Rawls and religion: the case for political liberalism 9780791450116, 9780791490464, 9780791450123

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Rawt_s AND RELIGION

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RAWLS AND RELIGION The Case for Political Liberalism

Daniel A. Dombrowski

STATE UNIVERSITY OF NEW YORK PRESS

Published by State University of New York Press, Albany © 2001 State University of New York All rights reserved

Printed in the United States of America No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher. For information, address State University of New York Press, 90 State Street, Suite 700, Albany, NY 12207

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Library of Congress Cataloging-in-Publication Data Dombrowski, Daniel A. Rawls and religion : the case for political liberalism / Daniel A. Dombrowski, p. cm. Includes bibliographical references and index. ISBN 0-7914-5011-2 (alk. paper) — ISBN 0-7914-5012-0 (pbk. : alk. paper)

1. Liberalism. 2. Rawls, John,1921— —Contributions in political science. 3. Religion and politics. I. Title. JC574.D63 2001

322'.1'092—dc21 00-046420 10987654321

CONTENTS

Introduction Vil PART ONE

THEORY

CHAPTER1. A Brief History 3

CHAPTER 2. ‘The Original Position 13 CHAPTER 3. The Reasonable and the Rational 31 CHAPTER 4. The Ancients and the Moderns 49

CHAPTER 5. ‘The Common Good 69

CHAPTER 6. Methodological Considerations 81 PART TWO

PRACTICE

CHAPTER 7. ‘Theory to Practice 101 CHAPTER 8. Partially Inclusive Public Reason 107

CHAPTER9. Race, Sex, and Abortion 121 CHAPTER 10. War, Disobedience, and Elections 135

Epilogue 157 Notes 161

CHAPTER 11. Animals and Marginal Cases 143

Index 189 Bibliography 181 Vv

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INTRODUCTION

Pars and religion are, as a recent president of the American Philosophical

Association has put it, a dangerous mixture; combining them, even in an academic context, is likely to generate more heat than light.* In the last few years, how-

ever, there has been a renewed interest in this topic that has been fueled by controversies regarding abortion, the phenomenon of fundamentalism as a growth industry, and other factors, including the perceived decline of secular culture. It is the thesis of the present book that these controversies, as well as the theoretical problems that underlie them, can be best sorted out and responded to through appeal to the thought of the greatest contemporary defender of liberalism, John Rawls. Despite the fact that Rawls is the most influential political philosopher in the twentieth century, his thoughts on religion have not been sufficiently studied or understood, most notably due to the assumption that he is more interested in topics other than the relationship between politics and religion. But this assumption is incorrect. I will show not only that Rawls is interested in the relationship between politics and religion, but that, as he sees things, the relationship between these two is at the core of the problem that liberalism has for centuries meant to solve. Further, I will show that Rawls’s interest in the relationship between politics and religion spans his career from: (1) essays written before 4 Theory of Justice— 1971 (hereafter: TJ); (2) to TJ itself; (3) to essays written between TJ and Political Liberalism—1993 (hereafter: PL); (4) to PL itself—which largely incorporates the insights found in essays written after TJ; (5) to work written after PL, including The Law of Peoples—2000 (hereafter: LP). My synoptic view of Rawls’s career requires some explanation. Perhaps the key question that has dominated Rawls scholarship since the publication of PL 1s the relationship between the early and late Rawls. Clearly there is a great deal of both continuity and discontinuity between TJ and PL. The major discontinuity is that his view in TJ was often—but not always—articulated in terms of what he

now calls a comprehensive doctrine; his stance is now articulated in the more modest terms of political liberalism. Vil

Vil Introduction But the overall thrust of my treatment of Rawls is based on continuity in his writings, which | emphasize for several reasons. I reached a defense of the continuity thesis only after having done something that I suspect few scholars have done: I reread TJ from cover to cover—a new copy without twenty-five years of marginalia—in light of PL. I was amazed at both (1) the degree to which TJ anticipates and, strange as this sounds, expands on ideas found in PL; and (2) the degree to which Rawls was already focused on the relationship between politics and religion in TJ, a focus that everyone who has read PL and LP has noticed in the latter works. The continuity thesis is enhanced when it is realized that the phrase “justice as fairness” (as well as the original position, the veil of ignorance, the priority of

the right to the good, and the two principles of justice) is retained in the later Rawls under the umbrella term political hiberalism, hence I will often switch back and forth without qualification between “justice as fairness” and “political liberalism.” Of course I will also indicate, when appropriate, where the views found in PL (and LP) deviate from those in TJ. For the most part, however, PL builds on or clarifies TJ, in my view. Hence in almost every chapter I will cite both works. There are four notable discontinuities between TJ and PL: (1) in TJ there is no clear distinction, as there is in PL, between moral and political philosophy;

(2) thus there is no clear distinction in TJ, as there is in PL, between a moral (comprehensive) view of justice and a political conception of justice; (3) the idea of stability in TJ is especially problematic; and (4) Rawls admits in PL that he

had underestimated the depth of the problem in TJ of making his idea of a well-ordered society consistent. But these discontinuities between TJ and PL are still perfectly compatible with an overall continuity thesis. In fact, in order to even understand the nature and extent of the problems listed in the previous paragraph one needs to see them as arising from a point of view internal to justice as fairness as that concept is developed in doth TJ and PL. Rawls himself correctly speaks of a “unity” of both “spirit and content” to TJ and PL. That is, once the problems in the previous paragraph are addressed, the structure and content of TJ and PL are, as Rawls correctly sees things, “the same.” The ambiguities in TJ are largely cleared up by presenting from the outset justice as fairness as a political, rather than as a moral, conception. PL is like TJ in trying to offer an alternative to utilitarianism in terms of an attempt to carry to a higher order of abstraction the traditional doctrine of the social contract, which in PL Rawls gives a new name: overlapping consensus. (We

will see that the social contract as traditionally conceived is not to be elevated above utilitarianism or religious beliefs when they are parts of comprehensive doctrines in conflict with other comprehensive doctrines.) There is also continuity be-

tween IJ and PL on the topic of religion, which is discussed much more in TJ than commentators have noticed. And the emphasis in PL on the political impact of the Reformation makes explicit what was certainly implicit in TJ regarding the

Introduction 1X rise of liberalism and of toleration. Further, in PL Rawls is confident that by concentrating on a few classical problems surrounding religion we will be able to develop the intellectual tools necessary to deal with other contemporary problems concerning race, ethnicity, and gender. In effect, PL not only clears up the obscurities of TJ, it also paves the way for an adequate treatment of problems barely touched on in TJ, but in a fashion that renders explicit what was implicit in that great work.” The meaning of each technical term in Rawls, and the implications of these terms for issues concerning politics and religion, will become apparent at some point in the book, although many are used long before they are explicated, a procedure that will, at times, require some patience on the part of the reader. The term /iberalism itself 1s meant in a broad sense so as to include utilitarian varieties

as well as rights-oriented varieties, the latter including libertarian as well as Rawls’s own rights-oriented political liberalism. If I specifically intend Rawls’s own view I| will always qualify “liberalism” with “political” or “Rawlsian.” But I will

not be making a Rawlsian technical distinction between the words “concept” and “conception.” The chapters fall into two main groups. Chapters 1-6 deal largely with sheoretical issues concerning politics and religion. Here I will try to bring the full force of Rawlsian political theory to bear on the major theoretical issues in the subject matter in question. Several misconceptions of Rawls’s thought held by some religious believers will be dealt with explicitly (e.g., that Rawlsian liberalism is necessarily tied to individualism or egoism and that his political philosophy is at odds with the religious tradition associated with the common good). Along the way there will be some

surprises (e.g., that for Rawls himself the love that is prominent in religious ethics is seen as continuous with, but wider than, the sentiment of justice; and that the extreme nature of dominant end views, as in St. Ignatius of Loyola’s view of serving God, should strike even religious believers as irrational or mad). The theoretical chapters in Part I are meant to exhibit a certain reticulative wholeness. [ start in chapter 1 with a brief history of the problem that liberalism, in general, and Rawlsian liberalism, in particular, is meant to solve. This problem first surfaces, and paradigmatically surfaces, in the desire of religious believers from different confessions to find a fair decision-making procedure whereby they could live together in a just society. This chapter thematizes the reasonable differences that characterize the modern world. Mere pluralism is different from reasonable pluralism in that the former, but not the latter, is perfectly compatible with dogmatism if the plurality of religious groups that are different from one’s own are viewed as potential objects for persecution. Political differences can be resolved only by entering into something like the original position, which is discussed in chapter 2 along with the connection between the original position and religion. This chapter is also concerned with the objection that the abstractness of the original position replaces the priority of agape in Christianity, hence religious

xX Introduction believers who are Christian should be skeptical of the Rawlsian view. An adequate

response to this objection requires a consideration of the extent to which the Rawlsian view is a type of proceduralism and the extent to which it is compatible with substantive moral beliefs defended by religious ethicians. Chapter 3, however, deals explicitly with the substantive claims made in Rawls’s two principles of justice — the equality principle and the difference principle—and the relationship

between these two principles and the social ethics in the Abrahamic religions (Judaism, Christianity, and Islam). Crucial distinctions are made between the reasonable and the rational in Rawls, and between two different senses of reasonableness. These distinctions are needed both in order to understand the Rawlsian separation of the right and the good as well as to argue against the objection from some religious believers that Rawls’s view 1s individualistic or egoistic. Chapter 4 deals with the historical background to Rawls’s thought as it bears

on religion. I show how the Rawlsian opposition to egoism, little noticed by his critics who are religious ethicians, is largely connected to his Kantianism. But Rawls’s view is much more indebted to the Aristotelian tradition than many religious thinkers notice, especially those religious traditionalists who are sceptical as to whether the (Kantian) Enlightenment was a good thing. After having considered Rawls’s relationship to Aristotle and Kant, I will be in a position to examine the liberty of the ancients and that of the moderns in that Aristotle and Kant are quintessential examples of each of these periods. Once again, the point is to respond to religious traditionalists who show a preference for the liberty of the ancients. One of the clearest differences of opinion between political liberalism and ancient/modern views concerns the attitude we ought to have toward what we have inherited by nature or culture, hence | also deal with political liberalism’s approach to the natural lottery. Chapter 5 treats the Rawlsian view of the good and of the common good. We will see that in political liberalism those who are the losers in the natural lottery are protected and also that no obstacles are put in the path of those who desire to explicate and act on higher-order (supererogatory) moral and religious sentiments that serve to bind a community of persons together as long as such higher-order sentiments are not imposed on others through the political process. Chapter 6 deals with various methodological considerations. We will see that Rawlsian reflective equilibrium leaves room for distinctively religious beliefs based on faith or on religious intuitions. And overlapping consensus, which is crucial in Rawls’s later thought, allows citizens to invoke theological or metaphysical doctrine if they wish, although it is not necessary to do so to support the principle of a well-ordered society. The Rawlsian view is noncomprehensive liberalism, in contrast to comprehensive liberalism. The latter has often been seen, quite legitimately, as antireligious. The final methodological consideration deals with the Rawlsian publicity requirement, which stipulates that political principles be rejected that would “work” only if they were not publicly acknowl-

Introduction XI edged. Such publicity is both a necessary condition for the objectivity required in the original position and a sign of respect for other citizens, whatever their religious beliefs.

Part II, by way of partial contrast, deals with the practica/ ramifications of Rawlsian theory. The practical issues treated concern toleration of the intolerant —especially intolerant fundamentalists; race; sex; abortion; pacifism; the status of animals and marginal cases; and fair elections. The hope is that these chapters will rescue the work from irrelevance for those readers who are impatient with pure theory. We will see, however, that Rawls refuses to apologize for being an abstract theorizer when it is considered that the more severe our disagreements in politics,

the greater the need to attain an abstract point of view that will enable us to see how to adjudicate our differences. The book ends with an Epilogue, where Rawls’s achievement in political philosophy is put into historical perspective, largely with the aid of certain ideas from

Alfred North Whitehead, who, like Rawls, sees an understanding of the seventeenth century as crucial in the effort to get our bearings right today. Throughout the book I will take seriously Richard Rorty’s claim that for Rawls religious toleration is paradigmatic for a just democratic political outlook. The Rawlsian view is diametrically opposite that of Martin Heidegger, who thought that the scientific, cultural, religious, and political life of a society was the working out of a single set of philosophical ideas; all significant human activity was philosophy whether it knew it or not. Rawls, by way of contrast, would have us rest content im politics if Catholics, Mormons, and agnostics could articulate together the sensibility that enables us to be fair to people with whom we have little else in common philosophically speaking, rather than trying in vain to ground that sensibility on something more basic.” Rawls’s heightened interest in religion in PL is connected with nothing less than his desire to see constitutional democracy survive. In a 1998 interview in the liberal Catholic magazine Commonweal (which is anthologized in his Collected Papers’), Rawls indicates that even if many religious believers are only nominally so (over 90% in the United States claim to be religious believers of some sort), the political problems created by a clash of contrasting comprehensive doctrines would lead to disaster without something like political liberalism to ameliorate the disputes as they arise. We will see that politically liberal principles can fit in as parts of various comprehensive doctrines, whether religious or nonreligious, hence it is no more true to say that Rawlsian political philosophy leads to “secularism” than it is to say that it is a veiled argument for religious beliefs. That is, we will see that Rawls is not asking religious believers to renounce their most cherished beliefs. They can even cite the Bible in their political arguments if they wish, as long as they also offer public reasons for their views.’ By “public reasons” Rawls does not refer so much to the right answers to public questions, but rather to the right sorts of reasons, those that can be understood and

X11 Introduction assessed apart from any particular comprehensive doctrine, whether religious or nonreligious. Public reason refers to opinions that everyone might reasonably agree to, not to the fact that they necessarily agree. It should be emphasized that Rawls is interested in more than a mere modus vivendi that calls to a halt, for practical reasons, the clash of comprehensive religious (or philosophical) doctrines. A political life together is, from a theoretical point of view, itself a good thing as we search for a liberal version of the common good: the assurance that everyone is treated with justice. I think that it is fair to say that [am an admirer of Rawls’s thought, but it will become evident in the course of the book that my admiration is not necessarily synonymous with my agreement with him on some important issues. For example, Rawls trivializes the integrative function of religious belief in his nonetheless insightful comments on St. Ignatius of Loyola. But religious believers themselves (e.g., Franklin Gamwell), who rightly emphasize the integrative function of religious beliefs, nonetheless often misplace where this integration should occur if they think that all of society should be religiously integrated, as I will argue in the Epilogue. Or again, Rawls’s original position could be improved by a “revised orig-

inal position,” wherein a clear distinction is drawn between being a moral agent and being a moral patient. [his distinction, I will argue in chapter 11, enables one to improve on the inadequate treatment Rawls gives regarding both animals and marginal human beings.

PART ONE

THEORY

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CHAPTER ONE

A Brier History

TT" problem that political liberalism as a philosophical stance is meant to solve can be stated quite directly: How 1s it possible to have a just society over time composed of free and equal citizens who are divided, sometimes profoundly so, by incompatible comprehensive religious (or philosophical) doctrines that are nonetheless reasonable? As a result of the Enlightenment, one way of responding to this problem is to try to find a new comprehensive philosophical and secular doctrine that would provide a synoptic worldview to deal with all of life’s problems, that would be suitable to the modern world, and that would replace the supposedly outmoded faith of the Christian ages. But contemporary, Rawlsian political liberalism has no such comprehensive ambitions in that its aim is to adjudicate in a fair way disputes that arise among defenders of various comprehensive doctrines, whether religious or nonreligious. Pluralism—aindeed reasonable pluralism—is a given, and the intention is not to replace or even to abandon comprehensive religious (or philosophical) doctrines, but neither is it to provide these doctrines with what Rawls calls “a true foundation.”* Rather, the intention is to defend public reason-discourse in politics. If comprehensive religious (or philosophical) doctrines are to be justified or given foundations, it is on some nonpublic (not exactly private) basis, as we will see. Hence whatever ideas of the good are to be found in political liberalism have to be appropriately public. That is, the truth or falsity of these comprehensive, nonpublic, religious (or philosophical) doctrines is not a matter for political liberalism to decide. At the heart of this position is a distinction that originates in democratic political culture marked by reasonable pluralism, a distinction that creates problems quite different from those faced in the ancient world. In Socrates’ day there was only one Athenian religion, a civic religion with public social practices, as detailed by Walter Burkert.’ To be religious was to be a trustworthy member of society and vice versa. And to be a trustworthy member of society involved serving on juries and performing other duties associated with good citizenship.’ Rawls is on shaky ground when he claims, without argument, 3

4 A Brief History that Homer’s I/ad and Odyssey were not sacred texts (in what sense were they not sacred?—Plato was scandalized by Homer’s stories because they inaccurately portrayed the gods), that Greek religion was not dependent on priests (what of the priests and priestesses at the holiest place in ancient Greek religion, Delphi?), and that in Greek religion immortality did not play a central role (although not a neg-

ligible role, either, as in the Orphic cult, the Pythagoreans, and the Eleusinian mysteries). Although some of his comments on the particulars of ancient Greek religion are shaky, his main point is certainly on the mark: ancient Greek religion, in general, and Athenian religion, in particular, was a civic religion of the po/is that held something of a monopoly on religious sensibilities. There was no alternative idea of the highest good to the Homeric gods and goddesses (which shows that the Idad and Odyssey were, in fact, sacred texts). Further, for my purposes it is crucial to note that these gods and goddesses set the terms of politics. They were of noble birth; they explicitly sought honor, wealth, and prestige; and they, like human beings, were concerned for family and

friends. [he problems with which contemporary political liberalism are meant to handle, however, were only vaguely anticipated by the ancient thinkers when they partially rejected the Homeric worldview. In the early modern period, however, three major changes ushered in liberalism in an explicit way: (1) The Reformation in the sixteenth century fragmented the religious unity of the Middle Ages, a unity that was just as strong as that in the ancient polis. ‘This religious pluralism eventually fostered pluralism of other kinds, which became a permanent feature by the eighteenth century. (2) The development of the modern state with its central administration had to negotiate its way between the aris-

tocracy and the rising middle class. And (3), the rise of modern science in the seventeenth century brought about an inquisitiveness with respect to nature that required freedom of inquiry. On Rawls’s view, medieval Christianity had five characteristics that distinguished it from ancient civic religion, characteristics that were called into question in the modern period due to the three aforementioned changes that ushered in liberalism: (1) medieval Christianity tended to be authoritarian; (2) because it was a religion of salvation, medieval Christianity tended to insist on true belief as the Catholic Church taught it; (3) as a result, it was a doctrinal religion with a creed that was to be believed; (4) it was a religion with the authority to dispense grace as a means to salvation; and (5) it was an expansionist religion of conversion. When this muscular religion divided, it gave birth to a rival authoritative and salvationist

religion. Luther and Calvin were as dogmatic and intolerant as the Catholic Church had been. This led to trouble, as is well known. In fact, the need for liberalism became especially apparant due to the religious wars in the aftermath of the Reformation, when the modern understanding of freedom of thought and liberty of conscience came into existence. Pluralism itself made religious liberty possible rather than anything intended by the Catholic Church or Luther or Calvin.’

A Brief History 5 Religious divisions remain. But these and other divisions should not be seen, not even by Catholics, as a disaster, but rather as the understandable outcomes of the activity of human reason. To see pluralism as a disaster is, in effect, to see the free use of human reason itself as a disaster. There is actually something intellectually exciting about the possibility of a reasonably harmonious and stable pluralist society. Until liberalism came on the scene, not even this possibility, much less its actualization, was clearly seen. It was previously assumed (as the long history of intolerance indicates), and in some circles it still is assumed, that a reasonably harmonious and stable society requires agreement on a single comprehensive religious (or philosophical) doctrine, on the common good. On this assumption intolerance was actually a virtue. But once people have to cooperate with others who seem quite different from them, it is much more difficult, if not impossible, to think that they are literally damned because they do not share one’s own beliefs and hence should not be tolerated. Reflective people came to see two basic alternatives: mortal conflict moderated only by exhaustion or equal liberty of conscience and freedom of thought.

Rawls’s political liberalism takes to heart the depth of this latent conflict still found whenever there is religious (or philosophical) pluralism. One way to try to resolve this conflict, but not the only way, is to try to establish a basis of moral knowledge completely severed from ecclesiastical authority. Hume and Kant tried to do just this by insisting that morality be accessible to everyone (not just the clergy) who is morally reasonable and conscientious, that the moral order arise

from human nature itself (rather than from God’s intellect), and that we bring ourselves in line with morality without the need for external (divine or hellish) sanctions. This is quintessential comprehensive liberalism rather than the more modest Rawlsian, political liberalism to be defended in the present book.” Contemporary problems in liberal theory surrounding race, ethnicity, and gender can be dealt with in the terms required to respond to the intellectual problems brought to light by the Reformation, as we will see. By focusing on a few classic problems we should be able to respond to several others, even if Rawls’s theory will ultimately need to be supplemented even regarding his own restricted concern for political justice. If religious (or other) liberty is to be denied—as when Calvin wanted to kill Servetus—we must justify such a denial in terms every reasonable person can understand and accept. Without these terms we would be left with a comprehensive doctrine that could be maintained only by the oppressive state use of deception or power. Neither Plato’s “noble” lie nor the Inquisition were accidents in that the suppression of dissent or heresy were needed to preserve the regnant comprehensive doctrine. The same would have to occur if society were organized along utilitarian or Kantian lines if these views were seen as comprehensive.° There is a significant difference between a political view that allows for a plurality of opposing, yet reasonable, comprehensive doctrines and one that holds that there is but one such doctrine. Plato, Aristotle, St. Augustine, and St. Thomas

6 A Brief History Aquinas each defended a version of the latter alternative. Indeed, since the Greeks

the dominant view has been that there is but one rational conception of the good—the common good—and that the aim of political philosophy, along with theology and metaphysics, was to determine its content. And some contemporary comprehensive (rather than political) liberals still hold on to this view, which was also shared by Kant and Mill.’ Just as it is unreasonable to impose coercive laws on morally reflective members of another sect because one thinks that there is no salvation outside of one’s own church, it is also unreasonable for utilitarians and deontologists to push their case too hard. These comprehensive doctrines—both religious and nonreligious—are unreasonable as po/ttical views because they take the public’s political power, in which

citizens should have an equal share, to enforce a view concerning which people may very well differ uncompromisingly. Note that Rawls is not saying that the dictum extra ecclesiam nulla salus (outside the church there is no salvation) is false; rather he is claiming that to use the public’s political power to enforce it is unreasonable. It is perfectly consistent within political liberalism to say that it would be unreasonable to use political power to enforce our own comprehensive religious doctrine on others, even if we believe it to be true, and even if our comprehensive religious doctrine should become so popular that it becomes dominant.” A stable political society is not necessarily one that must constantly use or threaten force; rather it can consist in the establishment of an overlapping consensus among people with different comprehensive religious (or philosophical) doctrines who come to value politically liberal institutions for their own sake. For example, in the sixteenth century Catholics and Protestants did not share an overlapping consensus. Members of both faiths wished their rulers to punish heretics.’ When the principle of toleration was initially accepted, it was not as part of an overlapping consensus shared with members of another faith, but as part of a mere modus vivenai or a Hobbesian truce. If either faith had become dominant, the repression would continue. Until the development of liberalism, the fair terms of cooperation among Catholics and Protestants were extremely narrow. Toleration and liberalism grew hand in hand along with the view that citizens can be allowed to have irreconcilable conceptions of the good and of the common good, a pluralism that we can now see as quite normal." Although we will be returning to this Rawlsian view of history throughout the book, an initial challenge should be considered now from Russell Hittinger, who thinks both that Rawls is a historical relativist by privileging a liberal political philosophy that just so happens to be popular in our historical era and that Rawls denigrates the political views of those who came on the scene before the liberal era because of their perfectionism. Hittinger correcly notes that PL does not so much depart from the principles of TJ as it changes the background against which these principles are to be understood. And this background is historical and political, even if the original position is still ahistorical and hypothetical. Hittinger

A Brief History 7 agrees with Rawls that liberalism did not emerge simply as a response to the religious wars in that it emerged also as a response to the problem of how to replace a morality based on ecclesiastical authority. This replacement was attempted by various comprehensive liberalisms that Rawls himself now wishes to criticize. But Hittinger wonders how Rawls’s notion of public reason would have to change if a theorist were to grant the social facts of feudal Europe a certain finality. Presumably this would lead to a medieval comprehensive doctrine rather than a version of liberalism. Thus, according to Hittinger, there is a degree of historical relativism in Rawls’s theory, a charge I will examine in more detail in connection with Rawlsian reflective equilibrium. Hittinger’s (and Franklin Gamwell’s) main criticism, however, is that perfectionism is not necessarily at odds with rea-

sonable pluralism, as Rawls thinks. For example, theological debate between Catholics and Protestants does not necessarily imply incommensurate positions on the value of religion or the family. Indeed, Hittinger thinks that a /imited perfectionism not only comports with, but actually facilitates, reasonable pluralism, say by having a government encourage religion as long as denominational differences are respected. Not all conflicts between comprehensive doctrines are as entrenched

as those between Catholics and Protestants in the sixteenth century or between contemporary fundamentalists in Judaism and Islam.” But Hittinger plays right into Rawls’s hands here. By requiring the adjective “limited” before perfectionism, Hittinger is admitting that political justice requires that some sort of restraint on our comprehensive doctrine is required if we are to be fair to others with a different comprehensive doctrine. And the fact that not all disputes between comprehensive doctrines need be as acrimonious as those between Catholics and Protestants in the sixteenth century is not so much a criticism

of Rawls’s thought, as Hittinger thinks, as a confimation of it: Catholics and Protestants get along with each other these days (Northern Ireland aside, although there are rays of hope even here) precisely because they have been civilized by liberalism. They have come to realize that insistence on the whole truth in politics—

with “whole truth” corresponding to one’s own comprehensive doctrine—is incompatible with democratic citizenship and the idea of legitimate law. They now agree that fundamental political questions should be decided by public reasons that might be shared by a// citizens as free, equal, and reasonable-rational. Public reason has several noteworthy effects: it can quiet divisiveness and encourage social stability. But it is also important that these effects be brought about for the right reasons. Although Catholics and Protestants initially agreed to the principle of toleration as a mere modus vivendi or Hobbesian truce, eventually they came to see toleration and public reason as valuable in themselves. Christianity has come a long way from the days of Constantine (fourth century) when heretics were punished; from the time of Pope Innocent III (thirteenth century) when there was a religious war against the Albigenses; and from the early modern period following Pope Gregory IX, who established the Inquisition. Given this background it is not

8 A Brief History surprising that the persecuting zeal that has been the great curse of the Christian religion should be shared by Luther and Calvin and other Protestant reformers, and that most of the American colonies had known established churches of some kind (Congregationalist in New England, Episcopalean in the South). Luckily the United States as a whole steered clear of establishment and of a confessional state. At least partially because of the success of religious freedom in the United States, eventually (at the time of Vatican II) even the Catholic Church put forth its Declaration on Human Freedom (Dignitatis Humanae), where the principle of religious freedom in a constitutional democratic regime is praised. This religious freedom is now seen to rest on a traditional re/igious principle: the dignity of the human person. All persons, regardless of their faith, have religious liberty on the same terms.” As John Courtney Murray aptly put the point: A long-standing ambiguity had finally been cleared up. The Church does not deal with the secular order in terms of a double-standard—freedom

for the Church when Catholics are in the minority, privilege for the Church and intolerance for others when Catholics are a majority.”

In sum, Rawls is hardly a historical relativist, as Hittinger suggests, in that there has been slow progress at work in the last several centuries regarding questions in political philosophy that affect religion, a progress that entails a substantive moral

judgment that could not be justified in a historical relativist scheme. And on Rawlsian grounds religious perfectionists must first limit the scope of their comprehensive religious doctrines (so as to impartially establish justice) and then explore the degree to which their perfectionistic standards are compatible with (or conducive to the flourishing of, according to Hittinger) reasonable pluralism.” It has always been Rawls’s view that the normal conditions of justice involve circumstances where human beings cooperate for mutual advantage, circumstances that are typified by conflict, however, as well as by commonality. And it is obvious why there are conflicts even among moral people: human beings are not indifferent as to how the benefits produced in a social setting of moderate scarcity are to be distributed. These differences of opinion are based on a diversity of religious (or philosophical) doctrines. But they are not necessarily due to human selfishness.

Just as in the absence of danger there would be no occasion for the virtue of courage, so also without the conditions of moderate scarcity and without concern regarding how resources will be distributed there would be no need for justice. The fact that there is such a need 1s more due to these conditions than to any flaw in human nature.” In fact, even the spiritual ideals of saints and heroes can be opposed irreconcilably, and when such an opposition comes to the surface the results can be tragic. The point here is that justice, by definition, is the virtue of practices where there are assumed to be competing interests. Disputes about justice and rights would not exist at all, perhaps, if the persons involved were saints who agreed on a common

A Brief History 9 ideal. ‘The qualification here makes us realize how unlikely it is that we can avoid

the complex business of ameliorating disputes among reasonably moral people who are not saints. [hese ameliorative efforts involve: (1) judgments citizens must make regarding the justice of legislation and social policies, knowing full well that reasonable others will have different opinions; and (2) decisions on the constitutional arrangements that will provide the most just means available of adjudicating these disputes, for example, through the imperfect procedural justice device of majority rule.”®

Because of the clash of political beliefs, the principle of loyal opposition ought to be accepted as a normal condition of political life. Indeed, without the concept of loyal opposition the politics of democracy cannot long endure because a lack of unanimity is part of the very circumstance of justice even among honest individuals who desire to follow the same principles, say if they are members of the same political party or the same religious affiliation.’’ These ideas regarding

reasonable pluralism, clearly evident in TJ, are emphasized even more in PL, where a democratic society is characterized not only by a pluralism of comprehensive religious (or philosophical) doctrines, but also by a pluralism of reasonable comprehensive religious (or philosophical) doctrines.

For example, even among religious believers there is quite a difference of opinion between those who take the Bible literally (however problematic this view might be) and those who take it seriously but not literally. And there is an interesting question as to how the former can support a just democratic regime. Not all reasonable comprehensive doctrines are liberal on their face. And, as before, it is not enough that religious believers accept democratic decision-making procedure as a modus vivendi. The stability of a just democratic society requires that religious believers be wholehearted members who are not merely “going along” with democracy in view of the balance of political forces arrayed against them. Rawls’s desire to bring religious believers—even biblical literalists or those obedient to church authority—within the politically liberal fold is evidence that his political liberal-

ism is quite different from the comprehensive liberalism of the Enlightenment. The goal is not to strike a balance or an average between competing comprehensive doctrines, but to formulate a liberal political view that defenders of nonliberal comprehensive doctrines can endorse. This is the key to overlapping consensus. To put the matter in different terms, for the ancients and medievals the main political problem concerned the doctrine of the good, whereas for us in the contemporary period the main political problem concerns justice for all, including justice for religious believers. Just as reasonable pluralism is a given in the contemporary world, so is the fact that not everyone buys into Enlightenment comprehensive liberalism.

The most intractable struggles, it is assumed, are those concerning the highest things: most notably God and the good. The remarkable thing is not that we disagree, but rather the degree to which we can engage in just cooperation as free and equal citizens.*

10 A Brief History The historical orientation to political liberalism should not be interpreted to mean that because political liberalism had a historical beginning, it will have an end as well. All indications are that reasonable differences among comprehensive religious (or philosophical) doctrines will be a continuing feature of political life into the foreseeable future. (Perhaps they were there at least implicitly in the ancient and medieval worlds, as well, but were suppressed.) Both the unreasonable sources of political disagreement (e.g., bias, blindness) and the reasonable ones to be explored in this book (especially in terms of the “burdens of judgment”) are almost certain to endure. It is not only unrealistic, but also a source of mutual hostility and resentment, to assume that political differences are due exclusively to unreasonable sources."”

There are three main features of reasonable comprehensive doctrines that are likely to continue. First, they are exercises in theoretical reason that cover the major religious (or philosophical) aspects of life in a more or less coherent manner; second, they are also exercises in practical reason in that they prescribe which values are to be considered significant; and third, they tend to rely ona tradition of thought that evolves slowly. Political liberalism encourages one to see familiar comprehensive religious (or philosophical) doctrines as reasonable even if one would never seriously entertain the possibility of converting to them. For example, a Catholic can see the worldview of a believing Jew as reasonable without ever seriously considering becoming a Jew, and vice versa. And it is unreasonable for Catholics or others to use political power to repress a reasonable comprehensive doctrine like Judaism, and vice versa. In other words, citizens in political liberalism should be assumed to always have two views: their own comprehensive doctrine and a political view that includes a cognizance of the many ways in which the wider realm of values can be understood and historically have been understood.” Given the reasonable differences among comprehensive religious (or philosophical) doctrines, citizens have a duty of civility to explain how their comprehensive doctrines support public reason, otherwise the adjective “reasonable” would not appropriately describe the abstract noun “differences.” In addition, the civility that characterizes relations among those with reasonable differences helps to hold in check the differences that arise from unreasonable sources.”

Nonetheless, there are some who are threatened by political liberalism no matter how prominent a place it procures for civility. For example, R. Bruce Douglass sees quite a distance between liberal religious believers or progressive Catholics, on the one hand, and political liberals or progressives, on the other. The latter have a hegemonic intent that bothers Douglass, although he admits that Rawls is correct regarding the fact of pluralism, a fact that is not only taken for granted by liberalism’s detractors, but is also part of the detractors’ selfunderstanding. That is, even many of liberalism’s sharpest critics have reconciled themselves to liberalism at least to this extent: their comprehensive view is but

A Brief History 11 one more point of view among others that also deserve respect. As Douglass sees

things, this indicates more than a recognition of pluralism and more than a recognition of the legitimacy of other points of view. It also indicates, he thinks, and herein lies the hegemonic ambitions of political liberals, a tendency to place a premium on a certain conception of human existence, specifically a premium on choice. Douglass is bothered by the nearly irresistable lure of liberalism’s elective self: one chooses a view of the good, one chooses to join the Catholic Church or to remain a Methodist, and so on. Because political liberalism’s overlapping consen-

sus inclues socialists and Aristotelians and Nietzscheans and Lutherans and Buddhists and hedonists it is not bothered by any of these individually, hence its view of the elective self remains intact. But it will not remain intact indefinitely

because, according to Douglass (who relies a great deal on the thought of Michael Sandel”), to assume that human beings choose their ends or their views of the good, rather than discover them as the ancients and medievals believed, is to rest content with precarious metaphysical (not just methodological) assumptions regarding human nature.” Ata later point I will examine the relationship between political liberalism and philosophical anthropology, as well as the place of the good and the common good in political liberalism. We will see that Rawls’s view is political rather than comprehensive and does not endorse the substantive philosophical anthropology attributed to him by Douglass or Sandel. At this point, however, I would like to emphasize the

important concession that even an opponent to liberalism like Douglass has to make. The religious (or philosophical) positions of people in contemporary society are radically different from each other, hence the price moral people would have to pay for annihilating these differences is too costly. Contemporary antiliberals are, in some sense, liberals.

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CHAPTER TWO

THe Orictna Posirion

Te far I have briefly sketched the historical background to political liberal-

ism as defended by Rawls, characterized as it is by an attempt to reconcile in a just way the enormous differences among people in contemporary society. Such a political reconciliation, as is well known, requires, on a Rawlsian view, the adoption of the original position. It is abundantly clear that this is a hypothetical situation of equal liberty, rather than an actual historical state of affairs. Nonetheless the original position is meant to model what claims to justice ought to look like in the real world, for example, by modeling the idea that each is of equal worth. In the original position no one knows his or her place in society, class position, or social status, and no one knows his or her religious beliefs or their conception of the good. One deliberately hides behind a veil of ignorance, presuming that one’s spiritual aims may, in reality, be opposed to those of others who are currently behind the veil. The purpose behind such deliberation is to make it impossible that one tailor one’s principles to the circumstances of one’s own case. For example, if a person knew he was wealthy he might be more likely to think it rational to advance the idea that taxes for social welfare measures are unjust; if he knew he was poor, he would be more likely to propose the contrary. At any time we can enter the original position by following a certain procedure and adopting a certain attitude, an attitude that will have as its result the belief that, for example, religious intolerance and racial discrimination are unjust.’

It might be asked why, if the original position is purely hypothetical, we should take any interest in it. The proper response is both that the original position, once again, models the claims we ought to make regarding justice and that the conditions found in the description of the original position are those that we do i fact accept. The underlying conception here is that a just society consists in a fair system of cooperation for reciprocal advantage, a system regulated by principles that people would in fact choose in an initial situation that is fair. To say that the original position is hypothetical is quite different from saying it is unrealistic. Participants in the original position are not creating political reality ex nihilo the 13

14 The Original Position way the omnipotent deity of traditional theism might choose among the best of all possible worlds. Rawls himself admits to a re/igious interest in how God would make such a choice, but the political interest he has that the original position be fair is a different matter altogether. Participants in this position are ignorant of

some things, both because they are not omniscient and also for the sake of method, but they are quite knowledgable about others.’ The way to show that a principle is unjust is to demonstrate that it would not be agreed to in the original position, where a contract would be established that is public and just. The justice of the contract is due to the limits that are set in this

position. Further, when it is clear which sorts of knowledge the participants should and should not have, the participants assume that their agreement is final and made in perpetuity so as to indicate the serious nature of their deliberations. Once again, participants in the original position do not need God-like knowledge to succeed, as do the ideal sympathetic spectators in Hume’s philosophy. By way of contrast, participants 72 the original position are mutually disinterested rather than sympathetic, and they lack knowledge of their natural assets and social situation rather than being omniscient.” That is, it must be admitted that there is something like the original position in other views, as in a utilitarian version of the original position wherein criteria like quantity, intensity, and quality of interests advanced or penalized are impartially assessed. But, as is well known, as a result of this model some can be unjustly sacrificed for the sake of the whole. Or again, on Hume’s ideal sympathetic spec-

tator view, sympathy is weaker than self-interest, but it is nonetheless sympathy that allows us to bring our moral opinions into agreement, an agreement that ideally requires perfect knowledge and perfect sympathetic identification with others, God-like abilities that Rawls rightly thinks we are unlikely to attain. The genius of the original position is, in part, that it allows us to be human beings. This is not to say that we are allowed to be egoists. Parties in the original position assume that they have interests that they must protect, in part because they are also the interests of those with whom they have ties in the next generation who will make similar claims. Further, they assume that once the veil of ignorance is lifted they will have religious interests that they do not want put in jeopardy, and religious obligations that they will want to honor. They just do not know exactly which religious interests and which religious obligations. Parties in the original position must choose principles that secure the integrity of their religious freedom in that they do not know if their religious beliefs are in the majority or minority. [hey cannot take chances on something so important as the possibility that a dominant religion could persecute others. We will see that the only rational justification in the original position for granting greater religious liberty to some rather than to others is for the sake of the preservation of liberty itself. Otherwise the veil of ignorance leads to an agreement regarding equal religious libery. Even in TJ, and much more so in PL, Rawls is aware of the

The Original Position 15 objection that some will raise that suggests that obedience to absolute religious or divine law prohibits any limitation on the claims the true believer can make on others. Many people have certainly acted as if they believed this principle. But Rawls does not really feel the need to argue against this view because, if any prin-

ciple regarding religious liberty were to be decided in the original position, it would be that of equal liberty. No doubt some religious believers are confused as to why others do not adopt the true faith that assures salvation. But from the perspective of the original position behind a veil of ignorance, we cannot rationally expect others (or ourselves!) to accept an inferior religious liberty. Nor can we expect others to entrust us with the responsibility of establishing their own religious obligations. What we can do is choose for others as we have reason to believe they would choose for themselves if they were choosing rationally. Although Rawls has gotten himself in hot water for claiming that the original position is an “Archimedean point” from which the basic structure of society can be appraised, he is certainly to be commended for lo-

cating the very special nature of the place carved out by the original position, wherein parties can be assumed to take an interest in primary goods they would want if they want anything. But they are not assumed to prejudge a fuller theory of the good or a fuller choice regarding the religious beliefs they will have or the sorts of persons they want to become.* The original position is an “Archimedean point” 17 the sense that we are temporarily liberated from existing wants and interests so as to fairly assess the social system, a fairness that rules out the possibility that one’s perception of the religious practices of others would lead to an attack on liberty of conscience. The original position is thus very much like perfectionism in this limited respect: existing wants and interests must be constrained in order to reach justice. But it is only in this limited sense that the Archimedean restraint of the original position is like a priori or perfectionistic principles. Despite the fact that the original position is not perfectionistic in any strong sense, it is not egoistic, either, despite the claims of some religious believers that it is, as we will see. All generations are virtually rep-

resented in the original position, such that it is best conceived as designing a scheme of cooperation that is spread out in historical time. The participants in the original position should see themselves, according to Rawls, as parents ascertaining what should be set aside for the sake of others who will exist at a later stage. In fact, behind the veil of ignorance the participants in the original position, although contemporaries themselves, do not know what their own generation will be. Their familial lines of sentiment may look forward to their sons and daughters to whom they wish to leave a certain level of prosperity, or perhaps backward to ancestors who foolishly squandered their wealth so as to leave them at present in a penniless condition. In any event, it is the duty of those in the original position to improve civilized life for a//, at least up to a certain level, with greater sacrifices required perhaps if the level of civilization they inherit from their ancestors

16 The Original Position is rather low. From the perspective of the original position, the living are not allowed to take advantage of their position in time, whatever it might be, because provisions for future individuals are subject to the principles of justice.° An understanding of the original position militates against the claim that the philosophical anthropology of political liberalism is egoistic, just as it militates against an egoistic interpretation of autonomy. From the perspective of the original position, autonomy consists in acting from principles that would be accepted by free and equal, reasonable-rational beings. Autonomy from the perspective of the original position does not mean license to form moral convictions in any way possible. For example, one is not free to adopt principles that would be rejected by other free and equal, reasonable-rational beings in the original position. Rawls admits to those religious believers who are skittish about the notion of autonomy that it can, in fact, lead to “a mere collision of self-righteous wills” if it is not constrained by the conditions found in the original position: that the principles agreed to conform to our (political) nature as free and equal, reasonable-rational beings cooperating with others with the same properties.’ In addition to being an Archimedean point in the sense that the original position allows us to be fair by restricting our existing wants and interests, a restraint that is compatible with the askeszs found in all of the world’s great religions, it is also Archimedean in the sense that it is an implicit criticism of the utilitarian version of the original position where our existing wants and interests constitute a normative baseline in light of which we determine which acts/institutions/rules are correct. [he Rawlsian original position, by way of contrast, is Archimedean not only because it enables us to justify norms that constrain our existing wants and interests, it also enables us to discount entirely the relevance of certain existing wants and interests. Further, the Rawlsian original position unites in one conception a reasonably clear problem of choice. No particular religious motivation is attributed to parties

in the original position so as to enable them to handle fairly this problem of choice. Or again, participants in the original position are not assumed to adhere to a respect for persons principle—a principle integral to most varieties of religious ethics—in order to allow them to fairly decide if this controversial principle (controversial to comprehensive utilitarians, for example) would be adopted. It would in fact be adopted. Hence religious freedom, liberty of conscience, and respect for persons (i.e., the idea that persons possess an inviolability based on justice) are given a more definite meaning as a result of the original position even though we do not start out with them.* Once we grasp the concept of the original position, we can at any time look at the social world from the required objective point of view. In the following remarkable quotation, it should be noted that whereas Rawls initially identifies the original position with a God-like view sud specie aeternitatis, a view that might strike some religious believers and others as an example of Aubris, he quickly clar-

The Original Position 17 ifies his stance so as to make it clear that he does not literally mean a view sud specie aeternitatis that is beyond human culture and history. Rather he means a view that is objective (or “eternal”) in the sense that it is achieved after having worked hard to adopt as many (Rawls says “all”) different temporal and spatial points of view as

possible. It is embodied temporal beings who engage in the painstaking abstract reasoning required in the original position: Without conflating all persons into one but recognizing them as distinct and separate, it enables us to be impartial, even between persons who are not contemporaries but who belong to many generations. Thus to see our place in society from the perspective of this position is to see it sub specie aeternitatis: it is to regard the human situation not only from all social but also from all temporal points of view. [he perspective of eternity is not a perspective from a certain place beyond the world, nor the

point of view of a transcendental being, rather it is a certain form of thought and feeling that rational persons can adopt within the world. And having done so, they can, whatever their generation, bring together into one scheme all individual perspectives and arrive together at regulative principles that can be affirmed by everyone as he lives by them,

each from his own standpoint. Purity of heart, if one could attain it, would be to see clearly and to act with grace and self-command from this point of view.”

Not only does the point of view of the original position avoid Audris, it actually requires a certain degree of humility, the sort of humility that Ronald Green also sees as crucial in Jewish ethics. Humility is exemplified in the abandonment of the knowledge of one’s particular strengths and excellences as required by the original position. The individual who (hubristically) cannot separate herself from her social or natural advantages will not be likely to submit to rules on which she would agree if she knew nothing more about herself. Further, there is a certain humility required to imagine, as a member of the original position, that one is likely to end up in real society as one of the least favored representative human beings. It must be admitted that once im the original position, the participant pursues her own rational advantage as constrained by the veil of ignorance. But to decide to enter the original position in the first place involves a certain humility that is admirable from the perspective of religious ethics. The humble individual would willingly submit to the logic of the original position so as to ascertain whether or not her practices have had a deleterious effect on the disadvantaged. In short, on Green’s view in order for Rawls to succeed in explicating the (Greek) virtue of justice he also needs to avail himself of the (Hebrew) virtue of humility." Green's Jewish affirmation of the original position is mirrored in Harlan Beckley’s Christian affirmation. Beckley sees a basic dilemma in contemporary reli-

gious ethics: How does one balance a faithfulness to the distinctive religious and

18 The Original Position ethical beliefs of one’s own tradition with respect for the liberty of those who do not

share one’s beliefs? Rawls’s political philosophy best helps us to respond to this dilemma, he thinks, which has become acute in light of the emergence of a politically powerful Christian right. Beckley assumes without argument, correctly I think, that a proper understanding of the thesis that we are made in the image of God requires that we respect the liberty of those reasonable others who do not share our beliefs. 'The problem is clear: to respect the liberty of conscience of others is to open

up the possibility that some of them, perhaps a great number of them, will reject Christian beliefs even as Christians try to influence the society. This influence can take many forms, including the energetic ones of the Christian right to change abortion laws, as well as the passionate efforts of the Christian left to redistribute wealth along agapistic lines. But the efforts of the Christian right and left are very controversial, both within and outside of Christianity, hence Beckley thinks that the distinctly Christian ideal of love obligates Christians to embrace something like Rawls’s original position as a perspective for justifying principles of justice.” Even without the benefit of PL, Beckley was able to see that conflicts among

people in society are almost always only partial, such that some sort of overlap among reasonable citizens is to be expected. This is not to deny that the abovementioned dilemma is real, in that there are distinctively Christian moral standards, but it is rather to say that the dilemma is nonetheless resolvable because of the continuity and overlap between Christian beliefs and the beliefs that others hold regarding justice. Obviously one way to “resolve” the dilemma is to enforce Christian principles on everyone else, an option actually tried by Catholics, Protestants, and Orthodox Christian believers in the past, and at present sometimes defended by the Christian right. Luckily, relatively few Christians are now willing to defend this stance because, at the very least, forcing one’s political beliefs

on other reasonable people who are not Christian is to show disrespect to these fellow reasonable human beings who are also, on religious grounds, made in the image of God.'* The unreasonable ones, albeit made in the image of God, are another matter, as we will see in a later chapter. Beckley faces a challenge not only from the Christian right, some of whom

wish for a muscular Christianity that could “make the United States a Christian nation,’ but also from certain strands within the Christian left. For example, John Howard Yoder’s view is at odds with Beckley’s Rawlsian stance because Yoder thinks that there is insufficient continuity between Christian and other ethics, hence the prospects for an overlapping consensus are weak. The problem here seems to stem from a difference of opinion regarding what “religious ethics” means. If it means divine command theory szmpliciter, as Yoder’s biblical revelationism seems to indicate, then overlapping consensus is unlikely. But if it also includes some version of natural law theory, wherein the truths found in Christian ethics (or at least some of them) are also available through a natural use of human reason, then Beckley’s liberal optimism is warranted.”

The Original Position 19 Some may be skeptical of the claim that divine command theory lacks sufficient overlap with nonreligious views in that a command that truly came from God would seem to have ubiquitous applicability. It should be noted, however, that divine command theory taken in this way as a metaphysical theory could nonetheless lead (and historically has led) to enormous epistemic problems regarding how to interpret God’s command such that there would still be a need for the original position so as to sort out disputes among divine command theorists themselves. The long history of warfare where each side claimed to be carrying out God’s will is sufficient evidence, it seems to me, to make this point. Even if one of the duties for Christians is to witness to the ethics of Jesus, it is unclear why this has to preclude other reasonably justified duties. It is also unclear why “witnessing to the ethics of Jesus” has to be construed in narrow, sectarian terms. Yoder’s response to these concerns seems to be in terms of “middle axioms” (which he borrows from Reinhold Niebuhr) that bridge his biblical

foundationalism to the terms that would be understandable to non-Christians. But this is somewhat different from the shared beliefs that constitute overlapping consensus, beliefs that are, in their own way, indicative of agape. Middle axioms, by way of contrast, are temporary pragmatic concessions that Yoder would eventually hope to abandon in the effort to persuade others to approximate the ethics of Jesus.” The only possibility for moral agreement on the concept of justice, short of the antediluvian hope that all persons will convert to a single comprehensive doctrine, is to abstract away from at least some particular moral conceptions. This is not to ignore these particular moral conceptions, say by deducing principles of justice from universal premises. Rather, Rawls and Beckley try to reach general agreement by means of a fair contract situation where religious beliefs are not held to be mere prejudices so much as the raw material out of which an overlapping consensus can be reached. Religious beliefs are not so much sheer prejudices as they are insufficient grounds for establishing the rationale for coercing those

who do not share them. Or again, the point to the abstraction entailed in the original position is not only to purge ourselves of unreasonable prejudices, although it is at least that, it is also meant to avoid enforcing a system of justice based on our reasonable prejudices on others who have different, albeit reasonable, prejudices of their own.” Later in the book I will respond in detail to the following objection that is likely to arise at this point: granted that an overlapping consensus is possible only if citizens abstract away from their more controversial convictions, it does not follow that citizens who want to reach agreement with their fellows are thereby obliged to refrain from attempting to impose their convictions on their fellows. This objection seems to hinge on a certain pessimism surrounding overlapping consensus. [hat is, it assumes that, having abstracted, we might find that we still lack the desired consensus, hence we would have little choice but to rely on our

20 The Original Position controversial convictions in deciding which policies to support. | am much more optimistic regarding the future possibility of, and historical evidence for, overlapping consensus. In any event, in Part II of the book I will treat the practical issues surrounding this objection. Individuals in the original position are not displaced with respect to their Christian history, but rather they engage in abstraction from history for the sake of a value that they, along with others, care for a great deal: justice. This is not an “eternal” view, as we have seen, but rather one that is necessitated by our own historical situation at least since the Reformation. Dealing fairly and cooperatively with this situation is to be seen as a virtue, unless, of course, one wishes to take the drastic step apparently defended by Jeffrey Stout in The Flight from Authority (cf., Stout’s Ethics After Babel) whereby religious authority trumps cooperation with non-Christians. Stout’s point here would carry more weight if the goal of the original position were cooperation af any price. But the original position fosters not only cooperation, but also the substantive view of the participants as free, equal, and reasonable-rational. Those who believe it is good to treat all persons (regardless of religion, race, sex, etc.) as free and equal will be willing to cooperate in the original position. And those who are willing to engage in such cooperation are not “giving up” anything in the original position so much as they are gaining objectivity in terms of the affirmation of their most cherished political belief: that a fair system of justice should be established. The original position both prevents the loss of reli-

gious liberty and makes possible the considerable gain associated with an impartial stance from which to make objective judgments concerning justice. Christian belief in the equal worth of persons is more than compatible with the theory of liberty that underlies justice as fairness; in fact, it facilitates the gain in objectivity brought about by the original position in that each participant contributes to the final result."° Everyone, including Rawls, can admit that Christian love requires more than justice. But to admit this much does not enable us to eliminate Beckley’s dilemma: we must as Christians morally oppose forcing our distinctive morality on others, yet as Christians we are unwilling to abandon or compromise our deepest moral beliefs. Only the original position, or something like it, Beckley thinks, enables us

to deal adequately with this problem. He agrees with Gene Outka that the primacy in (Jewish and) Christian tradition of the God of love, and of love (agape) as equal regard for neighbor, has implications for justice as fairness. Despite the many debates regarding the ethical implications of Christian agape (e.g., whether it requires sacrificial altruism or asceticism; or whether it permits self-regard, and if so to what extent; whether it requires added obligations to those with whom we have special relations; etc.), all parties can jointly see the idea of Christian love as a type of equal regard. It applies equally to each neighbor qua human existent regardless of special natural abilities or achievements."”

The Original Position 21 It would be a contradiction for agapists to treat nonagapists disrespectfully, hence even nonagapists are to be welcomed into the original position. It might be objected that by engaging in a social contract with nonagapists one might be likely to be lured into beliefs contrary to Christianity, say by succumbing to materialism or consumerism (assuming, for the moment, that agapists are immune to these). But all that is assumed regarding material goods when entering the original position is that primary goods will be needed for everyone, even altruists and ascetics. Altruistic self-sacrifice (assuming, for the moment, that agape requires such) is not to be equated with indifference regarding how primary goods are to be distributed. And any goods in addition to these that may be accrued when incarnated after the original position can easily be renounced by ascetics if they wish to do so.** It should not escape our notice that the religious liberty secured in the original position will allow radical agapists the freedom to try to persuade all citizens to adopt more self-sacrificial and less materialistic ends. But if agape requires a respect for the otherness of the beloved and an unwillingness to violate his integrity, then such efforts will have to remain persuasive rather than coercive. Christian agapists with biblical warrant for concern for the disadvantaged and poor can gain solace, however, as we will see, in the guarantee that in justice as fairness even economic inequalities are, through the difference principle agreed to

in the original position, to the least advantaged’s benefit. And if Christian agapists wish to work on their own so as to approximate a Kingdom of God beyond justice, they are guaranteed the freedom to do so. Love affirms, but it does not replace, justice as fairness.”” Justice is only one of the social virtues (albeit it is the first social virtue), hence there are other social virtues in addition to justice, for example, compassion. Christians are given, within the boundaries of justice, expansive freedom to practice compassion and to encourage it in others. But they cannot force others to be compassionate, both for Rawlsian and definitional reasons. Regarding the latter one should note that forced compassion would not really be compassion. Not many will be as wildly optimistic as Gregory Jones in eliminating the need for the original position: now that the religious wars are over, perhaps rational agreement can be reached such that (if I understand Jones correctly) Christians and nonChristians alike can agree on a conception of the good and on a common set of religious beliefs so as to allow the virtue of compassion to flourish.” Jones’s optimism seems to be fueled not only by hope for mass conversion, but also by what he sees as the success of Aristotle’s view, as recently retrieved by Alasdair MacIntyre. On this view it may be the case that it is not that religious beliefs and competing conceptions of the good have precluded rational agreement about the good. Rather our Enlightenment-induced theories and institutions have so corrupted our shared social practices that we no longer have the character necessary to reach some sort of agreement. By retrieving Aristotle, Jones thinks, we can rescue Rawls from a view that is at once too optimistic and pessimistic. It is

22 The Original Position too pessimistic in the way it depicts us in a condition similar to that in sixteenthand seventeenth-century Europe, and it is too optimistic in thinking that our natural sense of justice can help us to establish a moderately just society instead of the “morally bankrupt” one we have. By way of contrast, Jones thinks the traditional Christian theological assessment of our condition is more accurate: human beings have a tendency toward self-absorption, pride, and injustice.” Rather than concentrating on the original position, he seems to be saying, we should concentrate on original sin. One wonders if Jones has it right, or perhaps if the truth lies the other way around. It may very well be Jones himself who is at once too optimistic and too pessimistic. He is too optimistic in thinking that reasonable pluralism can be eliminated any time in the near future. Although Catholics and Protestants are no longer at war with each other, the diversity of incompatible interests in contemporary society makes the elimination of reasonable pluralism more unlikely than ever, as anyone who has ever attended a general faculty meeting at a university has learned. And he may very well be too pessimistic regarding our natural sense of justice, which can, if properly aided by the original position, function quite well even if human nature is part/y flawed by original sin or Hobbesian tendencies.” I take it that a defensible view of human nature would have to carefully mediate between Augustinian or Hobbesian pessimism, on the one hand, and romantic optimism, on the other. Critics who are skeptical regarding the original position are usually bothered not by Jones’s concern for our attenuated natural ability to be just, but rather by the systematic deprivation of information that characterizes the framing of freedom of choice found in the original position. It should be reiterated, however, that the original position is an analytical device used to formulate a conjecture regarding the most reasonable principles of justice for a constitutional democracy where citizens are seen as free, equal, and reasonable-rational. To be sure, decisions made in the original position must be checked against the fixed points of our considered judgments at different levels of generality so as to avoid Jones’s charge of naiveté. And after “inhabiting” the original position we should check our results against the state’s constitution, the decisions made by its legislative bodies, the pronouncements of its judges, and the opinions of religious believers. In the final analysis, it is only after a great deal of hard work that we are in a position to declare on the issue as to whether Rawls’s view of our natural sense of justice is too optimistic.” Quite apart from the likelihood of success as a result of the original position, at least in aspiration it is intended to help us attain shared reason in that justice should be, as much as possible, independent of opposing religious (or philosophical) doctrines that citizens affirm. To try to achieve such shared reason through the

use of divine command theory, where God tells us what the moral law is, is doomed from the start because many reasonable people reject this theory. Slightly

The Original Position 23 greater success can be hoped for through the use of natural law theory, but the limits of natural duties are quite severe, as we will see in a later chapter. The greatest hope of success in shared reason comes through a social contract—albeit raised to a higher level of abstraction than the social contract as traditionally conceived, hence Rawls wisely gives it a new name when he calls it “overlapping consensus.” This overlapping consensus is among people who can maintain their own com-

prehensive doctrines, whether they be rights-based, utilitarian, natural-law oriented, based on the traditional social contract, or founded on divine command theory. [he key to success is to eliminate bargaining advantages that are due to cumulative natural and social tendencies.” The fact that we occupy a particular social position is not in itself a good reason to expect others to accept a principle of justice that favors those in this position. So also, the fact that we have certain religious beliefs is not in itself a good reason to expect others to accept a principle of justice that favors those with these beliefs. he same applies regarding race, sex, and so forth. The original position is a device of representation that serves as a means of public reflection and clarification on these matters. As an abstract device of representation, however, the origi-

nal position should not be seen as a Trojan horse sneaking in a particular metaphysical view of the person, as some (e.g., Sandel, most famously) suspect. We can enter the original position at any time no matter what our metaphysical view of the self, although it must be admitted that egoists may have a harder time of it than others due to the humility required to imagine oneself one of the least fortunate members of society. To use a theatre metaphor, assuming that a play is also a device of representation: to act the part of Lady Macbeth does not commit an actress to think that she really does have sticky evil on her hands that cannot be washed away. As members of the original position we are artificial creatures, with “artificial” referring to the older sense of the term characterizing something as an artifice of reason. The original position provides a space so that “reasonable” people can willngly enter so as to engage in “rational” deliberation, with these crucial terms to be defined later. In the original position we also assume the participants are free and equal, even if religion and culture might encourage us to think otherwise.” There is obviously a continuing worry on the part of some religious thinkers

that political liberalism cannot be based on an abstraction from peculiarly Christian points of view because then there would be nothing distinctively “Christian” about this political stance at all. As William Werpehowski makes the point, however, the abstractness of the original position may be needed in order to better focus on a theological value that religious believers might otherwise keep out of focus: “liberalism’s special strength is its elevation and egalitarian defense of the irreducible otherness of the free individual.””° Complete abstraction away

from Christian community is a danger for any Christian believer, as Stanley Hauerwas among others has pointed out. But abstraction to a certain degree away

24 The Original Position from some theological values is necessary for religious believers to appreciate one

of the most important of their own theological values: the integrity of, and respect for, the individual created by God. That is, the purpose of abstraction in political philosophy is not to permanently walk out of the Platonic cave, to leave the city behind so as to climb theoretical mountains for their own sake, but rather to better understand and to develop the relevant criteria necessary for the improvement of the state.” The tension here is as follows: on the one hand, justice is like rationality in requiring the elimination of arbitrariness, hence in the original position ignorance is required even of one’s view of the good; on the other, a ¢abula rasa attitude 1s almost impossible to achieve due to the fact that we always occupy some particular position in a society diachronically in process through time.” But as recently as 1995 Rawls remains unapologetic regarding the abstractness and supposedly unworldliness of the original position, in particular, and of his philosophy, in general. The fact that citizens remain deeply divided on religious (and philosophical) issues sets in motion the work of abstraction. This decidedly does not mean that politi-

cal philosophers must completely withdraw from society, but it does mean that their particular judgments must sometimes yield to principles established on an abstract basis, subject, of course, to the conditions of reflective equilibrium, as we will see. “The deeper the conflict, the higher the level of abstraction to which we must ascend to get a clear and uncluttered view of its roots.”” Timothy Jackson is not convinced. Although he admits that Rawls’s thought is probably the most congenial among contemporary secular views to a Christian conception of justice, Rawls’s view actually takes us part of the way to Bedlam be-

cause it fails to acknowledge the priority of agape. “Bedlam” is a perversion of Bethlehem that signifies insane confusion. Quite a negative judgment! The commitment to justice, freedom, and equality in political liberalism, Jackson thinks, are not to be equated with their real home in Christian community. In fact, the original position is populated by “lunatics” who do not know who they are. It would be easy to dismiss Jackson's rhetorical outbursts as unfitting for scholarly treatment, but he presses a serious concern that cannot be ignored. The concern is that in the

transition from TJ to PL Rawls has moved from a comprehensive liberalism wherein there is a “morally basic” conception to a postmodern or merely pragmatic view that is “morally empty,” to use Jackson's designations. It is not that Jackson is actually a defender of comprehensive (or any other sort of ) liberalism, but he does see comprehensive liberalism as a secular version of Thomistic and Reformed theology. By way of contrast, Rawls’s more recent political liberalism is “an impossible theory.” It is impossible because “any number of conflicting and even tyrannical positions are compatible with justice as fairness.” Hence rather than the original position, Jackson prefers the original story about

Adam and Eve, a story that makes it clear that humanity is created in God’s image. Participants in the original position, however, are stripped of any thick

The Original Position 25 conception of their own worth or of the good life together. Given this starting point, a focus imaginarius, 1t seems that we should not say that we are saved by divine kenosis (emptying or sacrifice), but by human Aenosis. Jackson is even sceptical

as to whether the Rawls of PL believes or shows that human beings are free and equal. He rather uses these beliefs merely because they are culturally dominant. That is, Rawls has moved from political fallibalism to political conventionalism.”” The problem with conventionalism, on Jackson’s view, is that it signals the death of theoria. Rather than suggesting that reality is too variegated to be captured by discursive reason alone, and hence also requires something like religious faith, in political liberalism, according to Jackson, there is very little emphasis on theory at all. A more fruitful option, he thinks, would be to affirm a moral Ze/os to human nature, but also to affirm a tolerant social arrangement, a tolerance primarily based on the nuanced differences in various metaphysical and moral theories such that different religious traditions grasp various parts of moral and political reality better than others. Despite what he sees as the superficial similarities between the maximin principle and, say, the recent Catholic emphasis on the pref-

erential option for the poor, there is no deep, biblical solidarity with the disenfranchised in political liberalism. Rawls’s view is so theoretically thin that it rules out, on Jackson’s interpretation, amy appeal to religious tradition. We will see that this is a blatant misrepresentation on Jackson's part, as is his claim that tyrannical government might be agreed to in the original position as modified by PL. As before, Jackson’s lively metaphors (e.g., Rawls gives more to Caesar than is rightfully his to receive; the difference between Rawlsian “reasonableness” and “rationality’— the latter of which he thinks is antithetical to Christian agape— leads to “schizophrenia”) make for good reading, but for questionable philosophy or theology. For example, is it necessarily the case, as Jackson alleges, that contemporary liberal talk of “rights” makes no sense unless one specific view of human nature is affirmed? Is it true that Rawls “divinizes” society? We will see that both questions should be answered in the negative. But Jackson is in a peculiar way a political liberal in spite of himself when he asserts that a contemporary Catholic will “of course ... not want to interject all the vagaries of soteriology, Christology, Mariology, etc. into public discourse about who gets to vote” (emphasis added). Why not? Jackson does not tell us, but Rawls does. In effect, Jackson’s practice trumps his theory, a theory that suggests that there is some /ingua franca in contemporary political thought other than liberalism to explain the restraint exemplified in his own practical judgment. Such a /ingua franca is not, for example, likely to be found in Jesus’ parables or St. Paul’s discussion of dikaiosune (justice), hence even Jackson (like Hittinger and Douglass) practically ends up a political liberal in spite of himself.*" It must be admitted that being unwilling to bring all of one’s religious convictions into the public sphere does not entail that one is unwilling to bring any of them; for example, those that are supportive of public reason, as I will argue later.

26 The Original Position This is quite different, I think, from being willing to impose controversial religious beliefs on others. Jackson's bind is as follows. He is theoretically committed to the priority of

agape over (liberal) political philosophy because of his fear of the Bedlam we would reach on any basis other than agape; yet in practice he will not demand that others accept a particular political arrangement out of love. His response to this bind is, contrary to his intention, much more like postmodernism than anything in Rawls: one needs to be ironic about one’s agapism.*” As we will see, one of the reasons for being suspicious of this postmodern sort of ironic playfulness in political philosophy is that as a consequence the crucial link between ignorance and fairness may be put in jeopardy, a link concerning which political liberals are anything but ironic and playful despite the fact that the original position is a device of representation like a play. If one does not know which of five pieces of cake one is getting when cutting it, and if one really likes cake, then it makes perfect sense to take the cutting of the cake seriously and to cut the pieces fairly.” Even if one is a Jackson-like agapist one must somehow nullify the effects of

contingencies that put people at odds and that tempt them to exploit natural or social circumstances for their own advantage. [hese circumstances, as is well known, include one’s place in society, class, social status, natural assets and abilities, intelligence, and psychology (e.g., one’s tendency toward optimism or pes-

simism). Nor does one know one’s conception of the good or the level of civilization that one will enter when incarnated as the veil of ignorance is pulled back. However, in order to be fair behind the veil of ignorance (indeed in order to make any decision at all behind the veil of ignorance) one needs some knowledge, for example, that regarding principles of human society in general and of economics in general. he precise knowledge and ignorance requisite for the original position is not meant to encourage “bargaining” there, but to prevent one from tailoring principles to one’s own advantage. One should remember the altruism, if not the full-fledged Jackson-like agape, in the original position: each is forced to choose for everyone (as is implicit, as well, in Kant’s ethics).’[o each according to his threat advantage is no¢ a legitimate principle of justice because it would definitely not be chosen in the original position.” Moral philosophy is nonetheless a part of the theory of rational choice such that considerations of probability are bound to enter. It is, of course, possible to wish (as perhaps Jackson does) that citizens be perfect altruists. This would have the advantage of removing the uncertainty in the original position, but then one wonders why, if people we deal with in political circumstances are perfect altruists committed to the priority of agape, there are so many disputes regarding basic political issues. My own experience from teaching for twenty-three years in religiously affiliated uni-

versities is that even among those who are, at least in theory, committed to what Jackson calls “the priority of agape,” there is no shortage of political disputes that need to be resolved by means of some fair decision-making procedure or other.*

The Original Position 27 Political liberalism is not entirely divorced from the notion of homo ludens, however. We have seen that Rawls himself compares the original position to another device of representation: a theatrical performance. And the procedure in-

volved in entering the original position is like joining a game with its tacit understandings and explicit obligation to play by the rules and be a good sport. In order for games to be enjoyable for all involved they must be fair, and something analogous can be said about political discourse and procedures: they must be open to all in order for them to approximate justice. But it is important to see exactly what sort of political procedure Rawls has in mind, because a misunderstanding here will have far-reaching consequences elsewhere, for example, regarding the canard that justice as fairness rests on a (mechanical) procedure alone and never consults the religious (or philosophical) beliefs of citizens.” It is important to respond to this misconception in order to adequately understand the implications of the Rawlsian view for religion. A distinction should be made at the outset between perfect (or imperfect) proceduralism, on the one hand, and pure proceduralism, on the other. In perfect procedural justice there is both an independent criterion for what is a fair outcome and there is a procedure that is sure to give the desired outcome, as in the aforementioned case of having the person who divides the cake (and who likes cake, has a sure hand, etc.) get the last piece. In imperfect proceduralism there is also an independent standard for fairness, but the procedures used to get at the desired outcome are heuristic devices and not algorithms. For example, the rules of evidence in a courtroom trial do not always yield the right result, even if they do so most of the time. O. J. Simpson either killed Nicole or he did not (the independent criterion), regardless of what evidence was presented at his trials; trials which, by the way, reached different conclusions. By contrast, in pure procedural justice there is no independent criterion for the correct outcome, much less procedures for getting there. Rather, there is a correct procedure in itself in which any agreements made by the participants are fair. Even if there is an independent standard for the correct outcome regarding concrete political matters, and Rawls nowhere denies that there is such a standard, it seems practically impossible to find a procedure that will invariably give us this outcome because it 1s always possible that legislative bodies or other rulers will enact unjust legislation, and judges and juries who apply principles to particular cases are even more prone to error. Even procedures that seem sacrosanct (majority rule, one person-one vote) can be unreliable, a fact that we might not notice when we consider the worse evils associated with their opposites (e.g., minority rule). Hence if there is an independent standard in practical politics, the best we

can hope for is imperfect proceduralism. But whereas legislative and judicial processes may be examples of imperfect procedural justice, what goes on at the more theoretical level in the original position is an exercise of pure procedural justice on the analogy of a fair game.*”

28 The Original Position It would be correct for religious believers to conclude that the pure proceduralism found in the original position rules out the possibility that in this context political outcomes can be settled by appeal to God’s law. And this may lead them to fear pure proceduralism. But it should be stressed that Rawls does not in every context rule out appeal to God’s law, as we will see in detail later. Reflective equilibrium entails a back and forth movement between the pure proceduralism of the original position and our inherited (e.g., religious) beliefs, whatever these latter might be. Each holds in check the other. Although any reasonable being can enter the original position at any time, it is not a historical phenomenon like a constitutional convention or like our comprehensive religious doctrines. In order to maintain the purity of the original position’s pure proceduralism, and in order to do well the job of this moment in the overall process of fair political decision-making, the participants should think of themselves as free to be self-authenticating sources of valid claims. [hey are constrained only in the sense that they must be fair and have as their goal the elimination of injustice.” Rawls is quite willing to grant to his critics that any liberal view is substantive as well as procedural in some sense. In fact, the two are, although theoretically distinct, actually connected in the sense that the fairness of political procedures includes the value of giving all an equal chance to present their cases in the effort to influence the substantive outcomes of the procedure. It makes no sense to oppose procedural justice (whether perfect/imperfect or pure), on the one hand, and substantive justice, on the other. That is, procedural justice cannot stand on its own without substantive justice and without inherited (e.g., religious) beliefs that hold it in check as part of the process of reflective equilibrium. Certain relatively fixed points that are part of our historical legacy (e.g., the belief that slavery is wrong) stand in the background as substantive checks, showing the possible defects in any pure proceduralism that would claim to stand alone in the effort to establish a theory of justice.” Justice as fairness is substantive in at least this sense: it springs from the history of liberal thought as detailed earlier and from the larger community of political culture of democratic societies. But it is not substantive in any more substantial sense (not a redundancy) in that it aims to leave various comprehensive religious (or philosophical) doctrines intact and criticizes them only insofar as they are, from a political point of view, unreasonable. Although this liberal stance is not perfectionistic, there is nothing unheroic about it when it is considered that Rawls is aiming at justice and not at mere legitimacy: a ruler who comes to power legitimately may end up ruling quite unjustly. Legitimacy actually allows for a certain range of injustice that the Rawlsian view cannot allow.” Justice as fairness is also substantive in the peculiar sense that justice itself is

the first virtue of social institutions, as truth is of comprehensive systems of thought. Untrue theories should be revised or rejected, and social institutions, no matter how efficient, should be revised or rejected if they are not just. Injustice is

The Original Position 29 tolerable only when it is necessary to avoid a greater injustice, not when it is to the advantage of some over others: justice is an uncompromising (i.e., substantive) virtue. But it is still only one of the virtues, and Rawls has never claimed to have

done more than offer a theory of justice. Many of his critics (including me, at times) have unfairly taken him to task for not trying to accomplish more, but it now seems to me that we should try to assimilate Rawls’s enormous accomplishment within his own chosen limited scope. He has shown in meticulous detail how and why, in democratic societies, everyone should be assured an equal liberty to pursue whatever religious or other plan of life he or she pleases as long as it does not violate the demands of justice, whether negative (e.g., not to harm the innocent) or positive (e.g., to show mutual respect).” Like any good moral principle, a principle of justice should be general; public and open to individuals in any generation; universal in application, in the sense that it should hold for everyone in virtue of their being moral patients (Rawls says “moral persons”); impose an order on conflicting claims so as to avoid cunning, lies, and an appeal to force; and final, in the sense that citizens should not be looking beyond justice to some further court of appeal. Although justice is but one moral principle, it is such an important one that it is well worth the effort to really concentrate on a (pure) decision-making procedure so as to make sure that we have it right, and have it in such a way that even those who do not share the same religious (or philosophical) comprehensive doctrines can nonetheless share the same political conception of justice. The good of justice assures everyone the political basis of self-respect.

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CHAPTER THREE

THe ReasoNaBLeE AND THE RATIONAL

Te far I have not said anything about the famous two principles of justice that would be agreed to in the original position, or about how they relate to religion. In this chapter I will start by showing how these two principles relate to religion. [he version of the two principles found in PL, which reiterates with only small changes the version found in TJ, is as follows: 1. Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value. 2. Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society. This recent version of the two principles still grows out of the concern expressed at the beginning of TJ, that the spiritual aims of individuals may be very much opposed just as the aims of different religions are opposed, hence it would not be rational in the original position to agree to a principle that would require lesser life prospects for some for the sake of a greater sum of advantages for others

(utilitarianism). Given these opposed spiritual or religious aims, the rational choice would be to insist on equality of basic rights and duties unless social and economic inequalities generate compensating benefits for everyone, particularly for the least advantaged. ' The freedom of religion and liberty of conscience included in the first principle (the equality principle) should not be trivialized or taken for granted, especially because the denial of freedom of religion can be devastating for sincere religious believers. Rawls knows this. The equality principle (the first principle) and the difference principle (the second principle) are arranged in serial order to show this importance. Freedom of religion and liberty of conscience cannot be 31

32 The Reasonable and the Rational bargained away for the sake of social or economic gain. As before, the only legit-

imate reason for circumscribing freedom of religion or liberty of conscience would be if not doing so would lead to lesser freedom of religion or liberty of conscience. Concerning the difference principle, however, we should imagine an initial situation where social and economic goods are distributed on a strictly egalitarian basis and then ask of any scheme that would lead to inequalities: 1s everyone, especially the least advantaged, made better off as a result?

It is a commonplace in the Abrahamic religions (Judaism, Christianity, Islam) that all persons are brothers/sisters. It is a defect in many political philosophies, however, that they neglect fraternity due to an overly zealous desire to ac-

centuate the important ideas of liberty and equality. The difference principle roughly corresponds to the meaning of fraternity: not even wanting to have greater advantages unless these are to the benefit of others. This is obviously not to forget liberty, which corresponds to the first principle and to the first part of the second principle. These two principles—and the corresponding ideas of liberty, equality, and fraternity—are what a person would choose for the design of society in which his or her enemy is to assign him his place.’ As Jones rightly notices, but perhaps overemphasizes, human sinfulness is such that we cannot rule out the possibility that we will have enemies.

Of course in the original position the participants do not assume that the other participants are malevolent. But it just so happens that they choose principles that would protect them if other participants in fact turned out to be bad apples. They are protected against such a contingency even if they do not plan for it: this is the maximin solution. The principles chosen and ranked in the original position are meant to illustrate ideal theory, but they also guide our application of justice in nonideal situations.“ The first principle involves equality regarding basic rights and liberties, freedom of movement and free choice of occupation against a background of several opportunities, the chance to hold offices and positions of responsibility in political and economic institutions, income and wealth, and the social bases of self-respect. These are not self-evident, although they would in fact be chosen and justified in the original position. “Lexical ordering” means that these features of the first principle must be met before the difference principle even comes into play. This prevents something like political prostitution when, say, basic liberties are sold off at a profit. Basic liberties, once again, can be restricted only for the sake of liberty itself. An objection might be raised at this point by those who, like Hittinger, appeal to preliberal political values: societies, it will be alleged, have other ways of affirming self-respect than through the liberal priority on liberty evidenced in Rawls’s lexical ordering of the two principles. In a feudal system (or in a caste system, such as in traditional Hinduism) self-respect comes from the appreciation of one’s alloted station in the natural order of things as sanctioned by religion and

The Reasonable and the Rational 33 theology. (Think of Aristotle’s notion of a natural slave —doul/os—and its perva-

sive influence on medieval Christianity and Islam.) On this view everyone is equally noble in the eyes of divine providence.° The appeal of preliberal political values for many religious believers leads us to take this view seriously. But there are several obvious problems with this view and with its concomitant denigration of lexical ordering. First, this view solves the problem of social justice by means of a priori elimination: the basic structure is said to be a/ready determined and is not something for human beings to tamper with. This is a bit too facile, however, when it is noticed that some people, at least, question their “natural” position in society and do not resign themselves to it. These people must be answered with reason and not with sheer force or deception (e.g., with a “noble” lie’). And second, once we try to respond to those who are not convinced that social arrangements are part of the natural order, it seems we are eventually led to something like the original position and its lexically ordered two principles, so as to fairly ameliorate disputes between the rulers in a feudal system (or members of the Brahmin caste in a caste system) and those who question the legitimacy of this system. Io cite an example close to (my) home, presumably without any additional native intelligence than my ancestors, I find myself a university professor whereas they were Polish peasants. Was it entirely “natural” that they found themselves in a lesser social station than I find myself >?*

Let us now move to the difference principle or the maximin rule (“maximin” means maximum minimorum, to maximize the status of the least members). This principle has some teeth to it in that it is not intended to allow someone to gain a billion dollars provided he increases the situation of the least favored by one penny. Disparities in wealth result, however, because some people are obviously more talented than others and it would be unjust not to encourage them as best we can to develop their talents. But the disparities allowed will be much less than those that have persisted throughout history. This is because we should reject as inadequate certain previous views. For example, it will not do to say that the proper level of the social minimum should depend on customary expectations, because this really provides no criterion whatsoever regarding what this level should be. And it will not do to say that the right level depends on the average wealth of the country such that the minimum rises when the average rises. his utilitarian view would leave intact the blatant use of certain poorer individuals to prop up undeserved wealth for others in the determination of the initial average. Further, the vaguenes of this utilitarian view would make it more difficult to apply than the difference principle. The difference principle, by way of contrast, suggests that the minimum is to be set quite simply at that point that maximizes the long-term expectations of the least advantaged group. This can occur through several different mechanisms: redistributive capitalism, wherein consumption or income is taxed; “soft” socialism; and so on. In any event, there reaches a point where increased taxes interfere with the prospects of the least advantaged themselves, hence no further increase is called

34 The Reasonable and the Rational for. he same could be said regarding the rate of savings required for capital accumulation so as to raise the level of civilization in future generations: when people are poor in general and saving is difficult, a lower rate of savings would be required; and when people are wealthy in general, a greater savings rate would be required.’ By making the difference principle easy to understand, we are also reducing

the liklihood of intractable conflicts: greater wealth is justified not merely by showing that no one was harmed or left in the same condition, but rather by showing that others (particularly the least advantaged) were actually 4e/ped in the long run by the greater wealth. The phrase “in the long run” is needed for several reasons, not least of which is that it would also be unfair to spare others the consequences of their lack of foresight or self-discipline, as in the gospel story of the talents. It should be noted, however, that distributive justice, in general, is open to wider differences of reasonable opinion than differences regarding the prior equality principle.” One should be frank about the fact that one of the reasons for the difference principle is the need for incentives. But there are other reasons that are of interest to religious ethicians, including a noblesse oblige desire to bring the talents of gifted individuals to bear positively on the lives of those not as talented. Further, it would be unreasonable to stop with the prior equality principle, about as unreasonable as the (libertarian) error of claiming that there ought to be no social contract at all, that the difference principle indicates a capricious interference with strictly private economic transactions. Regarding the former we should ask: Why should we deprive the least advantaged of the benefits they would receive as the result of the efforts of talented individuals? And regarding the latter, libertarian alternative we should (and will) ask: Are there such things as purely private economic transactions that are not made possible by, and do not have an effect on, society as a whole?" It might escape our notice that it counts in favor of lexical ordering and of the difference principle that they prevent such vast differences in social goods

that people may be willing to “convert” to another religion so as to be treated more fairly. That is, in a just society conversions should be the result of conviction, reason, or divine influence rather than for reasons of persecution, power, or wealth (stranger things have happened historically). Nonetheless it is only the first principle that should be enshrined in the constitution of a democratic republic in that (re)distributive principles and regulations regarding social inequalities do not seem practically suitable to constitutional restrictions. But this does not mean that the difference principle is not to be taken seriously. Despite lexical ordering, the difference principle 1s, from the perspective of the original position, essential to a just society.” Thomas Pogge has rightly pointed out that the difference principle is a contemporary articulation of Jesus’ exhortation (Matthew 25: 40) that whatever is done to the least is, in effect, done to him. And to claim that we should love our

Lhe Reasonable and the Rational 35 neighbor as we love ourselves is not to say much if “neighbor” is restricted, as it often is, so as to exclude the least advantaged.’’ The ease with which these allusions to scripture can be made, as noted by several commentators on the difference principle, leads Philippe Van Parijs to the following somewhat un-Rawlsian question: What constraints does a commitment to maximin justice impose on one’s 77dividual ethics as a religious believer? His answer is that once maximin institutions are in place our duty would merely be not to cheat or bend these institutions, and strict compliance with this duty would enable the maximin principle to be more egalitarian than it would otherwise be. But it does not entail a duty to otherwise help the poor, for this would be a redundancy. That is, in a well-ordered society one could with equanimity spend much of one’s time and money collecting works of art or supporting the local professional sports team, provided the money thus used did not exceed maximin requirements. However, according to Van Parijs, we live, at best, in a partially well-ordered society (he actually calls it “ill-ordered”), hence we have a duty to be more demanding of ourselves in order to make up the difference between what present institutions do and what well-ordered ones would do. His thought-provoking way to make the point is that “Even if Rawlsians need not be Christians in a well-ordered society, they may well, after all, have to be (something like) Christians in the real world.” I assume that he could have just as easily said “Jews” or “Muslims” or “Buddhists,” and so forth. Both Pogge and Van Parijs see much more than the superficial connection

between the difference/maximin principle and Christian ethics claimed by Jackson. The deeper connection between the difference principle and Christian ethics is also unwittingly supported by Mulhall and Swift in that political liberalism enables us to understand better the religious aphorism that “But for the grace of God there go I.” No one deserves to be born with a high (or low) IQ, nor does one deserve to be born into a wealthy (or poor) family: the difference principle represents a rational agreement within the original position to regard the distribution of natural advantages as a common asset. [his commonality is supported by a concept of chain connection or close-knitness whereby if an advantage raises the expectations of the lowest position it raises the expectations of all in between. Or again, there is another version of lexical ordering that supports the communal na-

ture of the difference principle: first maximize the welfare of the least well off, then the second worst off, and so on, until a well-ordered society results." Contrary to a caricature of Rawls often given by, say, liberation theologians or members of the Foucaultian left,’® Rawls is very much aware of the fact that the political liberties protected by the equality principle must be connected to the difference principle in order to be given their fair value. It is easy for poor members of society to withdraw into apathy and resentment such that their political liberties do not mean as much to them as they should. Thus, great disparities in property and wealth are not only violations of the second principle, but of the first as

36 Lhe Reasonable and the Rational well, a view that has serious implications for the practice of, in effect, the sale of politicians through political contributions, as we will see. Further, below a certain level of material and social well-being, training and education, and health care, people simply cannot realistically take advantage of the merely formal equality they have as citizens. Rawls does believe that the effects of injustices in the political system are, due to considerations pertaining to lexical ordering, more grave than the effects of market imperfections, but this is not to deny that market imperfections have grave consequences, a fact that those on the Christian left and right should not ignore.” In justice as fairness the two principles of justice are prior to considerations of efficiency for several reasons. One 1s that there are several efficient ways of distributing wealth, including certain forms of serfdom, which it 1s reasonable to reject.’® And in order to determine which distributions of wealth are reasonable, we must approximate our way toward reflective equilibrium, which can be seen as a coherence constraint wherein we are concerned with the best overall fit between theory and data. Sometimes we must make adjustments at both ends, as is done in science, so as to keep both our theory and our data gathering honest.”” In addition to the two principles of justice, there are two terms in Rawls that must be distinguished. As a matter of fact, almost all of the issues treated by Rawls, including the two principles of justice, presuppose an understanding of the distinction between the reasonable and the rational. These two terms are not synonymous and they must be clearly explicated in order to adquately respond to certain religious ethicists who either think that the “inarticulate” nature of Rawls’s epistemology requires an inordinate amount of exegetic industry so as to figure out what he means by “reasonable” and “rational” (Nicholas Wolterstorff) or who assume that justice as fairness encourages a crafty, calculating, basically Hobbesian view of human intellect. After distinguishing the reasonable and the rational, I will deal both with Wolterstorff’s criticisms of Rawls’s epistemology and with Robert Audi’s Rawls-like response to Wolterstorff. In actuality, by knowing that people are reasonable we realize that they are willing to govern their conduct by principles they can share in common with others, and reasonable people likewise take into account the consequences of their actions on others. [he reasonable is a part of the idea of society as a fair system of cooperation. It is not overly altruistic, nor is it strictly self-serving. Rather, by the reasonable Rawls refers to a type of reciprocity that lies short of complete impartiality or saintly altruism, which, if enough beings possessed it, would eliminate the very need for principles of justice. Conversely, people are unreasonable when they are unwilling to honor standards specifying cooperation with others. Unreasonable persons are ready to violate such terms so as to suit their interests when circumstances allow. In Rawls’s stipulative use of terms, by knowing that people are rational we do not know what ends they will pursue, but we do know that they will pursue them

The Reasonable and the Rational 37 intelligently. Here a person chooses the most effective means to ends, or selects the more probable alternative. But rationality is not restricted to means-ends deliberation, as it can also balance final ends themselves. Rational agents can, in fact, be solely self-interested, but they can also have any number of affections or loves for persons, and they can have attachments to communities.” The reasonable and the rational are theoretically distinct ideas. The reasonable is the part of moral sensibility that connects with the idea of fair social cooperation; and, it should be emphasized, it is not derived from the rational, as it is in

David Gauthier’s egoism. Although the ideas are distinct, they are nonetheless complementary and neither can stand without the other. It is true that the rational is not public in the way the reasonable is in that its concern 1s not to propose fair terms of cooperation and to abide by them, as is the case in reasonableness. We need to be reasonable in modern society precisely because of its numerous offices and positions, its various divisions of labor, its many social groups—including ethnic groups, and so on. There are many hard decisions concerning these divisions that have no clear answer, hence the need for reasonableness. The hope even in PL, however, is that reason will lead us to the truth and that the truth is one; or at least we ought not to rule out these possibilities at the outset. We can, at the very least, even in a pluralistic society, narrow our differences by endorsing our convictions in a reasonable way.”" Another way to locate the difference between the reasonable and the rational

is to say that the former consists in a capacity to honor fair terms of cooperation whereas the latter consists in a capacity to have a conception of the good and how to reach it. These two moral powers constitute the necessary and sufficient conditions for counting as a full and equal political member of society. It can be said that the original position requires the parties to be reasonable even to enter; they must have a sense of justice and the ability to abide by fair terms of cooperation, an ability exhibited by their willingness to be subjected to the restrictions that characterize this position. But once in the original position, the parties are rational in the sense that, given the restrictions of this position, they are supposed to advance the interests of themselves and the parties they represent, including the good of the least advantaged members of society.” To be reasonable is not necessarily to express the truth or validity of moral judgments; it is rather to be fair in the attempt to examine such judgments for their truth or validity. The concept of truth held so dear by religious believers is not rejected or even questioned in political liberalism, but it is left to defenders of particular comprehensive doctrines to use or deny. Io be reasonable does express a reflective attitude toward toleration, and this because citizens are reasonably viewed as free and equal. More substantive views of the human person are not denied, nor are they affirmed in a political context, even if they can be affirmed in other (especially religious) contexts. The political is but one part of the moral life. Hence there is no lexical ordering between the reasonable and the rational, even if it makes some

38 Lhe Reasonable and the Rational sense to say that it takes a reasonable person to knowingly enter and abide by the rules of the original position and a rational person to deliberate there.” It is to be assumed that those in the original position are rational. That is, in choosing between principles each tries to advance his or her interests. Once again, they assume they want more primary goods rather than less, but they can refuse these if they wish for religious reasons when the veil of ignorance is lifted. Behind the veil one does not know what one’s conception of the good will be, although one does know that his or her good is determined by what is the most rational plan of life for that particular person given the circumstances. This determination, of course, will be held in check by the principles of justice that are chosen. Rawls agrees with Royce that a human person can be viewed as a life lived according to a plan; a person says who he or she is by describing her purposes and causes and what she intends to do. This plan is rational if it would be chosen with full deliberation: with full awareness of the relevant facts and after careful consideration of the consequences.” Even given full deliberative rationality, however, several rational plans of life are possible. For example, I could have led a good life as a college professor, a lawyer, or as a basketball coach. A plan is to be criticized only if it would not be in-

telligent to choose it in light of the facts or if it is at odds with justice. And it should be noted that a rational plan of life is not a detailed blueprint for action striking across the whole course of life, but rather a rough roadmap that is subject to change, as in the choice of a profession. The question of what to do with our lives is always there, although in premodern societies one’s identity tended to be more attributed than achieved. Religious believers may be worried that a Rawlsian rational plan involves maximizing the expected net balance of satisfaction, but the matter can easily be put less hedonistically and in Aristotelian terms: it is rational to try to realize one’s most important aims.” Because of our inability to know the outcome of future contingencies, our knowledge of what will happen if we choose this or that aim is incomplete; and this is a major source of human unhappiness. A rule of thumb is that we should deliberate rationally up until the point where there is likely benefit of improving our lives as a result of the deliberation. It makes perfect sense to follow a satisfactory plan rather than wasting time looking for a flawless one. Even a (merely) satisfactory plan, however, has a certain unity or a dominant theme. In most cases this involves an arrangement of things at the earlier stages so as to permit happiness at the later ones. And in most cases in modern society this involves rising expectations over time. Rational plans regarding “the good life” are thus neither arbitrary nor algorithmic.” To conceive of goodness as rationality does not mean that one who pursues the good is continually planning and calculating. This is because a good life or a happy life is not one taken up with deciding to do this or that, but with following through on general plans. More precisely, there definitely is some degree of rational

The Reasonable and the Rational 39 calculation within the original position, but: (1) even here a rational plan of life is hardly dominated by calculation—even rationality is reflective and deliberative; and (2) the willingness to accept the restrictions of the original position is a reasonable one that indicates a serious commitment to justice.”” The distinction between the reasonable and the rational is directly related to that between the two main concepts of ethics: the right and the good. In teleological theories the good is defined independently of the right, such that differing teleological theories (e.g., Aristotle’s versus Nietzsche’s) are at odds primarily in terms of how the good is specified. By way of contrast, justice as fairness is a deontological theory, which means, strictly speaking, that it is nonteleological. It means that in justice as fairness the right is prior to the good. It does not mean that it is nonconsequentialist in that all ethical views worthy of attention take the consequences of actions seriously; not to do so would be “irrational, crazy.” The contrast between teleological and deontological theories is highlighted by the fact that in the latter something is good only if it fits into ways of life consistent with the principles of right (justice as fairness) already at hand.” These principles of right (e.g., the equality principle and the difference principle) presuppose a reasonable desire to think in terms of the restrictions that characterize the original positon. The rational thinking that goes on in this position does not so much depend on how much the participants know as on how rationally they think regarding the information they have, however incomplete. Even in ‘TJ, and especially in PL, Rawls is committed to the idea that fairness requires that we reach agreement regarding principles of right, but not necessarily that we do so regarding a theory of the good since each person is free to plan his or her life as he or she pleases as long as that person does so in ways that are consistent with justice. Only a “thin” theory of the good (which includes the primary goods anyone would be reasonably expected to desire, whatever his or her view of the good) is needed at the outset, with a “thicker” view affirmed after the veil of ignorance is lifted.” In fact, it is a good thing that individuals’ conception of the good differs in some ways, whereas this is not the case regarding concepts of the right. At the very least this judgment 1s aesthetic in character: great music, like a just society, requires some common theme(s), but not necessarily the same individual notes played over and over. loo much unity leads to monotony, not an enriching aesthetic experience, just as too much diversity with no unifying theme(s) leads to cacophony or chaos. Individuals find their good in different ways in democratic societies such that there is no urgency to reach a publicly accepted notion of ¢he good (with the emphasis needed here on the definite article). Rather, we should try to put ourselves in the shoes of other citizens to see things from their standpoints. Once again, this difference of opinion should be seen, within the limits of justice, as a good thing in itself. Human beings have various talents, the totality of which is not realizable by any one person or group: a flourishing diversity can lead to an enriched sense of social cohesion.”

40 Lhe Reasonable and the Rational Consider what the consequences would be if society did not insist on the priority of the right. Suppose the majority in a particular society had a distaste for a certain religious group, indeed they saw the group as an “abomination” and literally hated members of this group. (Historically, for example, the Jews have been the object of this sort of hatred.) In teleological theories where the right is not necessarily prior to the good, this group would be severely threatened, but in justice as fairness the intensity of the hatred in the majority carries no weight. We can take action against members of this religious group only if they have violated justice. In this example we can see why the partial indeterminacy of a full theory of the good is not only not a problem, but an asset in political philosophy in the effort to move as speedily as possible to just institutions regardless of existing sentiments.” The unity of the person is manifest in the coherence of his attachment to the right and his conception of the good. Or again, groups of persons can also aspire to achieve such coherence, as when a community of ‘Trappist monks, say, work for the glory of God. Although there is no algorithm for settling on our good, the reasonable priority of right and justice allow us to constrain our deliberations when some of us, even some of us who are religious believers or monks, are not working for the greater glory of God. Teleological theories, from the perspective of political liberalism, unfortunately have a tendency to define the good locally while assuming they are doing so universally. ‘To see the right as prior to the good is to conduct oneself in a certain way, in a just way, when a// human beings are seen as free and equal.” It is because the reasonable is in a certain sense prior to the rational (although neither can exist in absolute independence of the other) that the right is prior to the good, excepting, of course, the thin notion of good assumed in the original position. Politically we find ourselves divided, both positively and negatively, by so-

cial classes, doctrinal confessions, race, and the like, such that no reasonable religious (or philosophical) doctrine can be affirmed by all citizens, although there is some hope that we can agree (politically) to disagree (religiously or philosophically). This priority of the right decidedly does not mean that a political conception of justice cannot make use of any any ideas of the good, except perhaps those that are purely instrumental or those that are a matter of preference or individual choice. Rather, the right and good are complementary. Some notion of good is necessary for the moral life, and several are distinct possibilities so long as they are within the limits set by political justice: claims that citizens make to pursue ends that transgress these limits have no weight because they are unreasonable from the perspective of those who have agreed to enter the original position. “Thus, while justice draws the limit, and the good shows the point, justice cannot draw the limit too narrowly.”**

Another reason for the priority of the right—in addition to the pressing need to find a means to live justly with others who have different comprehensive doc-

Lhe Reasonable and the Rational 41 trines (religious or nonreligious) from our own—is that a procedure to get at the right (the original position with its veil of ignorance) is more likely to succeed than any procedure to get at the good or at the truth. (We will see later that Rawls is not necessarily committed to skepticism here.) Not even the investigations of science or scholarly methods can be guaranteed, not even in the long run, to get at the truth, but we can be sure that a certain method, zf followed, will guarantee fair treatment. If the rationally autonomous representatives in the original position are constrained by the reasonable conditions of that position we can be assured of fairness at the abstract level. Obviously the veil gets thinner as the task at hand gets more and more specific, as in legislative bodies or courts of law. The key point is that nonpublic reasons (as found in various comprehensive doctrines, whether religious or nonreligious) are not conceptually prior to public ones if the latter support the flourishing of the many different types of the former.” We have seen above that Wolterstorff is skeptical of the epistemology that underlies Rawls’s concept of the reasonable. And he holds that in a society in which all had the same religion (i.e., the same comprehensive doctrine), the very need for a liberal democracy would be greatly reduced. But we do need liberal democracy, he thinks, because we do not all share the same religion. His skepticism comes into play when defenders of liberalism like Rawls encourage a re-

straint on the use of religious reasons when debating political issues. Such a restraint, Wolterstorff thinks, may very well violate the equal freedom component of political liberalism itself and would perhaps lead many citizens to dissembling as they concealed their real (religious) reasons when they engaged in public debate. It should be noted that Wolterstorff’s skepticism regarding Rawlsian rea-

sonableness is connected to his skepticism regarding the possibility of overlapping consensus. That is, according to Wolterstorff there is no more hope that “reasonable” citizens will agree about principles of justice than they will agree about some comprehensive religious (or philosophical) doctrine. Another way to

put this point is to suggest, as Wolterstorff does, that Rawls is surprisingly searching for a political community, albeit at the political level rather than at the level of comprehensive religious (or philosophical) doctrine. This Rawlsian communitarianism, as Wolterstorff uses the term, has the effect, he thinks, of silenc-

ing any appeal to our diverse religious beliefs and of disrespecting the particularity of individuals. For example, Rawlsian reasonableness would prevent Christian environmentalists from making their case through appeal to environmental-friendly passages in the Bible. They not only have a right to such an appeal, according to Wolterstorff, they also should be left alone by political liberals like Rawls who would encourage them to forego this right.” We will see later that Wolterstorff is not quite accurate in some of his claims about what Rawls’s views are. Here we are concerned with his fear that Rawlsian reasonableness actually involves two quite different things (1.e., a willingness to cooperate as well as epistemic well-groundedness) and that only one of them is thoroughly

42 Lhe Reasonable and the Rational explicated by Rawls himself (the willingness to cooperate part). We also need to consider reasonableness as epistemic well-groundedness in order to understand how a liberal Catholic, say, can see an orthodox Jew as having good reason, given her background beliefs and experience, to commit to Judaism, even though Catholics, who have somewhat different beliefs and experience, lack any such epistemic reason. The two facets of Rawlsian reasonableness are both needed, as is illustrated when we

notice the inadequacies of someone who was reasonable in the sense that he was willing to cooperate with others, but who was irrational in epistemic matters (e.g., he could not follow arguments, he asserted contradictions with equanimity, etc.). A certain degree of epistemic competence is required for people with different comprehensive religious (or philosophical) doctrines to communicate effectively and for overlapping consensus to occur.

A Rawlsian view of epistemic well-groundedness, especially as it relates to the issue of religious reasons in political debate, is ably defended by Robert Audi, who makes it clear that it is possible for a citizen to have overdetermined beliefs regarding moral and political matters, as when one has do¢h sufficient religious reasons and sufficient nonreligious reasons to tell the truth. A similar example would

be that of the Christian environmentalists mentioned by Wolterstorff himself: in addition to religious reasons, it is obvious that there are also good nonreligious reasons to avoid exploitation of the natural world. Because a political liberal prefers persuasion to coercion, a political liberal who is a religious believer will willingly seek out nonreligious reasons when defending his or her political beliefs in front

of those who do not share her comprehensive religious doctrine. On matters where she can find no sufficient nonreligious reasons, but only religious ones, it is appropriate for her to resist the effort to try to make these strictly religious beliefs matters of public policy. It should be emphasized, however, that the overlap in mature religious believers between their religious reasons and their nonreligious reasons is a model for Rawlsian overlapping consensus itself among individuals with different comprehensive religious (or philosophical) doctrines.*® Audi builds on Rawls’s idea of reflective equilibrium (discussed later) in defending “theo-ethical equilibrium.” This latter equilibrium is reached when there is an integration in political matters between our religious reasons and nonreli-

gious ones. When a sound moral argument conflicts with religious belief, we should scrutinize both for possible error; the same could be said if an established

part of religious tradition conflicts with a nonreligious belief. If God is omnibenevolent (among other divine attributes), Audi thinks, we should actually expect to achieve theo-ethical equilibrium, rather than the disequilibrium anticipated by Wolterstorff wherein our cherished religious beliefs just cannot be articulated in nonreligious terms. Audi, however, notes that the ten commandments that deal with ethical issues have already been given convincing nonreligious support, and the religious commandments are not appropriate candidates for public policy in a pluralistic society in any event.*”

Lhe Reasonable and the Rational 43 When public policy restricts or coerces human conduct, it is especially important that one offer adequate nonreligious reasons for the restriction; otherwise, nonbelievers (at the very least) would resent such restriction, a resentment that would not be in the long-term interests of the religious believers themselves. Surprisingly, Wolterstorff concedes this point to Audi when he says the following: I propose revising my initial formulation and henceforth thinking of the liberal position as incorporating the following as one of its core theses: citizens and officials are to base their decisions concerning (at least fundamental) political issues, and their discussion of those issues in the public space, on the principles yielded by some source independent of any and all of the religions found in society. This thesis .. . is silent on whether citizens and officials may also base their decisions and public discussions on religious considerations.”* If the religious believer is thrown into disequilibrium when asked to give nonreligious reasons for public policy, there is likely to be an error either in the policy or in the supposed religious given. Further, Audi is committed not only to nonreligious evidence for public policy decisions, but also to nonreligious motivation. That is, the nonreligious evidence is not offered with bitterness as a concession to a hated defender of a comprehensive doctrine different from one’s own. Kant, it should be remembered, distinguished between acting merely in conformity with

duty and acting from duty; and Aristotle distinguished between actions that merely expressed virtue and those done “in the right state.” A similar point is being made here regarding the willingness a religious believer should exhibit when giving nonreligious reasons in a public context. Audi is especially helpful regarding how believers in some comprehensive religious (or philosophical) doctrine or other should speak in a civil way so as to convince those who believe in a different comprehensive religious (or philosophical) doctrine that they are sincere in their commitment to democracy and to justice.”” The overall point here is that overdetermination is not to be equated with discord, nor with the privatization of religion, as Wolterstorff assumes. Nor should our disagreement at the primary level of comprehensive religious (or philosophical) doctrine dictate that we will disagree at the metalevel wherein we will try to deal with our differences in a fair way. Religious believers are allowed fu// participation in political debate and decision-making, but this 1s a far cry from unrestricted participation. Success can occur at this meta-(political) level even when religious con-

victions are genetically basic, as when a sense of Christian charity initiates and underlies one’s desire to increase foreign aid for the sick and poor throughout the world, a desire that would lead one to gladly search for the appropriate nonreligious reasons to achieve one’s goal. Fair-minded agapists who desire increased foreign aid can nonetheless desire a government that is not only neutral among religions but also neutral toward religion itself. In fact, Audi, along with Rawls, thinks not only

44 The Reasonable and the Rational that an overlapping consensus could develop, but to a large extent it has already developed in democratic countries regarding concepts like political and religious liberty and freedom of speech. The disagreements arise largely with respect to the details. Religious freedom first developed as a modus vivendi (stability as a balance of forces) then as a moral principle (stability for the right reasons).”” Religious believers themselves would find it loathesome to be coerced by the religious preferences of those who have a different comprehensive religious doctrine from their own. This is precisely why it is crucial to establish a second-order

“community,” to use Wolterstorff’s word, even if there is no real possibility of having a first-order one. The need for a second-order “community” is felt by Wolterstorff himself (in the long quotation above), who, like many critics of liberalism, has a view that is “more liberal than it looks,” to use Audi’s phrase. Further rapprochement with Wolterstorff’s view can be achieved by emphasizing that in political liberalism one is not so much excluding religious reasons for public policy decisions as encouraging religious believers to imc/ude nonreligious ones that are to be assessed on their own merit, even if they are nonetheless generated by religious reasons.”” Despite what has been noted above at various points regarding reasonable-

ness as the willingness to govern our conduct by principles that we share with others, it will be worth our while to show in detail why it is a mistake to associate Rawls’s political liberalism with individualism (or worse, with egoism). Robert Neville, for example, makes this association, as does Alasdair MacIntyre when he says of Rawls’s original position that it seems as if we had been shipwrecked on

an uninhabited island with a group of other individuals, each of whom is a stranger. Mulhall and Swift are alert here to wonder if critics like Neville and MacIntyre are doing nothing more than accusing liberals of being liberal. But there is a deeper concern here, a concern articulated best by Sandel: the concept of persons as antecedently individuated or unencumbered allows no room for the possibility that conceptions of the good and community might become constituitive parts of their identities.” This concern is actually a fear. The fear is, according to Stanley Hauerwas, that many contemporary Christian calls for justice implicitly reinforce liberal assumptions that undermine the character-building features of communal Christian life. Uhat is, political liberalism is not a moral strategy appropriate to the Christian calling because it yields only individual interest and conditions of distrust. Any liberal bonds that we have with others, the criticism goes, are impersonal rather than warm, personal, faith-oriented, and friendly. And we are not, as Hauerwas sees things, free to make up our own (liberal) story if our story is actually one of response and conformation to God.” An initial response to these criticisms is offered by Werpehowski, who observes that the “impersonality” or “coldness” of Rawlsian abstraction is, from a theological point of view, necessary to overcome sinful human tendencies so as to

The Reasonable and the Rational 45 ensure fairness for all. Political liberalism nonetheless allows (and encourages!) warm, friendly ties outside of political life, ties that are intimations of the mystical body of Christ or of the family of God. For Werpehowski the agreements in the original position render a “covenantal character” to political life: liberal talk of self-respect goes hand-in-hand with talk of mutual respect.” The parties 22 the original position are conceived as rational and mutually disinterested, but this does not mean that in real life they are individualists or egoists who are interested primarily in wealth, prestige, and domination. They are conceived as not taking an interest in one another's interests for the sake of method; the motivation of persons in the original position should not be confused with the motivation of persons in everyday life. They must assume that their spiritual/ religious aims may be opposed in order to accurately represent the problem that the original position is meant to solve. Or again, the parties in the original position are assumed to be rational in order to make their deliberations effective, but the mere fact that they are in the original position in the first place indicates their reasonableness, and hence the fact that they are not necessarily individualists or egoists. In fact, egoism is not so much an alternative conception of the right as a challenge to any such conception.” The original position, it should be remembered, is a game where the participants try to attain as high a score as possible for the parties they represent, but this does not necessarily mean that they want the other participants to get a lower score. It is one of the restrictions of the original position that the participants not be envious or vain. [his is conducive to an appreciation of the two principles of

justice, which require us to fairly consider the rights and claims of others. Religious believers should be consoled by the very interesting fact, usually not noticed by commentators, that:

the combination of mutual disinterest and the veil of ignorance achieves the same purpose as benevolence. For this combination of conditions forces each person in the original position to take the good of others

into account. In justice as fairness, then, the effects of good will are brought about by several conditions working jointly. The feeling that this conception of justice is egoistic is an illusion fostered by looking at but one of the elements of the original position.”

Despite the fact that this quotation provides an adequate response to those religious believers who think that Rawls’s view is too individualistic or too egoistic, some might still ask: Why not stipulate at the outset that parties in the original position be benevolent? Three responses are in order: (1) there is no need for so strong a condition if we can arrive at fair principles of justice without such a condition; (2) to attribute benevolence to parties in the original position would defeat the purpose of grounding the theory of justice on weak stipulations so as to avoid the charge of starting with an inflated and unrealistic view of human nature;

46 The Reasonable and the Rational and (3) if everyone were benevolent or saintly at the outset there would be no need for principles of justice: we would all, to use Rodney King’s phrase, just get along. As Rawls holds:

For a problem of justice to arise at least two persons must want to do something other than whatever everyone else wants to do. It is impossible, then, to assume that the parties are simply perfect altruists. They must have some separate interests which may conflict. Justice as fairness makes this assumption, in the form of mutual disinterest, the main motivational condition of the original position.”

Instead of defining the impartiality needed to resolve the relevant disputes in society by appeal to an ideal sympathetic observer, we can define it in terms of the litigants themselves. Further, the ideal spectator option conflates all persons into one. But the reasonableness that leads one to enter the original position indicates what Rawls calls “a love of mankind” that nonetheless preserves the distinction of persons. In short, nothing is gained and much is lost by attributing benevolence to parties in the original position. If we assumed that parties in the original position were motivated by benevolence or altruism they would only represent those whose freedom was restricted to choices compatible with benevolence or altruism; as it stands, however, all persons with rational plans of life are represented. Mutual disinterest in the original position is thus due not only to realism about the circumstances of justice, but also to methodological considerations so as to make the theory of justice manageable. Although parties in the original position are not prepared to abandon their interests, they are prepared to act justly. It is silly on this basis to assume that they are selfish in the ordinary sense of the term. This is because their willingness to act justly, the mutual respect they show to each other, involves a willingness to see the situation of others from ¢Aeir points of view and a willingness to give reasons for our actions whenever they materially affect others. The latter enables others to reasonably accept the constraints on their conduct.”* In the original position it is rational to agree to a principle of mutual aid, for not to have mutual aid as a duty would have a pervasive negative effect on the quality of everyday life. The matter is quite simple: individuals who pursue only interests in themselves are incapable of having an effective sense of justice; the two principles of justice obviously imply a great deal of mutuality or reciprocity.” Especially in PL this mutuality or reciprocity is used to detail a po/ttical conception of the person, which is something quite different from a full-blown philosophical anthropology. To speak precisely, Rawls’s political conception of the person, as quintessentially illustrated in the original position, entails a view that is in between the complete impartiality exhibited by perfect altruists, on the one hand, and the idea that the participants in the original position will only be moved to act in the event that mutual advantage occurs. This in between view is called “reciprocity.”

The Reasonable and the Rational 47 The psychology of participants in the original position is drawn not from the science of human nature itself, but from the political conception of justice as fairness. Still, it might be objected (Schopenhauer had this sort of criticism of Kant’s moral psychology), this view is at bottom egoistic because in it we cannot will a social world in which others remain indifferent to our pleas. But to do simply what our trustees expect us to do—one of the restrictions we willingly and reasonably accept in the original position so as to achieve justice—should not be seen as a disguised form of individualism or egoism. The constraints imposed on the parties in the original position are indeed imposed on them as rational agents of construction, but this imposition is part of a larger, reasonable, reciprocal pursuit of justice. In the end, the constraints of the original position are self-imposed by individuals who care a great deal for others.°' Rawls goes out of his way at several points to distance himself from libertaranism and its egoism; as is well known, Robert Nozick has written a famous book defending these positions against Rawls. He is also opposed to David Gauthier’s views or to any other view where the egoistic “state of nature” plays a role in assessing conceptions of justice.” Complaints concerning Rawls’s alleged individualism are often couched in terms of the accusation that he has, in effect, “privatized” religion, an accusation that is carefully rebutted by Paul Weithman. ‘To be precise, Rawls does not so much contrast the public and the private as he contrasts the public and the nonpublic. To be even more precise, the Rawlsian view stipulates differences among: (1) the public, by which he means the properly political sphere; (2) the nonpublic sphere of civil society and its many associations, including churches and universities; and (3) the strictly private sphere of one’s personal affairs. Because of (2) there is something inaccurate from the start in claiming that Rawls privatizes religion, just as there is something inaccurate from the start in John Langan’s claim that Rawls says nothing whatsoever about religious institutions in that religious belief is supposedly a strictly individual matter. The lengthy treatment of associations and civil society in TJ as well as PL renders this claim demonstrably false. Langan is on stronger ground when he points out that the distinction between the public and the nonpublic cannot be absolute when it is noticed that religious institutions have deeply marked our central political concepts, like equality, justice, and peace, concepts that still show traces of this religious influence. The problems start when we see Langan claim the following: My own view of the matter is that, while it is vitally important for religious groups in a pluralistic society to incorporate the basic principles of the Western conception of religious liberty into their self-understanding, it is also important for them to retain a certain transcendence in relation to any specific constitutional system, a transcendence which will enable them to protest the atrocities and idolatries of which states have always

48 The Reasonable and the Rational been capable. To place the idealized form of state over admittedly imperfect communities of faith in our determination of the range of acceptable moral considerations seems to me to be both dangerous and unfaithful, and it is at best a dubious contribution to civic peace.” The first half of the first sentence in this quotation is itself quite a concession to Weithman and to Rawls on Langan’s part. And there is nothing wrong with the claim that religion transcends politics i the sense that one’s comprehensive religious doctrine is expected to cover much more ground than the narrow purview of political liberalism. But I suspect that Langan, along with Timothy Jackson and David

Hollenbach, have something else in mind: the hegemony of religion (or of agapism, in Jackson's case) over political institutions, even if none of these three critics of Rawls and Weithman want to go so far as to defend an established religion, which is anathema to all American political theorists. But it is precisely this sort of move toward hegemony that political liberalism is meant to counteract. Weithman, along with Rawls, is certainly willing to consider comprehensive religious doctrines as intellectual resources when they can contribute to a well-ordered society, as we will see later; and they are also willing to grant to comprehensive religious doctrines and other theories of the good a sort of genetic priority to the right, but the justificatory priority of the right to the good is meant to establish constraints

on the comprehensive doctrines proposed by both religious believers and nonbelievers alike. These constraints are by no means intended to “privatize” religion (whatever this might mean to members of various religious communities), but rather to make sure that each religious believer or nonbeliever is treated justly.

Weithman is correct to point out that where there is a threat to the fundamental interests of citizens there is a defensible requirement in political liberalism that political arguments made in response to such a threat be in terms of public reason, rather than in the terms appropriate to nonpublic institutions like churches, or in the idiosyncratic (private) terms appropriate to individuals. For example, when the United States Supreme Court is pronouncing on the scope of basic liberties, it should not do so by appeal to theological premises, for such would not show respect for the fundamental interests of nontheists. It is true that, in the past, religious argument could function in the role of public reason as long as such argument was

not identified with one particular confession, as when Supreme Court justice William O. Douglas said in 1952 that “we are a religious people whose institutions presuppose a supreme being.” But in the almost fifty years since Douglas used these words in a Supreme Court decision, pluralism has increased, as has suspicion of re-

ligious authority. A Rawlsian political liberal need not inhabit a “disenchanted world” like that hoped for by a Richard Rortyan liberal, but a Rawlsian political liberal who is also a religious believer considers it a sign of disrespect to fellow citizens to expect them as a matter of course to share the enchantments of religion, in general, much less those of some particular confession.”

CHAPTER FOUR

THe ANCIENTS AND THE Moperns

Te Rawlsian opposition to individualism and egoism is largely connected to his view of Kant, specifically his view of Kantian autonomy. It must be emphasized that the autonomy Rawls has in mind 1s political rather than the sort of autonomy that may be associated with a more general philosophical anthropology. Political autonomy insures the independence (in the sense of political integrity and lack of coercion, slavery, or serfdom) of citizens. ’The reason why this point is crucial from a religious point of view is that a great many religious believers reject a more generalized autonomy in that such a view would be at odds with our common dependence on God. That is, political liberalism is quite different from the

comprehensive liberalisms of Mill or Kant because in political liberalism the weight of a full-blown theory of autonomy is not assumed, but is to be decided by citizens in light of their own comprehensive doctrines. So regarding autonomy political liberalism is only somewhat Kantian in character.’ The same could be said regarding the relationship between political liberalism’s constructivism and a more general sort of moral constructivism in Kant. In the latter, moral autonomy has a regulative role for all of life; the very constitution of the order of values is constructed as a result of human autonomy. In political constructivism citizens are free to accept or reject this view—many of them will see the order of values constructed by God rather than by human beings. The more limited aim of political liberalism is to uncover a fair public basis to deal with questions of justice given the fact of reasonable pluralism.’ There are several respects, however, where political liberalism is very much

indebted to Kant, including his account of procedural representation. Once stripped from his transcendental idealism, Kant’s procedural view of moral reasoning is very much in the background of the original position. And, as we have seen, Kantian autonomy, when stripped of its larger aims in moral philosophy and philosophical anthropology, provides the basis for political liberalism. Here we can advance our conception of the good while we honor the fair terms of social cooperation. Finally, Rawls seems to agree with Kant that it is important to see that a 49

50 Lhe Ancients and the Moderns goal of much moral philosophy is not so much to be happy, but to be worthy of happiness, a worthiness that requires that we not enslave others or hold them in serfdom, and that we honor their liberty and integrity.” Marxist critics like Lucien Goldmann have long held that behind Kant is Christianity, that especially the respect for persons version of the categorical imperative conceals a theology of the person. We should take this view seriously, I think, even if we do not accept the Marxist disapprobation regarding Kant’s stance. We

also must restrict the freedom and dignity of the individual to a political sense, specifically to the sense associated with the original position, an initial position of equality and social cooperation. The principles of justice manifest in this basic structure illustrate the desire of the participants to treat one another not as means only but as ends in themselves. In an initial position of equality we would not be prepared to impose on some people lower prospects of life for the sake of the higher expectations of others: utilitarianism does not regard persons as ends in themselves. Or more accurately, utilitarianism treats persons as both ends and means; it treats them as ends in a weak sense by insisting that everybody is to count for one and nobody for more than one, and it more significantly treats them as means (and perhaps as means only) by allowing higher life prospects for some to counterbalance lower life prospects for others who are already less favorably situated."

We should all be Kantians if what this means is that moral and political principles are the objects of rational choice. On this view moral and political philosophy becomes the study of a suitably defined rational decision. The original position is an attempt to interpret this concept of a suitably defined rational decision. he principles agreed to must not only be rationally acceptable but also pudlic, a point emphasized not only in PL but also in TJ. As long as we emphasize that we are dealing with political autonomy, the following Rawlsian view from TJ still obtains:

Kant held, I believe, that a person is acting autonomously when the principles of his action are chosen by him as the most adequate possible expression of his nature as a free and equal rational being. The principles he acts upon are not adopted because of his social position or natural endowments, or in view of the particular kind of society in which he lives or the specific things that he happens to want. To act on such principles is to act heteronomously. Now the veil of ignorance deprives the persons in the original position of the knowledge that would enable them to choose heteronomous principles.” Rawls creates unnecessary problems for himself when he claims that the original position is the point of view from which noumenal selves view the world—elsewhere, as we have seen, he says that flesh and blood human beings, rather than noumenal selves, can enter the original position at any time. But his main point here is to say that in the original position we can try to achieve some

The Ancients and the Moderns 51 sort of independence of natural contingencies and social accident. Without some such independence we act as though we were subhuman creatures determined by, rather than only influenced by (however strongly), natural contingencies and social accident (assuming, for the sake of argument, that subhuman creatures are completely determined). Granted, the freedom of pure intelligences (Cartesian cogitos? angels? God?) is outside the scope of political liberalism. But when Rawls brings in noumenal selves he needlessly gives the impression that his view applies to all rational beings as such, including God and the angels. Later we will see that a human being’s social and historical and religious situation does have a role to play in political liberalism and in determining the first principles of justice.°

For Kant it is the autonomous action of human beings that explains the categorical priority of the right over the good, but it is crucial for Rawls not to fall into Kant’s trap by making human autonomy radically disembodied. Causally determined nature, Kant thought, is transcended by human autonomy precisely because it is elevated above nature itself. Rawls avoids this trap (at least in PL, where the language of a Kantian noumenal self is dropped) by identifying autonomy with a political autonomy that is embodied and historical, and is not a pure consciousness that floats behind every one of its traits. As before, Rawls does not endorse a more extensive notion of autonomy at the very least because many or most religious believers will reject it, and they are among the reasonable parties in contemporary pluralistic society who must be enlisted, and who deserve to be enlisted, so as to establish a just society.’ To appropriate Kant for the purposes of political philosophy is obviously to say something negative about utilitarianism, the dominant systematic moral philosophy. In the political sphere each person is to be conceived as having a certain inviolability founded on justice or, as Rawls permits, on natural right, that the welfare of a majority cannot override. People are not to be subject to political bar-

gaining or the calculus of social interests. The plurality and distinctness of individuals is crucial. In a different context one is reminded of Jesus’ claim in Matthew that not even a sparrow falls without God caring, and each of us is of more value than any sparrow (10:28). Consider the following “outrageous” example that points out certain defects in utilitarianism: A slaveholder when confronted by his slaves attempts to justify his position to them by claiming that, first of all, given the circumstances of their society, the institution of slavery is in fact necessary to produce the greatest average happiness; and secondly, that in the initial contractual situation he would choose the average principle even at the risk of its subsequently happening that he is justifiably held a slave.* Later we will consider how the moral arguments of the abolitionists, almost all of whom were religious believers who made their appeals precisely on religious grounds, are compatible with political liberalism. Here we should emphasize the

52 Lhe Ancients and the Moderns inadequacy of utilitarianism in this regard, and the strong compatibility between Rawls’s appropriation of Kant for the purposes of political philosophy, on the one hand, and the religious arguments of the abolitionists, on the other. The vagueness of utilitarian principle regarding slavery is not likely to be remedied by a more precise measure of utility. To be fair to utilitarians, it must be admitted that Sidgwick is right that utilitarianism is more demanding than common sense or contract theory in terms of the sacrifice it requires of the moral agent’s private interest. But although utilitarianism may seem to be a more exalted ideal in this regard than contract theory, this is not the case when it is realized that it authorizes the lesser liberty and welfare of some for the sake of the greater liberty and welfare of others.’ It should now be clear that Rawls’s political use of Kantianism includes not only a notion of the inviolability of the individual very much compatible with religious inviolability, and at odds with utilitarianism (although liberals who are comprehensive utilitarians can and should still endorse po/ttical liberalism). It also includes a quasi-Kantian opposition to egoism. For example, egoists usually

develop a political philosophy that relies on some version of the prisoner’s dilemma, of which Hobbes’s state of nature is the classical case. We have seen that the state of nature plays no role in political liberalism. Nor does the isolation of the individuals in the prisoner’s dilemma play a role; in fact, the egoism of the prisoner's dilemma is antithetical to the mutuality that characterizes entry into the original position.” Rawls’s affinity to Kant and the Enlightenment is carefully demonstrated by Jean Hampton. In fact, Hampton perhaps does too good a job in this regard when she says that the comprehensive liberals from the Enlightenment and Rawls share a “common faith.” To put the point in this way is to underestimate the differences between comprehensive liberalism and political liberalism in that the latter is explicitly

concerned with bringing together in a well-ordered society members of different faiths along with those who have no faith at all. Perhaps the difference between Rawls and Hampton, however, is purely linguistic when it is considered that what Hampton means by a “common faith” is a commitment on Rawls’s part to, and a confidence in, the power of reason to help us live together in a fair way. Rawls does not have (foolish) confidence that reasonable persons will all be won over to a single comprehensive religious (or philosophical) doctrine, but rather a more realistic confidence that reason can help us to achieve a metacommunity wherein we can fairly resolve our disputes. [his is a metacommunity already partially accomplished, and on some issues already firmly established, in liberal democracies. But this is a far cry from an “over-arching secular political faith,” to use Hampton's phrase."*

Hampton is more helpful when she correctly alerts us to the historical fact that not all liberals have been committed to a secular reason that is superior to religious belief, such that the latter can be seen as mere superstition. Liberals who were religious believers, like Jefferson, contained implicitly what is made explicit

Lhe Ancients and the Moderns 53 in PL in terms of the difference between comprehensive liberalism (or relativism), where religion is necessarily denigrated, and political liberalism, where it is not denigrated. In political liberalism it is either left alone (as long as it is reasonable) or it is encouraged to the extent that it can contribute to overlapping consensus. In this way progress can occur on penultimate (or metalevel) political questions, even if we remain divided on the ultimate (comprehensive) ones.” Further help is provided by Hampton when she discusses the Rawlsian “burdens of judgment.” Some of our differences are due to unreasonable sources, such as bias or prejudice. But many other disagreements are due to honest differences of opinion related to divergent offices, positions, divisions of labor, ethnic variety, and

so forth. Fully reasonable people can disagree, hence the need for toleration. Hampton's version of Rawls’s argument goes something like this:

1. There are ineliminable sources of disagreement regarding comprehensive religious (or philosophical) doctrines that are not the product of bad reasoning, bias, or prejudice. 2. These sources of disagreement can result in reasonable people reasoning properly and yet reaching different conclusions. 3. Therefore, a political society should be so constructed that it is tolerant of the differing views of such reasonable people.” The conclusion to this argument is claimed by Rawls to be correct, thus there is not much to be gained by suggesting that political liberalism is relativistic to any significant degree. And even a highly pluralistic population can recognize the persuasive reasoning in this argument. Or again, Hampton gives something like the following version of Rawls’s view:

1. Disagreement about comprehensive religious (or philosophical) doctrines shows that religion and morality are complicated, and that some doctrines grasp some aspects of these fields better than others. 2. The fact of reasonable disagreement shows that we should be epistemically humble and hence refrain from suppressing views we cannot be sure are not right. 3. The fact of reasonable disagreement regarding comprehensive religious (or philosophical) docrines can be seen as a good thing because it is a sign of a society of individuals reasoning freely in an uncoerced way.“ Here we can see both Rawlsian Aumulity and confidence at work, with the former concerning the powerlessness of reason to convert everyone to a single comprehensive religious (or philosophical) doctrine, and the latter concerning the strength of reason when dealing with the structure of a politically liberal society itself.

No doubt some religious believers, who are skeptical as to whether the Enlightenment was a good thing, will also be skeptical regarding whether Kant’s

54 Lhe Ancients and the Moderns influence on Rawls is a good thing. And what we have said concerning political philosophy in the ancient and medieval worlds will also make them skittish. We should therefore retrace our steps so as to see exactly what Rawls rejects in, and surprisingly for some, what he accepts in Aristotle. (This will enable me to assess Rawls’s treatment of the debate between the ancients and the moderns as it affects the relationship between politics and religion.) To go back even further, it is clear that Rawls thinks that moral philosophy in general is Socratic in the sense that we may want to change our present judgments once their regulative principles are brought to light. It is only by studying the conceptions of justice found in the history of philosophy and criticizing them and their variants that we are likely to see if our judgments do, in fact, make sense. Justice as fairness moves us closer to the Socratic ideal, if only asymptotically. Humility is especially required regarding political philosophy because Rawls thinks that all of our theories, historical and contemporary, are “primitive and have grave defects.” We have seen that it is not likely that we will get closer to regulative principles of justice by telling a “noble” lie, as does Plato (through Socrates) in the

Republic (414-415), a lie that Rawls compares to the tactics of the Grand Inquisitor in Dostoevsky’s The Brothers Karamazov, where the advocacy of religion, when not believed, is used to buttress a social system that would not survive otherwise. It is true that Rawls appeals positively to Book Iwo of Plato’s Republic

(specifically to the view reported by Glaucon) in the 1958 essay “Justice as Fairness.” It is a good thing that Rawls drops this reference in ’IT'J and PL because, although even in this early essay he disavows commitment to “manic egoism,” he

does indicate that the parties to the social contract would enforce their wills on each other if they could. This sort of language is too close to a Hobbesian view for comfort, as Rawls himself appears to have come to realize.”® It is not necessarily the case that Rawls has given up on the Aristotelian and medieval idea that in moral philosophy the goal is to take human beings as they

happen to be and encourage them to turn toward human nature as it could be if human beings realized their essential nature. But in political philosophy the issue is a bit more complicated. It is true that political liberalism urges that refraining from pleonexia (in the sense of gaining some advantage for oneself by seizing what belongs to another) is a good thing, as it was in Aristotle. And in political liberalism we should be as committed as Aristotle was to the principle that similar cases should be treated similarly. Because of the inevitable vagueness of laws in general, and because of the wide scope that is allowed in their interpretation, there is a certain arbitrariness encouraged in making decisions if legislators, judges, and others

do not have an allegiance to justice, including the principle that similar cases should be treated similarly."”

The theory of the good that is used to account for primary goods (the “thin” theory of the good) goes back to Aristotle. The good in general is the satisfaction of rational desire. It would be a mistake, however, to think that Aristotle, in his

The Ancients and the Moderns 55 traditional view that the good is prior to the just or the right, disvalues justice altogether. He thinks that it is a peculiarity of human beings that they possess a sense of the just and the unjust; their sharing a common sense of the just is what establishes a polis (Politics, Book I, ch. 2). Political liberalism tries to make the analogous point that a common understanding of justice as fairness establishes a constitutional democracy. Justice as fairness includes notions like liberty of conscience and freedom of thought, values that cannot themselves be founded on ethical skepticism, nor on indifference to religious issues. Rawls admits this in TJ as well as in PL: “The principles of justice define an appropriate path between dogmatism and intolerance on the one side, and a reductionism which regards religion and morality as mere preferences on the other.”* One of the common criticisms of Rawls made by religious ethicists is that he does not sufficiently encourage human beings toward perfection, and this despite Rawls’s extended (and largely neglected) section in TJ on the principle of perfection. A moderate view is defended here. Absolute weight placed on the effort to produce great individuals (as in Nietzsche), such that we give value to our lives only

by working for the good of the highest specimens, makes slavery a possible, or even likely, outcome. It might be hard to justify the claim that ancient slavery, for example, was directly responsible for the Greek achievements in philosophy, mathematics, science, and art, but if such a claim could be justified then the highly per-

fectionistic view of Nietzsche (and his followers) could be seen as looking favorably on the requirement of perfection as overriding the claims of liberty, a view that is anathema from a liberal stance.”” In the moderate perfectionism of justice as fairness, a certain amount of society’s resources should be set aside to advance the ends of perfection, unless these re-

sources are required to meet basic needs. The original position brings to our attention the fact that we may well be incarnated as religious beings whose beliefs will require a significant amount of time and attention in order to achieve perfectionistic ends. However, we cannot agree in the original position on what the criterion for perfection will be, and religious believers should be grateful about this because to acknowledge any such standard in the original position would be to accept a principle that might lead to lesser religious liberty. In brief, perfectionism should be denied as a political principle. But in morality human beings are encouraged to pursue perfectionism as long as they are within the limits of justice and do not enlist the coercive power of the state to enforce their perfectionistic views on others. None of this implies, however, that all perfectionisms are equally valuable.” Aristotle favored perfectionism in ethics and politics, hence his view is only partially acceptable. Perfectionism is unacceptable as a political ideal because it provides an insufficient basis for equal liberties. No matter how they may be invoked within religious communities, criteria of excellence do not work well when trying to settle public policy matters, hence the application of these criteria in political matters tends to be unsettled and idiosyncratic, at best, and oppressive, at worst.””

56 Lhe Ancients and the Moderns Rawls’s own moderate version of perfectionism is ironically labeled by him as

“the Aristotelian principle.” Here the definition of the good is purely formal. A person's good is determined by the rational plan of life that would be chosen with deliberative rationality. The basic structure of society will obviously encourage and

support certain kinds of rational plans more than others. Other things being equal, however, human beings enjoy the exercise of their already actualized capacities, whether natural or trained or both. And the more complex the capacity is, the

greater the enjoyment; human beings enjoy doing things they are good at, as Aristotle realized (Nicomachean Ethics, Book VII, chs. 11-14 and Book X, chs. 1-5). As a person’s capacities increase over time, the more complex activities are enjoyed more, whether performed by this person or by someone else, in which case the pleasure is vicarious.” Very often perfecting a capacity involves hard work, but the hardships of training are not severe without limit. At some point equilibrium is reached when an improved capacity is no longer worth the effort of increased practice. At this point the capacity is as perfect as it is going to be. Nonetheless, the forms of life that absorb our energies—religious devotions and pastimes alike—tend to develop intricacies and subtleties without end. As is well known, Aristotle held that human beings desire to know, and this desire is connected to “the Aristotelian principle,” which encourages us to desire and know not only the superficial aspects of life. It is obvious that not everyone is driven by the Aristotelian principle; imagine someone who ts otherwise intelligent, but whose chief pleasure in life is counting blades of grass. Most people, it seems, are to some extent perfectionists and it is the job of political liberalism to make it possible for them to flourish in their pursuit of some rational plan or other, subject, of course, to the limitations of justice. It is true that in a politically liberal state many people may lead spiritually empty lives. Rawls admits that spiritual well-being is important, but it should not be required or politicized.” Happiness refers to the successful execution of a rational plan. This success in some cases can be objectively determined, such that the person seeking happiness can be, as Aristotle believes, mistaken or deluded (Micomachean Ethics, Book I, chs. 7-13).” Consider the following remarkable lines from Rawls, almost always ignored by the very critics who allege that he 1s insufficiently concerned with human ¢elos:

So even if the material means that support our mode of life can always be imagined to be greater, and a different pattern of aims might often have been chosen, still the actual fulfillment of the plan itself may have, as compositions, paintings, and poems often do, a certain completeness which, though marred by circumstance and human failing, is evident from the whole. ...A person is happy during those periods when he is successfully carrying through a rational plan. ... He may be said to approach blessedness to the extent that conditions are supremely favorable

Lhe Ancients and the Moderns 57 and his life complete. ... Happiness is not one aim among others that we aspire to, but the fulfillment of the whole design itself... ."Thus persons who devote themselves selfishly to a self-righteous cause, or who dedicate their lives to furthering the well-being of others, are not normally thought to seek happiness. It would be misleading to say this of saints and heroes, or of those whose plan of life is in some marked degree supererogatory. [hey do not have the kinds of aims that fall under this heading, admittedly not sharply defined. Yet saints and heroes, and persons whose intentions acknowledge the limits of right and justice, are in fact happy when their plans succeed. Although they do not strive for happiness, they may nevertheless be happy in advancing the claims of justice and the well-being of others, or in attaining the excellences to which they are attracted.” The main difference between Rawls and Aristotle on the topic of perfectionism and happiness is that Rawls is much more aware than Aristotle of the indeterminacy involved in deciding among the many aims that human beings typically have. We have to choose not only means to ends, but also among ends themselves.”

On this point Rawls’s religious commentators have not been remiss. Regarding the notion of tHe dominant end, he cites the example of St. Ignatius of Loyola, who, as with most saints, holds that the dominant end is serving God.” Rawls is a bit too anthropocentric in claiming that Ignatius’s main reason for contributing to the greater glory of God is to save his own soul, but Rawls is surely correct to note that 7/there is a single criterion for balancing all subordinate aims it would be the furthering of divine aims. Ignatius thinks that there is such a single criterion that enables us to prefer health to sickness, riches to poverty, honor to

dishonor, and a long life to a short one. Ignatian indifference (along with Stoic adiaphoria, the Buddhist no-self, and St. John of the Cross’s nada) leads us to hold these preferences in check if they are not conducive to submission to God.” This principle of indifference is compatible with our enjoying lesser pleasures in that these rest the mind so that we are better fit to advance more important aims. For example, St. Thomas Aquinas concedes play and amusements a place in our lives if these are ultimately conducive to the vision of God. That is, when we engage in

frivolity and jest (or sport), we should never fully lose sight of our final end.” Whereas most religious believers, whatever their affiliation, find Ignatius’s and Thomas’s views congenial on this point, Rawls finds them “extreme.” The problem, he thinks, lies in the vagueness and ambiguity of the end proposed. Unless divine intentions are made crystal clear from revelation or natural reason, he seems to be saying, then the end of serving God remains to a great extent unspecified.

At this point Rawls’s religious commentators tend to emphasize that he thinks that the dominant end view is “irrational” or “mad.” ‘This does not mean that he thinks of religious believers as irrational or mad. The problem remains

58 The Ancients and the Moderns within the sphere of different interpretations of perfectionism/happiness. The heterogenous aims of the self are disfigured when they are put in the service of one of its aims for the sake of system. This disfigurement can occur both within and outside of religious belief. Consider that short of detailed knowledge of divine intentions for us, as found in revelation or natural reason, we are still left within a religious view of the world with the problem of:

balancing principles and determining precedence which trouble other conceptions. Since disputed questions commonly lie here, the solution propounded by the religious ethic [the dominant end view] is only apparent.” I am not entirely satisfied with Rawls’s view here, but equally unsatisfactory are the views of Rawls’s critics. Both divine command theory and natural law theory—the two most obvious defenses of religious ethics—leave quite a gap between what they justify and ¢4e dominant end toward which they point. In any event, in Rawls’s later work he puts debate regarding dominant end views in a political context: in point of fact, even religious people disagree about what it is that perfects human nature and we have to take seriously these disagreements among reasonable people. Some solace can be gained by Rawls’s critics in the knowledge

that just as he is skeptical of dominant end views in religion, he is even more skeptical of the most likely dominant end replacement among those who are not religious believers: hedonism.”’

The problem, here as elsewhere, is with overly aggressive (i.e., immoderate) teleological theories: .. . from the start they relate the right and the good in the wrong way. We should not attempt to give form to our

life by first looking to the good independently defined. It is not our aims that primarily reveal our nature but rather the principles that we would acknowledge to govern the background conditions under which these aims are to be formed and the manner in which they are to be pursued. ... There is no way to get beyond deliberative rationality. We should therefore reverse the relation between the right and the good proposed by teleological doctrines and view the right as prior.” By asserting the priority of the right we are in a much better position to participate in the life of a well-ordered society, which, as Aristotle realized, is itself a great good. One critic who would push Rawls toward a stronger perfectionistic, quasiAristotelian stance is George Sher. He notices that Rawls equates perfectionism not merely with a view of the good, but also with a view of the right. For the most part, however, Rawls’s view consists, on Sher’s reading, in a commitment to a neutral, nonperfectionistic state so as to satisfy the demands of autonomy. This “neutralism” is, at the very least, pragmatic in that reasonable people want to avoid the “acrimony and turbulence that result when different factions vie for control of the

The Ancients and the Moderns 59 state’s coercive apparatus.”*’ Neutrality applies at what Sher calls the “framework

level,” that is, at the metalevel. This leaves perfectionistic theories intact at the basic level as long as they are reasonable. We will see that there is a sequence in TJ that bridges the gap between the most abstract, neutral principles of justice arrived at in the original position and the concrete decisions of political life, with perfectionistic standards becoming appropriate only at the “end” of this sequence when constitutional essentials and basic justice are not at stake. Sher, by way of contrast, thinks that Rawls’s legitimate concern that some citizens not be used for the sake of others (whose perfectionistic standards are as-

sumed to be superior to the standards of those who are used) does not conflict with the effort on the part of the government to induce citizens to lead good lives. One controversial way to do this is to alter the original position itself so that one’s view of the good is not placed behind the veil of ignorance: Even if we remain within the Rawlsian framework, nothing yet said rules out augmenting the knowledge that Rawls himself allows the parties in the original position to have—knowledge of political affairs, economics, human psychology, and other general facts — with knowledge of one or a small number of well-supported views about the human good.” Those like myself who are sympathetic to Rawls’s views are simply baffled at this point. One can easily concede parties in the original position knowledge of certain theories of the good, but it is not so easy to concede to them knowledge of which

theory of the good they will adhere to when incarnated, which, if | understand Sher correctly, is his ultimate goal in his effort to make the veil of ignorance much thinner than it is in Rawls’s view. To retain full cognizance of one’s theory of the good or of one’s perfectionistic standards or of one’s comprehensive religious (or philosophical) doctrine— treating all three of these as having at least a family resemblance to each other—in the original position is to retain precisely the most notorious sources of bias that the original position is meant to counteract. How could one retain knowledge of one’s comprehensive religious (or philosophical) doctrine in the original position and still have it be the original position? Sher’s response to this question seems to be that one’s theory of the good is no more emotionally charged, and hence no more a source of bias, than one’s the-

ory of the right. But there is a Rawlsian rejoinder here that is, as I see things, quite persuasive. There is a reason why one’s theory of the good or one’s perfectionistic standards or one’s comprehensive religious (or philosophical) doctrine are more likely to emotionally charge us, and hence be more likely sources of bias, than one’s theory of the right. The latter is, on Rawlsian grounds, a metatheory that is more abstract, and hence less of an occasion for visceral reaction, than the primary-level beliefs of embodied individuals who are emotionally embedded in the traditions associated with their comprehensive religious (or philosophical)

60 Lhe Ancients and the Moderns doctrines. Obviously one can also get emotionally charged by, and be biased in favor of, metalevel theories, but there is less of a danger of this happening than there is with respect to one’s ultimate and really basic views regarding what makes life worth living.” Even when people say they are willing to die to defend abstract ideas like “freedom” or “democracy,” I assume that what really emotionally engages them is the more concrete freedom to believe as they wish or the ability in a democracy to worship as they choose. It should be clear that neither Rawls’s praise of Kant nor his criticism of Aristotle is unqualified. We are now in a position to appreciate political liberalism's relationship to Benjamin Constant’s early-nineteenth-century contrast between the liberty of the ancients and that of the moderns in that Aristotle and Kant are quintessential examples of each of these periods. The liberties of the moderns that are crucial in political liberalism include freedom of thought and conscience, certain basic rights of the person and of property, and so on. The liberties of the ancients, by way of partial contrast, primarily involve the value of public life. Although this is a stylized contrast, it serves to illustrate why certain religious traditionalists who favor the liberties of the ancients react to Rawls the way they do. It should be emphasized, however, that Rawls’s defense of the liberties of the moderns should not be construed as a denigration of the liberties of the ancients, as it is in some liberal thinkers, including Constant himself. Indeed, the whole point to PL is to defend public political discourse and procedures. Both sorts of liberty are protected by the equality principle and are lexically ordered before the difference principle.” It is true that liberalism has historically stressed the liberties of the moderns, which Habermas refers to as the core of subjective private rights, whereas civic republicanism has had a tendency to defend the liberties of the ancients, the political rights of participation and communication that make possible the citizens’ exercise of self-determination. Rawls is like Kant, however, in tracing both of these back to the same root in political autonomy (and in a more general moral autonomy, in Kant’s case). Rawls’s main dispute with civic republicanism is in its ef-

fort to grant priority to the ancient over modern liberties. Rather, public and private liberties are both co-original and of equal weight, with neither externally imposed on the other because the two of them are internally connected and mutually presuppose each other. What we want from a political system is to have both sorts of liberty protected.*’ The liberties of the ancients have historically been connected with a theory of the virtues, but the liberties of the moderns can be seen, and in political liberalism are seen, as fostering the virtues to no less a degree. But the particular virtues are sometimes different or redefined. A full appreciation of political liberalism would have to include more attention to the virtues than has been paid thus far, a point that should be of interest to religious traditionalists. For example, there is nothing in the pure proceduralism of political liberalism that eliminates the need

Lhe Ancients and the Moderns 61 for (Aristotelian or Thomistic) prudential judgments in the effort to apply the principles of justice to concrete cases. [here is no need to overemphasize the virtues, however, say by trying to make virtue the criterion for the distribution of rights and privileges and wealth. This view (held, it seems, by W. D. Ross and Leibniz) is rejected by political liberalism because there seems to be no way of defining the requisite criteria so as to make practical judgments regarding distribution.”

Further, there is a worthwhile distinction between moral desert and legitimate expectations. No one deserves her place in the distribution of natural assets, yet each person has intrinsic worth that makes that person worthy of moral respect, a point of agreement with religious believers in general, including religious traditionalists. Hence there is a tension between what one may deserve and what one is likely to receive, subject to the level of prosperity found at some particular time in some particular society. This tension poses difficulties for the common sense version of rewarding moral desert: distribution according to conscientious effort. One difficulty is that conscientious effort may very well be influenced by natural abilities; the better endowed might be more likely to strive conscientiously. The key in political liberalism, however, is to distribute goods fairly, with fairness established by the two principles of justice agreed to in the original position. In

this manner we can handle what would otherwise be a serious problem: equal moral worth does not necessarily entail that distributive shares are equal.” The criterion of each according to his virtue would not be chosen in the original position. We should distribute to each according to his or her due or what he or she is entitled to, but this is quite different from believing that we should distribute according to moral desert. The confusion here seems to stem from the assumption that distributive justice is the flip side of retributive justice, where those who have done wrong deserve to be punished. It might be assumed that those who have done good deserve to be rewarded. But institutions associated with the distribution of goods in society are not the converse of the criminal justice system because the function of unequal shares is, in part, to cover the cost of education and training, and to attract individuals to positions where they are most needed so as to work to the advantage of all, especially the least advantaged. Consider the following far-fetched, but instructive, example: Would it be reasonable to have a hard-working mailroom clerk receive a greater share than an easygoing genius who discovers the cure for a disease that regularly affects and kills many people? Parties in the original position would, no doubt, reject this idea.”

The point to taking the virtues seriously in political liberalism is not that we will thereby discover a talisman that will enable us to distribute goods fairly in an algorithmic way. It is rather to make it easier for us to enter the original position in the first place, and to more easily apply the principles discovered there when we leave it. Consider the importance of shame, not natural shame at our appearance or lack of intelligence, but moral shame for having failed to be just when it was within our power to do so. The desire to do what is right is the

62 Lhe Ancients and the Moderns main way for persons to express themselves in a social setting as free and equal beings; from an Aristotelian point of view, this desire is a fundamental element of their good. The virtues in general are, as in Aristotle, excellences the lack of which tends to undermine both our own self-esteem and the esteem others will have for us.” The problem of envy would seem to be especially prominent in the contemporary world where identity is more likely to be achieved than attributed; the latter characterized the ancient and medieval worlds. That is, failure to be rewarded is more easily assumed in our world to be a temporary phenomenon, such that those who have been rewarded are easily envied. A virtuous person is not subject to envy unless the difference between himself and others who are rewarded is due to injustice, when something close to envy is triggered. Hence the inequalities allowed by the difference princple have to be carefully monitored so as not to arouse envy or something like it in others. Aristotle was right to notice (Wicomachean Ethics, Book I, ch. 8) that envy does not admit of a mean in that it implies badness szmpliciter: if inequalities are just one shows a lack of virtue by envying them. Period. The word Rawls uses for our legitimate agitation at inequalities gained by others that are, in fact, unjust is “resentment” (or “proper indignation’), which is obviously something a bit different from envy.” It is also worthwhile noting in this context that those who have an unequal share of goods, and have them justly, should not make an ostentatious display of them so as to demean others or seduce them into becoming envious. In a just society, however, even those who have lesser shares will not live in poverty or in humiliation, such that it is less likely there than in an unjust society that envy will be a temptation. The distinction between envy and resentment unfortunately becomes blurred when an appeal to justice is actually a mask for envy; that 1s, envy often (Rawls’s word) masquerades as resentment. Iwo comments are in order here: (1) an encouragement of the virtues in politics, whether those typically “ancient” or those typically “modern,” cannot eliminate the need for a fair decision-making process whereby envy and resentment can be adequately distinguished; and (2) a social system ought not to encourage propensities and aspirations that it is likely to disappoint, because such disappointment is the root of envy.” From the above it should be clear that justice as fairness is intricately bound up both with the passions and the excellences of character associated with the selfcommand needed to deal with these passions. No passion is more powerful than love (except perhaps hate), a passion that both enables us to acquire strong attachments to persons and at the same time to make us liable to ruin. Love, in addition to its positive theological ramifications, also makes us “hostages” (Rawls’s word) to the injustices and misfortunes of others. Love makes us vulnerable, but such vulnerability is not so great that we are encouraged to quit loving others. For the pur-

poses of the present book it is crucial that Rawls explicitly states that the sentiment of justice is connected to that of love (presumably as duty is connected

Lhe Ancients and the Moderns 63 to supererogation, respectively). As far as I know, none of Rawls’s critics has even noticed, much less emphasized, this fact.** At the very least, love for others makes it easier for us to enter the original position and to implement its findings. The most significant contribution to theory of the virtues made possible by political liberalism, however, is, quite simply, the idea that some virtues are politi-

cal in nature. The political virtues must be distinguished from the virtues that characterize ways of life belonging to comprehensive religious (or philosophical) doctrines. By discouraging various sorts of religious or racial discrimination (so as to preserve liberty of conscience and freedom of religion), political liberalism is

not necessarily committed to a perfectionistic state or to a confessional state. Rather, in political liberalism one is encouraged to develop virtues of fair social cooperation like civility and toleration (of reasonable differences). Political liberalism does not go so far as to encourage, but only permits, the virtues associated with comprehensive liberalism, for example, those virtues associated with full-fledged autonomy and individualism of a certain sort.” One of the most clear differences of opinion between political liberalism and the ancient/medieval views defended by many religious traditionalists concerns the attitude we ought to have toward what we have inherited by nature or culture. Whether based on love or justice, our approach should be one that emphasizes the arbitrariness of natural or social accident and good (or bad) fortune, such that distributive shares should not be improperly influenced by these factors. Liberalism tries, as much as possible, to correct the arbitrariness of nature and culture. For example, those who are at the same talent level should have the same prospects of success regardless of the income class into which they were born; and school systems, whether public or private, should be designed to even out class barriers.

Nature, however, can be every bit as arbitrary as some cultural arrangements. Indeed, Rawls refers to “the natural lottery,” by which, for example, some people undeservedly are born quite brighter or quite duller than others.” Any advantages that accrue to those with greater natural endowments can be morally justified only if they further the good of the poorer sectors of society. Natural “advantages” like intelligence are actually, from a moral point of view, burdens in the sense that they bring a noblesse oblige. It should be remembered, however, that the first part of the difference principle states that positions of power and wealth and influence be open to all, such that the noblesse oblige at work in justice as fairness is quite different from that at work in feudalism or in aristocracy, where such positions were open only to those with the right family background. By mitigating the unjust effects of natural and social accident we nonetheless allow talented individuals to benefit from their talents, as long as they do so without the callousness found in a strictly meritocratic society. From the perspective of the original position, undeserved inequalities call for redress, as in greater attention being paid to those with fewer natural and social assets, say by providing greater resources for the education of the less fortunate, at least in the early years of school.”

64 Lhe Ancients and the Moderns Rawls is not claiming, as some in the Foucaultian left seem to claim, that all differences that exist among people are due to power plays in society. Rather, he 1s saying that the real differences in natural capacity should be dealt with in such a way that these undeserved contingencies work for the benefit of all. His view is clearly and forcefully stated in the following terms: We may reject the contention that the ordering of institutions is always defective because the distribution of natural talents and the contingencies of social circumstance are unjust, and this injustice must inevitably carry over to human arrangements. Occasionally this reflection is offered as an excuse for ignoring injustice, as if the refusal to acquiesce in injustice is on a par with being unable to accept death. The natural distribution is neither just nor unjust; nor is it unjust that persons are born into society at some particular position. These are simply natural facts. What ts just and unjust is the way that institutions deal with these facts. Aristocratic and caste societies are unjust because they make these contingencies the ascriptive basis for belonging to more or less enclosed and privileged social classes. The basic structure of these societies incorpo-

rates the arbitrariness found in nature... . In justice as fairness men agree to share one another's fate. In designing institutions they undertake to avail themselves of the accidents of nature and social circumstance only when doing so is for the common benefit.”

In this view no attempt is made to alter the distribution of natural assets themselves, assuming for the moment that we are even in a position to do so. But we should alter the way social systems negatively affect the distribution of natural assets, as in Hindu caste systems where society is divided by official legislation and tradition into separate biological populations. It is hard (but perhaps not impossible) to imagine a eugenic policy that would be tolerated in political liberalism especially because such a policy would not really benefit the less fortunate if its goal were to reduce the talents of the more fortunate. As before, in a just society natural advantages are not eliminated, but they are directed (because undeserved) toward the benefit of all, especially the least advantaged.” Unequal inheritance of wealth is more amenable to social control than the unequal inheritance of intelligence. In either case possible inequalities should be brought within the scope of the difference principle, whether this principle is implemented through proportional income or expenditure taxes. And a high material standard is not needed to implement the difference principle in these ways. The important thing regarding justice is how institutions at any level of prosperity deal with natural or social limitations.” Related to issues concerning the natural and social lottery are issues concerning the stages of moral development as they affect political liberalism. ‘The first stage of moral development can be termed the morality of authority, where a child is subject

Lhe Ancients and the Moderns 65 to the legitimate authority of the parents, assuming that the child is lucky enough in the natural and social lotteries to have good parents. Ideally the child comes to love the parents because they love the child. Love here is at least remotely related to political liberalism (as well as to religious ethics) because people who are loved are likely to affirm the worth of their own persons, that they are worthy for their own sake. The morality of authority consists in being disposed to obey those in authority even without the prospect of reward or punishment. This is because those in authority have their love and trust. Obviously some religious believers continue the morality of authority into adulthood, but this is, from a political point of view, a matter of choice that does not apply to the basic structure of society. In all cases the scope of the morality of authority is governed by the principles of justice, even for those who hold a religiously based version of the morality of authority.’’ A related sort of morality can be seen in the second stage of moral development, the morality of association. Here morality is given by an individual’s role in some association or church to which he or she belongs. The family itself can be seen as a small association, but schools where one learns to play games and interact with peers are more obvious examples. We largely move through life playing a series of roles: wife, husband, member, parishoner, employee, taxpayer, and so forth. It should be emphasized here that in morality of association one must learn to regard things from several points of view, especially in larger associations, and

this requires knowing what the other person's perspective really is, and, often enough, regulating our conduct accordingly. These skills, and the feelings of trust and friendship they encourage, are crucial in the development of a mature moral attitude that is necessary for political reasonableness. If these skills are not developed, we can expect certain vices: unfairness, dishonesty or deceit, bias and preju-

dice.’ Once again, not everyone is fortunate enough in the social lottery to be born into a society with effective associations. A mature moral attitude is found in a morality of principle. Here one wants to be not merely a good sport, as should be the case during childhood and adolescent games, but also a just person. Familiarity with associational rules should be good preparation for the original position, although we should not expect that the citizens as a whole will be bound together as a family or even as an association. “While every citizen is a friend to some citizens, no citizen is a friend to all. But their common allegiance to justice provides a unified perspective.””’ In a morality

of principle, attachments to family members and school pals and Bible study groups still have an appropriate place, even if justice involves a certain degree of independence from natural attachments. I noted at an earlier point that for Rawls the sense of justice 1s continuous with love, a continuity that should be of particular interest to religious believers. But sometimes even one’s loves conflict, as when Ted Kaczinskt’s brother loved fellow citizens, in general, as well as Ted, in particular, but felt compelled to turn Ted (the “Unabomber’”) in for the sake of justice.

When loves conflict the principles of justice are most needed.”

66 Lhe Ancients and the Moderns An overlapping sense of justice makes possible civic friendship, if not fullfledged Aristotelian friendship of virtue. Further, the morality of association and the morality of principle require a heightened sensitivity to the feelings of others and a proper humility. But these moralities are sometimes supererogatory; from a political point of view, no one should be required to be a saint. Morality does often involve guilt when we have fallen short of moral authority, associational rules, or moral principle, depending on context and on our stage in life. From the perspective of justice, however, we do not expect that one feel guilty for having broken an associational rule, say if a member of a fundamentalist religious group was taught

that going to see a Hollywood movie was immoral and did so nonetheless. Apostasy is not a crime.”

Guilt is an appropriate feeling to have when one has violated rights, and shame is appropriate when one falls short of one’s own view of the good. Given Rawls’s stipulative distinction between guilt and shame, the morality of supereroga-

tion beyond principles of justice sets the stage for shame perhaps, but not guilt. Morality of principle applies in a sense in a well-ordered democratic society, which is neither a community nor an association. Or more precisely, a community is a special kind of association united by a comprehensive doctrine, as a church is united by

a religious comprehensive doctrine. Members of other associations have shared ends, but not necessarily a comprehensive doctrine. Past societies obviously thought otherwise, as when religion (or better, a particular religion) was seen as a final end

and the status of individuals depended on the degree to which they played their roles in furthering this end.”° A democratic society is not an association, hence a fortiori it is not a community if what we mean by “community” is a society governed by a shared com-

prehensive religious (or philosophical) doctrine. We should beware of those whose romantic longing for a grand gemeinschaft, or whose zeal for the whole truth, tempts them to a deeper unity than what can be justified by public reason. That is, there is a limited scope to democracy’s public reason. The political is distinct from the associational primarily because the latter is voluntary in ways that the former is not. Acceptance of ecclesiastical authority is voluntary from a political point of view in ways acceptance of democratically established law is not; emigration is usually very difficult politically. Becoming a “fallen-away Catholic” ora “Jack Mormon’ or an “apostate Jew” can also be difficult psychologically, but not politically in a democratic, just society. The political is also different from the

familial because of the intense affectional ties that characterize the latter rather than the former.”’ Some may object that Rawls has given up too quickly the effort to bring about a political community, that his own defense of overlapping consensus should make him more optimistic in this search. But overlapping consensus among different comprehensive doctrines is something quite different from affirming the same comprehensive doctrine; the latter is monumentally impractical.

Lhe Ancients and the Moderns 67 This is not to say that all values of community are impractical, only that they become impractical when they are transferred from the associational to the political. In fact, the values of community are essential parts of a just society as associations, especially churches, carry on their lives within the framework of a just structure. Political society as a whole should be rejected communal status because not to do so would endanger basic liberties. Churches and other communal associations provide the “background culture” for the public reason that characterizes political society. Parts of the background culture are often quite different from other parts: the rules of evidence in science are different from those used in a court of law, and both are different from those used to settle a theological dispute.”® In a just society we want both that the liberty of conscience in individuals will be protected against churches and other communities and that the freedoms of association be protected for churches against the government. Both associations and individuals need protection, hence it is simply inaccurate to say that liberalism focuses only on the (natural or other) rights of individuals. Churches are quite different from universities (hence a church-affiliated university requires effort in order to foster both religious and scholarly aims). But the attachments that people make to church or university communities are not to be deplored, especially because they may be too strong to be ignored. The danger comes not in acknowledging or encouraging the natural or social ties of affection that people have for each other in associations, but when the fair terms of cooperation among individuals and among associations are too narrowly drawn.”’ Rawls by no means ignores the social origin of our conceptions of the good, nor the social content of such conceptions. The background culture of civil society is, in fact, thoroughly social, whether the associations that constitute that culture be religious, educational, medical, media-oriented, and so on. The political question, however, 1s how to reproduce a just society over time that is composed of the various families and the various associations that make up the background culture. Political liberalism may very well give the impression that it has no interest in the particular form of family life or the specific character of its religious institutions. But this is a good thing. The state should get involved in the particulars of these associations only if they are violating justice; for example, polygamy needs to be outlawed so as to ensure the equality of women.” Citizens’ allegiance to civility and public reason are crucial because without them hostilities between comprehensive doctrines are likely, over the course of time, to assert themselves. Harmony among various associations, whose membership may very well be determined by the natural lottery or by one of several social lotteries, depends on the vitality of the public political culture. The problem can be put in the following dramatic terms: Is democracy even possible when there are conflicting comprehensive doctrines at work, religious and nonreligious? Certain contemporary conflicts, to be discussed later, including some in the United States, force us to consider this problem. The most promising hope to deal fruitfully with

68 The Ancients and the Moderns this problem is provided by an endorsement of constitutional democratic society and of public reason even by those who also endorse the authority of the Church or the Bible. As we have seen, the key is to show how the latter endorsement is, at the very least, consistent with, and at best supportive of, the former endorsement.” It will be remembered that the transition from the morality of authority to that of associations (including churches) to that of principle is made more or less likely due to various natural and social contingencies. Ideally three psychological laws (or better, tendencies) obtain if natural and social contingencies permit: First law: given that family institutions are just, and that the parents love the child and manifestly express their love by caring for his good, then

the child, recognizing their evident love of him, comes to love them. Second law: given that a person’s capacity for fellow feeling has been re-

alized by acquiring attachments in accordance with the first law, and given that a social arrangement is just and publicly known by all to be just, then this person develops ties of friendly feeling and trust toward others in the association as they with evident intention comply with their duties and obligations, and live up to the ideals of their station. Third law: given that a person’s capacity for fellow feeling has been realized by his forming attachments in accordance with the first two laws, and given that a society's institutions are just and are publicly known by all to be just, then this person acquires the corresponding sense of justice as he recognizes that he and those for whom he cares are the beneficiaries of these arrangements.” In less than ideal conditions these laws or tendencies may nonetheless apply, but in attenuated form.

CHAPTER FIVE

THe Common Goop

KY in the best of circumstances, however, when the above three psychologi-

cal laws or tendencies apply to the highest degree, it may be objected that this is not enough. Political liberalism, it will be objected, is basically a political philosophy meant to justify toleration, and toleration is not enough. Religious believers

may wonder where the Rawlsian notion of the common good is to be found. Catholics especially (because of the prominence in Catholic tradition of the common good), but also Protestants like John Cobb and thinkers from other traditions, will not be willing to buy into political liberalism without a clear indication of how this view is conducive to the common good.’ David Hollenbach provides a prominent example of this sort of skepticism regarding Rawls’s political philosophy. Hollenbach realizes that a pluralist society, by definition, involves disagree-

ment about the very meaning of human good, but this in itself, he thinks, is no reason to downplay the importance of the very notion of the common good. Or again, Hollenbach is willing to grant that the quest for community or for the common good can lead to pathological results if misdirected, as in upper-middle-class “lifestyle enclaves.” But these should not be confused with Aristotle’s stronger community, the

polis, the recovery of which was partially the goal of the U.S. Catholic Bishops 1986 letter on the economy, Hollenbach thinks.’ And to achieve a po/is involves more than toleration or a live-and-let-live attitude that avoids introducing conceptions of the full human good into political discourse. Rawls’s method of avoidance is part of a commendable hope to neutralize potential conflicts, according to Hollenbach, but the result of this method is disastrous:

A principled commitment to avoiding sustained discourse about the common good can produce a downward spiral in which shared meaning, understanding, and community become even harder to achieve in practice. Or, more ominously, when the pluralism of diverse groups veers toward a state of group conflict with racial or class or religious dimensions, 69

70 The Common Good pure tolerance can become a strategy like that of the ostrich with its head in the sand. In my view, this is just what we do not need.*

What we need, according to Hollenbach, is the realization that a human being is, as Aristotle suggested, a political animal (zoon politikon), although Hollenbach

does not seem to notice that Rawls also agrees with this claim. It is doubtful, however, if Rawls would agree with the view, supported by Greek etymology and

by Hollenbach’s “personalist communitarianism,” that privacy is necessarily a state of privation. Jews, Christians, and Muslim believers can agree that God called Israel precisely as a people rather than as individuals one at a time. Hollenbach infers from this, however, that political liberalism violates the communitarian nature of God’s call by placing us in an “individualistic isolation” that “is finally a prison.” The question seems to be, from the perspective of political liberalism, whether the call received by religious communities (which in itself is perfectly compatible with liberal justice) means that the whole body politic is being called. Another question is

whether the reasonableness required to participate in the original position, and the equality and difference principles, can plausibly be described as leading to “individualistic isolation.” Nonetheless common ground between Hollenbach and political liberalism can be established when Hollenbach rightly emphasizes that justice is, as Thomas Aquinas noted, the premier moral virtue, and that in recent decades various religious organizations and authorities, including the papacy and the World Council of Churches, have been among the strongest advocates of democratization on the world stage so as to promote justice. It is this commendable tendency recently exhibited by religions that makes overlapping consensus easier than it would be otherwise.” Do liberals agree with religious believers that solidarity is, as Pope John Paul II puts it, a virtue? Hollenbach thinks not. But two sorts of solidarity or common good should be distinguished here: (1) the common good as established though some singular comprehensive religious (or philosophical) doctrine; and (2) the common good as established through a pervasive willingness to abide by fair terms of agreement among people with different comprehensive religious (or philosophical) doctrines. The latter is a type of solidarity—indeed a type of love, according

to Rawls, or a type of metacommunity—largely ignored by Hollenbach. He is more fascinated by an “intellectual solidarity” among Catholic intellectuals that provides a model for what can be hoped for in society as a whole. From my perspective, however, informed by thirty-seven years as a student or teacher in Catholic schools, intellectual solidarity (in the first sense distinguished above) even among Catholic intellectuals is a longshot, much less such a solidarity among intellectuals in general. Io be fair to Hollenbach, we should notice that the discourse

across boundaries found in the history of Christianity—early Palestinian Christians interacting with the Hellenistic and Roman worlds, Augustine in dia-

The Common Good 71 logue with Stoic and neoplatonic thought, Thomas Aquinas appropriating ideas from pagan and Jewish and Muslim sources—has, in fact, occurred and illustrates in microcosm the sort of solidarity that he hopes for in the macrocosm.° Hollenbach admits that there are similarities between Rawls’s thought and Catholic social thought since the Second Vatican Council, similarities that Rawls himself needs in order to defend the notion of overlapping consensus. These similarities include the importance of freedom as an expression of human dignity, the likeness between the difference principle and the preferential option for the poor, and so on. Like Jackson, however, Hollenbach sees a shift in Rawls from the Kantian character of ‘IJ to the pragmatist character of PL, where, he alleges, the original position has been largely replaced by the historical presuppositions of Western consti-

tutional democracy. Hollenbach is on thin ice here for two reasons: first, Rawls explicitly retains the original position in PL and LP; and second, the presuppositions of Western constitutional democracy were not absent in TJ.’ There is some legitimacy to Hollenbach’s point here, however, when it is noticed that the theory of justice in PL is not intended as an argumentative coup de grace directed at those who do not already share the propositions of Western constitutional democracy.* Rawls is not claiming, as Hollenbach alleges, that presuppositions about the common or ultimate good are “private” because the ideals of churches and associ-

ations are certainly public at least within the church or association, and perhaps public in a more general sense if they overlap with the comprehensive doctrines of others. Virtue and justice, as Hollenbach correctly notes, become matters of cooperation among people with conflicting views of the common good, and human rights are the necessary conditions for such cooperation. In fact, Hollenbach even admits that Rawls’s theory that justice 1s political rather than metaphysical somewhat resembles John Courtney Murray’s assertion that a Catholic defense of religious freedom is “juridical,” in contrast to the ideological relativism found in some defenses of religious freedom. Religious believers in general, he thinks, should welcome a public space that fosters a larger and more encompassing vision of the common good. Hollenbach’s fear is that Rawls’s political liberalism would not provide such a space, nor would it help to resolve disputes regarding the common good if political liberalism really does involve a commitment to the Rawlsian “method of avoid-

ance.” In fairness to Rawls it should be emphasized that he is not prohibiting critical engagement with others who have different views of the common good from one’s own. Indeed he encourages such critical engagement! What we should not do in politics, however, is either assert or deny any religious (or philosophical) comprehensive doctrine that is reasonable. [zs 1s what he means by “avoidance.” It may be the case that Richard Rorty’s (in contrast to Rawls’s) version of liberal-

ism fosters indifference to the truth of all moral and religious claims, hence Hollenbach should rightly fear Rorty’s view because in the long run it may very well threaten the dignity of persons.”

72 The Common Good But should we fear Rawls’s version of liberalism? Louis Dupre agrees with Hollenbach that we should because, even if Rawls’s version of liberalism is not as prone to relativism nor as likely to pose a threat to the dignity of persons as Rorty’s version, it nonetheless exhibits a reluctance to attribute any specific content to the notion of the common good. Fairness, Rawls’s strong suit, is not exactly the common good. As Dupre puts the point: But once we relativize the good to being a matter of private choice, we eo ipso deprive both the choice and the obligation of that absolute qual-

ity that only the good itself can confer. To secure each individual’s “right” to do what he or she pleases, as long as he or she does not hinder others in doing the same, may be expeditious, perhaps necessary from a practical point of view. But it can hardly pass for a common good.

... Unless we show that fairness in granting a free choice is the neces-

sary road to the pursuit of what constitutes a good-in-itself (the Scholastic donum honestum), Rawls’ ideal can count for hardly more than

a description of the civilized manner in which members of a modern society, especially one rooted in the Anglo-Saxon legal tradition, pursue their intensely private goals without becoming a nuisance to others." But Rawls does not deny the existence of “a good-in-itself,” hence he zs saying that granting a free choice is the necessary road to the pursuit of such a good, should it exist. Dupre follows Hollenbach in mistakenly locating the tension in Rawls between public reason and private choice, whereas Rawls is abundantly clear that the choice to accept or to retain a comprehensive religious (or philosophical) doctrine is not exactly private: Rawls’s view is much more social than Hollenbach or Dupre like to admit. And when Dupre does notice the sociality of Rawls’s view it is in connection with what he thinks is an exaggerated concern for the modern ideology associated with economic progress. As a result of Hollenbach’s and Dupre’s generally careful readings of Rawls, several criticisms of his idea (or lack of an idea, in their view) of the common good are on the table. These deserve more careful consideration than is evident in the claim that Rawls is a communitarian or a “common goodist” with respect to distributional questions, but a liberal or anticommon goodist with respect to the freedom of the individual in relation to his or her community. The best way to begin a response to Hollenbach or Dupre is to call attention to the background culture or the culture of civil society that undergirds political liberalism. Here we find churches, universities, religious communities, the arts world, responsible journalism, and so forth, where discussion of the common good flourishes, as it should.” That is, political liberalism not only permits Catholic and other views of the common good, it encourages them, but only when they are expressed appropriately, reasonably, as political values. “The forms of permissible public reason are always several,” especially regarding controversial issues. And they are very often in flux as

The Common Good 73 new variations are proposed and some older views are no longer represented. We will see that “public reason” is not synonymous with “secular reason” in that religious beliefs are welcome in the political arena as /ong as they are reasonable in liberal terms. [his suggests that some comprehensive views— whether religious or nonreligious—are not reasonable, but hegemonic, dogmatic, and unfair. Rawls’s idea of the traditional view of the common good seems to be derived primarily from Thomas Aquinas himself and from the more recent Thomistic perspectives offered by Jacques Maritain and John Finnis.'* He is well aware of the changes that have occured in the natural law tradition that have informed much that has been said by religious thinkers about the common good. Likewise he is open to changes that may have to occur in the future regarding political liberalism, although, as we have seen, it is extremely unlikely that pluralism of comprehensive religious (or philosophical) doctrines will go away any time in the near future.” Justice as fairness includes a view of the common good in several senses, including a basic concern for reasonable regulations to maintain interest in public order, health, and safety. And the difference principle suggests that those who are more advantaged than others cannot say that they should be permitted to acquire benefits that do not contribute to the welfare of others; their natural or social advantages should be seen in political liberalism as part of a common inheritance in that they are not deserved. So also, and this point is almost always neglected in criticisms of justice as fairness, we are not to illegitimately gain from the cooperative labors of others by avoiding to do our fair share: laziness is as morally bothersome, it seems, as unreasonably gaining by virtue of traits we do not deserve. Egoism comes in many forms, but in every case there is a view of the absolutely best consisting in a situation where everyone else joins in to further the egoist’s own view of the good. Luckily in a fair decision-making procedure no one would agree to egoism.” In justice as fairness it makes perfect sense to require sacrifices from citizens in times of social emergency when all or some must pitch in for the “common good” (Rawls’s phrase). But this is a tricky point because what we may be required to do in extremis is not necessarily a helpful guide regarding normal circumstances. For example, if one entered a burning building and only had time to save one of two people inside, one’s son and one’s neighbor, one would surely be justified in saving the son. But this does not mean that in other circumstances it would be legitimate to harvest organs from the neighbor so as to save the life of one’s son if he had a deadly disease. So also, the fact that we can require sacrifices of citizens in emergencies for the sake of the common good does not necessarily mean that in other circumstances we can adopt in political philosophy a comprehensive utilitarian view wherein some citizens’ life prospects are routinely sacrificed for the sake of the life prospects of others.” This criticism of utilitarianism, that when it is made into a political philosophy it often requires sacrifices on the part of individuals for the sake of the common good that are disrespectful of those individuals, is not an attack on the very

74 The Common Good notion of the common good. Political parties, for example, should not be seen as mere interest groups, but rather as advancing some conception of the common good. Restrictions on political activity in pursuit of some version of the common good are only legitimate if they are in the common interest to be fair: All citizens should have the means to be informed about political issues. They should be in a position to assess how proposals affect their wellbeing and which policies advance their conception of the public good."

The “public good” alluded to here is equivalent, according to Rawls, to that enshrined in the medieval maxim that what touches all concerns all. This maxim should be taken seriously and declared as the public intention as long as the government does not aim at the common good in a utilitarian or in an exploitative way. (Political liberalism certainly permits utilitarianism as a reasonable comprehensive philosophical doctrine, but it is not to be equated with a defensible politzcal philosophy.) Since bitter dissensions exist in politics (think of paramilitary groups or sharp

religious antagonisms), sometimes liberty has to be restricted if it conflicts with the common good 17 the sense that such liberty violates the fair terms of agreement that would arise as a result of an impartial decision-making procedure. But intolerant sects are not a permanent aspect of political life; just institutions can, over time, eliminate or at least mitigate their intolerance. In what comes closest to Rawls’s definition of the common good he says: “The common good I think of as certain general conditions that are in an appropriate sense equally to everyone's advantage.”'’ Although Rawls is skeptical as to whether a definition can settle any fundamental question, from this definition of the common good we can see that for Rawls the common good is largely connected to the original position and to the principles that would be agreed to there, especially the difference principle. He leaves open the choice between a private property economy and a soft socialist one, but either way a just society would have to be one that fostered the difference principle and the common good. “Justice as fairness has a central place for the value of community,” according to Rawls, but it is best not to rely on either an undefined loose concept of community or an aggressive view of community as an organic whole with a life of its own distinct from, and superior to, that of its members. Community or the common good is best served when everyone is treated fairly, when basic goods are distributed equally, and when unequal shares of other goods are to everyone’s benefit. These are both formal and material conditions for the just society, contra Dupre’s claim that Rawls’s view of the common good is purely formal. Arrangements for, and financing of, the common good are taken over by the state, which will impose binding rules requiring payment from citizens. In the effort to support the common good certain “externalities” will be produced that counteract the very common good that is the goal. As Rawls notes:

The Common Good 75 there are striking cases of public harms, as when industries sully and erode the natural environment. These costs are not normally reckoned with by the market, so that the commodities produced are sold at much less than their marginal social costs. There is a divergence between private and social accounting that the market fails to register. One essential task of law and government is to institute the necessary corrections... . That political rule is founded solely on men’s propensity to self-interest and injustice is a superficial view."®

Or again: In both a private-property as well as in a socialist society great concern may be expressed for preventing irreversible damages and for husbanding natural resources and preserving the environment. But again either one may do rather badly. It is evident, then, that there is no essential tie between the use of free markets and private ownership of the instru-

ments of production. The idea that competitive prices under normal conditions are just or fair goes back at least to medieval times. While the notion that a market economy is in some sense the best scheme has been most carefully investigated by so-called bourgeois economists, this connection is a historical contingency in that, theoretically at least, a socialist regime can avail itself of the advantages of this system. One of these advantages is efficiency.” Concerning certain public goods the market has historically failed altogether, and regarding the freedom of citizens to have a free choice of careers collectivist varieties of socialism, with their forced and central direction of labor, have a rather dismal track record. In fact, command societies in general seem to be inconsistent with the liberties that citizens can legitimately expect. In this regard a system of markets that decentralizes the exercise of economic power is to be commended, a

decentralization that may very well require strong antitrust intervention on the part of the state. In any event, there are limits to what any philosophical view of justice can accomplish when trying to detail the economic and political machinery in advance. It is nonetheless crucial to indicate how a liberal regime, whether under a soft socialist or a capitalist market-oriented or a mixed economy, fosters the common good, contra Hollenbach.” Acceptance of the principles of right and justice forges the bonds of civic friendship that are conducive to the common good in a constitutional democracy. These bonds are important when it is realized that no one person can do everything she is capable of doing: everyone must select a course of life with the confidence that others will do the remaining tasks necessary for life lived at a high level:

it is through social union founded upon the needs and potentialities of its members that each person can participate in the total sum of the

76 The Common Good realized natural assets of the others. We are led to the notion of the community of humankind... .This community may also be imagined to extend over time. ... Asa pure case to illustrate this notion of social union, we may consider a group of musicians every one of whom could have trained himself to play equally as well as the others any instrument in the orchestra, but who each have by a kind of tacit agreement set out to perfect their skills on the one they have chosen so as to realize the powers of all in their joint performance. ... Only in a social union is the individual complete.” Or again: The development of art and science, of religion and culture of all kinds,

high and low, can of course be thought of in much the same way. Learning from one another's efforts and appreciating their several contributions, human beings gradually build up systems of knowledge and belief; they work out recognized techniques for doing things and elaborate styles of feeling and expression. In these cases the common aim is often profound and complex, being defined by the respective artistic, scientific, or religious tradition; and to understand this aim often takes years of discipline and study. The essential thing is that there be a shared final end.”

This is not perfectionism in the strong sense, however, in that the assessment of excellences in each of these examples takes place within a democratic context. There are many types of social union, and a well ordered and just society is in effect a social union of social unions in which the regulative principle is that each citizen wants others to act from principles that would be agreed to in an initial condition of equality. But the larger social plan that contains many smaller plans or social unions does of establish a dominant end, as in the greatest excellence of culture or a religious super-unity. It is rather a social union (or common good) of social unions (or common goods) in which each can participate as a free and equal member.” A conception of the good is ultimately connected to some comprehensive religious (or philosophical) doctrine. Each conception of the good, it should be noted, is not fixed, but develops as the persons holding it mature over the course of life. A shared political life does not necessarily require a shared comprehensive (or philosophical) doctrine, nor does it necessarily require a Kantian comprehensive autonomy, but only a commitment to political autonomy in a context where pluralism is a given, and where reasonable people seek common ground. Such a search is what justice as fairness is all about. The procedures developed very often appear to be neutral, and are intended as such, but there are also substantive claims at work in liberal proceduralism (as in the desirability of political equality, auton-

The Common Good 77 omy, and reasonableness) that nonetheless fall short of comprehensive liberalism, the latter a view that contradicts the beliefs of many religious believers.” It should now be clear that the idea of political community should be rejected if this idea means a unity based on one comprehensive religious (or philosophical) doctrine. Political community should be embraced, however, if it is based on an overlapping consensus of different comprehensive religious (or philosophical) doctrines. The mutual dependence involved in overlapping consensus is in no way mysterious; in fact, it is found whenever there is cooperation among people with different comprehensive doctrines. The glue that holds together a liberal society is not a concept of the good, religious or otherwise, but rather a shared public conception of justice. By accommodating a plurality of conceptions of the good, lib-

eral society seen as a social union of social unions can coordinate the various activities made possible by human diversity into a just society.” A final comment is needed on Hollenbach’s desire to return to the stronger community described by Aristotle. It should not escape our notice that in preindustrial societies individuals were indeed incorporated into groups in a stronger sense than the inclusion found in political liberalism, but the preindustrial incorporation was brought about in ways that we would not find livable or justifiable today. For example, Aristotle’s po/is had few free citizens in that most were slaves; in addition, most were illiterate and ignorant, which no doubt was conducive to the stronger sense of community there than in a liberal state, as Walter Ong has emphasized. Toleration is not a sufficient condition for a just society, but it is necessary for one. Finding what the sufficient conditions are cannot be managed easily, and Aristotle is of limited help here (again, as Ong has rightly pointed out), even if this will come as a blow to some. The challenge to religious believers is to learn how to be aware of, and to critically examine, the past in order to bring about a just society in the world in which we actually exist in the present.” Paul Sigmund speaks for many religious believers when he says that democracy should be based on a view of the human person that closely resembles the views of Christian (in Sigmund’s case, Catholic) theorists. Liberal democracy is not only about Rawlsian right or justice, with its thin theory of the good, but is

also about a thick theory of the good.’’ There are several reasons to take Sigmund’s challenge seriously, one of which is that clarification of “the good” is necessary to understand better “the common good.” A definition of goodness can proceed by way of two stages. First, A is a good X if and only if A has the properties it is rational to want in an X. Second, A is a good X for K if and only if A has the properties it is rational for K to want in an X. These two points illustrate the Rawlsian beliefs that goodness depends, in part, on context; that goodness depends, in part, on the aim of a rational agent; and that the good develops rationality. One can say that a person is a good assassin without approving his skills; whether the assassin is a good person is a different issue.

There is a descriptive, rather than a prescriptive, character to the goodness of

78 The Common Good many things in that these things are good if they have the properties it is rational to want in these things. When “good” is used prescriptively, it carries recommendatory force precisely because of its descriptive sense.”* A distinction between primary and nonprimary goods is required for understanding Rawls’s view. Any person with self-respect would, from the perspective of the original position, desire that the former be present no matter what else is wanted. Further, there is general agreement among philosophers of various persuasions that goodness be seen, as above, as rationality. Hence it makes sense to suspect that a good person, rather than a good assassin or a good farmer, is one who has to a higher degree than the average person the properties that, from the perspective of the original position, it is rational to want in a person. [hese properties would include, I assume, being a self-respecting member in good standing of some particular community and engaging in cooperative efforts with members of other communities. Evil people, by way of contrast, violate the rights of others in ways that parties in the original position would deem unjustifiable. Beyond primary goods (freedom of thought, movement, and choice of occupation; income and wealth; etc.) and those mentioned above that would be chosen in the original position, however, we should remain cautious.” This caution is due to several factors, including the possibility that citizens will change their minds about which conception of the good they will adhere to; in fact, they may have religious conversion experiences, as Rawls notices. One's moral power to form and rationally pursue a conception of the good is such that this conception is, for various reasons (including divine influence), subject to revision. lherefore we should not stipulate in detail what the good will be for each person based on social class or religious affiliation, even if the person in question may find it unthinkable to view him- or herself apart from his or her religious (or philosophical) convictions. Indeed, it is true that if we suddenly lost these convictions we would be disoriented. Usually when changes occur to our view of the good they are gradual, but sometimes they occur suddenly such that in a very real sense we are not the same person as before. Rawls himself cites the example of Saul of Tarsus on the road to Damascus, who became St. Paul.°° For the purposes of public life, Saul of Tarsus and St. Paul are the same person, and it is important from a political point of view that people be allowed to convert from one reasonable view of the good to another without being persecuted, as was St. Paul. Otherwise people are, to varying degrees, treated like slaves who are, in effect, socially dead because they are not sources of claims. (Although, oddly enough, slaves were usually held to be morally responsible for their actions.) By way

of contrast, citizens who at any given time have a determinate conception of the good are politically autonomous: they are free within the limits of political justice to pursue any permissible conception of the good. Each of these permissible conceptions will, presumably, require primarily goods that are the necessary conditions for pursuing higher-order interests, whether in public or nonpublic life.”

The Common Good 79 Because we are reasonable, we can understand various religious (or philosophical) comprehensive doctrines of the good, and we may be drawn to at least one (or some) of them. Any attractive political (rather than comprehensive) conception of the good will conform to the goodness as rationality thesis and to the idea of there being primary goods. Members of a democratic society have, at least in an intuitive way, a rational plan of life. To claim this much is not to specify any particular political view or any particular comprehensive view of the good. Such specification ought not to be made by the government, either. It should no more maximize the fulfillment of wants or strong perfectionistic values than it should act to advance Catholicism or Protestantism. Obviously the government should prohibit the enactment of some conceptions of the good, those that violate basic rights and liberties. But if these are not violated we are free to affirm our own conception of the good, which need not be, and probably is not, idiosyncratic.” What is most likely is that we will affirm a conception of the good rooted in some religious (or philosophical) tradition in which we have been raised, educated, or both. When we reach the age of reason we find some view at the center of our loyalties. Some take this view on faith or are satisfied with it precisely because it is the traditional view; others adopt a view of the good only after intense intellectual scrutiny; still others use a subtle blend of faith and reason. The fact that many have views of the good largely informed by faith is no problem for political liberalism as long as these faith-informed views are within the bounds of justice. To have a defensible ¢heory of justice, however, or a theory regarding the place of the good in political justice, requires rational argumentation, and the participants in the original position must be willing to be moved by reasons of justice as such.” Obviously it is not only intellectuals who have determinate conceptions of

the good, which is appropriate because if citizens had no conceptions of the good/common good that they tried to enact, a Just society would have no point. Some have the impression that Rawls needs to make this claim in order to respond to communitarian critics of liberalism, but he makes no such concession in that the point is crucial to theory of justice and to political liberalism themselves regardless of the communitarian stance.” Justice as fairness assumes that citizens have some determinate conception of the good, which, in the cases of many religious believers, prompts them to perform supererogatory acts beyond the confines of justice. No obstacles are put in the path of those who desire to explicate and act on higher-order moral sentiments that serve to bind a community of persons together as Jong as such higher-order sentiments are not imposed on others through the political process.*

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CHAPTER SIX

METHODOLOGICAL CONSIDERATIONS

Rowe believers may very well worry that, even if Rawls can articulate a compelling case in political philosophy regarding the good and the common good, there is no place in political liberalism for distinctively religious beliefs based on faith or on religious intuitions. [his worry is misplaced, as I will now try to show. The key insight here is that no one level or mode of approach is foundational in political philosophy: particular judgments in particular cases and abstract principles each have an initial credibility, as do a view of the good we inherit from re-

ligious tradition and abstract reasoning about this view. Reflective equilibrium includes our convictions at all levels of generality. The aim of the original position is to generalize and carry to a higher order of abstraction the normal effort of rea-

sonable human beings to be fair. In order to keep both our abstractions and our concrete intuitions (informed as they are by religious and other traditions) honest, we should go back and forth, sometimes altering the conditions of the contractual circumstances in the original position, sometimes altering our traditional religious assumptions or intuitions and comforming them to principle. Reflective equilibrium is reached when “our principles and judgments coincide; and it 1s reflective since we know to what principles our judgments conform and the premises of their derivation.”"

Justification of a political view should never resort to self-evidence, but to mutual support of many considerations in a coherent view. Perhaps the most crucial of these considerations in justice as fairness is the original position: It is natural to ask why, if this agreement is never actually entered into, we should take any interest in these principles, moral or otherwise. The answer is that the conditions embodied in the description of the origi-

nal position are ones that we do in fact accept. Or if we do not, then perhaps we can be persuaded to do so by philosophical reflection.’

81

82 Methodological Considerations That is, the best version of someone's sense of justice is not one that is prior to rational examination of the concept of justice, but is rather one that fits judgment in reflective equilibrium after the original position has been considered. Of course, the mere fact that a situation is in equilibrium does not imply that it is just, but the method of reflective equilibrium is a marked improvement over the two most common methods of ethical justification used by philosophers: (1) appeal to intuitions or self-evident principles, which, by the vehicle of deductive reasoning, allows a transfer of the conviction embedded in the initial premises to a conclusion; and (2) definition of moral concepts in terms of presumptively nonmoral ones.” There are perhaps certain virtues to these two methods, but they are woefully inadequate when taken in isolation. Reflective equilibrium views justification of principles in political philosophy in much wider terms. Mere proof, which shows logical relations among propositions, is not justification. The latter requires an argument that is addressed to those who disagree with us, or to oneself when one is of two minds. Justification, that 1s, proceeds from a certain consensus and aims for a stronger one. Hence it is a strength of political liberalism that it incorporates the best in Aristotelian and Kantian views and provides a way for religious believers to articulate both their own comprehensive doctrines and their desire to live harmoniously with others who hold different comprehensive doctrines. Certainly one

of the aims of political philosophy should be to look for possible agreements among people where none seem to exist." The original position is conducive to a stronger political consensus than has existed historically because it puts together enough reasonable constraints in a single conception so as to make obvious which principles ought to be chosen. It is a “constrained minimum’ that provides a workable theory of justice and that enables us to see the tendentious nature of many of our unconsidered judgments or intuitions. Because the original position asks little of the parties (e.g., they are assumed to be mutually disinterested rather than strongly altruistic), it provides an opportunity to develop principles that can adjust wide and deep conflicts.” If reflective equilibrium is obtained, it can be said to be an example of political constructivism, which is more analogous to constructivism in mathematics than it is to the simple-minded view that political principles are arbitrary or biased inventions of those in power. Political constructivism can perhaps best be understood by way of contrast with rational intuitionism. This latter position con-

sists in the beliefs that there is an independent order of moral values and that these values can be known by theoretical reason; for religious believers who are intuitionists, this order of moral values is said to lie in God’s mind. In political constructivism, however, principles of political justice are the outcome of a procedure or a structure that is part of practical reason. The persons who do the constructing, it is assumed, are capable of understanding principles both of the right and of the good. Although it does not use the concept of truth in the effort to reach reflective equilibrium, it does not deny the concept of truth, as we will see. It is up

Methodological Considerations 83 to defenders of each comprehensive religious (or philosophical) doctrine to say how the doctrine in question connects with the concept of truth. Although political constructivism and its goal (reflective equilibrium) are dif-

ferent from rational intuitionism, they do not contradict intuitionism. Despite what might be assumed to be the case regarding the word “constructivism” in political constructivism, the order of moral values is not made as a result of the procedure of construction. Rather this order of values is clarified, corrected, purified of inconsistencies and hyperboles, and so on.° Consider the following example. Suppose someone inherits from religious or educational or philosophical tradition the belief that it is morally permissible to treat women as intellectual or cultural inferiors to men. And suppose this belief is intuited in an intense way; the person who holds this belief rea//y believes it. Rawls’s position is that the “construction” of the political principles that are related to this belief occurs when the belief is examined from the perspective of the original position, at which time and after we are in a position to go back and forth from judgment (or intuition) to principle until reflective equilibrium is reached, or at least asymptotically approached. In this particular example the belief may have to be changed dramatically. Even in a less extreme example, reasonable people are open to the possibility that their relatively unconsidered beliefs may have to change in some way, although in many cases the changes would not have to be as severe as those associated with

someone who started out a misogynist. Rawls asks some basic questions that should be of interest to religious believers in this regard:

How are fair terms of cooperation to be determined? Are they to be simply laid down by some outside authority distinct from the persons cooperating, say by God’s law? Or are these terms to be accepted by these persons as fair in view of their knowledge of an independent moral order? Or should these terms be established by an undertaking among those persons themselves in view of what they regard as their reciprocal advantage? Justice as fairness ... adopts a form of the last answer.... [his is because, given the fact of reasonable pluralism, citizens cannot agree on any moral authority, whether a sacred text, or institution. Nor do they agree about the order of moral values, or the dictates of what some regard as natural law. .. . Thus, it is only by affirming a constructivist conception—one which is political and not metaphysical—that citizens generally can expect to find principles that all can ac-

cept. [his they can do without denying the deeper aspects of their reasonable comprehensive doctrines.’

No doubt some religious believers will not be convinced by Rawls’s view here. Perhaps they could profit by thinking through carefully certain beliefs that were perfectly acceptable in their day, but which could have been (vastly) improved as a result of the reasoning practiced in the original position: Abraham’s belief that he had a

84 Methodological Considerations command from God to kill Isaac, Calvin's aforementioned belief that it was legitimate to persecute Servetus, Catholic and Eastern Orthodox anti-Semitism over the centuries, and so forth. And we will deal with several contemporary examples later. The key point to make here is not that religious intuitions are worthless, but rather that they need, from a political point of view, to be reasonably/rationally examined so as to cautiously approach reflective equilibrium. Our back and forth approximations to reflective equilibrium should not lead us to see it in a rudderless, relativistic flux. We can accept with confidence, albeit provisionally, considered judgments as relatively fixed points, as relatively stable moral facts, such as the fact that slavery is unjust. That is, if someone wants to morally support slavery we should hear that person out, but the burden is on ¢hat person’s shoulders. There is nothing wrong with initially presupposing the reasonableness of religious (or philosophical) tradition in politics as long as this tradition is open to the sort of critical inquiry made possible by an unbiased procedure. In this regard justice as fairness is similar to science, where adjustments have to be made to theories that do not quite fit the data, just as we might be skeptical, although not utterly dismissive, of data that contradict (near) universally accepted theory. Justice as fairness is much more complicated than the (apparently Rortean) view that justice is the articulation of shared meanings whatever they may be.” And perhaps more important, justice as fairness is more complicated than what might seem to be the case when Rawls (misleadingly) compares the inhabitants of the original position to Kantian noumenal selves with an Archimedean ability to change the whole of religious (or philosophical) tradition on issues of justice. To speak in this way gives the impression, an impression corrected by what Rawls says about reflective equilibrium, that we need not engage seriously with concrete intuitions or unconsidered or largely pretheoretical beliefs. We do have to engage them seriously on Rawlsian grounds.” Habermas in particular emphasizes the fact that even the later Rawls is not, like Rorty, a contextualist or a relativist. His aim, as always, is “to reconstruct a substratum of intuitive ideas latent in the political culture of his society and its democratic traditions” (emphasis added). ‘These intuitions are found im the prac-

tices and traditions of democratic society. Habermas correctly notes, contra Sandel, that for Rawls both an unreflective appeal to an independent order of moral facts and moral skepticism are inadequate. (Habermas actually thinks that Rawls goes too far in insisting that comprehensive doctrines can, in fact, be true.) The fact that a political theory of justice cannot determine whether comprehensive religious (or philosophical) theories of the good are true or false is not necessarily to be equated with the belief that these theories are neither true nor false. In fact, the reasonable (as opposed to the rational) is the political equivalent or analog of the true.” Even though the political conception of justice is freestanding, it nonetheless can be mapped into, or included in, or embedded in a comprehensive religious (or

Methodological Considerations 85 philosophical) doctrine; indeed it can be included in any one of several comprehensive doctrines (or antidoctrines like skepticism). As it were, a citizen who accepts political liberalism fills out its justification through an approach to reflective equilibrium by embedding it in some way in her comprehensive religious (or philosophical) doctrine and by seeing it as reasonable or true, depending on what is allowed by the particular comprehensive doctrine in question.” What I have said thus far regarding reflective equilibrium should lead us to doubt that Rawls’s view of justice as political, rather than as metaphysical, is actually a disguised metaphysical nominalism, as Robert Neville alleges.'* Many, perhaps most, citizens will give their political conception a metaphysical foundation as it is embedded in their comprehensive religious (or philosophical) doctrines. Some even do so along the lines of a process metaphysics that 1s in many ways similar to Neville’s own views.'’ These further metaphysical claims political liberalism itself neither asserts nor denies, hence a fortiori religious accounts of the truth of moral or political judgments are not criticized as long as they are reasonable. Even if it turned out that only one comprehensive religious (or philosophical) doctrine were true, many such doctrines could be reasonable: “Holding a political conception as true, and for that reason alone the one suitable basis of public reason, is exclusive, even sectarian, and so likely to foster politcal division.” Actually some comprehensive religious (or philosophical) doctrines must be true in the minimal sense that they deny obviously false or incoherent doctrines.“ The familiar historical view of political philosophy is that its concepts are consequences of comprehensive religious (or philosophical) doctrines, as in the divine right of kings. This is quite different from a freestanding political view that can then be included in a comprehensive religious (or philosophical) doctrine. While Rawls hopes that political liberalism can be related to diverse reasonable comprehensive religious (or philosophical) doctrines, it should be formulated independently of these doctrines so as not to confuse it with any particular comprehensive doctrine. This is different not only from Rorty’s skepticism, but also from Habermas’s comprehensive view wherein, in the Marxist tradition, religious and metaphysical views are often criticized. Rawls offers no such criticism when citizens go “beyond” or “deeper” (Rawls’s words) so as to make political liberalism congruent with their comprehensive religious (or philosophical) doctrines.” The feature of ‘TJ that most bothers the later Rawls is its treatment of stability, a concept that is largely replaced in PL by the concept of overlapping consensus, a concept which, along with reflective equilibrium, allows Rawls to respond adequately to the methodological concerns of some of his critics. But even regarding stability there are some issues voiced in TJ that are retained in the later Rawls. A well-ordered or stable society is one that is designed for the sake of its members and is regulated by a public conception of justice. Further, in order to support the principles of a well-ordered society, it is not necessary to invoke theological or metaphysical doctrine, although the later Rawls makes it clear that

86 Methodological Considerations these can in fact be invoked by citizens if they wish, given certain restrictions to be detailed later. If we wish to include religious believers among those who can reasonably support political justice, as we surely want to do, then the opportunity to invoke theological or metaphysical support for democratic principles is a tremendous boon. But, once again, such an invocation is not necessary, nor is it necessary that we imagine another world that compensates for the inequalities in this one, although some religious believers (not me) may wish to do this and are free to do so in political liberalism."° A stable or well-ordered society is one where, when institutions are changed, they remain just, or at least approximately so. The best way to achieve this is to have a concept of justice that can be defended before others without belittling or

rejecting (as does Habermas) the deepest religious (or philosophical) commitments of many people. Diverse reasonable people can affirm justice as fairness. The alternative to justice as fairness is to have a society where citizens are grouped according to their full justifications or according to their comprehensive religious (or philosophical) doctrines, such that their political conceptions need not be, and likely would not be, shared. (Wolterstorff is a prime example here.) On this alternative it seems that only a modus vivendi or a Hobbesian truce would be possible, not a more substantive overlapping consensus, to use Rawlsian terms. (Sher, by way of contrast, hopes for at least a minimum perfectionism or a certain theory of the good that can be agreed on generally, a view that is perhaps more similar to Rawls’s view than he thinks.) On the more plausible alternative offered by political liberalism, the hope is that as citizens embed their shared political conception in their respective comprehensive religious (or philosophical) doctrines, they will see that their political values are normally ordered prior to their nonpolitical values when the two conflict."” There is no shortage of overlapping consensus in how people generally act in contemporary democratic societies, but this overlapping consensus often plays too little a role in how people articulate their views. Perhaps this is due to the fact that some people confuse reasonable pluralism with pluralism simply as such. The latter may be unfortunate, but not the former. Reasonable pluralism 1s a good thing from a political point of view in that liberal justice is an essential part or module that can be inserted into, and supported by, various comprehensive religious (or philosophical) doctrines. Faith is free in the sense that a church is a voluntary society from a political point of view, rather than from a theological one. People should be able to leave it, and excommunication should not affect civil relationships, as Locke realized in his 1690.4 Letter Concerning Toleration. Free membership in a church is expressive of human dignity, as is overlapping consensus itself. Whereas a mere modus vivendi or a Hobbesian truce can be brought about under duress, overlapping consensus is brought about through the willing participation of citizens, a willingness that is due, in part, to the fact that they can draw on their comprehensive religious (or philosophical) doctrines in the full justification of their political views.”

Methodological Considerations 87 Some religious believers will no doubt object to the fact that in political liberalism one tries, as far as possible, to avoid the question of the truth or falsity of

comprehensive religious (or philosophical) doctrines. This is the meaning of Rawls’s claim that in political liberalism we leave theology (and philosophy) alone. Those who object may do so because they claim to know that their comprehensive religious (or philosophical) doctrine is true, a knowledge that for obvious reasons cannot be affirmed in political liberalism. Sometimes a comprehensive religious (or philosophical) doctrine can nonetheless be rejected, most notably when it is unreasonable, as this term is used in justice as fairness. And within one’s comprehensive religious (or philosophical) doctrine a political conception of justice can be seen as true if the doctrine allows this. Further, those issues that are taken off the political agenda (e.g., when serfdom or slavery are ruled out) may seem to presuppose a stance regarding the truth or falsity of certain comprehensive religious (or philosophical) doctrines. But there is no gag rule here, as we have seen. It is just that the burden of proof is too great to make defenders of serfdom or slavery seem reasonable; it is too hard to defend these practices and yet reach an approximation of reflective equilibrium. No matter how many issues are taken off the political agenda, some will al-

ways remain, it seems, as in exactly where and how to build the walls between church and state. But they have to be built somewhere. It is only by bypassing the profoundest controversies in theology and philosophy that we have any hope of maintaining “a stable overlapping consensus.””” Everyone should be willing to give some ground politically. Rationalists who claim that all truth worth having can be

fully established through reason need to take seriously the claims of those who find a role for faith regarding such matters; so also, religious believers who think that the very salvation of souls is at stake concerning some political questions need to take seriously the fact that some reasonable people are atheists or agnostics. To deny that religious beliefs can be fully established in the political forum is not to say that they are false. But just as there are limits to religious discourse in politics there are also limits to public reason. We should beware of both religious believers who think that because their beliefs are true that state power should be used to enforce them as well as agnostics who would prohibit all public expression of religious beliefs, as we will see. Justice as fairness 1s abstract but not comprehensive: it is the illegiti-

mate encroachment of comprehensive doctrines, whether religious or nonreligious, into politics that is objectionable. We need abstraction in politics, by way of contrast, in order to be able to survey the overlapping consensus that is possible among diverse comprehensive religious (or philosophical) doctrines. It is significant that these diverse comprehensive doctrines are usually not fu//y comprehen-

sive. [hese normally exhibit a sort of looseness that allows an overlapping consensus to emerge out of a mere modus vivendi, such as the principle of toleration that emerged out of the modus vivendi after the Reformation.”

88 Methodological Considerations There are at least three possibilities, two of which are conducive to overlapping consensus: (1) liberal political principles can be derived from a comprehensive religious (or philosophical) doctrine; (2) liberal political principles can be

compatible with—they can be embedded in—a comprehensive religious (or philosophical) doctrine; or (3) liberal political principles can be incompatible with a comprehensive religious (or philosophical) doctrine. (1) and (2) occur with respect to those (relatively) comprehensive doctrines wherein it is important to consider “what is is reasonable to expect others to think who stand to lose when our reasoning prevails.””* This consideration, which first appears in a nascent state in a modus vivendi or a Hobbesian truce, reaches fruition when citizens accept liberal justice, not reluctantly but willingly, in an overlapping consensus. [hat is, sim-

ple pluralism can mature into reasonable pluralism. It is both reasonable and rational to move out of the narrow circle of one’s own views when it is realized that members of other groups are not to be demonized. It is not necessarily the precise content of a comprehensive religious (or philosophical) doctrine that makes overlapping consensus possible, hence citizens need not waste time looking into the content of other doctrines. (Although they

are free to do so for reasons of intellectual or aesthetic or religious curiosity.) Rather they should give weight to the fact of, the very existence of, overlapping consensus regardless of how it comes about. Religious associations may have quite different ways of supporting a reasonable consensus. But if the consensus 1s reasonable, we can be happy with the resulting political order.” The comprehensive liberalisms of, say, Kant or Mill are no more held by citizens generally than are any particular religious doctrine, hence, despite the fact that there are Kantian e/ements in Rawls’s view, his overall stance should not be confused with Kant’s. In Rawls’s political rather than comprehensive liberalism, only a few political questions can be adequately resolved, and political wisdom consists in identifying those few and correctly ordering them in degree of urgency. This will allow us to structure the basic institutions of society so that it is unlikely that intractable conflicts will so much as arise, as well as to make clear and simple political principles that are publicly understood. The two principles agreed to in the original position are the key illustrations of this latter idea. Political liberalism accomplishes a great deal with its parsimony, however, if it can take the most divisive issues off the burner and if it can add to society’s political capital by inculcat-

ing into citizens the virtue of tolerance, including the readiness to meet others halfway. (he term “capital” is appropriate here because toleration is built up gradually over time.)” Comprehensive liberalism has very definite views of what is valuable in life, of what virtues and character traits are desirable, and of how much of our nonpolitical conduct should be arranged. These comprehensive liberal views historically have very often been at odds with religious belief, thus many religious believers have become understandably skittish about too cozy a relationship between reli-

Methodological Considerations 89 gion and liberalism. But, once again, Rawls’s liberalism is not comprehensive. Both liberals and nonliberals alike have to break the habit of thinking that political liberalism has to be either comprehensive or partially comprehensive by dealing with all or many nonpolitical religious or moral questions. On Rawls’s view, politics is not the whole of life.” But it does have an affect on the whole of life. Fairness requires, by way of

the equality principle, that basic liberties be given an egalitarian distribution. It also specifies relevant political principles without relying on any particular comprehensive religious (or philosophical) doctrine. Fairness also requires the sort of social cooperation designated as “reasonableness” by Rawls and it assumes that each citizen can “rationally” pursue her interest in light of reasonable constraints. The basic structure of society, shaped by the equality and difference principles, should exhibit a pervasive form of cooperation. This cooperation should not, however, be extended so far as to coordinate the details of religious pilgrimages or the restoration of cathedrals. We only need to make it possible that people go on pilgrimages or restore cathedrals. At the very least, to publicly fund the restoration of

the cathedral of one religious group would be unfair to other religious groups whose demands are more modest.” Likewise, the difference principle works so that some may legitimately receive unequal shares due to certain talents that they have, but only if such shares are to everyone's benefit, especially the least advantaged. Unequal shares for some cannot

be justified through appeal to determinate final ends and loyalties pertaining to their concept of the good. Restrictions on particular concepts of the good apply even with respect to participation by everyone in democratic self-government as a preeminent good. This goal, common among comprehensive liberals, is but one concept of good among others. If some citizens wish to largely withdraw from po-

litical life they should be free to do so as long as they behave reasonably in the process. [his is quite different from choosing to alienate a basic liberty, as when someone willingly sells himself into slavery, which is a violation of the equality principle and hence should be prohibited. Or, to take a real example, religious believers are free to submit to religious authority as long as they do so reasonably and as long as they realize that they are politically free to withdraw their submission at any time and to apostasize.”°

David ‘Tracy is instructive regarding how recent religious (specifically Catholic) social ethicians have developed a consensus around three points that support political (noncomprehensive) rather than comprehensive liberalism. First, a responsible religious ethics in a pluralist, democratic society is obliged to make its case in terms acceptable, at least in principle, to religious believers and nonbelievers alike. Second, appeals in religious social ethics (specifically in Catholicism) to earlier ideas of reason based on dehistoricized versions of natural law should be replaced with more historically conscious, but not relativistic, ideas of reason. And third, the Rawlsian transition from comprehensive, Kantian liberalism, with its

90 Methodological Considerations largely dehistoricized notion of rationality, to political liberalism, where the historical success of constitutional democracies is assumed, is an example of what needs to occur in an analogous way to natural law theory. That is, the humane ideals of the Enlightenment should be preserved without the (sometimes dogmatically antireligious) baggage of comprehensive liberalism.”’ The key point here is that although political liberalism is not comprehensive, religious doctrines that are (relatively) comprehensive ought to be politically liberal. In political liberalism some citizens will be, to use Sandel’s terms, antecedently individuated if they are also comprehensive liberals. But other citizens in political liberalism will be committed to religious and other communitarian groups where their home base provides a vital aspect of their well-being. Constitutive attachments such as these, once again, are perfectly permissible as long as they are reasonable. The problem here, as Mulhall and Swift rightly point out, is whether

it is plausible to think that people who are deeply committed to particular values or ways of life, perhaps to particular religious doctrines, which do not themselves accord highest priority to the value of individual freedom or autonomy, can nonetheless hold an understanding of themselves as citizens that does.”®

Mulhall and Swift are hyperbolic, however, in saying that asking religious believers to be politically liberal is to ask them in particular to become schizophrenics. Everyone in a reasonable pluralism that is democratic must make a distinction between one’s own comprehensive religious (or philosophical) doctrine and what one should reasonably tolerate in others. Even the comprehensive, agnostic liberal has to tolerate the daily communicant who is reasonable, the orthodox Jew who is fair, and the fundamentalist preacher who does not go “too far” in his desire to live in a Christian country. Religious believers should willingly support the sociality that is promoted by political liberalism. They can, following Karl Barth, see human persons as social in at least two ways. First, social influences obviously leave a mark on people; and second, human beings are social in a normative sense whereby some sort of combination of common goods is required. Religious believers are likely to account for the latter sort of sociality in terms of the claim that human beings are made in the image of God such that cohumanity requires a twosided openness, one to another. But surely not everyone in a reasonable pluralism need adhere to the imago Dei hypothesis.” The assumption in political liberalism is that all citizens have a comprehensive doctrine of some sort that has as one of its parts a political conception. A doctrine is comprehensive, or relatively so, when it includes conceptions of what is of

value in human life generally and not only in politics. Obviously defenders of many religious and philosophical doctrines aspire to be comprehensive. We have seen that these comprehensive doctrines provide the background culture of czvi/ society, which is something different from the properly po/itical culture. This latter

Methodological Considerations 91 is composed, perhaps, of the political elements within a comprehensive doctrine, but it ought not to be derived from the nonpolitical values that are parts of any comprehensive religious (or philosophical) doctrine. It is a mark of liberal democratic societies that when there is a conflict between the nonpolitical values of some comprehensive doctrine and the values of political justice, the latter outweighs the former.” It must be admitted that sometimes an effort is needed to render compatible political liberalism and some comprehensive religious doctrines. Whereas political liberalism can be deduced from a more comprehensive Kantian liberalism, and although comprehensive utilitarianism is an approximation to political liberalism, in comprehensive religious doctrines we must be especially careful that the comprehensive doctrine in question is amenable to a reasonable political interpretation. But Rawls is optimistic. He thinks that all but certain kinds of fundamentalism are amenable to a reasonable political interpretation. He is decidedly nor asking religious believers to compromise on their principles, for no one wants to accept the political conception on that basis. Political liberalism is no more a compromise position than it is an appeal to brute force or a capitulation to unreason. It zs an ad-

justment to the conditions of any social world where citizens are seen as free, equal, and reasonable-rational.”’ To think that independent political values have a further backing, as many religious believers do, does not mean that they do not accept these political values,

nor does it mean that they deny the independence of these values. An adequate theory of political justice can be established as we approach reflective equilibrium regardless of whether or not there are religious believers. In point of fact there are religious believers who claim (correctly, I think) that explanatory depth can be added to this theory—and to the idea of human beings as free, equal, and reasonable-rational—by appeal to theology. But this does not entail that without a comprehensive religious doctrine we could not discourse intelligently and fairly about political issues.” The fear here is that some religious believers would wish to manipulate the political values from behind the scenes like puppets. It is possible for this to occur especially in those circumstances where it is difficult to tell where a political conception ends and where its interpretation begins. Some interpreters may wish to play fast and loose with the conception. The goal in justice as fairness, therefore, is to be as clear as possible so as to limit the possible interpretations of a conception of political justice. But any shift from theory to practice leaves certain contingencies unresolved. For example, in justice as fairness there is a prominent place for freedom of religion, including the freedom to affirm no religion, along with some notion of the separation of church and state, but this leaves open the question of whether church schools should receive public funds, or in what way they should receive funds if they should receive them.” I will return to these and other practical issues later.

92 Methodological Considerations Here I am trying to isolate the theoretical connection between a comprehensive religious doctrine and an independent conception of political justice. We have seen that it is not sufficient, either from the perspective of a comprehensive reli-

gious doctrine or a liberal view of political justice, to settle for a mere modus vivendi or Hobbesian truce. What is needed is an understanding of how citizens of faith can be wholehearted members of a democratic society, even when their comprehensive doctrines do not prosper under a democratic regime, and in fact may decline. Under a modus vivendi we may have social stability, but not for the right reasons. For example, some may endorse a modus vivendi in order to stem a decline in influence in one’s own comprehensive religious doctrine. Io endorse political justice for the right reasons, by way of contrast, is to do so even if it means a decline in popularity of one’s own comprehensive religious view. To really view citizens as free, equal, and reasonable-rational—in religious terms, as made in the image of God—is to be open to the possibility that they will walk away from one’s favored comprehensive religious doctrine that one firmly believes to be true.”* Although no one is expected to put her reasonable comprehensive doctrine in danger, everyone is expected to give up the hope of changing the constitution so as to establish its hegeomony or even its influence and success. Jews (outside of Israel) have known this for centuries; the vast majority of Christians have gradually come to know it; and even in Islam there are some rays of hope in this regard. Abdullahi Ahmed An-Na’im proposes reconsidering the traditional interpretation of divine law (Sharia), which historically has been based on the teachings of the later Medina period of Mohammed. By way of contrast, the earlier Mecca period’s teachings, which An-Na'im thinks both contain the fundamental message of Islam and are more practical, permit and perhaps encourage constitutional democracy in that these teachings support the equality of men and women, offer freedom of choice in matters of faith, and so on.* Only by endorsing a reasonable constitutional democracy can we make sure that the liberty of some citizens is consistent with the equal liberty of others. The religious, rather than the political, way to make this point is to say that God sets limits to our liberty, limits that should lead the religious believer to a sort of toleration of reasonable religious differences that are at least consistent with, and possibly supportive of, more properly political toleration of reasonable differences.”° Consider the story of the Good Samaritan (Luke 10: 29-37), where it is unclear if the values appealed to are, from a political perspective, either religious or supererogatory, on the one hand, or properly political values that are obligatory for all citizens, on the other. The story could be taken to support an imperfect moral duty of mutual aid as found in the famous fourth example of Kant’s Grundlegung. Or again, the difference principle itself can be seen as an articulation of values not unrelated to, indeed which receive inspiration from, this story. Finally, the story

can be used to support the recent Catholic bishops’ preferential option for the poor. It is best not to crowd out any of these interpretations. In any event, there

Methodological Considerations 93 need be no animosity between religion and democracy, as was the case regarding the comprehensive liberalism of the Enlightenment: The conflicts between democracy and reasonable religious doctrines and among reasonable religious doctrines themselves are greatly mitigated and contained within the bounds of reasonable principles of justice in a constitutional democratic society. This mitigation is due to the idea of

toleration, and I have distinguished between two such ideas. One is purely political... . The other is is not purely political but expressed from within a religious or a nonreligious doctrine. ... Of course, citizens may think that the grounding reasons for toleration and for the other elements of a constitutional democratic society are not political but rather are to be found in their religious or nonreligious doctrines. ... They may see the political reasons as superficial, the grounding ones as deep. Yet there is no conflict here.°’ Rawls’s helpful way of summarizing his view is as follows:

(1) Reasonable persons do not all affirm the same comprehensive doctrine. [his is said to be a consequence of the burdens of judgment... . (2) Many reasonable doctrines are affirmed, not all of which can be true or right (as judged from within a comprehensive doctrine). (3) It is not unreasonable to affirm any one of the reasonable comprehensive doctrines. (4) Others who affirm reasonable doctrines different from ours are, we grant, reasonable also, and certainly not for that reason unreasonable. (5) In going beyond recognizing the reasonableness of a doc-

trine and affirming our belief in it, we are not being unreasonable. (6) Reasonable persons think it unreasonable to use political power, should they possess it, to repress other doctrines that are reasonable yet different from their own.*®

Obviously some conflicts will remain, including: (a) those deriving from irreconcilable comprehensive doctrines; (b) those deriving from differences in race, status, occupation, gender, sexual orientation, ethnicity, and so forth; and (c) those deriving from the burdens of judgment, where individuals have difficulty in balancing the weight of different kinds of evidence and adjudicating between theoretical and practical judgments. Political liberalism is designed to help resolve all three sorts of conflict. Unanimity of opinion, however, is to be rarely expected even in small groups, despite what some autocrats suggest. For our purposes it is crucial to notice that the claim that only religion can secure the values required for a just society is in effect to claim that the religiously true overrides the politically reasonable, and hence this view is, I think, unreasonable. Most comprehensive religious (or philosophical) doctrines are, or can be made to be, reasonable. Certain fundamentalist doctrines and certain nonreligious comprehensive doctrines, such

94 Methodological Considerations as fascism or communism, provide hideous examples of the sorts of beliefs that always pose a threat to democracy.” It is not wise for religious believers to provide an apologia for other religious believers who carry such antidemocratic baggage. One of the reasons for the superiority of political liberalism to comprehensive liberalism is that the former makes it possible for a// reasonable comprehensive doctrines to meet the condition of publicity by articulating the public nature of political principles. By “publicity” here we refer to public principles of justice, public zstitutions that follow established procedures, and a publicly accessible jus-

tification of the principles of justice and of institutions. In political life nothing need be hidden (which is not to say that nothing is hidden). That is, political principles are to be rejected that might work well if only they were not publicly acknowledged. An example would be a theory of “pure penal law” discussed by late scholastic writers like Vitoria and Suarez. In this theory it was a moral fault to violate natural law, but it was not necessarily a moral fault to violate the sovereign’s law. On this view people would be doing no wrong in concealing their income so as to avoid paying taxes, specifically poorer people who tried to justify resistance to sales and wood taxes imposed by the government as it sought to recoup losses brought about by the expusion of the Moors from Spain.*® From top to bottom such a society should be seen as unjust.

Although no one is above reproach from certain religious points of view (which are informed, for example, by the doctrine of original sin), from a political point of view all are above reproach if they conform to public requirements that are reasonable. Publicity is such an important feature of political liberalism because it is a necessary condition for objectivity, including the objectivity made possible by the original position. An objective point of view is one publicly given by certain appropriately defined reasonable and rational agents who reach agreement; by way of contrast, there is the point of view of any particular agent or particular group of agents. In contrast to Thomas Nagel’s view, where objectivity results from a view from “nowhere,” Rawlsian objectivity comes about through public discourse where each participant is from somewhere. There is no such thing as the view of practical reason as such; rather, practical reason is the result of deliberations of people suitably characterized as reasonable and rational.” Churches, universities, and other associations in civil society have their nonpublic reasons (as do members of the aristocracy or autocrats in predemocratic governments). Hence the reasonable limits of public reason do not necessarily apply to the internal workings of these associations.” Some no doubt find it puzzling that we cannot appeal to the whole truth as we see it in the political realm due to the publicity requirement. But the matter is not so puzzling when certain familiar cases are considered. In a criminal case, for example, the rules of evidence limit what kind of testimony can be introduced so as to ensure a fair trial, prohibiting hearsay, evidence that comes from illegal searches and seizures, abuse of arrested defendents, failure to alert the defendent of his rights, and so on. Likewise the whole point of

Methodological Considerations 95 public reason in politics is to ensure fairness. We have a duty to express our point of view in terms that reasonable persons can understand, otherwise we show them disrespect and hence treat them unfairly.” This is not necessarily to say that nonpublic reasons are false. Rather, the concern here is that 1m politics (1.e., in a context where people are assumed to hold different comprehensive religious or philosophical doctrines) we should show a willingness to get along fairly with reasonable people with different comprehensive docrines who, in a way, speak different languages from one’s own. We show this willingness through pud/ic reason and discourse, which can be spoken by all reasonable parties. Some may think that the publicity requirement has failed when everyone appeals to public values but major disagreements still persist. To abandon public reason when disagreement occurs, however, is, in effect, to abandon it altogether. It is when disagreement occurs that we most need public reason so as to prevent the complete unraveling of a just society. We honor public reason when we give great weight, indeed overriding weight, to the ideal it prescribes. Those who think that nonpolitical and transcendent values are the true ground of the political ones are being asked to show restraint both when they are tempted to offer such a justification without qualification and when they are tempted, out of frustration, to sequester themselves when they are asked to offer properly public justification for their political views. In this regard Rawls defends a view at least somewhat similar to that of Kent Greenawalt.”* Many critics have gotten the mistaken impression that Rawls thinks that we should not debate the comparative strengths and weaknesses of different comprehensive religious (or philosophical) doctrines. ‘This is only partially correct. These should be debated in churches, universities, responsible journalism, and in other centers of civil society that are not publicly political. That is, the comparative mer-

its/demerits of different comprehensive religious (or philosophical) doctrines should not be debated in politics. If they were so debated then comprehensive religious doctrines, it should be noted, would be amenable for refutation and well as for support. As long as these doctrines are reasonable, and as long as defenders of these doctrines respect the rights of others, they should be politically tolerated without the intimidation or threat that may result from heated political debate. And although the specific comprehensive doctrines that are influential in any par-

ticular democratic regime may differ—in East Asia, Europe, North America, India, Israel, and so forth—there is a common need of finding a suitable idea of public reason, an idea that seems to be an essential characteristic of democracy and of political liberalism as such.” Public reason should be expected as a matter of course from judges, government officials, and candidates for public office. sometimes those who seem to be rejecting public reason are actually only asserting the need for full and open discussion of some comprehensive religious (or philosophical) doctrines in the back-

ground culture of civil society. Citizens who are not government officials are

96 Methodological Considerations perfectly free to debate the merits of various comprehensive religious (or philosophical) doctrines, but when they are given the opportunity to judge on some properly political question they should think of themselves as if they were legislators who were looking for the most reasonable resolution to social problems. Government officials and candidates who violate public reason should be repudiated, and ordinary citizens who violate it should be encouraged to develop those habits or virtues appropriate for citizenship in a constitutional democracy.” Once again, public reason has not failed us if a standoff (the term is apparently Philip Quinn’s) occurs, and citizens should be encouraged to be optimistic even in the light of standoffs when it is realized that these occur not only in morality and politics, but in all forms of reasoning, even in science and common sense. Citizens as political agents should think of themselves as fulfilling a duty analogous to that enacted by judges. When there is a legal standoff it is not the prerogative of a good judge to resort to her own comprehensive religious (or philosophical) doctrine. Rather, the judge and citizen and government official alike should strive for impartiality in political questions. For example, in giving reasons to other citizens for our political views we should not see these citizens as members of only one social class or of one comprehensive religious doctrine. To be fair is to be willing to talk to all reasonable citizens.”

I have been arguing that public reason 1s fully compatible with nonpublic reason. In the latter we can say, along with the Thomist, that we all desire, even if unknown to ourselves, the viszo Dez; along with the Platonist that we strive for a vision of the form of the good; or along with the Marxist that we aim for self-realization as species beings; and so on. The political question regarding justice is: are we willing to say, as is Rawls, that only comprehensive religious (or philosophical) doctrines that restrict equal basic rights for all citizens, including freedom of religion, should be denied from a political point of view? Included in this class are certain types of fundamentalism (not all), the divine right of kings, and various forms of aristocracy and autocracy and tyranny. But “a true judgment in a reasonable comprehensive doctrine never conflicts with a reasonable judgment in its related political conception.” Those true elements of religious belief that go beyond political justice, if there are such, nonetheless do not contradict justice, on Rawls’s view, which is much more generous to religious believers than most previous commentators have noted. I assume that what I have said thus far is sufficient to allay the fears of those who think that political liberalism excludes the religious. That this is only partially true will be amplified later when dealing with several practical problems regarding the relation between religion and politics. At present I would like to call attention to the objection that we should have a completely open view with no constraints on the comprehensive religious (or philosophical) doctrines we can bring to bear on political issues. In response to this objection the political liberal should first make it clear that the partial exclusion of the religious from politics does not settle as many ques-

Methodological Considerations 97 tions in advance as the critic of political liberalism might think. Consider the question of school prayer. It might be assumed that political liberalism would deny outright any form of prayer in public schools. But the matter is not so simple, as

we will see later. In a recent article Rawls deals with a famous debate in 1784-1785 between Patrick Henry and James Madison over the establishment of the Anglican Church in Virginia. Both parties in this debate argued almost entirely by reference to political values alone. Henry, for example, did not argue that Christian knowledge was good in itself, but rather that it was an effective way to achieve basic political values like the peaceable conduct of citizens. Madison’s objections to Henry dealt largely with whether religious establishment was necessary to support an orderly society; he concluded that it was not. As evidence he cited Pennsylvania, which had no established church, yet prospered.” Rawls obviously sides with Madison in this debate, but the key point is that public reason is not a view about specific policies, like school prayer. Instead, it is a view about the kinds of reasons on which citizens are to rest their cases in politics. A// free, equal, and reasonable-rational citizens should support some version of the separation of church and state, at least given the fact of reasonable pluralism. Such a support not only protects the state and its citizens from religion, as 1s

usually noted when this question is discussed, it also protects religion from the state. We have seen earlier that it is a mistake to equate political liberalism with egoism or individualism, as is often done. In a related way here we should emphasize that one of the aims of political liberalism is to protect the various interests in the state, individual and associational. he vitality of religion in America may be due to several factors, but one of them surely is the fact, noted by de Tocqueville, that where there is separation of church and state religion need not decline when some particular political party or government declines, as they assuredly will at some point or other. By way of contrast, the relative decline of religion in Europe is largely due to the closer connection there historically between some particular comprehensive religious doctrine and state power.”

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PART TWO

PRACTICE

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CHAPTER SEVEN

THrory To Practice

Rvisess sects have to do more than state their views publicly, however. Some

religious groups, for example, publicly state their intolerance of certain races,

ethnic groups, other religions, and so on. Should religious groups that do this themselves be tolerated? Or again, does an intolerant sect have any right to complain if it is not tolerated? Rawls makes an instructive distinction in dealing with these two quite different questions. Regarding the latter question it seems that someone's right to complain is limited to violations of principles this very person acknowledges. That is, a complaint is a protest addressed in good faith, and a member of an intolerant sect cannot complain in good faith when he is not tolerated, even if he claims that he is only doing what God commands him to do. So regarding the second question, Rawls holds that the member of the intolerant sect has no right to complain. But this does not necessarily mean that we have the right to be intolerant of members of this sect. From the perspective of the original position, no particular comprehensive religious doctrine can bind the citizens generally, nor can one religious authority be cited who will settle theological disputes. Therefore each person must be given an equal right to decide which, if any, religious obligations will be binding. And each should be free to change her faith. In effect while an intolerant sect does not itself have title to complain of intolerance, its freedom should be restricted only when the tolerant sincerely and with reason believe that their own security and that of the institutions of liberty are in danger. .. . The just should be guided by the principles of justice and not by the fact that the unjust cannot complain.’ Having equal liberty of conscience is consistent with the idea that all human beings ought to obey God and accept the truth. But by claiming that we all ought to obey God and accept the truth we have not yet defined a principle of adjudication should some people have different views. Here we must turn to the original position.

101

102 Theory to Practice “Justice is infringed whenever equal liberty is denied without sufficient reason,” and sometimes the equal liberty of the intolerant is infringed without sufficient reason. When this occurs, the rights of the intolerant are violated even if the intolerant themselves have no claim to complain in these matters. It seems

best that someone else complain for them, in American Civil Liberties Union fashion. However:

the tolerant sects have the right not to tolerate the intolerant in at least one circumstance, namely, when they sincerely and with reason believe that intolerance is necessary for their own security. This right follows readily enough since, as the original position is defined, each would agree to the right of self-preservation. Justice does not require that men must stand idly by while others destroy the basis of their existence. Since it can never be to men’s advantage, from a general point of view, to forgo the right of self-protection, the only question, then, is whether the tolerant have a right to curb the intolerant whey they are of no immediate danger to the equal liberties of others.” In this latter case they do not have such a right. The fact that the intolerant have no right to complain does not mean that their right to freedom of conscience can be violated. The hope is that the liberties of the intolerant will convince them to change their belief about freedom. Over time those who benefit from a just constitution will have a tendency to show an allegiance to it:

So even if an intolerant sect should arise, provided that it is not so strong initially that it can impose its will straightway, or does not grow so rapidly that the psychological principle [of intolerance] has no time

to take hold, it will tend to lose its intolerance and accept liberty of conscience. ... When tendencies to injustice arise other forces will be called into play that work to preserve the justice of the whole arrangement. Of course, the intolerant sect may be so strong initially or grow-

ing so fast that the forces making for stability cannot convert it to liberty. This situation presents a practical dilemma which philosophy alone cannot resolve.*

It should be emphasized that in no case should the liberties of some be suppressed to make possible greater liberties of others. If the liberty of the intolerant is to be suppressed, it should be for the sake of liberty itself, as the intolerant themselves would acknowledge were they in the original position. ‘These ideas regarding toleration of the intolerant arose historically with respect to religious tol-

eration, but they can be extended to other cases. In any event, the principles chosen in the original position provide the kernal for a pact of reconciliation between diverse religions, races, economic classes, and so forth. Human propensity to do injustice is not a permanent aspect of community life; in a well-ordered so-

Theory to Practice 103 ciety inclinations to injustice are controlled, hence intolerant religious sects are less likely to exist.” A more difficult case exists where a particular religion (or branch of a religion) has a comprehensive conception of the good such that it can survive only if it con-

trols the machinery of the state and practices intolerance. (Think of ‘Taliban in Afghanistan.) This sort of religion would effectively cease to exist in a politically liberal society, although, as with any idea, it may continue to exist in small segments. Chere is no social world without loss, as Isaiah Berlin has long maintained, but some losses should be welcomed. A politically liberal society has far more space than other social worlds, but even here there is the loss of these branches of religion. Che fact that political liberalism is conducive to the loss of extremely dogmatic religious sects that need to control the machinery of government does not mean that it is biased in favor of individualism, as the simple-minded objection has it. All manners of reasonable religious beliefs can flourish in politcal liberalism.° A less extreme, but more numerous, set of examples is provided by branches of religion that oppose the modern world and wish to lead a common life apart from it. This is fine as far as it goes. But a problem arises with respect to the education of children in these religious groups. Political liberalism would avoid the ageressive efforts of comprehensive liberalism to instill the values of individualism and comprehensive autonomy into these children. Political liberalism does require, however, that children’s education include knowledge of their civil rights so that they are aware of liberty of conscience and that apostasy is not a criminal offense. If they continue in the sect into adulthood it is not due to ignorance of their political liberties. Further, their education should prepare them to be full members of society, including a familiarity with the political virtues, even if they continue to largely sequester themselves as a matter of political choice.’ The state neutrality that characterizes political liberalism is neutrality with respect to questions of comprehensive good, not with respect to questions concerning the right or justice. It is now generally conceded that Christian ethics can embrace a concept of rights, so there need be no major gap between Rawls and Christian ethics on this issue. As a matter of fact, the language of rights is used widely in contemporary Christian ethical writings, from papal encyclicals (John XXIIVs Pacem in Terris, John Paul Is Laborem Exercens), to Karl Barth’s Against the Stream, to an influential essay by Lisa Sowle Cahill.* It must be noted that a Christian theory of rights requires not a Hobbesian atomism, but a sense of fellowship and community, as treated above. The difficulty of determining a com-

mon good that supercedes the often contradictory “comprehensive” goods of separate religious (or philosophical) traditions does not mean that we should give up on the common good associated with fair procedures and results as they would emanate from the original position to a well-ordered constitutional democracy. The worry that some religious believers have is that the mutuality that characterizes a just society will be disrupted if rights are overemphasized (say by members

104 Theory to Practice of intolerant sects) or if the wrong concept of rights becomes prevalent. If rights are valid claims to a good to which the holder is entitled, we can perhaps anticipate people “standing up for” or even “fighting for” their rights. But these are not unhappy occurences if, in fact, legitimate rights are denied. As before, to offer a strong defense of rights, as any rational participant in the original position would do, is not to simultaneously defend egoism or trash the common good. Werpehowskt is alert to the possibility that in a sinful world recognition of rights may not in itself engender a recognition of the common good, but the theological appropriateness of the language of rights is not threatened by the nonideal case. Claiming and asserting rights are crucial parts of any reasonable pluralistic society: sometimes they are sources of proper restraint or confrontation, and sometimes they present the opportunity for a “genuine recognition of otherness.” Throughout this book, I have tried to offer many examples of how the ¢heory of political liberalism as it relates to religion has been, and would be, implemented in practice, but at this point I would like to concentrate on this theme. The first thing that should be said in this regard is that a precise application of the difference principle requires more information than does an application of the equality principle and such information can never be sufficient to map out in detail beforetime in the original position how the difference principle should be applied. In general Rawls favors a cascading decision-making procedure from most abstract to most concrete: original position, constitutional convention, judges and government administrators, citizens. In this last stage there is only the thinnest veil of ignorance. In the original positon the participants only know the general facts about society (e.g., the first principles of social theory). In successive logical stages more and more knowledge is made available to them, although not the particularities of their own condition, which are not revealed until the last stage." Regarding the distribution of wealth, Rawls stipulates four different branches of government, which presumably are to be mapped on to the existing branches of existing governments (there are three of these in the U.S. government). The first is the allocative branch, whose job is to keep the price system workably competitive by preventing undue market power; the second is the stabilization branch that strives to bring about full employment such that those who want work can find it; the third is the transfer branch, which oversees efforts to ensure a social minimum of goods, a minimum beyond which goods can be settled by a price system as long as unreasonable externalities have been eliminated, and so on; and the fourth is a distributive branch regulating taxation and rights of property, not for the purposes of raising revenues, but for the purposes of ensuring fair value of political liberties and fair equality of opportunity.” Rawls also toys with the idea of a fifth branch, the exchange branch, whose job it is to provide for various government activities that are independent of what justice requires: the other four branches are essentially concerned with justice. In all five branches, and especially in the first four, ideal legislators and administrators

Theory to Practice 105 do not vote in their own interests. Nor do justices vote their own interests or invoke their own or other people’s comprehensive religious (or philosophical) doc-

trines. Rather, they interpret the constitution, not in the sense that the constitution is what justices say it 1s, but in the sense that it is what the people acting constitutionally through the other branches allow justices to say it is. In this

light one wonders whether it could be just to pass an amendment to repeal the First Amendment to the United States Constitution so as to make a particular religion the state religion. It would seem that, given the function of justices mentioned in the previous paragraph, such an amendment would be valid. But Rawls suggests that an amendment to repeal the First Amendment fundamentally contradicts the constitutional tradition itself, and is therefore invalid. ‘That is, the Bill of Rights is “entrenched” in the sense that it can be amended in the sense of its being modified, but it cannot be amended in the sense of being simply repealed or reversed. The latter would seem to indicate not constitutional change but constitutional breakdown or revolution. In any event, the scheme of basic liberties cannot be specified in detail in the original position; here we must be content with the general form of basic liberties being outlined. Specificity is reached at the constitutional, legislative, and judicial stages, respectively.’” The design of a constitution does not rely only on philosophical conceptions, but also on the particular political history of the society in question. This seems to imply that the job of the original position, even in Rawls’s later work, is to largely abstract away from these particularities (including religious ones), even if it is particular, historical beings who enter this position. Once we leave the original position, as all political agents must do, there is no guarantee that just laws will always be enacted, that rights will always be respected, or that courts will always be fair.

There is no easy way—politically, ecclesiastically, or academically—to unite power with law so as to achieve justice. For example, both of the following contrasting views make some sense, hence some sort of rapprochement between them is needed: the majoritarian claim that majority rule is fair and yields just laws and reasonable outcomes as well as the constitutionalist claim that majority rule is problematic and must in some way be restricted.” The effort in political liberalism to deal with practical political issues is facilitated not only by some sort of rapprochement between majoritarianism and constitutionalism, but also between classical republicanism and civic humanism, to the extent that this is possible. Classical republicanism is the view that in order to preserve basic rights and liberties, including the rights connected with private and associational (e.g., church) life, we must foster the political virtues and be willing to take part in public life. That is, widespread participation in democratic politics by a well-informed citizenry is crucial. To retreat from public life will create a political vacuum to be filled by the power-hungry or by those fueled by expansionist religious fervor. As long as this classical republicanism is not formulated in terms of

106 Theory to Practice a comprehensive religious (or philosophical) doctrine, political liberalism is perfectly consistent with this view. Such is not the case regarding civic humanism, where there is the possibility of significant tension with political liberalism. In this quasi-Aristotelian view, human beings are political animals in an essentialist sense wherein without vigorous participation in political life one’s e/os is not achieved, as in Hannah Arendt’s view that the freedom that comes from political life is the only thing that makes life worth living."* Civic humanism exaggerates the liberties of the ancients, but the chief problem with this view is that it is one more comprehensive doctrine. Period. It would be better to leave it up to individuals to decide if they wish to vigorously participate in politics." There are limits to public reason. There is no fixed social order justified by religion or aristocratic values, hence our political philosophy can only outline how we should justly arrange a social world in flux. So public reason is limited both in terms of the difficulties any thoery has in covering the flux of events it is meant to explain

and in terms of the conflicting comprehensive doctrines, religious or otherwise, that citizens carry with them and are at times tempted to ensconce within the political arena. As before, a democratic regime does not require agreement on a religious (or philosophical) comprehensive doctrine, but this does not mean it has abandoned hope for social unity: we should look elsewhere for social unity. The sec-

tarian character of efforts that push too hard in favor of one comprehensive doctrine violates the politically liberal belief that strength or intensity of conviction a person has in favor of a comprehensive religious (or philosophical) doctrine ought not to add to the weight of that person’s influence in the political process."° Critics of political liberalism will perhaps allege that the practical effect of Rawls’s view is that individualism is privileged, even if theoretically Rawls distances himself from any sort of individualistic or egoistic philosophical anthro-

pology. But Rawls’s skepticism regarding the appropriateness of forcing comprehensive doctrines into the political arena is deep, including when it involves comprehensive egoism. And we have seen that various communitari-

anisms and common goodisms can flourish within political liberalism. An analogy from the rules of order at meetings may be helpful. Not everyone can speak at once, but the requisite regulations should not be mistaken for restrictions on the content of speech. But given the fact of reasonable pluralism some sort of self-restraint is called for from citizens regarding even the content of free speech: why alienate others with the content of one’s comprehensive religious (or philosophical) doctrine when one knows that the practical result of such efforts is not at all likely to be conversion. That is, rules of order limit our freedom, but not to the extent that the content of our speech 1s restricted; principles of justice and of mutual respect, however, strongly encourage us to self-regulate even the content of our speech as it emanates from our comprehensive religious (or philosophical) doctrines."”

CHAPTER EIGHT

ParTIALiy INctusivE Pustic Reason

L a politically liberal society the religious or philosophical doctrines of citizens should never be censored as long as they are reasonable; one is even free to de-

fame the government itself in that seditious libel is not a crime. The First Amendment right to have free speech is generally protected even in the case of subversive advocacy, but at some point it becomes unprotected, not so much due to concerns regarding its content as to concerns that it incites imminent violence and is likely to achieve this result. That is, the rights to free speech, to teach, to assembly, and so on, are fundamental rights protected by the First Amendment even if they are not absolute. To say that these rights are, in fact, inalienable—as contained implicitly in the equality principle—is to say that citizens cannot agree to waive them, however voluntary such an agreement is." Several very interesting practical problems, both historical and contemporary, cluster around these fundamental rights. For example, in some deplorable situations it may be the case that lesser basic liberty for some is morally permissible if, after having adopted the lesser party’s point of view, it prevents worse injustices. Suppose that states that previously did not take prisoners of war, but killed those captured, started taking prisoners of war so as to make them slaves. In time justice would require that slavery be abandoned, in that exchange of prisoners of war is a

more just arrangement; but in the short run slavery (if not hereditary or racial) might be an example of moral improvement. Obviously nothing by way of defense of serfdom or slavery is intended here in these fanciful considerations. A related problem concerns paternalism. Those who cannot advance their interests— as in children, the retarded, those who have been mentally impaired as the result of an accident—may require that their wishes be overridden by those who have fiduciary responsibility for them. But such paternalism would be justified only if 1t were agreeable in the original position when the participants imagined themselves mentally impaired. This is quite different from imposing one’s comprehensive religious (or philosophical) doctrine on another sound-minded

107

108 Partially Inclustve Public Reason adult. Paternalistic principles are protections we would agree to in the original position against our own possible irrationality.” Another instance where First Amendment rights might have to be restricted concerns school prayer, but we have seen that the issue is a complicated one in that public reason is not so much a view about specific political institutions or policies as about how they are to be argued for and justified.’ In the debates regarding school prayer or public support for church schools it is perhaps best that all sides introduce their comprehensive doctrines, whether religious or secular, so as to then explain how these doctrines can support basic political values. This is not to say that these comprehensive doctrines are the end of the matter in that in due course proper political (i.e., public) reasons must be presented to support what the comprehensive doctrines introduce. Rawls calls this “the proviso.” ‘That is, comprehensive doctrines can be introduced into the political realm provided that they are eventually supported by proper political reasons. The details regarding when and by whom must be worked out in practice by people of good sense. This introduction of comprehensive religious (or philosophical) doctrines into the political does not, however, alter the nature and content of justification in public reason itself. Whereas there are no restrictions on how comprehensive religious (or philosophical) doctrines are to be expressed among adherents to these respective doctrines themselves, properly political reasons need to be logically correct, open to rational appraisal, and evidentially supportable, as we have seen above concerning

the epistemic requirements of being reasonable. These requirements placed on properly political reasons, which cannot be replaced by the nonpolitical reasons associated with comprehensive religious (or philosophical) doctrines, ensure that there is no conflict in Rawls between his claim that we must in some way show restraint in our use of comprehensive religious (or philosophical) doctrines in politics and his claim that we can, in fact, use them, albeit in an introductory way. The key is that one’s commitment to constitutional democracy be publicly manifest.’ Stephen Macedo isolates the particular problems that can arise in this regard when religious fundamentalism is in conflict with liberal civic education, or, as he says, in “the case of God v. John Rawls.” It is a legitimate object of political liberalism to assimilate the citizens in some way, to bring them together such that they share a common good in the previously mentioned sense of a reasonable means of living together and of settling disputes regarding conflicting comprehensive religious (or philosophical) doctrines. This effort to assimilate offers a deliverance from both politics as holy war, where defenders of some comprehensive religious (or philosophical) doctrine impose their wills on others, and politics as the embrace of a spineless relativism or unqualified pluralism. No version of liberalism, according to Macedo, can make everyone happy.” Consider the case of Mozert v. Hawkins, where in 1983 a group of Christian families in Tennessee sued the local school board because the reading program taught in public schools exposed their children to a variety of religious points of

Partially Inclustve Public Reason 109 view and that this very exposure to diversity got in the way of the free exercise of religion by belittling the truth of their particular comprehensive religious doctrine. In one reading program there were forty-seven stories referring to religions— Buddhism, Islam, nature worship, Native American religion—but only three of these were Christian and none of these three were Protestant. As with many really practical issues, the subject matter is complex and not easily sorted out by our philosophical abstractions: Is the objection to religious diversity as such or to a tendentious version of religious diversity forced on a large fundamentalist population by “enlightened” school board members? What zs clear in this case is that the families in question did not try to impose their ideas on anyone else by means of the public school curriculum.° Or consider the Amish, who also do a good job of not imposing their ideas on anyone. But they are not a “growth industry,” as is fundamentalism. They perhaps have become somewhat used to the idea, less accepted by the fundamentalist families in Mozert, that exposure to something does not constitute endorsement of it, hence exposure to a diversity of comprehensive doctrines does not, in itself, interfere with the free exercise of religion. But forcing fundamentalist children to read the material in the Hawkins County, Tennessee reading program is a bit like forcing Catholic children from traditionalist families to read books on the Index: they are still free to be traditionalist Catholics, but some sort of irritation still remains. [he religiously pluralistic reading program cannot be justified, according to political liberalism, on the basis of a comprehensive liberalism where everyone should be a critical, autonomous thinker in every important area of life. One problem with comprehensive liberalism is that critical, autonomous thinking may not be the best way to reach religious truth, contra Dewey’s comprehensive liberalism in particular. The federal court in Mozert in fact defended something much closer to political, rather than comprehensive, liberalism.’ The special virtue of political liberalism is that it focuses on shared political values. It is more concerned with respecting reasonable people than it is with excluding religious speech. But neither religious fundamentalism nor, say, Dewey’s comprehensive secular humanism are proper grounds for ascertaining basic rights. In the Mozert case, we should permit students who wish to give a fundamentalist interpretation of the stories read to do so, and we should also request a more representative (although still religiously diverse) reader. It is possible for fundamentalists to be reasonable and we should not assume the worst, especially when it 1s realized that religious beliefs very often are the ultimate grounds for political convictions. [hese ultimate grounds are not so much to be bracketed in the sense of being denied, but rather bracketed in the sense of “not being invoked or relied upon as the public ground of decision for matters of basic justice.”® Only those fundamentalists who refuse to bracket in amy sense are being unreasonable, as when some declare the Christian Bible as the who/e truth. Much more likely, however, is a somewhat slack relation between even totalizing versions

110 Partially Inclustve Public Reason of fundamentalism and ordinary confessional practice. This slackness or routine deviation is not to be seen as an effort to take sides in debates within religious thought itself, nor is it to be seen as a denigration of re/igious authority as long as it does not also claim political authority: Political liberalism asks of fundamentalists only what it asks of others, including proponents of secular ideals, such as Dewey’s humanism: to put reasonably contestable comprehensive ideals to one side in the political realm and to focus on values such as peace and freedom that can be shared by reasonable people.’ Contra Nomi Stolzenberg’s view, not only need there be no war between religion and liberalism, there need be no war between fundamentalism and liberalism.*° The great risk, as some like Stephen Carter see things, is that rapprochement between fundamentalism and political liberalism can occur only if religion becomes a mere hobby, something so private that it becomes irrelevant, like building model airplanes. But Carter's worry here is based on his view of liberalism as exhausted by comprehensive, rather than political, liberalism. His antidote to (comprehensive) liberalism is to broaden political justification so as to include a, or better, ¢4e religious voice. But he fails to notice how political liberalism is compatible with at least a partially inclusivist stance with respect to comprehensive religious doctrines. The key 1s to have reasonable political views whether or not one’s comprehensive doctrine is true. And these reasonable political views urge us against the comprehensive liberal “Charge!” (if not holy war) against fundamentalism in order to save science as

well as comprehensive autonomy and individualism. A political liberal can even agree that in religious, rather than political, matters there may be a legitimate role for sacred texts, classics in the history of spirituality, and ecclesiastical authority. In fact, properly restraining Kantian or Millian comprehensive liberalism may be every bit as difficult for some as restraining the fundamentalist’s urge to “settle” political disputes by appeal to the Bible.” Because fundamentalists are outside the intellectual and cultural mainstream (although they are not relatively powerless, like the Amish), for that reason alone they deserve a sensitive hearing. But this does not mean that we should acquiesce

to their requests (or demands) if they are unreasonable. For example, if their request in Mozert was that more of the selections in the reading program should deal with Christianity, and with fundamentalist Christianity in particular, then their view seems quite reasonable given the religious demographics of ‘Tennessee; it would be the educational establishment that would seem to be imposing 2¢s comprehensive doctrine if such a request were refused. But if the request (or demand) of the fundamentalists was that children in public schools be exempt from exposure to diverse comprehensive doctrines, then they were being unreasonable in that, first, it is practically impossible to prevent such exposure, and second, exposure is a far cry from endorsement.

Partially Inclustve Public Reason 111 It is true that reading about a plurality of comprehensive relgious doctrines seems to pose disproportionate burdens on fundamentalists, the cause of which 1s “a reasonable attempt to inculcate core liberal values.”’” Although we can sympathize with the fundamentalist on this point, political liberals cannot give in to their request (or demand) to be exempt from exposure in the educational system to diverse comprehensive doctrines: The basic question of principle is, Do families have a moral right to opt out of reasonable measures designed to educate children toward very basic liberal virtues because those measures make it harder for parents to pass along their particular religious beliefs? Surely not. To acknowl-

edge the legitimacy of the fundamentalist complaint as a matter of basic principle would overthrow reasonable efforts to inculcate core liberal values.”

When marginal political values are at stake, fundamentalist complaints have a stronger case to back them up than when something really basic is at stake, as in the two principles of justice agreed to in the original position. This holds true as well for the complaints of evangelical atheists who defend totalistic or comprehensive, rather than political, versions of liberalism. We should try to accommodate dissenters when doing so helps to draw them into a public moral order that is always in becoming. Our motive should not be accommodation so as to avoid the latent power of the fundamentalists. If we restrict their power, the restriction should always be based on the concept of justice itself rather than on fear. In fact, sometimes even relatively powerless groups should be resisted as a matter of principle. Despite the good press the Amish receive due to their hard work, it should be noted that their society is patriarchal in the extreme such that we have a duty to ensure that Amish children understand what it takes to be critically reflective citizens, as Macedo emphasizes:

Our attitude toward the Amish should be one of “grudging tolerance”; they are not in important respects good liberal citizens, but they do not wholly tyrannize over their children and they keep to themselves. This stance seems far more appropriate than Galston’s puzzling (but not uncommon) romanticization of the Amish (and of diversity in general): perhaps we may tolerate the Amish but we should not (at least in important respects) celebrate them. It is not necessary to completely banish comprehensive religious (or philosophical) doctrines from politics: “We must listen to dissenters, engage them in political conversation, and indeed encourage them to state their objections publicly.”'° We should accommodate religious diversity whenever doing so does not violate justice. No doubt some see things differently: they wish to have people grapple explicitly with conflicting religious (or philosophical) doctrines in public

112 Partially Inclustve Public Reason as part of the political process itself. Rawls’s strategy of avoidance robs political philosophy of its excitement and importance, it will be alleged. But Rawls’s strategy is really one of partial avoidance because citizens are allowed to introduce their comprehensive religious (or philosophical) doctrines so long as they are also articulated in properly political terms. That is, religious speech is not necessarily inappropriate in politics as long as it is tied to reasonable political discourse. As before, the comprehensive doctrines of most people are not fully comprehensive, hence there is a certain latitude available for phrasing one’s political views in reasonable, rather than sectarian, terms. Macedo is correct to remind us that the goal of political liberalism is not to make religion or philosophy take a back seat to politics. Rather the goal 1s to deal fairly with the deep, but reasonable, disagreements about the good life that occur as a consequence of freedom in contemporary society: The critics of political liberalism seem consistently to miss the essential point: when determining the basic shape of the awful coercive powers of the modern state, should we not try [to] offer our fellow citizens reasons that they ought to be able to accept without making the absurdly unreasonable demand that they first accept our convictions about the ultimate ends of human life?”®

A total investment of moral capital into the political realm is not a good thing in a condition of reasonable pluralism, hence dogmatic defenders of any comprehensive doctrine ought to be reminded of this fact. A somewhat different liberal view of the relationship between politics and religion, in general, and between politics and fundamentalism, in particular, is offered by William Galston. At one point Galston misleadingly claims that Rawls dismisses religion altogether because Rawls sees it as “hostile to the conduct of our public life.” Hence Galston thinks it makes sense for such “victims of liberal bias” to “retreat or exit” from pluralistic societies altogether into communities marked by religious or cultural homogeneity; for example, into a community where one could more easily submit to an external good (God’s truth), rather than actively form a conception of the good for oneself.” Despite these excesses, however, there is also a significant degree of rapprochement between Galston and Rawls. Both agree that the toleration fostered by political liberalism does not have to be exhibited inside religious congregations themselves. But Galston (with Macedo at his side) nonetheless notices the tendency of liberal toleration to filter all the way down to religious associations, indeed to individuals. Just as racial discrimination is banned not only at the political level, but also in housing and even in some “private” clubs, so also the internal affairs of the U.S. Catholic bishops tend to be more democratically organized than the affairs of the Vatican. Galston’s helpful metaphor goes as follows: there are powerful, if informal, liberal currents against which resistance is difficult and can

Partially Inclustve Public Reason 113 be managed only by skilled swimmers. Or again, a liberal state is not really a completely neutral, placid lake on which all comprehensive religious (or philosophical) doctrines can swim easily; but neither is it an irresistable undertow.’ Some traditionalist religious groups manage the swim quite well, including Orthodox and Hasidic Jews in Brooklyn, as well as many other religious groups whose membership is actually enhanced because of the sense of confusion some people experience in the face of the open nature of liberal society. What fills some with exhiliration leads others to flee from the burdens of self-determination. From a Rawlsian, rather than a Galstonian, point of view, however, fleeing from comprehensive autonomy or comprehensive self-determination 1s perfectly legitimate as long as political self-determination remains intact. To take liberalism as a core political commitment does not, as Galston thinks, necessarily lead to an attenuation of our personal beliefs as enshrined in our comprehensive religious (or philo-

sophical) doctrines, as is evidenced in the healthiness of religion, including fundamentalist or traditionalist religion, in the United States. Galston is correct, however, in noting that the issue is largely an empirical one.”” Despite Galston’s pessimism regarding the likelihood that many fundamentalist or traditionalist associations and individuals will in the long run be good swimmers against the liberal current, much can be learned from his overall confidence in a version of liberalism not as different from Rawls’s version as Galston at times thinks. Consider Galston’s remark from his Liberal Purposes: In the past generation, thinkers along the political spectrum from Irving Kristol to Jurgen Habermas have contended that liberalism is dependent on—and has depleted—the accumulated moral capital of revealed religion and premodern moral philosophy. If the argument of this book is correct, they are mistaken. Liberalism contains within itse/f the resources it needs.” From a Rawlsian perspective, however, we should add that the freestanding nature of political liberalism can be, and usually is, also supported (overdetermined) by an overlapping consensus constructed out of the comprehensive religious (or philosophical) doctrines of citizens. Even closer to Rawls’s stance is that of Charles Larmore, who rightly warns against what he calls a “neoromantic” or “counterenlightenment” tendency on the part of some on the political right as well as on the political left to plead for political communities where people can “belong” in the sense of fitting in with respect to some homogeneous group, religious or otherwise. In political liberalism such a “fit” is always possible (indeed it is encouraged) at the associational level. To try to force one religion or one club of friends at a political level, however, is

to engage in “fantasy” regarding an imagined agreement among free and equal citizens regarding one comprehensive religious (or philosophical) doctrine. Further, to think that we receive our duties principally, or exclusively, due to our

114 Partially Inclustve Public Reason constituitive attachments to members of our own religion or race logically leads, as Larmore rightly argues, to the idea that Catholics or fundamentalists may be taxed only for the benefit of other Catholics or fundamentalists, respectively. Or again, it leads to the idea that blacks may be taxed only for the benefit of other blacks. This gets us nowhere if in contemporary society justice requires that we tax those in Scarsdale at least in part for the benefit of those in Harlem.” Two extreme positions can be imagined at either end of a continuum, with many slightly different positions between these extremes. At one extreme is a pure exclusivism, wherein a// religious discourse would be excluded from the political. At the other extreme is pure inclusivism, wherein zo religious discourse would be excluded from the political. It appears that all of the recent philosophical commentators on this issue have been wise enough to avoid these two extremes, although those in between these two extremes very often lean noticeably in one direction or the other. Rawls’s strategy is, as Philip Quinn notices, one of general exclusion tempered by exceptions; Quinn’s strategy, by way of contrast, is one of general inclusion tempered by exceptions. It will be the purpose of this chapter to detail the ramifications of Rawls’s (and others’) partial inclusivism as well as Quinn’s (and others’) partial exclusivism.” It is by no means clear that Richard Rorty speaks exactly for Rawls when he says that for contemporary liberal philosophers there is agreement on the view that “we shall not be able to keep a democratic political community going unless the religious believers remain willing to trade privatization for a guarantee of religious liberty.” Although, it must be admitted, Rorty has come close to summarizing Rawls’s view. But the small differences between Rorty’s summary and Rawls’s actual view really make a difference in certain key cases, as in the efforts of the abolitionists or Martin Luther King’s efforts in favor of civil rights, as we will see in the next chapter. (Rorty also errs in seeing religious belief as “private.” Religious believers tend to gather together in community.) Rawls tells us explicitly that he initially inclined to the pure exclusivist view (where comprehensive religious or philosophical doctrines are excluded from public reason), but that he eventually found this view too restrictive. In Quinn’s Presidential Address to the American Philosophical Association

the intricacies of the partial inclusivist-partial exclusivist debate are laid out clearly, although Quinn himself is much more of an inclusivist than Rawls. As before, Rawls can be called a partial inclusivist and Quinn a partial exclusivist. I will

describe the partial inclusivist view first, specifically the version defended by Robert Audi, a version that is laid out in much more detail than is Rorty’s view, which tends to an even greater degree to pure exclusivism. Audi first distinguishes between religious reasons and secular ones. The latter, in contrast to the former, do

not depend for their evidential force on the existence of God (e.g., through appeals to divine command) or on theological considerations (as in interpretations of sacred texts). Audi’s view is not only that “one should not advocate or support any

Partially Inclustve Public Reason 115 law or public policy that restricts human conduct unless one has, and is willing to offer, adequate secular reason for this advocacy or support,” a view with which Rawls would agree. We have seen that Audi also holds the much stronger thesis that one’s stance must be motivated by secular reasons if one wants to advocate a

legal or public policy restriction on human conduct. It should be emphasized, however, that Audi thinks (correctly, as I see things) that motivation for a given policy can be overdetermined: citizens can have both religious and secular motivations for their favored policies.” Quinn rejects Audi’s requirement that we always be motivated in politics by secular reasons. Imagine a traditionalist Catholic who is opposed to abortion due

to her religious traditionalism and who peacefully advocates more restrictive abortion laws, indeed who strongly opposes the bombing of abortion clinics. Quinn correctly notes that on Audi’s view she would either have to cease her advocacy or find a sufficient secular motive for her view. That is, on Audi’s partial inclusivist view it is not enough that she cites public reasons for her stance; she must also supplement religiously motivating forces behind her public reasons or drop her advocacy. In fairness to Audi it should be emphasized that his stance arises out of a concern shared by all liberals, including Rawls: religious argument is apt to be dangerously divisive. As Audi puts the issue, “conflicting secular ideas, even when firmly held, can often be blended and harmonized in the crucible of free discussion: but a clash of gods is like a meeting of an irresistible force with an immovable object.”” (Rawls agrees here, although he would also include the

“sods” found in nonreligious comprehensive doctrines.) Common ground between Audi and Quinn can be found if Audi is claiming only a prima facie, rather than an actual, duty to be motivated by secular reasons in the political sphere. But even on this generous construal there are significant differences between Audi and those who, like Quinn, defend a partial exclusivist view that is much closer to pure inclusivism. We have seen above that in Re/igion in the Public Square Audi indicates, along with Rawls, that comprehensive doctrines may figure crucially, both evidentially and motivationally, in support of public policies provided adequate secular reasons play a sufficiently important role. (Rawls would not say “secular” reasons, however, but “public” in contrast to nonpublic ones.) That is, people may well have the right to advocate political views and vote strictly on a religious basis, but these efforts are nonetheless criticizable from the perspective of political morality. This is because the person who advocates or votes on a religious basis alone runs the risk of violating a liberalism of reasoned respect.” Quinn is convincing when he encourages constrained verbal conflict in a democracy, but rather than claiming that such conflict should never spill over into violence, he is content to say that it should “rarely” do so. He is apparently not as bothered by, or as frightened by, the possibility of sectarian violence as are Rawls and Audi. ‘There is common ground between Quinn and Rawls, however, regarding the

116 Partially Inclustve Public Reason inconsistency of the pure exclusivist position: Why only restrict comprehensive religious doctrines and not comprehensive nonreligious ones as well? Rawls, it should

be emphasized, avoids the religious-secular distinction for this very reason. He prefers to speak, and usually does so, in terms of the distinction between public and nonpublic (not exactly private) reasons. The former consists of terms that each citi-

zen might reasonably endorse as consistent with their freedom and equality. It should be reiterated that Rawls does of relegate religion to a strictly private sphere, as Rorty, John Gray, and others continue to allege.” Because Rawls’s view is a moderate one between the pure exclusivist stance and the pure inclusivist one, there are parts of his partial inclusivist view that over-

lap with those of the partial exclusivists (Quinn, David Smolin, Robert M. Adams, Sanford Levinson, and others) and parts that are at odds with them. Consider Smolin’s view that Rawls’s partial inclusivism will allow many religious believers to introduce their ultimate beliefs into the political, but not those of various Christian groups (evangelicals, fundamentalists, pentacostals, traditionalist Catholics, etc.) or theologically conservative believers in other monotheistic religions (fundamentalist Muslims, Orthodox Jews, etc.). Smolin and other partial ex-

clusivists seem to argue for the right of citizens to express their deepest values explicitly in politics without having to engage in translation efforts that present their views in terms that other citizens might reasonably endorse.” The Rawlsian response here should be, first, to point out the disrespect involved in politics if one speaks to others strictly in the terms idiosyncratic to one’s own comprehensive doctrine without taking into consideration either the inability of some reasonable people to understand these terms, or to be swayed by them if they are understood. For example, to support capital punishment solely or primarily on the basis of biblical citations, without making suitable translation efforts for the benefit of those who are not biblical fundamentalists, is, in effect, to abandon public reason and the political respect for fellow citizens that is integral to a

just political order. Second, Quinn and other partial exclusivists are either extremely optimistic in their partial abandonment of the /ingua franca provided by public reason or they are less bothered than Rawls and Audi are by the possible friction that would result from the partial abandonment of public reason. We have seen that Quinn even seems to anticipate, and can live with, the combativeness and even violence that may result from a near carte blanche that is given to diverse defenders of comprehensive religious doctrines. And third, we have seen in the previous chapter, however, that Rawls by no means closes the door on bringing fundamentalists, pentacostals, and so forth, within the liberal fold.” As long as hate or racist or antisemitic speech is avoided, include it, according to Quinn’s partial exclusivist version of liberalism. (The fact that he does exclude some religious speech indicates that even Quinn is really a partial exclusivist rather than a pure inclusivist.) One’s own view, he thinks, may be improved as a re-

Partially Inclustve Public Reason 117 sult of contact with an alien religion that one is initially inclined to reject. He realizes that Rawls’s restriction on comprehensive religious (or philosophical) doctrines in the political realm is often moral rather than legal. That is, even Rawls would legally permit fundamentalists to run for office, say, on a platform of biblical citations. But he would not think that such an action would be just in that such a platform in a pluralist society is disrespectful of those the candidate knows do not, and perhaps cannot, accept Christian fundamentalism. Not all religious people are illiberal; not all liberals are irreligious. Far from it. In fact, religious people should be encouraged to be politically liberal, just as comprehensive liberals should be encouraged to tolerate reasonable religious views. On basic political matters the reasons cited in favor of a point of view ought not to be given explicitly and exclusively in terms of a comprehensive religious (or philosophical) doctrine. The public reasons such a doctrine supports are to be strongly encouraged (for this is the root of overlapping consensus), but not the supporting doctrine itself. Or again, in certain situations citizens may introduce their comprehensive religious (or philosophical) doctrines into the political, but this is permissible on/y 1f such an introduction strengthens the ideal of public reason itself. So although Rawls was initially inclined to defend the pure exclusivist view, he really is a partial inclusivist.

In any event, when disputes arise regarding the relationship between politics and religion, it 1s crucial to insist that public reason be used to respond to them. For example, when there is a serious dispute between one group favoring government support for public education alone, and the other supporting government support for church schools as well, it is only fair that members of both groups restrict appeal to their own comprehensive doctrines, whatever they might be, or at least that they indicate exactly how appeal to their comprehensive doctrines in a public forum does indeed affirm public political values.*’ For example, it is at least plausible to argue for government support for parochial schools in big American cities where the public schools are already overcrowded, violent, and underfunded; the parochial schools, it could be argued, provide a public good. Hence, the establishment clause of the First Amendment to the United States Constitution is, in certain contexts, perhaps better understood in terms of an impartiality interpretation (where each comprehensive doctrine is treated impartially), rather than in terms of an absolute separation of church and state, as Wolterstorff rightly urges. Two additional partial exclusivists should be considered so as to enable us to better understand the strength of Rawls’s view, by way of contrast. Nicholas Wolterstorff, as we have seen earlier, is a partial exclusivist who is even closer to the pure inclusivist position than Quinn. Wolterstorff, unlike Quinn, thinks that liberal public reason even as an ideal is “hopeless” because of at least three reasons.

First, a great deal of exegetic industry is required, he thinks, to figure out what

118 Partially Inclustve Public Reason Rawls means by “reasonable” and “rational.” According to Wolterstorff, Rawls is inarticulate in political epistemology. Second, public reason involves an overly aggressive view of rhetoric, as the following quotation from Wolterstorff indicates: So suppose it is true that, when conversing with Ryan, I must, to honor his freedom and equality, offer reasons for the policy I accept which I can reasonably expect him to endorse; and suppose it 1s true, likewise, that, when conversing with Wendy, I must, to honor her freedom and equality, offer reasons for the policy I accept which I can reasonably expect Aer to endorse. It does not follow that the reasons I offer to Ryan must be the same as those I offer to Wendy. To Ryan, I offer reasons that I hope he will find persuasive; to Wendy, I offer reasons that I hope she will find persuasive. Why must they be the same reasons? [hey need not even be reasons that I accept—let alone reasons that for me personally were determinative. Ad hoc reasons, tailor-made for one’s addressee, seem entirely adequate. And if Wendy listens in on my reasoning with Ryan, and Ryan, on my reasoning with Wendy, what difference does that make? In short, one’s reasons do not have to be reasons for all comers.*"

And third, Rawlsian public reason does not pay sufficient attention to particularity. If one is at base a fundamentalist, it seems, one should be able to bring fundamentalist beliefs to bear on political matters. That is, the consensus populi or shared political culture of liberal democracy does not exhibit a willingness to live with multiple communities. Several Rawlsian responses to Wolterstorff are in order. Regarding the first criticism, it is by no means clear why it is difficult to understand Rawls’s distinction between the reasonable and the rational, as the above chapter that deals with these concepts indicates. In brief, “reasonableness” refers both to the reciprocity involved in a willingness to reach some sort of fair political agreement with those who have a different comprehensive religious (or philosophical) doctrine from one’s own as well as to epistemic competence in the display of such reciprocity. This willingness induces one to enter the original position and to abide by the decisions made there; here the inhabitants, by stipulation, as agents of construction, are “rational” in the sense that they advance their own interests as well as those of the persons they represent. When incarnated, however, there is no reason why those who were rational agents in the original position have to be egoistic, as we have seen.

Regarding the third criticism, the response should be to urge the exact opposite of Wolterstorff’s view. The community life of churches (including fundamentalist ones), universities, clubs, and associations of all kinds are encouraged in a liberal, democratic society (contra Wolterstorff’s charge), and in fact the protection of such communities’ right to exist is one of the most important functions of political liberalism. However, as I have emphasized throughout this book, these

Partially Inclustve Public Reason 119 multiple communities are often at odds with each other. Wolterstorff makes for an odd multiculturalist. He wants to bring his own comprehensive religious (specifically, Calvinist) doctrine to bear explicitly in politics, but he gives no indication that the price to pay is that defenders of other comprehensive doctrines (doctrines that Wolterstorff would presumably detest) should be given the same blank check underwritten by his only partially exclusivist, nearly pure inclusivist, position. For example, there is a gay neighborhood near my university where one segment of the population openly defends sadomasochism, and does so at times in re-

ligious language. Indeed it is common in this neighborhood to see one man leading another down the street by a leash, the latter apparently enjoying the experience! It is by no means clear that Wolterstorff would encourage these individuals to bring their comprehensive doctrine to bear on political issues, but for the sake of consistency it seems he should so encourage them. Once again, pluralism seems to be here to stay and it is highly unlikely that we can fairly resolve our disputes through a clash of widely divergent comprehensive doctrines. Nonetheless, the controversial issue of voluntary slavery is one that perhaps ought to be discussed in the original position. Regarding the second criticism, articulated in the above quotation from Wolterstorff, two comments are in order. First, as far as I can tell, there is no textual evidence whatsoever in Rawls that citizens should be encouraged to be duplicitous such that they could offer reasons for their political views that they do not themselves accept, as Wolterstorff misleadingly alleges of Rawls. In fact, it is a commonplace in Rawls that the chief virtues of citizens when they engage in public reason are honesty and integrity. And second, as far as I can tell, there is no textual evidence whatsoever in Rawls for the claim that we should cleverly calculate which reasons to give fellow citizens on a strictly rhetorical basis so as to tell different people what they separately want to hear, as Wolterstorff again misleadingly alleges of Rawls. The Rawlsian point, as I understand it, is the opposite one. He holds a be-

lief in the univocity of political reason (hardly an inarticulate epistemological stance): our comprehensive religious (or philosophical) doctrines may divide us, but when we speak in public on political matters we have a moral duty to address ourselves to fellow citizens in terms that any reasonable person could understand.

In short, those who want to lead “religiously integrated lives,” to use Wolterstorff’s helpful phrase, can legitimately claim that religious believers have a right to be heard in politics, but it does not seem too much to ask them to adhere to liberal principles of reasoned respect in the process. At the very least, this means that they should be willing to give public reasons for their political views, if requested to do so by those who either do not understand or who do not agree with the terms of their comprehensive religious doctrines. Equally problematic is the view of Michael Perry, who wonders why public reason should trump “the right political choice,” with this phrase referring, not surprisingly, to Perry’s own comprehensive religious doctrine. In fairness to Perry,

120 Partially Inclustve Public Reason however, I should emphasize a legitimate (Quinn-like) question that he asks: Why do we not show others respect when we offer them our true reasons for our political beliefs? That is, Perry’s view seems to be both that we do show respect to others when we give our true reasons for our political beliefs (even if these reasons are based on what Rawls calls a comprehensive religious doctrine) and that we need not allow public reason to get in the way of “the right political choice.” The Rawlsian response to Perry should go something like this: on matters of

dispute among reasonable people there is no such thing as “the right political choice” before the necessary steps in a fair decision-making procedure have been taken. The liberal principle of legitimacy when dealing with constitutional and political essentials, and especially when coercive power is in the background, suggests that public reasons and procedures are crucial if we are to convince reasonable adherents to diverse comprehensive religious (or philosophical) doctrines that

they have been treated fairly. No doubt Perry is correct in claiming that he is showing us respect when he tells us that the basis for his political views lies in his (to use Rawls’s term) comprehensive religious doctrine. But it is by no means clear, as Perry seems to think, that we are being treated with respect by him if he thinks that Ais version of “the right political choice” can circumvent public reason and fair decision-making procedures altogether. It is precisely this attitude that liberalism historically and political liberalism at present is meant to counteract.

CHAPTER NINE

Race, SEX, AND ABORTION

Te are three sorts of conflict with which we should be concerned in a po-

litically liberal society. The first is the sort with which I have been primarily concerned throughout: conflicts deriving from different comprehensive doctrines. Political liberalism mitigates, but it cannot eliminate, this sort of conflict, nor can any political scheme do this in a just way in a pluralistic society. The second sort consists of conflicts arising because of the fact that various citizens are of a different race, ethnic origin, class, occupation, gender, sexual orientation, and so on, from each other. In theory, at least, this second sort of conflict need not so much as arise any longer, or at least it need not arise so forcefully as before. That is, these conflicts “can be largely removed by a reasonably just constitutional regime” where

the two principles of justice obtain.’ If it is assumed that a just constitutional regime is impossible—as it was in the Weimar period, when none of the traditional German elites were willing to cooperate to make a constitutional regime work— then a self-fulfilling prophecy occurs such that racial and other conflicts are likely to continue. And third, there are conflicts arising due to the burdens of judgment that occur when individuals weigh complex information in different ways; these conflicts will always remain in any just society.

Let us concentrate on the first sort of conflict. Here it should be highlighted that the abolitionists’ efforts to get rid of slavery and Martin Luther King’s efforts to end institutional (as well as individual) racism were undertaken in light of comprehensive religious doctrines that were held with an intensity that would perhaps initially lead one to think would cause social divisiveness. Counterintuitively the reverse held true. Both the abolitionists’ and King’s doctrines belonged to public reason because they were invoked in an unjust society in such a way as to strengthen public moral discourse and justice. For example, when King said that he dreamed of a day when all of God’s children, black and white, would walk hand in hand together, reasonable citizens agreed with him and were moved to try to bring about the requisite social change. Reasonable

121

122 Race, Sex, and Abortion atheists or agnostics may have zronically agreed with him, but they did agree with him. The abolitionists probably seldom fulfilled the proviso (that they translate their appeal to their comprehensive doctrine into the terms of public reason), but they certainly could have done so at any point. King often did so, as when he appealed to Socrates or Augustine or Kant or the Bill of Rights in his speeches and writings, and even when he did not fulfill the proviso his listeners could easily have made explicit for him the implications of his comphrehensive religious doctrine for public reason.” When the abolitionists agitated for the immediate, uncompensated, and universal emancipation of slaves in the 1830s, they did so because they thought that slavery was contrary to God’s law. But while the religious basis of their views was always clear, so were the political values that were always near the surface of their writings, speeches, or sermons.” Clearly nonpublic reason can support public reason. King was more explicit in this regard than the abolitionists because, in addition to appeals to his comprehensive religious doctrine, he appealed, for example, to the Supreme Court’s 1954 decision in Brown v. Board of Education, where seg-

regation was held to be unconstitutional. Comparing his view to Thomas Aquinas’s, he would flip back and forth between civil law and the true moral law (or God’s law). The former he thought to be just if it squared with the latter. An unjust civil law is one that is out of harmony with divine law. In more public terms, once again used by King himself, just laws elevate human persons and unjust ones degrade them. And segregation, he thought, was degrading. Here public reason was in full force, as it was when he argued that an unjust law is one where a majority inflicts a code on a minority that is not binding on the majority itself. A just law has the characteristic of applying to majority and minority alike in a fair way. Or again, if the minority does not have the right to vote, it is not just to inflict statutes on them that they might reject.’ No doubt the abolitionists and King thought that the comprehensive reli-

gious doctrines they appealed to were needed in order to give the required strength to the political conception to be subsequently realized. Actually many people do not normally distinguish between comprehensive and public reasons, but people can be brought to understand this distinction in particular cases. The abolitionists probably felt little need to restrict their appeal to their comprehensive religious doctrines because the vast majority of people in their culture would have held similar comprehensive doctrines. Given the historical conditions in which they found themselves, it was not unreasonable for them to use their comprehensive religious doctrines for the sake of public reason. And as “Letter from Birmingham City Jail” shows, among other things King wanted to win over Christians themselves (including the clergy) to his cause, hence his appeal to his comprehensive religious doctrine made perfect sense.” From the above it should be clear that the appropriate limits to public reason vary according to historical and cultural conditions. When public reason is espe-

Race, Sex, and Abortion 123 cially weak, comprehensive religious (or philosophical) doctrines may be needed to help it along:

The ideal may be best achieved in different ways, in good times by following what at first sight may appear to be the exclusive view, in less good by what may appear to be the inclusive view.°

Yet another example of “less good times” where it was just to include appeal to comprehensive doctrine so as to ultimately support public reason was during the Civil War itself, especially Lincoln’s Proclamation of a National Fast Day (1861), his two Proclamations of Thanksgiving (1863-1864), and his Second Inaugural Address. He liked to interpret the war in prophetic, Old Testament terms wherein the suffering was seen as God’s punishment on North and South alike for the sin of slavery. In his day this was not a violation of public reason. Whether it would be in ours is a difficult question, although I assume that reasonable agnostics and atheists could easily understand and agree with Lincoln, at least if his remarks are not taken literally. Rawls gives the following forceful definition of “the proviso”: This requirement still allows us to introduce into political discussion at any time our comprehensive doctrine, religious or nonreligious, provided that, in due course, we give properly public reasons to support the principles and policies our comprehensive doctrine is said to support.’ A misunderstanding of “the proviso” would occur if it were alleged that a defender of public reason could not side with Lincoln in his debates with Douglas in 1858. They were debating fundamental political principles related to the (im)morality of slavery. Lincoln’s view, like the abolitionists’ and King’s, appealed to a comprehensive religious doctrine, but the appeal was precisely to a part of that doctrine that would be compatible with any reasonable comprehensive doctrine, religious or not. The rejection of slavery was an attempt to secure equal basic liberties for blacks. Even if Lincoln’s view was not the most reasonable one, it was reasonable whereas Douglas's view was not. It should now be clear how I would counsel a civil rights activist who believes that racial discrimination 1s wrong, but who does not believe that there is adequate public justification for this claim. My response: there zs (more than) adequate public justification for this claim, just as there was (more than) adequate public justi-

fication for the abolitionists’ case even if the abolitionists themselves were not aware of this fact. Religious believers sometimes suffer from a lack of imagination regarding public reason. Rawls’s defense of the abolitionists, Lincoln, and King gives us some idea, perhaps, as to how we should deal with conflicts of the second sort (as stated at the beginning of the present chapter) and with heated contemporary debates over affirmative action. Justice as fairness would have as one of its most profound effects

124 Race, Sex, and Abortion the virtual elimination of institutional (as well as a good deal of individual) racism. Strict adherence to the equality principle concerning race, strict adherence to the first part of the difference principle regarding equality of opportunity, and strict

adherence to the difference principle itself would lead to, and to some limited exent has led to, enormous progress for blacks even in a white dominated society. Affirmative action programs to enhance these measures would be just only if they did not have the unfortunate utilitarian feature whereby certain individuals are sacrificed for the sake of the greater good. Perhaps such just, practical, affirmative action programs could be developed in the near future without this utilitarian feature. [he issue is partly philosophical and partly connected to the talents of polit-

ical leaders to deal effectively with practical problems once the theoretical justifications for justice as fairness and political liberalism are clearly laid out. Given the tense debates in contemporary culture regarding race and gender issues, it may seem flippant to some to claim, as we have seen Rawls do, that 77 theory conflicts regarding race or gender need not arise any more. [hat is, the equality principle and both parts of the difference principle apply to persons of all races and ethnic backgrounds and to women as well as to men. Rawls has apologized for not

being more emphatic about this in TJ, but even in TJ Rawls states that women should have equal political and economic liberties as men and there is nothing whatsoever to indicate that women should receive lesser political and economic liberties than men. In a way, Rawls seems to have thought that the /dera/ issue or the polit1cal issue of women’s equality was largely settled theoretically as long ago as Mill’s The Subjection of Women (1869). But Rawls has also claimed to have profitted from several recent feminist critics, including their concerns about liberalism’s “atomistic man.” We have seen, however, that Rawls does not buy into comprehensive liberalism’s individualism, as some of these feminist critics themselves have acknowledged.° Obviously many complex issues remain. For example, if the family is part of

the background culture against which political debates occur, the fact that reproductive labor is socially necessary labor is a major point to consider in order to maintain fair opportunities for women who have children. So also there is a central role for the family (of some sort or other) in the raising of, and caring for, children, who are valuable in themselves as well as in their status as future political agents. Further, we saw earlier that the morality of principle on which justice as fairness is based is built on the morality of association, which, in turn, is built on the morality of authority that starts with young children in families respecting (and being respected by) their elders. Rawls does not stipulate, however, that the family has to be monogamous (although allowing many wives but not many husbands is on its face unjust) or heterosexual. The key from the perspective of justice is that the family encourages children to eventually be capable of morality of principle and to be good citizens. This is an area where sectarian, comprehensive religious doctrine can be dangerous, say by getting in the way of the rights of gays and lesbians, rights that Rawls

Race, Sex, and Abortion 125 has explicitly defended in his later writings, but that, once again, were there at least implicitly in ‘TJ as well. The point is a subtle one: we should not let comprehensive religious doctrine dictate how we should treat gays and lesbians, nor should we defend their rights by appeal to nonreligious comprehensive doctrines:

In considering whether to make homosexual relations between citizens criminal offenses, the question 1s not whether those relations are precluded by a worthy idea of full human good as characterized by a sound philosophical and nonreligious view, nor whether those of religious faith regard it as sin, but primarily whether legislative statutes forbidding those relations infringe the civil rights of free and equal democratic citizens.’

To return to the family, however, is to consider an association that need not itself proceed democratically. This is true of associations in general: churches, universities, professional organizations, scientific societies, businesses, unions, and so forth. The principles of political justice do not necessarily apply to the internal life of a church or a family. Nonetheless the principles of political justice do impose certain constraints on what can go on in the internal life of a church or a family. For example, as we have seen, people are politically free to leave churches, parents are not politically free to abuse or neglect their children, and husbands are not politically free to beat their wives. That is, the rights and liberties of people are protected by the political constraints that apply to all churches, families, and other associations. And there may very well be other appropriate conceptions of justice that apply directly to most, if not all, associations that are not political in nature. For example, presumably lying is unjust even in nonpolitical associations like churches and families.” Because women are equal citizens with men, it follows that wives are equal citizens with husbands. There is a needed distinction between people as citizens and their point of view as members of families and other associations. The distinction is needed in order to leave room for the free life of the association itself. The key point here is to acknowledge a division of labor among different kinds of principles, and political principles, for the most part, do not govern sexual relations or the parenting of children, contra Sandel. Adult members of families, whether male or female, are equal citizens first, and no association can violate their rights as citizens, otherwise they are free within associational life to do as they please. What this means is that

a liberal conception of justice may have to allow for some traditional gendered division of labor within families—assume, say, that this division is based on religion— provided it is fully voluntary and does not result from or lead to injustice. To say that this division of labor is in this case fully voluntary means that it is adopted by people on the basis of their religion, which from a political point of view is voluntary."

126 Race, Sex, and Abortion Of course some people may wonder about the term voluntary in this quotation, even if the term is modified by the phrase “from a political point of view.” Rawls is explicit regarding what he means:

Whether it is properly voluntary, and if so, under what conditions, 1s a disputed question. Briefly, the question involves the distinction between the reasonable and the rational explained thus: an action is voluntary in one sense, but it may not be voluntary in another. It may be voluntary in the sense of rational: doing the rational thing in the circumstances even when these involve unfair conditions; or an action may be voluntary in the sense of reasonable: doing the rational thing when all the surrounding conditions are also fair. Clearly the text interprets “voluntary” in the second sense: affirming one’s religion is voluntary when all of the surrounding conditions are reasonable.”

In short, certain (but not all) versions of traditional religious views of women should be allowed to continue as /ong as the practice of these views does not violate the principles of justice that would be agreed to by reasonable people in a fair decision-making procedure such as the original position. One further issue connected with sex, gender, and religion should be considered: the contentious topic of abortion. My own view, based surprisingly enough on certain claims made by Saints Augustine and Thomas Aquinas and by Charles Hartshorne, is that because the fetus in the early stages of pregnancy is not yet sentient, and hence not yet ready to be declared a human being in the morally relevant sense, abortion in the early stages of pregnancy should be seen as morally permissible, hence there is a certain degree of wisdom in the Roe v. Wade decision.

That is, there is an internecine debate within Christianity itself regarding the moral status of the fetus in the early stages of pregnancy, such that it is not as easy as some suppose to cite one’s comprehensive religious doctrine as a Christian so as to “settle” the abortion debate.” To say the least, not everyone sees things the way I do on this matter. Rawls emphasizes at the very least that when there seems to be a standoff, as there is regarding abortion, when legal arguments seem balanced on both sides, judges, and

to a lesser extent citizens, ought not to resolve the case merely by appealing to their own comprehensive doctrines. Rather, they should speak in the terms of public reason that all citizens might reasonably endorse, particularly those whose rights might be violated. That is, we should be especially mindful when standoffs occur to adhere to the reciprocity principle. Let us consider a hypothetical case. Suppose that we are dealing with an adult woman who wants an abortion early in pregnancy in a well-ordered society. There are at least three important political values involved: respect due to human persons, the ordered reproduction of society (including the family) over time, and the equality of women. In PL it seems that Rawls’s position is that the political

Race, Sex, and Abortion 127 value of the equality of women overrides whatever value the fetus may have relatively early in pregnancy and that it would be unreasonable to deny the pregnant woman a right to an early abortion. In fact, in some cases it would be “cruel and oppressive” to deny the woman a right to an early abortion, say in the case of rape

or incest. In an article published after PL, however, Rawls makes it clear that although

it is his personal opinion that a woman has a right to an abortion in the first trimester, he did not intend his comments in PL to constitute an argument to that effect. His goal, he says, was a more modest one: to show that the only comprehensive doctrines that run afoul of public reason are those that cannot strike a reasonable balance of political values. It would not be reasonable to deny women a right to an early abortion because such a denial would not show a commitment to the rights of women. And it is reasonable to grant women a right to an early abortion, presumably because (although Rawls himself does not explicitly state why) it is not obvious or even clear that an early fetus has a necessary condition of humanity in the morally relevant sense, that is, sentiency. (Obviously the fetus is human in a different sense of the term: it has human parents.) There may be other reasonable positions regarding the political morality of abortion, according to Rawls, but he does not state what they might be. He cites Judith Jarvis Thomson in this regard, a citation that is not terribly useful in helping us to understand Rawls’s view in that Thomson seems to permit abortion long after the first trimester.” It is clear that Rawls does not want to settle the matter on the basis of metaphysical claims concerning the status of the early fetus, but rather in political terms. Jfone could prohibit abortion without violating the rights of the pregnant woman who wants an abortion, then Rawls would see the “pro-life” position as politically reasonable. But this seems impossible. By way of contrast, it is at least possible, and it is perhaps likely, that permitting first trimester abortions does not violate the rights of any person. As was implied earlier, even Saints Augustine and Thomas Aquinas opted for delayed, rather than immediate, hominization, making appeal to a Christian comprehensive doctrine to “solve” the problem of abortion quite problematic on religious grounds, quite apart from the political ones. Notice the disanalogy between Martin Luther King’s successful appeal to a comprehensive religious doctrine and the unsuccessful efforts of opponents to

abortion in this regard. When King talked of his dream of a time when all of God’s children, black and white, would walk together hand in hand, reasonable people could easz/y translate his religious language (as he himself did at times) into the terms appropriate to public reason. Indeed, his religious language actually enhanced public reason by strengthening the rights of many without damaging the basic rights of any. When opponents to abortion, however, try to secure their position by appeal to God’s breathing a soul into a fertilized egg, such translation efforts prove to be exceedingly difficult, especially because the rights of some—the

128 Race, Sex, and Abortion pregnant women who want to have abortions—would in fact be taken away if we adopted their proposals. Opponents to abortion are free to present their views in public (despite what some of Rawls’s critics say about political liberalism), but they should be encouraged to do so explicitly in terms of public reason or in religious terms that can be easily translated into the terms appropriate to public reason. However, all efforts to do so thus far (as in appleals to evidence from genetics so as to support immediate hominization) have failed to win over a majority:

But they opponents to abortion] need not themselves exercise the right to abortion. They can recognize the right as belonging to legitimate law enacted in accordance with legitimate political institutions and public reason, and therefore not resist it with force. Forceful resistance is unreasonable: it would mean attempting to impose by force their own comprehensive doctrine that a majority of other citizens who follow public reason, not unreasonably, do not accept. Certainly Catholics may, in line with public reason, continue to argue against the right to abortion. Reasoning is not closed once and for all in public reason any more than it is closed in any form of reasoning. Moreover, that the Catholic Church's nonpublic reason requires its members to follow its doctrine is perfectly consistent with their also honoring public reason.”®

This stance on Rawls’s part is perfectly consistent with the famous position of Mario Cuomo in this regard and with the similar view taken by John Courtney Murray about the relationship between the Catholic Church and contraception. Rawls does not notice, however, the plurality of opinion within Christianity, in general, or within Catholicism, in particular, on the moral permissibility of both contraception and early abortions.”

Rawls does cite the well-known position on abortion taken by the late Cardinal Joseph Bernardin. In fact, Rawls commends Bernardin for articulating his opposition to abortion in the form of public reason. This is not to say that Rawls finds Bernardin’s position convincing, but his effort to articulate his opposition to abortion in terms of three basic political values— public peace, protection of rights, and moral standards appropriate in a community of law—at least puts him in the ballpark of public reason even if his side has been losing the game for some time.” Charles Kelbley, however, an otherwise sympathetic interpreter of Rawls, compares contemporary opposition to abortion with the efforts of the abolitionists, a comparison that is meant to take the positive things Rawls has to say about the abolitionists to apply a fortiori to opponents to abortion. In both cases the opponents of recognized legal rights (i.e., opponents to the right to own slaves and the right to have an abortion) rely on comprehensive religious doctrines concern-

ing the dignity of the person and the sacredness of human life. What Kelbley

Race, Sex, and Abortion 129 leaves out 1s crucial, however. We have seen that opposition to abortion most definitely violates the rights of pregnant women who would choose to have an abortion, but it is by no means clear that a fetus in the early stages of pregnancy is a

moral patient who could have its rights denied.” Once again, even Saints Augustine and Thomas Aquinas defended delayed, rather than immediate, hominization of the fetus. Quinn criticizes Rawls from the other direction. Whereas Kelbley largely agrees with Rawls’s political liberalism, he is skeptical of Rawls’s particular stance regarding abortion; Quinn largely agrees with Rawls’s “pro-choice” stance on abortion, but he is skeptical of Rawlsian political liberalism. Quinn wonders whether public reason alone can establish the conclusion regarding abortion that he shares with Rawls. Can public reason decide how to balance two great values in a hard case: the equality of women as well as respect for human life? Quinn thinks not because comprehensive doctrines largely lie outside the limits of public reason, hence, in political liberalism, those who oppose Rawls on abortion cannot do so by appeal to their comprehensive religious doctrine, but neither can those who agree with Rawls on abortion:

If they are to honor the limits of public reason, both sides must accept the discipline of restricting their appeals to generally accepted common sense beliefs and uncontroversial science. However, common sense is divided on or simply perplexed by the question of abortion and probably will remain so, and uncontroversial science is and is likely always to be

silent on the question of whether the early fetus is a person and so should be protected by a strong right to life. Hence it seems that resources of public reason cannot get us beyond a standoff between the two sides in this debate, a standoff that is likely to persist.” Thus we can either say, on Quinn’s assessment of Rawls, that public reason is too weak to determine a reasonable balance or that it permits two quite different versions of a reasonable balance. In either case, it does not provide guidance where guidance is needed, a problem that will be confronted again later. Once again, Audi is helpful in articulating the Rawlsian view. He emphasizes that those religious believers who appeal to genetics in their opposition to abortion should, in order to fulfill the demands of public reason, make sure that they are sufficiently motivated by this reason to oppose abortion. [hat is, if they think that their appeal to genetics needs to be supplemented by a religious belief in divine infusion of a soul into the early fetus, then they have not met the demands of public reason. Further, the fact that opponents to abortion at all stages of pregnancy have failed to convince most conscientious people, whose morality they otherwise fully respect, should constitute a datum in disequilibrium with their reflective equilibrium, or, as we have seen Audi put the matter, with their theo-ethical view. As Audi, Rawls, and I see things, if one believes there are reasonable, adequately informed people who

130 Race, Sex, and Abortion think on the basis of public reasons (not necessarily connected to their comprehensive doctrines) that the early fetus is not a moral patient, then one should be reluc-

tant to coerce them without evidentially adequate and motivationally sufficient public reasons. Because anti-abortion laws are coercive, the failure to supply such public reasons in a convincing way is noteworthy. A liberal democracy will not coerce on a theological basis; it will not do so, at least in part, in order to preserve religious liberty itself.” The critic of Rawls’s views on race and abortion who most deserves response is Michael Sandel. By carefully considering Sandel’s views in the recently published second edition of his Liberalism and the Limits of Justice, we will be better able not only to understand Rawls’s views on race and abortion as they relate to

comprehensive religious doctrines, but also to better respond to Kelbley and Quinn in their criticisms of Rawls on these topics. Sandel admits that it is a mark of the greatness of ‘IJ that it provoked not one but three major intellectual debates. First, at the time TJ was published, utilitarianism was the dominant moral and political philosophy in the English-speaking world and Rawls challenged this dominance by way of his rights-oriented liberalism. (We have seen that this challenge puts limits on the sorts of affirmative action programs that could be just, although it does not mean that all such programs would be unjust.) Second, TJ provoked a debate within rights-oriented liberalism itself between his own version of liberalism informed by the difference principle and libertarian liberals like Robert Nozick. And third, TJ prompted a debate between liberals in general (Rawlsians, libertarians, utilitarians, etc.) and communitarians; or, as Sandel likes to frame the debate, between those who see the right as prior to the good and those who are skeptical of this claim. It seems that Sandel sides with Rawls in the second debate, but disagrees

with him in the third. He contests the priority of the right to the good on three grounds. First, despite the political values that Rawls appeals to, bracketing or setting aside for political purposes one’s comprehensive religious (or philosophical) doctrine is not always reasonable, according to Sandel, as we will see. Second, the fact of reasonable pluralism applies not only to the variety of comprehensive religious (or philosophical) doctrines, as Rawls thinks, but also to different views of justice itself, contra Rawls. And third, a more inclusivist view of public reason than Rawls’s view is needed so as to restore important dimensions of political discourse

that have been impoverished in liberal conceptions of politics. It would make sense, he thinks, to bracket comprehensive religious (or philosophical) doctrines if one denied that any of them could be true, but Rawls admits that some such doctrines might be true. The true ones should burst the brackets if the values thereby gained would outweigh the political values of toleration, fairness, and social cooperation based on mutual respect.” To put this last point in the way Sandel does leaves one with the impression that toleration, fairness, and social cooperation based on mutual respect are parts

Race, Sex, and Abortion 131 of a weighing process such that the truth, or the alleged truth, of some comprehensive religious doctrine can weigh more heavily than political values like fairness. Of course this is exactly the problem that political liberalism is meant to solve. It is not clear how this problem can be solved if, say, the Catholic doctrine of the beginning of a human person at conception is not only believed to be true, but is also allowed to trump procedural fairness. To be accurate, Sandel should refer not to tHe Catholic doctrine in this regard, but to the current official view in Catholicism, resisted by those who have read carefully, and are convinced by, Augustine’s and Thomas Aquinas’s views on delayed hominization. Immediate hominization became the dominant view in Western Christianity in general only after the seventeenth century, when scientists, using primitive microscopes and magnifying glasses, thought they saw fully formed fetuses (homunculi) a few days after fertilization. Unfortunately, when this biological error was noticed, churches did not return to delayed hominization. The point here is to show how murky this whole matter is, a murkiness that has political ramifications. We know that women are persons worthy of political respect. I/we knew the same about early fetuses then they would deserve political respect as well. But we do not have such knowledge. This is not to rule out immediate hominization altogether, nor is it to presuppose that delayed hominization ts true, as Sandel alleges

of those who would permit abortion. The fact that immediate hominization is a debated matter both within and outside of the bounds of comprehensive religious doctrine in Christianity should make us, from a strictly political point of view, suspicious of efforts to show disrespect to women who choose to have abortions early in pregnancy. Sandel is plainly wrong in claiming that defenders of immediate hominization are not even allowed to try to persuade fellow citizens of their view in political liberalism. They are certainly free to do so, but if the basis of their view is the belief that God breathes a soul into a fertilized egg, they must be prepared to be asked how such a view could possibly be supported by public reason. Perhaps if they framed their view in terms of the genetic inheritance that is received at con-

ception they would have spoken in a way conducive to public reason. But then they would also have spoken in a way liable to be criticized by those who think that a human genetic code is not sufficient to make us humans in a morally relevant sense (medical waste after an operation often contains live cells with a human genetic code). The fact that we are, at the very least, as sentient as animals is sufficient to make us moral patients of some sort. But this requires a central nervous

system. It should be reiterated that Rawls need not claim dogmatic confidence that the early fetus is morally different from a baby; the ambiguity of the issue itself has political consequences.” On one point Sandel 1s surely correct, but we need not make as much of it as he does: zf immediate hominization is true, as many religious believers think it is, then the cost of bracketing this view is high. But we do not know it to be true

132 Race, Sex, and Abortion through public reason, and the status of this view even within a comprehensive Christian doctrine is questionable, at best. 4// reasonable people, by way of contrast, see women as moral subjects worthy of respect. Defenders of immediate hominization are politically free to try to convince us of the truth of their position, despite what Sandel says when he tries to turn Rawls into a pure exclusivist. But they must do so in terms supportive of public reason. As before, in recent decades their efforts in this regard have failed, and it is this response that should be made to Quinn and to Kelbley, as well as to Sandel.” It must be admitted that reasonable people who do not now view early fetuses as humans in the morally relevant sense may in the future come to do so, just as some nineteenth-century racists came to change their view of the humanity of blacks. This does not strike me as likely, but because of the demands of reflective equilibrium we should be willing to change our views if either our historically influenced intuitions change or if we are presented with new arguments that we find convincing. Sandel is like Quinn and Kelbley in drawing an analogy between opposition to abortion and the abolitionists. Why is Rawls supportive of the abolitionists but not of opponents to abortion?, they seem to ask. One obvious response is that no reasonable person is convinced any longer that a black human being is only threefifths of a person, if reasonable people ever were rea//y convinced of this view. But Sandel thinks that Rawls should be more favorably inclined to Douglas’s view than to Lincoln's in their famous debates. Douglas argued that the national government

should be neutral regarding slavery because some people and some states supported it, whereas others did not. The standoff regarding slavery meant that a political liberal in the mid-nineteenth century, had one existed, should have favored government neutrality between the conflicting comprehensive religious (or philo-

sophical) doctrines on either side of the slavery debate. It was Lincoln, not Douglas, who forced his comprehensive religious doctrine into the debate that slavery was morally wrong. Once again, however, we should not be seduced by Sandel’s attempt to have us see Rawls as an exclusivist szmpliciter. We have seen that he is a partial inclu-

sivist. Lincoln was justified in introducing his comprehensive religious doctrine into political debate because of several reasons: (1) such an introduction ultimately strengthened public reason itself by bringing political liberties to all persons, regardless of race; (2) all reasonable people now see blacks as human persons, but not all reasonable people see early fetuses as persons; indeed most people do not see early fetuses either as persons or as morally equal to babies; and (3) Lincoln’s use of religious language could easily have been, and at times was, cast in the terms appropriate to public reason, terms that reasonable people have found persuasive. In one sense the Lincoln-Douglas debates were not about the morality or immorality of slavery, but about whether to bracket a moral controversy for the sake of political agreement. Seen in this Sandelian light, Douglas's position seems closer to Rawls’s view than is Lincoln’s. That is, Sandel sees Lincoln’s view as an

Race, Sex, and Abortion 133 opposition to bracketing as such, whereas Rawls and Douglas are in favor of (pure exclusivist) bracketing. We have seen, however, that much is at stake when one collapses Rawls’s partial inclusivism into a pure exclusivism, or when one reifies Rawls’s encouragement to us to bracket comprehensive religious (or philosophical) doctrines into an absolutist stance, as Sandel does.”°

There is one further criticism that Sandel offers of PL that deserves comment. He sees Rawls as assuming that our disagreements concerning comprehensive religious (or philosophical) doctrines are intractable, but that our disagreements concerning justice itself can be ameliorated. This, he thinks, is an illegitimate assumption. Democratic societies, he claims, are teeming with debates not only about comprehensive religious (or philosophical) doctrines, but also about justice: affirmative action, tax fairness, income distribution, health care, immigration, and so on. Why not allow citizens to not only introduce, but to stand foursquare in politics on their comprehensive religious (or philosophical) doctrines and views of justice regarding all matters that are of concern to them?” The response of the political liberal should involve at least three points. First,

there is a relevant distinction here, one that Sandel notices but does not sufficiently emphasize, between the abstract principles of justice that reasonable people would affirm in an original position of equality and how these principles should be applied in concrete cases. Much of the disagreement that Sandel points to con-

cerns application of principle rather than principle itself. And it is with the abstract contours of justice that Rawls has always been concerned. The fact that TJ largely rescued moral and political philosophy from sterile debates in metaethics should not lead us to see Rawls as primarily an applied ethicist as this designation has come to be used. Second, regarding the principle of justice itself there is not as much disagreement among rights-oriented liberals as Sandel indicates. He provocatively asks, “Is Milton Friedman’s objection to redistributive policies a less ‘reasonable pluralism’ than Pat Robertson’s objection to gay rights?””” But all liberals, including libertarians like Nozick and Friedman, are largely in agreement with Rawls concerning both the equality principle and the first part of the difference principle. It is only the second part of the difference principle that causes major dissent among rights-oriented liberals.

Third, even regarding the second part of the difference principle it is open to Rawls to claim here that there is no fact of reasonable pluralism as there is regarding the fact of reasonable pluralism of comprehensive religious (or philosophical) doctrines. That is, the libertarian view of Friedman would not be agreed to by reasonable people in the original position under conditions of freedom and equality, but only looks attractive to some citizens in the full light of their talents and natural characteristics. Sandel is correct that libertarians will not likely fall silent or disappear, and in this regard they are like the defenders of other comprehensive religious (or philosophical) doctrines. I assume that Nozick’s and

134 Race, Sex, and Abortion Friedman’s libertarianism is a comprehensive doctrine meant to deal with much more than political issues, hence their view is not so much at odds with Rawls’s political liberalism as Sandel indicates. That is, their view is much wider than Rawls’s view.

One final quibble with Sandel is required. Playing off the old saw that where angels fear to tred, fools rush in, Sandel offers a modern version to the effect that

where political liberals fear to tred, fundamentalists rush in. Fundamentalists sometimes are foolish, and political liberals should be flattered to be compared to angels, but Sandel’s apparent compliment is hardly that. His point seems to be that by discouraging intelligently defended versions of comprehensive religious doctrine from entering politics we create a power vacuum to be filled by comprehensive religious doctrine that is, to put it mildly, less intelligently defended. One wonders, however, if the appropriate way to politically counteract an unintelligently defended comprehensive religious doctrine is with another, albeit defended intelligently. Think of Thomas Aquinas here, who was neither a fundamentalist nor stupid. But he thought that recalcitrant heretics should be 4i//ed!** The political response to a muscular, dogmatic, and unreasonable religiosity, whether defended intelligently or otherwise, is to continue to encourage both: (1) tolerance of reasonable differences; and (2) the development in all parties of the the habit of distinguishing between one’s own comprehensive view and the fair terms by which all reasonable parties can agree to share a life together in a democratic society.

CHAPTER TEN

War, DisoBeDIENCE, AND EXLECTIONS

Pp olitical liberalism also has practical implications for another issue where politics and religion intersect: pacifism. Rawls at times holds that political power is always coercive power, which, in a constitutional regime, is the coercive power of the public. That is, even if this coercive power is used rarely, scrupulously, and can withstand public scrutiny, it is always there in the background. How should we deal with those pacifists who (like myself*) object to violence as a matter of prin-

ciple, as a matter of deepest concern within their comprehensive religious (or philosophical) doctrines? We should begin a response to this question by assuming that Quakers and other religious pacifists accept constitutional democracy and abide by legitimate law without seeing the need to have it supported by threat of violence. Therefore they find themselves in a position very similar to that of those who are opposed to abortion. Opponents to war as well as opponents to abortion are free to try to persuade others of their views, as long as they do so in ways supportive of public reason, by “witnessing” to the views they hold dear.” But they have to realize that from a political point of view the intensity of their beliefs is irrelevant if the vast majority of reasonable people in a constitutional democracy disagree with them. It is one thing to think that the outcome of a vote is wrongheaded, is is quite another to adandon one’s allegiance to democratic decision-making. Anyone holding a reasonable comprehensive doctrine must ask herself on what political terms she 1s ready to live with defenders of other reasonable doctrines in a free society:

Let us say, then, that the exercise of political power is legitimate only when it is exercised in fundamental cases in accordance with a constitution, the essentials of which all reasonable citizens as free and equal might reasonably be expected to endorse. Thus, citizens recognize the familiar distinction between accepting as (sufficiently) just and legitimate a constitution with its procedures for fair elections and legislative

135

136 War, Disobedience, and Elections majorities, and accepting as legitimate ...a particular statute or a decision in a particular matter of policy.” Constitutional democracy is the form of government most in accord with the religious injunction to be equally concerned with the equal rights and fundamental interests of others, and sometimes these others see things in reasonable ways that are nonetheless at odds with one’s own reasonable way of seeing. On this line of reasoning, both opponents to abortion (with whom I happen to disagree) and opponents to war (with whom I happen to agree) need to commit themselves to the overriding nature of political values in upholding a constitutional system itself, even if particular reasonable statutes may be seen as misguided and perhaps even protested by means of civil disobedience or conscientious refusal. In a perfectly just society no case could be made for civil disobedience or conscientious refusal, but even in a nearly (but not fully) just society there is room to protest particular statutes that seem especially wrongheaded, even if they are enacted by people who otherwise seem reasonable. There is nothing inherently unreasonable in defending just war theory or a right to self-defense, on the one hand, even if the pacifist reasonably thinks that knowingly killing another human person is a morally grave decision that should be avoided, on the other hand. Dogmatic pacifists should be led to see that just war theory is a reasonable view, just as thinkers like Macedo push too far when they condemn pacifism itself as necessarily unreasonable. As with opposition to abortion, however, opposition to war should be articulated in politics in terms of public reason and not merely in sectarian terms.” Rawls’s famous theory of civil disobedience is designed for the special case of a nearly just society: perfectly just societies do not have the need for civil disobedience and blatantly unjust ones might need more drastic responses. He defines civil disobedience as a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government. By acting in this way one addresses the sense of justice of the majority of the community and declares that in one’s con-

sidered opinion the principles of social cooperation among free and equal [persons] are not being respected.”

A similar view of civil disobedience was given by Martin Luther King in his “Letter from Birmingham City Jail.” Civil disobedience is justified not through appeal to religious doctrines, although these may coincide with and support one’s claims, but through appeal to the commonly shared conception of justice that underlies the political order. It is essential that civil disobedience be a public act in that it is a form of address, like public speech. Specifically, it is meant to address the public’s sense of justice.

War, Disobedience, and Elections 137 In a nearly just society there is a presumption in favor of restricting civil disobedience to serious infringements of the equality principle, as when certain religious groups are oppressed, and to blatant violations of the difference principle. Io deny justice, according to these two principles, is to either refuse to recognize another person as an equal or to exploit the contingencies of natural fortune for the advantage of some. Such injustices invite either submission or resistance, a resistance that could be either violent or, in the case of civil disobedience, nonviolent. In effect, civil disobedience is a political rather than a religious act even if it is ultimately confirmed or supported by religious impulses. “It relies upon . . . principles of justice that [persons] can require one another to follow and not upon the affirmations of religious faith and love which they cannot demand that everyone accept.”° Civil disobedience is derived from the public conception of justice itself, even if many of its practitioners claim a sectarian foundation for their beliefs. The following progression is outlined by Rawls. The Middle Ages lacked the basic idea of modern constitutional government where the people had final authority. Unjust kings were put aside, but not necessarily as a result of established institutional controls. The institutionalizing of this authority through elections, the power of recall, and other constitutional forms sets the stage for morally permissible civil disobedience. Because overlapping (rather than strict) consensus cannot be perfect, heated disagreements are entirely possible among reasonable people who largely agree about constitutional essentials.’ In conscientious refusal, by way of partial contrast with civil disobedience, it is not the citizen who initiates a dispute with the government, but the government that confronts a conscientious refuser. Conscientious refusal consists in noncompliance with a direct administrative order or legal injunction from the government. Clear examples are the refusal of early Christians to worship pagan idols, refusal of Jehovah’s Witnessses to salute the flag, or the refusal of religious pacifists to serve in the army. In these cases there is not so much an appeal to the sense of morality of the majority in that, for example, the pacifist in World War II may have had little, if any, hope of winning over the consciences of the majority to pacifism. In this case the pacifist simply refuses. But even though conscientious refusal is not public in the way civil disobedience is, it is nonetheless public in the sense that the refuser hopes that the necessity to disobey will not arise; the refuser really wants to get along with fellow citizens.° However, conscientious refusal is much more likely than civil disobedience to be based on religious or sectarian principles. In this sense conscientious refusal is much more closely tied to comprehensive religious doctrine than is civil disobedience. [he latter is an appeal to a commonly shared conception of justice, whereas the former may have other grounds. The early Christians would not worship pagan idols not primarily because such forced worship was unjust (although it was this), but primarily because it was contrary to their religious convictions. So also regarding the re-

fusal of the religious pacifist to serve in the military. There is no necessary

138 War, Disobedience, and Elections connection here, however. Conscientious refusal can be grounded on political principles, even if it is usually grounded on sectarian ones.

If at all possible, conscientious refusers should state their refusal in public terms because justice itself is threatened if people think that the dictates of conscience themselves must be respected simply as such. For example, what if someone is intolerant of others due to such dictates?: As we have seen in the case of the intolerant, the legal order must regulate [the citizens’| pursuit of their religious interests so as to realize the principle of equal liberty; and it may certainly forbid religious practices such as human sacrifice, to take an extreme case. Neither religiosity nor conscientiousness suffices to protect this practice.’ If a religion is legitimately denied full expression it should only be due to the fact that it is in violation of the equal liberties of others. Thus if pacifism is to be respected and not merely permitted, it must be because of the fact that it accords with justice and not merely because of the religious promptings some receive. Although Rawls himself is not a pacifist, as we have seen, he speaks eloquently of

the reasonableness of this position and of the possibility of its articulation in terms of public reason:

The political principles recognized by the community have a certain affinity with the doctrine the pacifist professes. here is a common abhorrence of war and the use of force, and a belief in the equal status of [people] as moral persons. And given the tendency of nations, particularly great powers, to engage in war unjustifiably and to set in motion the apparatus of the state to suppress dissent, the respect accorded to pacifism serves the purpose of alerting citizens to the wrongs that gov-

ernments are prone to commit in their name. ... the warnings and protests that a pacifist is disposed to express may have the result that on balance the principles of justice are more rather than less secure."°

In a free society no one should be compelled to perform violent actions in violation of equal liberty. The publicity requirement can also be met by conscientious refusers who are pacifists, as well as by civilly disobedient persons who are pacifists, if they appeal to traditional principles of jus ad bellum and jus in bello (roughly the justice of war and justice im war, respectively). Although these terms are rooted in religious distinctions, they have passed into the political discourse of states as they relate to each

other (e.g., in the Geneva conventions, international law, etc.). Rawls cites positively the theologian Paul Ramsey among others in this regard.” If jus ad bellum or jus in bello are violated, it is easier to justify refusal to enter military service than it would be otherwise, especially because conscription in any event is an interference with the basic liberties of equal citizenship. As a matter of fact, conscription can be justified, Rawls thinks, only if it is demanded for the defense of liberty itself.”

War, Disobedience, and Elections 139 Rawls’s view is nuanced here. He adopts the standard view that the refusal to take part in all war is an unworldly view bound to sectarian (or better, comprehensive) religious doctrine: “It no more challenges the state’s authority than the celibacy of priests challenges the sanctity of marriage.”’’ The state displays a certain magnanimity, he thinks, in exempting strict pacifists from military service. But Rawls qualifies this view by claiming that conscientious refusal based on jus ad bellum or jus in bello principles relating to particular conflicts is another matter. In fact, in the forseeable future it may well be the case that strict pacifism may make more sense than it has historically, say if it becomes progressively difficult to avoid jus in dello violations. Here he cites a volume on “nuclear pacifism” edited by Walter Stein, but the intellectual concern here could equally apply to the mental hospital bombed in the Grenada invasion in the 1980s, the civilians killed directly or indirectly in the bombing of Iraq, the NATO bombing in Yugoslavia, and so forth.” These events, and the even greater atrocities to which some of these events were a response, nonetheless indicate that although comprehensive religious doctrines can be divisive, they have not been the most destructive forces at work in

twentieth-century history, as they were perhaps in the sixteenth century. Wolterstorff is surely correct that it is to Rawls’s credit that he concentrates on comprehensive doctrines, in general, rather than solely on religious ones, in particular. That is, the brutality of the twentieth century was mostly due to nonreligious forces: nationalism, communism, fascism, economic hegemony, and so on.” To those who might criticize Rawls for not offering a radical enough critique of existing constitutional democracies, we should respond by pointing out that Rawls himself notices that the first part of the difference principle would seem to require a significant restriction by the distributive branch of government of inherited wealth in that unequal inheritance of wealth is on a par with other sorts of undeserved inequalities and hence can be justified only if it meets the restrictions of the difference principle (both the first and second parts). Having taught Rawls’s

thought many times over the years to college students, I have found that even middle-class students, and much more so wealthy students, tend to find ¢4is part of Rawls not only thought provoking but also quite radical."° Equally thought provoking and radical (at least given the current practice in the United States and other countries) are what Rawls sees as the practical implications of the equality principle and of the first part of the difference principle for fair elections. [his problem is one that poses perhaps the greatest obstacle in moving from our current approximation of a just society to a genuinely just one. The problem, as Rawls has identified it throughout his career, is that universal suffrage among reasonable human beings, regardless of race, sex, and so forth, is an “insufficient counterpoise” to the weight of money or social power. If elections are financed “not by public funds but by private contributions, the political forum is . .. constrained by the wishes of the dominant interests.”'’ That is, merely formal equality of opportunity is not the same as genuinely fair equality of opportunity. And infringements on fair

140 War, Disobedience, and Elections equality of opportunity are not justified by a greater (utilitarian) sum of advantages enjoyed by the society as a whole. Fair elections are required for a stable, well-ordered society because without them we have no assurance that officials will be sufficiently independent of par-

ticular social and economic interests. And without them not only the equality principle is in jeopardy; the surest means to make progress regarding the difference principle is to have public officials who are in a position to enforce it. The political liberties do not achieve their fair value if, in order to be elected, officials either

have to be wealthy or win the favor of those who are. The problem is actually twofold. In a private property democracy one must keep political parties and government officials independent of large concentrations of private social and eco-

nomic power; in a liberal socialist regime one must preserve independence of central government control and of bureaucratic power. In either situation, society

must bear a large part of the cost of organizing and carrying out the political process, including the conduct of elections.** The public financing of election campaigns, various limits on expenditures and contributions, and other regulations are not restrictions on individual liberty so much as they are attempts to preserve it. Money is not exactly speech, hence restrictions on the wealthy in this regard are not restrictions on their freedom of expression.” It is a dismaying state of affairs when many people do not realize this: the fair value of political liberties is required for a just political procedure, and to ensure their fair value it is necessary to prevent those with greater property and wealth from controlling the electoral process.”

There is nothing in the nature of things to suggest that fair elections and campaigns have to be privately financed. (Although justice as fairness as a political conception is not an instance of natural law doctrine, it does not deny such a comprehensive doctrine, either.) In fact, the present election system in the United States is due to some woefully inadequate decisions on the part of human beings, decisions that have led to grave imbalances in fair political liberties and a wide gap in distribution of wealth that undermines fair equality of opportunity in education, employment, and health care. Public occasions for orderly and serious dis-

cussion of fundamental political questions have all but dried up in the United States, at least. This is due, according to Rawls, to “the curse of money.” Politics is

unfortunately dominated by corporate and other organized interests which, through large contributions to campaigns, at the very least distort 1f not preclude public discussion and deliberation: In constant pursuit of money to finance campaigns, the political system is simply unable to function. Its deliberative powers are paralyzed.” Those who hold reasonable comprehensive religious (or philosophical) doctrines cannot help but be scandalized by this state of affairs.

War, Disobedience, and Elections 141 It must be emphasized, however, that even with all of the defects in the contemporary societies that only approximate justice, it is important not to give in to the forces of pessimism. In these societies there are good grounds for us to hope for a “realistic utopia” wherein we can take human beings as they are and the laws as they might be. We can also hope for a second original position, where representatives from relatively well-ordered and relatively just states establish principles of international justice behind a second veil of ignorance. That is, a relatively just state is to be distinguished from both an outlaw state and one that is burdened by unfavorable conditions that make justice extraordinarily difficult. There is also the Rawlsian hope that nonliberal peoples who are nonetheless decent (e.g., decent consultation hierarchies) can be part of relatively just world order. These latter states may very well be committed to a common good conception such that the consultation they get from citizens is not merely a commitment of loyalty, as in some Muslim caliphs. ’The dominant comprehensive religious doctrine in a decent nonliberal people, however, does not extend internationally. Rawls asks us to imagine the hypothetical state of Kazanistan, where only Muslim believers can hold positions of power, but where other religions are tolerated and where jihad is interpreted not in terms of empire but in a spiritual sense as a war against the passions. In Kazanistan there is the pervasive belief that Allah will punish heretics, hence it is not the state’s job to do so. The point to this hypothetical example is to give us hope that only a few states in the world at any particular time are likely to be outlaw states that provoke war. A realistic utopia is not an antediluvian fancy.”

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CHAPTER ELEVEN

ANIMALS AND Marcinat Cases

Soetheir scholars have treated the relationship between Rawls and animals, but results are often at odds with each other. The purpose of the present chapter is twofold. First, I will try to bring together Rawls’s thoughts on animals in [J as well as the often contradictory secondary literature on this topic. My hope is that by doing this we will have a reticulative grasp of the whole picture regarding Rawls’s view of animals and the problems with this view, rather than merely focusing on one narrow aspect of the problem at hand. And second, I will examine Rawls’s treatment of animals in PL. I will be concerned with the degree to which Rawls in this book resolves, or fails to resolve, the problems with his view of animals as pointed out by his critics. We will see that Rawls’s view of animals in PL relies (surprisingly!) on the traditional view of animals found in comprehensive Christian doctrine. Two assumptions will be made throughout this chapter. The first is that the term “animals” refers to nonhuman animals; this designation is for the sake of convenience only in that human beings are obviously animals. And second, I will as-

sume that the reader is familiar with two basic arguments commonly used by animal rightists. The first of these is the argument from sentiency, which, in abbreviated form, suggests that it is morally wrong to do avoidable harm to a sentient being who is capable of being harmed; yet such avoidable harm is done routinely

to animals when they are seen as sources of food, clothing, and so on; thus it is morally wrong to use them in these ways. This argument will come into play when we consider the possibility that the Rawlsian natural duty not to be cruel should apply to animals as well as to human beings. The second argument is that from marginal cases, which, again in abbreviated form, suggests that rationality is not a defensible criterion for moral patiency

in that it would exclude many human beings (the marginal cases of humanity) from the class of moral patients, thereby making it possible to eat infantburgers or to experiment painfully on retarded people. If the marginal cases have basic rights,

143

144 Animals and Marginal Cases however, then the same basic rights should be granted to animals who are at equivalent levels of morally relevant criteria like the ability to be harmed or pained. That is, the argument from marginal cases can just as easily be referred to as the argument for moral consistency. To avoid the argument, as Rawls tries to do, by, in effect, claaming that nonrational yet sentient human beings deserve respect but animals do not because they are human beings, is to resort to speciesism. This is a type of arbitrariness strongly analogous to other sorts of arbitrariness like racism and sexism. There is a complex literature associated with these two arguments that I will not summarize; I am only assuming that the reader has a minimal level of famillarity with these two arguments. We will see that Rawls has a hard time showing that either marginal cases or animals deserve to be treated justly, but he has an

easier time reaching some sort of rapprochement with the view that marginal cases deserve moral respect than he does with the view that animals deserve such respect, contra the argument from marginal cases. We will eventually see the connection between Rawls’s views and religion: in PL he seems to defend the traditional anthropocentric view of animals and of the natural environment found in comprehensive Jewish or Christian doctrine. Rawls is abundantly clear in TJ both that his theory of justice as fairness is

not a complete contract theory (in that he is only considering the principle of justice) and that the contractarian idea could be extended to include an entire ethical system. (To use the language of PL, there is such a thing as comprehensive contractarianism.) Animals are not included in his particular theory of justice as fairness, but Rawls does not think that there could be a contractarian account of animals even in a complete ethical theory (1.e., in comprehensive contractarianism) in that contractarian accounts only include relationships we have with other people.’ Three different levels of the concept of equality can be distinguished that illustrate why Rawls does not think in TJ that animals are regulated in a contrac-

tarian account of justice, an account that includes the concept of equality. The concept of equality applies, first, to the regular administration of institutions as public systems of rules, and second, to the application of these rules. Here Rawls insists that animals are excluded from these two levels of equality szmply because their status is not the same as that of human beings. It is only with respect to the third level of equality that Rawls indicates what

it is about animals that excludes them from consideration. Human beings are moral persons, he thinks, and animals are not, hence the former are covered by the

concept of equality and animals are not so covered. Moral persons are distinguished by two features: (1) they are capable of having, and are assumed to have, a conception of their good as expressed by a rational plan of life; and (2) they are capable of having, and are assumed to acquire, a sense of justice. Thus, those who

Animals and Marginal Cases 145 have the capacity to take part in the original position are owed equal justice. It should be noted that Rawls seems to assume that all human beings are moral persons with these two features. Or better, he assumes that moral personality is a potentiality that 1s ordinarily realized in due course. We are not told how we should deal with the extraordinary (i.e., the marginal) cases.” The status of extraordinary or marginal cases of humanity is further obscured when Rawls claims that the capacity for moral personality is a sufficient condition for being entitled to equal justice. By “leaving aside” the question of whether moral personality is a necessary condition for being entitled to equal justice, he is able, he thinks, to cover the “overwhelming majority of mankind.” And he thinks that there is no serious problem regarding the remaining cases. “We cannot go far wrong in supposing that the sufficient condition is always satisfied.” That is, on Rawls’s view even if the capacity for having a sense of justice were a necessary condition for receiving justice it would be “unwise in practice” to withhold justice on this ground in that such a withholding of justice would pose a risk to just institutions and, presumably, to the normal cases of humanity. Rawls is correct in noting that the sufficient condition for equal justice, the capacity for moral personality, is not stringent 77 the sense that no race or sex or rec-

ognized group of human beings lacks this attribute. What Rawls does not confront in TJ, however, is the question as to how to ¢heoretically account for those “scattered” individuals who lack the requisite capacity for moral personality, either from birth or by accident. On contractarian grounds one can grant full protection of justice to all those who have a minimal level of moral personality, even to those who have a lesser sense of justice than others. For example, some people can more easily than others develop the virtues of impartiality and integrity. However, all of the guarantees of justice are granted only if some minimal level of moral personality is present." Equality must apply to some class or other, Rawls thinks, but to which one? He opts for the class of human beings, and this because members of this class possess the “range property’ of moral personality, a property that Rawls sees as a natural capacity. Although he does not want to defend different grades of citizenship,

his egalitarianism here depends on a certain minimal level of moral personality being generally filled so as to justify universal application of the principles of justice to human beings. The gap here between what is generally, but not universally, the case regarding moral personality is partially closed when it is realized that it 1s a capacity that Rawls has in mind and not a realization. Thus infants who have not yet developed their capacity for moral personality nonetheless receive the full protection of the principles of justice.” It does not escape Rawls’s notice that a full discussion of justice would have to take up various special cases of lack of moral personality. For example, those who have temporarily lost their realized capacity for moral personality through

146 Animals and Marginal Cases accident or mental stress can, like children, be protected in that they still have the capacity, albeit in an unrealized state. Rawls is a bit unsure, however, regarding those whose misfortune is far greater:

But those more or less permanently deprived of moral personality may present a difficulty. I cannot examine this problem here, but I assume that the account of equality would not be materially affected.° Note Rawls’s use of the word “may” and his assumption that his account of equality will not be materially affected by the analysis of the truly marginal cases, those which do not even possess the capacity for a sense of justice. Rawls does not help matters much when he says that “Those who can give justice are owed justice,” and that it is om/y having a sense of justice that matters regarding the question of who is owed justice. Indeed, it is precisely this sort of contractarianism that gives rise to the problem of marginal cases. The above would seem to indicate that there is no room for an animal rights position in Rawls, except perhaps if one pressed the argument from marginal cases on Rawls so as to suggest that 7/he 1s willing to guarantee equal justice to the mar-

ginal cases—those human beings who do not even have the capacity for moral personality—he must also be willing to guarantee it to animals who are at the same level of mental and psychological and affective development as those marginal cases. There is a second possibility, however. Although no protection is given to animals in Rawls’s justice as fairness, it is crucial to note that a conception of justice is but one part of an overall moral view,

of a comprehensive doctrine. We do have natural duties in regard to animals, it seems, and perhaps to them directly (Rawls is confusing on these points). Rawls notices the capacity animals have to feel pain, and it seems that it is this capacity that leads him to say that it is wrong to be cruel to animals: this is perhaps what Rawls means by a duty of compassion fo animals. And Rawls also seems to be committed to a “duty of humanity” regarding animals, in Thomistic or Kantian fashion: if we abuse animals we will be more likely to abuse human beings. In any event, natural duties to or regarding animals are, 7 a sense, outside the scope of the contract doctrine. These duties arise out of the concept of natural duty itself, to be examined momentarily, and out of a metaphysical view of the world wherein natural order and our place in it are described. Rawls obviously does not supply such

a metaphysics in TJ, but we will see that he does (curiously) suggest one in PL along Christian lines.’ The concept of natural duty becomes understandable when we realize that it is redundant to have reasonable contractors to promise not to murder each other. What we need the reasonable contract for are the difficult cases. It is crucial to notice that Rawls himself lists among our natural duties the duty not to harm or in-

jure another and the duty not to cause unnecessary suffering. In fact, these two negative duties are, according to Rawls, stronger than any positive natural duties we

Animals and Marginal Cases 147 might have. These natural duties apply without regard to our voluntary acts, as in those found in the original position, and without regard to our institutional relationships. It is these features that suggest the propriety of the adjective “natural.”® If there is a natural duty not to cause unnecessary suffering, it makes sense to suggest that this duty applies to all beings who have the capacity to suffer, say to all beings with central nervous systems (including animals and late-term fetuses).

But although this natural duty does not presuppose an act of consent, it is in Rawls’s view “derived from a contractarian point of view,” hence it is of to be assumed that for Rawls it applies to animals. Natural duties hold unconditionally, for

Rawls, and they are more fundamental than obligations that arise in the social contract, but because they are viewed as fundamental and unconditional from the perspective of the social contract it is not always clear in Rawls that animals, lacking a moral personality, are owed natural duties. Likewise, we have a natural duty

to bring about a great good if we can do so easily (otherwise the action is supererogatory), but it is not entirely clear in Rawls if we have such a duty if the primary beneficiaries of this great good are animals.’ Before moving to Rawls’s critics, 1 can sum up what I have alleged about Rawls’s view of animals and marginal cases in TJ as follows: although there does not appear to be room for equal justice for animals as a result of deliberations in the original position, questions remain about: (1) the possibility of the argument from marginal cases being used so as to render Rawls’s view more consistent; and (2) the possibility of the argument from sentiency being used so as to make greater sense of Rawls’s view of natural duty. Now to the critics. Tom Regan notes that in an early work by Rawls (“The Sense of Justice”’’) having a sense of justice is a necessary and sufficient condition for receiving justice, hence the aforementioned view of animals in IJ is a somewhat more favorable one for animals in that in this book having a sense of justice is only identified as being sufficient for receiving justice. On Regan’s view, however, neither Rawls’s strong view implied in “The Sense of Justice” (that animals are not owed justice), nor his weak view in TJ (that it does not seem that animals are owed justice), are compatible with what Rawls seems to say about natural duties.” Rawls’s position regarding natural duties leads to a dilemma, which is this: e1-

ther being a moral person is a decisive consideration for determining those to whom we have (or seem to have) natural duties or it is not a decisive consideration. If it is a decisive consideration, then we have no natural duties to animals, contra

what Rawls sometimes indicates. And if it is not a decisive consideration, then Rawls might have to defend not only natural duties to animals, but also perhaps the duty to be just to them. Or again, there is some textual evidence to suggest that Rawls thinks that animals ought not to be treated cruelly even though they are not themselves bound by the natural duty not to be cruel.’* Why not also say, accord-

ing to Regan, that animals ought to be treated justly even if they are not duty bound to be just?

148 Animals and Marginal Cases In addition to pointing out a dilemma regarding Rawls’s view of natural duties, Regan holds that the original position should be reconceived. Even if we assume that only reasonable human beings can inhabit the original position, this does not necessarily mean that only they can be incarnated when the veil of ignorance is lifted. That is, the veil of ignorance needs to be thicker so as to occlude vision not only of one’s religion, race, class, and sex, but also of one’s species, as Donald Vandeveer has also argued. The reason for this thicker veil is that animals have individual welfare in the sense that their experiential lives can go well or ill for them. At the very least, they can be treated cruelly, as Rawls himself admits. And, as Regan also emphasizes, the argument from marginal cases can be used against Rawls in that many marginal human subjects that Rawls might want to protect in the original position (Rawls is unclear here) are no more possessive of moral personality than are most higher animals (i.e., those with central nervous systems). Alan Fuchs’s response to Regan is interesting in that he flatly denies that Rawls holds that we have a natural duty of noncruelty to animals in that natural duties are necessarily extended only to moral agents. That is, when Rawls speaks of a duty of noncruelty to animals he is not, according to Fuchs, speaking of a natural duty. [he question for Fuchs, however, is this: if the duty to avoid being cruel to animals does not arise for Rawls out of the original position (all agree on

this point—although some think that it should so arise), and it is not a natural duty (Fuchs’s view), what kind of duty is it in that these two sorts of duty seem to exhaust the Rawlsian options? We will return to this question later. In any event, Fuchs is to be commended for reminding us that the original position has as much to do with Rawls’s Kantian view of the status of agents (and of their relations with

animals) as with a concern for impartiality. The only way for a Kantian or a Rawlsian to acknowledge duties to animals, he thinks, would be if some of them (e.g., dolphins or chimpanzees) can be shown to have the reasonableness and sense of justice requisite for moral agency.” We have seen Regan criticize Rawls in at least three ways: first, he sees a dilemma involved in Rawls’s treatment of natural duties; second, he thinks that the argument from marginal cases can be used to render Rawls’s own view more consistent; and third, he sees the need for a revised original position. | would now like to examine this last criticism more closely. Vandeveer has developed a revised original position so as to identify principles that would reasonably adjudicate conflicting claims among all sentient creatures. It will be remembered that parties in the original position must assume that they will turn out to be among the least advantaged, including the possibility of being among the least intellectually endowed. In fact, they might turn out to be severely retarded. Even if only 1 percent of the human population fail to have a moral personality on Rawls’s criteria (a sense of justice and a rational plan of life), we are dealing with a significant number of people: anacephalic infants, the seriously psychotic, a subset of Down's syndrome patients, the severely retarded, the

Animals and Marginal Cases 149 senile, the irreversibly comatose, and so forth. There is no reason to think that Rawls would deny that we have duties of some sort to such beings, and he explicitly says, as we have seen, that it would be unwise in practice to withhold treatment

from them.” If we ought to extend treatment to marginal cases even though they are not owed it, we are obviously left with a puzzle. A more efficacious way to deal with the matter at hand ts to say, along with Vandeveer, that the Rawlsian difference

principle entails duties to those sentient yet nonrational animals who are not moral persons. Participants in the original position should choose principles for all beings with interests, or better, for all beings concerning whom we can speak of their own well-being or ill-being. Rawls’s own (apparent) natural duty not to be cruel to animals (contra Fuchs) seems to imply this. To choose in favor of marginal cases but not animals solely on the basis of species membership is, as Regan and others have emphasized, to be speciesist, a failing that is analogous to being racist or sexist. Vandeveer puts the matter this way:

If, then, the original position were fully neutral, its participants would not only have to be ignorant of their race, sex, or social position qua participants. ...it would seem that they would have to be ignorant of their species membership as well—subject only to the qualification that they shall have interests as participants [in the just society]. This version of the original position is not that of Rawls. Yet ...it is not clear why it ought not to be.”

If we knew we were to be incarnated as white or black, racist principles would more likely be chosen in the original position than if we did not have this knowledge. Likewise, if we assumed that we would be incarnated as human beings, speciesist principles would more likely be chosen than if we did not have this knowledge. If, however, we assume that we might be incarnated as a sentient, nonrational being (of whatever species), it would be rational in the original position to insist on duties to such a being, provided such a being posed no serious threat to others. It does not help much to respond by saying that animals do not even have the possibility of becoming moral persons when it is realized that permanently retarded or senile human beings do not have this possibility either. However, this revised original position is still compatible with due attention being paid to the more sophisticated interests of rational beings. Tom Huffman is like Vandeveer in seeing the need for a revised original position, but Huffman emphasizes the fact that there is something inadequate about the following claim, a claim that 1s at least hinted at by Rawls and made explicit by other contract theorists: that the human species is deemed uniquely morally significant because its members ¢ypzcal/y are moral persons with a sense of justice. But this is precisely speciesism in that the characteristics of individual animals and human beings are being ignored:

150 Animals and Marginal Cases If we start down the road of including beings within our scope of moral concern simply because they are members of some group or another, we may just as easily exclude others because of their group membership. This strategy is, of course, typical of racism, sexism and all of the other “isms” which seek to assign individuals more or less value than others based on their membership in some group.”° The proper task for parties in the original position is to protect any individual who has a sophisticated enough makeup that it can be pained or harmed. Even if such an individual might not be a moral agent, there is nothing that logically prevents it from being a moral patient. It is quite common for us to enter into a contract for the sake of another who 1s not a moral agent, as in a contract with a day care center or with a home for the mentally defective. Rawls’s account of the social contract is on a much higher level of abstraction

than traditional social contract theories. This helps to explain, according to Huffman, how the interests of sentient yet nonrational beings could, and indeed should, be considered in the original position. Those in the original position are rational and mutually disinterested, but Rawls himself admits that they might not have these qualities when they are incarnated. The one restriction on the scope of this incarnation is that the being in question can benefit from the decisions made by the rational and mutually disinterested parties in the original position: marginal cases and animals can so benefit, rocks and insects and plants (presumably) cannot. (Obviously there are some factors—e.g., sunlight— that are “in the interest of” a plant, but a plant cannot “take in interest in” them.) An example from fiction is helpful. In Flowers for Algernon by Daniel Keyes, a severely retarded man is made temporarily rational (in fact, a genius) by a miracle drug that eventually wears off. We can easily imagine the demands he would make while rational regarding how he would like to be treated when the drug wears off. And it should not be too hard to do the same were the subject in question a chimpanzee or a cow or a laboratory mouse.””

Lilly-Marlene Russow objects to the attempts of those like Vandeveer and Huffman to have some of the participants in the original position incarnated as animals without having properly understood what the original position is supposed to accomplish. The original position, she urges, was set up in response to utilitarianism, specifically utilitarianism’s failure to respect individuality. And individuality involves having and caring about a life plan. Thus, participants in the original position can only be incarnated as moral persons, she thinks, that is, as moral agents. Animals can enter the original position on this basis only if they are moral agents (as may be the case with respect to chimpanzees and dolphins). ‘That is, on Russow’s view philosophers like Vandeveer and Huffman are not so much stating what could or should be done with the Rawlsian original position as they are introducing new themes that are independent of, indeed contrary to, Rawls’s basic ideas. "*

Animals and Marginal Cases 151 Russow admits that we cannot be assured that participants in the original position will be as clever in real life as they are behind the veil of ignorance (recog-

nizing valid arguments, grasping economic calculations, etc.). But in order to maintain her focus on the role of moral personhood in Rawls, she must also emphasize (indeed, like Fuchs, she must overemphasize) the tentative and equivocal treatment of animals in IJ. If moral personhood were the whole story in Rawls he would not even be tentative and equivocal; rather, he would explicitly and unequivocally deny that we have any duties to animals. But he does not do this, hence there is, in fact, an aperture for Vandeveer and Huffman to crawl through. Further, Regan as much as Rawls can counteract the defects in utilitarianism, but the former can do so without largely excluding animals from the realm of moral patiency.

It is also significant that Russow is not bothered by the fact that, srictly speaking, marginal cases are not included in Rawls’s theory of justice. Rather, she is consoled by the fact that the theory of justice is only part of morality, that part that deals with what reasonable moral agents would agree to in a social contract. But in the article in question, at least, Russow does little to help us to understand how marginal cases and animals at the same level of sentiency are to be protected in a full-blown morality. If they are not included in the social contract, are there natural duties to them? Or will marginal cases and animals be protected by our

comprehensive religious (or philosophical) doctrines? In any event, Regan, Vandeveer, and Huffman have shown, I think, that Russow is premature in claiming that those who defend the argument from marginal cases discredit contractarian views from the outset. In fact, these three thinkers have shown an interest in working within the contractarian position so as to improve it. Steve Sapontzis, however, unlike Regan, Vandeveer, and Huffman, does think that it is precisely the “contractarian attitude” that eliminates animals from Rawlsian concern. The very question, “What sorts of beings are owed the guarantees of justice?” is itself prejudicial in that the issue of who 1s owed something ordinarily presupposes that the benefit has to be earned. Hence, the contractarian approach seems of necessity to treat animals (and marginal cases) prejudiciously.”” The conclusions reached thus far are reinforced through a consideration of a

debate between Michael Pritchard and Wade Robison, on the one hand, and Robert Elliot, on the other.*” The former think that a revised original position would enormously complicate the workings of reasonable people in that position,

and that by considering animals we would conflate Rawls’s theory of justice (which is only applicable to human beings, they think) with the derivation of morality in general found in a comprehensive religious or philosophical doctrine (where animals are presumably included). That is, the proposed change in the original position would entail a fundamental change in Rawls’s contractarianism.

Elliot, however, is like Regan, Vandeveer, and Huffman in thinking that Rawls’s own veil of ignorance is too thin and that Rawls’s defenders are unpersuasive in their efforts to keep it thin with regard to knowledge of one’s species. Rawls

152 Animals and Marginal Cases too easily assumes that excluding marginal cases from justice will weaken just institutions but excluding animals will not. He can only do this by confusing a biological classification with a moral one. The regulative ideal provided by the social contract can affect animals in many ways, say regarding what can easily be seen as their primary goods or their share of the wealth: a livable habitat. Further, Elliot is correct to emphasize the fact that comparative judgments regarding the interests of human beings and animals are not as problematic as Pritchard and Robison suggest. In fact, these judgments might be easier when they concern animals than when they concern human beings in that animal interests are comparatively more straightforward and less abstract: animals simply want food and the space necessary to express their desires, and so on. Io give animals their due regarding these basic goods does not contradict the belief that there are still varieties of moral concern in addition to those associated with justice, as in those concerns regarding

what virtuous people would do in relation to animals in addition to what they would do minimally as a matter of justice. My task now ts to see the degree to which Rawls’s treatment of animals in PL can help to shore up his defenders’ efforts and to respond to his critics. Not much help is given in PL regarding the issue of how Rawls would deal with the status of marginal cases, a question that he says he will “put aside for the time being” (?). As before, he wishes to deal with an idealized and simplified case — moral persons—in order to focus on what he sees as the main question, that in PL is the question of public political culture. He knows that there are “problems of extension’ that he must eventually deal with: extending justice as fairness to future generations, extending it to cover international law (see LP), and for our purposes,

extending it to cover marginal cases and animals (and the rest of nature). Apparently he thinks that if we start with the principles of justice defended in TJ, move to the particular area of extension, and return to the principles of justice, and so on, we can engage in a back-and-forth procedure that will eventually give us an adequate account of our moral relations with marginal cases and animals.”" But Rawls is ambivalent in PL. On the one hand, he explicitly admits that justice as fairness, in particular, and contractarianism, in general, ultimately might fail the test regarding the effort to extend the social contract so as to include marginal cases and animals. On the other hand, he is (again) somewhat confident in his assumption that marginal cases can conveniently be set aside until later. Until that time he is content to deal with the normal cases. Or better, the parties behind the veil of ignorance do not know what natural talents and habits they will have when the veil is lifted, but they do know that these talents and abilities will be within the normal human range. What this means is that the attempts of Regan, Vandeveer, Huffman, and Elliot to revise the original position so as to use the argument from marginal cases to extend Rawlsian concern from marginal cases to animals (in that the argument from marginal cases can be rephrased as the argument for moral consistency), are not so much refuted as ignored. Rawls stops this effort to use the

Animals and Marginal Cases 153 argument from marginal cases in its tracks by leaving the status of marginal cases in a precarious position, the same precarious position found in TJ.” For Rawls in PL the key issue regarding animals concerns when a question can be successfully resolved by public reason. Many questions, it seems, cannot be resolved by Rawlsian public reason, not even by what Rawls calls a “complete” public reason. There are at least four major “problems of extension” for Rawls to deal with in his defense of public reason. One is the problem of extending justice to future generations (1.e., the problem of just savings). A second problem is that of extending it to principles that apply in international law (again, see LP). The third problem is that of extending justice so as to develop principles governing just distribution of health care. Although Rawls does not deal with these problems in any more detail here than he did in TJ, he is nonetheless confident that they can be reasonably dealt with under justice as fairness. Regarding the fourth problem of extension, the effort to extend justice to animals and the rest of nature, however, Rawls is ambivalent, as we have seen, and he is not nearly as sanguine as he is regarding the other three problems of extension. He is less optimistic regarding animals because if we take for granted the full status of adult (normal) persons in society, we can easily proceed forward to other generations of such persons, outward to other societies that contain such persons, and inward to consider the health care needs of such persons, but we cannot easily include animals because they are not moral agents (chimpanzees and dolphins aside). According to the principles contained in the revised original position, however, one should also move outward to the least advantaged cases of humanity, to those marginal cases who are nonrational yet sentient; and, in order to be consistent, to animals who are also nonrational yet sentient.” That Rawls should altogether ignore the revised original position and the argument from marginal cases in his later work is a significant omission. From what has been said thus far, it might seem that Rawls has not advanced his position one iota beyond his view of animals found in TJ. But in a surprising move he introduces a comprehensive religious doctrine that is presumably far wider than (and perhaps different from) the view that would be agreed on by reasonable persons in the original position in the effort to establish principles of jus-

tice and principles of public reason. That is, what we agree to in the original position will most likely be less than (or possibly different from) what is included in our own comprehensive religious or philosophical doctrine in that what we are looking for in the social contract is an overlapping consensus that can be reached with those who have different, perhaps radically different although reasonable, comprehensive doctrines from our own. In fact, it is the existence of reasonable pluralism of religious (or philosophical) comprehensive doctrines that creates the very need for a social contract and for public reason. Rawls’s surprise move consists in invoking the traditional Christian view of animals and the rest of nature, a view that is certainly not everyone’s comprehensive

154 Animals and Marginal Cases doctrine. On this comprehensive doctrine animals are seen as subject to our use and wont. Rawls apparently likes this view because it is clear and practical.** We can further our own good and that of future generations by using animals and the rest of nature judiciously; we can improve human health through biological and medical knowledge gained through animals and the rest of nature; and by protecting the beauty of nature we can enhance public recreation and a deeper understanding of the world.

Even if we assume that it might be reasonable to adopt this stance in the original position (a questionable assumption), this stance is obviously not the only plausible candidate for adoption; nor does this stance help Rawls to argue against the revised original position proposed by several scholars. What Rawls seems to be attempting to do here is to set up a battle between two comprehensive doctrines,

between what he sees as the traditional Christian view of animals and a view found in what he calls “natural religion.” This latter stance he identifies as a stew-

ardship view, in contrast to the anthropocentrism traditionally found in Christianity. Rawls’s usual evenhandedness is not in evidence in his treatment of these contrasting views, however. Io adopt the stewardship view of natural religion, he thinks, is not a constitutional essential or a basic question of justice as these questions are specified in the original position; public reason does not apply to the concern for animals shown by the natural religionist. Natural religionists are free, he admits, to try to convince other citizens of their nonpolitical views, but they should not assume that reasonable people will, or even should, agree with them. In this regard Rawls seems to place the natural religionist alongside the pacifist and the opponent to abortion. The question to be asked of Rawls, how-

ever, is whether the traditional Christian view of animals that he apparently adopts is any more to be identified as a constitutional essential or as a basic matter of justice than the stewardship view he apparently rejects.” Perhaps the traditional Christian view is given favorable treatment by Rawls because all of the reasons he cites in its favor are anthropocentric reasons for respecting animals and the rest of nature, reasons that are more easily made compatible with the anthropocentrism of Rawls’s version of the original position. Two additional points should be made in light of Rawls’s most recent efforts in PL to deal with animals and marginal cases. First, there is a significant ambivalence in Rawls regarding animals. On the one hand, at times he assumes that marginal cases and animals can be put aside and that their status can be eventually clarified. On the other hand, at times he admits that his version of justice as fairness, in particular, and contractarianism, in general, might eventually fail in the effort to protect marginal cases and animals. His confidence regarding efforts to extend justice to future generations, to principles in international law, and to the health care needs of moral persons, and his relative lack of confidence that it can be extended to animals, is an indication of this ambivalence. Another indication

Animals and Marginal Cases 155 lies in Rawls’s decision not to even consider the revised original position as developed by several critics in the almost thirty years since the publication of TJ. It is hard to imagine that the efforts of all of these critics could have escaped Rawls’s

notice. It is ironic that these critics have a great deal of admiration for Rawls’s work; they think that he, like Lavoisier, has made a great discovery, but he is mistaken about the precise character of that discovery. Second, Rawls compounds the felony committed in TJ. In that earlier work he was not entirely clear about whether animals, left out of the original position both as moral agents (understandbly) and as moral patients (questionably), might be acknowledged as having some status as moral patients as a result of natural duties that antedate the social contract. In PL he is equally unclear about the extent to which animals are to be primarily understood in terms of a comprehensive religious doctrine that citizens will carry with them after the original position. That is, Rawls should be clearer both with respect to his Promethean foresight regarding which comprehensive doctrines should be allowed to influence our political views after we leave the original position and with respect to his Epimethean hindsight regarding the natural duties that precede the original position. It should also be noted that the traditional Christian view of animals is more complicated than Rawls indicates in that it includes both an anthropocentric element and a stewardship element. Or better, Christians are supposed to be theocentric rather than anthropocentric, hence Rawls’s version of comprehensive Christian doctrine leaves something to be desired. Further, there is a problem with Rawls’s analogy between opposition to gratuitous suffering and death inflicted on animals

and opposition to abortion, both of which, he thinks, can be parts of a comprehensive religious doctrine, but they are not parts of what would be agreed to as basic elements of justice in the original position. The problem with the analogy concerns the nonsentient status of the fetus in the early stages of pregnancy (tacitly accepted by Rawls himself), such that an early fetus could hardly be harmed, and the sentient status of animals with functioning central nervous systems.” The fact that Rawls prefers one comprehensive doctrine as it relates to animals and perhaps to marginal cases (the traditional Christian view, which he sees, perhaps erroneously, as strictly anthropocentric) to another (the stewardship view found in what he calls natural religion), seems to confirm what all of the defenders of the revised original position have suspected: anthropocentrism is assumed from the outset in Rawls’s original position, and presumably, constitutes a funda-

mental axiom for him that is not amenable to criticism. At the very least, one would hope that the deeper understanding of the world made possible by a study of animals, a deeper understanding noticed by Rawls himself, would encourage him to put his anthropocentrism on the table for discussion. It is troublesome that in PL Rawls lumps together animals and the rest of nature without even a hint that there might be a difference in moral status between

156 Animals and Marginal Cases coyotes or pigs, on the one hand, and ferns or rocks, on the other. But, once again, there are Rawlszan grounds for hope. We have seen that there is some evidence in Rawls himself that we have a natural duty not to be cruel to animals. And the desire to develop a revised original position is aided by Rawls’s own acknowledgment in [J of the artificiality of adopting the point of view of a plant, but the plausibility of doing so for an animal.”

EPILOGUE

AS with the relationship between science and religion, when we think of the relationship between politics and religion our minds immediately think of conflict. But in order to avoid hyperbolizing these conflicts, it is perhaps best to periodically expand our historical vision in the way a diplomat uses a large-scale map

as a preservative against panic and against a misunderstanding of the general peace among nations. Religious ideas develop gradually, as do ideas in science and politics. For example, in the seventeenth century a Jesuit named Petavius discov-

ered for the first time that doctrines widely held in the first three centuries of Christianity would have been heretical if held in the fifth century. In order to make progress in politics, religion, or science we should get in the habit of avoiding mutual anathemas. But a clash of doctrines should not in itself be seen as a disaster; it is an opportunity.’ One of the key arguments in favor of toleration in politics, religion, and science alike is that it allows for a variety of opinions, which is a step toward progressive evolution of real knowledge, as in the biblical injunction to “Let both grow together until the harvest.” It is a curiosity of Christian history that this injunction has only been practiced intermittently. It was first science in the seventeenth century that faced change with an openmindedness that has gradually worked its way into politics and religion as well. In politics, the divine right of kings, claims to aristocratic privilege, and slavery have gradually been replaced in several parts of the world by liberalism, broadly conceived. The question of how a

broadly liberal view of politics should be defended, however, is a controversial matter, as this book among others indicates. The expansion of vision that entered seventeenth-century political thought (crucial for Rawls) and seventeenth-century scientific thought (crucial for Alfred North Whitehead) leads one to ask: To what extent can we expect religion to change, to be more openminded? Whitehead was optimistic both that religious dogma could improve and that the virtue of toleration in religion could be enhanced. Rawls prescinds from the former, but wholeheartedly supports the latter. 157

158 Epilogue One thinker who is familiar with both Whitehead and Rawls may help us understand the issues at stake here regarding long-term optimism, although we will see that his views are ultimately at odds with Rawls’s. Franklin Gamwell’s challenge to Rawls is basically the following one: Because religious activity asks and answers the question of human authenticity as such, every religious conviction claims to represent a self-

understanding that ought to be exemplified without duplicity in all human activity. This seems to point to a much stronger version of the inclusive view of public reason than any a Rawlsian could find defensible. This is because the original position, still retained in PL, may be understood as offering the method for providing political liberalism with its status as freestanding and independent of any comprehensive religious doctrine, which is precisely what Gamwell thinks is incompatible with religion’s drive to be exemplified in a// human activity. Rawls’s view, by way of contrast, is that the freestanding character of political liberalism allows it to be nonfoundational in one sense, but in another sense it allows religious believers and philosophers to be as foundational as they wish as /ong as they are reasonable. Vhis requirement that religious believers be reasonable implies a certain sort of restraint, rather than the encouragement to insinuate religious belief into a// human activity and presumably into a// institutions. We have seen how, in the partial inclusivist view of public reason, comprehensive religious doctrine can condition public discourse on political issues, but it is also crucial to notice that the publicity requirement and the priority of the right to the good have, from the seventeenth century to the present, historically conditioned comprehensive religious doctrines as well. Gamwell’s worry is that this latter sort of conditioning unfairly weakens religion, which, he thinks, by its very

nature militates against a freestanding conception of justice and the priority of the right to the good. In fact, he wishes to argue for the reverse: Every religious adherent necessarily asserts that the valid comprehensive understanding of human authenticity is prior to, because it identifies or justifies, permissible moral conceptions as such.” Here one wonders if we are not being asked to return to a view that is preliberal, the view that comprehensive religious doctrine is the basis on which a conception of justice can be defended. Whitehead also, at times, recurs to pre-seventeenth century thought, but not regarding the political principles introduced by liberalism. If religion is, as Whitehead suggests, not solitariness but what we do with our solitariness,* then we are left with several options regarding the relationship between politics and religion. One option is to assume that one’s own political views should reign supreme (the luxury possessed by a monarch or by God, perhaps), another is that one’s own political views along with others who are like-minded

Epilogue 159 should reign supreme. Up until the seventeenth century these were seen by many as acceptable options. A third option is the most defensible one, however, given the fact of reasonable pluralism: one’s own views along with those who are like-

minded as well as those who are unlike-minded but reasonable should all be treated fairly. As Charles Hartshorne puts the point, a liberal is one who knows he or she is not God.” However, Gamwell forces us to take the following question seriously: Can religion be just one part of culture? If its object is our ultimate concern, it seems that it cannot in that its mission seems to be to order all of the other parts of culture. The problem with this view, however, is that it mislocates where the integration made possible by religion occurs; it is an instance of the fallacy of misplaced concreteness. In point of fact the authority of the church is no longer normative for all of culture. But this can be seen as a positive development in that religious belief must now largely come from within, rather than from the pressure exerted on culture by a militant church. That is, religious integration or wholeness should be found in integrated, whole individuals in community with like-minded individuals rather than in the integrity of Christian political institutions. The solitude or interiority that religion can integrate is not the sort that isolates us from culture; rather it is a solitude or integrity that enables us to integrate our own private concerns with those aspects of our lives that we share with others.° Even if one detests pluralism, one nonetheless has an obligation to tolerate others if they are reasonable; and one can at least try to understand them. In a certain sense Christianity has, from the start, been a tolerant religion. For example, 90 percent of the Catholic Office of the Hours comes from Hebrew scriptures, especially the Psalms. Or again, Christian mysticism’s structure largely comes from an appropriation of Platonic (and neo-Platonic) metaphysics. I am not claiming that Christianity is a syncretistic religion, but that it has historically exhibited an

open-mindedness that we should not forget. It is this open-mindedness that makes possible overlapping consensus and a rapprochement with those who believe in different comprehensive religious (or philosophical) doctrines. Rawls is correct that from a political point of view faith is a choice, but it is equally correct to note that from at least some theological points of view a person of faith is chosen. Individuals who are integrated as a result of faith should show evidence of such integration by avoiding constant polemics. Uheir security comes from within, from their relation with God; they are not threatened by pluralism.’ Today especially, with the decline of the culture of Christendom that started

with St. Augustine, faith requires an inner life. It even seems fair to say that Christianity (and perhaps Judaism, Islam, and other religions, as well) in the longrun future will be spiritual or mystical or it will not be at all. (By “mysticism” here I do not mean the exotic or exceptional, but rather intimate experience of God as ubiquitous but seldom noticed.) To paraphrase Cardinal Newman, the world’s din is loud but God is still there. In any event, this spiritual Christianity (rather than

160 Epilogue a politically hegemonic one) is not an alternative form of Christianity, but Christianity itself (or religion itself, more generally) intensified. The obvious danger in spiritual or interior religion, rather than in politically hegemonic religion, is self-absorption, but this is a bastardization of truly integrating interiority. Political liberals who are religious believers cultivate an inwardness that leads to the other (or better, the Other).

Notes

INTRODUCTION 1. See Philip Quinn, “Political Liberalisms and Their Exclusions of the Religious,” Proceedings of the American Philosophical Association 69.2 (1995).

2. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), pp. xvii, xix, xxxit. Hereafter: PL. Also see Rawls’s The Law of Peoples (Cambridge: Harvard University Press, 1999). Hereafter: LP. 3. Ibid., pp. xvi-xix, Xxx—xxxil.

4. See Richard Rorty, “Taking Philosophy Seriously,” The New Republic (April 11, 1988), pp. 31-34. Cf, Claudia Mills, “Not a Mere Modus Vivendi,” in Victoria Davion and Clark Wolf, eds., The Idea of Political Liberalism (Lanham, Md.: Rowman and Littlefield, 2000), who thinks that religion is too easy an example to deal with in that race, gender, and ethnicity are what divide us now. She relies on Susan Moller Okin, “Political Liberalism, Justice, Gender,” Ethics 105 (1994). 5. See “Commonweal Interview with John Rawls,” in John Rawls, Collected Papers, ed. by Samuel Freeman (Cambridge: Harvard University Press, 1999). 6. Ibid., p. 620.

CHAPTER ONE: A BRIEF HISTORY 1. PL, p. xx. 2. Walter Burkert, Greek Religion (Cambridge: Harvard University Press,

1985). Also see LP, p. 29, where Rawls is clear that Athens was not a liberal democracy. 3. PL, pp. xxi—xxii.

4. Ibid., pp. xiv—xvi. It is also interesting to note that Catholic countries like

Spain, where there were no Protestant reformers, produced internal reform through figures like St. John of the Cross, who was a great defender of the ballot. See my Sz John of the Cross (Albany: State University of New York Press, 1992). 161

162 Notes to Chapter 1 5. PL, pp. xxvii—xxviil.

6. Ibid., pp. xxx-xxxi, li, 37.

7. See, e.g., the works of Ronald Dworkin, “The Foundations of Liberalism,” in The Tanner Lectures on Human Values (Salt Lake City: University of Utah Press, 1991), and Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986).

8. PL, pp. 134-135, 138. 9. Rawls relies here on J. W. Allen, 4 History of Political Thought in the

Sixteenth Century (London: Methuen, 1941); and Quentin Skinner, The Foundations of Modern Political Thought (Cambridge: Cambridge University Press, 1978). Also he cites Lord Acton, “The Protestant Theory of Persecution,” in The History of Freedom and Other Essays (London: Macmillan, 1907).

10. PL, pp. 148, 303. 11. Russell Hittinger, “John Rawls, Political Liberalism,” Review of Metaphysics 47 (1994).

12. See Declaration on Human Freedom (Dignitatis Humanae), in Walter Abbott, ed., The Documents of Vatican II (London: Geoffrey Chapman, 1966). Rawls returns to the political progress made in Catholicism in LP, pp. 21, 127, where he notes that in 1572 Pope Pius V celebrated the massacre of Huguenots, whereas in 1997 Pope John Paul II apologized for this massacre. 13. Cited in Abbott, The Documents of Vatican I, pp. 672-673. Also see Paul

Sigmund’s “Catholicism and Liberal Democracy” in R. Bruce Douglass and David Hollenbach, eds., Catholicism and Liberalism (Cambridge: Cambridge University Press, 1994). 14. See John Rawls, “The Idea of Public Reason Revisited,” The University of Chicago Law Review 64 (1997), pp. 771, 781, 796. 15. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 126-128. Hereafter: TJ.

16. Ibid., pp. 129, 195-196. 17. Ibid., p. 223. 18. Ibid., pp. xviii—xix, 3-4. Also see Rawls’s introduction to the paperback edition of PL (New York: Columbia University Press, 1996), pp. xxxix—xli, xlvii.

19. PL, pp. 36, 58. 20. Ibid., pp. 59-61, 140. See Norman Daniels, “Reflective Equilibrium and Justice as Political,” in Davion and Wolf, eds., The Idea of Political Liberalism, regarding this “double bookeeping,” which both protects agreement in the public domain as well as in the nonpublic domain, the latter because diverse political party affiliations need not be something that divides a religious congregation; see Daniels’s story regarding his rabbi. 21. PL, pp. 216-217, 267. 22. Michael Sandel, Liberalism and the Limits of Justice, 2nd ed. (Cambridge:

Cambridge University Press, 1998). Also see Stephen Mulhall and Adam Swift, Liberals and Communitarians (Oxford: Blackwell, 1992), p. 72.

Notes to Chapter 2 163 23. See remarks by R. Bruce Douglass in R. Bruce Douglass and David Hollenbach, eds., Catholicism and Liberalism, pp. 15, 109, 111-113, 123.

CHAPTER TWO: THE ORIGINAL POSITION 1. TJ, pp. 12, 14, 18-19. 2. Ibid., p. 159. Also see pp. 21, 33, 146-147, 587. 3. Ibid., pp. 167-168, 175-176, 186-187. 4. Ibid., pp. 206-209, 260. 5. Ibid., pp. 261-263, 288-289, 520. 6. Ibid., pp. 292-295, 297. 7. Ibid., pp. 516-519. 8. Ibid., pp. 584-586. 9. Ibid., p. 587. 10. Ronald Green, “Jewish Ethics and the Virtue of Humility,” Journal of Religious Ethics 1 (1973).

11. Harlan Beckley, “A Christian Affirmation of Rawls’s Idea of Justice as Fairness: Part I,” Journal of Religious Ethics 13 (1985), pp. 210-212. 12. Ibid., pp. 212-214. Further, William Galston seems premature in claim-

ing that Rawls’s thin notion of the good in the original position conflicts with what Jesus says about the relationship between wealth and the attainment of heaven. See his Justice and the Human Good (Chicago: University of Chicago Press, 1980), p. 114.

13. See John Howard Yoder, The Politics of Jesus (Grand Rapids, Mich.: Eerdmans, 1972). 14. In addition to The Politics of Jesus also see Yoder’s The Christian Witness to the State (Newton, Kansas: Faith and Life Press, 1964). Also see Beckley’s “A Christian Affirmation of Rawls’s Idea of Justice as Fairness: Part I,” p. 238. Jeffrey Stout is like Yoder when he criticizes Rawls for arbitrarily dismissing values of particular traditions: The Plight from Authority (Notre Dame: University of Notre Dame Press, 1981). (Although we will see that this misrepresents Rawls’s view.) Finally, James Gustafson agrees with Beckley that sufficient continuity exists between Christians and others to share a common justification of justice; see Can Ethics Be Christian? (Chicago: University of Chicago Press, 1975). 15. Beckley, “A Christian Affirmation of Rawls’s Idea of Justice as Fairness: Part I,” pp. 215-223. 16. Ibid., pp. 224-237. 17. Harlan Beckley, “A Christian Affirmation of Rawls’s Idea of Justice as Fairness: Part II,” Journal of Religious Ethics 14 (1986), pp. 229-231. Also see Gene Outka, Agape: An Ethical Analysis (New Haven: Yale University Press, 1972). 18. Beckley, “A Christian Affirmation of Rawls’s Idea of Justice as Fairness: Part II,” pp. 232-235. 19. Ibid., pp. 236-240.

164 Notes to Chapter 3 20. Ibid., pp. 241-245. Also see L. Gregory Jones, “Should Christians Affirm Rawls’ Justice as Fairness? A Response to Professor Beckley,” Journal of Religious Ethics 16 (1988), p. 257.

21. Jones, pp. 260-261, 263, 267-268. Also see, e.g., MacIntyre’s After Virtue, 2nd ed. (Notre Dame: University of Notre Dame Press, 1984). 22. On original sin see Langdon Gilkey’s classic Shantung Compound (New York: Harper and Row, 1966). Also see my “Starnes on Augustine’s Theory of Infancy,” Augustinian Studies 11 (1980).

23. See Jurgen Habermas, “Reconciliation Through the Public Use of Reason: Remarks on John Rawls’ Political Liberalism,” The Journal of Philosophy 92 (1995), pp. 111, 116. Also see John Rawls, “Reply to Habermas,” The Journal of Philosophy 92 (1995), pp. 139, 151-152.

24. PL, pp. 9, 22-23. 25. Ibid., pp. 24-28, 75, 103-104, 110, 273-274, 340. 26. See William Werpehowski, “Political Liberalism and Christian Ethics: A Review Discussion,” The Thomist 48 (1984), pp. 108-109, 114. Also see Werpehowski’s “Social Justice, Social Selves: John Rawls’s 4 Theory of Justice and Christian Ethics,” Ph.D. dissertation, Yale University, 1981. 27. See Michael Walzer, Spheres of Justice (New York: Basic Books, 1983), p. xiv.

28. See, for example, Dorothy Emmet, “Justice,” The Aristotelian Soctety: Supplementary Volume 43 (1969), pp. 124, 126, 133. Also see Norman Daniels, Reading Rawls (New York: Basic Books, 1974), p. xviii.

29. PL, p. 46; also pp. lx, 10, 44-45. 30. Timothy Jackson, “To Bedlam and Part Way Back: John Rawls and Christian Justice,” Faith and Philosophy 8 (1991), p. 427; also pp. 423-426, 428-431, 441. 31. Ibid., p. 440; also pp. 432-439, 441-442. 32. Ibid., pp. 443-444. Also see Jackson's “Love in a Liberal Society,” Journal of Religious Ethics 22 (1994). 33. See Mulhall and Swift, Liberals and Communitarians, p. 3.

34. TJ, pp. 136-142. 35. Ibid., p. 172. 36. TY, pp. 84, 113. 37. Ibid., pp. 84-86, 120, 197-200, 221, 229-232, 304, 353-359. 38. PL, pp. 72-73, 264, 285. 39. Rawls, “Reply to Habermas,” pp. 170-171, 174, 178.

40. Ibid., pp. 175-176, 179. 41. TJ, pp. 3-5, 7-8, 17, 94, 109.

CHAPTER THREE: THE REASONABLE AND THE RATIONAL 1. PL, pp. 5-6, 56. Also see TJ, pp. 14-15. 2. TJ, pp. 60-64, 75.

Notes to Chapter 3 165 3. Ibid., pp. 105-106, 152. 4. ‘TJ, pp. 153, 250, 303. 5. PL, pp. 181-182. Also see TJ, pp. 42-43, 110, 151, 244. 6. Here Rawls relies on Ernst Troeltsch, The Social Teaching of the Christian Churches, tr. by Olive Wyon (London: George Allen and Unwin, 1931). 7. See, for example, my “Plato’s “Noble’ Lie,” History of Political Thought 18 (1997).

8. TJ, pp. 547-548. 9. Ibid., pp. 154, 157-158, 285-287, 320. 10. PL, pp. 186, 229-230. 11. Ibid., pp. 270-271, 281-284. 12. Ibid., pp. 311-312, 337-338. 13. See Thomas Pogge, Realizing Rawls (Ithaca: Cornell University Press, 1989), pp. 109-110, 238. 14. Philippe Van Parijs, “Rawlsians, Christians and Patriots,” European Journal of Philosophy 1 (1993), pp. 328-329, 334. 15. Mulhall and Swift, Liberals and Communitarians, p. 60. Also see ‘TY, pp. 80, 82-83. 16. Paul Sigmund makes this very point in response to Philip Berryman. See Sigmund’s Liberation Theology at the Crossroads (New York: Oxford University Press, 1990), pp. 191-194; and Berryman’s Liberation Theology (New York: Pantheon, 1987), Chapter 7. Regarding Foucaultian (in addition to liberation theology) ignorance of liberal political philosophy see Lorraine Code, What Can She Know? Feminist Theory and the Construction of Knowledge (Ithaca: Cornell University Press, 1991), p. 78. 17. ‘TY, pp. 226-227. PL, pp. 166, 328. Also see Rawls, “Reply to Habermas,” p. 160.

18. See TJ, pp. 66-69, 71, on Rawls’ specific (Pareto-like) definition of efficiency.

19. See Norman Daniels, Reading Rawls, p. xxi. 20. PL, pp. 48-51, 54. 21. Ibid., pp. 55-57, 64, 119-120. 22. Ibid., pp. 302, 305. 23. Rawls, “Reply to Habermas,” pp. 149-150, 164. 24. TY, pp. 142-143, 395, 398, 408. 25. Ibid., pp. 409-411, 413-416. 26. Ibid., pp. 417-418, 420-421. 27. Ibid., p. 423. Also see Mulhall and Swift, Liberals and Communitartians, p. 123. 28. ‘TY, pp. 24-25, 30-32, 396. 29. Ibid., pp. 397, 446-447. 30. Ibid., pp. 447-449. 31. Ibid., pp. 450-451.

166 Notes to Chapter 3 32. Ibid., pp. 561-564, 566, 574. 33. Ibid., p. 174; also pp. 25, 38-39, 173. 34. Ibid., pp. 233, 340. Also see Rawls, “Reply to Habermas,” p. 157. 35. See Wolterstorff’s claims in Robert Audi and Nicholas Wolterstorff, Religion in the Public Square (Lanham, Md.: Rowman and Littlefield, 1997), pp. 69, 75, 77-79, 98-99, 109, 111-112, 148. 36. See Robert Audi’s claims in Audi and Wolterstorff, Religion in the Public Square, pp. 13, 16-17. 37. Ibid., pp. 21-25, 55, 124. 38. See Wolterstorff in Audi and Wolterstorff, Religion in the Public Square, p. 147.

39. See Audi in Audi and Wolterstorff, Religion in the Public Square, pp. 27-29, 33-34. 40. Ibid., pp. 49-50, 124, 128, 132. Also see LP, p. 113. 41. See Audi in Audi and Wolterstorff, Religion in the Public Square, pp. 134, 137, 139-141. Also see James Sterba, “Rawls and Religion,” in Davion and Wolf, eds., The Idea of Political Liberalism, regarding the possible reconciliation between Rawls-Audi, on the one hand, and Wolterstorff, on the other. 42. See Robert Neville, The Puritan Smile (Albany: State University of New York Press, 1987), pp. 145, 160. Also see MacIntyre, After Virtue, p. 233. Finally, Mulhall and Swift, Liberals and Communitarians, pp. 96, 99, 158. 43. See Stanley Hauerwas, 4 Community of Character: Toward a Constructive

Christian Ethic (Notre Dame: University of Notre Dame Press, 1981), pp. 1-2, 11-12, 72-86. Also, David Fletcher treats the allegation that Rawls’s view is too in-

dividualistic, indeed too egoistic, in “Christian Social Justice and Rawls’s Liberalism,” Christian Scholars Review 19 (1990). Finally, see Henry Clark, “Justice

as Fairness and Christian Ethics,” Soundings 56 (1973); and Ralph McInerney, “Some Marginalia on Wolterstorff,” Christian Scholars Review 16 (1987).

44. See Werpehowski, “Political Liberalism and Christian Ethics,” pp. 82-85, 104, 110-111. Also see Gilbert Meilaender, Friendship: A Study in Theological Ethics (Notre Dame: University of Notre Dame Press, 1981). 45. TJ, pp. 13, 135-136, 148. 46. Ibid., p. 148; also pp. 144-145, 147. 47. Ibid., p. 189; also pp. 149, 190-191. 48. Ibid., pp. 254, 281, 337-338. 49. Ibid., pp. 338-339, 455, 501. 50. See PL, pp. 17, 29, 50. Also see Allan Gibbard, “Constructing Justice,” Philosophy and Public Affairs 20 (1991).

51. PL, pp. 86, 105-107. 52. Ibid., pp. 262, 278-279, 335. Also see Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1977); and David Gauthier, Morals By Agreement (Oxford: Clarendon Press, 1986).

Notes to Chapter 4 167 53. See John Langan, “Overcoming the Divisiveness of Religion,” Journal of Religious Ethics 22 (1994), p.51. Also see Langan’s “Rawls, Nozick, and the Search for Social Justice,” Theological Studies 35 (1977). An author who is compatible with Langan is Stephen R. L. Clark, The Mysteries of Religion (Oxford: Blackwell, 1986), pp. 101-102, who argues that “Part of the confusion in twentieth-century moral theory is that respectable moralists are constantly groping for good reasons to adopt the rules and practices we have inherited from more religious ages. Filial duty, marital affection, patriotism, keeping one’s word cannot really be deduced from rationally self-evident principle.” Two other critics include Timothy Jackson,

“Love in a Liberal Society,” especially p. 35; and David Hollenbach, “Public Reason/Private Religion?,” Journal of Religious Ethics 22 (1994). Paul Weithman ably responds to all three critics in “Rawlsian Liberalism and the Privatization of Religion,” Journal of Religious Ethics 22 (1994), even if he too easily accepts the label “privatization.” 54. See Weithman, “Rawlsian Liberalism and the Privatization of Religion,” especially pp. 11-12, 19, 26. Cf., Richard Rorty’s “The Priority of Democracy to Philosophy,” in Merrill Peterson and Robert Vaughan, eds., The Virginia Statute for Religious Freedom (Cambridge: Cambridge University Press, 1988). Among religious believers who see Rawls as too individualistic, see Richard Fern, “Religious Belief in a Rawlsian Society,” Journal of Religious Ethics 15 (1987); as well as sev-

eral authors in Kenneth Grasso, ed., Catholicism, Liberalism, and Communitarianism (Lanham, Md.: Rowman and Littlefield, 1995): Kenneth Grasso, Francis Canavan, Michelle Watkins, Ralph McInerny, and Robert Hunt.

CHAPTER FOUR: THE ANCIENTS AND THE MODERNS 1. PL, pp. xliu-xlv, 77-78. 2. Ibid., pp. 99-101. 3. Ibid., pp. 102, 285-288, 306, 332, 334. 4. ‘TY, pp. vit, 11, 179-183. 5. Ibid., p. 252; also pp. 204, 251, 253. 6. Ibid., pp. 254-257. 7. See Mulhall and Swift, Liberals and Communitarians, pp. 43, 62, 124. Also see Rawls, “Reply to Habermas,” pp. 154-155; and “The Idea of Public Reason Revisited,” p. 778. 8. TJ, p. 167; also see pp. vii-vili, 28-29, 78, 163-164.

9. Ibid., pp. 184, 305, 324, 572-573. 10. Ibid., pp. 269-270.

11. See Jean Hampton, “The Common Faith of Liberalism,” Pacific Philosophical Quarterly 75 (1994), especially pp. 191, 214.

12. Ibid., pp. 194, 197. 13. Ibid., pp. 204-205.

168 Notes to Chapter 4 14. Ibid., p. 206. Also see LP, p. 124, where Rawls agrees with Madison that a variety of sects acts as a security against religious persecution. 15. ‘TJ, pp. 49-50, 52. 16. See Rawls, “Justice as Fairness,” The Philosophical Review 67 (April, 1958). Also see my “Process ‘Thought and the Liberalism-Communitarianism Debate: A Comparison with Rawls,” Process Studies 26 (1997). 17. See TJ, pp. 10-11, 25, 58-60, 237. Also see Mulhall and Swift, Liberals and Communitarians, p. 78. Rawls relies on W. F. R. Hardie, Aristotle’s Ethical

Theory (Oxford: Clarendon Press, 1968); and Gregory Vlastos, “Justice and Happiness in the Republic,” in Plato: A Collection of Critical Essays (Garden City, N.Y.: Doubleday, 1971), vol. 2. 18. ‘TJ, p. 243; also pp. 92-93. 19. Ibid., p. 325. Also see Nietzsche’s Untimely Meditations: Third Essay. Schopenhauer as Educator, section 6, cited in J. R. Hollingsdale, Nietzsche: The Man and His Philosophy (Baton Rouge: Louisiana State University Press, 1965), p. 127. 20. TY, pp. 326-329.

21. Ibid., pp. 330-332. 22. Ibid., pp. 424-428. 23. Ibid., pp. 428-433, 442. 24. See Anthony Kenny, “Happiness,” Proceedings of the Aristotelian Society 66 (1965-1966). 25. TY, pp. 550-551. 26. Ibid., p. 552.

27. See St. Ignatius of Loyola, The Spiritual Exercises (New York: Doubleday, 1964), First Week (“Principle and Foundation”) and Second Week (“Three Occasions When a Wise Choice Can Be Made’). 28. TY, p. 553.

29. See St. Thomas Aquinas, Summa Contra Gentiles (Notre Dame: University of Notre Dame Press, 1976), Book III, Ch. 25.

30. TJ, p. 554 (insert added). Also see Hittinger, “John Rawls, Political Liberalism,” p. 595. 31. ‘TY, pp. 555-556, 558.

32. Ibid., p. 560; also p. 571.

33. George Sher, Beyond Neutrality (Cambridge: Cambridge University Press, 1997), p. 17; also see pp. 9, 15, 31-32. 34. Ibid., p. 83; also see p. 74. 35. Ibid., p. 144.

36. PL, pp. 5, 299. Also see TJ, p. 201. See Benjamin Constant’s essay “Liberty of the Ancients Compared with that of the Moderns” (1819), in Benjamin Constant, Political Writings (Cambridge: Cambridge University Press, 1988). For a recent statement of the contrast, see Isaiah Berlin, “Iwo Concepts of Liberty,” in Four Essays on Liberty (Oxford: Oxford University Press, 1969).

Notes to Chapter 5 169 37. See Habermas, “Reconciliation Through the Public Use of Reason,” p. 127. Also see Rawls, “Reply to Habermas,” pp. 162-163, 168, 179. 38. TY, pp. 44, 310. 39. Ibid., pp. 311-312. 40. Ibid., pp. 313-315. 41. Ibid., pp. 444-445. 42. Ibid., pp. 530-534. 43. Ibid., pp. 537-538, 540-541. 44. Ibid., pp. 573-574. 45. PL, pp. 194-195, 200. 46. TJ, pp. 72-73. 47. Ibid., pp. 74-75, 100-101. 48. Ibid., pp. 102-103. On the Foucaultian left, once again see Code, What Can She Know?

49. TJ, pp. 107-108. 50. Ibid., pp. 278-279, 290-291. 51. Ibid., pp. 462-467. 52. Ibid., pp. 467-472. 53. Ibid., p. 474. 54. Ibid., pp. 473, 475-476. 55. Ibid., pp. 478-479, 481-482. 56. Ibid., p. 484. Also see PL, pp. 40-41. 57. PL, pp. 42-43, 136-137. 58. Ibid., pp. 146, 220-221. 59. Ibid., pp. 221-222, 261, 264-265, 277, 341, 369. 60. Mulhall and Swift, Liberals and Communitarians, p. 56. Also see Rawls, “The Idea of Public Reason Revisited,” pp. 768, 779. 61. Rawls, “The Idea of Public Reason Revisited,” p. 803. 62. TJ, pp. 490-491.

CHAPTER FIVE: THE COMMON GOOD 1. See John Cobb and Herman Daly, For the Common Good (Boston: Beacon Press, 1994). 2. See David Hollenbach, “Is Tolerance Enough?,” Conversations 13 (Spring, 1998), pp. 5-6. 3. See National Conference of Catholic Bishops, Economic Justice for All: Pastoral Letter on Catholic Soctal Teaching and the U.S. Economy (Washington, D.C.: U.S. Catholic Conference, 1986). 4. Hollenbach, “Is Tolerance Enough?,” p. 8; also pp. 7, 9. 5. Ibid., p. 10. Also see St. Thomas Aquinas, Summa Theologiae, Blackfriars ed. (New York: McGraw-Hill, 1972), 2a2ae, q. 58, a. 6.

170 Notes to Chapter 5 6. Hollenbach, “Is Tolerance Enough?,” pp. 11, 13. 7. See, for example, PL, pp. 50, 54, 116, 304-310. Also see TJ, 195, 222, 226, 243, 295, 354-357, 360, 363, 382-386, 492.

8. See David Hollenbach, “A Communitarian Reconstruction of Human Rights,” in Douglass and Hollenbach, eds., Catholicism and Liberalism, pp. 133-134.

9. Ibid., pp. 135-138, 143, 332, 335. Also see John Courtney Murray, The Problem of Religious Freedom (Westminster, Md.: Newman Press, 1965). Finally, see

Richard Rorty, “Postmodernist Bourgeois Liberalism,” in Robert Hollinger, ed., Hermeneutics and Praxis (Notre Dame: University of Notre Dame Press, 1985). 10. Louis Dupre, “The Common Good and the Open Society,” in Douglass and Hollenbach, eds., Catholicism and Liberalism, p. 185; also see pp. 172, 186.

11. See Mulhall and Swift, Liberals and Communitarians, p. xi. Also see Rawls, “The Idea of Public Reason Revisited,” pp. 768, 774-775. 12. See Jacques Maritain, Man and the State (Washington, D.C.: Catholic University of America Press, 1998). Also see John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980). 13. Rawls, “Uhe Idea of Public Reason Revisited,” p. 775. 14. TJ, pp. 97, 104, 112, 119, 240. Also see Daniel Brudney, “Community and Completion,” in Andrews Reath, ed., Reclaiming the History of Ethics: Essays for John Rawls (Cambridge: Cambridge University Press, 1997), who thinks that

communitarian or common good critiques of ‘IJ are misguided, but they are on the mark regarding PL. 15. TJ, p. 178. 16. Ibid., p. 225; also pp. 222, 224, 233. 17. Ibid., p. 246; also pp. 130, 242-243, 245, 258-259. 18. Ibid., p. 268; also pp. 264-267. 19. Ibid., p. 271. Also see Mark Blaug, Economic Theory in Retrospect (Homewood, IIL: Irwin, 1968). 20. ‘TJ, pp. 272, 274, 280. 21. Ibid., p. 523; also pp. 517, 524-525. Finally, see PL, pp. 204, 321. 22. TY, p. 526; also p. 527.

23. Ibid., pp. 528-529, 565. 24. PL, pp. 19-20, 98, 192. 25. Ibid., pp. 201, 304, 323. 26. See Walter Ong, “Response to Hollenbach,” Conversations 14 (Fall, 1998), pp. 43-44. 27. See Paul Sigmund, “Catholicism and Liberal Democracy,” in Douglass and Hollenbach, eds., Catholicism and Liberalism, p. 235. Sigmund relies on John Hallowell, The Moral Foundations of Democracy (New York: Cambridge University Press, 1954).

28. TY, pp. 399-400, 403-407. 29. Ibid., pp. 433-435, 437-440, 456. Also see PL, p. 308. 30. PL, pp. 30-31.

Notes to Chapter 6 171 31. Ibid., pp. 32-33, 74, 76, 79. 32. Ibid., pp. 85, 176-179, 187, 313. 33. Ibid., pp. 314, 316. 34. Ibid., pp. xix, 318, 334. 35. See TJ, pp. x, 192.

CHAPTER SIX: METHODOLOGICAL CONSIDERATIONS 1. TJ, p. 20. Also see PL, pp. xvii—xviii, 8.

2. TJ, p. 21. 3. Ibid., pp. 48, 577-578. 4. Ibid., pp. 580-581. 5. Ibid., pp. 582-583. 6. PL, pp. 89-95. 7. Ibid., pp. 97-98. 8. Ibid., pp. 108-109, 124, 259. Also see Norman Daniels, Reading Rawls, p. xxt; and Mulhall and Swift, Liberals and Communitarians, p. 195. 9. See Werpehowski, “Political Liberalism and Christian Ethics,” pp. 92-93. 10. Habermas, “Reconciliation Through the Public Use of Reason,” pp. 120, 123-124. Also see Rawls, “Reply to Habermas,” p. 141. Finally, see Mulhall and Swift, Liberals and Communitarians, pp. 59, 117, 245. 11. Rawls, “Reply to Habermas,” pp. 142-143. 12. Neville, The Puritan Smile, pp. 5-6.

13. See my “Process Thought and the Liberalism-Communitarianism Debate: A Comparison with Rawls,” pp. 15-32. 14. PL, p. 129; also see pp. 71, 126-127. 15. Habermas, “Reconciliation Through the Public Use of Reason,” p. 124. Also see Rawls, “Reply to Habermas,” pp. 132-138. 16. TJ, pp. 453-454. 17. Ibid., pp. 457-458. Also see Rawls, “Reply to Habermas,” pp. 146-147. 18. See Pogge, Realizing Rawls, p. 228. Also see PL, pp. 144-145, 147. Finally, see John Locke, 4 Letter Concerning Toleration (Indianapolis: Hackett, 1983). 19. PL, p. 152; also see pp. 150-151, 153. 20. Ibid., pp. 154, 158-159. 21. Ibid., p. 162; also see pp. 160-161, 163-165, 168. 22. Rawls, “Reply to Habermas,” pp. 144-145.

23. PL, pp. xl, 156-157. 24. Ibid., pp. 175, 292. 25. Ibid., pp. 188-189, 300-301, 329. 26. Ibid., pp. 330, 366-367. 27. See David Tracy, “Catholic Classics in American Liberal Culture,” in Douglass and Hollenbach, eds., Catholicism and Liberalism, pp. 196-197. 28. Mulhall and Swift, Liberals and Communitarians, p. 178; also see p. 54.

172 Notes to Chapter 6 29. See Werpehowski, “Political Liberalism and Christian Ethics,” pp. 101-102. Also see Karl Barth, Against the Stream (New York: Philosophical Library, 1954).

30. PL, pp. 12-14, 155. 31. Ibid., pp. 169-171. 32. Ibid., pp. 242-243. 33. See Rawls, “The Idea of Public Reason Revisited,” pp. 777-778. Also see

Kent Greenawalt, Private Consctences and Public Reason (Oxford: Oxford University Press, 1995) on where a political conception ends and where interpretation begins. 34. Rawls, “The Idea of Public Reason Revisited,” pp. 780-781. 35. Ibid., p. 782. Also see Abdullahi Ahmed An-Na'im, Toward an Islamic Reformation (Syracuse: Syracuse University Press, 1990). 36. Rawls, “The Idea of Public Reason Revisited,” pp. 782-783. 37. Ibid., p. 804; also see p. 786. Finally, see Immanuel Kant, Grounding for the Metaphysics of Morals (Indianapolis: Hackett, 1993). 38. Rawls, “The Idea of Public Reason Revisited,” p. 804. 39. Ibid., pp. 805-807. 40. PL, pp. 66-69. Also see TJ, pp. 16, 56, 234, 238-239. 41. See PL, pp. 80, 110-112, 116. Also see Thomas Nagel, The View from Nowhere (New York: Oxford University Press, 1986). 42. On the complex issue of how religion bears on public reason, see Kent

Greenawalt, Religious Convictions and Political Choice (New York: Oxford University Press, 1988), chapters 8, 12; Robert Audi, “The Separation of Church and State and the Obligations of Citizenship,” Philosophy and Public Affairs 18 (1989); Paul Weithman, “The Separation of Church and State,” Philosophy and Public Affairs 20 (1991), as well as Audi’s reply in the same issue; and Lawrence Solum, “Faith and Justice,” DePaul Law Review 39 (1990). 43. PL, pp. 213-215, 218, 224, 226. 44. Ibid., pp. 240-241, 244, 253. 45. See Rawls, “Reply to Habermas,” p. 140. Also see Rawls, “The Idea of Public Reason Revisited,” p. 766. 46. Rawls, “The Idea of Public Reason Revisited,” pp. 767-769. 47. Ibid., pp. 797, 800. 48. Ibid., p. 801. 49. Ibid., pp. 794-795. Also see Thomas Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (Oxford: Oxford University Press, 1986). 50. Rawls, “Che Idea of Public Reason Revisited,” pp. 796-797. Also see Alexis de Tocqueville, Democracy in America (New York: Perennial Library, 1988), pp. 294-301.

Notes to Chapter 8 173 CHAPTER SEVEN: THEORY TO PRACTICE 1. TJ, p. 220; also see pp. 216-217.

2. Ibid. 3. Ibid., p. 218. 4. Ibid., p. 219; also see pp. 220-221. 5. Ibid., p. 245. Also see LP, pp. 20-22, where Rawls indicates that Hitler’s demonic conception of the world was in a perverse way religious and that he capitalized on Protestant and Catholic anti-Semitism. 6. PL, pp. 196-197. Political liberalism could not tolerate, however, a religion like that of the Aztecs, who practiced human sacrifice. See LP, pp. 93-94. Another challenge is provided by certain right-wing, religious fundamentalists, as Michael Huemer notes in “Rawls'’s Problem of Stability,” Social Theory and Practice 22 (1996). 7. PL, p. 199. 8. See Lisa Sowle Cahill, “Toward a Christian Theory of Human Rights,” Journal of Religious Ethics 8 (1980), pp. 277-301. 9. See Werpehowski, “Political Liberalism and Christian Ethics,” p. 106; also pp. 99-100. 10. ‘TJ, pp. 199-200. 11. Ibid., pp. 276-277. 12. Ibid., pp. 282, 284. Also see PL, pp. 236-239, 298. 13. Rawls, “Reply to Habermas,” pp. 166, 172. Also see Bernard Dauenhauer,

“A Good Word for a Modus Vivendi,” in Davion and Wolf, eds., The Idea of Political Liberalism, who notes that a defensible separation of church and state does not have to be construed in the American sense, or better, in the ahistorical sense defended by Rawls. For example, in Finland, Iceland, Great Britain, Norway, and so on, there is a state religion p/us religious freedom. Finally, see LP, p. 65.

14. See Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958).

15. PL, pp. 205-206. 16. Ibid., pp. 15, 62-63, 180, 190. 17. Ibid., pp. 190, 296. Also see TJ, p. 203. Finally, Rawls cites Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (New York: Harper and Brothers, 1948).

CHAPTER EIGHT: PARTIALLY INCLUSIVE PUBLIC REASON 1. PL, pp. 342-343, 348, 351, 355-356, 365. 2. TJ, pp. 248-250. 3. PL, pp. lin-liv.

174 Notes to Chapter 8 4. See Rawls, “The Idea of Public Reason Revisited,” pp. 784-785. 5. See Stephen Macedo, “Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls,” Evhics 105 (1995), p. 470. 6. [bid., pp. 470-471. 7. Ibid., pp. 472-475. Also see John Dewey’s 4 Common Faith (New Haven: Yale University Press, 1934). 8. Macedo, “Liberal Civic Education and Religious Fundamentalism,” p. 477; also see p. 476.

9. Ibid., p. 480; also see pp. 478-479.

10. See Nomi Stolzenberg, “He Drew a Circle that Shut Me Out: Assimilation, Indoctrination, and the Paradox of Liberal Education,” Harvard Law Review 106 (1993), pp. 581-667. 11. See Macedo, “Liberal Civic Education and Religious Fundamentalism,” pp. 481-482. Also see Stephen Carter, “Evolutionism, Creationism, and Treating Religion as a Hobby,” Duke Law Journal (1987), pp. 977-996. 12. Macedo, “Liberal Civic Education and Religious Fundamentalism,” p. 485; also see pp. 483-484. 13. Ibid., p. 485.

14. Ibid., p. 489; also see pp. 486-488. Also see William Galston, “Iwo Concepts of Liberalism,” Ezhics 105 (1995).

15. Macedo, “Liberal Civic Education and Religious Fundamentalism,” p. 490; also see pp. 491-494. 16. Ibid., p. 495; also see p. 496. 17. William Galston, Liberal Purposes (Cambridge: Cambridge University Press, 1991), pp. 130, 147, 162.

18. Ibid., pp. 290-296. Also see LP, pp. 68, 87, on the fact that some churches are themselves democratic, some not; both can flourish in political liberalism, given reasonable restraints.

19. Galston, Liberal Purposes, pp. 296-300. Also see Stuart Hampshire, Innocence and Experience (Cambridge: Harvard University Press, 1989), p. 188. 20. Galston, Liberal Purposes, p. 304. 21. Charles Larmore, Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987), pp. 118-130. 22. The following diagram may help:

pure exclusivism + oF pure inclusivism partial inclusivism partial exclusivism (e.g., Rawls, etc.) —_(e.g., Quinn, etc.)

Notes to Chapter 9 175 23. Richard Rorty, “Religion as Conversation-Stopper,’ Common Knowledge 3 (1994), p. 3.

24. See Robert Audi, “The Place of Religious Argument in a Free and Democratic Society,” San Diego Law Review 30 (1993); also see Audi’s “The Separation of Church and State and the Obligations of Citizenship.” Finally, see PL, p. 247.

25. Audi, “The Separation of Church and State and the Obligations of Citizenship,” p. 296. Also see Quinn, “Political Liberalisms and Their Exclusions of the Religious,” pp. 36-37.

26. See Robert Audi and Nicholas Wolterstorff, Religion in the Public Square. Also see Audi's “The State, the Church, and the Citizen,” in Paul Weithman, ed., Religion and Contemporary Liberalism (Notre Dame: University of

Notre Dame Press, 1997). Some other views similar to Rawls’s are as follows: Charles Larmore, “Political Liberalism,” Political Theory 18 (1990); and Edward Foley, “Political Liberalism and Establishment Clause Jurisprudence,” Case Western Reserve Law Review 963 (1993), where it is clear that political liberalism is not neutral regarding comprehensive religious (or philosophical) doctrines that are unreasonable.

27. See Quinn, “Political Liberalisms and Their Exclusions of the Religious,” pp. 38-46. Also see Paul Weithman, ed., Religion and Contemporary Liberalism. Finally, see John Gray, “Against the New Liberalism,” Times Literary Supplement (July 3, 1992).

28. See David Smolin, “Regulating Religious and Cultural Conflict in Postmodern America,” Iowa Law Review 76 (1992); Michael Perry, Love and Power: The Role of Religion and Morality in American Politics (New York: Oxford

University Press, 1991); Robert M. Adams, “Religious Ethics in a Pluralistic Society,” in Gene Outka and John Reeder, eds., Prospects for a Common Morality (Princeton: Princeton University Press, 1993); and Sanford Levinson, “Religious Language and the Public Square,” Harvard Law Review 105 (1992).

29. Quinn, “Political Liberalisms and Their Exclusions of the Religious,” pp. 39, 47-49. Another view close to Quinn’s is that of Jeremy Waldron, “Religious Contributions in Public Deliberation,” San Diego Law Review 30 (1993).

30. See PL, pp. 247-249. 31. Audi and Wolterstorff, Religion in the Public Square, p. 107. 32. Michael Perry, Religion in Politics (New York: Oxford University Press, 1997), especially p. 58.

CHAPTER NINE: RACE, SEX, AND ABORTION 1. PL, p. lx; also see p. lxi.

2. Ibid., p. lit.

176 Notes to Chapter 9 3. See, for example, James McPherson, The Struggle for Equality (Princeton: Princeton University Press, 1964); and William Pease and Jane Pease, eds., The Antislavery Argument (New York: Bobbs-Merrill, 1965). 4. PL, pp. 249-250. Also see J. M. Washington, ed.,.4 Testament of Hope: The Essential Writings of Martin Luther King (San Francisco: Harper and Row, 1986), especially “Letter from Birmingham City Jail,” “Give Us the Ballot,” and “I Have a Dream.”

5. See PL, pp. 250-251. 6. Ibid., p. 252; also see p. 254.

7. Rawls, “The Idea of Public Reason Revisited,” p. 776; also see pp. 785-786, 802. 8. See PL, pp. Ix-lxi; TJ, pp. 99, 149, for example; and “The Idea of Public Reason Revisited,” p. 787. Also see the following: Susan Moller Okin, Justice,

Gender, and the Family (New York: Basic Books, 1989); Linda McClain, “‘Atomistic Mar’ Revisited: Liberalism, Connection, and Feminist Jurisprudence,” Southern California Law Review 1171 (1992); Martha Nussbaum, Sex and Social Justice (New York: Oxford University Press, 1998); and Sharon Lloyd, “Situating a Feminist Critique of John Rawls’s Political Liberalism,” Loyola of Los Angeles Law Review 1319 (1995). Finally, see LP, p. 110, where Rawls argues that the best way to combat overpopulation in poor countries is to enact equal justice for women.

9. See Rawls, “The Idea of Public Reason Revisited,” p. 780; also p. 788. Finally, see TJ, p. 331. 10. Rawls, “Uhe Idea of Public Reason Revisited,” p. 789.

11. Ibid., p. 792; also pp. 789-791. 12. Ibid., p. 792. 13. See my “St. Augustine, Abortion, and Libido Crudelis,” Journal of the History of Ideas 49 (1988); “Asymmetrical Relations, Identity, and Abortion,” Journal of Applied Philosophy 9 (1992); and a book coauthored with Robert Deltete, A Brief, Liberal, Catholic Defense of Abortion (Champaign: University of Illinois Press, 2000). Also see PL, p. lv.

14. PL, pp. 243-244. 15. Rawls, “The Idea of Public Reason Revisited,” p. 798. Rawls cites Judith Jarvis Thomson, “Abortion,” Boston Review 11 (Summer, 1995) rather than her more famous work on abortion. 16. Rawls, “The Idea of Public Reason Revisited,” pp. 798-799. 17. Once again, see my book defending abortion from a Catholic point of view. Also see Mario Cuomo, More Than Words: The Speeches of Mario Cuomo (New York: St. Martin’s, 1993); and John Courtney Murray, We Hold These Truths: Catholic Reflections on the American Proposition (New York: Sheed and Ward, 1960). 18. See Joseph Bernardin, “The Consistent Ethic,” Origins (Oct. 30, 1986). Also see Rawls, “The Idea of Public Reason Revisited,” p. 798.

Notes to Chapter 10 177 19. Charles Kelbley, “Rawls: From Moral to Political Theory,” International Philosophical Quarterly 36 (1996). 20. Quinn, “Political Liberalisms and Their Exclusions of the Religious,” p. 44; also see pp. 43, 53. Quinn cites favorably Peter de Marneftfe, “Rawls’s Idea of Public Reason,” Pacific Philosophical Quarterly 75 (1994); and Jean Hampton, “The Common Faith of Liberalism.”

21. See Audi’s remarks in Audi and Wolterstorff, Religion in the Public Square, pp. 29, 59, 170-171. 22. Sandel, Liberalism and the Limits of Justice, pp. 184-185, 196-197. 23. Ibid., pp. 198, 202, 212.

24. Ibid., p. 216. 25. Ibid., pp. 199-202, 212-216. 26. Ibid., pp. 202 ff. 27. Ibid., p. 210; also see pp. 203, 205, 207. 28. St. Thomas Aquinas, Summa Theologiae, 2a2ae, q. 11, a. 3. Also see Sandel, Liberalism and the Limits of Justice, p. 217.

CHAPTER TEN: WAR, DISOBEDIENCE, AND ELECTIONS 1. See my Christian Pacifism (Philadelphia: Temple University Press, 1991). 2. PL, p. 68. Also see Rawls, “The Idea of Public Reason Revisited,” p. 787. 3. Rawls, “Reply to Habermas,” p. 148; also see p. 149. 4. See Macedo, “Liberal Civic Education and Religious Fundamentalism,” p.

490. Also see Quinn, “Political Liberalisms and Their Exclusions of the Religious,” p. 46. See LP, pp. 94-95, 103-105, regarding Rawls’s views that we sometimes have a duty to fight in war, indicating that he agrees with Macedo, and that his view of war is like traditional Catholic just war theory, but without the natural law underpinnings. He relies especially on Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), but also on Saints Ambrose and Augustine as treated in Roland Bainton, Christian Attitudes toward War and Peace (Nashville: Abington Press, 1960); St. Thomas Aquinas, Summa Theologiae, 2a2ae, q. 40, a. 1-4; Francisco de Vitoria, “On the Law of War,” in Political Writings, ed. by A. Pagden and J. Lawrence (Cambridge: Cambridge University Press, 1991); Ralph Potter, War and Moral Discourse (Richmond: John Knox Press, 1969); and Doyne Dawson, The Origins of Western Warfare (Boulder: Westview, 1996). 5. ‘TJ, p. 364; also see pp. 363, 365-367. 6. Ibid., p. 385; also see pp. 372-373, 384.

7. Ibid., pp. 387-388. 8. Ibid., pp. 368-369. The issue of conscientious refusal (rather than civil disobedience) would arise for an opponent of abortion only if the state forced an opponent of abortion to have one. 9. Ibid., p. 370.

178 Notes to Chapter 11 10. Ibid., pp. 370-371. 11. See Paul Ramsey, War and the Christian Conscience (Durham, N.C.: Duke University Press, 1961). 12. ‘TJ, pp. 377-380. 13. Ibid., p. 382; also see p. 381. 14. See Walter Stein, ed., Nuclear Weapons and Christian Conscience (London:

Merlin, 1965), especially G. E. M. Anscombe, “War and Murder.” Also see my “Rawls and Thoreau on Civil Disobedience,” Thoreau Journal Quarterly 11 (1979). 15. See Wolterstorff in Audi and Wolterstorff, Religion in the Public Square, p. 80. 16. See IJ, pp. 277-278. Also see some practical suggestions along Rawlsian

lines in D. W. Haslett, “Is Inheritance Justified?,” in William Shaw and Vincent Barry, eds., Moral Issues in Business, 7th ed. (L.A.: Wadsworth, 1998). 17. ‘TJ, p. 226; also see pp. 275, 302. 18. PL, pp. lviti-lvix, 235, 328.

19. See Skelly Wright, “Political Speech and the Constitution: Is Money Speech?,” Yale Law Journal 85 (1976).

20. PL, pp. 357, 359-360. 21. See Rawls, “The Idea of Public Reason Revisited,” pp. 772-773. Also see Rawls, “Reply to Habermas,” p. 159. Finally, see LP, pp. 24, 50, 115. It should be noted, however, that too much restriction on economic liberty has a negative effect on religious liberty as well, as James Nickel argues in “Economic Liberties,” in Davion and Wolf, eds., The Idea of Political Liberalism.

22. See LP, pp. 72, 74-76. Also see Roy Mottahedeh, “Toward as Islamic Theory of Toleration,” Islamic Law Reform and Human Rights (Oslo: Nordic Human Rights Publications, 1993); and Bernard Lewis, The Middle East (New York: Scribner, 1995).

CHAPTER ELEVEN: ANIMALS AND MARGINAL CASES 1. TJ, p.17. Also see my Babies and Beasts: The Argument from Marginal Cases

(Champaign: University of Illinois Press, 1997). 2. TJ, pp. 504-505. 3. Ibid., p. 506. 4. Ibid., p. 507. 5. Ibid., pp. 508-509. 6. Ibid., pp. 510-511. 7. Ibid., p. 512. 8. Ibid., pp. 114-115; also see pp. 486-489. 9. [bid., pp. 115-117. 10. Rawls, “The Sense of Justice,” The Philosophical Review 72 (1963), p. 284.

Notes to Epilogue 179 11. ‘Tom Regan, “Duties to Animals: Rawls’ Dilemma,” Ezhics & Animals 2

(1981). Also see Regan’s The Case for Animal Rights (Berkeley: University of California Press, 1983). 12. Once again, see TY, p. 512. 13. See Alan Fuchs, “Duties to Animals: Rawls’ Alleged Dilemma,” Ethics & Animals 2 (1981). 14. See Donald Vandeveer, “Of Beasts, Persons, and the Original Position,” Monist 62 (1979).

15. Ibid., pp. 372-373. 16. ‘Tom Huffman, “Animals, Mental Defectives, and the Social Contract,” Between the Species 9 (1993), p. 22.

17. Ibid., p. 26. 18. See Lilly-Marlene Russow, “Animals in the Original Position,” Between the Species 8 (1992).

19. Steve Sapontzis, “On the Utility of Contracts,” Between the Species 8 (1992). 20. See Michael Pritchard and Wade Robison, “Justice and the Treatment of Animals: A Critique of Rawls,” Environmental Ethics 3 (1981); and Robert Elliot,

“Rawlsian Justice and non-Human Animals,” Journal of Applied Philosophy 1 (1984). Also see Mark Rowlands’s fine article, “Contractarianism and Animal Rights,” Journal of Applied Philosophy 14 (1997).

21. PL, pp. 20-21. 22. Ibid., pp. 21, 272. 23. Ibid., pp. 244-245. 24. Ibid., pp. 245-246. 25. In the enormous literature on animal rights and environmental ethics that has appeared since the publication of ‘TJ (including the work of Regan, et al.), Rawls only cites one study to support his anthropocentric view: Keith Thomas, Man and the Natural World (New York: Pantheon, 1983). 26. See my Hartshorne and the Metaphysics of Animal Rights (Albany: State University of New York Press, 1988); and Sz. John of the Cross, Chapter Four. Also see PL, p. 246. 27. TY, p. 403.

EPILOGUE 1. Alfred North Whitehead, Sczence and the Modern World (New York: Macmillan, 1925), “Religion and Science.” Also see his Religion in the Making (New York: Macmillan, 1926). On Whitehead as a liberal see Randall Morris, Process Philosophy and Political Ideology (Albany: State University of New York Press, 1991).

180 Notes to Epilogue 2. Franklin Gamwell, The Meaning of Religious Freedom (Albany: State University of New York Press, 1995), p. 49; also see pp. 55, 57, 67, 70, 72-73.

3. Ibid., p. 70. 4, This is a major theme in Religion in the Making. 5. Charles Hartshorne, Creativity in American Philosophy (Albany: State University of New York Press, 1984), p. 9. Or as Rawls puts the point in LP, p. 46,

we cannot change the will of God (with certain qualifications, even Hartshorne agrees), but we can change our political ideals.

6. In this and subsequent paragraphs I have benefited greatly from oral comments by Louis Dupre. 7. See my Analytic Theism, Hartshorne, and the Concept of God (Albany: State University of New York Press, 1996).

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INDEx or Names

Abraham, x, 32, 83 Canavan, Francis, 167 Acton, John, 162 Carter, Stephen, 110, 174

Adam, 24 Clark, Henry, 166

Adams, Robert M., 116, 175 Clark, Stephen R.L., 167

Allen, J.W., 162 Cobb, John, 69, 169

Ambrose, St., 177 Code, Lorraine, 165, 169 An-Na’im, Abdullahi Ahmed, 92, 172 Constant, Benjamin, 60, 168 Anscombe, G.E.M., 178 Constantine, 7 Archimedes, 15-16, 84 Cuomo, Mario, 128, 176 Arendt, Hannah, 106, 173 Curry, Thomas, 172 Aristotle, x, 5, 11, 21, 33, 38-39, 43,

54-58, 60-62, 66, 69-70, 77, 82, 106 Daly, Herman, 169 Audi, Robert, 36, 42-44, 114-116, 129, Daniels, Norman, 162, 164-165, 171

166, 172, 175,177 Dauenhauer, Bernard, 173

Augustine, St., 5,22, 70, 122, 126-127, Dawson, Doyne, 177

129, 131, 159, 164, 176-177 Descartes, Rene, 51 Dewey, John, 109-110, 174

Bainton, Roland, 177 Dostoevsky, Fyodor, 54

Barth, Karl, 90, 103, 172 Douglas, Stephen, 123, 132-133 Beckley, Harlan, 17-20, 163 Douglas, William O., 48 Berlin, Isaiah, 103, 168 Douglass, R. Bruce, 10-11, 25, 163 Bernardin, Joseph, 128, 176 Dupre, Louis, 72, 74, 170, 180

Berryman, Philip, 165 Dworkin, Ronald, 162 Blaug, Mark, 170

Brudney, Daniel, 170 Elliot, Robert, 151-152, 179

Buddha, 11, 57 Emmet, Dorothy, 164 Burkert, Walter, 3, 161 Epimetheus, 155 Eve, 24 Caesar, 25

Cahill, Lisa Sowle, 103, 173 Fern, Richard, 167 Calvin, John, 4-5, 8, 84, 119 Finnis, John, 73, 170 189

190 Index Fletcher, David, 166 Innocent III, Pope, 7

Foley, Edward, 175 Isaac, 84 Foucault, Michel, 35, 64, 165, 169

Friedman, Milton, 133-134 Jackson, Timothy, 24-26, 35, 48, 71, 164,

Fuchs, Alan, 148-149, 151, 179 167

Jefferson, Thomas, 52

Galston, William, 111-113, 163, 174 Jesus, 19, 25, 34, 51 Gamwell, Franklin, xii, 7, 158-159, 180 John of the Cross, St., 57, 161

Gauthier, David, 37, 47, 166 John XXIII, Pope, 103

Gibbard, Allan, 166 John Paul I, Pope, 70, 103, 162

Gilkey, Langdon, 164 Jones, L. Gregory, 21-22, 32, 164 Glaucon, 54

Goldmann, Lucien, 50 Kaczinski, Ted, 65

Grasso, Kenneth, 167 Kant, Immanuel, x, 5—6, 26, 43, 47, 49-53,

Gray, John, 116, 175 60, 71, 76, 82, 84, 88-89, 91-92, 110, Greenawalt, Kent, 95, 172 122, 146, 148, 172 Gregory IX, Pope, 7 Kelbley, Charles, 128-130, 132, 177 Green, Ronald, 17, 163 Kenny, Anthony, 168 Gustafson, James, 163 Keyes, Daniel, 150

King, Martin Luther, 114, 121-123, 127,

Habermas, Jurgen, 60, 84-86, 113, 164, 136

169,171 King, Rodney, 46

Hallowell, John, 170 Kristol, Irving, 113 Hampshire, Stuart, 174

Hampton, Jean, 52-53, 167, 177 Langan, John, 47-48, 167

Hardie, W.E-R., 168 Larmore, Charles, 113, 174-175 Hartshorne, Charles, 126, 159, 179-180 Lavoisier, Antoine, 155

Haslett, D.W., 178 Leibniz, Gottfried, 61

Hauerwas, Stanley, 23, 44, 166 Levinson, Sanford, 116, 175

Heidegger, Martin, xi Lewis, Bernard, 178 Henry, Patrick, 97 Lincoln, Abraham, 123, 132

Hitler, Adolph, 173 Lloyd, Sharon, 176

Hittinger, Russell, 6-8, 25, 32, 162, 168 Locke, John, 86, 171 Hobbes, Thomas, 6-7, 22, 36, 52, 54, 86, Luther, Martin, 4, 8, 11 88, 92, 103 Hollenbach, David, 48, 69-72, 75, 77,167, © Macbeth, Lady, 23

169-170 Macedo, Stephen, 108, 111-112, 136, 174,

Hollingsdale, J.R., 168 177

Homer, 4 MacIntyre, Alasdair, 21, 44, 164, 166 Huemer, Michael, 173 Madison, James, 97, 168

Huffman, Iom, 149-152, 179 Maritain, Jacques, 73, 170

Hume, David, 5, 14 Marnefte, Peter de, 177 Hunt, Robert, 167 Marx, Karl, 50, 85, 96 McClain, Linda, 176

Ignatius of Loyola, St., 1x, x11, 57, 168 McInerney, Ralph, 166-167

Index 191 McPherson, James, 176 Rorty, Richard, xi, 48, 71-72, 84-85, 114,

Meiklejohn, Alexander, 173 116, 161, 167, 170, 175

Meilaender, Gilbert, 166 Ross, W.D., 61

Mill, John Stuart, 6, 49, 88, 110, 124 Rowlands, Mark, 179

Mills, Claudia, 161 Royce, Josiah, 38

Mohammed, 92 Russow, Lilly-Marlene, 150-151, 179 Morris, Randall, 179

Mottahedeh, Roy, 178 Sandel, Michael, 11, 23, 44, 84, 90, 125, Mulhall, Stephen, 35, 44, 90, 162, 164-171 130-134, 162, 177 Murray, John Courtney, 8, 71, 128, 170, Sapontzis, Steve, 151, 179

176 Schopenhauer, Arthur, 47, 168 Servetus, 5, 84

Nagel, Thomas, 94, 172 Sher, George, 58-59, 86, 168 Neville, Robert, 44, 85, 166, 171 Sidgwick, Henry, 52

Newman, John Henry, 159 Sigmund, Paul, 77, 162, 165, 170

Nickel, James, 178 Skinner, Quentin, 162

Niebuhr, Reinhold, 19 Smolin, David, 116, 175 Nietzsche, Friedrich, 11, 39, 55, 168 Socrates, 3, 54, 122

Nozick, Robert, 47, 133, 166 Solum, Lawrence, 172

Nussbaum, Martha, 176 Starnes, Colin, 164 Stein, Walter, 139

Okin, Susan Moller, 161, 176 Sterba, James, 166

Ong, Walter, 77, 170 Stolzenberg, Nomi, 110, 174 Outka, Gene, 20, 163 Stout, Jeffrey, 20, 163 Suarez, Francisco, 94

Pareto, Vilfredo, 165 Swift, Adam, 35, 44, 90, 162, 164-171 Paul, St., 25, 78

Perry, Michael, 119-120, 175 Thomas Aquinas, St. 5, 24, 57, 61, 70, 71,

Petavius, 157 73, 96, 122, 126-127, 129, 131, 134,

Pius V, Pope, 162 146, 168-169, 177

Plato, 4-5, 24, 54, 96, 159, 165, 168 Thomas, Keith, 179 Pogge, Thomas, 34-35, 165, 171 Thomson, Judith Jarvis, 127, 176

Potter, Ralph, 177 Thoreau, Henry David, 178

Pritchard, Michael, 151-152, 179 Tocqueville, Alexis de, 97, 172

Prometheus, 155 Tracy, David, 89, 171

Pythagoras, 4 Troeltsch, Ernst, 165 Quinn, Philip, 96, 114-117, 120, 129-130, | Vandeveer, Donald, 148-152, 179

132, 161, 174-175, 177 Van Parijs, Philippe, 35, 165 Vitoria, Francisco de, 94, 177

Ramsey, Paul, 138, 178 Vlastos, Gregory, 168 Raz, Joseph, 162

Regan, Tom, 147-149, 151-152, 179 Waldron, Jeremy, 175

Robertson, Pat, 133 Walzer, Michael, 164, 177 Robison, Wade, 151-152, 179 Watkins, Michelle, 167

192 Index Weithman, Paul, 47, 167, 172 Wolterstorff, Nicholas, 36, 41-44, 86, Werpehowski, William, 23, 44-45, 104, 117-119, 139, 166, 175, 178

164, 166, 171-173 Wright, Skelly, 178

Whitehead, Alfred North, xi, 157-158,

179 Yoder, John Howard, 18-19, 163