The Authority of Virtue: Institutions and Character in the Good Society 9780367857431, 9781003015161

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The Authority of Virtue

This book provides a unified account of justice and the good life. It argues that the virtues of character require good institutions, while good institutions enable persons to live together virtuously. Although virtue ethics and political philosophy are rich and sophisticated philosophical traditions, there has been an unfortunate divergence, in theory and practice, between the virtues of character and the virtues of institutions. This book has two primary purposes. First, it reorients political philosophy around the concept of the good life. To do so, the author addresses the problem of political authority from a virtue ethics perspective. He also considers whether a political theory oriented around the good life is compatible with Rawls’s notion of reasonable pluralism. Second, the book explains the relationship between the virtues of institutions and the virtues of character. The author shows how good institutions support the development and exercise of the virtues of character, while examining specific virtues such as justice and friendship. The Authority of Virtue will appeal to scholars and advanced students working in ethics, social and political philosophy, ancient philosophy, and political theory. Tristan J. Rogers is Lecturer in the Department of Philosophy at California State University, Sacramento. He completed his PhD at the University of Arizona in 2017. His work also appears (or is forthcoming) in the Journal of the American Philosophical Association, Journal of Social Philosophy, and The Journal of Value Inquiry.

Routledge Studies in Ethics and Moral Theory

The Principle of Double Effect A History and Philosophical Defense David Černý Apologies and Moral Repair Rights, Duties, and Corrective Justice Andrew I. Cohen Kantian and Sidgwickian Ethics The Cosmos of Duty Above and the Moral Law Within Edited by Tyler Paytas and Tim Henning Cultivating Our Passionate Attachments Matthew J. Dennis Reason and Ethics The Case Against Objective Value Joel Marks Offense and Offensiveness A Philosophical Account Andrew Sneddon Virtue, Narrative, and Self Explorations of Character in the Philosophy of Mind and Action Edited by Joseph Ulatowksi and Liezl van Zyl The Authority of Virtue Institutions and Character in the Good Society Tristan J. Rogers For more information about this series, please visit: www.routledge.com/ Routledge-Studies-in-Ethics-and-Moral-Theory/book-series/SE0423

The Authority of Virtue Institutions and Character in the Good Society

Tristan J. Rogers

First published 2021 by Routledge 52 Vanderbilt Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Taylor & Francis The right of Tristan J. Rogers to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-0-367-85743-1 (hbk) ISBN: 978-1-003-01516-1 (ebk) Typeset in Sabon by Apex CoVantage, LLC

Contents

1

Preface

vi

Introduction

1

PART I

Living Well in a Political Community

15

2

Virtue and Political Authority

17

3

Living Well and the Fact of Reasonable Pluralism

39

PART II

The Role of Virtuous Persons in Good Institutions

61

4

Justice as Lawfulness

63

5

The Common Good of Political Friendship

84

PART III

The Role of Good Institutions in Living Well

105

6

The Constraining Role of Institutions in Living Well

107

7

The Formative Role of Institutions in Living Well

128

8

Conclusion

147

References Index

157 166

Preface

This book is a substantial reworking of my doctoral dissertation Virtue Politics, defended at the University of Arizona in the Summer of 2017 under the direction of Daniel C. Russell. I began thinking about virtue and politics as a graduate student in 2013, after taking an excellent seminar led by Dan on ancient conceptions of happiness in the Fall of 2012. I had initially come to Arizona to work on classical liberal themes in political philosophy. But my early encounters with ancient Greek and Roman ethics, coupled with a growing dissatisfaction with the status quo in political philosophy, led to the present synthesis. That dissatisfaction grew out of my belief that political philosophers, in their focus on ideal theories of justice and agnosticism about the good life, had lost touch with what really matters: the good life, virtue, and the existing institutions and culture that make such things possible. But it was initially unclear to me how these ideas related to the problems au courant in political philosophy, such as the problems of political authority and reasonable pluralism, and the question of the role of government and its relation to its citizens. The present work attempts to answer these questions first explored in my dissertation research. I worked on this project during what now seems like an extraordinary time in the recent political history of liberal democracies. I came to the United States in 2011 as a graduate student from Canada. As someone who cut his teeth on libertarianism vs. socialism debates about distributive justice, it was remarkable to witness in person the Occupy Wall Street protests, which followed the Tea Party movement I had only seen on television in Canada. But as the years passed, the economic debate seemed to give way to more fundamental divisions at the social and cultural level, culminating in Brexit and the election of Donald Trump in my final year as a graduate student. As I write, we are several months into the COVID-19 pandemic, and a few months from another presidential election. While I am a newcomer to America, I firmly believe that the good life, virtue, and our shared institutions and culture are the ideas that matter most in this moment. Although this book is based on a dissertation, the material has been significantly revised, recast, and reorganized. Early on in my writing I

Preface

vii

came across the sage advice that “a dissertation is not a book,” which I promptly copied down and posted on my desk. And so now likewise, this book is not a dissertation. Two chapters are based on previously published journal articles: “Virtue Ethics and Political Authority” (Journal of Social Philosophy), “Justice as Lawfulness” (Journal of the American Philosophical Association), and a précis article of the book titled “A Virtue Politics for Liberal Democracy” is forthcoming in The Journal of Value Inquiry. I thank, respectively, Wiley Blackwell, Cambridge University Press, and Springer Nature for allowing permission to reprint. Much of the material for the book was first presented at conferences over the years, including the American Philosophical Association Eastern Division Meeting in Philadelphia; the American Philosophical Association Pacific Division Meetings in Vancouver; the American Philosophical Association Central Division Meeting in Denver; the First Annual Conference of the Eudaimonia Institute at Wake Forest University; the Philosophy Department Lecture Series at California State University, Stanislaus; and the “To What End?” Conference at the University of Notre Dame. I am grateful to the commentators, fellow participants, and audiences at these events for their helpful comments and feedback. My philosophical debts to the greats will be obvious. But I would especially like to express my debt and gratitude to Rosalind Hursthouse, whom I do not know personally, but whose important work in virtue ethics stimulated and inspired much of what became this book. As a graduate student, I was fortunate to meet and befriend a former student of Professor Hursthouse’s, Jeremy Reid, who suggested I read her article “After Hume’s Justice,” which I have done many times since and learned a tremendous amount from. Personally, I would like to thank Daniel C. Russell, Julia Annas, David Schmidtz, and Fred Miller Jr. for their mentorship and guidance during my tenure as a graduate student. Their imprint on the final work is undeniable. Thank you to my fellow graduate students at the University of Arizona, including Mario Ivan Juárez-Garcia, John Proios, Sarah Raskoff, Jeremy Reid, Gregory Robson, Wes Siscoe, Chad van Schoelandt, and Bjorn Wastvedt, who read and/or commented on portions—either whole or in part—of what became the book. I also received valuable comments from Jennifer Baker, Christopher Freiman, Bill Glod, Michael Huemer, Mark LeBar, John Park, Ruby Shao, and Charlotte Thomas. Special thanks are due to James Caton, with whom I co-wrote a paper that never made it to publication, but inspired a chapter in the book; Katharina Nieswandt, who generously invited me to organize a conference with her on virtue and politics that was sadly canceled due to COVID-19; and Kyle Johannsen, who helped me put the initial proposal together. I would also like to express gratitude to my first philosophical mentors, Pablo Gilabert and Christine Sypnowich, who not only tolerated, but indulged my early

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philosophical ventures. Finally, I thank two anonymous reviewers from Routledge, whose comments greatly improved the final work. Thank you to the Philosophy Department at California State University, Sacramento for being my academic home for the year that I wrote the book, and especially the students for a stimulating and rewarding teaching experience. Most of the research for the book was conducted while I was a graduate student in the Department of Philosophy at the University of Arizona. Thank you to the faculty and staff, especially Connie Rosati and Sandra Kimball, whose continued support I appreciate greatly. My graduate research was also supported by the Institute for Humane Studies, whose ongoing financial and intellectual support was invaluable. Lastly, I would like to thank the staff at Routledge and my editor, Andrew Weckenmann, who believed in the project immediately and was supportive and encouraging along the way. This book was conceived and written during some big events in my life, which perhaps explains the many references throughout to marriage, children, and family. Thank you to my mother, Vivienne, and step-father, Nicolay, whose love, support, and occasional intellectual discussions I dearly appreciate. I also thank my wife’s parents, Angela and David, for their love and support. Thank you to the late Jeffrey Skosnik, who first encouraged me to pursue a philosophical career, and my late father, Gordon, who might have been surprised that his son became a philosopher. I owe the most gratitude to my wife, Schirin, whose love and patience give me the strength to strive for the virtues. The book is dedicated to her and our little daughter, Aurélia, whose auspicious birth coincided with the year in which I wrote the book. T.J.R. Sacramento, California June 2020

1

Introduction

I once asked my students for a “flashbulb memory,” which is a memory of an event so impactful and meaningful that you can remember where you were, who you were with, and what you were doing in photographic detail.1 Their unanimous choice: the 2016 American presidential election. This is my memory of election night: I remember going to dinner with a group of philosophy graduate students at a Mexican restaurant in Tucson, Arizona. We glanced expectantly at the TV screens, watching the returns while we ate our burritos. As we were leaving the restaurant, events started to take a turn, and I recall remarking to a fellow philosopher that the expected outcome would most likely prevail. Then, when I got home, and the improbable became reality, I, like everyone else, watched television and tried to make sense of it all. Flashbulb memories are less reliable than you might think. Human memory codes for narrative meaning, not photographic accuracy (did we really order burritos?—it doesn’t matter). As such, most flashbulb memories are reconstructed years later with little attention to factual details. But a flashbulb memory will preserve the perceived meaning of what happened. Indeed, in many cases, our very survival depends on it. So, setting aside the near universally felt experience of shock and surprise, what was the meaning of the events in 2016? To some, the outcome was a catastrophe for American democracy, brought about by the worst elements of American society: a reactionary guard of “deplorables,” who have little regard for facts, expertise, or institutional norms. But to others, the outcome was a triumph of American democracy, and more importantly, for the American people, who, at last, wrested control of the commanding heights of American politics and culture from a corrupt established elite. Without diminishing the narrative stakes, in an important sense it doesn’t matter which side is right because narratives cannot be vindicated on strictly factual grounds. Like flashbulb memories, we construct narratives for their meaning, not for a factual description of reality (though we often mistake the former for the latter). Hume was right: reason is the slave of the passions; and confirmation bias is everywhere. We fix on a narrative meaning before a thorough consideration of the facts, lest they

2

Introduction

undermine our most cherished beliefs about the world. After all, a strictly neutral description of the events of 2016 is that there was an unexpected, yet democratic result (given the Electoral College). So why all the fuss? Our problem is not so much that we lack a true narrative, but that we lack a shared narrative. And without a shared narrative, there can be no shared good, and no consensus about how best to move forward into the future together as one people. Even before the improbable events of 2016, for instance, political polarization in America was increasing, tearing apart friendships, relationships, and even families.2 It seems that, in our polarized world, even if there were a shared good, it becomes impossible to see. Accordingly, we have witnessed a steady decline in the public’s trust of major American institutions.3 Taken together, we face the combustible combination of mounting civil strife, amid decaying, dysfunctional institutions that were supposed to keep the worst excesses of human nature at bay. And it may not take much to ignite. Our situation resembles that of Thucydides’s striking description of the civil war in Corcyra: Society had become divided into two ideologically hostile camps, and each side viewed the other with suspicion. As for ending this state of affairs, no guarantee could be given that would be trusted, no oath sworn that people would fear to break; everyone had come to the conclusion that it was hopeless to expect a permanent settlement and so, instead of being able to feel confident in others, they devoted their energies to providing against being injured themselves.4

A Shared Good Is a shared good possible? One may cynically reply that while the ideal of a shared good may plausibly characterize the small and relatively homogenous society of an ancient Greek city-state, the task of modern politics is to moderate (not transcend) disagreement about the good in our complex and diverse global societies. Such has been the impetus behind much mainstream political philosophy, which seeks procedural rather than substantive agreement about the good. We agree about who gets to decide questions about the good, not about who has the best view of the good. Yet, as Aristotle argues, without some agreement about substantive matters, about justice and the good, it is unclear whether we can speak meaningfully about a political community, since all communities organize themselves around a set of ends, and plausibly, some ends must be higher than others.5 The necessity of a shared good for a good society is a basic assumption of ancient political philosophy. That assumption was also central to the thoughts of the American Founders, such as John Adams, who proclaimed that the American Constitution “was made only for a moral and religious people. It is wholly inadequate to the government of any other.”6 Given the Founders’ realism about human nature—summed up

Introduction

3

in James Madison’s Humean refrain, “If men were angels, no government would be necessary”—Adams cannot be appealing to an ideal of moral perfection, but rather a broad consensus about the good against which the ordinary moral flaws characteristic of human nature may be judged.7 Remarkably, the American ideal of a shared good survived—even thrived—well into the twentieth century. A post–World War I civics textbook, for instance, finds it fit to observe unashamedly that “just living in America does not make a person the ‘right kind of American.’. . . . Americans have to be made.”8 But what does it mean to be “the right kind of American,” and why specify American? Isn’t that a substantive rather than procedural question, a question about the good rather than procedural norms? That there is no consensus about questions of this sort, and indeed, that such questions are scarcely asked, explains, in part, the absence of a shared good in the current political climate. For without some story about who we are and where we are going, there can be no constructive agreement or even compromise about where better lies. Such incremental improvements do not require an ideal of justice either. As Amartya Sen puts it, in contrasting his comparative with the Rawlsian transcendental approach to justice, “if we are trying to choose between a Picasso and a Dali, it is of no help to invoke a diagnosis . . . that the ideal picture in the world is the Mona Lisa.”9 But nevertheless, “better” and “worse” are judgments relative to some conception of the good. We need not have the exact same destination to agree that we are headed in the right or wrong direction. When and why did this narrative disconnect occur? Plausibly, the bloody history of the twentieth century, and the failure of ordinary people to prevent it, contributed to a general pessimism about the sufficiency of a shared good to stand as a bulwark to egregious abuses of political authority. The postwar prosperity of the 1950s and the broad (even if dull) moral consensus it established also kept the temperature low, allowing the “live and let live” ethos of the 1960s —the inevitable backlash against the conformist 1950s. But despite its energy, that ethos gradually degenerated, as the horrors of the Vietnam War and the indignities exposed (and repudiated) by the Civil Rights Movement spawned a general rebellion against all authorities: social, political, and religious. In subsequent decades, as the Cold War drew down, a new “culture war” reigned supreme, a war waged over divisive issues, such as abortion, economic justice, religion, sexual mores, and other “moral matters” that philosophers file under “applied” ethics.10 The culture war has rendered talk of virtue and the good life seem as obsolete and repugnant as the worst prejudices of the ancient philosophers who championed them, lest we forget that Aristotle argued for the morality of slavery, even while the Stoics later opposed it.11 Accordingly, subsequent moral philosophy became about managing conflict and disagreement among a plurality of moral views, not about seeking consensus about how we should live well together.

4

Introduction

Justice, Virtue, and the Good Life Virtue and the good life have also fared poorly in the realm of contemporary political philosophy. The virtues of character dominated ancient political philosophy, which assumed that ethics and politics were continuous, not discrete subjects. “For centuries,” writes Onora O’Neill, “both popular and philosophical writing accepted not only that good characters are vulnerable without good laws, but also that justice alone cannot guide human life, in which good laws must be buttressed by good characters.”12 Despite this rich tradition, in a period roughly coterminous with the resurgence of virtue ethics in moral philosophy, political philosophers, following the towering influence of John Rawls, mostly ignored the virtues of character, thereby pushing discussions of the good life to the periphery of political philosophy. Instead, political philosophers have largely focused on what institutional justice requires in a modern pluralistic society. Justice may be, as Rawls put it, “the first virtue of social institutions,” but political philosophers since Rawls have treated justice as if it were the only virtue, and so we have heard very little lately about politics and the virtues of character.13 Although contemporary virtue ethics and political philosophy are rich and sophisticated areas of philosophical study, this divergence, in theory and practice, between the virtues of character and the virtues of institutions, has been unfortunate. First, virtue theorists, for the most part, have not explored the political aspects and implications of the virtues of character.14 This has led to an ideal understanding of virtue that is unmoored from the practical reality of the institutions within which virtue must develop. We see too, as I have observed, a pessimism in public discourse about the possibility of maintaining shared ideals of virtue and the good life amid the mounting political and cultural battles within pluralistic liberal democracies. After all, what is virtue but another thing to disagree about? As a result, virtue theory might as well speak in the dead languages of its great ancient forbearers, for so few these days speak the language of the virtues. Meanwhile, political philosophers have failed to appreciate the ways in which the virtues of institutions intersect with (and as I will argue, depend on) the virtues of character and the good life. A well-ordered society is much more than “a cooperative venture for mutual advantage.”15 The polis, as Aristotle puts it, “comes to be for the sake of living, but it remains in existence for the sake of living well.”16 As such, a political community necessarily orients itself (whether explicitly or implicitly) around the pursuit of some conception(s) of the good life. This neglect of the good life has left us with a multitude of sophisticated, demanding, comprehensive, and yet basically unrecognizable theories of justice. Political philosophers have failed to win the hearts and minds of a public who do not see the good life reflected in their philosophical visions of the

Introduction

5

just society. It turns out that justice, like the good, is just another thing about which to disagree. What we need is a unified account of justice and the good life. We need a return to the ancient emphasis on justice and virtue, that is, the virtues of institutions and the virtues of character. Only then can we begin to grapple with the challenge of trying to live well in a political society, whose goodness ultimately depends on the goodness of its citizens. This book is about reunifying the virtues of character and the virtues of institutions. The book has two purposes. The first is to reestablish virtue and the good life as central concepts in political philosophy. The second purpose is to explain the relationship between the virtues of institutions and the virtues of character. In what follows, I describe the three core problems addressed by the book and how I plan to address them. Daniel C. Russell observes that “[i]t is no small thing to shift from ethics to politics . . . in part because the things being appraised—institutions instead of actions—are so different, but also because the state is by its nature coercive.”17 Russell’s observation invites reflection on the problem of political authority, which is whether the political state has the moral authority to coerce its inhabitants and whether its inhabitants have a corresponding moral obligation to obey the law.18 This fundamental problem in political philosophy gained prominence in the work of the modern social contract theorists such as John Locke and Jean-Jacques Rousseau.19 But, as Mark LeBar observes, the problem “has a centrality for us [moderns] that it did not have for ancient virtue ethicists.”20 Thus, our first problem regards (at least) political authority, a problem which, in any case, underlies much else that is interesting and important in political philosophy. So, we will ask: Is a virtuous person morally obligated to obey political authority? Or is there something incompatible about the demands of political authority and the demands of virtue? The second problem centers on whether a virtue ethical approach to political philosophy speaks relevantly and authoritatively to pluralistic liberal societies. I call this the problem of pluralism. Philosophers like Charles Larmore, for instance, have argued that the conditions of modernity present an obstacle for any theory of politics grounded in a conception of the good.21 For modernity is characterized by free and open societies, where free and equal citizens are given broad latitude to define the good life for themselves. Yet a virtue ethicist such as Aristotle, in his account of the ideal state, goes so far as to prescribe what music will be permitted there.22 The nexus of this concern is what Rawls calls “the fact of reasonable pluralism—the fact that a plurality of conflicting reasonable comprehensive doctrines, religious, philosophical, and moral, is the normal result of its [a democracy’s] culture of free institutions.”23 Given this general critique, we will ask: Is virtue ethics compatible with modern political assumptions? Is “neo-Aristotelian virtue ethics,” as Gerald Gaus claims,“a rejection of modernity rather than a solution to its problems”?24

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Introduction

The third, and final problem is what I call the problem of unification. The problem of unification is to determine the relationship between the virtues of institutions and the virtues of character in a good society. For instance, is it not a premise of liberal democratic institutions that the good life must be autonomously chosen? On the one hand, since, as I will argue, political institutions make possible the good life, it is natural to suppose that the good life will be of special concern to political institutions. But on the other hand, because the good life is to some extent dependent on individual choice, coercive political institutions may undermine the self-directed choices persons make about the good life. Further, it is unclear what obligations persons have for maintaining the institutions which are a precondition for their good. The idea that the good life is (a) the proper aim of good institutions and (b) in part, determined by individual choice, does not obviate the need for individual (and collective) responsibility for the stability of a good society. So understood, the problem of unification seeks clarity on two questions: (a) what role do institutions have in living well? and (b) what role do virtuous persons have in good institutions? How should these problems be addressed? First, in response to the problem of political authority, I describe the relationship between the virtues of institutions and the virtues of character in reciprocal terms: citizens have political obligations in virtue of their social role as members of the same political community, while institutions are good to the extent that they enable persons to develop and exercise the virtues of character. This is the relationship Aristotle called “reciprocal equality,” that is, the political arrangement according to which citizens take turns ruling and being ruled.25 In a liberal democracy, this means both civic participation and adherence to the institutional and social norms that make civic participation possible. In other words, the good life is made possible by the good society, and the good society requires that citizens develop and the exercise the virtues of character. There is, then, no tension between the demands of political authority and the demands of virtue. Political authority is a necessary precondition for virtuous agency. The virtues of character require an institutional context in which virtue develops, and such a context is partially defined by the institutional fact of political authority. How should virtue and the good life be understood for the purposes of liberal democratic politics? In response to the problem of pluralism, I draw a distinction between the concept of the good life (eudaimonia or “happiness”) and different conceptions of the good life. This is the same distinction Rawls makes with respect to the concept of justice and different conceptions of justice.26 The concept of the good life is defined by certain formal constraints identified by Aristotle in Book One of the Nicomachean Ethics, for example, that the good life is within a person’s control. A conception of the good life, in contrast, is some substantive specification of the good life, for instance, that it requires good health or adequate material resources.

Introduction

7

I use this distinction to develop an intermediate view whereby the good life emerges as part of each person’s attempt to engage well with their socially and culturally embedded circumstances. Virtue is the practical skill of living well. This view is intended to ward off worries about reasonable pluralism, and in fact, I argue, shows that a kind of ethical consensus about the good life—ultimately grounded in a political tradition—is a precondition for a stable liberal democracy. A broad ethical consensus makes a pluralistic society possible. But given each person’s divergent and unique circumstances, virtuous activity may be differently realized in different kinds of lives. In this way, we always act in the roles of citizen, employee, sibling, friend, and so on. Our ethical perspective takes the form of what F.H. Bradley calls “My Station and Its Duties,” in fulfilling what Michael O. Hardimon calls our “role obligations.”27 We are socially embedded beings whose ends are constrained by where we begin and the social roles we play. Such roles are the moral soil from which virtuous action takes root. What role do virtuous persons have in good institutions? In response to the first half of the problem of unification, I focus on two virtues of character: justice and friendship. An important issue here is the relationship between just persons and just institutions. Mark LeBar, for instance, distinguishes a “structural view,” according to which just persons are defined derivatively in terms of what is required by just institutions, and a “compositional view,” which inverts the relationship, defining just institutions in terms of the just person.28 I join LeBar in defense of the compositional view, while developing a rival conception of justice as a virtue of character I call “justice as lawfulness.”29 Justice as lawfulness requires that persons have a disposition to act in accordance with the legal and social norms of an existing political community while exercising practical wisdom to change such norms (when necessary and expedient) to serve the common good. Justice, then, is not a utopian ideal dreamed up by philosophers, but rather the virtue of character that allows persons to maintain and incrementally improve their institutions for the sake of living well together. I also argue that just persons are guided by a sense of friendship I call “political friendship.” I develop this idea into a conception of the common good, consisting in the shared norms and institutions of a bounded political society. Properly virtuous citizens relate to each other as equal members of a shared political community. The common good, then, is not some good over and above the good of individuals, but the way in which each person pursues the good in concert with fellow citizens. The common good is an indirect or emergent good. This allows us to share the same political community, and disagree about questions of the good life, without jeopardizing the kind of society that makes a good life possible for all. The second half of the problem of unification is to specify how institutions “enable” the good life, that is, how do good institutions support the virtues of living well? The chief competitors to my view are Martha

8

Introduction

Nussbaum’s capabilities approach to distributive justice and Douglas Rasmussen and Douglas Den Uyl’s neo-Aristotelian conception of classical liberalism.30 Each of these approaches, as I argue, fails to do justice to one of two important aspects of the role of political institutions in the good life. The first is what I call the “constraining role.” This is the sense in which institutions (and the rights claims they protect) serve as constraints on individual actions. The freedom of religious practice, for instance, protects individual conscience in reaching conclusions about the highest good. Institutional constraints enable each person to exercise practical wisdom to make good use of their lives. The second role is what I call “the formative role.” This role recognizes that practical wisdom does not exist in a vacuum but requires habitual development, which takes place in the family, school, the workplace, and so on. Political institutions have a responsibility to maintain these mediating institutions that order social life at the local level. In brief, the constraining role protects the exercise of practical wisdom, while the formative role ensures its proper development. Before proceeding to an overview of the chapter contents, I mention here some brief comments on method. Since Rawls, political philosophers have tended to follow the method of reflective equilibrium. In evaluating a theory, we work from both ends, as it were, developing the theory, then checking it against our considered judgments or intuitions, and vice versa. Thus, if a theory issues a claim that is counterintuitive, we might decide to revise the theory. Or a considered judgment can be reevaluated in light of a sufficiently compelling theory. Interestingly, Rawls himself traces the method of reflective equilibrium back to Aristotle.31 Presumably this is because Aristotle often begins with the endoxa or reputable opinions of his time, subjecting them to critical scrutiny while allowing them weight in his theoretical discussions.32 But Aristotle avoids thoroughly undermining our most considered judgments. He does not seem to have agreed with Bertrand Russell that “the point of philosophy is to start with something so simple as not to seem worth stating, and to end with something so paradoxical that no one will believe it.”33 Despite its apparent Aristotelian pedigree, I do not follow the method of reflective equilibrium. Rather than presenting a theory that can be revised or rejected in light of intuitions and counterexamples, I follow Julia Annas in adopting a holistic account whereby virtue and the good life are central but not the foundation in the modern sense of grounding the theory.34 This should already be clear, as I have proposed to understand the virtues of character and their relation to the virtues of institutions such that virtue itself could not be foundational in a sense separable from institutions. For this reason, the virtue politics account I defend should be evaluated holistically. Each part plays an important though potentially separable and/or replaceable role. The holistic method is nicely illustrated by David Schmidtz’s metaphor that theories are maps.35 Maps help us understand geographical space by

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9

representing terrain in such a way that enables us to accomplish different ends depending on our purposes. More generally, of course, maps are tools. We use tools in order to do things, but each tool is only capable of a limited number of uses. There is no master tool that does everything. An account of the complex phenomena of politics must, then, be nothing more than another tool that functions to serve our ends. We theorize to increase our understanding, but this is ultimately dependent on our purposes, and unless we are philosophers, our purposes are usually quite distant from philosophical theorizing.

Overview Part I, which comprises Chapters 2 and 3, addresses the relationship between virtue and politics. The goal of Part I is to reestablish the authority of virtue and the good life in political philosophy as central concepts, as opposed to the now dominant view that institutions and justice are central. I divide this task into two parts. The first is to show that political authority is not incompatible with the demands of virtue. Rather, I argue, political institutions are a necessary precondition for virtuous activity. The second part is to show that the fact of reasonable pluralism is not incompatible with the neo-Aristotelian claim that the political community exists for the sake of the good life. On the contrary, I argue that pluralism is made possible by an ethical consensus about the good life. Can the demands of political authority be reconciled with the demands of virtue? Chapter 2 defends the claim that political authority is a necessary precondition for virtuous agency. Political institutions are morally justified because they enable persons to live well. I begin with a general discussion of eudaimonist virtue ethics, explaining virtue as a practical skill that one exercises within one’s socially embedded circumstances. Political authority exists within this context. But this sets up a problem, which is that the characteristically coercive nature of political authority seems to conflict with the demands of virtue as a function of choice. My response begins by showing that the idea of authority is presupposed in moral experience. I then explain how this presupposition morally justifies political authority for its role in virtuous agency, thereby reconciling virtue and politics. Is a virtue ethical account of political authority compatible with pluralism? Yes, and Chapter 3 defends a surprising stronger claim: not only is my view compatible with pluralism, an ethical consensus about the good life is a precondition for the very possibility of pluralism. Only by sharing a political community with a common set of beliefs, institutions, practices, and norms is it possible for there to exist a sphere within which pluralistic conceptions of the good may flourish without civil strife. I begin with what I call “the Aristotelian Idea,” which is the claim that the political community exists for the sake of living well. But this view,

10

Introduction

because it appears to depend on an agreement about the good life, seems to run into what Rawls called “the fact of reasonable pluralism.” My response to the problem of pluralism takes two forms. First, I argue that pluralism untethered to a consensus about the good comes with an unacknowledged cost—the tendency for liberal pluralism to fragment and devolve into warring illiberal factions. Second, I argue that reasonable pluralism presupposes a “people,” connected to membership in a political community, which supports a consensus about views of the good that is necessary for the stability of liberal democracy. Part II examines the first half of the problem of unification: the role virtuous persons have in maintaining and promoting good institutions. Chapters 4 and 5 develop novel conceptions of two virtues of character: justice and friendship, both of which invoke the good of another person. Justice establishes what persons are due and so limits the ways in which persons may treat each other through their institutions. I connect friendship to the issue of the common good, which is whether there is a good common to all citizens that institutions should serve. Broadly speaking, Chapter 4 is concerned with the issue of stability, which is to say how virtuous persons maintain their institutions, while Chapter 5 is concerned with forward-looking matters, which is to say how virtuous persons reform and improve their institutions by serving the common good. Chapter 4 develops a conception of justice as a virtue of character, both as a rival to the very many conceptions of justice as an institutional virtue in contemporary political philosophy and as a rival to a recent view defended by Mark LeBar.36 The view I defend, “justice as lawfulness,” locates the character virtue of justice in the disposition of just persons to act in accordance with the legal and social norms (collectively, the nomoi) of an existing political tradition. Just institutions are thus composed of the relations between just persons who are law-abiding. Finally, the just person, in addition to upholding the nomoi, also acts with practical wisdom to reform the nomoi according to the moral standards implicit in an existing political tradition. In this sense, I argue, the just person achieves a mean between stability and change by working to reform bad laws in a way that does not upset the order furnished by an enduring political tradition. Institutions, as I will argue, are constrained by just persons. But we should also inquire about what it would mean for political authority to be used well, that is, what common good does political authority serve? Because of the fact of reasonable pluralism, it cannot aim at the individual good of each person, which raises the question of whether there is a common good that is the proper aim of political authority. Chapter 5 develops an indirect conception of the common good as the shared social condition we inhabit as members of the same political community. Such a view maintains the possibility of pluralism while ensuring that persons can identify their own good with the good of society. I call this conception

Introduction

11

“political friendship.” The chapter begins by deepening the sense in which living well is profoundly social and continues to consider the relationship between justice and community. Ultimately, I conclude that justice and community are best understood in relation to the affinities between justice and friendship, which are amply explored by Aristotle. I also offer an account of how the common good makes possible the kind of liberty that is properly valued in a free society, that is, ordered liberty, or freedom that is used well or virtuously. Part III, which comprises Chapters 6 and 7, turns to the second half of the problem of unification, which seeks to understand the role of good institutions in the virtues of character. Drawing on the conception of the good life developed in earlier chapters, I propose two roles for institutions in living well. The first recognizes the sense in which living well requires practical wisdom, itself a function of self-directed choice, and advocates for institutions that have historically and empirically proven capable of protecting and expanding this capacity. I call this “the constraining role.” The second role recognizes the fact that virtue first must develop in the institutions of civil society such as the family and advocates for the flourishing of these institutions to balance the authority of political institutions. I call this “the formative role.” Can political institutions support living well while respecting people’s choices? Chapter 6 explores the idea of constraints on individual action inherent to living well as a social enterprise. The idea is that the adoption of an end implies constraints, both on oneself and on the part of others who might disrupt the pursuit of the end. I use this idea to develop a theory of rights as interpersonal constraints that emerge from well-functioning institutions, that is, institutions functionally related to living well. Rights are claims that persons have in virtue of their participation in social practices that function to enable us to live well together. Rights are not inputs that antecedently constrain institutional justice. Rather, rights are the outputs of institutions that are just because they enable us to live well. I reach this view by first considering rival neo-Aristotelian accounts of the role of political institutions in living well: Nussbaum’s capabilities approach, and Rasmussen and Den Uyl’s classical liberal defense of Lockean rights. Building on important work by Rosalind Hursthouse, the chapter combines a conventionalist view of rights with Aristotelian functionalism, taking a middle course between natural rights theory and pure conventionalism about rights.37 Chapter 7 takes seriously Aristotle’s claim that we develop virtue by habitual practice, without embracing Aristotle’s premodern proposal of an overly intrusive state. In doing so, I defend the claim that the social institutions of civil society are critical for a political community that enables us to live well. Persons learn and develop their capacity for practical wisdom in the contexts of civic life, the family, education, work, and local communities. We become practically wise as citizens, parents, students,

12

Introduction

employees,  and so on. Thus, good political institutions—speaking narrowly—are necessary, but not sufficient for a good society. Paraphrasing Hursthouse, liberal rights may be sufficient for a just society, but they are insufficient for a good society.38 A truly just society is not a wicked society; its members must be virtuous. The chapter begins by heeding Alexis de Tocqueville’s classic warning about a “soft despotism” that threatens democracies, and continues, considering the ways in which virtue is nourished in the institutions of the family, the workplace, and community.39 While such institutions are sources of authority that rival the political state, I conclude that political institutions, because of their role in coordinating social institutions, should primarily function to maintain a healthy equilibrium. Chapter 8, the concluding chapter, briefly restates the virtue politics account and considers its scope and limitations. I also apply the account to some recent debates in political philosophy to show the advantages of thinking outside of the long-dominant Rawlsian paradigm. More importantly, I elaborate further on how the philosophical insights of the book might illuminate the politics of liberal democracies. Only by returning to our inheritance of the ancient tradition of justice and virtue, I claim, is it possible to maintain our societies in the face of the social, economic, and technological challenges of this age. As we navigate these challenges, there is an urgent need for new work in political philosophy that takes seriously the ancient wisdom of eudaimonist virtue ethics. We must fill what Hursthouse called “[a]n obvious gap” in her seminal treatment of virtue ethics, namely, “the topic of justice, both as a personal virtue and as the central topic in political philosophy.”40 In a similar vein, Hursthouse and Glen Pettigrove speculate that “[w]hether virtue ethics can be expected to grow into ‘virtue politics’—i.e. to extend from moral philosophy into political philosophy—is not so clear.”41 It is the aim of this book to not only bridge this divide, but show the necessity of doing so. Only then can we reestablish the authority of virtue and begin to mend the institutions and characters of our broken societies.

Notes 1. I follow here Christopher Chabris and Daniel Simons, The Invisible Gorilla: How Our Intuitions Deceive Us (New York: Broadway Paperbacks, 2009), pp. 66–73. 2. Pew Research Center, June 2014, “Political Polarization in the American Public.” 3. Gallup Polling, June 2018, “Confidence in Institutions.” 4. Thucydides, History of the Peloponnesian War, trans. Rex Warner (New York: Penguin Books, 1974), p. 244. 5. Aristotle, Politics, trans. C.D.C. Reeve (Indianapolis, IN: Hackett Publishing, 1998), 1252a, 1280a25–1281a10. 6. “From John Adams to Massachusetts Militia, 11 October 1798,” Founders Online, National Archives, https://founders.archives.gov/documents/ Adams/99-02-02-3102

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7. James Madison, “Federalist No. 51,” in The Federalist (New York: Barnes & Noble Classics, 2006), p. 288. 8. Grace A. Turkington, My Country: A Textbook in Civics and Patriotism for Young Americans, rev. ed. (New York: Ginn and Company, 1923), p.  60 (emphasis original). 9. Amartya Sen, The Idea of Justice (Cambridge, MA: Harvard University Press, 2009), p. 16. 10. Jan Narveson, Moral Matters (Peterborough, ON: Broadview Press, 1993). 11. Aristotle, Politics, 1.5–7; Julia Annas, “Epictetus on Moral Perspectives,” in The Philosophy of Epictetus, eds. Theodore Scaltsas and Andrew S. Mason (Oxford: Oxford University Press, 2007), pp. 150–2. 12. Onora O’Neill, Towards Justice and Virtue (Cambridge: Cambridge University Press, 1996), p. 9 (emphasis added). 13. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999 [1971]), p. 3. 14. See Julia Driver, Uneasy Virtue (Cambridge: Cambridge University Press, 2001), and Lisa Tessman, Burdened Virtues: Virtue Ethics for Liberatory Struggles (Oxford: Oxford University Press, 2005). 15. Rawls, A Theory of Justice, p. 4. 16. Aristotle, Politics, 1252b25. 17. Daniel C. Russell, “Virtue Ethics and Political Philosophy,” in The Routledge Companion to Social and Political Philosophy, eds. Gerald Gaus and Fred D’Agostino (London: Routledge, 2012), p. 364. 18. A recent classic on this topic is Michael Huemer, The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey (London: Palgrave Macmillan, 2013). 19. See John Locke, Second Treatise of Government, ed. C.B. Macpherson (Indianapolis, IN: Hackett Publishing, 1980 [1690]); Jean-Jacques, Rousseau, The Social Contract, trans. Maurice Cranston (London: Penguin Classics, 1968 [1762]). 20. Mark LeBar, “Virtue and Politics,” in The Cambridge Companion to Virtue Ethics, ed. Daniel C. Russell (Cambridge: Cambridge University Press, 2013), p. 267. 21. Charles Larmore, The Morals of Modernity (Cambridge: Cambridge University Press, 1996), Ch. 1. 22. Aristotle, Politics, 1339a10–1340b15. 23. John Rawls,“The Idea of Public Reason Revisited,” in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999 [1997]), p. 573. 24. Gerald Gaus, The Order of Public Reason (Cambridge: Cambridge University Press, 2011), p. 8. 25. Aristotle, Politics, 1261a30–1261b5; Aristotle, Nicomachean Ethics, ed. Roger Crisp (Cambridge: Cambridge University Press, 2000), 1132b32– 1134a30, 1163b32–1164a2. 26. Rawls, A Theory of Justice, p. 5. 27. F.H. Bradley, “My Station and Its Duties,” in Ethical Studies (Oxford: Oxford University Press, 1927); Michael O. Hardimon, “Role Obligations,” The Journal of Philosophy, Vol. 91, No. 7 (July 1994), pp. 333–63. 28. Mark LeBar, “The Virtue of Justice Revisited,” in The Handbook of Virtue Ethics, eds. Stan van Hooft and Nafsika Athanassoulis (London: Acumen Publishing, 2014), pp. 270–1. 29. Tristan J. Rogers, “Justice as Lawfulness,” Journal of the American Philosophical Association, Vol. 4, No. 2 (Summer 2018), pp. 262–78. 30. See Martha Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, MA: Harvard University Press, 2006), and Douglas Rasmussen and Douglas Den Uyl, Norms of Liberty (University Park, PA: Penn State University Press, 2005).

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31. Rawls, A Theory of Justice, p. 45, fn 26. 32. Aristotle, Nicomachean Ethics, 1098b10. 33. Bertrand Russell, “The Philosophy of Logical Atomism,” in Logic and Knowledge, ed. R.C. Marsh (London: Allen & Unwin, 1956), p. 193. 34. Julia Annas, Intelligent Virtue (Oxford: Oxford University Press, 2011), Ch. 1 and Ch. 10. 35. David Schmidtz, Elements of Justice (Cambridge: Cambridge University Press, 2006), p. 21. 36. Mark LeBar, “The Virtue of Justice Revisited,” pp. 265–75. 37. Rosalind Hursthouse, “After Hume’s Justice,” Proceedings of the Aristotelian Society, Vol. 91 (1990–1991), pp. 229–45. 38. Hursthouse, “After Hume’s Justice,” pp. 243–4. 39. Alexis de Tocqueville, Democracy in America, ed. Eduardo Nolla, trans. James T. Schleifer (Indianapolis, IN: Liberty Fund, 2010 [1840]), Vol. II, Section 4, Ch. 6. 40. Rosalind Hursthouse, On Virtue Ethics (New York: Oxford University Press, 1999), p. 5. 41. Rosalind Hursthouse and Glen Pettigrove, “Virtue Ethics,” The Stanford Encyclopedia of Philosophy (Fall 2018 Edition), ed. Edward N. Zalta, https:// plato.stanford.edu/entries/ethics-virtue/

Part I

Living Well in a Political Community

2

Virtue and Political Authority

Aristotle reminds us that “we acquire the virtues by first exercising them.”1 And it is difficult to deny that this process of moral development must begin in a political community. But what would a virtuous person characteristically do in the institutions of a good society? Do political states have the authority to impose (and enforce) moral obligations on virtuous persons? And does a virtuous person have a moral obligation to obey the laws of a political state? These are foundational questions in political philosophy, yet while political philosophers have occasionally gestured at the virtues of character, virtue ethicists have seldom addressed the problem of political authority.2 Perhaps in an ideally just society consisting of ideally virtuous persons, political authority would be unnecessary. The Stoics embrace this view with their claim that the hypothesized ideal city of sages is the only true city.3 But given that few people are virtuous, and no society is fully just, the Stoic claim is of limited use to virtue-seeking agents of existing political societies. Nevertheless, the Stoic philosopher Seneca offers a useful metaphor for thinking about the relation between the virtuous person and a political community: We should try to comprehend two commonwealths [res publicae]: one great and truly common to all, by which gods and men are held together and in which we should not look for this or that out-of-the-way place but the boundaries of a city as measured by the course of the sun; and another in which we are included by accident of birth, which may be that of the Athenians or of the Carthaginians or any other city which does not reach out to include all men but only specific ones.4 According to Seneca, all human beings are dual citizens. Everyone is a citizen of the frst commonwealth because we can take the cosmopolitan perspective of human reason as a universal moral standard for virtuous action. But each person is also a citizen of a second commonwealth, that is, the partial perspective of membership in a political state, which has

18 Living Well in a Political Community its own demands that intersect with virtue. Seneca’s point is that the perspective of the frst commonwealth is always available to us, and indeed, morally necessary, even from our partial perspectives. But it is less clear how the two ft together. The political state, after all, makes a claim of authority, which may require political obligations that compete or confict with the virtues. In such a case, why should particular political obligations trump the universal demands of virtue? And even if the virtues require political obligations, what are the limits to political obligation? What moral criteria make a political state legitimate? This chapter attempts to reconcile virtue and political authority.5 In doing so, I formulate a view consisting of three claims. First, political authority is a necessary precondition for virtuous agency. The virtues require an institutional context partially defined by the presence of political authority. Second, political obligation is determined by one’s membership in a political community. To this extent, the moral character of political obligations resemble obligations to family members. Third, the legitimacy of a political state depends on the opportunities available to virtuous persons for maintaining and reforming their established constitutional order. Ultimately, I argue that there is no tension between political authority and the demands of virtue because a political community, characterized by political authority, is a necessary precondition for the development and exercise of the virtues.

Eudaimonist Virtue Ethics Eudaimonism, as the name indicates, puts the good life, eudaimonia,6 at the heart of ethics. Most eudaimonists also hold that eudaimonia requires the virtues, and so eudaimonism is considered part of the family (if not a charter member) of virtue ethics.7 The view begins with Aristotle’s familiar claim that ethics is fundamentally about action, not knowledge.8 The point of ethics is to live a good life, not merely acquire or discover moral knowledge. Thus, moral reasoning always takes place in the context of a person’s actual life and how one might live better by developing and exercising the virtues. In this manner, eudaimonism recognizes that by the time a mature person comes to think about ethics (e.g., in a moral philosophy course), she already has a life with a set of implicit moral commitments, a character that has been at least partially formed, and a community in which she belongs. Starting from these materials, a person may undergo a process of moral development, where she reorients herself with respect to the life she has, accepting or revising some aspects, and rejecting others, thus forging her character. It is in this manner that the ancient virtue ethicists analogized virtue as the development of a practical skill.9 If virtue is the practical skill of living, the materials that virtue works on and through are the traditions, institutions, social practices, and relationships that partly constitute and shape a person’s life. In this manner, a person always acts virtuously in the context of various social and cultural

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roles, e.g., the role of a citizen, student, sibling, friend, and so on. In other words, eudaimonism recognizes what I will call “the fact of social embeddedness.”10 Moral agents live in a particular society, at a particular time in history, enmeshed in a culture, all of which partially define the moral soil from which virtuous action can take root. Cicero, following the Stoic philosopher Panaetius, explains this process of moral development within the socially embedded perspective in terms of four personae or roles each person inhabits.11 The first is the role a person shares with everyone in virtue of being a human being with the capacity for reason, that is, the capacity to shape one’s circumstances. The second refers to a person’s natural circumstances, their peculiar gifts, talents, psychological dispositions, and other natural contingencies. Someone with a natural aptitude for athletics, for instance, may develop virtues specific to that ability. Cicero’s third persona consists in a person’s social circumstances, the family and society into which they are born, and other social factors largely beyond our control. Thus, some virtues might be relative to the peculiar political and social structures for which they are suited. Lastly, there are roles a person takes on because of a voluntary choice, such as what career to pursue or whom to marry: a person’s chosen circumstances. There may be, for instance, virtues peculiar to family life that one takes on because of the choice to get married and have children. According to Cicero, then, we live well when we apply (a) practical wisdom to adapt (b) our own peculiar nature to (c) our social circumstances and (d) individual choices. This process is guided by an Aristotelian conception of practical reasoning as requiring a “final end” (telos).12 The idea of a final end sounds abstract and frequently invites misguided charges of an essentialist teleology.13 But Aristotle, at least in his practical philosophy, simply takes himself to be describing the ordinary way in which we conceive of our lives on reflection.14 I wake up in the morning and make coffee. I spend the morning reading or writing, and play music in the afternoon. Then I eat dinner with my family, and I get up and do it all over again (with some variation) the next day. The question is whether I do these things for a purpose, as part of a life I conceive for myself, or whether they are an unconnected stream of activities and thoughts flowing through my existence without a unified structure. Aristotle’s idea is that I do each of these things “for the sake of” something else, and that if we follow the chain to its logical conclusion, we will eventually arrive at a final end, the thing that brings structural unity to practical reasoning. Aristotle identifies the final end with eudaimonia. “There is pretty general agreement,” Aristotle observes, that “[the final end] is happiness [eudaimonia], say both ordinary and cultured people; and they identify happiness with living well or doing well.”15 Eudaimonia is the only thing that can serve as the terminus of practical reasoning. It makes sense to ask why somebody might want to become president of the

20

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United States; it doesn’t make sense to ask why somebody is interested in living a happy (or good) life. Thus, happiness, in the ancient eudaimonist sense, is both the idea of a life that is objectively good for the person living it and a life that is subjectively experienced as good from the inside. Eudaimonia encompasses both the modern concept of happiness as a positive psychological state and the concept of well-being, a life that really is good for the person who lives it.16 A familiar objection to eudaimonism, which bears directly on the problem of political authority, is that it cannot account for the imperatival nature of modern ethics. For instance, Gerald Gaus, drawing on an influential distinction made by Henry Sidgwick,17 writes that “[a]ncient ethics was teleological, a science of ends; it concerned what a person properly desires or what a proper, virtuous person desires, or finds attractive. In contrast, modern ethics concerns what we must do—what we are required to do even if we are not attracted by it.”18 Virtue, then, is allegedly ancillary to the problem of political authority. For if we have political obligations, they are independent of what virtue requires. Political obligations concern what we must do, not what we ought to desire. But Gaus’s sweeping dismissal of ancient ethics misses the mark.19 While eudaimonism conceives of normativity in terms of the attractive power of the good, because the virtuous person performs virtuous actions, which she grasps as what ought to be done, the virtuous person qua normative ideal of the good is an imperative notion. We are compelled to emulate the example of the virtuous person because we are attracted by it, in the same way, for instance, that we are normatively compelled to praise those who are praiseworthy. Unlike some modern ethical theories, eudaimonism does not posit a fundamental division in practical reasoning between what a person ought to do (“the right”) and what a person ought to desire (“the good”). On the contrary, the virtuous person does what is required by the virtues out of a desire for what is good. Moreover, since eudaimonia requires the virtues (ex hypothesi), and the virtues require that we choose actions that we ought to perform, even if we do not initially desire to perform them, by aiming at eudaimonia, one implicitly undertakes the challenge of doing what one ought to do, that is, doing the right thing. The virtuous person, therefore, if it can be said that he has political obligations, will be obligated to obey political authority as a requirement of virtue, not some abstract sense of “moral obligation.”20

Political Authority, Obligation, and Legitimacy Before exploring the eudaimonist approach to the problem of political authority, we should first describe the basic concepts of political authority, obligation, and legitimacy, which, although philosophical concepts, have some grounding in common beliefs. In mid-April, for instance, when individual income taxes are due in the United States, most Americans

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would consider themselves morally obligated to pay their share. This appears to be a belief in the concept of political obligation, the idea that one is morally obligated to obey the laws of one’s political state. We also acknowledge that the political state has authority to impose taxes on citizens, in a way, for instance, that an extralegal mafia organization does not. This is a belief in political authority, the idea that political states have an exclusive right to impose (and coercively enforce) moral obligations through the instrument of law. But there are also limits to political obligation and political authority. For example, a political state that decided to impose an excessively confiscatory income tax on its citizens might face fierce and overwhelming opposition, thus calling into question its authority, and ultimately, its legitimacy. This is political legitimacy, the idea that political states are subject to moral criteria that (a) set limits on their authority and (b) subject them to moral evaluation. Political authority refers to a political state’s right to rule.21 Sometimes the right to rule is put in terms of a moral power, meaning that the actions of a political authority can create, change, or abolish moral obligations, in the way, for instance, that the Income Tax Amendment of 1913 created a moral obligation to pay income taxes in the United States that hitherto did not exist.22 This moral power reflects the sense in which “authority” derives from the Latin auctor: a political authority creates or authors the laws, which generate moral duties on behalf of those within the authority’s jurisdiction. And since a political authority coercively enforces the law, the right to rule amounts to the right to unilaterally coerce all members within its jurisdiction. In this sense, the right to rule is general. It is also comprehensive in the sense of ranging over a wide (though not unlimited) array of activities. Lastly, the right to rule is supreme because it supersedes the authority of individuals and nonpolitical institutions. Political authority, then, consists in the general right of a political state to rule over individuals, comprehensively, and as the supreme authority.23 Political authority is correlative of political obligation. Since obligations and duties are correlated with rights, if the political state has authority, then those who live under its authority have political obligations. We can also distinguish the merely legal obligation to obey existing laws from the moral obligation to obey the law as such. A moral obligation enjoins action regardless of one’s narrowly self-interested desires, and (potentially) apart from what is required by existing law. The moral duty to obey the law is also political in two senses: (a) it is owed to a political state that legislates and (b) it is owed in virtue of a person’s status as a member of a political state.24 This second feature also means that political obligation is owed by an individual to a particular political state.25 Finally, political obligation is content-neutral in the sense that one’s moral obligation does not wholly depend on the moral content of the law.26 We can provisionally define political obligation, therefore,

22 Living Well in a Political Community as a content-neutral moral obligation of a person to obey the laws of a particular political state. Although they are sometimes used interchangeably, I distinguish political authority and political obligation, as I have just defined them, from political legitimacy. Political legitimacy is an additional moral property that obtains when (a) political states have a right to rule, (b) citizens have political obligations, and (c) the state is morally justified in ruling. Political authority refers to the authority of states as a type of group, which claims authority, while political legitimacy refers to tokens of the grouptype, political state. The distinction is important because it is possible that the political authority characteristic of the political state is justified, while, for moral reasons, some existing political states lack legitimacy. For instance, insofar as it is a sovereign state, we may admit that China has political authority, but it lacks political legitimacy for (presumably) failing some set of moral criteria. Political authority, then, is a necessary condition for political legitimacy, but not a sufficient condition. The classic problem of political authority, which gained traction in the social contract tradition, was stated succinctly by Jean-Jacques Rousseau: The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before.27 On Rousseau’s formulation of the problem, the association of the political state claims authority over individuals, who are thought to be free and equal in the sense of being free to act according to their own reason and equal in their capacity to claim authority over one another. The question thus arises: How can free and equal individuals submit to political authority, which necessarily places them in a position of unequal subordination? Part of the diffculty of formulating a virtue ethical account of political authority is the conceptual distance of eudaimonism from the classical social contract theories and their descendants in contemporary political philosophy. This conceptual distance has caused some critics to claim that the distinctly modern problem of political authority is foreign to the ancient ethical foundations of eudaimonism.28 Can the problem of political authority be formulated in virtue ethical terms? I believe it can. The classic problem of political authority, it may be said, identifies a tension between the moral authority of the social structure (i.e., the political state) and the moral authority of free and equal individuals, focusing on the justification of the coercive power of the political state. Underlying this tension are two values: (i) political order, which political authority establishes and maintains with coercive force (if necessary) and (ii) moral agency, defined by the free and equal individual, whose freedom may conflict with the coercive power of the

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political state. A similar tension underlies eudaimonism, albeit stated differently. For eudaimonism locates moral agency in our capacity for virtue and locates political order in the political state in which we are socially embedded, which is also the locus of political authority. How, then, should eudaimonism conceive of acting virtuously in the socially embedded context of the political state? There are three issues here. First, there appears to be a conceptual tension between the authority of the political state, which is coercive, and the exercise of virtue, which is a function of choice. Why should someone who is freely exercising the virtues, which are required by eudaimonia, defer to the authority of the state, which demands obedience independently from what the virtues demand? Second, there is the related issue of why political obligations should take priority over obligations demanded by the virtues. Why, for instance, should the political obligation to pay taxes take priority over the virtue of acting beneficently with one’s pretax income? Third, there may be a practical moral conflict between the obligations imposed by the political state and the requirements of virtue. After all, isn’t a political state morally illegitimate, on virtue grounds, if it requires its citizens to perform actions that are outright vicious?

Political Authority and Virtuous Agency Before engaging these three issues, we should take a step back and examine the critical role of authority in moral experience. The claim that authority is partly constitutive of moral experience supports my argument that political authority is necessary for virtuous agency. My arguments draw on two insights from Elizabeth Anscombe: (i) the importance of “an adequate philosophy of [moral] psychology,” and (ii) that the “Authority [of the state] arises from the necessity of a task.”29 Thus, I will proceed in two stages. First, I will formulate a kind of transcendental argument that shows that the idea of authority is presupposed by our psychological experience as moral agents. Second, I will explain how the necessity of political authority to virtuous agency morally justifies political authority. Moral experience is about action. We act for various purposes, and in our dealings with others, we exchange reasons, thus negotiating and adjusting our behavior to suit the social environment. Human beings are a social and cooperative species, or in Aristotle’s famous phrase “a political animal.” We plan careers, care for children, exchange goods, form queues, argue about politics, and so on. Unlike nonhuman animals who act based on instinct, human beings have at least the experience of free will and the felt need to hold others morally responsible. Hence, moral concepts—such as “right” and “wrong”; “honorable” and “dishonorable”; “authoritative” and “unauthorized”—are basic building blocks of moral experience. Such concepts give our reasons for action moral valence and divide the world up into a place of values, which is ultimately

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irreducible to facts. The world is a place where things can go better or worse, be good or bad, just or unjust, and so on. Not even a hardened moral skeptic can escape this fact, at least in practice. The foregoing suggests that our experience of the world is essentially that of agents who recognize authority claims, whether made by people, social practices, institutions, or a political state. This is a remarkable social fact. For instance, to have a relationship with a friend, one must view the other person as a self-generating source of moral authority, or in Kantian terminology, as an end in themselves.30 In absence of this reciprocal relation, we may conclude, real friendship is impossible. Similarly, moral epithets such as “dishonest,” “liar,” and “cheat” presuppose the authority of the social practices of promising, truth-telling, and honest dealing, practices which are critical to reliably making our way in the world. Two more examples: the institution of money has authority vested in its status as legal tender and maintains this status insofar as we continue to imbue it with value by using it to facilitate economic exchange. And the authority of law distinguishes liberty from license, a distinction without which we could not distinguish ordered liberty from lawless chaos. In these cases (and others), the concept of authority is not something we get together and bestow on an external entity, as the fiction of the social contract suggests. Rather, authority is internal to the social practice of morality. As David Hume argued, the very notion of consent presupposes a functioning social practice of promising that everyone recognizes as authoritative.31 We cannot meaningfully act as moral agents without implicitly accepting psychological facts of this sort. I have argued from the claim that moral experience has a certain quality (P) to the claim that authority is a necessary precondition (Q) for our experience as moral agents. Following the standard transcendental form of argument, which attempts to show that Q is true because it is a necessary precondition for a self-evident proposition P, I conclude that we are essentially moral agents who recognize and respond to authority claims. Put another way, the fact that we see ourselves as agents accountable to authority is constitutive of moral experience. Thus, to reject authority would be to reject an important quality of moral experience. Charles Taylor observes that transcendental arguments are difficult to assess because they deal with an “area we look through rather than at.”32 How is the role of authority in moral experience related to the moral justification of political authority? The basic idea, defended by Anscombe in her “On the Source of the Authority of the State,” is that “certain kinds of needs . . . ground moral duties on suitable persons to perform the needed tasks and moral duties on others to permit and facilitate such performances.”33 My argument can be briefly stated thus: 1. We ought (morally) to develop the virtues. 2. Political authority is necessary for virtuous agency. 3. Therefore, political authority (in some form) is morally justified.

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Two issues must be clarifed with respect to the previously listed senses of “moral ought” and “necessary.” First, as Julia Annas has noticed, there is a strong tendency in moral philosophy to treat “moral obligations” as coterminous with what you ought to do in a general sense.34 But this need not be the case. As Annas explains, “[Moral] [d]uties and obligations belong in specifc contexts where you have a role, or a certain kind of relation to an institution, while there is a much broader feld where some action just is what you ought to do, or is the right thing for you to do.”35 In this latter sense, the virtues just are what we ought to pursue (because required for eudaimonia), not a specifc moral obligation in the way, for instance, that political obligations depend on one’s role as a citizen in a political state. Second, the sense of “necessary” in Premise (2) is practical, not conceptual necessity. Here, I follow Anscombe, who associates practical (or moral) necessity with an Aristotelian defnition of “necessary,” where “Y is necessary” means “that without which some good will not be obtained or some evil averted.”36 In this sense, the claim that political authority is necessary for virtuous agency means that without political authority, it would not be possible to achieve the good, i.e., eudaimonia. Since Premise (1) may be assumed for the sake of argument, given eudaimonism, I will defend Premise (2). In what sense is political authority necessary for virtuous agency? How does the political state make it possible to pursue the virtues? Political authority is a feature of political states, but the political state is only a part of a larger whole, what Aristotle calls a “political community” [koinonia politike]. A political community is composed of two parts: (a) a government that holds and exercises political power, located in its political institutions (“the political state”) and (b) a community that constitutes the social fabric of the society, located in its social institutions (“civil society”).37 Now, given the fact of social embeddedness, we are socially and culturally embedded in both political and social institutions; they are where we develop the virtues by, as Aristotle puts it, “first exercising them.”38 As such, the institutions of a political community are inseparable from the development of virtuous agency. P.F. Strawson identifies institutions with what he calls “social morality”: The fundamental idea [of social morality] is that of a socially sanctioned demand made on an individual in virtue merely of his membership of the society in question, or in virtue of a particular position which he occupies within it or a particular relation in which he stands to other members of it.39 Strawson’s insight is that social morality, as a set of institutional demands, is distinct from, and is a necessary condition for, the possibility of what he calls an “ethical ideal.” An ethical ideal is a conception of eudaimonia (in my terminology), consisting in beliefs about what is ultimately valuable in human life, what gives life purpose and meaning, and how a person

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should act in the world, including conceptions of the virtues. Importantly, the possibility of pursuing a conception of eudaimonia depends on the existence of a social morality that stabilizes social cooperation by functioning as a set of institutions with (implicit) authority over its members (Strawson’s “socially sanctioned demand”). In Aristotelian terms, social morality makes it possible to engage in practical reasoning for the sake of a fnal end. For without a stable system of social cooperation, we lack the opportunity to live virtuously because virtue is frst developed in an institutional context. Practical reasoning is fundamentally social. Thus, as Aristotle argued, the political state [polis] “comes to be for the sake of living, but it remains in existence for the sake of living well.”40 Strawson’s insight about social morality suggests a way to reconcile virtue and political authority. Since social morality is a precondition for the possibility of virtuous agency, and because social morality depends on political institutions, which necessitate political authority for their proper functioning, political authority is a necessary precondition for virtuous agency. In the absence of political authority, a society would lack the structure, predictability, and mutual expectations that make it possible to develop and exercise the virtues in the first place. And without social morality, we are thrown back into Hobbes’s state of nature, an idea whose value resides not in its historical veracity, but in making vivid to the imagination the catastrophe of a breakdown in social cooperation. For we need to be able to trust one another, and institutions facilitate social trust by coordinating actions in such a way that persons can rely on one another, so that if there is conflict, the appropriate institutional mechanisms exist to maintain social and political order. In this way, political authority is a way of “binding ourselves to the mast,” a way of taking certain courses of action off the table, so that we can more efficiently cooperate for our individual and collective ends.41 An anarchist might object: “Why should the proper functioning of social morality be thought to require the coercive power of political institutions?” Answer: while the Stoics hypothesized an ideal city of sages, where political disagreements vanish because of the concordant dictates of universal reason, the political life of virtue-seeking agents, who must cooperate and reason with each other in an institutional context, will inevitably involve political disagreements. Such disagreement requires a hierarchy of institutions in which some—usually political institutions— have a monopoly on the legitimate use of coercion to mediate conflict and disputes. Hence, the authorized use of coercion, which partly defines political authority, is necessary to the proper functioning of social morality because political authority solves the coordination and cooperation problems that characterize social life, problems that the political state in its modern form has emerged to solve.42 In this way, political institutions are what Daniel C. Russell calls “tools of preventative problemsolving.”43 While one cannot refute the anarchist claim that, in principle,

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a plurality of competing authorities is possible, in practice, the social life of human beings relies on a hierarchy of authority (which historically has taken different forms) that has emerged to mediate disputes at the lower levels of social organization. This fact makes political authority supreme or sovereign (at least) among institutional authorities. Political authority is that which authors (cf. auctor) and secures the social conditions that make social cooperation, and thus virtuous agency, possible. Political authority is also general because social cooperation requires the subjection of all who are members of the same political community to the same rules. Finally, political authority is comprehensive (though not unlimited) in its scope of activities because there are potentially many kinds of activities that might upset the social order. The right to rule, then, is the right to maintain the conditions of social cooperation required for virtue agency by (if necessary) coercive means.

Political Obligation and Social Membership If political states have authority—the right to rule—then the citizens of a political state have moral obligations to obey. But how should these (political) obligations be understood? A. John Simmons, for instance, poses two critical questions for so-called “necessity accounts” of political authority: (i) “[o]n precisely whom does necessity confer authority?”44 and (ii) “on precisely whom does necessity impose duties?”45 For instance, what makes the current federal administration of the United States of America a suitable authority for performing what are admittedly necessary tasks? That is, of what relevance is the political status quo to the moral evaluation of who wields political authority? Further, Simmons wonders whether there might not be some “unusual valuers,” who dissent from the claim that political authority is necessary, or so-called “self-providers,” who would like to perform the task of securing social order themselves without the aid of a coercive political state.46 Why, Simmons queries, can’t these (perhaps even virtuous?) persons claim a special exemption from the general moral duty to obey the law? Simmons’s questions imply that there must be some independently justified theory of political authority that determines who is morally justified in ruling and who is morally obligated to obey. The view I defend departs from this assumption, which I think the prior argument shows is unfounded. Once we acknowledge the moral necessity of political authority, it is evident that political obligations derive directly from social membership in a political state. Social membership generates what Ronald Dworkin calls “associative” obligations to comply with the laws of a political community.47 Associative obligations are distinctive for two reasons. First, associative obligations are nonvoluntary in the sense that they attach to persons as members of a group that they have not necessarily chosen to join, as often

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is the case with political affiliation. Second, associative obligations follow roles, often specified by group membership, that supersede individual moral judgments.48 Taken together, the existence of associative obligations undermines Hobbes’s assertion that there can be “no obligation on any man which arises not from some act of his own.”49 Many, if not the most important of our moral obligations are inherent to the social world into which we are born.50 It is a virtue of eudaimonism that it recognizes and incorporates this fact, which itself reflects the fact of social embeddedness. Political obligations can be fruitfully compared to familial obligations. Like a political community, the family is an institution that, for the most part, we are born into, or otherwise join involuntarily. Similarly, the fact that we do not typically contract into family obligations seems appropriate and desirable, rather than morally fraught, or in need of special moral justification. Further, the family depends on the authority of parents over children. Obligations to parents, for instance, plausibly arise as a consequence of the necessary task parents undertake in the rearing of children, for which children have a corresponding moral duty of obedience. Analogously, the task of governments requires that citizens have a general political obligation to obey the law. The parallel I have drawn also extends to the relevant emotional attachments. For people typically have exclusive feelings for members of their own family, and they identify themselves with their family insofar as it plays a formative role in their personal identity. Partiality toward fellow citizens and a sense of national identity are the political parallels. Both ideas find a home in the political analog of family love: patriotism, love of one’s country. Stephen Nathanson defines patriotism as involving: 1. 2. 3. 4.

Special affection for one’s country, A sense of personal identification with the country, Special concern for the well-being of the country, and Willingness to sacrifice to promote the country’s good.51

Patriotism is the virtue associated with the fundamental feelings of allegiance and identity, feelings on which a political community depends.52 Such feelings blunt the nonvoluntary nature of political obligation because persons come to regard political membership as part of their good rather than an external imposition on their frst-person desires and interests. Political communities are defined by rights of membership that specify who is a member of the community, and the benefits and burdens borne by members. These are the rights and responsibilities of citizenship. If we are citizens of the same political community, your right to participate corresponds with my responsibility to respect your right and see that it is protected. In this way, political obligation is the duty and responsibility of a good citizen. This explains how political obligation is related to the political state’s right to rule. For one person’s citizenship rights impose on

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another the obligation to follow the norms of the group that define one’s rights, and this is the case reciprocally, such that each person acquires a political obligation insofar as each claims a membership right.53 Allegiance to one’s country and the responsibilities of citizenship explain (a) why political obligation must be to a particular political community and (b) why political obligation is content-neutral. First, allegiance explains why political obligation is owed to a particular political community. The feelings of allegiance that support belief in political obligation are only possible when political obligation attaches exclusively to one political community. Just as one cannot love all families indiscriminately, political allegiance cannot be extended to encompass the global community. Cosmopolitanism may be a worthy ideal, but it cannot generate the feelings of allegiance that maintain a political community.54 Second, the responsibilities of citizenship explain why political obligation must be content-neutral. Group membership requires that joint commitment to group norms have priority over individual judgments about the moral content of specific norms or rules. To be subject to a content-neutral obligation is to be a member of a group that cannot exist but for the willingness of everyone to subordinate their judgment (in part) to the norms that govern the group.55 While political obligation need not override every moral challenge (as we will see in what follows), it is a prima facie obligation that is not tethered to the moral content of specific laws. At this point, one may object, why should we think of political obligation as akin to familial obligation when political communities lack the close ties characteristic of families?56 While citizens of the same political community may feel closer to each other than they would toward someone of a different political community, very rarely do these ties reach the strength of family relationships. We acknowledge the moral force of family obligations only because close relationships generate strong obligations. There is also the related issue that paternalism, which is appropriate in close relationships with asymmetries in competence and power, may be extended into the political domain, which looks much less desirable since we are dealing with a community of equal adults. But if political obligation derives from group membership, and a political community is like a family, then why not countenance paternalism? My first response to this objection is that the argument for the social membership account of political obligation is not primarily an analogical argument and therefore does not stand or fall with the strength of the family analogy. I have primarily argued that nonvoluntary associative duties capture an important aspect of moral life not captured by extant theories of political obligation. It should also be noted that the family analogy does not concern the strength of the relationships in a political community vis-à-vis the family. Rather, the analogy concerns the way in which a person stands in a relationship pregnant with moral obligations. The objection also ignores the importance of allegiance as a feeling that generates

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affective ties between fellow citizens. Such ties may not rise to the level of family relationships (as they shouldn’t, assuming some degree of natural partiality), but they do form the basis of neighborliness, which may keep peace in a polity, much as love keeps peace within a family. Although I have not yet defended an account of the role of government, these differences also blunt the force of the paternalism charge. Since the relationship between members of the political community is based on equal competence, it is unclear why noticing the similarities between a political community and the family should raise the specter of paternalism. A second objection is that the fact that most people regard themselves as having political obligations does not show that they really do have political obligations.57 A sense of an obligation is not itself a justification for thinking that a moral obligation really exists. It may be, for instance, that most people are deluded; they are under the influence of folk political psychology and therefore not reliable sources for a philosophically defensible account of political obligation. We also know from research in psychology that sometimes people will act on this sense of obligation to do things they have a moral obligation not to do.58 Grounding political obligation in social membership, therefore, seems like a way of doing away with the individual moral obligation to take a critical perspective on group-generated obligations. My response to this objection turns it into a strength. Earlier I noted the fact that most people regard themselves as having political obligations. The family analogy makes this clear. Most people have a sense that they have obligations to family members. Few people, however, think we need a prior account of how these obligations are morally justified. They simply flow from the existence of the family as a legitimate (and morally necessary) social institution. Here the critic is really looking for a justification grounded in independent moral principles that do not depend on our socially mediated moral judgments. But, as I argued earlier, morality arises out of social arrangements; not the other way around. So, while the sense of political obligation is not itself an independent moral justification for political obligation, the demand for this type of justification is itself unreasonable. So, social membership in a political state explains how a virtuous person should respond to the apparent conflict between political obligation and the virtues. Making progress toward the virtues requires that we exercise virtue through the particular attachments and obligations that are given to us in social and political life. One becomes virtuous as a virtuous citizen, parent, neighbor, and so on. Virtue does not require (or even permit) you to discard existing obligations, but rather transforms your relationship to them in the direction of living well in accordance with the virtues.

Legitimacy and the Limits of Political Authority A final objection to the view I have developed concerns the moral character of political communities that generate political obligations. Imagine,

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for instance, that you are an African American who walks into a diner in the Jim Crow South. Despite the clearly posted sign on the door stating that you are (by law) not welcome, you take a seat at the lunch counter and request a menu. Further, suppose that the lady working behind the counter is a recent transplant from the North, who does not share the racial prejudices of the local population, but has nevertheless recently joined their political community. According to my view, both citizens have a political obligation to obey the law because they are members of the political community that has authorized the Jim Crow laws. The gentleman is obligated not to set foot in the diner, and the lady working at the diner has an obligation to throw him out of the diner, even though she is herself morally opposed to the racially discriminatory law and recognizes the moral viciousness it requires. The force of this objection invites reflection on political legitimacy. Earlier I defined political legitimacy as a moral property of a particular political community. But while I claim that the mere existence of a political community is sufficient to generate political obligations, we cannot weigh the normative force of political obligation, in practice, without first considering the moral character of the political community in which the obligation arises. Furthermore, political obligation need not override all other moral obligations; it is a prima facie obligation. And it is very plausible that there are some circumstances in which political obligation is overridden by what the virtues require. But again, this no more invalidates the general concept of political obligation than the fact that there are some (perhaps extreme) circumstances in which you are not morally obligated to your family. What are the criteria for a eudaimonist account of political legitimacy? Since the political community exists for the sake of living well, which requires the virtues, plausibly the political state should facilitate (and not undermine) virtue. In other words, a political state is legitimate to the extent that it enables its citizens to live virtuously. As Rosalind Hursthouse, in an influential passage, puts it, [i]f a just law, determining a right, cannot as things stand, be implemented in a particular society, without necessitating that some members of the society act wickedly or wrongly, then it cannot, as things stand be implemented.59 Mark LeBar calls this “Hursthouse’s Constraint,” which is the idea that “virtue imposes a necessary constraint on the exercise of political authority.”60 What might this mean? As we have seen, virtue requires at least a stable scheme of social cooperation that preserves the kind of political order that makes virtuous activity possible. But mere order is not suffcient, since institutions clearly sometimes do not function to enable persons to live well, and therefore must occasionally be reformed. Political legitimacy, then, requires that a political state has mechanisms for reform

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from within a stable political order. The state must not require its citizens to act viciously, as Hursthouse argues, or else it will straightforwardly fail to enable persons to live well. But, in her efforts at reform, the virtuous person will also observe what Adam Smith (following Cicero) calls “the divine maxim of Plato,” which is “never to use violence to his country no more than to his parents.”61 Hence, citizens must not act viciously in relation to their political state, which implies a reciprocal constraint on political reform. Political legitimacy consists in a reciprocal relationship between citizens and their institutions on mutual terms of virtue. These criteria for political legitimacy can be usefully compared to games. A game is justified so long as there are people who want to play it. Games have a kind of natural justification that depends on voluntariness. But the voluntary nature of a game does not rule out the necessity of a referee to interpret and enforce the rules. In a similar way, I have claimed that a political community is based on the natural allegiance felt by citizens toward their community. But this does not obviate the necessity of political authority to make, interpret, and enforce the rules of the political community because, like good sportsmanship, natural allegiance and compliance are unevenly distributed in a population. Now, while few would dispute the value of games per se, we can ask what makes a particular game worth playing. Similarly, we can ask what makes a particular political community worthy of being a member, that is, what makes a political community legitimate. In this sense, political legitimacy, as I have described it, is a moral relation between a political community and its citizens. Or since a political community just is composed of citizens, who sometimes occupy positions of power and authority and sometimes do not, we can say that legitimacy is a moral relation among citizens. And as with all relationships, its quality will be a matter of degree, depending on its composition of virtue and vice. There will be a point at which a political community utterly lacks legitimacy, but for the most part, political communities will be legitimate to some degree. While it is difficult to state and apply these conditions for legitimacy in the abstract, ultimately, they depend on the practical wisdom of virtue-seeking persons. Political legitimacy is a reciprocal relationship between individuals and institutions, where an individual has an obligation to obey (political obligation) and institutions have a right to rule (political authority). A political community has legitimacy when the virtues of ruling and the virtues of being ruled both flourish. We can see the necessity of virtue to legitimacy by considering what happens in its absence. Political obligation derives from one’s membership in a political community. However, mere membership and the associated feelings of allegiance and responsibility will not sustain themselves if individual citizens behave viciously toward one another. Many African Americans, for instance, who had served their country honorably in World War II, may

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have felt their allegiance to the United States diminished by the way they were treated upon returning. In a similar way, wanton abuse by vicious persons in positions of political power will not command the natural allegiance of those whom they are supposed to serve. The same point can be made in terms of games. For games depend on fair play and reciprocity. In a political community with rights of equal participation, citizens exchange the authority exercised in ruling, so that the good citizen is equally capable of ruling and being ruled.62 But political authority, in the abstract, which is represented by the office of the sovereign, remains independent of those individuals who occupy the office at a given time.63 In this way, members of a political community are accountable to the hierarchy of authority and no person is above the law, whether ruler or citizen. Stable societies depend on this element of fair play, such that each member of the group can be relied upon to pursue their own interest in a way that doesn’t undermine the stability of the group. That the stability of institutions depends on (a) general obedience to the rules and (b) accountability to fellow members suggests a broad set of moral criteria for assessing the legitimacy of political states. First, a political state should be self-sustaining in the sense that its members desire to maintain it. While I have underscored the necessity of coercion for enforcing rules, all things being equal, a group that commands the willing allegiance of its members will be more stable because of reduced enforcement costs. Second, a political state should allow its members to propose and enact reforms, so that they might better achieve their individual (and collective) ends. A closed system will not be able to absorb and adapt to the ever-changing social world. This is another way that institutions are like tools, which require continual adjustment and updating to the dynamic nature of the task.64 Finally, as another means to remedy institutional defects, a political state should allow its members to generate further subgroups or associations to meet the idiosyncratic needs of individuals that arise through the ordinary exchanges of social life. The foregoing three conditions pose the following questions we should ask about the legitimacy of a political community: 1. Does the political community earn the willing allegiance of its members? 2. Does the political community have mechanisms to reform its institutions? 3. Does the political community allow members to form associations smaller than the political community? How do these more specifc criteria apply to the Jim Crow example introduced earlier? The institution of Jim Crow clearly failed the frst criterion, since it is diffcult to imagine how an institution that excludes some members from full participation on morally arbitrary grounds could

34 Living Well in a Political Community command the willing allegiance of its members. Indeed, the evil of Jim Crow was that it backed up social prejudices with the force of political power. But the eventual success of defeating the Jim Crow laws showed that the second criterion was at least partially met. The possibility of forming associations also remained in ways that allowed citizens to come together to fght against the evil institution. We can conclude, then, that while members of the Jim Crow South could be said to have political obligations according to my view, because specifc laws lacked legitimacy, the requirements of virtue override the prima facie political obligation to obey such laws, and this political community was to that extent illegitimate. Therefore, the original objection about the unjust character of some groups does not undermine my view, but instead points to the fact that group membership generates obligations that are conditional on whether the group genuinely allows its members to exercise the virtues together.

Conclusion I have argued that eudaimonism makes a meaningful contribution to the foundational problem of political philosophy—the problem of political authority. In closing, it is worth reflecting on two important implications of the argument. First, we have seen that the virtues cannot be understood apart from an understanding of the institutional context in which we develop virtue. We must accept the fact of social embeddedness. Second, in connecting the virtues to political authority, eudaimonism offers an underlying account of moral psychology that is often absent from discussions of political authority. Authority, as I have argued, is a partially psychological notion. Authority, in some sense, must be seen to be legitimate to be legitimate. So, if the reasons we have for recognizing political authority are also reasons for living virtuously, this gives us an account of political authority grounded in moral experience and practical reason, rather than abstract theoretical considerations that have little bearing on how we morally engage with political authority in the world. It is fitting that the eudaimonist account of political authority resembles Socrates’s seminal treatment of political obligation in Plato’s Crito.65 Socrates, recall, mainly argues that he should not escape from prison and retreat to exile because it would be unjust to neglect his political obligation as a member of the Athenian political community, which made his life in pursuit of virtue possible. Socrates goes on to make four subarguments that anticipate four major developments in the theory of political obligation. First, he points out that having spent his whole life in Athens, this could be taken as evidence that he has consented to obey the laws. Second, Socrates suggests that there is something impious (or ungracious) about refusing to recognize the significance of his formative years in Athens, years that, in part, made him the person he is. Third, Socrates queries whether retreating to exile would be a way of abandoning his  fellow  citizens, people

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whom he owes a duty of fairness insofar as they all share in the benefits of political membership. Finally, Socrates gives consequentialist reasons for connecting the stability of the city to the willingness of individuals to subordinate their individual judgment to the authority of the laws. The intuitions behind Socrates’s four arguments form the basis of modern theories of political obligation ranging from social contract theories, gratitude theories, theories of fairness, and consequentialist theories. However, while his early influence from Crito is usually noted, Socrates’s implicit commitment to eudaimonism (amply demonstrated in the other Platonic dialogues) is often left out of his specific arguments for political obligation. A eudaimonist account of political authority, meanwhile, unifies the underlying intuitions behind Socrates’s arguments. Political authority is not grounded in a contract (per the social contract theorists), but there remains a sense in which our acquiescence to political authority is an indication that we do not regard it as too burdensome to shrug off. The benefits of living with political authority also seem to generate appropriate feelings of gratitude, especially because some political communities grant benefits that are very great indeed, both in comparison to other existing polities and in absolute historical terms. Gratitude also requires that one take on the responsibility of sustaining the group that makes such benefits possible, hence so-called fairness theories of political obligation. Lastly, there is a strong consequentialist justification for political obligation to the extent that political institutions are efficient mechanisms for the facilitation of social cooperation, indeed, mechanisms that make eudaimonia possible. Michael Huemer, who defends philosophical anarchism, claims that “political authority is a moral illusion.”66 Meanwhile, John Horton, who defends a membership account of political obligation, argues that philosophical anarchists are mistaken in thinking “that political life is left more or less unchanged by dispensing with some conception of political obligation. . . . Unless it can be shown that we can continue to talk intelligibly and credibly of our government or our state, then a radical rethinking of our political relations is an unavoidable consequence.”67 The situation is much worse, in fact. Without some conception of political obligation, we can scarcely make sense of our moral lives. For those lives are necessarily bound up with the authority of the political state of which we are members.

Notes 1. Aristotle, Nicomachean Ethics, trans. Roger Crisp (Cambridge: Cambridge University Press, 2000), 1103a30 (translation slightly modified). 2. This lacuna is identified in Daniel C. Russell, “Virtue Ethics and Political Philosophy,” in The Routledge Companion to Social and Political Philosophy, eds. Gerald Gaus and Fred D’Agostino (London: Routledge, 2012), pp. 364– 74. Interest in the virtues from political philosophers has been mostly confined to the civic virtues in the debate between liberalism and communitarianism.

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3. 4. 5. 6. 7.

8. 9. 10.

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

17. 18. 19. 20.

21.

Living Well in a Political Community See Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford: Oxford University Press, 1990). Julia Annas, The Morality of Happiness (New York: Oxford University Press, 1993), p. 304. Seneca, On Leisure, trans. Timothy Chandler, Colloquy 23 (2012), p. 218. This chapter is based on my article “Virtue Ethics and Political Authority.” See Tristan J. Rogers, “Virtue Ethics and Political Authority,” Journal of Social Philosophy, Vol. 51, No. 2 (Summer 2020), pp. 303–21. Eudaimonia is usually translated in English as “happiness” or “human flourishing,” and I will occasionally use these equivalent terms or simply “living well.” The ancient outliers are the hedonist Epicureans and Cyrenaics. For a recent defense of the idea that well-being requires the virtues see Neera K. Badhwar, Well-Being: Happiness in a Worthwhile Life (Oxford: Oxford University Press, 2014). For discussion of the diversity and breadth of contemporary virtue ethics see Christine Swanton, Virtue Ethics: A Pluralistic View (Oxford: Oxford University Press, 2003). Aristotle, Nicomachean Ethics, 1095a5. See Julia Annas, Intelligent Virtue (Oxford: Oxford University Press, 2011), Ch. 3. See John B. Davis, “The Conception of the Socially Embedded Individual,” in The Elgar Companion to Social Economics, ed. John B. Davis and Wilfred Dolfsma (Cheltenham, UK: Edward Elgar Publishing, 2008), pp. 92–105. See also Julia Annas, “Virtue and Duty: Negotiating Between Different Ethical Traditions,” The Journal of Value Inquiry, Vol. 49 (2015), pp. 605–18. See Cicero, On Duties, trans. Walter Miller, Loeb Classical Library (Cambridge, MA: Harvard University Press, 1997), Book One, Sections 107–17. See Aristotle, Nicomachean Ethics, 1094a–1094b10. For a general defense that this charge is misguided see Ronald Beiner, What’s the Matter with Liberalism? (Berkeley, CA: University of California Press, 1992), pp. 45–8. See Annas, The Morality of Happiness, pp. 27–34. Aristotle, Nicomachean Ethics, 1095a18. For more recent philosophical work exploring the nature of happiness and well-being, see James Griffin, Well-Being: Its Meaning, Measurement, and Moral Importance (Oxford: Oxford University Press, 1984); L.W. Sumner, Welfare, Happiness, and Ethics (Oxford: Oxford University Press, 1996); Dan Haybron, The Pursuit of Unhappiness (Oxford: Oxford University Press, 2008); Fred Feldman, What Is This Thing Called Happiness? (Oxford: Oxford University Press, 2010); Daniel C. Russell, Happiness for Humans (Oxford: Oxford University Press, 2013). Henry Sidgwick, The Methods of Ethics, 7th ed. (Indianapolis, IN: Hackett Publishing, 1981 [1874]), Bk. 1, Ch. 9. Gerald Gaus, The Order of Public Reason (Cambridge: Cambridge University Press, 2011), p. 7 (emphasis added). I follow here Julia Annas, “Why Virtue Ethics Does Not Have a Problem with Right Action,” in Oxford Studies in Normative Ethics, Vol. 4, ed. Mark Timmons (Oxford: Oxford University Press, 2014), pp. 13–33. In this sense, we are following Elizabeth Anscombe’s recommendation that moral philosophers jettison the special notion of “moral obligation” and instead use virtue-terms. See Elizabeth Anscombe, “Modern Moral Philosophy,” in The Collected Philosophical Papers of G.E.M. Anscombe: Vol. 3. Ethics, Religion, and Politics (Oxford: Blackwell, 1981), p. 29. See Thomas Christiano, “The Authority of Democracy,” The Journal of Political Philosophy, Vol. 12, No. 3 (2004), pp. 277–80.

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22. The concept “moral power” comes from Wesley Hohfeld’s influential analysis in Wesley Hohfeld, Fundamental Legal Conceptions (New Haven, CT: Yale University Press, 1919). 23. I follow here Michael Huemer, The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey (London: Palgrave Macmillan, 2013), Ch. 1. 24. I set aside here the problem of noncitizen resident obligations. 25. Following A. John Simmons’ influential analysis, this is known as “the particularity requirement.” See Christopher Heath Wellman, “Political Obligation and the Particularity Requirement,” Legal Theory, Vol. 10 (2004), pp. 97–115. 26. Content-neutrality need not be absolute. There can be limits to political obligation. But the reasons why one is obligated should not derive primarily from the content of the law, since one might have a moral obligation to do what the law requires even if there was no law, and hence no political obligation. 27. Jean-Jacques Rousseau, The Social Contract, trans. Maurice Cranston (London: Penguin Classics, 1968), p. 159 [1762]. 28. Charles Larmore, The Morals of Modernity (Cambridge: Cambridge University Press, 1996), Ch. 1. But see also Andre Rosler, Political Authority and Obligation in Aristotle (New York: Oxford University Press, 2005). 29. Anscombe, “Modern Moral Philosophy,” p.  26, and “On the Source of the Authority of the State,” p.  134. Both republished in Anscombe, The Collected Philosophical Papers of G.E.M. Anscombe: Vol. 3. Ethics, Religion, and Politics. 30. Drawing on work by T.M. Scanlon and Stephen Darwall, Mark LeBar argues that eudaimonists can incorporate something like the Kantian idea of respect for persons. See Mark LeBar, “Virtue Ethics and Deontic Constraints,” Ethics, 119 (2009), pp. 642–71. 31. David Hume, “Of the Original Contract,” in Essays: Moral, Political, and Literary (Indianapolis, IN: Liberty Fund, 1987 [1752]), pp. 465–87. 32. Charles Taylor, “The Validity of Transcendental Arguments,” Proceedings of the Aristotelian Society, Vol. 79 (1978–9), p. 164. 33. Anscombe, “On the Source of the Authority of the State,” p. 128. 34. See Annas, “Virtue and Duty: Negotiating Between Different Ethical Traditions,” op cit. 35. Ibid., p. 614. 36. Anscombe, “On the Source of the Authority of the State,” p. 139. Anscombe attributes the idea to Aristotle. See Aristotle, Metaphysics, trans. C.D.C. Reeve (Indianapolis, IN: Hackett Publishing, 2016), 1015a. 37. These are two parts of Hegel’s three-part division between state, civil society, and family. See G.W.F. Hegel, Outlines of The Philosophy of Right, trans. T.M. Knox (Oxford: Oxford World Classics, 2008 [1820]), Section 3. 38. Aristotle, Nicomachean Ethics, 1103a30 (translation slightly modified). 39. P.F. Strawson, “Social Morality and the Individual Ideal,” Journal of the Royal Institute of Philosophy, Vol. 36, No. 136 (January 1961), pp. 6–7. 40. Aristotle, Politics, trans. C.D.C. Reeve (Indianapolis, IN: Hackett Publishing, 1998), 1252b25. 41. The Homeric metaphor, sometimes called a “Ulysses Contract,” is used by Michael C. Munger and Kevin M. Munger in Choosing in Groups: Analytic Politics Revisited (Cambridge: Cambridge University Press, 2015), p. 33. 42. See Jean Hampton, Political Philosophy (Boulder, CO: Westview Press, 1998), p. 77. 43. Daniel C. Russell, “What Virtue Ethics Can Learn from Utilitarianism,” in The Cambridge Companion to Utilitarianism, eds. Ben Eggleston and Dale E. Miller (Cambridge: Cambridge University Press, 2014), p. 268.

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44. Christopher Heath Wellman and A. John Simmons, Is There a Duty to Obey the Law? (Cambridge: Cambridge University Press, 2005), p. 136. 45. Ibid., p. 140. 46. Ibid. 47. Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), p. 206. See also, John Horton, Political Obligation, 2nd ed. (Basingstoke: Palgrave Macmillan, 2010), Ch. 6–7, and Samuel Scheffler, “Membership and Political Obligation,” Journal of Political Philosophy, Vol. 26, No. 1 (2018), pp. 3–23. 48. Michael O. Hardimon, “Role Obligations,” The Journal of Philosophy, Vol. 91, No. 7 (July 1994), pp. 333–63. 49. Thomas Hobbes, Leviathan (London: Penguin Classics, 1985 [1651]), Ch. 21, para. 10. 50. See Roger Scruton, The Soul of the World (Princeton, NJ: Princeton University Press, 2014), pp. 89–95. 51. Stephen Nathanson, Patriotism, Morality, and Peace (Lanham: Rowman & Littlefield, 1993), pp. 34–5. 52. See Roger Scruton, The Meaning of Conservatism (South Bend, IN: St. Augustine’s Press, 2002), pp. 24–6. See also Alasdair MacIntyre, “Is Patriotism a Virtue?” in Debates in Contemporary Political Philosophy: An Anthology, eds. Derek Matravers and Jonathan E. Pike (London: Routledge, 2003), pp. 286–300. 53. This is sometimes called a duty of fairness, where the idea is that if we’re all playing the same game, then we are all bound by the same rules. Some philosophers, such as George Klosko, have tried to ground political obligation in the duty of fairness, but in my view, it’s secondary to membership because the duty of fair play arises as a consequence of group membership; it does not itself explain the normative force of group membership. See George Klosko, The Principle of Fairness and Political Obligation (Savage, MD: Rowman & Littlefield, 1992), Ch. 2. 54. See Adam Smith, The Theory of Moral Sentiments (Indianapolis, IN: Liberty Fund, 1982 [1759]), Part VI, Sec. II, Chap. III. 55. The actual threshold obviously need not be everyone, but enough to maintain the stability and functioning of the group, the exact proportion of which will be highly dependent on circumstance. 56. Simmons makes this objection in A. John Simmons, Justification and Legitimacy (Cambridge: Cambridge University Press, 2000), pp. 65–71. 57. Christopher Heath Wellman, “Associative Allegiances and Political Obligations,” Social Theory and Practice, 23 (1997), pp. 184–8. 58. The most famous of these is the work of Stanley Milgram on deference to authority. See Thomas Blass, The Man Who Shocked the World: The Life and Legacy of Stanley Milgram (New York: Basic Books, 2004). 59. Rosalind Hursthouse, “After Hume’s Justice,” Proceedings of the Aristotelian Society, Vol. 91 (1990–1991), p. 242. 60. Mark LeBar, “Virtue and Politics,” in The Cambridge Companion to Virtue Ethics, ed. Daniel C. Russell (Cambridge: Cambridge University Press, 2013), p. 272. 61. Smith, The Theory of Moral Sentiments, Part VI, Section II, Ch. II. 62. Aristotle, Politics, 1261a30–1261b5; Aristotle, Nicomachean Ethics, 1132b32– 1134a30, 1163b32–1164a2. 63. We speak of the office of the presidency, which is distinct from any particular president. 64. Russell, “What Virtue Ethics Can Learn from Utilitarianism,” p. 268. 65. Plato, Crito, in Complete Works, ed. John M. Cooper (Indianapolis, IN: Hackett Publishing, 1997), pp. 37–48. 66. Huemer, The Problem of Political Authority, p. 11. 67. Horton, Political Obligation, p. 133 (first emphasis added, otherwise original).

3

Living Well and the Fact of Reasonable Pluralism

We have so far explored Aristotle’s claim that the polis “comes to be for the sake of living, but it remains in existence for the sake of living well.”1 Is Aristotle’s claim compatible with liberal democracy? Can there be a virtue politics of liberalism? If liberalism means not prioritizing a substantive view of the good, the answer may be a simple “no.” After all, eudaimonist virtue ethics looks to be perfectionist in the sense of prioritizing human excellence (i.e., the virtues) in the realm of politics.2 But there are other possibilities worth exploring that reconcile virtue and liberalism, and in doing so, illuminate both the political applications of virtue ethics and the moral foundations of liberalism. One such possibility, as I will argue, is that liberal democracy depends on virtuous citizens, who share membership in a political community, within which there are shared conceptions of the good. Contemporary political philosophy is dominated by various strands of liberal political theory.3 In some measure, this is because the societies for which political philosophers take themselves to be theorizing are, for the most part, liberal democracies. But the theory of liberalism faces a crisis of purpose in relation to the practice of liberal democracies. This crisis pits liberalism’s avowed neutrality about the good against the social unity necessary for any stable political order. Liberalism’s toleration of different views of the good has been a powerful force for individual expression, freedom, and economic prosperity. But that success has not come without costs, including increasing political polarization, diminishing social and institutional trust, and mounting social and economic inequalities. As Alexis de Tocqueville warned during his famous visit to America, the dynamism of liberalism may—in the long run—undermine the institutions, mores, and culture that are the prerequisites for liberalism.4 As Patrick Deneen confidently puts it, “[liberalism] has failed because it has succeeded.”5 Paradoxically, liberalism may be undone by its very success. The Tocqueville-style critique of liberalism suggests that a society can afford to be neutral about the good only when it can rely on sources of social unity, which liberalism itself does not produce. What are these

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sources of social unity? The dominant answer of the last 50 years has been some form of political liberalism. Following John Rawls’s late work, political liberals argue that the social unity of liberalism resides in an overlapping consensus of diverse philosophical, moral, and religious doctrines, on a purely political (i.e., nonsectarian) conception of justice.6 According to political liberals, liberalism maintains its neutralism about the good without sacrificing social unity by seeking a consensus among reasonable persons who can endorse—from their own perspectives— shared principles of justice. What I will call “virtue-political” liberalism takes a different route. While any liberalism worthy of the name will, in some sense, tolerate human difference, virtue-political liberalism holds that liberalism’s social unity requires a shared good for the sake of which citizens cooperate as members of the same political community. The possibility of the individual good depends on a shared good around which the political community unites. While this shared good need not be the explicit aim of political institutions, a shared understanding of what lives are worthwhile secures social unity and enables us to live well together, even while we may live differently. Given the conditions of modernity, so-called perfectionist liberalisms have seemed implausible to political liberals, even antiliberal. After all, modernity is characterized by free and open societies, where individuals are free to pursue their own good in their own way, leading to diverse, reasonable, but ultimately, irreconcilable conceptions of the good.7 This is what Rawls calls “the fact of reasonable pluralism.”8 In short, political liberals argue that because reasonable people do not agree about the good life, a consensus about the good cannot be the source of liberalism’s social unity, and therefore eudaimonist virtue ethics, if it ventures into political philosophy, is really an alternative to liberalism, not a fellow traveler.9 This chapter argues that it is false that reasonable pluralism undermines virtue-political liberalism. On the contrary, as I will argue, virtue-political liberalism is not only compatible with reasonable pluralism, but a shared good is a precondition for the very possibility of reasonable pluralism. This shared good, as I shall describe it, has both “thin” and “thick” elements. The thin element is the eudaimonist conception of living well, which, as I explained in the previous chapter, consists in the exercise of practical wisdom, with and within one’s particular natural and social circumstances. The thick element(s) are derived from social membership in a political community, the source of social unity within liberal democratic societies. Social membership entails a common set of institutions, practices, and norms, undergirded by a shared territory, history, and set of traditions, that shape and constrain the public sphere within which persons pursue substantive views of the good life. Such substantive views, I argue, are ultimately derived and constrained by shared ideas of the good among members of the same political community.

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The Aristotelian Idea Aristotle claims that the end or purpose [telos] of a political community is to enable its citizens to live well, which, as he argues in his ethical works, requires the virtues.10 Call that “the Aristotelian Idea.” The claim does two things. First, it identifies the task or function which forms the basis of the authority of the state: enabling the good life. Political authority, as I have argued, is derived from the necessity of political institutions for virtuous agency, which is required for living well.11 Second, the Aristotelian Idea provides a measure to evaluate the legitimacy of a state in accordance with how well it performs this task. Political legitimacy, as I have argued, depends on the extent to which a political state allows reforms that serve its citizens’ joint interests in living well, without thereby sacrificing the social order that makes living well possible in the first place. The Aristotelian Idea is reminiscent of Rawls’s idea that “a society is a cooperative venture for mutual advantage.”12 Both ideas reflect an ideal of social cooperation. But whereas Rawls’s social contract theory emphasizes the instrumental value of social cooperation, tempered by constraints of justice (as fairness), Aristotle’s focus is on the value of social cooperation itself. Social cooperation is valuable for its own sake because of the role of sociality in the human good. We only live well as political animals in a political community. Thus, the political community is not just an efficient social arrangement for securing the individual good; it is the source of whatever values are possible within its domain. In contrast, Rawls’s instrumental notion of “mutual advantage” is available in many kinds of social arrangements, and among many kinds of people, who may cooperate for mutual benefit. But only in a political community do fellow citizens live well together. This sense of togetherness or fellow feeling adds something that cannot be reduced to mere advantage. This conception of social cooperation is illustrated in Book Two of Plato’s Republic.13 There, Socrates and his interlocutors attempt to define the just person, and they do so by constructing an ideal state. Without the usual Socratic exchange of failed proposals, the originating principle of the city [polis] is promptly agreed upon: because we cannot individually meet our needs—we are not self-sufficient beings—we must cooperate. Hence, the political community originates out of need and mutual dependence. Socrates and company continue by cataloguing these needs and the ways in which the ideal city will meet them. After covering the basics such as food and shelter, they consider the lifestyle that the city’s inhabitants will enjoy. They will “build themselves houses,” “provide meal from their barley and flour from their wheat,” “[serving] noble cakes and loaves . . . reclined on rustic beds,” and will “feast with their children.”14 Glaucon then interrupts Socrates: “No relishes apparently .  .  . for the men you describe as feasting.”15 Socrates obliges to include delicacies

42 Living Well in a Political Community such as olives and cheese. But Glaucon remains skeptical, asking whether we should expect anything less for a city of pigs.16 Glaucon’s seemingly flippant comment raises an important question: What is the purpose of a political community? As Socrates and his interlocutors recognize, once certain kinds of needs are admitted into the city, we are no longer considering the origin of the city per se, but the origin of the luxurious city, that is, a city in which nonessential needs are produced and satisfied. Citizens of the luxurious city must defend their goods from external threats. They must also beware of internal divisions, since so-called luxuries are the kinds of goods over which fellow citizens compete. Taken to its extreme, this leads to civil strife [stasis], threatening to undermine the very foundations of social cooperation. Thus, social cooperation is a double-edged sword. We cooperate to meet our needs, but competition over scarce goods can lead to civil strife. This is the dynamic Rawls recognized when he observed that a society is “typically marked by a conflict as well as by an identity of interests.”17 There is an identity of interests, Rawls observes, because we must cooperate to meet our mutual needs. But there is a conflict of interests because cooperation invites competition over the enjoyment of scarce goods and disagreement about how they are produced and distributed. What, then, is the purpose of the political community? Presumably, as Socrates contends, to meet human needs. But, giving Glaucon his due, what distinguishes a city fit for pigs from a city fit for human beings? Adam Smith provides part of an answer in The Wealth of Nations.18 Writing many centuries later, Smith echoes Plato’s early account of the benefits of social cooperation from The Republic, citing the division of labor as the principal cause of the wealth of nations.19 Smith’s original contribution, however, was his account of why we divide labor. We divide labor, according to Smith, not just in order to meet our needs with a view to that “general opulence,” but because of “a certain propensity in human nature which has in view no such extensive utility; the propensity to truck, barter, and exchange one thing for another.”20 We divide labor, according to Smith, not just because it is more productive. Dividing labor just is what we do as human beings. It’s part of human nature. This, then, is a way in which the city of human beings is not the city of pigs. Cooperating for mutual advantage, even when not foreseen or intended by any individual person, gives us a material and social existence that is different from other species. But does Glaucon still have a point? He seems to have been interested not so much in how our material and social circumstances differ from other species, but how our way of life is distinctly manifested in our uniquely human desires and needs. Producing abundant wealth cannot be an end in itself. Smith himself recognizes this when he poses the following question in The Theory of Moral Sentiments: “What are the advantages which we propose by that great

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purpose of human life which we call bettering our condition?”21 Despite his capitalist reputation, Smith never mistook bettering our condition for a moral purpose itself. Aristotle makes a similar assumption that the good life must be distinctly human.22 Unlike Plato and Smith, Aristotle focuses less on the division of labor as such and more on the development of the political community out of earlier forms of human association (e.g., the male/ female sex-pairing, the household, village, etc.), defining the polis as “the complete association, from several villages . . . which at once reaches the limit of total self-sufficiency.”23 Aristotle, as we have seen, is also explicit about the purpose of social cooperation: the polis “comes to be for the sake of living, but it remains in existence for the sake of living well.”24 This is the Aristotelian Idea. The Aristotelian Idea fits well with Smith’s point about human nature. Aristotle traces our ability to cooperate to our capacity for speech. Speech allows us to communicate pleasures and pains, benefits and burdens, justice and injustice.25 Samuel Fleischacker has argued that Smith’s account of economic exchange can also be understood in terms of our ability to speak. For instance, Smith writes, “Nobody ever saw a dog make a fair and deliberate exchange of one bone for another with another dog.”26 Smith’s point, according to Fleischacker, is: Without contracts, without discussion, self-interested animals kill each other; with discussion, they can cooperate instead. Only animals that talk can realize how exchange can be a win-win game and can construct a framework—of justice and contract—within which they can rely on each other[’s] fair play.27 Thus, Smith’s “propensity to truck, barter, and exchange” can be broadened to include Aristotle’s “impulse [horme] towards this kind of association [polis],” which “exists by nature in all men.”28 When we cooperate, therefore, one story we can tell is that we are acting to further our mutual (economic) needs. That’s Plato’s contribution from The Republic, summed up in Rawls’s dictum that “a society is a cooperative venture for mutual advantage.”29 But the other half of the story, brought out by Smith and Aristotle, is that we also cooperate to meet our social needs, which are central to the human good. Cooperation satisfes our nature as social beings. The Aristotelian Idea may be an attractive ideal of social cooperation. But is it feasible? Doubts may begin to surface once we interpret the claim that the purpose of the political community is to enable its citizens to live well, in conjunction with Aristotle’s own conception of living well, which is to live virtuously with an adequate supply of external goods in a complete life.30 Aristotle, of course, assumes that a political community

44 Living Well in a Political Community will be characterized by agreement about the good life. That assumption may seem reasonable in the abstract. But once we insist that everyone in a political community must agree with Aristotle’s own preferred conception of living well, the Aristotelian Idea begins to lose its luster, at least if maintained as an ideal to guide modern pluralistic liberal democracies.

The Fact of Reasonable Pluralism Evidently, then, the Aristotelian Idea depends on some agreement about the good, or else members of the same political community could not meaningfully cooperate for the sake of living well. But what is the nature of this agreement? While the Aristotelian Idea was plausible (even obvious) to premodern readers of Aristotle’s practical philosophy, contemporary philosophers, such as Charles Larmore, have claimed that neo-Aristotelian political philosophy is incompatible with modernity.31 For modern politics is characterized by free and open societies, where citizens are given broad latitude to define and live out the good life for themselves. The nexus of the problem is what Rawls calls “the fact of reasonable pluralism—the fact that a plurality of conflicting reasonable comprehensive doctrines, religious, philosophical, and moral, is the normal result of its [a democracy’s] culture of free institutions.”32 And thus, according to Rawls, it is “only by the oppressive use of state power” that something like Aristotle’s ideal state could be realized and maintained.33 Hence, neo-Aristotelian political philosophy is not just hopelessly anachronistic and unmodern; it is unworkable and antimodern. Such a conclusion is even embraced by some neo-Aristotelians, such as Alasdair MacIntyre, who concedes “that modern politics cannot be a matter of genuine moral consensus. And it is not. Modern politics is civil war carried on by other means.”34 Other neo-Aristotelians have attempted to meet the challenges of modernity and reasonable pluralism by bringing out the pluralistic aspects of Aristotle’s own conception of living well.35 But, as Larmore has pointed out, the issue is much deeper than value monism vs. pluralism.36 According to Larmore, the insight of political liberals is not so much Isaiah Berlin’s defense of value pluralism,37 but rather that “[o]n matters concerning the meaning of life, discussion among reasonable people has seemed to liberals to tend naturally not toward consensus, as Aristotle thought, but rather toward controversy.”38 The issue is that we do not simply disagree about the nature of the good, for instance, whether it is one or many; we disagree about whether reason is authoritative in determining the good. This is a second-order disagreement, about what it would even mean to agree about the good. Thus, according to Mark LeBar, “[t]he issue [for political liberals] is not one of how much latitude one has in choosing the terms of one’s own life. Instead it is who gets to decide what that latitude is.”39 Aristotle presumes the political community has a role to play in deciding that question, whereas, it is alleged, political liberalism denies this.

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According to Rawls, then, the problem of political liberalism, which is a consequence of the fact of reasonable pluralism, is “[h]ow is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines?”40 Rawls’s formulation of the problem is a classic version of the perennial political problem of reconciling freedom and order. For, without some degree of freedom, a political community becomes oppressive of the human capacity for reason. But without order, there is no political community in which to exercise freedom through reason. Put another way, the diversity that freedom guarantees must have some basis in social unity, otherwise there will be no political order and no freedom. This is because, as Aristotle puts it, “a citystate consists not only of a number of people, but of people of different kinds . . . things from which a unity must come differ in kind.”41 There is no political community without the coming together of human difference. But the political community cannot be maintained without unity, and there cannot be unity unless different kinds of persons come together for the sake of living well. How, then, can liberalism respect the freedom required by the human capacity for reason, which leads to a pluralistic society, while maintaining the order of the political community, which is the source of social unity and the virtues?

The Shared Good of Living Well The foregoing question poses a dilemma for virtue-political liberalism: In what sense does a political community require a shared conception of the good? On the one hand, if this shared good must be a substantive view of the good defended by a philosopher (e.g., Aristotle), then there is a straightforward clash with liberalism, since liberalism denies that the political state should take an explicit position on substantive views of the good. On the other hand, one may appeal to a thin view of the good, that is, one that is compatible with reasonable pluralism and state neutrality. But this may not be a real alternative to political liberalism, since virtue is doing little (if any) work. So, it seems, neo-Aristotelians must choose between virtue and liberalism. If virtue is the dominant element, liberalism must go, whereas if liberalism is the dominant element, virtue must go. In what follows, I take on the first horn of the dilemma by developing the thin element of the shared good, which demonstrates the compatibility between eudaimonism and reasonable pluralism. I will then pose a problem faced by any account of social unity and political order: the problem of faction and fragmentation. My response to this problem takes on the second horn of the dilemma by arguing that virtue-political liberalism has a better solution to the problem of faction and fragmentation than political liberalism. This will also fill in the “thick” elements of the shared good, thereby presenting a clear alternative to political liberalism, while reconciling virtue and liberalism.

46 Living Well in a Political Community In Chapter 2, we saw that practical reasoning requires a final end, and eudaimonists identify the concept of a final end with the concept of eudaimonia or living well. In this sense, living well is a strictly formal concept, and so to claim that the political community is for the sake of living well is to do no more than make the parallel political claim of the first line of Aristotle’s Nicomachean Ethics: “Every skill and every inquiry, and similarly every action and rational choice is thought to aim at some good; and so the good has been aptly described as that at which everything aims.”42 Similarly, the business of politics is thought to aim at some good, and so living well is whatever that good turns out to be. Now, although Aristotle cites broad agreement on living well as the highest good, he points out that people “disagree about substantive conceptions of happiness [i.e., living well], the masses giving an account which differs from that of the philosophers.”43 Some say that living well is the same as pleasure; others wealth; still others say it’s honor. In other words, there is agreement about living well as a placeholder for the formal concept of the good life, living well as the final end, but disagreement about the content of what living well consists in as a substantive view of the good. We should, therefore, distinguish between the concept of living well as a good life as a whole, from different conceptions of living well that specify its content.44 How are we to make headway on moving from the formal concept of living well to a substantive conception of living well? For living well must both be (a) something that can be the end of practical reasoning and (b) plausible as a recognizably good human life for the person living it.45 One way to proceed, as Aristotle does, is to judge the latter in terms of the former. For instance, many people think that living well is a life in which you make as much money as possible. Certainly, we recognize the wealthy life as a nice life, one full of opportunity, comfort, social standing, power, and so on. However, wealth, because it’s an instrumental good, cannot serve as the end of practical reasoning. It cannot structure practical deliberation. We try to obtain wealth not for its own sake, but because of the kinds of opportunities and material comfort it affords. Living well, then, must consist in something that is good for its own sake. Aristotle goes through several more so-called “formal constraints” on living well into which we need not fully enter.46 One is just the point made earlier, that living well should be something distinctly human, given general facts about human nature. Aristotle’s own view is that living well consists in virtuous activity with a sufficient level of external goods (e.g., wealth, health, opportunities, etc.) in a complete life. Virtue seems to do justice to the sense in which living well is about what you do or the kind of person you are. The virtuous person acts well for its own sake. This is the theoretical pull of virtue. But unlike the Stoics, who argued that virtue is sufficient for living well, Aristotle feels the intuitive pull that a life lacking important external goods, such as health and wealth, is seriously deficient in some respect. We have a hard time admitting that this kind of life really is good for the person living it.

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So, it seems, a plausible conception of living well should balance theoretical against intuitive considerations. This is not the place to settle that debate, however.47 While the concept of living well is plausibly what we are interested in when we talk about the telos of politics, it is far from obvious that political theorizing can determine a priori the best conception of living well. What, then, is the sense in which the purpose of the political community is to enable its citizens to live well? Is virtue hopelessly indeterminate and controversial as an element in the good life? Or is there a sense of virtue that politics can serve? One reason for not expecting substantive views of the good to rule in politics is Aristotle’s old bit of counsel not to look for the same degree of precision in all domains of enquiry. Thus, according to Aristotle, we “must consider the soul [psyche], and consider it with a view to understanding virtue,” but “just to the extent that is required by the inquiry.”48 That is, we must consider human nature, and that should tell us something about living well as a human being in a political community. But can anything substantive be said on behalf of the Aristotelian view that the good life—whatever it is—requires the virtues? In fact, positive support for this view is to be found in an unsurprising place. Having developed the formal concept of living well as the final end of practical reasoning, Aristotle notices that “saying that happiness [eudaimonia] is the chief good sounds rather platitudinous, and one might want its nature to be specified still more clearly.”49 This is the beginning of Aristotle’s so-called function argument. Consonant with what I’ve argued, the thought is that living well ought to have something to do with human nature. Aristotle’s conclusion at this stage of the argument is that happiness is an “activity of the soul in accordance with virtue.”50 It is noteworthy, however, that Aristotle only claims that this is an “outline of the good.”51 He has not yet specified his account of the moral and intellectual virtues, undertaken in the other books of the Nicomachean Ethics, or considered the role of external goods in happiness, undertaken in the remainder of Book One, or for that matter, reconsidered the highest good as consisting in theoretical contemplation in Book Ten.52 Hence, the sense of “virtue” in the phrase “activity of the soul in accordance with virtue” can be understood as whatever virtues (or excellences) are definitive of human nature. The claim is not that one particular way of life is best for human beings, but rather that living well consists in living a certain kind of life in accordance with the virtues characteristic of that life. Earlier I characterized living well as the exercise of practical wisdom in one’s socially embedded circumstances.53 This is, in fact, a thin view of the good, since practical wisdom may be exercised in different ways, by different persons, and in different circumstances, to generate very different kind of lives that are nevertheless equally good because they are directed by practical wisdom.54 There is, then, no reason why this view should clash with reasonable pluralism.55 For, the claim is not that one particular way of life is best, but rather that living well consists in living a certain

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kind of life, one directed by practical wisdom generally, and realized in one’s particular circumstances. This allows for different views of living well (and competing conceptions of specific virtues), while maintaining Aristotle’s claim that living well is the purpose of a political community, and that living well should (at least) be understood in terms of virtue. This leaves members of a political community free to live according to their own exercise of practical wisdom, thereby forging different forms of the good life in a way that is compatible with the lives of others because they share the same moral purpose. Such disagreement is tolerable when we have the same abstract goal. After all, a liberal order is only a political system that enables people to live well; it is not itself the solution.

The Fragility of Reasonable Pluralism While it is true that liberal democracies, as we have known them, have been characterized by reasonable pluralism—a fact with which political philosophers must contend—it would be a mistake to take the fact as inevitable. Rawls, for instance, writes that “[t]his diversity of doctrines . . . is not a mere historical condition that will soon pass away; it is . . . a permanent feature of the public culture of modern democracies.”56 There is some truth in Rawls’s description, as it stands, but it is only partially true because, while reasonable pluralism might be a permanent feature, given the public culture of liberalism, that public culture itself is far from permanent. Indeed, in the view of history, it looks like a strange anomaly, as the ordinary course of politics is conflict (often violent) over rival visions of human life in conditions of privation, not peaceful toleration amid general and widespread prosperity. For this reason, merely accommodating the fact of reasonable pluralism is not enough. We must ask: What unifies the public culture of liberalism against the ever-present dangers of faction and fragmentation? The threat of fragmentation was foremost in the minds of the ancient critics of democracy, who worried that class-based factions would manipulate public sentiments and capture the public sphere to promote their own special interests to the detriment of the common good.57 The traditional bulwark against this type of factionalism, as Aristotle pointed out, is a strong middle class that prevents the poor from plundering the rich or the rich from dominating both classes.58 To the extent that liberal democracies have maintained a strong middle class, one might observe, they have been less prone to faction. But in recent times, which have been characterized by increasing economic and social inequalities, coupled with revolutionary technologies, the traditional economic bulwark against factionalism has been quickly crumbling. The new factionalism does not solely consolidate along economic lines either, as it might have during the heyday of capital vs. labor. It also increasingly encompasses social, cultural, and political identities: where one lives, one’s cultural background, and one’s political views.59

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If faction characterizes the self-interested pursuit of one group’s interests at the expense of the common good, fragmentation is the process by which society divides into such groups. Cultural fragmentation especially diminishes the strength of common bonds and thereby makes faction much more attractive to rootless citizens, who do not cease searching for communal sources of meaning, even while their communities wither. Put another way, fragmentation occurs when the individual pursuit of living well, which liberalism prizes, removes each individual from one another, so that only individual conceptions of the good remain and there is no generally recognized shared good, a result Charles Taylor calls “atomism.”60 Taken together, faction and fragmentation have two consequences. First, factionalism makes political action for the sake of a shared good impossible because politics becomes a weapon to wield over one’s enemies, rather than a procedure for mediating ordinary political disagreement and conflict. Second, fragmentation hollows out the very idea of a shared good, as individual conceptions of the good flourish at the expense of (or in opposition to) a shared good. How can liberalism avoid the threat of faction and fragmentation? Political liberals have sought to shore up reasonable pluralism by appealing to an “overlapping consensus” on a purely political conception of justice, to use Rawls’s terminology, or, in Larmore’s, “a minimal moral conception.”61 Rawls’s basic idea is to elicit a functioning overlapping consensus among citizens’ reasonable conceptions of the good on principles of justice—implicit in a political culture—that will regulate the basic structure of society and establish a public sphere of reasoning that, in principle, is accessible to and accommodating of everyone, regardless of their divergent (but reasonable) conceptions of the good. In this sense, as Larmore puts it, “[l]iberalism is the search for a minimal moral conception by which people can escape the rule of force and live together in political association, despite their enduring disagreements about the nature of the good life.”62 Liberalism is an agreement to disagree among people who nonetheless must live together. Public reason liberals, such as Gerald Gaus and Kevin Vallier, build on political liberalism’s basic idea to investigate whether the social and legal norms of liberal democratic societies can be publicly justified.63 As Vallier puts it in recent work, public reason liberalism “emphasizes the importance of justifying coercive law to multiple reasonable points of view.”64 The ultimate goal of public reason liberalism, according to Vallier, is to secure a “moral peace,” which is “a state of society with a high degree of justified social trust in institutions.”65 Without this justification, the directives we impose on one another through institutions “look like small-scale acts of war,” and in the long run, must undermine social trust.66 Thus, according to Vallier, we need some moral standard to distinguish the directives that contribute to a moral peace, and that moral standard is a principle of public justification.

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Rawls makes three assumptions about the bases of social unity, some of which are also shared by public reason liberals. The first is that social unity must be about justice, or some other overriding moral standard (e.g., public justification), which, for Rawls, is “the first virtue of social institutions.”67 Principles of justice “provide a way of assigning rights and duties in the basic institutions of society and . . . define the appropriate distributions of the benefits and burdens of social cooperation.”68 In this way, justice constrains the range of acceptable conceptions of the good. The second assumption, which is shared by public reason liberals, is that principles of justice (or social and legal norms) must be publicly justified to each member of society. In Rawls’s earlier work, this assumption is a natural outgrowth of his social contract theory, but in his later work takes the form of a requirement of respect and reciprocity derived from the democratic idea of free and equal citizens. The third assumption, which is connected to the second, is that social unity must not only achieve stability, but the stable and just society must be “stable for the right reasons,”69 achieving a “moral peace,” as Vallier puts it, meaning that the society is stable because its members can reasonably endorse it from their own moral perspectives. As a normative ideal, there is little to argue with in the vision of a good society that is stable because it can be endorsed from the perspective of each citizens’ conception of the good. But that vision falls short as an account of how social unity is actually achieved and maintained. While justice may (or may not) be “the first virtue of social institutions,” the first problem to solve in achieving social unity is the securing of political order, which is explicitly presupposed by Rawls and his followers, who presume the existence of a relatively cohesive and functioning liberal democratic order. As Bernard Williams puts it, the question of securing order “is ‘first’ because solving it is the condition of solving, indeed posing, any others.”70 We cannot reasonably ask what a just society would be like without first establishing that we are already living in a society with internally embedded ordering principles. Rawls, however, explicitly assumes that he is theorizing about a closed society with clearly defined members who are already engaged in a stable system of cooperation, which evidently does presume a stable political order. But only with the assumption of a stable political order does it make sense to ask whether a society’s institutions are just in some ideal sense. Or in the case of public reason liberals like Vallier, it is only when we have already secured peace that we can go on to ask whether it is a “moral” peace. But the latter is not a necessary condition of the former, and it is difficult to discern what it adds to what is already a considerable achievement. In other words, the existing social and legal norms of a society need not be publicly justified to serve their function, which is to stabilize social cooperation and secure social order by providing settled mutual expectations. The only requirement for political order is that shared norms of justice exist and function. Whether this minimal form of stability can be publicly justified may be

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an interesting question, but it is manifestly not an obstacle to the achievement of social unity itself. So, political liberals get things backward in describing the kind of social unity that is necessary to maintain reasonable pluralism. Whether public justification is possible under such conditions is not the central issue that confronts liberal democracies. The central issue is to uncover and describe the embedded principles and norms that have made reasonable pluralism a fact of liberal democracies, so that ideas about justice and the good that diverge too much from these principles and norms do not undermine the long-run stability of liberal democracy. Put another way, the problem is not to find a common denominator or point of view among diverse conceptions of the good, but to determine the conditions—philosophical, social, and economic—that have allowed people with diverse views of the good to peacefully coexist as members of the same political community. The foregoing suggests that while reasonable pluralism might be inevitable, given the public culture of liberal democracies, a cohesive people (the “demos” in a democracy), who inhabit that public culture, is not. For if a liberal democratic people exists, then there must already be some functioning norms of justice that secure social trust, otherwise the society will succumb to faction and fragment. But if a people does not exist, then it is impossible for norms of justice to be publicly justified, since we cannot speak of the entity that is the subject of “public” reasoning. In other words, the very notion of public justification presupposes a sufficient degree of social trust without which members of society would not feel obliged to justify anything to one another. Where there is no people, there can be no public justification, and where there is a people, public justification is unnecessary. This analysis is structurally analogous to David Hume’s classic criticism of social contract theory.71 Hume, recall, argued that either there is no established society (i.e., in the state of nature), in which case the very idea of a social contract is meaningless because the act of a covenant presumes an ongoing social practice of promising; or there is an established society, in which case to speak of a social contract is superfluous, since the social contract is intended to secure the very social order that an established society has achieved. Since public reason liberalism developed out of Rawls’s political liberalism, which itself developed out of social contract theory, it is not surprising that the same dilemma applies to public reason liberalism. For if reasonable pluralism characterizes the people of some political society, then there must be some already functioning social and legal norms that secure social trust, and public justification is unnecessary. But if reasonable pluralism does not already characterize some political society, and there are no corresponding social and legal norms, then public justification is impossible. Hume’s insight about the importance of an established society in settling social norms and expectations shows that the fact of reasonable

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pluralism—far from an inevitability—is a fragile achievement whose existence presumes a cohesive “people” that, despite their differences, abide by such norms and expectations in their daily interactions with one another. As Roger Scruton puts it, “if people are in a position to decide in this way on their common future, it is because they already have one.”72 While the ancient view of politics, expressed in the Aristotelian Idea, may seem outdated, reasonable pluralism, if taken for granted, threatens to fragment the political community into warring illiberal factions, a danger that has noticeably augmented in recent years. This suggests that we need enough variation and diversity to retain a Millian form of individuality but not so much as to atomize and fragment the foundation of any political community: the people. Without the former, we betray the sense in which the political community is for the sake of living well (as Aristotle argues), whereas without the latter, we threaten to undermine the very basis of the political community, which is a shared concern for what is good.

Living Well as a Member of a Political Community We can now return to liberalism’s crisis of purpose: Can liberalism maintain its neutrality about the good without sacrificing social unity? Rawls writes in the introduction to Political Liberalism that “[t]o see reasonable pluralism as a disaster is to see the exercise of reason under the conditions of freedom itself as a disaster.”73 Such faith in the potential of human reason has been characteristic of the liberal tradition since the Enlightenment. But as the problem of faction and fragmentation makes clear, the Enlightenment ideal, echoed by Rawls, is only half true. While it may be true that reason can only be fully exercised in conditions of freedom, without social unity, the exercise of reason under conditions of freedom is very likely to result in disaster. Real freedom depends on social unity without which social order inevitably breaks down. Reasonable pluralism results from the exercise of reason in conditions of freedom, but it depends on a social unity that prevents the forces of faction and fragmentation. So, what prevents the forces of faction and fragmentation? I propose that the solution to this problem must be some concept of social membership, implying a set of pre-existing norms and obligations that apply to persons in virtue of their membership in a political community.74 Social membership presumes the existence of a “people” who cooperate in a political community for the sake of living well together. While it is possible, as Rawls does, to assume that we are dealing with a “closed society” with well-defined members, before we discuss justice, the critical issue is determining who belongs to the political community and what the duties and obligations of membership require. Yet, neither issue is much discussed by political liberals, who presume the existence of a society with clearly defined members, while focusing on what these ideal members owe each other, or what norms pass the test of public justification.

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There is a perennial conflict between freedom and order in the history of political philosophy, which is well-expressed in the work of the social contract theorists and their descendants. But freedom and order cease to be in conflict when freedom is understood within an institutional framework defined by norms of political membership. Paradoxically, there is no freedom without constraints. As Aristotle retorted to the extreme democrats of his time, “living in a way that suits the constitution should be considered not slavery, but salvation.”75 Living in accordance with the constitution means understanding and abiding by the institutions, practices, and norms of a political community, so that it is possible to pursue the good, a good, as I argued in the previous chapter, that would not exist in the absence of such an order. Like the connection between virtue and authority, membership in a political state, in which citizens live according to the norms of membership, reconciles freedom and order. Political membership allows persons to live well in conditions of order and freedom. For membership to play this role, however, it must first be defined. Membership in a political community requires a prepolitical social membership, e.g., the “We” in “We the People.”76 Members of the same political community must see themselves as bound together by shared territory, history, institutions, and a shared fate, so that an attack on (or threat to) the political community is experienced as an attack on everyone. A shared political (or national) identity is also what makes disagreement within a political community tolerable rather than tragic and potentially fatal. For disagreement is tolerable where there is a shared commitment to what is larger than the disagreement. For example, a marriage, if it is sound, can withstand deep disagreements and differences. But a disagreement about the very purpose of marriage is fatal. Similarly, a political community can tolerate—even thrive on— disagreement and difference. But if there is disagreement about the very purpose of the political community and what its terms of membership require, then pluralism, however reasonable, eventually becomes deleterious and destructive of any political community.77 Members of the same political community must be prepared to defend it from external and internal threats. External threats are more readily understood and acted upon because they tend to solidify the “us,” which is put in danger by an entity outside of the political community. Thus, naturally, a political community is most cohesive in periods during or immediately following war. But internal threats, arising from the forces of faction and fragmentation, threaten the very meaning and existence of a political community, driving a wedge between respect for the existing order, which ought to preserve a shared good, and what rival factions think good and just, which is often a privately defined (and therefore) privately enjoyed good. But unless the ordinary meanings and obligations that go along with membership are maintained, the political community

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risks undermining the stability of the society. In such difficult circumstances, Adam Smith writes, it often requires, perhaps, the highest effort of political wisdom to determine when a real patriot ought to support and endeavor to re-establish the authority of the old system, and when he ought to give way to the more daring, but often dangerous spirit of innovation.78 Smith’s observation about the “real patriot” further solidifes the contrast I have drawn between virtue-political liberalism and political liberalism. Political liberalism seeks agreement on a set of publicly justifed moral principles from a diverse set of mutually disinterested and rational individuals, whereas virtue-political liberalism looks to the existing established order, and attempts to uncover and describe the norms that regulate citizens who are united together by a pre-existing bond of social membership. Innovative or “justice-promoting” changes to the existing order are only acceptable when supported by the balance of practical wisdom, represented by the practical judgment of the good citizen, i.e., the virtuous or practically wise person.79 This is the conception of society Edmund Burke expressed in his well-known commentary on social contract theory: the state ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, calico or tobacco, or some other such low concern, to be taken up for a little temporary interest, and to be dissolved by the fancy of the parties. It is to be looked on with other reverence; because it is not a partnership in things subservient only to the gross animal existence of a temporary and perishable nature [cf. Glaucon’s city of pigs]. It is a partnership in all science; a partnership in all art; a partnership in every virtue, and in all perfection.80 Burke’s comments are naturally read in the context of the debate over the French Revolution, as a defense of the ancien régime. But Burke is also echoing the Aristotelian Idea that the purpose of the political community is the common practice of living well together as members of the same political society, in opposition to the newly ascendant rationalist political philosophy of the Enlightenment, which tried to establish a rational basis for an ideally just political order grounded in “the rights of man.”81 Burke’s disagreement with the rationalist political philosophers gets to the heart of our question about the bases of social unity. On Burke’s conception of society, as for virtue-political liberalism, social unity is secured and maintained by shared affections (not shared reasons) that naturally grow out of inhabiting the same territory under a common jurisdiction

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of laws, whereas, for the rationalist, as for political liberals, social unity requires some set of norms that can be justifed on the basis of reasons acceptable to each individual, according to their own moral judgments. Burke’s conception is supported by Aristotle who argues that a city-state [polis] is not a sharing of a common location, and does not exist [solely] for the purpose of preventing mutual wrongdoing and exchanging goods [e.g. pepper and coffee]. Rather, while these must be present if indeed there is to be a city-state, when all of them are present there is still not yet a city-state, but only when households and families live well as a community whose end is a complete and self-sufficient life.82 On Aristotle’s view, sharing a common location is not suffcient for a political community, since different groups can occupy the same location without constituting a single political community (e.g., Israelis and Palestinians). Neither are pacts preventing unjust behavior or treaties that secure mutually benefcial trade suffcient, since international states practice these things without constituting a single political community. Such associations Aristotle calls “alliances” whereby “law becomes an agreement ‘a guarantor of just behavior toward one another,’ . . . but not such as to make the citizens good and just,” a view of society reminiscent of social contract theory.83 What defnes a political community, then, are the necessary conditions of occupying the same location, exchanging goods, and having conventions about just behavior, but also the precondition of social membership, which is that members see themselves as living well together, that is, as one people who share basic views of justice and the good life. What are these shared ideas? Given the foregoing argument, a stable liberal democratic regime is held together by a shared set of institutions, practices, and relationships within which ideas about the good and justice are embedded, and out of which fellow citizens pursue living well together. As MacIntyre puts it, “the individual’s search for his or her good is generally and characteristically conducted within a context defined by those traditions of which the individual’s life is a part.”84 The job of the political philosopher, then, is not so much to articulate a substantive conception of the good (much less justice), but to simply point to ideas of justice and the good, already existing in a given political tradition that are the materials out of which we live well. This view of the political philosopher differs from the theorist-as-legislator model common in contemporary political philosophy, where a theory of justice (or the good) is proposed, and then theoretically applied as action-guiding for existing political societies.85 On the theorist-as-legislator model, for instance, it is typical for political philosophers to think of principles of justice in the rationalist manner as constructs of reason. But our existing traditions of justice

56 Living Well in a Political Community and the good, while perhaps in contact with something like “ideal justice,” depend on existing institutions. Habeas corpus, for example, to the extent that it captures an aspect of justice, does so because it has evolved as an integral part of the tradition of English common law on which American liberal democracy rests. So, while public reason liberals speak of publicly justified principles of justice, there are also the reasons of tradition, which members of the same political community share—even if they cannot be publicly justified.86 It is important that shared institutions are bounded by conditions of membership because this establishes where principles of justice apply. While institutions may expand or contract to include more members, the distinction between member and nonmember is essential because membership comes with a set of expectations and norms on which the stability of the community depends. Such norms are what allow us to participate in the institutions of society to forge a conception of the good in cooperation with other people. But these conceptions of the good must have some reference to the expectations and norms that go along with the terms of membership. In other words, the rights of membership come with responsibilities to fellow members. Otherwise, the individuality and freedom that membership in a political community promises will threaten the stability of the political order and raise the specter of faction and fragmentation. The importance of social membership to a stable political community explains the sense in which Aristotle proposes that the purpose of the political community is living well. For Aristotle, the political community does not exist for the sake of the good per se; it exists for the good of its members, and such a good is inseparable from the social context within which the members of a political community live because this is the context that, as I have argued, is a precondition for virtuous activity. This is why Aristotle, though he writes as an Athenian gentleman of property, has exerted such an influence on otherwise distant thinkers and time periods. Aristotle’s conception of the good is Athenian through and through, but the universal concept of living well may be filled in by the traditions and social practices of existing political communities.87 Where does this leave the Aristotelian Idea and reasonable pluralism? Larmore claims that Aristotelians “[trust] that reasonable people tend naturally to agree about matters of ultimate significance.”88 If that were true, it would support the claim that reasonable pluralism and virtuepolitical liberalism are incompatible. But is it? It’s plausible to think that Aristotle, like many ancient Greek philosophers, thought that ideally, reasonable (or virtuous) people would agree about the good. But this thought is not, in principle, different from the claim that in the ideally just society, reasonable people will converge on a conception of justice, a basic assumption of ideal political theory that even Rawls distanced himself from in his later work.89 Aristotle, on the other hand, is very clear that

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on matters of the good, “the masses [give] an account which differs from that of the philosophers.”90 And of course, if the last two thousand years of theorizing are any indication, the philosophers don’t agree either. This is because, as Aristotle put it, “[t]he spheres of what is noble and what is just . . . admit of a good deal of diversity and variation.”91 But we need not give up on the truth and conclude that they “exist only by convention and not by nature.”92 Ideas of the noble and the just grow out of the institutions, practices, and relationships that are constitutive of human nature. These are the conditions out of which liberal democratic societies have been characterized by the fact of reasonable pluralism. Thus, reasonable pluralism is not an obstacle to the Aristotelian Idea. Rather, the Aristotelian Idea—properly understood—is a precondition for the fact of reasonable pluralism.

Conclusion Political liberals see the challenge of modernity as finding a way to unite the disparate and fragmented conceptions of the good that separately flourish in our increasingly connected, yet divided societies. The search for social unity is the right one. However, that search should be recast, not in terms of justice, but in terms of living well. To the extent that we can conduct this search, it is because we are living off the resources of the past, which bequeathed an inheritance of a society characterized by reasonable pluralism. But to keep it thriving, we need to keep it alive. And the way to do that is to stop talking about theories of justice and start talking about what is good. But how should eudaimonist virtue ethics conceive of the relationship between living well and justice? After all, justice is not only a virtue of institutions, in the way that Rawls supposes, justice is also a virtue of character that is necessary for living well, and as I will argue, necessary for good institutions. The next chapter takes up the question of the relationship between justice as a virtue of institutions and justice as a virtue of character.

Notes 1. Aristotle, Politics, trans. C.D.C. Reeve (Indianapolis, IN: Hackett Publishing, 1998), 1252b25. 2. Even if it is a weak form of perfectionism. See Christine Swanton in her “Commentary on Michael Slote’s ‘Virtue Ethics and Democratic Values,’” Journal of Social Philosophy, Vol. 24 (1993), pp. 38–49. 3. Will Kymlicka, for instance, interprets the various strands of contemporary political philosophy as all, in some sense, committed to equality, cementing equality, not liberty, as the fundamental value of liberalism. See Will Kymlicka, Contemporary Political Philosophy: An Introduction, 2nd ed. (Oxford: Oxford University Press, 2002), pp. 1–5. 4. Alexis de Tocqueville, Democracy in America, ed. Eduardo Nolla, trans. James T. Schleifer (Indianapolis, IN: Liberty Fund, 2010 [1840]), Vol. II, Section 4, Ch. 6.

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5. Patrick Deneen, Why Liberalism Failed (New Haven, CT: Yale University Press, 2018), p. 3. 6. John Rawls, Political Liberalism, Expanded ed. (New York: Columbia University Press, 2005 [1993]), pp. 3–46. 7. Eric Mack calls the former clause the “ur-claim” of liberalism. See Eric Mack, “The Natural Right of Property,” Social Philosophy and Policy, Vol. 27, No. 1 (2010), p. 54. 8. John Rawls, “The Idea of Public Reason Revisited,” in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999 [1997]), p. 573. 9. Gerald Gaus, The Order of Public (Cambridge: Cambridge University Press, 2011), p. 8. 10. Aristotle, Politics, 1252b30, 1260b25, 1278b24; Aristotle, Nicomachean Ethics, ed. Roger Crisp (Cambridge: Cambridge University Press, 2000), Bk. 1. 11. See Chapter 2. 12. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999 [1971]), p. 4. 13. Plato, The Republic, in Complete Works, ed. John M. Cooper (Indianapolis, IN: Hackett Publishing, 1997), pp. 971–1223. 14. Ibid., 372b. 15. Ibid., 372c. 16. Ibid., 372d. 17. Rawls, A Theory of Justice, p. 4. 18. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Indianapolis, IN: Liberty Fund, 1982 [1776]), Bk 1, Ch. 1. 19. Ibid., Bk 1, Ch. 1. 20. Ibid., Bk 1, Ch. 2. 21. Adam Smith, The Theory of Moral Sentiments (Indianapolis, IN: Liberty Fund, 1982 [1759]), Pt. I, Sec. III, Ch. II. 22. Aristotle, Nicomachean Ethics, 1098a–1098a20. 23. Aristotle, Politics, 1252b28. 24. Ibid., 1252b25. 25. Ibid., 1253a10. 26. Smith, Wealth of Nations, Bk. 1, Ch. 2. 27. Samuel Fleischacker, On Adam Smith’s Wealth of Nations: A Philosophical Companion (Princeton, NJ: Princeton University Press, 2004), p. 92. 28. Aristotle, Politics, 1253a29 (emphasis added). 29. Rawls, A Theory of Justice, p. 4. 30. Aristotle, Nicomachean Ethics, 1098a15. 31. Charles Larmore, The Morals of Modernity (Cambridge: Cambridge University Press, 1996), Ch. 1. 32. Rawls, “The Idea of Public Reason Revisited,” p. 573. 33. John Rawls, “The Idea of an Overlapping Consensus,” in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999 [1987]), p. 425. 34. Alasdair MacIntyre, After Virtue, 2nd ed. (Notre Dame, IN: University of Notre Dame Press, 2003 [1981]), p. 253. 35. Ronald Beiner, What’s the Matter with Liberalism? (Berkeley, CA: University of California Press, 1992), Ch. 3. 36. Charles Larmore, “The Limits of Aristotelian Ethics,” Nomos, Vol. 34, “Virtue” (1992), pp. 185–96. 37. See Isaiah Berlin, “John Stuart Mill and the Ends of Life,” in Four Essays on Liberty (Oxford: Oxford University Press, 1969), pp. 173–206. 38. Larmore, “The Limits of Aristotelian Ethics,” p. 192.

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39. Mark LeBar, “Virtue and Politics,” in The Cambridge Companion to Virtue Ethics, ed. Daniel C. Russell (Cambridge: Cambridge University Press, 2013), p. 278 (emphasis original). 40. Rawls, Political Liberalism, p. xviii. 41. Aristotle, Politics, 1261a20–30 (emphasis added). 42. Aristotle, Nicomachean Ethics, 1094a. 43. Ibid., 1095a20. 44. This distinction is the same one that Rawls makes between the concept of justice and different conceptions of justice. See Rawls, A Theory of Justice, p. 5. 45. This way of evaluating conceptions of happiness is identified by Daniel C. Russell in “Virtue Ethics, Happiness, and the Good Life,” in The Cambridge Companion to Virtue Ethics, ed. Daniel C. Russell (Cambridge: Cambridge University Press, 2013), pp. 14–5. 46. The formal conditions include the control thesis, that happiness is something that belongs to a person and cannot be taken away easily; the activity thesis, that happiness consists in doing things; the completeness thesis, that happiness includes everything that might be considered a good; the self-sufficiency thesis, that happiness is sufficient and does not require the addition of further goods; and the unimpeded thesis, that happiness is lasting and uninterrupted. See Julia Annas, The Morality of Happiness (New York: Oxford University Press, 1993), pp. 39–42. 47. See Daniel C. Russell, Happiness for Humans (Oxford: Oxford University Press, 2013). 48. Aristotle, Nicomachean Ethics, 1102a25 (emphasis added). 49. Ibid., 1097b20. 50. Ibid., 1098a15. 51. Ibid., 1098a20. 52. Aristotle may not have written the books of the Nicomachean Ethics in the order we have. My point is simply that his preliminary point about virtue and happiness from Book One is distinct and logically separable from his considered view, if indeed we can say that he has a definitive considered view. 53. See Chapter 2. 54. This view is also defended by Douglas Rasmussen and Douglas Den Uyl in their Norms of Liberty (University Park, PA: Penn State Press, 2005), Ch. 11. I discuss my differences with Rasmussen and Den Uyl in Chapter 6. 55. This is not, however, to claim that practical wisdom is compatible with any kind of life (e.g., a life of drug abuse), or that such lives ought not be discouraged, either by law or social opinion. In this sense, the constraint of practical wisdom on acceptable conceptions of the good functions similarly to Rawls’s often vague notion of the “reasonable.” 56. Rawls, “The Idea of an Overlapping Consensus,” p. 425 (emphasis added). 57. Aristotle, Politics, 1304b20–1305a40. 58. Ibid., 1308b25. 59. Jonathan Haidt, The Righteous Mind: Why Good People are Divided by Politics and Religion (New York: Vintage Books, 2012), Ch. 7. 60. Charles Taylor,“Atomism,” in Communitarianism and Individualism, ed. Shlomo Avineri and Avner de-Shalit (Oxford: Oxford University Press, 1992), pp. 29–50. 61. John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: Harvard University Press, 2001), pp. 32–38; Larmore, “The Limits of Aristotelian Ethics,” p. 194. 62. Ibid. 63. See Gerald Gaus, The Order of Public Reason and Kevin Vallier, Must Politics Be War?: Restoring Our Trust in the Open Society (Oxford: Oxford University Press, 2019). 64. Vallier, Must Politics Be War?, p. 5.

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65. Ibid., p. 2. 66. Ibid., p. 4. 67. Rawls, A Theory of Justice, p. 3. 68. Rawls, A Theory of Justice, p. 4. 69. Rawls, Political Liberalism, p. xxxvii, fn. 5. 70. Bernard Williams, In the Beginning There was the Deed: Realism and Moralism in Political Argument. Edited by Geoffrey Hawthorn (Princeton, NJ: Princeton University Press, 2005), p. 3. 71. David Hume, “Of the Original Contract,” in Essays: Moral, Political, and Literary (Indianapolis, IN: Liberty Fund, 1987 [1752]), pp. 465–87. 72. Roger Scruton, Where We Are: The State of Britain Now (New York: Bloomsbury, 2017), p. 59. 73. Rawls, Political Liberalism, p. xxiv. 74. In this sense, we are building on the membership account of political obligation defended in Chapter 2. 75. Aristotle, Politics, 1310a35. 76. Roger Scruton calls this “a politically pregnant first person plural.” See Roger Scruton,“Hayek and Conservatism,” in The Cambridge Companion to Hayek, ed. Edward Feser (Cambridge: Cambridge University Press, 2006), p. 225. 77. Toleration cannot itself be the purpose of a liberal order, since by definition, to unify around a set of values is to exclude others. It may be liberal to tolerate the intolerant, but it cannot be liberal to tolerate for the sake of tolerance itself. 78. Smith, The Theory of Moral Sentiments, Part VI, Sec. II, Ch. II. 79. I explore and defend this claim further in the following chapter. 80. Edmund Burke, Reflections on the Revolution in France (Indianapolis, IN: Liberty Fund, 1999 [1790]), p. 193. 81. See Yuval Levin, The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left (New York: Basic Books, 2014), Ch. 3. 82. Aristotle, Politics, 1280b29 (emphasis original). 83. Ibid., 1280b10. 84. MacIntyre, After Virtue, p. 222. 85. I comment on this view of political philosophy further in the concluding chapter. 86. Steven Wall, “Political Morality and the Authority of Tradition,” The Journal of Political Philosophy, Vol. 24, No. 2 (2016), pp. 137–61. 87. Cf. MacIntyre, After Virtue, pp. 187–96. 88. Larmore, “The Limits of Aristotelian Ethics,” p. 194. 89. Rawls, “The Idea of Public Reason Revisited,” pp. 581–2. 90. Aristotle, Nicomachean Ethics, 1095a20. 91. Ibid., 1094b15. 92. Ibid.

Part II

The Role of Virtuous Persons in Good Institutions

4

Justice as Lawfulness

John Rawls famously wrote that “[j]ustice is the first virtue of social institutions.”1 According to Rawls, this means that “laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.”2 Rawls’s uncompromising stance on justice stimulated decades of work in political philosophy reflecting on what institutional justice requires. In doing so, political philosophers offered both a normative lens through which to evaluate our societies and a blueprint for remodeling them to be just. But while Rawls’s important work launched a tradition of thought, it also foreclosed an older tradition in which justice is primarily a character virtue. This had the unintended consequence of disconnecting reflection on a just society from reflection on the virtues necessary for living well. Consequently, following the precedent established by liberalism, the virtues of character became a purely private matter, disconnected from the political community within which persons live well. Justice lost touch with the good. According to traditional views originating in Roman law, justice as a virtue of character is the unwavering disposition to render to each person what is due to them.3 A just person will grasp what a person is due and be disposed to ensure that people receive what they are due as a matter of justice. According to eudaimonist virtue ethics, justice is also one of the virtues that is necessary for living well, alongside the other cardinal virtues: prudence, courage, and temperance. One obvious route from virtue ethics to political philosophy, then, is to inquire about the relationship between justice as a virtue of character and justice as a virtue of institutions. What is the role of the virtuous person in good (or just) institutions? Consider the classic case of Socrates. In Plato’s Crito, Socrates argues that the just person should obey the law, unless it is possible to persuade the city that the law is unjust and should be changed.4 For this reason, having failed to persuade the city at his trial, Socrates accepts the unjust order of his execution, rejecting the offer from his friend Crito (and others) to help him escape. But, in the Apology, Socrates relates the fact that he refused an unjust order from the Thirty Tyrants to arrest Leon of Salamis.5 So, notwithstanding his arguments in Crito, apparently,

64 Virtuous Persons in Good Institutions Socrates also thinks that sometimes the just person should disobey the law without first attempting to persuade. While one can certainly agree with Socrates that it is worse to commit injustice than suffer it, what distinguishes escaping (unjust) execution, which the just person will not do, from refusing an (unjust) order, which the just person will do? In other words, when should a just person disobey the law? How is a just person related to the laws and institutions of a good society? We can distinguish two conceptions of justice as a character virtue. Each specifies the sense in which the just person renders to each what they are due. According to what I will call a “fairness conception,” what persons are due is fundamentally a matter of fairness, where “fairness” is understood in terms of a substantive theory of justice (as fairness). The just person grasps what fairness requires in a given situation and has a disposition to see that justice is done. In contrast, according to what I will call a “lawfulness conception,” what persons are due as a matter of justice is fundamentally connected to the laws of an existing political community, regardless of whether such laws are substantively just. The just person is the person who understands and follows the laws, and in doing so, sees that persons receive what they are due, which ultimately, is determined by the laws of a political community. We can also distinguish two views of the relationship between justice as a character virtue and justice as an institutional virtue (henceforth simply “individual” and “institutional” justice). One possibility is that institutional justice is logically prior to individual justice, such that what is institutionally just structures the duties of individual justice. Call this the “structural view.”6 According to the structural view, a person is just insofar as they fulfill the duties that just institutions would prescribe. An alternative to the structural view is that individual justice is logically prior to institutional justice, such that just institutions are composed of the relationships between just persons. Call this the “compositional view.”7 According to the compositional view, a person is just primarily as a matter of character, and institutions are just insofar as they maintain the relations between just persons. This chapter defends the compositional view and argues that it requires a lawfulness conception of individual justice I call “justice as lawfulness.”8 A good (or just) society is (at least) one in which persons have an unwavering disposition to follow the laws of their political community. Justice as lawfulness consists of three claims. First, given the compositional view, just institutions are composed of the relations between just persons. Second, according to justice as lawfulness, the just person has a disposition to act in accordance with the legal and social norms (collectively, the nomoi) of an existing political tradition. Third, departures from the nomoi require that the just person act with practical wisdom to reform the nomoi according to a standard of justice implicit in an existing political tradition. The just person is a law-abiding agent of reform,

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charting a middle course between a political tradition, where justice is rooted, and a standard of justice, which may be approached incrementally through the tradition.

Individual Justice Following Aristotle, we can provisionally define individual justice as a settled disposition of character to perform just acts with (a) knowledge, (b) sound emotion, and from (c) rational choice [prohairesis].9 In this manner, one must choose just actions, with the knowledge that they are just, and without conflicting emotions. Aristotle also thinks of virtue as hitting a mean between two extremes of vice in terms of excess and deficiency, that is, performing the right action, with the appropriate emotion, at the right place, and at the right time. As some commentators have noticed, the virtue of justice fits uncomfortably within Aristotle’s doctrine of the mean.10 But as I discuss later, in relation to the issues of unjust laws and social change, there is a sense in which justice is a mean, or at least, as Aristotle puts it,“a kind of mean” because “it is concerned with a mean.”11 Aristotle cites two ways in which a person is said to be unjust, reflecting two different senses of the positive Greek adjective dikaion: (i) the unlawful person and (ii) the unfair/greedy person.12 Aristotle’s observation forms the basis of the contrast I draw between a lawfulness conception and a fairness conception of individual justice. While both lawfulness and fairness are, in some sense, integral to justice, the difference between the two conceptions is a matter of emphasis and priority. According to a fairness conception, the lawful person and the just person are not necessarily the same, since some laws may be judged unfair from the standpoint of justice and therefore are not acceptable to the just person. Consequently, the just person will approve of and perform acts that are just insofar as they are fair, according to the best conception of fairness. Since existing laws, whether just (in this sense) or not, also raise considerations of fairness in terms of their equal application, the just person need not sanction lawlessness. But the lawful and the just remain distinct kinds of reasons. Lawful reasons are determined by existing law, and just reasons are determined by each person’s judgments about what is fair. Hence, the lawful person is not necessarily the just person. In contrast, a lawfulness conception asserts an identity: the just person is the lawful person. The just person will not act in accordance with what justice requires in any sense (fairness or otherwise) unconnected from what is lawful, understood as following the laws of an existing political community. This use of “laws” is broadly consonant with the thought of F.A. Hayek, who distinguishes the unguided evolutionary process of law from the deliberately designed and planned process of legislation.13 By following the laws, the just person follows and upholds the law of an existing political tradition, which, following John Kekes, is “a set of

66 Virtuous Persons in Good Institutions customary beliefs, practices, and actions that has endured from the past to the present and attracted the allegiance of people so that they wish to perpetuate it.”14 The just person, on a lawfulness conception, has a disposition to abide by these norms, whereas on a fairness conception, the just person has a disposition to act in accordance with reasons of fairness, which may or may not support the norms of a political tradition. Aristotle also distinguishes the just person from two other modes of justice: the just act and what makes something just.15 As we have seen, what makes something just, for Aristotle and eudaimonists generally, is determined by whatever secures the happiness or flourishing (eudaimonia) of a political community’s members.16 And thus, the just act is an action that contributes (directly or indirectly) to the happiness of a political community’s members. Further, an act of injustice performed through ignorance or excessive emotion can be separated from acts that are performed from an unjust character, which, following Aristotle’s account of virtue, requires rational choice and a settled disposition or habit. In addition to (i) the just person, (ii) the just act, and (iii) what makes something just, we should also add for our purposes, (iv) the just institution, understood as an institution that is in accordance with what makes something just, or in Aristotelian terms, an institution that enables its citizens to live well together. How are these four modes of justice structured? One possibility is to begin with the just person. While sympathetic to the possibility, David Wiggins observes that the notion of the just person seems to depend logically on a prior analysis of the just act (i.e., what acts the just person characteristically performs), which in turn depends on what makes something just (i.e., what features make those acts just).17 Indeed, this is precisely the point on which fairness and lawfulness conceptions of individual justice diverge, with the former claiming that just acts must be fair and the latter claiming that just acts must be lawful. What makes something just also seems tightly connected to the just institution, since many questions of justice invoke or assume the existence of institutions that can be either just or unjust. But what makes an institution just? Must we, answer this question independently of the just person? Or, is there something central about the just person?

Institutional Justice The structural view claims that the just person is not central to institutional justice. Instead, according to the structural view, we should begin by trying to understand institutional justice and then think of the just person as someone who is disposed to uphold and follow the requirements of institutional justice. The compositional view, meanwhile, claims the opposite: we should begin by trying to understand the just person and then think of just institutions in terms of institutional arrangements that hold between just persons. In what follows, I examine these competing

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views in more detail and argue that the compositional view is superior to the structural view because it better integrates the character virtue of justice with institutional justice in a way that illuminates the connection between the good life and the good society. While not explicitly identified, the compositional view has roots in ancient Greek ethics, particularly the “depoliticized” outlook of the Stoics, who despite their emphasis on individual justice as a virtue constitutive of living well, according to Julia Annas, “[did] not regard the justice of institutions as a centrally important ethical matter.”18 Despite its ancient roots, the possibility of a compositional view of justice has been ignored by contemporary political philosophers. For instance, responding to a possible objection that his treatment of justice is a break from the philosophical tradition represented by Aristotle, Rawls writes, “Aristotle’s definition [of justice] clearly presupposes . . . an account of what properly belongs to a person and of what is due to him.”19 Moreover, “such entitlements are .  .  . very often derived from social institutions and the legitimate expectations to which they give rise.”20 Rawls’s point is well-taken. But following the compositional view, one may argue that what properly belongs to a person, while logically connected to social institutions, may not be adequately explained by a theory of justice for what Rawls calls “the basic structure of society.”21 Instead, it is possible that just institutions are composed of the relations between just persons, and the laws of these institutions, which the just person has a disposition to recognize as just, define what properly belongs to a person. While the compositional view is routinely ignored, the structural view has dominated (and even defined) contemporary political philosophy. The structural view maintains that justice is primarily a virtue of institutions. Moreover, the structural view assumes that we can fruitfully and reliably theorize about what the institutions of a just society would be like. Theorizing about justice then normatively guides the evaluation of existing institutions and recommends ways to make them more just by approaching an ideal of justice. This normative guidance also applies to the just person, who is understood to have a disposition to follow and promote the institutions recommended or supported by the best theory of justice. As Rawls puts it, the duty of justice for individuals “requires us to support and to comply with just institutions that exist and apply to us. It also constrains us to further just arrangements not yet established.”22 In this sense, individual justice is wholly derivative of institutional justice. The structural view rightly focuses on institutions as a site of justice. This is an important issue. However, from a eudaimonist perspective, the structural view fails to respond to the sense in which justice, as an institutional and individual virtue, is part of living well. The structural view divorces the first-personal reasons that motivate the just person, as part of living well, from the third-personal reasons that may support a theory of institutional justice. Famously, for example, Rawls requires that we

68 Virtuous Persons in Good Institutions leave behind our ideas about the good (and so virtue) in order to enter the original position and consider justice impartially behind the veil of ignorance. What results is a bifurcation in practical reasoning: institutions are not justified in terms of the virtues characteristic of a good life that an actual person might pursue, but in terms of an ideal theory of just institutions for ideally just persons. But when we cease to reason behind the veil of ignorance, ideally just institutions may or may not answer to the concerns of actual persons and how they conceive of the good for themselves and their political communities. Ideal justice misses the point of justice, which is to enable persons to live well. One reason for this bifurcation in practical reasoning is Rawls’s claim that the concept of the right is prior to the concept of the good.23 This means, among other things, that individuals have broad latitude to pursue different conceptions of the good so long as they are consistent with and (ideally) supportive of what institutional justice requires as a matter of right.24 In this regard, Rawls follows Henry Sidgwick, who thought of the right as an imperative notion, what we are required to do even if it does not appeal to us, whereas the good is an attractive notion, that is, what is a desirable (but optional) way to live.25 However, with some exceptions, these philosophers have not noticed that the virtue of justice has both notions.26 Justice is a constraint because it requires or prohibits certain actions. This is the aspect of the right, justice as an imperative notion. This imperative sense of justice supports what Rosalind Hursthouse calls “v-rules,” which are rules that follow from acting in accordance with the virtues.27 For instance, an honest person will generally follow the rule of keeping promises. But because justice is also a virtue of character, justice cannot not simply be an imperative notion. Like the other virtues, justice is directive: it directs the virtuous person to be just, and to establish good institutions where possible, both of which we ought to desire because they are demanded by virtue. This is the aspect of the good, justice as an attractive notion. For eudaimonist virtue ethics, then, the main defect of the structural view is that it does not adequately account for the directive aspect of individual justice; it might tell us what institutions are required by a theory of justice, but it doesn’t integrate that idea with an understanding of the just person in a way that illuminates the important connection between justice, the good life, and the good society. Rawls’s structural view was evidently motivated to avoid utilitarianism, which is a compositional view insofar as just institutions are defined in terms of satisfying the principle of utility for individuals. For the utilitarian, just institutions are composed of individuals who are just insofar as they act on the principle of utility through their participation in the institutions of their society. For this reason, Rawls observed, utilitarianism extends to “society as a whole the principle of rational choice for one man.”28 And Rawls rejected utilitarianism because it allowed individual

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interests to be sacrificed when they were in service of the aggregate good. Hence, “[u]tilitarianism does not take seriously the distinction between persons.”29 Can the same objection be made to compositional views generally? Does the compositional view of justice allow the sacrifice of the individual for the group? There is good reason to think the objection does not apply to a compositional view that takes virtue instead of utility as central. As Hursthouse explains: The thought that motivates regarding utilitarianism as a threat is the thought that wrong or wicked acts regarding particular individuals can be ‘justified’ when they maximise the good of happiness. . . . But a eudaimonia-based account gives no such reductive account of wicked or wrong acts. If a just law, determining a right, cannot, as things stand, be implemented in a particular society, without necessitating that some members of the society act wickedly or wrongly, then it cannot, as things stand, be implemented.30 As we saw in Chapter 2, the italicized portion of this passage is what Mark LeBar calls “Hursthouse’s Constraint.”31 According to LeBar, we should interpret Hursthouse’s claim as setting a limit on political authority, such that the individual good cannot be sacrifced for the overall good precisely because the good is understood in terms of virtue. In other words, Hursthouse shows that eudaimonists can avoid Rawls’s objection to utilitarianism because they recognize the constraining aspect of the virtue of individual justice. Individual justice constrains institutional justice because just institutions are composed of the relations between just persons. Taking stock, the virtue of justice has what I have called a constraining aspect and a directive aspect. I rejected the structural view because it does not adequately account for the directive aspect of justice. It does not connect just institutions to the good life. A theory of the virtue of justice should integrate both, as the compositional view does. The virtuous person is just because justice is a virtue necessary for living well. There is still a remaining issue, however, for we could understand individual justice either in terms of fairness or lawfulness, and this will make a difference in how we understand the claim that institutional justice is composed of the relations between just persons. Thus, the compositional view remains incomplete until we settle on a conception of individual justice, and so we need to examine more closely the fairness and lawfulness conceptions of individual justice.

The Fairness Conception of Justice While fairness has a strong association with post-Rawls egalitarian work on distributive justice, it is also an important concept in the classical liberal tradition.32 In this tradition, LeBar has recently defended

70 Virtuous Persons in Good Institutions a conception of individual justice that incorporates the Kantian idea of respect for persons in a way suitable to approaching issues in political philosophy from a virtue ethics perspective.33 LeBar’s view is significant because, unlike Rawls and many subsequent political philosophers, who combine a fairness conception of individual justice with the structural view, LeBar defends the compositional view, and he does so from a virtue ethical perspective. It is worthwhile therefore to examine LeBar’s view as the main competitor to the view I call “justice as lawfulness.” LeBar’s view is also significant because he argues for “a certain liberal conception of political authority—what is sometimes called ‘justificatory liberalism’—[as] something virtue ethical theories have reason to endorse.”34 As we saw in the previous chapter, political (or justificatory) liberalism is an account of political authority that “requires the justification of that authority to each individual subject to it.”35 Political liberals ground their account of political authority in a conception of persons as fundamentally free and equal insofar as they are reciprocally placed to determine their obligations and duties.36 No person, according to this view, has any natural or pre-existing obligation to obey another. LeBar argues that an understanding of this “justificatory relationship” between persons is missing from virtue ethics, particularly in the ancient sources.37 To better understand the justificatory relationship on virtue ethical terms, LeBar draws on T.M. Scanlon’s contractualism to propose that we see ourselves as standing in a relation of “mutual recognition” with each other, and he identifies this relation as involving a virtue. LeBar cites the following passage from Scanlon: The contractualist ideal of acting in accord with principles that others (similarly motivated) could not reasonably reject is meant to characterize the relation with others the value and appeal of which underlies our reasons to do what morality requires. This relation, much less personal than friendship, might be called a relation of mutual recognition. Standing in this relation to others is appealing in itself—worth seeking for its own sake.38 Elsewhere LeBar is clear that this relationship between persons is a way of understanding the reasons we have for respecting persons, and that respect for persons is plausibly the core of an adequate conception of individual justice.39 There are three Kantian elements to LeBar’s conception of the virtue of individual justice, which, in my taxonomy, align it with a fairness conception of justice. Each contributes to the idea that justice is about giving others what they are due in terms of fairness understood as reciprocity. The first is the familiar Kantian moral principle of always treating persons as ends in themselves and never merely as means. Here the idea is that we cannot simply use other people as means to our own ends, since

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they have ends of their own sufficient to demand respect.40 A just person recognizes persons as ends in themselves. The force of the first Kantian idea leads to a second idea that the just person, in his relations with others, “refrains from imposing his will on them in any way that is incapable of reciprocation.”41 In this sense, the just person must justify her treatment of others in terms that they can recognize, understand, and reciprocate. Thirdly, this recognition of reciprocal respect suggests that others have a kind of moral standing to demand that we treat them in ways that can be reciprocally justified. The just person will give reasons for treating others that they cannot reasonably reject in Scanlon’s sense. LeBar’s conception of individual justice places reciprocity at the heart of just relations between persons.42 It is worth noting, however, that unlike most fairness conceptions in the vast literature on distributive justice, LeBar’s focus on reciprocity does not necessarily yield substantive conclusions about what actions are just (or unjust) in determinate circumstances. His conception emphasizes formal norms of respect more than it does substantive norms of fairness. Rather, fairness is understood as requiring respect for individuals’ status as free and equal persons. But this is procedural, not substantive fairness. Justice is about rendering to each what is due, where what is due is specified by what can be reciprocally justified. In this respect, LeBar’s view is much closer to Rawls’s earlier work, which linked justice and fairness through the idea of reciprocity, than he is to A Theory of Justice, which proposes a substantive view of fairness.43 Nevertheless, the just person, according to LeBar’s view, unlike on a lawfulness conception, will act on reasons of justice (as respect, reciprocity, fairness, etc.), which are logically independent of what existing law requires. Just as, for Rawls, existing law may not be substantively just because it does not satisfy the principles of justice as fairness, LeBar’s conception of the just person invalidates existing law when it cannot be reciprocally justified. The just person is disposed to treat others as free and equal persons, deserving of respect and reciprocal justification for the imposition of duties and obligations. No person has a pre-existing duty or obligation to others. To treat someone justly is merely to respect their status as a free and equal person. And since LeBar also defends the compositional view, institutional justice is constrained by the relations between just persons who act reciprocally in their interactions with one another. LeBar’s conception of individual justice rightly focuses on what we might term our “accountability relations” with others, that is, the ways in which we feel ourselves required to justify our actions to each other as equal members of a political community. And plausibly, part of treating others fairly in this way is to respect their moral status as persons with ends of their own. But LeBar’s attempt to determine the scope and justification of our accountability relations is misguided. As I will argue, the issue of justifying our duties and obligations to one another is fundamentally about having a functional means of public justification, and

72 Virtuous Persons in Good Institutions this is a function that existing law uniquely serves. Law provides settled expectations, so that we need not rely on unstable and unreliable private judgments about justice. An important difference here is the extent to which human beings are capable of reasoning about justice. As political liberals emphasize, human diversity guarantees that there will remain deep reasonable disagreements about the nature of justice and other contested virtues. A fairness conception of justice embraces this disagreement but nevertheless attempts to find grounds for each individual person to endorse a conception of justice, according to their own reasoning, and reciprocally, in relation to everyone else. In this way, respect for persons is reconciled with the demands of justice. But because of the inevitable instability of and divergence in people’s judgments about justice, and the likelihood that they will further drive the ever-present forces of faction and fragmentation, I have argued that reasonable pluralism is better supported by a consensus about the good, which is embedded in the norms of social membership in a political community. Norms of membership imply an existing set of shared values, traditions, and mutually recognized obligations that secure social unity while permitting human difference. This view accords better with a lawfulness conception of justice, which is inherently skeptical of private judgments about justice, and instead looks to existing and widely shared norms to structure our political and social relationships with others. The problem for the fairness conception, meanwhile, is how to determine whose judgments about justice will be authoritative. Because people disagree about fairness (as reasonable pluralism makes clear), there would seem to be no consensus about who is fair and therefore no way to determine who has the virtue of justice. There will be as many views about who the just person is as there are views about justice. But, according to a lawfulness conception, it is eminently clear who the just person is: the person who is lawful. LeBar attempts to account for disagreement about justice by focusing on the higher order procedural question of how we justify our actions to each other in accordance with justice. The question “who is just?” becomes “who decides who is just?” And his answer is that we are reciprocally placed insofar as moral obligations must be justified to each person. Justice, in effect, is the disposition to respect each person’s views about justice. Duties of justice must be justified in terms of public reasons each can understand and endorse. But this principle of justification cannot substantively determine what justice practically requires of and in our accountability relations with others. This is because such relations are essentially a matter of jurisdiction, and jurisdiction cannot be determined without first accounting for existing relationships, institutions, and practices, many of which are publicly justified in terms of the laws of an existing political community, and few of which require reciprocal

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justification for the imposition of obligations and duties (e.g., the duties of family, citizenship, and social role). Reciprocal justification might be a worthy ideal of how to act within our existing accountability relationships (friendship comes to mind), but it cannot determine or justify them a priori. As J.R. Lucas puts it, “[the law] tells us not what is to be done in a situation, but who is to decide what shall be done. And to have the say is to have a right.”44 We outsource the question “who decides who is just?” to law. This is the true meaning of the rule of law. The foregoing shows that LeBar’s “justificatory relation” between persons is something already socially embedded in the relationships, institutions, and practices that constitute a political community and make up the pre-theoretical given of social and political life. Eudaimonism does not lack this notion, but it denies that it can be understood abstractly, disconnected from the social contexts of an existing political community. In other words, we must acknowledge the fact of social embeddedness. Institutions determine our relationships to others in ways that make our obligations and duties transparent, even if not fully determinant. We have “role obligations,” e.g., the obligations of family members, citizens, members of organizations, and so on. But what these obligations amount to concretely must be worked out in practice by practically wise persons in their actual circumstances. They cannot be determined (much less justified) by an abstract appeal to justice. This is partly because the virtues do not provide moral guidance that is reducible to a set of principles, much less a single virtue like justice.45 Rather, the virtues (including justice) consist in the proper way of acting—virtuously—within our existing relations with others.46 The just person recognizes the moral importance of these relations and acts well within them.

Justice as Lawfulness Justice as lawfulness begins from the fact of social embeddedness: the virtuous person always acts in a shared social context, consisting of relations between fellow citizens, family members, neighbors, friends, and so on. The just person is disposed to act in accordance with the nomoi of her political community. I use the ancient Greek term nomoi deliberately to indicate the usefully broad sense of “law” in ancient Greek political thought. As Richard Kraut explains, [W]hen [Aristotle] says that a just person, speaking in the broadest sense is nomimos, he is attributing to such a person a certain relationship to the laws, norms, and customs generally accepted by some existing community. Justice has to do not merely with the written enactments of a community’s lawmakers, but with the wider set of norms that govern the members of that community. Similarly, the unjust person’s character is expressed not only in his violations of

74 Virtuous Persons in Good Institutions the written code of laws, but more broadly in his transgression of the rules accepted by the society in which he lives.47 These are the norms—recognized by the just person—that determine what someone is due. While the ancients did not make Hayek’s distinction between the processes of law and legislation, Aristotle does recognize the general superiority of customary law over written law.48 Since legislation may be part of a legal tradition based in law, I use nomoi to encompass both as well as the broader sense indicated by Kraut. Given this understanding of nomoi, in terms of Aristotle’s four modes of justice, justice as lawfulness consists of the following four claims. First, what makes something just refers to the nomoi, which determine what a person is due as a matter of justice. Second, a just act is an action performed in accordance (or not in confict) with the nomoi. A just act respects what persons are due. Third, the just person acts from a settled disposition to observe the nomoi, not out of blind obedience, but as a virtue, chosen for its own sake, with knowledge and sound emotion. Finally, given the compositional view defended earlier, a just institution will be an institution that maintains the relations between just persons, who observe the nomoi. The critical role of the nomoi in understanding the virtue of justice is that they function as public judgments for how persons should treat each other with respect to what they are owed. The nomoi solve the problem of “what do we owe each other?” not with abstract principles of justice, but by providing settled expectations about what we can reasonably expect of one another in our day-to-day interactions. This is ultimately how we cooperate for the sake of living well together. The nomoi do not “justify” our relations with each other; rather, they constitute what LeBar calls the “justificatory relation.” The nomoi structure our relationships with and consequent obligations to others. A thoroughly lawless society (Durkheim’s “anomie”) is one in which persons act solely based on their own private judgments without regard to their relationships and obligations within the political community. While there can never be complete unanimity, full transparency, or determinacy in the nomoi of a society, the public nature of law, either written or informal, allows people to interact beneficially, since they know what to expect from each other. Law is the institutionalization of trust. The important connection between law and social trust shows the superiority of justice as lawfulness to fairness conceptions of justice. For social trust is strained by sharp disagreements about competing conceptions of justice. But according to justice as lawfulness, we determine our accountability relations with others—solidifying social trust—by referring to the offices and relationships that are defined by the institutions and practices of an existing political tradition, expressed by/in its nomoi. This is not political liberalism’s conception of public justification understood as public reason, but rather a conception of public justification that accounts for the actual role played by institutions and

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practices in political life. Justice as lawfulness focuses on public practices rather than public reason. Political liberalism, as we have seen, is motivated by the fact of reasonable pluralism. For it is thought that we need a way to model and explain how the diversity of values that exist in modern societies can morally coexist with the coercive nature of political institutions.49 While the fact of reasonable pluralism is important, especially with respect to competing conceptions of the virtues in a society, I believe it carries too much weight in the discussion of public justification. As I have argued, any stable society characterized by reasonable pluralism also consists of a set of shared beliefs that come with social membership in a political community: the nomoi. Reasonable pluralism is only possible if there exists some set of stable beliefs about how groups with different substantive views of justice ought to behave toward one another. Otherwise, while pluralism may temporarily flourish, in the long run, faction and fragmentation are inevitable. It is a virtue of justice as lawfulness that it recognizes the important function of these stabilizing beliefs as realized in the laws and institutions of an existing political community. We are now able to fully integrate Hursthouse’s contribution that virtue—more specifically individual justice—is a constraint on institutional justice, and ultimately, political authority. How does the just person, who is disposed to follow the nomoi of her community, help us understand institutional justice? Since the just person upholds and follows the nomoi, which consist of both legal and social norms, we can start by thinking about the relationship between these two kinds of norms. The legal theorist Lawrence Solum proposes three forms this relationship can take: 1. Congruence: a legal norm can be congruent with a social norm (or vice versa), e.g., criminal laws against murder. 2. Support: a legal norm can be supported by a social norm, e.g. social norms about which authority determines the rules of the road (i.e. a public transport authority). 3. Inconsistency: a legal norm can be inconsistent with a social norm, either in terms of (a) content or (b) lack of recognized authority.50 The congruence relation is one that raises no special problems from the standpoint of justice. When legal norms are congruent with social norms, there exists a harmony between what the (positive) law requires and what the community believes the law ought to require as a matter of justice. The same legal norm, of course, will be incongruent if it is exported to a place where the appropriate social norms do not exist (e.g., exporting democracy to parts of the Middle East). The support relation is similarly unproblematic. Every functioning society relies on social norms that sanction specifc authorities to have jurisdiction over some realm of social life, such as a public transport authority. The just person

76 Virtuous Persons in Good Institutions is disposed to recognize these authorities, where established by the legitimately made law of a political community. The crux of individual justice as a constraint on institutional justice resides in the inconsistency relation. Following Solum, inconsistencies between legal and social norms can take at least two forms: (a) conflict in content and (b) conflict in recognized authority. I would also add (c)  conflict in implementation.51 What does the just person do when faced with such conflicts? Either she acts on the legal norms, in which case she is betraying the social norms, or she acts on the social norms, in which case she is betraying the legal norms. Neither preserves the just person as a lawful person. First, consider a conflict in content. In cases of new or proposed legal norms, it is easy to see how social norms that are already part of an established political tradition take precedence. For instance, if a civil authority attempted to pass a law of mandatory government informing on fellow citizens, this would violate a clear social norm regarding privacy in the United States. We also have norms about which institutions have recognized authority to perform certain functions. For example, there are norms sanctioning the traffic management authorities to regulate speed on public highways, but a traffic authority that mandated what color cars may drive on the highways would be grossly overstepping its mandated authority. The point, in both cases, is not that the prior social norm has been around for a long time, but rather that it has persisted as part of a political tradition that has successfully met the needs of its citizens, who look to their political tradition as a constitutive good in their lives, a good that embodies strands of social knowledge that are not accessible to any single person.52 The just person, then, has a disposition to uphold and defend a political tradition from the encroachment of political, social, and individual forces. A third possibility is a law that, while having some plausible justification, requires action that is inconsistent with a social norm in its implementation. This seems to be the kind of case Hursthouse had in mind with laws that require persons to engage in vicious activity. If, for instance, there is some justification for a law prohibiting certain drugs, but in practice the enforcement of the law requires the authorities to treat minor drug offenders in an inhumane way (as arguably the “War on Drugs” does), there is some reason to think that the law as such is inconsistent with a social norm, and therefore not a law acceptable to the just person, at least in the vicious form of implementation. I close this section with a reprise of an objection I first considered in Chapter 2 that will set up a discussion of unjust laws and social change. I have explained the constraint of individual justice in terms of the relationship between legal and social norms (collectively, the nomoi), where the just person has recourse to one or the other to maintain justice as an institutional constraint. But what should be said if the nomoi themselves are vicious or unjust? How does justice as lawfulness account for unjust

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nomoi? For the view seems to depend on the perhaps overly optimistic Aristotelian claim that the nomoi track the happiness [eudaimonia] of the members of a political community. But we know this is often not the case, as illustrated by the antebellum South where both the legal and social norms marginalized and brutalized the slave population, or in other cases, where institutions fall short in less extraordinary, but altogether unsurprising ways. As I will argue, justice as lawfulness needs to be understood in conjunction with practical wisdom [phronesis], so that the nomoi can be reformed in accordance with an implicit standard of justice that the just person approaches incrementally through the political tradition in which he acts.

Unjust Laws and Social Change Part of the task of this final section is to explain why justice as lawfulness is not essentially conservative. For the requirement that political institutions are constrained by the existing nomoi of a political community might seem unduly prejudiced toward the status quo and hostile to new proposals for beneficial and necessary social change. Indeed, one of the attractions of the structural view when combined with a fairness conception of justice, which dominates contemporary political philosophy, is that it begins from the premise that existing institutions are very likely unjust (because unfair) and therefore must be made just in accordance with the best theory of (institutional) justice. Undoubtedly fairness—especially political equality—has been an important value in the development and spread of liberal democracies. But like all political values out of which one might try to fashion a theory of justice, fairness is a multidimensional and highly contested value. As such, it is unclear how to construct a theory of justice that can serve the function of public justification in a political society characterized by deep substantive disagreement about justice. Rawls was right to identify this as a problem for theorizing about a just society; he was wrong to think it could be overcome by theorizing about justice. An important feature of the nomoi is that they are bounded in time and place. They are the path-dependent result of successful responses to social problems that existed in the past, to which their mere existence testifies. The existing norms of a political community are successful because they have gone through a process of social evolution; they have answered to an implicit standard of justice that proves itself by solving perennial problems of social life. The nomoi of a society are justified not because they comport with an ideal theory of justice, but because they approximate ideal solutions to nonideal problems.53 And since one of our nonideal problems is the imperfectability of human beings, we must continually fine-tune our institutional instruments to adapt to our own fallibility.54 What’s more, changes in the moral and social landscape, e.g., new economic conditions, may necessitate reform, since old solutions may be maladapted to new problems. For example, while contingencies having

78 Virtuous Persons in Good Institutions to do with the division of labor made women’s full participation in politics a near impossibility in earlier ages of human society, economic progress and social change toward the end of the nineteenth century made the prospect seem desirable to enough people to democratically win women’s suffrage. In this case, women (and men) sought to reform the existing social norms of their time that confined women to a fixed gender role in society. Why, as John Stuart Mill argued, should women not be given a fair chance to succeed on the same terms as men?55 It is tempting to view Mill’s plea as an appeal to a theory of institutional justice or a theory of fairness. But arguably Mill wasn’t trying to replace an old social norm with a new one. He was trying to reform the existing social norm, that political participation is reserved for those who are capable of political deliberation and action, to include the other half of the population, who in Mill’s estimation eminently met that criteria. The necessity of new proposals for social change is grounded in the fact that, over time, the nomoi of a society inevitably ossify. Part of the reason for that ossification is natural decay. But it is also the result of human iniquity, fallibility, and our inability to keep pace with the dynamics of the complexity of society, facts which eudaimonist virtue ethics is in the best position to acknowledge. It is, therefore, the responsibility of the just person not only to abide by the existing nomoi, but to reform the nomoi when necessary and possible, so that the political tradition can be revived and perpetuated. In the immortal words of Edmund Burke, “[a] state without the means of some change is without the means of its conservation.”56 Correspondingly, a state without just persons is without the means of its change. According to justice as lawfulness, social change—at least salutary change—comes about because of the just person, who looks to change the nomoi, not by reference to abstract considerations of justice, but by reforming the existing nomoi in a way that improves and adds to the existing political tradition, thus sustaining it across time.57 This change in individual judgment, represented by the just person, then eventually may become widespread enough to change the nomoi, and ultimately, though perhaps slowly and uncertainly, move the political community closer to what philosophers might recognize as an ideal of justice. For instance, refusing people opportunities and services based on an immutable characteristic (i.e., race) was once an accepted and widely practiced social norm in the United States. But over time, individual judgments about the evils of this practice consolidated to make this kind of discrimination one of the worst transgressions of a social norm one can commit. The individual moral judgment of the just person alerts us to ways in which the nomoi are deficient and therefore fall short of perfect justice (as they must), which can only be approximated in the institutions of a political tradition. But attempts to transform existing institutions to satisfy an ideal of justice can be quixotic or even dangerous if they are not based on shared judgments, which must balance contested ideals of justice with

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the real risk of social change. This is one reason why just persons must argue for their reform proposals in public, and if they are to be persuasive, ground their proposals in the ideals of a shared political tradition. Like Martin Luther King’s pronouncements on the evils of segregation— pronouncements which were deeply grounded in the highest ideals of the American political tradition—such proposals have the power to reform the nomoi over time, if only they are heard and considered. Likewise, harmful proposals can be heard and defeated. The nomoi must also include second-order judgments about justice, i.e., what kinds of social arrangements are considered just by the community. These judgments are by definition widely shared. Second-order judgments about justice can create social pressure to reform legal norms that are no longer considered just, which is to say they no longer serve the function of maintaining a society that is perceived and experienced as just by its members. The process can also work in the other direction. For sometimes the social norms are defective and new legal norms must be politically implemented to exert downward pressure on obstinate persons to change their behavior. Such new legal norms, of course, are best championed by just persons, whom fellow citizens can recognize as agents of responsible and salutary political change. This process of balancing justice with the vagaries of political and social change requires care and above all, practical wisdom. The distinguishing feature of justice as lawfulness is that it places the emphasis on reform from an initial place of conformity rather than transformational or revolutionary change. This is not because we must deny that there is such a thing as ideal justice. We need only deny that reliable knowledge of ideal justice is possible. On the one hand, insisting that institutions conform to an ideal of justice without paying attention to the existing nomoi undermines the very institutions that make reform possible. On the other hand, maintaining seriously defective and poorly functioning institutions for the sake of short-term stability can undermine the long-run legitimacy of existing institutions and thereby undermine their role in citizens living well. While there is no perfect balance between stability and change, and there are no guarantees that the just person will be successful in achieving a recognizably just (much less liberal) society, justice as lawfulness nevertheless locates justice in the actions of just persons, rather than the design of just institutions. I have drawn the basic contrast between the structural and compositional views as residing in the relative logical priority given to either just institutions or just persons in the order of explanation. But as Annas observes, Aristotle, whom I have taken as a paradigm of the compositional view, “has much to say about both [i.e., just institutions and individuals], and, in his usual fashion, has no drive to reduce one to the other or to force them under a specific common account.”58 While I have defended the compositional view over the structural view, I believe the view Annas attributes to Aristotle is right, and justice as lawfulness explains why. The

80 Virtuous Persons in Good Institutions just person is disposed to follow the nomoi. But the nomoi are inextricably linked to the institutions of an existing political community. And so, if existing institutions are in accordance with the nomoi of a political community, the just person qua lawful person is, in effect, someone who follows just institutions (per the structural view). However, what makes institutions just is not a substantive view of justice, but the fact that they harmonize with the nomoi of a political community (contra the structural view). So, while justice may or may not be “the first virtue of social institutions,” as Rawls put it, the just person strikes a necessary balance in practical judgment between justice (as lawfulness) and the other virtues of a good society (e.g., efficiency, fairness, artistic achievement, etc.). This last idea is why I believe justice as a character virtue can be usefully understood in terms of a mean. Aristotle famously defines virtue as a mean with respect to a vice of excess and a vice of deficiency. These are two ways of going wrong. For example, the temperate person avoids gluttony (excess) and asceticism (deficiency) with respect to bodily pleasures. The virtue of justice, it has been argued by Bernard Williams, allegedly does not fit this model because there seems to be no special feeling associated with justice and no corresponding way to do the just thing in a way intermediate between two unjust things, being either too just or not just enough.59 According to justice as lawfulness, however, there remains a sense in which justice is a mean between two ways of going wrong. The two ways of going wrong are: (a) excessive conformity to existing law/institutions without regard for necessary and beneficial reforms and (b) deficient regard for existing law/institutions in pursuit of an ideal of justice. Hence, justice is a mean, either between an excess of stability and a deficiency of change, or an excess of change and a deficiency of stability. Justice is a matter of getting it right.

Conclusion The mean of justice corresponds to the constraining and directive aspects of the virtue of justice identified earlier. Justice as lawfulness requires that persons abide by the legal and social norms of their political communities. In this sense, justice is a constraint on both individual action and institutional design. But justice as lawfulness also requires that the just person has a critical perspective on the nomoi in order to reform them when necessary and possible. In this sense, justice directs us to revivify the social structure that enables us to live well. Thus, in my view, the questions “how should I act?” and “what should our institutions be?” are tightly connected. We should act to preserve our existing institutions while working to reform them when necessary and possible through virtuous activity. I began by asking why Socrates refuses the unjust order he describes in the Apology, yet he accepts the unjust outcome of a very different order

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in Crito. The full answer should now be evident. Socrates accepts his punishment and refuses to flee in Crito because he accepts, as a matter of individual justice, the nomoi of his political tradition. To flee punishment, even unjustly deserved, would be an act of injustice, and therefore is unacceptable to a just Socrates. Meanwhile, Socrates refuses the unjust order to arrest Leon of Salamis in the Apology because he is constrained by justice, which directs him not to recognize the authority of the Thirty Tyrants, since that institution acted outside the constraints of the Athenian political tradition to which Socrates belonged. In this respect, Socrates anticipates the natural law theorists in holding that lex iniusta non est lex (an unjust law is no law at all).

Notes 1. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999 [1971]), p. 3. 2. Ibid. (emphasis added). 3. See St. Thomas Aquinas, Summa Theologiae, in Aquinas: Political Writings, ed. R.W. Dyson (Cambridge: Cambridge University Press, 2002 [1485]), II-II q. 58 a. 1c, p. 168. 4. Plato, Crito, in The Complete Works of Plato, ed. John Cooper (Indianapolis, IN: Hackett Publishing, 1997), 51b. 5. Plato, Apology, in the Complete Works of Plato, 32c. 6. Mark LeBar, “The Virtue of Justice Revisited,” in The Handbook of Virtue Ethics (London: Acumen Publishing, 2014), pp. 270–1. 7. Ibid. 8. This chapter is based on my article “Justice as Lawfulness.” See Tristan J. Rogers, “Justice as Lawfulness,” Journal of the American Philosophical Association, Vol. 4, No. 2 (Summer 2018), pp. 262–78. 9. Aristotle, Nicomachean Ethics, ed. Roger Crisp (Cambridge: Cambridge University Press, 2000), 1105a25–1105b10. 10. Julia Annas, The Morality of Happiness (New York: Oxford University Press, 1993), p. 312. 11. Aristotle, Nicomachean Ethics, 1134a. 12. Ibid., 1129a. 13. F.A. Hayek, Law, Legislation and Liberty, Vol. 1 (Chicago, IL: University of Chicago Press, 1973), pp. 72–3. 14. John Kekes, A Case for Conservatism (Ithaca: Cornell University Press, 1998), p. 38. 15. Aristotle, Nicomachean Ethics, 1134b–1136a. 16. Aristotle, Politics, ed. C.D. Reeve (Indianapolis, IN: Hackett Publishing, 1998), 1282b15–1284a. 17. David Wiggins, “Neo-Aristotelian Reflections on Justice,” Mind, Vol. 113 (2004), pp. 487–91. 18. Annas, The Morality of Happiness, p. 311 (emphasis added). 19. Rawls, A Theory of Justice, p. 10. 20. Ibid. 21. Ibid., p. 6. 22. Ibid., p. 99. 23. Ibid., p. 28.

82 Virtuous Persons in Good Institutions 24. John Rawls, “The Priority of Right and Ideas of the Good,” in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999 [1988]), pp. 449–50. 25. Henry Sidgwick, The Methods of Ethics, 7th ed. (Indianapolis, IN: Hackett Publishing, 1981 [1874]), Bk. 1, Ch. 9. 26. See Gary Watson, “On the Primacy of Character,” in Identity, Character, and Morality, eds. Owen Flanagan and Amélie Oksenberg Rorty (Cambridge, MA: MIT Press, 1990), pp. 449–70. 27. Rosalind Hursthouse, On Virtue Ethics (New York: Oxford University Press, 1999), pp. 36–9. 28. Rawls, A Theory of Justice, p. 24. 29. Ibid. 30. Rosalind Hursthouse, “After Hume’s Justice,” Proceedings of the Aristotelian Society, Vol. 91 (1991), p. 242 (emphasis added). 31. Mark LeBar, “Virtue and Politics,” in The Cambridge Companion to Virtue Ethics, eds. Daniel C. Russell (Cambridge: Cambridge University Press, 2013), p. 273. 32. John Tomasi, Free Market Fairness (Princeton, NJ: Princeton University Press, 2012), pp. 96–9, 162–96. 33. LeBar, “The Virtue of Justice Revisited,” pp. 265–75. 34. LeBar, “Virtue and Politics,” p. 265 (emphasis original). 35. Ibid., p. 279. 36. Gerald Gaus, The Order of Public Reason (Cambridge: Cambridge University Press, 2011), pp. 14–35. 37. LeBar, “Virtue and Politics,” p.  278, “The Virtue of Justice Revisited,” pp. 267–70. 38. T.M. Scanlon, What We Owe to Each Other (Cambridge, MA: Harvard University Press. 1998), p. 162 (emphasis added). 39. LeBar, “The Virtue of Justice Revisited,” pp. 268–70. 40. Mark LeBar, The Value of Living Well (Oxford: Oxford University Press, 2013), pp. 10–14. 41. LeBar, “The Virtue of Justice Revisited,” pp. 268–9. 42. See also David Schmidtz and John Thrasher, “The Virtues of Justice,” in Virtues and Their Vices, eds. Kevin Timpe and Craig A. Boyd (Oxford: Oxford University Press, 2014), pp. 59–74. 43. For the earlier work, see John Rawls, “Justice as Fairness,” in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999 [1958]), pp. 59–60. 44. J.R. Lucas, On Justice (Oxford: Clarendon Press, 1980), p. 27. 45. Deidre McCloskey, The Bourgeois Virtues: Ethics for an Age of Commerce (Chicago, IL: University of Chicago Press, 2007), pp. 346–68. 46. Julia Annas, “My Station and Its Duties: Ideals and the Social Embeddedness of Virtue,” Proceedings of the Aristotelian Society, 102 (2002), pp. 109–23. 47. Richard Kraut, Aristotle (Oxford: Oxford University Press, 2002), pp. 105–6. 48. Aristotle, Politics, 1287a–187b10. 49. Charles Larmore, “Pluralism and Reasonable Disagreement,” Social Philosophy and Policy, Vol. 11 (1994), pp. 61–79. 50. Lawrence Solum, “Natural Justice: An Aretaic Account of the Virtue of Lawfulness,” in Virtue Jurisprudence, eds. Colin Farrelly and Lawrence Solum (New York: Palgrave MacMillan, 2008), pp. 188–9. 51. I owe this point to Fred Miller Jr. 52. See Roger Scruton, The Meaning of Conservatism (South Bend, IN: St. Augustine’s Press, 2002), pp. 30–2.

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53. David Schmidtz, “A Realistic Political Ideal,” Social Philosophy and Policy, Vol. 33 (2016), p. 9. 54. Daniel C. Russell, “What Virtue Ethics Can Learn from Utilitarianism,” in The Cambridge Companion to Utilitarianism, eds. Ben Eggleston and Dale E. Miller (Cambridge: Cambridge University Press, 2012), p. 268. 55. John Stuart Mill, “The Subjection of Women,” in On Liberty, Utilitarianism, and Other Essays, eds. Mark Philp and Frederick Rosen (Oxford: Oxford World Classics, 2015). 56. Edmund Burke, Reflections on the Revolution in France (Indianapolis, IN: Liberty Fund, 1999 [1790]), p. 108. 57. This is particularly characteristic of liberalism interpreted as a political tradition. See Alasdair MacIntyre, Whose Justice? Which Rationality? (Notre Dame, IN: University of Notre Dame Press, 1988), Ch. XVII. 58. Annas, The Morality of Happiness, p. 316. 59. Bernard Williams, “Justice as a Virtue,” in Essays on Aristotle’s Ethics, ed. Amélie Oksenberg Rorty (Berkeley, CA: University of California Press, 1980), pp. 189–200.

5

The Common Good of Political Friendship

Aristotle observes that since “[t]he laws have something to say about everything, their aim being the common interest .  .  . in one sense, we call anything just that tends to produce or to preserve happiness and its constituents for the community of a city.”1 In this sense, the social and legal norms of a political community (the nomoi) aim at the common good, and the virtuous person, whether as a holder of public office or a politically engaged citizen, will act for the sake of this end. Adherence to the nomoi and a desire to promote the common good fit Adam Smith’s definition of the good citizen: He is not a citizen who is not disposed to respect the laws and to obey the civil magistrate; and he is certainly not a good citizen who does not wish to promote, by every means in his power, the welfare of the whole society of his fellow-citizens.2 The frst half of Smith’s defnition accords with our conception of the just person from the previous chapter, justice as lawfulness. The second half accords with Aristotle’s initial thought that the laws should serve the common good. But what is the common good? Again, we must confront the problem of pluralism. For seeking the happiness of a political community seems to rely on some conception of happiness.3 More broadly, why should the concept of the common good be preferred to more familiar appeals to justice, rights, utility, and so on? After all, provided each member of a political community is fourishing on their own terms, the society is suffciently just, and nobody’s rights are being violated, what special contribution is made by an appeal to the common good? The common good invokes the value of community, and so to do without the common good would seem to give up on the ideal of a political community. John Rawls, for instance, writes in the affirmative that “the hope of political community must indeed be abandoned, if by such a community we mean a political society united in affirming the same comprehensive doctrine.”4 Instead, Rawls holds that we should look to a political conception of justice for a common purpose that does not

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presuppose any single comprehensive doctrine. But a shared view of justice cannot substitute for genuine community, which ultimately invokes much more than even a shared comprehensive doctrine. A family, for example, can maintain strong communal bonds without affirming the same comprehensive doctrine. It is also possible for individual members of a family to flourish separately, treat each other justly, share the same comprehensive doctrine, but lack a strong communal bond. What makes a family strong is for each member to recognize the distinctive good of family membership. By analogy, what makes a political community strong is for each citizen to recognize the distinctive good of political membership and its important role in living well. A political community enables its members to live well together, that is, as members of a distinct kind of association whose specific goods are not available privately, or in other nonpolitical forms of association. Building on this conception of the political community, this chapter argues for a conception of the common good I call “political friendship.”5 The common good consists in the shared social condition we inhabit as members of the same political community. Such a condition is “common” because it is a precondition for the pursuit of individual conceptions of the good. And such a condition is “good” because it expresses the social nature of living well, that is, a life lived in political association with fellow citizens. This act of sharing a political community is irreducibly common and may exist in addition to, or despite, the fortunes experienced by individual members. While the character virtue of justice consists in adherence to the nomoi of a political community, the nomoi serve the common good of its members when they perpetuate their shared relationship as citizens of the same political community.

Sociality and the Problem of the Common Good One feature of eudaimonist virtue ethics is the central place of sociality in living well. As Martha Nussbaum puts it, “[t]he good human life is a life with and toward others: membership in a polis is an important part of one’s other-directed activity.”6 This has two consequences for thinking about the role of the virtuous person in good institutions. First, as I argued in Chapter 3, the form of social cooperation made possible by the political community is partly constitutive of living well. Social cooperation, in addition to its instrumental value, is valuable for its own sake. As Aristotle recognized, a life lived outside of a political community would be less than fully human.7 Second, this view of social cooperation dissolves the familiar conflict in moral philosophy between self-interested, or prudential reasoning, and other-regarding, or moral reasoning. The good of others is not necessarily opposed to the individual’s good, since it is assumed that other-regarding activity, which is perfected by the virtues, is necessary for living well. Neither egoism, nor altruism accurately

86 Virtuous Persons in Good Institutions characterize the human condition. The real question is rather how, and to what extent, the good of others and the good of the community, feature in the individual good.8 We can see this dynamic clearly in our earlier account of virtuous activity, which acknowledges the fact of social embeddedness. The virtuous person acts from a socially embedded perspective, that is, as a person occupying various social roles and relationships as defined by the institutions and social practices of an existing political community. To act virtuously is to exercise practical wisdom to develop the virtue(s) internal to these roles and relationships. Sociality emerges here as the various positions we occupy from the socially embedded perspective. Some of these are chosen (e.g., occupation), others are not (e.g., birth family). Further, some of these social relationships are dynamic (e.g., friendships) and others are static (e.g., citizenship at birth). All of them, however, take place within some political community or another. For this reason, Aristotle claims that the political community has the most authority; it is the community within which all other forms of community take place.9 While we can transform our political communities, such communities remain the starting point for virtuous activity. How does a political community instruct its members in virtuous activity? As we have seen, a political community is partially defined by a set of legal and social norms (the nomoi) that, through their codification in social and political institutions, secure political order and coordinate social cooperation so that members of the community have the opportunity to live well. But the nomoi need not be substantively just to perform this function. It is possible, therefore, for the nomoi of political communities to differ at the level of content, while performing equally well the function of securing political order. In addition to securing political order, the other half of the justification for the nomoi is that they contribute to the common good. A just person does not blindly follow the nomoi of her political community, but understands how they contribute to the common good and works to reform them when they do not. This is the entry point for discussion about the common good. The content of the nomoi, after all, are in some part the product of social forces: history, experimentation, external shocks, chance, and so on. Yet, given their important role in living well, it would be a mistake to conclude that they are mere social conventions or somehow arbitrary. What matters is that the nomoi of a political community serve the common good. And whether they do is contingent on the judgment of individual virtuous persons in public discourse with their fellow citizens as equal members of a political community. But which of these elements should be primary, the individual or the social? For instance, a particular norm may be judged defective from the perspective of a virtue-seeking person, while the society as a whole (or at least a majority) maintains that it serves the common good. Contrariwise, the

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majority may mistakenly cling to a norm that does not serve the common good, while individual members see through the error in judgment. The tension between the individual and the social elements of a political community sets up a dilemma for discerning the content of the common good. Either (a) individual judgments about the common good are primary or (b) social judgments are primary. If the former, then the common good consists of the feasible set of individual judgments about the common good. And if the latter, then the common good consists in the judgments of a social consensus, exercised through the auspices of political authority or simply through the force of public opinion.10 Now, leaving the common good up to the judgment of individual virtue-seeking persons runs into a problem, as virtue-seeking persons will often disagree about what virtue requires with no authoritative epistemic standard. This robs the common good of its role in collective practical reasoning. On the other hand, a socially sanctioned common good may solve the problem of collective practical reasoning, since it need not be concerned with divergent (or dissident) individual judgments. But this seems to come with the cost that individual members of the political community do not fully exercise virtuous agency in following the norms that have been socially sanctioned to secure the common good. The virtues require rational choice. The foregoing dilemma reveals three constraints on an adequate conception of the common good. First, the common good must function to order the process of collective practical reasoning so that otherwise disordered judgments about the content of the nomoi are reconciled toward a common aim. In other words, persons may disagree about the means, that is, about what will in fact serve the common good. But they nonetheless must agree about the end, that the common good, whatever it may be, is their common aim and is at least, in principle, possible to achieve. Second, the common good must allow for disagreement—the very stuff of politics—and not reduce ordinary political disagreements to fundamentally mistaken judgments about what is good. The common good functions to resolve or mediate such disagreements through compromise, not eliminate disagreement altogether. Finally, the common good must not eliminate individual agency from the process of following and shaping the nomoi of one’s political community. Virtue, after all, consists in the exercise of practical wisdom, which must be voluntarily and rationally chosen by each person. Passive obedience to the nomoi is not virtue.

Public Discourse and the Common Good The problem of discerning the common good is reflected in public discourse. Most obviously, the familiar dichotomy between liberal and conservative political views reflects different attitudes toward the common good. A conservative will tend to defer to the existing nomoi in the belief that they have proven to reliably contribute to the common good. The conservative

88 Virtuous Persons in Good Institutions thus prioritizes collective social judgments about the common good over individual judgments. In contrast, a liberal will tend to believe that at least some of the existing nomoi are deficient or unjust and so are not serving the common good. For the liberal, what matters are sober and reflective individual judgments about what would truly serve the common good. Thus, insisting on the priority of social judgments over the conclusions of individual conscience strikes the liberal as oppressive and irrational. Plainly both perspectives—liberal and conservative—are, to some extent, necessary. As John Stuart Mill puts it, “[i]n politics, again, it is almost commonplace, that a party of order or stability, and a party of progress or reform, are both necessary elements of a healthy state of political life.”11 As we observed in the previous chapter, given the importance of existing norms in securing political order and providing opportunities for virtuous activity, the just person will follow the existing nomoi. This is the conservative perspective on the common good as residing in respect for existing institutions and norms. But this does not rule out the possibility that some of the nomoi are deficient in the sense of not fully enabling persons to live well. A virtuous person, therefore, will exercise practical wisdom to reform defective nomoi. This is the liberal perspective that social norms can become defective and undermine the flourishing of individuals. What is the proper balance between individual and social judgments? This is the role of the common good: to balance the judgment of the virtue-seeking person against the socially accumulated wisdom of the community. But for the common good to play this role, there must be public discourse about which norms contribute to the common good. Understood in this way, public discourse is a conversation about the good. And for public discourse to be a good conversation about the good, it must be regulated by the virtues. A major obstacle to healthy public discourse is political polarization. Data released by the Pew Research Center in 2014 show that political polarization in the American public is at an all-time high. Alongside growing polarization, the data also show “a rising tide of mutual antipathy,” where 38% of Democrats have a “very unfavorable” view of Republicans, and 43% of Republicans have a “very unfavorable” view of Democrats (both numbers are up from the mid-teens in the mid-nineties).12 Given our broad characterization of the liberal and conservative perspectives, political polarization exists when partisans on each side do not recognize the necessity of the opposing viewpoint, a mixture of which would otherwise populate the center of the political spectrum. Politically polarized public discourse refuses to recognize that often we must decide between conflicting goods, and that the political process is not a zero-sum game, where the conservative view must defeat the liberal view, or vice versa. As I have observed, an important cause of political polarization is the lack of a shared narrative about the purpose of the political community and how we might best achieve our ends.13 In this sense, we disagree about

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both means and ends, which is a serious problem because, as psychologists have shown, our perceptions of the world are largely driven by our aims, and our aims, in turn, are shaped by beliefs about what has value, what is worth pursuing.14 This is an intuitive or emotional matter, not a rational one. So too in the realm of morality: “Intuitions come first, strategic reasoning second,” as Jonathan Haidt puts it,15 or in David Hume’s original formulation, “Reason is and ought to be the slave of the passions.”16 Because we reason poorly in isolation, we depend on a shared conceptual apparatus to mediate our experience of the moral and natural world. Our collective perceptual apparatus may function reasonably well because modern societies share a broadly scientific outlook. This has enabled a much greater understanding of the natural world and driven spectacular technological innovation. But, as Alasdair MacIntyre observes, building on a point originally made by Elizabeth Anscombe, with the decline of teleological Aristotelianism and traditional or religious moralities, our moral language is in a state of disrepair because it has been disconnected from the traditions, beliefs, and practices that originally gave it meaning.17 Consequently, we are prevented from engaging in meaningful moral dialogue because we do not view the moral world through the same lens. We lack a collective moral apparatus. Since the nature of the polarization problem lies at the level of moral perception, a solution at the level of reasoning will not suffice. The issue is not simply that there are no publicly recognized norms of reasoning, but that there is no accepted moral framework within which norms of reasoning may operate. This is a further reason why political liberalism cannot succeed. As we have seen, political liberals begin from Rawls’s diagnosis of the modern condition as characterized by the fact of reasonable pluralism.18 Given this disagreement about the good, Rawls’s idea is to build up a political conception of justice from the culture of liberal democracy that will allow each person to reasonably endorse a family of liberal conceptions of justice from the perspective of his comprehensive doctrine. However, if the disagreement runs deeper than the merely philosophical sounding “comprehensive doctrines,” if it reaches down to the level of moral perception, as I have argued, it is difficult to see how any form of public reasoning can function among fundamentally incompatible moral worldviews. Instead of focusing on a political conception of justice that can be endorsed by a process of public reasoning, I join MacIntyre’s proposal that we return to the moral framework of the virtues, a moral language shared by the ancient Greco-Roman and Judeo-Christian traditions out of which modern liberal democracies have developed. For despite our enduring moral disagreements, the language of the virtues remains among the remnants of what we still share. As MacIntyre puts it, “[i]n the conceptual mélange of moral thought and practice today fragments from the tradition—virtue concepts for the most part—are still found.”19 We want friends who are honest, co-workers who are conscientious, family who are loving,  and

90 Virtuous Persons in Good Institutions for ourselves to have dignity and be worthy of respect. We also share a desire for living well, however conceived, and most will acknowledge at least the minimum expectation that a good life is, in some measure, also a virtuous (or ethical) life.20 As much as we worship economic productivity, in the final analysis, material success is insufficient. Success and living well are not the same thing. How can the virtues help us confront the entrenched problem of political polarization? I propose that we start with love, a traditionally Christian virtue.21 Deidre McCloskey writes that “[l]ove can be thought of as a commitment of the will to the true good of another.”22 Since the virtues are the excellences of character that enable us to live well, love is a virtue because it aims at the good. Love as a virtue also fits Aristotle’s mean: to love properly is to have appropriate regard for others, between the extremes of excess (infatuation) and deficiency (callousness). Unlike justice, which concerns what another person is due, love looks to supply others with what they need, with what is good for them, even if they may not deserve it. It is customary to distinguish four senses of the word “love,” which in English covers at least four distinct classical concepts: (i) self-love, (ii)    eros, (iii) philia, and (iv) agape. Self-love is mere self-preservation, which is present in all animals, and as such is properly catalogued as an instinct rather than a virtue. Eros is sexualized or romantic love, which in its ancient conception was an impersonal force and not necessarily always in the service of the good; thus eros is not a virtue. Philia is the love of friends and family, and when genuine and directed at the right end, is always good. Finally, agape is love of the transcendent, usually (but not always) God. It is the love that forgives enemies and heals old wounds because we each belong and submit to something greater. Following the Stoic concept of oikeiosis, we can trace our capacity for love beginning in the family, extending more broadly to wider concentric circles of association.23 Oikeiosis (usually translated as “familiarization” or “affiliation”) explains how self-love expands to include love of others. Human beings, the Stoics claim, are immediately recommended to their own self-preservation. This is the morally neutral sense of self-love. Then through a process of analogy and imitation, we are educated to expand our moral scope beyond ourselves, first to family and friends, second to neighbors, third to our compatriots, and so on until we reach those who may live on the other side of the world. The Stoics were under no illusion that this was an easy process—and they do reserve a priority for those closer to us—but the thought is that when we think ethically we ought to be continually expanding the horizon of our moral concern. At the outermost limit, oikeiosis includes concern for humanity as such, and here it is natural to think in terms of love as a virtue intermediate between philia and agape. Since love is typically understood as a theological, not a classical virtue, in this sense oikeiosis extends beyond Stoicism, which tended to associate oikeiosis with the virtue of justice.

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We treat people justly, for the Stoics, by performing the appropriate actions (kathekonta) with respect to the relationship we stand to particular persons. Such relationships are determined by the nomoi of a political community, and so the Stoic view of justice is consonant with justice as lawfulness. But love seems to require more of us than simply performing role-relationship-duties and following the nomoi. We treat people with love when we go beyond default expectations to treat others as we treat those closest to us. Love surmounts the dilemma of personal obligation and self-interest, making the supererogatory into willing obligation. In this sense, love and justice are synonymous. How can love improve public discourse? Love, I have argued, aims at the true good of another, and the true good of everyone within a political community would be a common good. But what is this good? This is the question that much liberal political theory regards as too controversial, given the features of modernity and certain assumptions of liberalism. As I have observed, political liberals seek to replace the substantive question of “what is the good?” with the procedural question “who decides what is good?” In doing so, citizens are supposed to set aside privately held elements of their own conceptions of the good when engaging in public discourse to consider narrowly political matters. Alternatively, however, we could understand public discourse as a conversation about the good. In this manner, what look to be disagreements about politics are really disagreements about the good. While nothing is made easier by confronting the good head on, avoiding the veneer of a position of neutral adjudication at least gets to the heart of the issue.24 The good is the subject of the conversation, not an incidental, distracting, or controversial side issue. Love can enter public discourse as philia, the form of friendship that characterizes the relationship between citizens. What I call “political friendship” consists in virtuous activity between citizens who share a political community, with a common set of laws, institutions, and norms. In this way, love between citizens is mediated through the love of country. Patriotism allows citizens to share fellow feeling because they share a love for, and allegiance to, their country.25 Apparently interminable moral disagreements are ultimately overcome by a shared commitment to something larger: the political community that makes virtuous activity possible. This shared commitment also generates obligations grounded in the rights and responsibilities of social and political membership. What ought to be done is determined, not by abstract moral principle, but by publicly acknowledged duties determined by each person’s role in the political community. As we have seen in Smith’s definition of the good citizen, the patriotism of the good citizen ordinarily involves two different principles: (1) a respect and reverence for the existing political order, and (2) a desire to improve the well-being of one’s fellow citizens. “In peaceable and quiet times,” Smith writes, “those two principles generally coincide and lead to the same conduct. . . . But in times of public discontent, faction and

92 Virtuous Persons in Good Institutions disorder, those two different principles may draw different ways.”26 This is where healthy public discourse is essential, for public discourse is the process through which citizens work out the proper balance between respect for the existing political order and reforms that might ameliorate the well-being of one’s fellow citizens. But for public discourse to perform this function it must be regulated by the virtues. Since love aims at the true good of another, and public discourse is a conversation that aims at the good, for public discourse to truly aim at the good, it must be motivated by love, for one’s country, for one’s fellow citizens, for one’s family, and ultimately perhaps, of the good itself.27 In the absence of love, public discourse deteriorates into the suspicion that one’s opponents are either unintelligent or ill-motivated, and in extreme cases, one’s political opponents become outright evil enemies. And of course, the appropriate way to deal with enemies is not to compromise or live with them on terms of mutual acceptance, but to defeat them. It is no wonder, then, that breakdowns in public discourse often terminate in civil strife or outright war. As originally proposed in Chapter 3, we can compare the joint commitment to love one’s country and fellow citizens despite political disagreements to a healthy marriage. For where there is love and mutual understanding, marital disagreements are tolerable. But where there is disagreement about the marriage itself, even petty disagreements can become large enough to take down a marriage by chipping away at fellow feelings of love.28 So too among citizens of a divided political community: when we are committed to the well-being of the nation and our fellow citizens, we can disagree about the best means to achieve these ends. But if you suspect that I am not so committed and care little for you, my political proposals will be received as direct attacks on your well-being and way of life, rather than good faith beliefs about how to best move forward into the future together. Love, then, in addition to its prominence as a personal virtue, is also usefully thought of as a civic virtue. Love of country and of one’s fellow citizens are virtues one ought to expect in a good citizen. A good citizen will be disposed to obey the laws, but because she is also motivated to love her fellow citizens, concern for their well-being may necessitate (and motivate) reforming the nomoi of the political community. But salutary political change can only come from well-functioning public discourse, and it is in this realm that love (as political friendship) is most necessary, since it allows partisans of both sides to assume good faith in reaching an understanding of how best to wield political power to serve the common good.

Friendship and Justice The addition of love or friendship (philia) to our discussion about the common good helps explain the connection between community and justice. Community is neither the most important political value (per

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communitarianism), nor an obsolete value peculiar to premodern societies (per political liberalism). The mere existence of a political community, for instance, should not lead us to mistake it for the close ties characteristic of smaller communities. As Bernard Yack points out, “Aristotle never confuses the intense sense of belonging to a group, what Herman Schmalenbach calls “bund” (communion) with community itself.”29 On the contrary, the community characteristic of a political society is less personal, but provides important support to the existence of smaller social orders, which may exhibit more personal forms of community. What is the relationship between community and justice? We can approach this question by building on our earlier discussion of political friendship. Early on in his discussion of friendship, Aristotle makes a striking claim about the relationship between friendship [philia] and justice: “when people are friends, they have no need of justice, while when they are just, they need friendship as well; and the highest form of justice seems to be a matter of friendship.”30 The kind of friendship that Aristotle has in mind is less personal than what we think of as an intimate friendship, and so a city held together by friendship still has a need for justice in a way that intimate friends, as Aristotle claims, do not. After all, we cannot always depend on our fellow citizens in the appropriate ways, and to the extent, that we can with intimate friends. Meanwhile, in an ideal sense, justice and friendship coincide, since true friendship is valuing the good of another for the friend’s own sake, and justice is giving others what they are due, which shows appropriate concern for the good of another. The tendency Aristotle identifies seems to be that as friendship increases, the need for justice decreases, and as justice increases, justice approaches an ideal of friendship. For instance, the friendship that characterizes close family bonds seems to dissolve the need for justice, since family members can be expected to care for the good of each other.31 Justice, meanwhile, is the “jealous virtue,” as Hume put it, that maintains what persons are owed, in opposition to self-interested reasons.32 But if enough persons are truly motivated by justice, as a virtue, then the need to press one’s justice claims disappears and friendship results. This analysis is consonant with Hume’s influential claim that the virtue of justice only emerges under certain conditions, what Rawls refers to as “the circumstances of justice.”33 Rawls divides them into objective and subjective circumstances. The objective circumstances are (a) the fact of coexistence in some geographic territory, (b) the rough equality between individuals in physical and mental powers, and (c) moderate scarcity of resources. The subjective circumstances include (d) persons have their own plans of life, (e) their interests are to some degree self-focused, and (f) they suffer from lack of knowledge. Taken together, the circumstances of justice presuppose that justice is only useful and necessary where there is the possibility for conflict and cooperation. Thus, a society of angels

94 Virtuous Persons in Good Institutions or saints has no need for justice, and neither does a society engaged in a Hobbesian war of all against all. Hume’s circumstances of justice help us understand some of the preconditions for political order. However, Rawls’s discussion of Hume’s circumstances leaves out the fact that norms of justice implicitly presuppose the existence of some political community already engaged in social cooperation.34 Only in a political community with a pre-existing social tie that induces its members toward cooperation will persons relate to each other on terms of justice. In other words, fellow citizens do not view each other as enemies. Aristotle calls this “political justice,” which “is found among people who associate in life to achieve self-sufficiency . . .,” and “[s]o between people who are not like this there is nothing politically just, but only something just by approximation.”35 It might be, for instance, that Hume’s circumstances of justice obtain, but some citizens are nevertheless not disposed to cooperate because of a breakdown in social trust. Instead, they view each other as competitors over scarce resources rather than cooperators in a joint enterprise for living well. Or in the realm of public discourse, fellow citizens may instead view each other as ideological enemies. So, we should add to Hume’s circumstances of justice, the idea that justice only exists where people see themselves as beholden to act justly as equal members of a political community, and a precondition for this relationship is political friendship. While justice assumes the absence of close ties of friendship in a society at large, justice requires the existence of a social tie that is a form of friendship. The foregoing explains why, as Aristotle claims, we still need friendship even when justice has been secured. Echoing Abraham Lincoln, a good society is a society of friends, not a society of enemies. A sense of friendship or social belonging in a community is a prerequisite to share norms of justice, and further, just communities allow us to extend the bonds of friendship in ways that express our sociality as part of living well. In this sense, friendship, understood as an element in the common good, can be thought of as a virtue akin to justice. Following David O’Connor’s analysis, for instance, we can understand justice in a corrective sense. This is the virtue of justice as lawfulness, that is, adopting and conforming to the nomoi of one’s political community. But, as O’Connor points out, justice also has an expressive sense: “justice is the virtue of a human being who is a good partner in the pursuit of some worthwhile goal, especially the goal of virtuous action within the context of a political community.”36 O’Connor’s expressive sense of justice is a kind of political friendship because it requires shared activity with those who share a pre-existing social tie. Political friendship is a matter of recognizing that this social tie is a common good, and the political community is an enterprise we participate in as equal members for the sake of this good.

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The affinity between justice and friendship shows that, contrary to the claim of some philosophers, justice and community are not necessarily in conflict.37 A political community aims at the common good and is held together by norms of justice, which, as I’ve argued, depend on the social tie of political friendship. A political community, therefore, must share some conception of justice and the common good. The crucial questions are (i) What is a political community? and (ii) What does a political community share as a common good? First, we saw in Chapter 3 that Aristotle warns not to mistake the political community for an “alliance” whereby “law becomes an agreement ‘a guarantor of just behavior toward one another,’ . . . but not such as to make the citizens good and just.”38 What defines a political community, then, is that its members live well together, meaning that they take an interest in the well-being and affairs of each other beyond the mere observance of procedural norms of justice. Social membership in a political community presupposes a first-personal plural, an “us” for which things can go better or worse.39 Just as a friendship between two people can improve, suffer setbacks, or dissolve completely, the political community is based on a kind of friendship that makes it the kind of entity for which things can go well, individually and collectively. Second, what does a political community share as a common good? We can distinguish here between what Charles Taylor calls “convergent goods” and either “mediately” or “immediately common goods.”40 The distinction concerns not how a good is provided, but rather how the good is consumed. Thus, the classic public good of national defense is nevertheless a convergent good according to Taylor, because while it is provided publicly, the good of personal security is enjoyed by each person individually. In contrast, a mediately common good would be the experience two people share in going to a concert together. The concert, let’s say, is provided privately and paid for individually, but the two people enjoy the good together as a shared experience. Lastly, some common goods, like friendship, are immediate, in the sense that “what centrally matters to us is just that there are common actions and meanings.”41 The act of sharing itself is a good regardless of what is shared. The next section explores the idea that political friendship itself is a common good in Taylor’s sense of an immediate good, that is, as a good we share in together. A political community is a partnership for the sake of living well. This is the relatively static community within which all the dynamic communities of human society aim at living well. In terms of Michael Oakeshott’s well-known distinction between civil and enterprise associations, a political community is a civil association, based on shared institutions, rules, and norms within which persons pursue the good through various enterprise associations that are smaller than the political community.42 This act of sharing institutions, rules, and norms give us a model for understanding the common good as a form of political friendship.

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The Common Good of Political Friendship Aristotle calls the political form of friendship “concord” [homonoia].43 Political friendship exists “when people agree about what is beneficial, rationally choose the same things, and carry out common resolutions.”44 It does not require that people agree about everything, only those things that define and constitute their political community. A political community, as I have argued, is held together by political friendship. And it is plausible to suppose this is a kind of common good, since without it, the community dissolves and individuals lack the necessary social order within which to live well. The common good depends on reciprocity to encourage members of the community to maintain the bond of political friendship. Without it, there is civil strife and instead of cooperating, as Aristotle put it, fellow citizens insist on “pressing one another to do what is just while not wishing to do it themselves.”45 This is an indirect understanding of the common good. The way in which virtuous persons contribute to good institutions is not by promoting one conception of the common good over another, but rather by perpetuating the social condition of political friendship that makes living well in a political community possible. The common good does not direct us to pursue a shared end, but rather consists in the way we each pursue the end of virtuous activity in a political community with our fellow citizens. Thus, the shared end constituted by the common good just is the way persons relate virtuously to one another in political society through their shared institutions and traditions. The common good is an adverb, the virtuous manner through which we pursue our ends, rather than a noun, a substantive good at which we all aim. We can further refine political friendship by distinguishing: (a) what is shared, and (b) the act of sharing. First, political friendship consists in sharing institutions, practices, and norms that define justice. To the extent that members of a political community have shared beliefs, they have shared beliefs as participants in practices that prescribe common rules, obligations, and expectations. This social morality, as I have described it, is the necessary institutional framework within which persons pursue the virtues. Social morality allows the diversity of values in a society to play out within a system that is a precondition of each person’s good, and is therefore a common good. Second, we can abstract from what is shared to consider the act of sharing itself. The fact that a political community shares common understandings, practices, and so on, allows people to live in such a way that they can identify their own fate with the fate of the political community itself. Harms to the community are also harms to individuals, even if particular individuals are personally left unharmed. We can see this most clearly in cases of national catastrophe such as a terrorist attack. The damage done to the community is something over and above the damage

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done to the direct victims of the attack. So, while two people may share little in the way of individual purposes, when their political community is harmed, they experience it as a threat to their shared life together. The common good aligns justice and friendship. Members of a political community share institutions, which define justice, while the identification with these shared laws that define justice constitutes political friendship. This unites the good of individuals with the good of others. For, as the ancients remind us, justice is the good of others, and friendship is adopting the good of others as one’s own good. Further, friendship is a good for both parties, and everyone benefits from norms of justice. For this reason, a pluralistic society is still capable of a common good that enables members of the community to cooperate in beneficial ways, even while their substantive aims and purposes may differ. What does political friendship imply for the use of political authority? How can virtuous persons, either as voters or public officials, use the idea of political friendship to promote the common good? In Cicero’s De Re Publica, we find the character Scipio Africanus explaining political friendship by analogy to the management of public property. In the voice of Scipio, Cicero writes: Well then, states Africanus, a res publica is the property of the people (res populi). However, a people (populus) is not any gathering (coetus) of human beings assembled in any way at all, but a gathering of a critical mass united in a partnership (sociatus) by an agreement about law/justice/rights (iuris consensus) and by commonality of advantage (utilitatis communione).46 Cicero uses the public property metaphor for representing the interests and business of the people. The res publica (the public thing), consisting of a set of shared institutions, practices, and norms, is a piece of public property that we all share in virtue of being members of the same political community. As public property, therefore, the people have both a claim and a responsibility to manage (or govern) their political community as equal citizens. The basis of this partnership (or friendship) is the kind of reciprocal equality described by Aristotle,“ruling and being ruled,”47 but rather than an aristocratic basis for rule, Cicero makes the radical claim that citizens are equal in the sense of being equal under the law, framed by the rights and duties of their shared political community. Despite apparent similarities, this is not the Lockean view that individuals have pre-institutional natural rights that constrain the design of political institutions from the outset.48 Rather, with Aristotle, Cicero’s view is that the political community itself is a good; good institutions and laws naturally complement the kinds of desires, plans, and ambitions that good citizens naturally develop as members of a political community.

98 Virtuous Persons in Good Institutions Hence, the type of agreement about rights referred to by Scipio is a positive agreement, to a partnership [societas]. In other words, it is a positive identification with one’s political community whose terms are secured by justice. And because Cicero’s account of rights is grounded in the inherent good of political society, an agreement about rights and the common good amounts to an agreement about the good of society. The good that justifies political authority—virtuous activity—harmonizes with the good that justifies rights, and the good of individuals living together in society. In addition to the rights defined by the political community, citizens also have responsibilities to secure and promote the common good. Extending Cicero’s public property metaphor, Bertrand de Jouvenal compares the shared institutions of a political community with a “network of roads, which each member of society uses for this own ends, and tends to spoil by the use he makes of it.”49 That is, over time, the bond of political friendship can weaken due to the vagaries of politics, social change, and maladapted norms. But if citizens embrace their joint responsibilities to maintain the political community, they can avoid social strife, making it possible to reform institutions without undermining their essential basis and functioning, which is grounded in the common good of political friendship. To summarize, the common good is the shared social condition of membership in a political community. Whatever differences exist in a society ultimately depend on the unifying idea of social membership in a common set of institutions, practices, and norms that are a prerequisite for living well. Social unity within a political society does not consist in substantive shared purposes and ends, but rather in a shared moral framework within which diverse purposes and ends are possible. This accommodates disagreement about the common good without abandoning the common good itself.

The Common Good and Individual Liberty Despite the accommodation of disagreement within a political community held together by political friendship, one may still wonder the extent to which persons are free, in both thought and action, to diverge from the norms of their political community. Does the common good come at the expense of liberty in the sense of undermining individual agency? Is the common good consistent with the exercise of practical wisdom that is constitutive of living well? While the nomoi aim at the common good, as I have argued, if the nomoi do not allow room for persons to innovate and exercise practical wisdom in ways that reform the nomoi, then the common good is detrimental to living well. This is not just bad for individuals; it’s bad for the political community, since the renewal and perpetuation of a political community’s institutions require the innovation made possible by enterprising virtue-seeking persons. The common good cannot necessitate a homogeneous and restrictive political community.

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The issue of reconciling the common good and individual liberty can be put in terms of the interaction between individual conceptions of the virtues and the existing social norms. Social norms emerge from the socially embedded perspective, prescribing rules and expectations according to the roles persons inhabit. However, to act virtuously, virtue-seeking persons need to bring practical wisdom to bear on what their roles require. But if the common good is constrained by the tie of political friendship, which itself consists in identification with and conformity to the nomoi of a community, there would seem to be little room for individual judgment. But such judgments are necessary because they allow us to reform our institutions, which have as their object the common good. So, we arrive at another dilemma. To advance the ends of persons, a political community needs to be open and able to absorb and transform external shocks from outside its own narrowly defined terms. But the common good also depends on the relationship of political friendship, which itself resides within those narrowly defined terms. We can approach this dilemma by inquiring about different forms of political order. Why, for instance, is the view I defend not essentially communitarian? As Charles Taylor has shown, there are really two issues at stake here.50 One is the kind of social ontology adopted, that is, whether my view is individualistic or holistic. Second, there is the issue of what Taylor calls “advocacy” or institutional recommendation, that is, what political order is required, given a conception of social ontology. Here we can distinguish a broadly liberal order from a collectivist one.51 An individualist social ontology takes individuals as the primary unit of social analysis and understands groups in terms of the actions of individuals, whereas a holist ontology takes social groups as primary and insists on understanding individuals through their membership in social groups. It might seem that a neo-Aristotelian view of social ontology must have a holistic ontology since Aristotle holds that the polis is in some sense “prior” to the individual.52 However, by now, we can see that the dichotomy between a holist and individualist social ontology is a false one. As I have claimed, we see that individuals are primarily members of social groups from the socially embedded perspective. But there is also an important sense in which individuals are prior to the group because they can exercise practical wisdom and alter the composition of their socially embedded circumstances. Social scientists explain this interdependency in terms of what they call “structure-agency” theory: “socially embedded individuals are neither ‘atoms outside a social context’ nor beings who ‘adhere slavishly to a script written for them by the particular intersection of social categories they happen to occupy.’”53 Instead, individuals and social groups mutually influence each other, defining the social structure while simultaneously allowing for its change through norms and ideas

100 Virtuous Persons in Good Institutions promoted by individuals. It follows from this social ontology that a political order should be stable, yet capable of reform, that is, a holistically grounded political order that embraces the role of individuals in maintaining and improving the political community. Historically, and as a matter of ongoing practice, it has been broadly liberal orders that have proven capable of this combination. Liberal orders depend on a culture and practice of free institutions, with rights protections, a balancing of power, and mechanisms for institutional reform that prevent rapid or frequent change. But a liberal order, as I have argued, is not only a set of institutions and rights. It also describes a relationship between citizens that allows them to act on the basis of political friendship for the sake of living well together. Thus, individual liberty—properly understood—does not consist in living however one wishes, but rather living in such a way that is good for oneself and good for one’s political community across time. As Aristotle, puts it “living in a way that suits the constitution should be considered not slavery, but salvation.”54 Living in accordance with the constitution means understanding the institutions, practices, and norms of a liberal order and how that order makes it possible to pursue the individual good. Institutions may promote liberty by defining and protecting individual rights.55 But institutions do not sustain themselves. The common good implies common responsibilities that instruct us how to use our rights for the sake of living well together. Hence, contrary to libertarianism, individual liberty is not an end in itself; it is a means through which we exercise practical wisdom in our lives and in the ways that we shape our shared institutions over time. Effective institutional reform requires the right to advocate for change without failing to fulfill the responsibility of maintaining the functions served by existing institutions. The former allows us to update our institutions according to new exigencies; the latter ensures that we do not neglect to preserve what we already have. Finally, it is a mistake to think of political institutions as oppressive or necessarily restrictive of individual liberty because they are coercive. For it is only through political institutions, as a common good we share, that we can use our liberty well to develop and exercise the virtues. The conditions of political society that the common good secures are the conditions for freedom. Without them, we are left in Hobbes’s antisocial state of chaos, where there is license, but no liberty. This is consonant with our earlier account of living well, understood as the exercise of practical wisdom realized within one’s socially embedded circumstances. Practical wisdom requires individual liberty in order to develop and exercise, but it is always freedom realized within the constraints of the roles we inhabit from the socially embedded perspective. Liberty depends on the social order furnished by the political community. This is ordered liberty, that is, freedom that is used well or virtuously. Our understanding of the common good

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and the value of community within a liberal order gives individual agency its proper due. Individual agency is bounded within the social conditions that are necessary for living well. Primary among those conditions is political friendship, understood as the set of shared institutions, practices, norms, and the act of sharing these things.

Conclusion To conclude, I note here a thought that challenges some fashionable ideas about social progress. One way in which modern societies have progressed has been to expand the bounds of political friendship ever more broadly, e.g., the pursuit of equality across multiple dimensions and domains. What’s more, liberal democratic societies have proven adept at accommodating an increasing amount of diversity within very large political communities (nation-states). It is sometimes noticed that one unfortunate result of this has been to tear at the ties of community leading to something like Taylor’s charge of “atomism” or Tocqueville’s “soft despotism.” There also seems to be a tendency that as political societies grow and become more diverse, they depend more on justice than on community. Consequently, justice becomes the sovereign virtue and begins to subsume the other virtues, leading to Byzantine rules and regulations for every conceivable social ill.56 Thus, discussions that used to be about what is good for the community, an activity that all must participate in, become dominated by discussions about what justice requires across all human communities, a responsibility that we may outsource to the political institutions of large nation-states or international political bodies. Consequently, persons come to emphasize more their individual rights rather than their individual responsibilities. This weakens the bases of political friendship and makes it difficult to agree about what is good for the political community. We oscillate between extreme stability and extreme change. But the mean of justice is lost. In the worst cases, this tendency leads to the stagnation and deterioration of societies, thereby risking all social progress, past and present. We should be cautious, therefore, in seeking to expand the bounds of political friendship beyond a capacity it can handle. Like the carrying capacity of a piece of land, our ability to form political bonds with others—essential for living well—may be limited in scale and scope.57 As I will later argue, this gives us a reason to view the role of political institutions in living well as maintaining an equilibrium among a balance of other social authorities, such as the family.58 It also raises the question of what institutions, practices, and norms remain to support the social tie that the political community depends on, as our societies get bigger and more complex without getting any closer or stronger. Justice draws lines between the moral purposes of each person, but we need political friendship to draw a circle around those who are united in a political community for the sake of living well together.

102 Virtuous Persons in Good Institutions Whether this can be achieved in the current political climate, I am unsure, for we risk forgetting entirely the once shared narrative out of which the bonds of political friendship might begin to regrow. But however useful a greater conceptual understanding of our problem might be, actions speak louder than words. We need more demonstrations of love and political friendship in public discourse and fewer empty slogans like “Love Trumps Hate.” For, if amity is going to triumph over enmity, then partisans on both sides of the political divide must recover the love of the good that allows us to love our fellow citizens, and cease to treat them like enemies.

Notes 1. Aristotle, Nicomachean Ethics, ed. Roger Crisp (Cambridge: Cambridge University Press, 2000), 1129b15. 2. Adam Smith, The Theory of Moral Sentiments (Indianapolis, IN: Liberty Fund, 1982 [1759]), Part VI, Sec. II, Ch. II (emphasis added). 3. Aristotle, Politics, trans. C.D.C. Reeve (Indianapolis, IN: Hackett Publishing, 1998), 1323a15. 4. Rawls, Political Liberalism, Expanded ed. (New York: Columbia University Press, 2005 [1993]), p. 146. 5. I follow and develop here Bertrand de Jouvenal’s view of the common good. See Bertrand de Jouvenal, Sovereignty: An Inquiry into the Political Good, trans. J.F. Huntington (Indianapolis, IN: Liberty Fund, 1997 [1957]), Ch. 7–8. 6. Martha C. Nussbaum, Love’s Knowledge (Oxford: Oxford University Press, 1990), p. 98. 7. Aristotle, Politics, 1253a. 8. Julia Annas, The Morality of Happiness (New York: Oxford University Press, 1993), pp. 223–6. 9. Aristotle, Politics, 1252a. 10. As John Stuart Mill recognized, both political authority and social sanctions are important constraints on individual liberty. See John Stuart Mill, “On Liberty,” in On Liberty, Utilitarianism and Other Essays, eds. Mark Philp and Frederick Rosen (Oxford: Oxford World Classics, 2015), p. 8. 11. Mill, “On Liberty,” in On Liberty, Utilitarianism and Other Essays, p. 47. 12. Pew Research Center, June 2014,“Political Polarization in the American Public.” 13. See Chapter 1. 14. Daniel Kahneman, Thinking Fast and Slow (New York: Farrar, Straus and Giroux, 2011), Part I. 15. Jonathan Haidt, The Righteous Mind: Why Good People are Divided by Politics and Religion (New York: Vintage Books, 2012), p. xx (emphasis removed). 16. David Hume, A Treatise of Human Nature, ed. L.A. Selby-Bigge (Oxford: Oxford University Press, 1978 [1739]), Bk. II, Pt. III, Sec. III. 17. Alasdair MacIntyre, After Virtue, 2nd ed. (Notre Dame, IN: Notre Dame University Press, 2003 [1981]), Ch. 1. See also Elizabeth Anscombe, “Modern Moral Philosophy,” in The Collected Philosophical Papers of G.E.M. Anscombe: Vol. 3. Ethics, Religion, and Politics (Oxford: Blackwell, 1981), pp. 26–42. 18. See Chapter 3. 19. MacIntyre, After Virtue, p. 252. 20. Anecdotally, I have found that even undergraduates will confirm this upon encountering and reflecting on Aristotle’s ethics. 21. See Arthur C. Brooks, Love Your Enemies: How Decent People Can Save America from the Culture of Contempt (New York: Broadside Books, 2019).

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22. Deidre McCloskey, The Bourgeois Virtues (Chicago, IL: University of Chicago Press, 2006), p. 90. 23. Cicero, On Moral Ends, ed. Julia Annas, trans. Raphael Woolf (Cambridge: Cambridge University Press, 2001), III. 62. 24. Cf. David Enoch, “The Disorder of Public Reason,” Ethics, Vol. 124, No. 1 (October 2013), pp. 174–6. 25. See Roger Scruton, The Meaning of Conservatism (South Bend, IN: St. Augustine’s Press, 2002), pp. 24–6, 29–30. 26. Smith, The Theory of Moral Sentiments, Part VI, Sec. II, Ch. II. 27. This is part of the process Plato traces from eros to love of the good itself in the Symposium. See Plato, Symposium, in Complete Works, ed. John M. Cooper (Indianapolis, IN: Hackett Publishing, 1997), pp. 457–505. 28. As Aristotle says “Factions arise from small issues . . . but not over them.” See Aristotle, Politics, 1303b15 (emphasis original). 29. Bernard Yack, The Problems of a Political Animal: Community, Justice, and Conflict in Aristotelian Political Thought (Berkeley, CA: University of California Press, 1993), p. 31. 30. Aristotle, Nicomachean Ethics, 1155a25–30. 31. This is the primary reason Rawls was reluctant to apply his political principles of justice within the family. See John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), pp. 164–6. 32. David Hume, “An Enquiry Concerning the Principles of Morals,” in Moral Philosophy, ed. Geoffrey Sayre-McCord (Indianapolis, IN: Hackett Publishing, 2006 [1751]), Sec. III. 33. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999 [1971]), pp. 109–12. 34. Michael Sandel makes a similar critique of Rawls in his Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), pp. 29–32. 35. Aristotle, Nicomachean Ethics, 1134a25. 36. David O’Connor, “Aristotelian Justice as a Personal Virtue,” Midwestern Studies in Philosophy, Vol. 13 (1998), pp. 425–6 (emphasis added). 37. G.A. Cohen, for instance, argues that while justice allows inequalities due to people’s choices, the value of community condemns those inequalities. See G.A. Cohen, Why Not Socialism? (Princeton, NJ: Princeton University Press, 2009), p. 37. 38. Aristotle, Politics, 1280b10. 39. See Charles Taylor, “Cross-Purposes: The Liberal-Communitarian Debate,” in Liberalism and the Moral Life, ed. Nancy L. Rosenblum (Cambridge, MA: Harvard University Press, 1989), pp. 159–82. 40. Ibid., pp. 167–9. 41. Ibid., p. 168 (emphasis added). 42. Michael Oakeshott, On Human Conduct (Oxford: Clarendon Paperbacks, 1975), II. 43. Aristotle, Nicomachean Ethics, 1167a25. 44. Ibid. 45. Ibid., 1167b.15. 46. Cicero, On the Republic, 1.39, quoted in Jed W. Atkins, Cicero on Politics and the Limits of Reason (Cambridge: Cambridge University Press, 2013), p. 130. 47. Aristotle, Politics, 1261a30–1261b5; Aristotle, Nicomachean Ethics, 1132b32– 1134a30, 1163b32–1164a2. 48. I argue against this view of rights in the following chapter. 49. de Jouvenal, Sovereignty, p. 154. 50. Taylor, “Cross-Purposes: The Liberal-Communitarian Debate,” pp. 159–82.

104 Virtuous Persons in Good Institutions 51. This particular taxonomy is teased out by Douglas Rasmussen and Douglas Den Uyl in “The Myth of Atomism,” The Review of Metaphysics, Vol. 59, No. 4 (June 2006), pp. 841–68. 52. Aristotle, Politics, I. 53. Mark Granovetter, “Economic Action and Social Structure: The Problem of Embeddedness,” American Journal of Sociology, Vol. 91, No. 3 (1985), p. 487. Quoted in John B. Davis, “The Conception of the Socially Embedded Individual,” in The Elgar Companion to Social Economics, eds. John B. Davis and Wilfred Dolfsma (Cheltenham, UK: Edward Elgar Publishing, 2008), p. 93. 54. Aristotle, Politics, 1310a35. 55. This is the subject of the following chapter. 56. As a representative of the former tendency, see Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Harvard University Press, 2013). 57. Garrett Hardin, “Tragedy of the Commons,” Science, Vol. 162, No. 3859 (December 1968), pp. 1243–8. 58. See Chapter 7.

Part III

The Role of Good Institutions in Living Well

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The Constraining Role of Institutions in Living Well

Institutions can enable or hinder our prospects for living well. John Rawls, for instance, gives, as a partial justification for his focus on the institutions of what he calls “the basic structure of society,” the reason that the basic structure institutions have profound effects on our initial life chances.1 They do so in at least two ways. First, institutions shape and limit our choices to the extent that the norms and rules of institutions may socially discourage certain kinds of actions (e.g., marriage vis-à-vis adultery), or outright legally prohibit others (e.g., monogamy vis-à-vis polygamy). Second, institutions are part of the circumstances in which we make choices. A society with institutions that do not generate high levels of economic growth, for instance, presents fewer opportunities for its citizens to choose from, and their prospects for living well may be accordingly constrained. Similarly, a society with institutions that limit certain forms of expression (e.g., pornography) will, in effect, foreclose the possibility of choosing certain kind of lives. Given the profound effects of institutions on our choices and circumstances, in what sense do institutions enable persons to live well? Political philosophers of distributive justice, for the most part, have primarily emphasized the ways in which institutions can affect our circumstances.2 What matters, for these philosophers, is that institutions realize a just distribution of resources, which usually implies a form of egalitarianism.3 Egalitarian principles of distributive justice, such as Rawls’s Difference Principle, ensure that each person has favorable circumstances to make their own choices in a way consistent with the choices of others. In this way, institutions guarantee the circumstances in which persons can exercise autonomy to choose a good life for themselves.4 From a eudaimonist perspective, egalitarian theories of distributive justice underemphasize the fact that institutions, in addition to shaping our circumstances, also enable (or hinder) living well by shaping or limiting our choices. While autonomy may be desirable for some, it is neither a necessary, nor a sufficient condition for a good life. It is not a necessary condition because some lives may be good, but not autonomously chosen, as plausibly many traditional forms of life are.5 Further, autonomy is

108 The Role of Good Institutions in Living Well not a sufficient condition for a good life, since some bad lives may nevertheless be autonomously chosen. Choosing for oneself is no guarantee that one will choose well. Thus, focusing solely on the circumstances that enable persons to live autonomous lives, ignores the important relationship between institutions and the choices that are available to, and ultimately made by, each person in an institutional context. Eudaimonism avoids these problems by focusing instead on practical wisdom—not autonomy—as the sine qua non of the good life. As I have argued, living well consists in the exercise of practical wisdom from within the circumstances of one’s life. Practical wisdom is a necessary condition for living well because it directs the other virtues and renders good the use of whatever external goods one pursues (e.g., wealth). For this reason, it is not possible, according to eudaimonism, to autonomously choose a good life without practical wisdom. Equally so, it is impossible for someone who autonomously chooses a bad life to be practically wise. Practical wisdom gives due weight to the roles of choice and circumstance in living well, since to exercise practical wisdom is simply to choose well within one’s socially embedded circumstances. These two aspects of living well require two roles for institutions in living well: (1) a constraining role, which allows persons to exercise practical wisdom in a political community with others and (2) a formative role, which enables persons to develop practical wisdom in an appropriately supportive institutional context. This chapter focuses on the constraining role by defending an institutional theory of rights. Rights are claims that persons have in virtue of their membership and participation in a political community that enables them to live well. Importantly, however, rights are the output of theorizing about institutions, not an input. Instead of imagining hypothetically rational individuals coming together to assert their preinstitutional rights, as social contract theorists do, we should think of rights as claims that emerge when persons cooperate in a political community that allows them to exercise practical wisdom. Rights protect the exercise of practical wisdom each person needs to live well.

Institutions and Practical Wisdom How do institutions contribute to living well? Since the virtues are required for living well, we may evaluate institutions in terms of their contribution to the virtues. While one aspect of the virtue of justice is to conform one’s actions to the legal and social norms of one’s society, institutions themselves have effects on the prevalence and content of specific virtues. As Aristotle puts it, “law requires us to live in accordance with each single virtue and forbids us to live in accordance with each form of wickedness.”6 Laws regarding the use and sale of intoxicating substances, for instance, may influence the distribution and conceptions of temperance in a society. Similarly, certain tax codes may promote more charitable giving and

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otherwise influence how persons choose to spend their money. Generally, then, to ask whether an institution is good is to ask whether it contributes positively to living well through the promotion of virtuous activity. Rather than assess each institution in terms of the many virtues, however, it is preferable to focus on practical wisdom, since this is the global virtue that directs the exercise of the other virtues. The practically wise person knows that this occasion calls for courage, for example. Such a person also has the practical know-how and emotional maturity to act courageously at the right time, in the right way, for the right reasons, and so on. For a person to become practically wise, they also must do so from rational choice (Aristotle’s prohairesis) for its own sake; they must choose for themselves to develop the virtues and act in a practically wise manner. In this sense, the practically wise person is self-directed. Practical wisdom is not something that can be granted to a person, much less performed for them. Rather, a person must rationally choose to develop and exercise practical wisdom in pursuit of living well. Given this conception of practical wisdom as requiring the capacity for self-directed choice, it may seem that institutions are fundamentally inimical to virtue. After all, institutions make demands on us, and they do so either with the backing of coercive political power, or the sometimes equally persuasive force of social opinion and censure. As John Stuart Mill put it, this “socially tyranny” can be “more formidable than many kinds of political oppression, since .  .  . it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.”7 The point, however, is not that institutions are morally defective insofar as they are coercive. Instead, the point is that the coerciveness of institutions should focus our attention on the ways that they can subvert or substitute for the self-direction that is necessary for persons to exercise practical wisdom and live well. This is so because, as I argued in Chapter 2, institutions are a necessary precondition for virtuous agency. The ideal of the practically wise person is not the self-sufficient person, who minds their own business and has no need of institutions. Aristotle comments on this misconception when he observes that “one’s own good will presumably not exist without the management of a household and without a political system.”8 Aristotle comments further, that minding one’s own business and making one’s own choices is no simple matter and ought to be examined carefully. One aspect of that examination will be thinking about what practically wise persons must do in order to develop virtue. But another aspect is thinking about the institutions that enable the exercise of practical wisdom, supposing practical wisdom plays the directive role in living well that we have maintained. Good institutions, then, enable us to live well by encouraging and safeguarding the development and exercise of practical wisdom. Practical wisdom depends, first, on institutions that allow and encourage persons

110 The Role of Good Institutions in Living Well to become practically wise, and second, on institutions that maintain a framework within which practically wise persons can be self-directed. The former is what I will call “the formative role,” which I examine in the next chapter, and the latter is what I have called the constraining role, which concerns us presently. In what sense do institutions perform a constraining role? We may refer here to Daniel C. Russell’s idea that institutions are “tools of preventative problem-solving.”9 The idea of institutions as tools fits the present account, since we have recognized that institutions are necessary for living well, but also a possible hindrance, since institutions also constrain action, and therefore can impede or enable virtuous activity. Like tools, then, institutions can be used well or badly. They are used well when they enable us to develop and exercise the virtues, and they are used badly when they hinder us from doing so. The next stage in the argument is to examine more closely how constraints are built into the idea of living well and subsequently how such constraints may be realized in institutions. For just as living well imposes constraints on our behavior, so too institutions influence our behavior by constraining the set of actions available to us.

Living Well and Interpersonal Constraints Which constraints must institutions realize in order to enable persons to live well? Although I will later defend what I call an “institutional” theory of rights, because eudaimonist virtue ethics is not a rights-based moral theory, the familiar view of institutions realizing a pre-institutional set of “natural” rights is not available to us. Roughly speaking, this is the “side-constraints” theory of rights defended by Robert Nozick and others.10 The rights-as-side-constraints view sets clear limits on institutions such that they respect (and realize) individual rights. It may be argued, for instance, that the natural right to property is necessary for institutions to realize, since it allows individuals to pursue their own good in their own way.11 Ultimately, the view I defend may arrive at similar conclusions to a natural rights view, but for now, we must look elsewhere for its theoretical underpinnings. It is sometimes argued that eudaimonism cannot account for the sorts of deontological constraints championed by rights-based theories because eudaimonism prioritizes the concept of the good over the concept of the right. This is the basis for Henry Sidgwick’s distinction we encountered earlier between “attractive” and “imperative” normative conceptions.12 According to Sidgwick, an attractive normative conception characterizes ancient Greek ethical theories that begin with the good, in the sense of what a properly virtuous person wants or desires. In contrast, an imperative conception characterizes modern ethical theories that begin with the right, in the sense of what a person morally ought (or must) do. But

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from a eudaimonist perspective, as we have seen, Sidgwick’s distinction is artificial. Living well is a source of attraction toward virtuous actions, which themselves imply imperatives that constrain action. The concept of right is built into the meaning of specific virtues such as justice. Someone, therefore, who desires to be virtuous as part of a good life, also must recognize the set of constraints a just person characteristically recognizes. How can eudaimonism account for the type of deontological constraint characteristic of institutions? Mark LeBar observes, “ends .  .  . do constrain. For having a particular end E—an object of choice I have reason to act upon—constrains me from acting in ways that would compromise the achievement of that end.”13 For example, if I have resolved to lose weight, choosing that end gives me reasons not to eat high caloric foods. In doing so, I narrow my choices to actions that do not undermine the end I have chosen for myself. Our choice of hypothetical imperatives of this sort will always close off other choices that compete with or undermine the end one has most reason to choose.14 And since, according to eudaimonism, living well is the end one has most reason to choose, living well imposes constraints on my actions. As LeBar puts it, “[t]his constraining work is a reflection of the fact that no end can be pursued without opportunity costs.”15 Living well cannot be pursued except by recognizing constraints on one’s choices and actions. How do the constraints inherent to living well relate to practical wisdom? Practical wisdom requires constraints, both on one’s own actions and on the actions of others. Since living well is fundamentally social, and we exercise virtue in a political community with others, practical wisdom requires interpersonal constraints. Persons must be capable of being self-directed, which implies the necessity of institutions that realize publicly recognized and enacted interpersonal constraints. I cannot, for instance, use a person as a mere means to my end, since that person has ends of their own which I must respect as a person whose end includes living socially with others. In this manner, eudaimonism may recognize what are usually considered deontological constraints.16 Once I recognize that I must exercise practical wisdom for the sake of living well, which must take place in a social context, I must acknowledge that there are interpersonal constraints on my treatment of others. What about the sense in which living well gives us reasons for action? LeBar characterizes the attractive nature of ends thusly, “[i]t is easy to see how ends—as objects of actions we have reason to seek—can be attractive, if we think about the objects of action that are suggested to us by desire.”17 Living well is attractive as an end because we want it for its own sake. But how do we know what to desire? For, to become practically wise, it is not sufficient that we pursue and satisfy our desires. Rather, we must understand what we ought to desire, that is, what makes sense for us to desire, given who we are and the circumstances we inhabit.18 This is an end that mere desire will not generate.

112 The Role of Good Institutions in Living Well Here, then, is another sense in which living well constrains: it gives us reasons to choose actions that we ought to desire, that is, those that constitute living well. This excludes acting on our untutored or brute desires. Living well is not the subjective terminus of a process of mere desiring, but of an end that has been determined by practical wisdom. This second point suggests that, in addition to constraints, living well requires a set of conditions for its proper development.19 Living well requires constraints in order that persons may exercise practical wisdom. But it also requires conditions such that persons develop practical wisdom by making choices about what they have most reason to desire. That practical wisdom requires constraints, both on oneself and on others, further explains why we need institutions. We need institutions to coordinate our actions in such a way that persons can pursue their ends with others when their fundamental purposes conflict. Institutions take some choices off the table so that practical wisdom can operate within a game where the rules are known to all beforehand and enforced accordingly. Meanwhile, the sense in which living well requires conditions accounts for the formative role of institutions. Since practical wisdom requires development, we need a system of laws that applies to all, structuring the institutional framework, so that persons become capable of making practically wise choices. The foregoing suggests that the constraining role of institutions has something to do with the ways in which institutions constrain interpersonal action. One way institutions do this is by defining rights that articulate the claims each person can expect to be respected, so that they can act in a practically wise manner.20 However, since the side-constraints view of rights is not available to us, we need an alternative way of thinking about the connection between rights and virtue. In the next section, I introduce what I call an “institutional” theory of rights that allows us to argue for rights without a prior commitment to a set of pre-institutional or “natural” rights.

An Institutional Theory of Rights According to standard rights-based theories, institutions must be rightsrespecting, meaning that they do not violate, and give due consideration to, a canonical set of rights. Most of the debate, therefore, goes into determining what our rights are, perhaps by taking account of fundamental human needs, or by arguing for a set of important interests. In this sense, rights are pre-institutional; rights are moral claims that antecedently constrain what institutions are morally justified. But while this view has been dominant, there is a superior way of thinking about rights that does not disconnect rights from institutions and living well. Instead of thinking of rights as pre-institutional constraints, I propose that we think of rights as claims that emerge within institutions that function to enable us to live

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well. On this view, institutions come first, and rights are specified by the claims that are realized by good institutions, that is, institutions functionally related to living well.21 This institutional account of rights is committed to David Hume’s claim that rights are “naturally unintelligible.”22 By “naturally unintelligible” Hume means that when we use notions like “right,” “obligation,” “promise,” etc., we are assuming a background of social practices and institutions in which these concepts are meaningfully deployed. For example, the concept of property—what is mine and yours—depends on the existence of a practice of property rights. Just as plausibly one cannot have thoughts without a language (per Wittgenstein), we cannot have the concept of property rights without first having a practice of property rights within which the concept has meaning.23 Hume’s critique of natural rights fits well with what I have called the fact of social embeddedness. For we have role obligations in virtue of our relationships to particular persons or institutions, e.g., obligations to family or to one’s employer. Further, there are obligations we have in virtue of our membership in a political community. But none of these obligations or duties are correlative of a set of pre-institutional rights. On the contrary, we recognize such obligations because they are constitutive of social practices and institutions that have implicit authority for their role in living well. So too with rights: we recognize rights claims because they are part-and-parcel of a political tradition, consisting of certain institutions that are necessary for living well. But disconnected from the relevant traditions and institutions, such rights claims are just “talk” or Bentham’s nonsense upon stilts; they are not naturally intelligible.24 As Rosalind Hursthouse has noticed, the challenge for an institutional theory of rights is to be able to account for so-called “natural rights.”25 For instance, on the institutional view, can we say that persons have a right to life? A natural rights account can say that persons have a right to life because there are pre-institutional natural rights that constrain our adoption of certain practices and institutions that would violate such a right. Further, pre-institutional rights give us the conceptual resources to criticize and update our ongoing practices from a moral point of view. For example, a political system that excluded some classes of persons from voting could be said to violate a natural right to political participation. But on the institutional view, since there are no pre-institutional rights, no such violation has occurred in a society with this discriminatory practice. Can an institutional account of rights explain our moral convictions about rights without appealing to natural rights? Hume himself identifies the protection of property rights with justice.26 Perhaps justice is the independent moral norm that constrains our practices. Hume’s view, however, is not that justice per se is central to our evaluation of practices, but that the role played by the norms and practices we call “justice” is central.27 And these norms can fulfill their function without themselves

114 The Role of Good Institutions in Living Well being just in any substantive sense. A slaveholding society, for instance, might persist with a set of functioning social practices that secure relative peace and order, but this is plainly not justice. Thus, the natural rights theorist will retort: we must identify justice with the protection of natural rights. Only natural rights can morally constrain institutions. We appear to be caught between a purely conventionalist theory of rights that is vulnerable to the charge of moral arbitrariness in what our rights are and a natural rights theory that prioritizes contested moral claims about rights, while ignoring the connection between institutions and living well. Hursthouse attempts to escape this dilemma by making a case for a modified conventionalism, according to which we identify rights with the institutions of well-functioning societies.28 And she explains a well-functioning society in terms of what I have called the Aristotelian Idea, namely, that the purpose of a political community is to enable its members to achieve eudaimonia. Rights, for Hursthouse, then, ultimately depend on the connection between good institutions and living well. We can develop Hursthouse’s view by building on a neglected insight of Elizabeth Anscombe’s about rights.29 Anscombe claims that there is, in fact, “a way of arguing for a right without appeal to custom, law or contract; and similarly of arguing that some customary right is no right but is, rather, a customary wrong.”30 The thing to attend to is modal statements of the type “x is necessary,” where “necessary” means “that without which some good will not be obtained or some evil averted.”31 Anscombe’s idea is that there are things we need if we are to be able to live well together, including certain institutional arrangements. Some institutions, then, might be necessary in this sense, given the premise that our aim is living well, and the hypothetical imperative that living well comes with a set of institutional requirements. If Anscombe is on the right track, then an institutional theory of rights can explain how institutions enable us to live well without appealing to pre-institutional natural rights. Let’s examine this idea further. Anscombe first notices that rights claims issue in what she calls a “stopping modal,” e.g., “you cannot eat that piece of cake; it belongs to George.” Now, the second half of the statement appears to give a reason for the first. But the interesting thing, Anscombe notes, is that you cannot explain this as a reason without referencing the rules of an existing property practice, and the first half of the statement just is a rule of a property practice. It would be wrong to eat the cake because it’s George’s cake according to the rules of a property practice. But what justifies those rules? The two statements are inseparable precisely because of Hume’s point about natural intelligibility. We cannot explain why the cake belongs to George without first becoming acquainted with the rules of a property practice.32 But such a property practice is precisely what needs explaining. The way to explain George’s property right is to think about the second half of the statement about rights, “it belongs to George.” Put

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another way, we might say “this cake is for George to eat.” Now, we have something like the claim that it is George’s call to determine what happens to the cake. He, and nobody else, has a moral power to determine its use. Further, he has a liberty-right to use it as he wishes and a claim-right against others using it.33 Conceptually speaking, this is what it means to have a property right.34 But why should we think George has these special claims outside of the fact that he participates in a property practice? We could claim that there is a natural right to property. Eric Mack, for instance, has argued for the natural right of property meaning that persons have a right not to be excluded from participating in an ongoing practice of property rights.35 Mack’s view is a kind of hybrid between a pure natural rights view and an institutional view. I do not, however, think it is a stable hybrid because Mack does not consider Hume’s claim that rights are naturally unintelligible outside of existing practices, and therefore it is unintelligible to claim that persons have a right to be included in a practice. Returning to George’s property rights, we can regard George as having these claims in virtue of his role as a person who must perform certain necessary tasks for the sake of living well in a political community with other people, some of which arguably require owning some property. This implies the practical necessity of a property practice. This is the functionalist idea that justifies institutions as tools, Aristotle’s idea of “that without which some good will not come about.” In this case, “some good” refers to the highest good, the final end of practical reasoning: living well. Our claim is that persons cannot live well without being able to perform certain tasks, e.g., acquiring property. And the basic idea is that people should have what belongs to the performance of a task that is, in the previously stated sense, necessary. If, for example, my wife asks me to take the garbage out, but stipulates that I must not use my arms to do so, there is a sense in which her request is unreasonable. If X must be done— the thought goes—we should have what is necessary to accomplish X. The foregoing reveals the following structure of property rights according to an institutional account of rights. There are four elements. First, there is who participates in a property practice, in our case, George. Participants in a property practice are determined by the role a person occupies as a member of a political community with the relevant institution(s). Second, there are tasks necessary for persons to live well, in this case, having control over extrapersonal objects. Third, there is the modal sense of possibility, that is, what persons need for it to be possible to carry out the necessary task. Fourth, there is a rights-claim, which takes the form of a stopping modal, e.g., “you cannot eat that piece of cake,” that derives from the constitutive rules of a given property practice. These modal statements are claims made within an institutional practice. We can then explain the justification of an institution itself by appealing to a higher order modal statement about human need or well-being,

116 The Role of Good Institutions in Living Well that living well is the ultimate end for which a given task is necessary. A well-functioning society consists in institutions that secure the constraints persons need in order to live well, and rights are claims that persons have in virtue of participating in these institutions. Whereas on the natural rights view, we ask which institutions best realize our natural rights, on an institutional theory of rights, we ask which institutions function to enable us to live well. And this is a question that cannot be asked except from within ongoing institutional practices in comparison to some alternative institutional proposal. The foregoing argument augments the institutional theory of rights with a functionalist justification. Rights presuppose institutions. That’s the Humean claim. In this sense, rights are conventions subject to variation across different time periods and societies according to the local and temporal circumstances shaping how persons live well. There are, however, some institutions that are functionally related to living well. That’s the Aristotelian claim. The laws of these properly functioning institutions are identified as rights; they track what enables human beings to live well. According to the conventionalist strain of argument, rights are always variable to the circumstances that affect how persons live well in a society. But according to the functionalist strain, rights are also invariable in the sense of serving the function of living well.36 Some rights, for example, such as the right to life and the corresponding institutions of the criminal justice system that prohibit and punish murder and threats to life, may well be universal. But an institutional theory of rights does not prescribe in advance one schedule of rights claims. The best we can do is to identify different domains of rights. In our own societies, for example, one aspect of rights is jurisdictional. Property rights divide up physical space and resources to deal with (among other things) the inconveniences of common property usage. A second aspect of rights is social. Through trial and error many societies have learned that insisting on the truth in matters of religion and other controversial subjects leads to social and political strife. A right to freedom of thought and religion is a solution. We also might think of rights as protecting certain material interests, such as social safety nets. Since persons are less likely to see the benefits of peaceful social cooperation when they are extremely poor, some institutions may support rights claims to a minimum of social assistance. In all of the above cases, however, the rights are institutional or practice-based, not individual or natural.

Nussbaum’s Capabilities and Other Rights-Based Approaches It is worthwhile to compare the institutional theory of rights with other neo-Aristotelian accounts of the role of institutions in living well. I focus here on two very different accounts: (i) Martha Nussbaum’s capabilities approach to distributive justice and (ii) Douglas Rasmussen and Douglas Den Uyl’s neo-Aristotelian theory of Lockean rights. We will see that

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each emphasizes, in different ways, first, the sense in which living well requires constraints so that persons can exercise practical wisdom to make choices, and second, the sense in which living well requires conditions that set the background environment against which persons make choices. Neither, however, fully captures the relationship between institutions and living well, as articulated in what I have called the constraining and formative roles. Nussbaum’s capabilities approach is primarily concerned with ensuring that citizens have the requisite capabilities they need so that they can make choices about living well.37 While her list of capabilities is openended, because the capabilities are supposed to be a way for thinking about the moral foundations of constitutional law, Nussbaum’s capabilities are closely tied to the protection of standard rights in a liberal democratic regime.38 This also means that citizens are free to pursue their own conception of the good: “What we are aiming to secure to people are precisely the conditions in which each of them, as individuals, will be able to exercise choice and to function according to their own practical reason.”39 Thus, for Nussbaum, the primary role of institutions in living well is to provide the circumstances in which citizens live well should they choose to do so. What matters is not that people actually function one way or another, but rather that they have the capabilities requisite for functioning, which take on value when chosen by individual persons. In this sense, Nussbaum’s is a political, not perfectionist liberalism.40 Nussbaum’s conception of living well originates in Aristotle’s discussion of the virtues. Her original contribution, however, shows how the virtues serve as a kind of shorthand for understanding universal aspects of human experience. This is what she calls the nonrelative sense of the virtues. To understand the virtues in a nonrelative sense, first “isolate a sphere of human experience that figures in more or less any human life” [e.g., fear of danger]. Then “[t]he ‘thin account’ of each virtue is that it is whatever it is to be stably disposed to act appropriately in that sphere.”41 Thus, courage is the virtue having to do with the appropriate way of acting in the face of danger. Temperance is the virtue having to do with bodily pleasures and pains, and so on. While different cultures and societies disagree about specific conceptions of courage and temperance, they are nonetheless talking about the same thing; they share the virtue concepts. So, for Nussbaum, the virtues enter our moral language as specifications or summaries of what it means to act well in particular spheres of human activity. These common spheres of experience can then serve as a basis for an overlapping consensus (in Rawls’s sense) about what a good human life consists in. To this end, Nussbaum’s conception of living well identifies an openended list of valuable functionings that any good human life should have, such as basic nutrition, affiliation with others, leisure, and having a connection to nature. Nussbaum calls this the first stage of what she terms

118 The Role of Good Institutions in Living Well the “thick vague conception” of the good life.42 The second stage moves from the list of important spheres of any good human life to a list of related capabilities: e.g., being able to live a normal healthy human life, being able to have meaningful relationships with others, and so on. Nussbaum claims that this minimal theory of the good shows the ways in which a human life is diminished if it lacks any of the capabilities. Hence, political institutions should ensure that all citizens have the opportunity to live worthwhile lives. This task or aim of political institutions is what unites Nussbaum’s ethical theory of essential human functionings to her political program of ensuring persons have the requisite capabilities for living well. For instance, Nussbaum writes, “citizens are to receive the institutional, material, and educational support that is required if they are to become capable of functioning in that sphere according to their own practical reason.”43 The role of political institutions, for Nussbaum, then, is to get everyone across the capabilities threshold by tailoring all-purpose means such as goods, wealth, income, educational opportunities, and so on to each person’s circumstances of choice. The good for each person will then consist in making choices from a set of valuable human capabilities. Nussbaum synthesizes well neo-Aristotelianism with the assumptions and features of modern liberal democracies. Contrary to Aristotle, the capabilities approach does not insist on a single conception of living well. Rather, the conditions of living well must be chosen for oneself. This puts Nussbaum firmly in the camp of political liberalism. But because of this focus, it seems that Nussbaum has not really explained the relationship between ethics and politics. The capabilities approach, after all, is an alternative to other standard theories of distributive justice that specify a metric for equality, e.g., primary goods, resources, opportunities, etc. We are told that it is the task of political institutions to promote the capabilities, but not what the connection is between the ethical value of the capabilities and the role of political institutions in securing the capabilities. Instead, Nussbaum assumes that institutions—whatever they are—must realize a theory of justice, for which the capabilities approach provides an answer. But this does not show the relationship between institutions and living well, but rather assumes it. At best, Nussbaum can argue that her list of capabilities provides a conception of living well that is compatible cross-culturally and within the diverse conditions of liberal democracies. But her ambition of insisting on a discrete list of capabilities may diminish the approach’s efficacy in securing the institutions necessary to realize specific capabilities, since capabilities are fundamentally tied to institutions. We would do better, then, to start with institutions that are necessary for living well, rather than specify a wish list of capabilities for which institutions may not yet exist. In this way, the capabilities approach suffers from the same weaknesses as natural rights theories, which are (a) determining which

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rights are natural rights and (b) identifying an institutional context that realizes them. Finally, Nussbaum focuses most of her attention on what institutions can do to help citizens develop practical wisdom. But this ignores, first, how institutions can sometimes undermine citizens’ exercise of practical wisdom (because of the ever-present danger of institutional corruption), and second, what citizens need to do for themselves to become practically wise (i.e., make self-directed choices).44 Put another way, Nussbaum doesn’t fully acknowledge the directive nature of practical wisdom and how institutions may sometimes interfere with self-direction. In her list of capabilities, for instance, practical reason appears alongside the other capabilities as goods which are valuable for their own sake.45 But as eudaimonism holds, it is the proper exercise of practical reason— practical wisdom—that makes the other capabilities good.46 Whatever value the capabilities have, their value is not on a par with the value of practical wisdom. Rather, they are made valuable by practical wisdom. Unlike Nussbaum, Rasmussen and Den Uyl’s (henceforth RDU) version of neo-Aristotelian classical liberalism takes seriously the idea that ethics and politics might be incompatible because the coercive enterprise of politics conflicts with the nature of living well as a self-directed exercise of practical wisdom.47 Following Aristotle’s idea that the virtues must proceed from rational choice [prohairesis], RDU observe that this may rule out a role for political institutions in living well to the extent that politics as a coercive enterprise necessarily and unavoidably constrains choice. As a solution, they argue for an account of Lockean rights as metanormative principles that constrain the ambit of political institutions. Metanormative principles are principles that apply to the political/legal order, the space within which ethical activity takes place. This ensures that diverse persons’ conceptions of living well can coexist (what they call “liberalism’s problem”). On this basis, RDU argue for a right to negative liberty as the unique solution to liberalism’s problem, which ensures “that the various forms of human flourishing are not in structural conflict.”48 RDU’s argument for the right to negative liberty is a consequence of their conception of the pluralistic character of human flourishing. Central to their account is self-direction, which is the capacity for choice (or virtuous agency) that makes possible the exercise of practical reasoning, and so practical wisdom, the proper exercise of practical reason. Persons will not be capable of self-direction, RDU claim, if they lack political liberty, the state of being free from coercion. A right to negative liberty, thus, ensures that persons are not subject to coercion, and so are able to pursue living well in a self-directed way. But the right to negative liberty is not justified “in terms of either achieving or encouraging that ultimate end [i.e., living well], or even, in general, making it possible.”49 The right to negative liberty is justified in terms of meeting the criteria of a

120 The Role of Good Institutions in Living Well metanormative principle that makes possible the coexistence of persons living well together. It is human flourishing that places limits on what counts as the appropriate ethical basis for a metanormative principle. In particular, RDU argue for the right to negative liberty as uniquely suitable for a metanormative principle because it safeguards self-direction, which “is appropriate for individuals . . . because it is the very condition for the possibility of any individual in any circumstance being practically wise and thus self-perfecting.”50 This means that positive measures such as Nussbaum’s capabilities approach that provide citizens with educational opportunities (and other goods) in order that they may develop practical wisdom are not metanormatively appropriate. For, according to RDU, “if we are truly speaking of self-direction, it is not something for which one can provide assistance.”51 That is, no separate person or institution can perform one’s own act of self-direction. We must choose to live well for ourselves, as self-directed agents. RDU’s version of neo-Aristotelian classical liberalism provides strong support for a conception of living well as (a) realized in the exercise of practical wisdom and (b) particularized to each person’s nature, circumstances, and choices. Living well cannot take place without the choices persons make in a diverse set of circumstances that results in the fundamentally pluralistic character of human flourishing. However, because of the coercive and uniform character of political institutions and their potential to undermine the bases of self-direction, RDU conclude that political institutions have no role in living well apart from providing the general social framework within which living well is neither more likely nor actualized, but merely possible. RDU’s view resembles my own in several ways. We both acknowledge the need for an institutional/legal/political framework within which it is possible for persons to exercise the virtues and live well. We also share a conception of living well as fundamentally about the exercise of practical wisdom, lived socially and cooperatively in a community of other human beings. I also share RDU’s view that rights are (part of) the solution to what they call liberalism’s problem. The major difference, however, is that they deny a role for political institutions in living well. The purpose of political institutions, for them, is not to achieve, encourage, or even make possible living well, but rather to ensure that different conceptions of human flourishing coexist. As a consequence, they see rights not as tools that we make use of through institutions, but more like axiomatic normative constraints that an institutional arrangement must satisfy. In this respect, their view of rights as metanormative principles makes the same mistake as natural rights theories in disconnecting rights from institutions, and institutions from living well. The second thing to note is that RDU treat sociality as a necessary ingredient in living well, but not as a fundamental feature of the socially

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embedded context within which we live well. They do not acknowledge the fact of social embeddedness. As I have argued, sociality is both an ingredient in human flourishing and part of the context in which we develop the virtues required for living well. If living well is not atomistic and moral obligations are a function of practical wisdom—to which RDU assent—we must take seriously the socially embedded nature of those obligations, which include rights-claims. These are the materials for practical wisdom. We learn, develop, and exercise practical wisdom in a political community, and a political community is shaped, in turn, by persons who are practically wise. But as I argued in the previous chapter, neither atomism, nor holism describes adequately the relationship between institutions and persons. Persons shape and are shaped by the institutions in which they live. The point is not to blindly justify the status quo obligations generated by existing institutions, but rather to ask how they fit into a virtuous life as a whole. This is why I have claimed that a political community is central to the socially embedded character of the virtues. When we reflect ethically on our lives, we already have a life lived under the auspices of some political community or another. But the political community is not an abstract coercive order that must be a priori justified. For this reason, I do not justify rights as metanormative principles, nor on perfectionist grounds, that is, as required by a substantive conception of the human good. Rights are institutional artifacts; they are claims that emerge from persons living well together in a political community. In this way, rights do not govern or constrain metanormatively the creation of the political/legal order; they are the output of institutions functionally related to living well. There must be normative limits on political institutions considering the threat coercion poses to living well, but there is no a priori requirement that political institutions be constrained by a right to negative liberty. Such a right, if it exists within some institutions, will limit certain coercive abuses of political authority, but not a prohibition on coercion as such. Coercion may be an evil, but it is a necessary evil, a tool for coordinating action for the sake of living well.

Institutions Necessary for Living Well How, then, should we go about identifying the institutions necessary for living well? In discussing Nussbaum’s capabilities approach, which holds that certain things are necessary for living well, e.g., “food, clean water, family love, [and] above all an education,” Hursthouse comments, “[i]f this were correct, then a just society, whose purpose is the eudaimonia of its members would have laws or rules securing these goods insofar as it is possible to do so.”52 According to Hursthouse, then, to identify the institutions necessary for living well, we first specify what people need to live well, and then define “good institution” as whatever

122 The Role of Good Institutions in Living Well institution  would  ideally secure such goods insofar as it is possible. Hence, if, for the sake of argument, healthcare is necessary for living well, institutions that guarantee healthcare are also necessary for living well, and thus institutions that do not are, to that extent, unjust. But, as we have seen in our discussion of Nussbaum’s capabilities approach, this view gets things backwards. For while we are relatively clear about many of the goods that we need to live well, the problem of practical reasoning in politics is determining how best to secure such goods. To simply proclaim that a just society would have laws that secure healthcare for its members is not the same as identifying the institutions that effectively meet this need in a particular society, at a particular place and time. Thus, instead of asking “what institutions would be necessary for living well?” we should ask “what institutions have, in fact, enabled us to live well?” The reason for insisting on this phrasing of the question is epistemic.53 For the rule “a well-functioning society must provide healthcare for its citizens” leaves open the institutional arrangements that would best satisfy such a rule. But absent the crucial specifics of implementation, the rule is idle. For such institutional arrangements are highly dependent on the particulars of the society in question, and the successful implementation of which is a function of practical wisdom, not theoretical stipulation. Thus, the critical issue is not the relatively simple task of identifying what goods are necessary for living well, but the difficult one of discerning which institutions reliably produce and secure such goods. We should be careful, therefore, to assume that political philosophers have the kind of knowledge that would permit us to claim, for example, that institutional arrangement A would secure good X, which is required for living well, and therefore preferred institutional arrangement A is morally required. Practical wisdom is not just necessary for living well; it is necessary for determining which institutions reliably enable practical wisdom. So, given that epistemic limitations on political theorizing rule out the inference “X is necessary for living well, therefore there must be institution Y that secures X,” what is the alternative? How can we identify institutions that enable us to live well? I believe there are two ways. First, we can take a historical perspective. The fact that an institution has existed and served human purposes over time gives us a prima facie reason to believe that it functions to enable us to live well. For instance, rather than defending property rights on natural rights grounds, according to my view, we can observe that property rights have proved an effective institution for constraining interpersonal actions so that we can make the most out of scarce resources. Defending existing institutions draws on the thought that we should conserve the value of institutions that have demonstrably worked and thus fulfilled a necessary human function. The second way is more difficult to grasp and articulate. While any well-functioning society consists of a relatively stable set of institutions that has endured over time, as I argued in Chapter 4, every society needs

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well-functioning reform mechanisms to update its institutions. The historical perspective needs supplementing with a forward-looking perspective. For example, why was it desirable, from the perspective of living well, for many democratic societies to expand the franchise to women in the beginning of the twentieth century? Since we cannot appeal to a natural right to political participation, the answer must be that women’s suffrage was argued to be a better institution for serving the function of enabling persons to live well, given the circumstances of the time. We are always evaluating existing institutions in terms of new possibilities that shape how persons live well together in a political community. The fact that it can be difficult to determine when this is the case shows that it is sometimes difficult to determine exactly the contours of living well when we are faced with changes in our environment and circumstances. There is no view from nowhere from which we can determine what universal rights we ought to have at a given moment. Similarly, there is no view from nowhere from which we can determine which institutions would best enable us to live well. The alternative to the view from nowhere is the view from where we are. The place to begin the discussion of which institutions enable us to live well is the existing political traditions of our own societies. Our common law tradition, for instance, which includes property rights, freedom of expression, and freedom of religion, has performed remarkably well in enabling persons to exercise practical wisdom primarily by recognizing constraints on others (including political agents). But these institutions only function properly because they have grown up with the local populations. Thus, it would be absurd to claim that the English common law tradition would function to enable every society to live well, no matter the circumstances. Similarly, as Americans have learned too late, it is not always possible to export political systems to unaccustomed populations. It is then quite possible for societies to evolve different institutions that equally well serve their citizens’ interests in living well. To acknowledge this point is to acknowledge that a lot of what passes as “rights-talk” is really disagreement about different views of the good life.54 Ongoing political debates about institutional design reflect deeper disagreements about what people need to live well, which are ultimately rooted in our shared (but conflicted) political traditions and history. The debate over the right to healthcare in the United States, for example, is not over whether healthcare is necessary for living well—no reasonable person disputes that we need healthcare to live (well). Rather, the debate is about (a) what institutions best secure access to high quality and affordable healthcare and (b) the moral character of such institutions with respect to people’s choices and circumstances. One side argues that a nationalized healthcare service is the best way of satisfying (a), while with respect to (b), we should address the fundamental unfairness in citizens’ disparate

124 The Role of Good Institutions in Living Well circumstances. The other side, in contrast, argues that a privatized healthcare system is best, while emphasizing (b) the moral importance of choice and responsibility in the individual provision and consumption of healthcare resources. Since these political beliefs stem from different conceptions of living well within a political tradition that allows disagreement about living well, there is no reason to think this kind of political disagreement is eradicable, nor would its eradication be desirable. As I argued in the previous chapter, to aim at the common good in the face of political disagreements of this kind might consist of no more than maintaining the bond of political friendship, thus allowing both sides to disagree amicably, and perhaps, productively on the basis of ongoing political compromises. The role of politics, then, is to moderate disagreements, reach compromises, and allow for decisive political wins through publicly recognized and endorsed institutional procedures. The alternative is definitive of a strain of antiliberalism: to eliminate disagreement, abhor compromise, and win at all costs, even if outside of institutional norms and procedures.

Conclusion I have argued that the first role of institutions in living well—the constraining role—is to bring about and maintain the constraints on social cooperation required for persons to exercise practical wisdom together. Institutions exist not for the sake of convention or custom merely, but for the sake of the good life, or as Aristotle puts it, “all human beings seek not the way of their ancestors, but the good.”55 But seeking the good does not require us to adopt natural rights theory. Seeking the good consists in piecemeal advances toward the human good through good institutions. Natural rights theories often begin with a basic moral claim—definitive of liberalism—about the importance of pursuing one’s good in one’s own way.56 But rather than attempting to derive a set of natural rights from this basic moral claim, we would do better to first understand what it means to pursue the good and how that understanding contours our moral evaluation of institutions. The view I have defended explains supposed natural rights in terms of institutions that have reliably served the human good. While there are no pre-institutional natural rights on this view, it might nonetheless be understood as founded on natural justice, understood as what human beings (naturally) need to live well together, which is part of a complete understanding of the human good.57 The final stage in my argument is to examine the second, and arguably, more important role for institutions in living well: the formative role. For we learn and develop our capacity for practical wisdom in the social context of institutions. We become practically wise as citizens, parents, friends, students, employees, and so on. While any individual human being is in principle capable of choice or self-direction, we become self-directed

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persons by cooperating with, and learning from, others in the institutions of civil society, which are suitably framed and supported by political institutions. Living well requires not mere choice, but choosing well, and choosing well requires an appropriate social context.

Notes 1. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999 [1971]), p. 7. 2. See, e.g., Stuart White, Equality (Malden, MA: Polity Press, 2007), Ch. 4. 3. Amartya Sen, “Equality of What?,” in Inequality Reexamined (Cambridge, MA: Harvard University Press, 1992), pp. 12–30. 4. For an egalitarian theory of this type, defended on grounds of human flourishing, see Christine Sypnowich, Equality Renewed: Justice, Flourishing, and the Egalitarian Ideal (New York: Routledge, 2017), Ch. 8. 5. I follow here John Kekes, “Conservative Theories,” in Handbook of Political Theory, eds. Gerald F. Gaus and Chandran Kukathas (London: Sage Publishing, 2004), p. 136. 6. Aristotle, Nicomachean Ethics, ed. Roger Crisp (Cambridge: Cambridge University Press, 2000), 1130b20–25. 7. John Stuart Mill, “On Liberty,” in On Liberty, Utilitarianism and Other Essays, eds. Mark Philp and Frederick Rosen (Oxford: Oxford World Classics, 2015), p. 8. 8. Aristotle, Nicomachean Ethics, 1142a5–10. 9. Daniel C. Russell, “What Virtue Ethics Can Learn from Utilitarianism,” in The Cambridge Companion to Utilitarianism, eds. Ben Eggleston and Dale E. Miller (Cambridge: Cambridge University Press, 2014), p. 268. 10. Robert Nozick, Anarchy State and Utopia (New York: Basic Books, 1974), pp. 26–35. See also Jan Narveson, The Libertarian Idea (Philadelphia, PA: Temple University Press, 1988), Ch. 5. 11. Eric Mack, “The Natural Right of Property,” Social Philosophy and Policy, Vol. 27, No. 1 (2010), p. 54. 12. Henry Sidgwick, The Methods of Ethics, 7th ed. (Indianapolis, IN: Hackett Publishing, 1981 [1874]), Bk. 1, Ch. 9. 13. Mark LeBar, The Value of Living Well (Oxford: Oxford University Press, 2013), p. 12. 14. See Philippa Foot, “Morality as a System of Hypothetical Imperatives,” in 20th Century Ethical Theory, eds. Steven M. Cahn and Joram G. Haber (Upper Saddle River, NJ: Prentice Hall, 1995), pp. 448–56. 15. LeBar, The Value of Living Well, p. 12. 16. See Mark LeBar,“Virtue Ethics and Deontic Constraints,” Ethics, 119 (2009), pp. 642–71. 17. LeBar, The Value of Living Well, p. 12. 18. See Alasdair MacIntyre, Ethics in the Conflicts of Modernity: An Essay on Desire, Practical Reasoning, and Narrative (Cambridge: Cambridge University Press, 2016), Ch. 1. 19. This is the subject of Chapter 7. 20. Fred Miller Jr. explores a similar idea with respect to rights in Aristotle’s political thought. See Fred Miller Jr, Nature, Justice, and Rights in Aristotle’s Politics (Oxford: Oxford University Press, 1995), pp. 128–40. 21. See Rosalind Hursthouse, “After Hume’s Justice,” Proceedings of the Aristotelian Society, Vol. 91 (1990–1991), pp. 235–6.

126 The Role of Good Institutions in Living Well 22. David Hume, A Treatise of Human Nature, ed. L.A. Selby-Bigge (Oxford: Oxford University Press, 1978 [1739]), Bk. III, Pt. II, Sec. I. 23. Ludwig Wittgenstein, Tractatus Logico-Philosophicus (London: Routledge and Kegan Paul, 1922), §5.62. 24. Jeremy Bentham, “Anarchical Fallacies,” in Nonsense Upon Stilts: Bentham, Burke, and Marx on the Rights of Man, ed. Jeremy Waldron (London: Methuen, 1987 [1843]), pp. 46–76. 25. Hursthouse, “After Hume’s Justice,” p. 234. 26. Hume, A Treatise of Human Nature, Bk. III, Pt. II, Sec. II. 27. Chandran Kukathas, “Justicitis,” in New Perspectives on Distributive Justice: Deep Disagreements, Pluralism, and the Problem of Consensus, eds. Nurdane S¸imsek, Stephen Snyder and Manuel Knoll (Berlin: De Gruyter, 2018), pp. 191–3. 28. Hursthouse, “After Hume’s Justice,” p. 234. 29. Anscombe’s theory of rights is explored in Katharina Nieswandt, “What Is Conventionalism about Rights and Duties?,” Australasian Journal of Philosophy, Vol. 97, No. 1 (2019), pp. 15–28; and Katharina Nieswandt, “Anscombe on the Sources of Normativity,” The Journal of Value Inquiry, Vol. 51 (2017), pp. 141–63. 30. Elizabeth Anscombe, “On the Source of the Authority of the State,” in The Collected Philosophical Papers of G.E.M. Anscombe: Vol. 3. Ethics, Religion, and Politics (Oxford: Blackwell, 1981), p. 145. 31. Ibid., p. 139. Anscombe attributes this idea to Aristotle. See Aristotle, Metaphysics, trans. C.D.C. Reeve (Indianapolis, IN: Hackett Publishing, 2016), 1015a. 32. A similar point is made by John Rawls in articulating what he calls the “practice conception of rules.” See John Rawls, “Two Concepts of Rules,” in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999 [1955]), p. 36. 33. “Moral power,” “liberty-right,” and “claim-right” are from Wesley Hohfeld’s classic analysis in Fundamental Legal Conceptions (New Haven: Yale University Press, 1919). 34. David Schmidtz refers to this as the “bundle theory” of property rights in “Property and Justice,” Social Philosophy and Policy, Vol. 27, No. 1 (January 2010), pp. 79–100. 35. Eric Mack, “The Natural Right of Property,” Social Philosophy and Policy, Vol. 27, No. 1 (2010), pp. 53–78. 36. I owe this point to David Schmidtz. 37. Martha C. Nussbaum, Creating Capabilities: The Human Development Approach (Cambridge, MA: Harvard University Press, 2011), Ch. 1. 38. Nussbaum, Creating Capabilities, pp. 166–70. 39. Martha C. Nussbaum, “Nature, Function and Capability: Aristotle on Political Distribution,” in Marx and Aristotle: Nineteenth-Century German Social Theory and Classical Antiquity (Savage, MD: Rowman & Littlefield, 1992), p. 180. 40. Martha C. Nussbaum, “Perfectionist Liberalism and Political Liberalism,” Philosophy & Public Affairs, Vol. 39, No. 1 (2011), pp. 3–45. 41. Martha C. Nussbaum, “Non-Relative Virtues: An Aristotelian Approach,” Midwest Studies in Philosophy, Vol. 13 (1988), p. 35. 42. Martha C. Nussbaum, “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism,” Political Theory, Vol. 20, No. 2 (May, 1992), p. 216. 43. Martha C. Nussbaum, “Aristotelian Social Democracy,” in Liberalism and the Good, eds. R.B. Douglass, G.M. Mara and H.S. Richardson (London: Routledge, 1990), p. 228.

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44. For a similar critique of Nussbaum’s capabilities approach, see Catherine H.  Zuckert, “Aristotelian Virtue Ethics and Modern Liberal Democracy,” The Review of Metaphysics, Vol. 68 (September 2014), pp. 69–72. 45. Nussbaum, Creating Capabilities, pp. 33–4. 46. Mark LeBar, “Virtue and Politics,” in The Cambridge Companion to Virtue Ethics, ed. Daniel C. Russell (Cambridge: Cambridge University Press, 2013), p. 275. 47. I follow here Douglas Rasmussen and Douglas Den Uyl, Norms of Liberty (University Park, PA: Penn State Press, 2005). See also Douglas Rasmussen and Douglas Den Uyl, The Perfectionist Turn (Edinburgh: Edinburgh University Press, 2016). 48. Rasmussen and Den Uyl, Norms of Liberty, p. 266. 49. Ibid., p. 268. 50. Ibid., p. 276. 51. Ibid., p. 278. 52. Hursthouse, “After Hume’s Justice,” p. 237 (emphasis original). 53. I follow here Gregory Robson, “Justice Theorizing and Local Knowledge,” in Exploring the Political Economy and Social Philosophy of F.A. Hayek, eds. Peter J. Boettke, Virgil Henry Storr, and Jayme S. Lemke (New York: Rowman & Littlefield International, 2018), pp. 35–54. 54. Hursthouse, “After Hume’s Justice,” pp. 244–5. 55. Aristotle, Politics, trans. C.D.C. Reeve (Indianapolis, IN: Hackett Publishing, 1998), 1268a39. 56. See Eric Mack, “The Natural Right of Property,” Social Philosophy and Policy, Vol. 27, No. 1 (2010), p. 54. 57. Fred Miller, Jr distinguishes between natural rights views based on natural justice and natural rights views that claim there are pre-institutional rights. Specifically, he claims that Aristotle has the former concept, but not the latter. See Miller Jr., Nature, Justice, and Rights in Aristotle’s Politics, Ch. 4.

7

The Formative Role of Institutions in Living Well

We saw in the previous chapter that rights-based theories hold that a just society is one in which certain rights are respected and enshrined in a society’s political institutions. Rosalind Hursthouse poses what she calls “a disconcerting question,” for rights-based theories, that is, “[c]an a just society be a wicked one?”1 We can, of course, imagine a society in which everyone’s rights are respected. But it is logically possible that such a society may also be one in which the moral character of its citizens is seriously deficient, a matter which lies beyond the reach of traditional liberal rights. According to eudaimonism, however, because a good society is one in which its citizens live well, which requires virtuous activity, it is impossible for a good society to be a wicked one. A just society is not necessarily a good society, at least if we think of justice narrowly as respect for rights. A good society also needs good citizens. As Hursthouse observes, acknowledging “that a just society can be a wicked one would certainly effect a startling change in much of the current discussion [about justice].”2 Hursthouse’s insight is relevant for thinking about the second role of institutions in living well, what I call the “formative role.” For, living well requires more than institutions that protect certain rights claims. While as I have argued, the exercise of practical wisdom requires political institutions that constrain interpersonal action, the development of practical wisdom depends on formative institutions, such as the family, where we first learn the virtues. And since much of moral education has already occurred once we reach adulthood, it may be argued that the formative institutions are, in fact, more important than political institutions for the distribution of virtuous persons in a society. The formative institutions are especially important for liberal democracy. Self-government, after all, requires citizens who are educated and sufficiently virtuous to make important decisions about political matters, as well as run their own lives. But because the theory of liberalism does not concern itself directly with virtue, it is unclear whether liberal democracies can generate the kind of support they need to remain stable. Indeed, as we saw in Chapter 3, some political theorists argue that the very success of liberal democracy erodes the support it crucially depends

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on.3 According to this view, liberalism has succeeded only because it has benefited from a pre-existing reservoir of civic virtue, social capital, and cultural cohesion that liberalism itself does not generate. Ultimately, then, even under the best circumstances, in which we secure the full schedule of liberal rights, liberal democracy must eventually exhaust itself absent citizens cultivating virtue in the formative institutions of civil society. Ancient philosophers well understood this critique of democracy. Aristotle, for instance, criticizes the extreme democrats of his time as overly concerned with freedom to do what one pleases, and not enough concerned for virtue and respect for law, which, as I argued in Chapter 4, are crucially related.4 Not only does the virtue of justice concern following the law, but law generally, whether formal or informal, aims to inculcate the virtues. This process of inculcation need not be direct, where the law requires specific virtuous actions, or outlaws vice entirely. But the set of legal and social norms, promulgated through social and political institutions, certainly shapes the extent to which members of a society acquire the virtues. Being brought up under the right laws, as Aristotle recognized, makes all the difference in whether a society is virtuous or wicked.5 The foregoing shows the importance of the formative role. A good society depends not just on institutions that constrain interpersonal action, which allows the exercise of practical wisdom, it depends on institutions that reliably produce citizens who are practically wise. These are the institutions usually classified as “civil society,” e.g., the family, schools, businesses, religious or communal organizations, and so on. We become practically wise as members of and participants in these various institutions. Political institutions are necessary, but not sufficient for a good society. We also need civil society to balance the authority of political institutions, whose role is partially to encourage the flourishing of the formative institutions. But this will only happen if persons recognize their responsibilities to maintain the formative institutions and do not depend so much on political institutions to the extent that civil society is extinguished entirely.

The Insufficiency of Rights From its inception in the theories of John Locke, Baron de Montesquieu, Immanuel Kant, and John Stuart Mill, to contemporary defenders such as John Rawls and Robert Nozick, liberalism has been defined by a system of individual rights that enables each person to pursue their own conception of the good, provided they do not infringe on the rights of others to do the same. But while many liberal theorists have maintained that the state should, in some sense, be neutral concerning views of the good, it was generally recognized that the practice of liberalism depends on virtuous citizens. At minimum, responsible self-government requires citizens who are educated, motivated by a sense of justice, and willing to put the public

130 The Role of Good Institutions in Living Well interest above their own private interests. Otherwise, citizens will insist on their rights without acknowledging their concomitant responsibilities to one another, responsibilities that a system of rights presupposes in an institutional framework. Now, however favorable the circumstances of early liberalism, in time, the dynamism of liberalism has slowly stripped away public concern for the virtues in liberal democracies. Because institutions have abandoned their role in cultivating the virtues, morality has become a purely private matter, where fellow citizens engage in moral disputes over rival visions of the world, yet refrain from the pretense of prioritizing one conception of the virtues over another. As Rawls acknowledges, this may be inevitable in a society of free institutions.6 But there is also reason to think that the growth of the political state and its corresponding centralization of power has driven a wedge between the virtues and the institutions in which they develop. As sociologist Robert Nisbet observes, “[t]he state grows on what it gives to the individual as it does on what it takes from competing social relationships—family, labor union, profession, local community, and church.”7 These latter institutions, as I have claimed, are the materials out of which we develop practical wisdom. The weakening of such institutions, then, must come at the cost of opportunities to develop practical wisdom and the virtues generally. Consequently, we have seen a sharp increase in individualism, which emphasizes individual (not communal) conceptions of the good on the one hand, and a decrease in the vitality of nonpolitical institutions, such as the family, on the other hand, such that politics becomes the only legitimate means for enabling citizens to live well. This is the dynamic first recognized by Alexis de Tocqueville in a prophetic statement from Democracy in America: Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in a perpetual state of childhood: it is well content that people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?8 What Tocqueville saw was that freeing individuals from their dependence on nonpolitical institutions had the perverse effect of making them even

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more dependent on the political state and thus more likely to become atomized and prone to what he called a “new despotism.” According to this analysis, once persons are no longer dependent on nonpolitical institutions to fulfll their needs, they must look toward the political state to secure the goods necessary for living well. But in doing so, they are deprived of the opportunity to develop practical wisdom (cf. “the care of thinking and all the trouble of living”), which fnds its home in the nonpolitical domain of family, education, work, and community. While it is possible to grant each person the all-purpose goods necessary for living well, only practical wisdom renders such goods truly good for the agent who exercises it. So, because the virtues depend on the vitality of nonpolitical institutions, a political community that enables its citizens to live well must not neglect the health of civil society, an error that existing liberal democracies have arguably made by an overemphasis on rights and the individual (over communal) pursuit of happiness. After all, rights merely give persons the opportunity to make choices. But rights do not ensure that persons make wise choices (nor should they). Since practical wisdom cannot be commanded, the only way to encourage practical wisdom is to ensure that there is a healthy social context in which persons are likely to make choices constitutive of living well. The institutions that constitute this context offer no guarantees of unfettered choice; they direct and shape our desires in one way or another through their particular embedded obligations and responsibilities. What matters is that persons live in a context within which choices, while not directed, are nevertheless presented against a background of options. This is the sense in which persons form their conceptions of living well by choosing among a set of enduring traditions within a political community.9 A conception of living well grows out of existing traditions, which means that absent strong traditions, opportunities to live well diminish; virtue cannot grow in a social vacuum. In this respect, the relationship between a political community and virtuous citizens is like that of parents to children. For parents do not direct what their children do with their lives, but nonetheless present them with options and the values to weigh such options in making meaningful choices. So too, a political community should not direct how its citizens choose to live. But it should present them with a set of meaningful options and the means of choosing among them, which is the very function of culture. Rights, then, are necessary for persons to live well, but not sufficient. Rights enable persons to exercise virtue. But to exercise virtue, one must first develop it, and this will not happen unless there are healthy social institutions in which persons learn the virtues. This is the formative role of institutions in living well. Institutions form persons into virtuous citizens. And since liberal democracy depends on a virtuous citizenry that liberalism does not itself produce, defenders of liberalism should pay more attention to the institutions of family, education, work, and so on.

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Institutions as Schools of Virtue We develop the virtues, as Aristotle observes, “by first exercising them.”10 And we first exercise the virtues in the context of institutions. If virtue is the practical skill of living, then institutions are schools of virtue. Just as a plant will not grow without nutritious soil, human beings cannot develop the virtues unless they live in the context of healthy institutions.11 While we rightly lament the differences in access to material well-being enjoyed by disparate socioeconomic groups, unequal institutional beginnings, partly because of their impact on virtue, can do more permanent and lasting damage to our prospects for living well.12 If we care about equality of opportunity, then, we must be concerned with the health of social institutions, since this is where we learn to be practically wise. We can see this more closely by examining four characteristic institutions of civil society: (a) the family, (b) educational institutions, (c) the economy and the workplace, and (d) religious or community-based organizations. It is no accident that our oldest narratives about political community begin with the joining of families. The family is perhaps the most important social institution because it is where children are raised, thus preserving a society’s institutions, norms, and culture for the next generation. A society that does not value the family, in some sense, does not value the future. Even Rawls, in his original formulation of the original position, which was later amended in response to his feminist critics, assumed that “heads of families” would be the primary bargainers over principles of justice in the original position.13 For we are primarily members of families and perhaps only later become “individuals” with lives (and families) of our own. The family also performs the role of linking a society to its past through the generations. Without a clear idea of the past—where we have been—it is difficult to form a vision of the future: where we are headed.14 As an institution for raising children, the family is the first place we learn the fundamentals of practical wisdom, that is, knowledge of how to do practical things, what is good, and how to pursue and achieve our ends. The family also teaches other virtues, such as love, self-control, and what the ancients called “household management,” [oeconomia] the root of the discipline we now call economics.15 Love and affection are modeled through parents and given unconditionally to children. Social cooperation also begins in the family, as children are taught social norms and rules that allow them to get along with other children, and ultimately, their adult peers. Self-control regulates this process and prevents one’s desires from dominating others. Finally, a family is, in some sense, a microcosm of an economy, where its members divide labor, work toward a common end, and provide for their mutual needs. As we become adults, we move from primarily occupying a role in a family to occupying a role in the broader society, and this usually takes

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the form of employment in the economic market or prefatory to that, an education. While education has increasingly become a necessary instrument for successful participation in the economic market, i.e., by teaching marketable skills and awarding a credential, true education is about the acquisition of knowledge and perhaps more importantly, character development.16 Yet remarkably our education system, at both the lower and higher tiers, still operates on a roughly nineteenth-century model. By educational institutions, then, we need not think only of elementary schools, high schools, and institutions of higher learning. Certainly, the transmission of knowledge and skills is alive and well on the internet and other media of education. We may worry, however, that the traditional transmission of knowledge coupled with character development has disappeared from our educational institutions. In this respect, we may need to build new educational institutions as much as we need to preserve the well-functioning ones that remain. Practical wisdom is plainly involved in the educational aims of gaining knowledge, learning skills, and building character. Educational institutions also teach us how to communicate effectively, in reading, speech, and writing. This is a crucial virtue in a liberal democracy, given the importance of open debate and discussion. Relatedly, there is the virtue of tolerance that teaches us to thrive among differences of belief and opinion. We learn to be tolerant both by opening ourselves up to the wisdom of the past, and by exposing ourselves to viewpoints that conflict with our own. Finally, the formal structure of education, i.e., the attaining of grades, degrees, and academic achievements, teaches us perseverance, to work toward a goal and to continue amidst setbacks. After education, the next major set of social institutions in the course of a life are economic or work-oriented. Economic markets allow us to cooperate peacefully and productively in the creation of wealth. Wellfunctioning economic systems are extraordinarily good at supplying people with goods and services they need at an affordable price. This is accomplished through the division of labor, specialization, and structures of decentralized decision-making and information dissemination. Employment in an economic market also provides citizens with meaningful work through which to develop their talents and provide for their families. While we need not dismiss Adam Smith and Karl Marx’s darker assessments of work in a market economy, work is an essential part of human nature, and one which markets have utilized for great social benefits, turning private vice into public virtue, to paraphrase Mandeville.17 Practical wisdom, or prudence, is also a major virtue developed in the economic sphere. Indeed, the ultimate failure of planned economies was in no small part due to the impossibility of capturing the knowledge inputs of economic actors exercising their private stores of practical wisdom.18 Work also makes up a significant portion of our self-respect. Rawls, for instance, who notes that self-respect is “perhaps the most important primary good,”

134 The Role of Good Institutions in Living Well observes that “[w]ithout it nothing may seem worth doing, or if some things have value for us, we lack the will to strive for them.”19 But unlike other primary goods (e.g., income and wealth), and like practical wisdom, selfrespect is not something that can be granted to a person. Self-respect must be earned. And an important way to earn self-respect is to develop one’s talents, become industrious, and exploit one’s abilities for productive ends. Despite these benefits, the economic domain is sometimes viewed as low and not worthy of living well in the full sense: in a community with others in pursuit of shared virtuous activity. Thus, many people seek to augment their economic lives with a religious, artistic, or some other communitybased dimension. Such institutions and practices allow us to commit ourselves to something that is bigger than any merely human endeavor. Religions bind groups together through shared beliefs, trust, and solidarity. Religious institutions are also crucial to the development of community and often perform charitable works where political institutions fall short. This sense of community, as I argued in Chapter 5, is crucial for viewing each other as fellow citizens who share and take part in the same society. Religious and community-based institutions transform practical wisdom by changing the way we look at the world. They expand practical reasoning beyond the confines of the self and therefore alter the scope of what it means for a person to live well. This shrinking of the self before the group helps encourage the virtue of humility, which makes us less likely to press our own case at the cost of others. This also makes us more likely to forgive others when they have wronged us, since we recognize the same weakness of virtue in ourselves. Finally, strong communal institutions encourage temperance and self-control in general. For, it is the nature of destructive vices (e.g., alcohol, drugs, pornography, etc.) to grow where ties of community are weak.20 A strong community thus provides reasons and a support network for citizens to avoid antisocial habits. It does not require much reflection on the state of our civil society institutions to conclude that they are in a state of disrepair.21 But what can or should be done about this is less clear. For, unlike matters having to do with the securing of rights, which can be addressed with legislation through the political process, the health of civil society institutions is often outside the direct reach of law and therefore difficult to address with political tools. We can proclaim that citizens have a right to a family, education, job, and belonging in a community. But such calls will come up short so long as the institutional preconditions do not exist. And if the institutional conditions do exist, then, of course, it is quite unnecessary to speak of rights to such things.

Virtue, Habit, and Law To understand the relationship between the virtues, civil society, and political institutions, we need to examine the relationship between virtue, habit,

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and law. As Aristotle makes clear, a virtuous character is formed through habitual practice. The virtues do not arise in us naturally, but we are fit to acquire them “by first exercising them.”22 Just as a novice pianist becomes skilled by practicing the things a master pianist plays, so too a virtuous person develops virtue by imitating and emulating the actions of moral exemplars.23 At first, this process of moral development may proceed following incentives such as pleasure. But over time, through moral reasoning and ethical reflection, the virtuous person acquires the understanding and emotional maturity required to act virtuously as a matter of character. What begins as habitual practice becomes a reflectively formed character trait. Habits are formed in and by institutions. Because practical reasoning always takes place in an institutional context, the choices that we make in our habit-forming actions cannot be divorced from the influence of institutions. Abuse of alcohol, for instance, is much more likely to perpetuate itself in a family with a history of alcoholism.24 Our habits are also formed by institutions in the way that social norms and incentives work together to influence our behavior. For example, anti-smoking norms have slowly worked to change people’s habits through a combination of social attitudes and financial (dis)incentives. More generally, since much of our day-to-day activities are routinized, the extent to which institutions influence our habits and daily activities must be very great. Our habits are also influenced and shaped by laws. As Aristotle puts it, “legislators make the citizens good by habituating them.”25 The effect of law on habits takes at least two forms. In one form, law influences habits by allowing or prohibiting certain kinds of actions and attaching punishments and penalties to noncompliance. This habit-forming mechanism raises the cost of certain behaviors to minimize them. We change people’s habits by altering the incentive structure of their choices. The other form is more indirect. Since as we’ve acknowledged, habits are formed in, and by institutions, because institutions are regulated by laws, habits are also (indirectly) regulated by laws. For instance, arguably the no-fault divorce laws of the 1970s indirectly changed people’s habits related to family formation through a change in the law, even though they did not direct individual behavior.26 Given the important connections between habit, virtue, and law, what should the role of law be in maintaining the social institutions of civil society? According to a liberal attitude toward law going back to John Stuart Mill, civil laws, which propose to restrict the liberty of some must be justified in terms of preventing harm to others.27 Mill’s so-called “harm principle” denies that liberty should be restricted for any other reason, including harm to oneself. Although Mill’s principle may be plausible regarding issues of freedom of speech and expression, when we reflect on the range of civil law in liberal democracies, which criminalizes many so-called “self-regarding” actions,28 Mill’s standard is much too high and overly broad. For, besides criminal law, there are many types of law that

136 The Role of Good Institutions in Living Well are only partially concerned with preventing harm, such as family law, which deals with the family as an important civil society institution. There are also laws that prohibit conduct broadly considered “immoral,” such as bestiality, public indecency, or other offenses to what may be called common decency. As Gerald Dworkin argues, this need not mean that there are not good reasons to refrain from criminalizing certain kinds of immoral activities (e.g., adultery).29 But, contra H.L.A. Hart and others, it does show that it is not prima facie unjustified for law to concern itself with morality.30 As Dworkin argues, “there is no principled line following the contours of the distinction between immoral and harmful conduct such that only grounds referring to the latter may be invoked to justify criminalization.”31 Law—like any institution—is a tool for the prevention of vicious activity. And whether the constraining of particular vices is the proper domain of civil laws, rather than informal social norms, is a matter of prudence and practical judgment, not a priori moral stipulation. Modern attitudes about law are usefully contrasted with Aristotle’s view of the relationship between virtue and law. For Aristotle, since politics is about the good life, and the good life requires a correct upbringing, any well-functioning political society will have laws that govern people’s behavior, specifically rewarding virtuous activity and sanctioning vicious activity.32 There is something to Aristotle’s prescription that is worth heeding, since our good, as we understand it, depends to a large extent on the institutions we take part in and the society in which we are raised. Aristotle’s claim about the relationship between virtue and law appears early in the Nicomachean Ethics in a passage that attempts to clarify its subject matter as “a kind of political science.”33 Ethics and politics are intertwined for Aristotle because both aim at the good. But politics is a higher or more authoritative kind of science “because it lays down which of the sciences there should be in cities, and which each class of person should learn and up to what level.”34 And because politics “also lays down laws about what we should do and refrain from”—and these concern states of character—ethics is subordinate to politics.35 The subordination is not, however, that every ethical matter is ipso facto a political matter, but rather that since ethics is about character and character depends on developing the right habits, the laws that politics deals with play a crucial role in the formation of good character, and therefore ethics. Further illustration of this idea comes later in Book Six of the Nicomachean Ethics in Aristotle’s discussion of practical wisdom. Aristotle thinks of practical wisdom as the virtue that gives one knowledge “about what conduces to living well as a whole.”36 This includes knowledge of what is in one’s own interests (self-interest narrowly understood) “but,” Aristotle notes, “there is much disagreement about it.”37 Some people, it seems, view the politician as a “busybody,” while the practically wise person is thought to mind his own affairs.38 In response, Aristotle claims that “nevertheless, one’s own good will presumably not exist without the

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management of a household and without a political system.”39 This confirms our view that practical wisdom cannot be exercised independently from the political society in which it must first develop. Aristotle adds for good measure that this is why young people do not become practically wise: they don’t have the kind of experience that is acquired by living in a political society under a set of laws that enable them to judge well in ethical and political matters. Aristotle’s full description of the formative role of institutions in virtue appears appropriately enough in the transitory discussion from the Nicomachean Ethics to the Politics. In support of his general claim that ethics is about action, not merely knowledge, Aristotle cites Theognis’s remark that “[i]f arguments were sufficient by themselves to make people good, then they would have won many great rewards, and justly so.”40 Considering then how we are to become good, Aristotle compares the virtuous person to the flourishing of plants, which require nourishing soil to develop. Just as a plant turns toward the sun for nourishment, our development as human beings involves feeling pleasure and pain at the appropriate objects. And since neither young people nor adults are naturally fitted to do so, Aristotle claims that “their upbringing [young people] and pursuits should be regulated by laws,” and also “[for adults] generally for the whole of life.”41 Lastly, Aristotle thinks that laws are uniquely suited for this role because they “have compulsive power” proceeding “from a kind of practical wisdom and from intellect.”42 Aristotle’s focus on law in the development of virtue stems from his skepticism that persuasion alone is strong enough to make people good. The development of virtuous activity begins with habitual practice. Thus, to be amenable to argument and teaching, persons must be habituated to feel pleasure and pain at the appropriate objects.43 But those without the right upbringing respond only to punishment, setting the stage for a comprehensive system of laws even for “when they are grown up” and “generally for the whole of life.”44 This undoubtedly strikes a modern reader as heavy-handed. Aristotle’s pessimism about persuasion is tempered by a perhaps unwarranted optimism about the overall effectiveness of civil law in making us good and the capacity of persons to acquire knowledge of this species of legislation. But what the modern experience has shown is not that law per se is an inappropriate tool for encouraging virtue, only that it is a tool of limited use. The foregoing suggests that whether specific laws are reasonable to deal with the problem of encouraging virtue in the formative institutions of civil society cannot be answered in the abstract. Since legislation is a function of practical wisdom (hence jurisprudence), and practical wisdom depends on the particulars and “rests with perception,” we must conclude only that legislation is a tool available to the practically wise person who is trying to enable and encourage virtue in her political community.45 It would be practically unwise, however, to pretend that laws can fix or

138 The Role of Good Institutions in Living Well somehow substitute for the conscious and rational choice of persons to practice the virtues. Instead, law maintains a framework for the health of civil society institutions, which themselves depend on informal social norms to encourage virtuous activity.

The Formative Role: Balancing Institutional Authorities Virtue cannot be commanded. But so too, virtue will not just grow anywhere. Virtue needs the right environment to properly develop, and an essential part of this environment is a well-functioning civil society. The institutions of civil society are what Nisbet calls “intermediate authorities” because they are the institutions that exist between the political state and the individual.46 These largely autonomous institutions—families, schools, businesses, churches, etc.—are what I have called schools of virtue. They play a formative role in enabling members of a political community to live well. But as we’ve seen, this does not eliminate entirely the role of political institutions, and especially law, in creating the conditions for the flourishing of civil society. So, we must now say something about the nature of this role. Defenders of autonomy often emphasize the importance of releasing individuals from the burdens of their oppressive traditions and institutional affiliations so that they might become capable of making genuinely free choices.47 Indeed, to be “autonomous” is to give laws to oneself, suggesting a fundamental independence from social and political forces. The good of autonomy consists in making one’s own choices, not in the quality of the choice per se. It would be quite possible, then, for a person to be autonomous in any social context, provided one’s mind had not been compromised or otherwise improperly influenced. According to this view, genuine endorsement, having rationally reflected on a given course of action, is the only condition for rendering a choice good. But one problem with autonomy, as I have argued, is that it’s possible to make bad choices autonomously.48 No amount of rational reflection and genuine endorsement will make my decision to become a drug dealer good for me. We can be mistaken about what is good for us in ways that escape autonomous choice. What is good for us is a function of practical wisdom, and practical wisdom depends on our capacity for self-directed choice. And once this has been recognized, it is obvious that practical wisdom cannot be exercised in just any context because practical wisdom only develops in certain contexts. One becomes practically wise, not by escaping the burdens of social and political forces, but by incorporating the obligations and duties of the social and political spheres into one’s efforts to become practically wise. As Alasdair MacIntyre observes, “[w]e become independent practical reasoners through participation in a set of relationships to certain particular others who are able to give us what we need.”49 The practically wise person accepts the fact of social embeddedness and pursues the virtues from the embedded perspective.

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Unlike autonomy, then, which implies a certain distance and independence from the influence of social groups, practical wisdom is best developed within social groups. It is by taking on (and embracing) membership in various social groups that one has an opportunity to develop practical wisdom. The reason for this is that, like all skills, virtue requires challenges and obstacles for its proper development. Such challenges and obstacles are various, but the basics are those presented by the social institutions of family, education, work, and community. It is by taking on roles in such institutions that a person becomes practically wise, and therefore, as I have argued, in the absence of strong institutions, it is correspondingly difficult for persons to become virtuous and live well. If practical wisdom is best developed in social groups, then the question of the role of political institutions in fostering the virtues becomes how to best maintain the existence of such groups. The existence of social groups, Burke’s “little platoons,” depends firstly on the distribution of power in a political community.50 At the extreme, for instance, totalitarianism just is the abolition (by force) of all social institutions that are smaller than the political state. And on the other side of the extreme, anarchism is the abolition of all social authorities larger than the individual. Both extremes are destructive of the social institutions of civil society and thus must immediately extinguish opportunities for virtue. Our liberal democratic tradition, alternatively, has allowed virtue to thrive—to the extent that it has—because it has maintained the authority and health of civil society institutions. Because democracies vest power in the people, and so long as the people see themselves primarily as members of social groups and social institutions, by empowering the people, democracies empower the social institutions of family, education, work, and community. But this assumes that the people continue to identify themselves with such institutions and do not become prone to the Tocquevillian-style “soft despotism” that results in atomism. There is, then, a dual responsibility between the agents of the political state and its citizens to maintain civil society institutions in the face of the unintended, but ever-present, sterilizing force of democracy. What, then, should political institutions do to maintain the civil society institutions? Since one of the biggest threats to the health of civil society institutions is the takeover of their functions by the political state, political institutions should refrain from usurping the essential functions of the family, schools, work, and community institutions. There must be some principle of restraint. Of a proposed public policy, for instance, we should ask whether it will weaken or render unnecessary an institution of civil society. Due to the tendency for the powers of the political state to expand, the principle of restraint will be infrequently heeded in practice. And in this sense, because of the importance of civil society in the development of virtue, the expansion of the political state seems to occur in conjunction with a corresponding decrease in virtue.

140 The Role of Good Institutions in Living Well Nisbet describes this relationship between the political state and civil society institutions as “the real reconciliation of the demands of order and the demands of freedom.”51 Political authority guarantees the conditions of order on which all human association depends. Freedom, meanwhile, depends on the associations smaller than the political state in which citizens are presented with real alternatives of how to live well but from which they can enter and exit. “It is in these terms,” Nisbet comments, “that the role of political government becomes clear in the democracies”52: [1] Not to sterilize the normal authorities of associations, as does the total State through a preemption of function, a deprivation of authority, and a monopolization of allegiance, but [2] to reinforce these associations, to provide, administratively, a means whereby the normal competition of group differences is held within bounds and [3] an environment of law within which no single authority, religious or economic, shall attain a repressive and monopolistic influence.53 We see, in this passage, three distinct aspects of the formative role of institutions. The frst is to refrain from overtaking the function and authority of the civil society institutions. In this way, political institutions should decentralize power, so that civil society institutions are allowed to serve their peculiar functions. This principle of subsidiarity ensures that no institution grows so powerful as to overtake the function(s) of the others. The second is to reinforce civil society institutions by issuing a set of rights that demarcates the boundaries between different forms of association and social organization, of which the smallest is the individual. The right to freedom of association, in fact, is fundamentally a right to form associations and institutions that are smaller than the political state. Lastly, since rights ultimately depend on law, and the development of virtue on good laws, political institutions must maintain a framework of law that governs and facilitates the legal presence of important social institutions such as the family, through the relevant bodies of law. This also applies to educational institutions through legal and political support for public education, market institutions through economic rules and regulations, and community organizations through tax incentives, and so on. The ultimate aim of the formative role is to balance institutional authorities. Just as the American system of government posits a balance of power between the legislative, judicial, and executive branches, so that a single power does not dominate, a good society maintains a balance of competing institutional authorities, so that no single institution dominates and thereby undermines opportunities for living well. But by recognizing that there are internal principles of natural growth and decay that govern institutional expansion and decline, the practically wise person acknowledges the chimera of ideal equilibrium. A good society is a living thing

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and must be kept alive against the overwhelming odds of its existence. The final line of defense for civil society institutions, then, must come from its members, who are responsible for preserving civil society for future generations.

The Formative Role: Responsibility for Civil Society Unlike political institutions, which can be maintained with power long after losing the natural allegiance of citizens, the health of civil society institutions ultimately depends on the felt allegiance of their members. Social institutions cannot be artificially propped up once citizens cease to recognize their important functions and become indifferent to their continued existence. When this happens, they effectively become “zombie institutions.” Political support for the family, for instance, will fail unless individual citizens view the family as an important part of their lives. Even education, which sometimes enjoys strong political support, will not function properly unless those who consume the good treat it as more than a means to an end. Participation in good institutions must be enjoyed as a distinct kind of shared activity that has value for its own sake, that is, as an immediate good.54 Otherwise, citizens will view their social institutions as replaceable by whatever expedient public policy is available. At the political level, there are norms of citizenship that guide participants in political institutions toward a shared good. Citizens should be educated, interact civilly with fellow citizens, and act when necessary including, but not limited to, voting in elections. In a similar way, we might conceive of corresponding responsibilities of good citizenship in institutions without which civil society would cease to function properly. In this way, each civil society institution requires distinctive role-duties that are imposed on members in virtue of participating in the relevant institution. Taken together, the responsibilities of citizenship and social membership generate a distinctive set of civic virtues, i.e., virtues necessary for membership in a well-functioning political community. Broader than so-called “political” virtues, these civic virtues arise out of membership and participation in the major civil society institutions: family, education, work, and community. The responsibilities of family begin with children’s relationship toward their parents or primary caregivers. The virtue of performing well one’s responsibilities to family is what Confucians call “filial piety” and the Romans called pietas.55 This virtue recognizes that social norms of authority and respect are first developed in the relationship of child to parent and subsequently expand into the broader society, including one’s relation to the political state. Parents also have responsibilities toward one another, to care for one another, and provide for any children. These relations are often ignored (or assumed) by political theorists.56 But without them, it is difficult to imagine a properly functioning society, as it is

142 The Role of Good Institutions in Living Well responsibility for the future of others that solidifies a political community as a joint venture for living well rather than a merely private association for the satisfaction of the present generation’s desires. Educational institutions prescribe responsibilities primarily through the teacher-student relationship. A teacher has a responsibility for the student’s education, along with the responsibilities that maintain the school, college, or university. A student has a responsibility for her own part in learning, as well as toward the teacher and other authorities in the institution. Education encourages intellectual virtues such as intelligence, knowledge, in addition to technical skills. But it also encourages virtues such as tolerance, openmindedness, and curiosity. We should also acknowledge the importance of self-education and private learning, which, with the digital revolution in access to information, are more widely available than ever. Concomitantly, there is much need for intellectual responsibility, so that misinformation and pseudoscience does not corrupt the minds of the public. Responsibility at work is usually incurred by the voluntary undertaking of employment, or the responsibilities incurred by leading a business or organization. But responsibility in the market realm can be more broadly described as the responsibility each person has to make the best of his or her talents and abilities, to the extent possible and desirable, given differences in circumstances and abilities. Although ancient philosophers like Aristotle looked down on labor, work can be both meaningful and productive of genuine virtues such as industriousness, perseverance, and creativity.57 While few persons are lucky enough to find employment in something they enjoy for its own sake, a market economy and an employment market are important venues for responsibility, dignity, and industriousness. Given the principle of subsidiarity discussed earlier, the most important responsibilities of the civil society institutions lie in the flourishing of community organizations. These may be churches, common interest groups, sports leagues, social clubs, and so on. Because they operate at the local level, which places them in a superior epistemic position, they can usually make the greatest difference in the lives of the political community’s members. Take, for example, the responsibilities of fellow neighbors. Although neighbors do not—strictly speaking—voluntarily live together, we nevertheless recognize that neighbors have special responsibilities toward one another in virtue of their common interests and proximate location. There is, then, a virtue of neighborliness, which may be extended to the broader political community as a model of good citizenship. These responsibilities of social membership—beyond their role in forming virtuous citizens—also perform an important role in the formation of a conception of living well. Rights, it may be said, coordinate joint action through a set of rules that allow persons to pursue their own projects. In this sense, a society that secures certain rights grants its citizens liberty to pursue their own good in their own way. However,

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without commonly recognized responsibilities, it is difficult to imagine citizens acquiring the knowledge of possible alternatives necessary to form a conception of living well in the first place. For, genuine choice requires genuine options. And without a set of valuable options, which do not arise ex nihilo in individuals themselves, there is no possibility of genuine choice. Therefore, the responsibilities of social membership are also an important source of meaning and direction, without which persons could not live well.

Conclusion We can now see why the answer to Hursthouse’s “disconcerting question” to rights-based theorists, viz. “[c]an a just society be a wicked one?” must be “no.” A good (or just) society cannot be a wicked society because a good society is one in which its members live well, and they cannot live well— cannot exercise the virtues—unless the institutions of civil society flourish. Rights are insufficient for living well. Virtuous activity requires (a) selfdirection, which is (b) protected by institutionally defined rights, but also (c) developed in an appropriate institutional context. Political institutions, although they sometimes exist in tension with civil society institutions, must nevertheless ensure that they flourish by (i) devolving power, (ii) specifying and maintaining rights claims, and (iii) upholding a framework of law. This conclusion strengthens our recurring theme that theorizing about justice should not be confined to what Rawls called “the basic structure of society.”58 Not only are virtuous persons necessary for a good society, but a society of virtuous persons itself depends on the health of civil society institutions like the family. It would be desirable, therefore, for political philosophers to refocus on these institutions as sites of justice, not in the feminist sense of applying political principles directly to the family, but as the places where citizens develop their sense of justice, in conjunction with a view of the good life, and in relation to both the political state and civil society. A plea to revitalize civil society can seem quaint.59 It is also difficult to imagine a way forward in light of the limitations on politics to fill the void left by rootless citizens, who increasingly do not view themselves primarily as members of social groups, but as autonomous individuals. But the simple recognition of the formative role of institutions in the development of virtue might change our habits of thought in a way that eventually sparks a change in our habits of action. For, ultimately, virtuous activity is a “habit of the heart,” which depends on thought, feeling, and action for its ultimate realization in a political community.60

Notes 1. Rosalind Hursthouse, “After Hume’s Justice,” Proceedings of the Aristotelian Society, Vol. 91 (1990–1991), p. 243 (emphasis added).

144 The Role of Good Institutions in Living Well 2. Ibid., p. 244. 3. Patrick Deneen, Why Liberalism Failed (New Haven, CT: Yale University Press, 2018), p. 3. 4. Aristotle, Politics, trans. C.D.C. Reeve (Indianapolis, IN: Hackett Publishing, 1998), 1310a35. 5. Aristotle, Nicomachean Ethics, ed. Roger Crisp (Cambridge: Cambridge University Press, 2000), 1103b5–25. 6. John Rawls, “The Idea of an Overlapping Consensus,” in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999 [1987]), p. 425 (emphasis added). 7. Robert Nisbet, The Quest for Community (Wilmington, DE: Intercollegiate Studies Institute, 2014 [1953]), p. 237. 8. Alexis de Tocqueville, Democracy in America, ed. Eduardo Nolla, trans. James T. Schleifer (Indianapolis, IN: Liberty Fund, 2010 [1840]), Vol. II, Section 4, Ch. 6 (emphasis added). 9. John Kekes, “Conservative Theories,” in Handbook of Political Theory, ed. Gerald F. Gaus and Chandran Kukathas (London: Sage Publishing, 2004), pp. 136–7. 10. Aristotle, Nicomachean Ethics, 1103a30 (translation slightly modified). 11. Aristotle uses the metaphor of nutritious soil at Nicomachean Ethics, 1179b25. 12. For instance, Ron Haskins and Isabel V. Sawhill argue that (i) graduating high school (education), (ii) having a full-time job (work), and (iii) waiting until after 21 to get married and not having children out of wedlock (family) greatly reduce one’s likelihood of living in poverty, all of which depend on strong social institutions. See Haskins and Sawhill, Creating an Opportunity Society (Washington, DC: Brookings Institution Press, 2009). 13. John Rawls, A Theory of Justice, Original ed. (Cambridge, MA: Harvard University Press, 1971), p.  128. The most well-known critique of Rawls’s view of the family is Susan Moller Okin, Justice, Gender, and the Family (New York: Basic Books, 1989), Ch. 5. 14. Our dysfunctional relationship to the past and future is discussed in Christopher Lasch’s classic The Culture of Narcissism: American Life in an Age of Diminishing Expectations (New York: Norton and Company, 1979), Chs. 7 and 9. 15. See Xenophon, “The Estate-Manager,” in Conversations of Socrates, ed. Robin Waterfield (London: Penguin Classics, 1990), pp. 289–359. 16. Robert Coles, “The Disparity Between Intellect and Character,” The Chronicle of Higher Education, Vol. 42, No. 4 (1995). 17. See Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Indianapolis, IN: Liberty Fund, 1982 [1776]), Bk. 5, Ch. 1; and Karl Marx, Economic and Philosophic Manuscripts of 1844, in The Marx-Engels Reader, 2nd ed., ed. Robert C. Taylor (New York: Norton and Company, 1978), pp.  70–81; Bernard Mandeville, The Fable of the Bees: Or Private Vices, Publick Benefits, Vol. 1 (Indianapolis, IN: Liberty Fund 1988 [1714]). See also Albert O. Hirschman, The Passions and the Interests: Political Arguments for Capitalism Before Its Triumph (Princeton, NJ: Princeton University Press, 1978), Part I. 18. F.A. Hayek, “The Use of Knowledge in Society,” American Economic Review, Vol. 35, No. 4 (1945), pp. 519–30. 19. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999 [1971]), p. 386. 20. See e.g., George M. Hunt and N.H. Azrin, “A Community-Reinforcement Approach to Alcoholism,” Behavior Research and Therapy, Vol. 11, No. 1 (February 1973), pp. 91–104.

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21. See Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon & Schuster, 2000). 22. Aristotle, Nicomachean Ethics, 1103a30 (translation slightly modified). 23. Julia Annas, Intelligent Virtue (Oxford: Oxford University Press, 2011), Ch. 3. 24. Deborah A. Dawson, Thomas C. Harford and Bridget F. Grant, “Family History as a Predictor of Alcohol Dependence,” Alcoholism: Clinical & Experimental Research, Vol. 16, No. 3 (June 1992), pp. 572–5. 25. Aristotle, Nicomachean Ethics, 1103b5. 26. Lynn D. Wardle, “No-Fault Divorce and the Divorce Conundrum,” BYU Law Review, Vol. 79, No. 1 (1991), pp. 79–142. 27. John Stuart Mill, “On Liberty,” in On Liberty, Utilitarianism and Other Essays, eds. Mark Philp and Frederick Rosen (Oxford: Oxford World Classics, 2015), p. 13. 28. For example, cannibalism, consensual incest, and other acts Jonathan Haidt calls “harmless taboo violations.” See Jonathan Haidt, The Righteous Mind: Why Good People are Divided by Politics and Religion (New York: Vintage Books, 2012), pp. 44–7, 81. 29. Gerald Dworkin, “Devlin Was Right: Law and the Enforcement of Morality,” William & Mary Law Review, Vol. 40, No. 3 (1999), pp. 927–46. 30. See H.L.A. Hart, Law, Liberty, and Morality (Palo Alto, CA: Stanford University Press, 1963), Ch. 1. 31. Dworkin, “Devlin Was Right: Law and the Enforcement of Morality,” p. 928. 32. Aristotle, Nicomachean Ethics, 1179b–1181b. 33. Aristotle, Nicomachean Ethics, 1094b10. 34. Ibid., 1094b5. 35. Ibid. 36. Ibid., 1140a25. 37. Ibid., 1142a. 38. Ibid. 39. Ibid., 1142a10 (emphasis added). 40. Ibid., 1179b5. 41. Ibid., 1180a15. 42. Ibid., 1180a20. 43. Ibid., 1104b10. 44. Ibid., 1180a. 45. Aristotle’s thought that moral judgments “rest with perception” is explored by Nancy Sherman in The Fabric of Character (Oxford: Clarendon Press, 1989), Ch. 2. See also Martha Nussbaum, “The Discernment of Perception: An Aristotelian Conception of Private and Public Rationality,” in Love’s Knowledge (Oxford: Oxford University Press, 1990), pp. 54–82. 46. Nisbet, The Quest for Community, p. 244. 47. Sometimes, of course, the point is reasonable and well-taken. See Martha C. Nussbaum, “Adaptive Preferences and Women’s Options,” Economics and Philosophy, Vol. 67 (2001), pp. 67–88. 48. See Chapter 6. 49. Alasdair MacIntyre, Dependent Rational Animals: Why Human Beings Need the Virtues (Peru, IL: Open Court Publishing, 1999), p. 99. 50. Edmund Burke, Reflections on the Revolution in France (Indianapolis, IN: Liberty Fund, 1999 [1790]), p. 136. 51. Nisbet, The Quest for Community, pp. 248–9. 52. Ibid., p. 249. 53. Ibid. 54. See Chapter 5.

146 The Role of Good Institutions in Living Well 55. Philip J. Ivanhoe, “Virtue Ethics and the Chinese Confucian Tradition,” in The Cambridge Companion to Virtue Ethics, ed. Daniel C. Russell (Cambridge: Cambridge University Press, 2013), p. 62. 56. See Yoram Hazony, The Virtue of Nationalism (New York: Basic Books, 2018), pp. 29–37. 57. Aristotle, Politics, 1278a2–12, 1328b32–41. 58. Rawls, A Theory of Justice, p. 6. 59. For a powerful plea to revitalize civil society in the context of the recent political situation in the United States, see Yuval Levin, The Fractured Republic (New York: Basic Books, 2016), Ch. 5–7. 60. Robert N. Bellah, Richard Madsen, William M. Sullivan, Ann Swidler and Steven M. Tipon, Habits of the Heart: Individualism and Commitment in American Life (Berkeley, CA: University of California Press, 1985).

8

Conclusion

I began this book by reflecting on the fact that our liberal democratic society seems to lack a shared narrative, that is, a story about who we are, where we came from, and where we are going. To this extent, I observed, we also lack a shared good because the good is the telos of practical reasoning, and the human good is the purpose of the political community. We have also seen that political philosophers, for the most part, have not tried to rescue this sense of a shared good. Instead, they have tried to come to grips with deep disagreement about the good life by constructing theories of justice that are political, in the sense that they refrain from making ethical pronouncements about what kinds of lives are worth living. This sharp division between ethics and politics, I have argued, is a mistake. A good society ultimately depends on the goodness of its citizens, and good citizens are virtuous citizens, who uphold the laws and serve the common good. We also expect the institutions of a good society to contribute in some appreciable way to the good lives of its citizens. In this sense, a society is much more than “a cooperative venture for mutual advantage,”1 as if any group of individuals could come together out of mutually recognized self-interest to bargain over the benefits and burdens of living together. A society is a joint enterprise for the sake of living well together. Joint membership requires shared activity, and mutually recognized obligations and duties that contribute toward the pursuit of a shared good. To rescue the idea of a shared good, we had to start at the beginning, with an account of political authority and its relationship to virtue. Do political states have a right to command virtuous persons? And do virtuous persons have a corresponding obligation to obey the laws of a political state? A virtuous citizen’s obligation toward the state, I argued, is located in the nature of virtuous activity itself. For the virtues presuppose an institutional context that coordinates action among fellow citizens in such a way that virtuous agency is possible. But coordinated action itself is not possible without the mutual recognition of political authority, which hierarchically orders the obligations and duties that constitute membership in a political community. Therefore, to ask why a virtuous

148 The Role of Good Institutions in Living Well person should obey the laws of a political state is really to ask why one ought to pursue virtue in the first place. As T.H. Green puts it: To ask why I am to submit to the power of the state, is to ask why I am to allow my life to be regulated by that complex of institutions without which I literally should not have a life to call my own, nor should be able to ask for a justification of what I am called upon to do.2 But is the idea of a shared good compatible with the pluralism characteristic of liberal democratic societies? In fact, as I have argued, a shared good is not just compatible with pluralism, but a necessary precondition for reasonable pluralism. This is because reasonable pluralism depends on shared membership in a political community, out of which we can identify a pre-existing set of norms and obligations that shape the available views of the good. A shared good is neither a thick conception of the good, defended on philosophical grounds, nor a thin conception, with a merely formal structure. Although the exercise of practical wisdom within one’s socially embedded circumstances is compatible with the range of pluralistic lives in a liberal democratic society, thick conceptions of the good must develop out of the shared beliefs, traditions, and practices of the political community. These are the sources of our shared good. How does the idea of a shared good reveal the relationship between the virtues of character and the virtues of institutions? What role do virtuous persons have in good institutions? And contrariwise, what role do good institutions have in enabling lives of virtue? The just person, I have argued, is characterized by the disposition to uphold and follow the legal and social norms of the political community, while working for their reform, when necessary and expedient, in accordance with practical wisdom. Just persons are necessary for good institutions because institutions depend on the distribution of lawfulness in a society, such that informal social norms and formal legal norms function properly. I also argued that a virtuous person is motivated to promote a sense of political friendship, which consists in the shared social condition of belonging to the same political community. This shared social condition is also the basis for the common good to the extent that without it, the political community deteriorates. Finally, we have seen that good institutions support virtuous persons in two ways. First, institutions, by imposing a set of obligations and duties on its members, constrain individual action such that practical wisdom can be exercised by each person in coordination with others. Good institutions are those that perform this function well, and rights are defined by the claims articulated in, and defended by, such institutions. But because practical wisdom must first be developed, and this development takes place in an institutional context, rights are not sufficient to enable practical wisdom. Instead, practical wisdom depends on a second

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role for institutions: the formative role. This role is played by the healthy complex of civil society institutions, such as the family, schools, work, and religious or community-based institutions. This is the soil out of which virtue may grow. Although I began by observing our lack of a shared narrative, such a narrative can be reanimated by the experience of a shared threat. In the months following 9/11, for instance, Americans experienced the resurgence of a joint commitment to a shared narrative. These flashbulb moments have a way of reminding us who we are, where we came from, and the importance of going into the future together, as one people. And so, today, as we face the future together as one people, it remains an open question whether the spirit of a shared good may be reanimated in response to the threat posed by the COVID-19 pandemic, or any number of other threats (external or internal) that may follow in its wake. But while we wait and hope for that to happen, it is worthwhile to reflect on the theoretical and practical applications of what has been said. How can virtue politics inform debates in political philosophy and liberal democratic politics?

Debates in Political Philosophy An important recent debate in political philosophy is the relationship between ideal and nonideal theory. That debate, like so many others in political philosophy, was started by John Rawls, who stipulated that, for the purposes of theorizing about justice, “[e]veryone is presumed to act justly and to do his part in upholding just institutions.”3 This partly defines ideal theory, where we “ask what a perfectly just society would be like,” whereas nonideal theory “studies the principles that govern how we are to deal with injustice.”4 Although Rawls admitted that the problems of nonideal theory are “the pressing and urgent matters. . . . The reason for beginning with ideal theory is that it provides . . . the only basis for the systematic grasp of these more pressing problems.”5 The ensuing debate has unfolded in myriad ways. Philosophers such as David Estlund, for instance, argue that theories of justice cannot be faulted for failing to satisfy the constraint human nature places on whether ideals of justice can be realized.6 If human beings fail to live up to justice, that is a problem with individual human beings, not theories of justice. This consideration appears immediately appealing, since we don't want ideals of justice to be held back by contested claims about human nature, which remains imperfect. We want our ideals of justice to be worth aspiring to, even if distantly. But we also we want theories of justice to have traction in the world and respond to the kinds of problems real societies face. While theories of justice are ideals, they should still be practical and action-guiding. Political philosophy, after all, is a branch of practical reasoning. Thus, David

150 The Role of Good Institutions in Living Well Miller argues that theorizing about justice is bound up with the consideration of contingent facts, including facts about human motivation, that place limits on what justice can be before we even begin theorizing.7 Here the danger seems to be that we will take too much for granted and tailor principles of justice that are too beholden to current arrangements and sentiments, which we might want to criticize on justice grounds. The result is potentially ending up with something less than justice. As we have seen, a prerequisite for ideals of justice is that we have a stable social order, which depends on shared institutions that embody social knowledge about how to live together. Political authority, which maintains political order, is necessary for virtuous activity because it coordinates social cooperation for the sake of living well. For this reason, we cannot forsake the principles that underlie an existing stable social order when we go on to theorize about what a just society would look like, or better—what would make the existing society more just. There is no well-ordered society without a functioning social order. But if what I’ve argued is right, we should not stop here in theorizing about justice, as both a virtue of institutions and character. Mere social order is compatible with injustice because justice is a solution to a problem that is always changing; institutions will never be fully just, but that is not a reason to forsake what we have. Contrary to Rawls, then, it is false that “laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.”8 Reform is necessary, but it requires practically wise citizens—not ideal theories—to know when and how to reform institutions in the direction of justice. My view goes beyond—but does not ignore order—because it locates the function of a political community in enabling persons to live well. A society is not functioning well, is not just, therefore, unless it is performing this task well. But at the same time, it cannot perform this task well without securing and maintaining a stable social order. A fully just society requires both good institutions and good citizens. That is an ideal worth aspiring to, but one that takes seriously the human condition and the problems to which justice is a solution. It does not require that we prioritize the ideal over nonideal. The objective of theorizing comes from the kinds of problems we try to solve, namely, the problem of living well together in a society. But there remain ideals of virtue to guide and support the direction of good institutions. One of the problems justice needs to solve, for example, is the problem of uniting a diverse and pluralistic political order, where competing conceptions of the virtues may threaten a society’s stability. Political liberals have tried to solve this problem by constructing theories that model what it would be like for there to be an overlapping consensus, or equilibrium, on a set of moral principles from a diverse input of comprehensive doctrines. Part of the attempt to find an overlapping consensus is the exclusion of comprehensive doctrines from the public sphere of reasoning. Justice, on

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this view, is more like a compromise to live together on terms of mutual tolerance than an ideal that we strive for together. The account I have developed takes a different route. Instead of attempting to find a conception of justice that a diverse set of persons can accept and live with, I have tried to show how the possibility of a diverse set of persons in a political society is dependent on some shared moral or ethical framework. The conceptions of the good that we develop for ourselves grow out of our allegiance to a set of shared institutions that may give rise to disagreement and difference in how we live, but cannot upset the fact that we still live together, as one political community. I am, therefore, not optimistic that a liberal order can be sustained on the basis of an overlapping consensus of diverse ethical views. A liberal order may have the veneer of neutrality, but its institutions are grounded in a deep moral culture that ultimately relies on our affections, not our reasons. Thus, I do not believe we can separate ethics and politics in ways that liberal theorists have sought. This issue is evident in the debate between Rawls and G.A. Cohen on where principles of justice apply: To the basic structure institutions only? Or also in our personal lives? Rawls, as a traditional liberal theorist, wanted to separate ethics from politics, so that a just basic structure could leave persons free to pursue their individual conceptions of the good, whereas Cohen, as a socialist, claimed with the feminists that “the personal is political,” so that principles of justice are as equally applicable to your personal decisions as to your society’s political institutions.9 Cohen also argued that Rawls mistook rules of regulation, which are fact-sensitive (or “nonideal”), for principles of justice, which are factinsensitive (or “ideal”), and that, in turn, this led him to compromise his egalitarianism by allowing individuals to ignore justice in their personal lives.10 As we have seen, Cohen is right that Rawls wrongly restricts the virtue of justice to institutions, for a good society depends on just persons as well as just institutions. But if Cohen had clearly distinguished just institutions from just persons, he would not have had to implausibly insist that institutional justice requires that we ignore important facts about human nature and motivation. This is because institutional justice is a matter of the problems posed by institutions, namely, the problem of how to live well together, given partial compliance and imperfect human motivation. It remained, however, for Cohen to claim that justice as a character virtue requires full compliance and better than normal motivation, as part of a good society in the full sense. I close this section by noting three limitations of my view. First, I have not answered in any systematic way what we need in order to live well besides a well-functioning institutional framework and sufficiently virtuous citizens. There are further questions about politics and human flourishing addressed by other theories such as Martha Nussbaum’s capabilities approach that have not directly concerned me. Ultimately, I

152 The Role of Good Institutions in Living Well believe these questions about what people need from their political institutions to live well cannot be disentangled from questions about living well itself, which must take place in existing political communities and get worked out through the political process. I am for this reason skeptical of theories of distributive justice such as Nussbaum’s that exhort us to satisfy a list of basic needs or universal human rights without first considering the particulars of people and place. It remains, however, to think more carefully about distributive justice in terms of the approach I have developed. At minimum, a more responsible debate about distributive justice would recognize that institutions cannot provide persons with everything they need to live well, and that sometimes institutions can be detrimental and counterproductive to living well. Likewise, even in a well-functioning institutional structure, persons may fail to live well because of their own deficiencies. Second, I have avoided explicitly grounding my view in any kind of metaphysical doctrine or metaethical view. That grounding of course would probably require another work of this length. But I do think it is a question worth considering: Can a sound political order be sustained without a coherent metaphysical grounding? Founding myths, religious belief, and comprehensive worldviews provide support for institutions that is expedient to ignore, but probably essential to the long-run success of a well-functioning political community. For the things that hold a society together and enable it to thrive ultimately lie out of reach of the rational grip of philosophical theorizing. Lastly, the view I have defended is intended to apply to a domestic political society rather than to the international world order. The reason for this is primarily because the fact of social embeddedness requires that we think first about what obligations persons have as members of a particular political community. There is, of course, the possibility of extending my account to consider persons as members, in some sense, of the international political community. But I do think this is a difficult proposal (a) because it is unclear what those institutions are and (b) psychologically speaking it is difficult for persons to identify with institutions on that scale. A vision of the international order, therefore, cannot be anything more than another ideal at this point, something worth dreaming about, but not something with which to guide action here and now.

Liberal Democratic Politics Like any form of intellectual activity, political theories inevitably reflect the historical period in which they are conceived. While the point may be obvious, it is more commonly applied to the political philosophers of history than contemporary philosophers or philosophers of the recent past. Katrina Forrester, for instance, has shown that the reign of liberal egalitarianism in mainstream political philosophy—birthed by Rawls’s A Theory of

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Justice—emerged out of the postwar period in Anglo-American countries and was consequently shaped by its distinctive set of political circumstances and ideological commitments.11 But what should become of contemporary political philosophy when its reigning orthodoxy no longer speaks relevantly to the politics of today? What are the defining political circumstances of this moment? And how might virtue politics rise to the occasion? Our story is one of disunity in the various stations of society. It begins at the top with a lack of trust in institutions. That lack of trust then makes what could be cool and calm divisions at the political and cultural level much more heated. This, in turn, makes it more difficult for individual citizens to trust one another, weakening the stabilizing force of the legal and social norms that bind us together. As a result, persons become alienated and atomized from one another and the communities and cultural contexts that give their lives meaning. Finally, when it comes to the big questions of politics, such as “what should the government do?” and “what is my role within the political community?” consensus and compromise are impossible, and we are left paralyzed. Our lack of trust in institutions, I contend, arises from the disconnect between the presumptive authority of institutions and their ongoing relevance to our lives. The institutions that rule over us no longer command authority and allegiance because they are no longer functioning properly. We view them as foreign artifacts or appendices, rather than what they should be: part of the necessary social framework for living a good life. To reestablish the proper functioning of institutions requires a recommitment to the dependence of individual good lives on the institutions within which they develop. For social trust can only be reestablished after a long experience of continued success in support of a shared life. But for this to be possible, we must see institutions as a medium through which persons act in pursuit of living well, rather than oppressive and alien entities opposed to our essential desires and interests. This lack of trust in institutions filters down to our ideological, political, and cultural divisions. If we cannot trust political institutions to carefully adjudicate rival positions on heated social issues such as abortion and gun control, then those differences become much more salient to the identities of individual citizens. What was formerly the domain of political compromise and negotiation becomes a spiritual battle between the forces of good and evil, where cooperation and compromise with the enemy is tantamount to confessing one’s own sins. The only way to avoid this standoff is for both sides to rediscover the views of the good implicit in our shared political tradition(s). To recognize that such traditions do not speak with one voice is to recognize the intractability of such disagreements. But, as I have argued, disagreement is tolerable when there is joint commitment to the shared good of living well as equal members of the same political community.

154 The Role of Good Institutions in Living Well Absent this joint commitment, there is little reason for individual citizens to trust one another, which, when coupled with the already low trust in institutions, threatens the very existence of the political community. Fellow citizens have reason to distrust one another when they believe that they do not share basic views (not theories) of justice. For justice is about what persons are owed, and if persons do not get what they are owed for long enough, they may believe they have little reason to abide by the rules of the game and every reason to destroy the existing game. In this way, someone might hold very lofty ideals of justice but fail to abide by the most rudimentary legal and social norms of her own political community. This is one of the many reasons why we should restore the virtue of justice to its place as the virtue of a person who observes and upholds the legal and social norms of the political community in the course of her efforts at reform. Only then will we preserve the essential link between justice, law, and social trust among fellow citizens. Decreased institutional trust is tolerable where fellow citizens still trust one another. However, in the absence of social trust, it is impossible to sustain a community at any level, and the inevitable consequence is a loss of meaning and identity. For we form our conceptions of living well— who we are and what we stand for—in the cultural contexts of institutions. Without this context, we become atomized and alienated from the things that give life meaning: family, learning, work, recreation, and fellowship with others. The first step to avoiding this fate is recognizing the political sense of friendship that distinguishes fellow citizens as friends rather than enemies. Political friendship is the source out of which other forms of friendship develop. The fact that we share in the history and traditions of the same political community prevents internal enmity and civil strife. Although undoubtedly liberals and conservatives disagree about the role of government, it is only when the foregoing elements of a properly functioning society are in place that it makes sense to ask questions about the role of government. Liberals and conservatives, for instance, are divided about the extent to which government should provide for its citizens and the extent to which individual responsibility should take priority. Broadly speaking, conservatives view government as an obstacle to living well, whereas liberals view government as the handmaiden of living well. As my analysis has shown, both are right in their own way. Political institutions are necessary to provide the conditions for living well, which include a constraining and a formative role. Good institutions are determined by what we need for living well. But institutions also require that citizens take on the responsibility of living well for themselves, so that political institutions do not dominate, and eventually destroy, the social and cultural contexts in which living well is possible. Bringing the preceding paragraphs together, how should we view the relationship between contemporary political philosophy and liberal

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democratic politics? The dominant view—forged in Rawls’s important work—instructs us to develop ideal theories of justice, to construct principles of justice for the basic structure of society, and then evaluate our own society in accordance with how it measures up to such principles. Thus, we could ask whether our own society is living up to the Difference Principle, or whether our own society sufficiently compensates persons for suffering from bad brute luck.12 My alternative proposal is to focus on each person’s effort to live well, given the social and political context in which we find ourselves. Instead of asking how we can conform society to fit our preferred principles of justice, we should ask: How can we conform ourselves to what is necessary for living well with others in a properly functioning liberal democracy? In a democracy, of course, the responsibility for the health of the political community rests with each person, and so to neglect one’s own virtue is to neglect, in however small part, the overall well-being of the political community. The role of a philosophically informed citizen, then, is to develop and exercise the virtues in support of, and sometimes to reform, the political institutions of her society. What results may not be an ideally just society, but it will get us closer to justice as a virtue of institutions and character.

Virtue Ethics The previous sections detailed ways in which my account can be used to illuminate issues in political philosophy and liberal democratic politics. There are also ways in which we can gain a deeper understanding of the virtues through thinking from a virtue political framework. So, to close, I mention three possible avenues of future research. First, in developing my account, I have been concerned primarily with developing a framework for thinking about virtue and politics. Such a framework, I believe, requires a conception of justice and (political) friendship because these are the virtues that unite individual flourishing, realized by practical wisdom, with the flourishing of others. I have not, however, explored conceptions of the other two cardinal virtues— courage and temperance—nor have I considered the Christian or theological virtues of hope, faith, and love. It would be worthwhile to think about how these virtues strengthen institutions, and in turn, how particular institutions either encourage or hinder the development of such virtues. Second, focus on the virtues might usefully be taken up in connection with other disciplines such as psychology and economics. I take my philosophical account to have laid some of the conceptual work within which we can think about compelling ideals of living well. But such an account is bounded by what is possible, both for us as the kind of beings we are, and for the environment of scarce resources and constraints within which

156 The Role of Good Institutions in Living Well we practically reason. Empirical work in psychology can tell us a lot about the former, while economics can frame the nonideal constraints we face as practical reasoners. Finally, and perhaps most importantly, I have stressed that we learn to be virtuous within our socially embedded circumstances. As Aristotle reminds us, the virtues are realized, in part, by developing habits that we first encounter very early on in life. For this reason, the success or failure of virtue politics in practice depends crucially on moral education, that is, the ways in which we can reasonably expect persons to acquire the virtues in their social, political, and cultural contexts. This is ultimately how we become educated about the kind of life we share together as members of the same political community. I have assigned this task to the formative role of institutions. But in practice, it is a task that each person must take on for themselves. In doing so, I enthusiastically join Rosalind Hursthouse in “[fostering] the idea that nothing in our individual lives is more important than acquiring a correct grasp of what eudaimonia consists in, and nothing in our communal life more important than the moral education of our children.”13

Notes 1. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999 [1971]), p. 4. 2. T.H. Green, Lectures on the Principles of Political Obligation (Cambridge: Cambridge University Press, 1986), Section 114. 3. Rawls, A Theory of Justice, p. 8. 4. Ibid (emphasis added). 5. Ibid (emphasis added). 6. David Estlund, “Human Nature and the Limits (If Any) of Political Philosophy,” Philosophy & Public Affairs, Vol. 39, No. 3 (2011), pp. 207–37. 7. David Miller, “Political Philosophy for Earthlings,” in Justice for Earthlings: Essays in Political Philosophy (Cambridge: Cambridge University Press, 2013), pp. 16–39. 8. Rawls, A Theory of Justice, p. 3 (emphasis added). 9. G.A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008), pp. 116–8. 10. Ibid., Ch. 7. 11. Katrina Forrester, In the Shadow of Justice: Postwar Liberalism and the Remaking of Political Philosophy (Princeton, NJ: Princeton University Press, 2019), Ch. 6. 12. See G.A. Cohen, “On the Currency of Egalitarian Justice,” Ethics, Vol. 99, No. 4 (July 1989), pp. 906–44; Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000), pp. 73–4. 13. Rosalind Hursthouse, “After Hume’s Justice,” Proceedings of the Aristotelian Society, Vol. 91 (1990–1991), p. 245.

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Index

Adams, John 2 allegiance 29, 32–4, 91, 140–1, 151, 153 anarchism 26–7, 35, 139 Annas, Julia 8, 25, 46n46, 67, 79 Anscombe, Elizabeth 23–5, 89, 114–16 Aristotelian Idea, the 9–10, 41–4, 54, 56–7, 114 Aristotle 3–6, 8, 11, 17, 19, 25, 39, 44–8, 53, 55–7, 65–7, 73–4, 79–80, 84–6, 93–7, 99, 100, 108–10, 115, 124, 129, 135–7, 142 atomism 49, 101, 121, 139 authority: of family 28, 141; and law 75–7; liberal view of 70; nonpolitical 11–12, 140–1; political 5–6, 9–10, 17–18, 20–7, 30–4, 69, 150, 153; problem of 5, 17, 20, 22, 34; Socratic view of 34–5; of virtue 12 autonomy 107–8, 138–139 Berlin, Isaiah 44 Bradley, F.H. 7 Burke, Edmund 54–5, 78, 139 Cicero 19, 32, 97–8 citizenship 7, 29–30, 32, 73, 84–6, 91–8, 128–31, 141, 147, 154 civil society 11, 25, 129, 131–4, 138–43 civil strife 2, 42, 92, 96, 98, 154 coercion 26, 33, 119, 121 Cohen, G.A. 95n35, 151 common good 7, 10–11; and community 84–5; and faction 48–9; as political friendship 94–101, 124, 148; the problem of 85–7; and public discourse 88–92

communitarianism 92–3, 99 community 11–12, 84–5, 92–3, 101, 130–1, 134, 142, 154; political 2, 7, 9, 10–11, 17–18, 25, 28–30, 32–4, 41–4, 45–8, 52–7, 73–7, 84–7, 91–2, 94–8, 101, 121, 131, 141–3, 147–8, 152–6 conservatism 77–8, 87–8, 154 conventionalism 11, 114, 116 cosmopolitanism 17, 29 courage 109, 117 COVID-19 pandemic 149 culture 131, 151; culture war 3 de Jouvenal, Bertrand 85n5, 98 Deneen, Patrick 39, 128–9n3 desire 20, 111–12, 131–2 de Tocqueville, Alexis 12, 39–40, 101, 130–1 disagreement 2, 26, 44, 46–9, 53, 77, 87, 89, 91–2, 123–4, 147, 151, 153 division of labor 43, 78, 133 duties see obligations Dworkin, Gerald 136 Dworkin, Ronald 27 economics 39, 48, 78, 90, 107, 132, 133–4, 155–6 egalitarianism 107–8, 151, 152, 155 equality 101; and capabilities 118; of opportunity 132; political 77; reciprocal 6, 97; see also egalitarianism Estlund, David 149 eudaimonia 6, 18–20, 25–6, 46–8, 66, 77, 114, 121, 156; see also living well eudaimonism 18–20, 22–3, 28, 34–5, 39–40, 45, 63, 73, 85, 108, 110–11, 128

Index faction 10, 45, 48–9, 51–4, 56, 72, 75, 91–2 fact of social embeddedness, the 19, 25, 28, 34, 73, 86, 113, 121, 152 fairness 29n53, 35, 64–6, 69–73, 77–8 family, the 8, 11–12, 18–19, 28–31, 73, 85, 90, 93, 132, 134–6, 139–41, 143 feminism 132, 143, 151 filial piety 141 flashbulb memories 1–2, 149 Fleischacker, Samuel 43 Forrester, Katrina 152–3 friendship 2, 7, 10, 24, 89, 91–5; political 11, 84–5, 96–102, 124, 148, 154–5 freedom 11, 22, 24, 45, 52–3, 100, 129, 140; see also liberty games 32–3 Gaus, Gerald 5, 20, 49 good citizen 28, 33, 54, 84, 91–2, 142; see also citizenship good life 3–7; Aristotle’s conception of 46–8; and autonomy 107–8; as eudaimonia 18; as a political concept 9–10; and practical reasoning 68–9; as purpose of a political community 41–3, 124; thick vague conception of 118; as a virtuous life 90; see also living well Green, T.H. 148 habits 134–8, 143, 156 Haidt, Jonathan 89, 135n28 happiness 19–20, 46–8, 84, 130, 131; see also eudaimonia Hardimon, Michael O. 7 Hayek, F.A. 65, 74, 133n18 healthcare 122–4 Hobbes, Thomas 26, 28, 94, 100 Horton, John 35 Huemer, Michael 5n18, 35, 21n23, 35 human nature 2–3, 42–3, 46–7, 57, 133, 149, 151 Hume, David 1, 3, 24, 51, 89, 93–4, 113–16 humility 134 Hursthouse, Rosalind 11, 12, 31–2, 68–9, 75–6, 113–14, 121, 128, 156 ideal theory 68, 77, 149–50 individualism 130 institutions 6–12; and the common good 96–101; the constraining role

167

of 107–8; economic 133–4; the formative role of 128–9, 138–43; and habits 134–5; and interpersonal constraints 110–12; and justice 63–4, 67–9, 74–5, 77, 79–80; necessary for living well 121–4; and pluralism 151; and political authority 17–18, 25–6; and practical wisdom 108–10; public trust in 2; religious 134; and rights 112–16; as schools of virtue 132–4; and shared good 148–9; social 129–31; and social membership 56–7; and social trust 49–50, 153–5; and stability 33; and virtue 4–5 Jim Crow South 31–4 justice 3; and the basic structure of society 143; circumstances of 93–4; and the common good 97; compositional view of 7, 64, 66–71, 74, 79; criminal 116; distributive 107, 118; fairness conception of 69–73; and friendship 92–5; global 152; Hume’s view of 113–14; and ideal theory 149–52; individual 65–6; institutional 66–9; as lawfulness 73–7; and living well 155; as a mean 79–80; natural 124; political conception of 40, 49, 89; and rights 128–9; as a shared good 54–7; and social change 77–9; and social trust 154; and stability 50–2; Stoic view of 91; structural view of 7, 64, 66–70, 77, 80; virtue and good life 4–5; as a virtue of character 7, 10–12, 63–4 Kantian ethics 70–1 Kekes, John 65–6, 107n5 Kraut, Richard 73–4 Larmore, Charles 5, 44, 49, 56 law(s) 21, 24, 27–8, 64–5, 71–7, 140, 147; common 56, 123; constitutional 117; natural 81; Roman 63; unjust 77–80; and virtue 129, 134–8 LeBar, Mark 5, 7, 10, 31, 44, 69–74, 111 liberal democracy 6, 7, 10, 39, 51, 56, 128–9, 131, 133, 152–5 liberalism 39–40, 48–9, 63, 124, 128–31; classical 8, 69, 119–21;

168

Index

neo-Aristotelian 56; political 44–5, 49–52, 54, 70, 74–5, 89, 91, 117–18; public reason 49–52, 56, 74–5; virtue-political 40, 45, 52–7 libertarianism 100 liberty 11, 24, 98–101, 119–21, 135 living well 7, 11, 19, 39, 40–8, 56–7, 85, 90, 94–5, 107–16, 117–25, 128, 131, 142–3, 152–5; see also good life Locke, John 5, 97, 129 love 90–2, 102, 132, 155 Lucas, J.R. 73 MacIntyre, Alasdair 28n52, 44, 55, 89, 111n18, 138 Mack, Eric 40n7, 115 Madison, James 3 Marx, Karl 133 McCloskey, Deidre 90 meaning 5, 25, 49, 143, 153–4 metaethics 152 metaphysics 152 Mill, John Stuart 78, 88, 109, 129, 135–6 Miller, David 149–50 Miller Jr., Fred 112n20, 124n57 modernity 5, 40, 44, 57 moral development 17–19, 135 narrative 1–3, 88–9, 102, 132, 147–9 Nathanson, Stephen 28 neighborliness 30, 142 Nisbet, Robert 130, 138–40 nomoi 10, 64, 73–81, 84–8, 91–2, 98–9; see also law(s) Nozick, Robert 110, 129 Nussbaum, Martha C. 8, 11, 85, 116–19, 121–2, 151–2 Oakeshott, Michael 95 obligations 6; associative 27–9; moral 17, 25, 70–4, 121; political 6, 18, 20–3, 27–31, 34, 70–4; and practical wisdom 138; role 7, 73, 113; and social membership 52–3, 91, 96, 147–8, 152 O’Connor, David 94 O’Neill, Onora 4 overlapping consensus 40, 49, 117, 150–1 paternalism 29–30 patriotism 28, 91; see also allegiance Plato 32, 34–5, 41–3, 63–4, 92n27

pluralism: problem of 5–7, 9–10, 84; reasonable 39–40, 44–5, 48–53, 56–7, 72, 75, 89, 148; value 44 political identity 28, 53 political legitimacy 21–2, 31–4, 41 political order 22–3, 26, 31–2, 39, 45, 50, 86, 88, 91–2, 94, 99–100, 150 political polarization 2, 88–9 practical reasoning 19–20, 26, 46, 68, 87, 122, 134–5, 147, 149 practical wisdom 7–8, 10–11, 19, 47–8, 54, 64, 79, 86–7, 98–100, 108–12, 119–24, 130–4, 136–9, 148–9 problem of unification 6–7, 10–11 public discourse 4, 87–92, 94, 102 psychology 23, 30, 34, 89, 155–6 Rasmussen, Douglas and Den Uyl, Doug 11, 116, 119–21 Rawls, John 4–6, 8, 40–5, 46n44, 48–52, 56–7, 63, 67–71, 77, 80, 84, 89, 93–4, 107, 114n32, 129, 130, 132, 133, 143, 149–52, 155 reciprocity 33, 50, 70–1, 96 reflective equilibrium 8 responsibilities 28–9, 56, 98–101, 129–31, 141–3 rights 8, 11–12, 21, 84, 108, 140, 142; human 152; institutional theory of 112–16, 148; and liberalism 100–1, 117, 128–31, 143; membership 28–9, 33, 91, 97–8, 56; natural 54, 118–25; property 113–16, 122–3; as side-constraints 110 Rousseau, Jean-Jacques 5, 22 Russell, Bertrand 8 Russell, Daniel C. 5, 26, 110 Scanlon, T.M. 70–1 Schmidtz, David 8–9, 77n53, 115n34 Scruton, Roger 28n50, 52, 53n76 self-respect 133–4 Sen, Amartya 3 Seneca 17–18 shared good 2–3, 40, 45–9, 53, 141 Sidgwick, Henry 20, 68, 110–11 Simmons, A. John 21n25, 27, 29n56 slavery 3, 77, 114; see also Jim Crow South Smith, Adam 32, 42–3, 54, 84, 91, 133 social change 76–9; see also social progress social contract theory 5, 22, 24, 35, 50–1, 53–5, 108

Index social cooperation 26–7, 41–4, 50, 85–6, 132, 150 sociality 41, 85–6, 94, 120–1 social membership 27–30, 40, 52–6, 95, 141–3 social morality 25–7, 96 social norms 6–7, 10, 64, 75–80, 99, 108, 129, 132, 135, 136, 141, 153–4; see also nomoi social ontology 99–100 social progress 78, 101–2 social unity 39–40, 45, 50–7, 98, 150 Socrates 34–5, 41–2, 63–4, 80–1 Solum, Lawrence 75–6 stability 6, 10, 33, 50–2, 54, 56, 79 state neutrality 37, 39, 45, 52, 151 Stoics, the 3, 17, 26, 46, 67, 90–1 Strawson, P.F. 25–6 subsidiarity 140 suffrage 78, 123 Taylor, Charles 24, 49, 95, 99, 101 temperance 63, 80, 108, 117, 134, 155 Thucydides 2 tolerance 53n77, 133, 142, 151 totalitarianism 139 tradition 55–6; and living well 131; political 7, 10, 65–6, 74, 76, 78–9, 81, 113, 123, 153–4; and social membership 40, 72; and virtue 18, 89 trust 2, 26, 39, 49–52, 74–5, 94, 153–5

169

utilitarianism 68–9 Vallier, Kevin 49–50 virtue(s) 3–5; aspects of 68; of character 10–12, 63–4, 151; and citizenship 141; civic 92, 129, 141; as a constraint 31, 34; and democracy 155; development of 138–41; and disagreement 87; and education 142, 156; and law 134–8; and liberalism 39–40, 45–8, 128–31; moral framework of 89; nonrelative 117; and political authority 9, 17–18, 23–27, 147–8; and political obligation 27–30; as a practical skill 7, 18–19, 135; and public discourse 92; and reasonable pluralism 9; and right action 20; and social roles 86 virtue ethics 4–5, 12, 155–6; see also eudaimonism virtue politics 8, 12, 39, 149, 153, 156 virtuous person, the 5, 17, 20, 32, 46, 63, 73, 84, 86, 88, 135, 137; see also virtue(s) Wiggins, David 66 Williams, Bernard 50, 80 Wittgenstein, Ludwig 113 Yack, Bernard 93