Copyright (c) 1995 University of Richmond Law Review Association
University of Richmond Law Review
29 U. Rich. L. Rev. 1263
LENGTH: 31091 words
ARTICLE: LIBERALISM AND THE POSSIBILITY OF MULTICULTURAL CONSTITUTIONALISM: THE
DISTINCTION BETWEEN DELIBERATIVE AND DEDICATED CULTURES *
* The distinction between deliberative and dedicated cultures and its relevance
to liberal multicultural constitutionalism derives from my contribution to the
Fourth Biennial Georgetown Discussion Group on Constitutional Law held in
December 1993 at the Georgetown Law Center. I am indebted to Mark Tushnet, the
Group's organizer, as well as the other participants for providing a congenial
and intellectually stimulating environment for discussing comparative
Bob Hayman deserves my deepest gratitude for his astute, detailed criticism of
earlier drafts of this article. I also wish to thank Mark Tushnet, Larry
Alexander, Ed Sankowski, Rod Smith, and Erin Daly for their comments on an
earlier draft or for their encouragement, or for both. This manuscript is part
of a larger project entitled The Jurisprudence of Multicultural
Robert Justin Lipkin **
** Professor of Law, Widener University School of Law. B.A., Brooklyn College,
CUNY, 1965; M.A., 1971, Ph.D., 1974, (Philosophy) Princeton University; J.D.,
... A dedicated culture appreciating the fact that even its most cherished
institutions do in fact change may construct mechanisms to prevent or control
significant change. ... In a dedicated culture, the role of criticism is
diminished greatly. ... Consent can be part of a dedicated culture or regime.
... Like cultures generally, a dedicated culture must secure consent, but it
can do so without adopting the deliberative attitude. ... But an open culture
can be a dedicated culture, and a closed culture can be a deliberative one. ...
A deliberative culture actively seeks appropriate evidentiary information
relevant to the resolution of conflicts and to promoting cultural change, while
a dedicated culture does not seek such evidentiary information, and when it is
exposed to such information does not regard it as evidence for or against its
dedicated values. ... Is it then possible to have an open dedicated culture or
a closed deliberative culture? A culture can be dedicated though still open in
that it does not prevent evidentiary information from entering its borders. ...
An open, dedicated culture is committed to its values until an implicit
cultural process overturns these values. ... This description is not biased in
favor of a deliberative culture, since challenging one's culture is not always
good, and being content with one's culture is not always bad. ...
Liberalism and multicultural constitutionalism are on a collision course
destined to become the next great battlefield in the unfolding odyssey of
American constitutional law.
n1 The impending battle will define the scope and limits of liberal
[*1265] constitutionalism and its role as the model for democracy around the world.
n2 While turbulence between liberalism and multicultural constitutionalism occurs
across a panoply of controversies, the eye of the storm focuses on one central
question: Can liberalism tolerate non-liberal cultures?
n3 This article explores the hypothesis that liberalism's deep structure
precludes it from explaining and justifying the toleration of non-liberal
cultures. If so, this hypothesis has serious implications concerning the
viability of liberal multicultural constitutionalism.
n4 Either liberalism must be radically reconceived or abandoned, or we must
revise our conviction that multicultural constitutionalism is normatively
Multicultural constitutionalism appears desirable for two reasons. First, the
demographics of the United States are undergoing a sea change. Early in the
next millennium, the United States will cease being a predominantly caucasian
nation with a European heritage. This presents the extraordinary challenge of
integrating, fairly and justly, newly arriving cultures with traditional ones.
n6 Multicultural constitutionalism promises a framework for integrating the new
with the old. In particular, it promises a resolution of the cultural warfare
over education, the arts, religion, and law in American society.
n7 Second, multicultural constitutionalism presents special opportunities for
liberalism as a model for constructing democratic institutions in societies
recently emerging from the iron rule of authoritarian and totalitarian regimes
in Central and Eastern Europe and elsewhere.
n8 Because these multicultural societies often see liberal democracy as a beacon
of hope for creating a just society, the question of liberal multicultural
constitutionalism assumes great urgency. As we continue to observe in
Bosnia-Herzegovina, cultural warfare can be cata-
[*1267] strophic and deadly. Consequently, several critical questions arise: Can
liberal constitutionalism resolve these costly conflicts by recognizing the
cultural identity of disparate cultural and ethnic groups?
n9 Is it possible to integrate liberalism and multiculturalism into a coherent
conception of constitutionalism? Additionally, should we be sanguine about the
future of liberal revolutions, or are the conceptual and moral resources of
liberalism irremediably impoverished?
n10 If the latter, do alternatives exist that might better resolve the imminent
constitutional and cultural battles?
Our search for a liberal conception of tolerance also implicates a host of
doctrinal questions about the appropriate evolution of American law: Should a
defendant in a criminal prosecution be permitted to invoke the
"culture defense" to excuse or justify conduct that is criminal in the United States?
n11 Is it permissible or desirable for languages other than English to be used in
public education or in public forums such as courts and legislatures?
n12 Is it possible for minority cultures to receive
[*1268] special recognition or, in the limiting case, should their members be
permitted to secede if their cultural aspirations cannot be met by the dominant
culture in the United States?
n13 Should prayer and expressions of minority cultural values be permitted in
public schools? Can liberal multicultural constitutionalism, even in special
circumstances, tolerate public school districts run exclusively according to
the dictates of a particular religion?
n14 Do general proscriptions against animal sacrifice conflict with religious
n15 How should we have resolved the classic confrontation between church and state
that ended the Mormon practice of polygamy?
n16 Finally, how should Amer-
[*1269] ican constitutionalism respond to the sanctified role land plays in Native
American culture? Can liberal toleration constitutionally honor the Native
American conviction that land has a spiritual meaning beyond that attributed to
it by mainstream American culture?
This article is part of a larger project which attempts to answer these and
other questions about liberal multicultural constitutionalism. For present
purposes I explore one reason for being skeptical about the possibility of
liberal multicultural constitutionalism. The article introduces a distinction
between deliberative and dedicated cultures in light of which we can reevaluate
the possibility of liberal multicultural constitutionalism.
n18 Although this distinction tracks such familiar distinctions as reason and
tradition, freedom and custom, reason and religion, needs and desires,
democracy and authority, open and closed societies, and so forth, it is in fact
identical to none of them.
n19 It must, instead, be recognized as an independent
[*1270] conceptual device for characterizing problems of liberalism and
multiculturalism. The article deploys this distinction to show that the liberal
conception of tolerance is more doctrinaire than usually thought, and therefore
cannot provide a basis for multicultural constitutionalism. Instead, the
possibility of multicultural constitutionalism depends upon an alternative
conception of tolerance.
I do not deny that given present political conditions, liberal political
theory can usually explain and justify why one liberal culture tolerates
n21 However, liberal political theory can explain and justify toleration
n22 of non-liberal cultures only in the following circumstances: when non-liberal
cultures are sufficiently like liberal cultures so as to avoid deadly conflict
or when the liberal culture derives instrumental benefits in tolerating the
n23 When an intractable conflict exists between a liberal culture and a
non-liberal culture, liberal political theory cannot explain and justify
tolerance. Indeed, the history of liberalism is replete with examples of
liberal intolerance of non-liberal cultures and regimes.
n24 Understanding lib-
[*1271] eral theory's incapacity to tolerate non-liberal cultures reveals a salient
feature of liberalism's deep structure: liberalism depends upon the
deliberative attitude, a specific strategy for living antithetical to
nondeliberative, or dedicated forms of life.
n25 This deep structure implies criteria for evaluating the legitimacy of cultural
and political regimes. The deliberative attitude, designed to solve both
individual and collective practical problems, seeks to evaluate rationally all
cultural constructs in order to determine which are legitimate and which need
to be revised or abandoned.
The deliberative attitude is a way of viewing the world,
n26 and includes a general approach to problem solving. As such the deliberative
attitude cannot appreciate or make intelligible to itself, cultures and regimes
whose values are inaccessible to deliberation. Liberalism grounds such virtues
as liberty, equality, privacy, and the rule of law in the deliberative
n27 Unless other grounds are possible, these virtues must then be antithetical,
conceptually and morally, to nondeliberative attitudes. Thus, liberalism faces
this dilemma: either it can explain and justify liberal toleration of
non-liberal cultures or it cannot. If it can explain and justify liberal
toleration of non-liberal cultures, it does so at the expense of the
deliberative attitude, its primary structural feature. If it cannot explain and
justify liberal tolerance of non-liberal cultures, it fails in one of its
central purposes, allowing diversity and pluralism.
[*1272] liberalism either betrays its structure or abandons tolerance.
n29 Liberalism can avoid one horn of this dilemma only by being impaled on the
Part One of this article explains the distinction between deliberative and
dedicated cultures. Deliberative cultures advocate resolving the problems of
cultural conflict and change by appealing to the values of rationality and
autonomy, while dedicated cultures resolve these problems by appealing to the
values of constancy and closure.
n31 In Part Two, I suggest that although certain familiar distinctions are
relevant to the distinction between deliberative and dedicated cultures, none
are identical to it and none offer a systematic understanding of the
differences between liberal and non-liberal societies. In fact, the distinction
between deliberative and dedicated constructs represents a unique distinction
between two different perspectives, or ways of being in the world. In Part
Three, the article examines the question of whether liberalism includes a
conception of the good, and how the distinction between deliberative and
dedicated cultures is relevant to the conception of the good. Finally,
[*1273] Part Three explores the role that the distinction between deliberative and
dedicated cultures plays in demonstrating liberalism's inability to explain and
justify toleration of non-liberal cultures.
I. Deliberative and Dedicated Constructs
A. Universal Rationality and Particularist Rationality
Deliberative inquiry, or
"deliberativism," is committed to rationality as the chief mechanism for evaluation and
n33 Deliberative constructs include, inter alia, concepts, values, attitudes,
judgments, beliefs and desires, and generally anything that can be evaluated
rationally. Deliberativism is a problem-solving strategy, designed to evaluate
the legitimacy or reliability of any system of beliefs and values, including
Two forms of rationality deserve special mention: universal rationality and
particularist rationality. Universal rationality contends that general
principles exist that apply to everyone and that in principle are acceptable to
n35 These principles are neutral or impartial with respect to the good life, and
therefore can function as arbiters of conflicts between different conceptions
of the good. Universal rationality is a modernist conception designed to
provide a foundation or irrepressible explanation and justification of our
system of beliefs and values, including our conception of the good.
n36 Typically, such a
[*1274] foundation reflects, or is inescapably connected, to reality or to human
reason in the sense that a refusal to be bound by its dictates is a sine qua
non of irrationality. Universal rationality is necessary for the
intelligibility and efficacy of argument and proof, and provides the tools
necessary to resolve cultural conflicts.
Universal rationality purports to be politically and morally neutral. Winning
an argument requires a formal exercise in reason, but does not require, and
indeed precludes, an appeal to substantive moral or political values.
Similarly, universal rationality is the process through which we resolve our
cultural wars. In these wars, universal rationality determines which culture or
cultural provision is correct and therefore which should be defended. Universal
rationality thus is a means for discovering cultural legitimacy.
Critics point out that any universal conception of reason will be too thin for
arbitrating conflicts between different conceptions of the good or between
"we must inevitably refer to values on which there may perhaps be a consensus
within a particular community, but about which there is no prospect of
achieving universal agreement by appeal to considerations of rationality alone."
n39 According to this view, universal rationality is itself based on local values.
[*1275] Consequently, the notion of universal reason is incoherent because it depends
on local attitudes and therefore cannot be used to evaluate these attitudes.
By contrast, particularist rationality is antifoundationalist and denies that
nontrivial universal principles exist for adjudicating our cultural wars.
n41 Particularists may concede that at some level of generality, universal moral
and political judgments are true. However, they regard this as a conceptual or
linguistic point, not an ontological one. If we define murder as unjustified
and unexcused homicide, then murder is always wrong in every cultural context.
The problem here is that without universal normative rules for determining when
a homicide is unjustified or unexcused, this result is entirely trivial.
Abortion, euthanasia, and the death penalty result in taking human life, but
they count as murders only when they are unjustified and unexcused according to
the appropriate normative rules. Thus, murder can be described as universally
wrong only in the trivial sense that when a homicide is unjustified and
unexcused it is murder. This is a trivial result because we still do not know
how this bears on concrete controversies over the moral propriety of such
homicides. Our cultural debates concerning these homicides founders on our
inability to construct normative rules objectively or universally tying the
homicide to justification and excuse. The fact that murder is universally wrong
in this linguistic sense is a trivial victory for universalists. If no more
robust conception of universality is possible, universal rationality adds
little to particularist argument and proof.
Deliberation embraces a process of critically evaluating social conflicts in
terms that might defy universality. Instead, we offer arguments and conclusions
without a commitment or proof that they are universal in a nontrivial sense. We
seek the best objections to our judgments, and when a judgment overcomes these
objections, we retain it until we consider the next batch of objections and
then fallibilist verification begins again. Particularist rationality seeks
consensus in terms of pragmatic
[*1276] solutions that in no way resolve the conflict finally or without possibility
A third view, call it
"deliberative rationality," combines elements of universal rationality and particularist rationality.
Since judgments usually take the form
"X is right in C" or
"A is right in doing X in C," where
"A" is an agent,
"X" is an action and
"C" are the circumstances, such judgments incorporate and preclude elements of
universality. They incorporate elements of universality because a judgment of
this form applies to any person in relevantly similar circumstances. In short,
the universality is built into the logical form of the judgment. These
judgments preclude universality because no judgment of the form
"X is always wrong" is intelligible without identifying the relevant circumstances. Try any of the
"It is wrong to kill" or
"It is wrong to lie." Nobody believes that it is wrong to kill independently of context because
nobody reasonably believes it is wrong for human beings to build houses which
kill plant and animal life. Humankind must kill (some things) in order to live.
Similarly, no one believes that it is wrong to lie in every conceivable case.
Of course these observations do not resolve the question of cultural or moral
relativism. A cultural absolutist can accept this proposal concerning the
logical form of moral judgments by insisting that cultural factors never or
rarely count as relevant factors or circumstances. Thus, the moral absolutist
will consider Roberto culpable in killing Duncan in response to an insult,
despite the fact that in some cultures this reason justifies killing. The
absolutist insists that such a reason either justifies or excuses killing in
all cases or never justifies or excuses it; cultural differences are
irrelevant. On the other hand, a cultural relativist believes that such
cultural differences must be included in the
"in C" designator, and will inculpate killings in certain cultures while exculpating
them in others.
Judgments evaluating conduct always require morally relevant descriptions of
the actor, the act and the circumstances. No form of universality across
descriptions is possible. Hence, deliberative rationality is committed to
giving reasons for and against various judgments counseling the inquirer to
embrace the judgment having the best reasons--where best is understood in terms
of comprehensiveness, depth, and coherence, as well as the judgment's role in
the process of inquiry and persuasion. Deliberative rationality is a pragmatic
conception of inquiry endorsing the universal rationalist's conception of the
importance of reasoning and verification and the particularlist's conception of
the importance of context and circumstances. The distinction between
deliberative and dedicated cultures embraces this conception of deliberative
rationality. Let us now turn to a statement of this distinction.
B. Deliberative and Dedicated Cultures
Deliberative judgments are defended by the best reasons relevant to the
n43 and scope
n44 of the judgment. In antifoundationalist, deliberative systems, all judgments
are revisable, though not at the same time.
n45 Deliberative judgments must be rejected in terms of superior alternative
[*1278] judgments, and generally, one never has reason to reject an entire culture
unless one has an alternative cultural system.
n46 The ideal of deliberation integrates truth, justification, and the reflective
criticism of a community of individuals committed to deliberation in their
political, social, and personal lives.
The role of community in deliberative constructs is important and needs
clarification. Community is both a cause and effect of human choice. Community
is a necessary causal condition of human choice because human choice requires
deliberation--critically scrutinizing and correcting one's judgments--and
deliberation requires a social context of shared linguistic and ratiocinative
practices. The role of reason and justification can only be understood in terms
of linguistic practices or forms of life that have produced the practices of
criticism and correction as well as the requisite standards to implement these
n48 In this way reason and justification derive from community, but once derived,
reason and justification enable individuals to make further choices. These
choices are the effect of commu-
[*1279] nity in two ways. First, it is only when a community of practical reasoners is
already formed that individuals can make their lone autonomous choices. Since
reasoning is itself social, practical reasoning can only occur when the
individual has learned the appropriate methods of practical reasoning from
others, and this requires a community in which the methods of practical
reasoning are practiced. Second, living a conscientious life requires making
choices in deliberative contexts, where you consider how others would evaluate
n49 Finally, community is the effect of human choice and deliberation, since the
further development of a community from a bare community to a full community
(including the state) requires human decision and action.
I wish to contrast deliberative constructs or forms of inquiry with dedicated
forms of inquiry, though I do not want to suggest that any mature culture must
be constituted by one to the exclusion of the other.
n51 Nevertheless, we can distinguish between deliberative forms of inquiry and
dedicated forms of inquiry and therefore distinguish between cultures that are
predominantly deliberative or predominantly dedicated.
[*1280] such cultures we can distinguish between primary and secondary cultural
strategies. Sometimes primary and secondary cultural strategies are lexically
ordered and resist incoherence. In other cases, the primary and secondary
cultural strategies are in tension and yield incoherent cultural outlooks.
Dedicated forms of inquiry begin with natural and cultural givens. Human
beings constitute a certain kind of biological form that determines certain
features of human conduct. For example, food, sex, and work are three aspects
of human experience that are biologically given.
n53 This does not mean that society and culture are irrelevant to the particular
manifestations of these biological forms, only that the choice of whether we
should be the kind of organism that typically needs to eat, to procreate, and
to gather materials for food and shelter are questions nature has resolved for
Our inclinations for food, sex, and work are dedicated needs, though the
precise form our gratification assumes in any case may not be dedicated. To
talk of dedicated needs only means that we need certain things if we are to
survive at all. The further we travel from biological givens, the less a need
is purely dedicated. We also have needs that are constitutive of human
flourishing, though the precise nature of these needs is indeterminate and
contestable. Many of these needs are not dedicated, but arise only after
reflection and deliberation; for example, respect and dignity. Thus, the
concept of dedicated needs in no
[*1281] way reflects
Rawls's conception of primary goods.
n54 Most, if not all, primary goods are not dedicated needs.
The vast portion of dedicated needs arise in social and cultural contexts.
Since even dedicated biological needs require social and cultural expression,
we would not be far wrong in regarding all dedicated needs as cultural needs.
Dedicated cultural inquiry involves cultural givens that are fixed and not
designed for change, though they can be re-designed to change in
n55 I say that such cultural givens are not designed to change, not that they do
not change. A dedicated culture appreciating the fact that even its most
cherished institutions do in fact change may construct mechanisms to prevent or
control significant change.
n56 Some dedicated cultures might be more amenable to change, seeking to direct
change to better fulfill their dedicated values.
n57 At some point, however, when a
[*1282] dedicated culture too readily embraces change, it ceases to be dedicated and
embraces an inchoate form of deliberativism.
The idea of dedicated concepts or norms is antithetical to deliberative,
rational criticism which involves continued vigilance in perfecting and
refining its normative commitments as well as its concept of a norm. To
describe a culture as dedicated, however, does not deny that it has meaning
that succeeding generations may interpret and reinterpret. What it does mean is
that these interpretations must remain within the confines of the culture,
whereas deliberative cultures are self-consciously concerned with justifying
their cultures in the broadest possible terms. Hasidic Jews and the Amish are
examples of predominantly dedicated cultures within American society.
n58 These cultures have a certain character and style: the Amish, for instance,
eschew a reliance on sophisticated technology, such as electricity, in the
attempt to remain independent and self-sufficient.
n59 Both cultures have dedicated habits of dress serving as badges of honor for
Dedicated cultures usually include fixed or committed processes of change,
usually determined by the contents of a privileged text or the historic
pronouncements of a sanctified person,
[*1283] but the concept of a dedicated culture is not necessarily committed to these
processes. Conceivably, a dedicated culture might even embrace certain forms of
democratic change, provided that democracy serves dedicated ends and is not
designed to aid and encourage individual liberty. For example, a dedicated
culture might use democracy to make incremental changes in the life of the
culture when confronted with crisis, or it might place dedicated constraints on
democratic institutions. The legislature, for instance, might be confined only
to preserving the actual dedicated values and norms of the given culture. The
distinction between deliberative and dedicated cultures, in short, cannot be
drawn in terms of democratic cultures and nondemocratic ones.
Dedicated cultures usually seek to preserve traditional mechanisms for solving
problems, and are concerned with maintaining the precise character of group
identity, though both these elements may not be necessary features of a
dedicated culture. One can imagine a dedicated culture holding that human
beings have a faculty of moral or practical intuition that answers all such
problems in a non-deliberative fashion. A dedicated culture of this kind might
not rely on tradition and group identity any more than deliberative cultures do
when these conflict with what is learned through intuition. Even in these
circumstances, however, the dedicated culture is likely to embrace the faculty
of intuition as a defining characteristic of the culture. In this way group
identity--people who intuitively think like us--might reinstate the importance
of the group's character as a defining characteristic of the culture.
Although the distinction between deliberative and dedicated forms of inquiry
is fairly straightforward, it can arise in unusual ways. For example, one might
understand the constitutional theory of originalism as a dedicated form of
inquiry because it counsels us to accept the Framers' interpretation of
constitutional provisions as if these individuals were the sanctified leaders
of a dedicated culture. However, while some originalists recommend adopting the
Framers' interpretations of the Constitution as privileged because on an
originalist theory of meaning the only way to understand the text is to
determine the author's meaning, others argue for originalism because it serves
democratic ends. Neither one of these arguments need involve
[*1284] dedicated concepts, though to be free of any dedicated elements, originalism
must explain why meaning should be understood as authorial meaning, and why
their conception of democracy is the best available one.
A deliberative culture, therefore, can have privileged texts and sanctified
historical leaders. If it is a truly deliberative culture, it will have found
reasons for adopting originalism as a theory of constitutional meaning. This
means that in deliberative cultures a particular constitutional methodology
must survive the objections of all comers. The deliberative attitude in
constitutional matters, as well as elsewhere, means your opinion is always open
II. Defending The Distinction Between Deliberative and Dedicated cultures
A. The Distinction and Other Similar Dichotomies
In this section I evaluate some important objections to the distinction
between deliberative and dedicated cultures. The central purpose is to
demonstrate that the distinction between deliberative and dedicated is a unique
distinction that is not reducible to any more familiar distinctions.
1. Reason and Tradition
First, it might be objected that reasoning occurs in both deliberative and
dedicated contexts, and therefore does not distinguish two different types of
cultures or methods of cultural inquiry.
n63 This objection is correct as far as it goes. But the
[*1285] distinction between deliberative and dedicated forms of inquiry and cultures
is not a distinction between reasoning and tradition; instead, it is a
distinction between different kinds of reasoning. For instance, no form of
cultural inquiry and change can survive without deductive and inductive
reasoning. Consequently, in order to understand the distinction between
deliberative and dedicated cultures, we must distinguish between the kinds of
reasoning that distinguish them. In short, the distinction is a distinction
between two different kinds of cultural attitudes: the deliberative attitude
and the dedicated attitude.
The deliberative attitude incorporates deliberative rationality and
n64 Deliberative rationality is a critical process of giving the best reasons for
and against substantive cultural judgments. Deliberative rationality determines
the existence of values, the scope of such values, and how to rank conflicting
values. This deliberative process recognizes the importance of fallibility and
the inclination to revise the culture's substantive commitments when the
In contrast, dedicated cultures understand their cultural values as
representing the final truth about the meaning and value of life. Serious
re-evaluation of cultural norms or values occurs rarely, and when it does
occur, it is limited by dedicated constraints.
n65 The reasoning of fully dedicated cultures includes both dedicated means as
well as dedicated ends. Dedicated cultures are concerned with predictability,
order, and closure and therefore restrict both the quality and the quantity of
appropriate cultural reasoning. Consequently, though reasoning occurs in
dedicated cultures, the depth and breadth of the reasoning is severely limited.
The difference between deliberative and dedicated cultures also rests in the
deliberative culture's commitment to autonomy and fallibilism. Through
self-regulation, deliberative autonomy guides the reason-giving process both
for the individual and for the society. The members of a deliberative culture
are always open to the criticism and correction of cultural and personal
values. The members, individually and collectively, seek evidence to discredit
their own values.
This paradoxical feature of the deliberative attitude derives from the
conviction that cultural values are reliable only when they continually survive
challenge. In a dedicated culture, the role of criticism is diminished greatly.
No explicit (and rarely implicit) cultural imperatives exist requiring or
permitting individual members to criticize, revise, and reform society. Indeed,
criticism, revision, and reform may be severely restricted or expressly
forbidden. The deep structure of a dedicated culture is concerned with truth
(at least from its own perspective), finality, and closure.
While the distinction between deliberative and dedicated inquiry does not
track the distinction between reason and tradition, it does include a
distinction between deliberative reasoning and dedicated reasoning. According
to this distinction, deliberative reasoning is fallibilistic and
autonomy-oriented, while dedicated reasoning is directed at preserving the
identity of the group as expressed through the dedicated values of that
culture. Moreover, dedicated cultures do not value individual autonomy and
self-realization independently, as do deliberative cultures.
n67 Deliberative cultures continually seek the best reasons to support cultural
inquiry. Consequently, a deliberative culture employs deliberative reasoning,
even concerning the question of its own legitimacy. Dedicated cultures restrict
reasoning within the confines of its dedicated values.
To describe deliberativism as incorporating deliberative autonomy is not to
say that all values in deliberative society are
"chosen anew" with each generation. Nor is it that autonomyoriented values are the only
values considered important by deliberative cultures.
n68 Of course, values in a deliberative culture
"have been adopted, inculcated, absorbed from an enveloping social environment."
n69 But deliberative values are always subject to critical re-examination.
Moreover, the justification of these values is always deliberative. If
challenged, those endorsing the deliberative attitude must present their
reasons in defense of a particular practice, as well as reasons showing why an
alternative practice cannot survive deliberative scrutiny.
2. Freedom and Authority
A second objection insists that the distinction between deliberative and
dedicated cultures founders because it characterizes deliberative cultures as
free or autonomous while dedicated cultures are authoritarian. Instead, the
argument continues, freedom is a necessary element of both kinds of cultures.
[*1288] deed, it is difficult to imagine what a totally free or a totally
authoritarian culture would be like. It is true that liberty and freedom often
are considered a critical feature of deliberative cultures, while dedicated
cultures are often authoritarian. However, when stated as a generalization,
this overlooks the fact that
"the history, culture and religion of the community may be such that
authoritarian regimes come . . . naturally, reflecting a widely shared world
view or way of life."
This is not an endorsement of authoritarian regimes. Instead, it merely
indicates that a dedicated culture might survive because it achieves the
continued loyalty of the majority of its members concerning the meaning of life
and the proper relationship of cultural and legal institutions to the people
affected by these institutions. A particular dedicated culture might hope to
survive by the consent of its members without imposing its values on an
unwilling populace. The members of the culture might be fervently willing to
preserve the culture.
n73 Keep in mind that requiring a consensus for cultural legitimacy does not
preclude dedicated cultures from being legitimate. Consent can be part of a
dedicated culture or regime.
n74 But doesn't this
[*1289] make the culture deliberative if its legitimacy depends on consent? Not
necessarily. A culture can rest on consent and still be dedicated if the values
consented to are dedicated values, not discovered or justified through
deliberative reasoning. Additionally, these values are dedicated if consent
concerns mere preference, and not deliberative consent.
n75 Deliberative consent requires more than liberty--which after all is a negative
freedom; in addition deliberative consent requires individual autonomy, and
autonomy refers to the operation of each individual's capacity for practical
Deliberative cultures rank individual and collective autonomy as primary
values. Therefore, deliberative cultures value consent, but the converse does
not follow. Like cultures generally, a dedicated culture must secure consent,
but it can do so without adopting the deliberative attitude. Similarly, consent
can be a legitimizing feature of a culture without the culture valuing
deliberative autonomy. To determine whether the culture is deliberative or
dedicated we must know more than that cultural legitimacy requires consent. If
values arise and are justified through a process of criticism and evaluation
with the goal of enhancing autonomy, then the culture is deliberative. If
values arise and are justified through appeals to authority for the purpose of
constancy and closure, then the culture is dedicated. However, consent can be a
feature of both processes. Just because cultural values are not deliberatively
chosen does not mean that these values are not genuinely valued by the culture,
or that they do not have great relevance to the lives of the members.
It is true, of course, that dedicated cultures are not autonomously chosen,
"but then no set of political institutions is ever freely chosen from the full
range of alternatives by a single set of people at a single moment in time."
n76 Even though a con-
[*1290] sensus of shared perceptions, judgments and actions might exist in a dedicated
society, the members of the society might sincerely endorse the regime, despite
never having consciously chosen it or even despite never having the opportunity
for such choice. Consequently, we cannot distinguish between deliberative and
dedicated cultures by appealing to the distinction between consent-oriented
societies and authority-oriented societies. Deliberative societies are clearly
consent-oriented, but in principle, there is no reason why dedicated cultures
cannot give a significant, though limited, role to consent.
It could be argued that there are weaker and stronger conceptions of consent.
The weak conception contends simply that the members of the culture consent to
the culture's values and requirements. The stronger conception maintains that
consent is required for cultural legitimacy. It could then be argued that only
the first conception of consent can be included in the notion of a dedicated
culture. I would go further to argue that even when consent is formally tied to
cultural legitimacy the values consented to may be dedicated values. Of course,
even when using the first conception, cultural legitimacy may still depend on
consent if only as a subliminal and highly informal mechanism.
If consent is not sufficient in itself to distinguish between deliberative and
dedicated cultures, autonomy clearly is. A deliberative culture considers
autonomy as a necessary and, in some circumstances, a sufficient condition of
the deliberative attitude.
n77 As stated earlier, the deliberative attitude includes deliberative
rationality, the process of achieving epistemic reliability through
fallibilistic verification. In the context of cultural inquiry this involves
giving reasons for and against both means and ends in a critical, fallibilist
fashion. The deliberative attitude, however, also includes deliberative
autonomy. Deliberative autonomy is concerned with individual and collective
self-determination, self-reflection, self-regulation, and self-criticism. We
shape our lives by creating norms of personal and social con-
n78 It is this deliberative attitude, consisting of deliberative rationality and
deliberative autonomy, that must be part of a deliberative culture. The
deliberative attitude, especially its component of deliberative autonomy, is
what distinguishes deliberative and dedicated cultures.
According to deliberative autonomy
"an autonomous person is self-governing where self-government requires that
people engage in deliberation in shaping the many dimensions of their lives,
personal and political."
n79 The deliberative attitude
"encourages autonomy, our ability to shape our lives in accordance with
n80 Amy Gutmann provides an instructive account of the kind of autonomy embraced
by the deliberative attitude.
An autonomous person wants to evaluate choices in life, including the choice
of delegating decisions, and live life in accordance with these evaluations.
The desire to live such a life is a matter of autonomous character; the ability
is also a matter of information, education, will power, and good fortune. By
its very nature, autonomy cannot be given to people; it must be claimed. But
political practices and institutions can encourage or discourage autonomy,
render autonomy impossible or within our grasp.
Gutmann is right. A person cannot be autonomous if her selfconception prompts
her to accept the views of others uncritically and if she has no great desire
to be unique, distinct, and independent. One must struggle to become autonomous
[*1292] self-authenticating. A person is self-authenticating when her character
ultimately derives from self-critical choices made in the context of a
community of other individuals adopting the deliberative attitude. A
self-authenticating person is one whose character is justified to oneself and
It is crucial, however, not to overlook the requirement that deliberative
autonomy can exist only when the conditions for developing the deliberative
attitude are institutional fixtures of one's culture. Among these conditions
are freedom from external compulsion and encouragement of the inclination to be
selfauthenticating. Only when these conditions are present can a deliberative
character develop. In this sense, a deliberative person must be given autonomy
before she can claim it. Unchosen conditions of choice must first exist for
autonomy to exist at all.
Self-authentication involves appreciating the conditions that make different
lives meaningful as well as the conditions that lead to an impoverished
emptiness and alienation. The political conditions necessary for the
development of the deliberative character must allow for experimentation,
revision, and a determination to stand behind self-authenticated values. The
deliberative character has little chance in societies in which such major
institutions as schools, churches, and the workplace do not encourage the
development of this inclination. Only when such political conditions exist can
a person then claim autonomy.
Gutmann is also right in stating that deliberative autonomy does not preclude
delegating decision-making authority. The key
[*1293] word here is delegating in contradistinction to abdicating. In an array of
circumstances, it makes perfect sense to let others make decisions for you
provided that you retain ultimate control over the decisions and that they are
accountable to you. Thus, a deliberative culture, one which encourages
autonomy, need not be radically individualistic or one in which each person
decides everything of importance from scratch.
n85 When there are good reasons for delegating authority, the deliberative
attitude is fulfilled, not abrogated. By contrast the alienation of autonomy is
anathema to the deliberative attitude.
n86 Alienation occurs when one gives up the right to question, criticize, and to
hold others accountable, or when others assume such authority by coercion.
3. Democracy and Authority
This last point has implications for democracy. A democracy can exist when
people are free from external coercion, even when they are not autonomous. In
other words, the idea of democracy implies that political decisions rest with
the citizenry; it does not imply that each citizen's opinions be autonomous or
reflective. Consequently, if autonomy depicts a fundamental ingredient in the
deliberative attitude, a society can be democratic despite not encouraging the
deliberative attitude. The limiting case of such a society is a dedicated
society that is democratic in permitting the will of the majority to prevail
simply because it is the majority, without encouraging deliberative politics.
n87 The point here is that we cannot under-
[*1294] stand the distinction between deliberative cultures by distinguishing between
democratic and nondemocratic cultures.
n88 Sometimes the background conditions of democratic societies depict a
dedicated, not a deliberative, culture. For example, when wealth plays an
inordinate role in voting, the resulting system of voting tends to be dedicated
and one that is anathema to democracy.
In a dedicated culture, even when a consensus exists concerning its
legitimacy, the consensus is contingent and sometimes unstable. In a
deliberative culture, consensus is systematically tested and refined as a
matter of cultural and institutional imperative. In a dedicated culture,
everyone might consent to the cultural system when the effects of its
institutions are stable and productive. But then its members are lucky that
their culture has such fortuitous consequences. In such circumstances, the
consensus is contingently stable. A dedicated culture is still less free than a
deliberative one because critical examination of the culture is not required or
encouraged, and in some cases it is proscribed. Deliberative cultures seek a
consensus on certain substantive values, but often create the conditions for a
plurality of values. Some might argue that dedicated cultures empirically fare
better in creating at least a rudimentary form of stability than deliberative
On the other hand, when debilitating dissension breaks out in a deliberative
n90 the institutions for criticism and
[*1295] change shift into overdrive if the society is designed correctly. Since they
are already in operation in a deliberative culture, they can be readily applied
to the crisis at hand. Should dissensus occur in a dedicated society, the only
vehicle for solution might be the very institutions that cause the dissensus in
the first place. No independent process for expressing, accommodating, and
dealing with dissensus exists, except coercion. Consequently, while pockets of
autonomy and freedom exist in dedicated cultures, autonomy is more pervasive
and deeper in deliberative cultures. Deliberative cultures intend criticism and
revision to be institutional features of the culture, processes in which every
individual is entitled to engage. In dedicated cultures, criticism and revision
are not the primary responsibility of the citizen, if a responsibility at all.
If criticism and correction exist, they are usually the priority of a
privileged class of individuals. Generally, both the quality and quantity of
criticism differ in deliberative and dedicated cultures.
4. Reason and Religion
The distinction between deliberative constructs and dedicated constructs
tracks the distinction between reason and religion, but is not identical to it.
Although many religions include dedicated constructs exclusively, some do not.
The more a religion insists that the proposition
"God exists" is meaningful and provable, the more that religion will need deliberative
constructs in its argument. Religions that cede authority for making personal
and moral decisions to the individual will depend upon deliberative concepts.
Deliberative concepts are even required by those religions emphasizing faith as
a primary religious virtue, provided that the religion distinguishes between
faith as a way of coming to know or understand God and deliberation as a way of
making the concept of God intelligible and provable.
n91 Moreover, religions that emphasize responsibility
[*1296] and guilt require at least a limited degree of deliberative autonomy within
the strict confines of the religion's dedicated values, and individual members
of the religion might be required to engage in deliberation and choice. In
principle, a religious culture can be committed to maximizing religious freedom
for the members of one religion or for members of every religion within the
5. Open and Closed Societies
Nor is the distinction between deliberative and dedicated cultures identical
to the distinction between open and closed societies. A culture is open when it
permits information from the outside to enter freely into its confines. A
closed culture forbids such information from entering the society, or if such
information is permitted, the culture proscribes the formal, public recognition
of the information. But an open culture can be a dedicated culture, and a
closed culture can be a deliberative one. The question of whether a culture is
deliberative or dedicated involves the role evidentiary information plays in
resolving cultural conflicts and in promoting cultural change. A deliberative
culture actively seeks appropriate evidentiary information relevant to the
resolution of conflicts and to promoting cultural change, while a dedicated
culture does not seek such evidentiary information, and when it is exposed to
such information does not regard it as evidence for or against its dedicated
values. The question of openness pertains to the extent its members are exposed
to or have access to foreign evidentiary information. The question of
deliberative versus dedicated goes to whether the information plays an
evidentiary role in the culture's system of cultural inquiry.
Is it then possible to have an open dedicated culture or a closed deliberative
culture? A culture can be dedicated though still open in that it does not
prevent evidentiary information from entering its borders. When such
information does insinuate itself, in a dedicated culture, it will not
typically become the
[*1297] ground for cultural change unless the information is sanctified through a
dedicated process of cultural legitimacy. Conceivably, a dedicated culture can
be so confident of its security that it permits foreign information to freely
enter the society. Thus, a culture can be open, yet remain dedicated. An open,
dedicated culture is committed to its values until an implicit cultural process
overturns these values. One can imagine an open dedicated culture whose values
are so beneficial to its members, and to which the members are so devoted that
the openness of the society has little effect on its dedicated values. For
example, Hasidic Jewry exists in an open American society, and its members are
aware of information from the greater society, yet they remain loyal to their
But can a deliberative culture be a closed one? Consider a deliberative
culture existing in a sea of dedicated cultures each of which contains a
principle of duplicity or deception as a moral imperative. A deliberative
culture therefore has a reason to suspect the truth of evidentiary information
entering its domain from foreign cultures. In response to this situation, a
deliberative culture can close its conceptual borders to the surrounding
territories on the ground that since incoming information is unreliable and
untrustworthy, it is preferable to exclude such information entirely and apply
the deliberative process only to information that they can verify themselves.
In this situation the culture is a closed culture, yet it remains deliberative.
I do not want to suggest that a closed deliberative culture can be as
deliberative as an open deliberative culture. But that does not mean that the
concept of a closed deliberative culture
[*1298] is incoherent. In actual circumstances, we may not find any open societies
that are dedicated or any closed cultures that are deliberative. But this
equivalence is an extensional equivalence, not an intensional one. The
distinctions between deliberative cultures and dedicated cultures, on the one
hand, and open and closed cultures, on the other, overlap. Nevertheless, these
distinctions are not conceptually equivalent.
One might object that this conception of openness is highly attenuated and
tendentious. How can a culture be open unless it seeks out disconfirming
evidentiary information with the intent of comparing it to present cultural
values? Moreover, deliberative cultures may not be possible when information is
unreliable. But since information is almost always unreliable to some degree,
the critic might reply that ideally the distinction between deliberative and
dedicated cultures tracks the distinction between open and closed societies.
This may amount to a mere stipulation that an open society is deliberative. If
so, it must be evaluated by determining whether the stipulation is useful. I
would argue that this stipulation is counterproductive because by assimilating
the distinction between open and closed cultures to the distinction between
deliberative and dedicated cultures, we foreclose the possibility of
understanding the causal relations between openness and deliberation on the one
hand and closed and dedicated on the other. Though conceptually distinct,
openness may in part causally explain deliberative cultures, while the feature
of being closed may be a causal condition of dedicated cultures.
B. Deliberativism in Education and American Constitutionalism
This distinction between deliberative and dedicated constructs arises also in
the context of education. We can distinguish between educational processes that
encourage deliberative rationality and autonomy and those that encourage
fidelity to dedicated cultural values. Deliberative educational processes, of
course, cannot dispense with certain fixed elements, since a deliberative
culture has a particular past and context that must be understood just as much
as in dedicated cultures. In deliberative cultures, these fixed elements are
not dedicated because they must be amenable to deliberative justification. An
important difference between deliberative and dedicated cultures is
[*1299] that the latter is in some important sense content with itself, while the
former seeks to challenge, criticize and refine its values. This description is
not biased in favor of a deliberative culture, since challenging one's culture
is not always good, and being content with one's culture is not always bad.
The distinction between deliberative and dedicated concepts will often apply
in different ways to the same item. For example, it could be argued that the
United States Constitution is a deliberative document concerning white males,
but not concerning Native Americans, African Americans, women, and others. For
these groups, one would have to say that the Constitution was almost entirely a
dedicated document. None of these groups were permitted to engage in a
deliberative process during the creation and ratification of the Constitution,
nor could they participate in deliberative politics afterward. This shows that
a document or system of government can be deliberative for some people and
dedicated for others.
n95 Moreover, certain parts of a generally deliberative document can be dedicated.
For example, the United States Senate is arguably a dedicated branch of
government, since there is no obvious deliberative reason for supporting
C. The Perils of Deliberativism
The distinction between deliberative and dedicated cultures is intended to
represent two distinct strategies for living, two different ways of
experiencing--and acting in--the world. This article does not presume that
either style is inherently superior to the other. In Anglo-American culture,
[*1300] reasoning is often denigrated as unthinking, shallow, or antithetical to human
flourishing. Nevertheless, dedicated cultures are at least predictable, stable,
and promise to provide uniquely correct solutions to cultural conflicts.
Moreover, dedicated cultures attempt to preserve group identity and loyalty and
permit the communication of cultural messages through an identifiable and
Dedicated cultures also provide an attractive conception of security and
social continuity. In Alasdair MacIntyre's childhood culture, for example,
"what mattered . . . were particular loyalties and ties to kinship and the land.
To be just was to play one's assigned role in the life of one's local
community. Each person's identity derived from the person's place in their
community and in the conflicts and arguments that constituted its ongoing . . .
n97 Moreover, a dedicated culture
"consists in the temporary saturation of his first-person perspective with a
sense of the permanence of the social world. . . . Tradition provides one of
the ways in which men acquire the sense of their continuity."
n98 Dedicated cultures provide social customs and ceremonies that anchor
individuals in predictable, gratifying ways of life. For these and other
reasons, this article does not presume that deliberative cultures are superior
to dedicated ones. Moreover, independent reasons exist for doubting the
superiority of the deliberative attitude.
Too much deliberation in one's practical life can result in anguish and
n100 Because deliberation knows no inherent closure, one can never enjoy the peace,
certainty, and predictability that closure brings. Since deliberation is
inextricably interwoven with autonomy, the deliberative attitude must continue
to engage in self-criticism, self-reflection, and the continual revision and
refinement of personal and collective strategies of problem-solving.
n101 Indeed, the deliberative attitude praises these virtues because they will
enable the individual to become self-regulating.
n102 The problem of closure arises because the deliberative attitude does not
itself appear to provide a principle for determining when enough deliberation
n103 It is not obvious that such a principle can be constructed for an individual's
practical reasoning. Yet, even if such a principle exists for the individual,
it is unlikely that we can construct such a principle across persons.
n104 In other words, one high
[*1302] cost of the deliberative attitude is the risk of interminable deliberation and
Another cost of the deliberative attitude is the assumption of responsibility
that comes with a commitment to the deliberative attitude. Deliberation is
directed towards getting things right for oneself and others. The deliberative
attitude is ultimate; at least in theory it defers to no further principle. In
this way a deliberative person might be condemned to be free.
n106 Depending upon how well one can endure the strain of deliberation, a person
might choose one last deliberative act by deciding to live a dedicated life
instead. Everyone knows someone who just cannot stop reevaluating his decisions
and second-guessing himself. The allure of a dedicated life might be
irresistible to such a person, if only he can claim it.
The problem of closure can be generalized beyond personal decisions because
"renders our social and moral ties too open to dissolution by rational criticism."
n108 Dedicated values, on the other hand, provide a kind of closure, or better, an
independent procedure for resolving social and moral issues that one can adopt
in advance. Everyone risks the uncertainty that leading a life of deliberative
autonomy engenders. We can avoid this by deciding in advance to adopt dedicated
values. The question of whether to adopt the deliberative attitude or instead
to adopt a system of dedicated norms and values is an open question that might
not lend itself to general or final answers.
A defender of the deliberative attitude might reply that choosing a dedicated
life requires deliberation even if only for one last deliberative decision.
Since a deliberative decision--how one should live--is made in any case, it is
incumbent upon us to decide well. Thus, we cannot escape deliberative
reasoning: we can only decide to do it well or poorly. Doing it well requires
that we keep our deliberative options open. However, the deliberativist
overlooks the fact that no one engages in deliberative autonomy in all
situations. The question here then becomes how often and in what kinds of
circumstances should we deliberate. Of course, that too involves a deliberative
choice. But even if the deliberative attitude must play some role in one's
system of practical reasoning, one can still choose a system that is
predominantly dedicated. If so, then the reply establishes only that
deliberation is required in some circumstances. It does not require anyone to
adopt a predominantly deliberative set of norms and values.
These problems do not constitute dispositive evidence against the deliberative
attitude. They are intended to show only that the distinction between
deliberative and dedicated cultures does not presume the superiority of the
n110 Deliberative cultures object to dedicated constructs because they do not
foster self-criticism, self-determination, and so forth. Moreover, dedicated
systems fail to prepare you for contemporary democratic society. In short,
dedicated cultures fail because they are not deliberative, but this does not
provide a non-circular argument against dedicated cultures.
3. The Identity and Justification of a System of Norms
We should distinguish between the identity or characterization of a system of
norms and values and its justification. How we identify or characterize a
system of norms depends upon the social expectations that naturally flow from
the characterization. For example, when we identify a system of norms as
deliberative, we invite others to systematically criticize, revise, and attempt
to falsify the system's norms. When we identify a system of norms as dedicated,
we expect allegiance. How we identify or characterize a system of norms is one
thing; how we justify that system is another. We can therefore have a dedicated
system of norms that is justified deliberatively, and we can have a system of
deliberative norms that are justified by appealing to dedicated factors. The
United States military is a dedicated system that in principle has a
deliberative justification, whereas a system of religious norms committed to
the deliberative attitude because it is the word of God is an example of a
system of norms characterized deliberatively, but whose ultimate justification
appeals to a dedicated factor, namely, the existence and will of God.
n111 Of course, neither example is a case of a fully deliberative or a fully
dedicated system, and it is these ideal types that concern us here.
The distinction between deliberative and dedicated cultures is a distinction
between two types or conceptions of comprehensive doctrines of the good. The
virtues of the deliberative attitude are self-determination, self-realization,
and self-authentication. The virtues of the dedicated attitude are closure,
predictability, stability, and security. It seems to follow that since
liberalism is committed to the deliberative attitude, it incorporates a
conception of the good.
n112 If so, liberalism cannot then be neutral
[*1305] concerning different conceptions of the good and may be unable to tolerate
different conceptions of the good not based on the deliberative attitude.
n113 Let us now explore this critical issue.
III. Liberalism and the Concept of the Good
A. Does Liberalism Contain a Conception of the Good?
The distinction between deliberative and dedicated cultures does not depend
upon an answer to the question of whether liberalism contains a conception of
n114 Nevertheless, an answer to this question is required to show that liberalism
cannot tolerate dedicated cultures.
n115 In this section I discuss the issue of whether liberalism contains a
conception of the good, and if so, whether liberalism unfairly benefits
liberals in constructing principles of public reason.
Liberalism contains a conception of the good because it is committed to the
n117 Taking the deliberative attitude seriously entails adopting it as the
principle for motivating and justifying your choice of substantive goals.
n118 This means that whatever your substantive goals concerning health, knowledge,
wealth, and social benefits, you express and structure these substantive values
through deliberative rationality and deliberative autonomy. In short, your
substantive goals are not merely important in themselves, but rather in how
they are motivated and justified by the deliberative attitude. This makes the
deliberative attitude a constituent feature of your system of substantive
values, and arguably more important than the substantive values themselves.
1. Comprehensive Liberalism and
Since the deliberative attitude is a constituent feature of the good, liberals
are necessarily benefited by adopting the deliberative attitude in the context
of political justification.
n119 Let us call the liberal who embraces the deliberative attitude as a
constituent feature of both political reason and social reason
"the comprehensive liberal," and let us call
"the political liberal" one who embraces the deliberative attitude as a constituent feature of
political reason alone.
n120 Does the comprehensive liberal benefit from the deliberative attitude in
[*1307] course in a way that the political liberal does not?
n121 If she does, then adopting the deliberative attitude in political contexts is
n122 nor impartial, nor merely the result of an overlapping consensus.
n123 Nor is the relationship between political reason and social reason contingent.
Instead, the deliberative attitude as the sine qua non is necessarily related
to social liberalism, and its adoption, therefore, unfairly favors
comprehensive liberals over political liberals.
Rawls, a champion of
political liberalism, rejects this conclusion by invoking the principle that the right is prior to
n125 The theory of the right concerns those rights and duties that follow from the
most plausible conception of political justification, while the theory of the
good concerns those traits of persons and states of affair that have moral
Rawls, the theory of the right is independent of the theory of the good.
n126 In other words, political justification does not presuppose any particular
conception of the good, or comprehensive metaphysical, epistemological or
ethical doctrine. Given a plurality of different conceptions of the good,
reasonable people--people who regard themselves as free and equal, and who have
a sense of justice and a particular conception of the good--will construct a
political domain governed by fairness and impartiality, permitting or
guaranteeing a plurality of comprehensive doctrines about the meaning of life.
Rawls' goal is to show how people with incompatible conceptions of the good can agree
on fundamental principles of political justification. In the Rawlsian
framework, this goal must be possible for liberal democracy to function at all.
In order for
Rawls' project to succeed, he must adopt a narrow conception of the independence of
the right and the good. Indeed,
Rawls appears to believe that only if principles of political justification
logically presuppose principles of the good is the right dependent upon the
good. There are, however, alternative conceptions of the dependency of the
right and the good. The right is dependent upon the good when a particular type
of person--with her particular conception of the good--is drawn to and benefits
from a particular conception of the right. If comprehensive liberals tend to
adopt a particular conception of political justification, and if they benefit
over others in doing so, we have reason to believe, barring an alternative
explanation, that their conception of the good is more closely allied with
political justification than are other conceptions of the good.
What benefits does the comprehensive liberal gain from adopting the
deliberative attitude that are unavailable to the political liberal?
Comprehensive liberals can justify principles of political reason all the way
down, whereas political liberals can justify principles of political reason
deliberatively, but must justify their conception of the good in dedicated
terms or not at all. This precludes political liberals from achieving a unity
in their conception of justification throughout their public and nonpublic
lives, as well as throughout their system of practical reasoning generally.
2. The Problem of Unity
Two problems arise in this context. The first problem is a conceptual and
moral point about the advantages of comprehensive liberalism over
political liberalism. The advantage is that the comprehensive liberal is afforded the opportunity of
achieving a unity between political reason and social reason not afforded to
the political liberal.
n128 Because she uses the deliberative attitude in both political and social
contexts, the compre-
[*1310] hensive liberal requires only one conception of justification for the central
areas of her life. Moreover, the comprehensive liberal achieves a structure to
her consciousness, a unification of the public and private not available to the
Liberalism is often commended or criticized for embracing a separation of the
public and the private, but in one sense comprehensive liberalism does not
embrace this dichotomy at all. Instead, it seeks the simplicity of a single,
though sophisticated, attitude unifying the public and the private or the
political and the social into one perspective. Comprehensive liberalism seeks
the unity of perception, thought, and action in terms of the deliberative
attitude. Everything the comprehensive liberal experiences, reflects on, and
decides to do can be explained by the deliberative attitude. In short, the
comprehensive liberal is committed to the deliberative attitude not only for
its instrumental rewards, but more importantly, for the constituent role the
deliberative attitude plays in unifying her conceptions of the right and the
By contrast, the political liberal, who is a non-liberal concerning social
reason, is compelled to live a bifurcated life. She must accept the
deliberative attitude in political justification and dedicated attitudes in
social justification. In other words, she adopts the deliberative attitude when
justifying the basic structure of society and dedicated attitudes when
determining the meaning of her life. There is a price to pay for this
bifurcation: one's deepest commitments must be suppressed or disguised or, at
best, become truncated. In the context of political justification,
political liberalism compels individuals committed to dedicated social values to lead closeted
political lives denying their dedicated attitudes. In the context of political
justification, political liberals must approach political questions obliquely
and incompletely. The comprehensive liberal, on the other hand, can express her
deepest commitments by embracing the deliberative attitude because it is this
attitude that unifies her political and social lives. Liberalism grants the
benefits of unity and coherence in one's life to the comprehensive liberal but
withholds them from the political liberal. More importantly,
political liberalism takes a stance on the formal dimension of a person's conception of the good or
comprehensive view of life.
[*1311] comprehensive doctrines that permit the bifurcation of political justice and
conceptions of the good need apply. That in itself is part of a particular
conception of the good.
3. The Problem of Authenticity
The second problem can be called, absent a better term, the problem of
authenticity: Does liberalism encourage people to act sincerely on their
n130 The problem of authenticity directly implicates the stability of a liberal
regime. Since a constituent feature of the comprehensive liberal's conception
of the right and her conception of the good is the deliberative attitude,
embracing this attitude in political justification while denying a role to the
concept of the good generally breeds suspicion and distrust, and therefore
threatens the stability of democratic government. The political liberal
perceives the role the deliberative attitude plays in the comprehensive
liberal's life and begins to believe that liberalism is skewed in the
comprehensive liberal's favor. For the comprehensive liberal, the deliberative
attitude structures, unifies and integrates both her conception of public
reason and her conception of the good. In short, it structures the
comprehensive liberal's practical reasoning generally. It is little wonder that
the political liberal is likely to become suspicious of the comprehensive
liberal and conclude that
political liberalism is a charade. More importantly, the comprehensive liberal should want
political liberals to be as deeply committed to their common political
n131 Only in this way is the appropriate force behind social unity possible.
The problem for authenticity arises because adopting the deliberative attitude
is or, at least, appears to be taking sides in the battle of the conception of
n133 Typically, the deliberative attitude generates substantive answers to
questions of political organization that are at odds with dedicated answers to
these questions. Consequently, those who must suppress their conception of the
good often feel that
political liberalism is unfairly skewed toward the comprehensive liberal, disadvantaging those with
dedicated conceptions of the good.
Political liberals might contend that whenever questions of justification
arise they always preclude reference to the good because justification requires
the original position. And the original position is neither liberal nor
non-liberal, but uses a neutral conception of deliberation that avoids
characterization in these terms. Consequently, justification in terms of the
original position cannot presuppose anyone's conception of the good.
n135 But this reply simply denies, without argument, that the deliberative attitude
is a constituent feature of a conception of the good. If a particular
conception of political justification is more likely to be chosen by a people
having a particular conception of the good, and if these same people are
benefited by that conception of political justification, then we have reason to
say that this conception of political justification is skewed toward people
having that conception of the good.
The political liberal will not deny that principles of public reason might
benefit some groups over others. Instead, the political liberal replies that
this overlooks an important distinction between justifying the principles of
justice and the consequences of adopting these principles.
n136 In this view, liberalism need not, and perhaps, cannot provide consequential
neutrality; on the other hand, it must be justificatorily neutral. Is this
distinction between the justificatory and consequentialist features of public
reason dispositive? In adopting a certain conception of public reason, should
not its predictable consequences be relevant to its desirability?
n137 When justificatory neutrality continually has nonneutral consequences and
[*1314] quences of the same kind, it is unclear how this distinction helps. If liberal
justification continually has deliberative consequences, isn't the distinction
between justification and consequences artificial? But more importantly, how do
we distinguish between the character of political justification and the
character of a conception of the good? If the character of both includes the
deliberative attitude, it seems to follow that the deliberative attitude
integrates the comprehensive liberal's conception of the right and her
conception of the good. Moreover, it also appears that the relationship between
the comprehensive liberal's conception of the right and her conception of the
good is more than a contingent relationship; instead, the conception of the
right and the conception of the good are non-contingently unified by the
Joshua Cohen attempts to defuse the objection
"that the ideal of deliberative democracy is objectionably sectarian because it
depends on a particular view of the good life--an ideal of active citizenship."
n139 He argues that the good is relevant to liberalism either because it is part of
liberal justification or because it is required for stability.
n140 Cohen grants that a conception of the good may be required for stability, but
"a political conception is objectionably sectarian only if its justification
depends on a particular view of the human good, and not simply because its
stability is contingent on widespread agreement on the value of certain
activities and aspirations."
n141 For national allegiance to be part of the justification of a political
democracy, patriotic devotion may be required for its stability.
n142 If patriotic stability is truly required for a democracy in all practically
conceivable circumstances, it is unclear how it avoids inclusion in the
justificatory framework. Moreover, as a conception of the good, patriotic
devotion, when acted upon through the legal and political institutions of the
state, may burden conceptions of the good not including patriotic devotion or
those explicitly opposed to such a conception. The real test of
[*1315] sectarianism should be whether those values associated with the political
conception under evaluation burdens other conceptions of the good. Since this
will almost always be so, the charge of sectarianism must be taken much more
This explains the traditional liberal's rejection of the idea of a liberal
conception of the good. If there is no such conception, then the problem of
authenticity--appearing to favor the liberal's conception of the good--drops
out. The liberal's conception of the good cannot be unfairly favored or unduly
benefited because the liberal, qua liberal, can have no good. Any conception of
the good the liberal assumes is conceptually and morally independent of
political liberalism. If the liberal's conception of the right was conceptually and morally
independent of the good, then
political liberalism as a theory of the right favors no conception of the good. However, the kind
of justification that occurs in the original position is deliberative, and
deliberative people are likely to adopt this type of justification and will
benefit from adopting it. When a particular kind of justification is so
intertwined with a particular conception of the good, one is warranted in
saying that it politically if not logically presupposes that conception.
The theory of the good answers the question
"what sort of culture human beings have good reason to seek to fashion for
themselves and their descendants, or as a theory of what sort of human beings
it is desirable in principle for cultures to continue to form. . . ."
n143 The theory of the good must determine whether the bifurcation between the
political and the personal is an attractive feature of
political liberalism's moral psychology. This conception of politics sacrifices unity and coherence
in one's moral personality.
n144 In answering the question
"what kind of person is it desirable to be?" liberalism's answer must be the kind of person committed to the deliberative
attitude. This renders the deliberative attitude a particular conception of the
good. The deliberative attitude unifies and structures the comprehensive
liberal's conceptions of the right and the good.
[*1316] Hence, it is difficult to understand how someone committed to the deliberative
attitude concerning the good could fail to adopt the deliberative attitude in
the context of political justification. Consequently, the comprehensive liberal
benefits more from
political liberalism than does the political liberal because the connection between the
comprehensive liberal's conception of the right and her conception of the good
is conceptual, not accidental.
Rawls believes that reasonable people will be drawn to
political liberalism, not merely deliberative people.
n145 And reasonable people can have different conceptions of the good, even
dedicated conceptions of the good. However,
Rawls employs an unanalyzed conception of reasonableness, one that must be specified
in greater detail if reasonableness is used to connect the political culture to
principles of justice.
n146 Even if
Rawls succeeds, he can have no realistic hope of transposing this argument to
international multicultural contexts, since no shared political culture exists
in that context.
n147 Moreover, it is very dangerous to rely on the notion of reasonableness as the
basis for determining which conceptions of political justification are
acceptable. The common tendency is to regard the dominant group's conception of
reasonableness, whether liberal or nonliberal, as a constraint of
reasonableness generally and therefore as a constraint on political
justification without an independent argument for this conclusion.
Rawls uses reasonableness to achieve a form of neutrality that he earlier believed
n149 This new political methodology can achieve moral neutrality only in highly
homogeneous and localized contexts or only in the sense of a modus
n150 Consequently, liberal justification is not neutral because it incorporates the
deliberative attitude, and the deliberative attitude is a constituent feature
of a liberal conception of the good.
Liberalism must be defended, not as a theory morally prior to any theory of
the Good, but as a component of such a theory, or as one value or set of values
among a larger set. That is, the principal values of liberalism, individual
autonomy, and political and legal neutrality vis-a-vis lifestyles will find
their place--and their limits--among the competing, and at times compelling,
values of welfare, truth,
[*1318] desert, friendship, love, community, tradition, and so forth.
In other words, if individuals committed to the above virtues as part of their
conception of the good embrace deliberative justification, then that is
evidence, barring an alternative explanation, that deliberative justification
in the original position is linked to the liberal conception of the good.
Whether we describe this connection as one of presupposition or dependency is
irrelevant. The connection between political justification and the concept of
the good is close enough to justify charges that liberalism favors a particular
conception of the good.
Liberal virtues are mirrored in
political liberalism, and when taken seriously have the tendency to insinuate themselves in one's
personal life. Moreover, once instilled into one's life these virtues have a
tendency to undermine dedicated values. A liberal is someone who holds back
from judgment at least until reasons have been given for the judgment and often
until she compares those reasons with reasons for alternative judgments. In the
most favorable picture, the liberal is a person who chooses to be
self-legislating, to be committed to her own sense of values, and to be
n154 This involves being committed to few, if any, dedicated values. When a liberal
does embrace dedicated values, it is only after deliberatively evaluating them
and granting them the liberal pedigree as a result of this deliberation.
Consequently, how can liberalism tolerate dedicated cultures?
B. Liberalism and Tolerance
1. The Traditional Conception of Tolerance
The traditional conception of tolerance involves forbearance in the sense of
permitting the occurrence of something odious or disparaged. According to this
conception, a person tolerates only something that she disapproves of or
abhors. It makes no sense according to this conception of tolerance for an
individual to tolerate something that she can see the point of, respect, or
appreciate. Let me suggest that the standard conception of tolerance is an
incomplete conception of tolerance, one that almost every political theory can
accept. As a philosophical matter, tolerance is interesting when it relates to
moral psychology and depicts attitudes that reflect or mirror the basic
categories of the theory under examination. An interesting conception of
tolerance shows how the moral attitudes conspicuous to the theory under
examination can generate an appreciation of the tolerated attitudes. When
tolerance is merely forbearance, liberalism is merely a call to tolerance
without an explanation or justification of why tolerance follows from a
deliberative structure. When liberal theory claims to tolerate alternative
attitudes better than non-liberal theories, it does so by begging the question
of which attitudes deserve toleration. Why is liberalism more attractive than
fascism? Because liberalism can tolerate more non-liberal attitudes than
fascism can tolerate nonfascist attitudes. If liberalism embraces the good of
the deliberative attitude, however, its capacity for explaining and justifying
toleration of non-liberal, dedicated cultures becomes problematic. Liberalism
is then committed to a conception of the good that is antithetical to dedicated
2. Toleration as Appreciation and Respect
Toleration beyond a modus vivendi shows how an individual's scheme of
practical reasons can tolerate alternative schemes based on the core element in
her practical scheme. In order to defend this proposition let us distinguish
between three kinds of tolerance. The first form of tolerance is appreciation.
Although I disagree with your radical political views, I nonethe-
[*1320] less recognize their force and commitment.
n155 Because they represent an alternative perspective on cultural conflicts and
cultural change, I appreciate how you value them. Your views represent an
alternative perspective, a different conception of how to solve problems of a
certain kind. I might even learn something by considering them, though without
endorsing them or believing them to be true.
n156 The basis for toleration in this sense is the deliberative attitude. I
recognize that your views derive from a deliberative process that makes your
view intelligible to me, sometimes even plausible. I can perceive the
deliberative process at work in the derivation of your views.
The second kind of tolerance is respect. I tolerate your views not because I
would ever consider them true or plausible, but because I respect you.
Although, I believe that your views are totally false, I respect them because I
can perceive their deliberative basis. The third sense of tolerance simply
involves a modus vivendi approach to a plurality of values. In this sense, I
need not appreciate nor respect your views; I simply permit them because doing
so brings about my independent goal of living in a pluralist society. Were I to
have my druthers, I might act to repress the expression of your views or take
more aggressive action to prevent you from holding such views.
n157 But since I have neither the power, nor perhaps the inclination to do so, I
ruefully permit their expression.
Joseph Raz captures this last sense of tolerance when he observes that
"implies the suppression or containment of an inclination or desire to
persecute, harass, harm or react in an unwelcome way to a person."
n158 According to Raz's conception,
"a person is tolerant if and only if he suppresses a
[*1321] desire to cause to another a harm or hurt which he thinks the other deserves."
n159 Tolerance requires refraining from
"an activity likely to be unwelcome to its recipient, or of an inclination so to
act which is in itself morally valuable and which is based on a dislike or
antagonism towards the person or a feature of his life, reflecting a judgment
that these represent limitations or deficiencies in him. . . ."
n160 Nevertheless, since increased knowledge can also increase or encourage
tolerance, tolerance is more than just an inclination to curb morally
oppressive views or limitations and deficiencies of character or conduct.
Tolerance occurs when we learn to appreciate or respect someone's views after
initially being inclined to suppress them.
n161 True tolerance is more than a mere tight-faced acceptance of the obnoxious or
outrageous; it is in part learning to see the other person's life from her
perspective, a coming to understand what we still consider to be false, or
morally wrong. Learning to tolerate another's perspective in the sense of
appreciating it brings us close to, but does not compel, embracing Pascal's
"Tous comprendre est tous pardonner."
To summarize, I tolerate your views when I believe them to be false, yet I
appreciate their significance, respect their derivation, or permit you to utter
them because suppressing them will cause a greater harm. If I can learn to
appreciate the significance your views have for you and others, I can tolerate
them even if I still convey my disapproval. Similarly, if I cannot appreciate
their significance, I may still respect your right to express views that I
believe are morally pernicious. Tolerance is thus a complex attitude that
incorporates these and other features of moral psychology and should not be
viewed as limited merely to the modus vivendi conception of tolerance.
Liberalism cannot explain and justify toleration of dedicated cultures in the
first two senses; it cannot appreciate or respect dedicated cultures.
n164 Since liberalism is committed to a deliberative strategy for resolving
cultural conflicts and cultural change, it cannot explain and justify
appreciating or respecting non-deliberated systems. In fact, dedicated cultures
are in an important sense unintelligible from a liberal perspective. They can
be described by liberalism, but explaining their deep structure is a
non-starter for liberalism.
Some liberals may not care if liberalism fails to explain liberal toleration
of dedicated cultures in the sense of appreciation or respect, provided it can
explain and justify tolerating dedicated cultures as a modus vivendi.
Rawls and Nagel, however, reject the notion that tolerance should be understood in
modus vivendi sense.
n167 The reason for this rejection is that such an accommodation appeals to
instrumental, not intrinsic values.
n168 A modus vivendi approach depends on equal accessibility to the means of power
and domination. It implies that other groups hold views which are not
appreciated, nor respected, but instead are despised and feared. Further, the
requirement of modus vivendi is not explained and justified by liberalism,
except in an ad hoc manner.
If liberalism is committed to either a conception of tolerance as appreciation
or of respect, the theory then explains and justifies why one liberal culture
should tolerate other liberal cultures. Since liberalism involves a
deliberative strategy of cultural inquiry, all values, whatever their
substantive dimension, should be appreciated or respected if they result from
the deliberative attitude. But this is precisely the sort of move liberalism
cannot make regarding dedicated cultures. A liberal
[*1324] culture cannot appreciate or respect dedicated cultures, not merely because
its values may not be liberal, but more importantly because the process for
deriving or discovering these values does not admit deliberative justification.
Consequently, if liberalism is committed to only a modus vivendi conception of
tolerance, it cannot explain and justify liberal toleration of other cultures
in a conceptually and morally significant fashion.
n169 Only appreciation or respect can provide liberal grounds for tolerance, and
these grounds are unavailable to the liberal perspective on dedicated cultures.
Let us draw together the threads of this discussion. My query has been whether
liberalism can explain and justify tolerating non-liberal cultures. In raising
this question, I have assumed that liberalism can explain and justify
tolerating liberal cultures, though I have not argued for this position; nor do
I think that the answer is transparent. Liberalism can explain and justify
liberal cultures engaging in dialogue and conversation, but it does not follow
that every liberal culture will tolerate every other liberal culture. In some
cases, we can imagine two cultures, both committed to the deliberative
attitude, disagreeing, even stridently, over the different substantive values
each embraces. We can imagine, in the limiting case, the differences being so
stark that these liberal cultures turn to war to resolve the conflict. However,
such conflict rarely occurs.
n170 Typically, since both cultures embrace the deliberative attitude, each should
appreciate, or at least respect, the commitments of the deliberative process.
Of course, the result might be different in circumstances in which the material
conditions of each culture are so vastly different as to generate radically
different substantive choices. Given similar circumstances, the deliberative
attitude should not generate vastly different substantive values.
The real question is, of course, the possibility of liberalism explaining and
justifying the toleration of non-liberal cultures. I
[*1325] have argued that this question can only be resolved after appreciating the
distinction between deliberative and dedicated cultural constructs. Liberalism
embraces deliberative constructs. The more liberal the culture, the more
comprehensive its application of the deliberative attitude as a strategy for
resolving conflicts and for cultural change. Since a deliberative construct is
at the heart of both liberalism's theory of the right and its theory of the
good, liberalism cannot explain and justify tolerating dedicated cultures in
the sense of appreciating or respecting their values. It can, however, as any
theory can, explain and justify tolerating dedicated cultures in the modus
vivendi sense. Consequently, we must rethink liberalism's compatibility with
multicultural constitutionalism both in domestic contexts and in foreign
n171 At best, liberalism can justify multicultural constitutionalism as an
accommodation or compromise. At worst, liberalism is incompatible with
dedicated cultures because its commitment to the deliberative attitude inclines
it toward justifying dedicated cultures only in deliberative terms. This
creates a tendency to interpret and justify dedicated cultures in terms not
shared by the members of the given culture, resulting in distortion of the
culture and condescension towards it members. When tolerance is unlikely,
liberalism is inclined towards reforming or eliminating dedicated cultures in
its drive to become the culture of cultures.
n1 The clash between liberalism and multiculturalism promises to define this
battlefield well into the twenty-first century. Liberal political theory
differs from non-liberal theories by insisting on a sharp distinction between
the public and the private, or more specifically, between the political and the
non-political. According to this conception of liberalism, politics should be
limited in order to create an arena in which individual liberty can flourish.
Multiculturalism recognizes the existence of a plurality of equally plausible
cultural values. At first glance, liberalism and multiculturalism seem to be
compatible because liberalism's non-political domain appears to be ready-made
for accommodating a plurality of different cultural commitments. Problems
arise, however, when a minority culture's deep structure is incompatible with
liberalism's methods of resolving cultural conflicts. For example, liberalism
often conflicts with religions holding non-deliberative values. Any religious
culture based on faith has a deep structure incompatible with liberalism.
n2 The role of liberal constitutionalism as a model for emerging democracies is
complex and contestable with no guarantee of yielding the same results in
different cultural contexts. For example, rights might be a component of
liberal constitutionalism in some cultures while not in others. See Mark
Tushnet, An Essay on Rights,
62 Tex. L. Rev. 1363, 1382 (1984) (arguing that if critiques of law are culture-bound,
"there is nothing odd about saying that rights in Poland are a good thing, while
rights in the United States are not. They are, after all, different cultures.").
n3 This question involves at least three additional questions: First, how rich is
liberalism's conception of tolerance? Second, in what sense does liberalism
appreciate or respect alternative cultures? Lastly, what ontological and
political commitments follow from the concept of a cultural or group right?
This last issue focuses on whether the basic normative concepts of a political
theory, such as rights, can apply to groups the same way that it does to
individuals. See Robert Justin Lipkin, In Defense of Outlaws: Liberalism and
The Role of Reasonableness, Public Reason, and Tolerance in Multicultural
Constitutionalism 45 DePaul L. Rev. (Forthcoming 1996). The controversy over
cultural rights implicates the controversy between communitarianism and
liberalism. See Communitarianism and Individualism (Shlomo Avineri
& Avner deShalit eds., 1992); see also Amy Gutmann, Communitarian Critics of
Liberalism, 14 Phil.
& Pub. Aff. 308 (1985).
n4 Liberal multiculturalism attempts to resolve the problems of multiculturalism
by appealing to autonomy, rationality, equality, and other distinctly liberal
values. In a given society, both majority and minority cultures might reflect
these values albeit in different ways. If so, the minority culture represents
an alternative liberal culture. On the other hand, a minority culture might be
a non-liberal culture. Consequently, multiculturalism can be understood in a
stronger and weaker sense. The weak sense urges responsiveness and sensitivity
to other deliberative cultures. The strong sense counsels toleration of
n5 Except where the context indicates otherwise, I use
"multicultural constitutionalism" interchangeably. There are useful distinctions between these terms as well as
between the terms multiculturalism, multi-national, and multi-ethnic. For an
interesting discussion of these distinctions in the context of cultural
pluralism, see Will Kymlicka, Multicultural Citizenship: A Theory of Minority
Rights 10-26 (1995).
n6 It can be argued that the American experience was born out of a clash of
cultures, and the historical record does not portray the current dominant
culture in an excessively favorable light. Recall the horrors of slavery,
sexism, and the treatment of Native Americans.
One can question the idea of a
"dominant" culture. Instead, it can be argued that the dominant culture was actually a
compilation of different cultures. Nevertheless, the notion of a
"dominant" culture retains explanatory value. Today the dominant culture is threatened by
an avalanche of disparate cultures, or so the defenders of the dominant culture
n7 Multicultural issues arise in the context of the
"culture wars" which seek to determine the future direction of American society concerning
such issues as affirmative action, political correctness and the appropriate
canon in education. See J. Davison, Culture Wars (1992); see also Robert Justin
Lipkin, Pragmatism, Cultural Criticism, and The Idea of the Postmodern
University, in An Ethical Education: Community and Diversity in the
Multicultural University 49 (M.N.S. Sellers ed., 1994). The critical question
for American liberalism is whether it can integrate alien cultures without
n8 Multiculturalism can be understood in at least one of two ways. The first
conception argues that cultural factors must be included in political
justification because these factors represent the values of individuals. This
instrumental and reductionist conception of multiculturalism is compatible with
a liberal justification of multicultural values. See, e.g., Will Kymlicka,
Liberalism, Community and Culture 182-205 (1989). The second conception of
multiculturalism regards cultures as intrinsically valuable, arguing, at least
in principle, that in the context of justification cultural factors are morally
and ontologically basic (along with individualistic factors). Of course, it is
not obvious what such a view involves.
n9 The Canadian federation is an attempt constitutionally to recognize two
different cultural groups: English and French. Recent events in Canadian
constitutional affairs should make one less than sanguine in estimating
Canada's chance to remain unified. See William R. Lederman, Canadian
Constitutional Amending Procedures: 1867-1982,
32 Am. J. Comp. L. 339, 346 (1984). For an interesting philosophical treatment of the argument for secession, see
Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter
to Lithuania and Quebec (1991). Last October, separatists were narrowly
defeated in their attempt to create an independent Quebec.
n10 Bruce Ackerman enthusiastically believes that
political liberalism has a good chance to bring about the best future for humankind. See Bruce
Ackerman, The Future of Liberal Revolution (1991); Bruce Ackerman,
Political Liberalisms, 91 J. Phil. 364 (1994). It is not obvious that Ackerman's optimism can survive
the objection that liberal tolerance founders on the distinction between
deliberative and dedicated cultures.
n11 The culture defense insists that a person should not be convicted of a crime,
or that the sentence should be at least mitigated, if her former culture
required or encouraged the conduct in question. See Nilda Rimonte, A Question
of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian
Community and the Cultural Defense,
43 Stan. L. Rev. 1311 (1991); Note, The Cultural Defense in the Criminal Law,
99 Harv. L. Rev. 1293 (1986).
n12 Canada provides a useful case study of multicultural conflict in a liberal
democracy. Canada is constitutionally a bilingual country with both English and
French recognized as the two official languages of the Canadian federation.
Canada has faced problems of liberal multiculturalism and group democracy from
its inception, perhaps because the Quebecquois and other Canadians do not share
a univocal conception of self-government. Charles Taylor, Shared and Divergent
Values, in Options for a New Canada 53 (Ronald L. Watts
& Douglas M. Brown eds., 1991).
At one point Quebec passed a law that forbade commercial signs from being
written in any language other than French. Before it was repealed the Canadian
Supreme Court held that Quebec was warranted in adopting the measure to assure
"predominance of the French language" in Quebec. Ford v. Quebec, 2 S.C.R. 712, 778 (1988), quoted in P. Monahan,
Meech Lake: The Inside Story (1991).
n13 Secession became an ominous possibility in Canada during the late 1970s.
Lederman, supra note 9, at 346 ("The urgency about basic constitutional matters in the later 1970s arose from
the fact that the Parti Quebecquois achieved power as the Provincial Government
of Quebec in 1976, with the declared objective of eventually bringing about the
secession of Quebec from the Canadian Federal Union."). In rare circumstances, a right to secede may be justified on the grounds of
preserving one's culture. Consequently, it can be argued that Quebec is
justified in seceding if the perpetuation of Francophone culture requires state
protection. See Buchanan, supra note 9, at 63-64, 153, 161. But see Will
Kymlicka, Book Review, 20 Pol. Theory 527, 531-32 (1992) (charging that
Buchanan's argument implies unjustifiably that the burden of proof concerning
the propriety of succession falls on the secessionists).
The Meech Lake Accord was a recent attempt to save the Canadian Federal Union
from disintegration essentially by recognizing that
"Quebec constitutes within Canada a distinct society." Peter W. Hogg, Meech Lake Constitutional Accord Annotated section (2)(1)(b)
(1988). Similarly, the Charlottetown Accord gave Native Canadians a greater
role in self-government. The Charlottetown Accord, at least indirectly, also
addresses the problem of group democracy as it pertains to other groups of
Canadians. See Errol P. Mendes, The Charlottestown Accord: Sinking Again into
the Quagmire of Conflicting Visions, Groups, Underinclusion and Death by
Referendum, 2 N.J.C.L. 379 (1991). Both accords failed ratification.
Kiryas Joel v. Grumet, 114 S. Ct. 2481 (1994) (invalidating the creation of a school district based on religious criteria).
Church of the Lukumi Babalu Aye v. City of Hialeah, 113 S. Ct. 2217 (1993) (invalidating a law designed to prohibit animal sacrifice).
n16 One great American religion, Mormonism, altered its fundamental principles
partly as a result of the hostility toward the practice of polygamy. Today, in
the Southwest, thousands of descendants of Mormons still practice polygamy as
part of their religion. One can understand, perhaps, why Judaism, Catholicism
and Protestantism forbid polygamy. Can it seriously be argued today, however,
that liberalism need not tolerate polygamy as a fundamental part of some
people's conception of the good? Can it seriously be argued that polygamy is
"in violation of social duties or subversive of good order."
Reynolds v. United States, 98 U.S. 145, 164 (1879). Which good order? Gender equality places constraints on polygamy, that is,
society must permit both polygyny and polyandry. But what possible argument in
terms of autonomy, rationality and equality require monogamy? To be sure, a
polygamous society might differ from or be more complex than ours, but for
liberalism, neither reason is conclusive. Liberalism should foster ingenuity
and experimentation in accommodating as many conceptions of the good as
possible. This is untrue in American society, where marriage rights are skewed
in an illiberal fashion. See Will Kymlicka, Rethinking the Family, 20 Phil.
& Pub. Aff. 77, 92 n.1 (1991).
n17 Will Kymlicka argues that liberalism can accommodate the cultural values
concerning land of indigenous people--because in some cases choice requires
special constitutional protection of minority cultures. Kymlicka, supra note 8.
n18 My use of liberalism assumes that virtually all political players on the
American scene--whether conservative, centrist, or radical--are liberals. As
Alasdair MacIntyre asserts:
"The contemporary debates within modern political systems are almost exclusively
between conservative liberals, liberal liberals, and radical liberals." Alasdair MacIntyre, Whose Justice? Whose Rationality? 392 (1988); see Larry
& Maimon Schwarzschild, Liberalism, Neutrality, and Equality of Welfare vs.
Equal Resources, 16 Phil.
& Pub. Aff. 85, 86 (1987) (distinguishing between right-liberals and
n19 Sir Isaiah Berlin provides a framework for characterizing these familiar
distinctions in his description of the political battles of the eighteenth and
nineteenth century. Sir Isaiah writes:
On one side stood the supporters of tradition, of political and social
hierarchies, whether 'natural' or hallowed by history, or belief in, and
obedience to, divine, or at any rate transcendent authority. These were men who
believed that the operations of untrammeled reason must be kept within bounds
and should, above all, be prevented from questioning the validity of the laws
and customs of ancient ways of life--those impalpable and analyzable bonds that
hold society together and alone preserve the moral healthy of states and
individuals. This is the faith in the 'integral' community which critical
examination by skeptical intellectuals, using rationalist methods, can only
discredit in theory and undermine, and in the end disintegrate, in practice. On
the other side stood the unswerving champions of reason, who rejected faith in
tradition, intuition, transcendent sources of authority as mere smoke-screens
to justify irrationality, ignorance, bias, fear of the truth in the matters of
theory, and stupidity, injustice, oppression. . . .
Isaiah Berlin, The Crooked Timber of Humanity 254-55 (1991).
n20 I examine the possibilities of a pragmatic conception of multicultural
constitutionalism in Lipkin, supra note 3.
n21 This ought not to be viewed as a foregone conclusion. A liberal culture might
find another liberal culture intolerable if the latter's substantive values are
n22 In distinguishing different kinds of tolerance, I do not explore the
differences in the meaning of
"toleration." Throughout the article, I use these terms interchangeably.
n23 A good example of this is
Rawls' attempt to show how liberalism can tolerate non-liberal, well-ordered
Rawls, The Law of Peoples, in On Human Rights 41 (Stephen Shute
& Susan Hurley eds., 1993). I critically examine
Rawls' argument in Lipkin, supra note 3.
n24 See Michael W. Doyle, Kant, Liberal Legacies, and Foreign Affairs, Part I, 12
& Pub. Aff. 205, 213 (1983) ("Even though liberal states have become involved in numerous wars with
non-liberal states, constitutionally secure liberal states have yet to engage
in war with one another.") (emphasis in original); see also Michael W. Doyle, Kant, Liberal Legacies,
and Foreign Affairs, Part II, 12 Phil.
& Pub. Aff. 323, 337 (1993) ("Liberalism does appear to exacerbate intervention against weak nonliberal
societies and hostility against powerful non-liberal societies.").
n25 Liberals tend to characterize liberalism in terms of rationality, autonomy,
and equality. These values typically depend upon practical reasoning and
deliberation as the primary forms of cultural inquiry.
n26 Liberalism can be regarded as a comprehensive theory of society, not just a
theory of politics. As a theory of society, it includes a political theory, a
legal theory, a moral theory and a theory of moral motivation. Each theory is
grounded in and connected to one another through the deliberative attitude.
n27 See Ronald Dworkin, Liberalism, in Public
& Private Morality 113, 116-17 n.1 (Stuart Hampshire ed., 1978).
n28 The dilemma of liberal toleration is expressed by what Jean Hampton calls the
"paradox of liberalism." Jean Hampton, Political Philosophy and Metaphysics, 99 Ethics 791, 803 (1983).
This paradox focuses on the problem of integrating tolerance and partiality
into one political conception. At first glance,
"it would seem that a liberal, to be consistent, would have to tolerate even
those who would challenge (and use violence to attack) that principle, so that,
to paraphrase Robert Frost, the liberal could not take his own side in this
argument." Id. (citing Nagel, Moral Conflicts and Political Legitimacy, 16 Phil.
& Pub. Aff. 215 (1987)).
n29 Stanley Fish, Liberalism Doesn't Exist, in There's No Such Thing As Free
Speech and It's a Good Thing Too 135, 138 (1994).
n30 Thus, this article casts doubt on liberalism's genuine capacity to tolerate
diversity. For some liberals, skepticism concerning moral truth or proof
underlies liberalism's toleration of diversity, not an appreciation and respect
for diverse ways of human flourishing. This has special force in the context of
international relations. As Charles Beitz puts it:
"The most that can be said about the relations among communities is that they
should be based on a principle of tolerance of diversity--not because diversity
has some special, non-local, value but because there can be no basis for
imposing any other requirements." Charles Beitz, Sovereignty and Morality, in Political theory Today 236, 251
(1991). But doesn't this just mean that there can be no other liberal basis for
tolerating diversity? Granting this does not preclude other non-liberal
conceptions of diversity. It should be noted that early liberal proponents of
toleration based their arguments in religion. John Locke, A Letter on
n31 This is not necessarily the manner in which loyal members of a dedicated
culture would describe their culture. In fact, it is likely that they would
regard their culture as that constituting the supreme truth or highest good.
From our external viewpoint, we may not agree to such characterizations.
Nevertheless, we can say that dedicated cultures embrace the value of
predictability in resolving cultural and moral conflicts and therefore are
committed to some institutional device for putting an end to debate, if they
permit debate at all. The values of constancy and closure drive certain
conceptions of politics and law. Burkean incrementalism is an example of the
former, while positivism illustrates the latter.
n32 Saying that liberalism cannot explain and justify liberal toleration of
nonliberal cultures means that liberalism cannot tolerate non-liberal systems
of norms and values.
n33 Both practical reasoning and practical autonomy are central to the ideal of
n34 I do not wish to stress the term
"system" in foundationalist or rationalist terms. A cultural system is a body of
beliefs and values partially integrated, partially coherent, but having a
certain character and some experiential cohesion.
n35 Typically, universal rationality in politics claims
"a privileged, or an extrahistorical and procedurally guaranteed, access to the
content of the overall social good. . . ." John Dunn, Reconceiving the Content and Character of Modern Political
Community, in Interpreting Political Responsibility 210 (1990).
n36 MacIntyre, supra note 18, at 6 (arguing that the Enlightenment strove
"to provide for debate in the public realm standards and methods of rational
justification by which alternative courses of action in every sphere of life
could be judged just or unjust, rational or irrational, enlightened or
unenlightened."). For an instructive review of MacIntyre's book, see Brian Barry, The Light
that Failed, 100 Ethics 160 (1989) (book review). See also Julia Annas,
MacIntyre on Traditions, 18 Phil.
& Pub. Aff. 388 (1989) (book review).
n37 This conception of the role of universal rationality is my characterization of
the relevance of such philosophers as Plato and Kant to cultural inquiry.
n38 Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (1994).
n39 Beitz, supra note 30, at 250-51.
n40 In the context of discovery, rationality is certainly local, although
proponents of universal rationality rarely identify it as such. What then
warrants universal values in the context of justification? Unless its
proponents can demonstrate a conception of rational justification free of
cultural factors, their hope of establishing universal rationality is
misguided. No philosophical attempt to do this has ever been successful. See
Robert Justin Lipkin, Beyond Skepticism, Foundationalism and the New Fuzziness:
The Role of Wide Reflective Equilibrium in Legal Theory,
75 Cornell L. Rev. 811 (1990) (arguing against the possibility of conceptions like universal rationality).
Universal rationality is not a ground for a novel cultural proposition. Rather,
it is an aspiration, a proposal to the reflective cultural community or
communities to consider, evaluate and endorse a new cultural imperative as
having a wide scope.
n41 For a discussion of foundationalism, and antifoundationalism, see Robert
Justin Lipkin, Can American Constitutional Law Be Postmodern?,
42 Buff. L. Rev. 317 (1994).
n42 Kant thought differently. Immanuel Kant, On A Supposed Right to Tell Lies from
Benevolent Motives, in Kant's Critique of Practical Reason and Other Works on
the Theory of Ethics 361 (T. Abbott, trans., 6th ed. 1967) (arguing against
Benjamin Constant's view permitting a lie when the recipient of the information
has no right to the truth). But see Christine Korsgaard, The Right to Lie: Kant
on Dealing with Evil, 15 Phil.
& Pub. Aff. 325, 339 (1986) (arguing that lying is permissible in certain
n43 The reliability of a judgment includes the judgment's capacity for overcoming
objections, its capacity for supporting and being supported by other judgments,
as well as its depth or entrenchment in a cultural system.
n44 Deliberative systems can be universalist or particularist depending upon the
conception of deliberation under discussion. You can, of course, believe that
deliberation applies to human culture generally and thus bridges the gap
between the universal and the particular. The deliberative attitude takes this
last approach. The deliberative attitude seeks universal acceptance for a
proposed cultural imperative on pragmatic grounds, recognizing that dissensus
is endemic to cultural conflict and contestability will never be overcome
One problem with this last approach is that a human culture consisting of all
existent cultures is likely to be incoherent or, more specifically, is likely
to have at least pockets of incoherence that might resist reconciliation. On
the other hand, such pockets of incoherence provide the subject matter for
creative redescriptions of these problems with the possibility of rectifying
the incoherence and providing a more elegant and comprehensive description of
human culture. Freedom and equality were once (are still?) such redescriptions.
n45 Otto Neurath, Protocol Sentences, in Logical Positivism 201 (A. J. Ayer ed.,
1959) ("We are like sailors who must rebuild their ship on the open sea, never able to
dismantle it in a dry-dock and to reconstruct it out there out of the best
n46 I do not mean to suggest that one can never abandon one's local culture,
though doing so may present psychological obstacles. I suppose a Westerner can
abandon Western culture and become a Buddhist monk, but one cannot abandon
every actual human culture for a newly designed culture. Cultures must be
lived, and abandoning one's culture typically involves reweaving one's
conceptual scheme incrementally in terms of the newly adopted cultural scheme.
However, in revolutionary cultural change,
"a once-strong, indeed culturally dominant, mode of thought can collapse almost
literally overnight." Sanford Levinson, Constitutional Faith 52 (1988). But it is difficult to
imagine rejecting an entire culture in one instance for another culture. See
Richard Rorty, Philosophy and the Mirror of Nature (1979) (adapting Thomas
Kuhn's distinction between revolutionary and normal science to the context of
discourse); see also Thomas Kuhn, The Structure of Scientific Revolutions
(1970). For a redeployment of the Kuhn-Rorty distinction between revolutionary
and normal inquiry, see Lipkin, supra note 39; Robert Justin Lipkin,
Indeterminacy, Justification and Truth in Constitutional Theory,
60 Fordham L. Rev. 595 (1992); Robert Justin Lipkin, The Anatomy of Constitutional Revolutions,
68 Neb. L. Rev. 701 (1989); Robert Justin Lipkin, Conventionalism, Pragmatism, and Constitutional
21 U.C. Davis L. Rev. 645 (1988). Each of these articles represent statements and refinements of the theory of
constitutional revolutions, a theory that distinguishes between normal and
n47 Frederick Schauer helpfully provides an account of some of the problems truth
and justification pose for constitutional deliberation that can be extended to
deliberation generally. Frederick Schauer, Deliberating About Deliberation,
90 Mich. L. Rev. 1187 (1992).
n48 See Ludwig Wittgenstein, Philosophical Investigations sections 241 (88e)
(1953); see also Robert Justin Lipkin, Freewill, Responsibility and the Promise
of Forensic Psychiatry, 13 Int'l J.L.
& Psychiatry 331 (1991).
n49 Some forms of deliberative reasoning invoke the concepts of mutual respect,
provisional solutions, empathy, and reasonableness. See Amy Gutmann, The
Challenge of Multiculturalism in Political Ethics, 22 Phil.
& Pub. Aff. 171, 199 (1993). According to Gutmann,
"deliberation encourages people with conflicting perspective to understand each
other's point of view, to minimize moral disagreements, and to search for
common ground. . . ." Id. at 199. It achieves these goals by first
"opening politics up to a range of reasonable disagreements that is restricted
by less deliberative politics." Id. This might be true. But before endorsing it, we must have a clearer idea
of what counts as reasonable disagreement. As Gutmann herself concedes,
"what counts as reasonable or unreasonable for matters of social justice cannot
be specified independently of social understandings." Id. at 201. Gutmann goes on to say that reasonableness
"with regard to matters of social justice excludes claims that are closed in
principle to the most adequate methods of social inquiry." Id. Thus, publicly accessible claims, for example, about the importance of
personal liberty render judgments more reasonable than claims about God's will.
But how does one determine whether publicly accessible claims or God's will
"the most adequate methods of inquiry?" Id. Either choice can be defended only by begging the question.
n50 See Ronald Dworkin, Law's Empire 208-15 (1986) (exploring the differences
between bare communities and full communities).
n51 William Galston invokes a distinction between two kinds of liberalism:
autonomy and diversity. William Galston, Two Concepts of Liberalism, 105 Ethics
516 (1995). Galston's distinction between these two types of liberalism should
be distinguished from my distinction between deliberative and dedicated
n52 A comprehensive treatment of deliberative and dedicated cultures would include
an examination of the possibility of describing ideal deliberative cultures and
ideal dedicated cultures. In the worst case scenario, it might turn out that
all cultures require traditions that mimic dedicated cultures. Rorty's remarks
on democracy lend themselves to such an interpretation when he insists that
democracy is important because it is
"so basic to one's identity that one wouldn't know who one was if one stopped
cherishing it." Towards A Liberal Utopia: An Interview with Richard Rorty, Times Literary
Supplement, June 24, 1994, at 14. Thus, democracy and even perhaps deliberative
democracy are based on a dedicated paradigm. If so, the heart of the
distinction between deliberative and dedicated cultures can still be preserved
by distinguishing between deliberative traditions and non-deliberative
traditions within dedicated cultures.
n53 Of course, each of these activities can be refrained from in certain
circumstances. To say that these are biologically given means only that, in
these circumstances, a price must be paid to avoid engaging in these
activities, such as death in the case of not eating. Consequently, my remarks
concerning biological givens should not be understood as endorsing Social
Darwinism or any other conservative anthropological perspective on the
relationship between biology and social organization.
Rawls, A Theory of Justice 62 (1971).
n55 It could be argued that the status quo, like everything else, must change in
order to perpetuate itself, or, as Stanley Fish observed,
"the maintenance of the status quo is always and simultaneously its alteration[.]" See Adam Begely, Souped-Up Scholar, N.Y. Times Mag., May 3, 1992, at 38, 52.
We can extend this point to the idea of a tradition. Traditions must change to
stay the same, since a
"tradition is not simply a permanent precondition; rather, we produce it
ourselves inasmuch as we understand, participate in the evolution of tradition,
and hence further determine it ourselves." Hans-Georg Gadamer, Truth and Method 293 (1989). In constitutional
the traditions to which we look for guidance . . . are traditions that we
create, and recreate upon each engagement. Traditions constrain us, certainly,
both in the sense that they are deeply internalized and in the sense that we
pledge to follow their external signs. But their meanings are too unstable for
those signs to be definitive, and we--individually and collectively--are too
conflicted for the internal constraints to be dispositive.
Robert L. Hayman, Jr., The Color of Tradition: Critical Race Theory and
Postmodern Constitutional Traditionalism,
30 Harv. C.R.-C.L. L. Rev. 57, 78 (1995).
n56 Dedicated cultures face the following paradox: if they design a mechanism to
prevent or control significant change, it probably is a deliberative mechanism;
however, if it is a deliberative mechanism, it is based on reasons that, at
least relative to that culture's aspirations, are good ones. In other words, a
dedicated culture adopts the mechanism to control change because it believes
that significant change is dangerous or counter-productive. Such a reason is
usually a deliberative reason, though it might be a bad deliberative reason.
Consequently, it is paradoxical for dedicated cultures to deliberatively adopt
a mechanism to prevent cultural change. The air of paradox is not reduced by
the fact that at times a dedicated culture's decision to control change may be
characterized as nondeliberative.
n57 I owe this point to Erin Daly.
n58 When dedicated and deliberative cultures live in close proximity and share the
same resources, conflict is likely. Consider the contemporary example of the
state of New York intentionally drawing the boundaries of the Village of Kiryas
Joel so that the Satmar Hasidim could run a public school district exclusively.
Kiryas Joel v. Grumet, 114 S. Ct. 2481 (1994).
n59 Some Native American Indian cultures also appear to be dedicated. However, as
in the case of the Amish and the Hasidim, characterizing Native American
cultures as dedicated (or deliberative) requires greater substantiation than
merely saying it is so. The point here is not only that generalization requires
support, but more importantly, generalizations concerning racial, sexual,
ethnic, and cultural attributions should be carefully scrutinized to ensure
that they are not motivated by cultural antagonism or mere lack of familiarity
with the character of a particular culture. I thank Bob Hayman for helping me
to appreciate the importance of this point.
n60 Generally, dedicated cultures do not relish novel ways to solve problems, nor
do they attempt to validate the tenets of their culture by seeking
disconfirming evidence. Dedicated cultures do not consider personal autonomy as
an overriding value driving and guiding cultural change. By contrast,
deliberative cultures seek disconfirming evidence and regard autonomy as a
central cultural value. This illustrates that some features of the dominant
American culture are at most deliberative in name only. A once deliberative
form of inquiry can become a dedicated value when it ceases to insist on
challenging its own form of rationality and when its commitment to autonomy
wanes. See Levinson, supra note 46 at 52 (arguing that American constitutional
culture represents a civic religion based not on reason but faith).
n61 See Lipkin, supra note 41.
n62 In this sense, the deliberative attitude replaces or is a counterpart to the
traditional goal of universality, though not a universality that will satisfy
foundationalists or absolutists. To say that a deliberative form of inquiry is
always open to confutation means that it ultimately seeks non-idiosyncratic
reasons for its conclusions. At times this might entail seeking non-culturally
specific reasons, meaning that the source of the reason is irrelevant, whether
it derives from our culture or others. What matters is the force of the reason
in explaining or illuminating the problem we want resolved. And it is not
obvious that force requires culturally specific motivation.
n63 The term
"cultural inquiry" refers to those concepts, distinctions, and principles of inference that
enable us to make sense of social life. For example, the distinction between
"nurture" helps classify human interests into two categories: those interests that are
biologically given and those that are a product of social life and culture.
n64 I offer these components as part of deliberativism as the most basic form of
strategy employed by the individual. This individual ideal, however, expresses
itself in the collectivist, political ideal of democracy.
Joshua Cohen, Deliberation and Democratic Legitimacy, in The Good Polity 17, 21, 25 (Alan
& Philip Pettit eds., 1989).
n65 Dedicated reasoning involves the standard cognitive capacities of
identification, individuating, deductive and inductive reasoning, and so forth.
If a dedicated rule admonishes people to obey the word of the Holy Person,
reasoning is required to know who the Holy Person is and what counts as her
n66 For alternative accounts of deliberative autonomy, see Larry A. Alexander,
Trouble on Track Two: Incidental Regulations of Speech and Free Speech Theory,
44 Hastings L.J. 921 (1993); Richard H. Fallon, Jr., Two Senses of Autonomy,
46 Stan. L. Rev. 875 (1994); and James E. Fleming, Constructing the Substantive Constitution,
72 Tex. L. Rev. 211 (1993).
n67 This does not necessarily imply that deliberative cultures are
n68 Autonomy-oriented values apply to both persons and to states of affairs. Cf.
S. I. Benn, Person and Values: Reasons in Conflict and Moral Disagreement, 95
Ethics 20, 24-27 (1984) (distinguishing between person-centered reasons and
n69 Id. at 36.
n70 Are rationality and autonomy merely dedicated values of
"deliberative" cultures? How much of their meaning is open to inquiry and reconsideration? In
ideal circumstances, their meaning is always open to inquiry and
reconsideration. In practice, some deliberative cultures allow the deliberative
attitude to atrophy or to become mechanical. In the limiting cases, the
deliberative attitude can become dedicated, or rather, it can be held in a
non-deliberative fashion. This, however, is a failing of the particular
culture, not the concept of a well functioning deliberative culture. I am
grateful to Bob Hayman for assisting me in seeing the significance of this
n71 Similarly, it can be argued that the distinction between freedom and custom is
specious because custom is a necessary ingredient of autonomy. On this view,
freedom cannot exist in a vacuum. Society cannot generate institutions that are
free without custom, and custom often requires freedom for its generation. As
Roger Scruton observes:
I have given a few, partly empirical, partly a priori, reasons for thinking
that custom and its associated forms of conduct are necessary for the formation
of the 'primary' desires that form the basis of our autonomy. It is only such
desires that political freedom should be concerned to foster, since it is only
then that freedom can be considered a value. Custom is not, then, the enemy of
freedom, but it is a necessary precondition. The business of government is not
the generation of abstract civil liberty, but the founding of institutions that
make liberty possible.
Roger Scruton, Freedom and Custom, in Anti-Theory in Ethics and Moral
Conservativism 205, para. 22 (S.G. Clarke
& E. Simpson eds., 1989). No culture-free liberty or pure liberty exists, and
that if it did exist it would not be of any value. Pure liberty
"would be situationless." Charles Taylor, Hegel and Modern Society 157 (1979). Consider:
And by the same token it would be empty. Complete freedom would be a void in
which nothing would be worth doing, nothing would deserve to count for
anything. The self which has arrived at freedom by setting aside all external
obstacles and impingements is characterless, and hence without definite
purposes, however much this is hidden by such seemingly positive terms as
'rationality' or 'creativity.' These are ultimately quite indeterminate as
criteria for human action or modes of life. They cannot specify any content to
our action outside of a situation which sets goals for us, which thus imparts a
shape to rationality and provides an inspiration for creativity.
Id. Nor is it the case that deliberative autonomy has no unchosen conditions.
See Lipkin, supra note 48.
n72 Michael Walzer, The Moral Standing of States, 9 Phil.
& Pub. Aff. 209, 225 (1980).
n73 At this point, the question of minority repression becomes urgently relevant.
n74 We can see how even dedicated cultures can be legitimate in a liberal sense of
the term when its members consent to its authority. See A. John Simmons, Moral
Principles and Political Obligations 71 (1979) (describing a legitimate
government as one that has authority over its citizens through their consent).
n75 This raises the question of just what American democracy means. Does it mean
mere majoritarianism together with a few explicit constraints as Robert Bork
contends? Robert Bork, The Tempting of America: The Political Seduction of the
Law (1990). Or is the American conception of democracy deliberative democracy?
Cass R. Sunstein, The Partial Constitution (1993). For a critical examination
of Sunstein's important work, see Robert Justin Lipkin, The Quest for the
Common Good: Neutrality and Deliberative Democracy in Sunstein's Conception of
26 Conn. L. Rev. 1039 (1994).
n76 Simmons, supra note 74, at 70.
n77 Not all values are autonomy-oriented. But in deliberative cultures the
non-autonomy-oriented values must always be subject to deliberative evaluation
to determine which values maximize autonomy and choice. If some values are
neutral regarding this process of maximization, deliberative cultures have the
discretion to embrace those values or not.
"One creates values, generates, through one's developing commitments and
pursuits, reasons which transcend the reasons one had for undertaking one's
commitments and pursuits. In that way a person's life is (in part) of his own
making. It is a normative creation, a creation of new values and reasons." Joseph Raz, The Morality of Freedom 387 (1986).
n79 Amy Gutmann, The Disharmony of Democracy, in 35 Nomos: Democratic Community
126, 140 (John W. Chapman and Ian Shapiro eds., 1993) (arguing for deliberative
democracy); see also David Miller, Deliberative Democracy and Social Choice, 40
Pol. Stud. 54 (1992) (arguing in favor of a conception of deliberative
democracy similar to Gutmann's); see generally Theodore J. Lowi, The End of
Liberalism (1969) (arguing against interest-group liberalism). See Ian Shapiro,
Political Criticism 282 (1990) (arguing that democracy
"should be thought of as that system of structured instabilities that best
prevents the ossification of arbitrary entitlements and undermines entrenched
power without collapsing into anarchial chaos.").
n80 Gutmann, supra note 79, at 141.
n81 Id. at 142.
n82 Adopting the deliberative attitude entails wanting to justify yourself to
others, especially when your adversaries reject the deliberative attitude. See
Thomas M. Scanlon, Contractualism and Utilitarianism, in Utilitarianism and
Beyond 103, 116 (Amartya Sen
& Bernard Williams eds., 1982).
n83 These conditions can be metaphysical or political. Although there have been
formidable attempts to determine the metaphysical conditions, it is not obvious
that any have succeeded. I have in mind Kant's attempt in The Groundwork for a
Metaphysics of Morals and both the Critique of Pure Reason and the Critique of
Practical Reason. For a challenging contemporary attempt, see Thomas Nagel, The
Possibility of Altruism (1970).
n84 For a more comprehensive statement of how autonomy includes unchosen
conditions, see Lipkin, supra note 48. See also, Edward Sankowski, Blame and
Autonomy, 29 Amer. Phil. Q. 291 (1992).
n85 In fact, deliberative cultures can rely on the collective natural and cultural
history of humankind provided that this history is subject to cultural
interpretation. See Robert Justin Lipkin, Pragmatism--The Unfinished
Revolution: Doctrinaire and Reflective Pragmatism in Rorty's Social Thought,
67 Tul. L. Rev. 1561 (1993).
n86 Gutmann, supra note 69, at 145.
n87 In contemporary debates, such a view is championed by Robert Bork in The
Tempting of America. Bork supra note 75. Permitting the majority will to
prevail simply because it is the will of the majority is not ruled out a priori
by the deliberative attitude. However, since the deliberative attitude seeks
reasons for individual and collective decisions, the majority must always be
prepared to justify its decisions in terms other than simple majoritarianism.
Bork's reply doubtlessly would be that requiring the majority to give reasons
for its preferences is pointless and redundant. Who decides whether the
majority's reasons are good reasons? In the absence of explicit constraints,
any institution responsible for evaluating the majority's reasons other than
the majoritarian branches of government is countermajoritarian and therefore
unacceptable. The deliberative process, however, embraces additional and
independent deliberation--say by the Supreme Court--without being troubled by
skeptical questions about who is to decide whether the majority's reasons are
good ones. See generally 1 Bruce Ackerman, We The People: Foundations (1991). I
critically evaluate Ackerman's intriguing conception of constitutional
democracy in Lipkin, supra note 41.
n88 But see Amy Gutmann, Democratic Politics and Ethics, in From the Twilight of
Probability 43, 49 (William R. Shea
& Antonio Spadafora eds., 1992) (arguing that
"democracy is part of what it means to be morally autonomous"). Democracy might be a necessary condition of moral autonomy, but it is not a
sufficient condition. A culture might permit democracy without the deliberative
attitude, and therefore, not encourage moral autonomy.
n89 For an interesting argument that the United States Constitution ought to
include a principle of
"equal-dollars-per-voter," see Edward B. Foley, Equal-Dollars-PerVoter: A Constitutional Principle of
94 Colum. L. Rev. 1204 (1994).
n90 Critical re-evaluation of cultural norms should be an institutional feature of
a deliberative society. See Lipkin, supra note 7.
n91 Neither can the distinction between deliberative and dedicated cultures be
equated with the distinction between seeking reasonable solutions or
accommodations with one's adversaries, and the inclination to use force. The
concept of a deliberative culture does not entail that its members
"may never use violence, coercion or deception, or that they may never injure in
other ways. Actual human disputes often cannot be resolved without some injury
to some parties." Onora O'Neill, Reason and the Resolution of Disputes,
67 Notre Dame L. Rev. 1365, 1377 (1992).
n92 For an instructive interpretation of the establishment clause as
liberty-maximizing, see Rodney K. Smith, Establishment Clause Analysis: A
Liberty Maximizing Proposal, 4 Notre Dame J.L. Ethics
& Pub. Pol'y 463 (1990).
n93 In most instances it would be hyperbole to describe members of the Hasidim as
"remaining loyal" where that connotes a deliberative choice. Rather, the foreign evidentiary
information never even challenges their beliefs in the first place. Thus one
could object that the Hasidim exist in an open culture but is not itself open,
and thus the example fails. However, some dedicated religious societies seek
access to other cultures while remaining dedicated. Roman Catholicism is a good
example of this point.
n94 When anti-deliberative forces abound, defenders of deliberation might restrict
debate on the ground that the enemies of deliberation are poisoning public
dialogue. Put in its best light, if it had one, the anti-communist movement in
the United States illustrates this point. However, a deliberative culture must
always be open to re-examining its reasons for closing its conceptual borders,
and the anti-communism movement was not.
n95 Of course, this assumes (perhaps erroneously) that we can determine whether a
document is deliberative or dedicated merely by understanding its text without
application to actual cases--as if the text had an internal strategy for
problem solving that could be characterized as deliberative or dedicated
independently of its application to the relevant social groups.
n96 One could argue that the several states or regions have unique problems and
interests, and that the best way for these to be assured of a hearing in
deliberation is to create a branch of government that can protect these
problems and interests. In this view, a Senate representing disadvantaged
groups may be equally legitimate. See Will Kymlicka, Group Representation in
Canadian Politics, in Equity
& Community: The Charter, Interest Advocacy and Representation 61, 65 (F. Leslie
Seidle ed., 1993).
n97 Giovanna Borradori, The American Philosopher: Conversations with Quine,
Davidson, Putnam, Nozick, Danto, Rorty, Cavell, MacIntyre, and Kuhn 140
(Rosanna Crocitto trans., 1994). MacIntrye's description depicts a premodern
society, but I do not believe that is what he has in mind.
n98 Scruton, supra note 71, at 220.
n99 A person might live a mixed life, embracing dedicated values in some areas of
her life and deliberative values in others. For example, a person might adopt
dedicated values as an expression of her religious devotion and deliberative
values in her occupation as a rocket scientist. The distinction between
deliberative and dedicated concepts is not a dichotomy between people who use
deliberative values exclusively, on the one hand, and those using only
dedicated values, on the other hand. Nevertheless, unless there is a principled
way to determine when one paradigm is appropriate and the other not, this sort
of compartmentalization or bifurcation can be selfstultifying. Moreover, if
there is such a principle it must be justified deliberatively.
n100 See Kymlicka, supra note 8, at 61 (asserting that
"this vaunting of 'free individuality' will result not in the confident
affirmation and pursuit of worthy courses of action but rather an existential
uncertainty and anomie, in doubt about the very value of one's life and its
n101 Sometimes, an unintended consequence of trying to lead a deliberatively
autonomous life is becoming obsessive about the reasons--their strength, scope,
and ranking--one has for one's values and life plans. This obsession represents
the possibility of a silent pathology for many people. Of course, it is true
that the deliberative attitude does not entail such an obsession.
n102 Just as a person who single-mindedly pursues pleasure is often brought to
despair and ruin, a slavish devotion to deliberation can be similarly
debilitating. Both dangers can be prevented by devising pleasure-maximizing or
autonomy-maximizing rules as opposed to trying to determine which action
maximizes pleasure or autonomy every time one decides to act.
n103 The deliberativist might reply that closure occurs when the deliberative
attitude is threatened by continued deliberation. But when does that occur? The
deliberative attitude is also threatened by premature closure; consequently, a
deliberative personality must continually monitor her deliberative system to
determine when closure is neither premature nor overdue. Even short of
obsession, there are severe costs to this process.
A deliberativist might reply that this pathology does not indict
deliberativism per se, only its incorrect deployment. But since the problem of
determining when one reaches the limits of deliberativism is itself a
deliberative problem and indeterminate, the risk of this pathology remains.
n104 See Lipkin, supra note 40.
n105 In a similar fashion, Catherine MacKinnon has described postmodernism as
"discourse unto death." Catherine A. MacKinnon, From Practice to Theory, or What is a White Woman
4 Yale J.L. & Feminism 13 (1991) ("The postmodern version of the relation between theory and practice is discourse
n106 See Jean-Paul Sartre, Existentialism and Humanism 52 (1950) ("Man being condemned to be free carries the weight of the whole world on his
shoulders; he is responsible for the world and for himself as a way of being.").
n107 The phenomenon of a deliberative person
"converting" to a dedicated life style is not uncommon.
n108 Alasdair MacIntyre, Is Patriotism a Virtue?, in Theorizing Citizenship 209 (R.
Beiner ed., 1995).
n109 Once we demystify the modernist conception of reason which originally
generated the deliberative attitude, we begin to see the deliberative attitude
in a different light. It is a strategy for cultural inquiry that has benefits
and burdens just as dedicated systems of cultural inquiry have benefits and
burdens. Only from an Archimedean perspective can we embrace the deliberative
attitude and reject dedicated cultures in advance. Abandoning such
foundationalist devices entails rejecting the notion that deliberative systems
are always superior to dedicated systems, no matter the content of the system,
the historical era in which they exist, and the person and the community
n110 For an argument that can be redeployed in the present context as an objection
to deliberative cultures, see Michael Oakeshott, Rationalism in Politics and
Other Essays 5-42 (1991).
n111 This example assumes that the existence of God is not subject to deliberative
proof. The example fails if you believe that deliberative proof can justify a
belief in God. In that case, the identity and justification of a (religious)
cultural system may be fully deliberative.
n112 In order to deny that liberalism incorporates a conception of the good, it can
be argued that liberalism does not presuppose the deliberative attitude, and
therefore does not presuppose a conception of the good. Yet, no one can deny
that liberal justification is committed to the deliberative attitude in the
political context. If so, the deliberative attitude presupposed in political
justification is itself a conception of the good.
n113 There are two different strains of liberalism which when distinguished
represent two different kinds of liberal theory. The first emphasizes
neutrality, the other pluralism. Raz, supra note 78, at 132-33. Far from
neutral, liberal pluralism insists that the state should provide the conditions
for a multiplicity of different comprehensive conceptions of the good.
Nevertheless, liberal pluralism might be neutral with respect to each
individual conception of the good.
n114 The concept of the good refers to a person's ultimate values. A complete
answer to the question of whether liberalism contains a comprehensive
conception of the good must address these questions: First, is the deliberative
attitude an intrinsic good? In other words, is there something of value
associated with the deliberative attitude that cannot be explained by reference
to its consequences? Second, how does the deliberative attitude in political
contexts differ from the deliberative attitude as a constituent feature of the
good? Third, is it possible or desirable to adopt the deliberative attitude in
political contexts only, while simultaneously embracing a highly structured
system of dedicated norms and values in one's social life?
n115 Liberalism contains a conception of the good if any of the following are true:
(1) the liberal theory of the right presupposes a conception of the good; (2)
the liberal theory of the right contains a structural feature that is a
constituent feature of a conception of the good; or (3) people who adopt the
deliberative attitude in their social lives are systematically more likely to
adopt the deliberative attitude in political justification.
n116 According to
"in democratic society public reason is the reason of equal citizens who, as a
collective body, exercise final political and coercive power over one another
in enacting laws and in amending their constitution." John
Rawls, Political Liberalism 214 (1993). This is a narrower conception of public reason than Kant's because
Kant believed that
"the public use of one's reason must always be free, and it alone can bring
about enlightenment." Immanuel Kant, What is Enlightenment?, in Perpetual Peace and Other Essays
n117 The inescapability of the deliberative attitude as a constituent feature of
the good is argued in greater detail in Lipkin, supra note 3.
n118 Moreover, if liberalism is preferred because it avoids conflict or strife,
then you will embrace liberalism if the avoidance of conflict and strife are
your primary values. See Seyla Benhabib, Liberal Dialogue Versus a Critical
Theory of Discursive Legitimation, in Liberalism and the Moral Life 143, 146-47
(Nancy L. Rosenblum, ed., 1989). This hardly shows that liberalism is not
dependent on at least a partial conception of the good.
n119 Political reason refers to the basic structure of society, while social reason
refers to personal and associational activities in non-constitutional and
n120 This departs from
Rawls' use of
political liberalism. According to
Rawls, the political liberal is someone who accepts liberalism concerning public
reason and political justification, but whose conception of the good is
irrelevant to political justification.
Rawls, supra note 116. Since I believe liberalism contains a conception of the good,
I want to contrast the comprehensive liberal with a political liberal. To make
the appropriate contrast, the political liberal must embrace the deliberative
attitude concerning political justification, but reject it concerning her
conception of the good.
n121 As Kent Greenawalt puts it,
"liberal nonreligious comprehensive perspectives are bound to 'suffer less' from
a principle of liberal self-restraint than both religious and nonreligious,
non-liberal views. This difference may reasonably be thought to involve a kind
of inequity." Kent Greenawalt, On Public Reason,
69 Chi.-Kent L. Rev. 669, 688 (1994).
n122 See MacIntyre, supra note 18, at 345 (arguing that the liberal's conception of
"and the theory . . . of justice . . . are not neutral with respect to rival and
conflicting theories of the human good."). The claim here is that even if liberalism wanted to, it cannot escape a bias
in its own favor because
"the starting points of liberal theorizing are never neutral as between
conceptions of the human good; they are always liberal starting points." Id.
Rawls, supra note 116, at 133-72.
n124 The comprehensive liberal expresses the deliberative attitude as the unifying
principle of her theoretical and practical life. See Stephen Macedo, Liberal
Virtues: Citizenship, Virtue and Community in Liberal Constitutionalism 276
(1990). Hence, the deliberative attitude represents a way of life, a technique
of being in the world. Id. at 256 (asserting that freedom is a way of life).
This way of life
"contains within itself the resources it needs to declare and to defend a
conception of the good life that is in no way truncated or contemptible." William Galston, Defending Liberalism, 76 Am. Pol. Sci. Rev. 621, 629 (1982).
Not everyone, of course, concurs in the desirability of the deliberative
Rawls, supra note 54. But see Joseph Raz, Facing Diversity: The Case of Epistemic
Abstinence, 19 Phil.
& Pub. Aff. 3, 15 (1990) (arguing that endorsing
Rawls' theory of justice achieves stability and unity and that makes the theory
true). So called
political liberalism applies to the public, political arena. See
Rawls, supra note 114; see also Bruce Ackerman, supra note 10. But see Bruce W.
Brower, The Limits of Public Reason, 91 J. Phil. 5, 15 (1994) (arguing that
"Rawlsian arguments will be acceptable only to those who have already approved
the contractarian ideal of the reasonable person").
Rawls' terminology, my point is that a political liberal who integrates the
deliberative attitude throughout her political life and her social life has an
advantage over a political liberal who adopts the deliberative attitude in her
political life only.
n126 But see Will Kymlicka,
Rawls on Teleology and Deontology, 17 Phil.
& Pub. Aff. 173, 184-85 (1988) (a thought-provoking article arguing that this
view is misplaced).
Rawls adopts the distinction between
"pluralism as such" (or pluralism in fact) and reasonable pluralism. Pluralism as such constitutes
"a mere historical condition that may soon pass away."
Rawls, supra note 6, at 36. While reasonable pluralism
"is a permanent feature of the public culture," pluralism as such implies that free institutions tend to encourage a variety
of different views based on idiosyncratic features of peoples' points of view.
Id. Reasonable pluralism
"is the fact that among the views that develop are a diversity of reasonable
Joshua Cohen, Moral Pluralism and Political Consensus, in The Idea of Democracy 270, 280.
(David Copp et al. eds., 1993).
Rawls does not explain his conception of reasonableness, but Cohen attempts a
definition, according to which
"an understanding of value is fully reasonable just in case its adherents are
stably disposed to affirm it as they acquire new information and subject it to
Rawls, supra note at 116, at 28-81. In my view, both
Rawls and Cohen need to say more about the notion of reasonableness. Interpreting
Cohen's conception of reasonableness narrowly, only few comprehensive views
will be reasonable, while if we construe the critical terms expansively, almost
everyone's view is reasonable. The problem is trying to formulate a conception
of reasonableness that is neither too narrow nor too expansive, nor circular.
But what can such a conception be based on? A reasonable conception of
reasonableness? Since the concept of reasonableness plays such a significant
role in most characterizations of liberalism, we need a thorough analysis of
this concept before we can determine whether it is successfully used in
constructing liberal theory.
The existence of a plurality of values does not itself entail liberalism, nor
does it entail any other political theory. See generally George Crowder,
Pluralism and Liberalism, 42 Pol. Stud. 293 (1994). Moreover, liberal theorists
typically advocate a plurality of liberal values, but
"why should we accept that the plurality of values available to us is, on the
whole, a plurality of liberal values?" Id. at 304. Moreover, to justify the restriction, it might be necessary for
liberalism to embrace historicism. Id. at 304-05. But see Isaiah Berlin
& Bernard Williams, Pluralism and Liberalism: A Reply, 42 Pol. Stud. 306 (1994).
n128 This type of unity is an important value if one endorses the idea of a
structured, integrated sense of self. The more bifurcated one's life, the less
one has an integrated sense of self. A truncated sense of self requires
principles for ranking or balancing the disparate parts of the self, and such
principles are hard to find. The deliberative attitude is designed to integrate
the disparate parts of one's life and therefore expresses the unity of the self.
n129 Consider Miriam Galston's remarks:
Rawls denies the label
"reasonable" to any comprehensive views that see political principles as derived from or
dictating to moral, psychological, religious, or metaphysical views. Thus,
Rawls excludes from his democratic society any comprehensive view that sees
political theory as part of and inseparable from a comprehensive view.
Miriam Galston, Rawlsian Dualism and the Autonomy of Political Thought,
94 Colum. L. Rev. 1842, 1851 (1994).
n130 Cf. S. A. Lloyd, Relativizing
69 Chi.-Kent L. Rev. 709, 729 (1994) ("We may also think it is a good thing that others be able to act authentically
on their political commitments, for reasons of both moral integrity and
psychological health.") (emphasis added).
n131 See id.
n132 See id.
Rawls maintains that the stability of a political conception of justice lies in its
support from an overlapping consensus. In this view, the same political
conception will be embedded in different comprehensive doctrines. Thus,
political reason will have the appropriate force and unity. But this assumes
that the political conception will be embedded in these different comprehensive
doctrines in the same way and to the same extent. Nowhere does
Rawls demonstrate that this is so. If it is not so, there is no guarantee that
stability and unity can be achieved through this consensus.
n133 While not endorsing it, Nagel gives a good description of this distrust.
Defenders of strong toleration tend to place a high value on individual
freedom, and limitation on state interference based on a higher-order
impartiality among values that tends to promote individual freedom to which
they are partial. This leads to the suspicion that the escalation to a higher
level of impartiality is a sham, and that all the pleas for toleration and
restraint really disguise a campaign to put the state behind a secular,
individualistic, and libertine morality--against religion and in favor of sex,
Thomas Nagel, Equality and Partiality 156 (1991). Nagel goes on to say that a
"should at least be able to convince himself that others have reason to accept
certain principles of political toleration and impartiality. . . ." Id. at 157. The problem here is that in the important, controversial cases no
reliable procedure exists to rule out self-deception and bad faith. Without
such a procedure we are left only with a case by case process that engenders
suspicion and distrust.
On another occasion Nagel writes:
"Liberal impartiality is not in competition with more specific values as one
conception of the good among others. If it were, it would be unintelligible. .
. ." Nagel, supra note 28, at 239. According to Nagel, it is a mistake to think
that liberalism requires
"its adherents to step outside liberalism itself to compromise with antiliberal
positions. It purports to provide a maximally impartial standard of right which
has priority over more specialized conceptions in determining what may be
imposed on us by our fellow humans, and vice versa." Id. Liberal impartiality may or may not be
"in competition with more specific values as one conception of the good among
others." Id. But the deliberative attitude is in competition with other conceptions of
the good. That is what makes it an attractive attitude; it promises a life that
endorses the process of choice more than the object chosen.
Joshua Cohen, A More Democratic Liberalism,
92 Mich. L. Rev. 1503, 1519-20 (1994). More specifically,
"the case for stability . . . depends upon a set of moral commitments and
self-understandings that some members of a well-ordered society will reasonably
Rawls contends that
"accepting the political conception does not presuppose accepting any particular
comprehensive religious, philosophical, or moral doctrine; rather, the
political conception presents itself as a reasonable conception for the basic
structure alone. . . ."
Rawls, supra note 116, at 175. But see Cohen, supra note 132, at 1527 ("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.") (emphasis added).
n136 Will Kymlicka, Liberal Individualism and Liberal Neutrality, 99 Ethics 883,
884-86 (1989). According to Kymlicka, a liberal state is sufficiently neutral
when it fails to
"justify its actions by reference to some public ranking of intrinsic value of
different ways of life, for there is no public ranking to refer to. This kind
of neutrality is consistent with the legitimate nonneutral consequences of
cultural competition and individual responsibility." Id. at 886.
n137 Isn't it irrational to evaluate a conception of public reason without
considering its predictable consequences? Cf. Thomas Pogge, Cosmopolitanism and
Sovereignty, 103 Ethics 48, 54 (1992).
n138 If this distinction is viable, distrust and suspicion concerning public reason
will naturally arise when those not sharing the comprehensive deliberative
approach find themselves on the short end of the consequences of public reason.
n139 Cohen, supra note 64, at 27.
n141 Id. (emphasis added).
n143 John Dunn, Social Theory, Social Understanding, and Political Action, in
& Political Practice 109, 112 (Christopher Lloyd ed., 1983).
n144 See Elizabeth H. Wolgast, The Demands of Public Reason,
94 Colum. L. Rev. 1936, 1941-44 (1994) (arguing that a theory that sacrifices integrity for
Rawls' conception of civility will not be widely acceptable).
Rawls wants to derive political justification from our political culture in which
free and equal people must adopt some scheme of social cooperation. The concept
of free and equal people seeking social cooperation seems conspicuously liberal
and deliberative from the start. How can that be the neutral basis of
Rawls' conception of reasonableness centers around people regarding themselves as
free and equal with a sense of justice and a conception of the good.
n147 See Onora O'Neill, Ethical Reasoning and Ideological Pluralism, 98 Ethics 705,
n148 See Jean Hampton, The Moral Commitments of Liberalism, in The Idea of
Democracy, 292, 309 (David Copp et al. eds., 1993) ("It is easy for any powerful group to insist that its society's standards of
what is reasonable and rational justify only its views of the world.").
Rawls, supra note 54.
n150 As Hampton observes:
Rawls defends his theory of justice in a way that is genuinely morally neutral by
arguing that the ideas from which it is deduced are accepted by the
populace--in which case the public charter of the society turns into a mere
modus vivendi based on beliefs that happened to be held by the people today and
that they might abandon tomorrow; or he defends them as correct . . . in which
case his defense of liberal values presupposes the truth of a comprehensive
metaphysical view that includes them, and implicitly rejects the idea that a
liberal democratic society can take a neutral stand on every value-issue.
Hampton, supra note 148, at 309, Hampton believes that
Rawls suggests that his 'reasonableness' principle of legitimating political
coercion is derived from assumptions of human freedom and equality, his
rhetoric suggests his (in my view legitimate) intolerance of the views of those
who would repudiate these assumptions." Id. at 310. Now Hampton's view might be the only one left standing after
considering the alternatives. Nevertheless, it is puzzling why Hampton does not
appear to recognize that this conclusion is troubling. Simply put, is there no
more compelling conception of tolerance that either permits us to tolerate the
intolerant, or at least to understand in a principled fashion why we need not
bother? Hampton might reply that we can explain the latter by indicating that
toleration cannot survive if we allow those who repudiate its assumptions to
destroy our system of tolerance. But this begs the question against fascists,
communists, and Social Darwinists. Perhaps this is as far as we go. Perhaps we
must conclude that liberal toleration is a very bad system because it cannot
refute these other perspectives. Perhaps it is the worst system of political
organization, except for the rest. See id. at 311.
n151 Although the character of liberal justification might not necessarily commit
one to a particular conception of the good, if only certain kinds of people
having a particular conception of the good are inclined to adopt liberal
justification, then liberal justification is skewed in favor of that kind of
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.
Cohen, supra note 134, at 1526.
& Schwarzschild, supra note 18, at 109. Liberalism also includes such personal
virtues as autonomy, critical reflection, independence, liberal pluralism,
respect, dignity, mutual trust, responsibility, and experimentation. See David
Held, Models of Democracy 270 (1987); see also William Galston, Defending
Liberalism, 76 Amer. Pol. Sci. Rev. 621, 628 (1982) (describing the elements in
the liberal conception of the good including social peace, the rule of law,
diversity, inclusiveness, decency, affluence, self-realization, approximate
justice, truth, and privacy).
n153 Moreover, in international contexts having no shared political culture, this
connection is sufficiently close to warrant the charge that liberalism fails to
provide a procedure for neutrally deciding on principles of political
justification. Instead, liberal principles of justification in international
contexts smuggle in a liberal conception of the good.
n154 Charles Taylor, Multiculturalism and
"The Politics of Recognition": An Essay by Charles Taylor (1992); Charles Taylor, The Ethics of Authenticity
n155 Albert Weale, Toleration, Individual Differences and Respect for Persons, in
Aspects of Toleration 16, 18 (John Horton
& Susan Mendus eds., 1985) ("To be tolerant involves the acceptance of differences that really matter to you.").
n156 See Onora O'Neill, Constructions of Reason: Explorations of Kant's Practical
Philosophy 31 (1989).
n157 This attitude can be found in Hobbes' political philosophy and does not
exactly assume the moral high road, though it might occupy a morally middle
ground position. I might not appreciate nor respect your views, but I might
believe that a good society tolerates--in this modus vivendi sense--even
unacceptable or despicable views.
n158 Raz, supra note 78, at 401. But see Edward Sankowski, Personal Autonomy
Institutions, and Moral Philosophy, in Paradigms in Political Theory 34 (Steven
J. Gold ed., 1993).
n159 Raz, supra note 78, at 401-02.
n160 Id. at 402.
n161 Raz comes close to this conception in discussing multiculturalism. According
"multiculturalism insists that members of different groups in a society should
be aware of the different cultures in their society, and learn to appreciate
their strengths and respect them." Joseph Raz, Multiculturalism: A Liberal Perspective, in Ethics in the Public
Domain 155, 166 (1994). Raz probably would insist that appreciating and
respecting different cultures means considerably more than tolerating them. In
my view, we understand the moral psychology of toleration better, and how it
relates to pluralism, when we see it in terms of appreciation and respect, even
when what we tolerate--appreciate and respect--is antithetical to our
conception of the good. Perhaps there is less that separates Raz's view of
tolerance and mine, since Raz believes that
"even when cultures are at fault, and certainly when they are inferior without
being oppressive, we have reason for supportive tolerance." Id. at 170. Consider Raz's words:
People bred and socialized within such cultures often knew no better, and had
no choice. Moreover, by the time they are grown up their ability to transplant
themselves and become a part of another culture are limited . . . . Given that
even oppressive cultures can give people quite a lot, it follows one should be
particularly wary of organized campaigns of assimilation and discrimination
against inferior and even oppressive cultures. For many of their members they
provide them with all that they can have, as it may be too late for them to
make a transition.
"To understand everything is to forgive everything."
n163 The attitudes of appreciating and respecting dedicated cultures are associated
with empathy and sympathy. Developing the capacity for sympathy is perhaps a
general way to come to recognize diversity. Also, sympathy is related to
tolerance in that sympathy is likely to increase and deepen one's capacity for
tolerance. In the standard interpretation of Hume's ethics, sympathy plays a
pivotal role as the empirically discoverable primary moral emotion. See
generally David Hume, An Enquiry Concerning the Principles of Morals (L.A.
& P.H. Nidditch eds., 1975); David Hume, A Treatise Of Human Nature (L.A.
Selby-Bigge ed., 3d ed. 1965). But see Robert Justin Lipkin, Altruism and
Sympathy in Hume's Ethics, 65 Australasian J. Phil. 18, 65 (1987) (interpreting
Hume's conception of sympathy as a necessary feature of moral personality). For
a phenomenological account of sympathy, see Max Scheler, The Nature of Sympathy
(Peter Heath, trans., 1970).
n164 It might be argued that liberalism requires the existence of dedicated
cultures in order to provide individuals with a sufficiently wide array of
different lifestyles from which to exercise deliberative autonomy. Therefore,
in the name of deliberative autonomy, liberalism must tolerate dedicated
cultures. But how can dedicated cultures benefit liberal choice? If the values
of the dedicated culture are truly dedicated and therefore do not admit of a
deliberative justification, they are irrelevant to liberal reasoning. More
importantly, even if successful, this objection explains liberal tolerance in
the wrong way. Rather than appreciating or respecting dedicated cultures, this
objection contends that liberals should use such cultures as a means to benefit
liberal choice. If liberalism truly tolerated dedicated cultures, it must do so
for the benefit of the dedicated culture, not for the liberal's benefit.
n165 Explaining and justifying the deep structure of dedicated cultures can only be
performed by non-deliberative factors.
n166 Charles Larmore, Patters of Moral Complexity (1988). Nevertheless, any culture
can explain toleration in this sense. Liberalism has nothing special to offer
here. See Cohen, supra note 134, at 1543.
n167 If tolerating non-liberal cultures is possible at all, it consists of an ad
hoc compromise or accommodation between the liberal and non-liberal cultures
following no more strongly from liberalism than it follows from non-liberalism.
In fact, prominent liberals themselves have rejected such compromises as
inconsistent with the deep structure of liberal theory. For example,
Rawls rejects the possibility of
political liberalism resting on
"a mere modus vivendi, dependent on a fortuitous conjunction of contingencies." John
Rawls, The Idea of an Overlapping Consensus, 7 Oxford J. of Legal Stud., 1 (1987);
Rawls, supra note 116, at 47-48 (arguing that the modus vivendi approach is
Nagel also argues against a modus vivendi approach because:
A defense of toleration as a modus vivendi can be offered to holders of
radically divergent moral and political positions, but it is an instrumental
argument, and does not present higher-order impartiality in the political
sphere as a value in itself. It could not therefore be offered as a reason for
toleration to those who felt certain that their domination of the society was
Nagel, supra note 133, at 157.
n168 Moreover, if we understand toleration as a modus vivendi, we cannot offer the
appropriate assurances to minorities having only a weak position in the
n169 One feature of almost every significant conception of tolerance is mutuality
n170 See Doyle, supra note 24 (arguing that this rarely occurs).
n171 In correspondence Edward Sankowski points out that my worries are really over
the compatibility of certain forms of liberalism and certain kinds of minority
cultures, not liberalism and minority cultures or multiculturalism generally. I
would put this point differently. The compatibility of liberalism and
multiculturalism rests on whether deliberative cultures can tolerate dedicated
cultures. If liberalism can tolerate only some forms of dedicated cultures, we
must understand why, and we must be suspicious of conceptions of liberalism
Rawls' that seem to stack the deck in favor of the deliberative process.
n172 One such account of liberalism as the culture of cultures is revealed in the
We should always maintain only a contingent and never a constitutive
allegiance to any substantial view of the good life, that is, to any concrete
way of life involving a specific structure of purposes, significances, and
activities (e.g. the life devoted to art, or to a career, or to a particular
religion). Such forms of life can be truly valuable . . . only if they are
chosen from a position of critical attachment, in something like an
experimental spirit. The source of value, and so the supreme value, is what is
expressed in this posture of choice[.]
Political Liberalism, 18 Pol. Theory 339, 343 (1990).
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Philosophy 111A Page