POLITICAL LIBERALISM


John Rawls
1993




Copyright (c) 1994 The Board of Trustees of Leland Stanford Junior University
Stanford Law Review

July, 1994

46 Stan. L. Rev. 1807

LENGTH: 15353 words

REVIEW ESSAYS: The Subject of Liberalism

Political Liberalism. By John Rawls. * New York: Columbia University Press. 1993. 371 pp. $ 29.95.



Professor of Philosophy, Harvard University.

Frank I. Michelman *



* Robert Walmsley University Professor, Harvard University. Thanks to Joshua Cohen, Owen Fiss, and Michael Stocker for helpful discussion, and to Bruce Ackerman, Joshua Cohen, and Michael Sandel for sharing their drafts on Political Liberalism.


SUMMARY:
  ... In Political Liberalism, the influential moral philosopher John Rawls attempts in part to justify a particular, liberal conception of justice by arguing that it is the conception which best corresponds to the way we perceive our powers and motivations when we behave politically. ... When Rawls builds a justificatory argument for justice as fairness, he starts from a distinctly Kantian view of personality - the "political conception of the person" - that seems to carry us well outside the irresistible core of thin liberal subjectivity, into apparently much more controversial territory. ...  

TEXT:
 [*1807] 


In Political Liberalism, the influential moral philosopher John Rawls attempts in part to justify a particular, liberal conception of justice by arguing that it is the conception which best corresponds to the way we perceive our powers and motivations when we behave politically. In this review essay, Professor Michelman suggests that Rawls' method may offer a way out of the debates over subjectivity and value currently occupying many legal scholars. By starting from a depiction of the liberal subject as the kind of person for whom constitutional democracy is the appropriate form of social ordering, Professor Michelman observes, Rawls constructs an "internal critique" of American society which depends on the practical, cultural appeal of that view of the person, not on its ultimate truth. However, Professor Michelman concludes that whether Rawls' approach is necessarily relativist - speaking only to those who already believe in liberal constitutionalism - or instead produces universally generalizable prescriptions remains unclear.


I. Introductions


A. Meet the Political Subject (You?)


Try on for size this proposed description of yourself as a political person. n1 To begin with, you possess two "moral powers." n2 You have "a capacity for a sense of justice," n3 that is, an ability to understand and act from some "public conception that fixes fair terms of social cooperation." You also have "a capacity for a conception of the good," n4 that is, an ability to form, revise, and rationally pursue your own conception of what gives value to your life. Conscious and respectful of your moral powers, you want to develop and use them; indeed, you rank their development and exercise among your life's guiding or "higher-order" interests. n5 You have, in fact, "conception-dependent desires," meaning desires to be the sort of person who lives the sort of life to which the  [*1808]  moral powers beckon: who acts according to principle and does so both "rationally," in accord with your own conception of the good, and "reasonably," in accord with a public conception of justice to which you are willingly committed. n6

Thus are persons politically conceived, according to John Rawls in Political Liberalism. Does he mean you? Is this you?

What is Professor Rawls trying to prove in his recent political philosophy? In particular, what is Rawls doing with the set of descriptions that he styles "the political conception of the person"? What is a "political" conception of the person? These are key questions for those who ponder the bearing of Rawls' work on their own professional and ethical concerns.



B. Lawyers Meet Rawls


Lawyers and legal theorists have fairly obvious, broad reasons for trying to get at least roughly clear Rawls' philosophic intentions and methods. Consider the suggestion that constitutional jurisprudence from the Warren and Burger Courts is traceable in part to Rawls' philosophy as set forth over twenty years ago in A Theory of Justice. n7 Supposedly, law professors under Rawls' spell helped spread his egalitarian-liberal ideas to the United States Reports by propagating them in law reviews and in classrooms where judicial clerks are spawned. On this point, the distinguished political theorist Alan Ryan wrote in a recent review:


 
Mr. Rawls's ideas have crept into the law of the land. Liberalminded lawyers keep pushing the envelope of the Constitution, trying to expand Americans' civil liberties, but they don't at the same time encourage the courts to favor the rights of property developers. One reason is that they have been taught that liberal ideals of justice do embrace civil rights and economic equality but do not embrace laissezfaire and the unfettered rights of property. n8
 


I do not know to what extent this influence thesis is true. The formation of the characters and views of William Douglas, William Brennan, and other leading liberal jurists predates A Theory of Justice. The Warren and Burger Courts could have risen and flourished (insofar as they did) absent the influence of Professor Rawls or any comparable philosopher. The causes of those Courts' careers could lie quite elsewhere, and the rise of the Warren Court itself may help to explain the spread of egalitarian liberalism in the law schools. n9

It is nonetheless true that Rawls' work has engaged law professors' attentions mainly as a (controverted) source of support for egalitarian-liberal constructions of the Bill of Rights. n10 Rawls, however, has not been exclusively  [*1809]  concerned with promoting a particular substantive conception of political justice; he has also been digging deep into questions about how one can possibly provide a philosophically adequate justification for any conception of this kind in the apparent conditions of normative and visionary dissensus that characterize modern liberal societies. His excavations, especially those made in a series of 1980s writings beginning with his Dewey Lectures n11 and now reworked and synthesized in Political Liberalism, demand the attention of anyone exploring what it means to be engaged in liberal political argument. n12 Here I want to consider the possible bearing of Rawls' work on a current debate in legal scholarship concerning the value and defensibility of any attempt at systematic normative argumentation.



C. The Problem of the Subject
 


In law schools and law reviews today, debates about subjectivity are full upon us. n13 "Subjectivity" here connotes self-authentication n14 and self-command. A "subject" is a self in charge of its own thoughts and actions - a spontaneous author of plans and doer of acts inspired by its own cognitions, calculations, and desires. Subjectivity is banal: Of course lawyers argue, judges judge, lawmakers legislate, and law professors theorize and prescribe as if it were unquestionably true that humanity is composed of individual subjects. We commonly speak and write without a care for the doubts cast by the post-Enlightenment on the idea that all individuals really do stand severally in control of their thoughts and behaviors. n15 Some contemporary critics of subjectivity (and, relatedly, "normativity" n16 ) in legal scholarship perceive this  [*1810]  heedlessness as a pathological condition that deserves attention. As they also see, however, their intervention itself is problematic on its own terms. How could anyone utter the call for attention, how could anyone give or have reason to give attention to anything, if not apprehending himself subjectively, as a consciousness sponsoring its own thoughts and exertions? The critique of subjectivity performatively affirms the subjectivity it questions. n17 In short, "the problem of the subject," for legal scholarship generally, is the sense that we cannot abandon the idea of our own subjectivity but also (perhaps) can't strongly defend it against scientific and philosophical critique. n18

It is not my purpose here to attempt a resolution of the problem of the subject. n19 Rather, I propose that a study of Rawls' work, particularly his argumentative deployment of a certain description of individual personality, can shed some light on the problem. Rawls visibly builds into his philosophy a particular, strong idea of the liberal subject, but he does it so circumspectly, indeed, so ostensibly noncommitally, as to suggest how the problem of the subject may more generally be managed in contemporary liberal thought. n20



II. Justification, Personality, and Truth
 




A. Constitutional Justification and Conceptions of the Person
 


Rawls directs Political Liberalism in part to the justification of a particular "political conception of justice" that he calls "justice as fairness." By a political conception of justice Rawls means, in the first place, n21 a set of principles meant to regulate a society's "basic structure" - its "main political, social, and economic institutions, and how they fit together into one unified system of social cooperation." n22 Many will recall from A Theory of Justice (or from  [*1811]  countless allusions to the book since its publication) the famous two principles of justice as fairness: n23


 


a. Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all. n24

b. Social and economic inequalities are to satisfy two conditions. First, they must be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they must be to the greatest benefit of the least advantaged members of society. n25
 


The principles in a political conception are designed to fix criteria for the society's discursive resolutions of all questions of "constitutional essentials" n26 and "basic justice." n27 Political Liberalism, to this extent, is an essay in normative political theory, offering justification for a particular regulative conception of the political constitution. No one, presumably, takes up such a work of justification who does not think it matters what constitutional conception is in force. But how do constitutional conceptions matter, if they do? Presumably, they matter because of how we think political constitutions affect the values of people's lives spent "under" them. It seems, then, that to justify one or another constitutional conception must be to assert some sort of favorable relation between that conception and the values of lives.

What sort of relation depends on how we conceive of human-life value. If value signifies experiential satisfaction, then the better-justified constitution is the one that is more conducive to the production of satisfaction. But if value is of the sort that Ronald Dworkin calls "critical" n28 - measured by people's success in living as they know they ought, as opposed to living as they simply wish - then the better-justified constitution may be the one that better serves our critical interest in living under conditions of justice or in ways that express respect for human dignity.

Here we can leave this question open. Let the measure of life-value and the correlative justificatory relation be what they may. We realize, in any case, that  [*1812]  in order to speak cogently of how one or another constitutional conception connects with the values of lives, the speaker can hardly refrain from positing some features of the persons whose lives they are.



B. Liberal Personality: Minimal and Beyond
 


As normally conceived in liberal throught, persons, I suggest, have the following attributes: They are ethically several, interest-bearing, self-activating, communicative, and self-conscious (or self-reflective). To explain:

Ethically several: Each subject leads a life of its own that is conceptually distinct from the lives of other subjects, and each of these several lives is a conceptually distinct field of value. "Conceptually distinct" means that in contemplating the values of lives we take them one by one. This does not rule out causal linkages or require that the values assigned to any one subject's actions or experiences be held independent of values assigned to others' actions or experiences.

Interestbearing: Various events may differentially affect each subject for better or worse, so that we can judge events as enhancing or detracting from the thriving or wellbeing of subjects taken one by one. Again, this does not rule out empirical linkages between the interests of one subject and the interests of others.

Selfactivating: Each subject can contemplate its interests, discover and present to itself corresponding reasons for action, and act or alter its state accordingly. This does not rule out joint, coordinated, reciprocal, or otherwise co-responsive reasons and actions.

Communicative: Each subject can intentionally affect other subjects' perceptions of reasons for action and may have its own perceptions intentionally affected by others.

Selfconscious (reflective): Each subject is aware of itself as an ethically several, interestbearing, selfactivating, communicative subject. This does not rule out that individual selfconsciousness may depend on reciprocal awareness by subjects of each other.

Since all of these attributes would be indisputable common ground for every liberal, spanning the range from the proto-liberal Hobbes n29 to the super-liberal Unger, n30 we may call this conception of the subject a minimal or "default" n31 liberal conception. A more robust conception of the person would be one that drew additional attributes into subjectivity, ones not so conspicuously irresistible to inhabitants of liberal culture as the ones we have so far compiled. In contemporary egalitarianliberal political philosophy, two sorts of more robust subjectivities appear, which we can somewhat loosely call "romantic" and "Kantian." On the romantic side, we find a subject so conditioned that thriving for it essentially consists of selfcreative accomplishments such as authoring  [*1813]  one's life or setting apt challenges to oneself and meeting them well. n32 On the Kantian side appears a subject so conditioned that it cannot thrive without having before it principles of regard for the interests of particular fellow subjects or of all subjects - principles of right or morality or justice - to which it can precommit itself and from which it can then draw preemptive reasons for action. n33

Suppose, for the moment, that we take these romantic and Kantian motivational attributions as claims about how people just are, "by nature," so to speak. Then, while the attributions may not seem outlandish, neither do they seem irresistibly self-evident. Many will find closer to irresistible (although still adding to the minimal liberal conception) Hobbes' picture of a humanity moved only by aversion to pain, attraction to ease, and imaginatively inflected calculations of the means and prospects of avoiding the one and securing the other. n34 By comparison, the romantic and Kantian depictions may seem to stand out as specialty flavors of humankind.



C. Conception and Truth
 


To speak of the liberal subject is to call to mind the sort of being theorists have in view when they undertake to justify a liberal constitutional conception by showing some benign relation between the favored conception and the values of human lives. n35 Liberal constitutional justifiers do irresistibly think (and confidently expect their audiences to think) of persons as subjects. That is, we (justifiers and audience) irresistibly view ourselves and other individuals each as a point of origin of consciousness, choice, and action, and this self-understanding closely shapes our constitutional prescriptions. n36 One of Political Liberalism's striking features is its apparent attribution to humankind, as a basis for its claims on behalf of liberal constitutionalism, of features going well beyond mere "default" subjectivity. When Rawls builds a justificatory argument for justice as fairness, he starts from a distinctly Kantian view of personality - the "political conception of the person" n37 - that seems to carry us well outside  [*1814]  the irresistible core of thin liberal subjectivity, into apparently much more controversial territory.

Yet notice this interesting possibility: Perhaps it needn't be that we hold the more fulsome Rawlsian conception of the person (or even, for that matter, minimal liberal subjectivity) to be a simple fact of the human condition. Perhaps all that's required to justify a constitutional conception is that we treat a certain depiction of personality as true of us and our co-citizens just insofar as we're either engaged in conceiving and defending a normative doctrine of the state, or we're involved in focused participation as citizens or officials in the range of political activities that such a doctrine organizes. n38 This, then, would be one way to qualify as "political" the Rawlsian conception of the person.

Political Liberalism takes this possibility seriously. The book is (or includes) an essay in fitting a specific constitutional conception to a specific conception of the person, while avoiding any claim that the personal conception is true in the sense in which we hold something to be true in our cognitive dispositions as inquirers into the ultimate - as scientists, religionists, or first-things philosophers. n39 Sufficient for the purposes of liberal constitutional justification, Rawls aims to show, is that the personal attributes of subjectivity, moral powers, and corresponding conception-dependent desires are true of us "politically speaking." By this he means that these attributes register how we do and must regard ourselves, on due reflection, when what's specifically on our minds is how we, as citizens in a liberal (constitutional-democratic) regime, stand vis-a-vis political society and its institutional manifestations of state and law. n40



D. "Political" Liberalism
 


Needless to say, the principles of justice as fairness n41 are liberal principles. They feature strong commitments to basic individual rights and liberties, to limited government, to acceptance of difference and even conflict among people's conceptions of the good in human life, to securing broad latitude for people's endeavors to live their lives according to their varying conceptions of the good, to a rule of law and equality before the law, and to entrenchment of these commitments in a political constitution.

Equally obviously, justice as fairness is a doctrine of the political, concerned with the political fundamentals - the basic structure, constitutional essentials, and questions of basic justice. For Rawls, however, the "political" character of a normative conception resides not only in the politicality of its subject matter. Rather, the conception must also be "freestanding" vis-a-vis what Rawls calls "comprehensive" moral, philosophical, or religious doc  [*1815]  trines. n42 A conception is political in this second sense insofar as it is expounded without reference to any broader doctrine of ethics in general, of human flourishing, or of the good life for humankind. n43 Of course, it is controversial how far political concerns can ultimately be expounded and defended without appealing to ethical and metaphysical ideas. n44 But Rawls finds compelling reasons to hold political conceptions as distinct as possible from comprehensive views of reality and value, so that justifications for the former depend as little as possible on partisan commitment regarding the latter. n45

In addition to subject matter and expository self-sufficiency, Rawls cites a further respect in which a normative conception can qualify as "political." A conception is political in this third sense insofar as "its content is expressed in terms of certain fundamental ideas seen as implicit in the public political culture of a democratic society." n46 A political culture is composed of "the political institutions of a constitutional regime and the public traditions of their interpretation." n47 It is from constitutional-democratic political culture that Rawls expressly draws the core of the political conception of the person. We start, Rawls says, by looking to this culture for a shared fund of basic normative political ideas. n48 This shared fund includes the ideas that persons are free and equal, and that as such they intend their political association - in and through a state - as a fair scheme of cooperation. n49 Reflecting on these two ideas about ourselves as we stand politically, Rawls says that we are led to ascribe to persons the two moral powers. n50

Let us now try to gather some thoughts. As a political conception of justice, justice as fairness aims to regulate society's determinations of constitutional essentials and basic justice. It is, thus, a normative conception of the political constitution. Accordingly, the philosopher commending justice as fairness as the most fitting conception "for us" n51 would seem to be setting himself a task of attributing features to persons, specifically, the "us" for whom the conception is said to be most fitting and the features of us by reason of which this fittingness is said to obtain. Rawls has seemingly attended to this task, and the ostensible result of his attentions is the political conception of the person as endowed with the two moral powers and correlative interests and motiva  [*1816]  tions. n52 A reader can hardly help taking this depiction as Rawls' presentation of the liberal subject, the archetype to whose attributes and interests Rawls' favored political conception (justice as fairness) is meant to be fitting. Yet Rawls ecumenically refrains from asserting the truth of this depiction. Instead, he claims for it a different sort of credential - recognizable correspondence with how subjects of constitutional-democratic culture represent themselves "politically speaking." n53

In sum, Political Liberalism has on offer an intriguing project in constitutional justification: one that does argue for the fittingness of a particular constitutional conception to persons according to a certain conception of them, yet does not assert that this conception of persons is (comprehensively) true. The rest of this essay attempts to gauge Rawls' success in this endeavor. Complete success, it seems, could potentially cut much of the ground from under contemporary critiques of subjectivity in legal scholarship. n54



III. The Status of the Subject
 




A. Politicality and Possibility: "The Problem of Political Liberalism"
 


At the outset of his new book, Professor Rawls announces "the problem of political liberalism," cast in terms of a question about possibility:


 
How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines? Put another way: How is it possible that deeply opposed though reasonable comprehensive doctrines may live together and all affirm the political conception of a constitutional regime? n55
 
If one reads this formulation to make political stability (on liberal terms) the ultimate quest for liberal constitutionalism, it may be misleading. Stability is indeed one of Rawls' main concerns, but he conceives that stability may flow from either of two types of agreement. One is a true, heartfelt, and conscious moral consensus on the regnant political conception. The other is a strategic compromise or balance of forces ("modus vivendi") among participants conscious of moral divisions that preclude affirmation by all of the morality of one and the same constitutional conception. What Rawls seeks is agreement of the first kind, which he calls "overlapping consensus." The aim is not only that adherents of opposed comprehensive doctrines should all affirm the same political conception, but that they should all affirm that the political conception is truly just for their plural society, hence as not only rational but also reasonable in the sight of them all. n56 Only then, Rawls evidently means, have we a fully satisfying solution to the problem of political liberalism.  [*1817] 

Behind the problem lies what Rawls calls the general fact of reasonable pluralism: that under conditions secured by free institutions, there inevitably arise and persist "a diversity of conflicting and irreconcilable - and what's more, reasonable - comprehensive doctrines." n57 A related general fact, one that plainly helps drive the Rawlsian attempt at a form of constitutional justification that doesn't depend on the comprehensive truth of any correspondent conception of persons, is the fact of oppression: that only savage application of state power could possibly bring all the inhabitants of a modern plural society to heel behind a single, spiritually unifying, comprehensive religious, philosophical, or moral view. n58

Now, one might take Rawls' question about possibility in at least three distinct senses that we may call practical, transcendental, and ideological. Most straightforwardly, one can take the question as a practical one, simply asking for a solution to the problem it sets out. One form of a solution would be a substantive conception of political justice on the order of justice as fairness. A statement of principles for governing constitutional essentials and matters of basic justice would practically answer the possibility question insofar as one could show that the statement, publicly acknowledged and respected in practice, could bring and hold together a society of conflicting comprehensive views on terms that all could accept as reasonable. n59

Alternatively, one can take Rawls' possibility question in what philosophers might call a transcendental sense. n60 The transcendental question asks not what is to be done, but rather what would hypothetically (if unascertainably) have to be true of humankind in order that a constitutional-democratic ordering for a modern plural society could persist peacefully and stably through time. The question asks not about the content of a solution to the problem of political liberalism but about conceptual possibility conditions for a solution. Just as "the political conception of justice as fairness" evidently stands as Rawls' an  [*1818]  swer to his possibility question taken in the practical sense, so "the political conception of the person" may be his answer (or a part of it) to the same question taken transcendentally. n61

Transcendentally understood, Rawls' possibility question seems an inquiry headed for counterfactual speculation, destined to land in the always somewhat mysterious zone of the necessary but unascertainable. But transcendentally is not the only possible way in which to understand a question about conceptual preconditions for a solution to the problem of political liberalism. This might also be an empiricist's question, directed to social facts of belief. Construed in that way, the political conception of the person stands as Rawls' account of certain ideas and a certain image that citizens of liberally constituted political societies do actually hold of themselves, "politically speaking." n62 It is the holding of these ideas and the particular image by the citizens, then, that makes possible a solution to the problem.

To call this an account of ideology is to think of Rawls himself seeing through the citizens' self-image he describes. It is to see Rawls thinking of citizens prompted by a sense of moral need to conceive of themselves and their fellows in a certain, Kantian way: This image, appearing to the citizens as commonly shared, enables them, despite their awareness of deep moral, philosophical, and religious divisions, severally to affirm as reasonable and rational the same set of constitutional principles.

To gain an adequate grasp of Rawls' political philosophy, I believe we must understand him as intending his answers to the possibility question in all three senses - practical, transcendental, and ideological.



B. Possible Senses of the Political Conception of the Person
 


It would follow, then, that Rawls intends his "political" account of "the person" in two senses simultaneously. The first (transcendental, counterfactual) sense is that of a statement of attributes that would hypothetically have to be true of persons in a population if both of the following were also to be true of that population: (a) the facts of reasonable pluralism and oppression apply to it (as do the burdens of judgment), but (b) there exists for it, even so, the possibility of solving the problem of political liberalism. The second (empirical, ideological) sense is that of a statement of something that inhabitants of constitutional-democratic political culture in fact believe about themselves (politically speaking) that enables them to find a solution to the problem. n63  [*1819] 

These two possible intended senses - transcendental and ideological - of Rawls' Kantian attribution to persons of the moral powers and correlative motivations do not exhaust the possibilities. A complete survey would obviously have to include at least one further possible sense that we can call "ontological." Rawls would intend the political conception of the person ontologically insofar as he meant it to assert a truth of human nature. To be precise, there are two possible variations here. By "human nature" we could mean simply the ineluctable mode of being of persons as we always and presently find them, or we could mean a human telos - a potential but not (necessarily) actual state of fully developed human being. On either variation, an ontological construction of the political conception of the person would be more straightforward than either of the transcendental or ideological readings. Moreover, an ontological reading is the kind that responds directly to our intuitive idea about political justification: that it consists in showing a favorable relation between a certain constitutional conception and the values of the lives of persons according to a certain conception of how persons, by nature, are or have reason to be. n64

Despite these attractions, an ontological reading of the Rawlsian conception of the person is not readily available. Rawls seeks a constitutional conception that practically responds to the problem of political liberalism. That means navigating around the points of divisive conflict among the reasonable comprehensive views - moral, religious, and philosophical doctrines - expected to inhabit a modern, free society. Would Rawls call unreasonable every doctrine that conceives of persons, comprehensively speaking, as actually or ideally constituted rather differently from how Rawls conceives them? Unless he would, he cannot urge his conception of persons ontologically without making the resulting conception of justice an unacceptably partisan and not a "political" conception.

In other words, the conception of the person is part of the exposition of justice as fairness, and Rawls avowedly intends justice as fairness as "political" in the sense of its expositional independence from comprehensive ethical and philosophical doctrines. n65 The conception of the person, therefore, must itself meet the test of freestandingness, and it's hard to see how it can do so if taken ontologically. An ideological reading easily satisfies the test: Ideologically construed, the conception of the person describes how (certain) people think of themselves when they have politics, broadly speaking, on their minds. Perhaps the transcendental reading, too, may meet the test of freestandingness. Transcendentally construed, the conception of the person makes no claim to factuality or validity (or even to significance of any kind) outside the expository project of political liberalism. The philosopher says: "This is what we must somehow believe about persons, in order to make credible and coherent our (relatively) fixed beliefs about the basic rights and wrongs of politics." The same philosopher is then making claims on your beliefs, to be sure, but claims that still are relative to your disposition to respond in certain ways to distinc  [*1820]  tively political concerns. This philosopher's engagement could be limited to helping you unpack and organize the beliefs you have about politics, propounding certain facts about your beliefs relative to politics (although not necessarily about the objects of those beliefs). There seems, by contrast, no comparable way of restricting to a limited domain of the political a direct ontological declaration that persons are possessed of the two moral powers and correlative motivations. One can always tack "politically speaking" onto the end of the sentence, but what would this appendix now mean? I, at any rate, cannot find any clear sense for it. It seems that only by running the sentence through the filter of belief, either actual (the ideological construction) or necessary (the transcendental construction), can we give "politically speaking" any force. n66

Are we, then, ready to conclude that Rawls must intend either or both of the transcendental and ideological constructions of the political conception of the person? Not quite, because there is a fourth possibility still to be considered: Rawls might intend his conception of the person in a sense we can call "strictly constructive." Pending more extensive exploration, here is the rough idea: To regard a conception of the person as strictly constructive is to see it as a philosopher's tool for helping to elicit some cognition other than a cognition of the conception's own truth, its own correspondence to any other object (whether that other object be the world or the human condition itself or anyone's beliefs about the world or the human condition). For example, the philosopher solicits our cognition of the rightness (or the fittingness for us) of the political conception of justice as fairness. In the course of working us around to this cognition, the philosopher puts before us a certain conception of the person. This conception enters into his argument in something like the way in which (the analogy is very loose) a scaffold enters into the construction of a building; like a scaffold, the conception's claim on our attentions ceases when the projected cognition (the building) finally stands. To speak of the conception's validity, then, would mean only that it serves its cognition-building purpose, nothing more. Further explanation requires a brief foray into rarefied methodological regions of Rawlsian political philosophy. We need at least a superficial glance at the justificatory method that Rawls styles "political constructivism."



C. Political Constructivism
 




1. The original position as a regulative part of justice as fairness.
 


As a starting point for this excursion, consider that - as constitutional lawyers will rush to tell you - the regulative content of a constitutional conception  [*1821]  is not and cannot be fully or adequately expressed by abstract black-letter principles like the two principles of justice as fairness. The full regulative conception must include some kind of shared background understanding of the motivation and derivation of the principles, which can channel disputes over concrete applications of the principles forcefully enough to sustain confidence among disputants that all are appealing to one and the same public conception of justice. In justice as fairness, some of this requisite background understanding is provided by the famous hypothetical-contract construction that Rawls calls the "original position." n67 The original position is a conclave of representative "parties" hidden by a "veil of ignorance" from any knowledge of their constituents' actual social stations, economic lots, moral, religious, and metaphysical convictions, and particular life projects. The parties' task is to represent their constituents in choosing a conception - a set of principles - to regulate the distribution of "primary goods" in their society. n68 Portions of A Theory of Justice and Political Liberalism explain why, as Rawls contends, the parties rationally would choose the principles of justice as fairness. Shared understanding among citizens of how their constitutional principles are rationally derivable from the original-position construct enters, along with the black-letter principles, into the regulative content of justice as fairness to which citizens appeal in resolving disagreements over constitutional essentials and questions of basic justice.



2. Procedures of construction (devices of representation) and reflective equilibrium.
 


Rawls' use of the original-position construct exemplifies the form of justificatory argument that he labels political constructivist. A constructivist argument pivots on a "procedure of construction" or a "device of representation." This means a situation of choice of a constitutional conception, laid out so that it aptly reflects certain attributes of society and persons, namely, the ones that (the procedure's proponent stands ready to argue) ought to enter into a conception of political justice. n69 For Rawls, this means a conception suited to a deeply pluralized society committed to free democratic institutions and in that way responsive to the problem of political liberalism. n70 The original-position construct is meant to model both the problem and the form of a possible response to it. Perhaps we can join reasonable pluralism to political peace and freedom by showing how the principles of justice as fairness could have issued from (i) unanimous, self-protectively motivated rational choice in (ii) an initial situation aptly constructed to represent politically significant attributes of per  [*1822]  sons as (iii) those attributes are drawn from a broadly shared political culture of constitutional democracy.

Now, the rightness of Rawls' procedure of construction depends on more than the aptness of his ascriptions to society and persons; it also depends on his translations of these descriptions into features of the constructive procedure. n71 Because Rawls has no way (or at any rate makes no attempt) to prove the rightness of his particular way of designing the procedure of construction, he cannot (nor does he claim to) prove the rightness of justice as fairness simply by showing that its principles pass the political constructivist test according to his particular procedural design. n72 So it cannot be for the sake of proving rightness that Rawls undertakes his demonstration that the principles issue from the procedure. Rather, it is for the sake of giving shape and sinew to the conception for which the black-letter principles stand, filling in the conception's visionary inspiration and normative content, while at the same time providing support for the argument that the conception is a reasonable - indeed the most reasonable - one for us. n73

Acceptance of a constructivistically generated political conception as right or most reasonable finally depends, then, on a reflective process in which "we" the audience apply the candidate conception's abstract black-letter principles of justice to various concrete issues and match the results against our direct intuitions of the answers required by justice. When we find an apparent mismatch, we must then determine whether we should revise the principles or our intuitions. n74 The better the principles seem to be doing over all, the more we may come to find that discrepant intuitions have to give way. When we find them refusing to give way - when they prove to be "considered convictions" n75 at odds with the principles - we then have to choose between revising the principles and revising our initial interpretations of them. What would set the line, then, between principle and interpretation? The answer is knowledge of how the principles are derived from a certain construction into which certain conceptions of society and persons, drawn from a certain political culture, have been modeled. This background knowledge is itself a part of the complete political conception of justice under scrutiny, n76 capable (as lawyers know) of constraining choice among verbally admissible readings of the black-letter principles. Now, it might happen that no reading of the black-letter can be found that squares with both the interpretative background and our stubbornly resistant concrete convictions. In that event, it will be the black-letter and,  [*1823]  behind it, the procedure of construction, and the correspondent conception of society and persons that will have to be revised. Ideally, we move back and forth among justice intuitions, interpretations, black-letter principles, the procedure of construction, and conceptions of society and person, adjusting here and there, until we finally come to rest in the idealized state of satisfaction that Rawls calls "reflective equilibrium." At that point, we will have identified the political conception of justice that is right or most reasonable for us. n77



3. The original position and the two moral powers.
 


A procedure of construction, we said, is a situation of choice laid out to represent attributes of society and person that ought to help shape a conception of political justice. In Rawls' view this means a conception for a deeply pluralized society committed to free democratic institutions, which in turn means that the relevant attributes are those given by the correlative ideas of society as a fair scheme of cooperation and of free and equal persons motivated by two moral powers. In the original-position construct, the idea of society as a fair scheme of cooperation is represented by the conditions of choice. Not only must the parties choose a unified and abstractly formulated set of principles to apply for all time to all basic structural questions, they must do so from behind the veil of ignorance. These conditions represent the idea of the fairness of the terms selected. n78 The veil makes each party into a representative for any and all members of a modern plural society. n79

How, then, are the two moral powers of persons and their correlative motivations modeled in the original-position constructive device? According to our intuitive notion of constitutional justification, n80 we might have expected Rawls to have the parties simply decide which principles of justice are best designed to contribute value to the lives of persons conceived as possessing both of the moral powers and as concerned with developing and exercising both. Strikingly, that is not what he does. Rather, it is only the second moral power - that of rationally holding to, revising, and pursuing one's own conception of the good - that Rawls thus straightforwardly builds into his construct. The construct directs the parties who choose a conception of justice to do so in a rationally calculative way, as if the sole concern of their constituents is to optimize the prospects for successful exercise of the second moral power. n81 Moreover, Rawls expressly forbids the parties to assume that development and exercise of  [*1824]  a capacity for a sense of justice is a part of the conception of the good actually held by all (or indeed any) of the persons on whose behalf they are supposed to be making a rationally preferred choice. n82

How, then, is the original position, as a device of representation, supposed to represent the first moral power, the capacity of persons politically conceived to act upon a public conception fixing fair terms of cooperation? Rawls says that the situation of choice is so constructed as to give the parties reason to take account of their constituents' capacities for justice or, in other words, their propensities for civil cooperation on terms that all can accept as reasonable. This may seem surprising, given that the parties must choose strictly with a view to optimizing their constituents' prospects for realizing their own several conceptions of the good, and furthermore may not treat the manifestation or exercise of justice as a stock component of individual conceptions of the good for themselves. But Rawls says that the parties in the original position, rationally pursuing self-protective ends on behalf of their constituencies, will be instrumentally well-advised to take into account the (ascribed) fact that citizens have propensities for justice that can motivate them, regardless of whether anyone is supposed to count this fact about herself as directly contributory to her own well-being or the value of her life. If people in fact have such a propensity, regardless of whether they value intrinsically their having it or their exercise of it, then tapping into the propensity is rational for parties concerned about the pursuit of whatever it is they do value. Appealing to this propensity can help secure "the great advantage to everyone's conception of good of ... a just and stable scheme of cooperation." n83 In this way, engagement of peoples' capacities for justice can serve as an effective means "to advance the determinate conceptions of the good of the persons [the choosing parties] represent." n84 And so this is how, even though as "rationally autonomous representatives" the parties are not moved by reasons of justice itself, it nevertheless does matter to them that "persons as citizens" are conceived as being moved in this way. n85



4. Characters and motivations.
 


Rawls' political constructivist argument posits a number of characters or standpoints, each with its distinctive motivational ascriptions. The characters and standpoints include (1) the representative "parties" who choose in the original position, motivated to do the best they can for those whom they represent as deputies; (2) those who are thus represented, the "citizens," each motivated by individual prospects for successful exercise of the second moral power; (3) politically conceived "persons" motivated by both moral powers - justice as well as pursuit of the good - and correlative conception-dependent desires; and (4) the audience for the political philosopher's justificatory effort, "you and I" assessing the reasonableness for us of the total conception. This total conception  [*1825]  is composed of (i) the principles the parties would choose, (ii) the layout of the parties' situation of choice, (iii) the manner of modeling into that layout the motivational attributes of politically conceived persons, and (iv) the interpretation of democratic, constitutional culture from which the political conception of the person is drawn. n86

Notice, now, that while motivational features are specifically ascribed by Rawls to the characters in classes (1), (2), and (3), none are separately specified for you and me, the audience constituting class (4). Motivational attributions for characters in the first three classes are certainly parametric for the procedure of construction that organizes Rawls' politicalconstructivist argument in support of justice as fairness. Without specification of attributes for these characters, the argument is obviously incomplete. But neither does it seem complete without some motivational imputation to class (4). What, then, if anything, does Rawls' conception imply about the motivational attributes of you and me, the audience? It is implicit, no doubt, that our motivations are such that the philosopher's politicalconstructivist argument is appropriately addressed to us. But what are these motivations? The question seems important. Considering, after all, that the philosopher is inviting "us" to submit our fates (politically speaking) to justice as fairness, we might want to know whether his argument is addressed only to those of us who perceive "our" motivations (politically speaking) as matching those of "persons" according to the Rawlsian political conception of them, the motivations that Rawls has modeled (if somewhat circuitously) into his recommended procedure of construction.



5. Taking stock.
 


Since to most readers it will be the first moral power, the capacity for a sense of justice, and correlative motivations that seem most dubious ontologically, let us focus on it. What attributions is Rawls making to us the audience with respect to the capacity for justice and the interest in exercising it? Is he saying that we have them in fact? That we in fact hold some belief about our having them? That if we don't hold some such belief, then we can't coherently subscribe to constitutional democracy? Or are we now, perhaps, in a position to conclude that Rawls is not, after all, attributing to us anything at all regarding the capacity or motivation for justice - not a fact, not a belief, not even any sort of need for a belief? If Rawls has made a strictly constructive use of the first moral power, then he has sought to move us toward approval of the principles of justice as fairness by showing how they would issue from a procedure of construction whose design or workings were shown to be inspired in some way by the idea of the first moral power, the capacity and motivation for justice. This is certainly not the same as asking us directly to validate that idea in any way (either as true in fact or true to our beliefs, whether speaking politically or more broadly), for any purpose beyond its contribution to the project in constructivist political justification for which it was specifically drawn.  [*1826] 

But we move too fast. Even such a roundabout use of the political conception of the person suggests strongly that the conception is one that Rawls expects you and me to find attractive. And we have stronger grounds than that for concluding that Rawls must be attributing to us the audience some sort of belief (at least) in the first moral power. Rawls asks us to envision that in the original position the parties rely on citizens' capacities for justice to assure themselves of the effectiveness and stability of the principles of justice as fairness. n87 This assurance is a distinct component of the persuasion intended by Rawls' use of the constructivist method. Somewhere out there (although not in Political Liberalism), a persuasive case may be found for justice as fairness that presents itself as independent of belief in the capacity and motivation for justice. However, if we want to hang on to this persuasion or profess to be persuaded by it, then we can't now toss overboard all belief in this capacity and motivation. To be persuaded by Rawls is (in part) to be moved by either the transcendental-deductive proposition that constitutional-democratic politics presupposes the idea of the capacity for justice (in which case commitment to the one demands belief in the other), or the empirical-ideological proposition that we enable ourselves to commit to constitutional democracy by endorsing the idea of this capacity. In either case, this idea's status in Rawls' argument is stronger than that of a scaffold-like constructive tool whose contribution ends with the process of construction. Yet the conception's status may still be that of an idea of reason internal to a certain project of political justification. It may still be that the only validity claimed for the idea of the capacity and motivation for justice is rational necessity, relative to the demand for a solution to the problem of political possibility that our author has propounded.



IV. Toward Moral Consensus
 




A. Stability and Reproduction
 


Rawls makes stability a secondstage test for a conception of justice that appears in other respects attractive to reflective equilibrium. A conception is stable if it can hold the freely given loyalties of adherents to all moral, religious, and metaphysical doctrines that can be expected to arise and survive critical reflection in the public culture that the conception itself is expected to sustain. A conception that fails this test is not reasonable at all, much less can it be right or the most reasonable for us. n88

Does the demand for stability inject (unwanted) ontological force into the political conception of the person? Is not Rawls, after all, contending something like the following? First, the principles of justice as fairness are understood to issue from a procedure of construction designed with reference to persons endowed and motivated in specific ways. Second, on independent psychological grounds we can predict that a society effectively and publicly governed by the principles will tend toward reproduction of inhabitants with like  [*1827]  motivations. Third, since the persons thus engendered by the regime will understand how the regime's conception of justice was constructed with them in mind, they will be at home in the regime, and it will be stable.

I don't think this is exactly Rawls' argument, but suppose for a moment that it were. Then one of the things Rawls would be saying in favor of justice as fairness is that putting the conception into effect builds characters like the ones described by the political conception of the person. True, our author would not be advancing this character-building consequence as the motivating aim or point of his favored constitutional conception, but he would still be resting a part of his defense of the conception on a prediction of this consequence. So the claim that adoption of a certain institutional conception will lead to people being a certain way is a load-bearing part of the philosopher's justification of the conception. And hadn't that then better be a way that the philosopher stands ready to affirm as good for people to be, according to their natures?

The answer (we should know by now) is that we don't have to understand the process of stabilizing reproduction as reaching to people's ways of being in any ultimate sense, or for all of life's purposes. We can understand it as a process of reproduction of people's self-concepts relative to politics. The argument for stability, then, is that a regime governed by principles issuing from a constructive procedure designed to reflect a conception of persons, politically speaking, as self-authenticating sources of valid claims n89 will be conducive to people's regarding themselves as self-authenticating sources of valid claims, politically speaking. The argument sounds in ideology, not ontology.



B. The Good of Justice: (Overlapping) Consensus and (Full) Autonomy
 


What is the good of justice, according to Rawls? Justice signifies a solution to the problem of political liberalism, peace and freedom without oppression. Is that all? Wouldn't it be enough?

Rawls avowedly intends a regulative mission for justice as fairness. Within the broad practice of constitutional democracy, many important issues remain obstinately unsettled. One task of political philosophy, Rawls says, is to examine whether some underlying basis of agreement can be uncovered for resolving some of these questions or at least narrowing disagreements. n90 To that end, some degree of abstraction is a virtue in a regulative conception of political justice. When we are striving to resolve disagreements with others, Rawls says, we must look for premises that all can "accept for the purpose of establishing a working agreement." n91 To that end, it can sometimes be helpful to postpone concrete issues pending establishment of common ground at higher levels of abstraction. n92 But Rawls is at least as sensitive to a converse point: Parties who disagree hopelessly over "the highest things" may happen to find  [*1828]  agreement at lower levels. "Different premises," as Rawls writes, "may [support] the same conclusions." n93 In constitutional democratic societies, Rawls believes, we have the best chance of finding this sort of midlevel overlap when we focus on the main political, social, and economic institutions of the regime, that is, the basic structure. n94 This suggests that a publicly affirmable conception of justice should aim in the first instance at criteria for the basic structure, framed at a moderately high level of abstraction (witness the two principles of justice).

A political conception of justice, such as justice as fairness, is of course meant to supply higher-order criteria for lawmaking, both constitutional and ordinary. n95 Given the fact of reasonable pluralism, n96 Rawls thinks the best way to find consensus on a public regulative conception is to confine the conception's scope to the basic structure. He hopes it is possible to work out a moderately abstract, regulative conception of basic structure without having to take positions on ethical and metaphysical issues over which comprehensive doctrines must divide. n97 A further hope is that if we can find a moderately abstract, clear, and simple expression of a conception of political justice that is acceptable to every reasonable comprehensive view, then political results issuing from this conception should be broadly acceptable. n98

Consensus, then, is a pivotal concern for Rawls, but not all consensuses are alike in value. Rawls wants a public regulative conception of justice to be based on a true moral consensus and not on a diplomatic modus vivendi. To base the conception on a modus vivendi, Rawls says, is to make it "political in the wrong way." n99 But what, precisely, is the difference, and why is it so important?

What makes an agreement a "mere" modus vivendi is that each party regards the agreement as strictly instrumental to some good of his or hers apart from any good found in the agreement itself. In a modus vivendi, the agreement has no intrinsic, noninstrumental value; parties participate in it to further their own ulterior interests. Contrast the case in which the parties regard participation in the agreement as good for them for its own sake, as, say, a moral good. Each person would then regard agreement as both a common aim or social good and as a constituent of each of their goods taken severally. This is  [*1829]  an especially intensive way - this responsiveness to moral interest or moral motivation - in which overlapping consensus can support justice in a society where it is found. n100 The difference from a strictly instrumental agreement seems plain. What is not so apparent, however, is why people would find intrinsically valuable their participation in a social consensus over principles to regulate the basic structure of their society. On what understanding of these people's natures would it make sense for them to find intrinsic - not just instrumental - value in this state of affairs?

An answer may be found in the conception of the person as possessed of higher-order interests in the development and exercise of both the moral powers, the capacity for justice as well as that for self-determined pursuit of the good. On that understanding, overlapping consensus on a public regulative conception of justice is an intrinsic good for every participant because it puts within each one's reach a certain enabling condition of a good life (insofar as the conduct of politics in one's society bears on the goodness of a life). Overlapping consensus enables satisfaction of the conceptiondependent desire to realize in one's person an ideal conception of liberal citizenship. n101 Overlapping consensus is the condition upon which the first moral power, that of grasping and acting upon a public conception of justice, can be realized without grievously infringing the second moral power, that of holding to one's own autonomously determined conception of the good. That is what Rawls calls a person's full autonomy. n102 Now, if full autonomy is a good, for whom is it a good? Apparently, for persons conceived as the political conception of the person conceives them.

To recapitulate, the strongest argument that justice as fairness has regulative force for a society appears to rest in some part on the claim that justice as fairness supports a special kind of consensus that members of the society have good reason to value intrinsically. n103 But the claim that any sort of consensus can possibly have intrinsic value for anyone depends, in turn, on what appears to be a quite specific and distinct idea of the flourishing or perfection of a person. In sum, these two features of the total conception suggest that the full  [*1830]  regulative force of justice as fairness is available only to those for whom this idea of personal flourishing is already a correct or compelling one. n104

Accordingly, questions loom: How might it be that this specific account of the person is commonly compelling upon interlocutors coming from a deeply divided plurality of comprehensive ethical and metaphysical views? And what is the political method for soliciting endorsement from such a diverse constituency of principles geared to such a seemingly strong conception of the person? n105 The answer seemingly can't be that the conception is true. That is not, at any rate, the answer Rawls gives. He relies, rather, on the expectation that the conception is intuitively salient to diverse parties all ensconced in the culture of constitutional democracy.

Note how this points to a strong inferential connection between the hypothetical ability of those living under justice as fairness to reach consensus on the legitimacy of that conception and "our" ability now to discern the conception's fittingness to ourselves as we are now or wish to become. The political conception of justice as fairness is supposed to represent a compelling organization of fundamental political values as we now know them. The conception of justice and its correspondent conception of the person are tendered as clarifications of ideas and beliefs already implicit in extant constitutional, democratic culture. But that gives us reason to expect that something resembling the extant range of comprehensive views would flourish under justice as fairness. It follows that if we did not recognize the fittingness of justice as fairness to our condition (actual or desired) as we consciously perceive it, that would call into serious question the claim that justice as fairness is a stable conception. n106

One sees, then, why Rawls once wrote that what ultimately justifies a political conception of justice is "congruence with our deeper understanding of ourselves and our aspirations, and our realization that, given our history and the traditions embedded in our public life, it is the most reasonable doctrine for us." n107 One sees, too, why Rawls called on his readers to imagine not that citizens "choose" these aspirations (for that would be to represent citizens ontologically - and deeply controversially - as transcendental subjects, pure wills existent prior to their ends n108 ) but rather that they discover themselves already "holding" these aspirations as "ideals that they have taken in part from the culture of their society." n109  [*1831] 



V. Conclusion: Relativity and Subjectivity
 


We have seen the ways in which Rawls puts a certain motivating conception of the person to use in the constructive endeavor of political liberalism. So far as we have been able to find out, these ways have required no claim of an ontological status for the conception, independent of the constructive endeavor in which it appears. For all we have seen, the conception states no more than a possibility condition for the endeavor. The argument, then, is that the philosophical project of political liberalism is possible for us (if it is) because, as it happens, a certain conception of the person appeals to us as an account of a truth of our being.

This reading takes us to the brink of the debate over the alleged relativism in Political Liberalism. n110 Does the book really mean no more than to commend political liberalism and justice as fairness to those for whom, by reason of cultural situation, the Rawlsian conception of the person is regulative already? Taking the book to mean no more than that, the conception of the person is comfortably internal to the project. But there are also those who would take political liberalism, the project, to be a more globally commendable guide to the conduct of politics. n111 As for them, it seems that by adopting Rawls' justificatory arguments they would also buy into some strong, distinctive ideas about what gives value to lives, humanly speaking. It seems that in order for Political Liberalism to be a globally relevant guide to what is right institutionally, the conception of the person must be correspondingly viewed as a case of what Martha Nussbaum calls "internal essentialism" - that is, a product of evaluative inquiry (with or without reference to "metaphysical foundations") into "what we really think about ourselves [qua human] and what holds our histor[ies as human] together." n112

It is a fair question whether the book can respectfully be read to lay claim to anything less. For surely (the question would posit) the political conception of justice as fairness must be meant to have prescriptive and critical bite somewhere on Earth. Indeed, it must. But couldn't this "somewhere" be right here, in constitutional-democratic cultures whence the Rawlsian conception of the person is drawn? A leading aim of Political Liberalism is to persuade an audience, already knowing themselves as broadly committed to liberal constitutionalism ("constitutional democracy") that justice as fairness correctly interprets their broad commitment. But within the family of liberalisms, justice as fairness is after all a somewhat contentiously egalitarian member. n113 Constitutional democracy as practiced today in the United States, for example, almost  [*1832]  certainly does not satisfy the difference principle (and quite arguably does not satisfy the liberty or opportunity principles, either).

Now consider the form of Rawls' argument: (1) We hold constitutional democracy (broadly conceived) to be the right form of political ordering for us; (2) correspondingly, we think of social life as a fair scheme of cooperation and of ourselves as beings free and equal in our possession of the two moral powers and the correlative ethical and moral motivations; (3) but from these ways of thinking of society and persons follows the egalitarian content of justice as fairness, along with its implicit critique of contemporary constitutional practice in the United States. No doubt we can strenuously dispute the soundness of the inferences from (1) to (2), and from (1) and (2) to (3). Insofar as the inferences are compelling, however, the political conception of the person figures here as an intermediate term in an internal critique of constitutional democracy. By "internal critique" I mean a demonstration of how concrete practice (in the United States, for example) deviates from norms that said to be are rationally reconstructible from the broader concept of the practice. n114 Figuring in this internal-critical capacity, the conception of the person would have critical bite. Interestingly, the conception in this capacity would also apparently be secure against the postmodernist critique of subjectivity: Here we would have Rawls claiming to derive a certain depiction of personsassubjects from the practical concept of constitutional democracy or from certain empirical cultural content. There we would have the critics of subjectivity claiming that the depiction is (ontologically!) wrong, mistaken, illusory. The two claims, it seems, would pass each other as ships in the night.

Thus does Political Liberalism fend off the critique of subjectivity. Or rather, thus does it if we read the book, on its prescriptive side, as intending only an internal critique of constitutional democracy - prescribing to those who practice that political form but prescribing not to those who practice it not. Does this mean, then, that relativism is (in this case, at any rate) the price of evading the critique of subjectivity? I don't know. Who can do better than to live the best she can according to the sort of being she finds herself believing herself to be - believing, that is, reflectively, unshakeably, recurrently (which is not to say incessantly, at every waking moment)? And what is (avoidably) relativist, then, about a prescription to live that way? If nothing, then how is Rawls setting up for relativist prescription by offering the political conception of the person as an account of how persons, qua participants in constitutional democracy, reflectively and recurrently find themselves believing themselves to be?

Suppose you were determined to read Political Liberalism for ethical wisdom on a personal level. The wisdom then would be: For you as a participant in constitutional democracy, living the best you can according to the way that you reflectively and recurrently believe yourself to be means living under the  [*1833]  constitutional conception of justice as fairness. But if you do read the book that way, then for you its implicit response to the critique of subjectivity will not be evasion, it will be confrontation. Confrontation by challenge. The challenge is to divest yourself, if you can, of belief that constitutional democracy is, in fact, the right form of political ordering for you and your kind. n115 Nothing in Rawls' argument would require you to answer the question that obviously now looms: whether (for this purpose) your kind is anything less than the human kind. Nevertheless, you might feel some pressure to respond.

FOOTNOTES:
n1. To find out what is meant by "political," read on.

n2. P. 19.

n3. P. 19.

n4. P. 19.

n5. See pp. 73-74, 105-106.

n6. "Conception-dependent desires" are desires to act from the principles we see as "belonging to, and ... helping to articulate, a certain rational or reasonable conception, or a political ideal." P. 84.

n7. John Rawls, A Theory of Justice (1971).

n8. Alan Ryan, How liberalism, politics, come to terms, Wash. Times, May 16, 1993, at B8.

n9. It's true that law clerks come from law schools as graduates. It's also true that numbers of them return to law schools as professors.

n10. See John Hart Ely, Democracy and Distrust 58 (1980) ("We like Rawls, you like Nozick. We win, 6-3. Statute invalidated.").

n11. These lectures appeared in revised form in a 1980 article. John Rawls, Kantian Constructivism in Moral Theory: The Dewey Lectures 1980, 77 J. Phil. 515 (l980). In Political Liberalism, Rawls reports that his reflections on the dissensus prompted something of a break with his earlier ideas in A Theory of Justice. Pp. xv-xvii.

n12. They also affect important topical issues in political theory, such as communitarian critiques of liberalism and anxieties over rights talk. I do not pursue these matters here. For prior discussions, see Frank I. Michelman, Justification (and Justifiability) of Law in a Contradictory World, in NOMOS XXVIII: Justification 71, 82-94 (J. Roland Pennock & John W. Chapman eds., 1986); Frank I. Michelman, Super Liberal: Romance, Community and Tradition in William J. Brennan Jr.'s Constitutional Thought, 77 Va. L. Rev. 1261, 1306-1312 (1991); Margaret Jane Radin & Frank I. Michelman, Pragmatist and Poststructuralist Critical Legal Practice, 139 U. Pa. L. Rev. 1019, 1035-39 (1991).

n13. See Postmodernism and Law: A Symposium, 62 U. Col. L. Rev. 489 (1991); Symposium, Beyond Critique: Law, Culture, and the Politics of Form, 69 Tex. L. Rev. 595 (1991); Symposium, The Critique of Normativity, 139 U. Pa. L. Rev. 801 (1991).

n14. According to Rawls, citizens "regard themselves [politically] as self-authenticating sources of valid claims" and "as being entitled to make claims on their institutions so as to advance their conceptions of the good." P. 32.

n15. See, e.g., Pierre Schlag, Normativity and the Politics of Form, 139 U. Pa. L. Rev. 801, 805 (1991) ("Legal thinkers ... represent themselves as ... selfdirecting individual liberal humanist subjects at once rational, morally competent, and in control of their own situations, the captain of their own ships, the Hercules of their own empires, the author of their own texts. It isn't so.").

n16. "Normativity" broadly refers to the unabashedly prescriptive character of typical legal scholarship and its focus on questions of how some personal or institutional agent of the law ought to (choose to) act or what the agent ought to (choose to) do. See, e.g., Pierre Schlag, Normative and Nowhere to Go, 43 Stan. L. Rev. 167, 171, 177 (1990). More narrowly defined, the term refers to "comprehensive normative rationality," or the aim of producing " "a norm that is complete, self-sufficient, separable, trans-situational, non-contradictory, and non-paradoxical within its intellectual or legal jurisdiction.' " Mark V. Tushnet, The Left Critique of Normativity: A Comment, 90 Mich. L. Rev. 2325, 2326 (1992) (quoting Schlag, supra note 15, at 839). A prohibition on comprehensive normative rationality does not foreclose the practice of "local" or "thin" normative judgment. Id. Yet the critique of subjectivity implies a relentless critique of normativity "all the way down," id. at 2347, because if subjectivity "isn't so," then (it would seem) normative scholarship is aimless and idle, an imposition on us all, and scholars had better concentrate on discovering and describing our situation. See, e.g., Richard Delgado, Norms and Normal Science: Toward A Critique Of Normativity In Legal Thought, 139 U. Pa. L. Rev. 933, 959-60 (1991) (urging that legal scholars make "law" their subject matter, "actually observing and describing it"); Schlag, supra note 15, at 889 (criticizing scholars for their failure to explore "the context of academic legal thought").

n17. See Radin & Michelman, supra note 12, at 1021-22, 1053 & n.125 (noting that Schlag himself emphasizes the issue of "performative contradiction" in the critique of normativity).

n18. Cf. Pierre Schlag, The Problem of the Subject, 69 Tex. L. Rev. 1627, 1730-31 (1991) ("In his most educated moments, [the] liberal subject understands that he is socially and rhetorically constructed, but nonetheless retains his autonomy to decide just how constructed or autonomous he really is.").

n19. For some views on this problem, see Radin & Michelman, supra note 12.

n20. Mark Tushnet interprets Rawls' recent work as "accepting the critique of comprehensive normative rationality but arguing that the critique does not undermine ... the claims of traditional liberalism." Tushnet, supra note 16, at 2336. My proposal parallels Tushnet's reading, but it shifts the focus from normativity to the problem of the subject.

n21. This notion is more fully explained in the text accompanying notes 41-53 infra.

n22. P. 11. Of course, Rawls has in mind that it is the regulative conception of justice that joins the various institutions together into a conceptually unified system.

n23. P. 291. I have used Political Liberalism's formulation of the principles. The respects in which this formulation differs from that in A Theory of Justice are not material to this essay.

n24. The "equal basic liberties" are specified by a list as follows: "freedom of thought and liberty of conscience; the political liberties and freedom of association, as well as the freedoms specified by the liberty and integrity of the person; and ... the rights and liberties covered by the rule of law." P. 291.

n25. The first principle of justice (principle "a"), also called the "liberty" principle, lexically outranks the second principle (principle "b"). Within the second principle of justice, the first subprinciple, the "opportunity" principle, lexically outranks the second subprinciple, the "difference" principle. See p. 6; see also Rawls, supra note 7, at 30203. "Lexically outranks" means that a higherranking principle must be fully satisfied before attempting to satisfy the next principle. The analogy is to a dictionary, in which no words beginning with "b" (not even "Baal") can appear until after "azure" has been given its due. See id. at 4243 & n.23.

n26. Rawls distinguishes two kinds of "constitutional essentials." The first are principles that dictate the organization and powers of government, as well as the political process. The second are principles that specify the "equal basic rights and liberties of citizenship that legislative majorities are to respect." P. 227.

n27. Principles of basic justice regulate the "basic matters of distributive justice, such as ... equality of opportunity [and] social and economic inequalities." P. 228. These issues represent the bulk of the territory controlled by Rawls' second principle of justice.

n28. See, e.g., Ronald Dworkin, Life's Dominion 201-04 (1993).

n29. See Thomas Hobbes, Leviathan or the Matter, Forme and Power of a Commonwealth 1-52 (Collier Books 1962) (1651).

n30. See Roberto Unger, Passion: An Essay on Personality (1984).

n31. See Schlag, supra note 18, at 1731 (speaking of the "default subject").

n32. See, e.g., Dworkin, supra note 28, at 20006; Joseph Raz, The Morality of Freedom 20405 (1986).

n33. See, e.g., Rawls, supra note 7, at 574-75 ("The desire to express our nature as a free and equal rational being can be fulfilled only by acting on the principles of right and justice as having first priority.... How far we succeed in expressing our nature depends upon how consistently we act from our sense of justice as finally regulative."); Michael Sandel, Political Liberalism, 107 Harv. L. Rev. 1765, 1773 (1994) (book review) ("The political conception of the person ... closely parallels the Kantian conception of the person, with the important difference that its scope is limited to our ... identity as citizens.").

n34. See note 29 supra.

n35. I should say something here about my use of the third person in referring to liberal theorists. But for the awkwardness, I would not hesitate to say "we." I gladly claim membership in the family.

n36. Cf. Schlag, supra note 18, at 1730 ("The [liberal] supposition is that the individual subject is essentially ... autonomous, coherent, selfdirecting, integrated, rational, and originary."). By contrast, one might take the view that consciousness and agency are attributes of God alone, of whom our several "selves" are but contingent manifestations, or that all behavior is determined and all consciousness fabricated by socialsystemic processes beyond the control of individuals.

n37. See text accompanying notes 16 supra.

n38. See p. 33 (explaining that the political conception of the person describes "the way in which citizens regard themselves in a democratic society when questions of political justice arise").

n39. See, e.g., p. 29.

n40. See pp. 29-35.

N41. See notes 23-25 supra and accompanying text.

n42. "A ... conception is ... comprehensive when it includes conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relationships, and much else that is to inform our conduct, and in the limit to our life as a whole." P. 13.

n43. See pp. 12-13 ("[A] distinguishing feature of a political conception is that it is presented as freestanding and expounded apart from, or without reference to, any such wider background.").

n44. See, e.g., Raz, supra note 32, at 46; Ronald Dworkin, Foundations of Liberal Equality, in XI The Tanner Lectures on Human Values 1, 36 (1990).

n45. See text accompanying notes 55-58 infra.

n46. P. 13.

n47. Pp. 13-14.

n48. P. 8 ("We collect such settled convictions as the belief in religious toleration and the rejection of slavery.").

n49. See pp. 13-15.

n50. See pp. 18-19; text accompanying notes 24 supra.

n51. See text accompanying note 107 infra.

n52. See text accompanying notes 16 supra.

n53. See text accompanying note 40 supra.

n54. See text following note 114 infra.

n55. P. xviii.

n56. In an overlapping consensus, a political conception appears morally right to each one of a plurality of conflicting comprehensive views. Each of the participating comprehensive views converges on the moral rightness of one and the same political conception without having to "bracket" the political from the rest of life, ethics, or the truth of the world. See, e.g., pp. 150-54. This is not, however, equivalent to saying that no bracketing occurs at any stage of thought. The criterion of "freestandingess" for a political conception of justice, see notes 42-43 supra, suggests that every comprehensive view that finds such a conception morally right must also find it morally right to accept some bracketing of the political. Perhaps it's precisely the sharing of this feature by the participant views that qualifies them as "reasonable" and eligible for participation in the overlapping consensus, thus making the moral consensus possible.

n57. P. 36; see pp. xvi-xvii. The potentially divisive nature of reasonable pluralism is aggravated by "burdens of judgment," as Rawls calls certain ineluctable causes of disagreement even among persons who ostensibly affirm the same governing principles. The following are causes of this disagreement: (a) difficulties in assessing conflicting, complex, empirical evidence; (b) disagreement over the relative weight accorded to competing considerations; (c) ambiguities in defining moral and political concepts; (d) conflicts arising from different life experiences and perspectives; (e) incommensurability of relevant competing considerations; and (f) the impossibility of accommodating all recognized goods in any one political system. See pp. 54-58.

n58. See p. 37.

n59. For further discussion of the conditions Rawls posits as necessary to achieve this consensus, see text accompanying notes 67-68, 76 infra.

n60. The term derives from Immanuel Kant, whose philosophy undertook to "deduce" from certain immediately gripping and undeniable aspects of selfconscious human experience (such as perception and discrimination of external objects or impulses of obligation and duty) the existence of certain other conditions of being that could not themselves be directly known or intuited. See H.J. Paton, The Categorical Imperative: A Study in Kant's Moral Philosophy 2023, 20203 (1947).

n61. Rawls at one point classifies the political conception of the person as a " "conception of practical reason,' " explaining that this conception responds to the question: "What must persons be like to engage in practical reason?" Pp. 107-08.

n62. See text accompanying note 40 supra.

n63. Cf. William Powers, Jr., Constructing Liberal Political Theory, 72 Tex. L. Rev. 443, 464-65 (1993) (reviewing Political Liberalism) (concluding that Rawls formulates motivating values and traits for his argument by combining a concern for "desired results" with description of "traits commonly accepted in our culture as aspects of moral ... persons"). Note that the transcendental and ideological senses are logically both separable and combinable. So far as logic is concerned, Rawls could intend the transcendental sense but not the ideological, the ideological sense but not the transcendental, or both senses simultaneously.

n64. See text accompanying notes 26-28 supra.

n65. See text accompanying notes 41-45 supra.

n66. Compare Powers, supra note 63, at 450: "In Political Liberalism, any autonomy achieved through adherence to the principles of justice is political, not moral, autonomy. By adopting the principles of justice, we express our "reasonable' political nature, that is, our desire to engage in cooperative social life." The first sentence's sense is unclear, simply because it's unclear what work "political" does in the second sentence. No doubt we can sometimes advance analysis by subdividing the class of desires into numerous subclasses, and "political" may well be a fit name for a subclass containing the desire for engagement in social cooperation. Nevertheless, to say that the (political) desire for cooperative social engagement is a salient part of our nature would be to speak comprehensively about us - hardly different, in that respect, from someone saying we are creatures fit by nature for life in cities.

n67. See pp. 2228.

n68. Primary goods are advantages and resources of which anyone supposedly would wish as many or as much as possible, regardless of his or her particular aims in life. These "all-purpose means" include, but are not limited to, rights and liberties, occupational and office-holding opportunities, income and wealth, and social bases of individual self-respect. See pp. 181, 227.

n69. See pp. xx-xi, 89-98.

n70. See text accompanying note 55 supra.

n71. We shall soon look more closely at some details of the translation. See text accompanying notes 78-85 infra.

n72. The details of the Rawlsian constructivist design are controversial even among Rawls' egalitarian-liberal kindred spirits. See Bruce A. Ackerman, Political Liberalism, 91 J. Phil. - (forthcoming 1994) (book review).

n73. See Powers, supra note 63, at 464; id. at 457 ("Constructivism ... holds that humans construct moral values, but if we are careful about the conditions under which the values are constructed, they can transcend individual biases and preferences." (citing T.K. Seung, Intuition and Construction 17 (1993)).

n74. See p. 45.

n75. P. 45.

n76. Rawls calls this background knowledge the publicity condition. P. 67.

n77. P. 28.

n78. Pp. 304-05.

n79. See pp. 24-25. In Political Liberalism, Rawls takes pains to explain the veil of ignorance as a device for representing a situation of full normative reciprocity. This veil allows citizens to choose sets of regulative principles for their society on the understanding that the only sets available for choice are those that every member can reasonably accept, regardless of differences of social station, economic lot, "comprehensive view," or particular life projects. Pp. 24-25, 27.

n80. See text accompanying note 28 supra.

n81. See p. 305. The parties understand, though, that the second moral power includes capacities to choose and revise a conception of the good, as well as to pursue rationally a currently held conception. How a person exercises the power to revise a conception of the good may itself be an aspect of the good as the person conceives it. See pp. 310-15. We might call this the romantic strain in the Rawlsian political conception of the person. See text accompanying note 32 supra.

n82. Pp. 315-16.

n83. P. 316.

n84. P. 318.

n85. P. 315.

n86. See pp. 27-28.

n87. See text accompanying note 83 supra.

n88. See pp. 140-42.

n89. See note 14 supra.

n90. See pp. 8-9, 48.

n91. John Rawls, Justice As Fairness: Political Not Metaphysical, 14 Phil. & Pub. Aff. 223, 229 (1985).

n92. See pp. 115, 192; John Rawls, The Priority of Right and Ideas of the Good, 17 Phil. & Pub. Aff. 251, 261-62 (1988).

n93. John Rawls, The Idea of an Overlapping Consensus, 7 Oxford J. Legal Stud. 1, 9 (1987); see also p. 4 ("The most intractable struggles ... are ... for the sake of the highest things: for religion, for philosophical views of the world, and for different moral conceptions of the good."). For a recent expression of a like view in the context, see Cass R. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 771-73 (1993).

n94. See pp. 11-13; Kurt Baier, Justice and the Aims of Political Philosophy, 99 Ethics 771, 772-73 (1989) (summarizing Rawls' belief that in order for a nonutopian conception of justice to gain the support of an overlapping consensus, it must satisfy four conditions: it must be capable of bypassing philosophy's longstanding controversies; it must be political; it must be liberal; and it must steer a course between two extreme strands of liberalism). On justice as fairness as a body of range-restricted, midlevel principles, see Thomas E. Hill, Jr., Kantian Constructivism in Ethics, 99 Ethics 752 (1989).

n95. See Rawls, supra note 93, at 5-6.

n96. See text accompanying note 48 supra.

n97. See pp. 10-11, 152.

n98. See pp. 35, 156, 230.

n99. P. 40; see also pp. 141-42.

n100. See pp. 147-48, 168, 208, 316-17; see also Joshua Cohen, Democratic Equality, 99 Ethics 727, 748-49 (1989) ("To have a sense of justice is to have the aim of coordinating action in ways that provide favorable conditions for the expression of a wide range of human powers in pursuit of a plurality of aims."); Gerald Doppelt, Is Rawls's Kantian Liberalism Coherent and Defensible?, 99 Ethics 815, 831 (1989) ("Rawls's Kantian citizens do not regard a just way of social life as a mere means to the realization of their individual ends. Rather, the realization of their commonly valued Kantian capacities is inconceivable apart from a just structure of social interaction and reciprocal recognition without which they could not be the persons they take themselves to be, in the Kantian view."); William A. Galston, Pluralism and Social Unity, 99 Ethics 711, 715 (1989) (explaining that because the exercise of the two moral powers is experienced as good, not only is justice a highest-order moral power and interest, but also there is an intrinsic impulse to develop and employ it in society).

n101. See note 6 supra and accompanying text.

n102. See pp. 77-78. Rawls writes that full autonomy is "a political and not an ethical value," p. 77, and he writes that citizens, by honoring principles of justice, "show themselves autonomous, politically speaking." P. 78. But see note 66 supra and accompanying text.

n103. See p. 207.

n104. See Galston, supra note 100, at 714, 717.

n105. See Jean Hampton, Should Political Philosophy Be Done without Metaphysics?, 99 Ethics 791, 804 (1989).

n106. See Joshua Cohen, Moral Pluralism and Political Consensus, in The Idea of Democracy 270, 281 (David Copp, Jean Hampton & John E. Roemer eds., 1993).

n107. Rawls, supra note 11, at 519; cf. pp. 90-95 (contrasting the features of rational intuitionism with those of political constructivism).

n108. Commentators have criticized A Theory of Justice for presenting the "self," ontologically, as having an unencumbered essence existing prior to all relationships and commitments. See Michael J. Sandel, Liberalism and the Limits of Justice 5-9, 19-23 (1982). In Political Liberalism, Rawls expressly denies that his account either of persons or the original position has this ontological significance. Pp. 26-27.

n109. Rawls, supra note 11, at 568-69; see also pp. 13-14.

n110. See, e.g., John Gray, Can We Agree to Disagree?, N.Y. Times, May 16, 1993, 7, at 35 (reviewing Political Liberalism) (describing Rawls' product as "not a political conception of general human interest, but an apology for American institutions as they are perceived from the politically marginal standpoint of American academic liberalism").

n111. See, e.g., Brian Barry, Good for us, but not for them, Guardian, Aug. 14, 1993, at 23 (reviewing Political Liberalism).

n112. Martha Nussbaum, Human Functioning and Social Justice, 20 Pol. Theory 202, 208 (1992); see also id. at 229 (contending that without a humanly essential account of the good, "we have no adequate basis for ... justifying the claim that any ... [practice] we encounter is unjust").

n113. On the egalitarian content of justice as fairness, see Cohen, supra note 106, at 277-81.

n114. For a discussion of the possibility of such critique with specific reference to Political Liberalism, see Frank I. Michelman, On Regulating Practice With Theories Drawn From Them: A Case of Justice As Fairness, in NOMOS XXXVII: Theory and Practice (Judith Wagner Decew & Ian Shapiro eds., forthcoming 1995).

n115. Down this path lies the idea of nonfoundationalist, humanly universal, "recursive" grounding for Rawls' model conception of the person. This would consist in showing that the Rawlsian "account of our self-conception" is not only latent in a certain public culture, but is also "the best account that can be given of the basic capacities presupposed by the practice" of political justification - or deliberation or discourse - itself. Kenneth Bayres, Constructivism and Practical Reason in Rawls, 14 Analyse & Kritik 18, 30 (1992); cf. note 61 supra.




Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003


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