Liberal Neutrality: Treating Citizens as Free and Equal 9783110255195, 9783110255171

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Alexa Zellentin Liberal Neutrality

Ideen & Argumente

Herausgegeben von Wilfried Hinsch und Lutz Wingert

Alexa Zellentin

Liberal Neutrality

Treating Citizens as Free and Equal

Gedruckt mit freundlicher Unterstützung der Karl-Franzens-Universität Graz.

isbn 978-3-11-025517-1 e-isbn 978-3-11-025519-5 Library of Congress Cataloging-in-Publication Data A CIP catalog record for this book has been applied for at the Library of Congress Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.dnb.de. © 2012 Walter de Gruyter GmbH & Co. KG, Berlin/Boston Typesetting: jürgen ullrich typosatz, Nördlingen Printing: Hubert & Co. GmbH & Co. KG, Göttingen Printed on acid-free paper Printed in Germany www.degruyter.com

Contents Acknowledgements

IX

1 Introduction 1 1.1 The challenges of diversity 1.2 Leitkultur 2 1.3 Liberal neutrality 10

1

2 Defining liberal neutrality 12 2.1 Neutrality is an ill-defined term 12 2.2 Conceptions of neutrality 15 2.2.1 Neutrality of impact 16 2.2.2 Neutrality as equality of opportunity 18 2.2.3 Justificatory neutrality 21 2.3 Contexts of neutrality 25 2.3.1 Constitutional essentials 26 2.3.2 Political decision-making 28 2.3.2.1 Neutrality as respectful non-identification 2.3.2.2 Relational neutrality 31 2.3.3 Neutral behaviour of state officials 33 2.4 Neutrality as a two-fold concept 39

30

3 The right and the good 42 3.1 Neutrality versus toleration 42 3.2 The right versus the good 44 3.3 Theories of rights 46 3.4 Thin versus thick conceptions of the good 49 3.4.1 Rawls’s thin theory of the good 53 3.4.2 Dworkin’s thin theory of the good 56 3.5 Another complication 58 3.6 Comprehensive versus political conceptions 59 3.7 The need for a thin political theory of the good 62 4 Grounding neutrality 64 4.1 Society as a fair system of cooperation over time 66 4.2 Citizens as equipped with two moral powers 67 4.3 Citizens as free and equal persons 69 4.3.1 Citizens as free 69 4.3.2 Citizens as equal 74

VI

4.4 4.5

Contents

Citizens as free and equal as thin political conception The limits of the project 82

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5 Justifying the respect element 84 5.1 Coercive power and the state 85 5.1.1 All state action involves coercion 86 5.1.2 All state action needs to be justifiable to the citizens affected 5.1.3 The state has no right to do wrong 88 5.2 Justifying coercion 91 5.2.1 Reasonable agreement justifies coercion 91 5.2.1.1 The addressees of justification 92 5.2.1.2 The scope of the need for justification 93 5.2.1.3 The criteria for reasonable acceptability 95 5.2.1.4 What citizens can be reasonably expected to agree on 97 5.2.2 Protecting rights justifies coercion 99 5.2.2.1 Interest theories of rights 99 5.2.2.2 Choice theories of rights 100 5.2.2.3 Common ground 101 5.2.3 Protecting rights is the only justification for coercion 102 5.2.3.1 The right to be left alone 102 5.2.3.2 Reasons for state action have to outweigh the right to be left alone 108 5.3 The respect element of neutrality 111 6 Justifying the fairness element 112 6.1 Treating people as equals 112 6.2 Rawls’s conception of citizens as equal 114 6.3 Treating citizens as equals with regard to their two moral powers 116 6.4 Respecting the two moral powers equally 117 6.4.1 Respecting the capacity for the right 118 6.4.2 Respecting the capacity for the good 121 6.5 Formal versus fair political participation 123 6.5.1 Cultural differences 126 6.5.2 The implementation of neutrally justified rules 131 6.6 The need to be aware of differences 136

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7 Implementing liberal neutrality 138 7.1 Justificatory neutrality 139 7.1.1 Citizens as free 140 7.1.2 Citizens as equal 142 7.1.3 Enabling cooperation 145 7.1.4 Fair cooperation 146 7.1.5 The scope and limits of justificatory neutrality 148 7.2 Procedural neutrality 149 7.2.1 Equal political rights and their fair value 149 7.2.2 Minority representation 151 7.2.3 Contestatory democracy 157 7.3 Liberal neutrality in the headscarf case 161 8 Conclusion 166 8.1 Summary of the argument 166 8.2 The three challenges of pluralism 8.3 The third challenge 169 9

Bibliography

Index

177

172

168

VII

Acknowledgements The motivation for this book goes back to a church history class at the University of Leipzig WS 2000/2001 when I was shocked to read in Uriel Tal’s book Christians and Jews in the Second Reich how certain liberal convictions regarding universal values and secularism supported rather than fought anti-Jewish sentiments in German society. Ever since I have tried to get a handle on what elements of liberalism have been misunderstood in this context and what features of liberalism allowed these misunderstandings. I thank Kurt Nowak for pointing me to this line of questioning and my supervisors, mentors, and examiners who helped me to develop my thoughts on the matter: Weyma Lübbe, Frank Dietrich, Daniel Butt, Mark Philp, David Leopold, G.A. Cohen, Simon Caney, Andrew Williams and most of all my DPhil supervisor Daniel McDermott. This book is based on my DPhil thesis, which would not have been possible without the financial support of my father, Rüdiger Zellentin, and would have been a lot harder without the departmental bursaries from the Department for Politics and International Relations, the Keble College Talbot fund scholarship, and the IHS fellowship. The thorough revisions turning a thesis into a book would not have been possible without the generous support and patience of Lukas Meyer at the Institut für Philosophie der Karl-Franzens-Universität Graz. While it is impossible to name everyone who deserves my gratitude, I want thank the following individuals for their inspiration and willingness to listen to my tangled ideas and frequent rants about neutrality: Jan Bertram, Kimberley Brownlee, Ian Carroll, Kathleen Collett, Lynn Dobson, Sarah Fine, Gabrielle Goldet, Clare Heyward, Wilfried Hinsch, Richard Hofmann, Robert Jubb, Peter Koller, Nora Kreft, Hugh Lazenby, Helen McCabe, Lukas Meyer, David Miller, Andrea Ploder, Angela Quartermaine, Ines Valdez, Claudia Reitinger, Miriam Ronzoni, Geneviève Rousseliere, Malini Roy, Pranay Sanklecha, Ben Saunders, Christian Schemmel, Julia Skorupska, Philippe Streit, Adam Swift, Patrick Tomlin, and the two anonymous reviewers for the series Ideen&Argumente. Special thanks go to Clare Heyward and Robert Jubb for intensive proofreading of several chapters and insightful feedback! The book is much improved for all your efforts. The responsibility for all the errors remains mine alone. An earlier version of Chapter 2 has been published as “Neutrality as a twofold concept” in Les Ateliers de l’Ethique, vol. 4, no. 2, 159–174. I am grateful to the editors and publishers for permission to use this material here. Final thanks are owed to my mum, Sabine v. Aderkas, my brothers and sisters, Gert, Georg, Jens, Nini, and Beni, and my friends, especially Bärbel, Katja, Silke, and Timo, for keeping me sane as well as stubborn.

1 Introduction 1.1 The challenges of diversity The terrorist attacks of 9/11, London, and Madrid triggered a change in the prominence and character of debates about immigration, integration, and multiculturalism in much of Europe. At least some of the terrorists had lived in western democratic societies for quite some time, had been educated there, and seemed ‘normal enough’ not to raise any suspicions before they set out to kill themselves as well as many others as possible for their fundamentalist cause. The phenomenon of home-grown Islamist terrorism focused attention on the failures of integration policies over the last few decades. How could it be that people who lived within liberal democratic societies could not see the advantages of a tolerant society? How come they used terrorism rather than making use of the ample opportunities for non-violent political protest and discussion? The following closer investigation into the situation of immigrants shed light on a number of problematic results of the current immigration policies in western society: awareness was drawn to the under-representation of immigrants and their descendants in higher education and positions of social, economical, and political influence, to illiberal and unconstitutional practices within immigration communities, to silent rejection and even hate crimes on sides of the host society, to crime rates and violence among young unemployed second or third generation immigrants, and to other problems which were known before but did not get much attention (apart from being exploited by right-wing propaganda). More earnest and constructive debates on how to deal with immigration, integration, and the consequences of failed integration erupted all over Europe.1 There are two fundamental questions: 1. What does it mean to treat immigrants and citizens with an immigrant background fairly? and 2. What can modern democracies reasonably expect from immigrants in terms of commitments to democratic values? The following discussion of liberal neutrality focuses on the first question but also has implications for the second.

1 For the German debate, see, for example, Daimagüler (2011): Kein schönes Land in dieser Zeit, Luft (2006): Abschied von Multikulti, Limbach (2005): Making Multiculturalism Work, Ates (2007): Der Multikulti-Irrtum, Lachman (2006): Tödliche Toleranz.

2

Introduction

However, it is important to notice that these challenges of modern pluralism are not limited to the context of immigration because immigration is not the only cause for pluralism; liberalisation and globalisation have also contributed to a greater diversity of lifestyles within one society. While I often refer to examples relating to particular the challenges posed by Muslim integration to Germany (and other western democracies), my theoretical focus is wider. I therefore reformulate the two questions presented above in a more general way: What does it mean to treat citizens with different conceptions of the good fairly? Which values can we expect all citizens to reasonably agree on? In short, how ought liberal democracies to respond to the challenges of pluralism? There are three challenges that I am particularly interested in: 1. How is it possible to justify political action towards citizens with different conceptions of the right and the good? 2. How can the state treat its citizens as equals despite their cultural differences? In particular, how is it possible to ensure that cultural difference does not translate into political disadvantages for members of minorities? 3. What does it take to establish and maintain a political culture which ensures the values underlying liberal democracy over time? These three challenges all relate to liberal neutrality, since they all refer to the question which values the liberal state may publicly endorse, actively promote, and can legitimately expect its citizens to adhere by and which not. The first aspect focuses on the terms of public reasoning for parliamentary decision making and legal reasoning. The second aspect refers to the danger that apolitical cultural differences might translate into political disadvantages and thus undermine the equal standing of democratic citizens.2 The third challenge refers to the practical need that those democratic values underlying political processes need to be firmly embedded in the value commitments of citizens for democracy to be feasible.

1.2 Leitkultur In the 2000s much of the German media debate on the appropriate reference point for these discussions on public values focused on one highly misleading

2 In my discussion I leave the context of immigration insofar as I focus on citizens with full citizen rights and leave out the very important question of what it takes for immigrants to become full citizens in the legal sense.

Leitkultur

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term: Leitkultur.3 Leitkultur literally translated means guiding or leading culture but is often also used in the sense of core or basic culture.4 In the debate it was widely assumed that the values which should be guiding political decision making are the basic rights and freedoms encompassed in the constitution. However, it was also assumed that the state cannot justify and guarantee these values. The state – in this view – depends on civil society to provide a moral foundation for these values and to anchor them in a social practice. The assumption is that only a unifying ‘guiding’ culture – a social practice rather than a constitutional document – can guarantee and protect these values over time. To secure its own foundations, the state thus should take efforts to support this culture and to accommodate its needs in its regulations. The most important question from this perspective is: which kind of cultural context is necessary to guarantee the necessary value commitments to sustain a free democratic society? The term Leitkultur was first used in this context by Bassam Tibi, who emmigrated to Germany from Syria at the age of 18 and has a keen awareness of the shortcomings in Germany’s practise of immigration and integration.5 He argues against two predominant approaches to integration in Germany: 1. monoculturalism, and 2. multiculturalism. He objects to monoculturalism in the sense of conservative demands to perpetuate the traditional German culture influenced by Christianity. In practice, even monoculturalism does not lead to the claim that all immigrants ought to convert to Christianity, wear Dirndls and Lederhosen, eat lots of Sauerkraut, and read Goethe or Ludwig Thoma. Rather it leads to the claim that, for example, whilst the interests of the Christian churches are considered in policy decisions, adherents of other religions have no claim that their needs are accommodated within public regulations (beyond the limited sphere protected by the individual right to freedom of religion). Mainstream society tolerates the cultural differences of minorities, but while there are, for example, attempts to include mainstream religious institutions and commitments in political debates relating to value judgements (e.g. abortion legislation), there is no such attention to minority views. Immigrants have the freedom to pursue their conception of the good in private and they are equipped with all the formal rights of citizenship, but they

3 For a wide selection of comments from German public intellectuals and politicians, see Lammert (ed.) (2006): Verfassung – Patriotismus – Leitkultur. 4 See Wikipedia (2008): Leitkultur. 5 See Tibi (1998): Europa ohne Identität and Tibi (2001): Leitkultur als Wertekonsens.

4

Introduction

are nonetheless expected to accept that public debate is conducted with reference to, and in the interest of, a particular culture which is not their own. On the other hand, Tibi also criticises a multiculturalism which welcomes the segmentation of society into more or less self-sufficient cultural groups and offers no joint value commitments and no overarching cultural identity. Tibi invoked the idea of a Leitkultur to find a common basis for all members of society, a set of commitments that transcends cultural or ethnic communities and overcomes the fragmentation of society into a set of ‘parallel societies.’ The commitment to a core set of values also aims at a legitimate basis to define limits of multicultural self-management and toleration and thus at not only banning practices like forced marriage or female circumcision, but also at addressing more subtle forms of discrimination and gender bias within groups which are not covered by criminal law. According to Tibi, immigrants – as well as all other citizens – should be required to respect the spirit of the law rather than merely abide by its letter. He is mostly concerned with Muslim immigrants to Germany and thus develops a conception of what he calls Euro-Islam, which refers to traditions within Islam which were highly influenced by Greek philosophy and especially the primacy of reason to show fellow Muslims how it is possible to combine the commitment to liberal democratic institutions with Islam.6 He argues that, in order to maintain a Muslim identity within a liberal and secular Europe, this identity itself has to adjust to accommodate for the values of reason and freedom.7 Tibi thus argues that, while immigrants cannot be required to assimilate, they can be encouraged to adjust their own value-system to fit with a general Leitkultur. He links the contents of Leitkultur to an idealised conception of modern European culture: ‘The values needed for a core culture are those of modernity: democracy, secularism, the Enlightenment, human rights, and civil society.’8 Tibi argues that, just as Catholics and Protestants had to change in

6 Tibi uses the term ‘das Primat der Vernunft’ at several points of his argument but never fully explains what he takes it to entail. Judging from the context and from the general use of the term in German, he seems to refer to the Aristotelian idea that human reason is the best foundation for shared value commitments. The primacy of reason thus stands in opposition to claims from religious revelations: human beings can figure out what is good and right without the help of any book of revelation. Rather, any religious text should be interpreted in the most reasonable way. Tibi emphasises that these ideas based on Aristotelian philosophy – which are the foundation of the European Enlightenment – initially found their way into European thought through Islamic thinkers like Avicenna/Ibn Sina and Averroës/Ibn Ruschd. See Tibi (1997): Der wahre Islam. 7 See Tibi (1998): Europa ohne Identität, Chapter 3 and 9. 8 Tibi (1998): Europa ohne Identität, 154 [translation by Wikipedia].

Leitkultur

5

view of the Enlightenment to accommodate the above commitments, Islam in Europe now needs to take this step. However, the term Leitkultur is misleading because it is so easily understood as referring to exactly the form of monoculturalism that Tibi opposes. Indeed, this is exactly the way in which it was understood in many public debates in Germany. Conservative politicians claim that society needs a set of guiding values and unifying social practices. They therefore demand that immigrants ought to accept the social and political priority of a Leitkultur shaped by constitutional principles, on the one hand, and some kind of traditional German Christian culture, on the other.9 For me the concept of a ‘traditional German Christian culture’ is itself hard to grasp. Germany has been torn by disputes between Catholics and Protestants ever since the Reformation, and the public confrontations between them only ebbed away when more and more people became agnostic or atheist at the end of the 1960s. The principles guiding German society in the time of the two World Wars cannot be called Christian and certainly are nothing modern democratic politicians want to refer to. Furthermore, regional differences are strong even now. Bavarians would certainly object to abiding by Prussian values whilst Prussians are likely to say that Bavarians value little but their beer … There thus is no obvious candidate for a ‘traditional German Christian culture.’ What conservative politicians refer to really is a contextualised version of a more general European culture influenced by ‘GreekRoman philosophy, the Judeo-Christian religion, and the heritage of the Enlightenment.’10 It is adjusted for the specific German context in three ways: a) there is special emphasis on a set of more or less timeless but rather secondary or domestic virtues like order, cleanliness, diligence, efficiency, and discipline, which are seen as particularly German;11 b) there is a big role for principles concerning social justice like unity and solidarity partly influenced by the West German Post-war ideal of ‘soziale Marktwirtschaft’ (social capitalism), partly also influenced by the socialist tradition in the East;12 and c) some principles became influential in reaction to the atrocities of the Nazi time (and also in response to

9 See, for example, Eduard Merz, Einwanderung und Identität, Die Welt, 25.10.2005. 10 Gerhard Schröder in an interview with ‘Bild am Sonntag,’ 21.12.2003 retrieved from Regierung online (www.bundesregierung.de) at 28.06.2005. See also Gerhards (2004): Europäische Werte – Passt die Türkei kulturell zur EU? 11 For the relevance of order in particular, see: Hofstede (2001): Culture’s Consequences, for example, 381. 12 See, for example, Meulemann (2002): Werte und Wertwandel im vereinigten Deutschland and Gensicke (2005): Welche Werte braucht die Gesellschaft.

6

Introduction

the experiences within the GDR) such as honesty, protection of personal data, etc. but also distrust of secular utopias.13 In defining the cultural background mostly in terms relating to the historical experiences and cultural practices of a specific territory and people, the conservative understanding of the term Leitkultur is thus the direct opposite of Tibi’s understanding. Adherents of Tibi’s conception demand a strictly secular humanist culture based on the philosophy of the European Enlightenment and particularly on the writings of Kant and Lessing, but conceived as timeless and universal.14 Despite their opposing conceptions of the content of Leitkultur, all supporters of some form of Leitkultur share two common beliefs. They are convinced that 1. the state itself cannot offer an ultimate justification of the values it is built on, and 2. a viable free and democratic society requires not only a set of values which guide public decision-making but also a common culture embedding, teaching, and practicing these values and creating a shared identity. These claims are often made with reference to Böckenförde’s dictum that ‘the liberal, secularised state is nourished by presuppositions that it cannot itself guarantee.’15 The charge is that liberalism as such cannot protect its own foundations. Böckenförde claims that the state cannot provide ultimate justifications for its values without referring to particular religious or ideological doctrines. Under the circumstances of pluralism, where people disagree about them, basing political justifications on such doctrines is incompatible with freedom of belief and equal citizenship. Furthermore, the hubris of human beings (even as a democratic polity) drawing up principles according to which all ought to live is seen as breeding the danger of dictatorship and totalitarianism (especially in

13 See Meulemann (2002): Werte und Wertwandel im vereinigten Deutschland for the reaction to the GDR regime. For evidence of the influences of the Nazi era, see the works of ErnstWolfgang Böckenförde and the commentaries on the development of the Grundgesetz (e.g. Isensee/Kirchhof (1992): Handbuch des Staatsrechts). For an elaborate argument that the instrumental rationality borne by the enlightenment project leads to totalitarianism, see Adorno/Horkheimer (1969): Dialektik der Aufklärung. 14 See, for example, Schmidt-Salonom (2006): Leitkultur, Humanismus und Aufklärung and Nida-Rümelin (2006): Humanismus als Leitkultur. 15 Böckenförde (1991): State, Society and Liberty, 45. See also Böckenförde (1976): Staat, Gesellschaft, Freiheit, 60 and Wikipedia (2008): Böckenförde-Diktum.

Leitkultur

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view of the horrors man-made ideologies like fascism and communism brought about).16 Böckenförde concludes in reference to Hegel that the state thus must live by the inner impulses and bonding forces imparted by the religious faith of its citizens – not, of course, in such a way that it is turned back into a ‘Christian’ state, but in such a way that Christians no longer see the state, in its secularity, as something alien and hostile to their faith but as the opportunity for liberty, to preserve and realise which is their responsibility, too.17

In other words: since the liberal secular state cannot legitimately offer ultimate justifications for its foundational values nor guarantee the sense of unity necessary for democracy to work, it has to rely on its citizens to do so for themselves. Each citizen has to justify the values of democracy, freedom, and equality with reference to her own conception of the good life. But this is not enough: citizens must share these commitments.18 This is the task of civil society: It is presupposed that a viable value education requires institutions such as churches, ‘Weltanschauungsgemeinschaften’ (associations united by a common comprehensive philosophical ideology like, for example, humanism), labour unions, or political parties because values need not only be justified but also shared and anchored in a social practice. They need to be part of a culture.19 Given the distrust of human rationality (which is seen as having failed in view of the atrocities of fascism and communism) and given the practical difficulty that philosophical schools rarely are institutionalised, conservatives for a long time assumed that the main responsibility for providing the necessary

16 See, for example, Böckenförde: ‘After 1945 attempts were made, particularly in Germany, to find a fresh basis for homogeneity in existing shared convictions with regard to moral values. Examined in terms of its communicable content, however, this recourse to ‘values’ is a poor and even dangerous substitute. It opens the door to subjectivism and positivism in current assessments of values that, each laying claim to objective validity, tend to destroy rather than foster liberty.’ (Böckenförde (1991): State, Society and Liberty, 45.) 17 Böckenförde (1991): State, Society and Liberty, 46. See also Hegel (1991 [1830]): Enzyklopädie der philosophischen Wissenschaften im Grundrisse, Section 552. 18 In his discussion of Böckenförde, Habermas distinguishes between justification and motivation for democratic values. He argues that the secular state is able to give appropriate justifications for its value commitment but argues that the problem Böckenförde raises still stands given the need for democratic citizens to be committed to and motivated by such values. Like Böckenförde he assumes that this latter aspect requires a shared culture. See Habermas (2005): Vorpolitische Grundlagen des demokratischen Rechtsstaates. For another strong statement on the importance of cultural homogenity and embeddedness for democracy, see, for example, Brandt (2011): Demokratisch, patriotisch, kulturell verankert. 19 As I will argue in more detail in Chapter 6, the term ‘culture’ has many meanings. Here I simply mean a set of social practices.

8

Introduction

moral foundations for a free and secular state as well as for embedding them in a social practice lies predominantly with the established Christian churches (forgetting that they offered very little resistance to fascism). It seems outright crazy that the fathers of the Federal Republic of Germany entrusted the defence of democracy and freedom to the Catholic and Protestant churches, but commentary and debates on the German Basic Law suggest that they did. This explains many of the privileges that the churches gained and were allowed to keep.20 Since freedom and democracy rely on a set of values the state itself cannot justify and thus requires the institutions of the civil society to provide, the state has to give support to – and accommodate the interests of – institutions which have proven over time that they support these values. It is obvious that this understanding of the reference points appropriate for political decision making is challenged by the fact of pluralism and in particular by immigration. If it is indeed necessary to ensure the cultural embeddedness of political values by supporting particular cultural institutions, then it is not helpful to support institutions which do not reach all citizens. Furthermore, it seems more than unhelpful – possibly even contradictory – to promote the democratic values of freedom and equality of citizens by favouring the somewhat contingent conceptions of the good of some over those of others. There has always been opposition to this understanding from atheistic and humanist groups who felt that their interests where neglected, while the interests of Christians had a large state-supported lobby. Immigration of large numbers of members of other religions (in the German case mainly Muslims) added a further urgency to the questions of whether this approach was helpful, feasible, and fair. The debates on the term Leitkultur are widely seen as failed and unhelpful because of the confusion caused when different discussants understand the term differently. However, I believe the main problems are the elements of theories of Leitkultur shared by all adherents of this way of thinking: the assumption that, since the state cannot guarantee the values it relies on, it has to confer the responsibility for its own foundations to established institutions of the civil society. It is important to notice that the term ‘guarantee’ is understood in a very particular way: for the state to guarantee the values it relies on means that it

20 See in particular the commentaries and debates on article 7.3 of the German Constitution, which guarantees the established churches the right to teach their religion at most public schools. Instruction on the theological foundations of value commitments is seen as necessary. However, it is seen as inappropriate for the state to define religious contents, so the state rather provides the opportunity (and pays the teachers) which then teach according to the instructions of the respective churches. See, for example, Hildebrandt (2000): Das Grundrecht auf Religionsunterricht and Isensee/Kirchhof (1992): Handbuch des Staatsrechts.

Leitkultur

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ensures that its citizens a) rationally agree to these values and b) practically embrace them by promoting a public culture supporting these values. This position thus entails two different claims: 1. The state ought to justify its actions to its citizens based on values they can be expected to agree on. 2. For a democratic state to function properly, it is not sufficient that citizens agree theoretically to these values. These values must be embedded in their social practices, that is, in their culture. Advocates of the idea of Leitkultur claim – inspired by Böckenförde – that the state cannot guarantee its foundational values in this sense because it can neither offer a suitable justification nor the kind of practice necessary to embed these values in people’s lives more generally. They simply shift the main responsibility for providing justifications and embedding values in social practice to civil society but claim that the state ought to support those institutions of civil society which help to both theoretically defend those values and embed them in a suitable social practise. In the following I show that this strategy is flawed: It might be true that the state cannot give ultimate justifications for all its value commitments without referring to controversial doctrines. It might also be true that values need to be embedded in and supported by a cultural practice to remain viable over time and that abstract political ideals need to be part of people’s comprehensive conceptions of the good to be influential. However, this does not mean that the state cannot give any justification of its foundational values. It is legitimate to assume that citizens of democratic states share the commitment to the ideas of democracy, free and equal citizenship, and human rights. These commitments might well be part of many different comprehensive doctrines and might be too fundamental to be based on other widely shared value commitments. However, I will show in Chapter 4 that, when these ideals are taken as axioms, most other value commitments of liberal democracies can be derived from them. Furthermore, the very practice of democratic politics with its public debates, elections, referendums etc. is a social practise affirming and re-affirming democratic value-commitments. Outsourcing the protection of political values to institutions like the established Christian churches – or the Humanist Union – is, however, not only a somewhat risky strategy but also undermines the democratic ideal of equal citizenship by implying that full responsible citizenship not only requires adhering to the values enshrined in the constitution but also membership in particular kinds of cultural institutions supporting these values.

10

Introduction

While reference to a Leitkultur in Tibi’s sense might be to some degree a helpful response to two of the challenges of diversity, it fails to meet the second challenge. Promoting the values of Enlightenment stands a better chance of being defensible in a way citizens can be expected to agree on (challenge 1) than many other conceptions of the good (even though I think Tibi’s package of values is too comprehensive). Promoting cultural institutions practising these values by, for example, large emphasis on education in Enlightenment thought and support for theatres showing plays for moral education like Lessing’s Nathan the Wise might lead to a society where the commitment to liberty, tolerance, and mutual respect is present in all aspects of life (challenge 3). Nonetheless, I will argue in the following that even such benevolent involvement in people’s conceptions of the good is incompatible with treating them as free and equal citizens (challenge 2). Furthermore, there is an acute danger that too strong an emphasis on one particular history of thought – no matter how rational and reasonable – might lead not only to disregard but also to contempt for different ways of life and thus undermines the equal standing of citizens as well as the fair value of their equal political rights.21

1.3 Liberal neutrality In the following I defend an understanding of liberal neutrality which attempts another way to address the challenges. In Chapter 2 I argue that neutrality is best understood as a two-fold concept with two underlying intuitions: 1. There are matters which simply are not the business of the state (respect element). 2. The state should treat citizens as equals and give appropriate attention to the interests of all its different citizens (fairness element). The respect element of neutrality links in with the commitment to justify political action to citizens based on principles they can be expected to reasonably agree on. In Chapter 3 I claim that the distinction between the right and the good on which neutrality depends can be understood as the distinction between political conceptions of justice and all other questions of how to lead a good life. That is, I claim that citizens can be expected to reasonably agree on some fundamental principles of political morality. In Chapter 4 I show that Rawls’s conception of society as a fair system of cooperation among citizens understood as free and equal is a thin political

21 For an account of how the overly strict understanding and commitment to rationality and Enlightenment thought let to anti-Jewish sentiment among liberals in the Second Reich, see Tal (1975): Christians and Jews in the Second Reich, Chapter 4.

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11

theory of the good and thus suitable to inform the content of such fundamental principles of political morality. In Chapter 5 I spell out why respecting citizens as free requires justifying all state action in terms citizens can be expected to reasonably agree upon. I argue furthermore that any such justification needs to outweigh the right to be left alone from state involvement and thus must itself refer to rights. In Chapter 6 I show that respecting citizens as equals requires priority for the political liberties as well as ensuring the fair value of these political rights. Since cultural differences can undermine the fair value of equal political rights, the process of political decision making needs to be sensitive to cultural differences. In Chapter 7, finally, I show that realising liberal neutrality entails commitment to some fundamental liberal principles, to democratic procedures, and to awareness of political difference. I argue that liberal neutrality in this understanding is an appropriate response to the challenges of pluralism discussed above. It gives a rationale and understanding which principles the state can expect all citizens to reasonably agree on (challenge 1). It establishes and maintains by its participatory democratic institutions a political culture which embeds the values underlying democracy in a continued social practice (challenge 2). And it ensures the fair value of equal political rights by institutionalising awareness for cultural difference and its possible influence on the fair value of equal political rights (challenge 3).

2 Defining liberal neutrality 2.1 Neutrality is an ill-defined term Both in real life politics and in political theorizing, the emergence of cultural and individual pluralism led to the claim that the state ought to be neutral. However, what it means to be neutral is controversial.1 As Rawls puts it, ‘the term neutrality is unfortunate: some of its connotations are highly misleading, others suggest altogether impracticable principles.’2 A recent case before the German Constitutional Court and the new legislation which followed it emphasises the importance of neutrality as well as the indeterminateness of the term.3 A young Muslim woman applied for the status of a civil servant in the teaching profession (Verbeamtung) in Baden-Württemberg after finishing her training, which is the normal procedure for anyone aiming to become a teacher at a public school. Her application was denied: her insistence on wearing a headscarf while teaching was understood to show a lack of aptitude for the position of a civil servant. The argument of the school authorities was broadly neutrality based. It considered the headscarf to be not only a religious but also a political symbol signalling the intention not to integrate into secular German society. For both reasons it was said to be incompatible with state neutrality. Furthermore, the school authorities claimed that students have a right not to be subjected to an authority figure (actively or passively) advocating a particular interpretation of Islam. The teacher-to-be appealed against this decision claiming that: 1. her personal freedom of religion was infringed by prohibiting her to wear a headscarf, 2. the decision was discriminatory against Muslims as opposed to other religions with more mainstream dress codes,4 and 3. usually, neutrality in Germany is understood in an inclusive rather than laicist5 fashion as balancing the claims of different religions (admittedly,

1 For an eloquent summary of different positions associated with the term neutrality within the philosophical literature, see Gaus (2003): Liberal Neutrality, 138. 2 Rawls (1996): Political Liberalism, 191. 3 BVerfG, 2BvR 1436/02 of 24.09.2003. 4 2 BvR 1436/02, 70. 5 Laicism is the French understanding of neutrality or secularism. It requires a strict separation between state and religion, bans all forms of recognition for religious difference in the political sphere, and generally demands that ‘the state has to distance itself from all things religious.’

Neutrality is an ill-defined term

13

mostly only those of Protestants and Catholics) rather than banning them from the public sphere.6 The case went through several levels of appeal before ending at the German Federal Constitutional Court (Bundesverfassungsgericht). The Constitutional Court ruled that the current legislation does not allow the taking of an intention to wear a headscarf to be a sign of lacking respect for the neutrality of the state, since there currently is no authoritative understanding of what neutrality entails. The rejection of the teacher’s application was therefore considered unlawful. However, the court also stated that the conditions of pluralism require a clearer definition of neutrality as well as legislation concerning religious symbols displayed by teachers. Since this verdict most German states have issued legislation to deal with the issue. Without going into the details of the actual legislation, I will briefly discuss three general strategies for dealing with religious dress worn by teachers: 1. banning all religious symbols for teachers, 2. allowing all symbols and dress-requirements, and 3. banning ‘political’, ‘sexist,’ or ‘fundamentalist’ symbols while allowing symbols standing for organizations or ideologies considered compatible with adherence to the norms of a free democratic state. All three strategies for achieving neutrality at school are themselves criticised with reference to neutrality. Banning all expression of religious commitment in the appearance of teachers is seen as discriminating against religious candidates and thus as non-neutral between religious and non-religious teachers. Allowing all symbols is seen as problematic because of the danger that teachers would promote controversial values in class-rooms, such as suggesting that girls not wearing a headscarf are bad Muslims.7 Neutrality is breached by allowing state officials to take a stand on controversial considerations of the good life in front of suggestible children. Distinguishing between different kinds of symbols seems at first sight to be a good compromise. However, this strategy is not unproblematic either because it is feared that it is inevitable that unfamiliar symbols will

See, for example, Joppke (2007): State Neutrality and Islamic Headscarf Laws in France and Germany. 6 2 BvR 1436/02, 4. 7 This point was discussed in the dissenting opinion of the judges Jentsch, Di Fabio, and Mellinghoff, 2 BvR 1436/02, 114f.

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Defining liberal neutrality

be discriminated against – as in when the willingness to wear a headscarf is seen automatically as a sign of lacking the will to integrate into German society at all. Opponents of the legislation thus claim that all too often the notion of what is neutral simply tracks what is generally socially acceptable (normal) rather than any independent idea and thus lacks moral justification. This is particularly true for the German case where some states allow nuns wearing habits to teach in public schools while prohibiting Muslim headscarves.8 Furthermore, there is the question of whose interpretation of any given symbol is to be considered authoritative. The question of neutrality is thus politically significant. Not only in Germany but also in other western democracies, legislators struggle to define fair requirements of neutrality.9 On the one hand, the need for neutral institutions and standards for neutrality increases in view of increasingly pluralist societies.10 On the other hand, minorities increasingly demand official affirmation of their distinct identity, and the idea of ‘neutral’ requirements of dress and behaviour is more and more criticised as a way for the majority to suppress cultural minorities. In this chapter I analyse the literature on neutrality and show that the different conceptions of neutrality currently discussed are unsuitable to do justice to the full breadth of the concept in its different areas of application. I therefore suggest that neutrality is better understood as a twofold concept consisting of an element of respect as well as an element of fairness. The respect element traces the intuition that there are matters the state has no business getting involved in. The fairness element refers to the idea that the state ought to treat citizens holding different conceptions of the good life as equals.

8 See Goerlich (1999): Distanz und Neutralität im Lehrberuf, Steiger (2004): Der Streit um das Kopftuch, and Joppke (2007): State Neutrality and Islamic Headscarf Laws in France and Germany. 9 See in particular the debates in France and Turkey where laicism is attacked as limiting freedom of religion and as being non-neutral between religious and non-religious lifestyles. 10 The traditional German understanding of neutrality consisted in balancing the interests of Catholics and Protestants and was very accommodating. The state currently assists in collecting the ‘membership fees’ for established churches in a special part of the tax forms, and the constitution entails a right for recognised churches to provide religious education in public schools. This German balancing approach to neutrality always neglected minorities like Jews or atheists. While it could theoretically have been extended to consider minorities, too, it is doubtful whether such an enterprise is feasible nowadays – where the sheer number of lifestyles increased radically – unless some issues are taken off the agenda from the very beginning. On this concept of ‘open neutrality,’ see Joppke (2007): State Neutrality and Islamic Headscarf Laws in France and Germany.

Conceptions of neutrality

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2.2 Conceptions of neutrality The object of neutrality is usually described by the term ‘conceptions of the good life’ or the shortened term ‘conceptions of the good.’ The term refers to the individual answers each person gives to the question how life should be lived and does not necessarily imply that these conceptions are held with the same sincerity as matters of conscience. The claim that the state ought to be neutral is thus much more extensive as an account of freedom of consciousness. Conceptions of the good include all kinds of things others might easily find wrong or silly. As Ronald Dworkin explains: Each person follows a more-or-less articulate conception of what gives value to life. The scholar who values a life of contemplation has such a conception; so does the televisionwatching, beer-drinking citizen who is fond of saying ‘That is the life,’ though he has thought less about the issue and is less able to describe or defend his conception.11

Liberal neutrality claims that the state ought to be neutral between its citizens’ permissible conceptions of the good life (ruling out only such conceptions which violate the rights of others). However, what it actually means to be neutral between these conceptions is still unclear. In this part I present the three basic types of neutrality most prominently discussed in the literature: 1. neutrality of impact, 2. neutrality as equality of opportunity, and 3. justificatory neutrality.12 The first two conceptions feature mostly as straw-men in criticisms of neutrality, and I will show why they are considered problematic. The third, justificatory neutrality, is the conception usually defended by neutralists and often taken to be not just a way to realise neutrality but a definition of the concept. I will argue that,

11 Dworkin (1985): Liberalism, 191. 12 There are different ways to characterise and group different conceptions of neutrality. The distinction is often drawn in view of the focus on outcomes, intention, or procedure, but I think this distinction is less clear. As the discussion will show, neutrality of impact and equality of opportunity are outcome directed, in the sense of intending to bring about a particular kind of equality. Justificatory neutrality, by contrasts, is a procedure of equal treatment. Again what matters is not to actually achieve treating the different parties equally but rather the intention to do so. I therefore follow Raz in distinguishing the types of neutrality by their understanding of what kind of equality is required. See Raz (1986): The Morality of Freedom, 114.

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Defining liberal neutrality

while justificatory neutrality is necessary for a state to be neutral, it is not sufficient.

2.2.1 Neutrality of impact According to the first understanding, neutrality means ensuring that the third party’s action (or inaction) has equal impact on the disputants. This view is expressed by Alan Montefiore: ‘to be neutral in any conflict is to do one’s best to help or to hinder the various parties concerned in an equal degree.’ Montefiore developed this view in the context of political commitment at university. He claims that university teachers ‘have a duty to remain professionally disinterested and neutral in conflicts which do not touch on their university functions.’13 Teachers are not required to be neutral in all conflicts. They are not to be neutral with regard to scientific disputes in their area of expertise. Nor are they to ‘help and hinder to an equal degree’ students who know the answer to a question or students who do not, or those who abide by university regulations and those who do not. However, in questions which do not touch their position as teachers – like most political or religious questions – they are to aim at having neutral impact on the disputing parties. While there are significant differences between university and school, it seems clear that school teachers would face the same requirement if that was what neutrality required. However, it seems unclear what equal impact means in the example of the question whether teachers in a neutral state should be allowed to wear a Muslim headscarf. Wearing a headscarf can be seen as supporting the position that women should wear a headscarf. Not wearing a headscarf can be seen as promoting the idea that women should not wear a headscarf. Helping and hindering the different parties equally might then mean something ridiculous like putting the headscarf on and taking it off every other day.14 Not only perfectionists but also most neutralists condemn this view as seriously flawed. There are two main problems: 1. in many circumstances it is impossible to help and hinder different parties to an equal degree, and more problematically,

13 Montefiore (1975): Neutrality and Impartiality, 44. 14 As Ben Saunders pointed out to me, it could also require that teachers should wear paper bags over their heads so that students would not be able to see whether or not the teacher was wearing a headscarf. This does not seem to be a suitable solution either.

Conceptions of neutrality

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2. it is an open question which is the relevant baseline in reference to which impact is to be equalised. Montefiore is aware that applying this conception of neutrality – helping and hindering the parties concerned to an equal degree – can in some situations favour one party more than the other. If a father is neutral in a fight between his children, the weaker child will lose. For Montefiore this is not a problem for neutrality but rather raises the question if there is a neutral solution in all cases. He explains that unequal success is not problematic as such: if a referee applies the rules of the game neutrally, the better team is more likely to win and that is exactly what a neutral referee aims at.15 Even if the same help and hindrance should have different consequences for the two parties, Montefiore does not consider this a general objection to his conception. What matters is a neutral attitude, that is, the intention to help and hinder parties to an equal degree. Furthermore, in some circumstances it might be possible to compensate the party disadvantaged by a particular option and thus to re-install equal impact. However, as Raz, who calls this conception ‘narrow political neutrality,’16 points out, compensation is often costly and seems inappropriate in many cases. For example, how should we compensate motor-sport enthusiasts for the inconvenience of speed limits? Or why should extra hours of Formula 1 on television be a requirement for treating citizens fairly?17 The second problem addresses the question of the base lines to which impact is to be equalised. Is the default position wearing a headscarf or not wearing a headscarf? And why? If there is no independent justification why the current situation is morally relevant, neutrality understood as equality of impact protects an arbitrary status-quo.18 In the case of the referee, equally helping and hindering the different parties (by applying the rules impartially) makes sense because the purpose of the game is to show which team does better. In the example of the father being neutral between his children, it depends on the kind of the conflict

15 Montefiore (1975): Neutrality and Impartiality, 9–10. 16 Raz (1986): The Morality of Freedom, 117. 17 Raz’s own example of compensating would-be-rapists for the inconvenience of prohibiting their choice of pastime is more problematic because this conception of the good life is not permissible and thus does not deserve neutral concern at all. See Raz (1986): The Morality of Freedom, 115f. On the appropriate limits of neutrality, see Chapters 5 and 7 below. 18 Joseph Raz elaborates this argument in his The Morality of Freedom, 121f. See also Waldron (1989): Legislation and Moral Neutrality, 67, Jones (1989): The Ideal of the Neutral State, 14–17, Dworkin (1981): Equality of Welfare, Ackerman (1980): Social Justice in the Liberal State, 45–53, Rawls (1975): Fairness to Goodness, 551–554.

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Defining liberal neutrality

whether neutrality as equal impact is fair. If they are testing who is stronger, there is a good reason to be neutral in this sense. If they are deciding who should get a particular toy, neutrality as equal impact in a fist-fight between two unequally strong children seems inappropriate. Rather, a neutral father who does not favour one of his children over the other ought to help them to find a resolution to the conflict both children can reasonably agree to.

2.2.2 Neutrality as equality of opportunity Neutrality as equality of opportunity avoids the problem of arbitrary baselines and claims that neutrality means to equalise the opportunity to pursue one’s conception of the good life rather than the impact of actions or regulations. Raz describes this conception, which he calls ‘comprehensive political neutrality,’19 in the following way: One of the main goals of governmental authority, which is lexically prior to any other, is to ensure for all persons an equal ability to pursue in their lives and promote in their societies any ideal of the good of their choosing.20

With regards to the religious dress of teachers, it is unclear what equal chances to live according to one’s conception of the good means. In one reading it is simple: everyone should have the same chance to become a teacher independently of their religious beliefs. This would favour the allowing of headscarves. On a different reading – if the conflict which requires neutrality is not the one between different teachers but between different pupils and parents wishing teachers to be particular role-models – it is much more difficult. There could be practical solutions to provide the same opportunity to be influenced by teachers being examples of religious and secular lifestyles – e.g. an equal number of teachers dressing according to different religious and non-religious conceptions of the good. However, such solutions seem silly and do not address the right problem. Opponents of headscarves in schools do not oppose the idea that children are more influenced by particular Muslim conceptions of the good than by other conceptions. They generally object to the idea that children are subjected to a teacher advertising a religious conception of life which they associate with the subjection of women.

19 Raz (1986): The Morality of Freedom, 117. 20 Raz (1986): The Morality of Freedom, 115.

Conceptions of neutrality

19

This objection is voiced on the general level, too: liberals certainly do not want rapists and gardeners to enjoy equal opportunities to live the way they want.21 However, the objection does not hold simpliciter: all sensible conceptions of neutralism presuppose a distinction between the right (concerning matters of justice which the state ought to protect and enforce) and the good (concerning what makes individual lives worth living).22 Principles of the right set limits to which conceptions of the good are permissible. Supporters of neutralism emphasise that the state ought to be neutral only between permissible conceptions of the good but not towards conceptions which themselves violate the rights of others. The question then is whether wearing a headscarf whilst teaching is unjust. Opponents of headscarves often argue that it is. They claim that the headscarf symbolises the subjection of women and is thus incompatible with the ideals of gender equality and equal citizenship.23 If this is the case, then it can be argued that the state should not be neutral – according to any conception of neutrality – towards headscarves in any context. The state might have reason to tolerate headscarves in some contexts but no reason to be neutral, that is, no reason not to condemn and prohibit headscarves at least in some contexts.24 If the case is more complicated – as I believe it is – and wearing a headscarf by itself does not suggest the subjection of women (even if it often is a sign of this attitude), the question remains, what it means to be neutral in this context.25 Understanding neutrality as equality of opportunity to live according to one’s conception of the good is unhelpful to decide the question of teachers’ headscarves because it is unclear what equal opportunity means from the point

21 Raz refers to a similar example to undermine the plausibility of neutralism. See Raz (1986): The Morality of Freedom, 115. 22 For a suggestion on how exactly this distinction might be drawn, see below Chapter 3. 23 See, for example, Ates (2007): Der Multikulti-Irrtum, 119–138 and Shadid/van Koningsveld (2005): Muslim Dress in Europe, 45f. 24 For the distinction between neutrality and toleration, see below Chapter 3. 25 The religious reasoning for the headscarf seems linked to a specific understanding of the relations between the sexes: ‘A woman wearing Islamic modest dress is considered to “wear hijāb.” In Arabic she is a muhajjaba, which denotes that by doing so she obeys the religious rules of decency and separation between the sexes, especially in the public sphere.’ (Shadid/ van Koningsveld (2005): Muslim Dress in Europe, 36) This conception of modesty is foreign to modern liberalism but does not necessarily translate into a claim about the subordination of women. There is also an increasing number of Muslim women in western society who do not necessarily share this understanding of modesty but rather wear the headscarf to affirm their religious identity in opposition to the dominant mainstream culture. (Shadid/van Koningsveld (2005): Muslim Dress in Europe, 47f.)

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Defining liberal neutrality

of view of pupils. If it meant that one ought to be have an equal chance to have a teacher who is a role-model for the conception of the good one happens to follow, this seems to be a claim requiring much more justification than the reference to avoiding religious indoctrination which is usually seen as underlying this claim to neutrality. Apart from this indication that neutrality understood as equality of opportunity sets high demands for any justification of neutrality, there are some fundamental problems with the conception. As Will Kymlicka argues, this understanding poses problems for both the two liberal core values liberty and equality.26 Kymlicka argues that granting basic liberties necessarily means that some conceptions will have better and others worse chances to flourish. Individual liberties make it not only harder to pursue illiberal conceptions but are also challenges for permissible conceptions which, for example, require the cooperation of others. Given the commitment to individual liberty it is easier to pursue the life of a hermit than it is to live according to a socialist conception of the good which requires a collective sharing the same ideas. Liberal freedoms are often understood to protect a marketplace of ideas where people are free to express, try out, pursue, and change different conceptions of the good and where the success of any conception depends solely upon what it offers to possible adherents. Equalising the chances to pursue any permissible conception of the good is incompatible with such a marketplace of ideas. Furthermore, there is the problem of ’expensive tastes‘ – equalising chances to pursue one’s conceptions of the good life might require subsidies for champagne lovers which are counter-intuitive. The problem is not that some citizens, for example disabled persons, might require more resources than others to pursue their conception of the good. Nor is the problem that some people take pleasure in more expensive ways of life. The problem is rather that there is a strong intuition that people are to some extent responsible for forming ‘their aims and ambitions in the light of what they can reasonably expect.’27 In Kymlicka’s words Those people who have developed expensive tastes in disregard of what they can reasonably expect have no claim to be subsidized by others, no matter how strongly they felt those desires are.28

26 See Kymlicka (1989): Liberal Individualism and Liberal Neutrality, 883–886. 27 Rawls (1980): Kantian Constructivism in Moral Theory, 545. 28 Kymlicka (1989): Liberal Individualism and Liberal Neutrality, 885. On this issue see also Dworkin (1981): Equality of Resources.

Conceptions of neutrality

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Neutrality in this understanding is thus not compatible with the core liberal concern that any equal distribution of goods by the state should take into account people’s responsibility for their choices. Most neutralists take these objections relating to freedom and equality to be very seriously and therefore do not think that this approach to neutrality is promising. They argue that the basic intuition of neutrality is the view that the state should not reward or penalize particular conceptions of the good life, but, rather, should provide a neutral framework within which different and potentially conflicting conceptions of the good can be pursued.29

This intuition is less demanding than neutrality as equality of opportunity. It furthermore underwrites – rather than challenges – the general liberal concerns for the greatest extent of individual liberty and the equal distribution of essential goods. Raz attributes the conception of neutrality as equality of opportunity to Rawls and sees it expressed in A Theory of Justice, where the principles of justice aim to counter morally arbitrary differences in the chances people have to live according to their preferred way of life.30 However, it is clear that Rawls never intended it to be a general model of neutrality, let alone a principle to direct individual policy decisions. His principle about equal opportunity applies only to the basic structure of society. The distribution of primary goods, freedoms, and rights ought to be such that it does not arbitrarily disadvantages some citizens in pursuing their permissible ways of life.

2.2.3 Justificatory neutrality Most neutralists consider neutrality not to entail a principle of equalising (underlying the last two conceptions presented) but rather a principle of equal treatment. They object to conceptions of neutrality focusing on outcome but rather consider it to be a principle of procedural justice.31 Adherents of justificatory

29 Kymlicka (1989): Liberal Individualism and Liberal Neutrality, 886. 30 See Raz (1986): The Morality of Freedom, 117f. and also Rawls (1971): A Theory of Justice, 13f. and 62f. 31 Richard Arneson, William Galston, and Charles Larmore call this conception ‘neutrality of procedure,’ Kymlicka calls it ‘justificatory neutrality.’ See Arneson (1990): Neutrality and Utility, 218f., Galston (1991): Liberal Purposes, 100, Larmore (1987): Patterns of Moral Complexity, 44 and Kymlicka (1989): Liberal Individualism and Liberal Neutrality, 884.

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Defining liberal neutrality

neutrality argue that all outcome-directed conceptions – whether they are equalising chances or impact – run into problems of feasibility, liberty, expensive tastes, and arbitrary baselines.32 They argue furthermore that neutrality can only be defended conclusively as a principle of procedure rather than outcome. More precisely, they claim that neutrality relates to the motives of political action. The usual reading is that neutrality prohibits reference to particular conceptions of the good in the justification of political action. Bruce Ackerman’s classic formulation of this conception states: No reason is a good reason if it requires the power holder to assert: (a) that his conception of the good is better than that asserted by any of his fellow citizens, or (b) that, regardless of his conception of the good, he is intrinsically superior to one or more of his fellow citizens.33

Since citizens in free democratic societies hold different conceptions of the good and since there is no neutral way to compare them, considerations of the good are excluded from being reasons for political action. The state thus ought to limit its reasoning to the question what it means to treat each other fairly and release the question of what makes life worth living into the private domain.34 Justificatory neutrality provides constraints on the way legislation concerning headscarves in schools is justified. However, in itself it gives no indication if teachers should or should not be allowed to wear them. Justificatory neutrality clearly prohibits legislation permitting Muslim headscarves in schools on the grounds that Allah commands it. It also prohibits legislation banning Muslim headscarves on the grounds that Islam is not the true faith. Justificatory neutrality is, however, compatible with claiming that headscarves ought to be permitted for reasons of freedom of religion. And it is also compatible with arguing that headscarves ought to be banned because teachers as civil servants represent the secular state and thus should not promote any particular religion in their appearance.

32 See, for example, Waldron (1989): Legislation and Moral Neutrality 67. In the case of equal opportunities, it is not really a base-line that is disputed but rather different possible levels of equal opportunities. The question is whether an overall worse but equal distribution or an overall better but unequal distribution satisfies the motivations for equality/neutrality better. The literature on egalitarianism considers this question under the heading of ‘levelling down objection.’ See, for example, Parfit (1997): Equality and Priority. 33 Ackerman (1980): Social Justice in the Liberal State, 11. 34 There are different understandings of and much debate over which kind of reasons qualify as neutral. For the defence of my understanding, see below Chapters 5 and 7.

Conceptions of neutrality

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The problem seems that there can be right-based reasons both for banning and for allowing the Muslim headscarf for teachers. However, I do not think this is the most serious problem of justificatory neutrality. In most contexts there are different legitimate reasons which need to be weighed against each other. To me the main problem is that there seems to be more to neutrality than justificatory neutrality. While justificatory neutrality is a necessary requirement for a neutral state, I do not believe it is sufficient. Neutrally justified regulations sometimes are not neutral enough. While the reasoning behind a particular regulation does not refer to anything but principles of justice, its implementation might still show more or less respect for different people. An example might help to illustrate this point: let us assume that, in a particular situation, there are reasons for a school uniform which satisfy the requirements of justificatory neutrality. They do not refer to aesthetic considerations but to the ideals of non-discrimination and equal standing in the class room which – under the given circumstances – cannot be promoted otherwise. The background could be, for example, a mixed group of very rich and very poor children. Let us assume furthermore that any kind of school uniform would solve the problem. Any kind of school uniform would thus be deemed neutral in the sense of being justified on neutral reasons. Now let us say that some of the children for some reason really hate the colour red. My claim is that deciding on a red school uniform would in some sense be non-neutral if a different colour could have been chosen, had the school board bothered to ask whether anyone had any strong preferences rather than going with the favourite colour of the principal. This seems trivial. Every school uniform will upset some children – a universally liked school uniform is pretty much impossible – and some of the kids will just have to bear wearing something they do not like. More generally, since justificatory neutrality refers to and protects the equal fundamental rights and liberties of all citizens, no neutrally justified regulation can be unjust to anyone. It can be inconvenient, but since most regulations will be inconvenient to someone, this seems regrettable but unproblematic. I argue that some inconveniences under some circumstances are morally relevant: inconveniences are morally problematic if 1. the inconvenience is avoidable (there are plenty of other colours and no other colour triggers such a strong aversion), and 2. those who are inconvenienced by the particular implementation of a neutrally justified regulation did not have a fair chance to make their case and argue for a different implementation.

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Defining liberal neutrality

This is to say that what is troubling in my example is not that the children have to wear red (and be miserable) but that this disadvantage could easily have been avoided if their opinions and interests had been taken into consideration. However, so far I have only showed that there is something unfair going on in the red school uniform example, not that the unfairness at stake is a lack of neutrality. I claim that the unfairness at stake can be described as a bias and thus as a lack of impartiality and neutrality. The first question is then what it means to be biased. There is a clear link between being biased and differentiating between people. Yet, it also is obvious that being unbiased and equal treatment are not always the same. A nurse is not biased if she spends more time caring for the patient who is more seriously ill. So what matters for being unbiased is that treatment responds to the right kind of reasons and disregards the wrong kind of reasons. Nurse Judy would be biased if she cared better for the rich and handsome rather than for the poor and boring patient. Whether the reasons are of the right or the wrong kind depends on the ‘job’ of the agent: as a nurse, Nurse Judy ought to be concerned with reasons relating to health-care, off-duty, however, she is free to prefer and pamper rich handsome guys as much as she likes. Whether or not the state is biased in a particular situation thus depends on whether it responds to the right or the wrong reasons given its ‘job.’ This raises two questions: 1. What is the ‘job’ of the state? And 2. Is the state responding to the wrong reasons or failing to respond to the right reasons if it allows the particular kind of inconveniences that I have laid out above? Regarding the first question, I am not going to provide an argument here, but rather stipulate that the ‘job’ of the state is to create and maintain the necessary institutions to ensure that society is a fair system of cooperation between citizens understood as free and equal and equipped with the two moral powers for a conception of the right and the good.35 On the second question, I claim that, by allowing inconveniences which are avoidable and come about by a process that did not provide those who suffer with a fair chance to argue for a more convenient solution, the state responds to the wrong reasons, that is, the lazy convenience of the majority. The right reasons – as I will argue – stem from the equal concern due to all citizens considered as possessing the two moral powers to the necessary minimal degree for being fully

35 For further discussion on this point, see Chapter 4.

Contexts of neutrality

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cooperating members of society. My claim is that justificatory neutrality is not all there is to neutrality because by itself it cannot avoid the problematic biases just discussed and thus fails to prevent certain failures of neutrality. This section suggested that the conceptions of neutrality discussed in the literature all face some serious problems. Most neutralists do not attempt to defend the first two outcome-directed conceptions but are only concerned with justificatory neutrality. I think that this step gives up too much of the intuitions underlying neutrality and that there is more to neutrality than justificatory neutrality. To illustrate this point further, I will show in the following section that some of the concerns expressed by neutrality of impact and neutrality as equality of opportunity are quite plausible in some limited circumstances. I will also provide further evidence that justificatory neutrality in the context of everyday decision making and especially in the context of the behaviour and appearance of state officials is insufficient to account for the intuitions underlying neutrality.

2.3 Contexts of neutrality The first question of what neutrality means has thus three different answers referring to different conceptions of neutrality. A second question relating to the issue of what it means for the state to be neutral is the scope of the claim. Is it enough for the state to be neutral between its citizens’ conceptions of the good on the level of the basic set-up of society? Should the state be neutral in smallscale everyday decisions? How should the representatives of a neutral state handle their own opinions? Is there one conception of neutrality appropriate for all these areas of application or are there different understandings appropriate for different contexts? If so, what unites these different understandings? This dimension of scope is often taken for granted and neglected in discussions of neutrality, but the relevant context makes a difference to the plausibility of different conceptions of neutrality.36 The following discussion will show that the three different understandings of neutrality – neutrality of impact, neutrality as equality of opportunity, and justificatory neutrality – are more convincing in some contexts and less convincing in others. In the following I furthermore draw attention to the fact that neutrality in all circumstances entails an element of respect as well as an element of fairness.

36 Neutralists often stress that what neutrality requires in a particular situation depends on the situation but offer little discussion what about the situation triggers the changes in the requirements of neutrality.

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Defining liberal neutrality

However, how these elements are understood and weighed in each particular case does depend on the context. Generally, the respect element traces the intuition that there are some matters where the state has no business getting involved. The fairness element refers to the idea that the state should treat people holding different conceptions of the good life as equals. This concern for equality and fairness is the main motivation of the outcome focused conceptions of neutrality rejected above, while the respect element relates to justificatory neutrality. One of the flaws of the conceptions discussed above is that they aim to capture all that the notion of neutrality encompasses, while focusing exclusively on the one or the other element.

2.3.1 Constitutional essentials The most uncontroversial application of the claim that the state ought to be neutral concerns the basic set-up of society, that is, constitutional essentials.37 Liberal legitimacy in the Rawlsian sense requires that the principles guiding the basic structure of society are such that ‘all citizens as free and equal may reasonably be expected to endorse [them] in the light of principles and ideals acceptable to their common human reason.’38 Justificatory neutrality spells out the preconditions of such acceptability: in justifying constitutional essentials the state must: 1. not refer directly to any conception of the good life, and 2. not evaluate the relative moral value of different permissible competing conceptions of the good life. In determining and distributing basic goods, the state must first of all refrain from relying on comprehensive conceptions of the good and be limited to considerations of the right. Rawls identifies the right with reasonable political conceptions of justice and thus as concerning fair terms of cooperation between free and equal citizens.39 He claims that ensuring and maintaining fair terms of cooperation is

37 While it is less controversial, it is not uncontroversial. Some liberals like Joseph Raz and George Sher argue that the state must not be neutral but rather support a basic idea of the good and merely tolerate those who disagree. For a more detailed debate, see below Chapter 3. 38 Rawls (1996): Political Liberalism, 137. 39 See Rawls (1996): Political Liberalism, 174–176. For my interpretation see Chapters 4, 5, and 7.

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prior to, and sets the limits of, what people may do to make their individual lives worth living.40 Secondly, even if some conceptions of the good are more successful in securing and promoting principles of the right, the state ought not give them special praise, encouragement, or support at the level of constitutional essentials. Assuming that the duty of the state is to ensure fair terms of cooperation between free and equal citizens, the constitution laying out the basic rights and liberties shaping these conditions is the wrong place for promoting attractive conceptions of the good life. As we will see in the next part, whether the state ought to refrain from such recommendations on all levels of political action is a more controversial matter. Justificatory neutrality understood as: a) banning conceptions of the good as justifications for particular regulations (respect element) and b) not giving some conceptions of the good advantages over others (fairness element) seems to be the appropriate understanding of neutrality on this level. However, neutrality as equality of opportunity, too, might be attractive on this level. Rawls introduces the claim that people should have equal opportunities to pursue their conception of the good life on the level of constitutional essentials. The basic structure of society should be set up in a way to ensure a) that people have ‘a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all’41 and b) that the possibility to live according to one’s conception of the good is not compromised by arbitrary factors like social standing.42 Both of these requirements of justice contain a fairness element as well as a respect element. Basic liberties ensure an area of non-interference against both the state and other citizens and they are to be distributed equally. Rawls’s second principle aims to ensure that those basic freedoms have what he calls ‘fair value.’43 This requires a conscious effort to exclude irrelevant factors from influencing people’s ability to live the way they want. It thus aims at achieving some equal standing for all citizens. While justificatory neutrality is mainly focused on setting requirements on how constitutional essentials are to be decided on, neutrality as equality of opportunity provides suggestions concerning the content of these basic principles. Discussing whether justificatory neutrality or neutrality as equal opportu-

40 41 42 43

See Rawls (1999): A Theory of Justice, 27f. and Rawls (1996): Political Liberalism, 173–176. See Rawls (1996): Political Liberalism, 291. See Rawls (1999): A Theory of Justice, 63. For a more detailed discussion of the fair value of basic liberties, see below Chapter 6.

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nity is a more convincing conception of neutrality might therefore be an unhelpful exercise because these conceptions have different areas of application and do not directly compete with each other but might rather complement each other (as they do in Rawls’s work).

2.3.2 Political decision-making Many neutralists do not distinguish between constitutional essentials and ordinary legislation. The requirements of liberal legitimacy apply on the constitutional structure as well as on the level of ‘particular statutes and laws enacted in accordance with that structure’44 and provide a good reason to implement justificatory neutrality on this level, too. However, applying justificatory neutrality on the level of small scale political decisions is controversial. This is the level where perfectionists are most concerned about promoting obviously good and discouraging obviously bad conceptions of the good. And even if one rejects the idea of state support or discouragement for particular lifestyles and argues that the state should be concerned with justice and nothing else, there are political matters which simply cannot be decided in reference to some general principle of justice. Even when the state is restricted to matters of justice, it is concerned with more than basic rights and liberties. It is also concerned with coordination: There are matters which do not themselves concern rights but need to be decided to achieve the comprehensive and non-ambiguous distribution of rights and duties necessary for cooperation. However, there often are different ways how these matters can be decided. It is, for example, necessary to decide which side of the street to drive on, but there is no justice-based reason for either side. It seems wasteful and even inappropriate to throw a dice (or to resort to any other strictly ‘neutral’ procedure) when admitting arguments from conceptions of the good allows people to explain and defend their interests in these matters. Especially, since such a procedure would make many happy (this is assuming that the decision is made by majority vote) and imposes just an inconvenience (being outvoted in a non-fundamental matter) on others. Should really all considerations referring to questions of the good life be disregarded even on the lowest level of everyday politics? Rawls himself suggests that, while the requirements of public reasons are essential in fundamental matters, these restrictions may not apply with

44 See Rawls (1996): Political Liberalism, xlvi.

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regard to less basic matters ‘or if they do, not in the same way, or so strictly.’45 Peter de Marneffe even claims that the justification of neutrality – in his understanding the claim to liberal legitimacy – only warrants neutrality in matters concerning basic interests. Concerning non-basic interests he sees no reason why interests that do not require restrictions of freedom should take priority over interests that do.46 It thus seems as if justificatory neutrality is too harsh a criterion for everyday politics. On the other hand, it might seem that just referring to justificatory neutrality in these matters is not enough to accommodate the ideals underlying neutrality. Are substantial inconveniences entirely unproblematic just because the measure bringing them about refers to neutral reasons? In his evaluation of standards and levels of religious freedom, W. Cole Durham Jr. points out: Many of the major religious persecutions of the last two centuries have been carried out under the guise of formally general and neutral laws. All that is necessary is to pass laws that prohibit everyone in the population from engaging in conduct that is only of concern to a particular religious group in order to pass a law that will fulfil the rule of law requirement but still encroach on religious liberty. Note that often, this will happen not because of intentional animus against a particular group, but because those passing the law are unaware of its adverse impact on a lesser known religious group.47

This is the context where it becomes clear that there might be more to neutrality than justificatory neutrality. If it is impossible for the state not to influence its citizens’ ability to live according to their conceptions of the good life – even by restricting itself to neutral justifications – maybe the state needs to take additional measures to ensure that everyone is treated fairly. One way to account for this intuition is to equalise impact of regulations or the chances to pursue one’s conception of the good. However, as discussed above, such outcome focused conceptions of neutrality are beset with problems.48 In the context of discussions on accommodating cultural minorities, there are some recent attempts to develop conceptions of procedural justice which put stronger emphasis on equal attention to different interests than justificatory neutrality whilst avoiding

45 See Rawls (1996): Political Liberalism, 215. 46 See De Marneffe (1990): Liberalism, Liberty, and Neutrality, 259–262. 47 Durham (1996): Perspectives on Religious Liberty, 33. 48 It is on this level of individual political decisions where the objections against neutrality of outcome and neutrality as equality of opportunity relating to arbitrary standards apply with full force.

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the problems of outcome related conceptions of neutrality.49 I will discuss two such conceptions here and suggest that, while they by themselves are not satisfactory, they point in the direction of an understanding of neutrality that accounts for neutrality’s concern for respect as well as for its concern for fairness.

2.3.2.1 Neutrality as respectful non-identification Heiner Bielefeldt argues for a conception of neutrality as ‘respectful non-identification’ when discussing how to accommodate Muslim immigrants into the German state, which aims to be secular but is nonetheless deeply shaped by its Christian heritage.50 In his view neutrality cannot be discussed and implemented independent of freedom of religion and concern for the prerequisites of religious lifestyles. He thus claims that, to be neutral between different religions, the state has to refrain from close institutional links to organised religions and yet be aware of and respectful towards the different religious interests. This is necessary to avoid unknowingly disadvantaging some religions while unconsciously privileging others or non-religious lifestyles. Since his specific concern is to facilitate integration by a reconsidered conception of freedom of religion, he does not expand on this idea in general arguments. He rather suggests that consultations with different religious communities concerning their interests with regard to political decisions are important to ensure that freedom of religion is not a principle of mere toleration but of respect for people’s choices.51 However, his argument has a wider application: neutrality as respectful nonidentification claims that the state has to be impartial in conflicts regarding the good life and that – in order to be truly impartial – it has to be conscious of the various needs of the different parties and of how its non-essential decisions

49 See, for example, Joseph Carens’s claim that neutrality (focusing on the respect element) ought to be complemented by what he calls ‘evenhandednes’ (Carens (2000): Culture, Citizenship, and Community); Galeotti’s work on neutrality, toleration, and recognition ((Galeotti (1998): Neutrality and Recognition, Galeotti (2002): Toleration as Recognition), Catriona McKinnon’s discussions of toleration and diversity (McKinnon (2006): Toleration and McKinnon (2007): Democracy, Equality and Toleration)), and Alan Patten’s work on neutrality of concern (Patten (forthcoming): Liberal Neutrality: A Reinterpretation and Defense). 50 See Bielefeldt (2003): Muslime im säkularen Rechtsstaat, 16f. 51 Patten’s conception called ‘neutrality of concern’ addresses questions of religious accommodation in a similar way: since regulations are often inconsiderate, Patten argues that the state ought to give special consideration to people’s conscientious commitments. See Patten (forthcoming): Liberal Neutrality: A Reinterpretation and Defense.

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influence their respective chances to flourish.52 Unlike the outcome related conceptions of neutrality, this conception does not aim at a particular neutral outcome but rather claims that no outcome can be neutral unless all relevant considerations have entered the debate and have had a fair chance to influence public opinion.53

2.3.2.2 Relational neutrality Veit Bader develops a conception called ‘relational neutrality’ based on a balancing approach to neutrality. The different parties concerned ought all to be heard, and the aim is a set of compromises achieving fairly distributed accommodation.54 Relational neutrality replaced the idea of difference-blindness by difference-sensitivity. Only if we take into account actual differences and inequalities between religious groups and organizations, can we hope that institutions and policies will, in the long run, become more neutral in relation to these religions and to nonreligious people as well.55

52 The desire to get their voices heard and their interests taken into consideration motivates all kinds of life-style associations to demand a ‘politics of recognition’ rather than mere toleration from the state. Prominent examples are the gay and lesbian movements who demand that their identity is acknowledged and their interests taken into account when shaping policies. They demand, for example, that the traditional regulations concerning recognised partnerships/marriage are broadened to accommodate their interests, too. For a detailed discussion of the requirements of a politics of recognition and its tensions with the idea of neutrality, see Galeotti (1998): Neutrality and Recognition. 53 For similar claims that liberal equality requires ‘that politics must be organised so that it can be a theatre of moral argument and commitment based in the responsibilities of community rather than only another market for discovering passive revealed preferences,’ see Dworkin (1989): Liberal Community and Dworkin (1990): Foundations of Liberal Equality, 38. 54 In his work on religious exemptions in a society of equals, Stuart White proposes a similar approach for dealing with the challenge of achieving a fair distribution of exemptions from general laws and thus to allow some accommodation of particular religious interests without undermining the equal standing of citizens in society. He does not use the language of neutrality, but his approach can be seen as another way to do justice of the concern for equality underlying liberal neutrality. See White (2007): Religious Exemptionism in a Society of Equals. For the related claim that neutrality is not the same as indifference but an expression of respect for individual life-choices, see also Robert Goodin and Andrew Reeve. They argue that neutrality is not simply a constraint of government action but rather a teleological concern aiming at a political system which overall does not favour any conception of the good over another. This is compatible with accounting for interests stemming from conceptions of the good as long as these elements of special concern balance each other out in the overall evaluation. See Goodin/Reeve (1998): Do Neutral Institutions Add Up to a Neutral State, 201f. 55 Bader (1999): Religious Pluralism, 608.

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While Bielefeldt aims at a fair distribution of unavoidable burdens, Bader aims also at balanced support for the different cultural parties. Relational neutrality is part of his reply to what he regards the most severe flaws in the way current liberal political theory approaches the challenges of pluralism. He claims that the usually-invoked understandings of neutrality and public reason are problematic for two reasons: 1. they favour secular lifestyles over religious ones, and 2. seemingly neutral institutions/reasons hide the fact that public culture is predominantly shaped by the majority culture whilst at the same time preventing minority cultures to even voice their concerns.56 Bader’s approach emphasises the fairness element of neutrality over the respect element. He considers it more important to treat citizens as equals than to ensure that the state does not interfere with individual choices. In fact, the main thrust of his argument is against the usual understanding of the respect element of neutrality both in the sense of (complete) separation of institutionalised religion and state and in the sense of excluding religious reasons from public arguments. Instead he proposes ‘priority for democracy’ in the sense of a culture of debate which focuses on (concrete) rights rather than on the (abstract) principles justifying them and thus allows everyone to justify the relevant rights within their own religious or secular foundational framework. I think that Bader cannot dispense with the respect element of neutrality: to reach a fair compromise, some issues have to be taken off the agenda. As I will argue below, citizens must not be coerced to abide by laws based on principles they cannot be expected to reasonably accept. Their autonomy to decide for themselves in matters which do not touch the rights of others ought to be respected. What can be legitimate matters for state action thus ought to be decided with reference only to the requirements of fair terms of cooperation between free and equal citizens in modern constitutional democracies. The conceptions of justice appropriate to define these conditions are concerned with what political freedom, political equality, political fairness, and democracy require and entail. Nonetheless Bielefeldt’s and Bader’s contributions contain an important insight. Not everything can be decided with reference to neutral political concep-

56 Bader lists a total of eight objections to standard liberalism. The two I mention here roughly summarise his objections iv to viii (for a) and i to iii (for b). For more details see Bader (1999): Religious Pluralism, 598–603. For similar critiques see also Modood (1998): Multiculturalism, Secularism and the State and Galeotti (1998): Neutrality and Recognition.

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tions of the right: the question how respect and fairness are to be realised in this society depends on the features of this specific society and thus has to take into account the different cultural interests within this society and balance them fairly against each other. This requires a public debate where those interests are voiced and where the voices of minorities are ensured a fair chance of being heard, too. In the following chapters, I argue that the justification of state regulations ought to fulfil the requirements of justificatory neutrality, but that their implementation in a particular society needs to take seriously the idea of treating people holding different conceptions of the good as equals. Whilst considerations relating to comprehensive conceptions of the good life must not provide the reason for having a particular regulation, such considerations may inform the way the regulation is implemented without breaching neutrality providing that all parties concerned had a fair opportunity to make their interests heard. The main part of my project will thus be an attempt to work out a conception of neutrality appropriate for the everyday political decision making which can accommodate both the perfectionist challenge that justificatory neutrality is not necessary for this level as well as the multiculturalist challenge that it is not sufficient to express the ideals underlying neutrality.

2.3.3 Neutral behaviour of state officials There is one more area of application for claims about neutrality which is prominent in actual political debate but underrepresented in the philosophical literature: What does it mean for representatives of the state to represent a neutral state? I started this chapter with the example of the debates on whether teachers should be allowed to wear headscarves in schools. As described the different conceptions of neutrality mainly discussed in the philosophical literature – neutrality of impact, neutrality as equality of opportunity, and justificatory neutrality – are unhelpful in determining what neutrality requires in this case. Now I will show that neutrality understood as a twofold concept including a respect element as well as a fairness element provides a better foundation to discuss what neutrality requires with regard to representatives of the neutral state. One understanding of neutrality is uncontroversial when it comes to discussing requirements for representing the neutral state: when interpreting and implementing the regulations of the state and exercising power, state officials ought to treat all citizens as equals, they ought to be impartial. Personal conviction must not influence teachers, policemen, social aid administrators, or tax

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officials in the way they deal with those whom they encounter in their official capacity.57 The fairness element of neutrality is apparent in this context, but the respect element matters, too. In most contexts it is inappropriate for state officials to make recommendations as to how one should live one’s life or which religions, ideologies, and cultures are true or morally valuable. Administrators of social welfare and those associated with the judicial system ought not only apply the relevant rules impartially but also refrain from expressing their personal judgments on the permissible lifestyle-choices of the citizens before them – even if they consider them blatantly wrong. They ought to respect the freedom of citizens to make their own choices. There are several strategies to defend the claim that respecting the choices of citizens requires state officials to refrain from expressing their own conceptions of the good. Some argue that people might be intimidated by the official position and thus unduly influenced. Others claim that it is disrespectful to tell people that they made the wrong choices when one has no claim to superior knowledge.58 In the context of school and education, where the aim is not just to provide information but also orientation and guidance, there thus has to be a clear distinction between the values which ought to be taught according to the syllabus (which values can be part of such a public school syllabus is a different difficult debate) and the personal convictions of the teacher. The requirement for state officials to refrain from voicing their own opinions in their professional capacity is particularly strong for teachers because they are confronted with suggestible children. At the same time, it is particularly complex, since teachers cannot always avoid commenting on controversial matters. Blatantly biased and one-sided presentations are obviously inappropriate, but refraining from revealing one’s own convictions seems impossible as well as unhelpful. Debates on neutral education often refer to neutral procedures of discussion and argue that teachers ought to admit their bias and present the arguments on which they base their decision on as well as the relevant counterexamples and encourage students to engage in their own evaluation of the

57 The requirement of impartiality does not automatically lead to the claim that state officials must not treat citizens with different conceptions of the good differently: it could be state policy to treat Christians different from Muslims. This would obviously be a non-neutral regulation. But the officials still could execute it impartially, that is, without reference to their personal convictions. 58 One might argue that some public officials have a particular claim on superior knowledge in fields related to their professional capacity (members of the health ministry, for example, can claim some expertise on healthy living).

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reasons involved.59 This is the context in which Montefiore developed his conception of neutrality of impact: lecturers at universities ought to take measures to restrict their personal bias in presenting controversial debates to ensure that students are not unduly influenced by the opinion of an authority figure but make up their own minds. These procedures are designed for older students; on the elementary school level, there is much emphasis on not discussing too controversial and too complicated issues. But many questions on what is an appropriately neutral behaviour for teachers are still unsolved. In dealing with young pupils – and generally when dealing with people who are easily influenced and find it difficult to distinguish between an individual and her official role – the claim to impartiality is even more demanding than refraining from voicing personal opinions. Even passive statements of loyalty or belonging to a particular religion or ideology in the dress and appearance of state officials may be problematic. The question of whether a head-scarf wearing teacher influences the way pupils conceive Islamic identities is one which ought to be raised even if one is ultimately convinced that children have to learn to cope with a plurality of different life-choices. But it is not only the appearance of teachers that can present problems. The appearance of other state officials (or, in the case of Turkish Prime Minister Erdogan and Turkish President Gül, the appearance of their wives) has recently gained much attention. In the case of the headscarf-wearing teachers, opponents mostly rely on arguments emphasising the danger that children might be unduly influenced by this non-verbal statement to support one rather than another interpretation of Islam.60 In the case of politicians and administrators, opponents claim that (non-verbally) advertising one’s partiality to a particular conception of the good life raises questions of whether the claims of these officials to impartiality are convincing. It is argued that state officials ought to appear

59 See for example Gardner (1998): Neutrality in Education, 126 and Weinstein (2004): Neutrality, Pluralism, and Education. 60 While it seems fairly uncontroversial to minimise undue influence on children by banning teachers from wearing party emblems and other symbols advertising particular (controversial) lifestyles, the banning of religiously obligatory clothing encounters opposition from arguments based on free exercise of religion. Even the guarantee of freedom of religion is not unlimited and restricted by principles of justice. But while religious preaching clashes with the right to be free from religious indoctrination, which itself is part of freedom of religion, having to see a teacher wearing a headscarf might not amount to a sufficient level of harm to justify the limitation of the teacher’s right to live according to her beliefs. Furthermore, similar arguments can also be made based for non-religious ideologies and the status of religious claims might be less special than usually thought. It might therefore be equally problematic to ban teachers from displaying their non-religious loyalties.

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neutral to reassure citizens that they are indeed treated impartially (in the sense of seeing justice being done.) However, while the requirements of neutral appearance (verbally and nonverbally) seem convincing for people holding particular offices or within the administration of the state, they cannot be expected to hold in full for politicians in election campaigns, where they present their views on how the country could be rendered better or more just and on what convictions their ideas are based. The question what neutrality requires from representatives of the neutral state is thus very complex. Understanding neutrality as a two-fold concept helps to systematise rather than to solve the problems. The headscarf case highlights that there are different neutrality-related intuitions and that they can be in opposition to each other. 1. As representatives of the neutral state, teachers ought to be neutral, that is, they must not influence their pupils’ conceptions of religion and the good life in general. This seems to recommend that teachers should refrain from dressing in a way that clearly identifies them with one particular conception of the good. 2. However, the state itself also ought to be neutral, it should employ and support teachers independent of their religious affiliation. The state should therefore allow teachers to dress according to their own choosing and in particular respect religious dress requirements. The concern that teachers must not proselytise falls under the respect element of neutrality which aims to secure respect for individual choices. The concern that Muslim teachers are not disadvantaged falls under the fairness element of neutrality which aims to ensure that citizens are treated as equals. The main question therefore seems to be which element is more important in this context. Opponents of the headscarf argue that, with regard to teachers, the respect element dominates. The state in general might be obliged to allow headscarves in other contexts, but requirements for the position as a teacher are stricter and incompatible with wearing any sign of identification with one particular conception of the good life or religion or political ideology.61 Furthermore, becoming a teacher is a personal choice, and choosing this career involves committing oneself to the requirements of the position. As representatives of the neutral state,

61 This worry is expressed in the dissenting opinion of the of the judges Jentsch, Di Fabio, and Mellinghoff in the German Headscarf Case, 2 BvR 1436/02,77ff.

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teachers must not promote a particular conception of the good in the classroom. However, the question is whether wearing a headscarf by itself violates the requirement that teachers must not proselytise. The answer to this question has an empirical element and seems to depend on how pupils perceive their teachers’ visible religious commitments. If children conceive their teachers as an absolute authority – as primary school children are prone to do – then they might feel that they have to conform to what they think the teacher believes in. Secular and liberal Muslims expressed the fear that their children would feel obliged to conform to the interpretation of Islam and the role of women they associate with a headscarf even when the teacher wearing it does not actively encourage this.62 The motivation to conform is even stronger if most of the other pupils, too, are wearing headscarves (as it is the case in some German schools in areas mainly populated by immigrants). Such peer pressure is problematic. However, peer pressure exists in many respects, and banning headscarves does not address the real issues here. Rather, it seems of the utmost importance to teach children about the fact of reasonable pluralism and the requirements of fair behaviour towards those we disagree with. Children in a liberal pluralistic society also need to learn the difference between the teacher as a person and the teacher in his or her official role. They need to learn to cope with the fact someone can be an authority in one respect despite the fact that we disagree with many things this person – as an individual – stands for. The school more generally needs to convey that it is permissible to have a different religious belief and overall conception of the good from the teacher (and anyone else!) and to teach children to behave respectfully and fairly even to those they disagree with.63 Nonetheless, the respect element requires that teachers be careful to avoid influencing their students unrelated to their role at school. This means that there is a case for supporting a ban of party emblems, T-shirts with political slogans, or headscarves in the class room. The argument that children need to learn about pluralism does not undermine this argument, but it weakens its strength and suggests that – all things considered – there is a case for allowing headscarves. One relevant consideration which tells against a strict understanding of the respect element is the concern for fairness and equality among teachers. We do not want to exclude people from the teaching profession simply because of their

62 2 BvR 1436/02, 115. See also Ates (2007): Der Multikulti-Irrtum, 119–138. 63 The judges in the German headscarf case argued that the school is the very place where children are to be taught how to be tolerant and how to handle cultural and religious diversity. See 2 BvR 1436/02, 65.

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religious faith and ethnic background. Even if we accept that there are requirements for everyone who wants to be a teacher, it still seems problematic if we set the requirements in a way that disadvantages one particular group of citizens without a very good reason. As I said before, not every disadvantage is problematic from the point of view of neutrality. Whether banning headscarves for teachers is a problematic disadvantage depends on the context. In the German case, there is a long tradition of Christian nuns and monks teaching in public schools in religious dress. As long as these teachers respect the requirement not to proselytise and not to advantage or disadvantage pupils according to their religiosity, this has been seen as – perhaps not ideal – but compatible with the overall neutrality in schools. Saying that – other things equal – teachers should be allowed to wear a Christian habit but not a Muslim headscarf obviously breaches the requirement of treating citizens as equals.64 The legitimate options are thus either banning all or allowing all symbols relating to permissible conceptions of the good. From the point of view of respect for teachers’ freedom, allowing all is preferable. From the point of view of respect for students’ freedom from being unduly influenced, banning all seems preferable. From the point of fairness, both options seem to be at first sight equivalent. However, given the context, this assumption can be challenged. While banning all religious dress does not disadvantage Muslim headscarf wearers against nuns and monks, it does disadvantage them vis-à-vis believers whose religious symbols are more compatible with mainstream fashion. Furthermore, in the German context where Muslim immigrants often feel treated as second-class citizens as it is, banning all religious symbols now – in view of opposition to headscarves in schools and after allowing Christian symbols for a very long time – can be interpreted as a further indication that the German state is hostile towards Islam and does not respect the religious beliefs of immigrants. The French case is different to the German case with regard to the fairness element. In the French situation, there has not been the kind of accommodation for any religious interests that was – and still is – common in Germany. Laicism is an important public norm and the separation between public sphere and religion has always been more rigorous. While there still are arguments for allowing headscarves based on the individual freedom of teachers, the fairness

64 This presupposes that both the habit and the headscarf are symbols of permissible conceptions of the good. The concern for equality does not exclude the possibility that state officials are prohibited to display symbols that stand for conceptions which are blatantly incompatible with the understanding of citizens as free and equal persons. This would hold true for swastikas and possibly the Burka.

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element does not provide a further reason to allow headscarves. Banning teachers from wearing headscarves cannot be as easily interpreted as a specifically anti-Islamic measure in this context. The philosophical concept of neutrality by itself thus cannot provide a clear policy proposal in the question whether teachers should be allowed to wear a headscarf in school. However, understanding neutrality as a twofold concept explains why proponents as well as opponents of permitting teachers to wear headscarves can legitimately refer to neutrality. This suggests that whatever option is adopted, it needs to be complemented with ensuring that the reasoning for why this proposal is chosen is publicly defended and some concern is shown to the element of neutrality which has been outweighed. When banning teachers from wearing headscarves, it must be made clear that this is not because headscarves are in themselves objectionable or because there is any intention of excluding Muslim women from the teaching profession. When allowing teachers to wear headscarves, additional measures need to be taken to convey to the pupils that this does not mean that this is a requirement for every Muslima or for every decent women.

2.4 Neutrality as a two-fold concept In the previous section, I differentiated between three different contexts of political neutrality concerning citizens’ conceptions of the good life: a) constitutional essentials, b) political decisions and regulations, and c) the behaviour of state representatives. I suggested that different understandings of neutrality discussed in the literature – neutrality of impact, neutrality as equality of opportunity, and justificatory neutrality – are more or less appropriate in these different contexts and that disregarding the context therefore confuses the debate. I also suggested that all concerns relating to neutrality are either explained in terms of fairness in the sense of treating citizens as equals or in terms of respect for people’s individual freedom and in most cases in terms of both, even though one might be more prominent than the other. The concept of neutrality overarching all the different conceptions thus includes 1. an element of respect tracing the intuition that there are matters the state has no business to get involved in, and 2. an element of fairness suggesting that the state should treat citizens as equals and give appropriate attention to the interests of all its different citizens.

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As just described by the example of the headscarf case, how these two elements are interpreted and weighed against each other depends on the context of the specific claims to neutrality. In his critique of neutralism, Raz distinguishes between two similar elements, which he calls a) the exclusion of ideals and b) neutral political concern.65 He claims that – even though most neutralists do not differentiate between them – they are two different (and possibly even conflicting) approaches to anti-perfectionism. By anti-perfectionism he means the principle ‘that implementation and promotion of ideals of the good life, though worthy in themselves, are not a legitimate matter for government action.’66 Neutral political concern according to Raz entails treating valid and invalid conceptions of the good equally: the principle commands the government to make sure that its actions do not help acceptable ideals more than unacceptable ones, to see to it that its actions will not hinder the cause of false ideals more than they do that of true ones.67

The exclusion of ideas, on the other hand, means according to Raz, that the fact that some conception of the good is true or valid or sound or reasonable, etc., should never serve as a reason for any political action. Nor should the fact that a conception of the good is false, invalid, unsound, unreasonable, etc. be allowed to be a reason for a political action.68

Raz’s presumption in both cases is that it is possible to identify some conceptions of the good as true and valid (e.g. being a truly caring and competent nurse), whereas others are objectively bad and mistaken (consuming destructive drugs). This distinction, he claims, is no harder to draw than the distinction between the right and the good on which neutralists rely. He righty claims that neutralists prevent themselves from supporting Maria Teresa just as they hinder themselves in stopping alcoholics from ruining their lives. And he rightly claims that neutralists prevent themselves from basing laws on the true and valuable idea of compassion nor may they outlaw meanness.69

65 See Raz (1986): The Morality of Freedom, 107f. 66 Raz (1986): The Morality of Freedom, 110. 67 Raz (1986): The Morality of Freedom, 111. 68 Raz (1986): The Morality of Freedom, 136. 69 Moreover, since Raz rejects the distinction between the right and the good neutralists rely on, the consequences of ‘neutral political concern’ and the ‘exclusion of ideas’ are more radical

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He discusses and dismisses the two approaches separately.70 I agree with Raz that neutral political concern (which is similar to the fairness element) and the exclusion of ideals (which is similar to the respect element) are different criteria. However, I claim that both elements are necessary for a full account of neutrality in any given situation.71 On the one hand, the fairness element only makes sense if some topics are taken off the agenda before starting to ensure fair equality. Excluding ideals from entering into political debate, on the other hand, is neither possible in all cases nor always desirable and has to be complemented by a concern for fairness in the sense of treating citizens as equals and giving appropriate concern for their different lifestyles. While the two elements are closely connected, neither of them can be reduced to a concern falling under the other approach. They thus require separate justification. Unlike Raz, I think they can both be defended. In the following chapters, I will argue that Rawls’s conceptions of citizens as free and equal provides a suitable foundation for neutrality as a two-fold concept. Because citizens are understood as free, that is, as persons equipped with the two moral powers for a conception of the right and the good, the state must not coerce them to adhere to regulations the principles of which they cannot be expected to reasonably accept. Since the only principles which citizens can be expected to reasonably accept relate to principles describing fair terms of cooperation between citizens understood as free and equal persons equipped with two moral powers, the state may only refer to political conceptions of justice but must abstain from relying on comprehensive conceptions of the good life. Because citizens are understood as equal in the sense of possessing the two moral powers as well as the powers of reason to the minimal degree required to be fully cooperating members of society, they are to be treated as equals and shown equal respect and concern for their different life-choices.

and unattractive than the consequences of neutrality as a two-fold concept. He discusses, for example, that neutral political concern ought to take the interests of would-be rapists into account. See Raz (1986): The Morality of Freedom, 115. 70 His rejection of neutral political concern is based on the problems associated with egalitarianism mentioned above (expensive tastes, levelling down, arbitrary standards etc.). His argument against the exclusion of ideas is based a) on the problem of distinguishing the right and the good and the question of whether neutrality is a coherent notion and b) on a more general attack on the connection between statehood and coercion underlying the common justifications of neutrality. See Raz (1986): The Morality of Freedom, 110–162. 71 I use the term neutrality for the overarching theme, which Raz calls anti-perfectionism.

3 The right and the good Perfectionists like Joseph Raz and Georg Sher claim that liberal neutrality is an unattractive, unjustifiable, and infeasible idea. They argue that there might be good reasons for the state to tolerate undesirable or problematic life-styles, but no reason to exclude conceptions of the good from influencing political decisions generally. Furthermore, they argue that the distinction between the right and the good as used by neutralists is not feasible. In the following I will briefly discuss the difference between neutrality and toleration and then address the challenge of unfeasibility. I will discuss the perfectionist challenges concerning the justifiability of liberal neutrality in Chapter 5.

3.1 Neutrality versus toleration Generally, neutrality requires a situation where two or more parties disagree and the party which is requested to be neutral is a) not itself part of the conflict but b) nonetheless in a position to influence it.1 This general description covers the role the state plays vis-à-vis the conceptions of the good life of its citizens as well as the context of warfare, in which the term first appeared in political thinking. It also shows why neutrality is different from toleration, even though it is in some senses its historical successor.2 In the case of toleration, the second condition is fulfilled: the third party can influence the well-being of the disputants.3 However, the first condition does not apply; toleration, unlike neutrality, does not require 1 See Waldron (1989): Legislation and Moral Neutrality, 63. There is one relevant difference between the cases: in the context of international justice, all three parties are states, while, in the context of neutrality within the state, the neutral party is a particular state, while the conflicting parties are citizens of this state who hold different conceptions of the good life. Nonetheless, both of Waldron’s requirements apply. 2 There is a historical link between toleration and neutrality. John Locke provides first arguments why there are areas of life where the state must not get involved in. See Locke (1990 [1689]): A Letter Concerning Toleration. These arguments are limited in scope, but the logic developed in them was later used to justify a more extended application consisting not only in limited religious toleration but neutrality concerning questions of the good life more generally. 3 This impact used to be rather great in the case of the edicts of toleration in European history where governments granted toleration in the sense of limited freedom of religion from a position of superior power. The impact of citizens not tolerating each other is much less severe, and, within the constraints of a liberal state, it amounts to little more than annoying each other. From the perspective of minorities, however, this historically implied power dynamics is a reason to reject the language of toleration and to insist rather that their demands are within the domain of equal freedom for all.

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not taking part in the conflict and refraining from having (and expressing) a position. Toleration means saying ‘I think you are wrong, but I will not hinder you from going on in your wrong ways.’ The claim that the state must not judge what is good or bad, which distinguishes neutrality from toleration, is at the focus of the most fundamental critiques of neutrality. Perfectionists say that there often are good reasons for the state to tolerate different conceptions of the good and even to refrain from voicing opinions in many cases. Nonetheless, there are lifestyles which are obviously so bad that it would be wrong if the state refrained from condemning them as problematic at the very least. Sometimes there is even reason to actively interfere with people living in bad ways, for example by creating incentive structures to guide them to better conceptions of the good.4 As liberals they agree that in most cases there are good reasons to refrain from coercing people to live in a particular way but argue that where such reasons exist what is required is toleration rather than neutrality. They also believe that there are some undisputedly good elements of people’s lives and that there are circumstances where publicly supporting or institutionally facilitating the pursuit of such elements of the good life results in circumstances that are better for everyone.5 The background of this claim is that perfectionists argue that the distinction between obviously better and obviously worse conceptions is no harder to draw than that between permissible and impermissible conceptions of the good. Rather, it is easier to get people to agree to basic values like friendship, charity etc. than to get them to agree on what justice requires. They therefore claim that the requirements of legitimacy are better fulfilled relying on a perfectionist account of fundamental values than on a shaky distinction between the right and the good. Perfectionists thus have two distinct claims against neutralists in this context: 1. They argue that the reasons neutralists give for a moral duty of the state to refrain from committing to obviously attractive conceptions of the good and condemning plainly unattractive ones, are not conclusive.

4 See Raz (1986): The Morality of Freedom and Sher (1996): Beyond Neutrality. 5 A second difference between toleration and neutrality refers to the fact that both individual persons and the state could potentially be obliged to be tolerant, while neutrality concerning conceptions of the good life only makes sense as a requirement for the state (and its representatives within their official capacities). It is not the individual who is under any obligation to refrain from forming and expressing an opinion on how neighbours, friends, or strangers live, it is the state (and the office holder).

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2. They claim that the distinction between matters of the right, where the state ought to get involved, and matters of the good, where it must not get involved, cannot be drawn sufficiently stringent to make neutralism a feasible political or even theoretical option. In this chapter I will focus on the second claim and try to show that this distinction can in fact be drawn. In the following chapters, I will argue that there are sufficiently good reasons for liberal neutrality rather than toleration.

3.2 The right versus the good The distinction between the right and the good is central to the idea of liberal neutrality. For neutrality to make sense at all, there needs to be a class of values the state must not be neutral towards. For example, the state must not be neutral towards the claim that it should be neutral, or fair, or democratic. Neither is the state allowed to be neutral towards ways of lives that deny or infringe the rights of others. As mentioned above, the class of matters the state must be neutral towards is described as ‘conceptions of the good life.’ By contrast, the class of matters the state must not be neutral towards is called ‘the right’ or ‘principles of justice.’ In the literature the distinction between the right and the good is usually drawn with regard to the kind of claim specific moral statements make. W.D. Ross’s classic definition describes the good as what is desirable and the right as what is obligatory.6 For the purpose of deciding in which matters the state ought to be neutral and in which matters it must not be, this understanding of the right and the good is not helpful. As Peter Jones points out, ‘The right and the good as used in this context may be sharply separated by the standing given to each but they are not therefore sharply separate in content.’7 The teacher insisting to wear her headscarf in school claimed that her religion obliged her to wear it – not that wearing a headscarf was something good in general. Distinguishing the right and the good according to the kind of claim it makes on us does not help to answer the question which matters are legitimately the concern of the state. We need a distinction regarding contents. The content of the right are principles of justice. However, the reference to justice might be seen as begging the question: the question ‘What is justice?’ is probably the one question

6 See Larmore (1998): Right and Good and Ross (2002): The Right and the Good. 7 Jones (1989): The Ideal of the Neutral State, 28.

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looming over most controversies of political and moral philosophy. Focusing on content directly thus means getting involved into the endless debates on what justice requires and thus does not lead to a feasible general distinction either. Yet, the claim that the right is different from the good does not as such engage in the debates concerning the content of justice – which is the focus of political and moral debates – but rather its structure. In Rawls’s terms, we are interested in the concept of justice rather than in particular conceptions of justice.8 In singling out principles of justice and contrasting them with conceptions of the good, we thus do not need to develop a full theory of justice but rather show that the kind of questions justice is concerned with are structurally different from the kind of questions conceptions of the good are concerned with. All different conceptions of justice focus on what fair treatment entails in particular situations. Justice is concerned with different kinds of distributions of material things, of respect, of rights etc. and refers to considerations of equality, desert and need when evaluating which distribution is fair in a given situation. The Routledge Encyclopedia of Philosophy defines justice by recourse to Aristotle as suum cuique tribuere – to allocate to each his own.9 Rawls distinguishes ‘the concept of justice as meaning a proper balance between competing claims from a conception of justice as a set of related principles for identifying the relevant considerations which determine this balance.’10 David Schmidtz simply states ‘Justice concerns what people are due.’11 All these statements suggest that justice is concerned with claims that people have against each other. Justice thus concerns a particular set of interpersonal relations; it considers the relationship between people only in terms of ‘who owes whom’ and disregards all considerations of affinity or antipathy or whatever else may determine a particular relationship. What matters for justice are the duties people owe to other people and the rights they have against other people. Justice is thus not concerned with the question of whether people make good use of the things at their disposal but rather with how these (material and immaterial) things are to be distributed. This shows that justice is not the only value; considerations of beauty, truth, virtue, excellence etc. are also important elements of the moral universe. Justice is not even the only value in the domain of interpersonal relations: sympathy, friendship, loyalty, philanthropy, and the like are other important considerations for human interaction. Nor is justice the most important of these in all circumstances.

8 See Rawls (1999): A Theory of Justice, 5. 9 Barry/Matravers (1998, 2004): Justice. 10 Rawls (1999): A Theory of Justice, 9 [My emphasis]. 11 Schmidtz (2006): Elements of Justice, 7.

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Furthermore, justice is not concerned with all things that are obligatory but only with obligations and duties that we owe to other people. In particular, justice is not concerned with duties towards God(s). Nor is justice concerned with people as human beings as such but rather with a specific kind of relations between them, namely the relations determined by rights and duties. The content of justice depends on the content of these rights and duties. The structure of justice concerns only questions of who owes whom.

3.3 Theories of rights But what do we owe to each other? Which rights do we have? And which duties? Is everything we owe to each other a matter of justice? Is every matter of justice a legitimate concern of the state? The first important distinction is between contractual rights which stem from a contract or promise among different parties and rights that people have merely in virtue of some kind of relationship (like being fellow human beings). Understanding contractual rights is not the problem. If we agree that I pay for lunch if you proofread my chapter, you are entitled – you have right – to me paying lunch if you indeed proofread my chapter. However, for the distinction between the right and the good as necessary for liberal neutrality, these rights are not helpful. What we need here is a theory explaining the kinds of rights that people have in virtue of being in some kind of often involuntary relationship with other people which sets the framework for what justice requires from us (and incidentally also explains why we have a right that our contract-partners fulfil their end of the contract). The rights that people have against each other simply in virtue of being fellow human beings are often called ‘natural rights’ or ‘human rights.’12 I will call them ‘basic rights’ to avoid the immediate identification with the particular rights in human rights declarations. In most cases these rights will be the same, but at this point I like to present the theory as a way to determine which rights should be on the list of rights that humans have in virtue of being human rather than as a way to explain why particular rights are on the actual lists. In the following I will therefore very briefly sketch first (1) the two most discussed understandings of what it means to have a right and then (2) two ways

12 For the implications of each title, see Jones (1994): Rights, Chapter 4.

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of how rights might be justified, which are often understood to be linked with these theories. The most important theories explaining the nature of rights are: 1. interest theories of rights, and 2. choice theories of rights. Interest theories of rights claim that rights protect interests that are important enough to impose duties on someone else.13 That is, I am entitled to X on the reason that I need X and my need in X is sufficiently important to hold you under a duty to not prevent me from enjoying X or even under a duty to help me acquire X. Different theories differ in their evaluation of which interests qualify to be sufficiently morally relevant to receive the protection of a right. Some proponents of interest theories of rights seem to suggest that prima facie every one of the interests considered fundamental can create a duty in someone else. For example, the interest in a minimal degree of security and liberty imposes duties of non-interference whereas the interest in minimal means of agency imposes a duty to support those who fail to help themselves. However, these rights and duties have to be balanced against each other. The right to a minimal basic income, for example, is limited by property rights of others. The most difficult question is where the correct balance lies. The most important constraint for the balancing process is the claim that the interests and rights of everyone matter equally. Mackie uses a gravity-like model to illustrate this: each person is represented by a point-centre of force (rights), where the strength of the force (right) declines the further it moves away from this centre.14 Choice theories of rights understand rights as titles someone has against someone else, titles that this person can choose to call-in or to waive. Rights thus mostly refer to a claim relationship between specific persons concerning the use of some physical components. Hillel Steiner considers all rights to be ultimately property rights.15 A right either prohibits others using certain physical components at a specific time or obliges them to provide such things. It ensures the freedom of the right-holder to use – undisturbed by others – a certain set of external objects necessary for the action he intends to do. Unlike in the case of interest theories, it is not possible under a choice theory to claim that two people have a right to the same thing.

13 See Raz (1984): Right-based Moralities, 182 as well as Raz (1986): The Morality of Freedom and Dworkin (1977): Taking Rights Seriously. 14 See Mackie (1984): Can there be a right-based moral theory?, 177. 15 See Steiner (1994): An Essay on Rights, 93.

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There is a multitude of different justifications for basic rights. Peter Jones, for example, discusses claims of self-evidence as well as arguments from natural law, human worth, moral agency, contractualism, self-ownership, and consequentialism. I will focus on two very rough groupings which I consider the most plausible candidates for explaining why we have basic rights and duties: 1. needs theories, and 2. status theories. Need theories are nothing but interest theories, I choose a different name only to make the point to distinguish between a) what it means for an interest theory to have a right and, b) how these rights are justified. As said above, the reason for having a right in this understanding is that one has an interest fundamental enough to hold someone else under a duty to help with satisfying this interest. The crucial question is which interests are the ones which qualify as sufficiently fundamental to generate rights. As Jones points out, the reference to needs is helpful to show that the relevant interests do not really relate to wants but to something less volatile.16 However, as he also points out, it does not get us very far, since we still need to answer the question ‘What for?’17 This is, where different need theories come into play: some base the relevant needs upon the interests people have to function as a human being, as a moral agent, as a citizen in a particular political system, etc. What unites the different theories is the need for a background theory of which interests and/or needs matter and why. Status theories do not focus on what people need to function in a particular way but rather on what they are owed in virtue of their status as a human being, as a Kantian end in itself, as a moral agent, as a citizen in a particular political system etc. Again there are different theories spelling out what it means to treat someone appropriately according to which relevant status. And again, what we need is a background theory which explains this. What distinguishes the interest theory of rights from the choice theory of rights is a different understanding of what it means to have a right and consequently a different understanding of how the rights and duties of different people relate to each other. What distinguishes need theories from status theories is whether the content of rights is justified with reference to the interests and needs someone has in a particular role or whether it is defended with reference to the

16 See Jones (1994): Rights, 148. 17 See Jones (1994): Rights, 150.

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dignity of their roles. What unites these two theories of rights is the need for an underlying theory of fundamental human values or interests. As shown above, there is much controversy regarding the particulars of rights. However, this diversity of theories underlying the idea of rights should not distract from the fact that within liberalism there is a shared basic understanding of what rights are and also a common understanding of what their purpose is. As Jones summarises: to have a right is commonly understood as having a title against others.18 And, with the possible exemption of consequentialist and utilitarian theories, basic rights are generally understood as to protect something that is fundamental to human beings (if understood in a particular way). What also unites the different understandings of rights is the need for a background theory explaining what the fundamental aspect is and how it translates into particular titles against others.

3.4 Thin versus thick conceptions of the good We thus need a theory of fundamental values or interests. To uphold the distinction between the right and the good, it is necessary to show that these fundamental values or interests are something very different from the conceptions of the good which are contrasted with principles of the right. The idea is that there is something like a thin theory of the good underlying the rights and duties which make up the principles of the right which in turn determine the legitimate sphere for pursuing comprehensive – thick – theories of the good. This refers to the distinction Rawls introduces in A Theory of Justice: 1. thin conceptions of the good, 2. principles of the right, and 3. thick conceptions of the good.19 Most of the moral commitments we express in everyday life fall in the second two categories: ‘art ought to be beautiful,’ ‘friends help each other,’ ‘equal work merits equal pay,’ ‘stealing is bad’… Thick conceptions of the good concern all those matters that shape the picture of what people think makes life worth living. Principles of the right concern what people owe to each other.

18 See Jones (1994): Rights, 36f. 19 See Rawls (1999): A Theory of Justice, § 60, 347–350.

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Thin conceptions of the good are more likely found in philosophical debates than in everyday conversations: Rawls introduces the distinction between thin and thick theories of the good to explain how the parties in the Original Position choose between different principles of justice.20 To do that he has to show that there are thin conceptions of the good that provide reasons for the parties to choose his principles of Justice as Fairness instead of other principles. Whilst these conceptions have to be substantive enough to give us reasons to prefer one conception of justice to another, they must not be thick conceptions of the good because the knowledge of their specific value commitments and attachments is not available to the parties behind the Veil of Ignorance. I refer to the distinction between thin and thick theories in a different context to Rawls. I am not discussing the choices of parties in the Original Position behind the Veil of Ignorance. Yet, I refer to the same distinction to explain how principles of the right determining fundamental rights and duties can rely on some values without undermining the distinction between the right and the good (in a comprehensive sense). It would be convenient if all elements of thin theories of the good were obvious, self-evident, and uncontroversial, but unfortunately they are not. Still, whilst there is probably not a single claim relating to goodness that every human being agrees on, there are some things that quite a few people – perhaps all reasonable people – agree on, and one might think that something most people agree on is likely to be a good candidate for a thin conception of the good. However, in one sense this is mistaken. It is more likely that citizens agree on a principle of justice, like ‘murder is wrong,’ than that they agree on the reasoning why murder is wrong. Some think murder is wrong because God prohibits it, others rely on utilitarian arguments, others yet on particular ideas of natural rights etc. It is important to note that thin conceptions of the good are not the lowest common denominator of ethical principles but rather the background principles that make sense of why we think that something is right or good. Nonetheless, there is a sense in which thin theories of the good refer precisely to matters people agree on at a very basic level. People who agree that murder is wrong usually also agree that human life is something valuable. There are different reasons for why one thinks that this is the case, for some this is only the case because God ascribed value to it, for others it is intrinsically valuable, for others yet being alive is a necessary condition for experiencing the happiness that is the purpose of all morality. There are also different interpretations of what follows from this general idea and how it relates to other fundamental moral

20 See Rawls (1999): A Theory of Justice, Chapter VII. Goodness as Rationality.

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commitments. There even is disagreement on the question as to the relevant understanding of human life, when it begins, when it ends, and what minimal conditions it has to meet. Yet, despite all this disagreement, there is some shared sense of the value of human life, and most of us think that there is something seriously wrong with someone who does not see human life as valuable at all. That is, there is a sense in which such components of a thin theory of the good are at the focus of an overlapping consensus.21 The idea that human life is valuable is thus a good candidate for an element of a thin theory of the good, it explains at least one of our firmly held moral intuitions, why murder is wrong, and it is an element of most moral theories. Thin theories of the good are concerned with the foundations of goodness and rightness. However, some reasons for thinking why murder is wrong (God prohibits it) are not elements of thin theories while others (human life is valuable) are. There are some ideas (the claim that good means good for someone, some principles of rationality and psychology, and some primary goods) that are shared at a very basic level by most people, even though they allow many different interpretations. Such ideas seem good candidates for being thin conceptions of the good. Still, this suggestion is very far from being an efficient tool for identifying elements of thin theories of the good and thus for defending the distinction between the right and the good (in a comprehensive sense) as a noncircular distinction. Before I continue my discussion of how to identify elements of thin theories of the good, it is necessary to make some general statements about the nature of moral argument. Moral reasoning is complicated and not at all straight-forward. Even if we assume a distinction between elements of thin theories of the good, principles of justice, and thick theories of the good, we do not assume that moral reasoning is simply deductive. It is not the case that every convincing argument starts from one or more uncontroversial elements of a thin theory of the good, deduces from this a principle of justice, which then informs how each of us can

21 I use Rawls’s term of an overlapping consensus because it expresses the kind of consensus that is at stake: a consensus that is more than the smallest common denominator but rather the focus of shared principles that are interpreted in different ways. However, in one sense the use of the term is misleading. Rawls talks of an overlapping consensus in a different context. Rather than discussing the structure of the moral universe, he uses the term when discussing how political liberalism is possible despite reasonable pluralism. He therefore talks about an overlapping consensus of all reasonable (thick) conceptions of the good life. The conception of reasonableness which Rawls employs here, however, is itself best understood as a thin conception of the good.

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pursue that value in our own fashion. Rather, in most cases we discover and defend elements of thin theories of the good in the same way as we discover and defend other moral claims. Usually, we do not automatically assume them to be more secure or more likely to be true than other moral claims. The feature that sets them apart is their subject matter: they are concerned with the background theories of why anything is just or good. A plausible way to identify any moral principles is based on the method which Rawls calls ‘reflective equilibrium.’ Rawls claims that, while we cannot take any moral convictions as self-evident, we can arrive at justified beliefs by finding an equilibrium point between our intuitions concerning particular situations and our convictions concerning the moral principles that might guide and explain these intuitions.22 As Scanlon points out, Rawls adopts a three step procedure: 1. identifying a set of considered judgements about justice (where ‘considered’ means that conditions that are likely to distract from the relevant moral features of the situation are excluded), 2. formulating principles that account for these judgements (where ‘accounting for’ means giving an explanation that if simply applied reaches the same conclusion as one’s considered assessment of the situation), and 3. deciding how to respond to the divergence between the principles and one’s considered judgements.23 In this third step, we are challenging our principles with considered moral judgements concerning particular cases and our considered judgements with convictions concerning general principles. This method of going back and forth between different levels of generality and between different applications of principles of justice provides first of all coherence. Norman Daniels expands on the theory of reflective equilibrium by introducing an additional consideration: background theories that explain how certain considered judgements are supported by the principles of justice we believe to be true. These background theories get challenged – just as the considered judgements and the moral principles are – and the process results in a wide reflective equilibrium, supporting a set of coherent and well-supported moral convictions.24

22 See Rawls (1999): A Theory of Justice, 17–19. 23 See Scanlon (2003): Rawls on Justification, 140–144. 24 See Daniels (1979): Wide Reflective Equilibrium and Theory Acceptance in Ethics, 256–282.

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I believe that the best way to identify elements of a thin theory of the good is to look at those background theories which remain constant through the process of shaping and reshaping a wide reflective equilibrium between one’s moral convictions. They are the elements that emerge again and again as the explanatory background for those moral principles that concur with considered judgements we feel strongly convinced of. When challenging these ideas, it is the challenge rather than the intuition which fails. Identifying thin conceptions of the good is thus part of – rather than prior to – the project of developing a moral argument. It is thus not possible to give in advance a list of thin conceptions of the good. All I can do here is to suggest that: 1. Moral considerations that are clearly linked to particular thick conceptions of good and are not widely shared are unlikely to be suitable candidates. 2. Moral conceptions that do not rely on particular thick conceptions of the good, explain and motivate a wide range of other moral conceptions, are compatible with even more, and do not conflict with any other equally firmly hold moral convictions, are good candidates. Whether I can defend the distinction between the right and the good (in a comprehensive sense) necessary for liberal neutrality to be feasible depends on whether I am able to provide a sufficiently convincing thin theory of the good which allows to identify particular rights without reference to comprehensive conceptions of the good.

3.4.1 Rawls’s thin theory of the good Rawls’s thin theory of the good is based on a definition of goodness which has three stages: 1. A is a good X if and only if A has the properties (to a higher degree than the average or standard X) which it is rational to want in an X, given what X’s are used for, or expected to do and the like (whichever rider is appropriate); 2. A is a good X for K (where K is some person) if and only if A has the properties which it is rational for K to want in an X, given K’s circumstances, abilities, and plan of life (his system of aims), and therefore in view of what he intends to do with an X, or whatever;

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3. The same as 2 but adding a clause to the effect that K’s plan of life, or that part of it relevant in the present instance, is itself rational.25 The obvious question here is to ask ‘But what is rational?’ Without providing a full account of Rawls’s reasoning here, I take rational in this context to relate to concerns about efficiency and utility. I thus understand this threefold definition to respond to the following three intuitions about goodness in general: 1. Nothing is good (or bad) as such. Things are good with regard to a purpose or aim or some other rationale for considering some things better than others. 2. There is a second respect in which goodness has to be indexed: most things are good for someone only in particular circumstances including the circumstance of what kind of being this someone is. 3. While goodness refers to a particular someone in particular circumstances, it is not fully subjective, that is, nothing is good simply because someone thinks it is. Following these general requirements, a thin theory of the good therefore needs to consist of three distinct elements: 1. a principle (or set of principles) determining with regard to which end/aim/ purpose the goodness is to be assessed, 2. general principles of rationality, which explain what it takes to achieve this end/aim/purpose better or more successfully given human nature, interests, capacities, etc., 3. primary goods, that is, ‘things which it is supposed a rational man wants whatever else he wants.’26 Rawls’s thin theory of the good consists of these particular components: with regard to the first element, Rawls claims that the goodness at stake is the goodness of lives understood with reference to a rational life plan. The idea is that,

25 Rawls (1999): A Theory of Justice, 350f. 26 Rawls (1999): A Theory of Justice, 79. Rawls distinguishes social primary goods (rights, liberties, opportunities, income, wealth, and self-respect) from natural primary goods (health, vigour, intelligence, and imagination). Only social primary goods are directly distributed by the basic structure of society. Nonetheless this structure also influences the handling of natural goods. See Rawls (1999): A Theory of Justice, 54.

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for a life to be good, it has to respond to the ideas the agent has of what he wants to do with his life. The reference to a ‘plan’ thus does not indicate that the person has a schedule of what she wants to do when, but rather that she sets herself tasks and aims to live up to them. What tasks she plans to fulfil is a different question: the plan might centre around a liberal ideal like developing her particular abilities to the fullest degree possible, but it could equally focus upon a religious ideal like submitting herself to the authority of her church and following the example of her saviour. The reference to ‘rational’ does not rule out religious or other lifestyles which are contrary to some understandings of rationality but rather links to the particular circumstances of this person. Which plans of life are rational for a particular person depends on her interests and abilities but also on her situation in life. A plan is rational if – given the particular circumstances – it stands a sufficiently good chance to be fulfilling, rewarding, or successful.27 The general idea is that goodness for human beings consists in the rational pursuit of a plan of life which is rational for this particular human being to have. This idea is seen as being a general model within which the goodness of any particular life can be described and assessed. With regard to the second set of components of a thin theory of the good, Rawls refers to general principles of rationality like the principle of effective means, the principle of inclusiveness, and the principle of greater likelihood.28 He claims that a plan of life is generally better if it is pursued effectively, if it includes more rather than fewer desirable components, and if it has a better chance to be successful. Rawls furthermore includes psychological principles, in particular the Aristotelian principle, in the set of considerations which define the thin theory of the good. The Aristotelian principle claims that ‘other things equal, human beings take more pleasure in doing something as they become more proficient at it, and of two activities they do equally well, they prefer the one calling on a larger repertoire of more intricate and subtle discriminations.’29 While this particular principle might be contested,30 Rawls’s overall case that a

27 Rawls defines the good life as the life a rational person would choose if she had full knowledge of her situation (including her own present and future interests, desires, and needs). The biggest challenge is to see whether a particular plan is rational given the imperfect knowledge we have about our own interests, abilities, and needs and about our chances for success given the ever changing circumstances of our lives. See Rawls (1999): A Theory of Justice, 358–361. 28 See Rawls (1999): A Theory of Justice, 361f. 29 Rawls (1999): A Theory of Justice, 374. 30 Rawls introduces the principle as a ‘psychological law’ (Rawls (1999): A Theory of Justice, 375) and a ‘natural fact’ (Rawls (1999): A Theory of Justice, 376). However, coming from a philosopher rather than a psychologist, this claim might be contested.

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thin theory of the good includes facts about what motivates human beings in general is convincing given the understanding of goodness as depending on claims about the kind of being that is to be benefited. The third set of components of thin theories of the good, primary goods, is the least controversial one. The idea that whatever else we want or need, we certainly benefit from ‘rights, liberties, and opportunities, and income and wealth’ as well as from ‘health and vigour, intelligence and imagination’31 is deeply imbedded in the political culture of modern democratic societies as well as in our constitutions and bills of rights. While Rawls thinks that his list of primary goods is evident enough not to require an argument, it is assumed that this list could be defended with reference to the other two sets of considerations which are part of the thin theory of the good.32 That is, underlying Rawls’s thin theory of the good are some very basic assumptions about the nature and fundamental interests of human beings. Human beings are conceived as rational agents who take an interest in shaping their life according to their own (comprehensive) conceptions of what is right and good.

3.4.2 Dworkin’s thin theory of the good Ronald Dworkin provides a similar thin theory of the good in his challenge model of ethics. He is particularly interested in a suitable foundation for the right to autonomy. He argues that autonomy as a right is not necessarily based on placing great value on the capacity for self-determination as it is done in more comprehensive – thick theories – of liberalism like those of Kant, Mill, and Humboldt. To value autonomy one does not need to subscribe to the claim that ‘[t]he true end of Man […] is the highest and most harmonious development of his powers to a complete and consistent whole’ as Humboldt does.33 Dworkin argues that the right to autonomy can be based on the more modest and general understanding that ‘the value of a good life lies in the inherent value of a skilful

31 Rawls (1999): A Theory of Justice, 54. Rawls distinguishes between social primary goods (the first set mentioned) and natural primary goods (the second set). He furthermore gives special attention to the social primary good of self-respect which he considers to possibly be the most important primary good. See Rawls (1999): A Theory of Justice, 386. 32 See Rawls (1999): A Theory of Justice, 381. In his later work, Rawls provides some more discussion on the particular rationale underlying basic liberties, see Rawls (1996): Political Liberalism, Lecture VIII. The Basic Liberties and Their Priority. 33 Humboldt (1854): The Sphere and Duties of Government, Chapter 2, 11.

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performance of the tasks of living.’34 While Humboldt’s account emphasises rationalist ideals and self-realisation through education etc., Dworkin’s model is compatible with many more and very different lifestyles because it is for everyone to decide for himself what he considers the tasks of living to be and what skilful performance entails. All that is required is that people develop some conception of what they think a good life entails and some standards to evaluate their own performance in this respect. While Humboldt’s concern for autonomy aimed at people becoming responsible self-legislators in a Kantian sense, Dworkin’s model can be adopted by someone who sees his goal in life in following a specific religious doctrine and skilful performance of such a lifestyle might include forms of self-denial and submission to clerical authorities that would positively disgust Humboldt. However, he does not claim that deciding for oneself is all that matters: he distinguishes volitional (desire satisfaction) and critical well-being (getting what one should want) and argues that the goodness of lives depends on the latter.35 Someone who is choosing unsuitable challenges will not lead a good life no matter how skilful he proves in pursuing them. Like Rawls above, Dworkin’s thin theory of the good makes reference to all three requirements for defining any good: 1. To be good, the good in question must be good/helpful for achieving a particular aim: in the challenge model of ethics, something is good if it helps to pursue a chosen life-plan. 2. Any good must be good for a particular kind of being: The challenge model of ethics presupposes once more that humans are beings that are interested in leading their own lives according to their own convictions – whatever they may be. 3. Goods are not merely subjectively good but also objectively good: like Rawls, Dworkin assumes that there are some goods that everyone should want whatever else they want. Dworkin’s account of such fundamental interests and values is more extensive than the one Rawls provides, but it is still plausible to see these values as elements of a thin rather than thick theory of the good. Both are concerned with very basic assumptions of what we need to consider when thinking about the goodness of lives – rather than a full-blown account of what makes any particu-

34 Dworkin (1990): Foundations of Liberal Equality, 54. 35 Dworkin (1990): Foundations of Liberal Equality, 46.

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lar life better. His challenge model of ethics is sufficiently abstract that it is a common background assumption of all (or at least enough) conceptions of the good to be considered a thin – rather than a thick – theory of the good.

3.5 Another complication So far I have argued that it is possible to distinguish matters of the right from matters of the good by the content: justice is concerned with rights, that is, with what people owe to each other. The right thus focuses on one particular relationship between people which is shaped by nothing but rights and duties. To determine the content of such rights and duties, it is necessary to rely on some account of people’s fundamental interests or what is generally due to this particular kind of being in and thus on some ideas about the good. As I have shown, it is possible to distinguish between thick and thin theories of the good. Thin theories of the good are made up of shared background assumptions which are compatible with a wide range of very different more concrete – thick – conceptions of the good. They concern considerations about what one has to take into account when talking about the goodness of lives rather than the particular answers and interpretations of these considerations. I presented the accounts that Rawls and Dworkin provide for identifying and defending such general moral claims. My account so far, however, does not yet provide answers to the questions of what we owe to each other, which rights and duties we have, and whether everything we owe to each other is a matter of justice. The key question is thus: what do we really owe other people? And why? In my discussion on how rights might be justified, I suggested that both need theories of rights and status theories of rights rely on an underlying thin theory which explains what people are due because of their either fundamental interests or their status as people in the relevant sense. Different theories differ in which understanding of people, persons, human beings, agents, etc. they consider relevant. These understandings thus refer to different roles which we might play and which determine our relationships with other people. What we owe to someone else often is related to the role we inhabit with regard to that person: we have duties to specific others in virtue of being a parent, a teacher, a business partner, a fellow club member, or a faithful Catholic. The duties we have and the corresponding rights of others are determined by the features of the role. It is obvious that many of these roles are closely linked to thick conceptions of the good, if not entirely defined by them. Such rights and duties are clearly unhelpful to define the distinction between the right and the good.

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What liberal neutralists require is an account of the right which includes an account of rights which do not depend on particular – thick – conceptions of the good. One might think that the most appropriate role for defining our fundamental rights and duties in this sense is the most abstract and thin one, that is, our role as human being. However, there are different ways to define what it means to be a human being and many ways in which some of these understandings of humanity might be linked to thick conceptions of the good. Humboldt’s claim about the true end of mankind certainly does not sound particularly general: [t]he true end of Man, or that which is prescribed by the eternal and immutable dictates of reason, and not suggested by vague and transient desires, is the highest and most harmonious development of his powers to a complete and consistent whole.36

This shows that duty defining roles can be insufficiently thin in two different senses. Duty defining roles are unsuitable as foundations for the distinction between the right and the good if: 1. the role itself is one defined by a particular thick conceptions of the good, 2. the understanding of the role and the rights and duties following from it are determined by additional concerns which are based on thick conceptions of the good. The discussion so far shows that, whilst principles of the right are different from thick conceptions of the good and can be identified as relating to a different subject matter, some principles of the right are so closely interwoven with thick conceptions of the good that they fail to be sufficiently freestanding. When referring to principles of justice in the justification of neutrality, it is therefore necessary to show that these principles are motivated and explained solely with reference to a thin theory of the good.

3.6 Comprehensive versus political conceptions To determine an appropriate distinction between the right and the good to enable liberal neutrality, it is thus necessary not only to specify a thin theory of

36 Humboldt (1854): The Sphere and Duties of Government, Chapter 2, 11.

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the good but also to give some information concerning which roles identify those rights and duties which make up the right in this context. For the purpose of liberal neutrality, it is less important to find a general meta-ethical theory to explain the exact difference between thin and thick theory of the good and how best to describe roles only with reference to the former. What we really need are criteria to help us citizens to see which concerns we can legitimately expect our fellow citizens to accept as suitable candidates for thin theories of the good. For this purpose it is suitable to limit the scope of the argument to the matters we really need to find agreement on: the foundations informing legitimate political institutions. I find it helpful here to refer to Rawls’s distinction between comprehensive and political conceptions. Rawls introduced the distinction in response to critiques to his Theory of Justice, which claimed that his thin conception of the good was still too thick or rather that he referred to many other values in the assumptions describing his Original Position and leading to the choice of his principles of fairness. In Political Liberalism Rawls therefore finds it necessary to introduce even stricter requirements for justifications of public principles of justice and introduces a distinction between: 1. comprehensive conceptions, and 2. political conceptions.37 This is a distinction relating to the subject matter of justice. While comprehensive conceptions include moral convictions concerning all areas of life, political conceptions are restricted to only include ideas about what is of moral importance in the political sphere.38 Comprehensive conceptions of justice are concerned with all possible roles of people defining rights and duties in all kinds of different relationships between people. Political conceptions of justice by contrast refer only to those roles which are relevant in the political context, most importantly the role of citizens in a society understood as a fair system of cooperation between free and equal citizens. Scope is not the only difference between the two levels of moral reasoning: while comprehensive doctrines are free to base their assumptions and arguments on all possible religious, philosophical, or ideological backgrounds, political doctrines have to be based on ideas that are – at least implicitly – present in the political culture of the respective state. This way, Rawls claims, they can be

37 See Rawls (1996): Political Liberalism, xvii. 38 See Rawls (1996): Political Liberalism, 12–14.

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considered as part of an overlapping consensus. They consist only in ideas which citizens with all kinds of different comprehensive doctrines can reasonably be expected to agree on, because these ideas already are – at least implicitly – part of their comprehensive doctrines (as long as these are reasonable).39 The necessary reference to ‘reasonable’ seems to be at odds with the claim to exclude controversial ideas. The reference is necessary because the overlapping consensus cannot be some compromise or lowest common denominator. Rather, it has to be a cluster of ideals so fundamental that they are included in every conception of the good life which endorses the ideal of a liberal democratic society.40 Conceptions of the good life which deny or contradict the idea of a liberal democratic society as such do not share this culture and cannot be part of the overlapping consensus without turning the consensus into a mere compromise. However, as I will argue in Chapter 4, the particular understanding of reasonableness that Rawls employs here can be seen as a thin conception of the good and thus as unproblematic in this context. Rawls does not explain the relationship between the distinction between thin and thick theories of the good and the distinction between political and comprehensive doctrines. Given that he does not refer to the distinction between thin and thick theories of the good in the context of discussing what kind of justifications are compatible with liberal legitimacy, it might seem that this distinction really only matters in the context of what motivates people’s choices in the Original Position. However, as discussed above, I think that the distinction is helpful for discussing which kinds of considerations are appropriate for justifying principles of justice and thus for determining the appropriate distinction between the right and the good necessary for liberal neutrality. Thin theories of the good can still be comprehensive in a particular sense: they are concerned with what makes lives good not only in the political context but generally. The same is true of principles of justice. Duties of friendship, for example, might be sufficiently freestanding in the sense of not relying on any particular thick theory of the good

39 Matthew Clayton distinguishes between three distinct requirements for political conceptions: (a) they have a distinct subject matter relating only to the basic structure of society, (b) they are sufficiently freestanding, where what it means to be freestanding is defined independently from the distinction regarding subject matter, and (c) the reference to an overlapping consensus. See Clayton (2006): Justice and Legitimacy in Upbringing, 9. I claim that the requirements (b) and (c) can be seen as the distinction between thin and thick theories of the good that Rawls discusses in A Theory of Justice and that (a) is the additional requirement motivated by the concern for liberal legitimacy. 40 See Rawls (1996): Political Liberalism, 150–154.

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but rather on a thin theory of the good which responds to the psychological fact that friendship generally is something that improves and enriches human lives. Nonetheless, Rawls claims that considerations like this are not suitable for being part of public justifications because there is too much controversy concerning what friendship means and what weight it should be given vis-à-vis other values. The same is true of other values, like distributive justice, but unlike distributive justice friendship is not something that is necessarily part of the rules we need to set up a working political society, and people therefore cannot reasonably be expected to adhere to one public understanding of it. What we would ideally need is a fully worked out meta-ethical theory which is both philosophically sound and sufficiently clear for ordinary citizens to immediately see which matters belong to thin conceptions of the good and which belong to thick conceptions of the good. In the absence of such a theory, Rawls’s approach helps us focus our search on relevant aspects of thin theories by limiting the scope of our search.

3.7 The need for a thin political theory of the good In the discussion above, I hope to have shown that it is possible to distinguish between thin theories of the good, principles of justice, and thick theories of the good. I have furthermore suggested that the distinction between the right and the good as it applies to liberal neutrality not merely requires that the right consists of principles of justice based on a theory of basic rights but rather of a particular set of principles of justice, namely those relevant for determining the rights and duties of citizens. Nonetheless, I have not provided an easy way to point at any particular value or possible right and determine immediately into which of the above categories it falls. Rather, the discussion shows that there is plenty of room for evaluation and debate as to which values really are part of a thin theory of the good and which rights exactly make up the right the state might legitimately interfere with. Yet, the discussion showed that there are some clear demarcations which set limits on such debate. As will be clearer from Chapters 6 and 7 below, I do not think this limited vagueness a disadvantage of my theory but rather as providing a suitable sphere of democratic debate and decision making. However, the discussion so far shows that what I really need to provide is my account of a thin political conception of the good which can be seen as a suitable starting point both for distinguishing the right and the good in my conception of neutrality and for justifying this conception of neutrality at all. In particular, I need to argue why the state ought to be limited to matters of the

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right understood in this sense. In Chapter 4 I will present a detailed account of a Rawlsian political thin theory of the good and explain why it is a good starting point for discussions about which matters the state can legitimately be concerned with.

4 Grounding neutrality The previous chapter started with presenting the perfectionist challenge that neutrality is unattractive, indefensible, and infeasible. It aimed to counter the challenge of infeasibility by drawing a distinction between the right and the good. The right was identified with principles of justice based on a thin political conception of the good. This chapter presents a suitable thin political conception of the good: Rawls’s conception of society as a fair system of cooperation between citizens as free and equal. This conception is suitable in two respects: 1. It helps to identify the rights and duties which make up the right which limits the permissible scope for individual thick conceptions of the good. 2. It provides the foundation for justifying the idea of liberal neutrality. As argued before, liberal neutrality – as discussed in current debates in politics as well as philosophy – combines two claims, even though most philosophers do not clearly distinguish between them: 1. There are matters the state has no business to get involved in (respect element). 2. The state ought to treat citizens as equals and thus show appropriate concern for all its citizens’ different conceptions of the good life (fairness element). Justifications of neutrality can fail for one or more of the following reasons: 1. they are unable to do justice to neutrality as a principle of justice rather than as a solution to a practical problem that could just as well be solved nonneutrally should the balance of power change, 2. they are not sufficiently freestanding, thus rendering the idea of excluding conceptions of the good from influencing political decisions arbitrary, 3. they address only one of the two intuitions underlying neutrality while implicitly relying on the other, and/or 4. they cannot provide a suitable rationale for drawing the necessary distinction between the right and the good. In this chapter I present Rawls’s conception of citizens as free and equal, and in the following chapters, I show that it provides a suitable foundation for justifying neutrality:

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1. It justifies explicitly moral claims. 2. It is sufficiently freestanding in the sense of being a thin political conception of the good. 3. It motivates the double commitment to respect and fairness that underlies neutrality as a two-fold concept, and 4. it provides a suitable rationale for the distinction between the right and the good. Rawls introduces the idea of citizens as free and equal as part of the political culture of modern democratic states. This chapter shows that Rawls’s conception is part of the overlapping consensus between the comprehensive doctrines citizens of such societies hold and thus the foundation of shared normative commitments.1 Nonetheless, even if the motivation to abide by such normative commitments is linked to people’s comprehensive doctrines, this chapter also shows that the conception itself is freestanding and independent from any particular conception of the good life. Rather than drawing on any metaphysical, biological, or psychological understandings of the person, Rawls derives the idea of citizens as free and equal from the idea of society as a fair system of cooperation over time. The latter is itself part of a thin theory of the good.2 As we will see in detail in Chapter 5, Rawls’s conception of citizens as free motivates the intuition that the state ought to respect its citizens and must not get involved in matters beyond its task of ensuring fair terms of cooperation. Chapter 6 shows that Rawls’s conception of citizens as equals supports the fairness element of neutrality with its claim that equal citizenship requires more than formally equal rights. By showing the connection between the understanding of citizens as free and that of citizens as equal, this chapter provides the foundation for seeing how neutrality is one concept, even though it is a two-fold concept. Chapter 7, finally, shows that Rawls’s conception identifies the right with the preconditions for fair terms of cooperation between citizens understood as free and equal persons equipped with the two moral powers. It thus determines which is the morally relevant relationship determining the contents of citizens’ rights and duties and their scope of application.

1 I follow here Quong’s understanding of the role of the overlapping consensus. See Quong (2011): Liberalism without Perfection, Chapter 6. 2 See Rawls (1996): Political Liberalism, 18f.

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4.1 Society as a fair system of cooperation over time Rawls presupposes that the political culture of modern constitutional democracies is committed to the understanding of society as a fair system of cooperation over time.3 Despite all their differences, people committed to modern understandings of constitutional democracy agree that: 1. social interaction within society ought to be guided by a set of publicly recognised rules (rather than anarchist or despotic arbitrariness), 2. these rules ought to be fair, they ought to confirm to a political conception of justice (rather than based on arbitrary power distributions), and 3. the system ought to be of benefit to the cooperating individuals (so that they have a reason to voluntary cooperate under such terms even when they are not saints).4 Whether citizens in modern constitutional democracies actually believe this is an empirical question. It is a thin political conception (given that it only focuses on the political realm and does not yet give any specifics as to what fair terms of cooperation entail), but there is no doubt that there are individuals living in modern constitutional democracies who reject these claims. Anarchists, for example, might object to the idea that society ought to be guided by publicly recognised rules. Despots reject the idea that such rules ought to be in any way fair. Religious fundamentalists might think that it is not important if citizens benefit personally as long as society adheres to the commands of God. However, as Rawls says, his theory of Justice as Fairness ‘starts from within a certain political tradition.’5 If one is sympathetic to the idea of modern constitutional democracy for moral rather than pragmatic reasons, these are claims one accepts.6 It can thus be seen as a thin theory of the good which underlies

3 See Rawls (1996): Political Liberalism, 15. 4 See Rawls (1996): Political Liberalism, 16. 5 Rawls (1996): Political Liberalism, 14. 6 There are pragmatic reasons, too: introducing liberal principles like toleration was a practical solution to the wars of Reformation. In referring to the compromises ending the Reformation wars, Rawls is sometimes seen as providing a pragmatic defence of liberalism. See, for example, Kymlicka (1992): Two Models of Pluralism and Tolerance. However, it is very clear that this reference refers to a historic process in which toleration started off as a mere modus vivendi, as a way to end religious wars, but grew into something else. See Rawls (1996): Political Liberalism, 159. When referring to the political culture of modern democracies, Rawls refers to the evolved liberal culture which values toleration not only as a pragmatic solution to dispute but considers respect for the convictions of others intrinsically valuable and virtuous.

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different comprehensive conceptions. This is particularly true of the first (the necessity of general rules) and the last claim (the system as designed to benefit its members): rational self-interest alone might motivate citizens to agree that society should be regulated by publicly recognised rules thus ensuring stability and predictability. Ensuring these goals, however, does not require that the rules are actually fair. From a Hobbesian perspective, public order is so fundamental that self-interest would recommend adherence even to unfair rules – provided the benefits of social peace outweigh the personal disadvantages, that is, as long as mere survival is ensured. This is why Rawls’s conception does not rest on self-interest alone but presupposes commitment to the political culture of modern democracies: supporting this moral ideal of democracy entails that one is not merely interested in stability but rather in stability for the right reasons.7 This includes democratic participation and concern for all citizens (rather than just for the powerful – stability endangering – ones). Stability for the right reasons requires fair terms of cooperation. The idea of society as a fair system of cooperation is therefore freestanding in that it does not depend on any particular conception of the good life, but only presupposes a commitment to the idea of modern constitutional democracy for whatever moral reasons there may be.

4.2 Citizens as equipped with two moral powers The understanding of society as a fair system of cooperation over time informs the understanding of personhood relevant in this context: ‘we say that a person is someone who can be a citizen, that is, a normal and fully cooperating member of society over a complete life.’8 Rather than starting from a particular conception of personhood and then designing a model of society appropriate to it, Rawls starts from the (vague and complex but relatively widely shared) idea of modern democracy and then extrapolates from this which features are necessary for persons conceived as citizens. Given the account of fair terms of cooperation above, citizens – understood as people capable of forming a society guided by fair terms of cooperation – are to be seen as capable of: 1. voluntary adherence to moral rules (even when these do not always directly serve self-interest),

7 See Rawls (1996): Political Liberalism, 140–144. 8 Rawls (1996): Political Liberalism, 18.

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2. developing and agreeing on a shared understanding of political justice, and 3. developing and rationally pursuing a conception of the good. Rawls therefore ascribes to them two moral powers: a capacity for a sense of justice and a capacity for a conception of the good.9 The capacity for a sense of justice entails ‘the capacity to understand, to apply, and to act from the public conception of justice which characterises fair terms of social cooperation.’10 This capacity enables citizens to look beyond their own interests and causes. Rawls links this capacity to his understanding of reasonableness:11 having a sense of justice enables citizens to be reasonable and thus to endorse the idea of reciprocity. ‘Reasonable persons, we say, are not moved by the general good as such but desire for its own sake a social world in which they, as free and equal, can cooperate with others on terms all can accept.’12 While the capacity for the right does not commit citizens to hold a truly impartial view of their needs in comparison to the needs of others, it enables them to see others in more than a simple relation of mutual benefits: the interests of others are seen as prima facie valid claims. The capacity for a conception of the good entails the ability to develop and hold at each moment in one’s life a more or less explicit understanding of what makes one’s own life worth living and what one is striving for. It entails the capacity to pursue these ideas in a rational manner and also to change and adopt them to new circumstances and insights. The two moral powers enable citizens to form a society which is a fair system of cooperation over time: they have the moral incentive as well as the personal motivation to cooperate on terms of reciprocity and mutual respect. The claim that persons have these two capacities is again empirical. As it is more detailed, it seems to be more demanding than asserting that society should be a fair system of cooperation. But the idea of citizens being equipped with such powers is still entirely entailed by accepting the moral idea of modern constitutional democracy. The very idea of a political system presupposes that there is need for coordination given that people have different ideas of what makes their life worth living and occasionally get into each other’s way in pursuing their individual conceptions. If modern constitutional democracy is seen as a viable political option, then it is necessary to presuppose that citizens are capable of rationally pursuing personal ends whilst at the same time being

9 See Rawls (1996): Political Liberalism, 19. 10 Rawls (1996): Political Liberalism, 19. 11 See Rawls (1996): Political Liberalism, 52. 12 Rawls (1996): Political Liberalism, 50.

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able to appreciate the interests of others as valid claims and thus as to be reconciled with their own life choices in a way that is fair to everyone. If citizens are not committed to respecting fellow citizens as valid sources of claims, then their political institutions could not conform to the ideal of society as a fair system of cooperation.

4.3 Citizens as free and equal persons The commitment to democracy which shapes the political culture of modern democracies includes a commitment to freedom and equality. Much of the disagreement within our political culture concerns how freedom and equality are best understood. Rawls approaches this question from the point of view of the two moral powers. Citizens are considered free in virtue of having the capacity for a conception of the good and the capacity for a sense of justice. Citizens are considered to be equal in virtue of possessing these capacities to the minimal degree necessary to function as fully cooperating members of society if they choose to do so.13

4.3.1 Citizens as free Rawls claims that having the two moral powers provides a reason for considering citizens as free in three respects: 1. ‘they conceive of themselves and of one another as having the moral power to have a conception of the good,’14 2. ‘they regard themselves as self-authenticating sources of valid claims,’15 and 3. ‘they are viewed as capable of taking responsibility for their ends.’16 By having the capacity of framing, revising, and pursuing a conception of the good, citizens are, first of all, free in the sense that they are conceived as in some respect independent of their conceptions of the good and the right. They are not fully determined by their convictions about justice and the good life. This is a

13 14 15 16

See Rawls (1996): Political Liberalism, 19. Rawls (1996): Political Liberalism, 30. Rawls (1996): Political Liberalism, 32. Rawls (1996): Political Liberalism, 33.

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claim about political versus non-political identity. I take this to mean that, while our ideas about what makes life worth living determine what kind of person we are, we do not stop being the same kind of citizen if we change our mind about some aspects of the good – even if such changes are profound or sudden. While we become a different person from the point of view of our conception of the good, we stay the same from the vantage point of the political conception of the person. The political conception of the person is formal and thus does not change if the content of a person’s convictions changes. However much we change our ideas about the good and the right, we are still assumed to be capable of forming, revising, and rationally pursuing moral conceptions. Indeed, we are exercising this capacity in changing. Whether we follow a traditional way of life without much reflection or whether we are radically examining every possible conception of the good and the right, from the point of view of the state we are assumed to be beings capable not only to pursue but also to reconsider and change our ideals. As long as this assumption is not seriously challenged by proofs of grave incompetence, such as serious mental illness or coma, etc., we are entitled to whatever fair terms of cooperation require with regard to citizens understaad as people equipped with these moral powers. Freedom relates to the separation between the political view of the person and the non-political or moral evaluation of a particular individual. This indicates that we cannot ever lose or irrevocably give up the fundamental rights of persons equipped with two moral powers – even when our conception of the good sometimes motivates us to waive the exercise of some rights at particular times.17 Secondly, the freedom of citizens relates to the idea that citizen can make valid moral claims on behalf of themselves. This is a claim about the status of citizens and the respect they are owed. Rawls contrasts the status of citizens with the status of slaves to illustrate this point: the interests of slaves do not matter at all. ‘Laws prohibiting the maltreatment of slaves are not based on claims made by slaves, but on claims originating from slaveholders, or from the general interests of society.’18 By contrast, citizens can make claims on behalf of themselves. They are seen as self-authenticating sources of valid claims. To recognise that others also have the capacity for a conception of the good provides reasons

17 However, some of these rights, like freedom of movement, association, etc., can be restricted or even suspended for some time where this is necessary to protect the rights of others (for example, in case of an epidemic) or as punishment (as, for example, for prisoners). But in cases where citizenship rights are suspended or limited, the argument in favour of these restrictions is made from the protection of the rights of others not from the evaluation of the moral character of the person. 18 Rawls (1996): Political Liberalism, 33.

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to consider their interests as prima facie valid claims providing they are compatible with the public conception of justice. Citizens’ capacity for a sense of justice enables and motivates them to give each others’ interests a fair hearing. Interests stemming from particular conceptions of the good are therefore not seen as valid in virtue of the contents of any particular theory of the good but rather because they are expressed by a citizen. Thirdly, persons equipped with the two moral powers are considered free in the sense that they can assume responsibility for their choices. Because they have the capacity to develop and reconsider their conception of the good, they cannot be seen as determined by any such conception and are thus accountable for the consequences of their actions. In particular, Rawls emphasises that citizens have to adjust their personal ends to what they can reasonably expect to achieve under the circumstances of fair terms of cooperation. This understanding of freedom is necessary for the claim that citizens ought to only pursue conceptions of the good which are compatible with the public conception of justice. This understanding of citizens as free persons is clearly moral and seems again more demanding than the preceding claims about the two moral powers and the understanding of society as a fair system of cooperation. Rawls’s political conception of the person has often been criticised as not being freestanding but instead relying on a controversial and false conception of personhood. The first claim (about the freedom of citizens relating to the distinctiveness of the political and non-political identities) as well as the third claim (about the ability of citizens to adapt their conception of the good to their circumstances) have been at the centre of communitarian critiques of liberalism. Communitarians claim that this political understanding of the person presupposes an implausible conception of personhood: the idea that a person is able to draw a line between herself and her conception of the good is not feasible.19 The thinking and assessing person cannot be separated from her conception about how one should think and what is relevant and good and important, that is, from her foundations of thinking and evaluation. Furthermore, these foundations of her thinking cannot be considered as self-chosen, but rather reflect the person’s social and cultural context and the different roles she plays in different communal attachments. The idea of a person being able to autonomously choose her conception of the good from scratch – what Sandel calls an ‘un-

19 For the most influential accounts see Sandel (1982): Liberalism and the Limits of Justice, 150–165, McIntyre (1981): After Virtue, Chapter 15, and Bell (1993): Communitarianism and Its Critics, 24–54. See also Mulhall/Swift (1996): Liberals and Communitarians, Kymlicka (1989): Liberalism, Community, and Culture, Chapter 4 and Kymlicka (1996): Two Models of Pluralism and Tolerance, 88–90.

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encumbered self’20 – is empirically implausible. However, while developing one’s conception of a good life certainly is very different from designing one’s living space by picking furniture from a catalogue and while there might be some deep commitments that one is unable to question, there is no doubt that individuals have ample opportunities to reflect, adopt, and change many of their commitments. I take Rawls as not denying that there are some deep commitments that any particular individual might not be able to consciously consider, let alone reconsider and change. He is not concerned with the extent to which people are able design their own lives. Nor does he address the question whether people should do so or even if people generally do so. Rather, he analyses what kind of understanding of personhood is underlying the idea of democratic citizenship in a polity committed to fair terms of cooperation. His comments do not concern what people are or should be but with how we need to understand them in their role as citizens in order to assign to them the appropriate rights and duties. Kymlicka poses a related challenge by asking how the political understanding of citizens as free and equal persons relates to how these individuals understand themselves. There could be tensions, especially in cases where people do not see themselves as free and equal persons but as, for example, God’s humble servants. He asks how such citizens can be expected to agree to Rawls’s political conception of personhood and to treat their fellow citizens correspondingly rather than according to their own conviction that they are damnable sinners.21 Kymlicka discusses this to shed doubts that the understanding of citizens as free and equal is really freestanding. He argues that, judging from Rawls’s conclusions, his conception is committed to the value of autonomy and thus comprehensive rather than political. I believe that Kymlicka misunderstands what Rawls means by freestanding and political. Since the political conception of justice is thought to be embedded in the political culture of modern liberal democracies, it is not value free, nor is it something all citizens necessarily agree on. His theory is freestanding only in the sense of not starting with a particular conception of the good. It is political rather than comprehensive in that it is only concerned with the rules governing the relations between persons in their capacity as citizens. As described above, Rawls starts with the idea of liberal democracy and analyses what it entails. Liberal democracy entails that citizens are understood as having the two moral powers and thus as being free and equal and entitled to the relevant rights and bound by the relevant duties. It does not entail that

20 See Sandel (1982): Liberalism and the Limits of Justice, 94. 21 See Kymlicka (1996): Two Models of Pluralism and Tolerance.

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citizens, as individuals, conceive of themselves (or of their neighbours) as free and equal. They may think of themselves as faithful believers and of their neighbours as damnable sinners. They may not, however, deny them the rights they are due when conceived as free and equal persons in a fair system of cooperation. Again, Rawls is not concerned with convincing anyone that liberal democracy is the way to go. He assumes that most citizens of western democracies are already committed to this ideal. What matters to him is to find out what the ideal of liberal democracy actually entails. He argues that we can infer from the commitment to fair terms of cooperation that we already are inclined to see people as free and equal persons equipped with the two moral powers. Fair terms of cooperation under circumstances where persons’ interests clash presuppose two things: 1. They presuppose that people are able to acknowledge that a fair distribution of the available resources might leave them with fewer resources than they require for fulfilling their life’s ambition. 2. Fair terms of cooperation rely on the idea that people are able to adjust their individual conceptions of the good to what they can expect under fair terms of cooperation. If we assume that fair terms of cooperation are not totally unrealistic, we need to assume that citizens have the ability to balance their interests against the interests of others. Observing ourselves and our fellow citizens supports this assumption, even if not everyone exhibits this ability consistently to the fullest degree. In view of the assumed ability to reconsider and change, it is thus reasonable to distinguish between the moral identity of a person at any time and her political identity. The rights and duties attached to the latter can be considered as independent from the choices of the former. The idea that citizens are free in the senses described above therefore does not presuppose problematic assumptions about the nature of personhood. Rather, since these understandings of freedom are derived from the ideas of society as a fair system of cooperation and of citizens as being equipped with two moral powers, which are derived from nothing but the moral understanding of constitutional democracy with its general commitment to freedom and equality, they, too, can be considered as freestanding in the relevant sense. The political view of the person is, in this sense, opposed to philosophical, religious, or ideological conceptions of personhood. In aiming at a political rather than a comprehensive liberalism, Rawls attempts to avoid relying on traditional liberal ideas of personhood. He does not want his conception of justice to depend on a view like Humboldt’s that ‘[t]he true end of Man […] is the highest and most

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harmonious development of his powers to a complete and consistent whole.’22 While this might be an attractive liberal conception of humanity, Rawls realises that the commitment to democratic procedures is compatible with other ideas about what the true end of mankind or its true nature might be. Some Christians, for example, support democratic ideas because they believe this is the model most consistent with the idea of human beings as created in God’s image and thus equipped with a certain dignity. In using a formal conception of personhood derived only from the idea of fair terms of cooperation and focussing only on the faculties necessary for this idea to work, Rawls avoids basing his theory on a too comprehensive and controversial foundation.

4.3.2 Citizens as equal In Rawls’s theory the conception of citizens as equal is second to and dependent on the conception of citizens as equipped with the two moral powers for a conception of the good and the right. Rawls writes: ‘Their having these powers to the requisite minimum degree to be fully cooperating members of society makes persons equal.’23 As long as people have the capacities necessary to be fully cooperating members of society – whether or not they make use of them, let alone good use, – they qualify equally as members and thus ought to be treated as equals. In Political Liberalism Rawls does not elaborate further on this idea but refers to what he wrote in A Theory of Justice on the basis of equality.24 There he argues that, as long as people’s capacities for a conception of the right and the good are beyond a certain minimal threshold they qualify to be ‘moral persons.’ As such they are equally subjects of justice and therefore entitled to equal treatment with reference to primary goods.25 The question is then where this threshold is and why – if treatment depends on having certain capacities – different degrees of capacity should not be taken into consideration once the threshold is passed. Regarding the first question of where the threshold lies, Rawls claims that, in terms of the capacities necessary to qualify for moral personhood, ‘nothing beyond the essential minimum is required’26 and that ‘we cannot go far wrong in supposing that the sufficient condition [for moral personhood and thus for

22 Humboldt (1854): The Sphere and Duties of Government, Chapter 2, 11. 23 Rawls (1996): Political Liberalism, 19. 24 Rawls (1996): Political Liberalism, 19 with reference to Rawls (1999): A Theory of Justice, § 77, 441–449. 25 Rawls (1999): A Theory of Justice, 442. 26 Rawls (1999): A Theory of Justice, 442.

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being considered a subject of justice] is always satisfied.’27 He argues that we generally have to assume the relevant capacities because the consequences of wrongly denying moral personhood to any individual or group would be too grave.28 He does not deny that there are some people who fall short either from birth or after an accident, but he emphasises that these are individual and limited cases which require careful examination.29 The assumption is that everyone is a moral person. To challenge this assumption, it is necessary to conduct a careful investigation and to provide evidence that the individual in question irrevocably lacks the relevant capacities. Regarding the second question concerning the irrelevance of differences in capacities beyond the threshold, Rawls acknowledges that people have different capacities but still maintains that this is no reason to treat them differently in respect to principles of justice: ‘while individuals presumably have varying capacities for a sense of justice, this fact is not a reason for depriving those with a lesser capacity of the full protection of justice.’30 He claims that ‘moral personhood’ has to be understood as a range property: either one qualifies or one does not.31 Degrees do not matter. An example helps to illustrate the idea: if I pass the erg test for rowing, then I qualify as a member of the racing crew for the next race. Whether my times or my technique are better or worse than that of my team-mates does not affect my status as member (even though it clearly influences my status as popular member). The entitlements that team-members have in virtue of being team-members are equal for all members. This does not rule out that there are different positions in the boat nor that there might be privileges for some particular members. All members get the team T-shirt, the basic training, the invitation to the boat club dinner, but not everyone gets to sit at stroke, gets extra coaching, or is asked to give speeches at the dinner. Nonetheless, what really matters for being able to row in the upcoming race is to be on the team and in that sense – in relation to the activity the team is about – all team-members are equals. The question now is whether being a moral person is similar to being a member of a rowing team and whether getting the t-shirt is similar to being considered a subject of justice. Does it make sense to think of moral personhood as a characteristic one has once one exhibits a minimum of the underlying capacities? And why should there be no degrees of moral personhood?

27 28 29 30 31

Rawls (1999): A Theory of Justice, 443. See Rawls (1999): A Theory of Justice, 443. See Rawls (1999): A Theory of Justice, 443. Rawls (1999): A Theory of Justice, 443. See Rawls (1999): A Theory of Justice, 444.

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Critics doubt that Rawls’s conception of moral personhood can be defended as a range property. Ian Carter, for example, holds that Rawls provides no satisfactory reason why moral personhood is a range property. The first problem is that of showing why the range property is morally relevant. The range property is ascribed to individuals in virtue of those capacities on which it supervenes (the putative ‘bases of the basis of equality’), and we know that these capacities vary from one person to another. As a result, we are not yet able to say what is so special about the range property itself, as opposed to its basis.32

One can understand Carter’s critique as suggesting that ‘moral personhood’ is an empty term introduced only to bridge the gap between the empirical fact that people have different capacities and the moral claim that they should be treated as equals nonetheless. The problem would then be with the vague term ‘moral personhood.’ In Political Liberalism Rawls avoids the term ‘moral personhood’ but aims at a political conception of the person. The range property based on the two moral powers of a sense of justice and a conception of the good in Political Liberalism is therefore that of qualifying as a fully cooperating member of society.33 The result of qualifying here is not ‘being equally considered a subject of justice’ but ‘equal citizenship.’ Unlike the link between ‘moral personhood’ and ‘being a subject of justice,’ the link between ‘cooperation in society’ and ‘equal citizenship’ can be explained in a way which shows why having the relevant capacities to the necessary minimal degree is more significant than having those capacities to a higher degree. Whether I am a more or a less successful cooperator depends on how well I interact with others in trying to pursue my own conception of the good whilst respecting their rights. When I am a successful cooperator, I benefit myself because I pursue my goals successfully while avoiding confrontations (and prison). A better cooperation overall is one where more people successfully pursue their own goals while respecting the legitimate interests of others. Overall success therefore depends rather on the number of people exhibiting a certain level of capacities for cooperation rather than on the particularly high level of skill in some individuals. Improving cooperation must aim at the general improvement of the level of capacities relevant for cooperation rather than giving more power to some but not others. This is where Rawls’s distinction between cooperation and coordination is crucial. It is obviously true that coordination can be improved by

32 Carter (2011): Respect and the Basis of Equality, 548. 33 See Rawls (1996): Political Liberalism, 19.

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putting people in charge who have a knack for management. But social cooperation is different: a) it ‘is guided by publicly recognised rules and procedures that those cooperating accept and regard as properly regulating their conduct,’ b) it ‘involves the idea of fair terms of cooperation,’ and c) it ‘requires the idea of each participants advantage, or good.’34 Given that the aim is cooperation and given the particular nature of cooperation, there is no reason why differences in capacities beyond the threshold necessary for cooperation matter. Furthermore, the reason why the capacities for a conception of the good and of the right matter for the property of being a fully cooperating member of society relates to nothing but the understanding of modern democracy which can be seen as inherent in the political culture of modern democracies. There are independent reasons why the capacities for a sense of justice and of the good matter for cooperation in society. There are also independent reasons why the ability to cooperate supports a claim to be included in the cooperation and thus for citizenship. As discussed above, the idea of society as a fair system of cooperation entails the assumption that citizens equipped with the two moral powers engage with each other by accommodating the legitimate interests of their fellow citizens when deciding how to pursue their own conception of the good. This accommodation is mutual. Cooperation is based on reciprocity and the assumption that the others are sources of valid moral claims, too. It is the nature of cooperation – especially of cooperation under fair terms – that those taking part stand in a relation of reciprocity and are equipped with the same rights and duties. Whether one makes good use of one’s rights and abilities or not, does not affect the question whether or not one cooperates but only the one of whether one cooperates successfully. As long as one is not proven incompetent and lacking even the barest capacities of cooperating with other members of society, one is a cooperator just as everyone else, regardless of one’s success in doing so. Qualifying as a citizen therefore is like making the team: differences remain, but all members have equal rights to participate. There are thus legitimate doubts that ‘moral personhood’ and ‘being a subject of justice’ are not equivalent to ‘qualifying as team member’ and ‘getting the T-shirt’ without further elaboration and particularly without reference to controversial conceptions of personhood. However, there are no such doubts when thinking about ‘being a cooperating member of society’ and ‘equal citizenship.’ Having the team T-shirt is one of the prerequisites for taking part in rowing as a team, and having political rights is the most important (but not the only) prerequisite for being a fully cooperating member of a polity.

34 Rawls (1996): Political Liberalism, 16.

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Being a member of a racing crew depends on capacities that differ between different individuals. Not everyone is equally good, but if one is good enough to make the team, then one is a member. Being a full citizen, being able to cooperate in society – in particular in a society based on fair terms of cooperation – requires certain capacities, and as always such capacities vary. However, if I have the necessary capacities to cooperate under such circumstances, I am – at least a potential – cooperator: someone the others ought to take into account. Nonetheless, the question of why differences in capacities should not matter at all is not conclusively solved so far. Passing the erg test assigns me to a race crew. But there are different boats: the best go into the first boat, the others in the second and third boats. Meritocracies are based on the idea that the most competent citizens should get more political power, and those who are less competent should get less. However, it is worth pointing out once more that Rawls is not concerned with trying to convince people who believe in meritocracies to change their minds and become democrats. Rather, Rawls aims to point out the ideas implied by modern notions of democracy to people already more or less convinced that democracy is the right form of government. More importantly, society as a fair system of cooperation is not an enterprise set up to achieve a particular outcome. The analogy with rowing does not fully work: the aim of a race crew is to win the next race. Different capacities matter because of their contribution to the team effort, and if giving privileges or better equipment to stroke improves her performance and thus pushes the performance of the team as such, differential treatment is justified. As Rawls points out, the cases of either being a moral person and thus a subject of justice or qualifying as a potentially fully cooperating member of society and equal citizenship are different. Justice as Fairness as well as the idea of society as a fair system of cooperation are not teleological enterprises, more precisely, they do not aim at maximizing a particular value. Utilitarian theories understanding the state as an institution set up to achieve specific outcomes, like maximising happiness or preference satisfaction, have an incentive to differentiate between citizens according to their capacities. The same is true for perfectionist models, which aim at a particular value, like liberal autonomy. Autonomy enhancing interference with people exhibiting low levels of autonomy could be justified under such a model, even if the same interference was problematic with regard to a person who already has a developed sense of autonomy.35 The aim of society understood as a fair system of cooperation, by contrast, is to enable rather than to

35 See Rawls (1999): A Theory of Justice, 445.

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maximise the benefits of fair cooperation. This aim provides no incentive to distinguish between citizens. To summarise: citizens are to be regarded as equals in view of possessing the capacities of a conception of the right and the good to the minimal degree necessary to be fully cooperating members of society. While citizens exhibit these capacities to different degrees, they are nonetheless to be treated as equals because these faculties matter only in view of the understanding of society as a fair system of cooperation and successful cooperation does not depend on individual capacities but rather on the distribution of sufficient capacities throughout the body of participants. The capacity for being a fully cooperating member of society is thus properly understood as a range property: if one passes the minimal threshold, one qualifies as full member and thus as equal citizen among others.36 The minimal threshold for cooperation is probably higher than the minimal threshold for being considered a moral person and thus a subject of justice, but it is not very high. It presupposes that one has the capacities for a sense of justice and a conception of the good to the necessary minimal degree for meaningful cooperation. Given Rawls’s conception of social cooperation, such minimal capacity implies the ability to acknowledge that: 1. cooperation ought to be guided by publicly recognised rules and to accept these rules as properly regulating one’s own conduct, 2. these rules define fair terms of cooperation which each participant may reasonably accept, provided that everyone else likewise accepts them, and 3. cooperation includes the idea of each participant’s rational advantage or good and that therefore everyone is considered as a source of prima facie legitimate claims. Some people – disabled by birth or accident – lack the mental capacities for the kind of thinking, planning, and reconsidering required to acknowledge and live according to these principles. Other people seem otherwise capable but fail to acknowledge and respect the requirements of fair cooperation. However, given that what is required to be considered a full member of society is the capacity, not the actual performance, we cannot exclude those who do not actually acknowledge these claims. Criminals not abiding by fair terms of cooperation might still – and usually do – understand that what they do is wrong but hope to

36 This is under the artificial assumption of a closed system where people enter only by birth and leave only by death. Immigration obviously brings in a whole set of questions about additional criteria for membership in a political unity.

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get away with it. Those who really lack the capacity for a sense of justice, for example, those who do not understand that there is something wrong with randomly murdering people, we disqualify from full membership in society and treat them as mentally ill. However, as before with reference to ‘moral personhood,’ our assumption is first that people have the minimal capacities but choose to act differently. Only when there has been careful examination and sufficient proof is someone declared incapable.

4.4 Citizens as free and equal as thin political conception Rawls’s conception of citizens as free and equal persons includes a set of substantial moral commitments: 1. Society ought to be regulated by fair terms of cooperation. 2. Citizens ought to be respected as beings equipped with two moral powers: the capacity for a conception of the good and the capacity for a sense of justice. 3. Citizens ought to be regarded as free and equal persons according to the understandings of freedom and equality motivated by respect for the two moral powers. These moral claims are not self-evident. Nor are they supported by all members of modern constitutional democracies. Rawls still argues that the conception of citizens as free and equal persons is freestanding in the sense that it is part of the political culture of modern constitutional democracies. As I argued above, the idea that citizens ought to be considered as free and equal is derived solely from the idea that society ought to be understood as a fair system of cooperation. This idea is itself part of the same overlapping consensus and is more widely shared and compatible with many more diverging comprehensive doctrines. It is therefore a good candidate for a thin conception of the good being concerned with the question of what we have to presuppose when thinking either about goodness or about justice. The discussion above also showed that it is also a good candidate for something that emerges and re-emerges in the process of reflective equilibrium as one of the few things we can feel assured of. While the nature of moral reasoning prohibits arguing that this is a rock solid starting place for moral argument, the fact that these commitments are part of an overlapping consensus in our political culture means that they are a reasonably good starting place for arguments for liberal neutrality. The reference to the political culture or to an overlapping consensus of reasonable comprehensive conceptions supported within this culture is not,

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however, to be understood as a justification of these claims. In so far as the ideal of liberal democracy is part of an overlapping consensus in the political culture of modern constitutional democracies, it is supported by an overlapping consensus of reasonable comprehensive doctrines. It is the common denominator of all conceptions which are committed to the idea that ‘reasonable persons […] desire for its own sake a social world in which they, as free and equal, can cooperate with others on terms all can accept.’37 A defence of political liberalism based on an overlapping consensus would be circular: if only those conceptions committed to basic ideals of liberalism are to be considered reasonable, then it is unsurprising that there is a consensus concerning basic ideals of liberalism among these conceptions. The existence of such a consensus is no reason to consider the liberal principles of justice which are its content as valid.38 However, Rawls does not use the overlapping consensus or the reference to the political culture of modern constitutional democracies as a justification of the claim why political liberalism is true or morally required. The role of the overlapping consensus in Rawls’s structure is rather to show that commitment to a liberal conception of justice is compatible with a variety of different comprehensive doctrines concerning the good. The question Rawls tries to answer is ‘how is it possible that there can be a stable and just society whose free and equal citizens are deeply divided by conflicting and even incommensurable religious, philosophical, and moral doctrines?’39 In raising this question, Rawls presupposes that: 1. citizens ought to be regarded as free and equal, 2. they permanently and fundamentally differ in their conceptions of the good, and 3. it is possible for such a society to work out as sufficiently just and stable nonetheless. The project can thus be understood as starting from the empirical assumption that there is some kind of commitment to the ideal of liberal democracy and spelling out what this vague idea actually involves.40 As shown above, democ-

37 Rawls (1996): Political Liberalism, 50. 38 See, for example, the discussion on the priority of the political in Mulhall/Swift (1996): Liberals and Communitarians, Chapter 7, esp. 241. 39 Rawls (1996): Political Liberalism, 133. 40 The main part of Political Liberalism is taken up with a) spelling out why Justice as Fairness is a good candidate for political conception of justice appropriate to the understanding of society as fair system of cooperation between free and equal citizens equipped with two moral

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racy involves commitment to fair terms of cooperation between citizens understood as free and equal and equipped with two moral powers. It does not, however, involve commitment to any particular comprehensive conception. Rawls’s project does not even involve, commitment to a particular conception of the person. The political understanding of citizens as free and equal and equipped with two moral powers is compatible with the religious understanding of persons as sinners in need of redemption as well as with the humanist understanding of persons as beings called to fulfil their potential by autonomous selfrealisation. Insofar as comprehensive doctrines involving such different understandings of personhood can nonetheless agree to consider citizens – in their political role as citizens – as persons equipped with two moral powers, they are part of an overlapping consensus. Rawls claims that, if one is committed to modern constitutional democracy – whether one bases this commitment on Kantian or Millian liberalism or on a religious belief in equality before God – if one subscribes to the idea of liberal democracy, then this commitment entails the claims that 1. society is to be understood as a fair system of cooperation, 2. citizens are to be understood as persons equipped with two moral powers, and 3. citizens are to be regarded as free and equal. Spelling out the relations between the different claims shows how they all are indeed entailed by a commitment to the ideal of modern constitutional democracy. However, Rawls does not provide any arguments for anyone not already convinced of liberal democracy. Nor is this his aim.41

4.5 The limits of the project Any justification of neutrality based on Rawls’s understanding of citizens as free and equal is limited in the same way. It does not aim to convince those who are fundamentally opposed to modern liberal democracies. It does not aim to convince Osama bin Laden or Kim Jong-Il. The justification of liberal neutrality developed in the following chapters aims to convince those who are sympathetic

powers and b) what it means for such a society to be stable. To be stable for the right reasons, such a society needs an overlapping consensus on fundamental liberal political principles. 41 See Rawls (1996): Political Liberalism, lxii. See also Dreben (2003): On Rawls and Political Liberalism, 328f.

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to the idea of modern constitutional democracies that support for the ideals underlying the understanding of society as a fair system of cooperation and of citizens understood as free and equal entails that: 1. there are matters the state has no right to get involved in, and 2. all citizens deserve to be treated with equal respect and concern despite their different conceptions of what makes life worth living. Thus my arguments for liberal neutrality concern mainly the concerns of liberal perfectionists and liberal multiculturalists. A justification of liberal neutrality based on the idea of citizens understood as free and equal is not freestanding in the sense that it does not presuppose certain liberal commitments. However, it is sufficiently freestanding not to render the idea of liberal neutrality arbitrary or even self-contradictory. It achieves this by being independent of any particular conception of the good life but only presupposing a liberal conception of the right and a thin conception of the good that argues that society ought to be a fair system of cooperation.

5 Justifying the respect element In Chapter 2 I argued that liberal neutrality is best understood as a two-fold concept based on the two competing intuitions that 1. there are matters the state has no business getting involved in (respect element), and 2. the state ought to treat citizens as equals while acknowledging their (cultural) differences (fairness element). In Chapter 4 I argued that Rawls’s conception of society as a fair system of cooperation, with its political conception of the person, is a suitable foundation for justifying liberal neutrality as a two-fold concept: 1. the theory motivates distinctly moral commitments, 2. it is sufficiently freestanding given that it is firmly embedded in the political culture of modern western societies and can be seen as consisting only of thin political conceptions of the good and principles of justice following from such thin conceptions, 3. the concern for citizens as free and equal suggests the double commitment which is at the heart of neutrality as a two-fold concept. The purpose of this chapter is to cash out the first part of this last claim by arguing that my understanding of Rawls’s conception of citizens as free supports the respect element of neutrality. This chapter thus discusses the claim that there are matters, like the truth of a particular religion, where the state must not get involved and must not even hold an opinion. I do not approach this claim by looking at the kind of things the state should not be concerned with. Such arguments exist, and have their own place, but fail to do justice to the idea of liberal neutrality as a two-fold principle of justice rather than as a way to avoid problems stemming from controversy about matters of the good.1 Rather, I will approach the matter by trying to analyse the limits of legitimate state action. The argument proceeds in the following steps:

1 See, for example, Locke (1990 [1689]): A Letter Concerning Toleration which is concerned explicitly with toleration rather than neutrality. The logic of Locke’s argument, however, often reappears in contemporary defences of neutrality.

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1. All state action involves coercion and understanding citizens as free and equal requires that any such coercion is justifiable to the citizens affected. 2. Unlike individual persons the state has no right to do wrong and thus not right to occasionally coerce people for a good reason or cause without sufficient justification. 3. Many liberals justify state coercion – or rather the legitimacy of all state action – with reference to the idea of reasonable agreement: state action is legitimate if and only if it is employed in accordance to principles to which citizens can reasonably be expected to agree on. However, there is much disagreement between liberal perfectionists and neutralists as to what citizens can be expected to reasonably agree on. 4. In my own account, I will therefore base my argument less on the idea of reasonable agreement but rather on the nature of rights and argue (a) that the protection of rights can justify coercion, and (b) that nothing but matters of justice can justify state coercion. 5. Finally, I will show that, to ensure that the state is concerned with nothing but justice, it needs to be justificatorily neutral in the sense of referring only to those matters relevant for establishing and maintaining fair terms of cooperation among citizens understood as free and equal. In describing matters of justice – the realm of political rights – as the legitimate object of state action, I try not to rely on a particular theory of rights. The underlying political thin theory of the good based on Rawls’s conception of society as a fair system of cooperation and citizens as free and equal informs the contents of the relevant rights. However, as to the question of whether the logic of these rights is better understood within the framework of interest or of choice theories of rights, I wish to be agnostic. Rather, I will show that my argument can be made from the background of both theories and thus concerns relatively uncontested features of rights. Where interest and choice theories differ in their explanation of any feature of rights important for my argument I present both accounts.

5.1 Coercive power and the state The first step of the argument argues that all state action involves coercion and that this coercion ought to be justifiable to all citizens.

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5.1.1 All state action involves coercion I understand ‘coercion’ in a general sense as any instance of attempting to influence the behaviour of others by threats backed up with superior power and the ability to make a substantial impact on the coerced person’s life. Coercion is a very difficult term, and I will bracket questions concerning the more nuanced questions of its logic and, in particular, the question of responsibility in view of coercion, since they are not directly relevant for my argument.2 Rather, I will concentrate on two aspects: 1. Coercion aims to (forcefully) impose one’s will on someone else, and 2. it presupposes a power inequality. Even trivial coercion entails a substantive threat. What is trivial is not the threat but the request the coercer demands of the coerced person. The threats involved can be of different natures: the most obvious instances are threats of violence and physical force; the most common threats between individuals are likely to fall under the category of emotional blackmailing and threats to withhold much-needed support. The coercive power of the state is most obvious in its police force and penal system, where violence and imprisonment are threatened. These institutions aim to get us to obey the law whether or not we want to and whether or not we consider the particular law at stake just and legitimate. The power of ‘conviction’ underlying these institutions is not argument but rather the threat that we will be prosecuted and punished should we disobey.3 This is not a bad thing at all: the state fulfils its job of ensuring fair terms of cooperation between citizens by

2 For a more detailed account of different possible understandings of coercion, see Anderson (2006): Coercion. 3 The most distinctive feature of statehood from the point of view of its citizens is its monopoly in legitimate coercive power in this sense. Under normal circumstances the state is considered the only agent justified in trying, sentencing, and locking people up, and it is the only agent justified in using force and even violence to ensure compliance. State officials and subsidiary institutions are justified in using such power only in their capacity as representatives of the state and only when in full accordance with its institutions and regulations. Off duty state officials have no more rights than ordinary citizens and are only allowed to use violence against others in extraordinary circumstances as, for example, in the case of self-defence against an acute attack. There are different arguments to justify this monopoly, but that is a different debate and not relevant for the question at stake. While the monopoly of power suggests that the state is normally the only agent justified in using forceful coercive action, it does not preclude that it might use other means of governance.

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introducing laws that tell citizens what they ought to do, what they are free to do, and what they must not do. These laws need to be enforced for fairness’s sake. They are enforced by diverse means ranging from penalty fees to imprisonment depending on the severity of the breach of law and the resistance of the person committing it. However, even trivial sanctions like parking tickets are instances of coercive power and resistance against them will lead to more severe sanctions. That is, all legislation includes coercion. While legislation is thus linked to coercion, one could think that taxation enables the state to influence its citizens in a less intrusive way. Rather than actively pressuring people to do or not to do something, tax-funded subsidies allow to set incentives or fund publicity campaigns convincing people of better ways to do things. However, people are supposed to financially support the state’s projects with their tax money whether or not they agree to them. Whatever someone’s reasons are for refusing to pay taxes, whether it is conscientious objection to particular state-funded project or stinginess, not paying taxes will be considered a crime and prosecuted accordingly. Thus all tax-funded projects of the state entail at least the threat of coercive power; and since the entire apparatus of the state is financed by taxes, none of its projects is free from coercive action.4 Even if the state does nothing but advertise a particular idea, like eating five vegetables a day, this promotion entails elements of coercion, since all the researching, writing, printing, and distributing of such recommendations is funded by coercively extracted tax money.5 Thus all possible actions of government – the penal system, the direct introduction of regulations, and even financial support for sensible projects like promoting healthy eating – are associated with an element of coercion.

5.1.2 All state action needs to be justifiable to the citizens affected The second claim of the argument is that, in order to be legitimate, state coercion needs to be justifiable to the citizens affected. Gerald Gaus claims that the following principle is well-nigh universally accepted:

4 It is theoretically imaginable that the state could have some property which does not depend on coercive taxation (e.g. from voluntary donations). Projects funded entirely from such funds and not involving any other measures that rely on the penal system for enforcement would not be coercive. However, I disregard such cases, since I consider them extremely unlikely. 5 See also Gaus (2003): Liberal Neutrality 146f.

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(I) (a) It is prima facie morally wrong for Alf to coerce Betty, or to employ force against her. (b) With sufficient justification, the use of coercion or force by Alf against Betty may be morally justified.6

The reason why liberals agree to the principles is that they see citizens as potentially autonomous persons – as moral agents – and such beings ought to be treated with a certain kind of respect. This idea in turn seems to be a moral axiom and responses to the question ‘Why?’ consist largely in providing an account of in how far people are to be considered autonomous and of what it means for autonomous people not to be treated with the right kind of respect. The general rationale is that it would be insulting to treat citizens in a way that does not respect their status as potentially autonomous beings. Classical comprehensive accounts of liberalism see autonomy as the aim of all human action and the essence of humanity. Failing to respect someone’s autonomy thus means not treating him as a fully human being, or in Kantian terms, not as an end in itself. Modern accounts are more careful with regard to identifying humanity with rational self-government in a Kantian sense but still hold that the capacity for autonomy warrants respect.7 While Rawls’s understanding of citizens as free avoids the term autonomy, respecting the two moral powers here means the same. To respect the capacities for the right and the good requires not coercing them without sufficient justification. Liberalism – whether in its perfectionist or its antiperfectionist form – contains a conception of respect for autonomy in this sense.

5.1.3 The state has no right to do wrong In the following I will add a second step to the argument in order to make an even stronger claim. Gaus builds his argument on the basic moral claim that it is wrong to use coercion when one lacks a suitable moral justification. While this claim is true and provides a sufficient justification for the need to justify all state action, I want to additionally show that it is impermissible for the state to use coercion when it lacks such a justification. Gaus is right that it is wrong of Alf to coerce his daughter Betty to attend his aunt Petunia’s birthday party (and endure the unavoidable insults of his obnoxious family) on the threat of cutting Betty’s much-needed allowance unless he has sufficient moral reasons. However, despite

6 Gaus (2003): Liberal Neutrality, 139. 7 Identifying humanity with rational self-government raises problematic questions regarding mentally handicapped persons and children etc. Furthermore, the Kantian ideal comes with a transcendental baggage few people today are willing to accept.

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any moral wrongness of Alf’s actions, he is nonetheless well within his rights to coerce Betty in this way. He is free to support Betty during her college years or not to. I want to argue that the state does not have a right to act wrongly (like Alf does). There are two possible explanations for this claim: 1. The assumption that state coercion is particularly intrusive. 2. The claim that there is something in the relationship between the state and citizens that makes coercion particularly problematic. Neither claim is immediately obvious. Raising taxes ever so slightly to raise funds for a healthy eating information brochure backed up by the threat of legal trouble should I not pay my taxes is less immediately intrusive than the threat to cut Betty’s much-needed allowance should she not attend the party. And while there is something upsetting about being coerced by the state, this seems less upsetting than being coerced by someone whom one knows personally and from whom one expects understanding. The plausibility of the first claim relies on the fact that what the state can do to me – should I keep resisting its demands – is very serious: the penal system not only affects my economic situation but can also throw me into prison. Furthermore, while Betty currently depends on her dad Alf’s financial support and he thus currently has power over her, this situation is temporary and can be changed. While it is possible to escape the state’s power, too, for example by immigrating to another country, the costs of doing so are very high. The power the state possesses over its citizens is thus considerable and its coercive potential serious. Still, this alone does not explain why it is less free to coerce than, for example, Betty’s dad Alf. Especially considering that Alf has threats relating to emotional ties at his disposal that the state lacks. While the considerable power that the state has over its citizens certainly helps the plausibility of the case that the state ought to be particularly stringent in justifying its coercive action to citizens, this is not really what does the work to explain why exactly state coercion is particularly problematic. The key distinction between coercion among individuals and state coercion – I argue – lies in the purpose rather than the nature of statehood. The first question is then what the state is. As discussed in Chapter 4, Rawls builds the moral framework of political liberalism on the assumption that there is an overlapping consensus in western democracies on the idea that society ought to be a fair system of cooperation. The role of the state in this understanding is to ensure that society is indeed a fair system of cooperation. This includes two main tasks:

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1. ensuring the preconditions of cooperation, 2. ensuring that cooperation is fair. Cooperation in its most general sense requires an institutional framework. In order to cooperate, we need to know who has the right to do what, who is free to do what, and which actions are impermissible. Cooperation also needs the assurance that this framework is stable to a certain degree, that people will by large abide by its rules, and that there are institutionalised ways of dealing with non-compliance. This is certainly true of large scale cooperative enterprises like states with their legal and penal systems, but it is even true of small scale cooperation between individuals: for us to cooperate, I need to know that you know what a promise is, I need to believe that you are likely to abide by what you promised, and I might also expect you to know what kind of reaction you can expect should you not. Ensuring the preconditions of cooperation thus involves setting up a framework of rights and duties as well as procedures for dealing with necessary matters of coordination. Ensuring that cooperation is fair involves two different tasks: 1. ensuring compliance with the institutional framework, 2. ensuring that the framework is fair, that it is set up using a fair procedure, and that its regulations distribute the benefits and burdens of cooperation in a fair manner. According to the understanding that society ought to be a fair system of cooperation the state’s job – its raison d’être – is not only establishing coordinating rules and administering compliance with these rules but also to safeguard fairness. This does not exclude – at this stage of the argument – that the state might have other jobs beside establishing and maintaining fair terms of cooperation, but given this job-description acting unfairly towards its citizens undermines its justification.8 That is, Alf coercing Betty to attend aunt Petunia’s birthday party (for no better reason than that he does not want to face the relatives on his own) might be a wrongful act, and Alf might be a slightly worse person for it. However, if it were the state that were unfairly coercing Betty to attend the party, it would not be a slightly worse state but rather would fail in its prime directive by not only failing to protect fairness but rather 8 In Rawls’s words: ‘Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.’ (Rawls (1999): A Theory of Justice, 3).

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violating it.9 Given the understanding of the state as guarantor of fair terms of cooperation, the state cannot have a right to do wrong like individuals often have. This is particularly true in view of the fact that the state is accountable to its citizens and to no one and nothing else. Individuals, by contrast, are not only accountable to other individuals but also to themselves, their conscience, and if they are religious, their god(s). Ultimately – given the commitment to liberal democracy – the state is not even a distinct entity from its citizens, it is a set of institutions that citizens create and control in order to enable cooperation and safeguard fairness. This is to say, any coercion the state engages in ought to be justified by principles that its citizens are able to reasonably accept. The purpose of this section was not to show that there is something particularly problematic about state coercion vis-à-vis coercion committed by another actor. Nor does it show that the state requires more stringent justifications in order to justify its coercive action. Rather, the aim was merely to show that, while individuals occasionally have the right to do wrong in the sense of exercising coercion with not too drastic consequences, the state cannot ever have a right to do wrong.

5.2 Justifying coercion The obvious next question is thus what it takes to justify state action given that it always entails an element of coercion. As just mentioned, one condition is that all state action ought to be reasonably acceptable to all citizens.

5.2.1 Reasonable agreement justifies coercion The most influential such argument is based on Rawls’s theory of Justice as Fairness. The relevant passage in Rawls’s Political Liberalism reads:

9 Obviously, real states continuously fail to be perfectly just. This does not mean that any unjust law provides a justification for revolution, but it means that there is something seriously wrong that needs to be addressed. Unlike an unpleasant character trait of an individual, injustices committed by the state cannot be shrugged off or seen as being compensated for by other good characteristics. Given its purpose to safeguard fairness, the state ought to be continuously engaged in avoiding and redressing injustices.

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Our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.10

This summary raises a series of questions: 1. What is the relevant understanding of citizens as addressees of such justifications? 2. What are the criteria that determine what citizens can be expected to reasonably agree to? 3. What is the scope of the claim: do only constitutional essentials require justification on these terms? Or does the need for reasonable acceptability trickle down to the justification of everyday decisions and ordinary legislation? 4. What is the content of the claims we can expect citizens to reasonably agree on? In the following I will turn to these questions in turn and present the answers usually given in the literature as well as some of the relevant problems with this theory.

5.2.1.1 The addressees of justification As mentioned above, liberals assume that citizens are owed justifications for state action because this is what it means to show appropriate respect to potentially autonomous beings. On first glance the claim that people are autonomous beings could be seen as empirical, but it is usually understood instead as moral: citizens ought to be considered as – at least potentially – autonomous beings. This is because of the connection with the moral claim that it is essential to treat potentially autonomous beings with respect. Because such beings are due a particular kind of treatment, it would be very problematic to err with regard to whether or not someone qualifies as a potentially autonomous person. The assumption is thus that everyone qualifies as autonomous in the relevant sense and that the burden of proof lies with those who question someone’s standing as autonomous moral agent.

10 Rawls (1996): Political Liberalism, 137.

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However, the reference that we could treat all citizens as potentially autonomous beings does not by itself answer the question of what it means to be a potentially autonomous being. When deciding what exactly respect for autonomy requires, we need a clear understanding of such beings. This is where Rawls’s reference to citizens understood as free and equal and equipped with the two moral powers for the right and the good comes in. This means that when we come to develop the criteria any justification has to fulfil, we do not need to seek criteria that actual people would be willing to accept but rather work up from this particular understanding of citizens. Citizens in Rawls’s understanding have fundamental interests with regard to the two moral powers, and this information together with the assumption of general rules of thinking (common human reason) can help to determine what people can be expected to reasonably accept and reject.

5.2.1.2 The scope of the need for justification However, before turning to the criteria for and contents of reasonable agreement, it is helpful to have a closer look to the scope of the need for such agreement. Rawls claims that his conception of legitimacy bans conceptions of the good only from being used as part of the justification for constitutional principles but not from being influential in lower level policy decisions. He suggests that reference to non-political values might be appropriate in less fundamental matters like much tax legislation and many laws regulating property: statutes protecting the environment and controlling pollution; establishing national parks and preserving wilderness areas and animal and plant species; and laying aside funds for museums and the arts.11

But this reasoning is flawed and at odds with the logic of Rawls’s own argument from political legitimacy: there is no good reason why the requirements of public reason should not apply for democratic decisions beyond the sphere of constitutional essentials.12 Rawls seems to think that limiting the requirement of public reason to fundamental matters can be justified, but he does not himself provide this justification. He emphasises instead that the project of Political Liberalism is to show – first of all – that it is at all possible to decide fundamental matters of 11 Rawls (1996): Political Liberalism, 214. 12 For different arguments why public reason should regulate all the political decisions in a liberal democratic society see, for example, Mulhall/Swift (1996): Liberals and Communitarians, 225f. and Quong (2011): Liberalism without Perfection, Chapter 9.

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justice with reference to public reason alone and without reference to comprehensive moral doctrines.13 One of his reasons for thinking that strict requirements concerning neutrality are not necessary in the case of less fundamental matters may be the intuition that banning all reference to matters of the good even in trivial matters often seems too demanding, impossible, or even plain silly. As mentioned in Chapter 2, there seem to be good reasons to occasionally refer to conceptions of the good even if one rejects the idea of state support or discouragement for particular lifestyles. There are political matters which simply cannot be decided in reference to some general principle of justice. The state is not only concerned with fundamental rights and duties, it is also concerned with coordination. There are matters which do not themselves concern rights but need to be decided to achieve the comprehensive and non-ambiguous distribution of rights and duties necessary for cooperation. In such cases there often are several possible solutions. It is, for example, necessary to decide which side of the street to drive on, but there is no justice-based reason for either side. It seems wasteful and even inappropriate to throw a dice (or to resort to any other strictly ‘neutral’ procedure) when admitting arguments from conceptions of the good allows people to explain and defend their interests in these matters. Especially, since such a procedure would make many happy (this is assuming that the decision is made by majority vote) and imposes just an inconvenience (being outvoted in a nonfundamental matter) on others. However, as I will discuss later in Chapter 6, there is a different way in which this intuition can be accounted for apart from restricting neutrality to constitutional essentials: I will argue that all reference to conceptions of the good is inappropriate in the justification of state regulations – when discussing the need for a particular regulation – but is legitimate and even required for reasons of equality when discussing the implementation of these regulations. Unlike the restriction to constitutional essentials, this accommodation of the intuition is not in contradiction with the general logic of Rawls’s argument but rather a necessary addition. Nonetheless, there is one understanding of Rawls’s limitation which still is a helpful qualification of the argument for neutrality via legitimacy. While people can reasonably be expected to agree on some fundamental principles, they cannot reasonably be expected to agree on all the possible conclusions drawn from such principles, especially when there are trade-offs giving different weight to different principles or when there are questions concerning whether a particu-

13 See Rawls (1996): Political Liberalism, 215.

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lar principle is applicable in a given situation.14 This limitation in scope is thus best understood as allowing that not everyone agrees on the specific trade-offs in policy making between principles everyone can reasonably be expected to endorse and that not everyone agrees with every application and interpretation of such principles. The limitation of scope allows that the losers of a particular policy can feel hard done by (if there is an alternative which would better align with their understanding of the situation) while agreeing to the principles underlying the regulation. It is thus a way to explain how liberal legitimacy is possible in the real world.

5.2.1.3 The criteria for reasonable acceptability But what is it that citizens can be expected to reasonably accept in light of their common human reason and their self-understanding as free and equal persons? This is where neutralists and perfectionists differ. Neutralists argue that respect for autonomy means giving citizens as much opportunity as possible to exercise their two moral powers and their capacities for self-government and thus to restrict government action to matters of the right rather than to include matters of the good, too. Perfectionists claim that respecting autonomous people cannot mean letting them act in ways that makes their lives worse. Both liberal perfectionists and neutralists think that there are better and worse ways of living. And both believe that it is disrespectful to assume that someone cannot come to a better or truer understanding of what makes life really worth living. Perfectionists believe that it is therefore necessary to provide a framework which supports people in developing a better understanding by providing and promoting valuable choices and discouraging bad ones. Different strands of perfectionism differ in their evaluation of whether and how much coercion is justified by the aim of ‘encouraging’ people to autonomously choose valuable options. Some, like Sher, find it unproblematic to force citizens to have some experiences in order to enable them to get an inside view and learn to value some particularly valuable life choices on their own merit and to later choose them autonomously.15 Others believe that respecting people as autonomous beings requires letting them make their own choices from the beginning rather than forcibly leading them towards better options but that it is unproblematic to influence people by raising the price of undesirable options

14 Gaus refers to this fact when arguing for a more radical interpretation of neutrality. See Gaus (2003): Liberal Neutrality. 15 See Sher (1996): Beyond Neutrality, 45–71. See also Dworkin (2000): Sovereign Virtue, 269.

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and lowering that of valuable ones. Others again claim that even such apparently non-coercive manipulation is incompatible with respecting people’s autonomy. Respect, they argue, is incompatible with bribing or tricking people into making better choices. People are to learn from their own chosen experiments and possibly – if they are willing to listen – from rational argument. This is where the most liberal of liberal perfectionists finally part ways with neutralists: while perfectionists see it as legitimate and even required that the state uses its resources for research and distribution of information to – at the very least – advise against bad options and promote good ones by rational argument, neutralists claim that it is wrong for the state to take any sort of stand on the question of what makes life worth living. Even if there is good evidence that members of a particular religion generally are more miserable, it is not for the state to urge them to look for a different faith. This description suggests that the difference between liberal perfectionists and neutralists is merely a matter of degree. This hides an important difference relating to reasons why they differ. The argument from legitimacy to neutrality could be spelled out in four premises: 1. Citizens are to be regarded as in some sense autonomous. 2. Autonomy requires respect. 3. Respect for autonomy requires legitimacy, that is, requires that political power ought to be justified in terms citizens can reasonably be expected to accept. 4. Legitimacy requires neutrality, that is, reasonable acceptability requires restriction to matters of the right and excluding matters of the good from the concern of the government. Liberal perfectionists agree with liberal neutralists on the first three but disagree on the fourth. Neutralists have a different conception of what it means to meet the test of reasonable acceptability than perfectionists.16 Perfectionists claim that it is not reasonable to reject being treated as a good and wise man wishes to be treated.17 Most neutralists take disagreement amongst the good and the wise more seriously and therefore argue that it is reasonable to reject any particular good and wise man’s advice. The idea is that there is something like what Rawls calls the burdens of judgement which prevents sufficient

16 See also the discussion in Clayton (2006): Justice and Legitimacy in Upbringing, Chapter 1, Larmore (1990): Political Liberalism, Nagel (1987): Moral Conflict and Political Legitimacy and Nagel (1991): Equality and Partiality, Chapter 14. 17 See Dworkin (1985): Liberalism, 191.

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objectivity for matters of the good life. The burdens of judgement explain why there is reasonable disagreement regarding conceptions of the good. They include reference to the difficulty of evaluating conflicting and complex empirical evidence, the predicament of uncontroversially assigning the appropriate weight to different relevant considerations, the problems of vagueness, the relevance of personal experience, the challenge of an overall assessment of a complex normative situation, and the need make hard choices when it is impossible to do justice to all relevant values at the same time.18 Given that such burdens of judgement are in the way of uncontroversially singling out a particularly superior way of life for each individual, it is not legitimate to expect others to follow any particular way of life. Arthur Ripstein summarises this claim in the following way: ‘matters of taste cannot be enforced because it is insulting to be at the mercy of others’ views about what all agree are matters of opinion.’19 Within the Rawlsian framework, we can assume that citizens who understand each other as free and equal and are aware of the burdens of judgement and the fact of reasonable pluralism would not agree to base the basic structure of their society on any elements of comprehensive religious or ideological doctrines no matter how many wise men agree on them.20 They would see that it is reasonable to object to any such comprehensive conception of the good. Given that neutralists want to exclude those matters affected by the burdens of judgement, the question arises of what neutralists think people can be reasonably expected to agree on.

5.2.1.4 What citizens can be reasonably expected to agree on Rawls suggests that citizens can be expected to reasonably agree on principles which correspond to the understanding of citizens as free and equal. This includes principles spelling out what it means to treat such beings with respect as well as principles securing the preconditions for the relevant understandings of freedom and equality. Rawls uses the construct of the Original Position with its Veil of Ignorance to explain which principles would qualify. While this way to identify principles that all citizens understood as free and equal in Rawls’s sense might work, it is of no help to neutralists who argue that the state ought to be

18 See Rawls (1996): Political Liberalism, 56f. 19 Ripstein (1992): Liberal Justification and the Limits of Neutrality, 4. 20 As said before, Rawls avoids the term neutrality because he believes it is misleading. However, what he calls ‘public reason’ is sufficiently similar to ‘justificatory neutrality’ to see his discussion as one of neutrality in this sense.

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concerned with matters of the right but not with matters of the good.21 The thought experiment aims to identify principles of justice. It does not aim at finding all principles people can be reasonably expected to agree on. In particular, it does not show why principles of justice might be determined despite the burdens of judgement, while this is deemed impossible with regard to conceptions of the good. Given the anthropological assumptions going into the description of Rawls’s Original Position, perfectionists could very well argue that the parties to the Original Position might also agree on some fundamental matters of the good. The general dilemma thus has two horns: 1. Either the burdens of judgement are so substantial that it is impossible to expect citizens to reasonably agree to principles of the good even on the most abstract level. Under such circumstances, neutrality seems justified, but such scepticism would undermine the case that the state legitimately interferes with matters of justice, which are epistemically no more secure than fundamental matters of the good.22 2. Or the burdens of judgement allow to identify some general principles of justice which fulfil the condition that citizens can be expected to reasonably agree on. This allows for the possibility that there also are some fundamental values and principles of the good which fulfil this condition. In these circumstances, the commitment to reasonable acceptability does not lead to neutrality in the sense of excluding all principles of the good but rather only comprehensive conceptions of the good. This is why critics of neutralism argue that neutrality does not follow from Rawls’s theory despite his commitment to public reason. Also given the lack of a better way to identify the relevant principles on which citizens can reasonably be expected to agree on, neutrality generally is seen as not feasible even on theoretical terms.23 This is also why I provide a different justification for liberal neutrality in the next passage.

21 It cannot be the purpose of this book to evaluate all aspects of Rawls’s theory, and I will not engage with the critiques of Rawls’s Original Position and the principles of justice he thinks would be chosen in such circumstances. 22 For a detailed discussion, see Sher (1996): Beyond Neutrality, Chapter 6 and my interpretation in Chapter 3 above. 23 See, for example, Wall (1998): Liberalism, Perfectionism and Restraint.

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5.2.2 Protecting rights justifies coercion In the following I will argue that the protection of rights justifies coercion and thus that the protection of those rights necessary to establish and maintain fair terms of cooperation among citizens understood as free and equal justifies state action. As mentioned in Chapter 3, there are very different theories of what constitutes rights, how they originate, and how conflicts among them should be evaluated and dealt with. In the following I will first present an account of how rights justify coercion based on the logic of interest theories of rights, then one within the framework of choice theories. Finally, I will argue that in both accounts the reason why rights justify coercion is the very same reason as the one given for the existence of rights in the first place. That is to say, whatever is controversial about rights, the fact that they can justify certain forms of coercion is not.

5.2.2.1 Interest theories of rights The first way in which rights may provide a justification of coercion is based on the claim that rights not only constitute an obligation to respect the rights of others (passively or actively depending on the content of the right in question) but – at least in some cases – also provide a legitimate reason defending those rights. The right not to be murdered and the duty to refrain from doing so are accompanied by a right to do what is necessary to protect the victim and prevent the murder. Interest/need theories of rights provide a good explanation for the emergence of the corresponding duties and rights.24 They claim that rights protect interests that are important enough to impose duties on someone else.25 Different theories differ in their evaluation of which interests qualify to receive the protection of a right. There are many open questions concerning the necessary minimal degree of fulfilment and the way of weighing conflicting interests, rights, and duties against each other, but if there are interests fundamental enough to oblige others to act in such a way as to serve the interests, these interests are also in the position to justify a right to what is necessary to protect

24 In Chapter 3 I distinguished between interest theories of rights and need theories of rights to emphasise the distinction between theories explaining what it means to have a right and theories explaining why one has a particular right. In the case of interest and need theories, the reference to fundamental interests explains both the reason for and the form of rights. Therefore I will here use the term interest/need theories to emphasise that both aspects are relevant here. 25 See Raz (1984): Right-based Moralities, 182.

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them. The main question is whether the right to protect the right provides a justification for using coercive power to this purpose. Such a justification depends on the relative strength of the rights involved. The strength of the right to defend depends on the importance and urgency of the interest, but it also depends on other rights and duties that might reinforce or diminish it. There seem to be cases where the correct way of balancing different rights and duties is quite apparent. The right not to be killed is grounded in a very strong and fundamental interest and thus corresponds to strong duties not to kill as well as to a strong right to do what is necessary to prevent murder. The right to prevent murder is – given the interests at stake – greater than the duty not to interfere with someone else’s actions and even the duty not to bodily harm someone else, but it might be less strong than the duty not to kill if that should be the only way to prevent someone from committing murder.26 In other cases the balancing process is even more difficult and complex. Nonetheless, interest/need theories of rights thus can – at least in some cases – justify the use of coercion to protect rights.27

5.2.2.2 Choice theories of rights Choice theories argue differently. They understand rights as a claim relationship between specific persons concerning the use of some physical components. Hillel Steiner, for example, illustrates this logic by describing all rights in terms of property rights.28 A right either prohibits others using certain physical components at a specific time or obliges them to provide such things. It ensures the freedom of the right-holder to use – undisturbed by others – a certain set of external objects necessary for the action he intends to do. From such an account – where rights seem equivalent to contracts as to who is allowed to use what when – the notion that a right triggers another right to protect the first right makes no sense. Nonetheless, choice theories of rights also claim that rights justify coercion. They refer to a Kantian argument claiming that

26 The question of whether it is justifiable to kill someone to save one or more other people cannot be resolved with reference to interest theories of rights alone. Since the identity of the right-bearer is irrelevant (and thus so, too, is the question of guilt and innocence), this theory would suggest a truce between two equally strong rights not to be killed, and the duty not to kill might then outweigh the right to do what is necessary to prevent murder). 27 Interest/need theories not only justify a right to defend rights, but in the case of rights protecting very fundamental interests, even a duty to protect rights. However, for my argument it is sufficient to show that they justify a limited right to use coercion in the protection of rights. 28 See Steiner (1994): An Essay on Rights, 93.

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1. rights assign instances of freedom, 2. rights-violations encroach these freedoms, and 3. the coercion used to prevent or punish these violations is justified by restoring the correct balance of freedoms.29 All these claims relate directly to what choice theorists believe to be the essential features of rights. By assigning control over some external objects rights ensure the freedom to act undisturbed. This freedom is limited because the physical necessities for action are limited and whatever one uses cannot be used by someone else at the same time. Rights ensure a set of limited instances of freedom allowing people to act without constantly fighting over the physical necessities of their actions. A rights-violation is thus taking more than what is one’s due of the external preconditions of action and thus hindering others while gaining a larger freedom of action for oneself. Coercion preventing or punishing such action restores the initial balance of freedoms. How this initial distribution comes about is another highly controversial matter, but if rights are about ensuring a set of jointly possible freedoms, then it seems plausible that coercion is justified in instances where it does not itself encroach on rights but ensures that the freedom of the perpetrator is reduced to its initial state (or in the case of punishment the extra freedom he usurped through his offence is compensated for by an appropriate diminution of his freedom for a limited time).30

5.2.2.3 Common ground While the details are highly contested, looking at these two very different accounts of the relation between rights and coercion suggests that there is some consensus that rights justify coercion in their defence and that this justification is built upon the very idea that rights are founded on themselves, even though this idea differs in the two kinds of theories of rights. Thus, the reason given for the existence of rights is the same as the one given for the justified use of coercion in their defence. It is reasonable to assume therefore that the importance of basic rights can justify the right-bearer, as well as some third party, in

29 For Kant’s argument claiming that freedom may be limited to protect freedom, see Kant (1986 [1797]): Metaphysik der Sitten Erster Teil, 40 (AK231). For Steiner’s interpretation see Steiner (1994): An Essay on Rights, 212f. 30 The argument here relies only on what it means to have a right and does not refer to question of which rights in particular we have and why, it thus only refers to the aspect discussed as choice theories of rights in Chapter 3 above and has no reference to what I called status theories.

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interfering with attempted rights-violations. There are open questions as to who is the appropriate third party and why, but I assume that the state is a good candidate, since it is within my Rawlsian framework the institution created to enable cooperation and to safeguard fairness which includes the protection of rights. The means for protecting rights might range from attempts to reason with the prospective violator to physically preventing him from rights-violations. Under the circumstances of statehood, the means for ensuring the fulfilment of individual duties are ample: the penal system, legislation, taxation, wide spread promotion of ideas, etc.

5.2.3 Protecting rights is the only justification for coercion The previous paragraph shows that protecting rights justifies the use of coercive power in different degrees. For the argument limiting state action to matters of justice (understood as principles assigning rights and duties) to work I need to show that, in the case of the state, it is the only justification possible. To do so I will argue that 1. people have a prima facie right to be left alone from state interference, 2. every justification for state interference needs to outweigh this right, 3. only other rights can outweigh a right.

5.2.3.1 The right to be left alone Within the context of liberalism, both interest/need theories and choice/status theories claim that there are fundamental rights protecting a sphere of freedom within which individuals are entitled to act according to their conception of the good undisturbed. Interest/need theories of rights justify this sphere of individual freedom with reference to a fundamental interest in shaping one’s own life. Tim Scanlon argues that ‘the ability to influence outcomes and protection from interference or control by others’31 must be part of every subjective account of important interests.32 Choice/status theories of rights rely once more on Kantian

31 Scanlon (1984): Rights, Goals, and Fairness, 140. 32 An obvious objection would be that there are many subjective orderings of interests where the highest priority is given to following, for example, a religious authority and no place is given to self-determination. Such bundles of preferences do not include an interest in being free from interference as such; however, they will include the interest in being free from interference by the wrong people and the assumption that one is the best judge as to who the

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accounts and connect rights even more directly with the protection of freedom. The function of rights – according to this conception – is to ensure the most freedom for each individual compatible with the appropriate freedoms of others. Again the liberal versions of both families of rights-theories share the fundamental assumptions mentioned before: 1. (Adult) human beings usually have the capacity for autonomy or self-determination. 2. Exercising this capacity is valuable for them. 3. Treating potentially autonomous beings respectfully requires respecting their capacity for self-determination. In the case of choice/status theories, the link between these assumptions and the right to a sphere of personal liberty is direct. People have a (possibly limited) right to decide their fate undisturbed because they are individuals with ends of their own and it is thus fitting to treat them as such.33 In the case of interest/ need theories, the link is indirect: because they are individuals with ends of their own, people have fundamental interests in, and thus rights to, the preconditions of shaping their lives according to their own ends. In either case a liberal anthropology describing human beings as beings capable of shaping their own lives provides a reason to assume a prima facie right to exercise this capacity. However, the right to a sphere of liberty necessary for self-determination is not usually understood as a right to be left alone. Perfectionists assume that this right is best understood as bundles of rights to a set of particular freedoms (like freedom of religion, freedom of consciousness, freedom of speech etc.) combined with legitimate state interference in terms of providing valuable choices and supporting conductive conditions for choosing the best ways of exercising one’s right to self-determination. Even many neutralists allow limits to the right to selfdetermination that are less stringent than the rights of others. Peter de Marneffe claims that neutrality is compatible with the promotion of non-neutral values infringing non-basic liberties.34 Rawls claims that there is no general presumption in favour of freedom.35

right people are. The overall claim is that everyone has a strong interest in some kind of liberty (even if they are not willing to extend this liberty to others who are too blinded to voluntarily subject themselves to the right authority). 33 See, for example, Quinn (1993): Morality and Action, 170. 34 See De Marneffe (1990): Liberalism, Liberty, and Neutrality, 261. 35 See Rawls (1996): Political Liberalism, 292.

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In the following I will present an argument for a right to be left alone from state interference based on the understanding that the social bases of selfrespect are primary goods. The argument has three steps: 1. Self-respect is of such importance for the idea of society understood as a fair system of cooperation among citizens understood as free and equal that its social bases should be understood as primary goods. 2. Among the social bases of self-respect is the requirement that the state treats citizens understood as free and equal respectfully, that is, the requirement not to doubt their two moral powers. 3. Any state-action which aims at helping citizens to improve their conception of the good life or their pursuit of the good life cannot avoid being disrespectful since the instruments of legislation and taxation are unsuitable means of giving friendly advice. My argument relies on Rawlsian theory but draws conclusions from this theory which are more demanding than what Rawls himself argues. Regarding the first step, I am still firmly within the sphere of Rawlsian theory. Rawls claims that self-respect is of fundamental importance for individuals, since ‘without it nothing may seem worth doing, or if some things have value for us, we lack the will to strive for them.’36 Self-respect is seen as a precondition for the flourishing of any life independent of what conception of the good one is following. This general claim seems convincing to me, but for my argument it is sufficient to rely on a narrower political version and to argue that self-respect is a precondition for regarding oneself (and each other) as free and equal citizens. As argued in Chapter 4, commitment to the idea of liberal democracy entails confidence in the idea that all competent citizens (including myself) are capable of developing and pursuing their individual life-plans while respecting that fair terms of cooperation require some restrictions here. The self-respect necessary for the understanding of citizens as free and equal has therefore at least two distinct dimensions: 1. a sense that I and my interests matter, 2. a certain confidence in my abilities to take charge and responsibility for my life, that is, a certain confidence in my two moral powers.37

36 Rawls (1999): A Theory of Justice, 386. 37 For Rawls’s account of these two dimensions see Rawls (1999): A Theory of Justice, 386.

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Linking self-respect to confidence regarding particular capacities is not unproblematic, especially since people always do possess capacities to different degrees.38 It is important here to notice the distinction between self-esteem and self-respect. Self-respect relates to accepting oneself as a person with certain capacities and rights, whereas self-esteem concerns appreciation of specific abilities. Self-esteem corresponds to what Stephen Darwall calls appraisal respect: it is a matter of degree and depends on the extent to which a valuable capacity is fulfilled.39 Self-respect, by contrast, relates to what Darwall calls recognition respect and is not a matter of degree: citizens are owed respect as free beings whether or not they exercise their freedom in a particularly good way – unless they fall under a minimum, like children and mentally disabled persons. Possessing the two moral powers and being able to cooperate as a full member of society is seen once more as a range property.40 Being disrespectful in the sense of threatening self-respect is thus much more serious than undermining selfesteem. Convincing someone that she should not be in charge of her own life (because she is, for example, uneducated and weak-minded) is much more problematic than convincing someone that she is not quite as good a singer as she thought and might want to look into a different career. In the context of the political culture of a free democratic society, it should also be much harder to do. Self-respect is usually seen as neither fully dependent on external feedback nor fully independent. The reactions of others often have substantial impact on whether a person can develop a secure sense of her own worth and her capacities for the right and the good. The self-respect of citizens as free and equal members of society understood as a fair system of cooperation in particular depends on how they are treated by this very system. Self-respect thus has social bases. Given the fundamental importance of self-respect, Rawls claims that the social bases of self-respect are primary goods.41 Protecting self-respect by protecting its social bases is seen as of fundamental importance and as a consideration which has to be taken seriously in every discussion of particular rights and duties. Rawls does not discuss what it takes to develop and protect self-respect in great detail. Rather, he discusses how his theory of Justice as Fairness supports the self-respect of citizens understood as free and equal.42 The features he lists

38 For a critique of Rawls’s discussion of self-respect see, for example, Eyal (2005): SelfRespect and Rawls’s Principles of Justice. 39 See Darwall (1977): Two Kinds of Respect. 40 See Chapter 4. 41 See TJ, 54, 91, 155, 348, and 380. 42 See, for example, TJ, 155f. and Rawls (1996): Political Liberalism, 318.

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here help us to develop a positive account of what it means to protect selfrespect. Rawls claims that self-respect is supported by being recognised as full and equal members of society, it is supported by the existence of basic rights and liberties, by the fair value of political liberties and by fair equality of opportunity. Self-respect is thus supported by a fair opportunity to realise and exercise one’s moral powers.43 When looking for a positive list of the social bases of self-respect, there are thus several obvious candidates: 1. One social base of self-respect is a sphere of individual liberty to exercise one’s capacity for the good. 2. One social base of self-respect are the political liberties necessary to exercise one’s capacity for the right in determining the fair terms of cooperation for one’s society. 3. One further social base of self-respect is not being treated disrespectfully by our fellow citizens and our shared social and political institutions. While the first two requirements are compatible with perfectionist accounts, my claim is that the third leads to a right to be left alone by the state in questions not necessary for ensuring fair terms of cooperation. The general idea is that treating citizens respectfully requires respecting their two moral powers and thus their life choices. This means that the state must not cast any doubts on citizens’ rights to make their own choices for their own lives. Nor must it cast doubt regarding the capacities to develop, pursue, and revise a conception of the good.44 Generally, to respect a capacity is not to interfere with its exercise. It does not necessarily stretch to a claim that one ought to support or enable the exercise, but it clearly involves not throwing obstacles in its way. Respecting the capacity for developing, pursuing, and revising an individual conception of the good thus means to grant citizens a right to be free from undue interference in their life choices. Not all interference is undue. Ensuring fair-terms of cooperation requires some interference, especially where the rights of others are at stake. Furthermore, not all forms of interference are equally harmful to self-respect. Forcibly coercing people to live a certain way for their own good seems deeply disrespectful, since is, raises questions regarding the validity of their concep-

43 See Rawls (1996): Political Liberalism, 81f., 106, 203 and 318ff. 44 Undoubtedly there are citizens who do not possess the two moral powers to the necessary degree to be fully cooperating members of society. In these cases the state must treat them differently. It is just as wrong to treat infants as if they were fully mature adults as it is to treat mature adults as if they were infants. My point here is that differences beyond the threshold do not matter and must not be part of the political agenda.

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tions of good and right as well as their capacity for responsible agency. Manipulation or trickery also raise serious doubts but constructive criticism might rather help to improve confidence in the worth of one’s endeavours as well as in one’s ability to pursue them in a suitable way. The difference is thus at least in part in the way the advice or criticism is voiced. A friend does not do me wrong if he offers friendly advice as to my food choices, but he does me wrong if he tricks me into tasting something that for whatever stupid reason I explicitly refused to taste. The thrust of my version of the neutralist claim is once more that the state is different from individuals. First, according to the argument above, it would not only be wrong but impermissible for the state to trick me into doing something that I explicitly refused to do since the state has no right to do wrong. Furthermore, the state is, in virtue of being the state, incapable of giving friendly advice. State involvement in the promotion of particular conceptions of the good is disrespectful because it makes a big deal of the ways in which it considers its citizens’ life-choices worth improving. It cannot avoid making a big deal of it given the kind of institution that it is: its actions whether they are in terms of legislation or in terms of subsidies always include the threat of coercion. Using or threatening coercion is making a big deal. But once one makes a big deal of the ways in which lives could and should be lead in a different way, one casts serious doubts either on the person’s ability or on her right to live the way she chooses. Paternalist action referring to trivial matters might from this perspective be considered even more troubling than paternalist action referring to more fundamental matters: it suggests that the state does not even trust its citizens with small every day choices. The requirement that the state respects its citizens’ capacities for the right and the good is thus best understood as a prima facie right of citizens to be left alone from state interference. This right is often overruled when it comes in conflict with requirements of fair terms of cooperation, but it should nonetheless be considered as a right. It is a variation of the more fundamental right to be treated respectfully – a variation that applies in dealings with the state. From the point of view of interest/need theories of rights, this right can be justified with reference to the fundamental interest in the social bases of self-respect and therefore of being treated respectfully. From the point of view of choice/status theories, the right to be treated respectfully and its extension the right to be left alone from undue state interference follows from the very reason for rights: the requirement to treat potentially autonomous beings as they ought to be treated: respectfully. This first step for my argument for neutrality is the crucial one. One could argue that a prima facie right to be left alone by the state is all there is to neutrality. My argument, however, is different, and for defending my particular

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understanding of neutrality, it is necessary to have a closer look as to which considerations can outweigh the right to be left alone.

5.2.3.2 Reasons for state action have to outweigh the right to be left alone As shown above, the state has to justify its actions. It needs to show that the considerations for acting in any particular way outweigh the reasons for not acting in this way. In the case of political disagreements concerning matters of the right, different rights and duties have to be weighed against each other. In the case of political disagreements concerning matters of the good, considerations of value face the prima facie right to be left alone from state interference in questions regarding the good life. The missing piece in the argument restricting the state to matters of justice is the claim that rights trump all considerations which are not themselves concerned with rights, and that therefore rights are the only considerations that can outweigh the prima facie presumption against coercion.45 At first sight this seems to be obvious: the purpose of rights is to protect an area of individual freedom by setting constraints on what other people can do in their pursuit of whatever aims they may have. Thus, granting rights means nothing but ensuring priority of some entitlements over other considerations. Trumping other considerations simply is what rights do. However, the plausibility of this claim is challenged by cases where the protection of a rather trivial right entails huge disadvantages for the community in general. Does the property right of one art-hating landowner really trump the wish of a community of art-lovers to build a fantastic art museum at the only suitable location? Does it still trump the interest of the art loving community when the decision to build is democratically made and appropriate compensation for the loss of the property is both possible and offered? One way to defuse the example is to deny that the art-hater has a right to act in this way. This is not to deny property rights as such but only to deny full property rights and to argue that there is no right to refuse giving up one’s land when a democratic process leads to the decision to build something beneficial there as long as appropriate compensation is available and offered. Interest theorists could argue that, while there is a fundamental right to some private

45 The phrase ‘rights as trumps’ stems from Ronald Dworkin’s essay with the same title. See Dworkin (1984): Rights as Trumps. Dworkin does not argue that rights prima facie trump all other considerations but rather that they serve as trumps ‘over some background justification for political decisions that states a goal for the community as a whole.’ (Dworkin (1984): Rights as Trumps, 153).

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property ensuring the physical necessities of action, there are no full property rights in all circumstances. The fundamental interests at the foundation of property rights are satisfied if the agent can rely on commanding some external necessities for agency undisturbed by others. Expropriation seems therefore unproblematic as long as there is 1. due procedure to avoid any instability and arbitrariness that prevents long term planning, 2. due compensation, as well as 3. fair warning to give the agent time to adjust his plans relying on this particular object.46 When assessing a conflict between a right and a value (or even another right), the first necessity is thus to see whether there really is a right at stake, and what it consists in precisely. To decide whether a right is at stake, it is necessary to look at the justification of that particular right. The first distinction here is between rights stemming from contracts and basic moral rights (including the right to obligate oneself in a valid contract and expect others to respect their duties stemming from valid contracts). If the right in question is a right stemming from a contract, it is necessary to evaluate if it was a valid contract and what clauses and background assumptions it entails. Property rights stem from contracts47 and thus rely on some background assumptions on what qualifies as a valid contract and what limitations on ownership the particular kind of object entails.48 Such background conditions might include a clause that one has to accept appropriate compensation and give up property if this is necessary for the production of some communal benefit. However, this discussion of background conditions leads away from the question at stake. It rather raises the question which of legal background assumptions the state can legitimately enforce and if it may rely on a clause on

46 These conditions seemto apply also when objects are expropriated in pursuit of protecting some right (rather than the preferences of the majority) and are only reduced when the protection requires very urgent action. 47 I will not discuss the issue of natural property rights here, since it is irrelevant for the question at stake for the debate on neturality does not take place in any state of nature but under the conditions of statehood which always include some regime of property rights. 48 It is important to note that I am not talking about legal (property) rights but moral rights. I assume that buying some property gives the owner not only a legal right (which can be limited and even nullified by other legislation) but also a moral right to use this property undisturbed by others within certain parameters (the moral property right to a gun does not entail the right to use this gun to shoot other people).

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private property rights allowing (compensated) expropriation in cases where the majority wants an art museum on this particular property. Rights stemming from contracts will always be limited by all kinds of background conditions; to see whether rights trump other considerations, it is therefore better to focus on basic rights. Basic rights set constraints on how human beings can legitimately be treated given their status as free and equal citizens equipped with the two moral powers. Respecting the capacity for the right and the good is seen as incompatible with certain behaviours, and rights express these constraints on how people may be treated. Violating such a right thus equals treating a person in a way no person should ever be treated. The question is thus whether the requirements for treating people appropriately with regard to their status as beings equipped with the two moral powers are binding in all circumstances (or rather only limited when they should conflict with other rights) or whether other considerations like some intrinsic values or the common good can outweigh them. Nozick argues that they cannot be outweighed because infringing someone’s rights to benefit others is to use him at a means for the benefit of others and thus does not take seriously that he is an individual with his own aims and purposes.49 Nozick’s argument emphasises that rights concern moral conditions of fair relationships between people. Where there is a right, it represents a relation of claims between two or more people, which exemplifies the way people ought to treat each other in order to live together peacefully and respectfully as beings with the capacity to develop and rationally pursue ultimate ends. Values – be it intrinsic values or some social good – follow a different logic: the logic of aims, which focuses solely on questions of what means are appropriate and effective to achieve the aim in question. When violating a right in favour of some ultimate aim, the relation expressed in the right is destroyed to the disadvantage of one person, while the benefit is on the side of the other person(s) and thus cannot compensate for the sacrifice.50 Furthermore, disregarding someone’s right for the benefit of others undermines the understanding of citizens as free and equal. In the absence of relevant limitations in the appropriate understanding of property rights, the state treats the art-hater impermissibly disrespectfully if it claims that the value of establishing an art-museum is greater than his entitlement to refuse selling his land. Overruling his plans of life implies that he is considered as someone whose

49 See Nozick (1974): Anarchy, State, and Utopia, 32f. 50 Theoretically the person whose right is violated might benefit, too, but if that person thinks that the action at stake will benefit her, she can relinquish her right and release the others from their duty towards her. If she does not, then she must feel that the action does not benefit her sufficiently to warrant giving up the protection of this right.

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moral powers are not sufficiently developed. As long as his plans are compatible with fair terms of cooperation, casting such doubts is impermissible for the state. While we neighbours are free to call the art-hater a selfish jerk, the state as guarantor of fair terms of cooperation among citizens understood as free and equal is not. Thus when rights come up against other rights or duties, there is room for political decision making, room for arguing why one right is more important, more relevant, and more in need of protection than another. When rights – or just the one right to be free from state interference in matters of the good – come up against other considerations, like religious convictions, the beauty of art, or the value of music, these considerations are trumped by the right, and there is no room for political decision making. These considerations are inappropriate in the context of state action because all kinds of state action involve coercion and need a right-based justification.

5.3 The respect element of neutrality My argument in this chapter has shown that justifications for state action have to outweigh the right to be left alone from state interference regarding matters of the good and that only considerations which themselves have the status of rights are in a position to do so. So far I have said little which rights are the one’s which inform state action. Following from my Rawlsian framework, the focus is on those rights which are necessary to ensure fair terms of cooperation. As I will show in more detail in Chapter 7, this includes the classic lists of basic individual rights as well as rights and duties necessary to ensure the preconditions of cooperation as well as the preconditions for cooperation being fair. The commitments to fair terms of cooperation among citizens understood as free and equal also provide justifications for some public goods but not for others. The respect element of neutrality is thus best understood as the need to justify state regulations of any kind with reference to those rights necessary to protect fair terms of cooperation.

6 Justifying the fairness element In Chapter 2 I argued that neutrality is best understood as a two-fold concept referring to two distinct intuitions: 1. there are matters the state has no business getting involved in (respect element), and 2. the state ought to treat citizens as equals while acknowledging their (cultural) differences (fairness element). In Chapter 5 I developed an argument for the respect element of neutrality arguing that the only way to justify state action to citizens is with reference to those matters of justice relevant for establishing and maintaining fair terms of cooperation. The purpose of this chapter is to develop an argument for the fairness element based on the conception of citizens as equals. The fairness element includes two aspects: 1. All citizens ought to have equal participation rights and should be equally encouraged and able to participate in political decision making if they so choose. 2. In order to treat citizens as equal the state ought to take their differences seriously: while debate concerning the justification of state regulations must not refer to conceptions of the good, debate on the implementation of state regulations has to allow and encourage reference to all relevant interests.

6.1. Treating people as equals Before discussing Rawls’s conception of treating citizens as equals and drawing conclusions for the understanding of neutrality from this model, it is necessary to mention two preliminary concerns about treating people as equals: 1. Equality always refers to a particular dimension or characteristic. Treating citizens as equals full stop does not make sense. 2. Treating citizens as equals is only appropriate when citizens are in some sense – relating to the dimension in which they are treated as equals – equal. These claims are uncontroversial, and a quick example should illustrate their point. It seems obvious that I treat a group of children as equals if I assign each

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of them the same task (building a LEGO spaceship), equip each of them with the same resources (the necessary LEGO pieces and the building instructions), and promise each of them the same kind of reward (a piece of cake) if they finish the task within the timeframe that I set for everyone (5 minutes). By treating them equally in this way I do not treat them as equals full stop but as equal competitors in a LEGO-competition. However, should my group include children who have only one hand, those children have a clear disadvantage and a distinctly lower chance of winning a piece of cake. This seems unfair. What is unfair in this scenario is that I neglect relevant differences. The onehanded children do not have the same chance to do well as the two-handed children. I thus treat people as equals who are not equals, or rather, not equals in the relevant sense. In order for a competition in building LEGO spaceships to be fair, it does not matter if all participants have the same hair-colour or A-level subjects. The only differences that matter are those that affect the ability to fulfil the task: intelligence in understanding the instructions and skilfulness in putting the pieces together. It is unfair to match 2 year olds against 17 year olds, just as it is unfair to match people with one hand against people with two. On the other hand, it seems perfectly fair to match redheads against brunettes and biologists against chemists in the building of LEGO spaceships. What the example shows is that treating people equally is not always fair and might be unfair if people differ in relevant respects. The example suggests that differences are relevant only if they relate directly to the task at hand, and only if they are too great. Discovering some differences in intelligence and skilfulness between the participants is probably the very reason for having a competition in building LEGO spaceships in the first place. Small differences do not affect the fairness of the competition. It is only when the differences in ability are too great that the competition turns into a farce. In order to treat the competitors in the LEGO-competition appropriately equal, it is necessary to level the playing field. To treat the children in the example as equals, I could split the group into two: matching the one-handed children against each other and have a separate competition for the two-handed ones. Alternatively I could run a single competition but ask all children to use only one hand. Or – if what I want to test is the understanding of and ability to follow building instructions rather than the skill of putting the pieces together – I could provide help or extra time to compensate for the disadvantage of having only one hand when matching the one-handed children against the two-handed ones. In order for equal treatment to be appropriate, people ought to be equal in some relevant sense. The required starting point equality is not full equality in skills etc., but rather an equal standing reflecting the idea that everyone has

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more or less equal opportunities to benefit from equal treatment. This, in turn, explains why it does not make much sense to treat people as equals full stop. People are not equal full stop. There always are some differences, and for each possible way of treating them as equals, some of these differences matter with regard to the question of whether equal treatment is fair. The fairness element of neutrality refers to treating citizens as equals. It concerns treating them as equals with regard to dimensions relevant to citizenship. In the following I will rely on Rawls’s argument that citizens are to be treated as equals in view of possessing the two moral powers for the right and the good to the necessary minimal degree to be fully cooperating members of society. I will argue that treating citizens as equals requires treating them appropriately equally with regard to their capacities for the right and the good.

6.2 Rawls’s conception of citizens as equal As discussed in detail in Chapter 4, Rawls claims that citizens are to be regarded as equals when they possess the two moral powers for the right and the good to the necessary minimal degree to be fully cooperating members of society. Rawls defines the capacity for the right as ‘the capacity to understand, to apply, and to act from the public conception of justice which characterises the fair terms of social cooperation.’1 This is the capacity that enables people to see the interests of others as prima facie valid claims, which need to be balanced against one’s own interests according to a public conception of justice. The capacity for the right enables citizens to understand principles of justice and to motivate themselves to (by large) abide by them. Rawls defines the capacity for the good as ‘the capacity to form, to revise, and rationally pursue a conception of one’s rational advantage or good.’2 People’s conception of the good might well be under-theorised and not fully rational. Dworkin famously refers to the beer-drinking, telly-watching person who is fond of saying ‘This is the life.’3 Nevertheless, having the capacity for a conception of the good enables people to lead their own lives as they see fit. They are able to make choices about their own lives, to aim to realise these choices (obviously with varying degrees of success), and to see these choices as their own choices, that is, to take responsibility for them, despite the fact that there always is some influence and pressure from others and from circumstances.

1 Rawls (1996): Political Liberalism, 19. 2 Rawls (1996): Political Liberalism, 19. 3 Dworkin (1986): A Matter of Principle, 191.

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Rawls arrives at this political conception of the person by starting from the question of what capacities citizens need for the project of society understood as a fair system of cooperation to work. As argued in Chapter 4, to realise fair cooperation people must 1. have an idea of what they want, and 2. be willing to accept the interests of others as prima facie valid claims, too, and thus be motivated to abide by regulations that establish an overall fair system for coordinating and accommodating different interests. Rawls acknowledges that different people command these capacities in varying degrees but he claims that 1. differences above a certain minimal threshold are irrelevant, and 2. this threshold requires nothing but the capacity to be a fully cooperating member of society. Individual differences in the capacity to cooperate beyond that threshold do not matter because they affect neither fairness nor cooperation as such. Rather, such differences influence the probability of being successful in pursuing one’s own goals while avoiding conflicts with others. Both the fairness of cooperation and the fact of cooperation depend rather on the interplay of different actors than on the specific capacities of particular actors. The treatment appropriate for possible cooperators thus does not depend on particular degrees of capacity provided the minimal threshold is passed. The minimal threshold ought to be low because what matters is having the capacity to the necessary degree not displaying it. It is easy to think of many instances where people act unfairly, but most of them will acknowledge that their behaviour is unfair, or can at least understand why others reprimand them. We hold responsible only those who we think as capable of understanding the wrongness of their wrong acts. We do not use penal justice to deal with psychopaths, who do not understand what is wrong with randomly murdering people. We consider them mentally ill and lock them away in medical facilities rather than ordinary jails. Given the problem that people often act unfairly despite better knowledge, we treat people as responsible and thus possessing the necessary capacities for cooperating on fair terms until there is solid evidence that their transgressions are due to incapacity rather than weakness of will. As a result, the threshold for being considered as possessing the capacities of the right and the good to the necessary minimal degree to be fully cooperating members of society understood as a fair system of cooperation is very low, even

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though – as I will argue – the moral standards for treating citizens as equals in this respect are nonetheless demanding.

6.3 Treating citizens as equals with regard to their two moral powers So far I have argued that, in order to treat citizens as equals, we need to 1. pay due regard to the fact they are to be treated as equals in virtue of being citizens, and 2. consider them as equal in dimensions relevant to their citizenship. I argued furthermore that Rawls provides a good account of the sense in which we should consider citizens as equals: they are equals in view of possessing the two moral powers to the necessary minimal degree to be fully cooperating members of society. Treating citizens as equals requires treating them as equal with regard to the foundation of their equality, that is, with regard to their two moral powers. So what does it mean to treat citizens as equal in view of their two moral powers? This entails two questions: 1. What does it mean to treat citizens equipped with the two moral powers appropriately? 2. What does it mean to treat them as equals in the relevant sense? In answer to the first question, I suggest that treating citizens appropriately in view of their two moral powers means to respect these powers and therefore to be concerned about the conditions necessary for their development and exercise. In response to the second question, I claim that treating citizens as equals therefore requires being equally concerned with the development and exercise of these capacities in each citizen. In the following, I will first discuss what it means to respect the two moral powers and then discuss what is required to ensure appropriately equal conditions for development and exercise of these powers for all citizens. For the question of what it means to respect the two moral powers, that is, to secure adequate conditions for their development and use, I will once more rely on Rawls’s theory. However, it is important to note that I use his conception of citizens as equipped with the two moral powers in a different way than he himself does. Rawls’s project is to develop and justify a theory of justice. In A Theory of Justice, he develops a philosophical defence for his conception of Justice as

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Fairness. In Political Liberalism he presents Justice as Fairness as a political conception of justice and provides a defence that only refers to ideas inherent in the political culture of modern democracies, that is, a defence that takes seriously the fact of reasonable pluralism. In this context he refers to the political conception of the person as free and equal and equipped with the two moral powers of the right and the good. The understanding of citizens as equipped with the two moral powers informs the set-up of the Original Position as well as the thinking of the parties in the Original Position.4 Rawls refers to his conception of citizens as free and equal primarily when laying out the foundation of the most basic concerns of justice, i.e., the basic structure of society. Rawls does not believe that the reference to the conception of citizens as free and equal persons is irrelevant at more applied stages of political thinking, but he does not directly refer to it in these later stages. Since it informs the most fundamental principles, which in turn inform the regulations on all other levels, the conception of citizens as equipped with the two moral powers indirectly motivates all political decisions. However, I find it occasionally more helpful to refer directly to the idea of citizens as possessing the two moral powers to the necessary minimal degree to be fully cooperating members of society. My project here is different: I want to develop an idea of what it means to treat citizens as free and equal and justify a particular conception of neutrality based on this understanding. My project is thus narrower because it is only concerned with what it means to treat citizens as free and equal in the contexts relevant for neutrality. At the same time, my reference to citizens as free and equal is broader because I appeal to this idea not only with reference to fundamental principles of justice but also with reference to decisions in everyday policy making. I depart from the top-down four-stage sequence that Rawls discusses in A Theory of Justice and ask how political institutions ought to look like if they are to result in ways of policy-making that take seriously the ideas of citizens as equals.5

6.4 Respecting the two moral powers equally As mentioned before, Rawls does not directly discuss what it means to respect the capacity for the right, let alone, what it means to respect it equally. However, in discussing how reference to the conception of citizens as beings equipped with

4 Rawls (1996): Political Liberalism, 304–310. 5 For the introduction of the four-stage sequence and the practice of challenging higher stages with reference to counter-intuitive outcomes on lower stages, see Rawls (1999): A Theory of Justice, § 31.

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the two moral powers leads the parties in the Original Position to choose his two principles of justice, his particular list of primary goods and basic liberties, as well as the particular ordering of the principles, Rawls gives some indication of what it means to respect these capacities.6 He argues that – given the alternatives of perfectionism and utilitarianism – Justice as Fairness is best suited to provide the basic structure necessary to ensure the development and exercise of the two moral powers. Given the particular context of his discussion of how concern for their development and exercise influence the choice of principles of justice in Lecture VIII of Political Liberalism, we can assume that there are three features of the principles of justice which he considers particular relevant in view of the two moral powers: 1. the list of basic liberties (freedom of thought and liberty of conscience, the political liberties and freedom of association, freedoms specified by the liberty and integrity of the person, and the rights and liberties covered by the rule of law), 2. the priority of these liberties over other liberties as well as over concerns for the general good or perfectionist ideals, and 3. ensuring that the political liberties are not just formal but have fair value. Rawls does not discuss how these principles ensure and support the development and fully informed exercise of the two moral powers in detail. In the following I will show that these features are indeed particularly relevant for respecting the two moral powers.

6.4.1 Respecting the capacity for the right Rawls defines the capacity for the right as ‘the capacity to understand, to apply, and to act from the public conception of justice which characterises the fair terms of social cooperation.’7 Whilst Rawls does not explain in detail how the three features mentioned above protect the capacity for the right, it is easy to see that developing the capacity for understanding what justice demands requires freedom of thought and liberty of conscience. And it is equally clear that the capacity to apply and act from a conception of justice requires political liberties, protections of people’s agency and integrity as well as the rule of law.

6 Rawls (1996): Political Liberalism, 310–324. 7 Rawls (1996): Political Liberalism, 19.

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The political liberties are of particular importance. The capacity for a sense of justice is the capacity that allows citizens to understand, apply, and act from Rawls’s conception of Justice as Fairness. This very capacity also enables citizens to understand different conceptions of justice, to evaluate them, and to choose between them, when faced with different choices within democratic procedures. When understood like this, respecting this capacity sets some requirements for political communities. Given that people are considered to be able to see what justice requires, they ought to be involved in choosing the rules regulating their society. Given also that people are to be considered as equals when they possess the capacity to the minimal necessary degree to be fully cooperating members of society, they ought to participate as equals. Or put differently, given that we assume that all citizens have the capacity to understand what justice requires to the minimal necessary degree to be considered equals in a cooperative scheme, we have no reason to give the voices of some more importance than those of others when deciding the rules of society. The only legitimate way of choosing rules regulating society is therefore a way that gives everyone an equal vote in public decision-making. Unsurprisingly, this capacity of citizens, which was distilled from the very foundations of democracy, provides a reason for democracy.8 Rawls does not directly discuss why the priority of the basic liberties is necessary to protect the exercise of the sense for justice. However, it is easy to see that this priority protects the most fundamental sphere of liberty necessary to understand, apply, and act from what justice requires. Rawls argues for the fundamental importance of this sphere in terms of self-respect. Self-respect is rooted in our self-confidence as a fully cooperating member of society capable of pursuing a worthwhile conception of the good over a complete life. Thus selfrespect presupposes the development and exercise of both moral powers and therefore an effective sense of justice.9

He implies that curtailing the basic liberties in favour of other concerns undermines self-respect. Given the importance of self-respect for agency in Rawls’s thinking,10 the relation between self-respect and the sense of justice goes both ways: citizens have self-respect as beings capable of full membership in society in view of possessing the capacity for the right and the good; citizens need selfrespect in order to be motivated to develop and exercise these capacities. The

8 See also Christiano (2004): The Authority of Democracy. 9 Rawls (1996): Political Liberalism, 318. 10 See Chapter 5 above for my interpretation and Rawls (1999): A Theory of Justice, § 67 and § 82 as well as Rawls (1996): Political Liberalism, 318–320.

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priority the basic liberties enjoy in Rawls’s conception can thus be seen as a necessary condition for the development and exercise of the two moral powers. Furthermore, given the contents of the public conception of justice to which the sense of justice is referring, curtailing these basic liberties in favour of less fundamental concerns would undermine the sense of justice itself. An argument showing why respecting the sense of justice requires that the political liberties are not just formal but have fair value can also be developed from Rawls’s discussion of self-respect in the context of the second moral power. Once more, however, he does not spell out a direct argument for what it means to respect the capacity for the right. His purpose is rather to show how the sense for justice would motivate the parties to the Original Position even if, given the set-up of the Original Position, they only refer to rational considerations for the good of those they represent. Nonetheless, his discussion provides the ingredients for a direct argument. Rawls claims that his first principle includes the guarantee that the political liberties, and only these liberties, are secured by what I have called their ‘fair value.’ To explain: this guarantee means that the worth of the political liberties to all citizens, whatever their social or economic position, must be approximately equal, or at least sufficiently equal, in the sense that everyone has a fair opportunity to hold public office and to influence the outcome of political decisions.11

And he implies that it is partly in view of this guarantee that Justice as Fairness is the best way to ensure the preconditions for developing and exercising the two moral powers. Why is this? As discussed above, guaranteeing the political liberties is particularly important for respecting the sense of justice. The capacity to understand what justice requires enables citizens to evaluate different political options. Respecting this capacity requires giving the room to exercise it, that is, to be involved in political decision making. And given that we assume all citizens to possess this capacity to the minimal degree necessary to be fully cooperating members of society, they ought to be able to participate on an equal standing. This equal standing can easily be undermined by socio-economic circumstances: the rich have more resources available for influencing political outcomes through election campaigns or lobbying. Respecting this capacity thus requires ensuring that such inequalities are counteracted and the equal standing is protected. Furthermore, given that the self-respect of citizens depends on understanding oneself as being equally entitled to be fully cooperating members of society,

11 Rawls (1996): Political Liberalism, 327.

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circumstances that undermine this equal standing undermine self-respect. And given the importance of self-respect for agency, ensuring an equal standing in matters of political decision-making is necessary for applying and acting from a sense of justice, that is, for respecting the capacity for the right.

6.4.2 Respecting the capacity for the good Rawls defines the capacity for the good as ‘the capacity to form, to revise, and rationally to pursue a conception of one’s rational advantage or good.’12 Many of the arguments that respecting the capacity for the right requires (a) protecting a particular list of basic liberties, (b) securing the priority of the liberties over other considerations, and (c) ensuring that political liberties have fair value similarly apply in the case of the capacity for the good. The basic liberties are necessary to be able to gather information and experience and to compare and decide among different conceptions both in the case of conceptions of the right and of conceptions of the good. Giving these liberties priority over other concerns to ensure a sphere for the most fundamental exercise of the capacity is linked to self-respect, not only in the case of the right, but also in the case of the good. Self-respect is linked to understanding oneself as a being capable of developing a meaningful conception of a good life and pursuing it to one’s best ability. The link is particularly strong with regard to liberal conceptions of the good: if I conceive myself as an autonomous being, then my self-respect is challenged by regulations limiting my autonomy in arbitrary ways. However, even if my conception of the good is to adopt my parents religious lifestyle unquestioningly, my selfrespect is limited if my freedom to adopt this way of life is arbitrarily limited. This is, whether or not one values liberty and choice as such, self-respect is vulnerable to challenges to the resulting choices in form of limitations of basic liberties. Securing the preconditions for political participation as equals is also required for respecting the capacity for good, just as it is for respecting the capacity for the right. Unequal political standing is another potential challenge for self-respect. As discussed above, it threatens self-respect, first of all, with regard to the capacities necessary for full membership in society. Furthermore, for liberal lifestyles valuing autonomy and self-determination, unequal political participation rights pose a serious challenge because this inequality implies deficits in the capacities necessary for citizenship, self-government, and autono-

12 Rawls (1996): Political Liberalism, 19.

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my. But even for non-liberal lifestyles, the realization that others (who one might regard as undeserving) have more power and can impose restrictions on what one conceives as the right way to live is detrimental to self-respect. Being at the mercy of others denies not only the fundamental value of my conception of the good but my right to try to shape my political surroundings in a way compatible with or even supportive of my ideals. Therefore Rawls’s claims regarding respect for the capacity for the right also apply to respect for the capacity for the good. Respecting this capacity to develop, pursue, and revise one’s personal idea on how to live requires ensuring fair conditions for developing and exercising this moral power. However, one could wonder if the requirements for respecting the capacity might be more demanding than the minimal requirements, which Rawls sets out to govern the basic structure of society. Respecting this capacity could, for example, mean ensuring that there are sufficient valuable options to choose from, that people learn the relevant skills for making good choices etc. Nonetheless, it means, first of all, ensuring that there are as few obstacles as possible in the way of developing and pursing a particular conception of the good. Without diminishing the importance of the basic liberties discussed above, this provides a general presumption in favour of liberty. Clearly limits are needed. Two different kinds of limits are necessary to ensure that one person’s freedom does not encroach on another person’s. These are: 1. the aims of both persons, and the way they pursue them must respect the requirements of justice, and 2. the ways in which different persons pursue their individual conceptions of the good life have to be coordinated. In the abstract these conditions are uncontroversial. It is obvious that my freedom to live my life the way I wish ends as soon as your rights are at stake. The pursuit of conceptions of the good is limited to permissible conceptions of the good life. And it is equally obvious that people pursuing different conceptions of the good will get into each other’s way even if they do not actually deny or encroach on each other’s rights. It is necessary, for example, to coordinate which public spaces are to be used for different forms of recreation: allowing rowing and swimming in the same stretch of river at the same time is a pretty bad idea. How we coordinate the pursuit of different conceptions of the good is a different question and a lot more controversial than the need for coordination itself. For now it suffices to say that there are legitimate restrictions of liberty which ensure that different people can exercise their liberties in a meaningful way.

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Perfectionists argue for more restrictions on conceptions of the good. They claim that society should not only set up regulations protecting the rights of others and ensuring coordination but also regulations that prevent people from choosing bad ways of life. In their view the state has a responsibility for furthering the well-being of its citizens and should take appropriate measures to ensure that people choose objectively better rather than objectively worse conceptions of life. I do not doubt that there are objectively better and worse conceptions of life or at least life-choices that are very likely to make every life worse or better. A serious drug addiction is very likely to make one’s life worse overall. Achieving a good work-life balance, eating healthily, joining a club of like-minded people etc., are means likely to make most lives better. However, I doubt that paternalistic considerations can be squared with respecting everyone’s capacity for the good equally. Respecting the capacity for the good requires respecting the freedom to make use of this capacity where this is compatible with the constraints set by the rights of others. This means, first of all, refraining from setting up arbitrary hindrances to the exercise of this capacity. This includes room for experiment as well as the room to make errors and learn from them. Any restrictions on freedom have to be justified as strictly necessary. Restrictions based on considerations of justice, or based on the need to coordinate life in society, are necessary. They can be justified with reference to respect for the capacity itself: in order to be able to live life the way I see fit, I need regulations which protect me against the interference of others. In Chapter 5 I argued that only considerations of justice (relating directly to people’s rights or indirectly requiring the coordination of people’s rights and duties) are necessary in the relevant sense. When arguing for the introduction of a law, the government may only refer to considerations of justice. It may not refer to conceptions of what makes life good or better because, while they might be right (at least in limited cases), citizens do not have the right – neither individually nor collectively – to determine what someone else may or may not do unless the rights of others are at stake. Respecting people’s capacity for the good thus provides a reason for justificatory neutrality.

6.5 Formal versus fair political participation If respecting the capacity for the good means giving citizens the greatest possible room to exercise this capacity, justificatory neutrality is not sufficient. In many cases neutrally justified regulations can be implemented in different ways: the rationale justifying the need for the regulation can be realised in different ways. There are, for example, neutral reasons relating to the necessity

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of coordinating how a particular stretch of river is to be used by rowers and swimmers. But there are many possible ways of achieving the aim of avoiding accidents: banning either swimmers or rowers completely from this stretch, having different times for rowing and swimming, splitting the river up into sections for rowing and sections for swimming, etc. These different implementations affect different conceptions of the good in different ways and accommodate the needs of some better than the needs of others. In many cases there are no rights-based criteria to decide among different options. Obviously, regulations which infringe basic liberties are ruled out unless it is a case where two basic liberties need to be coordinated. However, most regulations do not concern the basic liberties which take strict priority over all other concerns. In such cases a pure theory of justificatory neutrality would have nothing to say as to how to decide between different implementations.13 Political practice usually leaves it to the responsible government agency to pick a solution it considers appropriate without much explanation as to what makes a solution appropriate. This seems unsatisfactory in view of the danger that majority views are likely to be the default setting, whereas minority interests are not even discussed.14 One might therefore think that neutrality is better understood as an attempt to prevent the state from actually disadvantaging or favouring different conceptions of the good. However, as I argued in Chapter 1, attempts to define neutrality in terms of even-handed outcomes have seriously counter-intuitive consequences. Neutrality of impact results in the protection of an arbitrary status quo. Neutrality as equality of opportunity undermines the idea of a marketplace of ideas which is constitutive for liberalism. Many liberals therefore argue that the only defensible form of neutrality is justificatory neutrality combined with democratic decision making. I claim that this is unsatisfactory. There is a danger that proceeding like

13 Justificatory neutrality has nothing to say in cases where different basic liberties clash either. However, I am here concerned with clashes of conceptions of the good which do not involve basic liberties. It might be the case that the rules for balancing non-fundamental principles are similar to those for balancing primary goods, but I suspect that this is not the case and that balancing basic liberties and primary goods requires more reference to an overall theory of justice. In the following, I shall show that the balancing of non-basic liberties is a matter for particular democratic procedures. 14 See also Anna Elisabetta Galeotti’s critique that neutrality is infeasible since it ‘assumes a hypothetical situation of pluralism where not only all asymmetries are on principle ignored, for the sake of the normative quality of the argument leading to just principles, but where, especially, the distinction between „normality“ and „differences“ is necessarily lost.’ (Galeotti (1998): Neutrality and Recognition, 40.) Since this assumption does not apply in the real world, neutrality almost necessarily leads to disadvantages for minority opinions.

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that disadvantages minorities. Obviously, every regulation will be inconvenient for someone. As long as no fundamental interests are at stake, this might just be one of the annoyances of life, which are irritating, but ultimately, morally irrelevant. Furthermore, there are good reasons – based on idea of citizens as equals – for inconveniencing fewer rather than more people. If everyone counts as one, then it is fair that the majority gets its way provided the basic rights and interests of minorities are protected. Under some circumstances, however, inconveniences can be accumulated and become morally significant. This is the case when 1. inconveniences are avoidable, and 2. the citizens who are inconvenienced by the particular implementation of a neutrally justified regulation did not have a fair chance to present their case and argue for a different implementation. The moral significance of these instances can be explained with reference to the conception of citizens as free and equal and equipped with the two moral powers. A state clearly does not respect its citizens’ capacity for the good when it limits their freedom to live their life according to their conception of the good for no good reason. Inconveniences limit freedom even if they do not infringe on basic rights or liberties. It would, for example, be disrespectful to people’s interest in recreational water sports if the neutrally-justified need for a regulation coordinating rowing and swimming in a particular river, was implemented in a way that simply banned both activities from the river since it is easy to imagine solutions that are at least better for one party and not even difficult to find solutions which accommodate both interests. It also makes a moral difference whether the local authority reached the decision haphazardly or whether it reached this decision after consulting with both interest groups and failing to reach a mutually acceptable compromise. Both limitations which lack a sufficient justification and limitations that are introduced without following proper democratic procedures are unjust. What makes this a concern in the context of neutrality is the fact that it is often not a lack of regard for freedom or procedural justice as such which leads to these particular problems but rather insufficient awareness of and attention to relevant differences among citizens. As argued above, Rawls implies that ensuring conditions necessary for the development and exercise of the two moral powers requires not only political participation rights but also ensuring fair value for political liberties. It is not enough to ensure formal democracy but also necessary to safeguard that

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the worth of the political liberties to all citizens, whatever their social or economic position, must be approximately equal, or at least sufficiently equal, in the sense that everyone has a fair opportunity to hold public office and to influence the outcome of political decisions.15

In the following I will argue that socio-economic conditions are not the only factors that can threaten the fair value of political liberties but that what I call ‘cultural differences’ can make morally relevant differences, too.

6.5.1 Cultural differences The term ‘culture’ is notoriously vague. By ‘cultural differences’ I mean something similarly vague: cultural differences are differences that result from people’s different ways of life. Some of these differences we share with members of a particular cultural group. Others are due to our individual interpretation of our cultural context. Some of these differences relate to cultural matters in a more traditional sense (like language, religion, traditions, and manners). Others relate to lifestyle choices (hip-hop culture). Multiculturalists tend to consider the first set much more important than the second set. I will not follow this distinction but rather assume that all cultural differences can make a difference to people’s standing in society and thus matter in terms of treating them as equals. Talking about a capacity for developing, pursuing, and revising a conception of the good seems to imply that all aspects of our life are chosen. This is clearly not the case. Our way of life is largely determined by the choices we are facing given where, when, and under what circumstances we are born, grow up, and live. Even the way how we see, evaluate, and decide among choices is to a large part determined by how we were taught to see and evaluate the world around us. It furthermore matters how we were taught to evaluate our own right and capacity to choose. It makes a difference whether we were encouraged or discouraged from choosing for ourselves. Nevertheless, despite the fact that there are many preconditions for our choices which are out of our reach, we make choices, and we can come to alter the very way we perceive and evaluate the world. What I call cultural differences thus is the result of processes that can be seen neither as completely within nor completely outside our control. Furthermore, cultural differences are not completely individualistic. Our choices are shaped by our particular background. Nor are cultural differences completely

15 Rawls (1996): Political Liberalism, 327.

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communal. Our choices are not fully determined by our background; people from the same background have different interpretations of particular values and their relative worth even if they share similar values in general. In the following I will firstly argue that cultural differences can undermine the fair value of political liberty just as socio-economic differences can. Then I will show that, because cultural differences are relevantly different, they cannot be treated in the same way as socio-economic differences. Multiculturalists, post-colonialists, feminists, and other proponents of minority rights have been arguing for a long time that mainstream liberalism neglects the importance of cultural differences in the political sphere.16 It is important to distinguish two different kinds of multiculturalist claims:17 1. claims that mainstream liberalism neglects the fact that cultural differences can undermine the fair value of political liberty; that is, that some cultural minorities are disadvantaged by our political institutions in a way that undermines their equal standing as citizens, and 2. claims that mainstream liberalism ignores that there are cultural rights, that is, rights to the accommodation of at least some cultural interests. I am concerned only with the first claim. If some cultural concerns deserve the protection of rights, the argument for their acknowledgement and accommodation does not conflict with justificatory neutrality. Justificatory neutrality allows the reference to rights and only prohibits relying on conceptions of the good. Here I am only concerned with the claim that cultural differences might threaten the fair value of political liberty, just as much as socio-economic differences can. An example should illustrate the claim. It seems clear that politicians speaking a minority language face a clear disadvantage in election campaigns: unless

16 See, for example, Benhabib (1996): Democracy and Difference, Galeotti (1998): Neutrality and Recognition, Gutmann (ed.) (1994): Multiculturalism, Kelly (2002): Multiculturalism Reconsidered, Moller Okin (1989): Justice, Gender, and the Family, Parekh (2000): Rethinking Multiculturalism, Walzer (2007): Thinking Politically, Walzer (1997): On Toleration, and Young (1990): Justice and the Politics of Difference. 17 I will use the term “multiculturalist” as shorthand for multiculturalist, feminist, postcolonial, and minority right concerns. While there are relevant differences in the particular arguments of these schools and they have different foci, they all share the basic claim I am interested in: socio-economic differences are not the only ones which challenge equal citizenship, cultural differences matter, too.

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they invest in either language training or translators, they have less of a chance to convince large portions of the electorate of their ideas. Even with these supports, they still might be limited in terms of the rhetorical skills so influential in democratic campaigning. This disadvantage seems comparable to the disadvantage faced by a poor politician competing against rivals with much larger funds for campaigning. This shows that at least some cultural differences make a difference to whether citizens have a roughly equal chance to influence political outcomes. However, the argument multiculturalists (and feminists) make is more subtle than claiming that cultural differences as such undermine equality (though, as the example above suggests, there are some cultural peculiarities which directly challenge equal political participation). Rather, multiculturalists argue that, because political institutions cannot be culturally neutral, the equal standing of minorities is threatened. Cultural differences make a difference not (merely) because they might interfere with political participation as such but because they make it harder for some to participate in the culturally shaped institutions set up by others. It is thus not impossible for cultural minorities to participate as equals, but under some circumstances participation on equal terms requires them to change (at least in part) who they are. The minority language politician in my example can participate as an equal with equal opportunities in election campaigns only if he gives up on using his own language in his political activities. Ensuring the necessary fluency might even require that he predominantly uses the majority language in all his communications.18 Multiculturalists claim that requiring assimilation in order to participate as an equal does not treat people as equals, because it takes at least some elements of the majority’s way of life as a standard that other people have to meet. No one can feel well and at ease with him or herself, have self-esteem and self-respect if he or she is socially accepted despite being a woman, a black, an Arab, a gay, that is by denying significant components or elements of such an identity.19

18 Note that my example refers to rather innocent practical disadvantages and avoids the issue of discrimination and bias against minorities. This is to show that cultural difference could undermine the fair value of equal political rights even in ideal circumstances. However, usually circumstances are not ideal, and the biggest threat to the fair value of formally equal political rights is prejudice. As Anna Elisabetta Galeotti shows, one of the biggest problems with traditional understandings of neutrality is that it is unable to address this problem of denied inclusion in the democratic polity. See Galeotti (1998): Neutrality and Recognition. 19 Galeotti (1998): Neutrality and Recognition, 46.

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The language case is helpful for showing that cultural differences can make a real difference to political participation, but it is not helpful for explaining why this is morally troubling rather than simply unfortunate. If democracy requires communication so that we all understand each other, then we need a shared language. Given the existence of multiple languages, some will have to use a language other than their mother tongue to participate. It is clear, furthermore, that it makes sense to use a majority language for common usage so that fewer people have to learn a new tongue. There are other examples that can make the point that it is not cultural difference as such that threatens equal political liberty but rather cultural difference in view of an uncritically accepted cultural standard: In her critique of deliberative democracy, Iris Marion Young argues that political discourses are shaped by particularly white, bourgeois, and male ways of thinking, thus making it harder for women and minorities to participate as equals. Deliberative theorists tend to assume that bracketing political and economic power is sufficient to make speakers equal. This assumption fails to notice that the social power that can prevent people from being equal speakers derives not only from economic dependence or political domination but also from an internalized sense of the right one has to speak or not to speak, and from the devaluation of some people’s style of speech and the elevation of others.20

What she calls feminine ways of thinking and arguing (story telling), for example, are not recognised as valid alternatives or additions to male ways of thinking (competitive arguments). In order to be taken seriously as equally competent and legitimate political actors, women therefore need to resort to male ways of thinking and arguing. I am sceptical whether these really are characteristically male and female ways of thinking. However, there are culturally different ways of thinking, and societies tend to consider some as appropriate and others as less so. In this evaluation they do not always consider that unusual styles of thinking are not necessarily inferior. This bias has the result that some people are more encouraged than other to speak up, some are taken more seriously than others, and some claims will not get the attention their substantive content deserves. Young’s argument focuses on the mode of argumentation and suggests an alternative account of communicative democracy.21 However, I believe her claim that cultural differences can undermine equal political participation can

20 Young (1996): Communication and the Other, 122. 21 See Young (1996): Communication and the Other and also Young (2002): Difference as a Resource for Democratic Communication.

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be understood more broadly. Not only the mode of political discussion, but all ways of political participation and the particular shape of political (and social) institutions are culturally shaped. Veit Bader discusses a point particularly important for the discussion of neutrality. He claims that cultural differences undermine the plausibility of justificatory neutrality. In his view mainstream liberalism is flawed mainly because 1. it favours secular lifestyles over religious ones, and 2. seemingly neutral institutions/reasons hide the fact that public culture is predominantly shaped by the majority culture, whilst the commitment to justificatory neutrality prevents minority cultures from even voicing their concerns.22 For Bader the two points are closely related. He claims that it is the commitment to a particular understanding of liberalism, including the emphasis on justificatory neutrality, which disadvantages religious minorities. He claims that liberalism and justificatory neutrality are often understood as a commitment to secularism and thus as anti-religious. Liberal political institutions are necessarily culturally shaped, but given that the reference to religion is deemed inappropriate in the public sphere, those whose religiously motivated lifestyles are – perhaps unknowingly and unintentionally inconvenienced – lack the opportunity to express their needs: A constitutionally and legally equal treatment of religions does not prevent and quite often masks administrative, political, and cultural inequalities between majority religions and minority ones […]. Combined with the predominant individualist bias of liberal politics and the concomitant liberal and republican distrust toward group representation and institutional political pluralism, this amounts to an unintended entrenchment and legitimation of these inequalities or at least to a deafening silence when it comes to the question of how to practically redress the balance in favor of minority religions.23

The question of religious holidays provides an example here. In many European countries, public holidays conform to Christian holidays. Christians are thus able to observe their religious holidays and attend the relevant church services if they choose to do so without the need to take the day off work and thus without diminishing their holiday entitlements. Followers of other religions, by contrast, even if they are happy to sacrifice their leave days, often have no legal right and

22 Bader (1999): Religious Pluralism, 608. 23 Bader (1999): Religious Pluralism, 600.

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no guarantee that they will be able to observe their religious holidays should the timing be inconvenient for their employer. Public debate on this issue focuses mainly on the question if the right to freedom of religion could be used to argue for exemptions or special provisions to allow religious people to fulfil the duties of their faith. However, this is only one possible approach to the question, and one might argue that the equal standing of citizens would be better served if the question of which days should be general holidays was reopened for discussion. Given the changes in society caused by immigration and pluralism more generally, fewer people might be affected if some minor Christian holidays would be cancelled and replaced to accommodate major Muslim and Hindu holidays.24 The main advantage would be a more even-handed distribution of public recognition for different religions.

6.5.2 The implementation of neutrally justified rules From the discussion above, it should be clear that: 1. Justificatory neutrality leaves leeway for different ways to realise neutrally justified aims. 2. The implementation of neutrally justified regulations is usually at the discretion of government agencies. 3. Government agencies are likely dominated by representatives of the majority culture for two reasons: a. the (unproblematic) reason that a democratic electorate probably wishes to be represented by people relevantly similar to themselves and that there simply will be more people voting for representatives of majority views, and b. the (more problematic) reason that at least some cultural differences can threaten participation as equals, posing extra burdens on minority members trying to stand as state officials. 4. Different implementations of neutrally justified regulations affect different conceptions of the good in different ways, imposing heavier burdens on some than on others.

24 The question which holidays could be replaced is an empirical one and depends on how many traditionally Christian holidays are actually institutionalised. The Bavarian calendar, for example, counts nine Christian holidays but no Muslim ones, even though there is a significant Muslim minority.

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5. Given that government agencies are likely to be dominated by representatives of majority cultures, regulations are likely to favour majority over minority lifestyles. 6. Such outcomes might be unfortunate in any case (for those on the losing side) but are morally relevant in cases where a. inconveniences are avoidable, and b. those inconvenienced did not get a fair chance to argue for a less inconvenient implementation. 7. Given the likely composition of government agencies, such morally troubling inconveniences cannot be precluded because: a. Members of the majority culture might simply be unaware of how the implementation affects a lesser known minority culture even in cases where there are alternative models that would be less inconvenient, and b. given the commitment to justificatory neutrality and given that it is not possible to argue about inconveniences without reference to the conceptions of the good which makes a particular implementation inconvenient, members of the minority view do not get a fair chance to argue for a less inconvenient implementation. So – given that cultural differences can threaten the equal standing of citizens – what does it take to ensure democratic equality in terms of cultural differences? In the example of the LEGO-competition at the beginning of the chapter, I claimed that treating people as equals in view of particular tasks requires levelling the field in view of disadvantages relating to the task at hand. A fair competition between one-handed and two-handed children might require separate competitions for the two groups, or asking all children to only use one hand, or providing extra help for the disabled children. While these kinds of suggestions might sound familiar in view of multiculturalist claims to minority selfgovernment and even secession, exemptions, and minority rights, there are several problems in seeing the inequalities resulting from cultural differences as analogous to the inequalities in the LEGO-competition case. These are: 1. Cultural differences are unlike disabilities. They are at least partly chosen. While disabilities are something that happens to someone and is usually seen as a source of regret, cultural differences are the consequence of a person’s capacity to develop, pursue, and revise a conception of the good. Occasionally, people have little choice to develop within the context of their culture. However, what prevents their changing is usually the societal context which enforces cultural commitments, not the fact that all their cultural

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traits are embedded too deeply in their personality to allow reconsidering at least some of one’s cultural interests.25 2. Cultural differences usually do not by themselves undermine the equal standing in democratic political participation but only in the context of culturally biased institutions. Nevertheless, some levelling of the field seems to be the appropriate response to the fact that cultural differences threaten the equal standing of citizens with regard to political liberties. In their discussions of particular cases of cultural differences, both Young and Bader suggest that the key to any solution in this context is, firstly, to acknowledge the fact that political institutions are culturally shaped and therefore unfairly advantage some views and disadvantage others. Young argues for ‘communicative democracy,’ which emphasises that all social knowledge is culturally situated, invites the discussion of multiple cultural perspectives, and augments critical argument with different communicative means like greeting, rhetoric, and storytelling.26 Bader argues for ‘relational neutrality.’ He writes: Relational neutrality replaced the idea of difference-blindness by difference-sensitivity. Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will, in the long run, become more neutral in relation to these religions and to nonreligious people as well.27

The main point of these proposals is that ensuring the fair value of political liberties requires that debate both on the shape and on the contents of political institutions and regulations ought to be as open as possible allowing all points of view to be expressed and all voices to be heard. However, I believe that the fact that cultural differences threaten the equal standing of citizens does not undermine my initial argument for justificatory neutrality as defended in Chapter 5. While Bader’s argument is explicitly directed against justificatory neutrality

25 This is not to say that all disabilities are necessarily a source of regret. Representatives of disabled people often claim that it is the set-up of society just as much as any medical condition that actually disables people: why should there be stairs rather than ramps? Nonetheless, while there is some – occasionally little – room to choose one’s culture, there often is no such choice with regard to the question of whether one is affected by a medial condition usually referred to as disability. 26 Young (1996): Communication and the Other, 126–133. See also Young (2002): Difference as a Resource for Democratic Communication. 27 Bader (1999): Religious Pluralism, 608.

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understood as a commitment to secular rather than religious reason, he does allow for the importance of claims of justice: The important thing […] should not be whether arguments are religious or secular but whether arguments, attitudes, and practices are compatible with the principles, rights, culture, virtues, and good practices of social, democratic constitutionalism.28

Furthermore, the discussion above referred only to the stage of implementation not to the stage of justification of state regulations. I claim that treating citizens as equals requires the commitment that only considerations of justice (whether directly concerned with rights or indirectly with necessary coordination ensuring a fair distribution of rights and duties) may inform the justification of political institutions. In the implementation of those regulations, however, the fairness element of neutrality requires taking considerations of the good into account. These considerations are not taken into account in the sense that we are looking for an objectively best solution and are comparing different ideals of the good accordingly. Rather, these considerations are taken as expressions of the different interests citizens have as a result of exercising their capacity to develop, pursue, and revise conceptions of the good. This means that there is no theoretical answer to any dispute about implementations because respecting the capacity for the good of all citizens equally prevents directly comparing different conceptions of the good according to any standard of reasoning (be it coherence, depth, rationality, and/or reasonableness). Instead the choice between different implementations ought to be procedural, that is, democratic. However, the discussion above suggests that democratic procedures ought to fulfil particular requirements: 1. there has to be room for discussion concerning the implementation of neutrally justified rules, 2. this discussion has to allow reference to conceptions of the good in expressing the interests which are at stake with regard to different possible implementations, and 3. the discussion has to allow and encourage different modes of expressing these interests and concerns (taking Young’s point on board). Leaving the choice between different implementations to democracy, and thus majority rule, does not prevent the danger that minority views are more and

28 Bader (1999): Religious Pluralism, 603.

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more often disadvantaged than majority views. However, these procedural specifications should prevent situations in which 1. implementations are chosen which unnecessarily burden minority members because the majority is unaware of the affected minority concerns, and 2 minorities do not have a fair chance to argue for implementations that are more favourable to their interests. It might be helpful to return to the example of public holidays to flesh out what this proposal entails. I claimed that opening up the discussion on which days should be public holidays was one way to reduce the disadvantages that Muslims and Hindus face in societies historically shaped by Christianity. The discussion above provides some reasons to consider this way, in some sense, superior to the alternative approach of arguing for exemptions based on freedom of religion. These are as follows: 1. It is more accommodating than arguments from freedom of religion, since it does not require an argument that the particular interest at stake is strictly necessary for a meaningful exercise of the religion. 2. It is better able to deal with non-religious interests. In contrast to Bader’s claim that liberalism often disadvantages religious vis-à-vis secular lifestyles, there are some circumstances where religious interests get more attention than secular ones. Arguments from freedom of religion presuppose that the interest a believer has to conform to the requirements of his chosen way of life is more important than the interest of someone for whom football plays an essential role in life. Opening up the discussion on which public holidays there should be allows for football fans to propose that the day of the World Cup Final (or the day after) should be a national holiday. 3. While arguments from freedom of religion presumably refer to the importance of the holiday with regard to religious doctrines, the proposal for opening up discussion would allow people to explain their interest in any particular holiday in the way they consider most relevant and convincing. They could, for example, invoke story-telling to express the meaning this day has for their religious community in the particular circumstances of this time and place. They could also suggest that what this holiday stands for is a concern that other people with other religious and non-religious views might also find worth commemorating. The case for opening up discussion concerning public holidays does not aim to replace arguments from freedom of religion. When there is a case that the mean-

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ingful exercise of a particular religion requires the strict observance of some particular holidays, this provides reasons to allow members of this religion to take the relevant day(s) off. This right, however, is independent from the question of public holidays. The fact that public holidays are often matched up to the holidays of a particular religion is not a problem concerning freedom of religion if other provisions are guaranteed for religious minorities. It is a problem of neutrality because it is likely that this state of affairs is the result of a political process that gave greater weight to the interests of some citizens over those of others, or which did not consider the interests of all citizens who are now affected by the regulation. Given that society changes over times, even regulations that were fair to everyone affected at the time they were introduced might no longer be fair under changed circumstances.29

6.6 The need to be aware of differences Treating people as equals requires a particular dimension in which they are treated as equals, and a sense, relating to this particular dimension, in which they actually are equals. Citizens are to be treated as equals in view of the rights and duties of citizenship. They are equals in that they possess the two moral powers for the right and the good to the necessary minimal degree to be fully cooperating members of society. Treating citizens as equals in view of the foundation of their equality means to respect these two moral powers. Respecting the capacity for the right and the good sets certain requirements in terms of basic liberties, the priority of these liberties over other concerns like the public good, and most importantly in terms of a fair value of the political liberties. Furthermore, respecting the capacity for the good requires giving citizens as much room as possible to live according to their conception of the good life. These requirements, together with the conceptions of citizens as free defended in Chapter 5, support the claim for justificatory neutrality. However, justificatory neutrality leaves room for different implementations. Different implementations affect the chances of citizens to live according to their conception of the good. It is inevitable that some conceptions are affected worse than others, since – as argued in Chapter 1 – outcome focused conceptions of neutrality have counter-intuitive consequences that disqualify them from consideration. Uneven outcomes are unfortunate in any case. They are morally troubling when they are avoidable and in particular when those affected

29 The main problem with regard to the case for public holidays is the question if it is possible to provide a justificatorily neutral argument for the need of a certain number of public holidays.

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did not have a fair chance to argue for a less inconvenient solution, that is, when minorities do not get fair value in terms of political liberties. As Rawls argues, the fair value of political liberties is often undermined by socio-economic differences, and his theory includes protections ensuring an equal standing in relation to socio-economic differences. As multiculturalists, post-colonialists, feminists, and other supporters of minority rights argue, cultural differences can undermine the fair value of political liberties, too. This danger arises because all political institutions are themselves culturally shaped. In order to treat citizens as equals and to respect their two moral powers equally, it is therefore necessary to counteract the influences of cultural differences. This requires that the implementation of neutrally justified regulations is not difference blind but rather difference sensitive, that is, takes the interests resulting from different conceptions of the good seriously.

7 Implementing liberal neutrality In Chapter 5 I argued that the state has no business concerning itself with its citizens’ conceptions of the good life and called this the respect element of neutrality. All state action needs to be justified with reasons citizens can be expected to reasonably agree on. Moreover, citizens understood as free and equal have a right to be left alone from state involvement (following from their right to the social bases of self-respect), and this right can only be outweighed by other rights such as those necessary to ensuring fair terms of cooperation. In Chapter 6 I argued for the fairness element of neutrality: treating citizens equipped with the two moral powers for the right and the good as equals requires not only leaving them ample room to live the way they choose. It also means that they are entitled to full and equal political rights. The state is furthermore obliged to attempt to ensure that these formally equal political rights also have fair value. Consequently, obstacles to the equal standing of citizens in the political sphere – be they socio-economic or cultural differences – ought to be addressed. The purpose of this chapter is to spell out a little more: a) what justificatory neutrality according to the respect element amounts to and b) what addressing cultural differences according to the fairness element might look like. With regard to the first question, I will argue that the Rawlsian conception of society as a fair system of cooperation among citizens understood as free and equal provides some important constraints and guidelines. The finer details of a full understanding of fair terms of cooperation for any particular society, however, depend on how the citizens employ their sense of justice as they are entitled to as free and equal citizens. This commitment to democracy makes the question of how to ensure the fair value of equal political rights even more urgent. With regard to the second question, I show that protecting the fair value of political rights in the cultural sphere is very different from protecting this value in the socio-economic sphere. While socio-economic differences can be countered by subsidies for political activism and/or redistribution of wealth, such measures would be inappropriate and/or impossible in the cultural sphere. It is not possible to redistribute respect or even the willingness to listen to the concerns of others! I will discuss some suggestions on how to counteract the effects of cultural difference in the political sphere. My evaluation, however, is necessary limited: what works best in any particular society depends on the particular features of this society and cannot be evaluated in abstract. What I am in a position to evaluate are possible dangers with regard to the guiding principles of justice underlying the liberal neutralist approach.

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To illustrate the practical implications of my theory, I go back to discussing the headscarf case introduced in Chapter 2. The question at stake was whether a teacher in a German public school should be allowed to wear her headscarf while teaching. The school authorities argued ‘no’, referring to the idea of state neutrality by claiming that it is inappropriate for teachers to be clearly identifiable as adherents of a particular interpretation of Islam. The defence argued ‘yes’, also with reference to the idea of neutrality by demanding that a neutral state accommodate the interests of Muslim citizens teachers just as well as those of Christian citizens teachers and not discriminate against particular religions.1

7.1 Justificatory neutrality The general understanding of justificatory neutrality is that state action ought to be justified by particular kinds of reasons, namely, neutral reasons. What kind of reasons can be considered neutral, however, is as unclear as the term neutrality itself. From what I said before, it is clear that my understanding of neutrality does not require neutral reasons to be free from value commitments. On the contrary, liberal neutrality refers to some genuinely liberal commitments: it relies on the understanding of society as a fair system of cooperation among citizens understood as free and equal. In Chapter 5, I argued this very value commitment leads to two criteria for reasons to be neutral: 1. Justifications for state action must be such that citizens understood as free and equal can be expected to reasonably agree to them. 2. Justifications for state action need to outweigh the right of citizens to be left alone from state involvement in their life choices. Since only rights can outweigh other rights, justifications of state action need to be concerned with matters of justice.2 The most obvious question now is: which principles of justice can citizens understood as free and equal be expected to reasonably agree on? The background

1 BVerfG, 2BvR 1436/02 of 24.09.2003. See Chapter 2. 2 As discussed in Chapter 3, justice in its formal understanding concerns what people owe to each other. Justice is thus concerned with rights and obligations following from interpersonal relationships. This excludes concerns for impersonal values like beauty. However, this does not exclude by definition that people might not be entitled to an education which allows them to appreciate art if that is a precondition for being a full and equal member of a society dominated by art-connoisseurs.

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conception of society as a fair system of cooperation among citizens understood as free and equal persons informs at least four areas of justice: 1. 2. 3. 4.

Rights and duties relating to the idea of citizens as free. Rights and duties relating to the idea of citizens as equal. Rights and duties necessary for enabling cooperation. Rights and duties necessary for ensuring that cooperation is fair.

In the following I will briefly set out which concerns fall under these headings, which limits are set by the underlying Rawlsian framework I employ, and what sphere of discretion is left by these guidelines.

7.1.1 Citizens as free As discussed before, in the Rawlsian understanding, citizens are free in three respects: 1. ‘they conceive of themselves and of one another as having the moral power to have a conception of the good,’3 2. ‘they regard themselves as self-authenticating sources of valid claims,’4 and 3. ‘they are viewed as capable of taking responsibility for their ends.’5 The understanding of citizens as free thus links to the moral powers which include the capacity to form, pursue, and revise their conceptions of the good and the right. This means that citizens see themselves and each other as beings which are in some degree independent of their current conceptions of the right and the good and able to adjust their conceptions to new experiences, circumstances, and considerations (first aspect). They accept that this freedom comes at the price of taking responsibility for the outcome of the decisions based on these commitments – even though these commitments are not entirely freely chosen (third aspect). Furthermore, they are committed to the idea that the chooser – if not the choice itself – commands respect and that they ought to treat each other’s claims as prima facie worthy of consideration (second aspect).6

3 4 5 6

Rawls (1996): Political Liberalism, 30. Rawls (1996): Political Liberalism, 32. Rawls (1996): Political Liberalism, 33. See Chapter 4.

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This rough understanding of freedoms sets some limits on which conceptions of the right – theories of justice – citizens so understood can be expected to reasonably agree on. They could not, for example, be expected to reasonably agree to principles denying or endangering any of the primary goods which Rawls sees as necessary for protecting the exercise of the two moral powers.7 In particular, they could not agree to political settings denying them basic liberties like freedom of conscience, speech, association, movement, and occupation. Furthermore, citizens understood as free cannot reasonably agree to any political system that denies them the opportunity of participating in shaping the social institutions they live in. Nor could they agree to any policies threatening the social bases of self-respect. This rules out discriminatory policies or policies likely to lead to exploitation and the like, but also – as argued in Chapter 5 – paternalistic policies which raise doubts regarding the fitness of free and equal citizens to lead their own lives. However, while this understanding of citizens as free sets some limits on the public conception of justice, it still leaves plenty of room for reasonable disagreement: the idea of citizens as free by itself gives little guidance as to how to balance, for example, freedom of speech against protections against libel or mass hysteria. Basic liberties can conflict with each other, and there are different ways to balance the relevant concerns in any given situation. Applied to the headscarf case discussed in Chapter 2, the rights and duties stemming from this understanding of citizens as free support the following positive principles: 1. Positive freedom of religion: citizens may only be limited in the exercise of their religion when this exercise affects the rights of others. This leads to a prima facie permission to wear a headscarf. 2. Negative freedom of religion: the state must not promote any particular religion through its (compulsory) institutions. This leads to a prima facie case for keeping the religious commitments of school teachers, who are authority figures as well as representatives of the state, out of the school. 3. Freedom of occupation: citizens ought to be free to strive for any job they are qualified to exercise – the necessary qualifications must relate directly to the requirements of the job. This means that Muslim teachers must not be prevented or discouraged from pursuing careers in teaching.

7 For Rawls’s discussion of how the primary goods protect the two moral powers see Rawls (1996): Political Liberalism, Chapter XIII.

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The understanding of citizens as free and entitled to the social bases of selfrespect also rules out prohibiting headscarves for the reason that mainstream society dislikes them or that people are might feel uncomfortable seeing others wearing headscarves. Such considerations by themselves are not in a position to outweigh the right to follow the commands of one’s conscience or even to express one’s religious commitment. This is so even though seeing others wearing headscarves might be extremely painful, for example, to Muslim women with a different understanding of Islam who are thereby reminded of the opposition, repression, and hostility in their families and communities and whose choice not to wear a headscarf will stand out more drastically the more others wear headscarves. The claims following from the understanding of citizens as free set some limits on what may or may not be argued in the headscarf case, but they do not prescribe a particular conclusion (at least not at this point). Whether negative freedom of religion involves a right to be free from witnessing any religious commitment of state officials is a question which requires balancing the different accounts of freedom of religion and is open to reasonable disagreement. The argument that children forced to attend school must not be submitted to an authority figure advertising a particular faith by her dress is not ruled out at this stage. Nor is it clear whether the job description of a teacher may or may not include the requirement to refrain from visibly committing to any particular faith. All that is ruled out at this point is any regulation which does not give weighty reasons for limiting the freedom to wear what one considers appropriate dress given one’s self-understanding.

7.1.2 Citizens as equal The understanding of citizens as equal provides a second area of considerations of justice citizens can be expected to reasonably agree to. As discussed in Chapter 4, citizens are equal in the Rawlsian understanding insofar as they possess the two moral powers for the right and the good to the minimal necessary degree to be fully cooperating members of society understood as a fair system of cooperation.8 Their equality refers to their equal standing as citizens. Citizens understood as equals could not reasonably agree to any conception of justice which would threaten or undermine this equal standing, for example, by discriminating on the basis of race, gender, or social background. Furthermore, the understanding of

8 See Chapter 4.

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citizens as equal in this sense motivates not only a public theory of justice with provisions against discrimination but also some positive provisions for ensuring that the equal standing of citizens is not undermined by other factors. Given, for example, the danger that grave socio-economic differences threaten the equal standing of citizens – be it in terms of education or political influence – it is plausible that citizens will reasonably agree on some provisions for social justice and civic education. However, once more there is plenty of room for reasonable disagreement as to the specific understanding of social justice, civic education, and campaign funding any particular society wishes to adopt. A closer look at the idea of citizens as equals determines which questions ought to be addressed as matters of justice in the sense of both positive and negative rights. Nonetheless by itself, the reference to the idea does not determine which rights and duties in particular follow, how they are best protected, and how they might be weighed against each other. Taking the idea of citizens as free and equal persons as starting point sets some limits on which rights and duties we can imagine and require but does not determine all the details. At this point I even want to be agnostic in the question whether the resulting rights and duties are best understood within an interest/need theory or a choice/status theory of rights.9 It is plausible to argue that citizens characterised as free have a right to freedom of religion because such beings have an interest/need in this freedom sufficiently fundamental to impose duties on others (interest/need theory). Equally, we can argue that persons understood as free in this sense have this right because granting this freedom is a necessary condition for treating such beings as they ought to be treated (choice/status theory of rights). This leaves room for reasonable disagreement in deliberation and democratic decision making. While setting some limits, this account respects citizens’ right to participate in the process of negotiating the best public theory of justice for their particular society. Applied to the example of headscarves, the commitment to citizens’ equality requires, first of all, acknowledging that the rights of citizens with an immigrant background and ‘foreign’ cultural commitments matter just as much as those of the ‘indigenous’ mainstream society. The majority – minority question should not matter when we evaluate whether the negative freedom from possible religious influence should take precedence over the positive freedom to abide by the

9 As discussed before, I understand interest and choice theories of rights as theories regarding the question of what it means to have a right and need and status theories of rights as theories aiming to explain why people have any particular right. I assume that there is likely to be a strong correlation of interest and need theories as well as status and choice theories. For the more detailed discussion, see Chapter 3.

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commands of one’s conscience as far as religious dress codes are concerned. The commitment to equal citizenship means furthermore that the state must not discriminate against particular religions in its employment policies. This does not only mean that it must not directly exclude any group of believers from any particular profession but also that it must take care to ensure that employment policies are not indirectly biased against particular religions. The state should consider, for example, whether its norms for professional dress codes are much easier to fulfil for some rather than other religions. Some disadvantages are unproblematic. If construction site workers need to wear helmets for safety reasons, then this is only unfortunate for turban wearers and not a matter of unfair bias. If professional dress codes are not directly determined by their purposes (as helmets are), things look different: if uniforms only aim to make employees identifiable as employees, there is no reason why such uniforms should not to accommodate religious dress requirements. Failing to accommodate such needs where this is easily possible unfairly disadvantages some employees. If the headscarf ban is understood merely as to ensure that teachers are not being identified as members of any particular religious community, then it is not clear why the norm should be not wearing a headscarf rather than everyone wearing a headscarf.10 In both cases teachers would no longer be identifiable as Muslim or non-Muslim. Furthermore, while some Muslims feel religiously obliged to wear headscarves, neither Christians nor atheists seem able to make a good case that their conscience forbids them to cover their hair. Obviously it is possible to argue that banning headscarves is not only a measure to ensure that teachers are not identifiable as followers of particular religious traditions and that other considerations are relevant, too.11 One might, for example, claim that making the majority wear headscarves is an unacceptable infringement of their rights to dress as they please, whereas requiring a minority to forgo wearing their headscarves in class is an acceptable burden immigrants must accept when they become full members of German society. The media debates on headscarves included such claims, often backed up by concerns regarding non-liberal understandings of Islam, the requirement for immigrants to integrate into the (political) culture of their host country, and the need for social cohesion expressed by unifying cultural commitments. Understanding citizens as equals in the Rawlsian sense make such claims harder, if not impossible, to sustain: if citizens are understood as equals in virtue of their two moral powers, then the fact that some

10 Or a paper bag over the head as Ben Saunders jokingly suggested to me. 11 See the detailed discussion in Chapter 2.

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conceptions of the good have a longer tradition within a particular society than others is not – by itself – a reason to give them greater importance than one is willing to grant to other conceptions of the good. Furthermore, according to the idea of the fair value of equal political rights, the state must counteract possible negative influence of cultural differences on the political opportunities of minorities. This might include addressing prejudices as well as making cultural difference and its acceptability more visible. This in turn might speak for allowing headscarves. It certainly requires discussing the issue of headscarves as well as other contested questions of pluralism in schools as part of the curriculum. When introducing the political system and its theoretical foundations, it seems necessary to teach children that cultural difference exists, is acceptable, and ultimately is a private matter. The particular aim with regard to the headscarves of teachers would be to teach children that someone can be an authority in one respect – for example, as a maths teacher – and not be an authority in a different respect – such as religious beliefs. One could well argue that this approach to the issue prevents the danger of undue influence while giving teachers the freedom to fulfil their religious commitments.

7.1.3 Enabling cooperation A third area of justice relating to my Rawlsian understanding of citizens as free and equal members of society understood as a fair system of cooperation refers to the preconditions of cooperation. Not all regulations of the state refer to some rights and duties directly based on any characteristics of citizens understood as free and equal persons. Whether they are understood in the context of interest/ need theories or choice/status theories of rights, the rights directly referring to the political conception of the person do not provide any reason why people should drive on the left rather than on the right. Conventions like these are introduced as well as enforced by the state. In one sense all regulations of the state are introduced as well as enforced. Even if there is some very basic uncontroversial right, for example, the right not to be killed, the particulars of how it is implemented and enforced depend on how the right is codified as a regulation of the state. But in such cases, the implementation depends to a good part on the content and justification of that right and leaves the state only limited leeway, for example, regarding cases of self-defence. Conventions are different: there is no independent moral rule which needs to be codified, but rather there is a coordination problem which needs to be solved. It is not immediately obvious why conventions, like traffic regulations, should be matters of justice,

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which – according to the argument in Chapter 5 – they need to be in order to be legitimate objects of state action. At the same time, it is evident that introducing and enforcing coordinating regulations is one of the most important tasks of the state, and its regulation of these matters is usually much more extensive than its laws regarding matters of basic rights. Interest/need theories can argue that there is a strong interest in effective cooperation (and avoiding the costs of unregulated traffic) and thus a right and a duty to find and introduce appropriate regulations. Choice theories, for which freedom is a zero sum game, can argue that, for citizens’ freedoms to be compossible (possible together at the same time12), citizens can either have the freedom/right to drive on the left or the freedom/right to drive on the right but not both and that therefore the state has to decide which option it shall be. From both perspectives the argument is thus that justice requires coordinating regulation in order to be complete. The particular contents of the conventions are not matters of justice, but the existence of such regulations is. As the domain of claims that people have on each other, justice requires that certain coordination problems are solved. It would be incomplete if matters were left entirely unregulated where coordination is necessary for knowing what to expect of each other. Government involvement is thus justified if and only if regulation is required as a matter of justice, though this time the relation between the law and its justification is different and does not have to be one of entailment. In the case of basic rights, there is a prior claim of justice which the state codifies and enforces. In the case of conventions, the completeness of justice requires solving a coordination problem. The state is the one to assign the rights and duties necessary to do so, since the idea that society ought to be a fair system of cooperation entrusts the state not only with the task of ensuring fairness but also – and perhaps first of all – with the task of enabling cooperation.

7.1.4 Fair cooperation Finally, the Rawlsian conception of society as a fair system of cooperation among citizens understood as free and equal persons motivates principles of justice which aim at ensuring that cooperation is fair. This relates, first of all, to principles and policies ensuring compliance both with those rights and duties deemed necessary to protect the standing of citizens as free and equal and with those regulations

12 On the term ‘compossible,’ see Steiner’s discussion in Steiner (1994): An Essay on Rights, 2f. and 33f.

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required to enable cooperation. Apart from provisions concerning penal justice, this also includes provisions ensuring that all citizens are in a position to know their exact rights and duties and are in a position to exercise them. A second major field of justice relating to this element of the normative background of liberal neutrality are questions regarding the fair distribution of benefits and burdens of cooperation. Cooperation as well as the regulations enabling cooperation create surplus benefits and costs beyond individual transactions. For example, society understood as a fair system of cooperation enables the provision of public goods. By public goods I mean goods which we cannot prevent others enjoying: examples include national defence, protections against pollution, and other measures for environmental protection as well as the before mentioned regulations ensuring safe traffic.13 Establishing society as a fair system of cooperation solves various coordination problems and thus helps avoid the free rider problem and the tragedy of the commons. The free rider problem is that people cannot be excluded from enjoying public goods, even though they do nothing to support the continued existence of this good. Given the possibility of getting the good for free, the motivation to contribute might not be sufficient to secure the good for long. The tragedy of the commons focuses again on the feature of non-excludability: even though the public good in question diminishes or is even destroyed by overuse, no one can be exempted from continuing to use it. The motivation to refrain from use is limited by the knowledge that others might not. In both cases, individuals will be less willing to produce and protect public goods because they worry they are being exploited by others who do not cooperate fully. Understanding society as a fair system of cooperation requires ensuring that the benefits and burdens of important public goods are distributed fairly within society, thus giving justification for states regulating the provision and use of public goods. However, this justification is limited only to those public goods which are matters of justice. Given that I think there is a good case for a right to an unpolluted environment, this public good is likely to be a good candidate for legitimate government action.14 The case of the public good of subsidised opera houses, on the contrary, seems to me much harder to defend, at least outside of exceptional circumstances.

13 In economic theory public goods are usually understood as goods that are non-rival as well as non-excludable. That is, it is assumed that these goods do not diminish by being used. However, as in the case of clean air, some non-excludable goods can and do diminish because of being used in certain ways. It is these cases particularly where the tragedy of the commons becomes relevant. I will therefore focus here only on the condition of non-excludability and drop the requirement of non-rivalry from my understanding of public goods here. 14 See, for example, Hayward (2005): Constitutional Environmental Rights.

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Understanding society as a fair system of cooperation furthermore requires that there is no systematic bias of the kind that means that some groups of citizens mostly benefit from the terms of cooperation, whereas others are predominantly on the losing side. In a system of cooperation involving competition for jobs, for example, this reinforces the requirement for provisions against discrimination on the basis of arbitrary factors like gender and race. It also requires ensuring that all citizens have fair opportunity to develop those skills which are considered legitimate reasons for distinguishing amongst job applicants. This provides further reasons for having an education system which counters the effects of socioeconomic difference. The same ideal of citizens as free and equal members of society understood as a fair system of cooperation informs both the requirement for liberal neutrality and that for some provisions of social justice. With regard to the headscarf case, the idea of fair cooperation emphasises the importance of trying to avoid imposing higher burdens on Muslim compared to Christian teachers. Consequently it raises the question whether the understanding of appropriate dress for teachers is not itself culturally influenced. One could, for example, point to the fact that the understanding of religion as something very personal which can be practised entirely in private is closely linked to the Lutheran credo that all that matters is the personal faith in salvation. Other streams of Christianity as well as other religions put much more emphasis on the communal and visible aspects of practising one’s religion. The point here is different from the concerns about access to jobs mentioned before. Understanding citizens as equals requires not only adjusting the processes which decide who gets which positions but also means that the structure which gives those positions their content needs to be reassessed.15

7.1.5 The scope and limits of justificatory neutrality This discussion of justificatorily neutral reasoning cannot be complete. It sets out some areas where state action is obviously legitimate given the understanding of society as a fair system of cooperation among free and equal citizens. It also sets out some limits by pointing out that regulations in direct and obvious opposition to this ideal would not be something citizens could be expected to reasonably agree on. However, justificatory neutrality leaves open which weight is to be given to different rights and how to best protect particular rights within

15 For a thoughtful discussion of such claims, see McKinnon (2007): Democracy, Equality and Toleration.

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the particular context of any given society. It is important at this point that, while this scope responds to what Rawls calls the burdens of judgement, it does not rule out that there might be in some cases one right answer to any particular case.16 Nonetheless, even if there should be a particular case where a fine grained argument could show that a particular implementation follows directly from the ideals underlying the liberal democratic commitment: if those promoting this solution fail to convince their fellow citizens of the merits of this solution, the majority rules. The justification for the scope for decision making is not merely epistemological, it also refers to the right of citizens to be included in determining the terms of cooperation of their society, and this makes democratic processes necessary.17

7.2 Procedural neutrality Given this fundamental commitment to democratic decision making, it is necessary to ensure that the democratic procedures of liberally neutral societies really protect and enable the collective self-determination of citizens understood as free and equal persons.

7.2.1 Equal political rights and their fair value The most obvious requirement is that citizens have equal political rights. This rules out various forms of institutional discrimination but once more leaves plenty of room for different institutional arrangements. While these questions would require a much more detailed analysis, I will neglect them here and focus on the question of how to ensure the fair value of equal political rights – however institutionalised – in the cultural sphere.18 A first danger to the fair value of equal political rights is the existence of grave socio-economic differences within society. As far back as the eighteenth century, Rousseau argued for provisions against inequalities which would undermine the equal standing of citizens:

16 See Rawls (1996): Political Liberalism, 56f. and the discussion in Chapter 5 above. 17 For more on this point, see Chapter 6 as well as, for example, Christiano (2004): The Authority of Democracy. 18 For detailed debates on how democracy is best understood and realised, see, for example, Christiano (1996): The Rule of the Many, Christiano (ed.) (2003): Philosophy and Democracy: an Anthology, and Estlund (2002): Democracy.

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as for equality, this word must not be taken to imply that degrees of power and wealth should be absolutely the same for all, but rather that power shall stop short of violence and never be exercised except by virtue of authority and law, and, where wealth is concerned, that no citizen shall be rich enough to buy another and none so poor as to be forced to sell himself; this in turn implies that the more exalted persons need moderation in goods and influence and the humbler persons moderation in avarice and covetousness.19

Rawls’s requirements with regard to the protection against the distorting influence of socio-economic differences are much more demanding. They are visible in his fair equality of opportunity principle and his difference principle as well as his remarks on campaign funding.20 Here, I do not want to engage with this issue but rather focus on the question of cultural differences. In Chapter 6 I argued that cultural differences can undermine the fair value of equal political rights just as socio-economic differences can, but need to be addressed in a different way. Ensuring the fair value of equal political rights in the cultural sphere requires taking cultural differences seriously in the implementation of neutrally justified rules. Unless active action is taken to ensure that minority voices are present in policy debates, there is a real danger that the fair value of equal political rights of members of cultural minorities will be undermined because their interests are not heard, not understood, or not taken seriously as legitimate interests of fellow equal citizens. In Catriona McKinnon’s words: Without placing an explicit commitment to pluralism at the forefront of policy-making in a way fit to constrain it, aspirant democracies will run the risk of becoming tyrannies of the majority in which ‘equality’ means ‘sameness.’21

That is, in order to be neutral, the state has to take people’s conceptions of the good into account when discussing the implementation of neutrally justified regulations. The question now is how this can be institutionally organised.

19 Rousseau (1968 [1762]): The Social Contract, Book II, Chapter 11, 96. 20 See Rawls (1996): Political Liberalism, Lecture VIII. 21 McKinnon (2007): Democracy, Equality and Toleration, 146.

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7.2.2 Minority representation Iris Marion Young discusses several possibilities to ensure that minority voices get a fair hearing: 1. reserved seats in parliaments, committees, and other influential institutions, 2. proportional representation, 3. redrawing the boundaries of constituencies to ensure certain groups are a majority within them, 4. consultations with group representatives, and 5. using quotas when selecting party candidates for election lists. Many countries adopt some of these suggestions. Some political parties in European countries have quotas for candidate lists to ensure a better gender balance in government. Borders of some constituencies in the US have been redrawn according to the race or ethnicity of the inhabitants. The reserved seats for the Church of England in the House of Lords are occasionally defended as a measure ensuring that particularly religious concerns can be raised and defended within parliament.22 The German state has institutionalised consultations with the Protestant and Catholic churches and also recently introduced an ‘Islam Conference’ where representatives of different Muslim groups (including non-religious members of traditional Muslim ethnic groups) meet with state officials to ensure that the state is aware of particular concerns within the various religious communities.23 All these measures are aimed at ensuring that cultural differences get the appropriate attention necessary to create and maintain equality for the members of different cultural groups. The different proposals have different advantages and disadvantages both in general and in terms of particular issues. Reserved seats, for example, are more vulnerable than consultations to the objection that special representation undermines equal political rights. All these proposals, however, have in common that they are institutionalizations of group representation. Before discussing any particular advantages and disadvantages, it is therefore necessary to evaluate the idea of group representation as such. If – as I will argue – the idea of group representation is problematic as such, then none of these proposals can offer an acceptable solution for ensuring the equal standing of citizens. However, in order 22 See Martin Steven’s paper ‘Keeping the faith: the role of religion in British party politics’ presented at the UACES Study Group meeting on ‘Values and the European Union,’ University of Glasgow, 24–25 April 2009. 23 See Bundesamt für Migration und Flüchtlinge (2012): Deutsche Islam Konferenz.

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to show that, we first need to understand what is involved in the most plausible understanding of group representation.24 Young develops a conception of group representation that avoids the most common objections raised against the idea. In particular she aims to avoid the following three related problems: 1. Group representation can lead to an ‘essentialising’ of group identities. Members sometimes are pressured to identify with a particular interpretation of their group identity. This identity then becomes more static, internal differences are suppressed, and differences rather than similarities are emphasised vis-à-vis other groups and mainstream society. In Young’s words ‘the unifying process required by group representation tries to freeze the fluid relations into a unified identity, which can re-create oppressive exclusions.’25 2. Group representation bears the danger that elites within the groups speak for the entire group and the voices of minorities within the minority group are even less able to get attention within the wider society. The majority might feel that by granting group representation it has already fulfilled its duty to be aware of cultural differences.26 3. It is unclear which differences are relevant and which groups ought to be represented. Problems of marginalisation exist even within and across particular groups. ‘Differences of race and class cut across gender, differences of gender and ethnicity cut across religion, and so on.’27 Young argues that, in view of these problems, conceptions of group representation should fulfil two requirements in addition to the criteria of democratic authorization and accountability of representatives: 1. Representation has to be understood as representation of a particular perspective rather than representation of particular interests and opinions. 2. Representation has to be diverse: as many perspectives as possible ought to be represented.

24 By group representation I mean representation of cultural, religious, or ethnic groups who are considered to share some kind of politically relevant identity rather than constituencies dividing up the electorate along practical and/or historical considerations. 25 Young (2000): Inclusion and Democracy, 122. For further critiques of essentialising, see also Gould (1996): Diversity and Democracy, 182–184. 26 For in depth discussion of this issue, see, for example, Eisenberg/Spinner-Halev (2005): Minorities within Minorities. 27 Young (2000): Inclusion and Democracy, 122.

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Young argues that what unites social groups is not a shared identity in the sense of shared characteristics, ideological commitments, and interests but a particular perspective on the social world. Members of social groups come to have this perspective as a result of their experiences as members of the group. They see things in a particular way, for example, not only because their culture/tradition teaches them to see them that way but also because they are faced with particular expectations that people have of them in view of being members of the group. These expectations come both from other members and non-members and the response to such expectations might be very different among group members. Not all women, for example, are interested in having children, just as different women have very different ideas on how they would like to experience motherhood. However, it is hard to imagine a woman who will not come across some expectations relating to motherhood during her life. In another, less pleasant, example, not all women experience sexual harassment, but most women will have heard reports and received warnings and thus will have thought about the topic as something they may have to deal with. And while sexual harassment of men occurs, men are not expected to be aware of the danger and to act in ways suitable for avoiding it to anything like the same extent.28 Furthermore, not only individual experiences but also the perception of the group throughout history shape the way women might regard the world. In view of a long history of discrimination against women, even women who have not faced discrimination themselves have good reasons to be suspicious of practices that might be considered discriminatory. The same is true of members of religious, ethnic, and cultural minorities. By shifting the focus from shared characteristics and opinions to shared experiences, Young’s conception of group representation avoids the danger of essentialising group identities. A shared perspective – in the sense of being aware of particular expectations and experiences that might be relevant for anyone belonging to that particular group – does not preclude different ways of evaluating and responding to these expectations and experiences. Women as a group would not be perceived as a group of people sharing particular ideals, characteristics, or purposes in life but rather as a group of people who share particular experiences and expectations. To fit in you do not have to be anyone in particular, you just have to have or anticipate particular experiences.29 Wo-

28 See, for example, Young’s discussion of cooperation between women legislators across party lines in pushing for investigation of harassment charges against an US senator (Young (2000): Inclusion and Democracy, 140). 29 While transvestites might be not be facing the same expectations regarding motherhood, they might experience similar forms of sexual harassment and advice relating to sexual harassment and thus make a plausible claim to share a female perspective in this sense.

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men thus need not to make a case that they have a particular female way of thinking and feeling to make claims that some issues are of particular concern for them. Furthermore, Young’s proposal aims at limiting the extent to which internal hierarchies dominate how a particular group is represented. Given Young’s specific understanding of representation anyone chosen to represent women would not be seen as someone speaking for women but rather as someone who ensures that the particular perspective which women, as women, might have on the subject is not neglected. Young’s understanding of perspective makes it impossible for any one person to represent any group in its entirety. Every perspective is shaped by a number of factors. Gender is one, but ethnicity, class, and religion – to name just some of the most influential – also shape the way we see the world. Different women face different expectations and experiences even if they relate to the same issues and so deal with them in different ways. Representation is therefore understood as necessarily multiple. The very same public official might have insight in different social and cultural perspectives, and only in debate between different representatives with overlapping perspectives is it possible to analyse, for example, which elements belong to a particularly female perspective. Young’s emphasis on representing as many perspectives as possible thus avoids the danger of internal hierarchies within groups. Furthermore, as there is no need for any orthodox understanding of a particular group characteristic, there is less need for clear institutionalization of groups. The focus on perspective also provides a possible solution to the question of which differences should be acknowledged as important: in one sense we do not have to choose whether a particular representative should focus on representing one or the other of the different aspects of identity. Instead this representative would be able to provide different perspectives – as a woman, as member of an ethnic minority, as member of a particular religion, and as someone from a particular class background – and thus enrich debate in ways that allow a more complete picture of social reality. With this aim in view, as many perspectives as possible should enter political debate. In a different sense, no conception of group representation can escape the question of which groups are to be represented and why, and so, the challenge that any solution will exclude some groups. Whether we want to reserve seats in parliament or committees, represent groups proportionally, draw the boundaries of constituencies in a way that creates particular majorities, consult group representatives, or have quotas for members of different groups in candidate lists, we need to ask which groups we want to hear and why. For Young, this question is not difficult to answer: groups are entitled to special representation whenever they are marginalised (or have only recently

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and possibly not fully overcome a history of marginalisation). There thus is a list of obvious candidates in any particular country. In most western societies, women, ethnic and religious minorities, and lower social classes qualify given, for example, their underrepresentation in positions of political, economical, and media power. Yet, for any particular choice, there are other groups – perhaps only slightly less marginalised – who we do not support by special group representation, and there are probably also groups we are not even aware of marginalising. Furthermore, all of the possible institutions of group representation only work when there is a limited number of groups. For example, introducing quotas or reserved seats for women, racial, and ethnic minorities might well be feasible, whereas introducing this for all the different religious minorities clearly is not. Moreover, it is not clear that the danger that women’s perspectives are neglected is more serious than the possibility that the needs of a particular minority religion are not considered. This creates a problem. Any scheme of group representation would need to rank perspectives in order of importance to decide which to give representation to, and this ordering could only be partly explained with reference to marginalisation or actual disadvantages in the public sphere. This is particularly relevant for my project, which is significantly different from Young’s. Young aims to overcome group-related disadvantages in the political sphere and to enrich public debate by including a multitude of different perspectives. My argument claims that treating citizens as equals requires awareness of cultural differences in order to avoid these differences undermining the fair value of their political liberties. Ultimately we are both concerned with equality. Young’s project aims at affirmative action to ensure that discrimination and exclusion are overcome and differences stop generating domination of various sorts. My project is to ask what it means to treat different citizens as equals in view of their ongoing cultural differences even after discrimination is overcome. Consequently for me treating citizens as equals, requires ensuring that unnecessary burdens posed on particular conceptions of the good life are avoided and that any unavoidable burdens are decided on and distributed by a process which all have fair opportunities to participate in. Even Young’s modified conception of group representation encounters three problems here: 1. Group representation focuses on particular groups and neglects other groups. Focusing on historically marginalised groups is perfectly sensible within a project aiming at overcoming injustices like discrimination and exclusion, but it is not necessarily the best strategy to ensure equality of citizens in view of ongoing differences.

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2. Group representation of marginalised groups only works when we are aware that a particular group is marginalised. If we rely on nothing but the representation of groups that already received enough public attention to be recognised as marginalised, we might neglect groups that are so marginalised that the public is not even aware of them. And those are precisely the ones for whom a particular implementation of a neutrally justified regulation poses an unnecessary burden: we are simple not aware that our implementation affects them. 3. Group representation requires a group. I argued above that disadvantages caused by particular implementations of neutrally justified rules are morally troubling if they are avoidable and if those facing them do not have a fair chance to argue for a less inconvenient solution through their political rights. Nothing implies that there has to be more than one person affected by these disadvantages. In Young’s project the focus on groups makes sense: problems like discrimination and exclusion (rather than neglect) attach to particular group identities. In my project the focus on groups is misleading. Young is concerned with ensuring that group members are not discriminated against qua group members, whereas I am concerned they are not discriminated against at all, either as group members or individuals, and that requires more than group representation. In particular, it requires individuals having equal access to the political sphere. Even though Young’s account of group representation avoids some of the problems associated with the concept, it does not provide a solution to the particular problem of what it means to treat citizens as equals in view of their cultural differences. Group representation might be helpful and possibly even necessary to overcome historical forms of discrimination and exclusion which is a necessary condition for the equal standing of citizens. Some forms of group representation might also be helpful tools to ensure awareness for cultural differences. By highlighting the impact of some cultural differences, it might raise awareness that other cultural influences might be influential, too.30 Nonetheless, group representation as such is an insufficient strategy for ensuring the political equality of citizens. Some forms of group representation might even be counterproductive. For example: 30 For another account why group representation in form of a ‘politics of presence’ is necessary to re-integrate parts of the electorate who felt themselves excluded due to their ethnicity, religion, or gender into public discourse and decision making, see Phillips (1996): Dealing with Difference.

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1. A focus on certain groups and particular cultural differences might take attention away from other cultural differences which also threaten equal standing in the current culturally shaped political culture of the state. 2. A focus on groups might marginalise the more complex individual perspective. 3. Aiming at group representation by itself is a danger to political equality understood in the ‘one citizen – one vote’ sense. As such there is a strong case to limit it to circumstances where special representation is the only way to overcome severe inequalities in opportunities for political participation. However, even where some forms of group representation can be justified with reference to the equal standing of citizens, ensuring equality among citizens cannot rely solely on institutions based on group representation. So what else is required?

7.2.3 Contestatory democracy Let’s take a step back: Young’s main argument focused on the importance of ensuring that different perspectives – not only different interests and ideals – are heard in public debate and taken seriously as contributions to a political debate. The focus on perspective is important not because perspectives are relevant independently of interests and ideals but rather because some interests can only be explained fully with reference to particular experiences. Young’s central claim is that political debate ought to become more inclusive in order to ensure everyone gets a fair chance to argue for the accommodation of their interests. Inclusiveness is required also in order to ensure that all citizens are to be treated as equals despite their cultural differences. Young’s subsidiary claim is that, in order for the political debate to become more inclusive, groups whose perspective has been marginalised and devalued by discrimination and exclusion ought to receive special representation in order to overcome their disadvantaged position in society. While this might be a necessary condition for overcoming discrimination, it is insufficient to ensure equal standing of citizens. As shown above, equal standing is threatened by neglect as well as malice. Therefore the question is: which other institutions can help to ensure public debate and legislative procedures are responsive to the cultural differences of citizens?

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Philip Pettit’s discussion of contestatory democracy proves helpful here.31 His aim in developing a conception of contestatory democracy is to ensure that: 1. government is concerned with all common, recognizable interests of the people governed, and 2. government is only concerned with common, recognizable interests of the people governed.32 To ensure that the government does all it needs to do without getting involved in matters that are not its legitimate business, Pettit suggests that democracy has two relevant dimensions: 1. authoritative, and 2. contestative. The authoritative dimension relates to fair democratic procedures. The contestative dimension introduces mechanisms for challenging particular laws. It has both ex ante as well as ex post elements. Ex post elements make it sufficiently easy to contest a law once it is passed. Alone they are likely to result in great administrative burdens and much insecurity concerning the validity of laws. Pettit therefore proposes mechanisms within the legislative process that aim at avoiding later contestation. He thus envisages: 1. procedural measures, such as appropriate constraints on the content of laws, appropriate institutional arrangements like rule of law, separation of powers, deliberative democracy, bicameral approval, and depoliticised decision making, 2. consultative measures, such as mechanisms for direct appeals to parliament, and inquiring into the views of groups and organisations that are likely to be affected by some particular legislation, and 3. appellate procedures (as a final resort) to ensure that citizens have the opportunity to obtain judicial review as to whether the disadvantages they face due to a particular legislation are justified. Pettit is concerned with the legitimate limits of state action. In view of this aim, the above procedures are mainly aimed at preventing government to overstep

31 See Pettit (2000): Democracy, Electoral and Contestatory. 32 See Pettit (2000): Democracy, Electoral and Contestatory, 107.

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their legitimate constraints. They therefore focus on rights violations rather than on the inconveniences with which my project is concerned.33 However, the very same institutions might also be suitable to ensure citizens have the voice to challenge laws that are particularly inconvenient as well as ones that infringe their rights. Four of the resources that Pettit identifies seem particularly helpful in view of the challenge to ensure that all citizens have a fair chance to argue for an implementation of laws that is not too burdensome from the perspective of their particular conception of the good. These are: 1. 2. 3. 4.

deliberative democracy, direct appeals to parliament, consultation with groups likely to be affected by particular legislation, and appellate procedures to allow ex post challenges to particular laws.

With regard to deliberation, ensuring a fair say for all citizens not only requires that suitable forms of public political debate are established but also that these debates are conducted in ways that are open to different ways of presenting claims and interests. That is, legislative procedures should include established forums for public deliberation. Such debates should be open to considering interests from different kinds of conceptions of the good. They should also be open to different styles of argument, including story telling. Nonetheless, public deliberation still requires some limitations. Arguments that deny the rights of others are unacceptable. The same is true of arguments that are not presented in forms of interests of citizens based on particular conceptions of the good, but instead refer to religious revelation, the authority of the scripture, or are otherwise controversially grounded. Claims in the form of ‘We Muslim citizens have a particular interest in professional dress codes which allow accommodating religious dress’ are acceptable contributions to public debate, whereas claims in the form ‘Allah commands all women to wear headscarves, therefore professional dress codes ought to allow headscarves’ are not. The second strategy, of direct appeal to parliament, allows individuals as well as institutionalised interest groups to make their case. Procedures facilitating direct citizen input could be set up, e. g. web-pages where people could register particular concerns which legislators then would be obliged to consider in their deliberations. This would ensure that concerns of large, wealthy, or high-

33 Another important difference is obviously that Pettit and me have different ideas as to what the legitimate limits of state action are. His concern for ‘common, recognizable interests’ leaves more room for government action than my claim that the state must be concerned with fair terms of cooperation and nothing else.

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profile groups are not the only ones to have a chance to influence legislators and so an improvement on the classic liberal insistence that all that people really need are voting rights and access to the free media. The third strategy, additional consultations with existing organised groups likely to be affected by legislation, might help to lower the overall number of individual complaints and suggestions faced by the legislators. Given that these consultations are only part of the overall strategy to ensure a fair hearing, the problems associated with group representation are less of a concern here. Furthermore, to avoid the inconvenience of having to deal with many different individual complaints from minorities within these groups, the representatives of the legislature would be encouraged to get a diverse picture and ask for different perspectives from each consulted group. The fourth strategy, setting up appellate procedures, allows citizens to argue that they did not have a fair chance to influence the legislative process. The appellate courts judge whether the necessary legislative procedures were followed or whether biases distorted deliberations. If necessary they could refer the law back to the legislative body for reconsideration. It is important to note that this proposal only requires that the alternative implementation gets a fair hearing and discussion, not that it should be implemented all things considered. Judicial review also comes in to ensure that any legislation really is neutrally justified. Even if the distinction between the right and the good can be drawn sufficiently clearly in theory, in practise it will often be difficult to evaluate whether any particular legislation is justified on neutral reasons. These are precisely the kind of cases which motivate Pettit’s proposal. While he does not use the language of neutrality and has a different conception of the limits of state action from the one developed in Chapter 5, his main motivation for contestatory democracy is to prevent the state from overstepping its legitimate sphere of action and encroaching on citizens’ freedom. The institutions Pettit envisages (especially when complemented with Young’s insights regarding different styles of deliberation and the importance of multiple perspectives) help to protect both the respect and the fairness elements of neutrality. Nevertheless, one problem which these institutional arrangements cannot resolve by themselves remains. Those affected by an inconvenient implementation still have to take the initiative and register their complaint at one of these levels. While Pettit’s proposal for contestatory democracy is independent of his republicanism, it is easy to see how it would work particularly well upon republican foundations requiring and encouraging active citizen engagement. For a liberal theory where such engagement – as a particular conception of the good life – cannot be promoted in the same way, there thus might be once more the problem that some citizens do not feel called upon to even register their concern.

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There are some circumstances where this is less troubling than others. People might just not be motivated to concern themselves with political matters and prefer to deal with the consequences rather than to engage with the tiresome process of registering and advertising their proposals. In other circumstances people might feel discouraged from entering the political sphere because their experiences in society leads them to think that society is not open to proposals from ‘people like them’ or cares less for the interests of ‘people like them.’ While the first circumstance is in some sense regrettable but provides no reason for state action, the second set of circumstances might, as a matter of justice, require ensuring that such attitudes and their origins are addressed and the commitment to equal citizenship is confirmed towards those who might feel excluded as well as for those who are tempted to exclude others. In practice, a liberal state aiming to realise the fairness element of neutrality thus cannot guarantee fair implementations of neutrally justified regulations. Such a state can only ensure that, if citizens bothered to argue for or against particular implementations, they would be entitled to make the best possible argument for their case relying on the full potential of the particular comprehensive doctrines, and if other citizens were willing to listen and to be charitable to the concerns of others, they would be able to democratically choose implementations that better protect the interests of all citizens.

7.3 Liberal neutrality in the headscarf case With that framework in place, we can now think about the details of the headscarf case. To summarise: according to my account, state regulations in any particular case have to fulfil two independent requirements to be considered legitimate with regard to liberal neutrality: 1. They have to be justifiable with reference to neutral reasons which are a) reasonably acceptable to all citizens and b) referring to matters of justice weighty enough to overcome the right to be free from state involvement. 2. They have to be the result of a political process which protected the fair value of equal political rights for all citizens. The German headscarf case is challenging in both respects, since there are different neutrality related intuitions which are in opposition to each other. 1. As representatives of the neutral state, teachers ought to be neutral, they must not influence their pupils’ conceptions of religion, and the good life in general.

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This seems to recommend that teachers should refrain from dressing in a way that clearly identifies them with one particular conception of the good. 2. However, the state itself also ought to be neutral, it should employ and support teachers independent of their religious affiliation. The state should therefore allow teachers to dress according to their own choosing and in particular respect religious dress requirements. Opponents of the headscarf argue that, with regard to teachers, the first consideration dominates. The state might be obliged to allow headscarves in other contexts, but the requirements bearing on teachers are stricter and incompatible with wearing any sign of identification with one particular conception of the good life or religion or political ideology.34 Furthermore, becoming a teacher is a personal choice, and choosing this career involves accepting the requirements of the position. As representatives of the neutral state, teachers must not promote a particular conception of the good in the class. However, the question is whether wearing a headscarf by itself violates the requirement that teachers must not proselytise. The answer to this question has an empirical element and seems to depend on how pupils perceive their teachers’ visible religious commitment. If children conceive their teachers as an absolute authority – as primary school children are prone to do – then they might feel that they have to conform to what they think the teacher believes in. Muslims who do not wear the headscarf expressed the fear that their children would feel obliged to conform to the interpretation of Islam and the role of women they associate with a headscarf even when the teacher wearing it does not actively encourage this.35 The motivation to conform is even stronger if most of the other pupils, too, are wearing headscarves (as is the case in some schools in areas mainly populated by immigrants). Such peer pressure is problematic. However, peer pressure exists in many respects, and banning headscarves does not address the real issues here. Rather, it seems of the utmost importance to teach children about the fact of reasonable pluralism and the requirements of fair behaviour towards those we disagree with. Children in a liberal pluralistic society also need to learn the difference between the teacher as a person and the teacher in his or her official role. They need to learn to cope with the fact someone can be an authority in one respect despite the fact that we disagree with many things this

34 This worry is expressed in the dissenting opinion of the of the judges Jentsch, Di Fabio and Mellinghoff in the German Headscarf Case, 2 BvR 1436/02,77ff. 35 2 BvR 1436/02, 115. See also Ates (2007): Der Multikulti-Irrtum, 119–138.

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person – as an individual – stands for. The school more generally needs to convey that it is acceptable to have a different religious faith and overall conception of the good from the teacher (and anyone else!) and to teach children to behave respectfully and fairly even to those they disagree with. The judges in the German headscarf case argued that the school is the very place where children are to be taught how to be tolerant and how to handle cultural and religious diversity.36 Nonetheless, neutrality in the sense of the respect element requires that teachers are careful to avoid influencing their students in ways unrelated to their proper educational role. This means that there is a case for supporting a ban of party emblems, T-shirts with political slogans, and headscarves in the class room. The argument that children need to learn about pluralism does not undermine this argument, but it weakens its strength and suggests that – all things considered – there is a case for allowing headscarves nonetheless. One relevant consideration which tells against focusing on the negative freedom of pupils is the concern for equality among teachers. We do not want to exclude people from the teaching profession simply because of their religious faith and ethnic background. This concern for equality means that worries about the role of teachers as authorities cannot be the only relevant consideration. We also need to ensure that we are not placing an unreasonable burden on some by making teaching as a profession incompatible with certain religious commitments. Equally, that some are disadvantaged does not mean the ban is automatically illegitimate from the point of view of neutrality. Whether banning headscarves for teachers is a problematic disadvantage depends on the context. In the German case, there is a long tradition of Christian nuns and monks teaching in public schools in religious dress. As long as these teachers respect the requirement not to proselytise and not to advantage or disadvantage pupils on the basis of religious membership, this has been seen as – perhaps not ideal – but compatible with the overall neutrality in schools. Saying that – other things equal – teachers should be allowed to wear a Christian habit but not a Muslim headscarf obviously breaches the requirement of equal concern.37 The legitimate options are thus either banning all or allowing all symbols relating to permissible conceptions of the good. From the point of view of teachers’ freedom, allowing all is preferable. From the point of view of students’ freedom from being

36 See 2 BvR 1436/02, 65. 37 This presupposes that both the habit and the headscarf are symbols of permissible conceptions of the good. The concern for equality does not exclude the possibility that state officials are prohibited to display symbols that stand for conceptions which are blatantly incompatible with the understanding of citizens as free and equal persons. This would hold true for swastikas and possibly the Burka.

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unduly influenced, banning all seems preferable. From the point of equality, both options seem to be at first sight equivalent. However, given the context this assumption can be challenged. While banning all religious dress does not disadvantage Muslim headscarf wearers against nuns and monks, it does disadvantage them vis-à-vis believers whose religious symbols are more compatible with mainstream fashion. Furthermore, in the German context where Muslim immigrants often feel treated as second-class citizens as it is, banning all religious symbols now – in view of opposition to headscarves in schools and after allowing Christian symbols for a very long time – can be interpreted as a further indication that the German state is hostile towards Islam and does not respect the religious beliefs of immigrants and converts. The philosophical concept of neutrality by itself thus cannot provide a clear policy proposal in the question whether teachers should be allowed to wear a headscarf in school. However, understanding neutrality as a twofold concept explains why proponents as well as opponents of permitting teachers to wear headscarves can legitimately refer to neutrality. This suggests that, whatever option is adopted, it needs to be complemented with ensuring that the reasoning for why this proposal is chosen is publicly defended and some concern is shown to the element of neutrality which has been outweighed. When banning teachers from wearing headscarves, it must be made clear that this is not because headscarves are in themselves objectionable or because there is any intention of excluding Muslim women from the teaching profession. When allowing teachers to wear headscarves, additional measures need to be taken to convey to the pupils that this does not mean that this is a requirement for every Muslim, or perhaps even for every decent, woman. However, while neutrality itself does not privilege either option over the other, the main motivation underlying neutrality – showing equal respect for people’s different permissible convictions and life choices – favours less restrictions rather than more and thus recommends allowing signs of religious commitment. Furthermore, this motivation – creating a climate of respect for diversity – also recommends that children learn to deal with reasonable pluralism. All things considered I therefore believe that the case for allowing headscarves is better supported by the liberal theories about neutrality than the case for strict laicism. Nonetheless, while I believe that there are good reasons to allow teachers to wear symbols of religious commitment in class, I also believe that the Constitutional Court was right to refer the decision back to the Länder parliaments. There, however, I believe things went wrong in many cases: legislation banning Muslim headscarves while allowing nuns’ habits show that the interests of Muslim citizens are still given less weight than those of Christian citizens. This is even the case when the differential treatment is justified with

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reference to the idea that what is allowed are symbols associated with traditions and institutions known to be supportive of the values of freedom and democracy and what is banned are symbols associated with traditions and groups hostile to those values. While such reasoning might be appropriate to justify banning swastikas as trade mark symbols of Fascism, it is inappropriate in the case of headscarves. While there are some interpretations of Islamism which are in direct opposition to liberal democratic values, there are plenty of other interpretations which are compatible or even supportive of these values. And while there are some interpretations of Christianity which underpin liberal democratic values, there also are others which are not. The headscarf is furthermore not merely a symbol for Islam and religious commitments but often also a political symbol of young Muslim women demanding recognition for their cultural difference. Some women wear the headscarf to show their commitment to the idea that they can be full and equal citizens despite their religious and cultural difference.38 The claim is that they are equal without being the same. In the German headscarf case, I believe the procedures of democratic decision making have failed to yield a just regulation. This is despite a wide public debate offering room for different majority as well as minority voices both within mainstream society and the Islamic community in Germany. While judicial review might lead to a revision of the most problematic regulations, this still shows one problem with the conception of liberal neutrality presented above: a state can only be neutral in the sense described if its citizens are willing to really respect each other as free and equal persons. This leads back to the question raised in the introduction if the liberal state can protect its own foundations and commitments. This is the question I wish to discuss in the concluding chapter below.

38 See Shadid/van Koningsveld (2005): Muslim Dress in Europe, 47f.

8 Conclusion 8.1 Summary of the argument The starting point for my defence of liberal neutrality was the Rawlsian understanding of society as a fair system of cooperation among citizens understood as free and equal. This theoretical framework includes the following claims: 1. Citizens are to be understood as free. In the Rawlsian understanding, citizens are free in three respects: a) Citizens see themselves and each other as beings who are in some degree independent of their current conceptions of the right and the good and able to adjust their conceptions to new experiences, circumstances, and considerations. b) They accept that this freedom comes at the price of taking responsibility for the outcomes of the decisions based on these commitments – even though these commitments are not entirely freely chosen. c) They are committed to the idea that the chooser – if not the choice itself – commands respect and that they ought to treat each other’s claims as prima facie worthy of consideration. 2. Citizens are to be understood as equals in the Rawlsian understanding insofar as they possess the two moral powers for the right and the good to the minimal necessary degree to be fully cooperating members of society understood as a fair system of cooperation. Their equality refers to their equal standing as citizens. Any conception of justice which would threaten or undermine this equal standing, for example, by discrimination regarding race, gender, or social background would not be anything, citizens understood as free and equal could reasonably agree to. Furthermore, understanding citizens as equal in this sense also motivates some positive provisions for ensuring that the equal standing of citizens is not undermined by other morally arbitrary factors like socio-economic difference. 3. Society is a system of cooperation: people develop and pursue their conceptions of the good life in the context of other people developing and pursuing their conceptions of the good life. They interact and cooperate with each other with the aim of fulfilling their own life dreams. Society understood this way does not have an extrinsic goal – it aims to ensure that people can pursue their permissible life-plans without constantly getting into each other’s way. 4. Society ought to be a fair system of cooperation. This means, first of all, that all cooperation respects the rights that citizens have in virtue of their status as free and equal members. It means furthermore that the surplus benefits and burdens from cooperation are to be distributed fairly.

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My argument for liberal neutrality rested on my understanding of what it means to treat citizens understood as free and equal respectfully. Consequently my understanding of neutrality includes a double commitment to respect and fairness. The respect element of neutrality claims that there are some matters that simply are not the business of the state. It argues that all state action needs to be justified on the basis of reasons citizens can be expected to reasonably agree on. Moreover, citizens understood as free and equal have a right to be left alone from state involvement (following from their right to the social bases of self-respect which are threatened by paternalism), and this right can only be outweighed by other rights such as those necessary to ensuring fair terms of cooperation. The fairness element of neutrality claims that treating citizens equipped with the two moral powers for the right and the good as equals requires not only leaving them ample room to live the way they choose; it also means that they are entitled to full and equal political rights. The state is furthermore obliged to attempt to ensure that these formally equal political rights also have fair value. Obstacles to the equal standing of citizens in the political sphere – be they socio-economic or cultural differences – ought to be addressed. Implementing liberal neutrality in this two-fold understanding thus requires some theoretical thought as to which rights citizens can be expected to reasonably agree on as suitable aims of state legislation. However, given the importance of political rights and liberties in the understanding of citizens as free and equal, implementing liberal neutrality also needs to leave ample room for democratic decision making. This room is given by the indeterminateness of theories of justice: there is room for disagreement over which rights and duties fall under the sphere of political justice. Given that principles of justice are no more epistemically uncontroversial than principles of the good life, there needs to be public deliberation as to which rights and duties citizens consider to be reasonably acceptable to all fellow citizens. There is even more room for public deliberation on how to understand and weigh different rights against each other. And finally, there is plenty of room for deliberating on how any principle of justice is best realised in practice in any given situation. Given that there is much room for democratic decision-making, there is also the danger that these decisions end up being unduly biased in favour of the interests of the majority. Any democratic decision-making is likely to give greater weight to the voices of the majority over the minority: that is the nature of democracy, and that in itself is not morally troubling. This imbalance, however, becomes troubling when it is the result of a political process where the political rights of minority members had less than fair value. Rawls introduces the idea of the fair value of formally equal political rights in his discussion of how socioeconomic differences bear the danger of distorting the political process. There is

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good reason to assume that cultural difference, too, can undermine the fair value of political rights. Apart from the obvious case where the majority is prejudiced against the minority and for that reason alone not interested in hearing and accommodating their interests, there are also more subtle forms of disadvantage in the political process. There are culturally different ways of thinking and presenting political claims, and societies tend to consider some as appropriate and others as less so. In this evaluation they do not always consider that unusual styles of thinking and arguing are not necessarily inferior. This bias has the result that some people are more encouraged than others to speak up, some are taken more seriously than others, and some claims will not get the attention their substantive content deserves. The fairness element of neutrality therefore requires institutional arrangements aiming to ensure that everyone gets a fair hearing. This requires, first of all, that the fact of pluralism within society is accepted and discussed and that all citizens are aware that many of their intuitions are culturally shaped and ought to be critically examined before being used as a standard all citizens can be expected to reasonably agree on. Implementing the respect element of neutrality furthermore requires institutional provisions like established procedures for minority consultations or procedures of contestatory democracy in Philippe Pettit’s sense. Legislation must not only be discussed openly before passing, but there also have to be provisions for challenging any regulation that turns out in retrospect to have adverse effects on the equal standing of citizens. Finally, realizing liberal neutrality with regard to its fairness element requires citizens to be tolerant. It requires them to respect each other as free and equal members of society. While they do not actually have to approve of each other’s life choices, they must be willing to consider the claims and interests of others as worth taking into consideration in shaping the rules and regulations defining their society.

8.2 The three challenges of pluralism In the introduction I presented three challenges posed by the pluralism normal to modern democratic societies: 1. How is it possible to justify political action towards citizens with different conceptions of the right and the good? 2. How can the state treat its citizens as equals despite their cultural differences? In particular, how is it possible to ensure that cultural difference does not translate into political disadvantages for members of minorities?

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3. What does it take to establish and maintain a political culture which ensures the values underlying liberal democracy over time? My defence of liberal neutrality directly addresses the first two challenges. The respect element of fairness spells out how to justify political action towards citizens with different conceptions of the right and the good. This justification is limited by satisfying only those who already are committed to understanding society as a fair system of cooperation among citizens understood as free and equal. This is a serious limitation, but as argued before, I believe that, within the context of modern liberal democracies, it is an acceptable limitation. The fairness element of neutrality addresses the second challenge. It spells out which dangers cultural difference might pose for the equal standing of citizens and how the state can attempt to counter these tendencies. The third challenge is not yet addressed by my account of liberal democracy.

8.3 The third challenge Rawls assumes that citizens who live in a society that is properly described as a fair system of cooperation among citizens understood as free and equal will develop a sense of justice which allows them to be committed firmly to the ideas of mutual respect and toleration which underlie democracy. His prediction is that a functioning democracy will by itself secure a political culture which ensures the values underlying liberal democracy over time. Given that we are not currently living in a society which conforms to Rawls’s ideal, merely assuming that things will work out and that citizens will be sufficiently respectful towards each other’s conflicting conceptions of the good seems naïve. Whether the institutions suggested in Chapter 7 are able to realise liberal neutrality depends on the democratic decisions of citizens. Unless citizens are willing to treat each other as free and equal members of society understood as a fair system of cooperation, liberal neutrality cannot be realised, and the equal standing of minority members is in danger. Given that our experience shows that some of our fellow citizens lack the commitment to see at least some others as equal members of their society, the question remains whether there is anything the state could and should do to actively promote the value commitments relating to the understanding of citizens as free and equal. This is the challenge that proponents of a liberal Leitkultur like Bassan Tibi and Julian Nida-Rümelin aimed to address. The claim is that a tolerant ethos and the commitment to treating each other as free and equal members of society need to be part of a social practice rather than merely a commitment to abstract

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constitutional principles. Tibi invoked the idea of a Leitkultur to find a common basis for all members of society, a set of commitments that transcends cultural or ethnic communities and overcomes the fragmentation of society into a set of ‘parallel societies.’ The commitment to a core set of values also aims at a legitimate basis to define limits of multicultural self-management and toleration and thus for not only banning practices like forced marriage or female circumcision but also more subtle forms of discrimination and gender bias within groups which are not covered by criminal law. According to Tibi immigrants as well as all other citizens should be encouraged to respect the spirit of the law rather than merely abide by its letter. Since the state cannot legitimately prescribe any cultural practice, it should – according to the Leitkultur arguments – at the very least support those social institutions, which inspire the relevant ethos in their members. This support includes financial support mostly in the form of tax exemptions but also special publicity for their claims and a practice of consultation regarding legislation bearing on questions these institutions are particularly concerned with. This is, as described in the introduction, very much the practice and standing of the established Christian Churches in Germany. In postwar Germany, in response to the atrocities and horrors inspired by man-made secular ideologies like fascism and communism, the reference to God was seen as a protection against human hubris, and the Churches were seen as guarantors of truly humanitarian values. Given the rather questionable human rights record of the Christian churches, one could easily argue that what is problematic about state support for institutions aiming to embed an ethos of tolerance in a social practice is the choice of these particular institutions. That is, in fact, what Tibi does: he promotes the idea of an European Leitkultur inspired by the values of the enlightenment and argues for supporting institutions living these ideals. Nonetheless, there is a deeper problem with this approach: outsourcing the protection of political values to institutions like the established Christian churches – or the Humanist Union – is not only a somewhat risky strategy but also undermines the democratic ideal of equal citizenship. As argued above, even non-intrusive and benevolent involvement in people’s conceptions of the good is incompatible with treating them as free and equal citizens. Citizens cannot be expected to reasonably agree to support – by their shared political institutions and tax money – a worldview they do not share for the sake of its possible side effects in terms of a societal ethos of toleration. Citizens belonging to other traditions and beliefs would indirectly become second class citizens: while they have formally equal political rights, they are not considered model citizens unless they belong to a particular kind of cultural institutions supporting these values. Furthermore, there is an acute danger that too strong an

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emphasis on one particular history of thought – no matter how rational and reasonable – might lead not only to disregard but also to contempt against different ways of life and thus undermines the equal standing of citizens as well as the fair value of their equal political rights. One could claim that there is no more reason to reject Tibi’s Leitkultur response to the three challenges as there is to reject my Rawlsian proposal. Either proposal manages to address two of the three challenges but fails with one. However, the arguments in Chapter 6 show that the second challenge is more important than the third, since the equal standing of citizens is one of the social bases of self-respect, and self-respect is of fundamental importance for the understanding of citizens as free and equal beings. While we need a political culture that supports the ideals underlying liberal democracy over time, we first need institutions firmly respecting these ideals. Furthermore, while we have not yet realised the status of a well-ordered society in Rawls’s sense, a democratic practise attempting to include the institutional arrangements proposed in Chapter 7 is a social practise which might help to promo the values underlying the idea of society as a fair system of cooperation among citizens understood as free and equal. In Chapter 5 I claimed that the state must not get involved in questions of the good life because it cannot help making a big deal about whatever it promotes. While, as I argued above, it is disrespectful to make a big deal concerning conceptions of the good, it is appropriate to make a big deal of those values underlying the idea of liberal democracy. Shedding public doubt on people’s ability to make good choices for their own lives is detrimental to self-respect, promoting the understanding of citizens as free and equal, on the other hand, reaffirms the social bases of selfrespect. That is, even if the institutions outlined in Chapter 7 do not immediately do away with cultural bias, they can be seen as elements of symbolic politics which reaffirm the right of minorities to speak out as equals. In the end I thus embrace Rawls’s hopeful outlook that just institutions are able to create and recreate the necessary allegiance – even when they are not fully realised yet.

9 Bibliography Ackerman, Bruce (1980): Social Justice in the Liberal State. New Haven, CT: Yale University Press. Adorno, Theodor W., and Horkheimer, Max (1969): Dialektik der Aufklärung: philosophische Fragmente. Frankfurt am Main: Fischer. Anderson, Scott (2006): “Coercion”. In: Zalta, Edward N. (ed.) The Stanford Encyclopedia of Philosophy (Spring 2006 Edition), http://plato.stanford.edu/archives/spr2006/entries/coercion/. Arneson, Richard (1990): “Neutrality and Utility”. In: Canadian Journal of Philosophy, vol. 20, no. 2, 215–240. Ates, Seyran (2007): Der Multikulti-Irrtum. Berlin: Ullstein. Bader, Veit (1999): “Religious Pluralism: Secularism or Priority for Democracy?”. In: Political Theory, vol. 27, no. 5, 597–633. Barry, Brian, and Matravers, Matt (1998, 2004): “Justice”. In: Craig, Edward (ed.) The Routledge Encyclopedia of Philosophy (online edition). London: Routledge, http://www.rep.routledge.com/article/S032. Bell, Daniel (1993): Communitarianism and Its Critics. Oxford: Oxford University Press. Benhabib, Seyla (1996): Democracy and Difference. Princeton, NJ: Princeton University Press. Bielefeldt, Heiner (2003): Muslime im säkularen Rechtsstaat. Integrationschancen durch Religionsfreiheit. Bielefeld: transcript Verlag. Böckenförde, Ernst-Wolfgang (1976): Staat, Gesellschaft, Freiheit. Frankfurt am Main: Suhrkamp Verlag. Böckenförde, Ernst-Wolfgang (1991): State, Society and Liberty. Translated by J.A. Underwood. New York/Oxford: Berg. Brandt, Peter (2011): “Demokratisch, patriotisch, kulturell verankert”. In: Forschung & Lehre, vol. 10/11, 754–755. Bundesamt für Migration und Flüchtlinge, BAMF, (2012): “Deutsche Islam Konferenz.” http://www.deutsche-islam-konferenz.de abgerufen am 02.02.2012. Carens, Joseph H. (2000): Culture, Citizenship, and Community. Oxford: Oxford University Press. Carter, Ian (2011): “Respect and the Basis of Equality”. In: Ethics, vol. 121, no. 3, 538–571. Christiano, Thomas (1996): The Rule of the Many: Fundamental Issues in Democractic Theory. Boulder, CO: Westview Press. Christiano, Thomas (2004): “The Authority of Democracy”. In: Journal of Political Philosophy, vol. 12, no. 3, 266–290. Christiano, Thomas (ed.) (2003): Philosophy and Democracy: an Anthology. Oxford: Oxford University Press. Clayton, Matthew (2006): Justice and Legitimacy in Upbringing. Oxford: Oxford University Press. Daimagüler, Mehmet Gürcan (2011): Kein schönes Land in dieser Zeit: das Märchen von der gescheiterten Integration. Gütersloh: Gütersloher Verlagshaus. Daniels, Norman (1979): “Wide Reflective Equilibrium and Theory Acceptance in Ethics”. In: The Journal of Philosophy, vol. 76, no. 5, 256–282. Darwall, Stephen L. (1977): “Two Kinds of Respect”. In: Ethics, vol. 88, no. 1, 36–49. De Marneffe, Peter (1990): “Liberalism, Liberty, and Neutrality”. In: Philosophy & Public Affairs, vol. 19, no. 3, 253–274.

Bibliography

173

Dreben, Burton (2003): “On Rawls and Political Liberalism”. In: Freeman, Samuel (ed.) The Cambridge Companion to Rawls. Cambridge: Cambridge University Press, 316–346. Durham, W. Cole (1996): “Perspectives on Religious Liberty: A Comparative Framework”. In: Van der Vyver, Johan D./Witte, Jr, John. (ed.) Religious Human Rights in Global Perspective. The Hague/Boston/London: Kluwer Law International, 1–44. Dworkin, Ronald (1977): Taking Rights Seriously. Cambridge, MA: Harvard University Press. Dworkin, Ronald (1981): “What is Equality? Part 1: Equality of Welfare”. In: Philosophy & Public Affairs, vol. 10, no. 3, 185–246. Dworkin, Ronald (1981): “What is Equality? Part 2: Equality of Resources”. In: Philosophy & Public Affairs, vol. 10, no. 4, 283–345. Dworkin, Ronald (1984): “Rights as Trumps”. In: Waldron, Jeremy (ed.) Theories of Rights. Oxford: Oxford University Press, 151–167. Dworkin, Ronald (1985): “Liberalism”. In: Dworkin, Ronald (ed.) A Matter of Principle. Oxford: Clarendon Press, 183–204. Dworkin, Ronald (1986): A Matter of Principle. New York: Oxford University Press. Dworkin, Ronald (1989): “Liberal Community”. In: California Law Review, vol. 77, no. 3, 479–504. Dworkin, Ronald (1990): “Foundations of Liberal Equality”. In: Peterson, Grethe B. (ed.) The Tanner Lectures on Human Values. Salt Lake City, UT: University of Utah Press, 1–119. Dworkin, Ronald (2000): Sovereign Virtue. The Theory and Practice of Equality. Cambridge, MA: Harvard University Press. Eisenberg, Avigail, and Spinner-Halev, Jeff (2005): Minorities within Minorities: Equality, Rights and Diversity. Cambridge: Cambridge University Press. Estlund, David (2002): Democracy. Oxford: Blackwell Publishers. Eyal, Nir (2005): “‘Perhaps the Most Important Primary Good’: Self-Respect and Rawls’s Principles of Justice”. In: Politics, Philosophy & Economy, vol. 4, no. 2, 195–219. Galeotti, Anna E. (2002): Toleration as Recognition. Cambridge: Cambridge University Press. Galeotti, Anna E. (1998): “Neutrality and Recognition”. In: Critical Review of International Social and Political Philosophy, vol. 1, no. 3, 37–53. Galston, William A. (1991): Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State. Cambridge: Cambridge University Press. Gardner, Peter (1998): “Neutrality in Education”. In: Goodin, Robert E./Reeve, Andrew (ed.) Liberal Neutrality. London/New York: Routledge, 105–129. Gaus, Gerald F. (2003): “Liberal Neutrality: A Radical and Compelling Principle”. In: Klosko, George/Wall, Steven (ed.) Perfectionism and Neutrality. Lanham, MD: Rowman & Littlefield, 137–165. Gensicke, Thomas (2005): “Welche Werte braucht die Gesellschaft.” Goethe Institut, Online Redaktion, www.goethe.de/ges/pok/dos/dos/wert/de849169.htm abgerufen am 28.06.2005. Gerhards, Jürgen (2004): “Europäische Werte – Passt die Türkei kulturell zur EU?”. In: Aus Politik und Zeitgeschichte, no. B 38, 14–20. Goerlich, Helmut (1999): “Distanz und Neutralität im Lehrberuf – zum Kopftuch und anderen religiösen Symbolen”. In: Neue Juristische Wochenschrift, vol. Heft 40, 2929–2933. Goodin, Robert E., and Reeve, Andrew (1998): “Do Neutral Institutions Add Up to a Neutral State”. In: Goodin, Robert E./Reeve, Andrew (ed.) Liberal Neutrality. London/New York: Routledge, 193–210. Gould, Carol C. (1996): “Diversity and Democracy: Representing Differences”. In: Benhabib, Seyla (ed.) Democracy and Difference. Princeton, NJ: Princeton University Press, 171–185.

174

Bibliography

Gutmann, Amy (ed.) (1994): Multiculturalism. Princeton, NJ: Princeton University Press. Habermas, Jürgen (2005): “Vorpolitische Grundlagen des demokratischen Rechtsstaates”. In: Habermas, Jürgen (ed.) Zwischen Naturalismus und Religion. Philosophische Aufsätze. Frankfurt am Main: Suhrkamp Verlag, 106–118. Hayward, Tim (2005): Constitutional Environmental Rights. Oxford: Oxford University Press. Hegel, Georg Wilhelm Friedrich (1991 [1830]): Enzyklopädie der philosophischen Wissenschaften im Grundrisse. Edited by Nicolin, Friedhelm/Pöggeler, Otto. Hamburg: Felix Meiner Verlag. Hildebrandt, Uta (2000): Das Grundrecht auf Religionsunterricht: Eine Untersuchung zum subjektiven Rechtsgehalt des Art. 7 ABS. 3 GG. Tübingen: Mohr Siebeck. Hofstede, Geert (2001): Culture’s Consequences: comparing values, behaviors, institutions and organizations across nations 2nd ed. Thousand Oaks/London/New Dehli: Sage Publications. Humboldt, Wilhelm von (1854): The Sphere and Duties of Government. Translated by Joseph Jr. Coulthard. London: John Chapman. Isensee, Josef, and Kirchhof, Paul (1992): Handbuch des Staatsrechts. Heidelberg: CF Muller Juristischer Verlag. Jones, Peter (1989): “The Ideal of the Neutral State”. In: Goodin, Robert E./Reeve, Andrew (ed.) Liberal Neutrality. London/New York: Routledge, 9–38. Jones, Peter (1994): Rights. Edited by Jones, Peter/Weale, Albert, Issues in Political Theoriy. Basingstroke/Hampshire: Palgrave. Joppke, Christian (2007): “State Neutrality and Islamic Headscarf Laws in France and Germany”. In: Theory and Society, vol. 36, no. 4, 313–342. Kant, Immanuel (1986 [1797]): Metaphysiche Anfangsgründe der Rechtslehre – Metaphysik der Sitten Erster Teil. Edited by Bernd Ludwig. Hamburg: Felix Meiner Verlag. Kelly, Paul J. (2002): Multiculturalism Reconsidered. Cambridge: Polity Press. Kymlicka, Will (1989): “Liberal Individualism and Liberal Neutrality”. In: Ethics, vol. 99, no. 4, 883–905. Kymlicka, Will (1989): Liberalism, Community, and Culture. Oxford: Oxford University Press. Kymlicka, Will (1992): “Two Models of Pluralism and Tolerance”. In: Analyse & Kritik, vol. 14, no. 1, 33–56. Kymlicka, Will (1996): “Two Models of Pluralism and Tolerance”. In: Heyd, David (ed.) Toleration. An Elusive Virtue. Princeton, NJ: Princeton University Press, 81–105. Lachman, Günther (2006): Tödliche Toleranz. München: Piper. Lammert, Norbert (ed.) (2006): Verfassung – Patriotismus – Leitkultur. Bonn: Bundeszentrale für politische Bildung. Larmore, Charles (1987): Patterns of Moral Complexity. Cambridge: Cambridge University Press. Larmore, Charles (1990): “Political Liberalism”. In: Political Theory, vol. 18, no. 3, 339–360. Larmore, Charles (1998): “Right and Good”. In: Craig, Edward (ed.) The Routledge Encyclopedia of Philosophy (online edition). London: Routledge, http://www.rep.routledge.com/arti1cle/L087. Limbach, Jutta (2005): “Making Multiculturalism Work.” http://www.signandsight.com/features/313.thm,17 July 2005. Locke, John (1990 [1689]): A Letter Concerning Toleration. New York: Prometheus Books. Luft, Stefan (2006): Abschied von Multikulti: Wege aus der Integrationskrise. Gräfelfing: Resch. Mackie, J. L. (1984): “Can there be a right-based moral theory?”. In: Waldron, Jeremy (ed.) Theories of Rights. Oxford: Oxford University Press, 168–181.

Bibliography

175

McIntyre, Alasdair (1981): After Virtue. A Study in Moral Theory. London: Duckworth. McKinnon, Catriona (2006): Toleration: A Critical Introduction. Oxford: Routledge. McKinnon, Catriona (2007): “Democracy, Equality and Toleration”. In: The Journal of Ethics, vol. 11, 125–146. Meulemann, Heiner (2002): “Werte und Wertwandel im vereinigten Deutschland”. In: Aus Politik und Zeitgeschichte, vol. B 37–38, 13–22. Modood, Tariq (1998): “Multiculturalism, Secularism and the State”. In: Critical Review of International Social and Political Philosophy (CRISPP), vol. 1, no. 3, 79–97. Moller Okin, Susan (1989): Justice, Gender, and the Family. New York: Basic Books. Montefiore, Alan (1975): Neutrality and Impartiality. Cambridge: Cambridge University Press. Mulhall, Stephen, and Swift, Adam (1996): Liberals and Communitarians. 2nd ed. Oxford: Blackwell. Nagel, Thomas (1987): “Moral Conflict and Political Legitimacy”. In: Philosophy & Public Affairs, vol. 16, no. 3, 215–240. Nagel, Thomas (1991): Equality and Partiality. Oxford: Oxford University Press. Nida-Rümelin, Julian (2006): Humanismus als Leitkultur. München: C.H. Beck. Nozick, Robert (1974): Anarchy, State, and Utopia. New York: Basic Books. Parekh, Bhikhu C. (2000): Rethinking Multiculturalism: Cultural Diversity and Political Theory. Cambridge, MA: Harvard University Press. Parfit, Derek (1997): “Equality and Priority”. In: Ratio, vol. 10, no. 3, 202–221. Patten, Alan (forthcoming): “Liberal Neutrality: A Reinterpretation and Defense”. In: Journal of Political Philosophy. Pettit, Philip (2000): “Democracy, Electoral and Contestatory“. In: Shapiro, Ian/Macedo, Stephen (ed.) Designing Democratic. Institutions (Nomos XLII) New York/London: New York University Press, 105–144. Phillips, Anne (1996): “Dealing with Difference: A Politics of Ideas, or A Politics of Presence?”. In: Benhabib, Seyla (ed.) Democracy and Difference. Princeton, NJ: Princeton University Press, 139–154. Quinn, Warren (1993): Morality and Action. Cambridge: Cambridge University Press. Quong, Jonathan (2011): Liberalism without Perfection. Oxford: Oxford University Press. Rawls, John (1971): A Theory of Justice. Cambridge, MA: Harvard University Press. Rawls, John (1975): “Fairness to Goodness”. In: The Philosophical Review, vol. 84, no. 4, 536–554. Rawls, John (1980): “Kantian Constructivism in Moral Theory”. In: The Journal of Philosophy, vol. 77, no. 9, 515–572. Rawls, John (1996): Political Liberalism. New York: Columbia University Press. Rawls, John (1999): A Theory of Justice. rev. ed. Cambridge, MA: Harvard University Press. Raz, Joseph (1984): “Right-based Moralities”. In: Waldron, Jeremy (ed.) Theories of Rights. Oxford: Oxford University Press, 182–200. Raz, Joseph (1986): The Morality of Freedom. Oxford: Clarendon Press. Ripstein, Arthur (1992): “Liberal Justification and the Limits of Neutrality”. In: Analyse & Kritik, vol. 14, no. 1, 3–17. Ross, W. D. (2002): The Right and the Good. new ed.: Clarendon Press. Rousseau, Jean-Jacques (1968 [1762]): The Social Contract. Translated by Maurice Cranston. London: Penguin Books. Sandel, Michael J. (1982): Liberalism and the Limits of Justice. Cambridge: Cambridge University Press.

176

Bibliography

Scanlon, T.M. (1984): “Rights, Goals, and Fairness”. In: Waldron, Jeremy (ed.) Theories of Rights. Oxford: Oxford University Press, 136–152. Scanlon, T.M. (2003): “Rawls on Justification”. In: Freeman, Samuel (ed.) The Cambridge Companion to Rawls. Cambridge: Cambridge University Press, 139–167. Schmidt-Salonom, Michael (2006): “Leitkultur, Humanismus und Aufklärung.” http://www.politik-poker.de/leitkultur-humanismus-und-aufklaerung.php, abgerufen am 18.01.2006. Schmidtz, David (2006): Elements of Justice. Cambridge: Cambridge University Press. Shadid, Wasif, and van Koningsveld, P. Sjoerd (2005): “Muslim Dress in Europe: Debates on the Headscarf”. In: Journal of Islamic Studies, vol. 16, no. 1, 35–61. Sher, George (1996): Beyond Neutrality. Cambridge: Cambridge University Press. Steiger, Heinhard (2004): “Der Streit um das Kopftuch – Plädoyer für eine aktive Neutralität”. In: MenschenRechtsMagazin, vol. 9, no. 2, 115–128. Steiner, Hillel (1994): An Essay on Rights. Oxford: Blackwell. Tal, Uriel (1975): Christians and Jews in the Second Reich. Ithaca, NY: Cornell University Press. Tibi, Bassam (1997): Der wahre Islam. Der Islam von Mohammed bis zur Gegenwart. 2nd ed. München: Piper. Tibi, Bassam (1998): Europa ohne Identität?: Die Krise der multikulturellen Gesellschaft. München: Bertelsmann. Tibi, Bassam (2001): “Leitkultur als Wertekonsens”. In: Aus Politik und Zeitgeschichte, no. B1–2. Waldron, Jeremy (1989): “Legislation and Moral Neutrality”. In: Goodin, Robert E./Reeve, Andrew (ed.) Liberal Neutrality London/New York: Routledge, 61–83. Wall, Steven (1998): Liberalism, Perfectionism and Restraint. Cambridge: Cambridge University Press. Walzer, Michael (1997): On Toleration. New Haven, CT: Yale University Press. Walzer, Michael (2007): Thinking Politically. New Haven, CT/London: Yale University Press. Weinstein, Jack Russel (2004): “Neutrality, Pluralism, and Education: Civic Education as Learing about the Other”. In: Studies in Philosophy and Education, vol. 23, no. 4, 235–263. White, Stuart (2007): “Religious Exemptionism in a Society of Equals”. At Ninth Annual Graduate Conference in Political Theory, University of Warwick. Wikipedia (2008): “Böckenförde-Diktum.” http://de.wikipedia.org/wiki/B%C3%B6ckenf%C3%B6rde-Diktum, abgerufen am 03.04.2008. Wikipedia (2008): “Leitkultur.” http://en.wikipedia.org/wiki/Leitkultur, abgerufen am 02.04.2008. Young, Iris Marion (1990): Justice and the Politics of Difference. Princeton, NJ: Princeton University Press. Young, Iris Marion (1996): “Communication and the Other: Beyond Deliberative Democracy”. In: Benhabib, Seyla (ed.) Democracy and Difference. Princeton, NJ: Princeton University Press, 120–136. Young, Iris Marion (2000): Inclusion and Democracy. Oxford: Oxford University Press. Young, Iris Marion (2002): “Difference as a Resource for Democratic Communication”. In: Estlund, David (ed.) Democracy. Oxford: Blackwell Publishers, 213–233.

Index accomodating interests 3–8, 14 fn. 10, 30, 31, 38, 77, 115, 124 f., 131, 139, 144, 157, 159, 168 Ackerman, Bruce 17 fn. 18, 22 affirmative action 155 agency 47, 48, 107, 109, 118, 119, 121 anti-perfectionism 40, 41 fn.71 Arneson, Richard 21 fn.31 assimilation 4, 128 authority figures 12, 18, 35, 37, 55, 102 fn. 32, 141, 142, 145, 150, 162 autonomy as capacity 88, 103 as liberal value, see also Humboldt 57, 72, 78, 88 autonomy, as right (Dworkin) 56 respect for 88, 93–96, 103 Bader, Veit 31–32, 130, 133–135 bias cultural 129, 133, 171 dealing with 34–35 def. 24 gender 4, 129, 170 indirect 144 systematic 148 Bielefeldt, Heiner 30, 32 Böckenförde, Ernst-Wolfgang 6–7, 9 capacity for a conception of the good def. 68, 114, 126 developing and exercising 106, 134 respecting 110, 121–123, 125, 134 capacity for a sense of justice def. 68, 114 developing and exercising 106 respecting 110, 117–121, 136 capacity for autonomy 88, 103 Carter, Ian 67 citizens as equal 74–80, 112–116, 150 as equals 33, 36–41, 112, 116–117, 125, 142–145, 148, 155

as equipped with the two moral powers 67–69 as free 69–74, 88, 92 f., 140–142 as free and equal 10, 24, 26, 64 f., 69–82, 104, 110 as fully cooperating members of society 24 f., 41, 74–80, 105 f., 116 f., 119 f., 176, 169 equal standing of 2, 27, 31 fn. 54, 127, 131–134, 149–151, 156, 157 Clayton, Matthew 61 fn. 39 coercion 41, 85–11 communitarianism 71 conception thin political 62 f., 64, 80–82 of justice, see justice, conceptions of of the good (life) 2, 15, 39, 42, 71, 73, 98, 114 political vs. comprehensive 26, 59–62 thin vs. thick 49 f., 53–56, 58 cultural differences 126 culture as social practise 6 f., 126 political 2, 11, 56, 60, 65, 66 fn. 6, 81, 169 Darwall, Stehpen 105 De Marneffe, Peter 29, 103 deliberation 129, 143, 159 f., 167 democracy 2, 32, 67, 72 f., 81 f., 119, 167 communicative 129, 133 contestatory 157–161, 168 deliberative 129, 159 democratic procedures 134, 149 democratic values 2, 7 fn. 18, difference sensitivity 31, 133 cultural 2 f., 11, 126–130, 131–133, 138, 145, 150 f., 155–157, 165, 168 f. socio-economic 127, 138, 143, 148, 149 f., 166 f. difference blindness 31, 133 disadvantage 2, 21, 24, 36, 38, 108, 110, 113, 124 fn. 14, 125, 127 f., 130,

178

Index

132 f., 135, 144, 155–158, 163 f., 168 discrimination 4, 12–14, 23, 55, 128 fn. 18, 139, 141, 142–144, 148, 153, 155 f., 170 Durham, W. Cole 29 duties 28, 43, 45–48, 58 f., 61, 99 f., 102, 109, 110 fn. 50, 131, 143, 152 Dworkin, Ronald challenge model of ethics 56–58 conception of the good 114 neutrality 15 thin theory of the good 56–58 equal citizenship 8 f., 19, 32, 33, 156, 161 equal treatment 15 fn. 12, equality, see also citizens as equal, citizens as equals 112 f. of opportunity, see also neutrality as equality of opportunity 106, 150 as core liberal value 20 f., 26, 31 fn. 53, 31, fn. 54, 41, 69, 82 basis of 74–80 gender 19 political 128, 132, 149–150, 151, 155–157 fair value and socioeconomic differences 126, 138, 149 f. and cultural differences 126–131, 136 f. of formally equal political liberties 10 f., 27, 106, 118, 120 f., 138, 145, 149, 150–155, 167 f. freedom, see also liberty of religion 3, 12, 14, 30, 35, 130 f., 135 f., 141–143 presumption in favour of 103, 122 Galeotti, Anna E. 30 fn. 49, 31 fn. 52, 32 fn. 56, 124 fn. 14, 127 fn. 16, 128 fn. 18 Gaus, Gerald F. 12, 87 f., 95 good versus right 40, 43, 44–46, 50, 51, 53, 58 f., 61, 69 f., 111 good conceptions of, see conceptions of the good (life) thin theory of, see also Rawls,

thin theory of the good and Dworkin, thin theory of the good 49–53, 58 f., 62 f., 65, 66, group representation 130, 151–157, 160 Habermas, Jürgen 7 fn. 18 headscarves 12–14, 16 f., 18 f., 22 f., 33–39, 44, 139, 141 f., 143–145, 148, 159, 161–165 Humboldt, Wilhelm von 56 f., 59 identity 4, 6, 14, 19 fn. 25, 31 fn. 52, 70, 73, 128, 152 f., 154 immigration 1–8, 30, 37, 38, 79, 89, 131, 143 f., 162, 164, 170 impartiality 17, 24, 30, 33–36, 68 implementing neutrally justified regulations 23, 33, 94, 112, 123–125, 131–136, 145, 149, 150, 156, 159–161 inconvenience 17, 23 f., 28 f., 94, 125, 130, 132, 159 individualistic bias 130 insult 88, 97 integration 1–3, 30 Jones, Peter 44, 46 fn. 12, 48 f. Joppke, Christian 13 fn. 5, 14 fn. 8 und 10 justice, see also the right 19, 28, 43, 44–46 being a subject of 74–79 concept of 45, 167 conceptions of 26, 32, 41, 45, 60, 66, 72 f., 98, 118 f., 166 distributive 62 matters of 19, 28, 58, 60, 85, 94, 98, 102, 108, 123, 161 principles of 19, 21, 23, 27, 44 f., 49 f., 51 f., 59–61, 75, 81, 98, 102, 117 f., 138–141, 142 f., 146–148, 167 procedural 21, 29, 125 public conception of 68, 71, 72, 114, 118, 120 sense of, see capacity for a sense of justice theories of 45, 124 justifying coercion 85, 87 f., 89, 91–98, 99–111

Index

justifying neutrality 20, 29, 41, 42, 59, 62, 64 f., 82 f., 117, 123 justifying political action 2, 9, 22, 33, 134, 139, 146, 147, 168 f. justifying principles of justice 61 f., 81 justifying rights 47 f., 58, 109, 145 justifying (political) values 3, 6–9, 26, 32, 60 f.

179

McKinnon, Catriona 30 fn. 49, 148 fn. 15, 150 Montefiore, Alan 16 f., 35 moral agency 48, 88, 92 moral significance 125 Mulhall, Stephen 71 fn. 19, 81 fn. 38, 93 fn. 12 multiculturalism 1, 3 f., 33, 83, 126–132, 137, 170

Kymlicka, Will 20 f., 66 fn.6, 71 fn. 19, 72 laicism 12 fn. 5., 14 fn. 9, 38, 164 Larmore, Charles 21 fn. 31, 96 fn. 16 legitimacy 2, 4, 7, 23, 38, 40, 43, 44, 46, 49, 60, 62, 76 f., 79, 84–87, 93–98, 99, 102, 109 f., 119, 122, 147 f., 150, 158–160, 163, 164, 170 Leitkultur 2–9, 169–171 liberal anthropology 103 liberal democracy 1 f., 61, 72 f., 81 f., 91, 93 fn. 12, 149, 169–171 liberal values 20 f., 61, 78, 81 f., 88, 124, 139 liberalism as comprehensive doctrine 56, 73 f., 88, 121 critiques of 6, 32 fn. 56, 71, 127, 130 political 81, 89 safeguarding the foundations of 2–8, 161, 165, 169–171 liberties, basic 20, 27, 118–120, 122, 124 f., 136, 141 liberty importance of 20 f., 56, 102 f., 106, 118 f., 121, 122 individual 20 f., 106 legitimate restrictions 122 political 106, 118 f., 120, 125–129, 133, 136 f., 155 presumption in favour of 103, 122 religious, see also freedom of religion 29 limits of state action, see state, limits of action majority rule 134, 149 marginalisation 152, 155

neutrality as equality of impact 15–18, 35, 124 as equality of opportunity 15, 18–21, 27, 33, 124 of concern 30 fn. 51 of procedure 21 fn. 31 as a twofold concept 14, 36, 39–41, 164 as respectful non-identification 30 f., fairness element of 10, 14, 25–27, 32, 34, 36, 38 f., 41, 112, 114, 134, 138, 160 f., 168, 169 justifications of, see justifying neutrality justificatory 15 f., 21–25, 26 f., 28 f., 33, 123 f., 127, 130–132, 133, 136, 138, liberal 1 f., 15, 42, 44, 60, 64, 83, 96, 98, 107, 165, 169 open 14 fn. 10 procedural 149–161 relational 31–33, 133 respect element of 10, 25–27, 32–34, 36 f., 39 f., 111, 138–149, 160, 163 Nida-Rümelin, Julian 6 fn. 14, 169 Nozick, Robert 110 overlapping consensus 51, 61, 65, 80–82, 89 participation 67, 77, 112, 119–121, 123–135, 141, 143, 155 Patten, Alan 30 fn. 49 and 51 perfectionism 16, 28, 33, 42–44, 64, 78, 83, 85, 88, 95 f., 98, 103, 106, 118, 123 permissible conceptions, of the good 19, 122 person equipped with the two moral powers, see citizens equipped with the two moral powers moral 74–80

180

Index

political conception of 65, 70–74, 115, 145 reasonable 68, 81 Pettit, Philip 158–161, 168 pluralism challenges of 2, 8, 32, 168–171 circumstances of 6, 8, 12 f., 37, 124 fn. 14, 130, 145, 150, 163, 168 reasonable 37, 51fn. 21, 97, 117, 162, 164 power 33, 42 fn.3, 64, 66, 76, 78, 86 f., 89, 92, 96, 100, 102, 122, 129, 150, 155 powers, two moral, see capacity for a conception of the good and capacity for a sense of justice prejudice 128 fn. 18, 145, 168 primary goods 21, 51, 54, 56, 74, 104 f., 118, 124 fn. 13, 141 priority for basic liberties 118–120 public goods 111, 147 public reason 2, 28, 32, 93 f., 97 fn. 20, 98 Rawls, John on citizens as free and equal, see citizens as free, citizens as equal on comprehensive versus political conceptions, see conceptions, comprehensive versus political on fair value, see also fair value 27 on justice 45, 90, 91 on liberal legitimacy 26, 28 f., 49, 60 f., 93–98 on moral personhood, see person, moral on neutrality 12, 21 on political culture, see culture, political on primary goods, see primary goods on public reason, see public reason on rationality 54 f. on reflective equilibrium 52 f., 80 on reasonableness, see reasonbleness on self-respect 104–106 on society as a fair system of cooperation, see society as a fair system of cooperation on the basic structure 21, 26, 27, 61 fn. 39, 97, 117, 118, 122

on the burdens of judgement 96–98, 149 on the original position 50, 60, 61, 97 f., 117 f., 120 on the overlapping consensus 51, 65, 81, 89 on the political conception of the person, see person, political conception of on the right 26, see also right, the on the two moral powers, see capacity for a conception of the good and capacity for a sense of justice on thin versus thick conceptions of the good, see conceptions, thin versus thick principles of justice 21, 27, 118 thin theory of the good 53–56 Raz, Joseph 15 fn. 12, 17, 18 f., 21, 26 fn. 37, 40 f., 42, 43 fn.4, 47 fn. 13, 99 fn. 25, reasonable agreement 2, 32, 41, 61, 62, 79, 85, 91 f., 94 f., 95–98, 139–141, 142 f., 148, 166–168, 170 reasonable expectations 1, 20, 26, 71 reasonableness 61, 68, 81 reciprocity 68, 77 recognition 512 fn. 5, 30 fn. 49, 31 fn. 52, 105, 131, 165 reflective equilibrium, see Rawls, John representation 1, 130, 151–157 respect 66 fn. 6, 70, 88 appraisal 105 for autonomy 92 f., 95 f., 103 for the two moral powers 80, 88, 104, 106 f., 110, 116–123, 125, 134, 136 f. mutual 68, 169 recognition 105 right to be treated with 107 showing respect 11, 23, 30, 31 fn. 54, 33, 34, 36–38, 69, 80, 83, 92, 106 f., 138, 140, 162, 164 f., 167, 169 right capacity for, see capacity for a sense of justice matter of the, see matters of justice principles of, see justice, principles of vs. good, see good versus right

Index

right, the 26, 44, 58, 60, 62, 65 the to be left alone from state interference 102–104, 106, 108, 139, 167 the to do wrong 85, 88 f., 91, 107 rights of citizenship 3, 23, 70, 136, 143, 149 basic 3, 27, 28, 46, 48, 49, 70, 94, 106, 110, 118, 125, 141, 146 choice theories of 47, 100 f., 102 f., 107 contractual 46, 109 f. cultural 127 def. 49, 101 f., 108, 110 human 4, 9, 46 interests theories of 47, 99 f., 102, 107 minority 127, 132 moral 109 needs theories of 48, 102 political 10, 77, 85, 112, 121, 125, 128 fn. 18, 138, 145, 149 f., 151, 156, 167 f., 170 f. property 47, 100, 108–110 status theories of 48, 102 f. Ripstein, Arthur 97 Scanlon, T.M. 52, 102 scepticism 98 Schmidtz, David 45 secularism 4, 6–8, 12 fn. 5, 22, 30, 32, 130, 134 f., 170 self-determination 56, 102 fn. 32, 103, 121, 149 self-respect 54 fn. 26, 56 fn. 31, 104 f., 119, 128 importance of 104 f., 119 social bases of 104–106, 141 f., 171

181

Sher, George 26 fn. 37, 42 f., 95, 98 fn. 22 social justice 5, 148 society as a fair system of cooperation 64–67, 78–83, 138–140, 146–148, 171 stability 67, 109 state, separation of state and church 12 fn.5, state officials 13, 22, 33–39, 131, 142, 161 f., 167, 169 business of 10, 24, 52, 78 f., 84, 86, 89–91, 94, 102, 107, 123, 147, 161 limits of action 84, 95–99, 102–111, 158, 159 fn.33, 160 Steiner, Hillel 47, 100, 101 fn. 29, 146 fn. 12 Swift, Adam 71 fn. 19, 81 fn. 38, 93 fn. 12 taxation 14 fn. 9, 87, 89, 93, 102, 170 Tibi, Bassam 3–10, 169–171 toleration 3 f., 10, 19, 26 fn. 37, 30, 31 fn. 52, 37 fn. 63, 42–44, 66 fn. 6, 163, 168, 169 f. two moral powers as foundation of equality 74–80 as foundation of freedom 69–74 def., see also capacity for a conception of the good and capacity for a sense of justice 68 utilitarianism 49, 50, 78, 118 Waldron, Jeremy 17 fn. 18, 22 fn. 32, 42 fn. 1, Wall, Steven 98 fn. 23 Young, Iris Marion 127 fn. 16, 129 f., 133 f., 151–157, 160