Democracy and deliberation: new directions for democratic reform

James S. Fish kin

Yale

University

Press New

Haven

and

London

loittenfs •

l l l l I l t l l l l t R B R S I I B f l a i i a i l l l l i a i l l M I I

Copyright © 1992 by Yale University. All rights reserved. This book may not

List of i l l u s t r a t i o n s v i i

be reproduced, in whole or in part, including illustrations, in any form (beyond

Acknowledgments

that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and

ix

except by reviewers for the public press), without written permission from the publishers.

Part

Designed by Nancy Ovedovit/. and set in Sabon type by Tseng Information

H i e l i m i t s of Systematic Justice

One

Systems. Printed in the United States of America by BookCrafters, Chelsea, Michigan. Library of Congress Catalogmg-in-l'ublication Data Fishkin, James S.

1. 1

Introduction

1.2

The

P r o b l e m of Value

1.3

The

Problem of Value C o n t i n u e d : Future

Generations

The dialogue of justice : toward a seif-reflective society / James S. Fishkin. p.

cm.

includes bibliographical references and index. ISBN

0-300-05161-1

1. Justice. JC578.F56

2. Liberalism,

_L Social justice.

1992

3 2 0 ' . 0 U 1 — dc20

5

9

L4

S t r u c t u r e : Problems of Progress

1.5

Assignment: C o n f l i c t i n g Visions of Equal

1.6

D e m o c r a c y and Progress

Opportunity

I . Title.

1

19

29 35

92-15494 <;ii>

A catalogue record for this book is available from the British Library. The

Part

Two

S t r a t e g i e s of Reconstruction

paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources.

2. I

C r i t e r i a for an Acceptable Theory

2.2

Beyond l n t u i t i o n i s m

2.3

Political T h o u g h t Experiments

45 50

41

2.4

Category i : The Quest for Consent

.53

2.5

Category 2: Realistic Hypotheticais

67

2.6

Category 3: I m p a r t i a l Decision Procedures

2.7

79

Hustrations

M o r e on Category 3: Preference, U t i l i t y , and the G o o d

101

Part Three The I d e a l of a Seif-Refletth/e Society

3.1

T o w a r d Reconstruction

3.2

T h e Legitimacy Problem

3.3

Legitimacy and O b l i g a t i o n

129

3.4

L i b e r t y of Poiiticai C u l t u r e

144

3.5

The Conditions of A c t i v i s t L i b e r t y

3.6

Representation Vouchers and Deliberative O p i n i o n Polls

3.7

197

Conclusion

Notes

205

Index

233

201

115 117

165

Tables

1.

The Pure Problem of Justice

21

2.

T h e T r i l e m m a of Equal O p p o r t u n i t y

33

Figures

1.

T h e Forms of Democracy

37

2.

Decision Procedures

51

3.

O p t i o n s i n Category I

54

4.

N o z i e k ' s Scenario

75

5.

O p t i o n s for H y p o t h e t i c a l - C h o i c e Theories

83

6.

M a x i m i n w i t h a Guaranteed M i n i m u m

88

7.

U t i l i t a r i a n i s m w i t h a Guaranteed M i n i m u m

89

8.

E q u a l i t y w i t h a Guaranteed M i n i m u m

90

IIIIIIIIII

The beginnings of this book were supported by the John Simon Guggenheim Foundation d u r i n g a research leave I spent at the I n s t i t u t i o n for Social and Policy Studies at Yale U n i versity i n 1 9 8 4 - 8 5 , The book was revised and expanded as part of my research d u r i n g a year spent as a fellow at the Center for A d vanced Study i n the Behavioral Sciences at Stanford in .1987-88. 1 completed the book after my return to the University of Texas at A u s t i n w i t h support f r o m the Darrcll K. Royal Regents Chair in Ethics and A m e r i c a n Society. A l l of this assistance is gratefully acknowledged. I w o u l d especially like to thank the f o l l o w i n g people for their help over the p e r i o d 1 have w o r k e d on theories of justice: Bruce A c k e n n a n , R i c h a r d Arneson, Brian Barry, D a v i d Braybrooke, Robert D a h l , Bill Gaiston, Peter Lasiett, Sandy Levinson, Ed L i n d b l o m , Claus O f f e , D o u g Rae, G i o v a n n i Sartori, T o m Sermg, M i c h a e l W a l d , and Bernard W i l l i a m s . 1 w o u l d also like to thank T i m Terrell f o r organizing a three-day s y m p o s i u m about this b o o k at the Emory University L a w School O c t o b e r 23—25,1988. I am very grateful to all of the participants in that dialogue, w h i c h has greatly improved the final result. A r rangements are being made for the proceedings of the symposium to be published separately.

•art One •

•••••••••••••••••••••••••••••••aal

The Limits of Systematic Justice

LI

Introduction

As once-repressive regimes crumble around the globe, we see them a t t e m p t i n g to embrace liberal-democratic values. A t the same t i m e , Americans express e x t r a o r d i n a r y malaise w i t h their apparently t r i u m p h a n t political ideals. This unprecedented situa1

tion gives new urgency to the central question of contemporary political t h e o r y : Can we arrive at defensible and coherent ideals that o u g h t to guide liberal-democratic aspirations? T h i s simple question has been the focus of almost three decades o f intense w o r k in contemporary political theory. Yet this 2

e x t r a o r d i n a r y level of activity, concentrated on philosophies of the ideal or just society, has yielded inconclusive results at best. I propose, first, to offer a diagnosis of the difficulties afflicting the c o n t e m p o r a r y dialogue about the just society, and, second, to offer a proposal that avoids those difficulties, a proposal based ultimately o n the c l a i m that justice requires a certain k i n d of dialogue. We w i l l begin w i t h the dialogue about justice and move to the c l a i m that justice comes f r o m

dialogue i n w h a t i w i l l call

a "self-reflective society." The v i a b i l i t y of liberal democracy as a public philosophy has been held hostage by three false dilemmas. These overly con-

2

Sntradustion

The l i m i t s o f S y s t e m a t i c Justice

as:

to such systematic theories, I n the first t w o parts of this book 1 w i l l

and sys-

examine those impediments, arguing that theories w h i c h ignore

Leo Strauss and his popular

them fail to d o justice to the true complexity and controversiality

disciple A l l a n B l o o m w o u l d have us believe that w i t h o u t the certi-

of the subject. Part I w i l l focus on substantive impediments, part 2

tude of rationally undeniable " n a t u r a l r i g h t s , " we can have n o t h -

on m e t h o d o l o g i c a l ones.

stricted views of our possible options can be summarized absolutism tematic

versus relativism,

theory

versus

religion

intuitionistn.

versus amoralism,

ing but " r e l a t i v i s m , " where the m o r a l judgments central to West-

1

Pact 3 w i l l show h o w much can be done without

systematic

ern c i v i l i z a t i o n and democracy must be on the same f o o t i n g as

theorv. It w i l l offer a constructive argument for the first principles

those o f cultures w h i c h practice cannibalism. Others w o u l d have

of a defensible liberal society—an argument that, w i t h i n a more

us believe that unless religion is b r o u g h t back explicitly into our

l i m i t e d d o m a i n , avoids all of the difficulties discussed i n parts 1

public spaces, we w i l l have "a naked public square" in w h i c h out-

and 2.

1

society can profess to believe i n n o t h i n g at all.* A n d w i t h i n the

W h a t do 1 mean by a systematic theory? First, one that gives

camp of liberalism itself, those w h o w o u l d reconstruct a public

us a coherent picture of an ideal in clear focus, an ideal defined

1

philosophy aspire to systematic solutions, believing that a n y t h i n g less complete and determinate w o u l d amount to an " i n t u i t i o n t s m " where, i n effect, we each appeal to our personal tastes. W h e n the new versions of liberalism fall short of such grand expectations, they w r o n g l y appear to amount to n o t h i n g at a l l .

by full realization of one or more first principles that hold out exception,

Rawls calls the " p r i o r i t y defines moral

with-

one or more first principles that solve w h a t John progress

problem."

6

Second, a systematic theory

for us because we can measure h o w just

a society we have by h o w close we are to the ideal. Even if we

This b o o k w i l l chart a t h i r d way, to free the hostage f r o m these

could never fully actualize such an ideal, our progress should be

false dilemmas. It proposes foundations for liberalism that f a l l

measured, asymptotically, by h o w closely we approach i t . T h i r d ,

i n t o neither absolutism nor relativism, that are based on neither

a systematic theory should provide solutions that h o l d as a mat-

religion nor a m o r a l i s m , and that amount, in the end, to something

ter of general theory regardless of social context. They should

less than systematic theory and to something more than i n t u i t i o n -

offer the same prescriptions regardless of the d i f f e r i n g beliefs or

ism. This t h i r d way, the ideal of a self-reflective society, combines

practices i n d i v i d u a l s or groups may b r i n g to the issue of justice.

the o b j e c t i v i t y of morals asserted by the absolutists w i t h the sen-

They s h o u l d , i n other w o r d s , be context-independent

sitivity to social context asserted by the relativists; it combines

context-dependent.

the value of neutrality on religion asserted by the secularists w i t h

ditions such as resources and technology (and the lack of outside

the value of having values i n public spaces asserted by the new

interference), the principles of justice offered by systematic theo-

religious r i g h t ; and i t combines the sensitivity to social justice as-

ries do not vary in their basic substantive implications f r o m one

serted by the reconstructors of liberalism w i t h the awareness o f

society to another. In particular, they do not vary w i t h the be-

the c o n t r o v e r s i a l l y and incompleteness of those solutions asserted by i n f l a t i o n i s t s .

rather than

Given the availability of certain objective con-

liefs and practices accepted by the people w h o live in the societies being evaluated.

Let us begin w i t h the debate inside liberalism itself. Over the

I w i l l argue that there are crucial impediments, both substan-

last t w o decades, those a t t e m p t i n g to reconstruct liberalism have

tive and m e t h o d o l o g i c a l , to this k i n d of systematic theory, and

aspired to present us w i t h a systematic

theory of the first p r i n -

that the most plausible model for understanding the true com-

ciples of the just society. However, there are serious impediments

plexity of p o l i t i c a l m o r a l i t y is not the systematic liberalism gen-

4

U t e l i m i t s of S y s t e m a t i c Justice

The P r o b l e m o f V a l u e

erally aspired to, but a different model that I w i l l call " l i m i t e d

o f f e r i n g definite conclusions—prescriptions

l i b e r a l i s m . " O n this construction, three main points should be

specific guidance than w o u l d sheer i n t u i t i o n i s m .

made about the status of liberal political philosophy. First, we

S

that give far more

Briefly, I w i l l propose a solution to the p r o b l e m of p o l i t i c a l

have c o m p e t i n g first principles, "['here are fundamental moral con-

legitimacy by arguing that a self-reflective society produces o b l i -

flicts a m o n g competing ultimate principles even under the best

gations on the p a r t of all its members, instead of basing o b l i g a t i o n

conditions to w h i c h we m i g h t realistically aspire. I n other w o r d s ,

on legitimacy, I w i l l propose that we base legitimacy on obliga-

the pieces of our ideal solution d o n ' t neatly fit together even under

t i o n . T h e resulting n o t i o n of political legitimacy purports to solve

the best conditions we m i g h t realistically imagine. We have c o m -

the core issues c o n f r o n t i n g the liberal state w i t h o u t the neces-

peting "ideals w i t h o u t an i d e a l " rather than a solution to the

sity for a systematic

p r i o r i t y p r o b l e m that resolves all conflict among first principles.

social justice. W i t h i n a more limited d o m a i n , this strategy sup-

Second, we have fundamental moral conflicts in our identification

ports first principles f o r an ideal theory of the liberal state. Instead

of m o r a l progress. U is possible, in other w o r d s , for each preferred

of a systematic theory of justice, it offers a more limited theory of

state of affairs to be more just than the last but for us to end up in a

legitimate p o l i t i c a l institutions. Instead of one overall judgment

cycle where we started, v i o l a t i n g transitivity (or acyclicity). T h i r d ,

of social justice, it decomposes justice i n t o many morally appro-

instead of systematic solutions that are context-independent,

theory resolving all the substantive issues of

we

priate decisions by many people i n distinct roles in the requisite

have l i m i t e d solutions that are context-dependent. By this 1 mean

legitimate p o l i t i c a l institutions. Its distinctive prescriptions w i l l

that w h a t is m o r a l l y appropriate may vary significantly, depending

focus, not on the substance of social justice, but on the conditions

on the social practices that are widely accepted in a given society.

w h i c h must be satisfied by the institutions that must make the

W i t h i n l i m i t e d liberalism, we w i l l not aspire to resolve a l l

decisions, i n that way, my proposal w i l l avoid the full force of the

m o r a l conflicts. We w i l l not presume to settle the p r i o r i t y p r o b -

conundrums of systematic justice to w h i c h we n o w t u r n .

lem a m o n g c o m p e t i n g substantive principles. Indeterminacies and fundamental tensions a m o n g first principles are inevitable. To pre-

1.2 The Problem

sume otherwise is not to d o justice to the true c o m p l e x i t y of p o l i t i c a l m o r a l i t y . But then h o w are trade-offs among c o m p e t i n g principles to be arrived at? Can we get definite results w h e n p r i n ciples conflict and w h e n theory does not seem to define systematicpriorities? Part 3 w i l l propose a strategy that embraces these complexities, w h i l e at the same time o f f e r i n g a basis for definite prescriptions. Since Rawls, the crucial options for liberal theory have seemed to b o i l d o w n to either systematic theory or " i n t u i t t o n i s m . " I n t u i t i o n ism has been treated, essentially, as the absence of a systematic t h e o r y — a tack that seems to leave us all to trade off conflicts

of

Value

D i s t r i b u t i v e justice can be thought of as a c o n j u n c t i o n of three separate issues: (a) T h e p r o b l e m of value, or what is being d i s t r i b u t e d (b) T h e p r o b l e m of structure,

or how

that value is d i s t r i b -

u t e d — t h a t is, its shape, impersonally considered (c) T h e p r o b l e m of assignment,

or to whom

positions i n the

structure are granted, or how those positions are rationed o r given out These three issues, together, define justice within

a given soci-

a m o n g principles as we see fit. I n part 3, we w i l l see that there are

ety. I n a d d i t i o n , there are, of course, issues about justice or injus-

other o p t i o n s . It is possible to abandon systematic theory w h i l e

tice i n the relations among societies. However, we shall see that

fbs

The fmhhm

l i m i t s ef Systematic Assise

©S ¥ s b e

7

the task is d a u n t i n g enough, w i t h o u t the further complexities o f

if we depart systematically f r o m actual preferences, we face an

international relations.

alternative source of difficulty that is equally d a u n t i n g .

My

1

focus in part t w i l l be on the true complexities of the

Beginning w i t h theories that rely o n preference

satisfaction,

substantive issues posed by the three problems. Part 2 w i l l t u r n

we can dramatize the problem by considering some e m p i r i c a l

to the variety of possible decision procedures for resolving these

w o r k of F.. i„ T h o r n d i k e , a psychologist w h o used dollars as place

substantive issues, i n the end, I w i l l argue for a particular cate-

holders for u t i l i t y in studies of C o l u m b i a University students in

g o r y of decision procedure that can deal w i t h these substantive

the 1930s. T h o r n d i k e tells us that for the sums of money specified,

issues to the degree necessary for l i m i t e d liberalism. T h i s decision

the C o l u m b i a students w o u l d — o n average—agree to:

procedure w i l l contrast sharply w i t h the hypothetical thought experiments that have f o r m e d the basis for all recent attempts at systematic liberal theory. W h i l e the substantive and m e t h o d o l o g i cal impediments to systematic theory are indeed very great, m y theme i n part 3 w i l l be that a version of unsystematic theory can be developed that satisfies criteria for an acceptable theory that [ w i l l propose. By the problem

of value, I mean the problem of defining w h a t

we are d i s t r i b u t i n g . Is it money, utility, or w h a t Rawis calls p r i mary goods? Is it prestige or self-esteem? Is it w h a t Bruce Ackerman

calls m a n n a ?

2

For there to be an issue about the structure

Have one upper f r o n t t o o t h

S 5,0 00

pulled out Have one little finger of one

$75,000

hand cut off Eat a dead beetle one inch long

$5,000 $10,000

C h o k e a stray cat to death ( w i t h bare hands) Have to live all the rest of your

$1,000,000

life on a farm in Kansas, ten miles f r o m any t o w n

of d i s t r i b u t i o n , there has to be something that is being d i s t r i b -

These d o l l a r amounts were offered as the students' o w n precise

u t e d — s o m e t h i n g whose d i s t r i b u t i o n has a m o r a l l y relevant effect

assessments of their interests at stake in these possible events.' The i m p l i c a t i o n is that if one of the C o l u m b i a students were stranded

on human interests. In other w o r d s , to resolve the problem of value, we must have

on a f a r m i n Kansas for the rest of his life, i t w o u l d amount to

a t h e o r y for assessing human interests. I w i l l pursue these issues

a d e p r i v a t i o n equivalent to the mental suffering his peers w o u l d

in greater detail i n sections 2.6 and 2.7, but it is w o r t h paus-

experience if they had to eat t w o hundred dead beetles, each an

ing here to identify the basic issues. I w i l l treat the p r o b l e m of

inch l o n g . As i n the later development of cost-benefit

value i n terms of t w o dilemmas, one that arises immediately and

dollars are treated as place holders for utility.' Such conclusions

another that arises w h e n time is considered. W e ' l l t u r n to the

seem s t a r t l i n g t o us today because they are entirely innocent of the

second d i l e m m a i n the next section.

difficulties t h a t apply to interpersonal comparisons of the inten-

T h e immediate difficulty in assessing human interests is that If we use ivant-regarding

c r i t e r i a — t h a t is, if we rely o n criteria

that identify interests w i t h satisfaction of at least some actual

analysts,

1

sity of preference satisfaction, difficulties emphasized by Pareto, Lionel R o b b i n s , and others.' O n the other hand, if we use criteria for evaluating interests

preferences—we face various w e l l - k n o w n difficulties about inter-

that are not w a n t - r e g a r d i n g , we can interpret a change as serving

personal comparisons of want satisfaction.

someone's interests even if none of that person's o w n preferences

1

O n the other h a n d .

F u t a r e ©erse restions

The L i m i t s of S y s t e m a t i c Justice

9

agree w i t h the assessment. Such criteria face a different f u n d a -

orities of the liberal state. The institutions that have l e g i t i m a c y —

mental challenge. They must justify paternalistic inferences that,

in w h a t I w i l l cal! a self-reflective political c u l t u r e — w i l l specify

somehow, the theorist is a better judge of person X s

interests

procedures more determinate than sheer i n t u i t i o n i s m for dealing

than X is. W h i l e we m i g h t all agree that paternalism may be justi-

w i t h the inevitable fundamental m o r a l conflicts. I n d o i n g so, they

fied in dealing w i t h children (and in some other isolated cases), to

w i l l wrestle, i n particular contexts, w i t h the d a u n t i n g problems of

b u i l d paternalism into a general answer to the p r o b l e m of value

value, structure, and assignment.

w o u l d be to treat an entire adult p o p u l a t i o n as if it were composed of c h i l d r e n — a s i f the theorist (or the state f o l l o w i n g such theories)

1.3 The Problem

c o u l d routinely judge their interests better than they could.*

Vuture

T h i s d i l e m m a appears to enmesh any substantively ambitious

of Value

Continued:

Generations

assessment of human interests in one intractable controversy or

The challenge for systematic justice becomes much more dif-

another. Later, we w i l l see that the real force of this dilemma de-

ficult once time is i n t r o d u c e d . O u r notions of i n d i v i d u a l human

pends u p o n considering interests in a context-independent man-

interests have not been refined to deal w i t h problems i n v o l v i n g

ner. It depends o n the expectation that we should be able to assess

possible future people. However difficult the p r o b l e m of value

the interests of any i n d i v i d u a l simply by k n o w i n g h o w she ranked

mav be w h e n applied to the interests of the l i v i n g , once the inter-

on an index of p r i m a r y goods, or on a utilitometer, or in her

ests of future generations are taken i n t o account, new sources o f

shares of manna. For this k i n d of systematic theory of justice,

intractable conflict emerge. If we consistently tie our conception

there is no need to k n o w the social practices for dealing w i t h

of interests to personal identity, we face one sort of c o n u n d r u m ;

these matters that are generally accepted in a particular society.

if we consistently untie our conception of interests f r o m personal

My

p o s i t i o n w i l t be that if those social practices satisfy certain

identity, we face another, l b give up either conception consistently

d e m a n d i n g conditions, then they are legitimate and, for purposes

w o u l d open us to bizarre and compelling counterexamples. But

of the relevant social choices by the relevant institutions, p r o v i d e

we cannot rely on both simultaneously w i t h o u t tolerating funda-

a basis for appropriate judgment.''

mental m o r a l conflict and fundamental p l u r a l i s m . A n d we cannot

O f course, there are also severe limitations to relying on w h a t

ignore this set of issues, because no defensible theory of justice

is generally believed. Some of the worst injustices in history have

can neglect the facts that people are b o r n and die and that our

been largely accepted in their respective societies, even by their

actions may have serious effects on the interests of those yet to

victims. "

be b o r n .

1

H o w e v e r , by specifying criteria for the development of shared

The t w o conceptions of interests at issue are radically incom-

understandings, we can distinguish forms of consensus that arc

mensurable; they do not fit together i n t o a coherent image of the

suspect f r o m those that have legitimacy. When victims of injus-

interests of possible future people.' Once more, we get a k i n d of

tice accept the ideologies that rationalize their positions, it w i l l

broken image rather than a unified vision in clear focus/

be obvious that the conditions under w h i c h they came to develop

We w o u l d o r d i n a r i l y assume that person X can be harmed if

those notions fall far short of our requirements. I w i l l propose a

and o n l y if X is made worse off than X otherwise w o u l d have

context-dependent strategy that is sufficiently demanding about

been. For o r d i n a r y cases, this assumption w o r k s well enough, if

l i b e r t y of political culture that it plausibly clarifies the first p r i -

1 punch you in the nose, you are worse off a f t e r w a r d than be-

10

fufare Generations

The L i m i t s o f S y s t e m a t i c j u s t i c e

11

fore (your nose is bleeding); that is w h a t we mean w h e n we say

a large scale. Let us call this the laissez-faire

you were harmed. If, somehow, it could be s h o w n that your nose

simplify matters, we m i g h t imagine an alternative o p t i o n — l e t us

w o u l d spontaneously have begun to bleed at exactly that m o m e n t ,

call it restriction-—

regardless of whether you had been punched, most, if not a l l , of

over several generations. W i t h o u t specifying h o w this m i g h t be

the case for your having been harmed (by my punch) w o u l d evapo-

accomplished, let us imagine that our demographers and econo-

rate. Let us call this the identity-specific

mists tell us that great prosperity w o u l d likely be achieved after

notion

of harm:

X must

be made worse off than X otherwise w o u l d have been for X to have been h a r m e d .

policy o p t i o n . To

that w o u l d sharply curtail p o p u l a t i o n g r o w t h

several generations of restriction. It is w o r t h n o t i n g that the p o p u l a t i o n that would

exist after

A l t h o u g h the identity-specific n o t i o n of h a r m is b o t h c o m m o n -

several generations of p o p u l a t i o n restriction is not merely a sub-

sensical and a central part of many legal notions (particularly i n

set of the p o p u l a t i o n that w o u l d exist after several generations of

t o r t law),' it is inadequate for the evaluation of the interests of

laissez-faire. I n fact, after several generations, the overlap q u i c k l y

5

possible future people.

fades to v i r t u a l l y n i l . Consider all the contingencies involved in

Consider t w o simple cases, one at the level of i n d i v i d u a l choice,

d e t e r m i n i n g the identity of a particular generation ( w h o marries

the other at the level of social choice. First, a w o m a n has a dis-

w h o m , the t i m i n g of c h i l d r e n , w h o m the c h i l d r e n marry, and so

ease or is under medication for a given p e r i o d such that, if she

on). M y i d e n t i t y or yours w o u l d be different if any of these fac-

were to conceive a child d u r i n g that p e r i o d , it w o u l d have seri-

tors had been different (so that I could no longer speak of " m y "

ous disabilities (perhaps, for instance, she has German measles

identity i n the same sense). I w i l l accept Thomas Schwartz's cal-

and the c h i l d w o u l d be deaf). Llowever, if she were to w a i t u n t i l

culations o n this issue and conclude that after several generations,

after that p e r i o d , she could reliably expect to conceive a n o r m a l

the overlap v i r t u a l l y disappears.

c h i l d . M a n y of us w o u l d say that she should w a i t in the interests

in the same p o s i t i o n t r y i n g to condemn the policy of laissez-faire

of the c h i l d . H o w e v e r , we cannot say so w i t h i n the confines o f

as we were in a t t e m p t i n g to condemn the decision of the w o m a n

6

If this is the case, then we are

the identity-specific n o t i o n of h a r m . The child w h o is b o r n w i t h

to conceive d u r i n g the risky p e r i o d (leading to a child w i t h seri-

serious disabilities is not worse off than it otherwise w o u l d have

ous disabilities). We cannot say of all those w h o w o u l d experience

been, because i f the mother had w a i t e d , it w o u l d not have

been;

suffering and mass misery due to o v e r p o p u l a t i o n that they are

another c h i l d w o u l d have been conceived instead, as differentiable

worse off than they otherwise w o u l d have been, because were it

f r o m the first as one sibling f r o m another. W i t h i n the confines of

not for the laissez-faire p o p u l a t i o n policy, they would

the identity-specific n o t i o n , the other child is not harmed by the

been,

m o t h e r ' s decision to conceive d u r i n g the risky p e r i o d . O r , if it is

people w o u l d have existed instead. Over several generations, the

h a r m e d , we cannot formulate the h a r m w i t h the identity-specific

results of the t w o p o p u l a t i o n policies—mass misery f r o m laissez-

conception.

faire versus prosperity f r o m r e s t r i c t i o n — w o u l d be visited upon

4

5

not

have

i f the other policy had been chosen, completely different

Consider this social choice parallel: Let us imagine a t h i r d

people w i t h entirely different identities. Hence, whatever benefits

w o r l d c o u n t r y facing massive p o p u l a t i o n problems. Suppose that

or harms may be involved cannot be conceptualized w i t h i n the

demographers and economists together establish that if n o t h i n g

confines of the identity-specific n o t i o n of h a r m .

is done about o v e r p o p u l a t i o n , after several generations the c o u n -

T h i s issue is not a mere philosopher's q u i r k , i t is w o r t h n o t i n g

try w i l l face disaster—mass misery, m a l n u t r i t i o n , starvation o n

that a f l o o d of l i t i g a t i o n has bedeviled the courts on exactly this

12

The l i m i t s o f S y s t e m a t i c Justice

Future G e n e r a t i o n s

13

p r o b l e m . M a n y " w r o n g f u l l i f e " lawsuits have been b r o u g h t o n

Rawlsian p r i m a r y goods or of some other metric for benefits and

behalf of children whose prenatal defects should have been d i a g -

harms that d i d not make essential reference to preference satisfac-

nosed by a doctor or a laboratory.' Typically, the contestants c l a i m

t i o n . We can call such theories, u t i l i t a r i a n i s m included,

that the fetus should have been a b o r t e d — i f the doctor or labora-

independent

t o r y had only been sufficiently competent to i n f o r m the prospec-

is the most p r o m i n e n t theorist w h o has argued for some v a r i -

tive parents ot the child's probable disability. The difficulty faced

ant of u t i l i t a r i a n i s m precisely on the grounds that it is identity-

by the courts has been very much the same as the one mentioned

independent, that it avoids the counterexamples to w h a t I have

here. T h e o r d i n a r y way to conceptualize damages w i t h i n t o r t l a w

been c a l l i n g the identity-specific view.''

identity-

theories (for the assessment of interests). Derek Par fit

is to imagine r e t u r n i n g the injured party to the position he w o u l d

The p r o b l e m w i t h identity-independent theories is replace-

have been in had the injury not occurred. But in this case, t h a t

ability. T h i s p o i n t can be made most dramatically w i t h a sci-

p o s i t i o n is nonexistence. Nonexistence is, of course, not the same

ence fiction scenario. Suppose that I could painlessly and instan-

as death. Never to have existed is very different f r o m having a life

taneously replace

that is interrupted.

wilt appreciate it more. Furthermore, as a general matter, the new

all the readers of this book w i t h others w h o

G i v e n some of the bizarre implications of the identity-specific

readers—let us call them replacements—-will get more out of life.

v i e w o f h a r m , one clear alternative takes on new attractiveness.

O n whatever identity-independent dimension of value we are talk-

Why

not compare states of affairs by l o o k i n g at the benefits and

harms disconnected

ing about, they w i l l achieve higher scores. To s i m p l i f y matters, if

f r o m any considerations having to do w i t h the

we assume that the dimension of value is u t i l i t a r i a n i s m , then the

identities of the individuals? One theory has, of course, been par-

point is that they w i l l add more utiles to life each day than d i d

t i c u l a r l y n o t e w o r t h y for d o i n g this: u t i l i t a r i a n i s m . Setting aside

their predecessors.

problems of interpersonal comparisons,

let us suppose that we

Note that I have not specified anything about how

this tran-

had a utilitometer, or that we could make at least rough inter-

sition takes place. Perhaps, as in the movie Invasion

personal comparisons of the intensity of preference satisfaction.^

Snatchers,

T h i s w o u l d p e r m i t us to compare the disutility experienced by the

on your appearances and incorporating your roles and memories.

of the

Body

it occurs t h r o u g h creatures f r o m outer space taking

seriously disabled c h i l d w i t h the u t i l i t y experienced by the nor-

Perhaps 1 have a machine that simply fabricates new copies. O r

ma! one, or to compare the disutility experienced by all those w h o

perhaps a new, m i n i a t u r e technology is contained w i t h i n the book

suffer f r o m mass misery due to overpopulation w i t h the u t i l i t y

you are reading, a technology that w i l l go into effect as soon as

of those w h o experience prosperity f r o m p o p u l a t i o n restriction.

you reach a certain page. I n any case, the reason for posing the

U t i l i t a r i a n i s m has the property that it permits us to look at any

issue in a science f i c t i o n scenario is that it clarifies the v u l n e r a b i l i t y

t w o states of affairs and compare the benefits and harms w i t h o u t

of identity-independent views to replaceability arguments w i t h o u t

having to k n o w anything about h o w the identities of the people

raising e m p i r i c a l complications about the fear and disutility ex-

in one state compare to the identities of the people i n the other. It

perienced by those w h o are eventually replaced. (For this reason,

is w o r t h n o t i n g that w h i l e u t i l i t a r i a n i s m is the most notable ex-

you w i l l have to consider my example hypothetical or assume that

ample of this property, it is not the only possible one. Suppose w e

you have already passed the crucial page.)

compared the t w o states in terms of an i m p a r t i a l d i s t r i b u t i o n o f

O f course, replaceability arguments are not l i m i t e d to science

14

f u t u r e geaeritHaras

The l i m i t s o f S y s t e m a t i c Justice

IS

f i c t i o n . Consider this dialogue about the collectivization of Soviet

d u c t i o n of the d e f o r m e d child or to the miseries of o v e r p o p u l a t i o n

agriculture f r o m A r t h u r Koestler's novel Darkness

w i t h o u t w o r r y i n g about whether the better-off people envisioned

at Noon

(Com-

under the alternative choice are the same people. But the same

missar ivanov is addressing the prisoner Rubashov): "Yes, we l i q u i d a t e d the parasitic part of the peasantry and let it d i e of s t a r v a t i o n , i t was a surgical o p e r a t i o n w h i c h had to be done once and

for a l l ; but i n the g o o d o l d days before the R e v o l u t i o n just as

m a n y d i e d in any d r y y e a r — o n l y senselessly and pointlessly. T h e v i c t i m s of the Y e l l o w River floods i n C h i n a amount sometimes to h u n -

anonymous consideration of interests leads these theories to neglect the question of whether the people under the replacement scenario are the same as the people in the o r i g i n a l p o p u l a t i o n . The general d i l e m m a is that if we tie interests consistently to personal identity, we face the identity-specific counterexamples, but

dreds o f thousands. N a t u r e is generous in her senseless e x p e r i m e n t s

if we untie them consistently f r o m persona! identity, we face the

o n m a n k i n d . W h y s h o u l d m a n k i n d not have the rights to e x p e r i m e n t

replaceability scenario.

on

It may be w o r t h pausing to consider t w o creative efforts to

itself?" H e paused: Rubashov d i d n o t answer. H e went o n : " H a v e you ever

avoid one h o r n or another of this d i l e m m a . The first, f o r m u l a t e d

read brochures of an a n d - v i v i s e c t i o n i s t society? They are s h a t t e r i n g

by Peter Singer, aspires to avoid replaceability. I w i l l argue that

and h e a r t b r e a k i n g ; w h e n one reads h o w some p o o r cur w h i c h has h a d

it does not. T h e second, formulated by Jonathan Bennet, seems

its liver cut o u t , whines a n d licks his t o r m e n t o r ' s hands, one is just as nauseated as y o u were t o n i g h t . But i f these people had their say, we w o u l d have n o serums against cholera, t y p h o i d , or d i p h t h e r i a . "

1 0

to avoid the identity-specific counterexamples, i w i l l argue that it does not. Singer distinguishes his "preference" u t i l i t a r i a n i s m f r o m the

The general p r o b l e m is that for any identity-independent con-

sensate classical version: " T h i s other version of u t i l i t a r i a n i s m

c e p t i o n of interests, so long as the abstract structure of d i s t r i b u -

judges actions, not by their tendency to m a x i m i z e pleasure or

t i o n , the payoffs to positions, is at least as g o o d under the re-

avoid p a i n , but by the extent to w h i c h they accord w i t h the

placement scenario, there are no grounds for objecting w i t h i n the

preferences of any beings affected by the action or its conse-

confines of this k i n d of theory. In fact, if we are utilitarians and the

quences." F r o m this property of preference u t i l i t a r i a n i s m , Singer

replacement scenario w o u l d increase utility, we can be obligated

concludes: " K i l l i n g a person w h o prefers to continue l i v i n g is

to k i l l everyone and replace them w i t h a new p o p u l a t i o n of better

therefore w r o n g , other things being equal. T h a t the v i c t i m s are

u t i l i t y - m a x i r n i z e r s . O n the identity-independent view, people are

not a r o u n d to lament the fact that their preferences have been

simply vessels for h o l d i n g so much u t i l i t y (or whatever else is o u r

disregarded is i r r e l e v a n t . " ' 1

m e t r i c of value), i t is the u t i l i t y that matters, not the vessels. If a

Singer's n o t i o n is that some beings, such as animals, fetuses,

vessel breaks, it has no importance p r o v i d e d another vessel can

and infants, experience u t i l i t y only i n the p r i m i t i v e sensate sense.

be f o u n d or be created that w i l l h o l d as much or more.

Singer believes that replaceability arguments still apply i n their

i t is the very m e r i t of the identity-independent principles i n

case, and he explores the implications of this fact for the eating

dealing w i t h the earlier counterexamples to the identity-specific

of meat and the permissibility of a b o r t i o n and even infanticide.

the assessment of interests

However, he believes that the applicability of u t i l i t y to more de-

f r o m the identities of the people a f f e c t e d — w h i c h renders t h e m

veloped c h i l d r e n and adults i n this second-higher sense of pref-

vulnerable to this repiaceabitity scenario. Because the interests are

erence u t i l i t a r i a n i s m w o u l d block replaceability scenarios f r o m

v i e w e d anonymously, such theories w i l l permit us to object to p r o -

being applied to such persons, i t is in this way that his d i s t i n c t i o n

view-—-namely, that they disconnect

16

The L i m i t s of S y s t e m a t i c Justice

Future Generations

17

between preference and sensate u t i l i t a r i a n i s m m i g h t be taken to

personal identities, i t avoids the counterexamples w i t h w h i c h we

get us out of our dilemma (when applied, at least, to older c h i l d r e n

started, but only by creating a vulnerability to replaceability argu-

and adults).

ments.

I believe that Singer's escape is illusory. Preference u t i l i t a r i -

Consider a second strategy for avoiding our d i l e m m a . It has

anism is, at b o t t o m , identity-independent and thus vulnerable to

sometimes been argued that we should only count the utilities of

some versions of the replaceability scenario. This becomes ap-

those w h o w o u l d exist were an action not taken. Bennett has de-

parent if one thinks carefully about w h a t the "other things being

veloped one variant of this approach: " T h e question o f whether

e q u a l " clause might mean in Singer's s o l u t i o n . Recall that i n o u r

action A is m o r a l l y o b l i g a t o r y depends only u p o n the utilities of

various scenarios, the replacements can also be imagined to have

people w h o w o u l d exist if A were not p e r f o r m e d . "

preferences i n a self-conscious and reflective sense. Satisfaction o f

posal helps w i t h the particular examples we directed against the

those preferences may easily t u r n out to balance the f r u s t r a t i o n o f

identity-specific view. For example, if the p o p u l a t i o n planner com-

the life plans of the previously existing p o p u l a t i o n .

u

T h i s pro-

pares the benefits of the restrictive policy w i t h the misery experi-

M o r e specifically, if we imagine, as Singer seems to, a special

enced by those persons w h o w o u l d exist were that alternative not

d i s u t i l i t y in an o n g o i n g life being interrupted (whether or not the

taken, then there is a clear case for the restrictive policy. Simi-

person is around to regret the i n t e r r u p t i o n ) , we m i g h t , s y m m e t r i -

larly, i f the prospective mother compares the benefits of having a

cally, imagine a special u t i l i t y experienced by each r e p l a c e m e n t —

n o r m a l c h i l d w i t h the disutility of the child w h o w o u l d exist if

for example, u t i l i t y f r o m the miracle of his or her being b r o u g h t

that alternative were not chosen, then there is a clear case for her

i n t o existence. The new person may well experience an "existence

waiting.

b o n u s " that counterbalances the disutility f r o m the previous per-

T h i s strategy does n o t , however, offer a genuine way out of

son's existence i n t e r r u p t i o n . A n y reader of Walt W h i t m a n ' s Song

our d i l e m m a . W h i l e i t handles our t w o particular examples, it is

w i l l have a v i v i d sense of such an existence bonus. There

still vulnerable to the same basic difficulty we encountered w i t h

of Myself

is no reason, in principle, why one of these must be greater t h a n

identity-specific positions: on these views, it cannot be counted as

another. The theoretical v u l n e r a b i l i t y to replaceability arguments

a harm that someone is created to endure a miserable existence.

remains.

Bennet's strategy is vulnerable whenever the others

who would

T h e v u l n e r a b i l i t y is built i n t o the foundations of u t i l i t a r i a n i s m .

exist anyway are benefited by the misery of the newly produced

It is unavoidably identity-independent because it is w h a t m i g h t be

person. For example, imagine a p o p u l a t i o n considering whether

called a purely structural p r i n c i p l e . It defines the sufficient c o n d i -

to breed a race of test-tube-produced slaves. The persons w h o

tions f o r a p p r o v i n g a change based entirely on i n f o r m a t i o n avail-

w o u l d exist were this policy not adopted are the present popula-

able f r o m a listing of payoffs to positions under one alternative as

t i o n . They w o u l d benefit overwhelmingly f r o m having a race of

compared to another. ' If the total (or average, for some versions)

slaves. T h e only ones w h o w o u l d suffer are precisely the ones w h o

is higher under one alternative, then i t must be chosen. There is

cannot be considered in this strategy—the ones w h o w o u l d not

no reason for u t i l i t a r i a n i s m (or any other purely structural p r i n -

exist were the policy not adopted. They are the ones harmed by

ciple) to be concerned w i t h the issue o f whether the identities o f

the policy, yet their misery could not be counted by this proposal.

1

the replacements are different f r o m the identities of the o r i g i n a l s .

The t w o horns of our dilemma are constructed out of partial

Because u t i l i t a r i a n i s m completely unties human interests f r o m

pictures of the interests of possible future people. Each of the

18

Structure

The L i m i t s o f S y s t e m a t i c Justice

19

approaches has something to he said for i t . But relying o n one

mode, we w o u l d be led to other bizarre results. O u r procreational

consistently to the exclusion of the other w o u l d lead to disastrous

liberties, i n the negative-liberty sense of unconstrained personal

or bizarre results.

choice, w o u l d be encroached upon by a host of new obligations examples

and restrictions. Suppose we were consistent classical utilitarians

are required to make the p o i n t : procreational liberty. Procrea-

and applied that position to the question of p r o d u c i n g or not p r o -

t i o n a l l i b e r t y defines a sphere of choice of undeniable i m p o r -

ducing a d d i t i o n a l c h i l d r e n . So long as the a d d i t i o n a l c h i l d w o u l d

tance where single-minded reliance on either identity-specific or

add (or was reasonably likely to add) more u t i l i t y than disutility

identity-independent notions of human interest w o u l d lead to

(including whatever utility/disutility was caused by the c h i l d but

bizarre and d i s t u r b i n g results.

was experienced by siblings, friends, and others), then w e w o u l d

Consider a more mundane area where no exotic

Identity-specific theories, if relied o n consistently, give procrea-

be obligated

or m o r a l l y required to produce that c h i l d . I t w o u l d

t i o n a l l i b e r t y t o o broad a mandate, w h i l e identity-independent

no longer be a matter of discretion or of persona! choice. Once

theories, if relied o n consistently, give i t an overly restrictive one.

such issues are put in the category of m o r a l requirement, they are

Identity-specific theories open up too broad an area of procrea-

no longer w i t h i n the realm of procreational liberty.

t i o n a l l i b e r t y because they do not count as harms actions w h i c h ,

longer i n the area of life where we are permissibly free to do as we

They are no

o n other theories for the assessment of interests, m i g h t plausibly

please so long as we do not h a r m or violate the rights of others.

be counted as harms.

They are moved i n t o the category of duty or requirement, where

I am assuming that we are placing procreational liberty w i t h i n some variant of the h a r m p r i n c i p l e , namely, that people acting i n d i v i d u a l l y or together, consensually, can do as they please so long as they do not h a r m (or invade the rights of) others. '

1 1

failing to p e r f o r m the action i n question is m o r a l l y b l a m e w o r t h y and l i v i n g up to the requirement is an o b l i g a t i o n . Consistently relying o n the identity-specific view of h a r m overly demoralizes and broadens procreational liberty. Consistently rely-

Suppose families go ahead and produce seriously disabled or

ing o n the identity-independent view overly moralizes and nar-

d e f o r m e d children w h e n they k n o w perfectly well that after a

rows procreational liberty. Each of these familiar and coherent

w a i t i n g p e r i o d they could produce n o r m a l ones (or be reliably

approaches, approaches that w o r k well enough in o r d i n a r y life,

likely to d o so). Is that not sufficiently irresponsible

yields bizarre and unacceptable

that it raises

results for the interests of pos-

basic questions about the appropriate breadth of procreational

sible future people. We are left w i t h conflicting, incommensurable

liberty? I am raising this p r i m a r i l y as a m o r a l question, w i t h o u t

images—images w h i c h d o not fit together i n t o a unified con-

getting i n t o the complicated issue of legal remedies or restrictions.

ception but w h i c h serve, at best, to identify c o n f l i c t i n g m o r a l

I merely w a n t to make the p o i n t that there is something objection-

considerations that can be balanced out in particular cases.

able about p r o d u c i n g a c h i l d under such (avoidable) conditions, and that w h a t makes that action objectionable is some considera t i o n of the interests of the c h i l d — o n c e those interests are conceived i n some way different f r o m the manner permitted by the identity-specific n o t i o n .

f A Structure:

Problems

of

Progress

Let us t u r n to the second basic problem of justice, the issue of structure.' Suppose w e were to have perfect solutions to the issue

O n the other hand, i f we were consistently to conceive the inter-

of h o w to measure people's interests (at least so far as these are at

ests of possible children i n the alternative, identity-independent

stake in questions of d i s t r i b u t i v e justice), and suppose we were to

20

2i

Sfruîture

The l i m i t s of S y s t e m a t i c Justice

have perfect solutions to the issue of h o w people ought to be as-

Table i . T h e Pure P r o b l e m of Justice

signed positions i n the structure according to some viable theory oi: equal o p p o r t u n i t y .

2

Even w i t h perfect solutions to the problems of value ( w h a t

A

B

Position Payoffs

Position Payoffs

is d i s t r i b u t e d ) and of assignment (how people get and m a i n t a i n positions in the structure), the fundamental p r o b l e m of structure

P,

S.

S,

i\

w o u l d remain to be considered in its o w n right before we c o u l d

p"

s"

s"

p"

arrive at a systematic, substantive theory of justice. Given a listing of payoffs (in our chosen value) to positions (n-tiles of the p o p u l a t i o n defined by their shares of the chosen value), w h a t can w e say about the justice or injustice of any t w o alternative situations this stock example, w h i c h I w i l l b o r r o w f r o m G i l b e r t H a r m a n ,

A and B? (See table i . ) M e r e l y f r o m the i n f o r m a t i o n in t w o such listings of payoffs to

J u d i t h T h o m s o n , and others/'

positions, we can tell whether A or B has a higher total or a higher

Imagine a doctor i n a battlefield or other emergency situation

m i n i m u m , or is more equal or w o u l d benefit or disadvantage more

w h o has to choose between saving five lives and saving one. The

strata of society. M a n y of the central issues of distributive jus-

one life w i l l take all of his time and resources. But if he neglects the

tice can be stated w i t h i n the confines of this pure p r o b l e m . I n an

one, he can save five others. We w o u l d not blame h i m for neglect-

i m p o r t a n t article, Douglas Rae dubs this pure p r o b l e m " s i m p l e

ing the one. indeed, five lives saved at the cost of one lost, seems,

j u s t i c e . ' W h i l e i t is " s i m p l e " because many of the crucial c o m -

on its face, a reasonable calculation. But now consider a second

plexities have been relegated to the problems of value and struc-

version. O u r doctor, n o w a convinced u t i l i t a r i a n , has returned to

ture, it is, i n its o w n r i g h t , even more difficult than has previously

the hospital, where he has five patients, each needing emergency

been realized, i n fact, I w i l l argue, no solution that passes certain

d o n a t i o n of some vital organ. There are, unfortunately, n o v o l u n -

m i n i m u m tests is possible. I w i l l use these conclusions to raise-

tary organ donors. But a patient in r o o m 306 has checked in for a

some general issues about the kinds of answers we should expect

routine physical exam. H e is a healthy specimen and, by himself,

1

3

could supply all the organs necessary to save the other five. O u r

f r o m theories of justice. U n t i l relatively recently, there was a widespread consensus

doctor cuts up the patient and redistributes the organs so as to

about the p r o b l e m of structure, and indeed about answers to the

save five lives. If the calculation (that five lives saved are w o r t h

entire issue of d i s t r i b u t i v e justice. As H . L . A . H a r t noted, there

more than the cost of one lost) was correct in the first case, w h y

was "a once widely accepted o l d faith that some f o r m of u t i l i t a r i -

is it not also correct i n the second?

a n i s m , i f only we could discover the right f o r m , must capture the essence of p o l i t i c a l m o r a l i t y . "

O f course, some complexities must be accounted for i n any u t i l i t a r i a n calculation applied to this case, i f it is u t i l i t y that is

4

W h y has utilitarianism fallen into disfavor? The most p o w e r f u l

ultimately being m a x i m i z e d , we must assume that i n d i v i d u a l lives

arguments against it focus on the fact that it does n o t , i n some

are place holders for future streams of u t i l i t y . I n this way, we can

sense, take seriously the "separateness of persons." M o s t notably,

reach the conclusion that five lives are likely to yield m o r e long-

it does not offer sufficient protections f r o m the kinds of sacrifices

term u t i l i t y than w o u l d one life. W h i l e the case m i g h t be m o d i f i e d

that the greater social g o o d can place on individuals. Consider

so as to b r i n g this assumption into question, it is n o t , on its face,

5

22

Tfie limits

an unreasonable assumption. Second, there are problems

about

the effect of such an intervention on social practices that do p r o duce great long-term u t i l i t y so long as people continue to rely o n t h e m — s o c i a l practices such as the routine physical exam.

23

Stnjsture

o f S y s t e m a t i c Justice

How-

ever, utilitarians have always had a response for such objections.

3. E q u a l i t y 4. The m i n i m u m share (or the m a x i m i n principle} W h e n we t h i n k of the general welfare, we t h i n k of the t w o separate dimensions in considerations

I and 2, "the greatest g o o d

I hey can lie or deceive or just keep things secret if it w i l l produce

of the greatest n u m b e r , " as i n Bentham's slogan (even t h o u g h ,

greater social u t i l i t y . W i t h o u t g o i n g into whether this strategy i n

operationally, only the first clause really mattered for Bentham).*

itself constitutes further grounds for objecting to u t i l i t a r i a n i s m ,

Alternatively, d i s t r i b u t i o n raises t w o fundamental and separable

we can see that it should be possible to preserve the inference that

issues: equality, w h i c h can be thought of as the relative standing of

aggregate u t i l i t y is served.

the less w e l l off strata, and m a x i m i n , w h i c h can be t h o u g h t of as

bor our purposes, t w o m a i n conclusions are w o r t h d r a w i n g f r o m this example. First, aggregate utility, even w h e n supplemented by the fact that most people are made better off, hardly constitutes an adequate solution to the problem of structure. We must also deal w i t h distributive objections focused o n l i m i t i n g the sacrifices that may be demanded in the name of overall social

the absolute

standing of the least well off stratum. In the examples

that f o l l o w , I w i l l measure equality simply by t a k i n g the mean of the differences f r o m the mean; A m a r t y a Sen has demonstrated some subtle and i m p o r t a n t differences in measures of equality, but these do not affect the basic argument developed here. ' 1

Each of these four basic criteria has its proponents. 'The first

u t i l i t y . Second, criteria for structure cannot be applied in isolation

point 1 w a n t to develop is that the inadequacy of each can

f r o m criteria f o r assignment—criteria

be

for w h o gets w h a t p o s i t i o n

dramatized by the fact that it w i l l support choices w h i c h v i o -

in the structure. There must be some fair process for d e t e r m i n i n g

late all three of the other basic criteria. Despite the enthusiasm

w h o suffers and w h o benefits. The arbitrariness of p i c k i n g out the

of Rawlsians, o n the one hand, and of utilitarians, o n the other,

patient in r o o m 306 violates our i m p l i c i t assumptions about fair

single-minded reliance on any one of these basic criteria, even for

assignment. We w i l l return to the assignment problem below, but

the pure p r o b l e m of justice, leads to disaster.

m the meantime, it should be emphasized that any solution to the

The more basic difficulty is that any complete principle w h i c h

structure problem can, at most, be necessary and not sufficient for

attempted to avoid these disasters w o u l d violate t r a n s i t i v i t y . A n -

an adequate s o l u t i o n , because criteria for fair assignment w o u l d

other way of saying this is that any principle w h i c h always sides

be required as w e l l .

w i t h three of these basic criteria w i l l take public policy i n a cycle

In dealing w i t h the structure p r o b l e m , we must c o n f r o n t t w o distinct families of consideration. One focuses on the general w e l fare, the other o n d i s t r i b u t i o n . F o l l o w i n g Brian Barry, I w i l l say that one m i g h t be called "aggregative" and the other " d i s t r i b u t i v e . " ' F r o m each of these t w o families, I w i l l take t w o basic considerations, to yield the f o l l o w i n g four: 1. The total welfare 2. The numbers

affected

(under some possible c o n d i t i o n s ) — a result that raises basic questions about the k i n d of connection commonly assumed between ideal theory and public policy. Let me demonstrate the first difficulty w i t h a series of simple numerical illustrations. I am assuming that all of the issues about what wc are. d i s t r i b u t i n g and -about h o w we measure it have already been resolved. Suppose we solved these issues to a degree beyond anyone's wildest o p t i m i s m . We have an index for, say, Rawlsian p r i m a r y goods or Ackermanian manna that we can rep-

The l i m i t s ®l S y s t e m a t i c Justice

24

Strwture

25

resent, for these purposes, w i t h cardinal, interpersonal shares to

tive objection to u t i l i t a r i a n i s m that has become a commonplace of

ranked positions. " Even w i t h such a s o l u t i o n , the pure p r o b l e m

recent theories of justice emphasizing the separateness of persons

of justice Is far more difficult than has been imagined.

and the great sacrifices w h i c h m a x i m i z i n g the total can sometimes

1

T h e p o i n t can be made as a sequence of abstract h o r r o r stories.

require. I n this case, most people are made worse off, equality is

Each h o r r o r story can be thought of as a m i n i m u m test for an ade-

decreased, and the m i n i m u m is devastated:

quate theory of justice. W h e n three of our basic criteria prefer one A

alternative, it is the one that should be chosen. Each h o r r o r story consists i n siding w i t h one of the four against the other three. I w i l l later show, however, that these four m i n i m u m tests, i n c o m b i n a t i o n , violate transitivity. Hence, any principle that satisfied all f o u r w o u l d not define a unified and coherent direction for public policy, i n that sense, we have to choose between m o r a l l y adequate choices in particular cases (avoiding the four h o r r o r stories) and coherent progress in our sequence of policy choices over time. In either case, the n o t i o n that we can gradually realize an ideal w i t h m o r a l l y adequate principles is undermined. The true c o m p l e x i t y of justice does n o t , by itself, i m p l y relativism or subjectivism,

10

I

20

1

30

I

40

I

50

i

60

1

70

1,000 3: M a x i m i n violates equality, the t o t a l , and the n u m -

Scenario

bers c r i t e r i o n . T h i s case is an extension of Douglas Rae's critique

11

b u t it does disappoint c o m m o n expectations about the k i n d of

B

i

s o l u t i o n our principles ought to provide.

of m a x i m i n . Rae showed h o w m a x i m i n can distribute less i n t o t a l , less equally.'" Particularly i n cases where the m i d d l e classes are

I: Equality violates m a x i m i n , numbers, and the t o t a l .

?

devastated, the welfare state may, nevertheless, i m p r o v e the lot

T h i s scenario is just an extension of Rawls's argument against

;

of those at the b o t t o m w h i l e the rich continue to get richer, i n

equality. The leveling approach to equality can be ruinous to a l l —

*

that case, the t o t a l may decrease w h i l e inequality increases along

l o w e r i n g the total in a way that makes most people worse off,

\

w i t h the m i n i m u m share. The example is not f a n c i f u l . Some may

i n c l u d i n g those at the b o t t o m . This possibility is illustrated by the

i

regard it as a g o o d description of the " B r i t i s h disease," a syn-

choice between A and B below:

\

d r o m e that has, at times, been thought to affect many of the aging

Scenario

A

B

10

2

20

2

30

2

40

2

50

2

60

2

70

2

welfare states of the West, i n this scenario, I have simply added a f a c t o r — t h e numbers affected. If d i s t r i b u t i n g less in t o t a l , less equally was a serious objection to m a x i m i n , an even more serious o b j e c t i o n is d i s t r i b u t i n g less in t o t a l , less equally, w h i l e at the same t i m e m a k i n g most people (or most strata) worse off. Here is an example: A

B

10

11

2; The total welfare violates m a x i m i n , equality, and

20

15

the numbers c r i t e r i o n . This case simply expands o n the d i s t r i b u -

30

15

Scenario

The l i m i t s o f S y s t e m a t i c Justice

Strusture

27

40

20

so clearly served along w i t h a central element of d i s t r i b u t i o n , or

50

30

when d i s t r i b u t i v e interests are so clearly served along w i t h a cen-

60

30

tral element of the general welfare, the result is very d i f f i c u l t to

70

LOO

argue against. Let us label these four tests in the order of our four

i n the move f r o m A to B, the total is lowered f r o m 2 8 0 to 2 2 1 , five out of seven strata are worsened, and inequality is i n creased. O n l y a fanatical advocate of m a x i m i n w o u l d s u p p o r t such changes because of the small increase of the m i n i m u m share ( f r o m 10 to 11). 4: The numbers c r i t e r i o n violates the total, m a x i m i n ,

Scenario

and equality. Serving the m a j o r i t y here distributes less in t o t a l , less equally, to the d e t r i m e n t of the least favored. T h i s case maybe t h o u g h t of as a tyranny of the m a j o r i t y that violates b o t h u t i l i tarian and distributive justice considerations at the same t i m e : A

B

10

0

20

5

scenarios; Test I: Prefer alternatives prescribed simultaneously by m a x i m i n , the t o t a l , and the numbers c r i t e r i o n . In other w o r d s , prefer more in total when it helps most people, including the least well off. Test 2: Prefer alternatives prescribed simultaneously by maxi m i n , equality, and the numbers c r i t e r i o n . I n other w o r d s , prefer equality w h e n it is to most people's advantage, including the least favored. 'lest 3: Prefer alternatives prescribed simultaneously by the total, equality, and the numbers criterion. In other w o r d s , prefer alternatives that distribute more in total, more equally to the advantage of most people (or strata). Prefer alternatives prescribed simultaneously by the

Test 4:

t o t a l , m a x i m i n , and equality. I n other w o r d s , prefer alternatives

30

5

40

45

that distribute more i n t o t a l , more equally, when it is to the ad-

50

55

vantage of the least favored.

60

65

W h e n viewed i n i s o l a t i o n , each of these tests seems o v e r w h e l m -

95

ingly c o m p e l l i n g . H o w e v e r , if they are taken together as consti-

70

t u t i n g necessary c o n d i t i o n s for an adequate principle of d i s t r i b u -

I he move to B serves the most advantaged four strata, but i n a

tive justice, then no adequate principle of distributive justice can

way that increases inequality (the mean of the differences f r o m the

avoid v i o l a t i n g transitivity. A simple illustration demonstrates this

mean increases f r o m 17.14 to about 3 0 ) , lowers the total ( f r o m

result. I n the table on the f o l l o w i n g page, test 1 w o u l d force us

2 8 0 to 2 7 0 ) , and devastates the m i n i m u m ( f r o m 10 to 0).

to choose B over A , test 2 w o u l d force us to choose C over B,

Each of these four scenarios can be thought of as a m i n i m u m

test 3 w o u l d force tis to choose L) over C, test 4 w o u l d force us to

test w h i c h the other criteria, taken in isolation, fail. If 1 am cor-

choose

rect that these basic criteria should be f o l l o w e d when three agree,

back to A .

over D , but then test I w o u l d lead us f r o m E i n a cycle

then we have four separate m i n i m u m tests for any principle of dis-

The move f r o m A to B is required by test 1 , because the t o t a l is

t r i b u t i v e justice. The power of each test is that it combines b o t h

increased f r o m 250 to 2 7 0 , the m i n i m u m is increased f r o m 10 to

of the members of either the aggregative or distributive family

1 1, and three of the five strata are better off. The move f r o m B to C

w i t h a member of the rival family. W h e n aggregative interests are

is required by test 2 because the m i n i m u m is increased f r o m 11

r i

j

Use U S J H S ©I S y s t e a a s f k Jasiise

M

A

B

C

D

F.

10 30 50

1 I

12

9

30 50 80 100

31

S 42

70 90

51 52 53

52

54 55

picture of the relations between idea! theory and public p o l i c y . It 1:

undermines the n o t i o n of a unidirectional approach to the ideal, where it is b o t h possible and desirable for each state of affairs to

50 50

be " m o r e j u s t " than the last. Such a ranking may no longer be possible because " m o r e j u s t " is no longer a transitive r e l a t i o n . This

51

new picture is the one i have termed "ideals w i t h o u t an i d e a l " con-

52

flicting principles, without

——

II

29

Assignment

a single unified vision to be gradually

approached.'' Each element of mora! conflict, if taken seriously,

to 12, equality is increased (the mean o i the differences f r o m the

w o u l d lead public policy in a quite different d i r e c t i o n . T h i s may

mean is lowered f r o m 28.24 to 14.64), and three of the five strata

force an i n t u i t i o n i s t i c balancing of particular cases to take policy,

are better off. The move f r o m C to D is required by test 3 because

over time, in a cycle. Because progress in one d i r e c t i o n may force

the total increases f r o m 199 to 2 1 1 , equality increases (the mean

us to retrace our steps along another valued dimension, patterns

of the differences f r o m the mean decreases f r o m 14.64 to 13.7),

of m o r a l conflict can eventually take us back to where we started.

and four of the five strata are made better off. The move f r o m D

[f we do justice to the true complexities of the p u r e - d i s t r i b u t i o n

to K is required by test 4 because the total increases f r o m 2 1 1 to

p r o b l e m , we must take account of all four of the basic criteria I

2 1 2 , the m i n i m u m increases f r o m 8 to 9, and equality increases

have proposed. But once we take this step, it seems difficult not to

(the mean of the differences f r o m the mean decreases f r o m

accept the four m i n i m u m tests. Either one or more of these tests

13.7

must be abandoned, or the n o t i o n that " m o r e j u s t " is necessarily

to 13.36). T h e cycle is completed w i t h the move f r o m E back to A . T h i s

a transitive relation must be. O n substantive grounds, the former

w o u l d be required by test 1 because the m i n i m u m increases f r o m 9

o p t i o n seems clearly indefensible, for it w o u l d expose us to con-

to 10, the total increases f r o m 212 to 250, and three of the five

d o n i n g one or more of o u r four h o r r o r stories as an e m b o d i m e n t

strata are clearly made better off. Hence, if an adequate p r i n c i p l e

oi justice. T h e alternative, w h i c h I accept, is that there are crucial

of d i s t r i b u t i v e justice must pass our four tests, such a p r i n c i p l e ,

impediments to any systematic theorv of justice,

however it is f o r m u l a t e d , must violate t r a n s i t i v i t y . ' 1

W h y should this be disturbing? Recent theories of justice have given us a picture of ideal theory whose task is to offer a systematic s o l u t i o n that holds w i t h o u t exception ( w h i c h solves the p r i o r i t y p r o b l e m in Rawls's language), and w h i c h we are to attempt,

Conflicting

of Equal

Opportunity

Visions

Regardless of h o w we handle the problem of structure, we face

perhaps o n l y asymptotically, to approach so far as circumstances

a separate set of issues in the problem of assignment: who

p e r m i t . We are given a unified and coherent picture of an ideal

what position

s o l u t i o n , i n w h i c h all the elements of m o r a l conflict have been p u t

be affected as decisively by assignment as by structure. N o viable

gets

in the structure. The life histories of individuals can

in their appropriate p r i o r i t y relations. The task of public policy is

theory of d i s t r i b u t i v e justice could a f f o r d to ignore the issue of

to get us as close as possible, even if the best we can possibly d o

assignment. Imagine one that d i d so. Then imagine that it ranked

is an a p p r o x i m a t i o n .

some sequence of situations A, B, C, D as successive improvements

T h e v i o l a t i o n of transitivity, however, supports a quite different

I

1.5 Assignment;

in terms of structure (as judged, for example, by the percentage of

30

the stated value held by each tenth of the society), i t no criteria are offered for assignment, but only for structure, then the sequence A , B, C, D c o u l d , in theory, be compatible w i t h any objectionable set o f l i m i t a t i o n s in terms of assignment. We m i g h t , for example, imagine the i n t r o d u c t i o n of a caste system, or of an underclass, or of an apartheid system of racial segregation. In principle, n o t h i n g prevents objectionable forms of assignment f r o m coexisting w i t h an i m p r o v e d structure—say, greater equality in income d i s t r i b u t i o n , greater totals, or whatever your favorite structural principle may be.

1

Suppose we are c o m m i t t e d to the proposition that the sequence of situations A , B, C, D represents consistent improvement o n s t r u c t u r a l grounds. T h e n let us imagine that we also have a sequence of structurally identical situations A ' , B', C , D ' that i n volve the i n t r o d u c t i o n of a caste system. The second g r o u p of situations is structurally

identical in that the payoffs to positions

under A ' , B', C , D ' are precisely the same as under A , B, C, D . If we have no criteria for assignment, then the structural criteria that w o u l d c o m m i t us to the p r o p o s i t i o n that A, B, C, D is an i m p r o v e m e n t w o u l d equally c o m m i t us to the proposition that A ' , IV, C , D ' must be an improvement. But w i t h i n liberal theory, it is h a r d to imagine that, whatever the structural improvements, they w o u l d insulate the overall result i n the second sequence f r o m decisive objections. The point of such examples is that no defensible, substantive theory of justice can afford to ignore the assignment p r o b l e m . Otherwise, such theories are vulnerable to representing as justice the i n t r o d u c t i o n of apartheid, the creation of a caste system, or the creation of a permanent underclass. In order to deal w i t h the assignment p r o b l e m , we need a viable theory of equal o p p o r t u n i t y . We need some fair system for 2

31

Assignment

The L i m i t s csi S y s t e m a t i c Justice

ration-

ing the chance to be unequal whenever there are going to be inequalities. O f course, if we had perfect equality of outcomes, then there w o u l d be little need to develop a theory of assignment. B u t there are substantial inequalities i n every m o d e m developed society, capitalist or socialist. Furthermore, if a theory were to be

systematic, it w o u l d have to rank outcomes as they

approached

whatever ideal was posited. Even advocates of perfect equality of outcomes w o u l d have to evaluate many d i f f e r i n g degrees

of i n -

equality (in a d d i t i o n to the many other difficulties such advocates w o u l d face). However, the difficulty i n developing a viable theory of assignment is that the values that are implicated by the equal o p p o r t u nity p r o b l e m do not fit together into a unified picture of an ideal s o l u t i o n — e v e n under the best conditions that m i g h t realistically be imagined for a m o d e r n , large-scale society. The issue can be posed as a " t r i l e m m a , " a k i n d of dilemma w i t h three corners. A first principle at issue i n the trilcmrna is merit:

1

that is, that

there should be widespread procedural fairness i n the evaluation of qualifications for positions. By "qualifications," 1 mean criteria that are job-related i n that they fairly can be interpreted as i n d i cators of competence or m o t i v a t i o n for performance. Whether we are t a l k i n g about scholastic aptitude tests, civil service exams, or the evaluation of publications for academic tenure decisions, we are all f a m i l i a r w i t h the culture of meritocracy. It is deeply embedded i n the rationales and practices of most of our institutions. But m e r i t , by itself, is not enough. Arguments for this conclusion are dramatized by an example that I w i l l b o r r o w f r o m Bernard W i l l i a m s . Imagine a society dominated by a w a r r i o r class/ F r o m generation to generation, the children of the present 1

w a r r i o r s become the new w a r r i o r class and rule in t u r n . A t some p o i n t , critics achieve a major r e f o r m . " F r o m n o w o n , " they announce, "there shall be equal o p p o r t u n i t y , because we shall select the best w a r r i o r s t h r o u g h a suitable c o m p e t i t i o n . " They then design an elaborate w a r r i o r - O l y m p i c s that selects the most competent w a r r i o r s . The c o m p e t i t i o n is held, but it makes v i r t u a l l y no difference to the outcome. The competition is w o n , o v e r w h e l m ingly or perhaps entirely, by the children of the present w a r r i o r s . A t first, to make it simple, let us imagine that the causal mechanism is quite obvious. T h e children of the present w a r r i o r class are both w e l l trained and well nourished. The rest of the p o p u l a t i o n ,

3§

The

UmiH o f

Sysfemssfis JusHs©

33

Assignment

wc m i g h t imagine, is on the verge of starvation. This fact turns the

Table 2. T h e T r i i e m m a of Equal O p p o r t u n i t y

equal o p p o r t u n i t y c o m p e t i t i o n into a series of wrestling and boxi n g matches between three-hundred-pound sumo wrestlers and

Option i

Option 2

Option i

n i n e t y - p o u n d weaklings. Clearly, such a c o m p e t i t i o n w o u l d not Merit

adequately realize equal o p p o r t u n i t y . N o t e , however, that its re-

4

('A[u;il life chances

sults w o u l d be supported by the principle of merit. The sumo

v

!

L i b e r t y in f a m i l y

wrestlers, we can assume, really are better w a r r i o r s than the weak-

"

'

~

;

lings. They are better warriors because they have had a lifetime of favorable conditions to develop the desired characteristics,

while

uvely w e l l in meritocratic c o m p e t i t i o n . The principle of m e r i t then

their rivals have had a lifetime of grossly unfavorable conditions

becomes a mechanism for generating unequal life chances.

to prepare for the same c o m p e t i t i o n .

It is w o r t h m e n t i o n i n g that in real life we do not fully realize

Real equal o p p o r t u n i t y , i t m i g h t be argued, must get at those

any of these principles. But we attempt to approach each of them

c o n d i t i o n s , for they determine the real terms of c o m p e t i t i o n . T h e

and, to one degree or another, we are successful (even t h o u g h

d i f f i c u l t y , of course, is that those conditions are protected by the

each p r i n c i p l e m i g h t take public policy i n a different d i r e c t i o n ) .

l i b e r t y to confer benefits w i t h i n the private sphere of family rela-

The p o i n t is that these criteria do not combine to make a uni-

tions.

fied and coherent scenario for the appropriate relations between

A more ambitious account of equal o p p o r t u n i t y w o u l d add to

liberty and equality, even under the best conditions that m i g h t

m e r i t the second requirement that there should be equality of life chances.

realistically be imagined. Consider the three options p i c t u r e d in

By this 1 mean that we should not be able to predict the

table 2. O p t i o n I is exemplified clearly by the w a r r i o r society. L i b -

eventual places in society of new-born infants about w h o m we

erty w i t h i n the family (the liberty to confer benefits) protects the

k n o w certain a r b i t r a r y native characteristics such as family back-

process whereby advantaged families differentially benefit then-

g r o u n d , race, sex, religion, and ethnicity. This c r i t e r i o n captures

children i n the developmental competition so that, as a statistical

w h a t was objectionable about the w a r r i o r society.' We could (but

matter, those c h i l d r e n w i l l achieve unequal life chances. Suppose

should n o t be able to) predict the winners and losers in the c o m -

we attempted to achieve b o t h m e r i t and equal life chances. I hen,

p e t i t i o n merely by k n o w i n g the class into w h i c h they were b o r n .

as p i c t u r e d in o p t i o n 2, we w o u l d have to somehow insulate chil-

O f course, this principle is widely violated in our o w n society,

dren f r o m the advantages their parents w o u l d wish to confer upon

as various sociological studies demonstrate, If we k n o w father's

t h e m . Perhaps some system of collectivized child rearing w o u l d

income o r education, we can make g o o d statistical predictions of

do the j o b . O r perhaps a school system could be designed that

the life chances among any cohort of n e w - b o r n infants/'

an^F*^mw^

w o u l d even out advantages and disadvantages f r o m class back-

I he causal mechanism operating here is, to a large extent,

g r o u n d and block the exit options of private schools, t u t o r i n g in

simply a more discreet version of w h a t was blatant in the w a r r i o r

the home, and so o n . Whatever the precise details, any such sce-

society example. Advantaged families differentially influence the

nario w o u l d require a significant sacrifice in liberty w i t h i n the

development of qualifications, talents, motivations, and so f o r t h

family. A t h i r d possibility w o u l d be to preserve l i b e r t y w i t h i n the

in their c h i l d r e n compared to less advantaged families. Those

family, but to attempt to realize equal life chances independently

favorable causal conditions prepare such children to do compara-

of the principle of m e r i t . This t h i r d o p t i o n might be termed the

7

i

m

n

n

34

3S

tJeracKracy a n d P r o g r e s s

H i e l i m i t s of S y s t e m a t i c Justice

"reverse d i s c r i m i n a t i o n " scenario because it w o u l d require that

the best conditions that m i g h t realistically be imagined. If we are

people be assigned to positions according to some pattern thai tie-

left w i t h principles in intractable conflict, even under favorable

parted systematically f r o m merit. One strategy w o u l d be simplv

conditions, then we do not have the k i n d of ideal s o l u t i o n — d e -

disadvantaged

fined w i t h o u t m o r a l c o n f l i c t — a s p i r e d to by systematic theory. We

backgrounds. A n alternative version of this scenario w o u l d assign

do not have a s o l u t i o n to the p r i o r i t y p r o b l e m . Instead, we have

all positions randomly, perhaps t h r o u g h a job lottery. Regardless

"ideals w i t h o u t an i d e a l . "

to hire less-qualified people f r o m comparatively

of the details, any version of o p t i o n 3 w o u l d require a significant sacrifice in merit {and i n the values p r o m o t e d by m e r i t o c r a c y — that is, procedural fairness and efficiency). Clearly, each of our three scenarios is a h o r r o r story. A c h i e v i n g

1.6 Democracy

and

Progress

F r o m the perspective of many theorists of justice,

democracy

any t w o of our principles precludes achieving the t h i r d — u n d e r

is a narrower topic than distributive justice, because many theo-

an}' realistic scenario of favorable conditions. i t is as if we had

ries w o u l d include the right to participate in political institutions

a three-cornered stool, but only t w o legs available to h o l d it u p .

as part of the more general d i s t r i b u t i o n of p r i m a r y goods or of

Even after we p r o p up any t w o sides, lack of the t h i r d leg is enough

fundamental rights and liberties in a just society.

8

Other theorists, however, w o u l d regard the c o n u n d r u m s of dis-

to undermine or destabilize the whole structure. One reasonable response to this pattern of conflict w o u l d be

t r i b u t i o n just discussed as p r o v i d i n g an argument for focusing o n

to trade off these three principles in particular cases, but to avoid

democratic procedures

any systematic attempt to fully realize any of them, given the cost

cannot settle substantive questions on the merits, we can at least

in c o m p e t i n g principles. Such a position w o u l d , of course, be an

determine procedures in w h i c h each person's conscientious views

example o f w h a t n o w is c o m m o n l y termed " i n t u i t i o n i s m " — t h e

get an appropriate hearing and an appropriate chance to influence

t r a d i n g o f f of competing principles in particular cases w i t h o u t any

a fair process of collective decision m a k i n g .

systematic s o l u t i o n that can be fully realized.

rather than on outcomes. Perhaps, if we

The d i f f i c u l t y is that the democratic t r a d i t i o n has

9

bequeathed

The i n t u i t i o n i s t position is unpopular and dissatisfying, in part,

to us a variety of fundamental values at stake in democratic pro-

because it is w i d e l y seen as vague in its prescriptions. H o w e v e r ,

cedures, a variety of ideal images of w h a t an appropriate collec-

such a charge is not entirely appropriate. Clearly, when there are

tive procedure m i g h t be. Because these ideal images cannot all be

strong gains to be made w i t h o u t a corresponding loss i n c o m -

simultaneously realized, they require some hard choices. 1 believe

peting p r i n c i p l e s ,

or significant losses w i t h o u t a corresponding

that figure I provides a useful way of p i c t u r i n g the dimensions

then there w i l l be a case for choice of a policy o p t i o n w i t h i n

along w h i c h this democratic debate tends to range. I have labeled

gain,

11

10

the i n t u i t i o n i s t f r a m e w o r k . There w i l l also be cases under other

the n o r t h - s o u t h dimension " M a d i s o n i a n " versus " m a j o r i t a r i a n . "

c o n d i t i o n s , but the t w o possibilities just mentioned are the most

By M a d i s o n i a n , I simply mean the degree to w h i c h the system

obvious ones.

includes impediments of one sort or another to popular m a j o r i -

W h e t h e r or not we adopt an i n t u i t i o n i s t response, the t r i l e m m a poses a significant obstacle to the ambitions of systematic t h e o r y .

12

!

ties. These impediments are usually justified, at least i n theory, by a desire to prevent t y r a n n y of the m a j o r i t y . Theoretically, the 2

Either we give up one of the pieces or we have to a d m i t that the

construction of impediments could go far beyond a n y t h i n g envi-

three components of the t r i l e m m a do not fit together, even under

sioned by M a d i s o n , so that, strictly speaking, he w o u l d not have

36

S e m m r a c y mû

The l i m i t s of S y s t e m a t i c Justice

advocated a perfectly " M a d i s o n i a n " system. T h e t e r m , however, provides a useful label for a basic m o t i v a t i o n underlying checks and balances, the t e r r i t o r i a l , federal, and bicameral character of many A m e r i c a n representative arrangements,

Progress

•itriire i - The Forms of Democracy Figu Madisonian

(Unanimous

(Avoiding tyranny^

direct democracy)

and the operation

of j u d i c i a l review and other institutions that serve as impediments to majorities. Alternatively, movement south along the same d i mension s i m p l y means that there are no effective impediments to p o p u l a r majorities, so that the tatter tend to get their way. As D a h l

-» A

Direct (participation)

noted i n a classic study, the American system is not very m a j o r i -

•B

t a r i a n . W i t h a system of " m i n o r i t i e s r u l e , " it is somewhere in the u p p e r - r i g h t - h a n d quadrant of figure I .

Indirect (competence)

1

T h e east-west dimension is familiar i n that it depicts the degree to w h i c h the system is indirect (representative) or direct (relying o n the p a r t i c i p a t i o n of members w i t h o u t the intermediary of representatives). For both the north-south and east-west dimensions,

Majoritanan

(Majoritarian

(popular control)

direct democracy)

many d i f f i c u l t judgments of degree w o u l d be required to make any precise comparisons. The main usefulness of the diagram is

absurdum. I n any case, any extreme version w o u l d fit the lower-

that i t captures a w i d e range of debate and a variety of c o n f l i c t i n g

left-hand corner of the diagram.

images w i t h i n a single space, so as to clarify h o w gains i n one

By contrast, R o b e r t Paul W o l f f ' s proposal for unanimous direct democracy fits the extreme upper-left position.' The u n a n i m i t y

value can be expected to require costs i n another.

1

T h e A m e r i c a n system w o u l d fit somewhere in the u p p e r - r i g h t -

rule gives everyone a veto, p r o v i d i n g the greatest possible protec-

hand q u a d r a n t of figure l . T o v a r y i n g degrees, most parliamentary

tion against tyranny of the m a j o r i t y f r o m new policies. I t w o u l d

systems w o u l d fit somewhere to the south of the American system.

not provide protection f r o m omissions, but that is not an issue we

D e p e n d i n g on the impediments they offered to popular m a j o r i -

need to pursue here. T h e placement of unanimous direct democ-

ties, they m i g h t fit i n the lower p o r t i o n of the northeast quadrant

racy in the upper-left corner and the placement of m a j o r i t a r i a n

or the upper p o r t i o n of the southeast one.

direct democracy in the lower-left corner illustrate h o w extreme

T h e western positions i n figure i are most usefully exemplified by certain extreme ideal images. Suppose, for example, t h a t

5

direct systems (both implementable through a t w o - w a y cable system) can be crucially different on our north-south d i m e n s i o n .

the W a r n e r - A m e x Qube system i n C a n t o n , O h i o , were used f o r

In a p p l y i n g the l i m i t e d liberalism model to my discussion of

actual government policy m a k i n g . Each resident could respond

justice, I argued that there were not only fundamental conflicts

immediately o n any question posed o n the t w o - w a y cable tele-

in our ideal images, but also fundamental conflicts in our notions

vision system. Constant referendums w o u l d thus be feasible o n

of moral progress intended to realize those ideal Images. We can

all public questions. Some w o u l d regard instantaneous,

majori-

get the same cycles i n a p p l y i n g democratic principles that we en-

tarian direct democracy as the perfect embodiment of a certain

countered in a p p l y i n g principles of justice. I do not have i n m i n d

i n f l u e n t i a l , ideal image. Others w o u l d regard i t as a reductio ad

here the cycles familiar to students of the classic v o t i n g paradox.

as

The l i m i t s of S y s t e m a t i c Justice

Cycles i n applying

particular democratic arrangements {say, ma-

popular c o n t r o l , movement west on participation as a value i n

j o r i t y rule} to policy or candidate choice can be distinguished f r o m

itself, movement n o r t h on the prevention of tyranny of the ma-

cycles i n the design of the democratic arrangement itself. H o w a

j o r i t y , and movement east o n the greater competence of repre-

cycle of democratic reforms m i g h t arise can be charted in figure I .

sentatives. D e p e n d i n g on w h i c h of these partial images is given

Imagine an American-style status quo somewhere in the upper-

greater emphasis, one can go r o u n d and r o u n d . Each d i r e c t i o n

r i g h t - h a n d quadrant, at p o i n t A . W i t h i n the family of arguments

for r e f o r m has plausibility because of its emphasis on a distinc-

Democracy a n d P r o g r e s s

39

loosely counted as democratic, a variety of reforms m i g h t be sup-

tive value. Elowever, the end result is the same kind of cycle t h a t

p o r t e d that w o u l d increase m a j o r i t y c o n t r o l over policy outcomes

we encountered w i t h d i s t r i b u t i v e justice. C o n f l i c t i n g values in the

( p r o p o r t i o n a l representation, r e f o r m of the electoral college, a less

identification of the ideal yield c o n f l i c t i n g directions for m o r a l

activist or independent judiciary, p o l i t i c a l control over the Fed-

progress—directions

eral Reserve, and so on). 1 am not advocating these reforms, but

where we started.

only p o i n t i n g out that were they to come about they could move the entire system south, f r o m A to B in the diagram.

w h i c h , step by step, can take us back to

Focusing on democracy rather than on the full range of issues in the theory of justice does not provide a basis for a v o i d i n g either

F r o m B we could imagine a second line of r e f o r m based on the

of the t w o basic problems we encountered earlier w i t h systematic

argument that real democracy requires far greater direct participa-

theory. We get neither a unified and coherent picture of the ideal

t i o n . Even w i t h i n the confines of a generally representative system,

nor an unambiguous route to m o r a l progress. Rather than a sys-

a number of reforms could be designed to move the system west-

tematic s o l u t i o n , the l i m i t e d liberalism model is a more plausible

w a r d to a p o i n t such as C. Referendum and recall provisions and

interpretation of the m o r a l complexities at stake in democratic

p r o l i f e r a t i o n of direct primaries, t o w n meetings, and other direct-

theory, just as it is in the theory of justice.

g o v e r n i n g arrangements w i t h i n specific jurisdictions are some of

Despite these l i m i t a t i o n s , the move to proceduralism as a re-

the reforms that could be employed to move the system in this

sponse to substantive difficulties has merit, as we w i l l see in part 3.

direction."

However, m o r e is required than a f o r m a l proceduralism based

F r o m p o i n t C, the greater power in the hands of an aroused

merely o n the character of democratic institutions. C o n s i d e r a t i o n

populace m i g h t well produce calls for p r o t e c t i o n against t y r a n n y

of procedures in the context of all the background conditions f o r

of the m a j o r i t y . Reinvigoration of the separation of powers, checks

l i b e r t y of p o l i t i c a l culture w i l l provide the basis for more a m b i -

and balances, and an activist judiciary determined to protect v a r i -

tious conclusions.

ous c o n s t i t u t i o n a l rights could move the system f r o m C to a p o i n t such as D , directly n o r t h . H o w e v e r , f r o m p o i n t D arguments about the greater c o m petence of representatives could be employed to undermine the earlier p r o l i f e r a t i o n of referendums, primaries, t o w n meetings, and other direct institutions, so as to return the system to our o r i g i n a l status q u o , point A . Each step in this scenario relies o n values that are deeply rooted w i t h i n the general family of democratic arguments/ M o v e m e n t south depends on the emphasis of

2.1 Criteria

for an Acceptable

Theory

If I am correct about the impediments to systematic versions of liberalism, where does that leave efforts to reconstruct

lib-

eral theory? Perhaps the aspirations of systematic theory demand too m u c h . It may be possible to define criteria for an acceptable theory, criteria w h i c h it is possible for some versions of liberal theory to f u l f i l l , but w h i c h are, nevertheless, far less ambitious than the requirements for systematic theory. I propose that we consider four criteria for an acceptable theory of the first principles of a liberal state. Such a theory, at the least, should provide e x p l i c i t grounds for satisfying these c r i t e r i a : 1. It should differentiate

among alternatives: i t should p r o -

vide an e x p l i c i t basis for d e t e r m i n i n g , if only incompletely, w h i c h states are better than other states, selecting preferred

one

or a few

most

states f r o m a plausible construction of the feasible set.

There are t w o crucial ways in w h i c h the theories considered here fail this c r i t e r i o n . They can be distinguished as: (a) vacuousness:

a theory can tail to differentiate by legitimat-

i n g all (or v i r t u a l l y all) the realistic possibilities; (b) blind alleys:

a theory can fail to differentiate by r u l i n g out

all the realistic possibilities.

S t r a t e g i e s ©f ^@fonsS7ticH@n

Criteria for o n a s s e m b l e Theory

Vacuous theories legitimate too m u c h ; blind-alley theories leg i t i m a t e too little. We w i l l find that some forms of consent theory

43

that the e x p l a n a t i o n for that obligation should apply to all those who

must c o m p l y w i t h the o b l i g a t i o n . Since part of the very

t u r n out to be vacuous. A n d if we assume, as 1 d o , that we live

notion of having a state is that the state apply its a u t h o r i t y univer-

in a w o r l d of states, one obvious way a theory couid produce

sal lv w i t h i n a given t e r r i t o r y , the individually b i n d i n g character

b l i n d alleys is t h r o u g h philosophical anarchism ( r u l i n g out all the

of its obligations must apply universally t h r o u g h o u t its t e r r i t o r y .

realistic possibilities).

The last p a r t of c r i t e r i o n 2, the particularity requirement, is

These are not the only possible ways of failing c r i t e r i o n 1 . A theory m i g h t , for example, offer no prescriptions

based on the n o t i o n that states have a claim on the loyalty of their

whatsoever.

citizens—a c l a i m that is not equally satisfied for those citizens by

H o w e v e r , these are the t w o ways that w i l l piay a roie in our argu-

any number of other states w i t h similar characteristics. O f course,

ment, so they are w o r t h distinguishing. Political philosophy fails to be prescriptive

those other states, if they are legitimate, may make similar claims if it telis us either

on their citizens. Just as I have obligations to my mother that 1 d o

that all the possibilities are absolutely unacceptable or that they

not have to total strangers, no matter h o w similar to my mother

are a l l equally acceptable. In failing either c r i t e r i o n 1(a) or 1(b),

those strangers may be, I have obligations to m y state, if it is a

p o l i t i c a l philosophy basically w o u l d be telling us that there was

legitimate state, that I do not have to any number of other states,

n o t h i n g to choose f r o m among the alternatives. Theories failing

no matter h o w similar to my state those states may be. If I am a

these criteria w o u l d h o l d that, even as a matter of aspiration, no

citizen of state X , i t is my state in the sense that 1 owe special o b l i -

distinctions need to be made and no guidance needs to be offered

gations to i t . I am assuming that if a theory of the first principles

about the most basic differences among p o l i t i c a l systems. If these

of a liberal state p u r p o r t s to explain the obligations of citizens to

m i n i m a l criteria cannot be satisfied, then i n an i m p o r t a n t sense

support i t , then the special character of those political obligations

the subject w o u l d have n o t h i n g to offer. I am assuming that an

needs to be accounted for.

adequate theory must, at the least, make some distinctions a m o n g states a n d , in that sense, be prescriptive. 2. A n acceptable theory should be individually

3. A n acceptable theory should solve or deal successfully w i t h the jurisdiction

binding.

For

problem.

By this I mean that the fundamental

basis a theory offers for its prescriptions should not p r o v i d e rival

each person subject to its a u t h o r i t y , the state should have an ex-

theories (offering rival prescriptions) w i t h grounds for c l a i m i n g

p l a n a t i o n for w h y that person is obligated to u p h o l d the regime.

jurisdiction over the result—grounds for c l a i m i n g that their pre-

' I his c r i t e r i o n can be b r o k e n d o w n into t w o parts:

scriptions have the same justification. Such j u r i s d i c t i o n problems

(a) T h e scope of the individually b i n d i n g requirement must be universal

for those subject to its a u t h o r i t y .

(b) T h e manner must be particular or satisfy the p a r t i c u l a r i t y requirement; that is, the citizen must not be equally o b l i gated to u p h o l d regimes other than his o w n as part of his political obligation.

1

Legitimate states h o l d that individuals are obligated to u p h o l d and obey their authority. The basic idea of c r i t e r i o n 2 is merely

undermine the sense i n w h i c h a theory can be taken to solve anyt h i n g . If, for example, rival courts claim j u r i s d i c t i o n over the same issue, the mere fact that each m i g h t give us a k i n d of i m p a r t i a l decision does not help us to resolve the issue until we find some way to resolve, in t u r n , the jurisdictional conflicts among the courts' claims to decide. We w i l l see that the rivalries among theoretical "decision procedures" pose a similar p r o b l e m , leaving us w i t h no court or decision procedure for choosing among them. 4. A n acceptable theory should satisfy criteria 1—3

without

44

S t r a t e g i e s ©}

f a l l i n g i n t o indoctrination

45

feionstresfiim

problems.

The manner of establishing

o b l i g a t i o n s and their acceptance should not be subject to a de-

poses a constructive strategy that does p u r p o r t to satisfy all of these criteria.

l e g i t i m a t i n g charge that people were brainwashed or coercively m o l d e d so as to support the regime in the required way. We need, of course, a more detailed, constructive account of w h a t w o u l d constitute n o t being brainwashed or coercively m o l d e d . This p r o b lem w i l l detain us later at some length. These are criteria w h i c h a libera! theory of the state must satisfy i f it is to offer authoritative prescriptions—at the levels of b o t h social and i n d i v i d u a l choice. The key social-choice question is: W h i c h states are better than others? The key individual-choice question is: W h y are individuals w i t h i n a state bound to supp o r t the answer to the social-choice question? To deal w i t h the social-choice question, an acceptable theory should differentiate a m o n g alternatives so as to satisfy c r i t e r i o n 1. To deal w i t h the i n d i v i d u a l - c h o i c e question, members should be bound to u p h o l d the social-choice response so as to satisfy c r i t e r i o n 2. To deal adequately w i t h both of these questions, a theory must also conf r o n t c r i t e r i o n 3 : i f a theory's implications are to be authoritative, they must avoid j u r i s d i c t i o n problems; that is, they must avoid p r o v i d i n g a fundamental basis for rival theories to provide i n c o m patible prescriptions. Theories bedeviled by j u r i s d i c t i o n problems u n d e r m i n e their o w n authority. Finally, i n d o c t r i n a t i o n problems must also be avoided i f the theory's prescriptions are to be aut h o r i t a t i v e ; if their apparent authoritativeness rests on collective b r a i n w a s h i n g , then they are subject to obvious, delegitimating arguments. Hence, a theory needs to satisfy all four of our criteria i f it is to provide an authoritative basis f o r choice at b o t h the social- and individual-choice levels. M o s t of part 2 w i l l juxtapose these criteria w i t h a scheme for classifying the basic strategies available to liberal theory tor establishing its first principles. I w i l l argue that all but one of the strategies can be expected to fail one or more of the criteria just proposed. T h i s argument w i l l set the stage for part 3, w h i c h p r o -

2.2 Beyond

Intuitionism

Our first c r i t e r i o n challenges us to decide whether a theory can distinguish a m o n g the range of relevant alternatives, i t requires that an acceptable version of liberal theory provide an e x p l i c i t basis for d i s t i n g u i s h i n g the morally preferred p o l i t i c a l arrangement (or a l i m i t e d class of such arrangements) f r o m most of its serious rivals. By "serious r i v a l s " I mean p o l i t i c a l alternatives w i t h i n some plausible construction of the feasible set, and for w h i c h significant philosophical claims have been advanced. O f course, w h a t is meant by " l i b e r a l i s m " or " l i b e r a l t h e o r y " is itself a matter of considerable dispute. We can generally distinguish t w o approaches to this problem. One approach w o u l d classify normative theories or ideologies as " l i b e r a l " in terms of what they prescribe, w h i l e another approach w o u l d classify them in terms of how

they prescribe i t . The first approach relies o n

the substantive prescriptions resulting f r o m a theory, w h i l e the second relies on the kinds of arguments employed by a theory to support its substantive prescriptions, The first strategy is exemplified by M a u r i c e Cranston's q u i p : " A liberal, i suppose one could say, is a person w h o believes in liberty, as a nudist is a person w h o believes in n u d i t y . " As liberals 1

are those w h o believe in liberty, liberal theories, o n this view, are those w h i c h offer systematic justification or support for liberty. By contrast, the second strategy w o u l d identify as " l i b e r a l " those theories w h i c h employ a certain mode of argument. A n example is Ronald D w o r k i n ' s claim that "a certain conception of equality, w h i c h I shall call the liberal conception of equality, is the nerve of l i b e r a l i s m . " ' D w o r k i n means by equality a certain l i m i t a t i o n o n the arguments w h i c h it is appropriate for the state to employ in justifying its policies. Whatever their other differences, 5

Rawls's

46

Strategies s i g e í s n s t r u s f í r a

g-eyoriet I n t u i t i o n i s m

47

t h e o r y of justice, Aekerman's n o t i o n of " n e u t r a l d i a l o g u e , " and

for the trade-offs between fundamental principles such as l i b e r t y

the recent attempts to reconstruct utilitarianism all rely o n a f o u n -

and equality. If the trade-offs between all competing principles

d a t i o n a l conception of i m p a r t i a l i t y or equal consideration as a

can be fully captured by a series of clearly ranked indifference

strategy for d e r i v i n g the first principles of a liberal state;

curves, let us call the p o s i t i o n that results systematic i n t u i t i o n i s m .

1

6

We need not decide the question here whether liberalism is best

This position does not represent the absence of a theory p r o v i d -

defined in terms of its substantive conclusions or in terms of its

ing p r i o r i t y rules. Rather, it embodies a complex statement of a

modes of argument for those conclusions. The position 1 w i l l de-

single clear p r i o r i t y rule: Prefer alternatives o n the most highly-

velop can plausibly be classified as " l i b e r a l " on either account. O n

ranked indifference curve achievable.

the one hand, its centerpiece w i l l be an attempt to justify the p o l i t i -

moral considerations are adequately captured by the indifference-

cal liberties of t h o u g h t , belief, and association—prescriptions that

curve analysis, there is no indeterminacy about h o w to evaluate

have long been at the core of whatever substantive consensus l i b -

any alternatives that may present themselves. Systematic i n t u i t i o n -

Provided that all of the

eralism has achieved. O n the other hand, my argument for liberty-

ism of this k i n d is not really i n t u i t i o n i s m , precisely because it is

w i l l depend o n recognizably liberal methodological assumptions.

systematic. I t is simply the use of a distinctive device for stating a

It w i l l , in fact, be based on a claim about the conditions under

complex principle that is supposed to have clear p r i o r i t y over all

w h i c h certain forms of m o r a l evaluation w o u l d be possible i n a

competing considerations.

liberal state.

It is the unsystematic variety of i n t u i t i o n i s m — w h e r e the m o r a l

W h y do our criteria require an " e x p l i c i t " basis? By this I mean

c o m p l e x i t y of possible trade-offs has not been reduced to a series

that criteria must be offered spelling out the proposed p r i o r i t i e s .

of ranked indifference curves—that represents a basic challenge

Relying solely on " i n t u i t i o n i s m " is not enough. The intuitionist is

to the theoretical aspirations of liberal political philosophy. U n -

c o m m i t t e d to a plurality of principles w i t h o u t any clear weights

systematic i n t u i t i o n i s m leaves us w i t h o u t guidance. We are stuck

or p r i o r i t y rules and w i t h o u t any m e t h o d for resolving conflicts

w i t h incommensurable, c o n f l i c t i n g factors whose relations to one

a m o n g t h e m . The label " i n t u i t i o n i s t " indicates that a person has

another are regarded as a matter of unsettlable dispute. A t most

no further e x p l i c a t i o n of the trade-offs to w h i c h he is c o m m i t t e d

we may k n o w w h i c h factors to weigh. However, even the meta-

in p a r t i c u l a r cases. I n t u i t i o n i s m is, i n an i m p o r t a n t sense, the

phor of " w e i g h i n g , " standard though it is, is misleading. T h e

absence of a theory.

absence of any c o m m o n metric for comparing incommensurable

5

H o w e v e r , suppose there were a very decisive i n t u i t i o n i s t w h o

considerations is itself a central part of the p r o b l e m . ' I t is the

c o u l d always select his preferred alternative f r o m a list w i t h i n the

mysteriousness of i n t u i t i o n i s m , leaving each of us to c o n f r o n t con-

feasible set. W o u l d this ability to determine preferred alternatives

flicting ultimate principles w i t h o u t further guidance, that violates

satisfy o u r criteria? I t w o u l d still fall short because the basis f o r

the " e x p l i c i t n e s s " requirement of our criteria.

s e l e c t i o n — i f i t were t r u l y i n t u i t i o n i s t — w o u l d defy further ex-

Yet the m a i n thrust of m y argument thus far has been that

p l a n a t i o n . I n this connection, we should distinguish w h a t m i g h t

unsystematic i n t u i t i o n i s m is unavoidable. Liberal theory, i n par-

be called systematic

variety

ticular, must inevitably assign a p r i m a r y role to i n t u i t i o n i s m ; it is

that falls c r i t e r i o n 1 (see section 2.1 above). Some w r i t e r s , most

beyond any reasonable construction of its capacities to produce

n o t a b l y B r i a n Barry, have experimented w i t h indifference curves

a full-fledged systematic alternative.* Such a conclusion w i l l not

intuitionism

f r o m the unsystematic

48

S t r a t e g i e s tá

Beyorid InfytHsnism

Resmastrsstiwî

only be d i s a p p o i n t i n g to many, but it w i l l also appear to foreclose completely the prospects that any construction of liberalism w i l l satisfy our criteria for an acceptable theory. However, this pessimistic conclusion is mistaken. As we w i l l see in part .3, other strategies h o l d promise for satisfying our criteria despite all the negative and l i m i t i n g conclusions developed here. W h y should we be concerned w i t h these criteria? Why, for example, should we require an explicit basis for selecting a m o r a l l y preferred state f r o m the feasible set (criterion 1)? W i t h o u t passing even this m i n i m a l test, liberal theory seems to be n o t h i n g more than a bundle of conflicting principles o f f e r i n g us no definite d i r e c t i o n , even for our aspirations. As Bruce Ackerman has argued, a successful case for the morally preferred state w o u l d dispatch, at a stroke, the charge that liberalism, philosophically", is n o t h i n g more than "a p i t i f u l blob of s e l f - c o n t r a d i c t i o n . " " It is for this reason that his theory, along w i t h the other main attempts to revive liberal theory, adopts a version of this c r i t e r i o n as its m a i n order of business. If a theory's prescriptions are so easy to f u l f i l l that most states already satisfy t h e m , then it fails our first c r i t e r i o n because it is vacuous. O n the other hand, if its prescriptions are impossibly d i f f i c u l t to f u l f i l l , so that all the serious possibilities are ruled o u t , then it fails our first c r i t e r i o n by landing us in a b l i n d a l l e v — by l i m i t i n g its prescriptions to possibilities that fall outside the feasible set. W h a t we require is some basis for distinguishing the m o r a l l y preferred state f r o m most or all of the rival alternatives that deserve to be taken seriously. O f course, we can only consider the range of alternatives i n f o r m a l l y . There are always new possibilities to be imagined or invented, new objections to be weighed, new implications of f a m i l iar principles in new situations. Given these complexities, it seems q u i x o t i c to expect to narrow the range of possibilities to one preferred alternative. F u r t h e r m o r e , the alternatives for w h i c h serious philosophical

49

claims have been advanced w i l l vary f r o m one p e r i o d to another. There w i l l be similar v a r i a t i o n in our understanding of the range of feasible alternatives and of the probable collective and i n d i v i d u a l responses to various empirical conditions, I need to assume o n l y that the state of debate is robust:

that a w i d e variety of alterna-

tives is advanced w i t h sophistication f r o m a wide variety of m o r a l and ideological perspectives. These criteria are really a s h o r t - h a n d device for assessing w h a t one proposal or another contributes to the current state of theoretical debate.' They are merely a w a y 0

of f o r m u l a t i n g the p r o b l e m : W h a t does any given proposal contribute to the state of debate about the fundamental alternatives available to libera! theory? Our

question is: Can liberalism produce any definite conclu-

sions about its m o r a l p r i o r i t i e s , at least when favorable conditions are assumed? If these definite conclusions do not n a r r o w the alternatives to one, they should eliminate everything but a l i m i t e d subclass whose members are essentially equal in their realization of significant prescribed values. We should be able to characterize w h y and h o w the members of this subclass are equivalent and how they are, together, distinctive compared to the f u l l range of rival possibilities. W h a t are the g r o u n d rules for determining the feasible set of alternatives? I w i l l f o l l o w Rawls and assume the favorable conditions of w h a t he calls "ideal theory."

M

I w i l l assume g o o d - f a i t h

efforts at strict compliance w i t h the principles proposed, b o t h i n the present and i n the relevant recent past.

12

Furthermore, I w i l l

assume only "moderate scarcity" and not the extreme

scarcity

of resources that blights many countries today in the t h i r d (and fourth) w o r l d .

1 3

The first task for liberal theory is to prescribe a preferred solution under an o p t i m i s t i c scenario of conditions. Unresolvable dilemmas or t r o u b l i n g indeterminacies w o u l d not be surprising under situations of tragic conflict or of extreme scarcity. But acceptable versions of liberal theory should be able to differentiate

50

51

ï»elrHîd Thought gxjMmmests

the most preferred alternative (or a subclass of equivalents) under

Figure 2. Decision Procedures

favorable conditions w h e n they are insulated f r o m these c o m p l i -

2 3 Political

Thought

Situations

Motivations

cations..

Experiments

Actual

Hypotht

Brute

1

2

Refined

4

3

Recent liberal theory has been distinctive for its thought experiments: t r a n s p o r t i n g us to an imaginary situation or t r a n s f o r m i n g our m o t i v a t i o n so that we choose p o l i t i c a l principles under con-

Category 2 transforms the situation for choice but not the m o t i -

d i t i o n s i n w h i c h only the m o r a l l y relevant factors bear on the

v a t i o n . The state of nature i n Robert N o z i c k ' s Anarchy,

decision. T w o kinds of imaginary devices have been e m p l o y e d —

Utopia

changes i n the s i t u a t i o n of choice and changes in the m o t i v a t i o n

there should be a state at all to the "best anarchic s i t u a t i o n one

( w i t h i n w h i c h I include filtering requirements by w h i c h only cer-

reasonably c o u l d hope f o r . ' " The motivations of people i n this

tain m o t i v a t i o n s are selected, w h i l e the rest are prevented f r o m

state of nature are not altered; they must be given a realistic

bearing o n the decision). W h e n the m o t i v a t i o n for choosing p r i n -

construction. We are to assume that some w o u l d j o i n

1

State

and

is a g o o d example. We are to take the question whether 1

protec-

ciples has been altered or filtered i n the interests of i m p a r t i a l i t y , (

t i o n associations v o l u n t a r i l y ; others w o u l d choose to be indepen-

w i l l classify i t as " r e f i n e d " ; when people choose, or are imagined

dent. As we w i l t see later, a major problem facing N o z i c k ' s argu-

to choose, w i t h unaltered m o t i v a t i o n (as, realistically, we w o u l d

ment is whether his scenario for the m i n i m a l state is compatible

expect t h e m to do i n actual life), 1 w i l l classify those m o t i v a t i o n s

w i t h a realistic construction of people's preferences—whether,

as " b r u t e . " W h e n the situation for choosing principles is the one

particular, independents w o u l d be fully "compensated" i n being

in w h i c h those w h o must abide by the principles live together

forced to j o i n the state.

in

5

as an o n g o i n g enterprise, i w i l l classify it as an " a c t u a l - " choice

Category 3 transforms not only the situation, as i n category 2,

s i t u a t i o n . W h e n the situation for choice is an imaginary one, held

but also the m o t i v a t i o n s for choice in that situation. For example,

to be m o r a l l y relevant, but not the situation in w h i c h those w h o

in Rawls's o r i g i n a l p o s i t i o n , agents are to choose principles of

must abide by the principles must live together as an o n g o i n g

justice so as to m a x i m i z e their shares of p r i m a r y goods w i t h o u t

enterprise, 1 w i l l term it " h y p o t h e t i c a l . " These distinctions are

k n o w i n g w h o i n particular they w i l l t u r n out to be once the veil

represented i n figure 2.

of ignorance is l i f t e d . They are endowed w i t h an abstract prefer-

2

A n example of category i is offered by actual-consent theory.

ence for p r i m a r y goods regardless of the details of their actual life

A c c o r d i n g to this approach, if people consent in real life, they are

plans; they w i l l k n o w the latter only after the principles o f justice

obligated to u p h o l d the state; if enough (whatever that means)

have been chosen. I n Ackerman's spaceship dialogues, entrants

do actually consent, then the state is held to be legitimate and,

to a new w o r l d argue over the d i s t r i b u t i o n of " m a n n a " t h r o u g h a

somehow, everyone is obligated. M o t i v a t i o n and situation are as 3

filtering device for relevant arguments (the " n e u t r a l i t y " assump-

we find t h e m . N e i t h e r Is subjected to some t r a n s f o r m a t i o n in the

t i o n ) . The perfectly sympathetic spectator of the classical u t i l i -

name of i m p a r t i a l i t y or moral relevance.

tarians has b o t h an imaginary vantage p o i n t (omniscience) and a

6

52

S3

The Q u e s t f o r Consent

Strategies of ^e^onstructioii

postulated m o t i v a t i o n (he reproduces in himself every pain and

2.4 and 2.5. The difficulties in category 3, the main focus of recent

pleasure in the w o r l d and, hence, w i l l prefer states of the w o r l d

theoretical activity in liberalism, w i l l be our subject in sections

that m a x i m i z e the net balance o f pleasure over pain).

2.6 and 2.7. Last, the o p p o r t u n i t y represented by category 4 w i l l

O f the possibilities presented in figure 2, the basic difficulty

be our subject i n part 3.

w i t h the t o p - r o w categories ( I and 2) is that they are subject to i n d o c t r i n a t i o n problems, while the basic difficulty w i t h the right-

2.4 Category

c o l u m n categories (2 and 3) is that they are subject to j u r i s d i c t i o n

1: The Quest for

Consent

problems. The only possibility offering a prospect for avoiding

In the simplest of our four categories (box I i n figure 2), we are

b o t h is category 4 (the l e f t - b o t t o m quadrant). M y proposal is an

dealing w i t h brute preferences and an actual, rather than a hypo-

instance of that approach.

thetical, s i t u a t i o n . M y basic c l a i m about the " b r u t e " categories

A similar p o i n t can be made about our other criteria. Consider

(whether actual as in box 1 or hypothetical as in box 2) w i l l be that

the varieties of actual-consent theory that fit in category 1, T h e

they are rendered vulnerable to i n d o c t r i n a t i o n problems by their

p r o b l e m w i t h universal express-consent w i l l t u r n out to be that

lack of a refinement mechanism for purging motivations of bias.

it violates c r i t e r i o n 1(b) in section 2 . 1 . As W o l f f shows, to re-

Their v u l n e r a b i l i t y takes the f o r m of a dilemma: n o t h i n g in the

q u i r e that everyone expressly agree to the state is to require the

strategy rules out extreme efforts at i n d o c t r i n a t i o n , but w i t h o u t

b l i n d alley of philosophical anarchism. Alternatively, the p r o b l e m

such i n d o c t r i n a t i o n , the strategy cannot plausibly be interpreted

w i t h universal tacit consent w i l l t u r n out to be that it violates

as leading to determinate results that satisfy our other criteria, in

c r i t e r i o n 1(a). In order to get everyone committed to support-

particular, criteria I and 2 — t h e requirements that our theory be

ing the state, the criteria for consent are loosened to the p o i n t

nonvacuous, that it avoid b l i n d alleys, and that it produce obliga-

that v i r t u a l l y any state can c l a i m universal consent. Such an ap-

tions that are i n d i v i d u a l l y b i n d i n g . Together, these criteria require

proach produces vacuous results by legitimating v i r t u a l l y every-

some differentiated solutions and bind us to them.

t h i n g . F u r t h e r m o r e , the problem w i t h nonuniversal tacit consent

The basic p r o b l e m w i t h category 1 is that it is vulnerable,

w i l l t u r n out to be that it violates c r i t e r i o n 2(a). W i t h i n the con-

genericaliy, to i n d o c t r i n a t i o n problems. Furthermore, each ver-

fines of actual-consent theory, those w h o d o n ' t consent have no

sion of category i w i l l fail one aspect or another of our first t w o

reason to believe themselves obligated to uphold the law. T h e

criteria.

i n d i v i d u a l l y - b i n d i n g criterion is not satisfied because the obligat i o n is not universal. By contrast, the p r o b l e m w i t h

hypothetical

Recall that all four categories concern decision situations (real or imagined) for j u s t i f y i n g a state, either by choosing the state (or

contract theories w i l l t u r n out to be that w h i l e they may satisfy c r i -

its basic character) e x p l i c i t l y or by choosing the principles that

teria I and 2, they violate criterion 3. They are inherently subject

justify i t . For theories i n each of our four categories, it is i m p o r -

to j u r i s d i c t i o n a l challenge.

tant to ask whether the choice i n question must be unanimous,

But i n h i n t i n g at h o w some main strategies violate one or another o f our criteria, we are j u m p i n g ahead of ourselves.

Let

us t u r n to each category in greater detail, The rest of this b o o k

and w h a t k i n d of agreement or consent is required of each participant (whether or not the n o t i o n of agreement is interpreted strictly, an issue I w i l l attempt to refine further b e l o w ) .

is largely organized around the possibilities presented in figure 2.

W i t h these distinctions i n m i n d , my basic point about cate-

1! he difficulties in categories I and 2 w i l l be our subject in sections

gory 1 theories w i l l be that they are, as a general matter, subject

54

S t r a t e g i e s ©f K e t s n s f i m t i M

Figure 3. Options in Category I

all issues of public decision: "Since by the rule of u n a n i m i t y a

CATEGORY 1 THKORIES (subject to indoctrination problems violating criterion 4)

Normnamnious (violates criterion 2)

55

The Quest f o r Consent

single negative vote defeats any m o t i o n , the slightest disagreement over significant questions w i l l b r i n g the operations of the society

A

to a halt. It w i l l cease to f u n c t i o n as a political c o m m u n i t y and fall

Unanimous J \ Loose (violates Strict (violates criterion 1 fa|) criterion l [ b j )

legitimacy; a de facto government may of course emerge and take

into a c o n d i t i o n of anarchy (or at least into a c o n d i t i o n of n o n control)."

2

Given a realistic construction of the variety of preferences i n a m o d e r n large-scale society, it is implausible to suppose that unanimous voluntary agreement w i l l maintain itself. Once it breaks

to i n d o c t r i n a t i o n problems. I n a d d i t i o n , they are vulnerable to

d o w n , the prescription that results—namely,

v i o l a t i o n s o f one or another of our other criteria, as shown i n

relevant co our p r o b l e m of differentiating among states. For this

figure

J.

anarchism—is

ir-

reason, the requirement for unanimous consent i n the strict sense

I heories fitting category 1 either require unanimous agreement or s u p p o r t , or they do not. If they do not, then they are vulner-

can be taken as a v i o l a t i o n of criterion 1(b), the no-blind-alleys requirement.

able to c r i t e r i o n 2 because they lose their individually b i n d i n g

O f course, we m i g h t imagine a coercive system of collective

character. If they do require unanimous agreement, then if that

brainwashing that produced near-perfect homogeneity of prefer-

agreement is loose, m y claim w i l l be that i t leads to violations

ences, perhaps o n the order approaching w h a t w o u l d be required

of c r i t e r i o n 1(a), by p r o d u c i n g vacuous results. It legitimates t o o m u c h to differentiate among states. O n the other hand, i f the n o t i o n of agreement required is strict, then i t leads to violations of c r i t e r i o n 1(b) by, i n effect, r u l i n g o u t all the possibilities and creating a b l i n d alley.

to support c o n t i n u i n g u n a n i m i t y in the large-scale nation-state. But such a system, even if it were successful, w o u l d not produce unanimous v o l u n t a r y agreement. It could realistically be m a i n tained only t h r o u g h systematic m a n i p u l a t i o n and coercion, issues to w h i c h we w i l l r e t u r n i n part 3. In any case, a choice situation

i w i l l attempt to illustrate these difficulties by briefly exam-

that requires coercive collective thought c o n t r o l to s u p p o r t its

i n i n g some particular theories e x e m p l i f y i n g each alternative. A

conclusions exemplifies the other h o r n of our d i l e m m a : its results

g o o d example of a theory r e q u i r i n g actual unanimous agreement

are delegitimated because they rest on i n d o c t r i n a t i o n , thereby-

in the strict sense is Robert Paul W o l f f ' s argument for a system

violating c r i t e r i o n 4.

o f " u n a n i m o u s direct democracy" where "every member of the society w i l l s freely every law w h i c h is actually passed." The resultis that "he is only confronted as a citizen w i t h laws to w h i c h he has consented."

1

H o w e v e r , as W o l f f rightly admits, this solution "requires the

Suppose, however, that the no-agreement p o i n t were interpreted not as the b r e a k d o w n or cessation of the legitimate state (as in the passage quoted above), but simply as the c o n t i n u a t i o n of the status quo combined w i t h nonpassage of whatever policy produced disagreement. This possibility brings into relief some

i m p o s i t i o n of impossibly restrictive conditions w h i c h make it ap-

i m p o r t a n t differences between

plicable only to a rather bizarre variety of actual situations." The

situations. We can plausibly interpret an appropriately designed

reason is that we must imagine c o n t i n u i n g perfect agreement o n

hypothetical situation as a one-time-only event w i t h m o r a l rele-

hypothetical- and actual-choice

56

57

The Quest foF Consent

Strategies of R e i o r s s t r y s f i e n

vancc f o r whatever p o p u l a t i o n the situation is invoked. AH of

earlier decisions, and the consequences of policy omissions

those w h o are b o r n or enter the society at whatever time can par-

not consequences to w h i c h they have consented.' T h e b r e a k d o w n

ticipate i n the very same thought experiment: they can all imagine

of unanimous consent confronts such a theory w i t h violations of

themselves in Rawis's original p o s i t i o n , or in Ackerman's neu-

criterion 2. If I have not actually consented to such a law, h o w ,

are

tral dialogues, or they can all delegate the choice of principles to

w i t h i n the confines of this k i n d of actual consent theory, am 1

the same imaginary u t i l i t a r i a n spectator, There is no problem of

supposed to be b o u n d to u p h o l d it? W o l f f abandons this o p t i o n

past actual p a r t i c i p a t i o n not a p p l y i n g to new members ( i n c l u d -

because it is not t r u l y compatible w i t h i n d i v i d u a l autonomy. Be-

ing n e w l y b o r n ones) as compared to o l d ones; no one actually

cause his assumptions lead h i m to take strict unanimous choice

p a r t i c i p a t e d i n any of these imaginary scenarios, in any case.

seriously, he is led to anarchism and, hence, in our scheme, to

By contrast, actual-choice theories face the p r o b l e m that new

violations of c r i t e r i o n 1(b) (the blind-alley c r i t e r i o n ) .

members are b o r n , o l d ones die; new members arrive, o l d ones

The basic p o i n t is that if we interpret the u n a n i m i t y rule strictly,

leave. W h a t has unanimous support at one time may not have it

for an actual, o n g o i n g society rather than for a one-time-only

at another. Even if, somehow, the laws on the books were passed

hypothetical s i t u a t i o n , i t does not provide the basis for differen-

unanimously, there is no guarantee, as time goes o n , that each per-

tiating choices among nation-states.

son w i l l be " o n l y confronted as a citizen w i t h laws to w h i c h he has

conclude that the rule, w h e n taken seriously, implies anarchism.

consented." W h a t relevance does the unanimous consent of past

Alternatively, if unanimous agreement is given a looser interpre-

generations have to him? Ele is "subject to the w i l l of a n o t h e r "

tation, it is possible to escape anarchism and provide a basis for

just as m u c h as if he were an outvoted m i n o r i t y in a decision taken

morally acceptable states. The difficulty is that to get c o n t i n u -

in the present."'

ing unanimous agreement under realistic conditions, agreement

Rather, W o l f f is correct to

A related p o i n t is that policy omissions (failures to adopt new

or consent has to be defined so loosely that it provides no basis for

policies) can be just as salient and burdensome as policy commis-

differentiating conclusions. Rather, agreement defined so loosely

sions (the a d o p t i o n of new policies). There may be

unexpected

w o u l d legitimate a host of states indiscriminately. Relying on loose

emergencies, new issues, new requirements for action. The most

unanimous agreement w i l l lead, if taken seriously, to violations of

i m p o r t a n t issues of the moment may never have been previously

criterion '1(a), the nonvacuousness requirement.

decided, or even formulated as matters for public debate. The una-

The difficulties that lie d o w n this road are suggested by Locke's

n i m i t y rule, by g i v i n g everyone a veto, holds each of us hostage to

loosening of w h a t we have been calling strict agreement i n the

the w i l l of any other person w h o m i g h t block the required action.'

definition of tacit consent, as eventually developed i n the

1

As W o l f f makes clear, the special attraction of the u n a n i m i t y rule is that i t defines a system where "every member . . . w i l l s freely every law w h i c h is actually passed." As a result, he has " c o n s e n t e d " to every law w i t h w h i c h he is " c o n f r o n t e d . " H o w ever, once b o t h new issues and new members are taken into account, i t becomes implausible to claim that c o n t i n u i n g whatever policies were previously passed preserves unanimous s u p p o r t , at least for those policies. N e w generations were not party to those

Second

Treatise: The difficulty is, what ought to be look'ci upon as a tacit Consent. . . . And to this I say that every Man that hath any Possession or Enjoyment of any part of the Dominions of any Government doth thereby give his tacit Consent, and is as far forth obliged to Obedience to the laws of that Government, during such Enjoyment, as any one under it; whether this his Possession be of Land to him and his Heirs for ever, or a Lodging only for a Week; or whether it be barely travelling freely

m

S t r a t e g i e s of

Seconstrtístien

59

H i e Q » e s î for Consent

on the Highway; and, in Effect, it reaches as far as the very beans?; of anyone within the Territories of that Government/ 1

u n a n i m i t y i n a sense loose enough to legitimate some m o d e r n nation-states w o u l d legitimate too many to be useful for our purposes. W i t h i n the confines of unanimous-actual-choice theory, we

Once tacit consent is defined so broadly that receiving any bene-

are faced w i t h v i o l a t i n g either criterion 1(a) or c r i t e r i o n

fit—simply

using the king's highways, or even "the very being

in effect, the choice of l e g i t i m a t i n g too m u c h or of l e g i t i m a t i n g

of anyone w i t h i n the Territories of that Government"—-counts as

too little. One alternative, of course, w o u l d be to abandon the

consent, i t does become plausible to claim that the conditions for

u n a n i m i t y requirement entirely.

unanimous tacit consent can be continually fulfilled under real-

Eiowever, nonunanimous

1(b)—

versions of category 1 only seem to

istic conditions in a modern large-scale nation-state. So long as

encounter a d d i t i o n a l difficulties. Unanimous agreements, at least

someone has not explicitly rejected the state's l e g i t i m a c y — a n d

when undertaken v o l u n t a r i l y , appear to b i n d everyone w h o is

attempted to leave the country so as to relieve himself of all obliga-

party to them and, in that sense, provide a certain i m m u n i t y f r o m

tions to it—-he can be counted w i t h i n the f r a m e w o r k of tacit con-

further controversy. If acts of consent produce obligations in the

sent defined so loosely. As H a n n a Pitkin concludes in her critique

way that promises d o , then if everyone has consented, everyone is

of this d o c t r i n e of tacit consent, few states w o u l d be ruled out

obligated. We have at least some grounds for c o m m i t t i n g everyone

by this strategy: "Being w i t h i n the t e r r i t o r y of the w o r s t tyranny

to whatever policies and/or system was consented to—-regardless

in the w o r l d seems to constitute tacit consent to it and create an

of whatever else they m i g h t advocate.*

o b l i g a t i o n to obey i t . O n l y physical w i t h d r a w a l - — e m i g r a t i o n —

This basis for countering rival prescriptions seems to vanish

and the abandoning of all p r o p e r t y frees you f r o m that o b l i g a t i o n ;

once u n a n i m i t y breaks d o w n (or if it is never achieved). W h y

there is no such t h i n g as tacit dissent"

should / be obligated because you

The

(emphasis in o r i g i n a l ) .

7

consented, any more than I

basic difficulty is that w h e n agreement is interpreted

w o u l d be obligated because you promised? Even i f my v i e w is a

loosely, i t is plausible to include everyone in the state i n the

m i n o r i t y one, u n t i l we get some justification for s u b m i t t i n g the

agreement, but v i r t u a l l y no state is ruled o u t ; by contrast, w h e n

matter to m a j o r i t y rule (or to some other nonunanimous decision

agreement is interpreted strictly, it becomes implausible to include

rule), m y v i e w cannot be dispatched by c i t i n g the greater numbers

everyone i n the agreement, so v i r t u a l l y every state is ruled out (by

w h o support a rival view.'' The numerically predominant v i e w has

the requirement for u n a n i m i t y ) . Unanimous actual agreement is

often been m o r a l l y suspect and may well be in the f u t u r e .

far t o o d e m a n d i n g a c o n d i t i o n to provide the basis for conclusions

10

Consider w h a t happens to actual-consent theory once the i n -

among m o d e r n nation-states under realistic c o n d i -

evitability of nonconsent on the part of many is acknowledged

tions. A t the very least, realistic conditions w i l l require that there

—once, i n other w o r d s , the quest for u n a n i m i t y is abandoned.

be numerous complex questions affecting large numbers of people

Joseph Tussman's p o s i t i o n offers a good i l l u s t r a t i o n . He argues

w h o have c o n f l i c t i n g interests at stake, and c o n f l i c t i n g conscien-

that obligations to the state must derive f r o m the model of a

differentiating

tious o p i n i o n s about the result. Under such conditions, we cannot

" v o l u n t a r y o r g a n i z a t i o n " ; his argument builds o n the v i e w " t h a t

expect perfect u n a n i m i t y to m a i n t a i n itself v o l u n t a r i l y over time,

obligations are, or even must be, voluntarily assumed." H o w e v e r ,

inevitably, disagreements w i l l arise, b o t h about w h a t decisions

he is forced to c o n f r o n t the fact that

o u g h t to be made and about h o w people ought to make t h e m . To require c o n t i n u i n g u n a n i m i t y in the strict sense w o u l d effec-

any d e s c r i p t i o n o f a b o d y p o l i t i c , like the U n i t e d States, w o u l d have to

tively rule out the modern nation-state; to require c o n t i n u i n g

recognize that there are some, o r many, " c i t i z e n s " w h o c o u l d n o t be

60

S t r a t e g i e s of

l&eiotistrustion

?He Q u e s t f o r Consent

described as h a v i n g consented. There is no p o i n t to r e s o r t i n g to f i c t i o n

[engc i n c r i t e r i o n 2. If only some people consent, then it seems

to conceal this fact. It makes m o r e sense to speak o f the social c o m -

exceedingly problematical that those w h o do not consent w o u l d

pact as an ideal w h i c h is never completely realized. N o n - c o n s e n t i n g

be i n d i v i d u a l l y b o u n d to u p h o l d the result.

a d u l t citizens are, i n effect, like m i n o r s w h o are governed w i t h o u t t h e i r o w n consent. T h e p e r i o d o f tutelage and dependence is u n d u l y p r o l o n g e d . A n d this . . . is a failure o f p o l i t i c a l e d u c a t i o n .

!i

Tussman has simply attempted to w o r k t h r o u g h the i m p l i c a tions of the primacy that "consent of the g o v e r n e d "

It is arguable that actual-consent theory encounters these difficulties

because it is being employed to solve too m u c h . C o n -

sent is deeply r o o t e d in Western, especially A m e r i c a n , p o l i t i c a l ideology, i n the Declaration of Independence we are told about

(conceived

"Governments . . . d e r i v i n g their just powers f r o m the consent of

as actual, v o l u n t a r y agreement) has i n American p o l i t i c a l culture.

the governed." By being employed to solve " t o o m u c h , " I mean

B u t the result is an incoherent theory of political o b l i g a t i o n be-

that consent theory is being employed to address t w o separate

cause of w h a t he calls the " s h r i n k a g e " of the body p o l i t i c to a

questions simultaneously. W h i c h states are more legitimate or

subgroup of the politically self- conscious. Their agreement cannot

morally appropriate than others? and W h y am 1 (or any other

obligate the others any more than my promise could obligate y o u .

member) obligated to obey or u p h o l d the authority of my state?

If there were some magic percentage beyond w h i c h support

In other w o r d s , consent theory is c o m m o n l y applied (a) to the

was w i d e l y , and justifiably, acknowledged to be b i n d i n g on every-

social-choice p r o b l e m of evaluating and c o m p a r i n g states and

one, then the shrinkage problem w o u l d not undermine nonunani-

(b) to the individual-choice problem of establishing one's linkage

mous actual agreements as a fundamental basis for p o l i t i c a l p r i n -

to the state t h r o u g h p o l i t i c a l o b l i g a t i o n . There is, as we w i l l see

ciples. But there Is no such magic percentage. It is certainly not

in part 3, a natural connection between these t w o questions. But

50 percent plus 1 ( m a j o r i t y rule). M a j o r i t i e s , like other w i n n i n g

actual-consent theory provides too slim a basis for resolving b o t h

coalitions, can sanction or support unjustified and drastic actions

simultaneously.

whose consequences are felt by losing coalitions. F r o m M a d i s o n ,

The difficulty is that if consent is to serve as a self -sufficient

Tocqueville, and M i l l to the present, avoiding the possibilities f o r

response to the individual-choice problem of political o b l i g a t i o n ,

t y r a n n y of the m a j o r i t y has been one of the central tasks of m o d -

it is rendered v i r t u a l l y useless as a self-sufficient response to the

ern

democratic theory. - Increasing the percentage required for

social-choice p r o b l e m of comparing states. The reason for this

a p p r o v a l does not solve the p r o b l e m ; it only makes passage of new

c o n u n d r u m is, basically, that if actual consent is to provide a

policies o r legislation more d i f f i c u l t - — w h i c h means more people

basis for everyone's p o l i t i c a l obligations to the state, then every-

may be frustrated by having to experience the consequences of an

one must have consented. Something approaching unanimous or

u n w a n t e d status q u o .

1

O f course, once a system has been estab-

universal consent is required. But if unanimous consent is given a

lished, those w h o are already bound to it for whatever reason

strict i n t e r p r e t a t i o n , then, as W o l f f illustrates, v i r t u a l l y all states

may then find that they are also bound to u p h o l d m a j o r i t a r i a n -

are ruled out. O n the other hand, if unanimous consent is given

approved results f r o m w h i c h they dissent. But we are p r o b i n g

a loose i n t e r p r e t a t i o n — l o o s e enough to apply to everyone, say,

arguments about the fundamental issue of w h a t binds them to the

w i t h i n the t e r r i t o r y (so as to get them all obligated to obey the

system i n the first place. W h a t these points amount t o , at bot-

state)-—then meaningful differentiations among states are lost (as

t o m , is that nonunanimous-actual-consent

theory, in a v o i d i n g the

we saw w i t h Locke's loosening of tacit consent), i t is always, of

problems w i t h criteria 1(a) and 1(b), faces a fundamental chai-

course, possible to abandon the u n a n i m i t y requirement, but that

u

62

63

t h e Quest for Consent

Strategies of S e i o n s t u j i t i e n

w o u l d produce an incoherent theory of political o b l i g a t i o n (one

t 0

it w h i l e , at the same time, a d m i t t i n g that not everyone had

in w h i c h 1 a m obligated because you consented). W h a t this shows

c0

is that the aspiration overreaches to employ actual-consent theory

leading to violations of c r i t e r i o n 2.

simultaneously as the basis for b o t h the social choice-problem of

n s e n t e d , an incoherent account of political o b l i g a t i o n resulted, But perhaps the basis for mora! prescriptions in a given society

evaluating states and the individual-choice problem of his p o l i t i -

is not every individual's

cal o b l i g a t i o n . Actual-consent theory certainly may have a role,

standings of the society. W h i l e every single i n d i v i d u a l has not

but if cannot be employed to provide the sufficient conditions for

consented to those understandings, they are widely acknowledged

the s o l u t i o n of b o t h problems at the same t i m e .

14

By contrast, theories of hypothetical—as opposed to actual-—

consent but the collective, shared under-

and their status as shared conventions m i g h t arguably s u p p o r t their a p p l i c a t i o n to the society in question. In this way, some

consent may be employed for b o t h problems. They can, in a sense,

variation of nonunanimous-actual-consent

apply universally to everyone w i t h i n a t e r r i t o r y , w h i l e at the same

ployed for social-choice judgments about the legitimacy of the

t i m e y i e l d i n g differentiating conclusions. Rawis's theory of justice

state w i t h o u t also being required for individual-choice judgments

is a p r i m e example. It purports to provide distinctive, significant

of p o l i t i c a l o b l i g a t i o n . I n a way, this o p t i o n can be t h o u g h t of

conclusions and it ties those conclusions to a k i n d of c o n s e n t —

as an attempt to employ nonunanimous-consent

they are the conclusions we ourselves w o u l d supposedly reach, to

evaluation of the state, w h i l e relinquishing the previous a m b i t i o n

the extent that we were rational and to the extent that we judged

to provide a theory of p o l i t i c a l obligation as well (or at least one

the p r o b l e m under ideally fair conditions.

that relies o n the analogy between acts of consent and promises).

But Rawis's theory does not affect the conclusions just reached

M i c h a e l Walzer's argument in Spheres

theory m i g h t be em-

theory for the

of Justice

exemplifies

about actual-consent theory, i n Rawis's theory, universal consent

this strategy.

w i t h i n the t e r r i t o r y is achieved only t h r o u g h a scenario that de-

this k i n d , it can usefully illustrate the difficulties i n this general

parts f r o m the l i m i t s of realism. The purely imaginary character

a p p r o a c h — b r u t e actual-choice theories that are nonunanimous

of the scenario renders it vulnerable to j u r i s d i c t i o n problems f r o m

in their requirements.

r i v a l scenarios that also p u r p o r t to tell us w h a t we w o u l d , r a t i o -

qualitatively distinct "social goods" and that " i n t e r n a l " to our

nally, choose under fair or i m p a r t i a l c o n d i t i o n s — b u t w i t h slight

"shared u n d e r s t a n d i n g " of each good are criteria for its d i s t r i -

variations i n the notions of rationality or i m p a r t i a l i t y . As we w i l l

b u t i o n w i t h i n its o w n sphere. " T y r a n n y " occurs w h e n a given

see below, any differentiating conclusions that result can easily be

good is d i s t r i b u t e d for reasons irrelevant to those c r i t e r i a , t y p i -

evaded by r i v a l constructions of the hypothetical story. W h a t we

cally t h r o u g h c o m m a n d over other goods ( f r o m another sphere)

are t e r m i n g category 3 theories such as Rawis's have the merit

w h i c h are " d o m i n a n t , " such as capital. T h u s , medieval Christians

that they may satisfy criteria 1 and 2 but they are genericalty

condemned the sin of simony, for example, because "the mean-

vulnerable to c r i t e r i o n 3, j u r i s d i c t i o n problems.

ing of a particular social g o o d , ecclesiastical office, excluded its

R e t u r n i n g to category

1 and variations o n actual-consent

15

Because i t is the most sophisticated recent effort of

sale and p u r c h a s e . "

17

16

Walzer's central c l a i m is that there are

Similar objections apply to p r o s t i t u t i o n and

theory, the nonunanimous-choice strategies ran into trouble be-

b r i b e r y ; given certain "shared understandings" about h o w sexual

cause they employed consent as the basis for p o l i t i c a l o b l i g a t i o n as

gratification and p o l i t i c a l power are supposed to be d i s t r i b u t e d ,

well as for a theory of the legitimate state. Because they proposed

the i n t r u s i o n of money is a m o r a l l y irrelevant determinant, one

that we regard everyone w i t h i n the state's territory as obligated

that perverts those shared understandings.

S t r a t e g i e s o i ResBiistruitissn

64

The Quest f o r Consent

65

Walzcr believes that a distinctive theory of justice can be devel-

nels for p o l i t i c a l expression, and how to adjudicate disputes. We

oped f r o m the mere fact of shared understandings about the ap-

lack shared understandings of a methodological k i n d about h o w

p r o p r i a t e spheres of each social g o o d , combined w i t h the require-

to interpret and choose among whatever shared understandings

ment that these spheres be respected, "justice is relative

to social

may actually exist in our culture. Except where there is complete

simply

agreement, rival notions each w i l l have a f o o t h o l d . For the theory

Obviously, everything de-

to yield any determinate content, we w o u l d require criteria for

pends on the "shared understandings" about each g o o d and its

choosing a m o n g rival accounts of otir shared m o r a l notions. W i t h -

respective sphere in a given culture. Walzer's book is organized

out such c r i t e r i a , the theory is threatened w i t h silence i n the face

m e a n i n g s " a n d , indeed, " i n matters of m o r a l i t y , argument is the appeal to common

meanings."

18

a r o u n d his list of goods: membership, security and welfare, money and c o m m o d i t i e s , office, hard w o r k , free time, education, k i n s h i p and

love, d i v i n e grace, r e c o g n i t i o n , and political power. Is this

an exhaustive list? W o u l d we all interpret our shared understandings about the spheres of justice this way? Others have proposed quite different lists of the p r i m a r y social goods whose d i s t r i b u t i o n defines the p r o b l e m of justice. For the design of i n s t i t u t i o n s , Rawls's list reduces to liberty, equal o p p o r t u n i t y , and income and wealth.

! y

H a r o l d Lassweil, in a famous analysis, proposed power,

enlightenment, w e a l t h , well-being, s k i l l , affection, rectitude, and deference. '' 2

of serious m o r a l controversy. But such criteria cannot be developed w i t h o u t abandoning the reliance on relativism, on n o t h i n g more than the sheer fact of shared understandings. Once the possibility of a manipulated or indoctrinated consensus is acknowledged, any claims that this k i n d of theory c o u l d satisfy c r i t e r i o n 2 are e x p l o d e d . U n a n i m i t y about shared understandings is unrealistic and is not claimed by the theory. But then the issue arises: w h y should those w h o disagree be b o u n d by the consensus? If there were machinery in the theory to give us c o n f i dence about h o w the consensus was arrived at, then perhaps there could be some basis for resolving this issue. But such machinery

There are t w o m a i n difficulties w i t h this general strategy of

w o u l d , by d e f i n i t i o n , take us outside the confines of category 1

appealing to shared (but not unanimously shared) understand-

(the actual-brute category) because preferences w o u l d no longer

ings. T h e first is: h o w are we to decide between rival lists and

be merely brute. There is no such machinery in Walzer's theory,

rival understandings of their appropriate spheres? For Walzer, this

nor could there be w i t h o u t some radical change in its basic charac-

issue seems relatively s t r a i g h t f o r w a r d . It comes d o w n to a p r o b -

ter. But w i t h o u t such machinery, there are no grounds for b i n d i n g

lem o f social a n t h r o p o l o g y — a n investigation and i n t e r p r e t a t i o n

dissenters to a consensus that is open to delegitimating charges of

of shared understandings about social goods and their b o u n d -

m a n i p u l a t i o n . W h y should such dissenters defer to the consensus

aries in a particular culture. H e treats the whole issue of choosing

unless there are grounds for being confident in the greater r a t i o -

a m o n g rival notions in the same culture parenthetically: " ( W h e n

nality of its collective process? W i t h such grounds, we w o u l d have

people disagree about the meaning of social goods, w h e n under-

a different kmc! of t h e o r y .

standings are controversial, then justice requires that the society

basis for responding to c r i t e r i o n 2.

22

W i t h o u t such grounds, we have no

be f a i t h f u l to the disagreements, p r o v i d i n g institutional channels

W h a t Walzer's relativism does to his attack on t o t a l i t a r i a n i s m

for their expression, adjudicative mechanisms, and alternative dis-

reveals a second major difficulty w i t h the general strategy. W i t h i n

tributions.)"

this relativistic f r a m e w o r k , there can be no criteria, except shared

2 1

Yet there w i l l also be g o o d - f a i t h disagreements about h o w (if

understandings w i t h i n the culture, for the alteration and m a n i p u -

at all) to resolve disagreements i n g o o d f a i t h , h o w to design chan-

lation of that culture. It is for this reason that it is appropriate for

S t r a t e g i e s ef

Sealisîk

Mewmtmsiïm

Hyjîatîtsîksb

us to treat Walzer's theory as a p r i m e example of category .1, the

We require transcultural criteria for the alteration and permis-

reliance on brute-actual preferences ( " b r u t e " because there are no

sible m a n i p u l a t i o n of m o r a l cultures. But such criteria must do

criteria f o r p r o t e c t i n g or refining the f o r m a t i o n of preferences;

more than simply reflect whatever understandings happen to be

" a c t u a l " because it is the existing consensus w h i c h must provide

shared w i t h i n those cultures at a given t i m e . The strategy 1 w i l l

the basis for argument).

propose in part 3 is, in part, a response to this problem because

T h e central p o l i t i c a l i m p l i c a t i o n of the book is supposed to be

it focuses on the conditions under w h i c h values and preferences

the c o n d e m n a t i o n of t o t a l i t a r i a n i s m . However, imagine a t o t a l i -

develop. W i t h o u t criteria directed at this latter p r o b l e m , actual-

tarian regime that happens to succeed in the task that many

choice theories are vulnerable to the basic d i l e m m a : either they

have a t t e m p t e d — b r a i n w a s h i n g its citizens into accepting a set

fail to yield determinate implications or they yield determinate

o f shared understandings about the proper sphere of its p o l i t i -

implications only by the k i n d of manufactured consensus that

cal power. Once such shared understandings are accepted, there

renders t h e m vulnerable to i n d o c t r i n a t i o n problems.

are no grounds w i t h i n the confines of relativism to condemn the regime. The expansion of political power o n t o virtually every other sphere of life (as the boundaries were previously d r a w n ) cannot n o w constitute " t y r a n n y , " by definition, once that expansion is supported by the culture's shared understandings.

2.5 Category

2: Realistic

Hypotheticals

In category 2 of figure 2, there is a m o r a l l y relevant h y p o t h e t i -

Thus,

cal story about the choice of the state or the choice of the first

once an O r w e l l i a n regime operates perfectly, once it succeeds in

principles by w h i c h the state should be evaluated. The story is

t o t a l l y m a n i p u l a t i n g its o w n political culture, its t o t a l i t a r i a n i s m

imaginary, but the people are realistic in a special sense; they are

is transmuted i n t o justice by the relativistic strategy of relying en-

as we w o u l d find them in actual life under conditions where no

25

tirety o n shared understandings. Rather than p r o v i d i n g us w i t h the u l t i m a t e grounds for c o n d e m n i n g t o t a l i t a r i a n i s m , this relativistic t h e o r y of justice has laid the g r o u n d w o r k for its defense—prov i d e d only that thought control and propaganda are sufficientlv effective.

refinement mechanisms have been employed to purge their m o t i vations of bias or i n d o c t r i n a t i o n . I n this respect, the people are no different than they were in category I . Brute preferences are combined w i t h an imaginary story w h i c h , for some reason contended by the theorist, is m o r a l l y relevant to us i n that it bears

M a n y o f the most d i s t u r b i n g cases of injustice and e x p l o i -

on our evaluation of the state. As in category 1 , my basic line of

t a t i o n involve acceptance by the victims of the ideology ratio-

argument for category 2 w i l l be that w i t h o u t i n d o c t r i n a t i o n , brute

n a l i z i n g their v i c t i m h o o d . Provided that those ideologies are ac-

preferences produce sufficient disagreements and indeterminacies

cepted w i t h i n a given culture, a consistent relativism provides no

that they lead to failures to differentiate ( v i o l a t i n g c r i t e r i o n I ) ,

grounds f o r contrary evaluation. The same argument that B a r r i n g -

but that w i t h i n d o c t r i n a t i o n , they violate c r i t e r i o n 4.

ton M o o r e applied to Untouchables, ascetics, and even some con-

I w i l t focus on interpretations of category 2 that strive for una-

centration camp victims can then be applied to entire regimes. '

n i m i t y or unanimous acceptability, at least in some sense, The

If an entire society is victimized by a t o t a l i t a r i a n r e g i m e — b u t

agreement or consent of people m i g h t well vary i n the extent to

its members have been t h o r o u g h l y brainwashed to accept these

w h i c h it is strict or loose, but m constructing hypothetical stories

abuses of power as l e g i t i m a t e — t h e n there are no grounds for

w i t h m o r a l relevance, we need some basis for t y i n g the a u t h o r i t y of

c o n d e m n a t i o n w i t h i n a consistent relativism. For such a theory,

the result to everyone. H y p o t h e t i c a l , nonunanimous-brute theo-

" t y r a n n y " w o u l d have become "justice."

ries w o u l d fail the i n d i v i d u a l l y - b i n d i n g c r i t e r i o n (2), just as d i d

2 1

68

Realistic H y p o t i i e t i s a l s

S t r a t e g i e s of R e c o n s t r u c t i o n

69

the actual-choice versions of nonunanimous-brute theory. W h e n

point i n the story when the person's actual preferences e x p l i c i t l y

unanimous acceptability is not achieved, we have the same p r o b -

and unambiguously support the result.

lem of j u s t i f y i n g the decision rule by w h i c h those w h o disagree

N o z i c k ' s theory strives for unanimity w i t h an extremely weak

can justifiably be overruled or ignored. If there is no further step

f o r m of strict agreement. If this f o r m is unavailable, given a real-

at w h i c h unanimous acceptability is achieved, or if no refinement

istic construction of brute preferences, then so w i l l more demand-

mechanism exists to establish the greater rationality or objectivity

i o forms. T h i s case w i l l help support a more general c l a i m : that

of the consensus (as compared to the m i n o r i t y view), then crite-

strict (voluntary) unanimous agreement is too demanding a re-

n

r i o n 2 must be violated. There is no reason to believe the result to

quirement, whether for actual or for hypothetical constructions

be i n d i v i d u a l l y b i n d i n g .

of brute preferences. We have already seen that loose interpreta-

1 w i l l take Robert N o z i c k ' s argument for the m i n i m a l state as

tions of agreement (such as Locke's doctrine of tacit consent) fail

o f f e r i n g a g o o d specimen of category 2, that is, of a hypothetical-

to yield d i f f e r e n t i a t i n g conclusions, because they can be invoked

choice theory e m p l o y i n g a realistic construction of unrefined or

by an enormous variety of states. If using the king's highways or

brute preferences. As we w i l l see, it aspires to unanimous accept-

finding yourself w i t h i n the territory is taken as tacit consent, then

a b i l i t y t h r o u g h a compensation argument.

m a i n t a i n i n g consent of the people i n such a loose sense does not

As i n the discussion of actual-consent theory, it is w o r t h dis-

do much to distinguish among states. Whether we are dealing w i t h

t i n g u i s h i n g between strict and loose interpretations of consent or

actual or hypothetical constructions of brute preferences, strict

agreement. By the strict interpretation of agreement, we mean

agreement rules out t o o m u c h , while loose agreement legitimates

consent or satisfaction w i t h the result that is explicit and unam-

too much to be of any use in satisfying our first c r i t e r i o n .

biguous to the agent as an account of his actual preferences at

A c c o r d i n g to N o z i c k , we are to take the question of whether

we

there should be a state at all to the "best anarchic s i t u a t i o n one

t h i n k a person w o u l d agree to if she were rational or if she really

reasonably could hope f o r . " The state of nature is offered as a

some identifiable p o i n t i n time. It is not a matter of w h a t

2

t h o u g h t about the issue; nor is it a matter of our interpreting cer-

m o r a l l y relevant hypothetical situation for d e t e r m i n i n g whether

tain a c t s — w h i c h the agent clearly thought she was p e r f o r m i n g

or not there should be a state. The test for whether we should have

for other reasons—as appropriate tokens of consent according to

a state is to imagine our not having one—under conditions that

our conventions. Rather, by strict agreement, we mean that she

are b o t h realistic and o p t i m i s t i c — a n d then we shall see whether a

actually d i d agree (or consent or indicate, i n terms of her actual

state w o u l d have to be introduced or invented. The imagined alter-

preferences, satisfaction w i t h the result) at some point and that

natives must be realistic, for otherwise they w o u l d not be alterna-

she k n e w precisely w h a t she was d o i n g when she d i d so. O f course,

tives bearing on our range of choice; they w o u l d not constitute,

this k i n d of strict agreement may play a role i n a hypothetical

even remotely, alternatives for us. The construction of the state of

scenario, i n w h i c h case, as part of the story, we must imagine that

nature must be o p t i m i s t i c because a pessimistic or Hobbesian ac-

the people involved actually do agree. We can also leave open the

count of the state of nature could justify almost any state (even a

possibility of a p p l y i n g strict agreement retroactively (as N o z i c k

Leviathan). The idea is that if we can justify the state in preference

does i n the doctrine of full compensation),

to the best nonstate alternative, then we w o u l d have convincingly

1

or of r e q u i r i n g that

the u n a n i m i t y be prospective (rather than merely retroactive). But if the agreement is retroactive, then there must actually come a

justified the state and, indeed, a particular k i n d of state. We are given a hypothetical history. The state could have arisen

ReatisHs H y p o i h e t U o l s

71

by the scenario N o z i c k describes; and, the argument goes, this

Let us explore the precise scenario by w h i c h N o z i c k proposes

scenario w o u l d have required no morally impermissible steps:

to justify the m i n i m a l state. It illustrates the difficulty of pre-

" i f one could show that the state w o u l d be superior even to this

serving unanimous acceptability w i t h brute preferences, realisti-

most favored situation of anarchy, the best that realistically can

cally construed. We can s i m p l i f y Nozick's story into the f o l l o w i n g

be hoped for, or w o u l d arise by a process i n v o l v i n g no m o r a l l y

four steps:

impermissible steps, or w o u l d be an improvement if it arose, this w o u l d p r o v i d e a rationale for the state's existence; it w o u l d j u s t i f y the s t a t e . "

1

B u t there are innumerable possible scenarios under w h i c h states far more extensive than N o z i c k ' s " m i n i m a l state" ( l i m i t e d i n its functions to protection against force, theft, fraud, and interference w i t h contracts) m i g h t also have come about w i t h o u t violating rights (in his sense). W i t h i n Nozick's strictly nonpaternaiistic p o s i t i o n , people even have the right, voluntarily, to sell themselves i n t o slavery or to arrange for their o w n murders.' i f they were to 1

d o so, no rights w o u l d be violated. A state whose subjects were mostly slaves (or whose rights were comparable only to those i n

j.

i n d i v i d u a l s ( w i t h rights) live in the state of nature.

2. T h e individuals in step 1 f o r m voluntary associations to protect themselves. 3. T h e associations i n step 2 sort themselves out t e r r i t o r i a l l y (so that each is d o m i n a n t in its o w n t e r r i t o r y ) , f o r m i n g an " u t t r a m i n i m a l state" (where those w h o join and pay get protected and those w h o do not, do not), 4. The u l t r a m i n i m a l state in step 3 compensates the independents i n its t e r r i t o r y so as to incorporate everyone and f o r m a m i n i m a l state. T h e " r i g h t s " assumed in step I are "side-constraints"

upon

m o d e r n t o t a l i t a r i a n societies) could have come about t h r o u g h no

action. It is not permissible to violate even one person's rights,

m o r a l l y impermissible steps. Clearly, if slavery could conceivably

regardless of whether the motive is to protect a greater number

come about t h r o u g h no morally impermissible steps, then so c o u l d

of others. N u m b e r s of rights violations are not to be compared

less drastic states more extensive than the m i n i m a l state, a p r i m e

or balanced; part of the appeal of the theory is the s i m p l i c i t y of

example being the m o d e r n welfare state. W h a t N o z i c k requires

the basic p o s i t i o n that one never violates rights.' Because even

to sort t h r o u g h these counterfactuals is not merely the claim that

one rights v i o l a t i o n w o u l d delegitimate the outcome, and because

the m i n i m a l state (and only the m i n i m a l state) could come about

the independents have the right to remain independent unless

t h r o u g h no morally impermissible steps, but that this h y p o t h e t i -

they v o l u n t a r i l y cede that right to the m i n i m a l state, the theory

cal scenario—and only this hypothetical scenario—is compatible

ends up r e q u i r i n g unanimous acceptability for the transition to

w i t h a plausible, realistic construction of w h a t we could reason-

the m i n i m a l state. As noted in step 4 above, N o z i c k attempts to

ably expect to happen i n the state of nature he describes. I n par-

accomplish this t h r o u g h a " c o m p e n s a t i o n " argument. However,

ticular, i t must be uniquely compatible w i t h a plausible, realistic

in order to remain compatible w i t h the theory's fundamental as-

c o n s t r u c t i o n of the preferences we can attribute to these i m a g i -

sumptions, compensation

nary people in his choice scenario. We are not impressed bv the

makes it a p r o x y for unanimous agreement or consent f r o m those

h y p o t h e t i c a l story that if evervone were to w i s h , voluntarily, to be-

w h o apparently disagree. A n d once compensation is interpreted

has to be interpreted i n a sense that

come slaves, then a t o t a l i t a r i a n society could come about t h r o u g h

in this way, it becomes impossible to get significant substantive

n o " m o r a l l y impermissible steps." The force of this h y p o t h e t i -

conclusions f r o m the theory. So long as a choice scenario is b o t h

cal is completely blunted by the i m p i a u s i b i l i t y of a t t r i b u t i n g such

realistic i n its construction of brute preferences and unanimous in

preferences to the people under any realistic construction.

its requirements, it w i l l simply not produce t h e m .

Realistic H y p o t h e t k s l s

S t r a t e g i e s of Itecortstructmn

For our purposes, \vc d o not need to dispute steps 1-3 j

n

73

satisfying our c r i t e r i o n 2—as a way of m a k i n g the obligations to

N o z i c k ' s tour-step scenario. These transformations depend on

s u

e m p i r i c a l assumptions about the market for protection services

this p r o b l e m may be special to N o z i c k , the general issue applies

(assumptions that we can grant for purposes of argument). But

u

if the scenario reached only so far as step 3, it w o u l d not have

p p o r t the state individually

binding.

Hence, w h i l e the details of

, any theory i n this category that m i g h t aspire to satisfy out-

conditions.

accomplished its purpose, since the so-called u l t r a - m i n i m a l state

Nozick's scenario has not produced the unique legitimacy of

is not a state at a l l . It does not satisfy a state's m i n i m u m defining

the m i n i m a l state. Instead, up to step 3, it has produced only a

feature: it cannot r i g h t f u l l y claim a m o n o p o l y over the legitimate

forced choice between a legitimate nonstate (anarchy) and an ille-

use of force in its territory.' The independents, those w h o have n o t 1

v o l u n t a r i l y joined the p r o t e c t i o n association, have the same right to e m p l o y legitimate force as does the association (the " u l t r a m i n i m a ! state"). The independents cannot be incorporated w i t h out losing a crucial right, the right to interpret and defend their o w n rights as they sec f i t — a right that N o z i c k calls "self-help enforcement." ^

gitimate state ( t h r o u g h forced i n c o r p o r a t i o n of the independents). The move f r o m step 3 to step 4 — a move that N o z i c k requires if there is to be any point to the argument—seems, at first glance, to be doubly objectionable. N o t only does it appear to violate the rights of the independents, by t a k i n g away their right to selfhelp enforcement, but it also appears to violate the rights of the members by f o r c i n g r e d i s t r i b u t i o n — f o r c i n g the members to pay

i f the association takes away this right w i t h o u t consent, then

for p r o t e c t i o n services to be given to the independents, after they

the resulting state is illegitimate, because even one rights v i o l a t i o n

are incorporated. ' N o z i c k believes, roughly, that these t w o (ap-

is enough to delegitimate the outcome (it is this characteristic of

parent) w r o n g s make the next step r i g h t . The idea is that forced

1

N o z i c k ' s theory that brings it w i t h i n the category of theories re-

i n c o r p o r a t i o n can be justified through compensation. O n the one

q u i r i n g unanimous acceptability). But if the independents retain

hand, the members have not had their rights violated t h r o u g h re-

this r i g h t , then no state has been produced. If the scenario reached

d i s t r i b u t i o n to the independents (giving the independents services

only this far, then the whole point of the story w o u l d have been

they have n o t paid f o r ) , because they owe compensation to the

lost. We w o u l d have imagined an alternative to the state—namely,

independents f o r t a k i n g away the right to self-help enforcement.

a n a r c h y — o n l y to see it eventually yield anarchy.

O n the other hand, the independents have not had their rights

O f course, N o z i c k m i g h t have argued that all the independents

violated t h r o u g h forced i n c o r p o r a t i o n , because they are fully com-

simply decide, voluntarily, to buy protection contracts and j o i n

pensated. A n d if one interprets compensation strictly, as N o z i c k

the state. These people are imaginary, so actual history does n o t

does, and if it is actually paid, then it becomes a p r o x y for a k i n d

l i m i t the endings that m i g h t be devised for the story. But this re-

of consent, applied ex post facto." This aspect of compensation

duces the scenario to our i m a g i n i n g that there was anarchy but

becomes e x p l i c i t f r o m his b o r r o w i n g of the "indifference c u r v e "

that somehow, miraculously, absolutely everyone agreed to f o r m

terminology f r o m economics: " F u l l compensation keeps the vic-

a state. It strains credulity to imagine u n a n i m i t y on such a ques-

t i m on as high an indifference curve as he w o u l d occupy if the

t i o n . But a n y t h i n g less than u n a n i m i t y either prevents a state f r o m

other person h a d n ' t crossed." "

8

1

resulting or violates rights so as to delegitimate the resulting state.

X's indifference curves arc a representation of X's actual prefer-

N o t e that, for our purposes, the aspiration for u n a n i m i t y s h o u l d

ences. Once he has been fully compensated in his o w n estimation,

not be viewed as a peculiarity of the theory, but rather as a way o f

there is a sense in w h i c h he has consented to the change: he re-

74

S t r a t é g i e s e í toc&ñsíradiíHi

gards the new situation ( w i t h compensation) as at least as g o o d as the o l d s i t u a t i o n ( w i t h o u t compensation). Just as voluntary consent opens the " b o r d e r " for crossing, f u l l compensation after the

r i e n r e 4. N o z i c k ' s Scenario

O P T I O N S F O R TFIF. RESOLUTION O F N O Z I C K ' S SCENARIO

A

fact legitimizes apparent border crossings t h r o u g h a k i n d of subsequent consent. I n fact, the only objection N o z i c k offers to the

A

B

extreme case of an eccentric w h o goes around breaking arms and

Independents

Independents n o t

w r i t i n g fat checks to fully compensate the victims is that not all the

incorporated

i n c o r p o r a t e d (no state and

A

victims c o u l d possibly be fully compensated—because a general climate of fear w o u l d be created t h r o u g h o u t the c o m m u n i t y .

12

H o w e v e r , once compensation is taken seriously (and N o z i c k

violates c r i t e r i o n ! [ b j )

A t

A2

Loss fully

Loss not fully

must take it perfectly seriously if he is to preserve the simple side-

compensated ( m o r e

compensated

constraint view of rights that boundary crossings are never to

than m i n i m a l state

(illegitimate state

be p e r m i t t e d w i t h o u t consent), then the options resulting f r o m

and violates

and violates c r i t e r i a

the argument reduce to those p i c t u r e d in figure 4. For our pur-

criterion l(a!)

l [ b j and 2)

poses, N o z i c k must take compensation perfectly seriously or else he loses his basis for satisfying c r i t e r i o n 2 and m a k i n g the result individually binding.

the loss of this right to self-help enforcement is fully compensated (option A l ) or i t is not ( o p t i o n A 2 ) . If the loss of the right to self-

T h e possibilities in figure 4 depict the options available after

help enforcement is not fully compensated, then the resulting state

step 3 i n the hypothetical history. Obviously, either the indepen-

is not legitimate. For N o z i c k , even one rights v i o l a t i o n is enough

dents are incorporated i n t o the state ( o p t i o n A) or they are not

to invalidate the process. Flence o p t i o n A 2 , w h i l e p r o v i d i n g a

( o p t i o n B). If they are n o t , then, by the criteria stated earlier, the

state, does n o t provide a morally acceptable one. For our purposes,

p r o t e c t i o n association does not q u a l i f y as a state. It does not have

o p t i o n A 2 can be interpreted as violating b o t h criteria 1(b) and 2.

the requisite m o n o p o l y over the legitimate use of force i n the ter-

It violates c r i t e r i o n 1(b) because we are still w i t h o u t a justification

r i t o r y because the independents retain the same right to use force

for state a u t h o r i t y . I t violates c r i t e r i o n 2 because less than full

as does the d o m i n a n t association. Since the t h o u g h t experiment

compensation cannot be considered a p r o x y for consent. Flence,

for the possibility of justifying the state w o u l d then have failed,

w i t h inadequate compensation, the case for the theory satisfying

anarchism w o u l d have w o n the argument and the theory w o u l d

the i n d i v i d u a l l y b i n d i n g c r i t e r i o n breaks d o w n . Clearly, prospects

then violate otir c r i t e r i o n 1(b).

for a successful c o m p l e t i o n to the argument t u r n on o p t i o n A l .

I f the independents are incorporated (option A in fig. 4 ) , a

W h a t does i t take to fully compensate the independents for

necessary part of that i n c o r p o r a t i o n is the loss of the right to self-

losing the r i g h t to self-help enforcement? Recall that they are i n -

help enforcement. It is precisely the right to use vigilante justice,

dependents precisely because they previously turned d o w n the

to i n t e r p r e t and enforce one's rights entirely as one sees f i t , that

o p t i o n of j o i n i n g the p r o t e c t i o n association. N o w N o z i c k p r o -

distinguishes anarchy f r o m the state. Hence, if the t r a n s i t i o n to

poses to take away the very independence they wished to preserve

a state is to be accomplished, there are t w o possibilities: either

and, in compensation, to give them merely the p r o t e c t i o n services

76

77

i e d i s t i * H y p o t h e t i c Is

S t r a t e g i e s of R e c o n s t r u c t i o n

they hat! previously refused! It strains credulity to imagine that

to be subservient to any government, objecting to their forced i n -

they feel fully compensated, in their o w n estimation by this forced

c o r p o r a t i o n into the s t a t e .

bargain.

simply ends up in the A 2 category and the state that results is

b

i n that case, however, the scenario

T o be fully compensated, they must be on as high an " i n d i f f e r -

illegitimate because rights have been seized w i t h o u t full compen-

ence c u r v e " w i t h o u t the right but w i t h the compensating services

sation. C r i t e r i o n 2 is then violated because there is no basis in

and/or goods as they were previously w i t h their rights but w i t h -

the people's o w n preferences for b i n d i n g them to the state ( f r o m

out the compensation. The case can only be made plausible if

w h i c h they w o u l d prefer to remain independent). C r i t e r i o n 1(b) is

many more services and''or goods are p r o v i d e d than w o u l d be

also violated because we end up w i t h the b l i n d alley of anarchism

compatible w i t h the meager offerings built into the d e f i n i t i o n of

once again.

the m i n i m a l state (the m i n i m a l services p r o v i d e d are w h a t make

O n the other hand, once we assume that it is possible, at least in principle, to compensate for the loss of the independents' rights,

the m i n i m a l state " m i n i m a l " ) . W h e n we begin to imagine w h a t other goods and services might-

the required goods and services clearly surpass those offered by

be p r o v i d e d in order to make the resulting compensation suffi-

the m i n i m a ! s t a t e — p r o v i d e d that full compensation must be p r o -

ciently attractive to place the independents on as high an indiffer-

vided. A n d as we saw earlier, anything less than full compensation

ence curve as they w o u l d have been on otherwise, the resulting

should be construed as a rights violation because it w o u l d not

structure of the state begins to look quite different. We m i g h t

constitute any sort of consent or permission (even if retroactive)

imagine the new state p r o v i d i n g money, f o o d , medical care, educa-

for border crossings. Once border crossings w i t h o u t permission

t i o n , and a host of other human services. In order to render p l a u -

are tolerated, the entire theory begins to disintegrate.

ü

16

sible the c l a i m that the independents are fully compensated, the

The possibilities i n figure 4 reduce t o : (A 1) legitimate but more

apparent r e d i s t r i b u t i o n w o u l d have to be substantial. I say " a p p a r -

extensive states than the m i n i m a l state; (A2) an illegitimate state;

ent r e d i s t r i b u t i o n " because, as N o z i c k rightly notes, if transfers

and (B) no state. Nozick's proposed conclusion, the unique legiti-

are paid as compensation, they should not be considered redistri-

macy of the m i n i m a l state, is not one of the possibilities. I he

b u t i o n (even t h o u g h they w i l l have this appearance because goods

argument clearlv does not produce d i f f e r e n t i a t i n g conclusions.

or services are moved f r o m one g r o u p to another). '

O p t i o n B, anarchism, rules out all the possibilities that involve

1

1

Whatever the details, the resulting state wilt be more than m i n i -

having a state. O p t i o n A l fails to differentiate a m o n g states. From

m a l i f f u l l compensation must be paid. In fact, since many of the

it, we o n l y k n o w that some indeterminate range of more extensive

independents may have failed to join earlier because they c o u l d

states may be legitimate. We cannot k n o w more f r o m the argu-

not a f f o r d t o , the particular character of the m o r e - t h a u - m i n i m a l

ment because the issue turns o n an e m p i r i c a l question about a

state that results m i g h t t u r n out to be precisely the one N o z i c k

hypothetical history: it depends on the preferences of imaginary

is most concerned to argue against, namely, that of the m o d e r n

people. W i t h i n the g r o u n d rules of realism, there is w i d e latitude

welfare state.

in how m u c h compensation m i g h t be required and in h o w much r

It is, o f course, possible that none of these offerings w i l l t u r n

these people m i g h t t u r n out to value their independence. W h a t we

o u t to be sufficient. F r o m the standpoint of the independents, per-

can conclude is that if the argument legitimates any state at a l l , it

haps no compensation w i l l be enough to make up for loss of their

legitimates an indeterminate range of states that engage i n at least

rights. We m i g h t imagine hardy individualists, w h o do not w i s h

some r e d i s t r i b u t i o n . T h a t is v i r t u a l l y the full range of states in the

I m p a r t i a l i&etistan F i m e « J » r e s

S t r a t e g i e s of U e i e r t s t r a t H o t i

m o d e r n w o r l d today. Clearly, o p t i o n A l fails criterion 'I(a), the

79

The i n d o c t r i n a t i o n example also hints at another major problem. H y p o t h e t i c a l histories have a different claim on us than do

nonvacuous requirement. construc-

real histories. Once we get into the business of creating h y p o t h e t i -

t i o n of brute preferences w i t h o u t any explicit efforts to t r a n s f o r m

cal stories, their relevance for us must rest on some other c l a i m

We reached this dead end by assuming a realistic

those preferences t h r o u g h i n d o c t r i n a t i o n . N o z i c k , like Watzer and

than that they actually happened. The indoctrinated-hypothetical

the actual-choice theorists of category I , does not provide protec-

scenario has clearly lost all moral relevance for us. This is a cru-

t i o n f r o m i n d o c t r i n a t i o n for the process of preference f o r m a t i o n .

cial objection to brute-hypothetical scenarios. However, even if

We should see w h a t happens when this assumption is relaxed.

one constructed a scenario that had a greater c l a i m of moral rele-

Suppose, f o r example, that everyone i n the t e r r i t o r y belonged to

vance, it w o u l d still face the p r o b l e m of satisfying c r i t e r i o n 3,

a religious cult w h i c h raised its children to defer entirely to the

the j u r i s d i c t i o n p r o b l e m .

j u d g m e n t of a particular leader o n all questions of public policy.

claim to m o r a ! relevance could not be matched by rival theories

Its members were indoctrinated i n the sense that no rival views

m a k i n g the same fundamental claim to constitute an appropriate

were ever discussed, even i n private, and heavy social sanctions were applied to anyone offering the merest h i n t of d o u b t or of f r e e - t h i n k i n g . In the t e r r i t o r y of this homogeneous and coercive cult fa t e r r i t o r y we m i g h t call C u l t - l a n d ) , once the leader approves j o i n i n g the m i n i m a l state, everyone unanimously and sincerely f o l l o w s . In other w o r d s , C u l t - l a n d achieves the transition to the m i n i m a l state w i t h o u t having to c o n f r o n t the compensation

17

It w o u l d still have to establish that its

basis for m o r a l choice. Because this j u r i s d i c t i o n p r o b l e m is the central issue i n category 3 theories, I w i l l put it off until the next section. It Is w o r t h n o t i n g , however, that the same issue arises for category 2 — o n l y the latter category's responses are c o m p l i cated by the a d d i t i o n a l , delegitimating hurdle of i n d o c t r i n a t i o n problems.

p r o b l e m , simply because there are no independents to be c o m pensated. It achieves the transition to the m i n i m a l state w i t h o u t having to c o n f r o n t the p r o b l e m of disagreement, simply because there is none.

2.6 Category

3: Impartial

Decision

Procedures

Theories i n category 3 of figure 2 combine a hypothetical situat i o n w i t h an e x p l i c i t e f f o r t to refine the preferences or motivations

W h i l e such a hypothetical story w o u l d lead, unanimously, to

that bear o n the choice of p r i n c i p l e s — t o refine them so as to elimi-

the m i n i m a l state, there is no reason for that story to h o l d any

nate the biases that m i g h t otherwise deflect the choice t h r o u g h

m o r a l relevance for us. It is delegitimated as a moral example for

morally irrelevant factors. Such refinement mechanisms clearly

us because i t depends on preferences and choices that are deter-

provide a response to the i n d o c t r i n a t i o n problems that bedevil

m i n e d by i n d o c t r i n a t i o n . For a merely hypothetical story to m a i n -

categories 1 and 2.

tain m o r a l relevance, the choice needs to be v o l u n t a r y ; i t needs to

Category 3 has p r o v i d e d the basis for the resuscitation of sys-

be free of coercive m a n i p u l a t i o n . W i t h o u t i n d o c t r i n a t i o n , we can

tematic liberal theory over the last t w o decades. One basic idea

see f r o m figure 4 that N o z i c k ' s scenario leads to indeterminate

is at the core of this strategy: the definition of an appropriately

results. W i t h i n d o c t r i n a t i o n , on the other hand, it leads to re-

unbiased m o r a l perspective or decision situation for the selection

sults that lack any m o r a l relevance as an example for us. W i t h o u t

of first principles that are to have p r i o r i t y i n a liberal state (at least

i n d o c t r i n a t i o n , the scenario violates either criterion l a or criteria l b or 2; w i t h i n d o c t r i n a t i o n , the scenario obviously violates c r i t e r i o n 4.

under ideal conditions). Rawls's " o r i g i n a l p o s i t i o n , " Ackerman's n o t i o n of " n e u t r a l dialogue," D w o r k i n ' s "equal concern and respect," and Peter Singer's reconstruction of the perfectly sympa-

80

I m p a r i i d Sesision F r e s e d u r e s

Strategies o i Reconstruction

thetic spectator of the classical utilitarians all have this character. Each defines a perspective of impartiality

1

for the equal consider-

81

cisely s y m m e t r i c a l claims: each can derive first principles f r o m his o w n preferred account of the m o r a l point of view. The basis f o r any particular principle supported in this way is open to reason-

a t i o n of relevant claims or interests. M o r a l decision procedures such as the Golden Rule or Kant's

able disagreement precisely because the rival procedures embody

Categorical Imperative have long played a role in ethical debate.

slightly different rival conceptions of m o r a l reasonableness, each

I he obvious difficulty has been that these procedures have been

m a k i n g the same fundamental c l a i m .

specified loosely enough that it is easy for proponents of rival sub-

Fully specifying the procedure does not evade the jurisdiction

stantive conclusions to cite their preferred outcomes as the result

p r o b l e m . Rather, it dramatizes and clarifies i t . Once we specify

of the same procedure.'

a variety of these procedures, the conclusions f r o m any p a r t i c u -

By contrast, the procedures in category 3 attempt to c o n t r o l

lar version of the strategy are too easy to evade—even for liberal

the factors that may be b r o u g h t to bear o n the decision by m a k i n g

theorists c o m m i t t e d to the same general strategy of arguing f r o m

the deliberations h y p o t h e t i c a l . The opportunities for c o n t a m i n a t -

the i m p a r t i a l consideration of interests. We need some basis for

ing the argument w i t h irrelevant factors are controlled by t a k i n g

differentiating conclusions (for criteria that select a subclass of

the deliberations to a hypothetical situation i n w h i c h the factors

most-preferred alternatives) w h i c h i t w o u l d be difficult for any

at play are fully specified and sealed off f r o m real-life biases and

recognizable version of liberal theory to evade. Because even slight

contingencies. A t first glance, this strategy seems to have a great

variations i n the account of i m p a r t i a l i t y or of interests yield r a d i -

deal of m e r i t . If each step i n the procedure is specified sufficiently,

cally different p o l i t i c a l conclusions, any proposed response to c r i -

then it s h o u l d be possible to b r i n g proponents of rival principles

terion I is subject to j u r i s d i c t i o n a l challenge—when supported in

e m p l o y i n g the same procedure to the same ultimate conclusions.

this way.

Yet f r o m this general idea, we can conclude virtually n o t h i n g

A n y viable version of category 3 must specify h o w relevant

particular fully specified strategy should have su-

claims or interests are g o i n g to be considered in an i m p a r t i a l or

premacy. Even slight variations in the account of i m p a r t i a l i t y or

appropriately unbiased way in the hypothetical situation. As 1

of interests i n a fully specified m o r a l decision procedure can p r o -

noted earlier, the initial p r o b l e m w i t h hypothetical situations is

duce radically different first p r i n c i p l e s — a fact dramatized by the

that we can see that proponents of rival principles can devise rival

dispute between Rawls and Harsanyi over interpretations of the

stories designed, in t u r n , to support their respective principles.

o r i g i n a l p o s i t i o n that yield principles as different as m a x i m i n and

The central question about the strategy is: Can some character-

average utility." M a n y procedural devices seem to embody a k i n d

ization of the factors in such a hypothetical situation be

of i m p a r t i a l i t y or equal consideration. " E q u a l c o u n t i n g , " the " v e i l

f r o m j u r i s d i c t i o n a l challenge by other theories advocating other

of ignorance," and " m o r a l musical c h a i r s " are a few of the recent

factors? Unless there is some such characterization, the jurisdic-

contenders.' Similarly, many r i v a l conceptions of interests m i g h t

tion p r o b l e m is inescapable for any version of this k i n d of theory.

about which

5

1

immune

be considered i m p a r t i a l l y by such a procedure. Rawlsian p r i m a r y

Fhe quest is f o r a characterization of factors in the decision

goods, A c k e r m a n i a n " m a n n a , " and u t i l i t y in one sense or another

situation that is so neutral about the controversies i n question

are the proposals most p r o m i n e n t i n recent debates.

that i t is above reasonable challenge. Can a theory achieve strict

5

The difficulty is that proponents of each procedure (specifying a n o t i o n of i m p a r t i a l i t y and a n o t i o n of interests} can make pre-

neutrality and at the same time offer substantive conclusions? To illustrate the general p r o b l e m , let tis turn to the t w o most

I m p a r t i a l P e r n Son ^ r e c e d a r e s

S t r a t e g i e s of R e c o n s t r u c t i o n

82

a m b i t i o u s versions of a category 3 theory i n recent years, Rawls's /\ Theory

of Justice

and Ackerman's Social justice

in the

Lib-

eral State. I n discussing Rawls, Thomas Nagel cogently states the strategy at the core of b o t h theories: " A theory of the g o o d is presupposed, but it is ostensibly conceptions.

neutral between divergent

particular

83

[•'i^ure 5- Options for Hypothetical-Choice Theories HYPOTHETICAL-CHOICHTHiiOKIt-S Brute (indoctrination

Refined

problems)

. . . It is a fundamental feature of Rawls's conception

of the fairness of the o r i g i n a l position that it should not p e r m i t the

Strictly neutral

Not strictly

choice of principles of justice to depend o n a particular conception

(vacuous)

neutral

of the g o o d over w h i c h the parties may d i f f e r . " ' 1

Is it possible to develop a viable but neutral theory of relevant

Want-regarding

claims o r interests that m i g h t i m m u n i z e substantive conclusions f r o m j u r i s d i c t i o n a l challenge? A neutral theory w o u l d d r a m a t i cally reduce the r o o m f o r reasonable disagreement; it holds o u t

Selective

Nonselective (interpersonal comparisons, indoctrinated preferences)

the promise of a f i r m basis for whatever principles result f r o m the i m p a r t i a l consideration of everyone's relevant claims or interests. If a theory is beyond reasonable challenge in its c l a i m to neutrality, it trumps the conclusions of r i v a l , less neutral theories. H o w e v e r , t o the extent that this promise is directed t o w a r d

Paretian (triviality)

Ideal-regarding (paternalism)

Nou-Paretian (interpersonal comparisons)

satisfying our criteria, i t is, I w i l l argue, chimerical. To situate the argument, b o t h Rawls and A c k e r m a n offer us imaginary-choice

O f course, any particular version of such an imaginary-choice

theories: the m o r a l p o i n t of view is formalized by a h y p o t h e t i c a l

theory must offer its o w n account of w h a t factors are m o r a l l y

but m o r a l l y relevant decision situation w h i c h is constructed

relevant or irrelevant and of what gets i m p a r t i a l l y considered. It

so

as to perfectly insulate its results f r o m contamination by irrele-

is in c o n f r o n t i n g the latter task that the neutrality issue arises.

vant factors.' I n constructing these imaginary situations, we are

As figure 5 shows, some versions aspire to strict neutrality i n

n o t l i m i t e d by practical constraints. It is not an argument against

their consideration of relevant claims or interests, w h i l e others do

one of these decision situations that its defining conditions w o u l d

not. M y basic line of argument w i l l be that strict neutrality, i f

be impossible to realize. The m o r a l relevance of the imaginary

taken seriously, blocks the road to any differentiating conclusions

t h o u g h t experiment ties i n the c l a i m that if we could realize those

(prescriptions that m i g h t satisfy criterion .1). But once neutrality

c o n d i t i o n s , then our conclusions w o u l d be completely u n c o n t a m i -

is loosened, then the basis for differentiating conclusions has been

nated by m o r a l l y irrelevant factors. Provided that we can coher-

lost and the controversies a p p l y i n g to either w a n t - r e g a r d i n g or

ently and plausibly w o r k t h r o u g h w h a t w o u l d be arrived at under

ideal-regarding theories of interests (or other relevant claims) p r o -

the appropriate imaginary conditions, we have a strategy f o r sup-

vide ample r o o m for reasonable disagreement and ample grounds

p o r t i n g the resulting p r i n c i p l e : i t is the one that w o u l d be chosen

for j u r i s d i c t i o n a l challenges among competing thought experi-

under the admittedly imaginary but allegedly perfect conditions

ments ( v i o l a t i n g c r i t e r i o n 3).

for m a k i n g such a choice.

Let us begin w i t h the aspiration for strict neutrality. I n Rawls's

Impartial t&amiesi Ptm®$wm

S t r a t e g i e s of i e i e s i s t r a s t i s f j

85

case, this aspiration is expressed by his use of the " t h i n theory

want regardless of whatever else he turns out to w a n t . In this way,

of the g o o d . " We are told that " t h e theory of the g o o d used i n

he may supposedly choose moral principles out of self-interest

arguing for the principles of justice is restricted to the bare essen-

while k n o w i n g n o t h i n g about himself that does not apply equally

t i a l s . " We must use the t h i n theory because we cannot do w i t h o u t

to everyone else.

a theory of the g o o d altogether: " T o establish these principles i t

N o t e that this account of a person's true interests based o n

is necessary to rely on some n o t i o n of goodness, for we need as-

his " r a t i o n a l p l a n " does not depend in the slightest o n any ten-

sumptions about the parties' motives in the o r i g i n a l p o s i t i o n . " *

dency of persons in real life (or in the ideal just society) to " p l a n "

But these motives cannot be influenced by the particular concep-

their lives w i t h any coherence or even i n any consciously

tions of the g o o d we happen to have acquired i n actual life. As

lated way. Rather, "a rational plan is one that w o u l d be selected

formu-

Rawls notes in a later article, " T h a t we have one conception of the

if certain conditions were fulfilled. The c r i t e r i o n of the good is

g o o d rather than another is not relevant f r o m a m o r a l standpoint.

hypothetical in a way similar to the c r i t e r i o n of j u s t i c e . "

In a c q u i r i n g it we are influenced by the same sort of contingencies

10

These r a t i o n a l plans are distinguished f r o m other plans of

Rawls

life, first, i n that they c o n f o r m to certain "principles of r a t i o n a l

m i g h t have added that if we were each to i m p o r t our o w n p a r t i c u -

choice," and second, in that they w o u l d be chosen by the per-

lar conceptions of the g o o d i n t o the original p o s i t i o n , the basis

son w i t h " f u l l deliberative r a t i o n a l i t y . " The principles of rational

f o r any unanimous agreement w o u l d have been lost. N o single re-

choice are neutral w i t h respect to particular substantive

sult w o u l d rest on a firm basis because conscientious

that lead us to rule out a knowledge of our sex and class."

y

aims.

proponents

They "define r a t i o n a l i t y as preferring, other things equal, the

o f rival principles could each take their case to a version of the

greater means for realizing our aims, and the development of

o r i g i n a l p o s i t i o n e m p l o y i n g their o w n notions of the g o o d . Juris-

wider and more varied interests assuming that these aspirations

d i c t i o n problems w o u l d then bedevil these rival interpretations

can be carried t h r o u g h . " The concept of deliberative r a t i o n a l i t y

of the o r i g i n a l p o s i t i o n — e a c h challenged by other versions that

is s i m i l a r l y n o n c o m m i t t a l w i t h respect to particular substantive

e m p l o y their favorite conceptions of interests to yield different

aims. It specifies as " r a t i o n a l " whatever plan we w o u l d choose

conclusions. R a w l s , of course, does not take this route. H i s proposal is that,

" w i t h full awareness of the relevant facts and after a careful consideration of the consequences."

11

Plans are thus rational to the

regardless of our actual notions of our interests, we should all

degree that they involve an effective consideration of means for

rely o n the same " t h i n theory." But h o w can we judge the self-

realizing our aims and a choice of aims made w i t h f u l l knowledge

interest of individuals w i t h o u t k n o w i n g a n y t h i n g i n particular

of conditions and consequences.

about them—-anything that does not apply equally to everyone

It should be evident that a w i d e variety of plans r e q u i r i n g a

else? The t h i n theory leads f r o m the " d o c t r i n e of rational plans of

w i d e variety of conditions for their fulfillment m i g h t well satisfy

l i f e " to the " d o c t r i n e of p r i m a r y g o o d s " ; the latter is to guide the

these c o n d i t i o n s . A n y plan that anyone w o u l d choose for himself

choice of principles of justice.

w i t h full awareness in the " d e l i b e r a t i v e " sense and according to

Rawls argues that an agent i n the original position may f u r t h e r

these principles o f rational choice thus qualifies as rational. I n

his o w n particular rational plan of life (whatever that may t u r n

principle, there are few limits on the variety that rational plans

o u t to be once the veil of ignorance is removed) by m a x i m i z i n g

may assume. As Rawls admits, " F r o m the d e f i n i t i o n alone very

his share of " p r i m a r y g o o d s " — g o o d s that it is rational for h i m to

little can be said about the content of a rational p l a n , or the par-

I m p a r t i a l Decision P r o c e d u r e s

S t r a t e g i e s of R e c o n s t r u c t i o n

87

ticular activities that comprise i t . " Consider Rawls's example of

The c o u n t i n g principles in c o n d i t i o n 1 are purely i n s t r u m e n t a l ;

the grass-counter: " I m a g i n e someone whose only pleasure is to

c o n d i t i o n 2 is purely f o r m a l . It specifies only that the plan is the

count blades of grass in various geometrically shaped areas such

one that the person himself w o u l d choose under conditions of ftiil

as park squares and w e l l - t r i m m e d lawns. He is otherwise intel-

awareness. H o w is this thin theory supposed to support the cal-

ligent and actually possesses unusual skills, since he manages to

culations of self-interest (behind the veil of ignorance) that yield

survive by solving difficult mathematical problems for a fee. T h e

the general and special conceptions of justice?

d e f i n i t i o n of the g o o d forces us to admit that the good for this m a n

ing the issue i n great detail, the basic point is that the t h i n theory

is indeed c o u n t i n g blades of grass, or more accurately, his g o o d is

is supposed to provide " t h e qualitative structure of the possible

determined by a plan that gives an especially p r o m i n e n t place to

gains and losses i n relation to one's conception of the g o o d . "

!fi

W i t h o u t pursu-

1

Despite the dizzying variety of life plans that m i g h t

This qualitative structure is supposed to yield the "'three chief

q u a l i f y as rational once the veil of ignorance is removed, Rawls

features" that make m a x i m i n ( m a x i m i z i n g the m i n i m u m share)

believes that there is a sufficient basis for the choice of substantive

the rational choice for the general conception of justice (and for

principles in the original p o s i t i o n . Guided by self-interest

even

the d i s t r i b u t i o n of income and wealth in the special conception).

this a c t i v i t y . "

12

t h o u g h we k n o w n o t h i n g in particular about ourselves, we w o u l d

The first feature is that "the situation is one i n w h i c h a knowledge

choose, Rawls believes, to maximize the m i n i m u m share of p r i -

of likelihoods is impossible, or at best extremely insecure." The

mary goods (the " m a x i m i n " n o t i o n of the "general

argument turns o n the second and t h i r d features;

of justice}.

11

conception"

Furthermore, once we take account of the compara-

tive w o r t h of the various p r i m a r y goods, we w o u l d also specify the p r i o r i t y rankings of the "special c o n c e p t i o n " (liberty, then fair equality of o p p o r t u n i t y , and then the m a x i m i n d i s t r i b u t i o n o f income and w e a l t h ) .

|:i

The key p o i n t f o r our purposes is that Rawls cannot get such ambitious substantive conclusions f r o m the thin theory of the g o o d and at the same time maintain its " t h i n n e s s " — i t s n e u t r a l i t y

The person choosing has a conception of the good such that he cares very little, if anything, for what he might gain above the minimum stipend that he can, in fact, be sure of by following the maximin rule [second feature). It is not worthwhile for him to take a chance for the sake of a further advantage, especially when it may turn out that he loses much that is important to him. This last provision brings in the third feature, namely, that the rejected alternatives have outcomes that one can hardly accept. The situation involves grave risks.' 8

between particular, controversial " f u l l e r " theories. The thinness of the t h i n theory derives f r o m the purely procedural and i n s t r u -

These assumptions

are not sufficient to support so strong a

mental account of its component parts. The necessary and suffi-

conclusion as m a x i m i n . To illustrate the slippage, consider the

cient conditions for a rational life plan are defined in procedural

d i s t r i b u t i o n p r o b l e m for a society of t w o persons. I n figures 6—

and instrumental terms: " A person's plan of life is rational if,

8, the shares of p r i m a r y goods to persons A and B are pictured

and only if, ( i ) it is one of the plans that is consistent w i t h the

o n the vertical and h o r i z o n t a l axes, respectively. '' Let us suppose

principles of rational choice w h e n these are applied to all the rele-

that there is some amount of p r i m a r y goods that satisfies the sec-

vant features of his s i t u a t i o n , and (2) it is that plan among those

o n d and t h i r d features assumed by Rawls i n the above passage.

meeting this c o n d i t i o n w h i c h w o u l d be chosen by h i m w i t h f u l l

Let us call that amount " Z " p r i m a r y goods. A n y t h i n g less than

deliberative rationality, that is, w i t h full awareness of the relevant

7, is a disaster; and compared to the prospect of getting less than

facts and after a careful consideration of the consequences."

Z , we care " l i t t l e if a n y t h i n g " to gamble for more, Rawls's p r o -

t 5

1

impartial

Figure fi. Maximin with a Guaranteed Minimum

fedsioii

Procedures

89

Figure 7. Utilitarianism with a Guaranteed Minimum

Z

Z

A

A

Z

B posed " m a x i m i n " s o l u t i o n is represented by the series o f L-shaped indifference curves in figure 6. However, any d i s t r i b u t i o n in the

A guaranteed m i n i m u m is a far weaker and less controver-

quadrants northeast of Z in any of the three charts satisfies the

sial conclusion than a m i n i m u m that must be m a x i m i z e d . Fhe

three features fully as m u c h as does m a x i m i n . After we p r o v i d e

latter p r i n c i p l e can require great sacrifice f r o m all other strata

everyone w i t h Z p r i m a r y goods, we could m a x i m i z e the t o t a l ,

for the sake of t i n y increases at the bottom—increases that m i g h t

as i n figure 7, or we could maximize equality, as indicated by

be above an already acceptable threshold. Suppose four Rawlsian

the 45-degree line in figure 8, or we could fill out the quadrant-

p r i m a r y goods is our definition of such a threshold. Neverthe-

northeast of Z in any other conceivable way. A l l of these options

less, m a x i m i n w o u l d tell us that d i s t r i b u t i o n Y is preferable to

satisfy the three features as much as does m a x i m i n . To require

distribution X:

that the q u a d r a n t northeast of Z be filled out as in figure 6 is t o o s t r o n g a conclusion to d r a w f r o m the assumptions available i n the o r i g i n a l p o s i t i o n . F u r t h e r m o r e , it is a conclusion that w o u l d force us to c o n t i n u a l l y prefer increases in the m i n i m u m over other c o m p e t i n g claims—even w h e n those other competing claims were very significant and the increases in the m i n i m u m were very small indeed.

20

X

Y

4

4.01

15

4.01

20

4.01

50

4.01

So long as we give at least Z p r i m a r y goods to everyone, w e

G i v e n the meager i n f o r m a t i o n about his self-interest available

have satisfied the security level assumed i n the three features. I t is

to an agent i n the o r i g i n a l p o s i t i o n , w o u l d it be rational to decide

an open question w h a t we should do after that. The three features

o n m a x i m i n w h e n another choice strategy that is conservative in

i m p l y only a guaranteed m i n i m u m , not a m i n i m u m that continues

its a t t i t u d e t o w a r d r i s k — t h e guaranteed m i n i m u m — e n s u r e s all

to rise so far as possible.

that was c l a i m e d for m a x i m i n (it satisfies the second and t h i r d

S t r a t e g i e s ©}

Usmmtrutfim

H g u r e 8. E q u a l i t y w i t h a Guaranteed

i m p a r t i e ] Decision P r o c e d u r e s

then rests o n a particular controversial theory of the g o o d and

Minimum

the d o o r has been opened to other controversial theories that can z

provide an equivalent basis for rival principles. It is then open to

A I

j u r i s d i c t i o n a l challenge by the full range of rival theories because it no longer has a plausible claim of strict neutrality w i t h w h i c h to defend itself against charges of bias. The d i l e m m a , i n other w o r d s , amounts to a h a r d choice between the v i o l a t i o n of criterion 1(a) and the v i o l a t i o n of criterion 3. The m i n i m a l interpretation of the threshold maintains a c l a i m to n e u t r a l i t y (but at the cost of radical incompleteness) because it m i g h t seem reasonable, if we have no idea of our particular rational life plan to calculate that the brute "necessaries (to use ,,

A d a m Smith's phrase) required for survival and bare membership in the society c o n f o r m to the security level stated in the three features/ C o m p a r e d to the risk of falling below such a subsistence 2

m i n i m u m , we m i g h t indeed "care very little, if a n y t h i n g " for increfeatures), w i t h o u t c o m m i t t i n g itself to a host of a d d i t i o n a l and

ments above i t . W h y gamble on w i n n i n g the jackpot introduced

d i s t u r b i n g implications? After a l l , once the veil of ignorance is re-

by great inequality if the possibility of such payoffs introduced

m o v e d , we m i g h t be i n one of the higher strata decimated by the

the risk o f starvation or other comparable disasters? In this way,

choice of Y rather than X . A n d if we are at the the b o t t o m , the

Rawls's second and t h i r d features can be given a plausible inter-

tiny increment we get tinder Y counts f o r nothing, by hypothesis,

p r e t a t i o n that seems to be neutral between particular life plans

since we are already above the threshold.

and substantive aims. N o t k n o w i n g w h a t m y life plan w i l l t u r n out

Suppose we arc right i n c l a i m i n g that it is possible to get a partial

substantive conclusion out of Rawls's three features i n

the o r i g i n a l p o s i t i o n . Does this partial conclusion offer any hope of satisfying our criteria?

to be, I must, nevertheless, secure certain subsistence conditions necessary for pursuing any rational life plan at all. But such a m i n i m a l safety net w o u l d be endorsed by v i r t u a l l y

I believe Rawls faces the f o l l o w i n g

every developed country, capitalist or socialist. G i v i n g everyone

d i l e m m a : O n the one hand, i f the threshold defined by the three

at least subsistence leaves almost everything after that an open

features is interpreted m i n i m a l l y , a plausible case can be made f o r

question. For example, should we strive to increase equality, total

neutrality, but at the cost of such radical incompleteness that the

o u t p u t , or the m i n i m u m level after everyone has been given at least

resulting principle is nearly t r i v i a l in its implications. It is so m i n i -

subsistence? W h a t should our priorities be within

m a l i n its demands that v i r t u a l l y any modern state satisfies it (or

defined by Z i n figures 6-8?

c o u l d easily satisfy i t ) . Hence the theory, on this i n t e r p r e t a t i o n ,

get us into the quadrant, but they are insufficient to direct us after

w o u l d violate our nonvacuousness requirement (criterion l [ a j ) .

that. T h e d i f f i c u l t y is that this is where serious debate begins, not

O n the other hand, if the threshold is interpreted ambitiously, then its pretensions to neutrality can no longer be s u p p o r t e d .

21

It

the quadrant

Rawls's assumptions are sufficient to

where it ends. T h e basic p o i n t is that when the security level is set so l o w

Strategies of

^essmstrwitisrt

teiHirfkil

^emieii Pmedares

93

that i t plausibly corresponds to the three features, it leaves almost

ficulty arises w i t h the special conception: a neutral interpretation,

everything unsettled. M o s t i m p o r t a n t for our purposes, the re-

a really " t h i n " theory, does not support these significant substan-

q u i r e m e n t that such a m i n i m a l safety net be satisfied w o u l d be v i r -

tive results; to get the latter, a particular, controversial theory of

tually useless in satisfying c r i t e r i o n 1(a) (nonvacuousness). H o w -

the g o o d must be assumed. "

ever, it is only the m i n i m a l interpretation of Z , the security level, that can m a i n t a i n a plausible c l a i m to neutrality.

2

1

Recall that the doctrine of rational life plans could m a i n t a i n its c l a i m to n e u t r a l i t y only by being purely procedural and i n s t r u -

O n the other hand, if we were to set Z ambitiously—say, t w o

mental. M y r a t i o n a l plan of life is supposed to be the one I w o u l d

cars and a home of one's o w n — w e w o u l d be positing a c o n t r o -

choose for myself w i t h full knowledge of conditions and conse-

versial theory of the g o o d for everyone. The t h i r d feature requires

quences and in accordance w i t h the rational means/ends relations

that we regard a n y t h i n g less than the threshold as an unacceptable

determined by the various counting p r i n c i p l e s .

disaster, w h i l e the second feature requires that we not be inter-

this m u c h i n the o r i g i n a l p o s i t i o n , there is no basis for the strong

ested i n g a m b l i n g for a n y t h i n g m o r e — a t least relative

25

K n o w i n g only

to the risk

p r i o r i t y relations expressed by lexical order. I m i g h t be an aspiring

o f f a l l i n g below i t . " H a v i n g (at the time of this w r i t i n g ) one car but

capitalist whose life plan is not furthered i n the least by the c i v i l

not t w o , I can, personally, quite easily imagine a plan of life where

liberties to w h i c h Rawls gives first p r i o r i t y . As such a capitalist, i

I w o u l d prefer (a) the chance

of becoming a m i l l i o n a i r e i n t r o -

m i g h t prefer to give first p r i o r i t y to the income and wealth Rawls

duced by tolerating inequalities to (b) strict equality but w i t h the

places last. O r m y rational plan of life m i g h t be more directly

guarantee of a second car. The p o i n t is that an ambitious interpre-

furthered by placing fair equality of o p p o r t u n i t y first. Perhaps

t a t i o n of the threshold w i l t depend on a controversial theory of the

I am a member of a racial or sexual m i n o r i t y whose members

g o o d — o n e that conforms to some rational life plans but clearly

place highest p r i o r i t y on equal o p p o r t u n i t y - - e v e n above liberty

not to others, particularly in its attitude t o w a r d risk. For such a

of conscience and political expression (although we m i g h t value

theory of the g o o d , a n y t h i n g less than the second car (or whatever

these h i g h l y as well). M y rational plan of life, in Rawls's precise

else is demanded of the ambitious threshold) must be absolutely

sense, m i g h t be far more effectively furthered by i n v e r t i n g one or

unacceptable. A n d compared to the risk of not getting the second

another of these p r i o r i t y rankings. F r o m the o r i g i n a l p o s i t i o n , 1

car, the prospect of g a m b l i n g to get H o w a r d Flughes's f o r t u n e

simply cannot k n o w whether or not this is the case.

must mean n o t h i n g . Because the ambitious threshold clearly v i o -

T h e p o i n t is that the " t h i n theory of the g o o d " — i f it remains

lates neutrality, it opens the door to other controversial theories

t r u l y t h i n — p r o v i d e s no basis for d e t e r m i n i n g these rankings, one

o f the g o o d as the basis for competing principles.

way or the other. So long as we consider life plans in a purely

A s i m i l a r difficulty arises w i t h the p r i o r i t y rankings embodied

procedural and instrumental way, a plausible c l a i m to neutrality

in the special conception. Once we take account of the qualitative

can be m a i n t a i n e d , but only at the cost of leaving the comparative

differences among the various p r i m a r y goods, we are supposed to

value of the various " p r i m a r y goods" indeterminate.

value liberty, fair equality of o p p o r t u n i t y , and income and w e a l t h

O n the other hand, if we i m p o r t into the o r i g i n a l position a

in lexical order (meaning that no amount, however great, of a

more f u l l - b o d i e d conception of the g o o d — o n e that includes par-

l o w e r - r a n k e d value is w o r t h any sacrifice, however s m a l l , in a

ticular substantive a i m s — t h e n the claim to neutrality among sub-

higher-ranked value). W i t h o u t g o i n g into all the details of this

stantive aims is lost. Rawls has suggested this last possible line of

w e l l - k n o w n controversy, it is w o r t h n o t i n g that the same basic d i f -

revision in more recent articles, where he proposes that a pacticu-

94

lar " m o d e l conception o í a m o r a l p e r s o n " should be assumed i n order to o b t a i n his proposed conclusions/

95

i m p a r t i a l decision Procedures

S t r a t e g i e s of R e c o n s t r u c t i o n

6

sibility are needed to give scope to various self-governing and social capacities of the self.

A c c o r d i n g to this model conception, " w e take moral persons to

(iv) Income and w e a l t h , understood broadly as they must be,

be characterized by t w o m o r a l powers and by t w o corresponding

are all-purpose means (having an exchange value) for

highest-order interests i n realizing and exercising these p o w e r s . "

achieving directly or indirectly almost any of our ends,

T h e t w o m o r a l powers are "the capacity for an effective sense o f

whatever they happen to be.

justice" and the "capacity to f o r m , to revise, and rationally to pur-

(v) T h e social bases of self-respect are those aspects of basic

sue a conception of the g o o d . " The key p o i n t is that in the o r i g i n a l

institutions w h i c h are n o r m a l l y essential if individuals are

p o s i t i o n the agents are to assume that they have "highest-order

to have a lively sense of their o w n w o r t h as m o r a l persons

interests" i n securing the conditions necessary for the exercise o f

and to be able to realize their higher-order interests and

these t w o m o r a l powers: " C o r r e s p o n d i n g to the m o r a l powers,

advance their ends w i t h zest and self-confidence. * 2

m o r a l persons are said to be moved by t w o highest order interests to realize and exercise these powers. By calling these interests

Because o f o u r " h i g h e s t - o r d e r " interests in securing the con-

'highest o r d e r interests, I mean that, as the model-conception o f

d i t i o n s for the exercise of the t w o m o r a l powers, we are, sup-

a m o r a l person is specified, these interests are supremely regula-

posedly, to adopt the principles of the special conception. Once

tive as well as effective. This implies that, whenever circumstances

again, the same issue arises. W h y is it rational to accept these

1

are relevant to their f u l f i l l m e n t , these interests govern deliberation and c o n d u c t . " ' 2

very s t r o n g p r i o r i t y rankings? W h y are we to accept the p r i m a r y goods in the order enumerated, where the slightest sacrifice i n

W i t h these m o r a l powers and their corresponding interests i n

l i b e r t y is n o t w o r t h the greatest possible increase i n equal oppor-

m i n d , Rawls believes that we can get the p r i o r i t y relations i n

t u n i t y , and where the slightest sacrifice in equal o p p o r t u n i t y is

the special conception. H e summarizes this construction of the

not w o r t h the greatest possible increase in income and wealth?

argument as f o l l o w s :

Rawls makes clear that he still adheres to the p r i o r i t y rankings. "' 2

In any case, w i t h o u t the p r i o r i t y rankings, the theory w o u l d fall (:) The basic liberties (freedom of thought and liberty of con-

into intuitionism.

science, etc.) are the background institutions necessary f o r

T o preserve the p r i o r i t y rankings, Rawls w o u l d have us assume

the development and exercise of the capacity to decide

that o u r interest i n l i b e r t y comes first, because the highest-order

u p o n and revise, and rationally to pursue, a conception of

interests i n o u r m o r a l powers are served first by l i b e r t y ; equal

the g o o d . Similarly, these liberties a l l o w for the develop-

o p p o r t u n i t y is second because our next-highest-order interests i n

ment and exercise of the sense of right and justice under

our m o r a l powers are served by equal o p p o r t u n i t y , and so o n .

social conditions that arc free, (ii) Freedom

of movement and free choice of occupation

Clearly, the c l a i m to neutrality has been greatly weakened by the i n t r o d u c t i o n of these assumptions. We are being asked to base-

against a background of diverse opportunities are re-

principles of justice on a particular controversial theory of the

q u i r e d for the pursuit of final ends, as well as to give effect

g o o d or, if y o u w i l l , a particular model conception of a m o r a l per-

to a decision to revise and change them, if one so desires,

son, w h e n other variations w o u l d clearly lead to different p r i o r i t y

(iii) Powers and prerogatives of offices and positions of respon-

rankings and different principles. Once these moves are made,

%

S t r a t e g i e s ©f S e s f t i i s t r a i t i o s

i m p a r t i a l decision ^rased&res

97

the strictly neutral strategy for avoiding jurisdiction problems has

you are, therefore, I should get at least as m u c h . " The difficulty

been abandoned. W h e n we employ such a controversial theory of

is that neutrality, on the strict interpretation, does not p e r m i t any

the g o o d , we can get substantive results, but they can be matched

definite answer to the further question, A t least as m u c h what? A

p o i n t by p o i n t by rival t h o u g h t experiments employing rival theo-

particular, inevitably controversial theory of the g o o d is required

ries o f the g o o d whose neutrality is similarly at issue.

to answer that question; but that is precisely w h a t is barred by

f o c l a r i f y the general issue, it is w o r t h considering a second example of a theory aspiring to strict n e u t r a l i t y . N e u t r a l i t y plays 10

an even more e x p l i c i t role in Ackerman's Social Justice

in the

neutrality. The strict interpretation is clearest i n Ackerman's attempt to

Lib-

rule out u t i l i t a r i a n i s m . We are presented w i t h a dialogue between

eral State— probably the one contemporary effort to reconstruct

" M a n i c " ( w h o likes mountaineering) and "Depressive" ( w h o likes

liberal theory that rivals Rawis's in its a m b i t i o n and systematic

p h i l o s o p h i z i n g ) . The former claims he should get more " m a n n a "

character. N e u t r a l i t y is one of three assumptions that are meant,

because he w i l l derive more u t i l i t y f r o m i t :

together, to constrain l e g i t i m a t i n g conversations about d i s t r i b u tive justice. However, the other t w o assumptions, r a t i o n a l i t y and consistency, w i l l p e r m i t an enormous range of possible d i s t r i b u tions to survive e l i m i n a t i o n .

11

But once neutrality is i n t r o d u c e d ,

A c k e r m a n argues, only his o w n proposal survives. He defines it as f o l l o w s : " N e u t r a l t t y : N o reason is a g o o d reason if it requires the power/holder to assert: (a) that his conception of the g o o d is better than that asserted by any of his fellow citizens, or (b) that, regardless of his conception of the g o o d , he is intrinsically superior to one or more of his fellow c i t i z e n s . "

DEPRESSIVE:

It translates the value of philosophizing and mountaineering into a common yardstick: subjective satisfaction. D E P R E S S I V E : But surely there are other possible yardsticks. Why can't I , for example, construct a calculus that ranks all conceptions of the good in terms of the amount of philosophic wisdom they produce and instruct the computer to tell us how much of that good each of us will produce with the manna, (He does so.)

MANK;:

12

COMPUTER:

For our purposes, the difficulty w i t h this innovative and appeal-

How, then, is the utility number relevant to our discus-

sion?

Depressive scores one hundred units on the wisdom index;

Manic scores 10 units.

ing proposal is that i f it is interpreted strictly, the resulting con-

DEPRESSIVE:

clusions are emptied of substantive content. O n the other hand, if

MANIC:

Why, then, is your yardstick better than mine?

Do i have to answer that?

15

it were to be interpreted more loosely, then no particular p r i n c i p l e

M a n i c cannot answer the question w i t h o u t v i o l a t i n g neutrality

resulting f r o m it w o u l d rest on firm g r o u n d . Rival positions c o u l d

— w h e n interpreted strictly. As the Commander in Ackerman's

then invoke rival l e g i t i m a t i n g dialogues and the same p l u r a l i s m

dialogue concludes:

w o u l d result as that w h i c h f o l l o w e d when Rawls suggested weak-

We search i n v a i n for a neutral yardstick for measuring the 'real'

ening n e u t r a l i t y .

" W e are reaching a dead-end, my friends.

In our terms, the options boil d o w n to a hard

value of different conceptions of the g o o d . To justify one yardstick

choice between violations of c r i t e r i o n I (the emptiness of s t r i c t

over all the other possible ways of r a n k i n g values w i l l require

neutrality prevents any selection of a few most preferred states)

utterances that are inconsistent w i t h at least some of the ideals

and violations of c r i t e r i o n 3, the j u r i s d i c t i o n p r o b l e m .

affirmed by some of your fellow citizens." Hence the objection to

11

Let us focus on the strict interpretation of neutrality. The argu-

u t i l i t a r i a n i s m : " T h e problem w i t h u t i l i t a r i a n i s m is its teleological

ment that passes neutrality is supposed to sanction equality. *' The

character, its e f f o r t to evaluate d i s t r i b u t i o n rules by h o w much

one successful move in the dialogues is " F i n at least as g o o d as

' g o o d ' they produce. Any such effort requires a specification of

3

98

Strategies oï

the g o o d that w i l l he contested by some citizens w h o insist o n

that I a m " i n t r i n s i c a l l y superior" to my competitors. * O n l y if

measuring their g o o d by a different yardstick, one that gives t h e m

equal amounts of manna were assumed at the outset to be the ap-

more manna than their competitors."-

p r o p r i a t e c r i t e r i o n for j u d g i n g that persons are equally well-off,

16

1

W h i l e successful in r u l i n g out u t i l i t a r i a n i s m , this conception of

w o u l d it f o l l o w that d i f f e r i n g distributions y i e l d i n g equal utilities

neutrality is so strict that it can be employed, w i t h equally dev-

were a slight to some conceptions of the g o o d . Yet this w o u l d be

astating results, against the yardsticks Ackerman eventually uses

to assume, a r b i t r a r i l y , a particular and contested solution to the

himself to settle the d i s t r i b u t i o n p r o b l e m . He later permits De-

fundamental issue: w h a t allotments are to be regarded as superior

pressive to argue, supposedly consistent w i t h neutrality, ' i f I ' m

or inferior? T h e case against equal satisfaction w o u l d appear to rest on the

at least as g o o d as M a n i c , I should get at least as much of this T h i s simple argument yields the

passages q u o t e d above objecting to u t i l i t y as a yardstick. But it is

conclusion of equal i n i t i a l shares of m a n n a — a n argument that is

successful, I believe, only if interpreted so strictly that any sub-

later broadened to include b i r t h r i g h t s , education, rights to free

stantive content to a yardstick can be ruled out because it " w i l l be

exchange, and obligations to future generations.

contested by some citizens w h o insist on measuring their g o o d by

stuff that b o t h of us d e s i r e . "

17

Yet any particular yardstick for d e t e r m i n i n g "as m u c h " i n this

y >

Some citizens, in other w o r d s , can always

be expected to disagree about a yardstick for d i s t r i b u t i o n a l ques-

man levels against u t i l i t a r i a n i s m . Even for the simplified d i s t r i b u -

tions because they w i l l do better according to some other possible

t i o n p r o b l e m e m p l o y i n g the imaginary substance manna, a variety

yardstick for evaluating everyone's shares. If any yardstick con-

o f yardsticks m i g h t be devised under w h i c h some persons w o u l d

tested i n this w a y by some citizen is ruled out by neutrality, then

d o far better and others far worse, depending upon their p a r t i c u -

no yardstick w i t h substantive implications can ever be arrived

equal o p p o r t u n i t i e s (or time shares) for employing as much of the

I

a different y a r d s t i c k . "

dialogue can be subjected to the same basic critique that Acker-

lar conceptions of the g o o d . Some obvious possibilities include

1

99

i m p a r t i a l Dedsion Procedures

Keconstrusîton

a

t — c o n s i s t e n t w i t h this demanding conception of neutrality. The d o o r is opened even more widely to such

controversies

manna as one m i g h t like at a given time or equal chances at l o t -

once the debate moves beyond the simplified manna p r o b l e m to

tery tickets for r i c h payoffs, or equal life-support payments doled

the full question of d i s t r i b u t i o n under ideal conditions. Here it is

out i n increments for as long as one m i g h t live. There is no reason

not manna but income and wealth that count as material equality.

to regard identical physical chunks of manna as a yardstick i m -

F u r t h e r m o r e , the argument ranges over genetics, education, and

mune f r o m controversy, w h i l e every other possible specification

obligations to future generations. I n each of these cases, any choice

o f content for equality is regarded as nonncutral.

of a p a r t i c u l a r yardstick is open to controversy. A n y answer to

F u r t h e r m o r e , w h y should equal physical quantities of manna

the question A n equal share of what? w o u l d appear open to the

be compatible w i t h neutrality w h e n equal satisfaction is ruled out

same argument A c k e r m a n employs against u t i l i t a r i a n i s m : w h y

as a neutral solution? If I c l a i m only that 1 should be as satis-

one yardstick f o r measuring shares rather than another?'

10

fied w i t h my share as y o u are w i t h yours, it is hard to see h o w

Even the d i v i s i o n of the general d i s t r i b u t i o n p r o b l e m into a

that amounts to c l a i m i n g that m y "conception of the g o o d is

series of discrete power dimensions (genetics, education, p r o p e r t y

b e t t e r " — f o r I am proposing, i n a sense, to treat our d i f f e r i n g con-

rights, p o l i t i c a l power) is itself a step t o w a r d certain d i s t r i b u t i o n a l

ceptions equally.

Similarly, I may propose such equal treatment

metrics compared w i t h a diversity of possible alternatives. Some

without claiming "unconditional superiority," without claiming

theories m i g h t l u m p these all together and p e r m i t inequalities

100

S t r a t e g i e s o î Meztmsfmtîfan

IPrefes-eme, U t i l i t y , a n d t h e

<&m4

101

in one to compensate for inequalities in another. Other theories

onlv get a guaranteed m i n i m u m interpreted so m i n i m a l l y that it

m i g h t add different dimensions. Degrees of liberty, social esteem,

was v i r t u a l l y useless as a basis for differentiating conclusions.

interpersonal power, job satisfaction, h e a l t h — t h e list of possible elements of value in a d i s t r i b u t i o n a l theory is open-ended

A parallel difficulty emerges for A c k e r m a n . H i s b o o k has a

and

" m a n t r a " that goes: " I ' m at least as good as you are, therefore, I

c o n t r o v e r s i a l : " Since the r o o t n o t i o n of Ackcrman's strategy is

should get at least as m u c h . " But this f o r m u l a cannot be filled out

that all exercises of " p o w e r " are to be subjected to the equalizing

w i t h o u t an answer to the next question, A t least as much w h a t ? —

rule of neutral dialogue, it seems t o o much to expect that any par-

w i t h o u t an argument for one particular d i s t r i b u t i o n a l yardstick

ticular conceptualization of these power relations, any p a r t i c u l a r

compared to the competing alternatives. T h i s is precisely the move

d i s t r i b u t i o n a l yardstick, can plausibly be claimed as the uniquely

f o r b i d d e n by strict neutrality (as we saw in the dialogue r u l i n g

uncontroversial s o l u t i o n , the uniquely neutral content for equal

out u t i l i t a r i a n i s m ) . Since, as Ackerman's Commander concluded,

power relations.'

" w e search in vain for a neutral yardstick," neutrality interpreted

12

Even if the case f o r equality were granted for purposes of argument, each of these conceptualizations of power relations c o u l d be

this strictly leads to an empty formalism, W i t h o u t some p a r t i c u lar content

specified for w h a t is distributed equally, the resulting

employed to fill out a n o t i o n of equal d i s t r i b u t i o n w i t h d r a m a t i -

principle offers no hope of p r o v i d i n g the differentiating conclu-

cally different substantive i m p l i c a t i o n s .

sions r e q u i r e d f o r c r i t e r i o n 1 .

45

The dilemma should be

clear: o n the one hand, w i t h o u t a yardstick or metric, the theory is e m p t y ; but on the other hand, we cannot provide i t w i t h a

2.7 More on Category

m e t r i c or yardstick and at the same time remain neutral a m o n g

and the

substantive theories of the g o o d . Once the proposed d i f f e r e n t i -

3: Preference,

Utility,

Good

a t i n g conclusions depend o n a particular substantive theory o f

To give f u r t h e r content to the kinds of controversies that arise

the g o o d , they can be avoided by rival theorists e m p l o y i n g r i v a l

once the quest f o r strict neutrality is abandoned, let us t u r n to

theories of the g o o d i n support of their o w n preferred ultimate

the r e m a i n i n g classifications i n figure 5. We are concerned here

principles. Once neutrality Is loosened, the basis for j u r i s d i c t i o n a l

w i t h conceptions for assessing interests i n a theory that pur-

challenges arises, v i o l a t i n g our c r i t e r i o n 3.

ports to assess everyone's interests i m p a r t i a l l y . I w i l l adapt some

R e t u r n i n g to the t y p o l o g y i n figure 5, the difficulty w i t h the

t e r m i n o l o g y f r o m Brian Barry by d i v i d i n g these theories into

first o p t i o n — i n t e r p r e t i n g interests and other relevant claims w i t h

" w a n t - r e g a r d i n g " and " i d e a l - r e g a r d i n g " theories of the g o o d .

strict n e u t r a l i t y — i s that it robs the resulting principle of signifi-

The w a n t - r e g a r d i n g versions c o n f o r m to citizen sovereignty, w h i l e

cant substantive content. I n Rawls's case, when the t h i n theory o f

the ideal-regarding ones do not. I w i l l say that a principle adheres

the g o o d is interpreted neutrally, w h e n it is interpreted i n a purely

to citizen

sovereignty

1

i f i t judges a person X to be better off if,

procedural and instrumental w a y so as not to be biased t o w a r d

and o n l y i f , at least some of X's actual preferences

any particular conception of the g o o d , no support can be f o u n d

The citizen is sovereign i n the sense that it is his or her preferences

for any significant p r i o r i t y rankings among the so-called p r i m a r y

w h i c h must be satisfied if the theory is to assess that person as

goods. Similarly, w h e n we interpreted Rawls's proposed threshold

better off.

in a manner that m i g h t seem compatible w i t h neutrality, we c o u l d

are satisfied.

W a n t - r e g a r d i n g and ideal-regarding theories each introduce

Strategies sf

Reiorisirwition

distinctive sources of controversy. The regarding theories is which

103

P r e f e r e n t e , U t i l i t y , a n d t h e Good

issue for w a n t -

i n g that . . . cases that are never likely to be actually encountered

preferences of an i n d i v i d u a l ought to

first

d o n o t have to be squared w i t h the t h i n k i n g of the o r d i n a r y m a n ,

count as defining his g o o d . Recent efforts w i t h i n utilitarianism t o wrestle w i t h this p r o b l e m can be used to illustrate the difficulty. hirst, some theories do not discriminate at all a m o n g pref-

whose principles are not designed to cope w i t h such cases.'"

1

Are such cases of fanaticism as fantastic and hypothetical as H a r e claims? Perhaps he is right that it is difficult to imagine

erences; they count all of t h e m . Consider, for example, Hare's

an individual

attempt to reconstruct u t i l i t a r i a n i s m . Hare's theory, like other

the H o l o c a u s t that they o u t w e i g h , in a strict u t i l i t a r i a n calcula-

u t i l i t a r i a n theories in the t r a d i t i o n of the impartial spectator, is a

t i o n , all the misery they w o u l d require. But the p r o b l e m cannot

hypothetical-choice version of the i m p a r t i a l i t y argument: " W h a t

be dispatched so easily. For one t h i n g , it does n o t require such

the p r i n c i p l e of u t i l i t y requires of me is to do for each man affected

a horrendous i n d i v i d u a l utility monster. The desires of numer-

by m y actions w h a t I wish were done for me in the h y p o t h e t i -

ous i n d i v i d u a l s must be taken into account. If there are enough

cal circumstance that i were in precisely his s i t u a t i o n ; and, if m y

Nazis w i t h hatred of even moderate intensity, a strict u t i l i t a r i a n

actions affect more than one man (as they nearly always w i l l ) to d o w h a t I w i s h , all in a l l , to be done for me in the hypothetical circumstances that 1 occupied all their situations (not of course at the same time but, shall we say?, i n random o r d e r ) . "

2

H a r e moves f r o m this equal consideration of everyone's interests to m a x i m i z i n g aggregate

N a z i whose preferences are so intense in favor of

c a l c u l a t i o n about total preference satisfaction in the society may conceivably s u p p o r t horrendous policies directed against Jews or other m i n o r i t y groups—once the numbers and intensities on both sides are s u m m e d up t h r o u g h o u t the society/ Perhaps Flare's mistake, and that of many other utilitarians, is

u t i l i t y by conceptualizing equal

to a d m i t that satisfaction of preferences such as that of the Nazis

consideration as equal w e i g h i n g i n an overall sum, and by de-

t o w a r d the Jews ought to count as a f o r m of u t i l i t y i n the first

fining

i n d i v i d u a l interests according to the satisfaction of desire

place. A n alternative strategy, advocated by Ronald D w o r k i n , is

o r u t i l i t y — - w i t h o u t i n t r o d u c i n g any distinctions among the pref-

to count only " p e r s o n a l " preferences (about one's o w n situation)

erences whose satisfaction is to count as desire or u t i l i t y . This

and not " e x t e r n a l " or " p u b l i c - r e g a r d i n g " preferences (about the

failure to discriminate among preferences confronts h i m w i t h the

s i t u a t i o n of others). However, such a strategy w o u l d not only rule-

p r o b l e m of " f a n a t i c a l " desires whose fulfillment requires h a r m to

out nasty external preferences such as the N a z i ' s , but it w o u l d also

others: " F o r example, if the Nazi's desire not to have Jews a r o u n d

rule out noble external preferences such as a l t r u i s m and d e v o t i o n

is intense enough to o u t w e i g h all the sufferings caused to j e w s by arranging not to have them a r o u n d , then, on this version of u t i l i t a r i a n i s m , as on any theory w i t h the same f o r m a l structure, it o u g h t to be s a t i s f i e d . "

}

i n c o r p o r a t i n g such fanatical preferences thus appears to p r o duce devastating consequences. It is w o r t h pausing to consider

6

to the g o o d o f m a n k i n d . Are we to count wants that support selfishness but not those that support self-sacrifice? We end up w i t h a severely truncated v i e w of the human good if w e l i m i t it to "pers o n a l " preferences (applying only to ourselves) and rule out all " e x t e r n a l " preferences (applying to others). W h y does D w o r k i n propose to rule out consideration of "exter-

Hare's defense to such an obvious objection: " T h e p r o b l e m is to

n a l " preferences, such as the Nazi's? The difficulty is that " p o l i t i -

be overcome by, first, p o i n t i n g out that fanatics of this heroic stat-

cal preferences, like the Nazi's, are on the same l e v e l — p u r p o r t to

ure are never likely to be encountered (that no actual Nazis had

occupy the same space—as the utilitarian theory itself." A suitably

such intense desires is, I t h i n k , obvious); secondly, by remember-

" r e s t r i c t e d , " defensible utilitarianism "cannot, w i t h o u t contradic-

Preference, Utility, and the g o o d

185

r i o n , be neutral between itself and N a z i s m , i t cannot accept at

wilt come o u t . i t is a complex empirical question depending o n i n -

once a duty to defeat the false theory that some peoples prefer-

centive effects, d e c l i n i n g marginal u t i l i t y of income, the numbers

ences s h o u l d count for more than other peoples and a dtity to

affected o n each side, and the intensity w i t h w h i c h an ideology

strive as to fulfill the political preferences of those w h o passion-

of p r o p e r t y entitlements is held m the p o p u l a t i o n . Setting aside

ately accept that false theory, as energetically as it strives for any

the interpersonal-comparisons difficulties facing D w o r k i n ' s pos-

other preferences. . . .

If utilitarianism counts the fact of these

tulated " u t i l i t a r i a n computer," a utilitarian calculation w i l l some-

preferences it has denied what it cannot deny, w h i c h is that justice

times favor r e d i s t r i b u t i o n , but it w i l l also sometimes oppose i t .

requires i t to oppose t h e m . " ''

Even if strong altruistic sentiments among the prosperous ma-

1

1

s

W h i l e D w o r k i n has an easy target here—few w o u l d deny

j o r i t y favor r e d i s t r i b u t i o n , those sentiments cannot be counted i n

that justice and N a z i s m are absolutely i n c o m p a t i b l e — w c need to

d e t e r m i n i n g w h a t justice is, if we f o l l o w D w o r k i n ' s argument, be-

probe further the grounds w i t h i n liberal theory for not c o u n t i n g

cause those sentiments w o u l d be based on a theory that rivals re-

N a z i preferences equally w i t h all others. We m i g h t distinguish

stricted u t i l i t a r i a n i s m i n occupying the same theoretical "space."

the N a z i D w o r k i n i m a g i n e s — w h o argues for the persecution of

M o s t i m p o r t a n t , in some cases the u t i l i t y f r o m a l t r u i s m w o u l d

Jews on the grounds that Jewish preferences should count f o r

tip the balance t o w a r d r e d i s t r i b u t i o n , but purely selfish "per-

l e s s — f r o m the consistent u t i l i t a r i a n N a z i w h o bedeviled blare by

s o n a l " preferences w o u l d support starvation among the under-

c o u n t i n g all preferences equally. Such a consistent N a z i cannot be

class (in a calculation based on selfishness but not on malice)-

dismissed as advocating unequal counting. Rather, he just offers

D w o r k i n w o u l d have us avoid counting the altruistic sentiments

a different conception of w h a t should count e q u a l l y — b u t in an e n v i r o n m e n t in w h i c h enough people have intense, nasty preferences that unconscionable results w o u l d f o l l o w f r o m c o u n t i n g them equally.

in d e t e r m i n i n g w h a t justice is because they are based, as the N a z i preferences were, o n a rival theory of justice—a rival to restricted u t i l i t a r i a n i s m ( w h i c h counts only personal preferences). But this argument depends, crucially, o n restricted utilitarianism

F u r t h e r m o r e , note that D w o r k i n ' s explanation for w h y w c

itself being a reliable guide to distributive justice. In this case, it

should rule out the Nazi's externa! preferences—that N a z i s m and

does not appear to be. The sentiments D w o r k i n w o u l d have us

u t i l i t a r i a n i s m occupy the same theoretical "space"-—would also

discount s u p p o r t feeding the underclass, while selfish calculations

rule out preferences for more plausible theories of justice w h i c h

w i l t , at least sometimes, support the opposite conclusion.

also occupy the same space i n that they are full-fledged rivals to

We can make the p r o b l e m even worse by i m a g i n i n g a clever

u t i l i t a r i a n i s m . D w o r k i n can, of course, respond that these other

N a z i w h o has read D w o r k i n ' s theory and supports r e d i s t r i b u t i o n

full-fledged rivals are incorrect. But the difficulty is in d e t e r m i n -

of Jewish p r o p e r t y to Aryans by plugging only personal u t i l i t y

ing, i n the first place, w h i c h is the correct theory of justice.

calculations i n t o the " u t i l i t a r i a n computer." if the society has a

It is far f r o m clear that a "restricted u t i l i t a r i a n i s m " (one w h i c h

concentration o f prosperous Jews and a lot of poor Aryans w h o

counts o n l y personal preferences) w i l l consistently yield plausible

receive great u t i l i t y f r o m getting even a chance (or a lottery ticket)

results i n terms of distributive justice. Suppose a prosperous ma-

for the confiscated properties and businesses, it is quite possible

j o r i t y is faced w i t h demands for r e d i s t r i b u t i o n on behalf o f a

that u t i l i t a r i a n calculations based purely on selfishness w i l l sup-

dispossessed underclass. There w i l l be varying results as to h o w a

p o r t confiscation and persecution. Furthermore, if such a soci-

strict u t i l i t a r i a n calculation i n v o l v i n g purely personal preferences

ety also has a l o t of altruistic sentiment, it could well be the

Strategies o í

BeíOíisíruífion

Preferente, Utility, and the Good

107

case that counting externa! preferences w o u l d protect che Jews

as u t i l i t y , then it is difficult to see how a utilitarian theory can

f r o m persecution, but counting only selfish preferences w o u l d not.

exclude some preferences entirely f r o m consideration and m a i n -

D w o r k i n ' s strategy of r u l i n g out all external preferences depends

tain the basic c l a i m that all u t i l i t y and disutility experienced by-

absolutely on the p r i o r claim that u t i l i t a r i a n i s m restricted to per-

eve ryone have been counted equally. N o t counting certain prefer-

sonal u t i l i t y is a completely reliable guide to distributive justice.

ences brings i n t o question the claim to equal consideration at the

It is this crucial c l a i m w h i c h seems dubious in these examples. A different strategy is offered by John C. Harsanyi, w h o derives

foundations of any version of systematic u t i l i t a r i a n i s m . O n the other h a n d , c o u n t i n g all preferences, i n c l u d i n g " a n t i s o c i a l " ones,

average u t i l i t y f r o m a variant of Rawls's original p o s i t i o n . He at-

exposes the resulting theory to horrendous counterexamples,

tempts, in effect, to rule out N a z i external preferences but not

in Hare's N a z i p r o b l e m .

as

altruistic ones. H e proposes to exclude " a l l clearly antisocial pref-

It is w o r t h n o t i n g that Hare offers a second line of defense

erences, such as sadism, envy, resentment, and malice." H a r s a n y i

against the f a n a t i c - N a z i p r o b l e m — t h a t "cases that are never likely

bases this exclusion on a conception of the dimensions of person-

to be actually encountered do not have to be squared w i t h the

ality that are relevant to membership in w h a t he calls "a m o r a l

t h i n k i n g of the o r d i n a r y m a n . " However, once numbers are taken

c o m m u n i t y " : " U t i l i t a r i a n ethics makes all of us members of the

into account, it is not unrealistic to imagine such fanatical prefer-

same m o r a l c o m m u n i t y . A person displaying ill w i l l t o w a r d others

ences directed at m i n o r i t y groups being supported on u t i l i t a r i a n

does remain a member of this c o m m u n i t y , but not w i t h his w h o l e

grounds. C o n t i n u i n g religious and political conflicts i n Lebanon

personality. T h a t part of his personality that harbours these hos-

and N o r t h e r n Ireland, as well as a case I applied earlier to utilitar-

tile antisocial feelings must be excluded f r o m membership, and

ian t h e o r y — - I d i A m i n ' s expulsion of the Asians f r o m Uganda

has no c l a i m for a hearing w h e n it comes to defining our concept

illustrate that intense preferences of large numbers can be directed

of social u t i l i t y . "

9

If we are to pick and choose among the preferences to be satisfied, we need some justification for our selection apart f r o m the assumption that our operative theory of the good is preference

-

at the i m p o s i t i o n of severe deprivations on particular groups. T h e issue is not a purely imaginary one l i m i t e d to philosophical discussion. H a r e argues, however, that in e m p l o y i n g such

counter-exam-

satisfaction. Whatever we t h i n k of Harsanyi's n o t i o n of m o r a l

ples, we are confusing the "level 1 " t h i n k i n g of the o r d i n a r y rea-

c o m m u n i t y , it makes no pretense to being neutral among theories

soner w i t h w h a t he calls the "level 2 " t h i n k i n g of the abstract

of the g o o d . Rather, it is a particular, controversial m o r a l i d e a l —

philosopher. It is only the level 2 t h i n k i n g of the philosopher

only one among the many that could be inserted into a m o d e l

that need h o l d p r o o f against every " f a n t a s t i c " counterexample we

of i m p a r t i a l i t y . This exclusion of some preferences based on our

m i g h t imagine. Yet h o w w o u l d Hare's level 2 theory deal w i t h

m o r a l evaluation of their appropriateness represents a sharp de-

such a case? H a r e tries to avoid the problem by focusing o n the de-

parture f r o m the u t i l i t a r i a n t r a d i t i o n , w h i c h has generally avoided

sign of the appropriate level I principles to be " i m p l a n t e d " in the

specifying the substantive content of preferences."' T h a t t r a d i t i o n

p o p u l a t i o n t h r o u g h m o r a l education. Yet the goal of this moral

has been preoccupied w i t h measuring the quantity and sometimes

education is u l t i m a t e l y u t i l i t a r i a n and the p o i n t of these counter-

the q u a l i t y of preference satisfaction, but not its legitimacy or ille-

examples is to show that such an ultimate a i m is inappropriate

gitimacy. If u t i l i t y is ultimately w h a t counts for a u t i l i t a r i a n , and if

w h e n u t i l i t y is defined so as to be entirely indiscriminate about

satisfaction of certain preferences is experienced by some persons

w h i c h preferences must be satisfied.

itrai&gies of

iPrelerestsa, U t i l i t y , s a d

Mmmsfrntitm

Want-regarding theories ail involve c o m m i t m e n t to one o r another controversial theory of the g o o d . Acketman's a n t i - u t i l i tarian dialogue quoted in section 2.6 above incisively made the

109

scrutable to every other m i n d and no c o m m o n denominator of feeling is possible."

13

If we take this " i n s c r u t a b i l i t y " seriously, then want-regarding

neutral a m o n g

theories are l i m i t e d to an extremely n a r r o w range of j u d g m e n t . We

theories o f the g o o d . Rather, it is a specification of one p a r t i c u -

can, of course, f o l l o w Pareto in a p p r o v i n g of changes that make

lar theory w i t h special controversies attached to i t . Clearly, the

some people better off and no one worse off. T h a t inference re-

choice of w h i c h preferences are to be counted is a first major

quires o n l y ( o r d i n a l ) intrapersonal comparisons. But almost every

source o f controversy. A second notorious set of issues facing

p o l i t i c a l choice of any significance in the real w o r l d w i l l make at

p o i n t that preference satisfaction is, itself, not

w a n t - r e g a r d i n g theories is the interpersonal comparison of w a n t

least some people worse off, w h i l e perhaps m a k i n g others better

satisfaction. Let us briefly explore this second major controversy

off.

before t y i n g the discussion back to our basic criteria f o r an ac-

theory cannot be entirely insensitive to the question of h o w at least

ceptable theory.

some of these losses compare to at least some of the gains, the basis

14

Provided we assume that any defensible w a n t - r e g a r d i n g

Ever since L o r d Robbins's influential article in 1938 expressing

f o r significant evaluation of policy alternatives is blocked once the

skepticism about the possibility of rigorous interpersonal c o m -

" i n s c r u t a b i l i t y " claim is taken seriously. Significant policy choices

parisons,

w i l l require some m i x t u r e of gains and losses, placing them in the

12

proponents of want-regarding theories such as u t i l i t a r i -

anism have faced the dilemma that they must either confine their

realm of w h a t the economists call the "Pareto noncomparable."

judgments to strict Pareto improvements or they must face the

The n o t o r i o u s attempts at an end run a r o u n d these difficul-

q u a g m i r e of interpersonal comparisons. The former path leads to

ties (the K a l d o r - H i c k s and Scitovsky compensation tests) rest o n

t r i v i a l i t y ; the latter inevitably produces controversy and indeter-

w h a t W i l l i a m J. Baumol called "a concealed interpersonal com-

minacies. Once again, we are faced w i t h a choice between theories

parison o n a money basis."

w h i c h either do not significantly differentiate, or do so based o n a

utilities requires the assumption that a p o u n d or a dollar "yields

controversial account of the g o o d whose usage opens the theory

the same amount of satisfaction to whomever i t is given, rich or

to j u r i s d i c t i o n a l challenges by other theories using rival c o n t r o -

p o o r . " As Little concluded in his now-classic assessment of w e l -

versial accounts of the g o o d . Once again, we are faced, at b o t t o m ,

fare economics, "Presumably, most people w o u l d agree that such

w i t h a choice between vacuousness (violating c r i t e r i o n 1 [a]) and

an assumption is r i d i c u l o u s . " " O f course, the use of compensa-

j u r i s d i c t i o n problems ( v i o l a t i n g c r i t e r i o n 4).

t i o n tests to make evaluations beyond the l i m i t a t i o n s of the Pareto

l>

Using money as a place holder for

1

i n reacting to the story of an Indian Brahmin w h o regarded

p r i n c i p l e can be m o d i f i e d to take account of differences between

himself as " t e n times" as capable of satisfaction as a l o w l y U n -

groups such as d e c l i n i n g marginal u t i l i t y of income. Cost-benefit

touchable, Robbins w r o t e : " I c o u l d not escape the c o n v i c t i o n t h a t ,

analysis is often applied so as to incorporate such weights, but they

if I chose to regard men as equally capable of satisfaction and he

can only be developed i n a rough fashion and there is w i d e r o o m

to regard them as d i f f e r i n g according to a hierarchical schedule,

for reasonable disagreement about any particular a p p l i c a t i o n . ' '

the difference between us was not one w h i c h could be resolved

Hence, we can see that the basic difficulty for w a n t - r e g a r d i n g

by the same methods of demonstration as were available i n other

theories arising f r o m interpersonal comparisons is that, o n the one

fields of social j u d g m e n t . " Robbins concluded: "Every m i n d is i n -

h a n d , s t i c k i n g w i t h i n the limits of the Pareto principle avoids the

110

Strategies of Reconstruction

Preference, Utility, a n d t h e Good

111

p r o b l e m but at the cost of silence o n most issues of social i m p o r -

the fact that a value o r a i m is among those actuailv accepted by an

tance; o n the other hand, venturing beyond those limits c o m m i t s

agent gives it no special status whatsoever in the d e t e r m i n a t i o n of

the resulting theory to interpersonal comparisons of want satisfac-

that agent's g o o d . As a result, such ideal-regarding theories avoid

t i o n — i n t e r p e r s o n a l comparisons that are inevitably controversial

the c o n u n d r u m s just mentioned about interpersonal comparisons

and can only be accomplished in a rough fashion.

of w a n t satisfaction. Degrees of want satisfaction play no role in

T h e r e m a i n i n g o p t i o n in figure 5 raises difficulties of an entirely different k i n d . As we just saw, want-regarding theories must

this k i n d of theory. H o w e v e r , ideal-regarding theories avoid these t w o basic dif-

face b o t h (a) the p r o b l e m of d e t e r m i n i n g w h i c h preferences are

ficulties

relevant t o an individual's good and (b) the problem that m i g h t

strong paternalistic

be summarized as the Pareto d i l e m m a : either stick to the l i m i t e d

off even if none

at a price, '['hey are committed to w h a t m i g h t be called inferences,

such that an agent X must be better

of X's o w n preferences w o u l d s u p p o r t such a

range of judgment sanctioned by the Pareto principle o r c o m -

conclusion. T h e paternalism problem challenging ideal-regarding

m i t the theory to controversial and inevitably inconclusive claims

theories shifts the burden of p r o o f ; it demands of tis a rationale

about interpersonal comparisons of w a n t satisfaction.

for d i s c o u n t i n g X ' s o w n conceptions of his g o o d in evaluating X's

However, these difficulties can largely be avoided by the sec-

o w n g o o d . T h i s v i e w w o u l d n o t , in the least, deny that there is

o n d m a i n o p t i o n , ideal-regarding theories. These latter theories

r o o m for some paternalistic judgments; only that, when we set

depart f r o m " c i t i z e n sovereignty": they support the conclusion

aside X's o w n views, some justification is r e q u i r e d .

17

that a person is better-off regardless of whether any of his actual

Few w o u l d deny that i n at least some isolated cases, there are

preferences have been satisfied. T h e most p r o m i n e n t contempo-

g o o d grounds for paternalistic inferences. Even strongly paternal-

rary i l l u s t r a t i o n is Rawls's d o c t r i n e of p r i m a r y goods. W h i l e i t

istic inferences—where

was useful, earlier, for us to use Rawls's t h i n theory of the g o o d

even if none o f his o w n preferences support that conclusion—are

as an i l l u s t r a t i o n of the attempt to achieve strict neutrality, the

undeniably appropriate in special cases. Consider the person w h o

set of inferences the t h i n theory is supposed to s u p p o r t — t h e doc-

suffers f r o m the delusion that he w i l l fly u p w a r d if he jumps o u t

trine of p r i m a r y goods—can be used to illustrate the problems o f

the w i n d o w . " If we restrain h i m so he never gets the chance t o

ideal-regarding theory.

test his theory, o u r inferences about his welfare may, quite ap-

T h e p o i n t is that in the o r i g i n a l position we make assumptions about our interests w h i c h are supposed t o h o l d regardless

we conclude that an agent is better off

2

propriately, be strongly paternalistic. M o r e generally, B a r r i n g t o n

of w h a t

M o o r e has documented cases of injustice whose most shocking as-

our actual preferences t u r n out t o be, once the veil of ignorance

pect is the acceptance by the victims of the ideology r a t i o n a l i z i n g

is l i f t e d . For purposes of d i s t r i b u t i v e justice, we are supposed

their oppression. M o o r e ' s analysis ranges across Untouchables,

to value l i b e r t y first, equal o p p o r t u n i t y second, and income and

ascetics, and even some concentration camp v i c t i m s .

wealth t h i r d . These conclusions are based o n a conception of o u r

dramatic cases apply t o special circumstances.The problem facing

21

But these

interests, regardless of whether, in actual life, our preferences bear

ideal-regarding theories of the good is that they are n o t l i m i t e d t o

any relation to these p r i o r i t i e s . For such ideal-regarding theo-

such unusual and isolated cases. Rather, they apply generally t o

ries, there is no p r o b l e m of p i c k i n g and choosing among actual

w h o i e populations t o provide criteria to support a theory of dis-

preferences, accepting some w h i l e rejecting others. O n this view,

t r i b u t i v e justice o r a solution to our d i f f e r e n t i a t i o n c r i t e r i o n . This

!S

ifrateg iss af Resflnstruition

112

^ r e f e r e s i s e , JStiiify, cmd t h e G e s d

113

general range of application makes the burden of proof c o n f r o n t -

conclusions, v i o l a t i n g c r i t e r i o n 1, w h i l e iess-than-strictly neutral

ing a strongly paternalistic theory more difficult. We may have to

theories are subject to j u r i s d i c t i o n problems, v i o l a t i n g c r i t e r i o n 3.

neglect the actual preferences of whole populations in our evalua-

In neither case do we get a firm basis for significant

t i o n o f their o w n g o o d . W h a t is it that disqualifies their o w n views

conclusions w i t h strong enough substantive implications to satisfy

f r o m having any weight i n , or bearing u p o n , this evaluation?

our criteria for an acceptable theory.

I d o not mean to argue that this question poses an insurmountable obstacle. M y p o i n t is only that the special paternalistic burdens of ideal-regarding theories open up r o o m for controversy and reasonable disagreement that are fully comparable to the difficulties

we encountered earlier w i t h want-regarding theories. I n

b o t h cases, once the quest for a strictly neutral theory of the g o o d has been given up, no single canonical solution can dispatch its rivals w h i l e resting i m m u n e f r o m challenges by other controversial theories of the g o o d for w h i c h symmetrical claims can be made. A n y one of these non-neutral theories of the g o o d can be combined w i t h a n o t i o n of i m p a r t i a l i t y to support significant substantive conclusions.

But such support is easily matched by

rival theories that share the same basic strategy but apply it to s u p p o r t rival conclusions—by

e m p l o y i n g their o w n non-neutral

theories of the g o o d . As can be seen in figure .5, we face a choice between b u i l d i n g a firm basis for largely empty conclusions (the strictly neutral strategy) and b u i l d i n g an insecure basis for significant conclusions (the non-neutral strategies just discussed). By an insecure base, 1 mean one subject to jurisdictional challenge by rival procedures m a k i n g symmetrical claims. The strictly neut r a l strategy survives the j u r i s d i c t i o n problem only by failing to offer d i f f e r e n t i a t i n g conclusions. The non-strictly-neutral strategies w i l l sometimes offer differentiating conclusions (satisfying c r i t e r i o n I ) , only to fail the j u r i s d i c t i o n problem (criterion 3). These latter theories, by relying on some controversial theory o f the g o o d i n order to get substantive conclusions, become vulnerable t o j u r i s d i c t i o n a l challenge by rival theories d u n employ a rival controversial theory of the good to get comparably ambitious results. The basic dilemma for these hypothetical thought e x p e r i ments is that strictly neutral theories lead to substantively e m p t y

conclusions—

The Ideal ©I a Self-Reflective Society

J . / Tot card

Reconstruction

As we saw i n parts i and 2, systematic versions of liberalism seem to require too m u c h . It may, nevertheless, be possible to develop an acceptable theory that satisfies the criteria specified in section 2 . 1 . Such a theory w o u l d distinguish among states: it w o u l d not be vacuous (satisfying criterion :t[aj) and i t w o u l d not produce b l i n d alleys (satisfying criterion l[b|). Furthermore, such a theory w o u l d provide a basis for its a u t h o r i t y that binds each citizen to the state (satisfying criterion 2}, that avoids jurisdiction problems f r o m rival theories (satisfying criterion 3), and that avoids delegitimating arguments f r o m i n d o c t r i n a t i o n problems (satisfying c r i t e r i o n 4). O u r survey of rival strategies i n part 2 shows h o w d i f f i c u l t it is to satisfy all of these criteria. If my claim is correct that at least one possibility plausibly does so, then the difficulties we have already encountered w i t h rival strategies establish the distinctive m e r i t of our proposal. For a theory to be individually b i n d i n g , it must justify the aut h o r i t y of the state and it must do so in a fairly demanding way. It must p r o v i d e an account of the state's a u t h o r i t y that is b o t h

116

11?

The IfigHimaiy Prebîwa

fi Se I f - S e l e c t i v e $ o « i e î y

universal (applying to everyone subject to that authority) and particular (applying to the relation between that state and its citizens, but not to other states and those same citizens). Thus, c r i t e r i o n 2 demands a great deal. Besides being a demanding requirement, it is also a p o w e r f u l one if we can satisfy i t . //' we can explain w h y everyone subject to the a u t h o r i t y of the state is individually bound to support i t , then we have explained, in an i m p o r t a n t sense, w h y the state is legitimate. A legitimate state, i n other w o r d s , is one that everyone

thev must open themselves up to jurisdiction problems ( v i o l a t i n g c r i t e r i o n 3). To get distinctive results, they cannot m a i n t a i n strict neutrality. A n d if they do not maintain strict neutrality, then they are open to j u r i s d i c t i o n a l challenge by rival accounts of relevant claims or interests that support rival principles. U w o u l d seem that our requirements for an acceptable theory, w h i l e less ambitious than the requirements for systematic

theory-

discussed i n part 1, are, nevertheless, too demanding. Such a negative conclusion w o u l d , however, be premature at this p o i n t .

(subject to its a u t h o r i t y ) is obligated to u p h o l d . This n o t i o n of legitimacy w i l l play a key role i n the argument as it unfolds.

3,2 The Legitimacy

N o t e h o w difficult it w o u l d be to satisfy criterion 2 in the context of our other r e q u i r e m e n t s — h o w difficult it is to estab-

Problem

The first issue of p o l i t i c a l philosophy is the legitimacy

prob-

A r e any states m o r a l l y legitimate in that their a u t h o r i t y is

lish an i n d i v i d u a l l y b i n d i n g connection that is also universal. As

lem:

we saw w i t h actual-consent theory, interpreting consent or agree-

justified? I w i l l interpret the authority of the state as being jus-

ment strictly

does a plausible job of satisfying criterion 2(b) (the

tified w h e n all its members have a moral o b l i g a t i o n to obey its

i n d i v i d u a l l y b i n d i n g character of the o b l i g a t i o n ) , but at the cost

commands. Hence, the p r o b l e m of political o b l i g a t i o n (applied to

of v i o l a t i n g c r i t e r i o n 2(a) (the universality requirement). Further-

all the citizens of the state) is ultimately equivalent, on this view,

m o r e , attempts to satisfy 2(a) only lead to b l i n d alleys ( v i o l a t i n g

to the p r o b l e m of w h i c h states (if any) have solved the legitimacy

c r i t e r i o n t f h j ) because the requirement for universal consent in

p r o b l e m . O f course, in some cases obligations to the state may

the strict sense leads, in effect, to anarchism.

conflict or have to be overridden by other obligations, but that is

O n the other hand, interpreting consent or agreement

loosely

may satisfy b o t h parts of criterion 2, but at the cost of f a i l i n g c r i terion l a (the vacuousness test). Consent or agreement has to be defined so loosely in order to get everyone in a modern nationstate c o m m i t t e d that consent i n that loose sense could be claimed by an enormous variety of states. Suppose, however, that we consider consent i n a hypothetical rather than an actual f o r m . W i t h an imaginary thought experiment, as i n strategy 3 (see fig. 2), i t does seem possible to provide d i f f e r e n t i a t i n g conclusions. Various versions or reconstructions of i m p a r t i a l t h o u g h t experiments in the style of Rawls, A c k e r m a n , or the other cases of strategy 3 already discussed can be expected to yield results that satisfy our first t w o criteria.' However, to do so,

an issue about the comparative strength

of political obligations,

not about whether they apply in the first place. This f o r m u l a t i o n of the legitimacy problem is rather demanding. To avoid c o m p l i c a t i n g issues, I w i l l say that (fully) solving the problem in this sense is sufficient

for the state's legitimacy, but I

w i l l leave open the question of whether it is necessary. For some purposes, it may well be useful to ignore the question of i n d i v i d u a l o b l i g a t i o n altogether and focus merely on w h i c h partially legitimate state is preferable to w h i c h other partially legitimate state. But my focus here is on ideal theory, on the question whether a theoretical solution satisfying all of our criteria is possible, at least under favorable conditions.' If we can answer this question affirmatively, then another stage in the development of liberal theory

lia

A SeJÎ-^eîlesîivs

Stsiîefy

The l e g r H r a s s y §*mhtem

Î19

can focus o n the assessment of options for less favorable c o n d i -

clarifies its m o r a l priorities in a manner that is free of the decisive

t i o n s — c o n d i t i o n s where the theoretical solution cannot be fully

objections that apply to rival versions.

realized.

W h y are category 3 theories (see fig. 2) subject to j u r i s d i c t i o n

States that justifiably determine political obligations for all of

problems i n a w a y that my proposal, in category 4, is not? There is

their members w i l l be regarded here as having solved the legiti-

a difference, as Ronald D w o r k i n pointed out in discussing Rawls,

macy p r o b l e m . Hence, the legitimacy problem poses an ethical

between a hypothetical bet and a real one. If you really made a

issue and not merely a sociological one. Legitimate states are not

bet under appropriate conditions, then you are n o w obligated. To

merely those that the people in them happen to regard as legiti-

argue that you m i g h t have rationally and under fair circumstances

mate. Nevertheless, the actual support of the p o p u l a t i o n w i l l play

made one bet or another, and that now you should receive the

a crucial role i n my argument. Actual s u p p o r t — u n d e r certain

proceeds f r o m this bet or that, seems irrelevant and u n c o n v i n c i n g .

2

favorable and demanding c o n d i t i o n s — w i l l determine solutions to

W h i c h imaginary bet should y o u collect on? There w i l l be c o m -

the legitimacy p r o b l e m .

peting claims based on competing hypothetical constructions of

It should not be surprising that the actual support of the m e m -

w h a t y o u r a t i o n a l l y ought to have done. This is the j u r i s d i c t i o n

bers plays some role in d e t e r m i n i n g whether a state is legitimate. If

p r o b l e m facing theories i n category 3.

our criteria ignored this factor entirely, then there m i g h t be cases

By contrast, there are some conditions under w h i c h we can

where w e , as philosophers or theorists viewing the matter f r o m

t h i n k of w h o l e societies as, i n a sense, actually

outside, held some state to be fully legitimate despite the active and

a certain k i n d of shared understanding. It w o n ' t do to legitimate

c o n t i n u i n g dissent of most of the p o p u l a t i o n . The purely socio-

just any shared understanding, as Walzer does in his b o o k

logical c l a i m that the state lacked significant support w o u l d , by

of Justice.

itself, block any c l a i m that a full solution to the legitimacy p r o b -

Some people have such defective knowledge or judgment that they

lem had been achieved. A c t u a l support seems to be necessary b u t

should not be p e r m i t t e d to gamble. But if the clearly objectionable

not sufficient. Factors justifying that support are, of course, re-

cases are r u l e d o u t , then the agreements that are actually made

q u i r e d as w e l l . The legitimacy of the state poses a m o r a l p r o b l e m

are not suspect. T h e difference between categories 3 and 4 is that

t h a t requires that we take account of both subjective and objective

theories i n category 3 w o u l d hold a society to a particular, purely

factors. We need to consider b o t h w h a t people actually do t h i n k

hypothetical bet. M y proposal in category 4 w o u l d only h o l d a

or believe and some normative criteria that apply independently

society to the one that has actually been placed under conditions

of those beliefs.

where its collective ability to bet in the appropriate way has been

Ideal theory pursues the question whether a solution to the

placing a bet o n Spheres

Some bets, some choices or c o m m i t m e n t s , are coerced.

guaranteed.

legitimacy p r o b l e m is possible at a l l , given favorable conditions, i t

We have not n o w placed our bets. I n that sense, m y argument

does not directly prescribe w h a t we should do when those favor-

is as hypothetical as any o f the others. But i f we d i d , the actual

able conditions are not achievable. Yet I believe it w i l l be useful

collective c o m m i t m e n t s w o u l d t r u m p any imaginary claims that

and c l a r i f y i n g to see whether we can develop a theory that satisfies

under other conditions we m i g h t have done something else.

our four basic c r i t e r i a , even under favorable conditions. If we can,

The fact of actually m a k i n g the bet establishes a p r e s u m p t i o n

then we w i l t have gotten a version of liberalism that coherently

that y o u are obligated to abide by the result—unless there is some

tamm

121

The L e g i t i m a c y P r o b l e m

basis for placing the action in the suspect category. In the same

tativc force of the state is justified is to say that many or most

way, the fact of an actual consensus establishes a presumption that

citizens are obligated to u p h o l d the actions of the state. A

the consensus or shared understanding is authoritative—unless

mal s o l u t i o n to the legitimacy problem has been achieved w h e n

there is some basis for placing i t i n the suspect category. The beginning p o i n t of our argument, the legitimacy p r o b l e m ,

mini-

many or most members are obligated to obey. 1 w i l l say, h o w ever, that a full solution

has been achieved only w h e n

everyone

is unavoidable. Any satisfactory account of the fundamentals of

'all the members) has an o b l i g a t i o n to u p h o l d the state and its

liberal t h e o r y — o r , indeed, any satisfactory account of p o l i t i c a l

authoritative actions. O f course, most of the state's a u t h o r i t a t i v e

theory, whether w i t h i n or outside the liberal t r a d i t i o n — w o u l d

actions do not actually involve force. Nevertheless, the threat o f

have to offer a response to the legitimacy p r o b l e m . States, by

authoritative force, if only i m p l i c i t , distinguishes the state f r o m

their very nature, demand the right to c o m m a n d the obedience of

most other institutions. A n d the ability to claim an a u t h o r i t a t i v e

all their members, at least o n selected i m p o r t a n t matters. For an

monopoly over the use of force in a given territory may be taken

i n s t i t u t i o n to q u a l i f y as a state i n the first place, it must have a

as a distinguishing feature of the state.

3

m o n o p o l y over the authoritative use of force i n the territory. If

Hence, a fully legitimate state does not merely c o m m a n d its

there are "independents" (to use N o z i c k ' s t e r m ) , then i n an i m -

members effectively. A l l its members also have a justified o b l i g a -

p o r t a n t sense the conditions for having a state w i l l not have been

tion to u p h o l d its actions, including its authoritative commands.

f u l f i l l e d . Independents are persons in the t e r r i t o r y w h o , because

O f course, w h e t h e r members do have such an o b l i g a t i o n may de-

they are i m m u n e f r o m the commands of the state, could c l a i m the

pend o n w h a t is c o m m a n d e d . The basic character of the state may

same right to use force as does the state. Independents have no

change if its policies change drastically enough. " U p h o l d i n g " the

o b l i g a t i o n s to u p h o l d the state or its actions. I n that sense, they

actions of the state does n o t , of course, mean agreeing w i t h those

represent a challenge to the state's legitimacy and an obstacle to

actions. U p h o l d i n g means l i v i n g up to the obligations of m e m -

solutions o f the legitimacy p r o b l e m .

bership (whether or not they are backed by force).'

1

Realistically,

W h a t does it mean to say that the state's use of force is " a u -

we can expect disagreement wherever there is meaningful free-

t h o r i t a t i v e " ? By this I mean (a) that the uses of force are backed

d o m of t h o u g h t . Since meaningful freedom of thought w i l l t u r n

by sufficient power to overcome any expected internal o p p o s i -

out to be necessary for the ideal of the self-refiective society to

t i o n , and (b) that they are backed by norms of evaluation that are

be achieved, dissent and disagreement w i l l have to be compatible

w i d e l y shared w i t h i n the society. The mere fact that o t h e r s — f o r

w i t h solutions to the legitimacy p r o b l e m , if the argument is to be

instance, c r i m i n a l s — m a y use force successfully does not, by itself,

successful. As a result, we w i l l have to grapple w i t h the same basic

mean that the m o n o p o l y claimed by the state no longer applies.

issue we saw i n our previous discussion of consent t h e o r y : F l o w

C r i m i n a l s d o not exercise authoritative force; w h a t they do is n o t

is the a u t h o r i t y of the state to be justified over those w h o disagree

backed by the w i d e l y shared norms of evaluation i n the society.

or dissent, p a r t i c u l a r l y when dissent or disagreement is v i r t u a l l y

O r , if c r i m i n a l action is w i d e l y accepted in this way, we should

inevitable under any acceptable account of realistic c o n d i t i o n s ?

question whether the essential conditions for having a state have begun to break d o w n . M o s t states exercise authoritative force. Some may succeed i n exercising justified

authoritative force. To say that the a u t h o r i -

How

5

are we to get universal obligations to support the state

in a manner that satisfies our four criteria? If we rely on actual consent so as to get everyone bound to the state, we either get vacuous conclusions ( v i o l a t i n g c r i t e r i o n I [a]) or we get the b l i n d

122

fi S e l f - S e f i e ï ' H v e Society

alley of anarchism { v i o l a t i n g c r i t e r i o n l l b j ) . We c o u l d , of course, weaken the requirement that we get everyone bound to the state,

The l e g i t i m a c y

123

Problem

•mv ambitious, substantive theory of justice impossible. Hence, if W

e wish to get substantive results f r o m a hypothetical t h o u g h t ex-

but then we w o u l d not solve the legitimacy problem in the sense

periment, we are left w i t h less-than-strictly-neutral

just proposed. Furthermore, we w o u l d violate c r i t e r i o n 2 (the

As a result, each of the rival theories is rendered dependent o n a

i n d i v i d u a l l y - b i n d i n g requirement). We m i g h t escape this p r o b l e m

controversial theory of the g o o d — u n d e r conditions where adop-

by f o r c i b l y i n d o c t r i n a t i n g everyone so as to achieve unanimous

tion of one rival controversial theory rather than another w o u l d

consent, but this w o u l d hardly satisfy any plausible account of vol-

yield a significantly different outcome. Hence, rival h y p o t h e t i -

untary consent. Furthermore, it w o u l d satisfy these criteria only at

cal thought experiments do not settle m o r a l controversies

the cost o f obviously v i o l a t i n g c r i t e r i o n 4 — t h e n o n i n d o c t r i n a t i o n

political m o r a l i t y . Rather, they embody those controversies

requirement.

m a k i n g s y m m e t r i c a l claims, each p u r p o r t i n g to have p r i o r i t y over

Alternatively, if we were to take one of the strategies of h y p o -

assumptions.

about by

its rivals.

thetical consent, we m i g h t satisfy our first t w o criteria (and per-

Once strict neutrality is abandoned, the jurisdictional conflicts

haps the n o n i n d o c t r i n a t i o n c r i t e r i o n as well), but only at the cost

are interminable among rival hypothetical thought experiments.

of j u r i s d i c t i o n problems. As we saw earlier, hypothetical stories

None of these hypothetical histories is our history. Each can be

can indeed be constructed that w i l l yield distinctive results so as to

challenged by a rival imaginary story y i e l d i n g different conclu-

differentiate among states. Furthermore, these distinctive results

sions and c l a i m i n g j u r i s d i c t i o n over the same issue—the first p r i n -

can be l i n k e d to each member t h r o u g h scenarios of h y p o t h e t i -

ciples of the liberal state, Clearly, if all four of our criteria are to

cal choice: the result can be presented as the choice we ourselves

be satisfied, a different strategy w i l l be necessary.

w o u l d make, to the extent that we were rational and under the ap-

M y strategy w i l l be to fill out category 4 rather than category 3.

p r o p r i a t e hypothetical conditions for m a k i n g the choice. Further-

I claim that the ideal of a self-reflective society provides grounds

more, i f the resulting principles were sufficiently demanding i n

for its o w n legitimacy. It purges itself of i n d o c t r i n a t i o n problems,

their requirements for liberty of political culture, they m i g h t sat-

so that its claims to a u t h o r i t y cannot be t r u m p e d by r i v a l , merely

isfy the n o n i n d o c t r i n a t i o n c r i t e r i o n as w e l l . It is, in other w o r d s ,

hypothetical scenarios. I n filling out category 4 , 1 propose to com-

conceivable that this sort of theory (category 3) m i g h t be devel-

bine the refinement mechanisms of hypothetical history w i t h the

oped so as to satisfy- three of our four criteria for success.

b i n d i n g a u t h o r i t y of a legitimate, actual consensus.

The difficulty is that this strategy is inevitably vulnerable on

The p o l i t i c a l practices of any society, I assume, lay c l a i m to

our r e m a i n i n g c r i t e r i o n , j u r i s d i c t i o n problems. Rival imaginary

legitimacy. The values and other assumptions according to w h i c h

t h o u g h t experiments all presume to be the appropriate t r i b u n a l

they support that claim I w i l l refer to as the norms of

for d e t e r m i n i n g the first principles of the liberal state. Each claims

internal to that political

j u r i s d i c t i o n over the choice of ultimate principles. Slightlv dif-

sible that the p o l i t i c a l practices of some society m i g h t not even

ferent constructions of the appropriate hypothetical conditions

lay c l a i m to legitimacy. For example, a state m i g h t attempt to sup-

yield drastically different outcomes. As we saw in detail earlier, a

port itself w i t h n o t h i n g but sheer force. I n that case, there w o u l d

construction of relevant claims or interests m i g h t

be no norms of evaluation internal to those practices. B u t that

plausibly presume to override such jurisdictional challenges. B u t

possibility does not offer a counterexample to my argument. M y

such a strictly neutral account of claims or interests w o u l d make

claim w i l l be that there are certain conditions under w h i c h a f u l l

strictly

neutral

practice.

evaluation

It is, of course, theoretically pos-

124

A S e l f - R e f l e c t i v e Society

s o l u t i o n to the legitimacy problem w o u l d be possible. If a p o l i t i c a l

c o n d i t i o n provides for the dialogue's self-critical capacities; its

system makes no effort even to claim legitimacy, that Is no bar to

n o t i m a n i p u l a t i o n provisions are also necessary for the process to

the thesis that, under some conditions, those systems that do lay

be voluntary. East, the consensus c o n d i t i o n defines the collective

c l a i m to legitimacy could be correct in that c l a i m .

self-understanding that emerges f r o m the dialogue. These four

I propose that we consider four demanding conditions w h i c h ,

conditions, together, specify the ideal of a self-reflective society.

together, p u r p o r t to be sufficient for p o l i t i c a l practices justifiably

Each of these conditions w i l l require elaboration. The first three

to c l a i m obligations for s u p p o r t f r o m all their members. If alt

w i l l occupy us for the rest of this chapter. The self-reflective con-

members are obligated i n this way, then the legitimacy p r o b l e m

d i t i o n w i l l require a chapter unto itself. First, however, it is w o r t h

has been solved and the practices justifiably define the appropriate

o u t l i n i n g h o w the basic strategy aspires to satisfy our four criteria

norms of p o l i t i c a l evaluation for that society.

for success. Suppose a society's political practices satisfied these four conditions. I am arguing that the m i n i m a l l y voluntary p r o v i -

These four conditions are: 1 . The practices must be consensual,

that is, they must have

w i d e support t h r o u g h o u t the society. 2. T h e practices must be (at least m i n i m a l l y ) voluntary

in

that exit should be unimpeded for anyone w h o m i g h t w i s h to leave. 3.

I he practices must supply essential

4. T h e practices must be self-reflective.

sion of essential benefits through self-reflective practices produces obligations on the part of each member. If those conditions are satisfied for all the members, then they all have some o b l i g a t i o n to support the result (we set aside questions about the strength

of

that o b l i g a t i o n compared to other moral claims). Hence, such a system achieves a full s o l u t i o n to the legitimacy p r o b l e m because

benefits. By this I mean basically

that they must be subjected to c o n t i n u i n g critical examin a t i o n t h r o u g h unmanipulated debate. As a result, I w i l l assume that over the long t e r m , the character of those practices (and the consensus about them) w i l l be decisively i n fluenced by the o n g o i n g process of "self-reflective" p o l i t i c a l dialogue. A society w h i c h is self-reflective in this sense w i l l have achieved w h a t we w i l l call a "self-reflective p o l i t i c a l culture."

all its members are obligated to support i t . I w i l l interpret the ideal of a self-reflective society as c l a i m ing that w h e n the p o l i t i c a l practices of a society have fully solved the legitimacy p r o b l e m , then the norms of evaluation internal to those practices become the authoritative practices to apply to that society's p o l i t i c a l system. A t that point we can plausibly c l a i m that those norms of evaluation are immune f r o m the j u r i s d i c t i o n a l challenges of r i v a l theories precisely because it is those norms that everyone has an o b l i g a t i o n to support. The special merit of filling out b o x 4 rather than box 3 in figure 2 is that the actual ac-

they reflect the strategy of

ceptance of certain practices—when they are accepted and evalu-

f o u n d i n g legitimacy o n a voluntary, self-reflective, collective u n -

ated i n the required w a y — t r u m p s jurisdictional challenges f r o m

derstanding. They are the collective conditions for a p o l i t i c a l c u l -

the unending variety of claims f r o m hypothetical thought experi-

These conditions are all dialogic:

ture to freely impose its authoritative practices on itself. Essential

ments. W h e n those practices survive the rigorous conditions we

benefits define the m i n i m u m conditions for full membership i n

w i l l define, they can presume to settle the basic questions about

the society. Hence, they are necessary for full p a r t i c i p a t i o n i n

the p o l i t i c a l structure of that society—so long as the requisite

the collective dialogue. The exit c o n d i t i o n is necessary i f p a r t i c i -

conditions continue to be maintained.

p a t i o n is to be at least m i n i m a l l y voluntary. The

self-reflective

It is not m y p o s i t i o n that actual practices always override or

126

Hie legitimacy Problem

A S e l f - M l e s f i v e Satiety

m

crump the claims of philosophers a t t e m p t i n g to prescribe f r o m

W o u l d a self-reflective p o l i t i c a l culture require that everyone

outside the consensus. But we can distinguish between forms o f

in i t be self-reflective or self-critical i n some significant sense? M y

consensus that are suspect,

argument does not require anything approaching such a Utopian

o n the one hand, and those that have

a justified c l a i m to reasonableness and acceptability, on the other.

aspiration. Effective voice could be given to interests across every

T h e conditions proposed here are meant to clarify the latter pos-

significant cleavage w i t h o u t every individual choosing to exercise

s i b i l i t y . W h e n a consensus is suspect, there are good grounds for

his or her self-reflective capacities. The f o r m a t i o n of public o p i n -

p h i l o s o p h i c a l r e f o r m . But w h e n i t is b o t h reasonable and accept-

ion is a complex process i n v o l v i n g many levels and interactions

able, then it defines the appropriate grounds for evaluating the

among c o m p e t i n g elites. I t has been usefully described as a "cas-

regime.

cade" w i t h many levels or pools that develop independently, but

O f course, w i t h i n such a consensus there is always c o n t i n u i n g r o o m for p h i l o s o p h i c a l , m o r a l , legal, and political c r i t i c i s m of the most vigorous sort. I n fact, a c o n t i n u i n g openness

that also flow d o w n f r o m one to another, and sometimes bubble up as w e l l . '

to such

W h a t we require for our argument is that the c o n t i n u i n g p o l i t i -

c r i t i c i s m w i l l t u r n out to be a c o n d i t i o n for our being confident

cal dialogue decisively influence the character of the overall con-

that a consensus should not be placed in the suspect category.

sensus over the long t e r m . O f course, this w o u l d happen were

A justifiable consensus does not preclude further debate because

everyone to pay attention all the time. But it could also happen

it is always appropriate to advocate a new consensus—one that

just as effectively if o p i n i o n leaders influential at each level pay at-

if generally accepted, satisfy the same conditions as d i d

tention t o , and participate i n , the dialogue. If those w h o are atten-

would,

the previous one.

tive to the o n g o i n g self-reflective political culture are strategically

N o t e that f o r any i n d i v i d u a l , this position leaves open many

placed in the f o r m a t i o n of the consensus, then the consensus could

a p p r o p r i a t e possibilities for m o r a l conflict. First, we have left

easily be the p r o d u c t of the self-reflective political culture over the

open the question of the strength of the o b l i g a t i o n to support the

long t e r m — e v e n if many citizens choose, for some p e r i o d , not to

p o l i t i c a l practices of the legitimate state. Everyone is obligated to

participate actively.

s u p p o r t t h e m , but in particular cases, individuals or groups may w e l l have c o n f l i c t i n g obligations that are o v e r r i d i n g .

A related p o i n t w h i c h prevents the theory's requirements f r o m becoming Utopian is that whatever consensus is achieved need be

Yet, it m i g h t be asked, w h y does the theory say n o t h i n g about

only p r o c e d u r a l . It may be a consensus merely specifying agree-

the sources of these other possible obligations? The theory of

ment on h o w to disagree—but also h o w , given those disagree-

legitimacy p u t f o r w a r d here does not presume to settle every

ments, each side must be given an appropriate hearing to resolve

m o r a l question. L i k e most contemporary liberal theory, it remains

disputes. There is no need for substantive agreement o n pub-

agnostic about ultimate m o r a l and metaphysical questions outside

lic policy or p o l i t i c a l philosophy. A purely procedural consensus

of its chosen sphere (the p o l i t i c a l m o r a l i t y of the state)." Flence,

w o u l d satisfy the demands of the argument. There is no need,

there w o u l d remain many bases for m o r a l conflicts, sometimes

in other w o r d s , that we settle the substantive issues c o n f r o n t i n g

o v e r r i d i n g ones, i n the other m o r a ! claims left entirely open by

systematic theories that we confronted in the first t w o parts of

whatever consensus happened to satisfy all of our conditions, i n

this b o o k .

a d d i t i o n , there is plenty of r o o m for disagreement and m o r a l con-

If the ideal of a self-reflective society is fulfilled, there is a cleat-

flict in the advocacy of a change i n the consensus, even i f i t is

basis for satisfying all four of our criteria for an acceptable theory.

achieved.

First, given the d e m a n d i n g character of our proposed conditions,

128

l e g i t i r j i s s y mû

A S e l f - R e f l e c t i v e Society

Obligation

129

w h e n taken together, it should be clear that c r i t e r i o n I is satisfied.

The basic idea is to take the self-purging aspirations of liberal -

T h e prescriptions of this theory are neither vacuous nor anarchic.

ism not merely to the environments that citizens m i g h t imagine,

They distinguish among most possible states so as to select a dis-

but home to the environments i n w h i c h they actually live. The

tinctive outcome. The conditions are demanding, but if a state sat-

appropriate decision procedure is not in some imaginary place; it

isfied t h e m , the result w o u l d not be anarchism, but a state w h i c h

i an ongoing society that is t r u l y free and self-determining in the

s i m p l y maintained some demanding requirements for freedom of

core components of its p o l i t i c a l culture.

s

p o l i t i c a l culture. Furthermore, such a state should satisfy the i n d i v i d u a l l y b i n d i n g requirement (criterion 2). M y argument is that social practices determine obligations for each member under the

3.3 Legitimacy

and

Obligation

proposed conditions. Even those w h o dissent must satisfy the o b l i -

The ideal of a self-reflective society offers an account of h o w

gations of membership so long as the various conditions a p p l y —

social practices could produce universal obligations to support

so l o n g as they receive essential benefits, so long as exit is u n i m -

the state under favorable conditions. The argument is l i m i t e d to

peded, and so long as the practices are self-reflective and w i d e l y

ideal t h e o r y — t o conditions where its demanding requirements

s u p p o r t e d . N o t e further h o w the o b l i g a t i o n resulting f r o m bene-

could be f u l f i l l e d . However, it is w o r t h n o t i n g that the range of

fits under these conditions satisfies w h a t I referred to earlier as the p a r t i c u l a r i t y requirement: it is an o b l i g a t i o n w h i c h the m e m ber has to the particular state in question. It is not an o b l i g a t i o n w h i c h m i g h t h o l d , equally, between that citizen and other similar states. It is n o t , for example, an o b l i g a t i o n to u p h o l d just states i n general. Rather, it is an o b l i g a t i o n between that member and her state because it is that state w h i c h has supplied the benefits.

conditions under w h i c h we c o m m o n l y t h i n k social practices can produce obligations is far broader than the special conditions of ideal theory. I n those cases as w e l l , it is plausible to t h i n k of social practices as r e q u i r i n g a c o m b i n a t i o n of subjective and objective conditions i n order for t h e m justifiably to determine obligations. In this sense, the tack we have taken here should not be surprising. Consider the practice of promise-keeping. If I were to Find

In a d d i t i o n , the ideal of a self-reflective society satisfies the

mvself i n a society or culture in w h i c h the practice of promise-

j u r i s d i c t i o n p r o b l e m because it requires adherence to an actual,

keeping was u n k n o w n , others w o u l d not understand w h a t I was

o n g o i n g consensus. This consensus is authoritative, first, because

requesting were I to ask them to make, or abide by, a promise.

it is w i d e l y shared and, second, because i t has survived the rigors

Even if I explained the practice to them, unless it was w i d e l y ac-

of self-scrutiny required by a self-reflective political culture. There

cepted, it w o u l d be hard to h o l d members of that culture to any

is a p r e s u m p t i o n i n favor of actual c o m m i t m e n t s , provided they

apparent obligations they m i g h t seem to incur. Even if the practice

are not delegitimated by charges of m a n i p u l a t i o n or i n d o c t r i n a -

was k n o w n , if i t was not w i d e l y accepted—-if, for example, i t was

tion.

generally understood that promises were made to be b r o k e n —

East, the ideal of a self-reflective society satisfies the n o n i n d o c -

then to h o l d someone to his or her explicit u n d e r t a k i n g w o u l d

t r i n a t i o n c r i t e r i o n precisely because its p o l i t i c a l practices are self-

simply be to misunderstand the relevant practice. For the practice

reflective. People are not indoctrinated to accept those practices.

of promise-keeping justifiably to produce obligations, the practice

Rather, they are exposed to c o n t i n u i n g , unmanipulated debate

must, among other things, have widespread acceptance.

about t h e m . A n y shared understandings that survive such ques-

But developmental conditions also l i m i t the a p p l i c a t i o n of a

t i o n i n g take o n the character of a c o n t i n u i n g , rational consensus.

given practice. Consider sat't, w h i c h was once widespread i n I n d i a :

130

& $eif-8eileerive

131

legitimacy and Obligation

Society

' o r cleavage. We are, of course, t a l k i n g about s u p p o r t , not for

the practice of w i d o w s v i e w i n g themselves as m o r a l l y required

m a

to sacrifice themselves on the b u r n i n g funeral pyres of their hus-

A r t i c u l a r policies but for the defining political practices of the

bands.' Sati persisted for centuries before being widely questioned.

society, for the general rules of the game, not the details of any

W o m e n were indoctrinated to believe that their sacrifice was nec-

particular play.

essary. N o matter h o w widely accepted sati may have been, the 2

fact that it lacked any c l a i m to being self-reflective

^

W i d e acceptance is not, by itself, sufficient to produce o b l i g a -

undermines

tions. A u t h o r i t a r i a n regimes that manage to achieve broad sup-

any c l a i m to legitimacy that m i g h t be mounted for it w i t h i n our

p o r t for their p o l i t i c a l practices do not thereby produce o b l i g a -

f r a m e w o r k . A similar p o i n t might be made even if women explic-

tions on the part of their citizens. For the claims of my argument

1

itly p r o m i s e d in the marriage ceremony that they w o u l d immolate

to be triggered, several other conditions w o u l d also have to apply.

themselves if their husbands were to die first. In the context of

The political practices w o u l d have to be self-reflective by insti-

such developmental conditions, promise-keeping w o u l d provide

tuting rather demanding requirements for freedom of p o l i t i c a l

o n l y an equally suspect basis for such obligations.

culture; essential benefits w o u l d have to be p r o v i d e d universally;

W h i l e it is not surprising to t h i n k of practices as p r o d u c i n g

exit w o u l d have to be unimpeded. Absent these other c o n d i t i o n s ,

o b l i g a t i o n s , i t is equally unsurprising to require a c o m b i n a t i o n

a consensus means n o t h i n g w i t h i n our f r a m e w o r k . Hence, the

of subjective and objective conditions in order for those obliga-

fact that Gorbachev claimed, i n his first s u m m i t w i t h Reagan, the

tions to be justifiable. The obvious subjective c o n d i t i o n is whether

same support f r o m his people that Reagan had f r o m his, w o u l d

the practice actually has widespread acceptance. The obvious ob-

not (if the c l a i m were true) yield any conclusion that the Soviet

jective c o n d i t i o n is whether that acceptance is suspect because

U n i o n had solved the legitimacy problem in my sense. W i t h i n the

o f i n d o c t r i n a t i o n problems. M y proposal that a practice be self-

g r o u n d rules of ideal theory, the U.S. has not achieved a f u l l solu-

reflective is, obviously, an attempt to respond to the latter issue.

t i o n , either. But many of the principles we subscribe to are a k i n

The ideal of a self-reflective society requires a consensus o n its d e f i n i n g p o l i t i c a l practices. By '"consensus" I mean that there

to principles that could provide the basis for a full s o l u t i o n .

5

M y claim is that the conditions of the self-reflective society

must be b r o a d support across all the major cleavages i n the soci-

are, jointly, sufficient

ety. By a cleavage,

lem. In other w o r d s , if the p o l i t i c a l practices of a society f u l f i l l

I mean a p o l a r i z a t i o n among self-identified

groups. Race, class, gender, and ethnicity are dimensions

for a f u l l solution to the legitimacy p r o b -

that

them for all members, then all members are obligated to s u p p o r t

c o m m o n l y define such cleavages. There may, of course, be differ-

those political practices. T h e n , if a system lives up to the norms of

ences that d o not define major cleavages. Eye color, for example,

evaluation internal to those practices, it has solved the legitimacy

docs not define self-identified groups that have perceived r i v a l -

problem in our sense.

ries w i t h other self-identified groups. Blue-eyed people do not

To take a simple example, imagine a political system that em-

c o m m o n l y v i e w themselves as members of the g r o u p of blue-eyed

ployed the familiar institutions of Western constitutional democ-

persons whose interests are i n c o m p e t i t i o n w i t h members of, say,

racy so as to satisfy our conditions. Liberty of p o l i t i c a l culture

the b r o w n - e y e d g r o u p . But members of a given race, class, o r

w o u l d have to be encouraged in a rather demanding way to satisfy

gender c o m m o n l y do t h i n k of themselves i n this way. i f they d o ,

the self-reflective c o n d i t i o n . Various scenarios for the universal

then a consensus, in my sense, w i l l require that there be substan-

provision of essential benefits m i g h t be devised. For the m o m e n t ,

tial s u p p o r t f o r the p o l i t i c a l practices i n question across any such

let us assume that this is accomplished t h r o u g h a well-developed

4

132

133

Legitimacy and Obligation

A S e H - U e f i e s t i v e Society

welfare state apparatus. E x i t is unimpeded and the political sys-

n o r m that is self-delegitimating. It claims to count the votes i n

tem, despite significant dissent, continues to enjoy broad support.

.-j fair and objective way, and then it w i l l announce either true

The p o l i t i c a l practices defining the state w o u l d then produce u n i -

or false results, depending o n w h i c h necessary for an outcome

versal obligations for all members receiving the essential benefits.

chosen i n an entirely different way. We could reasonably expect

Because everyone w o u l d then be obligated to support those prac-

such practices to lose their support when their true character is

tices, the state, i f it c o n f o r m e d to them, w o u l d be legitimate. W h a t

k n o w n — a s w o u l d be required i n a self-reflective p o l i t i c a l culture.

we have been calling a full s o l u t i o n to the legitimacy p r o b l e m

The example also raises the question of h o w varied w i l l be

w o u l d have been achieved because all the members w o u l d be o b l i -

the range of practices that satisfy our c o n d i t i o n i n various social

gated to s u p p o r t the p o l i t i c a l system as i t was then constituted.

contexts. Practices that are not self-delegitimating and that do

M o r e specifically, if the p o l i t i c a l practices in this constitutional

survive self-reflective questioning may differ quite a l o t i n other

democracy included elections, then there w o u l d be certain norms

respects. The difference between p r o p o r t i o n a l representation and

of evaluation attached to the conduct of those elections. It w o u l d

majority rule i n single-member districts, for example, is not one

not be enough for the regime to claim that it c o n f o r m e d to the ac-

that w o u l d be settled by any of the criteria developed here. If

cepted practices. For example, if i t had secretly stolen the election

either system became the accepted practice in a state that f u l -

and the election system continued to enjoy broad support (in p a r t

filled all of our conditions, then the norms of evaluation internal

because no one realized i t } , then a f u l l solution to the legitimacy

to that set of election practices w o u l d be the appropriate ones

p r o b l e m w o u l d n o t have been achieved because the regime w o u l d

to apply i n that p o l i t i c a l system. A similar p o i n t m i g h t be made

fail to c o n f o r m to the norms of evaluation internal to the practices

about bicameral versus unicameral legislatures and, more broadly,

that w o u l d , indeed, have legitimacy i n that society—the

about American-style presidential systems versus European-style

practices

of the election system the public w o u l d t h i n k it is e m p l o y i n g . Suppose, however, that voter fraud was well k n o w n to be c o m -

parliamentary systems. W i t h i n the position developed here, many questions must be

m o n . I am assuming that where stealing elections is a w e l l - k n o w n

settled contextually:

practice, it is not publicly accepted as a justifiable

practice. Inter-

ongoing practices. I t is an illusion of systematic theory to t h i n k

nal to the norms of evaluation that constitute election practices,

that an entire b l u e p r i n t of the just society can be created f r o m

at least in p a r t , are norms c o n d e m n i n g the stealing of elections.

scratch, regardless of social context and regardless of the social

But w e m i g h t imagine another practice w h i c h was more or less

they must be settled w i t h i n the confines of

norms w i d e l y shared in the society.

like the elections we are familiar w i t h , but in w h i c h it was p u b -

I n considering the difference between p r o p o r t i o n a l represen-

licly acknowledged that the r u l i n g elites w o u l d steal the election

tation and single-member districts, I mentioned cases of relatively

whenever, i n their great w i s d o m , they considered i t to be in the

familiar democratic practice. Suppose, however, 1 had mentioned

national interest. To distinguish this practice f r o m elections as w e

political practices

k n o w t h e m , let us call this the practice of Stealelections.

practices

outside our familiar democratic

consensus,

i n v o l v i n g the systematic exclusion of some racial or

C o u l d Stealelections m a i n t a i n itself as one of the practices of a

ethnic group t h r o u g h d i s c r i m i n a t i o n or " w h i t e supremacy."'' As

legitimate state i n my sense? It is most unlikely that such a prac-

an empirical matter, such practices are unlikely to satisfy our

tice c o u l d w i t h s t a n d the glare of publicity, dissent, and c r i t i c i s m

consensus c o n d i t i o n ( w h i c h w o u l d require a preponderance

required i n a self-reflective p o l i t i c a l culture. Stealelections has a

support f r o m those excluded as well as f r o m those included).

of

134

legitimacy and Obligation

ft S e t f - U e i l e c t i v e Society

But suppose that through a successful apparatus of a consensus throughout the repression

repression,

the society were maintained. Obviously^

necessary to maintain such a consensus w o u l d

background

conditions—social

135

practices that w o u l d p e r m i t the

ideal to be fulfilled, These background conditions w i l l occupy us in section

3.5.

violate the demanding requirements of liberty for a self-reflective

O f course, racially d i s c r i m i n a t o r y systems are also likely to fail

p o l i t i c a l culture. Acts of repression often break a consensus be-

our c o n d i t i o n of p r o v i d i n g "essential benefits" to all members.

cause they become issues in themselves. Regardless of whether

Under realistic conditions, such systems can be expected to deny

they have this a d d i t i o n a l effect, they w o u l d count, as we shall see, as crucial violations of one of our conditions.

w h a t A d a m Smith called " t h e necessaries" to many members of the subordinate g r o u p . Smith's discussion offers a starting p o i n t

Suppose, however, that the subordinate g r o u p , for reasons

for c l a r i f y i n g w h a t we mean by "essential benefits." Flis proposal,

deeply buried i n its history and distinctive culture, remains q u i -

however, does not go far enough for our purposes. In a classic

escent, w i t h o u t the d o m i n a n t group having to exercise any overt

discussion, Smith explained:

acts of repression.

For example, the great masses of legal ex-

Untouchables i n India are said to live in "psychological cages" that f o r a long time stifled effective expression of their interests. As we w i l l see later, for a p o l i t i c a l culture to be

7

"self-reflective"

it must give unimpeded and effective voice to the interests across every significant cleavage in the society. W h e n voices are f o r c i b l y silenced t h r o u g h familiar forms of repression, i t is obvious h o w this c o n d i t i o n is violated. But when the p r o b l e m is simply that a subordinate group has developed a distinctive culture of s i l e n c e so that it refuses to voice its interests—then

can a consensus of

racial and/or ethnic s u b o r d i n a t i o n m a i n t a i n itself w i t h o u t violating our conditions?

By necessaries I understand, not only the commodities which are indispensably necessary for the support of life, but whatever the custom of the country renders it indecent for creditable people, even of the lowest order, to be without. A linen shirt, for example is, strictly speaking, not a necessary of life. The Greeks and Romans lived, I suppose, very comfortably, though they had no linen. But in the present times, through the greater part of Furope, a creditable day-labourer would be ashamed to appear in public without a linen shirt. Smith went o n to make the same p o i n t about leather shoes in his own time.

8

M a r x also included social and moral elements i n his n o t i o n of

W h i t e supremacy, or any similar practice of racial or ethnic

the subsistence needs of the w o r k e r : " T h e number and extent of

s u b o r d i n a t i o n fas in a caste system), w i l l , i n itself, constitute a

his so-called necessary requirements, as also the manner i n w h i c h

barrier to f u l f i l l i n g the ideal of a self-reflective society. For such

they are satisfied, are themselves products of history, and depend

practices r o b members of a relevant group (a group across one o f the society's significant cleavages) of the ability to get an effective hearing for their interests. The fact that the practice m i g h t conceivably be so successful that it robs the subordinate group of any desire to voice its interests is only an indication of h o w d r a m a t i c a l l y our conditions are violated. I he remedies for such a situation are not obvious. The state

therefore to a great extent on the level of c i v i l i z a t i o n attained by a c o u n t r y ; i n particular they depend on the conditions in w h i c h , and consequently o n the habits and expectations w i t h w h i c h , the class of free w o r k e r s has been f o r m e d . " " These t w o famous discussions suggest that it is reasonable to include relativistic elements in a definition of essential benefits. B o t h Smith and M a r x also grant that there is an obvious objective

cannot simply command people to give voice to their interests.

element, as w e l l : that there are m i n i m u m physical

H o w e v e r , the difficulty can be dealt w i t h , indirectly, by specifying

for s u r v i v a l . However, as in the other components of our argu-

requirements

legitimacy and Obligation

merit, w e w i l l also specify an objective developmental

condition.

For the account of essential benefits to satisfy o u r argument, i t w i l l have to be the one that is b o t h seif-reftective and w i d e l y shared, i n a self-reflective p o l i t i c a l culture, a l l the significant p o l i t i c a l practices w i l l be the subject of c o n t i n u i n g , unmanipulated debate. O b v i o u s l y , the essential benefits p r o v i d e d for every member w i l l count as one o f the society's significant p o l i t i c a l practices. Hence, the character o f those benefits must be part of the l e g i t i m a t i n g consensus and i t must be open to c o n t i n u i n g debate and c r i t i c i s m . Even so, w e cannot mean by "essential benefits" exactly w h a t S m i t h meant by the "necessaries"—even w h e n we a d d the requirements t h a t the conventional element be b o t h self-reflective and consensual. O r , i f we were to l i m i t the account i n that way, it w o u l d be subject to disturbing objections. Recall Smith's form u l a : " w h a t e v e r the custom of the c o u n t r y renders i t indecent for creditable people, even o f the lowest order, to be w i t h o u t . " T h e examples o f racial o r ethnic s u b o r d i n a t i o n already m e n t i o n e d make i t obvious that the disparities between " o r d e r s " of people may be so great that t o require only w h a t is necessary f o r decent members o f the lowest order may be t o o little for o u r purposes. If the lowest order is the lowest i n a caste system or a system of racial d o m i n a t i o n , its essentials may be so meager that receiving such benefits w o u l d n o t serve o u r argument. For one t h i n g , mere receipt o f such benefits w o u l d n o t plausibly produce obligations. M o s t i m p o r t a n t , a g r o u p maintained i n such s u b o r d i n a t i o n w o u l d be subjected to a c o n t i n u i n g , coercive structure of d o m i n a t i o n — a k i n d o f d o m i n a t i o n that w o u l d effectively shut them out of the p o l i t i c a l dialogue. As w e shall see i n o u r discussion of the backg r o u n d c o n d i t i o n s f o r a self-reflective p o l i t i c a l c u l t u r e , i f a g r o u p is m a i n t a i n e d m such conditions, one of the central requiements of the argument has been v i o l a t e d . Consider this description of the Untouchables: In earlier times Untouchables over many parts of India could noc enter streets and lanes used by caste Hindus. If they did, they had to carry brooms to brush away their footprints in the dirt behmd them. I n

137

other places, Untouchables could not contaminate the earth with their spittle, but had to carry a box around their necks to keep pure the ground reserved tor the spittle of caste Hindus. In still other parts ot India an Untouchable had to shout warnings before entering a street so that the purer rolk could get out of the way of his contaminating shadow. 10

O f course, we have already specified the requirement that the account o f essential benefits be b o t h self-reflective and consensual. The caste system appears to have been w i d e l y accepted for l o n g p e r i o d s . I t is, however, d o u b t f u l that the consensus o n these 11

practices c o u l d have survived our self-reflective c o n d i t i o n . H o w ever, suppose f o r a moment that I am mistaken i n this e m p i r i c a l speculation. Imagine that the members of a subordinate g r o u p — w h e t h e r I n d i a n Untouchables, blacks i n an apartheid system, or w o m e n i n an extreme patriarchal society—accept

the practices

w h i c h keep t h e m i n their places, even w h e n those practices are subject to c o n t i n u i n g c r i t i c i s m i n a self-reflective p o l i t i c a l culture. I n the argument we are developing, receipt of essential benefits w i l l constitute a basis f o r o b l i g a t i o n . Is i t plausible to regard such meager benefits as p r o d u c i n g an o b l i g a t i o n to support such an objectionable system? Smith's f o r m u l a r e q u i r e d , roughly, whatever was necessary to be a " c r e d i t a b l e " member of the lowest order. O u r p r o b l e m is that the gap between orders may be so great that creditable m e m bers of the lowest order may lack the self-esteem and m u t u a l respect necessary for p a r t i c i p a t i o n i n a self-reflective p o l i t i c a l cult u r e — w h e r e they have to voice their interests to members of other orders. Hence, I w i l l amend Smith's f o r m u l a to require the social conditions f o r w h a t I w i l l call " f u l l m e m b e r s h i p " i n a selfreflective society, even f o r persons o f the lowest order. I w i l l interpret the social conditions f o r f u l l membership as i n c l u d i n g w h a t is necessary f o r equal consideration of one's claims or interests i n the p u b l i c dialogue i n such a culture. By equal consideration, I d o n o t mean t h a t your claims are considered by an equal n u m b e r of people or t h a t they are given an equal amount of television t i m e . I

138

legitimacy and Obligation

A S e l f - R e f l e c t i v e Society

mean o n l y that they are treated as deserving equal consideration

139

esteem. L e t us call this g r o u p the Unappreciated. N o t e t h a t i f the

o n their m e r i t s ; they are not discounted because of the identities

Unappreciated are c l a i m i n g t h a t they should get diamonds and

of the people involved (either i n v o i c i n g the claim or i n a p p l y i n g

B M W s as "essential benefits " then those benefits w o u l d have to

i t ) , i t is p u b l i c l y accepted—by b o t h speakers and listeners—that

be p r o v i d e d to everyone. W o u l d they be w i l l i n g to pay their share

such claims deserve the same serious hearing given to the interests

of such an enormous public expenditure? C o u l d such a proposal

o f other groups. T h e social conditions for f u l l membership thus

ever achieve the required consensus?

entail b o t h self-esteem and m u t u a l respect, i n that sense, they i n -

Clearly, w e can expect the answer to b o t h questions to be nega-

clude n o t o n l y Smith's "necessaries" but a d d i t i o n a l requirements

tive, i n a d d i t i o n , l u x u r y goods are not plausible candidates for

as w e l l .

essential benefits i n our sense because those benefits are defined

1 2

Clearly, the Untouchables described above were denied those

w i t h reference t o members o f the lowest order. They specify w h a t

c o n d i t i o n s . T h e y w o u l d not voice their interests, nor w o u l d they

w o u l d be necessary f o r members of the lowest order to achieve f u l l

be listened to i f they t r i e d . They lacked the social prerequisites for

membership i n a self-reflective political culture. U p p e r - m i d d l e -

enough self-esteem even to c l a i m equal consideration i n the public

class people feeling deprived w i t h o u t further l u x u r y goods are not

dialogue. Systems of racial or ethnic s u b o r d i n a t i o n , i f their prac-

members of the lowest order. B u t suppose they c l a i m to be. T h e y

tices are consensual, r o b the subordinate group of the self-esteem

present us w i t h eloquent testimony of h o w oppressed they feel.

necessary f o r f u l l membership. O f course* i f their practices are n o t

T o give such a c l a i m plausibility, w e can specify that they w o u l d

consensual, such systems have no c l a i m to legitimacy w i t h i n m y

have to be w i l l i n g to trade places w i t h members o f the g r o u p

f r a m e w o r k . B u t i f they are consensual, even w i t h i n the s u b o r d i -

generally recognized to be the lowest o r d e r — p e r h a p s the ghetto

nate g r o u p , then their failure is i n the provision o f the essential

underclass. T h e Unappreciated d o n o t plausibly define a lowest

benefit of f u l l membership to a l l .

o r d e r and therefore, pose no counterargument to o u r account of

By specifying "social conditions for f u l l m e m b e r s h i p " I mean

essential benefits.

necessary f o r self-esteem and m u t u a l

B u t w h y focus o n a lowest order? As in Smith's account, w e

respect. T h e r e w i l l always be members i n a given g r o u p w i t h spe-

are t r y i n g to specify w h a t is t r u l y essential f o r a k i n d o f cred-

cial psychologies o r idiosyncrasies that, despite every advantage,

itable membership in the society. Because the essentials m u s t be

deprive t h e m of self-esteem. Rodney Dangerfield may achieve

p r o v i d e d to everyone, the focus must be on a m i n i m u m account

t o r e q u i r e w h a t is generally

enormous success and still lack self-esteem. I n d e t e r m i n i n g w h e -

that serves the purposes o f the argument. O t h e r w i s e , the entire

ther his receipt o f the benefits o f f u l l membership produces any

scheme w o u l d be patently impractical. N o t e that i f , for some rea-

o b l i g a t i o n s o n his p a r t , we need only consider the social c o n d i -

son, there were n o significant inequalities i n the society, then any

tions t h a t generally

produce self-esteem and m u t u a l respect, If

order o r g r o u p c o u l d be picked at r a n d o m . But every k n o w n de-

o b l i g a t i o n s f o l l o w f r o m the receipt of benefits, my position w i l l

veloped society, capitalist or socialist, has substantial inequalities,

be that the vagaries o f his psychology d o not relieve h i m of those

as these m i g h t be judged along any plausible dimension proposed

obligations.

as an answer t o o u r o r i g i n a l p r o b l e m of value (income and w e a l t h ,

Suppose, however, that the Rodney Dangerfields of this w o r l d

prestige, rights and liberties, p r i m a r y goods, and so o n ) . Hence,

organize, c l a i m i n g t h a t if they are n o t p r o v i d e d w i t h further l u x -

we can assume that there w i l l be inequalities along significant

u r y goods at p u b l i c expense, t h e n they w i l l continue to lack self-

dimensions and the t h e o r y must be designed to deal w i t h t h a t fact.

Legitimacy and Obligation

141

The general outlines of our strategy should n o w be clear. If a

h o l d the practices. T h e Hart/Rawls principle of fairness w o u l d

p o l i t i c a l system provides essential benefits—the social conditions

attribute obligations to individuals under the special conditions

f o r f u l l m e m b e r s h i p — t o all members, then all members acquire

covered by my proposal, but i t w o u l d also d o so under a far w i d e r

an o b l i g a t i o n to s u p p o r t the system (provided that i t also meets

range o f c o n d i t i o n s . These other cases are N o z i c k ' s target i n his

our other conditions). I f all members are obligated to support a

provocative assault o n the p r i n c i p l e . N o z i c k ' s argument is w o r t h

given p o l i t i c a l system, then its practices have become authorita-

discussing i n o r d e r to c l a r i f y the differences:

tive i n that society. T o the extent that the system lives up to its o w n a u t h o r i t a t i v e practices, it then achieves a f u l l s o l u t i o n to the legitimacy p r o b l e m . Clearly, a crucial move i n the argument is the inference that f r o m the receipt of essential benefits under these conditions, one can acquire an o b l i g a t i o n . This issue has been a notable subject of debate and deserves extended discussion. Readers f a m i l i a r w i t h H . L . A . H a r t ' s argument f r o m fairness w i l l find n o t h i n g surprising in the n o t i o n that one can acquire an o b l i g a t i o n t h r o u g h the receipt of benefits. H a r t proposed: ' ' W h e n a n u m b e r of persons conduct any j o i n t enterprise according to rules and thus restrict their l i b e r t y , those w h o have submitted to these restrictions w h e n required have a r i g h t to a similar submission f r o m those w h o have benefited by their s u b m i s s i o n . "

0

The

r i g h t o f those s u b m i t t i n g to the rules yields a correlative d u t y o f the others t o obey, and this d u t y should be enforceable by public

Suppose some of the people in your neighborhood (there are 364 other adults) have found a public address system and decide to institute a system of public entertainment. They post a list of names, one for each day, yours among them. On his assigned day (one can easily switch days) a person is to run the public address system, play records over it, give news bulletins, tell amusing stories he has heard, and so on. After 138 days on which each person has done his part, your day arrives. Are you obligated to take your turn? You have benefited from it, occasionally opening your window to listen, enjoying some music or chuckling at someone's funny story. The other people have put themselves out. But must vou answer the call when it is your turn to do so? As it stands, surely not. Though you benefit from the arrangement, you may know all along that 364 days of entertainment supplied by others w i l l not be worth your giving up one day. You would rather not have any of it and not give up a day than have it all and spend one of your days at i t . ! 6

officials according to rules. Rawls later proposed a similar p r i n c i p l e , calling It the " p r i n -

N o z i c k continues this line of argument w i t h other examples:

ciple of f a i r p l a y , " b u t added the proviso that the scheme o f social

" I f each day a different person o n your street sweeps the entire

c o o p e r a t i o n had to be " j u s t . " I n that w a y he left the o b l i g a t i o n

street, must y o u d o so w h e n your time comes?" O r i f you d o n ' t ,

t o u p h o l d such schemes dependent o n a more general theory o f

then should y o u " i m a g i n e d i r t as y o u traverse the street, so as

justice.

n o t to benefit as a free r i d e r ? " H e also asks us to imagine a b o o k

14

T h e p r i n c i p l e o f fair play understood i n the H a r t / R a w l s sense

thruster, someone w h o tosses books i n t o yards and then demands

is far m o r e general i n its a p p l i c a t i o n than our proposal. T h e

payment f o r t h e m . These examples p r o m p t his general conclusion

ideal o f a self-reflective society requires that the benefits p r o -

that the p r i n c i p l e o f fairness is mistaken: " O n e cannot, whatever

v i d e d be essential, that exit be u n i m p e d e d , that the practices be

one's purposes, just act so as to give people benefits a n d then

self-reflective, and t h a t a consensus about t h e m be maintained. -

demand (or seize) p a y m e n t . "

1

1

i T

O n l y w h e n a l l o f these conditions apply am I c l a i m i n g that the

N o z i c k ' s attack, w h i l e c o m p e l l i n g o n its chosen g r o u n d , is

i n d i v i d u a l s receiving the essential benefits incur obligations to u p -

overly b r o a d i f i t is extended to our argument. These examples

147

Legitimacy a n d Obligation

A S e l f - R e f l e c t i v e Society

¡43

dramatize the d i f f i c u l t y of ascribing obligations w h e n one or more

defines. The debate about the practice has been self-reflective, but

o f o u r conditions are absent. But they do not establish that o b l i -

the consensus about its appropriateness or legitimacy survives,

gations never f o l l o w f r o m the receipt of benefits,

nevertheless.

,!f

N o t e that our conditions w o u l d not determine obligations for

I n this case, i t seems c o m p e l l i n g to conclude t h a t members w h o

any o f N o z i c k ' s cases. N o t only are the practices i n question not

receive these crucial benefits are obligated, so long as they stay,

selt-retlective, but the benefits p r o v i d e d are not essential. These

to live up to the p u b l i c l y accepted obligations of membership.

practices offer entertainment or other m i n o r benefits, rather than

The alternative w o u l d be to c l a i m that they w o u l d be v i o l a t i n g no

p r o t e c t i o n o f some recognized, crucial interest. M y c l a i m is only

m o r a l requirements were they to choose to be free-riders. If the

that w h e n a l l four o f my proposed conditions are satisfied, i t

benefits p r o v i d e d were frivolous or t r i v i a l , then members c o u l d ,

is plausible t o a t t r i b u t e obligations to all those w h o receive the

in general, do w i t h o u t t h e m . B u t if the benefits are a m o n g the

essential benefits. N o z i c k wishes to rebut the c l a i m that obliga-

essential conditions of f u l l m e m b e r s h i p — a n d this conclusion is

tions result f r o m the receipt o f benefits under a far broader range

supported by a self-reflective consensus—then o b t a i n i n g those

o f c o n d i t i o n s — c o n d i t i o n s that d o not affect my proposal one way

benefits for each member is a matter of the most urgent p r i o r i t y . In this case, the benefit i n question is survival, b o t h i n d i v i d u a l and

or another. T o see the contrast posed by m y proposal, consider this varia-

collective. I f there are social practices that provide f o r y o u r sur-

t i o n o n N o z i c k ' s example suggested by one of m y students w h o

vival t h r o u g h other members l i v i n g up to their acknowledged o b l i -

h a d recently returned f r o m the M i d d l e East. '' Suppose you are i n

gations (the obligations that are consensually and self-reflectively

an isolated settlement under constant threat o f attack. There are

accepted as the obligations of membership}, does it n o t seem

3 6 4 other adults. Each person is expected, f o r one day, to man an

plausible t o a t t r i b u t e a similar o b l i g a t i o n to y o u — s o l o n g as you

early w a r n i n g system to sound the alarm m case of real danger.

continue, w i t h the unimpeded o p t i o n of e x i t , to be I n the p o s i t i o n

A f t e r 138 days o n w h i c h other persons have done their part, your

of receiving the crucial benefits?

1

day arrives. A r e y o u obligated to take your turn?

Practices that f u l f i l l o u r conditions have the unique m e r i t of

Let us suppose f u r t h e r that the settlement meets our other con-

being collectively self-imposed i n a rational manner. T h e practices

d i t i o n s . Its practices are se If-re Élective. They are subject to con-

that survive se If-reflective scrutiny w i t h a consensus of support

t i n u i n g , u n m a n i p u l a t e d critical e x a m i n a t i o n . This is i m p o r t a n t ,

are collectively self-imposed i n the sense that they have the requi-

because i f there were really no need f o r the early w a r n i n g sys-

site acceptance, and they are rational i n the sense that they are

t e m , o u r e v a l u a t i o n m i g h t be quite different. If the enemies were

self-reflective.

entirely f i c t i o n a l or hallucinatory, then the case f o r each member

N o t e that, u n l i k e some other efforts to reconstruct the fairness

being obligated w o u l d vanish. A l s o , let us assume that exit is u n -

argument, o u r conditions do not require that the practices provide

i m p e d e d . I t y o u d o n ' t w a n t to man the system, you d o n ' t have to

net benefits to each member (when compared w i t h the costs of

stay. T h e settlement has not made y o u a prisoner to its scheme o f

membership). R i c h a r d Arneson, f o r example, has proposed such

collective benefits. But i f y o u d o stay, y o u must either contribute

a requirement.

w h a t is expected o f members or become a free-rider. A n d , in keep-

proviso w o u l d l i m i t , u n d u l y , the range o f permissible practices.

i n g w i t h one o f o u r remaining conditions, let us assume that there

For example, suppose t h a t a fully developed welfare state were to

is a consensus on this practice and the o b l i g a t i o n for members it

meet all of o u r provisions. Furthermore, suppose that to support

20

If our other conditions are all satisfied, such a

144

L i b e r t y of P o l i t i c a l C u l t u r e

A S e l f - R e f l e c t i v e Society

145

the p r o v i s i o n of essential benefits to all members, i t t u r n e d out

but is part of the actual o n g o i n g lives of people i n the system.

t h a t the r i c h had to be taxed i n such a way that i t was plausible

O n my p r o p o s a l , this refinement mechanism consists i n certain

to conclude that they p a i d m o r e than the essential benefits they

demanding conditions for liberty of p o l i t i c a l culture.

received. They c o u l d survive nicely w i t h o u t welfare, f o o d stamps,

W h a t f o r m w o u l d liberty of p o l i t i c a l culture have t o take in

o r subsidized medical care. Even l a w and order m i g h t be p r o v i d e d

order to avoid i n d o c t r i n a t i o n problems? First, note that our con-

f o r t h e m o n competitive terms by private security forces. It m i g h t

cern is w i t h l i b e r t y of political

w e l l be the case t h a t their net costs of membership outweighed

include l i b e r t y of p o l i t i c a l expression, belief, and

their net benefits. Still, I w o u l d argue that if such a welfare state

" P o l i t i c a l " i n this d e f i n i t i o n of p o l i t i c a l culture should be inter-

satisfied ail o f our other conditions, i t w o u l d then define the set

preted broadly to include:

o f p o l i t i c a l practices that were collectively self-imposed i n a selfc r i t i c a l manner. W e a l t h y members w o u l d then be obligated t o pay taxes at the levels decided by the legitimate p o l i t i c a l institutions even i f i t c o u l d be argued that, f o r t h e m , the burdens of m e m bership o u t w e i g h e d the benefits. O f course, the wealthy have a b u i l t - i n source o f p r o t e c t i o n i n our scheme i n t h a t , to m a i n t a i n ail of our legitimacy conditions, there must be c o n t i n u i n g supp o r t f o r the system, o n balance, across all the significant cleavages o f the society. T h e cleavage between r i c h and poor w o u l d surely be such a significant cleavage, and i f the tax rates become t o o burdensome, the requisite consensus o n the overall p o l i t i c a l sys-

culture. Under this heading I association.

1

1 . evaluations o f actual public policies and proposed alternatives; 2. evaluations of issues that one believes o u g h t t o be taken up by public p o l i c y ; 3. evaluations of any possible alternative forms o f governmental o r g a n i z a t i o n ; 4. n o r m a t i v e bases f o r any of the above i n other realms of conscientious belief (such as r e l i g i o n ) ; 5. factual findings (historical o r t u r r e n t ) sincerely beiieved to be crucial t o any of the above.

t e m c o u l d disappear. Despite this l i m i t a t i o n , the possibility f o r

I n this k i n d o f liberal state, members w o u l d be free to openly

significant r e d i s t r i b u t i o n remains—a

debate government policy, to advocate alternative policies or, i n -

possibility that Arneson's

m o r e restrictive proviso w o u l d rule out entirely.

21

deed, alternative f o r m s o f government; they w o u l d also be free to j o i n together i n groups for these purposes w i t h o u t fear of perse-

3 . 4 Liberty

of Political

Culture

cution o r reprisal. L i b e r t y of p o l i t i c a l culture i n this sense defines the least controversial and essential core o f libera! theory. A t the 2

T h e ideal o f a self-reflective society is proposed here as a w a y

outset, I have given this core a quite m i n i m a l i n t e r p r e t a t i o n . As we

o f f i l l i n g o u t b o x 4 i n figure 2. It is meant to give substance t o the

proceed, i w i l l argue that t a k i n g these liberties seriously is more

n o t i o n o f a refined-actual decision s i t u a t i o n . O u r previous objec-

demanding t h a n at first appears.

tions a p p l i e d to boxes 1-3, the brute-actual, b r u t e - h y p o t h e t i c a l ,

We have already seen some of the reasons w h y the basis f o r

a n d refined-hypothetical alternatives. M y strategy is to propose a

this p r i n c i p l e is, at present, problematic. The most ambitious re-

p a r t i c u l a r w a y of filling out this r e m a i n i n g category that aspires

cent argument e x p l i c i t l y s u p p o r t i n g l i b e r t y — R a w l s ' s

to satisfy our f o u r criteria for an acceptable theory.

f o r its " p r i o r i t y " — r e q u i r e s a particular controversial theory of

argument

T o fit i n b o x 4 , a theory has to specify a refinement mecha-

the g o o d , one that is n o t sustainable by his o w n assumptions

n i s m f o r preference development that is n o t merely imaginary,

about the restrictions o n choice i n the o r i g i n a l p o s i t i o n . As we

Liberty of Political Culture

A S e r f - R e f l e c t i v e Society

146

saw earlier, i f the t h i n theory of the g o o d İs really t h i n , i t cannot

147

that w i e l d significant p o w e r i n the society (such as corporations,

s u p p o r t such strong conclusions. B u t i f thicker theories are admis­

unions, and even universities) under the authoritative p r o t e c t i o n

sible, t h e n the d o o r has been opened to a variety of controversial,

of the state (hence, the M a f i a , even i f p o w e r f u l , w o u l d n o t nor­

substantive theories, no one o f w h i c h , by itself, can be relied o n

m a l l y be one of the society's regulative institutions i n this sense).

to p r o v i d e a firm basis f o r significant substantive principles. Scan-

W h a t d o I mean by " u n m a n i p u l a t e d dialogue"? D i a l o g u e is

ion's argument f o r freedom of expression was s i m i l a r l y based o n

reasoned debate designed to persuade o n grounds conscientiously

a p a r t i c u l a r controversial ideal of i n d i v i d u a l development (au­

believed by the participants to be valid and appropriate. For an act

t o n o m y ) , one that he later abandoned f o r a balancing-of-İnterests

o f expression to contribute to p o l i t i c a l dialogue, its crucial nor­

approach.-' Isaiah Berlin's fallibilist argument f o r liberty requires,

mative and e m p i r i c a l premises must (a) be held w i t h c o n v i c t i o n

f o r its defense, an explanation o f w h y our evaluation o f l i b e r t y is

by the actors and (b) be sufficiently exposed or open to analysis

n o t equally fallible itself.

that they can be c r i t i c a l l y examined and debated by others. To

4

M o s t i m p o r t a n t . M i l l ' s theory is susceptible to v a r y i n g inter­

merely defer to the judgment of Wise M a n X does n o t contribute

pretations, each e x e m p l i f y i n g one of the approaches just m e n ­

to p o l i t i c a l dialogue, but rather forecloses i t . O n the other hand,

t i o n e d . " I n d i v i d u a l i t y " İs a particular, controversial ideal o f h u ­

to argue t h a t W i s e M a n X should be deferred to may be a c o n t r i ­

m a n development, as is the " a u t o n o m y " that some commentators

b u t i o n i f its u n d e r l y i n g premises are exposed f o r debate and held

have f o u n d at the r o o t of M i l l ' s p o s i t i o n . O r is M i l l ' s ultimate

w i t h conviction.

5

p r i n c i p l e u t i l i t a r i a n i s m , İn w h i c h case the basis f o r l i b e r t y w o u l d

C o n t r i b u t i o n s to p o l i t i c a l dialogue are not l i m i t e d to discur­

seem t o be rendered insecure by the balancing of interests re­

sive prose. Conscientious

q u i r e d f o r consequentîalist calculations? O r , i f the argument for

effectively i n a r t , poetry, drama, and fictional w o r k s of various

l i b e r t y is the f a l l i b i l i s t one, as some passages suggest, w h y is i t not

sorts. I n fact, such w o r k s may have a far greater effect o n their

self-referential?

audiences t h a n conventional p o l i t i c a l debate. M a r k 1 w a i n ' s jour­

6

T h e issue can also be brought f u l l circle. I f the argument for

p o l i t i c a l views can also be expressed

nalistic w r i t i n g s about racism were either censored o r i g n o r e d , but

l i b e r t y is that i t serves t r u t h , there is no reason offered for liberal

his novel Huckleberry

states t o value t r u t h except that t r u t h , i n t u r n , serves u t i l i t y . H o w ­

m o r e p r o f o u n d l y . Similarly, John Dos Passos's journalistic w o r k

ever, this connection is n o t o n l y dubious İn i m p o r t a n t cases, but i t

o n the Sacco and Vanzetti case had little impact compared t o that

aiso presupposes a p r i o r c o m m i t m e n t to u t i l i t a r i a n i s m — w h i c h ,

of his novel U.S.A.

especially i n M i l l ' s " İ d e a l " version, is an eminently avoidable u l t i ­

Vanzetti c o u l d n o t have received a fair t r i a l ) . I n these cases and

mate c o m m i t m e n t f o r liberal theorists.

countless others, a w o r k o f i m a g i n a t i o n can embody and express

7

M y strategy w i l l be to recast the p r o b l e m i n terms of a selfreflective p o l i t i c a l culture: one that is significantly a result of unmanipulated

dialogue.

self-critical

as

A p o l i t i c a l culture is " s i g n i f i ­

Finn employed i r o n y to attack racism far

(a far more searching argument that Sacco and 8

a p o l i t i c a l argument as f u l l y developed as any we m i g h t see i n con­ ventional debate, but f o r m u l a t e d so as to have a greater i m p a c t o n the reader,

9

cantly s e l f - c r i t i c a l " w h e n the social practices defining its regu­

I n the sphere of culture, this argument o n l y provides clear p r o ­

lative i n s t i t u t i o n s are consistently subjected to widespread and

tection f o r literature and art that is f o r m u l a t e d so as to contribute

conscientious c r i t i c i s m . By "regulative i n s t i t u t i o n s , " I mean the

to p o l i t i c a l dialogue (in the b r o a d sense of " p o l i t i c a l " defined

state (its components and representatives) and other institutions

earlier). T h i s is, of course, a m a j o r l i m i t a t i o n . However, this essay

148

A Serf-Reflective Society

secular-liberal

one k n o w s (or has g o o d reason to believe) that they are false, do

theory for f r e e d o m of p o l i t i c a l culture, i t remains an open ques-

not fail w i t h i n this argument, i t is an open question at this p o i n t

t i o n h o w the state should treat other creations of culture that have

whether o r n o t the state m i g h t impose penalties ( t h r o u g h , for ex-

n o plausible p o l i t i c a l dimensions. However, because o f the poten-

ample, the libel laws) to discourage such acts of expression—so

is designed to develop a distinctive basis w i t h i n

t i a l f o r abuse b u i l t i n t o any f o r m of censorship, once the case

long as they clearly fall outside the area o f protection for consci-

for f r e e d o m of political

culture is granted, a basic p r e s u m p t i o n

entious p o l i t i c a l v i e w s . ' Furthermore, by "conscientious v i e w s " 1

against other uses of censorship or p r i o r restraint should f o l l o w .

mean those f o r m u l a t e d so that they contribute (or w o u l d c o n t r i b -

We s h o u l d be skeptical of any i n s t i t u t i o n a l arrangements t h a t

ute i f expressed) t o p o l i t i c a l dialogue.

1

w o u l d p e r m i t government officials to determine whether w o r k s of

W h a t does i t mean t o say penalties are imposed "because of

art or literature contain the redeeming social content characteris-

the content (actual o r prescribed) of one's conscientious p o l i t i -

tic o f p o l i t i c a l dialogue.

cal views"? Í mean ''actual or prescribed" f r o m the perspective

H o w e v e r , i t is undeniably the case that some i n f e r i o r w o r k s

of the state o r o f any other manipulator (as the m a n i p u l a t o r at-

basis for p r o -

tempts t o determine w h a t one's actual views are o r o u g h t to be).

t e c t i o n w i t h i n this argument, w h i l e some other w o r k s o f " g r e a t "

So i f the state (or some other m a n i p u l a t o r ) concludes t h a t my

w h i c h are clearly p o l i t i c a l w i l l have a fundamental

literature w i l l n o t . M a n y aesthetic criteria have n o t h i n g to do w i t h

views are objectionable and subjects me to penalties as a result,

p o l i t i c a l culture, even w h e n this n o t i o n is interpreted broadly. I

I have suffered f r o m explicit m a n i p u l a t i o n — e v e n i f its conclu-

acknowledge this l i m i t a t i o n . M y a m b i t i o n here is to clarify a basis

sions about w h a t m y views happen to be should t u r n o u t to be

for the core of l i b e r t y ; other issues, undoubtedly i m p o r t a n t , w i l l

incorrect. T h e attempt at m a n i p u l a t i o n is not removed f r o m the

have to a w a i t other efforts, perhaps e m p l o y i n g different strategies.

objectionable category merely because the state is incompetent i n

R e t u r n i n g t o the central argument, w h a t do we mean by "•tin-

d e t e r m i n i n g the true character of m y beliefs. Similarly, I include

m a n i p u l a t e d " dialogue? I w i l l approach this issue by defining t w o

" p r e s c r i b e d " views w i t h i n " e x p l i c i t m a n i p u l a t i o n " because there

f o r m s of strong

structural.

are cases where the state (or some other m a n i p u l a t o r ) m i g h t be

Political dialogue w i l l be considered " u n r n a n i p u l a t e d " w h e n i t is

satisfied i f i t succeeded i n f o r c i n g insincere expressions of one's

n o t strongly manipulated i n either the e x p l i c i t o r the structural

apparently conscientious p o l i t i c a l views (regardless o f any f u r t h e r

sense. T h e idea is t h a t dialogue should not be subjected t o s t r o n g

investigations i n t o one's real views). If I face punishment unless

manipulation,

one explicit,

the other

m a n i p u l a t i o n w i t h i n the broad area of '•political" culture defined

I mislead others about m y real views, then the expression of my

earlier.

p o l i t i c a l views has also been subjected t o e x p l i c i t m a n i p u l a t i o n .

By e x p l i c i t m a n i p u l a t i o n , I mean the i m p o s i t i o n o f penalties be-

Whether or n o t the state succeeds i n altering the real character of

cause o f the content (actual or prescribed) of one's conscientious

my conscientious beliefs, i f i t succeeds i n f o r c i n g me to misrepre-

p o l i t i c a l views, whether held privately o r expressed p u b l i c l y (and

sent t h e m , i t has distorted the character of public debate available

w h e t h e r the f o r m o f expression, o r the manner of h o l d i n g the be-

to us a l l .

Í a m focusing o n

By the " i m p o s i t i o n " of penalties, I mean that penalties are

attempts to manipulate "conscientious p o l i t i c a l v i e w s " because i t

b r o u g h t about (or are credibly threatened) i n v o l u n t a r i l y and/or

is one's conscientious views o n public matters w h i c h contribute to

coerciveiy. They are b r o u g h t about against one's w i l l and, i f neces-

p o l i t i c a l dialogue. M a l i c i o u s statements, offered v o l u n t a r i l y w h e n

sary, t h r o u g h the use of force. By "penalties," I mean consequences

lief, be i n d i v i d u a l or i n association w i t h others).

111

ISO

A S e l f - R e f l e c t i v e Society

clearly and significantly adverse to one's interests as these can he determined w i t h respect t o the status quo to w h i c h one is entitled according to the relevant legitimate practices. Practices can be considered legitimate either because they satisfy all the conditions o f our argument o r because they are held to be legitimate, i n t u r n , by i n s t i t u t i o n s o r practices that d o satisfy our conditions. So, for example, the practices d e t e r m i n i n g relevant entitlements m i g h t be specified by the p o l i t i c a l system, and that system, i n t u r n , m i g h t be legitimated by o u r argument; or the relevant entitlements m i g h t be legitimated by the market and the market m i g h t be legitimated by the p o l i t i c a l system. Legitimate social practices define norms o f evaluation f o r act i o n i n p a r t i c u l a r cases, according to w h i c h some factors are relevant and others are irrelevant, i f one's conscientious views (includi n g one's views about one's o w n actions) are considered irrelevant t o the d e t e r m i n a t i o n o f outcomes according to a legitimate social practice, then the benchmark for d e t e r m i n i n g penalties or d a m ages to one's interests should also consider t h e m irrelevant. Let us begin w i t h a simple case of explicit m a n i p u l a t i o n . I f i a m jailed because of the content o f m y p o l i t i c a l opinions (or f o r associating w i t h others w h o h o l d similar opinions), then 1 have clearly been subjected to the k i n d of explicit m a n i p u l a t i o n that is unacceptable according to this argument. However, the issue o f d e t e r m i n i n g the appropriate status quo needs to be considered before we can k n o w w h a t counts as a " p e n a l t y . " T o take a t r i v i a l example, i f I express myself badly i n a debate tournament and for t h a t reason d o n o t w i n , I am worse off, but not worse off than I a m e n t i t l e d t o be (under the familiar practices defining w h a t we mean by a debate tournament}. N o t w i n n i n g the debate tournam e n t (or a prize o r a fellowship) because o f the w a y I express myself (orally o r i n w r i t i n g ) is not a " p e n a l t y " i f i t makes me no worse o f f than I a m entitled to be (as determined by the relevant legitimate practices). H o w e v e r , If I were really entitled to w i n but

L i b e r t y of P o l i t i c a l C u l t u r e

151

an unacceptable penalty resulting f r o m p o l i t i c a l discrimination.'•¬ O f course, i n particular, idiosyncratic cases, these factual issues are v i r t u a l l y impossible to investigate. This does n o t , however, undermine the general p r i n c i p l e . If content-related penalties are imposed o n conscientious opinions w i t h i n the realm of p o l i t i c a l culture, then that realm has been explicitly m a n i p u l a t e d . I specified earlier that if one's conscientious views are considered irrelevant to the determination of outcomes according t o a legitimate social practice, then the benchmark f o r d e t e r m i n i n g harms should also consider them irrelevant. Consider a Jewish merchant i n a largely Christian c o m m u n i t y faced w i t h an organized e f f o r t , directed at his particular business, for citizens to patronize o n l y " C h r i s t i a n " businesses. W h i l e we n o r m a l l y believe people can shop where they like, the practices defining market relations d o n o t regard private convictions o n religious or p o l i t i cal matters as relevant to d e t e r m i n i n g one's market entitlements o r one's o p p o r t u n i t i e s to compete i n the market. The merchant's business is m o r a l l y entitled t o equal consideration i n the marketplace regardless o f his private, conscientious views. I f the e f f o r t is sufficiently w e l l organized that his business suffers substantially as a result, then his conscientious views have been subjected to the penalties of e x p l i c i t m a n i p u l a t i o n . But this result should not 15

be surprising. O n the argument proposed here, a l l conscientious views i n the b r o a d sphere of p o l i t i c a l culture are protected f r o m e x p l i c i t m a n i p u l a t i o n . The only question arises i n d e t e r m i n i n g w h a t counts as a penalty. If we accept the interpretation of market entitlements suggested by these examples, then people and i n s t i t u t i o n s , i n c l u d i n g corporations, are entitled to equal consideration in the m a r k e t regardless of private convictions (of the i n d i v i d u a l s involved) w h i c h are irrelevant to their roles i n the market, i f t h a t is the case, t h e n b o y c o t t i n g t h e m f o r those private convictions must count as e x p l i c i t m a n i p u l a t i o n , regardless of h o w objectionable those convictions may be.

d i d n o t because o f a personal h i s t o r y of p o l i t i c a l views irrelevant

O f course, o n l y an organized e f f o r t w i t h an e x p l i c i t target c o u l d

t o the debate, then I w o u l d have been exposed, i n v o l u n t a r i l y , to

be expected to have the significant effects w e are a t t r i b u t i n g to

Liberty of Political Culture

A Self-Reflective Satiety

152

153

of the general benefits ( w h a t -

It is not all f o r m s of speech per se that we propose to protect

ever these m i g h t be presumed to be) of having only '"Christians"

under the banner of l i b e r t y of political culture. Rather, i t is con-

as merchants w o u l d not count as explicit m a n i p u l a t i o n . W h e n

t r i b u t i o n s — a c t u a l or p o t e n t i a l — t o p o l i t i c a l dialogue. Freedom

m a r k e t boycotts. M e r e advocacy

f o r m u l a t e d as a c o n t r i b u t i o n to p o l i t i c a l dialogue, such advo-

of p o l i t i c a l culture protects conscientious views and sincere, rea-

cacy w o u l d , m fact, be protected by liberty of political culture.

soned efforts to persuade others about them so long as they fall

By contrast, the organized e f f o r t to punish the Jewish merchant

w i t h i n the sphere of the " p o l i t i c a l " defined earlier,

f o r his private religious a f f i l i a t i o n w o u l d not have this p r o t e c t i o n

tects individuals j o i n i n g together to express themselves—to add

(because i t w o u l d itself constitute e x p l i c i t m a n i p u l a t i o n ) , despite

voices to the p o l i t i c a l dialogue that m i g h t never get a hearing i f

the fact t h a t speech w o u l d inevitably be a part of the behavior

expressed by isolated individuals. But j o i n i n g together to c o n t r i b -

necessary to carry o u t such boycotts.

ute to p o l i t i c a l d i a l o g u e — t o reasoned, conscientious debate on

15

I t also p r o -

N o t e t h a t this discussion applies to boycotts directed against

matters o f p u b l i c p o l i c y — i s quite different f r o m j o i n i n g together

i n d i v i d u a l s because o f their private convictions. T h e idea is that

to impose penalties o n identifiable individuals or groups merely

the practices defining the market entitle merchants to equal con-

because o f their conscientious views. 1'he freedom of the latter

sideration i n the market regardless of their religious convictions.

to remain free o f e x p l i c i t m a n i p u l a t i o n can be maintained w i t h -

O n the other hand, those practices w o u l d not entitle corporations

out i n f r i n g i n g o n the freedom of the former to engage in p o l i t i c a l

(or i n d i v i d u a l s ) t o equal consideration regardless of their

dialogue.

activities

If people object to an i n d i v i d u a l ' s or a corpora-

B l a c k m a i l , larceny, and bank robbery d o not fall under the u m -

tion's market activities, a boycott does not violate our c r i t e r i a .

brella o f p r o t e c t i o n for l i b e r t y o f p o l i t i c a l culture, even though

M a r k e t activities, as opposed to private religious convictions, are

they may a l l require acts o f c o m m u n i c a t i o n . However, to say that

n o t irrelevant to market activities. Hence, the Nestlé boycott was

various speech acts fall outside the area of required p r o t e c t i o n

sparked by the health effects o f that firm's m a r k e t i n g strategy tor

leaves it an open question whether the state should employ legal

i n f a n t f o r m u l a . O n this analysis, a f i r m is not entitled to equal

penalties ( c r i m i n a l or c i v i l ) to discourage them. [ d o not propose

consideration of its products i n the m a r k e t , regardless of its mar-

to develop a general theory of legal coercion and the c r i m i n a l law.

ket activities. A boycott that d i d n o t violate any other rights w o u l d

M y argument i n this essay is l i m i t e d to the question of defining

be entirely compatible w i t h our f r a m e w o r k .

the sphere w i t h i n w h i c h a self-reflective p o l i t i c a l culture m i g h t

in the market.

T h e l i m i t s o f e x p l i c i t m a n i p u l a t i o n are far f r o m obvious. For

flourish.

example, the mere fact of speech, even w h e n p o l i t i c a l l y relevant,

One f u r t h e r c o m p l e x i t y should be noted. I defined " e x p l i c i t

does n o t b r i n g behavior w i t h i n the realm of freedom of p o l i t i c a l

m a n i p u l a t i o n " as a p p l y i n g t o the i m p o s i t i o n of penalties f o r the

culture as defined here. As Kent Greenawalt notes: " B l a c k m a i l ,

content of one's conscientious p o l i t i c a l views " w h e t h e r the f o r m

e x t o r t i o n , and c r i m i n a l coercion . . . usually involve communica-

of expression or the manner of h o l d i n g the belief be i n d i v i d u a l

t i o n . C o m m u n i c a t i o n is a necessary or an almost inevitable ele-

or m association w i t h others." Thus far, we have focused p r i -

ment . . . i n p e r j u r y , i n larceny that depends o n t r i c k or f r a u d , and

marily o n isolated i n d i v i d u a l s . But the freedom to associate can

i n s o l i c i t a t i o n ; and i t usually plays a part i n armed robbery. Pun-

be equally i m p o r t a n t . First, groups and institutions can have an

ishment f o r these activities has not been thought to raise serious

impact o n public debate far greater than w o u l d be possible for

c o n s t i t u t i o n a l difficulties. Yet, if a n y t h i n g constitutes speech, i t is

most isolated i n d i v i d u a l s . If such voluntarily organized, collective

e x p l i c i t verbal and w r i t t e n c o m m u n i c a t i o n s . "

efforts were p r o h i b i t e d , some voices w o u l d be effectively silenced.

14

154

Second, the freedom to associate is crucial for the transmission o f

155

L i b e r t y of P o l i t i c a l C u l t u r e

A S e l f - R e f l e c t i v e Society

T h r o u g h o u t h u m a n history, states have engaged i n e x p l i c i t ma-

conscientious views over t i m e — p a r t i c u l a r l y f r o m one generation

n i p u l a t i o n . One o f the earliest systematic

to the next. W i t h o u t i t , there are some forms of e x p l i c i t m a n i p u -

C h i n a , f r o m a h i s t o r i a n w r i t i n g t w o m i l l e n n i a ago about the first

l a t i o n w h i c h may he resisted successfully by isolated i n d i v i d u a l s

edict of the Q u i n ( C h ' i n ) emperor i n the t h i r d century B . C . :

in the short t e r m , but w h i c h may w i n out over the long t e r m . I n the f o r m e r Soviet U n i o n , religious sects such as the Pentecostahsts suffered greatly f r o m the fact that their c h i l d r e n were effectively taken away f r o m t h e m .

16

Even if individuals resist repression o f

their conscientious beliefs i n their o w n lifetimes, i f the values for w h i c h they stand cannot be passed o n , groups e m b o d y i n g those values i n their ways of life may die o u t . I n that way, e x p l i c i t man i p u l a t i o n can have drastic effects over the long t e r m w h e n i t is directed at v o l u n t a r y efforts at association w i t h l i k e - m i n d e d persons to produce and influence the socialization o f the n e x t generation. F o r this reason, i interpret freedom of association to include the f r e e d o m to v o l u n t a r i l y f o r m and m a i n t a i n families and t o have substantial influence over the socialization o f o f f s p r i n g i n

cases comes to us f r o m

Ail books in the imperial archives except for the records of Quin should be burned; all persons under heaven, except learned scholars in the Academy, in possession of the B O O K O F O D E S , the B O O K O F H I S T O R Y and essays of the hundred schools of philosophers should take them to the magistrates and be burned; those who dare to talk to each other about the B O O K O F O D E S and the B O O K O F H I S T O R Y should he executed and their bodies exposed m the market; those who refer to the past to criticize the present should be, w i t h members of their families, put to death; officials who knowingly failed to report are guilty of the same crime; after thirty days from, time of issuing the decree, those who have not destroyed their books are to be branded and sent to build city walls; books not to be destroyed are those on medicine, pharmacy, divination, agriculture and horticulture; those who want to study edicts should be taught by officials. 18

those families. T h i s does n o t , of course, make the families i m -

T h e Q u i n dynasty, despite its b r u t a l suppression o f all o p p o s i -

m u n e f r o m a l l forms o f coercive interference. First, w h e n the v o l -

t i o n , lasted o n l y fourteen years. Its most notable m a r k i n h i s t o r y

u n t a r y a n d consensual character of a f a m i l y breaks d o w n , there

was n o t the b u i l d i n g of the Great W a l l , b u t the attempt to erase all

may be grounds f o r interference by the state (or others) to p r o -

history, a l l freedom of t h o u g h t . O u r knowledge o f these distant

tect the rights or interests of some members. I t is the m u t u a l l y

events comes f r o m the great Chinese h i s t o r i a n Ssu-ma C h ' i e n (Si-

v o l u n t a r y f o r m a t i o n and maintenance of families that deserves

M a - Q u i a n ) , w h o was himself castrated f o r c o n t r a d i c t i n g a later

p r o t e c t i o n w i t h i n freedom o f association. Second, I specified o n l y

emperor ( H a n W u - D i ) .

that families have a "substantial influence" over the socialization

I t was surely this k i n d of c o n t r o l over freedom of t h o u g h t that

o f their o f f s p r i n g . W i t h i n this f r a m e w o r k , there is certainly r o o m

led John Stuart M i l l , i n the essay On Liberty,

t o conclude t h a t

f o r states t o intervene w h e n families monopolize the determinants

" w e have a w a r n i n g example i n C h i n a " about the social conse-

o f socialization i n ways that d o serious h a r m to the c h i l d o r t h a t

quences of suppressing intellectual f r e e d o m : " T h e y have become

prevent the c h i l d f r o m being capable of assuming responsibilities

stationary—have remained so for thousands of years . . . .

i n a d u l t society. Hence, the state c o u l d certainly intervene i f a

have succeeded beyond a l l hope . . . i n m a k i n g a people a l l alike,

c h i l d were denied appropriate n u t r i t i o n o r medical care, o r the

all governing their thoughts and conduct by the same m a x i m s and

essential educational prerequisites f o r p a r t i c i p a t i o n i n the p o l i t i c a l

rules; and these are the f r u i t s . "

They

1 9

These l i m i t a t i o n s are modest

E x p l i c i t m a n i p u l a t i o n imposes penalties, n o t o n l y o n particular

e n o u g h , however, to leave w i d e l a t i t u d e f o r families to t r a n s m i t

i n d i v i d u a l s , b u t also, w h e n carried out systematically, o n entire

their conscientious views f r o m one generation to the next.

societies, i n the interests o f m a i n t a i n i n g those i n power, such s o d -

and economic life o f a d u l t society.

17

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A S e l f - R e f l e c t i v e Society

Liberty of Political Culture

eties b l i n d themselves to the possibility of self-improvement or self-reflective re-examination. W i t h i n our f r a m e w o r k , their practices cannot satisfy the conditions f o r solving the legitimacy p r o b lem because any consensus s u p p o r t i n g t h e m must be suspect. A n y such consensus has n o t passed the test of se If-reflective p o l i t i cal dialogue, a test that c o u l d give us confidence i n the k i n d of scrutiny i t has survived. T h u s far, we have focused only on e x p l i c i t m a n i p u l a t i o n . H o w ever, public dialogue can be subjected to strong m a n i p u l a t i o n w i t h o u t any recourse to coercion or penalties. Crucial voices may f a i l t o achieve an effective hearing w i t h o u t i t being necessary f o r any voices t o be silenced. The same result may f o l l o w w i t h o u t anyone being penalized f o r speaking: i f the relevant voices d o not w i s h t o speak, i f they d o n o t have an o p p o r t u n i t y to be heard, o r i f the relevant audiences have learned not to listen. I n these three m a i n ways, effects s i m i l a r to those o f e x p l i c i t m a n i p u l a t i o n may be achieved w i t h o u t any penalties actually being imposed or threatened against anyone w i t h i n the sphere o f p o l i t i c a l c u l ture. I n this sense, a v o i d i n g e x p l i c i t m a n i p u l a t i o n is n o t enough to guarantee meaningful freedom of p o l i t i c a l culture. T o cover these cases, a second f o r m of strong m a n i p u l a t i o n needs t o be specified. Because i t concerns the structure o f c o m m u n i c a t i o n , rather than e x p l i c i t acts of m a n i p u l a t i o n , I w i l l call i t structural

manipulation.

I n some ways i t may seem mislead-

ing to call i t m a n i p u l a t i o n at a l l , since i t may w e l l occur w i t h o u t a n y b o d y consciously p l a y i n g the role o f manipulator. B u t just as some situations may be structured i n a coercive manner w i t h o u t a n y b o d y consciously p l a y i n g the role of coercer, " some situations 2

m a y be structured i n a manner that has the effect of m a n i p u l a t i o n , w i t h o u t anyone consciously p l a y i n g the role of m a n i p u l a t o r . W i t h this t e r m i n o l o g i c a l caveat i n m i n d , we can define structural manipulation. T h e basic idea is t h a t effective across every significant

voice must be given to

interests

cleavage in the society. W h e n this effective

voice is denied, then the p o l i t i c a l dialogue has been subjected to

157

structural m a n i p u l a t i o n . A n effective voice is one that is w i d e l y disseminated and t h a t people are prepared t o , and capable of, substantially evaluating o n its merits (rather than merely o n the basis of the source).

21

T h e difficulty, o f course, is t h a t i t is n o t clear, at

least at first glance, h o w such an effective voice can be guaranteed. N o t e , first, that whatever the difficulties of i m p l e m e n t a t i o n , the c r i t e r i o n at least gives us a n o t i o n o f w h a t voices are crucial to the dialogue's being self-reflective rather than suspect. Second, the strategy f o r achieving a self-reflective p o l i t i c a l culture w i l l often be indirect.

I t w i l l focus o n altering background conditions for

the development o f practices and preferences. I t need n o t be the direct result of p o l i c y choice. Clearly, i n this case, structural man i p u l a t i o n w i l l only be avoided w h e n the background conditions are adjusted, i n an o n g o i n g society, so that a culture of patory

civility

partici-

has been achieved. I n such a culture, people w i l l

participate and listen (and be capable of listening) o n the merits. Setting aside, f o r the m o m e n t , the issue o f background c o n d i tions, let us consider the dangers of strong m a n i p u l a t i o n . M a n i p u lated debate i n either of our t w o senses deserves to be distrusted. W h a t confidence can we have i n any p o l i t i c a l p r o p o s i t i o n w h e n critics o f i t have been silenced? O r w h e n crucial interests, reflecting any o f the m a i n cleavages i n the society, have been shut out? Ef there is a consensus, under such conditions o f m a n i p u l a t i o n , it must be suspect. It is suspect because we cannot k n o w h o w it w o u l d generally be evaluated if the challenging voices had not been suppressed. W h e n crucial interests or contrary voices are suppressed, the c l a i m o f p o l i t i c a l institutions to make rational demands u p o n us has been c o m p r o m i s e d . It is compromised because, w i t h i n our f r a m e w o r k , the c l a i m to r a t i o n a l i t y depends u p o n those i n s t i t u tions and practices being supported by a consensus that

survives

unmanipulated self-scrutiny. We cannot k n o w h o w a consensus w o u l d survive contrary voices i f there are none. We cannot k n o w whether, i f some crucial interest had been given effective voice, s u p p o r t across a m a i n cleavage m i g h t have disappeared. We can-

158

Liberty of Political Culture

A S e l f - R e f l e c t i v e Society

159

n o t k n o w the degree to w h i c h acts of m a n i p u l a t i o n (or the tolera-

•tre arguing t h a t l i b e r t y of political culture is necessary if we are

t i o n o f structural m a n i p u l a t i o n ) are self-serving. T h e capacity of

to have any confidence i n certain particular p o l i t i c a l " t r u t h s , " and

the system (and those acting w i t h i n it) to evaluate itself has been

that h a v i n g confidence i n just those particular p o l i t i c a l " t r u t h s " is

severely i m p a i r e d .

part of the s o l u t i o n to the legitimacy p r o b l e m .

T h e c l a i m o f the p o l i t i c a l practices to survive rational evalua-

As I noted earlier, p o l i t i c a l practices that can justifiably deter-

t i o n is o n l y vindicated w h e n threatening voices and crucial inter-

mine obligations o f all members provide a basis f o r solving the

ests o b t a i n the requisite hearing. A f t e r such a hearing, i f we should

legitimacy p r o b l e m . But members are obligated t o s u p p o r t p o l i t i -

conclude t h a t the contrary arguments are mistaken, or even r i d i c u -

cal practices o n l y if they are of a k i n d that i t is reasonable for

lous, w e are likely to have benefited f r o m t h e m , nonetheless. We

t h e m to accept. I a m t a k i n g the p o s i t i o n here that, at least w i t h i n

w o u l d then get w h a t M i l l called " t h e clearer perception and live-

ideal theory, i t is reasonable t o accept only political practices

lier impression o f t r u t h , produced by its collision w i t h e r r o r . "

that have passed a certain test of r a t i o n a l i t y — o f self-critical re-

2 2

M o s t i m p o r t a n t , i f the dialogue takes place free o f s t r o n g m a -

e x a m i n a t i o n . T h a t test is that the consensus about t h e m must

n i p u l a t i o n , any consensus that survives has a basis f o r m a k i n g a

survive the self-reflective scrutiny of w h a t we have been calling

r a t i o n a l c l a i m u p o n us. Strong m a n i p u l a t i o n w o u l d rob us o f one

unmanipulated debate. Once the debate is m a n i p u l a t e d , then the

of the necessary conditions f o r reasonably having confidence i n

political practices protected by such m a n i p u l a t i o n are suspect i n

those propositions. W h i l e M i l l ' s argument was o n l y f o r m u l a t e d

their r a t i o n a l i t y . If the practices are suspect, then i t is no longer

to deal w i t h w h a t we have called e x p l i c i t m a n i p u l a t i o n , his gen-

reasonable i n the same w a y for us to accept them. As a matter

eral p o i n t is relevant: " T h e r e is the greatest difference between

of expediency, under less-than-ideal conditions, we may w e l l be

p r e s u m i n g an o p i n i o n to be true, because, w i t h every o p p o r t u n i t y

forced t o accept them. But the c l a i m of the system to p r o v i d e a f u l l

f o r contesting i t , i t has n o t been refuted, and assuming its t r u t h

solution t o the legitimacy p r o b l e m w o u l d have been undermined.

f o r the purpose o f n o t p e r m i t t i n g its refutation. Complete l i b e r t y

A c c o r d i n g to the ideal proposed here, a political culture is

o f c o n t r a d i c t i n g and d i s p r o v i n g our o p i n i o n is the very c o n d i t i o n

"self-reflective" w h e n i t provides the collective conditions f o r its

w h i c h justifies us i n assuming its t r u t h f o r purposes o f a c t i o n ;

o w n rational self-evaluation. We should be suspicious of the self-

and o n n o other terms can a being w i t h h u m a n faculties have any

evaluation o f any other f o r m of political culture. The h a n d of the

r a t i o n a l assurance of being r i g h t . "

state is heavy o n most citizens—demanding

2 3

m o r a l deference i n

i w i l l rely o n this basic insight o f M i l l ' s i n the argument f o r

the name of allegiance and p a t r i o t i s m . The latter qualities may

l i b e r t y o f p o l i t i c a l culture. H o w e v e r , by the "complete l i b e r t y o f

be admirable, even i n a self-reflective p o l i t i c a l c u l t u r e — b u t only

c o n t r a d i c t i n g and d i s p r o v i n g our o p i n i o n , " we mean something

w h e n care is taken to separate t h e m f r o m u n t h i n k i n g obedience

more d e m a n d i n g than the liberties of t h o u g h t and discussion de-

and f r o m the surrendering of self-critical capacities. ''

fended i n M i l l ' s essay.

2

A self-reflective

24

p o l i t i c a l culture defines certain

far-reaching

Nevertheless, M i l l ' s insight here is central and far-reaching. I t

conditions o f l i b e r t y , conditions under w h i c h a society's members

p e r m i t s a different slant than the one c o m m o n l y taken o n w h a t

are free f r o m a l l forms o f strong m a n i p u l a t i o n of their consci-

we have been calling the legitimacy p r o b l e m . Instead of arguing

entious p o l i t i c a l views. T h a t this requirement is distinctive can

t h a t l i b e r t y o f t h o u g h t and discussion are instrumental to t r u t h , i n

be seen f r o m c o m p a r i n g i t to the most c o m m o n f o r m u l a t i o n of

general, and that t r u t h , i n general, is instrumental to u t i l i t y ,

liberty o f p o l i t i c a l t h o u g h t and discussion. Consider w h a t m i g h t

25

we

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A S e l f - R e f l e c t i v e Society

161

Liberty of Political Culture

be called a m i n i m a l , or laissez-faire, c o n s t r u c t i o n : no significant

people are i n d o c t r i n a t e d to demand . . . to buy and to vote f o r . . .

coercive interference w i t h the liberty of individuals to express

n o t h i n g other than w h a t a decision-making elite is already dis-

p o l i t i c a l o p i n i o n s , h o l d p o l i t i c a l beliefs, or associate v o l u n t a r i l y

posed to grant t h e m . T h e volitions that are supposed t o guide

together for those same purposes. By " n o significant" coercive

leaders are f o r m e d by the same leaders." The key to w h a t L i n d -

interference, I do n o t mean t o rule out time, place, and manner

b l o m calls " i n d o c t r i n a t i o n " is its " l o p s i d e d " character. It is " n o t

restrictions used sparingly enough so as not to affect the basic

the m u t u a l persuasion of liberal democratic aspiration b u t a l o p -

character o f p o l i t i c a l debate.

sided, sometimes nearly unilateral persuasion by business, govern-

T h e laissez-faire v i e w is a close cousin to the one developed

mental and p o l i t i c a l leadership directed at o r d i n a r y citizens w h o

here. T h e most obvious connection is that coercive interferences

do n o t themselves easily c o m m a n d , as leaders d o , the services of

w i t h p o l i t i c a l expression, belief, or association w i l l count as ex-

p r i n t i n g and b r o a d c a s t i n g . " ' 21

p l i c i t m a n i p u l a t i o n s o f the p o l i t i c a l culture i n the sense defined

There is no need for us here to enter the fierce empirical debate

earlier. Penalties imposed o n people (individually or collectively)

about the extent to w h i c h this k i n d of c i r c u l a r i t y applies to the

for expressing or h o l d i n g certain beliefs w i l l either silence voices

U.S. or to any other m a j o r Western democracy. ' A t the very least,

i n the debate t h r o u g h sheer coercion or silence t h e m t h r o u g h i n -

it is, theoretically, a t r o u b l i n g possibility, one that is clearly c o m -

t i m i d a t i o n and self-censorship (conducted under threat o f coer-

patible w i t h the m i n i m a l , laissez-faire construction of p o l i t i c a l

c i o n ) . T h e requirement that a self-reflective p o l i t i c a l culture f o r g o

liberties. W i t h o u t any resort to coercive interference i n p o l i t i c a l

e x p l i c i t m a n i p u l a t i o n is sufficient, by itself, to yield significant

expression, belief, or association, it is possible for some groups to

liberties.

speak, as i t were, so l o u d l y and so m u c h as to deny an effective

27

O f course, i t is not enough that the state r e f r a i n f r o m acts of coercion intended to silence people. If the state fails to protect

3 1

hearing to contrary voices. Hence,

the negative guarantees embodied i n the m i n i m a l ,

i n d i v i d u a l s o r groups f r o m t h i r d - p a r t y efforts to i n t i m i d a t e or

laissez-faire conception d o n o t , by any means, ensure the c o n d i -

silence p o l i t i c a l expression or the h o l d i n g of certain p o l i t i c a l be-

tions for a self-reflective p o l i t i c a l culture. They do block the coer-

liefs, the same p r o b l e m of e x p l i c i t m a n i p u l a t i o n arises. V i g i l a n t e

cive interference that c o u l d be achieved by e x p l i c i t m a n i p u l a t i o n .

groups may silence u n p o p u l a r views as effectively as may official

However, those guarantees d o n o t h i n g to prevent the other f o r m

a c t i o n . Less obviously, job d i s c r i m i n a t i o n based o n p o l i t i c a l belief

of s t r o n g m a n i p u l a t i o n discussed above: they d o n o t h i n g t o ensure

or p o l i t i c a l expression may have equally devastating effects. I f I

an effective hearing f o r other crucial voices, voices representing

a m threatened w i t h f i r i n g , or i f i am denied the equal consider-

interests across the m a i n cleavages i n the society.

a t i o n i a m entitled to i n the job market because my ideological

Somehow, the possibility of structural m a n i p u l a t i o n has t o be

v i e w s (irrelevant to the job at issue) p r o m p t employment d i s c r i m i -

ruled o u t w i t h o u t the remedy itself t a k i n g the objectionable f o r m

n a t i o n , m y l i b e r t y to express and/or h o l d p o l i t i c a l opinions has

of strong m a n i p u l a t i o n . The k i n d of l i b e r t y guaranteed by the

been interfered w i t h , coercively.

laissez-faire v i e w w o u l d protect i n d i v i d u a l s , groups, o r institu-

28

H o w e v e r , this m i n i m a l , or laissez-faire, construction is clearly

tions acting v o l u n t a r i l y , but i n concert, so as to d r o w n o u t a l l o p -

insufficient to b r i n g about a self-reflective p o l i t i c a l culture. C o n -

posing voices. Instead of e m p l o y i n g the b l u n t t o o l o f coercion to

sider the possibility raised forcefully by C. E. L i n d b l o m t h a t d e m o -

silence voices i n the chorus that w o u l d otherwise predominate, the

cratic systems are vulnerable to " c i r c u l a r i t y " : " I t may be that

state should attempt to create forums and positive incentives for

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L i b e r t y of P o l i t i c a l C u l t u r e

A SeH-Ref l e c t i v e Society

163

p o l i t i c a l d i a l o g u e — p a r t i c u l a r l y for crucial interests that w o u l d

But w h y l i m i t these general interventions to positive incen-

n o t otherwise achieve an effective hearing. I n this sense, a more

tives and other adjustments m background conditions? If a self-

activist l i b e r t y o f p o l i t i c a l culture is required.

reflective p o l i t i c a l culture is so i m p o r t a n t , w h y n o t just threaten

But is n o t intervening actively i n this way itself a f o r m of m a -

or coerce everyone t o participate so as to produce one? There are

n i p u l a t i o n by the state? W h i l e i t m i g h t be labeled m a n i p u l a t i o n by

t w o obvious objections. First, we cannot expect to achieve a f o r m

some, it is n o t a f o r m of strong m a n i p u l a t i o n i n the sense defined

of p o l i t i c a l culture untarnished by strong m a n i p u l a t i o n by threat-

here. N o voices are suppressed, no crucial interests are shut out of

ening people w i t h coercive penalties whose a p p l i c a t i o n , i n many

the dialogue. If the state intervenes to create forums or positive i n -

cases, w i l l constitute strong m a n i p u l a t i o n in the e x p l i c i t sense.

centives f o r the expression o f opposing views, it is not a t t e m p t i n g

Second, our goal is a p o l i t i c a l culture that is self-reflective i n its

to manufacture consensus a r o u n d a preferred conclusion. Rather,

political dialogue. By " d i a l o g u e " I mean the expression of consci-

it is preventing us f r o m a d o p t i n g views prematurely, before there

entious, reasoned debate o n grounds sincerely believed to be valid

has been an a i r i n g of contrasting voices and o f crucial interests.

and appropriate by its participants. As a matter of i n s t i t u t i o n a l

should not be misunderstood. I use i t

design, i t is unrealistic to expect coercion, threats, and i n t i m i d a -

only t o distinguish the activist conception f r o m the merely laissez-

t i o n t o produce m u c h conscientious debate i n this sense. A p a r t

faire, o r m i n i m a l , conception o f liberty o f p o l i t i c a l culture. It does

f r o m some p r i n c i p l e d resistance, this k i n d o f brute interference

T h e t e r m intervention

n o t i m p l y t h a t the government should f o l l o w every debate and

is likely to produce only cynical or self-serving efforts to avoid

intervene directly to balance o u t the dialogue based o n its j u d g -

whatever penalties are feared.

ment o f p r e d o m i n a n t messages about any particular issue. N o t

Let us attempt to f o r m u l a t e , i n greater detail, w h a t is distinc-

o n l y is such a system n o t required; it w o u l d be extremely u n -

tive about the activist conception of liberty of p o l i t i c a l culture.

likely to operate w e l l or to facilitate the goal of a self-reflective

U n l i k e the laissez-faire conception, the activist conception is not

p o l i t i c a l culture. The very fact that public debate was k n o w n to

merely negative. It does not consist entirely i n p r o h i b i t i o n s o n

be under official scrutiny, f o r whatever putative reasons, w o u l d

interferences w i t h the h o l d i n g o r expressing of p o l i t i c a l beliefs for

likely have a c h i l l i n g effect o n the more extreme f o r m s o f dissent

of people associating together f o r either purpose). W h i l e the activ-

o r c r i t i c i s m . As a matter of i n s t i t u t i o n a l design, we should distrust

ist conception gives a major role to such guarantees, sole reliance

efforts by public officials to e x p l i c i t l y manage o r c o n t r o l the con-

o n t h e m w o u l d leave the system vulnerable to " c i r c u l a r i t y , " indoc-

tent o f p o l i t i c a l dialogue. O n any realistic construction, they have

t r i n a t i o n , and patterns by w h i c h the interests o f certain groups

t o o m u c h at stake for their self-interest not to affect the results,

o r institutions p r o m p t t h e m to d r o w n out their o p p o s i t i o n , effec-

covertly if n o t insidiously. T h i s caution should be applied even

tively s h u t t i n g crucial interests out of the c o n t i n u i n g dialogue. For

if their mandate were to free dialogue f r o m all forms of s t r o n g

this reason, I have posited the need f o r incentives, f o r u m s , and

m a n i p u l a t i o n , b o t h e x p l i c i t and s t r u c t u r a l . Rather, the strategy

forms of access f o r p o l i t i c a l dissent if a self-reflective p o l i t i c a l c u l -

should be to create certain general practices i n the operation o f

ture is t o be achieved—if, i n other w o r d s , the p o l i t i c a l culture is

the media and of the public spaces open f o r p o l i t i c a l debate. O v e r

to become significantly self-critical as a result of unmanipulated

the l o n g t e r m , these practices should be designed to facilitate the

debate.

openness o f f o r u m s and positive incentives i n those f o r u m s f o r o p p o s i n g views a n d f o r the representation of crucial interests.

O f course, this goal may strike some people, at the outset, as bizarre. W h y should critics even be p e r m i t t e d , m u c h less encour-

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aged, by official design? A c o m m o n v i e w is that the state can

s t r o n g m a n i p u l a t i o n , then these conscientious criticisms can get

pursue its goals more efficiently i f meddlesome critics are o u t of

aired. If the consensus s u p p o r t i n g the system's p o l i t i c a l practices

the w a y . B u t w i t h o u t c r i t i c s — a n d the self-reflective p o l i t i c a l c u l -

can m a i n t a i n itself i n the face of the resulting self-critical exami-

ture they help create—one must be suspicious of the state's goals

n a t i o n , t h e n that consensus has a reasonable c l a i m to a u t h o r i t y

and o f the processes by w h i c h those goals have been d e t e r m i n e d

over us.

in the first place. O f course, agonized self-reflection is no substitute for a c t i o n .

3.5 The Conditions

B u t the p r e s c r i p t i o n f o r a self-reflective political culture does n o t

of Activist

Liberty

preclude a design f o r p o l i t i c a l institutions p e r m i t t i n g s w i f t a c t i o n

In A n t h o n y Trollope's novel Phineas Finn, the protagonist, w h o

w h e n circumstances require i t . O f necessity, c r i t i c i s m w i l l o f t e n

has spent his p o l i t i c a l career arguing for greater democracy, is put

be retrospective rather than prospective, i n any case, we have said

up as the candidate for L o u g h t o n , a rotten b o r o u g h controlled

very little thus far about the structure of p o l i t i c a l decision m a k i n g .

by the E a r l of B r e n t f o r d . T r o l l o p e describes his first visit to the

T h e self-reflective argument is n o t intended to produce a b l u e p r i n t

borough:

f o r the best l i b e r a l institutions. Rather, i t is meant to single o u t certain distinctive features o f an ideal liberal state—features that w o u l d p e r m i t a f u l l s o l u t i o n to the legitimacy p r o b l e m . Suppose, however, that a l l forms of strong m a n i p u l a t i o n are e l i m i n a t e d but no criticisms o f the system result. Political theorists and social planners finally t h i n k up the perfect system and get i t a d o p t e d . O u r d e f i n i t i o n of a self-reflective p o l i t i c a l culture requires t h a t i t be consistently self-critical t h r o u g h u n m a n i p u l a t e d debate. Suppose that u n m a n i p u l a t e d debate produces no c r i t i cism. A r e we then i n the p o s i t i o n of c l a i m i n g that such a system must be worse precisely because i t is so perfect as to be beyond criticism? W i t h M i l l , I assume that the e m p i r i c a l concomitant of significant freedom o f t h o u g h t is diversity of o p i n i o n o n the f u l l range o f questions t o u c h i n g o n o u r d e f i n i t i o n of the p o l i t i c a l . Hence, perfect agreement t h a t a system was beyond c r i t i c i s m w o u l d i n itself constitute p o w e r f u l evidence that meaningful freedom o f t h o u g h t

Each individual man of Loughton then present took an opportunity during the meeting of whispering into M r . Finn's ear a word or two to show that he also was admitted to the secret councils of the borough,—that he too could see the inside of the arrangement. " O f course we must support the Earl," one said. "Never mind what you hear about a Tory candidate, M r . Finn," whispered a second; "the Earl can do what he pleases here." And it seemed to Phineas that it was thought by them all to be rather a fine thing to be thus held in the hand by an English nobleman. Phineas could not but reflect upon this as he lay in his bed at the Loughton inn. The great political question on which the political world was engrossed up m London was the enfranchisement of Englishmen,—of Englishmen down to the rank of artisans and laborers;—and yet when he found himself in contact w i t h individual Englishmen, with men even very much above the artisan and the labourer, he found that they rather liked being bound hand and foot, and being kept as tools in the political pocket of a rich man. Every one of those Loughton tradesmen was proud of his own personal subjection to the Earl! 1

had n o t been achieved. Hence, w i t h o u t suppression of freedom o f t h o u g h t , we can as-

W h e n Phineas later remarks, " T h e y a l l seemed to be very o b l i g -

sume t h a t there w i l l always be c r i t i c a l voices w h i c h c o u l d be given

i n g , " the earl replies: "Yes they are. There isn't a house i n the

an o p p o r t u n i t y t o contribute to self-reflective dialogue, to the sys-

t o w n , y o u k n o w , let for longer than seven years, and most of them

tem's capacity to examine itself. If we do away w i t h b o t h forms o f

merely f r o m year to year. A n d , do you k n o w , I haven't a farmer o n

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the p r o p e r t y w i t h a lease,—not one; and they d o n ' t w a n t leases.

p o l i t i c a l beliefs to be irrelevant. People have a r i g h t to be treated i n

They k n o w they're safe. But i d o like the people r o u n d me to be

the market i n a manner that is independent of their conscientious

of the same way of t h i n k i n g as myself about p o l i t i c s . " '

beliefs i n the sphere of p o l i t i c a l culture.

T h e a w k w a r d situation i n w h i c h Phineas finds himself is e m -

H o w e v e r , suppose that the right of the earl to dictate politics

blematic of a challenge facing us at this stage i n o u r argument.

in the b o r o u g h was w i d e l y accepted- and, f u r t h e r m o r e , that s i m i -

T r o l l o p e confronts us w i t h a p o l i t i c a l culture distorted by clien-

lar prerogatives o f noblemen were the generally accepted practice

t a l i s m a n d deference. N o m i n a l l y equal liberties arc e m p t i e d of

t h r o u g h o u t the society. W o u l d that legitimate the practice, accord-

any m e a n i n g f u l content by the spillover effects of economic and

i n g to o u r proposal? O r , at least, w o u l d i t not vitiate m y c l a i m

social inequalities. Yet the participants in this drama enjoy, f o r

that the a p p r o p r i a t e benchmark f o r j u d g i n g a penalty was defined

the most part, f o r m a l rights to legal and p o l i t i c a l e q u a l i t y — r i g h t s

by market relations as they w o u l d exist w i t h o u t any reference to

that are clearly insufficient to yield a self-reflective p o l i t i c a l c u l -

politics?

ture i n o u r sense. O u r p r o b l e m is to determine w h a t a d d i t i o n a l

T h e answer to the first question is clearly no. For the ideal

adjustments i n b a c k g r o u n d conditions w o u l d be necessary to ban-

of a self-reflective society to legitimate a given social practice,

ish the specter of the E a r l o f B r e n t w o o d f r o m liberal-democratic

many c o n d i t i o n s i n a d d i t i o n to its being w i d e l y accepted must

institutions.

be satisfied. A m o n g other factors, it should be obvious that our

T h e earl's remarks suggest the beginnings of a response t o

self-reflective c o n d i t i o n w o u l d pose a major obstacle. Even i f such

this challenge. Using an economic threat directed at his tenants'

a practice were w i d e l y accepted, there is no reason t o believe i t

votes w o u l d constitute e x p l i c i t m a n i p u l a t i o n i n our sense, j u s t as

w o u l d m a i n t a i n its legitimacy i n the face of the k i n d o f u n m a n i p u -

the " B u y C h r i s t i a n " boycott against the Jewish merchant i n o u r

lated, c r i t i c a l scrutiny required by our argument.

earlier example employed coercive penalties against conscientious

B u t there is a second reason for believing that such a prac-

religious views, the threat o f eviction i f one docs not vote accord-

t i c e — l e t us call i t p o l i t i c a l c l i e n t a l i s m — c o u l d n o t be legitimated

i n g to the earl's preferences w o u l d constitute a similar i n t r u s i o n

by a self-reflective p o l i t i c a l culture. N o t o n l y is i t n o t likely to be

o f p o l i t i c a l m a n i p u l a t i o n o n t o market relations, i n b o t h cases,

accepted after being subjected to t h o r o u g h g o i n g c r i t i c i s m of the

the status q u o against w h i c h penalties are to be judged s h o u l d

k i n d r e q u i r e d for a self-reflective p o l i t i c a l culture. I t is incompat-

be defined independently o f one's conscientious views. Once the

ible w i t h the k i n d of u n m a n i p u l a t e d , critical dialogue required to

p o w e r o f e x p l i c i t m a n i p u l a t i o n is removed, it is an open question

produce a self-reflective political culture i n the first place.

h o w l o n g the p o l i t i c a l culture o f the borough can be d o m i n a t e d so

T h e i n c o m p a t i b i l i t y stems f r o m the fact that i f clientalism

easily. A number o f other factors i n the design of b a c k g r o u n d c o n -

were established as an accepted practice, i t w o u l d institutionalize

d i t i o n s can be specified that, together, w o u l d encourage diversity

s t r o n g m a n i p u l a t i o n i n our second sense. I t w o u l d freeze out any

and m e a n i n g f u l p a r t i c i p a t i o n . O r , at least, o u r task i n this section

effective voice f o r the interests at stake i n the d i v i s i o n between

is to explore adjustments i n background conditions that, together,

p a t r o n and clients. W i t h such a practice i n place, people w o u l d not

make i t reasonable t o assume that this sort of counterexample

be prepared to speak, and those few w h o w o u l d speak w o u l d find

w o u l d be ruled out.

that their p o t e n t i a l audience had learned not t o listen. I n either

B u t the example also poses a challenge of a second k i n d . M y c o n t e n t i o n that the earl's behavior constitutes e x p l i c i t m a n i p u l a t i o n depends o n an i n t e r p r e t a t i o n of market relations that holds

case, clientalism w o u l d prevent the interests of the subordinate groups f r o m g e t t i n g an effective hearing. Hence, i f clientalism were institutionalized, it m i g h t prevent us

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f r o m classifying its practices as explicit m a n i p u l a t i o n (because the

169

t i c i p a t i o n . By background conditions, I mean the basic social prac-

practices i n question w o u l d no longer regard p o l i t i c a l o p i n i o n s

tices m the society d e t e r m i n i n g the d i s t r i b u t i o n of valued goods

as irrelevant to the d e t e r m i n a t i o n of benchmarks against w h i c h

or characteristics.

changes w o u l d constitute penalties), but those practices w o u l d ,

tions i n c o n t e m p o r a r y A m e r i c a n society w o u l d include market

nevertheless, count as strong m a n i p u l a t i o n i n our second sense of

relations, patterns o f f a m i l y relations, the educational svstem, and

structural manipulation.

the system of entitlements and obligations (affecting alt three of

O n this b r o a d d e f i n i t i o n , background c o n d i -

T h i s dramatic but a d m i t t e d l y isolated case brings i n t o relief

the above) characterizing the m o d e r n welfare state. The system of

the fact that, at this stage i n the argument, we need to focus

c r i m i n a l justice, and the practices governing access to the p o l i t i -

o n choices a m o n g alternative possible practices that m i g h t facili-

cal system and to the mass media, w o u l d also q u a l i f y as back-

tate a self-reflective p o l i t i c a l culture. We cannot rest content w i t h

g r o u n d c o n d i t i o n s . They are alt social practices that determine

merely r u l i n g out certain forms of coercion or interference if we

the d i s t r i b u t i o n of valued goods or characteristics (jail sentences,

are to give content and plausibility to the n o t i o n of a self-reflective

p o l i t i c a l power, social esteem, money, and so o n ) . For our pur-

p o l i t i c a l culture. Isaiah Berlin's d i s t i n c t i o n between positive and

poses, we need n o t develop an exhaustive list o f the basic social

negative l i b e r t y , w h i l e i n some respects a s i m p l i f i c a t i o n , helps us

practices d e f i n i n g background conditions; we need o n l y focus o n

focus o n the difference between w h a t m i g h t be called the laissez-

those b a c k g r o u n d conditions that m i g h t plausibly play a role i n

faire and the activist conceptions of liberty.- T h e laissez-faire con-

i m p l e m e n t i n g the activist conception.

!

ception is negative i n that i t offers freedom from

certain k i n d s

5

T h e activist conception of liberty requires that background

o f i n t e n t i o n a l interference w i t h p o l i t i c a l d i a l o g u e — f r e e d o m f r o m

conditions be adjusted n o n m a n i p u la lively to ensure widespread,

the i m p o s i t i o n of penalties t h r o u g h w h a t we have been c a l l i n g

m e a n i n g f u l p a r t i c i p a t i o n i n the process of p o l i t i c a l dialogue and

explicit manipulation.

t o ensure freedom f r o m strong m a n i p u l a t i o n (in either sense).

H o w e v e r , w i t h o u t e x p l i c i t m a n i p u l a t i o n , a p o l i t i c a l culture may fail to be "self-reflective" i n various ways. I m p o r t a n t groups

By " n o n m a n i p u l a t i v e l y , " I mean the adjustments should proceed w i t h o u t e m p l o y i n g strong m a n i p u l a t i o n .

or crucial interests may lack the self-esteem, the resources, the i n -

O u r task at this p o i n t is n o t t o provide a b l u e p r i n t for the self-

c l i n a t i o n , or the o p p o r t u n i t y to voice their interests. The activist

reflective society. Rather, i t is to address a p r i o r issue; whether the

conception proposes to attack these problems obliquely

ideal of a self-reflective society is hopelessly Utopian, or whether

through

adjustments i n b a c k g r o u n d conditions.

it m i g h t be achievable under conditions that are realistic f o r a

One reason f o r attacking these problems obliquely is that i t

m o d e r n , developed society, at least under favorable conditions.

w o u l d be v i r t u a l l y impossible to attack t h e m directly w i t h o u t em-

D e f e n d i n g the latter possibility is the main task r e m a i n i n g to us. I

p l o y i n g some f o r m of s t r o n g m a n i p u l a t i o n . Even then, we should

propose to d o so by o u t l i n i n g a general strategy for implementa-

be skeptical about w h a t w o u l d be achieved by such an e f f o r t .

t i o n and by i n t r o d u c i n g t w o examples of the k i n d of i n s t i t u t i o n a l

As noted earlier, we must be d i s t r u s t f u l of government officials

i n n o v a t i o n that w o u l d be necessary: the representation

r e g u l a t i n g c o m m u n i c a t i o n according to its content—even if their

and the deliberative o p i n i o n p o l l . M y suggestions constitute a re-

announced mandate is to produce a more self-critical d i a l o g u e .

search agenda rather than a b l u e p r i n t , but I hope to demonstrate

4

T h e o b l i q u e strategy of the activist conception is to ensure t h a t b a c k g r o u n d conditions encourage widespread, meaningful par-

voucher

t h a t the u l t i m a t e goal is a reasonable aspiration. W e need to establish t h a t i t m i g h t be possible to achieve mass

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171

engagement w i t h a self-reflecttve p o l i t i c a l dialogue, one that gives

and k n o w l e d g e of social conventions. T h e latter is interpreted

effective voice to interests across all the m a m cleavages in the

b r o a d l y to mclutle knowledge of the prerequisites for participa-

society, For o u r purposes, the crucial issue is not the level of mass

t i o n and e v a l u a t i o n , b o t h in f o r m a l p o l i t i c a l processes and i n the

p o l i t i c a l p a r t i c i p a t i o n , but whether there is mass engagement w i t h

i n f o r m a l practices available to citizens.

a se If-reflective p o l i t i c a l dialogue, one that avoids m a n i p u l a t i o n in the senses we have defined.

portunities.

Hence, the entire system of s o c i a l i z a t i o n — w i t h i n w h i c h I i n clude families, school systems, the mass media, and private v o l -

T h e required adjustments m background conditions can be considered under three headings: capacities,

7

incentives,

and

u n t a r y organizations (ranging f r o m churches to the Boy S c o u t s ) —

op-

must be assessed according to h o w w e l l i t ensures these capacities

Under the first heading, I w i l l argue that the social

t h r o u g h o u t the p o p u l a t i o n . W h e n there is evidence that c h i l d r e n

c o n d i t i o n s tor certain essential capacities arc required as part of

are n o t b e m g p r o v i d e d w i t h the essential capacities—literacy, lan-

the "essential benefits" {guaranteeing the social conditions of f u l l

guage skills, knowledge of social conventions necessary for par-

m e m b e r s h i p ) . Under the second and t h i r d headings, I w i l l argue

t i c i p a t i o n and e v a l u a t i o n — t h e n i t is appropriate f o r the state to

t h a t certain incentives and o p p o r t u n i t i e s are required if m a n i p u l a -

intervene by causing some adjustment i n the relevant background

t i o n , e x p l i c i t or s t r u c t u r a l , is to be avoided. If background c o n d i -

practices, p r o v i d e d that its interventions d o not themselves con-

tions are adjusted under a l l three headings, then i t may be possible

stitute s t r o n g m a n i p u l a t i o n .

to f u l f i l l the activist conception of liberty of p o l i t i c a l culture.

8

T h i s result s h o u l d be neither controversial nor surprising. For

First, citizens generally should have the capacity to receive and

example, accepted notions of f a m i l y autonomy leave ample r o o m

express p o l i t i c a l views, b o t h factual and evaluative, o n any issues

for the state t o intervene i n the "best interests of the c h i l d . ' " ' W h i l e

they find salient w i t h i n the b r o a d d o m a i n of " p o l i t i c a l " culture

these n o t i o n s leave families w i d e latitude to influence the develop-

defined earlier. These capacities obviously include whatever l i t -

ment o f their c h i l d r e n , i t is still appropriate f o r the state to ensure

eracy and language skills are necessary for p a r t i c i p a t i o n i n the

that, somehow, the c h i l d is prepared for adult roles by a c q u i r i n g

6

shared social space o f the p o l i t i c a l culture. They also include w h a t -

the basic capacities necessary for citizenship. S i m i l a r l y , whatever

ever k n o w l e d g e o f social conventions and institutions constitutes

else we m i g h t expect of our school systems, ensuring these basic

a m i n i m u m prerequisite for p o l i t i c a l p a r t i c i p a t i o n . I n this coun-

capacities w o u l d seem central to their mission.

try, if I d o n o t understand the role of Congress, or of parties and

B u t can the state adjust background conditions that determine

elections, m y ignorance is likely to cut me o f f f r o m many effective

capacities w i t h o u t engaging i n explicit manipulation? First, i t

acts o f p o l i t i c a l expression and p a r t i c i p a t i o n ( w r i t i n g m y con-

s h o u l d be n o t e d that the state can have a considerable

gressman, h e l p i n g m campaigns, m a k i n g c o n t r i b u t i o n s , and so

w i t h o u t e m p l o y i n g coercive penalties. For example, the state can

f o r t h ) . I n a d d i t i o n , one must be knowledgeable about the shared

set standards f o r schools to ensure that the basic capacities are

impact

social conventions o f evaluation regarded as appropriate for p u b -

developed i n students, and then i t can offer m a t c h i n g funds o r

lic policy. T h i s does not mean that one must ultimately subscribe

grants to schools t h a t meet its requirements. Alternatively, i t can

to those conventions. B u t one must understand w h a t they are m

offer vouchers directly to s t u d e n t s — p r o v i d e d t h a t the vouchers

order t o receive (and interpret w h a t one receives) and/or t r a n s m i t

are used at schools or at preschool programs meeting standards

(in appropriate f o r m ) any response one m i g h t be moved to p u t

t h a t ensure a c q u i s i t i o n of the required capacities.

f o r w a r d . Hence, by "capacities" we mean literacy, language skills,

i t is also w o r t h n o t i n g that some of the most dramatic i m p r o v e -

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merits i n the cognitive development of children f r o m disadvantaged families have resulted f r o m educational efforts i n the home designed to affect patterns o f parent-child interaction so as t o encourage the early acquisition of various cognitive s k i l l s .

10

Such

efforts require the v o l u n t a r y p a r t i c i p a t i o n of parents; government s u p p o r t to make such assistance available could do a great deal to ensure t h a t c h i l d r e n f r o m the "underclass" do n o t end up effectively disenfranchised as adults f o r lack o f basic s k i l l s . " A second p o i n t is that even w h e n the state employs coercive penalties, i t need not employ them based o n the content of conscientious p o l i t i c a l views. I n t h a t way, i t can avoid e x p l i c i t man i p u l a t i o n . T h e required literacy, language skills, and k n o w l e d g e o f social conventions are all defined independently o f the i n d i vidual's conscientious p o l i t i c a l views. T o a large extent, people m a y believe w h a t they l i k e but still acquire the capacity to e m p l o y certain skills and to understand the social conventions necessary f o r f u l l membership i n the society. There is no p r e s u m p t i o n t h a t they w i l l subscribe t o the v i e w that these conventions or skills are a p p r o p r i a t e , but o n l y that they w i l l have sufficient f a m i l i a r i t y w i t h those skills and conventions t o be able to employ t h e m i f they w i s h . Suppose, however, t h a t someone resists as a matter o f p r i n c i p l e . She m i g h t , f o r example, believe that m o d e r n i t y is simply evil and t h a t to acquire the capacities even to understand i t is to o p e n herself up to f o r b i d d e n influences and temptations. T o p e r m i t her to resist a c q u i r i n g the skills necessary for p a r t i c i p a t i o n is t o p e r m i t her, effectively, to disenfranchise herself f r o m active membership i n the p o l i t i c a l culture. T h e difficult issue is that the state has to ensure, at some p o i n t , that she has the capacities necessary to be able t o make the decision (to o p t out) competently. T h i s w i l l req u i r e t h a t at some stage i n her life she be given enough f a m i l i a r i t y w i t h the culture to be able to evaluate i t . As a result, some exposure t o m o d e r n i t y w i l l be unavoidable. A f t e r that, i f she opts o u t v o l u n t a r i l y , there is n o reason w h y i t must be a concern of the state's. W i t h c h i l d r e n , however, the matter is a bit different. For par-

173

ents to be p e r m i t t e d to deny their children the essential capacities t o participate i n adult society (and eventually to make their o w n decisions about their respective conscientious beliefs) is to i m pose a penalty o n t h e m . We can consider the essential capacities f o r adult p a r t i c i p a t i o n something t o w h i c h everyone is entitled (or t o w h i c h every n o r m a l c h i l d capable of a c q u i r i n g t h e m is ent i t l e d ) . W i t h i n o u r f r a m e w o r k , they should be considered part of 12

the "essential benefits" of f u l l membership. Hence, if parents deny their c h i l d r e n the conditions necessary to acquire those capacities, they are penalizing their children based o n their notions of w h a t the conscientious beliefs of their c h i l d r e n eventually ought to be. T h e i r a c t i o n fits the definition o f e x p l i c i t m a n i p u l a t i o n offered earlier. F o r the state to intervene i n families merely t o ensure t h a t children acquire these essential capacities, one w a y or another, is to intervene so as to prevent strong m a n i p u l a t i o n by the parents. To require the p r o v i s i o n of essential capacities for all future members o f the society is not t o single o u t the c h i l d r e n of any particular g r o u p . O f course, i f parents object n o t to their c h i l d r e n a c q u i r i n g the essential capacities, but t o one particular manner of acquisition—say, school attendance rather than home instruct i o n — t h e n the state m i g h t w e l l have to accommodate alternative methods. T h e parents w o u l d have a c o m p e l l i n g case w h e n there was a p r a c t i c a l , alternative strategy for f u l f i l l i n g the same purpose t h a t c o u l d be made available to t h e m w i t h o u t i m p o s i n g a penalty o n t h e m (and w i t h o u t i m p o s i n g a significant penalty on anyone else). T u r n i n g to o u r second heading, citizens should generally have incentives to exercise the capacities just enumerated. T w o kinds of incentives need discussion: negative and positive. By negative incentives, i mean the penalties ruled out by the p r o h i b i t i o n o n explicit m a n i p u l a t i o n . This p r o h i b i t i o n prevents negative incentives f r o m being imposed (or credibly threatened) because of the content {actual o r prescribed) o f conscientious p o l i t i c a l views {to the extent t h a t these are f o r m u l a t e d as c o n t r i b u t i o n s to p o l i t i c a l dialogue). B u t the mere absence of negative incentives cannot be expected

174

The C o n d i t i o n s o f A c t i v i s t L i b e r t y

A S e l f - R e f l e c t i v e Society

175

to guarantee p a r t i c i p a t i o n . We need positive incentives, b o t h f o r

izing democracy m i g h t , by itself, provide an incentive for people

engagement and for p a r t i c i p a t i o n . Unless citizens are generally

to become engaged by their p o l i t i c a l culture i n general, and by

engaged by the process of p o l i t i c a l dialogue, unless they have an

the process o f p o l i t i c a l dialogue i n particular. If the n o t i o n is

interest i n conscientiously e m p l o y i n g their capacities, the c o n t r i -

that m y o p i n i o n matters because my vote matters (and I cannot

butions of others effectively w i l l f a l l o n deaf ears. W h i l e some

responsibly decide h o w to vote unless I am engaged by p u b l i c

apathy and disinterest is inevitable, a self-reflective p o l i t i c a l c u l -

debate), then this strategy for adjusting b a c k g r o u n d conditions

ture w o u i d be impossible unless there were mass receptiveness to

w o u l d clearly be undermined i f i t were r a t i o n a l to conclude that

the dialogue.

my vote, o n any reasonable analysis, simply does n o t matter.

T h e first step, but only a m i n i m a l one, i n p r o v i d i n g an incen-

H a r d - h e a d e d analysts of p r o b a b i l i t y have f o u n d the prospects

tive f o r mass engagement i n the p o l i t i c a l culture is to make p u b l i c

o f i n d i v i d u a l influence so small that they have o n l y managed to

o p i n i o n consequential. If we institutionalize a regular connection

rescue the r a t i o n a l i t y of v o t i n g by positing voter satisfaction w i t h

between p u b l i c o p i n i o n and p u b l i c p o l i c y — i n short, i f w e estab-

the " e t h i c " o f v o t i n g , ' But t h a t ethic, conceived i n terms of its

lish some f o r m of democracy—then

4

public opinion on political

consequences, i n t u r n supports the conclusion that i t is i r r a t i o n a l

matters is, by that fact alone, rendered consequential. I t is d i f -

to vote, given even t r i v i a l costs and the clearly minuscule p r o b a -

ferentiated f r o m o p i n i o n s about fashion o r the weather o r the

b i l i t y o f h a v i n g any i n d i v i d u a l effect. Positing satisfaction w i t h

u p c o m i n g f o o t b a l l season. O f course, i n large-scale i n s t i t u t i o n s

the ethic o f v o t i n g does not save i n d i v i d u a l p a r t i c i p a t i o n f r o m the

or groups, i n d i v i d u a l incentives t o participate i n the p r o v i s i o n o f

charge o f i r r a t i o n a l i t y because i t relies o n individuals being irra-

p u b l i c goods may be so small as to be nearly negligible. Those

t i o n a l , n o t i n their calculation of costs and benefits, but i n their

concerned merely w i t h the benefits f l o w i n g f r o m policy decisions

i n c l u s i o n , w i t h i n the benefits, of a d u t y that is i r r a t i o n a l o n its

w i l l o f t e n find i t r a t i o n a l ( i n a n a r r o w , instrumental sense o f r a t i o -

o w n terms.

n a l i t y ) t o be free-riders. They can get the benefits of a p u b l i c g o o d w i t h o u t g o i n g t o the t r o u b l e o f c o n t r i b u t i n g to its p r o v i s i o n .

O f course, f o r our purposes i t w o u l d not be devastating if i n d i v i d u a l p a r t i c i p a t i o n were i r r a t i o n a l — p r o v i d e d that we c o u l d

T o take the classic example, w h y should i vote (or otherwise

count o n i t i n any case. A t this p o i n t m o u r general argument, we

participate) i n the politics of a large-scale nation-state? M y vote

are concerned w i t h the adjustment of b a c k g r o u n d conditions so

w i l l n o t , o n any reasonable expectation, make any difference t o

as t o p r o v i d e incentives guaranteeing enough p a r t i c i p a t i o n , or at

the outcome and whatever benefits result f r o m public decisions

least mass engagement, to produce a self-reflective p o l i t i c a l cul-

are benefits I w i l l receive anyway. Even i f m y reasons are n o t self-

ture. I f p a r t i c i p a t i o n is i r r a t i o n a l but w e can count o n i t i n any

interested b u t I a m evaluating the consequences of an election o n

case, t h e n , i n some sense, the task has been accomplished. The

a l t r u i s t i c or ethical grounds, those consequences w i l l result m any

d i f f i c u l t y is t h a t i n a self-reflective p o l i t i c a l culture w e c o u l d n o t

case, and m y vote is u n l i k e l y to make any difference.

A similar

count o n people c o n t i n u i n g to accept an ethic that was i r r a t i o n a l

p o i n t can be made about most other forms of p o l i t i c a l p a r t i c i p a -

o n its o w n terms, because of mere h a b i t o r lack of analysis. The

t i o n available t o me i n the large-scale n a t i o n - s t a t e — m a k i n g small

forces o f i n c u l c a t i o n that m i g h t p e r m i t such an ethic t o be w i d e l y

c a m p a i g n c o n t r i b u t i o n s , signing petitions, canvassing i n elections,

m a i n t a i n e d i n some societies w o u l d n o t operate as effectively i n

m a n n i n g the phone banks, and so f o r t h .

one t h a t achieved the level of conscientious and c o n t i n u i n g self-

13

i t is w o r t h pausing for a m o m e n t to consider this f a m i l i a r line of argument, for i t undermines the c l a i m that i n s t i t u t i o n a l -

e x a m i n a t i o n w e are positing here. T h i s conclusion about the irrationality o f the d u t y follows most

176

The C o n d i t i o n s of Activist L i b e r t y

A S e l ï - R e f l e c t i v e Society

clearly w h e n the issue is posed i n a c t - u t i l i t a r i a n terms or i n terms of any other clear-headed evaluation of the consequences o f the isolated decision to vote (even w h e n the consequences t h a t are valued may be completely independent of u t i l i t y or preference satisfaction). H o w e v e r , some other m a i n approaches that depart f r o m this assumption d o n o t , thereby, produce more satisfactory results. O n e approach is to conceive o f political p a r t i c i p a t i o n n o t i n terms o f its consequences f o r the state o f the w o r l d , but i n terms of its expressive f u n c t i o n for the i n d i v i d u a l agent. Just as Ï may w i s h to express myself, regardless of whether I influence the o p i n i o n s o f anyone else, Ï may w i s h to vote, regardless of whether I have any effect o n the outcome. H o w e v e r , w h i l e v o t i n g is u n d o u b t e d l y a f o r m of expression, its anonymous and r o u t i n i z e d character i n the m o d e r n nation-state renders this dimension of the act extremely t h i n . T h i s approach does not seem plausible f o r a generalized r e h a b i l i t a t i o n o f the r a t i o n a l i t y o f v o t i n g i n n a t i o n a l elections. M a n y other forms o f expression w i l l better c o m m u n i cate t o others, w i l l be more i n t r i n s i c a l l y satisfying, and w i l l i n volve less inconvenience. C a r r y i n g a placard outside the p o l l i n g b o o t h w i l l better communicate the content of m y views t o others t h a n w i l l f i l l i n g o u t a secret b a l l o t inside. As for satisfaction, even singing p o l i t i c a l songs i n the bath is likely to be more satisfying t h a n p u l l i n g a lever o n a v o t i n g m a c h i n e .

15

A n o t h e r approach to r e h a b i l i t a t i n g the r a t i o n a l i t y o f v o t i n g and other f o r m s of p a r t i c i p a t i o n i n the large-scale nation-state w o u l d rely o n a p r i n c i p l e of hypothetical generalization. L i k e the expressive-function argument, this approach departs f r o m the ass u m p t i o n t h a t the act of p a r t i c i p a t i o n is to be evaluated i n terms o f its (actual) i n d i v i d u a l consequences. We are to argue instead f r o m a p r i n c i p l e of false universalization: w h a t i f everyone d i d the same? 1 s h o u l d vote because i f everyone failed to vote (or if everyone o n m y side failed to vote), the results w o u l d be disastrous f o r the i n s t i t u t i o n s o f democracy (or for m y p a r t i c u l a r issue). H o w e v e r , as C. D . B r o a d demonstrated i n a classic article, this p r i n c i p l e o f hypothetical generalization functions as a " m o r a l

177

microscope. ' i t is indiscriminate. W h i l e i t succeeds i n m a g n i f y i n g 1

the t r i v i a l effects o f m y vote to a level o f m o r a l significance, it also magnifies a host of other t r i v i a l effects, e n d o w i n g them a l l w i t h m o r a l significance. Broad's example was that p l u c k i n g one ear o f c o r n f r o m a field w o u l d lead us to imagine a m i l l i o n people d o i n g likewise. P l u c k i n g one ear w o u l d n o t d o any h a r m w o r t h considering, B r o a d concluded, even t h o u g h a m i l l i o n similar acts w o u l d have a devastating effect.'

6

Clearly, this argument gets at the free-rider. S h i r k i n g his p a r t i n the collective e f f o r t w i l l not by itself d o any h a r m , b u t " e v e r y o n e " (or large numbers of others) d o i n g the same w i l l prevent the public g o o d f r o m being p r o v i d e d . But this argument also gets at far m o r e than the free-rider. W h a t t r i v i a ! act i n your life or mine w o u l d resist enlargement to a level of m o r a l significance t h r o u g h h y p o thetical generalizations envisaging the consequences of everyone d o i n g the same? A f t e r finishing this paragraph, should I go to the l i b r a r y t o check out some books? If " e v e r y o n e " went t o the l i b r a r y , the b u i l d i n g w o u l d p r o b a b l y collapse; and i f it d i d not collapse, the l i b r a r y w o u l d be emptied at a stroke by countless others d o i n g " t h e same." Perhaps some l i m i t a t i o n of the generalized-consequences p r i n ciple c o u l d be designed so as to l i m i t its indiscriminate m a g n i f i cations, so as t o l i m i t the range, so to speak, of the " m o r a l m i c r o scope."

1 7

H o w e v e r , there is no reason for us to require t h a t the

m o t i v a t i o n s f o r p o l i t i c a l p a r t i c i p a t i o n depend o n any particular controversial line o f revision f o r the p r o b l e m of the isolated voter i n the large-scale nation-state. Instead, ï w i l l focus o n adjustments in the b a c k g r o u n d conditions w h i c h alter the situation a n d , i n that w a y , reduce the v u l n e r a b i l i t y of i n d i v i d u a l p a r t i c i p a t i o n t o charges o f i r r a t i o n a l i t y . One reason f o r this focus is t h a t the p r o b l e m of adjusting backg r o u n d c o n d i t i o n s is not p r i m a r i l y a m o r a l p r o b l e m , but rather one o f i n s t i t u t i o n a l design. I t is a matter of i n s t i t u t i o n a l i z i n g social practices that w i l l effectively

motivate

people, collectively, to cre-

ate a self-reflective political culture. M o r a l i t y is only one m o t i -

A S e l f - R e f l e c t i v e Society

178

T h e C o n d i t i o n s of A c t i v i s t L i b e r t y

va tor, and n o t necessarily the most effective one. I n any case, i t

179

tant premise ot the argument is that p a r t i c i p a t i o n , rather than

is arguable that our f r a m e w o r k already supplies an answer to

being valued t o r its o w n sake, is valued only instrument-ally tor Its

the specifically m o r a l p r o b l e m — w h y should people participate

effect o n the decision to provide the public g o o d . H o w e v e r , some

p o l i t i c a l l y i n the large-scale nation-state? A c c o r d i n g to the ideal

f o r m s of p a r t i c i p a t i o n may be valued f o r their o w n sake. O l s o n

o f a self-reflective society, if citizens receive the benefits of f u l l

can assimilate t h e m to his argument by saying that they provide

membership under a l l of o u r conditions (where exit is u n i m p e d e d ,

•'selective incentives" (incentives specific to those w h o p a r t i c i -

w h e r e the practices are self-reflective, where there is a consensus

pate). If adjustments i n background conditions provide selective

s u p p o r t i n g the relevant practices, and so o n ) , then they are o b l i -

incentives o r i f they affect the g r o u p size relevant to particular

gated to live up to the duties of f u l l membership. O u r v a r i a n t o f

forms of p a r t i c i p a t i o n , the r a t i o n a l i t y of p o l i t i c a l p a r t i c i p a t i o n

the fairness argument can be viewed as a response to the pure

can be rehabilitated.

p r o b l e m o f p o l i t i c a l o b l i g a t i o n . H o w e v e r , this pure p r o b l e m — t h e

T h e other side o f the argument attacking the r a t i o n a l i t y of

ethical issue o f w h y I s h o u l d vote or i n any other w a y participate

p a r t i c i p a t i o n i n large groups is the a f f i r m a t i o n of the rationality

i n the politics of the nation-state—is only a part o f the p r o b l e m o f

of p a r t i c i p a t i o n i n smaller groups and institutions. There, i t is

effectively m o t i v a t i n g people to participate to the extent required

reasonable for each i n d i v i d u a l to conclude that he is far more

tor a self-reflective p o l i t i c a l culture.

likely to make a difference. For that reason, the strategies of denation-state

centralization and organizational p l u r a l i s m should b o t h w e i g h

being i r r a t i o n a l depends o n g r o u p size, o n the absence of selec-

T h e argument f o r p o l i t i c a l p a r t i c i p a t i o n in the

heavily i n the adjustment of background conditions. Decentral-

tive incentives that apply just to those w h o participate, and o n

ization provides arenas smaller than the large-scale nation-state

the costs o f p a r t i c i p a t i o n . B a c k g r o u n d conditions can be adjusted

where a n i n d i v i d u a l can have a far greater effect. O r g a n i z a t i o n a l

substantially o n a l l o f these counts to encourage b o t h engagement

p l u r a l i s m means that there are many arenas i n a d d i t i o n to the

and p a r t i c i p a t i o n .

f o r m a l governmental apparatus i n w h i c h the p o l i t i c a l culture can

T h e charge of i r r a t i o n a l i t y acquires plausibility f r o m a picture

flourish and i n w h i c h individuals may participate and influence

o f isolated voters i n mass society motivated to o b t a i n benefits

each other o n p u b l i c issues. This p o i n t encompasses the full range

f r o m collective decisions about the provision o t p u b l i c goods (or

o f v o l u n t a r y organizations, f r o m those w h i c h are e x p l i c i t l y p o l i t i -

m o t i v a t e d to produce consequences they approve of by such de-

cal to those w h i c h usually attempt to distance themselves

cisions, w h e t h e r or n o t those consequences benefit t h e m i n any

partisan p o l i t i c s (such as civic groups, religious organizations, and

from

egoistic sense). Public goods i n the technical sense are available

trade and professional associations)* I n all o f these arenas, p a r t i c i -

to a l l members of a given g r o u p i f they are available to any. T h e

p a t i o n i n the p o l i t i c a l culture can be b o t h i n s t r u m e n t a l ^ effective

basic i n t u i t i o n , made famous by Mancuc O l s o n , is that i t w o u l d

and i n t r i n s i c a l l y appealing.

lfi

seem r a t i o n a l n o t to undertake the costs of p a r t i c i p a t i o n w h e n the

The latter p o i n t puts the issue of selective incentives i n a dif-

same benefits can be expected i n any case. I n very large groups,

ferent l i g h t . If one has the capacity to participate i n the p o l i t i c a l

one's o w n p a r t i c i p a t i o n w i l l n o t make any difference to the o u t -

culture, and if the forms of p a r t i c i p a t i o n are not l i m i t e d to the

come. Hence, i f the public g o o d is to be p r o v i d e d , one w i l l receive

mass-anonymous

it as a tree-nder w i t h o u t h a v i n g to share i n the costs. A n i m p o r -

then i t may become plausible t o regard politics itself as a selective

variety (such as voting i n national elections),

180

The C o n d i t i o n s of A c t i v i s t L i b e r t y

& S e f f - R e f t e c t i v e Society

incentive. Participation comes to be valued not merely for w h a t it

Ï8Ï

needs by the medical care system w o u l d be another. W h e n these

produces, but also f o r w h a t i t means. F o r m u l a t i n g , h o l d i n g , and

liberal process equalities are implemented, they encourage a mea-

expressing p o l i t i c a l opinions become parts of a w a y of life,

sure o f self-esteem and m u t u a l respect t h r o u g h o u t alt sectors o f

A related factor encouraging p a r t i c i p a t i o n m i g h t be termed the

the society.

10

d i s t r i b u t i o n of self-esteem. O f course, " d i s t r i b u t i o n ' is misleading

O f course, people can have the same r i g h t to equal consider-

if i t is taken to i m p l y a centralized o r unitary process o f deci-

a t i o n of their capacities m the job market, the same right to equal

sion. I t is, nevertheless, the case t h a t the structure o f b a c k g r o u n d

consideration o f their votes i n the electoral system, and the same

practices can greatly affect whether self-esteem is so d i f f e r e n t i a l l y

right to equal consideration of their relevant claims by the legal

d i s t r i b u t e d that certain groups w o u l d be loath to participate i n the

or health care systems, but stilt lack the self-esteem t o assert or

p o l i t i c a l culture i n any serious way. As Harrington M o o r e argues,

exercise those rights. T h e difficulty is that self-esteem cannot be

the sanctions that once applied t o I n d i a n Untouchables served " t o

distributed d i r e c t l y by government hand-out i n the w a y that f o o d

prevent i n d i v i d u a l Untouchables f r o m a c q u i r i n g any sense o f self-

or money can be.

1

19

Over t i m e , however, the appropriate background conditions

If the essential benefits of f u l l membership are to be p r o v i d e d

can be expected to d o a great deal to encourage a sense of equal

f o r everyone, then the practices defining background conditions

w o r t h and m u t u a l respect. W h e n the process equalities are c o m -

m u s t p r o v i d e a basis f o r self-esteem and mutual respect across all

bined w i t h the exposure to diverse views and collective self-criti-

esteem that could challenge the a u t h o r i t y of superior castes."

the m a j o r social and economic cleavages of the society. I n other

cism t h a t characterize the activist conception of l i b e r t y , a basis

w o r d s , regardless of one's f a m i l y b a c k g r o u n d , class p o s i t i o n , reli-

w i l l be available f o r c r i t i c i z i n g any ideologies that undermine

g i o n , sex, o r ethnic g r o u p , i t should be reasonable and plausible

self-esteem. F u r t h e r m o r e , i t w i l t be available t o persons w h o are,

t o regard one's o w n conscientious views as deserving o f a hear-

themselves, guaranteed the essential capacities to engage i n t h a t

i n g along w i t h those o f anyone else. Background conditions can

k i n d of c r i t i c i s m . T h i s c o m b i n a t i o n of factors provides reason-

encourage this goal by p r o m o t i n g b o t h (a) a variety o f f o r m a l

able grounds f o r expecting that the self-esteem necessary tor

liberal practices—"process e q u a l i t i e s " — e m b o d y i n g and a f f i r m -

p o l i t i c a l self-assertion and participation w i l l be w i d e l y available

i n g equal consideration, and fb) strategies for t a m i n g the effects

t h r o u g h o u t the society.

o f economic inequalities o n the p o l i t i c a l culture.

individuals w h o lack self-esteem, i t should be possible to avoid

21

W h i l e there w i l t always be idiosyncratic-

B e g i n n i n g w i t h fa}, I have argued, elsewhere, that the substan-

gross m a l d i s t r i b u t i o n s of sett-esteem corresponding to identifiable

tive i m p l i c a t i o n s of liberalism can be thought of as a series o f

cleavages i n the society. A v o i d i n g such m a l d i s t r i b u t i o n s w o u l d

"process equalities"—social

practices i m p l e m e n t i n g equal c o n -

lend p l a u s i b i l i t y to the c l a i m that the social

conditions for self-

sideration of everyone's relevant claims or interests i n c r u c i a l ,

esteem had been made generally available across the society's

selected spheres of life. E q u a l i t y before the law, f o r m a l p o l i t i -

major cleavages.

cal equality (one person, one vote and other f o r m a l requirements

The process equalities just mentioned do n o t deal directly o r

about the value of one's vote}, and f o r m a l equality of o p p o r t u -

e x p l i c i t l y w i t h economic inequalities. They single o u t claims to

n i t y (meritocratic, n o n d i s c r i m i n a t o r y practices of job assignment}

equal consideration that are meant to apply, i n their essentials,

are the most obvious. E q u a l i t y o f consideration o f one's essential

regardless of economic differences. But there is no d o u b t that eco-

182

A S e l f - R e f l e c t i v e Society

The C o n d i t i o n s o f A c t i v i s t L i b e r t y

183

n o m i c differences themselves, w h e n sufficiently great, can so dras-

parent prospects f o r social m o b i l i t y are based o n n o t h i n g more

tically affect the d i s t r i b u t i o n of self-esteem that some members

than false consciousness or class m y s t i f i c a t i o n , then these sooth-

can be effectively disenfranchised f r o m p a r t i c i p a t i o n .

ing psychological effects cannot be counted o n i n a

There are three obvious strategies for dealing w i t h this p r o b lem: i n s u l a t i o n , social m o b i l i t y , and r e d i s t r i b u t i o n .

self-reflective

p o l i t i c a l c u l t u r e . They w i l l likely be revealed as shams serving an ideological f u n c t i o n — k e e p i n g the lower orders i n their places.

By i n s u l a t i o n 1 mean the strategy of preventing economic i n -

Rather, w e w o u l d require the reality and not merely the appear-

equalities f r o m affecting the d i s t r i b u t i o n of the g o o d i n question.

ance of social m o b i l i t y i n order to make this strategy w o r k . I n

T o some extent, the process equalities already mentioned serve

this society the m a i n p r o b l e m area w o u l d be the u r b a n " u n d e r -

this f u n c t i o n , i t is i m p o r t a n t for the society's social practices to

class" t h a t has faced enormous difficulties, f r o m one generation

a f f i r m that everyone has the same right to equal consideration of

to the n e x t , b r e a k i n g i n t o the mainstream economy. A concerted

their relevant claims by the v o t i n g system, the legal system, and

policy e f f o r t w o u l d have to be mounted to improve skill acqui-

so f o r t h . I t is no small matter f o r state interventions to ensure the

s i t i o n , i n i t i a l entrance i n t o the job market, access to capital, and

same r i g h t to an equal vote, to a fair t r i a l , to consideration of

o p p o r t u n i t i e s for entrepreneurship.

essential health needs, to consideration of one's relevant qualifica-

w o u l d be to foster conditions for f a m i l y f o r m a t i o n so as to better

tions in the job m a r k e t — a l l to be established regardless o f one's

provide f o r the next generation. Substantial prospects f o r social

starting p o s i t i o n i n the economic hierarchy. If this process—of

m o b i l i t y f r o m all sectors of the society are n o t a Utopian require-

insulating the process equalities f r o m giving greatly d i f f e r e n t i a l

m e n t , b u t they m i g h t be an expensive one, p a r t i c u l a r l y w h e n one

consideration to the w e a l t h y and powerful—succeeds, then one

considers t h a t many o f the programs we now conventionally i d e n -

o f the m a j o r threats posed by economic inequality w i l l have been

t i f y w i t h the welfare state benefit the m i d d l e classes far more t h a n

defused. A first step i n this d i r e c t i o n is to focus o n floors rather

the very p o o r .

23

A n o t h e r i m p o r t a n t factor

than c e i l i n g s — o n guarantees o f the m i n i m u m acceptable level f o r

instead o f a m e l i o r a t i n g or insulating the effects of economic

everyone. W h i l e anyone accused of a crime may not be guaranteed

inequality, one c o u l d attack the problem d i r e c t l y by a t t e m p t i n g

the most talented representation money can buy, he or she can

to e l i m i n a t e o r decrease i t . A n y plausible theory o f d i s t r i b u t i v e

be guaranteed representation at an adequate level of competence.

justice w i l l , no d o u b t , require a substantial degree o f r e d i s t r i b u -

Similar requirements c o u l d be w o r k e d out f o r the other process

t i o n . H o w e v e r , o u r concern here is n o t the development of a f u l l -

equalities.

b o d i e d t h e o r y o f d i s t r i b u t i v e justice. Rather, it is the m u c h nar-

22

We w i l l r e t u r n to i n s u l a t i o n strategics i n discussing the d i s t r i -

r o w e r question of w h a t background conditions w o u l d facilitate

b u t i o n of o p p o r t u n i t i e s f o r expression and p a r t i c i p a t i o n . For the

a self-reflective p o l i t i c a l culture. Assuming that some m i n i m u m

m o m e n t , i t is w o r t h n o t i n g t w o other strategies for a m e l i o r a t i n g

floor has been guaranteed by the essential benefits of f u l l m e m -

the effect of economic inequalities o n self-esteem: social m o b i l i t y

bership, the issue o f economic inequalities arises at t w o p o i n t s :

and r e d i s t r i b u t i o n .

one is the effect o n self-esteem ( w h i c h affects the m o t i v a t i o n s for,

Even i f the economic inequalities are great, i f Ï have substantial

and character of, p a r t i c i p a t i o n ) , and the other is the d i s t r i b u t i o n

prospects (and if m y c h i l d r e n have them as well) o f reaching some

of o p p o r t u n i t i e s f o r p a r t i c i p a t i o n . There is no d o u b t that some

o f the m o r e h i g h l y valued positions, then I can t h i n k i n terms o f

degrees o f economic inequality can have a very substantial effect

my future p o s i t i o n as w e l l as my present one. H o w e v e r , i f m y ap-

on self-esteem. Is this effect so great as to prevent p o l i t i c a l par-

184

A S e l f - R e f l e c t i v e Society

The C o n d i t i o n s o f A c t i v i s t L i b e r t y

ticipation? T h i s is a complex e m p i r i c a l question that raises issues of i n s t i t u t i o n a l design. Ï am already assuming that the essential benefits of f u l l m e m bership w o u l d require some socially agreed d e t e r m i n a t i o n of a m i n i m u m acceptable level of economic w e l l - b e i n g . N o t o n l y w o u l d such a floor be required by the n o t i o n o f essential benefits, i t w o u l d also be a plausible component of the background cond i t i o n s necessary f o r a self-reflective p o l i t i c a l culture. Those w h o are o n the margins o f survival are more easily subjected to s t r o n g m a n i p u l a t i o n . They are t o o busy attempting t o survive, and they have t o o few of the relevant organizational resources, f o r their interests t o o b t a i n an effective hearing. U n d o u b t e d l y , some m i n i m a l economic prerequisites m u s t be satisfied i f people generally are to have a sense o f independent selfw o r t h . If I face a c o n t i n u i n g threat of starvation, i may n o t feel secure i n asserting m y opinions and may feel i t necessary to defer to those w h o have economic p o w e r over m y very s u r v i v a l . For this reason, enough r e d i s t r i b u t i o n t o ensure an economic safety net, an insurance level for everyone, is the least that is required, h i a d d i t i o n , as M i c h a e l Walzer has argued, many developed societies have economic prerequisites f o r a f u l l sense of membership i n the p o l i t i c a l culture, i f one lacks access to television or a telephone, or to newspapers, r a d i o , o r the postal system, one is effectively disenfranchised f r o m the mainstream p o l i t i c a l culture of a m o d e r n society. T h i s k i n d o f access is useful not only because it facilitates p a r t i c i p a t i o n , but also because i t encourages a sense o f f u l l m e m bership i n the p o l i t i c a l culture (particularly w h e n combined w i t h the process equalities mentioned earlier).

24

Regardless o f the prerequisites p r o v i d e d at the b o t t o m , there is n o d o u b t t h a t the relative

standing of various strata can have

an independent effect o n self-esteem.

25

However, w i t h process

equalities, social m o b i l i t y , and the safety net a l l i n place, it is an open question h o w m u c h a d d i t i o n a l r e d i s t r i b u t i o n m i g h t be req u i r e d — a t least for the l i m i t e d purpose of ensuring the universal prerequisites f o r p o l i t i c a l engagement and p a r t i c i p a t i o n regard-

185

less of social s t r a t u m . Rawls, w h i l e not f a v o r i n g r e d i s t r i b u t i o n for its o w n sake, argues that at some p o i n t , i f economic i n e q u a l i ties become great enough, envy becomes "excusable" because o f the effect o f those inequalities o n self-esteem,

26

Accepting this

p o i n t provides independent grounds for l i m i t i n g the most extreme economic inequalities (through redistribution) regardless o f the success o f the other strategies (insulation and social m o b i l i t y ) f o r ensuring a universal basis for self-esteem and m u t u a l respect. N o t e that our focus here is o n adjustments i n the background conditions t h a t w o u l d be necessary f o r l i b e r t y of p o l i t i c a l culture in the activist sense. I n such a society, the o p t i o n o f more redist r i b u t i o n w o u l d remain open, depending o n h o w other issues of p o l i t i c a l and economic structure were decided. M y contention is that f r o m the premise t h a t we must solve the legitimacy p r o b l e m for ideal theory, we can get distinctive and demanding criteria for l i b e r t y of p o l i t i c a l culture. These criteria tell us a great deal about the m o r a l l y preferred state, but they do n o t , i n a contextindependent manner, tell u s c v e r y t h i n g . H o w e v e r , i f a self-reflective society were achieved, the i n s t i t u tions and practices s o l v i n g the legitimacy p r o b l e m c o u l d d o a great deal t o complete the argument. For example, the n o r m s of evaluat i o n i n t e r n a l to the welfare state, to the m a r k e t , and to p o l i t i c a l democracy w o u l d , i f legitimated by this k i n d of argument, give substance to the conflict of principles i n particular p o l i c y cases and i n s t i t u t i o n a l decisions. W i t h o u t a systematic theory, a basis for the system's p a r t i c u l a r decisions w o u l d f o l l o w f r o m this theory o f legitimacy. W h a t I a m p r o p o s i n g is a theory of f u l l y legitimate p o l i t i c a l systems, n o t a systematic theory o f justice. If a f u l l y legitimate p o l i t i cal system m a i n t a i n e d its consensus, remained self-reflective i n its evaluation o f its o w n political practices, and satisfied o u r other conditions, then c o n f o r m i n g to the norms of evaluation i n t e r n a l to those legitimate practices w o u l d determine specific d i s t r i b u t i o n a l questions as they arose. A f t e r we have specified background conditions f o r the system to f u l f i l l our legitimacy requirements,

186

ft S e K - R e f f e t t i v e S a t i e t y

The C o n d i t i o n s o f A c t i v i s t L i b e r t y

187

many details w o u l d still r e m a i n open to the p o l i t i c a l determina-

society, t h a t w o u l d not touch the issue o f h o w advertising w o u l d

tions of such a system. I t is i n t h a t sense that our prescriptions are

compete f o r people's attention i n a society w h i c h instituted the

context-dependent, rather than context-independent i n the m a n -

rest of o u r b a c k g r o u n d c o n d i t i o n s — w h i c h generally p r o v i d e d the

ner o f m o r e systematic theories.

capacities, incentives, and opportunities f o r mass p o l i t i c a l engage-

T h e effects o n self-esteem are n o t the only peril posed by the

ment. Even if one t h o u g h t that advertising succeeded so over-

market economy to the development of a self-reflective p o l i t i c a l

w h e l m i n g l y i n c o m p e t i t i o n w i t h our present, attenuated p o l i t i c a l

c u l t u r e . We m i g h t imagine commercial messages so d o m i n a t i n g

culture, i t w o u l d still be a completely open question h o w i t w o u l d

mass c o m m u n i c a t i o n s that, i n effect, the entire p o l i t i c a l dialogue

compete once the conditions for a more robust, self-reflective ver-

is d r o w n e d o u t and its audience dulled or deadened to i t . O n

sion was i n place.

this scenario, structural m a n i p u l a t i o n t h r o u g h mass advertising

If advertising played the role assigned t o i t by the w o r s t case—

and the encouragement of single-minded consumerism succeeds

even under the best conditions of ideal t h e o r y — t h e n some restric-

by completely d i v e r t i n g the citizenry f r o m paying any serious at-

tions o r modifications o f i n s t i t u t i o n a l design c o u l d be devised.

t e n t i o n to the issues posed f o r t h e m by p o l i t i c a l dialogue.

Presumably, c o m m e r c i a l television advertising and the consumer-

Some accounts of advertising contend that this h y p o t h e t i c a l p i c t u r e correctly applies to o u r society at present.

27

O t h e r studies

ism i t fosters, t o the extent that they f u n c t i o n as diversions f r o m p o l i t i c a l dialogue, are not themselves c o n t r i b u t i o n s to i t . There-

argue that this picture is grossly overstated and the effects of

fore, they have no basis for p r o t e c t i o n at any fundamental level

advertising overestimated, i n p a r t because consumers k n o w that

w i t h i n this theory. Perhaps restrictions as to sheer v o l u m e w o u l d

advertising is " p r o p a g a n d a " and they learn, accordingly, t o tune

be i n order. A l t e r n a t i v e financing schemes f o r broadcast television

it o u t or pay i t little a t t e n t i o n .

m i g h t have to be devised. Entities like the B r i t i s h Broadcasting

28

Ï w i l l not presume to resolve e m p i r i c a l controversies o f this

C o r p o r a t i o n , w h i c h preserve substantial independence f r o m b o t h

k i n d about contemporary A m e r i c a n society. N o t e that, f o r m y

government and the private sector, provide one useful m o d e l .

argument, consumerism does n o t in itself pose a decisive i m p e d i -

A greatly strengthened Public Broadcasting

ment. There is no requirement t h a t individuals be self-reflective i n

w i t h strategies f o r more effectively insulating i t f r o m b o t h govern-

their choice o f life-style, o n l y that the system's collective process of

ment and the private s e c t o r — w o u l d be w o r t h e x p l o r i n g . Cable

Service—combined

self-examination be effectively applied to its p o l i t i c a l practices. So

television, video cassette recorders, and other technological de-

l o n g as the system is successful i n encouraging widespread engage-

velopments render this an area of r a p i d change i n any case.

ment i n the p o l i t i c a l sphere, there is r o o m for a mass consumer

i m p o r t a n t p o i n t is that w e s h o u l d not expect advertising to pose

c u l t u r e , just as there is r o o m for a host of other personal pre-

an insuperable obstacle to mass engagement i n p o l i t i c a l dialogue

o c c u p a t i o n s — o r g a n i z e d r e l i g i o n , the cult of se I f - i m p r o v e m e n t ,

under conditions o f ideal theory. A n d to the extent that w e are

the quest f o r salvation, a d u l t education, hobbies, sports, v o l u n t a r y

mistaken i n this hypothesis, restrictions, modifications, o r alter-

organizations, and any manner o f Hfe-styles.

natives t o o u r present scheme of commercial broadcasting could

T h e special danger posed by advertising is that its ever-present

be d e v i s e d .

29

The

30

messages m i g h t d r o w n out the p o l i t i c a l dialogue and d u l l the sen-

Thus far, w e have focused o n incentives for engagement and

sibilities o f its audience. H o w e v e r , even if one accepted the most

p a r t i c i p a t i o n at the mass level. H o w e v e r , i n a large-scale n a t i o n -

extreme account of advertising's role i n contemporary A m e r i c a n

state, there w i l l inevitably be a great deal o f specialization. We

The C o n d i t i o n s of A c t i v i s t L i b e r t y

A S e l f - R e f l e c t i v e Society

188

can expect t h a t many o f the burdens of political dialogue w i l l be carried by c o m p e t i n g specialized elites of one sort or another, p a r t i c u l a r l y public officials, leaders of groups and organizations, intellectuals, reporters, and decision makers i n the media. O b v i ously, the incentives f o r conscientious political dialogue by occu-

;

| g | f e s or costly settlements of suits), o n the state's broadcast e

w i l l be required i f they are to have the appropriate incentives. A p r o m i s i n g strategy for i m p l e m e n t i n g a self-reflective p o l i t i cal culture at the elite level is t o attempt to harness the forces of p o l i t i c a l , i n s t i t u t i o n a l , and economic c o m p e t i t i o n so as t o encourage serious and c r i t i c a l political debate. If we accept the argument offered earlier f o r political equality and some f o r m o f democracy at the mass level, then we already w i l l have p r o v i d e d for significant incentives at the elite level. Electoral c o m p e t i t i o n f o r public office creates an incentive f o r issue entrepreneurship so t h a t a candidate f o r public office can make a name f o r herself as the standard bearer f o r the preferred side o n some policy problem.-

f

y

affairs p r o g r a m m i n g o r introduce the threat of nonrenewal for

:;

;

certain k i n d s o f broadcasts), and o n the state's telecommunica-

|

tions policies o n new technologies (cable, satellite, videotext, and many other innovations that potentially offer greater diversity and access).

|

\y/e can d i v i d e the question of opportunities i n t o occasions f o r

I

receiving and f o r expressing conscientious political v i e w s — w i t h

i-

or w i t h o u t a m p l i f i c a t i o n . I n discussing b o t h , I w i l l focus o n access

|-

to messages t h a t are amplified to a large-scale or mass audience,

•f-: v

xhe ban o n e x p l i c i t m a n i p u l a t i o n applied to acts of expression o r

•

association already does a great deal to protect interpersonal ac-

;

f

cess to messages between individuals or small groups. O f course,

i

even s m a l l - g r o u p interaction can be facilitated, p a r t i c u l a r l y over significant distances, t h r o u g h policies affecting technological con-

f

nections, such as computer n e t w o r k s , videotext a n d , access to

; ; ;

.

Some o f the requirements already mentioned should facili-

32

p u b l i c dialogue. W h e n m a j o r news organizations compete w i t h teams of investigative reporters p o t e n t i a l l y critical o f government policy, w h e n m a j o r research institutes compete to produce findings relevant to

f\K; v,

tate o p p o r t u n i t i e s f o r diverse messages to achieve an effective

t^,/. •

hearing. T h e capacities we specified earlier f o r universal devel-

f

ici;<; i>:^

c o m p e t i t i o n a m o n g candidates and parties can be intensified or made m o r e widespread, the incentives to communicate competing

the forces o f i n s t i t u t i o n a l and economic c o m p e t i t i o n have been

. messages t o v i r t u a l l y every constituency w i l l also be increased. !.*:.;••

should count as p a r t o f the required m i n i m u m resources necessary

behavior. M u c h depends o n the state's tax incentives (for the f o r interested i n s u p p o r t i n g research and public debate}, o n the state's

I have argued that, i n the contemporary social context, access to television, r a d i o , the postal service, telephones, and newspapers

be adjusted by the state to encourage o r discourage this k i n d o f m a t i o n and s u p p o r t o f n o n p r o f i t organizations and f o u n d a t i o n s

F u r t h e r m o r e , i n s t i t u t i o n a l i z i n g some f o r m o f democracy provides an incentive f o r those people t o be reached. To the extent that

groups e m p l o y experts to s u p p o r t their respective causes, then

ture. A l l o f these activities are susceptible to incentives that can

opment require that people be literate and have a knowledge of the social conventions necessary to evaluate p o l i t i c a l messages,

p u b l i c policy, w h e n n o n p r o f i t organizations and public interest

harnessed i n the service o f a more self-reflective political cul-

(and privacy of) telephones. The problematical issues, however, arise f o r larger audiences.

H o w e v e r , the same forces of c o m p e t i t i o n also create incentives g r o u n d conditions can d o a great deal t o encourage m o r e serious

e

f ' l i c e n s i n g provisions ( w h i c h may either encourage serious public

51

for evasion and a m b i g u i t y . Nevertheless, adjustments m back-

f l

;

pants o f these specialized roles w i l l n o t be the same as for o r d i n a r y citizens. Some a d d i t i o n a l adjustments i n background conditions

189

for a sense o f f u l l membership i n the political culture. Furtherms-^;

more, p u b l i c policies can increase the significance of this k i n d o f access. W h e n C-Span broadcasts congressional hearings, w h e n

libel laws ( w h i c h may i n t r o d u c e the risk for the media o f large

ÉÉ

190

A Serf-Reflective Satiety

The C o n d i t i o n s o f A c t i v i s t L i b e r t y

191

cable television in Canada broadcasts the daily Question Period

media). T h e effect w o u l d be objectionable because i t w o u l d effec-

in the Canadian House of C o m m o n s , when postai subsidies f a c i l i -

tively shut o u t certain groups f r o m the p o l i t i c a l dialogue and thus

tate delivery o f newspapers and magazines, then access to serious

amount t o s t r u c t u r a l m a n i p u l a t i o n .

p o l i t i c a l dialogue has been significantly increased. Public policies

M u t u a l voluntariness, w h e n applied t o speaker-audience inter-

encouraging or f a c i l i t a t i n g these innovations can d o a great deal

action, is i n t e n d e d , first, to p e r m i t those w h o w i s h to hear (or see

to increase o p p o r t u n i t i e s at the mass level to receive p o l i t i c a l l y

or experience) a given message to d o so, and second, t o p e r m i t

relevant messages." However, i m p r o v i n g access is n o t , by itself,

those w h o w i s h t o a v o i d a given message to do so. W h e n speaker

sufficient to effectively motivate engagement.

and audience b o t h w i s h to interact, we should aspire to facilitate

I n considering adjustments

we

that connection. But w h e n either wishes to avoid the other, then

s h o u l d aspire to a culture of participatory c i v i l i t y — a p o l i t i c a l

the interaction is not m u t u a l l y voluntary. This does n o t mean, of

culture where people learn to listen and respond o n the merits

course, t h a t those w h o w i s h n o t to hear a message should have a

i n a n atmosphere o f m u t u a l respect. Participatory

be

veto on the r i g h t o f others to express i t or to hear i t . B u t i t does

(a) i n speaker-

mean that some weight should be given to the p l i g h t of captive

audience interaction and (b) i n choices of preferred f o r m s o f ex-

audiences w h o may intensely w i s h to a v o i d receiving messages o f

pression (for a given c o n t r i b u t i o n to political dialogue).

a certain k i n d o r f r o m certain speakers. For example, Joel Fein-

encouraged

by patterns

to background conditions,

of mutual

voluntariness

civility

can

By "speaker," I mean the person expressing a message, whether

berg has catalogued three dozen disgusting acts t h a t he imagines

i t is spoken o r w r i t t e n and whether i t is p r i m a r i l y verbal or n o n -

people d o i n g o n a bus. M a n y o f these acts arc n o t likely t o be

v e r b a l . I n the interest o f facilitating mutual voluntariness, there

construed as acts o f expression, or at least as acts o f expression

w o u l d be grounds, o n occasion, f o r restricting the time, place,

intended t o contribute to p o l i t i c a l dialogue (copulation and the

o r manner o f expression, p r o v i d e d that the restrictions d i d n o t

eating o f p i c k l e d sex organs of various animals w o u l d seem to

themselves constitute s t r o n g m a n i p u l a t i o n . As a matter o f general

be i n this c a t e g o r y ) .

social practice, t w o caveats seem advisable. First, time, place, o r

acts before captive audiences because they d o n o t fall directly

14

There is n o difficulty about restricting such

manner restrictions should be applied i n a content-neutral manner

w i t h i n our argument, since they d o not constitute c o n t r i b u t i o n s to

whenever they m i g h t impinge o n contributions to p o l i t i c a l d i a -

p o l i t i c a l dialogue. H o w e v e r , we m i g h t imagine a countercultural

logue. I n that way, e x p l i c i t m a n i p u l a t i o n can be avoided. Hence,

theatrical t r o u p e that performs a variety of acts i n public consid-

if a p u b l i c p a r k is opened to private groups f o r the display of reli-

ered disgusting by the mainstream society—and t h a t articulates a

gious symbols, i t should be open to any groups w h o m i g h t w i s h

p o l i t i c a l message according to w h i c h those apparently disgusting

t o m o u n t such displays, but the p a r k m question c o u l d also, i n

acts can be considered symbolic contributions to p o l i t i c a l dia-

a content-neutral manner, be closed to all public displays. Sec-

logue. T h e y are even w i l l i n g , m the m i d s t of their disgusting acts,

o n d , care should be taken that such restrictions do not have the

to hand o u t l o n g and b o r i n g pamphlets e x p l a i n i n g the p o l i t i c a l

c u m u l a t i v e impact of effectively silencing a particular o p i n i o n or

significance they attribute to their performances.

v i e w p o i n t . Hence, to take an extreme case, i f a l l public places

I assume t h a t every act of expression w h i c h can be consid-

were closed to expression i n a content-neutral manner, then many

ered a c o n t r i b u t i o n to p o l i t i c a l dialogue has attached to i t some

dissenting voices and fringe o p i n i o n s m i g h t be silenced entirely

actual o r possible verbal f o r m u l a t i o n of that c o n t r i b u t i o n . T h e

( w h i l e more mainstream opinions could still rely o n the mass

most effective strategics of c o m m u n i c a t i o n w i l l , however, some-

192

The C o n d i t i o n s o f A c t i v i s t L i b e r t y

A S e l f - R e f l e c t i v e Society

times be " s y m b o l i c " or even completely n o n v e r b a l .

Ji

I n a given

context, acts that may not o r d i n a r i l y be considered p o l i t i c a l at all may carry a meaning w h i c h dramatizes a given c o n t r i b u t i o n to p o l i t i c a l dialogue, a c o n t r i b u t i o n w h i c h m i g h t otherwise have far less e m o t i o n a l or intellectual effect on others. For example, blacks asking to be served coffee at segregated lunch counters had far m o r e effect at the t i m e than any number of speeches. G r a n t i n g t h a t many i m p o r t a n t c o n t r i b u t i o n s to p o l i t i c a l dialogue may be largely nonverbal and, i n that sense, " s y m b o l i c " does n o t mean t h a t people should have an inviolable right to select their preferred f o r m o f expression w i t h o u t considering the effects on others. T h e system should be constructed so as to give weight to their preferences, but also to the rights and reactions of others. Even w h e n the countercultural theater t r o u p e ciothes its performance i n the garb of p o l i t i c a l dialogue, i t does n o t have the right to unilaterally determine t h a t its preferred f o r m of expression be imposed o n captive audiences. M u t u a l voluntariness w o u l d p e r m i t some m o d i f i c a t i o n i n the f o r m of expression w h e n its i n v o l u n t a r y recipients object strongly. Presumably, sites can be arranged f o r v o l u n t a r y v i e w i n g . Less offensive forms of expression f o r essentially the same message m i g h t be arranged f o r captive audiences ( p o l i t i cal pamphlets being d i s t r i b u t e d is one t h i n g , public c o p u l a t i o n i n the interests o f p o l i t i c a l theater is another). B u r n i n g a d r a f t card and assassinating a public official m i g h t b o t h be considered acts of symbolic political expression, i n cert a i n contexts. The f o r m e r involves quite m i n o r effects o n others, w h i l e the latter involves grave effects that should be considered intolerable under most conceivable conditions. The latter w o u l d itself be an act of e x p l i c i t m a n i p u l a t i o n . T h e system should operate so as to give some w e i g h t t o the speaker's preferred f o r m o f expression, but this can easily be o u t w e i g h e d , as i n the p o l i t i c a l assassination case, by the grave interests and rights of others. Presumably, o p p o s i t i o n to the target and to the regime can be expressed i n many other ways, so that the basic message o f a given c o n t r i b u t i o n to political dialogue can be

193

given a hearing, even i f it is only t h r o u g h the purely verbal expression of o p p o s i t i o n (or t h r o u g h some choice of tactics along a whole range of tamer acts). The basic p o i n t is that practices facilitating m u t u a l v o l u n t a r i ness should serve, i n the long t e r m , to moderate the intensity o f conflicts and cleavages and to facilitate m u t u a l t o l e r a t i o n . For that reason, they may help a self-reflective p o l i t i c a l culture to m a i n t a i n itself so as to b r i n g the argument w i t h i n the feasible set, at least for ideal theory. Just as freedom o f association o n the interpersonal or smallgroup level s h o u l d be conceived as m u t u a l l y v o l u n t a r y (to be forced t o attend a meeting I disapprove o f is to have a penalty i m posed o n me), so should communications at the mass level aspire to the same m o d e l of m u t u a l voluntariness. If I d o not l i k e the messages o n channel X , I can t u r n the d i a l ; i f I am offended by certain v i d e o tapes, I a m under no compulsion to play t h e m i n my h o m e ; i f I d o n o t like materials I receive i n the m a i l , I can t h r o w t h e m away o r request that I be removed f r o m certain m a i l i n g lists; i f I d o n o t like a telephone solicitation, I can hang u p or even request an unlisted number. I n all of these cases, I cannot be protected f r o m the bare knowledge that messages or materials I object to exist. B u t that bare knowledge is necessary f o r the m o d e l of m u t u a l l y v o l u n t a r y association; it is necessary f o r me to be able to decide whether or n o t 1 w i s h to be o n the receiving end. For that reason, bare knowledge should not by itself be considered a penalty. I n all o f these cases, there is a t w o f o l d reason to be solicitous about captive audiences. First, d o i n g so c o n f o r m s to the model of m u t u a l voluntariness; departures f r o m t h a t model risk exposing people to penalties because of their views and, hence, t o e x p l i c i t m a n i p u l a t i o n . Second, consideration for captive audiences helps to c o n t r i b u t e t o an atmosphere o f toleration and m u t u a l respect. B o t h are relevant because they facilitate an effective hearing for divergent views and also strengthen the system's capacity to survive the rigors o f self-critical debate. For all of these reasons, those

194

195

The C o n d i t i o n s of A c t i v i s t L i b e r t y

A SeH-Refl é c r i v e Society

w h o w i s h t o avoid messages they find strongly offensive should

san amplifiers w i l l often, as an i n s t i t u t i o n a l matter, be more open

have the o p p o r t u n i t y to d o so.-^

to t r a n s m i t t i n g diverse materials than a single label w o u l d suggest

T h u s far, we have focused o n opportunities to receive but n o t t o express p o l i t i c a l messages. O p p o r t u n i t i e s for expression can be

(consider, for example, the diversity of material broadcast by the C h r i s t i a n Broadcast N e t w o r k ) ,

considered at three levels: interpersonal, small-group, and large-

Decisions about amplification should be diverse and compet-

g r o u p o r mass-audience. The ban o n e x p l i c i t m a n i p u l a t i o n a p p l i e d

ing, and they should be institutionalized so as t o represent con-

to beliefs o r v o l u n t a r y associations already provides p r o t e c t i o n

scientious judgments about the m e r i t , newsworthiness, or i m p o r -

for expression at the first t w o levels. T h e difficulties arise w i t h the

tance of the materials a m p l i f i e d . Partisan amplifiers should be

t h i r d . I n a technologically complex society, significant speech is

balanced by a diversity of competing channels. N e w technolo-

seldom exemplified by the isolated m a n on a soap b o x , the p a m -

gies, p a r t i c u l a r l y cable, satellite transmission, v i d e o , and video-

phlet d i s t r i b u t e d d o o r to door, or the citizen speaking up at a

text, offer the promise o f greater diversity and easier access.

t o w n meeting. A l l o f these activities are i m p o r t a n t . But they are

is i m p o r t a n t t h a t no g r o u p w i t h a significant o r intense f o l l o w i n g

It

3

r o u t i n e l y d w a r f e d i n their influence by television news programs

that attempts to participate i n conscientious dialogue should con-

a n d documentaries, p o l i t i c a l advertising campaigns, mass c i r c u -

tinually lack access t o a m p l i f i c a t i o n . Given the diversity of chan-

l a t i o n newspapers, magazines, and journals of o p i n i o n , and cable

nels, b o t h broadcast and p r i n t , this is not an overly demanding

television channels.

requirement.

T h e d i f f i c u l t y is t h a t p o l i t i c a l dialogue can be subjected to

I n the present A m e r i c a n context, p o l i t i c a l action committees

structural m a n i p u l a t i o n depending o n access to mass o r large-

pose a p r o b l e m . As organizations designed to aggregate small con-

scale a m p l i f i c a t i o n . I f we can a l l speak, but some speak w i t h a m -

t r i b u t i o n s , PACs d o n o t threaten to overamplify a few i n d i v i d u a l l y

p l i f i e d voices, those w h o consistently speak w i t h o u t a m p l i f i c a t i o n

wealthy patrons. B u t the p r o l i f e r a t i o n of committees representing

can be effectively silenced. The difficulty can be ameliorated some-

certain ideologies and interests poses a threat not o n l y t o the terms

w h a t by a decentralization o f arenas for speech. Local

of p o l i t i c a l c o m p e t i t i o n , but also to the prospects t h a t groups

meetings,

local organizations, local access to cable television stations, r a d i o

w i t h o u t such massive resources can o b t a i n a hearing at a l l .

t a l k shows, local newspapers w i l l i n g to a m p l i f y the views o f small

background c o n d i t i o n s c o u l d be adjusted to greatly increase the

g r o u p s — a l l can make a c o n t r i b u t i o n . Nevertheless, access t o a m -

diversity and ideological balance of PACs, this danger c o u l d be

p l i f i c a t i o n to mass audiences remains a crucial issue, p a r t i c u l a r l y

averted. A n o t h e r s o l u t i o n w o u l d be to reimpose c o n t r i b u t i o n and

for the character of national p o l i t i c a l dialogue.

expenditure l i m i t a t i o n s of the k i n d the U.S. Supreme C o u r t has

Organizations and institutions that have the a b i l i t y to reach

3 8

If

o v e r t u r n e d . * W h i l e this w o u l d place a l i m i t o n access to a m p l i f i 3

of p o l i t i c a l d i a -

cation (and i n t h a t sense constitute a sacrifice i n free expression),

logue. A m p l i f i e r s w i l l differ i n their magnitude and degree of

if i t were imposed i n a content-neutral manner, i t w o u l d n o t con-

partisanship ( p r o m o t i n g an acknowledged p o i n t of view) o r n o n -

stitute e x p l i c i t m a n i p u l a t i o n i n our sense. Hence, i t w o u l d not

partisanship (attempting t o be neutral a m o n g v i e w p o i n t s i n p o l i t i -

constitute a sacrifice i n the dimensions of l i b e r t y as defended here.

cal dialogue). B o t h of the latter classifications are simplifications.

In fact, to the extent t h a t such l i m i t a t i o n s w o u l d effectively p r o -

mass audiences can all be considered amplifiers

T h e nonpartisan amplifiers w i l l have i m p l i c i t value c o m m i t m e n t s e m b o d i e d i n their patterns o f e d i t o r i a l decision m a k i n g ; the p a r t i -

tect p o l i t i c a l dialogue f r o m structural m a n i p u l a t i o n , they w o u l d . be justified by the principles developed here.

196

A SeEf-Reflertive Society

Vouchers and Opinion Polls

197

H o w e v e r , we need to t h i n k more creatively about adjustments

dialogue o f organized and competing voices in the p o l i t i c a l w o r l d

i n b a c k g r o u n d conditions that m i g h t energize c o m p e t i t i o n a m o n g

at large. T o create such a dialogue, broader changes w i l t have

groups, i n s t i t u t i o n s , and issue entrepreneurs so as to give voice to

to be made i n the d i s t r i b u t i o n of resources and of incentives for

the interests of groups that m i g h t otherwise be left out of the dia-

political o r g a n i z i n g . We t u r n to t w o such proposals i n the next

logue. One focus for such i n n o v a t i o n is government itself. I n s t i t u t i o n a l incentives can be created t o get government to speak i n c r i t i -

section.

cism o f itself and o n behalf o f v i e w p o i n t s or interests that m i g h t 3.6 Representation

otherwise be left o u t . As Charles A . Reich noted in the 1960s:

Deliberative Perhaps the most interesting and significant innovation m dealing with freedom of expression is the possibility that government itself can be structured so as to foster differences. A government department could have i n it a unit designed to represent a particular point ot view, such as a consumers bureau in the Agriculture Department, or a bureau of natural beauty in the highway department. Some of the communityaction programs connected w i t h the poverty program find themselves promoting opposition to the policies of other public agencies; thus diversification may grow up naturally within the seeming monolith of government." 1

Vouchers Opinion

and

Polls

Representation vouchers offer an i n n o v a t i o n addressed to the p r o b l e m of h o w resources for political organization are d i s t r i b uted, i have already mentioned the role vouchers c o u l d play i n education.' Philippe Schmitter and others have proposed that they be applied to the general p r o b l e m of p o l i t i c a l representation." W h i l e Schmitter's theoretical preoccupations are different f r o m mine, his proposal adds plausibility to the n o t i o n that b a c k g r o u n d conditions c o u l d be adjusted to facilitate a self-reflective p o l i t i c a l culture. Suppose every member of society is given a voucher to repre-

O p p o s i n g voices can be created w i t h i n government itself. For

sent her chosen interests. T h e voucher must be substantial enough

example, a government bureau o r agency could be charged w i t h

that organizations w i l l w a n t t o compete f o r each voucher. The

m o n i t o r i n g the c o n d i t i o n o f the homeless or the hungry, o r w i t h

vouchers can o n l y be cashed i n , say, once a year by organizations

m o n i t o r i n g and r e p o r t i n g o n d i s c r i m i n a t i o n against homosexuals.

that satisfy some m i n i m u m regulatory requirements ensuring that

Such arms of government m i g h t routinely end up c r i t i c i z i n g other

the organizations are not fraudulent, that they are n o t - f o r - p r o f i t ,

parts of government. If they spoke o n behalf of groups or interests

and

that m i g h t otherwise lack an effective hearing, such innovations

c l a i m t o represent. If every member has a voucher, then there

c o u l d c o n t r i b u t e to the prevention of structural m a n i p u l a t i o n .

w i l l be incentives f o r organizations to compete w i t h each other

that they act appropriately to represent the interests they

H o w e v e r , the success o f such innovations w o u l d depend o n the

to speak f o r the interests of all those w h o are n o w unorganized,

broader political environment. We need to t h i n k about incentives

including the underclass, the dispossessed, the invisible, the q u i -

for creating voices and organizational resources for those same

escent. Some organizations may w e l l be created just to m o n i t o r

g r o u p s outside government. W i t h o u t attention to the broader en-

other organizations. Provided that the barriers to entry i n this

v i r o n m e n t of interest groups and p o l i t i c a l incentives, there is the

c o m p e t i t i o n are kept l o w , there w i l l be a c o n t i n u a l d y n a m i s m i n

danger that new offices o r agencies w i l l simply be captured by

the creation of organizations and, hence, i n the creation of effec-

those they are meant to m o n i t o r o r criticize. C o m p e t i t i v e voices i n

tive voices, w h e r e before there were only silence and indifference.

government are likely t o thrive only i f they are part of a broader

Even n o w , there is e x t r a o r d i n a r y diversity i n the organizations

A S e l f - R e f l e r t i v e Society

Vouchers a n d Opinion Polls

199

that presume to speak knowledgeably tor the interests of A m e r i -

spent o n a n y t h i n g else. I n tact, if computerized records were kept

cans: the N a t i o n a l O r g a n i z a t i o n ot W o m e n , the Sierra C l u b , C o m -

about w h o has assigned her voucher, the system could be orga-

m o n Cause, the N a t i o n a l U r b a n C o a l i t i o n , the A F L - C I O , the

nized so that the cost o t f a i l i n g to participate w o u l d be the possible

A m e r i c a n Enterprise Institute, the Heritage F o u n d a t i o n , People

inconvenience o f c o n t i n u e d solicitations and c o m p e t i t i o n f o r rep-

f o r the A m e r i c a n Way, the Jefferson Institute, the C o a l i t i o n f o r the

resentation. People w o u l d have a strong incentive to t h i n k about

Homeless, the N a t i o n a l R i g h t to Lite C o m m i t t e e , Beyond War,

the p r o b l e m and to make a decision. A t t e m p t i n g to be a tree-rider

and the R o c k f o r d Institute are only an eclectic list. Even n o w ,

( m the sense of d o i n g nothing) m i g h t w e l l be more costly t h a n

some o f these attempt to get a hearing f o r those w h o lack resources

p a r t i c i p a t i n g . N o n p a r t i c i p a t i o n w o u l d produce its o w n negative

or even self-consciousness. T h i n k h o w neglected, or merely latent,

incentive, its o w n m o t i v a t i o n to overcome apathy.

coalitions c o u l d be m o b i l i z e d by the c o m p e t i t i o n for vouchers.

M o s t i m p o r t a n t , representation vouchers w o u l d alter the pre-

l b create a self-reflective p o l i t i c a l culture, w e w o u l d have t o

sent scarcity o f organizational resources, a scarcity n o w skewed i n

overcome several problems. First, the collective action p r o b l e m

favor o t those w h o have other resources. Just as class action suits

stands as an i m p e d i m e n t to i n d i v i d u a l p a r t i c i p a t i o n . Second, scar-

and p u b l i c interest research organizations have partially opened

city and m a l d i s t r i b u t i o n ot organizational resources make i t d i f -

up the representation and advocacy of interests that were p r e v i -

ficult f o r some groups to engage m the dialogue because they

ously u n v o i c e d , representation vouchers w o u l d create incentives

must compete f o r expertise and an effective hearing. T h i r d , some

f o r the c o n t i n u a l , competitive creation o t new organizations.

' " g r o u p s " may never get to the point where they constitute t h e m -

Representation vouchers focus o n the p o l i t i c a l e n v i r o n m e n t

selves as groups. They lack the resources and infrastructure to

w i t h i n w h i c h politicians operate. W h a t about the political process

organize; they may lack the collective consciousness even to real-

itself? I have already mentioned the general argument tor democ-

ize the need.

r a c y — t h a t by m a k i n g public o p i n i o n consequential, democracy

I t is plausible that representation vouchers, w h e n a p p l i e d i n

creates incentives f o r interests to be given voice and f o r people to

c o n j u n c t i o n w i t h a l l o f the other adjustments i n b a c k g r o u n d con-

voice their interests. B u t I have not said m u c h about the structure

d i t i o n s I have specified, w o u l d d o a great deal to respond to these

of democratic i n s t i t u t i o n s .

three basic problems over the l o n g t e r m . I do not propose repre-

One reason f o r not being more specific is that, o n m y argument,

sentation vouchers as a panacea, but as an example o t the k i n d

the a p p r o p r i a t e structure w i l l be the one that comes to be accepted

of i n s t i t u t i o n a l i n n o v a t i o n that could b r i n g about the conditions

self-reflectively according to all of our conditions. Ffence, many

f o r a self-reflective society. T h e central challenge is o v e r c o m i n g

precise details cannot be determined i n advance. H o w e v e r , our

the p r o b l e m o f s t r u c t u r a l m a n i p u l a t i o n , o t g i v i n g effective voice

task here is to approach a different question: W h a t i n s t i t u t i o n a l

t o the interests across every significant cleavage m the society.

i n n o v a t i o n s w o u l d facilitate the development

Vouchers w o u l d give organizations incentives to take seriously the

p o l i t i c a l c u l t u r e i n the first place? Representation vouchers w o u l d

interests o f those w h o are n o w left out of the dialogue. O r , if estab-

create incentives for interests to be voiced that m i g h t otherwise

lished organizations failed to adjust, issue entrepreneurs w o u l d

be left out o t the dialogue. Institutionalizing public self-criticism

of a self-reflective

have a s t r o n g incentive to fill the gap. Correspondingly, i n d i v i d u -

w i t h i n the government itself blunts the force w i t h w h i c h a gov-

als w o u l d have no incentive to be tree-riders, because the cost o f

e r n m e n t m i g h t otherwise, m o n o h t h i c a l l y , i m p r i n t its doctrines o n

p a r t i c i p a t i o n is merely the assignment of a voucher that cannot be

citizens. Yet I have said n o t h i n g about innovations within

the p r o -

200

Conclusion

A S e l f - R e f l e c t i v e Society

cess o f campaigns and elections, innovations that m i g h t give m o r e effective voice t o interests across a i l the major cleavages of t h e society. T o make the issue m o r e concrete, let us consider a specific b u t far-reaching i n n o v a t i o n — t h e possibility o f inserting deliberative o p i n i o n polls i n t o the presidential n o m i n a t i n g process as well as i n t o the n o m i n a t i n g process o f offices at other levels. A n o r d i n a r y o p i n i o n p o l l models w h a t the p u b l i c t h i n k s , given h o w little it k n o w s o r pays a t t e n t i o n . A deliberative p o l l models w h a t the p u b l i c would

t h i n k i f i t had a more adequate chance to assess the

our present m e t h o d of beginning the p r i m a r y season, the I o w a caucuses and N e w H a m p s h i r e p r i m a r y . Neither state is representative of the entire c o u n t r y ; b o t h states have far less m i n o r i t y and urban populations t h a n the country as a w h o l e . F u r t h e r m o r e , neither event is deliberative at present. They are d o m i n a t e d by repetitive s t u m p speeches, money, p o l i t i c a l organizations, s h r i n k ing sound-bites, and attack videos. G i v e n the demonstrated role of m o m e n t u m i n the presidential selection process, early victories and defeats are greatly magnified i n their effect o n the eventual outcome.

4

I f the first event were representative and deliberative,

many o f the irrationalities i n our present process could be avoided,

questions at issue. Imagine a new start to o u r season of presidential selection. T a k e a n a t i o n a l r a n d o m sample of the citizen voting-age p o p u l a t i o n a n d transport t h e m to a single site where they can interact i n person, over an extended p e r i o d , w i t h the candidates f o r presid e n t . Prepare the delegates beforehand w i t h briefing materials 3

o n the issues. Have the candidates respond to questions i n s m a l l g r o u p sessions b r o k e n d o w n by issue areas and p o l l the delegates about the merits o f the candidates, breaking o u t the results by p a r t y a f f i l i a t i o n (Democrats, Republicans, and independents). Such an event w o u l d t u r n the " i n v i s i b l e p r i m a r y , " the p e r i o d o f jockeying by the candidates before the first official events, i n t o a n a t i o n a l l y representative a n d deliberative event. Because i t is n a t i o n a l l y representative, i t w o u l d provide the candidates

201

with

incentives t o address the interests o f groups across a l l the major cleavages i n the country, f a c i l i t a t i n g o u r effective-voice c o n d i t i o n . Because i t is deliberative, its results m o d e l w h a t w o u l d be

even i f the rest of the process were to continue precisely as does the current system. The race f o r the presidency is n o w the major arena f o r issue entrepreneurship i n A m e r i c a n society, i f i t could be t u r n e d i n t o a deliberative process addressed t o interests across ait the major cleavages of the society, then many of the results of a self-reflective political culture c o u l d be a p p r o x i m a t e d . N e i t h e r the deliberative o p i n i o n p o l l nor the representation voucher is offered as a panacea f o r defects i n o u r present p o l i t i c a l culture. Rather, b o t h of these innovations exemplify the general strategy proposed here: the i n d i r e c t strategy o f changing incentives i n the b a c k g r o u n d conditions f o r p o l i t i c a l dialogue and p a r t i c i p a t i o n . These t w o i n n o v a tions, w h e n c o m b i n e d w i t h the adjustments i n b a c k g r o u n d c o n d i tions discussed earlier, give verisimilitude to my c l a i m that a selfreflective society is a feasible ideal for solutions t o the legitimacy p r o b l e m w i t h i n a m o d e r n large-scale nation-state.

achieved, hypothetically, i f the entire society grappled t h o u g h t f u l l y w i t h the issues i n the campaign. W h i l e i t may be U t o p i a n t o expect an entire society, even under favorable conditions, t o be aroused t o active p o l i t i c a l p a r t i c i p a t i o n i n a large-scale n a t i o n state, i t is n o t Utopian f o r a representative sample to be sufficiently aroused so as t o m o d e l the conclusions the society's n a t i o n a l l y representative deliberations w o u l d come t o . Clearly, such an event w o u l d constitute an i m p r o v e m e n t over

3.7

Conclusion

My proposals are intended n o t t o offer a b l u e p r i n t , but t o dramatize the v i a b i l i t y of a general idea: that a freely self-examining p o l i t i c a l culture can provide the foundations f o r its o w n legitimacy. Such a p o l i t i c a l culture w o u l d be engaged i n a c o n t i n u i n g , collective process of self-criticism. Its practices w o u l d t h e n have

202

A S e l f - R e f l e f t i v e Society

Conclusion

203

a c l a i m t o reasonableness—a c l a i m defined by the fact t h a t its

feave us w i t h sheer i n t u i t i o n i s m . O n the contrary, the many p u b l i c

consensus, even i f i t is merely a procedural consensus o n p o l i t i c a l

institutions of a legitimate p o l i t i c a l system w o u l d make specific

practices, has survived unmanipulated c r i t i c a l scrutiny.

determinations that we were all obligated t o u p h o l d .

Such practices represent a self-reflective, collective determina-

theory of legitimacy does not yield a systematic t h e o r y of

t i o n o f the d i s t r i b u t i o n o f essential benefits and burdens. W i t h

justice. Instead, i t yields a theory o f the fully legitimate p o l i t i c a l

exit u n i m p e d e d as an o p t i o n , each member of the society w h o re-

system. Such a system, i n all its many parts, can produce justice

ceives essential benefits incurs a m o r a l o b l i g a t i o n to live up to the

defined i n a l l its concrete particularity. I t is the justice that comes

requirements o f membership so l o n g as she remains a member. I f

f r o m people o p e r a t i n g i n roles whose norms have achieved self-

all those subject to the a u t h o r i t y of the state remain obligated i n

reflective legitimacy. T h e result is the collective reasonableness

this way, then the system is legitimate

of a p o l i t i c a l system e x a m i n i n g — a n d accepting—-itself t h r o u g h

in the sense that everyone

is o b l i g a t e d to s u p p o r t i t . A legitimate p o l i t i c a l system defines a range of practices for m a k i n g decisions i n various arenas of life. Some choices may be left to the m a r k e t , some to i n d i v i d u a l decision, some to a u t h o r i t a tive decision by one i n s t i t u t i o n or another. The general questions posed by the theory o f justice w i l l be decomposed i n t o many parts, and i n t h a t w a y relegated t o many decision makers i n many roles. T o the extent that their decisions correspond to the norms o f e v a l u a t i o n b u i l t i n t o the w i d e l y accepted legitimate practices, members of the society are obligated to u p h o l d t h e m . If m y argument has succeeded, then w e have f o u n d a w a y out o f the three false dilemmas w i t h w h i c h we started: absolutism versus r e l a t i v i s m , religion versus a m o r a l i s m , and systematic theory versus m t u i t i o n i s m . First, the argument f o r legitimacy developed here does n o t require the t r u t h o f absolutist claims o f natural rights, b u t neither does i t legitimate all w i d e l y accepted social practices i n the manner of sheer relativism. O n the contrary, its r e q u i r e d conditions f o r the self-reflective development o f p o l i t i c a l cultures w o u l d block the claims to legitimacy of many objectionable social practices. Second, i t does not i m p o r t religion i n t o o u r p u b l i c dialogue, but neither does i t leave us w i t h amoralism. O n the c o n t r a r y , i t w o u l d determine m o r a l obligations o f membership for us a l l (while leaving all of us free to pursue salvation i n diverse, private ways free of m a n i p u l a t i o n ) . T h i r d , i t does n o t live up t o the expectations o f systematic theory, but neither does i t

u n m a n i p u l a t e d dialogue.

Notes

i.i

Introduction

1 . See Citizens and Politics: The View from Main Street America (prepared for the Kettering Foundation by the Harwood Group, June 1991, Dayton, Ohio). 2. A good indicator of thje level of activity can be seen in the massive annotated bibliography about just one book, John Rawls's A Theory of Justice. See David T. Mason and j . H . Wellbank./o/w Rawls and His Critics (New York: Garland, 1982). 3. See Leo Strauss, Natural Right and History {Chicago: University of Chicago Press, 1953) and Allan Bloom, The Closing of the American Mind (New York: Simon and Schuster, 1987}. The cannibalism example is from Strauss, "Relativism," in Helmut Schoek and James W. Wiggins, eds., Relativism and the Study of Matt (Princeton; Van Nostrand, 1961). 4. For a modulated version of this argument (with an assessment of the more extreme versions), see Richard John Neuhaus, The Naked Public Square; Religion and Democracy in America (Grand Rapids, M i c h . : William B. Erdmans,1984). 5. The focus of part 2 w i l l be methodological in the sense that i t w i l l concern decision procedures for resolving subsfantive issues. 6. In essence, the priority problem concerns what principles should outrank other principles in determining the basic priorities of a just society. If more than one first principle is proposed, fundamental moral conflicts can be avoided through the device of "lexical" ranking. See John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), sections 7 and 8.

Notes t o Pages

206

Notes to Pages

6-10

1.2 The Problem of Value 1. For more on justice between societies, see Charles R. Beitz, Political Philosophy and biternattonal Relations (Princeton: Princeton University Press, 1974) and Henry Shue, Baste Rights (Princeton: Princeton University Press, 1980). 2. Bruce A. Ackennan, Social lusttce in the Liberal State (New Haven and London; Yale University Press, ¡ 9 8 0 ) . 3. Or, as I note m section 2.7, these difficulties can be avoided tor want-regardmg criteria, bur at the cost of limiting judgments to those changes sanctioned bv the l'areto principle, ' i his latter restriction would entail silence on most issues of social importance (whenever some gain and some lose, the change would be considered Pareto-noncomparable). 4. E. L. Thorndike, Human Nature and the Social Order (New York: Macmillan, 1940), pp. 1 7 0 - 7 1 . f am indebted to Doug Rae for bringing Thorndike to mv attention. 5. See the more detailed discussion of "the calculus of pains, deprivations and frustrations" m Kdward L. Thorndike, "Valuations of Certain Pains, Deprivations and Frustrations," Journal of Genetic Psychology 51 (1937), pp. 2 2 7 - 3 9 . 6. See, for example, E. f. Mishan, hconotmcs for Social Decisions: Elements of Cost-Benefit Analysis (New York: Praeger, 1973). 7. See section 2.7 for more on this issue. 8. For a particularly clear-headed account, see Gerald Dworkin, "Paternalism," tn Peter Lasiett and James S. Fishkm, eds.. Philosophy, Politics, and Society, 5th series (New Haven and London: Yale University Press, 1979}. I take the terminology of "want-regarding" and "ideal-regarding" from Brian Barry's excellent discussion m Political Argument (London: Routledge and Kegan Paul, 1965). For more on these issues, see sections 2.6 and 2,7 below. 9. Appropriate judgment, but not in the sense ot systematic theory. The result w i l l , however, satisfy the criteria for an acceptable theory specified in section 2.1. 10. SeeBarrington Moore, j r . , Injustice: The Social Bases of Obedience and Revolt (White Plains, N.Y.: M . E. Sharpe, 1978).

10-13

207

of damages is compensatory. Damages are measured by comparing the condition plaintiff would have been m, had the defendants not been negligent, with plaintiffs impaired condition as a result of the negligence. The infant plaintiff would have us measure the difference between his lite with detects against the utter void ot non-existence, but it is impossible to make such a determination" (Gleitman v. Cosgrove[1967},

111 A. 2d 689,692).

4. A possible exception would be cases ot disability so severe that one mieht claim such a hte is worse than nonexistence. The difficulty of dealing with this kmc! of counterfactual is dramatized bv a Yiddish saymg quoted by Nozick: —-"Lite is so terrible; i t would be better never to have been conceived." —"Yes, hut w h o is so fortunate? N o t one m a thousand." {Anarchy, State and Utopia [New York: Basic Books, 1974], p. 337) 5. This argument extends one i made m "Justice between Generations: The Dilemma ot Future Interests," Bowling Green Studies in Applied Philosophy 4 {1982), pp. 2 4 - 3 3 . Derek Parfit has developed a very fertile and original attack on the identity-specific view in his Reasons and Persons (Oxford: O x f o r d University Press, 1984). M y discussion here has benefited greatly trom reading Parfit's w o r k . In "justice between Generations" I offer a more extended critique of his advocacy ot what I call an identity-independent solution. 6. Thomas Schwartz, "Obligations to Posterity," in R. f. Sikora and Brian Barry, eds., Obligations to Puture Generations (Philadelphia: Temple UniversityPress, 1978), pp. 3-13, esp. p. 6. 7. See, for example, Curlender v. Bio-science Laboratories (1980), in which a limited claim for damages was granted on appeal: " I n essence, we construe the 'wrongful life' cause of action by the defective child as the right of such child to recover damages for the pam and suffering to be endured during the limited lite span available to such a child and any special pecuniary loss resulting trom the impaired condition" (165 Cal. Rptr. 477,489). T w o other notable cases are Turpm v. Sortini {[19821, 31 Cai. 3d 220) and Procanik by Vrocanik if. Cillo (New Jersey (1984j, 478 A. 2d 755). Note the argument for considering damages to the child rather than merely damages to the parents: "We believe it would be illogical and anomalous to permit only parents and not the child, to recover for the cost of the child's own medical care.

1.3 Future

Generations

1. Below, I call the conceptions in question the identity-specific and the identityindependent conceptions of human interests. 2. This section draws on my contribution to Peter Lasiett and fames Fishkin, eds., justice between Age Groups and Generations, vol. f> of Philosophy, Politics, and Society (New Haven: Yale Umversitv Press, 1992). 3. As the majority in a major "wrongful life" case noted: "The normal measure

It such a distinction were established, the afflicted child's receipt of necessary medical expenses might well depend on the wholly fortuitous circumstance of whether the parents are available to sue and recover such damages or whether the medical expenses are incurred at a time when the parents remain legally responsible for providing such care" {Turpm v. Sortmu 238). 8. We w i l l return to interpersonal comparisons in section 2.7. 9. See Parfit, Reasons and Persons, part 4.

203

Notes t o P a g e s

14-21

10. Arthur Koestler, Darkness at Noon, trans. Daphne Hardy (New York: Macmilian, 1941 j , pp. 161-62. 1 was reminded of Koestler's treatment of this issue by foel Feinberg's excellent essay "Rawls and Intuitiomsm" in Norman Daniels, ed., Reading Rawls: Critical Studies of "A Theory of Justice" (New York: Basic Books, 1975). 11. Peter Singer, Practical Ethics (Cambridge: Cambridge University Press, 1979}, pp. 8 0 - 8 1 . 12. For an extended discussion of the character and limitations of purely structural principles, see my Tyranny and Legitimacy (Baltimore and London: Johns Hopkins University Press, 1979}, chaps. 10 and 11. 13. Jonathan Bennett, " O n Maximizing Flappmess," in R. Sikora and B. Barry, eds., Obligations

to puture Generations (Philadelphia: Temple University

Press, 1978}, p. 62. 14. 1 take the term harm principle to refer to any of the standard variations on M i l l ' s "one very simple principle" that "the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection" {On Liberty, in Utilitarianism, On Liberty and Other Writings, edited with an introduction by Mary Warnock [ N e w York; New American Library, 1962], p. 135). For a systematic account of variations on the harm principle, see Joel Feinberg, The Moral Limits of the Criminal Late ( O x f o r d : Oxford University Press, 1985).

Notes t o Pages 2 2 - 2 9

209

organ donation, see my "Justice versus Human Rights," Social Philosophy and Policy 1, no. 2 (Spring 1984), pp. 103-07. 7. Brian Barry, Political Argument (London: Rotitledge and Kegan Paul, 1965), p. 43. 8. See Laurence j . Lafleur, introduction to Jeremy Bentham's An

Introduction

to the Principles of Morals and Legislation (New York: Hainer Press, 1948), p.

XI.

9. See Amartya Sen, On Economic Inequality (New York: Norton, 1973). 10. The reference to Rawls is to A Theory of Justice (Cambridge: Harvard U n i versity Press, 1971).The delightful properties of: Ackermanian manna are discussed in Bruce A. Ackerman's Social Justice in the Liberal State (New Haven and London: Yale University Press, 1980). 11. For a more detailed argument to this effect, see my Beyond Sub/ective Morality (New Haven and London: Yale University Press, 1984). 12. Rae, " M a x i m m , " p. 640. 13. I t also violates the weaker and more general condition of acychcity (which rnies out cycles whether or not thev depend on the indifference relation). 14. This cycle should not be surprising to students of the classic voting paradox. In the table below, alternatives W , X, Y, Z can be thought of as chosen by people A, B, C, D or by principles A , B, C, D. Whether we think of them as people or as principles, we can. use the rankings at the left to get a cycle (the rankings can be thought of as utilities, with higher numbers being higher).

IA Structure 1. In this section i rely on arguments I developed in "The Complexity of Simple Justice," Ethics 98, no. 3 (April 1988), pp. 4 6 4 - 7 1 .

Rankings

Principles

(or Utilities^

(or People)

2. For more on the assignment problem, see section 1.5. A

B

C

D

k m , eds., Philosophy, Politics, and Society, 5th series (New Haven: Yale Uni-

3

W

Z

Y

X

versity Press, 1979). See also his " M a x i m m justice and an Alternative Principle

2

X

W

Z

Y

of General Advantage," American Political Science Review 69 (fune 1975),

1

Y

X

W

Z

pp. 6 3 0 - 4 7 ,

0

Z

Y

X

W

3. Douglas Rae, ''A Principle of Simple justice," in Peter Laslett and fames Fish-

4. H . L. A . Hart, "Between Utility and Rights," in Alan Ryan, ed., The Idea of Lreedom: Essays in Honor of Isaiah Berlin (Oxford: O x f o r d University Press, 1979), p. 77. 5. Ibid., p.78. 6. See, for example, Gilbert Harman, The Nature of Morality (New York: Oxford University Press, 1977), p. 3, and Judith jarvis Thomson, Rights, Restitution, and Risk (Cambridge: Harvard University Press, 1986), p. 95. See also Philippa Foot, "The Problems of Abortion and the Doctrine of the Double Effect," Oxford Review 5 (19671. For some other variations on involuntary

It does not matter whether we are discussing people voting or the rankings determined by principles. Each of our minimum tests takes three of the principles together as sufficient tor an alternative to be morally preferred. On either interpretation, we can go from Z to Y, from Y to X, from X to W, and from W back to Z through support of three out of four in each case. We can move trom Z to Y (by principles A, C, D ) , from Y to X (by principles A, B, D ) , from X to W (by principles A , B, C}, and from W back to Z (by principles B, C, D}. 15. For more on this notion of "ideals without an ideal," see the concluding chap-

210

Hofes l o Pages 3 0 - 3 3

ters of my Beyond Subjective Morality and Justice, Equal Opportunity, and the Family (New Haven and London: Yale University Press, 1983).

Notes to Page 34

211

8 Í am assuming throughout this argument that there are background conditions of social and economic inequality m the adult generation. M v discussion focuses on equality ot opportunities, not equahtv ot outcomes. Equality of op-

1.5 Assignment 1, While it is true that we may expect systems of assignment to have complex empirical effects on the structure of distribution, it is nevertheless possible to match structurally identical states of affairs where in one sequence we have no objectionable assignment practices, and in the second we do.

portunities is a rationing ot chances to be unequal, It there were no inequalities of outcome, then equality ot opportunities would follow in an empty, merely torma! sense. 9 See, for example, Rawls's Ibeorv of lusttce. po. 3 4 - 4 0 . 10 See my justice. Equal Opportunity, section 4.5. Since we are tar from the possibility frontier in tnllv realizing any ot these three principles, there is clearly

2. I will deai with the assignment problem in this section in terms of equal oppor-

progress ot the first sort to be made. I he liberty to confer benefits within the

tunity, as that is the form the problem takes for the major issues of distributive

family could certainly be increased by changing the incentives tor the forma-

justice affecting the basic structure of the society. The merit component of

tion ot two-parent (as opposed to single-parent) families. íhe welfare system,

equal opportunity raises the issues of desert and of procedural fairness that

at present, provides an incentive tor the formation ot families that w i l l confer

are essential to any more genera! discussion of assignment, even for one ap-

few benefits. Policies that would lessen minority teenage unemployment would

propriate to exotic situations such as the one posed in section 1.4 for the

also indirectly improve the incentive tor the formation ot two-parent families.

patient in room 306. Assignment raises the question: Why me? whether i t is

In addition, more systematic and innovative proposals might be constructed

for benefits or for burdens. A systematic theory of justice ought to aspire to

that promote the hberrv to confer benefits within the tamilv bv providing the

answer that question for all the problems of distribution that might fit within

conditions for maximizing choice in the institutions to which children are sub-

this framework. For our purposes, it will be sufficient to expose the conun-

letted. Educational voucher systems might welt be developed to serve this end,

drums applying to the equal opportunity problem. That parr of the overall

so that choice of schools would be not merely a privilege of the advantaged,

assignment problem is both crucial and inescapable. 3 . 1 have made this argument in greater detail i n Justice, Equal Opportunity, and the Family (New Haven and London: Yale University Press, 1983),

hut an opportunity spread throughout the society. 11, it is also clear that we sometimes sacrifice one of these principles without any corresponding gain in the others (or in additional factors that might be

4. Bernard Williams, "The Idea of Equality," in Peter Lasictt and W. G. Runci-

identified). Preferential treatment based merely on race, when it is applied

man, eds„ Philosophy, Politics and Society, 2d series (Oxford: Basil Blackweli,

in competitive meritocratic contexts, will sacrifice meritocratic assignment,

1962), pp. H O - 3 1 .

but w i l l not significantly serve equality of life chances. When preferential

5. This is essentially the move John Rawls makes. See A Theory of Justice (Cam-

treatment is applied to members of a minority group per se, an institutional

bridge: Harvard University Press, 1971), pp, 7 2 - 7 4 , where he explains how

incentive is created to accept or confer the benefit upon the most qualified

"fair equality of opportunity" adds to merit ("careers open to talents") the

members ot that group. They w i l l come, clearly, from the most advantaged

additional requirement that "those with similar abilities and skills should have

members of the minority group. Hence the debate about mistargeting of

similar life chances." After adding some requirements for how abilities and

preferential treatment, not to those who are actually disadvantaged, but to

skills are to be acquired, he admits: "The principle of fair opportunity can be

those who, symbolically, share racial, ethnic, or other characteristics w i t h

only imperfectly carried out, at least as long as the institution of the family

those w h o are actually extremely disadvantaged. This objection applies to

exists." He never explains, however, why the family should have the kind of

preferential treatment for minority groups per se, and not to preferential

independent moral weight that should stand against realization of one of the

treatment when it is carefully targeted through income and other criteria

principles ranked in lexical order.

to those who actually come from disadvantaged backgrounds. In that case,

6. See, for example, Christopher Jencks, Who Gets Ahead? The Determinants of Economic Success in America (New York: Basic Books, 1979), pp. 82-83. 7. Bruce Ackerman's proposals for "liberal education" would go a long way toward fulfilling both of these functions. See his Social Justice in the Liberal State (New Haven and London: Yale University Press, 1980), chap. 5.

my objection no longer applies, because it may well be that the sacrifice in merit, real though it may be, is made up by an improvement in equality of life chances- On the other hand, when preferential treatment is applied to mere membership m the minority group, no gain in equal life chances can realistically be expected to follow.

212

Hotes t o Pages 4 5 - 4 9

Holes t o Pages 3 4 - 4 2

12. The position I propose in this hook, whiie compatible with .some features of lntuitionism, has more precise implications, See part 3,

1 .(-> Democracy and Progress 1. This account ot "Madısoman" democracy has obviously benefited greatly from Robert Dahl's A Preface to Democratic Theory (Chicago; University of Chi­ cago Press, 1956). Furthermore, the majontanan dimension is roughly what he labels "popuhstic." i n labeling the northern dimension Madısoman, i do not. wish to limit Madısoman values to that dimension. For example, Madison would have been more sympathetic to the eastern, or representative, dimension of our scheme than to the western, or direct, dimension. 2. However, while impediments to new policies will prevent tyranny through commission, they will not prevent tyranny through omission. For an extended discussion, see my Tyranny and Legitimacy (Baltimore and London: Johns Hopkins University Press, 1979). For an identification of the verv idea ot democracy w i t h ' l i m i t e d maionty rule" (limited so as to protect minorities?, see Giovanni Sartori, The Theory of Democracy Revisited (Chatham, N . j . : Chatham House, 1987), section 2.4. Sarton's point is a usetul corrective to common usage. 3. D a h i , Preface, p. 132. 4. See Robert Paul Wolff, hi Defense of Anarchism (New York: Harper and Row, 1970). James Buchanan and Gordon'I ullock, in The Calculus of Consent (Ann A r b o r : University ot Michigan Press, 1971), also grant the unanimity rule a privileged status but, unlike Wolft, argue tor departures trom it based on decision costs. 5. See the discussion below, in section 2.6, ot the limitations of the unanimity rule. 6. For some creative proposals along these lines, see Benjamin Barber, Strong Democracy: Participatory Politics for a Netu Age (Berkeley and London: Uni­ versity of California Press, 1984), esp. chap. 10. 7. In terms of recent American experience, the movement of the Democratic party trom the McGovern reforms m the presidential selection system back to greater control by party notables is a movement roughly trom A to B and back again—a movement supported by differing images ot democracy.

Obligation (Princeton: Princeton University Press, 1979!, For his definition ot the requirement, see p. 43. M y claim will be, contra Simmons, that mv proposal satisfies the particularity requirement.

2 2 Beyond

lntuitionism

1 . Maurice Cranston, Freedom: A New Analysis (London: Longmans, 1953), p 6.5. For an incisive tour ot the many uses of the term liberalism, see Gio­ vanni Sarton, Pbe Theory of Democracy Revisited (Chatham, N.J.: Chatham House, 1987), chap. 15. 2. Ronald D w o r k i n , "Liberalism," in Stuart Hampshire, ed.. Public and Private Morality (Cambridge: Cambridge University Press, 1978), p. 115. 3. "Government must treat people as equals" in the sense that " i t must impose no sacrifice or constraint on any citizen in virtue ot an argument that the citizen could not accept without abandoning his sense ot his equal w o r t h " (Ronald D w o r k i n , "Neutrality, Equahtv and Liberalism," m Douglas Macl.ean and Claudia Mills, eds.. Liberalism Reconsidered [ i b t o w a , N.J.: Rowman and Allanheld, 1983}, p. 3). 4. See Bruce Ackerman, Social Justice in the Liberal State (New Haven and Lon­ don: Yale University Press, 1980), chap. 1. An excellent selection of writings on utilitarianism can be found in Amartya Sen and Bernard Williams, eds., Utilitariatttsm and Beyond (Cambridge: Cambridge University Press, 1982). 1

See also Peter Singer, Practical Ethics {Cambridge: Cambridge University Press, 1979). 5. See John Rawls, A Theory of justice (Cambridge; Harvard University Press, 1971), pp. 34—40. Rawls's central ambition is, ot course, to develop a con­ structive alternative to mtuinomsm. 6. Brian Barry, Political Argument (London: Routiedge and Kegan Paul, 1965;, pp. 4—8, and Brian Barry and Douglas W. Rae, "Political Evaluation," in Ered I . Greenstem and Nelson Polsby, eds., Flandbook of Political Science (Reading, Mass.: Addison-Wesley, 1975), pp. 353-57. 7. See Alasdair MacSntyre, After Virtue (Notre Dame, Ind.: University of Notre Dame Press, 1981), p, 229, tor similar criticisms ot the "weighing" metaphor. 8. This claim applies to the production ot a tuli-fledged systematic alternative, but not to the strategy I w i l l develop tor a partial alternative m part 3. 9. Ackerman, Social justice, p. 14. 10. if the state ot theoretical debate is not actually robust, then the test becomes

2. / Criteria for an Acceptable Theory i. For an extended argument that no theory ot obligation can satisfy the par­ ticularity requirement, see A . John Simmons, Moral Principles and Political

partially hypothetical: we have to ask whether a theory would differentiate in the required way among alternatives, if the state of debate permitted us to identify a broad range ot alternatives from which to choose.

Motes t o P a g e s 4 9 - 5 5

U . Rawls, Theory, pp. 8-9, 245-47, For further discussion of ideal versus nonldeal theory, see my Tyranny and Legitimacy: A Critique of Political Theories (Baltimore and London: Johns Hopkins University Press, 1979), chap. 7, 12. I wilt also follow Rawls in limiting ideal theory, at least initially, to the nationstate considered m isolation: " i shall be satisfied it it is possible to formulate a reasonable conception of justice for the basic structure of societv conceived as a closed system isolated from other societies" (Rawls, Theory, p. 8). External threats to the nation-state raise an issue for Rawls of nonideal or partial compliance theory. In applying our argument to the nonideal case, some exceptions for national security may thus he required. For some useful observations on how to draw these narrowly, see Thomas I . Emerson, The System of Freedom of Expression (New York: Random Fiouse, 1970), chap. 4. 13. [ take the term moderate scarcity from Rawls, who explains it thus: "Natural and other resources are not so abundant that schemes of cooperation become superfluous, nor are conditions so harsh that fruitful ventures must inevitably break down. While mutually advantageous arrangements arc feasible, the benefits they vteld fall short of the demands men put forward" (ibid., p. 127}.

Notes t o P a g e s 5 6 - 6 4

215

3, "The autonomous man, insofar as he is autonomous, is not subject to the wilt of another" (ibid., p, 14). 4. For further implications of the unanimity rule, see Douglas Rae, " 1 he Limits of Consensual Decision," American Political Science Review 69, no. 4 (December 1975), pp. 1270-94. See also my Tyranny and Legitimacy (Baltimore and London: fohns Hopkms University Press, Í979), chap. 8. s\ Of course, sunset laws might to devised to limit some of these conflicts. H o w ever, given Wolff's complete prohibition on violations of autonomy, differences of degree or in the number of violations would not make any difference to the basic argument. 6. John Locke, Two Treatises of Government, ed. Peter Laslett (New York: N e w American Library, 19b5), p. 392. 7. Hanna Pitkin, "Obligation and Consent," in Peter Laslett et al-, eds.. Philosophy, Politics and Society, 4th senes ( O x f o r d : Basil Blackwell, 1974), p. 55. 8. í say "some" grounds because the basis might, at best, be viewed as prima facie. Consider Hanna Pitkin's example of the minor official in Nazi Germany who has given his express consent by taking an oath of office ("Obligation and Consent," pp. 6 4 - 6 5 ) .

2.3 Political Thought Experiments

9. Wolff is at his best in his pungent critiques of the classical arguments for majority rule. See Defense, pp. 38-58.

t . Ackerman's theory employs neutrality as a fitter. See the discussion below.

10. See my Tyranny and Legitimacy, chaps. 1 , 2, and 8.

2. As we w i l l see in parts 2 and 3, the hypothetical category includes realistic

11. Joseph Tussman, Obligation and the Body Politic (New York: Oxford Uni-

thought experiments as well as purely imaginary cases (such as Rawls's origi-

versity Press, 1965), pp. 8, 21-22, 37.

nal position). A realistic thought experiment, such as Nozick's argument from

12. As Dahl notes, the tyranny problem recurs "like a nagging tooth." See his A

the state of nature to the minimal state, is hypothetical because the minimal

Preface to Democratic Theory (Chicago: University of Chicago Press, 1956),

state is being advocated for us based on the decisions of imaginary people. 3. A good account of these ambiguities, along with specimen illustrations, can he found in Hannah Pitkin, "Obligation and Consent," in Peter I.aslett et at., eds., Philosophy, Politics and Society, 4th series (Oxford: Basil Blackwell, 1974). 4. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 5. 5. See section 3.1 below. 6. I t is in this sense that the doctrine of primary goods is "ideal-regarding" as explained in section 1.2.

p. 124. 13. Of course, the unanimity rule, at the extreme, gives even one person a veto and so makes frustrating policy changes from the status quo easiest of all. 14. Later 1 wilt employ a solution to the problem of obligation to solve the legitimacy problem. However, my strategy wilt be very different from that of actualconsent theory, in the terminology just introduced, I w i l l employ a category 4 theory rather than a category 1 theory. 15. Michael Walzer, Spheres of Justice; A Defense of Pluralism and Equality (New York: Basic Books, 1983). 16. Consent and choice are here being used broadly enough to cover not only express acts, but also tacit or implicit acts of agreement to, or acknowledgment

2.4 The Quest (or Consent 1. Robert Paul Wolff, In Defense of Anarchism (New York: Harper and Row, 1970S, p. 23. 2. Ibid., p p . 23 and 24.

of, a shared convention or belief. 17. Ibid., p. 9. IS. Ibid., pp. 312 and 29 (emphases added). 19. John Rawls, A Theory of fustice (Cambridge: Harvard University Press, 1971), pp. 3 0 2 - 0 3 .

216

Noies t o Pages 6 4 - 7 4

Notes t o Pages 7 6 - 8 0

20. Harold Lass well and Abraham Kaplan, Power and Society (New Haven: Vale University Press, 1950), pp. 55-56. 2 LWahet,

to be bevond the means ot almost everyone" (ibid., p. 68 L E here is the further issue ot "free-floating anxiety" tor which people could not be compensated.

Spheres, p. ,11.1,

22. M v o w n proposal in part 3 clearly owes a debt to Walzer's book. But that debt takes the form of proposals which take the entire approach out of category i and into category 4. 23. Tyranny is defined as crossing the boundaries of the spheres as determined hy the shared understandings. See Walzer, Spheres, p. 20. 24. Barnngron Moore, j r . , In/ustice: The Social Bases of Obedience and

217

Nozick speculates that "market compensation" (what people would consent to, in advance, through negotiation) might be required instead ot merelv " f u l l compensation." ("Full compensation is an amount sufficient, but barelv so, to make the person afterwards say he's glad, not sorry, it happened" [ibid.].) While market compensation is more demanding, the difficulties I am discussing depend only on the weaker requirement ot full compensation.

Remit

(White Plains, N.Y.: M . E, Sharpe, 1978), chap. 2. However, Moore, in contrast to Walzer, rejects relativism (see chap. 13).

[ i . [ here is no provision for educational services in the minimal state as described in Nozick's book. We might, however, consider this an oversight and focus the argument on the extension of other services. 14. Nozick, Anarchy, p. 114.

2.5 Realistic

Hypothettcals

1. I interpret a claim that X actually is on at least as high an indifference curve as she was previously as falling within this category of strict agreement. 2. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 5.

15. Consider some ot the independent Alaskans depicted bv John McPhee playing this role m Nozick's scenario, 16- Nozick appears to flirt with this possibility in his discussion ot the epileptic driver who should be compensated tor being prohibited from driving only to the degree to which he is relevantly disadvantaged. Hence, if he were given taxi tare, and so was not really disadvantaged, he would not be able to claim a

3. Ibid. 4. Ibid., pp. 58 and 331. 5. Ibid., p p . 3 0 - 3 3 . The ontv possibility tor exceptions to the side constraints that Nozick mentions is "the question . , . whether they may be violated in order to avoid catastrophic moral horror, and it the latter, what the resulting structure might look like." Rather than deciding this question, he says it is "one I hope largely to avoid" (p. 30, note). 6. Ibid., pp. 23, 117-18.

rights violation, even if he did not tike taxis (and hence was not on as high an indifference curve after compensation was paid). Perhaps if the epileptic driver had already been incorporated into the state—and thus had tost the right to self-help enforcement—there might be an argument tor less than full compensation (because the state had already been established as the final arbiter of when the epileptic's rights were violated). But for our problem, the independents, bv definition, retain the right to self-help enforcement. The very right that is being taken away is the right to fudge when and to what degree their

7. Ibid., pp. 110-14.

rights have been violated. For the state to supplant the judgment ot the i n -

8. ' I he argument would then have about the same status as that suggested bv

dependents with its o w n judgment about whether compensation is sufficient

the Yiddish proverb " I f mv Grandmother had wheels, she'd be a trolley car."

is to take awav the right to self-help enforcement m the determination ot the

W i t h sufficiently implausible assumptions, we can find a basis for almost any

value of self-help enforcement. Anything less than full compensation should

conclusion.

plausibly be interpreted as a rights violation on this issue. But full compensa-

9. Nozick, Anarchy, pp. 25, 113-15. 10. Actually paying compensation makes up for a rights violation. This kind of compensation requirement is, of course, quite different from the hypothetical compensation tests used tn cost-benefit analysis (Kaldor-Hicks, Scirovskv, etc.), whose ultimate point is utilitarian but for which the compensation does not have to be paid. For more on the latter, see 1. M . D , Little, A Critique of Welfare Economics,

tion leads to a more than minimal state. See Anarchy, pp. 79-87, for Nozick's discussion ot the epileptic driver case. ¡7. For an application of this general argument to another case in category 2, David Gauthier's Morals hy Agreement, see my "Bargaining, justice and Justification," Social Philosophy and Policy 5, no. 2 (Spring 1988), pp. 4 6 - 6 4 .

2d ed. (Oxford: O x f o r d University Press, 1957).

U . Nozick, Anarchy, p. 63, and also the definition on p. 57. 12. Ibid., p. 66. Suppose, however, that the eccentric attempted to compensate everyone w h o felt fear as a result of his actions. "T his would be so expensive as

2.6 impartial Decision Procedures 1. See section 2.7 below (tor a discussion ot Dworkm's notion) and Peter Singer, Practical hthics (Cambridge: Cambridge University Press, 1979), pp. 12-13.

218

Holes t o Pases 8 7 - 9 4

Kotes t o Paces 8 0 - 8 7

2. Excellent discussions of these ambiguities can be found m Alan Gewirth, "The Golden Rule Rationalized," Studies in Ethical Theory, vol. 3 of Midwest Studies in Philosophy (1978), pp. 133-47, and J. L. Mackie, Ethics: Inventing

219

t 9 . I used similar charts in appendix B of my Tyranny and Legitimacy to make a different argument. 20. For some of maximin's bizarre implications, see Douglas W. Rae, " A Principle of Simple Justice," in Lasiett and Fishkm, Philosophy, esp. pp. 150-52.

Right and Wrong (New York: Penguin, 1977), chap. 4. 3. John Rawls, A Theory of justice (Cambridge: Harvard University Press, 1971),

2 1 . See Brian Barry, The Liberal Theory of Justice (Oxford: O x f o r d University

pp. 154-56; John C. Harsanyi, " M o r a l i t y and the Theory of Rational Be-

Press, 1973), chap. 9, where the ambitious interpretation of the threshold in

haviour," »t Amartya Sen and Bernard Williams, eds., Vttlitartamsm and Be~

terms of a satiation point for wealth is subjected to a sustained critique.

yond (Cambridge: Cambridge University Press, 1982). Rawls also develops

22. Adam Smith defined the "necessaries" as including "not only the commodities which are indispensably necessary for the support of lite, but whatever the cus-

the average utility argument on pp. 164-65 of A Theory of Justice. 4. See Singer, Practical Ethics, chap. 1 ; Rawls, Theory, pp. 136-42; and Law-

tom of the country renders it indecent for creditable people, even of the lowest

rence Kohlberg, "Justice as Reversibility," in Peter Lasiett and fames Fishkm,

order, to be w i t h o u t " (emphasis added). Within the latter category, Smith i n -

eds.. Philosophy, Politics, and Society, 5th series (New Haven: Yale University

cluded a linen shirt and leather shoes as necessary in his own time (because,

Press, 1979).

for example, "a creditable day-labourer would be ashamed to appear in public

5. According to Rawls, the "social primary goods" that are "at the disposition of society" include "rights and liberties, powers and opportunities, income and w e a l t h " {Theory, p. 62). In Ackerman's thought experiment, "manna is infinitely divisible and malleable, capable of transformation into any physical object a person may desire" {Social Justice, p. 31). For a critique of Ackerman, see section 2.2 above. For a critique of utility, see section 2.7.

without a linen shirt"). See Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (New York: Modern Library, 1937), book 5, chap. 2, pp. 821-22. For some of the difficulties in evaluating subsistence needs, see my Tyranny and Legitimacy, chap. 5. 2 3 . 1 believe this comparative view of the three features is the most sympathetic and plausible interpretation. In other words, from the original position, com-

6. Thomas Nagel, "Rawls on justice," m Norman Daniels, ed., Reading Rawls:

pared to the risk of falling below the threshold, we care little, if at a l l , for

Critical Studies of "A Theory of Justice" (New York: Basic Books, 1975), p. 8

increases above it. This ime of reasoning naturally leads us to something close

(emphasis added).

to subsistence and a tenable claim to neutrality. Unless this comparative view

7. The moral point of view is formalized in the sense that the assumptions pro-

is adopted, i t seems implausible that the very same point at which we become

vided (or permitted by) the decision procedure are spelled out with sufficient

satiated with wealth (not caring for further increments) is the point at which

rigor and clarity to determine a unique ultimate conclusion {or, at least, that

anything less is a disaster. For the satiation view, see Barry, Liberal Theory, chap. 9.

is the aspiration).

24. For Rawls on lexical priority, see Theory, pp. 42—45 and 60—65. For some

8. Rawls, Theory, p. 395. 9. John Rawls, "Fairness to Goodness," Philosophical Review 84

(October

1975), p. 537. 10. Rawls, Theory, p. 4 2 1 . 11. Ibid., pp. 413 and 408. See also pp. 4 1 6 - 1 7 .

excellent criticisms of Rawls's lexical rankings, see Daniels, Reading Rawls, esp. the articles by Daniels, Femberg, Scanlon, and Barber. 25. The counting principles require only that I choose effective means for realizing my aims, that 1 choose more inclusive plans, and that I take account of

12. Ibid., pp. 423 and 432.

likelihoods (when I have appropriate information). See Rawls, Theory, pp.

13. The m a x i m i n formulation of the general conception appears in the final state-

411-13.

ment of the principle on p. 303 of A Theory of Justice.

26. John Rawls, "Kantian Constructivism in Moral Theory: The Dewey Lec-

14. Ibid., pp. 3 0 2 - 0 3 .

tures 1980," Journal of Philosophy 77, no. 9 (September 1980), pp. 515-72.

15. Ibid., p. 408.

For a useful assessment of the shift, see William A . Galston, " M o r a l Person-

16. H o w , m other words, is i t supposed to yield the maximin distribution of pri-

ality and Liberal Theory: John Rawls's Dewey Lectures," Political Theory 10,

mary goods in the general conception and the lexical priority of liberty over

no. 4 (November 1982). See also Rawls, "justice as Fairness: Political, N o t

equal opportunity over income and wealth in the special conception?

Metaphysical," Philosophy and Public Affairs 14, no. 3 (Summer 1985), pp.

17. Rawls, Theory, p. 155. 18. I b i d . , p. 154.

223-51. 27. Rawls, "Kantian Constructivism," p. 524.

28. Ibid., p. 526.

221

Notes t o Pages 1 0 0 - 1 0 3

Notes t o Pages 9 5 - 9 9

220

variant ot a fundamental thought experiment. 1 he difficulty tor our purposes is

2V. Sec Rawls, "Justice as Fairness," pp. 227—28.

that when Ackerman's vision is taken in this pluralistic spirit, the basis it might

30. In the argument that follows I expand on some points I made m "Can 1 here

offer tor solving the jurisdiction problem will have been lost, its prescriptions

tie a Neutral Theory o l Justice?" Ethics 93, no. 2 (January 1983), pp. 348-56.

can then be evaded by rival theorists employing the same basic strategy (appeal

3 1 . "Rationality," m Ackerman's view, is merely the requirement that questioning

ro an impartial thought experiment), To the extent thev provide us with sub-

not be suppressed and that "reasons" be given instead (see Social justice, p. 4).

stantive conclusions, Rawls and Ackerman are not alone m reaching this result.

Ackerman later argues that "the reason advanced by a power wielder on one

I have, however, concentrated on them here because they represent, in my view,

occasion must not be inconsistent with the reasons he advances to justify his

the most powerful attempts to employ this strategy ot combining an impartial

other claims to power" (p. 7). 32. i b i d . , p. 11. 33. Once again, the basic difficulty is the dilemma between substantively significant conclusions that lack a firm basis and firm conclusions that tack substantive significance. 34. The general version of the argument yields initial equality of manna or material resources (Ackerman, Social justice, section 14). Once the full diversity of goods available for distribution over time is taken into account, a more com-

thought experiment with the neutral consideration of interests. 41 For a discussion ot justice in the distribution of esteem, see William f. Goode, The Celebration of Throes: Prestige as a Control System ^Berkeley: University of California Press, 1978), esp. chaps. 13 and 14. 42. Ackerman, Social Justice, pp. 3 - 4 . For a catalogue ot contested kinds of power relations, see Robert E. Gooden, Manipulatory Politics (New Flaven and London: Yale University Press, 1980). 43. See Douglas Rae et al., Equalities (Cambridge: Harvard University Press,

plicated conception of "undommated equality" is reached. See Social justice,

1981), for a sustained demonstration ot the many substantive inequalities

pp. 2 8 - 2 9 , tor a hill statement.

compatible with the abstract idea ot equality.

35. Ibid., p. 48. 3b. Ibid., pp. 4 8 - 4 9 (emphasis added). 37. Ibid., p. 56.

2-7 Preference, Utility, and the Good

38. Recall that in this science fiction scenario, the measurement problems arising

t . Brian Barry, Political Argument {London: Routledgc and Kegan Paul, 1965),

from interpersonal comparisons have been set aside m order to give the utili-

pp. 3 8 - 4 1 . See also my Tyranny and Legitimacy {Baltimore and London:

tarian the benefit of the doubt. See Ackerman, Social Justice, pp. 4 5 - 4 9 , 265.

Johns Flopkins University Press, 1979), chap. 3, where I borrow [his distinc-

39. Ibid., p. 49.

tion from Barrv but develop i t m a slightly different way.

40. For a spirited defense of his basic claim that, at the very least, his o w n proposal

2. R. M . Hare, " E t h i c a l ! heory and Utilitarianism," in Amarrya Sen and Bernard

clearly passes neutrality, see Ackerman, "What Is Neutral about Neutrality?"

Williams, eds., Utilitarianism and Beyond (Cambridge: Cambridge Univer-

Ethics 93, no. 2 (January 1983), pp. 3 7 2 - 9 0 . '1 here, however, Ackerman does

sity Press, i982), p. 26. O n the tradition of the impartial spectator, see Adam

admit the theoretical possibility that his neutrality constraint might be com-

Smith, TheTheoryof

patible with radically different metrics for measuring outcomes. " I t may be

pp. 22, 3 1 - 3 8 , 4 1 , 7 1 , 161-62, 2 4 7 - 4 9 . See also fohn Rawls, A Theory of

possible to produce a nonpreclusive model [one that does not rule out, by

justice (Cambridge: Fiarvard University Press, 1971), pp. 183-92.

definition, the power struggles characteristic of the w o r l d as we know it] that

Moral Sentiments (Indianapolis: Liberty Classics, 1969),

3. Flare, "Ethical Theory," p. 30. For more on Hare's grappling with the fanatic,

analyzed Everyman's power struggle in a radically different way—-one that

see his Ireedom and Reason ( O x f o r d : Oxford University Press, 1963), chap. 9.

did not at all resemble the way I have used the basic descriptors in my model:

4. Hare, "Ethical Theory," p. 30. In his Moral Thinking { O x f o r d : Clarendon

"genes," "education," "manna," "transactional structure," "Everyman." The

Press, 1981), chap. 10, Hare claims that pure fanatical preferences such as the

outcomes of neutral dialogue in such a world would doubtless yield a very dif-

Nazi's w i l l necessarily disappear through the process ot moral umversahza-

ferent conception of undommated equality—though it is hazardous to predict

tion. The Nazi, if he imagines himself in the place ot jews, will necessarily

the differences until the rival model is produced" (p. 383, emphasis added).

lose his pure tanatical Nazi preferences. This strong claim is a sharp departure

The argument developed here offers no obiection to Ackerman's vision of the liberal state (or to Rawls's) once it is considered as part of such a family of liberal first principles—each of which makes symmetrical claims trom its o w n

from the position Hare took in Ereedom and Reason. For an incisive critique of this last strategy, see Bernard Williams, Ethics and the Limits of Philosophy (Cambridge: Harvard University Press, 1985), pp. 82- >2. l

222

N o t e s t o Pages 1 0 3 - 1 1 0

Holes t o Pages 1 1 1 - 1 2 6

5. For more on this kind of counterexample directed at utilitarianism {and rival

n

223

i v "Justice and Rationality: Some Objections to the Central Argument m

theories that share certain of its features), see my Tyranny and Legitimacy,

Rawls's Theory," American Political Science Review 69, no. 2 (June 1975/,

esp. chaps. 1 , 2, 10, and 11.

pp. 615-29. Brian Barry (who, as noted earlier, originated the want-regarding/

6. Ronald D w o r k i n , Taking Rights Seriously (Cambridge: Ftarvard University

ideal-regarding distinction) applies it to Rawls in A somewhat different way,

Press, 1977), esp. chap. 9. For comparable efforts to distinguish private- and

classifying Rawls's doctrine of primary goods as a want-regarding conception

public-regarding preferences, see Brian Barry, Political Argument, pp. 63¬

at one remove" (The Liberal Theory of Justice [Oxford: O x f o r d University

64, and my Tyranny and Legitimacy, pp. 2 6 - 2 8 . For a critique of Dworkin's

press, 1973|, p. 22). Here Í draw the line diflerentlv so as to place primary

strategy to rehabilitate utilitarianism, see Fi. L. A Hart, "Between Utility and

goods in the ideal category. Rawls classifies his own argument this way, as

Rights," in Alan Ryan, ed., The Idea of Freedom ( O x f o r d : O x f o r d University Press, 1979), pp. 7 7 - 9 8 .

Barry notes (p. 23). 19. See Gerald D w o r k i n , "Paternalism," in Peter Lasiett and ¡ames S. Fishkm,

7. Ronald D w o r k i n , " A Reply," in Marshall Cohen, ed., Ronald Dworkin and

cds., P/)i/osopijy. Politics, and Society, 5th senes (New Haven and London:

Contemporary Jurisprudence (Totowa, N.J.: Rowman and Altanheld, 1983),

Yale University Press, 1979), pp. 7 8 - 9 6 , for persuasive arguments m favor of

p. 284.

some weak paternalistic judgments.

8. Ibid., p. 286.

20. A n example attributed to Robert Nozick in D w o r k m , "Paternalism," p. 92.

9. John C. Harsanyi, " M o r a l i t y and the Theory of Rational Behaviour," in

2 1 . Barrington Moore, Jr., Injustice: The Social Bases of Obedience and Revolt

Amartya Sen and Bernard Williams, cds., Utilitarianism and Beyond (Cam-

(White Plains, N . Y . : M . E . Sharpe, 1978).

bridge: Cambridge University Press, 1982), p. 56. 10. For some further arguments that utilitarianism cannot consistently be selective among preferences, see Bernard Williams, " A Critique of Utilitarianism," in j . J . C . Smart, Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1973), pp. 77-150; see esp. section 6.

3. J Toward

Reconstruction

1. I set aside the issue whether such strategies can solve the particularity requirement—whether, for example, they lead to an obligation to support a particular

11. See my Tyranny and Legitimacy, chap. I ,

just society, or just societies in general.

12. Lionel Robbins, "Interpersonal Comparisons of Utility: A Comment," Economic Journal 48, no. 192 (1938), pp. 6 3 5 - 4 1 .

3.2 The Legitimacy Problem

13. [hid., pp. 636 and 637. Robbins is quoting a remark of Jevons. 14. As I. M . D . Little notes in discussing these Paretian limitations, " I f the actual compensation of all losers is required before any economic change can be said to be good, then probably no good economic changes can occur. N o change of any significance in the real w o r l d could ever be made without harming some people" (A Critique of Welfare Economics, 2d ed. [Oxford: O x f o r d University Press, 1957j, p. 120). 15. W i l l i a m j . Baumol, EconomicThcory

1. I rake the term ideal theory from Rawls; see the discussion below. 2. Ronald D w o r k i n , "The Original Position," in Norman Daniels, ed., Reading Rawls: Critical Studies of "A Theory of Justice" (New York: Basic Books, 1975). 3. Everyone may have an obligation without the strength of that obligation always being overriding. Same members may, of course, have even stronger

and Operations Analysis,Mhtd.

(Engte-

w o o d Cliffs, N.J.: Prentice-Hall, 1977), p. 530. 16. Little, Critique, p. 87. 17. For an example of distributional weights, see Burton Weisbrod, "Income Redistribution Effects and Benefit-Cost Analysis," in Samuel Chase, Jr., ed.,

conflicting obligations in special cases. A state may be legitímate and still provide some members with grounds for justified civil disobedience. 4. Note to Wollheim's paradox and to the discussion of it m John Rawls, "Legal Obligation and the Duty of Fair Play," in Sidney Fiook, ed.. Law and Philosophy {New York: New York University Press, 1964), pp. 6-8.

Problems in Public Expenditure Analysis (Washington, D , C ; Brookings Insti-

5. I say "acceptable account" because it might be possible to do awav with all

tution, 1976), pp. 177-213. For some difficulties in these economic applica-

dissent and disagreement under realistic conditions, but only at a cost in what

tions of utilitarianism, see the articles by J. A, Mirrlees and Peter Hammond in Sen and Williams, Utilitarianism and Beyond. 18. For a critique of Rawls's doctrine of primary goods along these lines, see

we termed indoctrination problems. 6. See, for example, John Rawls, "Justice as Fairness: Political, N o t Metaphysical," Philosophy and Public Affairs 14, no. 3 {Summer 1985), pp. 2 2 3 - 5 1 .

Notes t o Pages 1 4 0 - 1 4 6

Notes t o Pages 1 2 7 - 1 4 0

7. See Giovanni Sarton, The Theory of Democracy Revisited (Chatham, N.J.: Chatham House, 1987), section 5.4. See also Kar! Deutsch, The Analysis of International Relations (Englewood Cliffs, N.J.: Prentice-Hall, 1968), pp 101-10.

225

14. John Rawls, "Legal Obligation and the Dutv of Fair Plav," in Sidney H o o k , ed., Law and Philosophy (New York: New York University Press, 1964). Rawls defines his principle of fair play on pp.9-10. 15. Additional benefits can, of course, be provided, but the obligation to support the practices in question follows from the receipt of essential benefits (provided

3.3 Legitimacy and Obligation

our other conditions apply as well). 16. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974),

1. "The living cremation of the satt was always m theory voluntary, but if we are to judge from later analogy, social and family pressure made i t virtually obligatory on some high-caste widows, especially those of the warrior class" (A. L. Bashara, The Wonder That Was India [London: Sidgwick and Jackson, 1954J, p. 188).

p. 93 17. Ibid., pp. 94 and 95. 18. For a subtle and insightful attempt to reconstruct the fairness argument, see

2. "Some medieval writers roundly declare that the sati, by her self-immolation,

tive benefit be " w o r t h its cost to each recipient" (p, 623), a position that ¡ w i l l

expunges both her own and her husband's sins, and that the two enjoy together 35 million years of bliss in heaven" (ibid,). 3. In addition, it must be asked whether such a practice could he characterized as providing essential benefits.

Richard Arneson, "The Principle of Fairness and Free-Rider Problems," Ethics 92 (July 1982), pp. 6 1 6 - 3 3 . Ffowever, Arneson would require that the collecdispute below. 19. M y thanks to Lauren Rosenbloom for suggesting this example in class discussion at the University of Texas.! later encountered an Israeli example applied to these questions in George Klosko, "Presumptive Benefit, Fairness and Political Obligation," Philosophy and Public Affairs 16, no. 3 (Summer 1987), pp.

4. For an illuminating discussion, see Richard Wasserstrom, "Racism and Sexi s m " in Philosophy and Social Issues: five Studies (Notre Dame: University of Notre Dame Press, 1980).

20. See note 18 above.

5. See the discussion of background conditions in section 3.5.

2 ! . Note that the basic character of our argument would not be changed if Arne-

6. See, for example, George Frednckson, White Supremacy: A Comparative Study in American and South African History (New York: O x f o r d University Press, 1981). 7. See Barrington Moore, Jr., Injustice: The Social Bases of Obedience and Revolt (White Plains, N . Y . : M . E. Sharpe, 1978), p. 6 1 . 8. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (New Y o r k : Modern Library, 1937), book 5, chap. 2, pp. 821-22. 9. Karl M a r x , Capital, vol. 1 (New York: Vintage Books, 1977), p. 275 (book 1, part 1 , chap. 6).

241-59.

son's proviso were added. Such a move would simply restrict the range of alternative practices that were both acceptable and feasible.

3.4 Liberty of Political Culture 1.1 mean "political" to apply to all three areas—expression, belief, and association. Ffowever, the modifier is interpreted according to the broad definition in the next paragraph. 2. For an argument that places simitar emphasis on freedom of political expres-

10. Moore, Injustice, p. 59.

sion and association as constituting a core value m the liberal-democratic

11. Moore concludes: " I t was a system of rights and duties that was regarded as

tradition, see Alexander Meiktejohn, Political Freedom {New York: Harper

legitimate by its victims." H e also singles out the "Untouchable caste councils which punished individual Untouchables who failed to live up to their obligations under their o w n systems" (ibid., p. 60).

and Brothers, 1948; repr. 1979). 3. Thomas Scanlon, " A Theory of Freedom of Expression," Philosophy and Public Affairs I , no. 2 (Winter 1972), pp. 2 0 4 - 2 6 , and "Freedom of Expression

12. For a penetrating and ambitious attempt to provide an account'of " m i n i m u m

and Categories of Expression," University of Pittsburgh Law Review 40, no. 4

standards of provision" that is very close in spirit to the notion of "essen-

(Summer 1979), pp. 519-50. For Scanton's criticism of his o w n previous posi-

tial benefits" offered here, see David Braybrooke's Meeting Needs (Princeton:

tion, see pp. 5 3 2 - 3 4 of the latter article. In his new position, the "ultimate

Princeton University Press, 1987).

sources of justification relevant to . . . expression are the relevant partici-

13. H . L A . Hart, " A r e There Any Natural Rights?" Philosophical Review 64 (April 1955), p. 185.

pant, audience and bystander interests and requirements of distributive justice applicable to their satisfaction" (p. 535).

226

Notes to Pages 1 5 1 - 1 5 5

Notes t o Pages 1 4 6 - 1 4 9

227

4. Berlin only needs to respond to this issue to the extent that his argument is, irt

W i l l i a m Brennan in blew York Times v. Sullivan that the libel laws need to be

tact, a defense ot a particular conception of liberty, in revisions ot that argu-

evaluated "against the background of a profound national commitment to the

ment, he qualified the sense in which it could be taken as a defense of liberty.

principle that debate on public issues should be uninhibited, robust and wide-

Rather, the argument is really a defense of value pluralism. In a note to the

open, and that it may well include vehement, caustic, and sometimes unpleas-

introduction to Four Essays, he explains: " i have therefore revised the text

antly sharp attacks on government and public officials." From our standpoint,

to make it clear that [ am not offering a blank endorsement of the negative

that decision was important for the "breathing space" which the libel laws

concept as opposed to its positive twin brother, since this would itself consti-

had to leave for political dialogue. See Neiv York Times v. Sullivan, 376 U.S.

tute precisely the kind ot intolerant monism against which the entire argument

254 (1964), at 270 and 272.

is directed" {Four Essays on Liberty [New York: O x f o r d University Press,

12. See Murray Schumach, The Face on the Cutting Room Floor (New York:

1970}, p. Ivni). For Berlin's combination of "pluralism" and faliibihsm, see

M o r r o w , 1964), chap. 4, for some interesting and sometimes bizarre cases ot

" T w o Concepts of Liberty," ibid., pp. 167-72. For a greatly overstated version

political blacklisting in Hollywood,

ot this problem m Berlin, see Leo Strauss, "Relativism," m Helmut Schoek and

13. One of the key demands in the boycott bv blacks ot white merchants in

James W. Wiggins, eds.. Relativism and the Study of Man (Princeton, N.J.:

iV.A.A.C.P. v. Claiborne Hardware Co. (a boycott which was granted First

Van Nostrand, 1961).

Amendment protection for its nonviolent aspects) was that the merchants end

5. For some general issues confronting the strategy of founding liberty on an idea!

job discrimination. Consumers should be tree to pursue such an effort because

of human development, see Frederick Schauer, Free Speech: A Philosophical

the merchants are not entitled to equal consideration independent from such

Enquiry (Cambridge: Cambridge University Press, 1982), chaps. 4 and 5. On

issues arising from their role m the marketplace. Suppose, however, that the

"autonomy," see John Gray, Mill on Liberty: A Defence (London: Routledge

white merchants w h o are the subject of the boycott do not practice discrimina-

and Kegan Paul, 1983), pp. 54-56 and 7 3 - 8 1 ; and Fred R. Berger, Happiness,

tion hut are the target of the boycott because it is believed that their personal

justice and Freedom (Berkeley and London: University of California Press,

views are racist. If those alleged racist views do not lead to actions that are the

1984), pp. 2 3 2 - 3 9 . Both, however, incorporate autonomy into a theory that

subject of protest, then our analysis could, admittedly, result m protecting the

depends on the evaluation of states of affairs. O n Grav's version of M i l l , this

merchants from penalties imposed because of their private racist views, just as

evaluation is ultimately utilitarian; on Berger's, it is fundamentally a theorv of

we would protect the Jewish merchant from penalties imposed because of his

justice. 6. See the picture of M i l l that Berlin emphasizes in "John Stuart M i l l and the Ends of L i f e " (Four Essays}. 7. Ibsen's plays are full of compelling cases where truth conflicts with utility and/ or justice. See, for example, The Wild Duck and An Enemy of the People. 8. These observations on Twain and Dos Passos derive from Shelley Fisher Fishkin, From Fact to Fiction: Journalism and Imaginative Writing in America (Baltimore and London: Johns Hopkins University Press, 1985).

private religious views. 14. Kent Greenawalt, "Criminal Coercion and Freedom of Speech," Northwestern University Law Review 78, no. 5 (December 1983), p. 1084. 15. Of course, as in much political debate (and in many works of artistic expression), the reasons may be implicit or oblique, but there must be a basis in the work for uncovering them. 16. t am indebted to James Billington for bringing this phenomenon and its implications to my attention.

9. See Cohen v. California, where First Amendment protections were extended to

17. This argument and its connections to what I call the "private sphere of lib-

the "emotive" as well as purely "cognitive" functions of linguistic expression

e r t y " are developed in some detail in my Justice, Equal Opportunity, and the

because, as justice John Marshall Harlan noted, it is the "emotive function which, practically speaking, may often be the more important element of the

Family (New Haven and London: Yale University Press, 1983), section 2.4. 18. 1 am greatly indebted to Zhengyuan Fu of the Chinese Academy of Sciences

overall message sought to be communicated" (403 U.S. 15 [1971}, at 26).

for bringing this to my attention and for providing me with this translation.

10. Hence modest time, place, and manner restrictions do not constitute explicit

The quotation is from Ssu-ma Ch'ien's Historical Records. However, the stan-

manipulation provided that (a) they are employed in a content-neutral manner

dard two-volume English translation by Burton Watson (New York: Columbia

and (b) they do not operate so as to effectively silence an opinion.

University Press, 1961) begins w i t h the later Han dynasty and thus does not

11. However, this analysis would certainly support the famous view of Justice

include this edict from the Quin dynasty. For a statement from one of the em-

228

N o t e s h> P a g e s 1 5 5 - 1 6 8

peror's advisers that matches this edict almost verbatim, see Win, Theodore de Barv, Wmg-tsit Chan, and Burton Watson, eds., Sources of Chinese Tradition, vol. 1 (New York: Columbia University Press, I960), p, 141. 19. John Stuart M i l ) , On Liberty, m Utilitarianism, On Liberty and Other Writings, edited with an introduction bv Mary Warnock (New York: New American Library, 1962), p. 202. 20. For an extended argument to this ettect, see my "Bargaining, Justice and |ustification," Social Philosophy and Policy 5, no. 2 (Spring 1988), pp. 4 6 - 6 4 . 2 1 . They do not, i n other words, dismiss claims from particular groups merely because of the source. 22. M i l l , On Liberty, p. 143. 23. Ibid., p. 145. 24. See section 3.5 below. 25. This is, of course, one of the mam strands of argument m On Liberty, especially chapter 2.

Notes t o Pages 1 6 9 - 1 7 6

229

not be sett-reflective (the definition includes the requirement that it be unmanipulated). 5 . 1 his notion is meant to apply regardless of whether the goods or characteristics are valued ncgativelv or positively. See sections 2.2 and 2.3 above tor a discussion ot many ot the difficult issues in conceptualizing these values. 6 By "receive," 1 mean process forms of expression offered bv others so as to facilitate successful communication, whether oral or in writing, through standard languages or new artistic forms. 7. This knowledge should be interpreted to include not only the capacity to understand, but also the capacity to employ the relevant conventions. 8. For a further argument to this ettect, see my Justice, Equal Opportunity, and the Family (New Haven and London: Yale University Press, 1983), sections 2.4 and 3.6. 9. See Joseph Goldstein, Anna Freud, and Albert J. Soinit, Beyond the Best Interests of the Child (New York: Free Press, 1973) and Before the Best Interests

26. For an incisive critique of the claim that "authority" requires a "surrender" ot judgment from those subject to it, see Richard E. Flathman, The Practice of Political Authority (Chicago: University ot Chicago Press, 1980), chap. s. 27. For the tortuous history in America ot the achievement ot liberty in the laissezfaire view (treated as freedom of the press in the "libertarian" sense), see Leonard W. Levy, Emergence of a Lree Press (New York: Oxford University Press, 1985). 28. For more on nondiscriminatory meritocratic assignment, see my Justice, Equal Opportunity, and the family, sections 2.2, 4 . 1 , and 5 . 1 . 29. Charles E. Lmdblom, Politics and Markets (New York: Basic Books, 1977), p. 202. 30. The attacks on Lmdblom concerning this issue are gathered in Robert Hessen, ed., Does Big Business Rule America? (Washington, D . C . : Ethics and Public Policy Center, 1981).

of the Child (New York: Free Press, 1979} for some influential work on both the dangers ot and appropriate grounds tor state intervention. 10. See Une Brontenbrenner, A Report on Longitudinal Evaluations of Preschool Programs: Is Early Intervention Effective? vol. 2 (Washington, D.C.: Office ot Child Development, 1974) and P. Lcvcnstein, "Cognitive Growth in Preschoolers through Verbal Intervention with Mothers," American Journal of Orthopsychiatry 40 (1970), pp. 4 2 6 - 3 2 . H . I take the term underclass from Ken Autetta's vivid portrait Fhe Underclass (New York: Vintage Books, 1983). 12. See my Justice, sections 2.4 and 3.6, 13. For a provocative application to voting in national elections, see Paul E. Mechl, "The Selfish Voter Paradox and the Thrown-Away Vote Argument," American Political Science Review 7 1 , no. 1 (March 1977), pp. U - 3 0 . T h e general theoretical issue was, ot course, made famous by Mancur Olson, Ihe Logic, of Collective Action (New York: Sbocken Books, 1968), chaps. 1 and 2. For

3.5 The Conditions of Activist Liberty 1. Anthony Trollope, Pbmeas Finn, vol. 1 (London: Oxford University Press, 1949), p. 297. 2. Ibid,, p. 312. 3. Isaiah Berlin, " T w o Concepts of Liberty," m Four Essays on Liberty (New York: O x f o r d University Press, 1970). See Gerald C. MacCaltum, Jr., "Negative and Positive Freedom," in Peter l.aslett et al., eds., Philosophy, Politics andSouety,

4th series (Oxford: Basil Blackwell, 1974).

4. i say "self-critical" because, by tnv proposed definition, such a dialogue could

some crucial ambiguities m the notion of group size, see Russell Hardin, Collective Action (Baltimore and London: Johns Hopkins University Press, 1982), chap.3. 14. See, for example, William H . Riker and Peter C. Ordeshook, " A Theory of the Calculus ot Voting," American Political Science Review 62, no. 1 (March 1968), pp. 2 5 - 4 2 . 15. Stanley!. Benn offered an account of "political activity as a torm of moral selfexpression" and used as one of his examples "singing political songs i n the bath." See his "The Problematic Rationality ot Political Participation," in Peter Laslett and James S. Fishkm, eds.. Philosophy, Politics, and Society, 5th series

230

Notes t o P a g e s 1 7 7 - 1 8 6

(New Haven: Yale University Press, 1979;, esp. p. 3 10. Benn's notion ot moral self-ex press ion cannot, it seems to me, admit considerations ot effectiveness m expression any more than it can admit considerations of consequences. It is more a matter of consistency with fundamental beliefs or, one might sav, a matter ot integrity. 16. C. D . Broad, " O n the Function of False Hypotheses m Ethics," international Journal of Ethics 26 (1915-161 pp. 377-97.

Notes t o P a g e s 1 8 6 - 1 9 5

231

27. For a historical account of our consumer culture along these general lines, see Stuart Ewen, Captains of Consciousness (New York: McGraw-Fiill, 1976). 28. For a careful assessment, see Michael Schudson, Advertising, the Uneasy Persuasion (New York: Basic Books, 1984). 29. See Ithiel de Sola Pool, Technologies of freedom (Cambridge: Harvard University Press, 1983) tor a useful survey of new technologies of mass communication and their promise,

17. For a discussion ot various efforts to deal with this' problem, see my Limits

30. For some inventive but speculative proposals for limiting the influence of com-

of Obligation (New Haven and London: Yale University Press, 1982), part 2,

mercial advertisers, see Charles A . Reich, " M a k i n g Free Speech Audible," The

sections 13-18. 18. These points about organizational pluralism and decentralization have bene-

Nation, Feb. 8,1965, pp. 138-41. 31. See David R. Mayhew, Congress: The Electoral Connection (New Haven and

fited trom Robert A . Dahl, Dilemmas of Pluralist Democracy: Autonomy vs.

London: Yale University Press, 1974), pp. 6 7 - 6 9 . See also John W. King-

Control (New Haven and London: Yale University Press, 1982).

don, Agendas, Alternatives and Public Policies (Boston: Little, Brown, 1984),

19. Barrmgton Moore, Jr., Injustice: The Social Bases of Obedience and Revolt (White Plains, N.Y.: M . E. Sharpe, 1978), p. 58. 20. See my Justice, section 5 . 1 , for a further account of these process equalities. 2 1 . 1 have been focusing here on how the tack ot self-esteem may form an impedi-

chap. 8, for a detailed discussion of policy entrepreneurs and their relation to windows of opportunity. 32. See Benjamin L Page, "The Theory of Political Ambiguity," American Political Science Review 70, no. 3 (September 1976), pp. 742-52.

ment to participation. It is also true, of course, that actual engagement in par-

33. in this same spirit, see Benjamin Barber's proposals for a "Civic Commu-

ticipation can be expected, m turn, to contribute to self-esteem and to the civic

nications Cooperative" to harness new technologies for democratic political

education of citizens—facilitating the development of the necessary capacities.

dialogue and a "Civic Videotext Service" to increase citizen access to infor-

M i l l made strong claims about the educative functions of participation. For

mation (Strong Democracy: Participatory Politics for a New Age [Berkeley:

an assessment, see Dennis F. Thompson, fohn Stuart Mill and Representative Government (Princeton: Princeton University Press, 1976), chaps, i , 2, and Conclusion.

University of California Press, 1984j, chap. 10). 34. Joel Feinberg, Offense to Others, vol. 2 of The Moral Limits of the Criminal Law (New York: O x f o r d University Press, 1985), pp. 10-13.

22. For each of these process equalities, leveling up tor the bottom is a neces-

35. For a strong argument that symbolic speech should be accorded equal status

sary first step, but one that inevitably falls far short of equalization. Further

w i t h verbal speech under the First Amendment, see Melville B. Nimmer, "The

efforts at equalization must inevitably conflict with important liberties ot the

Meaning ot Symbolic Speech under the First Amendment," UCLA Law Re-

better-off strata. H o w these value conflicts are to be assessed remains a serious

view 2 1 , no. 1 (1973), pp. 2 9 - 6 2 .

controversy. See my justice, section 5 . 1 . 23. Fora penetrating assessment, see William Julius Wilson, The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy (Chicago: University ot Chicago Press, 1987). 24. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), chap. 4.

3 6 . 1 am referring to the full experience of such messages, not the bare knowledge of them. 37. For more on this promise, see Pool, Technologies. For example: " W i t h the new technologies, the w o r l d is s h r i n k i n g . . . . There will be less cost constraint to do business, consult, debate, and socialize within one's own region only. There w i l l be more freedom to do so with anyone anywhere w i t h w h o m one

25. Although W. G. Runciman argues that this factor w i l l be greatly ameliorated

finds affinity. This development, along with the development of multiple tech-

by restrictions in the range of social vision ot the worse-ott (postal workers

nologies ot communication and of cheap microprocessors, w i l l toster a trend

comparing themselves to other postal workers, but not to the very rich). See

toward pluralistic and competitive communications systems. W i t h hundred-

Runciman, Relative Deprivation and Social Justice (Berkeley: University of

channel cable systems, videocassettes, videodisks, ISDNs, and network links

California Press, 1966). 26. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 534.

to thousands of on-line information services, there should be a diversity of voices far beyond anything known today" (p. 229).

232

Nofes t o Pages 1 9 5 - 2 0 1

38. For an assessment, sec Larrv ] . Sabato PAL Power: Inside the World of Political Action Committees (New York: N o r t o n , 1984). 39. Buckley u, Valeo, 424 U.S. t (1976). See aiso First National Bank v. Bellotti, 435 U.S. 7 6 5 ( 1 9 7 8 ) . 40. Reich, M a k i n g Free Speech Audible," p. 141. 1

Vouchers and Opinion Polls 1. See the discussion ot capacities in section 3.5 above. 2. i participated w i t h Schmitter, Ciaus Otte, lerrv Karl, and others in a working group focused o n representation vouchers at the Center tor Advanced Studv in the Behavioral Sciences in 1987-88. in what follows, 1 do not presume to present Schmitter's proposal, as it differs from the sketch suggested here in many particulars. I am, however, grateful to all the participants in this group tor some extremely insightful discussions. E heir own respective versions ot the idea w i l l , I am sure, be presented in various works. 3. I served as chief academic adviser to station WET A in Washington, D.C., tor an effort bv PBS to mount a version ot the deliberative opinion poll m the

Absolutism versus relativism, 2, 202 Ackerman, Bruce A., 2 0 6 » 2 , 2 0 9 « f 0 ,

Anarchy, State and Utopia (Nozick), 51

1992 presidential campaign, i'undmg difficulties forced the event to be can-

2S3K4, 220>;.iS, 221 » 4 2 ; on

celed, but the proposal has been adopted tor 1996 bv all ten of the nation's

manna, 6 , 5 ! , 80, 9 8 - 9 9 , 2 1 8 « 5 ;

presidential libraries. I he event w i l l be held at the Lvndon Baines lohnson

on "neutral dialogue," 4 6 , 5 ! , 56,

Library and Museum m Austin, Texas, and is expected to be broadcast nation-

79; hypothetical-choice theory in

lem and, 22; definition of, 29:

ally. Eor more details on the possible role ot deliberative opinion polls, see mv

Social Justice in the Libera! State,

equal opportunity and, 29-35,

Democracy and Deliberation; New Directions for Democratic Reform (New

48, 82, 9 6 - S O I ; on neutrality,

2 1 0 « 2 ; merit and, 3 1-32,

Haven and London: Yale University Press, 1991).

5 1 , 9 6 - 9 7 , 100,101, 2 2 0 - 2 1 x 4 0 ;

equality of life chances and, 32¬

4. For a general account ot momentum in the presidential selection process, see Larrv M . Barrels, Presidential Primaries and the Dynamics of Public Lboice (Princeton: Princeton University Press, 1988).

objection to utilitarianism by, 97¬

A meson, Richard, 143,

llSnU,

HSn2l Assignment problem: structure prob-

33;

33; liberty and, 3 3 - 3 4

98, 108; on equality, 9 8 - 1 0 0 ;

Authority. See Legitimacy problem

distribution theory i n , 99-100,

Autonomy, 146, 2 15x3, 226X5

101; on liberal education, 2f0/r7; on rationality, 220rt.il Activist liberty: conception of, 163¬ 64; conditions of, 165-97; capacities and, 170-73; incentives and, 173-89; opportunities and, 189¬ 97 Actual-consent theory, 5 0 - 5 2 , 56, 59-63,68 Acyclicity, 2 0 9 « f.j

Background conditions: and activist conception of liberty, 168—69; definition of, 169; capacities, 170-73; incentives, 173-89; opportunities, 189-97 Barber, Benjamin, 2\2n6, 23 1x33 Barry, Brian, 22, 4 6 - 4 7 , 101. 206xS, 209x7,213x6,219x2/.221x/, 222x6, 223x/tf

Agreement. See Consent

Barrels, Larry M . , 232x4

Amoralism, religion versus, 2, 202

Basham, A . L „ 2 2 4 x /

Anarchism, 42, 51, 52,57, 69, 77, 128

Baumol, W i l l i a m ] . , 109,222x15

234

Index

Beitz, Charles R., 206«/

Index

Compensation, 68, 71-77, 2 i 6 « i ( i ,

Benefits: legitimacy problem and, 124,

2 l 7 « i 2 , 2 l 7 x / 6 . 222«/4

128; essential benefits, 1.35—37,

Consensus: legitimate versus sus­

139-44, 2 2 4 « i 2 2 2 5 « / 5 ; " m i n i ­

pect forms of, 8, 6 5 - 6 6 ; in a

mum standards ot provision,"

self-reflective society, 124, I2f>—

2 2 4 « i 2 ; collective benefit, 215n 17

27; cleavages and, 130-31, 134,

1

Benn, Stanley I . , 2 2 9 - 3 0 « / 5 Bennett, Jonathan, 15, 17, 2 0 8 « O

156-58; definition of, 130 Consent: actual-consent theory, 50,

Deliberative opinion polls, 2 0 0 - 2 0 1 , 232x3 Democracy; forms of, 3 5 - 3 7 ; " M a d i -

235

D w o r k i n , Gerald, 2 0 6 « ^ , 2 2 3 x x ( 9 20 D w o r k i n , Ronald, 213x2, 222xx6-~7,

soman" versus "majontarian,"

2 2 3 « 2 ; on equality, 45, 79, 213x3;

35-36, 37, 212«/; indirect versus

on "personal" preferences, 103¬

direct, 36, 37; cycles m, 37—39;

06; on Rawts, 119

unanimous direct democracv, 37, 54-55; limited liberalism model

Bentham, fcremv, 23, 2 0 9 « S

5 1 , 5 2 , 5 6 , 5 9 - 6 3 ; hypothetical

and, 39; practices of constitutional

Berger, Fred R., 226x5

contract theories, 52; nonunani-

Economic inequalities, 181—84

democracy, 13 i—32; elections m,

Berlin, Isaiah, 146, 2 2 6 « 4 , 2 2 6 « 6 ,

mous consent, 5 2 , 5 9 - 6 3 ; tacit

Economic prerequisites, minimal,

132-33, 2 0 0 - 2 0 1 ; proportional

consent, 5 2 , 5 7 - 5 8 , 6 1 , f->9; una­

representation and majority rule

Education, 171-72, 2E0«7, 217x f i

228x3

184-85

Bilhngton, James, 227nl4

nimity rule for, 5 2 , 5 6 - 5 7 , 5 8 - 5 9 ,

in, İ 3 3 ; vulnerability to "circu­

Blackmail, 152, 153

6 1 ; quest for, 5 3 - 6 7 ; options on,

Educational voucher systems, 21 In 10

larity," Î 6 0 - 6 İ ; public opinion

Blind-alley theories, 4 1 - 4 2 , 48,52,

54; "unanimous direct democ­

Elections, H 2 - H , 2 0 0 - 2 0 1 , See also

and, 174,199; incentives and, 199;

racy," 5 4 - 5 5 ; hypothetical-choice

structure of, 199; with "limited

54,57, U5 Bloom, Allan, 2, 2 0 5 « 3

theories, 55-56; "voluntary orga­

Boycotts. See Market boycotts

nization" model and, 59-bO;

Brainwashing, 55, 66

majority rule and, 60; hypothetical

Braybrooke, David, 2 2 4 « i 2

consent, 62; shared understanding

Brennan, William, 116-27n11

and, 6 3 - 6 5 ; good-faith disagree­

Broad, C. D„ 176-77, 230wf6

ments and, 6 4 - 6 5 ; manipulated or

Brontenbrenner, Une, 229 nW

indoctrinated consensus, 6 5 - 6 6 ;

Buchanan, fames, 212x4

transcultural criteria for, 67; strict versus loose interpretation of, 68¬

Cable television, 187, 190, 195, 231«37 Captive audiences, 191, 193-94 Categorical Imperative, 80 Children, 154, 171-73

69, 116—17; legitimacy problem and, 121-22; jurisdiction problem and, 122-23; definition of, 2 1 5 x i 6 Context-independent versus contextdependent solutions, 3, 4

China, 155

Cost-benefit analysis, 109, 2 ibnlO

Choice. See Consent

Cranston, Maurice, 45, 2 1 3 x i

"Circularity," ot democracies, 160-61 Citizen sovereignty, 101, 110 Cleavages, 130, 134, 156-58 Chentahsm, political, 167-68 Cohen, Marshall, 2 2 2 « 7 Collective benefit, 2 2 5 « Î 7 Communications technology, 186-90, 194,195,231x37

ma|ontv rule," 212«2 Dialogue: neutral dialogue, 4 6 , 5 1 , 5 6 ,

230«IS Daniels, Norman, 218x6, 2 1 9 « 2 4 , 223«2

equality of lite chances and, 32—

25; "unmampulated dialogue"

33; liberty and, 3 3 - 3 4 ; "reverse

and, 146-48; creative works and,

discrimination," 34; Rawls on, 95,

147-48; definition ot, 147, 163;

2 1 0 « 5 ; distributive justice and,

freedom ot contributions to politi­

110-11; definition o f , 2 1 1 x i i ; ver­

cal dialogue, 153-54; ot interests

sus equal outcomes, 211«X; and

across cleavages m society, 156¬

preferential treatment tor minority

58; participatory civility and, 157; and opportunities tor ex­

groups, 2 1 1 « f / Equahtv; definition of, 23; maxmim

pression, 189-97; amplifiers ot

violating, 24, 2 5 - 2 6 ; total wel­

political dialogue, 194-95; struc­

fare violating, 24—25; numbers

tural manipulation ot political

criterion violating, 26; of lite

dialogue, 194

chances, 3 2 - 3 3 ; R, D w o r k i n on,

Discrimination, 133-38. See also Distribution: structure problem and,

45, 79, 213x3; liberalism and, 4 5 - 4 6 ; neutrality and, 9 6 - 9 7 ; background conditions and, 180¬

2 2 - 2 3 ; Ackerman on, 99-100,

8 1 ; process equalities, 180-82,

101 ; o t self-esteem, 180-85

2 3 0 « 2 2 ; economic inequalities,

Distributive justice: issues m, 5 - 9 ;

Darkness at Noon (Koestler), 14

democracy and, 35; and neutrality,

Decision procedures. See Impartial

rationality, and consistency, 96;

decision procedures

lem and, 2 9 - 3 5 ; merit and, 3 1-32, 33, 210x2; trilemma of, 3 1 - 3 5 ;

79; and legitimacy problem, 124¬

Equal opportunity Dahl, Robert A., 36, 2 1 2 « f , 215x/2,

Voting Equal opportunity: assignment prob­

preferences based on, 110— Î1

181-84; government's rote m, 2 1 3 « 3 ; "undominated equality," 220«34 Ewen, Stuart, 231x27

236

Index

Explicit manipulation, 148-56, 160, 165-67,226«10

Index

I t 0 - 1 3 ; jurisdiction problem and,

State, 82, 9 6 - 1 0 1 ; in Rawls's .4

2, 4, 2 0 2 - 0 3 ; definition of, 34, 46;

H2-13

Theory of justice, 8 2 - 9 6

systematic versus unsystematic,

1 xpression, opportunities tor, 1S9-97

Goode, William J., 221x4/

impartiality, 50-52

4 6 - 4 8 ; Rawls's alternative to,

Expressive-function argument of

Gooden, Robert E., 221x42

Incentives: negative incentives, 173;

213x5

voting, 1/6 hiimess, 1 4 0 - 4 1 , 143, 2 10« i ,

Crav, John, 2 2 6 « 5

and importance ot public opinion,

Greenawalt, Kent, 152, 2 2 7 « 14

174; tor political participation,

Jencks, Christopher, 210x6

Greenstem, t-red I . .

¡ 7 4 - 8 0 , 199; positive incen-

jurisdiction problem: libera! theory

111x6

225«/7 Feinbcrg, Joel, 191, 208»fO, 2 0 8 » i 4 , 23 I»34 Fislikm, Shellev 1'isher, 2 2 6 « S Hathman, Richard E „ 2 2 8 « 2 6 Foot, Phihppa, 2 0 8 « 6 Frednckson, George, 224«ft Freedom. See Liberty Freedom of association, 154, 193, 225x2 freedom ot political expression, 146, 153-54, 156-58, 172, 189-97, 2 25 «2 Freedom ot thought, 121, 164-65 Future generations, and problem of value, 9-19 Galston, W i l l i a m A., 219«2fo

Hardin, Russell, 2 2 9 » i3 Hare, R. M „ 102-03, 2 2 1 « x 2 - 4 H a r m , identitv-specitic notion of, 9-H) Harm principle, 18-19, 208x/4 Flarman, Gilbert, 2 1 , 208x6 Flarsanvi, John C., 80, 106, 218x3, 222x9 Hart, H . L. A., 20, 140-41, 208x4, 222x6,224«13 Hook, Sidnev, 2 2 3 » 4 , 2 2 5 » 14 FIvpothetical-choice theories, 55-56, 68,82-83 Ffvpothetical-contract theories, 52 Ffvpotheticais. See Realistic hypotheticals

Gauthier, David, 217«/7 General welfare, and structure problem, 22-23 Generalized-consequences principle of

tives, 174; decentralization and,

and, 43; political thought experi-

179; selective incentives, 179-80;

ments and, 52; impartial decision

distribution of selt-esteem and,

procedures and, 8 1 - 8 2 ; on the

180-85; economic inequalities

good, 112-13; self-reflective soci-

and, 181-84; minimal economic

ety and, 115, 128; Rawlsand,

prerequisites and, 184-85; adver-

119; legitimacy problem and,

tising and, 186-87; tor specialized elites, 188-89; tor competitive

122-23,128 justice: pure problem of, 19-20,

voices m government, 196-97;

2 1 ; "simple justice," 20; Rawls s

representation vouchers as, 198¬

theory of, 4 5 - 4 6 , 51, 62, 8 2 - 9 6 ;

99; tor formation ot two-parent

social meanings and, 64; Walzer's

families, 2 l l x f 0

theory of, 64, 65, 66; Ackerman's

India, 129-30, 2 2 4 « f indifference curves, 4 6 - 4 7 , 7 3 - 7 4 , 76, 216x/

!

theory of, 82, 9 6 - 1 0 1 . See also Distributive justice; Systematic justice

Individual-choice problem, of political obligation, 61-63

Kaldor-Hicks compensation test, 109

Indoctrinated consensus, 65-66

Kant, immanuel, 80

Indoctrination problem: liberal theory

Kaplan, Abraham, 2 16x20

Idea I-regarding theories of good,

and, 4 3 - 4 4 ; political thought

Karl, Terry, 232x2

(01-02, 110-12, 223x/.V

experiments and, 52; consent

Kingdon. j o b n W., 231x3/

and, 53-54, 6 5 - 6 7 ; self-reflective

Klosko, George, 225«/S

Identity-independent theories: prob-

voting, 176-77

lem ot value and, 13-15; replace-

society and, 115; and legitimacy

Koestier, Arthur, 14, 208xíO

Gewirtb, Alan,218»2

abilitvaiul, 13-17; procreational

problem, 122, 128; liberty and,

Kohlberg, Lawrence, 218x4

Golden Rule, 80

liberty and, 18-19

145; and dissent and disagreement,

Goldstein, Joseph, 2 2 9 « 9

klentitv-specific notion of harm, 9-10

Good: Rawls's " t h m theory ot the

Identity-specific theories, and procrea-

good," 8 3 - 9 6 , 100-101, 110,

237

tional liberty, 18-19

223 » 5 Inequalities. See Economic inequalities; Equal opportunity

Laissez-faire construction of liberty, 160-62,168 Lasiett, Peter, 206x2, 2 0 6 « « , 208x3,

146; Rawls's model conception

Impartial decision procedures: as basis

of a moral person, 9 4 - 9 5 ; ideal-

for systematic liberalism, 79-80-,

regarding theories of, 101-02,

examples of, 7 9 - 8 0 ; versus notion

110-12, 2 2 3 « f # ; want-regarding

Interests. See Preferences

Lasswell, Harold, 64, 2 1 6 « 2 0

of interests, 8 0 - 8 1 ; jurisdiction

theories of, 101-02, 108, 109¬

Interpersonal comparison of want

Legitimacy problem; obligation and,

problem and, 8 1 - 8 2 ; in Acker-

10, 2 2 3 « / i ; neutral theory of.

man's Social justice in the Liberal

Insulation strategies, and economic inequalities, 182

satisfaction, 108-10 Intuitionism: versus systematic theory.

2 1 0 x 4 , 2 1 4 « 3 , 2 1 5 x 7 , 218x4, 223x/9, 228x3, 229»/5

5 , 4 2 - 4 3 , 129-45, 2 1 5 » i 4 ; authority of the state and, 115-29;

23«

Legitimacy problem (continued) ideal theory and, 117-19; as ethi-

and, 5 0 - 5 3 ; quest tor consent and,

MacLean, Douglas, 213x3

M o r a l self-expression, 2 2 9 - 3 0 « IS

53-6/; and impartial decision

Madison, James, 60

Morality. See Good; Value problem

procedures, 7 9 - 8 0 ; hypothetical-

"Madisonian" versus "majoritarian"

issue, 118; and state's use o l au-

choice theories ot, 8 2 - 8 Î ; process

democracy, 3 5 - 3 6 , 3 7 , 212«/

thoritative torce, 1 2 0 - 2 1 ; consent

equalities and, 180-8 I

cal issue, 118: as sociological

theory and, 121-22; full versus

239

Index

Index

Liberty: problem ot assignment and,

Motivation, See incentives M u t u a l voluntariness, 190-93

Mafia, 147 " M a j o r i t a r i a n " versus "Madisonian"

Natural rights, 2, 202

3 3 - 3 4 ; Rawls o n , >4-9.1, ( 4 5 - 4 6 ;

nation and, Ml, 128; jurisdiction

distributive justice and, 110-1J ;

Majority rule, 60, 133, 215x9

Negative incentives, 173

problem and, 122-23, 128; and

ot political culture, 144-65; self-

Manipulation: of consensus, 6 5 - 6 6 ;

Neuhaus, Richard, 205x4

v

democracy, 3 5 - 3 6 , 37, 212x/

Nagel, Thomas, 82, 2 I 8 « 6

minimal solution to, 121; indoctri-

reflective society and, 144-65;

versus "unmanipulated dialogue,"

Neutral dialogue, 46,5 i , 56, 79

indoctrination problem and,, 145;

146-48; explicit manipulation,

Neutrality: options for hypothetical-

and supplv ot essential benefits,

Berlin o n , 146; M i l l o n , 146, 158,

148-56,160, 165-67, 2 2 6 x ( 0 ;

choice theories, 8 2 - 8 3 ; in Rawls's

124, 128; conditions tor, 124¬

164; Scanlon o n , 146; "urrna-

strong manipulation, 156-58,

" t h i n theory of the good," 83-84,

25; consensual practices and, 124,

mpulated dialogue'' and, Î 4 6 - 4 8 ;

164-65; structural manipulation,

8 6 , 9 1 , 9 3 , 9 5 - 9 6 , 110; Ackerman

126-27; dialogic nature ot con-

utilitarianism and, 146; explicit

156-57, 161, 194

on, 9 6 - 9 7 , 100. 101; definition

ditions for, 124-25; minimally

manipulation and, ¡ 4 8 - 5 6 , 160;

voluntary provision and. 124, 125;

cleavages and, 156-58; freedom

self-reflective practices and, 124,

ot expression and, 156-58; strong

¡ 2 7 , 129-44; and criteria for ac-

M a r x , K a r l , 135, 224x9

manipulation and, 156-58; struc-

ceptable theory, 127-28; liberty

Mason, David T., 2 0 5 « 2

tural manipulation and, 1.16-57,

and, 185-86; self-reflective society

Mass communication. See Communi-

161; and political "truths," 158¬

and,201-03

.19; laissez-faire construction ot,

Maximin, 23-26

norms ot evaluation internal to that political practice, 12 3-25;

Market boycotts, 151-52, 166,

theories of the good, 110-13; of

227x13

cations technology

of, 96; equality and, 9 6 - 9 7 ; in claims or interests, 122—23. See also Impartial decision procedures

*

Nonunanimous-actual consent, 59, 63, 68 Nozick, Robert, 2 0 7 « 4 , 2 1 4 « 4 , 2 1 6 -

160-62, 168; intervention and,

" M a x i m u m " notion of the general

1 7 « « 2 - / 6 , 223x20,115nl6\

L e w , Leonard W . , 2 2 8 « 2 7

162- 63; activist conception ot,

conception of justice, 8 6 - 9 0

on the minimal state, 5 1 , 68¬

Liberal education, 210x7

163- 97; political chentahsm and,

Levenstcin. P., 2 2 9 « i t i

Liberalism: false dilemmas o n , 1 ¬

Î 6 7 - 6 S ; capacities and, 170-73;

2; limited liberalism model, 4,

incentives and, ¡ 7 3 - 8 9 ; legitimacy

39; criteria tor acceptable theory

problem and, 185-86; opportuni-

ot, 4 1 - 4 5 , 127-29; differentiat-

ties and, 189-97; tor conterruit',

ing anions; alternatives, 4 1 - 4 2 ,

benefits w i t h i n the family, 2n«/0.

45-50; as individually binding,

See also headings beginning w i t h

4 2 - 4 3 ; failure to be prescriptive

freedom

and, 42, 45-50; indoctrination problem and, 4 3 - 4 4 ; jurisdiction problem and, 43, 44; individuatversus social-choice question o n , 44; definition of, 4 5 - 4 6 ; systematic intuitiomsm and, 46—47; unsystematic intuitiomsm and, 4 7 - 4 8 ; moral priorities and, 49¬ 50; political thought experiments

Mayhew, David R., 23 l x Ï /

78, 214x2; and doctrine of full

Meehl, Paul E., 229x13

compensation, 6.8, 71—77; unani-

Mciklejohn, Alexander, 225x2

mous acceptability in argument

M e r i t : assignment problem and, 3 1 ¬

of, 6 8 - 6 9 ; on "independents,"

32, 3 3 ; equal opportunity and, 31-32,33,210x2 M i l l , John Stuart, 60, 146, 155, 158, 164,208«/4, 228«f9

Limited liberalism, 4, 39

M i n i m a l state, 68-78, 214x2

Lmdhlom, Charles t . , 1 6 0 - 6 1 ,

M i n i m u m : guaranteed minimum, 88¬

2 2,8 uni 9-30 Little, L M . D . , 109,222nJ4 Locke, John, 5 7 - 5 8 , 6 1 , 69, 215x6 MacCallum, Gerald C , j r . , 2 2 8 « 3 Macfntyre, Alasdair, 213x7 Mackie,J. L , 218x2

89; Rawls o n , 8 8 - 9 2 ; " m i n i m u m

7 2 - 7 3 , 7 5 , 120, 2 1 7 « ¿ 6 ; on protection services versus "self-help enforcement," 7 2 - 7 4 , 217x16; and indoctrination for preference formation,

7 8 - 7 9 ; on obligation,

141-42 Numbers criterion, 2 4 - 2 6

standards of provision," 2 2 4 « f 2 Mirrlees, j . A . , 2 2 2 « J 7

Obligation: legitimacy and, 5, 42¬

Mishan, E.J., 206x6

4 3 129-45, 215x14; "voluntary

Moore, Barrington, Jr., 66, t U ,

organization" model and, 59¬

;

1 8 0 , 2 0 6 M I 0 , 2 1 6 « 2 4 , 223x2/,

60; individual-choice problem

2 2 4 « 7 , 2 2 4 « i f , 230x19

of, 6 1 - 6 3 ; promise keeping and,

240

Index

Index

Obligation (continued; 129-30; selt'-refiective practices

Pitkm, Hanna..S8, 214x3, 2 ¡ 5 x 7 , 2 15M

Rawls, John, 4, 2 0 5 . 2 0 9 , 2 1 3 - 1 5 ,

"Restricted utilitarianism," 103-06

218-21,223, 225, 230; on the

Riker, W i l l i a m H . , 229x14 Robbins, Lionel,7, 1 0 8 - 0 9 , 2 2 2 x x / 2 -

and, 129-44; justifiable nature of,

Political, dehtution of, 145, 225«/

priority problem, 3, 28; on pri-

130; authoritarian regimes and,

Political chentahsm, 167-68

mary goods, 6 , 8 0 , 8 4 - 9 0 , 92, 93,

131; and essential benefits, 135¬

Political thought experiments, 50-53

1 1 0 , 2 1 8 x 5 , 2 2 2 - 2 3 « / « ; argu-

Roscnbloom, Lauren, UStilH

37, 139-44; fairness and, 1 4 0 - 4 1 ;

Polsbv, Nelson, 213x6

ment against equality, 24; theory

Runciman, W. C , 2 1 0 « 4 , 2 3 0 « 2 5

strength of, 2 2 3 « 3

Pool, Ithiel de Sola, 231x29, 2 3 t x 3 7

of justice, 4 5 - 4 6 , 5 1 , 62, 8 2 - 9 6 ;

Ryan, Alan, 222x6

Otfe, Claus, 2 3 2 « 2

Population problems, 10-11, 15, 17

'"original position" of, 56, 79,80,

Olson, Mancur, 178-79, 229» 11

Positive incentives, 174

214w2; hypothetical-choice theory

Sabato, Larry j . . 2 3 2 « 3 S

On Liberty ( M i l l ) , 155

"Preference" utilitarianism, 15-16

m A Theory of justice, 8 2 - 9 6 ,

Sartori, Giovanni, 212x2, 2 K i w i ,

Opinion polls, deliberative, 2 0 0 - 2 0 1 ,

Preferences: value problem and, 7¬

1 0 0 - 1 0 1 ; neutrality in, 83-84,

232x3

8; indoctrination tor preference

Opportunities: for receiving consci-

formation, 78-79; and theories ot

entious political views, i 8 9 - 9 1 ;

the good, S01-02; fanaticism and,

mutual voluntariness and, 190¬

102-03, 107; personal preferences

93; tor expressing conscientious

versus external or public-regarding

political views, 194-97

preferences, 105-04; utilitarian

Ordeshook, Peter C , 2 2 9 « 1 4

approach to, 106-07; and interpersonal comparison of want

Page, Benjamin I . , 231x32

satisfaction, S08-I0; choice ot

Pareto noncomparahle, 109, 20iix i

which are to he counted, 108;

Pareto principle, 7, 108, 109, 110,

based on distributive justice,

206«.? Parh't, Derek, 13,207x5 Participation: capacities tor, 170; incentives tor, 174-80, 199; irrationality of, S75-76,17K-79; and principle of hypothetical generalization, 176-77; expressivctunction argument of, 176; generalized-consequences principle ot, 176-77; motivations tor, 177-78; group size and, 178-79; distribution of self-esteem and, 180-85, 2 3 0 « 2 i ; economic i n equalities and, 181-84; advertising and,186-87 Participatory civihtv, 157, 190 Particularity requirement, 43, 223«/ Paternalism,8,111-12,223x19 Phmens hum i Frollope), 165-67

¡ 1 0 - 1 1 ; neutrality and, 122-23 Preferential treatment tor minority groups, 21 biJ J Presidential selection, 2 0 0 - 2 0 ! Primary goods, 80, 84- ><>, 1 i n , l

218x5,218«i6, 222-23«/« Priority problem, 3, 28, 205x6 Process equalities, 180-82, 230x22

" t h i n theory of the good," 8 3 - 9 6 ,

Scanlon, Thomas, 146, 225n3

1 0 0 - 1 0 1 , U 0 , 146; on rational lite

Schauer, Frederick, 2 2 6 « 5

plans, 8 4 - 8 6 , 93; on " n i a x i m m "

Schmitter, Philippe, 197, 232x2

notion ot the general conception

Schudsou, Michael, 231x28

of justice, 8 6 - 9 0 ; on income and

Schwartz, Ihomas, 11, 2 0 7 « 6

wealth, 8 7 , 9 2 , 95; on the special

Scitovsky compensation test, 109

conception, 87, 9 2 - 9 3 ; on guaran-

Second Treatise (Locke), 57-58

teed minimum, 8 8 - 8 9 ; on model

Selective incentives, 179-80

conception ot moral person, 94¬

Self-critical political culture, 146-47.

95; on fairness, 1 4 0 - 4 1 , 210x5; on liberty, 145-46; on economic redistribution, 185; development of alternative to intuitiomsm by, 213x5; on moderate scarcity, 214x/3; on ideal theory, 214x12, 223x/; on social primary goods, 218x5 Realistic hypotheticals: example

Promise keeping, 129-30

Nozick's argument tor the minimal state, 68-78 Redistribution, and economic in-

38 Rae, Douglas W,, 20, 25, 206//4,

equalities, 183-85 Reich, Charles A . , 196, 23 ¡ « 3 0 Relativism, 2, 6 5 - 6 6 , 202

208x3, 213x6, 2 1 5 » 4 , 2 1 9 « 2 0 ,

Religion versus amoralism, 2, 202

221x43

Replaceabihty, and identity-

Rational life plans, 8 4 - 8 6 , 93 Rationality, 220x3/

224« 7 Sati. ¡ 2 9 - 3 0 , 2 2 4 x « l - 2

of, 5 1 ; unanimity and, 6 7 - 6 9 ;

Racial or ethnic discrimination, 133¬

¡3

86, 9 1 , 93, 9 5 - 9 6 , 110; on the

Procreatioual liberty, 18-19 Public opinion, 127, 174, 199

241

independent theories, 13-17 Representation vouchers, 197-99

See also Self-reflective society Self-esteem, 1 3 8 - 3 9 , 1 8 0 - 8 5 , 2 3 0 « 2 i Selt-reflective society: compared with systematic justice, 5; moral conflicts and, 9; criteria tor, 115-17, 127—28; legitimacy problem and, 117-29, 2 0 1 - 0 3 ; and provision ot essential benefits, 124, 128, ¡ 3 5 ¬ 37, 139-44; consensual practices and, 124,126-27; minimally voluntary condition for, 124, 125; self-reflective condition ot, 124, 127, 129-44, ¡ 5 9 , 160, 164; and differentiation among alternatives, 127-28; and individually binding requirement, 128; jurisdiction problem and, 128; nonmdoctrination criterion and, 128; social conditions tor lull membership i n , 137-39; self-esteem and, 138-

242

Index

Index

Self-reflective society (continued) 39; and liberty of political culture, 1 4 4 - 6 5 ; and activist conception or liberty, 163-64; conditions

243

four minimum tests of, 2 7 - 2 9 ;

"Rillock, Gordon, 2 1 2 « 4

and, 12-19; identity-independent

transitivity and, 28-29

Tussman, Joseph. 5 9 - 6 0 , 215«/1

theories and, 13—15; "'preference"

Subsistence needs, 219x22

T w a i n , M a r k , 147, 2 2 6 « «

utilitarianism and, 15-16; harm

Systematic justice: limits of, 1-39;

Tyranny, 60, 63, 66, 215x12, 216x23

ot activist liberty and, 165-97;

impediments to, 2 - 4 ; context-

background conditions and, 168¬

independent solutions and, 3, 4 ;

97; viability ot, 169-70, 2 0 1 - 0 3 ;

definition ot, 3; moral progress

capacities and, 170-73; incentives

and, 3, 4 ; "priority problem" and,

and, 173-89; opportunities and,

3; compared with selt-rettective

189-97; and competitive voices

society, 5; issues in distributive jus-

principle and, 18-19 Veto. See Unanimity rule

Unanimity, and realistic hypothcticals, 67-69 Unanimity rule, 5 6 - 5 9 , 6 1 , 212x4, 215x13 Unanimous direct democracy, 37,

Victimhood, acceptance of, 6 6 , 111, 134,224x1/ "Voluntary organization" model, 59-60 Voting; incentives for, 174-80;

tn government, 196-97; and

tice, 5 - 6 ; value problem in terms

representation vouchers, 197-99

ot immediate difficulty, 6 - 9 ; value

"Undommated equality," 120n34

hypothetical generalization, 176¬

problem and future generations, 9¬

Universal consent, 52

77; expressive-tunction argument

19; structure problem and, 19-29;

"Unmanipulated dialogue," 146-48

of, 176; classic voting paradox,

assignment problem and, 29¬

Unsystematic versus systematic intu-

209x14. See also Participation

Selt-respect, Rawls on, 95. See also belt-esteem Sen, Amartva, 23, 2 0 9 « « , 2 U « 4 , 218«3,221x2,222x9.222x17 Shared understanding, and consent, 63-65

35; democracy and progress and, 35-39 Systematic theory: versus intuition-

Shue, Henry, 2 0 6 « !

ism, 2, 4, 202-03; and impartial

Simmons, John, 2 1 2 - 1 3 « /

decision procedures, 79-80

Singer, Peter, 15-16,79-80, 208x1/, 213x4,217x1,218x4

Systematic versus unsystematic mtultiomsm, 4 6 - 4 8

Smart, j . J. C , 222x10 Smith, Adam, 9 1 , 135-39, 2 1 9 « 2 2 , 221«2,224x# Social justice in the Liberal State (AckermanS, 82, 96-101 Social mobility, and economic inequalities, 182-83

Tacit consent, 5 2 , 5 7 - 5 8 , 6 1 , 69 Iheory of justice, A (Rawls), 8 2 - 9 6 , 100-101 " T h i n theory ot the good," 83-96, 100-101,146 Thompson, Dennis E, 230x2/

Special conception, 87, 92-93

'ihomson, Judith Jarvis, 2 1 , 208x6

Spheres of Justice (Walzer), 63¬

Thorndike, E. L., 7, 2 0 6 x x 4 - 5

64, 119 Strauss, Leo, 2, 2 0 5 x 3 , 2 2 6 « 4 Strong manipulation, 156-58, 164-65 Structural manipulation, 156-57, 161,194 Structure problem: pure problem of justice and, 19-20, 2 1 ; utilitarianism and, 2 0 - 2 2 ; assignment problem and, 22; distribution and, 22-13; general welfare and, 21-13; cases concerning, 2 4 - 2 8 ;

Tocqueville, Alexis de, 60 lotal welfare: violating maximin, equality, and the numbers crite-

54-55

itiomsm, 4 6 - 4 8 Utilitarianism: value problem and, 12-19; replaceabihty and, 13— 17; "preference" utilitarianism, 15-16; vulnerability ot, 16-17; arguments aga-mst, 2 0 - 2 2 , 9 7 ¬ 98, 108; distributive objection to,

1 0 1 - 0 2 , 1 0 8 , 1 0 9 - 1 0 , 223«1S Wasserstrom, Richard, 2 2 4 « 4

Singer's reconstruction of, 79-80;

Wealth; Rawls on, 87, 92, 95; Acker-

Ackerman's objection to, 9 7 - 9 8 ,

man on, 99; distributive justice

108; Hare's theorv of, 102; "restricted utilitarianism," 103-06;

and,110-11 Weisbrod, Burton, 222x17

preferences and, 106-07; Pareto

Welfare economics, 109, 144

principle and, 108; liberty and, 146

W e t l b a n k J . H . , 205x2 White supremacy, 133-35

Vacuous theories, 4 1 - 4 2 , 4 8 , 5 2 , 57, 115 Value problem-, immediate difficulty and, 6 - 7 ; preference satisfaction

ing, 26

and, 7 - 8 ; paternalism and, 8; and

LYollope, Anthony, 165-67, 228«/

problem, 6—7 Want-regardmg theories ot the good,

cal utilitarianism, 51-52, 7 9 - 8 0 ;

and, 6 - 9 ; want-regarding criteria

" T n l e m m a " ot equal opportunity, 31-35

215x/5, 2 1 6 « 2 2 , 2 3 0 « 2 4 Want-regarding criteria, and value

Warner-Amex Qube system, 3 6 - 3 7

rion, 2 4 - 2 5 ; maximm violating,

28-29

Walzer, Michael, 6 3 - 6 6 , 78, 119, 184,

2 4 - 2 5 ; equality and, 46; classi-

2 5 - 2 6 ; numbers criterion violatTransitivity, and structure problem,

"ethic" ot, 175; and principle ot

future generations, 9 - 1 9 ; contextdependent strategy and, 9—10;

Whitman, Walt, 16 Wiggins, fames W., 226x4 Williams, Bernard, 3 1 , 2 1 0 « 4 , 2 I 3 « 4 , 2 1 8 x 3 , 2 2 1 « 2 , 221x4, 2 2 2 x « 9 ~ i 0 , 222x17 Wilson, William fulius, 230*23 Wolff, Robert Paul, 3 7 , 5 2 , 5 4 - 5 7 , 6 1 , 2 1 2 « 4 , 2 1 4 x 1 , 2 1 5 x 5 , 215x9

identity-specific notion ot harm

wbiiheim's paradox, 223x4

and, 9 - 1 0 ; laissez-faire and, 11;

Wrongful lite lawsuits, 12, 2 0 6 - 0 7 x 3 ,

restriction and. I t ; utilitarianism

207x7