Liberalism at Crossroads - Introduction to Contemporary Liberal Political Theory and Its Critics 084767875X, 0847678768

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Liberalism at the Crossroads An Introduction to Contemporary Liberal Political Theory and its Critics

Edited by Christopher Wolfe and

John Hittinger

ROWMAN AND LITTLEFIELD PUBLISHERS, INC.

ROWMAN & LITTLEFIELD PUBLISHERS, INC. Published in the United States of America by Rowman & Littlefield Publishers, Inc. 4720 Boston Way, Lanham, Maryland 20706 3 Henrietta Street London WC2E 8LU, England Copyright© 1994 by Rowman & Littlefield Publishers, Inc. All rights reserved. No part of this publication may

be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher.

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Library of Congress Cataloging-in-Publication Data

Liberalism at the crossroads : an introduction to contemporary liberal political theory and its critics/ edited by Christopher Wolfe and John Rittinger. p. cm. Revised papers presented in their original form at a conference of the American Public Philosophy Institute. Includes bibliographical references and index. 1. Liberalism-Congresses. I. Wolfe, Christopher. II. Rittinger, John. JC571.L53753 1994 320.5'13-dc20 93-45891 CIP ISBN 0-8476-7875-X (cloth: alk. paper) ISBN 0-8476-7876-8 (pbk.: alk. paper)

Printed in the United States of America

@ TM

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences-Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984.

Contents ACKNOWLEDGMENTS INTRODUCTION

Christopher Wolfe and John Rittinger

vii ix

CHAPTER I THE LIBERALISM OF JOHN RAWLS: A

BRIEF EXPOSITION Michael Pakaluk

CHAPTER 2 THE EGALITARIAN LIBERALISM OF

RONALD DWORKIN Christopher Wolfe

23

CHAPTER 3 DAVID A. J. RICHARDS: A LIBERALISM OF

THE AUTONOMOUS PERSON John Rittinger

43

CHAPTER 4 ROBERT NOZICK AND THE

FOUNDATIONS OF POLITICAL INDIVIDUALISM R. George Wright

59

CHAPTER 5 BEYOND THE PROCEDURAL REPUBLIC:

THE COMMUNITARIAN LIBERALISM OF MICHAEL SANDEL Terry Hall

75

CHAPTER 6 ALASDAIR MACINTYRE: RECOVERING

THE RATIONALITY OF TRADITIONS David M. Wagner

97

CHAPTER 7 ROBERTO UNGER: LIBERALISM AND

"SUPERLIBERALISM" Russell Rittinger

113 V

vi CHAPTER 8 INESCAPABLY A LIBERAL:' RICHARD RORTY AS SOCIAL THEORIST Gerard V. Bradley CHAPTER 9 THE UNORTHODOX LIBERALISM OF JOSEPH RAZ Robert P. George CHAPTER IO WILLIAM GALSTON'S DEFENSE OF LIBERALISM: FORGING UNITY AMID DIVERSITY J. Brian Benestad INDEX ABOUT THE CONTRIBUTORS

Contents

135 151

165

185 193

Acknowledgments

The papers on which this book is based were presented at a conference of the American Public Philosophy Institute on ''The Crisis of Contem­ porary Liberalism,'' which was made possible by a generous grant from the Homeland Foundation and by the support and encouragement of Lewis Lehrman. Much of the editorial work to transform the conference papers into a book was undertaken by Christopher Wolfe with the help of a summer grant from the Marquette University Bradley Institute for Democracy and Public Values. John McAdams and Stephen Hollings­ head were generous in sharing their computer expertise. Several publishers have kindly granted permission for quotations from certain works: Cambridge University Press, for quotations from Michael Sandel's Liberalism and the Limits of Justice and from Rich­ ard Rorty's Contingency, Irony, and Solidarity; Oxford University Press, for quotations from Joseph Raz's The Morality of Freedom; and the University of Notre Dame Press, for quotations from Alasdair Maclntyre's After Virtue. The diagram on p. 12 is reprinted by permis­ sion of the publisher from A Theory of Justice by John Rawls, Cam­ bridge, Mass.: Belknap Press of Harvard University Press,© 1971 by the President and Fellows of Harvard College. Chapter 9, "The Unorthodox Liberalism of Joseph Raz" by Robert George, appeared earlier in The Review of Politics 53, 4 (Fall 1991).

vii

Introduction

Christopher Wolfe and John Bittinger The political theory of liberalism has long been dominant in Anglo­ American legal and political thought, even during periods, such as the recent past, when conservatism seemed ascendant in American poli­ tics. The aim of this book is to provide the general reader with a nontechnical introduction to the ideas of leading participants in the contemporary philosophical debate about liberalism. Each chapter provides an exposition and analysis of the thought of an influential contemporary liberal thinker or leading critic of liberalism. Although the book is primarily expository, many contributors also suggest lines of criticism of the writers whose views are presented. The key questions that form the context of each article are: What is liberalism, what is its current condition, what is the best statement of its theoretical foundations, what are its greatest weaknesses, and how can it best cope with the most important criticisms leveled against it (if it can do so at all)? Of course, not all the essays address themselves to all these questions, but they form the core concerns of the book. Classical liberalism is usually identified with the thought of John Locke (1632-1704), although some of its most essential features appear in the earlier thought of Thomas Hobbes (1588-1679). In Hobbes and Locke there is a fundamental shift in conceptions about the origin and purposes of political life. Ancient political philosophers such as Plato and Aristotle considered the political community to be a natural development from prepolitical communities-natural not only in the sense that it was "normal," but more importantly in the sense that it was necessary for the complete flourishing of natural human capaci­ ties. The ultimate purpose of the political community was to foster a certain way of life, some idea of what it meant to be truly and fully human, some form of human excellence. If political practice did not ix

X

Introduction

often live up to these elevated notions, stilf they provided the ideal in light of which the political life of a community was evaluated. The coming of Christianity brought with it an inevitable and substan­ tial modification of ancient political thought. Political life was radically "demoted. " The highest form of human life-the supernatural life of grace-was, after all, to be attained not through the political commu­ nity, which reflected the weakness and malice of fallen human nature, but in the transpolitical community of the Church. Political life was, for the most part, confined to more limited, temporal goods. But medieval political thought still saw politics in its highest reaches as oriented toward the ultimate human good, because the political community had the duty of acknowledging and revering the Creator and Redeemer and of being guided by the eternal law and by man's participation in it, the natural law. Hobbes and Locke broke with ancient and medieval conceptions of the origin and purpose of political life. Their starting point was a state of nature in which the first law was derived from the most fundamental passion, the desire for self-preservation. Various unpleasant aspects of this state of nature induced men to leave it, by establishing civil society. In so doing they gave up their own executive power to enforce their own self-preservation and transferred it to the government. The government's purpose was limited to protecting the fundamental rights that it had been created to protect more effectually: life, liberty, and property. This meant that it would put to the side the various concep­ tions of human good that had occasioned interminable wrangling among men-most recently, in the form of religious warfare. Hobbes was convinced that the only kind of authority that could accomplish this purpose was an absolute ruler who could awe men into submission. Locke considered this a fundamental mistake, because an absolute ruler himself would threaten the rights of man. He opted instead for a mixed form of government, in the belief that it would be less likely to endanger the rights it was created to protect-above all, the right to property (which, in a certain sense, included the others). The focus of government had thus shifted from making men good to making them secure. But the break with ancient and medieval philosophy on this point­ the concern of the political community with the moral qualities of its citizens-was not complete, however, because classical liberalism was not completely indifferent to character formation. Classical liberals believed that liberalism required certain kinds of citizens and that government might, out of a concern for its own self-preservation,

Introduction

xi

encourage what was essential for (a minimal form of) civic virtue. For example, Locke could write the Letter Concerning Toleration, advocating a strikingly broad toleration of religious views, but still assume that atheism undermined the foundations of government and therefore government could proscribe it. This was, however, a decid­ edly subordinate theme of liberalism, given its emphasis on the secur­ ing of human rights. Classical liberalism was primarily a theory of the state, a limited state, with little attention to the question of what is good for individual human beings, other than the protection of negative rights. A major nineteenth-century figure who revealed some of the ambigu­ ities of liberalism was John Stuart Mill (1806-1873). Probably his best­ known work in America is On Liberty, in which he argued for very sharp limits on the power of government to intervene in individual lives, above all, with respect to conduct that does not relatively immediately and tangibly impinge on the lives of others. 1 Each individ­ ual is the one most interested in the way of life he lives and should have the power to choose his way of life, unhampered by others, as long as he respects their like rights. This might be called the "antiperfectionist" strain of Mill: government, in particular, has no authority to undertake the perfecting of its citizens by coercion. Yet there were other strains in Mill too. First, he assumed that certain conditions had to be met, to enable society to adopt his norms. A country must be a "civilized" one, in which "mankind have become capable of being improved by free and equal discussion" (Hackett edition, p. 10). Second, Mill's argument for liberalism was in great measure based on the fact that it conduces to the better formation of human beings. For example, chapter two of On Liberty argues that free speech leads men more effectively to truth, and chapter three argues that freedom to act and the positive fostering of a person's "individuality" are essential for "the highest and most harmonious development of his powers to a complete and consistent whole" (p. 55). Mill would surely have found it very strange had someone called him an "antiperfectionist." Despite his individualism, Mill's doctrine of liberty rested on explic­ itly utilitarian moral foundations. In defending his doctrine, Mill claimed to forgo any advantage to his argument to be gained by appeal to "abstract right." Utility, he declared, should be the final arbiter on all matters of moral consequence. This utilitarianism, whether in the blunter form adopted by Mill's father and Jeremy Bentham or in the

XU

Introduction

more refined form adopted by John Stuart Mill, became the standard framework for liberalism. Post-Millian liberalism understood itself as a reforming public philos­ ophy. Liberals concerned themselves with improving the lot of man­ kind by placing social institutions on a more "rational" or "scientific" basis. Reform-minded liberals sought to replace the "religious" or "metaphysical" ideas that had informed many social institutions (e.g., the idea of retributive punishment in criminal law) with "enlightened" social goals (e.g., the rehabilitation of offenders and the elimination of the "causes" of crime). Late-twentieth-century liberals continue to admire Mill's libertarian­ ism. Many, however, have come to question the adequacy of utilitari­ anism as a foundation for civil rights and liberties. Fearing that the philosophy of "the greatest happiness of the greatest number" will justify the sacrificing of individual interests to the collective welfare, various contemporary liberal thinkers have sought to devise nonutili­ tarian forms of liberalism. At the same time, most liberals' growing commitment to economic equality, to be achieved through active interventionist government, seems to call for a more explicit and principled defense of egalitarianism. The appearance of John Rawls's A Theory of Justice in 1971 marked a key event in contemporary liberal political theory. Reacting against the dominant utilitarianism in twentieth-century Anglo-American polit­ ical and legal theory, Rawls aimed to revive social contract theory, firmly rooting it in Kant. He sharply distinguished between "the right" and "the good," identifying justice with the former and demanding "neutrality" of the state on the latter. A central feature of Rawls's project was to bring the egalitarian ambitions of liberalism into har­ mony with its libertarian commitments. In this respect Rawls's con­ tractarianism diverges from the more classical liberalism of Locke. Most contemporary liberal theorists are either trying to develop and apply the basic approach of A Theory ofJustice or devote considerable attention to criticizing it as a preliminary to the presentation of alternative views. This thumbnail sketch of Anglo-American liberalism provides the context for the essays in this book, which begin with an account of Rawls, and of the development and application of his "antiperfection­ ist" theory in legal philosophy by Ronald Dworkin and David A. J. Richards. Antiperfectionists argue that political communities should, as far as possible, refrain from taking a stand on "the morally good life" as such. They hold that governments may not legitimately attempt

Introduction

xiii

to "perfect" citizens according to some notion of what is the best life for them to lead, but should leave questions of "the good" to individual deliberation and choice. The role of government is primarily to provide a protective framework of rights for these essentially "private" or "personal" decisions. Michael Pakaluk's essay deftly summarizes Rawls's monumental work A Theory of Justice and more briefly indicates some later explica­ tions and modifications of its major points. Rawls's starting point is the goal of social cooperation among persons who are free and equal. By means of a thought experiment (in which people in the "original position" select principles of justice "behind a veil of ignorance"), Rawls attempts to establish two "lexically ordered" fundamental principles of justice. First, each person has the right to equal basic liberties. Second, social and economic inequalities must satisfy two conditions, that is, they must be open to all under conditions of equality of opportunity, and they must be to the greatest benefit of the least-advantaged members of society. The next two chapters introduce legal thinkers who have been significantly influenced by Rawls's antiperfectionism: Ronald Dworkin and David A. J. Richards. Christopher Wolfe's chapter on Dworkin briefly describes Dworkin's early work and then devotes considerable attention to his more recent defenses of the foundations of liberalism. Like Rawls, Dworkin has somewhat modified his claim that liberalism is neutral with respect to various conceptions of the good life. In fact, he has recently argued that the foundations of liberalism lie precisely in central insights about the good life that we (or at least most of us) share. Most importantly, he maintains that a good life is defined not by its effects or consequences, but by skillful performance in facing the challenge of living. He attempts to show how such an understand­ ing leads to a form of political liberalism that is fundamentally rooted in a certain conception of human equality. David A. J. Richards's antiperfectionist liberalism is the subject of John Hittinger's chapter. Richards has been prominent in developing a legal philosophy of liberal constitutionalism based on a "Kantian" conception of the person. At the heart of this conception is ''personal autonomy,'' the self-critical freedom of the person to order his own life. According to Richards, American constitutional law is seen in a new light when the principle of autonomy is given primacy, and Richards works out the implications of this primacy, for general principles of constitutional law, as well as for the interpretation of the Bill of Rights.

xiv

Introduction

The following essay, by R. George Wright,' completes our picture of antiperfectionist liberalism by examining a "right-wing" liberal, Rob­ ert Nozick. Nozick's Anarchy, State, and Utopia is the leading con­ temporary theoretical defense of the minimal or "night-watchman" state. Nozick begins from the premise of a general moral right of individuals to be free of theft, force, fraud, and coercion, in an individualistic, reasonably benign anarchistic society. He then shows how a series of evolutionary steps to deal with violations of these rights can lead to the minimal state. Nozick reminds us that earlier forms of liberalism were not identified with egalitarianism, as today's liberalism is, and that the logic of antiperfectionist premises can be carried out in quite different political directions. The next section of the book describes the response to antiperfec­ tionist liberalism. Terry Hall provides a chapter on Michael Sandel's trenchant critique of Rawls's liberal individualism, which is representa­ tive of a group of loosely related critics typically referred to as "communitarians." Sandel rejects Rawls's postulate of the "original position" as a device for identifying sound principles of justice. Ac­ cording to Sandel, the "unencumbered selves" whom Rawls places in the original position (i.e. , persons stripped of the identities that are supplied by prior attachments and commitments made in the relational contexts of the communities to which they belong) are unequipped for the task Rawls sets for them. Sandel rejects Rawls's identification of the self with the capacity to make individual "choices" (about, e.g., what kind of life is morally valuable) and argues that the self is in fact constituted by the ends it chooses. Ultimately, in Sandel's judgment, Rawls's "deontological" liberalism (in which "the right" has priority over "the good") fails because the "unencumbered selves" in the original position lack the moral ties or commitments needed to conduct moral deliberation. Sandel argues that we must reconceive the self as essentially constituted by its attachments and values and as fulfilling itself in meeting the requirements of the common good. Apparently, Sandel wants to rehabilitate liberalism rather than supersede it. In any event, it is unclear how far he may be willing to go in the direction of more traditional (preliberal) forms of political philosophy. Alasdair Maclntyre's work represents another influential strand of the communitarian critique of liberalism. One might call it a more "conservative" strand, not so much in the narrowly political sense, but in the sense that Maclntyre's thought has gradually evolved in the direction of more traditional philosophical positions such as Thomism. David Wagner presents Maclntyre's description of liberalism as a

Introduction

xv

tradition inaugurated by the Enlightenment, which attempted to con­ struct a tradition-independent form of moral discourse. According to MacIntyre, all liberalism has managed to do, however, is to inaugurate a new tradition characterized by a cacophony of moral theories without a rational set of criteria to adjudicate among them (a tradition subjected to powerful criticism by Nietzsche, among others). Current antiperfec­ tionist liberalism is a logical culmination of the Enlightenment's hostil­ ity to the idea of tradition-based moral enquiry, but it has its own conception of the human good: preserving the conditions of the tradi­ tion-free (and inconclusive) search for the human good. In his later work, MacIntyre expresses sympathy for certain preliberal philosophi­ cal positions (especially Augustinianism and Thomism), finding that they meet the best test available for deciding between opposing tradi­ tions of moral enquiry. This is a robustness test: Which traditions have historically demonstrated the greatest capacity to overcome "episte­ mological crises" and carry on, strengthened rather than weakened by the challenges they have faced? Roberto Unger's work is a profoundly different variant of the com­ munitarian critique of liberalism because it takes its orientation from an entirely different source: not preliberal thought, but the radically modernist Critical Legal Studies movement. Russell Hittinger de­ scribes Unger's somewhat shifting position, from the apparent neo­ Aristotelianism of his first book to a later '' superliberalism'' grounded more thoroughly in existentialist assumptions. According to Unger, liberalism correctly denies the existence of a fixed human nature or an objective human good; it fails, however, to follow through on this insight. Instead, liberals have attempted to create formalistic and proceduralist political and legal structures that purport to protect individual rights. Liberal society thus creates the illusion that the economic and social hierarchies it sanctions and perpetuates are "nat­ ural" and somehow immune from the revolutionary "context smash­ ing" that is the real business of politics. Unger's social vision is of a "superliberalism" based on the human desire for solidarity and the fear of being submerged in social roles. How he proposes to achieve such a vision remains, however, less than clear. Gerard Bradley describes "pragmatic liberalism," a renewed asser­ tion of antiperfectionism in the face of these criticisms, through an analysis of the social theory of Richard Rorty. Rorty's antirealist epistemology leads to a world of incommensurable vocabularies with no rational criteria for adjudicating among them. Sharing many of Unger's existentialist assumptions, Rorty argues that if there is a basis

xvi

Introduction

for human "solidarity," it is our common experience of pain, with the imperative to avoid cruelty. Rorty's ideal society is held together by our conviction that everyone should have a chance at self-creation to the best of his or her abilities. Ultimately, however, Rorty concedes that he and other liberal intellectuals are "ironists" whose beliefs have no greater claim to "truth" than the views of those whom they criticize. The final two essays take up an entirely different response to the theoretical crisis of contemporary liberalism: the attempt to develop and defend a "perfectionist" liberalism. Robert George describes Joseph Raz's rejection of antiperfectionist "neutrality" (as neither desirable nor even possible) and analyzes Raz's claim that the goal of political action is to encourage pursuit of what is truly good and discourage pursuit of what is morally unworthy. Despite this strong perfectionist claim, Raz's political philosophy gives pride of place to individual liberty, or autonomy, which he considers to be intrinsically valuable. One exercises autonomy in choosing among a plurality of (other) human goods. Nonetheless, Raz forthrightly denies the value of autonomy used to choose what is morally bad and says that society has no reason to protect worthless, much less morally evil, options. Raz is more conventionally liberal, however, in espousing a version of J. S. Mill's "harm principle," arguing that a due regard for autonomy rules out government use of coercive means to discourage ''victim­ less" immoralities. George raises serious questions, however, about whether Raz's strong perfectionism (of which George approves) can support his principled rejection of "morals legislation." Finally, Brian Benestad's chapter considers the quasi-Aristotelian perfectionist liberalism of William Galston. Like Raz, Galston rejects antiperfectionist neutrality and insists that liberal society must em­ brace a conception of the human good. Galston observes that if the good is unknowable, we are led not to liberal neutrality, but to unconstrained struggle. Moreover, even antiperfectionist liberal theo­ rists assume a substantive view of the good (treating human life and human purposiveness and rationality, for example, as goods). In his most recent work, Galston attempts to spell out and defend more fully his liberal conception of the good. The key factor that preserves Galston's claim to be a liberal is his respect for a pluralism of ends that limits his position to a "minimal perfectionism." Benestad is less optimistic than Galston that the liberal tradition itself (e.g., in its Lockean, Kantian, or Romanticist forms) provides an adequate foun­ dation for virtue.

Introduction

xvii

The emergence of the forms of perfectionist liberalism described in the final two chapters manifests the possibility of, and helps to create the opportunity for, a much more substantial dialogue between propo­ nents of natural law thinking-especially as applied to the pluralistic circumstances of the modern world-and advocates of liberalism. The encouragement of that dialogue is precisely the goal of the American Public Philosophy Institute, under whose auspices the chapters of this book were written. Our primary purpose in writing this book has been to provide an accessible and fair presentation of the thought of major contemporary liberal thinkers and their critics. At the same time, we hope that it will help readers to see the formidable theoretical problems that liberalism faces today, and that they will begin to suspect, as we do, that the future of liberalism lies, not in a working out of the antiperfectionist impulse, but in a dialogue with more traditional and "perfectionist" philosophical positions (such as Aristotelian natural right and Thomistic and contemporary natural law theories).

Notes I. John Stuart Mill, On Liberty, Elizabeth Rapaport (ed.) (Indianapolis: Hackett Publishing Company, Inc., 1978).

Chapter 1

The Liberalism of John Rawls: A Brief Exposition

Michael Pakaluk My aim in this chapter is to give a clear and sympathetic account of John Rawls's political liberalism. I intentionally avoid raising and discussing difficulties or possible criticisms, even those that naturally suggest themselves. Rawls's theory is something of a fixed point for contemporary liberal political theory, and the other writers in this volume either build upon Rawls's work or react against it. It is better, then, for the purposes of this volume, to keep it fixed, by simply letting it be heard in its own right. In that way the coherence, power, and attractiveness of the theory will, I believe, be brought home to the reader, who will then be better equipped to evaluate the discussions that follow. I begin with a statement of the aims and goals of Rawls's theory; next I give a sketch of its key components ; and then I examine these more carefully. I close with some comments on how Rawls has changed at least the presentation of his theory in recent years, in the transition from his original masterwork, A Theory of Justice, to his recent book, Political Liberalism. 1 Aims and Goals Rawls proposes his theory of ''justice as fairness'' for two reasons. 2 First, it is meant to be a systematic theory that can serve as an alternative to utilitarianism, which has been the dominant moral philos­ ophy among political liberals since the time of Jeremy Bentham (1748-1832). Rawls thinks that liberals have in the past turned to utilitarianism primarily by default, because there has been no other systematic account of morality. Yet utilitarianism, he thinks, does not accord well with liberal political views for various reasons. (1) It

2

Chapter One

provides an unstable justification for political liberties , because we can think of circumstances , not at all extraordinary, where utilitarianism would allow or require that liberties be curtailed to maximize the general welfare. (2) The reasoning we engage in when we think about matters of social justice seems not to be utilitarian in character. For example , a utilitarian would argue that slavery is unjust because the advantages to the slaveholders do not counterbalance the disadvan­ tages endured by the slaves . Yet we think that whatever advantages a slaveholder gains from slavery are , so to speak, morally irrelevant: that the slaveholder benefits from the practice in no way mitigates the injustice of slavery , as utilitarianism seems to imply. 3 (3) Utilitarian­ ism, because it is a controversial philosophical theory, cannot , practi­ cally speaking, serve as a basis for resolving questions of justice in a society, such as ours , where there are great differences in the moral, philosophical, and religious views of its members . In short, Rawls sees a disparity between the political views held by liberals and the moral philosophical views they have traditionally espoused ; he wants to provide a theory that will make appeals to utilitarianism seem unneces­ sary and unattractive . The second basic reason Rawls proposes his theory of justice is to promote, in a philosophical yet practical way , peace and concord within contemporary constitutional democracies . 4 The theory is meant to do this in two ways. ( 1 ) It is supposed to help bring about agreement of citizens with one another on disputed questions having to do with balancing claims of freedom against claims of equality . It aims to do this by finding a fundamental level of agreement among citizens , and then extending this agreement to resolve disputes and heal divisions. (2) It is supposed to rationalize the political order to individual citizens by showing how that order is fully in accord with their moral personal­ ity . It aims to do this by making an explicit connection between citizens' conceptions of themselves and the structure of the society in which they participate. Rawls refers to both of these goals as types of "reconciliation. " To establish peace and concord is to effect a reconciliation of citizen with citizen; to rationalize the political order is to effect a reconciliation of citizen with the state.

Sketch of the Theory Rawls 's theory has three basic elements. He begins with a "fundamen­ tal intuitive idea," which he thinks is implicit in our political culture.

John Rawls

3

This is the idea of society as a fair system of cooperation among citizens conceived of as free and equal persons. This idea contains within it a certain conception of the person, as being free and equal. Rawls tries to arrive at an understanding of political justice that is adequate to this conception of the person. He does this by means of the device he calls the Original Position­ the second element of the theory. This is essentially a thought experi­ ment, in which we picture persons who are ideally free and equal, and who are fairly situated with respect to one another. In our thought experiment, we try to describe these idealized persons in sufficient detail so that we have an idea of their motivation and can predict how they might think and choose. We next suppose that these persons are representatives for others who are about to enter into a society with one another. We suppose that they are representatives, in order to stress that they act with deliberateness and sobriety, because they have a certain trust that they must fulfill, and also to simplify, for we can then imagine that each person in the Original Position represents a group of persons with similar interests and concerns. Next we scan our political tradition and compile a list of the principal criteria for organizing and regulating society that have been defended and maintained in that tradition. The list includes, for example, the utilitarian criterion: the institutions and practices of a society are to be arranged so as to produce the greatest aggregate welfare. We also include on the list two Principles of Justice that have been developed by Rawls-and these are the third element of his theory. We then present these various criteria pairwise to the representatives in the Original Position and try to determine which of each pair would be preferred by them as principles for governing the society into which the persons they represent are about to enter. By successively compar­ ing pairs of criteria, we can arrive at the criterion on our list that is most favored by the ideally free and equal persons of the Original Position. Rawls maintains that his two Principles of Justice would be selected as the most-favored criterion. It is important that the representatives be given a finite list of possible principles of government, so that their decision is determinate. Note also that Rawls is not concerned with whether the principles finally chosen are the "best possible" or "most just" principles of government: it suffices, he contends, that they be simply the best principles of those alternatives known to us. To summarize his procedure: Rawls begins with the fundamental intuitive idea of fair social cooperation among free and equal persons

4

Chapter One

(element 1). This involves a certain conception of the person. By using the device of the Original Position (element 2), he hopes to establish a connection between this conception of the person and his two Princi­ ples of Justice (element 3). What would be the importance of this connection? Rawls maintains that, because his Principles would be chosen as the basis for social cooperation by ideally free and equal persons who were fairly situated, then the Principles give what are in fact the fair terms of social cooperation for persons conceived of as free and equal. What this would imply for us is that, insofar as we are committed to the idea of society as a fair system of cooperation among persons conceived as free and equal-as Rawls thinks that we are, simply by being partici­ pants in an established tradition of constitutional democracy-then we would be obliged to measure our institutions and practices against the two Principles of Justice. The Fundamental Intuitive Idea I turn now to a more detailed consideration of the three basic elements of justice as fairness, beginning with the fundamental intuitive idea of society as a fair system of cooperation among persons regarded as free and equal. First, as I mentioned, Rawls thinks that this idea is somehow implicit or latent in our political culture. By "political culture," Rawls means our institutions and practices, together with any existing written inter­ pretations of both, such as founding documents and judicial decisions. This would seem to suggest that the idea is implicit in two ways. On the one hand, it is implicit in written documents, in the sense of being a background assumption, or notion, relied on at various points in the statement of an interpretation. On the other hand, it is implicit in practices themselves, as a kind of unrecognized principle guiding action. Perhaps a good analogy for this second type of implicitness would be a rule of grammar. It is of course the case that speakers of a language frequently observe a grammatical rule in their speech, even though they are not conscious of it and could not correctly articulate it if requested. Furthermore, when the rule is made explicit, we can adjust it to make it more consistent with other rules, or we can see ways of extending it to cases about which we were previously hesitant and uncertain. In a similar way, it might be said, there are principles

John Rawls

5

implicit in our democratic practices, of which we are not fully con­ scious, and which have not been so far satisfactorily stated. And it might be claimed, moreover, that if these principles are made explicit, they might need to be developed or altered, to make them consistent with other principles; and once this is done, we might see our way through to deciding cases that were previously uncertain, or reaching agreement on matters previously divisive and controversial. I think that Rawls views his fundamental intuitive idea in this way. He considers his theory of justice to be an attempt to make this implicit idea explicit and definite. And it is in this light, I believe, that we should understand his notion of "reflective equilibrium." When a principle of action is made explicit, adjustments are necessary: the principle needs to be adjusted to suit practice, and practices need to be adjusted to match the articulated principle. And the principle also may need to be adjusted to make it cohere with other principles, practices, and beliefs. As this process continues, adjustments become smaller and infrequent, and eventually a stable condition is reached. This would be a state of "reflective equilibrium. "5 Note that this process of articulating an implicit idea implies that the idea be developed. It is not a matter simply of unfolding what is already there: rather, it involves something of a project of construction. Rawls refers to this as "specifying" the intuitive idea. 6 This project of specification, like other projects, is determined by our end or purpose. Hence there is not one way only of "specifying" any particular intuitive idea; rather, we can specify it in different ways, depending upon what our purpose is. Rawls, in fact, wants to specify the intuitive idea with the particular purpose of arriving at what he calls a "political conception" of justice. 7 He is not concerned with justice of all sorts between persons in any circumstance. Rather, he is interested solely in political justice of the broadest sort among citizens in a constitutional democracy. Thus, to develop the intuitive idea to have it bear only on this involves qualify­ ing and limiting the development of the idea in various ways, of which I shall mention three. First, a political conception of justice is one that is developed to apply solely to the broadest social framework of a nation, which Rawls calls the "basic structure." The basic structure, according to Rawls, consists of the political constitution, the judiciary, forms of property, and the general structure of the economy. It does not include firms and corporations, households, churches, universities, voluntary associa­ tions, and the family.

6

Chapter One

Second, a political conception of justice is ' developed only with an eye to the capacities of persons to take part in political life with respect to the basic structure. It does not use metaphysical or religious doctrines about human nature in its entirety, and it is not concerned with nonpolitical human relationships, such as friendships. Rawls notes that, just as we might speak of Homo Jaber, Homo oeconomicus, or Homo politicus, so it is possible to reflect on the characteristics of persons only as they relate to one another politically in the basic structure.8 Third, a political conception of justice is developed to apply to a society in which "the circumstances of justice" obtain. Rawls distinguishes here two sorts of circumstances, objective and subjec­ tive. The objective circumstances of justice are taken from David Hume (1711-1776): resources are moderately scarce; persons in soci­ ety are not fully altruistic; and there are possibilities of fruitful cooper­ ation. The subjective circumstances of justice are the fact that there is pluralism, that is, that persons hold comprehensive philosophical, moral, and religious views that are incommensurable; and the fact that pluralism will not vanish, except through the oppressive use of state power to compel acceptance of some particular comprehensive view.9 Because he believes that the subjective circumstances of justice do obtain in modern constitutional democracies, Rawls urges that political philosophy in those societies must practice what he calls "the method of avoidance." That is, it ought to avoid controversial philosophical questions as much as possible, to advance its strictly practical task of effecting reconciliation. Rawls describes the method of avoidance as an extension of the principle of toleration to the practice of political philosophy itself. "Justice as fairness," he says, "deliberately stays on the surface, philosophically speaking." 1 0 By thus staying on the surface, Rawls hopes to construct a theory that is mutually acceptable to members of various philosophical, moral, and religious persuasions. He thinks that his theory, with this minimal content, might neverthe­ less find a fuller justification within each of these various philosophical, moral, and religious schools of thought. Thus the theory would be justified on different grounds to partisans of different comprehensive views, but its joint and public justification will be independent of any of these particular views. Rawls refers to this sort of agreement on a theory of justice as an "overlapping consensus." He likens it to the way in which a single theorem can be derived differently from different sets of axioms.1 1 So then, these three qualifications direct and limit the manner in

John Rawls

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which the fundamental intuitive idea is to be developed for the theory of justice. Now let us look more closely at the fundamental intuitive idea itself. Rawls calls this idea a "central organizing idea" and says that it involves, in effect, three distinct but related intuitive ideas: the idea of social cooperation, the idea of citizens as free and equal persons, and the idea of a well-ordered society. 12 Let us consider each in tum. The idea of social cooperation, Rawls says, has three essential features. First, it implies the existence of publicly recognized rules and procedures, which those cooperating accept in common as guiding their conduct. Hence social cooperation is distinct from activity that merely happens to be coordinated-say, for example, the coordinated actions of soldiers obeying orders issued from a command post. In social cooperation, there is a shared understanding of the joint activity, and each agent adjusts his action in light of this shared understanding. Second, social cooperation implies that the publicly recognized rules and procedures be freely accepted by the participants. More precisely, each person accepts the rules on the condition that the others do so as well. Rawls says that when this obtains, the rules are fair. His assump­ tion seems to be that each person is capable of recognizing when he is being treated unfairly, and would not freely adopt rules that were unfair to him. Third, social cooperation implies that each participant can conceive of his cooperation as advancing his rational advantage. This is what provides the point or purpose of cooperation in the first place. But this does not imply that cooperation must always be merely instrumental. For it is possible that a participant understand cooperation itself to contribute, in part, to his rational advantage. I take this as all rather uncontroversial. Rawls is simply pointing to the reciprocity, mutuality, and shared understanding that must exist if we are to say that the coordinated activities of several persons are to count as cooperation. But Rawls puts these points to work in the following way. That social cooperation involves a shared understanding implies that acceptable principles of justice must satisfy what Rawls labels the • 'publicity condition.'' The publicity condition states that principles of justice regulating a society need to be known to all, and that the justification of these principles, and their manner of application, must likewise be known. Clearly, if principles of justice are not publicly acknowledged, they cannot serve as the basis for political cooper­ ation. 13

8

Chapter One

That social cooperation involves fairness, ih the sense that everyone freely accepts the rules governing joint activity, is taken by Rawls to imply that principles of justice for a society must be in some sense independent of the comprehensive moral, religious, and philosophical views of its members. If this is not the case, then some will be unfairly favored and others unfairly burdened, which would be an arrangement that could not be freely adopted by all. Finally, that cooperation involves the idea that each participant can advance a rational advantage implies that it is appropriate that the principles of justice regulate only the basic structure and thereby simply provide for "background justice" in a society . 14 For in this way there would be adequate space for the members of a society to prosecute and pursue their own conceptions of the good, in their households, voluntary associations, churches, and so on. The next intuitive idea, the idea of free and equal persons, is related to the idea of social cooperation. According to Rawls, persons who participate in a cooperative endeavor can do so only because they have two capacities, which he calls two "moral powers. " 1 5 These two moral powers follow straightforwardly from what it is to cooperate with others. The first moral power is a capacity for a sense of justice. This is simply a capacity to understand and to act in accordance with principles that regulate a scheme of social cooperation. The second moral power is a capacity for a conception of the good. This is the capacity to develop, revise, and pursue rationally a conception of the good. (By "conception of the good," Rawls understands (1) a determinate scheme of final ends, (2) attachments to other persons, (3) loyalties to groups and associations, (4) affections and devotions, and (5) a religious, philosophical, or moral view that combines all of these into a coherent whole. 16) Without having a conception of the good, to some extent or in some manner, it is impossible for someone to act for his rational advantage. Hence the capacity to have a conception of the good is a necessary condition of being able to participate in a cooperative endeavor. Thus from the very notion of social cooperation itself, we can arrive at two moral powers that must be possessed by participants in social cooperation. Now what it is for these participants to be free and equal is explained by Rawls with respect to these moral powers. To regard citizens as equal is to regard them as having, to a minimal degree, the two moral powers needed to engage in social cooperation. To regard citizens as free, Rawls maintains, is to regard them as "self-authenti-

John Rawls

9

eating sources of claims," that is, as beings entitled to make claims on social institutions to advance their conceptions of the good. It is also to regard them, Rawls says, as in principle independent of the particular conceptions of the good that they happen to hold. This implies that a person has the same status, politically speaking, however he changes or revises his conception of the good. 1 7 Note that, although the two moral powers follow directly from the idea of social cooperation, this understanding of the equality and freedom of persons involves specification and construction. Rawls says that we need to specify what it is to be free and equal in this way because, again, we are trying to develop a political conception of the person adequate to our tradition of constitutional democracy. And in that tradition, he maintains, equality consists merely in a minimal ability to participate in a political scheme of cooperation, and freedom consists in having one's interests count in public deliberation and in not having one's political status depend upon any particular philosoph­ ical or religious affiliation. We come then, finally, to the last intuitive idea, the idea of a well­ ordered society. This is an ideal conception of a society fully regulated, in its basic structure, by principles of justice. According to Rawls, this idea implies, first, that there is public and mutual recognition of principles of justice; second, that the basic structure is believed by the members of society, with good reason, to satisfy the principles of justice that are recognized and accepted by all; and, third, that the members of that society have an effective sense of justice and do succeed in acting in accordance with the principles they accept. 1 8 Let me now summarize this part of my exposition. The starting point of justice as fairness, Rawls claims, is a fundamental idea, latent in our political culture, the idea of society as a fair system of cooperation among citizens regarded as free and equal. Rawls takes this idea and specifies its various component ideas. This specification would involve a qualified and limited development, as with the idea of free and equal persons. The freedom and equality of persons are to be specified only in a political sense, in a manner appropriate to the way in which we proceed in our constitutional democracy. Having specified the fundamental intuitive idea to this extent, Rawls has, he thinks, the necessary raw materials for the next stage of his theory, in which he first sets up the Original Position and then argues from it to his Principles of Justice.

Chapter One

Two Principles of Justice It is useful to consider first Rawls's two principles of justice, before going to the argument from the Original Position, in which those principles are compared against utilitarianism. Rawls does not derive or deduce his principles. He seems to propose them as intuitively obvious. But how he has arrived at them, he would say, does not matter, so long as they would be chosen above other criteria in the Original Position. 19 The two principles are as follows: I. Each person has an equal right to a fully adequate scheme of equal basic liberties, which scheme is compatible with a similar scheme of liberties for all; and, II. Social and economic inequalities are to satisfy two conditions, (i) they are to be attached to offices and positions open to all under conditions of fair equality of opportunity ; and (ii) they are to be to the greatest benefit of the least advantaged members of society. 20

We can refer to I. as the principle of "Equal Basic Liberties"; II. (i) is the principle of "Fair Equality of Opportunity"; and II. (ii) is the "Difference" principle. Some points of clarification. First, Rawls says that the liberties spoken of in the first principle should be specified with the following list: • • • • •

freedom of thought freedom of conscience political liberties freedom of association the rights and liberties specified by the liberty and integrity of the person • the rights and liberties covered by the rule of law

He gives the list to distinguish the principle from the view that liberty as such is to be maximized-a view that is probably incoherent, and which would in any case seem to depend upon some comprehensive philosophical theory. Rawls maintains that the list can be arrived at in either of two ways: first, inductively, by surveying declarations of the rights of man and constitutions of successful democracies; second, deductively, by reflecting on what rights and liberties are necessary for the full development and exercise of the two moral powers that are

John Rawls

11

part of the political conception of the person. For example, liberty of conscience and freedom of association enable citizens to form, revise, and pursue their conceptions of the good. 21 Furthermore, Rawls intends the first principle to have priority over the second, in the sense that it needs to be satisfied first, and that this then places constraints upon the satisfaction of the second principle. Rawls explains this concretely by relating each principle to a different part of the basic structure. The first principle is intended to govern the drawing up of the constitution of a society; the second principle is intended to govern the legislative activity of a society conforming to such a constitution. 22 What is the significance of the Difference Principle? The Difference Principle holds that any deviations from strict equality in the status and advantages of citizens is just only if the condition of the least advantaged persons, given this deviation, is better than it would have been had strict equality been maintained. The Difference Principle is supposed to be a principle of solidarity, in the sense that, if it is observed, then it is possible for all citizens to view themselves as beneficiaries of a system of joint cooperation. Note that the Difference Principle presupposes that there is some standard of what counts as "advantage" in a society, so that we can determine what the condition of equal advantage would be and the degree of deviation from this condition, and so that we can locate the least advantaged class. Rawls's theory of "primary goods"-to be described later-is supposed to supply such a standard. Rawls thinks we can devise a rough index of advantage in terms of these "primary goods," which would be suitable enough for practical purposes. 23 How the Difference Principle is meant to be applied can be made clear using "OP curves." The point 0, the origin, represents the hypothetical state in which all social primary goods are distributed equally. An OP curve depicts the difference in prospects or advantage that two parties obtain from a scheme of mutual cooperation. Take the X-axis to represent the gains above strict equality of those who obtain more, and the Y-axis to represent the gains above strict equality of those who obtain less. The Difference Principle dictates that the better advantaged group be allowed to depart from equality to no greater extent than the value of the X-axis where the curve reaches its maximum. Hence for the curve on page 12, the better advantaged should be allowed to increase their position until they are M units above strict equality (as measured by an index of primary goods), in

12

Chapter One

N p

0

M

which case the less advantaged would be N units above strict equality. 24 According to Rawls, in a society whose basic structure satisfies the Difference Principle, the uneven distribution of natural endowments is effectively viewed as a common asset. For the Difference Principle states, in effect, that the natural complementarities in abilities and talents be exploited by society for the benefit of all. Rawls uses here the analogy of an orchestra: the fact that no person is skilled at playing many instruments is exploited by having different persons play different instruments and coordinating their activity into a harmoni­ ous whole.

The Argument from the Original Position What is the rationale for the Original Position? Let us return to the fundamental idea of society as a fair system of cooperation between persons regarded as free and equal. We ask: How are the fair terms to be determined? Rawls claims that they must be determined by the persons themselves, simply because they are to cooperate for their mutual rational advantage. He rejects for two reasons the suggestion that the fair terms should be decided by some standard that is prior and external to the agreement itself-for example, natural law or God's

John Rawls

13

will for man. The first reason is that there is no consensus in a pluralistic society on what such a standard might be, and so it could not serve as a practicable basis for a shared understanding of political justice. The second is that, if terms of cooperation were fixed by an external standard, then that political system would be heteronomous: citizens could not attain full autonomy within such a system, nor could they become "reconciled" to it, in Rawls's sense. 25 But what could it mean for terms of agreement to be fair, if they are not fixed by some external standard? Rawls's answer is that they are fair if arrived at through a fair procedure, that is, under fair conditions for reaching an agreement of that kind. The Original Position is designed to be such a fair procedure, so that it can be said that whatever terms are agreed upon in the Original Position will ipso facto be fair. Rawls therefore understands the justice of the basic structure to be an example of pure procedural justice. A procedure is perfect if it leads reliably to a just result; a procedure is imperfect if it unreliably leads to a just result. Having the person who cuts the cake take the last slice is an example of a perfect procedure; whereas trial by jury is (often) an imperfect procedure for arriving at a just state of affairs. Now in both cases, the justice of the procedure is determined by whether or not it leads to some state of affairs known independently to be just. Hence the procedure is just because it leads to something just; its justice is derivative. However, sometimes the order of justification is the opposite, and we say that a state of affairs is just simply because it is the result of a fair procedure. This is called pure procedural justice. Rawls's example is a lottery: if the lottery is fairly administered, then whoever wins has won justly, and whoever loses has lost justly. Games and elections would also seem to be practices that result in just states of affairs, so long as they are fair. According to Rawls, political justice is analogous to these cases: principles of justice are just only because selected by a fair procedure, and a society is just only because it is regulated by such principles. 26 What, then, are fair conditions for reaching agreement on principles to regulate the basic structure of a society? Clearly deception and coercion must be excluded, as with all agreements. But, most impor­ tantly, the participants in the agreement must be fairly situated with respect to one another. Rawls brings this about by picturing the participants as under a "veil of ignorance," which keeps them from knowing, first, their status in the society into which they will enter,

14

Chapter One

and second, the particular conception. of the good they will adhere to in that society. Hence each participant, in his deliberations, considers that "he could be anyone." He is compelled to reason about terms of agreement because he might in fact be affected by them in any of the ways in which those terms will affect persons in the society that adopts them.27 Sometimes it is objected, against the idea of the Original Position, that it is irrelevant to us, because it depicts what is merely a hypotheti­ cal agreement, and hypothetical agreements do not bind-we can be bound only by real agreements. But Rawls says in reply that this objection is based on a misunderstanding. Rawls intends that the Original Position be merely a "device of representation": It is an instrument for making vivid and coherent the ways in which we-here and now-deliberate when we think about matters of justice. Far from being hypothetical, we in fact "enter" the Original Position every time we try to view ourselves impartially, from the standpoint of justice. 28 Earlier I said that the Original Position was supposed to select the criterion of justice that would be selected by ideally free and equal persons. Note that this ideal freedom and equality are represented in the Original Position both by the conditions and constraints governing the choice of the participants, as well as by the characteristics posi­ tively ascribed to the participants. It is important to avoid the misun­ derstanding that for Rawls the participants (alone) represent some idealization of human personality. Rather, the Original Position as a whole is supposed to depict freedom and equality, and then only the freedom and equality that are ascribed to persons within the political conception of the person.29 Now it is necessary that the participants in the Original Position be motivated to make a choice among principles of justice. Hence we must attribute to them some motivation for making a choice. Here Rawls says that we should fill in their psychology only in sufficient detail so that we can predict what they will choose-no more. In making as few assumptions as possible we practice the previously mentioned "method of avoidance." Rawls proposes his doctrine of "primary goods" to provide such a minimal account of the participants' motivation. The primary goods are arrived at by reflecting on the political conception of a person as having the two moral powers, a capacity for a sense of justice and a capacity for a conception of the good. They are meant to be all­ purpose goods, useful for developing and exercising the two moral

John Rawls

15

powers, whatever one's comprehensive conception of the good hap­ pens to be. Rawls lists them as follows: • • • • •

the basic rights and liberties freedom of movement and free choice of occupation power and prerogatives of office income and wealth the social bases of self-respect

Rawls says that this list gives a "partial" as opposed to a "comprehen­ sive" conception of the good. 30 One further note: Rawls assumes that the participants in the Original Position will be unaffected by envy. The effect of this assumption is that the participants will not straightaway reject criteria of justice that allow for disparities in wealth and other advantages among citizens. He seems to justify this exclusion on the grounds that envy is contrary to rational sociability (what he calls, following Kant, "the Rea­ sonable").31 Here is Rawls's central argument from the Original Position. The participants are presented with a choice between Rawls's two Princi­ ples of Justice and the utilitarian principle of greatest average utility. Rawls claims that, when presented with this choice, various conditions would be realized that would make it rational for the participants to choose in accordance with what is known as the "maximin" rule, and that this rule would dictate that they select the two Principles of Justice. The maximin (i.e., maximum minimorum, or "greatest of the least") rule states that one should select the alternative that has the best worst case. For example, I am caught on a mountain in a thunderstorm and need to get down. I have a choice between a short trail that briefly runs along an open ridge, or a long trail that takes me many miles out of the way, but which at least runs its length through sheltered forests. I would choose the long trail, to avoid the worst case that might obtain if I were to take the short trail, namely, getting struck by lightning. It seems rational to observe the maximin rule when the following three conditions are satisfied: (i) There are no reasonable grounds for assigning objective proba­ bilities to the various outcomes within an alternative; (ii) The worst outcomes of one of the alternatives are satisfactory; and

16

Chapter One

(iii) The worst outcomes of the other alternative are unsatisfactory. Now for the participants in the Original Position presented with a choice between regulating their society by the Principles of Justice or regulating it by the principle of average utility, these three conditions are satisfied. Condition (i) is satisfied as a result of the veil of ignorance, for no participant knows which person he will be in either of the two socie­ ties, nor does he have any reason for assigning probabilities to his being in any particular class, or have any particular status. Condition (ii) is satisfied, because the least advantaged persons in a society governed by the Principle of Justice will have a satisfactory plight. For even the least advantaged will enjoy the basic liberties and equality of opportunity, and the Difference Principle will insure that other advantages be available to him as well. Condition (iii) is satisfied, because the worst case in a society regulated by the principle of utility is unsatisfactory. That worst case, again, is that one's liberties are restricted or even denied for the sake of maximizing the average utility of society. Because all three conditions are satisfied, the participants will follow the maximin rule and choose the alternative with the best worst case, that is, they will choose to regulate themselves by the two Principles of Justice. This is Rawls's principal argument, but he also gives an ancillary argument that trades on considerations of stability, which proceeds as follows. None of the positions in an unstable society is satisfactory. But a society regulated by the principle of utility will be unstable, for three reasons. First, citizens in such a society will never be secure in the enjoyment of political liberties; for whether or not they have liberties is always on the political agenda, because this is always dependent upon considerations of maximizing average utility. Second, because utilitarian calculations are so complex and depend to a large extent on controversial asssumptions about goods and the comparison of goods, there will be no generally recogized justification of the social order. Instead, those in authority will be under constant suspicion of acting for their own interests, and society will become a battle among factions fighting for control, so that they can impose their own vision of maximized utility. Third, and finally, such a society will in no way encourage the development of political virtues, such as compromise and toleration, among its citizens, because reciprocity and mutuality will not be, as it were, organizing principles of society itself.

John Rawls

17

In contrast, a society regulated by the two Principles of Justice will be stable for all the opposite reasons. And because of its stability, as well as for other reasons already mentioned, its worst position will be satisfactory. Hence, again, all three conditions necessary for bringing the maximin rule into play are satisfied, and, again, the participants will choose to regulate their society in the way that gives the best worst case ; that is, they will select the two Principles of Justice over the principle of average utility.32 Changes in Justice as Fairness I conclude with some remarks about changes in the presentation of Rawls's theory. There was an important change even before A Theory of Justice. Rawls's early papers of the 1950s were written in the style of conceptual analysis, then the dominant manner of pursuing analytic philosophy: Rawls seemed to be proposing an analysis of the concept of justice, just as others had given analyses of the concept of mind (Ryle) and of number (Frege and Russell), and so on. 33 However, in the preface of A Theory of Justice, Rawls says that he has been persuaded, by reflecting on the views of W. V. Quine, that "the notions of meaning and analyticity play no essential role in moral theory as I conceive it. " 34 This signals a tum to outright pragmatism, which becomes more pronounced after A Theory of Justice, and is articulated clearly for the first time in his Dewey lectures, "Kantian Constructiv­ ism in Moral Theory" (1980). That political philosophy is a purely practical endeavor to effect reconciliation, that its starting points are ideas implicit in praxis, that it aims to develop a limited conception of the person for political purposes-these themes dominate Rawls's writings after A Theory of Justice. Besides this major change in presentation and emphasis, two other developments are worth mentioning. First of all, after A Theory of Justice Rawls highlights the Kantian features of his view, so that it is clear that justice as fairness embodies moral ideals from first to last. Rawls stated in A Theory of Justice that his theory of justice could be viewed simply as a branch of the theory of rational choice. 35 This suggests that the principles of justice ought to be looked at as some­ thing like theorems of decision theory. And if so, then the argument from the Original Position might look like an attempt to derive morality from rationality; to argue, in effect, from egoism to altruism. Rawls now regrets those remarks, calls them misleading, and stresses that

18

Chapter One

the manner in which the Original Position is set up embodies certain moral views. The Original Position is not a position of pure rationality: adopting Kantian language, Rawls says that it embodies "the Reason­ able" as much as "the Rational. " 36 Second, Rawls has made it clear in recent writings that justice as fairness does embody certain conceptions of the good-although he continues to deny that it is based on any "comprehensive conception" of the good. This is a development because the presentation of the theory in A Theory of Justice seemed to suggest that justice as fairness was a theory solely of the Right as opposed to the Good. 37 And indeed the theory was widely interpreted as aiming to be "neutral" regarding all conceptions of the good. Rawls now says that in fact it would be impossible to propose a theory of Right without thereby proposing a theory of Good, because Right and Good are complementary. 38 He explains that there are various ways in which justice as fairness maintains or implies views about the Good. What things are to count as primary goods, for example, are implied by the conception of the person as having two moral powers. And insofar as justice as fairness effectively counts reciprocity and mutuality as ends in themselves in a scheme of social cooperation, it implies that various states of character are virtues and hence goods, for example, civility, tolerance, reason­ ableness, a sense of fairness, and the ability to compromise. One final point: although Rawls insists that justice as fairness relies on no comprehensive conception, he abjures the use of the term "neutral" for the theory. 39 The reason is that, in a society regulated by the two Principles of Justice, it is inevitable that some comprehensive conceptions of the good will thrive and others will wither away. For example, there might be comprehensive conceptions that seem plausible only if one is intolerant of others in various ways. In a well­ ordered society, tolerance will be inculcated, and hence comprehen­ sive conceptions of this sort will not easily gain adherents. However, it would seem correct to say that, in general, any comprehensive conception that could justify justice as fairness on its own terms, and hence be part of an overlapping consensus supporting the theory, would be able to thrive in a Rawlsian well-ordered society. 40

Notes I . John Rawls, A Theory ofJustice (Cambridge, Mass . : Harvard University Press, 1971), and Political Liberalism (New York: Columbia University Press,

John Rawls

19

1992). Between A Theory of Justice and Political Liberalism, Rawls developed and in part revised his theory through a series of important articles that have largely been incorporated into Political Liberalism. 2. The first of these aims is more salient in A Theory of Justice, the second in Political Liberalism . But see Political Liberalism pp. xvi ff. 3. An early article by Rawls is useful here: "Justice as Fairness, " Philo­ sophical Review, 54 (1955):164-94. Cf. also Rawls, Theory of Justice, pp. vii-viii, and "Justice as Fairness: Political Not Metaphysical," Philosophy and Public Affairs, 14 (1985):224-51. 4. This aim assumes central importance in Political Liberalism ; see the introduction, especially pp. xv-xxx. See also "Justice as Fairness" (1985), pp. 226-31, and "Kantian Constructivism in Moral Theory, " Jo urnal of Philosophy, 11 (1980):516-19. 5. Theory of Justice, pp. 47ff; §87. 6. Theory of Justice, pp. I 2ff, 19, §77; "Kantian Constructivism, " pp. 516-19 ; "Justice as Fairness" (1985), pp. 231-44. 7. Political Liberalism , pp. 11-15; Theory of Justice , §36 ; "Justice as Fairness," pp. 248-51. 8. Political Liberalism , p. 18 ; Theory ofJustice, pp. 7-11, 87ff; "Justice as Fairness" (1985), pp. 232-33. 9. Political Liberalism , pp. 36, 66, 136, 216ff; Theory of Justice, pp. 126-30, 520ff; "Kantian Constructivism," pp. 236ff; "Justice as Fairness" (1985), pp. 224-26. 10. Political Liberalism, pp. 10, 154 ; "Justice as Fairness" (1985), p. 230. 11. Political Liberalism, pp. 15, 39ff; "Justice as Fairness" (1985), pp. 250-57, and "The Idea of an Overlapping Consensus," Oxford Journal of Legal Studies, 1 (1987):1-25. 12. Political Liberalism, pp. 16ff; "Kantian Constructivism," pp. 528-30, 543-47; "Justice as Fairness" (1985), p. 232. 13. Political Liberalism, pp. 66-71 ; A Theory of Justice, pp. 16, 55ff; "Kantian Constructivism," pp. 536-39. 14. Political Liberalism, pp. 255ff; Theory of Justice , pp. 83-90, 274-84 ; "Kantian Constructivsm," p. 529. 15. Political Liberalism, pp. 19, 81, 103ff; Theory of Justice, pp. 12-19, 504-12; "Kantian Constructivism," pp. 524-28 ; "Justice as Fairness" (1985), pp. 233-34. 16. Political Liberalism, pp. 14-19, 152n, 175 ; Theory ofJustice, pp. 433-39 ; "Justice as Fairness" (1985), pp. 233-34. 17. Political Liberalism, p. 301 ; "Kantian Constructivism," pp. 544-45 ; "Justice as Fairness" (1985), pp. 240-41. 18. Political Liberalism, p. 35; Theory of Justice, pp. 453-62; "Kantian Constructivism," pp. 520-22. 19. Like Aristotle, Rawls thinks that good judgment is necessary in political philosophy: He has never been interested in the question of whether (or how)

20

Chapter One

one can persuade an immoralist or fanatic to be moral. Moreover, he seems to accept a distinction analogous to that made in philosophy of science between the "context of discovery" and "the context of justification" : how one arrives at a theory of political justice is a matter for psychology and sociology to investigate and does not fall within the scope or practice of political phi­ losophy. 20. Political Liberalism, p. 291. This is the formulation of the two principles that Rawls now accepts. It differs from Theory of Justice, p. 60 in two ways: First, the use of "scheme of equal basic liberties" in I is intended to make it clear that the liberty is specified by a list. Second, the subprinciples of II are given in the order that exhibits their mutual rank ordering in application (cf. Theory of Justice, p. 61). This new formulation and the reasoning behind it is explained in Political Liberalism, Lecture VIII. 21. Theory of Justice, §§ 11-14; "The Basic Liberties and Their Property," pp. 5-7. 22. Political Liberalism, pp. 294-99 ; Theory ofJustice, ch. 4. 23 . Political Liberalism, pp. 75ff, 179ff, 307ff; Theory ofJustice, pp. 90-95; "Kantian Constructivism," pp. 525-28 ; "Social Unity and Primary Goods," in A. Sen and B. W illiams, eds., Utilitarianism and Beyond (New York: Cambridge University Press, 1982), pp. 161-64. 24. Theory of Justice, pp. 75-83. 25. Theory of Justice, pp. 513-20; "Kantian Constructivism," pp. 515-35. 26. Political Liberalism, pp. 72ff; Theory of Justice, pp. 85ff, 120, 136, §87; "Kantian Constructivism," pp. 523-24. 27. Political Liberalism, pp. 24ff; Theory of Justice, pp. 136-42. 28. Political Liberalism, pp. 24-27, 35, 75; Theory of Justice, pp. 136ff; "Justice as Fairness" (1985), pp. 234-39. 29 . Political Liberalism, pp. 305ff; "Kantian Constructivism," pp. 520-22, 528-30; "Justice as Fairness" (1985), pp. 234-39. 30. Political Liberalism, p. 104 ; Theory of Justice, pp. 60-83 , 302-3 ; "The Priority of the Right and Ideas of the Good," Philosophy and Public Affairs, 17 (1988):255-60; "Social Unity," pp. 183-85. 3 l. Political Liberalism, pp. 48-54 ; Theory of Justice, pp. 143ff, 530-41 ; "Kantian Constructivism," pp. 530-35. 32. These are simplified versions of arguments in Theory of Justice, §26-29, but I have stated the first argument so as to make it clear that Rawls wishes to avoid having to base it on controversial theses of decision theory. 33. Rawls began his 1955 paper, "Justice as Fairness," as follows: "It might seem at first sight that the concepts of justice and fairness are the same . . . . In this paper I wish to show that the fundamental idea in the concept of justice is fairness ; and I wish to offer an analysis of the concept of justice from this point of view. "(p. 164) 34. Theory ofJustice, p. xi. 35. Theory of Justice, pp. 14-16.

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36. Political Liberalism , pp. 25n, 54; "Kantian Constructivism, " pp. 515-35. 37. Theory ofJustice, §§ l, 68. 38. Political Liberalism, Lecture V, passim. 39. Political Liberalism , pp. 204-11 ; cf. "Fairness to Goodness," Philo­ sophical Review 84 (1975):536-54, pp. 548-51. 40. Ibid.

Chapter 2

The Egalitarian Liberalism of Ronald Dworkin

Christopher Wolfe Ronald Dworkin, it is safe to say, is one of the leading figures today in Anglo-American jurisprudence. He is the successor to H. L. A. Hart as Professor of Jurisprudence at Oxford University and is also Profes­ sor of Law at New York University, having taught previously at Yale Law School. He has degrees from Harvard College, Oxford, and Harvard Law School, and served as clerk to Judge Learned Hand. A Chronology/Intellectual Topography of Dworkin's Work Dworkin's first major book, based on articles published in law reviews (Chicago, Yale, Harvard) and in the New York Review of Books between 1966 and 1976, was Taking Rights Seriously . 1 In it, Dworkin proposed to define and defend a new liberal general theory of law, one sharply critical of the ruling theory, which has its roots in Jeremy Bentham. Bentham's analysis has been developed, in its conceptual part (i.e., the part that says what law is), by H. L. A. Hart's version of positivism, and, in its normative part, by utilitarian economic analysis. The most important ground for Dworkin's critique of the ruling theory and its major critics on the right and the left is that they reject the idea that individuals can have rights against the state that are prior to the rights created by explicit legislation. Dworkin's theory places a concern for individual rights at the center of legal philosophy, although it shares with the ruling theory a rejection of earlier, meta­ physically based conceptions of natural rights. Dworkin develops a theory of adjudication that is both conceptual and normative in his chapter on "Hard Cases." Through an analysis of John Rawls's A Theory of Justice, he develops a theory of legislative rights based on the fundamental and axiomatic right of equality, or equal concern and 23

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respect. Finally, he provides a theory of compliance, which embraces theories regarding the nature and limits of a citizen's obligation to obey the law and norms for enforcement and punishment.2 Dworkin's ambitious enterprise was continued in A Matter of Princi­ ple, based on essays in various journals and books between 1978 and 1983.3 This book is essentially a refinement, extension, and applica­ tion, through discrete essays, of the basic views described in Taking Rights Seriously. Dworkin's most recent book, Law ' s Empire, system­ atized what was done through discrete essays in the first two books, setting out a theory of law in full-length form.4 He argues that "legal reasoning is an exercise in constructive interpretation, that our law consists in the best justification of our legal practices as a whole, a narrative story that makes of these practices the best they can be" (p. vii). In this book, Dworkin locates this theory of law's "foundations in a more general politics of integrity, community, and fraternity, . . . track[ing] its consequences for abstract legal theory and then for a series of concrete cases arising under the common law, statutes, and the Constitution" (p. viii). Its systematic character precludes excessively detailed examination of specific points (for which Dworkin refers his readers to A Matter of Principle). Dworkin's subsequent work includes a series of four articles on equality, an article on "Liberal Community, " and especially his Tan­ ner Lectures on Human Values, delivered at Stanford in 1988, entitled "Foundations of Liberal Equality." 5 It represents a movement in Dworkin's work from writing in which the center of gravity is specifi­ cally legal theory to writing that focuses on broader moral and political philosophy. The articles on equality attempt to flesh out Dworkin's definition of his version of liberalism, ' ' liberal equality,'' and to show the interconnectedness and consistency, indeed the fundamental unity, of its different parts (relative to issues of distribution of resources, personal liberty, and political rights). In "Liberal Community, " he argues that liberal tolerance not only is not incompatible with commu­ nity, but that it supplies the best interpretation of the idea that people should identify their own interests with those of their political community. Dworkin's aim in the Tanner Lectures is "to find ethical foundations for liberalism." He eschews an attempt to find self-evident axioms from which liberal principles flow, contenting himself with showing "how liberalism as a political philosophy connects with another part of our intellectual world, our ideas about what a good life is" (p. 3). Dworkin rejects the most typical liberal strategy for explain­ ing to people why they should be liberals, a strategy of "discontinu-

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ity," which requires them to set aside their convictions about the good life when they act politically. He tries to construct and defend a competing strategy which argues that liberalism is continuous with the best personal ethics, with the right philosophical view of the good life. The heart of his argument is that most people's ethical intuitions are best explained by a view of ethics that focuses not on the impact or consequences of a life but rather on meeting the challenge of living skillfully, and that this ''challenge model'' supports the ideal of liberal equality. Having provided a brief outline of Dworkin's developing work in legal and political philosophy, in the rest of this article I want to do three things: first, describe the major points of his constructive theory of law ; second, lay out his particular understanding of the content of liberalism ("liberal equality"); and third, summarize his argument about the ethical foundations of liberalism. The Constructive Theory of Law Dworkin distinguishes between empirical disagreement about law (whether the legislature really passed a statute forbidding something) and theoretical disagreement (the grounds of law-what makes a particular proposition of law true, even if there is no empirical dis­ agreement about what statutes and precedents have said). But legal philosophers often evade this distinction, he says, and argue that theoretical disagreement is an illusion. This "plain-fact" view holds that disagreement is a result of empirical mistakes or of disputes over what the law should be, issues of law and morality. In its popular form, this view is reflected mainly in the focus on whether or not judges have been "faithful" to the law, although some people take the view that judges ought to improve the law whenever they can. Academics, who are less likely than laypeople to assume that what is in the lawbooks is decisive, have a different plain-fact view: The law is silent and judges inevitably must exercise discretion and make new law. (They vary over how this discretion should be exercised, democratically or adven­ turously.)6 Yet concrete hard cases involving common law, statute, and consti­ tution all seem to focus on what the law is, not just what it should be. How do academic adherents of the plain-fact view explain this? They do so by what Dworkin calls semantic theories, which hold that lawyers and judges do use the same criteria in deciding when proposi-

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tions of law are true. The dominant theory is legal positivism, which emphasizes specific historical events. 7 If positivism is right, and disagreement is only on what legal institu­ tions have actually decided in the past, rather than the theoretical question of what the criteria for law are, why do judges and lawyers seem to argue about not merely whether to be faithful to the law or what the law should be, but what the law is? Some positivists say it is a pretense, given public belief that there is always law and that judges follow it. Others argue that "law" has a standard meaning, but is used differently with regard to some marginal cases. And yet the differences seem to arise not just in "borderline" cases, but also in "pivotal" ones. Why deny theoretical disagreement then? Positivists think that is the only way to avoid nihilism. 8 Dworkin proposes a different account of theoretical disagreement, using as an example the case of a community with shared practices and traditions whose members make and dispute claims about what is the best way to interpret them. Interpretation of a social practice and artistic interpretation are examples of "creative interpretation" of entities people have not made themselves, in contrast to interpretation of ordinary conversation, which focuses on intentions. Creative inter­ pretation is not conversational, but constructive, and it is concerned not with the purposes of the author, but the purposes the interpreter imposes on an object or practice to make it the best possible example of the form or genre to which it is taken to belong. The interpreter cannot do whatever he wants, for he is constrained by the history and shape of the practice or object.9 Dworkin refines the notion of constructive interpretation by noting various stages of interpretation: the preinterpretive stage, in which the rules and practices that provide tentative content to the practice are identified; the interpretive stage, at which the interpreter settles on some general justification for the main elements of the practice identi­ fied earlier; and the postinterpretive stage, at which the interpreter adjusts his sense of what the practice really requires so as better to serve the interpretive justification. Dworkin also distinguishes between concept, the core idea of a practice, and conception, the competing ways of spinning it out; and he notes the importance of certain paradigms, concrete examples which any interpretation must fit. 1 0 Law, then, according to Dworkin, is an interpretive concept, and general theories of law are constructive interpretations, trying to show legal practice in its best light to achieve equilibrium between legal practice as the interpreter finds it and the best justification of that

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practice. Dworkin argues that the most abstract and fundamental point of legal practice is to guide and constrain the power of government, by insisting that force not be used or withheld, no matter how useful, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified. More particular conceptions of law refine this concept by answering three questions: Is there any point to requiring public force to be used only in this way? If so, what is it? And what notion of "consistency with past decisions" best serves it? 1 1 The three main rival conceptions Dworkin identifies are convention­ alism, legal pragmatism, and law as integrity. 12 Conventionalism says that there is a point to the law's constraint of coercion (the predictabil­ ity and procedural fairness the constraint supplies) and that rights or responsibilities flow from past political decisions only when they are explicit or can be made so in conventionally accepted ways. Legal pragmatism answers the first question negatively (there is no point) and offers the interpretation that judges do whatever seems to them best for the community's future, not counting consistency with the past as valuable. Law as integrity accepts law and legal rights, but says that the point is not merely predictability or procedural fairness but the securing of an equality among citizens that makes their community more genuine and improves its moral justification for exercising the political power it does. It says that rights and responsibilities flow from past decisions not only when they are explicit, but when they follow from the principles of personal and political morality that the explicit decisions presuppose by way of justification. Dworkin examines each of these three conceptions, evaluating it for fit (how well does it explain our legal practice?) and then for how well it justifies those practices. Conventionalism can make a plausible initial case for fit, but it is inadequate in the end because, paradoxically, it does not take conventional sources of law seriously enough (judges are grappling with law long after its explicit extension has run out) and because over time there have been so many dramatic changes in legal practice that cannot plausibly be considered the result of convention. Does conventionalism's ideal of protected expectations justify our legal practice as a whole? One argument is that it is necessary to prevent parties being surprised, because that is unfair. But because the explicit extension of convention runs out fairly quickly, conven­ tionalism authorizes judges to make law at that point, so that will allow surprises too. (If strict conventionalism or unilateralism-that the defendant should win in the absence of an explicit extension of

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convention�enies that, it does not remotely fit with our practices. ) Thus, a new justification-the need for a blend of predictability and flexibility-is necessary. But conventionalists cannot make a persua­ sive case that they provide such a blend better than pragmatists do. Pragmatism, for the very reasons conventionalism fails, seems as if it might offer a more adequate account of our legal practice. But Dworkin argues that it too fails on the first count. It requires us to ignore or treat as deception the judicial opinions that grapple with problematical statutes as if consistency with the past really mattered. Is pragmatism attractive as a political justification of state coercion? Pragmatism is a skeptical conception of law, rejecting the idea that rights are trumps over what would otherwise be the best future, properly understood. Legal rights are only instruments for the best future. Although there are some advantages to this, Dworkin argues that such a conception is incompatible with the claims of integrity. Ordinary politics shares certain goals with utopian political theory (fairness, justice, procedural due process), but it also has a further ideal: the virtue of political integrity, by which government must act in a principled and coherent manner toward all its citizens, extending to everyone the substantive standards of justice or fairness it uses for some. In a society where people disagree about justice, it is important to be able to recognize that other people's acts can express a concep­ tion of fairness or justice or decency even when we do not endorse that conception ourselves. This ability is an important part of our more general ability to treat others with respect, and it is therefore a prerequisite of civilization. Integrity as a distinct political virtue pro­ vides a basis for recognizing legal rights, for it justifies a commitment to consistency in principle for its own sake. Dworkin finds in our instinctive rejection of "checkerboard solutions" (arbitrary internal compromises, such as compromise on abortion that would allow it for pregnant women born in even years but not for those born in odd years) evidence that integrity is recognized as a virtue in our political life. A long argument grounding the attractiveness of integrity ends in the conclusion that the problem of legitimacy is best resolved in a true community of principle. A community of principle, which takes integrity to be central to politics, assimilates political obligations to the general class of associative obligations (responsibilities attaching to our membership in some biological or social group). A community with a general commitment to integrity meets the requirements for legitimate associative obligations because it expresses a concern by

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each for all that is sufficiently special, personal, pervasive, and egali­ tarian. Law as integrity insists that legal claims are interpretive judgments and therefore combine backward- and forward-looking elements. They interpret contemporary legal practice seen as an unfolding political narrative. The adjudicative principle of integrity instructs judges to identify legal rights and duties, as far as possible, on the assumption that they were all created by a single author-the community personi­ fied-expressing a coherent conception of justice and fairness. Propo­ sitions of law are true, then, if they follow from the principles of justice, fairness, and procedural due process that provide the best constructive intepretation of the community's legal practice. The image of law as integrity that Dworkin gives is a chain novel, in which one author writes a chapter, then passes it on to another whose obligation is to continue the novel, making it the best that it can be. The writing can be judged on two dimensions. First, it must fit the parts that have been written previously, that is, provide an interpreta­ tion that has general explanatory power and flows throughout the whole text (although there may be no interpretation that fits on all points). Second, when more than one interpretation fits the bulk of the text, the writer should judge which of the eligible readings, all things considered, makes the work best. Judges who accept law as integrity decide hard cases by trying to find, in some coherent set of principles about people's rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community. Convictions about fit will provide a rough threshold requirement. When more than one interpre­ tation fits, then the judge must choose between them by asking which shows the community's structure and decisions in a better light from the standpoint of political morality.

Liberal Equality Having described the more formal aspects of Dworkin's legal theory, let us move on to its substantive political content: liberal equality. 1 3 The most efficient exposition of liberal equality, says Dworkin, begins with an account liberalism gives of the just distribution of property, that is, control over resources. The ideal distribution is achieved only when the resources different people control are equal in the "opportunity costs" of those resources (i.e., the value they would

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have in the hands of other people). The economist's envy test-this is not a psychological usage of the term envy-is thus the test for ideal equality: Equality is perfect when no member of the community envies (would prefer to have) the total set of resources under the control of any other member. (This test can be met even when welfare or happiness or well-being are unequal: for example, if my ambitions are more expensive or difficult to achieve but I still would not trade my resources for yours. ) Under certain assumptions, this envy test would be met if we all started with an equal number of auction tokens and bid for all resources and kept the auction going until no one wanted it run again. The problem with this approach is that people have two kinds of resources, personal and impersonal. Impersonal resources-things that can be owned and transferred-can be bid for, but personal resources-physical and mental health, strength, talent-cannot. An­ other problem is that some people have more luck than others. To deal with these problems, liberal equality insists on compensatory strategies to repair the inequalities in personal resources and luck. Redistributive schemes financed by general taxation can be modeled on hypothetical insurance markets to achieve at least substantial advances toward equality. This analysis of distributional equality suggests how liberal equality connects equality and liberty. An egalitarian society, in this sense, must be a free society. Invasions of liberty (e.g., criminal laws prohibit­ ing certain ways of life) are invasions of equality as well, unless they can be justified as necessary to protect an egalitarian distribution of resources and opportunities by providing security of person and prop­ erty or in some other way. Because no laws based on personal morality could pass that test, liberal equality supports liberal tolerance in matters of personal morality. Liberal equality in political matters does not consist in equality of impact or influence over the community's decisions (political power not being treated as a private resource). Rather it is a matter of distributing the vote and protecting political liberties so as to serve the other goals of liberal equality: the distributive goals already mentioned, but also participatory goals. For example, liberal equality supposes that a worthwhile life includes political activity as an extension of moral experience and insists that the opportunity for genuine political engagement be available to all who are willing to take it up. This means more than just a formal opportunity to vote: it means that politics must be organized so that it can be a theater of moral argument and

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commitment based on the responsibilities of community rather than only another market for discovering passive revealed preferences. The familiar liberal political rights (e.g., freedom of speech and religion), embedded in a political culture of expression and reason, are at least as important as full suffrage. This brief sketch shows how liberal equality fuses together equality, liberty, and community into an overall political ideal. Dworkin emphasizes that liberal equality sharply distin­ guishes between personality and circumstance. People are to be equal in resources, so far as possible (including personal resources), but they are not to be equal in their welfare. They take responsibility themselves for their tastes and projects and ambitions and other features of personality in virtue of which one person may count his life better or worse than another who has identical resources. (No one has a right to more resources just because his tastes are more expensive, for ex­ ample.) Dworkin also emphasizes that liberal equality requires tolerance: it insists that government must be neutral in ethics; it may not forbid or reward any private activity on the ground that one set of substantive ethical values (one set of opinions about the best way to lead a life) is superior or inferior to others. These main points in Dworkin's definition of liberal equality will be developed further, in his arguments in defense of liberal equality. The Ethical Foundations of Liberalism The Rejection of Discontinuous Strategies Traditional, contractarian liberal theories from John Locke onward (Dworkin expresses doubt about calling Thomas Hobbes a liberal ) have used a "discontinuous" strategy to defend liberalism, that is, one in which a person adopts two different, unrelated perspectives in matters of personal life and in political life. The perspective in personal life includes concerns rooted in two different departments of ethics: well-being (personal preferences and beliefs about what life is good for oneself) and morality (how to respond to others' needs and ambitions). The liberal political perspective, on the other hand, seems to command that we set aside our notions of well-being, our convictions about the good life, and make political decisions with a certain kind of impartial­ ity. In the personal arena, people are committed and attached; in the political arena, they should be neutral and impartial. How is liberalism

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to deal with this apparent conflict between liberal politics and ordi­ nary ethics? 14 Social contractarians, in proposing a "discontinuous strategy," note that in contractual situations people are typically driven by the first set of considerations (the personal perspective that emphasizes self­ interest) and they try to provide a similar motive for the political contract. Rawls is interesting especially because he tries to base the contract at least partly on morality and not just on self-interest. This would make the social contract theory more palatable to many and improve the discontinuity strategy. This strategy has promise in terms of the political requirement of consensus, getting people with very different substantive views to agree on some political theory as a basis of government. Its main problem is that, in addition to consensual promise, theories of justice also need "categorical force," a moral basis or ground for collective responsibility other than consent (be­ cause liberals argue that certain political acts ought to be done even before consent has been secured). Dworkin surveys some contempo­ rary liberal thinkers (oriented toward the discontinuity strategy) and concludes that they cannot provide the categorical force liberalism claims, and cannot thereby reconcile the two perspectives. 1 5 Dworkin proposes a strategy of continuity, which provides a inore integrated moral experience, in which peoples' politics match their personal convictions about what it means to live well. This effort to provide new ethical foundations for liberalism requires him to under­ take an excursion into philosophical ethics. 1 6 In particular, he must show how, in a strategy of continuity, political neutrality can grow out of ethical commitment. His answer lies in a distinction between philosophical ethics, where liberalism takes sides, and more substan­ tive levels of ethics, where the side it takes at the philosophical level dictates neutrality. Liberal ethics must be abstract enough not to rule out conceptions of the good life likely to be popular in our community, yet it must be sufficiently distinctive and muscular to lead those who embrace it to liberal politics. According to liberal ethics, our views of the good life are not "bracketed" and placed to the side when we engage in politics (as they are in discontinuous strategies for defending liberalism)-in fact, liberal politics gives full effect to our most compre­ hensive and philosophical convictions about them.

Critical Interests and Some Anxieties Dworkin starts out by distinguishing between volitional and critical interests. Volitional interests are what I want and critical interests are

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what I should want (what my not wanting would make my life worse). 1 7 Liberal ethics requires us to concentrate on critical, as distinct from volitional, well-being. 1 8 Dworkin then elaborates a series of worries and puzzles about critical interests, points on which our intuitions seem often to be inconsistent. 19 They include the following: Significance: People who are self-conscious about the question of living well treat that question as a matter of capital importance. What are the grounds for this? A single human life is such a small point in the universe. Transcendent or Indexed?: Are ethical values transcendent (every­ where and always the same) or are they indexed in some way to culture and ability and resource and other circumstances, so that the best life for a person in one situation is very different from the best life of a person in another? If we reject the transcendent view, can ethics be more than merely subjective? Ethics and Morality: What is the connection between self-interest and morality? Is living well wholly independent of living justly (e.g., Cezanne dodging the draft out of a desire to paint)? Or is justice a component of critical well-being, but still not the whole story? Or is there no conflict, because one can never lead a critically better life through unjust acts, as Plato thought? (Critical interests are, after all, supposed to be normative. ) Additive or Constitutive?: Must a person recognize experiences or relationships or events as good for them to count as components of a good life? The additive view says that one can judge a person's life good or bad, apart from his opinion of its value. (For example, wouldn't Adolph Hitler have been better off if he had been locked up in adolescence?) The constitutive view says that no component may contribute to the value of a person's life without his endorsement. (For example, coerced religious acts cannot improve the value of a life.) Ethics and Community: Finally, what is the unit of ethical value, that is, the entity whose life ethics aims to make good? The individual (because we consider ethics entirely personal) or the community (does the community have an ethical life of its own on which the critical success of an individual's life depends to some degree, as some contemporary Germans feel responsibility for the Holocaust)? Models of Critical Value These puzzles arise because our ethical instincts and impulses reflect two distinct models of value, which are interpretations of ethical

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experience rather than efforts to offer any general argument of ethical value from the ground up. 20 They respond not so much to general doubt about ethics as a whole (external skepticism) but to doubts about how to organize the various ethical intuitions most of us have (internal skepticism), by showing how most of our convictions, at least, can be saved by looking at them in a certain light. The Impact Model: This model holds that the value of a good life consists in its product, that is, in its consequences for the rest of the world-for example, discovering cures or composing great music or benefitting a race or country. (The model abstracts from the specific question as to what good consequences are. ) Although it finds support in some ethical intuitions, it makes some popular views about critical interests seem silly and self-indulgent, for example, those that focus on doing something well just to do it, apart from any consequences it may have (e.g., learning to play a musical instrument). Examples of the impact model that Dworkin gives are aestheticism (producing great works of art), theological anthropocentrism (pleasing God), and hedonistic anthropomorphism (adding to human pleasure, on some utilitarian calculus). 21 The Challenge Model: This model argues that the value of a good life lies in the inherent value of a skillful performance of living. Living a life is itself a performance that demands skill. It is the most comprehen­ sive and important challenge we face, and our critical interests consist in the achievements, events, and experiences that mean we have met the challenge well. It assumes we have convictions about how to live, but it does not judge these. It tells us that we will understand our ethical life better if we see our convictions as opinions about the skillful performance of a self-assignment rather than just as opinions about how we can change the world for the better. This model is said to have dominated Greek ethics, especially Aristotelian ethics, and in the modern period it has played a crucial part-in distinct battle with ethical skepticism-in the development of humanist ethics. 22 Dworkin then engages in a long and complicated effort to show how the two models respond to the various puzzles of ethics. 23 The upshot of that discussion is that interpreting the convictions that we have as convictions about a skillful response to a complex challenge gives them more sense and coherence than the alternate general interpreta­ tion, that they are convictions about having the best impact. No systematic summary of this complicated argument is possible in a brief paper, but it is important to note several of the conclusions Dworkin draws in this discussion. The impact model treats all our

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circumstances as limitations on the quality of life we can lead. The challenge model treats some circumstances as limitations, but others as parameters that help define what a good performance of living would be. Some of these parameters are normative, defining our ethical situation not as it is but as it should be; that is, our lives can go badly not just because we are unwilling or unable to respond to the circumstances we have, but also because we have the wrong circumstances and cannot face the right challenge. (For example, most of us treat the inevitability of death as a parameter rather than a limitation, yet dying young-before the typical lifespan with its variety of challenges-is treated as a tragedy. ) Some parameters are hard (their violation makes life a total failure), whereas others are soft (they only reduce the value of a life; for example, Mozart's life was reduced by an early death, but was still brilliant).24 Justice is a normative parameter, according to Dworkin. If living well consists in responding in the right way to the right challenge, then life goes worse when the right challenge cannot be faced because of injustice. (Even the person who is given more than what is just faces the wrong challenge and thereby has a worse life. )25 With some limited exceptions, the challenge model leads to a rejec­ tion of paternalism regarding critical interests, because the challenge model fuses ethical value and choice (the principle of ethical integrity). Nothing can improve the critical value of a person's life unless it is seen as an improvement by the person whose life it is. (This does not make ethics subjective, because living out of conviction requires reflection, coherence, and openness to the examples of others. I must want to live a really good life and not merely one I think is good. ) The challenge model also rules out conceptual paternalism (educational devices for removing bad options from a person's view) because that view assumes an independent, transcendent picture of ethical value that the model begins by rejecting. 26

Ethical Liberals and Liberal Equality The final part of Dworkin's argument is that the ethical roots of political liberalism are found in the challenge model of ethics. He sets up a thought experiment, trying to show how conversation among ethical liberals (i.e., those who, despite very great substantive differ­ ences, accept the challenge model) would lead to their acceptance of liberal equality.27

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Again, through a long and complicated argument, Dworkin shows that ethical liberals would come to the following conclusions. l ) They would define justice in terms of resources rather than in terms of welfare. Welfare-based theories suggest a two-step procedure: first, each citizen decides what level of well-being he would reach under different proposed arrangements, and second, officials select those arrangements that divide things in the fairest way under the version of justice adopted. This approach seems more oriented toward volitional than critical interests or toward critical interests on the impact model. But it makes no sense for the challenge model, according to which ethics and justice are dynamically interrelated. Ethical liberals accord­ ingly need an account of justice in which resources enter ethics as normative parameters, which only a resource-based view of justice provides. Moreover, another reason for ethical liberals to reject wel­ fare-based views is that the two-step procedure has officials trying to ensure that people lead lives that are equally good. Even if they could do so (which is doubtful) , this would undermine the challenge of living (which includes the identification by each person of what life is good for himself ). Government's task under the challenge model is to help people live good lives by trying to make circumstances what they should be. 28 2) Ethical liberals will agree that the just share of resources is an equal share. They must treat the question of justice as a part of ethics, deciding what share of resources each should have by deciding what parameters it is appropriate for each person to accept as defining the character of a life good for himself. Suppose they begin with a presumption that all members of a community start with the same abstract ethical challenge and therefore deserve an equal share of resources? What counterarguments are available? Eliminating argu­ ments that do not acknowledge justice as a parameter of ethics, the only counterarguments left are those that appeal to the inherent difference or worth of different people or groups. But ethical liberals cannot accept that society's institutions predefine different challenges in living for different people, because each person is to decide his own ethical identity. It obscures and demeans the stark challenge of ethics, the categorical force of the imperative to live well, to locate its source in anything more contingent than our being persons with lives to live. Nonegalitarian theories demean ethics by supposing it is the job of politics rather than people to construct the parameters of ethical identity. Thus, the challenge model supports equality of resources directly, as flowing from people's sense of their own best interests

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critically understood. Moreover, this reinforces the fact that justice is a parameter of ethics: Living well has a social dimension, and I live less well in community with others if they treat my efforts to lead a good life as unimportant. Indeed, everyone is insulted by a political and economic system dedicated to inequality, even those who profit in resources from injustice, because a structure of community that as­ sumes the challenge of living is hypothetical and superficial denies the self-definition that is part of dignity.29 3) Ethical liberals have no difficulty harmonizing the partiality of the personal perspective (I care more about my friends than about strangers) with the equality of the political perspective on which they have now decided. Welfare-based theories have the problem that politics is com­ mitted to reestablishing the equal welfare that private individuals undo by their efforts to live better. But equality of resources is not undone by the partiality of my personal choices, and the effects of my private efforts. Equality of resources licenses partiality.30 4) Ethical liberals agree not to include among the personal resources to be made equal various features of personality (e.g., preferences, tastes, convictions, predilections, ambitions, attachments). The alterna­ tive line to draw between what is compensable and what is not would be whether differences between people are voluntary. (Handicaps are compensated, a cultivated taste for caviar is not.) But that distinction breaks down because tastes are cultivated in response to higher order ambitions that are not deliberately cultivated. So all tastes, etc., would be part of circumstances and compensated, and equality of circumstances would collapse back to equality of welfare. Liberal equality does not assume that people choose their beliefs, but only supposes that they reflect on them and choose how to act on the basis of those reflections. Liberal equality aims to make people equal in their circumstances, for example, talents and handicaps. But convic­ tions and preferences are plainly not opportunities or limitations in identifying and pursuing what a person deems to be a good life, but rather essential components of his view of the good life; they cannot be limitations because the person would be worse, not better off, without them. The distinction between handicaps and convictions is arbitrary only from the voluntarist perspective that assumes all peple want at bottom the same thing: utility or pleasure. But voluntarist ethics is untrue to most people's actual ethical experiences, according to which our deep (perhaps unattainable) ambitions are not obstacles to living the life we most want to lead.31 5) Ethical liberals would agree on liberal tolerance or neutrality.

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Neutrality has two forms: neutrality in appeal (the ability to be ac­ cepted by a great variety of ethical traditions) and neutrality in opera­ tion (tolerance, even general tolerance of illiberal bigots). 32 The con­ tractarian tradition begins in the ambition to make liberalism ecumenical or neutral in appeal and urges toleration (neutrality in operation) to that end. Dworkin (who once embraced that view but has changed his position) argues that liberalism based on a continuity strategy begins in ethics and comes upon neutrality in the course of its argument, as theorems (not axioms). Dworkin agrees that liberal ethics is not neutral in appeal or ecumenical in the strong sense that it can be drawn from convictions almost everybody already holds. He settles for the weaker sense that liberal ethics could be generally accepted without people having to abandon what they believe is important to them, that is, their convictions of ethical identity and their substantive views about living a life well, given that ethical identity. No one would have to abandon his first-person ethical views. People would have to abandon views requiring them to force other people to act rightly-the "third-person beliefs" involved in coercive critical paternalism. Thus, liberal equality gives promise of consensus, because it is far less utopian to hope that people will give up their third-person than their first-person beliefs. That does not apply, of course, to the fanatic who thinks that God will punish him, for eternity, unless he kills us. We must not tum our backs on him, or on his luggage, but he cannot be part of our liberal community.33 A liberal community embraces neutrality in operation (or toleration), denying the legitimacy of outlawing a kind of life because it is demean­ ing or corrupt, although it is conceded not to be unjust. Dworkin acknowledges that liberal equality is not ethically neutral in its effects, because some lives will be more difficult or expensive in a liberal society-but that is not in virtue of a condemnation of those lives but is due to liberalism's conception of justice.34 How is it that ethical liberals, who hold very different substantive ethical views passionately, can accept tolerance, rather than letting their personal ethics be carried over to politics? Liberal equality permits them to do so, but denies them one weapon: they may not forbid someone to live a life simply because they think his ethical convictions wrong. The conclusive reason ethical liberals have for that is that they accept an account of justice demanding equality of circumstances, and laws are a part of people's circumstances. This does not require ethical liberals to bracket their ethical convictions, but gives full force to them. They cannot make their own lives better

Ronald Dworkin

39

by ignoring limits justice sets to their power, and they cannot make others' lives better because, on the challenge model, someone's life cannot be improved against his own steady convictions. 35 Liberal equality then demands tolerance, but one short of what some of its critics think liberalism aims at. It will have the result that some lives are more difficult to live. It leaves room for short-range educational paternalism that looks forward to genuine endorsement. And liberalism's tolerance is not global, because it must disapprove other theories that dispute its principles. (Therefore, liberal neutrality is not compromised when a thief whose idea of the good life is theft is punished, or when a racist whose life mission is to promote white supremacy is thwarted. ) In one general respect, then, liberal equality is not neutral: in regard to third-person ethics, or first-person ethics that are parasitic on third-person ethics.36 In summary, then, adopting the challenge model of ethics leads people to see that their own personal convictions are parasitic on justice; that they therefore must accept a resource-based view of justice ; that the only appropriate resource-based conception for ethical liberals is egalitarian; that the liberal conception of justice condemns ethical intolerance; and that the paternalistic objection (based on the view that people's lives can be made better against their own convic­ tions) is mistaken. Conclusion Much remains for Dworkin to do, to develop the philosophical grounds of his legal theory, especially a more substantial argument for the superiority of the "challenge model" of ethics. In particular, he will have to construct a much more plausible alternative model than the "impact model," which appears to be something of a straw man. For example, no one argues that a person's ethical life is good simply because it produces good extrinsic results, entirely apart from the disposition or intention of the person. The challenge model too will need further development, because it may be doubted that the chal­ lenge of living can be divorced from the question of objective human ends as thoroughly as Dworkin separates them. His citation of Aris­ totle as an example of the challenge model suggests this problem: on Aristotle's own self-understanding it would be absurd to cite his approach to ethics while divorcing it from a specific conception of human ends. The search for formalistic agreement in ethics (divorced

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from substantive content) may be necessary ' for an antiperfectionist liberal ethics, but it seems unlikely to provide a solid foundation for political life and community.

Notes l . Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977). 2. John Rawls, A Theory ofJustice (Cambridge, Mass. : Harvard University Press, 1971), pp. vii-xv. 3. Ronald Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985). 4. Ronald Dworkin, Law's Empire (Cambridge, Mass.: Harvard University Press, 1986). 5. The four articles on equality are: " W hat is Equality? Part 1 : Equality of Welfare," Philosophy & Public Affairs, 10 (1981): 185-246 ; " W hat is Equality? Part 2: Equality of Resources," Philosophy & Public Affairs, 10 (1981) 283-345; " W hat is Equality? Part 3: The Place of Liberty," Io wa Law Review, 73 (1988): 1-73 ; and " W hat is Equality? Part 4: Political Equality," University of San Francisco Law Review, 22, no. l (1987): 1-30. "Liberal Community" appears in California Law Review, 77 (1989):479-504. • 'Foundations of Liberal Equality" is in Tanner Lectures on Human Values volume 2 (Salt Lake City: University of Utah Press, 1990), pp. 1-119. 6. Law's Empire, pp. 3-9. 7. Law's Empire, pp. 31-35. Other semantic theories include ( I ) natural law theories, which argue that the criteria for law are not factual, but to some extent moral, and (2) legal realism, which argues that law depends on context, and in particular on certain kinds of predictions about what judges will do or how the law will develop. 8. Law's Empire, pp. 37-44. 9. Law's Empire, pp. 46-65. 10. Law's Empire, p. 65. 1 l . Law's Empire, pp. 87-94. 12. Dworkin deals with conventionalism in Law's Empire, chapter 4, with legal pragmatism in Law's Empire, chapter 5, and with law as integrity in Law's Empire, chapters 6-7. 13. Tanner Lectures, pp. 36-42. 14. Tanner Lectures, pp. 16-22. 15. Tanner Lectures, pp. 22-35. 16. Tanner Lectures, pp. 42-88. 17. This is not simply the distinction between subjective and objective well­ being. My volitional interests are not simply my possibly mistaken judgments

Ronald Dworkin

41

about my critical interests; for example, I can reasonably want some things that are not critical interests. No more inclusive category of well-being can adjudicate conflicts between them. 18. Tanner Lectures, pp. 42-47. 19. Tanner Lectures, pp. 47-53. 20. Tanner Lectures, pp. 53-55. 2 1 . Tanner Lectures, pp. 55-57. 22. Tanner Lectures, pp. 57-58. 23. Tanner Lectures, pp. 59-88. 24. Tanner Lectures, pp. 66-7 1 . 25. Tanner Lectures, pp. 71-75. 26. Tanner Lectures, pp. 77-86. The community may, however, collectively endorse and recommend ethical ideals not adequately supported by the culture and it may provide for compulsory education if is is sufficiently short-term and noninvasive and likely to be genuinely endorsed. That flows from the central, constitutive role the challenge model assigns to reflective or intuitive judgment. 27. Tanner Lectures, pp. 88-1 18. 28. Tanner Lectures, pp. 93-98. 29. Tanner Lectures, pp. 98-104. In his article on "Liberal Community," Dworkin relies heavily on the notion that facing the challenge of living well requires having the right circumstances (including the circumstances of living in a just society, as defined by liberal equality, in which, for example, one has neither more nor less than the resources to which one is entitled. 30. Tanner Lectures, pp. 104-6. 3 1 . Tanner Lectures, pp. 106-10. 32. Tanner Lectures, pp. 1 10-1 1 . 33. Tanner Lectures, pp. 1 1 1-13. 34. Tanner Lectures, pp. 1 13-14. 35. Tanner Lectures, pp. 1 14-16. 36. Tanner Lectures, pp. 1 17-18.

Chapter 3

David A. J. Richards: A Liberalism of the Autonomous Person

John Rittinger Toward a New Liberalism David A. J. Richards is Professor of Law at New York University and Director of NYU's Program for the Study of Law, Philosophy, and Social Theory. His publications cover a broad scope of interests, including constitutional and criminal law, political philosophy, and ethics. In this study I focus on his work entitled Toleration and the Constitution and I make occasional reference to two books, Founda­ tions of American Constitutionalism and Sex, Drugs, Death and the Law. Two articles of interest for our purposes are "Human Rights and Moral Ideals: An Essay on the Moral Theory of Liberalism" and "Rights and Autonomy." 1 The work of Richards may be appreciated as a continuation of the contract theory of Rawls; he applies the theory to an interesting set of legal and constitutional issues, focusing on privacy. In addition he provides a comprehensive philosophical base in a Kantian account of the person. This makes his work engaging and challenging on multiple levels. There is a mission in Richards's work to purge American thought and culture of its religious influence; this includes what Rich­ ards calls its Calvinistic public morality and also natural law principles derived from Catholic morality and tradition. 2 One might say that Richards engages in a brand of revisionism, reinterpretation, and critique of the American tradition to arrive at its pure Enlightenment basis. Richards's work is animated by a grand democratic vision of a "national community of principle," based on human autonomy and human rights. Such a vision demands the radical critique and elimina­ tion of premodem communities and traditions that have practiced majoritarian tyranny and degradation of persons. 3 Indeed, Richards's 43

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liberalism is offered as a fundamental alternative to the ancient account of social and political life. Richards stresses the radical departure in ethics and politics charac­ teristic of the modern theory of rights elaborated by John Locke, Jean­ Jacques Rousseau, and Immanuel Kant.4 The new account stresses the autonomy of the person-a self-critical freedom to order one's own life. The person may claim a freedom from convention and a freedom from domination in the name of equal respect for persons. By way of contrast, the premodern view stressed "hierarchy of being" or "chain of being." Man has neither the radical freedom nor the absolute equality claimed by the modern account. Richards credits late medie­ val nominalism and voluntarism with shattering the notion of hierarchy of being, and he credits the Reformation disputes over the interpreta­ tion of the Bible and tradition with bringing to the fore the "integrity of interpretative conscience" and the equal respect for persons as originators of claims. 5 The moral idea of personhood grounding human rights appears to be such a radical departure that premodern man may not actually have been a person as so defined. Consider the following remark: Persons originate claims when they make claims and demands as an expression of their own internal capacities of personal judgment, reflec­ tion, and will. Such capacities are not in play when persons are thought of as having preassigned places or roles, irrespective of such capacities or their exercise. For example persons are not thought of as having these capacities when they are defined solely by their functional utility in some larger design which alone specifies the status, place and worth of the person (for example their role in some political or social hierarchy or religious theocracy). 6

Richards thus poses a stark alternative; for example, social convention may not allow one to exercise the capacity of freedom because of aristocratic or theocratic hierarchy.7 Claims are defined by an exter­ nally imposed system of appropriate roles; such a system is "contemp­ tuous of the just liberties of a free person because it denies in principle the place or weight of such capacities of persons for rational free­ dom." 8 Such is the moral degradation of women today, Richards claims. Such degradation lies at the heart of alternatives to liberalism, whether it be ancient Greek, medieval Christian, or contemporary conservative. Liberalism achieves the true and most pure form of morality and religion. In his article "Rights and Autonomy," Richards elaborates on the

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deficiency of Greek political theory and practice in regard to its hierarchical systems and denials of equal respect for persons. The many were incapable of a truly ordered life and needed rule by the best. So too, Aristotle justified slavery and subordination of women as children little better than slaves. 9 This ancient and long-standing tradi­ tion was absorbed by medieval culture and continues to this day ; it denies women their full personhood. The degradation of women con­ tinues even now with the imposition of arbitrary structures of natural gender hierarchy and domination; the protection of women from such oppression is at the heart of American Constitutionalism. In fact, Richards expresses astonishment at the attraction of Aristotelian politi­ cal philosophy, citing MacIntyre by name. 10 The alternatives must be studied and understood, but Richards thinks the quarrel has been patently settled. The ostensible subject and burden of Richards's work is the standard problem of judicial review and cases involving privacy rights; as a good liberal, he wishes to demonstrate the constitutional legitimacy of the right to privacy, its rightful application in such cases involving the use of contraceptives in marriage (Griswold v. Connecticut), nonmari­ tal use of contraceptives (Eisenstadt v. Baird), pornography in the home (Stanley v. Georgia), and abortion services (Roe v. Wade). In addition he criticizes the Supreme Court for its failure to apply privacy rights to consensual homosexual acts (Doe v. Commonwealth's Attor­ ney): "Doe is deeply, morally wrong." l l Homosexuals ought to be afforded the same rights to privacy, family, adoption, and so on, as heterosexuals. 12 Such would forward the "great work of collective democratic decency that is the Constitution of the United States. " 13 The logic of right to privacy leads to decriminalization of all consensual sex acts including prostitution, as well as drug use, and euthanasia. Richards arrives at his justifications for judicial review, privacy, and his policy proposals by way of an intricate argument concerning interpretation of law and the foundations of political order: ''The first traditional question of constitutional theory uudicial review] will, in my account, be answered last." 14 The prior questions to be explored deal with interpretation of law, the U.S. Constitution in particular, and the foundations of political order, and American federalism in particular. At the core of law, constitution, and political order, Rich­ ards elaborates a doctrine of personhood derived from Kant. With the contractarian philosophy of Kant and John Rawls, Richards aims to "bring to critical self-consciousness the humane legal developments" of recent note. 1 5

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This philosophical approach is superior to the other modem ac­ counts of political order. The modem alternatives to Kantian liberalism are utilitarianism and majoritarianism; they are variations of the same theme. Utilitarianism does represent an advance over the premodem tradition ; indeed, Richards acknowledges that the great founder of liberalism, John Locke, advanced a view that actually mixed in both rights doctrines and a form of rule utilitarianism. The advance lies in its abandonment of hierarchical conceptions of the world and human life and its first grasp of a doctrine of equality. In addition, the nonharm principle, even advanced on utilitarian grounds, signified an appreciation of a theory of general goods and an attempt to limit the power of the state over individual liberty. The doctrine of utilitarianism is flawed because it misconstrues the nature of equality and the harm principle ; and it is ultimately corrupted by the pursuit of aggregate interests, which leads to grounds for violation of rights. The advances of utilitarianism have to be secured by placing them on the more true and firm footing of personal autonomy. Personal autonomy yields a true idea of equality and an intelligible and consistent reading of the nonharm principle. In addition it provides the essential constraints on aggregate interest violating personal rights and producing unjust outcomes in distribution of harms and benefits. 1 6 Majoritarianism is more of a problem because it contains the seeds of the older premodem morality, the morality of the tribe. The norm of majority consensus provides an alternative to liberalism. But it is the demonic force of faction against which Madisonian political science must provide the corrective. As mentioned above, judicial review, a device for liberal constitutionalism, is antimajoritarian. Richards sees majorities as frequently evil and incapable of judgment about the good of the whole. The theory and practice of liberal constitutionalism are clearly superior to the alternatives, ancient and modem, in the eyes of Rich­ ards. What is the foundation for his view and what are its implications? The Foundation of Liberalism The Core Idea Richards labels his position "liberal constitutionalism": the "cumu­ lative weight of the argument of this book is that the rights characteris­ tic of liberal constitutionalism converge in a certain way on a distinc-

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tive moral conception of thought, speech, and action." 17 Thus his position is best understood as containing two major elements: first, an elaboration and application of characteristic human rights, viz . , free­ dom of conscience, freedom of speech, freedom of sexual expression, which he approaches through American constitutional law; second, a distinctive moral conception, viz. , equal respect for persons, which he derives ultimately from Kantian ethics. That is, he construes "equal respect for persons" in terms of autonomy; the general right of personal autonomy is said to be "the fundamental value of liber­ alism. " 18 Richards adopts a Lockean view, as he claims the founders do, on the legitimate scope of governmental interference with these human rights based upon the autonomy of persons. The only grounds for interference are the protection of ''general goods'' such as life, liberty, health, and property. Then, following the Rawlsian conception of social contract, he describes the general goods as those goods ''that rational and reasonable people would want protected as conditions of whatever else they want. "1 9 Autonomy and general goods yield the notion of a neutral government; it cannot impose a substantive way of life upon the citizens nor act in behalf of such a vision; the government must be properly "neutral among diverse ways people may interpre­ tively weight the pursuit of those goods in their vision of a good and decent life. "20 Autonomy is precisely the ability to form a plan of life; for the government to act on behalf of a distinctive conception of the good life would be to violate the equal respect for persons, many of whom choose diverse ways of life. In one article Richards draws upon Ronald Dworkin to summarize the core idea of liberalism: Fundamental political morality rests upon a neutral theory of the good for persons, which is compatible with broadly pluralistic life styles and forms, and the most fundamental right of persons is their right to equal concern and respect, compatible with a like respect for all, in defining their own visions of the good life.2 1

We need now to probe more deeply into this core statement of prin­ ciple. The Concept of Person According to Richards, a theory of the person is both "empirical and normative," describing capacities and characterizing ideals and

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principles; the capacity is freedom, the principles are "rationality and reasonableness. " 22 Richards follows Kant and Rawls in describing the person in terms of a capacity for critical reflection that allows freedom; that is, he distinguishes first-order and second-order desires. The first­ order desires are hunger, thirst, sexuality, desire for friendship, and the like; the higher, or second-order desires enable a person to self­ critically evaluate the first-order desires and thereby shape, plan, and adjust a way of life. 23 Each person has a capacity "to self-critically evaluate and give order and personal integrity to one's system of ends in the form of one's life. " 24 The formulation in Toleration and the Constitution states the definition of freedom as follows: "the capacity of persons to formulate and act on higher order plans of action, which take as their self-critical object one's life and the way it is lived, changing or not changing one's life, as the case may be. " 25 It is interesting to note that substantive goods are all equalized as first­ order goods; for example, friendship is placed with hunger. Indeed, Richards claims that the neutrality of the liberal ideal stems from the Kantian triumph of autonomy over desire. 26 Autonomy defines the person, and respect for such autonomous persons is the foundation of liberalism. The implications of autonomy are that persons are independent from domination by others, indepen­ dent of first-order desires, and most of all, free to choose a plan of life such that the highest creative task is that of shaping one's own life as an individual free from custom and convention. 27 The person must be seen as an "originator of claims," 28 and must be seen as having the capacity to make judgments and thus to act. This leads to the principles that characterize the exercise of the capacity of higher order reflection, namely, rationality and reasonable­ ness. Rationality includes both practical and theoretical reason; the former Richards defines as prudence, aiming at realizing the good, the latter as epistemic rationality, aiming at true belief. Reasonableness is a moral capacity to consider the claims of others in terms of equal respect for persons. The principle of reasonableness often constrains that of prudential rationality. Autonomy as a moral ideal includes absence of constraint, rationality, and reasonableness. The Derivation of Rights Right of conscience The doctrine of human rights is derived from this definition of autonomous persons: "We may interpret equal respect for persons in

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terms of the principles that could be justified to every person under­ stood as capable of rational and reasonable freedom. " 29 Rights thereby secure "the essential distributive conditions of the self-respecting integrity of each and every person." Rights are the legal protection of the autonomy of persons, especially in the capacity for self-critical reflection and choice. 3° Freedom of conscience becomes the first and paradigm right because it protects the capacity for rational freedom itself; all other rights are "generalizations or elaborations" of this focal argument. Richards goes through an extended historical account of religious freedom and the right to conscience. Augustine and Thomas Aquinas are criticized for their views on religious freedom. Although Augustine is said to have had a praiseworthy conception of the autonomous person, he failed to draw the inferences from this conception of the person. His view of religious freedom was based on a contempt for the freedom and rationality of persons; Richards claims that Augustine's suppression of the Donatists was motivated by an imputation of demonic and moral failure to those with views different from his. This is the classic mistake of bigots; the doctrine of persons and equal respect for persons overcomes this error. It took the controversy of Reformation to break open this truth. The disputes over Biblical interpretation and the advance of literacy gave everyone an equal place in interpretation. Persons are now seen as originators of claims; respect for "integrity of interpretive conscience" and minimal condi­ tions for epistemic rationality becomes the order of the day. 3 1 According to Richards, John Locke and Pierre Bayle came to formu­ late the essential principle, basing toleration upon a moral interpreta­ tion of respect for personal integrity; their only mistake was a failure to extend the toleration to a universal scope. They mistakenly believed that the state required religion as a proxy for moral education and moral integrity ; ethical independence, the Kantian ideal, is now clearly understood as an achievement independent of religion. Thomas Jefferson and James Madison came to see this full true view of religious toleration based upon the autonomy of the person. Equal respect for persons is the organizing principle of the First Amendment. Freedom and rationality, Richards claims, are the "background rights" in light of which we must construe the First Amendment. Richards thus construes the First Amendment as an attempt to "guarantee and secure to a person the greatest equal respect for the rational and reasonable capacities of the persons themselves to originate, exercise and express and change theories of life and how to

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live it well. " 32 The state must make sure that It does not infringe upon the formation of belief, the expression of belief, and the revision of belief. Richards construes the free exercise clause to be aimed at the right to express a current belief and the antiestablishment clause to protect the right of freedom in the formation and revision of conscien­ tious beliefs. The deepest value protected therefore is not religion per se, but the higher powers of the person, the capacity for critical reflection as in a rational and reasonable person. The state should not attempt to construe this in terms of the content or definition of religion. Rather it should be construed as protecting any conscientious belief and the action that derives from it, if the action does not harm the equal rights of others or some compelling state interest that involves the general or basic goods. Thus the right of conscience exercises a "gravitational pull" on the First Amendment such that the original meaning may be transformed. Richards believes that his account of the First Amendment clarifies the essential correctness of decisions concerning released time to teach religion, school prayer, teaching Darwinism versus creationism, aid to private schools and the like; and he chastises the Supreme Court for restricting the scope of actions protected by the free exercise clause when it attempts to define religion in institutional terms and for permitting tax exemptions for churches because this amounts to "multiple establishment. " 33 The right of conscience is the primary right and the paradigm for all others; expanded to include any conscientious belief or actions derived therefrom, so too other rights are similarly expanded and developed in light of the principle of autonomy and respect for persons. The scheme is applied to free speech, with some interesting results such as the defense of a right to pornography; indeed pornography is extolled as the higher option against the repressed Roman Catholic and puritan public morality. 34

Constitutional Right of Privacy The very legitimacy of the right to privacy or the range of the right has been challenged by several thinkers and Richards seeks to refute them. Richards sees a clear line from Griswold on contraception through other cases involving nonmarital sex and abortion rights extending to the eventual liberation of homosexuals and prostitutes. He rejects the attempts to explain decriminalization on the grounds of a changing moral consensus or the utilitarian principle of nonharrn. The former attempt to explain Griswold or other forms of decriminal-

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ization begs the question because there must be an appeal to a critical standard outside of convention itself; moreover, an appeal to the moral consensus misconstrues the role of the judiciary as a counter­ majoritarian institution, which is debased if it simply tracks a moral majority. The harm principle represents an advance because it clearly lays out restrictive conditions for state interference.35 But an efficien­ cy-based argument is not sufficient; it may concede the immorality of the action, or it may have to act consistently on utilitarian grounds if there is sufficient offense to a sizable majority. Thus the nonharm principle must be based on the right of personal freedom or personal autonomy. Privacy interests are connected to the higher order interest of personal autonomy. Richards claims that the resources for higher order choice include "capacities for thought, emotion and action as integral to the self-image of a person exercising moral independence in the formation of intimate relationships." 36 The state may not intrude into this domain of intimate personal relationships because it is con­ nected to "moral independence." The state may only intrude to protect general goods, and it cannot impose the standards of one group or sect. The general goods, as explained above, allow diverse visions of decent and good life. The right to privacy therefore runs parallel to the right to conscience ; it must include belief and action; and the state must be neutral to the various conceptions of the good life and avoid the imposition of sectarian points of view. To deny the legitimacy of the right to privacy concerning intimate relations debases the "essential moral powers of a just personal life." According to Richards the jurisprudence of privacy confirms this construal on the basis of personal autonomy. If the Griswold case acknowledges the unenumerated right of marriage, it is because the abstract background right concerns intimate personal relationships, "through which we express and realize a wholeness of emotion, intellect and self-image guided by the just play of the self-determining powers of a free person.''37 Thus for good reason is the right to privacy extended to nonmarital relationships, the use of pornography, and abortion services. Richards believes that the Griswold case exposes the groundlessness of the religious (especially Roman Catholic) objec­ tions to contraception,38 highlights the great good of sex as an end in itself, and enhances the rational dignity of women who are freed from prejudice and traditional duties of the procreative function. So too abortion, pornography, and homosexual acts are liberated from false moral condemnation and individuals are freed from the oppressive

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weight of tradition and convention. The mo'ral powers of the person are thereby protected and nourished. Richards concedes that abortion may be the harder case because there is an apparent harm involved; but on examination he defends the abortion cases; restrictive abortion laws infringe upon "essential moral powers in the service of non-neutral values." He argues that a case cannot be made for the full "moral" personhood of the fetus-it lacks self-conscious agency. It is a potential person, he asserts; only religious premises bestow actual personhood on it. He rejects the slippery slope argument back to conception and declares that such a capacity clearly arises late in pregnancy. The real issue for Richards, if we may judge by the degree of passion and evidence invoked, is the larger cultural war over gender roles: abortion is a proxy for other issues, and a "controversial powerful sectarian ideology about proper sexuality and gender roles" is being foisted upon society at large. It is a vision that degrades women. Thus the abortion decision is ''clearly a just application of the constitutional right to privacy, because the right to abortion choice protects women from the traditional degradation of their moral powers, reflected in the assumptions underlying the antiabortion laws. " 39 Richards seems to imply that the greater moral vision has prevailed in Roe v. Wade. But no, he insists that the theory of general goods keeps the state at a neutral point. The state should remain neutral and thus allow freedom of choice; antiabortion activists may try to persuade others that their vision is more beautiful, good, or true, but they may not use the power of the state to enforce it. A similar approach is used to explain the right of privacy and homosexual activity. Richards refutes the moral arguments, in this case citing novel interpretations of the Bible, but also attacking the procreative model of sex. He connects intimate association with the just moral powers of forming a higher order plan of life. The laws against homosexuality are brutal and callous, he declares; they consti­ tute a functional equivalence of heresy prosecution. This is a serious remark. Right to intimate association is an elaboration of the right to free exercise of religion construed as a protection of conscientious belief and action that follows from it. So too, the state endorsement of heterosexual relations through law and tax breaks is a functional equivalent of state establishment of religion. The courts must go much further in the legal protection and recognition of homosexual ways of life. The paradigm right of conscience may finally be traced through the

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jurisprudence of equal protection and suspect classifications. It is a substantive right protecting equality of moral powers. In Toleration and the Constitution, Richards makes a few suggestive remarks about fighting stereotypes and extending equal protection to poor people, women et al.; in Foundations of American Constitutionalism, he follows this through. Indeed, for Richards the claims of feminists, homosexuals, and other minorities are the vanguard for restoring the United States to its "community of principle"-they reveal the true moral gravity of American Constitutionalism, i.e., respect for personal autonomy and the freedom to choose one's way of life. The marginal­ ized groups in American society will lead the country to its promised land of equal respect for persons: The deepest level of American consensus is about the Constitution. All Americans have a place in that enterprise , because it supplies the grounds of the principle that dignify the lives of outcasts (for example, blacks or women or homosexuals) from m aj ority factions in terms of respect for the rights and common interests of all persons. 40

America's moral community is a "community of principle." Accord­ ingly he says "our bonds of community are neither ethnic nor racial nor sexual nor familial nor religious nor any other of the 'natural' groups around which most polities organize their identities, but a new vision of republican political community the morality of which is democratic reason. " 4 1 The work of democratic reason is a function of the judiciary and is embodied in the institutions of liberal constitution­ alism.

Institutional Features of Such Rights The institutional arrangements of the American constitution are likewise construed in light of the Kantian principle of equal respect for persons: the "institutions of democratic self-rule" are an attempt to realize a stable justice; and justice aims "to protect an idealized moral conception of persons as free, rational, and equal," as Rawls has rightly outlined.42 Judicial review, for example, is a necessity because such a public philosophy requires discipline and independence; only a judiciary branch free from majoritarian pressures could maintain the critical independence.43 The court thus must "vindicate best arguments" of principle essential to our constitutional tradition. This is the work of democratic reason.

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So too, the separation of powers and the federal structure is an attempt to protect equal respect for persons by combatting faction and its "corruptive and demonic effect" whereby other persons are considered evil and less than persons. Madison's concern for faction was nothing less than a concern over the "Augustinian contempt for moral powers of those with whom one disagrees." 44 In addition, Madison construed "the people" not simply in terms of a majority, but in more fundamental terms of "the basic rights of the person which the contractarian state exists to defend." 45 Popular sovereignty means the sovereignty of the individual right of conscience.

Conclusion Richards's attempt to formulate a new liberalism is a formidable account that unfolds the logic of the core liberal idea of the autono­ mous person. Although many subscribe to the core idea, few would wish to trace it out as far as Richards has done. But his account and recommendations deserve the serious consideration of liberals and critics of liberalism alike. Richards in fact responds to several criti­ cisms of liberalism proffered by the "communitarians." Is the doctrine of neutrality such that liberalism cannot recommend or educate in positive moral ideals?46 Does liberalism alienate one from community and authentic life?47 Is liberalism antireligious? Does the Kantian ideal of the person downgrade love and personal relationships?48 Richards believes that liberalism can be defended against these charges. A critic of Richards' s account of liberalism should consider other questions of fundamental import as well. The foundational notion of person is invoked as a postulate. He admits that the notion is both empirical and normative. On both counts the theory of the person is open to challenge. For example, can the person be defined in terms of freedom alone and with a neutral account of the good life? John Finnis, Joseph Raz, Charles Taylor, Alasdair MacIntyre, and Michael Sandel, among others, have made serious arguments to the contrary. The doctrine of state neutrality combined with the aggressive pursuit of equal respect for persons also seems to indicate the problems with a form of liberalism based on neutrality with respect to the good. From a political perspective, a tension exists between the temper of Richards' s democratic optimism and the elitist account of judicial review ; this leads to a somewhat peculiar account of republican institutions, especially in relation to questions of federalism and fac-

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tion. It is not so clear that the founders of the American Constitution wished to push individual autonomy to the point of the destruction of traditional communities and majorities, nor is this clearly a politically good or humane outcome. His account of liberalism may ultimately be too rash in theory and in practice.

Notes I. David A. J. Richards, Toleration and the Constitution (New York: Oxford University Press, 1986); Sex, Drugs, Death and the Law (Totowa , N.J. : Rowman and Littlefield, 1982) ; Foundations of American Constitutional­ ism (New York: Oxford University Press, 1989) ; "Human Rights and Moral Ideals: An Essay on the Moral Theory of Liberalism, " Social Theory and Practice, 5 (1980):461-88; "Rights and Autonomy, " Ethics, 92 (1981):3-20. See also A Theory of Reasons for Action (Oxford: Clarendon Press, 1971) and The Moral Criticism of the Law (Encino, Calif.: Dickenson- Wadsworth, 1977); "Aims of Constitutional Theory," University Dayton Law Review , 8 (1983):723-744. 2. On Calvinism see Sex, Drugs, pp. 2, 14, 90, 126, 194 ; Foundations, pp. 25, 54 ; Toleration, pp. 235, 240. On Roman Catholicism see Sex, Drugs, p. 52; Foundations, p. 217; Toleration, pp. 207, 259-60, 277-78. 3. On the community of principle, see Foundations, pp. 295-99. On the degradation of traditional communities, see Foundations, p. 277. "The detailed casuistry of one's personal life, typical of older moral traditions, imposes unreal and factitious constraints which deny and disfigure the moral freedom that we, as persons, possess. To deny such freedom is to impose a false passivity and resignation, a slavery of the spirit which is neither natural nor humane." "Human Rights and Moral Ideals, " pp. 485-86. 4. Sex, Drugs, p. 1; "Rights and Autonomy, " p. 3. 5. Toleration, p. 62. Cf. Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge, Mass.: Harvard University Press, 1989). 6. Toleration, p. 72. 7. Perhaps there are some false dilemmas or disjunctions in the citation from the text here, such as sole definition, irrespective of capacities, etc. Moreover, that premodems imposed a chain of being prior to empirical investigation is simply not true ; for Aristotle, for example, it was a deduction from observations of nature. In fact Richards allows Locke to adopt the supposition of a great chain of being after empirical investigation. 8. Toleration, pp. 81-82. 9. See also Foundations, pp. 276-77. 10. "Plato and Aristotle were not liberals or democrats in our sense, and an exploration of how the founders critically appreciated this fact might debunk

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the kind of fashionable appeal these thinkers enjoy in general and in constitu­ tional theory. " Foundations, p. 296. 1 1 . Sex, Drugs, p. 63. "Certain of the traditional moral condemnations of homosexuals, appear, on analysis , to be vicious forms of social and legal persecution. " "Human Rights and Moral Ideals ," p. 479. 12. See Foundations, pp . 246-47. 13. Foundations , pp. 246-47. 14. Toleration, p. 64. 15. Sex, Drugs, p. 5. 16. Toleration, pp. 69-7 1 , 237-42; "Rights and Autonomy , " pp. 5 , 17-19; Sex, Drugs, pp. 9-10. 17. Toleration, p. 68. 18. Sex, Drugs, pp. 8, 19. 19. Toleration, p. 245 . See Sex, Drugs, pp. 12-13. 20. Toleration, p. 246. 2 1 . "Human Rights and Moral Ideals," p. 46 1 . 22. Toleration, pp. 7 1-85 ; see Theory of Reasons, passim. 23. "Human Rights and Moral Ideals," p. 466. 24. Sex, Drugs, p. 10. 25. Toleration, pp. 7 1-72. 26. Sex, Drugs, p. 9; "Human Rights and Moral Ideals , " p. 467. 27. "Human Rights and Moral Ideals," pp. 465-66. 28. Toleration, p. 72. 29. Toleration, p. 84; see "Human Rights and Moral Ideals , " pp. 467-68: "The idea of human rights is a corollary of the Kantian interpretation of treating persons as equals in virtue of their autonomy. " 30. Thus Richards summarizes the doctrine a s follows: In view of the fundamental importance to liberalism of the autonomy based interpretation of treating persons as equals, the content of these constitutional rights clusters around the idea of respect for the indepen­ dent and self-critical mind (freedom of expression ; religious tolerance) which takes responsibility for directing its common life with others (political rights) and its personal life on its own (autonomy rights) and is guaranteed the greatest extensive liberty , compatible with a like liberty for all, in understanding both the law and its reasons so as to plan one's life accordingly (due process; and so forth). "Human Rights and Moral Ideals," p. 470. 3 1 . Toleration, pp. 26-27, 88-89. 32. Toleration, p. 1 36. 33. Toleration, pp. 170, 160. 34. Toleration, pp. 206-10. 35. The conditions are as follows : (I) there must exist concrete harms to assignable persons ; (2) the state cannot interfere on paternalistic grounds to protect the agent for his own good ; (3) the state cannot interfere simply

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because the mere thought of the act offends someone. Toleration, pp. 237-42 . See Sex, Drugs, pp. 3, 7. 36. Toleration, p. 243 . 37. Toleration, pp. 255-58. 38. Richards rehearses a very limited type of argumentation made against contraception; the sustained arguments of G .E. Anscombe, John Finnis, Germain G risez, or Karol Wojtyla are not considered. 39. Toleration, p. 268 . These assumptions pertain to gender hierarchy and biologically imposed roles on women. 40. Foundations, p. 299. 41. Ibid. 42. Toleration, p. 4 1 . 43 . Toleration, pp. 290-92 ; Foundations , p. 292 : the judiciary protects against the ' 'self-blinding views of majority faction. ' ' 44. Toleration, p. 300. 45. Ibid. 46. "Human Rights and Moral Ideals. " 47. Toleration, pp. 82-83. 48 . "Rights and Autonomy, " pp. 15-16.

Chapter 4

Robert Nozick and the Foundations of Political Individualism

R. George Wright Robert Nozick's Anarchy, State, and Utopia, 1 published in 1974, stands as the most philosophically sophisticated defense in many years of the minimal or "night watchman" state. Reaction to many of the book's most important substantive theses, however, has deservedly been generally critical. 2 Nozick himself has recently retreated from some of the book's principal conclusions.3 There remain, however, two reasons to take Nozick's early, and still much better known, views seriously. First is the profit to be derived from engaging with Nozick's formidable intellectual and forensic abili­ ties. Second, and not unrelatedly, certain deficiencies in Nozick's early work exemplify clearly, in hypertrophied form, maladies that afflict a broad range of contemporary political thought. In particular, it is vitally important to notice what Anarchy, State, and Utopia takes largely for granted, or at least does not, for whatever reason, attempt to justify at any length. Nozick begins with the controversial premise that individuals have a generally, if not abso­ lutely,4 inviolable moral right to be free, in their person and property, from theft, force, fraud and, on some understandings of the term, from coercion,5 and that individuals have no other general moral rights. From this and other premises, Nozick infers the initial legitimacy of an individualistic, reasonably benign anarchistic society that is legitimately superseded by a minimal state, as a perhaps unintended result of a series of morally unobjectionable transition stages. 6 It is this argument that is philosophically ambitious. Nozick then goes on to conclude that no state more elaborate, redistributionist, paternalistic, or welfare-oriented than the minimal state can be justified. This conclusion is of far greater practical import than any derivation of the minimal state. But Nozick's argument 59

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against a more-than-minimal state is quite limited. Nozick's rejection of any greater-than-minimal state proceeds largely through the uninter­ esting deployment of his controversial individual rights premiss formu­ lated above. From that premiss, there are only modest obstacles to Nozick's inference that, complications aside, no one may be deprived of any legitimately and harmlessly acquired property through fraud or force, including governmental force or taxation. This result obtains despite any competing moral claims of need, desert, equality, merit, virtue, utility, happiness, perfectionism, community or solidarity, or social progress. Each of the latter considerations is trumped by strong rights claims. Nozick's crucial conclusion, then, largely follows uninterestingly from his starting point. This state of affairs dramatically emphasizes the importance of Nozick's premises, and in particular his controver­ sial understanding of the existence, nature, and scope of moral rights. Of course, Nozick must start somewhere, or accept some most general moral belief.7 It would be unfair for any critic to press Nozick's argument back beyond a certain point. But the degree of explanation, elaboration, or accounting for a basic premiss-presumably, strict argument for a basic premiss would be self-contradictory-should be proportionate to the controversiality of that basic premiss, or of the conclusion derived therefrom, as well as to the "sensitivity" of the conclusion; that is, the likelihood that the conclusion will be altered significantly if the basic premiss is even slightly modified. At this crucial point, Nozick essentially admits that he presents no elaborated accounting for his view of individual moral rights. 8 In large measure, the reader is left to assess Nozick's premisses based on the degree of attractiveness of the conclusions to which the premisses lead. To many, Nozick's conclusions are unattractive indeed, as they conjure up the London of Charles Dickens or the Manchester of Karl Marx and Friedrich Engels. Nozick argues, however, that the minimal state is not merely coldly just, but genuinely inspiring. 9 At least in principle, Nozick argues, the minimal state allows for great diversity of practice and ethos among the many potentially viable voluntary associations constituting that society. Each group may, for itself, choose to live by stringently egalitarian, perfectionist, hedonistic, antimaterialist, aesthetic, bu­ colic, profoundly religious, ascetic, or intensely competitive lifestyles. Although no such lifestyle can be guaranteed to be practically avail­ able, this may be the price paid for the society's inherent dynamism. Of course, some sorts of universally applicable rules about the common

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inculcation of the basic structural libertarian principles governing the overall society would have to be worked out, along with rules govern­ ing exit from viable or defunct communities. Some sorts of communi­ ties, presumably including groups practicing massive wealth redistribu­ tion internally, or highly traditionalist groups, may not be viable beyond a certain scale unless exit is restricted or membership com­ pulsory. It is important to note that Nozick's view of the inspiring society­ let a hundred flowers bloom or wilt-is hardly idiosyncratic or distinc­ tively right-wing. Readers who are familiar, for example, with the work of Bruce Ackerman will detect in Nozick and Ackerman a common general, if not exceptionless, official indifference to personal concep­ tions of the nature of the good, or of the good life. More generally, there are important dimensions, such as the coherence and desirability of a more or less thorough public neutrality toward private conceptions of the good life, along which writers such as Ackerman, Charles Larmore, and many others are closer to Nozick than to, say, William Galston or Stephen Macedo. 10 Again, however, anyone seeking a deep justification of public indifference to private conceptions of the good must look elsewhere than to Nozick's book. As we have seen, Nozick can enhance the attractiveness of his basic premises by arguing that those premises lead to inspiring conclusions. It is also possible for Nozick to seek to strengthen the appeal of his premisses by arguing, for example, that those premisses take rights seriously, or that they enhance liberty or autonomy, or even that they bespeak a Kantian respect for persons. It is Nozick's view, for example, that at least short of a moral catastrophe, 1 1 rights must not be violated for the sake of some desired goal, such as happiness, and that they must not be violated even to maximize overall respect for rights in that society. We must not only not sacrifice a person's rights for the sake of a great utility windfall, we must not violate a right even to prevent a tyrant's violating the most basic rights of many other people. Again, however, whether we find this view attractive or not, it is hardly unique to Nozick or his ideological confreres. The rejection of an overall maximization of respect for rights is held as well by some, across the political spectrum, who hold little else in common with Nozick. 12 It might be argued, however, that although Nozick does not establish the pursuit of liberty, autonomy, or Kantian respect as explicit aims or premisses, his premisses incidentally generate principles or rules uniquely promotive of these laudable notions. Perhaps the central

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difficulty with this argument is that the concepts of liberty, autonomy, and Kantian respect are by now intractably ambiguous and equivocal, if not essentially contested. Let us grant for the moment that there is some sense of these terms in which the minimal state optimally promotes liberty, autonomy, and Kantian respect. It remains the case, however, that there are well-pedigreed, authentic, no less important senses of these same terms in which the minimal state leaves much to be desired. Liberty, for example, notoriously may mean the "negative" liberty, or absence of social restraint, emphasized by Thomas Hobbes, John Locke, and John Stuart Mill, as well as the "positive" liberty, or rational moral development, emphasized by Jean-Jacques Rousseau, Immanuel Kant, and Georg Wilhelm Freidrich Hegel. 1 3 Nozick is presumably less interested in the latter understanding of liberty than in the former. But it is impossible to account Nozick a champion of liberty simpliciter. More crucially, it has not been universally conceded that Nozick is an unequivocal champion of liberty even in its negative sense. One who, through the workings of inheritance laws, discrimination, the absence of public schooling, and the absence of a redistributive "safety net," is free to sleep under the bridges may be said not only to lack equality or high-valued liberty, but to simply have less liberty in the negative sense of the absence of societal constriction of the range of his or her practical choices. 14 Whether this diminution of the negative liberty of the poor, or of those subject to invidious discrimination by the majority, can somehow be morally justified, perhaps as the neces­ sary price for the liberty of the majority, is a separate issue. But in the meantime, we cannot simply assume that one who sleeps under the bridges is acting on the basis of negative political freedom. Nozick also argues that his premisses, and the minimal state, are particularly faithful to our sense of the separateness of persons, of the dignity of the individual, and to the Kantian injunction to always treat persons not merely as means, but also as ends in themselves. 1 5 Nozick effectively argues that our belief that we do not morally deserve the genetic equipment with which we are born does not, without more, imply that those with binocular vision must consider their second eye merely an element of a common resource pool of eyes to be available for mandatory reallocation to those less favored by nature. But not all redistribution of wealth is brutally intrusive . A govern­ ment might refuse to view each person as an island and insist upon a measure of wealth redistribution in appropriate cases, on the under-

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standing that personal identity is socially constituted, that fellow citizens are inherently related, and in some sense, responsible to and for one another. Certainly not all redistributive schemes need be paternalistic or degrading. They may, in the best cases, rescue the beneficiary from degradation and afford the beneficiary the material resources and opportunities necessary to actively infuse her life with meaning, with no corresponding loss of meaning on the part of her involuntary benefactors. 16 One must ask, ultimately, whether the typical market transaction, in which persons A and B exchange objects Y and Z because A values Z more than Y, and B values Y more than Z, tends to promote each person's concern for the other as a moral end, rather than as merely a means to enhanced welfare. More vividly, do market actors necessarily tend to treat one another as more than animated vending machines? Of course, the existence of a market does not preclude generosity, altru­ ism, or self-sacrifice. But the rise of the market does not usher in the Kingdom of Ends. The interesting cultural question is whether markets can be sustained in practice over the long term unless most persons adopt moral codes more demanding than the mere avoidance of force, fraud, and breach of contract. As well, some may, with Nozick, refuse to acknowledge an enforce­ able moral duty to perform virtually riskless, costless rescues of strangers. But it is hardly clear that this view, however central to Nozick's overall view, and however generally well entrenched in the law, unequivocally advances the idea of each person as possessed of a dignity beyond price, and as a moral end. 17 Thus there is no reason to suppose that the attractiveness of the notions of liberty, autonomy, or Kantian respect uniquely point in the direction of Nozick's otherwise largely unargued-for principles of individual rights, or that Nozick's view best balances these several values. We tum, then, to a brief sketch of Nozick's more richly developed argument for the morally legitimate derivation of the mini­ mal state from an initial condition of more or less benign individualist anarchy. Nozick's ingenious and richly detailed argument deriving a legiti­ mate minimal state assumes a preexisting condition of free individuals who may be passionate, selfish, or not fully impartial in defending their interests, but who are generally rational and well meaning. They are assumed to be persons who seek to improve their lot without intending to act immorally. 1 8 In seeking individually and contractually to protect their welfare, they may collectively "back in" to the minimal

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state without so intending. Thus the social evolutionary process gener­ ating the minimal state is neither an instance of might making right, nor of any sort of traditional Hobbesian or Lockean social contract. 1 9 No brief sketch of Nozick's derivation of the minimal state can do justice to its subtlety. Nevertheless, it may be said that the theory in some sense begins with the idea of individual self-help remedies for violations of the basic moral rights elaborated by Nozick and discussed above. The disadvantages of a scheme of purely individual prosecution of rights violations by the aggrieved party seem obvious enough. A second stage in the evolutionary process involves the victim's obtain­ ing the assistance of the victim's relatives, of friends, of those who may be grateful to the victim for some favor, of the public-spirited, and of the merely opportunistic. This stage, too, has its unnecessary individual and social costs, and at a third stage is supplemented by the development of voluntary contractual mutual protective associations. Such associations presum­ ably would tend over time to reflect the advantages of specialization and the division of labor. The associations tend over time to rely less on in-kind contributions of assistance by subscribers, and instead become more "commercial. " All may be better off, for example, if the infirm contribute capital, rather than physical protection iri kind. Commercial protection agencies also tend, at least among their own actual and potential clients, to be more dispassionate and disinterested than the immediate parties to any conflict. This tendency is assumed to reflect basic principles of human psychology. A fourth stage involves the tendency of competing mutual protective associations to merge, or at least loosely federate or cooperate. This tendency reflects obvious economies of scale, and perhaps a tendency in this particular kind of market toward natural monopoly. All else equal, we tend to prefer to be protected by an entity with greater, rather than lesser, resources at its command. Clearly, important gains are to be had from resolving conflicts between competing protective associations by contract or arbitration, rather than by battle. At this point, we may assume that there are several independent persons who have not joined the dominant protective association, or the dominant federation of protective associations. An independent is any person who seeks to retain the unconstrained right to mete out just punishment for violations of her substantive moral rights. But, crucially, the dominant protective agency may compare its own gener­ ally dispassionate approach to justice with the presumably greater unpredictability, bias, potential selfishness, or emotionalism of those

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who wish to enforce their rights unilaterally, and deem the latter prospect to constitute an unnecessary and excessive risk of injustice for its own clients. To preclude this unnecessary risk of biased enforce­ ment of rights claims against its clients, the dominant protective agency is led by market forces, client wishes, or a sense of obligation and fairness, to limit or control, if not prohibit, the exercise of private violence by independents against its clients. Nozick argues that although the dominant protective agency is entitled to so act to protect its clients against an unnecessarily large risk of unjust treatment, it nevertheless owes compensation in some form to those former independents whose right of unilateral enforce­ ment of their substantive moral rights has now been practically limited. Nozick concludes that the most natural, low-cost means of compensat­ ing former independents would be for the dominant protective associa­ tion to offer former independents subsidized protection against viola­ tions of their own substantive rights, or at least as against those violations committed by the dominant protective association's own clients. Such a subsidy is thus merely compensatory, by analogy to the just compensation paid by the government in cases of eminent domain or condemnation of property for public use, rather than truly redistributive. At this point, we thus have a dominant protective association assert­ ing, as against all persons within its territorial domain, a right to limit or control their use of violence, and assuming with respect to each person some obligation of protection. For most practical purposes, this set of circumstances may be called the minimal or night watchman state. Now, many readers will find individualistic state of nature theory to be incoherent or morally irrelevant. If we choose, however, to grant the meaningfulness of state of nature theory, and of Nozick' s assump­ tions as to motivation and behavior in the state of nature, does Nozick's account work well on its own terms? Nozick's account does have a certain robustness. Consider, for example, that the dominant protective agency provides a collective or public good, from the benefits of which it is not practical to exclude free riders. Any time the dominant protective agency incarcerates a dangerous person for attacking a client, nonclients are thereby inadvertently protected as well, whether they have paid for the protection or not. Protection is thus a positive extemality. But we have seen that the dominant protective agency overcomes the free

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rider problem by claiming a monopoly on the right to set standards for the use of force, and compensating nonjoiners in kind. It also might be supposed that, at an earlier stage, some persons will join one of the rudimentary protective associations with the intention of calling upon the association's membership for help if attacked, but of abandoning the protective association if some other member of the association needs help first, at least where such help could only be provided at substantial risk. 20 This sort of behavior might destabilize the rudimentary protective associations before they could develop or implement a division of labor. But there are several reasons to con­ clude that this problem would be of limited import. Abandoning the rudimentary protective association would presumably run counter to whatever sense of fairness Nozick builds into persons in the state of nature, and may well, at this early stage, involve abandoning one's relatives and friends. Some costs are unavoidably associated with unfairly abandoning any organization, including effects on one's repu­ tation for trustworthiness. As well, it is also possible that reneging on one's commitment to respond to aggression today may simply enhance the personal danger one faces from a strengthened aggressor to­ morrow. It might also be objected, though, that at a later stage in the process, a truly dominant protective agency might take advantage of its natural monopoly by unjustly exploiting its own clients. But, again, whatever sense of fairness Nozick builds into the relevant actors will inhibit this inclination. It is also useful to recall that the dominant protective association might well consist only of a loose confederation of a variety of groups with diverse histories, membership characteristics, sizes, interests, and priorities. There may be too much room for internal fracturing, dissent, and exit for an exploitive monopoly to be both widespread and stable over the long term. The less exploitive factions may be able to quickly recruit disgruntled clients of the more exploit­ ive factions. Thus on its own terms, there is a certain robustness to Nozick's argument. This does not mean, however, that Nozick's account of the rise of the minimal state is motivationally or morally unproblematic. For example, to be a minimal state, the dominant protective agency must in some sense be universal in its reach. But why is the dominant protective agency morally entitled to presume, apparently irrefutably, that an independent such as Mother Teresa poses a grave threat of irreparable or incompensable injury to its clients, in light of her presumed selfish bias and emotionalism in defending her rights, as to

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justify the agency in coercively limiting and controlling Mother Teresa in the defense of her rights? Must the dominant protective agency limit the enforcement rights of independents only on a costly, case-by­ case basis? Nor is it entirely clear, despite Nozick's recognition of the issue, why an independent is owed any compensation for the limitation of her defense rights. After all, what the dominant protective agency is depriving her of, presumably, is merely the opportunity to abuse the right of punishment irresponsibly, and not the right of fully legitimate punishment or self-defense itself. Note that in law, the government offers compensation in eminent domain cases, but not when it abates risks akin to a public nuisance. On the other hand, if compensation of independents is both required and sufficient to justify the restrictions imposed on independents, why is compensation in the precise form of subsidized protection morally adequate? Of course, unless the dominant protective association offers universal protection, it may not technically rise to the level of a minimal state. But this does not establish that offers of subsidized protection are fair compensation for the restrictions imposed by the dominant protective agency upon independents. Apart from Mother Teresa, many independents choose to be independents, presumably, because they highly value self-reliance, autonomy, and the opportunity to develop and exercise their powers of judgment. It is thus not obvious why a typical independent would see more value than disvalue in an offer of subsidized protection. A monumental problem of com­ mensurability seems to lurk in an offer of protection to the indepen­ dent-minded. How much subsidized protection, about which the inde­ pendent is at best ambivalent, suffices to make up for losses of the autonomy and self-reliance that the independent may value most highly?21 Nozick's assumption that groups will be less biased or unfair in imposing punishments than the aggrieved individuals will doubtless generally be sound, but there may be interesting exceptions. It is possible that the majority influence on a dominant protective associa­ tion may lead, for example, to a uniform, exceptionless association bias against racial minority defendants, or against those accused of aggression against racial majority group members, even in cases in which the actual individual victim of aggression is racially biased. In such cases, the accused would, all else being equal, be more likely to receive justice through more personal rights enforcement by the victim or those immediately controlled by her than at the hands of the

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dominant protective agency. Of course, Nozick may rule racial bias out of his scheme by assumption, but he does rely on the idea of different degrees of general bias or partiality. Nozick is, finally, keenly aware that it is not clear precisely what his ingenious, detailed exposition of the transition from individualistic anarchy to the minimal state is supposed to accomplish. As Nozick recognizes, it is difficult to legitimize any actual minimal state, if that is Nozick's purpose, based on a succession of morally legitimate, but hypothetical, events. It hardly legitimizes the theft of a wallet at gunpoint that under other circumstances, the victim might have freely given to the thief. 22 Nozick recognizes that even in a minimal state, there should be enforceable limits upon the acquisition and transfer of property beyond the mere prohibition of force and fraud. Building upon the work of John Locke, Nozick concludes that it may be unjust for anyone to seek to acquire an exclusive property right in such circumstances as to leave another person in a relevantly worse position than that other person was in before the property was claimed, or than that person would have occupied in some appropriately described state of nature. Nozick concludes from this rather hazy proviso that, for example, claiming and fencing off the sole source of water for hundreds of miles may be morally illegitimate. In contrast, winding up with the only source of water because of one's inventiveness or foresight in develop­ ing and preserving that source may vest one with enforceable property rights. Extracting whatever price one can for such water from the desperately thirsty may well amount to an enforceable transaction. Another potential constraint on the use and transfer of property in the minimal state is, Nozick argues, the possibility of legitimate claims for rectification, or reparations, for injuries to oneself or one's ances­ tors in the form of dispossession, enslavement, or other historical exercise of force or fraud. It is hardly clear, for example, that some moral statute of limitations has expired regarding claims for compensa­ tion from the identifiable descendants of Native Americans or enslaved persons, or that any credit for public benefits supererogatorily con­ ferred distinctively on such persons has wiped out all moral debts incurred. Nozick raises and discusses such matters in a nuanced way, but obviously cannot treat all of the interesting issues raised in the available space. A third possible constraint on the use and transfer of property in the minimal state might be thought to involve unintended aggregate effects of numerous uncoordinated individual decisions. Nozick in effect

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denies the legitimacy of any such constraint in his famous "Wilt Chamberlain" example, in which a famous basketball player is able, in by now strikingly outdated terms, to agree to a contract worth $250,000 per year, based essentially on the willingness of many spectators individually to pay to watch him play.23 The primary problem with this example is not its atypicality, or even its taking the justness of the preexisting distribution of wealth for granted. Instead, the Wilt Chamberlain example does not adequately refute the claim that our individual preferences concerning aggregate or macro-level effects of many individual choices, or patterns, may be as legitimate and as morally important as our preferences concerning our own individual contributions to an overall distribution of income and wealth. Let us consider another, equally benign example. I may choose to allocate all of my charitable contributions this year to a particularly worthy charity, such as the March of Dimes, or Amnesty International. But I could quite consistently view it as a pragmatic, if not a moral, disaster if, unexpectedly, nearly everyone chose to follow my lead and contribute only to my own chosen charity. That I would be dismayed by this aggregate outcome hardly shows that my original choice was somehow morally defective. Similarly, I may be willing to pay a particular price to watch a basketball player, or compensate a corporate chief executive officer, while consistently believing that regardless of the player's popularity in the market, total overall pay­ ments to such persons should somehow be limited, or at least that their income should be taxed for redistributive purposes. Each individ­ ual patron may reason in parallel. There is of course much more to say about Nozick's Anarchy, State, and Utopia. There is much that is provocative in the work. Perhaps the most serious criticism that can be leveled is that in building an exceedingly top-heavy structure of strong rights claims on extremely sketchily defended premisses, Nozick mirrors and in some measure abets an unfortunate contemporary trend toward basing stringent, if selective, moral or political platforms on remarkably attenuated and ultimately inadequate normative or metaethical premisses. This trend contributes to the sense that much contemporary moral debate has a vaguely emotivist, pathologically interminable character. If we cannot offer a sound, convincing account of why our society ought to adopt one set of principles rather than another, whether libertarian or not, we should not be surprised if society's adherence to any set of principles proves unstable. 24

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Notes l . Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974). 2. See, for example, the essays by Thomas Nagel, Onora O' Neill, Cheyney Ryan, T. M . Scanlon, Peter Singer, Hillel Steiner, and Bernard W illiams in Reading Nozick, Jeffrey Paul (ed.) (Totowa, N.J. : Rowman & Littlefield, 1982). Among the vast relevant literature, particularly notable is a recent full-length treatment, Jonathan Wolff, Robert Nozick: Property, Justice and the Minimal State (Stanford: Stanford University Press, 1991). See also Ian Shapiro, The Evolution of Rights in Liberal Theory (Cambridge: Cambridge University Press, 1986) ; Michael A . Lamson (ed.) "Robert Nozick's Anarchy, State, and Utopia, " Arizana Law Review 19 (1977) :2-283 ; Symposium, Ethics 87 (1977):97-152; Ronald Dworkin, " W hat Is Equality? Part 2: Equality of Resources," Philosophy & Public Affairs 10 (1981):283, 336-38, 345 ; Virginia Held, "John Locke on Robert Nozick," Social Research 43 (1976): 169-95. The present author briefly reacted to Nozick's work in R. George Wright, "The Paradox of External Criticism, " Western Political Quarterly 29 (1976): 193-94. 3. Nozick recognizes the absence of any sort of "foundational" argument for his theory of rights in a later work, Robert Nozick, Philosophical Explana­ tions (Cambridge, Mass. : Harvard University Press, 1981), pp. 498-99 n. *, but he does not therein remedy the deficiency. In his more recent book, The Examined Life: Philosophical Meditations (New York: Touchstone: 1989), Nozick repudiates to an indeterminate extent the atomistic property rights­ based libertarianism of Anarchy, State, and Utopia . He now countenances a broader scope for legitimate governmental activity and commends in particular both symbolic and substantive governmental activity recognizing the central importance of human solidarity, of the inescapability of social relatedness, of the imperative of broadly nondiscriminatory behavior, and of the shifting mix or balance of a range of partially competing joint or common goals. See Robert Nozick, The Examined Life, pp. 286-96. Nozick recognizes that this range of governmental action may involve the coercion or cooptation of some dissenting citizens. But he notes that an official expression of principle or of concern by a society, as an authoritative public act, transcends and cannot be engaged in or adequately substituted for by even a large and wealthy group of private individuals. See The Examined Life, 288-89. This is more a matter of the qualitatively different meaning of an official public act, than of the relative efficacy of public versus private action. Nozick in Anarchy, State, and Utopia might well have been inclined to deny government the authority to "speak" or act where it can do so only through coercing or misrepresenting the views of some of its citizens. But for the later Nozick, whatever our government does, or consciously or uncon­ sciously fails to do, is a potential source of great pride or great shame for us all. Each of us tends, rightly and inevitably, to identify with our society, and

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we tend to identify, negatively or positively, with our collective, public acts, including our public silences. To ask substantial majorities to refrain from public expression of solidaristic values because such values, or particular conceptions of them, are not universally shared is on Nozick's more recent view to ask too much. Rather than see our collective life reduced to vast, sporadically interrupted expanses of public silence, where such silences cannot really be neutral in their meaning and effect, including their effect on our self-conception or personal identity, Nozick now instead seeks some mechanism, based in the tax system, for allowing for, without encouraging, a range of genuinely conscientious "opting out" by persons who wish to dissociate themselves from any particular public "message. " Nozick's discussion is, at this point, suggestive rather than thorough. He does not, for example, address the obvious trade-off problem: the greater the scope of "opt out" rights actually exercised, the greater the demonstrated falsity of any government claim to speak in the name of the whole. I shall have no more to say about Nozick's recent views in this chapter. Although they are no doubt substantively much more palatable to most of us, they are neither distinctive in themselves nor argued for strikingly or at any length. To this point, ironically, it is only Nozick's prior, generally less attractive, views that have been worked out with energy, acuity, and imagination. 4. Nozick considers, and at least does not dismiss, the possibility of a "moral catastrophe" avoidance limitation on the assertion of moral rights in Anarchy, State, and Utopia , pp. 29-30 n . * . See also Judith Jarvis Thomson, Rights, Restitution, & Risk W illiam Parent (ed.) (Cambridge, Mass . : Harvard University Press, 1986), p. 56. 5. For Nozick's controversially narrow understanding of the concept of coercion, see Robert Nozick, " Coercion," in Philosophy, Science, and Method, S. Morgenbesser, P. Suppes, and M. W hite (eds.) (New York: St. Martin's Press, 1969), pp. 440-72, reprinted in Philosophy, Politics and Soci­ ety, P. Laslett, W. G . Runciman, and Q. Skinner (eds.) (New York: Barnes and Noble, 1972), pp. 101-35. 6. On Nozick's account, it is not entirely clear whether the transition from anarchy to the minimal state is morally obligatory (see Anarchy , pp. 52, 232) or practically inevitable (see p. 5), or both. 7. Our discussion of Nozick will seek to remain neutral as between what has been called ethical foundationalism and ethical coherentism. For discus­ sion, see, for example, Robert Audi, "Axiological Foundationalism, " Cana­ dian Journal of Philosophy 12 (1982): 163-83 ; Norman Daniels, "Reflective Equilibrium and Archimedean Points, " Canadian Journal of Philosophy 10 (1980):83-103 ; R. George Wright, "Two Models of Constitutional Adjudica­ tion," American University Law Review 40 (1991): 1357-88. 8. Anarchy , p. 150. 9. Anarchy , p. 310.

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10. Compare mutually Bruce Ackerman, Social Justice in the Liberal State (New Haven: Yale University Press , 1 980) ; Charles Larmore, "Political Liber­ alism," Political Theory 18 ( 1 990) :339-60 ; William Galston , Liberal Purposes (Cambridge: Cambridge University Press, 199 1 ) ; Stephen Macedo, Liberal Virtues (Oxford: Oxford University Press, 1990) . 1 1 . Anarchy, p. 30. 12. While they do not argue in terms of rights or rights-violation, it is not unreasonable to cite here John Finnis , Joseph Boyle , and Germain Grisez, Nuclear Deterrence, Morality and Realism (Oxford : Clarendon Press, 1 987) ("The norm . . . which forbids hanging one innocent person to satisfy a mob and protect any number of others is an absolute . . . . " p. 293). 13. For background, see Isaiah Berlin, "Two Concepts of Liberty ," in Four Essays on Liberty (London : Oxford University Press, 1969) , pp . 1 18-72. A parallel discussion of the equivocal meaning of "autonomy" could also be readily developed. 14. For some doubts as to whether capitalism unequivocally maximizes the negative liberty of all those involved, see C. B. Macpherson , "Elegant Tombstones : A Note on Friedman 's Freedom ," in Democratic Theory: Essays in Retrieval (Oxford : Oxford University Press, 1973), pp. 143-56. 15. Anarchy, p. 3 1 . 16. For discussion, see Joseph Raz , The Morality of Freedom (Oxford: Oxford University Press, 1 986), pp . 273-74. 17. For Nozick' s understanding of the scope of the right to life , see Anarchy, State and Utopia , p. 179. Again, this is not to suggest that Nozick rules out voluntary acts of individual or collective charity, or that he would not generally welcome the development of voluntary insurance markets to protect against all sorts of contingencies . 18. For a n example of a less discretely atomistic approach t o human nature, see Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1 982), pp. 79-82. 19. Anarchy, pp. 1 32-33. 20. Anarchy, pp. 1 1 3 . 2 1 . I t i s possible that the dominant protective agency may want to issue clean bills of health to any local Mother Teresas, in the sense of disclaiming any current wish to impose substantive restrictions on their self-defense rights , contingent upon their providing continuing evidence of fitness for this distinction. But does imposing this condition itself require payment of any compensation? 22. Anarchy, pp. 1 5 1-52. 23. Anarchy, p. 1 6 1 . 24. To Nozick's credit, though, i s his celebrated discussion (see Anarchy pp. 42-45) of our presumed disinclination to turn our lives over to what he imaginatively characterizes as an "experience machine , " a "transformation machine , " or a "result machine . " It is worth asking contemporary pragma-

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tists , and at least some of those who would adopt a thorough-going public indifference to the choice of private good , what would , over the long term, substantially discourage future generations from plugging into such machines on a permanent basis.

Chapter 5 Beyond the Procedural Republic: The Communitarian Liberalism of Michael Sandel

Terry Hall That this volume of essays on contemporary liberalism should begin with a discussion of John Rawls is surely appropriate. For the better part of two decades his work has not only provided a touchstone for discussions in Anglo-American political theory; it has also furnished, for many at least, a persuasive vision of liberalism. Rawls has given us a compelling way of understanding our own political arrangements. In an era in which the recognition of pluralism and equality is taken to be de rigueur for political theorizing, the Rawlsian commitment to justice as adherence to a fair and impartial framework is seen as especially welcome. To be sure, Rawls's liberalism is not the only strain at work in the contemporary mind. Other theorists, such as Ronald Dworkin, stress the notion of rights as "trumps" individuals have against state power. Still others, notably Robert Nozick, defend market mechanisms and property rights against encroachment by the state. But whether we wish to focus on egalitarian, rights-based, or libertarian liberalism, we should be mindful that many of the strands of contemporary liberalism come together around a central idea: the notion of the autonomous individual, who chooses his own good, his own "life plan." In recent years, these versions of liberal political theory have begun to attract sustained criticism. One of the most interesting and sophisti­ cated challenges comes from Michael Sandel, who argues that the dominant expressions of liberalism fail to appreciate the extent to which human beings are ineluctably shaped by their communities. Sandel understands liberalism to be claiming that human agency is in a crucial respect unattended by prior attachments or commitments of any sort. Current liberal thinking, Sandel observes, "begins with the claim that we are separate, individual persons, each with our [sic] own 75

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aims, interests, and conceptions of the good . " 1 Rawls, for example, seems to view human agents as essentially independent of what they in fact acknowledge or choose to pursue as good, which contingent commitments can never define them qua human. Sandel's aim is not merely to criticize this account of the "self," which he argues is excessively individualistic, and the theory of justice to which it gives rise; he also wishes to restore to liberalism a notion of the self as essentially constituted by its associations. In short, Sandel champions a liberalism that inspires individuals to identify themselves as citizens committed to realizing the common good. What I call Sandel's commu­ nitarian liberalism is, then, the focus of this essay. 2 One preliminary matter must be briefly addressed. As I have indi­ cated, Sandel's communitarian critique of liberalism initially emerges against the background of Rawls's political theory; specifically, Sandel criticizes what he calls Rawls's theory of the self. 3 Sandel in tum has been criticized for misreading Rawls. 4 To a careful reader it will be obvious that other interpretations of Rawls can indeed be given, in which quite different features are emphasized. (See, for example, Michael Pakaluk's essay on Rawls, this volume, chapter 1.) Whether Sandel is accurate in his reading of Rawls, however, is an issue I cannot enter into here. That Sandel has attempted to read Rawls with care and understanding is to my mind everywhere evident in Liberal­ ism and the Limits of Justice. Indeed, Sandel's reading of Rawls is in many respects sympathetic, at least in the sense of trying to think along with him and to identify the nerve of his argument. I sidestep these interpretive issues, not because I regard them as unimportant, but because I think the positions regarding the nature of the self and of political association Sandel attributes to Rawls mark out for the contemporary mind one of the more powerful and attractive ventures in political understanding-regardless of whether we can trace the lineage of this liberalism with definitive accuracy. Sandel seems persuasive when he contends that the liberalism he is calling into question ' 'has a deep and powerful appeal," that for contemporary Americans "it is our vision, the theory most thoroughly embodied in the practices and institutions most central to our public life. " 5 I propose, then, to take Sandel's remarks about Rawls at face value, in order to allow the larger issue, the soundness of the liberal view of the self, to be engaged.

Deontological Liberalism The version of liberalism against which Sandel contends is first de­ scribed as "deontological liberalism" and subsequently as "rights-

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based liberalism. " 6 Although the most sustained criticism is directed against Rawls, in later writings Sandel widens the scope of his criticism to include Ronald Dworkin and philosophers of libertarian bent, such as Robert Nozick.7 Whatever description is used, and regardless of the differences among various proponents, the core commitment of this liberalism, according to Sandel, is to a certain sort of political ar­ rangement: [A] just society [says this sort of liberalism] seeks not to promote any particular ends, but enables its citizens to pursue their own ends, consis­ tent with a similar liberty for all ; it therefore must govern by principles that do not presuppose any particular conception of the good. 8

The liberty that deontological liberalism champions is that of allowing each individual to choose which goods he will pursue, what sort of life he will lead. Membership in a liberal polity, then, does not itself commit one to any overarching conception of the good for man. Deontological liberalism is thus incompatible with the public accep­ tance of a perfectionist understanding of political community, accord­ ing to which political association is seen as having a particular telos or end. If everyone is free to follow his own conception of the good, and these conceptions are (as they typically seem to be) diverse, the question arises: How are such liberated individuals to live together? Where conceptions of human goods are allowed such unfettered liberty of pursuit, will not discord and strife threaten to tear apart political association? Deontological liberalism answers by recommending a view of political life as a neutral framework. Rather than conscript individuals to pursue a common good, the liberal polity will provide them with procedures designed to allow diverse goods to be pursued with a minimum of conflict. Sandel summarizes these points thus: This liberalism says, in other words, that what makes the just society just is not the telos or purpose or end at which it aims, but precisely its refusal to choose in advance among competing purposes and ends. In its constitution and its laws, the just society seeks to provide a framework within which its citizens can pursue their own values and ends, consistent with a similar liberty for others. 9

The best regime, according to this view, is what Sandel calls the "procedural republic." Sandel calls this species of liberalism "deontological" to stress its commitment to the priority of the right over the good. This priority

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means two things: that no one's individual rights may be subordinated to the common good, and that the derivation of these rights cannot make use of any particular understanding of, or commitment to, what is good for human beings as such. 1 0 We must understand rights as being in play and deserving of protection in advance of any engagement with particular notions of the good-this is the moral priority of the right over the good. Furthermore, we must understand rights as something whose justification we discover independently of any such conception of the good-this is the justificatory priority of the right over the good. In Rawls the priority of the right over the good is expressed by the assertion that "justice is the first virtue of social institutions." 1 1 The primacy of justice is glossed by Sandel in this way: justice is not merely one important value among others, to be weighed and considered as the occasion requires, but rather the means by which values are weighed and assessed. It is in this sense the "value of values, " so t o speak, not subject itself t o the same kind of trade-offs as the values it regulates. . . . W ith respect to social values generally, justice stands detached and aloof, as a fair decision procedure stands aloof from the claims of the disputants before it. 12

Justice as a framework of procedures uncommitted to any particular conception of the good allows diverse conceptions of the good to be pursued with harmony sufficient to keep the political community together. But how are the principles of justice discovered? And what warrant do we have for excluding the common good as a guiding principle of politics? Why can we not legitimately commit ourselves, and our fellow citizens, to an overarching political end? Choosing Selves Liberalism's answer to such questions, Sandel argues, involves a certain metaphysical conception of the self. We must recognize that we are persons whose constitution requires such political neutrality among ends. Liberalism demands the procedural republic because it conceives of human agents in a certain way; deontological political theory is buttressed by a distinctively liberal psychology. Without this metaphysical conception, Sandel maintains, much of the force of the liberal vision of politics would be diminished. How, then, does deontological liberalism view the self? In brief, it

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views the self as radically autonomous. The autonomy of human beings in political society-their rightful liberty to seek their own good, to direct their life as they choose-is paralleled by a conception of the self as essentially autonomous. This latter conviction is not political in nature, but metaphysical (or ontological), because it in­ volves an understanding of how the self, or human agent qua agent, is constituted. It is a view about what the self necessarily is. Essentially the self is not constituted by the ends it in fact chooses, the attach­ ments it makes, or the goods it desires. Rather, the self is simply the capacity to effect these engagements. Speaking about Rawls, Sandel says that "teleology to the contrary, what is most essential to our personhood is not the ends we choose but our capacity to choose them. " 1 3 In Rawls's own formulation, the self's capacity to choose means that "the self is prior to the ends which are affirmed by it. " 1 4 There is, then, a double priority within this sort of liberalism: as the right is prior to the good, so the self is prior to its ends. Sandel goes on to amplify this notion of the self as transcending its engagements: The priority of the self over its ends means that I am not merely the passive receptacle of the accumulated aims, attributes, and purposes thrown up by experience, not simply the product of the vagaries of circumstance, but always, irreducibly, an active, willing agent, distin­ guishable from my surroundings, and capable of choice. To identify any set of characteristics as my aims, ambitions, desires, and so on, is always to imply some subject "me" standing behind them, and the shape of this "me" must be given prior to any of the ends or attributes I bear . . . . [B]efore an end can be chosen, there must be a self around to choose it. 15

Actually choosing particular ends presupposes the capacity to choose; it is in recognition of this that we come to appreciate the priority of the self over its ends. Human beings are therefore, essentially and preeminently, choosers, agents with the capacity for willing ends. In one sense I shape my identity by the particular choices I make over time; but in a deeper sense my identity is already given prior to any choices I may make. For I always "stand behind" these choices as the chooser himself. My identity as a human agent consists in just this radical, primordial independence. We can now perhaps see how, according to Sandel, deontological liberalism's commitment to political arrangements that are neutral toward goods coheres with its conception of the self. We know in fact that particular conceptions of what is good are many, diverse, and evanescent. Furthermore, there seems to be no common conception

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of the common good. Therefore to install any specific notion of the good as normative for political society would be to impose on some members of that society an alien conception of the good. But this would be to override the essential feature of human agency, that is, the capacity to choose one's own good free of imposition by others. Installation of some particular notion of the common good would be tantamount to conscripting to its pursuit those who would otherwise not pursue that good. This would be to reverse the priority of the right over the good and the priority of the self over its ends. And this would represent a denial of agency. A consequence of imposing a conception of the good on political society is that its members are treated instrumentally, as means to an end which they have not chosen. Society is best arranged when it is governed by principles that do not presuppose any particular conception of the good, for any other arrangement would fail to respect persons as being capable of choice ; it would treat them as objects rather than subjects, as means rather than ends in themselves. 16

These last remarks, of course, recall the moral writings of Immanuel Kant, to which Sandel in fact traces the lineage of deontological liberalism. The notion of a self that is detached from any particular ends it chooses, inclinations it follows, or attachments it forms is reminiscent of Kant's transcendental subject. It is true that Rawls does not wish to adopt the Kantian account of the human subject. His own theory of justice, he says, "tries to present a natural procedural rendering of Kant's conception of the kingdom of ends, and of the notions of autonomy and the categorical imperative. " 1 7 For Rawls, although the self is quite properly to be conceived as prior to its ends, we must take care not to tum the self into a "ghostly," disembodied subject. Rawls seeks to revise Kant's transcendental self, without divesting it of the autonomy that supports the liberal vision of politics.

Unencumbered Selves Rawls's move away from Kant involves placing the human agent­ which we shall now call, following Sandel, the "unencumbered self"­ in a hypothetical prepolitical situation to determine under what politi­ cal principles such a self would choose henceforth to live. In other

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words, the question is what sort of regime human agents, operating simply in their capacity as human agents, would choose as being compatible with their status as choosing selves. Rawls calls this hypothetical situation the Original Position. In such circumstances, individuals would choose the procedural republic as that regime which best preserved their freedom of choice. The original position is a hypothetical choice situation in which human agents identify the basic contours of the political regime in which, given the kinds of agents they are, it is most appropriate for them to live. The original position comes before political activity begins. It is, as it were, a propaedeutic to politics. We must imagine such agents, Rawls says, making their choices under a so-called "veil of ignorance," which deprives them of any knowledge of their sex, race, natural abilities (for example, intelligence, physical strength), social and economic class-even the goods, values, and aims to which they will eventually commit themselves. 18 The original condition of ignorance is meant to accomplish two things. First, it is meant to ensure that the identification of the principles of justice, which will subsequently inform the political association, is made under conditions of equality and fairness. No considerations that could give rise to advantage or superiority in advance are admitted into the original choice situation. Second, the original condition allows human agency to be exhibited in the purest manner. If the human agent is fundamentally just a choosing subject, then only in a situation in which it is unencumbered by prior commit­ ments is human agency most itself. In Sandel's words: "For the unencumbered self, what matters above all, what is most essential to our personhood, are not the ends we choose but our capacity to choose them. The original position sums up this central claim about us." 1 9 To say that principles of justice that are subsequently to have probative force are chosen under prepolitical conditions of ignorance is just to say that they are not discovered by human beings who possess a given nature but are originated by the choices of human agents, "unconstrained by an order of value antecedently given. "20 The principles of justice chosen by individuals in the original position "are just in virtue of their choosing them."2 1 As Rawls says, "In justice as fairness the principles of justice are not thought of as self­ evident, but have their justification in the fact that they would be chosen. "22 Or, as he more recently put the point, individuals simply qua individuals are "self-originating sources of valid claims. "23 Rawl­ sian liberalism, Sandel writes, thus holds up to individuals a bracing

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vision of liberation: "Freed from the dictates of nature and the sanc­ tion of social roles, the human subject is installed as sovereign, cast as the author of the only moral meanings there are. " 24 Of course, considered in their full amplitude humans are more than merely choosing agents, and the human estate is more variegated than the original position. Yet how we understand our relationship to our communities, Sandel argues, is shaped in distinctive ways by the liberal ontology of the self. We grasp who we most essentially are, and the character and extent of our communal ties, in the light of how we conceive ourselves essentially to be. He notes that Rawls says that "it is not our aims that primarily reveal our nature but rather the principles that we would acknowledge to govern the background conditions under which these aims are to be formed. " 25 As liberal selves, we can certainly participate in communities and associations of all sorts. These are not confined to political affiliations, but can include member­ ship in religious, familial, fraternal, or social communities as well. So long as we view ourselves as essentially unencumbered selves, how­ ever, we will almost certainly understand all of our communal attach­ ments to be voluntary. We are not on the liberal view obliged to be members of any community, Sandel points out, and such membership is never constitutive of me. I have not forfeited anything essential as a human agent if I withdraw from a communal attachment. Sandel goes on to draw out the implications of this consequence of the liberal ontology of the self: W hat is denied to the unencumbered self is the possibility of membership in any community bound by moral ties antecedent to choice; he cannot belong to any community where the self itself could be at stake. Such a community---call it constitutive as against merely cooperative-would engage the identity as well as the interests of the participants, and so implicate its members in a citizenship more thoroughgoing than the unencumbered self can know. 26

That a polity should be seen as neutral among goods and that all communal attachments be understood as voluntary and peripheral to one's identity-these are the implications of the liberal ontology of the self as being prior to its ends. Sandel finds the ontology most strikingly figured in Rawls's conception of the original position. But it is not confined to Rawls; it is part of a more general way of viewing the human self as radically autonomous. We might put the point Sandel is making, vis-a-vis Rawls, as follows.

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The original position presents us with a minimal theory of the self which at the same time purports to be the deep truth about human agents. Individuals in their actual careers in political society and other social relationships will of course be to varying extents encumbered. They will be male or female, white or black, intelligent or stupid, weak or strong, wealthy or poor, benevolent or selfish, more or less communal in their attachments or more or less solitary and aloof. They will be committed to any number of goods and will therefore live according to a great diversity of life plans. What the original position does is to hold up to flesh-and-blood individuals a certain conception of themselves as human agents, such that they will recognize liberal political arrangements and voluntary associations as the only ones consistent with their identity most deeply understood. A just polity need not be in fact excessively individualistic; it may afford scope for a variety of communal pursuits and attachments. It may recognize obligations and fidelities that are incurred as a result of such attach­ ments. Still, these obligations cannot be incurred in any way other than by our voluntarily accepting them. They are not thrust on us by the accident of birth or by historical contingencies. We choose to be so related and so obligated-or we are not related or obligated at all. To think otherwise is to compromise an individual's character as a freely choosing agent. A polity that presecribes such a compromise forfeits its claim to be ordered justly. Sandel and the Difference Principle In Liberalism and the Limits of Justice, Sandel offers several internal criticisms of Rawls's theory of justice. We shall briefly rehearse his principal objections and then move on to consider his alternative conception of the self and its implications for political and social theory. Sandel argues that it is difficult to see how on Rawls's "thin" theory of the self any agreement, or contract, among parties to the original position can take place. That there is such a contract Rawls firmly maintains: By virtue of choosing behind a veil of ignorance, individuals in the original position arrive at a unanimous agreement about the principles of justice. They agree, that is, that a procedural republic would give them the best chance of pursuing their particular goods and life plans when they are politically situated. The bargain they strike is a fair one, Rawls says, because no one in the original position has

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knowledge of himself as he will be, sufficient to gain a special advan­ tage over others. All therefore choose neutral, or procedural, princi­ ples of justice. The difficulty with such a view arises when we scrutinize the original choosing agents more closely. Here conceptual incoherences, Sandel argues, come to the fore. Sandel argues that there is no warrant for positing a plurality of agents in the original position. And if there cannot be a plurality of agents, there can be no agreement or bargain. For what could individuate such selves given their radical equality as choosers? The capacity for choice is the same in each, and nothing additional is distinctive about them. Rawls wants to say that they all make the same choice; they all choose the same principles of justice. But this is just because they are identical as agents of choice. And their capacity to choose exhausts their identity here. In this they are the same, and in nothing are they different. A plurality of agents, then, seems ruled out by the sheer uniformity of agency. Sandel puts the matter thus: Rawls speaks throughout [A Theory of Justice] of the parties to the original position . . . . But since the veil of ignorance has the effect of depriving the parties, qua parties to the original position, of all distin­ guishing characteristics, it becomes difficult to see what their plurality could consist in . . . . [O]nce all individuating characteristics are excluded, the parties are not merely similarly situated (as persons in real life with similar life circumstances and certain overlapping interests), but identically situated.

In consequence, "not persons but only a single subject is found behind the veil of ignorance. ' ' 27 Closely related to this difficulty is another-namely, that of seeing how in the original position there can be the discussion, bargaining, even the speaking, that is necessary for understanding a bargain to have occurred. An agreement presupposes a number of agents with (initially) different opinions, different angles of view, about the matter under discussion. Again, the selves in the original position, however, are equally, and merely, choosers, which seems to preclude their being conversants altogether. Rawls's characterization of agents in the original position has the paradoxical (and perhaps unintended) consequence of establishing therein but a single speaker. Sandel ob­ serves:

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Discussion, like bargaining, presupposes some differences in the percep­ tions or interests or knowledge or concerns of the discussants, but in the original position, there are no such differences. We must therefore assume that the "deliberations" of the parties proceed in silence and issue in a single conception which is unanimously agreed to.28

In other words, selves in the original position are not sufficiently "thick" to provide matter for deliberation, bargaining, or agreement. The putative plurality of conversants collapses into a single speaker. And a single speaker cannot make a bargain or contract. Moreover, the liberal ontology of the self, Sandel argues, conflicts with the account of how goods in a community are shared according to principles of justice. In any community of individuals, goods will be produced and transactions will be performed. That is to say, what people accomplish by their efforts is distributed one way or another into the community. The question is how shall the distribution be effected in a just manner? Rawls's answer is that just distribution must accord with what he calls the Difference Principle, which stipulates (in Sandel's formulation) that the scheme of benefits and burdens [be arranged] so that the least advantaged may share in the resources of the fortunate. . . . [The difference principle] defines as just only those social and economic inequalities that work to the benefit of the least advantaged members of society. . . . [T]he difference principle defines Rawls's conception of democratic equality.29

Because the distribution of natural talents, such as intelligence, is arbitrary in the first place (hence not just), the outcome of the exercise of such talents by those fortunate enough to possess them is also arbitrary and not just. Merely setting up more ample opportunities to acquire or perfect natural talents is insufficient to establish justice. What is needed is ''an agreement to regard the distribution of natural talents as a common asset" rather than as natural endowments the fruits of which are something to which the one who possesses them is exclusively entitled. 30 The difference principle, then, provides the warrant for establishing a kind of welfare state. It serves as a rationale for distributing the fruits of our endeavors among our fellow citizens, for including all (and especially the impoverished) within the largesse of the community. "For Rawls, the principles of justice aim neither at rewarding virtue nor at giving people what they deserve, but instead at calling forth the

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resources and talents necessary to serve the common interest. " 3 1 The difference principle thus represents an attempt to justify what is surely a quintessential liberal concern: that those less favorably endowed by nature or circumstance receive some compensation from their com­ munity. Some will object that this conception of political community treats the abilities and achievements of some as resources for others; in other words, some people are treated as a means to the happiness or well­ being of others. For deontological liberalism, which emphasizes the moral autonomy of the individual-and which tends to be sympathetic to Kant's dictum that persons should always be treated as ends, never as means-this implication of the difference principle should be troubling. 32 One might think that individual autonomy and the differ­ ence principle are incompatible. Yet the difference principle seems in one important sense to be required by the notion of the self as unencumbered. Sandel observes: Persons can no more have an intrinsic worth [on the Rawlsian view of the self] than they can have intrinsic merit or desert, that is, a worth or merit or desert that is theirs prior to or independent of what just institutions may attribute to them. And as we have seen, no one can strictly speaking be said to deserve anything because no one can be said to have anything, at least not in the undistanced, constitutive sense of possession necessary to a desert base. On Rawls' s theory of the subject, no person or race can be inherently more worthy or deserving than another, not because all are intrinsically worthy and deserving-and equally so-but because none is intrinsically worthy or deserving, and so all claims must equally await the arrival of just institutions. 33

Sandel points out that the difference principle is to some extent supported by the liberal view of the self as unencumbered. If I am not essentially constituted by any of my "possessions"-that is, by the talents with which I have been favored by birth and circumstance, and the achievements I have won as a result-then I cannot be said to deserve any of these things. I cannot claim the fruits of my achieve­ ments as something I own, and which I may use, enjoy, and dispose of however I wish. Rawls, and other liberal thinkers, will not allow "the market" arrangements of "equal opportunity" or chance to distribute talents and their fruits. Given the Rawlsian ontology of the self, Sandel points out, I cannot be said to deserve the benefits that flow from, say, my fine physique and good looks, because they are only accidental, not essential

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facts about one. They describe attributes I have, not the person I am, and so cannot give rise to a claim of desert. Being an unencumbered self, this is true of everything about me. And so I cannot, as an individual , deserve anything at all. 34

Because individuals cannot be said to own their assets, Rawlsian liberalism says, we must regard them as common goods, owned by the community. They may therefore be distributed and managed for the benefit of all, the least advantaged no less than those more favored. As Sandel notes, the difference principle is a principle of sharing, whereby what would otherwise be understood as individual goods are now understood as common goods. The principal components of deontolog­ ical liberalism thus all seem to cohere: "[T]he picture so far remains intact; the priority of right, the denial of desert, and the unencumbered self all hang impressively together.''35 Closer inspection, however, reveals a tension between what the difference principle requires and the notion of the unencumbered self. Located as it is at the very heart of deontological liberalism, this incoherence makes the liberal notion of community impossible to justify. Sandel observes that it does not follow, from the conviction that an individual's assets do not belong to him (in the strong, constitutive sense), that these assets are common, that they belong to the commu­ nity. To be able to make this claim-which in turn supports the difference principle-one must "presuppose some prior moral tie among those whose assets [one] would deploy and whose efforts [one] would enlist in a common endeavor." 36 The liberal notion of community as an arena for distributing common assets requires a conception according to which human selves are constituted by their communal ties. The unencumbered self must be replaced by the situated, communal self. But this is just what the Rawlsian notion of the self rejects. "Short of the constitutive conception, deploying an individual's assets for the sake of the common good would seem an offense against the 'plurality and distinctness' of individuals this liberalism seeks above all to secure. " 37 Far from providing support for the liberal notion of community as an association for realizing the common good, the liberal ontology of the self undercuts it. At the heart of Rawlsian liberalism, then, is a debilitating dilemma. Either my prospects are left at the mercy of institutions established for 'prior and independent social ends , ' ends which may or may not coincide

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with my own, or I must count myself a member of a community defined in part by those ends, in which case I cease to be unencumbered by constitutive attachments. Either way, the difference principle contradicts the liberating aspiration of the deontological project. We cannot be persons for whom justice is primary and also be persons for whom the difference principle is a principle of justice. 38

The Communitarian Self The way to escape the dilemma, according to Sandel, is to reconceive the sense of the self. Instead of seeing the self as unencumbered by prior attachments, values, and so forth, Sandel would have us view the self as essentially constituted by such relationships. He would have us attend to those loyalties and convictions whose moral force consists partly in the fact that living by them is inseparable from understanding ourselves as the particular persons we are-as members of this family or community or nation or people, as bearers of this history, as sons and daughters of that revolution, as citizens of this republic. 39

For Sandel the self is established as a self not by the mere capacity for choice, but by prior attachments, history, interactions, receipts, and engagements of an immensely varied sort. We are thrown into a thick web of such relationships that begin to work on us prior to our choices. As a result of these attachments, we are embedded in "a common vocabulary of discourse and a background of implicit practices and understandings." 40 The self is essentially communal from the very beginning. To attempt to conceive of the prepolitical self as prior to such communal affiliations is a serious and debilitating error. The thickly constituted, encumbered self gives us a different kind of moral character from the thin, unencumbered self. When an encum­ bered self deliberates, for instance, it must consider not merely what it wants, what it would choose, but who it is. (Or more precisely, it must consider who it already is.) Communal selves must take into account the attachments that have already established identity. They will already have incurred obligations and allegiances not of their own origination and choosing. ' ' Allegiances such as these are more than values I happen to have or aims I 'espouse at any given time.' " Because such constitutive allegiances have shaped my very identity, my fulfillment of the obligations they impose "go beyond the obliga-

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tions I voluntarily incur and the 'natural duties' I owe to human beings as such. " 4 1 When I act on behalf of such others, my own identity is engaged, expressed, fulfilled. I can now regard myself not as a mere instrument of the community, to be conscripted to purposes that are alien to me, but as a participant in something to which I essentially belong. In fulfilling the requirements of the common good I am in a sense fulfilling myself. 42 There is much about the nature of the communal self that Sandel leaves unexplored. He does not offer anything approaching a compre­ hensive, or even wide-ranging, political philosophy. This is perhaps because his contribution to contemporary political thought is princi­ pally that of a critic. That is, his chief aim has been replacing an ontology of the self he regards as inimical to liberalism with one that supports it. By his own admission, he wants to rehabilitate liberalism, not supersede it. The first step in the regime of therapy is to reinstate the communal notion of the self. Beyond this work of criticism and reinstatement Sandel does not stray very far. He does not, for example, present anything like an account of the common good, or a detailed discussion of the nature of community, even though he evokes these ideas against deontological liberalism. He does not explain in what sense common goods are common, nor in what sense they are goods, nor whether a distinction should be drawn between common goods and the common good. Liberalism and the Limits of Justice ends with the provocative state­ ment, "When politics goes well, we can know a good in common that we cannot know alone. " 43 Surely what we would like to know is not just whether this is a sound observation, but what it means. It has the ring of a promissory note, of a sequel to be written. But we have not, thus far, been given the sequel in which a detailed account of political community and a fuller theory of the common good are worked out. Finally, Sandel offers an account of just how selves are communally constituted that, although enticing, is also incomplete. His hint (it is hardly more than this) that language plays a prominent role in estab­ lishing one's identity is worth exploring at greater length. In one of the most pregnant observations in Liberalism and the Limits of Justice, Sandel says: And in so far as our constitutive self-understandings comprehend a wider subject than the individual alone, whether a family or tribe or city or class or nation or people, to this extent they define a community in the constitutive sense. And what marks such a community is not merely a

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spirit of benevolence, or the prevalence of communitarian values, or even certain "shared final ends" alone, but a common vocabulary of discourse and a background of implicit practices and understandings . . . . 44

These remarks, it seems, should be taken to imply that, just as communities are established by the speaking of a common language, so also one's self-identity is formed by participating in a community of speech. 45 Unfortunately, Sandel does not amplify these intriguing features of language, and so leaves his account of community poorer than it need be. 46 There is some reason to suppose that Sandel is wary of moving very far toward a more comprehensive political philosophy because to do so would involve him in a formidable project of recovery. Sandel appears to believe that something like the traditional natural law view seems required if one rejects the ontology of the unencumbered self. He says: Only in a universe empty of telos , such as seventeenth-century science and philosophy affirmed, is it possible to conceive a subject apart from and prior to its purposes and ends. Only a world ungoverned by a purposive order leaves principles of justice open to human construction and conception of the good to individual choice. In this the depth of opposition between liberalism and teleological world views most fully ap­ pears.47

Sandel is here explicitly recalling the teleological commitments of "classical Greek and medieval Christian conceptions. "48 To these conceptions he opposes deontological liberalism; but whether this is for the purpose of provoking a reexamination and appreciation of those conceptions is not so clear. One is not sure whether Sandel is recommending what he himself feels unable to provide. That he has in fact not yet undertaken to provide a teleological formulation is, however, certain.49 Near the close of Liberalism and the Limits of Justice he writes: ' ' Although there may be a certain ultimate contingency in my having wound up the person I am-only theology can say for sure-it makes a moral difference none the less that, being the person I am, I affirm these ends rather than those, turn this way rather than that. "50 This is a cryptic remark. Sandel appears to be suggesting that only in the light of some insight we have into an ultimate, overarching human destiny can the communities that are so crucial in shaping our identities themselves be appraised. And furthermore, he seems to be suggesting

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that the latter insight is to be found, if it is discovered at all, in a mode of discourse different from politics and political theory, namely, in theology. This prompts one to raise an interesting question: Is theology somehow needed to "complete" political philosophy? In any event, it looks as though Sandel recognizes that we need to have a way of speaking about an ultimate human good, but acknowledges that he is unable to provide it. In yet another way, Sandel points toward a more traditional orientation, one in which theological considerations are considered "in play" in our attempts to understand who we are and how we can best enjoy a life together. On the other hand, one must exercise caution regarding the theologi­ cal issue as it appears in Sandel. In a review of Richard Neuhaus' s The Naked Public Square, Sandel appears to recommend the restoration of a sense of community and the common good without having recourse to religious ideals. He finds an alternative basis for communal identity in the tradition of civic republicanism, "a public philosophy concerned less with salvation than with citizenship." 5 1 His remarks suggest, not that religion is unimportant-it may be very important in our private lives, in family life for example (which Cicero, we may recall, calls the "nursery" of our public life)-but that we must look elsewhere for the resources by which to form our political associations. To those who are interested in reinvigorating the older philosophical tradition, Sandel might seem to stop considerably short of presenting a satisfactory political philosophy. Wedded to a powerful and sophisti­ cated critique of a certain strand of liberalism are hints, suggestions, intimations, and enticing acknowledgments. Yet let us not linger over the prospect of books that have not been written. Sandel offers a compelling demonstration of some of the central deficiencies of contemporary liberalism; and he underscores the urgency of reexamin­ ing the resources of what he calls the classical-medieval tradition for understanding our present predicaments.52 Precisely because Sandel's work points beyond itself to something more satisfying, it represents a significant achievement.

Notes 1. Michael J. Sandel, "Morality and the Liberal Ideal, " New Republic , May 7, 1984, p. 16. 2. Sandel is often grouped with other political theorists under the rubric

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"communitarian critics of liberalism." Although far from constituting a philo­ sophical school, communitarians nevertheless share a cluster of convictions, most notably that human agents are inevitably situated in, and are therefore constituted by, historical communities and traditions. Along with Sandel, perhaps most often mentioned in this connection is Alasdair MacIntyre; see the latter's Whose Justice? Which Rationality? (Notre Dame, Ind.: University of Notre Dame Press, 1988) and After Virtue: A Study in Moral Theory, 2nd ed. (Notre Dame, Ind.: University of Notre Dame Press, 1984). Other contemporary thinkers who emphasize communitarian themes are Charles Taylor, Robert Bellah, William Sullivan, and Benjamin Barber. See Taylor's "Introduction" and essay entitled "The Nature and Scope of Distributive Justice, " in Charles Taylor, Philosophy and the Human Sciences : Philosophi­ cal Papers 2 (Cambridge: Cambridge University Press, 1985), pp. 1- 12, 289-3 17; Robert Bellah et al., Habits of the Heart: Individualism and Commit­ ment in American Life (Berkeley : University of California Press, 1985) ; William Sullivan, Reconstructing Public Philosophy (Berkeley: University of California Press, 1982) ; and Benjamin Barber, Strong Democracy : Participa­ tory Politics for a New Age (Berkeley: University of California Press, 1984). William Galston is sometimes located on the edges of this critique of liberalism; see Justice and the Human Good (Chicago: University of Chicago Press, 1980) and "Defending Liberalism, " American Political Science Review 76 (September 1976):621-29. For a general discussion see Christopher Lasch, "The Communitarian Critique of Liberalism," Soundings 69 (Summer 1985):60-76. For a vigorous critique of the communitarians-who the author characterizes as "antiliberals"-see Stephen Holmes, "The Permanent Struc­ ture of Antiliberal Thought," in Nancy L. Rosenblum, ed., Liberalism and the Moral Life (Cambridge: Harvard University Press, 1989), pp. 227-53. 3. Rawls is the focus of Sandel's critique in his first work, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982). 4. For just such a criticism of Sandel's reading of Rawls, see Amy Gut­ mann, "Communitarian Critics of Liberalism, " Philosophy and Public Affairs 14 (Summer 1985):308-22. See also Brian Barry's review of Sandel's Liberal­ ism and the Limits of Justice in Ethics 94 (April 1984): 523-25. For additional assessments of this work see the reviews by Jan Narveson, Canadian Journal of Philosophy 17 (March 1987) :227-34 ; Charles Larmore, Journal of Philoso­ phy 8 1 (June 1984):336-43 ; and Norman S. Care, Nous 19 (September 1985):459-67. 5. Michael J. Sandel, "The Procedural Republic and the Unencumbered Self, " Political Theory 12 (February 1984) :82. More recently, Sandel has traced the emergence of the autonomous notion of the self in the legal reasoning of the Supreme Court, particularly as regards its opinions in cases concerning privacy rights. Voluntarist justifications for such rights, he con­ tends, began to gather force in the early 1 %0s in cases dealing with the sale of contraceptives. Explicit reliance on the capacity of persons to choose ends for

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themselves appeared in the abortion cases of the 1970s. This emphasis is now well advanced, Sandel says, in constitutional adjudication. Consequently, one can say that the crucial features of deontological liberalism are entrenched not merely in much political theory, in the halls of academe, but also in the civic institutions where justice is meted out, and according to whose decisions we must, as a people, take our bearings. The presuppositions and "main motifs" of deontological liberalism ' ' figure with increasing prominence in our moral and political culture" and "increasingly set the terms of political debate in general. " Michael J. Sandel, "Moral Argument and Liberal Toleration: Abor­ tion and Homosexuality, " California Law Review 77 (1989):521, 538 . 6. For the first description, see Liberalism, p. l and passim . ; for the second, see Michael J. Sandel, "The Political Theory of the Procedural Republic, " Revue de rhetaphysique et de morale 93 (January-March 1988):61; and Sandel's "Introduction" to the volume of readings he has edited, Liberal­ ism and Its Critics (New York: New York University Press, 1984), p. 7ff. 7. See "The Political Theory of the Procedural Republic, " p. 67 and Liberalism , pp. 66-67. 8. "The Procedural Republic and the Unencumbered Self, " p. 82. 9. "The Procedural Republic and the Unencumbered Self, " p. 82. IO. See Liberalism, p. 2 and "The Procedural Republic and the Unencum­ bered Self," p. 82. 11. John Rawls, A Theory ofJustice (Cambridge, Mass . : Harvard University Press, 1971), p. 3 ; quoted in Liberalism , p. 15. 12. Liberalism, pp. 15-16. 13. Liberalism, p. 19. 14. A Theory of Justice, p. 560 ; quoted in Liberalism , p. 19. 15. Liberalism , p. 19. 16 . "The Procedural Republic and the Unencumbered Self," p. 85. 17. A Theory ofJustice, p. 264; quoted in Liberalism , p. 14. 18 . For a more extended discussion of the original position and the veil of ignorance, see Michael Pakaluk's essay on Rawls in this volume. 19. "The Procedural Republic and the Unencumbered Self, " p. 86. 20. " The Procedural Republic and the Unencumbered Self, " p. 86. 21. Liberalism , p. 122. 22. A Theory ofJustice, p. 42; quoted in Liberalism , p. 123. 23 . John Rawls, "Kantian Constructivism in Moral Theory, " Journal of Philosophy 77 (September 1980):543 ; quoted in Liberalism , p. 177. 24. "The Procedural Republic and the Unencumbered Self," p. 87. 25. A Theory of Justice, p. 560; quoted in "The Procedural Republic and the Unencumbered Self," p. 86. 26. "The Procedural Republic and the Unencumbered Self, " p. 87; empha­ sis in original. 27. Liberalism, p. 131 ; emphases in original. 28. Liberalism , p. 129.

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Liberalism, p. 70. A Theory of Justice, p. 101 ; quoted in Liberalism, p. 70. Liberalism, p. 88. Robert Nozick makes just this objection. See his Anarchy , State, and Utopia (New York: Basic Books, 1974), p. 228. See also Sandel's discussion of the objection in Liberalism , pp. 78-79. 33. Liberalism, pp. 138-39.

29. 30. 31. 32.

34. "The Procedural Republic and the Unencumbered Self, " p. 89 ; emphases in original. 35. "The Procedural Republic and the Unencumbered Self," p. 89. 36 . "The Procedural Republic and the Unencumbered Self," p. 89. 37. "The Procedural Republic and the Unencumbered Self, " pp. 89-90. Cf. Liberalism , p. 141: " W ithout some conception of a wider subject of posses­ sion, such as Rawls' notion of common assets seems to require, there would be no obvious reason why these assets should be made to serve general social ends rather than individual ones. To the contrary; in the absence of some wider subject of possession, to regard 'my' abilities and endowments as mere instruments of a wider social purpose is to use me as a means to others' ends, and thus to violate a central Rawlsian and Kantian moral injunction. " 38. Liberalism, p. 178. 39 . Liberalism, p. 179. 40. Liberalism, pp. 172-73. 41. Liberalism, p. 179 . 42. It should be noted that the communities for which Sandel seems to have the most sympathy are the smaller, subpolitical ("intermediate") communities of family, church, neighborhood, labor union, and municipality. Although Sandel recognizes the penchant for forging a sense of national community­ advanced earlier in this century by Herbert Croly and the proponents of the New Deal, and more recently by presidential candidate Walter Mondale and New York Governor Mario Cuomo-he thinks this project has failed to win the allegiance of a majority of Americans. See "The Political Theory of the Procedural Republic," pp. 63, 65-66 ; and "Morality and the Liberal Ideal, " p. 17. 43. Liberalism, p. 183. 44. Liberalism, pp. 172-73; emphasis added. 45. The notion of "speaking a common language" should be understood in a wide, rather than a narrow, sense. Not merely the speaking of common tongue--English or French or Latin-but the sharing of what might be called the language of a culture is what I wish to emphasize. This notion embraces the moral perceptions of a given community, what is perceived to be good and bad, honorable and shameful, praiseworthy and blameworthy, just and unjust, noble and base, beautiful and ugly, and so forth. A language in this sense provides us with the basic vocabulary and the fundamental distinctions without which we would be bereft of guidance in choosing what is good, satisfying,

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fulfilling. The individual must learn to speak such a language; he cannot discover or create it on his own. Its acquisition requires initiation into a community of discourse. Indeed, though I cannot work this out in detail here, it seems to be the case that willing and choosing are learned achievements, and that they too require the acquisition of a certain mode of discourse. I am suggesting that the ability to choose requires speech, which in turn requires being with others. If willing and choosing are communal in this fundamental way, then Rawls' s depiction of what occurs in the original position will seem to have little explanatory power. 46. Certain classical authors seem especially to have appreciated this wider sense of language and its role in establishing communities. Aristotle, for instance, says that "man alone of the animals possesses speech (logos). " Animals, in contrast (he goes on to say), merely possess "voice" (phonos), that is, simply the ability to make sounds, by which they indicate pleasure and pain. Speech enables human beings to reveal what is good and bad, just and unjust; it is through the articulations involved in speaking that these things stand out, appear to us. By means of speech humans are able to live a moral life, and "it is association in a common perception of these things which makes a family and polis . " See Politics, I. 2, 1253al 0-17 (trans. H. Rackham ; London: Heineman, 1932) . Compare Aristotle's statement with Cicero's re­ mark that the "first principle" of communities is "reason and speech" (ratio et oratio) ; De Officiis I. 16 (trans. Walter Miller; Cambridge, Mass . : Harvard University Press, 1913). Cicero suggests further that the capacity for reason and speech is achieved in community, with others, "by the process of teaching and learning, of communicating, discussing, and reasoning. " These activities "associate men together and unite them in a sort of natural fraternity. " Idem. The mental framework intimated by such passages seems very far from the perspective of deontological liberalism, but close to what Sandel means to draw our attention. 47. Liberalism, p. 175. 48 . Liberalism, p. 175. 49. Sandel need not turn to some version of teleology or the natural law tradition to buttress his notion of encumbered selves. The choice is not simply between unencumbered-selves-without-teleology and encumbered-selves­ with-teleology. One could use the account given by those contemporary thinkers who recommend some version of the " historicist" view. Here one would take one's bearings by, and commit one's loyalties to, those communi­ ties of which one just happens to find oneself a part. Benjamin Barber argues for this sort of understanding in Strong Democracy (Berkeley: University of California Press, 1984). See also Michael Oakeshott's work, notably Rational­ ism and Politics (London: Methuen, 1963) and On Human Conduct (Oxford: Clarendon Press, 1975). In any case, Sandel has shown no affinity for this way of thinking. 50. Liberalism, p. 180; emphasis added.

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51. Michael J. Sandel, "The State and the Soul," review of The Naked Public Square, by Richard John Neuhaus and The Lost Soul of American Politics , by John P. Diggins, in New Republic lO June (1985), 40.

52. I do not mean to suggest, of course, that what I am calling the classical-medieval tradition is homogeneous. Important differences among, say, Thucydides, Plato, Aristotle, Cicero, Augustine, and Thomas Aquinas must be recognized. But common understandings and proclivities also can be discovered, which form illuminating contrasts with contemporary lines of thought. The reader interested in thinking further about the question of political association and the human good has available a wide range of materials, including the original works themselves. A good place to begin acquainting oneself with this tradition is Leo Strauss and Joseph Cropsey (eds.) History of Political Philosophy , 3rd ed. (Chicago: University of Chicago Press, 1987) . For helpful discussions of the idea of community, see Yves R. Simon, Philosophy of Democratic Government (Chicago: University of Chi­ cago Press, 1951), ch. l , especially the section entitled "The Volition of the Common Good" ; and A General Theory of Authority (Notre Dame, Ind.: University of Notre Dame Press, 1962), ch. 2: "Common Good and Common Action. " Worth consulting as well is Charles Taylor, "Cross Purposes: The Liberal-Communitarian Debate, " in Liberalism and the Moral Life, pp. 159-182; pp. 167-72 are especially helpful for enriching one's understanding of the concept of the common good.

Chapter 6 Alasdair MacIntyre: Recovering the Rationality of Traditions

David M. Wagner Liberalism, accustomed to swinging the axe of skeptical criticism at other traditions of moral philosophy, has been coming under attack itself of late years from Alasdair MacIntyre (formerly of Vanderbilt, now of Notre Dame). The core of his argument is that the attempt to ground morality in tradition-independent rationality leads only to emotivism ; rational morality must rest on the practices of human communities, which give rise to traditions of enquiry. Rationality subsists within intellectual traditions, not outside them. This theory has been developed in After Virtue (1981, 2nd ed. 1984), Whose Justice? Which Rationality ? (1988), and Three Rival Versions of Moral Enquiry: Encyclopedia, Genealogy, and Tradition (1990). 1 For MacIntyre, liberalism is in crisis because, in all its forms, it is an attempt to carry on a fundamentally flawed tradition of enquiry, namely, that of the Enlightenment. The Enlightenment, of course, did not look upon itself as a tradition, but rather as an emancipation from tradition. From this emancipation would come new modes of moral thinking, which would be independent of all tradition. In After Virtue MacIntyre details the failures of this project and argues that it was in­ evitable. The view that such failure was not inevitable has led to various attempts to make it work ; these attempts (John Stuart Mill, John Rawls, Ronald Dworkin, etc. ) constitute the subsequent history of the liberal tradition. 2 In After Virtue, MacIntyre argues that these, too, have failed, and in Whose Justice? Which Rationality ?, he pursues the point that the Enlightenment and its liberal progeny, although con­ ceived as antidotes to tradition, are themselves merely one more tradition of enquiry. MacIntyre's position throughout is that, contrary to the Enlightenment's pretensions, no rationally conclusive, tradition97

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independent standards exist for choosing any one tradition of moral enquiry rather than another. Yet MacIntyre rejects relativism. Instead, he adopts a test that consists of asking which tradition is best able to repel challenges and deal with the "epistemological crises" that arise when one tradition is challenged by another. On the last page of Whose Justice? Which Rationality ? , MacIntyre suggests that the winner under this robustness test is the Thomistic tradition. When we look at his 1988 Gifford Lectures at the University of Edinburgh, published as Three Rival Versions of Moral Inquiry , we find that Maclntyre's universe of credible options-which in After Virtue boiled down to Nietzsche or Aristotle-now boils down to Nietzsche or Thomas Aquinas. It is fundamental for MacIntyre-and essential before we go fur­ ther-that the word "tradition" signifies not merely inherited beliefs or practices, but also an ongoing, transgenerational discussion based on inherited beliefs and capable of amending and reformulating those beliefs when necessary. Thus what MacIntyre means by "tradition" is a tradition of enquiry; or, as he clarifies in Three Rival Version of Moral Enquiry , philosophy as a craft, in which apprentices must learn the rudiments from a master. The Starting Point: Emotivism MacIntyre begins his argument in the first book we are considering, After Virtue, by observing something about contemporary moral argu­ ment that must have struck anyone who has observed it or participated in it: whatever rational and analytic elements it may contain, it soon boils down to "Well I just feel. . . . " This, says MacIntyre, is emo­ tivism: Emotivism is the doctrine that all evaluative judgments and more specifi­ cally all moral judgments are nothing but expressions of preference, expressions of attitude or feeling, insofar as they are moral or evaluative in character. 3

Emotivism fills the void left by the breakdown of earlier forms of moral enquiry, which had certain features that MacIntyre considers crucial: they proceeded from the actual practice of human communi­ ties, and were therefore historically contingent; and they had a definite

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view of the human telos. The Enlightenment acted, and was meant to act, as a solvent both to teleology and religion: away with the personal­ ist God whose will matters in human affairs; away, too, with any notion of human purpose beyond what the individual chooses for himself (or, for Rousseau, what the community, detached from both God and tradition, chooses for him). Away, as well, with mere histori­ cal contingency: the Enlightenment project was a search for rational morality as such. What this project has left us with in the field of moral argument is sometimes called pluralism, but this reassuring word masks a trou­ bling reality: [The notion of pluralism] may equally well apply to an ordered dialogue of intersecting viewpoints and to an unharmonious melange of ill-assorted fragments. The suspicion-and for the moment it can only be a suspi­ cion-that it is the latter with which we have to deal is heightened when we recognize that all those various concepts which inform our moral discourse were originally at home in larger totalities of theory and practice in which they enjoyed a role and function supplied by contexts of which they have now been deprived.4

The foregoing passage is a brief preview of much of the rest of the book and its two sequels, in which certain "larger totalities of theory and practice" are looked at in great detail. MacIntyre's purpose in doing so is to support his thesis as to why moral argument has degenerated to its present state: the project of deriving morality from pure reason, while rejecting experience,5 revelation, and teleology, had to fail, and its failure has left in its wake nothing but emotivism and indeterminacy. The ls-Ought Problem as Key to the Failure of the Enlightenment David Hume argued (and modem legal positivists are fond of repeat­ ing) that there is no logical connection between a premise framed around "is" and a conclusion framed around "ought." You cannot get from a descriptive premise to a prescriptive conclusion. MacIntyre sees this dilemma as a typical product of the Enlightenment, and as evidence of its fundamental errors, especially its rejection of teleology. To use Maclntyre's two examples, we know what a good watch or a

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good farmer is, because we know what a watch or a farmer is supposed to be. Thus we may safely assert that, if some amended version of the 'No "ought" conclusion from "is" premises' principle is to hold good , it must exclude arguments involving functional concepts from its scope . But this suggests strongly that those who have insisted that all moral argument fall within the scope of such a principle may have been doing so, because they took it for granted that no moral arguments involve functional concepts. Yet moral arguments within the classical , Aristote­ lian tradition-whether in its Greek or in its medieval versions-involve at least one central functional concept, the concept of man understood as having an essential nature and an essential purpose or function ; and it is when and only when the classical tradition in its integrity has been substantially rejected that moral arguments change their character so that they fall within some version of the 'No "ought" conclusion from "is" premises' principle. 6

As MacIntyre sees it, the Enlightenment severed morality from the only bases it had ever had-which were the only bases it ever could have . People today who emote about how they "feel" about grave moral issues , and people today who must listen to them, are the heirs of the confusion to which the Enlightenment project has led. The Enlightenment and Nietzsche The nineteenth century saw many attempts to shore up the Enlighten­ ment. One of these was the profound certainty of the Victorian rationalists that their intellectual community was uniquely able (as against past eras of human enquiry) to discern "facts" from "values" and to engage in a dispassionate search for objective truth. MacIntyre analyzes the Victorian rationalist worldview in Three Rival Versions of Moral Enquiry . Viewing them as a man of the late twentieth century, MacIntyre punctures the pomposity of the late Victorians, but it is important to his overall argument that he was not the first to do so. That honor belongs to a man of the late nineteenth century­ Nietzsche. In Maclntyre's work, Nietzsche is not only a powerful critic of all rationalism, but also a symbol of ultimate ruin. This-Nietzscheanism, with its radical denial of truth and affirmation of will-is what happens when you make the mistakes the Enlightenment made. Like Alberich

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in Richard Wagner's Ring of the Nibelung, Nietzsche appears at intervals in Maclntyre's recent books, cursing the gods and predicting the day he will storm Valhalla with Hella's hordes. MacIntyre credits Nietzsche's moral philosophy with being "one of the two genuine theoretical alternatives confronting anyone trying to analyze the moral condition of our culture . . . . " 7 Indeed, Nietzsche is "the moral philosopher if the only alternatives to Nietzsche's moral philosophy turn out to be those formulated by the philosophers of the Enlightenment and their successors. " 8 Nietzsche is the only game in town, if the Enlightenment and its successors are the only other game in town. But are they? We find the above-quoted statements in a chapter called "Nietzsche or Aristotle. " These are the alternatives, as seen in After Virtue­ although MacIntyre also is concerned that we may need a new St. Benedict, apparently feeling that a new dark age is upon us and that the Aristotelian tradition can only be conserved through retreat from the world. MacIntyre joins Nietzsche in criticizing the Enlightenment for failing to answer-or even to ask-the question, "What sort of person am I to become?" Instead of conceiving of morality as a derivative of the process of answering this question, as an Aristotelian would, the Enlightenment redefined morality as self-existing rules, and took as the initial question of moral enquiry, "What rules ought we to follow, and why ought we to obey them?" This shift from virtues-first to rules-first analysis dominates liberal thinking today: Ronald Dworkin has recently argued that the central doctrine of modern liberalism is the thesis that questions about the good life for man or the ends of human life are to be regarded from the public standpoint as systematically unsettlable. On these individuals are free to agree or disagree. The rules of morality and law hence are not to be derived from or justified in terms of some fundamental conception of the good for man. In arguing thus Dworkin has, I believe, identified a stance characteristic not just of liberalism, but of modernity. "The virtues are sentiments, that is, related families of dispositions and propensities regulated by a higher­ order desire, in this case a desire to act from the corresponding moral principles, " asserts John Rawls, one of the latest moral philosophers of modernity [Theory of Justice, 1971, p. 192] and elsewhere he defines 'the fundamental moral virtues' as "strong and normally effective desires to act on the basic principles of right" [p. 436].9

So the problem is, you grasp the rules end of the stick, and you find Nietzsche on the other end. But long ago, humankind grasped the other end of the stick, that of the virtues.

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Forward into the Past So saying, MacIntyre begins two separate tours of the history of moral enquiry: one in After Virtue, the other accounting for the bulk of Whose Justice? Which Rationality?. For each tradition and philosopher that he looks at, he describes a way of thinking about justice, and a corresponding way of thinking about practical rationality. Links be­ tween the philosophers and the historical circumstances are stressed. 1 0 The object of these tours is to show us the origins and development of what MacIntyre calls "tradition-constituted, tradition-constitutive enquiry. " Of what did the Enlightenment deprive us? What the Enlightenment made us for the most part blind to and what we now need to recover is, so I shall argue, a conception of rational enquiry as embodied in a tradition, a conception according to which the standards of rational justification themselves emerge from and are part of a history in which they transcend the limitations of and provide remedies for the defects of their predeces­ sors within the history of that same tradition. 1 1

It should be emphasized that history and philosophy are intertwined throughout Maclntyre's survey; it is part of his argument that modern departmental boundaries within universities-boundaries that are part of the heritage of the Enlightenment-are arbitrary and tend to falsify our view of the past: There ought not to be two histories, one of political and moral action and one of political and moral theorizing, because there were not two pasts, one populated only by actions, the other only by theories. Every action is the bearer and expression of more or less theory-laden beliefs and concepts; every piece of theorizing and every expression of belief is a political and moral action. 12

It is outside the scope of this paper to convey the richness of detail and analysis in both of these excursions. But in outline, this is what we see (note that the focus is sometimes on the communities themselves, and sometimes on the individual philosophers who con­ ducted moral enquiry from within the life of those communities): Homeric Greece: a world in which human functions are very well defined, and every person is judged in terms of how well he fulfills the function in which he finds himself, especially those of soldier and king. Periclean Athens: a polis animated by Homeric notions of virtue as

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function well performed, but increasingly tom by a split between what MacIntyre calles "the goods of excellence" and "the goods of effectiveness." Aristotle: systematizes the enquiry begun by Socrates and Plato, in a manner that not only incorporates the practices of Athens but later interacts fruitfully with Judaism, Islam, and Christianity. Augustine: amends the Aristotelian concept of the will to account for the fact that the human person sometimes wills one thing yet does another, as St. Paul pointed out. Aquinas: overcomes the epistemological crisis caused in Christianity by Christendom's encounter with Aristotle; synthesizes Augustine and Aristotle and thereby inaugurates a powerful new tradition. The Scottish Enlightenment: an uneasy synthesis of Calvinist Chris­ tianity and Aristotle. David Hume: as an "Anglicizing" Scotsman, rejects the Scottish Enlightenment in favor of an English concept of reciprocal rights in a society based on landed property. The Enlightenment: attempts to replace and supersede tradition by means of rationalism, but fails to overcome its inherent tendency toward nihilism and merely inaugurates another tradition.

The Demise of Liberalism The tradition inaugurated by the Enlightenment is that of liberalism, and Maclntyre's argument that this tradition has failed is central to his overall thesis. The Enlightenment was an attempt to overcome tradition, religion, and particularity; in moral philosophy, its goal was "to construct a morality for tradition-free individuals. " 1 3 Over the past 200 years this has been attempted "by an appeal to one out of several conceptions of universalizability or to one out of equally multifarious conceptions of utility or to shared intuitions or to some combination of these," 1 4 but the only result is "a history of continually unresolved disputes, so that there emerges no uncontested and incontestable account of what tradition-independent morality consists in and consequently no neutral set of criteria by means of which the claims of rival and contending traditions could be adjudicated." 15 As evidence, MacIntyre points to the book review pages of the professional philosophical journals, which are "the graveyards of constructive academic philosophy." 16 He might also have cited certain Supreme Court decisions in which

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the clashes of opinion and dissent reveal fundamental clashes of moral outlook (e.g., Bowers v . Hardwick 17 and Michael H. v . Gerald D. 18) . At all events, hardly anyone would dispute that our epoch is charac­ terized by moral clashes that seem not to be publicly resolvable. Does that mean the failure of moral rationalism as such? More precisely: must we conclude that the Enlightenment experiment in moral philoso­ phy has failed because its intellectual heirs have failed to produce moral arguments that persuade all rational persons to whom they are made? Yes, says MacIntyre-because the Enlightenment set itself just such a goal. What else can a project of deriving rationally based, tradition­ independent morality mean, if not that the work-product of that en­ quiry will be compelling to all rational hearers? Those who have tried to carry out the Enlightenment project (in this passage MacIntyre specifically cites Kant and Rawls, and alludes to Mill by referencing the utility standard 1 9) may protest at being held to such a high standard of success, but it is not MacIntyre who has imposed this standard on them. His test, as we shall see, is not the power to persuade all rational listeners, but the power to express and carry forward a tradition capable of overcoming the epistemological crises that it faces as its history unfolds. The failure of the intellectual project that the Enlightenment set for itself has led to paradoxes in the social order constructed under its dominion, that of liberal individualism. The perpetual inconclusiveness of liberal moral argument means that the liberal social order must treat moral questions as perpetually open. Appeal to revelation or tradition may solve them for individuals or for some types of groups, but cannot solve them for the liberal public order as a whole. Thus, liberal political philosophy becomes (to borrow a standard term that MacIntyre does not himself use) antiperfectionist. "An indeterminability which was from the standpoint of an earlier liberalism a grave defect to be remedied as soon as possible has become, in the eyes of some liberals at least, a kind of virtue. " 20 But this retreat to antiperfectionism leads to a sort of new perfec­ tionism. Appeals to tradition and/or revelation are banned from the public sphere by liberal principles-and this ban is experienced by members of tradition- and/or revelation-based communities within a liberal society as a very heavy burden. Any conception of the human good according to which, for example, it is the duty of government to educate the members of the community

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morally, so that they come to live out that conception of the good, may up to a point be held as a private theory by individuals or groups, but any serious attempt to embody it in public life will be proscribed. And this qualification of course entails not only that liberal individualism does indeed have its own broad conception of the good, which it is engaged in imposing politically, legally, socially, and culturally wherever it has the power to do so, but also that in so doing its toleration of rival conceptions of the good in the public arena is severely limited.21

MacIntyre here has his finger on a paradox that may be observed in action in many arenas today. A possible example would be a scene that is occasionally played out in public elementary schools: materials chosen by school authorities for classroom use are offensive to the conservative values of some parents; the parents consider the use of such materials in the public schools (private schools would be a different matter) to be an imposition by the liberal social order, and they complain ; the school authorities (who, in this parable, represent the liberal social order), instead of respecting the autonomy of the tradition of which the parents are a part, consider the parents' com­ plaints to be an imposition by a tradition- and/or revelation-based group. The question of who is imposing on whom in such situations is incapable of value-neutral resolution. 22 Caught in such embarrassing postures, liberalism does not look much like the great rationalistic reconstruction of morality that the Enlightenment tried to inaugurate. Instead, in Maclntyrean terms, it looks a lot like a tradition of enquiry-and one experiencing an uncommonly severe epistemological crisis at that. It derives stability from its ability to subsume its internal conflict under procedures, political and legal, "in which conflict resolution takes place without invoking any overall theory of human good. " 23 Nonetheless, "liberal­ ism can provide no compelling arguments in favor of its conception of the human good except by appeal to premises which collectively already presuppose that theory.''24 And what, finally, is the liberal conception of the human good? Maclntyre's answer has to be inferred from his narrative as a whole. It is apparently this: the human good according to the Enlightenment was to embark, free from tradition and revelation, on a search for the human good. This search proving inconclusive, the human good under liberalism became the preservation of the political and cultural arrange­ ments necessary to a tradition- and revelation-free search for the human good. The circularity of this concept of the human good

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leads to the paradoxically illiberal behavior of the liberal social order whenever it must react to a community within itself that asserts a nonliberal concept of the human good. The Road to Recovery It is no wonder, then, that some philosophers have begun looking for alternatives to liberalism. But abandoning the liberal tradition cannot mean simply looking for moral principles superior to those developed by liberalism, for that would be a recapitulation of the Enlightenment project of seeking a morality based on reason alone. That project presupposed that a neutral ground exists, outside of all traditions, from which a moral system can be built up, and from which competing traditions can be judged. That project failed because, MacIntyre main­ tains, there is no such neutral ground. There is no neutral rationality­ as-such. Instead, MacIntyre would seek to recover "what the Enlight­ enment deprived us of," that is, the rationality of traditions. 25 Basing himself on his earlier narrative descriptions of various tradi­ tions of enquiry and the concepts of justice and rationality that they gave rise to, MacIntyre sketches a view of traditions of enquiry as modes of knowing. The mechanism of the rationality of traditions proceeds in three stages: 26 1. Pure historical contingency: the circumstances and practices that a given community has as a matter of historical happenstance. This is the starting point. 2. A challenge to the practices and beliefs of the community: This challenge may be external or internal. It reveals a lack of resources for confronting new questions. 3. Rejection, emendation, or reformulation. This is the fish-or-cut­ bait stage of a tradition. The challenge of step 2 must be dealt with. If it cannot be overcome, then the tradition has been rejected. But if the challenge can be met by either amending or reformulating the tradition, then it survives, stronger than before. MacIntyre has three criteria for a successful emendation or reformu­ lation: It must solve previously intractable problems; it must explain the earlier inability of the tradition to cope with the challenge; and it

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must maintain continuity with the tradition as it was before the chal­ lenge. This is a neat enough way to generalize from the history of traditions of moral enquiry, but the real question is, how does one deny the existence of a rational means of choosing among competing traditions, and yet avoid the charge of relativism? Or, if MacIntyre can avoid that charge, how can he avoid the charge of irrationalism? When, near the end of Whose Justice? Which Rationality?, he finally explains the process of choosing a tradition, he describes a typical experience thus: Upon encountering a coherent presentation of one particular tradition of rational enquiry, either in its seminal texts or in some later, perhaps contemporary, restatement of its positions, such a person [i.e., a person who has not yet given allegiance to any tradition] will often experience a shock of recognition: this is not only, such a person may say, what I now take to be true but in some measure what I have always taken to be true. 27

At this point MacIntyre is so anti-Nietzschean that he is actually Wagnerian: what he describes sounds like Sieglinde's famous exclama­ tion in Die Walkiire of sudden recognition of kinship with another. 28 But is this mode of recognition not as irrationalist as anything in Niet­ zsche? This is perhaps the most heavily criticized link in Maclntyre's chain. But I believe that when he denies "rationality as such," he does not mean to deny the possibility of the mind gaining and possessing real knowledge. His argument, rather, goes to the question of what comes first. The Enlightenment project, and those doctrines of objective morality that are traceable to that project, was to start with rationality, and then use it to choose, or build, a moral system. No, says MacInt­ yre: tradition is the horse, not the cart. MacIntyre blasts Edmund Burke for seeing in tradition "wisdom without reflection. "29 For MacIntyre, "rational theorizing"30 is both possible and important, but it is, and can only be, "a work of and within tradition. "3 1 To engage in rational theorizing, one must enter into a tradition-a process that MacIntyre describes in terms such as "transformation"32 and even "conversion."33 What kind of transformation is required? It is that which is involved in making oneself into an apprentice to a craft, the craft in this case of philosophical enquiry. 34

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It should be clear, therefore, that Maclntyre's skepticism about "rationality as such" is not a denial of the possibility of philosophy. But there is still the question of how would-be enquirers are to choose the tradition in which they wish to seek an apprenticeship. The answer, basically, is a robustness test: Which traditions have, historically, demonstrated the greatest capacity to overcome epistemo­ logical crises, and to carry on, strengthened rather than weakened by the challenges they have faced? Drawing on the totality of the history he has narrated in Whose Justice? Which Rationality?, MacIntyre, in the penultimate paragraph of that book, declares that in Thomism we find an Aristotelian tradition with resources for its own enlargement, correc­ tion, and defense, resources which suggest that prima facie at least a case has been made for concluding first that those who have thought their way through the topics of justice and practical rationality, from the standpoint constructed by and in the direction pointed out first by Aristotle and then by Aquinas, have every reason at least so far to hold that the rationality of their tradition has been confirmed in its encounters with other tradi­ tions and, second, that the task of characterizing and accounting for the achievements and successes, as well as the frustrations and failures, of the Thomistic tradition in the terms afforded by the rival traditions of enquiry, may, even from the point of view of the adherents of those traditions, be a more demanding task than has sometimes been sup­ posed.35

Maclntyre's next book, a reader might have thought, would have been an elaboration of that paragraph. Three Rival Versions of Moral Enquiry is not that book-although it does do at least two valuable things: It carries forward the analysis of moral enquiry as a craft, making the case that authority, far from being inimical to rational enquiry, is its precondition; and it compares the Thomistic tradition in great detail with two rivals: late-nineteenth-century rationalism (or "encyclopedia," because this tradition is exemplified for MacIntyre by the ninth edition of the Encyclopedia Britannica), and Nietzschean­ ism (or "genealogy," because Maclntyre's focus within Nietzsche's work is on Toward a Genealogy of Morals). Conclusion MacIntyre describes a philosophical world being turned upside down. A philosophy that has presented itself since its inception as the haven

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of rational persons rejecting the hoary myths of the past is shown to be something of a hoary myth itself. A philosophy that took iconoclasm as its style is itself seen as a tottering idol. And the solution to the crisis arising from the fall of that idol is shown to lie along the lines of the very ideas and traditions that the idol tried to destroy. Questions, however, remain. Maclntyre's attempted escape from the relativism problem, what I have called the robustness test, remains problematic. Is that test rationally defensible? If not, why use it? Why is a robust tradition necessarily to be preferred to an evanescent one? But if the robustness test is defensible, then is it not a neutral, tradition-independent criterion for judging between traditions­ something MacIntyre has said does not exist? The very least that MacIntyre can be said to have achieved is to have directed enquiry at one of the main problems of contemporary moral argument, namely, its ultimate indeterminacy. We can argue from premises, but how do people go about choosing premises, and how should they do so? MacIntyre has engaged the debate at that level. At the other extreme, that of the maximum characterization of Maclntyre's achievement, we may have here the seeds of a new way of conducting moral debate, a way that could vindicate many communities of practice and belief that have been trampled by the long reign of the Enlightenment and its successors-the dawn of a Counter­ Enlightenment.

Notes I . After Virtue (Notre Dame, Ind . : University of Notre Dame Press, 1981); Whose Justice ? Which Rationality ? (Notre Dame, Ind. : University of Notre Dame Press, 1988); Three Rival Versions of Moral Inquiry: Encyclopedia, Genealogy, and Tradition (Notre Dame, Ind.: University of Notre Dame

Press, 1990). 2. Although most of the theories that lie in the path of MacIntyre' s scythe are liberal ones, conservative attempts to revivify the Enlightenment tradition are equally threatened. See, for example, H . Arkes, First Things (Princeton, N.J.: Princeton University Press, 1986). 3. After Virtue, p. 12 (emphasis in original). 4. After Virtue, p. 10. 5. MacIntyre speaks of "historical contingency," a more subtle concept than experience in the everyday sense. To derive morality from historically contingent circumstances means more than simply to learn from experience: it

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means to construct a morality on the basis of "what our people do" or "what a person who has such-and-such a role in our community must do to fulfill that role well. " The Enlightenment, which viewed tradition as per se oppressive , could not but despise any morality so derived, preferring to ground morality on what must be apparent to any rational person-i.e. , (MacIntyre would say) on what was apparent to Denis Diderot and his friends. 6. After Virtue, p . 58 (emphasis in original) . 7. After Virtue, p. 1 10. 8. After Virtue, p . 1 14 (emphasis in original). 9. After Virtue, p. 1 19 (emphasis in original). 10. These links do not amount to "historicism" in the sense condemned by students of Leo Strauss, that is, the notion that past philosophy is conditioned by its historical circumstances and is therefore of no present interest. MacInt­ yre calls himself an historicist and asserts explicitly that no philosophy can be understood apart from its historical circumstances. However, for him, the historically contingent nature of philosophy argues for trying to understand past ages as a participant (to learn their language as a new first language, as he likes to put it-see chapter 19, entitled "Traditions and Translation" in Whose Justice? (pp. 370-88)-rather than for discarding their philosophical work-product.) 1 1 . Whose Justice? p. 7. 12. After Virtue, p. 6 1 . 1 3 . Whose Justice?, p . 334. 14. Whose Justice?, p. 334. 15. Whose Justice?, p . 334. 16. Whose Justice?, p. 334. 17. 478 U.S. 1 86 ( 1 986). 18. 109 S . Ct . 2333 ( 1 989). 19. Whose Justice?, p. 334. 20. Whose Justice?, p. 335. 2 1 . Whose Justice?, p. 336. 22. The liberal lobby People for the American Way assimilates parental complaints of the type discussed here to a category that it calls "Attacks on the freedom to learn . " Thus, for the type of liberal that PAW represents , interference with liberal coercion is an attack on rationality as such. PAW in this instance exemplifies antiperfectionist theory turning into perfectionist practice . See Attacks on the Freedom to Learn: People for the American Way 1989-1990 Report ( 1 990). 23 . Whose Justice?, p. 344. 24. Whose Justice?, p . 345 . 25. Whose Justice?, p. 7. 26. What follows is a summary of the chapter entitled "The Rationality of Traditions" in Whose Justice? 27. Whose Justice?, p. 394 .

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28. In Act I of Die Walkiire, Sieglinde says to Siegmund: "You are the spring that I longed for in the frosty time of winter. My heart greeted you in holy fear when my glance first beheld you. I was a mere stranger from of old; all around me was friendless . . . . But you I recognized, shining and clear. As soon as I saw you, you were my own. What I hid in my breast, what I am, bright as the day shone forth, and like a resounding cry fell on my ear, when in the frosty friendless emptiness I first beheld my friend. " 29 . E . Burke, Reflections on the Revolution in France (New York: Liberal Arts Press, 1955). See Whose Justice?, p. 353. 30. Whose Justice?, p. 353. 3 1 . Whose Justice?, p. 353. 32. Whose Justice?, p. 396. 33. Whose Justice? p. 396. 34. Three Rival Versions (Notre Dame, Ind.: University of Notre Dame Press, 1990), p. 6 1 . 35. Whose Justice?, pp. 402-3.

Chapter 7 Roberto Unger: Liberalism and "Superliberalism"

Russell Bittinger In The Critical Legal Studies Movement, Roberto Unger says that the goal of CLS is to reformulate leftist thought by making it engage "a larger body of ideas. " 1 This larger body of ideas is nothing other than the legal, political, and moral convictions that comprise liberal modernity and its conception of the rule of law. The aim of CLS, a movement with which Unger identifies, is the subversion of these convictions, in particular the belief that there is a principled way to distinguish between law and politics. For around this distinction are clustered several interrelated themes, including the distinction between ideology and legal doctrines; the moral neutrality of the adjudicative, in contrast to the legislative, function of law ; and the ideal of a rule of law that merely umpires contests for power. Because Unger envisages the movement primarily in terms of a negative response to this larger body of ideas which, broadly con­ strued, constitute the liberal conception of the rule of law, there is no convenient way to proffer a positive conception of CLS. The motley assortment of radicals associated with the movement do not represent a single point of view, either in terms of theory or practice. From the all-purpose vocabulary of ''disentrenchment'' of hierarchies, '' empow­ erment" of groups on the political and economic margins, and notions about "participatory democracy," one is only apt to glean those generic slogans that suggest the polemics of the New Left, but which offer little in the way of a positive definition of either CLS doctrines or programs. Therefore, in what follows on these pages, no such defini­ tion will be attempted.2 This essay focuses instead on Unger's philosophy rather than the CLS. In the first part I summarize his understanding of the twin themes of formalism and objectivism in liberal legal theory. Then I try 113

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to sort out two quite distinct lines of criticism he mounts against liberal legal culture: the first can be regarded as an internal critique, for Unger argues that the evolution of liberal legal culture contains the seeds of its own dissolution, and hence requires only such criticism as is necessary to make this clear; the second represents Unger's own self­ styled "superliberalism," which entails a new conception of the human subject, and an account of what manner of institutional life is appro­ priate to such a subject. Finally, I conclude with a schematic and provisional summary. This summary must be regarded as merely provisional for at least two reasons. In the first place, Unger's philoso­ phy is still in progress. Although he has not repudiated the internal criticism of liberalism found in his earliest work, Knowledge and Politics (1975), 3 he has modified his own theory of the human subject. And changes along this latter front have tended to reorient his account of the former. In the second place, Unger is still at work on the project of giving a detailed and systematic account of political institutions. Until this is completed, there is no sure way to say precisely what alternatives to liberalism he has in mind. Hence, this essay should be regarded as a set of snapshots of some of the more prominent parts of his theory as it has evolved over the past fifteen years. Formalism and Objectivism At the outset of The Critical Legal Studies Movement, Unger contends that the CLS is unified around the two overriding themes of legal formalism and legal objectivism. To understand what he means by formalism and objectivism, it is worth looking at this entire passage: Formalism . . . is a commitment to, and therefore also a belief in the possibility of, a method of legal justification that contrasts with open­ ended disputes about the basic terms of social life, disputes that people call ideological, philosophical, or visionary. Such conflicts fall far short of the closely guarded canon of inference and argument that the formalist claims for legal analysis . This formalism holds impersonal purposes, policies , and principles to be indispensable components of legal reason­ ing. Formalism in the conventional sense-the search for a method of deduction from a gapless system of rules-is merely the anomalous, limiting case of this jurisprudence. A second distinctive formalist thesis is that only through such a restrained, relatively apolitical method of analy­ sis is legal doctrine possible . Legal doctrine or legal analysis is a concep­ tual practice that combines two characteristics: the willingness to work

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from the institutionally defined materials of a given collective tradition and the claim to speak authoritatively within this tradition, to elaborate it from within in a way that is meant, at least ultimately, to affect the application of state power. Doctrine can exist, according to the formalist view, because of a contrast between the more determinate rationality of legal analysis and the less determinate rationality of ideological contests . 4 Objectivism is the belief that the authoritative legal materials-the system of statutes, cases, and accepted legal ideas-embody and sustain a defensible scheme of human association. They display , though always imperfectly , an intelligible moral order. Alternatively they show the results of practical constraints upon social life-constraints such as those of economic efficiency-that, taken together with constant human desires, have a normative force. The laws are not merely the outcome of contingent power struggles or of practical pressures lacking in rightful au­ thority. 5

By formalism, Unger has something more in mind than the modern reliance upon method to resolve disputes over content. True enough, since Descartes, the intellectual disciplines of Western culture are committed to a kind of formalism or methodologism: namely, the conditions of warranted assertability about matters of content (saying things are true) are controlled by a method; the rationality of the method, rather than the intelligibility of things to be studied, is re­ garded as the principle of inquiry. The ordo cognoscendi (the order of the known) has priority over the ordo essendi (the order of being). To say this much is only to state a truism about modern thought in general. In legal theory, however, formalism can be thought of as the doctrine that "legal rules form a consistent and complete whole from which the answer to any legal question can be logically deduced simply by discovering the applicable rule and applying it to the facts of the case. " 6 This definition of formalism perhaps makes more sense if we add the proviso that the interpretation and application of rules should not depend-or depend only incidentally-upon fresh assessments of the soundness of the conceptions of the right and the good that compete in the political and social arena. It is this last qualification that guides Unger's understanding of legal formalism. At least in matters of legal and political theory, formalism draws its strength from a contrast between, on the one hand, the open­ ended disputes about social life-disputes that are driven by private desire, differences in social and economic standing between agents, and religious and philosophical convictions about the good life-and on the other hand, apolitical and impersonal standards by which such

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disputes are to be adjudicated. In the American political order, for example, this contrast is reflected in the notion that legislatures will inevitably give play to human willfulness and contests over ideology. But the application of law must remain neutral. Thus we recall Alexan­ der Hamilton's remark in Federalist No. 78, that the judiciary is to be a matter neither of force nor will, but judgment alone. Law-making, in other words, is regarded as more controversial in its foundations and more indeterminate in its implications than the adjudicative function of law. Although controversial and indetermi­ nate, the law-making powers are justified either because they represent the ideal of equality (the wills of citizens count equally) or because of the validity of the procedures that represent the neutral sluice-gates through which human willfulness is channeled.7 The formalist does not look to law-making, but ultimately to adjudication to contain conflict. Disputes are finally to be resolved by appeal to very determinate procedures and rules, which are regarded as apolitical, neutral, and worthy of our respect and confidence precisely because they are impersonal. Hence, legal doctrine, Unger contends, takes on a life of its own, for it can always be favorably contrasted with the willful, ideological, and open-ended character of political and legislative dis­ course. One of the ideas uniting the disparate elements of the CLS is the conviction that legal formalism, and with it, the law-politics distinc­ tion, is a charade. As Duncan Kennedy, for example, has written: Teachers teach nonsense when they persuade students that legal reason­ ing is distinct, as a method for reaching correct results , from ethical or political discourse in general. . . . There is never a "correct legal solution" that is other than the correct ethical or political solution to that legal problem. 8

Kennedy and Unger alike contend that it will do no good to contrast the indeterminate and open-ended character of moral and political debate with the determinate and autonomous character of legal reason­ ing because the very distinction is drawn from judgments that have already been tendered about moral and political life. Therefore, to claim that the non- or paralegal dimension can be constrained by neutral principles that are not themselves already implicated in moral and political judgments is nonsense. Indeed, formalism always relies upon what Unger calls objectivism. By objectivism, Unger means the conviction that there are authorita-

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tive legal materials and tools, ranging from systems of statutes and patterns of precedents in case law, to legal theories. The objectivist, Unger says, believes that these materials embody and sustain a defen­ sible scheme of human association. Hence, the constraints placed upon social life by law are not merely the outcome of contingent power struggles, but are rather matters of principle. And by principle, Unger means necessities of reason, nature, history, or economic efficiency that justify a legal order as something more than a rationalization of private desire and power. Throughout his writings, especially his early works Knowledge and Politics (1975) and Law in Modern Society (1976),9 Unger devoted considerable effort to tracing out the modem quest for these principles, which guarantee that the ordo Juris (legal order) is grounded in an objective and defensible conception of human association. Unger notes that it is not untypical of the modern lawyer to keep his formalism although avoiding the objectivist assumptions. 1 0 That is to say, the theorists and practioners of modem law are happier when they retreat from the more substantive issues (typically reflected in a legislative setting) in favor of the adjudicative (and seemingly more professional) functions of law. The latter are impersonal, mechanical, and professional, and are thus engaged without tackling the question of what moral order is presupposed or exhibited in the rules and procedures. Unger contends not only that the formalist and objectivist assumptions interlock as reciprocal and mutually conditioned parts, but also that both must be understood in the context of "habitual social life." 1 1 The formative context of "habitual social life," Unger proposes, arises from the containment of conflict. 1 2 Every society has not only its ways of containing conflict, but also justifications for these modes of containment. The theorist, therefore, must understand not only the modes of containment, but also how the devices take on a life of their own and tend to make themselves immune from disturbance. 1 3 Unger's thesis, restated in one way or another throughout his writings, is that modem liberal legal culture relies on the twin perspectives of formal­ ism and objectivism to contain conflict, but that it does so only by obscurantism and evasion. That is to say, its strategy is to consign fundamental issues of justice to analysis under the formalist assump­ tions. And when it becomes necessary to articulate the objectivist assumptions, it does so in the thinnest terms (terms that are merely restatements of the formalist assumptions, or in the language of natural rights based upon relatively noncontroversial premisses), or in the

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language of necessitarianism: namely historical, philosophical, or eco­ nomic theories that purport to show that human life and association cannot be otherwise than the way it is found in modernity. Hence, liberalism tries to render its modes of containment not just immune from disturbance, but from criticism altogether. Unger on Liberalism From the foregoing remarks, it is clear that Unger's criticism of liberalism has to concurrently (1) clarify the relation between the formalist and objectivist assumptions; (2) expose the strategies of obscurantism and evasion regarding that relation; and (3) attack di­ rectly the objectivist assumption. Virtually all contemporary critics of liberalism, including Unger, argue that liberalism fails to make good on what Unger has called the objectivist assumptions: which is to say that one continues to play the liberal game, to no avail, if the critic only tackles the formalistic assumptions. A society that puts such a stake in legal formalism surely makes many other assumptions about the nature and limits of human knowledge, about human nature and its moral capacities, and about the experience, history, and tradition of the particular society that the theorist serves, and at least implicitly assumes to be authoritative. At the beginning of Knowledge and Politics, Unger writes: [O]ur initial efforts should be devoted to defining with as much precision as possible the ideas that determine and limit the possibilities of our thinking. Liberalism must be seen all of a piece, not just as a set of doctrines about the disposition of power and wealth, but as a metaphysi­ cal conception of the mind and society. Only then can its true nature be understood, and its secret empire overthrown . 14

As this passage suggests, Unger wants to adopt a classical philosophi­ cal approach to matters of law and politics. The question of knowledge and indeed the question of being (at least human being) are the decisive questions for political theory. '5 Although (as I point out later) Unger finally proposes a point of view on knowledge and human nature that is profoundly antithetical to the classical tradition, it is nevertheless fair to say that he has not abandoned the notion that politics and law must be rational, and that rationality requires some attunement of practical reason to the order of being.

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It is worth asking what, in particular, Unger means by liberalism. Does he mean an intellectual culture that has certain historical, geo­ graphical, and institutional boundaries? Or does he mean philosophical defenses of liberalism? Surely, it is one thing to speak of nineteenth­ century England, another thing to speak of the work of John Stuart Mill, and quite another thing still to speak of a tradition of theorizing that can broadly be called liberal. Unger is not sufficiently clear about this and has been criticized not only for fast and loose definitions of liberalism, but also for setting forth the weaker philosophical versions of what he attacks. 16 It is true that he equates liberalism with Western modernity. Without trying here to either analyze or criticize his definition, I believe that we can give a rough, but fairly accurate, picture of what he means. Liberalism is an understanding of the rule of law that obtains under the conditions of societies characterized by moral, religious, and political pluralism; in which the state abides by the rule of law insofar as it is viewed as neutral, and in some rigorous way distinguishable from politics. The ideas that shape this arrange­ ment are found in the Enlightenment and in the tradition of philosophi­ cal and political theory that takes its bearings from the Enlightenment. Liberalism is, in short, Western modernity. Unger's criticism of liberalism-his effort to see it "all of a piece"­ proceeds along two fronts. The first is an internal criticism. Here, Unger tries to show why the liberal commitment to neutral, imper­ sonal, and apolitical standards of law are undermined and are at odds with other philosophical assumptions about human desire and the limits of human knowledge. These philosophical and epistemological doctrines are at once crucial to the enshrinement of formalism and yet would seem to thwart the very possibility of having a credible idea of practical reason. Indeed, Unger contends that liberalism cannot, by its own principles, accept the idea of practical rationality, for its epistemology and psychology make it impossible to conceive of how universals and particulars are mediated, and how private desire can be transcended. 17 Thus, the liberal theory of law is irrational, 18 and once this is seen for what it is worth, the other distinctions and contrasts essential to liberalism-public-private, neutrality-willfulness, princi­ ple-power-collapse of their own weight. The second path taken by Unger is a positive criticism. That is, he submits liberalism to his own understanding of human nature and human knowledge. As I said earlier, this path presents certain difficul­ ties to the interpreter of Unger's work. For one thing, Unger has significantly changed his own view of human nature. In Knowledge

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and Politics ( 1975), for example, he seems to adopt a neo-Aristotelian view of human nature, practical reason, and community. In his books The Critical Legal Studies Movement ( 1983), and Passion: An Essay on Personality ( 1984), it becomes clear that he is not a new-fangled Aristotelian, but rather an existentialist who claims that the only noncontingent fact of human nature is its plasticity and revisability. 19 In fact, in CLS Unger began to characterize his position as a "superlib­ eralism" : Instead, it represents superliberalism. It pushes the liberal premisses about state and society, about freedom from dependence and governance of social relations by the will, to the point at which they merge into a large ambition: the building of a social world less alien to a self that can always violate the generative rules of its own mental or social constructs and put other rules and other constructs in their place. 20

In this respect, then, we not only face the difficulty of understanding how it is possible to give a normative ontology of a being that can violate and reinvent and violate once again its own mental and social constructs, but we also have to deal with the fact that Unger continues, even after his turn toward radical existentialism, to insist that legal and political theory ought to be done on the basis of an adequate anthropology that includes some features of the biblical view of the human condition.

A Sociology of Knowledge Perhaps the best way to characterize Unger's method is to say that it is a sociology of knowledge. He is interested in revealing how, in modernity, the sociological and institutional contraints upon human action, and the philosophical ideas concerning the limits of human knowledge, are mutually conditioned. We recall his remark that liberal­ ism must be seen "all of a piece," not just as a set of ad hoc doctrines, but as a "metaphysical conception of mind and society." Accordingly, I first outline his understanding of the social basis of modem law and politics; and then I treat the philosophical elements. Modern political and legal structures, on Unger's analysis, emerged when society could no longer be viewed as an organic whole, but had to be seen as an amalgam of ends entertained by individuals.2 1 No social structures proved sufficiently stable and comprehensive to win

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the spontaneous allegiance of its members. 22 Hence, containment of conflict could no longer rely upon endogenous law-a law that is grown rather than made, for example in the way common law was understood by Sir Matthew Hale and other common lawyers before the Benthamite reforms. The salient mark of modernity in the West is the transition from endogenous to exogenous law. Once society is viewed chiefly as an arena of conflicting interests, external laws rather than society become the mediator of disputes. This, in turn, makes it seem plausible that law is in no way socially mediated, but is rather autonomous . If no one person, sect, or group within society can be relied upon to have privileged access to religious and moral truth,23 then there is need to recognize some ground of law that can be generalized and thus do the work of guaranteeing equality among the contending individuals and factions. The first bid for such a law in Western modernity was what Unger calls "public natural law"24 -a term, by the way, which he borrowed from Leo Strauss. 25 Unger writes: The natural right doctrine made room for the transcendent element in European civilization through its emphasis on the existence of universal entitlements and rules superior to state power. Yet it also acknowledged the implications of social pluralism, for it came to conceive of natural rights as powers of the individual to act within a sphere of absolute discretion, rather than as entitlements to definite substantive goods. This in turn led to the view that right consisted less of a particular set of social arrangements than of a process for conflict resolution , a view which was to become the core of much Western political and legal thought. 26

It is important to understand that, for Unger, the natural law doctrine of rights is not the same thing as the older cosmological and perfection­ istic doctrines of natural law. Modern natural law theory makes few, if any, claims about unified human ends (whether of individuals or society). These ends are precisely what are under dispute, and there­ fore ought to be left in the private sphere of individual discretion. Thus, the qualifying term "public" is important, for the modern natural law of rights is geared to a public discourse and is not designed to be action-guiding either for individual morality or for substantive visions of the overall social good. Indeed, modem natural law is a theoretical device introduced for the purpose of delineating and maintaining the liberal understanding of the distinction between private and public spheres of power. For reasons that I shall outline shortly, Unger contends that this modern bid to ground public order in natural law failed-even if it be

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true, which Unger also wants to argue, that modern legal and political order cannot do without it. It failed, as we shall see, not only because the epistemologies of modern philosophy conspired to subvert even the minimal premisses of public natural law, but also because the theories never were capable of resolving disputes so much as they were aimed at ruling out certain kinds of substance as fit candidates for being publicly debated in the first place. Before we pick up his criticism of public natural law, it is necessary to mention one other feature of modern social life that figures prominently in Unger's analysis. In modernity, he argues, the individual personality is carved up among different and often conflicting specialized activities. Our identi­ ties are tied together abstractly, rather than in the context of group life. 27 We can no longer assume that society will mediate our identity (via kinship and pregiven social roles). Thus, the quest for self-identity becomes perhaps the most important matter of competition in modern society. We must agree, in some principled way, to use each other to ratify the self. Accordingly, Unger argues that modern man craves respect and esteem rather than love. 28 Although we cannot treat this issue here at the level of detail that it deserves, it is certainly true that esteem, respect, and the ratification of one's identity continually crop up as the basic goods in the thought of contemporary rights theorists such as John Rawls, D. A. J. Richards, and Laurence Tribe. We can be tempted to write this off as the inappropriate incursion of pop psychology into legal and political thought, but if Unger is accurate, the language of esteem and the claim to rights in this regard bespeak the central problem: 29 namely, that the same sociological conditions that generated the need, or at least the plausibility, of public natural law are also the conditions that conspire against thin or minimalistic versions of it. Individuals who crave the acquisition of selfhood through the ratification of others are in need of something more than a thinly conceived public order of rights. In early modernity, it was perhaps possible to restrict the goods of natural rights to a few elementary conditions of survival on the one hand, and to procedural goods on the other. Theorists were typically concerned about freedom (from coercion) and property, and it is generally true to say that seventeenth- and eighteenth-century theorists were not immediately interested in the goods of esteem, respect, and the ratification of one's quest for self-identity. Indeed, these were precisely those matters that were best left to the private sphere, for they are dependent upon the vagaries of desire, upbringing, religion,

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and a host of other factors that either cannot be publicly known or cannot be universalized. The elevation of respect and esteem (rather than life, liberty, and property) as the primary goods guarantees that substance has to be reintroduced into rights theories. Furthermore, insofar as individuals crave a ratification of self-identity, the language of individualism is patently inadequate. It would seem that individuals want social relations-and not relations that have merely instrumental value, but ones that fulfill the self. 30 Unger, the dialectician, wants to argue that this individualism tends to cancel itself out and passes over into a desire for a social identity ; ultimately, he suggests, the search for ratification of selfhood bespeaks a desire for a solidarity based on love. The internal criticism of modern legal and political order, then, involves a sociological and social-psychological analysis that looks very much like a Hegelian dialectic. Liberalism represents one moment in the progression of modernity and is to be criticized for strategies that freeze social progress and arbitrarily constrain the reinvention of society. These arbitrary contraints are rooted in the commitment to formalism (imper­ sonal, neutral, and apolitical standards of adjudicating disputes) and objectivism (the notion that the social order cannot be other than what it is). Unger argues that philosophical doctrines have not only not kept pace with the historical and societal developments, but were, from the very outset, at odds with the commitment to a natural law, and for that matter, were at odds with the ideal that law ought to be impersonal, apolitical, neutral, predictable, and universal. The modern rejection of the doctrine of intelligible essences, Unger contends, leaves "no stone of the preliberal metaphysic standing. "3 1 Once it is admitted that human reason cannot penetrate the intelligibility of things, [i]t is possible to divide the world in an indefinite number of ways. No one way of dividing it describes what the world is really like. That is because things lack intelligible essences. Something has an intelligible essence if it has a feature, capable of being apprehended, by virtue of which it belongs to one category of things rather than to another cat­ egory.32

In any case, he points out that once we jettison the notion that the human intellect can grasp the intelligibility of things-or, to use the scholastic dictum, enjoy a conformity with the world ad rem-then it follows that any rank ordering of things in the world is not justified by reason (at least not reason in its older speculative office). 33

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The modern gambit, Unger explains, was to divide reason not into the offices of speculative and practical, but rather into the private and the public. From one perspective, reason can be looked upon as the tool of desire. In this role, reason treats desires as psychic experiences to be organized instrumentally for the satisfaction of the self.34 The content of desire, subjective interests, and substantive ends remain, however, irremediably private. From another perspective, reason is formal, not given to the prescription of substantive values (which are embedded in the privacy of subjective desire), but rather devoted to the task of calculating instrumentalities and efficiencies and to the legal role of establishing procedural rules. Unger argues that this epistemology reinforces the liberal political understanding of the pri­ vate and the public. W hen reasoning they belong to a public world because knowledge, to the extent it is true, does not vary among persons. When desiring, however, men are private beings because they can never offer others more than a partial justification for their goals in the public language of thought. Means and form, as objects of reason, are public; ends and substance, as concerns of desire, are private. 3'

Unger charges that modern epistemologies, which drastically limit what can count as knowledge, make the contingent social and political arrangments of liberalism appear not only rational and neutral, but necessary. Reason has discovered its limits, and those limits conve­ niently turn out to be the limits that have already been reached on a practical level. In other words, modern epistemology does not repre­ sent an objective philosophical survey of the limits of human knowl­ edge, but rather looks (suspiciously) to be the rationalization of a political arrangement. The doctrine of the mind as a welter of desires governed by rules reflects a social order of conflicting interests gov­ erned by exogenous laws. But what kind of public natural law can be maintained under these limits? Clearly, the older cosmological and teleological schemes of natural law are ruled out; for even if there should be a teleological cosmos, our only clue to it would have to be drawn either from subjective desire or from religious doctrine, neither of which can rise to the standpoint of public rationality. Unger insists that even the minimalist natural law of rights is insupportable, since there is no reason to believe that rights are anything more than public instrumen­ talities serving ends that cannot (or must not) be publicly articulated

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in any normative way. Why shouldn't rights be abridged, he asks, if they turn out, in a particular case, not to be useful? 36 Therefore, Unger claims that the "idea of practical reason is unknown to liberal thought and inconsistent with its premisses. " 37 Practical reason requires the mediation of universals and particulars, as well as the proportioning of means toward ends. But liberal episte­ mology denies that we can have a public knowledge of any universals except those that are either completely formal or have objectivity only as instrumental means. But means toward wh at? The what must be filled in from the side of subjective desire. Yet, without a conviction that the ends are intelligible, objective, and universalizable, one cannot have a practical rationality about the means-certainly not a public mode of practical reason. 38 The liberal theory of adjudication is an illusion, he asserts, because there are no impartial standpoints except those that remain entirely formal. 39 Liberal epistemology not only fails to account for impartial standpoints (or at least those that would be of any use in resolving disputes), but it also seeks to fend off any effort to mount a substantive criticism of the social order. For conceptions of what is in keeping with the dignity of man, or which ends are truly fitting for human nature, are condemned to the sphere of private desire. "The emperor of Japan," Unger remarks, "separated by a screen from his groveling subjects, could not have hoped for a better hiding place than the one this view of knowledge gives to the liberal doctrine. " 40 As I said earlier, in Knowledge and Politics, Unger styled himself not just as a critic of liberalism, but also a friend of the classical tradition of political theory. He wrote, for instance, that: I am sure there is nothing new in the doctrine I shall sketch. It is ancient, and its elements are familiar, though they may seem strange when put together. One might call it the classic theory of human nature. All the great thinkers of Europe have contributed to its development, for it is the theoretical expression of that more basic insight into humanity no theory has managed to destroy. The sway of its teachings has been so unbroken that even the friends of the liberal metaphysic have furthered this view of human nature despite their own principles. We have only to grasp the implications of what is already known. 41

Regarding this unbroken tradition, Unger asserts that his own thought rests on three major assumptions: "There is a human nature ; the development and manifestation of this nature is the good ; and moral agreement may be a better or worse indication of what human nature

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is and demands. "42 As to the meaning of "nature," Unger once again seems to follow a premodem point of view: "When one views nature as the opposite to the willed, natural harmony means the capacity to reconcile the experience of rising above the circumstances of one's existence and recreating them through will with the experience of participation in an order of things that is universal and precedes human design. "43 Moreover, he uses not only the traditional language of prudence as the mediation of universals and particulars in action,44 but also avails himself of the Christian, or at the very least, biblical, notion that human nature is ordained not merely to altruism and respect for others, but to a participation in a divine love.45 On the other hand, even in Knowledge and Politics-the work in which he is most friendly to the classical tradition-Unger does not accept any recognizable doctrine of intelligible essences or of teleol­ ogy. He admits that his view of human nature could be construed as an effort to reintroduce an "essence of humanity. "46 But what he means by human nature is a self-conscious being who possesses selfhood as an "indeterminate fund of potentialities. "47 These potenti­ alities do not bespeak an actual telos, but rather remind us that human nature is "incomplete,"48 and that it is never fully known because it must be defined in relation to everything else. 49 In short, human nature is revealed partially by some combination of self-assertion and social constitution. So, despite his notion that natural harmony is a "partici­ pation in an order of things that is universal and precedes human design," Unger denies (without explaining the apparent contradiction) "the existence of moral law that inheres in the nature of things. "50 If we continue reading Unger's work, it becomes clear that Unger's complaint against liberalism is not its rejection of intelligible essences and teleology, but its failure to come to grips with the implications of that rejection. Thus, in The Critical Legal Studies Movement, he announces that his philosophy only takes liberalism to its logical conclusion: 5 1 namely, the ''power of the self eternally to transcend the limited imaginative and social worlds it constructs. "52 In other words, modernity had it right at the outset. The human self is self-transcen­ dent, and therefore has the capacity to make and remake social life as an artifact-an artifact that is simply an extension of the self's own power of self-revision. The problem with liberal modernity, then, is that it was arrested in its best insight and hedged its bets. Rather than following through with the insight of the revisability of self and society, liberalism sought to create irrevisable political and legal structures immune from conflict. Unger asserts that modern social thought recog-

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nized from the outset that society is made and imagined as a human artifact rather than being an expression of some underlying natural order.53 Hence, he only proposes to carry that insight "to the hilt. "54 In his book Passion: An Essay on Personality (1 984), Unger contin­ ues to insist that it is necessary to have a normative anthropology to undergird this existentialist superliberalism. At the outset of the book, he writes: "This book presents a speculative and prescriptive view of personality from the standpoint of a single but pervasive aspect of our experience: our desire to be accepted by one another and to become, through this acceptance, freer to reinvent ourselves. "55 As for the method of drawing prescriptions from a view of human nature, he says: ' 'The essay gambles on the idea that we can develop an account of our basic human identity that is neither trivial nor fatally beholden to the preconceptions of a particular culture. It even proceeds on the assumption that we can, to a limited extent, justify the practice of imputing normative consequences to substantive views of society and personality, though only after we have subjected the practice to major revisions. "56 The major revisions are these: (1) There is no unconditional context for the relations between the self and society; nor is there a definitive catalogue of social worlds;57 (2) we can break through all contexts and are free to make and remake society; 58 (3) therefore, whatever the natural, pervading, or noncontingent facets of experience, they cannot be regarded as causal or lawlike necessities. 59 With these qualifications in mind, Unger moves along to spell out the abiding contexts of human action. These consist in the twin conditions of the need for acceptance by others, and the fear of being submerged in group identities and social roles. 60 "We present to one another," he avers, "both an unlimited need and an unlimited danger, and the very resources by which we attempt to satisfy the former aggravate the latter.' ' 61 The goal of social theory is the search for revisable and nonconstraining modes of solidarity. The inherent danger of social life, he says, is that all forms of exchange and community "will be used to entrench the exercise of ongoing, unaccountable, and unreciprocal power. "62 A proper theory of human nature, then, reveals what Unger calls the "enabling conditions of self-assertion. "63 We need, at once, inter­ personal love and solidarity, as well as emancipation from the very social structures that coalesce around this need. We need, he says in Passion, a synthesis of the Christian-Romantic tradition of human love and homelessness in this world with the emancipatory ideologies of

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liberalism and socialism. These two traditions represent our "core experience of freedom.' ' 64 So, even as he appeals on the one hand to a normative anthropology (to the method of deriving prescriptions about conduct from descrip­ tions of the human condition),65 he wants to insist that: Once we see how conceptions of personality or society support social visions and existential projects, we can also understand what it means to credit these conceptions with normative force. The term normative judgment can only be a shorthand designation of a specific historical practice, not the name for an inherent, distinct, and unchanging human faculty.66

This is a typically Ungerian move. An anthropological basis for social theory is to be rescued from the premodern metaphysics, just as the liberal notion of the plasticity of the self is to be rescued from liberal law. But he constantly takes away with one hand what he gives with the other. What is natural, normative, or action-guiding never stays put. 67 Apparently, what is normative is natural, but not necessary; and what is action-guiding is not constraining in any lawlike fashion; and what is law is in some way a set of imaginative possibilites rather than anything directly codifiable.68

Conclusion What does all of this amount to? In answer to the question of whether Unger reduces law to politics and politics to power, we have to say no. To be sure, he is preoccupied with power. When he defines the formative context of habitual social life as the containment of conflict, he seems to have conceded the very modern standpoint that much of his work criticizes. Be that as it may, the tradition of modernity with which he most identifies is not the Hobbesian management of power, but the tradition of "revolutionary artists and thinkers." 69 Plastic selves need plastic law, and the theorists who have most clearly understood the plasticity of human nature are the artists. If this characterization is at all accurate, Unger cannot be accused of reduc­ ing politics to power. Rather, both politics and power seem to be reduced to art. Furthermore, Unger continues to deploy a rather traditional under­ standing of rationality: first, in the sense that he gives arguments for

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his positions; second, in the sense that he accuses others of holding contradictory and ideological views-ideology being a distortion of reason; and third, in the sense that he persistently says, throughout his writings, that value judgments can be made on the basis of proper understandings of human nature. Therefore, both in terms of the rationality implicit in his own writings, as well as in his explicit recommendations about how to take a correct point of view, Unger cannot be said to be a postmodernist who reduces everything to human willfulness and power.70 However, on the issue of whether Unger reduces law to politics, the answer must be yes. The crucial distinctions-or, in Unger's analysis, dichotomies-of liberal legal culture are to be dissolved: private-pub­ lic, neutral-willful, law-politics, principle-power. The categories must be "deliberately jumbled" and rendered more vulnerable to debate, to conflict, and to political deliberation. 7 1 The institutional and imagina­ tive contexts that we inhabit must be regarded as "up for grabs in history. " 72 Social roles and hierarchies must be disentrenched, zones of immunity destabilized. 73 The disenchantment with legislative poli­ tics has to be overcome.74 We should not be taken by surprise, then, that in False Necessity Unger is sympathetic to the ideal of the Chinese Cultural Revolution in the late 1960s. 75 A "context-challenging conflict in the midst of everyday social life," 76 Unger suggests that it submitted the en­ trenched hierarchies, "socialist legality," 77 vested interests, and cen­ tralizing elites to relentless criticism. Indeed, Unger's problem with the Cultural Revolution is that it did not succeed. Like Western liberalism itself, the problem is that the Cultural Revolution was too timid in following through on its best insights regarding the plasticity of power. We are not surprised, either, by the fact that Unger does not approve of the classical liberal technique of dividing government into three coordinate branches-an arrangement he calls "dangerous," and which "generates a stifling and perverse institutional logic. " 78 He generally approves of the activist judiciary, for its intervention into matters of social practice reveals that law as adjudication cannot remain neutral, impersonal, and apolitical. The activist court, in other words, has let the cat out of the bag: namely, that the distribution of functional competences (checks and balances) is too rigid, and in any case has proved unable to explain its own evolution into a welfare state. Unger recommends that a fourth branch of government be

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created-a branch whose function it would be to constantly transform social life. the power responsible for systematic interventions should be a branch apart, staffed and organized according to the principles most suitable to its overriding task . . . . They should have at their disposal the technical , financial , and human resources required by any effort to reorganize major institutions and to pursue the reconstructive effort over time . Such a branch of government must have a wide latitude for intervention. Its activities embrace, potentially , every aspect of social life and every function of all the other powers in the state . If the other powers could not resist and invade the jurisdiction of this corrective agency, it would become the overriding authority in the state. 79

Unger explains that this proposal only brings to fruition what liberal politics "to a considerable extent are already like. " 80 Indeed, he wants to retain not only som e immunity rights for individuals, but also an independent judiciary (removed from the pressures of political conflict).8 1 How the guarantee of individual rights under an indepen­ dent judiciary can be made to fit with a fourth branch of government, which is commissioned to undertake a transformative jumbling of social life, is not clear. Indeed, how these recommendations amount to anything more than a Robespierrean terror, and how they actually correct and complete the central insights of liberalism, is also less than clear. As one critic has put it, in False Necessity, after twelve years and seven books totaling 2,133 pages, Unger promises to "suggest an outline of a vision that needs to be worked out later.' ' 82 At this juncture we can say that Unger wants to distinguish his position from (1) the premodem theo­ rists (the notion that moral, legal, and political norms are rooted in a teleological conception of human nature), from (2) classical liberalism (the notion that the rule of law requires limits on the power of democratic politics to transform society), and (3) from the more radical elements of Critical Legal Studies (the notion that all limits on the transformative politics of empowered democracy are a mystification). 83 As we said at the outset in connection with the CLS movement, it is easier to say what Unger's philosophy is not, than what it stands for in any positive sense. Notes l . Roberto Unger, The Critical Legal Studies Movement (Cambridge, Mass. : Harvard University Press, 1983 ) , p. 4.

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2 . For a history o f the movement and its main players, see John Henry Schlegel, "Notes Toward an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies," Stanford Law Review 36 (1984) :39 1-4 1 1 . For a survey of its main ideas, see Raymond A. Bellotti, "Radical Politics and Nonfoundational Morality," International Philosophical Quarterly 29 (March 1989) :33-5 1 . The best overall assessment of the move­ ment is Andrew Altman's Critical Legal Studies: A Liberal Critique (Princeton, N.J.: Princeton University Press, 1990) . 3. Knowledge and Politics (New York: Free Press, 1 975). 4. CLS Movement, pp. 1-2. 5. CLS Movement, p. 2.

6. Critical Legal, p. 79.

7. CLS Movement, p. 2.

8. Duncan Kennedy, "Legal Education as Training for Hierarchy, " in The Politics of Law, Davis Kairys (ed.) (New York: Pantheon Books, 1990) , p. 47. 9. Law in Modern Society (New York: Free Press, 1976). 10. CLS Movement, pp. 2-3 .

1 1 . CLS Movement, p. 3 . 12. Roberto Unger, False Necessity: Anti-Necessitarian Social Theory in

the Service of Radical Democracy (New York: Cambridge University Press,

1987), p. 34. 1 3 . False Necessity, p. 35. 14. Knowledge and Politics , pp. 5-6. 15. Knowledge and Politics, p. 3. 16. See W illiam Ewald's " Unger Philosophy: A Critical Legal Study, " Yale Law Journal 97 (1988):740. 17. Knowledge and Politics , pp. 50, 97. 18. Knowledge and Politics, p. 180ff. 19. "The view implicit in the redefinition of the social ideal and the con­

structive program I have outlined comes closer to the existentialist position than to the Aristotelian one." CLS Movement, p. 105. 20. CLS Movement, p. 4 1 . 2 1 . Roberto Unger, Law in Modern Society (New York: Free Press, 1976) , p. 69. 22. Law in Modern Society, p. 68. 23 . Law in Modern Society, p. 84. 24. Law in Modern Society, p. 85 . 25. Law in Modern Society, p. 276, n. 32. 26. Law in Modern Society, p. 85 . 27. Law in Modern Society, p. 143. 28. Law in Modern Society, p. 168. 29. Joseph Raz has observed that, logically, the principle of respect should

only require that persons are treated "in accordance with sound moral princi­ ples. " Appeals to the respect due the self are entirely abstract and indetermi-

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nate with regard to which moral principles are sound . Additional premisses are needed if the appeal to respect for persons is to have a determinate moral basis . Joseph Raz , The Morality of Freedom (New York: Oxford University Press, 1 986) , p. 157. On this score , Raz is correct to note that the vague and abstract character of appeals to selfhood and respect "explains why it is invoked not as a claim for any specific benefit, but as an assertion of status. To say 'I have a right to have my interest taken into account' is like saying ' I too a m a person ;' " Morality of Freedom , p. 190. Ernst Bloch , too , has suggested that modern natural law theorists differ from social utopians because the intention of the natural law theorist is not directed toward happiness, but rather toward "dignity , toward human rights, toward juridical guarantees of human security or freedom as categories of human pride . . . natural law wants to do away with all that stands in the way of autonomy and its eunomia . " Ernst Bloch , Natural Law and Human Dignity (Cambridge , Mass . : MIT University Press, 1986) , p. 205 [emphasis in original]. 30. A questing self, it might be said, is not looking for merely procedural constraints, but rather for substantive relations . 3 1 . Knowledge and Politics, p. 32. 32. Knowledge and Politics, p. 3 1 . Of course, what Unger has in mind is Nominalism, which can hardly be blamed on liberalism. And I should remind the reader that I am presenting here an extremely condensed picture of Unger's treatment of modem philosophy. Although Unger himself examines modem epistemologies in considerable detail in Knowledge and Politics, it is nevertheless true to say that despite impressive charting of the various antimonies and contradictions in modern thought (Knowledge and Politics , p. 1 38)-antimonies that, he claims, reveal the thorough-going incoherence of liberalism-Unger tends to portray modem philosophy in terms of a composite picture that may not be true of any particular modern philosopher. In short, Unger does not adequately distin­ guish among m aj or theorists of modernity . How something like the fact-value dichotomy, for example, is played out in Hobbes rather than Locke , or Descartes , or Kant , or any number of important modem philosophers is not spelled out. 33. Law in Modern Society, p. 176. 34. Knowledge and Politics, pp. 42ff. 35. Knowledge and Politics, p. 45 . 36. Knowledge and Politics, p. 7 1 . 37. Knowledge and Politics, p .�7. 38. Unless, of course , the means are regarded as ends. One way to make this move is to argue , in a Kantian manner, that free and self-determining agents are ends in themselves. Yet another way to make the move is to contend , as do most modem rights theorists , that there are some basic goods that are so necessary to human autonomy that all rational agents must want them regardless of whatever else they might want in the way of ultimate ends.

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I believe that Andrew Altman is correct when he argues that Unger's analysis of the modern rejection of intelligible essences is not entirely accurate. What modernity rejects is not truth, or even nature, but rather technology. Critical Legal Studies (Princeton: Princeton University Press, 1990), p. 68. 39. Law in Modern Society, pp. 180ff. 40. Knowledge and Politics, p. 48. 41. Knowledge and Politics, pp. 198ff. 42. Knowledge and Politics, p. 245. 43. Knowledge and Politics, p. 205. 44. Knowledge and Politics, p. 259. 45. Knowledge and Politics, p. 235. He concludes the book with the sentence: "Speak, God." Knowledge and Politics, p. 295. 46. Knowledge and Politics, p. 245. 47. Knowledge and Politics, p. 240. 48. Knowledge and Politics, p. 235. 49. Knowledge and Politics, p. 203. 50. Knowledge and Politics, p. 240. 51. CLS Movement, p. 24. 52. CLS Movement, p. 26. 53. Roberto Unger, Social Theory : Its Situation and Its Task (New York: Cambridge University Press, 1987), p. 1. 54. Social Theory, p. 1. 55. Roberto Unger, Passion: An Essay on Personality (New York: Free Press, 1984), p. vii. 56. Passion, p. 21. 57. Passion, pp. 7-9. 58. Passion, pp. 9-10. 59. False Necessity, p. 4. 60. False Necessity, p. 20. 61. False Necessity, p. 20. 62. False Necessity, p. 96. 63. False Necessity, p. 74. 64. False Necessity , p. 74. One suspects that what he has in mind is something along the lines of base communities-a sort of Sandinista church. 65. ''The whole course of modern moral and political philosophy can best be understood as an effort not to base prescriptive conclusions upon substantive conceptions of personality and society. The distinct ways that philosophers have tried to do this define the differences among the leading philosophical schools. At times the favored technique of avoidance has been the attempt to discover an inferential method that can teach us how to combine the prefer­ ences, or how to generalize from the intuitions, of different individuals when neither the intuitions nor the preferences are thought to compose a distinct image of human nature. At other times the escape route has involved a search for the constraints upon action that are somehow inherent in the moral point

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of view, defined as the commitment to consider people as free, responsible, and equal agents, subject to maxims that can be impersonally justified and universally applied . . . . But the results of these alternatives to the classical style have been consistently disappointing . . . . They achieve determinacy only to the extent that they continue, covertly, to invoke a substantive image of human nature. " Passion, p. 43. 66. Passion, p. 48. 67. As he says in one place, "At any given time we are largely the sum of our fundamental practices. But we are also the permanent possibility of revising them. " Passion , p . 43. 68 . In Knowledge and Politics Unger argued for a notion of organic or natural solidarity. In the later books, however, the "natural" is not a form of community, but rather a tension in the nature of the individual, which is expressed in the social order. Interestingly, then, Unger would seem to accept the most fundamental move of Enlightenment theorists such as Locke: namely, that we can speak of the nature of the person, but that society has no such nature, and is to be regarded as something imagined or posited by individuals. Mark Tushnet has said, in a vein similar to Unger, that: " [T]he social world is entirely constructed. Every time one thinks about it, the social world dissolves into a set of choices that one has made." "An Essay of Rights," Texas Law Review 62 (1984): 1402. Unger, however, wants to say that there is an intelligi­ ble order and structure to individual agents. Therefore, the construction of social reality is not merely a "set of choices," but rather emerges from the nature of man. Insofar as Unger maintains this thesis, he stops short of the most radical view propounded by certain elements in the Critical Legal Studies Movement (CLS). But whether his notion of individual nature has any normative clout is exceedingly unclear ; and so long as it is unclear, we can legitimately doubt whether there is any difference between Unger and Tushnet. 69. Passion, p. 23. 70. For an analysis of how Unger can be distinguished from other CLS thinkers in this regard, see Bellotti, "Radical Politics and Non-foundational Morality. " 71. CLS Movement, p. 23. 72. False Necessity, p. 1. 73. False Necessity, p. 9. 74. CLS Movement, p. 9. 75. False Necessity, pp. 241-46. 76. False Necessity, p. 242. 77. False Necessity, p. 244. 78 . False Necessity, p. 449. 79. False Necessity, p. 453. 80. False Necessity, p. 455 . 81. False Necessity, p. 452. 82. False Necessity , p. 560. See Ewald, " Unger Philosophy, " p. 740. 83. Altman, Critical Legal Studies, p. 176.

Chapter 8

Inescapably a Liberal: Richard Rorty as Social Theorist

Gerard V. Bradley Richard Rorty's Philosophy and the Mirror of Nature 1 was probably the most significant event in American philosophy since John Rawls's A Theory of Justice came out in 1971. Acclaimed for its breadth of learning and its charming prose, reading Philosophy and the Mirror of Nature can nevertheless be unnerving, as unnerving as intellectual vertigo. One commentator laments that "Rorty disturbs and astonishes like the spring weather. His pages mount like cumulus clouds in our intellectual sky, saturated by the past and promising (ambiguously) either to irrigate or inundate the present fields of our culture. Almost everybody complains about him, but can anything be done? " 2 Why all the fuss? Those unfamiliar with the book may assume that Rorty makes a powerful case for the professed aim of Philosophy and the Mirror of Nature: "to undermine the reader's confidence in 'the mind' as something about which one should have a philosophical view, in 'knowledge' as something about which there ought to 'be a theory' and which has 'foundations', and in 'philosophy' as it has been conceived by Kant. "3 Rorty wants us to set aside-permanently and without anointing a successor discipline-the epistemology-centered philosophy of the past four centuries. Accepting his invitation means changing "our image of humanity, our concept of rationality, and abandonment of epistemic objectivity.''4 No wonder Bernard Williams says that "it matters to what extent [Rorty] is right. "5 Philosophy and the Mirror of Nature said almost nothing about social theory. In the mid- 1980s Rorty produced a series of articles and lectures on the topic, many of them collected in his 1989 book Contingency, Irony and Solidarity. 6 These efforts established Rorty as a liberal-he said so repeatedly-with a superficial resemblance to recent Rawls, the Rawls whose liberalism is grounded not in the 135

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universalistic plane of A Theory of Justice but in a deep historical particularism. 7 Despite their recent vintage, these writings have already figured prominently in accounts of "legal pragmatism" by various academic authors. In my view, Rorty is also Laurence Tribe's philosophical mentor, the shadow philosopher of the second edition of Tribe's American Constitutional Law.8 Rorty's social theory is one step re­ moved (ahead, actually) from the engine powering recent constitutional law: the right to autonomous control over the development and expres­ sion of one's intellect and personality-the sovereign self, commanding a "facilitative" society. Most broadly, Rorty's "pragmatism"-his antifoundationalist critique of reason and disinterested thought-is an effective apology for legal realism of the left (Critical Legal Studies) and of the right (Law and Economics), and stands athwart many attempts to rebut them both. This chapter endeavors to describe in detail Rorty's "social theory," his term of choice for an enquiry that, for most readers, comprises ethics, political theory, legal philosophy, and the social sciences. Rorty's "social theory" turns out to be only superficially Rawlsian. It is really a unique, Rortyan construction that is just as arresting as Philosophy and the Mirror of Nature.

Rorty's Philosophy The target of Philosophy and the Mirror of Nature is Philosophy (with a capital "P"), the foundational discipline that investigates knowing as such, and therefore can adjudicate among all other claims-religious, political, artistic-to "know." Rorty takes naive realism as the linch­ pin of this discipline. "To know [the tradition held, according to Rorty] is to represent accurately what is outside the mind. " 9 Truth consists of correspondence of the "picture" within the "knowing" subject's mind to a mind-independent reality outside it. Bernard Lonergan called this realism a matter of "taking a good look," the spectator theory of knowledge. The philosophical heroes of Philosophy and the Mirror of Nature are an unlikely trio: Ludwig Wittgenstein, Martin Heidegger, and John Dewey. According to Rorty, each was dismayed by the professional philosophy about him, and each initially sought to replace a failing foundation with a new, sturdier one. Of the ' ' late' ' work of Heidegger, Dewey, and Wittgenstein, Rorty observes,

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[e]ach . . . came to see his earlier effort as self-deceptive, as an attempt to retain a certain conception of philosophy after the notions needed to flesh out that conception had been discarded. Each . . . broke free of the Kantian conception of philosophy as foundational, and spent his time warning us against those very temptations to which he himself had once succumbed. Thus their later work is therapeutic rather than constructive, edifying rather than systematic, designed to make the reader question his own motives for philosophizing . . . . io

Rorty's own presentation is self-consciously modeled on the trio's strategies. "They set aside epistemology and metaphysics as possible disciplines." "Set aside" rather than "argue against" because "they do not devote themselves to discovering false propositions or bad arguments in the works of their predecessors (though they occasionally do that too). Rather, they glimpse the possibility of a form of intellec­ tual life in which the vocabulary of philosophical reflection inherited from the seventeenth century would seem as pointless as the thir­ teenth-century philosophical vocabulary had seemed to the Enlight­ enment." 1 1 A central support of Philosophy and the Mirror of Nature's "argu­ ment" is "the linguistic tum" (not coincidentally, the title of Rorty's first book). Rorty, closely following Wittgenstein here, says that "truth" and "objectivity" are entirely intralinguistic affairs. Rorty means that such notions are useful only within a particular tradition of discourse and are otherwise unintelligible. Truth is a property of sentences and is a matter of agreement with the beliefs that serve as the evidential rules of the language game and not with some extramen­ tal reality. Truth is "what is good in the way of belief," 1 2 another name for the familiar and the conventional, for the overlapping parts of vocabulariesY This is "normal discourse." "Abnormal discourse" is the unfamiliar, the strange, the uncanny. People we call "mad" are simply folks we don't understand because their vocabularies are pecu­ liar. But the distinction "does not coincide with any distinction of subject matter (for example, nature versus history, or facts versus values), method (for example, objectivation versus reflection), faculty (for example, reason versus imagination), or any of the other distinc­ tions which systematic philosophy has used to make the sense of the world consist in the objective truth about some previously unnoticed portion or feature of the world." 14 This complex of ideas he calls "epistemological behaviorism." Because Rorty capitalizes so powerfully on the "linguistic tum," let

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us carefully note what he means by it. He is not saying, with virtually all religious thinkers, that reality, especially transcendent reality (God, the supernatural) ultimately confounds and escapes our concepts and description. Rorty is no mystic either. He does not hold that the way to apprehend and attune oneself to Being is a via negativa, to rid oneself of language. Rorty does not join two of his heroes-Hans Gadamer and (in my view but perhaps not Rorty's) Heidegger-both of whom were convinced that although traditional philosophy obscured Being, ontology survived the linguistic tum. Rorty opines that the world does not speak. Only we do. Heidegger, for instance, thought that Being spoke to us through language. Rorty is definitely a historicist but he is stalking bigger game than the usual prey of historicists, which is the "ahistorical" or Archimed­ ean point of observation, which is exempt from the situatedness of human thought. We are all historicists now, says Rorty; we all concede that thought is "thunk" by finite, historically situated human beings. But neither Rorty's "historicism" nor his "nominalism" (roughly, that only individual and not abstract or general entities exist) without additional premisses, explain Philosophy and the Mirror of Nature or its abrupt linguistic turn. There are some foundationalists who are nearly historicists; Thomas Hobbes, Martin Luther, and William of Ockham were all nominalists, and none ended up where Rorty has. One criticism of Rorty is that he disregards more differentiated, nuanced accounts of the relation between human understanding and reality. This oversight (or strategy) permits him to crown his "episte­ mology" by default.15 Rorty's "linguistic turn" collapses the related but separate inquiries of alethiology (theory of the nature of truth) and ontology (theory of what there is) into "epistemology" (roughly, the study of human knowing). Charles Taylor puts the criticism nicely: Rorty is still operating within the tradition he would escape, precisely because Rorty's perception of the alternatives is commanded by the tradition. 16 In any event Rorty builds upon his displacement of the correspon­ dence theory. He moves on to claim that vocabularies are ultimately "incommensurable." They cannot be reduced to an Esperanto (a universal language) or to various expressions of universal experiences. By "incommensurable" Rorty means that disputes about what there is cannot be arbitrated by criteria drawn from outside the warring vocabularies. Rorty does not "argue" for that position, so much as he (as Taylor suggests) presumes it follows from his demolition work. But Taylor rightly questions Rorty's suggestion that nonarbitrability is

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shown by the perpetual inconclusiveness of debates about some "weighty matters." 1 7 Lack of consensus is an observation about people. From it no conclusion of invincible disagreement may be drawn. Besides, some issues-such as the injustice of racism-have been settled by rational agreement. 1 8

Rorty's Laundry List of Liberalism We can more directly approach Rorty's social theory by recounting some virtues of the linguistic tum. It connected knowing and doing by bringing philosophy into contact with the everyday realities of life. That is, it forced philosophical speculation into an arena defined by a particular culture because language was so defined and limited. The historicist touch prevents "philosophers" from solving "eternal" problems-according to Rorty, yesteryear's problems-irrelevant to today's issues. Also, the linguistic tum made truth an intrinsically public affair, the outcome of an ongoing conversation. For these reasons, we may plausibly view Wittgenstein's efforts, and Dewey's, as communitarian in effect and intention. Rorty capitalizes upon this plausibility. His articles explicitly oppose "Solidarity" to "Objectivity," "Democracy" to "Philosophy." It seems that Rorty's social theory is characterized by an overriding commitment to communitarianism or social solidarity. Were Rorty to follow this trajectory, he might well have ended up (in jurisprudence) like Dworkin, committed to the deep conventionalism displayed in Law 's Empire, a kind of constitutional law by common-law method. This piles Burke upon Wittgenstein: the turn to linguistic practices accompanied by a deep sociality. But Rorty is no Burke. He takes Wittgenstein and adds the fervid individualism of the libertarian Rob­ ert Nozick. Rorty's individualism is perhaps the efficient cause of his liberalism. But whether as simple "liberal," as "postmodernist bourgeois lib­ eral," as "tragic liberal," or as "liberal ironist" (all his self-descrip­ tions), Rorty says very little about the content of his liberalism. What he does say is quite casual. In the introduction to Contingency, Irony and Solidarity Rorty lays down the "harm" and (something like Rawls's) difference principles as foundations for his own political opining. 19 At the same time he takes Judith Sklar's sine qua non-avoid cruelty-as the linchpin of liberalism.20 On another occasion Rorty adopted Rawls's suggestion that liberalism be grounded in cultural

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givens like religious tolerance and the wrongness of slavery. 2 1 But Rorty has never attempted to deduce anything from, or even to elaborate the meaning of, his condemnation of slavery. And he wants to expand "religious tolerance" so that virtually all meaning is privat­ ized in the way religion has been. Throughout the Rortyean opus, one nevertheless encounters laun­ dry lists of liberalism's ingredients. In no particular order and virtually without commentary, Rorty champions "free press," "free speech," "free universities," "free elections," market economies, interest group politics, "free judiciary," democracy. The list is not exhaustive. None is thought problematic, singly or in combination. Rorty evinces no misgivings about the risks to democracy of "free speech" and "free press" in "market economies" with media monopolies. He is blind to the tensions between "democracy" and "free judiciary" that Dworkin, among others, sees. Many liberals array the judiciary-the principled, apolitical protector of individual rights-against an intrinsi­ cally intolerant majority pursuing mere "collective interests." Rorty never explores issues such as abortion, capital punishment, affirmative action, drug abuse, feminism, pornography, crime. He is not interested in jurisprudence or distributive justice. He does not mention the Con­ stitution. Questioning Liberalism What's going on here? In an inconspicuous footnote Rorty bares his "epistemology" of political discourse and suggests why he is uninterested in liberalism's menu. He abjures "rationality" in politics because he thinks it never supplies reasons for action. "[W]e figure out what practices to adopt first and then expect our philosophers to adjust the definition of 'human' or 'rational' to suit. "22 The footnote supports the textual proposition (no surprise after Philosophy and the Mirror of Nature) that although "reason" may have been useful in creating democratic societies, "it can now be dispensed with-and should be dispensed with, in order to help bring the liberal utopia [he favors] into existence. "23 The original citation continues: [W]e know that we should not kill a fellow human, except in our official capacity as soldier, hangman, abortionist or the like. [Query: does Rorty presume there is one "liberal" answer to all these moral questions?]. So are those whom we do kill in those capacities-the armies of the invading

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tyrant, the serial murderer, the fetus-not human? Well, in a sense, yes and, in a sense, no-but defining the relevant senses is an after-the-fact, largely scholastic exercise. We deliberate about the justice of the War, or the rightness of capital punishment or of abortion, first, and worry later about the "status" of the invader or the murderer or the fetus ! W hen we try to do the opposite, we find that our philosophers offer no sufficient conditions for humanity or rationality less controversial than the original practical questions . . . . The large general principles wait patiently for the outcome and then the crucial term which they contain or redefined to accord with that outcome.24

Neither "reason" nor any particular language game can tell us how to think-much less can they affect our actions-in the liberal polity. As I apprehend Rorty, he is saying basically this: Reason cannot explain why we are or should remain liberals, any more than it can tell us what to think about killing, any more than it can persuade commu­ nists or fascists to become liberals. Persons are born liberals-i.e., at the dawn of consciousness they find themselves in the liberal language game. Beyond the linguistic border is either helpless passivity or resort to force. This arresting claim explains Rorty's review of Roberto Unger' s recent trilogy in social theory. As a "tragic" North American liberal-one whose institutions are in extremis-Rorty can only ob­ serve Unger's vision of politics and hope that, perhaps, his great grandchildren will find themselves in its grips. But for now, that Unger is a Brazilian and Rorty is an American takes the discussion as far as it can be taken. "Our only excuse is, once again, to appeal to national differences-to say in effect, 'Maybe it's easier in Brazil, but it's pretty hard here' . . . . To imagine great things is to imagine a great future for a particular community. . . . In the modern world, this usually means one's nation. " 25 Rorty doubts whether arguments play much of a role in political changes. But arguments are not just impotent. They are destructive. Their premisses, phrased in familiar vocabularies, "get in the way of attempts to create an unfamiliar vocabulary, a new lingua franca for those trying to transform what they see around them. " 26 Language is the condition of the real, so that revolutionaries propose new vocabula­ ries. "[W]e humans are lords of possibility as well as actuality-for possibility is a function of a descriptive vocabulary, and that vocabu­ lary is as much up for political grabs as anything else. " 27 Revolutions, it seems for Rorty, are gigantic exercises of some noncognitive faculty. Some are dictated over the barrel of a gun. But others-probably most-are spasms: an ecstatic coupling between society and a vocabu-

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lary/persona, a delirious mass embrace. An interphenomenal "zap." Unger's thought seems to have enticed Rorty, but not seduced him. And he doubts it will seduce us. In his 1 987 "Thugs & Theorists," Rorty regretted previously de­ scribing himself as a "post-modernist bourgeois liberal. "28 Obviously disturbed by critics (like his friend Richard Bernstein) who found his articles "frivolous in tone, pointlessly extreme, and paradoxical in formulation, and likely to give aid and comfort to the wrong people (and, in particular, to neoconservatives),"29 Rorty endeavored to re­ phrase his position. Now a "social democrat," he attempted to satisfy his critics by calling "the shadowy millionaires" manipulating Reagan "thugs," just like the KGB, the Boers, and the Ayatollah. The difficulty is that these harsh judgments were no less flip and insouciant than the prior formulations they were supposed to remedy. In my view, that is because, for Rorty, insouciance is the correct approach to politics. Politics are supposed to be flaccid, frivolous, paradoxical, complacent, inert. That's the point, and the only kind of politics Rorty can hold, given what else he holds. "Liberal disclosure should remain untheoretical and simple-minded (emphasis mine). 30 Can we say anything about "social theory," other than description? Rorty thinks that ' 'solidarity''-for him, the problem of politics-can be brought to some level of consciousness as a question. Rorty retreats therefore not to a linguistic Esperanto but to an experiential one: the capacity to feel pain, which we share not only with each other but with the beasts. We are Sklarian liberals. 31 How should this work ideally? According to Rorty, by reading. The more we read other vocabularies the more tolerant and the less cruel we will be. Here is a glimmer of synthesis of public and private in the ideal world: the perpetually redescribing-itself-self is the model citizen. But, as Rorty says in "Thugs and Theorists," the ideal has nothing to do with here and now. Here we need add one piece of laundry purposely left off prior lists: procedural justice. It is Rorty's only account of justice at all. As Jo Burrows writes, Rorty "thinks that the identification of political problems is a fairly straightforward, empirical exercise, that it is means rather than ends which are generally in dispute. "3 2 Borrowing from the like thinking of Gordon Graham, Burrows phrases Rorty's view this way: We can conduct political argument on the grounds of what will or will not be successful. . . . Political action is possible without recourse to grand

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conceptions of history and society. . . . The pragmatist operates with no conception of history or vision of the future. . . . The pragmatist policy is neither short term nor long term. It is simply needed for the moment and just how long that moment is . . . is something contingent circumstances will determine.33

This might be a prudential move. That is, Rorty does not want a "thick" conceptual description of politics-even of our liberalism­ because it will tend to enlist or entrench upon our private vocabula­ ries. 34 Its writ-like Unger's-might run into the imagination. "Thin" political discourse would ensure maximum freedom in the private sphere. That might be true, but is not the important point. The "foundation" is this: political discourse is inert for the same reason that the perfection of life is a task for the imagination. But that takes us to the depths of Rorty's entire scholarly project. Which is to say, Rorty's "social theory" is the product of, and only comprehensible when seen with, his existentialism. The Political Self Here is a passage from a short New Republic review of Jean-Paul Sartre's wartime diaries, which cuts to the core of Rorty's concern. The diaries argue [the] "existentialist" thesis that human life is "a useless passion" : the attempt to be both capable of objective moral knowledge and radically free, to be subject to an unyielding code although fully aware that it is only one of many, equally plausible, codes. Sartre thought of this passion as the inevitable and doomed effort to be simultaneously hard and soft, completely committed and completely open to alternative possibilities, simultaneously slick and porous. He saw philosophy as the paradigmatic expression of this self-deceptive attempt to have everything both ways: the attempt to pull one's decisions up by their bootstraps, so that they might be absolutely obligatory (expressing "the will of God," or "human nature, " or "the moral law") and also be the product of perfect, rational freedom.

• Sartre knew that such fantasies, [about the rugged American individual­ ist] as well as Marxist doctrines about "the march of history," were just further attempts to synthesize necessity and freedom, to be both perfectly

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hard and perfectly soft. But he was no more immune from this useless passion than are any of the rest of us. 35 Now we can see that for Rorty "politics" is the realm of necessity and determinism, controlled by forces that we do not control, even as we know it is we that are the stuff of politics. Rorty has effectively severed political behavior from the realm of autonomous action. Poli­ tics is like nature, a mechanized operation, a Darwinian struggle of opposing forces whose outcome can only be observed, post hoc, by "participants," some of whom feel a need to discourse about it. Hence, we should take deadly seriously Rorty's conception of the political "self," from "Post Modernist Bourgeois Liberalism: The crucial move . . . is to think of the moral self . . . as a network of beliefs, desires, and emotions with nothing behind it-no substrate behind the attributes . For purposes of moral and political deliberation and conversation [that is, for purpose of interpersonal life] a person just is that network, as for purposes of ballistics she is a point-mass, or for the purposes of chemistry a linkage of molecules. She is a network that is constantly remeaning itself . . . in the hit-or-miss way in which cells readjust themselves to meet the pressures of the environment. 36 No wonder Rorty can reduce "social theory" to the descriptive discourses of sociology and political history. No wonder too that we shouldn't care whether Heidegger was a thug who, like Nietzsche, was a sordid piece of work. 37 Of course Heidegger was a thug-a Nazi-but he was no more responsible for his politics than we are for ours. Was it his fault to have come of age in Hitler's Germany? Presumably when the final scientific book is written, we will comprehend fully the causes of Heidegger's thuggery just as we will comprehend the causes of Mother Teresa's charity, just as we will comprehend the causes of our postmodernist bourgeois liberalism. One should assume, writes Rorty, that Heidegger "was as mixed up as the rest of us. " Our job is not to fret or rush to judgment about Heidegger, but to read Heidegger as Heidegger "would not have wished to be read: in a cool hour, with curiosity, and an open tolerant mind. " 38 Otherwise, we risk being Heidegger, someone who, like Hitler, took philosophy and himself se­ riously.

Disenchanted Politics Rorty grants that his chilly, Sartrean view of politics disenchants the world. 39 And his ultimate defense of "frivolous" social theory is that

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it, too, helps along the disenchantment.40 To those (like the early Unger and Alasdair MacIntyre) who would re-enchant it, Rorty poses the decisive question: "Whether disenchantment has, on balance, done us more harm than good." 41 With little reticence Rorty joins Dewey in coughing up the coins: "communal and public disenchant­ ment is the price we pay for individual and private spiritual liber­ ation.' ' 42 One might say that Rorty offers a pragmatic apology for disen­ chanted politics. This would be an exaggeration of a standard move in liberal legal theory: not that there is no God, but better for religious freedom if we all act in public life as if there is not. Rorty's world is disenchanted. That is why we should think of it that way. Our only hope is to act, in the tiny cubicle of the imagination where it is possible to do so, to fantasize as if it were not. In Philosop hy and the Mirror of Nature, Rorty asserted the fol­ lowing: Every speech, thought, theory, poem, composition, and philosophy will turn out to be completely predictable in purely naturalistic terms. Some atoms-and-the-void account of micro-processes within individual human beings will permit the prediction of every sound or inscription which will ever be uttered. There are no ghosts. 43

Were we enthralled by scientism, there would be no hope. But we are not, at least after Philosophy and the Mirror of Nature. We are able to see ourselves as "strong poets" precisely by stripping science of its privileged epistemological position. But Rorty, though no scien­ tist, is a materialist. So, more exactly, we need to dethrone scientistic discourse, out of which the Enlightment threatened to fashion a science of human goodness, truth, and beauty, to license the poets.

One's Own Vocabulary Freud is the necessary link between Rorty's profound materialism and his guarded humanism. Lengthy quotation is unavoidable: It has often seemed necessary to choose between Kant and Nietzsche, to make up one's mind-at least to that extent-about the point of being human. But Freud gives us a way of looking at human beings which helps us evade the choice. After reading Freud we shall see neither Bloom's strong poet nor Kant's dutiful fulfiller of universal obligations as para-

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digmatic. For Freud himself eschewed the very idea of a paradigm human being. He does not see humanity as a natural kind with an intrinsic set of powers to be developed or left undeveloped. By breaking with both Kant's residual Platonism and Nietzsche's inverted Platonism, he lets us see both Nietzsche's superman and Kant's common moral consciousness as exemplifying two out of many forms of adaptation, two out of many strategies for coping with the contingencies of one's upbringing, of coming to terms with a blind impress. There is much to be said for both. Each has advantages and disadvantages. Decent people are often rather dull. Great wits are sure to madness near allied. Freud stands in awe before the poet, but describes him as infantile. He is bored by the merely moral man, but describes him as mature. He does not enthuse over either, nor does he ask us to choose between them. He does not think we have a faculty which can make such choices.

But there is a difference between Nietzsche and Freud which my description of Freud's view of the moral man as decent but dull does not capture. Freud shows us that if we look inside the bien-pensant conform­ ist, if we get him on the couch, we will find that he was only dull on the surface. For Freud, nobody is dull through and through, for there is no such thing as a dull unconscious. What makes Freud more useful and plausible than Nietzsche is that he does not relegate the vast majority of humanity to the status of dying animals. For Freud's account of uncon­ scious fantasy shows us how to see every human life as a poem-or, more exactly, every human life not so racked by pain as to be unable to learn a language nor so immersed in toil as to have no leisure in which to generate a self-description . . . . What Freud takes to be shared by all of us relatively leisured language-users-all of us who have the equipment and the time for fantasy-is a faculty for creating metaphors. When a metaphor is created it does not express something which previously existed, although, of course, it is caused by something that previously existed. For Freud, this cause is not the recollection of another world but rather some particular obsession-generating cathexis of some particular person or object of word early in life. By seeing every human being as consciously or unconsciously acting out an idiosyncratic fantasy, we can see the distinctly human, as opposed to animal, portion of each human life as the use for symbolic purposes of every particular person, object, situation, event, and word encountered in later life . 44 This Wittgensteinian attitude, developed by [Gilbert] Ryle and [Daniel] Dennett for minds and by [Donald] Davidson for languages, naturalizes mind and language by making all questions about the relation of either to the rest of universe causal questions, as opposed to questions about adequacy of representation or expression. 45

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The effect is to disrupt the connection between intention and deter­ minism, so that the seat of subjectivity might be that faculty with which we play language games-the imagination, awash in a sea of Derridaen text toys. Not the ghost in the machine-as Rorty says, there is no ghost-but a machine programmed with a capacity for distraction so edifying that it can induce forgetfulness of the wheels turning within. The summum bonum of an individual human life is a "final vocabulary," not in the sense of a best or consummate or "true" language but a vocabulary all one's own. 46 Rorty's social hero is the "strong poet." Few persons ever so perfect themselves, but a few (Proust, Derrida) have. "Thus I willed out," according to Rorty, is the eulogy we ought covet.47

Conclusion From these foundations, we can work outward and reappropriate yet another of Rorty's expressions for his social theory. That theory is "bourgeois" precisely because peace, wealth, and "the standard bourgeois freedoms of the leisured class" are preconditions for distrac­ tion. "Equality of opportunity" is the password: the "social glue" holding together Rorty's ideal society is "our" conviction to let "everybody have a chance at self-creation to the best of his or her abilities. " 48 We can all start together in the race to be Derrida. The masters would be the intellectuals, the "ironist" class. The great mass of regular folks would be "commonsensically nominalist and historicist," contented not by platitudes about God or the universe, but by the intellectuals' insistence that there are no viable concrete alternatives to liberalism. 49 Rorty courageously confesses that being Derrida holds no appeal and makes no sense to the man on the street, who might well prefer the sorts of things Orwell wanted: getting more air down into the mine shafts. "The ironist is the typical modem intellectual. The only societies which give her the freedom to articulate her alienation are liberal ones." So, how do ironists pay their way?50 Rorty hopes there is some service rendered by spinning out possible redescriptions, which might sensitize persons to the suffering and humiliation of those around them. But that is little more than vain hope. It is so little that Rorty is obliged to conclude that "ironist" philosophy has not done, and will not do, much for freedom and equality. " 5 1 They are "private philosophers-philosophers concerned to intensify the irony of the

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nominalist and the historicist. Their work is ill-suited to public pur­ poses, of no use to liberals qua liberals. " 52

•

•

•

There is not much to say after a "social theorist" privatizes his work.

Notes I. Philosophy and the Mirror of Nature (Princeton, N.J.: Princeton Univer­ sity Press, 1979). 2. T. Jackson, "The Theory and Practice of Discomfort: Richard Rorty and Pragmatism," Thomist 51 (1987), p.270. 3. Philosophy and the Mirror of Nature, p. 7. The only comparably arresting claim I can recall is the penultimate sentence of Harold Berman's Law and Revolution (Cambridge, Mass. : Harvard University Press, 1983), p. 558 : ' ' W ithout the Last Judgment and the fear of purgatory, the Western legal tradition could never have come into being.' ' Berman wonders how long our institutions can survive without the deep spiritual foundations we long ago undermined, because we have just about consumed the last of our inherited moral capital. Berman seeks a new ''integrative' ' jurisprudence-synthesizing historicist, positivist, and natural law strands-to ground out institutions anew. Rorty is no jurisprude, and only lately a social theorist. Still, he bemoans not the demise of our institution's theological (and metaphysical and philosophical) foundations. They are otiose illusions, however useful at one time. 4. Baynes et al. (eds.), After Philosophy (Cambridge, Mass.: MIT Press, 1987), p. 221. 5. B. W illiams, "Auto-da-Fe: Consequences of Pragmatism, " in A. Mala­ chowski, Reading Rorty (Cambridge, Mass.: Basil Blackwell, 1990), pp. 26-27. 6. Contingency, Irony, and Solidarity (New York: Cambridge University Press, 1989). 7. See for example, J. Rawls, "Justice and Fairness: Political not Meta­ physical, " Philosophy & Public Affairs 14 (1985) :225; J. Rawls, "The Domain of the Political and Overlapping Consensus" New York University Law Review 64 (1989):233. 8. Laurence Tribe, American Constitutional Law 2nd ed. (Mineola, N.Y. : Foundation Press, 1989). 9. Philosophy and the Mirror of Nature, p. 3. 10. Philosophy and the Mirror ofNature, pp. 5-6. 11. Philosophy and the Mirror of Nature, p. 162. 12. Philosophy and the Mirror of Nature, p. 162. 13. See Philosophy and the Mirror of Nature, passim, for various formula­ tions of Rorty' s invincibly conventionalist account of truth.

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14. Philosophy and the Mirror of Nature, p. 387. 15. For example, Rorty has never considered Insight (London: Longmans, 1958), Bernard Lonergan's monumental effort to identify an invariant stratum

of human knowing, beyond epistemology, in cognitive theory. (I have looked in vain for any reference to Lonergan in his writings) . Rorty's pragmatism­ truth is what works-implicitly denies Lonergan's project, a project that presupposes an activity of "pure" knowing, the erotic quest of the mind for knowledge. 16. C. Taylor, "Rorty in the Epistemological Tradition, " in Reading Rorty

p. 264. 17. Reading Rorty , p. 262. 18. Reading Rorty , p. 262. 19. Contingency , ch. 14. 20. Contingency, ch. 15. 21. Rorty, "The Priority of Democracy to Philosophy," in Reading Rorty , p. 284. 22. Contingency, p. 194, n. 6. 23. Contingency, p. 194. 24. Contingency, p. 1 94, n. 6. 25. R. Rorty, " Unger, Castoriadis, and the Romance of a National Future, " Northwestern Law Review 82 ( 1988):335, 343 . 26. " Unger," p. 339. 27. " Unger," p. 344. 28. R. Rorty, "Thugs and Theorists: A Reply to Bernstein, " Political Theory 15 (1987):564. 29. "Thugs and Theorists," p. 564. 30. Contingency , p. 1 2 1 . 3 1 . See Contingency, pp. 141-198. 32. J. Burrows, "Conversational Politics: Rorty's Pragmatistist Apology for Liberalism,'' in Reading Rorty , pp. 322, 330. 33. "Conversational Politics," p. 330. 34. See J. Rawls, A Theory of Justice (Cambridge, Mass. : Harvard Univer­ sity Press, 1971). 35. R. Rorty, "Feeling His Way" (review of The War Diaries of Jean-Paul Sartre" (Q. Hoare, trans.), New Republic , April 15, 1985, pp. 32-34. 36. R. Rorty, "Postmodernist Bourgeois Liberalism, " Jo urnal of Philoso­ phy . 80 ( 1 983):585-86. 37. See R. Rorty, "Taking Philosophy Seriously," (review of V. Farias, Heidegger et le Nazisme), New Republic, April 1 1 , 1988, pp. 3 1-34 . 38. "Taking Philosophy Seriously," p. 34. 39. See "Priority of Democracy," p. 294. 40. "Priority of Democracy," p. 293 . 4 1 . "Priority of Democracy," p. 294. 42. "Priority of Democracy," p. 294.

150 Philosophy and the Mirror of Nature, p. 387. Contingency, p. 36. Contingency, p. 15. Contingency , p. 97. Contingency, pp. 37, 97. Contingency, p. 84. Contingency, p. 87. Contingency, pp. 88-89. 5 1 . Contingency, p. 94. 52. Contingency, p. 95. 43 . 44. 45. 46. 47. 48. 49. 50.

Chapter Eight

Chapter 9

The Unorthodox Liberalism of Joseph Raz

Robert P. George [I]t is the goal of all political action to enable individuals to pursue valid conceptions of the good and to discourage evil or empty ones. 1

Where, in contemporary writing, would one expect to find such a claim? Perhaps the last place one would be tempted to look is in a book described by its author as "both an introduction and a contribution to the political theory of liberalism. " 2 After all, is it not the distinctive claim of modern liberals, as against ancient and medieval political thinkers, that political authorities ought, to the extent possible, to remain neutral as between citizens' competing conceptions of what makes for a valuable and morally worthy way of life? 3 No less orthodox a liberal moralist than retired Justice William J. Brennan has captured the spirit of mainstream liberalism nicely in his notion that the political order established by the Constitution of the United States is "facilitative. " 4 According to a facilitative conception of politics, government-whether federal, state, or local-has no au­ thority to judge matters of "personal" morality. The question of whether a conception of the good is "valid" or "evil" is for individuals to decide for themselves free of governmental intrusion. The proper concern of government is to preserve the freedom of individuals to pursue whatever conceptions of the good they happen to favor (so long as they do not violate the rights of others). The quotation with which I began this paper leaves no doubt that the "liberalism" of Joseph Raz departs radically from the Brennanite orthodoxy. In Raz's view, a morally sound political order cannot be neutral about which ways of life are good and which are evil: the very point of political action is to encourage pursuit of what is truly worthwhile and discourage pursuit of what is morally unworthy . 151

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Just as fifteen years earlier John Rawls's A Theory of Justice5 helped to reorient the discussion of liberal political philosophy by challenging the utilitarian premises of pre-Rawlsian liberalism, Raz's The Morality of Freedom is helping to reorient the debate by challenging the prevail­ ing assumptions of post-Rawlsian liberalism. What Raz proposes, however, is not a return to utilitarianism, but the adoption of a political morality that is not only nonutilitarian and nonneutralist but also, at least in some ways, preliberal. If the modern approach to political theory is distinguished from the ancient and medieval approaches above all by the modern commitment to a neutralist or "facilitative" politics, the position Raz adopts in The Morality of Freedom places him in the company of Plato, Aristotle, and Aquinas rather than in the camp of Locke, Rawls, and Brennan. In what sense, then, can Raz's political theory qualify as liberal?

Pluralistic Perfectionism and the Value of Autonomy Mainstream liberal political theory is antiperfectionist. Antiperfec­ tionism is the view that government is either (1) required to remain neutral on controversial questions of what makes for, or detracts from, a morally good life, or (2) forbidden to act on the basis of controversial ideals of moral goodness. Rawls's adoption of antiperfectionism in A Theory of Justice has been followed by many of the most influential contemporary liberal political theorists, including Robert Nozick, Ron­ ald Dworkin, Bruce Ackerman, and David Richards. Raz, however, breaks sharply with these theorists by utterly reject­ ing antiperfectionism. He devotes two chapters of The Morality of Freedom to criticizing the various arguments that these authors and others have put forward in support of governmental neutrality and the exclusion of ideals. His conclusion is that antiperfectionist principles of political morality are neither warranted nor, strictly speaking, even possible. He proposes, therefore, to construct a theory of political morality on perfectionist premises. He denies, however, that perfectionist political theories must be illiberal. If there are, as Raz believes, good grounds for supposing that liberty is humanly and morally valuable, then a sound perfectionist theory will not leave the good of liberty out of account. 6 A perfectionist liberal political theory will give liberty a certain pride of place among the human goods. In concluding his critique of antiperfectionist liberalism, Raz makes

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two points that foreshadow his adumbration of a perfectionist alterna­ tive. First, he observes that "not all perfectionist action is a coercive imposition of a style of life. Much of it could be encouraging and facilitating7 action of the desired [i.e., morally upright] kind, or dis­ couraging undesired [i. e., immoral] modes of behaviour. "8 Second, he notes that ' ' [p]erfectionism is . . . compatible with moral pluralism, which allows that there are many morally valuable forms of life which are incompatible with each other. " 9 The second point is critical to Raz's project. From the perspective of antiperfectionist critics, Raz's perfectionism renders his claim to be presenting an authentically liberal theory of political morality dubious or at least highly suspect. In reply to these critics, Raz would maintain that what qualifies his theory of political morality as "liberal" is the pride of place it gives to individual liberty. He must, therefore, give some account of why liberty should enjoy this pride of place. Any such account will, in tum, depend upon an understanding of the value of liberty. According to Raz, something is valuable insofar as it contributes to human well-being. And things can contribute to human well-being in two ways. Some things are instrumentally valuable; they are worth having as means to other valuable things. Other things are intrinsically valuable; they are worth having for their own sakes. Instrumental values have their value as means ultimately to things that are intrinsi­ cally valuable. In Raz's theory of practical reasoning, values, including intrinsic values, are reasons for action. They are not reducible to desires. On the contrary, desires are, he says, "reason-dependent." 10 It is the reason-dependent character of desires that grounds a person's reason­ able wish not to have his false desires satisfied. "Want-satisfaction qua want-satisfaction," Raz concludes, "is not intrinsically valuable. " 1 1 We do not necessarily do people a favor, then, by helping them to get whatever they happen to want. If they happen to want what is evil or empty, they have reason not to have their desires fulfilled and others may have reason to frustrate, or even help to alter, the desires they happen to have. Now, how does Raz conceive of the value of liberty? Is liberty intrinsically valuable? Or is it merely instrumentally valuable? If it is intrinsically valuable, is the value of liberty realized in every act in which liberty is exercised? Or is it realized only when someone exercising liberty chooses what is morally good? Raz takes the position that liberty, or what he prefers to call

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"autonomy," 12 is intrinsically valuable. It is an aspect of human well­ being. A rich and full human life is made even richer and fuller when the values realized in that life are realized in and through acts in which the agent freely chooses what to do. 13 Of course, an autonomous agent does not ordinarily choose for the sake of autonomy. Rather, his autonomous choice is ordinarily motivated by some other value. Thus, "the value of freedom depends on the other values which the freedom to perform such actions serves. " 14 Autonomy or freedom, in Raz's philosophy, is not the only intrinsic value. Many other things are intrinsically good; and inasmuch as autonomy is ordinarily exercised in choosing for reasons other than autonomy, it would not be valuable unless there were other intrinsic goods. It is clear, then, that Raz's perfectionism is pluralistic. There are many human perfections. Thus, frequently, there are many morally valuable possibilities from which people must choose. In choosing, one realizes not only the values that motivate one's choice; one realizes the value of autonomy as well. Is it not the case, however, that one may autonomously choose possibilities that are morally bad? Are such choices somehow redeemed by the freedom one exercises in making them? Raz faces these questions squarely. His position is that although one may autonomously choose what is morally bad, " [a]utonomy is valuable only if exercised in pursuit of the good. " 15 " Indeed," he says, "autonomously choosing the bad makes one's life worse than a comparable non-autonomous life is. " Raz himself takes note of some of the political implications of this view: " [s]ince auton­ omy is valuable only if it is directed at the good it supplies no reason to provide, nor any reason to protect, worthless let alone bad options." 1 6 Raz argues that the good of autonomy requires that people have available to them for choice a range of morally worthy options. A perfectionist political order will, therefore, concern itself with the provision of such options. On the basis of this conclusion, Raz rejects familiar notions of liberalism as a theory of limited government. " While not denying that governments can and often do pose a threat to individual liberty," he says "there is another conception which regards them also as a possible source of liberty." 1 7 It is the latter conception that he embraces. In rejecting the former conception, Raz also rejects the individualism so characteristic of antiperfectionist liberal political philosophy. Near the beginning of The Morality of Freedom, he says that " [i]f there is one common thread to the argument of this book it is its critique of

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individualism and its endeavour to argue for a liberal morality on non­ individualistic grounds." 1 8 How does Raz square his antipathy to individualism with his central concern for individual freedom? The answer to this question is most interesting. Raz argues that the existence of certain social institutions, practices, and conventions (what he generally refers to as "social forms" ) are often critical to making available to people morally valuable opportunities for choice. The opportunity to marry, for example, is only available in circum­ stances where the institution of marriage exists. Marriage simply is not a realistic option for people in a society that is lacking that social institution. And although the institution of marriage differs in certain respects from society to society, there are limits to the pluralism that any society can bear with respect to that institution. The concrete legal and symbolic significance of the institution of marriage as it exists (where it exists) is not an individual matter. 1 9 Raz illustrates the point with the example of monogamous marriage: Monogamy, assuming that it is the only morally valuable form of mar­ riage, cannot be practised by an individual. It requires a culture which recognizes it, and which supports it through the public's attitude and through its formal institutions. 20

Thus, according to Raz, in promoting and protecting social forms such as marriage public authorities-far from violating individual lib­ erty and autonomy-enhance these goods. By contrast, a political order that neglects to provide such support fails to make available to its members the morally valuable opportunity afforded by, for exam­ ple, the institution of monogamous marriage. Moreover, Raz notices that certain social forms that are important for human well-being and fulfillment need not themselves even provide opportunities for choice. In remarking on this fact, Raz draws out further implications of his conception of individual liberty that run contrary to liberal orthodoxy. The relations between parents and their children are an example of a relationship which is not based upon choice of partners. It shows that an environment can be supportive of autonomy and yet include forms not based on choice. . . . It has to be admitted though that even here choice has tended to creep more and more into the relations. Parents have greater control over whether and when to have children. and to a certain extent over which children to have. The widespread use of contraception.

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abortion, adoption, in vitro fertilization and similar measures has in­ creased choice but also affected the relations between parents and their children. The impact of the increased choice on the character of the family is just beginning to be felt. It would be a mistake to think that those who believe, as I do, in the value of personal autonomy necessarily desire the extension of personal choice in all relationships and pursuits. They may consistently with their belief in personal autonomy wish to see an end to this process, or even its reversal. 21

I have quoted Raz at length here to highlight both his thoroughgoing anti-individualism and, relatedly, his rejection of the common liberal belief that the expansion of individual choice, or its extension into new areas of human activity, is inevitably desirable. For Raz, everything depends on the moral evaluation of the options being made available for choice. Where a choice is between morally worthy but incompati­ ble possibilities, one realizes (in addition, perhaps, to other goods) the intrinsic good of autonomy simply by choosing for oneself. The opportunity to make the choice is therefore one that it is in principle valuable for one to have. By contrast, it may not be valuable for one to have the choice of immoral possibilities. Raz insists that the choice of an immoral option, despite its autonomous nature, is valueless. The opportunity to make such choices is valuable only to the extent that confronting and overcoming the temptation to choose immorally is necessary for one to build a good moral character. As Raz observes, however, no particular immoral possibility need be available to serve this function.22 Life is filled with ineradicable temptations against which one may form one's moral backbone and test one's mettle. Let us take stock: Raz's pluralistic perfectionism allows for a range of choices between morally valuable but incompatible possibilities. In making these choices, individuals uniquely realize a particular intrinsic good (or human perfection), namely, personal autonomy. This good provides the moral ground for the liberal political commitment to individual liberty. At the same time, in its perfectionist concern for the moral well-being of citizens, government ought to support those social institutions that help to make morally valuable opportunities available for choice. It should eschew neutrality with respect to marriage and family life, for example. In promoting and protecting these valuable social forms, government does not violate people's autonomy; rather, it extends autonomy by enriching the morally valuable opportunities for choice. As between morally valuable but incompatible possibilities, however, government must, for the sake of autonomy, respect individ-

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ual liberty. Autonomy requires that government abstain from dictating to people in morally neutral matters. Tyrannical governments, insofar as they deprive people of morally worthy options, harm them by violating their autonomy. On the other hand, government need not, and indeed should not, remain neutral as between morally upright and immoral options. It should play an active role in encouraging morally valuable activities and discouraging activities that are morally evil. Liberal Toleration and the Harm Principle None of what I have said thus far is likely to provide much reassurance to orthodox liberals. By the same token, more traditionally minded philosophers may be wondering just what, if anything, separates their positions from Razian liberalism. To be sure, Raz's political theory is not illiberal; it places a great emphasis on the importance of individual liberty. Contemporary natural law theorists and other traditionally oriented conservative critics of liberalism, however, typically defend alternatives to liberalism that are in no way illiberal. They too are pluralistic perfectionists. 23 They too believe that people ought to shape their own lives by choosing for themselves whether, or whom, to marry, for example. They agree that government ought to support social institutions that make morally valuable opportunities available to people but abstain from dictating to people in matters that are morally indifferent. Their perfectionism is no more sympathetic to tyranny than is Raz's perfectionist liberalism. So, the question lingers: What is distinctively liberal about Raz's political philosophy? The answer may lie in Raz's endorsement of a modified version of J. S. Mill's "harm principle. " 24 In Raz's hands, this principle forbids the government from using coercive means to discourage people from committing "harmless" or, better, "victimless" immoralities. 25 Al­ though his perfectionism authorizes the government to use noncoer­ cive methods of combatting immoralities of this sort, he argues that a due regard for the value of autonomy forbids the government as a matter of principle from criminalizing immoral acts unless those acts are harmful, or at least potentially harmful, to others. It is worth emphasizing that Raz opposes the legal prohibition of victimless immoralities as a matter of moral principle. He is not merely making a prudential or pragmatic argument against morals legislation. Thus, his position can be distinguished from the position of Aquinas, for example. In his famous reply to the question of whether the

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criminal law ought to repress all vices, Aquinas held that human law should concern itself mainly with those vices that cause harm to others. 26 He did not, however, rule out in principle the use of the criminal law to protect the community's moral environment against the corrupting influences of vice. He treated the matter as one for prudent legislative judgment. Raz, by contrast, wishes to show that the use of the criminal law to combat victimless immoralities is itself morally wrong. Here he adopts, I submit, a distinctively liberal position. He supports that position with an argument meant to show that ' ' victimless crimes'' are ruled out by a proper concern for autonomy. He recognizes, however, that this claim is problematic in view of his perfectionism. Noting that his general argument is "that it is the function of governments to promote morality," he says that that means that governments should promote the moral quality of the life of those whose lives and actions they can affect. Does not this concession amount to a rejection of the harm principle? It does according to the common conception which regards the aim and function of the principle as being to curtail the freedom of governments to enforce morality. I wish to propose a different understanding of it, according to which it is a principle about the proper way to enforce morality. 27

He then sets about the task of "deriv[ing] the harm principle from the principle of autonomy. ' ' 28 Raz's proposed derivation of the harm principle begins with yet another reminder of a concession entailed by his perfectionism. He then makes two distinct claims by which he purports to establish that this concession does not undercut the principle of his liberal opposition to morals laws. Pursuit of the morally repugnant cannot be defended from coercive interference on the ground that being an autonomous choice endows it with any value. It does not (except in special circumstances where it is therapeutic or educational). And yet the harm principle is defensible in light of the principle of autonomy for one simple reason. The means used, coercive interference, violates the autonomy of its victim. First, it . . . expresses a relation of domination and an attitude of disrespect for the coerced individual. Second, coercion by criminal penalties is a global and indiscriminate invasion of autonomy. Imprisoning a person prevents him from almost all autonomous pursuits. Other forms of coercion may be Jess severe, but they all invade autonomy, and they all, at least in this

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world, do it in a fairly indiscriminate way . That is, there is no practical way of ensuring that the coercion will restrict the victim's choice of repugnant options but will not interfere with other choices . 29

It must be said that liberal critics of legal moralism, no less than its nonliberal defenders, have found Raz's argument in defense of the harm principle to be fragile.30 His claim that coercion necessarily "expresses a relation of domination and disrespect" seems gratuitous. He offers no evidence for the claim and many people, including myself, see no reason to credit it. As the antiperfectionist liberal theorist Wojciech Sadurski has correctly observed, "more radical perfection­ ists than Raz have argued that it is precisely the respect for a person which should trigger our coercive interference with morally repugnant actions." 3 1 Sadurski goes on to argue that, in light of Raz's perfection­ ist conception of autonomy (i.e., the conception in which autonomy is valuable only if exercised in the pursuit of what is morally valuable), it is hard to perceive any violation of the value of autonomy in legal prohibitions of victimless wrongs. "And this raises the suspicion that Raz smuggles into his argument a nonperfectionist notion of autonomy. . . . " 32 As for Raz's claim that "coercion by criminal penalties is a global and indiscriminate invasion of autonomy," it is hard to quarrel with Sadurski's judgment that "[t]his argument is surprisingly inadequate to the burden it is supposed to carry, namely the defence of the harm principle.''33 Criminal prohibition and punishment in the case of morals laws are certainly no more "global and indiscriminate" than prohibi­ tion and punishment in other areas of the criminal law. If preventing self-corruption is as valid a reason for political action as preventing theft, as Raz concedes it is, then there seems to be no m oral principle that forbids the use of the criminal law to combat vice. Prudential considerations may tip the balance against legal prohibition in many (or even most) cases; the force of such considerations, however, will vary with the circumstances. In any event, as Sadurski observes, "Raz's argument is, at best, an autonomy-based argument against the penalty of imprisonment for morally repugnant actions, but is not sufficient to justify rejection of all coercive prohibitions of immoral [though victimless] behaviour. " 34 Even apart from the difficulties it creates for his argument in the area of morals legislation, there is something peculiar in Raz's claim that autonomy is intrinsically valuable, yet devoid of value in the case

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of morally evil choices. Indeed, Donald Regan maintains that Raz's position on the matter is internally inconsistent. [T]here is no inconsistency in saying that autonomy is autonomy even when it chooses the bad, and saying also that autonomy is valuable only when it chooses the good. But there is an inconsistency in asserting both of these propositions and in supposing also (as Raz does) that autonomy, tout court, is valuable. These three propositions taken together entail that autonomy which chooses the bad both is and is not valuable. 35

Regan's advice to Raz is that, "strange as it may sound," he should abandon the claim that autonomy is autonomy even when it chooses the bad. The less-desirable alternative, according to Regan, is to give up the claim that autonomy as such is valuable. I think that Regan is on to something here, but that he gives Raz the wrong advice. If something is intrinsically valuable, its realization in immoral acts does not negate its value. By the same token, its value does not redeem the immoral choices by which it is realized, at least if consequentialism is false (as Raz agrees it is). 36 If therefore autonomy is conceived to be intrinsically valuable, we must recognize its value even when exercised immorally. And we can do so without jeopardiz­ ing the belief that some autonomous acts really are immoral. Nevertheless, I think that Raz is both mistaken in his understanding of autonomy as intrinsically valuable and correct in his view that nothing of value is realized in wicked choices by virtue of their having been made autonomously. Autonomy appears to be intrinsically valu­ able because something really does seem to be more perfect about the realization of goods when this realization is the fruit of one's own practical deliberation and choice. The additional perfection, however, is provided not by autonomy, but by the exercise of one's reason in self-determination. Autonomy, in some sense, is surely a condition for such exercise, and thus for the realization of the value of bringing reason to bear in deciding . what to do. Practical reasonableness, however, and not the autonomy on which it is conditioned, is the intrinsic good in play here. Thus, we may validly conclude that practically reasonable choices are perfective of human beings (i.e., are intrinsically valuable); practically unreasonable (i.e., immoral) choices, by contrast, realize no value in respect of the autonomy exercised in making them.

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Conclusion Raz's claim to be operating within the tradition of liberalism seems strongest where his arguments on the merits seem weakest. Whatever else is to be said for and against antiperfectionism (and I think that Raz is correct to think that there is much to be said against it), its premises clearly provide more solid support for the principled rejection of morals legislation than Raz is able to muster. Of course, Raz could abandon his strong claims against legal moral­ ism and repair to prudential objections to most (or even all) morals laws. In response to critics who might then accuse him of abandoning liberalism, he could say that the coincidence of his political theory with the theories of philosophers who think of themselves as outside the liberal tradition simply reveals the extent to which liberal pluralism has influenced virtually all contemporary political thinkers. In the world of ideas, he might argue, the liberal view of the importance of individual liberty has triumphed.

Notes 1. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), p. 133 . 2. The Morality of Freedom, p. 1. 3. See Ronald Dworkin, "Liberalism, " in A Matter of Principle (Cam­ bridge, Mass . : Harvard University Press, 1985), p. 191. 4. See Michael H. v. Gerald D., 109 S. Ct. 2333, 2351 (1989) (Brennan, J., dissenting). 5. John Rawls, A Theory ofJustice (Cambridge, Mass. : Harvard University Press, 1971). 6. John Finnis makes the same point: ". . . liberty and authenticity are goods, too. They will find their place in any accurate (i.e., 'full', non-emaciated . . . ) theory of human good." Fundamentals of Ethics (Oxford: Oxford University Press, 1983), p. 50. 7. Obviously, Raz' s use of the term "facilitating" here implies no Brennan­ like notion of a "facilitative" political order that abstains from treating people's personal moral welfare as a reason for political action. Raz is simply proposing that there are sometimes noncoercive means of encouraging and enabling people to do what is morally good and avoid what is morally evil. 8. The Morality of Freedom , p. 161 . 9. The Morality of Freedom, p. 161. Raz's notion of "moral pluralism" has nothing to do with moral relativism. In speaking of "many morally

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valuable forms of life which are incompatible with each other," he is not supposing that there are actions that are "morally wrong" for people who happen to think that they are morally wrong but "morally right" for people who happen to think otherwise. Nor is he supposing that there are actions that are "morally right" for people who wish to perform them but "morally wrong" for others. He has in mind, rather, the idea that there are certain morally valuable possibilities (e.g., actions and ways of life), the choosing of which is incompatible with the choosing of certain other morally valuable possibilities. For example, the choosing of a life of consecrated celibacy, while morally valuable, is incompatible with the choosing of marriage despite the fact that marriage is morally valuable. Or again, the choice to devote an evening to conversation with friends, while morally valuable, is incompatible with the choice of spending that evening reading Shakespeare, reflecting on human finitude, or praying for wisdom despite the fact that these activities are morally valuable. 10. The Morality of Freedom, pp. 140-44. 1 1 . The Morality of Freedom, p. 143. 12. Raz distinguishes autonomy in his sense, namely, "personal autonomy" from "the only very indirectly related notion of moral autonomy." The Morality of Freedom, p. 370, n. 2. Cf. David Richards' reduction of moral autonomy to personal autonomy in various of his writings, e.g., Sex, Drugs, Death and the Law (Totawa, N.J.: Rowman and Littlefield, 1982). For a critique of Richards see John Finnis, "Legal Enforcement of Duties to Oneself: Kant v. Neo-Kantians," Columbia Law Review 87 (1987): sec. 3, p. 433 . 13. Raz explains that " [t]he ruling idea behind the ideal of personal auton­ omy is that people should make their own lives. The autonomous person is (part) author of his own life. The ideal of personal autonomy is the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives." The Morality of Freedom, p. 369. "Autonomy," he says, "is opposed to a life of coerced choices. It contrasts with a life of no choices, or of drifting through life without ever exercising one's capacity to choose" The Morality of Freedom , p. 37 1 . 14. The Morality of Freedom, p. 16. 15. The Morality ofFreedom, p. 38 1 . 16. The Morality of Freedom, p . 4 1 1 . 17. The Morality of Freedom , p . 18. 18. The Morality of Freedom , p. 18. 19. According to Raz, " [t]he very relationship between spouses depends . . . on the existence of social conventions. These conventions are constitutive of the relationship. They determine its typical contours. They do this partly by assigning symbolic meaning to certain modes of behavior." The Morality of Freedom , p. 350. 20. The Morality of Freedom, p. 160. 2 1 . The Morality of Freedom, pp. 393-94.

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22. The Morality of Freedom, p. 410. 23. For an example of a pluralistic perfectionist natural law theory see John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980). In The Morality of Freedom , pp. 395-99, Raz usefully distinguishes between "weak" and "strong" forms of pluralism. "Strong" pluralism, which he endorses, is marked by the recognition of incompatible virtues that (1) "are not completely ranked relative to each individual, " and/or (2) "are not completely ranked by some impersonal criteria of moral worth," and/or (3) "exemplify diverse fundamental concerns. " Raz explains that the incommen­ surability of values supports (1) and (2), and renders (3) highly plausible. It is noteworthy that Finnis's natural law theory is fully compatible with Raz's "strong" pluralistic perfectionism. This compatibility is undoubtedly to be accounted for in large part by Finnis's own belief in the incommensurability of the basic forms of human good that provide ultimate reasons for choice and action. Raz and Finnis both reject utilitarianism-even the "two-level" and "indirect" forms of utilitarianism that may be morally pluralistic in a weaker sense and, as Raz points out, "may also accept the first two strong forms of pluralism [but] are incompatible with the third. " The Morality of Freedom, p. 397. 24. According to Wojciech Sadurski, who criticizes Raz's political philoso­ phy from an antiperfectionist point of view, ' ' [t]he major point of convergence between Raz's book and the 'conventional' liberal theory is the acceptance of the harm principle as a basis for restraining the exercise of coercive powers of the state. " "Joseph Raz on Liberal Neutrality and the Harm Principle, " Oxford Journal of Legal Studies lO (1990): 122-33, p. 130. 25. Raz's references to "harmless" immoralities in The Morality of Free­ dom created some uncertainty as to the scope of his critique of morals legislation. Recently he has clarified the matter by making clear that he objects to the criminalization of "victimless" immoralities generally. See "Liberalism, Skepticism, and Democracy, " Iowa Law Review 74 (1989):761-86, p. 785. 26 . Summa Theologiae 1-11, q. 96, a. 2, reply. Joel Feinberg has recently claimed that Aquinas's position qualifies him as a "liberal" on the question of the moral limits of the criminal law. Inasmuch as Aquinas clearly does not rule out morals legislation as a matter of moral principle, however, Feinberg's claim is mistaken. See Robert P. George, "Moralistic Liberalism and Legal Moralism," Michigan Law Review 88 (1990):1415-29, pp. 1421-22. 27. The Morality of Freedom, p. 415. 28 . The Morality of Freedom. 29. The Morality of Freedom, pp. 418-19. 30. Compare the criticisms of Raz's argument made in Sadurski, "Joseph Raz on Liberal Neutrality, " pp. 130-33, with those offered by myself in "Justice and Public Morality," The World and I 5 (1990): 517-45, pp. 537-43 . 31. "Joseph Raz on Liberal Neutrality," p. 132. For examples of "more radical perfectionists" making precisely the argument mentioned by Sadurski,

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see Finnis, "Legal Enforcement of 'Duties to Oneself' ," p. 437, and Robert P. George, "Individual Rights, Collective Interests, Public Law, and American Politics," Law and Philosophy 8 ( 1989) :245-6 1 , pp. 256-58. 32. "Joseph Raz on Liberal Neutrality," p. 132. 33. "Joseph Raz on Liberal Neutrality," p. 1 32. 34. "Joseph Raz on Liberal Neutrality," p. 133. 35. "Authority and Value: Reflections on Raz's The Morality of Freedom ," Southern California Law Review 62 (1989):995- 1085 , p. 1084. 36. Raz rejects consequentialism on the ground that consequentialist meth­ ods of moral judgment rely on the mistaken assumption that basic values are commensurable in a way that would make aggregation and comparison of values possible. See The Morality of Freedom , ch. 1 3 . For a more radical critique of consequentialism based on the "incommensurability thesis," see John Finnis, Joseph M. Boyle, Jr., and Germain G risez, Nuclear Deterrence, Morality and Realism (Oxford: Clarendon Press, 1987) pp. 254-260.

Chapter 10

William Galston's Defense of Liberalism: Forging Unity Amid Diversity

J. Brian Benestad William Galston is a political theorist who has dedicated most of his writings to the defense of liberalism. Using a self-described quasi­ Aristotelian approach, he has explained the deficiencies in the thought of major liberal theorists and defended liberalism on the basis of a substantive account of the good. Galston has published articles criticiz­ ing the approaches of Michael Walzer, Roberto Unger, Amy Gutmann, Jeremy Waldron, and especially John Rawls. Galston's own defense of liberalism is premised on his belief in the genuine possibility of arriving at an understanding of truth through the discipline of political philoso­ phy. He believes that liberalism can be defended on the basis of truth claims. In other words, the liberal state is the best possible regime given the fact of pluralism and a proper understanding of the good. Galston seeks a via media between perfectionist liberalism and pragmatic liberalism. Galston's via media is a minimal perfectionism. The liberal state is not and cannot be neutral with respect to an understanding of the good. Citizens in a liberal regime do and must share agreement on some limited notion of what is good in order to form a cohesive community. In his writings, Galston puts forth a "liberal" conception of the good and specifies the virtues needed even in a pluralistic democracy. The shared agreement on the good and liberal virtues would still allow wide scope for a pluralism of ends. Hence, minimal perfectionism. Crucial to Galston's project is the preservation of the "metaphysi­ cal" or "transcendental" impulse in political philosophy. Like Plato and Aristotle, Galston believes in "the systematic comparison and testing of opinion." Political philosophy begins from and seeks to get behind local opinions. It has the potential of transcending the bias of a particular culture and justifying the truth of at least a minimal code of 165

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public morality, which all citizens should accept. Without shared agreement on some moral principles, Galston believes the social unity of a liberal regime will be in danger. Galston's Critique of Rawls In his critique of Rawls, Galston provides an excellent introduction to his own understanding of liberalism. A brief look at several features of that critique will suffice for the purpose of this chapter. Rawls's A Theory of Justice (1971) was written sub specie aeternitatis. In other words, Rawls presented his theory of justice as true, not as culture bound. Rawls's approach did differ from traditional political philoso­ phy in that it did not present an ideal political order on the basis of which he could criticize existing regimes. But "[i]n Rawls's case," says Galston, "theory was a prelude to the celebration of a political order that bore a remarkable resemblance to the modem-liberal demo­ cratic welfare state." 1 In several parts of his book, Justice and the Human Good, Galston raises objections to fundamental principles in Rawls's political philoso­ phy. For example, Rawls holds that principles of justice do not include natural duties. In other words, what is just and unjust depends on the consensus of the people who participate in the social contract. Galston holds, on the contrary, that human beings are social animals and have obligations toward each other prior to any duties assumed by membership in a political community. Any concept of justice must include those natural obligations. 2 Galston further objects to Rawls's contention that his so-called primary goods are universal means and neutral among life plans. Galston convincingly shows that two of these goods, wealth and self-respect, sometimes can be obstacles to the fulfillment of a life plan. He refers to Christian teachings about the danger wealth poses to salvation and the ambiguity of self-respect. "If one is not yet good, then unalloyed self-respect can be an impediment to self-improvement, and the ability to feel and respond to shame must be considered beneficial. " 3 One final example from Galston's book on justice: Galston takes issue with Rawls's Difference principle, which requires that social and economic inequalities redound to the greatest benefit of the least advantaged members of society. Following Robert Nozick's objection to this principle, Galston comments, "If it is not self-evidently right for families to skew the expenditure of educational resources toward the least talented children, then how can this bias be

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appropriate as a matter of public policy.''4 On the other hand, Galston also does not believe there is any intrinsic reason to give special treatment "in the allocation of developmental opportunities" to the most gifted individuals. 5 In the 1980 "Dewey Lectures," Rawls, according to Galston, pres­ ents his new understanding of political philosophy. It should simply attempt to discern and spell out the latent and explicit principles and practices of a specific culture. Galston comments, "it follows that there are no general principles or particular judgments external to the shared understanding of a public culture that can be employed to judge the worth of that culture, taken as a whole. "6 Political philosophy in this mode needs a finely tuned antenna because "the content of its principles is provided by the shared beliefs of the democratic community.''7 This appears to be still another version of historicism. Galston not only objects to the historicizing tum of Rawls's political theory, but also argues that "justice as fairness departs so sharply from our shared understanding that Rawls cannot plausibly claim to be making our intuitions explicit, or to be providing a foundation for what we already believe. "8 Galston believes that the American consensus on just principles and institutions is much more reflective of opinions held by the working class than by the educated elite. In broad outlines the elements of the consensus are as follow: "desert as the basis of distribution; ability, effort and self-denial as the basis of desert"; belief in the right to at least a minimally decent existence through work or through some kind of government intervention for people who cannot work; belief in moral equality and fair equality of opportunity; acceptance of natural inequality with the concomitant "differences of occupation, income, and status"; belief in the kind of moral freedom that guarantees "a sphere of privacy within which coercive interfer­ ence by other individuals or by the state is thought to be illegitimate''; acceptance of duties to self and to others and belief in the claims of religion. 9 The Rawlsian conception of moral personality "diverges radically" from the above-described consensus. In Galston's words: Rawlsian moral freedom liberates us from all antecedent principles-all duties and obligations, all intrinsic values other than freedom itself. Rawlsian moral equality reduces to moral nullity the respects in which we are naturally unequal, and Rawlsian justice severs the link between what we do and what we deserve. The valid claims we address to one another are based on being rather than doing, on bare abstract existence, shorn of any of the features that distinguish us from one another. 10

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If Galston 's statement of the American consensus on just principles is correct, Rawls cannot possibly use his methodology to discern, formu­ late, and express the habits of mind and heart in American culture. Having abandoned Utopian political theory-a crucial error for any political theorist, according to Galston-Rawls cannot even logically attempt to persuade the multitudes of the truth of his theory. Galston describes Utopian thought as the political branch of moral philosophy. "Utopias are images of ideal communities; utopian thought tries to make explicit and to justify the principles on the basis of which such communities are held to be ideal." 1 1 Utopian thought, then, provides guidance for action, not a precise political program. It points the way, helps choose among available alternatives, and "serves as the basis for the evaluation of existing institutions and practices." 12 "In nearly all cases," says Galston, "important human or material preconditions for good politics will be lacking. Political practice con­ sists in striving for the best results available in particular circum­ stances. " 1 3 Galston draws an interesting parallel between Rawls's thought and "advanced" liberal politics. "Preoccupied with the plight of the worst­ off groups in our society [it] severed its bonds with the moral convic­ tions of the working class" at the very time that Rawls's thought became all the rage. 14 This split between liberal elites and the working class caused by political practice and political theory is, according to Galston, one of the liberal state's most serious problems. The split endangers the future of progressive politics and the denigration of traditional morality by elites threatens the moral foundations of the liberal state. In a later article Galston considerably expands upon his critique of Rawls by addressing four major shifts in his thought. First, Galston takes issue with Rawls's expanded notion of moral personality. Per­ sons, according to Rawls, have two moral powers: The first power is the capacity for an effective sense of justice, that is the capacity to understand, to apply and to act from (and not merely in accordance with) the principle of justice. The second moral power is the capacity to form, to revise, and rationally to pursue a conception of the good.15

Galston raises four problems with this view of moral personality. First, it is not at all certain that everyone is capable of acting from justice and from a self-devised conception of the good. Aristotle clearly did

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not think that most people could rise to such heights. He said, "Most people are swayed rather by compulsion than by argument, and by punishment rather than by what is noble." 16 Galston suggests that the drafters of the U. S. Constitution probably could not have accepted the feasibility of Rawls' s approach ; " . . . in their view , the dominance of both passion and interest was such as to make an effective sense of justice the exception rather than the rule. " 17 Second, Galston wonders whether religious fundamentalists ''would regard the capacity to form and revise a conception of the good as a good at all, let alone a highest­ order interest of human beings. " 18 (Galston could have strengthened his argument by substituting for fundamentalist the more comprehen­ sive term-any believer in revealed religion. Not only fundamentalists but also believing Jews and Christians should declare-not "might well declare" as Galston writes-"that the best human life requires the capacity to receive an external good (God's truth) rather than to form a conception of good for oneself, and to hold fast to that truth once received rather than to revise it. " 19 The capacity to receive instruction from God is the fundamental disposition for Jews and Christians.) Galston even briefly raises a third and fourth objection to Rawls's theory of moral personality: " [It] excludes knowledge of differing conceptions of the good from the original position and rules out individual desert as a core element of our collective understanding that should help structure the principles of justice we adopt. ' ' 20 Galston's second major criticism addresses Rawls's expanded view of the good. Rawls, says Galston, recently admitted that his theory always depended "on the same triadic theory of the good, which asserts the worth of human existence, the value of the fulfillment of human purposes, and the commitment to rationality as the chief guide to both individual purposiveness and collective undertakings. "2 1 Rawls's view of the good now includes freedom and justice ; they are ends in themselves. "The freedom to choose one's own conception of the good is among the highest-order goods"; 22 it must even take precedence over comprehensive philosophical truths. "A conception of justice must contain within itself space, as it were, for ways of life that can gain devoted support"23 (my emphasis). Galston directs attention to Rawls' s admission that some ways of life will lose out in his liberal polity, some of which will be most worthy of adoption. In Galston's mind, Rawls's thicker view of the good requires the reinterpretation of the priority of right "as the priority of the public over the nonpublic . . . . The possibility, therefore, looms that giving priority to the requirements of social cooperation will compel individu-

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als to make sacrifices of their core commitments and of aspects of their character they regard as basic to their identity and integrity.''24 Galston's third argument is with Rawls's assertion "that justice or fairness is a political conception.'' Galston explains: A political conception is both drawn from and addressed to a specific public culture, and its justification lies in fidelity to the shared understand­ ings of that culture rather than its correspondence to some universe of moral facts. Finally, it is (so far as possible) detached from, independent of, and neutral with respect to broader and inherently controversial philosophical, metaphysical and religious commitments. 25

A political conception of justice will permit "sharp differences between public and nonpublic principles." It will also allow many-even con­ tradictory-nonpublic conceptions of the good. One of the objections Galston raises regarding Rawls's political conception of justice is that it is probably not possible to keep metaphysical issues and differences out of the public arena. To believe in this possibility is to misunder­ stand the nature of the human person. To illustrate his point, Galston mentions abortion and slavery. For many citizens it was and is a question of character and public right not to be silent respectively about slavery and abortion. In Galston's mind liberal societies must engage in public argument over highly divisive moral issues. No political theory should attempt to take them off the public docket. Galston's fourth objection to the revision in Rawls's thoughts ad­ dresses once again Rawls's abandonment of a political philosophy constructed sub specie aeternitatis. Galston reiterates previously pub­ lished arguments-already discussed-and adds two more. First, Rawls's historical account of political philosophy "leaves no basis for the comparative assessment of regimes. " 26 All he can logically say about Hitlerism, Stalinism, and apartheid is that they "violate our shared understandings. " 27 Rawls's theory does not allow for any transcultural standard of right. Second, Galston points out the implica­ tions of not describing American political principles as universal truths. "If our principles are valid for us only because we (happen to) believe them, then they are not binding even for us. " 28 There is no compelling reason to abide by principles that are only valid because they are accepted. Galston's critique of Rawls gives precise indications of the manner in which Galston understands and defends the liberal state. After making very few comments on the way most liberal theorists, accord-

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ing to Galston, defend the liberal state, I will present his proposed solutions to the crisis of liberal theory.

Galston's Defense of the Liberal State Contemporary liberal theorists, says Galston, have defended the lib­ eral state on the grounds that it is neutral with respect to the question of the good life. The liberal state does not rest on a substantive or thick theory of the good and is therefore open to different ways of life. To the question why neutrality justifies the liberal state, theorists give two answers. "First it may be argued that there is in fact no rational basis for choosing among ways of life. "29 If rational knowledge of the good is inaccessible to citizens and political leaders, then state neutral­ ity is the only proper response. Galston formulates the second argu­ ment as follows: " . . . even if knowledge about the good life is available, it is a breach of individual freedom-the highest value-for the state to impose this knowledge on its citizens. "30 Only in the neutral state will freedom have priority over the good. Contemporary liberals such as John Rawls invoke John Locke's doctrine of religious toleration to justify neutrality on moral ques­ tions. 3 1 Just as no one can prove that a particular religion is true, so no one can demonstrate the truth of any moral position. Galston convincingly shows that Locke is far from neutral on important moral questions. Although civil authority may not coerce people to believe a religious truth, it may offer persuasive arguments on behalf of that truth. Second, Locke's rational knowledge of morality ''undergirds both the critique of religious intolerance and the principles governing the relations between religion and the public order. ''32 Third, Locke does not hold that the state must tolerate all religious practices. The state may prohibit religiously grounded actions when they conflict with the civil order. For Locke "a core morality is politically essen­ tial," 33 says Galston. The liberal state does not necessarily or logically follow if knowledge of the good is inaccessible. "Full skepticism about the good," says Galston, "leads not to tolerance, not to liberal neutrality, but to unconstrained struggle among different ways of life, or struggle in which force, not reason, is the final arbiter. "34 Without some moral convictions about the good, people will not have any solid reason to respect human rights or other ways of life. Of course, fear or self-

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interest could lead to tolerance but passions are not a very reliable ground on which to create and maintain social unity. Although contemporary liberal theorists claim to do without a sub­ stantive theory of the good, in fact, says Galston, they all "covertly rely on the same triadic theory of the good: first, the worth of human existence; second, the worth of human purposiveness and of the fulfillment of human purposes; and finally, the worth of rationality as the chief constraint on social principles and actions. " 35 In Galston's view, an adequate defense of the liberal state requires making explicit the notion of the good upon which it is based. Galston stresses that "every polity embodies a more than minimal conception of the good that serves to rank-order individual ways of life and competing princi­ ples of right conduct. " 36 Galston does not think that leading contemporary liberal theorists offer an adequate defense of the liberal state. Not only do they fail to make explicit the substantive notion of the good upon which their writings depend, but also they do not draw out "the full theory of the good latent in liberal practice. " 37 In his most recent book, Liberal Purposes, Galston proposes "a liberal conception of the individual human good. " 38 More precisely he tries to discern the concept of good that adequately provides a founda­ tion for the functioning of a liberal social order. There seems to be a consensus, according to Galston, that the following are the key dimen­ sions of the good accepted by citizens in a liberal polity: life, normal development of basic capacities, fulfillment of interests and purposes, freedom, rationality (e.g., belief in argument), society (family, friends, acquaintances, and associates in voluntary organizations), and subjec­ tive satisfaction. 39 This theory of the good, constituting a minimal perfectionism, rules out certain approaches to social life as a basis of public action. (1) Secular nihilism-the belief that human life and purposiveness are without moral significance; (2) theological withdrawalism-the belief that what happens here on earth doesn't matter because the real action is in the afterlife; (3) moral monism-"one size fits all" accounts of the good, (4) Nietzschean irrationalism; (5) barbarism-deliberate or heedless deprivation of minimal goods.40

Agreement on a theory of the good provides citizens with a common basis for public policy initiatives. For example, without the proper education of children the fulfillment of purposes is in jeopardy. Galston

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discerns two kinds of public policy in a liberal polity, reflecting respect for persons and a shared conception of the good. The distinction between public policy directed toward capabilities and opportunities on the one hand, and the conduct of individual life-plans on the other, reflects the fact that liberalism embodies a respect for individual agency as well as a conception of the good. 41

A liberal theory of the good keeps at a minimum the attempt to forge a consensus on common ends for the polity. Rather, it directs attention toward creating and ensuring possibilities for individuals to make choices that seem fitting to them. Allowing scope for a pluralism of ends is characteristic of minimal perfectionism. A more fully perfec­ tionistic understanding of the good would regard desires as acceptable when consistent with some objective standard such as Aristotelian excellence or the divine law. 42 Galston justifies the liberal state on the grounds that it promotes a number of goods: social peace; the rule of law ; the recognition of diversity by providing opportunity for all to develop their talents and pursue their life plans according to their conceptions of the good; ''the tendency to treat steadily increasing percentages of their members as full and equal citizens" ; reduction of wanton brutality and desperate poverty; affluence for many people ; equality of opportunity created especially by means of universal education; approximate justice through response to need-based claims in the political area and desert­ based claims in the economy; openness to truth through such instru­ ments as universities, the press, and political institutions; and protec­ tion of "an autonomous sphere of private sentiments and affections" against encroachment by social and political powers. 43 In a liberal society "the full development of each individual is equal in moral weight to that of every other. . . . Thus a policy that neglects the educable retarded so that they do not learn how to care for themselves and must be institutionalized is, considered in itself, as bad as one that reduces extraordinary gifts to mere normality. ' ' 44 This is an example of equality in practice. Liberal society, furthermore, provides an extraordinary degree of freedom. Citizens even have the opportunity to acquire "a reflective distance" from the principles undergirding their own regime. Although Galston celebrates the freedom allowed individuals in a liberal society, he does not defend a doctrine of rights independent of duties. There is no right to do wrong. 45 An individual's freedom is

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circumscribed by duties to self and to others. 46 Galston affirms that rights actually have as a foundation some concept of right and wrong. For example, if an individual has an absolute negative right-i. e. , "the right not to be the recipient of certain kinds of acts," then "everyone must have the duty to refrain from that act in all circumstances. " 47 That duty rests on some notion of what is right and wrong that binds all people. In his criticism of Robert Unger's Politics, Galston reveals another angle of his conception of the good society. In responding to four Unger theses, Galston makes the following points. First, "human beings are naturally drawn together into political communities whose goals, moreover, include such natural ends as survival, security and material adequacy. " 48 These goals necessarily "impose certain con­ straints" on the shape of political institutions and policies. Second, Galston defends the benefits of hierarchies, namely, "the authority of parents over children, teachers over students, skilled artisans over apprentices, and more generally the authority of those who have special knowledge or competence. " 49 Third, Galston defends "revi­ sion-resisting contexts" such as indissoluble marriage because of the way it fosters intimacy and personal growth. Fourth, political change is not analogous to scientific change. "Without the practical familiarity born of habit, political propositions cannot be rendered effectively binding on a community. Excessive openness to revision undermines the very foundation of law, and with it, the very possibility of a community not ruled by force. " 5° Finally, in a general comment on Unger's modernist theory, Galston counsels against cultivating infinite longing for finite things. "It is sounder," Galston writes, "to eschew the idolatry of this world, to insist that infinite longing can find its satisfaction only in an infinite object, and to acknowledge that in the absence of such an object, man truly is a useless passion. " 5 1 What sets Galston apart from many defenders of liberalism is his frank admission that liberalism is a regime and thus a political commu­ nity with a certain bias. "Aristotle was right," says Galston, "core political principles shape the character of every aspect of the commu­ nity. ''52 Liberal principles do have an impact on the lives of individuals, families, and groups. Galston gives six examples to illustrate his point. First, the definition of what will remain in the private sphere "is largely a public, political determination. " For example, constitutional law extends "the sway of liberal public values throughout the society. " 53 Liberal elites, says Galston, even use constitutional law at times and other means to override the public influence of the traditional moral

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convictions held by ordinary Americans. As examples of this ten­ dency, Galston cites the "dismantling [of] long-established practices such as school prayer, restraints on pornography, and prohibitions against homosexuality and abortion-a process that has evoked strong passions." 54 Liberal elites are persuaded, says Galston, that a liberal state can survive quite well without some public recognition of religion and traditional morality.55 This is the reason why elites see no danger in flouting the long-standing moral convictions of many Americans. Second, liberal principles exert an "informal gravitational influence on individuals and institutions." 56 Galston believes that the Roman Catholic Church in the United States has been significantly influenced by the liberal public culture. Witness the extraordinary recent meeting in the Vatican between U.S. Catholic bishops and representatives of the Pope: The Roman prelates inveighed against what they saw as the laxity of the American Church. American bishops responded with a fascinating disquisition in which they pointed out, inter alia, that liberal political culture encourages rational criticism of all forms of authority, a tendency the American church is not free to disregard. The notion of unquestioned authority . . . is almost unintelligible to U.S. Catholics and the American Church has been significantly reconstructed in response to the influence of liberal public culture. 57

Galston means, I think, that Catholics tend to look at authoritative teachings on faith and morals through the prism of such concepts as autonomy, choice, rights, subjectively held "values," and "historical consciousness." Another example: "The core liberal notion of free choice and contractual relations have permeated the previously sacra­ mental understanding of marriage and the family. The notion of an irreversible, constitutive commitment has been corroded by notions of liberation and autonomy; 'till death do us part' has been replaced by 'till distaste drives us apart.' " 58 Still another example of the way liberal principles exercise a harmful gravitational pull on religion becomes immediately evident from re­ flecting on the implications of one key principle in Rawls' s political theory: namely, the moral power "to form, to revise and rationally pursue a conception of the good. " 59 As already mentioned, belief in revealed religion requires the willingness to receive God's truth rather than to form a conception of the good for oneself. Third, "ways of life that require self-restraint, hierarchy, or cultural integrity are likely to find themselves on the defensive threatened with

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the loss of both cohesion and authority. ' ' 60 If Galston is correct, then revealed religions will necessarily experience difficulty in maintaining the purity of their teachings and practice in a liberal society. Recall that even John Rawls now admits that some worthy ways of life may lose out in a liberal society. 61 Fourth, even in a liberal society, the political still has primacy, often in the area of religion. Locke clearly subordinates practices mandated by religious belief "to the requirements of civil peace and order. " 62 Galston points out that the U.S. Supreme Court has done the same. 63 Furthermore, it is important to note that liberalism does not remove religion from public scrutiny. "Indeed, twentieth-century First Amendment litigation is a testimony to the multifaceted tension be­ tween particular religions and the common polity. " 64 Fifth, the "cultural reflection" fostered by liberalism may have negative effects on people's ability to maintain commitments resting on tradition, unquestioned authority, and faith. . . . Any liberal commitment to key elements of both Socratic and Enlightenment rationalism has important corrosive effects on a wide range of psycho­ logical and social structures. " 65 "In short," says Galston, "liberal public principles should be seen as more than simply overriding but less than fully pervasive," but still "pervasive in the sense that they structure a set of influential tenden­ cies in reference to which all activities and choices are compelled to be defined. " 66 There is absolutely no doubt that the liberal state is not neutral but is a regime that endorses a substantive notion of the good but "consistent with a very considerable measure of social diversity. " 67 The scope for diversity does allow even very traditional groups such as Orthodox and Hasidic Jewish groups to survive and even thrive. In his article on Tocqueville, Galston says that Christianity has been considerably weakened since the 1830s under the influence of liberal principles. 68 This weakening is not irreversible, according to Galston, because "key features of liberal societies make possible a substantial measure of withdrawal and insulation for dissenting groups. " 69 Religious institutions, Galston implies, must become aware of liberalism's influence and take appropriate measures to maintain their integrity. Liberal society should attempt "to mute the coercive consequences of its own unavoidable biases. " 7° For example, public education in the liberal state need not infuse all students with a Socratic critical attitude toward the ways of life in which parents have educated their children. "On the level of political practice ways must be found to de-escalate

William Galston

1 77

the conflict between traditionalism and juridical liberalism. On the level of political theory an authentically liberal version of morality and the good must be rearticulated and linked-so far as possible-with the traditionalist understanding. " 7 1 For example, juridical liberal the­ ory would support Justice Harry Blackmun's argument in Bowers v. Hardwick (1986) that the right to commit sodomy is one of the fundamental liberties guaranteed by the Constitution. Galston disputes this contention and suggests that state-level relaxation of antisodomy laws would generate much less controversy between juridical liberal­ ism and traditional morality. At least for the sake of progressive politics, Galston insists, liberal elites must not alienate Americans who have a traditional understanding of morality. Besides muting the antagonism between juridical liberalism and traditional morality, contemporary liberals have the theoretical task of specifying the virtues required by a liberal polity and of linking those liberal virtues with religiously grounded traditional morality. In a 1988 article Galston spelled out his version of liberal virtues. He began by saying that every political community needs courage, law-abidingness or the settled disposition to obey the law, and loyalty or "the devel­ oped capacity to understand, to accept and to act on the core principles of one's society. " 72 Virtues specific to a liberal society are indepen­ dence, tolerance, and respect for individual excellences and accom­ plishments. Education to independence requires strong family life, which in turn requires self-restraint, fidelity, and the willingness to make sacrifices for the sake of bringing up children. "Tolerance," says Galston, "does not require belief that every life-plan is equally good." It rests rather on the conviction that the pursuit of the better course should be (as in many cases can only be) the consequence of education or persuasion rather than coercion.' '73 A liberal economy demands the entrepreneurial virtues of imagina­ tion, initiative, drive, and determination; the organizational virtues of punctuality, reliability, "civility toward co-workers and a willingness to work within established frameworks and tasks''; and three generic virtues required by any market economy-the work ethic, the capacity to delay gratification, and the ability to adapt, to change jobs and place of residence. The virtues of liberal politics are "the capacity to discern and the restraint to respect the rights of others," "the capacity to evaluate the talents, character and performance of public officials," and "the ability to moderate public desires in the face of public limits. . . . " 74 Liberal virtues are not republican virtues. Citizens have neither a duty

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to participate in politics, nor a duty "to subordinate personal interest to the common good systematically. • • 7s The virtues of leadership within a liberal polity are as follows: the "patience to work within the limits imposed by social diversity and constitutional limitation," the "capacity to forge a sense of common purpose," the "strength to resist the temptation to pander to the public whim," and the "capacity to narrow the gap between public preference and wise action and between principles and practices," and lastly "the disposition-and developed capacity-to engage in public discussion. " 76 An indispensable means of engendering the liberal virtues is civic education. Whereas the purpose of philosophic education, says Gals­ ton, is "the pursuit of truth," the goal of civic education is "rather the formation of individuals who can effectively conduct their lives within, and support, their political community. " 77 This education, Galston affirms, should be "far more rhetorical than rational. " 78 Liberal civic education must not only engender the requisite virtues "but also the widest possible acceptance of the need for such excellence in the conduct of our public life.''79 Tension between civic education and parental education should be minimized by the state. Galston argues against Amy Gutmann's view that civic education should be so struc­ tured as "to foster in children skeptical reflection on ways of life inherited from parents or local communities. " 80 Galston believes that education in the home will ultimately benefit liberal society. In fact, he says " . . . the greatest threat to children in modem liberal societies is not that they will believe in something too deeply, but that they will believe in nothing very deeply at all. Even to achieve the kind of free self-reflection that liberals prize, it is better to begin by believing something. " 81 While liberal institutions must attempt to provide a civic education in the liberal virtues, Galston expects educational help from the family and to some extent from religion. Galston is well aware that modern morality and Christian morality converge in some areas and diverge in others. In an article on Tocqueville and religion, Galston implicitly admitted that Christian morality restrains the passions whereas mod­ ern morality tends to indulge them. He also sees that the latter legitimates self-interest, while the former teaches people to love their neighbor as themselves. Modern morality indulges public opinion, while religious leaders such as Pope John Paul II see it as a very great danger to faith and morals. 82 In several articles Galston argues that the liberal tradition itself does

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provide a foundation for virtue. "Indeed it suggests three conceptions of intrinsic individual excellence, overlapping yet distinct. "83 These conceptions are derived from Locke, Kant, and from Romanticism through John Stuart Mill, Ralph Waldo Emerson, Henry David Tho­ reau, and Walt Whitman. Locke's understanding of excellence is that of rational liberty or self-direction. Certain unspecified traits are needed to be independent and to exercise liberty informed by reason. The Kantian conception of excellence, Galston says, is "to make duty the effective principle of personal conduct and to resist the promptings of passion and interest insofar as they are incompatible with this principle. "84 The Romantic conception of excellence is simply "the full flowering of individuality. "85 In commenting on these liberal con­ ceptions, Galston admits that the Lockean and Romantic concep­ tions-especially the latter-can lead "to a wide range of deliberative outcomes." The only common core of these liberal positions is "a vision of individuals who, in some manner, take responsibility for their lives. "86 The presentation of liberal virtues or "collectively held moral con­ victions" is a difficult enterprise. It depends on the proper civic education, character formation in the family, and some respect for religion. 87 Respect for binding moral standards, Galston adds, also depends upon behaving decently toward foreign nations. "If we apply the pure principle of collective selfishness in our dealings with the rest of the world, then the moral and psychological foundations of domestic cooperation are eroded. "88

Conclusion Galston has made a significant contribution to contemporary liberal theory by his penetrating criticisms of leading liberal theorists such as John Rawls, and by offering a very thoughtful defense of liberalism. In showing that the liberal state is a regime with a gravitational pull on nonpublic principles, he has offered valuable insights to political lead­ ers, political theorists, theologians, and church leaders. Finally, his advocacy and explanation of liberal virtues is a good beginning. Galston, however, has not persuaded me that the liberal tradition has the philosophical resources to ground a theory of virtue adequate to the needs of a liberal polity. In my judgment Galston does not adequately demonstrate that any strand of the liberal tradition provides a solid fonndation for all the

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virtues required by a liberal regime. Galston's writings are usually very specific and concrete ; however, in this area of moral foundations, he remains general and abstract. Laying a philosophical foundation is especially important because Galston does not place any great hope in the vitality of the Christian tradition as support for the liberal virtues. much less the classical or Christian virtues. Galston explains: "If America is no longer now as it was in Tocqueville's time, a Christian nation, then Tocqueville's linkage between Christianity and the moral basis of liberalism-however historically accurate-cannot serve as our point of departure. Liberalism must examine its innate resources without recourse to specific theological support. " 89 Galston believes that Christian teachings in tension with liberal principles tend to lose their grasp on the mind and hearts of Christians. A Christianity that accommodates itself to the spirit of the age loses something of its leavening power in a liberal society. A modified Christianity cannot oppose disordered passions and immoderate self-interest with the same effectiveness as a vital orthodox Christianity. Moreover, Galston notes, liberal elites have been successful in progressively excluding the influence of religiously grounded beliefs from public life. 90 These elites operate from the proposition that a liberal polity can make do without some public recognition of religion and traditional morality. 9 1 Because of the internal weakening of Chris­ tianity and the general opposition of educated elites to the influence of religion on public and civil life, Galston does not expect Christianity to play a significant role in providing moral foundations for the liberal state. He does, however, try to persuade liberal theorists to lessen their opposition to the public influence of religion for the sake of recovering progressive politics. A liberal regime must respect tradi­ tional religion and moral sensibilities to avoid a divisive backlash from ordinary American citizens.92 In raising a doubt about whether there is a solid foundation for the liberal virtues in the philosophy of Locke, Kant, et al., I do not mean to take anything away from Galston's achievement. What he says about the importance of family, civic education, and the meaning of liberal virtues should be persuasive to many citizens, perhaps for a variety of reasons. Nonetheless, the project of providing adequate foundations for liberal virtues may still, in the final analysis, point beyond the political philosophy of modem liberalism itself.

William Galston

18 1

Notes I . William A. Galston , "Moral Personality and Liberal Theory " : John Rawls's 'Dewey Lectures,' Political Theory 10 (1982) , p. 51 0. 2. William A. Galston , Justice and the Human Good (Chicago : University of Chicago Press, 1980) , pp. 4-5. 3. Justice and the Human Good, p. 1 14 . 4 . Justice and the Human Good, p. 263. 5. Justice and the Human Good, p. 263 . 6. "Moral Personality," p. 5 1 1 . 7 . "Moral Personality ," p . 5 1 2 . 8. "Moral Personality ," p. 5 1 5 . 9. "Moral Personality," p. 5 15. 10. "Moral Personality," p . 516. 11. Justice and the Human Good, p. 14. 12. Justice and the Human Good, p. 14. 13. Justice and the Human Good, p. 16. 14. "Moral Personality," p. 517. 15. William A. Galston, "Pluralism and Social Unity, " Ethics 99 ( 1 989) p. 712. 16. Aristotle, Ethics, Book X ( 1 180a4-5) . This excerpt from Aristotle is quoted by Galston in Justice and the Human Good, p . 156. 17. "Pluralism and Social Unity ," Ethics 99 ( 1989) p. 7 1 3 . 18. "Pluralism and Social Unity ," p. 71 4. 19. "Pluralism and Social Unity ," p. 714. 20. "Pluralism and Social Unity ," p . 724. 2 1 . "Pluralism and Social Unity," p. 714. 22. "Pluralism and Social Unity, " p. 7 1 5 . 23 . "Pluralism and Social Unity," p. 7 1 6 . 24. "Pluralism and Social Unity ," p. 7 16. 25 . "Pluralism and Social Unity," p. 719. 26. "Pluralism and Social Unity , ' ' p. 724. 27. "Pluralism and Social Unity , ' ' p. 724. 28. "Pluralism and Social Unity, " p. 725. 29. William A. Galston, "Defending Liberalism ," American Political Sci­ ence Review 76 ( 1982) , p. 622. 30. "Defending Liberalism," p. 622. 3 1 . William A. Galston , "Public Morality and Religion in the Liberal State . " PS 19 ( 1 986), p. 804. 32. "Public Morality , " p. 804. 33. " Public Morality ,'' p. 8 10. 34. "Defending Liberalism," p. 627. 35. "Public Morality,'' p. 8 1 8 .

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36. "Defending Liberalism, " p. 627. 37. "Defending Liberalism," p. 627. 38. William A. Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State (New York: Cambridge University Press, 1991), p. 173 . 39. Liberal Purposes, pp. 174-77. 40. Liberal Purposes, p. 177. 41. Liberal Purposes, p. 179. 42. Liberal Purposes, p. 177. 43. "Defending Liberalism," p. 628 . 44. William A. G alston, "Equality of Opportunity and Liberal Theory," in Justice, Equality, Here and Now, Frank Lucash (ed.) (Ithaca, N.Y. : Cornell University Press, 1986), p. 93. 45. William A. Galston, "On the Alleged Right to do ' Wrong': A Response to Waldron, " Ethics 93 (1983):320-21. 46. Justice and the Human Good, p. 127-42. 41. Justice and the Human Good, p. 137. 48 . William A. Galston, "False Universality: Infinite Personality and Finite Existence in Unger's Politics, " Northwestern Law Review 81 (1987):761. 49. "False Universality," pp. 761-62. 50. "False Universality, " p. 763 . 51. "False Universality," p. 764. 52. Liberal Purposes, p. 292. 53. Liberal Purposes, p. 292. 54. W illiam A. Galston, "Tocqueville on Liberalism and Religion," Social Research 54 (1987):517. 55. "Tocqueville, " p. 517. 56. Liberal Purposes, p. 292. 57. Liberal Purposes, p. 292. 58. Liberal Purposes, p. 292. 59. "Pluralism and Social Unity, " p. 712. 60. Liberal Purposes, p. 293. 61. Liberal Purposes, pp. 100, 146, 290, 291. 62. Liberal Purposes, p. 293. 63. I would add that the Supreme Court has allowed some minority religious groups to engage in religious practices contrary to the law, from Sherbert v. Verner 374 U.S. 398 (1963) to Wisconsin v. Yoder 406 U.S. 205 (1971). That may be history, however, in the light of a recent Supreme Court decision,

Employment Division, Department of Human Resources of Oregon, et al. v. Smith et al. 108 L.Ed.2d 876 (1990). 64. Liberal Purposes, pp. 293-94. 65. Liberal Purposes, p. 294 66. Liberal Purposes, pp. 295-96. 61. Liberal Purposes, p. 295.

68. "Tocqueville," pp. 501-18.

William Galston

69. 70. 71. 72.

Liberal Purposes, p. 295. Liberal Purposes, p. 298.

183

"Public Morality and Religion in the Liberal State," p. 820. W illiam A. Galston, "Liberal Virtues," American Political Science Review 82 (1988): 1281-1282. 73. "Liberal Virtues, " p. 1282. 74. William A. Galston, "Civic Education in the Liberal State," in Liberal­ ism and the Moral Life , Nancy L. Rosenblum (ed.) (Cambridge, Mass: Har­ vard University Press, 1989), p. 93. 75. "Liberal Virtues," p. 1284. 76. "Liberal Virtues," p. 1285 77. "Civic Education," p. 90. 78. "Civic Education, " p. 91. 79. "Civic Education," p. 95 . 80. "Civic Education, " p. 99. 81. "Civic Education," p. 101. 82. "Tocqueville, " p. 511. 83. "Liberal Virtues, " p. 511. 84. "Liberal Virtues," p. 1286. 85. "Liberal Virtues," p. 1286. 86. "Liberal Virtues," p. 1287. 87. Justice and the Human Good, p. 279. 88. "Liberal Virtues," pp. 245-46. 89. "Tocqueville," p. 518 . 90. "Tocqueville," p. 517. 91. "Tocqueville," p. 517. 92. Galston, of course, does not attempt to reform Christianity. But his remarks about the inevitable negative influence of liberal principles on religious belief and practices can be highly instructive to religious leaders. They might be able to learn what kinds of precautions must be taken to preserve religious integrity. For example, church leaders need to keep in mind the American tendency to place such an emphasis on autonomy and rights that the authorita­ tive character of the Bible, tradition, and church authority is weakened. It is ironic that a secular liberal theorist such as Professor G alston is more aware of the gravitational pull of liberal principles on Christianity than many leading theologians.

Index abortion, 45, 50, 51-52 Ackerman, Bruce, 61, 152 action: contexts of, 127; individual, 103 adjudication, 23, 27, 29, 116, 125. See also legal formalism After Virtue, 97, 98, 102 aggregate interests and welfare, 24, 69, 89 ; as societal aim, 3 ; violation of individual rights by pursuit of, xii, 2, 46 alethiology, 138 Altman, Andrew, 133 American Constitution Law, 136 American Public Philosophy Institute, xvii Anarchy, State, and Utopia, 59, 69 Anscombe, G . E., 57 anthropology, normative, 127, 128 antiestablishment clause (of First Amendment), 50 anti-individualism, 156 antiperfectionism, xi, xii-xiii, 40, 104, 152, 161; Raz's criticism of, 152 Aquinas, Thomas, 49, 98, 103, 152; harmless immorality and, 157-58, 163 Aristotelian tradition, 101, 119-20, 165 Aristotle, 39, 45, 55, 98, 103, 152; on common morality, 168-69 ; on language, 95 ; method of, 165; on political community, ix, 174

associations, 82, 87; types of, 94 atheism, xi Athens, Periclean, 102-3 Augustine, 49, 54, 103 autonomy of persons, 43, 44, 75, 92, 136 ; as basis of equality, 4, 8, 36, 46, 47, 49 ; choices for living, xi, xiii, 33, 35, 48, 51, 52, 77, 83, 154, 162; definition of, 47 ; metaphysical concept of, 79-82, 86 ; as moral ideal, 48, 49, 52, 53, 61-62, 78, 153-54, 160, 161 ; opportunities for choice, 155, 156, 173 ; perfectionist view of, 159-60; privacy and, 51 avoidance, 6, 14 Bayle, Pierre, 49 Benedict, St., 101 Bentham, Jeremy, 23, 121 ; as utilitarian, xi, I Berman, Harold, 148 Bernstein, Richard, 142 bigotry, 49 Blackmun, Harry, 177 Bloch, Ernst, 132 Bloom, 145 Bowers v. Hardwick, 104, 177 Brennan, William J. , 15 1, 152, 161 Burke, Edmund, 107, 139 Burrows, Jo, 142 Calvinism, 43 capacities of persons, 44, 48, 51, 79 ; protection of, 50 1 85

1 86 categorical force, 32, 36 Catholicism, 43 , 175 chain of being, 44 challenge model of ethics, 34-35, 36-37 Christianity, x, 166, 169, 176, 178, 180 Cicero, 9 1 , 95 coercion. See liberal coercion cognitive theory, 148-49 communitarianism, 54, 92, 88-9 1 , 139 community. See political community conscience, right of, 52-53 ; freedom of, 49, 50; sovereignty of, 54 consequentialism, 160, 164 constitutionalism, 45 , 53, 174 constructive interpretation of law , 25-27 Contingency, Irony and Solidarity,

135, 139 contraception, 45 , 50, 5 1 contract theory o f liberalism. See social contract theory conventionalism, 27-28 correspondence theory, 138 critical interests, 32-33, 41 Critical Legal Studies Movement (CLS), 1 1 3 , 1 30, 134, 136 The Critical Legal Studies Movement, 1 13 , 1 1 4, 120, 126

Cultural Revolution, Chinese, 129 Davidson, Donald, 146 degradation of persons, 43 democracy, nature of, 4 Dennett, Daniel, 146 deontological liberalism, 76-78 Derrida, Jacques , 147 desert, 167, 169 desires, 48, 5 1 , 1 19, 124, 153 (see-also interests) ; acceptability of, 173 ; alteration of, 153 determinism, 146 Dewey, John, 136, 1 39, 145 Dewey Lectures (Rawls), 167 Diderot, Denis, 1 IO

Index

Difference' Principle, 10, 1 1-12, 16, 139; criticism of, 85-88, 166-67 discontinuity in perspectives, 3 1-32 Doe v. Commonwealth 's Attorney, 45 drug use and abuse, 45 duty , 173-74 Dworkin, Ronald, 23-4 1 , 47, 75 , 77, 97 , IO 1 ; antiperfectionism and , 152; writings of, 1 39 education, civic, 178 egalitarianism, xii Eisenstadt v. Baird, 45 Emerson , Ralph Waldo, 179 emotivism, 98-99 enforcement, 24, 157-58; by individuals, 64-68 Enlightenment, 97 , 98-100, 103 , 1 19, 134; criticism of, 100-106; Scottish, 103 envy , 15, 30 epistemological behaviorism, 1 37 epistemology, 136, 137, 138; liberal, 1 19, 124, 125 equality, 1 2 1 ; deviations from, 1 1-12; economic, xii ; liberal (see liberal equality) ; liberty and, 62 ; of opportunity, 10, 147, 167 ; of persons (see equality of persons) ; of resources, 36-37 equality of persons: Dworkin on, 23 , 36-37; Galston on, 173 ; Rawls on, 2, 3 , 8-9; Richards on, 44, 46, 56 essences, intelligible, 123, 126, 133 ethics, 3 1 , 33; Aristotelian, 34; good life definitions , 34-35, 38-39; Kantian (See Kantian ethics) euthanasia, 45 existentialism, 120, 127, 143 factions, 53, 54 fairness, 1 , 4, 18; of individuals, 63, 66, 68 ; in law, 29; in social rules, 7, 8, 12-13, 83-84. See also justice False Necessity, 129

Index

Feinberg, Joel, 1 63 Finnis, John, 54, 57, 1 61, 163 First Amendment (to U.S. Constitution), 49-50 formalism. See legal formalism Foundations ofAmerican Constitutionalism, 43, 53

free exercise clause (of First Amendment), 50 freedom, 2, 49, 122, 143, 167; definition of, 48, 128 ; necessity and, 143-44; of persons, 3, 8-9, 59, 155, 173 ; religious (see religious freedom) ; value of, 154, 169 Frege, 17 Freud, Sigmund, 145-46 Gadamer, Hans, 138 Galston, William, 61, 165-83 gender hierarchy, 45 general goods, 46, 51, 77, 91, 96, 101, 105 (see also good); agreement on, 165, 171-73 ; definition of, 47, 122, 132, 169 ; liberty as, 152 ; protection of, 47, 50 Gifford Lectures (MacIntyre), 98 good, xii, 125, 152; conception of, 8, 18, 38-39, 78, 79-80, 89, 103, 105-6, 172; external, 169 ; primary (see primary goods) ; right distinguished, 77-78 government. See state Graham, G ordon, 142 Greece, Homeric, 102 Greek political theory, 45 Grisez, Germain, 57 Griswold v. Connecticut, 45, 50, 51 Gutmann, Amy, 165, 178 Hale, Sir Matthew, 121 Hamilton, Alexander, 116 Hand, Learned, 23 harm principle, 46, 51, 139, 1 57; derivation of, 158-59

1 87 Hart, H. L. A., 23 Hegel, Georg W ilhelm Freidrich, 62 Heidegger, Martin, 136, 138, 144 hierarchy of being, 44-46 historicism, 110, 138, 167 Hobbes, Thomas, ix, x, 31, 62; as nominalist, 138 homosexuals, 45, 50, 51, 52 human nature, 125-29, 134, 145-46 human rights, 23, 27, 47, 59 ; definition of, 49, 124-25; derivation of, 27 , 60, 78, 174 ; duties and, 173-74; personhood as basis for, 44, 48-49 ; protection of, x, 61, 64, 78 Hume, David, 6, 99, 1 03 immoralities, harmless, 157, 163 impact model of ethics, 34 indeterminacy, 99, 109 ; in political debate, 116 individualism, 154-55 integrity. See political integrity interests, 32-33, 40-41. See also desires intimate association, protection of, 47, 51, 52 ironists, 147 Jefferson, Thomas, 49 Judaism, 169 judgment, individual, 19, 44, 48 judicial review, 45, 46, 51, 53 judiciary, 129, 140 justice: aims of, 53 ; basis of, 32; circumstances of, 6; definition of, xii, 1, 35, 36, 78, 169 ; as fairness, I, 4, 18, 8 1 , 167; perfection of procedures, 13 ; political, 5 , 13, 20, 60, 170; principles of [see principles of justice (Rawls)] ; procedural, 13, 142. See also fairness Justice and the Human Good, 166

1 88 Kant, Immanuel, xii, 44, 45 , 48 , 62, 104 ; on excellence , 179; on person, 43 , 45 , 53, 54, 56, 6 1 , 62, 63 , 80, 86, 94, 132, 145-46; on philosophy, 135, 137 Kantian ethics, 15, 17, 47 , 49 Kennedy, Duncan, 1 16 Knowledge and Politics, 1 14, l l7, 1 18 , 1 1 9, 125, 126 language , 89-90, 94-95 , 146; incommensurability of, 138; of philosophy, 137-38, 139, 141 Larmore , Charles , 61 law: distinction from politics , 1 1 3 , 1 19, 128-29 ; endogenous , 1 2 1 ; exogenous , 121 ; foundations of, 24, 1 17, 1 2 1 ; as integrity, 27, 29 ; interpretation of, 25-26, 29 ; natural (see natural law) ; neutrality of, 1 19, 123 ; purpose of, 27, 120-2 1 ; religion and, 176; rule of, 1 1 3 , 1 19, 130; social basis for, 120, 128 Law and Revolution, 148 Law in Modern Society, 1 1 7 law-making, 1 1 6 Law's Empire, 24, 139 legal formalism, 1 14-16, 1 18 , 123 legal moralism, 161 legal objectivism, 1 14, 1 15 , 1 1 6-17; assumptions , 1 18 , 123 legal positivism, 25-26, 99 legal pragmatism, 27, 28, 136 legal realism, 40, 136 Letter Concerning Toleration, xi liberal coercion, 104-5 , l l0, 153, 177 liberal constitutionalism, 46-47 liberal equality, 24, 25 , 29-3 1 Liberal Pwposes, 172 liberalism, x-xi, 1 19 , 130; as alternative philosophy, 44; alternatives to, 46, 147; communitarian (See communitarianism) ; deontological

Index (see deontological liberalism) ; effect on individuals and institutions, 175-77, 179, 180, 183; ethical foundations for, 24, 3 1-39, 69, 139-40; failure of, 103-6; formalist/objectivist criticism of, 1 14-18 , 123, 129 ; morality and, 2, 24-25 , 156, 174-77 ; neutrality and, 18, 3 1 , 32, 37-38, 48, 54, 77, 1 19, 152, 154, 165 , 171 , 180; rationality and, 1 19 ; values of, 3 1 , 47, 48, 139-40, 157, 165 , 168, 173, 177-79, 180 Liberalism and the Limits of Justice, 76, 83 , 89, 90 liberties , 10 liberty, 62 , 153. See also autonomy of persons ; freedom lifestyle choices . See autonomy of persons linguistic turn , 137-38, 139 Locke , John, ix, 3 1 , 44, 46, 62 , ·1 52; chain of being and, 55; on excellence, 179; formulation of liberal principles by, x, xii, 49, 134, 179; on property rights, 68 ; on religious toleration, 1 7 1 , 176 Lonergan, Bernard, 136, 148-49 Luther, Martin, 138 Macedo, Stephen, 61 MacIntyre, Alasdair, 45 , 54, 97-l l l , 145 Madison, James , 49, 54 majoritarianism, 46; evils of, xii, 43 , 46 markets and moral codes , 63 materialism, 145 A Matter ofPrinciple, 24 maximin rule , 15-16, 17 meaning, privatization of, 140 medieval political views. See premodem philosophies metaphysics, 1 37, 165 , 170 Michael H. v. Gerald D. , 104

1 89

Index

Mill, John Stuart, xi-xii, 62, 97, 104, 119, 179 ; harm principle of, 157 mind, 136, 146 minimal state, 59, 60-69 ; formation of, 63-65; property ownership and use, 68-69 moral enquiry, 97-98, 101, 104, 106-8; indeterminacy in, I 16; mechanism of, 106-7; tradition­ based, 102-3 moral powers, 8, 14, 18, 168-69 moral rights. See human rights morality, 17, 31, 33, 171, 178 ; derivation of, 97, 99-100, 103, 106, 109-10; language for, 94-95 ; objective, 107; of person, x-xi, 30, 33, 63, 167 ; political (see political morality); public (see public morality) ; traditional, 167, 168, 174-75, 177 The Morality of Freedom, 152 mysticism, 138 The Naked Public Square, 91 national community of principle, 43 natural law, x, 90, 163 ; principles of, 40, 43 ; public, 121-22, 124, 132 ; rejection of, 23 Neuhaus, Richard, 91 neutrality. See liberalism, neutrality and; state, neutrality of Nietzsche, 98, 100-101, 107, 108, 144, 145-46 nihilism, 26, 103 nominalism, 44, 132, 138 Nozick, Robert, 59-73, 75, 77, 139, 166 ; antiperfectionism and, 152

objectivism. See legal objectivism objectivity, 137 obligations, 28, 166 On Liberty, xi ontology, 138 OP curves, 11

Original Position (Rawls), 3, 4, IO, 12-16, 17-18 ; criticism of, 80-82, 84-85 Orwell, 147 Passion: An Essay on Personality,

120, 127 perfectionism, 77, 104, 152-54 ; minimal, 165, 172 person: associations as shaping, 76, 82, 87-91, 122-23, 126 ; autonomy of (See autonomy of person) ; betterment of, xi; capacities of (see capacities of persons) ; change and, 126 ; degradation of (see degradation of persons) ; desires of (see desires); equality of (see equality of persons) ; Kantian view of, 43, 45, 62, 63 ; metaphysical concept of, 78-79, 85-89, 125-26, 170; morality of (see morality) ; political conception of, 5-6, 9, 14, 144; ratification of identity, 122-23, 127; respect for (see respect for persons) ; socially imposed roles, 44, 48, 127

Philosophy and the Mirror of Nature,

135, 136 philosophy, criticism of, 136, 143, 147 Plato, 33, 55, 103, 152; method of, 165 ; on political community, ix pluralism, 99, 119, 163, 165, 173 ; moral, 153, 154, 161-62 political activity, 30, 142; goal of, 151, 168 political community, 5-6, 53, 87; purpose of, ix-x, 2, 77 political culture, 4 political integrity, 28 Political Liberalism, l political morality, 27, 29, 47, 152. 171-73 political philosophy, 17, 24, 91, 102, 107-8, 119, 133-34 ; as approach to truth, 165-66 ; basis of, 120 ;

1 90 classical, 125, 134; culture­ specific, 167, 170; epistemology­ based, 135; historical and societal pressures on, 123; standards of right, 170; subjects of, 118 politics, 142, 144; disenchantment in, 144-45; distinction from law, 116, I 19 , 128-29 ; effect on religion, 176 ; facilitative, 151 , 152 ; social basis for, 120 pornography, 45 positivism, 23 "Post Modernist Bourgeois Liberalism, " 144 postmodernism, 129 power, 128 pragmatism, 17, 143. See also legal pragmatism premodern communities, 43 premodern philosophies, x, 44, 46, 130 primary goods, 11, 14-15, 18, 122-23 , 166 principles of justice (Rawls), 3, 4-8, 10-12, 20; choice of, 16-17, 81 ; derivation of, 10, 12; public knowledge of, 7 privacy, right to, 45, 50-53, 92 procedural justice, 13, 142 procedural republic, 77, 78 , 81, 83 property, 122; distribution of, 29-30, 62, 69, 85-87; ownership of, 68 , 87, 94 prostitution, 45, 50 Proust, 147 public morality, 166, 1 79 ; religiously based, 43, 50 punishment, 24 Quine, W. V. , 17 racism, 67, 139 rationalism, 97, 100, 103, 108 ; effect on beliefs, 176 rationality, 18, 118 , 123-24, 128, 129 ;

Index

criticism of, 140; as liberal good, 169 , 172 ; of persons, 48 , 49 ; of traditions," 106-8 Rawls, John, xii, 1-21, 77, 97, 104, 136, 152, 165, 171 , 176; antiperfectionism of, 152 ; concept of person, 48, 75-76, 79, 80, 82, 86, 87; contract theory of, 43, 45, 166; on foundation of liberalism, 139-40; Galston's critique of, 166-70; ratification of identity, 122; view of justice, 17, 53, 78, 81-82, 85, 88 ; writings of 23, 135, 152. See also Original Position; principles of justice (Rawls) Raz, Joseph, 54 , 131-32, 151-64 reality, 138 reason, practical, 123-25, 140, 160 reasonableness, 15, 18, 48 reconciliation, 2, 13 reflection, capacity of. 48 reflective equilibrium, 5 reform, public, xii Regan, Donald, 160 relativism, 98, 107, 161 religion, 91 ; as basis of morality, 49, 99 ; definition of, 50; liberalism's effect on, 175-76, 180, 183 ; received concept of good, 169 ; subordination to politics, 176, 180 religious freedom, 49, 167, 171 resources, 30, 31, 36; distribution of, 62-63, 167 respect for persons, 61. See also autonomy of persons; Dworkin on, 23-24; Nozick on, 61, 62, 63; Raz on, 131-32 ; Richards on, 44, 45, 47, 48 Richards, David A. J. , 43-55, 122, 152 right, xii, 18, 77. See also justice; priority of, 169 rights. See human rights Roe v. Wade, 45, 52

191

Index

Romanticism, 179 Rorty, Richard, 135-50 Rousseau, Jean-Jacques, 44, 62, 99 ruling theory, 23 Russell, 17 Ryle, Gilbert, 17, 146 Sadurski, Wojciech, 159 , 163 Sandel, Michael, 54, 75-96 Sartre, Jean-Paul, 143 self. See autonomy of persons; person semantic theories, 25, 40

Sex, Drugs, Death and the Law, 43 Sklar, Judith, 139, 142 social contract theory, 31, 38, 43, 45, 47, 64; Rawls's formulation, xii, 12-13, 32, 83-84, 166 social cooperation, 7-8, 11, 18, 169-70, 172; standards for, 12-13 social forms, 155 social theory, 136, 142, 144-45, 147 society: change and, 126, 129-30; common basis for action, 172-73; conflict containment by, 117, 128 ; criteria for organization of, 3 ; foundations of, 148, 174 ; nature of, 3, 4, 12, 134; stability of, 16-17; structure of, 5, 9 , 11, 61, 120, 174 Socrates, 103 solidarity, 142 Stanley v. Georgia, 45 state: form of government, x, 129-30; formation of, 63-64; interests of, 50; minimal (see minimal state); neutrality of (see state neutrality); principles of government, 3 ; protection of rights by, x, xiii, 47, 64-67, 151 ; purposes of, x, xii, xiii, 36, 64, 151 ; as representative, 70-71. See also society state neutrality, xii, 54 ; in imposition of values, 31, 35, 51, 77, 80, 104-5, 152, 156-57, 171 ; rule of law and,

119 ; toward individual beliefs, 47, 52, 61, 77, 80, 83 , 104-5, 151 , 171 state regulation of individual liberty, xii, 2, 46, 47, 50; compensation for, 65, 67, 68 , 72; conditions for, 28 , 30, 51 , 56, 65 , 70; enforcement of rights, 65-67; harmless immoralities, 157-58 ; imposition of standards, xi, 41, 51, 155, 156; justification for, 67, 68 ; limitations on, xi, 60, 61, 154, 156-57; personal relationships, 51 Strauss, Leo, 121 superliberalism, 120, 127 Taking Rights Seriously, 23, 24 Tanner lectures (Dworkin), 24 Taylor, Charles, 54, 138 teleology, 90, 99, 126 , 130 theology, 90-91 A Theory of Justice, xii, 1, 17, 23, 84, 135, 136, 152, 166 Thomism, 98, 108 Thoreau, Henry David, 179 Three Rival Versions of Moral Enquiry, 97, 98, 100, 108

"Thugs and Theorists," 142 Tocqueville, 176 , 178 , 180 toleration, 6, 18, 31, 37-38 , 49 , 105, 172, 177 Toleration and the Constitution, 43, 48 , 53 Toward a Genealogy of Morals, 108 tradition, 98, 106-8; ChristianRomantic, 127; test of, 108 , 109 Tribe, Laurence, 122, 136 truth, 137 Tushnet, Mark, 134 Unger, Roberto, 113-34, 141, 142, 143, 145, 165, 174 unilateralism, 27-28 universals, 119 , 125, 126 ; experiences, 138; goods, 166, 170

1 92 utilitarianism, xi-xii, 1-2, 46, 152, 163 ; economic analysis, 23 ; principle of greatest average utility, 15-16, 61 , 104 utopian theory , 28-29, 168 value, 153-54 ; choice as, 1 56 virtues , definition of, 102-3 , 177-78 vocabularies , 138, 14 1-42 ; private , 143 , 1 47 volitional interests, 32-33, 40-41 voluntarism, 37, 44, 92

Index

Waldron, Jeremy, 165 Walzer, Michael , 165 well-being, 3 1 , 153 Whitman, Walt, 179

Whose Justice? Which Rationality ?,

97, 98 , 102, 108 will , individual, 44, 100, 103 , 129 William of Ockharn, 138 Wittgenstein , 136, 139, 146 Wojtyla, Karol, 57 women, 44-45, 5 1 , 52

About the Contributors

CHRISTOPHER WOLFE is Professor of Political Science at Marquette University, and President of the American Public Philosophy Institute. He received his B.A. from the University of Notre Dame in 1971 and his Ph.D. from Boston College in 1978. He is the author of The Rise of Modern Judicial Review (1986), Judicial Activism (1990), and Essays on Faith and Liberal Democracy (1987).

is Professor of Philosophy at the College of St. Francis in Joliet, Illinois. He has published on Locke and Maritain, including "Maritain's Use of Aquinas in the Justification of Democ­ racy" in The Legacy of Aquinas (1994).

JOHN RITTINGER

J. BRIAN BENESTAD is Professor of Theology and Religious Studies at the University of Scranton. He is the author of The Pursuit of a Just Social Order (1982) and numerous articles on the subject of virtue and the common good. GERARD v. BRADLEY is Professor of Law at the University of Notre Dame Law School. He is the author of Church-State Relationships in America (1987) and other articles on constitutional theory and legal philosophy. ROBERT P. GEORGE is Associate Professor of Politics at Princeton University. He received his B.A. from Swarthmore College, his M.T.S. and J.D. from Harvard University, and a D.Phil. from Oxford Univer­ sity. He is the author of Making Men Moral (1993), and a member of the United States Civil Rights Commission.

is Assistant Professor of Philosophy at the Center for Thomistic Studies, University of St. Thomas (Houston). He has also taught at the University of Notre Dame and served as a professional staff member in the U.S. House of Representatives. TERRY HALL

193

194

About the Contributors

RUSSELL H ITTING ER is Associate Professor in the School of Philosophy at the Catholic University of America, and adjunct research fellow at the American Enterprise Institute in Washington, D.C. He is the author of A Critique of the New Natural Law Theory (1987).

received his A.B. from Harvard, M.Litt. from Edinburgh, and Ph.D. in philosophy from Harvard in 1988. He is currently Assistant Professor of Philosophy at Clark University in Worcester, Massachusetts. The editor of Other Selves: Philosophers on Friendship (1991), his most recent publications in philosophical and scholarly journals have investigated Aristotle's theory of friendship and civic friendship. MICHAEL PAKALUK

DAVID WAGNER received his B.A. in History and his M.A. in Medieval Studies from Yale, and his J.D. from George Mason University. He has been an editorial writer, government speechwriter, and most recently Director of Legal Policy at the Family Research Council. He has written about politics for National Review and Crisis, and about opera for The City Journal. R. GEORGE WRIGHT holds an A.B. from the University of Virginia and a Ph.D. in Political Science and J.D. from Indiana University. He is Professor of Law at the Cumberland School of Law, Samford Univer­ sity, where he has taught constitutional law, legal philosophy, environ­ mental law, torts, and administrative law.

POLITICAL SCIENCE

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LfflERALISM AT THE CROSSROADS An Introduction to Contemporary Liberal Political Theory and Its Critics Editt�d by

Christopher Wolfe and John Rittinger "The 'crisis of liberalism' is incessantly discussed, but seldom have we been treated to such a lucid examination of why liberalism is in crisis. This book should be warmly wel­ comed by all who want to understand some of the main currents and cross currents of intellectual life in our time."

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"At a time when many visions of liberalism are vying for a dominance, Christopher Wolfe and John Hittinger do a great service by collecting these interpretive essays on leading expositors and critics of contemporary liberal theory. Much of the interest of the book derives from the fact that the essayists themselves are major thinkers whose ideas are likely to shape or chasten the liberalisms of the future."

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