as expansive and protean

183; Forst’s definition 181–182;

minimal guarantees 185; origins

180–183; relational nature

of 185–186; religious 181,

184–185; virtue of 182–183

Toleration Act, England 180

transnational community and order 54

Tu Wei-ming 251–255, 262–264; Analects and Mengzi 255; Confucian modernity 255; ideals of liberalism 258–259; ruler’s obligation to people 252–253 Two Concepts of Liberty (Isaiah Berlin)

15

Index UN General Assembly resolutions 54

unjustified appraisal disrespect 168

UN Security Council 45, 54

Vallier, Kevin 3, 100, 120

Vermeule, Adrian 3

Victorian English Law School 66

wage slaves 19

Walker, T. A. 66

Wall, Steven 133–134

Walzer, Michael 3

Washington, George 179

well-being policy (WBP) 205–206;

Bhutan’s “Gross National Happiness” agenda 213; convergence on personal welfare values 209–210; data-free 213–214; examples of consensus

275

items 214–216; OECD’s Better Life Initiative 217n2

WHO 54

Why Liberalism Failed (Deneen) 1, 116

wider common good of political

community 73–76

will theory 63, 65–67, 69, 76

Wilson, James 244–246; Declaration

of Independence 244; uses of natural liberty 249n21

Wolff, Robert Paul 180

women appraisal 168

World Organization of the Scout

Movement 53

Wyatt, John 152–154

Young, Iris 165

Zhu Xi 121