Friends, Citizens, Strangers : Essays on Where We Belong [1 ed.] 9781442675063, 9780802090799

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FRIENDS, CITIZENS, STRANGERS

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RICHARD VERNON

Friends, Citizens, Strangers: Essays on Where We Belong

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

www.utppublishing.com © University of Toronto Press Incorporated 2005 Toronto Buffalo London Printed in Canada ISBN-13: 978-0-8020-9079-9 ISBN-10: 0-8020-9079-6

Printed on acid-free paper

Library and Archives Canada Cataloguing in Publication Vernon, Richard, 1945– Friends, citizens, strangers : essays on where we belong / Richard Vernon. Includes bibliographical references and index. ISBN: 0-8020-9079-6 1. Citizenship – Social aspects. 2. Citizenships – Moral and ethical aspects. 3. Social participation. 4. Political participation. I. Title. HM771.V47 2005

302¢.14

C2005-904955-3

This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Programme, using funds provided by the Social Sciences and Humanities Research Council of Canada. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

Contents

Preface vii Introduction 1 2 3 4 5 6 7 8 9 10 11

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Neighbourhood and Conscience in Locke 15 Why Is Rousseau Difficult? 39 Mary Wollstonecraft: Stoic, Republican, Feminist 58 Auguste Comte’s Cosmopolis of Care 81 ‘In Rooms Adjoining’: George Eliot and the Proximate Other ‘Proudhonism’: Or, Citizenship without a City 119 J.S. Mill’s Religion of Humanity 140 Henri Bergson and the Moral Possibility of Nationalism 162 What Is Crime against Humanity? 181 On Special Ties (1): Jesus or Polemarchus? 201 On Special Ties (2): What Do We Owe? 225

Conclusion: On Associative Duties Notes

271

Bibliography Index

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305

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Preface

This book is a first attempt to confront directly a very large issue that has been in the background of my work, unaddressed, for many years. My scholarly work began with an assessment of French theorists, such as Sorel and Proudhon, who were of particular interest to me because of the fiercely localist critique that they brought to bear against the state. Coming to terms with their views led to a broader inquiry into the question of political scale in modern French political thought generally, a question that I went on to explore at some length. In the course of doing so, I was led to think about the liberal tradition as well as the anarcho-socialist tradition with which I had started, and so was led naturally to think about the British political thought that has exercised such a predominant influence upon it. And then, inevitably, thinking about the issues raised by liberal icons such as Locke and Mill led me in turn to attempt another, rather more difficult, transition: from intellectual history to the (analytical) version of contemporary political theory that is very largely descended from their work. As it happens, my interest in that field emerged at a time when political philosophers were seriously questioning the idea that the state formed the essential and unbreakable frame of normative inquiry, and were introducing basic issues of global justice. So I was then led to think about what it was, if anything, that justified putting one’s own country first: and in the course of that I was led back, in a new way, to the discussions of locality and partiality that had figured prominently in my more historical inquiries. Should we put locality before citizenship, citizenship before human obligations? Looking back, some form of that question has always engaged me, although I have never before found a context in which to address it directly. This book, I hope, creates the context for reflecting critically on some differ-

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ent versions of that question in political and moral thinking. Some I have written about before, and I welcome this opportunity to extend and revise (and in some cases overturn) previously published views, in light of the general perspective adopted here. Others are quite new to me. Three chapters of this book (8, 9, and 11, respectively) are substantially the same as previously published journal articles: ‘Bergson’s Two Sources Revisited: The Moral Possibility of Nationalism,’ Contemporary Political Theory 2 (2003), ‘What Is Crime against Humanity?’ Journal of Political Philosophy 10 (2002), and ‘Against Restitution,’ Political Studies 51 (2003). In addition, much of chapter 2 brings together and revises parts of two previous discussions of Rousseau, in Citizenship and Order: Studies in French Political Thought (University of Toronto Press, 1986, chapter 1), and Political Morality: A Theory of Liberal Democracy (Continuum, 2001, chapter 3). That it took me quite a while to see the connections between those two discussions is, I think, live testimony to the ‘difficulty’ referred to in the chapter’s title! I should like to convey my thanks to Charles Jones for insightful and encouraging comments on several parts of this book; to Steven Lecce, whose doctoral thesis helped me towards the conclusions of chapter 1; to Laura Janara for comments on an earlier version of chapter 3; to Sally Vernon for comments on an earlier version of chapter 5; to members of my university’s Moral, Political, and Legal Philosophy Research Group for stimulating discussion of the topic of chapter 10; to the University of Toronto Press’s two anonymous readers, for their suggestions for improvement; and to two wonderful students, Rhiana Chinapen and Kish Vinayagamoorthy, for tolerating my coercive insistence on the need to read George Eliot. Don’t even think of pinning responsibility for this book’s shortcomings on any of these wholly blameless people.

FRIENDS, CITIZENS, STRANGERS

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Introduction

The question of priority of attachment (the ‘where we belong’ of this book’s subtitle) has framed important episodes in the history of political and moral theory, basically shaping theorists’ ambitions as well as the problems that their views confronted. As the later chapters below demonstrate, the question arises, too, in varied contemporary contexts: in jurisprudence, in academic moral philosophy, and in questions of public policy, different levels of attachment make rival claims on moral agents, all the more strongly because they are often connected with different facets of identity itself. The question has attracted many answers, in both the history of ideas and in contemporary theory. Throughout this book, proposed answers are criticized; and in the final chapter a proposed solution is eventually outlined. But evaluating the rival solutions presupposes a view of the question itself: so it is an important task of this book to explore some of the varied (and variously motivated) forms that it has taken, in moral and political proposals of several different kinds. Those proposals illuminate, I hope, both the significance and the complexity of the issue, past and present, as well as helping to define what it is. The main title of this book is meant to evoke three sorts of relationship. Ties of ‘friendship,’ a term that stands in for all kinds of special and partial relationships, are ties of basic importance to us and, whether chosen or unchosen, arise from the particular and local character of our lives, lived as, clearly, they must be, in particular local contexts. Ties of ‘citizenship’ are those that arise from sharing political space, from common subjection to law, and from participation in institutions and processes through which consent to political authority is generated. Ties among ‘strangers’ arise among those who are not connected as friends or citizens: they arise among those who are ‘only humans,’ as Rousseau

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put it,1 categorially but not concretely related to us. Intuition at once suggests the importance of all three relationships to morality. No one could put forward a plausible view of obligation in which friendship (and the like) counted literally for nothing, or in which other humans were simply interchangeable with one another, regardless of their personal histories – fantastically free-floating beings; in which civic responsibility (whether identical with that of the modern state or not) had no moral weight at all, so that each of us could innocently free-ride on the sacrifices of others; or in which other human beings, however remote from us, could be treated with complete disregard – as though they were mere objects or instruments, of no moral account, by virtue of lacking any sort of claim. Nor, moving beyond the narrow question of obligation, is it at all easy to imagine a (non-eccentric) view of the good life in which any of these three elements were literally extinguished – in which nothing special was due to friends, in which civic responsibility could be shrugged off as something of no concern, or in which being human counted for just nothing at all. So the most ordinary moral intuitions tell us to accommodate all three kinds of attachment, if we can. And yet, one of the very first things that comes to mind, in thinking about these kinds (levels) of attachment, is a large and familiar stock of fables and anecdotes whose effect is dissimilating, suggesting various deep tensions or exclusive choices. What about Antigone (most people’s first choice of example!), whose duty to her brother commits her to rebellion against civic order? What about E.M. Forster’s much-quoted remark that preferring one’s country to one’s friend would be moral cowardice? What about the Spartan mother, described in such a chillingly appreciative way in Rousseau’s Emile, who cares nothing about the life of her sons as long as her country wins the battle? What about the SS officer whose scrupulousness about national (and professional) honour makes him a deadly member of an evil cause? What about the young man who, according to Jean-Paul Sartre’s famous anecdote, sought advice about whether to look after his needy mother or, rather, join the Resistance? (If the latter, by the way, what exactly would he then have been fighting for? France? Justice?) What about the cosmopolitan dogooder, whom Dickens satirizes in Bleak House – no less brilliantly and mercilessly than he satirizes the blinkered patriot in Our Mutual Friend – whose remote and condescending vision blinds her ridiculously to the immediate and pressing needs of those around her? Or the universalist liberal, so insistently condemned by critics of John Rawls, who in pursuing justice cannot, they complain, adequately protect the basic need for

Introduction 5

community, and so cannot even support the common institutions to which justice can be applied? Persuaded by dilemmas of all those kinds, we might be led at least to entertain the late Isaiah Berlin’s complaint against the bewitchment of unity – against the disposition to believe, despite all the evidence, that ‘all the correct answers must, at the very least, be compatible with one another,’2 that there are no basic moral choices, no incommensurable values, nothing resembling tragedies that preclude any right answer at all. Contrary to such ‘utopian’ beliefs in final harmony, there are choices that, according to Berlin, will involve serious loss however we resolve them in practice. Or we might, instead, be attracted to the dualism of ‘equality and partiality’ constructed by Thomas Nagel: from one standpoint, each of us occupies a special context in which we quite properly want to give preference to our own and our close associates’ interests, yet from another standpoint we must refuse to give anyone’s interests a special moral weight – and ‘fulfilment of the one will almost inevitably clash with the fulfilment of the other.’3 Or, along somewhat parallel lines, Samuel Scheffler has argued that each person has ‘associative’ duties that comprise her relationships but are irreducible to the demands of general or cosmopolitan justice4 – an important argument to be considered in the final chapter below. But despite the weight of these examples and the pluralist or dualist views that they may support, the tendency of so much of moral and political thought is persistently assimilative and accommodating. Here the historical chain of ideas is very long and varied indeed. At one end is the view of later (Roman) Stoics (such as Cicero) that duty to humanity effectively merges, for most practical purposes, with duty to one’s state (especially, of course, when one’s state happens to be a world-state). At the other (and quite different) end is Richard Rorty’s view (discussed in chapter 10 below) that although all morality really amounts to ‘loyalty’ to some group, there is potentially a sort of universal loyalty that corresponds to the claims advanced on behalf of human rights. The history of this complex chain would also need to find a place for the view that it is through membership in nation-states that human rights are best respected, and the very different view that it is through nationalism that contributions of a world-historical kind are made. So, while special ties, or shared national citizenship, or common humanity are taken, variously, as starting-points, the conclusion, very often, is that the two residual categories can be given a satisfactory though subordinate place: that the good friend will be a good citizen and a responsible human too,

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that the good citizen will find a place for both narrower and wider ties, that the good human being will be understood in a way that finds a place for both friendship and civic responsibility, those ties, in fact, being actually underwritten and sustained by ‘humanity.’ And so we face a large question. We need to understand what we may term the assimilative tendencies in moral and political thought, that is, attempts to accommodate our varied attachments within a master duty; and we need to understand what we may term the dissimilative tendencies too, that is, the critical voices that draw our attention to tensions or contradictions or tragic choices. If one or other of the assimilative views survives critique, that is something important for moral thinking: it means that some of the duties to which we may ascribe basic significance have in fact only a subsidiary or derivative standing – and that would give us some guidance in assessing priorities. If on the other hand the dissimilative view prevails, then we would have to look further for ways – either principled or pragmatic – to sort out the scope of rival claims by friends, citizens, and strangers in our lives. These contested issues of moral philosophy set the context for this book. But within that very large context, the book’s main focus is on a narrower question of political theory. It is of great general moral interest that three different and possibly exclusive levels of attachment make potentially incompatible claims on us. But it is of special interest to political theory that critical discussion of these three levels places such a large and basic question mark over the place, and content, of the political attachment itself. That attachment can’t avoid becoming the site of confrontation between the partialism of friends and the cosmopolitanism of strangers. If the ‘friendship’ model prevails, if, that is, partial or special or exclusive attachments are at the centre of our obligation, then civil ties are best understood as ties that belong among those things that we owe to particular others, as things that set us off from ‘humanity’ in general, just as friendships or families do. If so, then of course our ties beyond the state must be correspondingly weak, if indeed they exist at all. On the other hand, if a ‘cosmopolitan’ model prevails, and our duties to co-citizens are simply among those things that we owe to fellow-humans, all of our particular ties (civic and sub-state) necessarily diminish in their force, for then they would seem to be nothing but derivatives, subject to adjustment or perhaps even annulment when the larger obligation comes into play and pre-empts them. Moreover, the question has force not only for (possible) obligations beyond the national level but also for the nature of obligations within it.

Introduction 7

For if a national community is valuable for its particular and local character then its politics should legitimately be concerned to reproduce it, that is, to instil and prolong communal beliefs, perhaps at the expense of degrees of criticism and difference that may threaten them; its members should understand each other not as belonging to a Kantian ‘kingdom of ends,’ or as a set of persons of basic moral value, but, rather, as mutually instrumentalized – as useful to each other in realizing a common project. But if, on the other hand, a national community is to be understood as nothing more than a fragment of a larger human community, a sort of placeholder for cosmopolis (as Locke, for example, believed), then its established beliefs and practices will have a much less secure place in the face of reflective critique – they will have to yield to it, since reflective thinking is exactly what their own legitimacy depends on. So citizenship and political obligation stand at a contested mid-point between particular and universal ties. To be a citizen is of course to see oneself in distinction from, and often in opposition to, citizens of other states; it is to attach value to being Canadian rather than American, British rather than French; and in that sense it is much like valuing being a member of a particular family, on the grounds, moreover – and this is crucial – that it is, simply, one’s own group, not on the grounds that on the basis of disinterested moral inspection one’s group may turn out, in the end, to be better than other people’s groups: while moral inspection as such is certainly not ruled out, disinterested moral inspection is preempted.5 On the other hand, it is characteristic of states that they should justify themselves as vehicles of universal human values. This occurs, however, in two quite distinct forms. First, states present themselves as the largest institutional contexts in which the recognition of human equality can, in a practical way, be made real: while in principle every human being’s fate should weigh equally with us, in practice this very demanding requirement can be redeemed only within a smaller – national – context, in which the idea of shared humanity is reinforced by other shared properties (history, language, ethnicity, etc.) that give concrete force to what would otherwise be merely abstract. Second, and alternatively, each nation may contribute to humanity by making a distinctive cultural contribution, that is, by asserting and promoting its distinctiveness, not by limiting its demands on other nations. On either of these views, of course, the particularity of one’s nation can have only a conditional moral status, since national self-preference is justified in an essentially instrumental way. But is that compatible with the unconditional and unreflective attachment that is (normally) called for if a

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nation is to be like, say, a family? Can ‘it is my country’ carry the same sort of pre-emptive force as ‘it is my family’? We would all (quite rightly) try to rescue a parent from the burning building (in William Godwin’s notorious example): but Charles Jones is surely right to say that we would hardly be likely to spend time looking around for a compatriot to save.6 The general moral question, then, is about the relationship between three broad associative categories. The political question is about the conceptualization of citizenship: is it like friendship or other particular and exclusive ties? Is it, rather, a practical and compromising version of cosmopolitanism? Or is it a distinct category with its own distinct moral content – often represented as particularist, or as universal, but actually misrepresented if it is either assimilated to one or other category or else seen as intermediate between them? Is being a citizen like participating in a friendship (or a family), or like recognizing the claims of strangers – or really like neither? That question is pursued in this book in two general ways. The first two-thirds or so of the book draws, with obvious selectiveness, on the resources of the history of ideas. I examine four English writers (Locke, Wollstonecraft, George Eliot, Mill) and four French writers (Rousseau, Comte, Proudhon, Bergson) whose views on this topic are, to me at least, particularly unusual and illuminating. I concentrate on English and French political thought because in those two countries the themes sketched above have – for partly different reasons in the two cases – been particularly pronounced. A powerful tradition of liberalism in the English case, and of republicanism in the French case, installed a universalist doctrine in a dominant position. That doctrine was challenged or modified or compromised, in both cases, by the particularism natural to Europe’s two first successful nations. And themes of local attachment were injected, on the one hand, by the liberal respect for private associations, and, on the other, by provincialist resistance to an aggressively republican state. It is beyond question, of course, that the discussion could have been further enriched by going beyond those two national traditions. But they provide a diverse enough range of cases for the purely exemplary and non-comprehensive purposes of this discussion, and they give us a powerfully stated array of rival views. I begin with Locke, Rousseau, and Wollstonecraft because between them they set out a range of complementary approaches and also suggest ways of assessing them. Locke is of course the archetype for one of the three general views under discussion here: he sees political society as

Introduction 9

a placeholder for cosmopolis. A political society separates itself from ‘the rest of mankind,’ but only in order to secure the protection of natural rights, discerned by human reason itself, within its borders; moreover, I shall argue, there is a still stronger cosmopolitan requirement that political societies adopt political principles capable of generalization beyond their borders. So Locke clearly brings two of our three categories into play: but the chapter also claims that the third, partiality, has an equally central role, and that Locke’s politics is best understood against the background of a powerful sense of the role of group attachments. The chapter offers a view of Locke as anti-atomist, in short, or as a theorist who sees politics in terms of the just settlement of rival partial claims. Some see Locke’s view as an impoverished one, because it presents the polity as no more than a vehicle for standards of evaluation and legislation that are set outside and prior to it. So it is natural to juxtapose Locke with Rousseau, whose political thought expresses a strong sense of civic attachment and a view of politics that is ‘transformative’ (as opposed to ‘instrumental’) and morally heightened. But the contrast over-simplifies Rousseau almost as much as it over-simplifies Locke. The civic attachment, for Rousseau, is not – despite Roman echoes in his writing – a simple republican construct, but a complex idea that draws in part on moral universalism, while seeking to contain and harness it politically. The outcome, I argue, is a powerful but untenable blend of two views of citizenship, one (‘friend’-based) that is partialist and inherently exclusive, the other (‘stranger’-based) that is universalist and only contingently exclusive. I argue, further, that a distinction of this kind helps to unravel some of the famous mystery of the idea of the general will as the standard of political choice; it contains two distinct standards embodying different associative views. Mary Wollstonecraft draws on the traditions with which both Locke and Rousseau are associated, a moral universalism traceable to Stoic influence, and a republicanism with Roman and Renaissance roots. She draws skilfully on the rhetorical resources of both, constructing a complex argument that exploits convergences between the two, but also, ultimately, dramatizing the tensions between them. As a critical project her work is a brilliant success, and speaks strongly against any view that thought is constrained by discursive paradigms. But from a constructive point of view, the chapter argues, the lesson of her work is that only a moral universalism has the capacity to drive the radicalism that she favours.

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These writers, then, give us three different articulations of the relationship between universal and particular attachments in early modern thought, discussing in their different ways how the idea of a universal human obligation serves to define or correct or undermine local attachments. Exactly that topic is taken up, again of course in different ways, by nineteenth-century writers, four of whom – Auguste Comte, George Eliot, Pierre-Joseph Proudhon, and J.S. Mill – are considered next. Comte borrows from the Enlightenment its cosmopolitanism and encyclopedism while putting them to use in a profoundly different direction. In the phase of his thinking considered here, his main political objective was to empty civic attachments of any normative meaning whatsoever, in two related ways. One was to deploy an overarching ‘humanity’ to replace civic loyalty from above: the other was to deploy an undermining ‘love’ to replace civic loyalty from below, by promoting an all-absorbing domesticity. This project requires an elaborately dogmatic theory of gender, which in effect anticipates later discussion of (allegedly) female partialist ‘care’ and (allegedly) male universalist ‘justice.’ The chapter argues that his discussion of justice is constricted by a view of moral rights that is naive enough to cast doubt on his proposed dualisms. George Eliot is a novelist (and moralist) whose deep understanding of the particular has been rightly stressed, but also (I argue) misunderstood by critics who fail to see her no less deep universal concern, which is fundamental to her understanding of particular relations themselves. I present her as a critic of Comte, a critic who rejects the proposed division of moral labour between caring women and just men. That implied critique, however, is only emblematic of a larger view that insists on the presence of universal meaning in the smallest of human relationships. In particular, the element of ‘trust’ is essential not only to relations among individuals but also to the moral picture of the world in general. I argue, however, that while Eliot’s moral picture is both subtle and moving, her attempt to bring the value of national membership into it is ultimately unconvincing. Proudhon was among the nineteenth century’s most vigorous opponents of nationalism. In his later thinking, he offers a prescient ‘federalism’ that tries to capture the virtues of citizenship while dispensing, paradoxically, with anything like a ‘city.’ He wants, then, to build on the values of the democratic republic while banishing from human life the exclusive sentiments of nationality that have always accompanied political attachments even (perhaps especially) of a republican kind. The republican tradition is exploited with Wollstonecraft-like ingenuity, though

Introduction

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this time it is economic equality rather than gender equality that drives the quest. The chapter argues that ‘citizenship’ is the wrong choice of basic metaphor, and that its disadvantages show up not only in Proudhon but also in later theorists (G.D.H. Cole, Thomas Pogge) who follow somewhat similar strategies – here labelled ‘Proudhonist’ – to the extent that they too want to re-deploy citizenship, as an associative value, beyond its standard case. The case of Mill is of course very familiar to political theorists. He is a liberal who tries to build a liberal (or even Romantic) admiration of human difference – individual and national – into a moral theory that is often taken to be relentlessly aggregating. Like many other interpreters, I find the results very problematic. The idea of ‘humanity’ that enters his work is a (Comte-derived) collective idea: humanity is a transgenerational entity that functions very much like ‘utility’ in its aggregating tendency. The chapter argues that Mill’s liberalism can be sustained only to the extent that contractualist or Locke-like constraints are built in, enabling individuals to retain a concern for their own liberty: that we have to give more weight than Mill does to ‘humanity’ as a personal status, as opposed to a collective, if the idea of the human is to exercise its distinctive moral function as a constraint. The ‘historical’ section of this book – using that adjective in a rather general way, for the approach throughout is thematic and not contextual – ends with a chapter on Henri Bergson’s work, The Two Sources of Morality and Religion. I hope that decision is less surprising after reading the chapter than it is likely to be beforehand. Bergson is a disquietingly idiosyncratic philosopher whose dualism of ‘open’ and ‘closed’ societies sets out to unmask the assimilating tendencies of modern thought, and to dramatize the stark choices between the attachments that social convention hides from us: the nation-state is not, he argues, simply a Lockean placeholder. But it cannot be understood in purely partialist terms either: it has already taken on board (some of) the claims of moral universalism, and must have done so in order to encompass and overcome the more visceral (tribal) partialisms that it replaced. Bergson’s neglected book deserves to be placed at the centre of the political debate over nationalism, as it is subtle, many-sided, and very provocative, pointing forward to discussions that political theorists have recently found absorbing. Not one of the issues raised above – from Locke in the late seventeenth century to Bergson in the mid-twentieth – has become obsolete, whatever allowances we have to make for changes in the form in which

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they come to be raised. In contemporary thought, we still face dilemmas forced upon us by the sense that normative thinking resists easy confinement to any of the levels of association that prompt it. The sheer fact of human membership counts not just for something but, sometimes, for everything. This ‘Bergsonian moment,’ as we may call it, is recalled in the greatly elevated concern with global responsibility in recent years (whether or not it has effectively been translated into practice). At the other end of the scale, intimate or personal or local ties impose compelling demands of their own, and the deep interest in local engagements for which writers such as Eliot have long been admired has been taken up for close attention in recent moral philosophy. And in between, national membership, it is often thought, creates demands on us that, like global ones, stretch the scope of obligation greatly, and yet, like personal ones, are rooted – or are said to be – in our identity itself. That topic too has attracted extended discussion by contemporary moral and political theorists. So the last third of this book turns to contemporary topics that are central to and may help to focus those three large issues, by examining some of the strongest claims recently made for the three associative values discussed throughout this book. The first of this group of chapters (chapter 9) examines one of the principal irruptions of global ethics into recent political and legal thought: the idea of ‘crime against humanity.’ That idea directly confronts state action with moral and legal claims arising from the sheer fact of human membership. It directly raises the question of the conditions under which any possible civic obligation gives way to cosmopolitan morality. The answer, it is argued, concerns the (somewhat Lockean) element of ‘trust.’ When evils are committed that have as their necessary condition the (mis)application of state power – that is, evils that could not have occurred unless state organization existed – the justifying reasons for national sovereignty evaporate and give way to a supranational jurisdiction. The second chapter in the group (chapter 10) turns from the limits of civic obligation to discuss ‘special ties’ of a more personal kind, that is, the ties of friendship or kinship; and it criticizes recent moral philosophers who have claimed that such ties have a force that is entirely distinct from general human obligation. It tries to show that cosmopolitan morality need not be nearly as blind to particularity as ‘special ties’ theorists fear that it is. The universalist can accommodate particular ties quite wwell – and rather better than the partialist can accommodate universal ties, if we compare the relative absorptive power of the two approaches. The third (chapter 11) returns to the level of national

Introduction

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community and examines one of the strongest ‘communitarian’ claims of all: that we have primary obligations and debts arising simply from our national identity and a shared inherited past, not from moral considerations of a general cosmopolitan kind. Criticizing that view, the chapter puts forward some distinctions that either undermine or severely restrict the scope of this claim, suggesting that many of the duties imagined to be communitarian and historical in their origin would better be viewed as duties of general justice. The fourth chapter in this group – the conclusion of the book – tries to take stock of some core arguments and to offer a final assessment. It does so by examining the ‘associativist’ view, as it is now often called, that there are partial duties that comprise local relationships and cannot be reduced to general moral duties. That view crystallizes the issues discussed throughout this book and provides a natural way to bring many of them together. Distinguishing between various senses in which one duty might be said to be ‘irreducible’ to another, the chapter concludes that there is no reason to dismiss the idea of a single moral picture in which the claims of various levels of association acquire a common footing. It proposes, in outline, a moral picture in which the demands of any level of association need to be justified in terms of the net reduction of vulnerability that is brought about at the level below. This, it is argued, is a normative thread that runs through the varied contexts of reflection – intimate, civic, and global – discussed in this book, and gives us a point of departure for assessing the dilemmas that multi-levelled attachments pose. Since this is a work of moral and political thought, not a roman policier, there is no point in concealing the general nature of the conclusion. It is that the over-arching morality must be cosmopolitanism, i.e. the morality of strangers, because unless that is so we cannot give a convincing account, as we must, of the limits of either state power or social convention; but that cosmopolitanism is not only practically but also morally unsustainable unless we can find secure room within it for both ‘citizenship’ and ‘friendship.’ I believe that we can, although not without obvious tensions. I argue that citizenship has a morally secured place because it depends on mutual reliance: we can be co-citizens because you can reasonably rely on my accepting terms that I expect you to adopt, in the context of mutually binding institutions. I argue that ‘friendship’ also has a morally secured place, because the whole apparatus of moral obligation makes sense only to the extent that it gives us defences that we can waive or lift at our personal discretion, thus making

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trusting relationships possible. While it is true that cosmopolitan duty (as its critics complain) would be insufferable and inhuman unless its logic made a place for special attachments, it is also true that special attachments, civic or personal, would likewise be insufferable unless a framework of general humanity remained in the background, silently governing the accommodations that we make, for either civic or personal reasons. So, the conclusion: friendship and citizenship have their own distinctive character, but people can be good friends, and good citizens, only to the extent that they also know that strangers have moral standing that friendship and citizenship modify. Infusing this whole discussion, however, is a sense that unless we find choices of attachment problematic, we are not really making them at all, but are merely evading them, probably by clinging to an ideology that suppresses some elements of what a human life necessarily is, that is, a life lived within several horizons that all demand acknowledgment even when they impose conflicting requirements. The views discussed below are important either because they recognize both our multiple attachments and our need to choose among them, or because they deny this, in one way or another, provocatively. Some provide guidance; others perform the equally valuable task of showing us where we cannot in fact belong, thus usefully showing us what our real alternatives are.

1 Neighbourhood and Conscience in Locke

Both of Locke’s most important political writings begin by stating the same problem, the problem of partiality. The argument of the Second Treatise begins by telling us that although the state of nature is not a state of war, it is a state of uncertainty all the same, because people find it difficult to apply the law of nature in an impartial way.1 The Letter Concerning Toleration begins by telling us that the true (as opposed to the rationalized) cause of religious strife is the ‘zealous’ desire of people to enlarge and empower their own churches and to diminish and attack others. But, the Letter also goes on to tell us, partiality cannot be expunged from religious life, for it is characteristic of faith that it should find expression in community with those whom we wish to ‘walk with’ and to ‘trust.’ So, according to Locke, the topic of partiality is central to political theory in two important but somewhat different ways: in one way it poses a central problem for a theory to overcome, while in another way its protection is one of the central objectives that a theory must adopt. While Locke is certainly a universalist, then, drawing fundamentally on the tradition of natural law, within his political thinking the topic of partiality has an emphatically important place, both empirical and normative. Those are very simple facts. But they speak strongly against a pervasive view that Locke, far from being a theorist engaged front and centre with the political implications of group membership, was an ‘atomist’ who saw political society through the lens of an unrealistically asocial individualism.2 That reading of Locke draws on several sources. One is the ‘possessive individualist’ reading of his economic theory,3 a topic that I leave aside entirely here. A second is a somewhat literal-minded rendering of his contractualist theory. A third, with which this chapter is mainly

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concerned, is an interpretation of his defence of religious toleration that stresses its individualistic or ‘Protestant’ provenance. That view has an importance that extends far beyond Locke scholarship, for it relativizes the belief in tolerance and, sometimes, the entire liberal tradition in political theory, which, on the basis of a certain reading of Locke and others, is often taken to be the secular (or secularized) arm of the Protestant confession. According to Carl Schmitt, ‘All significant concepts of the modern theory of the state are secularized theological concepts’;4 this, however, is one case in which such a view is thoroughly misleading. It is also malign, if it tells us that only societies with a special kind of religious past are capable of sustaining any kind of liberal politics in the future – not a message that will be welcome to oppositional forces in ‘other’ societies, but one that their enemies will appreciate and (no doubt) exploit. ‘Neighbourhood’ – today we might perhaps say ‘community’ instead – is Locke’s term for partial ties unmediated by public authority; he contrasts it with ‘commonwealth,’ a standard term for political society. ‘Conscience’ is of course the standard term for the source of inner authority that is central, it is held, to Protestant belief, and which, it is also held, leads us to religious toleration and, through that, eventually to liberalism itself. This chapter argues that in fact Locke’s theory of toleration is structured around the requirements of neighbourhood, not those of conscience, and it therefore seeks to undermine the atomist reading of Locke and liberalism, in one of that reading’s influential variants at least. Nothing in the chapter, it should be noted, challenges the view that a Protestant matrix of thinking influenced Locke in many ways – an evident truth:5 the chapter is not about what was important to Locke, but about what is important to his argument for toleration, and what premises we have to adopt if we are to accept it. I begin by pointing to some ways in which the conscience-based explanation is implausible on its face, and go on to show how it misrepresents Locke’s actual defence of toleration against establishment critique. Even more seriously, the view under inspection here not only fails as an explanation, it even fails as an account of the way in which the idea of conscience was important to Locke, that is, as an idea whose political force is mediated by the effects of partiality. A brief parallel with Pierre Bayle’s almost contemporary (and similarly motivated) argument reinforces the point. Finally, the chapter returns to Locke’s (normative) defence of partiality and his view of the importance of community to faith. There is no paradox at all in the conjunction of this with universalism. In

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fact, it is exactly Locke’s defence of religious partiality that takes his argument in a transnational and ultimately cosmopolitan direction. I suggest some of the ways in which the recognition of partial loyalties leads us to the view that ‘toleration in one country’ (as we may term it) is unsustainable. I In a sociological classic,6 Max Weber argued that there was a moral and psychological connection between the religious beliefs of the Protestant Reformation in Western Europe and the new economic beliefs that were essential to the rise of a commercial society, based on the practices of acquisition and accumulation; that capitalism arose from a culture that had been shaped by a particular kind of religious ethic – that is, an individualistic ethic that stressed the supremacy of individual conscience. The parallel idea that a Protestant ethic is connected in an essential way to the politics of liberalism may never have been presented in a classic work of social science; nevertheless, it is very influential in contemporary political thought, and as noted above its acceptance has far-reaching consequences, from a political point of view. Many contemporary thinkers propose that we should think of liberal politics – like capitalist economics – as a direct consequence of the Protestant Reformation and of the ‘ethics’ that followed from it. Michael Walzer, for example, advances such a view, arguing that toleration was able to become the norm in the United States because non-Protestants (such as Catholics and Jews) were ‘protestantized’ in the sense that they came to assert their individuality and to attach less importance to authority.7 Others support this view in claiming that the debate between liberals and communitarians is largely a debate between those whose backgrounds are Protestant on the one hand and Catholic or Jewish on the other.8 A still stronger version of this view holds that liberalism is, essentially, Protestantism in a secularized form. A brief essay by L.A. Siedentop offers a strong and compact statement of this position. Western liberalism – its acceptance of pluralism, its belief in tolerance, its separation between state and society – is based on ‘Christian assumptions’ of a Protestant kind – ‘The assumption that society consists of individuals, each with an ontological ground of his or her own, is a translation of the Christian premise of the equality of souls in the eyes of God.’ Western liberal society, like any other, is ‘founded on shared beliefs,’ and all that is different about it is that in its case the shared

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beliefs arise not from common celebration but from ‘the privatising of God,’ postulating a strictly individual relationship between persons and the ‘deeper truth’ to which they alone have access.9 Protestantism raises this kernel of belief, latent in the whole Christian tradition, to a more self-conscious form. In a very famous essay, Charles Taylor, citing Siedentop approvingly, endorses the view that liberalism is ‘an organic outgrowth’ of the individualistic tendencies of Christianity, and therefore contrasts it with our need to be recognized as members of ethnic or religious groups.10 Siedentop’s essay, we may note, was one of many contributions to a debate that followed the publication of Salman Rushdie’s novel The Satanic Verses. That debate was fertile ground for the view under consideration here. According to one critic, Rushdie’s liberal defenders, no less than his Muslim persecutors, were conducting a religious war of their own.11 Their ‘religion’ is to be traced to seventeenth-century Protestantism and its idealization of conscience as a ‘bible within’ – each of us carries within us a source of authoritative judgment that must be protected as something sacred. And some aggressive defences of liberal freedom (advanced in the same debate) may well seem to confirm this judgment, in contrasting religious traditions in which personal interpretation plays a part and traditions in which the authority of texts is (said to be) beyond the reach of personal questioning.12 Writing with reference to British views of Islam in general, rather than to the Rushdie affair in particular, David Miller suggests that a ‘Protestant culture’ stressing individual conviction is likely to be in tension with a religion perceived to involve authority and deference.13 If we understand it to represent the secular form of Protestantism, liberalism is not, as it claims to be, an inclusive and tolerant set of beliefs, a set of beliefs that anyone may share, but, rather, a special creed passed off as a universal one. Such a view must have deeply discouraging implications for those who value liberalism but who cannot draw upon the historical and cultural resources of a Protestant heritage. It may suggest to them – or, as is still more likely (as noted above), to their critics – that the liberal politics that they favour must be bought at the expense of important religious commitments that non-Protestant or (even more) non-Christian societies are often deeply attached to. It may suggest, further, a ‘clash of civilizations’ thesis that is not only destructive to both sides but is also a radical impediment to movements of reform or opposition within non-Western societies. But is the account outlined above true? Let us initially, and quite unoriginally,

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note some very general and quite well-known reasons for at least prima facie doubt. First, it entirely conceals from view the communitarian or republican elements in the Christian, and more narrowly in the Protestant, traditions. To represent Protestantism as essentially individualistic is, after all, to do a certain violence to the histories of New England and of Geneva, for example, where Protestant theology provided the spiritual basis for authoritarian and illiberal ways of life. And if we are looking for an example of what happens when Calvin is secularized, we would do very much better to turn to Rousseau than to Locke: it is Rousseau’s idea of an intensely solidary republic, rather than Locke’s ideal of extensive individual freedom, that better reflects the historical experience of Calvin’s deeply illiberal rule over the Swiss city of Geneva.14 Second, it contains clear ‘orientalizing’ tendencies (to borrow Edward Said’s famous term) in linking liberalism and tolerance essentially to the religious beliefs of the European and North Atlantic worlds. Amartya Sen has made polite but deadly fun of this tendency to posit distinct ‘Western’ and ‘Asian’ values, as though European history was not abundantly corpse-strewn by its persecutions, and as though toleration was unknown to non-Europeans!15 And specifically, in some of the examples noted above, the view essentializes Islam, taking at face value the most illiberal and authoritarian renderings of its political meaning. For the sake of making a contrast between the West and Islam, it assumes an idea of Islam that accepts without question the narrowest clericalist agenda, and assumes that political cultures other than Western ones are inherently closed to evolution. Third, by making everything hinge on a rough similarity of ideas, it sweeps aside the complex institutional history that explains how European states – often against their will, and in defiance of (or at the cost of reinterpreting) their theological beliefs – came to accept plurality and to embrace tolerance. It was not their fundamental values, or their cultural predispositions, but their circumstances that drove the history. Heiner Bielefeldt points out convincingly that after the fact we can point to connections between Christian doctrines and later political liberalism – but that this provides no grounds for believing that those doctrines necessarily had to develop in a liberal direction, or that the development of liberalism presupposed them, or that other societies did not contain tendencies that could have developed in a parallel way.16 Western states became liberal, not because they had a theological or cultural disposition in that direction, but because they were compelled to think about what political legitimacy could mean in a context of plural

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beliefs and plural faiths, which meant that political unity had to find some basis other than religious consensus. It is the fourth and final point that perhaps should be stressed most, however. If we consider the most famous efforts to justify toleration in the seventeenth century – the works by John Milton and John Locke in England, and by Pierre Bayle in France – we can hardly ignore the fact that they are written and defended against other Protestants. Milton defended freedom of the press against Presbyterians, who sought to impose their beliefs upon England. Locke engaged in a fourteen-year polemic with a persistent critic, Jonas Proast, who argued the case for imposing the doctrine of the Church of England. As for Pierre Bayle, he evolved his case for toleration against another influential Huguenot refugee, Pierre Jurieu, who argued that Protestants should deny toleration to their enemies whenever they could. So on the face of it – unless, incredibly, their opponents consistently misunderstood what Protestantism, as such, was about – it is at least unlikely that we will find Protestant theology, as such, at the root. For what we observe is a political argument taking place within a theology that is shared between the liberals and the persecutors. Evidently that theology contained different potential political meanings: and if, in the hands of political theorists such as Milton and Locke and Bayle, it led away from persecution, that is because it was mediated by a process of political analysis. What, then, was this process? II The central importance of Locke’s thought to this question needs no demonstration. In Locke we have an acknowledged founder of liberalism, clearly a Protestant (however unclear what kind, exactly, he was),17 and the propounder of a famous argument that looks very much like the thesis sketched above – that is, a thesis that seems clearly to connect liberalism with a specific religious doctrine. In fact, a recent commentator simply terms it a ‘Protestant’ argument, because it lays so much stress on the sincerity of belief.18 We must live by our own critical conscience, according to this reading of Locke: above all, individuals must be justified to themselves, and in such a view of religious belief neither community nor tradition plays any role at all. We are asked to enter an entirely individualistic moral and spiritual world in which shared belief counts for nothing: and if this is Locke’s starting-point, then as noted above the conclusions that he reaches will have very limited global appeal. But there are strong reasons to believe that Locke should not be

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approached as an atomist. He was, on the contrary, a theorist deeply concerned about the group dynamics that affect belief. His major epistemological work, the Essay Concerning Human Understanding, gives full weight to this. Attacking the idea that the mind contains ‘innate principles,’ he claims that the mind of a ‘young savage,’ unaffected by civilization, is filled ‘according to the fashion of his tribe.’19 The idea of innateness arises because we suppose that the men of our ‘party’ have ‘right reason’ and therefore represent the (true) judgment of all mankind:20 but this supposition arises because our minds are swayed by ‘the consent of our neighbours,’ or at least by those among them ‘of whose wisdom, knowledge and piety [we] have an opinion.’21 We find it hard to let our judgment stand alone. ‘Who is there, hardy enough to contend with the reproach, which is every where prepared for those, who dare venture to dissent from the received opinions of their country or party?’22 ‘Shame’ and fear of our ‘neighbour’s censure’ powerfully affect us.23 ‘Some (and those the most) [take] things upon trust,’ accepting ‘the dictates and dominion of others.’24 Sometimes, of course, Locke’s attitude to such facts is a critical one. Although people generally pin their faith upon ‘the opinion of others ... there cannot be a more dangerous thing to rely on.’25 He assails ‘the received opinions, either of our friends, or party; neighbourhood, or country.’ There is ‘not an opinion so absurd’ that has not been based on such grounds.26 But how rigorous does our inquiry into religious belief have to be? Locke insists that the standard be set at a reasonable level. Erroneous beliefs may arise, he says, from want of proof. Proofs are wanting whenever men ‘have not the convenience, or opportunity, to make experiments and observations themselves.’ But ‘the greatest part of mankind’ are in this position, because their lives are taken up by labour. They are thus doomed to ‘invincible ignorance,’ having no opportunity to conduct ‘learned and laborious enquiries.’ So does this mean that the greatest part of mankind is to be saved or damned on the basis of an accident of birth – ‘shall a poor countryman be eternally happy, for having the chance to be born in Italy; or a day-labourer to be unavoidably lost, because he had the ill luck to be born in England?’ That cannot be; it must be that God has endowed them with capacities that are sufficient to the task that is required – which, by inference, cannot be ‘laborious.’27 Locke defends an attainable standard of inquiry in his writings on toleration too, rejecting any claim that salvation can rest on ‘intricate matters that exceed the capacity of ordinary understandings.’28 And his

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defence plays a crucial role in the elaboration of his view, for here there is a most interesting reversal of stereotypes. In his reply to Locke’s Letter Concerning Toleration, Jonas Proast revives an argument for religious compulsion that had been developed many centuries before by St Augustine. Locke had advanced his famous argument about the recalcitrance of belief to coercion: coercion, he had argued, can affect our voluntary actions, but not our beliefs, which are not voluntarily adopted, resting as they do upon evidence (as we see it). But Proast objects that coercion can affect beliefs ‘indirectly, and at a distance,’ for it can compel such things as church attendance; and once people are in the church, they can be given reasons that provoke ‘consideration.’29 In his lengthy replies to Proast, Locke develops several counter-objections, one being that dissenters may already have ‘considered,’ another that members of the established church may not have ‘considered’ (yet are to escape penalty) – but the third is precisely that it sets the standard of inquiry too high. He returns to the figure of the hard-pressed labourer: would you have every poor peasant and artisan examine thoroughly every matter of controversy, he asks – if so, they must abandon their work, and leave their families to starve.30 The same point is made in The Reasonableness of Christianity: since ‘the greatest part of humanity want leisure or capacity for demonstration,’ it follows that ‘they cannot know, therefore they must believe.’31 Among many relevant passages in Locke’s Letters on toleration, let me focus on just one, in the Third Letter. Locke confronts Proast’s implied claim that there is a single standard of reasonable ‘consideration’ that we can bring people up to: such a standard, he objects, is ruled out by ‘the tempers of men’s minds; the principles settled there by time and education, beyond the power of the man himself to alter them; the different capacities of men’s understandings, and the strange ideas they are often filled with.’ He adds to this list another factor, that of trust: you cannot convince people of matters of plain fact, he says, if other people whom they have confidence in deny them.32 To be sure, to trust in some rather than others is a matter of prejudice. But you cannot suppose that prejudice undermines the sincerity of faith. Many Turks practise their religion sincerely, and their belief is no more a prejudice among them than it is among Christians, who accept Scripture as the word of God; ‘it would shake a great many Christians in their religion, if they should lay by that prejudice, and suspend their judgment of it, until they had made it out to themselves with evidence sufficient to convince one who is not prejudiced in favour of it.’ We must allow people, Locke continues, to

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rely on the knowledge and judgment of those whom they revere and admire.33 It is plainly wrong, then, to suppose that Locke held a view of commitment that demanded profound personal inquiry, for as he saw the matter he was engaged precisely in defending a realistic view of what could be expected against coercively supported demands for ‘consideration.’ His is a view that acknowledges the force of ‘company’ and ‘custom,’ ‘trust’ and the influence of ‘neighbours.’ And it is Locke’s most persistent critic who (quite unrealistically, in Locke’s own view) raises the bar of inquiry, in order to justify the policy of compelling church attendance. In that sense, it is the persecutor who is more ‘Protestant,’ so to speak, in his demands. It is true that one might not easily derive Locke’s position from his original Letter, with its well-known stress on ‘light and evidence’ and personal responsibility. Those themes, one might think, do not square easily with the acceptance of (at least a good measure of) trust as the basis of belief. But the reason is simple. The Letter is, explicitly, about the attempt to change belief: ‘only light and evidence,’ Locke writes, ‘can work a change in men’s opinions.’34 It sets out to resist attempts by the state to apply penalties to people with already-formed beliefs of which the state’s rulers disapprove. Against these attempts, the Letter argues that the state has no commission to penalize them, for no reasonable person would want a state to punish them on such grounds; that attempts to change belief by those means are futile, and will lead to hypocritical observance; that the state is no more likely than any of its subjects to know what the true doctrine is. None of these arguments imply that religious belief is or even ought to be founded on personal inquiry alone. They leave the question of the original basis of belief quite open – and as we have seen, what Locke thought about that matter is very different from what is held, by some later commentators, to ground the idea of toleration. Now above, Locke’s more minatory remarks about consideration and inquiry were rather brushed aside. There can be no denying that he insisted there were ‘things that every man ought to enquire into himself, and by meditation, study, search, and his own endeavours, attain the knowledge of.’35 Just how we should square such views with other remarks, such as those quoted above, is an important question for Locke scholarship. But there is a distinction to be made between our best assessment of Locke’s view of how we should live and what he believes can be politically required of us. Wherever he set the bar in terms of the rigour of conscientious inquiry – and whether or not we can quite

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confidently tell where, exactly, he set it – his argument for toleration does not require any particular level of rigour. What it tells us is, first, that the state has no reason to suppose that those who dissent from its favoured view have failed any (plausible) test of rigour, and, second, that in attempting to compel ‘consideration’ the state sets itself the absurd task of measuring appropriate levels of rigour in individual judgment. Apart from the absurdity, setting any particular level of rigour will be more demanding than a policy of toleration requires, and in that sense, as noted above, a ‘Protestant’ (or rigorist) argument does not go where it is thought to go at all, but in the opposite direction entirely. III But all the same, Locke does undeniably place great weight on the importance of conscience.36 That emphasis is obviously essential to one of the main arguments of the Letter Concerning Toleration – that the imposition of religious practice will lead to insincerity and hypocrisy: for that argument acquires its edge from the background premise that insincere belief (even if it happens to be true) is unpleasing to God. There seems to be nothing especially ‘Protestant’ about such a view – who, after all, approves of insincere belief, or believes that God is satisfied with it? – though perhaps one might accept that it is ‘Protestant’ to place great weight upon it (rather than upon, say, ritual observance) and that its central place in Locke’s account is therefore evidence for the interpretation that is criticized here. I want to deny even this, however, because the view acquires its importance for Locke not as a point of religious doctrine, but as a component of an essentially political argument, one that makes sense in the context of the geopolitical situation of Protestant minorities in the countries of post-Reformation Europe. One of Locke’s main (and much-criticized) contentions in the Letter is that coercion cannot change belief. As we have seen, this confronts the objection (made by critics in Locke’s time and in ours) that while coercion cannot change belief in the manner attacked by Locke – that is, by direct persecution, the threat of ‘fire and sword’ – it can change belief when ‘indirectly’ applied in order to compel dissenters to listen to the evidence for the true doctrine. That objection, while powerful,37 is not fatal to the whole ensemble of arguments in Locke’s Letter, for even there he had noted in advance a fall-back position. Even conceding that ‘the rigour of laws’ might (in one way or another) convince people of the state-favoured doctrine, that would not advance salvation, for there is no

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reason to suppose that the doctrine favoured by the state (or by the particular church that is favoured by the state) is actually true. Here, however, Proast has a still more damaging objection, which is, simply, that the state in question just happens to favour a church that is in possession of true doctrine. This further claim is surely not one that should surprise a defender of toleration: for while it is not necessarily the case that persecutors believe in the truth of their doctrine (maybe they just want to win), they quite often do. So Locke’s argument might well seem to be in trouble – it fails to challenge either the persecutors’ methods or their justification for them. In reply, though, Locke gives a new turn to the argument. He turns from claims about what states can do to considerations about whether what can be done by states is beneficial, from a standpoint that he takes to be shared with his critic. Would it advance the true religion? What Proast offers, Locke objects, works for one country only – that is, England. If states have not only the power to change beliefs, but also the entitlement to do so, then that will tend to promote the true religion, on Proast’s own argument, only in that one country that Proast believes to have been favoured by true doctrine. Elsewhere, entitling states to promote their religions will of course tend to promote false religions as well as preventing the spread of the true religion among their populations; and we cannot suppose this to be pleasing to God or to advance God’s work. Proast, Locke remarks, has narrowed his thoughts to his own age and country, not recognizing that ‘if in Italy, Spain, Portugal ... France ... and in other parts those severities that are used to keep or force men to the national religion, were taken away; and instead thereof the toleration [I propose] were set up, the true religion would be a gainer by it.’38 But Proast, in his second critique, introduces another argument. It was never his claim, he says, that any state could impose whatever religion it happened to believe in: only that the state that happened to possess the true religion could (and must) impose it; and so, he argues, his policy will not have the destructive global effects that Locke attributes to it, for it does not license foreign sovereigns to do anything at all – when they impose religion, they commit crimes which Proast’s doctrine is very far from justifying.39 And it is here that the topic of conscience becomes crucial, for Locke, in his further reply, points out that the political consequences of ‘impose your religion’ and of ‘impose the true religion’ are indistinguishable, if (as he supposes, and as he supposes Proast must agree) rulers must follow their own convictions as to what the true religion is: ‘if ... it be the magistrate’s duty to use force to bring men to

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the true religion, it can only be to that religion which he believes to be true.’40 More strongly, ‘If it be your magistrate’s duty to use force for the promoting the religion he believes to be true, it will be every magistrate’s duty to use force for the promoting what he believes to be the true, and he sins if he does not receive and promote it as if it were true.’41 Locke quotes a contemporary authority: ‘Where a man is mistaken in his judgment, even in that case it is always a sin to act against it. Though we should take that for a duty which is really a sin, yet for so long as we are thus persuaded, it will be highly criminal in us to act in contradiction to this persuasion.’42 (Compare Milton: he who believes ‘things only because his Pastor says so, or the assembly so determine, though his belief be true, yet the very truth he holds becomes his heresy.’43) So the conformist policy will, after all, require the imposition of false religions, and thus do more harm than good. Conscience, then, is as important to the argument as the ‘Protestant’ theory of toleration makes it out to be, but for quite different reasons. It is important not because it sets high standards of personal inquiry – Locke accepts ‘reasonable’ ones, as we have seen – but because, if followed without question, it would necessitate a world regime of universal persecution, just because it compels us to act according to our beliefs. And that should give us reasons to reject its political supremacy, if we accept merely that a basic duty to ‘preserve mankind’ has a place in our obligations, as Locke maintains (see the Second Treatise, s.6);44 and that duty is derived not from any demands specifically due to Protestant theology but from the belief (however grounded) that recognizing our shared humanity gives us a reason not to engage in a politics of mutual destruction. IV Conscience leads us to mutual destruction when allied with zeal; zealots systematically prefer their own, and conscientious zealots are bound, not merely permitted, to use whatever powers they have to promote their own cause. This chapter began by noting the fact that zealous selfpreference plays a crucial role in launching the arguments of both the Second Treatise and the Letter Concerning Toleration. In the Second Treatise, as is well known, the political problem is initially set by the fact that, while the law of nature is known, in enforcing it ‘men [are] partial to themselves and their friends’ (s.13), a fact which precisely calls for the remedies of political society (ss. 124–6). But in the Letter, too, the starting-point

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is the malign fact of partisan zeal. Much of the commentary on the Letter has concentrated on unpicking and evaluating the three famous arguments that, Locke believes, require us to distinguish and separate church and state. But what sets up these arguments is a preliminary assault on partisanship. Persecution, Locke writes, is plainly motivated by the search for ‘power and empire,’ for we never observe the persecutors ‘correcting, in the same manner, their friends and familiar acquaintance’ for their manifest sins – they are ‘cruel and implacable toward those that differ from [them] in opinion,’ but ‘indulgent’ to their co-religionists’ iniquities. They aim, not at the kingdom of God, but at the control of earthly kingdoms, and their main desire is to have ‘a numerous assembly’ joined with them. Of course, these hidden motives cannot be avowed, and so rationalizations will have to be evolved: and then the better-known argument of the Letter begins, as a pre-emptive strike against the rationalizing of partisan ambition. Again, in the polemic with Proast, Locke plays the partisanship card at length, and elaborately, accusing Proast of wanting to impose upon dissenters standards of reflective ‘consideration’ that it never crosses his mind to impose upon members of his own church; and the critique of ‘partisanship,’ deployed in the very first pages of the original Letter, is never far from the surface in Locke’s later defences of its argument. (His Second Letter, for example, ends with the following little acerbity: I request, he says, that ‘if ever you write again, about “the means of bringing souls to salvation,” which certainly is the best design anyone can employ his pen in, you would take care not to prejudice so good a cause, as to make it look as if you writ for a party.’)45 But the tension here is that partiality plays a deep and essential role in Locke’s idea of religious faith. We have already seen the importance of ‘trust’ and ‘reverence’ to faith, and thus, implicitly, the role of community. Even beyond that, there is a powerful connection between partiality and basic identification. It may seem to be something of a paradox that Locke’s theory of toleration should give so central a place to the topic of ‘indifferent things.’ These are features of worship or of the conduct of life that, in Locke’s minimalist view,46 are wholly unimportant to salvation. But the problem of toleration arises just because his minimalism is not widely shared, and different groups attach crucial importance to formal aspects of worship or conduct. We have – a still under-explored topic in Locke – different ‘tempers’ or predispositions which convince us that one or other mode of worship is right. And of course, once we are convinced (reasonably or otherwise), our conviction, on Locke’s argument, demands respect. And Locke expresses the formation of convic-

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tion in terms of a desire for company: we want either to keep, or avoid, the company of ‘travellers that are less grave, and others that are more sour than they ought to be.’ In the last resort such preferences between Low and High worship are ‘frivolous,’ but harmless if not accompanied by superstition or hypocrisy. Frivolous or not, such preferences effectively constitute the political problem, for the fact of being shared and thus of constituting a valued identity gives them a weight quite independent of their rational basis. Moreover, the last-named requirement, nonhypocrisy, may turn out to be surprisingly strong: for it amounts to saying that sincerely held beliefs, however grounded, count for something. And such beliefs, arising from shared tempers or dispositions, are the basis for ‘company’ and thus for pluralism. So if pluralism is inescapable, we return to the political problem posed by conscience: unless political power can be constitutionally distanced from the requirements of belief, our shared condition will be one of conscientiously required civil war. V The importance of this argument is reinforced by its virtually exact parallel in Pierre Bayle. Locke and Bayle may never have met. Their epistemological starting-points are different.47 But their political experiences, and their experiences of exile, had something in common, and that may explain something about their remarkably similar conclusions. Like Locke, Bayle, in his Philosophical Commentary, notes the ‘inwardness’ of belief, its relation to ‘internal acts of the mind.’48 Outward forms of worship, unaccompanied by such internal acts, mean nothing; ‘for if we conceive that an earthly king would not look upon the falling down of a statue in his presence, either by chance, or by a violent blast of wind, as homage to his person ... by a much stronger reason ought we to believe, that God, who judges of all things by their real worth, receives not as an act of worship and submission what’s only performed to him in outward shew.’ But this is not, as it stands, the point on which his critique turns; nor is it a position that the persecutors (‘Convertists’) want to deny, for all that divides them from tolerationists is a view about what can lead to this inward state. Bayle challenges that view, indeed: he argues that offering inducements to conform is very likely to bring into play ‘passions’ that cloud the judgment.49 But no more than in Locke’s case is that an effective point against adversaries who could easily retort that such concerns are swept aside by the manifest superiority of their own reasons, and that after material inducements have done the merely

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preparatory work of getting people to listen, it is what they actually hear that will change their minds for them. What gives the point about conscience its edge, in Bayle’s argument, is twofold. First, as in Locke, but much more systematically and exhaustively, it is combined with a set of considerations about the conscientious duties of heretics. If we suppose that all people, including rulers, must judge according to their inward light, and if we also suppose that rulers must impose on their subjects what they take to be the true religion, then it follows that heretical rulers have a duty to impose their mistaken faith. With a certain élan, Bayle pursues many analogies. Suppose you were a woman deceived by an impostor into thinking that he was your husband? Suppose you were an illegitimate child who believed that your legal father was your natural father? How should you behave to the person about whom you have mistaken beliefs? Bayle is quite clear. It would be wrong, a sin, not to behave as one should to a person to whom one believes oneself, even mistakenly, to have duties. The woman should perform what she takes to be her duties to the impostor, the child should perform to his supposed father what he takes to be his duties to his real father. It follows that a heretic or infidel king would sin in failing to impose what he took to be the true religion on his subjects, if he were right to believe that the true religion was to be imposed. Since this reduces to manifest absurdity, we cannot suppose it to be commanded by God, and we must reject the ‘convertist’ premise. Very much as in Locke, the argument from conscience acquires its main political point in conjunction with empirical facts about the diversity of belief. Second, the policy of persecution is simply inconsistent with the ordinary processes of practical reasoning that inform ‘inward acts of the mind,’ and so to adopt the policy is simply inconsistent with being a reasoning agent. It cannot express the considered use of one’s own judgment. Here the Philosophical Commentary is rich in examples, many of which are similar to Locke’s. Just as Locke mocks the futility of basing a right to persecute on the claim to be orthodox, for ‘every church is orthodox unto itself,’ so too Bayle mocks ‘echoing to our adversary’s words, and pleading “I am right and you are wrong,” in answer to his saying “he is right and we are wrong,”’ as ‘mere childish play, tossing the same ball backwards and forwards.’50 But it is not merely childish, it is violently destructive, licensing everyone – including our adversaries – to use any means and to abandon every normal moral scruple in order to strike at those with whom we disagree; and it is still more destructive to claim that this is not merely sanctioned, but required, by conscience,

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for if God has commanded us to strike down his enemies, all we can do is use our own best judgment in determining who his enemies are. Bayle’s reliance upon conscience may seem to evoke a problem that was later termed ‘the paradox of toleration,’51 the (alleged) paradox being that, logically, no conscientious scruples can stand in the way of a strongly conscientious desire to persecute: how can conscience stand in the way of conscience? This is, Bayle writes, ‘The most perplexing difficulty that can be proposed to me.’52 What can we say to convertists who feel conscientiously bound to persecute? Bayle’s answer to this essentially recapitulates the whole argument of Philosophical Commentary. To claim to be conscientiously bound to persecute is to ‘tread under foot a thousand ideas of reason, and equity, and humanity, which present daily before our eyes.’53 This violent suspension of reason, the results of which are systematically catalogued throughout the book, is necessarily accompanied by ‘passions of hatred and wrath’ that persecution always involves, passions that prevent natural light from reaching our judgments. We cannot suppose God to have commanded us, in the gnomic words that provide the text for Bayle’s book, to adopt a policy that tends to the suspension of our reason and to the destruction of human life; and we cannot suppose ourselves conscientiously bound to do what our reason tells us to be wrong, for the conscientious person will want to do what is right, according to the ‘natural light’ that has been implanted in us. What Bayle terms ‘natural light’ is above all an antidote to partiality. The persecutors’ error is to fail to admit that others can make claims upon the same grounds as they can. Rather as in some more familiar passages of Locke’s Second Treatise, the problem is a standing temptation to see things from the point of view of our own and our friends’ interests, and to resist abstracting from these to reach a judgment that can be impartially adopted. Most interestingly, Bayle, although (unlike Locke) uncommitted to any contractualist approach, also sees clearly the link between toleration and a moral requirement of cosmopolitan abstraction. Because passion and prejudice obscure our understanding, Bayle advises us to ‘consider our ideas in the general, and as abstracted from all private interest, and from the customs of [our] country.’ In order to achieve this, we must expose our favoured practices to the following test: ‘Whether, might the question now be put for introducing it in a country where it never was in vogue, and where it were left to our choice to admit or reject it; whether, I say, we should find upon a sober inquiry, that it’s reasonable enough to merit our suffrage and approbation.’54 Like Locke, Bayle develops his argument against an adversary who

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believes that a straight road leads, without any kind of mediation, from being right in one’s beliefs to having a right to impose them. Pierre Jurieu, an intellectual leader of the Huguenots in exile in Holland, advocated the persecution of Catholics by Protestant states.55 The persecution of Protestants by Catholic states was wrong simply because Catholicism was a false doctrine. The Philosophical Commentary is aimed directly against this view, as we have seen. Jurieu’s implied principle, ‘True religion must be imposed,’ is one on which churches can agree ‘in the principle, but not in the application.’56 This point – later to be analysed under the heading of ‘non-neutral principles’57 – is one that Bayle clearly shares with Locke. But it overlaps with another consideration. The policies of Protestants towards Catholics are very likely to affect the behaviour of Catholic states towards their Protestant minorities; and in particular, if the Huguenot exiles adopted Jurieu’s doctrines, it would be the worse for the Protestants remaining in France, and prevent any hope of a change in French policy towards them. It is not then – or not only – a matter of adopting a position that can be credibly generalized at the level of principle and of application; it is a matter of avoiding positions that are likely to have devastating consequences for one’s co-religionists elsewhere. ‘It’s very plain, that the stronger the arguments be which persecutors bring to prove that God enjoins constraint, the smarter rods they furnish their adversaries to scourge themselves in another place. Each party will engross the proofs, the command, the rights of truth; and authorize its proceedings by every thing which the really true religion can offer in its own behalf.’58 VI We need, however, to look much more closely at the mechanism at work here in linking conscience, diversity, and toleration. One natural way of seeing the mechanism, initially, is in terms of prudential reasoning. If we persecute our minorities, their co-religionists will persecute our coreligionists when they can – we prepare ‘smarter rods’ in ‘another place.’ John Kilcullen, in his book on Arnauld and Bayle, calls considerations of this kind ‘reciprocity arguments.’59 They are arguments not just about what principles would license the other to do, but about what principles might cause the other to do, if we adopted them. As Kilcullen points out, arguments of this kind are of limited reach. For example, they do not work to protect non-persecuting religions, for it is only the fear that others will persecute that restrains us from persecuting – so paradoxi-

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cally, they do not protect the least offensive religions. Nor do they work to protect religious minorities whose co-religionists have no power anywhere; for example, Protestant groups before the Reformation, or Jews before 1948 (or Quaker or Ba’hai or Theosophist groups now, one might add, since those groups control no states that would enable them to persecute, even if they wished to). Limited and calculating though they are, however, such considerations, Kilcullen suggests, may have provided the starting-point for the more generalized and unconditional principles of fairness which now form the basis of common political morality. Most interestingly, he suggests that the shape that principles of liberal toleration now take, with the gradations of protection that they offer to various kinds and levels of behaviour, are best understood as the result that would have emerged from a series of reciprocal agreements among the governments of multifaith societies.60 I would like to add two further suggestions to Kilcullen’s account. The first is that reciprocity arguments, for all their limitations, may in one respect have the edge on pure moral generalization arguments. ‘What if everyone did it?’ is, notoriously, a question that will not move the rational egoist; for, after all, if everyone does it, I might as well do it too, while if the others refrain from doing it, I can safely free-ride on their self-restraint. The egoist remains unmotivated on either possible factual assumption. Besides, and equally notoriously, its force rests entirely on the definition of what ‘it’ is, a definition that is generally contestable; and as we have seen, Proast and Jurieu can evade it by claiming that what they are doing (imposing true religion) is not what the other side are doing (imposing false religion). But reciprocity considerations, when they work, expose even the egoist, and the fanatic, to at least the beginning of the kind of abstracting mental procedure that Bayle and Locke regard as essential. Second, international reciprocity arguments bring into play a kind of elementary altruism. It is not, after all, the English Calvinists who will suffer if the French state persecutes Protestants – they will not literally ‘scourge themselves’; it is the Huguenot who will suffer; and for English Calvinists to see the Huguenot’s suffering as a consideration, they must already have adopted an identification that goes beyond self-interest – they must see others, whose immediate fate they do not share, as part of us – a transnational ‘us.’ Concerns about vulnerable co-religionists abroad, then, may have played a crucially important part in that bridging between prudence and principle61 that the history of toleration represents; it is plausible to see them as a powerful factor in bringing into play the process of moral abstraction that even-

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tually undermines the moral self-sufficiency of the national state. Transnational identifications do not lead directly to cosmopolitan ethics, but they can open the door to them, by motivating a larger-than-national canvas of concern.62 But the central idea here belongs, not to prudence, but to political morality itself; its core is the overcoming of partiality, an issue that, as we have seen, engages both Locke and Bayle. And in Locke’s case, it brings us back directly to our initial topic, his sense of the pervasiveness of group dynamics in our lives. Not only do groups control our judgments, they guide our preferences too, making natural partisans of us all.63 The ‘savage’ of the Essay, whose mind is filled by ‘fashion’; the propertyowner of the Second Treatise, who is carried away – beyond reason – in his desire to revenge his ‘friend’; the zealot of the Letter Concerning Toleration, who is so sensitive to the faults of ‘others’ and so blind to the faults of his ‘own’; the student, in the Third Letter, who prefers his friend’s arithmetical answer to the true one; the labourer, in The Reasonableness of Christianity, who can rely only on his ‘trust’ in others’ knowledge; the pamphleteer who ‘writes for a party’ – all these figures, however different, exemplify the power of group attachment in our lives. It is an essential project of Locke’s political theory to acknowledge and contain this power – perhaps even his theory’s defining project. Samuel Scheffler has carefully discussed some of the moral issues arising from group membership.64 It is simply inherent in what we mean by group belonging that we should acquire special responsibilities to other members of our group, owing them something that we do not owe to people in general. But this may seem to involve a double sort of unfairness. Not only do co-members receive the benefits of special consideration which non-members do not get, but also the obligations that members would ordinarily have to non-members diminish in saliency, and the resources available to meet them diminish too.65 The first kind of unfairness (if indeed it is unfair) is inevitable, and anyway is mitigated by the fact that the extra consideration received by each member carries with it extra obligations too – so the extra consideration does not come free. But the second kind of unfairness obviously needs to be contained at some point, if it is not to violate what we may term baseline expectations. We can see these considerations at work in Locke’s contrast between what he terms ‘neighbourhood’ and ‘commonwealth.’66 He does not explain the contrast, but it is not hard to fill it in. ‘Neighbourhood’ refers to people coexisting by relying on the ordinary, natural, and

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uncorrected operations of their reason, which, as he says in the Essay, is naturally fitted to that scale.67 It does not work, the Second Treatise tells us, because the operation of reason is inhibited by our natural partiality. We want to give preferential treatment to those who are familiar and whom we trust, and so the law of nature – which is a law of equality – is corrupted; a ‘commonwealth,’ with institutions capable of rendering impartial judgments, is the solution. That is, of course, a very familiar story in capsule form. But Locke’s writings on toleration, I believe, extend and deepen it in at least three ways. First, they show how seriously Locke took his psychology of group membership; from the very beginning of the Letter Concerning Toleration, Locke tells us how deeply the spirit of ‘party’ bites into our judgments. It does not just distort them, it can render them totally irrational, perhaps even sadistic: so emphatically do we distinguish between friends and others, that our preference for the former can lead to the most hideous mistreatment of the latter, and to a complete capitulation of reason to irrational zealotry. In subsequent exchanges with Proast, Locke’s sensitivity to issues of preference and privilege is razor-sharp; it provides, in fact, what is perhaps the guiding thought of the long Second Letter, in which he argues that Proast’s conformist policy effectively privileges Anglicans and penalizes dissenters under the thin veil of a justification that makes no rational sense at all when closely examined. Second, Locke’s discussion of ‘churches’ provides a clear and relevant example: for what is a church but a kind of ‘neighbourhood’?68 It embodies (at its best) mutual familiarity, shared activity, trust in others, and confidence in authority. Such things are inseparable, Locke believes, from religious faith; we must, as we have seen, accept the opinions of others as authoritative for them, and we must also, he says, choose our co-religionists on the basis of shared tempers and intuitions, things that play a pivotal role in Locke’s understanding of religious difference. A church, then, is the proper and valuable expression of neighbourliness; and neighbourly tendencies towards preferential treatment are quite acceptable as long as the ‘neighbourhood’ cannot deprive non-neighbours of baseline expectations. So the distinction between neighbourhood and commonwealth is exactly paralleled by the series of distinctions drawn between church and state in the Letter; between institutions that can discriminate on the basis of shared preferences but which have no coercive power, and institutions that do have coercive power but have no authority to discriminate preferentially. The third consideration, however, may have the most general impor-

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tance. In the Second Treatise, Locke makes a fairly straightforward appeal to interest. Developing his contractual test for political legitimacy, he asks us – taking ourselves to be what we are – to consider whether or not we would find it reasonable to agree to particular state powers. We are asked to imagine only that, counterfactually, we had a choice about the matter; we are not asked to imagine, counterfactually, what we would think if we were someone else (or no one in particular). On this basis, appealing to the principle that ‘no rational creature can be supposed to change his condition with an intention to be worse’ (s. 131), he builds a case against absolute monarchy, under which no one would have the security that all rational creatures want. But the case for religious toleration takes counterfactual thinking one level further. When Locke argues, apparently on contractualist grounds, that we would not give a magistrate ‘commission’ to impose a state religion, he must be supposing that we can abstract from our religious beliefs in making political judgments of this kind; for otherwise, a religious majority would have no reason not to commission a magistrate to impose the religion that they favoured, knowing that they would have final authority in the state to be constituted (as well as a final voice in any revolutionary reconstitution of it, following the majoritarian logic of the Second Treatise). The case of religion, then, drives Locke significantly further in the veil-of-ignorance direction, in order to dislodge the effects of group self-preference. It leads him to say that, in considering the (just) basic structure of a state – the scope of its authority, the powers and rights that it distributes – we must put out of our minds the provisions that our own religion would dictate. For it is only in (implicitly) lending our support to a universally just system of states that we can secure just treatment for ourselves in our own. We must distinguish this idea from the very different idea that we must put out of our minds the provisions of our religion in politics. Locke never believed that we should do so, or even try to. He believed that the state should promote the moral reformation of its subjects69 – here he is quite unlike many later liberals. His own views of public policy – including his well-known and quite harsh approach to poverty – were deeply coloured by his religious ideas of personal responsibility: here, indeed, he was a ‘Protestant’ à la Weber. Locke would have denied that the spiritual and the political could be separated by walls of fire; how we behave in politics must be affected by our deepest beliefs, for otherwise our behaviour is morally arbitrary and shallow. But in this discussion I have focused on constitutional beliefs, not on political behaviour – that is, I have focused on Locke’s view of the basic rules that limit what can be

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done in politics. According to Locke, our political behaviour – whatever inspires and motivates it – must be contained within a constitutional framework. That is not because of a theological view that individual conscience has inviolable rights (although it may have the effect of protecting individuals). It is because of two reasons that undermine the view of Protestant thinking that is questioned here. First, conscience comes into play as a political problem: the stronger its claims, the more it licenses sub-communities to destroy each other when they can, and the more, therefore, we must set limits to what it demands. Its implications are not directly theological but are mediated by the political circumstances of religious minorities in post-Reformation Europe, which magnified the vulnerability of each group to each other group under conditions of interspersion. Second, I have tried to show that something quite different from conscience comes into play, something that a stereotypical (and unhistorical) idea of ‘Protestantism’ tends to drive out of the picture. That is the idea of partiality or group preference, a sentiment that is as much a part of Protestant history as of the history of any other sect or movement or party. Locke’s view is that the demands of partiality and the demands of political legitimacy are constantly in tension. We have a powerful tendency to identify together the party that we favour and the polity to which we belong, so that the powers of the latter become available to the former. A constitution is a brake on this tendency; and a brake is needed because the claims that we can make on cocitizens are much less complete than the claims that co-believers can make upon each other. How could this not be so? How could it not be that obligations arising from one’s place of birth are less wholly binding than obligations arising from belief? Locke’s liberalism does not at all exclude culture, shared faith, or community; on the contrary, recognizing the overwhelmingly powerful force of culture, shared faith, and community, it tries to shelter the more limited claims of politics from it. Its importance, then, is not confined to ‘Protestant’ cultures as they are currently understood; and whatever criticisms it invites, that it depends on a particular kind of individualistic religious spirit should not be among them. On the contrary, it depends on concern both for and about the power of group attachment in our lives. VII The argument outlined above may seem to pose something of an interpretative paradox. On the one hand, it speaks clearly in favour of what is

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termed the ‘contextualist’ position, that is, the view that there is no eternal or trans-historical reason why we have the kind of political theory that we do. The trend of thinking that stems from Locke, and in some respects from Bayle too, has its origins (it was argued above) in the quite specific historical circumstances of the interspersion of religious minorities among European states. But those very circumstances led political thought itself in a decontextualizing direction; that is, at a certain point it became intelligible, or even necessary, to raise counterfactual questions that would otherwise have been entirely idle. ‘Suppose I were not who I am?’ is of course both a forbidding and a distracting question to tackle if wholly unmotivated, but it becomes an inescapable one if we suppose that it was approached in stages. Suppose I were a Calvinist, not in England or Holland but in France? Suppose I were not a Calvinist, but some other kind of Protestant? Suppose I were a member, not of a Catholic majority, but of a Catholic minority? Suppose I were not a Protestant subject, but a Catholic ruler? Suppose I were a Christian, of any kind, in China or Africa? Eventually, extending the scope of the questions, we arrive, of course, at the Rawlsian question: suppose I did not know anything about myself? (And the Rawlsian question may, of course, have to be taken rather further than Rawls himself did.)70 There is a straight line from Locke’s counterfactualizing, and Bayle’s even more exuberant version of it – suppose you took the wrong man to be your husband? Or your father? Suppose you were an emperor in Asia? – to the stringently careful counterfactualizing of political theory after Rawls. Now the origin of the question cannot, of course, determine anything about its importance or about the rightness of this or that answer to it. But the question has entered so deeply into our tradition of theorizing that it may no longer be possible to imagine political thinking without it. To claim some advantage on the grounds that I simply am who I am, or that we are who we are, is to take up a position that may have made sense in the context of some pre-modern disposition of things, but which now imposes a strain that political discourse may be unable to bear, as a violation of basic discursive equality. In contemporary discourse, there are some deeply embedded assumptions: that an argument should begin with minimal premises that everyone is likely to share; that any principles adopted should be ones that will be interpreted in roughly similar, or at least not practically exclusive, ways; that particular cases should be evaluated in light of the general categories to which they belong; that principles should enjoy authority only to the extent that they are consistent with, and allow for, different basic ways of

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understanding the world and of assigning value to things.71 Now I have actually borrowed this list from a valuable discussion of ‘Rawlsianism’: but its elements are Lockean (or Baylean), and I take this to be evidence of the deep indebtedness of contemporary political theory to a matrix of issues that took form three centuries ago. It was the topic of toleration that led to such beliefs acquiring commonplace status, by overturning discursive monopolies, thus committing discourse to these basic restrictions. What may be particularly worth stressing, finally, is the way in which Locke’s defence of his argument requires him – much like Bayle – to set it in a cosmopolitan context, and to rest his case on considerations drawn from the global application of rival principles. Even in the original Letter, of course, he had said that ‘The civil power is every where the same,’ thus clearly implying that no claim to national privilege (such as the Anglicans’) could even get a foothold in political argument. And the central argument of the Second Treatise makes it plain that particular ‘commonwealths’ are in the last resort only local instruments of a law of nature, placeholders for cosmopolis, as it were. But the elaboration of his case for toleration brings the point home very directly. To arrive at the case for freedom among co-nationals, we have to engage explicitly in considerations that set nationality aside; civic freedom itself directs us towards the standpoint of humanity. That claim leads us to issues famously raised by the later work of Rawls, and it suggests that Rawls’s more cosmopolitan readers may find unexpected support in Locke’s political thought, since it engages us with the fate of the persecuted, not at the level of relations among already-agreed-to-be-sovereign states, but at the prior level of inquiry into what can ground sovereignty, morally speaking. It engages us with their fate, I have argued, because initially we are linked by partiality to the fate of our friends elsewhere, but then the fate of our friends elsewhere launches a general argument for our own and others’ freedom. The argument is ‘equal to all mankind.’72 To insist on seeing Locke as an atomic individualist is to miss the important ways in which his theory is set within a picture of a multi-levelled and associative world; and to see ‘conscience’ as a sort of emblem of atomic individualism is to miss altogether the (crucial, but only) mediating role that it plays in a theory of deep social embeddedness.

2 Why Is Rousseau Difficult?

Locke’s Second Treatise is a holy text for those who see politics as a matter of the protection and enforcement of rights. Political society is formed, as Locke says, for the more effective preservation of rights that we have by nature, rights which are for the most part retained in civil society, and to the extent that they are abandoned at all they remain under the ultimate protection of majority consent. Some see this as an impoverishment of politics, or even as its extinction; for it implies both that political society is no more than an instrument of generic human interests, and that no new obligations or attachments – no ‘emergent properties,’ beyond the properties of unassociated individuals – arise in the course of shared civic life. Sheldon Wolin, for example, in a still-influential text, associated Locke’s liberalism with ‘the decline of political philosophy,’1 for, he believed, it reduced politics to a purely instrumental and protective activity. Now Rousseau’s political thought may be seen as a nearperfect antidote to the view that some (rightly or wrongly) take of Locke: ‘It has become a commonplace criticism of Lockean liberal theory (from Rousseau on) that the liberal conception of the sovereign power of the state is anti-democratic and that liberalism’s conception of citizenship is passive rather than active.’2 Rousseau’s contrary view is expressed in the characteristically dramatic claim, in Social Contract, that every shred of rights is entirely surrendered to the sovereign people, and in the further even more dramatic claim that the founders of cities must ‘denature’ their citizens so that they redefine their identity in terms of their common civil membership (I.6, II.7).3 If the Second Treatise is the bible of the rights-based and instrumental view of politics regretted by theorists such as Wolin, then Social Contract is the bible of revivified citizenship, of the celebration of shared public life, and of ‘strong’ – not liberal, rights-

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constrained – democracy. It is the politics of participation, civic spirit, and of non-instrumental community: of the ‘republic.’ But Rousseau is (at most) only a near -perfect antidote because the republican theme, while powerful and vivid in his writings at times, is at other moments shrouded with so much doubt and even enigma. Social Contract is a deeply provocative text that temptingly invites but then instantly repels so many rival readings. In particular, of course, there is the inexhaustibly interesting puzzle of ‘the general will,’ the central concept of the whole structure of his political thought, but one which resists even determined successive attempts at discursive translation. An interpretive history of those (often ingenious) attempts would fill a large and valuable book. This chapter takes on the modest but still large enough task of trying to explain why it is so hard to translate what Rousseau says about the general will into more overt and consistent terms – into distinct propositions that admit examination. What the chapter claims is that Rousseau took on board more of a ‘Lockean’ project than his ‘republic’ could effectively accommodate (of course, both of the terms in quotes are very approximate); that his idea of a general will tried to fuse together several mutually exclusive pictures of human association – some intimate, some civic, some universal – by playing upon their common features, while hiding in the margin the elements that made them incompatible. Sometimes he wants us to see citizens as, basically, like friends, united by a common life; sometimes, he wants us to see citizens as, basically, like strangers, under the jurisdiction of an impersonal morality. To begin with, though, I want to give full weight to the important things that set Rousseau apart from Lockean political thought; without this, to stress what he nevertheless had in common with the natural law tradition would be artificial. Next, the specific importance of Stoic natural law is discussed, as a bridge to Rousseau’s oddly original version of republicanism; then I argue, however, that some features of his politics express a different and blunter version of republicanism that cannot be assimilated to any version of natural law at all. Finally, the chapter tries to explain how Rousseau’s kaleidoscope of associational images makes its presence felt in the concept of the general will, with chronically puzzling results for his idea of democratic society, of democratic procedure and of the political legitimacy arising from it. If these were results of Rousseau’s personal confusion only, they would be of very limited interest; but in fact they result from an effort to hold together basically competing views of association that few of us, I think, would be willing to reject out of

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hand, without a deeply uneasy fear that something of great importance was being lost. But all the same, we need to distinguish among them even if we value them all. I One of the things that has to be shed, in moving from Locke to Rousseau, is the idea that political thought can take place within a secure normative framework, termed ‘reason’ or ‘nature,’ which provides our thinking with a basis in a given, unconstructed order. The revolution that is brought about by Rousseau’s Discourse on Inequality is one that moves the starting-point of political thought from a normative order to a causal order: that is, it tells us that we have to begin the task of understanding politics not with an appeal to given foundational principles that our reason discloses to us, but with an attempt to grasp the causal influences – of a social-psychological kind – that have made us what we are. Although there is an order, of a kind, in our situation – that is, a set of limits and constraints that we cannot just wish away – it is not one in which our intentions or needs are reflected, or in which any kind of larger intelligible purpose can be found. (I regard the reference to divine purpose, near the beginning of the Discourse, as having nothing more than a deflecting role.) Our situation is composed of what Durkheim was later to call ‘social facts,’ that is, ‘ways of acting, thinking, and feeling, external to the individual, and endowed with a power of coercion.’4 The Discourse on Inequality outlines a pattern of social development brought about by a series of devastating effects that are discontinuous, qualitatively and quantitatively, with the human efforts from which they sprang. That pattern provides the basis for the Discourse’s tirade against the optimistic or rationalistic expectation that institutions will meet preexisting needs, rather in the way that instruments come to be contrived for human use; on the contrary, Rousseau maintains, institutions impose our ends upon us. The family, for example, is the effect of building shelters, not the reason for it; technology creates wants rather than satisfying them; above all, society itself creates sociability (of an evidently imperfect kind), rather than responding to natural sociable desires as Locke supposed. With such a picture, we seem very far indeed from any idea that a political society expresses and carries into effect a pre-existing normative order of the sort that natural law theorists believed in. ‘The philosophers’ (i.e. the natural law theorists) have fallen victim to a sort of retrospective illusion, ascribing to humans at the beginning of

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the civilizing process the developed moral beliefs that they were to have only at the end of it, and as its consequence. For this reason, while they have tried to describe human nature, they have all abjectly failed, and their views are literally preposterous. But that is not all, the Discourse on Inequality argues: not only does civilization express no pre-existing order or purpose; it does not produce one either. Within it, there are tensions and dissonances. In particular, there is the paradox of goodness and morality – the ‘Rousseauan moment,’ as it has been called.5 Natural humans, though of limited mental capacity, have ‘natural goodness’ in the double sense that they bear no malice and that they respond with compassion to others’ suffering. But they lack moral goodness, because they act spontaneously and without the awareness of choice. To become moral, they must acquire ‘general ideas’ permitting them to compare and contrast situations and thus to distinguish between right and wrong, and they must also acquire a regular social context, for without this, moral choices do not confront them. But the very same processes that stimulate and develop this moral sense prevent humans from successfully living by it; for the development of human powers carries with it the sophistication and extension of desires, and makes vanity the overriding motive of behaviour. This onslaught on ‘the [natural law] philosophers’ is intended above all to present humans as creatures that have no natural context, and who, to be understood, must be deprived of the comfortable but illusory contexts that ‘the philosophers’ have offered them. When we take away comforting illusions, we see humans as vacuous beings offering few points of access to moral argument and few mental materials upon which a moral order might be constructed. Yet Rousseau sets himself the task of transforming such beings into citizens and of assigning to them just those virtues whose foundations his own argument had radically undermined. II While the Discourse leaves us in no doubt as to the limitations of the natural human, he is described there in generally appreciative terms; in Social Contract, however, he is described brusquely as a ‘lazy and stupid creature’ awaiting transformation into ‘an intelligent being and a man,’ his intelligence and his humanity both depending on the acquisition of social membership (I.8). This transformation requires a universal: a conception of shared properties and ends that obliges him to see his actions in relation to the experiences and actions of others. He must

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learn, in Rousseau’s phrase, the ‘art of generalizing’6 – that is, the habit of seeing himself not as discrete or as privileged but in a typical light – and thus to make comparisons and parallels between what he does and what he is willing that others should do. This is an ‘art,’ or something acquired, for the same reason that language is acquired: the formation of ‘general ideas’ on which both language and morality depend is painfully protracted, and does not spring spontaneously from desire or from experience. But many possible sources for such a universal, as we have seen, had been ruled out by Rousseau’s own picture of human development. There could be no taking refuge in ontological order, in ‘the sacred precepts of the various religions’ or in any sort of immanent ends. We should, then, take seriously Rousseau’s ‘C’est de l’homme que j’ai à parler’:7 if any order is to be found, it must somehow be constructed out of ‘man’ and the relations of humans to one another. Now despite Rousseau’s attack on the natural law jurists, this project realigns him with them to some extent, for they too believed that a moral order could be generated out of the structure of human relations itself. That belief was crucial to their argument about political legitimacy. They rejected the view of the rival school of droit divin, which taught that the legitimacy of states rested upon divine ordination. While the boundaries of states are indeed determined by strictly secular factors (military, diplomatic, dynastic), the sovereignty of the state, or its right to demand obedience, rests upon divine will – as Bossuet put it, the king’s authority or ‘majesty’ was intelligible only as an image of the majesty of God.8 Against such claims, theorists of human right contended that the human origins of government provided a sufficient basis for its sovereignty, no further (divine) authorization or legitimation being required. No god is needed, as Grotius had said, to sustain those rules of ‘mutual aid and reciprocal service,’ perceived by human reason, that lead us to make and keep agreements.9 It is evidently this general kind of view that also underlies Rousseau’s proposal to argue from ‘the nature of man by the light of reason alone, and independently of the sacred dogmas that give sovereign authority the sanction of divine right.’10 Rousseau, however, took the further radical step – a novel one – of identifying not only the origins of sovereignty but also its actual exercise with the reason of the associated people;11 and it was this that led him from the time-honoured notion of general rules of conduct, sustained by human reason, to the notion of a general will enjoying legislative force. From a certain point of view, evidently, this may be seen not as a rejection but as a (selective) radicalization of natural law. So it is important to note what Rousseau could accept and what he

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could not accept in the argument from ‘human right.’ Diderot’s Encyclopaedia article on the topic is plainly much too blunt.12 With the Discourse on Inequality and its author in mind, he denounces as ‘mad’ or ‘evil’ the ‘violent reasoner’ who cannot grasp that there are principles of justice inherent in the relations of one human to another. That violent reasoning fails to comprehend that there is in each individual ‘a general will’ that is ‘a pure act of understanding that reasons in the silence of the passions about what man can demand of his fellow men and about what his fellow man can rightfully demand of him.’ Simply to reason, then, according to Diderot here, is to grasp the necessity of mutual obligation and to be led to claim for oneself only what can be consistently or legitimately granted to others. Now Rousseau has an objection to this claim. From the fact that I do not wish something generally to be done it does not follow that I ought not to do it: for while its being generally done would produce unacceptable consequences for everyone, including me, it is not the case that my doing it will produce significant consequences for anyone, let alone me. Moreover, even if I know that others’ doing it will be to my net benefit when set against the costs of my own compliance, my doing it will have a negligible effect on their decision to comply. Although ‘violent,’ Rousseau’s reasoning is surely quite satisfactory. It looks forward to modern theorists of rational choice.13 It looks backward to a French tradition of introspection and egoism that warns us to check all normative claims against what the self can actually accommodate.14 Uncorrected by the actual experience of social solidarity, the natural self will rebel against ‘Natural Right,’ saying (to such as Diderot) ‘I admit that I can see in this the rule that I can consult, but I do not yet see ... the reason for subjecting myself to this rule.’15 Rousseau’s objections are of a psychological kind, and relate to the conditions under which moral obligations can be acquired and motivated. As such, they involve no basic challenge to ‘the philosophers” view of the substance of moral obligation. What Diderot called a ‘universal motivation, which makes each part act for an end that is general and relative to the whole,’ is, in fact, to occupy a central place, and under the same name of the ‘general will,’ in the political model of Social Contract. Rousseau’s case for this model implicitly accepts that no argument can overcome the egoist’s view that he has no interest in acting as he would wish others to act, and rests on ‘new associations’16 which will practise upon the egoist a form of social therapy. True, there is no natural causal connection between the egoist’s doing something and others’ doing it, such that if he had an interest in others’ refraining from it he would also

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have an interest in himself refraining; but an artificial causal connection can be supplied. The egoist can secure a system of rules that work to his own net benefit only at the cost of becoming subject to it himself, for others, obviously, will not agree to such a system if anyone is exempted. A claim to privilege is futile. If consistent, the egoist would still rebel inwardly against this reality, wishing for a privileged state in which others obeyed while he did not. But we can imagine that his fantasy will eventually be worn down, especially if the design of institutions works systematically against any possible reinforcement of it. We can imagine that, over time, the consultation of shared rather than special interest will become habitual, each including himself in the ‘all’ whose behaviour he wishes to be regulated. In the longer run, then, we can imagine that in this way a self considered in a particular light will gradually be replaced by a self considered in a typical light; and if so, we can imagine that interest and justice eventually will merge, the pursuit of shared interests leading us to the rule that claims, to be valid, must be generalizable. We can imagine that the egoist will in this way come to see himself as the author of the rules that he obeys and of the sanctions attached to them. So there can be no decisive objection to classifying Rousseau, as was once proposed, as a theorist of ‘conditional natural law,’17 for it is, after all, only in terms of the conditions of moral obligation that Rousseau takes issue with the natural law theorists. Whether or not a theorist belongs to a tradition is sometimes unclear, given that we may have no decisive criteria of inclusion or exclusion. But there is one important reason to stress the natural-law dimension in Rousseau, and that is to draw attention to his belief that morality has a rational and universal core18 – once it has come into existence. People being what they are, he believes, it can come to exist only within the limited scope of an exclusive and distinctive common identity – that is why the cosmopolitans are wrong; but common identities are valued because they domesticate, as it were, the cosmopolitans’ general will. The political community becomes a moral community, and its principle of legitimacy is to be found in the structure of moral thinking itself, that is, in the art of generalizing. III The critique of sophistication, vanity, luxury, and artifice; the corrupting consequences of knowledge; the critique of fashion as a form of slavery; the identification of reason with the capacity for autonomy; the appeal

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to ‘man, of whatever country you are’: all these are themes of natural law that recall the Stoic contribution to it. The last-mentioned theme, of course, poses a problem, for it is in tension with what Rousseau also says about the (archetypically Stoic) cosmopolitan, whose ‘love for the whole world’ can only be shallow.19 But we already have seen how this tension might be dealt with. For psychological reasons, the society of reason and autonomy can be realized only within the frontiers of an exclusive society; only by first becoming citizens do we then become human, and while Rousseau’s humanité retains the de-particularizing connotations of the Stoic humanitas, it stops short at the borders of the republic.20 So Stoic reminiscences are put to a very paradoxical use indeed here. The Stoics’ concern, after all, had been to show that the community of all humans, or of all rational humans at least, had some of the essential attributes of a city; to describe the universal community as a ‘city’ of the world was to employ the term that, to the highest degree in their time, expressed the idea of solidarity and fellowship.21 Rousseau, however, does exactly the opposite. He takes the attributes of a universal society, ‘la société générale,’ and transposes them to the smaller and exclusive territorial community; for it is no longer the political notion of the city but, now, the moral notion of humanité that carries the higher degree of moral weight. The polity is, as it were, a cosmopolis in miniature, for Rousseau’s task, unlike the Stoics’, is to contract rather than to expand the scale of moral concern. But Rousseau’s diminished cosmopolis is not, as we might logically expect, a polis. While the Stoic cosmopolis may have been imagined as a large city, Rousseau’s conception of the city derives its essential features not from the original but from its enlargement. It has become, as he revealingly says, a means to the realization, on a local scale, of a ‘universal justice.’22 Although its scale is limited for contingent reasons, it is a local fragment or ‘subdivision of humanity.’23 Within its domain, it rules out particularity no less than the Stoic idea of humanity had done.24 In view of this, it may be off the mark to claim that Rousseau combines a Stoic morality with a classical politics.25 His conception of politics itself is Stoicized. It is very distant from (say) Aristotle’s, in denying any inherent value to public action; ‘communication,’ he believes, actually impedes the possibility of autonomy, and ‘long debates and discussions’ are signs of the decline, not of the fulfilment, of association (II.3, IV.2).26 Nor is the polity to be distinguished qualitatively from the other associations within it or beyond it. Classically, the polis had been regarded as something different in character from household or village or from the

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associations of friendship or society: Rousseau, however, while admitting only a partial identity between family and city, explicitly regards all associations as, no less than the city itself, bearers of a general will, plainly following the Stoics, not Aristotle, here.27 As for associations beyond the city, ancient political theory had scarcely recognized them at all; but Rousseau’s argument, as we have seen, depends upon a relation of fundamental similarity between the city and the société générale of humans. It is here, though, that a central problem emerges. On the one hand, we are offered an argument about scale. It is true that considerations of a moral kind tell us that our concerns should be as general as possible; in fact, they tell us that there is a direct proportionality between the justice of a will and the scale of the context of consideration in which it is formed. As Rousseau had written in his Encyclopaedia article on ‘Political Economy,’ ‘Particular societies always being subordinate to those who embrace them, one must always obey the latter in preference to the former; the duties of the citizen precede those of the senator, and those of the man precede the citizen.’ However, this moral requirement meets a psychological barrier. The passage continues: ‘But unfortunately, personal interest is always in an inverse ratio to duty, and increases to the extent that the association becomes narrower and the commitment less sacred: incontestable proof that the most general will is always the most just.’28 As he had said in the early draft of Social Contract, the cosmopolitan’s love is too diluted to be real, and the sentiment of humanity ‘evaporates’ if extended too far.29 Mere human similarities fail to ‘unite us.’30 So we should regard political association as a point of equilibrium between morality on the one hand and psychology on the other; it is the product of a compromise or balance, small enough to ‘unite us’ and engage loyalty, large enough to provide that generality of consideration that is essential to duty. Thanks to this line of argument, the patrie can take on all the moral attributes of humanité. A trend of thought that, in its Stoic origins, had sometimes served to diminish or qualify the political attachment now serves to justify it: while the Stoic idea of nature had ascribed to the city of one’s birth only a conditional importance, Rousseau’s adaptation of natural law ascribes only conditional importance to particular associations within the city and thus erodes their claims, transferring to them the Stoic effacement of particularity. In this way the (moral) argument from generality protects the city from the claims of particular groups within it, while the (psychological) argument from particularity protects the city from the claims of a hypothetical association beyond it!

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But on the other hand, we need another sense of ‘generality’ if political association is to have the moral priority that Rousseau assigns to it. The natural-law–derived view is ultimately indifferent to place and scale, regarding all associations and their moral requirements as fundamentally homogeneous in character. The point was characteristically expressed in the familiar image of concentric circles of association: household, street, borough, and city differ in scale alone, and ideas of proximity and distance allow an indefinite number of gradations. Such a homogeneous conception is sometimes adopted by Rousseau himself – it is ‘the good man, the good husband, the good father who makes the good citizen.’31 But in order to give a special weight to political obligations, a different conception of what is general is needed, one that is collective (relating to a common object) rather than distributive (relating to shared properties). Here the relation between the varieties of goodness changes radically. Compare with the last-quoted remark: ‘An individual may be a devout priest, a brave soldier, or a zealous senator, and yet a bad citizen.’32 Compare, too, the claim that the ‘good father’ makes a ‘good citizen’ with the parable of the Spartan woman in Emile33 – a good citizen, but surely a very bad mother indeed. To claim that civic loyalty is overriding in this way is to abandon the image of layered or nested circles of association for a model in which the political circle has come to absorb completely those within it; a model in which, as Rousseau says, the relations among citizens must be as weak as possible, their relation to the state as strong as possible (II, 12). It seems very doubtful that we can adopt this conception of generalization without abandoning the traditions of natural law, even generously viewed. For in those traditions it is precisely the relations among individuals, governed by their perceived generic properties as creatures of God or bearers of reason, that constitute justice; Rousseau, however, substitutes for this a conception of justice governed by one’s relation to a general object, general not in a distributive but in a collective sense: ‘It is in the fundamental and universal law of the greatest good of all, and not in the particular relations between one man and another, that the true principles of the just and unjust must be sought.’34 The patriot must feel less for the foreigner than for his compatriots, just as the patrie must do more for its citizens than for those of other countries.35 But as we have seen, Rousseau has two alternative explanations. It is one thing to say, as he does in Political Economy, that there is a sense of humanité that, however, stops short at the frontiers of the city; it is something else entirely to say, as he does in discussing the same topic

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in Emile, that to the patriot foreigners are ‘only humans.’36 The first represents co-citizens as proxies for the human, the second dismisses the human as a moral category of any weight. The two explanations carry with them two rival theories of citizenship. In the former conception, a sense of respect and attachment is broadened through successive tiers of association until it reaches its maximum (effective) scope: the notion of the human retains its force up to that point, and each individual’s life is contained within a number of zones or realms, in each of which the requirements of human respect are learned and applied. They are applied, Rousseau claims, following Diderot (and older sources), even within a band of robbers. In the latter conception, however, the notion of the human becomes empty, perhaps deprecatory: a human is what is not a citizen. And the idea of the citizen is not achieved by the progressive expansion of an attitude of sympathy or respect, which in principle could be universal, but by way of a notion of shared membership in a community, which is, by its very nature, exclusive. Such a conception, moreover, not only relegates non-citizens to the status of ‘humans’ but also, in distinguishing humans from citizens, effectively denies the primacy of that status to the inhabitants of the city; for to be identified by one’s shared membership is not the same thing as to be identified by common representative qualities, recognized in one’s relations at various levels of association. As a moral doctrine the idea of generalization requires the actor to consider the possibility that an action of the kind that he proposes to perform will be performed generally. This is different from the question of the general consequences of an action’s being performed. To ask ‘Could x be universally willed?’ is not the same as to ask ‘What will happen, viewed generally or overall, if x is done?’ Yet it is the latter question that most naturally comes to mind when a political action or a proposed law is being considered. Moreover, it is the latter question, Rousseau himself says, that is to be asked by the citizen before voting: the proper criterion is that of ‘advantage to the state’ (IV.1). This is clearly not a criterion of a hypothetical kind, in the way that either ‘What would happen if everyone did x?’ or ‘Could x be universally willed?’ are hypothetical questions. What is involved is a prediction and not a hypothesis adopted in a spirit of moral self-reflection, of whatever kind. In both cases, it is true, the individual is required to step outside her immediate circumstances, as it were, and to consider a question in a less immediate or more general context. But what she is required to step into is not the same in the two cases.

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The central difficulty here is that to the extent that Rousseau’s argument is a moral one it serves to define an attitude of a certain kind: the good person is disposed to respect the concerns that he shares with others in preference to those concerns of his that are merely particular. But Rousseau also sees the general will as supplying an object. It brings about not (or not only) a shift of attitude but also a displacement of attention: public affairs, he says, will preoccupy the citizen to the exclusion or near-exclusion of private ones (III.15). Rousseau tries to sustain this shift of attention by proposing what amounts to a redefinition of the self, as a result of which individuals will see themselves not merely as having citizenship – as one among several possible statuses – but as being citizens. If this were achieved, the moral question of the relation between self and others would literally vanish, simply because the two entities whose relation is in question would no longer be distinguishable. Speaking of the desirability of the consciousness of ‘common life’ to the exclusion of private concerns, Rousseau attributes this condition to ‘good social institutions’ that will ‘make men unnatural’ by virtue of the fact that they ‘merge the unit in the group.’37 Elsewhere this process of merging is connected with the idea of patriotism, to which Rousseau attributes ‘the greatest miracles of virtue’: ‘This sweet and ardent sentiment, by combining the force of egoism with all the beauty of virtue, gains an energy which, without disfiguring it, makes it the most heroic of all passions.’38 How are we to reconcile this with the view, noted above, that virtue is accomplished only in the transcendence of egoism? Simply by recognizing that the ego, for Rousseau, is mobile and elastic, a field of emotive identification as attachable to the group as to the self. The attachment of egoism to the private self makes one non-virtuous; the attachment of egoism to the group does not, apparently, ‘disfigure’ the virtue of civic devotion. I can, it seems, regard our things as ‘mine’ no less easily than I can distinguish my own things from others; and if I can manage to do this, then I will enjoy more ‘sweet and ardent sentiments’ than if I identified what is mine with what is particular to me, as I would tend to do without the support of ‘good social institutions.’ Not only that, but the juristic and moral (distributive) rules governing relations among people, to the extent that they continue to perceive themselves as particulars, are actually derived from the (collective) notion of the greatest good of all: ‘Hence cuique suum, because private property and civil freedom are the bases of the community. Hence love thy neighbour as thyself, because the private self extended to the whole is the strongest bond of the general society, and because the State has the

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highest possible degree of force and life when all our private passions are contained in it.’39 Here, most interestingly, the duties of citizenship are not things to be derived somehow from an idea of attachment between human persons, but are the very bases upon which interpersonal obligation itself is to be grounded. We may thus seem to have come full circle. As a theorist of droit humain, drawing upon trends of thought originated by the Stoics, Rousseau appeared to be attempting to derive political duty from obligations of a moral kind: as a theorist of the patrie, however, he appears to be attempting exactly the opposite. The claims of the general interest in a collective sense are not derived by extension from, or as a case of, the rightful claims that individuals generally make upon each other; on the contrary, one’s claims as an individual are rightful only because of their bearing upon a collective interest, their contribution to a valued common life. So while one view reminds us of what political society has in common with ‘general society,’ as an association based on equality and mutual respect, the other requires us to think of political society as something quite different in its organizing principle. IV We are now in a position to turn directly to the general will and to examine its role in the process of political legitimation in Rousseau’s republic. It stands at the point of intersection, as we have seen, between two ways of thinking about human association. One, Stoic-derived and mediated through Grotius and Locke, sees association as a relation based on fundamental resemblance, expressed in ‘moral generalization,’ and limited in scope for entirely contingent reasons. While what we may call the ontology of Stoicism and droit humain is firmly rejected for a much more realistically complex and dynamic view of human nature, many of the moral conclusions, it seems, are to remain standing. Another idea, drawn from idealized Spartan or Roman or Genevan models, takes the fact of membership to be fundamental, and commits its members to pursuing the shared or common or ‘general’ goods of a particular exclusive community. The justice of the former, we might say, is comprised by the (proto-Kantian)40 ideal of non-instrumentalization: no human (within the group) must use another as means to an end, by tyrannizing or enslaving them or by using political association as the means to private profit. The justice of the latter, however, is comprised by the ideal of mutual instrumentalization: the contributions of both you

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and me are resources that we draw upon in pursuing a joint project. Both ideas of justice forbid my making an exception of myself. But they do so on different grounds, and as we have seen they entail the asking of different political questions. Moreover, as will now be suggested, they also entail the validity of different political answers. What is it, to begin with, that confers legitimacy on the decisions of the people? One kind of view focuses on the rightness of the outcome, another on the rightness of the procedure. Discussions of democratic legitimacy divide quite sharply on this issue, for the two possible answers lead to quite different ways of explaining why a vote can be thought to bind the whole, including those who have been outvoted. One approach tells the outvoted that they are wrong or likely to be so, because the process is one that produces the best outcomes, or tends to do so. The other approach tells the outvoted that, right or wrong, the outcome reflects a compellingly fair procedure. Rousseau’s argument in Social Contract is – significantly, I think – refractory to this distinction. At several points it takes what seems clearly to be an outcome-based turn. When he makes his especially famous claim, in book IV chapter 2, that ‘when the opinion contrary to mine prevails, that proves only that I have made a mistake, and that what I believed to be the general will was not,’ he adds an important qualification: that this is so only if ‘the characteristics of the general will’ are present in the majority. We may take this to refer back to Rousseau’s acknowledgment, in the previous chapter, that the ‘general will’ subsists, ‘unchanging, incorruptible and pure,’ even when the people neglect it, or, in book II chapter 3, that ‘the general will is always right’ even though the decisions of the people are not always right. One thing that this might mean is that at any point there is a certain outcome which is right or appropriate because it embodies some specified feature and that the majority’s decision is right if it leads to this outcome. A more reasonablelooking version would specify, rather, a set of possible outcomes, all sharing some valued feature. This feature could plausibly be their contribution to ‘common preservation and general well-being,’ which Rousseau describes as the object of the general will (IV.1). Rousseau’s argument sets out to accomplish the task of explaining why (and when) a majority’s view carries weight – an immensely valuable project. Mere numbers, as he rightly assumes, mean nothing, and giving weight to numbers of votes alone would just be an instance of a so-called ‘right of the strongest’ that Rousseau shows to be no right at all, near the beginning of Social Contract (I.3). A majority’s vote carries weight if it

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reflects an interest, which we all share, in ‘common preservation,’ and in that sense can be said to comprehend the minority’s interest too. We can regard a will to promote generally shared interests as, in a sense, the will ‘of no one,’ that is, a will not expressing this or that partial interest, but one that just happens to be recognized by the larger group, or so one hopes. ‘The general will derives its generality less from the number of voices than from the common interest that unites them’ (II.4). Public decisions are thus no longer to be seen as coercive, compelling some to bend to the preferences of others, for they are arrived at from a standpoint that is potentially accessible to everyone, and, if the decisionmaking process is working as it should be, actually accessible to more people than not. Rousseau prescribes a range of institutions and practices that should have the effect of excluding or at least diminishing the impact of partial interests, thus ensuring that shared interests provide criteria for decision-making. The ‘generality’ of law, for example (II.6), compels voters to consider matters ‘collectively’ rather than trying to favour particular groups, which cannot be mentioned in the essentially ‘abstract’ form that laws must take. Limits on communication and factious activity (II.3) oblige citizens to consider widely shared interests, since exclusive interests shared only by smaller groups thereby become difficult to advance. Much of Social Contract, then, might be seen as an effort to give institutional form to an outcome-based principle of legitimacy, that is, to create a polity in which a specified set of criteria becomes the habitual and effective spring of public action. A reading of that kind accounts for much of what Rousseau says, and may make it both appealing and not wholly implausible. But Rousseau does not leave the matter there. For he also claims that legitimacy arises from the self-prescribed character of laws, that is, the bare fact that they are voluntarily adopted. In addition to ‘civil freedom,’ freedom bounded by the shared civil interests expressed in the general will, he promises ‘moral freedom,’ or ‘obedience to a law that one prescribes to oneself’ (I.8): as he says later, ‘A people, since it is subject to laws, ought to be the author of them’ (II.6). He says that ‘the general will must spring from all and apply to all’ (II.4) (although springing from ‘most’ rather than ‘all’ would seem more precise, surely). He occasionally speaks as though the general will means what is generally willed, as when he says that popular judgment ‘guides’ it (II.6): that, of course, would mean that a will became general by virtue of securing a majority, and not by virtue of meeting some substantive test.

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How are we to understand this other approach – apparently a procedural one – to legitimacy, and how are we to see its relation to what appeared before to be a substantive or outcome-based theory? If a people, since it is subject to laws – which seems, on its face, to state a sufficient condition – ought to make them, what strength can remain in our preferences for outcomes, the origin of law being (apparently) decisive? Two possible lines of reconciliation offer themselves. One would be to claim that although the core argument was a substantive one, there just happened to be only one way to identify good outcomes, that is, to hold a popular vote under certain stringent conditions, excluding factiousness and so on. This vote does not legitimate the outcome, but is the unique route to its discovery; so we defer to the outcome of the vote because it is the only practical way of identifying the right thing to do. A second line of possible argument organizes priorities quite differently, claiming that the core value is that of a self-governing society, owning no authority but its own, and needing, in order to manage its own affairs, access to a source of good judgment: the substantive content of the general will is simply a range of principles conducing to preservation and well-being, principles that members of a self-governing society must apply to their common affairs if their enterprise is to survive. Does either of these approaches successfully explain Rousseau’s claims? The first runs into an impossibility. Rousseau says that ‘there can be no assurance that an individual will is in conformity to the general will until it has submitted to the free suffrage of the people’ (II.7): but if there is no other source of ‘assurance,’ we would be in a bind. If there were only one way to arrive at a right answer, we would have to take it on faith that it was right, since there would be no way to check the answer that we arrived at.41 This makes quite unaccountable the deference that the minority is obliged to display when outvoted, as well as making the language of ‘assurance’ wildly inappropriate. It is certainly hard to read such passages without a sense that a process of voting is not an investigative instrument alone, but adds something of its own at least. If the process of voting added nothing, could we make sense of Rousseau’s insistence on procedural correctness: would it really be so important, for example, that every vote be counted (II.2, footnote), as long as the number uncounted would not have been enough to change the outcome? The second approach, which places the value of self-government at the centre of things, might make more unobstructed headway through Rousseau’s account of procedures, but it too – though for a different reason – is brought up short by the claim that minorities ought to defer.

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If the ‘general will’ means ‘what is generally willed’ (under appropriate procedural constraints), then Rousseau’s claim about minority deference becomes absurd. When a law is proposed, he says, the people are asked ‘whether it is in conformity with the general will,’ and those who are outvoted discover that ‘what [they] believed to be the general will was not so’ (IV.2). But this would mean that each voter, absurdly, would be trying to guess at what other voters were planning to do, and since they would all be doing that, there would be nothing to guess at. To rescue this obviously important passage, we have to attribute some substantive content to the ‘general will,’ and refuse to define it as, merely, what is generally willed. We still face the perplexity, then, of being unable to take Rousseau’s claims as either procedural or as substantive in nature. Can a hybrid view be sustained? Procedural and substantive views of the general will both seem powerful enough to drive each other out of the picture: but could we, by confining the scope of each of them, make them coexist in Rousseau’s account of the voting process? One proposal might be this: one’s vote expresses only a conditional preference; on substantive grounds I prefer A to B, but, valuing democratic procedures as I do, I will think B ought to be adopted rather than A, if it turns out that only a minority shares my substantive views. This is like a solution that Richard Wollheim entertains in reflecting on the alleged ‘paradox of democracy,’ the paradox that one appears committed both to A, which one voted for, and B, which the majority voted for.42 Wollheim entertains this solution only to reject it, for, he says, if one’s initial vote means only ‘A if a majority agrees,’ one might just as well have voted ‘B if a majority agrees,’ for one supports that outcome too. This seems unduly harsh, for, after all, if one has a preference for A one is entitled to do something to promote it (e.g., vote for it), even if as a good democrat one would feel a duty to accept B if A failed.43 So the solution in question might still perfectly well be useful for some purposes. But these purposes cannot possibly be Rousseau’s, because Social Contract makes the solution impossible. Immediately after writing ‘what I believed to be the general will was not so,’ Rousseau adds: ‘If my particular opinion had prevailed against the general will, I should have done something other than what I had willed.’ Now this clearly rules out the proposed hybrid solution, for if my own substantively preferred alternative (A) had ‘prevailed,’ that is, been the choice of the majority, then I should certainly have ‘done what I willed’ in aiding in its victory, in a much fuller sense, indeed, than I ‘do what I will’ in reluctantly accepting B.

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Rousseau cannot, then, move from an outcome-based approach to a procedural one, or do without an implied procedural theory to support some of his claims, or explain convincingly how these two approaches work together in his account.44 Possibly he was the victim of a mistake indicated above, that of confusing the substantive generality of the general will (‘applies to all’) with the procedural fact of its adoption (‘springs from all’), although this leads so quickly to absurd results that it seems quite uncharitable to suspect it. But there is another possible confusion, less egregious, which could serve to conceal the impossibility of the task which Rousseau took on: that is a confusion between the two kinds of ‘generality’ distinguished above, which are distinct even if both are important to the self-governing citizen, engaged in the task of managing common affairs. One is the idea embedded in the familiar idea of moral generalization, or the golden rule: act only on principles that you wish to be generally acted upon. This powerful idea finds its application in a realm of typical actions whose imagined future repetition provides a critical test for what one proposes to do; and let us accept, for the sake of argument, that an act which passes this test has properties that guarantee its rightness. A second idea is that of a common good in a political sense, that is, a good consisting in desirable future states of affairs in which members of the city will participate together. Here we are not thinking of typical acts, identifiable by some feature abstracted from them, and performed, hypothetically, by an indefinite number of actors: we are thinking, rather, of concrete and complex situations that affect us all because of our objective interdependence. Both of these ideas have something in common, that is, they both require us to step outside narrow considerations of self-interest – and so both can be justified on the basis of a normative ideal of belonging or citizenship. But an important difference between the normative contexts that they require us to enter is that the second lacks the guarantees of rightness that are claimed, plausibly, for the first. It is at least a plausible moral theory that tells us that, if we will that some act taken under some typical description should be generally performed, then it is right. But it would not be a plausible political theory that claimed that, if a proposal were aimed at an objective of general benefit, it would be the right proposal. All that tells us is that it falls within the pale of legitimate politics: it says nothing about its merits in relation to other proposals within the pale. These two kinds of ‘generality’ significantly overlap, in that a good citizen must think both about the effects of her actions as generally (i.e. typically) defined, and also about the general (i.e. overall) consequences

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of her political proposals. Both requirements impose kinds of selfrestraint that may well take psychologically homogeneous forms. And both were undeniably important to Rousseau, both being connected to powerful background images of order. If, in certain areas, he neglected the difference between them, that might explain why he made unsustainable claims about the pursuit of a common political good. Rousseau might have thought that by procedural means – requiring the generality of law, inhibiting factious self-preference – he could make people ask the right question, that is, consider only the typical case. And he may have thought, conflating the two senses of ‘generality,’ that this would lead necessarily to the identification of a unique political good of a substantive kind. But only by some error of that sort could one reconcile procedure and substance in the way that Rousseau proposed. The republican model tells us to put procedure first, since politics is above all about civic membership and the procedures that express that value; but the moralization of the republic, its reduction to a sort of miniature cosmopolis – as much cosmopolis as we can realistically get, so to speak – tells us to put substance first. But we can’t do both of these things, and the difficulty of reading Rousseau reflects that impossibility. We are left with two views of citizenship, one of which – putting procedure first – tells us that we are above all members of an organized community with ways of living and deciding common matters that have priority over other appeals that we might entertain: we are, above all, civic friends. The other – putting substance first – tells us that our organized community is valuable only to the extent that it gives expression to requirements that are in principle universal: politically speaking, we are, basically, strangers in proximity. Rousseau depends on the latter conception of citizenship in order to confer deep moral status on political community; but then he also depends on the former to explain why its moral status is unique. That move, I have argued above, is precluded by the premises of the moral argument itself. He can confer legitimacy on the state only by attaching to it an argument whose ultimately universalizing consequences he rejects: and that equivocation, I have argued, gives rise to many familiar puzzles in his account of democratic politics, explaining both its great interest and its great difficulty. Its difficulty, in the last resort, arises from repeated conflations of distinct ideas of what human association is.

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3 Mary Wollstonecraft: Stoic, Republican, Feminist

To move from Rousseau to Wollstonecraft is of course to encounter a striking shift in the treatment of gender. Rousseau is, in fact, the first target in Wollstonecraft’s critique of ‘writers who have rendered women objects of pity, bordering on contempt,’1 and she has little trouble showing, by means simply of extended quotation and terse commentary, the purely prejudiced foundation of his views of women’s ‘nature,’ views epitomizing the dependent and over-sexualized account of womanhood that she sought to demolish. She could of course have found, in the history of political thought, any number of equally objectionable (though sometimes less overt) targets, for Rousseau simply reproduced a long tradition in this respect, whatever his radicalism in others. But one of the most interesting things about Wollstonecraft is that, writing very much within traditional frames, she brought to light some of their liberating potential, and put them to use in her struggle against the political exclusion of women. In this chapter I try to show that she brilliantly exploited, and in part subverted, two powerful classical traditions: one – ‘Stoic’ – is cosmopolitan and individualistic, the other – ‘republican’ – is patriotic and solidaristic. I believe that her highly original mining of these two traditions helps to explain the frequently noted richness of her principal work, the Vindication of the Rights of Woman (1792), and its apparently polymorphous meaning in the minds of successive readers. Wollstonecraft’s reputation, as Barbara Taylor (her recent biographer) has shown, has undergone volatile changes, in her own day and in the succeeding years.2 Some of these different views are prompted by the circumstances of her life, others by the evident and in some ways tragic contrasts between her life and her work. But this chapter confines itself to the work, and in fact to one text, the Vindication.

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Beyond explaining the richness and often tense complexity of the work, however, this chapter also offers some judgments about what to make of it. One conclusion is methodological: it is that we should make less of intellectual discourse, the coercive parameters of thought, and more of intellectual agency, the capacity to exploit spaces within given discursive parameters: to regard intellectual work as the product (or reproduction) of its starting-point is to adopt an unduly linear view of the relationship between intellectual items and their use. Another conclusion is ethical or political: it is that, far from constructing a dead end or a sterile dilemma, as some believe, Wollstonecraft’s Vindication constructs a task that any movement of liberation must take to heart. The two traditions that she draws upon express, no doubt in stylized form, two ethical poles that must be attractive in any organized society. Any conscientious project of social liberation – and perhaps especially a feminist project – will also experience the tension between them, and in that regard the Vindication is not a surpassed but an exemplary text for any theory that is ‘critical’ in the political sense of that term. Finally, this chapter seeks to show that the ‘Stoic’ or universalist component of Wollstonecraft’s thought must take ultimate precedence if her thought is to retain its critical purchase. I There is a ‘Stoic’ feminism that, while far exceeding the policies and practices actually recommended by most Stoics, nevertheless expresses what Lisa Hill nicely terms the ‘universal siblinghood’ of the Stoics’ first principles.3 There is nothing original in the suggestion that such Stoic themes inform Wollstonecraft’s work,4 although the suggestion has never been taken as far as it may be useful to take it. To demonstrate actual specific influence is hard, indeed, but perhaps unnecessary, given the pervasiveness of Stoic themes in eighteenth-century European thought – see, for example, the many references in Peter Gay’s classic study of the Enlightenment as ‘modern paganism,’5 in Schlereth’s account of the cosmopolitan idea,6 and, in a much more speculative vein, Alasdair MacIntyre’s explanation of the fact.7 The Stoic heritage was, after all, cosmopolitan; it spoke of Reason and Nature; it attacked convention; and it was the clearest precursor of the rational deistic religion that was favoured by the philosophes. In particular, Deism tended broadly to return to the original type of a non-theistic but still rule-governed moral code; and in the circles of ‘rational dissent,’ which Taylor has shown to be so important to Wollstonecraft,8 the Stoicism of figures such as Richard

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Price, Wollstonecraft’s mentor, is evident. But in the absence of more than circumstantial evidence of that kind, the ‘Stoic’ reading must rest ultimately on its own illuminating value. For Wollstonecraft, the Stoic view of life provided a quarry of themes usable for her purpose: A Vindication of the Rights of Woman can be read – in part – as an ingenious mining of the Stoic revival for feminist material. Wollstonecraft’s morality is, after all, squarely based on classical ideas of ‘reason’ and ‘nature.’ Reason, she says, is the human capacity that distinguishes us from the rest of creation (81).9 It is ‘godlike’ (84). This claim accompanies a firm rejection of any voluntaristic view of God, which she regards as ‘injurious to morality’ (245). God is reason: and so to follow reason is to enjoy the ‘perfect freedom’ spoken of in the Book of Common Prayer (206), that Book thus being deistically captured. Since reason is implanted by the Creator, it is present in all humans: ‘the nature of reason must be the same in all, if it be an emanation of divinity, the tie that connects the creature with the Creator; for, can that soul be stamped with the heavenly image, that is not perfected by the exercise of its own reason?’ (128). Moreover, the exercise of its own reason, not just living according to reason, is, she insists, a condition of any being’s virtue (92). It is, therefore, an offence to reason, and to God, that ‘the cultivation of [women’s] understanding is always subordinate to the acquirement of some corporeal accomplishment’ (94). Likewise, sexual inequality is an affront to nature. Drawing upon the background assumption that nature trumps convention, Wollstonecraft places sexual inequality among the ‘unnatural distinctions established in civilized life,’ along with ‘riches and hereditary honours’ (95). There is a constant association of the condition of women with artifice: ‘false sentiments’ drown out their ‘natural emotions’ (78), they are condemned to ‘artificial weakness’ (79), their ‘artificial’ duties distract them from their ‘natural’ ones (232), and education and fashion combine to endow them with an ‘artificial mind and face’ (266). ‘Let an enlightened nation then try what effect reason would have to bring them back to nature’ (263). Clearly, what Wollstonecraft finds useful are the anti-conventional resources of the Stoic viewpoint, which can powerfully challenge ascribed privilege. The claims of ‘birth’ and ‘extrinsic advantage’ are undermined (118), and ‘rank’ and ‘ability’ sharply distinguished (126). In bringing this critique to bear on the ascription of sexual difference, Wollstonecraft extends the work of ancient ‘feminist’ Stoics such as Musonius Rufus,10 who had drawn the same conclusions from the ideas of reason and nature.

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Most striking, perhaps, is the usefulness, to Wollstonecraft, of the Stoic critique of passion. For to downplay the role of passion in life was to intimate the value of sexual equality in several distinct though related ways. First, it was the (supposedly) especially passionate nature of women that was often thought to disqualify them from participation as equals, and to downplay passion was to rescue them from this disqualification; second, to downplay sexual passion was, conceptually, to disembody both men and women, and thus to stress commonality rather than physical difference; third, to downplay sexual passion was to rescue women from their role as objects of passion, and thus to open the possibility of redefining their life prospects as subjects rather than objects. There is rich evidence of all three of these intentions in Wollstonecraft’s text. Perhaps the most chilling – and the passage involves all three of the above sub-themes – is her recommendation of romantic disappointment as the best foundation for marriage. ‘When even two virtuous young people marry,’ she writes, ‘it would, perhaps, be happy ... if the recollection of some prior attachment, or disappointed affection, made it on one side, at least, a match founded on esteem’ (152). Disappointed affection is, as it were, a useful lesson in substitutability; the passions tell us that some other is unique, irreplaceable, a necessity to us, while loss and replacement disabuse us of that illusion, and thus rescue us from despair. The lesson is exactly that of Epictetus: ‘In the case of everything attractive or useful that you are fond of, remember to say just what sort of thing it is, beginning with the least little things. If you are fond of a jug, say “I am fond of a jug!” For then when it is broken you will not be upset. If you kiss your child or your wife, say that you are kissing a human being; for when it dies you will not be upset.’11 Wollstonecraft pursues this ancient theme of non-attachment vigorously and systematically. (In fact, actually improving on Epictetus, she notes not only the substitutability but also the inter -substitutability of goods, in pointing out [102] that the neglected wife is a better mother, love for children effectively replacing marital love!) The principal novelty of what she says lies, of course, in drawing out the theme’s particular importance for women, for whom ‘the attached affections,’ as she explicitly notes (261), are held to have a special value, so that the Stoic lesson has a special urgency for them. If it is a general truth that the predominance of passion is a vice, then it is also a general truth that condemns a society for consigning half of its members to a purely passionate and unreasoned life. ‘Miserable, indeed, must be that being whose cultivation of mind has only tended to inflame its passions!’

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(137). As for marriage, she repeatedly rejects the romantic view of it in favour of an idea of a lifelong union based on friendship. ‘The father of a family will not then weaken his constitution ... by visiting the harlot ... And, the mother will not neglect her children to practise the arts of coquetry, when sense and modesty secure her the friendship of her husband’ (72). Women, hitherto disposed only to inspire love, should ‘cherish a nobler ambition,’ that of exacting respect (75). The woman who develops her rational capacities will ‘become the friend, and not the humble dependent of her husband’ (101). Love is arbitrary, friendship is founded in esteem (203). Men should seek in women, not slavish adoration, but ‘rational fellowship’ (241). One of the major lessons that A Vindication tries to convey is the superiority of calm attachment over obsessive need, a need, Wollstonecraft claims, that arises from the sense of weakness and personal emptiness. A second Stoic theme with obviously ‘feminist’ uses is the critique of appearance and reputation. Reason, Wollstonecraft says, will never acquire the strength to regulate our lives while ‘the making an appearance in the world’ is our first wish (154). She notes the ‘adventitious’ nature of a life lived through others’ eyes – just as the length of one’s shadow depends not on one’s own height but on the height of the sun, so too one is at the mercy of circumstances in living for reputation (219). Behind this is the concern that one should rely only on what is under one’s own control, that is, one’s character, and avoid depending on the judgment of others. Quoting a stoicizing passage from Adam Smith, Wollstonecraft compares the (undeserved) loss of reputation to an earthquake or inundation (222). Paradoxically, the best way to preserve one’s reputation is not to cultivate it but really to be of good character, for while opinion may misjudge this or that act, it very rarely mistakes ‘the general tenor’ of a person’s conduct. Women, however, are taught by society to follow exactly the worst path, that is, to cultivate reputation at the expense of a discerning moral judgment about the true worth of things. They are taught, moreover, to focus the concern for reputation on a single topic, that of chastity, and thus to practise a selective and superficial social morality (225–6). In fact, the term ‘morality’ may be out of place, for the narrow set of learned unthinking reflexes that passes for women’s morality is better described, and given its duly diminished importance, by the term ‘manners’ (95). But the critique of ‘appearance’ is given a further extension by Wollstonecraft; it is not far-fetched to see A Vindication as the link between the Stoic tradition and our contemporary theories of the male

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gaze.12 For women are compelled to live lives of ‘appearance’ in the most obvious and physical sense. Constantly evaluated on the basis of their looks, women live lives that are devoted to satisfying superficial but demanding external judgments. Wollstonecraft returns again and again to the two themes of beauty and dress. In the education and socialization of women, ‘strength and usefulness are sacrificed to beauty’ (75) and to the importance of becoming ‘alluring objects’ (76). ‘Should they be beautiful, everything else is needless, for, at least, twenty years of their lives’ (89). The ‘male prejudice ... deems beauty the perfection of woman – mere beauty of features and complexion, the vulgar acceptation of the word, whilst male beauty is allowed to have some connection with the mind’ (147). Preoccupation with beauty distracts women from the serious duties of motherhood: and a vivid contrast is drawn between the corrupted woman who, ‘intoxicated by the admiration she receives,’ practises ‘artful wanton tricks’ and a woman (‘artless’) who is ‘nursing her children, and discharging the duties of her station with, perhaps, merely a servant maid to take off her hands the servile part of the household business.’ Her husband, ‘returning weary home in the evening found smiling babes and a clean hearth’ (233). The preoccupation with dress is, of course, part and parcel of the beauty myth; indeed, Wollstonecraft claims, dress enters into female identity itself (137). John Gregory, author of A Father’s Legacy to His Daughters (1774), is taken thoroughly to task for, among other deeply objectionable things, his view that the love of clothes is natural to women (99–100). So, of course, is Rousseau: his remarks about girls’ natural fondness for dolls, dressing, and talking ‘are so puerile as not to merit a serious refutation’ (115). In fact, the source lies in the preoccupation with needlework in the education of girls, a practice which ‘contracts their faculties more than any other that could have been chosen, by confining their thoughts to their persons’ (154). It also arises, of course, from ‘the want of cultivation of mind’ and from the lack of any important business that might otherwise occupy it (287). It was an important claim of the Stoics’ view of morality that all sins were equivalent, for all, equally, were violations of the moral law.13 Emphatically rejecting any concession to consequentialist evaluations of acts, they denied that (for example) murder could be said to be worse than lying, or serial killing worse than murder; all are wrong on the same grounds, i.e. they are acts of disobedience to law, and it is beside the point that they may contribute in very different ways to (say) human suffering. Wollstonecraft explicitly adopts this view: ‘sublime morality,’

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she says, ‘makes the habitual breach of one duty a breach of the whole moral law’ (229). The context, interestingly, is a discussion of public spirit and private virtue, and the effect of her announcing this principle is to place both upon the same footing – private duties are as important as public ones. The usefulness of this to her project hardly needs underlining. Even if one were to accept a distinction between the public spirit of men and the private virtues of women, there would be no basis for ordering the one above the other. In fact, exploiting a powerful logical consideration, Wollstonecraft points out that the conventional hierarchy rests on an incoherence. If the contributions of women were capable of being ranked below those of men, then by necessary implication they would have to be of the same kind, and measurable by the same standards: ‘If women are by nature inferior to men, their virtues must be the same in quality’ (97). How can their virtues differ qualitatively, if ‘virtue has only one eternal standard’ (98)? The supposed superiority of men would become even clearer to its advocates if it were admitted that their virtues, and women’s, were the same in kind – and so its advocates have a strong reason to make the admission (109). But Wollstonecraft builds a stronger case on the doctrine of equivalence. Just as one attribute of God necessitates all the others (119), so too the active and developed human mind – drawing upon what is god-like in reason – must embrace ‘the whole circle of its duties,’ public and private (266). At a fundamental level, virtue must be the same for men and women, if women are allowed to have souls (89). Morals can have no sex (108). Even if women are assigned social duties that differ from men’s, no fundamental distinction attaches to the assignment: ‘Women, I allow, may have different duties to fulfil; but they are human duties, and the principles that should regulate the discharge of them, I sturdily maintain, must be the same’ (126). The idea of moral division and complementarity between men and women, the former being made to ‘reason’ and the latter to ‘feel,’ is rejected out of hand. And (recalling precisely the more consistent and enlightened of the Stoics, such as Musonius Rufus) important consequences are drawn for the kind of education that men and women should receive (260). II Wollstonecraft’s recommendation of marriage-on-the-rebound, which we might also call the spousal substitutability thesis, recalls Epictetus’ advice about the replaceability of jugs (or of children); and once we have

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seen this point of reference, other Stoic echoes or resemblances readily pour in and tend, collectively, to define the character of the text. But other passages suggest a quite different point of reference, and then tend to exert a defining influence of a quite different kind. Consider, for example, the following: friendship or indifference necessarily succeeds love. And this constitution seems perfectly to harmonize with the system of government that prevails in the moral world. Passions are spurs to action, and open the mind; but they sink into mere appetites, become a personal and momentary gratification, when the object is gained, and the satisfied mind rests in enjoyment. The man who had some virtue when he was struggling for a crown, often becomes a voluptuous tyrant when it graces his brow. (102)

Wollstonecraft’s point is, obviously, about the impermanence of passionate love, and the superiority of marital friendship as a basis for family order. But her language – ‘constitution,’ ‘government’ – obviously invites a political parallel, and we do not have to go at all far to find one. In the famous chapter 2 of book I of the Discorsi, Machiavelli had noted the tendency of far-sighted purposefulness to degenerate into languid presentcentredness, and had made this tendency the basis of a whole theory of constitutional change. Successive political agents adopt important constitutional objectives: when monarchy degenerates into tyranny, the notables revolt and create an aristocracy; they in turn degenerate into self-seeking oligarchs, and in turn are overthrown by public-spirited democrats; but they in turn forget their political purpose, and we revert to rule by a prince, thus beginning the cycle again. Wollstonecraft’s argument recalls a ‘classical republican’ argument of this kind, especially in contrasting the impermanence of love with the enduring needs of political order. Taught to live present-centred lives based upon ephemeral pleasures (103), women, like unvirtuous citizens, eventually fall prey to tyranny; and it is not only ‘friendship’s’ superior (Stoic) dignity and rationality, but also its superior (republican) durability, that makes it preferable to romantic love. Tyranny is perhaps the most evolved of the critical themes in A Vindication, offering the clearest but also the most complex example of Wollstonecraft’s deployment of republican rhetoric in the service of sexual equality.14 To begin with, two distinct kinds of connection are made between the political and the sexual. One is straightforwardly causal: the family produces citizens, and is therefore of direct political

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importance (242); I shall defer this theme to the end of this section, where civic duty is discussed. The other connection is analogical: we may see the family as being like a small polity (275); and it is here that the republican tradition is especially thoroughly ransacked for critical tools. We have already seen, in the preceding paragraph, her view that women’s immersion in the present makes them the victims of domestic tyranny; but the figure of tyranny is still more directly used to describe the effects of romantic love (98). Wollstonecraft is ironical when she says that it is ‘treason’ to criticize love, for she at once goes on to say that its power over us is illegitimate: it is a ‘tumultuous passion’ that ‘dethrone[s] superior powers,’ ‘usurp[s] the sceptre which the understanding should ever coolly wield,’ ‘taking the place of every nobler passion’ in women, and, ‘like servility in absolute monarchies, destroys all strength of character’ (109) – the metaphor clearly leading us to the view that it is love itself that is ‘treasonous.’ The mini-tyranny of the family, then, is reinforced by an internal micro-tyranny built into what is termed the ‘constitution’ of women. And in defiance of all legitimate constitutionalism, the actual ‘constitution’ of women ensures their ‘enslavement’ (117). That, however, is only the beginning, for although women are in the first instance the victims of tyranny, they also abet it – or even exercise it. In counting women among its abettors, Wollstonecraft plays a very high card indeed: the chronic fear of standing armies.15 In the republican tradition, the professional army was consistently seen as an instrument of tyranny: militia forces, the citizens in arms, were the only reliable instruments of a free state, for professional troops could be used by tyrants against the citizens themselves. ‘A standing army,’ she writes, placing herself squarely within this powerful tradition, ‘is incompatible with freedom’ (86). Women as they are at present, Wollstonecraft complains, resemble a professional peacetime army. Like common soldiers, they are ill educated, ‘sent into the world before their minds have been stored with knowledge.’ Like career officers, they are ‘particularly attentive to their persons, fond of dancing, crowded rooms, adventure and ridicule’ (94–5). Gallantry, prejudice, credulousness are features of idle, hierarchical, and functionless lives. They abet it, too, by their ‘courtier’-like role: although powerless, they enjoy proximity to power, and thus develop all the servile and flattering vices of the court. Does the vanity of women prove that their souls are different? ‘It would be just as rational to declare that the courtiers in France, when a destructive system of despotism had formed their character, were not men, because liberty, virtue and humanity were sacrificed to pleasure and vanity’ (136). ‘Whence

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arises the easy fallacious behaviour of a courtier? From his situation, undoubtedly ... Women likewise acquire, from a supposed necessity, an equally artificial mode of behaviour’ (219). And among the courtiers, the familiar and sinister figure of the ‘favourite’ is employed, the figure who, through obsequiousness and manipulation, becomes the holder of real power. Historically, royal favourites have often been women: ‘I need not cite to the most superficial reader of history the numerous examples of vice and oppression which the private intrigues of female favourites have produced’ (272). That reference in effect transfers to court life, and also magnifies, a vice which Wollstonecraft sees as typical of families in general. More often, though, the transfer runs in the opposite direction, and it is the role of the favoured courtier that illuminates the habitual practice of wives. Men are ‘luxurious despots,’ women their ‘crafty ministers’ (262–3). By their secret power over the holders of power, women gain ‘illicit sway’ (263, 272, 113). By a further development of the figure, women themselves become ‘tyrants’ (109, 130), and the relations between men and women become a sort of permanent Saturnalia in which the latter, ‘exalted by their inferiority,’ rule their alleged rulers (131). But women are also ‘queens’ (130), enjoying a destructive ‘regal homage’ (92). And in this version the metaphor takes a more radical step still, for it implies a critique not just of tyranny, or of the abuse of power, but of the very existence of hereditary power itself (131), as an instance of unjustifiable ascriptive status. We progress from a reformist or defensive version of republicanism – typical of earlier English political thought16 – that accepts monarchy if there are safeguards against tyranny, to a metaphorically regicide or Jacobin version that calls for an end to kings and queens altogether, not just to tyrants. Pursuing her ‘courtier’ theme, Wollstonecraft also adopts a typically indiscriminate Orientalist figure: women ‘may well glory in their illicit sway, for, like Turkish bashaws, they have more real power than their masters’ (113). Here long-standing and powerful contrasts are brought into play between Western virtue and Eastern oppression (a contrast traceable at least to Aristotle’s counterposing of Greek freedom and Persian empire). To see women as inferior is to adopt an alien, ‘Mahumetan,’ point of view, which denies them a human status, or even the possession of souls (76, 89). European marriage is discredited by means of repeated comparisons with the harem (101, 151, 270). ‘Turkish’ and ‘Chinese’ practices – the latter including the practice of footbinding which Mill, too, in both On Liberty and The Subjection of Women, was to find so symbolic – are invoked in a minatory fashion (110, 115,

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118). Men who deny the rationality of women, and demand unreasoned obedience, are ‘Egyptian task-masters’ (296). And in an extremely complex image which marries the ‘Orientalist’ theme with the ‘Saturnalian’ theme of ruler/ruled interchange, Wollstonecraft remarks that ‘from their infancy women should either be shut up like eastern princes, or educated in such a manner as to be able to think and act for themselves’ (121). Women, then, are ‘shut up’ as in the harem and subjected to ‘princes’ – but their princes are as secluded and morally deprived as they are. Here we have a subtle example of a theme stressed by Taylor, Wollstonecraft’s deployment of her critique of the feminine against ‘feminized’ men.17 Overlapping binaries and inversions are exploited with a vigour that is as playful as it is biting. To ‘think and act for oneself’ is perhaps the best possible capsule description for the capacity that Wollstonecraft thought it important for women to acquire. Here too, of course, the classical republican tradition exercises a very direct influence, for independence of mind and action had been taken as the essential preconditions for civic capacity. Independence had two aspects, subjective and objective. Subjectively, citizens needed the internal capacities for the exercise of their own judgment, for otherwise they would be dependent on someone else’s, and hence of no civic value. In part, as we have seen, the capacity for civic judgment is linked to the ability to look beyond immediate personal gratification in order to grasp shared, longer-term interests. Wollstonecraft constantly regrets that this ability is undeveloped in women. Comparing them to the victims of political oppression, she says that they ‘are degraded by the same propensity to enjoy the present moment’ (127). Even in their parenting role they are hampered by the inability to defer gratification, spoiling their children by neglecting their ‘future good’ (146). Their ‘desire of present enjoyment’ makes them into passively obedient wives and ‘indolent mother[s]’ (151). Connected with temporal far-sightedness, as a civic virtue, is ‘the power of generalizing ideas’ (a Rousseauan phrase), or of grasping one’s connection to a larger context; if it is true that women lack this power by nature, ‘I shall grant that woman exists only for man,’ for without it one can have only a dependent status (129; see also 93). But women lack the ability because, like the rich and idle classes, they are not called upon to use it: like the nobility, they ‘are localized, if I may be allowed the word, by the rank they are placed in’ (134). Above all, women must acquire the internal resources of ‘understanding’ and ‘character’ to ‘govern [their] own conduct’ (244). But there is also an objective aspect to independence, as

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theorists of citizenship since Aristotle had always insisted. Wollstonecraft follows the tradition here too, in demanding that women should have material independence. Women, she says, will not fulfil their duties ‘till they become enlightened,’ but also ‘till they become free by being enabled to earn their own subsistence, independent of men; in the same manner, I mean, to prevent misconstruction, as one man is independent of another’ (260; see also 236, 265). ‘It is vain to expect virtue from women till they are, in some degree, independent of men’ (231). How is the ‘virtue’ of women to be expressed? Wollstonecraft rejects ‘prejudices that give a sex to virtue’ (79), insisting that the basic moral qualities of female and of male citizens are the same. Yet the Vindication gives the impression, at least predominantly, that the virtue of women is to take a different practical form. Repeatedly, women are said to have ‘peculiar duties’ (260, 263, 277). Perhaps the most explicit passage is the following: Society will some time or other be so constituted, that man must necessarily fulfil the duties of a citizen, or be despised, and that while he was employed in any of the departments of civil life, his wife, also an active citizen, should be equally intent to manage her family, educate her children, and assist her neighbours. (236)

The terminology here is obviously awkward: ‘the citizen’ is taken to be man who has a ‘wife,’ although she is at once said to be a citizen too, though her role is to be in family or civil society rather than in the state. Within this role, it is motherhood that takes on a quite central importance. The Vindication does not propose to change the traditional role as much as it does to reinforce, valorize, and complete it. ‘The society is not properly organized which does not compel men and women to discharge their respective duties, by making it the only way to acquire that countenance from their fellow-creatures, which every human being wishes some way to attain’ (231). Respectability should be ‘attached to the discharge of the relative duties of life’ (234). So motherhood takes on the character of a patriotic duty; and it is certainly tempting – though the connection is never explicitly made – to see Wollstonecraft’s repeated insistence on the ‘duty’ to breastfeed, and her angrily sustained rejection of the practice of wet-nursing, as a parallel to the traditional male duty of military service, which likewise is accompanied by a contemptuous rejection of mercenary surrogates. At any rate, it seems clear that ‘the heroism of antiquity’ (236) that animates the duties of the mother is

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the same as what animates the admired citizen-soldier, who is contrasted so emphatically with the effeminate and foppish professional (233). But there is more to Wollstonecraft’s position than the celebration of civic motherhood, for – as we have already seen – she also argues that mothers can fulfil their ‘peculiar’ duties only if, like their husbands in civil life, they are politically aware or ‘enlightened.’ Despite the traditionally ‘private’ status of their role, it must be politically informed, for their role is nothing less than the production of future citizens; ‘If children are to be educated to understand the true principle of patriotism, their mother must be a patriot,’ and it is an essential part of her being a patriot that ‘she comprehend her duty, and see in what manner it is connected with her real good’ (70). This may not be the whole story, as distinct from the story as far as she wants to take it at the moment. In an intriguing passage that I shall return to below, she floats a trial balloon: should not ‘women of a superiour [sic] cast’ be allowed ‘more extensive plans of usefulness and independence,’ by playing a directly political role (237)? The point is made with a sort of exaggerated diffidence that suggests a desire to make it more strongly. But that passage aside, it is hard to avoid the conclusion that what the Vindication vindicates is, above all, motherhood and its civic dignity. It is concerned less with transforming the role of women than with transvaluing the values that frame its social meaning. To the extent that roles themselves are transformed, Wollstonecraft’s proposals are innovative from a class point of view rather than one of gender as such, for the critique of wet-nursing transfers a ‘duty’ from women of one class to women of another. III From an ontological point of view, the ‘Stoic’ and ‘republican’ visions bring sharply different basic points of reference into play. The Stoic vision is ultimately deeply naturalist and anti-historical, constantly recalling us to imperatives that history tends to overlay or undermine: the accidents of history impose local conventions upon us, and we have to cultivate a stern indifference to convention in order to remember the claims of nature and reason. The republican vision, on the other hand, is historical and anti-naturalist. In the face of deep-seated worries about flux and corruption, worries perhaps reinforced by assumptions about the laxness of human nature, republicans see the city as a historical creation providing us with an artificial order that has to be constantly

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sustained by political virtue.18 From a moral point of view, too, the two visions take us in different directions. For Stoicism teaches indifference to others’ opinion as something that – like the length of one’s shadow – depends on contingencies, while the republican tradition rests its claims on a deeply held desire to protect one’s reputation or ‘countenance’ by fulfilling one’s civic duties; it bases order on public shame, not on private conscience. And from a psychological point of view, too, there would seem to be an important difference between the Stoic critique of gratification, and the austere subjection of passion to reason, and on the other hand the republican theme of the deferment of gratification, the taking of pleasure in collective rather than private triumphs, a theme which certainly refocuses our passions but which can hardly be said to subdue them. (They have to be stronger if they are to survive deferment, after all.) So ultimately, Wollstonecraft’s project may have to confront difficult questions: ingeniously exploiting the rhetoric of two very different traditions, she may lead us to wonder about what, in the last resort, is the foundational value. It is the lack of a cosmopolitan ‘love for mankind,’ she tells us (287), that explains the shallow and meretricious character of the lives of middle- and upper-class women – they have no moral context in which to find meaning or guidance; and from this perspective, their narrowness of vision is compared to that of bigoted patriots such as Cato, who put their own society first without regard for justice – ‘The exclusive affections of women seem indeed to resemble Cato’s most unjust love for his country. He wished to crush Carthage, not to save Rome, but to promote its vain-glory’ (289). And yet, on the other hand, the proposed changes in the legal, moral, and educational aspects of women’s lives are justified as essential contributions to their citizenship. Only if their lives are radically changed can they do their duty to their city, becoming – to force the comparison harshly – a sort of reproductive militia, making each household a contributor to the public good, just as the citizen-soldier is, though by different but equally heroic means. Two ideas suggest (partial) resolutions here. One is that Wollstonecraft clearly sought to contain her republicanism within a larger, cosmopolitan ethic. We note that Cato is condemned not as a patriot but as an unjust patriot; and in her discussion of military matters, touched on above, she makes it clear that she adheres to a strict notion of just war (a war of defence, not of ‘glory’). When she speaks of affection for one’s country, she makes it clear that it is rational affection that is needed, that is, affection contained within justice; and if Susan Mendus is right, there is a precise and very interesting parallel here to Wollstonecraft’s attempt

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to transform sexual passion into friendship.19 (Mendus’s view is that Wollstonecraft sought to transform sexual passion into friendship: the political analogy would be the transformation of purely affective patriotism into rationally tempered loyalty.) Her remarks anticipate Kant’s Perpetual Peace by three years: and just as Kant was to do, she links the traditional republican ideal of militia forces with the Stoic vision of cosmopolis, understood as a pacific international order – citizen-soldiers, unlike professionals, will not be instruments of aggressive war. And in that pacific picture of a world-order of republics that have forsworn aggressive war, any tension between the Stoic and republican ideals is of course largely dissipated. Wollstonecraft offers a vision of a world ‘divided and subdivided into kingdoms and families’ but still ‘governed by laws derived from the exercise of reason’ (113). This passage usefully indicates her view that while families are spatially smaller than states, and states spatially smaller than cosmopolis, the same moral ideal applies universally. The second idea is that the Stoic and republican moral ideals may have something in common. J.G.A. Pocock, in his magisterial study of the theme of citizenship, noted a convergence between the two: eighteenth-century ideals of citizenship, he wrote, ‘urged an ideal of virtue which at times reached unreally Stoical heights of moral autonomy.’20 The two positions shared, obviously, an ideal of self-command, despite their different ontological and moral starting-points. Repeatedly, one can trace points of significant convergence in Wollstonecraft’s uses of the two traditions. Take, for example, the theme of independence. In making a case for the independence of women, one can appeal, on the one hand, to the ideal of non-attachment – one can be one’s own person only if one’s relations to others are under the control of one’s reason, so that one does not become a vassal to others or to one’s own feelings for them; but likewise, one can appeal to the civic case, showing that only the independent citizen can exercise her own judgment and claim the ‘virtue’ of devoting something to the common good. Or take the theme of appearance, which also has powerfully Stoic and civic connections. To be careless of appearance may be to adopt the Stoic indifference to opinion; or it may be to take on the traditional republican themes of austerity and usefulness, and to criticize physical attraction as an unsuitable basis for enduring order. Over a certain range, then, one can follow both Seneca and Machiavelli at once, for in both there is a kind of purposefulness and watchfulness that contrast with the frivolous and self-indulgent life – a Kantian Achtung. To be added to this is a consideration about the depth and extent of

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Wollstonecraft’s critique; her picture of relations between men and women at their worst is such that differences of the kind noted above can often remain in the background. In the hideous matrimonial snakepit that she conjures up, boorish men condescend to and neglect their wives and visit prostitutes, and coquettish women neglect their children and spend their empty days with cosmeticians and dressmakers. There is no moral point of view from which there is anything to be said for this ‘mutual corruption’ (229). And it is ‘corrupt’ from any moral point of view whatsoever, civic or universal. The depth of the critique submerges distinctions. But even given those considerations, it may of course still be the case that at some point the background assumptions of these critiques may collide and generate dilemmas, the convergence of the themes deferring without defusing the question. IV To some readers, it is quite clear that the individualist theme governs the whole. ‘Since Mary Wollstonecraft,’ Iris Marion Young writes, ‘generations of women and some men wove painstaking arguments to demonstrate that excluding women from modern public and political life contradicts the liberal democratic promise of universal emancipation and equality. They identified the emancipation of women with expanding civil and political rights to include women on the same terms as men.’21 That is certainly a view of Wollstonecraft that one might derive from the title of her most famous work. But actually there is surprisingly little about ‘rights’ in the text itself, and the judgment expressed in this passage is open to discussion. For, first, she did not identify emancipation with the expansion of rights, surely; she identified it with a ‘revolution’ (293) in the behaviour and sensibility of both men and women, while believing (rightly or wrongly) that the expansion of legal rights might exercise a causal influence upon it. Second, notwithstanding her commitment to the expansion of rights, she is hardly an enemy of the idea of differentiated citizenship, that is, an idea of citizenship that takes account of (for example) gender. In theorizing a politics of difference, Young supports a politics that challenges the paradigm of liberal individualism by advocating the explicit recognition of group constituencies. And Susan Mendus, in an essay that quotes the above passage by Young as an epigraph, likewise challenges the adequacy of undifferentiated liberal-democratic rights.22 But is Wollstonecraft the right target for a critique of this kind?

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True, the Stoic theme tends in a de-differentiating direction. Wollstonecraft clearly wants to tell us that mind, reason, virtue are not sexed; we are the creatures of a rational God who has implanted the same qualities in every soul. All practices that tend to ‘give a sexual character to the mind’ are ‘false,’ contrary to nature, and the product of a corrupt and unjust society (202). But as we have seen, she also allows for quite different – gendered – expressions of this common virtue. In fact, it is only because of this that her Stoic rationalism can find so much common ground with the idea of a functionally differentiated polity in which citizenship, too, takes different forms; it seems that there are male and female ways of enacting virtue in citizenship, even though the virtue is the same. Now this kind of differentiation, of course, is certainly not what Young and Mendus have in mind. From a later perspective, it might be given the unfriendly label of participation through parturition; and even though Wollstonecraft emphatically endorses its public value, it hardly qualifies as the differentiated mode of public participation that Young and Mendus write about. It is more like a highly unorthodox defence of a traditional division of labour, transforming both the meaning and the conduct of women’s role but not its content. If we turn to the one passage, briefly mentioned above, in which Wollstonecraft does envisage women’s public participation, we find it somewhat in need of interpretation. Speaking of the need to open political careers to women of ‘a superiour cast,’ she writes: I may excite laughter, by dropping an hint, which I mean to pursue some future time, for I really think women ought to have representatives, instead of being arbitrarily governed without having any direct share allowed them in the deliberations of government. But, as the whole system of representation is now, they need not complain, for they are as well represented as a numerous class of hard working mechanics, who pay for the support of royalty when they can scarcely stop their children’s mouths with bread. (237)

This tells us, I think, that the specific representation of women would still be necessary even if the franchise were broadened to embrace the working class. For it rejects the idea that women are virtually represented by male representatives of the same class; it also rejects the idea that working men (or women) are virtually represented by male representatives of the upper class; yet it apparently accepts that working-class women can be virtually represented by women representatives of the

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‘superiour cast’ – or else, unjustly, the proposal leaves working women unrepresented. So, hesitant though one is to build extensively on this slender and cryptic passage, it would seem to require the recognition of a specifically female, trans-class, political identity. But this requirement can take strong or weak forms. In its strong form, it would be a demand for some kind of group constituency of the kind that Iris Marion Young proposes; this would be based on the claim that women share interests or perspectives that men cannot or will not represent, and which need to be made ‘present’ in (for example) the legislative process. A weaker form, however, is suggested by Wollstonecraft’s rejection here of ‘arbitrariness.’ Simply on grounds of equality, one would demand that women (and working people) should be among the political representatives in a democratic society, not necessarily because they have distinct interests or perspectives, but because any exclusion is unjust. (This is the purely liberal-democratic argument that Young detects.) On that reading, we would have to take the ‘superiour cast’ qualification as simply a tactical concession designed to make a radical proposal seem somewhat less so, by proposing to admit only exceptional women. How would we decide between these readings? Wollstonecraft’s central claim for the civic role of women is their reproductive role in the fullest sense, including the education of future citizens: ‘If children are to be educated to understand the true principle of patriotism, their mother must be a patriot’ (70). She gives this education to sons and daughters indifferently, for virtue and reason are ungendered; and it consists in bringing one’s children to understand ‘the moral and civil interest of mankind’ (70). Although it is put to use (for now, at least) in a private and educational context, rather than one of public action, women’s knowledge is to be identical in content with their husbands’, for otherwise they would be unsuitable educators for their sons, as future members of the public, or their daughters, as future mothers, for whom the issue will recur. Given this, what ‘different’ perspective could they have to contribute to political life? If their perspective were in fact different, Wollstonecraft’s main argument would precisely disqualify them from the civic role that the whole text demands for them. If that is so, then we may eventually decide against the differentiatedcitizenship reading and accept that Young is right to classify her as she does. The Stoic vision of equality contains and limits the republican model of functional differentiation. As Wollstonecraft argues, the republican model has to be set within the context of a larger cosmopolitan

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perspective, so that organized political societies figure as fragments of human society, governed by principles of reason and morality – by ‘affection for the whole human race,’ as she puts it on the very first page of the Vindication (69). But if that is so, then the insistence on functional differentiation within the family is at once opened to interrogation. As we have seen, the very same argument that makes the state a mere ‘division’ of humanity also makes the family a mere ‘subdivision’ of it. If the republican theme were primary, we could understand the family as essentially a functional unit within a political organization, and then it would make sense to accept the internal differentiation that its functional role requires – whatever that turns out to be, egalitarian or not. But if family, state, and humanity are to be seen as morally homogeneous groupings differing only in size, that option is not available, and the character of sub-units must be critically assessed from an egalitarian and ultimately cosmopolitan viewpoint which overrides local beliefs. Pursuing a ‘dialectic’ of a kind proposed by Alasdair MacIntyre, however, might we reply as follows?23 The cosmopolitan wants to make the forms of civic loyalty conditional: whatever arrangements we make for our civic life and its defence and reproduction, those arrangements must be consistent with the larger framework of values that alone can make the demands of civic life morally sustainable. But the patriot might say in turn: giving effect to that larger framework is itself conditional, that is, conditional on the existence of organized political societies enabling human life to be continued at a level of security enabling our moral goals even to be sought non-hopelessly. In this way, MacIntyre believes, even the cosmopolitan can be brought to see the need for the non-cosmopolitan loyalties of soldiers. But that defence cannot be extended from MacIntyre’s citizen-soldiers to Wollstonecraft’s citizenmothers. For one thing (the weaker counter-response), the case in the paragraph above demands only that the local ethics of sub-groups be consistent with cosmopolitan morality, not that it be directly modelled on it – so even if functionally differentiated or hierarchical sub-groups could be justified that would be so only if they passed through a cosmopolitan filter, as it were, meeting high tests in terms of necessity; and even if unconditional military service passed this test – a highly dubious proposition – it is hard to believe that compulsory gender roles could. For another (the stronger counter-response), Wollstonecraft’s ‘mothering’ includes the task of directly transmitting the idea of reason, and cannot otherwise be carried on; and it can hardly succeed in this task unless the structure of relations within the family is based on a just and fully consensual distribution of roles.

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V The Vindication was a stunningly original intervention into the discourse on gender. If nothing else, the violence of the reaction to it should persuade us of that: it was taken as clear evidence of the utter folly of allowing a public voice to women.24 But I have argued above that nevertheless the text makes its most central points by exploiting very conventional languages of valorization, even very ancient ones, and that it derives much of its rhetorical power from doing so. So here a question is posed for anyone who is strongly persuaded by (for example) the influential model of intellectual change developed by Thomas Kuhn. Kuhn brilliantly developed the idea of ‘progress through revolution,’ giving enormous momentum to the view that in explaining change we should give our attention to conceptual or ‘paradigmatic’ ruptures. In between these revolutionary ruptures, Kuhn’s book suggested, knowledge builds in an incremental and deeply conservative way, discourse essentially reproducing itself, as practitioners find increasingly minute ways of demonstrating that what we all know is, after all, true, in yet one more case. But from time to time our paradigms of knowledge fail under assault, and we find ourselves in ‘a new world.’ Kuhn’s model was of course developed in the context of the natural sciences: but one of the most striking features of its use was that scholars in the most varied fields, outside natural science, were powerfully attracted by it.25 It is persuasively employed, for example, in explaining episodes in the history of feminism.26 But to read Wollstonecraft’s Vindication is to confront a fundamentally different picture of intellectual change. What we actually find is the ingenious and persistent exploitation of established modes of discourse in developing and advancing a radically new point of view. We are not the prisoners of paradigms, this example shows: modes of discourse contain the potential for entirely novel use. Within discourses, critics exploit incompletenesses and ambiguities, and cause them to fall by virtue of immanent weakness rather than external assault. I should like to add another consideration. The ‘revolutionary’ (or Kuhnian) picture strongly suggests that at any given point in historical evolution a single paradigm reigns: that we are all engaged in working out the detailed implications of a single dominant view. Wollstonecraft’s Vindication casts very serious doubt on that too. It draws on traditions and influences that from an ontological point of view are basically different or even incompatible. Rather than the single-minded Kuhnian paradigm-labourer, it resembles, perhaps, the bricoleur/euse of Lévi-Strauss, an inventive and

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purpose-driven adapter of what lies to hand, whatever its ultimate provenance.27 And here its influence may be important for a tradition of thinking that contains diverse and often mutually contradictory possibilities, and which instigates open-ended inquiry rather than defining the scope of theory in an authoritative and totalizing way. Wollstonecraft’s book, as interpreted above, may seem to lend its support – intentionally or otherwise – to a familiar distinction between equality and difference as basic matrices of feminism; indeed, that very distinction has been linked to what is termed ‘Wollstonecraft’s dilemma.’28 Wollstonecraft’s ‘Stoic’ side is in the last resort (and whatever the Stoics themselves happened to think) rigorously egalitarian; her ‘republican’ side, however, admits basic difference (even if not, as pointed out above, entirely unproblematically). So my reading may seem to be deeply implicated in a familiar view of feminism that sees in it a binary dilemma between the demand for equality and the acknowledgment of difference – between (first wave) ‘assimilation’ and (second wave) ‘recognition.’29 But that binary, according to Chantal Mouffe, has now been ‘exploded,’ and if so my reading may – paradoxically – appreciate Wollstonecraft’s interest only at the devastating cost of making her no more than interestingly antique.30 But why is the distinction in question said to be ‘exploded’? Here a gap appears between ‘Wollstonecraft’s dilemma’ and the dilemma that actually engaged Wollstonecraft. According to Mouffe, to adopt the equality/difference problem is to assume a monistic and totalizing view of ‘woman’ that poses inappropriately exclusive choices, and once we have (properly) dispensed with that view then the binaries evaporate with it. Mouffe’s point, as stated, is surely right: there is no sensible or coherent way of discussing whether the needs of ‘woman’ are better met by one abstract principle rather than another. But that is not how the issue comes to be posed in Wollstonecraft’s work. The issue is constructed, not as one about what ‘woman’ is essentially like, but as an issue that is elementary to political theory: should a political society be envisaged as a fragment of a moral cosmopolis, governed by principles undifferentiated in their application, or as a cooperative project in which roles can be different but complementary? There may indeed be no sensible answer to that from the standpoint of ‘woman,’ but that does not mean that it is not an important question from the standpoint of any given woman, or indeed of any given person who believes that existing distributions of role, status, and power are radically unjust, and who has to confront alternative possible distributions in a critical

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and imaginative way, thus evoking justificatory social models of the most basic kind. Ultimately, I argued above, it is the cosmopolitan element in the dilemma that must govern our judgments. But we are separated from the ultimate in at least two ways. First, as was also noted above, cosmopolitan principle of the Stoic kind operates as a filter, not as a template, and before the filter comes into effect we have to generate proposals that will reflect a multiplicity of experiences, of contestable inferences from experience, some of which will give immediate validation to roles that real lives have sacralized: and it will be hard to tell, sometimes, whether or not those roles are compatible with a full application of human respect – whether they deny it altogether, or whether, given local knowledge, they embody a particular interpretation of it. Second, we have to begin with the real world, which is not after all a fragment of an ideal moral cosmopolis, but a historically produced complex that is far from answering to any coherent principle at all; and unless we are prepared to treat actually existing people simply as means to constructing ideal futures, we have to give weight initially, at least, to their deeply embedded conceptions. The task of liberation may always have to begin with the reframing, rather than the instant obliteration, of what is embedded in actually existing minds – this, perhaps, being the best explanation of Wollstonecraft’s reticence about what she would ultimately like to see. The process of asserting membership within any human community will therefore involve choices spread over two spectrums: of the more or less general, and the more or less ideal. We don’t have any readily available formulas to solve the puzzling issue of how to blend moral universality and historical particularity in our lives, and in fact it may be best to see the weighing of the two as the very process that brings the various dimensions of our humanity into play. And as Wollstonecraft’s text implies, it is probably the case that, as things stand, it is the humanity of the excluded that is likely to be tested more severely in this particular way, when it is in the very process of articulating itself and demanding institutions and practices appropriate to its recognition, thus confronting tensions that convention has softened, blurred, and disguised for privileged others, with the effect of effacing choice in their case. We are not the prisoners of paradigms or discourses because within us there are complex demands that make us call upon, and creatively adapt, the often disparate resources of a historically constructed civiliza-

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tion. And we are not the prisoners of binary choices either, because the task that we face is not that of choosing between, but, rather, that of somehow managing, two demands that are at once rival and complementary: we want our universal status to be affirmed within what is necessarily a particular constellation of cooperative tasks. And that there is no single ‘woman’s’ (or ‘man’s’) response to this task – as Mouffe rightly says – can hardly be thought to diminish its importance. To hold this thought in mind is not to fall victim to abstract binary thinking, but, on the contrary, to acknowledge the practical importance of the farreaching task that the Vindication leaves us with. Some version of that task will have to be taken seriously by anyone who sets out to dislodge a deeply entrenched system of convention and status. The only position for which it would hold no interest would be one that drew from tradition not any egalitarian potential that it may hold, but a view of women that subjected them to moral enclosure and confined them to a private role. There are, of course, many available examples of such a position. But a particularly spectacular one will be examined in the next chapter.

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4 Auguste Comte’s Cosmopolis of Care

Eighteenth-century radicals such as Wollstonecraft explored the liberating potential of cosmopolitanism as a moral view that dissolved political and social convention and reinforced ideas of basic equality. A cosmopolitan vision in some form was either the source, or the product, or the emblem of many elements of the European Enlightenment (as Rousseau, famously, complained).1 The philosophes themselves formed a cosmopolis in one sense of that term, that is, a self-identifying transnational community of the enlightened, as some Stoics – whom they frequently quoted – had imagined themselves to be; they believed themselves to ‘belong less to their own country than to the universe which they enlighten.’2 They were united by the exchange of correspondence, often by extensive travel, by shared interests and mutual inspiration. In a broader and more political sense, they had cosmopolitan tendencies that downplayed the importance of nationality and national organization, thus at least gesturing towards a cosmopolis not just of sages but of humanity itself. The integrating and pacifying power of international commerce was welcomed; patriotism, if accepted at all, was to be contained within universal and pacific values, and supported only to the extent that it in turn supported human liberty – oppositional figures such as Paine, Price, and Wollstonecraft being defiant critics of their own country’s counterrevolutionary policies; the customs and religions of other societies were to be sympathetically explored; and in principle – though often with the usual reservations and blind spots – the idea of a world-wide regime of equality and rights was imagined, a world in which (as Kant put it) ‘a violation of right in one part ... is felt all over.’3 Here too, of course, Stoic precursors could be quoted to good effect, for they had envisaged not only categorial human membership but also human moral solidarity: in a much-used phrase (from Terence), ‘nihil humani mihi alienum puto.’4

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Now up to a point – but definitely only up to a point – Comte’s social theory, in the following century, was all of a piece with Enlightenment cosmopolitanism. He too saw himself as part of an international community of savants, ‘a real coalition, compact, active, all of whose members understand and communicate with one another easily and continuously.’5 He evolved a comprehensive (if Eurocentric) world-view that found a place for every society’s and every period’s contribution to human development. He made his own the virtually standard view that commerce and commercial culture would put an end to militarism. Going well beyond the standard view, he foresaw not just the decline but the actual extinction of nationality and of the nation-state, predicting first a pan-European and then a world-wide order. But he turned his back decisively on the nascent vision of equality and of ‘rights,’ rejecting it as a merely temporary, negative, and destructive idea, valuable instrumentally for its revolutionary role, but now (or soon) to be replaced by a new order of authority and functional differentiation, much more closely resembling the philosophes’ despised medieval era than it does any Enlightenment-based idea of political and social order. This quite violently mixed pattern of adherence and rejection needs explaining: here we have a quintessential theme of the Enlightenment turned radically against Enlightenment itself, as Comte takes up the critique of the nation-state but makes it into the instrument of a new form of hierarchy. The proposed scheme of global organization seems to have literally nothing in common with the values that usually sustain the cosmopolitan project – in fact, it seems to reject them root and branch. The explanation is supplied by the remarkable intellectual evolution in Comte’s work, and in particular, I shall suggest, by his dramatically changing view of the social place and moral character of women. As is well known, his career divides into two parts, each conveniently marked by one major work: the earlier Comte was author of the Cours de philosophie positive, a book which introduced ‘positivism’ in what is still its principal sense, that is, a view which linked the idea of knowledge in general to a progressive and law-based idea of science. Drawing on many eighteenthcentury sources, it offered an encyclopedic history and organization of the scientific disciplines, as well as a philosophy of history that – also very much in line with eighteenth-century sources – promised the eventual extinction of (theistic) religion. The Système de politique positive, however, while retaining the encyclopedic chain of disciplines, adds one more discipline at their head, la morale; and instead of abolishing religion, it lends to la morale the support of an elaborate secular religion, the

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‘religion of humanity,’ which comprises forms of doctrine and worship and celebration which are to replace those of Christianity.6 While some admirers of the positivism of the Cours (such as J.S. Mill) were to bid a sad and surprised farewell at this point, this new positivism was to enjoy an extraordinary though generally short-lived influence on European thought, inspiring social theorists, novelists – such as, in particular, George Eliot – and political reformers.7 The positivist religion is a worship of (what Comte takes to be) the Feminine. The ‘Humanity’ who is worshipped is a ‘goddess’; she is to be graphically represented by the figure of a young woman holding her child; the daily form of worship, on the part of men, is directed to the mothers, wives, and daughters in their lives; as for women, they already have within them the essential tenet of the positivist religion – live for others. Emphatically rejecting the idea of rights, Comte evolves a new ethic of care, modelled, he believes, on the natural moral disposition of women. The cosmopolis that he imagines is to be, eventually, a global network of caring relationships and ceremonies, made possible only by the benign domestic influence of wives and mothers and their (allegedly) natural sympathy for the aims of positive philosophy in its revised and more affective form. The value of citizenship is thus to be demolished from both above and below: from above, by new forms of global financial and religious organization, and from below, by a depoliticized vision of local order. I The transition between Comte’s first and second major works had many features, but from a political point of view one especially striking thing is a change of heart about the scale of political organization.8 The ‘earlier’ Comte, the Comte of the Cours and the essays leading up to it, seems to have accepted that the nation-state would persist, or, even, give way to still larger governing organizations. In an 1826 essay, ‘Considérations sur le pouvoir spirituel,’ he had said that as civilization advanced ‘men and nations are continually driven to form wider and wider associations.’ The European church of the middle ages had provided an over-arching authority that made ‘political dispersal’ possible, but the context shows that what Comte had in mind was the dispersal of power from Empire to kingdom, not any further sub-realm disintegration, as we may term it. When he notes the possibility of further disintegration, of the nation into ‘partial communities,’ he evidently regrets it, attributing it to the

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absence of any lien moral (of exactly the kind, of course, that positivism was to provide in the future). While it is true that the spatial reach of political association is said to be inherently limited, while that of spiritual association is not, nothing in the model that he develops here suggests that political association is to be made to undergo any shrinkage; indeed, ‘as civilization advances, both kinds of association increase in their extent.’9 The Cours itself also appears to assume the persistence of the nationstate; not only that, but it adds some remarks of a strongly centralist sort. One of the (very) few merits of the Enlightenment-inspired revolutionary school, Comte says, was that it understood the need for political centralization, usefully combating ‘retrograde’ ideas of ‘dispersal.’10 Political centralization makes possible the dominance of capital cities, which are the true sites of progress.11 The anachronistic preoccupation with ‘small populations’ diminishes the relevance of ancient political theory, our admiration of which – at the expense of a due appreciation of the Middle Ages – is an absurdity.12 Patriotism, although a ‘savage’ sentiment, can become constructive when tamed by moral universality.13 And the French centralist path is much to be preferred to the English model, which leaves local powers in place, apparently on the grounds that centralism more effectively promotes industrial development.14 But to turn to the later Système is to confront a very different picture, for the new positivist vision, Comte insists, entails the disintegration of nation-states. As he lists the various modes and levels of human association in volume 2 of that work, the state literally vanishes as a meaningful organizational category. There is the family, the ‘city,’ and humanity, and ‘the smallest city already contains all the elements and tissues required by [humanity’s] existence.’ Any concept of association intermediate between city and humanity is arbitrary; the very term ‘state’ is superfluous; it is ‘an impossibility to distinguish precisely among the various intermediate states, under the almost arbitrary names of “province,” “nation” and so on.’15 In the new vision of the future, the positivist church ‘freely unites the cities, as each city spontaneously unites the families within ... It alone can contain universality.’16 In direct contradiction to the early essay quoted above, Comte now claims that ‘as human association extends, political domination must, on the contrary, greatly diminish.’17 In the future order, the normal size of temporal units will not be greater than that of ‘Tuscany, Belgium, Holland and eventually Sicily, Sardinia etc.’ The population of each unit will not exceed three million. ‘Before the end of the 19th century, France will have been freely

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decomposed into seventeen independent republics, each made up of five of the present Departments.’ The other large states will follow; by the twentieth century, Portugal and Ireland (if not subdivided) will be the largest political territories in the West. And if France is the model for Europe, Europe is in turn the model for other continents: while volume 4 of the Système is decidedly short on detail in its predictions about Russia, Asia, and Africa, they too, it seems, are to follow the decentralist path. The Catéchisme positiviste confirms the new doctrine: for here Comte adds that the nation-state is ‘anomalous,’ ‘exorbitant,’ and ‘monstrous.’18 Now although this radically decentralizing project is new, it is clearly connected to a very well established theme in Comte, one which, at least in his own self-description, is bound up with the emergence of his career as an independent thinker. Initially, Comte had adhered to the SaintSimonian vision of a society based on the expertise of les industriels, the directors of industry; but he broke with his mentor over what he first describes as the issue of ‘theory’ and ‘practice.’19 Saint-Simon, Comte came to think, was too inclined to combine together the agents of theoretical understanding and the agents of practical rule. His confusion between theory and practice was expressed in a failure to separate the organs of spiritual and of political authority, a failure which turned his social vision into ‘a sort of revival of Egyptian or Hebrew theocracy.’20 Subsequently, the imperative need to separate spiritual and political authority became the central thrust of Comte’s critique of modern political thought. The pre-revolutionary European state was ‘dictatorial’ in fusing together religious and political functions. While revolutionary political thought had the (destructive) merit of destroying this (‘theologico-military’) ‘dictatorship,’ it too had failed to distinguish between the task of constructing ‘a system of general ideas’ and that of designing ‘a mode of distributing power.’ Whereas the ‘retrograde’ parties wanted merely a return to the status quo ante, the popular party had no constructive theory to accompany its seizure of power, and the Saint-Simonians wanted a new dictatorial fusion of powers in the hands of les industriels, only Comte (he believed) had seen the need for an order that would divide authority: between les savants, who would replace the spiritual authority of the church, and les industriels, who would exercise temporal power.21 This theme of divided authority is at least equally emphatic in the later writings. But the question is why it apparently now becomes necessary that the two authorities should exercise their influence over different spatial domains. The answer surely lies in Comte’s new sense that the

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temporal and spiritual powers are not only separate but in some fundamental ways antagonistic to each other: the state has to be declared anomalous, exorbitant, monstrous, and violent, and cut down to size, because, it must have seemed to Comte, it would otherwise pose a threat to spiritual authority. To understand how this came about, we must briefly trace two linked developments in his thinking. II The first and most evident development is the shift from the mere savant to the secular ‘priest’: in other words, Comte’s new view that the intellectual guidance of the new society must be not only spiritual but in the full sense (or his full sense) ‘religious.’ Sociology, as noted above, is displaced from its peak position in the hierarchy of sciences, and replaced by la morale, which provides the organizing principles for an elaborate private and public cult. His earlier critique of religion, he now claims, was not in fact a critique of religion as such, but only of religion in its ‘theological’ form. Religion is commonly but irrelevantly and mistakenly connected with the idea of gods. It is in fact (Comte appeals to etymology) a matter of ‘binding,’ in two ways: the binding of people together, and the binding of each person together.22 The religion of humanity binds people together by bringing out to the full our altruistic sentiments, the only sentiments that we can all consistently act on within a social context. (More on this below, however.) It binds us together far more effectively than theistic religions did, for it is human association itself that is its object of adoration and worship; whereas before humanity was (at best) only the incidental beneficiary of fulfilling our duties to God, now it is the direct beneficiary of our actions. Instead of futile acts of worship, religion will now bring about the meeting of real human need: the parallel with J.S. Mill’s utilitarianism is very clear here, and Mill’s admiration for the religion of humanity – despite his recusal from its more bizarre elements – is understandable. Comte’s later work, he says, ‘has superabundantly shown the possibility of giving to the service of humanity ... both the psychological power and the social efficacy of a religion,’23 thus putting hope and devotion to work in the service of real and not imaginary objectives. As for the binding of persons together as persons, the crucial point here is Comte’s denial that there is such a thing as natural personal identity. From a static point of view, each person is an unorganized bundle of desires and hopes, incapable of achieving coherence unaided.

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Our nature is ‘eminently multiple ... attracted almost constantly in various directions by several forces that are quite distinct.’24 For evidence, Comte turns to the currently influential science of phrenology,25 which demonstrates (he says) that the brain is pluralistic: it is composed of a series of organs each of which contains its own disposition or drive; there is no natural harmony among them; only cultivation can bring to these dispositions an order that makes a successful and valuable life possible. From a dynamic point of view, Comte appeals to the puzzle of personal identity over time. We are as distinct from our future selves as we are from each other, he maintains;26 and the positivist cult – to which the regulation of time is quite central – provides each person with a series of clearly marked and celebrated life-stages which establish an artificial but life-sustaining continuity. The ritualized definition of the standard stages of life gives each person a clear sense of identity through time. At the social level, a new public calendar – replacing the present calendar of classical and Christian origin – recapitulates annually the historic achievements of the human race.27 From both an individual and a collective point of view, the religion affirms ‘continuity,’ which in fact now becomes the principal associative category, departing from the ordering that Comte had laid down in the Cours. In the earlier work, Comte had distinguished between two kinds of association, ‘sympathy’ and ‘solidarity.’ He dismissed the first as a purely affective thing of no cognitive interest, for it could be excited by fiction just as easily as by reality. ‘Solidarity,’ however, is the conception of developmental unity supplied by science, a conception that brings the ensemble of human events into coordinated order, and provides the model for social order itself. In the Système, on the other hand, the two concepts, together with a third, ‘continuity,’ are defined and valued differently. Sympathy, of course, is no longer downgraded, but becomes the very foundation of social order, expressed and celebrated in the family and in the church. What had previously been called ‘solidarity,’ the conception of progressive human unity over time, is now called ‘continuity,’ and is the central principle of spiritual life. This leaves a severely restricted role for ‘solidarity,’ which is no longer a principle of either affective or intellectual unity. The term is now used to refer to the interdependence of contemporaries, sharing physical space – no more than a fact awaiting values, which are of course to be supplied by family and church. ‘The civil power can never be anything but an organ of solidarity,’28 he writes, dismissively. Contained in the theme of the separation of spiritual from temporal

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power, then, is a transfer of normative attributes from the latter to the former. Civil society is to be seen as essentially incomplete, as no more than ‘a nutritive apparatus’29 and as capable, unaided, of generating nothing more than ‘collective egoism.’30 Perhaps that is why its leaders, le patriciat, ‘secretly hate’ the priests, le sacerdoce.31 If they no longer give the intellectual elite the ‘spontaneous’ respect that had been naively assumed in the Cours,32 it is because their moral capacity has now been quite radically downgraded. Their very motivation is impugned: their desire to lead their societies is just a form of private egoism, a ‘fortunate ambition’ of incidental (and only conditional) benefit to civil society.33 They are denied anything more than the grudging and suspicious support of their subjects – they are, Comte says, unable to win anything more than ‘the cold respect’ of the working classes, and their legitimacy depends on the church’s favour. Without that institution’s blessing – which doubtless is only conditionally granted – society will fall victim to class warfare. The state, then, falls away because it is functionless. Its legitimating function is transferred to the church. Any form of association or of motivation that might dignify it is denied. Even the maintenance of order is, ultimately, taken out of its hands. Physical space ceases to be public space in a political sense, becoming simply productive territory, le sol,34 a source of ‘supplies.’ This extinction of the public, in a strong sense, carries with it the extinction of the private, in a strong sense, too, as each moment of our lives is affirmed as a contribution to others: because people are not to be conceived of as ‘separate beings, but as the various organs of a single Great Being,’ ‘each citizen will always be made a public functionary, fulfilling his task well or badly.’35 III Comte’s proposal depends fundamentally on the role of traditionally excluded groups, women and ‘proletarians,’ who are in fact fitted for the task of reform just because of their traditional exclusion, which has preserved them from the vices of political life, and from misguided education. Here the case of women (as we shall see) has particular importance, but Comte’s argument finds a moral place for the proletarians too. Though given to occasional regrettable rebellions or brutalités collectives, and though generally incapable of rising from mere respectful obedience to love,36 their consciousness has something in common with la pensée féminine. Like women, though much less perfectly, the proletar-

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ians bear ‘the general traits of humanity,’ and they, rather than their employers, will respond to the appeal of positivism.37 But it was not Comte’s plan to emancipate either proletarians or women politically. Though women are to be esteemed as never before, their role (with only the most occasional exceptions) is still to be confined to the household. The pre-eminence of feeling ‘resides spontaneously in the women. But this superiority, so powerful in the family, cannot provide the city with a sufficiently distinct power. In fact, it is wholly tied to the purely domestic existence of the loving sex; it cannot then become, in public life, an adequate source of counsel, devotion or discipline ... As soon as the woman leaves her private sanctuary, she necessarily loses her principal value, which relates much more to the heart, properly so-called, than to the character.’38 As for the proletarians, their satisfactions are to be found in domestic bliss, which their employers and rulers – tormented by ‘fortunate ambition,’ and loaded down with economic and civic responsibility – are sadly unable to enjoy to the full. ‘Happy insouciance’ compensates the proletarians for their economic and political subordination.39 Comte’s new idea of women, combined with his refusal to grant them political emancipation, had direct consequences for his view of political order, for it entirely overthrew the system of rational correspondence that had been essential to his theory of organization. In the organizational structure presented in the Cours, the household was a microcosm of political rule. The rational man ruled the emotional woman, just as larger social and political relations were arranged in tiers of ascending rationality.40 Such a consistent principle of subordination was essential to the legitimacy of the whole structure: ‘in such a hierarchy, each class can deny the superior dignity of higher classes only by abandoning at the same time its own essential title in relation to lower ones, given the constant uniformity of the coordinating principle.’41 Clearly, then, the domestic elevation of women must damage the ‘constant uniformity’ of the organizing principle; and uniformity is not to be restored by a parallel elevation in women’s political role. Comte resolves this difficulty by means of a wholesale readjustment of the pattern of correspondences, again at the expense of political organization. As a realm, now, of ‘sentiment,’ the family cannot microcosmically represent the city, which is a realm of ‘activity’ or ‘practical force’: but it can find a macrocosm in the church, the realm of ‘intelligence,’ for now new parallels are made.42 The women, bearers of sentiment, and the priests, bearers of intelligence, have much in common. They both decline to command, for the role of both is to civilize, moderate, and

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direct, at different organizational levels, the bearers of la force pratique.43 Both, likewise, should own no personal property, for their lives should be in both cases lives of altruism and service, for reasons of sentiment on the one hand and of science on the other; only between them, among the various classes and divisions of positivist society, can ‘profound sympathies’ arise.44 Thus it is to family and church, and not as before to family and state, that Comte’s theme of justification-by-correspondence now applies. In the Cours, the ‘state,’ as a macrocosm of the household, enjoyed a certain transcendence in repeating the structure of its components at a more general level of power; but the ‘city’ of the Système, while necessary as an intermediary between family and church, is an organ of spécialité and does not share in the généralité that links priests and women: that we live for the general good of humanity is a truth arrived at (by rational means) by the spiritual power, and (by intuitive means) by women – the ‘auxiliaries’45 of the church, dispersed throughout the domestic units of the city, and caring for, while taming, their much less reliably caring husbands and sons. Given that Comte is generally viewed as a theorist of consensus, this elaborate structure is perhaps surprisingly conflictual. Assembling its pieces, we can see how crucial Comte’s view of women’s morality is. The civic rulers have to keep their dislike of the priesthood ‘secret’ because, fearing class war, they need its political support. The priesthood can deliver support, despite the fact that the proletarians have only ‘cold respect’ for it, because the proletarians accept the loving influence of their wives and mothers; and their wives and mothers have ‘profound sympathies’ for the priests, and therefore respond spontaneously to their teaching. All this is possible because, according to Comte, women – le sexe aimant or le sexe affectif as they are termed throughout the Système – naturally incline to a view of morality that appears to have no intermediate principles at all. Contained in the formula ‘live for others,’ it consists of sentiments such as caring, affection, veneration – ‘tendresse’; if there are ‘rules’ in it – Comte mentions but nowhere specifies them – ‘they are constantly referred to the service of the Great Being.’46 In other words, they are entirely dispensable. So pliable a view of morality places all the power in the hands of those who assume the role of interpreting it. And its pliability, one feels, has much to do with the assumed pliancy of women: ‘living for others,’ without principles that might offer critical resistance to the views of spiritual authority, they are to become the essential political resource of a soft despotism.

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IV In a well-known article, the moral philosopher Joel Feinberg attempted to isolate the point of the concept of ‘rights’ by imagining a world, ‘Nowheresville,’ in which that concept was unknown.47 He supposed that, in Nowheresville, there would be a general spirit of benevolence; that the idea of ‘duty’ would be recognized, although the duties would not be seen as duties owed to particular individuals – they would be like the current duty to stop at a red light; even, coming still closer to the world of rights, that the idea of rights ‘owned’ by a sovereign or an authority or a god, would be admitted – that one person could have a duty to another person but only because a sovereign or an authority or a god, not the person in question, had the right to demand it. Feinberg goes on to ask what would be missing, from a moral point of view, in a world such a this. But before we take up this line of inquiry, let us note that Feinberg’s Nowheresville had already been quite vividly imagined, in effect, by Comte himself in his later writings. Benevolence is enshrined in the maxim vivre pour autrui; duty is omnipresent, reinforced by private and public cults; and anything that we owe to other humans (or indeed to ourselves) is owed to humanité itself – individuals may benefit from what we owe, but they are not the owners of the duty. They cannot claim anything on their own account, though they may as it happens benefit from what we owe to the progress and eventual perfection of humanity. Why does Comte so emphatically reject the idea of rights, in favour of altruistic caring? His critique is at least as forthright as the better-known objections of Burke or Bentham or Marx,48 perhaps deeper. In volume 1 of the Système he claims that the ‘regeneration’ of future society will consist ‘above all’ in the subordination of rights to duties.49 The term ‘rights’ should be purged from the language along with the term ‘cause,’ and for the same reason. Both terms make sense only in a world that believes in ‘supernatural wills.’ Causes, Comte had argued in his philosophy of science, are impenetrable to reason and imply belief in a deity, beyond reason, who introduces occult forces into the world. (Reason can only establish laws, or statements of reliably regular connection.) Likewise, rights make sense only if we imagine a deity who has made declarations about what is due to his creatures. So-called ‘human rights’ were valuable as weapons against the divine rights of kings, but when taken as organizing principles they soon revealed their basically egoistic

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character, and hence their tendency to anarchy. Now the Catéchisme adds to this a most interesting gloss. Repeating the equation between ‘causes’ and ‘rights,’ and his demand for the rooting out of both, Comte adds: ‘for both notions refer to wills above discussion.’50 Moreover, duties are ‘prior’ to rights, Comte says, in the simple sense that we acquire them by birth. ‘Positivism never admits anything but duties, of all to all,’ he writes: ‘For its invariably social point of view cannot tolerate the notion of right, always based on individualism. We are born loaded with obligations of every kind, to our predecessors, to our successors, and to our contemporaries. Later they only grow or accumulate before we can render any service. On what human foundation, then, could we rest the idea of right, which rationally implies a previous action [une efficacité préalable]?’51 Here Comte is evidently the ancestor of the now famous idea of the ‘encumbered self,’ an idea often urged against liberal theorists of rights today.52 We are born into a ‘thick’ world of obligations – so the view runs – we are not autonomous beings who acquire obligations only through some contractual or quasi-contractual argument that begins by positing our separateness. Finally, of course, there is Comte’s denial of the subject. Here too he is a precursor of much criticism of liberal rights, criticism that sees in that idea the expression of a mythical ‘modern subject,’ a reasoning, choosing being whose identity is arbitrarily secured from social construction. For Comte, as we have seen, there was no self. There was nothing more than a wayward assemblage of rivalrous dispositions awaiting social formation; there were no grounds for believing oneself to be continuous in time beyond the artificial and socially sanctioned process by which lifestages were linked together. So the very idea of a self is a social artefact; and the idea that by virtue of selfhood one could enjoy pre-social ‘rights’ is an utter absurdity, for a non-existent being can enjoy nothing of the sort. This is quite a mixed bag of objections. The strongest of them is the allegation of egoism. Feinberg’s defence of rights could well suggest the model of a litigious and competitive society. What is wrong with Nowheresville, Feinberg says, is that its inhabitants lack the ability to claim or demand something as due to them – to ‘stand up’ for themselves and frankly make demands on others. It seems odd to put the emphasis here, rather than on the value of whatever interests the rights protect, especially when it is accepted that the actual activity of ‘claiming’ something as a right need not be carried out by the right-bearer (a child, an elderly person), but may be executed by a proxy. Moreover, since socie-

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ties vary greatly in their dispositions to litigate, to place such weight on the activity of claiming for oneself is to risk serious charges of cultural bias, since it is not universally agreed that ‘standing up’ for oneself is the best instrument of conflict resolution. Many have echoed Comte’s fear that a rights-based society will be a society of litigants in which the pursuit of shared goods will be eclipsed: this has been a particularly prominent debate in Canada, a country that often seeks to distinguish its political culture from that of its more radically individualistic southern neighbour. But at least two things mitigate this line of criticism. The first is that the idea of a right as something claimable is purely formal, and tells us nothing about its content. Whether or not we accept Feinberg’s provocatively litigious take on the idea will surely depend on what it is that we believe agents can rightfully claim: is there quite literally nothing ? To assert that would entail accepting Comte’s own extreme position that anything we owe to ourselves we owe only as a duty of self-improvement, enabling us to better serve humanity. Only from that point of view could one consistently reject the idea of rights, even in its Feinbergian form, with Comtean vehemence. The second mitigating element is moral generalization. It is quite simply not true that, as Comte claims, altruism is the only value that can consistently be adopted by all members of a society.53 True, there is a long-standing (Platonic and Augustinian) distinction, which Comte buys into, between goods that can be shared without conflict and goods whose pursuit leads to conflict: but that distinction does not align with the distinction between altruistic and personal ends. For there are important personal ends that are generally shared, so that one person’s pursuit is not a challenge to but a condition of another person’s enjoyment. Into this category would come at least the negative liberties – the liberty not be hindered in pursuing one’s goals of personal security, for example, or in expressing one’s ideas. (Property rights would have to be justifiable in this manner if they were to carry weight.) So the idea that there is a basic opposition between rights and community, though strongly held, and persistent, is plainly naive. A shared belief in rights is among the shared beliefs that can make community possible. We find that view in Durkheim, whom we can hardly accuse of sociological naivety.54 The weakest argument is surely the model of encumberment. We are certainly born (for the most part) into families and countries, thus acquiring unchosen connections with ancestors, contemporaries, and successors. But Comte himself obviously believes that at least some of these acquired obligations are defeasible. For as we have seen, he pro-

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poses that (for example) France should dissolve into eighteen independent provinces, ‘France’ thus becoming no more than a historical memory; so first, he implicitly denies the current generation of French people’s obligation to earlier generations who fought to maintain the country’s territorial integrity, and second, he denies any responsibility, on the part of one province, for misdeeds committed in the name of France as a whole, and third, he severs any historic tie between citizens of one province and ancestors who were citizens of another. This, however, is merely an odd special case of a point of much more general importance, which is that inherited obligations must stand at the bar of general justice. The social fact of our ‘encumberment’ settles nothing at all, morally speaking, simply because there is no straight line from who we are to what we ought to do.55 (Which is not to say that there is no line whatsoever.) Comte compounds this problem with his claim that rights can arise only from ‘some previous action,’ such as (for example) a gift giving rise to a right to gratitude. That is an entirely eccentric view of rights in general, and particularly indefensible in light of the importance he gives to obligations apparently weighing on newly born people who have taken no actions at all. If previous inaction is no bar to their having obligations, it is hard to see how it could be a bar to their having rights, and Comte is guilty of criticizing his opponents for a fallacy that they do not actually commit, but which he himself relies on fundamentally. In between the strongest and the weakest cases are two other arguments that invite consideration. One is Comte’s very perceptive view that the idea of rights places things ‘beyond discussion.’ In a sense, this is true. The political process that is familiar to us – and no doubt the same is true, with modifications, of other decision-making processes – is a matter of weighing and balancing. Demands of different kinds and different strengths are made, and how they come to win or lose or to be partially represented in the decision depends on the institutional structure, the dispositions of decision-makers, and the resources of the various claimants. To have a right, though, is, on one view, to have an exemption from this process: it is a guarantee that an interest will be protected, regardless of the twists and turns of the process, whatever form it takes. To quote a very well known definition, to say that a person has a right is to say that there is ‘a sufficient reason for holding some other person(s) to be under a duty.’56 The most natural basis for there being such a duty is, of course, the existence of an important interest, deserving absolute protection. So Comte would seem to have a point. Whatever process of ‘discussion’ we are supposing to precede decision-

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making – public democratic discussion or discussion among priestly sages – the existence of rights will close it down, in deference to someone’s interest. Now once again, we must note the purely formal character of the definition above. What it is that immediately creates a duty on others is left empty, and surely what we think of it must largely depend on how its content is filled in. To maintain that there is no interest at all that warrants the protection of a right is to take a very extreme position that Comte may be entitled to, but that is not available to the less relentlessly single-minded. Moreover, the ‘absolute protection’ model may in part misrepresent the actual functioning of rights in political argument. Some rights-claims of a very basic kind may be important for forcing things off the agenda; it is, for example, a hideous disgrace for a society even to contemplate the torturing of political prisoners for ‘on-balanceit’s-right’ reasons. Other rights-claims, of a more abstract kind, may be important, however, exactly because they force things on to the agenda. Basic rights, as Seyla Benhabib has written, are never really ‘off the agenda’: ‘The language of keeping these rights off the agenda mischaracterizes the nature of debate in our kinds of societies ... we are always disputing their meaning, their extent, and their jurisdiction.’ And: ‘the debate about the meaning of these rights, what they do or do not entitle us to, their scope and enforcement, is what politics is all about.’57 So, pace Comte, the idea of rights does not foreclose on discussion; rights structure and provide the material for discussion, and may be valued for just that reason; and the ensemble of abstract rights that liberal democracies enshrine may provide exactly that arsenal of intermediate principles – half way between ‘live for others!’ and ‘that is wrong!’ – that citizens may need in order to form a critical public. It may provide them with a discursive vocabulary that enables resistance, not only to tyrants, but also to well-meaning authorities who want to rely on aggregating criteria with no distributive component at all. The appeal to rights can compel attention to distributive criteria that could otherwise find no foothold in public debate. Conversely, of course, the denial of rights can be a powerful reason to deny the need for public debate at all. For Comte, it is a merit of the proposed new morality that it should, in effect, eliminate debate: the ‘constant invocation of Humanity can alone dissolve uncertainty of conviction and hesitation in conduct,’58 replacing critical discourse with an immediate affective response. There is an important similarity between the role of rights, understood in the above way, and the role of analogies in informal logic. When the properties of a class of objects are fully understood, it is pointless to

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continue to argue by means of analogies between one member of the class and another: all we need to do is to refer directly to the member’s class membership. That membership itself establishes the likeness of one member to another, and adducing examples of likeness adds nothing (except perhaps illustration). Analogical reasoning is valuable, however, when our knowledge of class membership or of class properties is imperfect, so that it is helpful to illuminate disputed cases by analogy with relatively settled ones. In practice, political argument about rights proceeds very much in that manner, by way of claims about whether one case is or is not sufficiently like another to demand the same treatment – whether, for example, intimate relationships among gay people are sufficiently ‘like’ heterosexual relationships to be regarded by the state as marriages, or whether marijuana is sufficiently ‘like’ alcohol to become a legal product. Such analogies are the stock-in-trade of constitutional argument. So rights-based political argument is particularly well suited to the imperfect, plural, and always-to-be-completed understandings of a self-governing society. It also has the natural effect of constraining goal-based political views, for it pictures society’s members in terms of (potential) resemblances or parallel features, and not as the instrumentalized components of an organization. ‘Treat like cases alike’ points in a different direction from any consequentialism and constrains instrumental thinking. Finally, there is Comte’s denial of the subject. If there are no subjects, then it would seem that there can be no subjects of rights. If the deniers of ‘the modern subject’ are right, then Comte is vindicated: the idea of the right-bearing self is an unstable half-way house between a premodern theological period that valorized individuals as creatures of God, and a postmodern period that sees identities as socially constructed. There is no simple way to respond to the very deep questions that are raised here. Some may wish to offer a rival ontology in which personal identity is secure; others may prefer a ‘weak ontology’59 consistent with multiple versions of personal identity. There is, however, a political response. Perhaps we are not sure what constitutes the identity of others, or of ourselves. But unless we give status to the identity of others we can have no political relationship with them. In any conception of politics that has a place for dialogue, acceptance of the identity (as distinct from the views) of the other is a prerequisite. So identity may not be a dubious ontological given, it may be only a back-formation from the commitment to live political lives rather than lives of unmitigated conflict. We have to believe that they are who they are if we are to engage in relations

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with them that entail that they hold the same belief of us. What to make of the ontological question of identity may be a mystery, perhaps a permanent one: in any event, surely it cannot be that the question of how to realize human coexistence in the here and now depends on an immediate and universally compelling answer to an ancient and formidable question. V Comte’s project was to replace citizenship with ‘feminine’ care or tendresse on the one hand, and a kind of technocratic rationality on the other. He wanted, that is, to remove citizenship as an intermediate point between the purely affective ties among ‘friends’ as he imagined them and the entirely non-affective ties among ‘strangers,’ who, it seems, were to identify themselves in an impersonal way as contributors to a general and all-absorbing project. Their personhood, such as it was, was to derive from that. What is omitted here is, plainly, the full confrontation of one person – unclassified by gender or role – with another, under conditions that both parties have the freedom to interpret, making their interpretations the basis of proposals or demands. ‘Care’ or tendresse plays a key role in this deeply depoliticizing project. Comte’s blindness to basic political requirements reflects his fundamental lack of interest in the fact of spatial connection – whether we think of space as literally territorial, or as the metaphorical sense in which we speak of ‘public space’ as a void to be filled by discursive activity. In his case, ‘cosmopolis’ functioned as a way of rooting out any polis-like features from the world and of replacing them with an elaborately pre-formed moral vision which served to fix roles and sanctify ascribed identities. In this way, of course, the appeal to universal order functioned quite differently from the way that it did in the earlier thinkers discussed above, for whom in one way or another it had a liberty-promoting meaning. But as is often the case, a weakness is the complement of a strength: and Comte’s complementary strength was a deeply inward but powerfully capacious and systematic view of the world that captured the attention of many contemporaries. We shall see in the next chapter how it compelled the attention of one of its most brilliant and least literal-minded readers, but also, in the last resort, provoked her rejection, as a vision inconsistent with personhood and responsibility.

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5 ‘In Rooms Adjoining’: George Eliot and the Proximate Other

‘Moral judgments must remain false and hollow,’ George Eliot wrote, ‘unless they are checked and enlightened by a perpetual reference to the special circumstances that mark the individual lot.’ She goes on to refer to the ‘instinctive repugnance’ that we have to ‘the men of maxims,’ whose formulas ‘repress all the divine promptings that spring from growing insight and sympathy.’1 Quoting this passage from The Mill on the Floss, the moral philosopher Jonathan Dancy describes Eliot as ‘Patron Saint of Particularists,’ although, he acknowledges, she may not have formulated the particularist view with quite the precision that a philosopher would hope for.2 It is especially tempting to relate Eliot’s work to a form of moral particularism that has been vigorously developed in the last two decades: the ethic of ‘care’ that some feminist theorists, following the work of Carol Gilligan, have distinguished from the (mainstream) ethic of ‘justice.’3 Justice-thinking, said to be epitomized by the work of Lawrence Kohlberg, identifies what is right with generalizable principles that are validated in abstraction from all contexts; while caring is a matter of responding to the specific needs of particular others – of the ‘concrete other,’ in one apt formulation, as distinct from the ‘generalized other’ that is the concern of theories of justice.4 Caring is held, moreover, to be a form of morality that is particularly relevant to the experiences and dispositions of women; and as a woman writer with a sharp and sustained interest in the place of women in a man-constructed world,5 Eliot must surely have something to say to moral concerns such as this. Readers of The Mill on the Floss may think at once of the moral polarities represented by the two central characters, Maggie Tulliver and her brother Tom – proxies, perhaps, for Eliot and her own brother – who might be put to

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use as perfect textbook examples of the care and justice perspectives respectively: Maggie with her ‘love which knits us to the beings that have been nearest to us,’ 6 Tom with his view that every moral claim is ‘a right to be demanded.’7 Two features of Eliot’s work – one philosophical and substantive, the other imaginative and formal– are unmistakably relevant to the theme. The philosophical and substantive theme derives from Eliot’s response to the social philosophy of Auguste Comte, in whose work she (in common with many other English literary and intellectual figures of her time) took so keen an interest; for Comte is the true if generally unacknowledged ancestor of the theme of care and justice, developing – in his later writings – a theory of gender that constructs women as caring, sympathetic, and essentially local in their attachments, men as cerebral practitioners of ‘generality.’ So in his work, the KohlbergGilligan controversy is stored up well in advance. The imaginative and formal theme is Eliot’s ‘pastoral’ approach, as it may (quite loosely) be termed, which leads us into the life of local communities that have a strongly marked particularity and a distinctive cast of characters – and then invites us to place the story in the context of broader public themes, even universal ones. ‘There is no private life,’ she writes in Felix Holt, ‘which has not been determined by a wider public life, from the time when the primeval milkmaid had to wander with the wanderings of her herd, because the cow she milked was one of a herd which had made the pastures bare.’8 Here, then, is rich exemplary material for the discussion of particular loyalty and broader moral judgments. This chapter explores the interaction between pastoral and public themes in Eliot’s novels, and also her response to Comte’s theory of gender. Its conclusion is that her particularism is certainly qualified, probably undermined, and perhaps entirely subverted by her theory of justice, and that her work expresses her forthright rejection of the Comtean division of moral labour. In short, the chapter argues that Eliot, far from being the patron saint of particularism, is a moralist who tries to persuade us to see the universal in the particular and to value the particular for that reason. Far from being a somewhat imprecise particularist, she is an almost precise opponent of that moral point of view, and a writer who challenges some distinctions that have crept into nearorthodoxy in the course of the care vs justice debate. She is not, I shall argue, a theorist of the concrete other, but of the proximate other, and concern for what I shall term proximate otherness is very much more

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closely related to justice than to an ethic of care – if we have to choose between those two categories.9 I Let us first, though, consider the case for Eliot as a ‘care’ theorist, and as a critic of ‘justice’ theories and their abstractness. Caring, after all, is one of the principal themes in her work, and the importance of care is, recurrently, among her strongest conclusions. Her novels offer a series of pictures of extraordinarily caring acts, and charitable character is said to be displayed in ‘thoughtful care for the everyday wants of everyday companions.’10 In Mill on the Floss, as noted above, the sister-brother contrast resonates unmistakably with the care-justice distinction, and one is left in no doubt at all where the loving Maggie and the rigidly righteous Tom would stand in relation to, say, Carol Gilligan’s typology. In Adam Bede, the unfortunate Hetty Sorrel (the poor-but-honest fallen woman) finds a refuge from unforgiving social mores in the (very differently motivated) loves of both Adam Bede and Dinah Morris. In Silas Marner, the reclusive weaver’s life is wholly remade by his devotion to an abandoned child; and while the background influence of Wordsworth’s Lyrical Ballads is often rightly noted, the novel also clearly draws upon a theme from Auguste Comte – the emergence of social existence from acts of personal devotion. In Romola, a Florentine woman of the Renaissance period devotes herself to the care of her father, a blind and demanding scholarly Stoic, and, at the end of her story, is a figure who (like Dorothea in Middlemarch)11 is identified with the Madonna herself, as an epitome of love and mercy; and her rejection of her father’s Stoicism – the epitome, in turn, of a rationalist and universalist ethics – is perfectly clear. Felix Holt also contains a loving daughter, as well as (like Silas Marner) a doting paternal figure, who, pathetically, worries that his love for his daughter might not be consistent with the even distribution of attention to others that strict duty demands.12 And in Daniel Deronda, the whole story depends on the importance of discovering one’s ‘primary’ familial ties, and of a personal love that founds and intensifies one’s general ideal of living. Not all of Eliot’s carers, or even a clear majority of them, are women. There are a remarkable number of loving fathers, actual or surrogate – Silas Marner, Tito’s (rejected) adoptive father in Romola (before ingratitude drives him to revenge), Mr Lyon in Felix Holt, Mr Brooke in Middlemarch, Mr Tulliver in Mill on the Floss, Sir Hugo in Daniel Deronda;

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and although there are righteous but unloving brothers such as Tom in Mill on the Floss, and utterly uncaring husbands such as Grandcourt in Daniel Deronda, there are also younger men who play a caring role in Adam Bede, Felix Holt, and Daniel Deronda, so that fatherhood is not presented as the only male care-giving role. There are also uncaring women. Rosamond, in Middlemarch, is a self-absorbed person achieving her aims by passive-aggressive means (rather than by the overtly coercive means employed by the monstrously egoistic Grandcourt). Since her child dies, we have no account of how (if at all) Eliot would have supposed motherhood to change her. We know, however, from Daniel Deronda that even motherhood, in Eliot’s view, does not guarantee care; for Deronda eventually meets his long-lost mother, and appeals to his special attachment to her, only to have the appeal rejected in the coldest and most egoistic terms. His mother, the Princess Halm-Eberstein, freely drawing rhetorical devices from (one might guess) J.S. Mill’s On Liberty,13 asserts her absolute right to personal fulfilment against the claims of kinship. Complementing the caring figures, devoted to the ‘concrete others’ around them, are sadder figures whose lives are driven, and deprived, by – exactly – devotion to abstractions. Casaubon, in Middlemarch, is of course the paradigm case, a man given over to learning which is sober to the point of inanition, but who is capable of the coarsest prejudices against his blameless and loving wife. In another case, that of Bulstrode in Middlemarch, Eliot directly traces moral failure to the weakness of close personal ties. Bulstrode lives a life of public rectitude, promoting good causes and the word of the Gospel. ‘The service he could do to the cause of religion had been through life the ground he alleged to himself for his choice of action.’ But: ‘There is no general doctrine which is not capable of eating out our morality if unchecked by the deep-seated habit of direct fellow-feeling with individual fellow-men.’14 One gathers the same conclusion from the rather more fully worked out (and sympathetic) treatment of Savonarola in Romola. Savonarola is a man of colossal ambition, a world-historical figure, ‘a beacon shining far out,’ and wielding ‘the sword of God’s justice.’15 Initially swept up by his magnetism, Romola comes eventually to discover that this sword is about to claim her own blameless godfather – a sacrifice that Savonarola, chillingly, finds ‘light.’ In her final passionate exchange with Savonarola, Romola rejects an idea of God’s kingdom that excludes ‘the beings that I love.’16 The ‘opposite emotion[s]’ displayed here are, at least on one reading, those of universalist vision and particularistic sympathy, al-

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though, as we shall see later, some important qualifications (to say the least) are necessary. The importance of particularity is underwritten by one of Eliot’s most central and recurrent themes, that of the process of moral self-making. We are responsible for what we become, not because we decide at some point to be one kind of person rather than another, but because our moral character is built by a series of small decisions of limited scope.17 Even the great have to ‘walk on the earth among neighbours,’ and each has ‘his little local personal history sprinkled with small temptations and sordid cases.’18 The ‘small solicitations of circumstance’ undermine us, rather than ‘any single momentous bargain.’19 This is the logic of Lydgate’s downfall in Middlemarch, the ‘little claims’ of domestic life (and their costs) coming to obstruct the ‘impersonal ends of his profession.’20 Bulstrode’s fate, in the same novel, is likewise the outcome of ‘little sequences’ of action, ‘each justified as it came,’ but jointly lethal to his character.21 Much more dramatic, but following the same mechanism, is the personal destruction of Tito in Romola, who at the beginning of the story is an amiable if hedonistic fellow, and a moral monster at the end, his yielding to one temptation setting in train a devastating process of corruption. He experiences ‘that inexorable law of human souls, that we prepare ourselves for sudden deeds by the reiterated choice of good or evil which gradually determines character.’22 Of course, the mechanism can work benignly too; if bad choices can lead to personal destruction, good ones can lead to the renovation of one’s life (as in Silas Marner). Whether it takes malign or benign forms, the idea of self-making places enormous importance on acts of local and particular caring, for it is how one makes these that, over time, also makes one who one is. Strongly connected with this theme is an idea of the necessary rootedness of life, the need for a particular locale in which sequential self-fashioning can take place. In Romola, much is made of the fact that Tito, Eliot’s most dramatic exemplar of moral corruption, is an ‘alien’ in Florence (he is Greek), and thus relatively ‘indifferent’ to the sentiments of those around him, and capable of a déraciné suppleness that comes more painfully to natives.23 The sympathetically treated Will Ladislaw in Middlemarch is also half-alien and ‘gypsy’-like,24 and finds himself through discovering local engagement: ‘our sense of duty must often wait for some work,’ Eliot comments, the context implying that ‘work’ is always particularized and local.25 In the same novel, the affable if slightly fey Mr Brooke, when drawn into radical politics, is seriously embarrassed when his penny-pinching approach to his own tenants is

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publicly exposed; his morally more clear-sighted niece, Dorothea, remarks that ‘we have no right to come forward and urge larger changes for good, until we have tried to alter the evils which lie under our own hands.’26 On the much larger canvas occupied by the story in Daniel Deronda, Eliot contrasts (somewhat diffusely) two possible relations between oneself and one’s humanity. ‘Cosmopolitans’ reject nationality and look forward to the ‘fusion of races’;27 nationalists – and here the main example is the nascent Zionism that comes to be the novel’s principal focus – believe that people must have a particular identity and make their contribution by way of the distinctive contribution of their nation: ‘Each nation has its own work, and is a member of the world, enriched by the work of each.’28 The special contribution that would be made by a Jewish polity, for example, would be to act as a link between East and West, thanks to the dispersed historical experience of its members.29 This conception is so fully and sympathetically described that one can hardly avoid being led to it by Eliot’s story, in which it embodies the redemptive fusion of primary ties and higher or ‘religious’ purpose.30 Here one cannot help but feel that, as her conception of religion evolved, Eliot’s requirements became more demanding and severe. In the much earlier Silas Marner, Marner’s progress from reclusiveness to sociality is itself an accomplishment of a religious kind. But in the later novels, such as Deronda or Romola, social membership seems to require the acknowledgment of a further level of aspiration, without which social solidarity ‘cannot rise into religion.’31 Even this later position, however, requires a strong sense of belonging and of ascriptive particularity; it is only the scale of the particularity that has changed, the argument now apparently requiring not just communal membership but, rather, a larger national membership at only one spatial remove from humanity itself. There is a general conclusion to be drawn from all this: that particular attachments have a primary place in moral experience. If we take this to be Eliot’s conclusion, then we may relate it easily enough to the Comtean themes that we know to have been formative for her, and which exercised such an impact upon her, as an engaged student of contemporary ideas. For the most striking event, for a close and serious follower of the evolution of positivism, was the transition from the Cours de philosophie positive to the Système de politique positive.32 In the former work, Comte took the position that the power to ‘generalize,’ to form universally applicable rules, was the highest intellectual capacity in moral as in other matters, and that in a properly ordered society power should be placed

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in the hands of those in whom this capacity was most fully developed. The later work, however, introduces a ‘religion of humanity’ which carries a quite new emphasis on the importance of sympathetic affect, and a quite new emphasis on the moral qualities of women. The ‘generality’ of the earlier work is supplemented by a ‘generosity’ that it is the particular task of women to express and foster. If the former work would sit well with Kohlberg’s developmental moral psychology, in elevating the importance of abstraction and generalization, the latter is more closely aligned with Gilligan’s critique, in stressing the paramount importance of ‘feminine’ caring. And certainly there are reasons, as we have seen, to take seriously this late-Comtean doctrine as an element in Eliot’s novels. Eliot is among the many eminent English writers (including J.S. Mill) who found the ‘religion of humanity’ powerfully attractive, and many influences and borrowings of both general and detailed kinds can be traced.33 But what Eliot made of it was something distinctively her own; and only very provisional truth can be attached to the reading of her as a theorist of caring. II The case for Eliot’s moral particularism, then, is strong. Her work constantly leads us to question ‘maxims’ or ‘formulas’ and to value ‘insight’ and ‘sympathy’ in relation to concrete cases. To that extent, we may see her as a moralist of care. But although she celebrates care, she never counterposes it to justice, properly understood. Care is the opposite of self-interest or self-absorption – not of justice. Gwendolen, in Daniel Deronda, is a useful example. Unlike Eliot’s other main princess-figure,34 Rosamond in Middlemarch, Gwendolen is tractable to moral instruction, which she urgently wishes Deronda to provide. ‘Try to care about something in the world besides the gratification of small selfish desires,’ he tells her.35 His disapproval of her gambling – he first observes her in a casino in Genoa – is that in gambling one wins at someone else’s expense: ‘There are enough inevitable turns of fortune which force us to see that our gain is another’s loss ... One would like to reduce it as much as one could, not get amusement out of exaggerating it.’36 But this minor vice only foreshadows (as Gwendolen perceives)37 a much worse burden of guilt; she knowingly deprives another woman of her legitimate marital expectations, by marrying the odious but affluent Grandcourt, who, she knows, maintains another household: ‘I have thrust out others – I have made my gain out of their loss.’38 Behind this

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situation we may detect Eliot’s larger theme that the interests of humanity are in the last resort common and not divided, and that good institutions would reflect this truth, rather than setting one person’s good against another’s.39 What is Gwendolen’s mistake? Deronda wants her, as we have seen, to ‘care about something,’ but the meaning of ‘care’ in that injunction is entirely generic and, for our purposes, unhelpful. She is enjoined to be serious about something, but we do not know what. Actually, what leads her into her disastrous marriage with the eminently drownable Grandcourt is her caring for her family; as her uncle urges, ‘if your marriage with Mr Grandcourt should be happily decided upon, you will probably have an increasing power, both of rank and wealth, which may be used for the benefit of others.’40 Her marriage is indeed the means by which her mother and sisters are rescued from penury. So, one may feel, it is really a little hard on Deronda’s part to accuse her of caring about nothing. And in Gwendolen’s own self-interpretation, what she lacks is not care but justice; as she yachts in the Mediterranean with her husband, Eliot remarks: ‘enter into the soul of this young creature as she found herself ... on the tiny plank-island of a yacht, the domain of a husband to whom she felt that she had sold herself, and had been paid the strict price – nay, paid more than she had dared to ask in the handsome maintenance of her mother: – the husband to whom she had sold her truthfulness and sense of justice.’41 There is no reason why she should care for ‘the other woman,’ whom Grandcourt after all maintains at a safe distance from her own community, and whose conduct to her (at their one brief meeting) is less than endearing; certainly there is no reason why she should care more about her than about, say, her own mother. It is the injustice that, quite rightly, worries her. It is not that she has caused harm – it is likely that (on a contextualist analysis) she has actually prevented more harm than she has caused, since Grandcourt is willing to maintain two households rather than one: it is that she has denied a just claim. This rather turns the tables on the ‘care’ reading: does Eliot offer us a justice theory? The moral wrongs that corrupt and devastate lives, in Eliot’s novels, are injustices. The wrong that eventually catches up with Bulstrode, for example, is that of concealing a legal entitlement. He undertakes to discover if his prospective wife, a widow, has any surviving descendants on whom to settle her property. He finds that her lost daughter is living, and has a child; but he conceals the discovery, and the widow’s fortune becomes his own through marriage. He persuades himself that this is

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‘the best use of a large property’ but knows it all the same to be ‘unrighteous’;42 and clearly it must be the ‘generalized’ rather than the ‘concrete’ otherness of the (entirely unknown) lost daughter that makes it so. That one should not (avoidably) profit from another’s loss is a general rule; in fact, it is a proposition of normative social theory to which, as we have seen, Eliot often returns. In the case of Tito, in Romola, the wronged one, Baldassarre, is indeed ‘concretely’ known – for he is Tito’s childhood guardian, ‘a man who long years ago had rescued a little boy from a life of beggary, filth, and cruel wrong, had reared him tenderly, and been to him as a father,’43 now lost, perhaps in Turkish captivity. Initially, Tito persuades himself that his uncertainty about Baldassarre’s fate excuses him from the duty to find him and ransom him, using the jewels which Baldassarre himself had given him; instead, selling the jewels allows him to build a fortune and a political career in Florence. The wrong is again an injustice, a failure to return care for care, a ‘falsehood’44 in the sense that it expresses the denial (first implicit, later explicit) of a morally important engagement. Tito is not incapable of caring; he wants to live in harmony ‘with the beings he care[s] for’;45 though he fails to rescue his guardian he rescues the hapless Tessa and enjoys an idyllic though illicit domesticity with her and their children.46 His failing is exactly that bare obligation has no force for him at all. He wrongs his late father-in-law by selling and dispersing the library that Romola’s father had wished to be preserved as his monument. He justifies the act by arguing that her father’s wishes served no ‘valid, substantial good,’ that the books will be safer in the hands of rich purchasers, even that ‘the care [NB] of a husband for his wife’s interests’ requires it.47 Romola replies that her father’s wish should be respected ‘because it was a trust,’ and that she expected Tito to find that consideration sufficient. She speaks of her own love for her father, but appeals to Tito to see that ‘a just life should be justly honoured,’ and that her father’s wish has ‘just claims’ upon them both. She denies, moreover, that any larger theory of ‘substantial good’ of a consequentialist kind can override the obligation; for there can be no good ‘for cities or the world’ if people harden their hearts against the force of promises made and thus undermine the conditions of mutual reliance.48 Romola’s view emerges again in her second confrontation, this time with Savonarola himself. Here the issue is more complex, for whereas Tito follows a policy of thinly veiled personal expediency, Savonarola seeks to do God’s work by creating a holy republic in Florence and sweeping corruption from the church. He is explicitly identified with the

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cause of ‘justice,’ and in the contrast that is drawn between his own ‘theoretic conviction’ and Romola’s ‘personal tenderness’49 we may, as noted above, see something resembling the distinction at issue in this discussion. But first, whatever his own self-description, Savonarola is very far from being an unmixed embodiment of justice: his soul is ‘powerloving,’ and he longs to achieve God’s purposes ‘by the exertion of [his] own strong will.’50 He has a need for ‘personal predominance.’51 Second, what he tries to do is compromised on its own terms, that is, it is found wanting as justice, not in terms of some other standard. To a culpable degree, he lacks knowledge of the ‘inevitable’ effects of spiritual perfectionism in politics: ‘No man ever struggled to retain power over a mixed multitude without suffering vitiation; his standard must be their lower needs, and not his own best insight.’52 And third, Romola’s own appeal, this time on behalf of her godfather, is again cast in terms of the demands of ‘justice’ as well as of ‘mercy.’53 It is not the ‘right’ that she rejects, but one too narrowly construed.54 Romola, we are reminded, is an Antigone figure, forced to choose between law and rebellion;55 but as every reader of Sophocles’ play knows, Antigone was far from being a moral particularist, but was driven in her own fashion by the imperatives of law.56 It just happened not to be the law of the state at the time. Moreover, what Romola opposes to Savonarola’s argument is not at all any kind of moral particularism but a rival universalism. She does not reject the pursuit of ‘the kingdom of God’ in favour of relations of caring, but insists on another conception of God’s kingdom in which humane dealing is possible and required. Savonarola’s version of God’s kingdom, she comes to think, degenerates into repulsive exclusiveness.57 Here the argumentative tables are entirely turned. It is Savonarola whose objectives are ‘narrow,’ Romola whose engagements are ‘wide.’58 It is Savonarola who forestalls Romola’s flight from Florence by preaching the sacredness of local duties: ‘Live for Florence – for your own people, whom God is preparing to bless the earth.’59 It is Romola who, after her journey among the plague victims outside the city, comes to realize the emptiness of particularism in the face of sheer human fellowship. ‘In Florence the simpler relations of the human being to his fellowmen had been complicated for her with all the special ties of marriage, the State, and religious discipleship,’60 but now she understands the unmediated hold that human suffering has upon us. What is at issue here is obscured rather than revealed by the terms in which moral ideas have come to be classified. Savonarola’s project is a universalism that, in attaching itself to determinate institutional ends,

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must settle upon local instruments, and accept the ‘narrow devices’61 that their protection requires. Romola’s is another kind of universalism that, seeking a transformation of consciousness, cannot accept compromises that fundamentally deny its aspirations. Others have a ‘generalized’ status in the sense that sheer humanity gives them claims; the universal is in the particular, and forbids us to use particular others as instruments or to ignore their suffering. We have here two moral conceptions that are differently structured, one ‘instrumentally,’ the other ‘expressively,’ as we might put it: but to claim that the first one is more universal than the second, or more a matter of ‘justice,’ is quite unsupportable. III Eliot, then, does not want us to distinguish in any essentialist or systematic way between caring and being just. In Theophrastus Such she argues against confining our ‘moral’ evaluation of people to their particularistic lives, for this ‘shut[s] out from its meaning half those actions of a man’s life which tell momentously on the wellbeing of his fellow citizens.’62 In the novels, her models are both caring and just. Like Romola, Dorothea in Middlemarch has ‘an ardent faith in efforts of justice and mercy.’63 Angry and resentful at finding Will Ladislaw, whom she (as yet indistinctly) loves, in apparent intimacy with the vacuous Rosamond, she passes a sleepless night: ‘She began now to live through that yesterday morning deliberately again ... Was she alone in that scene? Was it her event only? She forced herself to think of it as bound up with another woman’s life,’ and as a result of her reflection reaffirms her intention to act kindly to Rosamond and her husband.64 Which is the justice here, and which is the caring? Rosamond is at once a generalized other (‘another woman’– exactly like the ‘other woman’ whom Gwendolen comes to worry about in Daniel Deronda) who must be given consideration, and a person with particular concrete needs, arising from her husband’s public disgrace, which determine the appropriate course of action towards her.65 Likewise, in the same novel, when Bulstrode’s moral destruction and humiliation are complete, his wife responds with ‘duteous merciful constancy.’66 In Felix Holt, when Felix forbids his mother to exploit the gullible by selling worthless patent medicines, he replaces the income himself, so that being ‘tender of conscience towards strangers’ does not make him ‘careless to his mother.’67 Nowhere does Eliot pose a choice between caring for others and meeting obligations of

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(real) justice, and views that impose such a choice fall beyond the moral context of her novels. Both caring and justice lead to an overcoming of selfishness. In Scenes of Clerical Life, the fussy and crabbed Evangelical Christians are defended from contempt because they have the ‘idea of duty, that recognition of something to be lived for beyond the mere satisfaction of self ... They might give the name of piety to much that was only puritanic egoism; they might call many things sin that were not sin; but they had at least the feeling that sin was to be avoided and resisted.’68 In Silas Marner, the same self-overcoming is produced by an entirely personal affection. When Daniel Deronda tells Gwendolen that she needs to care about something beyond ‘small selfish desires,’ his advice is indifferent between universal projects and an interest in other individual lives.69 In Romola, Tessa, it is true, has an ‘ignorant lovingness’70 that stops short of any larger moral engagement (which makes her a fit companion for the justice-deprived Tito); but she is mentally a child, and so offers us no example of a morally adult person who perceives the concrete but not the general features of human obligations. Eliot invites us to think that the distinction is a false one. The Mill on the Floss, as noted above, does indeed depict a difference between a caring sister and a justice-obsessed brother; but one can hardly read the novel without feeling, first, that this division of sentiments is tragic, and second, that while Tom Tulliver embodies the punitive rigidity attributed to ‘justice’ thinking by its critics, his conception of the just is altogether absurd. It is, Eliot says, ‘boy’s justice’;71 and one notes that he entirely flunks the classic Rawlsian test of fairly dividing a cake, or, to be pedantically exact, a jam puff.72 Repeatedly, Eliot writes of the need to bring general duty and personal attachment together. Felix Holt, attracted to Esther Lyon, worries that a personal attachment would be an impediment to public duty,73 but comes to wonder if a man’s feeling for one person ‘might rush in one current with all the great aims of his life.’74 Likewise, Daniel Deronda hopes for ‘the very best of human possibilities ... – the blending of a complete personal love in one current with a larger duty.’75 In Romola, in her own voice, Eliot remarks that the fear of God may be necessary ‘until all outward law has become needless – only when duty and love have united in one stream and made a common force.’76 Reinforcing this is Eliot’s perception that to distinguish between caring for persons and caring for ideas has an element of artificiality to it. When Daniel Deronda says that ‘affection is the broadest basis of good in life,’ Gwendolen objects that he appears to care about ideas, and he replies ‘But to care

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about them is a sort of affection ... Call it attachment, interest, willingness to bear a great deal for the sake of being with them,’ and: ‘generally in all deep affections the objects are a mixture – half persons and half ideas – sentiments and affections flow in together.’77 What we think of people is affected by what we think of the general possibilities that they represent, and what we think of general ideas is affected by the people who represent them. This theme of uniting love with duty may be seen as just another of the ways in which Eliot’s work displays the influence of Comte, who saw the uniting of the two, through the communion of dutiful secular priests with loving housewives, as the moral basis of an ideal society. But Comte is much too willing to accept a division of labour between the two, the priests being the repositories of knowledge, the housewives the repositories of feeling. Eliot seems to adopt this view momentarily in Romola, when she draws a distinction between the ‘grand and remote end’ pursued by Savonarola and Romola’s ‘tender fellow-feeling for the nearest’ which leads her to be ‘blinded by her tears.’78 But this makes little or no sense given what Eliot herself has said about Savonarola. We cannot say that Savonarola knows, while Romola feels, for on Eliot’s own account Savonarola’s view of things is entirely corrupted by his inhumanity.79 To accept that Romola’s position was ‘blind’ would be to accept Savonarola’s manifestly defective view that justice can require the execution of the innocent. If that conclusion is only implicit (and hence challengeable) in Romola, it is explicit in Theophrastus Such. For there Eliot directly rejects the supposed opposition between just judgment and human sympathy. ‘A continually false judgment in human affairs is not due to that supposed intellectual narrowness which is imagined as coexisting with the finest rectitude and most generous sympathy: over the larger number of practical questions rectitude and generosity are themselves the light which widens the intellectual area. To define the boundaries of the emotional and intellectual in human life is as hard a problem as that which frustrated Shylock.’80 We should, then, firmly reject the antithesis of ‘rectitude’ and ‘sympathy’ as a way of giving a considered account of the moral conflict in Romola. Comte’s division of labour between all-knowing priest and all-sympathizing woman is best expressed in both the content and the form of his Catéchisme positiviste, a work which borrows the familiar catechistic question-and-answer format to explain the whole positivist doctrine. The woman’s conveniently non-probing questions are answered with huge condescension by the kindly and unperturbed ‘father.’ As far as the

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moral aspect of the doctrine goes, the message to the woman is clear: your role is to sanctify the domestic realm by your caring devotion to your husband and family. Women’s work is sacramental; and while women benefit, no doubt, from a clear understanding of the order in which they have a place, public issues play no direct part in their moral life. The dialogue between priest and woman is recalled perhaps most obviously (though much more agonistically) in Romola. But Casaubon in Middlemarch is of course also a priest, and his relationship with Dorothea is more pastoral than marital. In Daniel Deronda Gwendolen imposes a ‘priestly’ role upon Deronda, despite their closeness in age,81 and in the same novel Mordecai takes on the priestly instruction of his sister Mirah; in Felix Holt, Holt gives moral instruction to Esther Lyon. These relationships are various and have various outcomes, but what one can say about them all is that in none of them do things work out as the priest-figure expects and hopes, and that none are as unilateral as he wishes or demands. The problem with depending on someone else for one’s knowledge is, of course, that one has to know whom to depend upon. The main story in Middlemarch is, effectively, the working-out of this very deep paradox. Dorothea desires passionately to know, to live a life that is ‘rational’ as well as ‘ardent,’ and which, like Comte’s own moral cult, is in a functional sense ‘religious.’82 She wants there to be a felt connection between her own sympathetic nature and the broadest currents of life and thought, from which by convention women are excluded. She dreads a life that is ‘nothing but a labyrinth of petty courses, a walled-in maze of small paths that led no whither,’83 and she seizes upon marriage to the aging scholar Casaubon as an escape into a world of important things. That Casaubon’s work in comparative mythology could have accomplished this for her is inherently improbable; but in any event the work is hopelessly outdated, itself another labyrinthine dead end or maze. (The implied identification of her husband with the Minotaur reinforces this point!)84 Ultimately, ‘modes of education which make of women’s knowledge another name for motley ignorance’85 are responsible for Dorothea’s dreadful error, and the point is surely made that the caring person must be informed by her own knowledge, not by another person’s. The moral division of labour is, then, quite fundamentally rejected.86 In the case of Daniel Deronda and Gwendolen, the point is made that the priest-figure, too, undergoes education: ‘the coercion is often stronger on the side of the one who takes the reverence. Those who trust us, educate us.’87 The same might be said of the effect of Esther Lyon on

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Felix Holt. But perhaps the nicest subversion of the catechism scene is in Daniel Deronda, and occurs between Mordecai, the Zionist visionary, and his adoring sister Mirah. Imparting traditional wisdom to his sister, Mordecai tells a Midrash story which is supposed to show that women are ‘specially framed’ for caring love and self-sacrifice. In the story as he tells it, a woman who was in love with a king ‘entered into prison and changed clothes with the woman who was beloved by the king, that she might deliver that woman from death by dying in her stead, and leave the king to be happy in his love that was not for her.’ But Mirah instantly objects: ‘that was not it,’ she says; ‘She wanted the king when she was dead to know what she had done, and feel that she was better than the other ... [she] must have had jealousy in her heart, and she wanted somehow to have the first place in the king’s mind.’88 This unexpected gem of sexual politics transforms the priest/catechumen relation into one of human equality and mutual enlightenment. IV Eliot’s novels have, then, a good deal to say about the distinction between care and justice. For one thing, they suggest that the distinction draws force from our sense – intuitive or experiential or both – that people differ in their approach to moral issues, perhaps in ways that we might term ‘masculine’ and ‘feminine,’ although this coincides barely if at all with the distinction between men and women. But beyond that, they tend strongly to undermine dualities. They make it clear, for example, that the idea of justice is not affectless, but can be deeply moving, as it is for Romola, or Dorothea, or for Felix Holt, who says that the passion for doing what is right can become as ‘present to [the mind] as remorse is present to the guilty.’89 They remind us that caring can be ‘ignorant’ and destructive, and sometimes a pious cover for domination. They remind us, too, that not everything that claims to be just is really so, and that what wrongly claims to be just does not diminish the claims of real justice. They lead us to the view that on the one hand a concern for justice might elevate local obligations, while on the other a caring attitude draws upon a moral universal, so that the overly simple spatial orientation of the care/justice distinction is made altogether questionable. They show us that the desire to care for others and the desire to treat them justly both spring from a compelling – Eliot, like Comte, says ‘religious’ – sense of human solidarity; that one can contribute to human solidarity both by caring acts that, like Dorothea’s, are ‘unhistoric’

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but nevertheless contribute to ‘the growing good of the world,’90 and just acts that, as Romola says, are ‘good ... for the world’91 because they embody generalizable principles. Finally, as we have seen, they show that even if a distinction between care and justice can be made, it is undesirable for the features of the two to remain separate, that the differences must be reconciled personally rather than institutionally, and that ‘strong sympathies’ and ‘a supreme sense of right’ go hand in hand.92 But this conclusion may still leave the findings of section I of this chapter in a frustratingly stranded state. The conclusion cannot make the case for Eliot’s particularism simply evaporate. If Eliot insists upon ‘a supreme sense of right,’ embodied in imperatives of justice, how can she also insist upon the particularizing insights that cast basic doubt upon maxims and formulas? The answer that her work suggests is that we have come to pose questions in unsatisfactorily dualistic ways. This is evidenced, I believe, in Dancy’s reading of the passage with which we began. Eliot simply does not say that maxims are replaced by particularistic insights: she says that they are ‘hollow’ if they are not corrected by insights into the particular case – a correction that the most determined moral generalist could accept. We have to exercise ‘patience, discrimination, impartiality [NB]’ in applying our principles to cases, but nothing in that view undermines the importance of general moral principles at all. Between the concrete other, assessed entirely without benefit of principle, and the generalized other, assessed entirely without benefit of concrete understanding, stands what we may term the proximate other: the person who comes within reach of our help, and whose circumstances bring into play our sense of both general human need and its particular mediation. Nothing in Eliot’s work suggests that we should not see our ties to others as exemplifications of general duties; it tells us only that it is absurd to see general duties in the light of context-independent judgments. Proximity rather than specialness, then, is the operative element: see, among many other examples, Dinah’s (as opposed to Adam’s) care for Hetty in Adam Bede. Proximity – being ‘in rooms adjoining’93 – puts one in a position to offer care; and it also gives the opportunity to acquire the ‘growing insight’ that Eliot refers to in the passage with which we began, the insight that, in unravelling particularity, can make caring effective. The other striking example is the scene, mentioned above, between Dorothea and Rosamond in Middlemarch. For here too Eliot stresses the fact that Dorothea is powerfully aware that Rosamond is ‘close to her,’ and, explicitly generalizing the significance of this, Eliot refers to ‘the

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neighbourhood of danger and distress.’94 What we are called on to do, in responding to proximate others, is not in any sense opposed to universal or human obligation. We may refer back to an earlier passage in Middlemarch, where Dorothea remarks that local goodness is a step in or instance of a general ‘struggle with darkness.’95 And perhaps most important of all, we may see the conclusion here as one that is required by the remarks at the beginning and at the end of Middlemarch. Eliot’s remarks concern Saint Theresa, a woman who against all odds blazed a dramatic path in the public life of sixteenth-century Spain; the context or ‘medium’ for such spectacularly public success was not available to Dorothea, Eliot says.96 But at least one important possible implication of this judgment is that it is the ‘medium,’ not the value, that is variable. Perhaps, deprived of a medium for epic achievement in the traditional sense, one can still play a part in ‘home epic,’97 as Eliot terms it, in a phrase which finely encapsulates the fusion of the local and the universal. In support of this reading, we may refer to the dark night of the soul that leads Dorothea to her considered view of what justice demands. After a sleepless night, she opens the curtains and looks out on the small pastoral scene: ‘On the road there was a man with a bundle on his back and a woman carrying her baby.’ Eliot remarks that Dorothea ‘felt the largeness of the world’ and that ‘she was a part of that involuntary, palpitating life.’98 The essential perception here is that of universal human interdependence. The man with a burden, the (Madonna-like) woman carrying a baby, are cyphers for a ‘larger’ account of the constant and pervasive requirements of human life: the particular exemplifies the universal and is important for the universal elements that it contains; it has moral force as an emblem. Here Eliot is Comtean: ‘Humanity can often be better represented by a simple family,’ Comte wrote, ‘than by a vast association that corresponds to only one of its essential aspects,’99 and: ‘[Humanity] will always have as its symbol a woman of thirty years holding her son in her arms.’100 V This view, which presents special ties as a local application of general obligations rather than as a quite distinct category, is of course open to well-known basic criticisms. It is not always the case that the nearest person is in the best position to offer aid to the sufferer: Europeans may be in a better position to offer (some kinds of) aid to impoverished Africans than relatively less impoverished Africans are, and so it is im-

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plausible to represent local obligations as, simply, rational ways to give force to universal ones.101 These objections seem, however, to turn on two issues that, while undeniably important, are surely not exhaustive. One is the issue of expertise – the proximate carer may not be the best qualified. The other is the issue of resources – the proximate carer may not be the best endowed. But we may regard cases such as this as overriding, rather than as undermining, the case for proximity: that doctors rather than neighbours should give medical treatment, that the rich rather the poor should have their resources redistributed, are uncontentious claims that hardly disturb the general argument for the moral significance of proximity – they only supplement it. True, the proximate Samaritan may be medically incompetent: but it is still the case that she should summon medically competent help, and still the case that the most proximate medically competent person should respond. Why focus, though, on Dinah’s disinterested care for Hetty, rather than on Adam Bede’s? Dinah’s caring for her arises from religiously inspired openness to the suffering of those who are near to us – from Good-Samaritanism: and the moral force of the Good Samaritan parable is exactly that proximate ties are not special (in the sense that they depend on a particular agent-relative history), that they arise indifferently among those who happen to be near. Adam’s caring, on the other hand, arises from non-indifferent and indeed intense sexual interest. The reason to distinguish Adam’s caring from Dinah’s rests on a distinction between morality and love. That distinction cannot, of course, be at all bluntly made. For one thing, as Iris Murdoch pointed out, there is a very compelling resemblance between the ‘attention’ contained in love and the fundamental moral attitude, both of these containing a vivid and demanding sense of the reality of another person.102 For another thing, Kantians have laboured to dispel the myth that their important account of morality is rationalist in the pejorative sense of excluding affection: it requires only consistency with reason, they argue, not the exclusion of affect.103 Finally, and most strongly, J. David Velleman, seeking common ground between Murdoch and Kant,104 has argued that love can itself be ‘a moral emotion,’ in that it engages us to act ‘for the sake of’ another person and in recognition of his or her irreplaceable identity. But this of course depends on understanding ‘love’ in a certain way. Some kinds of desire in fact extinguish the identity of the desired object, reducing him or her to a substitutable item (as, notoriously, in the Freudian concept of ‘transference’); and often what is termed ‘love’ is a complex blend of

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recognition and extinction, in which the object paradoxically figures as irreplaceable and as replaceable at once. What Velleman terms ‘love’ is a matter of valuing others; it is the maximal form of the attitude of which respect is the minimal form;105 it occurs in both romantic and nonromantic contexts, though when it occurs in romantic contexts it occurs when ‘love has outgrown the effects of overvaluation and transference.’106 (In this, we may note, it at least resembles that form of friendship that Mary Wollstonecraft had hoped for when passion was ‘moralized into affection.’)107 It is up to readers to judge where Adam Bede’s feelings for Hetty Sorrel fall within this spectrum of relational possibilities: they seem palpably less evolved than Adam’s eventual love for and marriage to Dinah Morris;108 but in any event, surely it is clear that within this spectrum there is an important place for powerfully compelling but nonmoral affections (which, however, may always lead to moral choices). If in this way we can disaggregate concern for ‘concrete others’ into ties of moral proximity and of personal affection, or of some blend of the two, what is left over? Well, one very important thing that is left over, politically speaking, is the tie of shared nationality, which Daniel Deronda brings so much to the fore. Can we assimilate it to the tie of personal love? Or should we see it, rather, as a (large but still) local exemplification of a general duty? If there is anything in Eliot’s work that displays a non-universal yet still a moral tie then it must be this: an ascriptive tie, based not on proximity but on specialness, which, however, dramatically elevates one’s sense of duty. It is presented, as we have seen, as a ‘primary’ attachment; and yet it is justified, as we have also seen, as a contribution to a cosmopolitan project – nations have value because they bring something to the world at large. We may speculate that Zionism held such interest for Eliot, within the context of Daniel Deronda, just because it seemed to be the meeting-point between ascriptive and universal attachments, thus providing a kind of resolution of the dilemma in question. The particular and the universal ‘flow in together.’ That resolution is a troubling one from a perspective such as Edward Said’s, for the Zionist project assumes that ‘the East’ is at the disposition of peoples from ‘the North,’ that a European novelist can close her work by sending her young hero off, amid general applause, to work, in effect, for the dispossession of somewhat under-specified others.109 Some may feel that this is both too retrospective and too political a reading that stands too far outside the moral and aesthetic context of the novel itself: and I would agree. Nevertheless, the politics of the case poses an important question. Eliot can achieve moral and aesthetic resolution if she can

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attach Deronda to a political cause that overcomes the tensions between the personal and the universal, and between identity and the ideal: a cause that erases such boundaries. That cause would, I think, need to have a quite special character, to bring this resolution off; and the cause that Deronda commits himself to had this character, in Eliot’s mind and that of her intended readers, because it was the cause of a people with a richly particularized identity but who also served as a universal symbol of dispossession. This contributes over and above the stated theme, noted previously, that Jews like all nations have a particular contribution to make. Alternative endings (e.g. one in which Deronda decided – not entirely without warrant! – that his identity was essentially British, and went off to work in the Indian Civil Service) would surely fail to bring into play those elements of exile, endurance, and recovery, for so long items in a universal symbolism of collective loss and salvation, that Eliot can assume in her readers’ response. The result is that Eliot may have no generalizable conclusion to offer about the moral issues that are at stake in the discussion of nationalism. She draws on the ideas of kinship and even intimacy to describe what nations mean to people; she also feels the need, evidently, to set national attachments within a wider context of global obligation. She finds a resolution that is in a sense, and within her own moral world, too good – the movement for a Jewish homeland, a movement that springs from a history of densely woven belief which, as in the case of her more typically ‘pastoral’ settings, she enters with vivid and detailed attention, and which also resonates with universal meaning. It is a movement of constructive protest against prolonged exclusion and suffering. But it is too good in the sense that it may be a resolution with – even in context – only one perfect case: and so it does not help with the mixed and imperfect cases that comprise the norm, and that may generally defy perfect resolution altogether. Here Eliot leaves us without guidance. VI Since neither Eliot nor anyone else is a moral authority on these issues, that may not, however, matter. What matters is the example of strong and subtle moral reflection that she offers: and, it would seem, that reflection interrogates particularism, rather than justifying it, in telling us that the largest moral issues may be at stake in the smallest of our relationships. To sum up, her novels lead us to the view that small contexts modify our view of what is due to others, certainly, but that

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nevertheless something of general human importance is immanent in them; that there is no good reason to assign concern for small contexts to (allegedly) specially endowed caregivers, i.e. women; that it is part of a developed moral sense to take the largest context of moral concern into account. Deployed against social engineers such as Comte, Eliot’s message is de-particularizing in its tendency, in resisting any attempt to confine agents to merely local tasks. While it may be unusual to place Eliot in the company of social and political theorists, her work enriches that important branch of social and political theory that gives a central place to the question of the appropriate scale of attachment, even if, as the next chapter will illustrate, that kind of theorizing employs various idioms very different from those of the novelist.

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6 ‘Proudhonism’: Or, Citizenship without a City

George Eliot’s publisher induced her to write an appendix to her novel Felix Holt, an ‘address to working men’ that her novel’s artisan-philosopher hero could be imagined to deliver in the context of working-class enfranchisement. ‘It’s human nature we have got to work with,’ ‘Holt’ remarks in ‘his’ address, and he proposes a process of self-education that will help to make working men alive to ‘the truest principles mankind is in possession of.’1 That view contrasts, of course, with those of other nineteenth-century theorists who predicted a radical transformation of the human personality itself, a transformation that would at last dispense with what Marx termed the ‘muck’ of conventional morality,2 rejecting the cautious supposition that human nature would constrain all future possibilities, and in turn would need the constraints that conventional moral thinking had made familiar. But among those who would side with Eliot here is the (non-fictional!) French artisan-philosopher PierreJoseph Proudhon, who thought along similarly moralistic lines, to the great disgust, of course, of Marx, who saw in his unhistorical lack of relativity a symptomatic neglect of the depth and force of change in human social life – a clear demonstration of the ‘poverty of philosophy’ in the face of dynamic social and economic change. Positing a movement that ‘differs from all previous movements,’3 one that would put an end definitively to human self-alienation, Marx could have only a dismissive attitude to any notion of permanent moral constraints on social and political organization. It has not commonly been noticed that especially in Proudhon’s later writings – perhaps surprisingly – this moralism took a particular form: a sort of moral republicanism in which citizenship becomes a basic moral category. Travelling along paths of thinking quite different from Marx’s, .

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he came to think of the moral problem as one not of ‘alienation’ but of corruption: that is to say, he came to believe that the institutions of common life should be designed in such a way as to withstand certain permanent human temptations, particularly the temptation to forget the goods that we share with others. So there is to be no definitive overcoming of the past, no transformation of human nature; institutions must be moulded to it; and, moreover, the institutional solutions turn out to have much in common, in broad terms, with classical republican solutions. To the surprise, perhaps, of those who would summon up walls of fire between Proudhon and the traditional theory of the state, Proudhon (as I shall try to show) drew systematically on the republican tradition for both the problems and the solutions that his later work discusses. Yet these proposed solutions are projected into a future in which, it is claimed, states, in their modern form, will have ceased to exist; a future in which humans are to form common institutions at a variety of different spatial and functional levels, none of which will enjoy the coercive and final authority of the modern state. Proudhon calls this ‘federalism,’ but obviously it goes beyond the territorial division of responsibility embodied in federal states, for in those states there is an overall and authoritative constitution, interpreted by a federal court, and amendable in one way or another by the whole federation; while what Proudhon has in mind is a multi-centred regime in which overall authority has entirely evaporated. Hence what is termed ‘Proudhonism’ in this chapter: the idea that ‘citizenship’ can survive the abolition of ‘cities,’ understood as sovereign political orders. That idea is often developed with little reference to Proudhon himself, or sometimes with no reference to him at all, but it is appropriately named for him because he was the first (to my knowledge) to evolve it. The idea, in its weaker form, is that the values of citizenship can be realized without there being a single ‘city’ or a single locus of political identity; in its stronger form the idea is that the values of citizenship can in fact be realized only if we dispense with such a single locus. Whether weak or strong, the idea finds expression in a political vision of multiple loci of attachment, ‘citizens’ turning to one locus for one purpose, another locus for another purpose, and not identifying with any one rather than any other; or perhaps they identify with one or other at different times. This idea has the obvious attraction of retaining some powerful and hallowed values – those of civic loyalty and virtue – while fundamentally undermining an institution through whose medium civic loyalty has done such hideously violent harm when

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it has taken an aggressive form. The idea promises loyalty without exclusion, virtue without fanaticism – the good features of citizenship without its destructive side. So no wonder it has had passionately committed adherents, who in various ways have called for the dismantling of the state. As we shall see even in this highly selective discussion, the idea has proved attractive in several very different normative contexts: Proudhon’s own concerns were not those of English pluralists such as G.D.H. Cole, and neither Proudhon’s nor Cole’s concerns were those of later (postRawlsian) theories of transnational justice. The point of discussing these different views together is not at all to deny their many basic divergences, but to focus upon a common implausibility – or at least a common question. The ideals of citizenship arose in political circumstances in which civic activity was focused on capturing or else resisting a shared site of authority, in the face of tyrannical counter-claimants. Virtues were important because they contributed to one or other of those ends, and were valuable because those ends in turn were to be highly valued. It is unlikely, on the face of the matter, that the values involved will altogether easily survive the dismantling of their central institutional assumption. And this chapter tries to show why they do not. Nothing in this chapter is meant to discredit the projects of Proudhon, Cole, or contemporary theorists such as Thomas Pogge: the idea is only to show that the ideals of citizenship, specifically, are not available to support their various projects, and thus, by way of contrast, to show what those ideals can support. I Proudhon is best known for the idea of a system of production and exchange relations that he proposed as an alternative to the capitalist economy.4 This system, which he termed ‘mutualism,’ rested on two features: the worker-owned cooperative enterprise, and a mechanism of exchange based on labour time.5 Rejecting both the uninhibited competitive pursuit of profit approved by capitalist theorists, and the potentially tyrannical state control of economic life proposed by some socialists, he wanted a highly decentralized society made up of self-governing enterprises, engaging in horizontal transactions constrained by a principle of justice. That principle rested on the normative connection between the activity of labour and the autonomous personhood of human beings, and therefore (he believed) required that goods be

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exchanged on the basis of the average labour-time needed for their manufacture, as a way of respecting human equality. Proudhon’s later writings remain faithful to that social and moral vision. But if the centre of his vision lay in the mode of economic organization and in relations among functional units, he came eventually to see that the brute facts of human territoriality could not be ignored; that territory-based organizations contained a logic and problematic of their own that required their own discussion; and that economic mutualism needed the defence of political institutions. It is here that ‘federalism’ enters the picture, and with it the language of republican political theory, the language of ‘virtue’ and ‘corruption,’ put to use now, though, and with great originality, against the state. There are apparent echoes of Montesquieu’s seminal discussion of ‘confederation’ in Spirit of the Laws. While republics can maintain their ‘virtue’ only if they remain small, small states risk military extinction by large ones; but small republics can (partially) combine with one another, and the resulting confederation ‘peut se maintenir dans sa grandeur sans que l’intérieur se corrompe.’6 Proudhon, it is true, is concerned with exactly the reverse process – the dismantling of large states rather than the combining of small ones – but his concern is likewise with grandeur (or scale) and ‘corruption.’ Only on a federal basis can we institutionalize relations of interdependence on a scale much larger than that of the ancient city-state, without undergoing the corruption which is ‘the soul of power’ in the modern state.7 Reducing the citizens to passivity, turning them into dependent clients of government, the modern state destroys all possibility of ‘civic spirit,’ the spirit of personal initiative and local responsibility.8 Proudhon’s recovery of this value brings into play all the central themes of the republican tradition. In the name of protecting civic independence, he revives the demand for militia forces in place of potentially repressive standing armies. The deep suspicion of executive power surfaces as a hatred of bureaucracy – the very existence of public functionaries, he says, is a threat to the survival of a self-governing society. Even the hallmark appeal to ‘ancient principles’ finds a place, for Proudhon’s forward-looking decentralist vision is sustained by a backward-looking myth of ‘Gaul,’ imagined as a kind of federation of self-governing provinces, tragically destroyed by ‘Roman’ centralization. Above all, perhaps, a very traditional political science reappears in a call for prudence, understood as the capacity to take the long view and to avoid short-term temptation. Imprudent and ‘forgetful’ citizens, ‘ignorant’ of the long-term requirements of order,

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face ruin, unable to master the flux of change; and the modern state, in creating (‘terrifying’) mass publics given to excited and superficial judgments, also creates citizens unable to sustain political order.9 A decentralized federal order, in which smaller publics make judgments guided by concrete local experience, will put an end to the instability of mob rule, and also remove the levers of power from potential mob control. Perhaps the biggest surprise, for readers familiar with the earlier and more widely read Proudhon, is the resurgence of very long-standing ideas about the connection between property and political freedom. For classical republicans, owning property was a necessary incident of citizenship because it enabled independence and also gave the owner a stake in maintaining the republic; while Proudhon, of course, is best known for his reductive and hyperbolic aphorism, ‘Property is theft.’ Now, however, he says that the masses’ disposition to tyranny springs from their lack of property,10 and also contends that the propertyowning classes have always been the source of political liberty. But the paradox is only apparent. Like Marx in the Manifesto, Proudhon draws attention to the destruction of property brought about by capitalist society itself. The liberty-promoting and property-owning middle class, he says, has ceased to exist: it has been replaced by a sort of new feudalism of bankers (or by finance capitalism, as it was later termed). This raises the question of the social basis of any future liberty-promoting order; and it is here that Proudhon’s vision of a society of self-owned producers’ associations comes into play. That new form of property, he maintains, is the only possible replacement for the vanished bourgeois order, if we are to avoid the politically stifling concentration of wealth that capitalism has brought about, and over which state socialism would be no improvement. So here, thanks to an interesting argumentative turn, the proposed economic organization comes to have a double significance: not only is it the concrete embodiment of a theory of justice, it is also the heir to a long-standing tradition of argument that connects the dispersed ownership of property with the possibility of freedom. There is no question, however, that if we try to assess the relation between Proudhon’s political theory (‘federalism’) and his economic theory (‘mutualism’), it is the latter that must have normative priority. In connection with the theme of property, it is true, the mutualist economy figures as the social basis of a politically free federal society; but if we ask in turn why a federal society is justified, the answer is that it is the only political form that can protect the just order of economic mutualism

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over the long term. The conservative capacity of federalism is valuable, after all, only if what it conserves is valuable. And this leads us to a curiously abbreviated and defensive view of politics. The dispersal of powers among an indefinite number of levels – much like the constitutional division of powers among the various functional components of government – protects us from tyranny; but it takes as given the justice of the order that it protects, and so falls short of a more robust idea of politics as the forum in which issues of justice are themselves determined. Is this an issue in evaluating Proudhon? Alan Ritter, in a 1969 book that remains the most systematic treatment of Proudhon’s thought, objects to the mutualist ethic on the grounds that it violates the basic commitment to autonomy. It implants a ‘distributive’ principle that agents are obliged to accept as a measure of their worth, whatever their own view of the matter. If goods are to be exchanged on the basis of the average labour-time needed for their production, then obviously those who produce faster than the average will be more highly rewarded than those who produce at or below the average. Proudhon, Ritter objects, ‘has recommended a distributive principle – to each according to his productive contribution – that on his own reasoning must entail degrading distinctions.’11 Now this may be to saddle Proudhon with a more strictly libertarian commitment than his writings, on balance, require. It is certainly a very demanding idea of liberty that requires each person to be treated in accordance with his or her own personal conception of justice, and social and political schemes, it might be objected, are entitled to prescribe interpretations of autonomy that on their own justificatory terms are reasonable. But all the same, one sees Ritter’s point. Proudhon’s federalism provides a powerful mechanism for rendering permanent a mode of economic organization that federal citizens are, apparently, to take as given. It celebrates as ‘virtuous’ anything that supports a particular and contestable idea of economic justice, and condemns as ‘corrupt’ anything that undermines it. And so, while retaining the valorizing language of political tradition, it actually removes from public organization one of the capacities central to the justification of politics: the capacity to make authoritative judgments about ‘what is just and what unjust,’ and to exercise reflexive power over society in light of its judgments. To suppose that each citizen can be treated by others according to his or her own personal conception of justice is to entertain libertarian utopianism; but it is not utopian to recognize that just treatment is a deeply contested idea, or to expect that public institutions will provide a space both to contest it and to act on political resolutions of debate.

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II G.D.H. Cole was ‘the theorist in the history of political thought whose proposals most resemble Proudhon’s.’12 Cole was a political theorist noted particularly for his scholarship on Rousseau, and (together with J.N. Figgis and Harold Laski) was one of the most prominent intellectual leaders of the school of ‘pluralism’ in its English sense: a movement of thought that set out to replace the state with multiple associations, none of which would enjoy supremacy or ‘sovereignty’ over any other. Cole’s own particular form of this idea was developed as a (very selective) recovery of forms of functional (as opposed to territorial) association that had flourished in the middle ages, that is, professional guilds – hence the name for the movement which Cole advocated, ‘Guild Socialism.’ (His approving attitude to the medieval period certainly contrasts with Proudhon’s attack on the new ‘feudalism.’) In his first writings on this topic he had proposed a scheme of organization built around the structure of production. The unitary state, he argued, gave expression only to those interests that we share, that is (he says), our interests as consumers. As producers, we have highly differentiated interests, arising from our diverse economic and social functions, which cannot possibly be given fair or effective expression by a state: ‘Guild Socialism’ was therefore to be a form of organization that comprised pyramids of producers’ associations linking the individual enterprise to a nation-wide system of coordination and planning. A vestigial ‘state’ remained only to give effect to our common interests, as consumers, in efficiency, economy, and service provision. But in a note added to the third edition of Self-Government in Industry, Cole indicated that his thinking on the state had changed.13 The case for decentralization applies to the sphere of consumption no less than to the sphere of production, he said; and in Guild Socialism Re-Stated, published in the following year, this thought was given careful and detailed expression. Alongside the pyramid of producers’ associations there was to be a pyramid of territorially based associations, linked to the producers’ pyramid at several points by formal institutional means.14 Quite remarkably like Proudhon, then, Cole was a late convert to the importance of territoriality. Like Proudhon, he came to think that a decentralized and producer-controlled economy required as its political complement a territorially based form of association resembling federalism. Like Proudhon, moreover, Cole identified his federalist proposal with a renewed assertion of the values of ‘citizenship’ – ‘an active and not merely a passive citizenship’15 as distinct from the ‘mainly illusory’

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citizenship offered by the modern state. Evidently, though, citizenship is no longer to be located within a single institution. It is to be located in the whole ensemble of institutions, functional and territorial, for it is only the ensemble as a whole that captures the complex of interests important to our common life. Cole’s proposal avowedly transcends any public-private division of the kind familiar in capitalist systems, and envisions the operation of a ‘civic spirit’ in ‘any and every form of social action,’ not merely in a special zone termed ‘political.’16 So again, then, there is to be citizenship – but no city. It is particularly interesting that Cole should believe that his radically decentred version of citizenship was continuous with – perhaps even required by – the most famous modern understanding of the civic ideal, that is, Rousseau’s. On most readings, after all, Social Contract draws a sharp line between public and private, telling us that the former should preoccupy us at the expense of the latter and also that we should take elaborate steps to protect the former from the influence of the latter. And Political Economy tells us pretty directly that private and public virtue may not coincide: the devout priest, the brave soldier, the zealous senator, may yet be a bad citizen. In performing particular functions well, then, one might still badly fail the public-interest test. In Cole’s social vision, however, it seems to be just in the performance of particular functions that one’s public-interest contribution lies. Whereas Rousseau complained that ‘we have physicists, chemists, geometricians, astronomers, poets, musician and painters in plenty, but we no longer have a citizen among us,’17 Cole maintained that ‘democracy in industry and in every sphere of social life has for its supreme justification its power to call out in the mass of men the creative, scientific and artistic impulses which capitalism suppresses and perverts, and to enable the now stifled civic spirit to work wonders in the regeneration of human taste and appreciation of the good things of life.’18 Here, surely, we have two very different ideas of what ‘civic spirit’ is, and two very different articulations of the relationships between economic and civic life. But Cole confronts this difficulty head-on, and insists that Rousseau’s sharp line between public and private is both incidental and dispensable. Here too his thinking is remarkably Prodhonian, in adopting (some of) Rousseau’s basic premises while rejecting his statist conclusions: ‘the general will’ is not to be politically embodied but is to be diffusely expressed in all the arenas of life. Rousseau rejected partial associations, Cole believes, only because in the circumstances of his time they embodied social and economic privilege, and the democratic state,

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at the time, was the sole bearer of the alternative possibility of equality. There is no inherent reason, Cole maintains, for believing ‘the general will’ to be embodied only in public institutions and not in partial ones: it just depends on circumstances, and so Rousseau’s idea of citizenship comes loose from the state and is available for reassignment elsewhere.19 Whether or not Rousseau’s theory lends itself to this adaptation, and whether or not Cole’s project succeeds as an adaptation of Rousseau, are questions set aside here. What the present topic requires is an account of Cole’s institutional scheme: and this derives largely from Rousseau’s critique of ‘representation.’ One of Rousseau’s objections to the modern state was, of course, that it took legislative power away from the people and assigned it to representatives; but one person, he objects, cannot ‘represent’ another person’s will. Cole takes this to mean that one person cannot represent another as a whole person, as representatives in the modern state claim to do, but that Rousseau’s critique supports the possibility of representing definite capacities or facets of persons. The citizen, Cole says, ‘should be called upon, not to choose someone to represent him as a man or as a citizen in all the aspects of citizenship, but only to choose someone to represent him in relation to some particular purpose.’20 Cole’s whole scheme of institutions flows from this belief. No single institution can claim to represent the whole person; no single capacity or aspect exhausts the whole individual; therefore, multiple ‘representations’ of civic identity must be provided; and in place of a state, we are to have a complex of institutions the interplay of which is to give effect to something that we could properly call a general will. Cole’s scheme provides for the expression of multiple wills or interests under two broad headings, and requires these two modes of expression to seek accommodation at successive organizational levels. The factory, workplace, hospital, school, or theatre is the smallest association in which individuals find an identity and acquire an interest as producers of goods or providers of services. The ward (precinct) in a city, or the rural village, is the smallest territorial entity in which individuals come to have specific interests simply by virtue of living in a certain place. The workplace and the ward, therefore, are to serve as the self-governing units of most immediate importance to people’s lives, and also as the foundations upon which larger representative structures are built. First at the municipal level and then at the regional level, representatives elected from both functional and territorial constituencies sit together as the ‘communal’ authority. At the national level, general authority is exercised by a ‘National Commune,’ elected by functional constituencies

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demarcated on the basis of product or service, and the territorial regions. A basic assumption of this scheme, as we have seen, is that only aspects or facets of individuals, not whole individuals, can be represented. So one’s interests as a farmer or doctor or teacher can be represented, as can one’s interests as the consumer of particular services, and all of these interests take on a different character at different levels of organization. But what seems to be left out is the possibility of representing general attitudes, attitudes that do not concern the promotion of some aspect or facet of one’s life but which concern the patterns of life that are to prevail throughout a whole society, patterns that individuals may want to advance or resist on grounds of general principle or ideal. What is the producer’s view, or the consumer’s view, of capital punishment? Of same-sex marriage? Of blood sports? Of humanitarian interventions? The missing element seems to be what is generally called ‘public opinion,’ that is, opinion which in its meaning both comes from and refers to members of a public with a common stake in the way in which the terms of their association are to evolve, or the commitments that they are collectively to make. Public reason, Rawls says, is, in part, the reason ‘of ... citizens, of those sharing the status of equal citizenship,’ taking as its subject ‘the good of the public.’21 Can those requirements be met in a functionally segmented polity, in which a demand, to be recognized, must be a functional one? Two examples may suggest the gap in Cole’s scheme here. The first concerns his view that the interest taken in the production of goods, by producers and consumers respectively, is capable of a simple exhaustive division. The producers are interested, he says, in the process of production, ‘the amount of freedom at his work which the worker by hand or brain enjoys.’ The consumer, however, ‘is thinking mainly of the quantity or quality of goods supplied, of the excellence of the distribution, of the price of sale,’ considerations held to be ‘in essence distinct’ from the producers’ concerns.22 Because of this demarcation, conflict between producers and consumers can be eliminated as long as the interests of both groups are adequately represented. But it is not at all clear that the producers’ interest would terminate at the factory gate. Especially if their interest is not narrowly selfish but is, as Cole says, an interest in ‘service,’ they may well interest themselves in the social utility of their product, and their view of that may not of course coincide with consumer demand. Or they may, on principled grounds, hold views about the relative importance of full employment and of efficiency, or of stability and of

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innovation, which differ from those of consumers. But it is not as producers’ demands that such views should be given public status. They should be given public status on the basis of the two Rawlsian criteria quoted above. The second example concerns Cole’s remarks on the rewards of labour. Initially, he says, Guild Socialist society would continue to operate a system of differential rewards for the various grades of skilled and unskilled labour. He expresses his own preference for equal reward, and predicts that this principle will come to be adopted as members of society acquire a stronger sense of solidarity.23 But what seems overlooked here is the fact that principles of distribution, egalitarian (however interpreted) or otherwise, may be so deeply held that groups or movements are convinced of their moral rightness and may come to demand their adoption. The groups making these demands may not coincide at all with any of the officially sanctioned constituencies of Guild society, and the legitimacy of the demands has nothing to do with the constituency that makes them. There is at least no reason to think that a functionally organized society can settle such matters better than a democratic state, and at worst there is the possibility that movements of general opinion, making demands that may conflict with organized interests, may find it harder to find a foothold in a society in which all demands have to find expression as demands of one group or another. Rather as in Proudhon, the recovery of territoriality seems to fall short of recovering the central feature of states, that is, their importance in forming and advancing the general views which societies reflexively arrive at about themselves. From a political and democratic point of view, we may see territory as a sort of randomizer. It associates together people who have neither any prior shared commitment nor any preestablished goal, and who therefore face the task of reaching agreement about how to proceed; a task that unfolds unpredictably and outside preestablished constituencies. III This chapter’s third topic arises in yet another context, that of the theory of social justice. At least since Brian Barry’s book-length critique of Rawls, The Liberal Theory of Justice,24 egalitarian theorists of justice have insisted that a global frame of reference – as opposed to a national one – is essential to understanding the claims of equality. If our concern is to remove unjustifiable or arbitrary inequality, then high on our list or

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probably even at the top will be the matter of the global maldistribution of wealth: if the principal determinant of economic well-being is one’s place of birth, then place of birth is among the things that should be veiled from us in a Rawlsian test. Not knowing in which country we were to be born and (in the normal case) to spend our lives, what requirements would we come up with for the global redistribution of wealth? The veil-of-ignorance test should, then, be run globally, and if Rawls’s general argument is right then we would be especially concerned about the prospect of living in the worst-off country, and so would agree only to degrees and kinds of inequality that would have the effect of benefiting it. The wealth of rich countries would be justifiable only if it could be shown that the structures and processes that generated it also made the poorest countries better off than they would otherwise be. It goes without saying that it would be sheer fantasy to suppose that the existing global distribution of wealth would pass that very stringent test. The critical theme of Barry’s compact and forthright chapter was taken up at greater length by Charles Beitz in Political Theory and International Relations. Further globalizing Rawls’s argument, Beitz set out two distinct reasons for rejecting the domestic-case constraint that Rawls adopted in Theory of Justice. The first draws upon and extends the ‘natural lottery’ by which, in Rawls’s view, talents are assigned. Whether or not one has talents that are highly productive is an arbitrary matter, and so what happens to the fruits of one’s talents – whether they go to you, or to others – is something that is open to collective decision. In just the same way, Beitz argues, the possession of natural resources by nations is an arbitrary matter.25 The nation that happens to own a resource, for reasons of mere geography, has no paramount moral claim to enjoy the wealth deriving from it, any more than an individual has a paramount moral claim to exclusive enjoyment of the wealth deriving from her talents; and consequences for redistribution likewise follow. Focusing on the natural lottery question, pursuing an analogy between the arbitrary possession of talents and the arbitrary possession of natural resources, takes some justificatory weight off another Rawlsian theme, which we might term the ‘joint product’ theme, also developed by Beitz.26 On that theme’s argument, what we produce in association is greater than the sum of the things that we could produce in isolation, and so the joint product of our association is to be allocated in accordance with our common decision. That argument, of course, applies only in the case of agents who can be said to be ‘associated,’ and while the scope of that term may be indeterminate it is clear that the argument assigns us no

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duties with respect to people with whom we have no economic association, such as (at the time of writing) famine victims in the closed economy of North Korea.27 The merit of the former, ‘natural lottery’ approach is that it avoids morally uneasy qualifications of this kind: it posits the globe’s resources as the resources of humanity at large, regardless of the particular kinds of associative interdependencies that happen to have arisen within it. Very interestingly, however, Thomas Pogge’s approach to ‘realizing Rawls’ takes exactly the opposite tack, rejecting the ‘natural lottery’ theme while embracing (a version of) the ‘joint product’ theme.28 The move from the natural lottery of talents to the natural lottery of resources, Pogge believes, makes an illegitimate analogy between the individual case and the collective case. Individuals, he argues, retain control over the capacities that they have received from the natural lottery: they can use them or not as they see fit, for they are not a common property; but the rewards that individuals are to receive from them are subject to distributive constraints. In the collective case, however, the distributive argument goes deeper. While an individual’s possession of her own talents is something that basic human respect leads us to recognize, a country’s ‘possession’ of its own resources is itself something requiring justification in distributive terms; and in a highly interdependent world economy, resource-rich countries can claim possession of ‘their’ resources only if their possession meets the appropriate criterion, i.e., if national ownership of resources tends to the advantage of the worst-off national participants in the global economic scheme. Our obligations, then, on Pogge’s argument, are to other participants in schemes of relations which we share in and support.29 The rights of others (rights against us) are triggered only in the case that we are participating in a scheme of relations that affects them, in contradistinction to a theory (such as Henry Shue’s)30 that assigns a duty to respect rights regardless of any questions of causality at all. This has the merit, Pogge believes, of relying only upon a notion of negative rights (or rights against harm), without introducing ‘always contentious’ ideas of positive rights: for the rights that we are called on to observe are only rights not to be harmed by a scheme of relations that others actively support, and the duties that are brought into play are only the duties not to support schemes of relations that harm – or cause more harm than alternative feasible schemes would. So, what would be a just scheme of relations among agents within a common scheme? It is at this point that Pogge’s argument takes

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Prodhonian and Colean turns that call for discussion here. Needless to say, he does not invoke either Proudhon or Cole. (He invokes Kant.) But if anything, that only makes the resemblances more interesting: if proposed schemes of political relations have something significant in common despite their different avowed origins or influences, then it is all the more important to take them seriously and reflect on them in a critical way. The proposed scheme particularly recalls Cole and the English pluralists, first of all, in rejecting the idea of sovereignty developed by Bodin, Hobbes, and Austin. It is simply false, Pogge says, that in every system of political relations there must be a single supreme and omnicompetent authority. Experience of federal and constitutional systems shows that authority can be divided, limited, and jurisdictionally specialized. Moreover, experience also shows us that ‘sovereign’ states are dangerous things. Pogge convincingly lists four reasons for being suspicious of sovereign states: the immense dangers of military competition, their capacity to repress their own subjects, the resistance that they offer to global economic justice, and their inability to deal with ecological effects that spill over their boundaries. These considerations do not, however, justify a move to a comprehensive world-state, particularly because its potential for oppression is even greater. Rather, they lead us towards a vision of a ‘multilayered’ scheme of divided responsibility. In the manner, now, of Proudhon, we are to imagine a scheme in which allegiance is distributed between ‘neighborhood, town, county, province, state, region, and world at large. People should be politically at home in all of them, without converging upon any one of them as the lodestar of their political identity.’31 Recalling, of course, the ancient idea of mixed constitutions – spatially reconceptualized – the scheme requires us to trust no particular level of agency but to see merit in the competition among their demands.32 The case for a multi-layered scheme is defended by means of a detailed and scrupulous argument which recognizes the claims of both centralization and decentralization. Because some objectives (such as securing global economic justice) involve creating supra-state agencies, while other objectives (such as securing democracy) involve strengthening sub-state organizations, a multi-layered scheme, in which some powers move up from the state, while others move down from it, is the natural result. There is a further Prodhonian element in the positive argument for the local character of democracy. Like Proudhon, Pogge maintains that there is a higher level of reality-testing within communi-

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ties that are close to the consequences of their decisions than in larger groups whose connection with outcomes is more remote. He explains this in a particularly interesting way, by means of a distinction between ‘morally closed’ and ‘morally open’ decisions, that is, decisions to which there is one morally right outcome and decisions whose outcomes are left partially indeterminate by moral considerations. With regard to morally closed decisions, outsiders are less likely to reach a reliably informed decision than those who have local knowledge. With regard to morally open decisions, on the other hand, it is important that everyone have an opportunity to shape the discretionary conditions which most immediately affect their lives.33 This, however, invites a shift of perspective from moral to political philosophy. From the standpoint of moral philosophy, the best answers available either close decisions or leave them open. It is characteristic of politics, however, that agents disagree about whether decisions are morally open or closed, and exactly that disagreement is in fact the core of the most divisive political conflicts. As a result, when a decision has been made, those on the losing side have to accept that (for the time being at least) a matter that they regard as morally closed is to be left open to personal choice, or else that a matter that they regard as open to personal choice is to be treated as though it were morally closed. It follows that the outvoted have to accept laws and policies which violate their strong moral beliefs – again, for the time being only, but that time may be very long. So an account of democratic constituencies must give weight not only to the distinction between closed and open decisions, but also to the practical contestability of that distinction itself. What, then, can sustain democracy in the face of the moral tensions arising from it? One standard answer, favoured by nationalists, is that because democracy imposes moral strains of the kind just mentioned it requires a robust sense of underlying shared community. We can accept losses – no doubt within certain limits – at the hands of those whom we regard as fellow-nationals, united with us by ties of identity and history. Such an answer is quite obviously unavailable within a scheme that vertically disperses identity so that no one level of attachment has any privileged place in one’s life, different attachments having salience in relation to different spheres of interest or concern. Moreover, it is ruled out from a moral point of view in a human rights–based model in which ‘commonalities of language, religion, ethnicity or history’ can have no primary role in determining political identity:34 they acquire a role only through

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the political choices of individuals, so the nationalist argument puts the cart of identity before the horse of choice. What of a second standard answer, based on citizenship? This proposal is based not on prepolitical factors such as history or culture but on the circumstances of political democracy itself. In taking part in a democratic process, each person implicitly relies upon a scheme of authority that will impose the winners’ preferences upon the losers. Simple reciprocity dictates that, if I rely on this scheme as a winner or prospective winner, then I must accept it as a loser or prospective loser; otherwise, I am claiming some absurd licence to make a privileged exception of myself. This is an important and powerful argument, because its premise is not some optional or contestable ideal that may or may not persuade me, but a fact about my own behaviour and what it implies. Securely grounded in this way, it may supply a particularly convincing foundation for otherwise notoriously contestable rights, if these can be shown to be implications of the agent’s own practice. The argument is different, it should be noted, from an argument (of the kind employed by Pogge and others, such as Onora O’Neill)35 based on the facts of interdependence. On that argument, as we have seen, relations of causal influence are enough to bring rights into play: it is the fact that A affects B that gives B rights against A, and if there are universal human rights that is because the whole world has been drawn into a single scheme of production and exchange in which those who have cannot excuse themselves of responsibility for those who have not. The citizenship argument is different. It is not that A affects B, but that A relies on B’s acceptance of certain practices in her dealings with him, and therefore cannot escape the claims of those very practices in her own case. What may raise questions for Pogge’s scheme is that the citizenship argument applies only in the case of two or more agents who have claims upon one another by virtue of participating in a common allocative framework. It is because I expect the framework’s practices to bind you that I must accept that they bind me too. The argument does not apply across frameworks. If, then, political issues are dispersed among many frameworks, considerations of reciprocity become correspondingly weaker: for they apply only in the case of decisions made within the same political forum. I have a reciprocity-based reason to accept the decisions made in forum x, on whose members I wanted to impose my own preferences, but that gives me no reason at all to accept decisions made in forum y. Reciprocity considerations would apply if the normative work were being done by a disembodied political principle (‘everyone should

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abide by democratic decisions’), but, as we have seen, the ‘citizenship’ argument’s work is really being done by an implication of one’s own practical commitments, not by principles unembedded in one’s own practice. Matters would admittedly become much more complicated if we imagined the various political forums to be arranged in a nested manner, so that, say, forum x would be contained within forum y, in such a way that the reciprocity argument could effect what we may call moral transfers from y to x. Then my participation in the hope of winning in forum y should be set in the same account as my loss in forum x: what would matter would not be the fact that the constituents of x and of y were not the same, but the fact that I had an opportunity to participate, as a constituent of both. But even that solution runs into an objection, arising from what we may term the labile character of identity. Glasgow is nested within Scotland which in turn is nested within Britain: but the secondlevel identity may be insignificant in relation to the first, or the thirdlevel identity may be insignificant in relation to the second, from the agent’s point of view. The opportunities to participate, then, may be very unequal in value, so that the idea of moral transfer, from level to level, is not to be relied upon. Potential victory in a forum beyond (or beneath) my concern cannot be entered in the same moral account as potential loss in a forum which I care about deeply. Might we say, following up on the logic of Proudhon’s scheme, that there is some merit, in a non-hierarchical multi-level system, deriving from the element of competition? Whereas formal federal systems set out to assign jurisdictions clearly to each level of government, a Prodhonian scheme may prefer jurisdictional fluidity. That way, citizens retain maximum autonomy, in reserving control not only over decisions but over the fora in which decisions are made. Fear of jurisdictional loss would, after all, motivate accountability very powerfully. Here is one of the very few points on which we may see a certain convergence between Proudhon’s ‘federalism’ and the very different federalism of Hamilton. In the famous seventeenth of the Federalist Letters, Hamilton argues that federalism benefits from what he terms ‘the rivalship of power,’ different levels of government competing for the ‘affection’ of citizens subject to divided jurisdiction: he refers to the rivalry between kings and barons in feudal Europe, and clans and government in Scotland after the Act of Union, two situations in which, Hamilton believes, rivalry allowed citizens a choice to decide where to cast in their lot.36 I am not sure if an argument of this kind can survive the need for clarity of jurisdiction that

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is likely to be demanded for multi-levelled systems (particularly if existing polities are to surrender powers to them). But even if arguments of this kind could have a place, they would best be viewed as arguments about the conditions for democratic efficiency, not as arguments that bear on the question of obligation. A third possibility – if nationalism fails, and citizenship leads to difficulties – is to assume that justice alone will motivate. Neither nationalism nor civic reciprocity is needed, let us say, in order to buttress our obligations. It is enough that they are obligatory. We are (initially at least) in a world of ‘ideal theory,’ which assumes perfect compliance, and if imperfect compliance is to enter the picture it is to do so at a later stage, and in a second-order way – it will tell us what compromises are needed. I do not have the impression, however, that this is what Pogge’s article is trying to lead us to. It is avowedly non-Utopian, claiming, for example, that it is a merit of the multi-layered model that it could be achieved incrementally, by moving powers up or down from the state, without the need for any improbable cataclysmic assault on the modern state itself. Whether this non-Utopianism is realistic or unrealistic I cannot judge. But in any event, the ‘ideal world’ exit is not one that is available to Pogge’s theory even in principle. As we have seen, the theory is a version of ‘institutional’ cosmopolitanism, which asks us to think in terms of possible global schemes or regimes. Unlike ‘interactional’ cosmopolitanism, in which every individual counts directly, institutional cosmopolitanism requires us to think about the justice of the particular general scheme that we support, in relation to other feasible schemes: ‘harm,’ as we have seen, is defined as loss that could be avoided if another feasible scheme were adopted. If harm could be prevented, human rights promoted, better under some feasible scheme other than the one that we support, then we have a duty to support that alternative scheme instead. But of course, ‘feasibility’ plays a crucial role here. While we can imagine all kinds of possible worlds in which human rights would be promoted better than they are now, the number of feasible such worlds is rather smaller. We must think in terms of better and worse. And in thinking about what that smaller number of better feasible worlds might include, considerations about the strength and limits of shared citizenship must play a key role in democratic theory. IV This chapter has offered three critiques of ‘Proudhonism,’ in apparently descending order of severity. The first is directed at Proudhon’s own

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conception of politics as a matter of order-maintenance in the service of a pre-politically given model of a just society. The second is directed at the apparent lack of an institutional forum in which general and openended distributive questions can be raised. The third concerns the absence of one component of effective democratic citizenship, that is, strong reciprocity between different issue-areas. There are, needless to say, possible and important responses to all three critiques. First, the ‘justice’ issue. Any state, it might be objected, protects a particular conception of justice. Even the liberal state, which prides itself on its open-minded and receptive attitude, enforces a particular conception of justice, that is, a procedural one, that coercively excludes other conceptions (at the level of basic structure). There are all kinds of justice-based claims that it coercively excludes, for example, right-to-life claims based on Thomistic natural law, or demands for Sharia law, and while there might be good reasons for excluding such claims it hardly seems that open-mindedness (as such) could be among them. So it may seem a bit harsh to convict Proudhon of advocating a political order that closes down the justice issue, if all constitutional advocacy does essentially the same thing. But this is not an either/or matter. Constitutions can be more less constraining; and while constitutionally prescribed procedures are non-neutral in the sense that they favour some kinds of outcome rather than others, they are patently more neutral than constitutionally endorsed visions about how to live. Moreover, the right kind of procedural constitution should not only determine whose view of justice gets to win, it should also afford protections, insofar as it can, to those whose view of justice doesn’t win.37 So on two counts, it can claim to be stronger, in terms of legitimacy, than a constitution directly imposing a view of substantive justice, and placing it beyond contestation, as Proudhon’s does. Second, the ‘forum’ issue – i.e. cityless citizenship contains no forum in which contested general issues can be resolved, the resolutions then being imposed authoritatively. There are multiple fora and what happens as a result of their various respective resolutions remains in doubt, its overall legitimacy thus being hard to assess. This, it might well be argued, is the price that we have to pay for expanding the scope of citizenship. True, the sovereign state can authoritatively impose solutions within its realm, but altogether too many possible solutions lie beyond its scope. At the substate level, there are many sites of power that escape democratic control. At the suprastate level, in a globalized age, there are many issues that states cannot satisfactorily resolve within their own sovereign jurisdiction.38 They cannot, for example, impose their

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own effective resolution on cross-border environmental issues, and they might better promote their citizens’ interests by joining cooperative endeavours with other states, even at some cost to their own sovereignty. All that is beyond dispute. But those sorts of consideration do not, on their own, settle the question of whether we should retain states which keep control over the internal devolution and the external ceding of powers, or whether we should adopt a no-state solution. How we settle that depends on judgments about the potential effectiveness of democratic citizenship at various substate and suprastate sites, and that in turn raises many questions, including those entailed by the third and final issue. Third, then, the ‘reciprocity’ issue. This might, on the face of it, be to make too much of what is after all only one of the sustaining conditions of citizenship. Yes, it is surely true that if members of a single constituency all stand to gain or lose as a result of their common decisions, those decisions have the highest possible degree of legitimacy in the eyes of those who lose: their losses are the natural costs of their (actual or potential) victories; and when there is no single constituency within which gains and losses are to be registered, that source of legitimacy is weakened. But why make so much of that? Even if different but overlapping constituencies decide different issues, it might be objected, the same considerations of procedural fairness still apply across the board, and ought to reconcile the losers to the decisions made by fair means. While that is true, there is an important reason for giving especial weight to the reciprocity argument. If gains and losses are registered within a single constituency, we can, as we saw, give a particularly compelling reason for the use of coercion in their support. For we can say to those who lose that their loss is the outcome, not just of an abstract principle that there are good reasons to endorse, but of decisions made by the very same determinate others to whom they themselves proposed to apply the very same procedure. And if there is anything that distinguishes shared citizenship from other relationships of justice or fairness, within or beyond the state level, it is that. The most obvious alternative, as a way of justifying borders, would be to adopt a variant of the argument from nationalism: not as a type of moral partialism, which would change the basis of the argument too radically, but in an instrumental way. We could say, as noted briefly above, that citizenship needs the support of community, and the evidence of history is that the kinds of communities that function best as supports for citizenship are political nations. There is a very extensive

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literature on this claim, provoked largely by the work of David Miller39 and Yael Tamir.40 As far as the theme of this chapter is concerned, the two basic issues seem to be (1) whether what is claimed for nations can be claimed only for nations, and (2) whether national identity can be seen as an independent variable, or whether it is better seen as a dependent one.41 But the argument from citizenship does not take on such a demanding task as the argument from national identity. It does not claim to show where boundaries should be, only that there should be boundaries somewhere, if the critical considerations outlined above carry weight. If they don’t, then so much for citizenship as a morally significant idea of independent value that stands between the local and the human.

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7 J.S. Mill’s Religion of Humanity

The chapters above invite discussion of a very basic question: What does it mean to have a human attachment – an attachment to other humans, regardless of any ties of friendship or shared citizenship? For Locke and Rousseau and Wollstonecraft, as we have seen, it played the role of a basic moral claim to be selectively admitted, to varying degrees and in various ways, in the normative construction of citizenship. For Comte, it was an idealized transgenerational collective. For Eliot, it was argued, it was a moral property that creates ties among strangers and modifies ties among friends. For Proudhon, it was an organizational space to be filled in ways that would neutralize the irrationality of nations and mass publics. It is a reasonable speculation that the term ‘humanity’ has such great moral force because of resonance between its several meanings. It may mean an attitude, synonymous with ‘humaneness’; or, as in Kant’s second formulation of the categorical imperative of morality (‘So act as to treat humanity ...’); it may refer to a distributive property (i.e., something each human has); or it may refer to a collective entity (humankind).1 When John Stuart Mill speaks of ‘humanity’ in some important passages his meaning comes closest to Comte’s. Like Comte, he believes that humanity, as a collective entity, can become the object of a new religion (or, more strongly, that in fact it has really been the object of worship and devotion all along, and that all that is new is that it will at last be recognized for what it is – the human truth behind God: for God is a proxy for human self-worship). Mill believes that humanity, as an object of devotion and service, can motivate the search for mutual and general improvement that is to be the ethic of the secular age. For all his fierce dislike of Comte’s authoritarianism, Mill commends Comte for showing ‘the possibility of giving to the service of humanity ... both the psycho-

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logical power and the social efficacy of a religion; making it take hold of human life, and colour all thought, feeling, and action, in a manner of which the greatest ascendancy ever exercised by any religion may be but a type and foretaste.’2 The moral force of ‘humanity’ may in part depend, I noted above, on some mutual trading among its meanings. But we need to distinguish among its meanings all the same: and when ‘humanity’ is taken as a collective, and made the object of (apparently) unprecedentedly devoted service, we should ask about what happens to the term’s distributive sense; for, after all, the great theistic religions which (according to Mill) are to be demystified and replaced cannot plausibly be said to have consistently respected the humanity of individuals – so why should their demystified replacement do so? That question obviously parallels and in part merges with a familiar question about Mill, that is, the big question about utilitarianism and individual liberty: given the apparently aggregating potential of utilitarianism, its project of giving weight to ‘the greatest number,’ how can any finally decisive protection be given to individuals, as Mill proposes to do in On Liberty? The link between the two questions is made quite explicit by Mill himself, who regards the ‘religion of humanity’ (properly understood) as the principal ‘sanction’ or psychological support for utilitarian ethics. Broadly viewed, the positivist and utilitarian ethics have much in common, as versions of consequentialism that (moreover) stress the big picture. The importance of raising this question in the context of Mill’s thought is that he is probably the best possible exemplar of the effort to reconcile collective and distributive ‘humanity,’ so to speak. In its collective sense, ‘humanity’ carries the combined force of his passion for improvement and his powerful animus against theistic religion, which, he believes, has systematically misdirected the human desire for an object of devotion. As for the term’s distributive sense, Mill, for all his profound rejection of Kant, quite clearly wants to give decisive weight to each person’s status as a bearer of the power to reason and to choose. (He believes that Kant’s view can be entirely accommodated within his own, without loss [54–5].) But does this ambitious project work? Can ‘humanity’ function both as an ultimately all-absorbing criterion of general duty and as a status that entitles our neighbours to our individual and particular concern? I Mill’s theory benefits from the context of his three major essays on religion.3 These wide-ranging essays approach (among many other large

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issues) the matter of definition. The last of the three essays, ‘Theism,’ concerns religious belief in the traditional sense: it is a painstaking account, from an agnostic point of view, of the possibility of belief in God. If we coolly weighed the respective quantities of good and bad things in life, Mill says, we would conclude that optimism should count as a mental disorder, just as melancholia does – or with more reason. But a cheerful disposition, unlike a severely melancholic one, does no harm, and if one chooses to ‘dwell chiefly on the brighter side’ there is no moral objection to doing so.4 One may hope, then, if one is so inclined, that there is a God, and an afterlife. But we must also remember that if we also coolly weighed the arguments for God’s existence, the most we could claim to find would be an entire absence of decisive disproof. Moreover, what is the God whose existence cannot be entirely disproved? A being of only limited power and limited benevolence, who, if he intended to make us happy, has so far done a very poor job. These are, of course, very far from being inspirational conclusions: but Mill, while making his own position plain, refuses to close the door entirely on the legitimacy of theistic hopes. I see no reason to explain this scrupulously agnostic stance in the ad hominem manner proposed by a recent commentator, particularly when the explanation involves implausible assumptions about Mill and his readers.5 The earlier essay on ‘The Utility of Religion,’ however, had concerned religious belief in a non-traditional sense. Mill identifies the religious aspect of belief with the importance of the need for consolation and ‘elevated feelings’ in human life, but raises the question of whether ‘in order to obtain this good, it is necessary to travel beyond the boundaries of the world which we inhabit.’ He decides that it is not, that feelings of consolation and enthusiastic devotion can be inspired by the common good of humanity itself: To call these sentiments by the name morality, exclusively of any other title, is claiming too little for them. They are a real religion ... The essence of religion is the strong and earnest direction of the emotions and desires towards an ideal object, recognized as of the highest excellence, and as rightfully paramount over all selfish objects of desire. This condition is fulfilled by the Religion of Humanity in as eminent a degree, and in as high a sense, as by the supernatural religions in their best manifestations, and far more so than in any of their others.6

By ‘the religion of humanity’ Mill means ‘the cultivation of a high conception of what [our earthly life] may be made,’ a conception whose

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realization constitutes our ‘grand duty’ in life, and the fulfilment of which binds us together as fellow-participants in a common pursuit.7 And when Mill returns to the religion of humanity at the very end of the later essay on ‘Theism,’ the tone is moving and enthusiastic: that one can do something, however small, to aid in the progressive improvement of human life is ‘the most animating and invigorating thought which can inspire a human creature; and that it is destined ... to be the religion of the Future I cannot entertain a doubt.’8 Belief in God is quite consistent with the religion of humanity, provided that God is imagined as a benevolent being who needs our active assistance in realizing his intentions; but the religion of humanity is capable of standing ‘with or without supernatural sanctions.’ It is important to distinguish this view from a later view, such as (notably) Durkheim’s, in which the category becomes a purely sociological one.9 In a view of that kind, religion comes to be defined simply as a set of beliefs or values to which a society attaches particular authority. But Mill does not want to make religion into a mere social fact. It is crucial, for him, that a central reference to the quality of a personal experience should be retained: something is defined as ‘religious’ not because it is a feature of however many people’s belief, or something that is normatively powerful for a group, but because it expresses a sense of reverence and commitment subjectively similar to that experienced in theistic religions. As George Eliot was to put it, the religion of humanity still expressed ‘religious yearning,’ even though there was no longer a transcendental object to attach it to.10 Humanism, in the Mill/Eliot model, secularizes in the transitive sense, that is, it adopts and transfers elements of religious belief to a new secular context, endowing them with a new meaning – though claiming that the meaning is not really new at all. II That model of secularization is quite different from the model generally attached to liberalism. The typical liberal model is not one of transference – a model whereby religious elements take on a secular meaning – but one of separation. It leaves religious sentiment where it is, so to speak, while insisting on the integrity of secular pursuits and the institutions that sustain them. Far from generalizing religious sentiment, the point is, exactly, to circumscribe it and to detach it from the government of shared secular life, where its intrusion would complicate disagreements and inflame commitments and enmities. The classical point of

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reference here is of course Locke, not Mill. If Mill’s writings call for a ‘religious’ devotion to secular progress, Locke’s Letter Concerning Toleration calls for an institutional and functional separation between church and state, two agencies which are wholly distinct in the justifications that sustain them and in the powers that they can properly exercise. ‘He jumbles heaven and earth together, the things most remote and opposite,’ Locke wrote, ‘who mixes these societies, which are, in their original, end, and business, and in every thing, perfectly distinct, and infinitely different from each other.’11 That model of secularization has been elaborately defended and while by no means wholly immune to critique it has come to occupy a huge discursive space within modern political theory. It is marked out and defended by highly articulate, more or less Locke-descended, contractualists and neutralists. Mill’s model of (transitive) secularization, however, occupies a very exposed position indeed, deprived of most of the defensive strategies that Lockean and post-Lockean thought has developed. If liberalism is a kind of religion, how can it claim to impose obligations on those who do not even subscribe to it? If it is a religion, what is the source of its revelation or revelation-proxy? And if it is a religion, how can it possibly claim to hold the ring for contests among other religions and their rival claims, since it is on exactly the same footing as they are, not above them? It is no surprise to find, then, that it is Mill’s critics who have particularly stressed Mill’s religion of humanity; more particularly still, his conservative critics, who see in this feature of his thought a basic misconstrual of what individuality should mean. Mill, they argue, is a closet collectivist, who speaks the language of individuality and choice while disguising (in order to disguise?) his desire to engineer a new society based on new dogmas. Interestingly, Mill’s first and most impressive conservative critic, James Fitzjames Stephen, sees Mill’s project as entirely overt: he identifies the ‘religion of humanity’ – a religion of liberty, equality, and fraternity – as the core of his message, and delivers some blunt though decidedly debatable criticisms. In particular, Stephen’s critique derives force from the point that, in advancing and imposing a religion of humanity, Mill can hardly claim to be speaking from a religiously neutral position. Every political program, Stephen maintains, must take some position or other on the truth or falsity of someone’s religious claims, and the idea – which he takes to be Mill’s – that a state can adopt religious neutrality is wholly vacuous. A state may proceed on the assumption that one religion is true, the others false; or on the

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assumption that truth is shared among them; or on the assumption that all are false – but it cannot be neutral.12 Strangely, what Stephen found to be quite overt is regarded by later conservative critics as surreptitious and perhaps sinister. For Stephen, Mill’s liberalism was his religion (‘of humanity’); for later critics, Mill’s religion of humanity is said to undermine his liberalism, that is, his belief in choice, for it is said to give the lie to his claim that views of life are not to be officially favoured or promoted. Mill’s desire to promote his own religion, they argue, had to be concealed under the language of ‘liberty.’ He did not really want liberty, they argue: he wanted a new and militantly atheistic belief system to be imposed. Maurice Cowling saw in Mill’s Religion of Humanity ‘a socially cohesive, morally insinuating, proselytizing doctrine,’ concluding that Mill saw freedom as no more than an opportunity to undermine tradition and to govern opinion by a new authority. Likewise, Joseph Hamburger saw the Religion of Humanity as ‘an ominous but inconspicuous presence in On Liberty’ as part of Mill’s project for ‘the reconstruction of human intellect’ to be carried out under the guidance of ‘wholesome’ persons who would exercise ‘the highest political functions,’ using their authority to ‘extirpate’ Christianity.13 Now both Stephen’s critique and later versions of conservative critique seem to overlook an important distinction. No doubt any comprehensive choice-guiding system can be called a religion. But religions thus understood may differ with regard to the relation between norms and choice. In some comprehensive choice-guiding systems (‘religions’) norms may fully determine choice. In others, the exercise of choice may carry (some) independent value. From a practical point of view, the difference is immense. So nothing much may follow, practically speaking, from the fact that norm-determining and choice-valuing belief systems may both have ‘religious’ force; it all depends on the specific content of something deemed to be a ‘religion,’ and not on the properties that are held to justify such deeming. For a strong parallel, see Neil McCormick’s distinction between two views of a psychiatrist’s professional morality. On one view, a psychiatrist ought to avoid making moral judgments about a patient’s beliefs and should have the sole aim of restoring her to health; on another view, the psychiatrist must apply a moral view of what health is. Both views, no doubt, can be called ‘moralisms,’ but only one version of moralism requires us to impose our own view, while another gives us a moral reason not to.14 Essentially, Mill’s conservative critics fail to grasp that Mill’s ‘religion of humanity’ is constructed on the assumptions of a ‘Protestant’ culture,

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which has built the value of individuality into the idea of religion itself. In Comte’s and Mill’s proposed replacements for theistic religion, the assumptions of their own respective religious backgrounds continue to make themselves felt. Because they see religion as more than a sociological fact, including a type of experience in its definition, they bring into play differing views of the moral psychology of religion that are governed by different background experiences. The point is more obvious in the case of Comte, of whom it is a commonplace to say that he wanted Catholicism without God. Entirely rejecting the view that Catholic ritual and liturgy had a determinate and contingent historical origin, he regards them as expressing the permanent needs of human moral life; hence, in reproducing all its features the Religion of Humanity is merely recovering basic insights that owe nothing essential to theism at all. Questions of priority and causality here are no doubt intricate and perhaps puzzling: who is borrowing from whom? If the church borrowed from a deeply buried religious humanism, it may seem odd that a recovered religious humanism should borrow so much from the church.15 Be that as it may, Comte’s view of religion is one that places enormous stress on the need for institutional support, without stressing at all the need for personal consent. He holds this view, as we have seen, because he does not think there are such things as persons. What is called the person is a disparate bundle of impulses, drives, and faculties. If it is to achieve order it can do so only through religion, religio, which ‘binds’ together dispersed and warring things and makes them into one, through repeated acts of private and public ceremony. Religious practices thus precede and constitute the self, and religious experience is something worked upon the self, for it cannot be something that the self has chosen. It is true that, since the age of Enlightenment, the principle of consent must be recognized, and the Religion of Humanity can be installed only by the free renunciation of alternatives. But plainly, given Comte’s psychology, such consent must be given before one knows what one is consenting to. For Mill, however, consent has an altogether more central place. He attributes to the self the power not merely to submit to influence, but to form its own character.16 Moreover, self-formation, through consent and choice, is an essential part of the authenticity of belief. And although Mill’s views about God are closer to Comte’s than to any theist’s, his views of the self and of the authenticity of belief are much closer to Protestant theists than to Comte. Despite his complaints about the crabbed and pinched Calvinist view of life in On Liberty, in that very text echoes of the

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Reformation constantly make themselves felt. For all his declared agnosticism, Mill’s example of ‘truth’ being constantly put down by power is the repeated effort to reform the Catholic church throughout the Middle Ages! And his core belief in what we may term the inwardness of truth, the need for it to be sincerely held and with a vivid sense of its grounds, clearly recalls some of Locke’s views in the Letter or, even more exactly, Milton’s treatment of ‘truth’ in Areopagitica. Elsewhere, he takes as a model of community the Scottish Kirk and (in strikingly similar words) the Puritans of New England:17 to him, they exemplify the respect for conscience, the spirit of mutual criticism, and non-deferential attitudes to priestly authority. So some of the main themes in his liberalism may be traced interestingly to a religious tradition that must have exercised some influence on the son of a Calvinist minister, a tradition that diffusely survives the abandonment of its doctrines. It survives in a powerful sense that individual lives must be lived from within, that we owe each other ‘earnest admonishment’ and help, and that authority and custom have only such force as consent allows. Mill, then, does hold a view of the kind that, it was argued above, is mistakenly attributed to Locke. It is a secularized Protestantism in which traits of religious individualism are reproduced as human character ideals, integrity of faith becoming the value of self-choosing autonomy. Perhaps it is a paradox that it is Mill, the agnostic, not Locke, the Protestant, who develops this view; there again, perhaps it makes a certain sense, for people with religious commitments scarcely need to find secular displacements for them. But paradox or not, Mill sets liberalism on new and very un-Lockean foundations. III So we can agree that Mill’s vision entailed the promotion of a new consensus which, like him, we may choose to call ‘religious,’ without supposing that his liberalism was an illusion or a sham. We may have a further worry, however, about his vision’s potential for creating hierarchy and privilege. It is a vision of ‘perfecting’ people in certain ways, ways relating to the improvement of character brought about by the exercise of personal choice: but like all doctrines of perfection, it must eventually recognize that its ideal will be met with degrees of success – or in some cases, with outright failure. It thus carries with it what Richard Arneson suggestively terms ‘the shadow of elitism.’18 Mill’s perfectionism – taken on its own – may fail, Arneson notes, to protect individuals against its

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own aggregating logic. It is surely a fact, and one which Mill himself would hardly want to deny, that people differ greatly in their capacity to take advantage of freedom: some will use freedom to develop their powers and become flourishing humans (to everyone’s benefit), others will neglect to use it, or will use it badly. A strict nonpaternalist policy may have good results overall, not because it has good results across the board, but because it gives opportunities to ‘good choosers’ which produce positive results outweighing the negative results of leaving ‘poor choosers’ to choose for themselves. ‘On the average, good choosers will do better in life and attain better lives than poor choosers.’ If this is so, then an aggregating theory would favour giving extra resources to good choosers at the expense of poor choosers, the precise opposite, of course, of the egalitarian preference for favouring the worse-off. To be sure, one might try to defeat this point by introducing a sort of diminishing-marginal-utility correction, on the grounds that too many resources might be ill spent by the better choosers. But then, as Arneson rightly points out, they would no longer qualify as good choosers, by definition.19 So we would want to have something to deploy against perversely redistributive aggregations; and Mill certainly has something – that is, a set of strong claims about the indispensable nature of rights, as protections for individuals or minorities against the potentially oppressive weight of society. One of the most coherent readings of On Liberty demonstrates the central place of rights in its argument; the famously indefinite idea of ‘harm,’ formulated in so many different ways, crystallizes eventually into the idea of ‘rights.’ And although that idea remains unexplained in that text, it is given a very forceful explanation in Utilitarianism. So, much weight falls on that explanation, and it requires examination in some detail. IV Utilitarianism, Mill says, does not require us – absurdly – to reconstruct morality de novo, as though no one had ever had moral thoughts before (24–5). Although it has a critical and corrective effect, it accommodates and indeed makes sense of many inherited intuitions. Among the intuitions that can be accommodated, Mill argues in Utilitarianism’s longest chapter, is the intuition that there is a distinctly important realm, within morality, of ‘justice.’ That people have rights; that there is a principle of desert; that promises are to be kept; that judges be impartial – these are

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all convictions that are firmly held and strongly coloured with feeling. What is ‘the mental link’ (48) among them? Mill approaches the question by asking what it is that distinguishes ‘justice’ from ‘morality’ generally (51). He has just said that the ‘primitive element’ in the idea of justice was conformity to law (49). Recognizing that laws could err, since they are humanly made, ‘the Greeks and Romans’ came to attach the idea of injustice to breaches of ‘such laws as ought to exist.’ By a further extension, we attach the idea of injustice even to inequitable conduct that we would not want to be prevented even by good laws, because we recognize the danger of entrusting ‘the magistrate’ with power over the minute details of personal life (50). We would be glad to see such injustice prevented or punished by ‘anyone who had the power,’ and if we decline to give magistrates such power we nevertheless ‘lament the impossibility.’ We make do with ‘public disapprobation’ as a second best. So the idea of legal constraint is still the basic idea, though modified in those two important ways. An unjust action is one that ideally should be prevented, either by good laws or by a proxy for them (good public opinion). Mill then admits, however, that this does not sufficiently distinguish justice from morality. For ‘We do not call anything wrong, unless we mean to imply that a person ought to be punished in some way or other for doing it’ – by law, opinion, or by the reproaches of conscience (50). A moral duty is something that may be ‘exacted’ (‘exacted’ here evidently including conscientious self-exaction). There are other things that we would like people to do, and dislike them for not doing, but which fall short of moral duty. We might even despise them for not doing such things, but we would not think they thereby become ‘proper objects of punishment’ (again, of any of the three kinds of punishment). Although I do not wish to dwell on the point, for there are more important issues to be raised, this seems odd in two ways. First, the idea of ‘self-exaction’ is problematic if the point of introducing the idea of exaction is to say that people should be ‘bound’ to certain conduct, since what the idea of ‘binding’ brings into play is exactly the question of what one person can require of another person, rather than what one person could require of herself. (Can I be said to be bound by what I can release myself from?) Second, while there are certainly things that we dislike or even ‘despise’ in others that we would not want to be legally sanctioned, and which we might be reluctant even to see enforced by public opinion, surely we would not be at all unhappy if the offenders in question were to be ‘punished’ by being tormented by their own consciences – for lack of,

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say, generosity? Why are they not ‘proper objects of [that sort of] punishment,’ as surely they should be? But let us move on. Admitting that he has not solved the problem that he set himself (how to distinguish justice from morality), Mill turns to the distinction between perfect and imperfect obligations (51). When ‘the particular occasions of performing it are left to our choice,’ a duty is ‘imperfect’ (nothing links a particular agent with a particular beneficiary). What distinguishes ‘perfect’ obligations is that particular beneficiaries have a right to require agents to perform. It is the existence of a correlative right, Mill now says, that distinguishes the duties of justice that he had previously listed (44–8). ‘Justice implies something which it is not only right to do, and wrong not to do, but which some individual person can claim from us as his right’ (52). What is the origin of the idea of justice? His previous discussion has identified two elements, the desire to punish an agent, and the idea of an assignable victim. Mill now elaborates on the former. The desire to punish is natural. By virtue of sympathy, humans can identify with the suffering of their ‘tribe’ or ‘country,’ or of ‘mankind,’ or even of ‘all sentient beings’ (53). To be sure, there is nothing inherently moral about this natural effect of sympathy, but it becomes moral when, tamed by society, ‘it only acts in directions conformable to the general good.’ We learn not to desire revenge for a hurt, ‘however painful, unless it be of the kind which society has a common interest with [us] in the repression of’ (54). A right, then, and consequently any requirement of justice, is ‘something that society ought to defend me in the possession of’ (56), because it combines (1) the idea that a violation calls for retaliation, and (2) the consideration that everyone has a common interest in protecting the interest in question. Only when those two elements exist do we say that someone has a right, ‘a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education or opinion’ (55). And now Mill enormously reinforces the argument by bringing in the question of security. Security is, in effect, the need that meets his two criteria, because it is, as he says, ‘the groundwork of our existence,’ the condition that makes possible the enjoyment of every other good, however interpersonally varied and intrapersonally substitutable other goods may be. It is this that explains the special force, the ‘infinity’ or ‘absoluteness’ that attaches to the idea of a right. (Mill says, of ‘right’ rather than of ‘rights’: but the whole paragraph is about what ‘a right’ is, and I interpret ‘right’ as an inadvertence, since if taken literally

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it would take us back to a discussion of right and wrong, abandoned, in favour of a discussion of ‘rights,’ several pages before, and no longer to the point.) I want to draw attention to some difficulties that Mill causes here for the argument of On Liberty, but even before shifting texts some puzzles need to be mentioned. (1) Mill began his attempt to isolate ‘justice’ by distinguishing perfect from imperfect obligations. He then attempted to explain the specialness of justice by introducing the natural ‘thirst’ for retaliation – this makes the unjust act, the violation of a right, different from and more abhorrent than a merely wrong act. But these two criteria do not fit together at all well. The perfectness of obligations does not map onto degrees of thirst for revenging their violation. My obligation to meet you for coffee at a stated time is perfect, but it would not take much to outweigh the obligation excusably. My (Good Samaritan) obligation to the wounded person whom I pass on the road is imperfect, but it takes very much more to outweigh it. I would, obviously, be open to greater condemnation for neglecting the latter obligation than for neglecting the former. So while the thirst for punishment may meet Mill’s goal of explaining why injustice is special in its emotional colour, it seems to do so only at the cost of entirely abandoning what its specific content is quite clearly said to be. (2) While the ‘security’ criterion may explain why the ‘common interest’ test is met, it does not give an adequate account of the other test, that there is an agent deserving retaliation. There may be, and then Mill’s argument would explain why the ‘retaliation’ test and the ideas of ‘rights’ line up together – if you violate my security, you deserve retaliation. But the retaliation test cannot be necessary if security is given the justification that Mill gives it, i.e. it is something essential to the enjoyment of the goods of life however construed. For if that explains its importance, then it is important that it be provided (as a matter of right) whether or not there is an assignable agent who is causally responsible for the insecurity, and (no less consequential) whether or not the causally responsible agent (if any) can be called to account. If security grounds rights, in short, it cannot matter whether or not someone is responsible for the insecurity or whether or not it is that particular person who can be called upon to pay a price by restoring security. The point here is further strengthened by, though it does not at all depend on, Mill’s en passant reference to ‘physical nutriment’ as at least on a par with, and perhaps prior to, physical insecurity. Drawing upon that refer-

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ence, Henry Shue convincingly demonstrates that rights may be fatally damaged by social and political arrangements rather than by determinate individual agents.20 (3) Bracketing out the ‘security’ argument, and isolating the ‘natural’ desire for retaliation as a factor in defining rights: that desire is supposed to explain the emotional colouring of the importance of rights. It is a right because we have a desire to avenge its violation. To be sure, that test is not applied in a crude and unreflective form, for we have to filter the desire to avenge through a general utility test: we should avenge those damages to interest which assume a universal importance because the interests in question are universally shared. This, Mill says, is the only meaning that can be given to the Kantian requirement that just rules of conduct be capable of adoption by all rational beings – it means that they be tested against the interests ‘of all mankind collectively, or at least of mankind indiscriminately’ (54). Our natural desire to retaliate, then, must pass a high threshold. But it then transpires that the retaliation for which we thirst, even after being chastened by reflection, may not take the form of legal prohibition: it may take the form of disapproval only. This would seem even more odd if we continued to maintain that pangs of conscience were a form of punishment, but that idea falls away after its first mention. But even without that, however, there is surely some implausibility in the thought that the ‘animal desire’ (55) to retaliate would be satisfied with public disapprobation, in the case of offences that had already passed the very high threshold of general utility, i.e. had been found culpable in the highest degree. And implausibility surely becomes disbelief if we reintroduce the ‘security’ factor as a way of explaining the ‘natural’ or ‘animal’ impulse to punish: for if it is true that rights form ‘the very groundwork of our existence,’ how is it conceivable that they should be protected by anything less than law? How could respect for them possibly be in any degree optional? These difficulties emerge even more clearly, however, when we turn to On Liberty. Mill begins his particularly contentious fourth chapter by turning at once to the idea of rights. In the first chapter he had spoken in a rather indeterminate way of ‘harm to others’ as a test for public policy and legislation. That idea, as many have pointed out, is too unclear to bear the weight that Mill places upon it; but as J.C. Rees argued,21 it is not harm that bears the weight, from the first page of chapter 4 on, but harm to interests ‘that ought to be considered as rights’ (143). As far as it goes, that statement is fully consistent with the argument of Utilitarianism to the extent that it had rested the definition of ‘rights’ on a normative

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question: what interests pass the ‘general utility’ test? But On Liberty at once departs from the argument of Utilitarianism, in employing the idea of ‘rights’ as a way of distinguishing the provinces of law and of opinion. When rights are violated, Mill now says, the law may step in; otherwise, violations ‘may then be justly punished by opinion, though not by law’ (143). In Utilitarianism, Mill had said that violations of a right may be punished sometimes by law, sometimes by opinion; but now he apparently uses the rights test to distinguish between the province of law and the province of opinion. And so it would seem that On Liberty would propose legislative control in matters that Utilitarianism was content to leave to public opinion – if every violation of rights is now to be subject to law. Of course, that thought is at variance with what we expect On Liberty to do, which is (roughly) the reverse. And in fact it does something like the reverse, in ways that make its relation to Utilitarianism problematic. For On Liberty goes on to claim that violations of rights create only the possibility of enforcement even by opinion. ‘As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion’ (143). As in Utilitarianism, interference by society encompasses both legal punishment and social sanctions, or ‘social or ... legal punishment,’ as On Liberty puts it later. (Note that there is a further realm of personal unpleasantness, including such vices as insincerity and bad temper, which does not rise to ‘wickedness,’ and which justifies us only in avoiding – unostentatiously – the company of the unpleasant [146–7].) So rights violations bring acts under one or other form of jurisdiction by society, though it may or may not be right for society to exercise its jurisdiction; a general welfare test must be applied. This conclusion, if true, takes us still further away from the account of the genesis of rights in terms of a ‘thirst’ for retaliation, and from their connection with vital security interests. For encroachment on rights may require a social response ‘in grave cases’ (146) only: what has happened to the definition of a right as ‘something that society ought to defend me in the possession of’(56), which implies that all rights-issues are, to say the least, ‘grave’? Moreover, we are left with a complex view of the operation of utility as a test. In Utilitarianism, as we have seen, ‘general utility’ determines whether or not a right exists (56); in On Liberty, ‘general welfare’ determines whether or not a right is to be protected (by any means). The argument, of course, gives us a reason why: the social importance of

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liberty should make us reluctant to curtail the operation of individual choice except when doing so is essential. But the way in which utility comes in has changed, and has become, curiously, more ‘collectivist’ than in Utilitarianism, for now the straightforward connection between utility and personal rights has been broken, the relation being mediated by the needs of social progress. Any distributive idea of individual need would seem to have given way to some form of collectivism. But although the discussion of the optional nature of social protection begins with the topic of ‘interests, which ... ought to be considered as rights,’ On Liberty leaves open the possibility that Mill is simply inconsistent in his language and that the discussion refers to interests in general. By the time we get to the beginning of chapter 5, it has clearly come to do so. Here Mill discusses the ways in which a person causes ‘pain or loss to others, or intercepts a good which they had a reasonable hope of obtaining’ (163), his two examples being success in a competitive examination, and business or ‘trade’ relationships. In all such cases, the acts in question come ‘within the jurisdiction of society.’ That term had been used at the beginning of chapter 4 in connection with rights. But now its scope is clearly broader. As he says, those who lose out in competitive examinations have no right to succeed – a view which Ronald Dworkin was later to echo22 – and clearly one has no right to success in business, where no formal selection criteria exist at all. As it happens, in both cases, Mill believes, it would be a mistake to exercise jurisdiction, for ‘society’ is best served by following the merit principle in competitive examinations, and adopting a free market in business matters. Those are, however, decisions of policy, and as such depend on the view that society has general jurisdiction over all areas of life in which interests conflict. Now one way to reconcile this with the claims of Utilitarianism would be this. In Utilitarianism, Mill connects rights with general utility: they are interests which everyone has an interest in securing protection for. In On Liberty, we might say, Mill discusses – in the light of the demands of utility – which of our interests deserve protection. The process of balancing individual interests against the social value of liberty is the process by which rights are constituted. On this view, we would not know what rights we had until the process had taken place. This would avoid the problem of there being, apparently, two distinct utility tests, by collapsing them into one. But apart from being inconsistent with Mill’s language at the beginning of chapter 4 of On Liberty, it would remove any possibility of appealing to rights in the process itself, and it would also collapse the

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question of what rights individuals have into a simple issue of public policy. Discarding that solution, then, we are left with an unsatisfactory state of affairs. On the one hand, while an attempt is made to define ‘rights’ in terms of their exceptional moral salience, their relation to this initial salience becomes increasingly attenuated; some of our rights, it seems, may not get to be protected at all, despite the fact that it was exactly their urgent need for protection that distinguished them from ordinary interests. Moreover, it eventually seems clear from On Liberty that some interests other than rights may get to be protected: since (for example) the merit principle in law school admission or the market pricing of rental housing is a matter of social policy, a change in public policy might give protection to minority applicants in the one case and to tenants in the other – though neither group would have a right except in the sense that law might confer a (temporary) right upon them. So the idea of rights does not actually do any of the things that Mill wants it to do. It does not distinguish between protected and non-protected interests. And it does not settle the proper boundary between law and opinion. What are we to make of this? Surely it demonstrates the difficulty that Mill has in trying to accommodate established intuitions about justice within a theory that can potentially collapse everything into a matter of policy, and, more specifically still, in protecting individuals within a theory well known to have a powerfully aggregating potential. V But potential is one thing, real implication another. To be sure, Mill’s theory of rights may be inserted within a general view that confronts it, potentially, with damaging rival claims. That general view, however, may also contain reasons for believing that its ‘rights’ component may and should trump its rivals. Obviously it is Mill’s view that it does, for he emphatically asserts the priority of justice over policy. ‘Justice is a more sacred thing than policy,’ he writes, and: ‘no one of those who profess the most sublime contempt for the consequences of actions as an element in their morality, attaches more importance to the distinction than I do’ (61). Does Mill’s political theory make good on this claim? In one respect it does, that is, in relation to policies or legislation that we might term ‘paternalist.’ Discussing (in Utilitarianism) the ‘moral rules which forbid mankind to hurt one another,’ Mill specifically in-

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cludes ‘wrongful interference with each other’s freedom’ as a hurt (62); and On Liberty, of course, elaborates. The main point of what has come to be termed ‘the harm principle’ is to exclude paternalism, and it may well be that it is just because its main point is so insistently exclusive that what it includes is so famously hard to figure out.23 The person’s ‘own good’ does not warrant restricting her behaviour, Mill is adamantly sure, while the kinds or extents of harm to others that do warrant restriction of an agent do not lend themselves to a summary parallel formula. On Liberty gives us some powerful reasons to reject paternalism, reasons accompanied by some vividly persuasive images. The reasons concern the importance of self-choosing. Sometimes the stress falls on the reflexive effects of choosing on the agent: ‘The mental and moral, like the muscular powers, are improved only by being used’ (126), and their use brings into play such important capacities as reasoning, judgment, discrimination, firmness, and self-control. Sometimes the stress falls on natural difference, and the cruelty of denying the natural shape of desire: ‘Such are the differences among human beings ... that unless there is a corresponding diversity in their modes of life, they neither obtain their fair share of happiness, nor grow up to the mental, moral and aesthetic stature of which their nature is capable’ (136). Sometimes the stress falls neither on the fact that difference is chosen, nor on the fact that it is natural, but, rather, on the fact that – however grounded – it is useful to others: ‘In this age, the mere example of non-conformity, the mere refusal to bend the knee to custom, is itself a service’ (135). For certain purposes, it is important to note the distinctions among these arguments: if choice is all-important, it would not really matter if we all chose similar things, while if difference is all-important, it would not seem to matter how we arrived at it. From the standpoint of persuasiveness, however, these different emphases may actually contribute to the argument’s cumulative effect. And when we add in the unforgettable images of the growing tree, or the river in full flood – together with the intensely physical use of language to sensitize us to the pains of maiming, crushing, pruning, taming, and so on – we are left with a critique of paternalism of absolutely unparalleled force. So that kind of potential freedom-reduction is strongly ruled out. But the ban on paternalism does not touch the principal kind of freedomreduction that On Liberty leaves standing, that is, the entirely open-ended scope of one’s duty to others. That no one can reduce your freedom for your own good is a principle given absolute protection. However, that your freedom is limited by the duty not to harm exposes your freedom to

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indefinite restriction, just because the meaning of ‘harm’ cannot be satisfactorily stabilized. As we have seen, the relevant meaning of ‘harm’ is defined by what we take a ‘right’ to be: but ‘rights,’ in turn, are defined in terms of a utility standard that is inherently variable. The utility involved is that of security, the groundwork of our existence, in that it is a prerequisite of any enjoyment of any good; we attach ‘rights’ to security interests that are both vital and broadly shared; but even for legislators or publics who conscientiously try to follow Mill’s prescription, there is no fixed threshold of either vitalness or breadth – witness, for example, the recent expansion of the idea of ‘security’ in the academic study of international relations. As the threshold rises, rights become more demanding, one’s duties to others expand, and so what one is at liberty to do diminishes. The open-endedness of obligation is made quite clear in Mill’s account, quoted above, of the feelings that flow into the religion of humanity. And as Mill himself notes, the danger is not that the religion of humanity should be insufficiently motivating, but that ‘it should be so excessive as to interfere unduly with human freedom and individuality’ (35). (That remark, we might note in passing, raises formidable obstacles to the conservative view of Mill as a surreptitious authoritarian: why on earth, on that reading, would he thus overtly signal the authoritarian risks of the program that he proposed? Hamburger omits it, as does Raeder, in quoting the sentence in question.) The importance of this line of argument only becomes evident, however, if we turn to Mill’s essay on ‘Civilization.’ For there we find a speculative philosophy of history that tells us that the risks mentioned above are not merely hypothetical possibilities, but are – in effect – actual likelihoods. As civilization advances, our vulnerability to each other constantly increases. Much like Rousseau, Mill sketches a developmental path from self-sufficiency to mutual dependence. In ‘savage communities each person shifts for himself,’ Mill writes, ‘and trusts to his own strength and cunning,’ whereas, in civilized communities, it is increasingly the case that we must take satisfaction from collective rather than from personal successes.24 (Here a Tocquevillean influence reinforces Rousseau’s: rather as Rousseau had distinguished between the independence of the savage and the interdependence of civilized ‘men,’ so Tocqueville had contrasted the independent action of powerful aristocrats and the democratic condition, in which only joint action can produce results.) Viewed in a positive light, of course, it is that very fact that lends support to the ‘religion of humanity,’ in inclining us to take as our ‘ideal object’ the goal of collective self-improvement sustained by

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shared effort, rather than any purely personal goal attainable by one’s own initiative. But the same fact has a negative aspect, that is, each person’s increasing dependence on each other person’s self-restraint and conscientiousness. So Mill’s ideal of progress, and his worry about individual fragility, are two sides of the same coin: the one encourages mutual identification, while the other underlies the ‘constant protest’ against violations of personal security that, Mill says (in Utilitarianism), must motivate moral thinking (33). Mill’s ‘civilized community’ is not a face-to-face society of the kind made familiar by communitarians; nor is it a Gesellschaft made up of indifferent strangers related only by merely objective interdependence. What is distinctive about it is exactly the fact that it requires us not to be indifferent to strangers. We have no personal connection with the man whom we see stepping onto an unsafe bridge – to take a famous example from On Liberty – but our knowledge of human vulnerability creates a duty to save him. In other cases, of course, as On Liberty also explains, our knowledge of personal vulnerability should lead us to respect individual choice, as something that is so easily undermined by legal and social pressure; the same concern, then, leads us sometimes to intervene, and sometimes to restrain ourselves from intervening. This is perfectly intelligible in a consequentialist theory, and implies no contradiction. But the developmental context that Mill establishes for his theory leads us to think that reasons for intervention are likely to become both stronger and more numerous as time goes on: and to that extent, the liberty-promoting elements of the theory seem destined to a progressive erosion, as we are driven to understand the demandingness of what others need in order to live their lives. It is definitive of the process of ‘refinement,’ Mill believes, that the suffering and infliction of pain and even the witnessing of pain become increasingly infrequent for most people, as protection is collectivized, the necessity of ‘personal collision between one person and another’ virtually disappears, and violent tasks are assigned to ‘peculiar and narrow classes.’ But ‘most kinds of pain and annoyance appear much more unendurable to those who have little experience of them, than to those who have much.’25 The effect of ‘refinement,’ then, is to lower the pain threshold constantly, in a way that, it would seem, would also constantly press upon expectations of common protection. Moreover, as ‘civilization’ advances and larger more anonymous associations replace smaller and more communal ones, our trust in one another may have to be progressively reinforced by public regulation.26 So we may be called on, progressively, to exercise increasing concern

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about the vulnerability of others to our actions, and perhaps to accept, progressively, closer restrictions on our own freedom of action for that reason. Barbara Herman discusses the situation that this logic may eventually entail. If we all have an unstopped obligation to give others’ ends the same weight as our own, the result may be self-defeating: ‘For everyone to strive to make all ends of all others their ends also would not leave enough of ends that are truly a person’s own to form a conception of the happiness others are to promote.’27 And if, as Mill goes so far as to say, we all have an obligation to contribute without limit to the happiness of others, then exactly that paradox lies in wait for his argument, and devours it, if the happiness of others becomes, as he predicts, increasingly sensitive to our behaviour. All that would be left within each of us would be the desire to contribute to what would then become the wholly unfindable desires of others – each would be lost in an inherently inconclusive search for a reciprocally searching other, in turn (if conscientious) concerned about our own sensitivities in an increasingly vulnerable environment. VI In his discussion of perfectionist theories, Arneson assesses the view that the elitist potential of those theories can be constrained by (among other things) what he terms a ‘Lockean’ theory of rights, that is, a view of rights that would remain untouched by consequentialism of the kind that may complicate Mill’s liberalism. And Mill himself at least hints at such a view. In Utilitarianism, he writes: ‘Society between human beings, except in the relation of master and slave, is manifestly impossible on any other footing than that the interests of all are to be consulted. Society between equals can only exist on the understanding that the interests of all are to be regarded equally’(33). This is ‘Lockean’ in the minimal but important sense that it derives rights from what is held to be a necessary feature of an organized human society – that is, a recognition of basic human equality, as spelled out in section 6 of the Second Treatise. But it may be ‘Lockean’ in a fuller sense too. As it stands, the passage just quoted is consistent with any level of regard to interests, including a level equal to zero, as long as the regard is equal. It would then, of course, mean nothing at all. What makes it meaningful is the assumption that the level of regard will not only be equal but also be significant and substantial to each individual. We will want not only an equal level of

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liberty (which may be nugatory) but equal capacity to control what degree of liberty we have. The only way to secure that would be to assume that each individual had control over the substance of her liberty, subject to the test of equality; and when we do that, we have come to meet all the formal conditions of a contractualist model, whether that model is invoked or not. The question to be posed (on what ‘footing’ is society possible?) concerns the basic structure of a society composed of individuals possessing some important common property; and the answer is reached by imagining what controls would be surrendered, and which would be kept, by individuals trying to reach a reasonable answer to the question, while paying acceptable regard to their own interests. Mill says, in On Liberty, that ‘society is not founded on a contract, and ... no good purpose is answered by inventing a contract in order to deduce social obligations from it’ (143). His very own argument, however, dramatically demonstrates the ‘good purpose’ which here he denies. Both to protect the effective force of rights, and to ensure their equal distribution, Mill has to posit implicitly a mechanism which rests ‘social obligations’ on the terms of social agreement that would be reached by people whose consent to obligations would be required. What contractualism contributes tells us something about the relationship between political philosophy and moral philosophy. Speculations in moral philosophy – speculations such as Mill undertakes in Utilitarianism and elsewhere – appeal to an unlocated and necessarily unlocatable point of view from which judgments are to be made. If that point of view were locatable, the philosophy would become unnecessary, for we could turn directly to the source for an authoritative answer. But once we engage in the philosophy, we must be open to whatever the answer turns out to be, and if an intended liberty-promoting argument turns out to undermine liberty, for example, then that is so much the worse for liberty. Of course, political philosophy, like all philosophy, must also go where the argument leads; but the difference is that political philosophy locates or assigns a place of judgment, and in doing so must take account of the fact than an organized society, unlike an individual, cannot go wherever the argument leads, for it has no institutional means of giving authority to good arguments as such. That, although very abstractly stated, corresponds exactly to the real historical arguments between the ‘Lockean’ Locke and the very un-Lockean opponents of liberalism – Jonas Proast, James Fitzjames Stephen – who advocated an unmediated relationship between political authority and the

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authority of truth, and thus saw no intelligible place for the safeguards that contractualism seeks to create. The problem for ‘Millian’ liberalism is that it wants to maintain those safeguards – equal liberty for all – while basing itself upon an unlocated (and again, necessarily unlocatable) moral ideal that has the potential to devastate them. Behind the respect that we are to give individual people, there lies a moral ideal that makes all such respect conditional on something else, and that necessarily makes respect only temporary. To make it permanent, we have to turn to a model that Mill rejected in theory, but effectively adopted in practice. That model implies that ‘humanity’ is not in the first instance a collective but a status with substantial and independent moral weight that must be put in the balance when any collective arrangements are judged. Unless it has that status, collective arrangements risk being placed beyond inspection and critique – a point that the subject of the next chapter was to make with great vividness, in his own unique way.

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8 Henri Bergson and the Moral Possibility of Nationalism

Liberal theorists, despite their commitment to one or other form of universalist morality, have often tried to find a place for national identity in their political thinking. Interestingly, Mill himself, despite the very strong claims that he made for ‘humanity’ as a ‘sanction’ for mutual obligations, also believed that shared nationality was a precondition for citizenship: ‘Free institutions,’ he wrote, ‘are next to impossible in a country made up of different nationalities.’1 Following Mill, later theorists have also sought common ground between liberty and nationality, denying the view of political cosmopolitans that national attachments are necessarily allied with reactionary and belligerent policies, viewing them, rather, as providing a solidary basis for democracy or justice. This chapter attempts to show that, in that context of debate, there are some compelling reasons to revisit an unusual and thought-provoking book by Henri Bergson – his last major work, Les Deux Sources de la morale et de la religion, published in 1932, and translated into English as The Two Sources of Morality and Religion three years later.2 Bergson was not primarily a political philosopher, and for the most part political theorists have confined their interest to a distinction coined in The Two Sources between ‘open’ and ‘closed’ societies, a distinction that was to become quite influential in later political discourse. But there is much more than that to be found in his book. Bergson raises some basic critical questions about the attempt to domesticate nationalism for progressive political use. Reaching as it does beyond Bergson’s central concerns in psychology and the philosophy of science, The Two Sources may have a somewhat eccentric place even within his own work, although recent discussions have made some very useful connections.3 As for its place in French

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political or social thought, the appropriate context may seem equally elusive, for its sparsely footnoted and meditative text does not employ the conventions and concepts that we would expect in a political theory specialist. I will argue, however, that as political theorists we should read the text as an uncompromising dissent from the dominant French conception of the nation-state.4 Further, I will argue that Bergson defines his dissent at a comprehensive level that invites us to look well beyond the context of inter-war France; it offers a challenge to any view that the nation-state can reach more than a temporary and unstable rapport with values of a universal kind. It denies us the comfort of believing that we can find a secure place for egalitarian and progressive ideals while accepting any principle of exclusive political loyalty. In this respect, it is a book that may at last have found its context, now that the relationship between liberalism and the nation-state has emerged as a central topic of discussion. For what is at issue in that debate is exactly the question that underpins Bergson’s dualism of ‘open’ and ‘closed’: to what extent can we see the exclusive nation-state as embodying, or even as consistent with, a moral project of universal scope? Perhaps it makes sense that this question should have been presciently raised by a public intellectual5 who was thoroughly exposed to, yet not professionally immersed in, the French political tradition, a tradition that confronted him with vigorously assertive claims about the compatibility of the universal and the particular. This chapter is in three parts. The first is largely descriptive and only as critical as it needs to be in setting out the basic elements of Bergson’s view. The second makes explicit the engagement with republican ideology that is crucial to it. The third assesses its importance for current debates about the possibility of liberal nationalism, concluding that it offers questions to currently defended positions. I If Bergson’s book is broadly known at all, it is, as noted above, as the source of a distinction between ‘open’ and ‘closed’ societies that was to become famous in the Cold War period and beyond, thanks to its adoption by Karl Popper.6 Bergson drew the distinction from Ernest Renan’s classification of religions into ‘open’ and ‘closed’ types, that is, religions (such as Islam or Christianity) that seek to embrace everyone and religions (such as Judaism) that (standardly) set tests of hereditary membership.7 Bergson’s use of the terms is much closer to Renan’s than

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to the use which Popper, drawing in turn upon Bergson, was to put them. For Popper, the distinction marked the difference between two differently organized kinds of societies; one kind was ‘open’ in the sense that it recognized the conditions of valid knowledge, conditions that require us to be open at any time to correction – its politics is modelled on fallibilism. The other kind was ‘closed’ in denying fallibilism and in irrationally requiring the endorsement of non-fallible truth as a condition of membership. However, it is essential to Bergson’s view, as we shall see, that the distinction between open and closed should not distinguish between whole (national, organized) societies, or types of national society, and that it should draw attention to a conflict within any (modern) society. In this sense it more closely resembles Renan’s distinction between ‘open’ and ‘closed’ as kinds of belief-system. But it takes the distinction very much further, in bringing it to bear not just upon religious belief but upon whole ideational and motivational aspects of social membership; and it brings it to bear, moreover, as a tension within the experience of each one of us, in telling us that membership within modern political societies is, from a moral point of view, systematically ambiguous. ‘The hardest problems of political theory are conflicts within the individual,’ as Thomas Nagel remarks,8 and Bergson’s book provides an especially powerful illustration of Nagel’s point. Bergson’s argument requires two initial basic assumptions. The first is that ‘our psychical structure originates in the necessity of preserving and developing social and individual life’ (108). This assumption he shares with contemporary American pragmatism. The second is the view that, in tracing out functional contributions to our survival, we are entitled to speak of an ‘intention’ of nature (56, 312). What he says about this may fall within the terrain defended by sophisticated theories of functional explanation:9 or it may go beyond into some kind of pantheism. This question does not affect what needs to be said here about political themes. The closed society, according to Bergson, is the society for which ‘nature’ may be said to have ‘intended’ us, by equipping us with an innate disposition to obey, in the interests of our common and individual survival. In other lines of evolution, such as (notably) those of ‘hymenopterous’ (bee or ant) societies, nature directly implanted detailed behavioural instructions, so that individual members are impelled to the automatic performance of prescribed roles. They are creatures of sheer ‘instinct.’ In the human case, there are no such embedded behavioural instructions. We are creatures of ‘intelligence,’ capable of

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making choices, reflecting on means and ends, and fabricating tools which can modify our environment; we are thus adaptable in ways that other creatures are not. But society cannot be based on so fluid a capacity. So nature has seen to it that we are disposed to give ‘habit’ the same weight as ‘instinct’ has in bee or ant societies, and to see in the totality of socially created habits a powerful obligation. The content of these habits is of course locally constructed; but – Bergson here makes an analogy with language (28) – there is an innate disposition to attribute an overwhelming authority to the habits that our own society has constructed. This sense of obligation is fundamental to our societies’ survival. Functionally, human individuals resemble cells within a single organism. They are physiologically destined to contribute to a larger organization of matter which ensures their common survival. But of course, being intelligent, they cannot accept such a self-representation (9). Since Bergson acknowledges his deep respect for Pascal (183–4), we may recall the picture of human society, in the Pensées, as ‘a body of thinking members’10 – parts of a whole, we demand an account that makes sense of our place in terms which acknowledge our own value. Here intelligence steps in, but as the servant of habit. It devises reasoned explanations of why we are obliged; but it cannot motivate. It cannot get us from is to ought. Its conclusions can motivate only to the extent that they coincide with what is dictated by habitual predispositions. Intelligence can consist with social obligation because its conclusion is already predetermined – we are obliged, and, captured by the closed society, intelligence will never find anything but reasons that explain why. It will devise schemes of justification, such as utilitarianism, relating obligation to the pursuit of pleasure; but these work only because, as creatures of society, we take ‘pleasure’ in the good opinion of others, and so the performance of duties which are useful to society is already inscribed in what pleasure is said to motivate (37, 90). And the conclusions are spurious, for on any frankly hedonistic account, Bergson believes, society would be entirely dissolved, for we would all be entitled to put our own pleasure first. Alternatively, we might try a Kantian approach, rejecting an inclination-based theory for a duty-based one, explaining duty as a feature of rational self-consistency: but self-consistency functions as a requirement, he argues, only because we are reflecting on concepts such as ‘promising’ that are already shot through with obligatory force. Moreover, we encounter Kantian duty, Bergson argues, only on those rare occasions when inclination lapses -- just as (in his rather unkind analogy) we

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encounter rheumatic pain only when the normal functioning of our limbs fails (21, 86). The truth is that, generally speaking, we do what is required of us quite unreflectively; it is only when we hesitate or fail that ‘duty’ assumes the force of an external imperative with ‘categorical’ or absolute force. And when it does, we are in exactly the same position as a hypothetical rebellious ant, who, wondering suddenly why she should selflessly devote her life to the colony, finds the reply: you must because you must (23). She encounters this imperative unreflectively, whereas for the human it is the predestined outcome of reflection. But on Bergson’s own account, intelligence is not, one should note, quite as servile as the above implies. Always within the constraints imposed by overall social solidarity, intelligence exercises a kind of generalizing or liberalizing effect. In an interesting passage that undercuts his view that intelligence cannot motivate, Bergson acknowledges the effects of what he terms ‘logical pressure’ (282–3).11 By this he means that, in the course of rationalizing our obligations, intelligence develops principles that, when taken further than the immediate occasion requires, lead to conclusions beyond those required by mere social solidarity. We might, for example, imagine ‘equality’ to be a principle of this kind: initially something valued as a source of solidarity among a sub-group (male warriors, say), it may take a series of steps that penetrate other functional areas and embrace other sub-groups, so that eventually it imposes demands that the initial value of solidarity could never have dictated. This model is inconsistent, I believe, with Bergson’s general view that reason can lead only to conditional conclusions that cannot independently motivate – consider the very idea of logical pressure. Be that as it may, the point is greatly overshadowed by the second major part of Bergson’s argument, that is, the idea of the open society, which is the principal source of the transformations undergone by modern societies. The open society, as he defines it, is the society of all human beings – the Stoics’ cosmopolis, although the Stoics’ idea awaited motivational endorsement by Christianity (60, 93). It is arrived at, he claims, not by instinct or intelligence but by intuition: a powerful insight into the unity of the human race, often informed by a vision of its unity in God. Bergson distinguishes between the obligation of the closed society and the appeal of the open society. The closed society imposes itself on us by a compulsion that invades and controls our reasoning faculties; the open society, represented by great moral figures, exercises an appeal to our imagination. It takes us out of the realm of consequential reasoning into a recognition of absolute and uncalculated imperatives. The topic of

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‘justice’ perhaps best demonstrates Bergson’s idea (69–76). To begin with, we may imagine, justice was a matter of balance or equity in the exchange of goods. It was then extended, we may suppose, to the idea of balance among persons, in the sense of requiring that injury be returned for injury. Perhaps then, while still retaining the original idea of balancemaintenance, it was further extended to the relations between rulers and ruled, and to the relations between social classes. But we cannot get from this to the idea of an absolute requirement. Suppose that the human race could survive only if one individual suffered eternal torment? When we say ‘No! A thousand times no! Better to accept that nothing should exist at all!’ we have moved decisively beyond the idea of maintaining order to an idea which accepts the destruction of order altogether. Bergson is especially concerned to show that the imagination of a human society is not achieved stepwise, by a series of extensions of our idea of obligation – a point that he makes repeatedly (32, 38, 53, 267). That idea is, he says, a retrospective illusion of the kind that intelligence typically spins. Having arrived, somehow, at the idea of an open or universal society, we can then construct a series of concentric circles of association and regard them as differing only in scale. But while this model may work up to a certain point, beyond that point it disguises a discontinuity. It is right to see tribal or perhaps even national12 feeling as enlargements of family ties; but to get from the nation-state to universal society involves a step similar to that involved in the evolution of ‘justice’ described above. It involves a leap of imagination. Here Bergson relies on two main reasons. The first is implicit in the distinction between compulsion and appeal: nation-states attach sanctions to their imperatives, while the open society draws us by moral attraction. The second is that closed societies are necessarily exclusive, in that their solidarity requires borders and, beyond them, foreigners. ‘It is primarily as against other people that we love the people with whom we live’ (33: I have made the translation gender-neutral. See also 234, 283, 286). To these we may add, on Bergson’s behalf, a further implicit reason – that nationstates are not simply associative entities but organized ones, imposing on us not only general rules but also strategic imperatives that sweep all considerations of humanity aside: it is not simply that they limit the scope of consideration to the space within their borders, but that, as organizations with collective goals, they also require us, from time to time, to override the humanity of other individuals who share that space with us. That is something that the open society cannot do, for it consists in nothing less than the recognition of shared humanity.

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The open society is not and (very probably) will never be an organized society (95). But it exerts an effect on closed, organized societies, by holding up an ideal of equality which modifies their practices. It leads them to emancipatory projects, enormously reinforcing that ‘logical pressure’ towards equality which arises from our reasoning capacities. If modern states have abolished slavery and (legal) persecution, and have made large steps towards at least formal social equality, that is principally because of the more or less diffuse impact upon them of the ‘open’ religions: Bergson refers to the religious influences upon Kant, Rousseau, the American Declaration of Independence, and the French Declaration of the Rights of Man (282). Through the mediation of Kant, Rousseau, and the revolutionaries of the Enlightenment, cosmopolitanism irrupted into modern political thought. True, only a few ‘heroes of the moral life’ (50) can actually live according to the cosmopolitan and universal vision, entirely overcoming national identity: nevertheless, their vision and example – mediated, no doubt, in complex ways – draw civilized nations in the direction of equality. As a result, we live in neither closed nor open societies but in ‘societies becoming open.’ They are societies in which a kind of moral merging or blurring has taken place: universalist principles take on something of the obligatory force contributed by closed groups, while the closed morality of group loyalty is both modified and justified by principles of moral generalization. Bergson’s readers may perhaps find it difficult – as I do – to distinguish between the effects of the operation of intelligence and the impact of the ‘intuitive’ idea of an open and universal society. For they both tend in the same direction, and we are given no clear indication as to how to demarcate their respective effects. Bergson’s idea of the ‘logical pressure’ of intelligence challenges, implicitly, the claim that impartiality is a subordinate moral element that tells us to be impartial among members of a class, but which cannot tell us which class counts from a moral point of view: Andrew Oldenquist13 and David Miller14 put forward such a view, in the course of fending off a cosmopolitan view that turns impartiality into a weapon against national preferences; impartiality, they claim, is simply a requirement of consistency that operates within a class of moral concern, while having no power to extend it. It is clearly Bergson’s view, however, that impartiality tells us to extend the class of moral concern, that once we acknowledge the claims of impartiality we will experience an indefinite expansion of the scope of our obligations – and so it is not the case that impartiality is powerless to affect the classes of moral concern. He also notes, however, that this cosmopolitan drift will be

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abruptly arrested at the point at which national identity is challenged – that we are naturally predisposed to stop the moral argument at a certain point.15 Perhaps, then, we can tentatively suggest the following conclusion: intelligence generalizes, leading us beyond our natural loci of attachment; it reaches a powerful irrational barrier, however, at the national border, and cannot motivate a further extension; at that point, universal moral visions may supervene; and when they do, they tend to reach back into the internal relations within nation-states. They do so partly because they tend to merge with the ‘opening’ effects of intelligence; but also partly because nation-states recognize in open morality a powerful rival and do what they can to ‘humour’ it (31) – to co-opt its language for their own purposes in order to forestall the (from their point of view) destructive effects of its maximal demands. We shall return to this important point later. II If we ask what might have motivated this line of thinking, then surely we do not have to look far at all. As is well known, there was, and is, a particular ‘French’ conception of the nation-state as a vehicle for ends that in principle are universal. As distinct from (say) the ‘English’ or the ‘German’ views of the state, though somewhat like the ‘American’ view – these adjectives in quotation marks because they are so stylized – the ‘French’ view, in the post-Revolution period, is that a state is legitimate if and to the extent that it embodies Enlightenment values of reason and equality.16 In the face of counter-revolutionary, conservative, and generally Catholic advocates of le pays réel, the Jacobin-descended, liberal, and generally secularist advocates of le pays légal argued that a state’s legitimacy depended on its meeting high standards in terms of popular representation and the legal enforcement of basic rights. A basic implication of their claim is that we should see the nation-state as simply an instantiation of a universal and rational demand. It is just a local way of giving expression to a human right or need. So this is the particular ideological form in which Bergson encountered the large questions that he addresses. Such a view was put forward by, most prominently, the Kantian republican philosopher Charles Renouvier17 and by the sociologist Emil Durkheim in several works, notably a course of lectures intended for the republican inspiration of schoolteachers, a task that reveals the highminded political motivation of Durkheim’s educational writing.18 Here I

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want to focus on Bergson’s response to Durkheim – his former colleague at the Collège de France – both because his book’s relation to Durkheim is so central to it, and because Durkheim’s political and educational thought offers so perfect a target for Bergson’s critique that it clarifies the precise direction of its aim. As Kolakowski suggests,19 we may see in The Two Sources a particular aspect of Bergson’s critique of materialism in science, and his attempt to rescue a spiritual dimension from it. While earlier works (such as Matter and Memory) had taken on the challenge posed by neuroscience, The Two Sources takes on the challenge posed by social anthropology. In particular, as Kolakowski notes, it takes on the challenge posed by Durkheim’s religious anthropology in The Elementary Forms of Religious Life, and that book’s claim that religion is reducible to the requirements of social solidarity. As we have seen, Bergson’s response is, essentially, a rival claim that the reductionist hypothesis applies only to one form (the closed) of religion, and that its other (open) form is wholly irreducible in terms of the functional requirements of society – it transcends them. But a still more precise source of concern can be identified in Durkheim’s work. Bergson’s book dissents, more particularly, from Durkheim’s later view of religion, a view that was part and parcel of the ideology that he evolved in defence of the Third Republic. Durkheim is often associated with a functional view of religion that, like ‘closed religion’ in The Two Sources, serves essentially to promote cohesion and loyalty and to curtail the potentially dissolving power of criticism. It is religion viewed in this way that is destined, as he famously claimed in The Division of Labour in Society, to wither away as modernization proceeds, and as social solidarity comes to be based on the ‘organic’ ties of interdependence within civil society, rather than on shared rituals and myths. But as Durkheim’s thinking evolves, a different picture of religion is formed. He comes to think that it is essential to any society; and now the division of labour comes to play a very different role. In works such as ‘Individualism and the Intellectuals,’ the stress comes to fall on the fact that, as labour is divided and professional differentiation intensifies, ‘we are proceeding towards a state of affairs in which the members of a single social group have nothing in common other than their humanity, that is, the characteristics that constitute the human person in general.’20 This gives rise to a new ‘religion’ of human rights, individual dignity, and moral equality. Arguing that modern societies have come to depend on a religion of this kind, Durkheim wins the high ground against reactionaries who cling to the view that solidarity depends on

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maintaining traditional institutions at all costs. The truth is, Durkheim maintains, that the defenders of rights and the opponents of racism – he is thinking, of course, of the dreyfusards – are today’s true patriots, for they uphold the civic religion of the modern state. In this doctrine’s most developed formulations, the books given the English titles of Moral Education and Professional Ethics and Civic Morals, Durkheim effectively merges political obligation and moral duty. In the former work, Durkheim sets out the intellectual basis for a ‘purely secular moral education’ to be given in French public schools. It is to be purely rational, replacing mystery with science, while borrowing devices from traditional religion for rhetorical and motivational purposes. The morality that it teaches is to be universal or ‘human,’ but it is also to show that ‘family, nation and humanity represent different phases of our social and moral evolution, stages that prepare for and build upon one another. Consequently, these groups may be superimposed without excluding one another.’21 Professional Ethics and Civic Morals adds to this the explicit claim that in the French republic ‘all contradiction between cosmopolitanism and patriotism disappears’; and we are offered an elaborate development of the theme of ‘Individualism and the Intellectuals’ – that the solidarity of the modern state is constructed on the basis of ‘a cult of the human person.’22 In light of views such as this, the central line of critique in The Two Sources is easily explained. From a political point of view, it is a book about the risk of forgetting that the modern state still depends on the ‘closed’ religion of loyalty and exclusion, and about the naivety of supposing that it has become nothing more than a fragment of cosmopolis, embodying merely the duties of one human being to another, restricted – altogether contingently – within borders. ‘Society,’ Bergson says, has an interest in our believing this, because it closes off the critical questions that would arise if the idea of universal human obligation were taken seriously and without geographical restriction. ‘Oh, I know what society says,’ he writes: ‘it says that the duties it defines are indeed, in principle, duties towards humanity, but that under exceptional circumstances, regrettably unavoidable, they are for the time being inapplicable.’ To examine the truth of this idea, we need only ask what happens in time of war, when every rule of human obligation is broken, and murder and perfidy become legitimate: ‘Would this be possible, would the transformation take place so easily, generally and instantaneously if it were really a certain attitude of man towards man that society had been enjoining on us up till then?’ (31). Society’s voice,

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in this imagined exchange, is that of the later Durkheim and of the republican tradition of French political argument. It is also, we may note, a voice that Bergson himself had adopted, temporarily, during the First World War, when he had lent his weight to the claim that the cause of his own country was the cause of human civilization itself23 – a claim ‘characteristic of propaganda of the period,’ as one commentator forthrightly notes:24 so The Two Sources may well derive some of its critical dynamic from self-correction too. It is a commentary on the astounding capacity for violence displayed by the modern state, with the connivance not only of destructive technology but also of wish-fulfilling moral philosophy (and moralizing social science), and with the compliance of even enlightened public opinion. Bergson has three objections to the Durkheimian view. The first is that it misrepresents the origin of ideas of equality and shared humanity, which arise not from the erasures that Durkheim appeals to – all other common ties are erased by social differentiation, so nothing but humanity is left – but from a positive and transcendent vision, discontinuous from the morality of order-maintaining rules that Durkheim takes to exhaust morality in general.25 The second is that it protects the modern state from the further consequences of this vision; claiming to be already universal, barring certain merely contingent restrictions, the state excuses itself from the radical demands that flow from the vision of human unity, by claiming to satisfy those demands on a contingently limited yet morally adequate scale. The third is that the neglect of the closed morality and religion that still underpin the modern state blinds us to its potential for gross acts of violence. It may ‘humour’ cosmopolitanism by claiming to be its bearer, but in reality it is a murderer in waiting, potentially lethal not only to those whom it excludes, but also to those whom it includes, for it is not their humanity but their membership that it puts first. III Bergson’s central question – can we see the nation-state as a bearer of universal obligations? – has been revived, in a more academic and usually more precisely stated form, in contemporary political theory. It can no longer be complained, as Bergson did, that the nation-state hovers in the background of political thought as a sort of taken-forgranted fact, unexamined and unjustified; one of the achievements of the last two decades is to expose it to searching normative critique.

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Among those who believe that the nation-state (in some form) can survive critique, we may distinguish three main positions,26 which of course are necessarily painted in very broad strokes here. Moral cosmopolitans maintain that particular obligations, such as the obligations among compatriots, can only be local instantiations of universal ties;27 partialists28 contend that, on the contrary, we can make sense of institutions such as nation-states only by giving moral weight to historically given particularity;29 while for dualists, there are simply irreducibly distinct forms or levels of obligation.30 We can begin our assessment of Bergson’s contribution by asking about the relationship between his text and these three positions in turn. What The Two Sources has to say to the moral cosmopolitan position needs to distinguish between descriptive and normative elements in that view. To the extent that it claims to offer an account of how we come to have the obligations that we do, then obviously it is vulnerable to any sort of anthropological account of the genesis of attachment and identity. On the other hand, of course, to the extent that the position offers only an account of the obligations that we should have, it can sweep Bergson’s (or anyone’s) anthropology aside as a version of the genetic fallacy – what does it matter if morality has two sources, or one, or many? Now we might reply, on Bergson’s behalf, in two ways. First, we could raise the question of motivation. It may or may not be true that the very idea of obligatoriness arises from the constraints of the closed society, and is borrowed by, and lends weight to, the aspirations of reflective morality – it is hard to know how to test this interesting but speculative claim. But it is at least true that political society rests not on reflective morality but on compulsory demands; that whereas how we ought to live is the subject of indefinitely extended inquiry, what we have to do is not. So in that respect, our obligations to states are not motivationally like ideals or values. Second, we might point out that Bergson’s argument is only in part about the genesis of attachments: for it is also, and no less importantly, a matter of prediction. We can plausibly explain political and social obligations as local examples of universal values, but outbreaks of patriotism will embarrass the explanation – to quote again, ‘Would this be possible ... if it were really a certain attitude of man towards man that society had been enjoining on us up till then?’ The moral cosmopolitan could – and rightly, I think – reject these responses as nothing more than revivals of the original failed objection, for they appeal simply to feelings or attachments that people now have and by extrapolation may continue to have, and so do not defeat the

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ideal of a world in which corrected local obligations nest within and exemplify universal ones. But what Bergson’s argument challenges is the moral cosmopolitan’s decision not to become a political cosmopolitan, and to abandon the nation-state entirely. That decision cannot set empirical and motivational questions entirely aside. It has to rest in part on assessments of the scope and strength of human attachment, of the potential of institutions, and of the reasons why humans have the history that they do have. Without such assessments, the refusal of political cosmopolitanism, from a moral cosmopolitan starting-point, can only be arbitrary. And Bergson’s argument amounts, in effect, to the view that moral cosmopolitans need to think again about the nation-state. Moral cosmopolitans have, of course, been fully open to the issue of national exclusiveness, an issue that (however fraught with practical difficulties) can be addressed by means of critical discussion of such matters as international exploitation, wealth transfers, debt forgiveness, foreign aid, and immigration and refugee policy. But Bergson’s argument suggests that exclusion, although of huge importance, is still not all of the picture. First, nation-states could not exist at all unless they drew upon and cultivated compliant motives that are ultimately inconsistent with reflective morality. Second, nation-states depend not only on the exclusion of the other but on the mutual instrumentalization of their own members, who, however much they might like to describe their mutual relations in universalist terms, may effectively see one another as co-participants in a collective project. If these claims are true, then the acceptance of nationstates works towards the complete vitiation of cosmopolitanism, and far from being the local vehicle of universal obligations the nation-state is their principal enemy. If one takes Bergson’s claims to be well founded, then perhaps the only plausible and consistent form of cosmopolitanism would be an obligation-dispersing project, as we might call it, of the kind advanced in the nineteenth century by theorists such as P.-J. Proudhon, in the twentieth century by pluralists such as G.D.H. Cole, and in our own time by, for example, Thomas Pogge.31 If any single focus of loyalty will tend to dehumanize those who are excluded and to instrumentalize those who are included, and if this is a permanent fact about how human minds and political institutions work, then surely the solution is not any reform or idealization of the state, but some form of federalization in which no attachment invites exclusive or paramount loyalty? Rather the same view of cosmopolitanism is advanced, on behalf of the partialist alternative, by David Miller. Criticizing the view that we can see nation-states as local examples of universal ties, Miller remarks that

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‘the consistent universalist should regard nationality ... as a limitation to be overcome,’ and that the choice is between ‘a more heroic version of universalism’ which abandons national organization altogether, and a partialist view that recognizes the basic moral standing of local attachment.32 If this forced choice is to be avoided, Bergson’s argument suggests, it can only be by means of a deeply pessimistic alternative. Reverting to the core distinction between compulsion and appeal, one might reply that nationality, although indeed a ‘limitation,’ cannot in fact be ‘overcome,’ because even though we take open or reflective morality to be the criterion of rightness, it is not capable of founding or sustaining social and political institutions of a compulsory kind – historic communities provide a necessary ‘substratum’ (91); and one could deny that this amounts to taking the partialist route which theorists such as Miller offer, on the grounds that closed and unreflective attachments are not of unconditional33 moral value (basic or otherwise), but only of instrumental value – they provide the ‘substratum’ on which the open and reflective morality can then work. This is a pessimistic reading, because it leaves us with a permanently unresolved tension. It accepts that the nation-state is the enemy of reflective morality, but denies that reflective morality can do without it, and so it foresees permanent hostility between the preconditions of organized political life and the achievements that make it valuable. This is, perhaps, a form of ‘moral cosmopolitanism,’ but it is a form which is very much more conflictual and less upliftingly palatable than current versions are. Likewise, if Bergson is a partialist, his is a version that dissents emphatically from current varieties of the position. As we have seen, he would accept something like the partialists’ claim that universalists cannot give a convincing account of local attachments. But he would certainly reject entirely the partialists’ claim to have a convincing account of universal human ties. Starting from a ‘thick’ conception of morality, as embedded in concrete ties of kinship or collegiality or citizenship, the partialist sees moral ties as springing from relationships: but there is no reason, Miller argues, why we should not accept that one is related by a shared status to other humans.34 Likewise, according to Andrew Oldenquist’s article on ‘Loyalties,’ while the impartialist fails to acknowledge the importance of concrete ties to moral life, the partialist can encompass the truth in universalism by imagining a human loyalty.35 A similar view is developed by Richard Rorty, who proposes to replace ‘Enlightenment’ ideas of universal justice with the idea of ‘a larger loyalty.’36 The Bergsonian reply to this, I believe, is that the proposed

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continuous step from particular to general ties is unwarranted, for, ironically, it leaves behind exactly what it is that makes special ties important – i.e., their specialness. It recalls his insistent critique of the ‘concentric circles’ model and of the spatial homogenization that it implies.37 For one thing, sub-universal ties are reinforced by their exclusiveness, deriving solidarity from the presence of the ‘other.’ For another, ties falling short of some threshold of scale are reinforced (to varying degrees) by (some or all of) shared interests, concrete interdependence, reciprocity, common traits, and subjective identification; and wherever this threshold is, a ‘tie’ based on shared humanity is beyond it, and it may be another homogenizing illusion even to speak of it as a ‘tie.’ What makes it more than a category, Bergson believes, is a vision with categorical moral force that does not complement the other ties that we have – it may tend, in some cases, to dissolve them. (Consider, for example, the idea, in contemporary political thought, of ‘human rights’: its point is not primarily to add a further layer of obligations to those that we already have, but to interrogate and filter the obligations that we think we have now, by comparing social and political conventions with what a person’s humanity requires.) Bergson’s most important dissent, however, concerns the understanding of, specifically, national ties. Here we must note again an equivocation in The Two Sources. At one point, reflecting on the ‘concentric circles’ metaphor, Bergson apparently agrees that we can see nations as resembling large families, though he then draws the line at extending the metaphor further. But at two later points, he offers a very different view: there may be (tribe-like) entities that are larger than families while resembling families, he says, but the nation-state far exceeds them in scale (56, 275). It is not the ‘simple community’ for which human nature is fitted. It could not even have come into existence without borrowing from universalism; it requires us to accept obligations to others who are unknown to us, and it can do this only by adding general rules of conduct to simple unmediated face-to-face solidarity. Recognizing cosmopolis as a fatal enemy, it is compelled to ‘humour’ it by representing its own claims as universalizable – a process which we can see so clearly in Durkheim’s republican pedagogy (or, indeed, in Bergson’s own regrettable wartime propaganda). But its general claims are captured and stabilized so that they expire when we reach state boundaries; only in rare moments of cosmopolitan passion do they take us beyond. And in moments of nationalist passion, general rules are suspended by a sort of simulacrum of the family or tribe, the nation coming to be

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imagined, fantastically, as a face-to-face society. But the fact remains that an association on the scale of the nation-state could never have come into being without expansive moral generalization – without the capacity to give weight to the interests of non-intimate others. The nation-state is the repository of all kinds of ideals and visions of an ‘abstract’ (19) kind, differing qualitatively from shared intimacies and concrete personal attachments. If that is so, then the question of nationhood needs to be separated, or at least distanced, from the question of special ties. Perhaps there is a right answer to the difficult question of what a special tie is. But even if so, that answer will not settle the question of what the nation-state is, because a nation-state simply is not a familial or tribal entity. That conclusion, I take it, would be problematic for the nationalist: for if the nation-state as we know it has already taken on board some crucial universalist elements, it becomes conceptually difficult for its supporters to resist their further, cosmopolitan, extension. Their resistance can no longer be based upon the specialness of special ties, because those ties have already been stretched and modified by a cosmopolitan vision in order to reach state boundaries; and once one’s debt to a vision has been acknowledged, it is harder to refuse to go where it takes one. We might be pressed, then, towards the conclusion that Bergson is – as the title of his text itself suggests – a dualist, dissatisfied with both the moral cosmopolitan and the partialist views. Again, however, his dualism would be of a quite distinctive type, for it stresses the thorough interpenetration of elements, rather than their coexistence. The dualist theorists mentioned above, Thomas Nagel and Samuel Scheffler, attack the ‘reductionist’ view (Scheffler’s term) that special ties can be explained as instances of universal ones. For Nagel, there simply is an irreducible difference between a partialist perspective in which my interests and attachments count for something, and an impartialist perspective in which everyone has, as it were, an interchangeable status: to attempt to remove either is to throw human life out of shape. For Scheffler, it just is part of what we mean to have relationships that special responsibilities go along with them: we do not need some further, impartialist, reason to accept them. We find much the same view in Bernard Williams, who argues that if one looks for a general reason to save one’s spouse from a fire then one has ‘one thought too many.’38 Here, intriguingly, we are squarely back in the realm of Bergson’s first morality, the morality of ‘you must because you must,’ a realm in which society is secured by powerful compulsions built into the very meaning and definition of

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identities and relationships, rendering any thoughts at all unnecessary. But Bergson is not ready to regard this as a separate moral realm. It has been deeply modified over time by universal beliefs, in such a way that social behaviour is characteristically overdetermined, reflecting as many as three moral vectors: ‘natural’ attachment, a generalized but still exclusive solidarity, and a recognition of shared humanity. Modifying an example from Christopher Wellman,39 we may imagine all three of these being invoked in relation to a single relationship, in response to varyingly stringent degrees of stress: ‘But you are my son’; ‘After all we’ve been through’; ‘How can you treat another person like this?’ An issue of this kind may arise especially clearly in connection with the contested moral understanding of the family in recent thought: some claim that families embody a set of ties of a partialist kind that would be impoverished by being translated into general obligations, while others claim that families, like any other institution, are fully subject to the demands of justice and require the recognition of rights.40 Bergson’s position may be instructive here in suggesting that the problem may lie not in choosing between these views but in understanding how both can be plausible; it is true that relational terms such as ‘wife’ or ‘son’ evoke immediate commitments, but it is also true that what is contained in those commitments has already been drastically modified by wider moral considerations, and so can hardly press any claim to become immune to them now. (The relational term ‘widow,’ after all, may once, in certain cultures, have immediately connoted the duty of self-immolation.) And if even family relations may invite this sort of equivocality, one may easily imagine how much more a nation-state will invite. We would have to disentangle the various moral relations produced by a common history from the more specific moral effects of shared citizenship and the ideals comprising that notion; we would have to separate what is due to the fact of nationality from what is due to general ideas of nationhood already coloured by universalizing pictures of the nation’s place in the world.41 And we would have to face the task of taking account of the complex ways in which all these moral elements had modified each other over time. Surely that amounts to a generally accurate (if still incomplete) sketch of the difficulty of giving a morally adequate assessment of the value of nationhood itself. If in principle there is dualism, in practice there is something more like collusion, which Bergson in part welcomes, as the means by which duties come to be motivated, and feelings come to be moralized. We need overdetermination because without it our moral feelings could

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never be changed or enlarged and because without it our moral duties would have the status of mere optional ideals. But this benign sort of confusion is only the obverse side, as we have seen, of a much darker and bleaker picture which compels us to recognize insoluble contradictions. Within the overlap between the two moralities, attachments and aspirations may reinforce and sustain each other in a life-enhancing way. At the edges, however, there is something more like open warfare between two conceptions of life, each side seeking convergence with the other only in order to contain and subvert it. And yet, all the same, if it is a war it is still a civil war, in which the two sides are too intimately connected to be altogether separable, as they have taken on too many of each other’s aspirations. IV Bergson, to repeat, was not a political philosopher, and although a moraliste he was not a moral philosopher either. The Two Sources does not solve problems in the way that political and moral philosophers set out to do, and in fact it takes an abrupt view of moral philosophy, which Bergson (wrongly) regards as precommitted to the defence of solidarity. Rather, what the book offers is a deeply imaginative picture of the human condition. Its importance for the political or moral philosopher may ultimately be of the questioning kind. It tells us that moral cosmopolitans may have failed to grasp how profound an obstacle is posed for them by the nation-state; that partialist theorists of nationalism may have failed to grasp how much they already owe to universalism, and how little they can now consistently refuse it; and that dualists may be trying to separate what has already become inseparable. In short, it is a book that has the potential to disturb some of the basic ways in which issues about nationalism and cosmopolitanism have recently been framed. Above I quoted Nagel’s provocative observation that the hardest problems of political theory arise from conflicts within the individual. If not universally true, it is true for a powerful tradition of political thought that extends from Plato, Seneca, and Augustine through Rousseau to Freud and beyond; and Bergson’s Two Sources may be its best twentiethcentury exposition. The conflict between the closed and the open does not refer only to an articulation of relations among people: it is a public dramatization of an internal tension between grown attachments which constitute selfhood, and future-regarding ideals of self-overcoming.42 It is not a conflict that can be resolved by choosing sides, for closed

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compulsions and open appeals constantly shape, modify, and depend upon each other. Likewise, in its public form, the conflict requires continual boundary-crossings that produce a mingled and hybrid political morality, and one that is inherently unstable. Perhaps it is better to think of ‘liberalism,’ in this context at least, not as a label for a particular moral and political settlement, but as a name for a state of constant protest43 that puts every proposed settlement under question; if so, ‘liberal nationalism’ names a dilemma, for it incorporates a critical force that constantly tends to expose nation-states to the claims of cosmopolitan morality. In this respect, Bergson was prescient, for as the next chapter illustrates that exposure was eventually to bring about a potentially far-reaching challenge to the nation-state’s protective principle of sovereignty.

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9 What Is Crime against Humanity?

The fate of the League of Nations, to which Bergson had lent his considerable prestige, is well known. But in the aftermath of the Second World War, internationalist impulses emerged again in renewed demands for a global legal order that would restrain the worst excesses of nation-states. Those demands were very imperfectly reflected in the Charter and in the procedures of the Nuremberg Tribunal, a victors’ court rather than an international one, legally speaking. But after more than five decades of snail-like progress, an international criminal court was finally proposed in the 1998 ‘Rome Statute,’ a document giving a clearer and less restrictive meaning to the novel Nuremberg offence of ‘crime against humanity.’ Now that notion again of course raises questions about the meaning of ‘humanity,’ already touched on in several of the earlier chapters. But it adds to these a further question, about ‘crime.’ The acts comprising the offence are, after all, quite unlike the crimes familiar to most of us. They are not (by definition, anyway) acts forbidden by a sovereign, a standard feature of the normal definition. One might then sympathize with Hannah Arendt, who at one point questioned the use of juridical categories in attempting to capture a form of horrific evil that ‘oversteps and shatters all legal systems.’1 We could of course forestall any general inquiry into the meaning of the idea, by taking it simply as a term of international law. Then ‘crime against humanity’ would just be a violation of a rule held to be authoritative by international bodies or by general consent, and its content would just be whatever was forbidden by the relevant statutes or conventions. But for at least two reasons the question resists being positivized in this way. First, if the offence lay in the fact that it was prohibited, then every violation of international law would become ‘crime against humanity’

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and nothing would remain to distinguish this category (except its name). Second, no uncritical history of the evolution of the idea can square it with the ordinary history of law. For their own purposes, the architects of the Nuremberg Charter, which introduced the offence of ‘crime against humanity,’ did whatever they could to conceal its novelty, and to render it organic with previous international law. But Judith Shklar, among others, drew attention to the pretences involved here – not in a hostile spirit, but in the course of insisting that law is more creative than its practitioners like to admit, and is and should be open to powerful moral influence.2 Whatever one thinks of Shklar’s general view of law, it is clear that the idea of crime against humanity expressed a sense of moral outrage before it became an international offence – it was wrong before a law could be contrived to condemn it. The idea of crime against humanity resists confinement to a legal context. Both before and after the crime’s incorporation into international law, invoking ‘humanity’ has been one of the standard means of expressing horror and revulsion at acts of great evil. J.S. Mill, for example, spoke of the slave trade as not only a ‘national crime’ but also ‘a scandal to humanity.’3 And since Nuremberg, it has remained a way of expressing outraged revulsion that owes nothing to international law at all. Crime against humanity signifies ‘a level of callousness that embodies the very essence of evil itself.’4 Indeed, it has sometimes been suggested that it is not just legal thought, but discursive thinking generally, that is unable to seize evils of great magnitude; that only poets and novelists, not lawyers or philosophers, can convey any real sense of what is at stake.5 I mention this view, not at all in order to endorse it, but only in order to illustrate the distance that some see between the rational-legal treatment of great evil and its moral phenomenology, and the irreducibility of crime against humanity to anything like a topic in international law. And yet, the evil in question is defined in terms of the figure of crime. Why is this? Why should moral condemnation be expressed in a legal category – especially when the category fits only imperfectly? This chapter offers an answer to this question, suggesting that although ‘crime against humanity’ is a figure of speech it is a revealing one. An attempt is made to find a reflective equilibrium between the moral experience of crime against humanity and some essential moments in its legal history. It argues that the figure of ‘crime’ enables us to identify a specific kind of evil that differs from (for example) generic inhumanity and from the violation of human rights. Needless to say, this argument does not

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attempt to substitute itself for the legal argument that has governed the post-Nuremberg evolution of the idea: law has its own requirements, which impose their own logic, and it is naive to think that the way a legal category functions must map perfectly onto the shape of a moral experience. But all the same, to the extent that moral norms exercise any shaping effect on international behaviour,6 it must be important to examine the moral logic of the categories through which the conduct of nations is renegotiated, and new forms of regulation are agreed or imposed. With only a few exceptions – Hannah Arendt’s Eichmann in Jerusalem is the most famous – political theorists have not examined the idea of crime against humanity very closely. Nevertheless, discussions of the idea make explicit or implicit claims about what crime against humanity is, and the first three sections of this chapter review three kinds of claim, finding them wanting: they capture either too little or too much, it is argued. The fourth section proposes a definition, and the fifth – in a way that obviously has to be exploratory rather than conclusive – assesses it against some controversial applications. The idea offered here is that crime against humanity is best thought of as a moral inversion, or travesty, of the state; it is an event that can occur only when three distinctive and essential resources of the state are put to malign use. The constructive part of the argument makes elementary use of the social contract model, and is in the broadest sense ‘Lockean.’ I Before Nuremberg, the idea of ‘crime against humanity’ made some preparatory appearances in international discourse, especially in connection with the Turkish massacres of Armenians in 1915, condemned by the great powers as ‘a crime against humanity and civilization.’7 But it did not become a justiciable crime until, thirty years later, the Charter of the International Military Tribunal (which was to sit at Nuremberg) added it to the list of war crimes with which surviving Nazi leaders were to be charged. The subsequent history of the idea has been similarly deliberate, as well as piecemeal. But step by step, many of the restrictions stated in the Nuremberg Charter have been removed, and crime against humanity is now clearly part of a functioning, institutionalized system of international criminal law, applied, especially, in the aftermath of events in the former Yugoslavia and Rwanda.8 The Nuremberg Charter (and the Tribunal, in interpreting its terms of reference narrowly) insisted

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that crime against humanity was a type of war crime, one committed against civilian populations in the course of pursuing a war in the traditional sense; but subsequently this ‘war nexus,’ as it is termed, was removed, and crime against humanity as currently defined can be committed by officials of a state against that state’s own population and without the need for any context of international conflict. The Nuremberg Tribunal was a court established by the Allied powers, and was given jurisdiction as an agency of occupying forces which for the time being exercised sovereignty over Germany – it was, conceptually, a sort of unusual domestic court; but crime against humanity is now a crime that can be tried and punished by the international community (if the state immediately responsible does not do so). And finally, the list of offences constituting crime against humanity in the Rome Statute, setting out the terms of reference for the International Criminal Court, covers more than the ethnically or religiously based genocide that was obviously the main concern of the Nuremberg Tribunal; the sixteen offences listed include, for example, deportation, rape, enforced disappearances, and the practice of apartheid (article 7.1. d, g, i, j). From a practical legal point of view, attention rightly centres on the question of jurisdiction. Faced with manifestly evil acts which, being committed by states, are beyond the reach of domestic law, one naturally wants to create means to prevent them or at least to punish those who are guilty of them. The idea of crime against humanity provides one powerful justification for doing so. To Geoffrey Robertson, the author of a major and comprehensive recent study of crime against humanity, the idea is above all ‘the key to unlock the closed door of state sovereignty, and to hold political leaders responsible for the great evils they visit upon humankind.’9 Functionally, the idea thus closely resembles an ancient expedient adopted against piracy: since pirates operate outside anyone’s jurisdiction they fall outside everyone’s, but declaring them to be ‘enemies of the human race’ empowered any state to hunt them down and destroy them.10 The appeal to ‘humanity’ is, in both cases, essentially a response to a jurisdictional vacuum. This is clearly an important consideration, which we shall return to later: but as stated it does not take us far enough, for the door in question has several keys. First, the vacuum thesis would hold in a world of Augustinian realism, in which kingdoms are to be regarded as virtually autarchic, subject only to occasional reservations about ‘abominable crimes’ of a very extreme sort. But even in a world in which states by and large pursue their own interests, sovereignty has been porous, sometimes to the benefit of

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minorities and oppressed groups.11 Second, the thesis would hold in a world of Walzerian communitarianism, in which nations are wholly selfdetermining, short of offences that ‘shock the moral conscience of mankind.’12 But other theories of politics, of course, impose closer and more immediate constraints on the legitimacy of state action, as does international law.13 Beginning in 1948, with the Declaration of Universal Human Rights, a series of international conventions has placed upon states the burden of respecting the basic individual rights of their members; and the view that rights-violating states are subject to some form of intervention or sanction is no more contestable, or less well established, than the view that there is universal jurisdiction over crime against humanity.14 In fact, the Rome Statute, setting out the terms of reference of the International Criminal Court, is quite restrictive. First, the preamble rules out armed intervention into internal conflicts, even if crimes against humanity are being committed. Second, the sixteen offences listed amount to crimes against humanity only if, in addition to being violently abusive, they meet the criteria of being ‘part of a widespread or systematic attack against a civilian population,’ and of being known to be such by the accused; this, of course, actually sets a higher threshold for response than do human rights abuses. So there does not seem to be anything in crime against humanity that makes it either a unique or a particularly effective key. To be sure, from a formal point of view there is an apparent erosion of sovereignty in making subjects of a state liable under another legal code – and we shall return to this; but from a functional point of view, this is hardly different from accepting that subjects are punishable (under certain circumstances) under the laws of other states. As for the piracy precedent, it, too, is illuminating as much by its failure as by its relevance. Making piracy a crime of universal jurisdiction implied no judgment about its place on a scale of wrongness; it was certainly not implied that it was worse than, say, treason, a crime falling within domestic jurisdiction; rather, as noted above, the point was simply that pirates should not go unpunished simply because they operated at sea. Now at first sight it seems quite a conceptual stretch to transfer the ‘enemies of the human race’ category to atrocities taking place within national boundaries, since what was originally essential to it obviously does not apply. The Israeli court which tried Eichmann took this approach, and Arendt has some understandably sharp criticisms: the court was actually trying Eichmann as an enemy of the Jewish people, she claims, not as an enemy of the human race.15

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Might we still say that those who commit crimes against humanity are like pirates in that they exert violence against people whom domestic law leaves vulnerable? That the victims of crime against humanity fall into an empty jurisdictional ‘space’ just as the victims of piracy do, though in a different (metaphorical, not literal) way? The parallel still fails, however. Pirates are enemies of the human race in the sense that they can potentially strike anyone, and nations have an interest in suppressing them because citizens of any of them can become their victims. Nations have the same kind of shared interest in suppressing piracy as they have in maintaining, say, an international postal system (perhaps the best example of an international institution based on pure reciprocity). But the victims of crime against humanity suffer for just the opposite reason: it is not that they could be anyone but that they are, precisely, someone, defined by some characteristic about which they have no choice.16 Whereas piracy strikes indiscriminately and unpredictably, crimes against humanity strike discriminatingly and with an awful predictability, given that they tend to fall upon the objects of long-standing prejudice. ‘You too might be a victim of piracy’ refers to an actual future possibility, while ‘You too would be a victim if you were a Jew’ is a counterfactual, and the motivation to take it seriously is quite different. Suppressing pirates who might attack one’s own citizens is a matter of international prudence; protecting minorities to whom one may have no interestbased ties at all is a matter of cosmopolitan morality. II If the jurisdictional approach does not take us far enough, it seems natural to turn, first, to what may be the most salient sense of ‘humanity.’ An act may be said to be ‘against humanity’ in the simple sense that it violates a basic sense of humane conduct. It is important to try to capture this sense, without which all discussion of crime against humanity threatens to become academic in the worst meaning of that term. No view of crime against humanity that fails to take account of the violent presence of inhumanity can be morally persuasive. One of the standard early accounts of the Nuremberg trials advises us to think of the term ‘humanity,’ in the expression ‘crime against humanity,’ not as a collective noun but as a synonym for ‘humaneness.’17 This is also the (predominant) sense of the term in Jonathan Glover’s book with that title; we have, Glover argues, certain ‘moral resources’ – such as respect and sympa-

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thy – which generally constrain us in our relations with others, but various circumstances and emotions (which his book carefully anatomizes) can blunt them and lead us to commit or be complicit in terrible acts; and conversely, these resources of humanity can sometimes pull us back from committing evil.18 But to take ‘humanity’ in this sense, in a definitional context, seems at once too weak and too undiscriminating. One can understand Arendt’s comment – ‘the understatement of the century’ – on the translation of ‘crime against humanity’ in the German text of the Nuremberg Charter: Verbrechen gegen die Menschlichkeit.19 That expression could as well describe child abuse, or the cruel treatment of animals, or callous reductions of welfare payments to the chronically poor. If anything, a more recent gloss -- crime against humanity ‘diminishes every member of the human race’20 – makes matters even worse, for it seems to carry no sense of limits at all. Not only do cruelties falling very well short of genocide come within its scope, it would also take in the destruction of wilderness by logging or mining, or the broadcasting of dreadful music, either of which have the diminishing effect in question, for some of us at least. There is a risk here that, recognizing small and large defections from humaneness, one will be led to adopt a quantitative criterion; accepting that many things, more or less grave, are ‘against humanity’ in this sense, one might claim that a crime against humanity is distinguished, nevertheless, by its scale. It is set apart from ordinary inhumanities by its grossness. While small inhumanities are part of everyday life, crimes against humanity ‘shock the conscience of mankind’ because their magnitude far transcends what we can put down to mundane and excusable human weakness. Now the scale of evil occupies a notoriously difficult place in moral evaluation. We might very well accept that, given a tragic choice between killing one person and killing three, we ought (other things being equal) to kill one; but it certainly is not at all clear that this distinction simply carries over to the case of killing one person or three when one had the option of killing none at all. Nor is it clear that, even if the arithmetic here did mean something, we could go on to factor hundreds and then millions of deaths into the judgment in an arithmetically continuous way. These are almost ultimate questions about measuring guilt that cannot even be approached adequately here. But there are two considerations that tell against relying on any kind of quantitative criterion. The first is that quantification is simply implausible. In a wide-ranging

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review essay, James Sterba makes this point.21 How should we set out to compare the evil done by the Holocaust, by African slavery, and by the (near-)extermination of aboriginals in North America? If we employ a body-count, then African slavery killed more people than the other two did. If we are looking at the proportion of the target group killed, then the aboriginal case is the worst. (If we are looking at rates of killing per day, one might interject, the Rwanda genocide outclasses all three.)22 If we are looking at the degree to which victims were compelled to collaborate in their own destruction, then the Holocaust may have been the worst in its earliest stages, though not in its later ones. And when we are counting up evils, is it worse to deprive a people of their identity or culture (as in the aboriginal case) or to persecute them after they have acquired it (as in the Holocaust)? This is of course just barely to scratch the surface of possible comparisons, but it may be enough to show that the matter is resistant to considerations of quantity. We need to think about kinds of evil, not about amounts of it. But suppose we could, somehow, quantify the evil in acts? Another, famous, objection would still remain. There is no way to relate the quanta of evil in an act, on a one to one basis, with quanta of a purposive kind. This is, of course, the Arendtian ‘banality of evil’ thesis. We cannot suppose that the most inhumane results (however measured) reflect the most subjectively measured inhumanity. There is no necessary reason why a middle-level administrator of genocide must be more ‘inhuman’ than, say, a serial rapist, or even a sadistic teacher. The consequences that the administrator foresaw, or should have foreseen, are certainly relevant to the judgment that we form of him. But so are several other considerations: the costs of noncompliance, the jointness of responsibility, the certainty of the foreknowledge of consequences, and the personal involvement of the actor in the outcome – ‘Did he enjoy it?’ is a crude but significant test, and the petty sadist may well be more likely to fail it than the banal administrator of large-scale cruelties, especially when removed from direct experience of the effects of his decisions.23 Of course, the bearing of Arendt’s construct upon the Nazi case has been seriously questioned: it may greatly understate the extent to which banal administrators made enthusiastic choices.24 But the thesis still provides a general reason not to make crimes against humanity into crimes of inhumanity, for the correlations between subjective intention and objective result may be very weak, and altogether too much may depend on circumstances to allow us to trace things, decisively, to the agents’ moral feelings, or lack of them.

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III A third possibility is that humanity should be thought of as the victim of crimes committed against it. It is not that humaneness, as a moral quality, is lost or denied: it is that damage is done to humanity imagined as an entity of some kind. In the preamble to the Rome Statute, the second clause refers to acts which ‘shock the conscience of humanity’; the third, however, introduces consequential considerations – crimes against humanity ‘threaten the peace, security and well-being of the world.’ This approach, too, has had its defenders. Myres McDougal argued that humanity as a whole has an interest in preventing mass persecutions and genocides because of their tendency to lead to international upheaval; the removal of rights from German Jews was only the prelude to an onslaught on the whole of Europe.25 Similarly, Brendan F. Brown, a juridical consultant at the post-war Tokyo trials, argued that acts of genocide differ from simple murder in the threat that they offer to world peace. ‘Hatred and enmity are multiplied and become worldwide.’ This is particularly so when members of the persecuted group have relatives elsewhere – especially in powerful countries. ‘Because of the great racial and cultural diversity of our [i.e., the US] population ... it is impossible for any group to suffer injustice in any part of the world without immediate repercussions here.’26 While arguments of this kind may have the (intended) merit of winning hard-headed realists – or short-sighted isolationists -- over to good causes, they are much too selective and conditional in their (actual) effect. For not every persecution, obviously, is a prelude to war, and not every war is preceded by persecutions. Moreover, the fate of vulnerable minorities attracts the interest of great powers only sporadically. In an interesting piece of comparative history, Samuel Clark has examined the factors that contributed to the protection of minorities in seventeenthcentury Europe.27 His conclusion, stated in the form of fourteen propositions that need not be listed here, is, essentially, that minorities can expect to attract international support when it is in the interest of important powers to give it; whether or not their persecution disturbs the world is a very conditional matter. Of course, it is a matter of sheer luck whether or not minorities get help; but we can hardly regard it as a matter of sheer luck whether or not they have a grievance, as the McDougal/Brown approach effectively suggests in building consequences into the definition. There is a more sophisticated version of the humanity-as-victim thesis,

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one suggested by the French prosecuting attorney at Nuremberg. Crime against humanity, he said, is a ‘crime against the human status.’28 Humanity, in this sense, is not the human race as a whole – nor is it a sentiment – but a property that everyone has by virtue of belonging to it, and crime against humanity is a practical denial of this property. Once again, of course, one may find the lack of discrimination troubling, for it is not at once clear how this distinguishes (say) genocide from (say) murder, or even (in light of Kant’s second formulation of the categorical imperative) from wrongdoing generally; and again, it risks assimilation to the idea of the violation of human rights. But perhaps there is a way to delineate some particularly important aspect of the human status that meets the definitional need here. Arendt takes up the French prosecutor’s definition, and develops it in an interesting and distinctive direction. A crime against humanity, she writes, is one designed to ‘eliminate forever certain “races” from the face of the earth,’ or, in the case at hand in Eichmann in Jerusalem, it is a policy of ‘refus[ing] to share the earth with the Jewish people.’ This is ‘an attack upon human diversity as such, that is, upon a characteristic of the “human status” without which the very words “mankind” or “humanity” would be devoid of meaning.’29 Why would ‘humanity’ be devoid of meaning in the absence of diversity, though? The study of the Eichmann trial is terse on this point, but we can fill in the argument by drawing on the larger themes of The Human Condition. In that work, Arendt connects inhabitancy of the earth’s surface with the essential character of human life. Through the sharing of space, human groups create public worlds for themselves, worlds which serve as the context for performing, and recording, activities distinctive to our species; so the human race consists of a plurality of public worlds, spatially organized.30 Now the Jewish people were not of course spatially organized. But Eichmann in Jerusalem tries to recapture this larger idea by claiming that even a dispersed people can have a public space. For the ‘space’ that matters, while it may sometimes coincide with geographic space, is essentially ‘the space between individuals in a group whose members are bound to ... each other by all kinds of relationships, based on a common language, religion, a common history, customs and laws.’ The denial of space to any group is a crime against humanity because ‘mankind in its entirety’ is ‘grievously hurt and endangered.’ If crimes against humanity go unpunished then ‘no people on earth’ can feel sure of their continued existence, which is tied so intimately to the security of space that they share.31 It may not at once be clear how an attack on a group sharing meta-

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phorical space is also necessarily an attack on groups sharing real space. Further, the consequentialist turn taken here seems less than persuasive, given that a sort of international moral cartel might form, condoning the concentration of violence against others while agreeing that its own members be exempt.32 But the main part of the argument here does not look consequentialist at all; rather, in speaking of a human status, it would seem to have the point of drawing a protective line around certain interests and declaring them to be essential. Since these interests, unlike those protected by human rights, are not individuated but form part of a common scheme of relations, Arendt’s thesis does offer a view of crime against humanity that makes it distinct from other offences. As formulated, however, the thesis is highly problematic. For one thing, while promising a defence of diversity, it actually offers a defence of plurality; and while those two ideas may often overlap, they do not map onto each other at all exactly: public spaces may be plural without being diverse, and even if they are diverse it is not their diversity that makes them valuable, in Arendt’s own argument, but the fact that they are selfconstructed and serve important universal purposes.33 For another thing, even if a theory of plurality could somehow serve to defend diversity, diversity in turn fails to map onto the features of the world that demand protection; for if it did then, absurdly, it would be a crime against humanity to persecute unassimilated Jews who maintained their differences from others, but not to persecute and kill Jews who had taken on the social and public culture of the states in which they live. To make one’s human status depend on one’s difference from others is again to miss the unconditional wrongness of the injury suffered. IV This critical discussion is meant to have created an agenda of questions. Assuming that we can take crimes against humanity to be evil, what is distinctive about the kind of evil that they embody? In particular, how is the kind of evil that they embody different from other kinds of evil – such as abuses of human rights – that may also justify incursions into state sovereignty? What part is played by the ‘common plan’ criterion (the requirement that abuse be systematic) and why does this magnify or else render unique the wrongness involved? What part, if any, is played by considerations about the scale of atrocity? Given that the paradigm case is racial genocide, how do we know when it is right to extend the category to other cases – involving target groups that are not racially

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defined, and/or acts which fall short of genocide? I want to argue, in the two final sections of this chapter, that we can give plausible answers to these questions if we think about crime against humanity as an abuse of state power involving a systematic inversion of the jurisdictional resources of the state. It makes sense to begin with the lawyers’ view, formalistic though it may seem, that the idea of crime against humanity involves a derogation from national sovereignty. States have, after all, claimed to be the unique definers and punishers of crime, and their power is based upon the extinction of local, communal, traditional, vigilante, or vendetta modes of bringing justice and their replacement by the idea of ‘public wrongs.’ Consequently, it has become part of the very idea of crime that it is a three-party relation; while the victim suffers it, the relation between victim and offender is mediated by the ‘state’ or ‘Crown’ or ‘People,’ that is, a sovereign entity regarded as the author of law and against whom the crime is deemed to be an offence.34 A crime is something more than damage to a victim. If, for the purpose of filling out the three-party relation, we imagine humanity as, conceptually, a sovereign, it must have two abstract features. First, it must be fictive; for as we have seen, we cannot make crime against humanity an offence against any positive authority at the definitional level; for the purpose of defining the substance of the crime, ‘humanity’ can be only a logical requirement, not an authority or agency, for otherwise the idea becomes quite empty. Second, it must be intermittent, for if we imagined a permanent human sovereign then states would have no sovereignty of their own; and then all crime would become crime against humanity, so that the crimes in question would lose the special evilness that characterizes them, and the very point of invoking the idea would vanish. Behind the very idea of crime against humanity, therefore, there is an implied mental scheme of an abstract kind – a scheme implied by the belief that the sovereignty of states is morally conditional, and is suspended and superseded by events of a certain kind. This may seem to take us no further, for there are many controversial views of state sovereignty which lead to different conclusions about the conditions and limits that apply to it. There are, for example, many different views about human rights and their relation to the legitimate exercise of state power, with different implications for its limits and for issues of obedience by subjects of states and of intervention by other states or bodies.35 But the crime against humanity model can move

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forward here by appealing, in the first instance, not to contestable normative theories of human rights, but to considerations about the nature of state power as an empirical matter. For there is a particular complex of events, reflecting three central features of state power, that undermines legitimacy in an especially radical way. The first two of these features are large-scale administrative capacity, and local authority. Both are features of the clearest cases of crime against humanity, which, at a minimum, require powerful mechanisms of collective action and the habits of obedience that sustain them, and an institution regarded as entitled to make binding declarations of rightness and wrongness. Writing of the Rwandan genocide, Gerard Prunier has remarked that ‘only states have had the physical means of industrial slaughter as well as the massive legitimizing capacity needed to convince their citizens that some of their number are subhuman and deserve to die.’36 With a slightly different emphasis, the same two state capacities are identified by Avishai Margalit and Gabriel Motzkin in an article on the Holocaust; its uniqueness, they write, stemmed from the fact that it sought simultaneously to destroy a group physically, through large-scale organized extermination, and to use its authority to humiliate and degrade it in the course of doing so.37 Only states have this double capacity of physical removal and moral exclusion. To these two features we must add another, as their necessary precondition. State power is territorial, and so may be used to immobilize a group and also to deny it external help – to attack it while denying it hope of the desperate last recourse of either flight or protection, so that its resources can be brought to bear against it in an unimpeded way. Administrative capacity, local authority, and territoriality come into being with the creation of states: when, therefore, they play an essential role in an attack on a group of a state’s subjects, that group is absolutely worse off than it could be in the worst-case scenario of statelessness. This applies, it should be noted, only in the case of groups of a substantial size: what was done to the whole population of East Timor could not have been done if there were no Indonesian state, but individuals or smaller groups could be (and are) physically attacked, humiliated, and immobilized by informal structures of power; so the same elementary worst-case contractualist logic would not serve to protect them. (This is not of course to say that other considerations would not protect them.) In The Contract of Mutual Indifference, one of very few works that try to make sense of atrocity in terms of the concerns of political theory, Norman Geras argues that the world is organized in the way that it would

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be if the human race had contracted to be indifferent to the suffering of others: as though, at the cost of forgoing assistance in our own time of dire need, we absolved ourselves of any duty to prevent the impoverishment, brutalization, or extermination of others.38 He acknowledges, however, that universal indifference is moderated in certain ways, and in particular by the sense of solidarity within groups, whose members have caring feelings towards each other; and in the case of national groups, the duties of care are formally delegated to states. But, as Geras points out, neither community nor state responsibility amounts to an adequate protection. ‘People went to their deaths at Auschwitz or Treblinka, notwithstanding that there were some others who cared about them. Whole communities were slaughtered in the forests of Eastern Europe, as more recently they have been brutally violated and dispersed in former Yugoslavia, despite the fact that the individuals comprising these communities were not entirely alone.’ As for state responsibility, ‘states and governments are themselves often the very source of the calamities we are talking about and therefore cannot be relied upon as the guarantors (of aid) of last resort.’39 The account developed here acknowledges, I believe, the insights of Geras’s valuable work. For in the first place, it embraces his account of community, and also explains why the assault on whole communities is particularly abhorrent; it is in communities that the primary requirements of human vulnerability are addressed, and so to assault communities is to heighten vulnerability to the maximum extent, by removing the principal line of defence against it. In the second place, it normally takes the resources of a state – or state-like structure – to destroy whole communities, which are less utterly helpless than individuals are;40 and, moreover, if we regard states as being legitimated exactly by the task of reducing vulnerability, their assault on the communities under their protection carries with it a double condemnation.41 With this in mind, some of the questions noted at the beginning of this section can be approached. The idea of crime against humanity does have a distinct logic, based on an elaboration of the features of the modern state: it depends upon the model of a three-party relation which is characteristic of the rule of law, and draws upon the notions of territoriality, authority, and the monopoly of force. Out of these elements it constructs the outline of a particular kind of evil, one that consists in a systematic inversion: powers that justify the state are, perversely, instrumentalized by it, territoriality is transformed from a refuge to a trap, and the modalities of punishment are brought to bear upon

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the guiltless. When this complex is brought together, it is entirely natural to the moral imagination to suppose that the power to judge and to criminalize must migrate elsewhere. The kind of evil in question is also distinguished, by this model, from violations of human rights. Human rights violations are individuated. What are termed ‘gross’ human rights violations are additive; and they do pose the quantitative question of how many are acceptable before a response is called for. But crime against humanity is not an additive concept. It relates on the one hand to the necessary institutional prerequisites of an organized project, and on the other to damage suffered by individuals only by virtue of belonging to a group. Of course, from the victim’s perspective neither of these considerations can be crucial: damage is damage, whatever its organizational prerequisites and whether or not it is group-based. But the whole argument developed above, especially in rejecting the idea of crime against humanity as an offence against an individual status, requires a non-victim-based perspective, in order to make sense of the three-party nature of crime. Perhaps most clearly, the model makes sense of the ‘common plan’ criterion (again of course a criterion that makes no sense from the individuated victim’s perspective). In fact, the ‘common plan’ requirement is virtually identical to the requirement of state initiative. (If only state complicity is involved, the model here can easily accommodate the distinction, just as the drafters of the Rome Statute did.)42 If that requirement bore upon the element of premeditation – rather as firstdegree is distinguished from second-degree murder – it would surely lead us to single out the political leaders who plotted atrocity, rather than the sad (or banal) nonentities who carried it out: but the Rome Statute holds responsible all those involved. In doing so, it implies a background model which, like the model developed here, imposes on everyone a duty to recognize and to resist the moral risks entailed in membership in a state; it is because the state is the kind of institution that it is, with the features that it has, that crime against humanity is possible. But in particular, the model outlined here may help to deal with the troubling question of the scale of atrocity. Here intuitions tend, awkwardly, in different directions. On the one hand, we can hardly close our minds to questions of scale altogether. Legally, a crime against humanity (unlike a war crime, which may be a single act) is a concerted persecuting effort, or a component of one; but even outside a legal context the greatness of the evil owes something to its extent. So from this point of

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view numbers seem to count. It is very unclear whether numbers are absolute (a body-count) or relative (a proportion of the target population) or time-sensitive (numbers killed per day), but they would certainly seem to come in somehow. On the other hand, of course, moral sense rebels at the thought that numbers count in this way: that the Holocaust would have been less of a crime if only (say) three million had been killed, or that we might tell whether the Holocaust or Stalin’s reign of terror was worse by simply counting bodies, or whether enough Kosovars were killed to make NATO’s action against Serbia justifiable -- inviting the cruel and absurd question, how many would have been enough?43 The view developed above suggests why numbers matter and also why they do not, as such, count. A crime against humanity is one that requires the application of a state’s resources – the capacity to apply violence on a large scale, and the control of territory; and it also requires a target group substantial enough to have developed expectations of common survival. Numbers matter, then, as an indicator of something else, i.e. of whether state power is essential, in these two ways, to the events in question. But above this (variable) threshold, questions of number (proportion, speed, etc.) have no weight at all, as far as the idea is concerned, given its non-additive nature. V If this discussion captures some necessary conditions of a crime against humanity, it nevertheless leaves unresolved some major issues that have arisen in the course of the idea’s history: issues about the kind of acts that constitute the crime, and about the identity of the target group, in particular. To attempt to settle any of these difficult and often politicized controversies in a summary way would of course be futile. But I can at least indicate the ways in which the idea offered here is in some respects less restrictive, and in others more restrictive, than some other views of what does and does not count as a crime against humanity. It is less restrictive, first, in its inclusiveness with regard to victims. The Armenian Genocide and the Jewish Holocaust were directed against ethnically defined victims; and cases (such as Rwanda) where the bases of ethnicity may involve fiction do not seem materially different – the core cases involve ascriptive groups, whatever exactly is the basis of the ascription. But does anything morally important distinguish the persecution of ascriptive groups from the persecution of non-ascriptive ones? One thought was suggested by the Iranian representative to the United

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Nations committee on the Genocide Convention in 1948: the destruction of ascriptively defined groups, he said, ‘appeared particularly heinous in the light of the conscience of humanity, since it was directed against human beings whom chance alone had grouped together.’44 For if a group defined by the chance of birth is persecuted, it is as though its members had not been born into the human race at all – their human status is denied from the start. It is not some subsequent choice that attracts the punishment of the state, it is a sort of atrocious practical category mistake that travesties the logic of punishment, imposing penalties for being rather than doing. Although this is initially a compelling idea, it is hard to see, on reflection, what distinguishes this case from the case of innocent groups in general. Everything that is wrong about it is also wrong about Pol Pot’s extermination of ‘intellectuals,’ meaning schoolteachers or even people who had learned to read, even though those affected could be said to have made choices – choices that could not have been foreseen to be politically contentious. So to ‘chance’ we need to add ‘innocent choice.’ But once we have made this extension, what excludes politically controversial groups? Political groups are included among the groups protected in the preamble to the Rome Statute, although there has sometimes been resistance to their protection on the same terms as other groups.45 On the model developed here, there is no defensible basis for this resistance. On other models, such as that suggested by the chance/choice distinction, there may be a difference between, on the one hand, chances and choices that (as it were) chance to be dangerous, and, on the other, political choices known at the time, perhaps, to be risky. But since the definitive element in this discussion is the travestying of state powers, the suggested distinctions are out of place. It is true that, in the simple contractualist argument outlined above, political memberships may seem to have a slightly awkward place; in a condition of statelessness, political memberships obviously cannot exist, and so we cannot compare the preand post-state circumstances of political groups, applying the ‘worse off’ test directly in a condition of hypothetical statelessness. But it does not take much, surely, to expand the argument here. The worse-off test says that whatever kind of group you will belong to, you will be worse off under political persecution than in statelessness, given that you will be subjected to a violence-magnifying complex of constraints that cannot exist in the absence of states. A second issue concerns the nature of the cruelties imposed. African states mounted a long campaign to get Apartheid included in the list of

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crimes against humanity, and it was eventually included in the list of sixteen offences in the Rome Statute. Some of the opposition to including Apartheid arose from the technical consideration that one should not name the offender in the definition of the crime.46 That objection seems fair enough, from a procedural point of view. Other opposition, however, arose from the concern that Apartheid policies fell short of genocide, and that including them amounted to a debasement of the moral currency.47 But while that may have a semantic point in connection with applying the term ‘genocide,’ in connection with crime against humanity the distinction could be sustained only by reverting to considerations, rejected above, of body-counting. Apartheid was not intended to exterminate, but to exploit; nevertheless, the policy relied, obviously, on extensive coercive capacity, and those who imposed it accepted the predictable level of brutality that it required. It relied, too, on the ideological resources of the modern state. And it relied – or tried to rely – on conventions of respect for the territorial sovereignty of states, as a protective umbrella for violent practices of discrimination. Applying the contractualist test, it clearly fails. And the merit of the contractualist test is that it trumps other proffered justifying arguments, for example, the claim that white rule produced a higher level of some good (such as income or stability) for everyone, including the exploited, than blackruled states typically produced. We do not need to explore arguments of that kind, given the model adopted here; for that model requires participants to compare the relative benefits of statehood and of statelessness, and not to compare the relative (very) hypothetical benefits of different kinds of state, whatever the results of that comparison turn out to be. The idea developed here is more restrictive, however, in excluding acts of (external) war, for it has tied crime against humanity essentially to a state’s treatment of its own subjects. No doubt the difference between external and internal war is often hard to see, as when (for example) states are coming into being or ceasing to exist. But to the extent that we can, it seems important to insist on the distinction between war crimes and crime against humanity – without, of course, intending to diminish the former – as it has been such an achievement of international law to establish the integrity of the latter. The ‘war nexus’ may have been necessary at Nuremberg, as a way of connecting atrocities to a timehonoured category of offences. But it prevented the Tribunal from prosecuting offences against German nationals or even nationals of countries allied with Germany. While creatively exploiting a timehonoured category, then, it also reinforced some time-honoured prin-

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ciples of national sovereignty; and it was only with the abandonment of the war nexus that the distinctive moral force of crime against humanity could be recognized. Ironically, it is now sometimes proposed that crime against humanity, once no more than a species of war crime, is in fact the more comprehensive of the two ideas, and should embrace war crimes – since it covers atrocities that may occur in either war or peace.48 This seems an unfortunate suggestion. First, war crimes do not impugn the justice of a war: they could be committed by agents of a state fighting a defensive war of the kind permitted by the United Nations Charter; but there is no corresponding innocent activity to which crime against humanity could be an incidental accompaniment. Second, war crimes and crimes against humanity bear a very different relation to the normative theory of the state. The prohibition of war crimes is an attempt to correct the balance sheet of costs and benefits in the state’s favour. States provide domestic order, quelling civil war, but only at the cost (Rousseau argued, in his work on St Pierre) of creating foreign wars ‘a thousand times more terrible.’49 The post–Second World War international regime has sought both to limit the resort to war and to restrain its conduct, thus modifying Rousseau’s deeply pessimistic equation: the list of war crimes in the Rome Statute embodies and extends a centuries-long effort to contain and limit the brutality of war and to inhibit military behaviour. Crime against humanity, however, is by definition not to be placed on any such balance sheet. It cancels any possible justification for a state’s existence, by deploying its characteristic powers in ways that defeat any potentially countervailing benefit. As a moral inversion or travesty of the state, it amounts to a distinct kind of evil to which a distinct kind of repugnance attaches, the repugnance that one feels at seeing an institution essential to the ordinary conduct of human life – however error-prone and in need of international regulation it may be – being systematically betrayed. VI This account, as acknowledged at the outset, matches the legal account of crime against humanity only in part. That is a defect, for the idea has been developed mainly in a legal context, and very probably will continue to be. But all the same, its insertion into international law is one of the most striking recent examples of the influence upon it of a moral belief. Moreover, as was also noted above, it is impossible to contain the

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idea of crime against humanity cleanly within the context of international law. For it is used to support political commitments, as well as to express moral outrage. Terrorist attacks, the use or threatened use of nuclear or biological weapons, ‘collateral damage’ to civilians, the waging of unjust war, the destruction of the social safety net, policies of assimilation – all these have been called ‘crimes against humanity’ in the context of recent political conflicts. If the term may be used to describe anything that outrages us, or anything that it advances us politically to depict as outrageous, then it has no interest for political philosophy. It is interesting to us to the extent that it discerns important differences; and this chapter has suggested that some important differences emerge if we think about exactly why ‘crime’ is the right figure to employ and in exactly what sense ‘humanity’ might be at stake. The latter part of that question requires us to look carefully, in the following chapter, at a view of morality that casts doubt on the unmediated appeal to such universals.

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10 On Special Ties (1): Jesus or Polemarchus?

If claims arising from simple humanity may have an undermining effect on some kinds of partial institutions (especially political ones), other kinds of partial ties may in turn provide the basis for an undermining critique of moral universalism. For ‘all of us accord massive priority to our own plans and projects, careers, families, loved ones,’1 and we would naturally be suspicious of any moral theory that could not accommodate this basic fact. Some believe, of course, that the most familiar mainstream moral theories cannot accommodate this fact, and that in defiance of those theories we must give personal ties a basic or foundational standing, if their enormous importance in our lives is not to be wholly misrepresented. I shall call those who hold this view ‘partialists.’ It is a far-reaching view. According to John Cottingham, the rival impartialist point of view leads to ‘repugnant and absurd consequences which ultimately threaten the very basis of our humanity.’2 If true, the partialist view would demonstrate that Polemarchus, Socrates’ generally-takento-be hapless interlocutor in book I of Plato’s Republic, was ‘nearer the mark than Jesus,’3 for in urging that morality is a matter of helping one’s friends he avoided the absurd position that everyone is entitled to our benevolence. (Jesus, and Socrates, were more on the mark, though, Cottingham acknowledges, in having reservations about hurting enemies.) Partialists are often called ‘particularists,’ but there is another and quite distinct position that has a claim on this name, for example the position defended by Jonathan Dancy in Moral Reasons.4 According to Dancy, any moral decision expresses a ‘holistic’ judgment about a particular situation, not a weighing or balancing of supposedly rule- or principle-governed components imagined to have moral weight within

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it. So if, for example, the right thing to do is to remove the potentially deadly sea-urchin spines from a child’s foot, the fact that doing so causes pain to the child does not in some way diminish or compromise the rightness of the act, as it would if (for example) we supposed that ‘causing pain is always wrong.’5 In stressing the particularity of local contexts that position might seem to coincide with, and lend weight to, what is called here the partialist view, which likewise demands that we should pay ‘proper attention to the way that particular circumstance and social practice enter into the shaping of obligations,’ and replace impersonal moral thinking with ‘more concrete and immediate investigation.’6 But a moment’s reflection shows that it does not lend weight to it. Dancy’s position rules out principles such as the partialist’s ‘support your group’ just as firmly as it rules out the Kantian’s ‘treat humanity as an end.’ The supporters of irreducible special duties, however, call upon each of us to support some group-equivalent(s), and they would want that support to have at least some moral weight in all the moral decisions that we face, in a fashion that Dancy’s argument would seem generally to forbid. So let us keep the label ‘partialism,’ which has the merit of contrasting clearly and directly with impartialism. I Many of the partialists’ arguments, as formulated by Andrew Oldenquist7 and John Cottingham, suffer from taking as their target an insufficiently differentiated view. The impartialism that they reject is the notorious position taken by William Godwin in his discussion of what we should do when the hotel catches fire.8 It was of course Godwin’s claim that, if one could rescue only one person, one should rescue a great public benefactor rather than a lesser person (such as a servant) who just happened, irrelevantly from a moral point of view, to be one’s own father or mother. The partialist critics have little difficulty in exposing the patent monstrosity of this position. Oldenquist, for example, imagines the parallel case of a father who chooses to rescue his daughter’s friend, rather than his daughter, from drowning, on the grounds that the friend, being more talented, has a better future: the father is ‘a great fool, an object of pity and contempt.’9 Cottingham believes that the impartialist would not be able to sit up with her sick child if some more urgent general duty could be performed.10 To be sure, certain people such as judges and public officials might be called on to sacrifice their loved ones in carrying out their official duties – but that is precisely because they are under

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a (formally conferred) special duty to do so, and it is a fallacy to claim to derive from those cases a general moral view.11 In response to such views, Brian Barry makes an important distinction between what he terms ‘firstorder’ impartialism, which would entail monstrously heartless decisions if directly applied, and ‘second order’ impartialism, which is a matter of demanding that principles of moral decision should not be privilegeconferring in unjustifiable ways.12 It is entirely consistent with secondorder impartialism to accept that particular relationships create moral priorities that would win universal assent: any father would agree that any other father should rescue his own child first, or sit up with his sick child even at the expense of contributing to famine relief in the Sudan on that particular evening. Certainly it remains true that ‘my own interests cannot, simply [NB] because they are my interests, count more than the interests of anyone else,’13 but the mistake is to suppose that because a simple appeal to particularity is ruled out then any such appeal is off limits to the impartialist. This response has in turn been criticized on the grounds that it fails to capture the particularity and intimacy of personal relationships.14 It tells us that it is good that such things as friendship exist by giving us an ‘indirect’ justification via impartial considerations: but the friendship that it justifies is too thin, in the sense that it leaves out what I owe to this friend. It does not explain, for example, why I should seek a thoughtful birthday present for that particular person, or cook a meal to his/her special taste: yet such things are constitutive of actually experienced friendships. But whether or not this objection has force seems to depend on what it is that requires justification. Surely I do not have to justify the positive doing of good things for others, whether thinly or thickly described; what requires justification is my non-seeking of goods, thin or thick, for non-friends – i.e., the negative or exclusive element. Whatever it is that defines the positive acts need not be the same as what justifies the negation or exclusion.15 So while it is quite true that impartialism cannot give us a good account of how we should treat friends, children, or spouses, it is adequate to what appears to be the actual justificatory task. Moreover, to put a great deal of weight on the specificity of this friend on her birthday or on that friend’s taste for Thai food is to risk eliminating ‘friendship’ (et cetera) as a usable category, since every thickly described friend (et cetera) will be different from every other, and partialism itself will be undermined to the extent that it recommends kinds of valuable relationship to our attention. We cannot let the partialists have it both ways.

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Moreover, if we examine the partialist critique of the supposedly pathological impartialist, we can detect a scarcely veiled debt to the impartialist point of view. Perhaps this is clearest in two papers by Cottingham, which make such a vigorous case for the importance of local and personal projects in our moral lives. ‘If anyone seriously attempted to live in the way suggested [by the impartialist as viewed by Cottingham], then it is doubtful whether he could survive as a person, as a whole individual, at all.’16 For we need a sense of personal priorities, rooted in our own situation and relationships, to have any sense of integrity at all. Without it, the very object of ethics – ‘human fulfilment’ – would be defeated.17 Indeed, the result would be personal disintegration.18 Even in the extreme case of a Buddhist desire for eventual selfannihilation, it has to be allowed to us to set the personal priorities needed by the arduous path towards that goal.19 And even if it is possible, in another extreme case, to live a life ‘without agent-related commitments,’ a life of ‘detachment’ akin to that of the wandering monk, such a life is parasitic on the engaged and embedded lives of others, and its aims cannot be universalized.20 All of these arguments quite evidently appeal, however, to the forbidden impartialist criteria: to what everyone needs, as a condition of leading a recognizably human life, and to what meets the universalization test itself. In Oldenquist’s paper, rather parallel reactions are evoked by the view that the weighing and balancing of obligations plays an important part in moral life. What is taken to be the utilitarian view, that more good and harm are at stake in the case of wider duties, is rejected as false21 – we must choose among smaller and larger contexts of duty. But what kind of thinking is in play here? What can it be, except an attempt to stand aside from one’s conflicting loyalties in an attempt to assess their merits? And is that still a ‘loyalty’ – to whom, then, or what? A loyalty of any kind whatsoever would seem to need to be directed to an object.22 In somewhat different ways, Oldenquist and Cottingham attempt to create a space in their arguments for universal or human obligations. They do so by claiming that the category of loyalty is indefinitely extendable. Oldenquist, for example, invites us to think of ‘species loyalty’ as a further layer beyond family or national loyalty,23 and he suggests that this is a better account of human obligations than a Kantian can provide. A very wide (e.g. human) loyalty may look different from a narrower (e.g. national) loyalty only because it may just happen not to exclude anyone: but faced with Martian enemies, Oldenquist surmises, the Kantians would put their shared humanity first, exclude the Martians from moral

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concern, and thus bring the ‘tribal’ nature of all morality to light.24 Cottingham too imagines a ‘planetist’ ethic – ‘S favours X because X is a creature from S’s own planet’25 – which might eventually come into conflict with still wider partialisms such as ‘galacticism.’ He is, however, less willing than Oldenquist is to put his money on planetist tribalism, and in fact his position is more open than Oldenquist’s is to elements of the impartialist case. For Oldenquist, loyalty is entirely a matter of sheer identity: even if the space invaders were like us in important ways our earth-loyalty would justify war against them,26 just as loyalty to my child is nothing to do with whether or not he is anything like someone else’s. For Cottingham, however, the similarity of properties provides a prima facie reason for treating them alike, and it is up to the partialist to justify favouritism on some overriding ground.27 So on his marginally more tolerant view, we would not be justified in pulverizing the Martians until we had got to know them a little better, and had found them to be sufficiently different. The ‘larger loyalty’ thesis has been more recently and prominently taken up and defended by Richard Rorty, who asks whether we should ‘treat “justice” as the name for loyalty to a certain very large group,’ and ‘replace the notion of “justice” with that of loyalty to that group,’28 and who arrives at a positive answer to both of his own questions. Much of the argument, in all of these discussions, turns on the issue of motivation, and we will turn to that in a later section. For the moment, though, it seems important to draw attention to the separate and more basic issue of what we might term the structure of the ‘larger loyalty’ thesis, which is misleadingly quantitative and spatial. For certain significant though limited purposes, it makes sense to think of levels of identity as competing with one another, being subsumed within one another, and so on. If we are thinking, for example, of the distribution of some fixed sum of money, then it is true that an increase in the sum allotted to foreign aid will mean a decrease in some other allocation, for example, the sum allotted to support the national theatre, as Cottingham rightly points out.29 But levels of moral identification do not operate in the same way. Larger identifications do not simply compete with smaller ones for resources, they have consequences for their internal character. King Creon’s state-building project, for example, challenged Antigone’s understanding of the family; and in turn, ideas of human rights challenge what states are permitted to do to their citizens. That last example may help to bring out the basic fallacy of the spatial metaphor. Recognizing a human right is not a matter of

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advancing the cause of some very large global entity (like Auguste Comte’s Humanité ): it is a matter of wanting to protect individuals or relatively small organizations such as families or churches against relatively large organizations such as (typically) states. It is quite simply false that, for the moral universalist, ‘the wider the loyalty, the greater the moral claim it has on us,’30 so that the doctrine must inevitably lead to national then global (then galactic ... ) centralization, to the destruction of family, neighbourhood, and community; it is primarily a matter of introducing constraints upon what families, neighbourhoods, and (especially political) communities may do. Far from substituting the large for the small, it typically protects the small from the large. To be sure, rethinking the scale of moral identifications may also have redistributive consequences. In particular, given the current grip of states on the allocation of resources, to their own immediate benefit, it will lead to concerns about the global distribution of wealth. But what it is right to do about that will be the result of a critical process in which we think about all our spatially defined obligations, not a mechanical process in which the spatially large eats up the spatially small. It is this critical element that makes for a basic disanalogy between the idea of impartialist morality and the idea of global loyalty. The former leads to a sustained inspection of levels of obligation in view of a recognition of human dignity and its varied needs: global loyalty cannot do that, any more than patriotic loyalty can give us a moral perspective that fairly settles the question of family relations within the patria’s boundaries.31 Interestingly, though, Oldenquist favours a process of weighing and balancing of attachments, rejecting impartialism because he (wrongly) believes that it cannot accommodate that process. Replacing impartialism with global loyalty, he then insists that global loyalty be cut down to size as just one among various potentially competing prima facie loyalties that we have.32 But once again, we are left without a moral category to contain this process of weighing and balancing. What guides it? Evidently it cannot be loyalty itself, for every species of loyalty (including global loyalty) has been transformed into just one player in the game, and so we need something else to tell us how the game is to be played and how success is to be determined. For without that, the very idea of weighing and balancing remains mysterious, because it is measureless. II The impartialist would naturally suppose that partial duties could be brought under impartial rules at a second-order level:33 that while I have

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duties of a certain kind only to my group, you in turn have duties of a parallel kind to your group. Let us call this ‘iterative loyalty.’ If iterative loyalty thus defined makes sense, then the partialist is wrong to think that the facts of partiality undermine the impartialist position. But iterative loyalty has still to survive two basic objections. The first derives from an alleged inconsistency. Oldenquist detects this inconsistency in what he terms ‘sports patriotism.’34 ‘A patriot who says he should help P defeat Q because P is his country seems required to admit that Q’s patriots have a corresponding duty to help defeat P.’ Rather like two egoists in a lifeboat, both claiming that each should throw the other overboard, patriots of this kind are trapped in an absurd inconsistency. They may look for an escape route in the model of competing sports teams. Although the sports patriot wants his team to win, he believes that each team ought to try to win, a belief captured in the formula ‘let the best team win.’ But this, Oldenquist argues, misrepresents the team supporters’ true motives, and anyway is not really loyalty, for the actual appeal is to shared values such as ‘toughness’ and ‘competence.’ Analogously, the patriot whose beliefs are modelled on the team-supporters’ ‘claims that when it comes to war Q ought to try to do in his country and his ought to try to do in Q ,’ but he can give no intelligible account of this singular and self-defeating belief. Now, in the sporting case, supporters’ motives are no doubt various and also mixed, but there is no contradiction between wanting to win and wanting the other team to ‘try.’ For if it did not try, there would be no game, and one’s own team’s victory would be empty. Here it is different from, say, a bank robbery. If one sets out to rob a bank, then one’s victory is all the more complete if one entirely escapes the attention of the security guards and slips undetected through the alarm systems; but wanting an analogous victory in the case of soccer or basketball would be ludicrous, for meeting and demonstrably overcoming obstacles is exactly the point of the game. So while the formula ‘let the best team win’ does not, it is true, fully depict the supporters’ motives – for they also want their team to be the best team – it does not misrepresent them either. As for the claim that loyalty is undermined by accepting shared values such as toughness or competence, it fails to allow enough room for the complex but ineradicable psychology of hope. War, whatever its analogies with sport, is another matter. Here, indeed, one has reason to hope that the supporters of Q will not even try, but that is exactly because the outcome and not the competition is what matters. A patriot who, analogously with the team-supporter, wanted Q’s soldiers to do their very best would indeed have some explaining to do. He

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should not be supporting his (P ’s) cause unless he believed that it was just, and so he has no more reason to hope that Q will try to ‘do in’ P than he has to hope that Q will succeed in doing P in. So if the case of sports patriotism demonstrates any contradictions (which, too, I doubt) these simply do not transfer to the military case. A possible objection might be drawn from Alasdair MacIntyre’s article on the virtue of patriotism.35 Let us suppose there may be circumstances in which our own country must fight a war. Then under the conditions imposed by military competition it is necessary that there be at least some people, i.e., the military, who exhibit what Oldenquist terms ‘loyalty patriotism,’ and who will fight for their country without critically examining the casus belli. They will just want their country to win, period. So in any condition short of a fully pacific world, iterative patriotism is unavailable, because it is inconsistent with military requirements. But many possible counter-objections arise. First, the argument seems to turn on whether or not a group of people may, within impartialism, have specific duties that other groups do not share: it remains to be shown that impartialism cannot accommodate differentiated duties of that kind, and one cannot simply point to the fact of differentiation as though it were a flat disproof. Second, any argument that admits distinctions of justice among wars implicitly creates a normative framework within which the alleged facts of military psychology are contained (rather as Plato’s warrior class – ‘loyalty patriots,’ surely – must be brought under the control of people who think). Third, whether or not military loyalty must be uncritical is simply a contentious question: at the time of writing, for example, the refusal of some Israeli soldiers to fight to defend illegal settlements provides a relevant case for discussion. And finally – perhaps paradoxically – if ever a game-like model of iterative loyalty could find a place in warfare, it would be, precisely, among those professional soldiers on whose necessary existence the argument depends: for like all professionals, they will tend to develop universal criteria of competence and success that are employer-neutral. They, of all people, would be ‘iterative loyalists.’ The impartialist, then, is not involved in practical contradiction. There is, however, a second objection to iterative loyalty, one that is based on the logical impossibility of maintaining both that there are special loyalties, as common sense conceives of them, and that the structure of morality has the form that the impartialist supposes. Here I draw upon two articles, one by Philip Pettit and Robert Goodin,36 and the other by Pettit alone.37 Both articles aim eventually to rescue the impartialist view,

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from a collision with common sense (Pettit and Goodin) or from paradox (Pettit). But here I am concerned to examine and reject the claim that impartialism collides with common sense or creates paradox even in the first place. Common sense tells us, claim Pettit and Goodin, that among our obligations there are some that have the following feature: they are both ‘relativized’ and ‘independent.’38 By ‘relativized’ they mean ‘identified by back-reference, usually employing a pronomial device, to the bearer’ – that is to say, relativized obligations cannot be specified without reference to the specific identity of the person called upon to perform them. (They cannot be converted into ‘Anyone has a duty to ... ’) By ‘independent’ they mean that an obligation ‘engages ... an agent on its own intrinsic merits’ – that is to say, it does not need justification in terms of contributing to some larger or further goal. The impartialist, they say, cannot accept that there are obligations of this kind. The impartialist would be content if either the relativity criterion or the independence criterion could be dispensed with – if the obligations could be shown to be either of a universally binding type or else a component of a universally binding end. But the conjunction of both criteria offends the impartialist. Similarly, Pettit, in a slightly later paper, draws attention to the supposed paradox ‘that the loyal agent satisfy two apparently conflicting assumptions. He must be sensitive to considerations of a sort that we can all find compelling; that is why it is an ideal. And he must be sensitive to considerations relating distinctively to the welfare of a particular person; that is why it is an ideal of loyalty.’39 The paradox is further elaborated by way of the idea of the practical syllogism.40 According to that idea, an action is explained when the conjunction of a major premise (stating what is desirable) and a minor premise (stating relevant circumstances) determines a practical result. If the major premise is ‘particularized’ (‘relativized,’ in the terms of the Pettit and Goodin article), then particular (relative) antecedents adequately render the action intelligible, and the universalist (impartialist) is refuted. If, then, the universalist both recognizes partial loyalties and defines morality in non-partial terms, how can paradox be avoided? Both papers, I believe, invite the same line of questioning. To begin with Pettit and Goodin: what exactly does it mean to say that, in order to embarrass the impartialist, a relativized obligation must also be ‘independent’? Pettit and Goodin give three negative examples, which, they claim, ‘exhaust the ways in which special duties might be classed as

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dependent.’41 A particular obligation would not be independent if it relied upon the idea of benefiting the world – one’s obligation to give one’s child music lessons would not be independent if it rested on supposing that one’s child was a future Mozart who would change musical history for the better. Nor would it be independent if it was justified by benefit to the child, for it may be that someone else could better promote that benefit – another person, not the parent, could pick the best piano teacher. Nor, thirdly, could the obligation be independent if it were a mere means to some further good end (perhaps ‘personal development should be furthered by every possible means’). But this list may not in fact exhaust the ways in which an obligation, while remaining specific to a particular bearer and a particular beneficiary, might nevertheless bring a larger obligation into play. There is at least one other way: when a parent confers a benefit on a child (when a friend confers a benefit on a friend, etc.) then in addition to the benefit conferred (which, we might concede, could as well have been conferred by some third party) the good of a certain universally valuable kind of relationship is also being promoted.42 It is important not just that a child should receive a benefit but that a parent should confer it, not just that a friend should receive a benefit but that a friend should confer it, etc. That insight provides political theorists with a way to justify civic obligation (to be discussed in the following section). But there is a still more basic objection to Pettit and Goodin, which is that the three kinds of nonindependence that they outline are exclusively and inappropriately instrumental in nature – i.e, they interpret independence as a condition requiring no further goal. In order to sustain the case that a common-sense obligation is embarrassing to the impartialist, the argument only has to show that the end that common sense seeks to promote is peculiar to the situation at hand. The impartialist would indeed be defeated by the demonstration that the end sought by common sense requires no further justifying end, if the impartialist case required that. But surely the impartialist would be content with showing that a particular objective was typical – not instrumental. An example does not depend on the type that it exemplifies: my obligation to my father does not, in the relevant sense, ‘depend on’ the value of filial loyalty. Rather, ‘filial loyalty’ is a label applied to innumerable particular cases of child-parent relations. It is not – in the normal case – an end that a particular child seeks to promote in helping her own father. It may become so when the good embodied in the idea of ‘filial loyalty’ has in fact broken down, when particular relations no longer

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express feelings of attachment, and guilty individuals have to appeal to abstractions; or else when others have to beat them over the head with them.43 The main point here can perhaps be better expressed if we turn to Pettit’s later article and its discussion of the practical syllogism. To repeat: if the syllogism is compelling, and the major premise contains particularized references, where does that leave the impartialists? Must they not either deny the common-sense view that such particularized practical syllogisms are valid, or else abandon impartialism? Again, the exclusive alternative seems false; for there is some slippage between the paradigm examples and the examples that illuminate the question at hand. Aristotle offers the following rather lame example (call it S1):44 Major premise: dry food suits all men Minor premise: this is dry food Conclusion: the man eats it Now, the example takes a universal form, but Pettit’s question (in effect) is: suppose we substituted a major premise that was (true, but) not universal, and which led to the same conclusion? Would that not conflict with S1? An example (mine, not Pettit’s) would be S2: Major premise: Ry-Vita suits Melanie Minor premise: this is Ry-Vita Conclusion: Melanie eats it Would this or would it not conflict with S1, though? It depends. S1 may mean that all items of dry food are good for all men (people). Or it may mean that among the items comprising the class ‘dry food’ there is at least one that each member of the class ‘men’ (people) will find suitable. Call these readings A and B, respectively. On reading B, there is no conflict between S1 and S2: that dry food suits all people, and that RyVita suits Melanie, do not challenge each other; nor is there mutual challenge between Aristotle’s paradigm example and examples involving the suitability of Finn Crisps for Erika or Wheat Thins for Kevin. Which explanation would be appropriate would seem to depend entirely on context. Confronted with a paid advocate of the Wet Food Lobby, I would say that Melanie and Erika and Kevin, indifferently, were eating dry food because it suited them: confronted with an aggressive Ry-Vita salesperson, I would say that Kevin was eating Wheat Thins because they

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suited him. The explanations are not in a general way rivals. So the paradox fails, unless, of course, we have a reason to insist on reading A of S1. The reason to insist on reading A would be Pettit’s requirement that the syllogism must apply ‘at the operational level,’45 that is, must be sufficient to explain the agent’s own considerations. We can, however, imagine situations in which reading B would meet even this stringent test. Suppose we observed Melanie, Erika, and Kevin on a picnic together, each eating his or her preferred brand of crispbread (‘Why are they eating crispbread?’ – ‘Well, dry food suits everyone’). Or, suppose Melanie has just been released from a long, cruel sentence in the Campbell’s Soup Gulag (‘Why is she eating Ry-Vita?’ – ‘Well, it’s dry food at last’). No doubt the examples are contrived. But is there a general reason why, in order to meet tests of universality, Aristotle’s model requires content that responds to reading A and not to reading B? Why can it not accommodate types of action rather than perfect intersubstitutability? Surely reading B, premised on typicality, is preferable on general grounds. Returning to the original example, filial loyalty does not involve relations between every member of class P (parents) and every member of class C (children); it generalizes relations between particular members of P and C, and on reading A the corresponding practical syllogism would contain a false major premise (just as Aristotle’s dry food syllogism, thus read, probably would, unless, remarkably, everyone likes Ry-Vita). But suppose there is, after all, some reason to insist on reading A: then we would have to say that all agents would have to weigh others’ needs equally, regardless of personal ties. That, however, requires agents to think about how needs can best be met. And the best meeting of others’ needs, after we do the weighing, cannot require the adoption of a practice that meets those needs sub-optimally. So even if reading A required everyone to meet everyone else’s needs in the first instance, it would evolve, practically speaking, towards the same conclusions as reading B. III So perhaps some ground-level obstacles can be discarded. But of course, it is another matter whether or not impartialist considerations can actually sustain this or that special duty, such as the duties of compatriots towards one another. On this once-neglected topic there is now quite a

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substantial literature, and some negative conclusions, at least, can be summarily stated without much argument. The impartialist cannot invoke simple proximity, claiming that although we have duties to everyone it makes sense that we should attend to our duties to those who are closer. The basic reason is very simple. However we draw the boundaries between country A and country B there will be parts of A that are closer to parts of B than other parts of B are, and vice versa.46 London, Ontario, is very much closer to Detroit, Michigan, than it is to Vancouver, British Columbia. A subsidiary point is that what is (effectively) relatively close or relatively distant depends on current and rapidly changing states of communication technology, and is far too unstable to form the basis of any regular drawing of morally significant boundaries.47 Nor is ‘efficiency’ a good candidate. In his article, ‘What Is So Special about Our Fellow-Countrymen?’ Robert Goodin argues that we can see ties such as ties among nationals as solutions to a coordination problem.48 In principle everyone has a duty to save the drowning bather; but in practice it is far better to delegate the responsibility to some specified person (a lifeguard) in order to avoid the chaos of everyone attempting to fulfil it. Likewise, it is better if co-nationals take on the responsibility of looking after one another, rather than everyone assuming a practical responsibility to look after everyone else. Goodin’s critics have raised serious doubts about this argument. The lifeguard analogy, it is pointed out, is misleading, for a lifeguard is someone selected on the basis of particular competence, and it is not the case that any members of poor countries are especially competent to look after their poorer compatriots – members of rich countries might well do it better.49 The ‘exchange of benefits’ approach has also been advanced as a candidate.50 Compatriots have benefited from their association with each other, and so they owe something to each other in return, the argument runs. Like Socrates in the Crito dialogue, we should acknowledge that the receipt of benefits creates an obligation. But, it has been pointed out, not all compatriots are in a position to confer benefits on others – some handicapped people, for example, may not be, and the effect of the benefits-received model is to exclude them from moral concern.51 Moreover, it is not only compatriots who exchange benefits: resident aliens participate in the exchange, and so the model cannot distinguish what we owe to compatriots from what we owe to guestworkers.52 Finally, under modern conditions the exchange of benefits extends far beyond national borders, and in a global economy the

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model fails to demonstrate that there is anything distinctive in the relations among compatriots. This list of approaches and rejoinders could be greatly extended, but even this cursory report on a few candidates and criticisms is enough to suggest that we need to settle a prior question: are the impartialists being asked for a reason why any special ties exist at all, or are they being asked whether the existing distribution of special ties, based on existing political loyalties, can be justified? It is true that none of the arguments just listed, or other parallel ones such as arguments from subsidiarity, shared culture, the protection of rights, and so on, can justify the special ties arising from existing political boundaries. But given that existing political boundaries reflect a history of violence, coercion, myth, colonialism, deception, dynastic ambition, and sheer chance, it would be something of a miracle if the ties that they supposedly gave rise to corresponded to a moral theory. The demand for such a theory would be entirely unreasonable. Arguments such as those just listed surely justify some special ties: proximity, efficiency, and gratitude create duties to some people that we do not owe to others. It is quite true that this leaves the existing boundary-based distribution of special ties without a justification. But that conclusion would be acceptable to an impartialist who was willing to become a moral cosmopolitan, i.e. to give existing political boundaries only a conditional justification. Challenged to become a political cosmopolitan, i.e. to go the whole hog and reject political boundaries altogether, the impartialist should not find it too difficult to resist. She could say that existing boundary-based ties were justifiable to the extent that they corresponded to some compelling argument such as (say) efficiency, but no further than that; or she could say that, given the huge transaction costs involved in shifting people’s loyalties, even the existing distribution of solidarity, whatever its morally random elements, is better than none at all. Two determined attempts to justify political loyalties, in a principled manner, deserve to be mentioned. One is Andrew Mason’s demonstration that we can rescue from the impartialists’ critics a ‘republican’ idea of the intrinsic good of a civic life lived in common. ‘Part of what it is to be a citizen is to incur special obligations; these obligations give content to what it is to be committed or loyal to fellow citizens and are justified by the good of the wider relationship to which they contribute.’53 The tie between one citizen and another, then, has a particular kind of moral value because the civic life, thus understood, embodies a valuable conception of what it means to live with others as equals. Another version is

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Christopher Wellman’s argument that a special concern for other cocitizens flows naturally from certain conditions that are necessary to democratic citizenship: for example, from the requirement that disparities in real power should not be great enough to negate civic equality, a requirement that would justify us in being especially concerned about the disparities of resources among co-citizens, to a greater degree than we may be concerned about disparities of resources between our country and others.54 Of course, for the political cosmopolitan these defences will miss the mark, for they cannot possibly justify the way that the boundaries that we have are drawn; perhaps they cannot even justify any boundaries, in the current sense, at all, for perhaps the good of citizenship could be realized at a variety of sites, without anything resembling the current monopolistic state.55 But the moral cosmopolitan, I have suggested, need not take on the political cosmopolitan’s ambition, because she may be content with what amounts only to an approximate justification of national boundaries. Mason’s and Wellman’s approaches lead to only a conditional result, for what they justify is a particular form of citizenship that is actually realized, or approximated, by only a handful of actually existing states. So to the extent that the objective here is to give some account, from an impartialist standpoint, of the special ties that we are said to have or even something that approximates them, their approaches clearly fail. But I do not think this is any reason to reject their approaches, or similarly conditional ones. For if we refer back to the partialist approaches that we considered above, we can see that they, too, are basically only conditional in their force.56 Both Oldenquist and Cottingham confront the problem of special ties of a morally obnoxious kind. What of racism? Oldenquist remarks: ‘racism is usually dependent on ignorance of the nature of race differences and on hostile, false claims about other races. Family, community and civic loyalties rarely have those features. A loyalty, like any norm, can be rationally faulted if it depends on ignorance of facts.’57 Likewise, Cottingham recognizes that racial loyalty might, objectionably, be among the loyalties that his argument defends; but he rejects the implication on the grounds that racism, ‘like all ethical reasoning,’ must be ‘sensitive to empirical evidence.’58 While demolishing the credibility of racist loyalty, the argument also cuts a vigorously comprehensive swathe through the patriotisms of the world, all of which are fed by ignorance and myth. While some may claim that national myths are (sometimes) not actually false but are simply embellishing,59 that is a distinction without a difference in this context, for embellish-

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ment is no less ‘sensitive to empirical evidence’ than simple error is. So while the impartialists’ ‘republican’ defence of nation-states may be open to the serious charge that it leaves too few existing states standing, the partialists’ view may, paradoxically, and from their point of view more seriously, leave no existing states standing at all. IV The partialist view may, however, have one strong point that would shift the argumentative burden here: its ‘phenomenological point,’ as it has been called,60 a point that casts basic doubt on the impartialist strategy. The impartialist wants to find general reasons for particular duties: but surely, within our direct moral experience, the duties are (usually) clearer and more compelling than the reasons. We are all much clearer that we should help our children or our friends than about why in general people ought to do so. So what – if anything – would the reason add? Doesn’t the very demand for a reason falsify our experience? The classic recent statement of this point is in Williams’s discussion of the ‘famous fire’ case. Acknowledging that good reasons could be given for rescuing one’s spouse rather than a great public benefactor, Williams complains that any reason that one could give would represent ‘one thought too many.’61 It is enough that it is one’s spouse. To Barry’s rhetorical (and satirical) question – ‘how does Williams know how many thoughts someone ought to have?’62 – Williams could surely reply that any thought is one too many. Up to a point that would be a perfectly good reply, and not only in the context of dire emergencies that require us to act without thought: for relational categories simply are carriers of important and unreflective action-guiding promptings, emergency or no emergency. Here the partialists have no trouble marshalling evidence of all the ways in which strong and unreflective ties to particular others are an essential part of ordinary moral experience. The impartialists’ two main replies are as follows. First, there clearly are times when we want reflectiveness to break in. In the case of what we may term another famous fire example – a real-world one this time – we would have wanted traditional Hindu society to reflect on the practice of widow-burning, even if we accepted that self-immolation was part of the very meaning of what it means to be a ‘widow.’ We might very well say, parodying Williams, that the widow who throws herself on the funeral pyre has one thought too few. History shows us that many powerful moral intuitions ‘may be dogmatic contentions which turn out to be

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false or misguided.’63 As we have seen, two of the main exemplars of the partialist viewpoint essentially accept this, for they insist that partiality based on false and destructive beliefs, such as racism, must be criticized and eliminated. But as we have also seen, their position seems unstable here, and it is not clear that they can concede this without giving up too much ground to impartialism, or else without depending on the unconvincing and apparently confused claim that ‘global loyalty’ can fill its place. Second, the phenomenological objection may rest too heavily on the question of motivation. As Gewirth says, ‘it seems to confuse logical structure with psychological episode,’ for what is at stake is not ‘how one actually thinks about some particular situation’ but ‘how that situation is logically related to universal justifying principles’ – what is important is ‘how one ought to think when the full structure of justification is involved.’64 So the thought here is that doing the reflectively right thing need not mean doing it reflectively; and surely that is true, even though, of course, as it stands it leaves us without a theory to explain why unreflective acts sometimes track what reflection would require. Now it is quite true that in the partialists’ writings the question of motivation has a very central place. Oldenquist, for example, writes (somewhat self-contradictorily) that ‘loyalties ground more of the principled, self-sacrificing and other kinds of nonselfish behaviour in which people engage than do moral principles or ideals’65 and presents his defence of loyalty as part of a program of moral renovation that will overcome social alienation and atomization. Cottingham complains about the ‘dilution’ of the power of moral attachment, which is normally particularized and embedded, by the unrealistic desire to spread it too thin.66 And virtually the whole thrust of Rorty’s ‘Justice as a Larger Loyalty’ concerns the best way to motivate respect for others, rejecting ‘Enlightenment rationalism’ and the appeal to dry principles in favour of the creation of community by the use of imaginative appeals.67 I do not think, however, that the stress on motivation is the strongest card in the partialists’ hand; it is much too easily trumped by means of familiar distinctions, such as those above. A different kind of point is made by Oldenquist in considering the case of the Godwinian father who saves his daughter’s talented friend rather than his own daughter. Of course, we can explain our reaction by saying that ‘we have special obligations to our children,’ thus generalizing our judgment of the man, but Oldenquist rightly points out, first, that the violation of such a general principle does not explain ‘the

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contempt and embarrassment’ that we are likely to feel, and second, that as a principle it could potentially be overridden by some other relevant principle – such as the principle that very talented people should be preserved.68 (I do not think it is essential to Oldenquist’s case here that he should have a utilitarian opponent in mind – one principle can of course override another on grounds other than utility-maximizing ones.) So we have, first, a particular kind of moral reaction (‘contempt and embarrassment’) and, second, a reaction of a sort of strength that resists overriding in virtually any conceivable situation. Perhaps we can contrive terrible situations in which we can imagine it being overridden,69 but just because we have no phenomenology of those situations ready to hand they do not obviously defeat Oldenquist’s immediate point. Now unlike other elements in the partialist case, which were described above as unhelpfully quantitative and spatial, this element draws attention, most valuably, to a qualitative difference. It is not easily explained. Here in particular the only conditional success of the impartialist strategy, in explaining special ties, seems a liability. But beyond that, there is Oldenquist’s surely accurate sense that some peculiar kind of failure has occurred. We may not feel ‘contempt and embarrassment’ in other cases that we can imagine, for example, the case of a negligent train driver whose inattention causes dozens of deaths; the case of an impaired motorist who causes a fatal accident; the case of a murder in the course of committing theft. We are more likely to feel some complex blend of anger and hatred and pity. So why the difference? Part of the answer must be that what parents are meant to do for their children is not in the first instance a matter of duty at all, so that the sense that Oldenquist is getting at is a sense of a personal emotional deficiency, rather than a moral one. We might have very much the same sense if we discovered that a parent who did fulfil his ‘duties’ to his child was really doing so out of reasoned obligation – if the father rescued his daughter, not her friend, just because she was the better music student, or just because he was in the running for ‘father of the year’ award; it’s simply that we would be quite unlikely to find this out, and normally it takes the breach of a ‘duty’ to bring the emotional failing to light. This is different from the question of what motivates a duty. That is an issue in the other exemplary cases of failure mentioned above: we do indeed want the train-driver to be conscientious, the motorist to be sober, we do indeed want people to have strong feelings against taking life. But there is a certain separability in those cases between the action description and the motive. The train-driver, for example, might be

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conscientious as a matter of professional ethics, or religious belief, or good citizenship, and we would think none the worse of her for being motivated in one way rather than another. It does not matter. But in the parental case the emotional component is not separable from the action description: we want the daughter to be rescued out of a certain kind of attachment. One does not have to accept the political agenda of the ‘family values’ movement to see its point that what matters is not just that children’s important needs are met, or (even) just that they be met by certain people rather than others, but also that they should be met by certain people in a certain kind of spirit.70 (Whether or not one accepts their political agenda depends on how far one pushes this point in the face of the risk that the needs are not met at all; as well, perhaps, on what one takes the list of needs to be.) V There is, then, a distinction between emotionally motivated and emotionally constituted commitments, and in the latter, what it is that moves the agent cannot be bracketed out. One strategy for impartialism would be to set those kinds of commitments outside its domain; invoking ‘ought implies can,’71 it could acknowledge that we cannot command our feelings, and rule that anything emotionally constituted is therefore beyond its scope. It could rule it to be non-moral. But impartialists should be reluctant to do so, for that would be to concede a huge amount of ground to the partialists. It would mean that the impartialist could have nothing to say to the unloving parent, and that the partialists were right after all to impute to impartialism a cold view of human life, ‘threatening the very basis of our humanity.’ So there may seem to be a logic here that drives us towards a dualist alternative, that is, an alternative perspective that tries to give weight to what is compelling in both the partialist and the impartialist views. Thomas Nagel, notably, constructs a view in which the partial or ‘personal’ perspective and the impartial or ‘impersonal’ perspective both have an inescapable hold on our attention. ‘We see things from here, so to speak. But we are also able to think about the world in abstraction from our particular position in it – in abstraction from who we are.’72 Now ‘you cannot sustain an impersonal indifference to the things in your life which matter to you personally,’ so you cannot abandon the view ‘from here’: but the same can be said from the standpoint of each other person – ‘If you matter impersonally, so does everyone.’73

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The partial or personal point of view embraces both self-interest (you want the last chocolate eclair) and what we may call local altruism (you want the last lifejacket for your own child).74 Now here at once some doubts may arise, for as much may seem to divide those two categories as to unite them.75 That was already a striking issue, I believe, in Oldenquist’s article. Whether or not one should universalize local altruism, he argued, is ‘exactly analogous’ to the question of whether the egoist ought to universalize his claims: that the egoist has no reason to extend to others the benefits that he seeks for himself shows us that the local altruist has no reason to extend the benefits that he seeks more widely than he proposes.76 But surely this is wrong, for the analogical misfit is total. For the egoist would not be open to blame if he abandoned his self-benefiting project – he might even be regarded as a saint or hero; whereas the local altruist would be open to blame if she gave up the project of benefiting her children without a very strong reason indeed. Oldenquist himself notes the difference when he writes that ‘the shift from “me first” to “mine first” (and hence to “ours first”) is of the greatest moment: it is what makes society possible.’77 But if that shift is really of such great moment, how can we also regard ‘me first’ and ‘mine first’ as simply analogous? The local altruist, it is (somewhat tentatively) acknowledged, might think that ‘consistency’ requires accepting that others should look after their children too, while the egoist has no reason to value anything except what benefits him.78 Local altruism, in other words, is open (unlike egoism) to broader claims, whether by iteration (as here) or by expansion. (By ‘iteration’ I mean extension to like cases, by ‘expansion’ I mean application to larger cases.) A similar line of reflection is prompted by Nagel’s much fuller and more complex discussion, which shows signs of strain in trying to keep the egoist and the local altruist within a single category. In some respects, giving weight to the personal point of view is required in the light of concerns about demandingness – about ‘utopianism’ that ‘puts too much pressure on individual motives.’79 That sort of concern applies clearly to the case of personal self-preference; while the world might be a better place if some kinds of self-preference were suppressed, we have to give reasonable weight to the constraints of human nature. As just noted, we might think very well of people who heroically transcended self-preference by (for example) selling their cars and relying entirely upon environment-friendly public transport, but to approve of something being done voluntarily is not always – given assessments of human nature and its needs – to approve of its being compulsorily imposed. But

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the suppression of local altruism comes under a different head of concern altogether. In the first place, relatively local altruism is by no means always less ‘demanding’ than relatively general altruism. For sometimes, relatively general altruism may socialize the costs: paying one’s share of support for a good public education system, for example, may be less costly than paying private school fees; or, paying taxes to support a public health system may be less costly than taking out private health insurance for one’s family; or, public solutions, by solving prisoners’ dilemma problems, may reduce the ‘demanding’ costs that protecting one’s family or local neighbourhood would otherwise impose. (Joseph Heath’s book on The Efficient Society is illuminating here.)80 In the second place, the reason for not replacing local altruism with more general altruism can be quite different: it is not that local altruism enters into the matter as a sheer constraint – as self-preference enters into, and derails, ‘utopian’ projects – but that it enters in as a moral claimant. The reason why it (sometimes) enters in, in this way, brings us back to the topic that concluded the previous section above. It is sometimes important not just that something be accomplished but that it be accomplished from a certain kind of motive. Caring for the needs of children, other family members, personal friends, and perhaps in some cases professional colleagues81 provide the clearest examples. Exempting such care from the imposition of more general altruism does not represent a concession by impartialism or a compromise between two distinct moral perspectives. It is what a properly informed impartialism requires, given the objectives that it favours, and given some constant and familiar facts about human dispositions and behaviour. It is perfectly true that this conclusion is very much easier to accept in the case of some examples than of others. It is more or less inescapable in the case of family or friendship. It is very much less inescapable in the case of nations, where it is far from clear that what is done is less important than who does it and why. But that I think simply explains, and justifies, the compelling doubts that many have about the easy transferability of argument from family to nation,82 and also casts doubt upon the idea of a ‘personal point of view’ that encompasses everything from egoism to nationalism on the grounds that that whole range of phenomena is interest-based or non-impartial. Both ‘interest’ and ‘partiality’ are terms that may conceal distinctions. What we want to say about ‘interest’ as personal advantage is different from what we want to say about the ‘interest’ that one takes in one’s children,83 even though in ordinary speech the term does indeed en-

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compass both the exclusion of others and the inclusion of others in one’s field of concern. ‘Partiality’ too, we may note, also has two interestingly different though related meanings. It may of course mean preference for myself and/or for what I see as mine, and then it refers to a particular kind of feeling of a strong and exclusive kind. Its power in human nature has long been noted – the need to contain it, Locke believed, was the very reason for the need for states – and realism alone would dispose us to respect its place in human life. But ‘partiality’ may also refer simply to the less than universal scope of some commitment or project – its relation to a part rather than a whole. Let us call these P1 and P2. As just noted, P1 may sometimes legitimately moderate impartialist demands, on the grounds of non-utopianism. P2, on the other hand, may be favoured by impartialism, on the grounds that what is found desirable at the level of the whole may better be furthered if it is pursued at the level of the part. In those cases, P1 is also accepted by impartialism as an important motive, not just – to repeat – because it gets the job done, but because the job is done better (or can only be done, even) with a high level of affection. So if this model makes sense, we may see moral impartialism as a set of filters that retain some partialities and discard others.84 Those filters will be quite hard on personal selfpreference, though they will be tolerant; they will be less hard, although not wholly accepting, in cases of local altruism. They will admit affectsensitive cases, but may well exclude others.85 The impartialist would have a very strong reason for not wanting special responsibilities (of the kind at issue) to arise from impartial considerations. That reason, as noted above, is based on ‘the repugnance of acting from moral duty.’86 It should recognize ‘the importance of the attitudes and dispositions one has when one performs certain acts, especially those which are intended to express affection or concern.’87 But it is an obvious fallacy to suppose that, just because one does not want the acts to be performed out of a sense of duty, they are not therefore duties at all. People may have special responsibilities that they think they lack: Samuel Scheffler offers the case of an ungrateful daughter who owes her start in life to hard-working immigrant parents but who denies their claims upon her.88 We think, relying on general considerations about desert and gratitude, that she ought to help them if they need it, and that she should do so whether or not she loves them, although we would very much prefer that she should do it out of love. Only a slightly more complex argument is called for by the converse case, that of believing that one has duties when one does not. The

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example here is that of an abused wife who believes that she must stand by her man; we want her to recognize in her spouse a total failure of basic duty that cancels any reciprocal obligation. So when the appropriate feelings fail we want them to be replaced by the recognition of what duty requires; not indeed because they are mere proxies for duty – for they work very much better than duty can – but because they work in parallel with what a scheme of duties is meant to accomplish. Correcting an important potential misunderstanding, Marcia Baron points out that it is not only when affection fails that an agent needs the guidance of duty; she also needs it when affection tempts her to go too far – ‘at times the very good motives of very good people need to be tempered.’89 This would be the case, for example, of a kindly teacher giving her favourite students higher marks just because she liked them; or, returning to but modifying the famous fire example, the case of a devoted man who decided to save his wife, when she was in no real danger, at the expense of a complete stranger who was on the point of being burnt alive.90 Of course, as Baron also points out, we would still want him to be inclined to save his wife – would think very much less of him, in fact, if he felt no such inclination – even if we also want him to do what is right and save the stranger. Duty and inclination are, as it were, within the frame of a single moral picture. This account has tried to show, first, that, hard though it may sometimes be to maintain one’s focus on both at once, there is no basic reason to force one or the other out of the frame; second, that the ground cannot simply be parcelled out, irenically, between the two; third, that we stand a much better chance of accommodating partialism within impartialism than of doing the reverse. On the other hand, ‘the phenomenological point’ should leave impartialists with a nagging worry. According to the impartialist case outlined above, some partial attachments pass the ‘filter’ test because they track general duties; of course, they do not only track general duties, they add a personal element that enriches the duty immensely. Suppose, though, that the care-givers fail: on the impartialist model, they fail in a general duty, and are subject to whatever censure follows. But there would seem to be no reason to hold them accountable for the particular kind of personal failing that they are responsible for, as opposed to a general failure of duty. So why should there be a particular kind of condemnation in this judgment – that is, condemnation accompanied by contempt? Why should the affective quality of our judgment of the terrible parent be any different from our judgment of the bank robber? Is there, as briefly suggested above, simply

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an intermingling of sheer personal dislike with moral judgment properly so-called? Or do the affectively different responses track finer moral discriminations? Perhaps the right interim result, until that question has been answered,91 is: Jesus 3, Polemarchus 1. The next two chapters will try to refine that conclusion, by exploring two important debates about membership.

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11 On Special Ties (2): What Do We Owe?

Cosmopolitan moralists, the previous chapter argued, have a claim to be able to accommodate partial ties and to do so in a way that appreciates their significance. But they will have an easier time accommodating some than others, even when their significance is appreciated, for the basis of the claim for accommodation varies importantly. Consider the case of ‘special rights.’ In addition to whatever rights we may have simply as humans against other human strangers, there are rights that are ‘special’ in the sense that they are held against particular others only. Some of these arise from obligation-creating acts, such as making promises or voluntarily receiving benefits. Others arise from participation in relationships, such as friendships or families, or, somewhat more contentiously, from membership in national societies. Yet others, or so some believe, arise from damage suffered or caused by us or our ancestors in the past – possibly a quite distant past. Of the three kinds of rights, the first is the least problematic, which no doubt explains the appeal of trying to demonstrate that all special rights are of this type.1 The second kind give rise to much more dispute, and not only because of disagreements over what falls within that set – in particular, whether rights arising from nationality do; for even when there is agreement about content, some maintain that relational ties, just like promises, are simply local instances of universal obligation – such as an obligation to aid – while others maintain that they are a distinct kind of ‘thick’ obligation arising from or directly constituting particular relationships themselves.2 But what of the third kind? They pose the most forthright contemporary challenge to the cosmopolitan view, for they present national identity as a fact of primary moral importance and as the basis for demanding requirements that take a particular history and not general morality as their point of departure. So they deserve a discussion of their own.

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Many people act and speak as though past injustices create lasting obligations on the part of the perpetrating group and lasting rights on the part of the victim group. Alasdair MacIntyre, notably, writes: ‘I will obliterate and lose a central dimension of the moral life if I do not understand the enacted narrative of my own individual life as embedded in the history of my country ... For if I do not understand it I will not understand ... for what crimes of my nation I am bound to make reparation.’3 And at the level of practice, in recent years states and other institutions (particularly churches) have taken up – or have been compelled to face up to – the cause of righting past wrongs.4 These wrongs have been of the most varied kinds: genocide, slavery, and the dispossession of territory; enforced prostitution; sexual assault; forced conversions; deportations; the enforced and deliberate deprivation of culture; theft, of money or of valuable objects such as works of art; the appropriation of human remains or of cultural objects for scientific purposes; persecution for religious or other reasons; acts of war; the internment of ‘enemy’ aliens; unjust taxation or immigration policies; or the failure to help vulnerable groups in times of great need. Various kinds of actions have been undertaken in order to right such wrongs, ranging from the literal return of the object that was taken (in whole or in part), through financial compensation based on estimates (somehow reached) of the value of the object, to apologies (or apology-like acts under various names) with or without accompanying compensation. All these acts are described in the language of restitution, despite occasional attempts to restrict the use of that term.5 They are justified as attempts to cancel a wrongful loss, insofar as it is possible to do so. It is interesting to speculate about the causes underlying this global surge of restitutive justice. One element, surely, must be a comparatively rapid transformation of norms, with the effect that many institutions now have a history of which they are, or can be made to be, ashamed: what was once tolerable or even sanctioned no longer is. A second element is a climate of moral egalitarianism in which attention is naturally focused on claims of historical exclusion. A third element, in some of the cases listed, may be the trend towards the increased accountability of states for their international behaviour: although it is characteristic of restitutive justice that it is sought through negotiation rather through international courts, the recently prominent role of international courts may well have created a larger halo of expectations – a sort of informal international tort regime, in which wrongs are to be righted not by punishment but by the compensation of the victim.

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But whatever the reasons for the wave of demands for restitution, it poses interesting questions for political theory, and the questions have not been given as much attention as those posed by other kinds of special rights and duties. If there are restitutive duties, should we explain them simply as instances of some universal obligation – for example, an obligation to reduce poverty – or should we explain them in the way that moral partialists explain relational ties – as ties arising directly, not derivatively, from a particular connection between two parties? The implication of this apparently abstract question for practice is important, in at least two ways. First, if supposed restitutive obligations are simply applications of justice in general, history falls out of the picture and all that counts is the assessment of existing deprivation or unfairness. Second, if history does fall out of the picture in this way, restitutive obligations have no generic priority among the various requirements that justice may impose. One may naturally suppose that there is a third implication, too: that whether or not the justice involved is specifically restitutive – or, rather, an instance of distributive justice, say – will have a bearing on the appropriate remedy. But that seems to me less clear, and I will argue below that it is important to distinguish between questions of liability and questions of remedy. I argue in this chapter for a version of the universalist position and against the partialist view that bases obligations on historical connections between perpetrator and victim groups. Not one word in this chapter is intended to be critical of the return of land to aboriginal groups; of the payment of compensation to the victims of racism or sexism or assault; of apologies (if sincere) for the Inquisition, for the burning of Giordano Bruno, or for the Boer War. What the argument is against is the idea that acts of this kind should be thought of as “restitutive.” I believe that many such acts can be justified in terms of the requirements of a handful of familiar maxims of justice; but I believe that nothing is gained by inventing a category of restitutive justice, and that in fact much is to be lost, for that proposed category opens the acts in question to difficult puzzles and telling criticisms, which – as well as confusing the matter, and disguising what is at stake – effectively tend to undermine the acts in question by resting them upon an unconvincing justification. I As noted above, the least problematic type of special right is that arising from a promise. Interesting meta-ethical disputes about why promises

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should be kept assume that they should be. Now some issues termed ‘restitutive’ involve promise-based claims. Many of the claims made by aboriginal groups in North America and Australasia stem from broken treaties or violations of other formal undertakings. (It is not implied here that formal promises are more binding than informal ones: but formality does remove contested evidential issues.) Treaties are backed by one of the most ancient principles of universalist morality – pacta sunt servanda – and obligations arising from their breach are very straightforwardly explained. Repairing the breach is not restitutive justice: it is simply justice, in relation to a breach that, as it happens, occurred quite some time ago. Particularly if the original treaty concerned the ownership or use of land, a subsequent history of ownership and use will have intervened. Innocent latecomers will have built up reasonable expectations of possession, and returning the land to its original owners, while remedying the original breach, will create significant new injustices.6 But that only amounts to saying that the remedy cannot (often) be simple wholesale return, a fact that complicates the matter without modifying the character of the injustice itself. Nor does the lapse of time pose issues about the transmission of responsibility. For it is in the nature of states to claim legitimacy based on their continuity through time: if Australasian and North American governments claim to be continuously related to the corresponding governing entities of the nineteenth century, then they can hardly claim to be relieved of nineteenth-century liabilities. Moreover, as David Lyons points out, in many cases aboriginal peoples themselves claim continuity as national entities, which means that the other half of a potential transmission problem is satisfactorily dealt with.7 So breaches of treaties or solemn promises made by governments are in a class of their own: they are, without further argument, unjust. But not all of the damage inflicted on native peoples comes under this heading. Much of it was done by forcible expropriation without treaty, by coerced purchase or purchase at exploitative prices, and much of it was done by private persons with or without state knowledge or connivance. But Janna Thompson believes that we should assimilate such cases to the breach-of-treaty case, on the grounds that a state’s failure in its general duty of protection is just as culpably irresponsible as its failure to honour a promise.8 This proposal seems questionable, however. It is in the very nature of a promise such as a treaty that it should continue to bind – if not forever, then at least indefinitely. If it did not, it would have neither meaning nor use. It is certainly true that failing in a responsibility is as

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serious a matter as breaching a promise, but responsibility is not a concept that implies inherent durability. It is unlike a promise, too, in containing both a comprehensive and a discretionary aspect, so that neither particular claimants nor particular claims are clearly picked out from among very many potential ones. Eighteenth- and nineteenthcentury states failed in many responsibilities, even by their own limited standards, not to mention the standards of later times. ‘Quite apart from particular frauds and expropriations,’ Jeremy Waldron remarks, ‘things were not marvelous in the 19th century.’9 Breaches of treaties, then, are exempted from the critique developed here, though I deny both that they call for restitutive justice and that they provide a model for other injustices. The second exemption to be made is the matter of apology. It is manifestly important to groups who have suffered injustice or insult, however many years ago, that what happened should be publicly acknowledged and publicly regretted. Recent political thought has emphasized that ‘recognition’ may be as important as ‘distribution,’ and that even groups that have done quite well from an economic point of view may need something more – acceptance on the basis of who they are and the particular history that they have.10 Very often, acceptance may require the public expression of regret for exclusionary and discriminatory acts, and often a group’s need for self-respect will impel it to demand formal apologies. Now the idea of a public apology may raise interesting issues, particularly with regard to the standard requirement that an apology must be sincere: who is required to be sincere when an apology is made in the name of a collective or institution? But it is hard to see on what reasonable grounds a request for apology could be denied: given the most elementary belief in equal citizenship, it is basic that barriers to inclusion should be removed. Apology is one thing, however, and restitution another. First of all, the core of restitution is the making good of damage, which needs to be distinguished from the central role of apology. Restitution clears what may be called the ‘damage account,’ apology clears what we may call the ‘respect account.’11 If I trip you up in the street, I have not wiped away the act if I simply help you back to your feet without a word.12 If I break into your mountain cabin for shelter in a snowstorm, I have not wiped away the invasion if I simply leave money for repairing the door.13 Over and above any duty to make damage good, there is a duty of respect for others’ persons and property, appropriately discharged in some cases by apologizing. So to call apologies ‘restitutive’ is to confuse two importantly different moral requirements. What is liable to muddy the waters

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here is that apologies by states are often accompanied by cash payments, for apologies run the risk of seeming too easy, and money is a token of seriousness. But as Waldron has pointed out, the function of the payment in such cases is distinctive,14 a point to which I shall return below. Second, the point of apology is so clearly future-oriented. Societies that have discriminated against ethnic or religious minorities, and settler societies built on the expropriation of aboriginal peoples, want to demonstrate good faith by putting violence and prejudice behind them. An apology is a natural way of declaring this. It would, after all, be utterly worthless if it were to be immediately followed by further acts of the kind just apologized for. In this it is unlike restitution: restitution makes up a loss even it happens to be followed by further losses, but an apology followed by a repetition of the insult is worse than meaningless – it outrageously compounds the offence. Moreover, the record shows that states do not issue apologies for the complete extinction of peoples. They offer apologies to groups that have survived and with whom the majority society now wishes to find a way forward. If the Canadian state were to issue an apology for the extinction of the Beothuk people, the original inhabitants of Newfoundland, that would be understood as an apology that takes the Beothuk as a proxy for other, surviving, groups that have been violently damaged by European settlement. II What do we owe to those whom we have harmed? Even if we take the simpler case of recent harm, surely less complex than ancient harm, the paradigm of restitution seems tenuous. I want to suggest this by modifying Shelly Kagan’s ingenious thought-experiment designed to test our intuitions about what perpetrators owe to victims. In Kagan’s model, an agent (Agnes) has inflicted harm upon a victim (Victor) by maliciously pushing him into a swimming pool.15 Complicating the example in order to raise allocative questions, I want to imagine two agents (A1 and A2), two victims (V1 and V2), as well as two revellers (R1 and R2) and two sober and innocent bystanders (B1 and B2). If we follow our intuitions, we are led to see how little is clearly due to past actions in deciding on present responsibilities. A1 pushes V1 into the pool, A2 pushes V2 into the pool; simultaneously, R1 and R2 fall into the pool, unpushed. Who has a right to be rescued, and who has a duty to rescue? Everyone has a right to rescue, other things being equal, and everyone has a duty to rescue, other things

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being equal. But other things are not equal in the example, for we may well think that V1 and V2, who are innocent, have a right to be rescued that takes precedence over any right enjoyed by the feckless R1 and R2, and that B1 and B2, who also are innocent, have less of a duty to rescue than the aggressive A1 and A2 do. So, V1 and V2 have priority (over R1 and R2) in terms of being rescued, and A1 and A2 have priority (over B1 and B2) in terms of rescuing. But it does not follow that A1 has any special responsibility to rescue (among those persons whom s/he is responsible for rescuing) V1, whom s/he pushed into the pool, as opposed to V2, who (like V1) also has a special claim to be rescued. Suppose A1 rescued V2, whom A2 had pushed into the pool, while A2 rescued V1, whom A1 had pushed into the pool: would that outcome be any worse, from any point of view, than an outcome in which each pusher had rescued his or her own respective pushee?16 Suppose that neither pusher’s decision to rescue one pushee or another reflected in any way on their degree of remorse – they just happened to be physically closer. Then both the duty to rescue and the right of rescue would have been fully observed – yet neither of the aggressors would have made good the specific loss that s/he had brought about. No one would have made restitution, though justice would still have been done. So the restitutive model of justice may be suspect. Of course, other elements have been left out: in addition to the accounting of damages, there is what we termed the ‘respect account’: even if it does not fundamentally matter who makes good the damage (provided that all damages are made good and all damagers contribute), each aggressor has failed in a duty of respect, as we can see by considering whose apology to whom, in the example, would count, or even be meaningful.17 It would be simply absurd to apologize for someone else’s act of pushing someone into the pool: but the argument above has tried to separate restitution and apology. But could we substitute collective responsibility for individual responsibility? We might say: the class of pushers has a special responsibility to rescue the class of pushees, though it does not matter which pushee gets to be rescued by which pusher. That would reaffirm the principle of restitution – there would, after all, be a special responsibility on the part of one class to make good the loss suffered by another. But would we really think less (than we already do) of the pushers if, instead of rescuing any pushee, they chose to rescue the revellers, on the relevant and plausible grounds that, being incapacitated, they needed help more? To refine the point, would we think less of (say) A1 if he saved either

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reveller than we would of A2, if A2 chose to save either of the victims? If not, then the collective responsibility version of the model fails too. If restitution, however interpreted, is unsatisfactory as a principle here, what should replace it? Well, on the basis of the example, two things. With regard to the drowning persons’ claim to be rescued, the main operative principle is surely one of need. If no hard choices had to be made, the victims and the revellers should all be rescued, because they have an important need to be. If they can’t all be rescued, or if we have to establish a queue, then the victims take precedence because another principle of a less urgent kind – that we all bear responsibility for our actions – intervenes to mitigate the seriousness of the non-saving of the revellers. The subordinate nature of that principle is revealed by the fact that it obviously would be overridden by a stronger case of need, e.g. – and quite plausibly – the need of an irresponsible but incapacitated reveller, if another potential rescuee, although not irresponsible, had a clearly greater capacity for self-rescue. If we are willing even to entertain considerations of this kind, surely that means that no basic tie links aggressor and victim and that the basic principle is need: and that this remains the case even if we collectivize the aggressors’ responsibility. With regard to the aggressors’ responsibility, what – apart from intuition – supports the view that it is greater than that of bystanders? I share Kagan’s view that it is much harder to answer this question than intuition suggests that it should be. But here is one possible answer: it is to do with the costs of rescue. Suppose A1 and A2 were, for some neurotic reason, rescue freaks; suppose in addition that the day was hot and the water pleasantly cool; rescuing anyone, victim or reveller, would be a joy for the aggressors. Would we then regard their rescue of any drowning person, victim or reveller, as an act that mitigated their original offence? Surely not: in fact, it might compound the original offence, if it led us to suspect that they pushed V1 and V2 into the pool in order to have the further pleasure of rescuing them. So, acts of rescue mitigate original offences only if they involve costs – the act must be unpleasant, or dangerous. If that is so, then we may allocate a special duty of rescue to the aggressors on the grounds that, being costly, it diminishes the benefit derived from the original offence – for if rescue were costless, it would not. What is the effective underlying principle here? Surely it is that no one should benefit from a crime; imposing a special duty of costly rescue is an imperfect way of applying that principle, and a reasonable one, given that the costs of rescue have to be assigned somehow. Here, I believe, we have a very good example of what Joel

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Feinberg terms ‘weak retribution’:18 without endorsing a strongly retributivist theory of justice, we might still agree that, if there is no other way to make up a loss, then it should be done by penalizing the gainer. We can test this within the context of the example: if the local authority were to rescue V1 and V2, and to punish A1 and A2, that would be a better outcome than if rescue-hungry A1 and A2 incurred not a loss but the further pleasure of rescue. This may seem an odd application of the no-one-should-benefit principle, which applies most obviously to property crimes, involving as they do a distinct transferrable object of determinate value. When no one gains from a loss (as in traffic accidents) matters become more complex.19 No doubt the principle is easier to see in cases of symmetrical and material gain and loss: but it also applies when the good obtained is of a ‘psychic’ kind, i.e. the mildly sadistic pleasure of pushing an unsuspecting person into a pool. And even if the aggressor took no pleasure in the act, but was putting into effect some existentialist theory of the acte gratuit, s/he was enjoying the good of putting that favoured theory into effect. So it is not at all implausible to invoke the no-one-should-benefit principle here, since a benefit of some kind or other may be assumed. And it is enough to explain why the aggressors should be assigned the duty of rescue, without invoking any special tie of a historical kind between any particular aggressor and any particular victim. III If forward-looking considerations are doing much of the work, beneath what may look like a restitutive surface, that might explain the marked tendency of restitution theorists to try to close the gap between past and future and to enclose essentially forward-looking considerations within what (in my view) are only formally backward-looking frames. This is attempted in several different ways. Thompson, as we have seen, proposes to bring the duty to make restitution under the duty to keep promises: if in the present we do not carry out what was promised in the past, then in the future we cannot expect our successors to carry out what we have promised. I have suggested above that this is only questionably a case of ‘restitution,’ and that in any event it is doubtful that the argument can be successfully extended beyond the breach-of-treaty cases. An alternative proposal is made by Robert Sparrow, also with respect to injustices to aboriginal peoples.20 If we fail to make ‘any decisive break with the past,’ when future observers look back at us, they will see no

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difference between what is past to us and what is present to us – it will all be an undifferentiated ‘past’ to them. This seems true, but all the weight falls, first, on the continuation of past practices (or at least their direct effects) into the present, and, secondly, on their simple injustice. History seems not to come into the argument in any significant way. A third position, Duncan Ivison’s, addresses the need to build ‘social trust’ by responding to aboriginal demands.21 This avoids the risk of collapsing into a simple forward-looking argument by invoking an ‘interpretive’ strategy to which reflection on the past is essential. Although it would be wrong to see a community’s traditions as entirely hermetic, at the heart of any community’s moral life is a continuous process of reflection on its own identity. If its identity has been built on the exclusion or marginalization or persecution of some groups, then critical reflection on that history is an essential part of creating a new identity that fosters cooperation rather than exclusion, and of reinterpreting core values in ways that recognize their violation in the past. ‘Interpretations of the past are used to support or deny various possibilities in the present.’22 Moreover, it is obviously essential to this process of reflection that it should involve dialogue with the previously excluded themselves. This line of argument poses a strong challenge to the approach taken here, and especially to thought-experiments of the kind sketched in the previous section. Abstract examples of that kind may have the merit of distancing us from real-world cases in which our feelings are already engaged. But they construct artificial contexts involving under-described individuals, and so, it might be feared, they falsify real-world situations to which the concrete and embedded situation of agents is essential. (Here of course familiar critiques of the Rawlsian thought-experiment provide a parallel on a much larger canvas.) A defensible theory of justice, it might be argued, must draw upon and reflect the actual array of views, fully expressed and properly listened to; and some issues of restitutive justice are exactly about the need to do that, for the injustices in question arise from (for example) entirely different conceptions of property held by settlers on the one hand and aboriginal peoples on the other. Now one can concede quite a lot to this view without adopting it. One can certainly accept the need for dialogue and the need to interrogate one’s own views in the light of the different views of other participants: here there is common ground between an interpretive position and an open-minded universalism open to enrichment by dialogue. One can also accept that in arriving at ‘how best to address’ injustices23 we must

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take account of aboriginal beliefs and ways of life: it would be absurd to set out to remedy a wrong without learning about the point of view of those who suffered it. That in itself, however, does not tell us that it is anything other than present injustice that we are seeking to remedy, or that it is not our own sense of justice that compels us to do so. So we may not need an interpretive theory to establish those important conclusions. Moreover, we may need to question, in this case too, whether we have really been given a theory of restitution as such. For let us concede that an adequate theory of justice must be dialogically and interculturally developed: that theory will face the same issue of what to do about ancient wrongs as any other. Let us agree that it may have told us more about what the wrong was: unless we assume that every wrong is to be righted, we face the same question as before. IV Aristotle speaks of ‘equality’ being restored when an unjust gain is returned to the loser.24 And in the context of tort law, James Nickel says that the objective is to see that ‘The loss is shifted from the victim to the person who caused it.’25 This is an intuitively compelling idea of a certain kind of justice, reinforced no doubt by childhood memories of parental interventions into inter-sibling transactions. We might well think that it corresponds to the simplest and clearest case of restitution, when person A, having taken thing x from person B, returns it to B (A, x, and B all remaining continuous). That sort of case is represented by the return of sacred or culturally significant objects from museums to their original owners, the return of human remains for appropriate ritual treatment, or the return of specific pieces of land that have particular sacred meaning to a native group. Those may be clear enough cases of restitution, although even here some serious queries must be raised. First, when we consider, for example, the return of sacred masks from museums to native societies, what is surely striking is exactly the disproportion between the masks’ value to the two parties. It is nothing like a symmetrical cancelling-out of loss and gain: what makes the return important is precisely the fact that there is no comparison between their value in terms of spiritual identity and self-respect on the one hand and their curiosity or aesthetic value to museum-goers on the other. That is at least one important reason why it is just to return them. The case of returning human remains is perhaps even clearer. In a well-publicized case, the Smithsonian Institution returned the remains of Ishi – the ‘last

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of the Yahi Indians’ – whose body had remained in storage in its anthropological collection for many years.26 The possession of the remains was not a gain, but a serious embarrassment, to the Smithsonian; and since the Yahi people no longer existed, it was necessary to transfer the body to a related people who had never suffered the loss in the first place. One can think of various reasons why this was a good thing to do – principally, perhaps, one would think of it as a gesture of respect – but it was only in the loosest and most strained sense ‘restitutive.’ Second, if I wrong you, the fact of your loss may not be what, morally speaking, counts. What may count is the violation of a right that you enjoy, rather than the loss of the thing that you enjoy a right to: I can hardly become innocent of taking your car for a day, as long as I leave a cheque in your garage for a day’s car rental – I have violated a property right. Even without invoking the realm of rights, there is still the matter of respect, mentioned above, that may warrant apology, over and above restitution. Moreover, the magnitude of the wrong that I do to you, my victim, is not properly measured in terms of your own subjective loss. I may have killed a special plant that you had adopted as a sign of your survival from illness, a plant that subsequently died in your garden after seeding itself in mine; it is a huge subjective loss to you, but not a wrong on my part, because to me it was just a weed. Whatever penalty or guilt (if any) I should suffer (for inconsiderateness?) bears no relation at all to the seriousness of the loss that you have suffered. Alternatively, the loss that you suffer may be quite insignificant in comparison with some other element, such as (for example) a breach of trust: you may entrust me to pick up your mail when you are away, and I may steam it open and read it, without however deriving any further advantage from what I find out or causing any measurable kind of loss to you. But I have still seriously offended by defecting from the norms of neighbourliness or friendship. Third, the loss that I cause you may be made up adequately, even generously, by someone else, without my liability being diminished. I may, for example, carelessly destroy some aging run-of-the-mill piece of kitchen equipment of yours, but immediately my very kind friend, hoping to get me off the hook, gives you a brand new top-of-the-line replacement. Or we may contrive cases in which the loss happens (as it turns out) to make you better off.27 The fact that you are no worse off, are in fact much better off, has absolutely no effect, however, on whatever it is that I owe you. So even in clear cases, in which intuition tells us unmistakably that an offender must make something up to a victim, it is still not clear that it is (always) a loss that it is to be restituted, or that what the

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offender owes is to be measured in terms of what the victim has lost. Questions of the kind that have been raised above crowd in when one reads proposals to make restitution the basic paradigm of justice:28 the project of making up the loss to the victim seems to leave out far too many of the things that we want the justice process to accomplish. For in some cases the loss is uncompensable, and in others compensation is really not the point. Some may think that the above makes too much of the issue of symmetry. If Aristotelian corrective justice and tort law provide inappropriately strict models, let us accept that the giving-back of definite things is restitutive. A more important consideration is that, even if we take this as a reasonably clear case, it does not give us a comprehensive enough model. For it depends on the continuity of A (the expropriator), x (the thing taken), and B (the victim); and in the core real-world cases, one or more of these continuities is generally lacking. Of these, the first, interestingly, may be the least problematic, at first sight at least. This is because the offences involved typically arise from acts performed by – or on behalf of, or at least with the knowledge of – institutions such as states, and states claim to be continuous entities in time.29 Of course, there are ancient problems, discussed by Aristotle, about the effects of regime-change: when the regime changes, is the state the same state – and are revolutionary governments responsible for the obligations of the old regime? As Aristotle seems to allow in his treatment of this matter, there may be overriding reasons to hold states responsible for their debts whatever the truth about the metaphysical question of their identity.30 This may, it is true, be too quick. We may decide either that a state is a continuous entity, or else that there are good reasons to treat it as one, but still face questions about the allocation of costs. If a state is made to bear the cost of righting some past wrong, the cost actually falls, of course, to its present (or future) taxpayers, all of whom may individually stand in quite different relations to the past wrong. And it would not help much to collectivize the problem, and to declare the whole (majority) community responsible; for additional steps have to be taken before we can translate even a good case for collective responsibility into a case for holding individual members of the collective responsible.31 Moreover, there is still the problem that the liability of some people (among the majority) will certainly fail to take into account individual and non-group-based disadvantages that have diminished their well-being. If that were a strictly random factor it could be ignored: but in fact it is likely to bear more heavily against those who,

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lacking resources, are in general more likely to be vulnerable to individualized disadvantages, i.e. the less well-off. But even given all those considerations, surely it makes sense in the end to hold states responsible, because exactly the same problems arise in the case of clear state obligations, such as treaty obligations, fulfilling which might well also have a differential impact on a state’s citizens (those who live in disputed territories, those who work in particular economic sectors, those of conscriptable age, and so on). So let us take the continuity of A as sufficiently given. As for B, the recipient: in the worst case, there may be no survivor. It was an especially poignant fact about Ishi that he was the last surviving member of the Yahi people, and there was therefore no extant group to whom the Smithsonian could return his remains. (The problem was solved by the willingness of a related people to receive them.) Short of that extreme case, the obvious issue is the intergenerational one. A wrong was done to an ancestor of B in the Second World War, in the nineteenth century, in the seventeenth century, or continuously over a long period of time; or, a promise was made to an ancestor of B, but was never fulfilled. Does B inherit? There is nothing original in the thought that B ‘inherits’ only if the effects of the original wrong continue to affect B’s life – if, because of the long-term effects of deprivation and marginalization, B has not recovered from the original wrong. Among the well off and (relatively) undeprived, historical claims are taken much more lightly. A Canadian institution, King’s College in Halifax, Nova Scotia, has an arcane but technically arguable legal case against the former King’s College in New York City, long since renamed Columbia University; it is a long-standing joke of a pleasantly academic kind, because it is ludicrous to suppose that Columbia University should be compelled to hand over its real estate holdings to a small Canadian college. But that is because King’s College in Halifax, although very much poorer than Columbia University, nevertheless belongs within the privileged 2 per cent of the world that enjoys such things as very good advanced education. If its teachers and students had the life chances of, say, the poor of Mozambique, it would be very much harder to treat their case as an academic pleasantry. So if we give weight to B’s present circumstances, that of course raises the question of how much weight is being given to their inheritance of a debt, and how much to just considerations about their present need. It is hard to tell, of course. But surely intuition suggests that restitutive claims would be very much less compelling in a distributively more just world.

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It is in relation to x, the thing taken, that the most important considerations come into play. Sometimes, there is no possibility of returning the original object under any description, because it may have vanished (for example, through soil erosion), or have become unreturnable (for example, downtown Manhattan); or of course there may have been no object at all, because the original loss was intangible – loss of opportunity, the loss of the company of family members, the loss of dignity, and so on. Then substitutions must be made. Here there have been discussions, often of a quite technical kind, among theorists of private law.32 Some of the measurement difficulties that occur here may not be so troublesome, it is true, in the case of restitution: since restitution is generally accomplished (or at least preceded) by negotiation rather than adjudication, the parties concerned can agree on reasonable settlements, as long as their bargaining power is roughly equal.33 And we can accept A. John Simmons’s point that there is nothing wrong in supposing that there can be valid rights even when it is not yet clear what there is a right to.34 But another kind of difficulty arises, in that two evidently competing aims come into play, aims which point in diverging directions. When a physical object is returned – disregarding special difficulties such as those raised above – what one party gets, the other loses: Britain would lose, Greece would gain, the Elgin (Parthenon) Marbles; but when a substitution is made, that symmetry disappears. The object may be to give to the victims an amount of compensation that actually matches their loss; or it may be to impose on the state a burden whose size reflects the seriousness of its intention to ‘make good.’ No one maintains that the losses suffered in the Holocaust can be given any monetary equivalent; but the payments made by the former Federal German Republic to the state of Israel were substantial enough to reflect a serious intention.35 No one pretends that ten or twenty thousand dollars represents even an approximate guess at the losses suffered by Japanese-Americans and Japanese-Canadians who were interned in the Second World War (how could it?): but that sum, multiplied by the number of claimants, may be large enough to show that the states in question acknowledged responsibility for an error of judgment, especially important because coloured by racism. This consideration flies in the face of the ‘restitutive paradigm,’ according to which the burden on the offender is an entirely irrelevant matter, for in that paradigm the whole weight falls on removing the loss to the victim, regardless of the cost to offenders.36 To test this thought, one might consider the case of countries (such as

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Canada or Australia) that have treated aboriginal populations badly, but which are relatively innocent of more global depredations causing refugee flows. Does it follow that they must – on ‘special ties’ grounds – give distributive priority to aboriginals over refugees, regardless of the refugees’ experiences and circumstances? If not, then clearly we are placing both victim groups on the same justice-based footing, and special ties are not in the picture. But if we claim that aboriginals do after all come first, then in effect we allow such countries to transfer their responsibilities to refugees to countries that are innocent on both counts – countries that did not oppress aboriginals, and whose policies have not contributed to refugee exoduses. That is a morally absurd result, and it is hard to think of a better example of the potentially unfair and exclusive nature of special ties.37 The same holds even if we avoid the issue of historical transmission altogether by conceptualizing B, the recipient, as a continuous collective entity, not as an aggregate of individuals who have inherited claims. Indian land claims in the United States, David Lyons points out, are claims made on behalf of tribes that have subsisted since the beginning of colonial times.38 This, he notes, makes a significant difference to the possibility of compensation, by removing the various logical and empirical puzzles that stand in the way of the ‘inheritance’ model. But it does not automatically dispense with all the considerations of justice that are brought into play by property claims. It means only that there is an entity that could be compensated, just as the continuous existence of the state means that there is an entity that could compensate. To return to the main point: we can imagine a clear case of restitution, but we will find few real examples. In the clear case A returns x to B, x retaining the same meaning, the cancellation of A’s gain corresponding to the restoration of what B lost. This would be the undoing of an injustice. Imagine, however, a case at the other end of the spectrum: an A-surrogate returns an x-surrogate to a B-surrogate. That may be a good thing, for all kinds of possible reasons. But it is entirely implausible to regard it, or to justify it, as a restitutive act; most likely, it will best be described as an act of political symbolism. Is there any point on this spectrum at which we can say that restitution turns into something else? I see no credible way to draw such a line: if anywhere, it would have to be at the exact point at which the clear case (without complications) gives out, for after that point all kinds of other – non-restitutive – considerations begin to crowd in and to govern our judgment.

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V To take stock so far: treaty obligations are an instance of the first and clearest kind of special duty, and repairing breaches of them is not restitutive, even if the breach is ancient: apologies may be called restitutive, but their distinctive point is, exactly, non -restitutive; on the other hand, the return of a thing by the taker to the loser is obviously restitutive, but in real-world cases it too readily becomes complicated by other factors: and finally, what is called ‘compensation’ is often better understood in one of three ways – as a demonstration of the sincerity of an apology, as a response to distributive injustice, or as a form of selfinflicted retribution. This is not a neat picture. But coming to terms with the past has never been the tidiest area of human life, individual or collective. If the above line of argument is true, then obligations termed ‘restitutive’ should not in many cases be seen as examples of special ties arising from historical connections. They should be seen, rather, as local instances of universal requirements of justice, such as, most centrally, the requirement to respond to deprivation and unjustified inequality. That any given society has a primary obligation to respond to the deprivation of its own members, rather than to deprivation as such, does not require a theory of deep historical connection. It is explained by whatever is the best argument for assigning primary responsibilities on a local rather than a universal scale. Although the duty to respond to deprivation is itself morally weighty, that it falls primarily to one body rather than another may be a reason of a quite pragmatic kind. When a phone connection breaks, it is not a morally weighty reason that makes the original caller (rather than the recipient) redial, but just a mutual desire to avoid exchanging busy signals. Likewise, we may attribute ‘collective responsibility’ not on the basis of any deep normative or ontological theory but simply on the basis of who is in the best position to bear the responsibility in question.39 There are at least two important objections to this way of deciding the question. The first is that, in the case of special ties of a relational kind, it is often unconvincing to see such ties as local instances of universal duties. The arguments for localizing the duty are too partial and conditional, it is claimed, for it is simply not reliably enough true that assigning duties on a local basis is the best (most effective or efficient) way of getting them discharged – very wealthy Europeans might be in a better

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position to help very poor Africans than somewhat less poor Africans are.40 Defending the ‘universal obligations’ model, Robert Goodin suggests that we see the local distribution of duties as analogous to the appointment of lifeguards: although we all have a duty to rescue drowning swimmers, chaos would ensue if we all tried to rescue them at once, and so it makes sense to assign the responsibility in order to resolve the coordination problem.41 But as David Miller points out, the analogy fails because lifeguards (unlike local states) are appointed on the basis of special qualifications.42 And surely, casting an eye around the globe, what we see is, by and large, something more like a world in which lifeguarding responsibilities are assigned to non-swimming hydrophobes. (An example better suited to Goodin’s case may be the practice, in airline travel, of assigning to randomly seated passengers the duty to operate the emergency exits.) Criticism of this kind needs to be met in the case of relational ties, that is, ties of regular institutional connection. The force of the criticism is that, starting from universal obligations alone, we would be quite unlikely to design a world in which local obligations are assigned as they are: that may be true even in the case of family ties, surely better than national ties for the assigned-responsibility argument.43 But we do not face the objection in the case of supposed historic ties, that is, a state’s duties to protect people who, for historical reasons, are under its care: for, obviously, it is beside the point to apply the ‘would you have designed it?’ test. We face questions of injustice that can be regarded as simply given and unchosen, and all we want to know is how to assign the duty to respond. That duty is sufficiently explained by the coexistence of a case of severe deprivation and a local institution that has the capacity to respond to it. It is enough that the institution should exist, and the (normative) reasons for its existence do not enter into this question, though they enter into others. A second objection is offered by Simmons. If we take a resolutely universalist stand and regard, for example, aboriginal groups ‘simply as one of a number of disadvantaged groups in our society,’44 to be given their fair share on the basis of whatever theory of justice we hold, we are in effect discounting the ‘particularity’ of aboriginal claims and implicitly defining them as ‘ungrounded emotionalism.’ But, Simmons writes, ‘I do not think most of us regard [aboriginal] demands for control over portions of their historical homelands simply as unmotivated, sentimental nonsense.’45 Above, however, I have tried to make a distinction that avoids what would otherwise be a well-merited objection. If we are

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considering ‘how best to address the injustices’ (to repeat Ivison’s phrase) then surely history matters. It is in terms of remembered history that the groups concerned define their losses, and it simply cannot be that their own definition of loss is irrelevant to the remedy. Taking it into account may require imaginative departures from any mechanical idea of equality as uniformity. But taking account of their definition of loss may or may not require restitution (as opposed to some other appropriate remedy) – that depends on contextual factors; and taking account of their definition of loss does not mean that the reasons for addressing their claims are ‘historical’ in nature or anything other than ‘just’ tout court. And although reference to the past can contribute to just policies in many ways, to suppose that we are ‘bound to make reparation’ (to repeat MacIntyre’s phrase) for the crimes of our nations is no more plausible than supposing that there are crimes committed against our nations for which we are bound to exact revenge – surely a corollary that most would find repellent.

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Conclusion: On Associative Duties

In recent years, the themes discussed in this book have been given a precise focus in the analysis of ‘associative obligation,’ as it has been termed. That term first occurs in Ronald Dworkin’s Law’s Empire, in reference to ‘special responsibilities social practice attaches to membership in some biological or social group, like the responsibilities of family or friends or neighbors.’1 The adjective ‘associative,’ applied sometimes to ‘obligations,’ sometimes to ‘duties,’ sometimes to ‘responsibilities,’ is employed in an important recent debate over the possibility of cosmopolitan ethics. For associative duties (I shall mostly use Scheffler’s noun) are thought to pose a problem for that moral and political view. Cosmopolitans attach no basic moral significance to group memberships, believing that what is of basic significance is the fact of humanity itself, and that any partial obligations that we have must find their place in what is a fundamentally boundaryless picture. They argue, as we saw in chapter 10 above, that we have to be impartial at the second level, that is, in assessing what counts as a good reason, but that at the first or actionguiding level we can perfectly well admit partial attachments, for impartially justified reasons. As Martha Nussbaum writes: ‘Politics, like child care, will be poorly done if each thinks herself equally responsible for all, rather than giving the immediate surroundings special attention and care. To give one’s own sphere special care is justifiable in universalist terms.’2 But this cannot be, associativists argue: for our special relationships within families or friendships or neighbourhoods are constituted by duties – they do not need to acquire moral force from some further external standard of a cosmopolitan kind. So while there may be cosmopolitan duties – and associativists agree that there are – they are neither the basic duties nor the only ones. The cosmopolitan picture leaves out

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of account an important and pervasive source of duty, grounded not in human but in partial memberships: perhaps the source of the very duties that concern most of us most of the time. The associativist view brings us back to exactly the issue that was left hanging at the end of chapter 10. There it was admitted that the impartialist view seemed most vulnerable at what was termed ‘the phenomenological point,’ that is, it seemed to account only awkwardly for the fact that the actual experience of associative duties – whether or not their content may be compatible with impartialism – seems irreducibly partial in its colouring. It is that point that needs attention here, as many sources attest. Susan Mendus, for example, referring to the work of several other scholars, notes the ‘directly motivating or unmediated quality of acts’ done from special relationships, a quality such that ‘no further argument or inference is needed’ – in fact, further argument or inference may entirely undermine the reception of the acts themselves.3 Steven Lukes, commenting on a discussion arising from Martha Nussbaum’s Stoicizing paper, remarks that cosmopolitanism and local allegiance ‘are distinct aspects of the moral life and the second cannot be derived from the first.’4 David Miller, likewise, insists that alongside whatever universal duties we may have there are ‘independent, nonderivative principles with a more restricted scope’ and that ‘our particular identities as members of communities, groups, and associations of various kinds have intrinsic ethical relevance.’5 In particular, Samuel Scheffler, in a book-length discussion that focuses largely on this very topic, draws attention repeatedly to ‘the unmediated moral significance of those special ties which bind members of a community to each other’: again, ‘to attach non-instrumental value to my relationship with a particular person just is, in part, to see that person as a source of special claims in virtue of the relationship between us.’6 What, though, do reducibility and irreducibility, derivability and underivability, mean in this context? It is not always clear exactly what is intended when such terms are used, and sometimes interpretations have to be supplied. Supplying them leads us to some necessary distinctions; and when we make these distinctions and examine alternative versions of the claim, the associativist critique loses much of its force. I One version may be termed ‘the socialization thesis,’ and it relates to the temporal priorities among the duties that we acquire. It amounts to the

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view that associative duties cannot be instances of universal duties for the simple reason that they ‘come first.’ Some of Martha Nussbaum’s critics appear to adopt that view in some form. Michael McConnell writes: ‘One who knows no heroes in his own land will feel nothing but contempt for the naivete of those who honor heroes elsewhere. Before a child can learn to value others he needs to learn to value.’7 While the second sentence is analytically true it does not support the first, because among those whom one first values may be some who are not in one’s own land at all. Nussbaum replies, effectively, that ‘Good fairy tales are rarely about Cambridge, Massachusetts,’8 and that the moral imaginations of children are formed in part not by the local but by the distant, or perhaps more precisely by fables in which the difference between the local and the distant tends to evaporate altogether. (Jeremy Waldron makes much the same point in commenting on a famous passage of Alasdair MacIntyre’s: stressing the importance of roles in making sense of life, MacIntyre refers to the impact on children of stories about wicked stepmothers and wolf-children – stories, Waldron points out, from a variety of spatially and temporally distant cultures.)9 But even if the critics’ view were true, it is hard to know what would follow for ‘reducibility,’ for temporal priority is morally inconsequential. No doubt it is normal to learn the arithmetical tables before we learn more advanced number theory (if we ever do): but that does not mean that the arithmetical tables are irreducible to number theory, for the issue is not about whether A precedes B, but about whether B can logically accommodate and explain A. Closely related to the socialization thesis, often in fact fused with it, is a somewhat different ‘expansion thesis,’ according to which relatively large identifications are necessarily arrived at by expanding relatively small ones. (The socialization thesis claims only that A comes before B, the expansion thesis claims that B actually is a larger form of A.) This idea, with deep roots in conservative thought, is clearly one that many people find intuitively plausible. But the movement ‘from part to whole’ (as Sissela Bok puts it, quoting Alexander Pope)10 seems exceedingly unreliable, particularly perhaps when we reach the level of the nation. English soccer fans shout down the French national anthem. Admirers of Napoleon do not observe Wellington’s birthday. Celebrants of the Battle of the Boyne do not mourn the outcome of the Battle of the Field of Blackbirds. The most obvious anecdotal evidence suggests that patriotism is more likely to be morally absorbing than morally expansive. Moreover, the thesis seems (as we used to say) insufficiently dialectical. If

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there are consequential links between small and large identities, it would seem odd if they only ever ran one way, large ones never reacting upon small ones. Bergson, as we saw, held a view of the nation-state that seems relevant here. Tribes or perhaps small nations, to be sure, draw in part (he believed) from the idea of the family: but the large modern nation can establish its claims only by representing itself as a proxy for humanity in general; and in doing so it tends to permeate itself, and its components, with ideas of equality that colour the meaning of citizenship. The nation-state, then, may have to be understood not as the product of an expansive process, but as (in part) a top-down construct in which, at successive levels, smaller groups are interpreted and shaped as proxies for larger ones. This may seem simply to substitute one more or less a priori narrative for another. But in one particularly important case, Norman Geras has gone to the trouble to assemble evidence for the view that the duty to humanity can have unmediated, not derivative, force. The expansion thesis is asserted with great confidence by Richard Rorty, for whom (as we saw in chapter 10) the idea of ‘humanity’ can arise only by way of extending or enlarging previous sentiments of partial loyalty. But in the case of European rescuers of Jews from Nazi genocide, Geras shows that this was simply not so. Again and again, rescuers explain their actions on the basis of humanitarian, not neighbourly, considerations; and on the other side of the coin, neighbourly considerations were plainly no barrier to collaboration in genocide. Strangers were sometimes rescued ‘because they were human,’ and neighbours were regularly abandoned despite familiarity.11 II Much or most of moral and political life is taken up with local and even unique contexts, as people struggle with the complex and unchosen circumstances that force choices upon them. Those circumstances and choices are not dictated by a moral theory of any kind, nor are they predictable starting from the claims of moral theory alone. The irreducibility of the partial to the universal may mean that, starting with universal principles alone, one would not end up with the array of associative duties that we have, or that, after reflection, we believe that we have. I think that is true: but once again, the question is, what follows from it? Associativists need not of course deny that it may sometimes be right that universal principles should fail to validate existing associative duties,

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that is, in cases in which those supposed duties are morally wrong. Associativists are not after all committed to supporting every extant supposed associative duty, such as a supposed duty to keep our association racially pure. Scheffler, for example, makes it perfectly clear that associative duties are subject to ‘constraint’ by larger duties: we shall consider later what to make of this, and to avoid anticipating the argument there let us confine this section to a case that does not involve any such gross violation – a case in which at least a potentially valid associative duty could not have been generated out of cosmopolitan principle alone. There may be cases in which partial associations pursue goods which in the light of their own situation and experience are, at least arguably, validly pursued, though which would be viewed otherwise from an entirely external standpoint. Then, we might say, those pursuits are in an important sense underivable from that external standpoint. Let me use a simple example. The province of Ontario in Canada allows taxpayers to direct the educational portion of their property taxes to the support of their local Catholic school board, as opposed to the (secular) public board. Other religious denominations do not have that privilege. The arrangement dates back to a time when Catholics were a very substantial minority in that part of Canada, and when equitable Catholic/Protestant relations were vital to the survival of Canada as a national political entity. Not surprisingly, with the passage of time the arrangement has become vulnerable to questioning, particularly by religious minorities that do not benefit from it, and in response the United Nations Human Rights Committee, in a 1999 decision, condemned Ontario’s policy as discriminatory.12 How might a defender of Ontario’s policy respond? (Here I am not concerned with whether or not it is right to defend it: only with the grounds on which it might be defensible.) The uncompromisingly associativist ‘This is how we do things here’ would hardly be compelling (any more than in the obviously odious racist community case): but that is neither the only nor even the natural defence. The natural defence would be in terms of honouring past arrangements, especially arrangements connected with a political community’s history, and around which, moreover, expectations had grown up over time. It might be supplemented by considerations about the asymmetry of Catholic and Protestant views of the educational environment, the former requiring the institutional reinforcement of belief, the latter not – the perfected Protestant school, one might say, riffing on Marx’s On the Jewish Question,

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is a secular school. Consider now the obvious replies to those two responses. The first would invite general debate about the relevance of old arrangements in new circumstances: true, promises should be kept – but forever? The second would accept the point that Catholics may have more demanding requirements for schooling than Protestants typically do, but would generalize the point: what about Jews or Muslims, or others, such as evangelical Protestants, in whose favour exactly the same argument may work? Now I see nothing in this imaginary debate that is not encompassed by the oldest and broadest principles of universal ethics. On the one side, pacta sunt servanda; on the other, ‘treat like cases alike.’ It is perfectly true that an ideal observer, beginning with those and other general maxims of justice, would not have foreseen the dilemmas produced by the Ontario school tax issue: but why does that matter? A commitment to general principles does not imply foreknowledge of the situations to which they will apply or of the balanced solutions that difficult cases may lead to in light of local knowledge. So what we might correctly regard as the ‘nondeducibility’ of local duties from universal ones does not show the irreducibility of the former to the latter, for establishing the validity of the former will entail critical discussion that necessarily draws the latter in. So the sense in which cases of this kind may display ‘irreducibility’ seems morally inconsequential. III But this leads us directly to another version of the claim: perhaps the irreducibility that matters is that of the authority of duties13 as opposed to that of their content. Associative duties call upon us authoritatively, and in a way that does not depend on their being somehow licensed to do so by cosmopolitan morality. Scheffler believes that the authority of associative duties creates a dilemma for theorists such as Martha Nussbaum. According to Nussbaum, as we have seen, it is better for all humans if we give more weight to the needs of our own children than to other people’s, and to the needs of citizens than to foreigners’ needs. Things work better that way, so cosmopolitanism accommodates local duties. (Of course, this doesn’t mean we should then give no weight to other people’s children, or to foreigners – it just means that equal worth doesn’t require equal attention, because there is an obvious distinction between the level of basic justification on the one hand and the operational level on the other.)

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But according to Scheffler, Nussbaum faces a dilemma.14 If she is to support giving special weight to (e.g.) one’s own children, she must choose between (1) claiming that one’s own children are of greater value than other people’s, and (2) claiming that one’s preference for one’s own is grounded in overall human benefit. For different reasons, neither fork is acceptable. (1) is clearly unacceptable because it denies the premise of human equality. (2) is unacceptable because it misrepresents the nature of our relationship to our children (etc.). This is because we don’t first have a relationship with a child (spouse, sibling, friend, etc.) and then ground it in an obligation of some general kind: the relationship itself contains, is constituted by, obligations. It doesn’t need to import obligations from elsewhere, because obligations are part of what it is. The cosmopolitan view that it depends on justification in universal terms is false. Can Scheffler’s objection be met? It is of course entirely implausible to think that I owe things to my children because my giving them those things is good for humanity. The universalist doesn’t, however, confront exactly that gross absurdity, for we must distinguish, first of all, between the justification of acts and the justification of general practices (e.g. between justifying what I do for my son, and justifying ‘what parents should do for children’). The effect of a practice-level justification is to relieve the acts which it covers of their immediate justificatory burden (e.g. if I have reason to think that parents should give preference to their children, that means that I no longer have to justify the preference I give to my own children). As far as it goes, this may seem only to move the argument one step back: for one could simply object that all the reasons for thinking that one’s obligation to one’s son needs justification arise again in connection with thinking that parents’ obligations to children need it. But insisting that the justification be a practice-level one opens up a new question. What is it, exactly, that practice-level justification accomplishes? I want to say that, in the case of extending benefits to ‘associates’ (Scheffler’s useful generic term), what is relieved is the burden of justifying the exclusion of non-associates.15 It should be put in this way in order to make it clear that – as was argued in chapter 10 above – we do not need to justify the giving of benefits to people, because there is nothing wrong with it. It is the non-giving of benefits to other people that, potentially, needs to be justified. Is this just a verbal quibble? Could we not say that the issue is raised by ‘giving to some but not to others,’ and that distinguishing between (a) giving to some and (b) not giving to others is artificial? There is a twofold answer to this. First, there is nothing inher-

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ently wrong with giving to some but not to others, and if an instance of that is wrong, that is because of some additional feature. For example, suppose you give your last dollar to beggar A, so that when beggar B approaches you there is nothing left for him: that doesn’t mean it was wrong of you to give money to beggar A. The unequal treatment of A and B is due to luck. It might be a different matter if, for example, the unequal treatment of A and B arose from some institutional arrangement. So ‘giving to some but not to others’ is as it stands a morally neutral phenomenon that acquires moral significance, if it does, only from some additional element. The UNCHR was quite right, in my view, to dismiss an application that sought to deprive Ontario Catholic Schools of their tax provisions on the grounds (effectively) that they should not profit when others did not. The bare fact that B does not benefit does not give grounds for depriving A of the benefit. To be sure, the Commission based its decision on the point that the author of the complaint did not suffer as a result of the situation that he complained about, and hence had no standing, his rights not having been violated: but quite aside from a strictly rights-based argument, there is no conceivable moral argument that makes the bare fact of difference a ground for complaint. Second, we can see the importance of the distinction at issue if we look at the disanalogy, in terms of justificatory requirements, between conferring benefits and imposing costs. Suppose I impose some sort of loss on person A, not on person B. Obviously I have to justify to A what I am doing to her. The question of justifying to B the non-imposing of costs on her doesn’t arise. There is a parallel in the theory of punishment. James Rachels argues that if someone has done me a favour then he deserves to receive a favour from me in preference to some other claimant; and then he argues, by analogy, that if someone has offended then they deserve to receive punishment.16 But the analogy fails, because what the first case establishes is only the justification of a negative act (i.e. not giving someone something), whereas the second case requires the justification of a positive act (i.e. punishing). The first case only shows, by analogy, that it is wrong to punish the innocent, it doesn’t show that it is right to punish the guilty. The point is, then, that whatever it is that justifies the non-giving of benefits to non-associates leaves the reasons for the giving of benefits to associates entirely intact. It simply relieves those reasons (whatever they are) of a potential justificatory barrier. So the second fork of Nussbaum’s dilemma is removed, just because the relevant justifications are not justifi-

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cations for giving (but for excluding). An example: we give birthday presents to our own (and friends’) children. That practice, I assume, survives appropriate tests of global justifiability. But the fact that one’s reasons for giving one’s children presents survive this test clearly doesn’t mean that one’s reasons for giving them presents must be reducible to/ derived from global principles: it means that those reasons (whatever they are) escape scrutiny because the non-recipients have no rights in the matter. Gross nepotism, on the other hand, would face (and fail) scrutiny, because it causes harm to others who have legitimate expectations of fairness. At least, it would in societies such as ours, whereas similar favouritism in more strongly kin-based societies might be viewed more as present-giving: which leads us to acknowledge the interpenetration of associative duties and larger contexts of social principle. IV But here we may seem to be at no great distance from Scheffler’s own view that associative duties are subject to a constraining or filtering process in light of moral universalism.17 Starting from a universalist position, one might say, we work our way down until we arrive at local duties that survive all tests and so can be left alone. Starting from an associative position, we go where our local duties take us until we hit universalist constraints, and then we back off. What is the difference, one might ask? Perhaps there is none. But before we can answer the question, we have to examine what is involved in the idea of constraint. First, is the constraint unilateral or mutual? Is it only the case that universal duties constrain associative ones, or is the constraint two-way? Surely it can’t be the case that constraint is only unilateral. If that were so, we would arrive at a situation discussed by Niko Kolodny, in which associativist solutions would instantly be trumped and nullified by universalist ones.18 For example, suppose some distributive principle (equality, say) were brought to bear within an association, resulting in a reallocation of goods among its members; that reallocation would then at once be nullified by a requirement to apply the principle globally: those who received things by virtue of applying the principle at the associational level would then lose them by virtue of applying the principle at the global level, so the associational-level distribution would quite simply be pointless. But that cannot be what associativism intends. We have to give weight, surely, not only to the element of ‘constraint’ but

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also to the element of ‘priority.’19 And that, as far as I can see, must mean that whatever supra-associational distributive principle we settle on must take into account the claims of association. Kolodny’s critique overlooks this, in assuming that the choice of distributive principle is an entirely independent matter, unaffected by the claims of associativism itself. Now of course we may imagine that associativism would make only those claims that a just universalism would accept. But that would be an utterly imaginary solution to the problem. The problem arises because of a pervasive sense, among people with many different attitudes to national and global responsibility, that there is a conflict between what is owed to associates and what is owed to strangers. So the question becomes one about how to resolve that conflict. It might be thought that here all the resources of moral argument should be brought into play, with their built-in assumption that reasons are ultimately public in character and that the dignity of the local is secure only to the extent that it can find a public footing for its claims. That would amount to a universalist victory. But at this point in the argument, the victory would be too cheap, in failing to consider the view that there may be no single public standpoint from which conflicting claims may be assessed. V The claim that partial and universal duties are of different kinds may amount to the view that they are contained in different moral languages, as it were, each speaking to a different complex of human needs, generating ‘a deep conflict within contemporary moral life.’20 Here we arrive at another, final, idea of irreducibility. The partial would be ‘irreducible’ to the universal in the sense that its evaluative language could not successfully be translated into universal terms. Now if this were so, then two consequences would follow. First, the evaluation of instantiating cases of associative relations would have to be conducted in the language of that relationship itself, not in some allegedly overarching universal terms. The evaluation of ‘fraternity,’ for example, would have to be conducted in a moral idiom peculiar to the features of brotherhood, and not in broader terms. But is this true? Suppose we compare a productive and amiable case of brotherhood, that of George and Ira Gershwin, for example, with an obviously defective case: that of Cain and Abel, let us say. We would no doubt use words like respect, affection, partnership, and so on on the one hand, and words like envy, resentment, coldness, and so on on the other. These

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do not look like terms specific to a particular context, or words that could not be given an indefinitely broad application. ‘Envy’ and (to a lesser extent) ‘resentment’ are extensively studied in Rawls’s Theory of Justice, for example. Now one might object that this sketch is insufficiently fine-grained. To capture the full moral complexity of either case of brotherhood, for example, we would have to enter deeply into personal histories and into family patterns of their places and times. But the associativist would need to be wary about this move, because the more we find moral significance in uniqueness the less we are entitled to make generalizations about categories of relations at all. If the relevant moral account of the Gershwin brothers is entirely local, then associativism will not license any talk of ‘brotherhood’ in general, let alone of ‘associative relations’ embracing not only brotherhood but also friendship, collegiality, and nationality. On the other hand, to the extent that we can use terms of more general reference in assessing cases of brotherhood (etc.), the irreducibility claim (in this form, at least) tends correspondingly to evaporate as discussion merges with the language of general moral justification. Second, if partial and universal languages were irreducibly different, collisions between the two would have to have a particular kind of outcome. One could win, or there could be a trade-off – that is all. I am not sure if this is what Scheffler means when he speaks of cosmopolitan morality as ‘constraining’ associative duties. Does this mean that cosmopolitan morality may impose defeats by limiting the reach of associative duties – or does it mean that it modifies what they claim? If the former, then associative duties are in the position of accepting a limit to claims that are from its point of view entirely valid: if the latter, then the validity of the claims is not just defeated or overridden, but morally undermined. If we return to the nepotism case touched on above, then surely the latter interpretation is the right one. Suppose, having a valuable job at my disposal, I propose to give it to my son rather than to a betterqualified applicant: on the model of ‘defeat,’ I would regard that proposal as a morally worthy one – even one enjoying a degree of ‘authority’ – even though for one reason or another I allow it to be overridden by a broader principle. On the ‘modification’ model, I come to see that family obligations, properly understood, do not include conferring advantages on one’s own children at the expense of basic procedural fairness. There is no moral conflict of the kind that competing paradigms (of the Antigone variety, to quote a classic case) would require. But the modification model better represents experience, for if it did not

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then all constraints whatsoever on promoting our associates’ welfare would have the character of moral defeats, and surely we don’t feel it’s a moral (as opposed to a personal) defeat whenever we’re prevented from helping our own come hell or high water. Not everything we want to do for associates is a pro tanto obligation subject only to overriding. Unless we assume, again, that associative ties have a sort of built-in sensor that somehow enables them to avoid collisions with larger duties, it must be the case that they are subject to modification over time and evolve in a collaborative rather than in an external relationship with duties of other kinds. VI The question of associative ties must raise at some point the large issue of the scope of morality and its relation to affective caring. If the associativists make a good phenomenological point in casting doubt on accounts of close relationships that make them depend on universal duties, they may be open to a stronger version of the same objection themselves: perhaps associative ties do not depend on any sort of duty at all. Perhaps, at least at their core, they are ties of affection of a non-moral kind. To be sure, they are very likely to raise moral issues (when they conflict with each other, or with general duties); and when affection fails or just lapses we sometimes want duty as a proxy, at least in the case of relations in which one party is inescapably dependent. But are the ties basically moral ones – are they properly termed associative duties? Susan Wolf maintains that impartiality is the indispensable heart of morality; that it should not take an extreme or literal form, requiring the even-handed treatment of all; that, understood as a ‘moderate’ view that one should act on standards that one would expect others to uphold, it is compatible with partial associative ties; but that, all the same, one may face ‘radical choices’ between helping those close to us and performing our general duties. When this happens, Wolf believes, we can best describe the situation not as a conflict within morality but as a conflict between morality and love. A parent, for example, may face a choice between hiding her son and turning him in for a serious crime; there can be no doubt (as Wolf constructs the situation) that it is her moral duty to turn him in; but we might not think ill of her for refusing to do it, all the same. The lesson that we are to draw is that we should not expect morality to govern all relationships. ‘There are so many reasons to love your children and even to help out your neighbours. Some reasons are

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grounded in natural sympathy; others are grounded in self-interest ... There is no need for morality to tell you to love your children and have friends.’21 On the other hand, of course, as we have seen in some of the chapters above, there are other views which set out to draw morality and love together, as modes of relating which express valuing of and attentiveness to the other. Such views would, presumably, be unable to adopt Wolf’s solution of the radical choice dilemma, for they would be unable to regard the relation among the demands in question as an external one. In between, we may place what we may term dynamic or developmental models which place caring and duty on a spectrum. Such a view is defended, for example, by Susan Mendus in Impartiality in Moral and Political Thought. While we may have nothing persuasive to say to the utterly indifferent person, we find a moral toehold in a person’s attachment to another person or project. Provided that the attachment meets certain conditions – it is not entirely capricious, for example, or (like Titania’s passion in Midsummer Night’s Dream) potion-induced – we can hope to show a person that other-regarding moral principles grow out of or are continuous with what they value. We can defend an impartialist view to people with varied commitments ‘by seeing impartialism as deriving both its moral and its motivational force from partial concerns themselves.’22 In this way we avoid confronting agents with moral claims that are entirely at odds with the valued projects that actually motivate their lives. Such a view, while not perhaps insisting on actual identity between partial attachment and impartial duty, at least insists on the continuity between the two. Several of the chapters above would support such a position or at least exemplify its claims. In Locke’s argument for toleration, as we saw, there is an unmarked transition between concern for co-religionists elsewhere (concern for Huguenots in France, say) and a cosmopolitan theory not grounded in any particular concern at all, but defended in terms of general rationality. From a certain point of view (such as a Kantian one, notably) one might criticize Locke here for failing to make distinctions. But in actual moral practice, surely it is very common to cross the hypothetical-categorical divide. If someone is indifferent to the deportation of fellow-citizens to states that practise torture, for example, what is more natural than to say to them ‘But suppose your son were deported to Syria ...’? Following Mendus, and Bernard Williams,23 we try to find a toehold in attachments that they are known to have. I think it is of subsidiary importance here whether or not we should call those attach-

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ments ‘moral’ ones. In a somewhat different way, we see a strongly related issue in Rousseau and Wollstonecraft. Rousseau, notoriously, wants to benefit from both partialist and universalist arguments, representing the state both as a patriotic and exclusive entity employing the criteria of shared goods, and at the same time as a fragment of cosmopolis embodying (on a restricted scale) universal moral imperatives. And he can do so just because what I see as mine is, as it were, highly labile: from a certain standpoint (or in a certain mood) I can see the needs of our association as my own needs, incorporating others within my field of personal identification – while from another standpoint (or in a certain other, more introverted, mood) I see the needs of our association as external imperatives that I win moral credit by bowing to. There is no consistent line between attachment and obligation. Likewise, Wollstonecraft wants in effect to exploit the areas of overlap between civic attachment and human obligation. She wants to develop a political appeal that attracts both patriots and humanitarians, and over a certain range, as we have seen, that is a far from hopeless project, even if, once we get to a certain point, we have to make choices. So much of the above would make one sympathetic to the aims of Mendus’s book. But I am going to stop short of endorsing her or any position, for several reasons. The first is that the general issue here obviously turns in part on the definition of morality, and this book has not prepared the way to say anything convincing on that topic, or introduced the inventory of ideas that would make a discussion of it useful. The second arises from the miscellaneousness of associations and also of personal attitudes within them: not only are families different from trade unions, but one family (or as Tolstoy’s famous opening line would have it, one unhappy family) is unlike another, and the attempt to draw a line between the moral and non-moral in associative life in general – even if we had an agreed formula for drawing it – should not be casually undertaken. But the third reason is that the conclusion that I want to offer does not depend on answering that question, however important it may be to answer it for other purposes. VII My conclusion is that we may think of levels of attachment or obligation in terms of a common structure. They are constituted by the waiving of certain entitlements in the context of certain expectations. Levels are heterogeneous just because entitlements and expectations are heteroge-

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neous. Whether or not these heterogeneous elements – the things we are entitled to, the goods we expect – can be reduced to some single value is a basic question of ethics, not to be tackled here. But what these waivings have in common – whether or not it is what they can be said to be based on – is the reduction of one kind of vulnerability at the expense of enhancing another. The starting-point for this line of argument is an important perception of Robert Goodin’s about national and cosmopolitan obligations. It is commonly supposed, Goodin points out, that we owe more to conationals than to foreigners, and in some respects we do: but what may be overlooked is that in some respects we owe them less, for their status as co-nationals allows us to override their negative liberties in ways that we cannot do in the case of foreigners.24 In the case of foreigners, for example, we cannot expropriate their holdings (even with compensation), conscript or tax them, divert their rivers, pollute their air with impunity, excuse ourselves from legal liabilities at their expense, and so on. Of course, in some respects one’s first thought is right too: we must treat co-nationals better. We must protect them from attack, afford them political rights, allow them to use their professional qualifications, allow them to own property. Their positive entitlements (as opposed to their negative liberties) get more respect from us. Surely it makes sense to suppose that the removal or qualification of negative liberties is related in some way to the conferring of more positive entitlements. Now Goodin warns us against one immediately appealing way of making sense of this, that is, in terms of an arrangement for mutual benefit. We might say that, within a national association, you and I are in a give-and-take relationship, contributing something to each other’s well-being and expecting some degree of self-denial in return. There are several reasons for rejecting this view, however, among them the fact that some (the disabled) may benefit without contributing, the fact that others (guestworkers) may contribute without benefiting, and the fact that networks of mutual benefit do not correspond well with national boundaries. But on the view proposed here, what entitles members to consideration is not the making of a contribution but the waiving of a right. (It is what we may term a ‘risk taken’ argument, as opposed to a ‘benefits received’ argument.) That waiving makes moral and human sense only in the context of an implied trust that the liabilities flowing from a scheme of legal regulation and public policy will tend on balance to improve rather than to diminish one’s life-chances. Anyone subjected to such a scheme is entitled to that expectation, whether they make a net

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contribution or not, and no one not subjected to the scheme is entitled to it, whether they contribute or not to the well-being of the scheme’s members. What counts is not (actual) productive contribution but the (notional) waiving of a right. (I hope I need not give more stress to its purely notional character. There need be no act of waiving. What is important is that within a relationship one party should act to another as though a right had been waived, and as though that putative waiving were consequential.) There is of course a locus classicus for this general view in the political thought of Locke, whose view of political society is in an important sense built upon the waiving of rights, in several ways. Most obviously, there is the formal and familiar apparatus set out in the Second Treatise, in which natural individuals are said to enjoy natural rights and to surrender these, in part, in return for a relationship of ‘trust’ which empowers a government to act on their behalf. In particular, we waive our original right to interpret, implement, and enforce just claims on our own behalf. We may see this as a kind of background metaphor for the more complex and subtle waivings that the Letters on Toleration display. We must waive any claim to impose on politics the shape dictated by our strong religious beliefs, aiming at a conception of ‘civil power’ that could in principle be accepted by ‘Turks’ and ‘pagans.’ We must impose on ourselves a cosmopolitan constraint, despite national partiality. We have to accept constitutional impartiality as a brake on natural partisanship. We must resign ourselves to a non-monopolistic politics, in which, we know in advance, we will sometimes fail in our efforts to shape public outcomes, as the price of establishing a common life. To be sure, some of the things that we concede are not rights: there is no right (for example) to exercise uninhibited partisanship or to get one’s way consistently. But all of these concessions flow from the waiving of the undoubted natural right to judge for oneself, for it is only on that basis that a set of institutions can acquire the authority to require any of these concessions from us. One important contrast here is with Rousseau, or with one of Rousseau’s themes, perhaps the dominant one. For him, to enter a state is to enter a moral universe for the first time, by taking on the conditions that can bring one to enjoy ‘moral freedom,’ or obedience to self-prescribed law. It is not, as in Locke, to resign a moral property that one antecedently had. The idea of waiving implies, of course, that there is such a moral property, and thus that the equation of person with citizen cannot be complete. It implies, to put it differently, a cosmopolitan reservation that

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frames and limits political claims. Of course, the usual qualifications arise with respect to any cut-and-dried statement about Rousseau, and we must balance the parts of the doctrine that tell us that individuals derive all their moral weight from group membership against the parts that tell us – in a more conventionally contractualist spirit – that membership serves, instrumentally, to make justice ‘mutual.’ A classic article by Frederick Barnard explored the tensions here.25 On the one hand, Rousseau offers a picture of unconditional identification (Barnard terms it ‘patriotism’) which renders reasons for loyalty out of place, while on the other he offers a different picture (Barnard terms it ‘citizenship’) in which obligation is rationally measured and justified. It is I think right to say that no resolution is offered. But as was argued above in chapter 2, the strong claims that Rousseau makes about the self-governing process depend on accepting some version of the former picture, one of radical identification with compatriots. A comparison with Mill is perhaps still more telling, since his political theory evidently shared so many objectives with Locke’s. Even when we have made generous allowances for differences in aim and context, substantial similarities remain, in particular, perhaps, a sense that states are constrained by a specific moral framework (a ‘political morality,’ in Mill’s phrase), that the good that they could potentially do is limited by their proper jurisdiction – a belief that, significantly, their most prominent contemporary critics found so astonishing.26 But a wedge is driven deeply between the two theories by Mill’s adoption of what we may term a non-distributive or collectivist conception of humanity. For Locke, ‘humanity’ is a personal status (i.e. a matter of being human) from which obligations are said to flow. For Mill, by way of the ‘religion of humanity,’ it becomes a transgenerational collective with interests that seem to limit personal entitlements in a worryingly open-ended way. These worries are somewhat eased, to be sure, by Mill’s endorsements of ‘individuality’ as a value, but – or so it was argued above – his theory may not adequately explain why individuality, in the relevant sense, is a strong enough value, unless we covertly revert to a sort of implicit contractualism that gives individuals notional control over what they do and do not concede in the name of establishing overarching and compulsory political arrangements. Particularly in the essay on ‘Civilization,’ we end up with a narrative about the trading of independence for security – of a life based on ‘[one’s] own exertions’ for one based on ‘general arrangements’27 – that recalls the familiar narrative of the Second Treatise, or of Rousseau on a contractualist day.

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Contractualism, as a moral theory, may not, it is true, do much better than Mill here. Suppose we take the criterion of reasonable rejectability, as Scanlon proposes; we will consent to the demands of others only if they are grounded in reasons that are stronger than alternative reasons that we might advance. As Elizabeth Ashford has shown,28 that proposal turns out to be very demanding indeed, especially when globally applied: no reason that we might give for refusing aid to those in desperate circumstances could be stronger than the reasons that those in desperate circumstances could give for demanding aid. Scanlonian contractualism, then, might be effectively indistinguishable from a Millian religion of humanity, in that it puts no limits at all on what we might owe to others, despite the deeply individualistic cast of its argument. So considerations of that kind would give us a good reason not to make contractualism morally basic. The version defended here, however, is clearly not morally basic. It is a device for introducing the idea of waiving prior entitlements, and obviously assumes the existence of prior moral properties. Just what those are remains unexplored in this discussion. But for the device to mean anything, there has to be some significance in the bare fact of human membership, and in the relations among strangers. That significance is conveniently described in the traditional language of rights, but could be conveyed equally well in a variety of other languages, differences among which would of course need exploring in an inquiry at the foundational level. But at the level of this inquiry, all we need is a background recognition of some valued status, as a way of making sense of the value of associations and of the relations among them. VIII Political relations may of course seem particularly or even peculiarly apt, if any are apt, to the model offered here, given a familiar picture of the polity as something constructed by the surrender of rights. That connection may instantly re-invite fears about atomism and un-sociological abstraction. Above, though, I sought to defend the Lockean view from the atomist taint, by pointing to some of the ways in which his theory is strongly coloured by both empirical and normative assertions about the basic importance of groups. But I now want to take a further step, and to deny that the model of ‘waiving,’ however exactly we fix its meaning in terms of Locke’s politics, is at all out of place in the account of ‘neighbourhood’ or sub-political or even personal relations. It is of

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course hardly news that people in close relationships set rights aside. John Hardwig, for example, once claimed that personal relationships would turn to ashes if rights were asserted within them.29 Personal relationships make all kinds of things permissible – including physical assault, he says – that in other contexts would be rights-violations. I don’t think he means, as might uncharitably be supposed, that people in personal relationships can abuse each other with impunity: I think he must have meant that certain acts (such as unannounced hugging?) that would count as assault among complete strangers simply do not count as assault among lovers (as opposed to counting, oddly, as mitigated assaults). And that is true – because, I want to say, of the crucial place of trust, as fully apposite here as in Locke’s political theory. Novelists may have treated this matter more sensitively than political theorists have. And George Eliot’s novels focus to a remarkable degree on the topic of trust and, often, its betrayal. Many of the relationships that they study begin with one form or another of confiding, emotional, marital, or monetary. One thinks of Maggie’s disappointed loving confidence in her brother in The Mill on the Floss; Gwendolen’s and Mira’s trust in Deronda in Daniel Deronda; Dorothea’s expectations about Casaubon, Mr Garth’s lending of money to Fred Vincy, the future Mrs Bulstrode’s reliance on her fiancé’s professionalism, and Fred Vincy’s entrusting Mr Farebrother with his matrimonial inquiry – all in Middlemarch. Perhaps the theme is most thoroughly explored in Romola, whose story could well be entirely described in terms of series of trusts and confidences and their redemptions or abuses: Tito’s abuse of his benefactor’s entrusting him with jewels, Tessa’s childlike trust in Tito (and then in Romola), Romola’s (and her father’s) trust in Tito, Savonarola’s fateful trust in the city, the city’s trust in its allies, Romola’s trust (and its disappointment) in Savonarola, the plague victims’ trust in Romola, and so on. One hesitates to impose any single moral lesson on all the complex and finely drawn narratives that Eliot constructs. But it would be hard to read her novels and not come away with a strong sense of the ways in which it is others’ trust in us that poses the most serious tasks for our integrity: what we are trusted with is as important for us as for the other. It is in her last novel, Daniel Deronda, that Eliot remarks, ‘Those who trust us, educate us’; but that theme recurs throughout her work, in its most explicit and fable-like form in Silas Marner. Now as that book shows, the trusting party need not voluntarily initiate trust: the trusting party is a child who comes by accident under Silas Marner’s protection, and whom, also, he (initially) comes to protect

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more or less by accident. So this gives us a good opportunity to correct a very likely misunderstanding. It isn’t an initial promise-like or contractlike agreement that brings moral considerations into play: it’s the fact of trust and the notional waiving that it entails. Robert Goodin is quite right: ‘It is dependency and vulnerability rather than voluntary acts of will which give rise to ... our most fundamental moral duties.’30 Goodin provides a compelling catalogue of the ways in which both law and intuition assign duties based not on the consent but on the sheer vulnerability of the second party, rejecting the view that all special obligations arise from consent.31 I think that everything advanced above in the language of contract could be re-expressed in Goodin’s language of vulnerability, often with an increase in directness. Avoiding foundational questions, I see no basic difference between the languages, both of which are essentially protective. In adopting the historically sanctioned language of contract, I assume that it is normative only: we should ask what form an association would take if its participants’ risk-assessments were sound. Not only is there is no assumption that associations are voluntary, the argument implies that the more involuntary they are, in fact, the more important it is to ask the contractualist question, for it is all the less likely that assessments of risk have been explicit. IX Nevertheless, a contractual model, however softened and rendered as hypothetical as one likes, may still seem too narrowly adapted to the political level. Politics, it may rightly be thought, contains challenges of its own, which personal relations do not pose. Perhaps the hardest thing in politics is to grasp, fully, the existence of pluralism: for others, the world is not as I and my friends see it, and institutions must be adapted to this chastening fact – hence contractual theory and its search for some minimal agreement that may ground an agreed set of rights. But in that respect I am not sure that the lesson to be learned in sub-political or inter-group or personal relations is all that different. In his analysis of Middlemarch, Peter Jones has brought out clearly the central importance of self-absorption and its overcoming: forms of egoistic self-preference colour not only our behaviour to others but our very perception of them and of the world.32 The moral task is to arrive at a sense of the world in which the reality of others as self-understanding agents is recognized. So the political task – again, of course, with many differences – may not be wholly different from the issues confronted in personal relations.

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Thinking about such relations, with the help of moralists such as Eliot, may suggest a corrrection, or at least an amplification, of a common view of the relations between rights and personal affection: if that contrast is overdrawn, we risk altogether losing the sense in which individuality is important. According to one view,33 rights are best seen only as a kind of safety-net for when affection fails – for ‘when justice replaces affection,’ in Waldron’s phrase. If they came into play within a personal relationship, they would, it is thought, of course have a withering effect, even if sober realism inclines us to accept them in a residual role. But a stronger claim than this should be made on several grounds. First, surely not all ordinary rights-claims are extinguished by even good relationships: even people on the best of terms should at least think twice about reading each others’ mail or spreading each others’ secrets around. Second, a close relationship may actually generate additional rights, as Michael J. Meyer suggests – one may acquire a right not just to be treated honestly, a right that we all have, but (for example) a right to be treated openly, a much more demanding entitlement.34 Third, and most important for the general argument here, close relationships derive not only their limits but their inner meaning from a background of entitlements. They have the character that they have from the relaxing of restraints and formalities that strangers (co-national or otherwise) need to observe. To be sure, we can imagine close relationships arising against a different kind of background, such as one of total war: then, presumably, the right waived between close associates would be something like the right to shoot first. But in the context of a civilized society, close personal relationships are characterized by the putting-aside of general moral entitlements, and somewhat less close relationships (such as collegial ones) are characterized by the putting-aside of somewhat less basic ones. So to understand what the content and meaning of more or less close relationships are, we have to know what background of general duties is assumed, and that, too, should incline us against any view that insists on separate moral pictures for public and private realms. We can understand what the private ones mean only in relation to what would otherwise be required if a realm had not been reserved from uniform public norms of behaviour. X So if relations within the state can be brought within the scope of this view, what of relations beyond the state? As we have seen, the view

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implies a human entitlement, for if there were none, there would be nothing to be waived, and thus no way to constitute a civic attachment as it is viewed here. So now we face the obverse of the issue: what remains when civic attachments have been constituted? Of course, much depends on how civic attachments have been constituted. Several of the chapters above have, in different ways, offered reasons for questioning a partialist view of national communities: chapter 8 sketched some of the complexities that arise for partialist nationalisms in the light of a subtle account such as Bergson’s; chapter 10 directly criticized the partialist approach, and chapter 11 rejected an implication concerning alleged national indebtedness. Other chapters, in one way or another, subscribed to a ‘civic’ approach which bases the legitimacy of national community on its capacity to engage consent. No stand was taken on how much or what form of consent is needed, and no position will be taken here on a topic that is a major one in its own right: but the clearest form of consent is of course democratic. So, when we examine proposals – such as Proudhon’s – to disaggregate national communities, the most serious objections arise, it was argued, not from considerations of national identity but from considerations about the capacity of disaggregated systems to sustain democracy. And some doubts were raised about the possibility of sustaining democratic reciprocity among noncoinciding constituencies. Those doubts were, of course, necessarily speculative. If they are rejected, then what was argued to be the main obstacle to dismantling states falls to the ground. But if states do have the merit of making effective democracy possible, that provides us with a strong reason for rejecting political cosmopolitanism. It also provides good reasons, within moral cosmopolitanism, for putting co-citizens first in certain respects. As noted above, Andrew Mason and Christopher Wellman – arguing along different lines – have developed such reasons. For Mason, it is important to understand that over and above receiving goods it is good that people should receive them through a certain kind of relationship, that is, the relation of shared citizenship: ‘Citizenship has intrinsic value because in virtue of being a citizen a person is a member of a collective body in which they enjoy equal status and are thereby provided with recognition. This collective body exercises significant control over its members’ conditions of existence.’ When one citizen helps another, ‘not only has a needy person been taken care of but also there has been a realization of the good of citizenship.’35 Citizenship is like friendship, he says, in that respect.36 For Wellman, several arguments converge to give particular

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weight to the pursuit of equality in civic contexts: inequality among cocitizens can damage their capacity to exercise their rights; the importance of equality to democratic citizenship; the positional nature of perceived deprivation.37 We can, then, if these are good arguments, derive special obligations to compatriots from ‘general moral principles’ (Mason) without invoking partialism, in the case of political societies that have certain features. Those who accept arguments of this kind may, then, combine their moral cosmopolitanism with some acceptance of global inequalities, though it would be a really mysterious sort of moral cosmopolitanism that was wholly accepting. It may initially seem that too much is conceded to global inequality here, for the following reason: if shared citizenship enhances positive duties among members and diminishes negative duties, then what distinguishes their relations with non-members is simply unimpaired negative duty, no more than that – a duty not to harm. But this seems too much of a concession only on the narrowest interpretation of what negative duties require, for it is false to say that they require only inaction. They may, for example, require the creation of powerful institutions for their protection.38 They may require us to refrain from profitable practices that are damaging to others’ capacity to survive. They may require us to act to protect against third-party attacks, or to remedy attacks by third parties (or by ourselves) after they have taken place.39 So a global obligation based on negative duties may be both comprehensive and demanding, even after the enhancement of positive duties among co-citizens. Civic-minded cosmopolitans would also accept some degree of national independence as a necessary context for civic life, and so would not dismiss the idea of ‘sovereignty’ in all its forms (though they would have no place for unconditional forms of it). They would see national polities as spaces within which issues of entitlement can be worked out under conditions of reciprocity. Within independent or sovereign political communities there are intensely disputed matters, including disputes over the practical meaning of rights. It is a common fallacy that rights have a terminal effect on political dispute. Even in Locke’s political thought – for many the paradigm case of a rights-based politics – full weight is given to the fact that politics and legislation are interpretive processes that must be designed to withstand strong disagreements of judgment and perspective. That is one reason why persecution is wrong: it cannot rationally be proposed by anyone who has a realistic sense of the uncertain and unpredictable processes that guide state action. Locke’s

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liberalism draws upon his sense of political dynamics: it depends on background assumptions about the working of a self-governing society that must evolve its laws in a self-reflexive way, and is liberal just because that self-reflexive process must accommodate disagreement. As we saw in exploring the very different view of political society offered by Comte, a society without rights (or some functional equivalent of them) lacks any sustained basis for participatory arguments. If the only available categories are right and wrong, then political life is at best tenuous: either we confront one another blankly, or else we are placed at the disposal of whoever it is that manages to establish authority over the declarations of right and wrong that are to carry weight. The effect of rights is to bring politics to a middle range that maximizes participation, by enabling citizens to draw upon the universally usable categories of resemblance, contrast, and precedent – categories that are familiar within and vital to practical life generally – in contesting the judgments of others. It is out of respect for this process – rather than, as in the case of the moral partialist, for moral diversity – that civic cosmopolitans would be inclined to protect the sovereignty of political communities: even to over-protect it, given the prudential concerns that all sensible people would have, regardless of their views of moral epistemology at an abstract level, about the risks and potential counter-productiveness of intervention. Over a certain range, moral epistemology might simply fail to determine policy outcomes, given that ancillary judgments and counterfactual estimates play so large a role. But given the basic logic of the civic cosmopolitan position, there is a point at which deference would clearly have to run out. Some thoughts were developed about that point in chapter 9 above.40 States, like all institutions, but to an immensely elevated degree, contain a dialectic of protection and vulnerability. The comprehensive protective mandate that they claim justifies a huge array of powers, while simultaneously dismantling the capacity for self-protection. These powers, then, potentially increase the vulnerability of their subjects, should they be turned against them. At a certain point, the damage that they can cause will outweigh any possible countervailing consideration: that, I argued, is the point at which damage requires as its necessary condition the full range of state powers, including not only administrative and military capacity but also internal authority and external sovereignty. That point corresponds to the moral and to an extent also to the legal concept of a crime against humanity, a notion which implicitly places both perpetrator and victim outside the scope of domestic legal systems. It is at least there that deference to

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national independence becomes utterly implausible, because it loses any conceivable justification. Deference may well become implausible short of that extreme point: where the less extreme point should be placed is again, I think, something that would need to be determined by considerations that are in part empirical rather than conceptual. But the extreme point shows us something about the logic of state membership and its limits. To account for the intuition that at some point sovereignty shifts to an imagined ‘humanity,’ we have to construct a narrative, quasicontractual in spirit though not necessarily in form, about the protective mandate of states and the necessarily conditional basis of their powers. If one’s membership in the human race, or one’s human status, is subject to adjustments, interpretations, and compromises at various levels of organization, there nevertheless has to be a point at which it is reasserted in unqualified form, for otherwise organizations would have unlimited discretion to adjust or interpret or compromise it out of existence. XI At first thought, the activity of waiving entitlements may seem a marginal moral category, connected most immediately, perhaps, with ‘complaisance’ (Hobbes) or the desire to smooth the sharp edges that social rules present. ‘Don’t mention it’ waives an entitlement to the still more profuse expression of gratitude that (we fear) may be on the way, while ‘No, please!’ waives an entitlement to receive some (not entirely welcome) gesture of respect, such as age-based priority in passing through a doorway. Habitual non-waivers, for the most part, are stiff and graceless, but not actually morally repugnant, for gracelessness is a social rather than a moral vice. But while trivial examples may come to mind first, it only takes a moment’s reflection to see that in the context of some important moral views, the activity of waiving must occupy both extensive and decidedly non-trivial space. In a view that takes rights seriously, waiving becomes a central moral practice: for rights confer discretionary control over some social item, and so at any moment may entail a demand for moral discretion. On the one hand, if we have rights, then we have a right to do wrong.41 We can, for example, hold others to unwise promises (the pound of flesh); be bad Samaritans; disappoint our children by bequeathing our property eccentrically; exercise free speech abrasively; undermine citizenship by exercising a right to do nothing; or end our working day at five, on the dot, even if someone badly needs a minute or two of our help. All of these things may be

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violations, but they are protected (though not of course justified) by rights, and to limit rights in such a way as to preclude them would be to deprive rights of their meaning. There would just be right and wrong, and no basic reason to allocate discretionary opportunities for decision. But in fact there are several such basic reasons, arising from different renderings of the value of human agency. (Perhaps voluntariness is itself a component of the good, for example; or perhaps the imperfectness of obligations confers discretion; or perhaps endemic moral conflicts incline us to devolve hard decisions to the agents themselves. I do not mean this list to be exhaustive.) On the other hand, there is discretionary waiving, the converse of the right to do wrong. We may avoid a wrong, or promote a good, by declining to do or claim something that we are entitled to do or claim. This may be a matter of independent decision, or it may be implied in an institution that we belong to, by virtue of the limits that membership entails. I have argued above that this provides a framework for thinking about the various associative levels of human life. There is no paradox at all (though above I used the term ‘dialectic’) in the thought that we seek to diminish our vulnerability sometimes by asserting and sometimes by waiving entitlements, or things that in other circumstances would be entitlements. Both asserting and waiving are risky: asserting, because it can damage associations that serve to protect us; waiving, because it can expose us to associations in which trust is violated. To further complicate the matter, there are at least three general levels of association – among friends, among citizens, and among strangers – at which this dialectic is played out. Complex though it is, there is, I have suggested, a single framework of assessment that we can use to make sense of it, one which directs us to pay particular attention to the gains and losses in terms of vulnerability as we think about what we assert or abandon in our various levels of membership. How one should behave to a dependent or friend or colleague whose confidence one has; whether states should promote or allow or forbid particular kinds of association; whether or not a state’s sovereignty gives way to humanitarian considerations – these are all decisions that call for very different kinds of background knowledge and which probably draw on different kinds of motivation too. But the essential moral considerations seem no different. A very simple schema suggests itself, one that obviously needs elaboration at every associational level, but which arises naturally from the discussions in this book. Requirements at each level demand justification in terms of a net reduction of vulnerability at levels

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below. This follows from what was termed the dialectic of protection and vulnerability mentioned above. Associations of all kinds, if legitimate, have the benign effect of protecting their members from all the dangers, physical, emotional, and spiritual, that attend isolation. Because they involve trust, they also make their members vulnerable in new ways: not only do their members implicitly or explicitly waive self-protection, they participate in creating or supporting new kinds of power of various kinds. If that power is turned against them, their protection comes to depend on some further layer of association that will either guarantee their right of exit or compel the association to respect the terms of trust embedded in it. And then, of course, the dilemma is repeated on a still larger scale, but in a more complex way, for now the net effects of decisions at multiple levels have to be weighed. Whatever merits this schema has are, of course, of the problemdefining rather than the problem-solving kind. It is simply meant to show that we can take account of the multi-levelled nature of human life without having to resort to pluralist or dualist models that construe choices as incommensurable or tragic or merely pragmatic. To the extent that the schema may govern the decisions made within it, two of its general features may be especially important. First, its implied stress on conditionality: there is a constant process of reservation that denies that humans are defined or encompassed by their associations – a view classically expressed by social contract theory, though I hope to have escaped some of the critiques that the more literal-minded versions of that theory invite. Second, there is a strong element of subsidiarity, that is, of the view that levels of organization derive their authority only from the shortcomings of levels below. So there is a certain built-in bias towards the local: higher levels of organization face an uphill slope of justification that compels demonstration of the inefficiency or injustice of more local control. Now those two features – the ‘reservation’ feature and the ‘subsidiarity’ feature – are often at odds in contemporary political thought, the one undermining, the other supporting, existing forms of association. The argument of this book, however, is that we have to take them together as complementary requirements. All associations are open to evaluation from a perspective larger than their own, while no association is automatically absorbed by those that surround it.

Notes

Introduction 1 Jean-Jacques Rousseau, Emile, trans. Barbara Foxley (London: Dent [Everyman], 1911), 7. I have made the translation gender-neutral. 2 Isaiah Berlin, ‘The Decline of Utopian Ideas in the West,’ in Unity, Plurality and Politics: Essays in Honour of F.M. Barnard, ed. J.M Porter and Richard Vernon (London: Croom Helm, 1986) 123. 3 Thomas Nagel, Equality and Partiality (New York: Oxford University Press, 1991), 16. 4 Samuel Scheffler, Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford: Oxford University Press, 2001), especially chapter 6. 5 See Alasdair MacIntyre, ‘Is Patriotism a Virtue?’ in Theorizing Citizenship, ed. Ronald Beiner (Albany: SUNY Press, 1995), 209–28. 6 Charles Jones, Global Justice (Oxford: Oxford University Press, 1999), 124–5. 1 Neighbourhood and Conscience in Locke 1 This was not a new thought in the Natural Law tradition: see Hugo Grotius, The Law of War and Peace, trans. Francis W. Kelsey (Indianapolis: BobbsMerrill, 1925), 773–4. 2 See especially Charles Taylor, ‘Atomism,’ in Philosophy and the Human Sciences (Cambridge: Cambridge University Press, 1985), 187–210. This chapter argues in favour of Leslie Green’s rival view that the model is ‘molecular’ (i.e. group-based) rather than atomic – see ‘Internal Minorities and Their Rights,’ in Group Rights, ed. Judith Baker (Toronto: University of Toronto Press, 1994), 102.

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Notes to pages 15–21

3 See C.B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Clarendon Press, 1962). 4 Carl Schmitt, Political Theology, trans. George Schwab (Cambridge, MA: MIT Press, 1985), 36. For a critique of the conceptual foreshortening involved in such a view, see Heiner Bielefeldt, ‘“Western” versus “Islamic” Human Rights Conceptions? A Critique of Cultural Essentialism,’ Political Theory 28 (2000), 90–121. 5 See Jeremy Waldron, God, Locke, and Equality (Cambridge: Cambridge University Press, 2002) for a thorough and balanced discussion. 6 Max Weber, The Protestant Ethic and the Spirit of Capitalism, trans. Talcott Parsons (London: Allen and Unwin, 1930). 7 Michael Walzer, On Toleration (New Haven: Yale University Press, 1997), 67–8. 8 Ronald Beiner, What’s the Matter with Liberalism? (Berkeley: University of California Press, 1992), 16n. 9 L.A. Siedentop, ‘Liberalism: The Christian Connection,’ Times Literary Supplement 24–30 March 1989, 308. 10 Charles Taylor, ‘The Politics of Recognition,’ in Multiculturalism, ed. Amy Gutmann (Princeton: Princeton University Press, 1994), 62. 11 Richard Webster, A Brief History of Blasphemy (Southwold: Orwell Press, 1990), 57–9. 12 Fay Weldon, Sacred Cows (London: Chatto and Windus, 1989). 13 David Miller, On Nationality (Oxford: Oxford University Press, 1995), 170. 14 See Antony Black, ‘Christianity and Republicanism: From St. Cyprian to Rousseau,’ American Political Science Review 91 (1997), 647–55. 15 Amartya Sen, ‘Human Rights and Asian Values,’ in Ethics and International Affairs, 2nd edition, ed. Joel H. Rosenthal (Washington, DC: Georgetown University Press, 1999), 183–4. 16 Bielefeldt, ‘“Western” versus “Islamic” Human Rights Conceptions,’ 97–100. 17 See David Wootton, ‘John Locke: Socinian or Natural Law Theorist?’ in Religion, Secularization and Political Thought, ed. James E. Crimmins (London: Routledge, 1989), 39–67. 18 Jeremy Waldron, ‘Locke, Toleration and the Rationality of Persecution,’ in Justifying Toleration, ed. Susan Mendus (Cambridge: Cambridge University Press, 1988), 81. 19 John Locke, An Essay Concerning Human Understanding, ed. Peter H. Nidditch (Oxford: Clarendon Press, 1975), 64. 20 Ibid., 80. 21 Ibid., 81. 22 Ibid., 83. 23 Ibid., 88.

Notes to pages 21–8 273 24 25 26 27 28 29

30 31 32 33 34 35 36

37

38 39 40 41 42 43 44

45 46 47

Ibid., 99. Ibid., 657. Ibid., 718–19. Ibid., 707–8. See Waldron, God, Locke and Equality, chapter 4, for a defence of this view. John Locke, A Letter Concerning Toleration, in Works (London: Tegg, 1823), vol. 6, 7. Jonas Proast, The Argument of the Letter Concerning Toleration, Briefly Considered and Answered, in Letters on Toleration, ed. Peter A. Schouls (New York: Garland, 1984). Locke, Works, vol. 6, 101–2. Locke, Works, vol. 7, 146. Locke, Works, vol. 6, 297. Ibid., 298. I have tried to make this point before, in The Career of Toleration: John Locke, Jonas Proast, and After (Montreal: McGill-Queen’s University Press, 1997), 30. Locke, Works, vol. 6, 25. That is not to say that he sees conscience as a separate or special faculty. It is ‘nothing else but our own opinion or judgment of the moral rectitude or pravity of our own actions.’ Essay, 70. See John W. Yolton, ed., A Locke Dictionary (Oxford: Blackwell, 1993), 49–51. But see Paul Bou-Habib, ‘Locke, Sincerity, and the Rationality of Persecution,’ Political Studies 51 (2003), 611–26, for an important interpretation of Locke’s meaning that may escape Waldron’s critique. Locke, Works, vol. 6, 64. See Waldron, ‘Locke, Toleration, and the Rationality of Persecution,’ 72. Locke, Works, vol. 6, 144. Ibid., 146, emphasis added. Ibid., 146–7. John Milton, Areopagitica, in Areopagitica and Of Education, ed. George H. Sabine (Arlington Heights, IL: Crofts Classics, 1951), 37. Since readers will have many different editions of the Second Treatise, I give in-text citations with section numbers. The edition used is Locke: Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1960). Locke, Works, vol. 6, 137. See ibid., 543, for a gloss on the meaning of ‘party.’ See Locke, Works, vol. 6, 156–8. See Thomas M. Lennon, ‘Bayle, Locke, and the Metaphysics of Toleration,’ in Studies in Seventeenth-Century European Philosophy, ed. M.A. Stewart (Oxford: Clarendon Press, 1997), 177–95.

274 Notes to pages 28–37 48 Pierre Bayle, A Philosophical Commentary on the Words of the Gospel, Luke XIV. 23 ‘Compel them to come in, that my house may be full,’ English translation (London: J. Darby, 1708), 59. 49 Ibid., 152–5. Of course, Bayle’s view that the mind ‘acts’ should be contrasted with Locke’s view that in such matters the mind is passive. 50 Ibid., 682. 51 See David Heyd, ed., Toleration: An Elusive Virtue (Princeton: Princeton University Press, 1996). 52 Bayle, Philosophical Commentary, 685. 53 Ibid., 685–6. 54 Ibid. 49. 55 See Elisabeth Labrousse, Bayle, trans. Denys Potts (Oxford: Oxford University Press, 1983), 34–7. 56 Bayle, Philosophical Commentary, 145. 57 See Gerald Dworkin, ‘Non-Neutral Principles,’ in Reading Rawls, ed. Norman Daniels (Oxford: Blackwell, 1975), 124–40. 58 Bayle, Philosophical Commentary, 291. 59 John Kilcullen, Sincerity and Truth: Essays on Arnauld, Bayle and Toleration (Oxford: Clarendon Press, 1988), 89–95, 106–35. 60 Ibid., 129. 61 See Robert Goodin, Motivating Political Morality (Oxford: Blackwell, 1992), 149–59. 62 So there is a bridge between the two kinds of compassion (‘communitarian’ and ‘humanitarian’) distinguished by Luc Boltanski, La Souffrance à distance (Paris: Métailié, 1993) – because some communities transgress borders. 63 Locke, Works, vol. 6, 137. 64 See Samuel Scheffler, Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford: Oxford University Press, 2001), especially chapter 5. 65 For a classical discussion of this matter, see Cicero, On Obligations, trans. P.G. Walsh (Oxford: Oxford University Press, 2000), 19–20. 66 Locke, Works, vol. 6, 212, for a clear statement of the contrast. For the connection between ‘neighbourhood’ and ‘party,’ see the Essay, 718. 67 Locke, Essay, 304. 68 ‘Neighbourhood joins some, and religion others’: Works, vol. 6, 50. 69 See John Harris, The Mind of John Locke (Cambridge: Cambridge University Press, 1994). 70 See Susan Moller Okin, Justice, Gender and the Family (New York: Basic Books, 1989), 89–109; and very much more contentiously, D. Van de Veer, ‘Of Beasts, Persons and the Original Position,’ Monist 62 (1979), 368–77.

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71 These conditions correspond to the four ‘maxims’ that Wayne Norman lists in ‘“Inevitable and Unacceptable?” Methodological Rawlsianism in AngloAmerican Political Philosophy,’ Political Studies 46 (1998), 276–94. That they may be seen as methodologically Lockean or Baylean, as well as Rawlsian, reinforces the claim about embeddedness made in the text. Rawls gives a systematic formulation to necessary post-Reformation assumptions; the impact of Rawls demonstrates the prevalence of those assumptions; and the persistent uneasiness with the Rawlsian solution shows that the post-Reformation settlement is still to be satisfactorily worked out. 72 Locke, Works, vol. 6, 95. For a thought-provoking discussion of the expansive tendency of moral concepts, see Norman Geras, Solidarity in the Conversation of Mankind: The Ungroundable Liberalism of Richard Rorty (London: Verso, 1995), 94–5. 2 Why Is Rousseau Difficult? 1 Sheldon Wolin, Politics and Vision (Boston: Little, Brown, 1960), 286–351. 2 Kimberly Hutchings, ‘Political Theory and Cosmopolitan Citizenship,’ in Cosmopolitan Citizenship, ed. Kimberly Hutchings and Roland Dannreuther (Houndmills: Macmillan, 1999), 6. 3 References to Social Contract are identified by book and chapter number and inserted directly in the text. The edition used is The Social Contract and Discourses, ed. G.D.H. Cole (London: Dent, 1913). 4 Emil Durkheim, Rules of Sociological Method, trans. Sarah A. Solovay and John H. Mueller (New York: Free Press, 1938), 3. 5 J.G.A. Pocock, The Machiavellian Moment (Princeton: Princeton University Press, 1975), 533. 6 Jean-Jacques Rousseau, Political Writings, ed. C.E. Vaughan (Oxford: Blackwell, 1962), vol. 1, 452. Translations are my own. 7 Ibid., 139. 8 Jacques Bénigne Bossuet, De la politique tirée des propres paroles de l’Ecriture Sainte [1709] (Geneva: Droz, 1967), 177. 9 Hugo Grotius, The Law of War and Peace, trans. Francis W. Kelsey (Indianapolis: Bobbs-Merrill, 1925), 13. 10 Political Writings, vol. 1, 196. 11 See Robert Derathé, Jean-Jacques Rousseau et la science politique de son temps (Paris: Presses Universitaires, 1950), 49. 12 Included in Rousseau, Political Writings, vol. 1, 429–33. 13 See W.G. Runciman and A.K. Sen, ‘Games, Justice and the General Will,’ Mind 74 (1965), 554–62, and more recently David Braybrooke, Natural Law Modernized (Toronto: University of Toronto Press, 2002), chapter 3.

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14 See for example A.J. Krailsheimer, Studies in Self-Interest (Oxford: Clarendon Press, 1962). 15 Political Writings, vol. 1, 452. 16 Ibid., 454. 17 John B. Noone, ‘Rousseau’s Theory of Natural Law as Conditional,’ Journal of the History of Ideas 33 (1972), 23–42. 18 I believe this is quite compatible with the view that he was a cultural (as opposed to a moral) relativist: see F.M. Barnard, ‘National Culture and Political Legitimacy: Herder and Rousseau,’ Journal of the History of Ideas 44 (1983), 231–53. 19 Political Writings, vol. 1, 453. On Rousseau and Stoicism, see Christopher Brooke, ‘Rousseau’s Political Philosophy: Stoic and Augustinian Origins,’ in The Cambridge Companion to Rousseau, ed. Patrick Riley (Cambridge: Cambridge University Press, 2002), 94–123. 20 Political Writings, vol. 1, 453. 21 See Malcolm Schofield, The Stoic Idea of the City (Cambridge: Cambridge University Press, 1991). 22 Rousseau, Political Writings, vol. 1, 250–1. 23 Friedrich Meinecke, Cosmopolitanism and the National State, trans. Robert B. Kimber (Princeton: Princeton University Press, 1970), 30. 24 See for example Seneca’s remark that in cosmopolis ‘we do not look to this or that corner [of the world]’: quoted in Eduard Zeller, Stoics, Epicureans and Sceptics, trans. Oswald J. Reichel (London: Longman’s, 1870), 306n. 25 See however Kennedy Roche, Rousseau: Stoic and Romantic (London: Methuen, 1974), 2. 26 On the inward rather than the public character of decision-making, see Arash Abizadeh, ‘Banishing the Particular: Rousseau on Rhetoric, Patrie, and the Passions,’ Political Theory 29 (2001), 565. 27 See Zeller, Stoics, 312n. 28 Political Writings, vol. 1, 243. 29 Ibid., 251. 30 Ibid., 449. 31 Jean-Jacques Rousseau, Emile, trans. Barbara Foxley (London: Dent, 1911), 326. 32 Political Writings, vol. 1, 242–3. 33 Emile, 8: she takes no interest in what has happened to her (warrior) sons until she has learned whether or not Sparta won the battle. Rousseau remarks: ‘that was a citizen.’ 34 Political Writings, vol. 1, 495. 35 Ibid., 252.

Notes to pages 49–59 36 37 38 39 40 41 42

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Emile, 7. As before, I have made the translation gender-neutral. Political Writings, vol. 2, 52. Political Writings, vol. 1, 251. Ibid., 495. For Kant’s debt to Rousseau, see Ernst Cassirer, Rousseau, Kant, Goethe, trans. James Gutmann et al. (Princeton: Princeton University Press, 1970), 1–18. James Coleman and John Ferejohn, ‘Democracy and Social Choice,’ Ethics 97 (1986), 16–18. Richard Wollheim, ‘A Paradox in the Theory of Democracy,’ in Philosophy, Politics and Society: Second Series, ed. Peter Laslett and W.G. Runciman (Oxford: Blackwell, 1962), 71–87. See Brian Barry, ‘Wollheim’s Paradox: A Comment,’ Political Theory 1 (1973), 317–22. As an anonymous reader for the Press points out, this discussion ignores the possible ‘Condorcetian’ solution based, roughly, on the fact that if members of a group taken individually are likely to be right then the group as a whole is more likely to be right. This view of what Rousseau may have had in mind arises from a classic paper by Brian Barry, ‘The Public Interest,’ in Political Philosophy, ed. Anthony Quinton (London: Oxford University Press, 1967, 112–26. In my view, the solution is too conditional for Rousseau’s purposes. For a balanced discussion of Condorcet’s theorem, see Robert E. Goodin and David Estlund, ‘The Persuasiveness of Democratic Majorities,’ Politics, Philosophy and Economics 3 (2004), 131–42.

3 Mary Wollstonecraft: Stoic, Republican, Feminist 1 Mary Wollstonecraft, A Vindication of the Rights of Woman, in Political Writings, ed. Janet Todd (Toronto: University of Toronto Press, 1993), 157–74. 2 Barbara Taylor, Mary Wollstonecraft and the Feminist Imagination (Cambridge: Cambridge University Press, 2003), 246–53. 3 Lisa Hill, ‘The First Wave of Feminism: Were the Stoics Feminists?’ History of Political Thought 22 (2001), 13–40. 4 Patricia Hughes, ‘Mary Wollstonecraft: Stoic Liberal-Democrat,’ Canadian Journal of Political and Social Theory (1977), 59–71. 5 Peter Gay, The Enlightenment: An Interpretation (London: Weidenfeld and Nicholson, 1966). 6 Thomas J. Schlereth, The Cosmopolitan Ideal in Enlightenment Thought (Notre Dame: University of Notre Dame Press, 1977), 1. 7 Alasdair MacIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1981), 157–8, 217–20.

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Notes to pages 59–77

8 Barbara Taylor, ‘The Religious Foundations of Mary Wollstonecraft’s Feminism,’ in The Cambridge Companion to Mary Wollstonecraft, ed. Claudia Johnson (Cambridge: Cambridge University Press, 2002), 99–118. 9 References to Wollstonecraft’s Vindication are inserted directly into the text. 10 Hill, ‘The First Wave,’ 32–3. 11 Epictetus, Enchiridion, in Essential Works of Stoicism, ed. Moses Hadas (New York: Bantam, 1961), 86. 12 Laura Brace, ‘“Not Empire, but Equality”: Mary Wollstonecraft, the Marriage State, and the Sexual Contract,’ Journal of Political Philosophy 8 (2000), 439. 13 See John M. Rist, Stoic Philosophy (Cambridge: Cambridge University Press, 1969), chapter 5. 14 Laura Brace, in ‘“Not Empire, but Equality,”’ rightly stresses the important influence of Rousseau here. If one wishes to cast the net of influence more widely, see Caroline Robbins’s classic work, The Eighteenth-Century Commonwealthman (Cambridge, MA: Harvard University Press, 1959). 15 G.J. Barker-Benfield, ‘Mary Wollstonecraft: Eighteenth-Century Commonwealthwoman,’ Journal of the History of Ideas 49 (1989), 95–115. 16 See Quentin Skinner, Liberty before Liberalism (Cambridge: Cambridge University Press, 1998), chapter 1. 17 Taylor, Mary Wollstonecraft, 69–70, 158–9. 18 See J.G.A. Pocock, The Machiavellian Moment (Princeton: Princeton University Press, 1975). 19 Susan Mendus, Feminism and Emotion: Readings in Moral and Political Philosophy (New York: St Martin’s, 2000), 13–27. 20 Pocock, Machiavellian Moment, 486. See also Taylor, Mary Wollstonecraft, 211, for an account of Wollstonecraft’s move from Stoic ‘independence’ to republican ‘recognition.’ As one of the Press’s anonymous readers rightly points out, Cicero too had combined Stoic and republican themes. My view is that in Cicero’s work the republican theme overwhelms Stoic universalism. For a sympathetic account that nevertheless conveys how little universalism is left, see Thomas L. Pangle, ‘Socratic Cosmopolitanism: Cicero’s Critique and Transformation of the Stoic Ideal,’ Canadian Journal of Political Science 31 (1998), 235–62. 21 Iris Marion Young, Throwing Like a Girl and Other Essays in Feminist Philosophy and Social Theory (Bloomington: University of Indiana Press, 1990), 93. 22 Susan Mendus, ‘Losing the Faith,’ in Democracy, ed. John Dunn (New York: Oxford University Press, 1992), 207–19. 23 See Alasdair MacIntyre, ‘Is Patriotism a Virtue?’ in Theorizing Citizenship, ed. Ronald Beiner (Albany: SUNY Press, 1995), 209–28. 24 Don Herzog, Poisoning the Minds of the Lower Orders (Princeton: Princeton University Press, 1998), 414–54.

Notes to pages 77–84

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25 See Gary Gutting, ed., Paradigms and Revolutions (Notre Dame: University of Notre Dame Press, 1980). 26 Seyla Benhabib, ‘The Generalized and the Concrete Other: The KohlbergGilligan Controversy and Feminist Theory’ in Feminism as Critique: Essays on the Politics of Gender in Late-Capitalist Societies, ed. Seyla Benhabib and Drucilla Cornell (Cambridge: Polity, 1987), 148n. 27 Claude Lévi-Strauss, The Savage Mind, English translation (London: Weidenfeld and Nicholson, 1962), 16–36. 28 Carole Pateman, The Disorder of Women: Democracy, Feminism and Political Theory (Cambridge: Polity, 1998). 29 Nancy Fraser, Justice Interruptus: Critical Reflections on the ‘Post-Socialist’ Condition (New York: Routledge, 1997), 175–80. 30 Chantal Mouffe, ‘Feminism, Citizenship and Radical Democratic Politics,’ in Feminists Theorize the Political, ed. Judith Baker and Joan W. Scott (New York: Routledge, 1992), 373. 4 Auguste Comte’s Cosmopolis of Care 1 ‘[C]es prétendus cosmopolites qui, justifiant leur amour pour la patrie par leur amour pour le genre humain, se vantent d’aimer tout le monde, pour avoir droit de n’aimer personne.’ First version of Du contrat social, in Political Writings, ed. C.E. Vaughan (Oxford: Blackwell, 1962), vol.1, 453. 2 Thomas J. Schlereth, The Cosmopolitan Ideal in Enlightenment Thought (Notre Dame: University of Notre Dame Press, 1977), 1. 3 Ibid., 125. 4 Ibid., 48. 5 Auguste Comte, Système de politique positive (Paris: Société Positiviste, 1924), vol. 4, 74. All translations from Comte are my own. 6 Michael Walzer was later to complain, in criticizing cosmopolitanism, that humanity ‘has no history and no culture, no customary practices, no familiar life-ways, no festivals, no shared understandings of social goods.’ Thick and Thin (Notre Dame: University of Notre Dame Press, 1994), 8. It was Comte’s project to supply humanity with exactly those things! 7 See T.R. Wright, The Religion of Humanity: The Impact of Comtean Positivism in Victorian Britain (Cambridge: Cambridge University Press, 1986). 8 Here I abbreviate a more complete discussion in my Citizenship and Order, chapter 5. 9 Système, vol. 4, appendix, 177–201. 10 Auguste Comte, Cours de philosophie positive (Paris: Hermann, 1975), vol. 2, 37–8.

280 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47

Notes to pages 84–91

Ibid., 49. Ibid., 85. Ibid., 366. Ibid., 511–12, 518. Système, vol. 2, 290–1. Ibid., 305. Ibid., 320. Auguste Comte, Catéchisme positiviste (Paris: Garnier-Flammarion, 1966), 131. See Frank E. Manuel, The Prophets of Paris (New York: Harper, 1962), 251–60. Cours, vol. 2, 35. Système, vol. 4, 71–6. See the Catéchisme, especially 59–71 and 151–71. John Stuart Mill, Utilitarianism, On Liberty, Considerations on Representative Government (London: Everyman, 1972), 34. See chapter 7 below. Catéchisme, 60. See Richard Vernon, ‘Auguste Comte and Phrenology,’ History of European Ideas 7 (1986), 271–86. Catéchisme, 60. Système, vol. 4, after 402. Système, vol. 2, 315. Système, vol. 1, 335. Système, vol. 2, 97. Catéchisme, 217. Cours, vol. 2, 667. Système, vol. 2, 97, Catéchisme, 247. Système, vol. 1, 335. Ibid., 363. Catéchisme, 217. Système, vol. 4, 82, 84. Système, vol. 2, 212–13. Catéchisme, 247 Cours, vol. 2, 186. Ibid., 677. Système, vol. 2, 263–4. Catéchisme, 233. Système, vol. 2, 217–18, 234. Ibid., 413. Système, vol. 4, 280. Joel Feinberg, ‘The Nature and Value of Rights,’ in Rights, Justice and the Bounds of Liberty (Princeton: Princeton University Press, 1980), 143–58.

Notes to pages 91–9 281 48 See Jeremy Waldron, Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man (London: Methuen, 1987). 49 Système, vol. 1, 361. 50 Catéchisme, 230, emphasis added. 51 Ibid., 238. 52 Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), chapter 1. 53 Ibid., 65. 54 Emil Durkheim, ‘Individualism and the Intellectuals,’ trans. Steven Lukes, Political Studies 17 (1969), 14–30. 55 See chapter 11 below. 56 Joseph Raz, ‘Rights-Based Moralities,’ in Theories of Rights, ed. Jeremy Waldron (Oxford: Oxford University Press, 1984), 183. 57 Seyla Benhabib, ‘Toward a Deliberative Model of Democratic Legitimacy,’ in Democracy and Difference, ed. Seyla Benhabib (Princeton: Princeton University Press, 1996), 79–80. 58 Système, vol. 4, 281. 59 Stephen K. White, Sustaining Affirmation: The Strengths of Weak Ontology in Political Theory (Princeton: Princeton University Press, 2000). 5 ‘In Rooms Adjoining’: George Eliot and the Proximate Other 1 The Mill on the Floss, vol. 2, 362. All references to Eliot’s novels (unless otherwise stated) are to the Cabinet edition (Edinburgh: Blackwood, 1878–85): title, volume number, and page number are given. 2 Jonathan Dancy, Moral Reasons (Oxford: Blackwell, 1993), 70–1. In explaining the particularist point of view, Dancy states that ‘changes in the attendant circumstances [of an action] can alter rather than merely overwhelm the moral tendency of a particular property’ (56). I take this to mean that judgments about principles (which would abstract properties from acts) cannot precede judgments about acts, and it is this interpretation that I examine in the context of Eliot’s fiction. 3 See Carol Gilligan, In a Different Voice (Cambridge, MA: Harvard University Press, 1982). 4 Seyla Benhabib, ‘The Generalized and the Concrete Other: The KohlbergGilligan Controversy and Feminist Theory,’ in Feminism as Critique: Essays on the Politics of Gender in Late-Capitalist Societies, ed. Seyla Benhabib and Drucilla Cornell (Cambridge: Polity, 1987), 77–95. 5 See Gillian Beer, George Eliot (Brighton: Harvester, 1986). 6 The Mill on the Floss, vol. 1, 313.

282

Notes to pages 99–103

7 Ibid., 353. 8 Felix Holt, vol. 1, 72. The prescient foreshadowing of the ‘tragedy of the commons theme’ here reinforces the point that private actions have public consequences. 9 The care/justice dichotomy is complex, as Leslie Cannold et al. point out, in ‘What Is the Justice-Care Debate Really About?’ in Midwest Studies in Philosophy XX: Moral Concepts, ed. Peter French et al. (Notre Dame: University of Notre Dame Press, 1996), 357–77. 10 Adam Bede, vol. 1, 100. The complementary point is also made: it is often best ‘not to follow great reformers of abuses beyond the threshold of their homes’ (ibid., 101). 11 Middlemarch, vol. 3, 361, 392. 12 Felix Holt, vol. 1, 114. 13 She compares conventional expectations with the Chinese practice of footbinding (Daniel Deronda, vol. 3, 131), and describes her own life as a growing ‘tree’ (ibid., 141). Mill employs both images in chapter 3 of On Liberty. 14 Middlemarch, vol. 3, 133. In this remark there are clear echoes of Wordsworth: contrasting ‘science’ and poetry,’ Wordsworth complains that the former, unlike the latter, comes to us ‘by no habitual and direct sympathy connecting us with our fellow-beings.’ 1802 Preface, in Lyrical Ballads, ed. Michael Mason (London: Longman, 1992), 76. 15 Romola, vol. 1, 318–19. 16 Romola, vol. 2, 309. 17 See Aristotle, Ethics, trans. J.A.K. Thomson (Harmondsworth: Penguin, 1953), 56: ‘It is in the course of our dealings with our fellow-men that we become just or unjust.’ 18 Middlemarch, vol. 1, 221–2. 19 Middlemarch, vol. 3, 384: a critique of the Faustian model? 20 Ibid., 81. 21 Ibid., 130. 22 Romola, vol. 1, 340. See also Adam Bede, vol. 2, 37: ‘Our deeds determine us.’ 23 Romola, vol. 2, 88. 24 Middlemarch, vol. 2, 286. 25 Ibid., 285. 26 Ibid., 176. 27 Daniel Deronda, vol. 1, 283, 363. 28 Daniel Deronda, vol. 2, 384. 29 Ibid., 395. 30 The value of nationality, again exemplified by the Jewish case, is even more explicitly defended in Theophrastus Such, chapter 18.

Notes to pages 103–7

283

31 Romola, vol. 2, 322–3. 32 The transition is briefly described in the concluding pages of the popularizing work by Eliot’s partner, G.H. Lewes: Comte’s Philosophy of the Sciences (London: Bohn, 1853), 339–45. Some relevant aspects are discussed in Richard Vernon, Citizenship and Order (Toronto: University of Toronto Press, 1986), chapter 5. 33 See T.R. Wright, The Religion of Humanity: The Impact of Comtean Positivism in Victorian Britain (Cambridge: Cambridge University Press, 1986). Chapter 5 deals extensively with Eliot. 34 See Daniel Deronda, vol. 1, 55, for the ‘princess’ theme. 35 Daniel Deronda, vol. 2, 258; see also 266. 36 Ibid., 256; see also 264. That Gwendolen’s fortune derives from West Indian slavery seems relevant to this theme. 37 Ibid., 256. 38 Ibid., 264. 39 This point is made strongly in Felix Holt’s ‘Address to Working Men,’ appended to later editions of the novel; see the Everyman edition (London: Dent, 1966), 454. 40 Daniel Deronda, vol. 1, 211 41 Daniel Deronda, vol. 3, 189. 42 Middlemarch, vol. 3, 130–1. 43 Romola, vol. 1, 149. 44 Romola, vol. 2, 96. 45 Romola, vol. 1, 179. 46 Romola, vol. 2, 204. 47 Romola, vol. 1, 434, 438. 48 Ibid., 435–7. 49 Romola, vol. 2, 322. 50 Romola, vol. 1, 320. 51 Ibid., 359. 52 Ibid. 53 Romola, vol. 2, 309. 54 Ibid., 235. 55 Romola, vol. 1, 285, vol. 2, 273. 56 See Eliot’s ‘The Antigone and Its Moral,’ in The Essays of George Eliot, ed. Thomas Pinney (New York: Columbia University Press, 1963), 261–5. 57 Romola, vol. 2, 322. 58 Ibid., 235, 309. 59 Ibid., 111. 60 Ibid., 413.

284 61 62 63 64 65

66 67 68 69 70 71 72 73 74 75 76 77 78 79

80

81 82 83 84 85 86

87 88 89

Notes to pages 108–12

Ibid., 322. Impressions of Theophrastus Such, 237–8. Middlemarch, vol. 3, 308. Ibid., 390–1. I take this to support Will Kymlicka’s important point that there is a difference between (caringly) noticing what is relevant to someone’s particular circumstances and determining (justly) what the appropriate response is. See Contemporary Political Philosophy (Oxford: Oxford University Press, 1990), 267–9. Middlemarch, vol. 3, 444. Felix Holt, vol. 1, 92. Scenes of Clerical Life, vol. 2, 163. Daniel Deronda, vol. 2, 258. Romola, vol. 2, 17. Mill on the Floss, vol. 1, 76. Ibid., 65–7. Felix Holt, vol. 1, 109. Felix Holt, vol. 2, 39. Daniel Deronda, vol. 3, 118. Romola, vol. 1, 177. Daniel Deronda, vol. 2, 213. Romola, vol. 2, 323. The opposition between reason and feeling here is also undermined in Adam Bede (vol. 2, 336), where Adam says ‘feeling’s a sort o’ knowledge,’ ‘feeling’ here clearly being moral feeling or sympathy. From the manuscript of Theophrastus Such: see Impressions of Theophrastus Such, ed. Nancy Henry (Iowa City: University of Iowa Press, 1994), appendix 2, 169. Daniel Deronda, vol. 2, 234. Middlemarch, vol. 1, 129. Ibid., 39. Middlemarch, vol. 1, 337. From the first edition of Middlemarch: see the edition by David Carroll (Oxford: Clarendon Press, 1986), 824n. On a more minor scale, the problem of depending on others is also explored in Mill on the Floss, chapter 2, where Mr Tulliver confronts the problem of conveying to his son what he does not know himself. Daniel Deronda, vol. 2, 234. Daniel Deronda, vol. 3, 290–1. Felix Holt, vol. 2, 37.

Notes to pages 113–19 90 91 92 93 94 95 96 97 98 99 100 101

102

103 104

105 106 107 108 109

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Middlemarch, vol. 3, 465. Romola, vol. 1, 437. Adam Bede, vol. 2, 76. Adam Bede, vol. 1, 222. Middlemarch, vol. 3, 492, emphasis added. Middlemarch, vol. 2, 179. Middlemarch, vol. 3, 464–5. Ibid., 455. Ibid., 392. Auguste Comte, Système de politique positive (Paris: Société Positiviste, 1929), vol. 2, 343 (my translation). Auguste Comte, Catéchisme positiviste (Paris: Garnier-Flammarion, 1966), 186–7 (my translation). See David Miller, ‘The Ethical Significance of Nationality,’ Ethics 98 (1988), 647–62, and Robert Goodin, ‘What Is So Special about Our FellowCountrymen?’ Ethics 98 (1988), 663–86. Iris Murdoch, ‘The Sublime and the Good,’ in Existentialists and Mystics: Writings on Philosophy and Literature, ed. Peter Conradi (New York: Penguin, 1997), 215–16. See for example Marcia Baron, Kantian Ethics Almost without Apology (Ithaca: Cornell University Press, 1995). J. David Velleman, ‘Love as a Moral Emotion,’ Ethics 109 (1999), 338–74. For a critique, see Elijah Millgram, ‘Kantian Crystallization,’ Ethics 114 (2004) 511–13. Velleman, ‘Love,’ 366. Ibid., 351. See Susan Mendus, Feminism and Emotion: Readings in Moral and Political Philosophy (New York: St Martin’s, 2000), 22. Which follows Wollstonecraft’s recipe – marry after disappointment. See chapter 3. Edward W. Said, Orientalism (New York: Vintage, 1979), 169, 192.

6 ‘Proudhonism’: Or, Citizenship without a City 1 George Eliot, Felix Holt The Radical (London: Dent [Everyman], 1966), 455, 462. 2 See Steven Lukes, Marxism and Morality (Oxford: Oxford University Press, 1987), for critical discussion. 3 Karl Marx, The German Ideology, in Robert C. Tucker ed. The Marx-Engels Reader (New York: Norton, 1978), 193.

286 Notes to pages 121–31 4 This section draws from two earlier discussions: Richard Vernon, ‘Introduction’ to Proudhon, The Principle of Federation (Toronto: University of Toronto Press, 1979), and Vernon, Citizenship and Order (Toronto: University of Toronto Press, 1986), chapter 3. 5 Perhaps the best text is Proudhon’s De la capacité politique des classes ouvrières (Paris: Rivière, 1924), especially chapter 13. 6 Montesquieu, De l’Esprit des lois (Paris: Garnier, 1961), vol. 1, 138. 7 The Principle, 31. 8 Ibid., 32. 9 Ibid., 61. 10 Ibid., 28. 11 Alan Ritter, The Political Thought of Pierre-Joseph Proudhon (Princeton: Princeton University Press, 1969), 137. 12 Ibid., 198. 13 G.D.H. Cole, Self-Government in Industry (London: Bell, 1919), 147–8. 14 G.D.H. Cole, Guild Socialism Re-Stated, reprint edition (New Brunswick, NJ: Transaction, 1980). This section draws in part on my Introduction to that edition. 15 Ibid., 12. 16 Ibid. 17 Jean-Jacques Rousseau, ‘Discourse on the Arts and Sciences,’ in The Social Contract and Discourses, ed. G.D.H. Cole (London: Dent, 1913), 138. 18 Guild Socialism Re-Stated, 115–16. 19 This theme is particularly clear in Cole’s essay ‘Conflicting Social Obligations,’ Proceedings of the Aristotelian Society 15 (1915), 140–59. 20 Guild Socialism Re-Stated, 32–3. 21 John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 213. 22 Guild Socialism Re-Stated, 38–9. 23 Ibid., 72. 24 Brian Barry, The Liberal Theory of Justice (Oxford: Clarendon Press, 1973), 128–33. 25 Charles Beitz, Political Theory and International Relations, 2nd edition (Princeton: Princeton University Press, 1999), 136–43. 26 Ibid., 143–53. 27 This criticism is developed by Brian Barry in Democracy, Power and Justice (Oxford: Oxford University Press, 1989), 434–63. See also Charles Beitz, ‘Cosmopolitan Ideals and National Sentiment,’ Journal of Philosophy 80 (1983), 591–600. For a discussion of ‘interactionist’ and non-interactionist views, see Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral

Notes to pages 131–42

28 29 30 31 32 33 34 35 36 37 38

39 40 41

287

Foundations for International Law (Oxford: Oxford University Press, 2004), 83–98. Thomas Pogge, Realizing Rawls (Ithaca: Cornell University Press, 1989), 250–1. Here I turn to Thomas Pogge, ‘Cosmopolitanism and Sovereignty,’ Ethics 103 (1992), 48–75. Henry Shue, Basic Rights (Princeton: Princeton University Press, 1980). Pogge, ‘Cosmopolitanism,’ 58. Ibid., 67–9. Ibid., 65. Ibid., 68. Onora O’Neill, The Bounds of Justice (Cambridge: Cambridge University Press, 2000), especially chapters 9 and 10. Alexander Hamilton et al., The Federalist Papers (Toronto: Bantam, 1982), 81–3. In Political Morality (London: Continuum, 2001), chapter 4, I have argued that this is why democracy must be liberal. See especially here the work of David Held, for example ‘The Transformation of Political Community: Rethinking Democracy in the Context of Globalization,’ in Democracy’s Edges, ed. Ian Shapiro and Casiano HackerCordon (Cambridge: Cambridge University Press, 1999), 84–111. David Miller, On Nationality (Oxford: Clarendon Press, 1995). Yael Tamir, Liberal Nationalism (Princeton: Princeton University Press, 1993). Both concerns are succinctly and sceptically developed by Daniel Weinstock, ‘Prospects for Transnational Citizenship and Democracy,’ Ethics and International Affairs 15, no. 2 (2001), 53–66.

7 J.S. Mill’s Religion of Humanity 1 For some discussion, see chapter 9 below. 2 John Stuart Mill, Utilitarianism, On Liberty, Considerations on Representative Government, new edition (London: Dent [Everyman], 1972), 34. I follow convention in using this edition of Mill’s most familiar works: since I cite it so frequently, I employ in-text references to the page numbers. 3 This section compresses part of my ‘J.S. Mill and the Religion of Humanity,’ in Religion, Secularization and Political Thought, ed. James E. Crimmins (London: Routledge, 1990), 167–82. 4 John Stuart Mill, Collected Works, ed. John M. Robson (Toronto: University of Toronto Press, 1969–), vol. 10, 484. 5 See Linda C. Raeder, John Stuart Mill and the Religion of Humanity (Columbia:

288 Notes to pages 142–59

6 7 8 9 10 11 12 13

14 15 16 17 18 19 20 21 22

23 24 25 26 27

University of Missouri Press, 2002). According to Raeder (232), Mill’s scrupulously open-minded agnostic declarations were lures for naive Christians. They would, I think, have had to be very naive indeed, given Mill’s public reputation. Collected Works, vol. 10, 422. Ibid., 420, 421. Ibid., 488–9. For some discussion, see chapter 8 below. See U.C. Knoepflmacher, Religious Humanism and the Victorian Novel (Princeton: Princeton University Press, 1965), 10–14. Locke, Works (London: Tegg, 1823), vol. 6, 21. James Fitzjames Stephen, Liberty, Equality, Fraternity (Indianapolis: Liberty Fund, 1993), 40. Maurice Cowling, Mill and Liberalism, 2nd edition (Cambridge: Cambridge University Press, 1990), 93; Joseph Hamburger, ‘Religion and On Liberty,’ in A Cultivated Mind: Essays on J.S. Mill Presented to John M. Robson, ed. Michael Laine (Toronto: University of Toronto Press, 1991), 168. Essentially the same view is developed at book length by Linda C. Raeder (see note 5 above). Neil McCormick, Legal Right and Social Democracy (Oxford: Clarendon Press, 1982), 19. Richard Vernon, ‘Auguste Comte and “Development”: A Note,’ History and Theory 17 (1978), 323–6. Collected Works, vol. 8, 837. Collected Works, vol. 22 (1), 312–13, and vol. 10, 321–2. Richard Arneson, ‘Perfectionism and Politics,’ Ethics 111 (2000), 37–63. Ibid., 45, 52. Henry Shue, Basic Rights (Princeton: Princeton University Press, 1980). J.C. Rees, John Stuart Mill’s ‘On Liberty’ (Oxford: Clarendon Press, 1985), 173. See especially Ronald Dworkin, ‘Bakke’s Case: Are Quotas Unfair?’ in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), 293– 303. Richard Vernon, ‘John Stuart Mill and Pornography: Beyond the Harm Principle,’ Ethics 106 (1996), 621–32. Collected Works, vol. 18, 120. Ibid., 131. Ibid., 133. Barbara Herman, ‘The Scope of Moral Requirement,’ Philosophy and Public Affairs 30 (2002), 234.

Notes to pages 162–8

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8 Henri Bergson and the Moral Possibility of Nationalism 1 J.S. Mill, Representative Government, in Utilitarianism, On Liberty, Considerations on Representative Government (London: Dent [Everyman], 1972), 392. Mill goes on to say that a ‘distinction between what is due to a fellow-countryman and what is due merely to a human creature is more worthy of savages than of civilized beings, and ought, with the utmost energy, to be contended against,’ but that ‘in the present state of civilisation’ the aim cannot be advanced in multi-national states (393). 2 Henri Bergson, The Two Sources of Morality and Religion, trans. R. Ashley Audra and Cloudesley Brereton (Garden City, NY: Doubleday, 1935). References will be inserted in the text. 3 See Leszek Kolakowski, Bergson (Oxford: Oxford University Press, 1985), 72–4; A.R. Lacey, Bergson (London: Routledge, 1989), 197–215; John Mullarkey, Bergson and Philosophy (Edinburgh: Edinburgh University Press, 1999), 88–105. 4 See Dominique Schnapper, Community of Citizens, trans. Sévereine Rosée (New Brunswick, NJ: Transaction, 1998). 5 For Bergson’s work in connection with the League of Nations, see Philippe Soulez and Frédéric Worms, Bergson (Paris: Flammarion, 1997), 163–213. 6 Karl Popper, The Open Society and Its Enemies (London: Routledge and Kegan Paul, 1945), vol. 1, 202–3. 7 Ernest Renan, Discours et conférences (Paris: Calmann-Levy, 1887), 341–74. 8 Thomas Nagel, Equality and Partiality (New York: Oxford University Press, 1991), 4. 9 Philippe Van Parijs, Evolutionary Explanation in the Social Sciences (Totowa, NJ: Rowman and Littlefield, 1981). 10 Blaise Pascal, Pensées, trans. A.J. Krailsheimer (Harmondsworth: Penguin, 1966), 131. 11 This resembles Peter Singer’s idea of ‘the escalator of reason’ in How Are We to Live? (Amherst, NY: Prometheus Books, 1995), 225–33. As noted in the text below, however, other passages present imagination rather than reason as the escalator. 12 But for a crucially important qualification, see the third section below. 13 Andrew Oldenquist, ‘Loyalties,’ Journal of Philosophy 79 (1982), 173–93. 14 David Miller, On Nationality (Oxford: Clarendon Press, 1995), 53–5, and ‘The Limits of Cosmopolitan Justice,’ in International Society: Diverse Ethical Perspectives, ed. David R. Mapel and Terry Nardin (Princeton: Princeton University Press, 1998), 164–81.

290 Notes to pages 169–73 15 This does not mean that nations are natural. But it does mean that supranational organizations are possible only if they exclude someone. 16 See Schnapper, Community of Citizens, and Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1992). 17 Charles Renouvier, Manuel républicain de l’homme et du citoyen (Paris: Garnier, [1869] 1981). 18 Emil Durkheim, Moral Education, trans. Everett K. Wilson and Herman Schnurer (New York: Free Press, 1961). 19 Kolakowski, Bergson, 72–4. 20 Emil Durkheim, ‘Individualism and the Intellectuals,’ trans. with commentary by Steven Lukes, Political Studies 17 (1969), 26, emphasis added. 21 Durkheim, Moral Education, 74. 22 Emil Durkheim, Professional Ethics and Civic Morals, trans. Cornelia Brookfield (Glencoe: Free Press, 1958), 74, 59. 23 See La Signification de la guerre (Paris: Bloud et Gay, 1915). 24 Ellen Kennedy, Freedom and the Open Society (New York: Garland, 1987), 182. 25 Durkheim, Moral Education, 23. 26 This is not to imply that everyone is satisfied with defining the debate in terms of these distinctions: for a feminist dissent, see Kimberly Hutchings, ‘Feminist Politics and Cosmopolitan Citizenship,’ in Cosmopolitan Citizenship, ed. Kimberly Hutchings and Roland Dannreuther (Houndmills: Macmillan, 1999), 120–42. 27 See for example Robert Goodin, ‘What Is So Special about Our FellowCountrymen?’ Ethics 98 (1988), 663–86; Henry Shue, ‘Mediating Duties,’ Ethics 98 (1988), 687–704; Martha Nussbaum, ‘Patriotism and Cosmopolitanism,’ in For Love of Country, ed. Joshua Cohen (Boston: Beacon Press, 1996), 3–17; Simon Caney, ‘Individuals, Nations and Obligations,’ in National Rights, International Obligations, ed. Simon Caney et al. (Boulder: Westview, 1996), 119–38. 28 Often termed ‘particularists.’ But here I reserve the term ‘particularism’ for a quite different view of moral philosophy that stresses the particularity (rather than the partiality) of moral judgments; see Jonathan Dancy, Moral Reasons (Oxford: Blackwell, 1993). 29 See for example John Cottingham, ‘Ethics and Impartiality,’ Philosophical Studies 43 (1986), 357–73; Yael Tamir, Liberal Nationalism (Princeton: Princeton University Press, 1993); David Miller, On Nationality. Miller’s acceptance of human rights, however (On Nationality, 74), may place him among the ‘dualists.’ The labels are used here only for convenience. 30 See Nagel, Equality and Partiality, and Samuel Scheffler, Boundaries and

Notes to pages 174–82

31 32 33

34 35 36

37 38 39 40

41

42 43

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Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford: Oxford University Press, 2001). See chapter 6 above. Miller, On Nationality, 64–5. On the conditional value of emotional attachment – even from an apparently hostile Kantian perspective – see Marcia Baron, Kantian Ethics Almost without Apology (Ithaca: Cornell University Press, 1995). Miller, On Nationality, 52–8. Oldenquist, ‘Loyalties,’ 179–82. Richard Rorty, ‘Justice as a Larger Loyalty,’ in Cosmopolitics: Thinking and Feeling beyond the Nation, ed. Pheng Cheah and Bruce Robbins (Minneapolis: University of Minnesota Press, 1998), 45–58. See Shue, ‘Mediating Duties,’ for a parallel critique. Bernard Williams, Moral Luck (Cambridge: Cambridge University Press, 1981), 18. Christopher Heath Wellman, ‘Relational Facts in Liberal Political Theory: Is There Magic in the Pronoun “My”?’ Ethics 110 (2000), 561. Compare Jeremy Waldron, ‘When Justice Replaces Affection,’ in Liberal Rights (Cambridge: Cambridge University Press, 1993), 370–91, with John Hardwig, ‘Should Women Think in Terms of Rights?’ Ethics 85 (1984), 44– 55, and Ferdinand Schoeman, ‘Rights of Children, Rights of Parents, and the Moral Basis of the Family,’ Ethics 91 (1980), 6–19. As a Canadian, I find the example of Samuel LaSelva’s Moral Foundations of Canadian Federalism (Montreal: McGill-Queen’s University Press, 1996) particularly interesting: LaSelva’s thesis is that a particular idea of fraternity has moulded Canadian political development – of course, a very different matter from the unmediated impact of fraternity itself. In this respect, it may be worth repeating, with more emphasis, that Popper’s use of Bergson’s dualism entirely obliterated its point. ‘Constant protest’ is Mill’s phrase, in Utilitarianism: Utilitarianism, On Liberty, and Considerations on Representative Government, 33.

9 What Is Crime against Humanity? 1 Hannah Arendt, letter to Karl Jaspers, quoted in Aryeh Neier, War Crimes (New York: Random House, 1998), 221. 2 Judith N. Shklar, Legalism (Cambridge, MA: Harvard University Press, 1964), 151–70. 3 John Stuart Mill, Essays on Equality, Law and Education (Toronto: University of Toronto Press, 1984), 109 (Collected Works, vol. 21).

292

Notes to pages 182–5

4 Laurence Thomas, ‘Forgiving the Unforgivable?’ in Moral Philosophy and the Holocaust, ed. Eve Garrard and Geoffrey Scarre (London: Ashgate Press, 2003). 5 See J.M. Coetzee, The Lives of Animals (Princeton: Princeton University Press, 1999). Several writings by Richard Rorty support a similar view: see for example ‘Human Rights, Rationality, and Sentimentality,’ in On Human Rights, ed. Stephen Shute and Susan Hurley, (New York: Basic Books, 1993), 111–34. Martin Amis’s novel Time’s Arrow (New York: Penguin, 1993) provides an example: we may read it as showing that the Holocaust would make sense only in a world in which every temporal relationship and consequently every moral relationship had been inverted. 6 See Martha Finnemore, ‘Constructing Norms of Humanitarian Intervention,’ in The Culture of National Security, ed. Peter J. Katzenstein (New York: Columbia University Press, 1996), 153–85. 7 For full-length historical accounts see M. Cherif Bassiouni, Crimes against Humanity in International Law (Dordrecht: Martinus Nijhoff, 1992), and Geoffrey Robertson, Crimes against Humanity (London: Allen Lane, 1999). Shorter but useful earlier accounts include Egon Schwelb, ‘Crimes against Humanity,’ British Yearbook of International Law 23 (1946), 178–226, and George A. Finch, ‘The Nuremberg Trial and International Law,’ American Journal of International Law 41 (1947), 20–35. 8 See Beth Van Schaack, ‘The Definition of Crimes against Humanity: Resolving the Incoherence,’ Columbia Journal of Transnational Law 37 (1999), 787–850. 9 Robertson, Crimes against Humanity, 375. 10 Ibid., 195, 216–17; also Gerhard von Glahn, Law among Nations, 7th edition (Boston: Allyn and Bacon, 1996), 258. 11 Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999). See especially chapter 3, which discusses many formal provisions for the transnational protection of minorities from the seventeenth century on. 12 Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), 107. 13 See Christian Reus-Smit, The Moral Purpose of the State (Princeton: Princeton University Press, 1999), for an account of the moral permeability of states in currently embedded ideas. 14 Beth Van Schaack (‘Definition of Crimes,’ 795) maintains that ‘the timehonored doctrine of humanitarian intervention could have provided adequate precedent for the international prosecution of crimes against humanity.’ In support of time-honouredness, one might note that Grotius (The Law of War and Peace, trans. Francis W. Kelsey [Indianapolis: Bobbs-

Notes to pages 185–91

15 16

17

18

19 20 21 22 23 24 25 26 27

28 29

30 31 32

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Merrill, 1925], 506) quotes approvingly a passage from St Augustine apparently favouring intervention. Hannah Arendt, Eichmann in Jerusalem, revised edition (New York: Viking, 1964), 261. As Laurence Thomas has pointed out to me, this statement needs refinement. The victims may be offered a choice – as for example the Spanish Inquisition offered Jews the choice to convert. I think that in such cases the crime would lie in the terroristic means used in order to compel ‘choice.’ See also the discussion of choices in section V below. Schwelb, ‘Crimes against Humanity,’ 195. However, Schwelb’s account also contains examples of other uses of the term, referring (for example) to the human race. Jonathan Glover, Humanity: A Moral History of the Twentieth Century (London: Pimlico, 2001). This is also the sense of the term criticized by Richard Rorty in Contingency, Irony and Solidarity (Cambridge: Cambridge University Press, 1989), 189. Arendt, Eichmann, 275. Robertson, Crimes against Humanity, 207, 221–2. James P. Sterba, ‘Understanding Evil: American Slavery, the Holocaust, and the Conquest of the American Indians,’ Ethics 106 (1996), 424–48. Gerard Prunier, ‘A Well-Planned Genocide,’ Times Literary Supplement, 22 October 1999, 30. See Glover, Humanity, 64–8, for the importance of distancing. See Albert Breton and Ronald Wintrobe, ‘The Bureaucracy of Murder Revisited,’ Journal of Political Economy 94 (1986), 905–26. Myres S. McDougal and associates, Studies in World Public Order (New Haven: Yale University Press, 1960), 335–403, 987–1019. Joseph Berry Keenan and Brendan Francis Brown, Crimes against International Law (Washington, DC: Public Affairs Press, 1950), 163. Samuel Clark, ‘International Competition and the Treatment of Minorities: Seventeenth-Century Cases and General Propositions,’ American Journal of Sociology 103 (1998), 1267–1308. Quoted in Arendt, Eichmann, 257. Ibid., 268–9. The theme of ‘sharing the earth’s surface’ seems like an echo of Kant: see Kant: Political Writings, ed. Hans Reiss (Cambridge: Cambridge University Press, 1970), 106. Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 1–3, 50–1. Arendt, Eichmann, 262–3, 273, 276. One might note, in this connection, the special significance that often

294

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34

35

36

Notes to pages 191–3

seems to be attached to cruelties taking place in Europe. In a lecture given while the siege of Sarajevo was under way, Steven Lukes – calling for intervention – noted that atrocities were occurring ‘within the very walls of modern, civilized Europe.’ ‘Five Fables about Human Rights,’ in On Human Rights, ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1993), 39. Similarly – though from a very different political standpoint – George Kennan, in an interview given during the bombing of Kosovo, qualified his opposition to humanitarian intervention in the case of European atrocities: ‘Serbian atrocities strike at the root of a European civilization of which we are still largely a part.’ Richard Ullman, ‘The United States and the World: An Interview with George Kennan,’ New York Review of Books, 12 August 1999, 6. Such views lend some weight to the ‘cartelization’ prospects mentioned in the text. In ‘A Theory of Crimes against Humanity,’ Yale Journal of International Law 29 (2004), 115–16n, David Luban points out that for Arendt plurality and diversity are more closely linked, through the element of ‘creativity,’ than I have allowed. While I take that point, it seems important to make the distinction clearly in view of discussions of the ‘discriminatory’ element in crime against humanity, i.e. whether or not its target must be an ascriptive group. See below, section V, for some discussion. See for example Sir William Blackstone, The Sovereignty of the Law, ed. Gareth Jones (London: Macmillan, 1973), 56–7; H.F. Jolowicz, Roman Foundations of Modern Law (Oxford: Clarendon Press, 1957), 49–53; Sir Thomas Erskine Holland, The Elements of Jurisprudence (Oxford: Clarendon Press, 1924), 378–90. See for example Human Rights in Global Politics, ed. Tim Dunne and Nicholas J. Wheeler (Cambridge: Cambridge University Press, 1999). In trying to disconnect the discussion of crime against humanity from substantive political and social theories I am in implicit disagreement with Norman Geras’s book (discussed briefly below), The Contract of Mutual Indifference (London: Verso, 1998). For Geras claims that if we reject ‘indifference’ to the fate of persecuted others we will be led from liberalism to socialism. This raises many questions, and I shall simply state here my view that the conviction that crime against humanity is wrong seems to me to be more secure than the arguments that convince me that socialism is right. Prunier, ‘A Well-Planned Genocide,’ 30; see also Philip Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed with All Our Families (New York: Picador, 1998), 95; Helen M. Hintjens, ‘Explaining the 1994 Genocide in Rwanda,’ Journal of African Studies 37 (1999), 245; David Newbury, ‘Understanding Genocide,’ African Studies Review 41 (1998), 76; Neier, War Crimes,

Notes to pages 193–8

37 38 39 40

41

42

43 44 45 46

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219. It is often recognized that state criminality is an essential component – see for example Robertson, Crimes against Humanity, 224, and David Luban’s construct, ‘the criminal state,’ in Legal Modernism (Ann Arbor: University of Michigan Press, 1994), chapter 5. Some delegates to the Genocide Convention in 1948 objected to making state action or complicity essential to the crime, since terrorist organizations can commit genocide: see Leo Kuper, Genocide: Its Political Use in the Twentieth Century (New Haven: Yale University Press, 1981), 37–8. On the argument developed here, ‘unofficial genocide’ would not be a crime against humanity, since (some elements of) two components other than sheer capacity are required. Avishai Margalit and Gabriel Motzkin, ‘The Uniqueness of the Holocaust,’ Philosophy and Public Affairs 25 (1996), 65–83. Geras, The Contract of Mutual Indifference. Ibid., 34. This seems particularly relevant in the case of the crime of forcible transfers of population (Rome Statute, article 7.1.d). Territorial security is not a good candidate for an individual right; as Rousseau (reasonably) points out (in the Discourse on Inequality), in a state of nature one might be obliged to leave one’s chosen tree at any time. But if whole populations are uprooted by states that have the resources to obliterate the natural patterns of group life and the strong attachments to place that they always generate, then the uprooted are worse off than in the worst-off state-of-nature scenario. David Luban points out (‘A Theory of Crimes against Humanity,’ 94) that states may exercise power over people who are not its citizens, such as colonial subjects and people in occupied territories. I think that there is an intermediate area in which some but not all of the incidents of crime against humanity, as I have defined it, may obtain. In the case of military occupation, for example, while state capacity is a necessary condition the elements of international recognition and popular trust may well not exist. When international opinion is divided, and/or when the population’s view is divided (some welcoming, some resisting, occupation) we are in a particularly grey area. See the Final Draft Text of the Elements of Crimes, adopted by the Preparatory Commission for the International Criminal Court (30 June 2000), article 7, note 6. See David Luban’s remark about ‘charnel house casuistry’ in Legal Modernism, 344. Quoted in Kuper, Genocide, 19–20. Ibid., 24–30. Sydney L. Goldenberg, ‘Crimes against Humanity – 1945–70,’ University of

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Notes to pages 198–203

Western Ontario Law Review 10 (1971), 1–55. A more substantive objection is that modelling the offence so closely on the South African case excludes non-racially based but similarly objectionable arrangements, such as caste systems. 47 Ronald C. Slaye, ‘Apartheid as a Crime against Humanity,’ Michigan Journal of International Law 20 (1999), 267–300. 48 See William J. Fenrick, ‘Should Crimes against Humanity Replace War Crimes?’ Columbia Journal of Transnational Law 37 (1999), 767–85. On the relation between the two categories, see also Neier, War Crimes, 17. 49 Jean-Jacques Rousseau, Political Writings, ed. C.E. Vaughan (Oxford: Blackwell, 1962), vol. 1, 365. 10 On Special Ties (1): Jesus or Polemarchus? 1 John Cottingham, ‘Partiality, Favouritism and Morality,’ Philosophical Quarterly 36 (1986), 357. 2 John Cottingham, ‘Ethics and Impartiality,’ Philosophical Studies 43 (1983), 83. 3 Ibid., 98. 4 Jonathan Dancy, Moral Reasons (Oxford: Blackwell, 1993). 5 Ibid., 65. 6 Christina Hoff Sommers, ‘Filial Morality,’ Journal of Philosophy 83 (1986), 455. 7 Andrew Oldenquist, ‘Loyalties,’ Journal of Philosophy 79 (1982), 173–93. 8 William Godwin, Enquiry Concerning Political Justice, ed. K. Codell Carter (Oxford: Clarendon Press, 1971), 70–3. Many of the recent discussions depend on the reading offered by Bernard Williams, in Moral Luck, (Cambridge: Cambridge University Press, 1981), 1–19: for a view that Williams’s reading is open to correction, see Brian Barry, Justice as Impartiality (Oxford: Clarendon Press, 1995), 222–33. 9 Oldenquist, ‘Loyalties,’ 186. 10 Cottingham, ‘Ethics and Impartiality,’ 86. 11 Ibid., 96. 12 Barry, Justice as Impartiality, 191–5. 13 Peter Singer, Practical Ethics (Cambridge: Cambridge University Press, 1979), 12, as quoted in Cottingham, ‘Ethics and Impartiality,’ 86. 14 See David Archard, ‘Moral Partiality,’ in Midwest Studies in Philosophy, Volume XX: Moral Concepts, ed. Peter A. French et al. (Notre Dame: University of Notre Dame Press, 1996), 129–41. 15 Is this ‘government house’ impartialism? What is objectionable about

Notes to pages 204–7 297

16 17 18 19 20 21 22 23 24 25

26 27

28

29 30 31 32 33

34

‘government house’ philosophy is that the views of the colonial rulers and the motives of the native agents are incompatible, so that there is an element of deception or even manipulation. But there is no incompatibility between friendship, justified in terms of second-order impartialism, and first-order impartialism. Cottingham, ‘Ethics and Impartiality,’ 87. Ibid., 94. Cottingham, ‘Partiality, Favouritism and Morality,’ 365, 369. Ibid., 365. Ibid., 366. Oldenquist, ‘Loyalties,’ 181. I think this is what David Archard means by saying that the object of loyalty is a ‘group as a whole’: ‘Moral Partiality,’ 132 Oldenquist, ‘Loyalties,’ 177. Ibid., 179. Cottingham, ‘Partiality, Favouritism and Morality,’ 360. David Archard (‘Moral Partiality,’ 132) points out that even if the surmise is true, the Kantians’ choice would reflect a moral weakness rather than revealing anything about their moral view. Oldenquist, ‘Loyalties,’ 177. Cottingham, ‘Partiality, Favouritism and Morality,’ 373. Compare, however, ‘Ethics and Impartiality,’ 84, where it appears that impartiality can operate only within a given class. Richard Rorty, ‘Justice as a Larger Loyalty,’ in Cosmopolitics: Thinking and Feeling beyond the Nation, ed. Pheng Cheah and Bruce Robbins (Minneapolis: University of Minnesota Press, 1998), 47. Cottingham, ‘Ethics and Impartiality,’ 92. Oldenquist, ‘Loyalties,’ 180. See the discussion of Wollstonecraft in chapter 3 above. Oldenquist, ‘Loyalties,’ 181–2. See Richard Dagger, ‘Rights, Boundaries and the Bonds of Community: A Qualified Defense of Moral Parochialism,’ American Political Science Review 79 (1985), 436–47; Robert Goodin, ‘What Is So Special about Our FellowCountrymen?’ Ethics 98 (1988), 663–86; Christopher Heath Wellman, ‘Relational Facts in Liberal Political Theory: Is There Magic in the Pronoun ‘My’?’ Ethics 110 (2000), 537–62. Oldenquist, ‘Loyalties,’ 185–6. Note that here his argument and Cottingham’s diverge, for Cottingham accepts what is here termed ‘iterative loyalty’: ‘Ethics and Impartiality,’ 95, ‘Partiality, Favouritism and Morality,’ 359.

298

Notes to pages 208–16

35 Alasdair MacIntyre, ‘Is Patriotism a Virtue?’ in Theorizing Citizenship, ed. Ronald Beiner (Albany: SUNY Press, 1995). 36 Philip Pettit and Robert Goodin, ‘The Possibility of Special Duties,’ Canadian Journal of Philosophy 16 (1986), 651–76. 37 Philip Pettit, ‘The Paradox of Loyalty,’ American Philosophical Quarterly 25 (1988), 163–71. 38 Pettit and Goodin, ‘The Possibility of Special Duties,’ 665–9. 39 Pettit, ‘The Paradox of Loyalty,’ 163. 40 Ibid., 164–5. 41 Pettit and Goodin, ‘The Possibility of Special Duties,’ 658. 42 Andrew Mason, ‘Special Obligations to Compatriots,’ Ethics 107 (1997), 446. 43 See Wellman, ‘Relational Facts,’ 561. 44 Aristotle, Ethics, ed. and trans. J.A.K. Thomson (Harmondsworth: Penguin, 1953), 199. 45 Pettit, ‘The Paradox of Loyalty,’ 164. 46 Dagger, ‘Rights, Boundaries and the Bonds of Community,’ 442: see Sommers, ‘Filial Morality,’ 443. 47 Henry Shue, ‘Mediating Duties,’ Ethics 98 (1988), 693. 48 Goodin, ‘What Is So Special about Our Fellow-Countrymen?’ 680–1. 49 See for example David Miller, On Nationality (Oxford: Clarendon Press, 1995), 62. 50 See Dagger, ‘Rights, Boundaries and the Bonds of Community,’ 444–5. 51 Goodin, ‘What Is So Special about Our Fellow-Countrymen?’ 675–8. 52 Mason, ‘Special Obligations to Compatriots,’ 434–7. 53 Ibid., 442. 54 Wellman, ‘Relational Facts,’ 546–7. 55 See for example Thomas Pogge, ‘Cosmopolitanism and Sovereignty,’ Ethics 103 (1992), 48–75, discussed in chapter 6 above. 56 On this point see especially Wellman, ‘Relational Facts,’ 552–3. 57 Oldenquist, ‘Loyalties,’ 176–7. 58 Cottingham, ‘Partiality, Favouritism and Morality,’ 371. In this respect both Oldenquist and Cottingham are to be distinguished from the argument advanced by Yael Tamir, Liberal Nationalism (Princeton: Princeton University Press, 1993), 102: here Tamir claims that the morally obnoxious do have loyalties to one another, but that they are overridable. 59 On this topic see David Archard, ‘Myths, Lies and Historical Truths: A Defence of Nationalism,’ Political Studies 43 (1995), 472–81. 60 Andrew Mason, ‘Special Obligations to Compatriots,’ 42–3, also Wellman, ‘Relational Facts,’ 549–51. 61 Williams, Moral Luck, 18.

Notes to pages 216–22

299

62 Barry, Justice as Impartiality, 231–2. 63 Alan Gewirth, ‘Ethical Universalism and Particularism,’ Journal of Philosophy 85 (1988), 298. 64 Ibid., 297. 65 Oldenquist, ‘Loyalties,’ 173, emphases added. 66 Cottingham, ‘Ethics and Impartiality,’ 90. 67 For an even clearer example, see Richard Rorty, ‘Human Rights, Rationality and Sentimentality,’ in On Human Rights, ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1993), 111–34. 68 Oldenquist, ‘Loyalties,’ 186–7. Cottingham (‘Partiality, Favouritism and Morality,’ 357) also speaks of ‘contempt’ in a very similar context. 69 Barry, Justice as Impartiality, 224. 70 See Ferdinand Schoeman, ‘Rights of Children, Rights of Parents, and the Moral Basis of the Family,’ Ethics 91 (1980), 6–19. 71 See, however, Wellman, ‘Relational Facts,’ 555–60, for a critique of relying on ‘ought implies can’ in the context of motivation. 72 Thomas Nagel, Equality and Partiality (New York: Oxford University Press, 1991), 10. 73 Ibid., 11. 74 Ibid., 25. 75 This point is also made by Jeff McMahan, ‘The Limits of National Partiality,’ in The Morality of Nationalism, ed. Robert McKim and Jeff McMahan (New York: Oxford University Press, 1997), 112. 76 Oldenquist, ‘Loyalties,’ 174. 77 Ibid., 176. 78 Ibid., 174, 175. 79 Nagel, Equality and Partiality, 24. 80 Joseph Heath, The Efficient Society (Toronto: Penguin, 2001). 81 Iseult Honahan, ‘Friends, Strangers or Countrymen? The Ties between Citizens as Colleagues,’ Political Studies 49 (2001), 51–69. 82 Cottingham, ‘Partiality, Favouritism and Morality,’ 361, Shue, ‘Mediating Duties,’ 691–3; see also Honahan, ‘Friends, Strangers or Countrymen?’ 61–2. 83 Nagel, Equality and Partiality, 95, 110. 84 See the discussion of Bergson in chapter 8 above. 85 In ‘Gilligan and Kohlberg: Implications for Moral Theory,’ Ethics 98 (1998), 480–1, Lawrence A. Blum objects to the filtering or testing model on the grounds that it places the desire to care for a child on the same ground as desire for an ice cream cone, until reasoned morality has performed its testing function. But surely we could distinguish between the two simply on

300 Notes to pages 222–9

86 87 88

89 90 91

the grounds that concern for others is a necessary condition for the moral status of a desire. Marcia Baron’s phrase, in Kantian Ethics Almost without Apology (Ithaca: Cornell University Press, 1995), 117–45. Ibid., 122. Samuel Scheffler, Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford: Oxford University Press, 2001), 102. Scheffler’s argument is discussed in the Conclusion below. Baron, Kantian Ethics Almost without Apology, 126. Ibid., 137. See the Conclusion below for further discussion.

11 On Special Ties (2): What Do We Owe? 1 See the critique by Robert Goodin in Protecting the Vulnerable (Chicago: University of Chicago Press, 1985), chapter 3. 2 See for example David Miller, On Nationality (Oxford: Clarendon Press, 1995), chapter 2. 3 Alasdair MacIntyre, ‘Is Patriotism a Virtue?’ in Theorizing Citizenship, ed. Ronald Beiner (Albany: SUNY Press, 1995), 224. 4 See Elazar Barkan, The Guilt of Nations (New York: Norton, 2000). 5 For example by Onora O’Neill, ‘Rights to Compensation,’ in Equal Opportunity, ed. E.F. Paul et al. (Oxford: Blackwell, 1987), 72–87; A. John Simmons, ‘Historical Rights and Fair Shares,’ Law and Philosophy 14 (1995), 149–84. 6 See David Lyons, ‘The New Indian Claims and Original Rights to Land,’ in Reading Nozick, ed. Jeffrey Paul (Oxford: Blackwell, 1981), 355–79, and Stephen Kershnar, ‘Are the Descendants of Slaves Owed Compensation for Slavery?’ Journal of Applied Philosophy 16 (1999), 95–101. 7 Lyons, ‘New Indian Claims.’ 8 Janna Thompson, ‘Historical Obligations,’ Australasian Journal of Philosophy 78 (2000), 338–9. Thompson’s argument is expanded in a later book, Taking Responsibility for the Past (Cambridge: Polity, 2002). 9 Jeremy Waldron, ‘Superseding Historic Injustice,’ Ethics 103 (1992), 14. 10 See Charles Taylor, ‘The Politics of Recognition,’ in Multiculturalism, ed. Amy Gutmann (Princeton: Princeton University Press, 1994), 25–73; Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990), chapter 1. 11 I owe this terminology to Kish Vinayagamoorthy. 12 David Miller, ‘Distributing Responsibilities,’ Journal of Political Philosophy 9 (2001), 458.

Notes to pages 229–39

301

13 G.F. Gaus, ‘Does Compensation Restore Equality?’ in Compensatory Justice, ed. John W. Chapman (New York: New York University Press, 1991), 74. 14 Waldron, ‘Superseding Historic Injustice,’ 6–7. 15 Shelly Kagan, ‘Causation and Responsibility,’ American Philosophical Quarterly 25 (1988), 293–302. 16 One of the Press’s anonymous referees asks me to consider the case in which A2 runs away and V1 drowns while A1 is rescuing V2. A1 would still be responsible for the killing of V1. This gives me the opportunity, for which I am thankful, to say that ‘historical’ connections between culprit and victim are important for questions of liability and punishment. I am concerned only to weaken their importance for questions of restitution. 17 O’Neill, ‘Rights to Compensation,’ 74–5. 18 Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), 218–19. 19 Jeffrie G. Murphy and Jules L. Coleman, Philosophy of Law (Boulder, CO: Westview, 1990), 160–1. 20 Robert Sparrow, ‘History and Collective Responsibility,’ Australasian Journal of Philosophy 78 (2000), 346–59. 21 Duncan Ivison, ‘Political Community and Historic Injustice,’ Australasian Journal of Philosophy 78 (2000), 360–73. 22 Ibid., 371. 23 Ibid., 361. 24 Aristotle, Ethics, ed. and trans. J.A.K. Thomson (Harmondsworth: Penguin, 1953), 148–9. 25 James Nickel, ‘Justice in Compensation,’ William and Mary Law Review 18 (1976), 379. 26 C. Shea, ‘A Legendary Friendship,’ Lingua Franca (February 2000), 47–55. 27 A. John Simmons, ‘Historical Rights and Fair Shares,’ Law and Philosophy 14 (1995), at 157–8. 28 Randy Barnett, ‘Restitution: A New Paradigm of Criminal Justice,’ Ethics 87 (1977), 279–301. 29 James Fishkin, ‘Justice between Generations: Compensation, Identity and Group Membership,’ in Compensatory Justice, ed. Chapman, 95. 30 Aristotle, The Politics, trans. T.A. Sinclair (Harmondsworth: Penguin, 1962), 106. 31 Larry May, The Morality of Groups (Notre Dame: University of Notre Dame Press, 1987), 73–111. 32 Murphy and Coleman, Philosophy of Law, 143–80; T. Cowen, ‘Discounting and Restitution,’ Philosophy and Public Affairs 26 (1997), 168–85. 33 Barkan, The Guilt of Nations, 308–49.

302 34 35 36 37 38 39 40 41 42 43 44 45

Notes to pages 239–47

Simmons, ‘Historical Rights and Fair Shares,’ 156–65. Barkan, The Guilt of Nations, 88–111. Barnett, ‘Restitution.’ Samuel Scheffler, Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford: Oxford University Press, 2001), 99. David Lyons, ‘The New Indian Land Claims and Original Rights to Land,’ in Reading Nozick, ed., Jeffrey Paul (Oxford: Blackwell, 1981), 355–79. Joel Feinberg, ‘Collective Responsibility,’ Journal of Philosophy 65 (1968), 674–88. Miller, On Nationality, 63–4. Robert Goodin, ‘What Is So Special about Our Fellow-Countrymen?’ Ethics 98 (1988), 663–86. Miller, On Nationality, 62. Ferdinand Schoeman, ‘Rights of Children, Rights of Parents, and the Moral Basis of the Family,’ Ethics 91 (1980), 6–19. Simmons, ‘Historical Rights and Fair Shares,’ 173. Ibid., 174.

Conclusion: On Associative Duties 1 Ronald Dworkin, Law’s Empire (London: Fontana, 1986), 196. 2 Martha Nussbaum, ‘Patriotism and Cosmopolitanism,’ in For Love of Country, ed. Joshua Cohen (Boston: Beacon Press, 1996), 13. 3 Susan Mendus, Impartiality in Moral and Political Philosophy (Oxford: Oxford University Press, 2002), 79–80. 4 Steven Lukes, Liberals and Cannibals (London: Verso, 2003), 22. 5 David Miller, ‘The Limits of Cosmopolitan Justice,’ in International Society: Diverse Ethical Perspectives, ed. David R. Mapel and Terry Nardin (Princeton: Princeton University Press, 1998), 166–7. 6 Samuel Scheffler, Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford: Oxford University Press, 2001), 35, 100 (emphasis added). 7 Michael McConnell, ‘Don’t Neglect the Little Platoons,’ in For Love of Country, ed. Cohen, 80. 8 Nussbaum, ‘Patriotism and Cosmopolitanism,’ 143. 9 Jeremy Waldron, ‘Minority Cultures and the Cosmopolitan Alternative,’ in The Rights of Minority Cultures, ed. Will Kymlicka (Oxford: Oxford University Press, 1995), 107. 10 Sissela Bok, ‘From Part to Whole,’ in For Love of Country, ed. Cohen, 38–44. 11 Norman Geras, Solidarity in the Conversation of Mankind: The Ungroundable

Notes to pages 248–64

12 13 14 15

16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33

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Liberalism of Richard Rorty (London: Verso, 1995), especially chapter 1. See also the evidence gathered in Kristen Renwick Monroe, The Heart of Altruism: Perceptions of a Common Humanity (Princeton: Princeton University Press, 1996). United Nations Human Rights Website, www.ohcr.org, accessed 16 June 2004: Communication No. 694/1996. Scheffler, Boundaries and Allegiances, 64. Ibid., 118. See Jeff McMahan, ‘The Limits of National Partiality,’ in The Morality of Nationalism, ed. Robert McKim and Jeff McMahan (New York: Oxford University Press, 1997), 118. James Rachels, ‘Punishment and Desert,’ in Ethics in Practice, ed. Hugh LaFollette (Oxford: Blackwell, 2000), 470–9. Scheffler, Boundaries and Allegiances, 108–9. Niko Kolodny, ‘Do Associative Duties Matter?’ Journal of Political Philosophy 10 (2002), 250–66. Scheffler, Boundaries and Allegiances, 102. Ibid., 64. Susan Wolf, ‘Morality and Partiality,’ Philosophical Perspectives 6 (1992), 258. Mendus, Impartiality, 4. Bernard Williams, Morality (Cambridge: Cambridge University Press, 1972), 17–27. Robert Goodin, ‘What Is So Special about Our Fellow-Countrymen?’ Ethics 98 (1988), 663–86. Frederick M. Barnard, ‘Patriotism and Citizenship in Rousseau,’ Review of Politics 46 (1984), 244–65. See Richard Vernon, The Career of Toleration: John Locke, Jonas Proast, and After (Montreal: McGill-Queen’s University Press, 1997), chapter 5. Mill, Collected Works, ed. John M. Robson (Toronto: University of Toronto Press, 1969–), vol. 18, 129. Elizabeth Ashford, ‘The Demandingness of Scanlon’s Contractualism,’ Ethics 113 (2003), 273–302. John Hardwig, ‘Should Women Think in Terms of Rights?’ Ethics 85 (1984), 44–55. Robert Goodin, Protecting the Vulnerable (Chicago: University of Chicago Press, 1985), 34. Ibid., chapter 3. Peter Jones, Philosophy and the Novel (Oxford: Clarendon Press, 1975), chapter 1. Jeremy Waldron, ‘When Justice Replaces Affection,’ in Liberal Rights (Cambridge: Cambridge University Press, 1993), 370–91.

304

Notes to pages 264–8

34 Michael J. Meyer, ‘Rights between Friends,’ Journal of Philosophy 89 (1992), 481. 35 Andrew Mason, ‘Special Obligations to Compatriots,’ Ethics 107 (1997) 442, 446. 36 For a critique, see Christopher Heath Wellman, ‘Friends, Compatriots, and Special Political Obligations,’ Political Theory 29 (2001), 217–36. 37 Christopher Heath Wellman, ‘Relational Facts in Liberal Political Theory: Is There Magic in the Pronoun “My”?’ Ethics 110 (2000), 545–9. 38 Stephen Holmes and Cass R. Sunstein, The Cost of Rights (New York: Norton, 1999). 39 See Henry Shue, Basic Rights, 2nd edition (Princeton: Princeton University Press, 1996), chapters 1 and 2; Charles Jones, Global Justice (Oxford: Oxford University Press, 1999), chapter 3. 40 See also Jones, Global Justice, chapter 8. 41 See Jeremy Waldron, ‘A Right to Do Wrong,’ Ethics 92 (1981), 21–39.

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Index 321

Index

Antigone, 4, 107, 205, 254 Apartheid, 197–8 Arendt, Hannah, 181, 183, 185, 187–8, 190–1 Aristotle, 211–12, 235, 237 Arneson, Richard, 147–8, 159 associative duties, 13; authority of, 249–52; predictability of, 247–9; and socialization thesis, 246–7. See also special ties atomism, Locke and, 15, 21, 261 Augustine, St, 22, 184 Barnard, Frederick, 260 Baron, Marcia, 223 Barry, Brian, 129, 216 Bayle, Pierre, 16, 20, 28–31, 37 Beitz, Charles, 130–1 Benhabib, Seyla, 95 Bergson, Henri, 11; and cosmopolitanism, 166–8, 175, 265; on intelligence, 166–9; on justice, 167; and the League of Nations, 181; on open and closed societies, 163–9; and nations, 167, 172–7, 247 Berlin, Isaiah, 5 Bielefeldt, Heiner, 19

Bossuet, Jacques Benigne, 43 Brown, Brendan, 189 care, ethic of, 10, 97–9, 105, 112–18 Cicero, 5 citizens, ties among, 3, 8, 13–14, 15, 57, 138, 214–16 citizenship: Cole on, 126–9; Comte and, 83; multiple form of, 120–1, 132–6; Proudhon and, 121– 4; reciprocity and, 138 Clark, Samuel, 189 Cole, G.D.H., 124–9, 132 compatriots, duties towards, 48, 212–16 Comte, Auguste: and ethic of care, 89–90, 97; and cosmopolitanism, 81–2; idea of ‘humanity,’ 83, 206; and personal identity, 86–7, 92, 96–7; on rights, 83, 91–7; and the state, 84–6, 87; and women, 83, 88–90. See also Eliot, George contractualism, 11, 30, 35, 160, 198, 263, 270, 412 corruption, idea of, 73, 124 cosmopolitanism: Bergson and, 166– 8, 175, 265; Comte and, 81–2; Eliot

322

Index

and, 103; Enlightenment and, 81, 217; Locke and, 7, 32–3, 38, 250; moral and political forms of, 173–4, 215–16, 265; Rousseau on, 47, 257; Stoics and, 46; Wollstonecraft and, 71–2, 79 Cottingham, John, 201–2, 204–5, 215 crime against humanity, 12, 267–8; evil of, 191–6; and genocide, 197; inhumanity of, 186–8; jurisdiction over, 183–6; offence to world, 189–91; the state and, 192–5; and war crimes, 195, 198 Dancy, Jonathan, 98, 201–2 Dickens, Charles, 4 Diderot, Denis, 44, 49 difference, politics of, 73–80 dualism, moral, 173, 177, 219–22 Durkheim, Emil, 41, 143, 169–72, 267 Dworkin, Ronald, 154, 244 Eliot, George, 10; and care, 100–4; and Comte, 99–104, 114, 118; and justice, 104–8; on nationality, 116– 17; particularism, supposed, 96, 114–18; and religion of humanity, 104, 114, 143; on trust, 106, 262 Epictetus, 61, 64 family values, 219 federalism, 120, 122–3, 135–6, 174 Feinberg, Joel, 91, 93, 232–3 Forster, E.M., 4 friends, ties among, 3; civic relationship and, 8, 40, 57, 264–6; and love, 61, 65; partiality and, 26, 202–4, 221; rights and, 13–14, 264 Gay, Peter, 59

Geras, Norman, 193–4, 247 Gewirth, Alan, 217 Gilligan, Carol, 98–9, 100, 104 Glover, Jonathan, 186 Godwin, William, 8, 78, 202; ‘famous fire case,’ 222 Goodin, Robert, 208–9, 213, 258, 262 Grotius, Hugo, 43–4 Heath, Joseph, 221 Herman, Barbara, 159 Hill, Lisa, 59 Holocaust, 188, 193, 196 humanity, competing ideas of, 140–1, 161, 181–91, 247, 260 impartiality: and affection, 249–52; critiques of, 223, 229–30; first- and second-order, 203, 206–9, 222, 246 Ivison, Duncan, 234–5, 243 Jones, Charles, 8 Jones, Peter, 263 Kagan, Shelly, 230 Kant, Immanuel, Kantianism, 7, 51, 72, 81, 115, 140–1, 165, 168, 190, 202–5 Kilcullen, John, 31–2 Kohlberg, Lawrence, 98–9, 104 Kolakowski, Leszek, 170 Kolodny, Niko, 252–3 Kuhn, Thomas, 77 Levi-Strauss, Claude, 77–8 Locke, John, 7, 8–9; on conscience, 16, 20, 24, 26–30, 32–3, 36; cosmopolitanism of, 32–3, 38, 200; and disagreement, 266–7; Mill and, 144, 147, 260; neighbourhood,

Index 323 idea of, 33–4, 261; on partiality, 15–16, 21–3, 26–8, 36, 38, 42, 222; on trust, 21–3, 259; Protestantism and, 16–20, 24; on toleration, 19–26 love, morality and, 114–16, 222–3, 255–6 loyalty, 204–6 Lukes, Steven, 245 Lyons, David, 228, 240 Machiavelli, Niccolo, 65 MacIntyre, Alasdair, 59, 76, 226, 243, 246 Margalit, Avishai, 193 Marx, Karl, 119, 125, 248 Mason, Andrew, 214 McCormick, Neil, 146 McDougal, Myers, 189 Mendus, Susan, 71–2, 73, 245, 256–7 Mill, John Stuart: and Comte, 83, 86; on freedom, 41, 159–61; and harm, 157; humanity, idea of, 11, 140, 161; on justice, 149–55; and Locke, 144, 147, 260; and nationality, 162; on paternalism, 155–6; perfectionism of, 147–8; on religion, 141–3, 157; and rights, 148–51; on secularization, 143–7; on slavery, 182 Miller, David, 18, 139, 168, 174–5, 242, 245 Milton, John, 20, 26, 32, 149 Montesquieu, baron de, 122 Motzkin, Gabriel, 193 Mouffe, Chantal, 78–80 Murdoch, Iris, 115 Musonius Rufus, 60, 64 Nagel, Thomas, 5, 164, 177, 179, 219–22

nations, nationalism, 5–7, 82–4, 116– 17, 133–4, 167, 173–7, 225, 243 Nuremberg trials, 181–4, 196, 198 Nussbaum, Martha, 244, 246, 249–52 Oldenquist, Andrew, 168, 175, 202, 204–5, 206–8, 215, 220 open and closed societies, 163–9, 179–80 partialism, moral, 173, 201–2, 216–19 Pascal, Blaise, 165 patriotism, 208 Pettit, Philip, 208–9 Plato, 208 Pocock, J.G.A., 72 Pogge, Thomas, 131–6, 174 Popper, Karl, 163–4 Price, Richard, 59–60, 81 Proast, Jonas, 20, 22, 25, 160 Protestantism, 17–20, 36, 145–6 Proudhon, Pierre-Joseph, 10–11; and citizenship, 124–5; federalism, idea of, 122–4; on justice, 121–2; and Pogge, 132–3; republicanism of, 119–21 ‘Proudhonism’: defined, 11, 120; criticized, 136–9 proximity, moral significance of, 57, 99–100, 113–15, 213–14, 241–2 Prunier, Gerard, 193 Rachels, James, 251 Rawls, John, 4, 37–8, 109, 128, 129 Rees, J.C., 152 religion of humanity, 112, 140–1, 157, 260 Renan, Ernest, 163, 167 Renouvier, Charles, 169

324

Index

republicanism, 8, 40, 57, 75–6, 214–15 restitution: and apologies, 229–30; and distributive justice, 238; and history, 233–5; and responsibility, 230–3, 241; and return, 235–40 rights: Comte on, 82–3, 91–7; human, 91–2, 170, 176, 192, 205–6; Mill and, 148–55; special, 221–3, 225–7; waiving of, 258–9, 269 Ritter, Alan, 124 Robertson, Geoffrey, 184 Rome Statute, 181, 184, 195, 197 Rorty, Richard, 5, 175, 206, 247 Rousseau, Jean-Jacques, 4, 9; Calvin and, 19; Cole and, 126–7; citizenship, his idea of, 40, 48, 57, 126–7; on cosmopolitanism, 46–7, 257; on egoism, 50, 72–3; on generalizing, 43, 48–9, 56–7, 68; on general will, 9, 40–57, 63; humanity, idea of, 3–4; and natural law, 41–8; and Locke, 39–40, 259–60; and Mill, 157; on partiality, 53; on war, 199 Rushdie, Salman, 18 Said, Edward, 19, 116 Saint-Simon, Henri de, 85 Scanlon, T.M., 261 Scheffler, Samuel, 5, 177, 222, 246–52 Schlereth, Thomas, 59 Schmitt, Carl, 16 self: conflictual view of, 164, 179; ‘encumbered’ view of, 92–4; identity of, 146; self-making, 102, 146 Sen, Amartya, 19 Shklar, Judith, 182 Shue, Henry, 152 Siedentop, L.A., 17–18 Simmons, A. John, 242–3

Smith, Adam, 62 sovereignty, 132, 180, 184–5, 192 Sparrow, Robert, 231–4 special ties, 107, 115, 176–7, 225–7, 246–7. See also associative duties Stephen, James Fitzjames, 144–5, 160 Sterba, James, 188 Stoics, Stoicism, 5, 46, 58–64, 72–4, 82, 100, 166 strangers, duty to, 3, 8, 13–15, 57, 247, 264. See also cosmopolitanism subsidiarity, 270 Tamir, Yael, 139 Taylor, Barbara, 58–9, 68 Taylor, Charles, 21 Terence, 81 Thompson, Janna, 228, 233 Tocqueville, 157 trust: and associations, 270; compatriot duty and, 12; and crime against humanity, 199; George Eliot and, 106, 262; Locke and, 21–3 universalism, moral, 108, 247–9, 252–5. See also cosmopolitanism utilitarianism: Bergson and, 165; Mill and, 148–59 Velleman, J. David, 115–16 vulnerability, moral importance of, 13, 158, 258–61, 263, 267, 267–70 Waldron, Jeremy, 229–30, 269 Walzer, Michael, 17 Weber, Max, 17, 35 Wellman, Christopher, 178, 215, 265–6 Williams, Bernard, 177, 216–17, 256 Wolf, Susan, 255–6

Index 325 Wolin, Sheldon, 39 Wollheim, Richard, 55 Wollstonecraft, Mary, 9; on citizenship, 68–70, 257; on friendship, 62, 65; on love, 66, 116; on nature, 60; ‘orientalism’ of, 67–8; and republi-

canism, 55, 64–70, 75; and Stoicism, 58–64, 70, 74–5, 79; on tyranny, 65–7 Wordsworth, William, 100 Young, Iris Marion, 73, 75, 112