Copyright (c) 1994 Michigan Law Review
Michigan Law Review
92 Mich. L. Rev. 1503
LENGTH: 25383 words
PHILOSOHY AND THEORY: A MORE DEMOCRATIC LIBERALISM:
Rawls. New York: Columbia University Press. 1993. Pp. xxxiv, 401. $ 29.95.
Joshua Cohen *
* Professor of Philosophy and Political Science, Massachusetts Institute of
Technology. B.A. 1973, M.A. 1973, Yale; Ph.D. (Philosophy) 1979, Harvard. -
Ed. I am grateful to Frank Michelman and Michael Sandel for discussions of
drafts of their reviews of
Political Liberalism, to John
Rawls for countless discussions on the themes of his book and for helpful comments
on an earlier draft of this review, and to participants in political theory
seminars at Yale University and Wesleyan University for their suggestions.
... This fact by itself is sufficient to make the appearance of
Rawls's second book,
Political Liberalism (Liberalism), an important event. ... If Liberalism is right, then it is
possible to combine fundamental moral pluralism - to take seriously one sort of
difference - with consensus on a conception of justice suited to the equal
citizens of a democratic society. ... To be sure,
Rawls contrasts the ideal of overlapping consensus on a political conception of
justice with the communitarian aspiration to achieve social unity through a
shared conception of human nature and the human good. ... I propose now to
show how claims about the objectionable dependence of the original position on
a particular philosophy of life can be turned into the internal tension in
justice as fairness - the problem in Theory's account of stability - that
Liberalism aims to address. ...
What do we do when we find the truth? ... When men learned the Earth was round,
did they allow their geographers to continue to teach that it was flat?
... If you would see the monuments of a society that has come to consider the
truths that Jesus Christ taught us as one among an indefinite variety of moral
codes by which to live, look around you.
Amen, and Happy Easter.
I. Social Unity and Moral Pluralism
When Peter Laslett published his first collection of essays on Philosophy,
Politics and Society in 1956, he reported that
"for the moment, anyway, political philosophy is dead."
n2 As the book reviews in this annual Survey indicate, things have changed.
Political philosophy is back, and its revival owes much to John
Rawls's A Theory of Justice (Theory).
n3 Published more than twenty years ago, Theory remains the starting point for
contemporary work on justice. This fact by itself is sufficient to make the
Rawls's second book,
Political Liberalism (Liberalism),
n4 an important event.
But the intellectual importance of Liberalism reaches well beyond
[*1504] the biography of its author and the recent history of political philosophy.
Rawls's book is a deep and original examination of a fundamental problem of modern
politics. Modern societies are marked by manifest ethical, religious, and
philosophical disagreements among citizens.
n5 Moreover, the disagreements are of a special kind. Although citizens commonly
regard the moral, religious, and philosophical views of others as false, they
need not regard others as unreasonable for endorsing those views.
n6 Because human reason appears not to converge on a single moral outlook, we
seem to face
"a plurality of reasonable yet incompatible comprehensive doctrines" (p. xvi). What are the implications of these doctrinal conflicts - this
"fact of reasonable pluralism" (p. xvii) - for our understanding of the requirements of justice and the
possibility of a just society?
A. Democratic Toleration
Liberalism addresses this question against the background of the account of
justice as fairness advanced in Theory. In Theory,
Rawls proposed an ideal of a well-ordered, democratic society featuring consensus on
a conception of justice rooted in the value of fair cooperation among citizens
as free and equal persons.
n8 But Theory,
Rawls now thinks, did not take the fact of reasonable pluralism seriously enough.
The presentation suggested that justice as fairness depends on a comprehensive
liberal philosophy of life - that only people who endorse a view of our nature
and of the human good that emphasizes independence, choice, and self-mastery
have good reason to endorse justice as fairness.
Liberalism asks, then, whether justice as fairness can be freed from this
dependence. Can views that disagree about moral fundamentals - some of which
reject a comprehensive liberal philosophy of life - nevertheless agree on a
political conception of justice rooted in
"values of equal political and civil liberty; fair equality of opportunity; ...
economic reciprocity; and the social bases of mutual respect between
[*1505] citizens" (p. 139)? Or does the fact of reasonable pluralism imply that we ought to give
up on the idea of a consensus of justice, that democratic politics can never be
more than a combination of individual calculation, group bargaining, and
assertions of discrete collective identities - when democracy works well - and
deceit, manipulation, and naked force - when democracy works badly?
In a world full of cruelty, depravity, and grief, we ought not to dismiss the
virtues of a politics of group bargaining within a framework of rules that win
general compliance -
"a mere modus vivendi" (p. 145). Still, Liberalism defends the possibility of doing better: of
achieving a consensus on political justice under conditions of fundamental
moral, religious, and philosophical disagreement.
The key to that possibility is that political values - for example, the value
of fair cooperation among citizens on a footing of mutual respect - are
extremely important values and can be acknowledged as such by conflicting moral
conceptions, by views that disagree with one another about ultimate values and
about the best way to live.
n10 To be sure, those views will explain the importance of political values in
very different terms:
n11 for example, as rooted in autonomy,
n12 or self-realization,
n13 or human happiness properly understood,
n14 or the appropriate response to life's challenges,
n15 or the value of individuality,
n16 or the equality of human beings as God's creatures.
n17 These competing explanations of the political values will in turn manifest
themselves in conflicting views about individual conduct and personal virtue.
Still, an affirmation of the importance of political values is not the unique
property of a particular moral outlook. For this reason, the different moral
views that flourish in a society governed by a conception of justice rooted in
the ideal of fair cooperation on a footing of
[*1506] mutual respect may each have good and sufficient reason to support that
conception as the correct account of justice and not simply as a suitable
accommodation to conditions of disagreement. Citizens who endorse different
moral axioms may still arrive at the same theorems about political justice, and
some people may simply endorse a view of justice without resting that
endorsement on a more comprehensive moral theory.
In such a society, we have an
"overlapping consensus" on a
"political conception of justice."
n19 Citizens achieve social unity because they all accept that conception and so
agree to conduct the fundamentals of political argument on the shared ground
that the conception makes available and to set aside for political purposes
their deep, ultimate, and persistent disagreements about what we are like, what
the world is like, and how best to face its demands.
This account of the combination of unity and pluralism rests on a new
interpretation of the ideal of toleration - call it
n20 - paralleling the new interpretation of the social contract advanced in
Theory. In Theory,
"to generalize and carry to a higher order of abstraction the traditional theory
of the social contract."
n21 The combination of social unity and moral pluralism captured in Liberalism's
idea of overlapping consensus generalizes and carries to a higher order of
abstraction the conventional idea of toleration.
Conventionally understood, toleration is a substantive political principle
condemning the imposition of an authoritative form of religious worship or, in
a more expansive version, an authoritative form of personal morality.
n22 Aiming to provide a conception of toleration better suited to
"the historical and social circumstances of a democratic society" (p. 154),
Rawls's political liberalism deepens the idea of toleration and
"applies the principle of toleration to philosophy itself" (pp. 10, 154). That is, in addition to accepting the substantive requirement
of toleration, Liberalism presents toleration as a condition on political
justification, at least when the question concerns
"constitutional essentials" and
"basic questions of justice."
n23 Given the plurality of incompatible yet reasonable views held by equal
citizens in a democratic society, the ideal of fair cooperation recommends that
we free the vocabulary and premises of political justification from dependence
[*1507] any one view. Put otherwise,
Rawls suggests that when we understand political power as
"the power of free and equal citizens as a collective body" (p. 136) and take account of the fact of reasonable pluralism, we will want to
be sure that political argument on fundamentals proceeds on grounds that are
acceptable to citizens generally, not in the terms provided by a particular
philosophical or religious tradition (pp. 136-68, 216-18).
To be sure, it may be impossible to gain support for a conception of justice
from all views. But perhaps support for the conception, and a willingness to
conduct public political argument in its terms, will come from the
"reasonable comprehensive doctrines" (p. 59) held by reasonable citizens: the views held by people who are
concerned to cooperate on terms that others accept and who recognize that
reason itself does not select a single comprehensive view.
The central line of thought in Liberalism, then, is that we can achieve the
good of consensus on justice without comprehensive moral agreement;
n25 the absence of comprehensive agreement does not reduce politics to
calculations of individual advantage, interest-group bargaining, or the
self-affirmation of discrete collective identities. Instead, because political
values are highly important values and are recognized as such within a wide
range of moral conceptions, consensus on a conception of justice is possible
under conditions of reasonable pluralism and must accommodate those conditions
if it is to suit the equal citizens of a democratic society.
B. Reconciliation Without Metaphysics
Rawls's project in Liberalism bears certain important similarities to Hegel's in his
Philosophy of Right,
n26 and it will be instructive to sketch both the commonalities and the
differences between their projects.
In his political theory, Hegel aimed to reformulate a classical ideal of
political society, which supposed that citizens share an understanding of
justice and the human good,
n27 in light of the post-Reformation idea of unbridgeable differences among
citizens on fundamentals. How is it possible, Hegel asked, to achieve the good
of shared commitments in the face of apparently ultimate differences in
interest and outlook that are so much the focus of the energies of modern civil
society? How, in Hegel's terms, can we give stable expression to both the uni
[*1508] versal and particular aspects of our nature?
Rawls share broadly similar questions and both endorse the hopeful possibility of
reconciling apparently competing demands of unity and difference. Their
proposals about how to achieve that reconciliation differ profoundly, however,
both in substance and in the insight about the reconciliation they expect
philosophy to provide.
Hegel located his answer within a generally antidualistic, logico-metaphysical
theory. His philosophical system revealed our nature as free beings,
n30 showed how our differences are less fundamental than we are prephilosophically
inclined to think, linked the expression of our free nature to the institutions
of a state whose aim is the realization of the good - understood as the
expression of our nature
n31 - and showed how that expression and those institutions were the natural
upshot of historical evolution.
Rawls, evaluative theories are matters of reasonable disagreement, and for that
reason we ought not to build a conception of political justice around the view
of the good advanced within any one such theory. Moreover, the reconciliation
of social unity and moral pluralism cannot proceed on the terrain of
metaphysics. Because there are ultimate, reasonable disagreements about
metaphysical doctrines, a general philosophical argument against dualisms, for
example, cannot provide part of the case for overcoming the specific tension
between pluralism and social unity.
n33 Political philosophy, if it seeks to operate on the shared ground available to
equal citizens in a pluralistic public, cannot rest on a metaphysical theory of
our true nature, nor can it provide any assurances, grounded in such a theory,
about the ultimate expression of that nature in history.
n34 Its aims must be less ambitious, focused on clarifying how social unity is
possible under pluralistic conditions. Such clarification will not yield the
[*1509] assurances of unity associated with a historical theodicy;
n35 at best it will lead to an understanding of why the hope for reconciliation is
Once we understand how the stable combination of shared principles and
conflicting faiths that defines an overlapping consensus is possible, then we
can see -
Rawls thinks - that it is reasonable to adhere to the ideal; the conditions of its
possibility are not so demanding as to condemn it. In this way Liberalism
"defense of reasonable faith in the possibility of a just constitutional regime."
n36 It argues for the reasonableness of that faith by revealing the commitments it
requires as minimally demanding, emphasizing in particular that people within
different moral and religious traditions can reasonably endorse those
commitments. If Liberalism is right, then it is possible to combine fundamental
moral pluralism - to take seriously one sort of difference - with consensus on
a conception of justice suited to the equal citizens of a democratic society.
But while philosophy can provide that service in a democratic society - that
defense of reasonable faith - it can deliver no greater assurance of the
rationality of what is actual.
C. Consensus? Really?
Those are the aims of Liberalism. They are likely to meet with skeptical
response. The idea of combining disagreement on fundamentals with consensus on
political principles suited to free and equal citizens may strike us as nice
work if you can get it. In particular, it is natural to suspect that the
demands of consensus are less minimal and the faith in its possibility
correspondingly less reasonable than
There are at least four reasons for skepticism about the ideal of consensus,
and I will discuss them in detail in Part IV of this review.
n37 As background for that discussion, I want first to explore more fully
Rawls's new view, tracing the route from Theory to Liberalism - in Part II - and
outlining the strategy of Liberalism itself - in Part III. Before getting to
the route and the strategy, however, I want to enter a caveat.
D. A Different Book
Liberalism is a very abstract book, in ways that contrast sharply with Theory.
Much of the excitement of Theory derived from its claim to argue from
relatively weak, abstractly stated assumptions to powerful, controversial,
substantive claims about justice. Here was an egalitarian and liberal account
of justice, concerned both with the protection of basic civil and political
liberties and with assuring a distribution of resources that would enable
people to make fair use of those liberties, and supported by premises arguably
much less controversial than its conclusions.
Moreover, Theory's many polemical edges helped to sharpen its central claims.
Utilitarianism had dominated the field of systematic moral and political
philosophy, and Theory aimed to displace it.
n39 In addition, Theory proposed an alternative to the ideal of natural liberty -
sharp libertarian limits on the legitimate actions of the state - and to a
liberal pluralism that would ensure fair process but would leave questions of
substantive justice to bargaining in political and economic markets.
n40 To be sure,
Rawls devoted stretches of Theory to the nature of justification, rationality, and
goodness. But the discussion of these matters was never longer - or shorter -
than necessary, and one felt that the discussion was never very far from
first-order issues of justice.
Rawls's presentation of
political liberalism puts substantive questions of justice aside. Here,
Rawls does not focus on the content of justice but on whether justice as fairness
can provide shared political ground given conflicting comprehensive moralities.
Moreover, Liberalism lacks the well-defined opponents of Theory. To be sure,
Rawls contrasts the ideal of overlapping consensus on a political conception of
justice with the communitarian aspiration to achieve social unity through a
shared conception of human nature and the human good.
n41 But communitarianism lacks the sharp definition of utilitarianism,
libertarianism, or liberal pluralism, contributing to the relentlessly abstract
Because it pays less attention to substantive issues of political justice and
lacks such sharply defined opponents, Liberalism is unlikely to generate either
the excitement of Theory or the same interdisciplinary ferment. But these are
caveats, not criticisms. Liberalism is a book of very great depth and
importance. In due course it will likely change the shape of political
philosophy, sharpening political philosophy's autonomy by increasing its
distance from moral philosophy, and perhaps will have similarly salutary
effects on political argument itself.
II. Liberalism: A Philosophy of Life?
Rawls says, addresses
"a serious problem internal to justice as fairness" (p. xv) - the view presented in Theory. In general terms, the problem arises
from a lack of realism engendered by inattention to the fact of reasonable
pluralism (pp. xv-xviii). More particularly, the difficulty emerges in the
account of stability advanced in Part Three of Theory. To locate the difficulty
more precisely, and to see why it is so troubling, I will first sketch three
main elements of Theory, then present an objection that many commentators have
raised about the main line of argument in Theory, and finally restate that
difficulty as a tension internal to justice as fairness.
A. Three Elements of Theory
Theory presents, first, an attractive ideal of a just society - a
well-ordered, democratic society, featuring a consensus on norms of justice.
The content of the consensus is given by two principles:
First Principle: Each person has an equal right to a fully adequate scheme of
equal basic liberties which is compatible with a similar scheme of liberties
Second Principle: Social and economic inequalities are to satisfy two
conditions. First, they must be attached to offices and positions open to all
under conditions of fair equality of opportunity; and second, they must be to
the greatest benefit of the least advantaged members of society.
A society satisfying these principles achieves,
Rawls proposes, some measure of
"reconciliation of liberty and equality."
n43 Suppose that the real value of the freedom guaranteed to a person by the
protection of basic liberties is fixed by that person's command of resources,
rather than by her position relative to others.
n44 Then the two
[*1512] principles together require that a society
"maximize the worth to the least advantaged of the complete scheme of equal
liberty shared by all."
n45 This requirement of maximizing the minimum worth of liberty,
"defines the end of social justice."
Rawls offers a contractual defense of this egalitarian-liberal conception of
justice. Carrying the social contract idea
"to a higher order of abstraction" (p. xv), he argues that the two principles would be chosen in an initial
situation of choice - the
n47 - in which the parties are assumed not to know anything particular about
themselves - about their position in the distribution of alienable resources,
their position in the distribution of native endowments, and the determinate
aims, attachments, or views of the world that comprise their conception of the
n48 Required to choose under conditions of severe ignorance, they are uncertain of
the effects of their choice on their own lives. Concerned to assure that they
can live with that choice wherever they end up, the parties would choose to
Rawls argues, with the strong downside protection assured by the two principles.
Rawls proposes that the various constraints on knowledge imposed in the original
position represent requirements that strike us, on reflection, as reasonable to
impose on norms of justice or on their justification.
n50 Concerns about fairness, for example, and a conception of individuals as equal
moral persons with a conception of the good and the capacity for a sense of
justice fuel these constraints.
B. Original Position: A Liberal Philosophy of Life?
None of these three central elements of justice as fairness has won general
n52 But criticisms of
Rawls's claims about the reasonableness of the conditions imposed in the original
position have been especially sharp among moral and political philosophers.
Though the details of the criticisms take many forms, the central ob
[*1513] jection to
Rawls's construction is that the design of the original position presupposes a
particular conception of the good. It does not, contrary to
Rawls's claims, provide a reasonable device for addressing controversies about justice
among people with different conceptions of the good, because it will only be
found attractive by people drawn to a liberal philosophy of life - one that
holds that individual independence, choice, and self-mastery are the
fundamental values that ought to govern our lives.
Critics have localized the offending bias in different places. Thomas Nagel
Rawls's assumption that all the parties in the original position want
"primary goods" - in particular, income and wealth - as unfairly biased in favor of
individualistic conceptions of the good.
n53 Brian Barry objected to the individualism implicit in
Rawls's contractual method of justification, which proceeds from individual judgments
about what is best for me, all else equal, to judgments about how society ought
to be arranged.
n54 According to Michael Sandel,
Rawls assumed a liberal philosophy of life when he required that we place our
conceptions of the good behind a veil of ignorance.
To see the force of these criticisms, consider Sandel's objection. Reasoning
from behind the veil of ignorance requires that we evaluate norms of justice
without reference to our own conception of the good. It is a puzzling idea.
Why, and how, are we to reason about justice without drawing on our views about
the proper conduct and ends of human life? If we hold the sincere conviction
that a life of self-realization is a better life - ifwe think that such a life
is genuinely better, not simply the life that we prefer - then what reason
could there be for bracketing that conviction when we assess principles of
One reason for such bracketing is that we cannot agree on terms of
[*1514] cooperation for a pluralistic society if the rationale for those terms
premises a particular conception of the good. Peaceful cooperation requires
agreement, and agreement requires that citizens put aside
"the contingencies that set them in opposition."
Rawls's reasons in Theory are not simply a matter of securing social peace. He argues
instead that fairness to citizens as moral persons requires that we not rely on
any particular conception of the good in justifying principles that all will
have to live by. Instead, fairness demands that
"the arbitrariness of the world ... be corrected for by adjusting the
circumstances of the initial contractual situation."
But why is it unfair to people as moral persons to treat them in accordance
with principles of justice chosen on the basis of an account of the best life?
Why correct for the
"arbitrariness of the world" by abstracting from convictions about the best life? Why not correct for that
arbitrariness by encouraging everyone to endorse the truth about the best life?
To be sure, conceptions of the good sometimes set people in opposition; but why
"contingencies"? According to Sandel's objection,
Rawls's answer to these questions itself relies in the end on a particular account of
the best life and a particular view of the person that goes with that account.
We will only take an interest in what is chosen behind the veil of ignorance if
we deny that our fundamental aims and attachments are good indicators of who
and what we are. Moreover, we will be drawn to that denial only if we regard
ourselves as, at bottom, agents unencumbered by fundamental attachments to our
actual ends, as essentially choosers of values rather than as carriers and
renewers of the values of particular traditions and communities - only if we
are attracted to the idea that our basic allegiances themselves are elements of
the arbitrariness of the world and that the unchosen life is not worth leading.
This will do as a statement of comprehensive liberalism, and we can understand
a theory of justice built on these foundations as presenting the political
implications of such a liberal outlook. But,
[*1515] according to the criticisms, the original position's dependence on such
specific commitments disqualifies it from serving as a shared or neutral basis
for settling on principles of justice in a democratic society whose equal
citizens disagree sharply about liberal ideals of autonomy and individuality.
Sandel goes further. He thinks that
Rawls's implicit commitment to a conception of the self as an essentially unencumbered
chooser of ends is not merely morally sectarian; it is also inconsistent with
Rawls's avowed aim of avoiding obscure and controversial Kantian metaphysical
n59 and with our experience of both ourselves and our connections with our
n60 In short, Sandel is concerned not simply to demonstrate
Rawls's own reliance on a view of the good but also to undermine the liberal
conception of justice by exploding the views of the good and the self on which
n61 These further points are not, however, essential for our current purpose.
C. The Internal Problem: Congruence and Stability
Earlier, I mentioned
Rawls's claim that Liberalism addresses a problem
"internal" to justice as fairness.
n62 Thus far, however, I have presented an objection to the original position that
might be thought to operate externally. I propose now to show how claims about
the objectionable dependence of the original position on a particular
philosophy of life can be turned into the internal tension in justice as
fairness - the problem in Theory's account of stability - that Liberalism aims
In characterizing the ideal of a well-ordered society and presenting an
account of its stability,
Rawls makes essential use of the idea of normative consensus.
n63 In a well-ordered society,
"everyone has a similar sense of justice and in this respect a well-ordered
society is homogeneous. Political argument appeals to this moral consensus."
n64 Moreover, this shared sense of justice plays a
"fundamental role" in ensuring that
"the basic structure is stable with respect to justice."
To be sure, some idea of agreement figures in any contractual theory of
justice. But the
Rawls refers to is not sim
[*1516] ply an ex ante agreement on institutions and relations of authority of a kind
associated with Hobbesian and Lockean social contracts.
n66 Closer in this respect to Rousseau,
Rawls supposes that citizens in a just political society share a conception of
justice and that politics is openly guided by that conception.
n67 Justice as fairness aims to specify the appropriate content for such a
conception, the content of the general will for a society of free and equal
This emphasis on the role of consensus in the ideal of a well-ordered society
is understandable. A moral consensus on political fundamentals is a basic good
for at least four reasons.
First, for any conception of justice, the existence of a moral consensus on it
increases the likelihood that social order will stably conform to the
Second, a moral consensus promotes a variety of specific values of
considerable importance. Assuming that norms of justice are not motivationally
inert, consensus on them increases social trust and harmony, supports social
peace, simplifies decisionmaking, reduces monitoring and enforcement costs by
encouraging a willingness to cooperate, and - if public debate and decisions
reflect the consensus - reduces alienation from public choices because citizens
embrace the norms and ideals that guide those choices.
Third, a consensus on norms of justice provides a way to reconcile the ideal
of an association whose members are politically independent and self-governing
with an acknowledgment of the central role of social and political arrangements
in shaping the self-conceptions of citizens, constraining their actions,
channeling their choices, and determining the outcomes of those choices.
n69 When a consensus on norms and values underlies and explains collective
decisions, citizens whose lives are governed by those decisions might
nonetheless be said to be independent and self-governing. Each endorses the
considerations that produce the decisions as genuinely moral reasons and af
[*1517] firms their implementation.
Finally, under conditions of political consensus, citizens achieve a form of
mutual respect. Each offers as reasons for a decision only considerations that
others who are subject to political power take as reasons, and state power is
exercised only within the bounds set by these reasons.
n71 The force of this point as a basis for mutual respect is increased by
recalling the distinction I noted earlier between a unanimous, ex ante
agreement and an ex post consensus on norms of justice that frame political
n72 In a Hobbesian contract of subordination, everyone agrees to submit to a
common agent, accepting the will and judgment of that agent as authoritative.
n73 Nothing in the content of the agreement - nothing manifest in political
experience itself - directly expresses mutual respect.
n74 With a political consensus, by contrast, the authorization of power proceeds
in terms that all citizens accept ex post - in accordance with reasons that are
shared and therefore accepted by all who are subject to the power. That does
provide a basis for mutual respect.
Consensus, then, has its virtues. But not every consensus is attractive. Those
attractions depend on the content of the consensus and on the conditions under
which it is sustained. Suppose, for example, that a moral consensus is
attractive because it provides a way to make self-government - or association
on terms of mutual respect - consistent with the unavoidable chains of
political connection (see the third and fourth reasons stated above). Then the
consensus must be freely sustained and not simply a form of enforced
homogeneity. A consensus is free only if it is arrived at under conditions that
ensure the possibility of individual reflection and public deliberation - for
example, conditions that protect expressive and associative liberties.
Here we arrive at the internal problem of Liberalism. Assurances of expressive
and associative liberties - necessary if the consensus that defines a
well-ordered society is to be free and attractive - are bound to be associated
with moral, religious, and philosophical pluralism.
n75 But can the value of substantive consensus on justice survive such pluralism?
Let us say that a society is liberal only if it strongly protects expressive
and associative liberties. Then, to restate the question: Can there be
political consensus and social unity, given the inevi
[*1518] table pluralism of a liberal society?
n76 Why, in particular, ought we to expect - as
Rawls suggests - that the members of a well-ordered society regulated by
Rawls's principles of justice will find the conditions imposed on the original
position reasonable? According to the criticisms I referred to earlier, the
original position assumes a liberal philosophy of life and presents the
political extension of that philosophy.
n77 If these criticisms are right, then the comprehensive views that some members
of a just society find attractive will likely lead them to reject the original
The discussion of stability in Part Three of Theory suggests that the
criticisms are right. Because it does,
Rawls concludes that his account of the stability of a well-ordered society is in
trouble: that it is
"not consistent with the view as a whole" (p. xvi).
In Part Three,
Rawls advances a two-stage case for the stability of a society regulated by his
principles of justice.
n78 The first stage focuses on the acquisition of a sense of justice -
"an effective desire to apply and to act from the principles of justice the two
principles chosen in the original position and so from the point of view of
Rawls sketches how the members of a just society could be expected, through
membership in a series of institutions - from family, to the associations of
civil society, to citizenship in the state - to acquire an understanding of and
an effective desire to act from a sense of justice to which
Rawls's principles give content.
The second stage shifts attention from the acquisition of a sense of justice
to the congruence of that sense with a person's conception of the good. Here
Rawls argues that the members of a just society would, with reason, regard the
regulation of their conduct by their sense of justice - as given by the two
principles - as itself good for them: that is, they would find their sense of
justice congruent with their good, rather than regarding it as an unwelcome
constraint on the pursuit of their good. If this claim about the good of a
sense of justice is right, then we have an important force for stability in a
Moral pluralism causes troubles for this happy picture. Consider one of the
arguments for congruence:
"acting justly is something we want to do as free and equal rational beings. The
desire to act justly
[*1519] and the desire to express our nature as free moral persons turn out to specify
what is practically speaking the same desire."
n82 The claim that these desires have the same content rests on the argument from
the original position. Or, as
Rawls indicates elsewhere, the
"sentiment of justice" is - for anyone who
"understands and accepts the contract doctrine" - the very same desire as the desire to act on principles that would be chosen
"in an initial situation which gives everyone equal representation as a moral
person," and also the same as the desire
"to act in accordance with principles that express men's nature as free and
equal rational beings."
n83 In the original position, we are represented as free moral persons, so to act
from the principles chosen there is to express our nature as free and not to
"give way to the contingencies and accidents of the world."
Moreover, the argument from the original position not only selects principles
of justice but also requires that those principles take priority in regulating
our conduct. To express
"our freedom from contingency and happenstance,"
n85 then, we need more than a sense of justice given content by the principles
chosen in the original position. We must also give priority to our sense of
justice, assigning it an authoritative role in the regulation of conduct.
A central element in the case for congruence and stability, then, is that
members of a well-ordered society will develop a conception of their nature as
free beings, will regard the expression of that free nature in their own
conduct as a fundamental good, and will understand - because of their
"lucid grasp of the public conception of justice upon which their relations are
n86 - that such expression requires acting from the principles of justice that
would be chosen in the original position, giving those principles a special
The case for the two principles, then, depends upon the case for stability;
the case for stability depends in part upon the case for congruence; and the
case for congruence depends upon an account of our
"nature as free moral persons"
n88 and the desire to express our nature as free.
n89 But this line of dependence strongly suggests that the argument for
congruence, and so the case for stability, depends upon a set
[*1520] of moral commitments and self-understandings that some members of a
well-ordered society will reasonably reject.
For example, some citizens may think that their nature consists in the
possession of various natural, human powers, that the human good consists in a
perfection that fully realizes those powers, and that the requirements of
morality set out the conditions for such perfection. Others may think of
themselves as creatures of a God who imposes obligations that bind their moral
freedom. Such citizens accept moralities that are, to use Kant's term,
heteronomous. They, too, wish to express their nature and not to give way to
the contingencies and accidents of the world. But it is unclear why they should
find the original position a plausible way to specify the content of their
expression. With Locke, they may suppose that their fundamental powers are the
capacity to understand and to act from the Creator's requirements and that they
express their nature by acting from those requirements.
n91 To be sure, adherents of such a view might reject the imposition of a
religious establishment and affirm the importance of the free exercise of
religion. But they would do so because forced religious practice does not
fulfill basic religious duties and so provides no route to salvation,
n92 rather than because a regime of religious toleration expresses their
"nature" as free moral persons. They do not acknowledge themselves to have such a
Some people, then, may reject the characterization of our nature as free; they
will be drawn neither to the reasonableness of the original position as a
rendering of their nature, nor to acting from the principles selected there
because such action expresses their nature.
Rawls concludes that the conception of a well-ordered society presented in Theory
"is unrealistic ... because it is inconsistent with realizing its own principles
under the best of foreseeable conditions" (p. xvii). Under the best of foreseeable conditions, a society that satisfies
the two principles will be a society in which some citizens reject the
conception of our nature used in Theory to underwrite the original position and
the account of congruence.
"The account of the stability
[*1521] of a well-ordered society in Part III is therefore also unrealistic ..." (p. xvii).
How, then, is it possible to achieve consensus on a conception of justice
suited to a democratic society of equal citizens and to reap the benefits of
that consensus, given the pluralism of comprehensive moralities that inevitably
marks such a society? More particularly, can the presentation and defense of a
conception of justice for a democratic society be freed from the unacceptably
narrow premises of a comprehensive moral liberalism? That is the question of
Rawls's answer to the question of
political liberalism contains two parts. The idea of a political conception of justice plays a
central role in the first part; the idea of an overlapping consensus is the key
to the second.
A. A Political Conception of Justice
Given the plurality of comprehensive moralities, the claim that consensus is
possible faces a threshold problem. A conception of justice can win general
acceptance only if it can be suitably formulated. Its formulation must be
understandable to citizens with competing views of the good and must not itself
preclude acceptance by some citizens.
n94 Some conceptions of justice would, however, on their face, be unacceptable to
some citizens - for example, if the conceptions appeal to values that are not
implicated in public institutions or that reasonable people might reject.
Suppose an account of justice requires a distribution of resources that ensures
equal pleasure, or suppose it mandates a distribution that enables each citizen
to come equally close to achieving his aims. Both views face troubles because
citizens reasonably disagree about the relative value of pleasure and of
relative achievement. So these conceptions would be, on their face,
Rawls calls a view that is suitably formulated a
"political conception of justice" (p. 11). Three features - each necessary if the conception is plausibly to
provide the focus of agreement, given the fact of reasonable pluralism - define
such a conception:
n96 it must have limited scope, extending only to issues about the basic structure
[*1522] and not to norms of personal conduct or ideals of life; it must draw on ideas
familiar to citizens from the political culture of a democracy, not on ideas
belonging exclusively to particular traditions of moral thought that are not
available to all; and it must be presented as freestanding, not as depending
for formulation or justification on its roots in a comprehensive morality.
n97 In short, a political conception of justice is formulated as autonomous from
comprehensive conceptions of the good with respect to scope, content, and
justification. Each of these three forms of autonomy should contribute to the
possibility of its general acceptance.
To see how these kinds of autonomy help to address the problems about the
original position and veil of ignorance I sketched earlier, consider the aspect
of the political conception that
Rawls refers to as a
"political conception of the person" (pp. 18-20, 29-35, 48-54, 86-88). The original position isolates certain
features of people as relevant to its problem of justice, setting aside other
features as irrelevant - and so to be excluded by the veil of ignorance. The
relevant features include certain basic moral powers: the capacities for a
conception of the good - to form, pursue, and revise such a conception - and
for a sense of justice.
n98 The irrelevant features include sex, race, natural abilities, and determinate
conceptions of the good.
As my earlier discussion of the original position indicates,
n99 Theory was not entirely clear about the basis of this distinction between
relevant and irrelevant characteristics. This lack of clarity contributed to
the impression that justice as fairness was the political expression of a
comprehensive moral liberalism. Thus,
Rawls often referred to the morally relevant or irrelevant as if to say that the
distinction derives from a comprehensive moral doctrine.
n100 Sometimes he referred to the irrelevant characteristics as
"contingencies," as though to suggest a metaphysical foundation for the distinction.
n101 Sometimes - as I in
[*1523] dicated in my discussion of congruence and stability
n102 - he suggested that the distinction is rooted in an account of
"our nature," permitting both metaphysical and moral interpretations.
Liberalism draws the distinction between relevance and irrelevance in the same
place: the power to form, pursue, and revise a conception of the good and the
power to form and act from a sense of justice are relevant; and sex, race,
natural abilities, and determinate conceptions of the good are irrelevant (pp.
29-35). But the point of the distinction, according to Liberalism, is to
present a conception of the person that will play a role in a political
conception of justice, and so Liberalism underscores that the conception of the
person is itself political in each of the three ways noted earlier: scope,
content, and justification. Thus, irrelevant should not be understood
absolutely, metaphysically, or in terms of a general moral view, but only as
implying that a feature of a person is not important for the purposes of
political argument - in particular, not important for political argument aimed
at specifying the requirements of justice for a society in which members are
understood as free and equal. Contingent ought similarly to be given a
nonmetaphysical rendering, as implying that a feature is not relevant to
We can, then, determine which features are
"irrelevant, politically speaking, and hence to be placed behind the veil of
ignorance" (p. 79) by systematizing and extending reasonably familiar ideas about the
justification of political arrangements in a democratic society. This basis is
appropriate for the distinction given the question that justice as fairness
sets out to resolve:
"What is the most appropriate conception of justice for specifying the terms of
social cooperation between citizens regarded as free and equal, and as normal
and fully cooperating members of society over a complete life?" (p. 20). The conception of citizens as free and equal represents a familiar
element of the political culture of democratic societies. The problem is to
determine more precisely what that political conception involves and to address
a longstanding controversy about what account of justice is best suited to
citizens as free and equal.
Thus, we look to settled ideals and convictions about basic democratic
institutions, and to settled understandings about the justification of public
norms in a democratic society, and then draw the relevant-irrelevant
distinction by reference to the characteristics of persons that play a role in
those ideas, convictions, and understandings. One may then call the irrelevant
"contingencies," but with no intention to affirm - or to deny - that an individual could exist
without the feature in question, or to say - or to deny - anything about the
[*1524] importance of irrelevant features in other settings. They are simply
unimportant for the purposes at hand, whatever their metaphysical standing and
however important they may be for other purposes, including other ethical
To be more specific, arguments aimed at establishing that certain properties
are contingent (irrelevant to the problem of political justification) and that
others are aspects of our essential nature (important to that problem) proceed
along at least two main lines. The first seeks to show that current ideals -
for example, of fairness, religious toleration, and racial and sexual equality
- and patterns of political argument - for example, on constitutional matters -
treat certain facts as irrelevant. For instance, it is widely agreed that we
ought to protect certain basic rights - expression, political participation,
conscience, and equal treatment - without regard to social background, sex, or
race. Furthermore, social class ought not to restrict opportunity. These are
clear cases of unfairness. So in reasonably settled understandings of justice,
we treat facts about class, sex, and race as contingencies - matters that are
irrelevant to argument about the justice of basic institutions.
Similarly, the constitutional treatment of religious and political ideals
suggests the irrelevance of conceptions of the good to such argument. For
example, conversion, sin, and religious laxity are not civil offenses. Whatever
its implications for a person's self-conception, being
"born again" has no civil consequences; being born again does not, for example, absolve a
person of contractual obligations undertaken prior to that rebirth or give a
person who is reborn on election day a right to a second vote. Furthermore, in
the case of political ideals, endorsing the legitimacy of the political order
is not - in principle, at least - a precondition for equal political rights, a
point underscored by conventional hostility to regulating expression by virtue
of its content and, more particularly, its viewpoint.
A second strategy is to show that certain features of people are themselves so
dependent on concededly irrelevant facts that topermit them to play a role in
political justification would be tantamount to allowing the irrelevant facts to
play a role. So they too should be treated as irrelevant. The development of
abilities and talents, for ex
[*1525] ample, seems closely linked to the social circumstances and aspirations that
the entrenched forms of argument fix as contingencies. So talents and abilities
ought to be treated as contingencies and not appealed to as fundamental reasons
for differential advantages.
I would need to say much more about these matters in order to evaluate
Rawls's distinction between relevant and irrelevant, and the associated political
conception of the person. I have provided only an outline of the rationale for
the distinction. But its force - and limits - as a response to the original
position's difficulties should now be clear.
According to the objection, the original position rests on a liberal
philosophy of life that places especially great weight on the importance of
choice and that sees the self as, in its fundamental nature, a chooser of its
Rawls's claim that
"the self is prior to the ends which are affirmed by it"
n106 suggests a commitment to such a philosophy. But the political conception of
the person offers a restrictive interpretation of this priority. It neither
affirms nor denies that people could, as a metaphysical matter, exist without
their aims as pure choosers of ends, as
"Kantian transcendent or disembodied subjects" who are
"shorn of empirically-identifiable characteristics";
n107 or that citizens can imagine their own lives continuing with their final aims
different from what they now are; or that they would actually be the same
persons if their final aims were radically altered; or that, as an ethical
matter, the aims of citizens are worth pursuing only if chosen by them.
Instead, the political conception ties both the content of and the rationale
for the alleged priority to the aims of a theory of justice for a democratic
society and to the public availability of the idea of citizens as equals.
According to the political conception, citizens are prior to their ends in
that no particular ends are mandatory from a public point of view, and citizens
must be assured favorable conditions for reflecting on and revising their aims,
should they wish. For example, obligations that a person has by virtue of her
conception of the good do not have public standing as obligations. Moreover,
civil standing does not alter with shifts in fundamental aims, no matter how
much a person's self-conception is bound up with those aims. This is not to
say, however, that all obligations are matters of self-legislation, or that
fundamental values are a product of choice, or that they are only worth
pursuing if they are such a product. The political conception of the person
does not state a position on these matters.
n108 That conception is simply a statement about how citizens should be represented
for the purposes of
[*1526] political argument. For this reason, nothing in the very statement of the
political conception of the person conflicts with comprehensive moralities that
are not organized around the ideal of autonomy or around the thought that we
are, by our nature, free beings.
B. Overlapping Consensus
Suppose this enterprise of reinterpretation succeeds - that a liberal
conception can be formulated as a freestanding political doctrine, facially
independent of any comprehensive moral conceptions. Providing this formulation
would help in securing social unity under conditions of moral pluralism. It
would overcome the threshold problem that I disclosed earlier.
n109 But it would not suffice to defeat the objections to or the associated
internal troubles for
The objection to the original position was not that its very statement reveals
it to be part of a liberal philosophy of life but rather that citizens will be
drawn to it - will find it a reasonable device for settling on principles of
justice - only if they endorse such a philosophy. So, too, even if the
formulation of a political conception is freed from objectionable sectarianism,
it may still win support only from adherents to a single comprehensive doctrine
or a narrow range of such doctrines. Consider an analogy: logical laws can be
formulated in a freestanding way, independent of controversies in the theory of
meaning. Still, certain logical laws - such as the law of excluded middle -
will arguably be found compelling only by people who hold particular views in
the theory of meaning - for example, that we can understand the meaning of
statements whose truth or falsity transcends our recognitional capacities.
Take the claim that people with different conceptions of the good have the
capacity to choose and revise their conception, as well as a fundamental
interest in circumstances that enable them to revise it should they wish. This
claim is an element of the political conception of the person, and it is one of
the aspects of the person known behind the veil of ignorance. In presenting a
political conception of the person,
Rawls shows that endorsing this claim does not consist in believing that
reflectively held convictions are uniquely worthy of our full allegiance or
that we are essentially choosers of ends rather than servants of God; by
formulating the political conception of the person as a freestanding view, he
shows that that conception does not imply any particular nonpolitical view of
the person, for the content of the political conception is very different from
the content of any such view. Nevertheless, it may be true that we only have
good reason to accept the political conception and the associated account of
justice if we endorse a comprehensive liberal philosophy of life.
Therefore, we may be misled when
Rawls says that
"accepting the political conception does not presuppose accepting any particular
comprehensive ... doctrine; rather, the political conception presents itself as
a reasonable conception for the basic structure alone" (p. 175; emphasis added). Even if the conception presents itself as political,
accepting it may still presuppose accepting a comprehensive view if a single
view provides the only reasons for accepting the political conception.
Here, then, we need the idea of an overlapping consensus: the idea that all
people can - for the different reasons provided by their own reasonable
comprehensive moral views - think that the same conception of justice is
correct and not merely an accommodation required to ensure a stable peace under
conditions of moral pluralism.
Rawls imagines, for example, an overlapping consensus composed of four views, each
of which is reasonable and each of which provides a rationale for
political liberalism: one rooted in a Kantian morality of autonomy, another in utilitarianism, and a
third in a religious conception that endorses free faith, while the fourth
political liberalism as one part of a pluralistic ethical view - a part that needs to be adjusted
to the other parts, though it is not derived from them.
Consider, for example, the political conception of citizens as free. How might
these four views endorse the idea that citizens are free as a shared basis for
political argument? One aspect of
political liberalism - captured in the veil of ignorance - is that citizens have the capacity to
revise their aims and an interest in favorable conditions for such revision
should they wish to pursue it, but that for the purposes of an account of
justice the determinate aims of citizens are irrelevant. The Kantian view
accepts this aspect of
political liberalism because the Kantian conceives of the reflective choice of ends as a feature of
an autonomous life and holds that the protection of citizens who wish to pursue
such choice is required by respect for their dignity as autonomous. The
utilitarian might endorse the interest in revising aims as fundamental because
true happiness - whether consisting of pleasurable feelings or the satisfaction
of rational desires - depends on the possibility for such revision.
n111 The conception of free faith also endorses this interest because of its
connections with the appropriate fulfillment of religious obligations: that
such fulfillment must reflect genuine
"inward persuasion of the mind."
n112 In short, each view accepts, for its own reasons, a conception of persons and
their basic interests that provides shared ground in political argument.
But an overlapping consensus on a conception of justice cannot be sustained
simply by the existence of points of agreement, for points of
[*1528] disagreement among reasonable views are bound also to exist. Each view implies
that the others are a mixture of truths and falsehoods. Why, then, should
citizens who endorse a particular moral view - who believe it to be true - not
hold that political power ought to be used to advance the values of that view?
n113 Why should they endorse as correct a view of justice that is confined to
shared ground and accept that public discussion must provide justification
according to that view? Three considerations explain this restraint.
1. It is worth emphasizing again that citizens who hold competing
comprehensive views may nevertheless agree that the values incorporated within
the political conception are important values and that the norms and principles
included in it provide genuine reasons. From within each comprehensive view,
the political conception states nothing but the truth, even if not the whole
truth. As my example about the interest in favorable conditions for revising
aims indicates, adherents to different moral conceptions do not think that the
political conception reflects a compromise required to ensure a stable peace.
Instead they believe that the conception expresses a correct account of basic
2. In accepting as correct a conception of justice that does not include the
whole truth, by their lights, citizens acknowledge both the reasonableness of
at least some of the views that conflict with their own and the
unreasonableness of imposing arrangements whose justification depends on
aspects of their own view that others reasonably reject.
The Kantian, for example, rejects the utilitarian conception of the good as
the satisfaction of rational desires, but he can understand the utilitarian
view as an application of theoretical and practical reason, appreciate the
considerations that lead to that view, and see how its endorsement is
compatible with a willingness to cooperate on terms that others can accept. So
the Kantian's endorsement of a political conception that contains only part of
the truth - that takes political autonomy rather than moral autonomy as a
fundamental value in political argument
n115 - is not simply a compromise required by the existence of other views.
Instead, the Kantian thinks it would be wrong to impose institutions and
policies justified by a political conception that is rejected by others who are
themselves fully reasonable.
3. As the second point suggests, the key to the possibility of overlapping
consensus is that a conception of justice articulates values of great
importance and that the existence of a shared political conception itself
constitutes an important good. I suggested a case for these claims in my
earlier remarks about the good of consensus on a conception of justice.
n116 Suppose that case is correct and that the political consensus does articulate
important values. Suppose, too, that different, conflicting comprehensive moral
conceptions agree on a conception of justice. Then adherents to those moral
conceptions will be able to say - each from her own standpoint - that it is
normally best to uphold institutions satisfying the conception of justice, even
when policies selected by the institutions are inconsistent with her particular
moral conception. These conflicting moral views will also agree that it is
normally best to conduct public discussion about political fundamentals in
terms of the values and principles of the political conception rather than to
appeal to a particular comprehensive moral view that others reasonably reject.
Much here rests on
"normally." Views that form an overlapping consensus will rarely, if ever, hold that
political values are ultimate. For that reason, there may well be occasions
when a comprehensive moral view supports the conclusion that the stakes are too
high and that political values must give way. Adherents to such a view may be
optimistic and see deep disagreement as an occasion for a high-stakes effort to
persuade others to drop their ultimate convictions; more likely, however, they
will think that the time for debate has ended. Because political values are not
widely regarded as ultimate values, this kind of breakdown is always possible.
To that extent the bases of civic unity are fragile: such fragility is the
inevitable result of the pluralism of comprehensive moralities.
Despite this fragility, one can hope that civic breakdown will not occur. More
immediately, the existence of cases in which it does occur, together with the
fact that we all have more to say than we are prepared to say in politics, does
not imply that consensus is impossible or unattractive, or that operating on
the shared ground of a political conception of justice is merely a compromise
dictated by circumstance.
I said earlier that the idea of consensus is likely to elicit a skeptical
n117 and I want now to explore some of the sources of that skepticism. I will
consider four objections to the idea of an overlapping consensus.
n118 Because I find the idea of consensus attractive, I
[*1530] will present replies to each of the objections. The four objections form a
natural sequence, beginning from the thought that it is simply naive to expect
consensus in a large-scale political society. The second and third objections
present different variants of a common concern: that the case for consensus
reveals that it can be achieved only through an objectionable exclusion of
views that fall outside the consensus. The fourth objection accepts the
possibility of consensus but argues that an overlapping consensus truncates
political argument; by effectively taking comprehensive moral views as given,
overlapping consensus forestalls the deeper agreement that might emerge from a
more vigilant political criticism.
A. Hopelessly Naive
Consider the depth and extent of disagreement on any important political
issue: from abortion and taxes to health care reform and trade policy. Against
this background of disagreement the idea of consensus may strike us as
hopelessly naive. This objection gains added force from
Rawls's rejection of the possibility of comprehensive moral agreement. If we are
prepared to exclude convergence on morality quite generally - to affirm the
fact of reasonable pluralism as a
"permanent feature of the public culture of democracy" (p. 36) - why should we find agreement on a political conception of justice
It will not suffice to say that political agreement is more plausible than
comprehensive moral agreement because matters of political justice are a proper
subset of moral issues, and agreement on a proper subset is more likely than
agreement on the wider set itself. Issues about abortion are a subset of the
moral, but I think most of us would be nearly as surprised by consensus on the
morality of abortion as by consensus about morality in general. Moreover, it is
not enough simply to point to the possibility of agreement on a political
conception of justice among people who have different comprehensive views. That
possibility is established by the coherence of the idea of an overlapping
consensus. But the coherence of that idea does not suffice to show that it is
any more realistic than agreement on comprehensive moral views, which is also
To answer these doubts, we need a mechanism - a social or political process
that might produce convergence on political values but that does not similarly
generate consensus on comprehensive moral values. The right place to look for
such a mechanism is at the level of shared institutions, as they might
plausibly play an educative role with respect to political ideas, but not with
respect to comprehensive moral
n119 Before explaining this role, however, I need to make two background points.
First, it is worth emphasizing that we are concerned with agreement on
conceptions of justice, not with a convergence of interests. Of course, if
people are moved principally by interests, then the absence of such convergence
may imply that agreement on justice is not a matter of great moment. Still, the
immediate issue is convergence on justice - which, after all, seems less
hopeless than an absence of conflicts of interest.
Second, the agreement on justice will be limited in various ways; it will not
extend to all judgments of policy or even to all fundamentals that might
possibly arise. In overlapping consensus, agreement on procedures and basic
protections - in
Rawls's terms, on constitutional essentials and matters of basic justice - suffices to
make the remaining disagreements less important or less immediate.
Even with these two points of clarification, it may still seem unrealistic to
expect agreement on matters of basic justice, given persisting differences in
moral outlook. But perhaps we can address this concern about realism if we keep
in mind the institutional aspect of the acquisition of political ideas and
values. Although it is implausible to expect agreement on a conception of
justice to result from a convergence of practical reasoning conducted within
different, independent moral traditions, it is not so implausible to expect
such agreement to emerge from the acquisition of ideas and principles embodied
in shared institutions.
n120 As I indicated in the earlier discussion of stability,
Rawls's views about the development of moral-political understandings are deeply
n121 The acquisition of conceptions of justice proceeds via participation in
institutions of various kinds - families, associations, the state. The
formation of moral-political ideas and sensibilities also proceeds less by
reasoning or explicit instruction - which may be important in the formation of
comprehensive moral views - than by mastering ideas and principles that are
expressed in and serve to interpret these institutions. The underlying idea -
which traces to Rousseauean and Hegelian theories of will formation - is that
people living within institutions and a political culture shaped by
[*1532] certain ideas and principles are likely to come to understand those ideas and
principles and to develop some attachment to them.
Take, for example, an aspect of the political conception of the person - the
(political) idea that citizens are equals in possessing to a sufficient extent
the capacity for a conception of the good and for a sense of justice. This idea
is manifest in various ways in the practices and traditions of interpretation
and public discussion associated with citizenship in a democracy: for example,
equality before the law, or equal civil and political rights. Moreover, a
stable democratic political process, in which individuals and parties seek to
win support for their projects from other citizens, puts some pressure on views
to endorse the idea of citizens as equals.
n123 We can understand how citizens quite generally might acquire an understanding
of one another as moral equals by holding the position of citizen and living in
a political culture in which ideas of equality associated with that position
play a central role in political discourse.
The different comprehensive views that accept this political understanding of
equality will have different ways of fitting it into their broader conceptions.
Some will accept political equality as following from their more fundamental
moral or religious convictions; others will accept political equality as an
important, nonderivative value. But what keeps the expectation of general
agreement from being hopelessly naive is the plausible thought that citizens
who grow up within a reasonably stable democracy will find this
(self-)conception familiar and attractive: the political ideas
"expressed" in common, public institutions and appealed to in the culture to justify those
institutions will shape citizens' moral-political education.
Of course, the acquisition of moral ideas does not proceed exclusively through
institutions. So citizens will need to find or to make a place within their
comprehensive views for the political ideas and self-conceptions they acquire
through institutions: to find a way to combine, for example, a conception of
human beings as servants of God bound by natural duties with a political
conception of citizens as free, equal, and self-governing. Many views -
religious, moral, philosophical - have sufficient internal flexibility or
openness to make such ac
[*1533] commodations possible.
n125 But because political values are a subset of moral values, we have no reason
to expect the accommodation of shared political values to produce a more
comprehensive agreement that extends to moral values generally; no
institutional mechanism in a democratic society imposes pressure to overcome
fundamental differences among moral, religious, and philosophical traditions.
The pressure of the shared institutions in forging political agreement ends
even as considerable disagreement remains.
To be sure, this explanation provides only the barest sketch of a reply to the
objection about realism, but it makes an essential point that is commonly
overlooked when political philosophy is understood simply as applied moral
philosophy. Political ideas are institutionalized in a democratic society in
ways that comprehensive moral - or religious or philosophical - ideas are not.
More precisely, comprehensive ideas are institutionalized - if at all - in more
particular social associations that are not shared: different churches, for
example, advance different comprehensive views. So citizens acquire conflicting
comprehensive views through such associations. Political ideas, by contrast,
are acquired in part through shared associations. So an account of how
consensus might emerge on a political conception of justice among citizens
living in a political society can draw upon resources unavailable to an account
of a more comprehensive moral consensus. Of course no political mechanism can
guarantee agreement: the development of an overlapping consensus requires, as I
mentioned, that separate traditions are each able to accommodate the political
values within their view, and nothing guarantees that they are able to do so.
But we are not looking for a guarantee;
n126 we only need a mechanism that might plausibly produce convergence of political
values even under conditions of moral pluralism.
Finally, given the institutional explanation, it is not surprising that the
political consensus is itself limited, being principally a matter of agreement
on basic political values - such as fairness, equality of citizens, and
liberty, for example - rather than an agreement on a definite conception of
justice. For no definite conception - no specific interpretation and balancing
of the basic political values - is institutionally expressed in the way that
the basic values themselves are. Of course there may be an optimal way to
articulate and combine those values, and then the underlying agreement may
recommend a specific conception.
n127 But that is a matter for further argument - for political philosophy. It is
not a conclusion that is manifest from the values themselves or from their
B. Unattractively Explained
Let us suppose that this explanation of the difference between the
expectations of political and comprehensive moral consensus can be sustained.
Then, a second objection seems natural: that the institutional explanation
limits the attractiveness of the consensus it explains. An attractive
explanation would see political consensus as emerging from a convergence of
argument within conflicting moral and religious traditions, or perhaps from
unconstrained practical discourse among adherents of separate traditions.
n128 In either case, political consensus would reflect the operation of reason,
driving separate moral positions to common political conclusions.
By contrast, the explanation I have just sketched traces the emergence and
reproduction of political consensus to shared background institutions. Through
these institutions, citizens acquire moral-political ideas - including ideas of
person and society. Moreover, the role of the institutions is crucial, because
the content of a political conception for a democratic society does not rely
only on practical reason; rather, it draws also on
"political conceptions of society and person" - in particular, the idea of citizens
"regarded as free and equal in virtue of their possessing the two moral powers
to the requisite degree."
n129 Thus, the political conception of justice expresses an ideal of political
deliberation and justification in a democratic society, not a more generic
conception of justification through reason.
n130 So it is especially implausible to think that the political conception might
arise simply from the work of practical reason within and among traditions.
Precisely this implausibility, however, may make an overlapping consensus seem
less a result of free reflection than a product of the institutional
constraints under which political argument proceeds.
This criticism rests on an exaggerated distinction between institutional
constraint and free reflection. Recall the background assumptions: the
deliberative liberties are in place - and have a fair value - and the society
features a range of comprehensive views, which provide intellectual and
practical elaborations of different moral, religious, and philosophical
traditions. Suppose now that as a consequence of democratic institutions and
the position of equal citizen within these institutions, the members of such a
society acquire a shared understanding of the equality of moral persons.
[*1535] that citizens adjust their comprehensive views - if they have them - to
accommodate this shared understanding. For example, they adjust their
conceptions of flourishing and true happiness to the many directions in which
citizens develop and pursue their native abilities; they adjust their
conception of the conditions required for salvation to accord with the
circumstances of a political society that includes citizens of different
faiths; and they adjust their views of the
"proper conduct" of men and women to take account of the equality of men and women as moral
persons. Under these conditions, we face strong pressure to regard the
acquisition of shared ideas and the adjustment of comprehensive views as a
matter of learning rather than mere inculcation via institutional constraint:
how, we may ask, does the inculcation work, given a background of deliberative
liberties with a fair value? Why are the shared ideas that emerge resilient in
the face of challenge?
Of course, we can only presume learning. Someone may be able to show how the
agreement reflects power, limited information, confusion and weakness born of
moral cacophony, or a deep disparity between the apparent logic of institutions
and their real operation. But the presumption is significant and imposes a
serious burden on those who would treat the agreement merely as a product of
inculcation and constraint.
Consider again the political conception of the person: in particular, the idea
of the equality of citizens as rooted in their possession of a capacity both
for a sense of justice and for a conception of the good. Assume that people
brought up in a just, democratic society find this conception compelling, and
that this is so whether their comprehensive views are secular - perfectionist,
utilitarian, Kantian - or religious.
n131 Suppose further that considerations within their own comprehensive views
support the conception of citizens as moral equals. But suppose also that
citizens reflect on the fact that their traditions would likely have evolved
differently under different institutional conditions; had their traditions not
been subjected to these particular institutions, the traditions would not now
provide the resources to support the political conception. If, for example,
these same citizens had been raised in a more hierarchical society, their
conceptions of flourishing, salvation, and gender might not be so egalitarian.
How, they might ask, could the fact that a conception of justice is rooted in
the political conception of the person give any special weight to the
conception of justice, given the historically contingent attractiveness of the
conception of the person?
The problem with this objection is that it neglects the content of
[*1536] the institutional conditions under which the political conception of the
person emerges. Recall that we are assuming that the deliberative liberties of
citizens are secure and that citizens have a fair chance to exercise those
liberties. Though the political conception of the person does not arise through
reasoning that proceeds outside an institutional setting, it must successfully
withstand pressures arising from the institutionalization of deliberation
itself, from freedom of expression and association, and from a fair
distribution of resources.
n132 The attractions of the political conception of the person, then, are assumed
to survive criticisms that might be directed against it. If they do survive,
then how could the mere fact that people would find other views attractive
under different circumstances provide a reason for rejecting the views that
they do hold? The fact that citizens' views are in part institutionally
explained should not lead us to think that an allegiance to them is merely a
product of political circumstance rather than free reflection, given the
specificity of the institutions and their role in protecting public
C. Objectionably Exclusionary
The third objection begins from the observation that the difficulty of
achieving consensus depends on the range of positions among which agreement is
sought. As this range narrows, the likelihood of agreement increases. But at
the same time, concern intensifies that this narrowing requires arbitrary and
exclusionary restrictions on the set of relevant alternatives. Such
restrictions would of course diminish the interest of the agreement.
Let us bring this observation a little closer to the ground:
Rawls tells us that an adequate conception of justice must be able to win the
"reasonable citizens who affirm reasonable comprehensive doctrines."
n133 Other views likely exist and ought not to be suppressed:
"That there are doctrines that reject one or more democratic freedoms is itself
a permanent fact of life ..." (p. 64 n.19). But the fact that certain doctrines do not accept the political
conception of justice as the correct account - the fact that they do not
compose part of the overlapping consensus - raises no troubles,
Rawls claims, for the justification of the political conception. If a political
conception is rejected by unreasonable comprehensive views, the legitimacy of
the exercise of power through institutions justified by that conception is not
undermined. Reasonable comprehensive doctrines
"are the doctrines that reasonable citizens affirm and that
political liberalism must address" (p. 36).
The difficulty should now be clear: although confining the range of relevant
conceptions to reasonable views increases the likelihood of
[*1537] agreement, it also prompts concern that the label unreasonable will be used to
exclude views arbitrarily - simply to ensure agreement or to silence dissent.
We may state the objection as follows: If unreasonable simply amounts in the
end to an abstract abbreviation for
"disagrees with the dominant political conception of justice," then of course all reasonable views will support the political conception. But
then the idea that an adequate conception must win the support of reasonable
citizens who affirm reasonable doctrines will be of uncertain interest. If,
however, reasonable is defined independently from acceptance of the political
conception - say, in terms of a willingness to entertain and respond to
objections - then reasonable citizens will likely affirm reasonable views that
reject the political conception.
To respond, I should first note that even if acceptance of a particular
political conception of justice in part constituted
"reasonableness," the idea of an overlapping consensus would still be of interest. Given the
fact of reasonable pluralism, a political conception that could be supported on
the basis of premises provided by a variety of conflicting comprehensive moral
conceptions would still be desirable. Because such conceptions would be
reasonable in part because of their support for the political conception, we
could not construe support from competing reasonable conceptions as providing
an entirely independent check on the acceptability of the conception of
justice. Still, this constitutive interpretation of reasonable would permit us
to make a case for the thesis that consensus on a political conception of
justice is compatible with moral pluralism - that it does not require agreement
on a comprehensive conception of the good.
Although reasonable person is a normative notion, the constitutive
interpretation of reasonable is not right. Instead, persons count as reasonable
only if they are concerned to live on terms that are acceptable to others who
share that same concern (pp. 48-54). In addition, they must acknowledge the
"burdens of judgment": the conditions that cause disagreement among persons who affirm the
importance of cooperating on terms that others can accept - that is, among
persons who are reasonable in the first sense (pp. 54-56). Thus, reasonableness
is defined abstractly and not - as with constitutive interpretation - in terms
of the acceptance of a particular political conception. It more or less
directly follows from these two features of reasonableness, however, that
reasonable citizens will endorse certain basic liberties (pp. 58-61): how else
could they show that they wish to live according to principles that they can
justify to others, given disagreements with others that reflect the burdens of
But doesn't this characterization of reasonable show that the restriction of
the overlapping consensus to reasonable views endorsed by reasonable citizens
is arbitrarily exclusionary? Perhaps the arbitrariness is not as transparent as
the constitutive interpretation suggests. Still, the restriction may seem to
provide license to define away dis
[*1538] senting views as unreasonable and to exclude them from public discussion,
while celebrating public consensus among the reasonable. Three points suggest
First, we need to distinguish between tolerating a view and ensuring that it
forms part of the overlapping consensus. It is no crime to be unreasonable - to
favor institutions and policies that cannot be justified to others - or to
express an unreasonable view, nor does the endorsement of such a view have any
bearing on basic rights.
n134 The basis for such rights as expression and association is independent of the
content of one's views. Insofar as unreasonable views are
"excluded," then, that exclusion is of a special kind.
Second, it is a mistake to suppose that, as a general matter, dissenting views
turn out unreasonable according to the account provided earlier. Consider, for
example, dissident movements on the left in the recent history of this country.
Why would anyone think that anti-intervention movements, or movements for civil
rights, racial equality, women's equality, economic justice, and gay and
lesbian rights, are or were unreasonable? All these movements appeal, as a
general matter, to political values in the democratic tradition. They struggle
against the injustice of circumstances in which life chances are fixed by race,
class, gender, or sexual orientation. Critics of these movements may disagree
with the ways they have articulated democratic values, but we expect reasonable
people to disagree.
As an example of a view that is at least in part unreasonable,
Rawls mentions - plausibly,I think - the position that would deny to a woman
"a duly qualified right to decide whether or not to end her pregnancy during the
n136 The case for the unreasonableness of this denial proceeds implicitly in two
Rawls supposes that any reasonable view will endorse and seek to accommodate three
political values as relevant to addressing the issue of reproductive choice:
"the due respect for human life, the ordered
[*1539] reproduction of political society over time ... and finally the equality of
women as equal citizens" (p. 243 n.32). Second, he claims that any
"reasonable balance" of these values will support the
"duly qualified right" (p. 243 n.32). To deny the right is either to deny, at the first step, that
the equality of women is an important political value, or to claim, at the
second step, that one of the other values - say, the due respect for human life
- overrides the value of the equality of women, even if we confine our
attention to the early stages of pregnancy.
Assume that the case for denying the right accepts the equality of women and
is based on the value of due respect for human life. What prevents someone who
accepts the three values from rejecting the duly qualified right as
inconsistent with the due respect for human life? The problem is that people
reasonably disagree about the precise content of the value of
"due respect for human life." Given the complexities of the question of the status of the fetus, the
conscientious rejection by many citizens of the claim that due respect for
human life requires that we treat the fetus as a human person in the first
trimester, the weight of the equality of women as a political value, and the
importance of justification to others when such weighty values are at stake,
how could it be reasonable to urge the state to endorse and to enforce the view
that due respect for human life bars first-trimester abortions? Someone who
rejects first-trimester abortions may reply that when it comes to preventing
the murder of innocent babies, being right is more important than being
reasonable. But that reply concedes the point about reasonableness, which is
the only issue I am now addressing.
Coming now to the third point about the exclusionary character of the notion
of reasonableness: it is not arbitrary to worry only about ensuring support
from the reasonable conceptions endorsed by reasonable citizens and therefore
to exclude unreasonable views from an overlapping consensus. Such views do not
aim to find terms that can be justified to others, and to that extent they deny
the values of self-government and cooperation on terms of mutual respect.
Moreover, one of the reasons for seeking common ground among conflicting views
in the first place - for rejecting the appeal to the truth of our own view - is
that we regard it as unreasonable to impose political power on others in the
name of values that they reasonably reject - even if those values are correct.
So the rationale for an overlapping consensus commits us to regarding views
unconcerned with common ground as unreasonable. To permit those views to shape
the content of a conception of justice is to permit the content of justice to
bedetermined by the power of those views to make themselves heard. But no
attractive conception can be built around such an accommodation to power.
D. Overly Accommodating
The final line of criticism I wish to explore accepts the ideal of political
consensus but urges that an overlapping consensus is too limited. There are
several variants of this concern, but I will focus here on one that takes
Rawls's idea of public reason as its immediate target (pp. 212-54).
According to the idea of public reason, we should set aside comprehensive
conceptions of the good in certain political settings - when discussing
constitutional essentials and matters of basic justice (pp. 227-30) - and
conduct political argument on the shared ground provided by political values.
The criticism I have in mind rejects these limits of public reason because the
constraints they impose on political deliberation prevent us from achieving a
deeper level of political agreement than the idea of an overlapping consensus
To be sure,
Rawls describes several exceptions to the requirement of respecting the limits of
public reason - several cases in which it is permissible to appeal to a wider
range of moral values than those within a political conception of justice (pp.
247-52). But limits remain. None of the exceptions mentioned in Liberalism -
and none added in a recent essay modifying Liberalism's account of public
n138 - would permit citizens, in the normal course of political argument, to bring
the comprehensive views of others to the surface for the purpose of criticizing
those views and the political implications that flow from them. Nor does the
Rawlsian view encourage or require citizens to express their comprehensive
conceptions in the course of political debate with a view to opening those
conceptions up to the challenge of public discourse. The account of public
reason may seem, then, to undervalue the importance of forms of critical
discourse that do not respect the distinction between moral and political
argument and as a result to truncate politics and practical reason. This
tendency might seem objectionable for two reasons.
First, actual conceptions of the good may reflect traditions of injustice. A
consensus that assumes such conceptions without challenging them - putting them
behind a veil of ignorance, at the basis of an overlapping consensus, or off
the political agenda - is for that reason less compelling as an account of
ideal justice. According to the objection, if we wish to link justice and
consensus, we need a consensus that emerges from unconstrained discussion, in
which we may call on people to articulate their comprehensive conception of the
good, which others may then challenge.
Second, constricting the arena of public discussion - limiting its scope to
what can now be shared - perhaps excludes constructive possibilities of
consensus and community that might emerge from challenging received moral
traditions. Opening up the public arena by dropping the limits of public reason
allows deeper challenges to existing conceptions of the good, thus permitting a
more expansive consensus to emerge, if only as an ideal of reason.
To clarify the point of the objection, it may help to distinguish two
conceptions of the aim of critical discourse. On one view, the point is to
expose unreflective assumptions, thereby freeing ourselves from illusions and a
false sense of coherence and necessity. This first understanding neither
expects nor hopes that such a critique will generate a new and deeper consensus
in which all previous views are understood as partial versions of the truth.
n139 According to an alternative conception, critique serves as an instrument of
reasonable consensus. Instead of taking differences as fundamental and given,
it invites a more searching public debate about hidden interests, suppressed
alternatives, and moral disagreements with an eye to transcending current
Here I am concerned only with the second line of thought: with the rejection
of the limits of public reason in the name of possibilities of more
comprehensive agreement, and a corresponding rejection of overlapping consensus
for its relaxed accommodation of de facto conceptions of the good. There are
First, as a matter of clarification: to affirm the limits of public reason is
not to deny the importance of a more comprehensive critical discourse, in which
conceptions of the good - even if reasonable - are subject to challenge,
unmasking, irony, and ridicule. Protection of freedom of expression always
permits such discourse, and in some settings - even political settings - it may
be entirely appropriate as a way to clarify views, to change minds, and perhaps
to establish deeper mutual understanding.
The question is whether comprehensive critical discourse is appro
n140 in deliberative settings that are concerned with establishing the basic terms
of political cooperation in a democratic society and sanctioning the exercise
of power to enforce those terms. The idea of the limits of public reason is
"political values alone are to settle such fundamental questions as: who has the
right to vote, or what religions are to be tolerated, or who is to be assured
fair equality of opportunity, or to hold property" (p. 214). Whatever the benefits of more comprehensive critical discourse in
such settings, there is likely to be a cost. Critical discourse is likely to
impede cooperation on terms of mutual respect, particularly when the views at
issue are acknowledged - as I am supposing they are - to be both fundamental
and reasonable. But
"many if not most political questions do not concern those fundamental matters" (p. 214). Accordingly, the case for limits on argument in the conduct of
debate about issues such as trade policy is correspondingly weaker.
Second, given reasonable disagreements, the basis for expecting that a more
comprehensive critical discourse will lead to a deeper consensus is unclear,
which implies that the benefits are also unclear. It appears that
"difference" is a fundamental fact, as fundamental as our commonalities. People disagree
deeply, and political reason appears insufficient to resolve these differences.
Putting aside comprehensive metaphysical theories according to which we all are
the manifestations of spirit, or religious views accessible through faith, what
reason could there be for denying that there are such rationally irresolvable
disagreements? Everything points to the permanence of moral disagreement, and
nothing points against it: there is the fact of disagreement and the absence of
any apparent tendency to comprehensive convergence; we have no theory of the
operations of practical reason that would lead us to expect convergence on
comprehensive moralities; and there is no mechanism of the kind I sketched
earlier in the case of political values
n141 that might produce agreement on comprehensive views.
One might argue that differences are not so deep because adherents of
comprehensive moral conceptions believe their conceptions to be true and think
they can withstand rational criticism. This observation suggests a fundamental
common interest - in the truth, in living according to the best conception, or
in living according to a view that can stand up to rational criticism - that
lies deeper than any of our substantive disagreements about which conception is
in fact true or best and therefore ought to guide conduct.
The availability of such abstract characterizations of common interests that
underlie moral disagreements is of considerable impor
[*1543] tance and may help to secure mutual understanding and respect. It may be
important for me to view people who believe that the best life is a life that
comports with God's prescriptions as having the same abstract, fundamental
interest as I do - an interest in knowing what is true and in living the best
life - even if I cannot imagine myself believing what they believe or
conducting myself as they do. We all know how complex evaluative questions are,
and we can understand how people conscientiously aiming at the same target
might end up in very different places.
Finding deep commonalities of interest within moral differences is, then, a
significant value. Nevertheless, the availability of such common ground gives
us no reason for expecting a more substantial convergence on comprehensive
moralities. The interests are too abstract to provide a basis for such an
expectation. People with conflicting religious convictions might acknowledge
one another as sharing an abstract common interest in believing the truth and
in conforming their conduct to their understanding of the truth. This point of
agreement might, in turn, be important in ensuring mutual respect among people
with conflicting religious convictions. It provides minimal leverage, however,
in resolving religious disagreement, and thus very little reason for expecting
people's religious convictions to converge. Why should comprehensive moralities
be any different?
V. Democratic Toleration and Liberal Universalism
Early in this review, I described
Political Liberalism as a deep and original book. I want to conclude by returning to the sources of
that depth and originality, indicating their continuity with Theory.
There is of course no originality in the thought that people with different
views of life can live together in a political society, and there is some
evidence - relatively little, unfortunately - that toleration is a practical
possibility. But the defense of toleration, when it does not appeal principally
to the very great practical advantages of toleration, commonly proceeds in an
"exclusivist" way. What I mean is that the defense of the claim that a political society
ought to permit different outlooks on life to flourish within it commonly
proceeds from the perspective of one of those outlooks.
John Locke's defense of religious toleration, for example, seems to depend for
its force on a Protestant view of salvation.
n143 Or consider John Stuart Mill's endorsement of individuality in On Liberty, his
[*1544] powerful defense of a society featuring
"different experiments of living."
n144 In the course of that defense, Mill urges that
"it may be better to be a John Knox than of an Alcibiades, but it is better to
be a Pericles than either."
n145 Presumably Mill thought that at least some experiments in living would proceed
more in the tradition of Alcibiades and Knox than of Pericles. The
non-Periclean experiments should certainly be tolerated; Mill summarizes their
toleration in his
n146 His reasons for such toleration, however, reflect the Periclean perspective;
they draw on a conception of human excellence with roots in the
"Greek ideal of self-development."
n147 Mill reveals the depth of these roots when he urges that
"developed human beings are of some use to the undeveloped" and that
"those who do not desire liberty, and would not avail themselves of it" may nevertheless be won to the cause of liberty because they might
"in some intelligible manner be rewarded for allowing other people to make use
of it without hindrance."
Rawls proposes something different, which I referred to earlier as
"democratic toleration." By requiring toleration as a condition for acceptable public justification, he
aims to free the defense of diverse experiments of living from the outlook of
one such experiment. More broadly speaking,
Rawls wishes to free the democratic ideal of a shared arena of public deliberation
among equal citizens from dependence on the particular ethical outlook of any
subset of the public. Whether he succeeds in this enterprise is another matter,
though I find the case compelling for reasons I have already presented. The
point I wish to stress here is that in advancing a democratic conception of
Rawls presents a sustained response to an important line of criticism of classical
liberal ideas of citizen, person, reason, and public. According to the
criticism, the superficial and abstract universalism of these ideas masks a
much deeper parochialism.
Rawls's conception of an overlapping consensus on a political conception of justice
suggests a way to present those ideals as genuinely shared ground.
To be sure, liberal political thought has always been self-consciously
universalistic, speaking in the name of all human beings, and urging the
protection of the rights and interests of all, regardless of race, class, sex,
religion, or any other of the particularisms that distinguish and divide us.
But critics of liberalism have vigilantly revealed the hidden (and
not-so-hidden) exclusions - of, for example, class,
[*1545] race, and gender - that compromise liberalism's defining promise: its capacity
"all" without quite meaning it.
n149 Some critics have argued that its promise is essentially compromised. For
them, liberal universalism is unavoidably exclusive; its fundamental
categories, such as citizen, person, public, and rights, cannot be extended to
include all people without losing their definition. These critics argue, for
example, that the idea of a public sphere takes shape from its opposition to a
private sphere and that the distinction between public and private stands in
the way of the equality of women;
n150 or that the abstractions that define liberal universalism require that we
neglect the more concrete differences - such as class and natural endowment -
that shape actual lives.
Liberals, of course, deny that the project of liberal universalism is
hopelessly compromised and that abstraction is the enemy of equality and
inclusion. But denial is one thing; it is quite another to make a constructive
case that liberalism can deliver more fully on the universalistic promise of
its classical proponents and to abandon key elements of liberalism to ensure
Consider in this light
Rawls's project in Theory and Liberalism. Theory took seriously the egalitarian
critique of liberalism: the charge that the defense of liberty is a defense of
the privileges of people with the wealth or status needed to make effective use
of their liberty. In response,
Rawls moved the idea of the social contract to a higher order of abstraction,
presenting it as an agreement among free and equal persons, not among property
owners, or among men, or among individuals with definite conceptions of their
n152 Through this abstract reinterpretation of the social contract,
Rawls made a compelling case for the view that the best version of liberalism is
more egalitarian and inclusive than had traditionally been thought. In short,
Rawls gave us a more genuinely universalistic liberalism, committed to
n153 and less susceptible to charges of
[*1546] class exclusion.
Although Liberalism is not so concerned with the class question, it, too, aims
at a more genuinely universalistic liberalism. Generalizing and deepening the
ideal of toleration - by carrying it to a higher order of abstraction -
Rawls offers a democratic liberalism less susceptible to charges of moral
parochialism, sectarianism, and elitism and more suited to
"the historical and social circumstances of a democratic society" (p. 154). By
"applying the principles of toleration to philosophy itself,"
political liberalism leaves it
"to citizens themselves to settle the questions of religion, philosophy, and
morals in accordance with views they freely affirm" (p. 154).
Here we come to the heart of
Rawls's work and the basis of his permanent contribution to political philosophy: he
offers us a new version of democratic liberalism, marked by a commitment to
liberalism's universalistic promise and a willingness to pursue that commitment
by transforming those aspects of liberal thought that are condemned by its own
Consider the common ground of Theory and Liberalism from a different angle. In
his Gettysburg Address, Lincoln said that the United States was
"conceived in Liberty, and dedicated to the proposition that all men are created
equal," and he wondered whether a political society with such abstract devotions could
n154 Perhaps such a society would be unable to make good on the promise of liberty
and equality; perhaps dedication to an idea and a proposition would provide too
thin a basis for stable social unity.
Theory and Liberalism are the product of a life's engagement with these
concerns. Theory gives us an account of what the promise of liberty and
equality demands and a measure of how far we are from keeping that promise.
Liberalism offers hope and a warning: the hope that we can achieve social unity
in a democracy through shared commitment to abstract principles, and the
warning that any political bonds thicker than these
n155 would, by excluding some citizens, represent yet another failure to endure.
n1. Pat Buchanan, Tolerance and Truth at Easter, Ariz. Republic, Apr. 3, 1994, at
n2. Peter Laslett, Introduction to Philosophy, Politics and Society at vii, vii
(Peter Laslett ed. 1956).
Rawls, A Theory of Justice (1971). John
Rawls is James Bryant Conant University Professor Emeritus, Harvard University.
Political Liberalism is presented as a series of eight lectures, which descend in complex ways from
earlier lectures and papers. The first five lectures are revisions of
previously published articles, but the revisions are substantial even when - as
with lectures 4 and 5 - the titles have not been changed. Lecture 6 is a
significantly modified version of material presented in public lectures but
never before published. Lectures 7 and 8 were published previously and are
reproduced without modification. Pp. xii-xiv. Apart from lectures 7 and 8,
then, it is a mistake to identify the views advanced in
Political Liberalism with positions taken in earlier versions of the lectures.
n5. I say
"manifest" because I do not suppose that any society is morally or religiously
homogeneous, however much its institutions may suppress the expression of
differences by limiting expressive liberty, establishing compulsory forms of
worship, or narrowly circumscribing associative liberty.
n6. I will say more about the distinction between reasonable and unreasonable
later. See infra section IV.C. It will suffice here to note the familiar
logical distinction between is true and is reasonable: inconsistent views
cannot both be true, but they can both be reasonable.
n7. Versions of this question are posed at pp. xviii, xxv, 4, and 133.
Rawls does not suppose that the fact of reasonable pluralism taken on its own leads
us to a particular conception of justice. The problem of Liberalism is
generated instead by an apparent tension between the fact of reasonable
pluralism and the ideal of a well-ordered society featuring consensus on a
conception of justice that articulates such fundamental political values as
fairness, equality, and liberty.
Rawls, supra note 3, at 12-13.
n9. On the idea of a comprehensive moral conception, see p. 13. For the concern
that Theory endorses such a conception, see pp. xvi-xvii; see also infra
n10. See pp. 139, 155-57, 168-69, 208-09, 217-19.
n11. Some views may treat fairness itself as a fundamental value and not as an
implication of some deeper moral value. See the
"third view" at p. 145.
n12. See Immanuel Kant, Metaphysical Elements of Justice (John Ladd trans.,
Bobbs-Merrill Co. 1965) (1797); Joseph Raz, The Morality of Freedom (1986).
n13. See T.H. Green, Lectures on the Principles of Political Obligation (Ann Arbor
Paperbacks 1967) (1895); T.H. Green, Prolegomena to Ethics (A.C. Bradley ed.,
5th ed. 1906).
n14. See John S. Mill, Utilitarianism (1861), reprinted in Utilitarianism, Liberty,
Representative Government 1 (H.B. Acton ed., E.P. Dutton
& Co. 1972); John S. Mill, On Liberty (1859) hereinafter Mill, On Liberty,
reprinted in Utilitarianism, Liberty, Representative Government, supra, at 65.
n15. See Ronald Dworkin, Foundations of Liberal Equality, in 11 The Tanner Lectures
on Human Values 1 (Grethe B. Peterson ed., 1990) hereinafter Tanner Lectures.
n16. See Stuart Hampshire, Innocence and Experience 114, 117-18, 124-36 (1989).
Hampshire also explains the value of fair political process in terms of its
role in preventing such great evils as
"murder and the destruction of life, imprisonment, enslavement, starvation,
poverty, physical pain and torture, homelessness, friendlessness." Id. at 90.
n17. See John Locke, The Second Treatise of Government, in Two Treatises of
Government 5 (Peter Laslett ed., Cambridge Univ. Press rev. ed. 1960) (1690).
n18. This possibility plays an important role in Liberalism. See pp. 155-56.
n19. On overlapping consensus, see pp. 132-72; on the idea of a political
conception of justice, see pp. 11-15, 174-75.
Rawls rejects perfectionism in the name of
"democracy in judging each other's aims."
Rawls, supra note 3, at 442.
n21. Id. at viii; see also p. xv.
n22. On the central role of religious toleration in understanding the value of
toleration, see Susan Mendus, Toleration and the Limits of Liberalism 6-8
n23. See pp. 137, 227-30.
n24. On reasonable comprehensive doctrines, see pp. 58-66.
n25. But cf. Alisdair MacIntyre, After Virtue 227-37 (1981).
n26. G.W.F. Hegel, Elements of the Philosophy of Right (Allen Wood ed., H.B. Nisbet
trans., Cambridge Univ. Press 1991) (1821).
n27. For a statement of this aspect of the classical ideal of political society,
see Aristotle, Politics 1280b23-1281a3 (T.A. Sinclair trans., Penguin Books,
rev. ed. 1981).
n28. On the role of the modern state in achieving this stable expression, see
Hegel, supra note 26, 260.
n29. For discussion of the idea of reconciliation in Hegel's political philosophy,
see Michael O. Hardimon, Hegel's Social Philosophy: The Project of
n30. Hegel, supra note 26, 4.
"The good is realized freedom, the absolute and ultimate end of the world." Id. 129.
n32. G.W.F. Hegel, The Philosophy of History (J. Sibree trans., Dover Publications
n33. In an earlier version of some of the material published in Liberalism,
Rawls indicated that
"one of Hegel's aims was to overcome the many dualisms which he thought
disfigured Kant's transcendental idealism," that Dewey
"shared this emphasis throughout his work," and that
"there are a number of affinities between justice as fairness and Dewey's moral
theory which are explained by the common aim of overcoming the dualisms in
Kant's doctrine." John
Rawls, Kantian Constructivism in Moral Theory, 77 J. Phil. 515, 516 (1980). My point
is not to deny this common aim. I want only to emphasize that the presentation
of justice as fairness as a political conception implies that its resolution of
the apparent tension between social unity and moral pluralism cannot draw on a
general antidualistic metaphysical view.
n34. Later I will discuss some reasons for operating on shared grounds. See infra
notes 114-16 and accompanying text.
n35. History, Hegel says, is the
"true theodicy." Hegel, supra note 32, at 457.
n36. P. 172; see also p. 101. The idea of philosophy as a defense of reasonable
faith derives from Kant. See pp. 100-01, 172. On the background of Kant's idea
of reasonable faith in Rousseau, see Dieter Henrich, Aesthetic Judgment and the
Moral Image of the World: Studies in Kant 10-28 (1992).
n37. See infra Part IV. One basis of skepticism that I will not explore below
endorses the possibility of combining political consensus and moral pluralism,
but only if the political consensus is confined to questions of just procedure.
I explore and criticize this view in
Joshua Cohen, Pluralism and Proceduralism, 69 Chi.-Kent L. Rev. (forthcoming Summer 1994).
n38. A central claim in Theory is that we will be led to surprising, egalitarian
conclusions about the limits of legitimate socioeconomic inequality by
reasoning from the same fundamental ideas - about the equality of moral persons
and our basic interests - that support familiar and settled convictions about
the injustice of religious intolerance and racial discrimination. See
Rawls, supra note 3, at 19-20, 150-83. To make his case,
Rawls gathers the less controversial claims and convictions together in the original
position, thus requiring our reasoning about socioeconomic issues to conform to
principles and ideas to which convictions about fairness and basic liberties
already commit us. See
Joshua Cohen, Democratic Equality, 99 Ethics 727 (1989).
Rawls, supra note 3, at vii-viii.
n40. On natural liberty and liberal pluralism, see id. at 65-75. For an argument
against natural liberty and liberal pluralism, see Brian Barry, Theories of
Justice 217-34 (1989). I contrast liberal pluralism with
Rawls's view in Cohen, supra note 37.
n41. See pp. 42-43, 146, 201.
n42. I take the formulation of these principles, first stated in Theory, from
Liberalism. P. 291.
Rawls, supra note 3, at 204.
Rawls does not think that the worth of political liberty to a person is fixed by
that person's absolute command of resources. Because the political process has
"limited space," the value of political liberty also depends on relative position. See pp.
328-29. For this reason,
Rawls imposes a special requirement of the
"fair value" of political liberty: roughly, that people in different social positions have
equal chances to hold office and influence the political process. See pp.
Rawls, supra note 3, at 224-27. For a discussion of relative positions, see id. at
Rawls, supra note 3, at 205.
n46. Id. In Liberalism,
Rawls says, less strongly, that maximizing the minimum worth of liberty
"defines one of the central aims of political and social justice." P. 326.
Rawls, supra note 3, at 17-22.
n48. Id. at 136-42.
n49. Id. at 150-57, 175-83.
n50. See id. at 18, 587. For a complete list of passages in Theory that state the
idea of the original position as expressing reasonable requirements on
arguments for principles, see p. 25 n.28.
"If the original position is to yield agreements that are just, the parties must
be fairly situated and treated equally as moral persons."
Rawls, supra note 3, at 141; see also pp. 23-27.
n52. For criticisms of the principles themselves, see David Gauthier, Morals by
Agreement (1986); Robert Nozick, Anarchy, State, and Utopia (1974); G.A. Cohen,
Incentives, Equality, and Community, in 13 Tanner Lectures, supra note 15, at
261. On the argument from the original position, see John C. Harsanyi, Can the
Maximin Principle Serve as a Basis for Morality? A Critique of John
Rawls's Theory, 69 Am. Pol. Sci. Rev. 594 (1975).
n53. See Thomas Nagel,
Rawls on Justice, 82 Phil. Rev. 220 (1973).
Rawls replies at pp. 195-200.
n54. Brian Barry, The Liberal Theory of Justice 116-27 (1975). For Barry's
statement of the liberal philosophy of life, see id. at 126-27.
n55. Michael J. Sandel, Liberalism and the Limits of Justice (1982). Sandel
sketches the liberal philosophy of life - a conception of
"the deontological universe and the independent self that moves within it." Id. at 177. William Galston also criticizes
Rawls for failing to acknowledge his reliance on a conception of the good. See
William A. Galston, Liberal Purposes 118-62 (1991). Galston argues, however,
that such reliance is no embarrassment. On the contrary, liberalism must openly
avow its dependence on a view of the good, albeit a
"deliberately thin" view,
"a kind of minimal perfectionism." Id. at 177. Galston's view is puzzling. It is not controversial that some
account of the good is required for an account of justice. See pp. 173-211;
Rawls, supra note 3, at 395-99. Moreover, Galston's account of the good is itself
constrained by a concern
"to provide a shared basis for public policy." Galston, supra, at 178. This constraint suggests that Galston's account of the
good may not comprise part of a comprehensive perfectionist conception but may
instead be part of a political conception of the good in the sense defined by
Rawls at pp. 174-76. I say that Galston's account
"may be" political because it is not clear what he means by a
"shared basis of public policy" or how the concern to provide such a basis - as distinct from concerns within
an account of the good - constrains the role of ideas of the good in his
presentation of liberalism.
Rawls, supra note 3, at 137 (emphasis added).
n57. Id. at 141.
n58. Sandel identifies two key assumptions in Theory: that we are essentially
choosers - the priority of the self with respect to its ends - and that we are
not essentially members of a community -
"the priority of plurality over unity." Sandel, supra note 55, at 50-59. Notice that it is possible to deny the first
proposition - thus affirming that our identity is fixed by our ends - without
denying the second - that is, without affirming that we are essentially members
of a community. I might regard myself as standing in an essentially personal
relationship with God and as bound by obligations arising from that
relationship, or as a locus of artistic creativity, or as essentially a seeker
of truth. In each case, I might treat my relations with others as instrumental
for those deeper purposes, rejecting the ideal of community. To put the point
in historical terms, both Hegel and Nietzsche rejected the conception of the
self as essentially a chooser of ends. But, not to put too fine a point on it,
they had very different views about community. For criticisms of the conception
of the self as chooser, see Hegel, supra note 26, 15-20, 105-141; and Friedrich
Nietzsche, On the Genealogy of Morals 44-46 (Walter Kaugmann ed., Walter
& R.J. Hollingdale trans., Vintage Books 1969) (1887) (reprinted with Ecce Homo).
n59. Sandel, supra note 55, at 94-95.
n60. Id. at 179.
n61. The project of undermining liberalism by excavating and exploding its
psychological and metaphysical commitments traces back to Hegel, supra note 26.
The most ambitious modern effort along these lines is Roberto M. Unger,
Knowledge and Politics (1975).
n62. See the introduction to Part II of this review, supra.
n63. The following discussion draws on
Joshua Cohen, Moral Pluralism and Political Consensus, in The Idea of Democracy 270 (David
Copp et al. eds., 1993).
Rawls, supra note 3, at 263. On the role of consensus in the ideal of a well-ordered
society, see p. 35. See also
Rawls, supra note 3, at 5, 453-58.
Rawls, supra note 3, at 458.
n66. See Thomas Hobbes, Leviathan 120-29 (Richard Tuck ed., Cambridge Univ. Press
1991) (1651); Locke, supra note 17, at 374-77, 395-400.
n67. On the role of a shared conception in Rousseau, see
Joshua Cohen, Reflections on Rousseau: Autonomy and Democracy, 15 Phil.
& Pub. Aff. 275 (1986).
"third general fact" at p. 38.
n69. See the discussion of full autonomy at pp. 77-78.
Rawls distinguishes there between endorsing full autonomy as a political value and
affirming autonomy as a comprehensive moral value, to be realized in all
aspects of life and conduct. The concern to reconcile self-government with
interdependence is central to Rousseau's project, though Rousseau's own
presentation suggests that he thinks of self-government or moral liberty as a
comprehensive moral value, tied to an account of our true nature. On moral
liberty, see Jean-Jacques Rousseau, On the Social Contract (1762) hereinafter
Rousseau, Social Contract, reprinted in Basic Political Writings of
Jean-Jacques Rousseau 139, 144-46 (Donald A. Cress trans.
& ed., 1987); on our nature as free beings, see Jean-Jacques Rousseau, Discourse
on the Origin and the Foundations of Inequality Among Men, in The First and
Second Discourses 137, 189-90 (Victor Gourevitch ed.
& trans., Harper
& Row 1986).
n70. We also need to add that everyone believes with good reason that the decisions
express the shared norms and values.
n71. See the discussion of legitimacy at pp. 136-37, 216-19.
n72. See supra notes 66-67 and accompanying text.
n73. See Hobbes, supra note 66, at 120-21.
n74. But see Rousseau, Social Contract, supra note 69, at 197 ("Once the populace is legitimately assembled as a sovereign body ... the person
of the humblest citizen is as sacred and inviolable as that of the first
n75. See the
"first general fact" at p. 36.
n76. I do not mean to suggest that other societies are not pluralistic. See supra
n77. See supra section II.B. In his Tanner Lecture on
"liberal equality," Ronald Dworkin defends a version of liberalism on the grounds of its
continuity with a more comprehensive liberal outlook on life. See Dworkin,
supra note 15, at 20-22.
Rawls presents the first part of the case in
Rawls, supra note 3, at 462-96, and the second part in id. at 513-77.
n79. Id. at 567.
n80. Id. at 462-96. See also Hegel's theory of the formation of the will through
the various spheres of ethical life - family, civil society, and state. Hegel,
supra note 26, 142-329.
Rawls, supra note 3, at 499, 501.
n82. Id. at 572 (citation omitted).
n83. Id. at 478.
n84. Id. at 575.
n85. Id. at 574.
n86. Id. at 572.
n87. The condition of
"full publicity," defined at pp. 66-67, requires public availability of the conception of
justice and the full rationale for it.
Rawls, supra note 3, at 572.
Rawls ties this argument to the Kantian interpretation of justice as fairness. See
id. The argument is one of four he offers in support of congruence. It might be
interpreted as an argument addressed to those who endorse a comprehensive
Kantian view, rather than as one of four arguments that citizens generally will
find persuasive. But Theory clearly offers it as the latter.
n90. I have concentrated on the problem for congruence. The account of acquisition,
however, faces a parallel difficulty. An account of the acquisition of a desire
to act on principles must explain why that desire, which is not instrumental,
does not reflect a strange affection for rules. In Theory,
Rawls responds to this concern by explaining that moral principles can
"engage our affections" in part because acting on them expresses our
"nature as free and equal rational beings." Id. at 476. But this explanation leaves us with a gap in the account of
acquisition in the case of those citizens who do not see their nature in such
terms. In this connection, see pp. 82-86 on principle-dependent and
n91. See Locke, supra note 17, at 310-11.
n92. See John Locke, A Letter Concerning Toleration 18-20 (Patrick Romanell ed.,
William Popple trans., 1955) (1689).
n93. They may, of course, be attracted to those principles and to the original
position itself for other reasons. See infra notes 110-12 and accompanying text.
n94. This condition is necessary but not sufficient, because a view that is
formulated without reference to any comprehensive moral view may nevertheless
be attractive only to those who hold a particular view. See infra notes 109-12
and accompanying text.
n95. For discussion and criticism of these two versions of equality of welfare, see
Ronald Dworkin, What Is Equality? Part 1: Equality of Welfare, 10 Phil.
& Pub. Aff. 185, 204-09, 220-24 (1981).
n96. See pp. 11-15.
n97. A political conception is presented as freestanding in the way that logic or
number theory is. A presentation of logical laws - for example, the law of
excluded middle - proceeds without tying the laws to a theory of truth or
issues in the theory of meaning; a presentation of number theory proceeds
without reference to questions about the ontological status of numbers.
n98. Pp. 18-20;
Rawls, supra note 3, at 561.
n99. See supra notes 79-93 and accompanying text.
n100. For example,
Rawls refers to the constraints in the original position as
"conditions that are widely recognized as fitting to impose on the adoption of
Rawls, supra note 3, at 584. Similarly, the criticisms of natural liberty and liberal
equality refer to social circumstances and natural assets as features that are
"arbitrary from a moral point of view." Id. at 72, 74-75.
n101. I say
"sometimes" because some passages in Theory strongly suggest that apparently metaphysical
notions should be interpreted morally. Take, for example, the following remark:
"Our moral sentiments display an independence from theaccidental circumstances
of our world, the meaning of this independence being given by the description
of the original position and its Kantian interpretation." Id. at 475 (emphasis added). To say that the description of the original
position gives the meaning of independence is to say that independence is a
matter of the irrelevance for moral purposes of certain features of the person,
rather than a matter of the metaphysical contingency of those features.
n102. See supra notes 78-93 and accompanying text.
Rawls, supra note 3, at 251-57, 572.
n104. See pp. 20, 22, 26, 34-35.
n105. I assume this hostility to be widely shared, even by people who do not think
that content or viewpoint regulation is always impermissible. Justice Marshall
provided a classic statement of the general concern about content regulation in
Police Department v. Mosley, 408 U.S. 92, 95 (1972) ("Above all else, the First Amendment means that government has no power to
restrict expression because of its message, its ideas, its subject matter, or
its content."). On viewpoint discrimination, see
Texas v. Johnson, 491 U.S. 397, 414 (1989). For discussion of content and viewpoint regulation, see John Hart Ely, Flag
Desecration: A Case Study in the Roles of Categorization and Balancing in First
88 Harv. L. Rev. 1482, 1482-508 (1975); T.M. Scanlon, Jr., Content Regulation Reconsidered, in Democracy and the Mass
Media 331 (Judith Lichtenberg ed., 1990); Geoffrey R. Stone, Content-Neutral
54 U. Chi. L. Rev. 46 (1987); and Geoffrey R. Stone, Restrictions of Speech Because of Its Content: The
Peculiar Case of Subject-Matter Restrictions,
46 U. Chi. L. Rev. 81 (1978).
Rawls, supra note 3, at 560.
n107. Sandel, supra note 55, at 95.
n108. The political conception does not take a position in the way that statements
of logical laws do not, on their face, take a position about the nature of
n109. See supra notes 94-95 and accompanying text.
n110. See Michael Dummett, The Logical Basis of Metaphysics 184-99 (1991).
n111. See, e.g., Mill, On Liberty, supra note 14, at 116-17. Similar considerations
would support a case for the interest within a view emphasizing
n112. Locke, supra note 92, at 18.
n113. It might be said that holding a moral view is a matter of having pro-attitudes
rather than beliefs that are apt to be true or false. For a sketch of the
difficulties in sustaining this position, see Paul Horwich, Gibbard's Theory of
Norms, 22 Phil.
& Pub. Aff. 67 (1993) (book review). But see Michael Smith, Why Expressivists
About Value Should Love Minimalism About Truth, 54 Analysis 1 (1994), and the
reply by Horwich in Paul Horwich, The Essence of Expressivism, 54 Analysis 19
Rawls mentions the first two considerations at pp. 127-28 (referring to Cohen, supra
n115. See supra note 69.
n116. See supra notes 67-74 and accompanying text.
n117. See supra note 37 and accompanying text.
n118. The first objection I will consider overlaps with the fourth objection
Rawls at pp. 158-68, though my reply differs from
Rawls's in important details. The other three objections I will discuss differ from
Rawls considers at pp. 145-58.
n119. This distinction is implicit, I believe, in
Rawls's remarks on the
"wide role" of a political conception
"as educator." When a political conception is fully public, citizens
"are presented with a way of regarding themselves as free and equal that
otherwise they would most likely never be able to entertain." P. 71.
n120. I do not mean to deny that convergence of independent traditions is a
possibility; my point is that an account of political consensus should not
depend on it. Bernard Williams has argued that if there were moral consensus it
could not be explained by the (perspective-independent) truth of the moral
beliefs on which different traditions converged. See Bernard Williams, Ethics
and the Limits of Philosophy 132-55 (1985).
Rawls's account of the possibility of consensus on a conception of justice does not
require that the truth of the conception explains the agreement on it.
n121. See pp. 158-68;
Rawls, supra note 3, at 462-79.
n122. See Hegel, supra note 26, 142-329;
Joshua Cohen, Autonomy and Authority: Rousseau on Democracy 113-19 (Mar. 1993) (unpublished
manuscript, on file with author). On institutional forms and the acquisition of
self-conceptions, see John S. Mill, Representative Government (1861), reprinted
in Utilitarianism, Liberty, Representative Government, supra note 14, at 171,
185-202; Karl Marx, The German Ideology: Part I, in The Marx-Engels Reader 146
(Robert C. Tucker ed.
& S. Ryazanskaya trans., 2d ed. 1978).
n123. For further discussion, see Cohen, supra note 37.
n124. Consider in this connection the virtually unanimous popular endorsement of
political equality and equality of opportunity indicated in Herbert McClosky
& John Zaller, The American Ethos: Public Attitudes Toward Capitalism and
& tbl. 3-5, 83 tbl. 3-9 (1984).
n125. See pp. 159-61.
n126. Recall the contrast I drew earlier between Hegel and
Rawls, supra section I.B.
n127. The claim that there is such an optimal way provides the basis of
Rawls's argument for justice as fairness. See p. 9.
n128. I believe that Stuart Hampshire attributes such a view to
Rawls when he suggests that
Rawls endorses a
"myth of reason" whose roots lie in the Platonic conception of the soul. Hampshire neglects the
institutional explanation of consensus. See Stuart Hampshire, Liberalism: The
New Twist, N.Y. Rev. Books, Aug. 12, 1993, at 43 (reviewing Liberalism).
n129. P. 109; see also pp. xx, 107-10.
n130. See also
Joshua Cohen, Deliberation and Democratic Legitimacy, in The Good Polity: Normative Analysis
of the State 17 (Alan Hamlin
& Philip Pettit eds., 1989). I emphasize there that a conception of reasons
suited to the ideal of deliberative democracy reflects an ideal of free
deliberation among equals. Id. at 22-23.
n131. To be sure, important historical strands of these views have rejected the
political conception of equality. But we have already rejected the idea that
the political conception must emerge from the separate elaboration of competing
n132. On institutionalizing deliberation, see Cohen, supra note 130, at 26-32.
n133. P. 36; see Cohen, supra note 63, at 281-85.
"That there are views that reject one or more of the democratic freedoms is
itself a permanent fact of life, or seems so. This gives us the practical task
of containing them - like war and disease - so that they do not overturn
political justice." P. 64 n.19. This remark does not imply that we may do whatever we judge
appropriate for containing objectionable views, any more than we can fight a
disease by simply quarantining people who are sick. On tolerating the
Rawls, supra note 3, at 216-21; on the right of subversive advocacy, see pp. 340-56.
n135. Consider, to take just one example, proposals to regulate pornography in order
to ensure sexual equality. See, e.g., Catharine A. MacKinnon, Only Words (1993)
(reviewed in this issue - Ed.). These proposals appeal to political values.
They do not reject the value of liberty generally, or freedom of expression in
particular. Instead, they offer a particular way to combine freedom of
expression and equality. Although I do not agree with these proposals, it is
simply wrong to argue that they reject the value of freedom of expression or
that the arguments for them rely on a particular comprehensive view. See
Joshua Cohen, Freedom of Expression, 22 Phil.
& Pub. Aff. 207 (1993);
Joshua Cohen, Pornography: Left (Apr. 1994) (unpublished manuscript, on file with author).
n136. P. 243 n.32. This right is much weaker than the right upheld in
Roe v. Wade, 410 U.S. 113 (1973), which is not confined to the first trimester.
"Liberalism forgets the possibility that when politics goes well, we can know a
good in common that we cannot know alone." Sandel, supra note 54, at 183. See also the illuminating remarks by Seyla
Benhabib on the limits of liberal and discursive models of the public space in
Seyla Benhabib, Models of Public Space: Hannah Arendt, the Liberal Tradition
and Jurgen Habermas, in Situating the Self 89 (1992). Benhabib explores
feminist criticisms of
"overly rigid boundaries ... between matters of justice and those of the good
life, public interests versus private needs, privately held values and publicly
shared norms." Id. at 111. In the end, however, I am not sure how far her own view differs
Rawls's. Here I will note just one reason. Benhabib uses the term political discourse
in a very expansive way. See id. at 104. So her concern to open up public,
political discourse to more comprehensive views - both matters of justice and
those of the good life - reflects her idea that such discourse
"can be realized in the social and cultural spheres as well." Id. Political discourse covers debates in
"cultural journals" about sexual and racial stereotyping, for example. Id. As I explain in the
text, see infra text accompanying note 140,
Rawls uses the terms political and public more narrowly. So he agrees that the
limits of public reason do not apply to political discourse, understood in such
a capacious way. See pp. 214-15.
n138. See John
Rawls, The Idea of Public Reason: Further Considerations (Jan. 3, 1994) (unpublished
manuscript, on file with author).
n139. In the legal academy, Duncan Kennedy is the great exponent of this first form
of critique. See, e.g., Duncan Kennedy, Sexy Dressing Etc. (1993).
n140. The issue is not whether critical discourse ought to be legally permissible.
The legal right must be established because of the requirement of equal basic
liberties. See p. 337.
n141. See supra notes 120-26 and accompanying text.
n142. There are some exceptions. See, e.g., Bruce A. Ackerman, Social Justice in the
Liberal State (1980). Ackerman emphasizes the independence of political
argument from moral argument and also the many routes to liberal political
arguments. See id. at 355-59. But his discussion of
"four of the main highways to the liberal state" suggests that his liberalism is a partially comprehensive doctrine. See id. at
359-69. I am indebted to John
Rawls for a discussion of this issue.
n143. See Locke, supra note 92, at 17-20.
n144. Mill, On Liberty, supra note 14, at 115.
n145. Id. at 120.
n146. Id. at 72-73, 114, 132, 149-50.
n147. Id. at 120. For interesting suggestions about the connections of this feature
of Mill's view with his affection for colonialism, see Bhikhu Parekh, Superior
People: The Narrowness of Liberalism from Mill to
Rawls, Times Literary Supplement (London), Feb. 25, 1994, at 11.
n148. Mill, On Liberty, supra note 14, at 122. For example, the undeveloped
"might possibly learn something" from the developed. Id.
n149. For representative examples of such criticisms in the case of Lockean
liberalism, see C.B. Macpherson, The Political Theory of Possessive
Individualism (1962); Carole Pateman, Feminist Critiques of the Public/Private
Dichotomy, in The Disorder of Women 118 (1989);
Joshua Cohen, Structure, Choice, and Legitimacy: Locke's Theory of the State, 15 Phil.
& Pub. Aff. 301 (1986); and Uday S. Mehta, Liberal Strategies of Exclusion, 18
& Socy. 427 (1990).
n150. See Benhabib, supra note 137, at 107-13; Catharine A. MacKinnon, Toward a
Feminist Theory of the State 157-70 (1989); Pateman, supra note 149, at 119-24;
Nancy Fraser, Rethinking the Public Sphere: A Contribution to the Critique of
Actually Existing Democracy, in Habermas and the Public Sphere 109 (Craig
Calhoun ed., 1992).
n151. See Karl Marx, Critique of the Gotha Program, in The Marx-Engels Reader, supra
note 122, at 525, 530-31; Karl Marx, On the Jewish Question, in The Marx-Engels
Reader, supra note 122, at 26. For contemporary discussion of this issue as it
arises in the context of distributive ethics, see Amartya Sen, Inequality
n152. On the Lockean contract as an agreement among property owners, see Cohen,
supra note 149.
n153. Democratic equality is
Rawls's term for the conception of fair distribution that includes the difference
Rawls, supra note 3, at 75-83; Cohen, supra note 38, at 727-31.
n154. Abraham Lincoln, Gettysburg Address (Nov. 19, 1863), in Abraham Lincoln,
Speeches and Writings, 1859-1865, at 536, 536 (Don E. Fehrenbacher ed., 1989).
n155. For an example of thicker bonds, see the quotation from Pat Buchanan that
begins this article. See supra text accompany note 1.
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Philosophy 111A Page